BARNES v. BRANKER

Filing 28

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 3/28/2013 ADOPTING the Magistrate Judge's Recommendation 22 ; that the petition (Doc. 1 ) be DENIED. In this capital case, Petitioner has made a sufficiently substanti al showing of the denial of a constitutional right under 28 U.S.C. § 2253(c)(2) to warrant the grant of a certificate of appealability with respect to the issue whether a juror's contact with her pastor violated Petitioner's Sixth Amendment right to a fair trial. A certificate of appealability is therefore issued on this question. 28 U.S.C. § 2253(c)(3). A Judgment will be entered contemporaneously with this Memorandum Opinion and Order. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

WILLIAM LEROY BARNES,

)
)
)
)
)
)
)
)
)

Petitioner,
v.
KENNETH LASSITER, 1
Respondent.

1:08-cv-00271

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
Petitioner William Leroy Barnes (“Barnes” or “Petitioner”)
brings

this

challenging

habeas
his

proceeding

underlying

under

28

conviction

U.S.C.

and

§

death

2254,

sentence

resulting from his role in the 1992 murders of B.P. and Ruby
Tutterow.

Barnes’ petition was referred to the United States

Magistrate

Judge,

petition.

(Doc. 22.)

who

entered

below,

the

Recommendation

to

deny

the

Notice was served on the parties, and

Barnes filed timely objections.
forth

a

Recommendation

(Doc. 26.)
will

be

For the reasons set
adopted,

as

further

explained herein, and the petition will be denied.

1

At the time the petition for writ of habeas corpus was filed, the
named Respondent was Gerald Branker, the Warden of North Carolina’s
Central Prison.
Since then, Mr. Branker has retired.
Kenneth
Lassiter, who is now the Warden, will be substituted as Respondent.
See Fed. R. Civ. P. 25(d).

I.

BACKGROUND
Barnes was convicted of first-degree murder on January 25,

1994, in the Superior Court of Rowan County, North Carolina.
His conviction and death sentence were affirmed by the Supreme
Court of North Carolina, State v. Barnes, 345 N.C. 184, 481
S.E.2d 44 (1997), and the United States Supreme Court denied
certiorari

review,

Barnes

v.

North

Carolina,

523

U.S.

1024

(1998).
In

February

1999,

Barnes

activated

North

Carolina’s

procedural mechanism for state post-conviction review by filing
a Motion for Appropriate Relief (“MAR”). 2

An evidentiary hearing

was held on certain, but not all, issues raised by Barnes.

On

May 31, 2007, the trial court entered an Order denying the MAR.
The

Supreme

certiorari

Court

review.

of

North

See

Carolina

State

v.

Barnes,

subsequently
362

N.C.

denied

239,

660

S.E.2d 53 (2008).
Barnes filed his present petition on April 17, 2008.
12.)

The United States Magistrate Judge reviewed the petition

and issued a Recommendation denying all twelve claims.
22.)

(Doc.

(Doc.

Barnes now objects to several aspects of the Magistrate

Judge’s Recommendation.

(Doc. 26.)

2

Barnes amended his MAR on January 24, 2001 and on September 4, 2002.
The court refers to the most current version simply as the MAR.

2

The facts underlying Barnes’ conviction are set forth in
the

Recommendation

and

will

not

be

repeated

here.

However,

specific facts will be addressed below in connection with each
objection raised by Barnes.
Although

Barnes’

habeas

petition

raised

twelve

specific

challenges concerning his state court conviction, his objections
to

the

Recommendation’s

following

claims:

conclusions

discriminatory

can

use

of

be

grouped

peremptory

into

the

challenges

against an African-American prospective juror; the prejudicial
misconduct of a juror who contacted her pastor and read the
Bible

during

ineffective

trial’s

assistance

investigate
alleged

the

and

failure

present
to

of

penalty
trial

mitigation

disclose

three

phase

deliberations;

counsel

in

failing

evidence;

and

the

witness

to

State’s

statements

and

a

police log.
This

court

reviews

timely

Judge’s recommendation de novo.
Civ.

P.

72(b)(3).

Where

objections

to

a

Magistrate

28 U.S.C. § 636(b)(1); Fed. R.

a

party

fails

to

object

to

a

recommendation, however, the court’s review is for clear error.
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005).
II.

ANALYSIS
As

the

recitation

of

Magistrate
the

Judge

standard

of

recognized
review,

3

the

in

his

thorough

Antiterrorism

and

Effective

Death

Penalty

Act

of

1996

(“AEDPA”)

establishes

a

“deferential and highly constrained” scope of review for federal
courts

engaged

in

“collateral

review

[of]

a

state

proceeding that adjudicated a claim on the merits.”
Branker, 519 F.3d 168, 216 (4th Cir. 2008).

court

Golphin v.

A federal court may

grant Barnes’ petition only if it determines that the underlying
state

court

decision

was

contrary

to,

or

an

unreasonable

application of, clearly established federal law as determined by
the Supreme Court.

Jackson v. Johnson, 523 F.3d 273, 276 (4th

Cir.

28

2008)

(citing

U.S.C.

§

2254(d)(1)).

A

state

court

unreasonably applies federal law when it “identifies the correct
governing legal principle . . . but unreasonably applies that
principle to the facts of the prisoner’s case.”

Williams v.

Taylor, 529 U.S. 362, 413 (2000) (opinion of O’Connor, J., for
the Court).
are

A state court’s factual determinations, meanwhile,

presumed

to

be

correct

evidence” to the contrary.

absent

“clear

and

convincing

28 U.S.C. § 2254(e)(1); Miller-El v.

Dretke, 545 U.S. 231, 240 (2005).
A.

Batson Claim

Barnes

first

objects

to

the

Magistrate

Judge’s

recommendation that this court deny his challenge to the State’s
use

of

Melodie

a

peremptory

Hall

(“Hall”),

challenge
a

to

strike

32-year-old

prospective

African-American

juror
woman.

Petitioner argues that under Batson v. Kentucky, 476 U.S. 79
4

(1986), the North Carolina Supreme Court’s rejection of this
claim was contrary to and an unreasonable application of clearly
established federal law.
overlooked

the

fact

He contends that the Magistrate Judge

that

the

prosecutor’s

notes

on

a

jury

selection chart include the notation “age, race, G + d. pen.
crit.” under Hall’s name, the fact that the state court failed
to

conduct

Barnes

an

evidentiary

contends

shows

African-American

a

hearing,
pattern

jurors

based

statistical
of

on

evidence

impermissibly

their

race,

that

striking

and

North

Carolina’s “misguided approach” to resolving questions about the
use of peremptory challenges.
These objections are without merit.

Even assuming that

Barnes can rely on a notation contained in the prosecutor’s copy
of a jury selection sheet, see United States v. Barnette, 644
F.3d 192, 210 n.* (4th Cir. 2011) (finding no error in trial
court’s refusal to allow defendant to review prosecutor’s jury
selection notes), 3 the ambiguous notation “age, race, G + d. pen.
crit.” is not indicative of a discriminatory intent on the part
of the prosecutor.
pretextual
proximity

3

The prosecutor articulated a number of non-

reasons
in

age

Cf. Miller-El,
selection notes).

for

striking

to

the

545

U.S.

Hall

defendants,

at

266

5

from
her

(relying

the

jury:

her

that

her

prosecutor’s

jury

concern

on

acquaintances might criticize her in the event she participated
in the imposition of a death sentence, and her inability to
maintain eye contact during questioning. 4

State v. Barnes, 345

N.C. 184, 211, 481 S.E.2d 44, 58 (1997).

In addition, although

none of the prosecutor’s other notations appears to indicate a
juror’s
phrase

race,

nearly

scribbled

all

nearby

jurors’
(see

names

Doc.

have

12-5),

some

making

shorthand
it

equally

likely that the prosecutor was using his notes to provide “quick
access to information about each juror” and to help “deal with
any potential Batson challenges.”
Barnes’

citation

therefore,

does

to
not

the

Barnette, 644 F.3d at 211.

prosecutor’s

undermine

the

shorthand

trial

court’s

notation,
factual

determination that the prosecutor did not engage in purposeful
discrimination in striking Hall from the jury.
Barnes’

other

arguments

are

equally

unpersuasive.

He

argues that North Carolina’s courts apply a misguided approach
to resolving Batson challenges in light of Miller-El, 545 U.S.
at

265,

which

instructs

courts

4

to

“cumulatively”

view

the

Although the trial court determined that a prima facie case of
discrimination had not been shown, it asked the prosecutor to list his
reasons for striking Hall out of “an abundance of caution.” State v.
Barnes, 345 N.C. 184, 210, 481 S.E.2d 44, 58 (1997).
“Once a
prosecutor has offered a race-neutral explanation for the peremptory
challenges and the trial court has ruled on the ultimate question of
intentional discrimination, the preliminary issue of whether the
defendant had made a prima facie showing becomes moot.” Hernandez v.
New York, 500 U.S. 352, 359 (1991) (plurality opinion).

6

evidence when evaluating claims of potential discrimination in
juror selection.

Yet Barnes’ statistical evidence that 6 of 9

(66%) eligible African-American jurors were struck in comparison
to

10

of

itself

to

54

(19%)

show

eligible

that

the

white

jurors

is

Supreme

Court

of

unreasonably applied federal law.

insufficient
North

by

Carolina

See Golphin, 519 F.3d at 187

(finding no Batson violation where the prosecution struck 71% of
eligible

African-American

jurors

and

explaining

that

“statistical evidence . . . alone cannot carry the day”).
Barnes argues that the prosecutor’s reasons for striking
Hall were pretextual because many of the reasons -- the fact
that Hall was single and in the approximate age range as Barnes
and his co-defendants -- could apply equally to white jurors who
were

accepted.

However,

Barnes

overlooks

a

key

distinction

between the white jurors that the State accepted and Hall: their
comfort with the death penalty.

