Perkins v. Lee ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SAMMY CRYSTAL PERKINS, 
Petitioner-Appellant,
v.
 No. 02-25
R. C. LEE, 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-99-604-5-F-HC)
Argued: June 3, 2003
Decided: July 25, 2003
Before MICHAEL, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished opinion. Judge Traxler wrote the opinion,
in which Judge Michael and Judge King joined.
COUNSEL
ARGUED: Edwin Love West, III, EDWIN L. WEST, III, P.L.L.C.,
Wilmington, North Carolina; Kathryn L. VandenBerg, Hillsborough,
North Carolina, for Appellant. Steven Mark Arbogast, Special Deputy
Attorney General, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Roy Coo-
per, Attorney General of North Carolina, NORTH CAROLINA
2 PERKINS v. LEE
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-
lee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
TRAXLER, Circuit Judge:
Sammy Crystal Perkins was convicted by a North Carolina jury for
the capital murder and rape of LaSheena Renae "JoJo" Moore. Per-
kins was sentenced to death for the capital murder conviction and to
life imprisonment for the rape conviction. After unsuccessfully
appealing his convictions in state court on direct review and in state
habeas proceedings, Perkins filed a petition for writ of habeas corpus
in federal district court. See 28 U.S.C.A. § 2254 (West 1994 & Supp.
2003). The district court dismissed the petition and Perkins sought an
appeal in this court. Because at least one judge of the panel concluded
that Perkins had "made a substantial showing of the denial of a consti-
tutional right," 28 U.S.C.A. § 2253(c)(2) (West Supp. 2003), with
respect to each of his claims, we granted a certificate of appealability,
see 28 U.S.C.A. § 2253(c)(3) (West Supp. 2003). We now affirm.
I.
On April 19, 1992, at approximately 3:00 a.m., petitioner Perkins
raped seven-year-old JoJo Moore in her bed while he smothered her
to death with a pillow. The North Carolina Supreme Court described
the specific facts surrounding JoJo’s murder as follows:
On 18 April 1992 [Perkins] was living with his mother in
Greenville. After visiting with his family and drinking sev-
eral beers, [Perkins] went to the home of Theia Esther
Moore, a woman he had been dating for two months and had
known for ten or eleven years. Moore lived in the house
PERKINS v. LEE 3
with her two children and four grandchildren, one of whom
was the victim. Moore shared a room with two of her grand-
children, three-year-old Michael "Champ" Moore and the
victim, who slept together on a daybed.
After leaving the Moore house for a short time, [Perkins]
returned and drank more beer and smoked crack cocaine. At
approximately 3:00 a.m. on 19 April, [Perkins] entered
Moore’s bedroom, where she and her two grandchildren
were present. [Perkins] watched a pornographic video and
then tried to have sex with Moore, who was surprised that
he was in the room. Moore discovered a large butcher knife
under her pillow, and [Perkins] explained that he had used
it to open a can of beer.
Moore ordered [Perkins] out of the house. As she walked
him to the door, Champ rose from his bed and claimed that
[Perkins] had bitten his finger. After [Perkins] left, he called
Moore twice to insist that he had not bitten Champ. Moore
then went to sleep; when she awoke at around 9:00 a.m., she
observed that Champ’s finger was swollen. At approxi-
mately 11:30 a.m., while the family was preparing to go to
church for Easter services, Moore discovered that JoJo was
dead.
The evidence tended to show that sometime early that morn-
ing, [Perkins] had mounted the victim, held a pillow over
her face, and had sex with her. The medical examiner deter-
mined that the victim died of suffocation and estimated that
the victim’s mouth and nose were covered for a period of
between three to seven minutes before she became uncon-
scious.
[Perkins] testified that on the night and morning in question,
he had been drinking and smoking crack cocaine. He stated
that JoJo awoke while he was having sex with Moore. He
put a pillow over her face so that she would not see them.
He said that he administered CPR, which he thought was
successful in resuscitating her. He then went to the kitchen
for a beer, used a knife to open the can, and placed the knife
4 PERKINS v. LEE
by Moore’s bed. Sometime in the morning, he took Champ
to the bathroom. Champ stuck his finger in [Perkins’s]
mouth, and [Perkins] bit it. He said Moore threw him out of
the house after discovering the knife and the biting incident.
