In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 23-1266 LEON CARTER, Petitioner-Appellant, v.
LIZZIE TEGELS, Warden, Respondent-Appellee. ____________________
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:17-cv-01497-PP — Pamela Pepper, Chief Judge. ____________________
ARGUED JANUARY 29, 2025 — DECIDED APRIL 24, 2025 ____________________
Before BRENNAN, SCUDDER, and ST. EVE, Circuit Judges. BRENNAN, Circuit Judge. The State of Wisconsin charged Leon Carter with sexual assault, strangulation, and kidnap- ping. At trial, during deliberations, the jury sent a note with a question to the judge. But the bailiff answered the question without first relaying it to the judge. The jury found Carter guilty on all counts. When the parties learned of the bailiff’s response, Carter moved for a mistrial, which was denied. 2 No. 23-1266
On direct appeal Carter’s appellate counsel filed a no- merit brief that summarized the record, highlighted legal ar- guments, and explained why they lacked arguable merit. The brief discussed why any legal arguments stemming from the bailiff’s action would have been frivolous. The Wisconsin Court of Appeals agreed and said so in a footnote in its opin- ion. The Wisconsin Supreme Court denied certiorari. On federal habeas review, Carter asserts two violations. First, he submits the state appellate court denied him a mean- ingful appeal under Anders v. California, 386 U.S. 738 (1967). Second, he argues the state trial judge erred by not holding a hearing to investigate jury intrusion, contrary to Remmer v. United States, 347 U.S. 227 (1954). The district court rejected the former contention and did not consider the latter, so Carter appeals to this court. We conclude that Carter’s Anders claim fails. The Consti- tution does not promise a defendant the right to exhaustive analysis in the disposition of his claims. And Carter’s Remmer claim cannot clear the high hurdle set by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. For these reasons, we affirm the district court. I. Background Around 1996, Ms. Smith (a pseudonym) and Carter began dating. According to the amended criminal complaint, during their years-long relationship, Carter saw Smith as “property” and “severely physically, sexually, and psychologically abused” her. For his acts, in 2011 Carter was charged with six crimes: three counts of second-degree sexual assault through the use of force; second-degree sexual assault causing injury No. 23-1266 3
to a sex organ; kidnapping; and strangulation. 1 After a trial in 2012, a jury found him guilty on all counts. After the jury returned its verdict, the judge raised an is- sue with the parties. Earlier that day, the jury had given a note to the bailiff to deliver to the judge which read: “What hap- pens if we do not unanimously agree on one of the six counts?” Rather than giving the question to the judge to an- swer, the bailiff responded, “you need to just work and reach a unanimous verdict.” Carter moved for a mistrial. The judge denied the motion, explaining that because she would have given the same instruction, the verdict retained its integrity. Carter filed a notice of appeal challenging several issues from his trial. A few months later his appellate counsel con- cluded those arguments were frivolous, so he filed a no-merit report, also called an “Anders brief.” See WIS. STAT. § 809.32. In the first 30 pages, the brief detailed the facts and proceedings in the case. It then discussed several legal issues and explained why each issue lacked merit. It also included an as- sessment of why arguments about the bailiff’s communica- tion with the jury lacked merit. Carter filed a brief in response to his counsel’s no-merit report, as he may. Id. § 809.32(1)(e). The state appellate court then ordered counsel to file a sup- plemental report with additional analysis on two other issues. Appellate counsel filed a 14-page supplemental brief. The Wisconsin Court of Appeals affirmed Carter’s convic- tions. That court “independently reviewed the record, the no- merit report, the supplemental no-merit report, and Carter’s
1 WIS. STAT. §§ 940.225(2)(a)–(b), 940.31(1)(b), 940.235(1). 4 No. 23-1266
