FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD VON TOBEL,

Petitioner-Appellant,

v.

JAMES BENEDETTI; ATTORNEY 

GENERAL FOR THE STATE OF 

NEVADA,

Respondents-Appellees.

No. 18-15892

D.C. No.

3:10-cv-00073-

LRH-VPC

OPINION

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted December 2, 2019

San Francisco, California

Filed September 14, 2020

Before: Eugene E. Siler,* Jay S. Bybee, and

Ryan D. Nelson, Circuit Judges.

Opinion by Judge Siler

* The Honorable Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 VON TOBEL V. BENEDETTI

SUMMARY**

Habeas Corpus

The panel withdrew a memorandum disposition filed 

January 9, 2020; filed a published opinion affirming the 

district court’s denial of Nevada state prisoner Gerald Von 

Tobel’s habeas corpus petition; denied a petition for 

rehearing; and denied on behalf of the court a petition for 

rehearing en banc, in a case in which a juror, during the trial, 

had a conversation with a police-officer neighbor who told 

the juror something to the effect that a defendant in a 

criminal trial would not be there if he had not done 

something wrong.

Von Tobel contended that the test used by the Nevada 

Supreme Court to evaluate juror misconduct in his case was 

“contrary to, or involved an unreasonable application of, 

clearly established Federal law,” 28 U.S.C. § 2254(d)(1), 

because it placed a more onerous burden on him to prove 

prejudice than under the applicable Supreme Court 

precedent and because it did not presume that the contact 

was prejudicial. 

The panel observed that there was no decision of the 

United States Supreme Court that precludes the Nevada 

Supreme Court from requiring the petitioner to show a 

reasonable probability or likelihood that the contact affected 

the verdict. Applying AEDPA’s highly deferential standard, 

the panel therefore concluded that the Nevada Supreme 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
VON TOBEL V. BENEDETTI 3

Court’s test to evaluate juror misconduct—and the 

application of it in this case—is not contrary to, nor does it 

involve an unreasonable application of, clearly established 

Federal law.

COUNSEL

Kimberly Sandberg (argued), Jonathan Kirshbaum, and

Ryan Norwood, Assistant Federal Public Defenders; Rene 

L. Valladares, Federal Public Defender; Office of the 

Federal Public Defender, Las Vegas, Nevada; for PetitionerAppellant.

Natasha M. Gebrael (argued) and Ashley A. Balducci,

Deputy Attorneys General; Aaron D. Ford, Attorney 

General, Office of the Attorney General, Las Vegas, 

Nevada; for Respondents-Appellees.

ORDER

The memorandum disposition filed January 9, 2020 is 

withdrawn. A published opinion authored by Judge Siler is

filed concurrently with this order.

The panel judges have voted to deny appellant’s petition 

for rehearing.

Judge R. Nelson voted to deny the petition for rehearing 

en banc, and Judges Siler and Bybee recommended denying 

the petition for rehearing en banc.
4 VON TOBEL V. BENEDETTI

The full court has been advised of the petition for 

rehearing en banc and no judge has requested a vote on 

whether to rehear the matter en banc. Fed. R. App. P. 35.

Appellant’s petition for rehearing and petition for 

rehearing en banc, filed March 24, 2020, is DENIED.

OPINION

SILER, Circuit Judge:

Gerald Von Tobel, a Nevada state prisoner, appeals from 

the district court’s denial of his petition for a writ of habeas 

corpus. During Von Tobel’s trial, one of the jurors had a 

conversation with a neighbor who is a police officer about 

difficulties the juror was having in the case. Sometime 

during the conversation, the police officer neighbor told the 

juror something to the effect that a defendant in a criminal 

trial would not be there if he had not done something wrong.

In evaluating this contact on direct appeal, the Nevada 

Supreme Court applied its own test for evaluating juror 

misconduct and concluded that Von Tobel had not met his 

burden to show prejudice. In his petition for a writ of habeas 

corpus, Von Tobel contends that the test used by the Nevada 

Supreme Court to evaluate juror misconduct in his case was 

“contrary to, or involved an unreasonable application of, 

clearly established Federal law,” 28 U.S.C. § 2254(d)(1), 

because it placed a more onerous burden on him to prove 

prejudice than under the applicable Supreme Court 

precedent and because it did not presume that the contact 

was prejudicial. We hold that the Nevada Supreme Court’s 

test to evaluate juror misconduct—and the application of it 

in Von Tobel’s case—is not contrary to, nor does it involve
VON TOBEL V. BENEDETTI 5

an unreasonable application of, clearly established Federal 

law and we affirm the district court’s denial of Von Tobel’s 

habeas petition.

