William Barnes v. Kenneth Lassiter
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:08-cv-00271-TDS-JEP. [999349750]. [13-5]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-5
WILLIAM LEROY BARNES,
Petitioner - Appellant,
v.
CARLTON JOYNER,
Carolina,
Warden,
Central
Prison,
Raleigh,
North
Respondent – Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cv-00271-TDS-JEP)
Argued:
January 29, 2014
Decided:
May 5, 2014
Before AGEE, FLOYD, and THACKER, Circuit Judges.
Reversed and remanded by published opinion.
the opinion, in which Judge Floyd joined.
dissenting opinion.
Judge Thacker wrote
Judge Agee wrote a
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellant.
Jonathan
Porter Babb, Sr., NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee.
ON BRIEF: George B. Currin,
CURRIN & CURRIN, PA, Raleigh, North Carolina, for Appellant.
Roy Cooper, Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.
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THACKER, Circuit Judge:
Petitioner William Leroy Barnes (“Barnes”), an inmate
on
North
Carolina’s
death-row,
appeals
the
district
court’s
denial of his petition for writ of habeas corpus against Carlton
Joyner, Warden of the Central Prison in Raleigh, North Carolina
(hereinafter, the “State”).
In 1994, after a jury trial in
North Carolina state court, Barnes was convicted of first-degree
murder
and
sentenced
to
death.
Immediately
after
the
jury
returned its sentencing recommendation, Barnes alleged to the
state trial judge that one of the jurors discussed the death
penalty
with
her
pastor
the
previous
day.
The
trial
denied Barnes’ request to inquire further into the matter.
court
The
Supreme Court of North Carolina affirmed Barnes’ conviction and
sentence on direct appeal, concluding, among other things, that
Barnes had not proven that the alleged contact between the juror
and her pastor prejudiced Barnes or denied him the right to an
impartial jury.
In February 1999, Barnes sought state post-conviction
relief on various grounds by filing a Motion for Appropriate
Relief.
In his Motion for Appropriate Relief, Barnes reasserted
his claim of juror misconduct and presented additional evidence
to demonstrate that a sitting juror improperly communicated with
her pastor about the death penalty during the sentencing phase
of
Barnes’
trial
and
then
relayed
2
the
information
to
other
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jurors.
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Despite this additional information, the state post-
conviction
court
summarily
denied
Barnes’
claim
without
conducting an evidentiary hearing, adopting the same analysis as
the Supreme Court of North Carolina.
After
considering
the
various
arguments
raised
in
Barnes’ federal habeas petition, the district court concluded
that the state court’s adjudication of Barnes’ juror misconduct
claim was not contrary to, or an unreasonable application of,
clearly established federal law.
However, the district court
granted a certificate of appealability, pursuant to 28 U.S.C. §
2253(c)(2), on the issue of whether a juror’s contact with her
pastor violated Barnes’ Sixth Amendment right to a fair trial.
For
the
reasons
that
follow,
we
conclude
that
the
state post-conviction court’s failure to apply a presumption of
prejudice and failure to investigate Barnes’ juror misconduct
claim, which was based on an external influence on the jury, was
an unreasonable application of clearly established federal law.
Therefore, we reverse the district court’s judgment and remand
for
an
court’s
evidentiary
failures
had
hearing
a
to
determine
substantial
influence on the jury’s verdict.
3
and
whether
injurious
the
state
effect
or
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I.
A.
On
October
30,
1992,
at
around
12:30
a.m.,
police
officers from Salisbury, North Carolina, found B.P. and Ruby
Tutterow shot to death in their home.
The house was ransacked,
and a number of the Tutterows’ belongings were missing.
Later
that day, Barnes and his co-defendants, Frank Junior Chambers
and Robert Lewis Blakney, were arrested in connection with the
killings.
counts
of
Each
defendant
first-degree
was
murder,
subsequently
two
counts
indicted
of
robbery
dangerous weapon, and one count of first-degree burglary.
on
two
with
a
After
a joint capital trial, the jury returned verdicts finding Barnes
and his co-defendants guilty of all charges, including firstdegree
murder
on
felony murder rule.
the
theory
of
premeditation
and
under
the
Barnes’ guilt is not at issue here. 1
This capital trial proceeded to the sentencing phase,
where the jury was charged with determining whether the crimes
committed by Barnes and his co-defendants warranted a sentence
of death or of life imprisonment.
2000.
See N.C. Gen. Stat. § 15A-
During the closing arguments of the sentencing phase, an
1
The Supreme Court of North Carolina summarized the facts
underlying Barnes’ conviction in its opinion denying Barnes
relief on direct appeal.
See State v. Barnes, 481 S.E.2d 44,
51-53 (N.C. 1997), cert. denied, 523 U.S. 1024 (1998).
4
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attorney representing co-defendant Chambers stated, in pertinent
part, as follows:
If you’re a true believer and you believe that Frank
Chambers will have a second judgment day, then we know
that all of us will too.
All of us will stand in
judgment one day.
And what words is it that a true
believer wants to hear?
[“]Well done, my good and
faithful servant. You have done good things with your
life.
You have done good deeds.
Enter into the
Kingdom of Heaven.[”] Isn’t that what a true believer
wants to hear?
Or does a true believer want to
explain to God, [“]yes, I did violate one of your
commandments.
Yes, I know they are not the ten
suggestions.
They are the ten commandments.
I know
it says, Thou shalt not kill, but I did it because the
laws of man said I could.[”]
You can never justify
violating a law of God by saying the laws of man
allowed it.
If there is a higher God and a higher
law, I would say not.
To be placed in the predicament that the State has
asked you to place yourself in, is just that.
To
explain when your soul is at stake.
[“]Yes, I know
the three that I killed were three creatures of yours,
God. And that you made them in your likeness. I know
you love us all, but I killed them because the State
of North Carolina said I could.[”]
Who wants to be
placed in that position? I hope none of us. And may
God have mercy on us all.
J.A. 1532-33. 2
The prosecution did not object at any point
during this argument.
The next day, the jury recommended that Barnes and
Chambers be sentenced to death for each murder and that Blakney
be sentenced to a mandatory term of life imprisonment for each
2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
5
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murder.
and
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After the jury returned its sentencing recommendations
exited
the
courtroom,
the
following
colloquy
took
place
between the court and defense counsel:
THE COURT: I take it everyone wants
Notice of Appeal. Is that correct?
to
enter
some
MR. HARP [CHAMBERS’ COUNSEL]:
The first thing we
would like to get in is that late yesterday afternoon
we were informed, after talking to alternate jurors,
that on Tuesday, before deliberation and before
instructions were given by the Court, one of the
jurors carried a Bible back into the jury room and
read to the other jurors from that. That it was also
discovered by us that one of the jurors, one of the
other jurors, called a member of the clergy, perhaps a
relative of hers, to ask her about a particular
question as to the death penalty.
We also informed
you of it this morning at ten o’clock and that we need
to enter that on the record for purposes of preserving
that.
MR. FRITTS [BARNES’ COUNSEL]: Judge, for Mr. Barnes we
join in on that.
We would for those reasons make a
Motion for Mistrial and we would request the Court to
inquire of the jurors, and I understand the Court’s
feelings on that, but that would be our request.
THE COURT: No evidence that anybody discussed the
particular facts of this case with anybody outside the
jury. Is that correct?
MR. HARP: No evidence that they did or did not as far
as the conversation with the minister is concerned.
THE COURT: No evidence that they did though.
correct?
Is that
MR. HARP: No, sir.
THE COURT: All right.
Well, I’m going to deny the
request to start questioning this jury about what may
or may not have taken place during their deliberations
of this trial.
6
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J.A. 1601-03.
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Thereafter, the trial court denied the defense’s
post-sentence motions and rejected their request to conduct an
evidentiary hearing with respect to juror misconduct.
On
March
10,
1994,
the
court
sentenced
Barnes
and
Chambers to death, and Blakney to life imprisonment, for their
first-degree murder convictions.
was sentenced
to
armed
and
robbery
burglary.
two
one
In addition, each defendant
terms
of
forty
years’
imprisonment
for
term
of
forty
years’
imprisonment
for
All sentences were to be served consecutively.
B.
Barnes
appealed
his
conviction
and
sentence
Supreme Court of North Carolina on various grounds.
to
the
Relevant
here is Barnes’ Sixth Amendment juror misconduct argument, which
was
based
on
two
alleged
occurrences:
first,
that
a
“juror
called a minister to ask a question about the death penalty;”
and second, “that a juror had taken a Bible into the jury room
and
read
to
the
jury
members
from
it
before
deliberations.”
State v. Barnes, 481 S.E.2d 44, 66 (N.C. 1997).
that
“the
trial
court
erred
in
failing
Barnes argued
to
conduct
an
investigation to determine what, if any, prejudice resulted from
the alleged events.”
Id. at 67.
The Supreme Court of North
Carolina disagreed, offering the following reasoning:
Assuming arguendo that defense counsel’s assertions
were accurate, there still was no assertion that the
juror’s reading from the Bible was accomplished in the
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context of any discussion about the case itself or
that it involved extraneous influences as defined by
this Court.
The issue, therefore, is whether the
trial court abused its discretion by failing to
inquire
further
into
the
alleged
Bible-reading
incident when faced with the mere assertion that a
juror read the Bible aloud in the jury room prior to
the commencement of deliberations and prior to the
trial court’s instructions to the jury.
As there is
no evidence that the alleged Bible reading was in any
way directed to the facts or governing law at issue in
the case, we cannot say that the trial court’s actions
were an abuse of discretion.
With respect to a juror’s alleged actions in calling a
clergy member, a similar analysis applies.
The trial
court
was
faced
with
the
mere
unsubstantiated
allegation that a juror called a minister to ask a
question about the death penalty.
Nothing in this
assertion
involved
“extraneous
information”
as
contemplated in [North Carolina Rule of Evidence]
606(b) or dealt with the fairness or impartiality of
the juror.
There is no evidence that the content of
any such possible discussion prejudiced defendants or
that
the
juror
gained
access
to
improper
or
prejudicial matters and considered them with regard to
this case.
We cannot say under the particular
circumstances of this case that the trial court’s
actions in failing to probe further into the sanctity
of the jury room was an abuse of discretion.
These
assignments of error are therefore without merit.
Id. at 68.
The Supreme Court of North Carolina likewise rejected
Barnes’
other
conviction
and
contentions
sentence
S.E.2d at 51, 82.
on
on
direct
February
appeal
10,
and
1997.
affirmed
his
Barnes,
481
On March 23, 1998, the Supreme Court of the
United States denied Barnes’ petition for a writ of certiorari.
See Barnes v. North Carolina, 523 U.S. 1024 (1998).
8
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C.
In February 1999, Barnes sought state post-conviction
relief
on
various
grounds,
filing
a
Motion
for
Appropriate
Relief (“MAR”) in Rowan County Superior Court (the “MAR Court”). 3
Barnes
amended
September
4,
his
2002. 4
MAR
on
January
24,
With
respect
to
2001,
his
and
claim
again
of
on
juror
misconduct, Barnes offered new information to the MAR Court to
try
to
demonstrate
that
Hollie
Jordan
(“Juror
Jordan”),
a
sitting juror, improperly communicated with her pastor about the
death
penalty
during
the
sentencing
phase
of
Barnes’
trial.
This new information was presented through a number of exhibits
compiled
by
post-conviction
counsel
and
their
investigator,
which were based on post-verdict interviews with several of the
jurors. 5
3
A MAR is North Carolina’s procedural mechanism for state
post-conviction review. See N.C. Gen. Stat. §§ 15A-1401, 1411.
Although a “MAR is not identical to a habeas corpus petition,
. . . it provides an avenue to obtain [post-conviction] relief
from ‘errors committed in criminal trials.’” Conaway v. Polk,
453 F.3d 567, 576 n.8 (4th Cir. 2006) (quoting N.C. Gen. Stat. §
15A-1401).
4
For simplicity, we refer to the most current version as
the “MAR.”
5
For purposes of Barnes’ habeas petition, we assume the
truth of the factual allegations contained in his evidentiary
affidavits presented to the MAR Court.
See Robinson v. Polk,
438 F.3d 350, 358 (4th Cir. 2006) (citing Bacon v. Lee, 225 F.3d
470, 485 (4th Cir. 2000)).
9
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One of the exhibits attached to Barnes’ MAR was an
“Interview Summary” of a May 31, 1995 interview of Juror Jordan. 6
According to the Interview Summary, Juror Jordan was offended by
the closing argument in which co-defendant Chambers’ attorney
argued “that if jurors voted for the death penalty, they would
one day face God’s judgment for killing these defendants.”
1898.
Although
Juror
Jordan
“did
not
accept
the
J.A.
attorney’s
argument,” she did notice “that another juror, a female, seemed
visibly
upset”
by
it.
Id.
“To
remedy
the
effect
of
the
argument, [Juror] Jordan brought a Bible from home into the jury
deliberation room” and read a passage to all the jurors, which
provided “that it is the duty of Christians to abide by the laws
of the state.”
Id.
The Interview Summary does not mention any
conversation with Juror Jordan’s pastor; it states that Juror
Jordan knew the Bible passage from church.
In
addition
to
Juror
Jordan’s
Interview
Summary,
Barnes’ MAR relied on a September 7, 2000 affidavit from Daniel
C. Williams (“Investigator Williams”), an investigator hired by
Barnes’ post-conviction counsel.
Williams
described
interviews
he
6
In his affidavit, Investigator
conducted
with
three
jurors
On June 1, 2000, Juror Jordan signed the bottom of the
Interview Summary, acknowledging, “[t]he summary is an accurate
description of what [she] said to Janine Crawley and Alexander
McCoy [members of Barnes’ direct appeal team] on May 31, 1995.”
J.A. 1898.
10
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from
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Barnes’
trial,
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including
Juror
Jordan.
According
to
Investigator Williams, Juror Jordan explained, “she called her
pastor
Tom
attorney’s
Lomax”
(“Pastor
Lomax”)
closing
argument
in
in
which
response
the
to
a
attorney
defense
“suggested
that if jurors returned a death sentence, they, the jurors[,]
would one day face judgment for their actions.”
J.A. 1892.
Juror Jordan stated that she “discussed the lawyer’s argument
with [Pastor] Lomax.”
Id.
During their conversation, “[Pastor]
Lomax told [Juror] Jordan about another biblical passage which
contradicted the passage relied upon by the defense attorney.”
Id.
The next day, Juror Jordan brought her Bible into the jury
deliberation
room
and
“read
the
passage
[Pastor] Lomax to all of the jurors.”
Investigator
Williams
also
suggested
to
her
by
Id.
interviewed
jurors
Leah
Weddington (“Juror Weddington”) and Ardith F. Peacock (“Juror
Peacock”),
brought
a
both
of
Bible
deliberations.
whom
into
recalled
the
that
jury
a
room
member
during
of
the
jury
sentencing
Juror Weddington told Investigator Williams that
“[t]he person who brought in the Bible read a passage to a juror
who was having a hard time with the death penalty.”
93.
J.A. 1892-
Juror Peacock could not recall the details of the verse,
but she stated that it “dealt with life and death.”
