Robinson v. Polk ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARCUS REYMOND ROBINSON, 
Petitioner-Appellant,
v.
 No. 05-1
MARVIN L. 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.
James C. Fox, Senior District Judge.
(CA-00-127-5-F-HC)
Argued: September 22, 2005
Decided: February 14, 2006
Before WILLIAMS, KING, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Williams wrote the majority
opinion, in which Judge Shedd joined. Judge King wrote a separate
opinion dissenting in part.
COUNSEL
ARGUED: Kevin Patrick Bradley, Durham, North Carolina; Geof-
frey Wuensch Hosford, HOSFORD & HOSFORD, P.C., Wilmington,
North Carolina, for Appellant. Valerie Blanche Spalding, Special
Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Roy
2 ROBINSON v. POLK
Cooper, Attorney General of North Carolina, William N. Farrell, Jr.,
Senior Deputy Attorney General, Raleigh, North Carolina, for Appel-
lee.
OPINION
WILLIAMS, Circuit Judge:
Marcus Reymond Robinson, a North Carolina death-row inmate,
appeals the district court’s denial of his habeas petition filed under 28
U.S.C.A. § 2254 (West 1994 & Supp. 2005). We granted a certificate
of appealability to consider two claims raised by Robinson: (1) that
the trial court’s jury instructions during the guilt phase of his trial vio-
lated the Eighth Amendment; and (2) that a juror’s recitation of a Bib-
lical passage during sentencing deliberations violated the Sixth
Amendment. Applying the deferential standard of review required by
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
we conclude that the North Carolina court’s decision denying Robin-
son relief on these claims was not an unreasonable application of
clearly established federal law. Accordingly, we deny Robinson’s
petition and his request for an evidentiary hearing on his Bible claim.
I.
The facts are set forth adequately in the order of the North Carolina
Superior Court (MAR court) denying Robinson’s motion for appro-
priate relief (MAR):
The State’s evidence at trial tended to show that on the
morning of 21 July 1991, seventeen year old Erik Tornblom
did not return home from Chi Chi’s restaurant, where he
was employed. Erik was a rising senior at Douglas Byrd
High School and worked at Chi Chi’s from appropriately
[sic] 6:00 pm until midnight. His body was discovered later
that day, having been shot in the face with a shotgun. A wit-
ness testified at trial that he observed a black male drive
Erik’s car to the location where it was later recovered, get
out of the vehicle and wipe off the steering wheel and door
ROBINSON v. POLK 3
handle. The black male identified, [sic] as Roderick Wil-
liams, was thereafter arrested and named [Robinson] as the
person involved with him in the murder of Erik Tornblom.
[Robinson] was thereafter taken into custody and properly
advised of his Miranda rights, which he waived. After ini-
tially denying any involvement in the murder, [Robinson]
admitted that he and Williams had watched Erik Tornblom
enter a store. While Tornblom was in the store, [Robinson]
pulled out a sawed-off shotgun, which had been concealed
in his clothes, and gave it to Williams. As the victim left the
store, [Robinson] and Williams asked for a ride. As soon as
they entered the car, Williams put the gun to the back of
Erik Tornblom’s neck and forced him to drive to a location
that [Robinson] and Williams ordered. In his confession,
[Robinson] stated that "[t]he boy kept begging and pleading
for us not to hurt him, because he didn’t have any money."
After ordering [Tornblom] out of the car, he was made to lie
down. According to [Robinson], Williams then shot [Torn-
blom] in the face with the shotgun. [Robinson] then took
[Tornblom]’s wallet and split the money with Williams.
[Robinson] led police to where he had hidden the shotgun
and also showed them where the spent shotgun shell was
ejected. Both the gun and the spent shell were recovered by
the police.
Other evidence tended to show, two days prior to the
murder, that [Robinson] told Williams’ aunt that "he was
going to burn him a whitey". [sic] On the morning of the
murder, [Robinson] obtained the shotgun from a friend, who
heard [Robinson] tell Williams that he wanted to rob a Quik
Stop or "do" a white boy. After the murder, [Robinson] told
a friend that he had robbed a guy the night before and shot
him in the head.
(J.A. at 386-388.) At the time of these events, Robinson had just
turned eighteen years old and only eleven days earlier had been
released from prison.
Robinson and Williams were indicted by a North Carolina jury on
August 5, 1991, and charged with one count of first-degree murder,
4 ROBINSON v. POLK
one count of first-degree kidnaping, one count of robbery with a dan-
gerous weapon, once count of possession of a weapon of mass
destruction, one count of felonious larceny, and one count of posses-
sion of a stolen vehicle. As Robinson admits,
[at voir dire,] the prosecutor ensured that every member of
the venire thoroughly revealed his or her religious prefer-
ences regarding . . . application of the death penalty. More-
over, each potential juror was required to unequivocally
state that their religious beliefs would not interfere with
their individual and collective duty to vote on the . . . sen-
tencing phase[ ].
(J.A. at 438.)
Robinson’s trial began on July 13, 1994. On the second day of trial,
Robinson pleaded guilty to all of the offenses except for the first-
degree murder charge. That charge was tried to the jury on two differ-
ent theories: felony murder and murder with malice, deliberation, and
premeditation (premeditated murder). The jury convicted Robinson,
by special verdict, of first-degree murder under each theory.1
During the sentencing phase of the trial, the jury heard evidence
relating to circumstances that both aggravated and mitigated the
extent of Robinson’s culpability in the crime. At the outset of its
charge to the jury, the trial court emphasized to them that "[i]t is abso-
lutely necessary that you understand and apply the law as I give it to
you and not as you think it is or might like it to be." (J.A. at 213.)
To guide the jury’s consideration of the evidence presented, the trial
court provided the jury with a form entitled "Issues and Recommen-
dation as to Punishment," which consisted of a written list of two pos-
sible aggravating circumstances and twenty possible mitigating
circumstances, and instructed the jury how to apply the law to each
of these circumstances. (J.A. at 215-247.) The jury completed the
form, finding both of the aggravating circumstances but only six of
1
In a separate trial, a jury found Williams not guilty of premeditated
murder but guilty of felony murder and robbery with a firearm. State v.
Williams, 478 S.E.2d 782, 783 (N.C. 1996).
ROBINSON v. POLK 5
2
the mitigating circumstances. The jury ultimately concluded that the
aggravating circumstances outweighed the mitigating circumstances
and unanimously recommended that Robinson be sentenced to death.3
Robinson’s conviction and sentence were affirmed on direct appeal
by a unanimous North Carolina Supreme Court. State v. Robinson,
463 S.E.2d 218 (N.C. 1995). The United States Supreme Court there-
after denied certiorari review. Robinson v. North Carolina, 517 U.S.
1197 (1996).
On November 1, 1996, Robinson filed his MAR. Following an evi-
dentiary hearing on some of his claims,4 the MAR court denied Rob-
inson relief on all of his claims. The North Carolina Supreme Court
denied discretionary review of the MAR court’s ruling. State v. Rob-
inson, 539 S.E.2d 646 (N.C. 1999).
On February 28, 2000, Robinson filed the instant § 2254 petition
in the United States District Court for the Eastern District of North
Carolina raising thirteen claims of constitutional error. The State
moved for summary judgment on Robinson’s petition, and on Sep-
tember 7, 2004, the district court denied Robinson’s request for an
evidentiary hearing and granted the State’s motion for summary judg-
ment. On February 28, 2005, the district court entered an order deny-
2
Specifically, the jury found as aggravating circumstances that the
murder was committed while Robinson was robbing Tornblom and that
the murder was "especially heinous, atrocious or cruel." (J.A. at 249.)
The jury found mitigating circumstances in Robinson’s lack of criminal
history, age, history of childhood abuse, childhood head injury, and
behavioral or mental problems. The jury unanimously found that the mit-
igating circumstances were insufficient to outweigh the aggravating cir-
cumstances and that the aggravating circumstances were sufficiently
substantial to warrant the death penalty.
3
It appears that Robinson was never sentenced for the charges to which
he pled guilty. State v. Robinson, 463 S.E.2d 218, 221 (N.C. 1995)
("Prayer for judgment was continued as to the charges to which defen-
dant had pled guilty, and defendant was tried for first-degree murder.").
4
As relevant to this appeal, the MAR court granted an evidentiary
hearing on Robinson’s Eighth Amendment claim, but denied a hearing
on his Sixth Amendment claim.
6 ROBINSON v. POLK
ing Robinson a certificate of appealability on all of his claims. We
granted Robinson’s timely petition for a certificate of appealability on
two issues: whether the MAR court erred in failing to grant him relief
on (1) his claim that his death sentence violated the Eighth Amend-
ment and (2) his claim that the presence of a Bible during jury delib-
erations violated the Sixth Amendment.
II.
We review de novo the district court’s decision to deny a § 2254
petition based on the record before the MAR court, applying the same
standards as the district court. Whittlesey v. Conroy, 301 F.3d 213,
216 (4th Cir. 2002). Pursuant to AEDPA, the scope of federal review
is highly constrained. We may grant a petition with respect to any
claim adjudicated on the merits in state court only if the state court
decision was either contrary to, or an unreasonable application of,
clearly established federal law as determined by the Supreme Court.