I.

Von Tobel was convicted in 2005 of numerous counts of 

physical and sexual abuse of his girlfriend’s three children. 

At trial, the only direct evidence of abuse was the testimony 

of the children. Their testimony included some 

inconsistencies, such as not remembering incidents of abuse 

that they had previously disclosed. Von Tobel testified and 

denied the allegations.

The jury deliberated across four days for a total of around 

twenty hours. During deliberations, the jury sent several 

notes to the judge indicating they were having trouble 

reaching a verdict on some of the charges. Each time the 

judge instructed them to continue deliberating. The jury 

eventually reached a unanimous verdict on all counts, 

finding Von Tobel guilty on twenty-five counts (one of 

which was not guilty but guilty of a lesser offense) and not 

guilty on one count.1

After the jury was released, the judge invited them to 

“stay and chat” with the attorneys to “discuss the case.” 

When asked what factors in the case had an impact on the 

verdict, Juror No. 200 stated: “It’s like my neighbor, who is 

a cop, always says, ‘[h]e wouldn’t be here if he didn’t do 

something.’” This comment resulted in a motion for a new 

trial and an evidentiary hearing.

1 In addition, one count had been previously withdrawn by the State.
6 VON TOBEL V. BENEDETTI

At the evidentiary hearing, Juror No. 200 was called as a 

witness. He clarified that the conversation with his neighbor 

occurred during trial, prior to deliberations. Juror No. 200 

said that he barely knew his neighbor and that he believed 

that his neighbor worked for a different police department 

than the one involved in the case. Juror No. 200 explained 

that the conversation with his neighbor occurred when he 

went out to the community mailbox in his neighborhood and 

ran into his neighbor. He told the neighbor “[y]ou know, I 

don’t know how you put up with this stuff that you have to 

do with.” The neighbor replied “oh[] [i]t’s just [what] you 

have to do.” Juror No. 200 then said that he was on jury duty 

and having a tough time because “stuff that’s going on here 

that just makes me sick. Matter of fact, I have a hard time 

sleepin’ with it as a result of it.” During the conversation, 

the neighbor told Juror No. 200 about an unrelated case in a 

different jurisdiction where “a kid got killed in a gang 

something or other” and some people had already “plead out 

[and were] serving time while others were waiting to go to 

Court.” Sometime during the conversation—Juror No. 200 

does not remember when—the neighbor said something to 

the effect of “if they’re here, they’re here for a reason” or 

that “[h]e wouldn’t be here if he didn’t do something.”

During the evidentiary hearing, Juror No. 200 stated that 

he: (1) understood the presumption of innocence and that it 

applied to Von Tobel; (2) did not make up his mind about 

Von Tobel’s guilt before deliberations; and (3) changed his 

mind several times about Von Tobel’s guilt during 

deliberations. Regarding the conversation with his neighbor, 

Juror No. 200 said that: (1) it did not affect his ability to keep 

an open mind while hearing the evidence; (2) he did not 

conclude from his neighbor’s comment that Von Tobel must 

have done something otherwise he would not be in court; 
VON TOBEL V. BENEDETTI 7

and (3) the conversation had no influence on his thought 

process, on how he viewed the evidence, or on the verdict.

The court found that Juror No. 200 violated the court’s 

order not to discuss the case. But the court denied Von 

Tobel’s motion for a new trial, explaining that Juror No. 200 

“never swayed in his belief that he was obligated to listen to 

the facts and the evidence in this case, and render a verdict 

only after he listened to all of the witnesses, saw all of the 

evidence, and began deliberation with his fellow jurors.” 

The court added that Juror No. 200 “never wa[i]vered with 

respect to the presumption of innocence,” did not have a 

preconceived idea about Von Tobel’s guilt, and that the 

conversation with his neighbor “did not affect his belief or 

reliance upon the presumption of innocence.” Finally, the 

court concluded that there was no evidence that Juror No. 

200 discussed the nature of the case with his neighbor, or 

that the conversation had any influence on the determination 

of guilt or on the presumption of innocence.

