Conner v. Polk ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JERRY WAYNE CONNER, 
Petitioner-Appellant,
v.
 No. 04-23
MARVIN POLK, Warden, Central
Prison, Raleigh, North Carolina,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CA-00-546-5-BO-HC)
Argued: February 1, 2005
Decided: May 3, 2005
Before LUTTIG, KING, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge King wrote the majority opin-
ion, in which Judge Shedd joined. Judge Luttig wrote a dissenting
opinion.
COUNSEL
ARGUED: Kenneth Justin Rose, CENTER FOR DEATH PENALTY
LITIGATION, INC., Durham, North Carolina, for Appellant. Steven
Mark Arbogast, Special Deputy Attorney General, NORTH CARO-
LINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee. ON BRIEF: Mark J. Kleinschmidt, CENTER FOR
2 CONNER v. POLK
DEATH PENALTY LITIGATION, INC., Durham, North Carolina,
for Appellant. Roy Cooper, Attorney General of North Carolina,
Raleigh, North Carolina, for Appellee.
OPINION
KING, Circuit Judge:
In April 1991, Jerry Wayne Conner was convicted by a jury in the
Superior Court of Gates County, North Carolina, for the first-degree
murders of Minh Linda Luong Rogers ("Minh") and her sixteen-year
old daughter, Linda Minh Rogers ("Linda"), as well as the related
crimes of first-degree rape and robbery with a firearm. The jury rec-
ommended that Conner be sentenced to death, and the presiding judge
imposed two death sentences. On direct appeal, the Supreme Court of
North Carolina affirmed Conner’s convictions but vacated his death
sentences, and awarded him a new capital sentencing proceeding.
State v. Conner, 440 S.E.2d 826 (N.C. 1994) ("Conner I"). At his sec-
ond sentencing proceeding, the jury again recommended and the
judge imposed two death sentences.
Conner then unsuccessfully directly appealed the death sentences
imposed after his retrial, State v. Conner, 480 S.E.2d 626, 627 (N.C.
1997) ("Conner II") cert. denied, 522 U.S. 876 (1997). He thereafter
unsuccessfully sought state post-conviction relief. State v. Conner,
No. 90-CRS-648;649 (N.C. Super. Ct. May 5, 1999) (the "MAR
Opinion"); State v. Conner, 544 S.E.2d 550 (N.C. 2000). He then
turned to the federal courts and sought habeas corpus relief, pursuant
to 28 U.S.C. § 2254, in the Eastern District of North Carolina. See
Conner v. Lee, No. 5:00-HC-546-BO (E.D.N.C. Mar. 12, 2004)
("Opinion I").1 The district court dismissed Conner’s § 2254 petition
without a hearing, see Opinion I at 46, but granted his subsequent
application for a certificate of appealability ("COA") under 28 U.S.C.
§ 2253(c), see Conner v. Lee, No. 5:00-HC-546-BO (E.D.N.C. July
1
Conner’s § 2254 petition names Marvin Polk, Warden of the Central
Prison in Raleigh, North Carolina, as Respondent. We refer to Respon-
dent Polk as "the State."
CONNER v. POLK 3
12, 2004) ("Opinion II"). The COA awarded by the district court
relates to Conner’s claim that his Sixth and Fourteenth Amendment
rights were denied when Helene Knight, a local newspaper reporter
who had extensively covered his first trial, was permitted to serve as
a juror in his second sentencing proceeding. As explained below, we
are obliged, pursuant to the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), 28 U.S.C. § 2254, to affirm the district
court’s denial of habeas corpus relief on the claim presented by Con-
ner’s COA.
I.
The factual underpinnings of Conner’s convictions were described
in some detail by the Supreme Court of North Carolina in its opinion
in Conner’s first direct appeal. Those facts are set forth here in haec
verba:
The State’s evidence at trial tended to show that on the
evening of 18 August 1990, Harold Lowe, his girlfriend,
Kathy Winslow, and Chris Bailey stopped at Rogers’ Gro-
cery outside Gatesville, North Carolina, at approximately
9:30 p.m. They parked in the lot under a streetlight facing
the highway waiting for a friend, Will Harrell, to arrive.
After a few minutes, Harold Lowe saw Minh Rogers and an
unknown white male leave the store. Minh and the man
talked for a few minutes and then Minh Rogers reentered the
building. Chris Bailey testified that he first noticed the white
male walking from the store toward a white car parked in
the lot. A few moments later, that same white male was car-
rying a shotgun and walking toward the vehicle in which
Bailey was sitting.
Not having paid further attention after Minh Rogers reen-
tered the store, Mr. Lowe testified he was startled when that
same man appeared at the passenger window of his truck
holding "some kind of identification with a picture." The
man stated he was an agent with DEA and that undercover
officers were preparing to execute a drug bust in the imme-
diate vicinity in an effort to seize over $ 1.5 million worth
of cocaine. He further informed Mr. Lowe that if he did not
4 CONNER v. POLK
want to be an accessory to the crime, he and his friends
should leave the premises immediately. Lowe, Bailey, and
Wilson each positively identified defendant at trial as the
man who approached their car and warned them to leave the
parking lot.
