William Barnes v. Carlton Joyner

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-5
WILLIAM LEROY BARNES,
Petitioner - Appellant,
v.
CARLTON JOYNER, Warden, Central Prison, Raleigh, North
Carolina,
Respondent – Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cv-00271-TDS-JEP)
Argued: January 29, 2014 Decided: May 5, 2014
Before AGEE, FLOYD, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Thacker wrote
the opinion, in which Judge Floyd joined. Judge Agee wrote a
dissenting opinion.
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellant. Jonathan
Porter Babb, Sr., NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee. ON BRIEF: George B. Currin,
CURRIN & CURRIN, PA, Raleigh, North Carolina, for Appellant.
Roy Cooper, Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.
THACKER, Circuit Judge:
Petitioner William Leroy Barnes (“Barnes”), an inmate
on North Carolina’s death-row, appeals the district court’s
denial of his petition for writ of habeas corpus against Carlton
Joyner, Warden of the Central Prison in Raleigh, North Carolina
(hereinafter, the “State”). In 1994, after a jury trial in
North Carolina state court, Barnes was convicted of first-degree
murder and sentenced to death. Immediately after the jury
returned its sentencing recommendation, Barnes alleged to the
state trial judge that one of the jurors discussed the death
penalty with her pastor the previous day. The trial court
denied Barnes’ request to inquire further into the matter. The
Supreme Court of North Carolina affirmed Barnes’ conviction and
sentence on direct appeal, concluding, among other things, that
Barnes had not proven that the alleged contact between the juror
and her pastor prejudiced Barnes or denied him the right to an
impartial jury.
In February 1999, Barnes sought state post-conviction
relief on various grounds by filing a Motion for Appropriate
Relief. In his Motion for Appropriate Relief, Barnes reasserted
his claim of juror misconduct and presented additional evidence
to demonstrate that a sitting juror improperly communicated with
her pastor about the death penalty during the sentencing phase
of Barnes’ trial and then relayed the information to other
2
jurors. Despite this additional information, the state post-
conviction court summarily denied Barnes’ claim without
conducting an evidentiary hearing, adopting the same analysis as
the Supreme Court of North Carolina.
After considering the various arguments raised in
Barnes’ federal habeas petition, the district court concluded
that the state court’s adjudication of Barnes’ juror misconduct
claim was not contrary to, or an unreasonable application of,
clearly established federal law. However, the district court
granted a certificate of appealability, pursuant to 28 U.S.C. §
2253(c)(2), on the issue of whether a juror’s contact with her
pastor violated Barnes’ Sixth Amendment right to a fair trial.
For the reasons that follow, we conclude that the
state post-conviction court’s failure to apply a presumption of
prejudice and failure to investigate Barnes’ juror misconduct
claim, which was based on an external influence on the jury, was
an unreasonable application of clearly established federal law.
Therefore, we reverse the district court’s judgment and remand
for an evidentiary hearing to determine whether the state
court’s failures had a substantial and injurious effect or
influence on the jury’s verdict.
3
I.
A.
On October 30, 1992, at around 12:30 a.m., police
officers from Salisbury, North Carolina, found B.P. and Ruby
Tutterow shot to death in their home. The house was ransacked,
and a number of the Tutterows’ belongings were missing. Later
that day, Barnes and his co-defendants, Frank Junior Chambers
and Robert Lewis Blakney, were arrested in connection with the
killings. Each defendant was subsequently indicted on two
counts of first-degree murder, two counts of robbery with a
dangerous weapon, and one count of first-degree burglary. After
a joint capital trial, the jury returned verdicts finding Barnes
and his co-defendants guilty of all charges, including first-
degree murder on the theory of premeditation and under the
felony murder rule. Barnes’ guilt is not at issue here. 1
This capital trial proceeded to the sentencing phase,
where the jury was charged with determining whether the crimes
committed by Barnes and his co-defendants warranted a sentence
of death or of life imprisonment. See N.C. Gen. Stat. § 15A-
2000. During the closing arguments of the sentencing phase, an
1
The Supreme Court of North Carolina summarized the facts
underlying Barnes’ conviction in its opinion denying Barnes
relief on direct appeal. See State v. Barnes, 481 S.E.2d 44,
51-53 (N.C. 1997), cert. denied, 523 U.S. 1024 (1998).
4
attorney representing co-defendant Chambers stated, in pertinent
part, as follows:
If you’re a true believer and you believe that Frank
Chambers will have a second judgment day, then we know
that all of us will too. All of us will stand in
judgment one day. And what words is it that a true
believer wants to hear? [“]Well done, my good and
faithful servant. You have done good things with your
life. You have done good deeds. Enter into the
Kingdom of Heaven.[”] Isn’t that what a true believer
wants to hear? Or does a true believer want to
explain to God, [“]yes, I did violate one of your
commandments. Yes, I know they are not the ten
suggestions. They are the ten commandments. I know
it says, Thou shalt not kill, but I did it because the
laws of man said I could.[”] You can never justify
violating a law of God by saying the laws of man
allowed it. If there is a higher God and a higher
law, I would say not.
To be placed in the predicament that the State has
asked you to place yourself in, is just that. To
explain when your soul is at stake. [“]Yes, I know
the three that I killed were three creatures of yours,
God. And that you made them in your likeness. I know
you love us all, but I killed them because the State
of North Carolina said I could.[”] Who wants to be
placed in that position? I hope none of us. And may
God have mercy on us all.
J.A. 1532-33. 2 The prosecution did not object at any point
during this argument.
The next day, the jury recommended that Barnes and
Chambers be sentenced to death for each murder and that Blakney
be sentenced to a mandatory term of life imprisonment for each
2
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
5
murder. After the jury returned its sentencing recommendations
and exited the courtroom, the following colloquy took place
between the court and defense counsel:
THE COURT: I take it everyone wants to enter some
Notice of Appeal. Is that correct?
MR. HARP [CHAMBERS’ COUNSEL]: The first thing we
would like to get in is that late yesterday afternoon
we were informed, after talking to alternate jurors,
that on Tuesday, before deliberation and before
instructions were given by the Court, one of the
jurors carried a Bible back into the jury room and
read to the other jurors from that. That it was also
discovered by us that one of the jurors, one of the
other jurors, called a member of the clergy, perhaps a
relative of hers, to ask her about a particular
question as to the death penalty. We also informed
you of it this morning at ten o’clock and that we need
to enter that on the record for purposes of preserving
that.
MR. FRITTS [BARNES’ COUNSEL]: Judge, for Mr. Barnes we
join in on that. We would for those reasons make a
Motion for Mistrial and we would request the Court to
inquire of the jurors, and I understand the Court’s
feelings on that, but that would be our request.
THE COURT: No evidence that anybody discussed the
particular facts of this case with anybody outside the
jury. Is that correct?
MR. HARP: No evidence that they did or did not as far
as the conversation with the minister is concerned.
THE COURT: No evidence that they did though. Is that
correct?
MR. HARP: No, sir.
THE COURT: All right. Well, I’m going to deny the
request to start questioning this jury about what may
or may not have taken place during their deliberations
of this trial.
6
J.A. 1601-03. Thereafter, the trial court denied the defense’s
post-sentence motions and rejected their request to conduct an
evidentiary hearing with respect to juror misconduct.
On March 10, 1994, the court sentenced Barnes and
Chambers to death, and Blakney to life imprisonment, for their
first-degree murder convictions. In addition, each defendant
was sentenced to two terms of forty years’ imprisonment for
armed robbery and one term of forty years’ imprisonment for
burglary. All sentences were to be served consecutively.
B.
Barnes appealed his conviction and sentence to the
Supreme Court of North Carolina on various grounds. Relevant
here is Barnes’ Sixth Amendment juror misconduct argument, which
was based on two alleged occurrences: first, that a “juror
called a minister to ask a question about the death penalty;”
and second, “that a juror had taken a Bible into the jury room
and read to the jury members from it before deliberations.”
State v. Barnes, 481 S.E.2d 44, 66 (N.C. 1997). Barnes argued
that “the trial court erred in failing to conduct an
investigation to determine what, if any, prejudice resulted from
the alleged events.” Id. at 67. The Supreme Court of North
Carolina disagreed, offering the following reasoning:
Assuming arguendo that defense counsel’s assertions
were accurate, there still was no assertion that the
juror’s reading from the Bible was accomplished in the
7
context of any discussion about the case itself or
that it involved extraneous influences as defined by
this Court. The issue, therefore, is whether the
trial court abused its discretion by failing to
inquire further into the alleged Bible-reading
incident when faced with the mere assertion that a
juror read the Bible aloud in the jury room prior to
the commencement of deliberations and prior to the
trial court’s instructions to the jury. As there is
no evidence that the alleged Bible reading was in any
way directed to the facts or governing law at issue in
the case, we cannot say that the trial court’s actions
were an abuse of discretion.
With respect to a juror’s alleged actions in calling a
clergy member, a similar analysis applies. The trial
court was faced with the mere unsubstantiated
allegation that a juror called a minister to ask a
question about the death penalty. Nothing in this
assertion involved “extraneous information” as
contemplated in [North Carolina Rule of Evidence]
606(b) or dealt with the fairness or impartiality of
the juror. There is no evidence that the content of
any such possible discussion prejudiced defendants or
that the juror gained access to improper or
prejudicial matters and considered them with regard to
this case. We cannot say under the particular
circumstances of this case that the trial court’s
actions in failing to probe further into the sanctity
of the jury room was an abuse of discretion. These
assignments of error are therefore without merit.
Id. at 68.
The Supreme Court of North Carolina likewise rejected
Barnes’ other contentions on direct appeal and affirmed his
conviction and sentence on February 10, 1997. Barnes, 481
S.E.2d at 51, 82. On March 23, 1998, the Supreme Court of the
United States denied Barnes’ petition for a writ of certiorari.
See Barnes v. North Carolina, 523 U.S. 1024 (1998).
8
C.
In February 1999, Barnes sought state post-conviction
relief on various grounds, filing a Motion for Appropriate
Relief (“MAR”) in Rowan County Superior Court (the “MAR Court”). 3
Barnes amended his MAR on January 24, 2001, and again on
September 4, 2002. 4 With respect to his claim of juror
misconduct, Barnes offered new information to the MAR Court to
try to demonstrate that Hollie Jordan (“Juror Jordan”), a
sitting juror, improperly communicated with her pastor about the
death penalty during the sentencing phase of Barnes’ trial.
This new information was presented through a number of exhibits
compiled by post-conviction counsel and their investigator,
which were based on post-verdict interviews with several of the
jurors. 5
3
A MAR is North Carolina’s procedural mechanism for state
post-conviction review. See N.C. Gen. Stat. §§ 15A-1401, 1411.
Although a “MAR is not identical to a habeas corpus petition,
. . . it provides an avenue to obtain [post-conviction] relief
from ‘errors committed in criminal trials.’” Conaway v. Polk,
453 F.3d 567, 576 n.8 (4th Cir. 2006) (quoting N.C. Gen. Stat. §
15A-1401).
4
For simplicity, we refer to the most current version as
the “MAR.”
5
For purposes of Barnes’ habeas petition, we assume the
truth of the factual allegations contained in his evidentiary
affidavits presented to the MAR Court. See Robinson v. Polk,
438 F.3d 350, 358 (4th Cir. 2006) (citing Bacon v. Lee, 225 F.3d
470, 485 (4th Cir. 2000)).
9
One of the exhibits attached to Barnes’ MAR was an
“Interview Summary” of a May 31, 1995 interview of Juror Jordan. 6
According to the Interview Summary, Juror Jordan was offended by
the closing argument in which co-defendant Chambers’ attorney
argued “that if jurors voted for the death penalty, they would
one day face God’s judgment for killing these defendants.” J.A.
1898. Although Juror Jordan “did not accept the attorney’s
argument,” she did notice “that another juror, a female, seemed
visibly upset” by it. Id. “To remedy the effect of the
argument, [Juror] Jordan brought a Bible from home into the jury
deliberation room” and read a passage to all the jurors, which
provided “that it is the duty of Christians to abide by the laws
of the state.” Id. The Interview Summary does not mention any
conversation with Juror Jordan’s pastor; it states that Juror
Jordan knew the Bible passage from church.
