Tarango

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 be *940 tween 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…

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. 1 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…