When asked whether her friends

or co-workers might criticize her if she returned a verdict of
guilty and a sentence of death, Hall hesitated, was reluctant to
make eye contact, and indicated that she would be criticized. 5

5

The trial judge indicated that he was “not in a position to determine
whether eye contact has been made with any lawyer” (Trial Transcript
(“Tr.”), Vol. I at 374), but after considering the prosecutor’s
reasons for striking juror Hall, determined that the stated reasons
were “not pretextual” (id. at 375).
“[T]he trial judge was in the
best position to evaluate the credibility of the prosecutor’s
demeanor-based reasons” and, thus, deference to the trial court’s

7

(Trial

Transcript

expressed

support

(“Tr.”),

Vol.

for

death

the

I

at

342.)

penalty,

Hall

but

ultimately

her

hesitation

stands in contrast to potential jurors Franklin Hess (Tr., Vol.
II at 146), Myra Poteat (id. at 145), Micky Deutsch (id. at 23031), Kelly Irvin (Tr., Vol. I at 351), Carl Wilson (Tr., Vol. II
at 242-43), and Timothy Archie (Tr., Vol. III at 53-54), all of
whom were either single or close to the defendants’ age but who
expressed unequivocal support for the death penalty. 6

Because a

“juror’s demeanor (e.g., nervousness, inattention),” Snyder v.
Louisiana, 552 U.S. 472, 477 (2008), and opposition to the death
penalty, Taylor v. Roper, 577 F.3d 848, 857 (8th Cir. 2009)
(concluding

that

a

prospective

juror’s

“previous

answers

suggesting reluctance to impose a sentence of death furnished
substantial

grounds

for

the

trial

court

to

find

that

the

prosecutor's race-neutral explanation was credible”), can serve
as a race neutral reason for exercising a peremptory challenge,

conclusions of fact in such situations is proper.
682 F.3d 1165, 1178 (9th Cir. 2012).
6

Briggs v. Grounds,

Barnes does not mention jurors Phyllis Wilkes or Connie Hess, both
of whom also indicated that they might be subject to criticism from
co-workers or acquaintances for participating in a first degree murder
case. (Tr., Vol. I at 358, 360-61.) However, when these two jurors
were later questioned, both clarified that they would be criticized if
they did not return a death verdict.
(Id. at 362.)
Thus, their
answers are distinguishable from Hall’s.
The record also does not
appear to indicate whether Wilkes or Hess (or both) were AfricanAmerican.

8

Barnes’

argument,

for

this

reason

alone

and

certainly

when

viewed with the other reasons, is without merit.
Barnes has failed to demonstrate that the Supreme Court of
North

Carolina’s

allegation
because

that

of

decision
the

her

to

deny

prosecution

race

was

a

new

struck

contrary

trial
Hall

to

or

based
from

an

on

the

his
jury

unreasonable

application of federal law as determined by the United States
Supreme

Court.

Accordingly,

this

objection

to

the

Recommendation will be overruled.
B.

Sixth Amendment Claim

Barnes’ next argument is that the state court unreasonably
applied established federal law in finding that juror misconduct
did not violate his Sixth Amendment rights to “enjoy the right
to

a

. . .

trial[]

by

an

impartial

jury

. . .

[and

to]

be

confronted with the witnesses against him.”

U.S. Const. amend.

XI.

Jordan

Barnes

contends

that

juror

Hollie

(“Jordan”)

subjected herself and other jurors to external influences when,
in response to a co-defendant’s closing admonition that God will
hold jurors who impose the death penalty accountable for their
decision, she sought Biblical guidance from her pastor and read
an

unidentified

passage

from

the

Bible

during

jury

deliberations.

Barnes contends that the North Carolina courts’

denial

claim

of

his

unreasonably

applied

clearly

established

federal law and that, at a minimum, the state MAR court should
9

have conducted an evidentiary hearing.

Barnes also argues that

the

improperly

Magistrate

Judge’s

Recommendation

saddled

him

with the burden of establishing prejudice despite Supreme Court
authority that any private communication with a juror during a
trial about the matter pending before the jury is presumptively
prejudicial.

(Doc. 22 at 28 (citing Remmer v. United States,

347 U.S. 227, 229 (1954)).) 7

Each argument will be addressed

below.

7

Barnes contends that the “state post-conviction court failed to
adjudicate the merits of [his] properly presented claim” and, thus,
this court “must review [his claim] de novo.” (Doc. 12 at 16.) It is
true that if “a petitioner has properly presented a claim to the state
court but the state court has not adjudicated the claim on the merits”
the court will review “questions of law and mixed questions of law and
fact . . . de novo.”
Fisher v. Lee, 215 F.3d 438, 445 (4th Cir.
2000); cf. Johnson v. Williams, --- S. Ct. ----, 2013 WL 610199, at
*3, *6 (Feb. 20, 2013) (noting that federal claims in state actions
are presumed to be adjudicated on the merits in the absence of any
indication or state-law procedural principles to the contrary).
In this case, Barnes’ initial premise -- that North Carolina’s
courts failed to adjudicate the merits of his claim -- is mistaken.
According to the MAR court, Barnes’ 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.”
(MAR Order at 12-13 (emphasis added).)
Though the MAR court did not cite authority for its imposition of a
procedural bar, the court presumably applied N.C. Gen. Stat. § 15A1419(a)(2), which prevents MAR review of a claim that has been raised
on direct appeal and rejected on its merits. See Ward v. French, 989
F. Supp. 752, 758 (E.D.N.C. 1997) (applying section 15A-1419(a)(2) in
an analogous situation where the North Carolina MAR court failed to
identify which subsection of section 15A-1419 it was applying).
Barnes, in fact, concedes that the MAR court applied section 15A1419(a)(2) in holding that his claim was procedurally barred.
(Doc.
12 at 15.)
Yet the Fourth Circuit has held that section 15A1419(a)(2) “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),
because “a denial under this section is clearly based on the merits,”
Smith v. Dixon, 996 F.2d 667, 674 n.10 (4th Cir. 1993). Thus, de novo
review of Barnes’ claim is inappropriate, and 28 U.S.C. § 2254(d) bars

10

1.

Improper Contact

Barnes’ first argument 8 is that Jordan tainted the jury’s
sentencing

deliberations

by

consulting

with

her

pastor,

Tom

Lomax (“Pastor Lomax”), in the wake of the closing argument of a
co-defendant’s attorney that jurors returning a death sentence
would face God’s judgment for their actions.

Barnes argues that

the North Carolina MAR court erred by not granting him a new
sentencing

or

evidentiary

hearing

when

post-trial

interviews

demonstrated that at least one juror was improperly exposed to
extraneous information.
To

establish

communication

with

(Doc. 12 at 17-18.)

that
a

a

third

juror

party’s

resulted

in

unauthorized
“actual

juror

partiality,” a petitioner 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.”
1988).

Stockton v. Virginia, 852 F.2d 740, 743 (4th Cir.

Thus, “[t]he party who is attacking the verdict bears

habeas relief unless Barnes can demonstrate that the state court’s
decision was “either ‘contrary to’ or involved an ‘unreasonable
application of’” clearly established federal law.
Page v. Lee, 337
F.3d 411, 414-15 & n.1 (4th Cir. 2003).
8

For purposes of Barnes’ habeas petition, the court will accept as
true the factual allegations contained in his evidentiary affidavits
presented to the MAR court. See Bacon v. Lee, 225 F.3d 470, 485 (4th
Cir. 2000) (accepting the truth of evidentiary affidavits submitted in
support of a petitioner’s habeas claim where the MAR court denied an
evidentiary hearing on the claim).

11

the initial burden of introducing competent evidence that the
extrajudicial

communications

innocuous interventions.”

or

contacts

were

more

than

United States v. Basham, 561 F.3d

302, 319 (4th Cir. 2009) (alteration in original) (citation and
internal quotation marks omitted).

If that “minimal” burden is

satisfied, the government bears the responsibility of proving
that

there

is

communication

no

reasonable

influenced

the

Remmer, 347 U.S. at 229.

possibility
jury’s

that

verdict.

the
Id.;

improper
see

also

When making this determination, the

court must “examine the entire picture, including the factual
circumstances and the impact on the juror.”

United States v.

Cheek, 94 F.3d 136, 142 (4th Cir. 1996) (internal quotations
omitted).
But while this accurately describes the underlying legal
standards,

in

the

habeas

deferential standard.
644 (4th Cir. 2012).

context

this

court

has

a

more

United States v. Lawson, 677 F.3d 629,
As noted, Barnes must demonstrate that the

state court’s decision was one contrary to, or an unreasonable
application of, federal law as determined by the Supreme Court.
Moreover, “[b]ecause of the threat collateral attacks pose to
‘finality,

comity,

secure

writ

them.”

the

and

only

if

federalism,’
the

error

habeas

petitioners

‘actual[ly]

may

prejudice[d]’

Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011)

(alterations in original) (internal citations omitted).
12

This

requires

a

injurious

showing
effect

verdict.”

that

or

Lawson,

any

error

influence

677

F.3d

had

a

“substantial

in
644

at

determining
n.19

the

(quoting

and

jury’s

Brecht

v.

Abrahamson, 507 U.S. 619, 637 (1993)).
Barnes raises several arguments in support of his claim
that

Jordan’s

decision

to

Magistrate

contact

with

recommend
Judge

her

death.

improperly

pastor

First,
placed

tainted

he

the

contends

the

burden

jury’s

that

on

the

him

to

establish that Jordan’s extrajudicial communication resulted in
prejudice rather than presuming the existence of prejudice as he
claims

Supreme

however,

Court

misreads

Recommendation.
prejudice,

precedent

the

case

True,

Basham,

requires.

law

Remmer

561

U.S.

and

Barnes’

the

Magistrate

establishes

at

319,

but

argument,

a

this

Judge’s

presumption

of

presumption

is

inapplicable when the court is reviewing under the deferential
standards of 28 U.S.C. § 2254(d).

Lawson, 677 F.3d at 644

(citing

935,

2002)).

Vigil

v.

Zavaras,

298

F.3d

941

n.6

(10th

Cir.

Moreover, where applicable, that presumption “is not

one to be casually invoked.”

United States v. Baptiste, 596

F.3d 214, 221 (4th Cir. 2010) (quoting Stockton, 852 F.2d at
745).

The

established

presumption
that

the

only

arises

unauthorized

after
contact

a

petitioner

“was

of

such

has
a

character as to reasonably draw into question the integrity of

13

the verdict.”

Fullwood v. Lee, 290 F.3d 663, 678 (4th Cir.