In addition to Juror Jordan’s Interview Summary,
Barnes’ MAR relied on a September 7, 2000 affidavit from Daniel
C. Williams (“Investigator Williams”), an investigator hired by
Barnes’ post-conviction counsel. In his affidavit, Investigator
Williams described interviews he conducted with three jurors
6
On June 1, 2000, Juror Jordan signed the bottom of the
Interview Summary, acknowledging, “[t]he summary is an accurate
description of what [she] said to Janine Crawley and Alexander
McCoy [members of Barnes’ direct appeal team] on May 31, 1995.”
J.A. 1898.
10
from Barnes’ trial, including Juror Jordan. According to
Investigator Williams, Juror Jordan explained, “she called her
pastor Tom Lomax” (“Pastor Lomax”) in response to a defense
attorney’s closing argument in which the attorney “suggested
that if jurors returned a death sentence, they, the jurors[,]
would one day face judgment for their actions.” J.A. 1892.
Juror Jordan stated that she “discussed the lawyer’s argument
with [Pastor] Lomax.” Id. During their conversation, “[Pastor]
Lomax told [Juror] Jordan about another biblical passage which
contradicted the passage relied upon by the defense attorney.”
Id. The next day, Juror Jordan brought her Bible into the jury
deliberation room and “read the passage suggested to her by
[Pastor] Lomax to all of the jurors.” Id.
Investigator Williams also interviewed jurors Leah
Weddington (“Juror Weddington”) and Ardith F. Peacock (“Juror
Peacock”), both of whom recalled that a member of the jury
brought a Bible into the jury room during sentencing
deliberations. Juror Weddington told Investigator Williams that
“[t]he person who brought in the Bible read a passage to a juror
who was having a hard time with the death penalty.” J.A. 1892-
93. Juror Peacock could not recall the details of the verse,
but she stated that it “dealt with life and death.” Id. at
1893. In a separate affidavit dated April 7, 2004, Juror
Peacock stated that a defense attorney’s remarks that jurors
11
would have to face God’s judgment if they imposed the death
penalty “made the jury furious.” Id. at 1900. In response to
this argument, one of the jurors read a passage from the Bible
to the other jurors. Juror Peacock did not recall which juror
brought the Bible or the exact verse that was read.
Investigator Williams also interviewed Pastor Lomax.
Pastor Lomax confirmed that Juror Jordan attends his church.
Moreover, although Pastor Lomax “could not recall the
conversation recounted by [Juror] Jordan,” he “stated that it
[was] possible that he did talk to her about the death penalty
while she was a juror, but he simply does not remember it.”
J.A. 1893.
Barnes’ MAR also attached an October 10, 2000
affidavit of Cynthia F. Adcock, an attorney with the North
Carolina Resource Center, which recounted interviews with
several jurors. According to Ms. Adcock, in a February 25, 1995
interview, Juror Weddington stated that “a juror named ‘Hollie’
brought a Bible into the jury room and read from it” and that
“Hollie also talked to her pastor during the case.” J.A. 1902.
Additionally, Ms. Adcock’s affidavit explains that in a separate
February 25, 1995 interview, Juror Wanda Allen (“Juror Allen”)
“recalled discussions about the fact that one of the jurors had
brought in a [B]ible and had talked with her pastor.” Id.
12
Relying on this new information, Barnes contended that
there was juror misconduct during the sentencing phase of his
trial. On March 19, 2007, the MAR Court held an evidentiary
hearing on some, but not all, of the claims raised in Barnes’
MAR. Importantly, the MAR Court did not conduct an evidentiary
hearing on Barnes’ juror misconduct claim.
Instead, the MAR Court “summarily denied” the juror
misconduct claim, holding that it was “procedurally barred and
without merit” under N.C. Gen. Stat. § 15A-1419(a)(2) because
the issue had previously been addressed and rejected by the
Supreme Court of North Carolina on direct appeal. 7 J.A. 1882-83.
The MAR Court further concluded that Barnes’ “argument that
there is now additional evidence which was not available at that
7
Pursuant to North Carolina law, a claim is “procedurally
barred” for purposes of MAR review if, among other things,
“[t]he ground or issue underlying the motion was previously
determined on the merits upon an appeal from the judgment or
upon a previous motion or proceeding in the courts of this State
or a federal court.” N.C. Gen. Stat. § 15A-1419(a)(2). As we
have recognized, “[a]lthough North Carolina courts refer to the
subsection 15A-1419(a)(2) bar as a ‘procedural bar’ for purposes
of reviewing a state court defendant’s MAR, it is not a state
procedural bar for purposes of federal habeas review.” Brown v.
Lee, 319 F.3d 162, 170 n.2 (4th Cir. 2003). Subsection (a)(2)
simply precludes MAR review -- not federal habeas review -- of a
claim that was previously raised by a state defendant and
rejected on the merits. Id. (explaining that subsection (a)(2)
“states a rule of res judicata and law of the case, precluding
re-litigation of the claim [through] the MAR proceeding”).
Therefore, we are not precluded from reviewing Barnes’ juror
misconduct claim.
13
time is without foundation or support, and [Barnes] seeks to
present anew the same contentions and inferences raised in his
initial appeal.” Id. at 1883. The court explained, “[t]he
allegedly new evidence adds nothing to the issue as it was
presented during [Barnes’] original appeal, and the allegations
are subject to the same analysis inherent in [the Supreme Court
of North Carolina’s] decision.” Id. Consequently, the MAR
Court entered an order on May 31, 2007, denying all claims
raised in Barnes’ MAR. On March 6, 2008, the Supreme Court of
North Carolina denied Barnes’ request for certiorari review.
See State v. Barnes, 660 S.E.2d 53 (N.C. 2008).
D.
On April 17, 2008, Barnes filed a Petition for Writ of
Habeas Corpus, pursuant to 28 U.S.C. § 2254, in the United
States District Court for the Middle District of North Carolina.
Just as he did in his MAR, Barnes raised a number of challenges
to his conviction and sentence, including juror misconduct
during his sentencing. On February 3, 2012, a United States
Magistrate Judge issued a report and recommendation,
recommending that all claims in the petition be denied. Barnes
v. Branker, 1:08-CV-271, 2012 WL 373353, at *39 (M.D.N.C. Feb.
3, 2012). On March 28, 2013, after concluding that the issues
raised by Barnes did not require a hearing, the district court
adopted the magistrate judge’s recommendation and issued an
14
opinion and order denying Barnes’ habeas petition. See Barnes
v. Lassiter, 1:08-CV-00271, 2013 WL 1314466, at *6-7, *20
(M.D.N.C. Mar. 28, 2013). The district court, however, granted
a certificate of appealability (“COA”), pursuant to 28 U.S.C.
§ 2253(c)(2), on the issue of whether a juror’s contact with her
pastor violated Barnes’ Sixth Amendment right to a fair trial.
Id. at *20. Barnes timely appealed. 8 We possess jurisdiction
pursuant to 28 U.S.C. § 2253.
II.
A.
“We review de novo the district court’s application of
the standards of 28 U.S.C. § 2254(d) to the findings and
conclusions of the MAR court.” McNeill v. Polk, 476 F.3d 206,
210 (4th Cir. 2007). In conducting our habeas review, we are
restricted to the question of whether a state prisoner “is in
custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254(a); see also Estelle v.
McGuire, 502 U.S. 62, 68 (1991). Moreover, because we are
engaging in collateral review of a state court adjudication, our
8
In his Opening Brief, Barnes requested an additional COA
from this Court, seeking consideration of a claim relating to a
Batson violation. See Batson v. Kentucky, 476 U.S. 79, 89
(1986) (prohibiting purposeful racial discrimination in jury
selection as a violation of the Equal Protection Clause). We
denied Barnes’ request for an additional COA and struck the
Batson claim from Barnes’ brief.
15
authority to grant relief is constrained by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). See DeCastro
v. Branker, 642 F.3d 442, 449 (4th Cir. 2011) (citing 28 U.S.C.
§ 2254(d)). Under AEDPA, we may grant habeas relief on a claim
that has been previously adjudicated “on the merits” 9 in state
court only if that adjudication “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1). 10
9
Barnes argued in the district court that the MAR Court
“failed to adjudicate the merits of [his] properly presented
claim and, thus, [the district court] must review [his claim] de
novo.” J.A. 2135 n.7. However, as the district court correctly
concluded, the MAR Court did in fact adjudicate the merits of
Barnes’ juror misconduct claim. Indeed, the MAR Court concluded
that the claim was “procedurally barred and without merit”
because it “was presented in [his] direct appeal . . . and was
directly addressed by the Supreme Court of North Carolina and
rejected by that court.” Id. at 1882-83. With respect to
Barnes’ new evidence, the MAR Court noted that it “add[ed]
nothing to the issue as it was presented during [Barnes’]
original appeal.” Id. at 1883. The MAR Court therefore
incorporated the “same analysis inherent in [the direct appeal]”
to the new evidence. Id. This was an adjudication on the
merits, though it was done summarily and by incorporating the
Supreme Court of North Carolina’s earlier analysis. See Bell v.
Jarvis, 236 F.3d 149, 163 (4th Cir. 2000) (en banc) (explaining
that even a summary adjudication, where “the state court fails
to articulate the rationale behind its ruling,” is an
adjudication on the merits for purposes of § 2254(d) deference).
10
We may also grant relief if the state court adjudication
“resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d)(2).
Subsection (d)(2) is not implicated in this appeal.
16
A state court’s decision 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 it reaches a different result than the
Supreme Court previously reached on a materially
indistinguishable set of facts. Williams v. Taylor, 529 U.S.
362, 413 (2000). Further, a state court’s decision is an
“unreasonable application” of clearly established federal law
when the state court “identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s case.”
Id. at 413. This means that to obtain relief, “a state prisoner
must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” White
v. Woodall, --- U.S. ---, No. 12-794, 2014 WL 1612424, at *4
(Apr. 23, 2014) (internal quotation marks omitted).
Under the unreasonable application clause of
§ 2254(d)(1), we look to whether the state court’s application
of law was “objectively unreasonable” and not simply whether the
state court applied the law incorrectly. Robinson v. Polk, 438
F.3d 350, 355 (4th Cir. 2006); see also Williams, 529 U.S. at
411 (explaining that “a federal habeas court may not issue the
17
writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly”). The
phrase “clearly established Federal law” means “the holdings, as
opposed to the dicta, of [the Supreme] Court’s decisions as of
the time of the relevant state-court decision.” Williams, 529
U.S. at 412.
B.
Even if we conclude that the state court’s
adjudication was contrary to, or an unreasonable application of,
clearly established federal law, our inquiry is not over. As we
have observed, “‘most constitutional errors can be harmless.’”
Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011) (quoting
Arizona v. Fulminante, 499 U.S. 279, 306 (1991)). Therefore,
“we are not permitted to grant habeas relief unless we are
convinced that the error 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)). This means that before a
federal court grants habeas relief, it must conclude that the
state court’s constitutional error “actually prejudiced” the
habeas petitioner. Bauberger, 632 F.3d at 104 (“Because of the
threat collateral attacks pose to ‘finality, comity, and
federalism,’ habeas petitioners may secure the writ only if the
18
error ‘actual[ly] prejudice[d]’ them.” (internal citations
omitted and alterations in original)). It is under this
framework that we examine Barnes’ claim of juror misconduct.
III.
Barnes argues that under the Sixth and Fourteenth
Amendments to the United States Constitution, he was deprived of
his right to an impartial jury at his capital sentencing because
at least one juror improperly communicated with her pastor and
relayed the information obtained from her pastor to the rest of
the jury. As a result, Barnes contends that the jury considered
extraneous information that the parties did not introduce at
trial. Relying on the Supreme Court’s decision in Remmer v.
United States, 347 U.S. 227 (1954), Barnes contends that the MAR
Court unreasonably applied clearly established federal law by
failing to attach a presumption of prejudice upon his showing of
an extraneous influence on the jury (the “Remmer presumption”).
In a related, but distinct argument, Barnes also contends that
the MAR Court unreasonably applied clearly established federal
law by failing to order the state trial court to hold a hearing
on juror misconduct, during which Barnes would be entitled to
the Remmer presumption, or, at a minimum, during which he would
have the opportunity to prove the prejudicial impact of the
extraneous influence.
