source: Caselaw Access Project

author: MURGUIA, Circuit Judge: RAWLINSON, Circuit Judge,

license: Public Domain

text:
    Manuel TARANGO, Jr., Petitioner-Appellant, v. E. K. MCDANIEL; Nevada Attorney General, Respondents-Appellees.
    No. 13-17071
    United States Court of Appeals, Ninth Circuit,
    Argued and Submitted December 12, 2014, San Francisco, California
    Filed March 3, 2016
    Amended September 16, 2016

      Ryan Norwood (argued), Assistant Federal Public Defender; Rene Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellant.
    Victor-Hugo Schulze, II (argued), Senior Deputy Attorney General; Lawrence VanDyke, Solicitor General; Adam Paul Laxalt, Attorney General; Office of the Attorney General, Las Vegas, Nevada; for Respondents-Appellees.
    Before: RAYMOND C. FISHER, JOHNNIE B. RAWLINSON, and MARY H. MURGUIA Circuit Judges.
    Dissent by Judge RAWLINSON
   OPINION

MURGUIA, Circuit Judge:

Petitioner Manuel Tarango, Jr. appeals the district court’s denial of his petition for a writ of habeas . corpus. He claims violation of his due process right to a fair and impartial jury, where a police vehicle followed Juror No. 2, a known holdout against a guilty verdict, for approximately seven miles, on the second day of deliberations, in a highly publicized trial involving multiple police victims. Tarango argues that the Nevada Supreme Court’s decision upholding his convictions “was contrary to, or involved an unreasonable application of, clearly established federal law,” see 28 U.S.C. § 2254(d)(1), because the court failed to consider whether the contact between the juror and the police vehicle prejudiced the jury’s verdict.

We hold that the Nevada Supreme Court’s decision was contrary to Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892), because the court improperly- limited its inquiry to whether the external contact amounted to a “communication” and did not investigate the prejudicial effect of the police tail. We therefore review de novo the question whether the extrinsic contact could have influenced the verdict and prejudiced Tarango. Because the trial court prevented Tarango from offering certain evidence to demonstrate prejudice, we remand for an evidentiary hearing and further fact finding.

BACKGROUND

On December 5, 1999, a rock band of off-duty Las Vegas police officers,. Metro Mike’s Pigs in a Blanket, was performing at a local bar called Mr. D’s. The bar was filled with off-duty police officers. A group of masked men entered the bar announcing a robbery, and a shoot-out ensued. Several patrons were shot, one robber was shot and killed, and one police officer, Officer Dennis Devitte, was shot several times. The surviving robbers escaped the scene and, six years later, Tarango was brought to trial on seven felony counts. The 2005 trial received considerable local media attention, and numerous Las Vegas Metro police officers attended as both witnesses and spectators.

After the jury began its deliberations, on November 1, 2005, the foreperson sent a note to the trial judge indicating that the jury had “reached a stalemate” because of a “problem juror” who had “made it very clear he does not want to be part of [the] process [and] is refusing to discuss or interact with the other jurors.” The “problem juror” separately wrote to the judge indicating that he had “doubt of which [he] feel[s] is beyond the limit of reasonable doubt,” and that deliberations were “not curing [his] doubt.” In his note, the “problem” juror identified himself as Juror No. 2.

Over Tarango’s objection, the judge advised the jury to continue deliberating. The next day, November 2nd, the jury returned a verdict finding Tarango guilty of all seven felony counts as charged: burglary with the use of a deadly weapon, attempted robbery with the use of a deadly weapon, conspiracy to commit robbery with the use of a deadly weapon, three counts of battery with the use of a deadly weapon, and attempted murder with the use of a deadly weapon- — all in violation of Nevada state law.

On November 3rd, the Las Vegas Review-Journal reported the guilty verdict in an article titled Man Convicted in 1999 Case. The article referenced “a juror who spoke to the Review-Journal.” Discussing the jury’s deliberation process, the interviewed juror mentioned the hold-out juror: “the case was close to a hung jury because one juror seemed.unwilling to convict following nearly two days of deliberations.”

On November 4th, prompted by the previous day’s newspaper article, Juror No. 2 wrote a letter to the court referencing the article:

I am the one Juror mentioned in the article.... I am also the Juror that wrote you the note during deliberations. It read: “I have doubt beyond the limit of what I consider reasonable doubt.” I also stated, “I did not believe further deliberations would cure that doubt.” Further deliberations in fact, did not cure my doubt.
However, when returning to re-deliberate Wednesday November 2nd from the Henderson area, a Metro squad car followed me northbound on 1-95 and into the downtown area.
I found that action unnerving.
I realize the State has much time and money invested in this case. There were [sic] no alternate Juror. I concluded Metro somehow knew who I was and knew of my unwillingness to convict. I have never been in trouble with the law. Therefore, I relinquished my vote under duress. I only ask, within the law, please show [Tarango] leniency.

One week later, on November 11th, Juror No. 2 emailed Tarango’s trial attorney, Marc Saggese, and attached a copy of his “Letter to the Judge.” The juror told Sag-gese that he felt “compelled to notify” Saggese of the letter. Saggese promptly filed a motion to dismiss all charges with prejudice or, alternatively, to grant a new trial on the ground of juror misconduct, arguing that Juror No. 2’s communication indicated that the deliberation process had been tampered with in violation of Taran-go’s right to due process. • Under- Nevada law, juror misconduct refers to two categories of conduct: (1) intrinsic misconduct, that is, “conduct by jurors contrary to them instructions or oaths;” and (2) extrinsic misconduct, or “attempts' by third parties to influence the jury process.” Meyer v. State, 119 Nev. 554, 80 P.3d 447, 453 (2003). Tarango alleged both forms of misconduct, arguing that..(1) Juror No. 2 changed his vote, under pressure, rather than based, on- admissible evidence of Tar-ango’s guilt, because of (2) an improper third party influence.

In support of the motion, Saggese submitted a declaration indicating that, after the trial court-read the juror notes into the record and while deliberations were ongoing, Saggese overheard Deputy District Attorney Marc DiGiacomo report to Detective James Vacarro over the phone that one juror, Juror No. 2,'was holding out. Saggese thus indirectly corroborated Juror No. 2’s stated belief that he was being targeted as a hold-out juror by introducing evidence that members of the Las Vegas police department both knew that Juror No. 2 favored acquittal and had knowledge of Juror No. 2’s identity.

The trial court held a full hearing on Tarango’s motion the following month. Juror No. 2, Defense Attorney Saggese, Detective Vacarro, and Deputy D.A. DiGiaco-mo were all called to testify regarding their knowledge of the alleged events and communications in question. At the hearing, the court limited the questioning of Juror No. 2 pursuant to a provision of the Nevada Code of Evidence, Nev. Rev. Stat. § 50.065, which prohibits the admission for any purpose of testimony, affidavits, or evidence of any statement by a juror indicating an effect on the jury’s deliberative process. The court also relied on the Nevada Supreme Court case of Meyer v. State, which provides that “[u]pon an inquiry into the validity of a verdict ..., a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations, or to the effect of anything upon that or any other juror’s mind.” 80 P.3d at 454 (quoting Fed. R. Evid. 606(b)). The trial court ultimately conducted all questioning of Juror No. 2 itself. Juror No. 2 testified as follows:

[Right after getting on the freeway,] I was in the center lane [of US-95]. I noticed a Metro squad car behind me; fairly close behind me.... He was close enough I couldn’t see his front-wheels or bumper. And, I looked down and I was not exceeding the speed limit.
I signaled and got over to the far right lane anticipating being pulled over and he stayed tight behind me.
I maintained under the speed limit anticipating being pulled over. A couple minutes and he never lit up, he never indicated that he was ... going to pull me over. So I just maintained right lane position under the speed limit. This continued on.
[At Eastern Avenue] there was a lot of traffic entering the freeway.... [T]here was so many cars trying to merge into the freeway that the Metropolitan squad car actually pulled up closer to prevent anyone from pulling in between our vehicles.
And as soon as the ... exit to Las Vegas Boulevard came, I even slowed down under 50, and that’s a long exit there. It’s, um, a quarter mile, half a mile, and even at that, he maintained position.
And he’s not pulling me over. He’s not ... giving me a citation for nothing. He followed me down the hill, and at the stoplight for Lás Vegas Boulevard.... He followed me, still tight. And there’s several stop lights, something, Stewart, and then Carson is where the juror parking garage is. And we did get a red light there. He was still behind me. I took a right to enter the ... jurors parking lot. That’s when he relieved me from the escort or whatever he was doing. That’s when he left me alone.

When questioned, Juror No. 2 indicated that he could not tell whether the driver of the vehicle was male or female, and he could not report the squad car number. However, Juror No. 2 averred that the car behind him was “a Metropolitan black and white vehicle.” When questioned a second time, Juror No. 2 reiterated that the car remained “consistently” tight behind him for the duration of his commute to the courthouse — “[c]lose enough that [he] couldn’t see the officer’s bumper.”

At the end of the hearing, the court orally denied Tarango’s motion to dismiss or to grant a new trial. The trial court did not discredit Juror No. 2’s testimony, and made one factual finding that Juror No. 2 “was followed closely, tightly, however you want to state it from Tropicana on US-95 to Las Vegas Boulevard and Carson.” The court went on to reach the following legal conclusion:

I don’t think there’s any evidence of juror misconduct. There were no attempts to influence the jury. There’s no outside influence on this particular juror. There’s no communication or contact. The alleged conduct is ambiguous, it’s vague and nonspecific in content. I’m required to consider this extrinsic influence in light of the trial as a whole, and consider the weight of the evidence against Mr. Tarango and with that, and based on the [Meyer] decision, and the reasonable person test that I’m required to apply. I don’t think that Mr. Tarango has met his burden. Therefore, the motion is denied.

Weeks later, at a televised proceeding on February 8, 2006, the trial court denied Tarango’s motion to reconsider on the basis of jury misconduct and entered judgment against him. The trial court sentenced Tarango to a 22-58 year term of imprisonment. Tarango promptly appealed the denial.

In September 2007, the Nevada Supreme Court affirmed the state trial court’s denial of Tarango’s motion for a new trial. Tarango v. State, 123 Nev. 864, 210 P.3d 773 (2007). The Nevada Supreme Court stated the relevant test as follows: “For a defendant to prevail on a motion for a new trial based on misconduct, the defendant must present admissible evidence sufficieiit to establish (1) the occurrence of misconduct, and (2) a showing that the misconduct was prejudicial.” Id., slip op. at 2 (citing Meyer, 80 P.3d at 455).