response.” It concluded “no issue of arguable merit could be pursued on appeal.” (cleaned up). In a footnote, the state appellate court stated it would not examine every issue in depth, including claims stemming from the bailiff’s communication with the jury: This court will not attempt to address every is- sue that arose in this case. The thirty-nine page no-merit report and the twelve-page supple- mental no-merit report provide an exhaustive summary of the numerous motions and rulings that occurred before and during trial. As noted, we agree with counsel’s analysis and conclusion that none of the issues identified presents an is- sue of arguable merit. State v. Carter, No. 2014AP1459–CRNM, 2015 WL 13173161, at *2 n.6 (Wis. Ct. App. Nov. 5, 2015). Carter petitioned the Wisconsin Supreme Court for certi- orari review in 2015. For the first time, he argued the Wiscon- sin Court of Appeals denied him a meaningful first appeal under Anders. He believed his appeal of the mistrial motion based on the bailiff’s statement had merit. So, the state appel- late court’s contrary conclusion violated Anders. Both the Wis- consin Supreme Court and the Supreme Court of the United States denied review. Carter then pursued federal habeas review. In his petition, he again claimed the Wisconsin Court of Appeals denied him an effective appeal under Anders. Carter’s habeas brief No. 23-1266 5
supporting his petition argued the state trial court violated Remmer.2 The district court denied habeas relief. Carter v. Tegels, No. 17-cv-1497, 2023 WL 129790, at *14 (E.D. Wis. Jan. 9, 2023). Ap- plying AEDPA’s deferential review, the district court held that the Wisconsin Court of Appeals did not violate Carter’s right to an effective appeal. Id. at *12–14. That the state appel- late court had read over 50 pages of briefing and reviewed a record spanning hundreds of pages led the district court to conclude that the Wisconsin Court of Appeals did not merely “rubber-stamp” the conclusions in the no-merit report. Id. at *14. The district court did not analyze Carter’s Remmer claim. It mentioned the case but only when reciting the parties’ ar- guments in their briefs. Id. at *10–11. The court also declined to grant Carter a certificate of appealability, a prerequisite for an appeal. Id. at *14; 28 U.S.C. § 2253(c). But this court granted Carter’s request for such a certificate on five issues: (1) whether the trial court violated Remmer; (2) whether the
2 Carter first argued a violation of Remmer in that brief, and the State
responded to his contention. We assume without deciding that the claim relates back. See Mayle v. Felix, 545 U.S. 644, 664 (2005). Relation back was not argued below, so we have chosen not to address it. See Wood v. Milyard, 566 U.S. 463, 473 (2012) (“[C]ourts of appeals … have the authority— though not the obligation—to raise a forfeited timeliness defense on their own initiative.”). The State offered a defense to the Remmer claim in its opposition brief in the district court. Like relation back, we assume without deciding that Carter’s Remmer claim was properly presented to that court. See McGhee v. Watson, 900 F.3d 849, 853 (7th Cir. 2018); see also McDowell v. Lemke, 737 F.3d 476, 481 (7th Cir. 2013). 6 No. 23-1266
Wisconsin Court of Appeals violated Anders; (3) whether the Remmer claim was properly presented to the district court; (4) whether the bailiff’s statement was presumptively prejudicial under Remmer; and (5) whether the standard in Brecht v. Abra- hamson, 507 U.S. 619 (1993), was met. II. Carter’s Anders claim A. Standard of review Carter is a state prisoner, so we first decide whether a state court has resolved his Anders claim. If so, we review the claim with deference under AEDPA. 28 U.S.C. § 2254(d)(1). If not, we review the claim without AEDPA’s deferential standard. Cone v. Bell, 556 U.S. 449, 472 (2009). The Wisconsin Supreme Court denied certiorari on Carter’s Anders claim. A certiorari denial is typically not an adjudication on the merits. Brown v. Davenport, 596 U.S. 118, 142 (2022). This is because the court’s review is discretionary. See WIS. STAT. § 809.62(1r). Often, when faced with a certiorari denial from a state supreme court, the federal habeas court “look[s] through” to the “last related state-court decision that does provide a relevant rationale.” Wilson v. Sellers, 584 U.S. 122, 125 (2018). In Carter’s certiorari petition to the Wisconsin Supreme Court, he argued for the first time that the Wisconsin Court of Appeals violated Anders. He could make that argument only after the state appellate court had issued its opinion. This means that when we “look through” the state supreme court’s certiorari denial, there is nothing to see, as it was the state ap- pellate court’s ruling that allegedly denied him an effective appeal. So, we review Carter’s Anders argument without AEDPA’s deferential standard. We review the district court’s No. 23-1266 7