28 U.S.C.A. § 2254(d)(1).
A decision of a state court is contrary to clearly established federal
law "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 Supreme] Court has on a set of
materially indistinguishable facts." (Terry) Williams v. Taylor, 529
U.S. 362, 413 (2000). A state court adjudication is an unreasonable
application of federal law when the state court "correctly identifies
the governing legal rule [from the Supreme Court’s cases] but applies
it unreasonably to the facts of a particular . . . case," id. at 407-08, or
"applies a precedent in a context different from the one in which the
precedent was decided and one to which extension of the legal princi-
ple of the precedent is not reasonable [or] fails to apply the principle
of a precedent in a context where such failure is unreasonable," Green
v. French, 143 F.3d 865, 870 (4th Cir. 1998), overruled on other
grounds by (Terry) Williams, 529 U.S. 362; see also Oken v. Corco-
ran, 220 F.3d 259, 263 n.3 (4th Cir. 2000) (noting that "the [Supreme
Court in (Terry) Williams left] open the question of whether" Green’s
definition of the "unreasonable application" was correct). The state
court’s application of clearly established federal law must be "objec-
tively unreasonable," and "a federal habeas court may not issue the
writ simply because that court concludes in its independent judgment
ROBINSON v. POLK 7
that the relevant state-court decision applied clearly established fed-
eral law erroneously or incorrectly." (Terry) Williams, 529 U.S. at
411. The phrase "clearly established law" refers "to the holdings, as
opposed to the dicta, of [the Supreme] Court’s decisions as of the
time of the relevant state-court decision." Id. at 412. Robinson argues
that the MAR court’s decision on the Eighth and Sixth Amendment
issues was an unreasonable application of clearly established law.5
We examine these claims in turn.
A.
Robinson’s first argument is that his death sentence was imposed
in violation of his Eighth Amendment right as established by Enmund
v. Florida, 458 U.S. 782 (1982). In Enmund, the defendant was the
getaway driver in a robbery that resulted in death. Id. at 784. Based
solely on his participation in aiding and abetting the robbery, he was
convicted of first-degree murder and sentenced to death. Id. at 785.
The Supreme Court reversed his death sentence, holding that the
Eighth Amendment prohibits imposing the death penalty on a defen-
dant "who aids and abets a felony in the course of which a murder is
committed by others but who does not himself kill, attempt to kill, or
intend that a killing take place or that lethal force will be employed."
Id. at 797.
Robinson contends that under the trial court’s jury instructions, the
jury was not required to find either that he killed or intended to kill
Tornblom in order to convict him of first-degree murder and that, as
a result, his death sentence violates Enmund. The MAR court rejected
this argument on the merits, and we conclude that the MAR court’s
decision was not an unreasonable application of Enmund. In fact, the
trial court’s instructions required the jury to find both that Robinson
killed Tornblom and that he intended his death to occur.
As noted, Robinson was tried on theories of premeditated murder
and felony murder. Addressing premeditated murder first, the trial
court charged that
5
Robinson does not argue that the MAR court’s decision was contrary
to clearly established law.
8 ROBINSON v. POLK
the State must prove . . . that [Robinson] intentionally and
with malice killed [Tornblom] with a deadly weapon . . . .
that [Robinson’s] act was a proximate cause of [Torn-
blom’s] death . . . . that [Robinson] intended to kill [Torn-
blom] . . . . that [Robinson] acted after premeditation . . . .
[and] that [Robinson] acted with deliberation.
(J.A. at 115.) This charge clearly required the jury to find that Robin-
son killed Tornblom and intended his death to occur in order to con-
vict him for premeditated murder.
Robinson argues, however, that the trial court’s felony murder
charge, which followed, created an ambiguity in the premeditated
murder charge. After setting forth the elements of felony murder,6 the
trial court gave the following instruction:
Ladies and gentlemen of the jury, for a person to be guilty
of a crime, it is not necessary that he himself do all of the
acts necessary to constitute the crime. If two or more per-
sons act together with a common purpose to commit robbery
with a firearm and are actually or constructively present at
the time the crime is committed, each of them is held
responsible for the acts of the others done in the commission
of robbery with a firearm.
(J.A. at 118.) Robinson contends that this "acting-in-concert" instruc-
tion failed to differentiate between felony murder and premeditated
murder such that he could have been convicted of the latter even if
the jury believed that Williams killed Tornblom and that he (Robin-
son) lacked the requisite intent.
We disagree. The trial court’s felony murder and premeditated
murder charges were separate and distinct from one another, and the
6
The trial court listed the elements of felony murder as follows: "First,
that the defendant committed or attempted to commit robbery with a fire-
arm . . . . Second, that while committing or attempting to commit robbery
with a firearm the defendant killed the victim with a deadly weapon. And
third, that the defendant’s act was a proximate cause of the victim’s
death." (J.A. at 117-118.)
ROBINSON v. POLK 9
elements of each offense were clearly delineated. Moreover, by its
own terms the acting-in-concert charge did not apply to the premedi-
tated murder charge. Instead, by referring to the legal effect of the
joint commission of a "robbery with a firearm," (J.A. at 118), the
acting-in-concert charge was explicitly linked only to the felony mur-
der theory.
If this were not enough, immediately after giving the acting-in-
concert instruction, the trial court summarized the requirements for
both theories of murder:
So I charge that if you find from the evidence beyond a
reasonable doubt that on or about the alleged date the defen-
dant intentionally killed the victim with a deadly weapon
and that this proximately caused the victim’s death and that
the defendant intended to kill the victim and that he acted
with malice, after premeditation and with deliberation, it
would be your duty to return a verdict of guilty of first
degree murder on the basis of malice, premeditation, and
deliberation.
However, if you do not so find or have a reasonable doubt
as to one or more of these things, you would not return a
verdict of guilty of first degree murder on the basis of mal-
ice, premeditation, and deliberation.
Whether or not you find the defendant guilty of first
degree murder on the basis of malice, premeditation, and
deliberation, you will also consider whether he is guilty of
first degree murder under the first degree felony murder
rule.
So I charge that if you find from the evidence beyond a
reasonable doubt that on or about the alleged date the defen-
dant, acting either by himself or acting together with Roder-
ick Williams, had in his possession a firearm and took and
carried away property from the person or presence of a per-
son without his voluntary consent by endangering or threat-
ening another person’s life with the use or threatened use of
a firearm, the defendant knowing that he was not entitled to
10 ROBINSON v. POLK
take the property and intending to deprive him of its use per-
manently and while committing or attempting to commit
robbery with a firearm the defendant killed the victim and
the defendant’s act was a proximate cause of the victim’s
death, it would be your duty to return a verdict of guilty of
first degree murder under the felony murder rule.
(J.A. at 119-120 (emphases added).)
In this summation, the court reaffirmed that the acting-in-concert
instruction applied only to felony murder by charging that Robinson
could be found guilty of premeditated murder only if Robinson
"killed" and "intended to kill" Tornblom. (J.A. at 119.) Moreover, by
charging in the summation that the jury could convict Robinson of
felony murder if it found that he "act[ed] either by himself or act[ed]
together with [Williams]" to commit robbery with a firearm, the trial
court again expressly linked and limited the acting-in-concert instruc-
tion to the felony murder charge. (J.A. at 119.) The summation reaf-
firmed that the jury could find Robinson guilty of premeditated
murder only if it found that he killed Tornblom and intended his death
to occur. Because the trial court’s instruction required the jury to
make these findings, the MAR court did not unreasonably apply
Enmund in denying Robinson’s Eighth Amendment claim.7
B.
1.
Robinson’s second argument is based on two subparts: (1) that his
7
We also note the stark differences between this case and Enmund v.
Florida, 458 U.S. 782 (1982). In Enmund, the "record supported no more
than the inference that Enmund was . . . in the car by the side of the road
at the time of the killings, waiting to help the robbers escape." Id. at 788.
Such facts are a far cry from this case, where the evidence showed that
Robinson was the instigator of a kidnaping and robbery perpetrated at
gunpoint, told others of his intent to "burn" a "white boy," and the fol-
lowing day bragged of killing Tornblom. To equate Robinson with
Enmund, a getaway driver following a robbery that resulted in murder,
is specious.
ROBINSON v. POLK 11
death sentence was imposed in violation of his Sixth Amendment
right of confrontation because the Bible amounted to evidence against
him and (2) that his death sentence was imposed in violation of his
Sixth Amendment right to impartial sentencing deliberations because
the Bible reading was an improper influence upon the jury. To sup-
port these contentions in the MAR court, Robinson presented the affi-
davits of two law students that summarized their conversations with
two of the jurors in the case. Those affidavits state:
The [first] juror revealed that [a second] juror had asked
for a bailiff to bring in a bible during deliberation on sen-
tencing. He recalled that the bailiff provided a bible, and the
second juror read a passage concerning an "eye for an eye."
The one who requested the bible was citing to the scripture
passage to attempt to convince other jurors, including the
one we interviewed . . . that they should change their posi-
tion from one favoring a life sentence to one favoring a
death sentence. The bible passage was read to the other
jurors before the final vote for a death sentence . . . .
[A third] juror corroborated the first juror’s statement,
and confirmed the fact that the [second] juror had a bible
during deliberations on sentencing, however the third juror
could not recall whether the bailiff provided the bible, or
whether the [second] juror had brought it into the delibera-
tions. The third juror. . . remembered the [second] juror
quoting scriptures during sentencing, but did not remember
the specific passage quoted.
(J.A. at 283-84.)
Robinson also argued that he could produce four jurors who were
willing to testify to these facts at an evidentiary hearing. The MAR
court denied the Bible claim without an evidentiary hearing, stating
that "there is insufficient evidence to require an evidentiary hearing
on the issue, even taking the submitted materials in the light most
favorable to [Robinson]." (J.A. at 428.) The MAR court held "that the
alleged Bible reading, if it occurred, [was] not extraneous, prejudicial
information" as required under North Carolina law to permit the
12 ROBINSON v. POLK
impeachment of a jury verdict. (J.A. at 428 (internal quotation marks
omitted).)
Robinson conceded in his habeas petition that "the [MAR] court
denied [his Sixth Amendment] claim on the merits," (J.A. at 437), and
he does not now argue otherwise. We therefore subject this claim, as
we did his Eighth Amendment claim, to AEDPA’s deferential stan-
dard of review. See Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir. 2000)
(en banc) (holding that a state court decision denying petitioner post-
conviction relief "[on] the merits . . . must be reviewed under the def-
erential provisions of § 2254(d)(1)"). To satisfy this standard,
AEDPA "does not require citation of [Supreme Court] cases —
indeed, it does not even require awareness of [those] cases." Early v.
