PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BIGLER JOBE STOUFFER, II, Petitioner - Appellant,

v. KEVIN DUCKWORTH, Interim Warden, Oklahoma State Penitentiary, * Respondent - Appellee. No. 14-6211

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:07-CV-01312-C)

John T. Carlson, Assistant Federal Public Defender, Office of the Federal Public Defender for the Districts of Colorado an d Wyoming, Denver, Colorado (Virginia L. Grady, Federal Public Defender, Office of the Federal Public Defender for the Districts of Colorado and Wyoming, Denver, Colorado, and Mark H. Barrett, Law Offices of Mark H. Barrett, Norman, Oklaho ma, with him on the brief), appearing for Appellant. Jennifer J. Dickson, Assistant Attorney General (E. Scott Pru itt, Attorney General, with her on the brief), Office of th e Attorney General for the State of Oklahoma, Oklahoma City, Oklahoma, appearing for Appellee.

Before LUCERO , O’BRIEN , and MATHESON , Circuit Judges.

* Pursuant to Fed. R. A pp. P. 43(c)(2), Kevin Duckwo rth replaced Jerry Chrisman as Interim Warden of the Ok lahoma State Penitentiary, effective May 9, 2016. FILED United States Court of Appeals Tenth Circuit 

### June 17, 2016 Elisabeth A. Shumaker Clerk of CourtMATHESON , Circuit Judge.
Bigler Jobe Stouffer was convicted in Okla homa state court of first-degree murder and shooting with intent to kill. The jury sentenced him to death for the murder charge. After his direct appeal and state post-co nviction proceedings were unsuccessful, Mr. Stouffer filed a 28 U.S.C. § 22 54 habeas corpus application in federal court, alleging a juror had improperly communicated with her husband about the case during the penalty phase of trial. In Stouffer v. Trammell , 738 F.3d 1205 (10th Cir. 2013), we held the district court erred by failing to conduct an ev identiary hearing on M r. Stouffer’s claim of jury tampering. We therefore remanded to the district court to conduct a hearing and rule on Mr. Stouffer’s claim. Base d on evidence presented at a da y-long evidentiary hearing, the district court determined Mr. Stouffer’s right to an impartial jury had not been violated and denied his § 2254 application. Mr. Stouffer now appeals. Exercising ju risdiction under 28 U. S.C. § 1291, we affirm. I. BACKGROUND On January 24, 1985, Mr. Stouffer visited Doug Ivens’s house to borrow a pistol. Stouffer , 738 F.3d at 1212. He used that pistol to shoot Mr. Ivens three times and Mr. Ivens’s girlfriend, Linda Reaves, twice. Id. Mr. Ivens survived. Id. Ms. Reaves died from her injuries. Id.- 3 - A. Proceedings up to the 2008 Federal Ha beas Application In 1985, an Oklahoma state court jury convicted Mr. Stouffer of first-degree murder and shooting with intent to kill, for which it im posed sentences of death and life imprisonment, respectively. Id. His direct appeal and state post-conviction petition failed. Concluding he had received ineffec tive assistance of coun sel, we granted Mr. Stouffer’s 28 U.S.C. § 2254 habeas corpus application in 1999. Id. At Mr. Stouffer’s 2003 retrial, another jury convicted him of the same two counts. Id. It “ sentenced him to death for Ms. Reaves’s murder and to 100 years of imprisonment for shooting Mr. Ivens.” Id. The Oklahoma Court of Cr iminal Appeals (“OCCA”) affirmed Mr. Stouffer’s convictions and sentences. Id. Mr. Stouffer then filed a motion for post-conviction relief in state court, which the OCCA denied. Id. B. The 2008 Federal Habeas Application On September 8, 2008, Mr. Stouffer filed a § 2254 application for a writ of habeas corpus in the U.S. District Court fo r the Western District of Oklahoma. Id. The district court denied relief on all nine grounds raised in the application but granted a certificate of appealability with respect to f our of them: jury tamperi ng, prosecutorial misconduct, victim impact testimony, and cumulative error. Id. at 1212-13. On appeal, we affirmed except on the jury tampering claim, on which we reversed and remanded to the district court for an evidentiary hearing. Id. C. Basis for Remand to District Court Our decision to remand was based on the fo llowing facts, which we took from the transcript of Mr. Stouffer’s second trial:- 4 - Toward the end of the penalty stag e of Mr. Stouffer’s second trial, defense counsel noticed the husba nd of Juror Stacey Vetter in the courtroom. Mr. Vetter was “laughing, joking, handshaking, and embracing” with a former roommate of shooting vi ctim Doug Ivens. 2nd Stage Tr. Vol. IV at 605. The roommate was sitting w ith Mr. Ivens’s fam ily. According to the prosecutor, the roomma te knew that Mr. Vetter’s wife was a juror. Defense counsel approached Mr. Vetter and asked him about his relationship with Mr. Ivens’s family an d friends. Mr. Vetter responded that he had met them about thirty minutes earlier. As soon as defense counsel turned away, Mr. Vetter “disappe ared out of the courtroom,” id. at 607, and an assistant attorney general watche d him “scoot[ ] to the elevator,” id. at 615. When proceedings resumed, defens e counsel informed the court of Mr. Vetter’s presence and activity in the courtroom and asked to question the Vetters as to whether they ha d communicated about the case. The prosecutor conceded it was appropria te to question Mr. Vetter and the roommate, and the trial court agreed to allow it. The attorneys discovered, however, that both men had left th e building immediately after defense counsel had spoken with Mr. Vetter. Defe nse counsel then suggested taking testimony from another individual who had observed Mr. Vetter in the courtroom—Deputy Boles, the sheri ff’s deputy responsible for escorting Mr. Stouffer during the trial. Deputy Boles testified in camera a nd under oath that he had been present throughout the trial and ha d observed rep eated non-verbal communication between Juror Vetter an d her husband. The deputy saw Mr. Vetter repeatedly nod and wink at Juror Vetter th roughout the penalty stage testimony and closing argum ents. At one point dur ing the prosecution’s final closing argument, Juror Vette r looked to her husband with “a questioned look in her face.” Id. at 608. Mr. Vetter responded by nodding and rolling his eyes. The deputy attempted to testify that this and other exchanges between the Vetters occurred in respons e to particular statements by the prosecution