appellate counsel is incompetent simply for failing to raise a particular issue. Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). Bourne must show that the issue his appellate counsel failed to raise was “clearly stronger” than the issues his counsel did raise, id.—and that the state court lacked a reasonable basis for believing otherwise. Although the arguments that Bourne’s appellate counsel raised were ill-fated, the state court reasonably concluded that the jury-communication argument was not “clearly stronger.” As described above, Bourne’s counsel could have reasonably believed that the trial court’s ex parte denial of the jury’s request was subject to review for harmless error. See also People v. France, 436 Mich. 138, 461 N.W.2d 621, 630-632 (1990) (<HOLDING>). And Bourne’s appellate counsel could have
holding that federal common law allows ex parte interviews as discovery tool and controls even when state law supplies the rule of decision holding that minnesota law prohibiting ex parte interviews was not integral to its privilege law but was merely procedural rule and therefore not controlling in diversity action and the federal rules allow ex parte interviews as method of informal discovery holding that an ex post facto claim can only be successful if the law can be characterized as punishment in the constitutional sense recognizing that ex parte communications regarding strictly administrative matters are not sufficient to grant a motion to disqualify a judge holding that judges ex parte communications with juries can be harmless under state law as well