Will Harrell testified that he stopped by Rogers’ Grocery
at approximately 9:50 p.m. on the evening of 18 August
1990. As he entered the store, he recognized the owner of
the establishment talking to a white male he did not know.
The white male was of medium build, was approximately
five-feet ten inches tall, and was wearing a plaid shirt and
a baseball cap. At trial, Mr. Harrell positively identified
defendant as the man he saw in Rogers’ Grocery on the
night of 18 August 1990.
SBI [State Bureau of Investigation] Agent Eric A. Hooks
testified to statements made by Daniel Oliver Croy in a
series of interviews beginning on the morning of 19 August
1990. In essence, Mr. Croy told various investigating offi-
cers that he stopped by Rogers’ Grocery on the evening of
18 August 1990 after dinner. He "drank some beer, sat
around, and talked with Linda [sic] Rogers, [and] her daugh-
ter." During this time, a white stocky male of medium
height, thirty to thirty-five years of age, entered the store,
made some purchases, chatted for a while with Minh and
then left. Mr. Croy noted that the individual had a mous-
tache and was wearing a baseball cap. Mr. Croy left the gro-
cery store around 8:45 p.m.; and as he was backing out of
his parking space, the same man he had seen inside Rogers’
Grocery drove up beside him on the driver’s side of the car.
The man told Mr. Croy that he was an "SBI agent working
with DEA on a big drug deal that was going down in the
area." At one point during the conversation, the man asked
Mr. Croy if he would like to see his credentials. He then
held up a pump shotgun and said "there’s my credentials."
Mr. Croy left shortly thereafter but recalls that the lights in
the store were on and the store was apparently still open.
John Lambert, a part-time employee of Rogers’ Grocery,
testified that on the morning of 19 August 1990, he arrived
CONNER v. POLK 5
at the store at 9:00 a.m. only to find he had left his key at
home. After retracing his steps, he returned to the store with
the key and noted that the door lock didn’t make the usual
clicking sound. He then realized the door had apparently
been left open overnight. When he entered the store, Mr.
Lambert found the bodies of Minh and Linda Rogers.
Deputy George M. Ryan of the Gates County Sheriff’s
Department described the crime scene. The nude body of
Linda Rogers was lying on her back in a large pool of blood
concentrated around her neck, shoulders, and abdomen. He
noted a gaping gunshot wound in her upper chest and that
the teeth in her mouth were "just shattered." Minh Rogers’
body was found on a lounge chair behind the counter.
Although she was fully clothed, her pullover sweater had
been pulled up just below her breasts and her shorts had
been unzipped and pulled down. She was covered in blood.
After securing the scene, Deputy Ryan notified the SBI.
Dr. Page Hudson, former Chief Medical Examiner for the
State of North Carolina, performed the autopsies on 20
August 1990. He stated that the cause of death for Minh
Rogers was a gunshot wound to the head causing massive
destruction of the skull and brain. He further opined that the
shot was fired from a very short distance — two to four feet.
Spermatozoa were present in the vaginal cavity of Linda
Rogers indicating that she had been sexually active just
prior to her death. The younger woman died from a "shot-
gun wound to the under surface of chin and neck."
On the morning of 31 August 1990, SBI Special Agent
Malcolm McLeod, Gates County Deputy Sheriff George
Ryan, and Hertford County Deputy Sheriff Ronnie Stallings
questioned defendant concerning the murders at Rogers’
Grocery on the night of 18 August. After an initial attempt
to mislead the officers, defendant related the following
sequence of events. On the day defendant was fired from his
job as a truck driver with Rose Brothers (either the thir-
teenth or fourteenth of August 1990), he stopped at the Fast
Fare in Murfreesboro. He engaged in an extensive conversa-
6 CONNER v. POLK
tion with a black male whom he did not know personally but
had seen on numerous occasions. The man was approxi-
mately six-feet tall, weighed 240 pounds, and was in his
thirties with slightly graying hair. The conversation centered
upon whether defendant was interested in making some
quick, "illegal money." Even after being offered $ 7000 to
kill a "Japanese woman who ran a store in Gates County,"
defendant informed the man he was not interested and left.
However, as financial problems began to arise, defendant
drove back to Murfreesboro to locate the black male. When
he was unable to find him, defendant decided to kill the
woman and try to collect the money afterwards.
Defendant further informed the officers that on Saturday,
18 August, he drove to Gates County, located Rogers’ Gro-
cery, and went inside. He left shortly thereafter since there
were several customers inside. On the next several times he
drove by, there were vehicles in the parking lot. When he
finally found the lot relatively empty, he parked his car and
entered the store carrying his 12-gauge pump, sawed-off
shotgun with pistol grips. When he walked in, defendant
told Minh Rogers he was going to shoot her. She laughed.