that Deputy Boles describe d as “good points,” and that Mr. Vetter expressed agreement with the prosecutor. Id. at 609, 612–13. The trial court stopped this testimony, sa ying that it was speculative and thus inadmissible. The prosecuto r interceded, telling the court “I don't have a problem. They have got to make a reco rd here. This [is ab out the] deputy’s perspective. He’s a human being. He ou ght to be able to offer his opinion.” Id. at 613. The court relented and permitted limited testimony from the deputy. Deputy Boles then testified that when Juror Vetter had given her husband the questioned look, it was in response to a “strong point” by the prosecutor. Id. at 613. From the deputy’s perception, the communication- 5 - between the Vetters expressed ag reement with the prosecution and indicated to the deputy that Mr. Stouffer was “screwed.” Id. at 614. In response to this testimony, th e defense asked for a mistrial or alternatively to conduc t “further inquiry,” id. at 615, or to “cross examine” Juror Vetter, id. at 622. The trial court denied the motion for mistrial and failed to respond to the alternative re quests for more inve stigation into the Vetters’ communication. The trial court concluded that the defense had produced nothing more than “a lot of speculation.” Id. at 615. The court seemed to confine its analysis to wh ether Deputy Boles’s testimony proved that Juror Vetter had spok en with her husband about the case outside the courtroom. The court did not say clearly whether the non-verbal communication in the courtroom duri ng proceedings c onstituted improper juror contact. Id. at 1215-16 (brackets in orig inal) (footnotes omitted). We held “ the Vetters’ repeated non-verba l communications—which occurred inside the courtroom, during proceedings, and apparently concerned the attorneys’ closing arguments—were . . . improper.” Id. at 1217. “[T]he timing and context of the Vetters’ non-verbal communications and the depu ty’s specific observations,” we wrote, “strongly indicate they were discussing matters pending before the jury.” Id. We concluded the state trial court’s failu re to conduct a hearing and create an adequate record made it impossible “for us to conclude that Mr. Vetter’s communications with Juror Vetter did not prejudice Mr. Stouffe r” or to determine whether any prejudice that may have resulted from those communications was harmless. Id. at 1217-19. As a result, we held the federal district court “erred in conducting a harmlessness analysis without holding an evid entiary hearing” to “uncover th e facts and circumstances of the contact, including the substance and extent of Juror Vetter’s communication with her husband about the case, whether other jurors were aware of this communication, and- 6 - whether they influen ced her decision or ot her jurors’ decisions about Mr. Stouffer’s sentence.” Id. at 1219. We therefore remanded to the district cour t to conduct an ev identiary hearing. Id. at 1220. D. Proceedings on Remand On September 3, 2014, the district court held a day-long evid entiary hearing to explore the issues we identified in Stouffer . At the begi nning of that hearing, the court announced it read our Stouffer opinion as establishing “the presumption of prejudice” and placing on the State “the burden of showing . . . the existe nce of harmless error.” ROA, Vol. 2 at 20. Stipulations 1. Before the hearing, the parties stipulated that if called, jurors Daniel Dale Andrews, Holly Rea P arker, and David Knight would te stify they were not aware of any improper communications between Juror Vett er and her husband during trial. The district court also admitted into evidence the obi tuaries of two other jurors from Mr. Stouffer’s 2003 retrial. The State’s Witnesses 2. The State presented testimony from all remai ning jurors from the 2003 retrial, as well as Juror Vetter’s husband , George Brian Vetter.

a. Juror Judith Re ann Douglass Judith Reann Douglass, who served as a juror at the 2003 retrial, testified that Juror Vetter pointed out her husband to fellow jurors during trial. As the jurors were- 7 - getting settled in the jury box one day—Ju ror Douglass could not remember exactly which day—Juror Vetter allegedl y looked out into the gallery, smiled, and nodded at her husband, who “looked back and smiled.” ROA, Vol. 2 at 25-26. Although the Vetters did not exchange words, Juror Douglass test ified that Juror Vetter and Mr. Vetter “did head movements” toward one another. Id. at 27. Juror Dougla ss thought Juror Vetter mouthed “I love you” to her husband, but othe r than that, she “did not know exactly what they were saying.” Id. at 28. She said she “assumed” they were communicating about Mr. Stouffer’s case. Id. at 29. On cross-examination, Juro r Douglass testified she saw Mr. Vetter sitting with Mr. Ivens’s family and talking to Mr. Ivens in the courtroom galle ry. She also said she saw Mr. Vetter shake Mr. Ivens’s hand during a break in trial. Juror Douglass admitted on redirect that in 2005 she had pled guilty to falsifying a police report. b. Juror Stacey Vetter Juror Vetter testified that Mr. Vetter attende d trial only on the last day of the guilt stage. While he was in the courtroom, she ha d no communication with him, either verbal or nonverbal, she said. Nor did he share in formation about the case with her at any time during the entire course of trial. At no poin t did she “have anybody else there that [she] knew that was a male that was not a juro r that [she] would be talking to.” Id. at 53. Juror Vetter testified she never received “any outside information from anybody in the gallery.” Id. at 54. The only communication she remembered having with her husband during trial came when she phoned home one ni ght to inform him she would be staying at- 8 - a hotel because the jury had been sequestered. 1 According to Juror Vetter, her vote to impose the death penalty was not based on an y evidence she receiv ed from “an outside party.” Id. at 55. On cross-examination, Ju ror Vetter said she could not remember whether her husband had sat with Mr. Ivens’ s family when he attended tr ial. When presented with a diagram of the state courtroom, however, she confirmed Mr. Vetter had sat in the “approximate spot” of an “X” indicating wher e Mr. Ivens’s family had been located. Id. at 62.

