Jason Hurst v. Kenneth Lassiter
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:10-cv-00725-TDS-LPA. [999387941]. [13-6]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6
JASON WAYNE HURST,
Petitioner - Appellant,
v.
CARLTON B. JOYNER, Warden, Central Prison, Raleigh, North
Carolina,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:10-cv-00725-TDS-LPA)
Argued:
January 29, 2014
Decided:
July 2, 2014
Before TRAXLER, Chief Judge, and NIEMEYER and SHEDD, Circuit
Judges.
Reversed and remanded by published opinion. Chief Judge Traxler
wrote the opinion, in which Judge Niemeyer and Judge Shedd
joined.
Judge Shedd wrote a separate concurring opinion, in
which Judge Niemeyer joined.
ARGUED: Robert Hood Hale, Jr., ROBERT H. HALE, JR. & ASSOCIATES,
Raleigh, North Carolina, for Appellant.
Mary Carla Hollis,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellee.
ON BRIEF: Roy Cooper, Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.
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TRAXLER, Chief Judge:
Petitioner Jason Wayne Hurst, a North Carolina death row
inmate, appeals the district court’s denial of his petition for
a writ of habeas corpus under 28 U.S.C. § 2254, alleging that
his
Sixth
Amendment
rights
to
an
impartial
jury
and
to
be
confronted with the witnesses against him were violated by an
extraneous communication between a juror and her father during
the
penalty
phase
of
his
capital
murder
trial.
For
the
following reasons, we reverse the district court’s judgment and
remand
for
an
evidentiary
hearing
to
determine
whether
the
extraneous communication had a substantial and injurious effect
or influence on the jury’s verdict.
I.
A.
The
facts
documented
in
underlying
the
state
this
court
capital
decision
conviction and sentence on direct appeal.
murder
are
affirming
well
Hurst’s
See State v. Hurst,
624 S.E.2d 309 (N.C. 2006).
On June 9, 2002, Daniel Branch told his wife that he was
going to Asheboro, North Carolina, to trade guns with Hurst,
with whom he was acquainted.
Branch loaded several guns in his
vehicle and left home in the late morning.
return,
Branch’s
investigation,
wife
North
contacted
Carolina
authorities.
authorities
2
When he failed to
were
During
advised
the
that
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Hurst had been seen in West Virginia driving a vehicle that
matched
the
information
they
had
regarding
Branch’s
vehicle.
Hurst was located and apprehended, and he confessed to killing
Branch with a shotgun and stealing his car.
Branch’s body was
found in the field where Hurst murdered him.
Hurst was convicted by the jury of first-degree murder and,
following
the
penalty
phase,
sentenced
to
death.
The
North
Carolina Supreme Court affirmed, see id., and the United States
Supreme
Court
denied
certiorari
review,
see
Hurst
v.
North
Carolina, 549 U.S. 875 (2006).
On
Relief
June
25,
(“MAR”)
postconviction
alleged
2007,
in
state
relief
violation
Hurst
of
filed
court
a
Motion
seeking,
from
his
death
his
Sixth
among
sentence
Amendment
for
Appropriate
other
based
right
to
things,
upon
an
have
an
impartial jury and to confront his accusers during the penalty
phase of his trial.
Juror
Christina
Hurst based his claim on an affidavit of
Foster,
which
had
been
provided
to
Hurst’s
postconviction investigator, Adam Pfeifer, on April 21, 2007.
Pertinent
to
the
issue
before
us,
Juror
Foster
stated
follows:
7. During the trial, the jurors prayed together. We
did this throughout the time from when we were
selected. The prayer was led by either the foreman or
another older male juror. We prayed for our families
and for what we had to go through.
. . . .
3
as
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9. During the trial, I often had lunch with my father
who
worked
near
the
courthouse.
Prior
to
deliberations, I asked my father where I could look in
the Bible for help and guidance in making my decision
for between life and death. After the jury had found
Mr. Hurst guilty but before we decided his sentence, I
opened my Bible at home because I wanted to read
something to help me with my decision. My father had
given me the section in the Bible where I could find
“an eye for an eye.”
