dissenting:

Justice Black observed in In re Michael, 826 U.S. 224 , 228, 66 S.Ct. 78 , 90 L.Ed. 30 (1945): “[I]t is difficult to conceive of a more effective obstruction to the judicial process than a juror who has prejudged the case.” In all due respect, the majority’s refusal to require the trial judge to hold a hearing as to the expressed color-able bias of two jurors before hearing any evidence in the case is a clear travesty of justice. Such a holding is directly contrary to United States Supreme Court precedent.

In this first degree murder trial, before evidence was presented and after the jury was sworn, Mrs. Arganbright, one of the jurors, informed the state trial judge that she heard two other jurors express an opinion in the jury room that they felt Tracey was guilty. Juror Arganbright’s note stated:

(Emphasis added).

After extensive questioning concerning Arganbright’s own bias, the trial judge dismissed her because he found she was emotionally unfit to sit as a juror. The trial judge, thereafter, briefly questioned Arganbright out of the presence of the other jurors about the alleged bias of the other two women. Arganbright said she overheard two women express an opinion that they felt Tracey was guilty. 1 She also stated that one juror expressed she had “bad feelings” about Tracey before the jury was selected, and the second juror made her statement after the jury was selected. 2 The trial judge then refused to further investigate the statements of the two jurors and entertained an objection from counsel. 3

*1047 After the objection, the trial judge refused to carry on any further investigation. He justified his ruling as follows:

(Emphasis added).

The trial judge observed that the two jurors simply had bad feelings about Tracey. The trial judge misinterpreted Ar-ganbright’s unambiguous note and failed to recognize that the two jurors had expressed an opinion, before evidence was received, that they both believed Tracey was guilty. Similarly, the State of Oregon in its brief before this court, as well as the federal magistrate judge, never once acknowledged the jurors’ statements that they believed Tracey was guilty. Now, the majority opinion compounds that error by holding the record does not support such a broad conclusion.

The majority justifies its holding by saying that Mrs. Arganbright’s note and testimony reflecting the colorable bias of the two jurors was ambiguous. The majority argues that the record must show conclusively that the jurors thought Tracey was guilty. It argues that Mrs. Arganbright’s note and testimony shows that it was unclear in that she was ambiguous as to whether the bad feelings comment was made before or after the jury selection. I fail to understand what difference this might make. The state trial judge was notified of these statements by the two jurors that they felt Tracey was guilty before any evidence was received. It is clear the “bad feeling” comment cannot be read out of context. It was conjoined with the jurors’ statements that they felt Tracey was guilty before any evidence was received. Finally, I must disagree with the majority that Mrs. Arganbright’s testimony was ambiguous in that it specifically recalled the timing of the two jurors’ comments.

It is not necessary in determining whether a juror is impartial to hold that their feelings were conclusively shown. There is no question that the statements of Mrs. Arganbright show that they possessed a colorable bias before the trial *1048 commenced. The United States Supreme Court noted in Aldridge v. United States, 283 U.S. 308 , 51 S.Ct. 470 , 75 L.Ed. 1054 (1931): “ ‘As the juror best knows the condition of his own mind, no satisfactory conclusion can be arrived at, without resort to himself. Applying this test then, how is it possible to ascertain whether he is prejudiced or not, unless questions similar to the foregoing are propounded to him?’ ” Id. at 313 n. 3, 51 S.Ct. 470 (quoting People v. Reyes, 5 Cal. 347, 349 , 1855 WL 769 (1855)).

Thus, there should be little question that the state trial judge under the actual circumstances shown by Mrs. Arganbright’s note that the Constitution mandated a further hearing to explore the alleged color-able bias of the two jurors. In all due respect, it is unfathomable to hold otherwise.

The state trial judge stated: “This lady says I have bad feelings about him. To me that is significantly different than saying I find him guilty at this point....” Of course, this ignores the full content of the Arganbright’s note, that she had overheard two jurors express that they felt Tracey was guilty before the trial commenced. 4 The trial judge then called the entire jury into the courtroom and instructed them not to talk about the case with one another. Such an instruction did little to investigate the obvious bias which two of the sitting jurors possessed.

In Williams v. Taylor, 529 U.S. 362 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000), interpreting the Anti-Terrorism & Effective Death Penalty Act, Pub.L. No. 104-132 (1996) (“AEDPA”), the Court observed that a state court ruling is contrary to clearly established Supreme Court precedent “if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Id. at 405-06, 120 S.Ct. 1495 .

There is no more settled rule under our Constitution than the principle that due process requires that every defendant be given a fair trial. This principle is further embodied in the Constitution’s requirement that every juror must be impartial. It is a violation of the Due Process Clause made applicable to the states through the Fourteenth Amendment that a biased juror should not and cannot serve on a jury in a civil or criminal case. In Irvin v. Dowd, 366 U.S. 717 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961), the Supreme Court observed:

Id. at 722, 81 S.Ct. 1689 (footnote omitted).