Packer, 537 U.S. 3, 8 (2000) (emphasis in original). "In assessing the
reasonableness of the state court’s application of federal law, [there-
fore,] the federal courts are to review the result that the state court
reached, not ‘whether [its decision] [was] well reasoned.’" Wilson v.
Ozmint, 352 F.3d 847, 855 (4th Cir. 2003) (quoting Bell, 236 F.3d at
159; Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998); and Hen-
non v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997))(alterations in origi-
nal and emphasis added).
In examining the merits of Robinson’s claim, we, like the MAR
court, will assume the factual allegations set forth in the law students’
affidavits are true. See Bacon v. Lee, 225 F.3d 470, 485 (4th Cir.
2000) (assuming on federal review the truth and admissibility of peti-
tioners factual allegations where the MAR court denied an evidentiary
hearing on the claim). These affidavits allege the following: (1) a
juror asked for, and the bailiff provided, a Bible during sentencing
deliberations; (2) the juror read an "eye for an eye" passage;8 (3) the
passage was read to the other jurors before a final vote on a death sen-
8
Robinson does not allege which "eye for an eye" passage was read.
The King James Version of the Bible provides several references to "eye
for an eye." The Old Testament contains three such passages: (1) "Eye
for eye, tooth for tooth, hand for hand, foot for foot," Exodus 21:24; (2)
"Breach for breach, eye for eye, tooth for tooth: as he hath caused a
blemish in a man, so shall it be done to him again," Leviticus 24:20; (3)
"And thine eye shall not pity; but life shall go for life, eye for eye, tooth
for tooth, hand for hand, foot for foot," Deuteronomy 19:21. But in the
New Testament’s Sermon on the Mount, Jesus said, "Ye have heard that
it hath been said, An eye for an eye, and a tooth for a tooth: But I say
unto you, that ye resist not evil: but whosoever shall smite thee on thy
right cheek, turn to him the other also." Matthew 5:38-39. We assume,
for the sake of argument, that the juror read from the Old Testament.
ROBINSON v. POLK 13
tence; and (4) the juror read the passage in an attempt to convince his
fellow jurors to vote for a death sentence.
The Sixth Amendment provides, in relevant part, that "the accused
shall enjoy the right to a . . . trial[ ] by an impartial jury . . . [and to]
be confronted with the witnesses against him." U.S. Const. amend VI.
The right to trial by an impartial jury "guarantees . . . a fair trial by
a panel of impartial, indifferent jurors." Irvin v. Dowd, 366 U.S. 717,
722 (1961). This right prohibits "any private communication, contact,
or tampering directly or indirectly, with a juror during trial about the
matter pending before the jury." Remmer v. United States, 347 U.S.
227, 229 (1954). The right of confrontation requires that the "jury’s
verdict must be based upon the evidence developed at the trial." Tur-
ner v. Louisiana, 379 U.S. 466, 472 (1965). In addition, it "necessar-
ily implies at the very least that the evidence developed against a
defendant shall come from the witness stand in a public courtroom
where there is full judicial protection of the defendant’s right[s]." Id.
at 472 (internal quotation marks omitted). These rights apply equally
to sentencing proceedings tried to a jury. See Morgan v. Illinois, 504
U.S. 719, 727-28 (1992).
Despite these venerable protections afforded to criminal defen-
dants, the Sixth Amendment does not require that all evidence intro-
duced by the defendant tending to impeach the jury’s verdict be
considered by the courts. See Tanner v. United States, 483 U.S. 107,
117 (1987). In fact, the common-law rule generally "prohibited the
admission of juror testimony to impeach a jury verdict." Id. at 117.
The Supreme Court explained the justification for this rule in McDon-
ald v. Pless, 238 U.S. 264 (1915), decided early last century:
[L]et it once be established that verdicts solemnly made and
publicly returned into court can be attacked and set aside on
the testimony of those who took part in their publication and
all verdicts could be, and many would be, followed by an
inquiry in the hope of discovering something which might
invalidate the finding. Jurors would be harassed and beset
by the defeated party in an effort to secure from them evi-
dence of facts which might establish misconduct sufficient
to set aside a verdict. If evidence thus secured could be thus
used, the result would be to make what was intended to be
14 ROBINSON v. POLK
a private deliberation, the constant subject of public investi-
gation; to the destruction of all frankness and freedom of
discussion and conference.
Id. at 267-68.9 This common-law rule has been codified in Fed. R.
Evid. 606(b) and in many states’ rules of evidence, including North
Carolina’s.10
9
McDonald v. Pless, 238 U.S. 264 (1915) was a civil case, but the
Supreme Court has cited its reasoning with approval in the criminal con-
text. See Tanner v. United States, 483 U.S. 107, 117 (1987).
10
Federal Rule of Evidence 606(b) provides:
(b) Inquiry into validity of verdict or indictment. Upon an
inquiry into the validity of a verdict or indictment, a juror may
not testify as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything
upon that or any other juror’s mind or emotions as influencing
the juror to assent to or dissent from the verdict or indictment or
concerning the juror’s mental processes in connection therewith,
except that a juror may testify on the question whether extrane-
ous prejudicial information was improperly brought to the jury’s
attention or whether any outside influence was improperly
brought to bear upon any juror. Nor may a juror’s affidavit or
evidence of any statement by the juror concerning a matter about
which the juror would be precluded from testifying be received
for these purposes.
North Carolina Rule of Evidence 606(b) is identical to its federal coun-
terpart. See N.C. Gen. Stat. § 8C-1, Rule 606(b) (2003). North Carolina
law also provides:
(a) Upon an inquiry into the validity of a verdict, no evidence
may be received to show the effect of any statement, conduct,
event or condition upon the mind of a juror or concerning the
mental processes by which the verdict was determined. . . .
(c) After the jury has dispersed, the testimony of a juror may be
received to impeach the verdict of the jury on which he served,
subject to the limitations in subsection (a), only when it con-
cerns:
(1) Matters not in evidence which came to the attention of
one or more jurors under circumstances which would violate
ROBINSON v. POLK 15
Like the common law, the Federal Rules of Evidence and the North
Carolina Rules of Evidence contain an exception to this general rule
when "extraneous prejudicial information" is improperly brought to
the jury’s attention or when an "outside influence [is] improperly
brought to bear upon any juror." Fed. R. Evid. 606(b); N.C. Gen. Stat.
§ 8C-1, Rule 606(b) (2003); see also Tanner, 483 U.S. at 117(describing exceptions to the common-law rule excluding juror testimo-
ny).11
These exceptions track the Sixth Amendment protections embodied
in the Confrontation and Impartial Jury Clauses. First, the exception
for extraneous prejudicial information allows the court to consider
juror allegations that the defendant’s rights to confrontation were vio-
lated. In Parker v. Gladden, 385 U.S. 363 (1966), for example, the
defense attorney, after speaking with jurors, prepared an affidavit
alleging that
a court bailiff assigned to shepherd the sequestered jury,
which sat for eight days, stated to one of the jurors in the
presence of others while the jury was out walking on a pub-
lic sidewalk: "Oh that wicked fellow [petitioner], he is
guilty"; and on another occasion said to another juror under
similar circumstances, "If there is anything wrong [in find-
ing petitioner guilty] the Supreme Court will correct it."
the defendant’s constitutional right to confront the witnesses
against him; or
(2) Bribery, intimidation, or attempted bribery or intimida-
tion of a juror.
N.C. Gen. Stat. § 15A-1240 (2003).
11
Even under these exceptions, however, no juror may testify to the
effect of either the information or an influence on the jury’s deliberative
process, but only that the information or influence came before the jury.
See Mattox v. United States, 146 U.S. 140, 149 (1892)("[A] juryman may
testify to any facts bearing upon the question of the existence of any
extraneous influence although not as to how far that influence operated
upon his mind."); N.C. Gen. Stat. § 15A-1240(a).
16 ROBINSON v. POLK
385 U.S. at 363-64. Despite the fact the affidavit was based on juror’s
testimony, the Supreme Court did not discuss whether the affidavit
was admissible. Instead, it simply accepted the evidence and con-
cluded that the bailiff’s statements were tantamount to testimonial
evidence, and, because they were not made on the witness stand at
trial, the defendant was denied his constitutional right of confronta-
tion. Id. at 364 ("We have followed the undeviating rule that the
rights of confrontation and cross-examination are among the funda-
mental requirements of a constitutionally fair trial." (internal quota-
tion marks and citations omitted)).
Similarly, in Turner v. Louisiana, 379 U.S. 466 (1965), two deputy
sheriffs who were key prosecution witnesses were also responsible for
the sequestration of the jury during the defendant’s trial. Id. at 467-
468. These deputies "ate with [the jury], conversed with them, and did
errands for them." Id. at 468. Without discussing the source of the
evidence used to impeach the jury’s verdict, the Court declared that
the Sixth Amendment’s right to a jury trial "necessarily implies at the
very least that the evidence developed against a defendant shall come
from the witness stand in a public courtroom where there is full judi-
cial protection of the defendant’s right[s]." Id. at 472-73 (internal
quotation marks omitted). The deputy sheriffs’ association with the
jury risked that the jurors would make their determinations about the
deputy sheriffs’ trustworthiness outside of the courtroom, thus elimi-
nating Turner’s ability to cross-examine the deputy sheriffs effec-
tively and tainting the jury’s ability to weigh the evidence neutrally.
Id. at 473. The Court concluded that "it would be blinking reality not
to recognize the extreme prejudice inherent in this continual associa-
tion throughout the trial between the jurors and these two key wit-
nesses for the prosecution." Id. at 473.