The Nevada Supreme Court first concluded that Juror No. 2’s letters to the trial court were properly deemed inadmissible to prove that Juror No. 2 had voted guilty in violation of the jury instructions or contrary to his oath as a juror, reasoning that “for misconduct to be proved it ‘must be based on objective facts and not the state of mind or deliberative process of the jury.’ ” Id. slip op. at 6 (quoting Meyer, 80 P.3d at 454). Absent Juror No. 2’s letters, the Nevada Supreme Court concluded that the “testimony of [Defense Attorney Saggese, Detective Vacarro, and Deputy D.A. DiGiacomo] was insufficient to show by objective facts that [Juror No. 2] committed misconduct.” Id. The Nevada Supreme Court held that Tarango had thus failed to show by admissible evidence that Juror No. 2 had committed misconduct. Id.

The Nevada Supreme Court further held that there was no evidence of an improper external influence on Juror No. 2. Although the Nevada Supreme Court assumed “arguendo that [Juror, No. 2] was followed by a marked police car,” and, observed that “any unauthorized communication between law enforcement and a juror about a matter pending before a jury may be ‘presumptively prejudicial,’ ” the court concluded that “[Juror No. 2] failed to show by objective facts that there was an improper external communication between him and the police.” Id. slip op. at 6-7. The Nevada Supreme Court explained that “it is not clear whether being followed by a marked car qualifies as a communication at all. It is even more dubious as to whether such a ‘communication’ was about a matter pending before the jury.” Id. slip op. at 7. 'In other words, having found that no “communication” had occurred, the Nevada Supreme Court determined that the alleged influence of the non-communicative contact was “too speculative” to sustain Tarango’s motion for a new trial and did not reach the second prong of the misconduct inquiry — whether the contact was prejudicial. Id.

Following state habeas proceedings, Tarango timely filed his federal habeas petition on .March 15, 2010. The federal district court for the District of Nevada was “tempted to say that the fact Juror 2 rendered his verdict based not upon the law and evidence, but because of his perception of a threat, is dispositive.” However, without citing authority, the district court concluded that “Supreme Court case law is clear that objective proof of external contact is required.” It further concluded that-the state court did not err in concluding that no external contact had occurred, although the. court found that determination “debatable.”'The district court therefore dismissed Tarango’s petition in September 2013, upholding as reasonable the state court’s determination that Tarango had failed to show any improper external contact.

On October 16, 2013, the district court granted Tarango a Certificate of Appeala-bility" as to Ground One of his amended petition, and Tarango filed a Notice of Appeal the same day. Ground One reads as follows:

Tarango was convicted because one of the jurors believed that the State was trying to intimidate him, and not because he believed Tarango was guilty. As such, Tarango is incarcerated in violation of his right to a Fair Trial, an Impartial Jury, and Due Process under the 6th and 14th Amendments of the United States Constitution.

Tarango raises only the certified issue in his appeal before us.

DISCUSSION

I.

We review de novo a district court’s denial of a habeas corpus petition. Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014). But where, as here, a state court has adjudicated a claim on the merits, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) compels us to accord significant deference to the underlying state court decision. See 28 U.S.C. § 2254(d)(1)—(2). This court may grant relief only when the state court’s adjudication of that claim either (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) was “based on an unreasonable determination of the facts in light , of the evidence presented at the State Court proceeding.” Id.

Where a.state court fails to apply the clearly established federal law, applying an incorrect standard in reaching its decision, “the state court’s adjudication [is] contrary to clearly established law.” Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376, 1390, 182 L.Ed.2d 398 (2012) (holding that state court adjudication was contrary to clearly established federal law because it failed to apply Strickland to an ineffeetive-assistance-of-counsel claim). And in that circumstance, federal habeas courts “can determine the principles necessary to grant relief.” Id. (citing Panetti v. Quarterman, 551 U.S. 930, 948, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007)). In other words, a state court’s failure to apply the' proper standard under clearly established federal law “allows federal-court review ... without deference to the state court’s decision” and “unencumbered by the deference AEDPA normally requires.” Panetti, 551 U.S. at 948, 127 S.Ct. 2842; see also Castellanos v. Small, 766 F.3d 1137, 1146 (9th Cir. 2014) (“If the state court applies a legal standard .that contradicts clearly established federal law, we review de novo the applicant’s claims, applying the correct legal standard to determine whether the applicant is entitled to relief.” (citing Cooperwood v. Cambra, 245 F.3d 1042, 1047 (9th Cir. 2001))).

In conducting this review, we look to the “last reasoned decision” by a state court addressing the issue at hand. Miles v. Ryan, 713 F.3d 477, 486 (9th Cir. 2012) (citing Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)). In this case, we look to the Nevada Supreme Court’s September 2007 decision affirming the state trial court’s judgment on direct appeal.

II.

The Nevada Supreme Court, after assuming that Juror No, 2 was followed by a police car, decided that such contact did not implicate Tarango’s right to due process because it did not amount to a “communication,” much less a communication “about a matter pending before the jury.” The court declined to consider whether the police tail could have prejudiced the verdict, We hold that the Nevada Supreme Court violated clearly established Supreme Court case law, first by limiting its inquiry to whether the contact amounted to a “communication ... about a matter pending before the jury” and, second, by failing to examine the potential impact of the non-communicative contact on Juror No. 2’s verdict.

A.

In criminal trials, well-entrenched Supreme Court authority “absolutely” forbids “external causes tending to disturb the [jury’s] exercise of deliberate and unbiased judgment ... at least until their harmlessness is made to appear.” Mattox v. United States, 146 U.S. 140, 149-50, 13 S.Ct. 50, 36 L.Ed. 917 (1892). We have held that Mattox established a bright-line rule: any external contact with a juror is subject to a presumption that the contact prejudiced the jury’s verdict, but the government may overcome that presumption by showing that the contact was harmless. Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691, 696 (9th Cir. 2004) (citing United States v. Armstrong, 654 F.2d 1328, 1331-33 (9th Cir. 1981)).

Clearly established federal law provides that any unauthorized “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.” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954) (emphasis added). However, clearly established federal law also compels a criminal trial court to consider the prejudicial effect of any external contact that has a “tendency” to influence the verdict, irrespective of whether it is about the matter pending before the jury. Mattox, 146 U.S. at 150-51, 13 S.Ct. 50. Moreover, an external contact need not amount to a “communication” to trigger some judicial inquiry into possible prejudice. See Smith v. Phillips, 455 U.S. 209, 212-15, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (requiring judicial inquiry into possible prejudice arising from a juror’s job application in the office of the prosecutor trying the case); Mattox, 146 U.S. at 150, 13 S.Ct. 50 (recognizing the prejudicial potential of “the reading of newspapers”).

B.

The Supreme Court has not established a bright-line test for determining what constitutes a possibly prejudicial “external” influence on a jury. The Court has devoted more recent attention to clarifying what “falls on the ‘internal’ side of the line.” Warger v. Shauers, — U.S. -, 135 S.Ct. 521, 529, 190 L.Ed.2d 422 (2014) (holding that a juror’s dishonesty during voir dire is internal to the deliberative process and not admissible to impeach a verdict); see also Tanner v. United States, 483 U.S. 107, 118-25, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987) (holding that jurors’ consumption of drugs and alcohol during trial is internal to the deliberative process and not admissible to impeach a verdict). It is clearly established that a juror’s physical or mental incapacity, substance abuse, and dishonesty during voir dire all amount to internal — not external — influences on a jury’s verdict. Tanner, 483 U.S. at 118-25, 107 S.Ct. 2739; Warger, 135 S.Ct. at 529. On the other end of the spectrum, the Court long ago explained that an “extraneous influence” would include “something which did not essentially inhere in the verdict, — an overt act, open to the knowledge of all the jury, and not alone within the personal consciousness of one.” Mattox, 146 U.S. at 149, 13 S.Ct. 50 (quoting Perry v. Bailey, 12 Kan. 539, 545 (1874)).

In more recent decisions interpreting the Mattox rule, the Court has clarified that an external contact need not be intentional, Gold v. United States, 352 U.S. 985, 77 S.Ct. 378, 1 L.Ed.2d 360 (1957) (granting a new trial where the FBI approached jurors about a different but related case, even though “the intrusion was unintentional”), nor verbal, Smith, 455 U.S. at 212-15, 221, 102 S.Ct. 940; see also Mattox, 146 U.S. at 150, 13 S.Ct. 50 (noting that the presence of an officer in the jury room during the deliberations would be “fatal to the verdict”). Rather, an impermissible external influence can arise where, for example, a juror is shown to have a relationship with the office of the prosecutor trying the case. Smith, 455 U.S. at 212, 102 S.Ct. 940. In addition, an external contact need only have influenced one juror, because a defendant is “entitled to be tried by 12 ... impartial and unprejudiced jurors.” Parker v. Gladden, 385 U.S. 363, 366, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966).

The Supreme Court has identified an “extraneous influence” requiring judicial inquiry into prejudice in cases where the jury heard and read information about the defendant’s propensity for murder, which was not admitted into evidence, Mattox, 146 U.S. at 150-51, 13 S.Ct. 50; where members of a jury overheard the bailiff make disparaging' comments about the defendant, Parker, 385 U.S. at 363-65, 87 S.Ct. 468; where a juror was contacted by an FBI agent after being offered a bribe to acquit the defendant, Remmer, 347 U.S. at 228-30, 74 S.Ct. 450; and where a juror had submitted an application for employment at the office of the prosecutor trying the case, Smith, 455 U.S. at 212, 216-17, 102 S.Ct. 940.

C.

Mattox requires a trial court to examine possible prejudice when it is confronted with evidence of an external contact that has a “tendency” to be “injurious to the defendant.” Mattox, 146 U.S. at 150, 13 S.Ct. 50. Thus, an external contact with a juror need only raise a credible risk of influencing the verdict to be deemed possibly prejudicial. Mattox and its progeny further establish that undue contact with a juror by a government officer almost categorically risks influencing the verdict. Indeed, Mattox observed that the mere presence of a court officer or bailiff during the jury’s deliberations would “absolutely vitiate the verdict ... without regard to whether any improper influences were actually exerted over the jury or not.” Mattox, 146 U.S. at 150, 13 S.Ct. 50 (emphasis added); see also Smith, 455 U.S. at 221, 102 S.Ct. 940 (holding that a juror’s pending job application with the prosecutor’s office required a post-trial hearing on juror bias); Parker, 385 U.S. at 365, 87 S.Ct. 468 (“[T]he official character of the bailiff — as an officer of the court as well as the State — beyond question carries great weight with a jury....”); Remmer, 347 U.S. at 229, 74 S.Ct. 450 (“The sending of an FBI agent in the midst of a trial to investigate a juror as to his conduct is bound to impress the juror and is very apt to do so unduly.”).