1893.
In
a
separate
affidavit
dated
April
7,
2004,
Id. at
Juror
Peacock stated that a defense attorney’s remarks that jurors
11
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would have to face God’s judgment if they imposed the death
penalty “made the jury furious.”
Id. at 1900.
In response to
this argument, one of the jurors read a passage from the Bible
to the other jurors.
Juror Peacock did not recall which juror
brought the Bible or the exact verse that was read.
Investigator Williams also interviewed Pastor Lomax.
Pastor Lomax confirmed that Juror Jordan attends his church.
Moreover,
although
Pastor
Lomax
“could
not
recall
the
conversation recounted by [Juror] Jordan,” he “stated that it
[was] possible that he did talk to her about the death penalty
while she was a juror, but he simply does not remember it.”
J.A. 1893.
Barnes’
MAR
affidavit
of
Cynthia
Carolina
Resource
several jurors.
also
F.
attached
Adcock,
Center,
which
an
an
October
attorney
recounted
10,
2000
the
North
interviews
with
with
According to Ms. Adcock, in a February 25, 1995
interview, Juror Weddington stated that “a juror named ‘Hollie’
brought a Bible into the jury room and read from it” and that
“Hollie also talked to her pastor during the case.”
J.A. 1902.
Additionally, Ms. Adcock’s affidavit explains that in a separate
February 25, 1995 interview, Juror Wanda Allen (“Juror Allen”)
“recalled discussions about the fact that one of the jurors had
brought in a [B]ible and had talked with her pastor.”
12
Id.
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Relying on this new information, Barnes contended that
there was juror misconduct during the sentencing phase of his
trial.
On March 19, 2007, the MAR Court held an evidentiary
hearing on some, but not all, of the claims raised in Barnes’
MAR.
Importantly, the MAR Court did not conduct an evidentiary
hearing on Barnes’ juror misconduct claim.
Instead, the MAR Court “summarily denied” the juror
misconduct claim, holding that it was “procedurally barred and
without merit” under N.C. Gen. Stat. § 15A-1419(a)(2) because
the
issue
had
previously
been
addressed
and
rejected
Supreme Court of North Carolina on direct appeal. 7
The
MAR
Court
further
concluded
that
Barnes’
by
the
J.A. 1882-83.
“argument
that
there is now additional evidence which was not available at that
7
Pursuant to North Carolina law, a claim is “procedurally
barred” for purposes of MAR review if, among other things,
“[t]he ground or issue underlying the motion was previously
determined on the merits upon an appeal from the judgment or
upon a previous motion or proceeding in the courts of this State
or a federal court.”
N.C. Gen. Stat. § 15A-1419(a)(2).
As we
have recognized, “[a]lthough North Carolina courts refer to the
subsection 15A-1419(a)(2) bar as a ‘procedural bar’ for purposes
of reviewing a state court defendant’s MAR, it is not a state
procedural bar for purposes of federal habeas review.” Brown v.
Lee, 319 F.3d 162, 170 n.2 (4th Cir. 2003).
Subsection (a)(2)
simply precludes MAR review -- not federal habeas review -- of a
claim that was previously raised by a state defendant and
rejected on the merits. Id. (explaining that subsection (a)(2)
“states a rule of res judicata and law of the case, precluding
re-litigation of the claim [through] the MAR proceeding”).
Therefore, we are not precluded from reviewing Barnes’ juror
misconduct claim.
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time is without foundation or support, and [Barnes] seeks to
present anew the same contentions and inferences raised in his
initial appeal.”
allegedly
new
Id. at 1883.
evidence
adds
The court explained, “[t]he
nothing
to
the
issue
as
it
was
presented during [Barnes’] original appeal, and the allegations
are subject to the same analysis inherent in [the Supreme Court
of
North
Court
Carolina’s]
entered
an
decision.”
order
on
raised in Barnes’ MAR.
North
Carolina
denied
Id.
May
31,
Consequently,
2007,
denying
all
the
MAR
claims
On March 6, 2008, the Supreme Court of
Barnes’
request
for
certiorari
review.
See State v. Barnes, 660 S.E.2d 53 (N.C. 2008).
D.
On April 17, 2008, Barnes filed a Petition for Writ of
Habeas
Corpus,
pursuant
to
28
U.S.C.
§
2254,
in
the
United
States District Court for the Middle District of North Carolina.
Just as he did in his MAR, Barnes raised a number of challenges
to
his
conviction
and
during his sentencing.
Magistrate
Judge
sentence,
including
juror
misconduct
On February 3, 2012, a United States
issued
a
report
and
recommendation,
recommending that all claims in the petition be denied.
Barnes
v. Branker, 1:08-CV-271, 2012 WL 373353, at *39 (M.D.N.C. Feb.
3, 2012).
On March 28, 2013, after concluding that the issues
raised by Barnes did not require a hearing, the district court
adopted
the
magistrate
judge’s
14
recommendation
and
issued
an
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opinion and order denying Barnes’ habeas petition.
See Barnes
v.
*6-7,
Lassiter,
1:08-CV-00271,
(M.D.N.C. Mar. 28, 2013).
2013
WL
1314466,
at
*20
The district court, however, granted
a certificate of appealability (“COA”), pursuant to 28 U.S.C.
§ 2253(c)(2), on the issue of whether a juror’s contact with her
pastor violated Barnes’ Sixth Amendment right to a fair trial.
Id. at *20.
Barnes timely appealed. 8
We possess jurisdiction
pursuant to 28 U.S.C. § 2253.
II.
A.
“We review de novo the district court’s application of
the
standards
of
28
U.S.C.
§
conclusions of the MAR court.”
210 (4th Cir. 2007).
2254(d)
to
the
findings
and
McNeill v. Polk, 476 F.3d 206,
In conducting our habeas review, we are
restricted to the question of whether a state prisoner “is in
custody in violation of the Constitution or laws or treaties of
the United States.”
McGuire,
502
U.S.
28 U.S.C. § 2254(a); see also Estelle v.
62,
68
(1991).
Moreover,
because
we
are
engaging in collateral review of a state court adjudication, our
8
In his Opening Brief, Barnes requested an additional COA
from this Court, seeking consideration of a claim relating to a
Batson violation.
See Batson v. Kentucky, 476 U.S. 79, 89
(1986) (prohibiting purposeful racial discrimination in jury
selection as a violation of the Equal Protection Clause).
We
denied Barnes’ request for an additional COA and struck the
Batson claim from Barnes’ brief.
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authority to grant relief is constrained by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”).
See DeCastro
v. Branker, 642 F.3d 442, 449 (4th Cir. 2011) (citing 28 U.S.C.
§ 2254(d)).
Under AEDPA, we may grant habeas relief on a claim
that has been previously adjudicated “on the merits” 9 in state
court only if that adjudication “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.”
28 U.S.C. § 2254(d)(1). 10
9
Barnes argued in the district court that the MAR Court
“failed to adjudicate the merits of [his] properly presented
claim and, thus, [the district court] must review [his claim] de
novo.” J.A. 2135 n.7. However, as the district court correctly
concluded, the MAR Court did in fact adjudicate the merits of
Barnes’ juror misconduct claim. Indeed, the MAR Court concluded
that the claim was “procedurally barred and without merit”
because it “was presented in [his] direct appeal . . . and was
directly addressed by the Supreme Court of North Carolina and
rejected by that court.”
Id. at 1882-83.
With respect to
Barnes’ new evidence, the MAR Court noted that it “add[ed]
nothing to the issue as it was presented during [Barnes’]
original appeal.”
Id. at 1883.
The MAR Court therefore
incorporated the “same analysis inherent in [the direct appeal]”
to the new evidence.
Id.
This was an adjudication on the
merits, though it was done summarily and by incorporating the
Supreme Court of North Carolina’s earlier analysis. See Bell v.
Jarvis, 236 F.3d 149, 163 (4th Cir. 2000) (en banc) (explaining
that even a summary adjudication, where “the state court fails
to
articulate
the
rationale
behind
its
ruling,”
is
an
adjudication on the merits for purposes of § 2254(d) deference).
10
We may also grant relief if the state court adjudication
“resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the
State
court
proceeding.”
28
U.S.C.
§
2254(d)(2).
Subsection (d)(2) is not implicated in this appeal.
16
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A
state
established
court’s
federal
law
Pg: 17 of 87
decision
“if
“contrary
state
the
is
court
to”
clearly
arrives
at
a
conclusion opposite to that reached by [the Supreme] Court on a
question of law,” or if it reaches a different result than the
Supreme
Court
previously
reached
indistinguishable set of facts.
362,
413
(2000).
“unreasonable
Further,
application”
of
a
on
a
materially
Williams v. Taylor, 529 U.S.
state
clearly
court’s
decision
established
is
federal
an
law
when the state court “identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.”
Id. at 413.
must
show
This means that to obtain relief, “a state prisoner
that
the
state
court’s
ruling
on
the
claim
being
presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.”
White
v. Woodall, --- U.S. ---, No. 12-794, 2014 WL 1612424, at *4
(Apr. 23, 2014) (internal quotation marks omitted).
Under
the
unreasonable
application
clause
of
§ 2254(d)(1), we look to whether the state court’s application
of law was “objectively unreasonable” and not simply whether the
state court applied the law incorrectly.
Robinson v. Polk, 438
F.3d 350, 355 (4th Cir. 2006); see also Williams, 529 U.S. at
411 (explaining that “a federal habeas court may not issue the
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writ
simply
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because
that
Pg: 18 of 87
court
concludes
in
its
independent
judgment that the relevant state-court decision applied clearly
established
federal
law
erroneously
or
incorrectly”).
The
phrase “clearly established Federal law” means “the holdings, as
opposed to the dicta, of [the Supreme] Court’s decisions as of
the time of the relevant state-court decision.”
Williams, 529
U.S. at 412.
B.
Even
if
we
conclude
that
the
state
court’s
adjudication was contrary to, or an unreasonable application of,
clearly established federal law, our inquiry is not over.
As we
have observed, “‘most constitutional errors can be harmless.’”
Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011) (quoting
Arizona v. Fulminante, 499 U.S. 279, 306 (1991)).
“we
are
not
permitted
to
grant
habeas
relief
Therefore,
unless
we
are
convinced that the error had a ‘substantial and injurious effect
or influence in determining the jury’s verdict.’”
Lee,
290
F.3d
663,
679
(4th
Cir.
2002)
Abrahamson, 507 U.S. 619, 637 (1993)).
Fullwood v.
(quoting
Brecht
v.
This means that before a
federal court grants habeas relief, it must conclude that the
state
court’s
constitutional
error
“actually
prejudiced”
the
habeas petitioner.
Bauberger, 632 F.3d at 104 (“Because of the
threat
attacks
collateral
pose
to
‘finality,
comity,
and
federalism,’ habeas petitioners may secure the writ only if the
18
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error
Filed: 05/05/2014
‘actual[ly]
omitted
and
Pg: 19 of 87
prejudice[d]’
alterations
in
them.”
original)).
(internal
It
is
citations
under
this
framework that we examine Barnes’ claim of juror misconduct.
III.
Barnes
argues
that
under
the
Sixth
and
Fourteenth
Amendments to the United States Constitution, he was deprived of
his right to an impartial jury at his capital sentencing because
at least one juror improperly communicated with her pastor and
relayed the information obtained from her pastor to the rest of
the jury.
As a result, Barnes contends that the jury considered
extraneous information that the parties did not introduce at
trial.
Relying on the Supreme Court’s decision in Remmer v.
United States, 347 U.S. 227 (1954), Barnes contends that the MAR
Court unreasonably applied clearly established federal law by
failing to attach a presumption of prejudice upon his showing of
an extraneous influence on the jury (the “Remmer presumption”).
In a related, but distinct argument, Barnes also contends that
the MAR Court unreasonably applied clearly established federal
law by failing to order the state trial court to hold a hearing
on juror misconduct, during which Barnes would be entitled to
the Remmer presumption, or, at a minimum, during which he would
have
the
opportunity
to
prove
the
extraneous influence.
19
prejudicial
impact
of
the
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The State counters by first arguing that there is no
clearly
established
federal
law
presented in the instant case.
applicable
to
the
situation
Thus, according to the State,
the MAR Court’s adjudication of Barnes’ juror misconduct claim
necessarily could not have been contrary to, or an unreasonable
application of, clearly established federal law.
The State next
argues that even if there is clearly established federal law
applicable here, the MAR Court did not unreasonably apply such
law because the communication between the juror and her pastor
was not “about the matter pending before the jury.”
347 U.S. at 229 (emphasis supplied).
this
means
Barnes
was
entitled
See Remmer,
According to the State,
to
neither
the
Remmer
presumption, nor to a hearing on the issue of juror misconduct.
Finally, the State contends that the district court correctly
applied
the
“substantial
order
to
AEDPA
and
grant
standard
injurious
habeas
--
which
effect”
relief
--
on
and
requires
proof
of
a
Barnes’
sentencing
in
that,
therefore,
an
evidentiary hearing in the district court was not required.
In light of our review under AEDPA, as well as the
parties’
following
arguments
three
summarized
issues:
(1)
above,
whether
we
must
there
address
was
the
clearly
established federal law governing Barnes’ juror misconduct claim
at the time of the MAR Court’s adjudication; (2) if so, whether
the MAR Court acted contrary to this clearly established law, or
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applied it unreasonably, in failing to order a hearing or apply
a presumption of prejudice after Barnes presented allegations
that
a
juror
communicated
with
her
pastor
about
the
death
penalty during Barnes’ sentencing; and (3) whether this error
had a substantial and injurious effect on Barnes’ sentencing.
See Hall v. Zenk, 692 F.3d 793, 799 (7th Cir. 2012) (employing
this three-step analysis on federal habeas review).
A.
Clearly Established Federal Law
The
Sixth
and
Fourteenth
Amendments
to
the
United
States Constitution guarantee a criminal defendant the right to
a trial by an impartial jury.
See U.S. Const. amend. VI; Irvin
v. Dowd, 366 U.S. 717, 722 (1961) (“In essence, the right to
jury trial guarantees to the criminally accused a fair trial by
a panel of impartial, indifferent jurors.
The failure to accord
an accused a fair hearing violates even the minimal standards of
due
process.”
(internal
quotation
marks
Louisiana, 379 U.S. 466, 471-73 (1965).
one
that
arrives
at
its
verdict
omitted));
Turner
v.
An impartial jury is
“based
upon
the
evidence
developed at trial” and without external influences.
Irvin, 366
U.S.
“No
at
722;
see
also
Remmer,
347
U.S.
at
229.
right
touches more the heart of fairness in a trial,” Stockton v.
Virginia, 852 F.2d 740, 743 (4th Cir. 1988), and this right
applies equally to sentencing proceedings that are tried to a
21
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jury,
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v.
Robinson
Pg: 22 of 87
F.3d
Polk,
438
350,
359
(4th
Cir.
2006)
(citing Morgan v. Illinois, 504 U.S. 719, 727-28 (1992)).