[Perkins], who was in a wheelchair by the time of trial,
explained that he suffers from a debilitative muscular dis-
ease called myasthenia gravis [which] precluded him from
having sexual intercourse in any position where he would
have to support himself with his arms. On cross-
examination [Perkins] admitted that he had a prior convic-
tion for attempted rape in 1981 and was released from
prison in 1986. He also had prior convictions for possession
with intent to sell and deliver heroin and cocaine in 1988
and 1989.
State v. Perkins, 481 S.E.2d 25, 28 (N.C. 1997). At the conclusion of
the guilt phase of the trial, the jury convicted Perkins of the first-
degree rape and first-degree murder of JoJo Moore under the theories
of premeditation and deliberation and felony murder.
A capital sentencing proceeding was then held pursuant to N.C.
Gen. Stat. § 15A-2000 (2001). At the conclusion of the sentencing
hearing, the jury found all three aggravating circumstances submitted
to them to be present: (1) Perkins had been previously convicted of
a felony involving the use or threat of violence; (2) Perkins commit-
ted the murder while engaged in the commission of or an attempt to
commit first-degree rape; and (3) the murder was especially heinous,
atrocious, or cruel. The jury found one statutory and five nonstatutory
mitigating circumstances, but concluded that the mitigating circum-
stances did not outweigh the aggravating circumstances, and unani-
mously returned a recommendation that Perkins be sentenced to death
for the murder conviction. See Perkins, 481 S.E.2d at 28. The death
sentence was imposed by the trial court for the first-degree murder,
along with a consecutive sentence of life imprisonment for the first-
degree rape conviction. See id. at 27.
On appeal, the North Carolina Supreme Court upheld Perkins’s
conviction and death sentence, see id. at 27-28, and the United States
Supreme Court denied Perkins’s petition for writ of certiorari, see
PERKINS v. LEE 5
Perkins v. North Carolina, 522 U.S. 837 (1997). Perkins then filed a
motion for appropriate relief ("MAR"), see N.C. Gen. Stat. § 15A-
1415 (2001), in Pitt County Superior Court in September 1998, which
was denied in June 1999. The North Carolina Supreme Court denied
review. See State v. Perkins, 545 S.E.2d 744 (2000).
Perkins filed his § 2254 petition for habeas relief in district court
in September 1999. The state filed an answer and motion for sum-
mary judgment in December 1999. In March 2000, however, Perkins
filed a motion for leave to conduct discovery into a claim that his trial
counsel had been ineffective in their presentation of mental health
evidence, a motion for leave to proceed ex parte in moving for expert
assistance, and an ex parte motion for funds to hire expert assistance
to pursue his ineffective assistance of counsel claim. The district court
denied Perkins’s motion for leave to proceed ex parte and for funds
for expert assistance, granted the state’s motion for summary judg-
ment, and dismissed Perkins’s petition for habeas relief. This appeal
followed.
II.
We begin with Perkins’s claim that his trial counsel were ineffec-
tive in their presentation of expert mental health testimony, depriving
him of his Sixth Amendment right to counsel. See Strickland v. Wash-
ington, 466 U.S. 668, 687 (1984).
During Perkins’s trial, Dr. Billy Royal, a forensic psychiatrist, tes-
tified as an expert for the defense. In addition to offering testimony
concerning Perkins’s myasthenia gravis condition, Dr. Royal offered
testimony concerning Perkins’s use of prescription drugs and their
accompanying side effects, and of Perkins’s reported abuse of alco-
hol, cocaine, and heroin. Among other things, Royal testified that Per-
kins was under the influence of a mental or emotional disturbance,
that his ability to conform his conduct to the requirements of the law
was impaired, and that his mental illness and drug use affected his
ability to plan and to carry out planned activities.
Before the state MAR court, Perkins first claimed that his trial
counsel were ineffective in failing to properly elicit evidence in sup-
port of his diminished capacity defense from Dr. Royal and in failing
6 PERKINS v. LEE
to properly rehabilitate Dr. Royal on redirect examination. To further
develop these claims, Perkins sought the appointment and assistance
of psychological, psychiatric, and neuro-psychological experts. The
state MAR court, however, denied the claim and the motion for expert
assistance. Although represented by new counsel, Perkins had not
pursued this claim in his direct appeal. Thus, the state MAR court
ruled that the claim was procedurally barred under N.C. Gen. Stat.