decision de novo. Roalson v. Noble, 116 F.4th 661, 665 (7th Cir. 2024). AEDPA’s deferential review may apply under similar cir- cumstances. A state prisoner must raise each claim through “one complete round of state court review,” meaning the pris- oner argued the claim “at each level of state court review.” Mata v. Baker, 74 F.4th 480, 488 (7th Cir. 2023) (quoting Smith v. Gaetz, 565 F.3d 346, 351–52 (7th Cir. 2009)). This is so state courts have a “fair opportunity” to resolve a state prisoner’s claims. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Yet Carter’s argument that the state appellate court’s deci- sion violated Anders was not presented to that court. He did not raise the claim at each level in the state court system, so it was not exhausted. Carter could have conceivably exhausted his Anders claim a few ways. He could have filed a motion for reconsideration in the Wisconsin Court of Appeals. Or he could have completed a round of state postconviction litiga- tion. A decision resulting from either of those paths that “ad- judicated” Carter’s claim “on the merits” would mean that AEDPA’s deferential review would apply to his claim. 28 U.S.C. § 2254(d). That said, at oral argument before us, the State waived the exhaustion defense. 3 See 28 U.S.C. § 2254(b)(3). For these reasons, AEDPA’s deferential review does not apply because Carter’s Anders claim was not adjudi- cated “on the merits.” B. The merits of Carter’s Anders claim In Anders, an indigent defendant asked his appellate coun- sel to appeal his case. 386 U.S. at 739. Counsel, rather than
3 Oral Argument at 15:10–15:50, 17:37–17:50. 8 No. 23-1266
filing a brief, wrote a letter to the court stating that he con- cluded the appeal had no merit. Id. at 739–40. The Supreme Court said more is required: Counsel must “conscientious[ly] examin[e]” the case and explain why the appeal is frivolous. Id. at 744. Judges have a duty, too. “After a full examination of all the proceedings,” the court must “decide whether the case is wholly frivolous.” Id. Later, in Pennsylvania v. Finley, the Court explained that Anders is a prophylactic measure but is not “an independent constitutional command.” 481 U.S. 551, 554–55 (1987). Then, Smith v. Robbins expounded more on Anders’s standard. 528 U.S. 259, 273–76 (2000). Robbins instructs that to comply with Anders, a state’s procedure must “reasonably ensure[] that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal.” Id. at 278–79. Robbins also teaches that one indication a state’s no-merit procedure passes consti- tutional muster is if the state courts must “find the ap- peal … lacking in arguable issues, which is to say, frivolous.” Id. at 280. Carter argues to us that the Wisconsin Court of Appeals failed to follow Anders. 4 The state appellate court gave his Remmer claim short shrift, he contends, because it was re- solved in a footnote. Carter also takes issue with that court’s conclusion that his claims “lack[ed] arguable merit.” Instead, he argues, Anders requires confirming that his claims are “frivolous.”
4 Carter was appointed counsel in our court. We thank George Bur-
nett, Esq. for his excellent advocacy and the Law Firm of Conway, Olejniczak & Jerry, S.C. for their diligent efforts on behalf of Carter. No. 23-1266 9
We conclude that the Wisconsin Court of Appeals acted in accordance with Anders. It “independently reviewed” the rec- ord (hundreds of pages), the Anders brief, the supplemental brief, and Carter’s response brief (together exceeding 50 pages). The state appellate court also cited Anders, recogniz- ing its constitutional obligation. Though some of Carter’s claims were resolved in a footnote, the Wisconsin Court of Appeals agreed with the analysis in the no-merit brief. It de- fies good sense to force state courts to echo the analysis from a no-merit brief when they find that analysis persuasive. To- gether, this establishes that Carter’s appeal was “adequate and effective” and given serious consideration, satisfying An- ders. The district court correctly concluded the same. Carter, 2023 WL 129790, at *12–14. Further, the Anders brief submitted by appellate counsel summarized the facts and proceedings in the first 30 pages. This recitation “ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation of the case.” Robbins, 528 U.S. at 281. The Wisconsin Court of Appeals examined the brief’s summary for arguable issues. So a “trained legal eye” examined the rec- ord and assisted the state appellate court’s independent eval- uation. Id. As Carter sees it, the Fourteenth Amendment compels the state appellate court to write more than a footnote. But “fed- eral courts have no authority to impose mandatory opinion- writing standards on state courts.” Johnson v. Williams, 568 U.S. 289, 300 (2013). “The caseloads shouldered by many state appellate courts are very heavy, and the opinions issued by these courts must be read with that factor in mind.” Id. (foot- note omitted). Harrington v. Richter also tells us that state 10 No. 23-1266