On appeal, the Nevada Supreme Court conducted a de 

novo review of the trial court’s decision. The test for 

allegations of juror misconduct in Nevada comes from 

Meyer v. State, 80 P.3d 447 (Nev. 2003). Under it, a motion 

for a new trial based on allegations of juror misconduct has 

the burden to show that (1) the misconduct occurred and 

(2) the misconduct prejudiced the defendant. Id. at 455. 

When the misconduct is egregious, the Nevada Supreme 

Court applies a conclusive presumption of prejudice without 

any showing of prejudice. Id. When the misconduct is not 

egregious, the defendant must prove prejudice by showing 

that, in reviewing the trial as a whole, there was “a 

reasonable probability or likelihood that the juror 

misconduct affected the verdict.” Id. at 456.
8 VON TOBEL V. BENEDETTI

The Nevada Supreme Court found that Juror No. 200 

committed misconduct. Von Tobel v. State, No. 45684, at *3 

(Nev. Feb. 29, 2008). But it determined that this was not an 

egregious case—triggering the conclusive presumption of 

prejudice—because Juror No. 200 did not discuss the facts 

of the case with his neighbor. Id. As a non-egregious case, 

Von Tobel had the burden to show prejudice. Id. The 

Nevada Supreme Court concluded that Von Tobel failed to 

show a reasonable probability that exposure to the 

neighbor’s opinion affected the verdict because: (1) the 

conversation did not include any details of the case; (2) jury 

instructions occurred after the conversation; and (3) the jury 

was instructed on the presumption of innocence and jurors 

are presumed to have followed the judge’s instructions. Id.

at 4–5.

Von Tobel filed a habeas petition in the district court 

arguing that the Nevada Supreme Court’s test from Meyer—

both itself and as applied here—was contrary to clearly 

established federal law. Specifically, we have held that a test 

derived from two Supreme Court cases from 1892 and 1954 

constitutes clearly established federal law for evaluating a 

juror’s contact with an outside party. Godoy v. Spearman,

861 F.3d 956, 964 (9th Cir. 2017) (en banc); see Remmer v. 

United States, 347 U.S. 227 (1954); Mattox v. United States, 

146 U.S. 140 (1892). Thus, Von Tobel contended that the 

Meyer test itself and as applied to him was contrary to, or an 

unreasonable application of, Mattox and Remmer because it 

placed a more onerous burden on him to prove prejudice and 

it did not presume that Juror No. 200’s contact with his 

neighbor was prejudicial.

The district court reviewed the burden on the defendant 

under Meyer and under Mattox/Remmer and found them 

similar enough that Meyer was not clearly contrary to 
VON TOBEL V. BENEDETTI 9

Mattox/Remmer. The district court also found that no 

contrary decision of the Supreme Court prevented the 

Nevada Supreme Court from concluding that Juror No. 

200’s contact with his neighbor was non-egregious—thus 

not triggering a presumption of prejudice. Finally, the 

district court noted that Godoy approvingly cited Tarango v. 

McDaniel, 837 F.3d 936 (9th Cir. 2016)—and a footnote in 

Tarango, 837 F.3d at 950 n.13, can be read as suggesting 

that that the Meyer test is compatible with clearly established 

federal law—undercutting the contention that at the time of 

the Nevada Supreme Court’s decision in 2008, Meyer was 

clearly incompatible with Mattox/Remmer.

II.

A district court’s denial of a petition for habeas corpus 

under 28 U.S.C. § 2254 is reviewed de novo. Dows v. Wood, 

211 F.3d 480, 484 (9th Cir. 2000). A federal court cannot 

grant a petition for habeas corpus to a prisoner in state 

custody for a claim that was adjudicated on the merits in state 

court unless the adjudication of the claim (1) “resulted in a 

decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as 

determined by the Supreme Court of the United States” or 

(2) “resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented 

in the State court proceeding.” 28 U.S.C. § 2254(d). A state 

court decision is “contrary to” Supreme Court precedent “if 

the state court arrives at a conclusion opposite to that reached 

by [the Supreme] Court on a question of law or if the state 

court decides a case differently than [the Supreme] Court has 

on a set of materially indistinguishable facts.” Williams v. 