2002) (quoting Stockton, 852 F.2d at 743).
Barnes asserts that not only was Jordan’s conversation with
her pastor more than innocuous, it cast a pall of prejudice on
the jury’s decision to recommend a sentence of death.
Magistrate

Judge,

however,

this

court

concludes

Like the

that

Barnes’

allegations, taken as true, are not of such a character as to
reasonably

draw

into

question

the

integrity

of

the

jury’s

verdict.
Barnes’

evidence

of

improper

contact

is

that

Jordan,

evidently offended by a defense attorney’s closing argument that
“quot[ed]
discuss

scripture

the

lawyer’s

out

of

context,”

argument. 9

(Doc.

called
12-6.)

her

pastor

Pastor

to

Lomax

9

The closing argument in question appears to be that of William
Causey, an attorney for defendant Franklin Chambers, which reads, in
part, as follows:
If you’re a true believer [in Jesus Christ] 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.
(Tr., Final Arguments at 401.)

14

directed her to “another [B]ibilical passage which contradicted
the

passage

following

relied

day,

upon

Jordan

by

“read

the
the

defense

attorney,”

passage

Reverend Lomax to all of the jurors.”

suggested
(Id.)

and

to

her

the
by

Jordan cannot

recall the passage she read, but in general, it stated “that it
is the duty of Christians to abide by the laws of the state.”
(Doc. 12-12.)
The North Carolina Supreme Court concluded that the trial
court

was

presented

only

with

“the

mere

unsubstantiated

allegation that a juror called a minister to ask a question
about the death penalty” and that “[n]othing in this assertion
involved

‘extraneous

information’

.

.

fairness or impartiality of the juror.”
228, 481 S.E.2d at 68.

.

or

dealt

with

the

Barnes, 345 N.C. at

The MAR court found that Barnes’ new

evidence “add[ed] nothing” apparently because it was silent as
to any communication Jordan had with her pastor. 10

(MAR Order at

13.)

10

The only affidavit signed and notarized by an actual juror makes no
mention of Jordan’s conversation with her pastor.
(Doc. 12-14.)
Similarly, a summary of an interview that took place in 1995 between
Jordan and two individuals working on Barnes’ behalf, which Jordan
apparently acknowledged and signed in June 2000, indicates that
although Jordan brought a Bible into the jury room, she read a passage
that she knew from church. (Doc. 12-6.) The summary makes no mention
of a conversation with her pastor. (Id.) At least one juror, Wanda
Allen, recalls that one of the jurors -- she apparently doesn’t recall
who -- mentioned a conversation with a pastor.
(Doc. 12-19.)
However, Allen’s statement does not indicate which juror made the
statement about the pastor, when the statement was made, or what

15

Jordan’s
contact

with

conversation

contact
a
can

with

third

her

party.

fairly

be

pastor
The

said

was

question
to

unquestionably
is

“reasonably

a

whether

the

draw

into

question the integrity of the verdict,” Stockton, 852 F.2d at
743,

or

whether

the

Basham, 561 F.3d at 319.

communication

was

merely

“innocuous,”

In determining whether a third-party’s

contact with a juror was more than innocuous, the Supreme Court
has identified five factors that it “deemed important” to the
decision.
any

See Cheek, 94 F.3d at 141.

private

communication;

(2)

any

Those “factors” are: “(1)
private

contact;

(3)

any

tampering; (4) directly or indirectly with a juror during trial;
(5) about the matter before the jury.”

Id. (citing Remmer, 347

U.S. at 229).
Here, Barnes has demonstrated that, by virtue of Jordan’s
telephone conversation with Pastor Lomax the night before the
jury began deliberating in the sentencing phase, a third party
information, if any, was relayed to the jury about the conversation.
(Id.)
Pastor Lomax, for his part, does not recall any conversation
with Jordan, although he stated that it was possible that he talked to
her about the death penalty while she was a juror.
(Doc. 12-4.)
Thus, the only information about the conversation comes from an
affidavit by Daniel Williams, one of Barnes’ private investigators,
which recounts a June 1, 2000 conversation that he had with Jordan.
According to Williams, Jordan told him that she believed one of the
lawyers had quoted scripture out of context during a closing argument
and, in response, that she called Lomax to “discuss[] the lawyer’s
argument.”
(Id.)
Williams states that Jordan told him that “Lomax
told Ms. Jordan about another biblical passage which contradicted the
passage relied upon by the defense attorney.” (Id.) Jordan then read
the passage to the other jurors.
(Id.)
Neither she nor the other
jurors can remember the passage.

16

engaged in a private communication directly with a juror during
the trial.

However, while the contact related to the penalty

phase of the case –- a matter surely before the jury -- it is
not clear that Barnes has demonstrated that the substance of the
communication itself was “about the matter before the jury.”
See Cheek, 94 F.3d at 141.

Barnes’ evidence indicates that

during a closing argument one of his co-defendant’s attorneys
“quoted

a

scriptural

passage

which

suggested

that

if

jurors

returned a death sentence, they, the jurors[,] would one day
face judgment for their actions.”
concern

for

possible

(Doc. 12-4.)

spiritual

condemnation

It was out of
that

Jordan

contacted her pastor and that he directed her to a (now unknown)
“biblical passage which contradicted the passage relied upon by
the attorney” (id.) suggesting that individuals have a duty to
follow the laws of the State (id.).
Barnes’ evidence does not suggest that the pastor advised
her

about

how

to

make

a

decision

concerning

whether

the

defendants’ crimes warranted death, cf. Hernandez v. Martel, 824
F. Supp. 2d 1025, 1124 (C.D. Cal. 2011) (granting habeas relief
where petitioner’s evidence demonstrated a juror’s priest told
her

“that

the

‘only’

thing

or

the

‘main’

thing

she

should

consider [when deciding whether to impose the death penalty] was
the petitioner’s potential for rehabilitation”), or urged her to
impose

a

death

sentence,

cf.
17

Stockton,

852

F.2d

at

745

(concluding that a man’s remark to a group of jurors that they
should “fry” the defendant “posed a potential for prejudice that
was too serious to ignore”).

Instead, he directed her 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. 11

In

addition, the passage in question, as characterized by Barnes,
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, cf. Robinson v. Polk, 438 F.3d 350, 363 (4th Cir.
2006)

(explaining

that

the

Bible

“invites

the

listener

to

examine his or her own conscience from within”), 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,

N.C.

Gen.

Stat.

§ 15A-2000(b)(3)

(permitting the jury to recommend “whether the defendant should
be sentenced to death or to imprisonment in the State’s prison
for life”).

Nothing in Barnes’ evidence indicates that Pastor

Lomax shared his personal -- or Biblical -- view on the death

11

Barnes’ petition contends that “Jordan acknowledged her improper
communication with her pastor . . . w[as] directly related to
resolving the ultimate issue of whether the jury should impose a
sentence of death on petitioner.”
(Doc. 12 at 18.)
Barnes’
characterization of Jordan’s statements takes them too far.
Jordan
simply admits that she spoke to her pastor about whether jurors who
recommend a death sentence will face God’s condemnation. (Doc. 12-4.)

18

penalty, advised Jordan about how to make her decision, or even
knew in what trial Jordan was serving.
not

demonstrate

that

Pastor

Lomax’s

Consequently, Barnes did
conversation

with

Jordan

Carolina

courts

reasonably questioned the integrity of the verdict.
Finally,

Barnes

contends

that

the

North

erred by not granting him an evidentiary hearing on his claim.
The only case Barnes cites for his proposition, however, does
not mandate an evidentiary hearing.
U.S.

209,

217

misconduct]
added)).

(1982)

may

See Smith v. Phillips, 455

(“[D]eterminations

properly

be

made

at

a

[of

alleged

hearing.”

juror

(emphasis

Further, both North Carolina courts accepted, and this

court accepts, Barnes’ claims as true when they assessed whether
he

had

raised

a

constitutional

determined that he had not.
“state-court

record

claim

warranting

relief

and

In such circumstances, when the

‘precludes

habeas

relief’

under

the

limitations of § 2254(d), a district court is ‘not required to
hold an evidentiary hearing.’”

Cullen v. Pinholster, 131 S. Ct.

1388, 1399 (2011) (quoting Schriro v. Landrigan, 550 U.S. 465,
474 (2007)).

And lastly, even if this court were to hold an

evidentiary hearing, Supreme Court precedent dictates that “[i]f
a claim has been adjudicated on the merits by a state court, a
federal

habeas

petitioner

must

overcome

the

limitation

of

§ 2254(d)(1) on the record that was before the state court” --

19

not after the benefit of an evidentiary hearing.

Id. at 1400-

01.
The North Carolina courts’ decision to deny Barnes relief
on this claim based on the record before it was neither contrary
to

nor

an

unreasonable

federal law.

application

of

clearly

established

Barnes has failed to show that juror Jordan’s

contact with Pastor Lomax had a substantial and injurious effect
or influence on the jury’s determination of the verdict in this
case.

Barnes’

objections

to

the

Magistrate

Judge’s

Recommendation are therefore overruled, and his claim for relief
on this ground will be denied.
2.

Presence of the Bible in the Jury Room

Barnes also alleges that the jury deliberation process was
tainted when Jordan brought her Bible into the jury room and
read an unidentified passage to other jurors while the jury was
beginning to discuss the imposition of a death sentence as to
Barnes

and

his

co-defendants.

This

argument

is

similarly

without merit.
The

Magistrate

Judge

thoroughly

discussed

the

law

applicable to juror misconduct and extraneous influence claims
in his Recommendation, so a detailed recitation is not required
here.
prohibits

Suffice
“any

it

to

private

say

that

while

communication,

the

Sixth

contact,

or

Amendment
tampering

directly or indirectly, with a juror during the trial about a
20

matter pending before the jury,” Remmer, 347 U.S. at

229, it

does “not require judicial consideration of . . . allegations
regarding

influences

internal

to

the

[jury’s]

deliberation

process,” Robinson, 438 F.3d at 363.
In

Robinson,

a

habeas

petitioner

alleged

that

a

juror

improperly gained access to a Bible and read a Levitical (or
similar)

“eye

process.
court’s

for

an

eye”

Id. at 358.
decision

passage

during

the

deliberation

The Fourth Circuit held that the state

denying

relief

was

not

an

unreasonable

application of clearly established Supreme Court law because,
among

other

situation

things,

where

a

“reading

juror

the

quotes

Bible

the

is

Bible

analogous
from

to

memory,

which

assuredly would not be considered an improper influence.”
at 364.

the

Id.