courts need not append a statement of reasons to their deci- sions. 562 U.S. 86, 99 (2011). And Carter’s request for detailed analysis is not sourced in the Constitution’s text. If anything, federalism commands respecting how state courts decide their cases. Id. Our habeas review is qualified to “extreme malfunctions in the state criminal justice systems.” Id. at 102– 03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Ste- vens, J., concurring in the judgment)). Anders, Robbins, and Richter read together foreclose Carter’s claim. Nor is the Wisconsin Court of Appeals limited to the magic word “frivolous,” as Carter submits. True, a court can- not say a defendant’s claim is “unlikely to prevail on appeal.” Robbins, 528 U.S. at 279. But Robbins also tells courts it is per- missible to determine that a claim is “lacking in arguable is- sues, which is to say, frivolous.” Id. at 280. That is what the state appellate concluded here: “there is no issue of arguable merit that could be pursued on appeal.” Relatedly, Carter submits the Wisconsin Court of Appeals violated Anders because his Remmer claim has merit. Anders tells courts that, when presented with a no-merit brief, they must review the briefs and the record and independently con- clude the claims are frivolous. See McCoy v. Ct. of Appeals of Wis. Dist. 1, 486 U.S. 429, 442 (1988). For a procedural chal- lenge under Anders, a defendant should argue that the court neglected those duties. That is, such a claim must challenge the court’s procedures. Carter, however, disputes the state appellate court’s decision. By arguing that his Remmer claim has merit, Carter disagrees with that court’s contrary conclusion. That is not an Anders procedural challenge. If Carter believes the Wisconsin Court of Appeals wrongly resolved his Remmer claim, that No. 23-1266 11
conclusion should be challenged under 28 U.S.C. § 2254(d)(1) as “contrary to, or involv[ing] an unreasonable application of, clearly established Federal law.” Carter also urges us to review his appellate counsel’s An- ders brief. To Carter, the state appellate court adopted the rea- soning in that brief, so to assess that court’s conclusion we must review the brief’s legal analysis. But that does not fol- low. Carter’s habeas brief asserted that the state appellate court fell short under Anders. Arguing that “the state appel- late court violated Anders” is different from claiming “my attorney’s brief violated Anders.” As this court has held, “sep- arate and independent” claims must be pleaded distinctly. McGhee, 900 F.3d at 853. Courts look to what is “actually raised.” Id. Here, that was a violation by the state appellate court, not by his attorney. The district court said as well that Carter “has not argued that [his appellate counsel] violated Anders.” Carter, 2023 WL 129790, at *13. Earlier, the district court also told Carter he “must confine his future arguments to the question of whether the state court denied him his Fourteenth Amend- ment right to a meaningful appeal by accepting and adopting the no-merit brief,” even though “the petitioner believes his appellate lawyer should have withdrawn—or perhaps not filed—the no-merit brief.” Carter v. Foster, No. 17-cv-1497, 2019 WL 1326907, at *3 (E.D. Wis. Mar. 25, 2019). The certifi- cate of appealability framed Carter’s claim in the same way. 5
5 The certificate of appealability did not mention the no-merit brief.
One issue it asked the parties to address was: “whether the state appellate court violated Carter’s constitutional rights by concluding that his direct appeal presented no issue of arguable merit and summarily affirm- ing … .” 12 No. 23-1266
An ineffective assistance of counsel claim is another way for a defendant to challenge his attorney’s no-merit report. Robbins, 528 U.S. at 283–84; see also Morris v. Bartow, 832 F.3d 705, 709– 10 (7th Cir. 2016) (analyzing attorney’s Anders brief for ineffective assistance of counsel). So, we do not evaluate his attorney’s Anders brief. This remains true even though we construe his petition liberally because he is pro se. McGhee, 900 F.3d at 853. In sum, the Wisconsin Court of Appeals followed Anders and Robbins when adjudicating Carter’s claims. III. Carter’s Remmer claim Carter next claims that after learning of the bailiff’s com- munication with the jury, the state trial judge contravened Remmer by not presuming the bailiff’s statement was prejudi- cial and by failing to conduct a post-verdict hearing. 6 If a state court has adjudicated the merits of this Remmer claim, AEDPA’s deferential review applies. 28 U.S.C. § 2254(d). In its Anders review, the Wisconsin Court of Appeals concluded that Carter’s Remmer claim lacked arguable merit. So, that claim was “adjudicated on the merits,” meaning AEDPA’s deferential review applies. Id. We comment on one aspect of Carter’s Remmer claim, but we conclude that AEDPA forecloses that claim.
