*

The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan, sitting

by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0179p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ANGELA GARCIA,

Petitioner-Appellant,

v.

PATRICIA ANDREWS, Warden,

Respondent-Appellee.

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No. 05-3856

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 04-00612—Paul R. Matia, District Judge.

Argued: April 24, 2007

Decided and Filed: May 17, 2007 

Before: SILER and GILMAN, Circuit Judges; ZATKOFF, District Judge.*

_________________

COUNSEL

ARGUED: David L. Doughten, Cleveland, Ohio, for Appellant. Elizabeth T. Scavo, OFFICE OF

THE OHIO ATTORNEY, Columbus, Ohio, for Appellee. ON BRIEF: David L. Doughten,

Cleveland, Ohio, for Appellant. Stephen P. Carney, Gene Crawford, OFFICE OF THE

ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

_________________

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. Angela Garcia was convicted in an Ohio state

court of aggravated murder, aggravated arson, and insurance fraud in connection with the deaths of

her two young daughters as a result of a fire that she set in her home in order to collect insurance

proceeds. She was sentenced to life imprisonment with the possibility of parole after 20 years.

After exhausting her direct appeals in state court, Garcia petitioned for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254, raising seven assignments of error. The district court denied the

petition, but granted a Certificate of Appealability on the issue of whether the trial court’s failure

1
No. 05-3856 Garcia v. Andrews Page 2

to investigate Garcia’s allegations of juror misconduct warranted a new trial. For the reasons set

forth below, we AFFIRM the judgment of the district court. 

I. BACKGROUND

Garcia was convicted in the Court of Common Pleas of Cuyahoga County, Ohio on charges

of (1) aggravated murder of a person under thirteen years old, in violation of Ohio Rev. Code

Ann.§ 2903.01(C); (2) aggravated murder, in violation of Ohio Rev. Code Ann. § 2903.01(A);

(3) murder, in violation of Ohio Rev. Code Ann. § 2903.02; (4) aggravated arson, in violation of

Ohio Rev. Code Ann. § 2909.02; and (5) insurance fraud, in violation of Ohio Rev. Code Ann.

§ 2913.47. After several of the counts were merged together for sentencing purposes, Garcia

received a sentence of life imprisonment with eligibility for parole after 20 years. The Ohio Court

of Appeals described the basic facts of the case as follows:

On the evening of November 20, 1999, Garcia and her two daughters,

Nyeemah, three years old, and Nijah, aged two, were at their home

located on Harvard Avenue, Cleveland, Ohio. Before night’s end, the

home was destroyed by fire, the two young girls dead from smoke

inhalation, and Garcia the only survivor. Though the fire was

initially ruled accidental by the Cleveland Fire Department, one

month later that conclusion was changed to fire by arson after

investigators conducted an in-depth investigation as to its cause and

origin. The fire occurred on a Saturday and the remaining parts of

the house were razed by the city on Monday, two days after the fire.

Photographs of the scene, inside and outside the house, were taken

either immediately after the fire had been extinguished or the next

day, Sunday.

In February 2000, Garcia was indicted for having intentionally set the

fire in order to collect insurance proceeds and for causing the death

of her children as part of that plan. At trial, Garcia maintained the

fire was accidental and that she tried to save her girls, but could not

because of the fire’s intensity.

Garcia’s first trial ended in a mistrial after the jury found her guilty on the insurance-fraud

count but was unable to reach a verdict as to the remaining counts of the indictment. The Court of

Common Pleas held Garcia’s sentencing for the count of insurance fraud in abeyance until after her

retrial. Garcia’s second trial also ended in a mistrial because the jury could not reach a verdict on

the murder and arson counts. Her third trial commenced in late May of 2001. Jury deliberations

began on June 3, 2001. The next morning, the trial judge received the following note signed by jury

foreman William McGary, with two other jurors listed as “concurring”:

Your Honor, because I work in the immediate area of the burnt out

home I feel grave concern for me and my family’s personal safety.

The family of the defendant owns property in the neighboring area

and can easily identify me, especially since we are in the same

business. The propensity for contact, (visual or physical,) is highly

likely. It is my feeling as well as those of my fellow jurors, that I be

removed from the jury. 