To be sure, “it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” Smith, 455 U.S. at 217, 102 S.Ct. 940. “[D]ue process does not require a new trial every time a juror has been placed in a compromising situation.” Id. Threadbare or speculative allegations, or allegations involving “prosaic kinds of jury misconduct” do not trigger a presumption of prejudice. United States v. Dutkel, 192 F.3d 893, 894-85 (9th Cir. 1999); see also Xiong v. Felker, 681 F.3d 1067, 1077 (9th Cir. 2012) (noting that the Supreme Court jurisprudence regarding juror misconduct “all involved ... significant, and in some cases deliberate interference with the deliberation process”).

Mindful of this reality, and given the need to preserve the finality of a jury’s verdict, courts universally prohibit jurors from impeaching their own verdicts through evidence of their internal deliberative process. See, e.g., Tanner, 483 U.S. at 117-20, 107 S.Ct. 2739. However, regardless of the forms of evidence admissible to demonstrate that a contact occurred, see United States v. Rutherford, 371 F.3d 634, 644-45 (9th Cir. 2004), the Supreme Court has unequivocally and repeatedly held that due process requires a trial judge to endeavor to “determine the effect” of occurrences tending to prejudice the jury when they happen. Smith, 455 U.S. at 217, 102 S.Ct. 940; see also Parker, 385 U.S. at 365, 87 S.Ct. 468; Remmer, 347 U.S. at 229-30, 74 S.Ct. 450; Mattox, 146 U.S. at 150-51, 13 S.Ct. 50.

D.

Once a defendant shows an external occurrence having a tendency toward prejudice, federal law clearly requires a trial court to investigate the harmlessness or actual prejudice of the occurrence. Mattox, 146 U.S. at 150, 13 S.Ct. 50; Smith, 455 U.S. at 215, 102 S.Ct. 940 (“This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.”). The Mattox Court categorically mandated that “possibly prejudicial” external contacts “invalidate the verdict, at least unless their harmlessness is made to appear.” Mattox, 146 U.S. at 150, 13 S.Ct. 50. This is required even if, as noted above, the contact did not constitute a communication nor concern a matter pending before the jury. See Smith, 455 U.S. at 215, 102 S.Ct. 940; Mattox, 146 U.S. at 150, 13 S.Ct. 50. Supreme Court case law also requires this, procedure irrespective of whether or not the court- knows “what actually transpired” and when, as the dissent highlights, the influence of that contact is speculative or uncertain. Remmer, 347 U.S. at 229, 74 S.Ct. 450; see also id. at 229-30, 74 S.Ct. 450 (mandating an eviden-tiary hearing where “information ... [about an,external contact] was received” by a trial court (emphasis added)). The Supreme Court has further held that prejudice is more probable where the record reflects that a jury could not agree as to the defendant’s guilt. Parker, 385 U.S. at 365, 87 S.Ct. 468 (citing as evidence of prejudice the fact that “the jurors deliberated for 26 hours, indicating a difference among them as to the guilt of petitioner”).

III.

In sum, the governing Supreme Court case law can be distilled as follows: Where a court receives information, Remmer, 347 U.S. at 229-30, 74 S.Ct., 450, about an unauthorized external contact between a juror and a government agent whose official position “carries great weight with a jury,” Parker, 385 U.S. at 365, 87 S.Ct. 468, that contact has á “tendency to ... influence” the verdict, and the trial court must presume the external contact prejudiced the defendant unless the government provides contrary evidence. Mattox, 146 U.S. at 150, 13 S.Ct. 50. This is true whether or not the contact was intentional, Gold, 352 U.S. at 985, 77 S.Ct. 378, whether or not the contact involved a verbal communication, Smith, 455 U.S. at 212, 102 S.Ct. 940; Mattox, 146 U.S. at 150, 13 S.Ct. 50, and whether or not the trial court or defendant “know[s] ... what actually transpired,” Remmer, 347 U.S. at 229, 74 S.Ct. 450. Once a potentially prej-udieial contact is alleged; the court should “determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with -all interested parties permitted to participate.” Id. at 230, 74 S.Ct. 450.

In this case, the Nevada Supreme Court assumed a contact — albeit not a “communication” — occurred. Our case law compels our conclusion that the contact in question had enough of a tendency to influence the jury’s verdict so as to necessitate judicial inquiry into prejudice. It was thus, error for the Nevada Supreme Court not to conduct a prejudice analysis merely because Juror No. 2’s police tail did not amount to a “communication .,. about a matter pending before the jury.”

A,

Assuming the truth of Juror No. 2’s testimony that he had been followed closely for seven miles on the second day of deliberations, the Nevada Supreme Court concluded that this conduct does not constitute a “communication.” On this basis, the Nevada Supreme Court then concluded that any influence was “too speculative” to warrant examination of prejudice. Thus, the Nevada Supreme Court declined to consider whether the conduct in fact influenced the verdict. As set forth above, this decision contravenes the standard clearly established by Supreme Court case law, under which a defendant need not prove a “communication ... about a matter pending before the jury,” or even a “communication” about an unrelated issue. See Smith, 455 U.S. at 212-15, 102 S.Ct. 940. Only a threshold showing of any “contact,” Remmer, 347 U.S. at 229, 74 S.Ct. 450, with a “tendency to adverse influence” is required to' prompt the court to investigate whether that contact was, in fact, prejudicial. Mattox, 146 U.S. at 150, 13 S.Ct. 50.

In light of this, we have little trouble concluding that the contact that the Nevada Supreme Court assumed occurred had enough potential for ‘prejudice to cross Mattox’s low threshold. Las Vegas police officers were deeply entangled in this case as victims,’ witnesses, investigators, and trial spectator's. Juror No, 2 testified that he had been closely followed’ by a marked police car for over sevén miles. See Parker, 385 U.S. at 365, 87 S.Ct. 468 (observing that government agents “carr[y] great weight with a jury”). Juror No. 2’s testimony indicates that the tail was maintained at a distance so close that Juror No. 2 could not see the police vehicle’s front wheels or bumper — if true, this conduct could have reasonably been understood as an attempt to intimidate. Moreover, Juror No. 2 was a known hold-out before the contact occurred. The Supreme Court has clearly established that the likelihood of possible prejudice increases where, as herd, the jury was previously deadlocked. See id.

B.

Thus, because the state court assumed that the contact did in fact occur and clearly established case law demonstrates that the contact had a tendency to affect the verdict, the court should have, at a minimum, investigated the prejudice or harmlessness of the contact even if at the time the court was unaware what exactly transpired or whether the impact was harmful. See Remmer, 347, U.S. at 229, 74 S.Ct. 450. The Nevada Supreme Court erred when it failed to do so.

Certainly, there may be circumstances in which a trial court finds a juror’s allegations of an external contact are unsupported by sufficient evidence, or in which the allegations are so implausible or incredible that they may be reasonably disregarded. There may also be cases in which an alleged external contact suggests paranoia or some underlying mental incompetence on the juror’s part. See Tanner, 483 U.S. at 118-19, 107 S.Ct. 2739. Under those circumstances, a court will not run afoul of the Constitution by refusing to consider whether the alleged contact affected the verdict. But this is not the case on the record before us.

Here, Juror- No. 2’s testimony was not discredited. To the contrary, crediting Juror No. 2’s testimony about a plausible external contact with a juror reluctant to convict, the Nevada Supreme Court declined to consider whether Juror No. 2 may have been prejudiced by the police tail. This contravened clearly established federal law. See Remmer, 347 U.S. at 229-30, 74 S.Ct. 450; Mattox, 146 U.S. at 150, 13 S.Ct. 50; Smith, 455 U.S. at 215, 102 S.Ct. 940.

IV.

Because the Nevada Supreme Court failed to consider the prejudicial impact of the contact, in violation of the law clearly established in Mattox, we may evaluate Tarango’s claim “without deference to the state court’s decision” and “unencumbered by the deference AEDPA normally requires.” Panetti, 551 U.S. at 948, 127 S.Ct. 2842; see also Castellanos, 766 F.3d at 1146. Reviewing de novo, we hold that the Nevada trial court improperly restricted the scope of the evidentiary hearing, effectively preventing Tarango from proving prejudice.

Under our precedent, where an external contact with the jury is shown, a trial court should determine whether the contact “raises a risk of influencing the verdict.” Caliendo, 365 F.3d at 697. Under such circumstances, prejudice is presumed and the government bears the burden of rebutting the presumption of prejudice. Id. To be sure, “certain chance contacts between witnesses and jury members — while passing in the hall or crowded together in an elevator — may be inevitable.” Id. at 696 (internal quotation marks and citation omitted). Therefore, if the contact involves a “prosaic” or “more common and less pernicious extraneous influence” than jury tampering, the court should determine whether the jury was “substantially swayed” by the contact. United States v. Henley, 238 F.3d 1111, 1115-16 (9th Cir, 2001). Under this circumstance, the defendant bears the burden of offering sufficient evidence to trigger a presumption of prejudice. See Caliendo, 365 F.3d at 696-97 (collecting authorities).

Although the anti-impeachment rule, codified as Federal Rule of Evidence 606(b)(1), prohibits juror testimony regarding “any juror’s mental processes concerning the verdict,” an exception to the rule permits juror testimony about whether “an outside influence was improperly brought to bear on any juror.” Fed. R. Evid. 606(b)(2)(B). This court has accordingly deemed admissible limited juror testimony to determine “the impact [of an outside influence] upon the juror, and whether or not [the outside influence] was prejudicial.” Remmer, 347 U.S. at 230, 74 S.Ct. 460; see also Rutherford, 371 F.3d at 643-45 (considering juror affidavits including claims that the jury felt intimidated by police officers’ glares); Caliendo, 365 F.3d at 699 (considering a juror’s testimony that the jury’s external communication with a police officer left them with a favorable opinion of the officer).

Unlike Nevada law, our precedent instructs, that a court should not limit juror testimony to “the existence of [an external contact].” Rutherford, 371 F.3d at 644 (quoting, the district court in that case). Rather, a court “should [also] consider the ‘effect of extraneous information or improper contacts on a juror’s state of mind,’ a juror’s ‘general fear and anxiety following’ such an incident, and any other thoughts a juror might have about the contacts or conduct at issue.” Id. (quoting United States v. Elias, 269 F.3d 1003, 1020 (9th Cir. 2001)). To that end, consistent with the anti-impeachment rule, this court permits the introduction of limited evidence of a juror’s state of mind to prove juror misconduct. A court may not, consistent with the anti-impeachment rule, admit testimony “regarding the affected juror’s mental processes in reaching the verdict.” Id. (internal quotation; marks omitted) (quoting Elias, 269 F.3d at 1020). However, “a juror’s testimony concerning his fear that individuals would retaliate against him if he voted to acquit (or convict) would be admissible, although his statement that he actually cast his vote one way or the other because of that fear would not.” Id.