Taylor, 529 U.S. 362, 412–13 (2000). “An unreasonable 

application of clearly established federal law must be 

‘objectively unreasonable, not merely wrong; even clear 
10 VON TOBEL V. BENEDETTI

error will not suffice.’” Rowland v. Chappell, 876 F.3d 

1174, 1181 (9th Cir. 2017) (quoting White v. Woodall, 

572 U.S. 415, 419 (2014)). Rather, “a state prisoner must 

show that the state court’s ruling on the claim being 

presented in federal court was so lacking in justification that 

there was an error well understood and comprehended in 

existing law beyond any possibility for fairminded 

disagreement.” Id. (quoting Woodall, 572 U.S. at 419–20). 

“If Supreme Court precedent does not provide a ‘clear 

answer to the question presented,’ the state court’s decision 

cannot be contrary to, or have unreasonably applied, clearly 

established federal law.” Turner v. McEwen, 819 F.3d 1171, 

1176 (9th Cir. 2016) (quoting Wright v. Van Patten, 552 U.S. 

120, 126 (2008) (per curiam)).

We review “the last reasoned state court decision to 

address the claim[s].” White v. Ryan, 895 F.3d 641, 665 (9th 

Cir. 2018). Here, the last such decision is the Nevada 

Supreme Court’s denial of Von Tobel’s direct appeal.

A.

After the Nevada Supreme Court’s decision in this case, 

this court recognized that a two-part test derived from two 

Supreme Court cases—Remmer and Mattox—constitutes 

clearly established federal law for analyzing improper 

contacts between jurors and outside parties. See Godoy, 

861 F.3d at 964. Von Tobel contends that the test from 

Meyer, used by the Nevada Supreme Court to evaluate the 

contact between Juror No. 200 and his neighbor is contrary 

to, or an unreasonable application of, the Mattox/Remmer

test. It is not.

The Nevada Supreme Court did not use the 

Mattox/Remmer framework to analyze the contact between 

Juror No. 200 and his neighbor. Neither case is cited in its 
VON TOBEL V. BENEDETTI 11

opinion, but this is not required. See Early v. Packer, 

537 U.S. 3, 8 (2002) (per curiam). Instead, it applied its own 

test for analyzing juror misconduct, such as a juror’s having 

contact with a third-party, which it developed in Meyer.

2 

Under Meyer, the defendant must show that the misconduct 

(1) occurred and (2) prejudiced him. 80 P.3d at 455. To 

show prejudice, the defendant must show that “there is a 

reasonable probability or likelihood that the juror 

misconduct affected the verdict.” Id. In egregious cases, 

such as jury tampering, prejudice is conclusively presumed 

without the defendant’s having to show prejudice; in nonegregious cases, the defendant has the burden to show 

prejudice. Id. at 455–56.

Because of the obvious structural differences between 

these two tests, we begin by comparing them before 

considering the defendant’s burden under each. The first 

step of the Meyer test—that the misconduct occurred—is not 

explicitly part of the Mattox/Remmer framework. Instead it 

is an implicit “step zero” in the analysis because 

Mattox/Remmer step one presupposes that there was a 

contact, since it asks “whether the contact was ‘possibly 

prejudicial.’” See Godoy, 861 F.3d at 962 (quoting Mattox, 

146 U.S. at 150). Thus, Meyer step one is consistent with 

the Mattox/Remmer framework.

The second step of Meyer—that the misconduct 

prejudiced the defendant—differs depending on whether the 

extrinsic influence on the juror was egregious or not. If 

egregious, prejudice is conclusively presumed and the 

defendant does not have to make any showing of prejudice. 

Meyer, 80 P.3d at 455. If not egregious, the burden is on the 

2 Meyer cites to Remmer but not Mattox. See Meyer, 80 P.3d at 455 

n.23, n.26.
12 VON TOBEL V. BENEDETTI

defendant to show “a reasonable probability or likelihood 

that the juror misconduct affected the verdict.” Id. Meyer

step two, then, is analogous to Mattox/Remmer step one as 

they both ask whether there was prejudice. Meyer’s placing 

the burden on the defendant to show prejudice is consistent 

with Mattox/Remmer. See Remmer, 347 U.S. at 228–29 (not 

specifically addressing who has the burden but stating that 

the defendant submitted evidence in support of his motion); 

Mattox, 146 U.S. at 142 (same); see also Godoy, 861 F.3d 

at 967 (stating that the defendant must present evidence of a 

prejudicial contact at step one).

