NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN LEE NEWBERG,

Petitioner

- Appell ant ,

v. JACK PALMER; ATTORNEY GENERAL FOR THE STATE OF NEVADA ,

Respondent s - Appell ee s
. No. 1 6

- 17109
D.C. No

. 3: 07

- cv - 0 0 189

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Robert Clive Jones , Senior District Judge, Presiding Argued and Submitted February 15, 2018

San Francisco, CA
Before: BEA and N.R. SMITH, Circuit Judges, and NYE , ** District Judge.
Petitioner

- Appellant Steven Lee Newberg (“Newberg”) appeals from the district court’s denial of habeas relief on his claim that juror bias deprived him of his rights under the Sixth and Fourteenth Amendments. This court reviews de

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable David C. Nye , United States District Judge for the District of Idaho , sitting by designation. 

# FILED

MAR 14 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 16

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novo “allegations of juror misconduct and prejudicial impact in habeas cases.” Caliendo v. Warden of California Men’s Colony , 365 F.3d 691, 694 (9th Cir. 2004). However , this court presumes state court findings of fact to be correct
unless th e petitioner rebuts them with clear and convincing evidence. Id. at 695 (citing 28 U.S.C. § 2254(e)(1)). We have jurisdiction under 28 U.S.C. § 2253
and we affirm. Newberg’s habeas petition is subject to the provisions of the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) , 28 U.S.C. § 2254(d)

. Under AEDPA, federal courts will not grant habeas relief with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim [in state court] (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 unreasona ble determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). A state court’s decision is “contrary to” “clearly established federal law” if the state court “‘applies a rule that contradicts the gove rning law set forth in Supreme Court cases’ or . . . ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from our precedent.’” Caliendo , 365 F.3d at 695 (quo ting Early v. Packer , 537 U.S. 3, 8 (2002))

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“[W] hen faced with allegations of improper contact between a juror and an outside party, courts apply a two

- step framework. ” Godoy v. Spearman , 861 F.3d 956, 959 (9th Cir. 2017) . “ At step one, the cour t asks w hether the contact was ‘possibly prejudicial,’ meaning it had a ‘tendency’ to be ‘ injurious to the
defendant. ’” Id. (quoting Mattox v. United States , 146 U.S. 140, 150 (1892))

. If

so, the court “ p roceeds to step two, where the ‘ burden rests heavil y upon the [state] to establish’ the contact was, in fact, ‘harmless.’” Id. (quoting Remmer v. United
States , 347 U.S. 227, 229 (1954)). Newberg argues that the Nevada Supreme
Court ’s 1 decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United
States” because it denied Newberg’ s claim at step one

— that is, without deem ing
the juror contact presum

ptively prejudicial and proceeding to step two to shift the burden to the government to establish harmlessness.
T he United States Supreme Court has observed that “it is virtually impossible to shield jurors from every contact or influence that might theore tically affect their vote.” Smith v. Phillips, 455 U.S. 209, 217 (1982). “Given this reality, if an unauthorized communication with a juror is de minimis, the defendant must
show that the communication could have influenced the verdict before the burden

1 “When reviewing a state court’s determination under AEDPA, we look to the last reasoned decision that finally resolves the claim at issue.” Godoy , 861 F.3d at 962 (quot ation marks and citation omitted)

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of proof shifts to the prosecution.” Caliendo , 365 F.3d at 696; see also United States v. Olano , 507 U.S. 725, 740 (1993) (declining to “presume prejudice” in “analyz[ing] outside intrusions upon the jury for prejudicial impact”); Godoy , 861 F.3d at 967 ( citing Caliendo and noting that “[t]he contact must ‘ raise a credible risk of influencing the verdict’ before it trigge rs the presumption of prejudice”). Therefore, step one of the two

- step framework described in Godoy requires state
court s to determine whether the alleged external contact was possibly prejudicial
before proceeding to shift the burden to the government

. To that end , this court has identified five factors courts should consider “in determining whether the communication rais ed a risk of influencing the verdict”: (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 actual impact on the juror; (5) the possibility o f eliminating prejudice through a limiting instruction. Caliendo , 365 F.3d at 697

– 98. Here, t he facts recited by the Nevada Supreme Court showed that the juror in question saw approximately 2

– 3 seconds of a television news story, without audio, which inc luded a picture of the

courtroom where Newberg’s trial was taking place and the words “serial rapist.” The juror stated that she did not associate this clip with Newberg’s trial. The
external contact was accidental and brief. There wa s no suggestion the government played any role in producing the story on the television. Furthermore,5 16

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t he external material was public; it was not directed to or intended for the juror personally. Newberg does not claim that the juror had any special interest in or
sensiti vity to the content of the external material

. The juror promptly reported the incident to the court, and the court immediately investigated the matter and
reminded the juror of her duty of impartiality. Finally, in answer to the court’s question whether what she saw would affect her judgment of the case being tried, the juror reported that she would not look beyond “the facts in this particular case.” Reasonable minds might differ as to the prejudicial impact of the contact alleged here. However, o n the facts presented to the Nevada Supreme Court , the
Caliendo factors permit a reasonable court to find that the contact was de minimis

. Applying AEDPA’s deferential standard, we cannot say that the Nevada Supreme
Court ’ s ruling was “contrary to, or invol ved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States” or “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
AFFIRME D.