The exception to the exclusionary rule for outside influences, on
the other hand, protects a defendant’s right to an impartial jury. In
Remmer v. United States, 347 U.S. 227 (1954), for example, an
unnamed person attempted to bribe a juror. Id. at 228. Before the jury
returned a verdict, the juror reported the incident to the judge, who
informed the prosecutor, and the FBI was called in to investigate. Id.The defendant, however, was not informed of the incident until after
the trial. Id. The Supreme Court concluded that a hearing was
required to determine whether the bribe and the FBI’s investigation
ROBINSON v. POLK 17
involved "private communication, contact, or tampering . . . with a
juror," thereby exerting an outside influence on the jury’s verdict,
despite the fact the hearing would inevitably require the jurors to tes-
tify as to their exposure to the bribe or the FBI’s investigation. Id. at
229-230.12
In contrast to Parker, Turner, and Remmer, which involved exter-
nal influences upon a jury,13 is the line of Supreme Court cases
involving an internal influence.14 In Tanner v. United States, 483 U.S.
12Robinson argues that Burch v. Corcoran, 273 F.3d 577 (4th Cir.
2001) compels us to grant him relief on his improper-influence claim. In
Burch, we held, outside of AEDPA’s strictures, that a juror’s Bible read-
ing during sentencing deliberations was not, without more, an improper
influence on the jury. Id. at 591. We question whether this holding could
assist Robinson even on de novo review, but it assuredly provides no
support for Robinson’s argument that the MAR court unreasonably
applied clearly established federal law as determined by the Supreme
Court.
13
We use the term "external influence" as shorthand to refer to both
extraneous prejudicial information and outside influences.
14
Our good dissenting colleague argues that we "artificially split[ ]"
Parker v. Gladden, 385 U.S. 363 (1966), Turner v. Louisiana, 379 U.S.
466 (1965), and Remmer v. United States, 347 U.S. 227 (1954), into two
categories: cases that involved extraneous prejudicial information (Par-
ker and Turner) and cases that involved an outside influence (Remmer).
Post at 31. He seems to believe that each of these cases involved an out-
side influence and nothing more. As our discussion in the text clearly
reveals, however, Parker and Turner each involved the exposure of the
jury to extraneous prejudicial information. In Parker the information was
that the defendant was "wicked" and "guilty," 385 U.S. at 363, and in
Turner the information was knowledge about the deputy sheriffs’ credi-
bility gained while they were shepherding the jury. 379 U.S. at 472-73.
The dissent’s argument, moreover, is baffling given that our dissenting
colleague acknowledges that in Parker, "the [Supreme] Court referenced
[the] right to confrontation." Post at 32. Such a reference would have
been useless had that right not been implicated in the case.
While we conclude that Parker and Turner each involved extraneous
prejudicial information, we do not conclude, as the dissent seems to
believe, that Parker and Turner each involved only extraneous prejudi-
cial information. Our discussion in the text merely recognizes that Par-
18 ROBINSON v. POLK
107 (1987), for example, the defendant sought an evidentiary hearing
at which he proposed to examine jurors’ alleged drug and alcohol use
during the trial. Id. at 117. The Supreme Court refused to grant the
defendant relief because, unlike Parker, Turner, and Remmer, a hear-
ing would allow inquiry "into the internal processes of the jury." Id.
at 120. Although the Supreme Court has never provided a formula for
deciding whether a particular influence upon the jury was external or
internal, it did cite approvingly to lower courts holding that the dis-
tinction turns not on whether the influence occurs inside or outside
the jury room but is rather "based on the nature of the [influence]."
Id. at 117. In Tanner, the Supreme Court disagreed with the defen-
dant’s argument that the Sixth Amendment compelled the district
court to consider evidence of jurors’ intoxication, holding instead that
ker and Turner are illustrative of the extraneous prejudicial information
exception to the common-law rule of exclusion, but we nowhere con-
clude that Parker and Turner do not also involve outside influences.
Moreover, in protesting our description of Parker and Turner, the dissent
fails to recognize that Robinson’s Bible claim implicates two separate
and distinct Sixth Amendment protections: the right to an impartial jury
(i.e., a jury free of external influence) and the right to confront the wit-
nesses against him (i.e., a jury not presented with extraneous prejudicial
information).
In any event, the dissent claims that by failing to discuss the outside
influence elements of Parker and Turner, we "obscure[ ] the clear princi-
ple that emerges from [those cases]." Post at 31. Short of that simple
assertion, however, the dissent fails to demonstrate that the outside-
influence elements of Parker and Turner would alter our analysis in any
way. As both we and the dissent agree, Parker and Turner contain
respective holdings that the bailiff’s communications with jurors were an
outside influence, as was the deputy sheriffs’ contact with jurors. Post
at 32-34. We fail to see how these holdings add materially to Remmer’s
formulation of the outside-influence exception: the Sixth Amendment
prohibits "private communication, contact, or tampering . . . with a
juror." 347 U.S. at 229. Because Remmer’s rule encompasses the
outside-influence rule that Parker and Turner stand for, to analyze Rem-
mer is impliedly to analyze Parker and Turner. Any other conclusion
derives from an incomplete understanding of Remmer. The dissent’s
charge that we obscure the meaning of Parker, Turner, and Remmer is,
therefore, itself nothing more than smoke and mirrors.
ROBINSON v. POLK 19
other aspects of the trial process protect the defendant’s right to a jury
free of internal influences upon the jury:
The suitability of an individual for the responsibility of jury
service, of course, is examined during voir dire. Moreover,
during trial the jury is observable by the court, by counsel,
and by court personnel. Moreover, jurors are observable by
each other, and may report inappropriate juror behavior to
the court before they render a verdict.
Id. at 127 (internal citations omitted and emphasis in original).
Tanner thus establishes that the Sixth Amendment’s guarantees do
not require judicial consideration of juror allegations regarding influ-
ences internal to the deliberation process. Under clearly established
Supreme Court case law, an influence is not an internal one if it (1)
is extraneous prejudicial information; i.e., information that was not
admitted into evidence but nevertheless bears on a fact at issue in the
case,15 see Parker, 385 U.S. at 364; Turner, 379 U.S. at 473, or (2)
is an outside influence upon the partiality of the jury, such as "private
communication, contact, or tampering . . . with a juror," Remmer, 347
U.S. at 229. Robinson has cited, and our research has unearthed, no
Supreme Court case addressing whether allegations of Bible reading
fall into either of these categories.
15
The dissent suggests that the category of extraneous prejudicial infor-
mation need not "bear on a fact at issue in the case" to violate the Con-
frontation Clause. Post at 33 n.4. Although we do not have occasion to
define with any precision what the word "prejudicial" means in this con-
text, it must mean at least that the information bears on a fact at issue in
the case. Under any other view, the list of ingredients on the packs of
coffee provided for jurors would violate the Confrontation Clause
because it is "extraneous" to the evidence presented in the case and
because it is "information." Such a boundless interpretation of the Con-
frontation Clause cannot be correct.
Moreover, although the dissent references one statement by the bailiff
in Parker, post at 33 n.4, that did not bear on a fact at issue, it ignores
the bailiff’s second statement — that the defendant was guilty — that
plainly did bear on a fact at issue.
20 ROBINSON v. POLK
Although our answer could possibly be different on de novo
review, we are satisfied that the MAR court did not unreasonably
apply these principles in denying Robinson’s Bible-reading claim.
First, contrary to Robinson’s suggestion and unlike the bailiff’s state-
ments in Parker and deputy sheriffs’ association with the jury in Tur-
ner, it would have been reasonable for the MAR court to conclude
that the Bible had no bearing on any fact relevant to sentencing, and
was therefore not tantamount to "evidence" that was used against him
at sentencing. See Black’s Law Dictionary 595 (8th ed. 2004) (defin-
ing "evidence" as "something . . . that tends to prove or disprove the
existence of an alleged fact"). In the end, the jury concluded that the
balance of the aggravating and mitigating circumstances warranted
imposing the death penalty. Unlike the facts at issue in Parker and
Turner, no Biblical passage — including the ones we assume were
read — had any evidentiary relevance to the jury’s determination of
the existence of these aggravating and mitigating circumstances.16
Second, it would have been reasonable for the MAR court to con-
clude that the Bible is not analogous to a private communication, con-
tact, or tampering with a juror, and that the common-law rule against
allowing juror testimony applied. See Remmer, 347 U.S. at 229.
Unlike these occurrences, which impose pressure upon a juror apart
from the juror himself, the reading of Bible passages invites the lis-
tener to examine his or her own conscience from within. In this way,
the Bible is not an "external" influence. In addition, reading the Bible
is analogous to the situation where a juror quotes the Bible from
memory, which assuredly would not be considered an improper influ-
ence. Cf. Tanner, 483 U.S. at 124 (in holding that Fed. R. Evid.
606(b) does not violate the Sixth Amendment, noting that the Rule
does not "open[ ] verdicts up to challenge on the basis of what hap-
pened during the jury’s internal deliberations, for example, where a
juror alleges that the jury refused to follow the trial judge’s instruc-
tions or that some of the jurors did not take part in deliberations"
16
We note that the Ninth Circuit recently reached a similar conclusion
that the Bible is not "extrinsic, factual material" to a jury. See Fields v.
Brown, 431 F.3d 1186, 1208-09 (9th Cir. 2005). In Fields, the jury also
had considered an "eye for an eye" passage, among others. Id. The Ninth
Circuit concluded that these "Bible verses . . . [were] not, in fact, facts
at all." Id. at 1209.
ROBINSON v. POLK 21
(quoting S.Rep. No 93-1277, p. 13-14 (1974))); J.E.B. v. Alabama ex
rel. T.B., 511 U.S. 127, 149 (O’Connor, J., concurring) ("Jurors are
not expected to come into the jury box and leave behind all that their
human experience has taught them." (internal quotation marks omit-
ted)). We do not believe that the physical presence and reading of the
Bible in the jury room required the MAR court to arrive at a different
conclusion under clearly established Supreme Court case law. More-
over, like the alleged misconduct in Tanner, we believe that the MAR
court reasonably could have concluded that the safeguards of the trial
process — in particular, the facts that jurors’ religious views can be
examined at voir dire, as they were in this case, and that the defendant
can request a jury charge explaining to the jurors their duty to follow
the law, as was given in this case — provide an adequate protection
of a defendant’s right to be sentenced by a jury free of improper influ-
ences such that a post-verdict examination into Bible reading is
unnecessary.