§ 15A-1419(a)(3) (2001), because Perkins could have raised it on
direct appeal and had failed to demonstrate good cause and actual
prejudice, or that a fundamental miscarriage of justice would result.
See N.C. Gen. Stat. § 15A-1419(b)(2001). The court also ruled that
the claim was without merit and that there was no need for an eviden-
tiary hearing. See N.C. Gen. Stat. § 15A-1420(c) (2001).
On federal habeas review, Perkins again raised the ineffective
assistance of counsel claim, alleging that trial counsel had failed to
prepare and present a coherent mental health defense based upon Per-
kins’s history of substance abuse, prescription drug use, and mental
illness. Perkins asserted that counsel’s preparation and presentation of
Dr. Royal’s testimony was ineffective and, further, that the state
court’s failure to provide him with expert assistance on collateral
review prevented him from developing other potential mental health
claims. The district court ruled that, as a result of the state MAR
court’s application of the procedural bar, Perkins had procedurally
defaulted federal habeas review of the merits of the claim as well.
It is well settled that a federal habeas court may not review consti-
tutional claims when a state court has declined to review them on the
merits "pursuant to an independent and adequate state procedural rule,
. . . unless the [petitioner] can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or
demonstrate that failure to consider the claims will result in a funda-
mental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722,
750 (1991); see also Harris v. Reed, 489 U.S. 255, 262 (1989). The
question of whether a particular state procedure is independent and
adequate is one of federal, not state, law. See Johnson v. Mississippi,
486 U.S. 578, 587 (1988). "A state rule is adequate if it is firmly
established and regularly or consistently applied by the state court,
and independent if it does not depend on a federal constitutional rul-
PERKINS v. LEE 7
ing." Brown v. Lee, 319 F.3d 162, 169 (4th Cir. 2003) (internal cita-
tions, quotation marks, and alteration omitted).
The basis for the district court’s determination that Perkins proce-
durally defaulted his ineffective assistance of counsel claim is N.C.
Gen. Stat. § 15A-1419(a)(3), which bars state court review of issues
raised in a motion for appropriate relief if "[u]pon a previous appeal
the defendant was in a position to adequately raise the ground or issue
. . . but did not do so." Ineffective assistance of counsel claims are not
excepted from § 15A-1419(a)(3)’s requirement that claims be raised
on direct appeal. Such "claims brought on direct review will be
decided on the merits when the cold record reveals that no further
investigation is required, i.e., claims that may be developed and
argued without such ancillary procedures as the appointment of inves-
tigators or an evidentiary hearing." State v. Fair, 557 S.E.2d 500, 524-
25 (N.C. 2001). Section 15A-1419 does not set forth "a general rule
that any claim not brought on direct appeal is forfeited on state collat-
eral review"; rather "the rule requires North Carolina courts to deter-
mine whether the particular claim at issue could have been brought
on direct review." Id. at 525 (quoting McCarver v. Lee, 221 F.3d 583,
589 (4th Cir. 2000)). If the reviewing court determines that the claim
"ha[s] been prematurely asserted on direct appeal, it shall dismiss
those claims without prejudice to the defendant’s right to reassert
them during a subsequent MAR proceeding." Id. at 525.1
As a general rule, § 15A-1419(a)(3) is considered to be an indepen-
dent and adequate state law ground for finding that a defendant has
procedurally defaulted federal habeas review. See Brown, 319 F.3d at
1
Recently, in United States v. Massaro, 123 S. Ct. 1690, 1693 (2003),
the Supreme Court held that defendants convicted of federal offenses
may always raise ineffective assistance of counsel claims in a collateral
proceeding under 28 U.S.C.A. § 2255 (West Supp. 2003), regardless of
whether the claim could have been raised on direct appeal. Although the
majority of the federal courts of appeals, including ours, already adhered
to this view, see id. at 1695, and "[a] growing majority of state courts
now follow [it]" as well, id., the Massaro holding is not based upon con-
stitutional mandates. In habeas proceedings brought under § 2254 to
challenge state court convictions, we are constrained to respect the con-
trary view of the North Carolina Supreme Court.