6 Carter arguably procedurally defaulted his Remmer claim. A pris-
oner must argue all operative facts and legal principles to the state courts, Nichols v. Wiersma, 108 F.4th 545, 560 (7th Cir. 2024), but Carter did not mention Remmer to the state courts. Before us, though, the state waived its procedural default defense on this claim. See Oral Argument at 25:40– 25:54. No. 23-1266 13
A. Remmer as a constitutional holding Title 28 U.S.C. § 2254(a) requires that a state prisoner be “in custody in violation of the Constitution or laws or treaties of the United States.” Several Justices recently pointed out that it is not clear that Remmer establishes a constitutional right. Shoop v. Cunningham, 143 S. Ct. 37, 42 (2022) (Thomas, J., dissenting from denial of cert., joined by Alito and Gorsuch, JJ.) We take the time now to examine the question. In Remmer an outsider tried to bribe a juror, and though the FBI investigated, the trial court failed to alert the defend- ant and hold a hearing. 347 U.S. at 228. Remmer held that some forms of “communication, contact, or tampering” with the jury are presumptively prejudicial. Id. at 229. If they occur, the judge must hold a hearing to require that the government show why the intrusion was harmless. Id. So, the Court re- manded with directions to hold an evidentiary hearing. Id. at 230. Remmer does not use the words “Constitution,” “constitutional,” or “due process.” Neither did its follow-up case. Remmer v. United States, 350 U.S. 377 (1956). Nor did the only two cases that Remmer relies on for its rule. Remmer, 347 U.S. at 227 (first citing Mattox v. United States, 146 U.S. 140 (1892); and then citing Wheaton v. United States, 133 F.2d 522, 527 (8th Cir. 1943)). “One could just as naturally—perhaps more naturally—read Remmer as a case about new-trial motion practice under the Federal Rules of Criminal Procedure than as one about the requirements of constitutional due process.” Shoop, 143 S. Ct. at 42 (Thomas, J., dissenting from denial of cert.). Or it could be an evidentiary rule. Before the Federal Rules of Evidence were enacted, courts often adopted common-law rules and fashioned 14 No. 23-1266
exceptions. See, e.g., United States v. Benally, 546 F.3d 1230, 1233 (10th Cir. 2008); In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1155 (D.C. Cir. 2006) (Sentelle, J., concurring). Per some of the Justices, a “rigorous § 2254(d)(1) analysis, therefore, likely would take no account of Remmer at all.” Shoop, 143 S. Ct. at 42. To be sure, the Court has come close to describing Remmer as a constitutional holding. In Smith v. Phillips, the Court said, “[d]ue process means … a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such oc- currences when they happen. Such determinations may properly be made at a hearing like that ordered in Remmer and held in this case.” 455 U.S. 209, 217 (1982). Still, Phillips is not about what due process requires; it is about what due process does not require. The Court in Phillips reasoned that a post-trial hearing to examine jury intrusions, like that described in Remmer, is an adequate remedy in fed- eral court. Id. at 218. So, it is also an adequate remedy in state court because the Due Process Clause does not require more from state courts than federal courts. Id. Phillips did not hold that due process mandates Remmer’s holding on state courts, but rather that due process does not require state court hear- ings to exceed what is permissible in federal court, namely, a Remmer hearing. Id; see also Shoop, 143 S. Ct. at 42 n.5. (Thomas, J., dissenting from denial of cert.). In Dietz v. Bouldin, the Court hinted that Remmer could be a constitutional holding: “the guarantee of an impartial jury … is vital to the fair administration of justice. This Court’s precedents implementing this guarantee have noted various external influences that can taint a juror. E.g., Remmer v. United States … .” 579 U.S. 40, 48 (2016). Contextual clues in No. 23-1266 15
United States v. Olano suggest the same. 507 U.S. 725, 738–39 (1993). 7 But in Tanner v. United States, the Court deemed Rem- mer an exception “to the common-law rule” which prohibits “admitting juror testimony to impeach a verdict.” 483 U.S. 107, 117 (1987). The Supreme Court usually speaks in a different manner when it recognizes a constitutional right. In Anders, the Court described the right as the “constitutional requirement of sub- stantial equality and fair process.” 386 U.S. at 744. Consider too how the Court characterized the right to an impartial jury: “It is well settled that the Sixth and Fourteenth Amendments guarantee a defendant on trial for his life the right to an im- partial jury.” Ross v. Oklahoma, 487 U.S. 81, 85 (1988). And in Strickland v. Washington, it was “the constitutional require- ment of effective assistance.” 466 U.S. 668, 686 (1984). The language in these cases stands in contrast to how the Supreme Court has described Remmer, as well as Remmer it- self. The Court has not unequivocally held that Remmer is a constitutional holding, and Remmer offers no reason to sug- gest it is constitutionally compelled. AEDPA requires
7 But that section of Olano is dicta, as the Court said, “the issue here is