Although the letter states that Juror McGary was in the same business as the defendant’s

family, the record is devoid of any evidence that McGary knew Garcia or her family personally. A

second note was later delivered to the trial court in which the jurors requested a change in their
No. 05-3856 Garcia v. Andrews Page 3

foreman. After the trial court received the first note, it convened both the prosecution and defense

counsel in chambers to give each side an opportunity to respond to the note. The defense argued

that the foreman did not reveal during voir dire his knowledge of the defendant’s family or that he

was in the same business as the defendant’s family. Arguing that the jury had been tainted, defense

counsel asked for an immediate mistrial or, in the alternative, for the trial court to voir dire the jury

immediately to determine the existence and extent of any taint. 

The trial court denied the motion for a mistrial and the request for voir dire. Instead, it sent

a note to the jury instructing them that they must continue to deliberate. Defense counsel then

moved for the court to sequester the jury and conduct an immediate postverdict voir dire. The trial

court denied the motion after concluding that a postverdict voir dire is precluded under Ohio law.

A few minutes after the judge called counsel into chambers to announce the ruling on the postverdict

voir dire motion, the jury returned a verdict of guilty on the murder and arson counts. 

Garcia appealed her conviction, raising 11 assignments of error, including the one at issue.

The Ohio Court of Appeals affirmed Garcia’s conviction. Garcia appealed to the Ohio Supreme

Court, which dismissed her appeal as not involving a substantial constitutional question. Having

exhausted all of her direct appeals in state court, Garcia declined to pursue postconviction relief

within the state system and instead filed a petition in the federal district court for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. She raised seven claims for relief in her petition. 

The designated magistrate judge issued a Report and Recommendation in December of 2004,

concluding that Garcia should be granted habeas relief on her fourth claim of error, which Garcia

had described as follows:

During deliberations, [a] juror brought to the court’s attention

allegations of [a juror’s] misconduct. The trial court refused to

inquire as to the nature of the misconduct and the extent to which the

deliberations might have been contaminated. . . . The failure of the

trial court to dismiss the juror, or in the alternative, to hold an

evidentiary hearing was in violation of the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution.

Disagreeing with the magistrate judge’s Report and Recommendation, the district court

denied Garcia’s petition on all grounds. With respect to the juror-misconduct claim, the district

court concluded that because there was no evidence of any extraneous influence on or contact with

Juror McGary, the trial court’s refusal to grant a mistrial or conduct a voir dire to investigate

potential juror taint was not “contrary to clearly established federal law as established by the

Supreme Court.” The district court, however, issued a Certificate of Appealability as to this issue,

and this court denied Garcia’s motion to expand the Certificate. Garcia timely appealed. 

II. ANALYSIS

A. Standard of review

We review the legal basis for a district court’s dismissal of a habeas petition de novo. Davis

v. Coyle, 475 F.3d 761, 766 (6th Cir. 2007). The factual findings underlying the district court’s

analysis will not be set aside unless those findings are clearly erroneous. Id. Because Garcia filed

her petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), that statute governs our review of this case. A writ of habeas

corpus may not be granted under AEDPA for any claim that was adjudicated on the merits in state

court unless the adjudication of that claim
No. 05-3856 Garcia v. Andrews Page 4

(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)(1)-(2). 

In applying AEDPA, we look to the last state-court decision on the merits, which in this case

is the decision of the Ohio Court of Appeals. See Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir.

2006). The Dyer court further explained this court’s scope of review under AEDPA:

A state-court decision is considered contrary to federal law 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.

. . . 

The application of federal law is unreasonable where the state court

identifies the correct governing legal principle from the Supreme

Court’s decisions but unreasonably applies that principle to the facts

of the prisoner’s case. When assessing unreasonableness, a federal

habeas court may not issue the writ simply because it concludes in its

independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly. Rather,

that application must also be unreasonable. Factual findings made by

the state court, moreover, are presumed correct in the absence of

clear and convincing evidence to the contrary. 

Id. at 284 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)) (brackets and quotation marks

omitted). If “a state court does not squarely address the claim but engages in what resembles the

proper constitutional analysis,” this court will similarly not issue the writ unless it determines “that

the state court decision was contrary to, or an unreasonable application of, federal law.” Dyer, 465

F.3d at 284.