c. George Brian Vetter Mr. Vetter was adamant he attended the tr ial only on the day the jury announced its guilty verdict. He testified he entered the courtroom on his own and stayed for no more than 30 minutes. He said he never co mmunicated about the case with his (now ex-) wife or attempted to influence her decision while she was serving as a juror, though he did wink at her when she entered the courtr oom and took her seat in the jury box. According to Mr. Vetter, the wink, to which his wife re sponded with a smile, was intended only as a greeting and was not designed to influence her vote in the case. While in the courtroom, he said, he did not obse rve any witness testimony or argument by the attorneys.

1 When asked whether she would have any reason to disagree with the state court record if it indicated she received a second ph one call from her husban d during trial, she said she would not.- 9 - Mr. Vetter testified an “elderly lady” in the gallery asked him whether he “was a part of the defense or the family,” to which he responde d his wife was on the jury. Id. at 73. This “elderly lady” introdu ced herself as Mr. Iv ens’s mother. In addition, he said he was approached by “a big ge ntleman” on Mr. Stouffer’s defense team, who asked Mr. Vetter’s name. Id. at 76. After that brief encoun ter, Mr. Vetter left the courthouse because he had to return to work. On cross-examination, Mr. Vetter testifie d he was “not joking with anybody or hugging anybody,” and did not have his arm aro und anybody while he was at the trial. Id. at 86. He said the onl y people whose hands he shook were Mr. Ivens’s mother and Mr. Stouffer’s attorney, Mr. Anderson. d. Other Jurors The State presented testimony from the remai ning members of Mr. Stouffer’s jury. No juror testified to (1) s eeing Juror Vetter communicate with anyone in the courtroom gallery or (2) recalling discussion by Juror Ve tter about extraneous information during deliberations. Nothing in the jurors’ testimony suggests th ey based their decision to impose the death penalty on anything ot her than the evidence at trial. Mr. Stouffer’s Witnesses 3.

a. Deputy Ralph Manuel Boles Deputy Boles testified that during Mr. Stouffer’s trial he would “occasionally look at the gallery.” Id. at 155. He did so because his secu rity training had taught him to keep an eye out for “anything that could go wrong” in cases fe aturing in-custody defendants- 10 - like Mr. Stouffer. Id. Accordingly, he “pic k[ed] [his] seat in the courtroom so that [he] could have a good view of everyt hing, including the gallery.” Id. Deputy Boles said that on “the day of closing arguments,” he witnessed Juror Vetter repeatedly making eye contact with so meone in the gallery with whom she had entered the courtroom that morning. Id. at 156. He could not remember whether the closing arguments were those of the fi rst or second stage of trial. After the prosecutor made a certain point to the jury, “Juror Ve tter look[ed] to the gallery at this unknown male, and then he kind of look[ed] back, and they kind of roll[ed] their eyes at each other.” Id. Deputy Boles believed the eye-rolling expressed Juror Vetter and her companion’s belief th at Mr. Stouffer was “screwed.” Id. at 157. This exchange was the most “obvious” communica tion between Juror Vetter and the man in the gallery, but in total they exchanged glances or nods on “t hree to four occasions.” Id. According to Deputy Boles, it was “clear . . . that they were communicating about the case.” Id. at 160. Based on what he witnessed, it would be “[im]possible . . . for anyone to conclude that the communication betwee n the Vetters was limited to a wink and a smile.” Id. According to Deputy Boles, Juror Vetter and her husband communicated nonverbally during both sides’ closing argu ments. The Vetters “acknowledg[ed] strong points that the defense made as well,” and th eir nods and glances “were not one-sided.” Id. at 167. But the “most prominent communica tion was the one that basically said ‘he’s screwed.’” Id. at 168. More exchanges were pr o-prosecution than pro-defense.- 11 - Deputy Boles testified that after witnessing these exchan ges, he talked with Mr. Stouffer’s attorneys, who aske d him whether he had seen, as they had, Juror Vetter communicating with someone in the gallery. De puty Boles said he later learned, at the trial judge’s in camera conference, that th e man he saw communicating with Juror Vetter was her husband. But even before that, he had suspected the man was Juror Vetter’s “significant other of some kind,” based on thei r interactions with each other and “the[ir] body actions as they c[ a]me in” the courtroom together that morning. Id. at 162. He had no memory of seeing Mr. Vetter on any day other than the da y of closing arguments. On cross-examination, Deputy Boles descri bed the look the Vetters exchanged as “kind of like, duh.” Id. at 163. It was therefore possible, he agreed, that “Ms. Vetter already had her mind made up about whether she thought the [pros ecutor’s] point was a good point or not.” Id. b. JoAnn Grider JoAnn Grider, then a private investigat or working pro bono for Mr. Stouffer’s defense team, attended almost all of the 2003 retrial. During the last week of the guilt phase, she observed Juror Vetter “and a man in the audience making signals, nodding their head to each other.” Id. at 174. Ms. Grider said she did not know who the man was, but she assumed it was Juror Vetter’s husband because the two of them “would go to lunch together.” Id. at 175. According to Ms. Grid er, the man was seated behind the prosecution table, about 15 feet from where Ju ror Vetter was seated. She did not see him interact with any of the people sitting nearby.- 12 - On cross-examination, Ms. Gr ider said she has sent Mr. Stouffer letters in prison. Ms. Grider at first denied ever sending those letters in attorney’s en velopes, which are not monitored by jail staff. But she later admitt ed she had “an agreement” with one of Mr. Stouffer’s attorneys whereby if she had some thing to send to Mr. Stouffer, she would hand it to the attorn ey for mailing in a privileged envelope. Id. at 186.