To be sure, the line between an "external" influence and an "inter-
nal" influence is a fine one, and one that may even blur upon close
inspection. In a formalistic sense, the Bible itself is "external" to
jurors, as is a private communication, contact, or tampering insofar as
it is not a document physically within the jurors themselves. But then
so too were the drugs and alcohol allegedly ingested in Tanner "exter-
nal" in this sense of the word. In any event, formalistic analyses con-
flict with Tanner’s admonition that whether an influence is external
or internal is not determined by rigid concepts, but by analyzing the
"nature" of the influence. 483 U.S. at 117. The difficulty in locating
the line between Remmer and Tanner only confirms that the MAR
court’s rejection of Robinson’s Bible claim was not an unreasonable
application of clearly established law. See Mitchell v. Esparza, 124
S.Ct. 7, 11 (2003) ("A federal court may not overrule a state court for
simply holding a view different from its own, when the precedent
from [the Supreme] Court is, at best, ambiguous.").
The dissent believes that jurors can generally impeach their verdict
by testifying about any influence that had the "serious potential of
swaying the jury towards a sentence of death," Post at 28 (emphasis
added), with the single exception that jurors cannot testify to their
own physical or mental impairments because those influences only
22 ROBINSON v. POLK
"impair[ ] the juror’s . . . ability to function effectively." Post at 35.17
According to at least a century of Supreme Court jurisprudence, the
dissent has it backwards. As we have discussed, the "firmly estab-
lished" general rule is that juror testimony may not be used to
impeach a jury verdict. Tanner, 483 U.S. at 117. The only exception
to this rule is for external influence, as we have identified in Parker,
Turner, and Remmer. But lest this exception be viewed as swallowing
the rule, the Tanner Court reiterated that the general rule applies to
situations that do not fit within the exception for external influence as
identified by those cases. Tanner, 483 U.S. at 117 ("In situations that
did not fall into this exception for external influence, however, the
Court adhered to the common-law rule against admitting juror testi-
mony to impeach a verdict.").
The dissent characterizes Tanner as only "concern[ing] a phenome-
non . . . [of] influences that impair a juror’s mental or physical capac-
ity." Post at 31. Such is not the case. While Tanner is certainly
focused on mental and physical impairment, its focus is narrowly cir-
cumscribed only because those were the facts presented to the Court.
The legal rule of Tanner, however, is not so limited. By characteriz-
ing Tanner as related only to physical or mental impairments, the dis-
sent conflates the rule with the rule’s application.
The facts of McDonald, 238 U.S. at 264, and Hyde v. United
States, 225 U.S. 347 (1912) — cases that Tanner cites approvingly as
stating the general rule — illustrate this point. In McDonald, it was
17
Our dissenting colleague sees the need to posit his own definition of
an internal influence because he argues that ours — influences internal
to the deliberation process — is "vague and circular" and "finds no sup-
port in Tanner." Post at 34. The careful reader will observe, however,
that our definition is but a rephrasing of the definition given by the Court
in Tanner itself. 483 U.S. at 120 (noting that by seeking to introduce evi-
dence from jurors that other jurors were intoxicated, the defendant
sought an inquiry "into the internal processes of the jury"). Any vague-
ness or circularity that exists in the definition provided by the Court in
Tanner demonstrates that the line between external and internal influ-
ences is anything but clearly established. To be sure, the dissent’s rule
has the advantage of clarity over the one adopted by the Supreme Court
in Tanner. AEDPA’s "clearly established" standard requires, however,
that the rule be clearly established by the Supreme Court, not this court.
ROBINSON v. POLK 23
alleged that the jury neglected its duty to determine damages and
instead used an improper quotient method, in which the damages
were determined by adding each juror’s individual damage estimate
and dividing by the total number of jurors. 238 U.S. at 265-66.
Despite the obvious prejudice to the defendant, the Supreme Court
did not allow the jury to impeach its own verdict. Id. at 269. In Hyde,
the defendant alleged that the jury did not decide his guilt or inno-
cence but instead had made a bargain among themselves to convict
him in exchange for acquitting his fellow defendant. 225 U.S. at 347,
381-82. Even assuming the facts Hyde alleged were true, the Supreme
Court agreed that there should be no inquiry into them because they
involved "matters which essentially inhere in the verdict itself and
necessarily depend upon the testimony of the jurors, and can receive
no corroboration." 225 U.S. at 384. In these two cases, the jury’s
actions were clearly improper; yet the Court did not allow —- much
less require —- an inquiry into whether the defendant had been preju-
diced. The dissent’s purported rule that an "external influence" is one
that substantially sways the jurors against the defendant collapses in
view of these cases: surely nothing can be more biased against a
defendant than a jury in dereliction of its duty to decide his guilt or
innocence.
Furthermore, not only does the dissent’s rule have no basis in
Supreme Court precedent, it also ignores Tanner’s warning that the
"integrity of jury proceedings" is jeopardized by inquiries "into the
internal processes of the jury." 483 U.S. at 120. Under the dissent’s
definition of "external influence," the Sixth Amendment violation
does not arise simply by virtue of the Bible’s presence in the jury
room alone; according to the dissent’s own formulation, the violation
arises because the jury may have been swayed by "a divine command
to condemn a defendant to death," Post at 37. On the dissent’s view,
in other words, the problem must arise from the jurors’ hearing and
obeying the divine commands. Following this logic, the dissent would
allow Robinson a hearing even if the juror had merely recited from
memory the "eye for an eye" passage during deliberations because this
memorized recitation of divine commands "carries the serious poten-
tial of swaying the jury towards a sentence of death."18 Post at 28. As
18
For many jurors — including those who are not followers of the
Judeo-Christian faith — the "eye for an eye" passage is a "cultural pre-
cept." See Burch, 273 F.3d at 591 (internal quotation marks omitted). We
cannot expect jurors to leave these precepts at the courthouse door.
24 ROBINSON v. POLK
discussed, however, such an inquiry is clearly prohibited. The fact
that the bailiff provided the Bible to the juror does not alter our con-
clusion that it was not an external influence. Robinson does not allege
that the bailiff instructed the jury to consult the Bible, or, for that mat-
ter, that he did anything other than simply provide the Bible upon the
juror’s request. On these facts, the MAR court reasonably could have
concluded that the bailiff’s act of providing a Bible was nothing more
than an innocuous intervention into the jury’s deliberations. Cf. How-
ard v. Moore, 131 F.3d 399, 422 (4th Cir. 1997) (concluding that giv-
ing jurors scrap paper consisting of a prosecutor’s unused form letters
thanking former jurors for their service was nothing more than an "in-
nocuous intervention[ ]" (internal quotation marks omitted)). Indeed,
it is reasonable to expect that a juror who wants something during
deliberations — whether it is aspirin, a pen, or a Bible — will ask the
bailiff to obtain it for him. The MAR court reasonably could have
concluded that the bailiff’s actions in fulfilling the juror’s request did
not, without more, turn the Bible into an external influence.
Finally, in a statement that was obviously designed to excite the
passions to a greater degree than the intellect, the dissent argues that
our analysis "should be offensive to those who consider the Bible
sacred" because we conclude "that a divine command to condemn a
defendant to death carries less potential to influence a juror" than
would a private communication, contact, or tampering. Post at 37.
Surely the dissent, which does not cite a single sentence from our
opinion in support of this outlandish claim, must recognize that our
analysis is not based on a belief that the Bible has no ability to sway
a juror, but on a belief that precisely because the Bible occupies a
unique place in the moral lives of those who believe in it, its teachings
cannot blithely be lumped together with a private communication,
contact, or tampering with a juror without clear guidance from the
Supreme Court. With all respect to our dissenting colleague, to argue
that our analysis says anything more is simply misleading.
For the reasons discussed above, Robinson "has failed to show that
the MAR court’s decision was . . . an unreasonable application of[ ]
clearly established Supreme Court precedent, because the decisions
on which he relies . . . are each distinguishable." Conner v. Polk, 407
F.3d 198, 208 (4th Cir. 2005). Therefore, Robinson is not entitled to
habeas relief on his Sixth Amendment claim.
ROBINSON v. POLK 25
2.
Robinson asks us to remand for an evidentiary hearing on his Sixth
Amendment claim. The State argues that Robinson may not receive
an evidentiary hearing because his MAR failed to comply with North
Carolina’s procedural law. We review the district court’s denial of an
evidentiary hearing for abuse of discretion. See Walker v. True, 401
F.3d 574, 581 (4th Cir. 2005).
A § 2254 petitioner may not receive an evidentiary hearing in the
district court if he "‘failed to develop the factual basis of a claim in
state court’" unless he shows the existence of several statutory factors
not relevant here.19 See Fullwood v. Lee, 290 F.3d 663, 681 (4th Cir.
2002) (quoting 28 U.S.C.A. § 2254(e)(2)). "A failure to develop the
factual basis of a claim is not established unless there is a lack of dili-
gence, or some greater fault attributable to the [petitioner] or the [peti-
tioner’s] counsel." (Michael) Williams v. Taylor, 529 U.S. 420, 432
(2000). The State argues that North Carolina law requires that a MAR
be accompanied by admissible evidence and that, by presenting only
hearsay affidavits to the MAR court despite the fact he could have
obtained affidavits directly from the jurors themselves, Robinson was
not diligent in pursuing his Sixth Amendment claim in the MAR
court.