B. Failure to conduct a Remmer hearing

Garcia argues that the state trial court’s failure to hold a hearing to investigate potential juror

misconduct violated her right to have her case decided by an impartial jury. She contends that in

refusing to hold a hearing, the trial court was trying to avoid a mistrial by not allowing Garcia the

opportunity to prove that her jury had been impermissibly tainted. With respect to this claim, the

Ohio Court of Appeals concluded as follows:

On the record before us, there is nothing to indicate that the

foreman’s or other jurors’ concerns about safety tainted their verdict.

To the contrary, the verdict forms show that a verdict had already

been reached before the jury replaced the foreman. Indeed, if the

foreman’s vote was based on his personal concern for safety, then a

vote of not guilty would be expected. That was not his vote,

however. Absent evidence of an improper outside influence and
No. 05-3856 Garcia v. Andrews Page 5

resulting bias, we do not find that Garcia was denied a fair trial.

Garcia’s fourth assignment of error is overruled.

State v. Garcia, No. 79917, 2002 Ohio App. LEXIS 4362, at *30 (Ohio Ct. App. Aug. 15, 2002).

The controlling case in this area of the law is Remmer v. United States, 347 U.S. 227 (1954).

In Remmer, the petitioner discovered after the jury had returned a guilty verdict that an unnamed

person had communicated with a juror during the trial and had “remarked to him that he could profit

by bringing in a verdict favorable to the petitioner.” 347 U.S. at 227. The juror who had been

contacted by this third party eventually became the jury foreman. After the juror reported the

incident to the judge, the judge informed the prosecutor and the Federal Bureau of Investigation

(FBI). The FBI investigated the incident and delivered its report to the judge. Neither the petitioner

nor his attorney were informed of the incident. They learned of it only through newspaper accounts

published after the jury’s verdict had been returned. 

The Supreme Court remanded the case to the district court “to hold a hearing to determine

whether the incident complained of was harmful to the petitioner, and if after [a] hearing it is found

to have been harmful, to grant a new trial.” Id. at 230. It also determined that 

[i]n a criminal case, any private communication, 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, if not made in pursuance of known rules

of the court and the instructions and directions of the court made

during the trial, with full knowledge of the parties. 

Id. at 229. The Court held that this presumption is not conclusive, but that the government bears a

heavy burden to establish that any contact made with a juror “was harmless to the defendant.” Id.

In a later case discussing the interplay between Rule 606(b) of the Federal Rules of Civil

Procedure and a defendant’s Sixth Amendment right to a fair trial, the Supreme Court reiterated that

an evidentiary hearing delving into allegations of juror misconduct is required only where “extrinsic

influence or relationships have tainted the deliberations.” Tanner v. United States, 483 U.S. 107,

120 (1987) (holding that a postverdict evidentiary hearing into allegations of drug and alcohol use

by jurors during the trial was not required under the Sixth Amendment because “juror intoxication

is not an ‘outside influence’ about which jurors may testify to impeach their verdict”). Rule 606(b)

“is grounded in the common-law rule against admission of jury testimony to impeach a verdict and

the exception for juror testimony relating to extraneous influences.” Id. at 121 (emphasis added).

The Ohio Court of Appeals found that no evidence of extraneous influence was shown in the

present case, and therefore held that Garcia was not denied a fair trial. State v. Garcia, 2002 Ohio

App. LEXIS at *30. Garcia has not shown that this conclusion is contrary to or an unreasonable

application of clearly established federal law. 

The principal case upon which Garcia relies in support of her contention that a Remmer

hearing was required is Nevers v. Killinger, 169 F.3d 352 (6th Cir. 1999), a case that we find

inapposite. In Nevers, the defendants were two white Detroit police officers convicted of beating

an African-American suspect to death. Id. at 354-55. The case received heavy media coverage,

similar to the then-recent Rodney King beating in Los Angeles. Id. at 356. Near the end of the case,

the trial court provided the jury with several movies for entertainment, including Malcolm X, which

begins with footage of the Rodney King beating as well as a “racially provocative and highly

inflammatory speech by Malcolm X.” Id. The trial court denied the defendants’ motion for a

mistrial on the basis of the movie. Id.
No. 05-3856 Garcia v. Andrews Page 6

After the guilty verdict was returned, the Nevers defendants presented several affidavits from

jurors contending that other extraneous information had reached the jury during the trial and

deliberations, including the allegation that the defendants had been involved in an undercover unit

with a reputation for harassing young black men. Id. at 357. A member of the jury had further

learned from news reports that the city was preparing for a potential riot in the event of an acquittal.