c. Defense Attorney Gary James Gary James was lead defense counsel at M r. Stouffer’s 2003 retrial. Several times while he was at the lectern, he “caught out of the periphery of [h is] vision that [Juror] Vetter would have turned towards her right . . . towards the audience, no longer looking towards the bench nor the witness.” Id. at 190. The victims’ families, “most of the prosecution,” and the victim witness coordina tor were seated in the area toward which Juror Vetter turned. Id. at 191. Although he could no t be sure, Mr. James believed he saw Juror Vetter turn toward th e audience during the penalty stage, rather than the guilt stage, of the trial. On the last day of the pe nalty phase, Mr. James tes tified, a man entered the courtroom, sat down by the victims’ families and Mr. Ivens’s former college roommate, and appeared to shake hands and introduce hims elf. At some point—eith er then or at the end of jury instructions—Mr. James saw th is man “hugging” the family members, “slapping [them] on the back,” and placing his arm around them as if they were friends. Id. at 194. Mr. James testified he took M r. Stouffer’s other counsel, Mr. Anderson, out into the hall and said he thought “there[ wa s] something up betwee n [Juror] Vetter and- 13 - the man and the people—the victim’s fam ily. There[ was] so mething going on.” Id. at 195. Mr. James acknowledged on cross-examinati on that he had no personal knowledge of the man’s identity. Rather, he later lear ned from Mr. Anderson th at the man was Juror Vetter’s husband. d. Defense Attorney Richard Anderson Mr. Stouffer’s last witness was defense co unsel Richard Anderson, who served as second chair at the 2003 retrial. At some poi nt during the penalty phase, “it was brought to [Mr. Anderson’s] attention that [Juror] Vett er was there with a ma n that—the way they were engaged, it appeared it was obviously her husband.” Id. at 201. 2 He then observed “some communication” between Juror Vette r and somebody in the portion of the courtroom where Mr. Ivens’ s family was seated. Id. Suspecting Juror Vetter was communicatin g with her husband, Mr. Anderson approached a man who “was in a very cong ratulatory, handshaking-type manner and was communicating with members of the Doug Ivens group.” Id. at 202-03. That man confirmed to Mr. Anderson that he was Juror Vetter’s husband, Mr. Anderson testified. When Mr. Anderson approach ed him, Mr. Vetter was with one of the people he had placed his arm around previously , who introduced himself as Ted Roland. Mr. Anderson