He then forced her to lie down upon a lounge chair located
behind the counter. When she attempted to rise, he shot her
in the upper chest area from a distance of approximately
eight (8) inches. Upon being startled by the victim’s teenage
daughter entering the main room of the store, defendant held
her at gunpoint. After searching her for a weapon, he
ordered her to take off her clothes. He then raped Linda
Rogers and shot her in the upper chest. Defendant remem-
bered talking with some people in the parking lot of Rogers’
Grocery but does not recall identifying himself as a law
enforcement officer. Before fleeing the scene, defendant
picked up a dark colored briefcase, a bank bag, and the
money from the cash register.
Defendant modified this version of his confession to state
that, on 18 August 1990, he had stopped in Rogers’ Grocery
to get something to drink. An older white male and the
woman who owned the store started to tease him — calling
CONNER v. POLK 7
him "cowgirl" or "cowboy". He became angry, left the store,
and went to Alvin Riddick’s home where he stayed until
after dark. While drinking two bottles of George Dickel
whiskey, defendant became more and more upset about his
treatment at the store earlier in the day. He returned to the
store finding only Minh Rogers and the white male present.
As he entered the store, the white male called him a "dick-
head." Defendant suggested the two men go outside and
fight. Outside, however, the unidentified white male indi-
cated he was not interested in fighting and left. Defendant
then proceeded to kill the two women as he previously indi-
cated.
The State produced extensive physical evidence through
numerous witnesses including SBI agents, FBI agents, and
deputies of the Gates and Hertford County Sheriffs’ Depart-
ments which corroborated the testimony of the prosecution
witnesses and the main elements of defendant’s confession.
Conner I, 440 S.E.2d at 829-31. At the conclusion of the guilt phase
of Conner’s first trial, the jury convicted him on all charges — two
counts of first-degree murder and one count each of first-degree rape
and robbery with a firearm. Id. at 831. After the separate sentencing
phase of the proceeding, the jury recommended that Conner receive
two death sentences on the murder convictions. Id. On direct appeal,
the Supreme Court of North Carolina found no error meriting reversal
of Conner’s convictions. Id. However, because the trial court had
improperly restricted voir dire on whether prospective jurors would
automatically impose the death penalty, in contravention of Morgan
v. Illinois, 504 U.S. 719 (1992), the court vacated Conner’s death sen-
tences (but not his sentences for rape and robbery) and remanded for
a new capital sentencing proceeding. Id.
In January 1995, Conner’s second sentencing proceeding was con-
ducted, pursuant to N.C. Gen. Stat. § 15A-2000 (providing require-
ments for capital sentencing proceeding). At its conclusion, the jury
found two aggravating factors for each murder: that they were com-
mitted during the commission of a felony and were each part of a
course of conduct by the defendant which included crimes of violence
against another person. Conner II, 480 S.E.2d at 628. The jury also
8 CONNER v. POLK
found two statutory and three non-statutory mitigating factors, but
concluded that the mitigating circumstances were insufficient to out-
weigh the aggravating circumstances. Id. at 628-29. The jury recom-
mended that Conner be sentenced to death on each murder conviction,
which the trial judge imposed. Id. at 629.
On appeal, the Supreme Court of North Carolina upheld Conner’s
death sentences, see Conner II, 480 S.E.2d at 636, and the Supreme
Court denied his petition for a writ of certiorari, see Conner v. North
Carolina, 522 U.S. 876 (1997). On July 28, 1998, Conner filed a
motion for appropriate relief ("MAR"), see N.C. Gen. Stat. § 15A-
1415, in the Superior Court of Gates County, and the State thereafter
responded with its answer and a motion for judgment on the pleadings.2
On May 5, 1999, the Superior Court issued its MAR Opinion, deny-
ing Conner’s MAR on the pleadings. See MAR Opinion at 38. On
August 24, 2000, the Supreme Court of North Carolina declined to
review the MAR Opinion. State v. Conner, 544 S.E.2d 550 (N.C.
2000).
On September 15, 2000, Conner filed his § 2254 petition for habeas
corpus relief in the Eastern District of North Carolina, including a
request for an evidentiary hearing. In November 2000, the State filed
its answer and also a motion for summary judgment. On March 12,
2004, the district court granted the State’s motion and denied Con-
ner’s request for an evidentiary hearing. See Opinion I. On August 11,
2004, Conner filed a motion in the district court seeking a COA on
three bases, contending, inter alia, that he was denied his constitu-
tional right to a fair trial when a local reporter, who had covered his
first trial, later served as a juror in his second sentencing proceeding.
On September 12, 2004, the district court granted Conner a COA on
that claim only, pursuant to 28 U.S.C. § 2253(c), concluding that
Conner had made a substantial showing of the denial of a constitu-
tional right. The court denied Conner’s application for a COA on his
two other contentions. See Opinion II at 3. This appeal followed, and
2
A defendant convicted of a capital crime in North Carolina may seek
post-conviction relief by way of an MAR. An MAR is not identical to
a habeas corpus petition but, in North Carolina, any attempt to obtain
relief from "errors committed in criminal trials" may be made by MAR.