It
precedent
is
that
deliberations
clearly
an
external
violates
impartial jury.
established
a
under
influence
criminal
Supreme
affecting
defendant’s
Court
a
right
jury’s
to
an
See, e.g., Parker v. Gladden, 385 U.S. 363,
364-66 (1966) (per curiam); Turner, 379 U.S. at 472-73; Remmer,
347
U.S.
at
229.
Especially
troubling
communications between a juror and a third party.
are
private
See Fullwood
v. Lee, 290 F.3d 663, 677 (4th Cir. 2002) (“The Supreme Court
has
clearly
stated
outside
party
and
(citing
Parker,
that
a
private
juror
385
U.S.
raise
at
communications
Sixth
364)).
between
Amendment
Indeed,
it
an
concerns.”
is
well
established that “‘private talk, tending to reach the jury by
outside influence’ is constitutionally suspect.”
Parker, 385 U.S. at 364).
Id. (quoting
The Supreme Court recognized this as
early as 1892 when it declared that “[p]rivate communications,
possibly
prejudicial,
between
jurors
and
third
persons,
or
witnesses, or the officer in charge, are absolutely forbidden,
and invalidate the verdict, at least unless their harmlessness
is made to appear.”
Mattox v. United States, 146 U.S. 140, 150
(1892).
22
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1.
In light of these significant constitutional concerns,
the Supreme Court in Remmer created a rebuttable presumption of
prejudice applying to communications or contact between a third
party and a juror concerning the matter pending before the jury.
Remmer, 347 U.S. at 229; see also Fullwood, 290 F.3d at 678
(explaining
that
the
Supreme
Court
adopted
the
Remmer
presumption “[b]ecause the potential for mischief is so great
when a third party establishes private, extrajudicial contact
with a juror”).
In Remmer, a juror reported to the district judge that
an unnamed third party suggested to the juror that he could
profit by returning a defense verdict.
347 U.S. at 228.
The
judge assigned an FBI agent to investigate the incident, and the
agent reported to the judge “that the statement to the juror was
made in jest.”
judge
and
counsel.
incident
the
Id.
and
Id.
The agent’s report was reviewed by the
prosecutor
but
was
not
disclosed
to
defense
After trial, the defendant became aware of the
filed
a
motion
for
a
new
trial
in
which
he
requested a hearing “to determine the circumstances surrounding
the incident and its effect on the jury.”
Id.
Without holding
the requested hearing, the district court denied the motion.
Id.
at
district
229.
court
The
Ninth
did
not
Circuit
abuse
its
23
affirmed,
holding
discretion
in
that
the
denying
the
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motion for a new trial because the defendant failed to show
prejudice.
See Remmer v. United States, 205 F.2d 277, 291 (9th
Cir. 1953), vacated, 347 U.S. 227 (1954).
The
defendant
appealed
to
the
Supreme
Court,
which
vacated the Ninth Circuit’s judgment and remanded the case for a
hearing.
stated,
Remmer, 347 U.S. at 229-30.
“any
private
communication,
Specifically, the Court
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.”
Id.
(emphasis
supplied).
“The
presumption is not conclusive, but the burden rests heavily upon
the Government to establish, after notice to and hearing of the
defendant, that such contact with the juror was harmless to the
defendant.”
148-50). 11
Id. (emphasis supplied) (citing Mattox, 146 U.S. at
No such hearing was conducted by the district court
11
As we have observed, the rules of evidence “make it
difficult for either party to offer direct proof of the impact
that an improper contact may have had on the deliberations of
the jury.” Stockton, 852 F.2d at 743-44; see also Robinson, 438
F.3d at 359-60.
This is because both the Federal Rules of
Evidence and the North Carolina Rules of Evidence prohibit a
juror from testifying about his or her mental processes
concerning the verdict.
See Fed. R. Evid. 606(b); N.C. Gen.
Stat. § 8C-1, Rule 606(b). There is an exception, however, that
permits a juror to testify about “whether extraneous prejudicial
information was improperly brought to the jury’s attention or
whether any outside influence was improperly brought to bear on
any juror.”
N.C. Gen. Stat. § 8C-1, Rule 606(b); see Fed. R.
Evid. 606(b).
24
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in Remmer.
this
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As a result, the Supreme Court “[did] not know from
record,
nor
[did]
the
petitioner
know,
what
actually
transpired, or whether the incidents that may have occurred were
harmful or harmless.”
Id. at 229.
The Court further noted that when allegations of juror
partiality come to light, “[t]he trial court should not decide
and
take
final
action
received in this case.”
ex
parte
on
information
such
Remmer, 347 U.S. at 229-30.
as
was
Instead,
the trial court “should determine the circumstances, the impact
thereof upon the juror, and whether or not it was prejudicial,
in
a
hearing
participate.”
with
all
interested
Id. at 230.
parties
permitted
to
The Supreme Court remanded the case
to the district court with instructions that it hold a hearing
to determine whether the incident was harmful to the defendant.
Id.
The case eventually made its way back up to the Supreme
Court, at which time the Court explained that “[i]t was the
paucity of information relating to the entire situation coupled
with the presumption which attaches to the kind of facts alleged
by petitioner which, in [the Court’s] view, made manifest the
need for a full hearing.”
Remmer v. United States (“Remmer
II”), 350 U.S. 377, 379–80 (1956).
Thus,
Remmer
clearly
established
not
only
a
presumption of prejudice, but also a defendant’s entitlement to
an evidentiary hearing, when the defendant presents a credible
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allegation of communications or contact between a third party
and a juror concerning the matter pending before the jury.
We
proceed to discuss each of these aspects of Remmer in turn.
a.
With respect to the presumption of prejudice, we have
recently
observed,
regarding
whether
“there
the
is
Remmer
a
split
among
presumption
has
the
circuits
survived
intact
following” the Supreme Court’s decisions in Smith v. Phillips,
455 U.S. 209 (1982), and United States v. Olano, 507 U.S. 725
(1993).
United States v. Lawson, 677 F.3d 629, 642 (4th Cir.
2012); see also id. at 643-44 (describing the circuit split).
A
brief discussion of Phillips, Olano, and our subsequent case law
is instructive.
Phillips was a habeas corpus appeal in which a sitting
juror
applied
to
the
state
district
attorney’s
office
for
a
position as an investigator during the pendency of a state court
trial.
455 U.S. at 212.
The defendant learned of the juror’s
employment application after the jury found him guilty.
result, the defendant moved to set aside the verdict.
213.
After
conducting
a
hearing
in
which
the
trial
As a
Id. at
court
received testimony from the juror and the prosecutor, the trial
court denied the defendant’s motion, finding that the juror was
not biased as a result of his employment application.
213-14.
The
Supreme
Court
concluded
26
that
the
Id. at
hearing
was
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sufficient, holding that due process requires the trial court to
conduct
a
hearing
prove
during
actual
which
“the
bias.”
defendant
Id.
at
215
has
the
opportunity
to
(emphasis
supplied).
Although the Court spoke in terms of the defendant
proving bias rather than the government rebutting a presumption
of prejudice, we have nonetheless expressly held that Phillips
did not overturn the Remmer presumption.
See Stockton, 852 F.2d
at 744 (distinguishing Phillips and concluding that in cases
where
“the
danger
predisposition,
but
is
not
rather
one
the
of
juror
effect
of
impairment
an
or
extraneous
communication upon the deliberative process of the jury,” the
Remmer presumption applies (emphasis supplied)).
Olano was a direct appeal in which a district court
permitted
alternate
jurors
to
be
present
during
jury
deliberations in violation of Federal Rule of Criminal Procedure
24(c).
object
507 U.S. at 729-30.
to
the
alternate
Because the defendants did not
jurors’
presence,
the
Supreme
Court
considered whether the district court’s decision was plain error
under Federal Rule of Criminal Procedure 52(b).
737.
Id. at 730,
The Supreme Court cited Remmer and observed, “[t]here may
be cases where an intrusion should be presumed prejudicial, but
a presumption of prejudice as opposed to a specific analysis
does not change the ultimate inquiry: Did the intrusion affect
the jury’s deliberations and thereby its verdict?”
27
Id. at 739
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(internal
Filed: 05/05/2014
citations
Pg: 28 of 87
omitted).
We
have
recently
“conclude[d]
that the Supreme Court’s discussion, of the ‘ultimate inquiry’
to be performed in cases involving ‘intrusions’ into a jury’s
deliberations, suggests that this inquiry may be framed either
as a rebuttable presumption or as a specific analysis of the
intrusion’s effect on the verdict.”
(emphasis supplied).
presumption
review.
Lawson, 677 F.3d at 642
Nonetheless, we have applied the Remmer
post-Olano,
both
on
direct
appeal
and
on
§
2254
See id. (noting, on direct appeal, that “the Remmer
rebuttable
presumption
remains
live
and
well
in
the
Fourth
Circuit”); United States v. Blauvelt, 638 F.3d 281, 294-95 (4th
Cir. 2011) (direct appeal); Wolfe v. Johnson, 565 F.3d 140, 16062 (4th Cir. 2009) (28 U.S.C. § 2254 review); Fullwood, 290 F.3d
at 677-78 (28 U.S.C. § 2254 review).
post-AEDPA cases.
Wolfe and Fullwood were
Therefore, the Remmer presumption must have
been clearly established in order to be relevant under AEDPA.
See 28 U.S.C. § 2254(d).
Thus, by necessary implication, we have held that the
Remmer presumption is clearly established federal law as defined
by AEDPA even after the Supreme Court’s decisions in Phillips
and
Olano.
position,
The
and
presumption
we
State
will
“clearly
has
not
therefore
established
asked
us
continue
federal
to
to
reconsider
deem
law”
our
the Remmer
here.
See
Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (per curiam)
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(explaining that “an appellate panel may, in accordance with its
usual law-of-the-circuit procedures, look to circuit precedent
to ascertain whether it has already held that the particular
point
in
issue
is
clearly
established
by
Supreme
Court
precedent”).
b.
We also recognize that Remmer established a separate,
but
related
requirement
that
a
defendant
be
entitled
to
a
hearing when the defendant presents a credible allegation of
communications
or
contact
between
a
third
party
concerning the matter pending before the jury.
and
a
juror
See Haley v.
Blue Ridge Transfer Co., 802 F.2d 1532, 1535 (4th Cir. 1986)
(describing the Remmer presumption and explaining that “Remmer
also
established
the
requirement
of
a
post-trial
evidentiary
hearing in which the prevailing party has the opportunity and
burden of rebutting the presumption of juror prejudice”); see
also United States v. Malloy, 758 F.2d 979, 982 (4th Cir. 1985)
(referring
to
the
potential
juror
post-trial
bias
as
a
evidentiary
“required”
hearing
hearing);
concerning
Stouffer
v.
Trammell, 738 F.3d 1205, 1214 (10th Cir. 2013) (explaining that
“[t]he
trial
court’s
duty
to
conduct
29
a
Remmer
hearing
when
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genuine
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concerns
of
improper
Pg: 30 of 87
juror
contact
arise
is
clearly
established by the Supreme Court”). 12
Post-Remmer Supreme Court case law has confirmed that
due process requires a hearing to alleviate concerns of juror
partiality.
In Phillips, the Court explained that it “has long
held that the remedy for allegations of juror partiality is a
hearing
in
which
actual bias.”
the
defendant
has
the
opportunity
to
prove
455 U.S. 209, 215 (1982); see also Porter v.
Illinois, 479 U.S. 898, 900 (1986) (Marshall, J., dissenting
from denial of writ of certiorari) (citing Remmer and Phillips
and explaining that “[w]hen a substantial question of juror bias
is presented to the trial court, . . . we have held that the
defendant is entitled to a hearing with all interested parties
permitted to participate” (internal quotation marks omitted)).
The requirement that a trial court conduct a hearing
to determine juror partiality is rooted in the Constitution:
Due process means a jury capable and willing to decide
the case solely on the evidence before it, and a trial
judge ever watchful to prevent prejudicial occurrences
and to determine the effect of such occurrences when
they happen. Such determinations may properly be made
12
See also United States v. Sandalis, 14 F. App’x 287, 289
(4th Cir. 2001) (unpublished per curiam) (citing Remmer and
explaining that “when a party makes a threshold showing that
improper external influences came to bear on the decision-making
process of a juror, an evidentiary hearing on juror bias not
only is allowed under Federal Rule of Evidence 606(b), but is
required”).
30
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at a hearing like that ordered in Remmer and held in
this case.
Phillips, 455 U.S. at 217.
Depending on when allegations of
improper juror communication or contact are brought to the trial
court’s
attention,
the
hearing
requirement
post-trial, like in Remmer, or during trial.
may
be
satisfied
See Ladd v. South
Carolina, 415 F.2d 870, 873 (4th Cir. 1969) (explaining that by
conducting an “adversary proceeding . . . in open court during
the state trial,” the trial judge did “precisely that taught by
Remmer”).
for
Accordingly, it is clearly established federal law
purposes
entitled
to
of
a
our
review
hearing
when
under
he
AEDPA
or
she
that
a
presents
defendant
a
is
credible
allegation of communications or contact between a third party
and a juror concerning the matter pending before the jury. 13
13
Whether the Remmer presumption has been altered or
diminished by Philips and Olano, as described above, does not
affect our conclusion that the Remmer hearing requirement is
clearly established federal law. In Phillips, the Supreme Court
actually reinforced the hearing requirement as an independent
remedy, explaining that the “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.”
Id. at
215. In Olano, because the defendants never requested a hearing
to determine whether the presence of alternate jurors during
deliberations influenced the verdict, the Supreme Court did not
need to decide “whether the courts of appeals have authority to
remand for Remmer-like hearings on plain-error review.”
507
U.S. at 740.
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2.
Of
course,
not
every
allegation
of
an
unauthorized
communication between a juror and a third party will trigger the
Remmer presumption
and
its
corresponding
hearing
requirement.
See Haley, 802 F.3d at 1537 n.9 (recognizing that “certain kinds
of
extrajudicial
innocuous
contacts
interventions
may
that
amount
to
simply
nothing
could
presumption of prejudicial effect”).
not
more
than
justify
a
To be sure, “due process
does not require a new trial every time a juror has been placed
in a potentially compromising situation,” Phillips, 455 U.S. at
217,
and
the
Remmer
presumption
“is
invoked,” Stockton, 852 F.2d at 745.
not
one
to
be
casually
Therefore, to be entitled
to the Remmer presumption and a Remmer hearing, a “defendant
must first establish both that an unauthorized contact was made
and that it was of such a character as to reasonably draw into
question the integrity of the verdict.”
Id. at 743; Billings v.
Polk, 441 F.3d 238, 247 n.6 (4th Cir. 2006); see also Stouffer,
738 F.3d at 1214 (“When a trial court is apprised of the fact
that
an
extrinsic
influence
may
have
tainted
the
trial,
the
proper remedy is a hearing to determine the circumstances of the
improper contact and the extent of the prejudice, if any, to the
defendant.”); Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir.
2005)
(a
Remmer
hearing
is
required
when
“the
extraneous
communication to the juror [is] of a character that creates a
32
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reasonable
Filed: 05/05/2014
suspicion
that
Pg: 33 of 87
further
inquiry
is
necessary
to
determine whether the defendant was deprived of his right to an
impartial jury”).