19
The State counters by first arguing that there is no
clearly established federal law applicable to the situation
presented in the instant case. Thus, according to the State,
the MAR Court’s adjudication of Barnes’ juror misconduct claim
necessarily could not have been contrary to, or an unreasonable
application of, clearly established federal law. The State next
argues that even if there is clearly established federal law
applicable here, the MAR Court did not unreasonably apply such
law because the communication between the juror and her pastor
was not “about the matter pending before the jury.” See Remmer,
347 U.S. at 229 (emphasis supplied). According to the State,
this means Barnes was entitled to neither the Remmer
presumption, nor to a hearing on the issue of juror misconduct.
Finally, the State contends that the district court correctly
applied the AEDPA standard -- which requires proof of a
“substantial and injurious effect” on Barnes’ sentencing in
order to grant habeas relief -- and that, therefore, an
evidentiary hearing in the district court was not required.
In light of our review under AEDPA, as well as the
parties’ arguments summarized above, we must address the
following three issues: (1) whether there was clearly
established federal law governing Barnes’ juror misconduct claim
at the time of the MAR Court’s adjudication; (2) if so, whether
the MAR Court acted contrary to this clearly established law, or
20
applied it unreasonably, in failing to order a hearing or apply
a presumption of prejudice after Barnes presented allegations
that a juror communicated with her pastor about the death
penalty during Barnes’ sentencing; and (3) whether this error
had a substantial and injurious effect on Barnes’ sentencing.
See Hall v. Zenk, 692 F.3d 793, 799 (7th Cir. 2012) (employing
this three-step analysis on federal habeas review).
A.
Clearly Established Federal Law
The Sixth and Fourteenth Amendments to the United
States Constitution guarantee a criminal defendant the right to
a trial by an impartial jury. See U.S. Const. amend. VI; Irvin
v. Dowd, 366 U.S. 717, 722 (1961) (“In essence, the right to
jury trial guarantees to the criminally accused a fair trial by
a panel of impartial, indifferent jurors. The failure to accord
an accused a fair hearing violates even the minimal standards of
due process.” (internal quotation marks omitted)); Turner v.
Louisiana, 379 U.S. 466, 471-73 (1965). An impartial jury is
one that arrives at its verdict “based upon the evidence
developed at trial” and without external influences. Irvin, 366
U.S. at 722; see also Remmer, 347 U.S. at 229. “No right
touches more the heart of fairness in a trial,” Stockton v.
Virginia, 852 F.2d 740, 743 (4th Cir. 1988), and this right
applies equally to sentencing proceedings that are tried to a
21
jury, Robinson v. Polk, 438 F.3d 350, 359 (4th Cir. 2006)
(citing Morgan v. Illinois, 504 U.S. 719, 727-28 (1992)).
It is clearly established under Supreme Court
precedent that an external influence affecting a jury’s
deliberations violates a criminal defendant’s right to an
impartial jury. See, e.g., Parker v. Gladden, 385 U.S. 363,
364-66 (1966) (per curiam); Turner, 379 U.S. at 472-73; Remmer,
347 U.S. at 229. Especially troubling are private
communications between a juror and a third party. See Fullwood
v. Lee, 290 F.3d 663, 677 (4th Cir. 2002) (“The Supreme Court
has clearly stated that private communications between an
outside party and a juror raise Sixth Amendment concerns.”
(citing Parker, 385 U.S. at 364)). Indeed, it is well
established that “‘private talk, tending to reach the jury by
outside influence’ is constitutionally suspect.” Id. (quoting
Parker, 385 U.S. at 364). The Supreme Court recognized this as
early as 1892 when it declared that “[p]rivate communications,
possibly prejudicial, between jurors and third persons, or
witnesses, or the officer in charge, are absolutely forbidden,
and invalidate the verdict, at least unless their harmlessness
is made to appear.” Mattox v. United States, 146 U.S. 140, 150
(1892).
22
1.
In light of these significant constitutional concerns,
the Supreme Court in Remmer created a rebuttable presumption of
prejudice applying to communications or contact between a third
party and a juror concerning the matter pending before the jury.
Remmer, 347 U.S. at 229; see also Fullwood, 290 F.3d at 678
(explaining that the Supreme Court adopted the Remmer
presumption “[b]ecause the potential for mischief is so great
when a third party establishes private, extrajudicial contact
with a juror”).
In Remmer, a juror reported to the district judge that
an unnamed third party suggested to the juror that he could
profit by returning a defense verdict. 347 U.S. at 228. The
judge assigned an FBI agent to investigate the incident, and the
agent reported to the judge “that the statement to the juror was
made in jest.” Id. The agent’s report was reviewed by the
judge and the prosecutor but was not disclosed to defense
counsel. Id. After trial, the defendant became aware of the
incident and filed a motion for a new trial in which he
requested a hearing “to determine the circumstances surrounding
the incident and its effect on the jury.” Id. Without holding
the requested hearing, the district court denied the motion.
Id. at 229. The Ninth Circuit affirmed, holding that the
district court did not abuse its discretion in denying the
23
motion for a new trial because the defendant failed to show
prejudice. See Remmer v. United States, 205 F.2d 277, 291 (9th
Cir. 1953), vacated, 347 U.S. 227 (1954).
The defendant appealed to the Supreme Court, which
vacated the Ninth Circuit’s judgment and remanded the case for a
hearing. Remmer, 347 U.S. at 229-30. Specifically, the Court
stated, “any private communication, contact, or tampering,
directly or indirectly, with a juror during a trial about the
matter pending before the jury is, for obvious reasons, deemed
presumptively prejudicial.” Id. (emphasis supplied). “The
presumption is not conclusive, but the burden rests heavily upon
the Government to establish, after notice to and hearing of the
defendant, that such contact with the juror was harmless to the
defendant.” Id. (emphasis supplied) (citing Mattox, 146 U.S. at
148-50). 11 No such hearing was conducted by the district court
11
As we have observed, the rules of evidence “make it
difficult for either party to offer direct proof of the impact
that an improper contact may have had on the deliberations of
the jury.” Stockton, 852 F.2d at 743-44; see also Robinson, 438
F.3d at 359-60. This is because both the Federal Rules of
Evidence and the North Carolina Rules of Evidence prohibit a
juror from testifying about his or her mental processes
concerning the verdict. See Fed. R. Evid. 606(b); N.C. Gen.
Stat. § 8C-1, Rule 606(b). There is an exception, however, that
permits a juror to testify about “whether extraneous prejudicial
information was improperly brought to the jury’s attention or
whether any outside influence was improperly brought to bear on
any juror.” N.C. Gen. Stat. § 8C-1, Rule 606(b); see Fed. R.
Evid. 606(b).
24
in Remmer. As a result, the Supreme Court “[did] not know from
this record, nor [did] the petitioner know, what actually
transpired, or whether the incidents that may have occurred were
harmful or harmless.” Id. at 229.
The Court further noted that when allegations of juror
partiality come to light, “[t]he trial court should not decide
and take final action ex parte on information such as was
received in this case.” Remmer, 347 U.S. at 229-30. Instead,
the trial court “should determine the circumstances, the impact
thereof upon the juror, and whether or not it was prejudicial,
in a hearing with all interested parties permitted to
participate.” Id. at 230. The Supreme Court remanded the case
to the district court with instructions that it hold a hearing
to determine whether the incident was harmful to the defendant.
Id. The case eventually made its way back up to the Supreme
Court, at which time the Court explained that “[i]t was the
paucity of information relating to the entire situation coupled
with the presumption which attaches to the kind of facts alleged
by petitioner which, in [the Court’s] view, made manifest the
need for a full hearing.” Remmer v. United States (“Remmer
II”), 350 U.S. 377, 379–80 (1956).
Thus, Remmer clearly established not only a
presumption of prejudice, but also a defendant’s entitlement to
an evidentiary hearing, when the defendant presents a credible
25
allegation of communications or contact between a third party
and a juror concerning the matter pending before the jury. We
proceed to discuss each of these aspects of Remmer in turn.
a.
With respect to the presumption of prejudice, we have
recently observed, “there is a split among the circuits
regarding whether the Remmer presumption has survived intact
following” the Supreme Court’s decisions in Smith v. Phillips,
455 U.S. 209 (1982), and United States v. Olano, 507 U.S. 725
(1993). United States v. Lawson, 677 F.3d 629, 642 (4th Cir.
2012); see also id. at 643-44 (describing the circuit split). A
brief discussion of Phillips, Olano, and our subsequent case law
is instructive.
Phillips was a habeas corpus appeal in which a sitting
juror applied to the state district attorney’s office for a
position as an investigator during the pendency of a state court
trial. 455 U.S. at 212. The defendant learned of the juror’s
employment application after the jury found him guilty. As a
result, the defendant moved to set aside the verdict. Id. at
213. After conducting a hearing in which the trial court
received testimony from the juror and the prosecutor, the trial
court denied the defendant’s motion, finding that the juror was
not biased as a result of his employment application. Id. at
213-14. The Supreme Court concluded that the hearing was
26
sufficient, holding that due process requires the trial court to
conduct a hearing during which “the defendant has the
opportunity to prove actual bias.” Id. at 215 (emphasis
supplied). Although the Court spoke in terms of the defendant
proving bias rather than the government rebutting a presumption
of prejudice, we have nonetheless expressly held that Phillips
did not overturn the Remmer presumption. See Stockton, 852 F.2d
at 744 (distinguishing Phillips and concluding that in cases
where “the danger is not one of juror impairment or
predisposition, but rather the effect of an extraneous
communication upon the deliberative process of the jury,” the
Remmer presumption applies (emphasis supplied)).
Olano was a direct appeal in which a district court
permitted alternate jurors to be present during jury
deliberations in violation of Federal Rule of Criminal Procedure
24(c). 507 U.S. at 729-30. Because the defendants did not
object to the alternate jurors’ presence, the Supreme Court
considered whether the district court’s decision was plain error
under Federal Rule of Criminal Procedure 52(b). Id. at 730,
737. The Supreme Court cited Remmer and observed, “[t]here may
be cases where an intrusion should be presumed prejudicial, but
a presumption of prejudice as opposed to a specific analysis
does not change the ultimate inquiry: Did the intrusion affect
the jury’s deliberations and thereby its verdict?” Id. at 739
27
(internal citations omitted). We have recently “conclude[d]
that the Supreme Court’s discussion, of the ‘ultimate inquiry’
to be performed in cases involving ‘intrusions’ into a jury’s
deliberations, suggests that this inquiry may be framed either
as a rebuttable presumption or as a specific analysis of the
intrusion’s effect on the verdict.” Lawson, 677 F.3d at 642
(emphasis supplied). Nonetheless, we have applied the Remmer
presumption post-Olano, both on direct appeal and on § 2254
review. See id. (noting, on direct appeal, that “the Remmer
rebuttable presumption remains live and well in the Fourth
Circuit”); United States v. Blauvelt, 638 F.3d 281, 294-95 (4th
Cir. 2011) (direct appeal); Wolfe v. Johnson, 565 F.3d 140, 160-
62 (4th Cir. 2009) (28 U.S.C. § 2254 review); Fullwood, 290 F.3d
at 677-78 (28 U.S.C. § 2254 review). Wolfe and Fullwood were
post-AEDPA cases. Therefore, the Remmer presumption must have
been clearly established in order to be relevant under AEDPA.
See 28 U.S.C. § 2254(d).
Thus, by necessary implication, we have held that the
Remmer presumption is clearly established federal law as defined
by AEDPA even after the Supreme Court’s decisions in Phillips
and Olano. The State has not asked us to reconsider our
position, and we will therefore continue to deem the Remmer
presumption “clearly established federal law” here. See
Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (per curiam)
28
(explaining that “an appellate panel may, in accordance with its
usual law-of-the-circuit procedures, look to circuit precedent
to ascertain whether it has already held that the particular
point in issue is clearly established by Supreme Court
precedent”).
b.
We also recognize that Remmer established a separate,
but related requirement that a defendant be entitled to a
hearing when the defendant presents a credible allegation of
communications or contact between a third party and a juror
concerning the matter pending before the jury. See Haley v.
Blue Ridge Transfer Co., 802 F.2d 1532, 1535 (4th Cir. 1986)
(describing the Remmer presumption and explaining that “Remmer
also established the requirement of a post-trial evidentiary
hearing in which the prevailing party has the opportunity and
burden of rebutting the presumption of juror prejudice”); see
also United States v. Malloy, 758 F.2d 979, 982 (4th Cir. 1985)
(referring to the post-trial evidentiary hearing concerning
potential juror bias as a “required” hearing); Stouffer v.
