McNeil

MEMORANDUM **

Federal prisoner Troy McNeil appeals the district court’s denial of his 28 U.S.C. § 2254 petition challenging his conviction. We review the district court’s dismissal of a petition for habeas corpus de novo. Williams v. Taylor, 529 U.S. 362, 384 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000). We affirm.

McNeil claims that an ex parte communication between the judge and a juror during sentencing deliberations violated his Sixth Amendment right to counsel. McNeil’s argument that an ex parte communication is a structural constitutional error requiring automatic reversal is foreclosed by the Supreme Court’s decision in Rushen v. Spain, 464 U.S. 114, 117-19 , 104 S.Ct. 453 , 78 L.Ed.2d 267 (1983) (holding that absent a showing of actual prejudice, an ex parte communica *902 tion between a judge and juror does not require automatic reversal and is subject to the harmless error analysis). 1 Because the Supreme Court has never held that an ex parte communication is a structural error, such a ruling is not dictated by Supreme Court precedent. Were we to adopt it now such a ruling would be barred by Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989). Moreover,…