See N.C. Gen. Stat. § 15A-1401.
CONNER v. POLK 9
we possess jurisdiction to review the claim presented by Conner’s
COA pursuant to 28 U.S.C. § 1291.
II.
We review de novo a district court’s "decision on a petition for writ
of habeas corpus based on a state court record." Basden v. Lee, 290
F.3d 602, 608 (4th Cir. 2002)(internal quotation marks omitted).
Additionally, we review for abuse of discretion a district court’s fail-
ure to conduct an evidentiary hearing or to authorize discovery pro-
ceedings. Thomas v. Taylor, 170 F.3d 466, 474-75 (4th Cir. 1999).
Pursuant to AEDPA, a federal court may award habeas corpus
relief with respect to a claim adjudicated on the merits in state court
only if the adjudication resulted in a decision that: (1) was "contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States"; or (2) was "based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding."
28 U.S.C. § 2254(d). As the Supreme Court has explained, a state
court adjudication is "contrary to" clearly established federal law only
if "the state court arrives at a conclusion opposite to that reached by
[the Supreme] Court on a question of law or if the state court decides
a case differently than [the] Court has on a set of materially indistin-
guishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000).
"Under the ‘unreasonable application’ clause, a federal habeas court
may grant the writ if the state court identifies the correct governing
legal principle from [the] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case." Id. Finally, a state
court’s findings of fact are entitled to a "presumption of correctness,"
which a petitioner may rebut only by "clear and convincing evi-
dence." 28 U.S.C. § 2254(e)(1).
III.
Conner contends that he was denied his constitutional right to due
process and to a fair and impartial jury, in violation of the Sixth and
Fourteenth Amendments, because juror Knight was biased. Conner’s
argument is twofold: first, that Knight was biased because she failed
to answer honestly a material question at voir dire, in contravention
10 CONNER v. POLK
of McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548
(1984); and, second, that Knight was necessarily biased because she
had covered the first trial extensively as a reporter and had outside
information about the case, under the principles enunciated in Smith
v. Phillips, 455 U.S. 209, 222 (1982) (O’Connor, J., concurring). Fur-
thermore, Conner asserts that he is entitled to an evidentiary hearing
as to juror bias. As explained below, we reject each of Conner’s con-
tentions.
A.
The Sixth Amendment, which is applicable to the states through
the Fourteenth Amendment, see Irvin v. Dowd, 366 U.S. 717, 722
(1961), requires that a defendant be accorded an impartial jury in all
criminal prosecutions. Furthermore, as we observed in Jones v. Coo-
per, "‘[d]ue process alone has long demanded that, if a jury is to be
provided the defendant, regardless of whether the Sixth Amendment
requires it, the jury must stand impartial and indifferent to the extent
commanded by the Sixth Amendment.’" 311 F.3d 306, 310 (4th Cir.
2002) (quoting Morgan v. Illinois, 504 U.S. 719, 727 (1992)). Put
simply, if "even one [partial] juror is empaneled" and the death sen-
tence is imposed, "the State is disentitled to execute the sentence."
Morgan, 504 U.S. at 728.
1.
In McDonough, the Supreme Court spelled out its particularized
test for determining whether a new trial is required due to juror deceit
during voir dire or on jury questionnaires. Id. at 556. In order to
obtain a new trial under the two-part McDonough test, a defendant
"must first demonstrate that a juror failed to answer honestly a mate-
rial question . . . and then further show that a correct response would
have provided a valid basis for a challenge for cause." Id. Although
in McDonough the juror’s incorrect voir dire response was an honest
mistake, the McDonough test has been applied equally to deliberate
concealment and to innocent non-disclosure. See Jones, 311 F.3d at
310.
Conner contends that Knight "failed to answer honestly" under
McDonough when she responded negatively to the following question
CONNER v. POLK 11
from the trial court during voir dire in the second sentencing proceed-
ing: "And have you heard this case discussed by any person who indi-
cated direct or firsthand knowledge of the facts about the case other
than the witnesses that you heard?" Knight had, as a journalist, cov-
ered Conner’s first trial extensively for the local newspaper, the Gates
County Index. In the MAR proceeding, Conner submitted the affida-
vits of an investigator and two law students alleging that Knight had
admitted to them that, as a local journalist, she had communicated
with and obtained information regarding the murders of Linda and
Minh, which was not available to the public, from Gates County Sher-
iff Elmo Benton and Deputy Sheriff George Ryan (who testified at
Conner’s first trial).3 Conner maintains that, contrary to her voir dire
response, Knight had direct or firsthand knowledge of the facts of the
crime.