2 Mr. Anderson changed his story slightly on cross-examination, saying he himself observed Juror Vetter and the unidentified ma n enter the courtroom that morning.- 14 - said he later learned Mr. Roland was Mr. Iv ens’s former roommate . Mr. Anderson asked Mr. Vetter to remain in the courth ouse, but Mr. Vetter departed. On cross-examination, Mr. Anderson said he could not remember whether he observed communication between Juror Vetter and the man w ith whom she entered the courtroom, and whom Mr. Anderson lat er presumed to be her husband. The District Court’s Ruling 4. On September 25, 2014, th e district court entered a short order denying Mr. Stouffer’s § 2254 jury tampering claim. The order contained the fo llowing “findings of fact”: Mr. Vetter and Juror Vetter had no verbal conversations about the case other than a short telephone call during the second stage of trial when Juror Vetter was informi ng her husband the jury was to be sequestered. During that call Mr. Vetter told Juror Vetter his father informed him there was a newspaper article about the jurors . Juror Vetter told her husband she could not talk about it and nothing more was discussed. Mr. Vetter did not see his wife until she entered the courtroom. He did not talk with his wife about the case and did no t witness any of the te stimony presented or attorneys’ arguments. The only “communication” between the two consisted of a wink and smile from Mr. Vetter to his wi fe when the jury was entering the courtroom before the first stage verdict, to which she mouthed that she loved him. He m eant the gesture as a greeting and was not attempting to influence her in a ny manner. Juror Vetter only saw her husband that one day of trial and did not communi cate or learn anything about the trial or [Mr. Stouffer] fro m her husband or from anyone in the gallery. . . . None of the jurors witnessed a ny verbal or non-verbal communication between Juror Vetter and anyone in the gallery. . . . [A]ll of the jurors based their decisions and verdic t on the evidence and testimony presented in court. The Court finds Juror Douglas’s [sic] testimony regarding communication between the Vetters . . . to be less than credible. . . .- 15 - ROA, Vol. 1 at 472-74. To support its c onclusion that Juror Douglass was not credible, the district court noted her 2005 conv iction for falsifying a police report. Based on these findings, the court concluded any communi cation between the Vetters was harmless: Assuming some improper communicatio n to have occu rred during the second stage of [Mr. Stouffer’s] trial, [t he State] has demonstrated any and all communication to be harmless. Other than a brief recognition and salutation between the Vetters, no jurors witnessed any communication between any member of th e jury and anyone in the gallery. . . . [None] of the jurors [was] improperly influenc ed by outside communication. The verdict was the result of deliberations based on the evidence and testimony presented during trial and was the co llective product of each juror’s noninfluenced determination. Any possible improper communication was harmless. ROA, Vol. 1 at 474. On September 25, 2014, the district cour t entered judgment in favor of the State and denied a certificate of appealability. Four da ys later, at the State’s urging, the district court entered a “Corrected Order” revising tw o aspects of its original order that are immaterial to this appeal. Mr. Stouffer filed a notice of appeal on Oc tober 24, 2014. On July 8, 2015, we issued a certificate of appeal ability limited to th e question “whether the district court erred in its resolution of the jury tampering issue that this court remanded on December 26, 2013.” Do c. 10284932. II. DISCUSSION The district court’s order offers brief analysis, but its denial of relief is appropriate. The order does not discuss th e state court evidence or Mr. Stouffer’s- 16 - evidence from the evid entiary hearing. And according to Mr. Stouffer, it mistakenly finds that Mr. Vetter did not a ttend trial on the final day of the penalty stage, despite the state court record establishi ng otherwise. Even assuming Mr. Stouffer is correct, his arguments would not change the outcome of this appeal. The State presented testimony at the hearing demonstrating that no juror, incl uding Juror Vetter, based his or her vote on anything other than the evid ence produced at trial. Mr . Stouffer’s eviden ce showed incourt non-verbal communication between the Ve tters, but not any effect on Juror Vetter’s vote. The record therefore does not show prejudice to Mr. Stou ffer, and the district court did not err in determining th at any improper communicati on between the Vetters was harmless. A. Legal Background Law of Juror Bias 1.

a. Right to an Im partial Jury

“ The Sixth Amendment as in corporated by the Fourteen th Amendment guarantees the right of a trial by jury in all state criminal cases.” Goss v. Nelson , 439 F.3d 621, 627 (10th Cir. 2006). “In essence, the right to jury trial guaran tees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Id. (quoting Irvin v. Dowd , 366 U.S. 717, 722 (1961)). “Included in that right is the right to a jury capable and willing to decide the case solely on the evidence before it.” United States v. Brooks , 569 F.3d 1284, 1288 (10th Cir. 2009) (quo tation omitted). “Though no trial can be perfect, one touchstone of a fair trial is an impartial trier of fact.” United States v. Cerrato-Reyes , 176 F.3d 1253, 1258-59 (10th Cir. 1999) (cita tion, quotation, and brackets omitted).- 17 - “Because impartial jurors are th e cornerstone of our system of justice and central to the Sixth Amendment’s promis e of a fair trial, we guard jeal ously the sanctity of the jury’s right to operate as freely as possible from out side unauthorized intrusions purposefully made.” Stouffer , 738 F.3d at 1213 (quo tations omitted). b. Remmer Hearings Faced with “credible evidence of jury tampering” —that is, “improper external communication with a juror about a matter pe nding before the jury”—“a trial court has a duty to investigate.” Id. “When a trial court is apprised of the fact that an extrinsic influence may have tainted the trial, the pr oper remedy is a hearing to determine the circumstances of the improper contact and the extent of the prejudice, if any, to the defendant.” Id. at 1214 (quotation omitted). These hearings are known as “ Remmer hearings,” after the Supreme Court’s seminal decision in Remmer v. United States , 347 U.S. 227 (1954). There, the Court held that “[i]n a criminal case, any private communi cation, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial.” Remmer , 347 U.S. at 229. As we explained in Stouffer , “[t]he presumption is not conclu sive, but the burden rests heavily upon the Government to establish, after no tice to and a hearing of the defendant, that such contact with the juror was harmless to the defendant.” 738 F.3d at 1214 n.5 (quoting Remmer , 347 U.S. at 229). “Once the go vernment rebuts the presumption of- 18 - prejudice in a Remmer hearing, the burden then shifts to defend ant to show actual prejudice.” United States v. Armendariz , 922 F.2d 602, 606 (10th Cir. 1990). 3 After presentation of the parties’ evidence, the district court analyzes the substance of any improper communications in light of “the entire record.” United States v. Aguirre , 108 F.3d 1284, 1288 (10th Cir. 1997); see also Mayhue v. St. Francis Hosp. of Wichita,
Inc. , 969 F.2d 919, 924 (1 0th Cir. 1992) (calling for holistic examination of “all of the facts and circumstances of the case”). The court’s inquiry should be “objective,” asking only how a reasonable person in the jurors’ po sition would be affected by the improper communications. United States v. Klein , 93 F.3d 698, 703 (10th Cir. 1996).

c. Remedy for Violation of Right to an Impartial Jury If a defendant’s right to an impartial jury has been violated, he is entitled to a new trial. See United States v. Scull , 321 F.3d 1270, 1280 (10th Cir. 2003). But “not every incident [involving bias] requires a new trial. The test is whether . . . the misconduct has prejudiced the defendant to the extent that he has not received a fair trial.” United States v. Lawrence , 405 F.3d 888, 904 (10th Cir. 2005) (alterations in original) (quotation omitted).