Stated differently, the Remmer presumption and hearing
requirement are triggered after the party attacking the verdict
satisfies the “minimal standard” of showing that “extrajudicial
communications or contacts [between a juror and a third party]
were
more
than
innocuous
interventions.”
United
States
v.
Cheek, 94 F.3d 136, 141 (4th Cir. 1996) (internal citations and
quotation marks omitted).
In considering whether a particular
communication or contact between a juror and a third party is
more
than
an
innocuous
intervention,
we
refer
back
to
the
“factors the Supreme Court deemed important” in Remmer itself.
Id.
Those factors are: any private communication; any private
contact;
any
tampering;
directly
or
indirectly
during trial; about the matter before the jury.
with
a
juror
See id. (citing
Remmer, 347 U.S. at 229).
Extrajudicial communications or contact with a juror
has been deemed to trigger Remmer in a variety of circumstances,
including:
a
juror
being
offered
a
bribe
during
trial
and
subsequently being investigated by an FBI agent, Remmer, 347
U.S. at 229-30; a juror applying for a job at the prosecuting
attorney’s office during the trial, Phillips, 455 U.S. 216-18; a
local restaurant owner suggesting to jurors in a capital case
33
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Pg: 34 of 87
that “they ought to fry the son of a bitch,”
at
743;
and
evidentiary
allegations,
hearing,
if
a
that
proven
to
juror’s
Stockton, 852 F.2d
be
husband
true
during
pressured
an
her
throughout the trial to vote for the death penalty, Fullwood,
290 F.3d 681-82.
See also Parker, 385 U.S. at 363-64 (finding
habeas petitioner was deprived of his right to an impartial jury
where the bailiff said, in the presence of certain jurors, that
petitioner was a “wicked fellow” and that he was guilty, and
later said to another juror, “[i]f there is anything wrong [in
finding petitioner guilty] the Supreme Court will correct it”
(alteration
in
original));
Turner,
379
U.S.
at
467-69,
474
(finding state defendant was denied the right to a trial by an
impartial
jury
where
two
deputy
sheriffs,
who
served
as
key
prosecution witnesses, were responsible for the sequestration of
the jury during which time they “ate with [the jury], conversed
with them, and did errands for them,” even where there was no
evidence that the deputies discussed the case with the jurors).
Importantly,
each
of
the
illustrations
with external influences on jury deliberations.
above
dealt
See Wolfe, 565
F.3d at 161 (“In its jury influence jurisprudence, the [Supreme]
Court
has
clearly
distinguished
between
external
jury
influences, on the one hand, and internal jury influences, on
the other.” (emphasis in original)).
“[u]nder
clearly
established
Supreme
34
As we have recognized,
Court
case
law,”
an
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Pg: 35 of 87
influence on a jury’s deliberative process is external if it is
either
“extraneous
prejudicial
information;
i.e.,
information
that was not admitted into evidence but nevertheless bears on a
fact at issue in the case,” or if it is “an outside influence
upon the partiality of the jury, such as private communication,
contact, or tampering . . . with a juror.”
Robinson, 438 F.3d
at 363 (internal citations and quotation marks omitted).
distinction
between
internal
and
external
jury
The
influences
is
critical because, unlike external influences, which “necessitate
a thorough judicial inquiry, no such obligation is imposed with
regard to an internal jury influence.”
Wolfe, 565 F.3d at 161
(emphasis supplied); see also Robinson (explaining that Tanner
v.
United
Sixth
States,
438
Amendment’s
U.S.
107
guarantees
(1987)
do
“establishes
not
that
require
the
judicial
consideration of juror allegations regarding influences internal
to the deliberation process”).
3.
In the face of this clearly established Supreme Court
precedent available to guide a state court’s adjudication of a
claim
of
State
nonetheless
decisions
external
influences
asserts
evaluating
deliberations
involved
on
that
a
jury’s
because
deliberations,
the
external
influences
different
factual
Supreme
on
the
Court’s
a
circumstances
jury’s
than
those presented by Barnes, the Supreme Court “has given state
35
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courts
Filed: 05/05/2014
little
to
no
Appellee Br. 21-22.
Pg: 36 of 87
guidance”
in
adjudicating
such
claims.
It is, therefore, the State’s position that
the MAR Court’s adjudication in this case could not have been an
unreasonable
application
of
clearly
established
federal
law.
The State is incorrect.
Indeed,
Remmer
and
its
progeny
clearly
established
that a presumption of prejudice must be applied, and that a
hearing
must
be
held,
when
a
defendant
presents
a
genuine
allegation of communication or contact between a third party and
a juror concerning the matter pending before the jury.
no
requirement
under
AEDPA
that
a
habeas
There is
petitioner
present
facts identical to those previously considered by the Supreme
Court to be entitled to relief.
Panetti v. Quarterman, 551 U.S.
930, 953 (2007) (noting that “AEDPA does not ‘require state and
federal courts to wait for some nearly identical factual pattern
before
a
legal
rule
must
be
Musladin, 549 U.S. 70, 81 (2006)
judgment)));
(2000)
(a
applied’”
(quoting
Carey
v.
(Kennedy, J., concurring in
see also Williams v. Taylor, 529 U.S. 362, 407
state
court’s
decision
is
an
“unreasonable
application” of clearly established federal law if the court
“identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case” (emphasis supplied)).
as
illustrated,
this
clearly
established
36
legal
Thus,
principle
can
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apply
to
Filed: 05/05/2014
myriad
factual
Pg: 37 of 87
circumstances
involving
third
party
communications with jurors.
Our § 2254 review of Barnes’ juror misconduct claim is
therefore guided by Remmer and the other clearly established
Supreme Court precedent described above concerning third party
communications with jurors.
B.
Unreasonable Application of Clearly Established Federal Law
Having identified the clearly established federal law
governing Barnes’ juror misconduct claim, we must now determine
whether the MAR Court acted contrary to this clearly established
law, or applied it unreasonably, in failing to order a hearing
and failing to apply a presumption of prejudice after Barnes
presented allegations that a juror communicated with her pastor
about the death penalty during Barnes’ capital sentencing.
In
view of the evidence presented to the MAR Court, we conclude
that its adjudication of Barnes’ juror misconduct claim amounted
to an unreasonable application of clearly established federal
law.
1.
Immediately after the jury recommended that Barnes be
sentenced to death, the trial court was alerted to the fact that
one of the jurors “called a member of the clergy, perhaps a
relative of hers, to ask about a particular question as to the
37
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death penalty.”
Pg: 38 of 87
J.A. 1602.
In response to the trial judge’s
inquiry regarding whether the juror “discussed the particular
facts
of
this
case
with
anybody
outside
the
jury,”
defense
counsel stated that there was “[n]o evidence that they did or
did
not
as
concerned.”
such
far
Id.
evidence
as
the
conversation
with
the
minister
is
Because defense counsel could not point to any
at
that
time,
the
trial
court
“den[ied]
the
request to start questioning [the] jury about what may or may
not have taken place during their deliberations of this trial.”
Id. at 1602-03.
Barnes
provided
additional
details
concerning
juror’s communication with her pastor to the MAR Court.
the
In his
MAR, Barnes presented allegations that one or more jurors were
bothered
by
a
closing
sentencing hearing.
argument
made
during
Barnes’
capital
The closing argument in question was made
by a co-defendant’s attorney, in which he suggested that if the
jury returned a sentence of death, the jurors would one day face
God’s judgment for their actions.
the
closing
argument
“made
the
According to Juror Peacock,
jury
furious.”
J.A.
1900.
Moreover, Juror Jordan noticed “that another juror, a female,
seemed
visibly
upset
by
the
argument.”
Id.
at
1898.
In
response, Juror Jordan contacted her pastor, Pastor Lomax, and
“discussed
During
the
their
lawyer’s
argument”
conversation,
Pastor
38
with
Lomax
him.
“told
Id.
at
[Juror]
1892.
Jordan
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about another biblical passage which contradicted the passage
relied upon by the defense attorney.”
Id.
Two other jurors
remembered that a juror talked to her pastor during the case.
In
particular,
Juror
Weddington
stated
that
“a
juror
named
‘Hollie’ brought a Bible into the jury room and read from it”
and that “Hollie also talked to her pastor during the case.”
Id. at 1902.
Additionally, Juror Allen “recalled discussions
about the fact that one of the jurors had brought in a [B]ible
Id. 14
and had talked with her pastor.”
Barnes
presented
further
evidence
to
the
MAR
Court
that Juror Jordan brought her Bible into the jury deliberation
room and “read the passage suggested to her by [Pastor] Lomax to
all of the jurors.”
J.A. 1892.
Although Juror Jordan recalled
that the passage stated “that it [was] the duty of Christians to
abide by the laws of the state,” id. at 1898, Juror Peacock
stated that the passage “dealt with life and death,” id. at
1893.
In addition, Juror Weddington observed, “[t]he person who
brought in the Bible read a passage to a juror who was having a
hard time with the death penalty.”
14
Id. at 1892-93.
For his part, Pastor Lomax “could not recall the
conversation recounted by [Juror] Jordan.”
J.A. 1893.
He
stated, however, “that it [was] possible that he did talk to
[Juror Jordan] about the death penalty while she was a juror,
but he simply does not remember it.” Id.
39
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2.
After being presented with the allegations described
above, the MAR Court failed to apply Remmer or any reasonable
version of it.
As we have explained, Remmer imposes not only a
presumption of prejudice, but also entitles the defendant to an
evidentiary hearing when the defendant presents allegations of
an extraneous influence on the jury -- that is, communications
or contact between a third party and a juror concerning the
matter pending before the jury.
Haley, 802 F.2d at 1535.
Remmer, 347 U.S. at 229-30;
Here, it is without question that
Juror Jordan’s conversation with Pastor Lomax was a contact or
communication with a third party.
We must therefore determine
whether this contact concerned the matter pending before the
jury.
An unauthorized contact between a third party and a
juror concerns the matter pending before the jury when it is “of
such
a
character
as
to
integrity of the verdict.”
reasonably
draw
into
question
Stockton, 852 F.2d at 743. 15
15
the
This is
As we have previously noted, Stockton was a 28 U.S.C.
§ 2254 case in which we applied Remmer. See Fullwood, 290 F.3d
at 678.
There, we explained that “when a habeas petitioner
bases a juror bias claim on improper communication between, or
improper influence exerted by, a nonjuror upon a juror, . . . he
‘must . . . establish both that an unauthorized contact was made
and that it was of such a character as to reasonably draw into
question the integrity of the verdict.” Id. (quoting Stockton,
852 F.2d at 743).
40
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a “minimal standard.”
is
required
is
a
Pg: 41 of 87
Cheek, 94 F.3d at 141.
threshold
showing
interventions.”
Id. (internal quotation marks omitted).
requiring
much
Court
more
of
greatly
Barnes
present
Barnes
to
a
evidence
was
hearing,
that
therefore
communication.
a
than
distorted
than
showing of potential juror bias.
entitlement
more
extrajudicial
or
MAR
were
“the
communications
The
contacts
that
Indeed, all that
a
Barnes’
threshold
burden,
or
minimal
Instead, to demonstrate an
the
MAR
Court
juror
was
actually
actually
innocuous
prejudiced
required
by
Barnes
biased
the
and
to
that
unauthorized
After concluding that Barnes’ new evidence “adds
nothing to the issue as it was presented during [his] original
appeal,”
J.A.
1883,
the
MAR
Court
incorporated
the
North
Carolina Supreme Court’s reasoning from the direct appeal, which
denied Barnes’
request
evidence
the
that
for
content
a
hearing
of
any
because
such
“[t]here
possible
is
no
discussion
prejudiced [Barnes],” State v. Barnes, 481 S.E.2d 44, 68 (N.C.
1997)
(emphasis
supplied).
Even
though
Barnes
alleged
that
Juror Jordan called Pastor Lomax and discussed the death penalty
with him while Juror Jordan was considering whether Barnes and
his co-defendants would live or die, the court did not consider
this conversation as involving “‘extraneous information’ . . .
or deal[ing] with the fairness and impartiality of the juror.”
Id.
In
essence,
the
MAR
Court
41
demanded
proof
of
a
Sixth
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Amendment violation -- that is, proof of juror bias -- before
Barnes
was
entitled
to
any
relief.
directly at odds with Remmer.
Such
a
requirement
is
Certainly, if defendants were
required to prove juror bias before obtaining a hearing, the
Remmer hearing requirement, which is designed to determine “what
actually
transpired,
or
whether
the
incidents
that
may
have
occurred were harmful or harmless,” Remmer, 347 U.S. at 229,
would be utterly meaningless.
Therefore, no reasonable reading
of Remmer comports with the burden placed on Barnes by the MAR
Court.
The
conversation
district
with
court’s
Pastor
conclusion
Lomax
did
not
that
Juror
reasonably
Jordon’s
draw
into
question the integrity of the verdict is similarly flawed.
the
district
demonstrated
court’s
that
Pastor
view,
Lomax
Barnes’
directed
allegations
Juror
In
simply
Jordan
“to
a
portion of the Bible in response to a defense argument that was
most assuredly not before the jury -- i.e., whether God would
condemn a juror who voted to impose a death sentence.”
Barnes
v. Lassiter, 1:08-CV-00271, 2013 WL 1314466, at *6 (M.D.N.C.
Mar. 28, 2013) (emphasis in original).
We cannot agree.
During
the sentencing phase of Barnes’ trial, the jury was charged with
deciding whether to impose a sentence of life imprisonment or a
sentence of death for Barnes and his co-defendants.
Clearly,
then, “the matter before the jury” was the appropriateness of
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the death penalty for these defendants.
To the extent that a
juror had a conversation with a third party about the spiritual
or moral implications of making this decision, the communication
“was of such a character as to reasonably draw into question the
integrity
of
the
verdict,”
Stockton,
852
F.2d
at
743,
and
further inquiry in a Remmer hearing was required.
Our dissenting colleague characterizes this analysis
as “conclud[ing] that the communication alleged here satisfies
Remmer because ‘the spiritual or moral implications of’ deciding
whether to impose death ‘clearly’ related to ‘the matter pending
before
the
jury.’”
misconstrues
the
Post
point.
at
72.
Given
The
a
dissenting
jury’s
role
opinion
during
the
sentencing phase of a capital case, “the matter pending before
the jury” is to determine whether or not the defendant ought to
receive the death penalty.
U.S.
320,
329
sentencers”
as
(1985)
“the
See Caldwell v. Mississippi, 472
(describing
serious
one
the
of
duty
of
determining
“capital
whether
a
specific human being should die at the hands of the State”);
Stockton,
Remmer
852
and
F.2d
noting
at
746
that
(28
“the
U.S.C.
exact
§
2254
issue”
for
case
analyzing
jurors
in
the
sentencing phase of a capital case to decide is “whether to
impose the death penalty”).
during
the
argument
sentencing
from
defense
phase,
Here, as the dissent acknowledges,
the
counsel
43
jury
was
presented
“suggest[ing]
that
if
with
an
jurors
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returned a death sentence, they, the jurors would one day face
judgment for their actions.”