That night after reading that
section in the Bible, it helped me sleep better.
It
didn’t make the decision any easier.
The next day
during deliberations, I voted for the death penalty.
J.A. 441.
Hurst argued that when Juror Foster’s father gave her
the “eye for an eye” citation, he implied that her decision
should be death, entitling Hurst to a new capital sentencing
hearing.
hearing
In the alternative, Hurst requested an evidentiary
to
resolve
any
factual
disputes
pertaining
to
the
extraneous communication.
On August 2, 2007, the state filed a response to the MAR,
as well as a motion to dismiss.
The state argued: (1) that the
“eye for an eye” passage given to Juror Foster by her father did
not constitute extraneous, prejudicial information sufficient to
impeach the jury’s verdict; (2) that the father’s mere act of
providing the passage to his daughter at her request likewise
did not rise to the level of an extraneous prejudicial contact
or
communication
about
the
case;
and
(3)
that
Hurst
had
otherwise failed to present any evidence that Juror Foster’s
father knew what case she was sitting on or that he deliberately
attempted to influence her vote.
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The state court scheduled a hearing for October 19, 2007,
to rule upon the state’s motion to dismiss.
On the morning of
the hearing, Hurst filed a motion seeking leave to depose Juror
Foster, Juror Foster’s father, and Juror Foster’s grandmother.
In
support
of
the
motion,
Hurst
presented
Investigator Pfeifer, dated October 18, 2007.
an
affidavit
from
In the affidavit,
Investigator Pfeifer confirmed that he interviewed Juror Foster
on April 21, 2007, at which time “she agreed to provide [him]
with [the] affidavit which tracked [their] discussion.”
457.
J.A.
Investigator Pfeifer also stated that he had interviewed
Juror Foster’s father on October 9, 2007, who “confirmed that he
had a conversation with his daughter about an ‘eye for an eye’
section of the Bible during his daughter’s deliberations in the
Hurst
trial,”
citation
and
from
Investigator
his
added
that
mother
Pfeiffer’s
he
in
had
South
efforts
to
obtained
Carolina.
interview
the
Biblical
J.A.
Juror
458.
Foster’s
grandmother, however, had been unsuccessful, and Hurst had been
unable to determine exactly which “eye for an eye” verse Juror
Foster’s
father
had
provided
to
his
daughter. 1
Based
1
upon
As we have previously noted, the King James Version of the
Bible contains several “eye for an eye” verses.
The Old Testament contains three such passages: (1)
“Eye for eye, tooth for tooth, hand for hand, foot for
foot,” Exodus 21:24; (2) “Breach for breach, eye for
eye, tooth for tooth: as he hath caused a blemish in a
(Continued)
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Investigator Pfeiffer’s affidavit, Hurst argued that depositions
or an evidentiary hearing were in order to “significantly assist
in
the
search
for
truth
about
conversations with her father.”
Juror
Foster’s
extrajudicial
J.A. 454.
On February 4, 2008, the state court made the following
relevant findings and conclusions:
The
Fourth
Circuit
Court
of
Appeals
has
determined that the Bible does not constitute an
improper external influence in a capital case, whether
read aloud by one juror to the others during
sentencing deliberations, whether read by a juror in
the privacy of his home, or whether read to herself by
a juror during deliberations [citing our holdings in
Robinson v. Polk, 438 F.3d 350 (4th Cir. 2006); Lynch
v.
Polk,
204
Fed.
Appx.
167
(4th
Cir.
2006)
(unpublished); Billings v. Polk, 441 F.3d 238 (4th
Cir. 2006); and Lenz v. Washington, 444 F.3d 295 (4th
Cir. 2006)].
Moreover, defendant presented no evidence that
juror Foster’s father knew what case juror Foster was
sitting on, and no evidence that he deliberately
attempted to influence her vote by directing her to a
specific passage in the Bible.