3 We have said “ the presumption of prejudice appr oach relieves the moving party of any burden and forces the nonmovant to prove any exposure was harmless.” Smith v. Ingersoll-Rand Co. , 214 F.3d 1235, 1242 ( 10th Cir. 2000). But this comment appeared in a discussion of “the placement of the initial burden of proof” under Remmer

. Id. at 1241 (emphasis added). Smith did not displace our holding in Armendariz that once the government rebuts the Remmer presumption, a defendant must introduce affirmative evidence of prejudice. See United States v. Muessig , 427 F.3d 856, 865 (10th Cir. 2005) (explaining government has “the initial burden of proof” under Remmer (emphasis added)).- 19 - In conducting the fair-trial analysis, we recognize that “t he Constitution ‘does not require a new trial every time a juror has been placed in a pot entially compromising situation . . . [because] it is vi rtually impossible to shield jurors from every contact or influence that might theore tically affect their vote.’” United States v. Day , 830 F.2d 1099, 1103 (10th Cir. 1987) (alte rations in original) (quoting Rushen v. Spain , 464 U.S. 114, 118 (1983) (per curiam)). “ Surmise and suspicion may not be used to assail the integrity of a jury; it is p resumed that jurors will be true to their oath and will conscientiously observe the instructi ons and admonitions of the court.” Vigil v. Solano , 947 F.2d 955, 1991 WL 230177, at *4 (10th Cir. Nov. 8, 1991) (unpublished) (quoting United States v. Gigax , 605 F.2d 507, 515 (10th Cir. 1979)). 4 Accordingly, “something more than ‘unverified conjecture’ [is] needed wh ere only potentially suspicious circumstances are shown.” Id. (quoting United States v. Jones , 707 F.2d 1169, 1173 (10th Cir. 1983)). Federal Habeas Review of State Court Decisions 2. When a prisoner’s habeas claim was adj udicated on the merits in state court, § 2254 relief is available only if the prison er satisfies the demanding standards contained in the Antiterrorism and Effective Death Penalty Act of 1996. Wilson v. Sirmons , 536 F.3d 1064, 1073 (1 0th Cir. 2008). But “[i]f the state court did not decide the claim on the

4 Although not precedential, we find the reasoning of this and the other unpublished opinions c ited in this opinion to be instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.- 20 - merits, the stringent principles of deference under 28 U.S.C. § 2254 are inapplicable.” Id. at 1074. In that case, federal habeas courts review the claim de novo. Fairchild v. Trammell , 784 F.3d 702, 712 (10th Cir. 2015). Because the Oklahoma courts did not ad dress Mr. Stouffer’s jury-tampering claim on the merits, Stouffer , 738 F.3d at 1213, we review th at claim unconstrained by AEDPA deference. B. Standard of Review When a district court conduct s an evidentiary hearing in a § 2254 case, we review its factual findings for clear error a nd its legal conclusions de novo. Cannon v. Trammell , 796 F.3d 1256, 1271 (10th Cir. 2015).