This
argument
was
directly
J.A. 1892 (emphasis supplied).
aimed
at
whether
the
jury
should
impose the death penalty, and at no point did the trial court
instruct the jury to disregard the argument.
The argument was
thus squarely presented for the jury’s consideration as part of
their ultimate sentencing decision.
After hearing the argument, Juror Jordan contacted her
pastor and “discussed the lawyer’s argument” with him.
1892.
Jordan
During
about
their
another
conversation,
biblical
the
passage
pastor
which
passage relied upon by the defense attorney.”
no
further
than
these
allegations
to
“told
J.A.
[Juror]
contradicted
Id.
conclude
the
We need look
that
Juror
Jordan’s conversation with a third party about defense counsel’s
argument, which asked the jury to return a sentence of life
imprisonment instead of death, bore on the jury’s sentencing
determination
and
before the jury.”
was,
therefore,
“about
the
matter
pending
To conclude otherwise would not simply be
incorrect or erroneous; it would be objectively unreasonable. 16
16
The dissent suggests that “it would not be ‘objectively
unreasonable’ for the state court to limit the scope of ‘the
matter pending before the jury’ to communication or contact
suggesting how the juror should vote in a particular case.”
Post at 73. In the dissent’s view, “[t]he North Carolina state
MAR [C]ourt could reasonably conclude that the type of
communication at issue here did not constitute contact ‘about
(Continued)
44
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Moreover,
in
Pg: 45 of 87
discussing
whether
relief
under
Remmer
was warranted in this case, the dissent focuses not on what is
alleged
by
Barnes,
allegations.
but
rather
on
what
is
missing
from
his
In this regard, the dissent states, “[n]owhere in
the affidavits supporting his claim does Barnes suggest that the
pastor expressed his views of the death penalty either generally
or
as
applied
to
this
case.”
Post
at
75.
The
dissent
continues, noting that Barnes’ affidavits do not “support the
claim that the pastor attempted to persuade the juror to vote
for
or
against
the
death
penalty,
suggested
that
the
Bible
supported a particular sentence in this case, or exposed the
juror
to
any
extraneous
information
relevant
to
the
juror’s
the matter pending before the jury’ because it was not directed
to the choice of sentence, life in prison or death, that the
jury was ultimately charged to determine.”
Id. at 77-78.
We
could not disagree more.
Indeed, Barnes’ allegations satisfy
even this arguably more stringent standard offered by the
dissent. The alleged conversation at issue here was prompted by
a defense argument concerning the consequences for a juror who
votes to impose a death sentence for Barnes and his codefendants.
Juror Jordan and Pastor Lomax “discussed the
[defense] lawyer’s argument,” and Pastor Lomax “told [Juror]
Jordan about another biblical passage which contradicted the
passage relied upon by the defense attorney.” J.A. 1892. Thus,
Pastor Lomax’s communication bore directly on the very decision
facing Juror Jordan -- whether to impose the death penalty.
Even under the dissent’s proposed iteration of the relevant
standard, it is hard to see how this communication does not
“suggest[] how the juror should vote in a particular case,” see
post at 73, or how the communication “was not directed to the
choice of sentence, life in prison or death,” see post at 77.
45
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deliberative process.”
dissent
ignores
a
Id.
Pg: 46 of 87
In making these observations, the
critical
component
underlying
the
Supreme
Court’s concern in cases involving juror bias -- that without a
hearing, a criminal defendant is deprived of the opportunity to
uncover facts that could prove a Sixth Amendment violation.
See
Remmer, 347 U.S. at 229 (“We do not know from this record, nor
does the petitioner know, what actually transpired, or whether
the
incidents
that
may
have
occurred
were
harmful
or
harmless.”); Remmer II, 350 U.S. at 379-80 (“It was the paucity
of information relating to the entire situation coupled with the
presumption
which
attaches
to
the
kind
of
facts
alleged
by
petitioner which, in our view, made manifest the need for a full
hearing.”); Smith, 455 U.S. at 215 (“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 Supreme Court has cautioned, “[t]he integrity of
jury
proceedings
invasions.”
must
Remmer,
not
347
be
U.S.
jeopardized
at
229.
by
Here,
unauthorized
Barnes
has
sufficiently alleged a third party communication with a juror
that may well have jeopardized the integrity of the sentencing
phase of his trial.
dissent,
coupled
The absence of evidence highlighted by the
with
the
nature
46
of
Barnes’
allegations,
is
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precisely why Remmer requires the state courts to hold a hearing
in such cases.
The district court concluded, however, that a hearing
in state court was not necessary because the “North Carolina
courts accepted . . . Barnes’ claims as true when they assessed
whether he had raised a constitutional claim warranting relief
and determined that he had not.”
*6.
Barnes, 2013 WL 1314466, at
But, when a court is presented with credible allegations of
juror communications with a third party about the matter pending
before the jury, Remmer requires a hearing.
cannot
be
circumvented
allegations as true.
by
simply
This requirement
accepting
the
factual
Just as in Remmer, the MAR Court here,
faced with a credible claim of juror misconduct, “[did] not know
from
this
record,
nor
[did]
[Barnes]
know,
what
actually
transpired, or whether the incidents that may have occurred were
harmful or harmless.”
Remmer, 347 U.S. at 229.
Accordingly,
the district court incorrectly concluded that although there was
unauthorized contact between a juror and her pastor, Barnes was
not entitled to the Remmer presumption of prejudice or a Remmer
hearing.
Barnes’ allegations raised a genuine concern of juror
impartiality, and due process therefore required the MAR Court
to remedy this allegation by ordering a hearing in which Barnes
would have enjoyed a presumption of prejudice.
47
See Phillips,
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Pg: 48 of 87
455 U.S. at 215; Haley, 802 F.2d at 1535.
By demanding that
Barnes prove prejudice before affording him a hearing, the MAR
Court turned Remmer on its head.
was
an
objectively
The MAR Court’s adjudication
unreasonable
application
of
clearly
established federal law to the facts of Barnes’ juror misconduct
claim,
see
Williams,
529
U.S.
at
407,
and
its
failure
to
investigate Barnes’ juror misconduct claim was thus an abuse of
discretion.
3.
The State nevertheless argues that the MAR Court did
not unreasonably apply clearly established federal law because
our court has previously determined, on § 2254 review, that it
was not unreasonable for a state court to conclude that the
presence of a Bible in the jury room was not an extraneous
prejudicial influence on a jury’s verdict.
Our “Bible in the
jury room” line of cases, however, is readily distinguishable.
In Robinson, for example, a juror asked the bailiff for a Bible
and subsequently read several passages out loud in the jury room
-- including at least one referring to “an eye for an eye” -- to
convince the other jurors to vote for a death sentence.
F.3d at 357-58.
438
With respect to the Remmer issue, we held, “it
would have been reasonable for the MAR court to conclude that
the Bible is not analogous to a private communication, contact,
or tampering with a juror.”
Id. at 363.
48
Unlike a private
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communication with a third party, “which impose[s] pressure upon
a
juror
passages
apart
from
invites
the
the
juror
himself,
listener
conscience from within.”
Id.
to
the
examine
reading
his
or
of
Bible
her
own
Therefore, we concluded that the
Bible, standing alone, was not an “external influence,” as that
term was used in the Remmer line of cases.
Id. at 363-64.
Of
particular relevance here, we further explained:
The fact that the bailiff provided the Bible to the
juror does not alter our conclusion that it was not an
external influence. Robinson does not allege that the
bailiff instructed the jury to consult the Bible, or,
for that matter, that he did anything other than
simply provide the Bible upon the juror’s request. On
these facts, the MAR court reasonably could have
concluded that the bailiff’s act of providing a Bible
was nothing more than an innocuous intervention into
the jury’s deliberations.
Id. at 366.
Despite
the
State’s
arguments
to
the
contrary,
the
only similarity between the instant case and the “Bible in the
jury
room”
line
of
cases
is
the
Bible
itself.
Unlike
in
Robinson, where the juror in question was simply given a Bible
and read from it in the jury room, Barnes has alleged that Juror
Jordan was actually directed to a specific biblical passage by
her pastor in response to an argument about the death penalty
and that other jurors were aware that Juror Jordan had consulted
her pastor in this regard.
We alluded that Robinson might have
been a different case if the bailiff had “instructed the jury to
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consult the Bible” or done “anything other than simply provide
the Bible upon the juror’s request.”
438 F.3d at 366.
Barnes
has presented that case -- his allegations clearly indicate that
Pastor Lomax did not simply provide Juror Jordan with a Bible.
In
sum,
because
Robinson
did
not
involve
any
extraneous
communication or contact between a juror and a third party, it
does not change our conclusion that the MAR Court unreasonably
applied
clearly
established
federal
law
by
simply
denying
Barnes’ juror misconduct claim without applying a presumption of
prejudice and ordering a Remmer hearing.
C.
Substantial and Injurious Effect or Influence
Despite
adjudication
of
our
conclusion
Barnes’
juror
that
the
misconduct
MAR
claim
Court’s
was
an
unreasonable application of clearly established federal law, “we
are not permitted to grant habeas relief unless we are convinced
that
the
error
had
a
‘substantial
and
injurious
influence in determining the jury’s verdict.’”
effect
or
Fullwood, 290
F.3d at 679 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)).
This means that before we can grant habeas relief, we
must conclude that the MAR Court’s error “actually prejudiced”
Barnes.
Bauberger, 632 F.3d at 104.
“If we are in ‘grave
doubt’ as to the harmlessness of an error, the habeas petitioner
must prevail.”
Fullwood, 290 F.3d at 679 (citing O’Neal v.
50
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McAninch,
Filed: 05/05/2014
513
U.S.
432,
436
Pg: 51 of 87
(1995)).
“‘Grave
doubt’
exists
when, in light of the entire record, the matter is so evenly
balanced
that
the
court
feels
itself
regarding the error’s harmlessness.”
In
the
district
in
‘virtual
equipose’
assessment,
Barnes’
Id.
court’s
allegations failed to demonstrate that Juror Jordan’s contact
with
Pastor
Lomax
had
a
substantial
influence on the jury’s verdict.
and
injurious
effect
or
This conclusion, however, was
based on the district court’s erroneous holding that the MAR
Court did not unreasonably apply clearly established federal law
in
denying
hearing.
Barnes
a
presumption
of
prejudice
and
a
Remmer
Moreover, given the state court’s complete failure to
investigate Barnes’ juror misconduct claim, the district court
had
no
basis
from
which
to
determine
whether
Juror
Jordan’s
communication with her pastor was harmless.
Based on the record before us, it is unclear whether
Barnes
can
demonstrate
actual
prejudice
or
whether
the
MAR
Court’s unreasonable application of federal law was harmless.
See Fullwood, 290 F.3d at 682 (“Given the paucity of the record
and the lack of any factual findings, . . . we are unable to
determine whether an outside influence upon [the juror] had a
‘substantial and injurious effect or influence in determining
the jury's verdict.’” (quoting Brecht, 507 U.S. at 637)).
What
is clear, however, is that Barnes must be given the opportunity
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to prove actual prejudice.
Pg: 52 of 87
Accordingly, we will remand for the
district court to conduct an evidentiary hearing solely on the
issue of whether the state court’s failure to apply the Remmer
presumption and failure to investigate Juror Jordan’s contact
with
Pastor
Lomax
had
a
substantial
influence on the jury’s verdict.
(explaining
that
the
court
is
and
injurious
effect
or
See id.; Hall, 692 F.3d at 807
“uncertain
as
to
whether
[the
habeas petitioner] was actually prejudiced by the state courts’
constitutional
error,
given
the
dearth
of
information
before
[the court]” and remanding for a hearing on actual prejudice).
As the Seventh Circuit has recently explained, “[t]he
Remmer presumption is meant to protect against the potential
Sixth
Amendment
harms
of
extraneous
information
reaching
the
jury, but a state court’s failure to apply the presumption only
results in actual prejudice if the jury’s verdict was tainted by
such information.”
Hall, 692 F.3d at 805.
Barnes will not be
entitled to the Remmer presumption in attempting to make this
showing because the presumption does not apply in the federal
habeas context when proving a substantial and injurious effect
or influence on the jury’s verdict.
(citing
2002)).
Vigil
v.
Zavaras,
298
F.3d
See Lawson, 677 F.3d at 644
935,
941
n.6
(10th
Cir.
Therefore, to be entitled to habeas relief, Barnes will
need to affirmatively prove actual prejudice by demonstrating
52
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that
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the
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jury’s
verdict
Pg: 53 of 87
was
tainted
by
the
extraneous
communication between Juror Jordan and Pastor Lomax.
IV.
Pursuant
to
the
foregoing,
the
judgment
of
the
district court is reversed, and this matter is remanded to the
district court for an evidentiary hearing to determine whether
the state court’s failure to apply the Remmer presumption and
its
failure
to
investigate
Barnes’
allegations
of
juror
misconduct in a hearing had a substantial and injurious effect
or influence on the jury’s verdict.
REVERSED AND REMANDED
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AGEE, Circuit Judge, dissenting:
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) limits when a federal court may grant habeas relief to
a state prisoner.
28 U.S.C. § 2254(d).
The majority agrees
with Barnes that the North Carolina state courts’ adjudication
of
his
claim
unreasonably
(1954).
satisfies
applied
AEDPA’s
Remmer
v.
requirements
United
States,
because
347
U.S.
it
227
I disagree, and therefore respectfully dissent.
I.
AEDPA—which requires federal courts to give deference to
state
court
Supreme
adjudications
Court
case.
in
close
precedent—dictates
cases
the
involving
proper
uncertain
outcome
in
this
See Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per
curiam) (“A federal court may not overrule a state court for
simply holding a view different from its own, when the precedent
from
[the
Supreme]
Court
is,
at
best,
ambiguous.”).
Under
AEDPA, a federal court “shall not” grant habeas relief “to any
claim
that
was
adjudicated
on
the
merits
in
State
court
proceedings unless the adjudication of the claim” “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.”
28
U.S.C.
§
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2254(d)(1). 1
The
Pg: 55 of 87
majority
opinion
acknowledges
AEDPA’s
constraints only in the abstract, while simultaneously analyzing
the case at bar as if it were on direct appeal from the trial.
Thus,
the
analysis
majority
that
relevant
opinion
substitutes
state-court
engages
“its
in
a
independent
decision
applied
first-impression
judgment
clearly
that
the
established
federal law erroneously or incorrectly,” a result AEDPA does not
permit.
Given
See
the
Williams
v.
centrality
Taylor,
of
529
appellate
U.S.
362,
411
application
(2000).
of
AEDPA
deference, I begin by reviewing its demands on federal courts
examining state court decisions.
A.
Recent Supreme Court opinions addressing § 2254 unfailingly
and
repeatedly
substantial
give
to
impress
deference
state
court
upon
that
circuit
AEDPA
courts
requires”
adjudications
of
state
of
appeals
federal
“the
courts
prisoner
to
claims.