Instead, defendant
man, so shall it be done to him again,” Leviticus
24:20; (3) “And thine eye shall not pity; but life
shall go for life, eye for eye, tooth for tooth, hand
for hand, foot for foot,” Deuteronomy 19:21.
Robinson v. Polk, 438 F.3d 350, 358-59 n.8 (4th Cir. 2006).
However, “in the New Testament Sermon on the Mount, Jesus
said, ‘Ye have heard that it hath been said, An eye for an
eye, and a tooth for a tooth: But I say unto you, that ye
resist not evil: but whosoever shall smite thee on thy
right cheek, turn to him the other also.’ Matthew 5:38-39.”
Id.
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presented a motion for depositions of juror Foster,
her father, and her grandmother.
J.A. 481-82.
The state court denied Hurst’s claim on the merits
and denied his motion for discovery.
B.
On September 20, 2010, Hurst filed a petition for federal
habeas relief under 28 U.S.C. § 2254, again raising his Sixth
Amendment juror-influence claim.
judgment.
The state moved for summary
In response, Hurst filed a motion to depose the same
three witnesses.
On the recommendation of the magistrate judge,
the district court denied the motion for depositions, declined
Hurst’s request for discovery or an evidentiary hearing, and
dismissed the habeas petition.
The district court concluded as
follows:
The United States Supreme Court has not held that
the reading of a Bible verse constitutes “a matter
before the jury” or raises a presumption of prejudice
as an improper extrinsic influence.
In light of the
Fourth Circuit cases holding that, in the context of
habeas
review,
a
juror’s
consultation
and/or
recitation of Bible verses does not trigger a
presumption of prejudice (indeed, does not even
constitute an extrinsic influence), it cannot be said
that the state MAR court’s determination -- that the
father’s reference to an “eye for an eye” Biblical
passage in this case did not give rise to a
presumption of prejudice under Remmer -- was an
unreasonable application of, or contrary to, federal
law as determined by the United States Supreme Court.
Accordingly, [the] [c]laim . . . fails.
J.A. 361 (emphasis in original) (citing Remmer v. United States,
347 U.S. 227 (1954)).
However, the district court granted a
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certificate
whether
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of
Juror
appealability
Foster’s
violated
Hurst’s
reasons,
we
Sixth
reverse
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with
respect
extraneous
Amendment
the
judgment
to
contact
rights.
of
the
the
with
For
issue
her
the
district
of
father
following
court
and
remand for an evidentiary hearing.
II.
A.
Under 28 U.S.C. § 2254(d), as revised by AEDPA, a federal
court may grant habeas relief to a state prisoner only if the
state court’s adjudication of the merits of the constitutional
claim at issue was (1) “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), or (2) “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).
is
“contrary
to”
clearly
A state court’s decision
established
Supreme
Court
precedent
only if it is “substantially different” from that precedent.
Williams
(Terry)
v.
Taylor,
529
U.S.
362,
405
(2000).
The
decision is “an unreasonable application of” clearly established
Supreme
Court
unreasonable.”
As
the
precedent
only
if
it
is
“objectively
has
increasingly
Id. at 409.
United
States
Supreme
Court
cautioned, AEDPA significantly constrains our review of state
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court decisions on federal constitutional claims.
We are not at
liberty to substitute our judgment for that of the state court
on matters of federal constitutional law, even if we believe the
state court decision was incorrect.
is
not
whether
a
federal
court
“The question under AEDPA
believes
the
state
court’s
determination was incorrect but whether that determination was
unreasonable – a substantially higher threshold.”
Schriro v.
Landrigan, 550 U.S. 465, 473 (2007) (emphasis added); see also
Harrington v. Richter, 131 S. Ct. 770, 785 (2011).
The state
court decision may be deemed unreasonable “only if it is so
erroneous that ‘there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with th[e]
[Supreme] Court’s precedents.’”
Nevada v. Jackson, 133 S. Ct.
1990, 1992 (2013) (per curiam) (quoting Harrington, 131 S. Ct.
at 786).