Consistent with the principles announced in Rutherford, the district court should admit Juror No. 2’s. statements about how the police tail impacted him, although not how it impacted his deliberations and verdict. Therefore, Juror No. 2’s statement that he found the police tail “unnerving” is admissible, as are his statements that he “concluded Metro somehow knew who [he] was.” By contrast, Juror No. 2’s statements that he “relinquished his vote under duress,” and “still [has] doubt as an X-Juror” are not admissible.

V.

Because the scope of the evidentiary-hearing was narrowly circumscribed in the state trial court, the record before us is insufficient to determine whether the police tail influenced the verdict and preju-dicéd Tarango. We accordingly remand for the district court to hold an evidentiary hearing and apply the proper standard to determine whether the Nevada courts violated Tarango’s due process right to a fair and impartial jury by failing to adequately consider allegations of a prejudicial external influence on the jury. Following this court’s precedent, the district court should permit Tarango to offer limited evidence to show prejudice, see Caliendo, 365 F.3d at 696-97; Henley, 238 F.3d at 1115-16, including evidence of Juror No. 2’s “general fear and anxiety” following the police tail, see Rutherford, 371 F.3d at 644. VACATED AND REMANDED.

RAWLINSON, Circuit Judge,

dissenting:

I agree with the majority that if a member of the Las Vegas Metropolitan Police Department purposefully tail-gated á holdout juror on" the freeway for over sevén miles, because the juror was a holdout, such conduct might constitute external jury contact requiring further inquiry from the court. However, the Nevada Supreme Court determined that the juror’s assumption that the police officer targeted him as the holdout juror was speculative and unsubstantiated. As recognized by the majority, the Nevada Supreme Court expressly found that “there was no evidence of an improper external influence on Juror No. 2...” Majority Opinion, p. 944. We are bound by that factual determination absent a showing of unreasonableness. See 28 U.S.C. § 2254(d)(2)..

Appellant Manuel Tarango moved for a néw trial in the state court on the basis'of an “outside influence on the jury process.” Nevada Supreme Court Order, p. 1. According to the Nevada Supreme Court, the holdout juror conveyed that “he thought he had been followed by a police car.” Id., p. 2. (emphasis added). Because he felt intimidated, the juror changed his vote to guilty from not guilty.

The Nevada Supreme Court also noted that a recent newspaper article attributed the juror’s change of heart to the fact that “the other jurors were able to convince the holdout to convict_” Id., p. 4. After discussing the juror’s email to the trial judge and the juror’s follow-up letter, the Nevada Supreme Court concluded that the trial court properly excluded from consideration the juror’s emails to the trial judge and" defense counsel under N.R.S. 50.065(2) and the Nevada casé of Meyer v. State, 119 Nev. 554, 80 P.3d 447 (2003).

Nevada Revised Statute 50.065(2) provides:

Upon an inquiry into the validity of a verdict or indictment:
(a) A juror shall not testify concerning the effect of anything upon the juror’s or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.
(b) The affidavit or evidence of' any statement by a juror indicating an effect of this kind is inadmissible for any purpose.

In Meyer, the Nevada Supreme Court interpreted N.R.S. 50.065. Initially, the court referenced Federal Rule of Evidence 606(b), which it identified as an embodiment of “the long-standing common-law rule against admission of jury testimony to impeach a verdict ...” 80 P.3d at 454. & n.20 (citations and internal quotation marks omitted). The court also noted that N.R.S. 50.065 was “substantially the same” as the federal rule. Id. at n.20.

• Importantly, the Nevada Supreme Court made a distinction between juror misconduct and jury tampering. See id. at 454-55. Citing Supreme Court authority, the court identified' extraneous influence as jury tampering rather than juror misconduct. See id. at 455 (citing Remmer I; see also Remmer v. United States (Remmer II), 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435 (1956)).

Under this framework established by its precedent, the Nevada Supreme Court ruled that, after excluding the inadmissible evidence of the juror’s state of mind and of the deliberative process of the jury, there was insufficient evidence that the juror committed misconduct. See Nevada Supreme Court Order, p. 6.

The Nevada Supreme Court then turned to the asserted extraneous influence of a police car following the juror on the freeway. Admittedly, the court couched its analysis in terms of whether being followed by a police car constituted a “communication.” Id., p. 7. Nevertheless, the court ultimately concluded that “the alleged external influence in the case at bar was far too speculative to sustain a motion for a new trial.” Id, It is this conclusion that is reviewed under the. Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). '

In the last ten years, the United States Supreme Court has repeatedly rebuked this Circuit for attempting to make end-runs around the formidable obstacles to review contained in the AEDPA. As the majority acknowledges, habeas relief under the AEDPA is available only if the decision of the state court decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or ... was based on an unreasonable determination of the facts in light of the evidence presented at the State Court proceeding.” Majority Opinion, p. 945 (quoting 28 U.S.C. § 2254(d)(1)-(2)) (internal quotation marks omitted). Despite our recurring acknowledgment of this demanding standard, the Supreme Court has constantly chastised us for failing to take our professed acknowledgment to heart. In Glebe v. Frost, — U.S. -, 135 S.Ct. 429, 431, 190 L.Ed.2d 317 (2014), the Court observed that we acknowledged its ruling, “but tried to get past it.” Similarly, in Lopez v. Smith, — U.S. -, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014), the Court chided this Circuit for “attempt[ing] to evade [the] barrier” established by the AEDPA.

In Nevada v. Jackson, — U.S. ——, 133 S.Ct. 1990, 1993, 186 L.Ed.2d 62 (2013), the Court reversed us for relying on a decision that was “very far afield.” Unfortunately, the majority opinion again strays from the narrow confines of appropriate habeas review. Rather than reviewing the state court’s determination that proof of the alleged external influence was too speculative to constitute jury tampering, the majority grants habeas relief on the basis that the Nevada Supreme Court “improperly limited its inquiry to whether the external contact amounted to a communication,” contrary to Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892). Majority Opinion, p. 939-40 (internal quotation marks omitted). The majority then proceeds to “review de novo the question whether the extrinsic contact could have influenced the verdict and prejudiced Tarango.” Id. at 940. (emphasis added). Finally, the majority remands “for an evidentiary hearing and further fact finding.” Id.

There are three problems with the majority’s analysis. The first is that Mattox is “far afield” from the dispositive issue in this case. Jackson, 133 S.Ct. at 1993. The second is that the majority gives no deference to the decision of the Nevada Supreme Court, but rather engages in impermissible appellate factfinding. The third is that no Supreme Court case supports the majority’s conclusion. I will address each problem in turn.

1. Reliance on Mattox

Mattox, a case decided in 1892, is notable not only for its age and obvious predating of the AEDPA, but for its unremarkable holding. In Mattox, the United States Supreme Court addressed the denial of a motion for a new trial made by a defendant who was tried in federal court. See 146 U.S. at 141, 13 S.Ct. 50. The basis of the motion was the reading of an inflammatory newspaper article to jurors during their deliberations, as well as prejudicial comments made to jurors by the bailiff. See id. at 143-44, 151, 13 S.Ct. 50.

The Supreme Court observed that the affidavits submitted by the jurors were properly received because they refrained from articulating “what influence, if any, the communication of the bailiff and the reading of the newspaper had upon them, but confined their statements to what was said by the one [the bailiff] and read from the other [the newspaper].” Id. at 147, 13 S.Ct. 50. The Court emphasized that the extraneous influences were “open to the knowledge of all the jury, and not alone within the personal consciousness of one.” Id. at 149, 13 S.Ct. 50.

The Court held that “[pjrivate communications, possibly prejudicial, between jurors and third persons ... or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.” Id. at 150, 13 S.Ct. 50 (emphasis added). However, the Court also provided that any assertion of jury tampering was “subject to rebuttal by the prosecution; or contingent on proof indicating that a tampering really took place.” Id. at 149-50, 13 S.Ct. 50 (citations omitted) (emphasis added).

In Mattox, the existence of the extraneous influence was undisputed. The Supreme Court summarized the newspaper article as stating:

that the defendant had been tried for his life once before; that the evidence against him was claimed to be very strong by those who had heard all the testimony; that the argument for the prosecution was such that the defendant’s friends gave up all hope of any result but conviction; and that it was expected that the deliberations of the jury would not last an hour before they would return a verdict ...

Id. at 150-51, 13 S.Ct. 50.

The Court described the extraneous statement from the bailiff as informing the jury “that this was the third person Clyde Mattox had killed ...” Id. at 151, 13 S.Ct. 50.

Considering these facts, it is unremarkable that the Supreme Court held that the undisputed evidence of jury tampering warranted the grant of a new trial. However, nothing in the holding or reasoning of Mattox supports the majority’s disregard of the state court’s determination that Tar-ango’s evidence of jury tampering was speculative. The majority cites Mattox for the proposition that the trial court was compelled to “consider the prejudicial effect of any external contact that has a ‘tendency' to influence the verdict....” Majority Opinion, p. 946. However, the majority’s analysis conveniently omits the discussion in Mattox of the undisputed evidence that established, without challenge, the existence of the external contact. See Mattox, 146 U.S. at 150-51, 13 S.Ct. 50. The majority also elides the language in Mattox explaining that relief is “contingent on proof indicating that a tampering really took place.” Id. at 149-50, 13 S.Ct. 50 (citations omitted) (emphasis added). Unlike in Mattox, the evidence submitted by Tarango was disputed. Indeed, the prosecutor denied providing the identity of the holdout juror to anyone at the Police Department. Having reviewed the testimony presented to the trial court, the Nevada Supreme Court agreed with the trial court that the evidence of jury tampering was speculative in the absence of evidence that the identity of the holdout juror was provided to anyone in the Police Department. This determination was entirely consistent with the requirement in Mattox of proof that jury tampering actually occurred.

It cannot be fairly said that Mattox compels consideration of the prejudicial effect of speculative evidence of jury tampering. Rather, as with other factual determinations, the existence of jury tampering is a matter to be resolved by the trial court. See Uttecht v. Brown, 551 U.S. 1, 17, 20, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007) (explaining that “it is the trial court’s ruling that counts” due to its ability to perceive the demeanor of the witnesses). The trial court conducted an evidentiary hearing, and determined that the allegation of jury tampering was “vague” and “ambiguous” and “nonspecific.” The Nevada Supreme Court’s affirmance of the trial court’s determination that the evidence of jury tampering was “speculative” was not contrary to Mattox because the holding of Mattox is “far afield” from the facts of this case. Jackson, 133 S.Ct. at 1993.