whether the alternates’ presence sufficed to establish remedial authority under Rule 52(b), not whether it violated the Sixth Amendment or Due Process Clause.” Id. at 739. The same is true with Rushen v. Spain, 464 U.S. 114 (1983) (per curiam). That case seemed to characterize Remmer as constitutional, but that oc- curred in dicta, as in Rushen the Court expressly said the trial error was not a constitutional holding. Id. at 117 n.2. Recall, AEDPA mandates that federal courts consider only holdings. Richter, 562 U.S. at 100; see also Shoop, 143 S. Ct. at 42 n.5 (Thomas, J., dis- senting from denial of cert.). 16 No. 23-1266
precision on this question; it is a prerequisite to habeas relief on all Remmer claims, after all. When asked about this issue at oral argument, the State agreed Remmer could be seen as not constitutionally com- pelled, but the State did not take a firm position. 8 Our circuit has held that Remmer is constitutional. See Hall v. Zenk, 692 F.3d 793, 803 (7th Cir. 2012); Oswald v. Bertrand, 374 F.3d 475, 477–78 (7th Cir. 2004). But our court’s law conflicts with that of another circuit on this question. See Crease v. McKune, 189 F.3d 1188, 1193 (10th Cir. 1999) (“We view the Remmer pre- sumption as a rule of federal criminal procedure, rather than a rule of federal constitutional law.”); see also United States v. Briscoe, No. 23-3109, 2025 WL 1013389, at *3 (10th Cir. Apr. 2, 2025). We see this as a question for resolution by the Supreme Court. B. The merits of Carter’s Remmer claim Under the applicable standard of review, we are to con- sider whether the bailiff’s communication with the jury was presumptively prejudicial under Remmer. We look to that case and precedent interpreting it from the Supreme Court and this court. As established above, Carter’s Remmer claim is governed by AEDPA’s deferential review. To succeed, Carter must show that the Wisconsin Court of Appeals decision—that his Remmer claim lacks arguable merit—was “contrary to, or in- volved an unreasonable application of, clearly established
8 Oral Argument at 24:33–24:59 (“[Remmer] doesn’t really articulate a
constitutional claim. It articulates a best practice in a way … I don’t want to say that the state of Wisconsin has a formal opinion on that at this point.”). No. 23-1266 17
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). We start with what the applicable “Federal law” (here, Remmer) “clearly establish[es].” Id. If no Supreme Court case “squarely addresses the issue” there is no “clearly estab- lished” law that controls. Wright v. Van Patten, 552 U.S. 120, 125 (2008) (per curiam) (reversing this court). That means we cannot extend a Supreme Court case’s rationale under the guise of applying existing law. White v. Woodall, 572 U.S. 415, 426 (2014). At bottom, “courts must reasonably apply the rules ‘squarely established’ by [the Supreme] Court’s hold- ings to the facts of each case.” Id. at 427 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). The Court has said, “[g]eneral legal principles can consti- tute clearly established law.” Andrew v. White, 145 S. Ct. 75, 82 (2025) (per curiam). Recall in Remmer that the juror was of- fered a bribe, resulting in an FBI investigation. 347 U.S. at 228. The Court concluded that the district court should have con- ducted a hearing because “tampering directly or indi- rectly[]with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial.” Id. at 229. But “obvious” is not a generally appli- cable legal principle. The only other window into the Court’s reasoning in Rem- mer is that a hearing is required “on information such as was received in this case.” Id. at 229–30 (emphasis added). This lan- guage suggests we should compare our case’s facts with Rem- mer’s. See Whitehead v. Cowan, 263 F.3d 708, 722–25 (7th Cir. 2001) (contrasting Remmer’s facts); see also Hall, 692 F.3d at 804. So, in keeping with these rules, we consider whether Carter’s case presents an analogy to the facts in Remmer but without 18 No. 23-1266
requiring “an identical fact pattern.” Woodall, 572 U.S. at 427 (quoting Panetti v. Quarterman, 551 U.S. 930, 953 (2007)). Courts have gone to great lengths to craft an applicable rule for when Remmer’s presumption of prejudice applies. See Hall, 692 F.3d at 803 (“[T]here has been much debate” on “when the Remmer presumption ought to be employed.”). To extract a general rule from Remmer would frame its holding at a “high level of generality,” something the Court has pro- scribed. Nevada v. Jackson, 569 U.S. 505, 512 (2013). But at the same time, “an identical fact pattern” is not required “before a legal rule must be applied.” Woodall, 572 U.S. at 426. Complicating our work is that the Supreme Court has not decided a Remmer “presumption of prejudice” case since that decision in 1954. Left with just Remmer’s terse reasoning and the Court’s habeas cases, lawful Remmer claims under AEDPA appear to succeed only with facts similar to those in Remmer. As has been observed, “as to the Supreme Court’s own prec- edents, the facts of Remmer itself remain the only source of guidance as to the showing necessary to mandate a Remmer hearing.” Cunningham v. Shoop, 23 F.4th 636, 681 (6th Cir. 2022) (Kethledge, J., concurring in the judgment in part and dissenting in part), cert. denied, 143 S. Ct. 37 (2022). With these strictures, we evaluate the merits of Carter’s Remmer claim, considering the nature of the alleged violation, Supreme Court precedent, and our court’s law. First, the bailiff’s response to the jury—a procedural instruction—did not introduce new evidence or suggest for- bidden inferences. As the state trial judge observed, if the question had been presented to her before the bailiff an- swered the jury, the judge would have given the same No. 23-1266 19