Trammell, 738 F.3d 1205, 1214 (10th Cir. 2013) (explaining that
“[t]he trial court’s duty to conduct a Remmer hearing when
29
genuine concerns of improper juror contact arise is clearly
established by the Supreme Court”). 12
Post-Remmer Supreme Court case law has confirmed that
due process requires a hearing to alleviate concerns of juror
partiality. In Phillips, the Court explained that it “has long
held that the remedy for allegations of juror partiality is a
hearing in which the defendant has the opportunity to prove
actual bias.” 455 U.S. 209, 215 (1982); see also Porter v.
Illinois, 479 U.S. 898, 900 (1986) (Marshall, J., dissenting
from denial of writ of certiorari) (citing Remmer and Phillips
and explaining that “[w]hen a substantial question of juror bias
is presented to the trial court, . . . we have held that the
defendant is entitled to a hearing with all interested parties
permitted to participate” (internal quotation marks omitted)).
The requirement that a trial court conduct a hearing
to determine juror partiality is rooted in the Constitution:
Due process means a jury capable and willing to decide
the case solely on the evidence before it, and a trial
judge ever watchful to prevent prejudicial occurrences
and to determine the effect of such occurrences when
they happen. Such determinations may properly be made
12
See also United States v. Sandalis, 14 F. App’x 287, 289
(4th Cir. 2001) (unpublished per curiam) (citing Remmer and
explaining that “when a party makes a threshold showing that
improper external influences came to bear on the decision-making
process of a juror, an evidentiary hearing on juror bias not
only is allowed under Federal Rule of Evidence 606(b), but is
required”).
30
at a hearing like that ordered in Remmer and held in
this case.
Phillips, 455 U.S. at 217. Depending on when allegations of
improper juror communication or contact are brought to the trial
court’s attention, the hearing requirement may be satisfied
post-trial, like in Remmer, or during trial. See Ladd v. South
Carolina, 415 F.2d 870, 873 (4th Cir. 1969) (explaining that by
conducting an “adversary proceeding . . . in open court during
the state trial,” the trial judge did “precisely that taught by
Remmer”). Accordingly, it is clearly established federal law
for purposes of our review under AEDPA that a defendant is
entitled to a hearing when he or she presents a credible
allegation of communications or contact between a third party
and a juror concerning the matter pending before the jury. 13
13
Whether the Remmer presumption has been altered or
diminished by Philips and Olano, as described above, does not
affect our conclusion that the Remmer hearing requirement is
clearly established federal law. In Phillips, the Supreme Court
actually reinforced the hearing requirement as an independent
remedy, explaining that the “Court has long held that the remedy
for allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias.” Id. at
215. In Olano, because the defendants never requested a hearing
to determine whether the presence of alternate jurors during
deliberations influenced the verdict, the Supreme Court did not
need to decide “whether the courts of appeals have authority to
remand for Remmer-like hearings on plain-error review.” 507
U.S. at 740.
31
2.
Of course, not every allegation of an unauthorized
communication between a juror and a third party will trigger the
Remmer presumption and its corresponding hearing requirement.
See Haley, 802 F.3d at 1537 n.9 (recognizing that “certain kinds
of extrajudicial contacts may amount to nothing more than
innocuous interventions that simply could not justify a
presumption of prejudicial effect”). To be sure, “due process
does not require a new trial every time a juror has been placed
in a potentially compromising situation,” Phillips, 455 U.S. at
217, and the Remmer presumption “is not one to be casually
invoked,” Stockton, 852 F.2d at 745. Therefore, to be entitled
to the Remmer presumption and a Remmer hearing, a “defendant
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.” Id. at 743; Billings v.
Polk, 441 F.3d 238, 247 n.6 (4th Cir. 2006); see also Stouffer,
738 F.3d at 1214 (“When a trial court is apprised of the fact
that an extrinsic influence may have tainted the trial, the
proper remedy is a hearing to determine the circumstances of the
improper contact and the extent of the prejudice, if any, to the
defendant.”); Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir.
2005) (a Remmer hearing is required when “the extraneous
communication to the juror [is] of a character that creates a
32
reasonable suspicion that further inquiry is necessary to
determine whether the defendant was deprived of his right to an
impartial jury”).
Stated differently, the Remmer presumption and hearing
requirement are triggered after the party attacking the verdict
satisfies the “minimal standard” of showing that “extrajudicial
communications or contacts [between a juror and a third party]
were more than innocuous interventions.” United States v.
Cheek, 94 F.3d 136, 141 (4th Cir. 1996) (internal citations and
quotation marks omitted). In considering whether a particular
communication or contact between a juror and a third party is
more than an innocuous intervention, we refer back to the
“factors the Supreme Court deemed important” in Remmer itself.
Id. Those factors are: any private communication; any private
contact; any tampering; directly or indirectly with a juror
during trial; about the matter before the jury. See id. (citing
Remmer, 347 U.S. at 229).
Extrajudicial communications or contact with a juror
has been deemed to trigger Remmer in a variety of circumstances,
including: a juror being offered a bribe during trial and
subsequently being investigated by an FBI agent, Remmer, 347
U.S. at 229-30; a juror applying for a job at the prosecuting
attorney’s office during the trial, Phillips, 455 U.S. 216-18; a
local restaurant owner suggesting to jurors in a capital case
33
that “they ought to fry the son of a bitch,” Stockton, 852 F.2d
at 743; and allegations, if proven to be true during an
evidentiary hearing, that a juror’s husband pressured her
throughout the trial to vote for the death penalty, Fullwood,
290 F.3d 681-82. See also Parker, 385 U.S. at 363-64 (finding
habeas petitioner was deprived of his right to an impartial jury
where the bailiff said, in the presence of certain jurors, that
petitioner was a “wicked fellow” and that he was guilty, and
later said to another juror, “[i]f there is anything wrong [in
finding petitioner guilty] the Supreme Court will correct it”
(alteration in original)); Turner, 379 U.S. at 467-69, 474
(finding state defendant was denied the right to a trial by an
impartial jury where two deputy sheriffs, who served as key
prosecution witnesses, were responsible for the sequestration of
the jury during which time they “ate with [the jury], conversed
with them, and did errands for them,” even where there was no
evidence that the deputies discussed the case with the jurors).
Importantly, each of the illustrations above dealt
with external influences on jury deliberations. See Wolfe, 565
F.3d at 161 (“In its jury influence jurisprudence, the [Supreme]
Court has clearly distinguished between external jury
influences, on the one hand, and internal jury influences, on
the other.” (emphasis in original)). As we have recognized,
“[u]nder clearly established Supreme Court case law,” an
34
influence on a jury’s deliberative process is external if it is
either “extraneous prejudicial information; i.e., information
that was not admitted into evidence but nevertheless bears on a
fact at issue in the case,” or if it is “an outside influence
upon the partiality of the jury, such as private communication,
contact, or tampering . . . with a juror.” Robinson, 438 F.3d
at 363 (internal citations and quotation marks omitted). The
distinction between internal and external jury influences is
critical because, unlike external influences, which “necessitate
a thorough judicial inquiry, no such obligation is imposed with
regard to an internal jury influence.” Wolfe, 565 F.3d at 161
(emphasis supplied); see also Robinson (explaining that Tanner
v. United States, 438 U.S. 107 (1987) “establishes that the
Sixth Amendment’s guarantees do not require judicial
consideration of juror allegations regarding influences internal
to the deliberation process”).
3.
In the face of this clearly established Supreme Court
precedent available to guide a state court’s adjudication of a
claim of external influences on a jury’s deliberations, the
State nonetheless asserts that because the Supreme Court’s
decisions evaluating external influences on a jury’s
deliberations involved different factual circumstances than
those presented by Barnes, the Supreme Court “has given state
35
courts little to no guidance” in adjudicating such claims.
Appellee Br. 21-22. It is, therefore, the State’s position that
the MAR Court’s adjudication in this case could not have been an
unreasonable application of clearly established federal law.
The State is incorrect.
Indeed, Remmer and its progeny clearly established
that a presumption of prejudice must be applied, and that a
hearing must be held, when a defendant presents a genuine
allegation of communication or contact between a third party and
a juror concerning the matter pending before the jury. There is
no requirement under AEDPA that a habeas petitioner present
facts identical to those previously considered by the Supreme
Court to be entitled to relief. Panetti v. Quarterman, 551 U.S.
930, 953 (2007) (noting that “AEDPA does not ‘require state and
federal courts to wait for some nearly identical factual pattern
before a legal rule must be applied’” (quoting Carey v.
Musladin, 549 U.S. 70, 81 (2006) (Kennedy, J., concurring in
judgment))); see also Williams v. Taylor, 529 U.S. 362, 407
(2000) (a state court’s decision is an “unreasonable
application” of clearly established federal law if the court
“identifies the correct governing legal rule from [the Supreme]
Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case” (emphasis supplied)). Thus,
as illustrated, this clearly established legal principle can
36
apply to myriad factual circumstances involving third party
communications with jurors.
Our § 2254 review of Barnes’ juror misconduct claim is
therefore guided by Remmer and the other clearly established
Supreme Court precedent described above concerning third party
communications with jurors.
B.
Unreasonable Application of Clearly Established Federal Law
Having identified the clearly established federal law
governing Barnes’ juror misconduct claim, we must now determine
whether the MAR Court acted contrary to this clearly established
law, or applied it unreasonably, in failing to order a hearing
and failing to apply a presumption of prejudice after Barnes
presented allegations that a juror communicated with her pastor
about the death penalty during Barnes’ capital sentencing. In
view of the evidence presented to the MAR Court, we conclude
that its adjudication of Barnes’ juror misconduct claim amounted
to an unreasonable application of clearly established federal
law.
1.
Immediately after the jury recommended that Barnes be
sentenced to death, the trial court was alerted to the fact that
one of the jurors “called a member of the clergy, perhaps a
relative of hers, to ask about a particular question as to the
37
death penalty.” J.A. 1602. In response to the trial judge’s
inquiry regarding whether the juror “discussed the particular
facts of this case with anybody outside the jury,” defense
counsel stated that there was “[n]o evidence that they did or
did not as far as the conversation with the minister is
concerned.” Id. Because defense counsel could not point to any
such evidence at that time, the trial court “den[ied] the
request to start questioning [the] jury about what may or may
not have taken place during their deliberations of this trial.”
Id. at 1602-03.
Barnes provided additional details concerning the
juror’s communication with her pastor to the MAR Court. In his
MAR, Barnes presented allegations that one or more jurors were
bothered by a closing argument made during Barnes’ capital
sentencing hearing. The closing argument in question was made
by a co-defendant’s attorney, in which he suggested that if the
jury returned a sentence of death, the jurors would one day face
God’s judgment for their actions. According to Juror Peacock,
the closing argument “made the jury furious.” J.A. 1900.
Moreover, Juror Jordan noticed “that another juror, a female,
seemed visibly upset by the argument.” Id. at 1898. In
response, Juror Jordan contacted her pastor, Pastor Lomax, and
“discussed the lawyer’s argument” with him. Id. at 1892.
During their conversation, Pastor Lomax “told [Juror] Jordan
38
about another biblical passage which contradicted the passage
relied upon by the defense attorney.” Id. Two other jurors
remembered that a juror talked to her pastor during the case.
In particular, Juror Weddington stated that “a juror named
‘Hollie’ brought a Bible into the jury room and read from it”
and that “Hollie also talked to her pastor during the case.”
Id. at 1902. Additionally, Juror Allen “recalled discussions
about the fact that one of the jurors had brought in a [B]ible
and had talked with her pastor.” Id. 14
Barnes presented further evidence to the MAR Court
that Juror Jordan brought her Bible into the jury deliberation
room and “read the passage suggested to her by [Pastor] Lomax to
all of the jurors.” J.A. 1892. Although Juror Jordan recalled
that the passage stated “that it [was] the duty of Christians to
abide by the laws of the state,” id. at 1898, Juror Peacock
stated that the passage “dealt with life and death,” id. at
1893. In addition, Juror Weddington observed, “[t]he person who
brought in the Bible read a passage to a juror who was having a
hard time with the death penalty.” Id. at 1892-93.