The majority also relies on our decision in United States v. Armstrong, 654 F.2d 1328, 1331-33 (9th Cir. 1981). However, that case is more helpful to the dissent than to the majority. In that case, a juror reported that her husband had taken two calls using obscene language and directing the husband to “[t]ell your wife to stop hassling my brother-in-law at court.” Id. at 1331. On direct appeal, we determined that an outside influence must be present to raise the presumption of prejudice. See id. at 1332, That is where the majority’s analysis- falters, because the Nevada state courts never found that an external influence was exerted upon Juror No. 2. At most, the courts assumed the juror was followed, but did not link the asserted tailgating to Juror No, 2’s status as a holdout juror. Tail-gating an individual who is not known to be a holdout juror, or a juror at all, would not have a “tendency” to influence the jury’s verdict, and would not prompt a prejudice inquiry. Mattox, 146 U.S. at 150-51, 13 S.Ct. 50.

The other cases cited by the majority as clearly established Federal law are similarly “far afield.” In Remmer I, 347 U.S. at 228-29, 74 S.Ct. 450, unlike in this case, the allegations of jury tampering were unchallenged by the .prosecution, yet the district court denied the motion for a new trial. On direct appeal, the United, States Supreme Court remanded the case for a hearing on prejudice. See id. at 229-30, 74 S.Ct. 450. Not only is this case “far afield” because it did not involve habeas review. See Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1410, 179 L.Ed.2d 557 (2011) (clarifying that a case offers no guidance for habeas review under the AEDPA if the court did not apply AEDPA deference); see also Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). The allegations were also unchallenged, and the trial court failed to conduct a hearing. See Remmer I, 347 U.S. at 228-29, 74 S.Ct. 450; see also Parker v. Gladden, 385 U.S. 363, 364-65, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966) (allegations unrefuted).

In Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), the Supreme Court held that “the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias....” That is precisely what occurred in the state court. Tarango had the opportunity to prove the allegations, and the state courts determined that his proof was inadequate. That should be the end of the matter under habeas review. See Premo v. Moore, 562 U.S. 115, 131, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011).

2. Failure to defer to the Nevada Supreme Court

The Supreme Court has consistently and repeatedly stressed our obligation on ha-beas review to defer to the rulings and factual determinations made by the state courts. See Uttecht, 551 U.S. at 10, 127 S.Ct. 2218 (“By not according the required deference, the Court of Appeals failed to respect the limited role of federal habeas relief in this area prescribed by Congress and by our cases,”); see also Jackson, 133 S.Ct. at 1994 (referencing the “substantial deference” required by AEDPA); Cavazos v. Smith, — U.S. -, 132 S.Ct. 2, 7, 181 L.Ed.2d 311 (2011) (mentioning Supreme Court opinions “highlighting the necessity of deference to state courts in § 2254(d) habeas cases”); Pinholster, 131 S.Ct. at 1398 (describing the “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt”) (citation omitted); Richter, 562 U.S. at 104, 131 S.Ct. 770 (reversing this Circuit for “a lack of deference to the state court’s determination and an improper intervention in state, criminal processes, contrary to the purpose and mandate of AEDPA and to the now well-settled meaning and function of habeas corpus in the federal system”).

The trial court determined that .Tarango failed to adequately establish that jury tampering occurred, due to the speculative, vague, ambiguous and disputed nature of the allegations that a police officer identified Juror No. 2 as the holdout juror and tail-gated that juror for over seven miles. Although the trial court could have credited the juror’s version of events over the prosecution’s rebuttal, it did not do so. Rather than deferring to the state court’s determination, the majority engaged in its own factfinding, stating that: “[W]e have little trouble concluding that the contact that the Nevada Supreme Court assumed occurred had enough potential for prejudice to cross Mattox’s low threshold....” Majority Opinion, p. 949.

The majority’s disregard of the state court’s determination and substitution of its alternate conclusion strays from our appointed role on habeas review. See Richter, 562 U.S. at 104, 131 S.Ct. 770.

3. No supporting Supreme Court authority

Under the rule expressed by the majority, a trial court would have to conduct a prejudice analysis whenever an allegation of jury tampering is made, even if the trial court ultimately determines that the allegation is unsubstantiated. See Majority Opinion, p. 948 n.9 (discounting the trial court’s determination that the allegation of jury tampering was “ambiguous, vague and nonspecific”) (internal quotation marks omitted).

No Supreme Court precedent, supports the majority’s rationale. As previously noted, Remmer I and Mattox involved .undisputed evidence of extraneous influence. See Remmer I, 347 U.S. at 229, 74 S.Ct. 450; see also Mattox, 146 U.S. at 151, 13 S.Ct. 50. Smith merely stands for the proposition that the defendant asserting jury tampering must be afforded a hearing. See 455 U.S. at 215, 102 S.Ct. 940. It is without question that Tarango was afforded a hearing. So we are left with the majority’s premise untethered to any controlling Supreme Court authority. Rather, Mattox expressly points in the other direction, requiring proof that jury tampering actually occurred. See 146 U.S. at 149-50, 13 S.Ct. 50.

The Supreme Court has addressed the tendency of this Circuit to reach beyond the confines of Supreme Court precedent. In Lopez, 135 S.Ct. at 4, the Supreme Court scolded us for relying on “older cases that stand for nothing more than [a] general proposition.” Here, the majority similarly cites older cases standing for the general proposition that a defendant is entitled to a hearing when jury tampering is asserted, and a determination of prejudice when jury tampering has been established. See Remmer I, 347 U.S. at 228-29, 74 S.Ct. 450; see also Smith, 455 U.S. at 215, 102 S.Ct. 940. Just as in Lopez, “[n]one of [the Supreme Court] decisions that the [majority] cited addresses, even remotely, the specific question presented by this case.” 135 S.Ct. at 4 (citations omitted). The specific question in this case is whether the trial court is required to conduct a prejudice inquiry when that court has determined that the allegations of jury tampering are “ambiguous, vague and nonspecific.” The majority has cited no Supreme Court case addressing this specific question. Consequently, the Nevada Supreme Court decision could not have been- contrary to federal law under the AEDPA. See Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) (“With no Supreme Court precedent establishing [the standard adopted by the panel], habeas relief cannot be granted pursuant to § 2254(d)(1) based on such a standard-”).

CONCLUSION

I have no quarrel with the notion that we must faithfully adhere to the panoply of procedural protections afforded the criminal defendant. However, on habeas review, we are cabined by the deference owed to state court decisions and by the requirement that relief be granted only if the decision of the state court was contrary to established Supreme Court authority. Mattox is not that authority in this case.

The Supreme Court has repeatedly reminded us that the standard for relief on habeas review “is difficult to meet ... because it was meant to be...Richter, 562 U.S. at 102, 131 S.Ct. 770. Federal habeas review “is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.... ” Id. (citation and internal quotation marks omitted) (emphasis added). Rather than applying the “difficult” habeas standard, at best the majority engages in “ordinary error correction.” Id.

Because the majority cites no applicable Supreme Court authority to support its grant of habeas relief, because the majority completely disregards the findings of the state courts, and because the majority fails to adhere to the confines of habeas review, I respectfully dissent.

      . Tarango argued that Juror No. 2’s note indicated that the jury was hung, and moved for a mistrial, there being no alternate jurors left to take Juror No. 2’s place.

      . Meyer further clarifies the distinction:
      The first category includes jurors failing to follow standard admonitions not to discuss the case prior to- deliberations, accessing media reports about the case, conducting independent research or investigation, discussing the case with nonjurors, basing their decision on evidénce not admitted, discussing sentencing or the defendant's failure to testify, making'a decision on the basis of bias or prejudice, and lying during voir dire. It also includes juror incompetence issues such as intoxication. The second category involves attempts to influence the jury’s decision through improper contact with jurors, threats, or bribery.
      80 P.3d at 453. (internal citations omitted).

      . During voir dire, the parties and the trial court learned various details about Juror No. 2’s life. Juror No. 2 had served in the Air Force for four years doing “flight instrument trainers [sic), [and] navigation.” He completed both high school and also trade school in electronics. At the time of his jury service, Juror No. 2 was employed as a network administrator, was married, and had a daughter. He had lived in Clark County, Nevada since 1991.

      . Meyer also observes, though, that where juror misconduct involves "extrinsic information or contact with the jury, juror affidavits or testimony establishing the fact that the jury received the information or was contacted are permitted.” Meyer, 80 P.3d at 454. Meyer distinguished extrinsic information ábout which a juror may testify from intrinsic influences that are "generally not admissible to impeach a verdict” as follows: "An extraneous influence includes, among other things ... third-party communications with sitting jurors. In contrast, intra-jury or intrinsic influences involve improper discussions among jurors ..., intimidation or harassment of one juror by another, or other similar situations....” Id. (footnotes omitted).

      . Having taken judicial notice of a roadmap of Las Vegas, Nevada, we confirm that the distance from East Tropicana Avenue on US-95 to South Las Vegas Boulevard and East Carson Avenue is approximately 7.5 miles.

      . Juror No. 2 wrote a second letter to the trial judge following the hearing. The letter begins, "Your Honor; Please accept this letter as an apology. I was given the privilege to serve as a Juror and I failed.” Juror No. 2 went on to apologize to God, his fellow Jurors, the Las Vegas Metropolitan Police Department, and the "Citizens of this Great State Nevada.” He explained that his verdict was "untrue to [his] conscience,” because he "let fear of reprisal enter into [his] mind and heart.” As a result, Juror No. 2 expressed his desire "to nullify [his] verdict.” Juror No. 2 conceded that his request "may not be taken legally,” because he was ignorant of legal procedures, but that he "personally nullifies] [his] verdict to all those that will forgive me.”

      .The Nevada Supreme Court did not cite any United States Supreme Court authority in rendering its decision, but this is immaterial provided the state law is not inconsistent with clearly established federal law. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). Rather, as did the trial court, the Nevada Supreme Court relied almost entirely on its 2003 decision in Meyer.

      . In Smith, for example, the Court held that the district court properly conducted a hearing that explored the "effect” of a juror’s relationship with the prosecutor’s office before concluding that the defendant was not prejudiced by that relationship. 455 U.S. at 217-18, 102 S.Ct. 940.

      . The dissent incorrectly characterizes our holding as requiring an inquiry into prejudice even where the alleged contact or communication is unsubstantiated. Dissent at 957, To be clear, we agree that if the trial court had discredited Juror No, 2’s testimony and found that no pursuit occurred, then neither the trial court nor the Nevada Supreme Court would have had any cause to examine prejudice, See Caliendo, 365 F.3d at 698 n.4, But this is not the record before us. The trial court did not discredit the juror's testimony. The trial court characterized the “content” of the police tail as "ambiguous,” “vague,” and "nonspecific," but the court did not find that no police tail had occurred. Absent any clear finding with respect to the alleged police tail, the Nevada Supreme Court prudently as- , sumed that the juror had been followed. Based on that assumption, in order to determine whether jury tampering occurred, Supreme Court case law requires the court to consider the prejudice or influence of that contact. Contrary to clearly established Supreme Court case law, the Nevada Supreme Court failed to conduct this inquiry,

      . The dissent suggests that Mattox "expressly” requires "proof that jury tampering actually occurred,” Dissent at 957, but this argument misses the point. The Nevada Supreme Court presumed an unauthorized external contact with a juror had occurred. As Mattox and its progeny explain,, a court must examine the prejudice of such a contact as part of its determination as to whether the contact amounted to jury tampering. Here, the Nevada Supreme Court contravened clearly established federal law by not evaluating whether the external contact was prejudicial.