8 PERKINS v. LEE
170; Fisher v. Lee, 215 F.3d 438, 456 (4th Cir. 2000). However, if
the bar "ha[s] not been regularly and consistently applied by the state
court to a particular type of federal constitutional claim, [it] cannot be
considered an adequate state law ground barring federal court review
of the merits of that claim." Brown, 319 F.3d at 170; see Hathorn v.
Lovorn, 457 U.S. 255, 263 (1982) ("State courts may not avoid decid-
ing federal issues by invoking procedural rules that they do not apply
evenhandedly to all similar claims."). Without this exception, "state
courts would be able to engage in an arbitrary application of state pro-
cedural rules to thwart federal habeas review of constitutional issues
that the ‘adequacy’ requirement was designed to prevent." Brown,
319 F.3d at 170.
Perkins asserts that he did not procedurally default federal habeas
review of his ineffective assistance of counsel claim because § 15A-
1419(a)(3) has not been regularly and consistently applied by the
North Carolina courts to ineffective assistance of counsel claims chal-
lenging counsel’s presentation of expert mental health evidence. To
assist us in this inquiry, the parties have directed us to twenty-seven
state court cases. In four cases, the state raised the bar as a defense
to a merits determination and the bar was applied by the state MAR
court. In one case, the state raised the bar as a defense to a merits
determination, but the state MAR court refused to apply the bar after
concluding that the defendant had not been in a position to adequately
raise the claim on direct appeal and that he had shown good cause that
it be determined on the merits. In eight cases, the state did not raise
the bar as a defense to a merits determination. And, in the remainder
of the cases, there is no indication whether the bar was raised by the
state in an attempt to defeat a merits determination.2
Perkins asserts that, because the state courts reached the merits in
all but four of the twenty-seven cases, we should conclude that the
state MAR courts have not regularly and consistently applied the bar.
2
Perkins disputes the relevance of one case referenced by the state,
contending that it did not involve an ineffective assistance of counsel
claim, but rather a claim that the defendant had been deprived of his right
to present a meaningful defense. Because its inclusion is not determina-
tive of the outcome, we have no need to decide whether it is in fact pro-
cedurally analogous.
PERKINS v. LEE 9
We disagree. In determining whether § 15A-1419(a)(3) has been reg-
ularly and consistently applied by the North Carolina courts to cases
that are procedurally analogous to Perkins’s case, we can only con-
sider those cases in which the state actually raised the procedural bar
as a defense. See Meadows v. Legursky, 904 F.2d 903, 907 (4th Cir.
1990) (en banc). We can envision a number of circumstances in
which the state may intentionally decline to seek application of a pro-
cedural bar to an ineffective assistance of counsel claim, and we are
ill-prepared to second-guess such determinations made in cases that
are not actively before us. Cf. Hudson v. Hunt, 235 F.3d 892, 895 n.1
(4th Cir. 2000) (noting that although this court possesses the discre-
tion to decline to consider the merits of a defaulted claim notwith-
standing the state’s failure to raise it, "when a state intentionally has
declined to pursue the defense for strategic reasons, the court should
be circumspect in addressing the issue." (internal quotation marks
omitted)). And, unless the state advances the issue of procedural
default, we cannot say that the state court applied the bar in an incon-
sistent fashion because we have no reason to believe that the court
considered the bar in the first instance.
In sum, of the twenty-seven "procedurally analogous" cases
brought to our attention, we have been directed to a single case in
which the state MAR court refused to apply the procedural bar in a
case where the bar was raised by the state. However, "‘consistent or
regular application of a state rule of procedural default does not
require that the state court show an undeviating adherence to such
rule admitting of no exception so long as the rule has as a general rule
been applied in the vast majority of cases.’" Brown, 319 F.3d at 170(quoting Mueller v. Angelone, 181 F.3d 557, 584 (4th Cir. 1999)
(alteration omitted); see McCarver v. Lee, 221 F.3d 583, 589 (4th Cir.