14
For his part, Pastor Lomax “could not recall the
conversation recounted by [Juror] Jordan.” J.A. 1893. He
stated, however, “that it [was] possible that he did talk to
[Juror Jordan] about the death penalty while she was a juror,
but he simply does not remember it.” Id.
39
2.
After being presented with the allegations described
above, the MAR Court failed to apply Remmer or any reasonable
version of it. As we have explained, Remmer imposes not only a
presumption of prejudice, but also entitles the defendant to an
evidentiary hearing when the defendant presents allegations of
an extraneous influence on the jury -- that is, communications
or contact between a third party and a juror concerning the
matter pending before the jury. Remmer, 347 U.S. at 229-30;
Haley, 802 F.2d at 1535. Here, it is without question that
Juror Jordan’s conversation with Pastor Lomax was a contact or
communication with a third party. We must therefore determine
whether this contact concerned the matter pending before the
jury.
An unauthorized contact between a third party and a
juror concerns the matter pending before the jury when it is “of
such a character as to reasonably draw into question the
integrity of the verdict.” Stockton, 852 F.2d at 743. 15 This is
15
As we have previously noted, Stockton was a 28 U.S.C.
§ 2254 case in which we applied Remmer. See Fullwood, 290 F.3d
at 678. There, we explained that “when a habeas petitioner
bases a juror bias claim on improper communication between, or
improper influence exerted by, a nonjuror upon a juror, . . . he
‘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.” Id. (quoting Stockton,
852 F.2d at 743).
40
a “minimal standard.” Cheek, 94 F.3d at 141. Indeed, all that
is required is a threshold showing that “the extrajudicial
communications or contacts were more than innocuous
interventions.” Id. (internal quotation marks omitted).
The MAR Court greatly distorted Barnes’ burden,
requiring much more of Barnes than a threshold or minimal
showing of potential juror bias. Instead, to demonstrate an
entitlement to a hearing, the MAR Court required Barnes to
present evidence that a juror was actually biased and that
Barnes was therefore actually prejudiced by the unauthorized
communication. After concluding that Barnes’ new evidence “adds
nothing to the issue as it was presented during [his] original
appeal,” J.A. 1883, the MAR Court incorporated the North
Carolina Supreme Court’s reasoning from the direct appeal, which
denied Barnes’ request for a hearing because “[t]here is no
evidence that the content of any such possible discussion
prejudiced [Barnes],” State v. Barnes, 481 S.E.2d 44, 68 (N.C.
1997) (emphasis supplied). Even though Barnes alleged that
Juror Jordan called Pastor Lomax and discussed the death penalty
with him while Juror Jordan was considering whether Barnes and
his co-defendants would live or die, the court did not consider
this conversation as involving “‘extraneous information’ . . .
or deal[ing] with the fairness and impartiality of the juror.”
Id. In essence, the MAR Court demanded proof of a Sixth
41
Amendment violation -- that is, proof of juror bias -- before
Barnes was entitled to any relief. Such a requirement is
directly at odds with Remmer. Certainly, if defendants were
required to prove juror bias before obtaining a hearing, the
Remmer hearing requirement, which is designed to determine “what
actually transpired, or whether the incidents that may have
occurred were harmful or harmless,” Remmer, 347 U.S. at 229,
would be utterly meaningless. Therefore, no reasonable reading
of Remmer comports with the burden placed on Barnes by the MAR
Court.
The district court’s conclusion that Juror Jordon’s
conversation with Pastor Lomax did not reasonably draw into
question the integrity of the verdict is similarly flawed. In
the district court’s view, Barnes’ allegations simply
demonstrated that Pastor Lomax directed Juror Jordan “to a
portion of the Bible in response to a defense argument that was
most assuredly not before the jury -- i.e., whether God would
condemn a juror who voted to impose a death sentence.” Barnes
v. Lassiter, 1:08-CV-00271, 2013 WL 1314466, at *6 (M.D.N.C.
Mar. 28, 2013) (emphasis in original). We cannot agree. During
the sentencing phase of Barnes’ trial, the jury was charged with
deciding whether to impose a sentence of life imprisonment or a
sentence of death for Barnes and his co-defendants. Clearly,
then, “the matter before the jury” was the appropriateness of
42
the death penalty for these defendants. To the extent that a
juror had a conversation with a third party about the spiritual
or moral implications of making this decision, the communication
“was of such a character as to reasonably draw into question the
integrity of the verdict,” Stockton, 852 F.2d at 743, and
further inquiry in a Remmer hearing was required.
Our dissenting colleague characterizes this analysis
as “conclud[ing] that the communication alleged here satisfies
Remmer because ‘the spiritual or moral implications of’ deciding
whether to impose death ‘clearly’ related to ‘the matter pending
before the jury.’” Post at 72. The dissenting opinion
misconstrues the point. Given a jury’s role during the
sentencing phase of a capital case, “the matter pending before
the jury” is to determine whether or not the defendant ought to
receive the death penalty. See Caldwell v. Mississippi, 472
U.S. 320, 329 (1985) (describing the duty of “capital
sentencers” as “the serious one of determining whether a
specific human being should die at the hands of the State”);
Stockton, 852 F.2d at 746 (28 U.S.C. § 2254 case analyzing
Remmer and noting that “the exact issue” for jurors in the
sentencing phase of a capital case to decide is “whether to
impose the death penalty”). Here, as the dissent acknowledges,
during the sentencing phase, the jury was presented with an
argument from defense counsel “suggest[ing] that if jurors
43
returned a death sentence, they, the jurors would one day face
judgment for their actions.” J.A. 1892 (emphasis supplied).
This argument was directly aimed at whether the jury should
impose the death penalty, and at no point did the trial court
instruct the jury to disregard the argument. The argument was
thus squarely presented for the jury’s consideration as part of
their ultimate sentencing decision.
After hearing the argument, Juror Jordan contacted her
pastor and “discussed the lawyer’s argument” with him. J.A.
1892. During their conversation, the pastor “told [Juror]
Jordan about another biblical passage which contradicted the
passage relied upon by the defense attorney.” Id. We need look
no further than these allegations to conclude that Juror
Jordan’s conversation with a third party about defense counsel’s
argument, which asked the jury to return a sentence of life
imprisonment instead of death, bore on the jury’s sentencing
determination and was, therefore, “about the matter pending
before the jury.” To conclude otherwise would not simply be
incorrect or erroneous; it would be objectively unreasonable. 16
16
The dissent suggests that “it would not be ‘objectively
unreasonable’ for the state court to limit the scope of ‘the
matter pending before the jury’ to communication or contact
suggesting how the juror should vote in a particular case.”
Post at 73. In the dissent’s view, “[t]he North Carolina state
MAR [C]ourt could reasonably conclude that the type of
communication at issue here did not constitute contact ‘about
(Continued)
44
Moreover, in discussing whether relief under Remmer
was warranted in this case, the dissent focuses not on what is
alleged by Barnes, but rather on what is missing from his
allegations. In this regard, the dissent states, “[n]owhere in
the affidavits supporting his claim does Barnes suggest that the
pastor expressed his views of the death penalty either generally
or as applied to this case.” Post at 75. The dissent
continues, noting that Barnes’ affidavits do not “support the
claim that the pastor attempted to persuade the juror to vote
for or against the death penalty, suggested that the Bible
supported a particular sentence in this case, or exposed the
juror to any extraneous information relevant to the juror’s
the matter pending before the jury’ because it was not directed
to the choice of sentence, life in prison or death, that the
jury was ultimately charged to determine.” Id. at 77-78. We
could not disagree more. Indeed, Barnes’ allegations satisfy
even this arguably more stringent standard offered by the
dissent. The alleged conversation at issue here was prompted by
a defense argument concerning the consequences for a juror who
votes to impose a death sentence for Barnes and his co-
defendants. Juror Jordan and Pastor Lomax “discussed the
[defense] lawyer’s argument,” and Pastor Lomax “told [Juror]
Jordan about another biblical passage which contradicted the
passage relied upon by the defense attorney.” J.A. 1892. Thus,
Pastor Lomax’s communication bore directly on the very decision
facing Juror Jordan -- whether to impose the death penalty.
Even under the dissent’s proposed iteration of the relevant
standard, it is hard to see how this communication does not
“suggest[] how the juror should vote in a particular case,” see
post at 73, or how the communication “was not directed to the
choice of sentence, life in prison or death,” see post at 77.
45
deliberative process.” Id. In making these observations, the
dissent ignores a critical component underlying the Supreme
Court’s concern in cases involving juror bias -- that without a
hearing, a criminal defendant is deprived of the opportunity to
uncover facts that could prove a Sixth Amendment violation. See
Remmer, 347 U.S. at 229 (“We do not know from this record, nor
does the petitioner know, what actually transpired, or whether
the incidents that may have occurred were harmful or
harmless.”); Remmer II, 350 U.S. at 379-80 (“It was the paucity
of information relating to the entire situation coupled with the
presumption which attaches to the kind of facts alleged by
petitioner which, in our view, made manifest the need for a full
hearing.”); Smith, 455 U.S. at 215 (“This Court has long held
that the remedy for allegations of juror partiality is a hearing
in which the defendant has the opportunity to prove actual
bias.”).
The Supreme Court has cautioned, “[t]he integrity of
jury proceedings must not be jeopardized by unauthorized
invasions.” Remmer, 347 U.S. at 229. Here, Barnes has
sufficiently alleged a third party communication with a juror
that may well have jeopardized the integrity of the sentencing
phase of his trial. The absence of evidence highlighted by the
dissent, coupled with the nature of Barnes’ allegations, is
46
precisely why Remmer requires the state courts to hold a hearing
in such cases.
The district court concluded, however, that a hearing
in state court was not necessary because the “North Carolina
courts accepted . . . Barnes’ claims as true when they assessed
whether he had raised a constitutional claim warranting relief
and determined that he had not.” Barnes, 2013 WL 1314466, at
*6. But, when a court is presented with credible allegations of
juror communications with a third party about the matter pending
before the jury, Remmer requires a hearing. This requirement
cannot be circumvented by simply accepting the factual
allegations as true. Just as in Remmer, the MAR Court here,
faced with a credible claim of juror misconduct, “[did] not know
from this record, nor [did] [Barnes] know, what actually
transpired, or whether the incidents that may have occurred were
harmful or harmless.” Remmer, 347 U.S. at 229. Accordingly,
the district court incorrectly concluded that although there was
unauthorized contact between a juror and her pastor, Barnes was
not entitled to the Remmer presumption of prejudice or a Remmer
hearing.
Barnes’ allegations raised a genuine concern of juror
impartiality, and due process therefore required the MAR Court
to remedy this allegation by ordering a hearing in which Barnes
would have enjoyed a presumption of prejudice. See Phillips,
47
455 U.S. at 215; Haley, 802 F.2d at 1535. By demanding that
Barnes prove prejudice before affording him a hearing, the MAR
Court turned Remmer on its head. The MAR Court’s adjudication
was an objectively unreasonable application of clearly
established federal law to the facts of Barnes’ juror misconduct
claim, see Williams, 529 U.S. at 407, and its failure to
investigate Barnes’ juror misconduct claim was thus an abuse of
discretion.
3.
The State nevertheless argues that the MAR Court did
not unreasonably apply clearly established federal law because
our court has previously determined, on § 2254 review, that it
was not unreasonable for a state court to conclude that the
presence of a Bible in the jury room was not an extraneous
prejudicial influence on a jury’s verdict. Our “Bible in the
jury room” line of cases, however, is readily distinguishable.
In Robinson, for example, a juror asked the bailiff for a Bible
and subsequently read several passages out loud in the jury room
-- including at least one referring to “an eye for an eye” -- to
convince the other jurors to vote for a death sentence. 438
F.3d at 357-58. With respect to the Remmer issue, we held, “it
would have been reasonable for the MAR court to conclude that
the Bible is not analogous to a private communication, contact,
or tampering with a juror.” Id. at 363. Unlike a private
48
communication with a third party, “which impose[s] pressure upon
a juror apart from the juror himself, the reading of Bible
passages invites the listener to examine his or her own
conscience from within.” Id. Therefore, we concluded that the
Bible, standing alone, was not an “external influence,” as that
term was used in the Remmer line of cases. Id. at 363-64. Of
particular relevance here, we further explained:
The fact that the bailiff provided the Bible to the
juror does not alter our conclusion that it was not an
external influence. Robinson does not allege that the
bailiff instructed the jury to consult the Bible, or,
for that matter, that he did anything other than
simply provide the Bible upon the juror’s request. On
these facts, the MAR court reasonably could have
concluded that the bailiff’s act of providing a Bible
was nothing more than an innocuous intervention into
the jury’s deliberations.