      . The trial court specifically found that Juror No. 2 “testified he was followed closely, tightly, however you want to state it from Tropicana on US-95 to Las Vegas Boulevard and Carson,” The trial court did not discredit Juror No. 2’s testimony, and appears to have accepted the allegation as true, at least for the sake of its decision denying Tarango’s motion to dismiss. In any event, our review is limited to the Nevada Supreme Court’s decision, see Miles, 713 F.3d at 486, which assumed that Juror No. 2 was in fact followed.

      . The dissent suggests that the cited Supreme Court cases are insufficiently specific to support our holding. See Dissent at 958. To the contrary, Mattox and its progeny set forth a standard that “clearly extend[s]” to the case before us. See Wright v. Van Patten, 552 U.S. 120, 123, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008). Where, as here, contact between a hold-out juror and a government official is shown, a court must investigate possible prejudice. The Nevada Supreme Court's failure to reach the prejudice inquiry was contrary to clearly established federal law.

      . Meyer, which the Nevada Supreme Court relied upon, appears to require the same of Nevada courts. Although Meyer rejects “the position that any extrinsic influence is automatically prejudicial,” it does not limit the occasions in which a court must consider the possibility of prejudice. See 80 P.3d at 455. Rather, because prejudice is not presumed for less egregious contacts, "the extrinsic information must be analyzed in the context of the trial as a whole to determine if there is a reasonable probability that the information affected the verdict.” Id. at 455-56. Meyer does not, however, wholly foreclose a prejudice inquiry in the face of credible allegations of juror misconduct. Id.

      .The dissent cites a number of Ninth Circuit AEDPA cases that were reversed by the Supreme Court, and in which the Supreme Court “chastised us” for ignoring AEDPA’s demanding standard. See Dissent at 953-54. These -cases have no bearing on the issue presented in this appeal.

      . The Nevada Supreme Court has identified a similar dichotomy in its own construction of Supreme Court case law prohibiting external influences on criminal juries. Meyer, 80 P.3d at 455-56.

      . The majority mischaracterizes my description of the state courts' factual determination, See Majority Opinion, p, 948 n.9. The state court did not discredit, and I did not describe the state courts’ finding as discrediting, Juror No. 2’s statement that he "thought he was followed by a police car.” Nevada Supreme Court Order, p. 2. What the state courts did discredit, and what I did describe the state courts as finding, was a lack of substantiation that the police car was following Juror No, 2 on the freeway because he was a holdout juror. There was insufficient evidence in the state courts’ view that a tail-gating police •officer in rush-hour morning traffic constituted an improper external influence. Rather than focusing on whether Tarango submitted evidence of an external influence, see, e.g., Mattox v. United States, 146 U.S. 140, 141-4413 S.Ct. 50, 36 L.Ed. 917 (inflammatory newspaper article read to the jury); Remmer v. United States (Remmer I), 347 U.S. 227, 228, 74 S.Ct. 450, 98 L.Ed. 654 (1954) (juror told he could profit from favorable verdict), the majority concludes that the existence of police tail-gating during rush hour traffic, and nothing more, compelled the state court to conduct a prejudice inquiry.

      . The majority takes judicial notice of a road-map of Las Vegas, Nevada to approximate the distance involved as 7.5 miles. See Majority Opinion, p. 943 n.5. The majority should have also taken notice that US-95 is the only freeway that accesses downtown from east on Tropicana Boulevard, and therefore it would not be unusual for a police officer to take that route to police headquarters downtown.

      . The majority malees light of the many rebukes we have received from the Supreme Court for ignoring the demanding standard under which we review habeas cases. See Majority Opinion, p. 950 n.14. I doubt the Supreme Court will be amused.

      . Curiously, the majority opinion implies that a newspaper article is not a "cpmmunication.” Majority Opinion, p. 946. Nothing could be further from the truth. See Hilliard v. Arizona, 362 F.2d 908, 909 (9th Cir. 1966) (noting that the Judge admonished jurors "to avoid out of court communications ... including newspaper articles”).

      ... The majority completely ignores the fact that the state court never found that the police officer was aware of the identity of the holdout juror. For that reason, the state court merely assumed that there was a tail-gating, not that there was "external contact.”' The assumption' of "external contact” is made by the majority.

      . The majority accuses me of missing the point, see Majority Opinion, p. ,948-49 n.,10, but it is the majority that is off-base. The state courts NEVER "presumed an unauthorized external contact with a juror had .occurred.” Id. The most the state courts assumed was that a police car tail-gated Juror No. 2 during . morning rush-hour traffic on the only freeway that accesses downtown from east Tropicana Boulevard. The majority presumes the rest.

      . The majority takes issue with, and in the process implicitly concedes, my point that the Supreme Court cases relied upon by the majority "are insufficiently specific.” Majority Opinion, p. 950 n.12. In the very next sentence, the majority seeks to "extend” the standards set forth in "Mattox and its progeny.” Id. However, the Supreme Court has expressly instructed us against extending its precedent beyond its specific holdings. See White v. Woodall, — U.S. —, 134 S.Ct. 1697, 1706, 188 L.Ed.2d 698 (2014) ("[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 ... ”) (citation and internal quotation marks omitted).


author: CHRISTEN, Circuit Judge:

text:
    JAMUL ACTION COMMITTEE; Jamul Community Church; Darla Kasmedo; Paul Scripps; Glen Revell; William Hendrix, Plaintiffs-Appellants, v. Jonodev CHAUDHURI, Chairwoman of the National Indian Gaming Commission; Sally Jewell, Secretary of the U.S. Department of the Interior; Kevin K. Washburn, Esquire, Assistant Secretary — Indian Affairs, U.S. Department of the Interior; Amy Dutschke, Regional Director, Bureau of Indian Affairs; Paula L. Hart, Director of the Office of Indian Gaming, Bureau of Indian Affairs; John Rydzik, Chief, Division of Environmental, Cultural Resources Management and Safety of the Bureau of Indian Affairs; Dawn Houle, Chief of Staff for the National Indian Gaming Commission; U.S. Department of the Interior; National Indian Gaming Commission; Raymond Hunter, Chairman, Jamul Indian Village; Charlene Chamberlain; Robert Mesa; Richard Tellow; Julia Lotta; Penn National, Inc.; San Diego Gaming Village, LLC; C.W. Driver, Inc., Defendants-Appellees.
    No. 15-16021
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 7, 2015—San Francisco, California
    Filed June 9, 2016
    Amended July 15, 2016
    Amended August 19,2016

      Kenneth -Robert Williams (argued), Sacramento, California, for Plaintiffs-Appellants.
    Elizabeth Ann Peterson (argued), William B. Lazarus, Judith Rabinowitz, and Barbara M.R. Marvin, Attorneys; John C. Graden, Assistant Attorney General, Environment and Natural Resources Division; United States. Department of Justice, Washington, D.C.; Rebecca Ross, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; John Hay, Office of the General Counsel, National Indian Gaming Commission, Washington, D.C.; for Federal Defendants-Appellees.
    Frank'Lawrence (argued), Law Office of Frank Lawrence, Grass Valley, California, for Tribally-Related Defendants-Appel-lees.
    Patrick D. Webb, Webb & Carey, San Diego, California, for Amici Curiae Walter Rosales and Karen Toggery.
    Before: ALEX KOZINSKI, JAY S. BYBEE, and MORGAN CHRISTEN, Circuit Judges.
   ORDER

The opinion issued in this appeal is amended as follows:

On page 6 of the slip opinion, replace Rosales v. United States, 275 F. App’x 1 (D.C. Cir. 2008), with Rosales v. United States, 73 F. App’x 913 (9th Cir. 2003). With that amendment, Plaintiffs-Appellants’. petition for panel rehearing is DENIED. The petition for rehearing en banc remains pending..

CHRISTEN, Circuit Judge:

OPINION

This case is about an Indian gaming casino in Jamul, California, a rural community close to San Diego, California. The Jamul Indian Village, a federally recognized Indian tribe and a non-party to this suit (“the Tribe”), is building a casino in Jamul. A number of individuals and organizations, including the Jamul Action Committee, the Jamul Community Church, and four residents of rural Jamul (collectively “JAC”), opposes the casino. This lawsuit is JAC’s most recent effort to stop its construction. See, e.g., Rosales v. United States, 73 F. App’x 913 (9th Cir. 2003). JAC contends that the’ National Indian Gaming Commission (“NIGC”) violated the National Environmental Policy Act (“NEPA”) when it approved the Tribe’s gaming ordinance (“GO”) without first conducting a NEPA environmental review. JAC petitioned the district court for a writ of mandamus under the Administrative Procedure Act (“APA”), arguing that the NEPA environmental reviéw was “agency action unlawfully withheld.” 5 U.S.C. § 706(1). The district court denied relief. We have jurisdiction under 28 U.S.C. § 1292(a)(1), and'we affirm.

I.

A.

This appeal turns on the interplay between two federal statutes:' the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. §§ 2701-2721, and NEPA, 42 U.S.C. §§ 4321-4370h,

Congress enacted IGRA to regulate gaming on Indian lands. Big Lagoon Rancheria v. California, 789 F.3d 947, 949 (9th Cir. 2015) (en banc). IGRA divides gaming activities into “classes” based on the types of games involved. Class III gaming (the kind at issue here) “often involves ‘the types of high-stakes games usually associated with Nevada-style gambling,’ ” id. (citation omitted), such as banking card games and slot machines. 25 U.S.C. § 2703(8). IGRA permits class III gaming only if it is “conducted in conformance with a Tribal-State compact entered into by the Indian tribe and the State,” id. § 2710(d)(1)(C), and approved by the Secretary of the Interior, id. § 2710(d)(3)(B).

IGRA requires Indian tribes to receive NIGC’s approval of a gaming ordinance before engaging in class III gaming on Indian land. N. Cty. Cmty. All., Inc. v. Salazar, 573 F.3d 738, 741 (9th Cir. 2009). A gaming ordinance is a resolution adopted by the tribe that describes how the tribe will operate its gambling facilities. 25 U.S.C. § 2710(b)(2)(B). NIGC “shall” approve a gaming ordinance that meets IGRA’s requirements “by not later than the date that is 90 days after the date on which [the ordinance] is submitted to the Chairman.” Id. § 2710(e). If NIGC has not acted on the proposed ordinance by the end of the ninety-day period, the gaming ordinance “shall be considered to have been approved by the Chairman, but only to the extent such ordinance ór resolution is consistent with the provisions’of’ IGRA. Id.; AT & T Corp. v. Coeur d’Alene Tribe, 295 F.3d 899, 906 n.9 (9th Cir. 2002) (noting that NIGC’s tacit approval of a proposed gaming ordinance is final agency action).