2000) (holding that for the petitioner "to make a colorable showing
that section 15A-1419(a)(3) is not consistently and regularly applied
to ineffective assistance claims, he would need to cite a non-
negligible number of cases in which ineffective assistance claims
could have been brought on direct review but were not, and in which
the collateral review court nonetheless failed to bar the claim under
section 15A-1419(a)(3) because the claim was an ineffective assis-
tance claim.").3 We cannot say, based on this single deviation, that the
3
Our holding in Brown, which is relied upon by Perkins, does not com-
pel a different conclusion. In Brown, the parties directed us to ten cases
10 PERKINS v. LEE
North Carolina courts have failed to apply § 15A-1419(a)(3) in a reg-
ular and consistent manner to cases that are procedurally analogous
to Perkins’s case based upon this single deviation. And, because Per-
kins does not argue cause and prejudice, or that our failure to consider
the merits of this issue will result in a fundamental miscarriage of jus-
tice, we are precluded from reviewing the merits of Perkins’s claim.
Accordingly, we affirm the district court’s dismissal of Perkins’s
ineffective assistance of counsel claim on the grounds of procedural
default. We also affirm the district court’s denial of Perkins’s motion
for the appointment of mental health experts and for an evidentiary
hearing to explore the ineffectiveness claim.
III.
Perkins next asserts 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 one or more of the jurors
formed an opinion prematurely as to his guilt and as to the appropri-
ateness of a death sentence. Because this claim was rejected by the
North Carolina Supreme Court on the merits, habeas relief is only
warranted if Perkins can demonstrate that the adjudication of his
claim by the state court resulted in "a decision that was contrary to,
in which capital defendants sought habeas relief from their sentences of
death on the ground that their juries had received a unanimity instruction
for mitigating evidence which was allegedly indistinguishable from that
struck down by the Supreme Court in McKoy v. North Carolina, 494
U.S. 433 (1990). The procedurally analogous claims of four defendants
had been found to be procedurally barred under § 15A-1419(a) by a state
MAR court. Four other defendants had received a merits determination
of their unanimity claims by the state court, despite the fact that the state
had specifically raised the procedural bar as a defense. In one case, there
was no indication that the state MAR court was presented with an argu-
ment that the claim was procedurally barred, and in the final case it
appeared that the state court was not presented with the unanimity claim
at all. Based upon our review of these cases, we held that "Brown ha[d]
made a colorable showing that . . . the state MAR courts have not consis-
tently applied the bar to unanimity claims raised by defendants." Brown,
319 F.3d at 175.
PERKINS v. LEE 11
or involved an unreasonable application of, clearly established Fed-
eral law, as determined by the Supreme Court of the United States,"
or was "based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding." 28 U.S.C.A.
§ 2254(d).
The Sixth Amendment guarantees a criminal defendant the right to
an impartial jury. "[W]hen a habeas petitioner bases a juror bias claim
on improper communication between, or improper influence exerted
by, a nonjuror upon a juror . . ., he must first establish both that an
unauthorized contact was made and that it was of such a character as
to reasonably draw into question the integrity of the verdict." Full-
wood v. Lee, 290 F.3d 663, 678 (4th Cir. 2002) (internal quotation
marks omitted). "Private communications, possibly prejudicial,
between jurors and third persons . . . are absolutely forbidden, and
invalidate the verdict, at least unless their harmlessness is made to
appear." Gray v. Hutto, 648 F.2d 210, 211 (4th Cir. 1981) (internal
quotation marks omitted). Likewise, when a juror "form[s] and
express[es] a premature conviction of guilt," the court "must conclude
that the juror’s comment, indubitably improper, [is] presumptively
prejudicial, with the burden resting heavily upon the prosecution that
such communication . . . was harmless to the defendant." Id.During Perkins’s trial, Nancy Letchworth, a deputy clerk of the
superior court, notified the trial judge that she had learned from
another deputy clerk, Tammy Beachum, that an improper communi-
cation may have taken place between Juror Alecia Staton and her
babysitter, Ms. Wendy Clark. Apparently, Ms. Beachum and Juror
Staton both employed Ms. Clark as a babysitter. At some point at or
near the conclusion of Perkins’s case, Ms. Clark told Ms. Beachum
that Juror Staton had discussed the case with her and, in particular,
had told her that the jurors had already decided that Perkins was
guilty and that all but one had already decided that the death penalty
was warranted. Ms. Clark also claimed that Juror Staton had related
to her some details about pictures that had been shown during the trial
and about the testimony of a particular witness.