We agree with the State that a petitioner who fails to comply with
state law in seeking an evidentiary hearing can be held to lack dili-
gence in pursuing his claim. Id. at 437 ("Diligence will require in the
usual case that the prisoner, at a minimum, seek an evidentiary hear-
ing in state court in the manner prescribed by state law."); see also
Smith v. Bowersox, 311 F.3d 915, 921 (8th Cir. 2002) ("[The petition-
er’s] failure to comply with Missouri law reflects a lack of dili-
gence."). It is unclear, however, that Robinson failed to comply with
state law by submitting hearsay affidavits in support of his MAR. To
19
The statutory factors are: (1) the claim relies on (a) a new rule of
constitutional law made retroactive to cases on collateral review, or (b)
facts that previously could not have been discovered, and (2) that the
facts establish a "convincing claim of innocence." (Michael) Williams v.
Taylor, 529 U.S. 420, 435 (2000); see also 28 U.S.C.A. § 2254(e)(2)
(listing statutory factors).
26 ROBINSON v. POLK
be sure, the law students’ affidavits are brimming with hearsay, and
North Carolina law provides that they would be inadmissible at an
evidentiary hearing in the MAR court. State v. Adcock, 310 S.E.2d
587, 608 (N.C. 1983). But whether inadmissible evidence can be used
at an evidentiary hearing is a different question from whether inad-
missible evidence can support a claim for entitlement to an evidenti-
ary hearing. The State has not cited, and we have not found, a single
North Carolina decision squarely holding that the MAR must be
accompanied by admissible evidence in order for the petitioner to
demonstrate entitlement to an evidentiary hearing. Furthermore, the
MAR court did not find that Robinson failed to comply with North
Carolina law by failing to submit admissible evidence. Cf. Dowthitt
v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000) (denying a federal evi-
dentiary hearing to a petitioner because the state habeas court had
concluded that the petitioner failed to properly develop the evidenti-
ary basis of his claim). Because it is not clear that North Carolina
rules require a MAR to be accompanied by admissible evidence and
because the MAR court did not make such an evidentiary ruling, we
cannot hold that Robinson’s failure to submit admissible evidence
demonstrates a lack of diligence before the MAR court. Cf. Bacon,
225 F.3d at 477 ("[I]t is not our role . . . to review the correctness of
the state MAR court’s application of its state-law procedural rules
. . . .").
The fact that Robinson is not barred from receiving an evidentiary
hearing in the district court, however, does not mean that he is auto-
matically entitled to one. See Fullwood, 290 F.3d at 681. Instead, a
district court may grant an evidentiary hearing in a § 2254 case only
where the petitioner has "allege[d] additional facts that, if true, would
entitle him to relief" and has "establish[ed] one of the six factors set
forth in Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d
770 (1963)."20 Fullwood, 290 F.3d at 681 (internal quotation marks
20
The six Townsend factors are as follows:
(1) the merits of the factual dispute were not resolved in the state
hearing; (2) the state factual determination is not fairly supported
by the record as a whole; (3) the fact-finding procedure
employed by the state court was not adequate to afford a full and
fair hearing; (4) there is a substantial allegation of newly discov-
ROBINSON v. POLK 27
omitted). Robinson’s § 2254 petition, however, alleged the same facts
that had been alleged before the MAR court. Because we conclude
that the MAR court did not unreasonably apply clearly established
federal law to those facts, Robinson has not alleged any "additional
facts that, if true, would entitle him to relief," and we therefore need
not consider whether any of the Townsend factors have been met.
Cardwell v. Green, 152 F.3d 331, 338 (4th Cir. 1998) (denying an
evidentiary hearing where the petitioner "failed to forecast any evi-
dence beyond that already contained in the record, or otherwise to
explain how his claim would be advanced by an evidentiary hearing"
(internal quotation marks omitted)), overruled on other grounds by
Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000); Bennett v. Angelone, 92
F.3d 1336, 1347 (4th Cir. 1996) (holding, pre-AEDPA, that petition-
er’s claim for an evidentiary hearing failed because he "add[ed] noth-
ing ‘additional’ to the factual mix already before the district court").
The district court therefore did not abuse its discretion in denying
Robinson an evidentiary hearing.
III.
Accordingly, we affirm the district court’s decision denying Robin-
son’s § 2254 petition and denying him an evidentiary hearing.
AFFIRMED
KING, Circuit Judge, dissenting in part:
This appeal presents an important Sixth Amendment issue, and I
write separately because it is being wrongly decided. The Sixth
Amendment entitles an accused to the sacrosanct right of a fair trial
before an impartial jury, a mandate that "goes to the fundamental
integrity of all that is embraced in the constitutional concept of trial
ered evidence; (5) the material facts were not adequately devel-
oped at the state-court hearing; or (6) for any reason it appears
that the state trier of fact did not afford the habeas applicant a
full and fair fact hearing.
Fullwood, 290 F.3d at 681 n.7 (internal quotation marks omitted).
28 ROBINSON v. POLK
by jury." Turner v. Louisiana, 379 U.S. 466, 472 (1965). And when
a jury’s deliberations have been contaminated by an improper exter-
nal influence — even if that influence relates to the Bible of
England’s first Stuart King — public confidence in our judicial sys-
tem is undermined and the jury’s verdict must not be enforced.
By its opinion today, the panel majority erroneously concludes that
Robinson is not even entitled to an evidentiary hearing on the
improper influence issue, because the state court’s ruling thereon was
not an unreasonable application of clearly established federal law as
determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1). The
majority reaches its conclusion, however, through its own misapplica-
tion of the relevant Supreme Court precedents, which obscures the
unmistakably clear line that divides those decisions. The decisions
distinguished by the majority — Parker v. Gladden, 385 U.S. 363(1966), Turner v. Louisiana, 379 U.S. 466 (1965), and Remmer v.
United States, 347 U.S. 227 (1954) — involved a single phenomenon:
an external influence upon a juror that carries the potential to sway
him against the defendant. On the other hand, the decision on which
the majority primarily relies — Tanner v. United States, 483 U.S. 107(1987) — relates only to an internal influence that impairs a juror’s
physical or mental ability to properly function.
The facts here — that the court bailiff provided a Bible to a delib-
erating juror, who then read aloud to his fellow deliberating jurors a
passage concerning the Biblical mandate of "an eye for an eye" —
plainly concern an external influence, i.e., one which carries the seri-
ous potential of swaying the jury towards a sentence of death. A con-
trary decision (deeming such conduct to be an internal influence only)
demeans the Bible and those who believe in it, and constitutes "an
unreasonable application of[ ] clearly established" Supreme Court
precedent. 28 U.S.C. § 2254(d)(1).
Robinson’s allegations thus satisfy the requirements of
§ 2254(d)(1), and he is entitled to an evidentiary hearing to prove
them. First, an external influence that has the potential to sway a juror
against the defendant must be deemed presumptively prejudicial.
Robinson has thus "allege[d] facts which, if proved, would entitle him
to relief." Townsend v. Sain, 372 U.S. 293, 312 (1963). Next, because
the state court did not find facts regarding the improper influence
ROBINSON v. POLK 29
issue, Robinson has plainly satisfied the Townsend factor that "the
material facts were not adequately developed at the state-court hear-
ing." Id. at 313. Finally, the district court committed an error of law
in ruling that the law students’ affidavits were insufficient to warrant
an evidentiary hearing, and it thus abused its discretion in that respect.
I would grant Robinson an evidentiary hearing on the improper
influence issue, and I write separately to dissent on that aspect of this
appeal.1
I.
Robinson’s factual allegations concerning the Bible provided to the
jurors (the "Bible claim") are contained in the law students’ affidavits,
which were presented to the state court and made a part of Robinson’s
habeas corpus petition. According to the affidavits — which we must
accept as true — a juror requested a Bible from the bailiff during the
jury’s deliberations on whether Robinson should be accorded the
death penalty. Upon receiving this unusual request, the bailiff pro-
vided a Bible to the juror, without either the approval or notification
of the court. The juror then proceeded to read aloud to other jurors
a passage concerning the Biblical mandate of "an eye for an eye," in
an effort to convince the jury to recommend a death sentence. Ulti-
mately, the jury recommended that Robinson be sentenced to death.
On January 4, 1999, the state court which ruled on Robinson’s
motion for appropriate relief (the "MAR court") concluded that the
foregoing allegations were insufficient to warrant an evidentiary hear-
ing because, even assuming their truth, the provision and use of the
Bible did not constitute "extraneous, prejudicial information" before
the jury. After the Supreme Court of North Carolina denied discre-
tionary review of the MAR court’s ruling, Robinson filed a § 2254
petition in the Eastern District of North Carolina asserting, inter alia,
the Bible claim. As relevant here, the district court denied Robinson’s
request for an evidentiary hearing on the Bible claim, deeming the
law students’ affidavits insufficient to warrant such a hearing. We
1
I concur in Part I of the panel majority’s opinion, which sets forth the
general facts underlying this appeal, and in Part II.A, the disposition of
Robinson’s Enmund claim.
30 ROBINSON v. POLK
thereafter granted Robinson a certificate of appealability on the Bible
claim.
The question before us today is whether Robinson is entitled to an
evidentiary hearing on the Bible claim. As the panel majority cor-
rectly observes, because Robinson was diligent in pursuing the Bible
claim in state court, § 2254(e)(2) does not govern our analysis.
Instead, Robinson must satisfy the requirements set forth in Townsend
v. Sain, 372 U.S. 293 (1963). Under Townsend, Robinson must first
"allege[ ] facts which, if proved, would entitle him to relief." Id. at
312. This mandate requires Robinson to demonstrate that the MAR
court’s ruling "was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law, as determined by the Supreme
Court of the United States," 28 U.S.C. § 2254(d)(1), and that the error
in the MAR court’s ruling had a "‘substantial and injurious effect or
influence in determining the jury’s verdict,’" Fullwood v. Lee, 290
F.3d 663, 679 (4th Cir. 2002) (quoting Brecht v. Abrahamson, 507
U.S. 619, 637 (1993)). Next, Robinson must establish one of the six
Townsend factors. See Townsend, 372 U.S. at 313.2 Even if Robinson
satisfies these requirements, however, we may vacate the district
court’s denial of an evidentiary hearing only if its ruling constituted
an abuse of discretion. See Conner v. Polk, 407 F.3d 198, 204 (4th
Cir. 2005).