In Morgan v. Illinois, 504 U.S. 719 , 112 S.Ct. 2222 , 119 L.Ed.2d 492 (1992), the Court observed: “due process alone has long demanded that, if a jury is to be provided the defendant, regardless of whether the Sixth Amendment requires it, the jury must stand impartial and indifferent to the extent commanded by the Sixth Amendment.” Id. at 727 , 112 S.Ct. 2222 (citing Turner v. Louisiana, 379 U.S. 466, 471 , 85 S.Ct. 546 , 13 L.Ed.2d 424 (1965)).

A legion of lower court opinions, including cases from the Ninth Circuit, acknowledge long-standing Supreme Court precedent holding that due process requires an impartial jury. 5

I have great difficulty understanding the majority’s affirmance of the trial court’s action. The majority opinion argues at length that a trial judge need not hold an investigation or hearing every time a party alleges juror bias. Of course, the need to interrogate the jurors or to declare a mistrial or to allow an in camera hearing with counsel, depends upon the factual circumstances of each case. As Tracey’s trial counsel urged, jurors who expressed an opinion that a defendant was guilty before hearing evidence clearly presented a color-able claim of bias. There is no question that when the trial judge was notified as to the beliefs of these two jurors, further investigation was necessary. 6 As the Supreme Court stated in Smith v. Phillips: “Due process means a jury capable and willing to decide the case solely on the *1050 evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” 455 U.S. 209, 217 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982) (emphasis added). The majority relies upon the next sentence in Smith which reads: “Such determinations may properly be made at a hearing like that ordered in Remmer and held in this case.” Id. (their emphasis). The Court in Remmer actually supports the need for further investigation when one party raises a color-able claim of jury bias. Remmer v. United States, 347 U.S. 227, 229 , 74 S.Ct. 450 , 98 L.Ed. 654 (1954).

Nevertheless, Remmer is not applicable in the present case because the Supreme Court based its decision on the supervisory power of the Supreme Court over lower federal courts rather than on the commands of the Sixth Amendment. See Mu’Min v. Virginia, 500 U.S. 415, 430-31 , 111 S.Ct. 1899 , 114 L.Ed.2d 493 (1991).

In the present case, there was no hearing held to explore the colorable bias of the two women jurors. The trial judge refused to make any investigation whatsoever. The majority puts great emphasis upon the word “may” in the Smith case, but the full context of that sentence is simply a deferential recognition by the Supreme Court that trial judges may use different procedures to ferret out the bias. Some hearings may be held at the time of the occurrence, while others may be held at the close of the evidence. The trial court, rather than conduct an interrogation or further investigation, may declare a mistrial, or the trial judge may believe there is no proof of a colorable basis of bias. It would be a mockery of justice to say that the sentence relied upon by the majority reduces the application of the constitutional mandate required of state courts to a matter of discretion when there exists a clear, colorable claim of bias. In this case, as in many other state habeas cases, the trial court owed a duty to “determine the effect of such occurrences when they happened.” Smith, 455 U.S. at 217 , 102 S.Ct. 940 .

The majority now emphasizes that in a number of cases, such as Remmer , the duty to investigate juror bias is only necessary where an outside source wrongfully tampers with jurors. I respectfully submit this is a total non-sequitur. The question of impartiality is determined by the juror’s state of mind and does not turn upon how or why the juror came to possess a bias or prejudge the case before it is tried. In the present case, we will never know the source of the two jurors’ bias due to the trial court’s failure to make any inquiry of the two jurors whatsoever. 7

A number of other Supreme Court cases further emphasize the trial court’s duty to *1051 investigate claims of juror bias. In Parker v. Gladden, 385 U.S. 363 , 87 S.Ct. 468 , 17 L.Ed.2d 420 (1966) (per curiam), the Court granted a petition for a writ of habeas corpus because the bailiff told a juror he felt the petitioner was guilty. The court found the bailiffs comments violated the petitioner’s right to a fair trial even though the comments were privately conveyed to only one juror. Id. at 365-66 , 87 S.Ct. 468 .

In Turner v. Louisiana, 379 U.S. 466, 472 , 85 S.Ct. 546 , 13 L.Ed.2d 424 (1965), the Court granted a new trial to the petitioner because jurors had inappropriate contact with key witnesses. The Court noted “[t]he requirement that a jury’s verdict must be based upon the evidence developed at the trial goes to the fundamental integrity of all that is embraced in the constitutional concept of trial by jury.” (Internal quotations omitted).

