Gerald Von Tobel v. James Benedetti

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD VON TOBEL, No. 18-15892

Petitioner-Appellant,

D.C. No.

v. 3:10-cv-00073-

LRH-VPC

JAMES BENEDETTI; ATTORNEY

GENERAL FOR THE STATE OF

NEVADA, OPINION

Respondents-Appellees.

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 Petitioner-

Appellant.

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 non-

egregious 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.