NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN LEE NEWBERG,

Petitioner-Appellant, 

 v. 

JACK PALMER; ATTORNEY GENERAL 

FOR THE STATE OF NEVADA, 

Respondents-Appellees.

No. 16-17109

D.C. No. 3:07-cv-00189

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, CLERK

U.S. COURT OF APPEALS
2 16-17109

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 the 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 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’s decision is “contrary to” “clearly established 

federal law” if the state court “‘applies a rule that contradicts the governing 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 (quoting 

Early v. Packer, 537 U.S. 3, 8 (2002)).
3 16-17109

“[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 court asks whether 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 “proceeds to step two, where the ‘burden rests heavily 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’s1 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 deeming

the juror contact presumptively prejudicial and proceeding to step two to shift the 

burden to the government to establish harmlessness.

The United States Supreme Court has observed that “it is virtually 

impossible to shield jurors from every contact or influence that might theoretically 

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

(quotation marks and citation omitted).
4 16-17109

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 triggers the presumption of prejudice”). 

Therefore, step one of the two-step framework described in Godoy requires state 

courts 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 raised 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 of eliminating prejudice through a 

limiting instruction. Caliendo, 365 F.3d at 697–98. Here, the 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 included 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 was no suggestion the

government played any role in producing the story on the television. Furthermore, 
5 16-17109

the 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 

sensitivity 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, on 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 involved 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.”

AFFIRMED.