Von Tobel contends that Meyer is contrary to 

Mattox/Remmer because it placed a more onerous burden on 

him to show prejudice. Von Tobel misreads Meyer. Meyer

only requires the petitioner to show “a reasonable probability 

or likelihood that the juror misconduct affected the verdict” 

in order to prevail on a motion for a new trial. 80 P.3d 

at 455. The Nevada Supreme Court had defined a 

reasonable probability as a “probability sufficient to 

undermine confidence in the outcome.” Lobato v. State, 

96 P.3d 765, 772 (Nev. 2004) (quoting Strickland v. 

Washington, 466 U.S. 668, 694 (1984)). In Godoy, we 

described the petitioner’s burden under Mattox/Remmer as 

requiring the petitioner to present “evidence of an external 

contact that has a tendency to be injurious to the defendant” 

or “evidence of a contact sufficiently improper as to raise a 

credible risk of affecting the outcome of the case.” 861 F.3d 

at 967 (internal quotation marks and citations omitted). “[A] 

probability sufficient to undermine confidence in the 

outcome,” Lobato, 96 P.3d at 772, is similar to “rais[ing] a 

credible risk of affecting the outcome,” Godoy, 861 F.3d at 

967. And, most importantly, neither Mattox nor Remmer

precisely delineates the petitioner’s burden. So, even if the 

burdens under Meyer and Godoy are different, there was no 
VON TOBEL V. BENEDETTI 13

decision of the Supreme Court that precludes the Nevada 

Supreme Court from requiring the petitioner to show a 

reasonable probability or likelihood that the contact affected 

the verdict. See Wright v. Van Patten, 552 U.S. 120, 126 

(2008) (per curiam) (stating that Supreme Court cases must 

give a “clear answer to the question presented” to be clearly 

established federal law).

1.

We emphasize that what we have said beyond what the 

Supreme Court has held to “refine or sharpen” a defendant’s 

burden is not clearly established Federal law. Lopez v. 

Smith, 574 U.S. 1, 7 (2014) (per curiam) (quoting Marshall 

v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam)). Our 

various formulations of Mattox/Remmer step one to require 

that the contact “raise[] a risk of,” Caliendo v. Warden of 

Cal. Men’s Colony, 365 F.3d 691, 697 (9th Cir. 2004), “raise 

a credible risk of,” Tarango, 837 F.3d at 947, or be 

“sufficiently improper as to raise a credible risk of,” Godoy, 

861 F.3d at 967, “influencing the verdict” or “affecting the 

outcome of the case,” Godoy, 861 F.3d at 967, do not appear 

in Mattox/Remmer or any Supreme Court precedent and are 

thus not clearly established Federal law. See Parker v. 

Matthews, 567 U.S. 37, 48–49 (2012) (per curiam). As a 

result, Von Tobel cannot invoke our more precise 

formulations of the defendant’s burden to claim that the 

Nevada Supreme Court’s formulation is more onerous than 

our formulation, and thus contrary to Mattox/Remmer. See 

id.; Smith, 574 U.S. at 6–7.

Mattox does not make clear how much of a “tendency. . .

[to be] injurious to the defendant” is required; that is, how 

certain or likely prejudice has to be for the defendant to meet 

his burden. 146 U.S. at 150. As a result, a defendant’s 

burden under Meyer falls within the range allowed by 
14 VON TOBEL V. BENEDETTI

Supreme Court precedent. There is no clearly established 

Supreme Court precedent which holds that a defendant’s 

burden to show that a contact was “possibly prejudicial” is 

less onerous than “a reasonable probability or likelihood that 

the juror misconduct affected the verdict,” Meyer, 80 P.3d at 

455, or “a probability sufficient to undermine confidence in 

the outcome,” Lobato, 96 P.3d at 772 (quoting Strickland, 

466 U.S. at 694).

Our cases further articulating the defendant’s burden 

confirm this conclusion. We believe our explanations of the 

defendant’s burden under Mattox/Remmer are consistent 

with, and faithful interpretations of, Supreme Court 

precedent. In explaining the defendant’s burden, we have 

repeatedly recognized the contribution that Smith v. Phillips, 

455 U.S. 209 (1982), has made to the Mattox/Remmer

framework at step one.3

 See Caliendo, 365 F.3d at 696; see 

also Clark v. Chappell, 936 F.3d 944, 970 (9th Cir. 2019); 