B.
The Sixth and Fourteenth Amendments to the United States
Constitution “guarantee[] to the criminally accused a fair trial
by a panel of impartial, ‘indifferent’ jurors.”
366 U.S. 717, 722 (1961).
Irvin v. Dowd,
They also protect “[t]he right of
confrontation” which “requires that the ‘jury’s verdict must be
based upon the evidence developed at the trial.’”
Polk,
438
F.3d
350,
359
(4th
Cir.
Louisiana, 379 U.S. 466, 472 (1965)).
9
2006)
(quoting
Robinson v.
Turner
v.
At its core, these Sixth
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Amendment
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rights
are
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designed
to
ensure
“‘that
the
evidence
developed against a defendant shall come from the witness stand
in a public courtroom where there is full judicial protection of
the defendant’s right[s].’”
Id. (quoting
Turner, 379 U.S. at
472) (alteration in original).
The privacy and protection concerns that inevitably arise
when one seeks to impeach a jury’s verdict, however, are also
well established.
“Despite the[] venerable protections afforded
to criminal defendants, the Sixth Amendment does not require
that all evidence introduced by the defendant tending to impeach
the jury’s verdict be considered by the courts.”
Id.
“In fact,
the common-law rule generally ‘prohibited the admission of juror
testimony to impeach a jury verdict.’”
United States, 483 U.S. 107, 117 (1987)).
Id. (quoting Tanner v.
This common-law rule,
now codified in Federal Rule of Evidence 606(b), prohibits juror
testimony to impeach the verdict, subject to three exceptions,
two of which are relevant here:
“A juror may testify about
whether . . . extraneous prejudicial information was improperly
brought
to
the
jury’s
attention”
or
whether
“an
outside
influence was improperly brought to bear on any juror.”
Fed. R.
Evid. 606(b)(2)(A)&(2)(B); 2 see also Mattox v. United States, 146
2
A juror may also testify concerning whether “a mistake was
made in entering the verdict on the verdict form.”
Fed. R.
Evid. 606(b)(2)(C).
10
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U.S.
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140,
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149
(1892)
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(“[T]he
evidence
of
jurors,
as
to
the
motives and influences which affected their deliberations, is
inadmissible either to impeach or to support the verdict.
But a
juryman may testify to any facts bearing upon the question of
the existence of any extraneous influence, although not as to
how far that influence operated upon his mind.”).
In
Mattox,
the
Supreme
exception
and
remanded
for
defendant
unsuccessfully
Court
a
new
applied
attempted
trial
to
this
where
introduce
common-law
a
convicted
affidavits
to
the trial court setting forth prejudicial, extraneous statements
made by a bailiff to the jury about the defendant, as well as a
damaging newspaper article about the case that had been read to
the jury.
See id. at 143-44.
The Supreme Court held that such
“[p]rivate communications, possibly prejudicial, between jurors
and third persons, or witnesses, or the officer in charge, are
absolutely
forbidden,
and
invalidate
the
unless their harmlessness is made to appear.”
Thereafter,
in
Remmer
v.
United
verdict,
at
least
Id. at 150.
States,
347
U.S.
227
(1954), the Supreme Court considered an alleged bribery attempt
of a juror during trial, and the FBI’s investigation of the
attempt, all of which was handled by the district court in an ex
parte proceeding prior to the verdict being delivered.
After
learning of the incident through post-trial press accounts, the
defendant moved for a new trial and requested “a hearing to
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the
circumstances
effect on the jury.”
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surrounding
Id. at 228.
the
incident
and
its
Building upon its earlier
precedent in Mattox, the Supreme Court held that:
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 presumptively
prejudicial . . . .
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. at 229 (emphasis added).
Court
nor
actually
the
defendant
transpired,
or
knew
Unlike in Mattox, neither the
from
whether
the
the
occurred were harmful or harmless.”
existing
incidents
Id.
record
that
may
“what
have
The Court held that
“[t]he trial court should not decide and take final action ex
parte on information such as was received in this case, but
should determine the circumstances, the impact thereof upon the
juror, and whether or not it was prejudicial, in a hearing with
all interested parties permitted to participate.”