Id. at 369. This court held that Nevers and his codefendant were entitled to an evidentiary hearing

to have an opportunity to demonstrate “with specificity” that the jury was impermissibly tainted.

Id. at 374. “When a trial court is presented with evidence that an extrinsic influence has reached the

jury which has a reasonable potential for tainting that jury, due process requires that the trial court

take steps to determine what the effect of such extraneous information actually was on that jury.”

Id. at 373.

No such extrinsic influence exists in the present case. Juror McGary’s note referenced his

own subjective fear based on the fact that he worked in the area where the Garcia family owned

property and that he was “in the same business.” The fact that two other jurors signed the note

indicates that McGary discussed his fear with the other jurors. There is no evidence in the record,

however, that there was any outside influence on any of the jurors at any point during either the trial

or jury deliberations. 

This court has defined “an extraneous influence on a juror [as] one derived from specific

knowledge about or a relationship with either the parties or their witnesses.” United States v.

Herndon, 156 F.3d 629, 635 (6th Cir. 1998). Examples of extraneous influence include “prior

business dealings with the defendant, applying to work for the local district attorney, conducting an

out of court experiment, and discussing the trial with an employee.” United States v. Owens, 426

F.3d 800, 805 (6th Cir. 2005) (denying postconviction relief from a federal conviction for bank

robbery where the petitioner argued that Owens was entitled to a Remmer hearing because one of

the jurors passed a note to the judge expressing the juror’s discomfort with Owens for “staring at

her”) (citation and quotation marks omitted). None of the examples set forth in Owens are

analogous to a juror simply expressing his subjective fear as in the present case. 

Another case cited by Garcia, United States v. Davis, 177 F.3d 552 (6th Cir. 1999), is also

distinguishable despite some surface similarities. As in the present case, one of the Davis jurors

(Juror Estes) sent a note to the judge asking to be excused from further service. Id. at 556.

Moreover, Juror Estes based his fear in part on the fact that he lived in the same area as the

defendants and had “operated a used car business that catered to individuals in a section of town

heavily populated by minority citizens.” Id. But the juror’s fear in Davis was primarily based on

the fact that he had previously done business with some of the defendants, and that he had heard

from one of his employees during the course of the trial “that members of the community were

already aware of Estes’s jury service and were discussing his role in the proceedings.” Id. This

court remanded for a Remmer hearing, reasoning as follows:

Given the fact that Estes was clearly motivated by fear of retaliation

from the defendants, their families, and their acquaintances, the fact

that the information that prompted the fear was provided by an

extraneous source, and the fact that a number of jury members

openly agreed that a person in Estes’s predicament should seek to be

removed from the panel, such further inquiry seems not only

appropriate, but necessary to ensure the impartiality of the jury.

Id. at 557 (emphasis added).

The extraneous contact from the juror’s employee in Davis is what distinguishes that case

from the one before us. To be sure, the jurors here should not have been discussing Juror McGary’s
No. 05-3856 Garcia v. Andrews Page 7

subjective fear of reprisal even in the absence of an extraneous source, but the potential harm to

Garcia is too attenuated to warrant habeas relief. This is especially so because, as the Ohio Court

of Appeals recognized, one would have expected a vote of not guilty if Juror McGary was concerned

about his personal safety. The fact that Juror McGary and all of the other jurors instead voted to

convict Garcia indicates the lack of a due process violation. 

Moreover, how we would apply our own Sixth Circuit precedents does not guide the analysis

in the present case. See Carroll v. Renico, 475 F.3d 708, 712 n.3 (6th Cir. 2007) (“Thus, while this

Circuit in direct appeals may require more stringent procedures, United States Supreme Court

precedent guides our review of state habeas petitions.”). We find no Supreme Court precedent that

requires a Remmer hearing on the facts before us. The Ohio Court of Appeals, therefore, did not

engage in an unreasonable application of clearly established federal law as determined by the

Supreme Court or reach a result contrary to that law. See Dyer v. Bowlen, 465 F.3d 280, 284 (6th

Cir. 2006).

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.