A.
Pursuant to the foregoing, we must first assess whether the MAR
court’s ruling "involved an unreasonable application of[ ] clearly
2
The six Townsend factors are:
(1) the merits of the factual dispute were not resolved in the state
hearing; (2) the state factual determination is not fairly supported
by the record as a whole; (3) the fact-finding procedure
employed by the state court was not adequate to afford a full and
fair hearing; (4) there is a substantial allegation of newly discov-
ered evidence; (5) the material facts were not adequately devel-
oped at the state-court hearing; or (6) for any reason it appears
that the state trier of fact did not afford the habeas applicant a
full and fair fact hearing.
Townsend, 372 U.S. at 313.
ROBINSON v. POLK 31
established Federal law, as determined by the Supreme Court of the
United States." 28 U.S.C. § 2254(d)(1). As explained below, the dis-
tinction between external and internal jury influences has been clearly
delineated by the Supreme Court, and a decision that Robinson’s alle-
gations supporting the Bible claim implicate an internal influence —
rather than an external influence — is an unreasonable application of
that law.
The panel majority makes two fundamental mistakes in its applica-
tion of the relevant Supreme Court precedents. First, it obscures the
clear principle that emerges from Parker v. Gladden, 385 U.S. 363(1966), Turner v. Louisiana, 379 U.S. 466 (1965), and Remmer v.
United States, 347 U.S. 227 (1954), by artificially splitting those deci-
sions into two categories. Specifically, the panel majority interprets
Parker and Turner as involving "extraneous prejudicial information
[that] . . . bears on a fact at issue," which had been introduced to the
jury in contravention of the defendant’s confrontation rights. Ante at
19. It then construes Remmer as concerning "an outside influence
upon the partiality of the jury" that violated the defendant’s right to
an impartial jury. Id. As explained below, the majority’s distinction
is unsupported by those decisions, each of which (not merely Rem-
mer) involved an external influence that carried the potential to sway
the juror against the defendant.3
Second, the majority incorrectly defines the internal influences at
issue in Tanner v. United States, 483 U.S. 107 (1987), as "influences
internal to the deliberations process." Ante at 19. The multiple exam-
ples of internal influences provided by the Tanner Court, however,
concern a phenomenon much more concrete and distinct: influences
that impair a juror’s mental or physical capacity.
Given these errors — both of which obfuscate the Court’s clear
holdings in the Parker, Turner, Remmer, and Tanner decisions — it
is no surprise that the panel majority ultimately concludes that the line
3
To be sure, the panel majority concedes that "to analyze Remmer is
to impliedly analyze Parker and Turner." Ante at 17-18 n.14. That point,
however, is inconsistent with the majority’s analysis of those authorities,
which interprets and applies Parker and Turner as involving extraneous
information and Remmer as concerning an outside influence.
32 ROBINSON v. POLK
between external and internal jury influences "is a fine one, and one
that may even blur upon close inspection." Ante at 21. A fair reading
of those decisions, however, presents an unmistakably clear divide
between external and internal influences. And when those decisions
are properly applied, the Bible claim unquestionably relates to an
improper external jury influence.
1.
The first step in our analysis under § 2254(d)(1) is to identify the
relevant "clearly established Federal law." That phrase, of course, "re-
fers to the holdings, as opposed to the dicta, of [the Supreme] Court’s
decisions as of the time of the relevant state-court decision." See Wil-
liams v. Taylor, 529 U.S. 362, 412 (2000). As explained below,
although the panel majority correctly identifies Parker, Turner, Rem-
mer, and Tanner as the relevant precedents, it fails to recognize and
apply the Court’s clear holdings in those decisions.
In its Parker decision, the Supreme Court held that Parker’s Sixth
Amendment rights had been contravened when the "bailiff assigned
to shepherd the sequestered jury" remarked in the jury’s presence,
"‘Oh that wicked fellow [petitioner], he is guilty,’" and "‘If there is
anything wrong [in finding petitioner guilty] the Supreme Court will
correct it.’" 385 U.S. at 363-64. The panel majority characterizes Par-
ker solely as a decision in which the Court held that Parker’s confron-
tation rights were violated because the bailiff’s comments constituted
"extraneous prejudicial information [that] . . . bears on a fact at issue."
Ante at 19. This characterization, however, is unsupported by Par-
ker’s facts and rationale. Although the bailiff’s statement that Parker
was guilty could be construed as extraneous "evidence" that "bears on
a fact at issue," his remark that the Supreme Court would correct any
error in finding him guilty clearly had no evidentiary relevance.
Rather, the bailiff’s comment was simply an effort on his part to sway
the jury to find Parker guilty. The majority’s conclusion is also belied
by the Parker Court’s analysis. Although the Court referenced Par-
ker’s right to confrontation, it did so only after referring to his right
to an impartial jury. See Parker, 385 U.S. at 364. Furthermore, the
Court characterized the bailiff’s statements as unconstitutional "pri-
vate talk, tending to reach the jury by outside influence," not as extra-
neous evidence. Id. (internal quotation marks omitted). Finally, and
ROBINSON v. POLK 33
most importantly, the Supreme Court itself has characterized Parker
as a case involving external influences. See Tanner, 483 U.S. at 117.
Whereas Parker at least bore traces of an "extraneous prejudicial
information" case, the Turner decision, which the panel majority also
characterizes as such a case, solely concerned an external influence.
In Turner, the Court held that the defendant’s Sixth Amendment
rights were contravened where the sequestered jury was "placed in
[the] charge" of two deputy sheriffs who were also the "principal wit-
nesses for the prosecution." 379 U.S. at 467. In their role as the jury’s
caretakers, the deputies drove the jurors where they needed to go, "ate
with them, conversed with them, and did errands for them." Id. at 468.
Crucially, the constitutional problem was not with any information
that the deputy sheriffs had imparted to the jurors — indeed the Court
operated under the assumption that no such information-sharing had
occurred. See id. at 473. Rather, the problem was the "relationship"
between the deputy sheriffs and the jury, "one which could not but
foster the jurors’ confidence in those who were their official guard-
ians during the entire period of the trial." Id. at 474. The Court’s con-
cern was that, as a result of the jury’s dependence on the deputies
during the trial, their testimony against the defendant would carry
greater weight with the jury than it otherwise would. The relationship
thus constituted an external influence with the potential to sway the
jurors against the defendant, irrespective of any information that
might have been conveyed to the jurors by the deputies.4
4
Not only does the panel majority erroneously mischaracterize Parker
and Turner as solely concerning "extraneous prejudicial information that
bears on a fact at issue in the case," it creates from whole cloth the
requirement that such extraneous information "bear on a fact at issue in
the case." There is no such requirement in any of the Supreme Court
decisions discussed by the majority. The majority seeks to ground its
new requirement in Supreme Court precedent by equating evidentiary
relevance to prejudice, suggesting that only extraneous information rele-
vant to a fact at issue can prejudice a defendant. Ante at 19 n.15. This
suggestion is, put most simply, entirely without legal basis. To take an
example from Parker, the statement by the bailiff that "‘[i]f there is any-
thing wrong [in finding petitioner guilty] the Supreme court will correct
it," was plainly prejudicial and, just as plainly, had no evidentiary rele-
vance to an issue in the case. 384 U.S. at 363-64. Of significance, the
majority’s newly minted requirement — first appearing after its analysis
of Parker and Turner — provides the sole basis on which it distinguishes
those decisions.
34 ROBINSON v. POLK
The panel majority contrasts Parker and Turner with Remmer,
which concerned an effort to bribe a juror, and which the majority
correctly characterizes as involving an external influence. See 347
U.S. at 228-29. Yet, whether it was the bailiff’s remarks impugning
the defendant in Parker, the relationship of confidence between the
jurors and the deputy sheriffs in Turner, or the attempt to bribe the
juror in Remmer, the same concern animated the Court’s decisions:
that an external influence might sway the jurors against the defendant.
In contrast to the improper external influences on a jury exempli-
fied in Parker, Turner, and Remmer, internal jury influences are illus-
trated in Tanner. There, the Court held that the Sixth Amendment did
not require an evidentiary hearing at which jurors could testify that a
fellow juror was under the influence of alcohol and illegal drugs dur-
ing Tanner’s trial. See 483 U.S. at 126-27. In so ruling, the Court
expressly distinguished the external influences present in cases such
as Parker and Remmer from the internal influence at issue in Tanner.
See id. at 117. The Court explained that the distinction between an
external influence, on the one hand, and an internal influence, on the
other, depends on the "nature" of the influence, id., and it approvingly
observed that lower courts had treated influences affecting "the physi-
cal or mental [ ]competence of a juror" as internal influences, id. at
118. It also provided several examples of internal influences — in
addition to the intoxication at issue in that case — including psycho-
logical disorders, insanity, sickness, lack of sleep, hearing impair-
ment, and consumption of poorly prepared food, all of which
constitute a physical or mental impairment. See id. at 118-19, 122.
The panel majority draws from Tanner the following definition of
internal influences: those "internal to the deliberations process." Ante
at 19. Because the majority fails to elaborate, we are left to guess at
the meaning of this vague and circular definition. Whatever it means,
however, the majority’s definition finds no support in Tanner and
fails to encompass the numerous examples of internal influences pro-
vided by the Court in that decision. If by influences "internal to the
deliberations process" the panel majority means those that only affect
the deliberations process, its definition describes external influences
better than internal influences. The external influences recognized by
the Court — such as attempted bribery or improper association with
the prosecution’s witnesses — come from without but impact only the
ROBINSON v. POLK 35
juror’s perception of the defendant, an influence that focuses directly
on the final decision a jury must make. In contrast, internal influences
— such as intoxication, lack of sleep, and psychological disorders —
affect not only a juror’s ability to rationally and neutrally deliberate
on a defendant’s fate, but also a juror’s general ability to perceive,
process, and comprehend the world around him. Perhaps the majority,
by the phrase "internal to the deliberations process," means to indicate
only those influences that originate in the deliberations process. If so,
neither internal nor external influences would fall within its defini-
tion. Whether the influence is an improper association with the prose-
cution’s witnesses, an attempted bribe, sickness, or intoxication, it
originates outside the jury room.