Id. at 229-
30. 3
3
Interpreting and applying these Supreme Court cases, this
circuit has formulated a burden-shifting approach for analyzing
a convicted defendant’s allegations that his Sixth Amendment
rights were violated by an extraneous communication or contact
with a juror during the pendency of a trial. “First, the party
attacking the verdict must introduce competent evidence that
there was an extrajudicial communication or contact, and that it
was “‘more than innocuous interventions.’” Howard v. Moore, 131
F.3d 399, 422 (4th Cir. 1997) (en banc) (quoting United States
(Continued)
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III.
Presented with evidence of the communication between Juror
Foster and her father about the Bible verse, the state court
considered
whether
extraneous
prejudicial
information
or
evidence had been brought to Juror Foster’s attention (i.e., the
Bible verse itself), as well as whether an outside influence was
improperly brought to bear upon Juror Foster.
In doing so, the
state court relied upon several Sixth Amendment “Bible-verse”
cases from our circuit, most notably our decision in Robinson.
In Robinson, a North Carolina death row inmate claimed that
his Sixth Amendment right to an impartial jury had been violated
during the sentencing phase of his trial when one of the jurors
asked the bailiff for a Bible, received it, and then read “eye
for
an
eye”
passages
to
the
other
jurors
in
an
effort
to
persuade them to “change their position from one favoring a life
sentence to one favoring a death sentence.”
at
358
(internal
quotation
marks
Robinson, 438 F.3d
omitted).
The
state
court
denied the claim without an evidentiary hearing.
v. Cheek, 94 F.3d 136, 141 (4th Cir. 1996)).
“If this
requirement is satisfied, the Remmer I presumption automatically
arises.” Id. Once this initial showing is made and the Remmer
presumption of prejudice arises, “the burden shifts to the
prevailing party [at trial] to demonstrate that there exists no
reasonable possibility that the jury’s verdict was influenced by
[the] improper communication.”
Id. (internal quotation marks
omitted).
13
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After
considering
precedents,
decision
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we
Remmer
concluded
denying
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and
that
petitioner
the
the
relief
related
North
was
not
application of clearly established federal law.
Supreme
Carolina
an
Court
court’s
unreasonable
We held that:
it would have been reasonable for the MAR court to
conclude that the Bible had no bearing on any fact
relevant
to
sentencing,
and
was
therefore
not
tantamount to “evidence” that was used against him at
sentencing. . . . In the end, the jury concluded that
the
balance
of
the
aggravating
and
mitigating
circumstances warranted imposing the death penalty. .
. .
[N]o Biblical passage - including the ones we
assume were read - had any evidentiary relevance to
the jury’s determination of the existence of these
aggravating and mitigating circumstances.
Id. at 363.
We additionally held that:
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,
[about the matter pending before the jury,] and that
the common-law rule against allowing juror testimony
applied.
See Remmer, 347 U.S. at 229.
Unlike these
occurrences, which impose pressure upon a juror apart
from the juror himself, the reading of Bible passages
invites the listener to examine his or her own
conscience from within.
Id. (emphasis
added).
Although
a
third
party,
the
bailiff,
provided the Bible to the juror at the latter’s request, we
found that distinction unavailing as well:
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
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was nothing more than an innocuous intervention into
the jury’s deliberations. . . .
The MAR court
reasonably could have concluded that the bailiff’s
actions in fulfilling the juror’s request did not,
without more, turn the Bible into an external
influence.
Id. at 366 (citation omitted). 4
Both
the
state
MAR
court,
and
the
Respondent
in
this
appeal, rely upon our decision in Robinson as support for the
determination that Hurst failed to make the requisite showing to
benefit
from
Robinson,
Foster’s
the
did
Remmer
Respondent
father
prejudicial
verse
the
argues,
of
the
her
did
not
information,”
and
his
mere
level
of
rise
to
the
prejudice.