According to the Robinson court, “the physical presence

and reading of the Bible in the jury room [did not] require[]
the MAR court to arrive at a different conclusion under clearly
established Supreme Court case law.”

Id.

Here, Barnes’ affidavits suggest that Jordan read from a
Bible in the jury room during sentencing deliberations.

Barnes’

affidavits

but

do

not

specify

which

passage

Jordan

read,

in

general terms, it appears to have been the same verse indicating
that individuals have a duty to follow the laws of the state
discussed previously.

Even taking these allegations as true,

this is not the type of evidence entitling Barnes to habeas
21

relief.

See id. at 364; Lenz v. Washington, 444 F.3d 295, 312

(4th Cir. 2006).
Barnes has failed to demonstrate that the North Carolina
court’s decision to deny his claim was either contrary to, or an
unreasonable

application

of,

clearly

established

federal

law.

It will, accordingly, be denied. 12
C.

Ineffective Assistance of Counsel Claim

Barnes’ next argument is that his Sixth Amendment right to
effective

assistance

of

counsel

was

violated

when

his

trial

counsel failed to investigate and present mitigating evidence at
his

sentencing.

North

Carolina

established

Specifically,
MAR

federal

court
law

Petitioner
unreasonably

when

it

contends
applied

determined

there

that

the

clearly
was

no

ineffective assistance of counsel despite the fact that the jury
never heard about Petitioner’s good conduct in prison or certain

12

Barnes’ suggestion of subsequently decided authority, citing United
States v. Lawson, 677 F.3d 629 (4th Cir. 2012), does not change this
result.
Lawson involved a juror’s use of the online encyclopedia
Wikipedia to resolve the meaning of a disputed term during the
deliberation process and reaffirmed the Fourth Circuit’s position that
on direct review “[t]he burden shifts to the [government] to prove
that there exists no reasonable possibility that the jury’s verdict
was influenced by an improper communication” only after the defendant
establishes that “there was an extrajudicial communication that was
more than innocuous.”
Id. at 642 (internal quotations and citation
removed).
Lawson distinguished habeas cases, such as the present
case, in which the presumption is inapplicable. Id. at 644. Because
Barnes was unable to establish that Jordan’s communication with her
pastor and her bringing the Bible into the jury room was more than an
innocuous communication, Lawson does not suggest that the North
Carolina courts’ decisions were contrary to or an unreasonable
application of established federal law.

22

details

about

his

dysfunctional

childhood.

Petitioner

also

argues that the Magistrate Judge’s Recommendation denying his
claim improperly ignored recent Supreme Court authority stating
that

counsel’s

evidence

of

limited

a

investigation

client’s

background

into

readily

constitutes

assistance of counsel under the Sixth Amendment.

available
ineffective

(Doc. 26 at

13–14 (citing Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v.
Smith, 539 U.S. 510 (2003)).)
As

noted

by

the

Magistrate

Judge,

the

standard

for

assessing an ineffective assistance of counsel claim is wellsettled.

A

performance

petitioner

and

(2)

must

that

show

such

(1)

deficient

counsel’s

deficient

performance

was

so

serious that it denied the petitioner a fair trial whose result
was

reliable.

(1984).

Strickland

v.

Washington,

466

U.S.

668,

Deficient performance is established when “counsel’s

representation

fell

below

an

objective

standard

reasonableness” based on prevailing professional norms.
687–88.

687

“Counsel’s

conduct

is

generally

presumed

to

of

Id. at
be

a

reasonable strategic choice, but is not reasonable to the extent
that the choice of strategy does not rely upon either a full
investigation

of

the

law

and

facts

or

an

abbreviated

investigation of the law and facts limited only by reasonable
professional judgments.”

Buckner v. Polk, 453 F.3d 195, 201

(4th Cir. 2006) (internal quotation and citation omitted).
23

In a

capital case, counsel will be found to have acted reasonably
when an effort is made to “discover all reasonably available
mitigating

evidence.”

removed).

Wiggins,

Prejudice

exists

539

U.S.

where

“there

at

546

(emphasis

a

reasonable

is

probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
535.

Id. at

The burden for establishing prejudice is high, and “it is

insufficient

to

show

only

that

errors

had

some

conceivable

effect on the outcome of the proceeding, because virtually every
act or omission of counsel would meet that test.”

Williams, 529

U.S. at 394.
In a capital case, a demonstration of prejudice requires
that a petitioner show a “reasonable probability” that, in the
absence

of

determined

counsel’s
that

errors,

“the

the

balance

sentencing

of

aggravating

circumstances did not warrant death.”
695.

would

and

have

mitigating

Strickland, 466 U.S. at

This burden is met when “at least one juror would have

struck

a

different

balance”

when

mitigating and aggravating evidence.
Where

body

the

applied

issue

is

whether

Strickland

the

standards

confronted

all

the

Wiggins, 539 U.S. at 534.

state
to

with

a

court

has

unreasonably

claim

of

ineffective

assistance of counsel, as it is here, “‘double deference’ is
required

–

deference

to

the

state

court

deference to trial counsel’s performance.”
24

judgment

granting

Burr v. Lassiter,

Case No. 12-4, 2013 WL 871190, (4th Cir. Mar. 11, 2013).

As the

Supreme Court cautioned, “the question is not whether counsel’s
actions were reasonable.
reasonable

argument

The question is whether there is any

that

deferential standard.”

counsel

satisfied

Strickland’s

Harrington v. Richter, 131 S. Ct. 770,

788 (2011).
Petitioner
counsel.

In

argument

claims
his

five

separate

objections,

generically

to

failures

however,

cover

his

of

Petitioner

“positive

his

trial

states

adjustment

his
to

incarceration or many critical details [of] his dysfunctional
childhood.”

(Doc. 26 at 12.)

He then limits his argument to

his specific discussion of the contention that his trial counsel
was ineffective in failing to present evidence of Petitioner’s
good conduct during a prior incarceration. 13

This contention

will be addressed in detail.
At

the

state

MAR

hearing,

Petitioner

presented

records

showing that he successfully completed a welding program in May
1991

at

Cleveland

incarcerated.

Community

(Doc. 12-9.)

College

while

previously

He also completed 180 hours of pre-

employment training through Rowan-Cabarrus Community College in

13

Petitioner’s other alleged grounds are (1) failure to interview or
call as a witness Della Barnes, Petitioner’s mother; (2) failure to
properly prepare the testimony of witness Michael Barnes, Petitioner’s
brother; (3) failure to prepare the testimony of witness Willie Mae
Barnes, Petitioner’s grandmother; and (4) failure to call Anthony
Barnes, Petitioner’s younger brother.

25

August 1991.

(Id.)

Further, prison documents show that he

received merit points from the Cleveland Correctional Center for
working overtime.

(Id.)

None of these records was presented by

Petitioner’s trial counsel at sentencing, and Barnes contends
that had such mitigating information been presented, it would
have led at least one juror to return a sentence less than
death.
Pursuant
South

to

Carolina,

the

Supreme

evidence

of

Court’s
a

decision

defendant’s

in

Skipper

disposition

v.

toward

making a peaceful adjustment to prison life is “by its nature
relevant
(1986).

to

the

sentencing

determination.”

476

U.S.

1,

7

As such, evidence of Barnes’ prior course work and good

behavior in

prison

sentencing hearing.
would

have

been

would

likely

See id.

have

been

admissible

at

his

However, even if this evidence

admissible,

Skipper’s

holding,

contrary

to

Petitioner’s argument, does not require that it be presented.
Skipper

only

instructs

that

“potentially mitigating.”

such

evidence

be

considered

Id. at 5 (emphasis added).

Thus,

counsel was under no obligation to present all possible evidence
regarding prior good behavior in prison.

Id. at 7 n.2 (“We do

not hold that all facets of the defendant's ability to adjust to
prison

life

must

be

treated

mitigating.”).

26

as

relevant

and

potentially

Additionally,

there

is

no

support

for

finding

that

counsel’s failure to present the specific evidence at issue here
was deficient performance under Strickland.

First, Petitioner’s

trial counsel did present evidence at sentencing relating to
Petitioner’s ability to successfully adjust to life in prison.
During sentencing, Larry Murphy, a food services supervisor at
Central Prison, testified about Petitioner’s job as a head cook
in the prison kitchen during his pre-trial detention.
Vol. VII at 464).

(Tr.,

Murphy told the jury that Petitioner had

started as a general laborer but had worked his way up to head
cook, a position requiring him to supervise three or four other
people.

(Id.)

Murphy further stated that Petitioner “worked

great, had no problems at all” and had a good attitude.
464-65.)

(Id. at

Any evidence regarding good behavior or education from

a previous incarceration would have thus been cumulative, as
Murphy’s

testimony

established

Petitioner’s

productively function in the prison environment.
Quarterman,
counsel’s

515

F.3d

failure

to

392,

404

(5th

introduce

Cir.

records

2008)

showing

ability

to

See Smith v.
(holding
good

that

behavior

during prior incarcerations was not deficient performance when
counsel called a correctional officer who testified about the
petitioner’s

good

behavior

while

jail).

27

incarcerated

in

the

local

Furthermore, evidence from a previous incarceration could
have been damaging, not mitigating, if presented to the jury.
See

id.

at

404

(noting

that

“good

behavior

during

previous

imprisonment constitutes evidence capable of both mitigating and
aggravating [] punishment” as it can show a propensity not to
abide by the laws of society).

At the MAR hearing, Petitioner’s

trial counsel indicated that it would be beneficial to downplay
the fact that Barnes had previously been incarcerated.

(MAR

Hearing Transcript (“MAR H’rg Tr.”) at 76.)