Patterson v. Colorado, 205 U.S. 454, 462 , 27 S.Ct. 556 , 51 L.Ed. 879 (1907), provides strong language to support Tracey’s petition. The Court said “[t]he theory of our [jury] system is that conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.” Id. at 462 , 27 S.Ct. 556 (emphasis added).

The Supreme Court has previously held in Ham v. South Carolina, 409 U.S. 524 , 93 S.Ct. 848 , 35 L.Ed.2d 46 (1973), that where circumstances suggested a need for voir dire to include questioning about racial prejudice, such questions must be permitted. Id. at 527, 93 S.Ct. 848 . Cf., Groppi v. Wisconsin, 400 U.S. 505, 508-09 , 91 S.Ct. 490 , 27 L.Ed.2d 571 (1971); see also Mu’Min, 500 U.S. at 430-31 , 111 S.Ct. 1899 (holding that where jurors have acquired knowledge of a ease from an outside source, such jurors must be asked whether the information caused them to form an opinion about the guilt or innocence of the defendant). The Court in Sheppard v. Maxwell, 384 U.S. 333 , 86 S.Ct. 1507 , 16 L.Ed.2d 600 (1966), came to a similar conclusion, holding that the trial judge’s failure to protect jurors from publicity surrounding the case deprived the defendant of a fair trial. The Court criticized the trial judge’s failure to ask the jurors “whether they had read or heard specific prejudicial comments] about the case ...” Id. at 357 , 86 S.Ct. 1507 .

The greatest concern in selecting a jury is to make certain that jurors do not have preconceived opinions or judgments as to the basic issue in the case. In the present case, we will never know why these jurors prejudged the defendant as guilty. The trial judge never inquired further to ascertain the source of their biased opinions. Assume one of these jurors testified that her opinion was formed before trial by reading an excerpt of the case in the newspaper; or that an outside source had approached her before trial; or assume one of these jurors might have said that she felt that anyone charged with a crime was guilty of a crime — reviewing courts will never know the basis of her prejudgment because the trial court failed to investigate the source of the obvious bias.

I am not aware of any case in the United States, particularly those of the Supreme Court of the United States, that condones a state trial judge’s failure to investigate the report of jurors expressing an opinion that the defendant is guilty before the trial commenced. Surely, the constitutional mandate as interpreted by the Supreme Court requires more than the expression of indifference that was expressed by the state trial judge in refusing to further investigate the report of juror bias. 8

*1052 It is difficult to understand, particularly in a serious case that involves a charge of first degree murder, that a trial judge would allow two jurors to sit on the jury who have expressed opinions of the defendant’s guilt and who have obviously prejudged the case. Juror Arganbright was excused from jury service based on her credible admission that she lacked impartiality. There exists no reason to disbelieve her account that the other two jurors made such statements about Tracey’s guilt. It is difficult to believe that any of the trial judge’s instructions would purge either juror of their bias. I find nothing in the majority opinion which in any way justifies the state trial judge’s failure to make further investigation of the expressions of obvious bias. I submit this was grievous error and constitutes a miscarriage of justice. Tracey’s counsel could do nothing more than object to the trial judge’s ruling. He is to be commended for that. Yet, his sound and accurate objection fell upon deaf ears in the state court as well as in all proceedings up to now. I would order a conditional grant of the petition for a writ of habeas corpus; unless the State of Oregon grants a new trial within 120 days of our mandate, the writ should be granted unconditionally.

.In footnote 2, the majority opinion recites: In light of this testimony regarding the other two jurors and the contents of the note, both of which we have quoted in their entirety, we do not agree with the dissent’s major premise that two jurors on the jury panel thought Tracey was guilty. Dissent at 1045-46, 1050. The record read as a whole simply does not support this broad conclusion. While Arganbright begins her note explaining that two jurors prejudged the case, Arganbright’s note continues on to explain and specify that one juror had bad feelings and one made an off-hand remark about the outcome of the case. Then, when pressed when she appeared before counsel and the court, Ms. Arganbright’s testimony was far from clear. It is unclear whether the "bad feelings” comment was made after jury selection or before. Similarly vague is the timing of the "is there any question” comment. The record also shows that Ar-ganbright's memory on the timing of these events was hazy and her answers changed during questioning. Thus, we cannot agree with our colleague in dissent that from this record that the only reasonable conclusion is that two jurors thought that Tracey was guilty before the introduction of the majority of the evidence.

I do not want to appear overly argumentative, but Arganbright's note to the trial judge stated: "Before the jury was selected in talking to two women in line to use the restroom both expressed they felt he was guilty .... ” In all due respect, the majority justifies its opinion by completely ignoring the record that Arganbright stated that "both [jurors] expressed they felt he was guilty.” I cannot imagine a more colorable showing of bias when Arganbright reported that both jurors, before trial, expressed an opinion that they felt the defendant was guilty. The jurors also said, in the same context, that they had "bad feelings about him” and that there was no question as to the verdict.