“ We will reverse for clear error only if the district court’s finding was without factual support in the record or we are left with the definite and firm conviction that a mistake has been made.” United States v. Martinez-Jimenez , 464 F.3d 1205, 1209 (10th Cir. 2006) (quotation omitted). A district court’ s factual finding is also clearly erroneous “if it is simply not plausible or permissible in light of the entire record on appeal.” United States v. Gould , 672 F.3d 930, 935 (10th Cir. 2012) (quotation omitted). C. The District Court’s Order After a thorough review of the record, we conclude the district court properly determined Mr. Stouffer’s right to an impartial jury was not violated.- 21 - Date of Mr. Vetter’s Attendance 1. The State, for reasons that are unclear, in sists on defending the district court’s finding that Mr. Vetter attended only the last day of the guilt phase. But the state court record unambiguously refute s that proposition. Transcripts from state court clearly estab lish Mr. Anderson alerted the trial judge to possible improper communications on the last day of the penalty stage. 2d Stage Tr. Vol. IV at 604. When Mr. Anderson inform ed the court of his c oncerns, the attorneys had just finished delivering their closing argum ents as to the appropriate punishment. Id. at 539, 553, 574. The jury had al ready rendered its guilty verdict. Id. at 554. Mr. Anderson told the court durin g an in camera conference that he had approached the man he saw associating with the Ivens attendees in the gallery, and that man introduced himself as Juror Vetter’s husband. Id. at 605. The prosecutor confirmed during that conference that he had spoken with Mr. Roland, who said he was approached that morning by a man who introduced hims elf as the husband of a juror. Id. at 617. The district court’s order did not menti on this contemporaneous evidence from the state court record. In concl uding Mr. Vetter attended only the last day of the guilt stage, the order discussed only the Vetters’ test imony, which was offered 11 years after the events in question. Such dated testimony is often less probative than transcript evidence generated at or near the time of the events in question. See E.E.O.C. v. Sperry Corp. , 852 F.2d 503, 508 (10th Cir. 1988) (“Co ntemporaneous documentation is more reliable than a witness’ memory of an event which o ccurred years earlier.”).- 22 - Other Factual Findings 2. Among other things, the district court also found that (1) Mr. Vetter “did not talk with his wife about the case and did not w itness any of the testimony presented or attorneys’ arguments”; (2) the “only ‘communication’ between the two consisted of a wink and smile from Mr. Vett er to his wife when the jury was entering the courtroom before the first stage verdict, to which she mouthed that she loved him”; and (3) “Juror Vetter only saw her husband th at one day of trial and di d not communicate or learn anything about the trial or [Mr. Stouffer] from her husband or from anyone in the gallery.” ROA, Vol. 1 at 472-73. These findings conflict with other evid ence from the Septem ber 2014 evidentiary hearing. In particular, Depu ty Boles testified that on th ree or four occasions, he saw Juror Vetter exchange nods or glances with a man in the gall ery, whom he later learned to be Mr. Vetter. Deputy Boles said at leas t one of these exchanges—all of which he thought pertained to the case—indicated Juror Vetter thought Mr. Stouffer was “screwed.” ROA, Vol. 2 at 157. Most of them were pro-prosecution. The Vetters’ communication, in Deputy Boles’s view, was not “limited to a wink a nd a smile.” ROA, Vol. 2 at 160. In addition, Juror Douglass and Ms. Grider testified to seeing Juror Vetter nod her head at a man in the audience. And Mr. Ande rson testified that duri ng the penalty phase, he witnessed Juror Vetter commu nicating nonverbally with peop le in the section of the gallery where Mr. Ivens’s family was seated. After the ju ry left to deliberate, he approached one of those people, who identif ied himself as Juror Vetter’s husband.- 23 - The district court’s order does not attemp t to (1) reconcile this testimony with the Vetters’ testimony or (2) fully explain why it is not credible. 5 In fact, the order does not mention this testimony or the testimony presen ted at the state court on this issue. Due to the foregoing, we consider the entire record in the following analysis. D. Analysis Even if Mr. Stouffer’s evid ence is accepted as true, th e record does not show he was deprived of his right to an impartial jury. We therefore affirm dismissal of Mr. Stouffer’s § 2254 habeas application. The Record Does Not Show a Violation of Mr. Stouffer’s Right to an Impartial 1. Jury Juror Vetter and Mr. Vetter should not ha ve communicated about the case. But assuming they did, “ no trial can be perfect,” Cerrato-Reyes , 176 F.3d at 1258, and the record does not show that Mr. Stou ffer did not receive a fair trial. Detective Boles testified about the Ve tters’ nonverbal communications (1) in 2003, at the state trial cour t’s in camera hearing, and (2) in 2014, at th e evidentiary hearing in federal district court. Although he testified at greater lengt h and was subject to cross-examination at the latter hearing, he di d not add materially to his 2003 testimony, which the trial judge found “speculative.” Stouffer , 738 F.3d at 1215 & n.7, 1216 n.8.

5 As explained above, the district court did find Juror Douglass’s testimony “less than credible” in light of h er prior conviction and statem ents she made that were inconsistent with other witne sses’ testimony. ROA, Vol. 1 at 474. The court also could reasonably have discounted te stimony from Ms. Grider. In any event, Mr. Stouffer does not rely on the testimony of either Juror Douglass or Ms. Grider on appeal.- 24 - We remanded so the parties could develop the record as to wh ether any nonverbal communications affected Juror Vetter or any of her fellow jurors. As to the latter, the State’s evidence and the overall record show they were not aware of any communications between the Vetters, and Mr. Stouffer does not co ntest the district court’s finding to that effect. As to Juror Vetter, the State’s evidence shows no outside influence on Juror Vetter and the overall record shows that any influence Mr. Vetter’s nonverbal communication may have had on her is speculativ e. Nothing that has come to light since 2003 suggests Mr. Stouffer was deprived of his right to an impartial jury. Deputy Boles said at the 20 14 hearing that he saw the Ve tters exchange glances or nods at most four times, a majority of which seemed to be “pro prosecution.” ROA, Vol. 2 at 168. It was “clear” to him that the Vetters were communicating about the case, and at one point they rolled th eir eyes in a manner that suggested Mr. Stouffer was “screwed.” Id. at 157, 160. Taking Deputy Boles’s testimony as true, it does not indicate Mr. Vetter’s views affected his wife’s cons ideration of the evid ence, and we must presume Juror Vetter followed the trial court’s in struction to decide the case solely on the basis of the evidence presented. See Banks v. Workman , 692 F.3d 1133, 1150 (10th Cir. 2012). Indeed, Deputy Boles described the look the Vette rs exchanged as “kind of like, duh,” ROA, Vol. 2 at 163, which sugges ts she may already have made up her mind regarding Mr. Stouffer’s culpability . Even if she had not, th e record does not show her husband’s non-verbal communications a ltered her performance as a juror. To conclude these communications undermined Juror Vetter’s impartiality, we would have to engage in impermissible “surmise” and “ unverified conjecture.” Vigil , 1991 WL 230177, at *4.- 25 - The same goes for the testimony of Mr. Stouf fer’s trial attorneys. Mr. James said he saw Juror Vetter look toward a section of th e gallery in which the victim’s family, as well as a man who had entered with her that mo rning, were seated. He did not testify to observing Juror Vetter communicate with anyone in the gallery. Mr . Anderson did say he saw “some communication” between Juror Vette r and somebody seated in the gallery. ROA, Vol. 2 at 201. But he did not iden tify Juror Vetter’s interlocutor, nor did he suggest the communication concerned Mr. St ouffer’s case. On the basis of this testimony, only forbidden “unver ified conjecture” could esta blish that Mr. Stouffer was prejudiced by the Vetters’ nonverbal communication. Vigil , 1991 WL 230177, at *4. It would require yet further prohibited speculati on and conjecture to conclude any prejudice was so great that Mr. Stouffer “has not received a fair trial.” Lawrence , 405 F.3d at 904. 6