Godoy, 861 F.3d at 967; Tarango, 837 F.3d at 947. Our 

cases addressing the defendant’s burden largely focus on 

incorporating Phillips into step one of the framework. See

Clark, 936 F.3d at 944 (citing Phillips before concluding that 

a defendant is required to show a “sufficiently improper” 

contact that “gives rise to a ‘credible risk of affecting the 

outcome of the case’” (quoting Godoy, 861 F.3d at 967)); 

Godoy, 861 F.3d at 967 (reviewing Phillips before 

formulating the defendant’s burden as requiring the 

3 That Phillips affected the Mattox/Remmer framework is consistent 

with our statement in Godoy that “[Phillips] left Mattox and Remmer

intact.” Godoy, 861 F.3d at 964 n.3. In that footnote, we were 

considering whether the Mattox/Remmer two-step framework continued 

to exist post-Phillips. Id. We held that the framework still existed. Id. 

We certainly did not hold that Phillips had no effect on the framework 

in the footnote, as we also relied on Phillips to clarify the defendant’s 

step-one burden. Id. at 967.
VON TOBEL V. BENEDETTI 15

defendant to “present evidence of a contact sufficiently 

improper as to raise a credible risk of affecting the outcome 

of the case”); Tarango, 837 F.3d at 936 (noting Phillips

before concluding that “‘prosaic kinds of jury misconduct’ 

do not trigger a presumption of prejudice” (quoting Dutkel, 

192 F.3d at 894–95)); Caliendo, 365 F.3d at 696–97 

(reviewing Phillips and another case as support for the 

conclusion that a defendant must show that the contact 

“raises a risk of influencing the verdict”). After providing 

several variations of the defendant’s burden, in Godoy we 

settled on requiring a defendant to show that the contact was 

“sufficiently improper as to raise a credible risk of affecting 

the outcome of the case,” or of “influencing the verdict.” 

Godoy, 861 F.3d at 967, 970. Our standard thus falls 

between requiring more than a theoretical possibility of 

prejudice and less than actual prejudice.

The burden under Meyer is not contrary to 

Mattox/Remmer. Indeed, it is nearly identical to our 

formulation of Mattox/Remmer. Both tests look at the effect 

of the contact on the verdict or outcome. Compare Meyer, 

80 P.3d at 455 (whether the contact “affected the verdict”); 

and Lobato, 96 P.3d at 772 (whether the contact 

“undermine[d] confidence in the outcome”); with Godoy, 

861 F.3d at 967 (whether the contact has a risk of 

“influencing the verdict” or “affecting the outcome of the 

case” (quoting Tarango, 837 F.3d at 947)). And both tests 

require a similar level of certainty that there was prejudice. 

Compare Meyer, 80 P.3d at 455 (“reasonable probability or 

likelihood”) and Lobato, 96 P.3d at 772 (“a probability 

sufficient to”); with Godoy, 861 F.3d at 967 (“sufficiently 

improper as to raise a credible risk”).
16 VON TOBEL V. BENEDETTI

2.

Von Tobel’s reliance on the relationship between the 

defendant’s burden under Meyer and the test from Strickland

is misplaced. Meyer requires a defendant to show “a 

reasonable probability or likelihood that the juror 

misconduct affected the verdict,” Meyer, 80 P.3d at 455, and 

the Nevada Supreme Court’s definition of a “reasonable 

probability” comes from Strickland. Because the Supreme 

Court has said that “[s]urmounting Strickland ’s high bar is 

never an easy task,” Padilla, 559 U.S. at 371, Von Tobel 

argues that his burden under Meyer must also be a “high 

bar,” and thus is contrary to the “low threshold” under 

Mattox/Remmer. To begin with, although we have said that 

the defendant’s burden under Mattox/Remmer is a “low 

threshold,” that description is our own and not attributable 

to the Supreme Court. Caliendo, 365 F.3d at 697 (stating 

that “the Mattox rule applies when an unauthorized

communication with a juror crosses a low threshold to create 

the potential for prejudice” without citing to any Supreme 

Court precedent for that description). But even if it were, we 

cannot say that the burden under Meyer is inconsistent with 

this pronouncement.