Upon being notified of the alleged conversation, the trial court con-
sulted with counsel for the state and the defendant and convened a
hearing out of the presence of the jury to investigate Ms. Clark’s
12 PERKINS v. LEE
statements. First, the trial judge and counsel for each party questioned
Ms. Letchworth to determine what she had been told by Ms.
Beachum, and then questioned Ms. Beachum to determine what she
had been told by Ms. Clark. Next, the trial judge brought Ms. Clark
in for questioning about her alleged conversation with Juror Staton.
Finally, the trial judge, after consulting with counsel and receiving
questions that they wished to be propounded to the jurors, individu-
ally questioned every juror. The jurors were questioned in order of
their juror number, and sequestered from those yet to be questioned
until the end of the court’s inquiry. Every juror specifically denied
having discussed or formed an opinion as to the guilt or innocence of
Perkins, denied having expressed an opinion as to the guilt or inno-
cence of Perkins, and denied having formed or expressed an opinion
as to what punishment would be appropriate if Perkins was ultimately
found guilty. Every juror also denied that any improper communica-
tions had occurred in their presence and denied hearing any other
jurors express an opinion as to guilt or the appropriate punishment.
Juror Staton was questioned in turn. In addition to denying that she
had formed or expressed an opinion as to guilt or punishment, she
specifically denied telling Ms. Clark that the jurors had reached an
opinion as to guilt or telling Ms. Clark that all but one had decided
to impose the death sentence.
At the conclusion of the hearing, the trial judge found that a con-
versation had taken place between Juror Staton and her babysitter, the
exact contents of which he could not determine. However, the trial
judge also found that all fourteen jurors had, under oath, "denied hav-
ing any opinion as to the guilt or innocence of the defendant" and had
"not expressed an opinion as to the guilt or innocence of the defen-
dant." J.A. 467. The court also found that none of the jurors had
"formed or expressed an opinion as to what punishment should be
imposed in the case." J.A. 467. The trial judge found that there had
been no juror misconduct, denied Perkins’s motion for a mistrial,
denied Perkins’s motion to excuse Juror Staton for cause, and
resumed the trial.
On appeal, the North Carolina Supreme Court held that the trial
court "made findings of fact consistent with the evidence" and did not
abuse its discretion by "conclud[ing] that there had been no juror mis-
conduct." Perkins, 481 S.E.2d at 35; see State v. Bonney, 405 S.E.2d
PERKINS v. LEE 13
145, 152 (N.C. 1991) (noting that a trial court’s decision will not be
disturbed unless there is a clear showing that the court abused its dis-
cretion); cf. United States v. Gravely, 840 F.2d 1156, 1159 (4th Cir.
1988) (noting that trial courts are granted broad discretion in dealing
with possible jury misconduct). Accordingly, the state court rejected
Perkins’s claim of jury misconduct on the merits and affirmed the
trial court’s refusal to declare a mistrial or to excuse Juror Staton.
We cannot say that the state court’s adjudication of this claim
resulted in a decision that was contrary to or an unreasonable applica-
tion of clearly established law or that it resulted in a decision that was
based on an unreasonable determination of the facts in light of the
evidence presented to the trial court. Here, there was no contention or
evidence that Juror Staton was improperly influenced or otherwise
was made aware of extraneous information through her contact with
Ms. Clark. Rather, the allegation of juror misconduct stemmed from
Ms. Clark’s allegation that Juror Staton had related to her various
internal discussions of the jury concerning Perkins’s trial and, in par-
ticular, discussions which reflected that the jurors had prematurely
discussed and formed opinions as to Perkins’s guilt and appropriate
sentence. Juror Staton denied having discussed these matters with Ms.
Clark. She also denied having formed an opinion as to whether Per-
kins was guilty or what punishment she believed would be appropri-
ate, as did the other thirteen jurors. As noted by the North Carolina
Supreme Court, the trial court’s finding that there had been no
improper jury conduct was consistent with and appropriate under the
evidence presented.