Bible
to
not
gave
presumption
verse
constitute
act
an
of
As
that
in
Juror
“extraneous
providing
improper,
the
external
influence.
Recently, however, in Barnes v. Joyner, 2014 WL 1759085
(4th Cir. 2014), we held that “Remmer clearly established not
only
a
presumption
entitlement
to
presents
credible
a
an
of
prejudice,
evidentiary
allegation
4
but
also
a
hearing,
when
the
of
communications
defendant’s
defendant
or
contact
As the state MAR court correctly observed, this court has
held firm to the view that Bible-verse readings, whether
occurring privately or in the jury room, do not alone constitute
extraneous prejudicial information or an outside influence
improperly brought to bear upon the jury.
See Lenz v.
Washington, 444 F.3d 295, 300-01 (4th Cir. 2006);
Billings v.
Polk, 441 F.3d 238, 248-49 (4th Cir. 2006); Lynch v. Polk, 204
Fed. Appx. 167, 175 (4th Cir. 2006); see also Burch v. Corcoran,
273 F.3d 577, 591 (4th Cir. 2001).
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between a third party and a juror concerning the matter pending
before the jury.”
Id. at *10; see also id. at *12 (“[I]t is
clearly established federal law for purposes of our review under
AEDPA that a defendant is entitled to a hearing when he or she
presents
a
credible
allegation
of
communications
or
contact
between a third party and a juror concerning the matter pending
before the jury.”).
Once the defendant presents such a “genuine
allegation,” the “presumption of prejudice must be applied, and
. . . a hearing must be held.”
Id. at *14 (emphasis added).
In Barnes, defense counsel, in closing arguments, suggested
to the jury that “if [the] jurors voted for the death penalty,
they
would
one
defendants.”
day
face
Id. at *4.
God’s
judgment
for
killing
the[]
Barnes presented evidence, both to the
trial court and the state MAR court, that one of the jurors
contacted
her
pastor
during
the
sentencing
discuss the defense counsel’s argument.
deliberations
to
Barnes also alleged
that during this conversation the pastor directed the juror to a
biblical passage that contradicted the passage defense counsel
had relied upon.
The juror, in turn, shared the passage with
her fellow jurors during deliberations.
See id.
therefore,
presented
was
whether
Barnes
had
The question,
a
credible
allegation that the communication or contact between the juror
and her pastor “concerned the matter pending before the jury.”
Id. at *15.
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There was no evidence presented that the pastor and the
juror discussed the facts of the specific case, or his views
about the death penalty, or that he attempted to persuade the
juror to vote a particular way.
However, we held that the
juror’s extraneous conversation with her pastor “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 was, therefore, ‘about the matter
pending before the jury.’”
Id. at *17.
We held as follows:
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 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.
Id. at *16.
be
“To conclude otherwise,” we held, “would not simply
incorrect
unreasonable.”
or
erroneous;
Id. at *17.
it
would
be
objectively
We also distinguished our prior
precedent in Robinson, concluding that:
the only similarity between the instant case and the
‘Bible in the jury room’ line of cases [was] the Bible
itself.
Unlike in Robinson, where the juror in
question was simply given a Bible and read from it in
the jury room, [petitioner] has alleged that [the
juror] was actually directed to a specific biblical
passage by [the third party.]
We alluded that
Robinson might have been a different case if the
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bailiff had “instructed the jury to consult the Bible”
or done “anything other than simply provide the Bible
upon the juror’s request.”
Id. at *19.
Our
case.
holding
in
Barnes
dictates
the
same
result
in
this
According to the affidavits presented to the state MAR
court, Juror Foster asked her father where she “could look in
the Bible for help and guidance in making [her] decision for
between life and death.”
J.A. 441.
He, in turn, directed her
to an (as yet) undetermined “eye for an eye” verse, which she
consulted in private the night before returning the verdict.