The MAR court determined that a fair and reasonable reading of
the voir dire proceeding was that Knight did not consider police or
investigators as individuals with "firsthand knowledge of the facts
about the case." MAR Opinion at 8. Rather, the MAR court con-
cluded that Knight interpreted the inquiry to refer to witnesses who
had observed Conner at the murder scene on the night of the crime
or who had discovered the bodies. Id. We are unable to find the MAR
court’s determination to be unreasonable, in light of Knight’s forth-
right responses regarding her knowledge and coverage of Conner’s
first trial and the full awareness of all involved — the trial judge, the
prosecutor, and the defense counsel — that she possessed detailed
knowledge of the background of Conner’s case and of his previous
trial. See 28 U.S.C. § 2254(d)(2) (providing that writ shall not be
granted unless adjudication resulted in decision based on unreason-
able determination of facts in light of evidence presented in State
court); see also MAR Opinion at 6-9 ("The transcript shows that the
trial court, prosecutor, and trial counsel were all fully aware that juror
Helene Knight had covered defendant’s first trial in her professional
capacity as a newspaper reporter."). And Conner offered no evidence
3
Although the MAR court struck portions of the affidavits submitted
by Conner because they contained "inadmissible hearsay," see MAR
Opinion at 6, we do not reach his contention that this ruling was
improper. Even considering the stricken portions of the affidavits, Con-
ner is not entitled to relief.
12 CONNER v. POLK
to the contrary, i.e., to show that Knight had in fact communicated
with witnesses with "firsthand knowledge" of the crime, as that
inquiry was interpreted by the MAR court. We therefore conclude
that Conner is not entitled to relief on his contention that Knight
"failed to answer honestly a material question" at voir dire. McDo-
nough, 464 U.S. at 556.
2.
In the alternative, Conner contends that Knight’s relationship to
this case presents an extraordinary circumstance mandating that we
find juror bias. See Smith v. Phillips, 455 U.S. 209, 222 (1982)
(O’Connor, J., concurring) ("While each case must turn on its own
facts, there are some extreme situations that would justify a finding
of implied bias.").4 Those extreme situations, however, exist only
"where the relationship between a prospective juror and some aspect
of the litigation is such that it is highly unlikely that the average per-
son could remain impartial in his deliberations under the circum-
stances." Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988). Some
examples provided by Justice O’Connor of circumstances where bias
might be presumed include "a revelation that the juror is an actual
employee of the prosecuting agency, that the juror is a close relative
of one of the participants in the trial or the criminal transaction, or
that the juror was a witness or somehow involved in the criminal
transaction." Phillips, 455 U.S. at 222 (O’Connor, J., concurring).
Although a reasonable person could well view Knight’s presence
on the jury at Conner’s second trial as troubling (given her extensive
coverage and knowledge of the first trial), the underlying facts do not,
standing alone, compel the conclusion that she was a biased juror.5 In
4
There may be some question as to whether implied bias remains a via-
ble doctrine following the Supreme Court’s majority opinion in Smith v.
Phillips, 455 U.S. 209, 218-19 (1982). Id. at 221 (O’Connor, J., concur-
ring) (writing separately to express her "view that the [majority] opinion
does not foreclose the use of ‘implied bias’ in appropriate circum-
stances"); cf. Fitzgerald v. Greene, 150 F.3d 357, 365 (4th Cir. 1998)
(noting that the majority opinion in Smith appeared to undermine the
legitimacy of the implied bias doctrine). For our purposes here, however,
we assume the doctrine’s continued viability.
5
In these circumstances, some may have difficulty understanding how
all those involved — the defense counsel, the prosecution, and the trial
CONNER v. POLK 13
assessing a question of bias, we must examine Knight’s motives and
the "reasons that affect a juror’s impartiality." See Jones v. Cooper,
311 F.3d 306, 313 (4th Cir. 2002) (quoting McDonough, 464 U.S. at
556). In these circumstances, there is simply no evidence that Knight
had any improper motive, much less evidence raising questions as to
her impartiality.
Conner’s allegations regarding juror bias are readily distinguish-
able from the circumstances of those cases where courts have found
such bias, for two fundamental reasons. First, in one set of those deci-
sions, the jurors were allowed to serve over the objection of defense
counsel, or counsel lacked knowledge of the facts giving rise to the
juror’s potential bias. See Williams v. Taylor, 529 U.S. 420 (2000)
(remanding for evidentiary hearing where juror lied about relationship
with prosecution witness and about prosecutor once representing her);
Leonard v. United States, 378 U.S. 544 (1964) (reversing conviction
where defendant had objected to composition of jury whose members
included persons present when guilty verdict was returned against
him in another case); Wall v. Superintendent, Va. State Penitentiary,
553 F.2d 359 (4th Cir. 1977) (ordering new trial where counsel
objected to jurors who had served as jurors in another case where
defendant had testified); Donovan v. Davis, 558 F.2d 201 (4th Cir.
1997) (ordering new trial where counsel had moved to quash jury
venire to avoid having jurors from first trial seated at second trial). By
contrast, Conner and his trial counsel (in addition to the judge and the
prosecution) had actual knowledge of Knight’s preexisting relation-
ship with his case, and all those involved accepted her as a juror in
his second trial. MAR Opinion at 9.6
judge — accepted Knight as a juror. There is no ineffective assistance
claim in this appeal, however, and "[c]ounsel’s actions during voir dire
are presumed to be matters of trial strategy." Miller v. Francis, 269 F.3d
609, 615-16 (6th Cir. 2001); see also Cage v. McCaughtry, 605 F.3d 625,
627 (7th Cir. 2002); Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000);
Knox v. Johnson, 224 F.3d 470, 479 (5th Cir. 2000).