Id. at 366.
Despite the State’s arguments to the contrary, the
only similarity between the instant case and the “Bible in the
jury room” line of cases is the Bible itself. Unlike in
Robinson, where the juror in question was simply given a Bible
and read from it in the jury room, Barnes has alleged that Juror
Jordan was actually directed to a specific biblical passage by
her pastor in response to an argument about the death penalty
and that other jurors were aware that Juror Jordan had consulted
her pastor in this regard. We alluded that Robinson might have
been a different case if the bailiff had “instructed the jury to
49
consult the Bible” or done “anything other than simply provide
the Bible upon the juror’s request.” 438 F.3d at 366. Barnes
has presented that case -- his allegations clearly indicate that
Pastor Lomax did not simply provide Juror Jordan with a Bible.
In sum, because Robinson did not involve any extraneous
communication or contact between a juror and a third party, it
does not change our conclusion that the MAR Court unreasonably
applied clearly established federal law by simply denying
Barnes’ juror misconduct claim without applying a presumption of
prejudice and ordering a Remmer hearing.
C.
Substantial and Injurious Effect or Influence
Despite our conclusion that the MAR Court’s
adjudication of Barnes’ juror misconduct claim was an
unreasonable application of clearly established federal law, “we
are not permitted to grant habeas relief unless we are convinced
that the error had a ‘substantial and injurious effect or
influence in determining the jury’s verdict.’” Fullwood, 290
F.3d at 679 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)). This means that before we can grant habeas relief, we
must conclude that the MAR Court’s error “actually prejudiced”
Barnes. Bauberger, 632 F.3d at 104. “If we are in ‘grave
doubt’ as to the harmlessness of an error, the habeas petitioner
must prevail.” Fullwood, 290 F.3d at 679 (citing O’Neal v.
50
McAninch, 513 U.S. 432, 436 (1995)). “‘Grave doubt’ exists
when, in light of the entire record, the matter is so evenly
balanced that the court feels itself in ‘virtual equipose’
regarding the error’s harmlessness.” Id.
In the district court’s assessment, Barnes’
allegations failed to demonstrate that Juror Jordan’s contact
with Pastor Lomax had a substantial and injurious effect or
influence on the jury’s verdict. This conclusion, however, was
based on the district court’s erroneous holding that the MAR
Court did not unreasonably apply clearly established federal law
in denying Barnes a presumption of prejudice and a Remmer
hearing. Moreover, given the state court’s complete failure to
investigate Barnes’ juror misconduct claim, the district court
had no basis from which to determine whether Juror Jordan’s
communication with her pastor was harmless.
Based on the record before us, it is unclear whether
Barnes can demonstrate actual prejudice or whether the MAR
Court’s unreasonable application of federal law was harmless.
See Fullwood, 290 F.3d at 682 (“Given the paucity of the record
and the lack of any factual findings, . . . we are unable to
determine whether an outside influence upon [the juror] had a
‘substantial and injurious effect or influence in determining
the jury's verdict.’” (quoting Brecht, 507 U.S. at 637)). What
is clear, however, is that Barnes must be given the opportunity
51
to prove actual prejudice. Accordingly, we will remand for the
district court to conduct an evidentiary hearing solely on the
issue of whether the state court’s failure to apply the Remmer
presumption and failure to investigate Juror Jordan’s contact
with Pastor Lomax had a substantial and injurious effect or
influence on the jury’s verdict. See id.; Hall, 692 F.3d at 807
(explaining that the court is “uncertain as to whether [the
habeas petitioner] was actually prejudiced by the state courts’
constitutional error, given the dearth of information before
[the court]” and remanding for a hearing on actual prejudice).
As the Seventh Circuit has recently explained, “[t]he
Remmer presumption is meant to protect against the potential
Sixth Amendment harms of extraneous information reaching the
jury, but a state court’s failure to apply the presumption only
results in actual prejudice if the jury’s verdict was tainted by
such information.” Hall, 692 F.3d at 805. Barnes will not be
entitled to the Remmer presumption in attempting to make this
showing because the presumption does not apply in the federal
habeas context when proving a substantial and injurious effect
or influence on the jury’s verdict. See Lawson, 677 F.3d at 644
(citing Vigil v. Zavaras, 298 F.3d 935, 941 n.6 (10th Cir.
2002)). Therefore, to be entitled to habeas relief, Barnes will
need to affirmatively prove actual prejudice by demonstrating
52
that the jury’s verdict was tainted by the extraneous
communication between Juror Jordan and Pastor Lomax.
IV.
Pursuant to the foregoing, the judgment of the
district court is reversed, and this matter is remanded to the
district court for an evidentiary hearing to determine whether
the state court’s failure to apply the Remmer presumption and
its failure to investigate Barnes’ allegations of juror
misconduct in a hearing had a substantial and injurious effect
or influence on the jury’s verdict.
REVERSED AND REMANDED
53
AGEE, Circuit Judge, dissenting:
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) limits when a federal court may grant habeas relief to
a state prisoner. 28 U.S.C. § 2254(d). The majority agrees
with Barnes that the North Carolina state courts’ adjudication
of his claim satisfies AEDPA’s requirements because it
unreasonably applied Remmer v. United States, 347 U.S. 227
(1954). I disagree, and therefore respectfully dissent.
I.
AEDPA—which requires federal courts to give deference to
state court adjudications in close cases involving uncertain
Supreme Court precedent—dictates the proper outcome in this
case. See Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per
curiam) (“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.”). Under
AEDPA, a federal court “shall not” grant habeas relief “to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim” “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C. §
2254(d)(1). 1 The majority opinion acknowledges AEDPA’s
constraints only in the abstract, while simultaneously analyzing
the case at bar as if it were on direct appeal from the trial.
Thus, the majority opinion engages in a first-impression
analysis that substitutes “its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly,” a result AEDPA does not
permit. See Williams v. Taylor, 529 U.S. 362, 411 (2000).
Given the centrality of appellate application of AEDPA
deference, I begin by reviewing its demands on federal courts
examining state court decisions.
A.
Recent Supreme Court opinions addressing § 2254 unfailingly
and repeatedly impress upon circuit courts of appeals “the
substantial deference that AEDPA requires” federal courts to
give to state court adjudications of state prisoner claims.
White v. Woodall, --- U.S. ---, No. 12-794, 2014 WL 1612424, at
*2 (observing that § 2254(d)’s limitations are “a provision of
law that some federal judges find too confining, but that all
federal judges must obey”); Nevada v. Jackson, 133 S. Ct. 1990,
1
Barnes relies on the “unreasonable application of”
component of § 2254(d)(1) rather than the “contrary to”
component.
55
1994 (2013) (per curiam); Burt v. Titlow, 134 S. Ct. 10, 16
(2013) (“AEDPA erects a formidable barrier to federal habeas
relief for [state] prisoners.”); Greene v. Fisher, 132 S. Ct.
38, 43 (2011) (observing that AEDPA’s standard is “difficult to
meet, because [its purpose] is to ensure that federal habeas
relief functions as a guard against extreme malfunctions in the
state criminal justice systems, and not as a means of error
correction” (internal quotation marks omitted)); Harrington v.
Richter, 131 S. Ct. 770, 785 (2011) (“A state court must be
granted a deference and latitude that are not in operation when
the case involves review under” direct review.); Renico v. Lett,
559 U.S. 766, 773 (2010) (explaining that AEDPA “‘demands that
state-court decisions be given the benefit of the doubt’”
(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam)). The Supreme Court has also warned against “collapsing
the distinction between ‘an unreasonable application of federal
law’ and . . . ‘an incorrect or erroneous application of federal
law.” Jackson, 133 S. Ct. at 1994 (quoting Williams, 529 U.S.
at 412).
A state court’s decision is an “unreasonable application
of” Supreme Court case law if the state court “correctly
identifies the governing legal rule but applies it unreasonably
to the facts of a particular prisoner’s case.” Williams, 529
56
U.S. at 407-08. 2 Limiting the “unreasonable application” prong
further, the Supreme Court recently rejected the Fourth
Circuit’s additional characterization that a state court could
unreasonably apply Supreme Court precedent by “unreasonabl[y]
refus[ing] to extend a legal principle to a new legal context
where it should apply.” White, 2014 WL 1612424, at *8 (“To the
extent the unreasonable-refusal-to-extend rule differs from the
one embraced in Williams and reiterated many times since, we
reject it. Section 2254(d)(1) provides a remedy for instances
in which a state court unreasonably applies this Court’s
precedent; it does not require state courts to extend that
precedent or license federal courts to treat the failure to do
so as error.”). Moreover, where the Supreme Court has
articulated a broader governing principle, courts have “more
leeway . . . in reaching outcomes in case-by-case
determinations” than where the Court has articulated a narrower
rule. Harrington, 131 S. Ct. at 786 (internal alteration and
quotation marks omitted).
2
As the majority opinion notes, a state court’s
adjudication on the merits “need not cite or even be aware of
[Supreme Court] cases” or explain its rationale for this Court
to be owed deference under § 2254(d). Harrington, 131 S. Ct. at
784. Even where the state court’s decision does not explain its
reasoning or does so broadly, “the habeas petitioner’s burden
still must be met by showing there was no reasonable basis for
the state court to deny relief.” Id.
57
AEDPA deference to state court decisions means that “a
federal habeas court may overturn a state court’s application of
clearly established federal law only if it is so erroneous that
‘there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with [the Supreme] Court’s
precedents.’” Jackson, 133 S. Ct. at 1992 (quoting Harrington,
131 S. Ct. at 786); see also White, 2014 WL 1612424, at *8 (“The
critical point is that relief is available under § 2254(d)(1)’s
unreasonable-application clause if, and only if, it is so
obvious that a clearly established rule applies to a given set
of facts that there could be no ‘fairminded disagreement’ on the
question.”). And in undertaking its review, a federal court is
not constrained by the state court’s express reasoning, but
instead “must determine what arguments or theories supported or,
as here, could have supported, the state court’s decision.”
Harrington, 131 S. Ct. at 786. Although the majority opinion
fleetingly purports to apply AEDPA deference, it in truth simply
disagrees with an interpretation of Remmer that would allow the
state court to conclude that the conversation alleged to have
occurred here was not about a “matter pending before the jury.”
Cf. Maj. Op. at 42. In doing so, the majority opinion
“disregards perfectly reasonable interpretations [of Supreme
Court precedent] and hence contravenes § 2254(d)’s deferential
standard of review.” See White, 2014 WL 1612424, at *6.
58
B.
Through the applicable AEDPA lens, then, I consider the
North Carolina courts’ decisions denying Barnes a presumption of
prejudice or an evidentiary hearing in light of his allegation
that a juror communicated with her pastor during sentencing
deliberations. This inquiry entails examining the context and
nature of Barnes’ allegations as well as the applicable Supreme
Court precedent.
During closing arguments for the sentencing phase of Barnes
and his co-defendants’ trial, one co-defendant’s attorney told
any “true believers” on the jury that “all of us will stand in
judgment [before God] one day.” The attorney urged the jurors
to consider their judgment day before God and whether God would
praise them for not violating His commands—including “Thou shalt
not kill”—even if the state authorized sentencing a person to
death. (J.A. 1532-33.) The defense argument about the eternal
consequences to the jury’s decision left several jurors visibly
affected and, in one juror’s words, “furious.” (J.A. 1900.)
For reasons unexplained in the record and only speculated to
during oral argument, the prosecution did not object to this
argument.
Following the jury’s deliberations and recommendation that
Barnes be sentenced to death, Barnes’ attorney informed the
trial court that he had been apprised that one juror had spoken
59
to “a member of the clergy” during the trial “about a particular
question as to the death penalty.” (J.A. 1602.) Because Barnes
had no evidence that the juror discussed “the particular facts
of this case with anybody outside the jury,” the trial court did
not allow the jurors to be questioned about this incident and
denied Barnes’ motion for a new trial. (J.A. 1602-03.)