Thus, choosing not

to

or

present

evidence

regarding

educational

merit

credits

earned during a prior incarceration would have been consistent
with

a

reasoned

strategy

to

minimize

Petitioner’s

criminal

history in front of the jury.
In addition to there being no showing that the state court
unreasonably

applied

Strickland’s

standards,

there

is

no

evidence of prejudice because Barnes cannot show a “reasonable
probability” that the results of his sentencing hearing would
have been different if counsel did present his prison records.
Counsel did in fact present evidence of Petitioner’s ability to
successfully conform to institutional settings.
at 464–465 (testimony of Larry Murphy).)

(Tr., Vol. VII

As such, there is no

reasonable probability that additional evidence of good behavior
or coursework would have led even one juror to re-weigh the
aggravating and mitigating factors.
28

Because this evidence was

“double-edged”

(i.e.,

both

potentially

aggravating

and

mitigating), it cannot be said to have likely had a significant
mitigating
Cockrell,

effect
311

had

F.3d

counsel

349,

360

presented
(5th

Cir.

it.
2002)

See

Ladd

(stating

v.

that

“double-edged” evidence (evidence from prior incarcerations) is
unlikely to have a significantly mitigating effect).

Therefore,

the court finds that Barnes has failed to demonstrate that the
state court’s decision to deny his ineffective assistance of
counsel

claim

unreasonable

on

this

basis

application

of,

was

either

clearly

contrary

established

to,

or

federal

an

law.

The claim will, accordingly, be denied.
It is not clear that Barnes has properly objected to any
other ground for his claim of ineffective assistance of counsel
relating

to

the

presentation

of

mitigating

evidence

at

sentencing in order to invoke this court’s de novo review; he
certainly has not specifically argued any of the evidence.

See

Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (“Courts
have . . . held de novo review to be unnecessary in . . .
situations when a party makes general and conclusory objections
that

do

not

direct

the

court

to

a

specific

error

in

the

magistrate's proposed findings and recommendation.”).

Rather,

he

present

complains

generally

about

counsels’

evidence of his “dysfunctional childhood.”

failure

to

(Doc. 26 at 12.)

Because this is a death penalty case and to the extent it could
29

be contended that Barnes has properly raised other objections
based on ineffective assistance of his counsel, the court will
nevertheless address his remaining claims de novo.
Barnes argues that his counsel was ineffective for failing
to interview or call his mother, Della Barnes, to testify at
sentencing about his dysfunctional childhood.

He contends that

the state court failed to recognize that counsel’s failure to
call Della Barnes resulted from an incomplete investigation, not
an informed tactical decision.
As

previously

noted,

Strickland

requires

that

counsel’s

performance meet an objective reasonableness standard based on
prevailing professional norms.
a

sentencing

investigation

hearing,
of

the

466 U.S. at 688.

counsel

defendant’s

must

“conduct

background”

potentially relevant mitigating evidence.
396.

With regard to

to

a

thorough

identify

any

Williams, 529 U.S. at

This does not mean that the entire universe of potentially

mitigating evidence must be investigated and presented; instead,
the

court

need

only

consider

whether

the

investigation

supporting counsel’s decision not to introduce specific evidence
was

reasonable.

Wiggins,

539

U.S.

at

523;

see

also

ABA

Guidelines for Appointment and Performance of Counsel in Death
Penalty

Cases,

§

11.8.6

(1989)

(stating

that

counsel

should

present “all reasonably available evidence in mitigation unless
there are strong strategic reasons to forego some portion of
30

such evidence”).

To determine if counsel’s investigation was

reasonable, the court will conduct an objective review of their
performance, which includes a “context-dependent” consideration
of the conduct from counsel’s perspective at the time.

Wiggins,

539 U.S. at 523.
In this case, the state court did not unreasonably apply
the standards of Strickland, Wiggins, and Williams when it found
that counsel conducted a reasonable investigation and decided
not to call Della Barnes as a witness at sentencing.
there

is

ample

evidence

that

trial

counsel

First,

investigated

and

considered, but ultimately rejected, the use of Della Barnes’
testimony.

At the MAR hearing, the State introduced the phone

logs of William Fritts (“Fritts”), one of Petitioner’s trial
counsel.

These logs showed that Fritts contacted Della Barnes

twice — first on January 4, 1993, and again a few months later
on March 24, 1993.

(MAR H’rg Tr., State’s Exs. 1 & 2.)

The

first of these phone calls lasted for 45 minutes, and the second
lasted for 15 minutes, resulting in a total time of one hour.
(Id.)

Michael

Lea,

Fritts’

co-counsel,

also

testified

that

Fritts had contacted Della Barnes and that it had been said she
would not make a good witness.

(Id. at 88).

This evidence

indicates that trial counsel investigated, yet rejected, the use
of Della Barnes’ testimony out of concern that she would have
made a poor witness.
31

Additionally,
cumulative

and

Della

not

Barnes’

testimony

substantially

different

would
from

have

that

of

other witnesses called by Petitioner’s trial counsel.

been
the

At the

MAR hearing, Della Barnes testified regarding the circumstances
of

Petitioner’s

manslaughter

childhood

when

he

was

and

conviction

child.

a

her

(Id.

for

at

involuntary

10–27.)

This

testimony did not differ materially from the evidence that was
available

to

the

jury

at

sentencing.

At

sentencing,

Petitioner’s counsel presented no fewer than five witnesses who
testified

about

Petitioner’s

dysfunctional

childhood.

Cf.

Wiggins, 539 U.S. 510 (finding ineffective assistance of counsel
when trial counsel presented no evidence at all of petitioner’s
dysfunctional

background).

Dr.

William

Scarboro,

a

licensed

psychologist, testified that Barnes was neglected as a child and
did not have a positive role model while growing up.
VII, at 503–24.)

(Tr., Vol.

Dr. Scarboro also stated that Petitioner had a

history of behavior problems that seemed to present at the time
that Petitioner’s mother went to prison.

(Id.)

The jury also

heard from Vanessa Davis, Petitioner’s former girlfriend (id. at
467–88), Ronnie Miller, Petitioner’s cousin (id. at 488–502),
Willie Mae Barnes, Petitioner’s grandmother (id. at 526–532),
and Michael Barnes, Petitioner’s older brother (id. at 532–546).
All four of these witnesses testified that Petitioner’s father
was absent from his life, further highlighting Petitioner’s lack
32

of a positive role model.
Barnes,

and

Michael

mother

served

time

In addition, Dr. Scarboro, Willie Mae

Barnes
in

all

prison

Petitioner’s childhood.

testified

and

was

that

absent

Petitioner’s

during

part

of

Dr. Scarboro and Michael Barnes both

specifically linked Della Barnes’ incarceration to the emergence
of Petitioner’s behavior and attitude problems.
In sum, Della Barnes’ potential testimony would not have
added to the picture of a dysfunctional childhood painted by the
numerous other witnesses presented by trial counsel.
her

testimony

counsel’s

could

well

mitigation

sympathetically

as

have

been

strategy
possible,

was

damaging.
to

portray

testimony

from

Further,

Because

trial

Petitioner
his

mother,

as
a

convicted felon who had served time in prison for manslaughter,
could

have

been

less

helpful

than

the

testimony

of

his

grandmother, a more sympathetic witness.
Contrary to Petitioner’s argument, the instant situation is
unlike that in Rompilla v. Beard.

In Rompilla, trial counsel

completely failed to examine the petitioner’s prior conviction
file even when they knew the prosecutor intended to use it as
aggravating evidence.
the

file,

they

545 U.S. at 383–85.

would

have

uncovered

Had they examined

evidence

about

the

petitioner’s troubled childhood and mental health, subjects not
addressed at sentencing.

Id. at 378, 391.

Such a blatant lack

of investigation is not the case here; instead, the record shows
33

that trial counsel investigated and rejected the use of Della
Barnes’

testimony.

raised

in

Also,

Barnes’

unlike

in

Rompilla,

post-conviction

the

evidence

proceedings

is

substantially different from that raised at sentencing.
the

sentencing

transcripts

testified

about

childhood,

thus

the

reveal

details

providing

of

the

Barnes’

testimony

was

four

other

Petitioner’s

jury

about Petitioner’s upbringing.
Della

that

with

not

Indeed,
witnesses

dysfunctional

adequate

information

Therefore, because the use of

reasonably

investigated

by

trial

counsel and would have been cumulative even if presented, the
court

cannot

clearly

say

that

established

the

state

federal

law

court
when

unreasonably
it

rejected

applied
Barnes’

ineffective assistance of counsel claim.
Petitioner

also

contends

that

his

trial

counsel

was

ineffective for failing to properly prepare witnesses Willie Mae
Barnes

and

Michael

Barnes

and

for

failing

to

call

Barnes, Petitioner’s younger brother, as a witness.

Anthony

However, at

the state post-conviction evidentiary hearing, no evidence was
presented by Petitioner on these claims.

The State contends

that Petitioner’s failure to present evidence on these matters
precludes this court from considering these issues.
1–2.)

However, because the MAR court reached these issues on

the merits, this court will as well.
501

(Doc. 9 at

U.S.

797,

801

(1991)

(“If
34

the

See Ylst v. Nunnemaker,
last

state

court

to

be

presented with a particular federal claim reaches the merits, it
removes any bar to federal-court review that might otherwise
have been available.”).
Regarding the testimony of Michael Barnes, the MAR court
found that the witness was “effectively examined regarding some
facts

which

had

mitigating

value

defendant’s family background.”

to

the

jury

concerning

(MAR Order at 11.)

the

However,

Petitioner contends that counsel was ineffective at preparing
Michael Barnes as a witness and “inexplicably failed” to solicit
from him the fact that, as a child, Petitioner had helped care
for his mentally retarded brother, James.

(Doc. 12 at 26.)

The court has reviewed the transcript and cannot say that
the MAR court’s determination is unreasonable.
testified

at

the

MAR

hearing

that

their

Trial counsel

primary

mitigation

strategy was to cast light on Petitioner’s troubled childhood to
explain and contextualize his conduct as an adult.
questioning
examination

of

Michael

revealed

Barnes
that

followed

Petitioner’s

this

Counsel’s

strategy.

childhood

The

involved

violence, alcohol abuse, and the absence of his parents.

(Tr.,

Vol. VII at 536 (testimony of Michael Barnes that Petitioner’s
mother was incarcerated for three years when Petitioner was a
child));

(id.

at

538

(testimony

of

Michael

Barnes

that

Petitioner began drinking around 11 or 12 years of age)); (id.
at 540 (testimony of Michael Barnes that Petitioner’s father was
35

absent and his mother’s boyfriend was physically abusive).)