6
On this record, we have no basis on which to conclude that juror
Knight’s voir dire response that she had not "heard this case discussed
by any person who indicated direct or firsthand knowledge of the facts
about the case other than the witnesses that [she] heard" was at all mis-
14 CONNER v. POLK
Second, in other decisions where juror bias has been found, some
outside influence impacted a juror during trial. See Turner v. Louisi-
ana, 379 U.S. 466 (1965) (reversing conviction where deputy sheriffs
who testified at trial ate with, conversed with, and ran errands for
jurors during trial and defendant sought mistrial after they testified);
see also Fullwood v. Lee, 290 F.3d 663 (4th Cir. 2002) (awarding evi-
dentiary hearing where affidavit offered by petitioner alleged that
juror was pressured by her husband during proceedings — apparently
effectively — to vote for death sentence). In Conner’s second trial,
Knight had no improper outside contacts, either pressuring her to vote
in a certain manner or to trust particular witnesses. And, as we have
noted, Conner and his defense counsel were well-aware of Knight’s
extensive newspaper coverage and relationship with his case, unlike
the situations presented in Turner and Fullwood. MAR Opinion at 6-
9.
These distinguishing factors are significant for the reason that noth-
ing here suggests that the jury was not "capable and willing to decide
the case solely on the evidence before it." Smith, 455 U.S. at 217
(emphasis added); see Turner, 379 U.S. at 472-73 ("[T]he ‘evidence
developed’ against a defendant shall come from the witness stand in
a public courtroom."). As the MAR court observed, "[n]othing in
[Knight’s] responses shows an unwillingness or inability to be fair,
impartial, follow the trial court’s instructions, and base her decisions
on evidence presented to her as a juror." MAR Opinion at 7-9 ("She
unequivocally stated her ability to make her decisions solely on evi-
dence that would be presented to her as a juror."). Put simply, Conner
has failed to allege (and thus cannot establish) that anyone sought to
influence the verdict in his second trial at any time before or during
deliberations.
In these circumstances, Conner has failed to show that the MAR
court’s decision was contrary to, or an unreasonable application of,
leading; indeed, there is no indication that she was being other than
entirely candid. Based upon her answers to the approximately 130 ques-
tions at voir dire, Conner’s lawyer was well aware of Knight’s knowl-
edge of the prior death sentence and her relationship with the trial
attorneys and witnesses.
CONNER v. POLK 15
clearly established Supreme Court precedent, because the decisions
on which he relies, i.e., Williams, Leonard, and Turner, are each dis-
tinguishable. Therefore, Conner is not entitled to § 2254 relief on the
ground that juror Knight was biased.
B.
In seeking habeas corpus relief, Conner also requested that the dis-
trict court conduct an evidentiary hearing, affording him the opportu-
nity to examine the relevant witnesses. A federal court may not grant
an evidentiary hearing to a habeas corpus petitioner if the petitioner
"failed to develop the factual basis of [his] claim in state court." See
28 U.S.C. § 2254(e)(2). Because the State does not assert that Conner
failed to develop the factual basis of his juror bias claim in state court,
the district court could have conducted an evidentiary hearing on this
point, but only if Conner had first alleged "additional facts that, if
true, would entitle him to relief," and if Conner had then established
one of the factors set forth in Townsend v. Sain, 372 U.S. 293 (1963).
Fullwood, 290 F.3d at 681 (internal quotation marks omitted).7
There was no error in the district court’s denial of an evidentiary
hearing because, even if the facts alleged by Conner are taken as true,
he would not be entitled to relief. More specifically, Conner failed to
allege sufficient facts to entitle him to relief on grounds that Knight
"failed to answer honestly a material question" at voir dire. See
McDonough, 464 U.S. at 556. In the MAR proceeding, the court
found that Knight had been asked on voir dire only if she had contact
with witnesses to the crime:
[A] fair and reasonable reading of the entire voir dire leads
to the conclusion that juror Helene Knight did not consider
policy and investigative personnel ‘persons with firsthand
knowledge.’ There is no contention or evidence that juror
Helene Knight ever spoke with or otherwise had any contact
7
We need not address any issue relating to the Townsend factors,
because Conner has not alleged facts that, if true, would entitle him to
habeas corpus relief. See Townsend, 372 U.S. at 313 (listing factors to
be assessed in determining whether evidentiary hearing is warranted).
16 CONNER v. POLK
with persons present at the Rogers Grocery on the evening
of the murders or who initially discovered the bodies.
MAR Opinion at 8. This determination constitutes a factual finding
made by a state court that we presume to be correct, see 28 U.S.C.