For similar reasons, Perkins has also failed to establish that he is
entitled to an evidentiary hearing into the alleged juror misconduct.
A federal habeas court may not grant a hearing to a habeas petitioner
if the petitioner "failed to develop the factual basis of a claim in State
court" unless certain other requirements are met. 28 U.S.C.A.
§ 2254(e)(2) (West Supp. 2003). Because the state does not claim that
Perkins failed to develop the factual basis of his juror misconduct
claim, § 2254(e) is no bar to a federal evidentiary hearing. See Full-
wood, 290 F.3d at 681. But this does not end the inquiry. "[E]ven
though section 2254(e)(2) presents no bar to a hearing, an evidentiary
hearing is not automatic — the district court is permitted to hold a
hearing only if the petitioner alleges additional facts that, if true,
14 PERKINS v. LEE
would entitle him to relief." Id. (internal quotation marks omitted).
"Moreover, petitioner must establish one of the six factors set forth
in Townsend v. Sain, 372 U.S. 293, 312 (1963)" to obtain a hearing.
Id.4
In this case, the state trial court conducted a full and fair hearing,
with trial counsel’s input and participation, into the alleged juror mis-
conduct and concluded that there was none. On federal habeas review,
Perkins has pointed to no witnesses or available testimony or informa-
tion that was not elicited by the state court that would entitle him to
relief. And, as noted above, the state trial court’s finding of no juror
misconduct was supported by the evidence taken. Accordingly, the
district court properly concluded that Perkins was not entitled to a
federal evidentiary hearing to further explore the alleged juror mis-
conduct.
IV.
Perkins’s final claim on federal habeas review is that the trial court
violated his Sixth and Fourteenth Amendment rights to an impartial
jury by dismissing prospective juror William Jackson for cause based
upon Jackson’s inability to respond to a question about whether he
could impose the death penalty.
During death qualification of a jury, the trial court may exclude a
potential juror based upon his or her personal views on capital punish-
ment if "the juror’s views would prevent or substantially impair the
performance of his duties as a juror in accordance with his instruc-
4
The six factors set forth in Townsend 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.
Fullwood, 290 F.3d at 681 n.7 (quoting Townsend, 372 U.S. at 313).
PERKINS v. LEE 15
tions and his oath." Wainwright v. Witt, 469 U.S. 412, 424 (1985)
(internal quotation marks omitted). "[T]he question of juror bias is to
be resolved by the trial judge’s assessment of demeanor and credibil-
ity, and . . . such assessments are to be accorded a presumption of cor-
rectness under 28 U.S.C.A. § 2254(d)." Maynard v. Dixon, 943 F.2d
407, 415 (4th Cir. 1991). Juror bias need not be proved with "unmis-
takable clarity." Wainwright, 469 U.S. at 424. Rather, when juror
responses are less than clear, "the determination made by the trial
court, based on its eyeing the juror, is presumed to be consistent with
the applicable standard." Maynard, 943 F.2d at 415.
In this case, Jackson was questioned by the trial court as to
whether, in view of his "personal beliefs . . . about the death penalty,"
he "would be able or unable to vote for a recommendation of the
death penalty even though . . . satisfied beyond a reasonable doubt"
of the things required by law to impose it. J.A. 15. In response, Jack-
son stated that he did not "know whether [he] could vote on the death
penalty" and was "unable to respond" to the question. J.A. 16. The
North Carolina Supreme Court concluded that the trial judge, who
was in a position to hear "Jackson’s tone of voice and observe[ ] his
demeanor," did not err in excusing Jackson for cause. Perkins, 481
S.E.2d at 30.
Because we cannot say that the North Carolina Supreme Court’s
adjudication of this claim "resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Fed-
eral law, as determined by the Supreme Court of the United States"
or "resulted in a decision that was based on an unreasonable determi-
nation of the facts in light of the evidence presented in the State court
proceeding," 28 U.S.C.A. § 2254(d), we affirm the district court’s dis-
missal of this claim as well.
V.
For the foregoing reasons, we affirm the district court’s denial of
Perkins’s motion for leave to proceed ex parte and for funds for
expert assistance and dismissal of Perkins’s petition for writ of habeas
corpus.
AFFIRMED