The

fact that one additional circumstance, Petitioner’s care of his
mentally retarded brother, was not developed is not enough to
conclude that the MAR court unreasonably applied Strickland.
Regarding the testimony of Willie Mae Barnes, Petitioner
argues

that

counsel

failed

to

solicit

information

that

her

daughter, Della Barnes (Petitioner’s mother), did not provide
Willie

Mae

and

Della’s

financial support.

children

with

(Doc. 12 at 26.)

sufficient

food

or

Petitioner argues that

this testimony would have helped the jury to understand better
Petitioner’s childhood environment and thus provided important
mitigating evidence.

(Id.)

A review of the transcript, as noted by the MAR court,
reveals there was no need to ask Willie Mae Barnes additional
questions that would have cast her daughter in a bad light.
Other witnesses testified that Petitioner’s mother was in jail,
not present during part of his childhood, and did not serve as a
positive role model for Petitioner.

Any additional evidence

regarding the failure of Petitioner’s mother would have been
merely cumulative.

Further, the transcript from the evidentiary

hearing shows that trial counsel questioned Willie Mae Barnes
effectively

and

used

her

testimony

to

about Petitioner’s troubled childhood.

establish

information

(Tr., Vol. VII at 529

(testimony of Willie Mae Barnes that Petitioner and his brothers
36

were living by themselves after Della Barnes went to prison));
(id. at 531 (testimony of Willie Mae Barnes that Petitioner’s
father was not present during his childhood).)

Again, counsel’s

failure to raise one additional circumstance, which would have
been cumulative in light of the other presented evidence, does
not

rise

to

the

level

of

objectively

deficient

performance

necessary under Strickland.
Finally,
unreasonably
rejected

Petitioner
applied

Petitioner’s

contends

clearly

established

claim

that

failing to call Anthony Barnes.
failed

to

present

that

mitigating

the

state

federal

counsel

was

law

court
when

ineffective

it
for

Petitioner argues that counsel
evidence

regarding

Petitioner’s

willingness to do hard work and contends that Anthony Barnes
would have testified that Petitioner showed a propensity to work
hard

by

doing

household

chores

and

helping

his

mother

move.

However, no evidence was presented on this issue at the MAR
evidentiary
Petitioner

hearing.
“failed

As
to

such,

make

even

the
a

MAR

court

threshold

ineffectiveness or prejudice as to this allegation.”

held
showing

that
of

(MAR Order

at 11.)
This court agrees.

When no evidence is presented on a

claim to the MAR court, as was the case here, the federal habeas
court cannot go beyond the record available to the state court.
See Underwood v. Harkleroad, 411 F. App’x 569, 578 (4th Cir.
37

2011) (stating that the court’s habeas review is narrow when no
evidence on a claim was presented to the MAR court). 14
like

the

MAR

court,

this

court

cannot

find

either

Thus,

deficient

performance or prejudice for counsel’s failure to call Anthony
Barnes. 15
In sum, Petitioner has failed to demonstrate that the
rejection of his claim of ineffective assistance of counsel by
the state courts was contrary to or an unreasonable application
of clearly established federal law, and the claim is therefore
denied.
D.

Brady Claims

Petitioner’s final objections relate to his claim that the
prosecutor
exculpatory
statements

failed

to

disclose

information
of

witnesses

exculpatory

identified
Antonio

by

information.

Petitioner

Mason,

Sheila

The

includes

the

McClain,

and

14

Unpublished decisions of the Fourth Circuit have no precedential
value but are cited for the weight they generate by the persuasiveness
of their reasoning.
See Collins v. Pond Creek Mining Co., 468 F.3d
213, 219 (4th Cir. 2006).
15

Even if the court accepts Petitioner’s allegations as true, it
still would not find trial counsel ineffective for failure to call
Anthony Barnes. Petitioner claims that Anthony Barnes’ testimony was
necessary because “[n]o mitigating circumstances relating to his
ability to work hard was presented to his sentencing jury.” (Doc. 12
at 27.)
A review of the sentencing transcript reveals this is not
true.
Both Vanessa Davis’ and Larry Murphy’s testimony spoke to
Petitioner’s willingness to work hard.
(Tr., Vol. VII at 467–471)
(testimony of Vanessa Davis that Petitioner was “an excellent
worker”); (id. at 465) (testimony of Larry Murphy that Petitioner was
a “good worker”). As such, Anthony Barnes’ testimony would have been
cumulative, and no prejudice against Petitioner resulted from trial
counsel’s failure to call him.

38

Teresa Scott, and a police log from the night the Tutterows were
murdered.

Petitioner alleges that this material was not timely

disclosed to his trial counsel pursuant to Brady v. Maryland,
373

U.S.

83

(1963).

Specifically,

Petitioner

contends

that

these Brady violations deprived him of the right to confront the
witnesses against him, to a reliable guilt phase and sentencing
proceeding,

and

to

due

process

in

violation

of

the

Sixth,

Eighth, and Fourteenth Amendments to the Constitution.
As

noted

“suppression
accused

.

by

by

.

.

the

the

Magistrate

prosecution

violates

due

of

Judge,

Brady

evidence

process

where

held

favorable
the

that
to

an

evidence

is

material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.”
prosecutor’s

duty

to

disclose

such

Id. at 87.

exculpatory

evidence

The
is

applicable even in the absence of a request for the information
by the accused.
(1976).

Brady

investigators,
prosecutor.

United States v. Agurs, 427 U.S. 97, 110-11

even

encompasses
if

such

evidence

information

known
is

not

to
known

police
to

the

Kyles v. Whitley, 514 U.S. 419, 438 (1995).

To successfully show a Brady violation, a petitioner must
establish three things.

First, “[t]he evidence at issue must be

favorable to the accused, either because it is exculpatory, or
because it is impeaching.”
281–82 (1999).

Strickler v. Greene, 527 U.S. 263,

Second, the evidence must have been willfully or
39

inadvertently suppressed by the state (i.e., the state had the
materials and failed to disclose them).

Id. at 282; see also

United States v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001).
Finally,

prejudice

against

a

petitioner

must

(i.e., the evidence at issue was “material”).

have

resulted

Strickler, 527

U.S. at 282; see also Stokes, 261 F.3d at 502.

Evidence is

considered “material” and thus subject to Brady disclosure “if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would
have been different.”

United States v. Bagley, 473 U.S. 667,

682 (1985).
In this case, the court finds that the state court did not
act

contrary

to

or

unreasonably

apply

clearly

established

federal law when it determined that the evidence identified by
Petitioner did not meet these standards.
1.
The

Statement of Antonio Mason 16

first

witness

statement

identified

by

Petitioner

underlying an alleged Brady violation is that of Antonio Mason,
who was interviewed by SBI Agent D.A. Gale on August 19, 1993,
and recounted events he witnessed on the day of the Tutterow
murders.

In his statement, Antonio Mason stated that on the day

16

Petitioner addresses the Magistrate Judge’s conclusions regarding
Antonio Mason’s statement in two separate sections of his objections.
(Doc. 26 at 18-21, 28-32.)
Because Petitioner’s arguments are
related, they will be addressed together.

40

of the murders all three defendants (Petitioner, Robert Blakney
(“Blakney”), and Frank Chambers (“Chambers”)) were together at
Sharon Mason’s house, along with Antonio Mason, Sharon Mason,
and Valerie Mason.

(Doc. 12-12 at 3–4.)

While there, the three

defendants went into the back bedroom with Valerie Mason.
at 4.)

(Id.

According to Antonio Mason’s statement, when Valerie

Mason came out, “[s]he said Bobby Blakeney said he had killed
somebody.”

(Id.)

Antonio Mason also recounted that the next

day Blakney told him that “Chambers had shot the people, that
he, himself, had not shot them.”

(Id. at 5.)

The Magistrate Judge’s Recommendation rejected Petitioner’s
claim that the above referenced statements made by Antonio Mason
were appropriate bases for a Brady violation.

Specifically, the

Magistrate Judge found that the MAR court did not unreasonably
apply clearly established federal law when it determined that
(1) Petitioner had failed to show that Mason’s statement was not
disclosed to Petitioner’s trial counsel, and (2) that Petitioner
had failed to show that the portions of the statement identified
by him constituted Brady material.

Because the court finds that

the state court did not unreasonably apply clearly established
federal law in determining that the identified statements were
not

Brady

whether

material,

the

the

statements

court
were

need

not

disclosed

41

to

reach

the

issue

Petitioner’s

of

trial

counsel. 17

17

As noted by the Magistrate Judge, Petitioner has the burden to show
that any alleged Brady material was not turned over to his trial
counsel. Strickler, 527 U.S. at 282. The Magistrate Judge found that
Petitioner failed to meet that burden as “Petitioner failed to show
the state court that the State suppressed Mason’s statement, or that
the defense did not have access to it.” (Doc. 22 at 50.)
Trial counsel’s affidavit before the MAR court stated that they
“do not recall whether we received this document at the time of trial
. . . We are sure that if we did get a copy, we received the statement
during trial, and not before . . .” (Doc. 12-10.) During the crossexamination of Mason, Mr. Lea appeared confused regarding whether
Antonio Mason had given a statement to an SBI Agent.
The following
exchange took place:
Q: Mr. Mason, when did you talk to the police about this
situation, the day after it happened?
A: Yes, sir, something like that.
Q: You think it was the first time you talked to the police
about it?
A: Yes, sir.
Q: Did you talk to them more than one time about that?
A: Yes, sir.
Q: Did you talk to a different policeman that day?
A: Yes, sir.
Q: Did you talk to anybody who identified himself as an SBI
Agent?
A: I believe so.
. . .
Mr. Lea: Your Honor, at this time we would –- we have one
statement, but it doesn’t appear that’s all the statements
we might be entitled to.
(Tr., Vol. I at 259–60).
However, Antonio Mason’s statement was
clearly used by counsel for one of the co-defendants in his crossexamination of Antonio Mason, indicating it was produced by the State
and available during trial. (Tr., Vol. I at 267–92.) An element of
Antonio Mason’s statement to the SBI was also used by Mr. Fritts in
his cross-examination of Valerie Mason.
(Tr., Vol. II, at 35) (“Q:
And if your brother . . . said that Chambers had two guns in his
waistband, he would have been mistaken; is that correct? A: Well, I
can’t say he would have been mistaken . . .”).
A habeas petitioner challenging a state decision must show it was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court. 28 U.S.C. § 2254(d)(2). The
determination of a fact is presumed correct, and a petitioner must
rebut this presumption by clear and convincing evidence.
Id.
§ 2254(e)(1); Rice v. Collins, 546 U.S. 333, 338-39 (2006).