White v. Woodall, --- U.S. ---, No. 12-794, 2014 WL 1612424, at
*2 (observing that § 2254(d)’s limitations are “a provision of
law that some federal judges find too confining, but that all
federal judges must obey”); Nevada v. Jackson, 133 S. Ct. 1990,
1
Barnes relies on the “unreasonable application
component of § 2254(d)(1) rather than the “contrary
component.
55
of”
to”
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1994 (2013) (per curiam); Burt v. Titlow, 134 S. Ct. 10, 16
(2013) (“AEDPA erects a formidable barrier to federal habeas
relief for [state] prisoners.”); Greene v. Fisher, 132 S. Ct.
38, 43 (2011) (observing that AEDPA’s standard is “difficult to
meet, because [its purpose] is to ensure that federal habeas
relief functions as a guard against extreme malfunctions in the
state criminal justice systems, and not as a means of error
correction” (internal quotation marks omitted)); Harrington v.
Richter, 131 S. Ct. 770, 785 (2011) (“A state court must be
granted a deference and latitude that are not in operation when
the case involves review under” direct review.); Renico v. Lett,
559 U.S. 766, 773 (2010) (explaining that AEDPA “‘demands that
state-court
decisions
(quoting Woodford
curiam)).
v.
be
given
the
Visciotti,
537
benefit
U.S.
of
19,
the
24
doubt’”
(2002)
(per
The Supreme Court has also warned against “collapsing
the distinction between ‘an unreasonable application of federal
law’ and . . . ‘an incorrect or erroneous application of federal
law.”
Jackson, 133 S. Ct. at 1994 (quoting Williams, 529 U.S.
at 412).
A state court’s decision is an “unreasonable application
of”
Supreme
Court
case
law
if
the
state
court
“correctly
identifies the governing legal rule but applies it unreasonably
to the facts of a particular prisoner’s case.”
56
Williams, 529
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U.S. at 407-08. 2
further,
the
Pg: 57 of 87
Limiting the “unreasonable application” prong
Supreme
Court
recently
rejected
the
Fourth
Circuit’s additional characterization that a state court could
unreasonably
apply
Supreme
Court
precedent
by
“unreasonabl[y]
refus[ing] to extend a legal principle to a new legal context
where it should apply.”
White, 2014 WL 1612424, at *8 (“To the
extent the unreasonable-refusal-to-extend rule differs from the
one embraced in Williams and reiterated many times since, we
reject it.
in
which
precedent;
Section 2254(d)(1) provides a remedy for instances
a
state
it
does
court
not
unreasonably
require
state
applies
courts
this
to
Court’s
extend
that
precedent or license federal courts to treat the failure to do
so
as
error.”).
articulated
a
leeway
.
.
Moreover,
broader
.
where
governing
in
reaching
the
principle,
outcomes
Supreme
courts
in
Court
have
has
“more
case-by-case
determinations” than where the Court has articulated a narrower
rule.
Harrington, 131 S. Ct. at 786 (internal alteration and
quotation marks omitted).
2
As
the
majority
opinion
notes,
a
state
court’s
adjudication on the merits “need not cite or even be aware of
[Supreme Court] cases” or explain its rationale for this Court
to be owed deference under § 2254(d). Harrington, 131 S. Ct. at
784. Even where the state court’s decision does not explain its
reasoning or does so broadly, “the habeas petitioner’s burden
still must be met by showing there was no reasonable basis for
the state court to deny relief.” Id.
57
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AEDPA
Filed: 05/05/2014
deference
to
Pg: 58 of 87
state
court
decisions
means
that
“a
federal habeas court may overturn a state court’s application of
clearly established federal law only if it is so erroneous that
‘there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with [the Supreme] Court’s
precedents.’” Jackson, 133 S. Ct. at 1992 (quoting Harrington,
131 S. Ct. at 786); see also White, 2014 WL 1612424, at *8 (“The
critical point is that relief is available under § 2254(d)(1)’s
unreasonable-application
clause
if,
and
only
if,
it
is
so
obvious that a clearly established rule applies to a given set
of facts that there could be no ‘fairminded disagreement’ on the
question.”).
not
And in undertaking its review, a federal court is
constrained
by
the
state
court’s
express
reasoning,
but
instead “must determine what arguments or theories supported or,
as
here,
could
have
supported,
Harrington, 131 S. Ct. at 786.
the
state
court’s
decision.”
Although the majority opinion
fleetingly purports to apply AEDPA deference, it in truth simply
disagrees with an interpretation of Remmer that would allow the
state court to conclude that the conversation alleged to have
occurred here was not about a “matter pending before the jury.”
Cf.
Maj.
“disregards
Op.
at
42.
perfectly
In
doing
reasonable
so,
the
majority
interpretations
[of
opinion
Supreme
Court precedent] and hence contravenes § 2254(d)’s deferential
standard of review.”
See White, 2014 WL 1612424, at *6.
58
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B.
Through the applicable AEDPA lens, then, I consider the
North Carolina courts’ decisions denying Barnes a presumption of
prejudice or an evidentiary hearing in light of his allegation
that
a
juror
communicated
deliberations.
with
her
pastor
during
sentencing
This inquiry entails examining the context and
nature of Barnes’ allegations as well as the applicable Supreme
Court precedent.
During closing arguments for the sentencing phase of Barnes
and his co-defendants’ trial, one co-defendant’s attorney told
any “true believers” on the jury that “all of us will stand in
judgment [before God] one day.”
The attorney urged the jurors
to consider their judgment day before God and whether God would
praise them for not violating His commands—including “Thou shalt
not kill”—even if the state authorized sentencing a person to
death.
(J.A. 1532-33.)
The defense argument about the eternal
consequences to the jury’s decision left several jurors visibly
affected and, in one juror’s words, “furious.”
(J.A. 1900.)
For reasons unexplained in the record and only speculated to
during oral argument, the prosecution did not object to this
argument.
Following the jury’s deliberations and recommendation that
Barnes
be
sentenced
to
death,
Barnes’
attorney
informed
the
trial court that he had been apprised that one juror had spoken
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to “a member of the clergy” during the trial “about a particular
question as to the death penalty.”
(J.A. 1602.)
Because Barnes
had no evidence that the juror discussed “the particular facts
of this case with anybody outside the jury,” the trial court did
not allow the jurors to be questioned about this incident and
denied Barnes’ motion for a new trial.
(J.A. 1602-03.)
Barnes argued on direct appeal that the trial court abused
its discretion by denying his motion and not investigating this
allegation
Court
of
assumed
juror
misconduct.
that
Barnes’
The
North
allegations
Carolina
regarding
Supreme
third-party
contact were true, but concluded that the trial court had not
abused its discretion when confronted by a “mere unsubstantiated
allegation” that did not call into question “the fairness or
impartiality of the juror.”
(J.A. 1854-55.)
In particular, the
North Carolina Supreme Court noted the absence of evidence that
the communication “prejudiced [Barnes] or that the juror gained
access to improper or prejudicial matters and considered them
with regard to this case.”
When
Relief
filing
(“MAR”),
interview
his
North
Barnes
summary
(J.A. 1855.)
Carolina
attached
purporting
to
Motion
several
support
for
affidavits
his
claim
misconduct and extraneous influences on the jury.”
An
affidavit
juror
Hollie
from
Barnes’
Jordan
told
private
him
60
she
Appropriate
investigator
believed
and
of
an
“juror
(J.A. 1882.)
averred
that
the
that
co-
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defendant’s
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attorney
had
Pg: 61 of 87
“quot[ed]
scripture
out
of
context”
when he asserted “the jurors would one day face judgment for
their actions” if they sentenced the defendants to death.
She
“called her pastor” and “discussed the lawyer’s argument with”
him,
during
which
time
the
pastor
informed
her
of
“another
biblical passage which contradicted the passage relied upon by
the
defense
attorney.”
(J.A.
1892.)
On
the
day
of
her
interview with the private investigator, Ms. Jordan signed an
interview summary that does not mention any conversation with
her pastor.
Instead, Ms. Jordan’s signed statement says that
she was troubled by the co-defendant’s attorney’s argument, and
that
she
“brought
a
Bible
from
home
into
the
jury
deliberation[,] she read an unspecified passage from the Bible
stating that it is the duty of Christians to abide by the laws
of the state[, and that she] knew the passage from church.”
(J.A. 1898.) 3
Several other jurors recalled that one or more jurors read
from the Bible during the course of the jury’s deliberations.
None of the jurors could remember the verses read, but some of
them recalled that they at least in part related to the codefendant’s
attorney’s
troubling
3
closing
argument,
and
“dealt
Juror Jordan’s pastor did not recall conversing with Ms.
Jordan, but admitted it was possible that he had done so and
“simply [did] not remember it.” (J.A. 1893.)
61
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with life and death.”
Pg: 62 of 87
A few jurors also recalled that a juror
had talked to her pastor during the proceedings.
(J.A. 1892-93,
1900, 1902-03.)
The
North
“procedurally
evidence
nature
Carolina
barred
acquired
of
analysis
decision.”
after
Barnes’
inherent
and
MAR
court
without
the
which
in
[North
the
Barnes’
claims
as
explaining
merit,”
direct
claims,
denied
that
the
alter
the
the
same
appeal
were
did
not
“subject
Carolina
to
Supreme
Court’s]
(J.A. 1883.)
Barnes thereafter timely filed a § 2254 petition for a writ
of
habeas
corpus
in
the
U.S.
District of North Carolina.
District
Court
for
the
Middle
Relevant to this appeal, Barnes
once again alleged that juror misconduct during the sentencing
deliberations violated his due process rights.
Specifically, he
asserted that a juror improperly asked her pastor for advice
“about the biblical correctness of a defense closing argument”
(J.A. 1631), that the juror then improperly tainted the jury
deliberation by reading Bible verses to other jurors, and that
the state court erred by not granting Barnes a presumption of
prejudice or conducting an evidentiary hearing to establish the
prejudicial effect of these incidents.
district
court
denied
Barnes’
(J.A. 1627-40.)
petition,
but
granted
The
a
certificate of appealability “with respect to the issue whether
a juror’s contact with her pastor violated [his] Sixth Amendment
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right to a fair trial.”
Pg: 63 of 87
(J.A. 2181.) 4
C.
Barnes
alleges,
as
he
did
below,
that
the
state
courts
unreasonably applied Supreme Court precedent by denying him a
presumption of prejudice arising from the juror’s conversation
with her pastor.
He asserts that this conversation “constituted
an impermissible external influence on the deliberating jury,”
which entitles him to a new sentencing hearing.
(Opening Br.
18.)
state
In
the
alternative,
he
asserts
that
the
courts
unreasonably applied Supreme Court precedent by denying him the
opportunity to prove actual prejudice at an evidentiary hearing.
The Sixth Amendment’s due process right to a jury trial
encompasses being tried “by a panel of impartial, indifferent
jurors.”
Turner
(internal
quotation
v.
Louisiana,
marks
379
omitted).
4
U.S.
And
466,
“[t]he
471
(1965)
failure
to
Barnes continues to press the impropriety of reading the
Bible during deliberations inasmuch as he alleges that the juror
communicated information originally given to her from her pastor
to the jury.
To the extent that reading the Bible during
deliberations
would
present
a
separate
claim
of
juror
misconduct, that claim is not properly before this Court.
Moreover, the analysis for the juror contact claim turns on the
conversation alleged to have occurred between the juror and her
pastor, not on what the juror did thereafter.
If that
communication did not trigger Remmer, then nothing the juror did
thereafter would present a different claim than the separate,
“reading the Bible during deliberations” claim for which Barnes
has not been issued a COA.
63
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accord
an
Filed: 05/05/2014
accused
a
fair
Pg: 64 of 87
hearing
standards of due process.”
violates
Id. at 471-72.
even
the
minimal
This constitutional
concern forms the basis for a limited exception to “the nearuniversal and firmly established common-law rule in the United
States
[that]
flatly
prohibit[s]
the
testimony to impeach a jury verdict.”
483 U.S. 107, 117 (1987).
regarding
“whether
improperly
brought
the
juror
Tanner v. United States,
prejudicial
jury’s
improperly
information
attention
Id. at 121 (quoting Federal Rule of Evidence 606(b)). 5
Supreme
Court
dealing
cases
with
related
third-party
within
to
this
contact
two
a
455
concurring). 6
U.S.
209,
221-22
(1984)
any
sets
of
exception:
those
trial
those
dealing with juror misconduct during a trial.
Phillips,
upon
overlapping
narrow
during
bear
any
juror.”
fall
to
whether
influence
allegations
brought
or
was
outside
Barnes’
was
of
The exception permits juror testimony
extraneous
to
admission
and
See Smith v.
(O’Connor,
J.,
That said, the Supreme Court has considered claims
5
North Carolina Rule of Evidence 606(b) mirrors the federal
exception. See N.C. Gen. Stat. § 8C-1, Rule 606(b).
6
Allegations of juror misconduct are further broken down
into those alleging extraneous juror misconduct and those
alleging internal juror misconduct.
Although the line between
these two types of misconduct is not always clear, the
distinction creates important consequences when analyzing a
petitioner’s claim in light of the applicable evidentiary rules.
See Tanner, 483 U.S. at 116-22 (discussing the common law rule
adopted in federal court prohibiting juror testimony on matters
(Continued)
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based on jury bias arising from third-party contact during the
course of a trial in only a handful of cases.
The cornerstone of Barnes’ argument rests on Remmer, in
which the Supreme Court considered what due process required
when Remmer alleged an improper external influence on a juror
arising from a third-party telling the juror he “could profit by
bringing in a verdict favorable to” one party.
347 U.S. at 228.
The juror told the trial court about this contact, and the trial
court
reported
Investigation,
Remmer
moved
the
which
for
a
contact
to
investigated
new
trial,
the
the
Federal
matter
alleging
that
Bureau
further.
this
contact with the juror deprived him of a fair trial.
229.
of
Id.
external
Id. at
The district court denied the motion without holding a
hearing (which Remmer had requested) to examine the interaction
and its effect.
Id.
The Supreme Court remanded the case for an
evidentiary hearing, stating:
In
a
criminal
case,
any
private
communication,
affecting the jury’s deliberation, and the narrow exception to
that rule permitting juror testimony in situations in which an
“extraneous influence” is alleged to have affected the jury).
Because Barnes’ claim is now limited to the juror’s
conversation with her pastor—as opposed to a juror reading the
Bible during deliberations—the analysis focuses on precedent
relating to extraneous juror misconduct. Cf. Robinson v. Polk,
438
F.3d
350,
359-68 (4th
Cir.
2006)
(discussing
this
distinction in juror misconduct jurisprudence in the context of
juror’s use of the Bible during deliberations).
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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, if not made in pursuance of known rules
of the court and the instructions and directions of
the court made during the trial, with full knowledge
of the parties.
The presumption is not conclusive,
but the burden rests heavily upon the Government to
establish, after notice to and hearing of the
defendant, that such contact with the juror was
harmless to the defendant.
Id.
The Supreme Court observed that the record before it did
not reflect “what actually transpired, or whether the incidents
that may have occurred were harmful or harmless,” so a hearing
was necessary.
Id.