. The majority asserts that although the state trial judge was not required to hold a hearing, a "hearing was in fact held.” Maj. Op. at 1045. In all due respect, this is a misreading of the record. The trial judge held an in camera hearing with Arganbright because she initially stated in her note that she could not be impartial because she felt sorry for Tracey. The questioning of Arganbright did not investigate the colorable bias of the other two jurors who stated that they felt Tracey was guilty. After extensive investigation, the trial judge excused her because he found she was emotionally unfit to serve as a juror. The hearing had absolutely nothing to do with investigating the state of mind of the other two jurors.

. Counsel's objection was as follows:

(Emphasis added).

. The trial judge may have overlooked the full context of Arganbright’s note, since its author was primarily requesting that she be excused from jury duty due to her own emotional state.

. See, e.g., Mason v. Mitchell, 320 F.3d 604, 636 (6th Cir.2003) (noting defendant must be guaranteed an impartial and fair jury); Jones v. Cooper, 311 F.3d 306, 310 (4th Cir.2002) (holding state must provide impartial juries); Williams v. Woodford, 306 F.3d 665, 723 (9th Cir.2002) (noting Sixth Amendment guarantees the right to impartial jurors); Green v. White, 232 F.3d 671, 676 (9th Cir.2000) (holding a juror's bias against a defendant taints the entire trial); United States v. McClinton, 135 F.3d 1178, 1188 (7th Cir.1998) (noting the trial judge correctly safeguarded the defendant’s Sixth Amendment right by questioning potentially biased jurors in detail and in a manner that allowed counsel to participate); Barry v. Bergen County Prob. Dep't, 128 F.3d 152, 163 (3d. Cir.1997) (stating due process requires a trial by an impartial jury); United States v. Lacey, 86 F.3d 956, 969 (10th Cir.1996) (emphasizing the importance of questioning potentially biased jurors in a hearing); Jordan v. Lippman, 763 F.2d 1265, 1267 (11th Cir.1985) (holding a defendant's constitutional rights are violated when the jury is not impartial); United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.1977) (holding defendant is denied his Sixth Amendment right when one juror is biased); Oswald v. Bertrand, 249 F.Supp.2d 1078 (E.D.Wisc.2003) (granting petitioner's writ of habeas corpus because the state trial judge failed to inquire of a potential juror who indicated that he would vote either way to end the trial); United States ex rel. Hawthorne v. Cowan, 224 F.Supp.2d 1178, 1188 (N.D.Ill.2002) (stating due process requires a jury willing to decide a case on the evidence before it); Swindler v. State, 267 Ark. 418 , 592 S.W.2d 91, 94 (1979) (stating defendants must be afforded an impartial jury during trial); In re Hitchings, 6 Cal.4th 97 , 24 Cal.Rptr.2d 74 , 860 P.2d 466, 472 (1993) (noting the right to an impartial jury is embedded in the Constitution and in case law); People v. Cole, 54 Ill.2d 401 , 298 N.E.2d 705, 711 (1973) (stating fairness requires the accused receive a trial before an impartial jury); People v. Daoust, 228 Mich.App. 1 , 577 N.W.2d 179, 183 (1998) (emphasizing that defendants are constitutionally entitled to be tried before an impartial jury); State v. Greer, 635 N.W.2d 82, 87 (Minn.2001) (noting both the United States and Minnesota Constitutions guarantee the right of an accused to be tried by an impartial jury); Mhoon v. State, 464 So.2d 77, 80 (Miss.1985) (noting the fundamental requirement of a fair trial is an impartial jury); Collins v. State, 589 P.2d 1283, 1289 (Wyo.1979) (stating the Constitution requires a panel of indifferent, impartial jurors).

. In Aldridge v. United States, 283 U.S. 308 , 51 S.Ct. 470 , 75 L.Ed. 1054 (1931), a case dealing with racial prejudice, the Supreme Court observed:

Id. at 314 , 51 S.Ct. 470 .

. Page 1044 of the majority opinion recites:

. It should also be noted that the majority relies on dictum from other Ninth Circuit cases, but fails to cite or heed the ruling of Dyer v. Calderon, 151 F.3d 970 (9th Cir.1998). *1052 In Dyer , the petitioner filed a writ of habeas from his state court conviction, claiming his Sixth Amendment rights were violated because the jurors were biased. The court set forth the analysis for evaluating a writ of habeas alleging juror bias:

Id. at 974-75. The majority thus has not followed the Ninth Circuit’s interpretation of Remmer because Tracey unquestionably presented the state trial judge with a colorable claim of juror bias. Further, the trial judge did not conduct an investigation that was “reasonably calculated to resolve the doubts raised about the juror's impartiality.” Id.