§ 2254(e)(1), and which Conner has failed to rebut by clear and con-
vincing evidence, see 28 U.S.C. § 2254(e)(2)(B). As the MAR court
observed, even if Conner could prove the allegations made in the affi-
davits, he has offered no evidence to show that Knight lied on voir
dire. MAR Opinion at 8. Therefore, we are unable to conclude that
the district court erred in its determination that Conner is not entitled
to an evidentiary hearing. See McDonough, 464 U.S. at 556.
IV.
Pursuant to the foregoing, we affirm the district court’s denial of
habeas corpus relief.
AFFIRMED
LUTTIG, Circuit Judge, dissenting:
Conner has alleged facts that, if true, establish that the state court’s
decision of his Sixth Amendment claim was both contrary to and an
unreasonable application of the Supreme Court’s clearly established
law on juror bias. He is thus entitled to an evidentiary hearing. I
respectfully dissent.
I.
In rejecting Conner’s Sixth Amendment claim, the state court
relied exclusively on McDonough Power Equipment, Inc. v. Green-
wood, 464 U.S. 548 (1984), without addressing the Supreme Court’s
Sixth Amendment cases on actual juror bias, such as Smith v. Phillips,
455 U.S. 209 (1982). See J.A. 451-58. Thus, by assuming that McDo-
nough provides the sole avenue of relief for cases like Conner’s, the
state court required Conner to prove that juror Knight deliberately lied
at voir dire in order to establish his Sixth Amendment claim under
Smith. J.A. 452. This was error. No less than five members of the
CONNER v. POLK 17
Supreme Court wrote or joined separate opinions in McDonough to
emphasize that McDonough did not so limit the applicability of Smith
and related cases. See McDonough, 464 U.S. at 556-57 (Blackmun,
J., concurring) ("I write separately to state that I understand the
Court’s holding not to foreclose the normal avenue of relief available
to a party who is asserting that he did not have the benefit of an
impartial jury. Thus, regardless of whether a juror is honest or dishon-
est, it remains within a trial court’s option . . . to order a post-trial
hearing at which the movant has the opportunity to demonstrate actual
bias . . . ."); id. at 558 (Brennan, J., concurring in the judgment). In
fact, McDonough was a civil case that did not even present the issue
of juror bias under the Sixth Amendment. See id. at 549, 555. In light
of this, numerous courts, including the Fourth Circuit, have likewise
held that McDonough does not provide the sole avenue of relief for
a criminal defendant alleging actual juror bias. See, e.g., Jones v.
Cooper, 311 F.3d 306, 310 (4th Cir. 2002) ("The McDonough test is
not the exclusive test for determining whether a new trial is war-
ranted: a showing that a juror was actually biased, regardless of
whether the juror was truthful or deceitful, can also entitle a defendant
to a new trial."); Fitzgerald v. Greene, 150 F.3d 357, 362-63 (4th Cir.
1998) (same); Zerka v. Green, 49 F.3d 1181, 1186 n.7 (6th Cir.
1995); Amirault v. Fair, 968 F.2d 1404, 1405-06 (1st Cir. 1992);
Cannon v. Lockhart, 850 F.2d 437, 440 (8th Cir. 1988). And the
Supreme Court has unanimously confirmed this interpretation by cit-
ing only Smith, and not McDonough, as the law governing a claim of
actual juror bias that, like Conner’s, involved an honest but mislead-
ing response by the juror at voir dire. See Michael Williams v. Taylor,
529 U.S. 420, 442 (2000).
Therefore, the state court relied on a rule of law that contradicts the
holdings of Smith and other juror-bias cases, which do not require a
defendant to prove that the biased juror deliberately lied at voir dire.
The state court’s decision was thus "contrary to" clearly established
law. See Terry Williams v. Taylor, 529 U.S. 362, (2000) ("A state-
court decision will certainly be contrary to our clearly established pre-
cedent if the state court applies a rule that contradicts the governing
law set forth in our cases.").
II.
Because the state court’s treatment of Conner’s juror-bias claim
resulted in a decision that was contrary to clearly established law, its
18 CONNER v. POLK
decision is not entitled to deference. See Rose v. Lee, 252 F.3d 676,
689-90 (4th Cir. 2001). But even if the state court had applied Smith
and related cases, as required, Conner would nonetheless be entitled
to relief, because the state court’s denial of his claim necessarily
involved an unreasonable application of those cases. See 28 U.S.C.
§ 2254(d)(1).
It is clearly established that the presence of a single biased juror in
a capital trial violates the Sixth Amendment, Morgan v. Illinois, 504
U.S. 719, 728 (1992), and that the remedy for credible allegations of
juror bias is a hearing at which to prove actual bias. See Smith, 455
U.S. at 215 (1982) ("This Court has long held that the remedy for
allegations of juror partiality is a hearing in which the defendant has
the opportunity to prove actual bias."); Remmer v. United States, 347
U.S. 227, 230 (1954) (reversing the district court’s denial without
hearing of the defendant’s motion for a new trial based on alleged
juror bias, and remanding for an evidentiary hearing). This clearly
established principle has been applied on innumerable occasions,
including on habeas review. See, e.g., Michael Williams, 529 U.S. at
440-42 ("[T]hese omissions [of information at voir dire] as a whole
disclose the need for an evidentiary hearing."); Fullwood v. Lee, 290
F.3d 663, 682 (4th Cir. 2002) (granting an evidentiary hearing to
determine whether a juror was improperly influenced by her husband
to vote for the death penalty).