It vacated the lower court’s judgment and
remanded the case to the district court for a hearing.
Id. at
230.
In Parker v. Gladden, 385 U.S. 363 (1966) (per curiam), the
Supreme Court held that a defendant was entitled to a new trial
because a bailiff had stated to or in the presence of one or
more
jurors
“guilty,”
that
and
the
that
defendant
“[i]f
was
there
a
“wicked
[was]
fellow”
and
wrong
[in
anything
convicting him,] the Supreme Court [would] correct it.”
363-64.
The
Supreme
Court
observed
that
this
Id. at
communication
implicated the defendant’s constitutional rights to be tried by
an impartial jury and to confront the witnesses against him.
Id.
at
364.
And
it
concluded
that
the
communication
was
prejudicial because the bailiff was an officer of the court and
the
state,
had
“shepherd[ed]
[the
66
jury]
for
eight
days
and
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nights,”
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and
made
Pg: 67 of 87
statements
“involv[ing]
such
a
probability
that prejudice will result that it is deemed inherently lacking
in due process.”
Id. at 365.
In Turner v. Louisiana, 379 U.S. 466 (1965), the Supreme
Court considered a different type of third-party influence on
the
jury’s
“principal
deliberation:
witnesses
for
two
the
deputy
sheriffs
prosecution”
court
explained
continuously
that
in
the
the
latter
company
“meant
of
trial
and
The
that
[these
the
both
Id. at 467-68.
charged with keeping the jury sequestered.
at
were
the
jurors
witnesses
and
were
other
sheriff deputies] during the three days that the trial lasted.
[They] drove the jurors to a restaurant for each meal, and to
their
lodgings
each
night.
The
deputies
ate
conversed with them, and did errands for them.”
Although
discussed
the
the
evidence
case
did
with
the
not
indicate
jurors
that
while
with
them,
Id. at 468.
the
deputies
discharging
these
duties, id. at 469, 473, the Supreme Court nonetheless held that
this
interaction
Id. at 472-73.
unconstitutionally
tainted
the
proceedings.
The Court explained:
even if it could be assumed that the deputies never
did discuss the case directly with any members of the
jury, it would be blinking reality not to recognize
the extreme prejudice inherent in this continual
association throughout the trial between the jurors
and these two key witnesses for the prosecution.
We
deal here not with a brief encounter, but with a
continuous and intimate association throughout a
three-day
trial—an
association
which
gave
these
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witnesses
an
opportunity
friendships and make new
members of the jury.
Id.
.
.
.
to
acquaintances
renew
among
old
the
at 473.
Most recently, in Smith v. Phillips, 455 U.S. 209 (1984),
the Supreme Court rejected a petitioner’s argument that he was
entitled to a new trial after a juror submitted an employment
application to the prosecutor’s office during the course of the
trial.
which
The Court noted that in Remmer, the “attempted bribe,
[was]
‘presumptively
undisclosed
investigation,
prejudicial,’
which
was
[coupled
‘bound
the
impress
to
with]
the
juror” required a hearing at which the parties could determine
the
prejudicial
impact
of
these
events.
Id.
at
215-16.
However, the Court observed that “shield[ing] jurors from every
contact
or
influence
that
might
theoretically
affect
their
vote,” was “virtually impossible,” and held that a new trial was
unnecessary each time such an allegation or incident occurred.
Id.
at
217.
Instead,
the
Supreme
Court
reiterated
that
a
hearing—such as the one the trial court held in that case—could
ensure the jury decided the case based “solely on the evidence
before it” and did not prejudice the defendant.
While
Supreme
Barnes’
Court”
case
argument
law
regarding
rests
on
Id.
“clearly
Remmer,
each
established
of
the
above
Supreme Court cases informs how that precedent has been applied
and how a court should assess allegations of juror misconduct or
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third-party influence during a trial.
I agree with the majority
that Remmer is clearly established Supreme Court precedent, but
after
reviewing
Barnes’
claims
under
the
AEDPA
standards
of
review, I conclude that the North Carolina state courts did not
unreasonably apply Remmer.
D.
Analyzing
Remmer’s
applicability
to
the
case
at
bar
requires first looking to what the Supreme Court set forth as
the component parts of its rule, that being:
“In a criminal
case, any 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
presumptive prejudicial” except under circumstances not relevant
here.
347 U.S. at 229 (emphasis added).
Read in the context of
the Supreme Court’s actual holding, Remmer’s broad reference to
“any
private
immediately
communication,
constricted
by
contact,
the
matter pending before the jury.”
given
that
the
Remmer
or
narrowing
tampering”
clause
“about
is
the
This limitation makes sense
presumption
flows
from
the
narrow
exception to the common law prohibition—now expressed in the
rules of evidence—against soliciting juror testimony to impeach
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the verdict. 7
Pg: 70 of 87
See Robinson, 438 F.3d at 359-61 (discussing these
principles); Stockton v. Virginia, 852 F.2d 740, 743-44 (4th
Cir. 1988) (same).
Whatever Remmer’s scope, then, it must be
understood as part of a limited exception to the normal rules
governing the finality of the verdict and prohibiting courts
from entertaining post-judgment evidence to impeach the jury’s
verdict.
As
the
third-party
prejudice.
majority
contact
opinion
correctly
implicates
recognizes,
Remmer’s
Supra Maj. Op. at 32-35.
not
every
presumption
of
See, e.g., United States
v. Blauvelt, 638 F.3d 281, 294-95 (4th Cir. 2011) (holding, on
direct
review,
that
third-party
contact
between
a
juror
and
prosecutor unaffiliated with the case during the course of the
trial was “inadvertent and innocuous” and thus did not trigger
Remmer’s presumption even though the juror mentioned her jury
7
Federal Rule of Evidence 606(b) states:
During an inquiry into the validity of a verdict or
indictment, a juror may not testify about any
statement made or incident that occurred during the
jury’s deliberations; the effect of anything on that
juror’s or another juror’s vote; or any juror’s mental
processes concerning the verdict or indictment.
The
court may not receive a juror’s affidavit or evidence
of a juror’s statement on these matters.
There are three exceptions, permitting jurors to testify about
whether “extraneous prejudicial information was improperly
brought to the jury’s attention”; “an outside influence was
improperly brought to bear on any juror”; or “a mistake was made
in entering the verdict on the verdict form.”
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service
job);
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and
expressed
Wolfe
v.
Pg: 71 of 87
new-found
Johnson,
565
respect
F.3d
for
162
140,
the
prosecutor’s
(4th
Cir.
2009)
(holding, in § 2254(d) context, that the state court did not
unreasonably apply Remmer in concluding Wolfe failed to show
that
a
course
juror’s
of
numerous
jury
telephone
deliberations
external jury influence).
this
Court
presumption,
has
held
“a
‘unauthorized
§
constituted
an
during
the
impermissible
In applying Remmer in previous cases,
that
2254
contact
conversations
in
order
petitioner
was
made
to
must
and
trigger
show
that
it
Remmer’s
both
was
that
of
such
an
a
character as reasonably to draw into question the integrity of
the verdict.’”
Wolfe, 565 F.3d at 162 (internal quotation marks
omitted) (emphasis added).
Significantly,
neither
Remmer
nor
any
subsequent
Supreme
Court case has elaborated on when interaction between a juror
and third party is “about the matter pending before the jury.”
An area undefined by the Supreme Court thus exists between the
general
principle
espoused
interpretations—including
in
Remmer
limitations—of
and
it.
acceptable
Rather
than
calling those parameters into question in the first instance,
under
AEDPA,
the
Court
may
only
grant
courts’
conclusion
that
Remmer’s
scope
“unreasonable.”
question,
AEDPA
was
does
not
Barnes’
permit
71
relief
allegations
And
this
in
Court
if
the
fell
outside
examining
to
state
that
equate
a
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conclusion that the state’s application of Remmer is incorrect
to its being unreasonable.
See, e.g., Jackson, 133 S. Ct. at
1994.
The
majority
opinion
concludes
that
the
communication
alleged here satisfies Remmer because “the spiritual or moral
implications
of”
deciding
whether
to
impose
death
related to “the matter pending before the jury.”
42-43.
However,
conclusion
it
grounded
offers
in
no
Supreme
substantive
Court
“clearly”
Maj. Op. at
basis
precedent,
for
nor
this
does
it
grapple with arguments or theories that could have supported the
state
court’s
decision
to
the
contrary.
In
so
doing,
the
majority opinion treats the issue before us as if it were here
on direct appeal from the trial court and not a § 2254 petition
constrained
by
AEDPA.
The
majority
opinion
thus
fails
to
undertake the appropriate review under AEDPA, see Harrington,
131 S. Ct. at 786, and fails to recognize the lack of clearly
established Supreme Court case law mandating the interpretation
of
Remmer
that
it
adopts.
In
doing
so,
the
majority
transgresses the Supreme Court’s admonition in Jackson against
“collapsing the distinction between an unreasonable application
of federal law” and what the majority now views as “an incorrect
or erroneous application of federal law.”
133 S. Ct. at 1994
(quoting Williams, 529 U.S. at 412); see also Harrington, 131 S.
Ct. at 786 (“It bears repeating that even a strong case for
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relief does not mean the state court’s contrary conclusion was
unreasonable.”).
To
determine
specifically
what
what
constraints
reasonable
Remmer
posed
interpretations
generally—and
of
“the
matter
pending before the jury” might exist—I return to the controlling
Supreme Court case law, beginning with Remmer.
When that case
returned to the Supreme Court, the Supreme Court explained that
the earlier remand for an evidentiary hearing had been necessary
because of “the paucity of information relating to the entire
situation coupled with the presumption which attaches to the
kind
of
facts
alleged
by
petitioner[.]”
Remmer
v.
States, 350 U.S. 377, 379-80 (1956) (emphasis added).
United
In light
of the plain language in both Remmer decisions describing why
the
presumption
and
hearing
were
necessary
in
that
case,
it
would not be “objectively unreasonable” for the state court to
limit
the
scope
of
“the
matter
pending
before
the
jury”
to
communication or contact suggesting how the juror should vote in
a particular case.
The
majority
unreasonably
Supreme
apply
Court
has
correctly
Supreme
not
identical fact pattern.
posits
Court
issued
an
that
a
precedent
opinion
See Maj. Op. at 36.
state
court
may
even
where
the
involving
a
nearly
Federal courts can
grant habeas relief when state court adjudications are either
“contrary
to”
or
“unreasonable
73
application[s]
of”
clearly
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established Supreme Court precedent, § 2254(d)(1).
The point,
however, is that to prevail under § 2254, a petitioner must show
more than just the misapplication of Supreme Court precedent or
an erroneous decision.
As set out earlier, AEDPA mandates a
much higher bar, and where the Supreme Court has not spoken on a
particular
aspect
of
a
claim,
more
room
exists
for
court’s adjudication of the claim to be reasonable.
a
state
See, e.g.,
White, 2014 WL 1612424, at *6 (observing that “where the precise
contours of [a] right remain unclear, state courts enjoy broad
discretion
in
their
adjudication
of
a
prisoner’s
claims”
(internal quotation marks omitted)); Renico, 559 U.S. at 773-79
(applying this standard where the state court and circuit court
of appeals offered conflicting interpretations of the record,
both of which were “reasonable” and concluding that the state
court’s
adjudication
unreasonable);
applying
why
Mitchell,
an
was
540
erroneous
therefore
U.S.
state
at
not
17-18
court
(discussing
decision
objectively unreasonable state court decision).
[2-5].
objectively
is
not
and
an
Cf. supra at
Applied to this case, it is a far cry from limiting
Remmer to a nearly identical factual scenario (i.e., a potential
bribe) to conclude that whatever defines the proper scope of
“the matter pending before the jury,” it does not extend to the
allegations at issue here.
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Returning to the actual allegations contained in Barnes’
affidavits, 8 the only contact alleged to occur between the juror
and her pastor is a conversation regarding whether jurors would
face
judgment
(J.A. 1892.)
from
God
if
they
sentenced
someone
to
death.
Nowhere in the affidavits supporting his claim
does Barnes suggest that the pastor expressed his views of the
death
penalty
Neither
do
the
either
generally
affidavits
or
as
support
the
applied
claim
to
that
this
the
case.
pastor
attempted to persuade the juror to vote for or against the death
penalty,
suggested
that
the
Bible
supported
a
particular
sentence in this case, or exposed the juror to any extraneous
information
relevant
to
the
juror’s
deliberative
process.
Rather, the substantive allegation in the affidavit regarding
the juror’s communication with her pastor is that the pastor
8
I note that the relevant cross-reference should be to the
allegations contained in the affidavits because at times Barnes’
briefs on appeal allege a much broader third-party communication
than can be reasonably inferred from the contents of the
affidavits or his § 2254 petition. At times the majority makes
this same error.
For this reason, too, the majority is mistaken in opining
that the dissent is “focus[ing] not on what is alleged by
Barnes, but rather on what is missing from his allegations.”
Maj. Op. at 45. As detailed above, Barnes’ affidavits simply do
not allege what either Barnes or the majority now claim that
they do, and that point is made plain by looking to the actual
allegations in those affidavits.
What is missing from the
affidavits simply highlights the dichotomy between what they do
contain and other types of allegations that might bring the
claim within Remmer’s scope.
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provided the juror with a Bible verse that “contradicted the
passage
relied
upon
by
the
defense
attorney,”
which
had
“suggested that if jurors returned a death sentence, they, the
jurors would one day face judgment for their actions.”
(J.A.
1892.) 9
Numerous
times
throughout
his
§
2254
petition
Barnes
acknowledges that it is this issue—not the jury’s choice of the
appropriate sentence—which was the subject of the third-party
contact.
E.g., J.A. 1627 (“[A]n attorney for one of the co-
defendants told the jury that sentencing a defendant to death
would
violate
God’s
law
and,
perhaps,
9
subject
the
jurors
to
The rest of Barnes’ affidavits merely allege that the
juror talked to her pastor (without alleging anything about what
the conversation was about) or that jurors read from the Bible
during jury deliberations. (J.A. 1892-1903; see also Dist. Ct.
Op. at J.A. 2140 n.10.)
With respect to the former, the state court was not obliged
to conclude that mere contact with the pastor—absent some
attendant factual allegation that it involved communication
“about the matter pending before the jury”—warranted either a
presumption of prejudice or an evidentiary hearing. Indeed, the
majority recognizes as much.
But we arrive at different
conclusions based on our different views of how to approach the
state courts’ interpretation of Barnes’ evidence in light of
Remmer.
With respect to the jurors reading from the Bible, these
allegations are not before the Court as they are not part of the
certificate of appealability. To the extent that Barnes alleges
further
prejudice
arising
from
the
juror’s
subsequent
conversations
during
deliberations,
that
would
be
mere
surplussage as improper third-party contact with even one juror
would be sufficient to trigger Remmer’s presumption, if that
contact had otherwise fallen within Remmer’s scope.
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judgment one day.
Pg: 77 of 87
In response to this argument, one of the
jurors . . . telephon[ed] her pastor and [sought] his advice
about this argument.