NEPA “is our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1(a). NEPA imposes on federal agencies certain “ ‘action-forcing’ procedures that require that agencies take a ‘hard look’ at environmental consequences” of major federal action. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); see also 42 U.S.C. § 4332. Those procedures are designed to “insure [sic] that environmental information is available to public officials and citizens before decisions are made and before actions are taken,” 40 C.F.R. § 1500.1(b), and to “help public officials make decisions that are based on understanding of environmental consequences,” id. § 1500.1(c). Preeminent among these “action-forcing procedures” is NEPA’s requirement that federal agencies contemplating “major Federal action[ ]” prepare an environmental impact statement (“EIS”) analyzing that action. See 42 U.S.C. § 4332; 40 C.F.R. § 1502.3. “NEPA directs that, ‘to the fullest extent possible ... public laws of the United States shall be interpreted and administered in accordance with [it].’ ” Westlands Water Dist. v. Nat. Res. Def. Council, 43 F.3d 457, 460 (9th Cir. 1994) (quoting 42 U.S.C. § 4332 (1988)). Therefore, NEPA applies “unless the existing law applicable to. such agency’s operations expressly prohibits or. makes full compliance with one of the directives impossible.” Jones v. Gordon, 792 F.2d 821, 826 (9th Cir. 1986) (quoting 115 Cong. Rec. 39703 (1969)).

B.

The Jamul Indian Village casino has been in the works for rtiore than fifteen years. The Tribe first enacted a gaming ordinance for class III, casino-style gaming in Jamul in the late 1990s,. and NIGC published notice of approval of the ordinance in the Federal Register on January 29, 1999. 64 Fed. Reg. 4,722, 4,723 (Jan. 29, 1999). The next year, the Tribe entered into a compact with the State of California to conduct class III gaming. 65 Fed. , Reg. 31,189 (May 16, 2000) (Secretary of the Interior’s notice of approval of the compact). The Tribe initially planned to build parts of the casino on land that it requested from the Secretary of the Interior in the form of a trust-transfer under, the Indian Reorganization Act, 25 U.S.C. § 461; see 67 Fed. Reg. 15,582 (Apr. 2, 2002), but it ultimately redesigned the proposed project to eliminate the need for the trust land, 78 Fed. Reg. 21,398, 21,399 (Apr. 10, 2013). The Tribe sought and obtained NIGC’s approval of a revised gaming ordinance for the redesigned project in 2013. Site preparation for the casino began early in 2014, and as of the time we held oral argument, construction was underway.

C.

In September 2013, plaintiffs sued NIGC, its chair, and several other federal actors (“Federal Defendants”); tribal officials- in their individual capacities (“Tribally-related defendants”); and several private companies alleging, inter alia, that defendants failed to comply with NEPA when evaluating the Jamul casino. In January 2015, plaintiffs filed in the district court a motion for a writ of mandamus under 5 U.S.C. § 706(1). That part of the APA enables federal courts to “compel agency action unlawfully withheld or unreasonably delayed.” Id. In their motion, plaintiffs requested “a writ of mandate to the Federal Defendants directing them to comply with NEPA and finalize and circulate a draft [supplemental environmental impact statement] SEIS while there is still time to avoid the consequences of the Defendants’ non-compliance with NEPA.” The district court denied relief, holding, in relevant part, that NIGC’s approval of the 2013 - gaming ordinance was not “major federal action” within the meaning of NEPA. 40 C.F.R. § 1508.18 (defining “major federal action”).

II.

We review de novo the district court’s decision on issues of law, including whether NEPA applies to the. agency action at issue here. See San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 991 (9th Cir. 2014). We review JAC’s petition for a writ of mandamus under the “arbitrary or capricious” standard of review. Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 763 (2004) (“An agency’s decision not to prepare an EIS can be set aside only upon a showing that it was ‘arbitrary, capricious,, an abuse of discretion, or otherwise not in accordance with law.’ ”).

III.

On appeal, JAC argues that NEPA required NIGC to conduct an environmental review before it approved the Tribe’s 2013 gaming ordinance, and NIGC’s failure to do so means that it “unlawfully withheld ... agency action.” 5 U.S.C. § 706(1); Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (“[A] claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.”). We disagree. Even if, as appellants argue, NIGC’s approval of the gaming ordinance was a “major Federal action[ ]” within the meaning of NEPA, 42 U.S.C. § 4332, NIGC was not required to prepare an EIS because there is an irreconcilable statutory conflict between NEPA and IGRA.

The federal respondents contend (and the district court concluded) that our decision in North County Community Alliance v. Salazar, 573 F.3d 738, 740 (9th Cir. 2009), conclusively resolves the NEPA issues presented here. We respectfully disagree. The plaintiffs in North County sued NIGC after the Commissioner approved a tribal gaming ordinance without first determining whether the tribe’s proposed casino was on “Indian lands,” as defined by IGRA. The crux of the plaintiffs’ complaint was that the agency violated IGRA because it failed to make an “Indian lands determination.” Id. The North County plaintiffs also argued that NIGC violated NEPA, a challenge we resolved as follows:

The Alliance claims that NIGC’s failure to make an Indian lands determination constituted a “major Federal action[]” under 42 U.S.C. § 4332(C) requiring environmental review, including preparation of an EIS, under NEPA. We disagree. There has been no major federal action in this case. Therefore, the Appel-lees had no obligation under NEPA.

Id. at 749. North County does not settle the NEPA issue presented here because we limited our NEPA analysis in North County to the issue presented: Whether “NIGC’s failure to make an Indian lands determination constituted a ‘major Federal action[]’ under 42 U.S.C. § 4332(C) requiring environmental review, including preparation of an EIS, under NEPA.” Id.; see also Appellant’s Reply Brief at *15 n.7, North County, 573 F.3d at 738 (No. 07-36048), 2007 WL 5445598 (the Indian lands determination would have “provide[d] the ‘major federal, action’ required to trigger NEPA”). North County did not address whether NEPA requires NIGC to conduct an environmental review before approving a gaming ordinance. We have not had occasion to address this issue in our prior decisions, but we turn to it now.

Our court has recognized two circumstances where an agency need not complete an EIS even in the presence of major federal action and “despite an absence of express statutory exemption.” San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 648 (9th Cir. 2014). First, an agency need not adhere to NEPA “where doing so ‘would create an irreconcilable and fundamental conflict’ with the substantive statute at issue.” Id. Second, in limited instances, a substantive statute “displaces” NEPA’s procedural requirements. Id. This case falls into the first category.

The Supreme Court first considered the presence of “an irreconcilable and fundamental conflict” in Flint Ridge Development Co. v. Scenic Rivers Ass’n of Oklahoma. 426 U.S. 776 (1976). Flint Ridge involved a statute requiring developers of subdivisions to prepare a statement about their proposed project before marketing homes to the public. Id. at 779-80. Developers were required to file their statement with the U.S. Department of Housing and Urban Development (“HUD”). The statute provided that a developer’s statement would “become[ ] effective automatically on the 30th day after filing, or on such earlier date as the [HUD] Secretary may determine.” Id. at 781. Defendants proposed construction of a subdivision near the Illinois River in Oklahoma. While the paperwork was pending, plaintiffs petitioned HUD to prepare an EIS to study the impact of the subdivision on the river. HUD rejected plaintiffs’ request, and they sought judicial review. The Supreme Court upheld the agency’s action, concluding that there was an irreconcilable conflict between the HUD statute’s thirty day time-line and NEPA: “It is inconceivable that an environmental impact statement could, in 30 days, be drafted, circulated, commented upon, and then reviewed and revised in light of the comments.” Id. at 788-89. Thus, “even if the Secretary’s action in this case constituted major federal action significantly affecting the quality of the human environment so that an environmental impact statement would ordinarily be required, there would be a clear and fundamental conflict of statutory duty” between the HUD statute and NEPA, such that “NEPA’s impact statement requirement is inapplicable.” Id. at 791. Under Flint Ridge, “[a]n irreconcilable conflict is created if a statute mandates a fixed time period for implementation and this time period is too short to allow the agency to comply with ' NEPA.” Westlands Water Dist., 43 F.3d at 460.

Our court has been reticent to find a statutory conflict between NEPA and other provisions of the U.S. Code lest Flint Ridge’s exception undermine Congress’s intent that NEPA apply broadly. See, e.g., Forelaws on Board v. Johnson, 743 F.2d 677, 683 (9th Cir. 1985) (“NEPA’s legislative history reflects Congress’s concern that agencies might attempt to avoid any compliance with NEPA by narrowly construing other statutory directives to create a conflict with NEPA.”), as amended. Thus, we have held that a short time frame for agency action does not create a statutory conflict under Flint Ridge when an agency, not Congress, imposes a deadline. Id., at 683-85. There is likewise no “irreconcilable conflict” under Flint Ridge when the triggering act for a short statutory time table “is within the control of the” agency. Jones, 792 F.2d at 826; see also id. (declining to And a statutory conflict between NEPA and the Marine Mammal Protection Act’s permit approval timeline because “the triggering act for the statutory time table, the publication of notice of a permit application, is within the control” of the agency, and the agency “could'withhold publication long enough to comply with any NEPA requirement for preparation of an” EIS). By contrast, an irreconcilable conflict does exist where “Congress did not give the Secretary discretion over when he may carry out his duties,” Westlands Water Dist., 43 F.3d at 460, and the statute imposing the time table provides that the proposed action is approved “unless the'[agency] acts before the expiration of the statutory period,” Vill. of Barrington, Ill. v. Surface Transp. Bd., 636 F.3d 650, 662 (D.C. Cir. 2011) (distinguishing Flint Ridge on this ground); see also Flint Ridge, 426 U.S. at 781.