instruction. And unlike the bribe and FBI investigation in Remmer, the communication likely did not engender a feeling that the bailiff was “looking over” the juror’s “shoulder,” nor was it “bound to impress the juror … unduly.” Remmer, 347 U.S. at 229. Further, two critical facts for the Court in Remmer were the attempted bribery and an FBI investigation. Id. at 228. Nothing like that occurred here. “‘[I]f a habeas court must extend a rationale before it can apply to the facts at hand,’ then by definition the rationale was not ‘clearly established at the time of the state-court decision.’” Woodall, 572 U.S. at 426 (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)). The bailiff’s communication with the jury here is not the kind of intrusion that Remmer “clearly established” is presumptively prejudicial. Second, we consider Supreme Court precedent interpret- ing Remmer. While Smith v. Phillips comes to mind, the Court in Williams v. Taylor emphasized that “clearly established” un- der AEDPA refers only to holdings. 529 U.S. 362, 412 (2000). In Phillips, the state trial court held a hearing, so the Court was not asked to decide whether the jury intrusion there required a hearing. 455 U.S. at 213. So, to apply Phillips would be to rely on what the Court has forbidden—something outside a case’s “governing legal principle.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003). For context, at times this court has applied the facts of Phillips, but at other times has not. Compare Hall, 692 F.3d at 804 (contrasting the facts in Phillips), with Whitehead, 263 F.3d at 722–23, 725 (citing Phillips but not comparing its facts). In any event, in Phillips, “the potential bias of a juror was wholly unrelated to the Phillips trial itself, but rather involved a rela- tionship between a juror and the prosecutor’s office.” Hall, 692 U.S. at 804. Here, the intrusion, a question from the jury about the unanimity requirement, related to the trial itself. So even 20 No. 23-1266
if Phillips could be applied, its “squarely established” holding does not extend to the facts at hand. Woodall, 572 U.S. at 427. Third, we turn to our circuit’s precedent. But the Supreme Court has delineated what can be considered. Cases decided on direct appeal cannot be applied. Glebe v. Frost, 574 U.S. 21, 24 (2014) (per curiam). Nor can we apply pre-AEDPA cases. Parker v. Matthews, 567 U.S. 37, 49 (2012) (per curiam). We may look only “to circuit precedent to ascertain whether it has al- ready held that the particular point in issue is clearly estab- lished by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam). Said differently: if this court has held that a general principle is “clearly established” by the Supreme Court, we can consider it. But even then, the Court has encouraged circuits to look critically at such prece- dent if it “bears scant resemblance” to the rule laid down by the Court. Parker, 567 U.S. at 49. Given these requirements, this court’s principal case is Hall, 692 F.3d at 804. There, a jury was empaneled for Hall’s murder trial. Id. at 796. A juror’s son was incarcerated at the same facility as the defendant. Id. During the trial, that juror “overheard his wife tell another family member that their son and several other members of the cell block no longer believed Hall to be innocent.” Id. The jury found the defendant guilty, and the judge denied Hall’s motion to depose all members of the jury. Id. At a later evidentiary hearing about the jury intru- sion, the state court did not apply Remmer’s presumption of prejudice. Id. at 796–97. On federal habeas review, the defend- ant alleged the judge’s refusal to do so violated Remmer. Id. at 797. Hall set a rule for our circuit. “[W]hat seems to be ‘clearly established’ is that federal constitutional law maintains a No. 23-1266 21
presumption of prejudice in at least some intrusion cases.” Id. at 803 (quoting 28 U.S.C. § 2254(d)(1)). If the jury intrusion “had a great impact on an average juror’s deliberation,” then the contact is presumptively prejudicial, and a hearing is nec- essary. Id. at 804. 9 Hall’s rule sets what Remmer clearly estab- lishes. We then ask whether the Wisconsin Court of Appeals un- reasonably applied Hall’s rule to Carter’s case under 28 U.S.C. § 2254(d)(1). See Andrew, 145 S. Ct. at 83. That application must have been so erroneous that “there is no possibility fair- minded jurists could disagree that the state court’s decision conflicts with this Court’s precedents.” Nevada, 569 U.S. at 508–09 (quoting Richter, 562 U.S. at 102). “If this standard is difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102. We conclude that a fairminded jurist could agree that the bailiff’s response to the jury did not have a “great impact on an average juror’s deliberation.” The state trial court tran- script relays that the bailiff gave a procedural instruction and