Barnes argued on direct appeal that the trial court abused
its discretion by denying his motion and not investigating this
allegation of juror misconduct. The North Carolina Supreme
Court assumed that Barnes’ allegations regarding third-party
contact were true, but concluded that the trial court had not
abused its discretion when confronted by a “mere unsubstantiated
allegation” that did not call into question “the fairness or
impartiality of the juror.” (J.A. 1854-55.) In particular, the
North Carolina Supreme Court noted the absence of evidence that
the communication “prejudiced [Barnes] or that the juror gained
access to improper or prejudicial matters and considered them
with regard to this case.” (J.A. 1855.)
When filing his North Carolina Motion for Appropriate
Relief (“MAR”), Barnes attached several affidavits and an
interview summary purporting to support his claim of “juror
misconduct and extraneous influences on the jury.” (J.A. 1882.)
An affidavit from Barnes’ private investigator averred that
juror Hollie Jordan told him she believed that the co-
60
defendant’s attorney had “quot[ed] scripture out of context”
when he asserted “the jurors would one day face judgment for
their actions” if they sentenced the defendants to death. She
“called her pastor” and “discussed the lawyer’s argument with”
him, during which time the pastor informed her of “another
biblical passage which contradicted the passage relied upon by
the defense attorney.” (J.A. 1892.) On the day of her
interview with the private investigator, Ms. Jordan signed an
interview summary that does not mention any conversation with
her pastor. Instead, Ms. Jordan’s signed statement says that
she was troubled by the co-defendant’s attorney’s argument, and
that she “brought a Bible from home into the jury
deliberation[,] she read an unspecified passage from the Bible
stating that it is the duty of Christians to abide by the laws
of the state[, and that she] knew the passage from church.”
(J.A. 1898.) 3
Several other jurors recalled that one or more jurors read
from the Bible during the course of the jury’s deliberations.
None of the jurors could remember the verses read, but some of
them recalled that they at least in part related to the co-
defendant’s attorney’s troubling closing argument, and “dealt
3
Juror Jordan’s pastor did not recall conversing with Ms.
Jordan, but admitted it was possible that he had done so and
“simply [did] not remember it.” (J.A. 1893.)
61
with life and death.” A few jurors also recalled that a juror
had talked to her pastor during the proceedings. (J.A. 1892-93,
1900, 1902-03.)
The North Carolina MAR court denied Barnes’ claims as
“procedurally barred and without merit,” explaining that the
evidence acquired after the direct appeal did not alter the
nature of Barnes’ claims, which were “subject to the same
analysis inherent in the [North Carolina Supreme Court’s]
decision.” (J.A. 1883.)
Barnes thereafter timely filed a § 2254 petition for a writ
of habeas corpus in the U.S. District Court for the Middle
District of North Carolina. Relevant to this appeal, Barnes
once again alleged that juror misconduct during the sentencing
deliberations violated his due process rights. Specifically, he
asserted that a juror improperly asked her pastor for advice
“about the biblical correctness of a defense closing argument”
(J.A. 1631), that the juror then improperly tainted the jury
deliberation by reading Bible verses to other jurors, and that
the state court erred by not granting Barnes a presumption of
prejudice or conducting an evidentiary hearing to establish the
prejudicial effect of these incidents. (J.A. 1627-40.) The
district court denied Barnes’ petition, but granted a
certificate of appealability “with respect to the issue whether
a juror’s contact with her pastor violated [his] Sixth Amendment
62
right to a fair trial.” (J.A. 2181.) 4
C.
Barnes alleges, as he did below, that the state courts
unreasonably applied Supreme Court precedent by denying him a
presumption of prejudice arising from the juror’s conversation
with her pastor. He asserts that this conversation “constituted
an impermissible external influence on the deliberating jury,”
which entitles him to a new sentencing hearing. (Opening Br.
18.) In the alternative, he asserts that the state courts
unreasonably applied Supreme Court precedent by denying him the
opportunity to prove actual prejudice at an evidentiary hearing.
The Sixth Amendment’s due process right to a jury trial
encompasses being tried “by a panel of impartial, indifferent
jurors.” Turner v. Louisiana, 379 U.S. 466, 471 (1965)
(internal quotation marks omitted). And “[t]he failure to
4
Barnes continues to press the impropriety of reading the
Bible during deliberations inasmuch as he alleges that the juror
communicated information originally given to her from her pastor
to the jury. To the extent that reading the Bible during
deliberations would present a separate claim of juror
misconduct, that claim is not properly before this Court.
Moreover, the analysis for the juror contact claim turns on the
conversation alleged to have occurred between the juror and her
pastor, not on what the juror did thereafter. If that
communication did not trigger Remmer, then nothing the juror did
thereafter would present a different claim than the separate,
“reading the Bible during deliberations” claim for which Barnes
has not been issued a COA.
63
accord an accused a fair hearing violates even the minimal
standards of due process.” Id. at 471-72. This constitutional
concern forms the basis for a limited exception to “the near-
universal and firmly established common-law rule in the United
States [that] flatly prohibit[s] the admission of juror
testimony to impeach a jury verdict.” Tanner v. United States,
483 U.S. 107, 117 (1987). The exception permits juror testimony
regarding “whether extraneous prejudicial information was
improperly brought to the jury’s attention or whether any
outside influence was improperly brought to bear upon any
juror.” Id. at 121 (quoting Federal Rule of Evidence 606(b)). 5
Barnes’ allegations fall within two overlapping sets of
Supreme Court cases related to this narrow exception: those
dealing with third-party contact during a trial and those
dealing with juror misconduct during a trial. See Smith v.
Phillips, 455 U.S. 209, 221-22 (1984) (O’Connor, J.,
concurring). 6 That said, the Supreme Court has considered claims
5
North Carolina Rule of Evidence 606(b) mirrors the federal
exception. See N.C. Gen. Stat. § 8C-1, Rule 606(b).
6
Allegations of juror misconduct are further broken down
into those alleging extraneous juror misconduct and those
alleging internal juror misconduct. Although the line between
these two types of misconduct is not always clear, the
distinction creates important consequences when analyzing a
petitioner’s claim in light of the applicable evidentiary rules.
See Tanner, 483 U.S. at 116-22 (discussing the common law rule
adopted in federal court prohibiting juror testimony on matters
(Continued)
64
based on jury bias arising from third-party contact during the
course of a trial in only a handful of cases.
The cornerstone of Barnes’ argument rests on Remmer, in
which the Supreme Court considered what due process required
when Remmer alleged an improper external influence on a juror
arising from a third-party telling the juror he “could profit by
bringing in a verdict favorable to” one party. 347 U.S. at 228.
The juror told the trial court about this contact, and the trial
court reported the contact to the Federal Bureau of
Investigation, which investigated the matter further. Id.
Remmer moved for a new trial, alleging that this external
contact with the juror deprived him of a fair trial. Id. at
229. The district court denied the motion without holding a
hearing (which Remmer had requested) to examine the interaction
and its effect. Id. The Supreme Court remanded the case for an
evidentiary hearing, stating:
In a criminal case, any private communication,
affecting the jury’s deliberation, and the narrow exception to
that rule permitting juror testimony in situations in which an
“extraneous influence” is alleged to have affected the jury).
Because Barnes’ claim is now limited to the juror’s
conversation with her pastor—as opposed to a juror reading the
Bible during deliberations—the analysis focuses on precedent
relating to extraneous juror misconduct. Cf. Robinson v. Polk,
438 F.3d 350, 359-68 (4th Cir. 2006) (discussing this
distinction in juror misconduct jurisprudence in the context of
juror’s use of the Bible during deliberations).
65
contact, or tampering, directly or indirectly with a
juror during a trial about the matter pending before
the jury is, for obvious reasons, deemed presumptively
prejudicial, if not made in pursuance of known rules
of the court and the instructions and directions of
the court made during the trial, with full knowledge
of the parties. The presumption is not conclusive,
but the burden rests heavily upon the Government to
establish, after notice to and hearing of the
defendant, that such contact with the juror was
harmless to the defendant.
Id. The Supreme Court observed that the record before it did
not reflect “what actually transpired, or whether the incidents
that may have occurred were harmful or harmless,” so a hearing
was necessary. Id. It vacated the lower court’s judgment and
remanded the case to the district court for a hearing. Id. at
230.
In Parker v. Gladden, 385 U.S. 363 (1966) (per curiam), the
Supreme Court held that a defendant was entitled to a new trial
because a bailiff had stated to or in the presence of one or
more jurors that the defendant was a “wicked fellow” and
“guilty,” and that “[i]f there [was] anything wrong [in
convicting him,] the Supreme Court [would] correct it.” Id. at
363-64. The Supreme Court observed that this communication
implicated the defendant’s constitutional rights to be tried by
an impartial jury and to confront the witnesses against him.
Id. at 364. And it concluded that the communication was
prejudicial because the bailiff was an officer of the court and
the state, had “shepherd[ed] [the jury] for eight days and
66
nights,” and made statements “involv[ing] such a probability
that prejudice will result that it is deemed inherently lacking
in due process.” Id. at 365.
In Turner v. Louisiana, 379 U.S. 466 (1965), the Supreme
Court considered a different type of third-party influence on
the jury’s deliberation: two deputy sheriffs were both
“principal witnesses for the prosecution” at the trial and
charged with keeping the jury sequestered. Id. at 467-68. The
court explained that the latter “meant that the jurors were
continuously in the company of [these witnesses and other
sheriff deputies] during the three days that the trial lasted.
[They] drove the jurors to a restaurant for each meal, and to
their lodgings each night. The deputies ate with them,
conversed with them, and did errands for them.” Id. at 468.
Although the evidence did not indicate that the deputies
discussed the case with the jurors while discharging these
duties, id. at 469, 473, the Supreme Court nonetheless held that
this interaction unconstitutionally tainted the proceedings.
Id. at 472-73. The Court explained:
even if it could be assumed that the deputies never
did discuss the case directly with any members of the
jury, it would be blinking reality not to recognize
the extreme prejudice inherent in this continual
association throughout the trial between the jurors
and these two key witnesses for the prosecution. We
deal here not with a brief encounter, but with a
continuous and intimate association throughout a
three-day trial—an association which gave these
67
witnesses an opportunity . . . to renew old
friendships and make new acquaintances among the
members of the jury.
Id. at 473.
Most recently, in Smith v. Phillips, 455 U.S. 209 (1984),
the Supreme Court rejected a petitioner’s argument that he was
entitled to a new trial after a juror submitted an employment
application to the prosecutor’s office during the course of the
trial. The Court noted that in Remmer, the “attempted bribe,
which [was] ‘presumptively prejudicial,’ [coupled with] the
undisclosed investigation, which was ‘bound to impress the
juror” required a hearing at which the parties could determine
the prejudicial impact of these events. Id. at 215-16.
However, the Court observed that “shield[ing] jurors from every
contact or influence that might theoretically affect their
vote,” was “virtually impossible,” and held that a new trial was
unnecessary each time such an allegation or incident occurred.
Id. at 217. Instead, the Supreme Court reiterated that a
hearing—such as the one the trial court held in that case—could
ensure the jury decided the case based “solely on the evidence
before it” and did not prejudice the defendant. Id.
While Barnes’ argument regarding “clearly established
Supreme Court” case law rests on Remmer, each of the above
Supreme Court cases informs how that precedent has been applied
and how a court should assess allegations of juror misconduct or
68
third-party influence during a trial. I agree with the majority
that Remmer is clearly established Supreme Court precedent, but
after reviewing Barnes’ claims under the AEDPA standards of
review, I conclude that the North Carolina state courts did not
unreasonably apply Remmer.
D.
Analyzing Remmer’s applicability to the case at bar
requires first looking to what the Supreme Court set forth as
the component parts of its rule, that being: “In a criminal
case, any private communication, contact, or tampering, directly
or indirectly, with a juror during a trial about the matter
pending before the jury is, for obvious reasons, deemed
presumptive prejudicial” except under circumstances not relevant
here. 347 U.S. at 229 (emphasis added). Read in the context of
the Supreme Court’s actual holding, Remmer’s broad reference to
“any private communication, contact, or tampering” is
immediately constricted by the narrowing clause “about the
matter pending before the jury.” This limitation makes sense
given that the Remmer presumption flows from the narrow
exception to the common law prohibition—now expressed in the
rules of evidence—against soliciting juror testimony to impeach
69
the verdict. 7 See Robinson, 438 F.3d at 359-61 (discussing these
principles); Stockton v. Virginia, 852 F.2d 740, 743-44 (4th
Cir. 1988) (same). Whatever Remmer’s scope, then, it must be
understood as part of a limited exception to the normal rules
governing the finality of the verdict and prohibiting courts
from entertaining post-judgment evidence to impeach the jury’s
verdict.