He referred her to a biblical passage that
he claimed refuted the argument.” (emphasis added)); 1629 (“[A]
lawyer argued the jurors might themselves be judged by God if
they returned a sentence of death. . . . In response to this
argument, [a juror] contacted her pastor . . . and discussed it.
[The pastor] gave her a biblical passage that he felt responded
to the argument.” (emphasis added)); 1631 (“[A] sitting juror .
. . call[ed] her pastor during the sentencing deliberations and
asked his advice about the biblical correctness of a defense
closing argument.
The pastor referred her to a passage [he]
claimed refuted the argument.” (emphasis added)).
While Barnes
also
conversation
speculates
and
theorizes
as
to
how
the
impacted the deliberative process, he reaches far beyond the
scope of the evidence before the state MAR court at the time it
reviewed his claim in so doing.
E.g., J.A. 1633-34 (asserting,
among other things, that the pastor provided his view on the
biblical support for the death penalty and gave the juror the
“green light” to vote for death).
The
North
Carolina
state
MAR
court
could
reasonably
conclude that the type of communication at issue here did not
constitute contact “about the matter pending before the jury”
because it was not directed to the choice of sentence, life in
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prison
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or
death,
that
And
Barnes’
determine.
asserting
that
the
Pg: 78 of 87
the
jury
was
allegations
juror
and
her
ultimately
can
pastor
charged
fairly
be
conversed
read
about
to
as
the
religious implications of serving on a jury, or even serving on
a jury in a capital case, but not about the appropriateness of
any specific sentencing choice that the jury was charged to make
regarding
conclude
Barnes.
that
this
Therefore,
type
of
a
fair-minded
communication
was
jurist
not
could
“about
the
matter pending before the jury” under Remmer. 10
In a similar vein, it would be objectively reasonable to
view the “matter pending before the jury” as the state trial
court’s
charge
to
the
jurors
to
determine
whether
the
appropriate sentence for Barnes under North Carolina law was
life imprisonment or the death penalty.
state
trial
court
charge
jurors
with
At no time did the
deciding
the
eternal
consequences to their soul that they could face as a result of
10
The majority opinion posits that because the trial court
did not instruct the jurors to disregard the closing argument,
it was “squarely presented for the jury’s consideration as part
of their ultimate sentencing decision.”
Maj. Op. 44.
Closing
argument is not evidence, however.
And while the jury
instructions are not part of the joint appendix before this
Court, the sentencing trial proceeded in accordance with the
then-applicable provisions of N.C. Gen. Stat. § 15A-2000, which
delineates specific criteria—based on the evidence presented to
the jury—that the jurors are to use in deciding the appropriate
sentence. See North Carolina v. Barnes, 481 S.E.2d 44, 51 (N.C.
1997) (describing Barnes’ sentencing as proceeding “pursuant to”
N.C. Gen. Stat. § 15A-2000).
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following the court’s instructions in making their sentencing
decision.
The
provocative
closing
argument
of
Barnes’
co-
defendant did not alter “the matter” actually before the jury as
instructed by the state trial court.
Moreover, as the district
court noted, the communication Barnes’ affidavits allege to have
occurred “expressed no opinion on the propriety of the death
penalty and simply indicated that a Christian has a duty to
follow
the
laws
of
the
state,
which,
in
the
case
of
North
Carolina, permitted a jury, in its discretion, to recommend that
a convicted murderer like Barnes serve life in prison or be put
to death[.]”
Dist. Ct. Op. at J.A. 2143-44.
Consequently, fair
minded jurists can disagree as to whether the contact alleged in
this
case
communication
falls
within
“about
a
Remmer’s
matter
scope
pending
of
before
contacts
the
jury.”
and
As
such, I do not believe that Barnes can point to Remmer’s own
parameters to satisfy his burden under AEDPA. 11
11
Notably, this Court’s precedent would also permit such a
reading of Remmer’s “matter pending before the jury” language.
In each instance where we have invoked the Remmer presumption
following
third-party
communication
with
a
juror,
jurors
encountered third parties who expressed their view of a party’s
culpability or appropriate sentence. E.g., Fullwood v. Lee, 290
F.3d 663, 676-84 (4th Cir. 2002) (remanding for an evidentiary
hearing in a § 2254(d)(1) case where the petitioner proffered
evidence that a juror’s “strongly pro-death penalty” husband had
repeatedly attempted to influence his wife to convict the
petitioner and sentence him to death); United States v. Cheek,
94 F.3d 136, 140-44 (4th Cir. 1996) (reversing and remanding for
a new trial based on the Remmer presumption based on juror-third
(Continued)
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The other Supreme Court decisions discussed above do not
alter the conclusion that the state courts reasonably applied
Remmer.
As
noted,
neither
Parker
nor
Remmer
specifically
expounded on the Remmer presumption even though they involved
juror partiality claims.
party
communication
particular manner.
urging
Parker, like Remmer, entailed thirdthat
jurors
cast
their
See Parker, 385 U.S. at 363-64.
vote
in
a
Turner is
also readily distinguishable: even though the defendant did not
allege that the two witness-deputies specifically spoke about
party contact the Court characterized as the juror’s correct
perception that the third party was attempting to bribe him);
Stockton, 852 F.2d at 745-46 (holding that a third party’s
statement to jurors that he hoped “[they] fr[ied] the son-of-abitch” “bore on the exact issue – whether to impose the death
penalty – that the jurors were deliberating at that time”);
Stephens v. South Atlantic Canners, Inc., 848 F.2d 484, 487-89
(4th Cir. 1988) (invoking Remmer’s presumption where the jury
was exposed to statements from an individual who had been
“inadvertently placed on [the] jury panel” during the first day
of trial, “that he knew from his own experience that the
plaintiff’s testimony was correct and that he would vote to
return a verdict against the defendants”); Haley v. Blue Ridge
Transfer Co., 802 F.2d 1532, 1534-38 (4th Cir. 1986) (invoking
Remmer’s presumption where the jury was exposed to statements
from a nonjuror who had inadvertently sat on the jury during the
first day of trial that he would “‘be against the company’
regardless of the evidence” given his personal familiarity with
trucking companies). See also Untied States v. Basham, 561 F.3d
302 (4th Cir. 2009) (affirming district court’s conclusion that
the Government had rebutted the Remmer presumption of prejudice
where juror was alleged to have telephoned multiple media
outlets
to
provide
information
on
the
penalty
phase
deliberations). While these cases do not mean that Remmer could
not be read more broadly, they equally support the view that
Remmer could also reasonably be limited to such circumstances.
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with
the
jurors
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during
their
close
interactions
facilitating the jury’s sequestration, the Court’s concern arose
from these deputies being key prosecution witnesses in the case.
Interaction of this duration, proximity, and intimacy between
trial witnesses and jurors tainted the proceedings in a way that
a single conversation with a non-witness would not inherently
involve.
See Turner, 379 U.S. at 474 (“It would have undermined
the basic guarantees of trial by jury to permit this kind of an
association between the jurors and two key prosecution witnesses
who were not deputy sheriffs.
But the role that [they] played
as deputies made the association even more prejudicial. . . .
Turner’s fate depended upon how much confidence the jury placed
in these two witnesses.”).
on Remmer.
Indeed, Turner did not rely directly
For these reasons, Turner does not govern the state
courts’ adjudication of Barnes’ claim.
Lastly, Smith—the only of these cases directly relying on
Remmer—also involved an entirely different potential influence
on a juror’s decision making than that at issue here.
The
petitioner in Smith alleged that a juror was implicitly biased
because
he
had
submitted
an
employment
prosecutor’s office during the trial.
application
with
the
Relevant to this case,
Smith reiterated that the due process concern was in maintaining
“a jury capable and willing to decide the case solely on the
evidence before it, and a trial judge ever watchful to prevent
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prejudicial
occurrences
and
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to
occurrences when they happen.”
determine
the
effect
455 U.S. at 217.
of
such
Because Smith
involved a juror’s implied, internal bias rather than prejudice
arising from specific third-party contact, it did not refine
Remmer’s guidance regarding what type of communication is “about
the
matter
pending
before
the
jury”
or
when
the
Remmer
presumption is invoked as a result of such contact.
In short, none of these cases alters the basic proposition
contained
in
comprises
“the
Remmer
matter
regarding
pending
what
before
sort
the
of
communication
jury.”
For
these
reasons, I conclude that the North Carolina state courts could
reasonably conclude that the communication alleged here was not
“about
the
matter
pending
before
the
jury”
triggered Remmer’s presumption of prejudice.
state
courts
could
reasonably
conclude
such
that
it
And because the
that
the
Remmer
presumption did not apply to Barnes’ claims, they did not err in
denying him an evidentiary hearing.
E.
I believe the majority’s analysis with respect to Barnes’
evidentiary hearing claim suffers from other analytical errors
as well.
The majority concludes that the state courts “greatly
distorted Barnes’ burden, requiring” him to “present evidence
that a juror was actually biased and that Barnes was therefore
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actually prejudiced by the unauthorized communication.”
Op. at 41.
Maj.
This conclusion misses the point underlying the
state courts’ denial of Barnes’ claims in several ways.
First, the state MAR court did not mention prejudice in its
brief analysis of this issue.
Instead, it concluded that the
issue was procedurally barred and lacked merit because Barnes’
new evidence “add[ed] nothing to the issue as it was presented
during [his] original appeal, and the allegations are subject to
the same analysis inherent in that decision.”
state
MAR
court
did
not
require
more
of
(J.A. 1883.)
Barnes
than
The
Remmer
demands, nor did it distort the appropriate analysis.
To the extent it adopted the North Carolina State Court’s
view, that court’s statements regarding the lack of prejudice
flowed directly from its view of the nature of the communication
alleged to have occurred.
See J.A. 1854-55; 1882-83. 12
That
inquiry is properly part of Barnes’ initial burden of submitting
sufficient
support
for
his
allegations
12
so
as
to
trigger
the
The North Carolina Supreme Court held that “[t]he trial
court was faced with the mere unsubstantiated allegation that a
juror called a minister to ask a question about the death
penalty.
Nothing in this assertion involved ‘extraneous
information’ as contemplated in our Rule 606(b) or dealt with
the fairness or impartiality of the juror. There is no evidence
that the content of any such possible discussion prejudiced
defendants or that the juror gained access to improper or
prejudicial matters and considered them with regard to this
case.” (J.A. 1854-55.)
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protections discussed in Remmer.
It was not enough for Barnes
to allege “contact between a juror and her pastor,” Barnes also
needed to present a credible allegation that this contact was
“about a matter pending before the jury.”
Denying the Remmer
presumption of prejudice or an evidentiary hearing based on the
conclusion
that
the
communication
alleged
did
not
call
into
question the integrity of the verdict, i.e., did not concern the
“matter pending before the jury,” fully complies with Remmer.
To that end, this Court has previously recognized that it
is the petitioner’s initial burden to show prejudicial contact
in
considering
been triggered.
whether
Remmer’s
presumption
of
prejudice
has
See Blauvelt, 638 F.3d at 295 (holding that the
Remmer presumption did not apply where the communication was
innocuous and the defendant “ha[d] failed to present evidence
that the communication was prejudicial”); Wolfe, 565 F.3d at 162
(holding that “the state court’s conclusion that Wolfe failed to
show a prejudicial influence on the jury’s deliberations was not
objectively unreasonable”).
The North Carolina state courts
thus properly analyzed Barnes’ allegations for their potentially
prejudicial
nature
in
order
sufficient to trigger Remmer.
to
determine
whether
they
were
Contrast supra Maj. Op. at 41-42
(criticizing the state MAR Court for “demand[ing] proof of a
Sixth
Amendment
violation
–
that
is,
proof
before Barnes was entitled to any relief”).
84
of
juror
bias
–
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Even more fundamentally, though, under AEDPA, we are not
constrained by the state courts’ rationale in assessing whether
its holding should nonetheless be upheld.
Indeed, the state
courts’ decision need not provide any statement of reasons to
nonetheless create a presumption that a claim was “adjudicated
on
the
merits”
and
thus
subject
Harrington, 131 S. Ct. at 784-85.
“state
court’s
determination
that
to
§
2254(d)
review.
Federal courts review the
a
claim
lacks
merit,”
solely the rationale it provides for that determination.
not
See
id. at 786; see also Wolfe, 565 F.3d at 162 (observing that when
a state court adjudicates a claim on the merits, federal courts
must
apply
decision,
AEDPA’s
even
principles,
when
deferential
the
precedents,
court
or
standard
does
not
rationale
of
review
set
forth
for
its
to
the
the
legal
decision);
Robinson, 438 F.3d at 358 (“In assessing the reasonableness of
the state court’s application of federal law, therefore, the
federal courts are to review the result that the state court
reached, not whether its decision was well reasoned.” (internal
quotation marks and alterations omitted)).
In order for Barnes to prevail, it is not enough for the
majority to conclude that the state courts’ analysis erred in
considering
Barnes’
burden
as
to
prejudice.
Rather,
the
majority needed to consider whether any reading of the record
and Remmer could support the decision to deny a presumption of
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prejudice and evidentiary hearing, even if the state courts’
stated rationale was inadequate or flawed.
S. Ct. at 786.
See Harrington, 131
AEDPA demands no less.
II.
For
the
“fairminded
reasons
jurists
set
could
forth
above,
disagree”
I
as
conclude
to
that
whether
the
communication Barnes alleges to have occurred constituted juror
contact with a third party “about a matter pending before the
jury.”
Neither Remmer nor any subsequent Supreme Court case has
explored
the
applicability
of
the
Remmer
presumption
to
allegations that a juror’s conversation with a third party did
not directly bear upon how the juror would vote.
Given that
Remmer expressed only a general principle, and the Supreme Court
has
recognized
leeway
courts
that
“[t]he
have
in
more
reaching
general
the
outcomes
rule,
in
the
more
case-by-case
determinations,” Harrington, 131 S. Ct. at 786, I believe that
AEDPA’s standard of review settles the Court’s inquiry in this
case.
If this case was before the Court on a direct appeal, a
different analysis would be required to determine whether Barnes
could be entitled to any relief under Remmer.
But that is not
the posture of the case before the Court, and our review under
AEDPA
is
only
whether
the
North
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that
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Remmer
did
not
require
presumption of prejudice or an evidentiary hearing.
either
a
Given the
ambiguities in interpreting what constitutes a “matter pending
before the jury” and a reasonable basis for distinguishing the
applicable Supreme Court precedent, we are constrained by AEDPA.
See Mitchell, 540 U.S. at 18; Robinson, 438 F.3d at 355 (“The
state
court’s
application
of
clearly
established
federal
law
must be ‘objectively unreasonable,’ and ‘a federal habeas court
may not issue the writ simply because that court concludes in
its independent judgment that the relevant state-court decision
applied
clearly
established
federal
law
erroneously
or
incorrectly.’” (quoting Williams, 529 U.S. at 411)).
Because I would hold that the North Carolina state courts
did not unreasonably apply Remmer by concluding that the contact
alleged in Barnes’ affidavits did not trigger a presumption of
prejudice, I would affirm the district court’s denial of Barnes’
§ 2254 petition.
Accordingly, I respectfully dissent.
87
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