Here, the circumstances that Conner alleges plainly establish the
risk of actual bias. He alleges that juror Knight engaged in confiden-
tial conversations about his case with investigators and a key trial wit-
ness, see J.A. 408, and that these conversations included victim-
impact evidence highly relevant to the sentencing trial in which
Knight sat as a juror. J.A. 422. These allegations raise the obvious
possibility that Knight relied on such extraneous evidence (and other
yet undisclosed communications) in her deliberation about whether to
sentence Conner to death. Such would constitute a quintessential
instance of actual juror bias.
Therefore, this is plainly not a case in which Conner’s allegations,
even if true, would be insufficient even to raise a credible inference
of bias. See Jones v. Cooper, 311 F.3d 306, 313 (4th Cir. 2002). On
the contrary, the risk of bias here was at least as great as that in Smith,
CONNER v. POLK 19
and comparable to or greater than the risk in virtually every other
Supreme Court case on actual bias. See Smith, 455 U.S. at 212 (juror
applied for a job at the prosecutor’s office during trial); Remmer, 347
U.S. at 228 (juror was exposed to a comment "in jest" that he could
profit from a favorable verdict to the defendant, and to a subsequent
FBI investigation of the comment); Chandler v. Florida, 449 U.S.
560, 575 (1981) (jurors were exposed to unusual publicity and a sen-
sational courtroom atmosphere); Michael Williams, 529 U.S. at 440
(juror had been married, fifteen years previously, to an investigator
and trial witness). Indeed, the risk of bias in Knight’s conversations
was as great, or greater than, the risk of bias in cases where the
Supreme Court has held that the circumstances compelled a finding
of implied bias. See Parker v. Gladden, 385 U.S. 363, 365 (1966) (per
curiam) (jurors were exposed to two offhand comments by a bailiff
asserting the defendant’s guilt); Turner v. Louisiana, 379 U.S. 466,
468 (1965) (two prosecution witnesses served among the bailiffs in
charge of the sequestered jury, but without discussing the case); Leon-
ard v. United States, 378 U.S. 544, 544-45 (1964) (per curiam) (a
prior jury announced its guilty verdict in the presence of the jurors
who would try the defendant on a closely related crime).
The state seeks to distinguish Smith and like cases by arguing that
Conner’s counsel had notice of Knight’s involvement in the prior trial
and opportunity to strike her at voir dire. See Appellee’s Br. at 19, 22
("Conner’s trial counsel had full knowledge of the information Ms.
Knight possessed as a potential juror. It was incumbent on trial coun-
sel to probe deeper if desired or deemed necessary."). But such is an
unreasonable ground on which to distinguish Smith, because Knight’s
misleading replies at voir dire deprived counsel of notice of the exact
source of bias challenged here. See J.A. 245-46 ("THE COURT: And
have you heard this case discussed by any person who indicated direct
or firsthand knowledge of the facts about the case other than the wit-
nesses that you heard? MS. KNIGHT: No, sir."); J.A. 398, 403 (affi-
davits of defense counsel averring that Knight’s "answers during voir
dire indicated [to them] that she had no such direct contact with wit-
nesses"); cf. Michael Williams, 529 U.S. at 442 (providing an eviden-
tiary hearing where "[t]he trial record contains no evidence which
would have put a reasonable attorney on notice that [the juror’s] non-
response was a deliberate omission of material information"). By nev-
ertheless insisting that Conner’s claim fails because Knight’s answers
20 CONNER v. POLK
were honest but misleading, the state merely rehashes the state court’s
erroneous conclusion that McDonough provides Conner’s exclusive
avenue of relief. As shown above, it does not.
III.
Because the state court denied Conner a hearing on the issue of
Knight’s bias, J.A. 458, he has not "failed to develop" the relevant
facts in state court through lack of diligence. See 28 U.S.C.
§ 2254(e)(2); Michael Williams, 529 U.S. at 430. For the same reason,
Conner fulfills at least one of the six factors of Townsend v. Sain, 372
U.S. 293, 313 (1963) (requiring an evidentiary hearing when "the
material facts were not adequately developed at the state-court hear-
ing"). Therefore, Conner is entitled to an evidentiary hearing in the
district court to determine what was actually communicated to Knight
and whether it influenced her deliberations. If Conner can establish
both that the alleged communications included prejudicial informa-
tion not produced at trial, and that juror Knight (or her fellow jurors)
relied on such evidence to Conner’s detriment, I would grant him a
new sentencing hearing.
For these reasons, I dissent from the majority’s judgment.