The principal problem with Von Tobel’s Strickland

argument is that he conflates the Strickland test as a whole 

with a part of it. To establish ineffective assistance of 

counsel under Strickland, “a defendant must show both 

deficient performance by counsel and prejudice.” Knowles 

v. Mirzayance, 556 U.S. 111, 122 (2009). On the deficient 

performance prong, a defendant must show that his or her 

“counsel’s representation fell below an objective standard of 

reasonableness.” Strickland, 466 U.S. at 688. On the 

prejudice prong, a defendant must show “a reasonable 

probability that, but for counsel’s unprofessional errors, the 
VON TOBEL V. BENEDETTI 17

result of the proceeding would have been different.” Id. at 

694. “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id. The Nevada 

Supreme Court’s definition of “reasonable probability” is 

the same and that definition comes from Strickland. See 

Lobato, 96 P.3d at 772. But it is not the “reasonable 

probability” standard in the prejudice prong that makes 

“[s]urmounting Strickland’s high bar [] never an easy task.” 

Padilla, 559 U.S. at 371. Rather, the highly deferential 

review courts are to give counsel’s performance and the 

likelihood that attorney error would be harmless in a 

particular case make it difficult to surmount. See id. at 371–

72 (citing these parts of the Strickland test as support for the 

statement that Strickland is a high bar). Thus, on the 

prejudice prong, it is not the requirement that the defendant 

show a “reasonable probability” that makes it hard to meet; 

instead, it is what the defendant must show a “reasonable 

probability” of—“that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been 

different,” Strickland, 466 U.S. at 694. Thus, it is the other 

parts of the test and the test as a whole, not the reasonable 

probability standard, which makes Strickland such a high 

standard. As a result, that the definition of reasonable 

probability originates from Strickland does not lead to the 

conclusion that the defendant’s burden is not a low threshold 

or that the defendant’s burden must be contrary to 

Mattox/Remmer.

Therefore, under AEDPA’s “highly deferential 

standard,” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per 

curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 

(1997)), we cannot say that requiring the petitioner to show 

“a reasonable probability or likelihood that [the contact] 

affected the verdict” is contrary to, or involves an 
18 VON TOBEL V. BENEDETTI

unreasonable application of, Supreme Court precedent, Van 

Patten, 442 U.S. at 126.

B.

Even considering Von Tobel’s argument without his 

having conflated the two presumptions of prejudice—that 

the Nevada Supreme Court unreasonably applied 

Mattox/Remmer in his case because it did not find that he 

had met his step one burden to show possible prejudice—he 

cannot meet his burden under AEDPA to show that 

Mattox/Remmer were unreasonably applied. See Rowland, 

876 F.3d at 1181 (requiring a state court prisoner to show 

that “the state court’s ruling on the claim being presented in 

federal court was so lacking in justification that there was an 

error well understood and comprehended in existing law 

beyond any possibility for fairminded disagreement” 

(quoting Woodall, 572 U.S. at 419–20)). We have provided 

that, to determine whether the defendant has met his or her 

burden to show possible prejudice, courts can consider a 

variety of factors, including: (1) whether the communication 

concerned the case; (2) the length and nature of the contact; 

(3) the identity and role at trial of the parties involved; 

(4) evidence of the actual impact on the juror; and (5) the 

possibility of eliminating prejudice through limiting 

instructions. Caliendo, 365 F.3d 697–98; see also United 

States v. Angulo, 4 F.3d 843, 847 (9th Cir. 1993) (stating that 

a court can consider “the content of the allegations, the 

seriousness of the alleged misconduct or bias, and the 

credibility of the source” in determining if the defendant has 

met his or her burden).

C.

Von Tobel requests that we expand the certificate of 

appealability to include his claims of actual innocence and 
VON TOBEL V. BENEDETTI 19

ineffective assistance of counsel. See 28 U.S.C. 

§ 2253(c)(1); 9th Cir. R. 22-1(e). We decline to do so 

because he has not made a “substantial showing of the denial 

of a constitutional right.” 28 U.S.C. § 2253(c)(2).

III.

For these reasons, the district court correctly denied Von 

Tobel’s petition for a writ of habeas corpus under 28 U.S.C. 

§ 2254.

AFFIRMED.