Here, like in Flint Ridge and Westlands Water District, Congress imposed an unyielding statutory deadline for agency action. IGRA requires NIGC to approve a gaming ordinance or resolution “by not later than the date that is 90 days after the date on which any tribal gaming ordinance or resolution is submitted to the Chairman ... if it meets the requirements of this section.” 25 U.S.C. § 2710(e). Courts routinely interpret this provision of IGRA as creating a mandatory deadline for agency action. See, e.g., Coeur d’Alene Tribe, 295 F.3d at 906 n.9 (an agency’s tacit approval of a gaming ordinance under § 2710(e) is a final agency action for purposes of the APA); Massachusetts v. AQUINNAH, No. 13-13286-FDS, 2015 WL 7185436, at *6 n.4 (D. Mass. Nov. 13, 2015) (“A gaming ordinance is automatically approved by NIGC, by operation of law, if it does not act on the ordinance within 90 days.”); cf. Gottlieb v. Peña, 41 F.3d 730, 731 (D.C. Cir. 1994) (contrasting § 2710(e), a mandatory deadline for agency action, with the “ten-month period for final agency action on applications for correction of Coast Guard records,” a discretionary deadline for agency action). The deadline at issue here was imposed by Congress, not NIGC. See 25 U.S.C. § 2710(e). And, unlike in Jones, the act triggering IGRA’s timetable is not within NIGC’s control because it is a tribe’s submission of a proposed gaming ordinance to the agency that triggers the statutory countdown. Id.; cf. Jones, 792 F.2d at 826. Finally, like in Flint Ridge, a gaming ordinance or resolution automatically takes effect after ninety days with or without action by the Commissioner. 25 U.S.C. § 2710(e) (“Any such ordinance or resolution not acted upon at the end of that 90-day period shall be considered to have been approved by the Chairman .... ”).

There is no question that it would be impossible for NIGC to prepare an EIS in the ninety days it has to approve a gaming ordinance. The Supreme Court in Flint Ridge recognized that

[d]raft environmental impact statements on simple projects prepared by experienced personnel take some three to five months to complete, at least in the Department of the Interior.... Once a draft statement is prepared, [Council on Environmental Quality] guidelines provide that ‘[t]o the maximum extent practicable’ no.action should be taken sooner than 90 days after a draft environmental impact statement (and 30 days after the final statement) has been made available for comment.

Flint Ridge, 426 U.S. at 789 n.10. In keeping with the Supreme Court’s analysis, we have previously assumed that it.takes an agency at least 360 days to prepare an EIS. See Jones, 792 F.2d at 825;

NEPA’s regulations confirm that an agency cannot prepare an EIS in ninety days. Before publishing its final EIS on a proposed project, an agency must: (1) publish in the Federal Register a notice of intent to prepare an EIS, 40 C.F.R. §§ 1508.22, 1501.7; (2) gather input on the scope of issues the EIS should address (this is called scoping), id. § 1501.7; (3) prepare a draft EIS and publish that document in the Federal Register, id. §§ 1502.9, 1506.10(a); (4) provide the public an opportunity to comment on the draft EIS and respond to those comments, id. § 1503.4; (5) prepare the final EIS, id. § 1502.9; and (6) prepare and issue a record of decision, id. § 1505.2. The regulations make it impossible for an agency to complete these steps within ninety days. NIGC has previously given the public thirty days to comment • on the scope and implementation of a proposed EIS. See 78 Fed. Reg. 21,398 (Apr. 10, 2013). An agency must provide forty-five days for public comment on a draft EIS, 40 C.F.R. § 1506.10(c), and it must wait at least thirty days after publishing the final EIS before finalizing the proposed action, id. § 1506.10(b)(2). In all cases, “[n]o decision on the proposed action shall be made or recorded ... until ... [njinety (90) days after publication of the” notice of the draft EIS in the Federal Register. Id. § 1506.10(b)(1). So, assuming it takes no time to respond to the public’s view on scope and implementation, prepare a draft EIS, and incorporate public comments into the final EIS, the shortest time frame in which NIGC could prepare an EIS would be one hundred and twenty days. Plainly, there is an irreconcilable statutory conflict between the mandatory agency deadline in 25 U.S.C. § 2710(e) and NEPA.

This conclusion is consistent with NIGC’s informal analysis of its own NEPA obligations. NIGC published a draft NEPA Handbook in 2009 that says: “In some cases, the NIGC’s statutory requirements are inconsistent with NEPA. The following NIGC action(s) have been determined to fit into this category: ... Approval of Tribal gaming ordinances or resolutions as provided in § 2710 of the IGRA, which must be completed within ninety (90) days of submission to the NIGC.” 74 Fed. Reg. 63,765, 63,769 (Dec. 4, 2009).

Contrary to JAC’s arguments, NIGC’s approval of the Tribe’s gaming ordinance without conducting a NEPA environmental review did not violate NIGC’s obligations under NEPA because “where a clear and unavoidable conflict in statutory authority exists, NEPA must give way.” Flint Ridge, 426 U.S. at 788. Though the district court relied on other grounds, we affirm its denial of plaintiffs requested writ of mandamus.

CONCLUSION

The decision of the district court is

AFFIRMED.

      . In this opinion we address only JAC’s contention that NIGC violated NEPA when it approved the GO. We address JAC’s remaining arguments in a memorandum disposition filed contemporaneously with this opinion.


author: PER CURIAM:

text:
    Juan Carlos FUENTES, Petitioner, v. Loretta E. LYNCH, Attorney General, Respondent.
    No. 13-74056
    United States Court of Appeals, Ninth Circuit.
    Submitted August 31, 2016  Pasadena, California
    Filed September 14, 2016

      Kiran Nair, Law Office of Kir an Nair, Orange, California, for Petitioner.
    Walter Bocchini, Trial Attorney; Linda S. Wernery, Assistant Director; Stuart F, Delery, Assistant Attorney General; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Respondent.
    Before: BARRY G. SILVERMAN, RAYMOND C. FISHER and PAUL J. WATFORD, Circuit Judges.

       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

   OPINION

PER CURIAM:

Juan Carlos Fuentes petitions for review of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the decision of the Immigration Judge (IJ) denying his application for cancellation of removal under 8 U.S.C. § 1229b(a). Applying Medina-Nunez v. Lynch, 788 F.3d 1103 (9th Cir. 2015), and In re Reza-Murillo, 25 I. & N. Dec. 296 (BIA 2010), we hold the BIA properly concluded Fuentes was not “admitted in any status” for purposes of cancellation of removal when he was listed as a derivative beneficiary on his mother’s asylum and Nicaraguan Adjustment and Central American Relief Act (NACARA) applications and received work authorization in the United States. We dismiss in part and deny in part the petition for review.

To be eligible for cancellation of removal, Fuentes had to establish he “resided in the United States continuously for 7 years after having been admitted in any status.” 8 U.S.C. § 1229b(a)(2) (emphasis added). Fuentes, who entered the United States without inspection in 1996, was admitted in 2004, when he was granted legal permanent resident (LPR) status. His continuous residence ended in 2009, when he committed a controlled substance offense, so he does not satisfy the seven years of continuous residency requirement.

Fuentes contends he does satisfy the requirement because he should be deemed to have been “admitted in any status” when his mother listed him as a derivative beneficiary on her asylum and NACARA applications and when, as an applicant, he received authorization to work in the United States. He relies principally on Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1009 (9th Cir. 2006), holding individuals accepted into the Family Unity Program (FUP) are “admitted in any status” for purposes of § 1229b(a)(2), and Garcia v. Holder, 659 F.3d 1261, 1263 (9th Cir. 2011), holding individuals paroled as Special Immigrant Juveniles under 8 U.S.C. § 1255(h) are “admitted in any status” for purposes of § 1229b(a)(2).

In Medina-Nunez v. Lynch, 788 F.3d 1103, 1105 (9th Cir. 2015), however, we afforded Chevron deference to In re Reza-Murillo, 25 I. & N. Dec. 296 (BIA 2010). In Reza-Murillo, the BIA held, contrary to Garcictr-Quintero, that individuals accepted into the FUP are not considered “admitted in any status” for purposes of cancellation of removal. See Reza-Murillo, 25 I. & N. Dec. at 299. The BIA recognized there may be cases in which there are “compelling reasons,” id., to deem individuals “admitted in any status” notwithstanding their lack of admission under 8 U.S.C. § 1101(a)(13)(A) (“The terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”), such as with persons granted LPR status, see In re Rosas-Ramirez, 22 I. & N. Dec. 616 (BIA 1999). See id. at 299-300. But the Board concluded such reasons did not exist in the case of FUP participants. See id. In Medina-Nunez, 788 F.3d at 1105, we afforded Chevron deference to Reza-Murillo, abrogating Garcia-Quintero, and held acceptance into the FUP does not constitute admission for purposes of § 1229b(a)(2).

Individuals in Fuentes’ position, who have been listed as derivative beneficiaries on a parent’s asylum and NACARA applications and who have been afforded authorization to work in the United States, have no stronger claim to having been “admitted” into the United States than individuals accepted into the FUP. FUP participants have not merely applied for, but have been accepted into, a special immigration status. See Garcia-Quintero, 455 F.3d at 1009. They have protection against removal, freedom to travel outside the United States, work authorization under 8 C.F.R. § 274a.12(a)(14) and status recognition under a federal regulation, 8 C.F.R. § 236.16. See id. at 1009-10, 1017-18. Because Fuentes enjoyed fewer benefits than FUP participants, his claim to admission is no greater than — and in fact is weaker than — pei’sons accepted into the FUP. Thus, under Reza-Murillo and Medina-Nunez, he was not “admitted in any status” before he obtained LPR status in 2004. The BIA therefore properly dismissed Fuentes’ appeal from the IJ’s denial of his application for cancellation of removal.

Even under .our pre-Medina-Nunez case law, which remains controlling precedent to the extent it is consistent with Reza-Murillo, Fuentes’ contention that he was “admitted in any status” because he was listed as a derivative beneficiary on his mother’s asylum and NACARA applications would be unpersuasive. See, e.g., Vasquez de Alcantar v. Holder, 645 F.3d 1097, 1103 (9th Cir. 2011) (noting the submission of an application for adjustment of status “does not connote that- the alien’s immigration status has changed, as the very real possibility exists that the [government] will deny the alien’s application altogether” (quoting United States v. Elrawy, 448 F.3d 309, 313 (5th Cir. 2006))); Sudomir v. McMahon, 767 F.2d 1456, 1462 (9th Cir. 1985) (with respect to asylum applicants who enter or remain in the United States illegally and then apply for asylum, “[t]heir presence is tolerated during the period necessary to process their applications” but “it has not been legitimated by any affirmative act”). Nor. would his work authorization under 8 C.F.R. § 274a.12(c) establish his admission. See Guevara v. Holder, 649 F.3d 1086, 1091-92 (9th Cir. 2011) (noting distinctions between work authorization under 8 C.F.R. § 274a.12(a) and (c) and holding an individual is not “admitted in any status” merely because he or she has been granted work'authorization).

Finally, to the extent Fuentes contends he was “admitted in- any status” based on the seven years of presence he established in connection with his own NA-CARA application, this argument is not before us because it was not presented to the BIA. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (“We lack jurisdiction to review legal claims not presented in an alien’s administrative proceedings before the BLA”). -

PETITION DISMISSED IN PART AND DENIED IN PART.