The affidavits did not allege that Juror Foster discussed
with her father the facts or evidence that had been presented in
the trial, or the status of the jury’s deliberations.
there
any
opinion
evidence
about
the
that
case
Juror
or
Foster’s
attempted
father
to
Nor was
expressed
influence
her
any
vote.
Nevertheless, Hurst presented a credible allegation of a private
communication
entitling
about
Hurst
to
evidentiary hearing.
the
matter
pending
the
presumption
of
before
the
prejudice
jury,
and
an
Accordingly, we hold, as we did in Barnes,
that the state court’s failure to apply the Remmer presumption
and to conduct an evidentiary hearing in light of this showing
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was contrary to or an unreasonable application of the Supreme
Court precedents applicable to juror-influence claims. 5
IV.
Our conclusion that the state court unreasonably applied
Supreme
Court
precedent,
however,
does
not
end
our
inquiry.
Hurst is not entitled to federal habeas relief unless we are
also convinced that the communication between Juror Foster and
her father “had a ‘substantial and injurious effect or influence
in determining the jury’s verdict.’”
Fullwood v. Lee, 290 F.3d
663, 679 (4th Cir. 2002) (quoting Brecht v. Abrahamson, 507 U.S.
619, 637 (1993)); see also Hall v. Zenk, 692 F.3d 793, 805 (7th
Cir. 2012) (noting that the petitioner’s “initial victory is
more theoretical that practical, since he still must establish
that
he
was
prejudiced
by
the
state
courts’
constitutional
error”).
On
the
present
record,
Hurst
cannot
meet
this
burden.
Therefore, he has requested an opportunity to now develop his
claim in an evidentiary hearing before the district court.
As
was the case in Barnes, Hurst contends that the state court’s
failure
to
investigate
Juror
Foster’s
5
communication
with
her
In accordance with our decision in Robinson, the state
court reasonably determined that the mere existence of the Bible
verse in the hands of Juror Foster and her consideration of it
was not extraneous prejudicial information that violated his
Sixth Amendment rights.
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father gave the district court “no basis from which to determine
whether
[the
communication]
1759085, at *19.
U.S.C.
§
was
harmless.”
Barnes,
2014
WL
The State, on the other hand, argues that 28
2254(e)(2)
prohibits
us
from
granting
him
that
opportunity in this case because, even if Hurst has met the §
2254(d) requisites, his failure to exercise proper diligence in
developing his claim in state court deprives him of the right to
do so now.
We disagree.
Section 2254(e)(2) “imposes a limitation on the discretion
of federal habeas courts to take new evidence in an evidentiary
hearing.”
(2011).
Cullen
v.
Pinholster,
131
S.
Ct.
1388,
1400-01
“A district court may not grant an evidentiary hearing
to a habeas petitioner if the petitioner ‘failed to develop the
factual
basis
of
a
claim,’”
in
state
court,
28
U.S.C.
§
2254(e)(2), due to “lack of diligence, or some greater fault,
attributable
to
the
prisoner
or
the
prisoner’s
counsel.”
Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000).
“Like §
2254(d)(1), [§ 2254(e)(2)] carries out AEDPA’s goal of promoting
comity,
first
finality,
and
opportunity
to
federalism
by
review
claim,
a
giving
state
and
constitutional violation in the first instance.”
to
courts
the
correct
any
Cullen, 131 S.
Ct. at 1401 (internal quotation marks and alteration omitted).
Moreover, “[s]ection 2254(e)(2) continues to have force [even]
where § 2254(d)(1) does not bar federal habeas relief.”
20
Id.
It
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“still
Filed: 07/02/2014
restricts
consider
new
the
Pg: 21 of 25
discretion
evidence
when
of
federal
deciding
habeas
claims
that
courts
were
to
not
adjudicated on the merits in state court,” and “ensure[s] that
federal courts sitting in habeas are not an alternative forum
for trying facts and issues which a prisoner made insufficient
effort to pursue in state proceedings.”
Id. (internal quotation
marks and alteration omitted).