6 The parties disagree about whether our opinion remanding this case placed on the State the burden of overcoming a presumptio n of prejudice. We need not resolve this dispute because it does not affect the outcome. Although “ this presumption generally does not apply” in habeas proceedings, Malicoat v. Mullin , 426 F.3d 1241, 1250 (10th Cir. 2005), we arguably suggested the distri ct court should apply the presumption on remand. Even if the State was required to rebut the Remmer presumption, the State carried its burden by pres enting evidence showing the Vetters’ communications were limited and did not affect Juror Vetter’s cons ideration of the case. The State put on evidence regarding all living ju rors in Mr. Stouffer’s case , as well as Juror Vetter’s husband, none of whom suggested Mr. Vetter interfered with any of the jurors’, including Juror Vetter’s, impartial performance of their duties. The burden then shifted to Mr. Stouffer to introduce evidence showing “actual prejudice.” Armendariz , 922 F.2d at 606. For the reasons explained above, we conclude the record does not show prejudice or lack of fair trial. Whether the Remmer presumption applies or not, therefore, Mr. Stouffer is not entitled to a new trial. Mr. Stouffer also contends that by re ceiving evidence on whether the Vetters communicated during trial, the district c ourt violated the mandate rule, which “ requir[es] trial court conformity with the ap pellate court’s terms of remand.” Dish Network Corp. v. Arrowood Indem. Co. , 772 F.3d 856, 864 (10th Cir. 2014) (quotation omitted). Continued . . .- 26 - Harmless Error and No Showing of Prejudice 2. The district court order concluded th at “[a]ny possible im proper communication [between the Vetters] was harmless.” ROA, Vol. 1 at 474. We have determined the record does not show that any improper communications between the Vetters affected Juror Vetter’s impartial cons ideration of the evidence and therefore caused any prejudice to Mr. Stouffer or otherwise undermined his right to a fair trial. This determination leads us to affirm the district cour t’s harmlessness conclusion. W hen a § 2254 applicant alleges violati on of his constitutiona l rights, “we apply the harmless-error stand ard articulated in Brecht v. Abrahamson , 507 U.S. 619, 113 S. Ct. 1710, 123 L.Ed. 2d 353 (1993), and in O’Neal v. McAninch , 513 U.S. 432, 115 S. Ct. 992, 130 L.Ed. 2d 947 (1995).” Wilson , 536 F.3d at 1073. Under this standard, “ relief is only proper if the error had subs tantial and injurious effect or influence in determining

According to Mr. Stouffer, the district cour t’s “job was not to revisit the existence or content of the historical facts but to decide wh ether, as this Court instructed, the Vetters’ ‘improper communication influen ced the jury.’ The facts were fixed; the question was the harm they produced.” Aplt. Br. at 39. This argument misunderstands the law and our previous opinion. “The scope of the mandate . . . is carved out by exclusion: unless the dist rict court’s discretion is specifically cabined, it may exercise di scretion on what may be heard.” Cook v. Rockwell Int’l Corp. , 790 F.3d 1088, 1101 (10th Cir. 2015) (ellipsis in original). Because we did not “specifically cabin[]” the di strict court to examining p rejudice, it was free to receive testimony on “historical facts. ” Moreover, we held in Stouffer that the district court had erred by failing to hold “a hearing to uncover the facts and circumstances of the contact , including the substance and extent of Juror Vetter’s co mmunication with her husband about the case, whether other jurors were aware of this comm unication, and whether they influenced her decision or other jurors’ decisions abou t Mr. Stouffer’s sentence.” 738 F.3d at 1219 (emphasis added). The dist rict court was therefore not only permitted but also required to consider the historical fa cts regarding the Vett ers’ communication during trial.- 27 - the jury’s verdict.” Id. (quotation omitted). “Under the Brecht / McAninch test a habeas petitioner obtains plenary review to determin e whether a trial error resulted in actual prejudice.” Welch v. Workman , 639 F.3d 980, 992 (10th Ci r. 2011) (quotation omitted). The record does not show th e Vetters’ communications “ had substantial and injurious effect or influence in determining the jury’s verdict.” Wilson , 536 F.3d at 1073 (quotation omitted). 7
III. CONCLUSION Our review of the state record and the dist rict court’s evidentiary hearing does not show a violation of the right to an impartia l jury. We therefore affirm denial of Mr. Stouffer’s § 2254 habeas co rpus application.

7 At the evidentiary hearing, Juror Doug lass testified that during deliberations, Juror Vetter (1) told other ju rors “we need to put [Mr. St ouffer] back on death row,” ROA, Vol. 2 at 31, and (2) harassed Juror Douglass by standing ov er her, yelling, and calling her names. The district court disc redited this testimony and found (1) “[t]he subject of whether [Mr. St ouffer] was on death row wa s never discussed during deliberations,” and (2) the other jurors “wer e not influenced by [Juror Vetter] or any other juror in determining their verdict.” ROA, Vol. 1 at 486. It also found “[n]one of the jurors witnessed any verb al or non-verbal communication between Juror Vetter and anyone in the gallery.” Id. Mr. Stouffer does not challeng e these findings on appeal, and we therefore do not address them.