42

Petitioner

points

out

that

in

determining

that

Antonio

Mason’s statement was not Brady material, the Magistrate Judge
noted

that

the

identified

information

not

“significantly

(Doc. 22 at 50.)

exculpatory” as to Petitioner.

was

As Petitioner

correctly notes, this is not a standard recognized under Brady.
Instead, the evidence must only be favorable to the defendant
either

because

it

is

(1)

exculpatory

Strickler, 527 U.S. at 281–82.

or

(2)

impeaching.

But even if the material at

issue is exculpatory, there is no Brady violation unless there
exists a reasonable probability that the result at trial would
have been different had the evidence been disclosed.

Wood v.

Bartholomew, 516 U.S. 1, 5 (1995).
When examining a Brady claim through the lens of the AEDPA,
the question the court must answer is: “[w]as the MAR court's
holding . . . incorrect to a degree that [its] conclusion ‘was
Petitioner’s evidence before the MAR court focused on whether
trial counsel received Antonio Mason’s statement prior to trial,
rather than at trial.
(Doc. 26 at 18-19.)
The record appears to
support the conclusion that the MAR court’s determination (that
Petitioner failed to carry his burden to show that Antonio Mason’s
statement was not disclosed) was not unreasonable.
(See also
Amendments to Amended MAR at 18 (statement of Petitioner’s postconviction counsel that “[i]t is unclear whether all of these prior
exculpatory statements by Blakney were disclosed to defense counsel”
(emphasis added)).)
However, because the court determines that the
portions of Antonio Mason’s statement identified by Petitioner are not
exculpatory and, alternatively, do not raise a reasonable probability
that the result of the proceedings would have been different, the
court need not reach this issue.
See United States v. Jeffers, 570
F.3d 557, 573 (4th Cir. 2009) (not reaching whether or not statements
were disclosed because, regardless, they were not material under Brady
and would not have made any difference in the trial).

43

so

lacking

justification

and

understood

in

comprehended

possibility

for

that
in

fair-minded

[it]

was

existing

an

disagreement?’”

well

beyond

law

error

any

Richardson

v.

Branker, 668 F.3d 128, 149 (4th Cir. 2012) (quoting Harrington,
131 S. Ct. at 786-87).

Under this standard, the answer is no.

Upon examination of the record, it is clear that the MAR court
did

not

unreasonably
the

apply

Brady

identified

and

its

statements

progeny
were

when

not

it

determined

that

Brady

material.

First, Antonio Mason’s statement that Valerie Mason

said that Blakney had “killed somebody” is not exculpatory as to
Petitioner.
involvement
that

the

involved.

The
in

statement

the

trial

does

Tutterows’

evidence

not

remove

deaths,

indicated

Petitioner

especially

that

two

from

considering

shooters

were

Further, it is not beyond fair-minded disagreement to

say that a failure to disclose this statement does not undermine
confidence in the verdict considering that the statement only
“calls upon a weak inference from the absence of an affirmative
declaration.”

(MAR Order at 5.)

The same is true of Antonio

Mason’s statement that Robert Blakney said that Chambers had
“shot the people.”
Petitioner argues that even if neither portion of Antonio
Mason’s

statement

is

exculpatory,

taken

together

they

are

because they support the proposition that the two shooters were
Blakney and Chambers, and not Petitioner.
44

(Doc. 26 at 20-21.)

The court disagrees.

Antonio Mason’s statement that Blakney

said he had “killed somebody,” an admission of guilt by Blakney,
is contradicted by Antonio Mason’s statement that Blakney said
Chambers, not Blakney, had been the shooter.
5

(statement

of

Antonio

Mason

that

(See Doc. 12-12 at

Blakney

told

him

that

“Chambers had shot the people, that he, himself, had not shot
them”).)

Combined, these portions of Antonio Mason’s statement

do not exculpate Petitioner, because the evidence revealed there
were two shooters involved in the Tutterows’ murders and the
statements attributed to Blakney do not exclude Petitioner from
having been one of them.
Even if the court were to assume that the portions of the
statement,

when

Petitioner

cannot

combined,

have

demonstrate

some

that

exculpatory

there

is

a

effect,

reasonable

probability that he would not have been convicted and sentenced
to

death

had

the

statement

been

disclosed.

First,

Antonio

Mason’s statement that Valerie Mason said Blakney said he had
shot someone contains hearsay and therefore would not have been
admissible at trial even if it had been disclosed.
Workman,

692

F.3d

1133,

1142

(10th

Cir.

See Banks v.

2012)

(no

Brady

violation when evidence at issue contained two levels of hearsay
because it would not have been admissible at trial).

Further,

Valerie Mason was cross-examined as to the statements Robert
Blakney made during the incident, and she repeatedly claimed
45

that he never stated that he had killed someone.

(Tr., Vol. II

at 22 (“Q: He did not say he had killed anybody, did he?
Didn’t nobody say they killed nobody.”).)
examined

at

the

sentencing

phase

A: No.

Blakney, when cross-

of

trial, 18

the

also

consistently denied having spoken to Valerie Mason about the
killings.
appear

(Tr., Vol. VII at 161-63.)

that

discernible

Antonio
impact

Mason’s
on,

statement

As such, it does not

much

less

would

have

created

a

made

any

reasonable

probability of altering, either the guilt or punishment phase of
trial.
Finally,

with

regard

to

the

second

element

of

Antonio

Mason’s statement -- that Blakney said that Chambers had shot
the

Tutterows,

--

Blakney

testified

consistently

statement at the sentencing phase of the trial.

with

this

(Id. at 41

(“[Blakney] said, ‘what the **** are you shooting them for?’
And Mr. Chambers said, he said, ‘We had to.’”)); (id. at 43
(Blakney testifying that “I did not come nowhere near Mr. or
Mrs. Tutterow.”).)

Blakney was cross-examined on this point by

counsel for Petitioner and Chambers, and his credibility was
before the jury.

(See, e.g., id. at 155, 184-85.)

Thus, the

court cannot say that there would be a reasonable probability of
a different result had Antonio Mason’s statement been available
18

Neither Petitioner, Blakney, nor
guilt/innocence phase of the trial.

46

Chambers

testified

at

the

to Petitioner’s counsel (assuming it was not) or that the state
court unreasonably applied clearly established federal law in
determining that there was no Brady violation.
2.

Statement of Sheila McClain

Petitioner’s

next

argument

is

that

the

Magistrate

Judge

erroneously concluded that the state court did not unreasonably
apply clearly established federal law in determining that Sheila
McClain’s statement does not underlie a Brady violation.
to

trial,

Sheila

McClain,

the

sister

of

Prior

Petitioner’s

co-

defendant Blakney, gave a statement recounting what Blakney had
told her after the murders.

Blakney told Sheila that he asked

co-defendant Chambers why he had shot the victims, and Chambers
responded, “I’ve already been in jail one time; I’m not going
back.”
was

not

(Doc. 12-16.)
turned

over

Petitioner contends that this statement
to

his

trial

counsel

even

though

it

contained exculpatory information under Brady.
In assessing this claim, the MAR court found that since
McClain did not testify at trial, the State impliedly conceded
the possibility that her statement may not have been provided
since her statement was not deemed exculpatory or impeaching.
(MAR Order at 5.)

As such, the MAR court went on to determine

whether the statement was Brady material and found it was not
and that Petitioner had not proven prejudice.

47

The

court

agrees

with

the

Magistrate

Judge’s

conclusion

that Petitioner failed to show that he was prejudiced by the
State’s failure to turn over Sheila McClain’s statement.

At the

MAR hearing, the State introduced a letter sent to Petitioner’s
trial

counsel

trial.

from

the

prosecution

over

three

months

before

In that letter, the State advised Petitioner of the

following

statements

made

to

non-law

enforcement

officers:

“Defendant Blakney told both his mother and his sister that he
did

not

participate

in

the

shootings.

Blakney

stated

that

‘June’ [(the nickname for Chambers)] did the shooting and when
he asked why, ‘June’ said that he had already been in jail and
he was not going back.”
2.)

(State Court Record, Ex. 12, Defs’ Ex.

This information is the same as that contained in Sheila

McClain’s statement.

As such, because the same information was

in fact received in another form by Petitioner’s trial counsel,
there is no indication that the outcome of the proceeding would
have been different had counsel received the actual statement
given by Sheila McClain.

Thus, Petitioner has failed to show

prejudice, and the Magistrate Judge correctly concluded that the
state

court

did

not

unreasonably

apply

clearly

established

federal law.
3.
Petitioner

Statement of Teresa Scott
also

contends

that

the

prosecution

failed

to

turn over the statement of Teresa Scott in violation of Brady.
48

At

trial,

Teresa

Scott

testified

that

she

saw

all

three

Defendants -- Petitioner, Chambers, and Blakney -- together at
Cynthia Gwinn’s apartment on the night of the murders.
Vol. II at 220–22.)

(Tr.,

She further testified that she saw all

three defendants leave the apartment together between 9:00 and
9:30 p.m.

(Id. at 223.)

Following the murders, Teresa Scott was interviewed by two
law enforcement officers, Detective J.D. Barber and SBI Agent
Gale.

Petitioner contends that the reports of Detective Barber

and Agent Gale are materially different, and yet only Detective
Barber’s version was turned over to Petitioner’s trial counsel.
Specifically,

Detective

Barber’s

version

of

Teresa

Scott’s

statement reads as follows:
Ms. Scott stated that she was at Cynthia Gwinn’s
house last night on 10/29/92 and that she saw William
Leroy Barnes, Bobby Blakeney [sic] and Frank Junior
Chambers, also, known as Commodore all together . . .
Ms. Scott stated that Commodore Chambers and Bobby
Blakeney [sic] came to Ms. Gwinn’s apt. after Cynthia
Gwinn had gotten back from the store and that Cynthia
Gwinn had asked Barnes, Chambers and Blakeney [sic]
to leave and that all 3 left together.
(Doc.