“[T]he
requirements
that
petitioners
exhaust
their
state
remedies and diligently develop the record in state court are
exacting burdens,” and “new evidence submitted in federal court
that fundamentally alters a claim presented in state court will
render that claim unexhausted.”
Winston v. Pearson, 683 F.3d
489, 497 (4th Cir. 2012) (internal quotation marks omitted).
Moreover, “that a petitioner requested an evidentiary hearing
from the state court, without more, might not always suffice to
satisfy AEDPA’s diligence requirement.”
Id.
In this case, however, Hurst did not merely seek to engage
in a fishing expedition to uncover evidence of juror misconduct
that he could and should have investigated and presented to the
state MAR court in the first instance.
Rather, he presented
evidentiary affidavits in support of a specific Sixth Amendment
claim to the state MAR court, sufficient to entitle him to the
Remmer
hearing.
presumption
of
prejudice
and
a
Remmer
evidentiary
He then requested both discovery and an evidentiary
21
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hearing
Filed: 07/02/2014
before
communication
specifically,
prejudiced
the
between
the
the
unreasonably
state
Pg: 22 of 25
MAR
Juror
Foster
question
verdict.
denied
court
of
to
and
her
whether
Because
Hurst’s
explore
motion
the
father
their
the
and,
more
conversation
state
for
private
further
MAR
court
evidentiary
development, Hurst did not “fail[] to develop the factual basis
of
[his]
claim”
under
§
2254(e),
and
we
are
left
with
an
incomplete and inadequate record for review.
On remand, Hurst will be given the opportunity to develop
the
record
as
it
pertains
to
Juror
Foster’s
extraneous
conversation with her father, but he will not be entitled to the
Remmer
presumption
communication
had
in
a
attempting
influence on the jury’s verdict.
at *20.
demonstrate
that
and
substantial
to
injurious
effect
the
or
See Barnes, 2014 WL 1759085,
“[T]o be entitled to habeas relief,” Hurst “will need
to affirmatively prove actual prejudice by demonstrating that
the jury’s verdict was tainted by the extraneous communication
between” Juror Foster and her father.
Id.
V.
For the foregoing reasons, the judgment of the district
court is reversed and the matter remanded for an evidentiary
hearing on the issue of whether the communication between Juror
Foster and her father about the Bible verse had a substantial
22
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and
Doc: 51
injurious
Filed: 07/02/2014
effect
or
Pg: 23 of 25
influence
in
determining
the
jury’s
verdict.
REVERSED AND REMANDED
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SHEDD, Circuit Judge, concurring:
In view of the Supreme Court’s recent admonition in White
v. Woodall, 134 S.Ct. 1697, 1706 (2014) (emphasis in original),
that “[s]ection 2254(d)(1) provides a remedy for instances in
which a state court unreasonably applies this Court’s precedent;
it does not require state courts to extend that precedent or
license federal courts to treat the failure to do so as error,”
I believe the district court correctly determined that the state
MAR
court
States,
did
347
not
U.S.
unreasonably
227,
229
interpret
(1954),
in
Remmer
denying
v.
Hurst
United
relief.
Thus, if we were writing on a clean slate, I would affirm the
district court’s grant of summary judgment to the state.
However, I agree with Judge Traxler that, given our recent
sweeping
decision
in
Barnes
v.
Joyner,
--
F.3d
--,
2014
WL
1759085 (4th Cir. 2014), we are constrained to vacate the grant
of
summary
hearing.
judgment
and
remand
this
case
for
an
evidentiary
Although I recognize that Barnes controls the outcome
in this case, I note that our opinion in Barnes “acknowledges
AEDPA’s constraints only in the abstract, while simultaneously
analyzing the case at bar as if it were on direct appeal,”
Barnes, 2014 WL at *21, (Agee, J., dissenting) and in so doing
“disregard[ed] perfectly reasonable interpretations [of Supreme
Court
precedent]
and
hence
deferential standard of review,”
24
contravene[ed]
§
2254(d)’s
White, 134 S.Ct. at 1704.
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Notwithstanding these reservations, I concur.
25
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