There is only one reasonable definition to draw from the Tanner
Court’s distinction between external and internal influences, its
instructions that the distinction turns on the "nature" of the influence,
and the numerous examples it provides of internal influences: If the
"nature" of the influence is that it impairs the juror’s physical or men-
tal ability to function effectively, it is an internal influence. Internal
influences thus stand in stark contrast to their external counterparts,
which come from without and carry the potential to bias the juror
against the defendant.
Importantly, this distinction between external and internal jury
influences was carefully drawn by the Supreme Court well before the
MAR court’s 1999 ruling. It therefore constitutes "clearly established
Federal law" within the meaning of § 2254(d)(1). See Williams, 529
U.S. at 412.
2.
We must next assess whether a decision that the facts alleged by
Robinson constitute an internal rather than an external influence is an
"unreasonable application" of the law clearly established in Parker,
Turner, Remmer, and Tanner. 28 U.S.C. § 2254(d)(1). A decision is
an "unreasonable application" of clearly established Supreme Court
precedent if the "state court identifies the correct governing legal
principle from th[e] Court’s decisions but unreasonably applies that
principle to the facts." Wiggins v. Smith, 530 U.S. 510, 520 (2003).
As we have recognized, a state court determination may be set aside
36 ROBINSON v. POLK
under this standard if the court "‘was unreasonable in refusing to
extend the governing legal principle to a context in which the princi-
ple should have controlled.’" Booth-El v. Nuth, 288 F.3d 571, 575
(4th Cir. 2002) (quoting Ramdass v. Angelone, 530 U.S. 156, 166
(2000) (plurality opinion)). The mandate of § 2254(d)(1), however, is
not satisfied by our independent determination that the state court’s
application was erroneous; we must also find such application to be
unreasonable. See Williams, 529 U.S. at 411. Nevertheless, where, as
here, the relevant principles are well-defined, the range of reasonable-
ness is narrower. See Yarborough v. Alvarado, 541 U.S. 652, 664
(2004) ("[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general the rule,
the more leeway courts have in reaching outcomes in case by case
determinations."). Given the clarity of the distinction between an
external and an internal influence on a jury, a decision that Robin-
son’s allegations constitute an internal influence — rather than an
external influence — easily satisfies the "clearly unreasonable" stan-
dard.
The panel majority concludes that the provision and reading of the
Bible is "not unlike" the internal influences described in Tanner. It
thus concludes that a decision that Robinson’s allegations constitute
an internal influence would not be unreasonable. In so ruling, the
majority fails to reference the Tanner Court’s admonition that internal
influences are those affecting the "physical or mental [ ]competence
of a juror." 483 U.S. at 118. And it declines to analogize to the
numerous examples of internal influences provided by the Court in
Tanner. See id. at 118-19, 122. Instead, the majority concludes —
without citation to Tanner — that reading from the Bible is "not
unlike" an internal influence because it "invites the listener to exam-
ine his or her own conscience from within," ante at 20, a conclusion
that finds no support in Tanner and bears no resemblance to any of
the examples of internal influences provided there. That the majority
fails to proceed by analogy to the examples provided in Tanner is not
surprising, for it would certainly be shocking for a court to compare
a Bible reading to intoxication, insanity, exhaustion, psychological
disorder, or food poisoning. See id. at 118-19, 122 (listing these and
others as examples of internal influences). Yet, in labeling the provi-
sion and reading of the Bible as an internal influence, the majority has
likened a Bible reading to such impairments. Not only is such a con-
ROBINSON v. POLK 37
clusion empirically false, it should be offensive to those who consider
the Bible to be sacred.
In regard to whether Robinson’s allegations constitute an external
influence, i.e., an influence that comes from without and carries the
potential to sway a juror against the defendant, the panel majority
suggests that neither the bailiff’s provision of the Bible nor the read-
ing of the Bible in the jury room could have influenced the jurors
against Robinson. Indeed, although the majority is hesitant to com-
pare Bible reading to intoxication or food poisoning, it is not troubled
by comparing the Bible to "aspirin [or] a pen." Ante at 24. In so
doing, the majority ignores the fact that the Bible is an authoritative
code of morality — and even law — to a sizable segment of our pop-
ulation. As in Turner, it would be "blinking reality" not to recognize
the profound influence that quotations from the Bible could carry in
the jury room. 379 U.S. at 473. Moreover, the specific passage read
aloud — those concerning the mandate of "an eye for an eye" — bear
directly on the severity of punishment to be imposed for a criminal
act and expressly require the death penalty as punishment for murder.
The majority therefore concludes — alarmingly — that a divine com-
mand to condemn a defendant to death carries less potential to influ-
ence a juror than the bailiff’s comments in Parker or the jurors’
relationship with the deputy sheriffs in Turner. I can neither make nor
accept that conclusion.
This case is made all the more egregious by the fact that the Bible
was provided to the juror by the trial court’s bailiff. The panel major-
ity characterizes the bailiff’s actions as an "innocuous intervention,"
ante at 24, but, as the Court explained in Parker, "[t]his overlooks the
fact that the official character of the bailiff — as an officer of the
court as well as the state — beyond question carries great weight with
a jury." 385 U.S. at 365. Furthermore, because of the bailiff’s capac-
ity as an officer of the court, it is likely that a juror would impute his
actions to the court itself, leaving an impression that the court
approved of the jury’s use of the Bible.
Taken together, the juror’s reading of the "an eye for an eye" pas-
sage, and the appearance that this reading was sanctioned by the trial
court, plainly constitute an external influence with the potential to
sway the jury against Robinson. The MAR court’s decision to the
38 ROBINSON v. POLK
contrary was therefore an "unreasonable application" of Supreme
Court precedent. 28 U.S.C. § 2254(d)(1).
B.
In order to "allege[ ] facts which, if proved, would entitle him to
relief," as required by Townsend, 372 U.S. at 312-13, Robinson must
also demonstrate that the error in the MAR court’s ruling had a "‘sub-
stantial and injurious effect or influence in determining the jury’s ver-
dict.’" Fullwood, 290 F.3d at 679 (quoting Brecht, 507 U.S. at 637).
Because Robinson’s allegations give rise to a rebuttable presumption
of prejudice, they also satisfy this requirement.
In Remmer, the Supreme Court announced that, "[i]n a criminal
case, any private communication, contact, or tampering, directly or
indirectly, with a juror during a trial . . . is, for obvious reasons,
deemed presumptively prejudicial." 347 U.S. at 229. We have had
occasion to apply Remmer and elaborate on the circumstances in
which its presumption of prejudice arises. In Stockton v. Virginia, we
held that the presumption of prejudice arose where the proprietor of
a restaurant at which the jury ate lunch during deliberations told
jurors that "they ought to fry the son of a bitch." 852 F.2d 740, 741,
744 (4th Cir. 1988); see also Fullwood, 290 F.3d at 681-82 (conclud-
ing that presumption of prejudice arose where defendant alleged that
juror’s husband had attempted to convince her to vote for death pen-
alty). We explained in Stockton that, in order to invoke the presump-
tion, a defendant must "establish both that an unauthorized contact
was made and that it was of such a character as to reasonably draw
into question the integrity of the verdict." 852 F.2d at 743. In so rul-
ing, we explicitly distinguished such outside contacts from Tanner-
like situations involving "juror impairment or predisposition." Id. at
744.
Robinson’s allegations plainly satisfy the two-step rule set forth in
Stockton. First, the bailiff’s furnishing of the Bible to the juror was
an unauthorized contact with the jury. Second, such contact "reason-
ably draw[s] into question the integrity" of the jury’s recommendation
that Robinson be sentenced to death. Stockton, 852 F.2d at 743. As
discussed above, the Bible is one of the most influential texts known
to our culture and represents, to many, God’s explicit commands. Fur-
ROBINSON v. POLK 39
thermore, as in Stockton, the passage read aloud in the jury room
"bore on the exact issue — whether to impose the death penalty —
that the jurors were deliberating at that time," and thus carried a seri-
ous potential for prejudice. Id. at 746; see also McNair v. Campbell,
416 F.3d 1291, 1307-08 (11th Cir. 2005) (concluding that introduc-
tion of Bible into jury room gives rise to presumption of prejudice).
The presumption of prejudice, of course, "is not one to be casually
invoked." Stockton, 852 F.2d at 745. The circumstances of this case,
however, more than justify its invocation.
C.
Finally, in order to demonstrate entitlement to an evidentiary hear-
ing, Robinson must establish one of the Townsend factors, and we
must find that the district court abused its discretion in denying him
such a hearing. Robinson satisfies each of these requirements. First,
in concluding that Robinson’s allegations did not entitle him to relief,
the MAR court denied Robinson a hearing on the Bible claim without
finding any facts. Thus Robinson satisfies at least the fifth Townsend
factor, that "the material facts were not adequately developed at the
state-court hearing." 372 U.S. at 313. Second, the district court com-
mitted an error of law in denying Robinson an evidentiary hearing on
the basis that the law students’ affidavits were insufficient to warrant
an evidentiary hearing, for it is settled that allegations alone are suffi-
cient to warrant a hearing where, taken as true, they entitle a peti-
tioner to relief. See id. at 312; Walker v. True, 399 F.3d 315, 327 (4th
Cir. 2005). By definition, such an error of law constitutes an abuse of
discretion. See United States v. Ebersole, 411 F.3d 517, 526 (4th Cir.
2005).
II.
Pursuant to the foregoing, Robinson is entitled to an evidentiary
hearing on the Bible claim, and I would vacate and remand for such
further proceedings as may be appropriate.
With respect, I most strenuously dissent.