12-13.)

In

contrast,

Agent

Gale’s

version

of

Scott’s statement is as follows:
At approximately 7:30 p.m. last night, when it was
dark, Commodore Chambers came to Apartment #9
looking for James Chambers.
Commodore Chambers is
James Chambers’ nephew.
At approximately 9 p.m.

49

Teresa

last night, Timmy Barnes[ 19] knocked on the door of
Apartment #9 and asked for Cynthia.
Cynthia had
gone to the store with James Chambers.
Kay Miller
and Greg Pulliam had taken Scott’s granddaughter to
SpeeDee Mart to buy candy. When Timmy Barnes came
into the apartment, he said he was going to kill
Stag Bailey.
She does not know why he said this.
She did not see a gun on Barnes. She made Barnes
come in the apartment, sit down, and calm down.
When Cynthia came back into the apartment, she said
she did not want Timmy Barnes in her apartment, so
Barnes left. Scott does not remember Commodore
Chambers coming back into the apartment and does not
remember anyone else being in there.
(Doc. 12-14.)

Petitioner contends that only Detective Barber’s

version of Teresa Scott’s statement puts the three defendants
together before the murder, and that Agent Gale’s version of the
statement,

which

was

not

turned

over

to

the

defense,

was

exculpatory and materially inconsistent with Detective Barber’s
version.
In

assessing

this

claim,

the

state

court

found

that

Petitioner did not meet his burden of proof to show that the
evidence was not disclosed by the prosecution.

The Magistrate

Judge noted that this finding is presumed to be correct, and
that

Petitioner

failed

to

meet

his

burden

of

presumption by clear and convincing evidence.
§ 2254(e)(1).

Petitioner

contends

that

the

rebutting

the

See 28 U.S.C.
Magistrate

Judge

erred, as “[a]ll the evidence at the MAR hearing established
that the defense was never provided with a copy” of Agent Gale’s
19

“Timmy” was Petitioner’s nickname.

50

(Doc. 1 at 7; Doc. 12-3 at 2.)

report.

(Doc. 26 at 22.)

Petitioner points to the testimony of

his trial counsel at the MAR hearing to support his contention
that Agent Gale’s version of Teresa Scott’s statement was never
disclosed to him.
At the MAR hearing, both of Petitioner’s lawyers -- Mr. Lea
and Mr. Fritts -- testified about Agent Gale’s version of Teresa
Scott’s statement.

When asked about Agent Gale’s version, Mr.

Lea testified: “I think the statement we were given in this
situation,

based

on

the

way

the

evidence

came

in,

was

the

statement of Barber and not the statement of Gale . . . Now,
that’s an opinion.

I don’t remember that specifically but I

think I would have remembered . . .”
Similarly,

Mr.

Fritts

testified:

“I

(MAR H’rg Tr. at 65.)
don’t

think

others” in reference to the statement at issue.

I

had

these

(Id. at 144.)

Later, Mr. Fritts also testified that “I’ve got a pretty strong
opinion that the one I got was [Barber’s version].

If I got

[Gale’s version], I think I would have done something with it.
I sure hope I would have.”
This

testimony

falls

(Id. at 151.)
short

of

the

clear

standard that Petitioner alleges it satisfies.

and

convincing

The statements

of Mr. Lea and Mr. Fritts are far from unequivocal; instead, at
best, they establish that trial counsel cannot remember whether
or not they received Gale’s statement but feel they may not
have.

Trial counsel’s testimony indicates they are attempting
51

to reconstruct their memories based on what they now think they
would have done with Gale’s statement.

It is impossible to tell

if these perceptions are animated by hindsight or true memory.
But regardless, under a clear and convincing standard, trial
counsel’s testimony is insufficient to show that the information
at issue was never disclosed by the prosecution.
Even if the court assumes that Gale’s version of Teresa
Scott’s

statement

was

not

disclosed

to

Petitioner’s

trial

counsel, the statement does not meet the requirements of Brady.
The differences between Detective Barber’s version, which was
disclosed to Petitioner, and Gale’s version are not material.
As

noted,

“a

demonstration
suppressed

showing
by

a

evidence

must

only

look

materiality

preponderance
would

defendant's acquittal.”
court

of

have

that

resulted

does

not

disclosure
ultimately

Kyles, 514 U.S. at 434.
to

see

if

the

require
of

the

in

the

Instead, the

government's

suppression

“undermines confidence in the outcome of the trial.”

Bagley,

473 U.S. at 678.
Both

statements

show

that

Scott

placed

Chambers at Gwinn’s apartment before the murder.

Petitioner

and

Additionally,

as noted by the Magistrate Judge, both state that Scott said
Chambers left Gwinn’s apartment, just not at the same time as
Petitioner in Gale’s version.

In fact, the only substantial

difference between the two versions is that Gale’s version has
52

only Barnes and Chambers at Gwinn’s apartment, while Barber’s
version has Barnes, Chambers, and Blakney at Gwinn’s apartment.
But although this difference exists, it is not material under
Brady.

There

is

no

indication

that

there

is

a

“reasonable

probability” of a different result if Gale’s version had been
disclosed.

Evidence from two other witnesses shows that all

three defendants were in fact together in Gwinn’s kitchen and
that they left the apartment together.

(Tr., Vol. III at 135

(testimony

three

of

defendants)]
(testimony

Greg

.
of

Pulliam

.

went

.

Greg

that

into

Pulliam

the

that

“All

of

apartment”));
“All

three

of

them

[(the

(id.

at

them

139

[(the

defendants)] left together and that was it”)); (Tr., Vol. II at
294

(testimony

of

James

Roger

Chambers

that

Frank

Chambers,

Petitioner, and Blakney were all in Cynthia Gwinn’s apartment);
(id.

at

295

Chambers,

(testimony

Petitioner,

of

and

James

Roger

Blakney

all

Chambers
left

that

Cynthia

Frank

Gwinn’s

apartment together).)
In sum, because Petitioner did not meet his burden to show
that the evidence at issue was not disclosed and, even if it was
not disclosed would be material under Brady, the court cannot
say

that

the

state

court

unreasonably

applied

clearly

established federal law in finding that this claim was without
merit.

Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (noting

that the standard of unreasonable application of federal law is
53

a

“substantially

higher

threshold”

than

incorrect application of federal law).
presented
Scott’s

a

strong

statement

case
was

that

standard

of

an

Thus, even if Petitioner

Agent

material

the

Gale’s

under

version

Brady,

the

of

court

Teresa
still

cannot say that the state court’s conclusion was so in error
that it was beyond the possibility of fair-minded disagreement.
Police log 20

4.

Lastly, Petitioner argues that the Magistrate Judge wrongly
concluded

that

the

state

court

did

not

unreasonably

apply

clearly established federal law when it rejected his Brady claim
based on the prosecution’s failure to turn over a police log
from the night of the murders.

This log shows that Louise

Edwards called the police and reported that her landlord’s son,
Marty Manning, “saw two of the men” walking towards the victims’
house around 10:15 p.m.

(Doc. 12-21.)

Petitioner claims that

the prosecutor failed to disclose this exculpatory information
to

Petitioner’s

trial

counsel,

thus

constituting

a

Brady

violation.
In reviewing this police log, the court agrees with the
state

court

and

Magistrate

Judge

that

it

materiality prong under the Brady analysis.

fails

to

meet

the

The mere fact that

a witness saw two men approaching the victims’ home at the time
20

The objections label this contention under heading “VII” although
there is no heading VI. (Doc. 26 at 32.)

54

of

the

murder

Petitioner’s

does

trial

or

not

throw

undermine

doubt

on

confidence

the
in

outcome
the

of

verdict.

There was substantial other evidence introduced at trial that
clearly

placed

the

defendants

together

on

the

night

of

the

murders (e.g., the testimony of James Roger Chambers, Teresa
Scott, and Antonio Mason).

Further, there is ample evidence

showing that the defendants were together after the murders.
(Tr., Vol. II at 12) (testimony of Valerie Mason that Chambers,
Petitioner, and Blakney were together at Sharon Mason’s house
after the murders); (id. at 169) (testimony of Sharon Mason that
the

three

defendants

entered

her

home

together

after

the

murders); (Tr., Vol. I at 241) (testimony of Antonio Mason that
the three defendants were together after the murders at Sharon
Mason’s house).

In the face of this other evidence, the court

cannot say that in finding no Brady violation the state court’s
decision

was

so

lacking

could not disagree.
E.

in

judgment

that

reasonable

jurists

As such, Petitioner’s claim is denied.

Remaining Claims

When
Magistrate

timely
Judge’s

and

specific

objections

recommendations,

findings and recommendations de novo.

this

are

court

made

to

reviews

the
those

However, if no objection

is made, the court will review the remaining claims for clear
error.

Diamond, 416 F.3d at 315.

55

After a thorough review of Barnes’ remaining claims, the
applicable law, and the Recommendation of the Magistrate Judge,
the court finds no clear error.
III. CONCLUSION
The

court

has

carefully

reviewed

those

portions

of

the

Recommendation of the United States Magistrate Judge to which
objections were made and has made a de novo determination.
court’s

determination

is

in

accord

with

the

The

Recommendation,

which is ADOPTED, as explained further herein.
IT

IS

THEREFORE

ORDERED

that

the

petition

(Doc.

1)

be

DENIED.
In this capital case, Petitioner has made a sufficiently
substantial
under

28

showing
U.S.C.

of

§

the

denial

2253(c)(2)

of

to

a

constitutional

warrant

the

grant

right
of

a

certificate of appealability with respect to the issue whether a
juror’s

contact

with

her

pastor

Amendment right to a fair trial.

violated

Judgment

will

be

entered

Sixth

A certificate of appealability

is therefore issued on this question.
A

Petitioner’s

28 U.S.C. § 2253(c)(3).

contemporaneously

with

this

Memorandum Opinion and Order.

/s/
Thomas D. Schroeder
United States District Judge
March 28, 2013

56