9 Another case merits brief discussion. This court held in Wisehart v.
Davis that Remmer “clearly establishes” that “the extraneous communica- tion to the juror must be of a character that creates a reasonable suspicion that further inquiry is necessary to determine whether the defendant was deprived of his right to an impartial jury.” 408 F.3d 321, 326 (7th Cir. 2005) (emphasis added). Wisehart did not define the phrase “of a character.” It could mean an intrusion that “contaminate[s] the jury’s deliberations.” Id. The Supreme Court has directed the circuits to raise their eyebrows at caselaw that de- rives a “highly generalized standard” that “bear[s] scant resemblance” to the Court’s precedent. Parker, 567 U.S. at 49. Following the Court’s direc- tion, the phrase “of a character” is too general to apply here. 22 No. 23-1266
did not try to convince or command how the jury should vote. Indeed, the state trial judge said she would have given the same instruction. Nothing in the bailiff’s communication likely prejudiced the defendant, unlike the extrinsic commu- nications about the defendant’s innocence that the juror over- heard in Hall. And “[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case de- terminations.” Id. at 101 (quoting Yarborough, 541 U.S. at 664). Hall’s “great impact” rule is broad, so we give the Wisconsin Court of Appeals extra deference in its application of Remmer to Carter’s case. Remmer has been applied by our court in other cases post- AEDPA. See, e.g., Brown v. Finnan, 598 F.3d 416, 423–24 (7th Cir. 2010); Moore v. Knight, 368 F.3d 936, 943 (7th Cir. 2004); Oswald, 374 F.3d at 477–78; Whitehead, 263 F.3d at 722–25. But we may not use our caselaw to “refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] Court has not announced.” Marshall, 569 U.S. at 64. Nor may we “canvass circuit decisions to determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to [the Su- preme] Court, be accepted as correct.” Id. Last, the certificate of appealability suggested the parties look to United States ex rel. Tobe v. Bensinger, 492 F.2d 232, 238–39 (7th Cir. 1974). Tobe precedes AEDPA, and the Supreme Court has admonished courts for applying pre-AEDPA circuit precedent. Parker, 567 U.S. at 49. Carter counters that the effect of the bailiff’s answer on the jury is unknown because the state trial judge never ques- tioned the jurors. That may be. But Remmer has been inter- preted to require federal courts considering habeas relief to No. 23-1266 23
make a threshold decision whether the defendant has shown he was prejudiced by an intrusion upon the jury without knowing the true impact. Courts often engage in such thresh- old reasoning, such as on evidentiary questions. See FED. R. EVID. 104(a). In sum, Carter’s Remmer claim cannot overcome AEDPA’s exacting limitations. 10 Remmer does not clearly establish that the bailiff’s communication with the jury here was presump- tively prejudicial. Nor was the Wisconsin Court of Appeals unreasonable in applying Hall’s rule. IV. Conclusion The Wisconsin Court of Appeals ensured Carter’s appeal was “resolved in a way that is related to the merit of that ap- peal” by reviewing the extensive record, reading three briefs, and independently concluding his claim lacked arguable merit. Robbins, 528 U.S. at 278–79. So his Anders claim fails. Carter’s Remmer claim also fails to clear the stringent require- ments of AEDPA. For these reasons, we AFFIRM.
10 Questions (1), (2), and (4) of the certificate of appealability are re-
solved here. We assume without deciding question (3), and we need not reach question (5) because we resolve the Remmer claim under AEDPA.