As the majority opinion correctly recognizes, not every
third-party contact implicates Remmer’s presumption of
prejudice. Supra Maj. Op. at 32-35. See, e.g., United States
v. Blauvelt, 638 F.3d 281, 294-95 (4th Cir. 2011) (holding, on
direct review, that third-party contact between a juror and
prosecutor unaffiliated with the case during the course of the
trial was “inadvertent and innocuous” and thus did not trigger
Remmer’s presumption even though the juror mentioned her jury
7
Federal Rule of Evidence 606(b) states:
During an inquiry into the validity of a verdict or
indictment, a juror may not testify about any
statement made or incident that occurred during the
jury’s deliberations; the effect of anything on that
juror’s or another juror’s vote; or any juror’s mental
processes concerning the verdict or indictment. The
court may not receive a juror’s affidavit or evidence
of a juror’s statement on these matters.
There are three exceptions, permitting jurors to testify about
whether “extraneous prejudicial information was improperly
brought to the jury’s attention”; “an outside influence was
improperly brought to bear on any juror”; or “a mistake was made
in entering the verdict on the verdict form.”
70
service and expressed new-found respect for the prosecutor’s
job); Wolfe v. Johnson, 565 F.3d 140, 162 (4th Cir. 2009)
(holding, in § 2254(d) context, that the state court did not
unreasonably apply Remmer in concluding Wolfe failed to show
that a juror’s numerous telephone conversations during the
course of jury deliberations constituted an impermissible
external jury influence). In applying Remmer in previous cases,
this Court has held that in order to trigger Remmer’s
presumption, “a § 2254 petitioner must show both that an
‘unauthorized contact was made and that it was of such a
character as reasonably to draw into question the integrity of
the verdict.’” Wolfe, 565 F.3d at 162 (internal quotation marks
omitted) (emphasis added).
Significantly, neither Remmer nor any subsequent Supreme
Court case has elaborated on when interaction between a juror
and third party is “about the matter pending before the jury.”
An area undefined by the Supreme Court thus exists between the
general principle espoused in Remmer and acceptable
interpretations—including limitations—of it. Rather than
calling those parameters into question in the first instance,
under AEDPA, the Court may only grant relief if the state
courts’ conclusion that Barnes’ allegations fell outside
Remmer’s scope was “unreasonable.” And in examining that
question, AEDPA does not permit this Court to equate a
71
conclusion that the state’s application of Remmer is incorrect
to its being unreasonable. See, e.g., Jackson, 133 S. Ct. at
1994.
The majority opinion concludes that the communication
alleged here satisfies Remmer because “the spiritual or moral
implications of” deciding whether to impose death “clearly”
related to “the matter pending before the jury.” Maj. Op. at
42-43. However, it offers no substantive basis for this
conclusion grounded in Supreme Court precedent, nor does it
grapple with arguments or theories that could have supported the
state court’s decision to the contrary. In so doing, the
majority opinion treats the issue before us as if it were here
on direct appeal from the trial court and not a § 2254 petition
constrained by AEDPA. The majority opinion thus fails to
undertake the appropriate review under AEDPA, see Harrington,
131 S. Ct. at 786, and fails to recognize the lack of clearly
established Supreme Court case law mandating the interpretation
of Remmer that it adopts. In doing so, the majority
transgresses the Supreme Court’s admonition in Jackson against
“collapsing the distinction between an unreasonable application
of federal law” and what the majority now views as “an incorrect
or erroneous application of federal law.” 133 S. Ct. at 1994
(quoting Williams, 529 U.S. at 412); see also Harrington, 131 S.
Ct. at 786 (“It bears repeating that even a strong case for
72
relief does not mean the state court’s contrary conclusion was
unreasonable.”).
To determine what constraints Remmer posed generally—and
specifically what reasonable interpretations of “the matter
pending before the jury” might exist—I return to the controlling
Supreme Court case law, beginning with Remmer. When that case
returned to the Supreme Court, the Supreme Court explained that
the earlier remand for an evidentiary hearing had been necessary
because of “the paucity of information relating to the entire
situation coupled with the presumption which attaches to the
kind of facts alleged by petitioner[.]” Remmer v. United
States, 350 U.S. 377, 379-80 (1956) (emphasis added). In light
of the plain language in both Remmer decisions describing why
the presumption and hearing were necessary in that case, it
would not be “objectively unreasonable” for the state court to
limit the scope of “the matter pending before the jury” to
communication or contact suggesting how the juror should vote in
a particular case.
The majority correctly posits that a state court may
unreasonably apply Supreme Court precedent even where the
Supreme Court has not issued an opinion involving a nearly
identical fact pattern. See Maj. Op. at 36. Federal courts can
grant habeas relief when state court adjudications are either
“contrary to” or “unreasonable application[s] of” clearly
73
established Supreme Court precedent, § 2254(d)(1). The point,
however, is that to prevail under § 2254, a petitioner must show
more than just the misapplication of Supreme Court precedent or
an erroneous decision. As set out earlier, AEDPA mandates a
much higher bar, and where the Supreme Court has not spoken on a
particular aspect of a claim, more room exists for a state
court’s adjudication of the claim to be reasonable. See, e.g.,
White, 2014 WL 1612424, at *6 (observing that “where the precise
contours of [a] right remain unclear, state courts enjoy broad
discretion in their adjudication of a prisoner’s claims”
(internal quotation marks omitted)); Renico, 559 U.S. at 773-79
(applying this standard where the state court and circuit court
of appeals offered conflicting interpretations of the record,
both of which were “reasonable” and concluding that the state
court’s adjudication was therefore not objectively
unreasonable); Mitchell, 540 U.S. at 17-18 (discussing and
applying why an erroneous state court decision is not an
objectively unreasonable state court decision). Cf. supra at
[2-5]. Applied to this case, it is a far cry from limiting
Remmer to a nearly identical factual scenario (i.e., a potential
bribe) to conclude that whatever defines the proper scope of
“the matter pending before the jury,” it does not extend to the
allegations at issue here.
74
Returning to the actual allegations contained in Barnes’
affidavits, 8 the only contact alleged to occur between the juror
and her pastor is a conversation regarding whether jurors would
face judgment from God if they sentenced someone to death.
(J.A. 1892.) Nowhere in the affidavits supporting his claim
does Barnes suggest that the pastor expressed his views of the
death penalty either generally or as applied to this case.
Neither do the affidavits support the claim that the pastor
attempted to persuade the juror to vote for or against the death
penalty, suggested that the Bible supported a particular
sentence in this case, or exposed the juror to any extraneous
information relevant to the juror’s deliberative process.
Rather, the substantive allegation in the affidavit regarding
the juror’s communication with her pastor is that the pastor
8
I note that the relevant cross-reference should be to the
allegations contained in the affidavits because at times Barnes’
briefs on appeal allege a much broader third-party communication
than can be reasonably inferred from the contents of the
affidavits or his § 2254 petition. At times the majority makes
this same error.
For this reason, too, the majority is mistaken in opining
that the dissent is “focus[ing] not on what is alleged by
Barnes, but rather on what is missing from his allegations.”
Maj. Op. at 45. As detailed above, Barnes’ affidavits simply do
not allege what either Barnes or the majority now claim that
they do, and that point is made plain by looking to the actual
allegations in those affidavits. What is missing from the
affidavits simply highlights the dichotomy between what they do
contain and other types of allegations that might bring the
claim within Remmer’s scope.
75
provided the juror with a Bible verse that “contradicted the
passage relied upon by the defense attorney,” which had
“suggested that if jurors returned a death sentence, they, the
jurors would one day face judgment for their actions.” (J.A.
1892.) 9
Numerous times throughout his § 2254 petition Barnes
acknowledges that it is this issue—not the jury’s choice of the
appropriate sentence—which was the subject of the third-party
contact. E.g., J.A. 1627 (“[A]n attorney for one of the co-
defendants told the jury that sentencing a defendant to death
would violate God’s law and, perhaps, subject the jurors to
9
The rest of Barnes’ affidavits merely allege that the
juror talked to her pastor (without alleging anything about what
the conversation was about) or that jurors read from the Bible
during jury deliberations. (J.A. 1892-1903; see also Dist. Ct.
Op. at J.A. 2140 n.10.)
With respect to the former, the state court was not obliged
to conclude that mere contact with the pastor—absent some
attendant factual allegation that it involved communication
“about the matter pending before the jury”—warranted either a
presumption of prejudice or an evidentiary hearing. Indeed, the
majority recognizes as much. But we arrive at different
conclusions based on our different views of how to approach the
state courts’ interpretation of Barnes’ evidence in light of
Remmer.
With respect to the jurors reading from the Bible, these
allegations are not before the Court as they are not part of the
certificate of appealability. To the extent that Barnes alleges
further prejudice arising from the juror’s subsequent
conversations during deliberations, that would be mere
surplussage as improper third-party contact with even one juror
would be sufficient to trigger Remmer’s presumption, if that
contact had otherwise fallen within Remmer’s scope.
76
judgment one day. In response to this argument, one of the
jurors . . . telephon[ed] her pastor and [sought] his advice
about this argument. He referred her to a biblical passage that
he claimed refuted the argument.” (emphasis added)); 1629 (“[A]
lawyer argued the jurors might themselves be judged by God if
they returned a sentence of death. . . . In response to this
argument, [a juror] contacted her pastor . . . and discussed it.
[The pastor] gave her a biblical passage that he felt responded
to the argument.” (emphasis added)); 1631 (“[A] sitting juror .
. . call[ed] her pastor during the sentencing deliberations and
asked his advice about the biblical correctness of a defense
closing argument. The pastor referred her to a passage [he]
claimed refuted the argument.” (emphasis added)). While Barnes
also speculates and theorizes as to how the conversation
impacted the deliberative process, he reaches far beyond the
scope of the evidence before the state MAR court at the time it
reviewed his claim in so doing. E.g., J.A. 1633-34 (asserting,
among other things, that the pastor provided his view on the
biblical support for the death penalty and gave the juror the
“green light” to vote for death).
The North Carolina state MAR court could reasonably
conclude that the type of communication at issue here did not
constitute contact “about the matter pending before the jury”
because it was not directed to the choice of sentence, life in
77
prison or death, that the jury was ultimately charged to
determine. And Barnes’ allegations can fairly be read as
asserting that the juror and her pastor conversed about the
religious implications of serving on a jury, or even serving on
a jury in a capital case, but not about the appropriateness of
any specific sentencing choice that the jury was charged to make
regarding Barnes. Therefore, a fair-minded jurist could
conclude that this type of communication was not “about the
matter pending before the jury” under Remmer. 10
In a similar vein, it would be objectively reasonable to
view the “matter pending before the jury” as the state trial
court’s charge to the jurors to determine whether the
appropriate sentence for Barnes under North Carolina law was
life imprisonment or the death penalty. At no time did the
state trial court charge jurors with deciding the eternal
consequences to their soul that they could face as a result of
10
The majority opinion posits that because the trial court
did not instruct the jurors to disregard the closing argument,
it was “squarely presented for the jury’s consideration as part
of their ultimate sentencing decision.” Maj. Op. 44. Closing
argument is not evidence, however. And while the jury
instructions are not part of the joint appendix before this
Court, the sentencing trial proceeded in accordance with the
then-applicable provisions of N.C. Gen. Stat. § 15A-2000, which
delineates specific criteria—based on the evidence presented to
the jury—that the jurors are to use in deciding the appropriate
sentence. See North Carolina v. Barnes, 481 S.E.2d 44, 51 (N.C.
1997) (describing Barnes’ sentencing as proceeding “pursuant to”
N.C. Gen. Stat. § 15A-2000).
78
following the court’s instructions in making their sentencing
decision. The provocative closing argument of Barnes’ co-
defendant did not alter “the matter” actually before the jury as
instructed by the state trial court. Moreover, as the district
court noted, the communication Barnes’ affidavits allege to have
occurred “expressed no opinion on the propriety of the death
penalty and simply indicated that a Christian has a duty to
follow the laws of the state, which, in the case of North
Carolina, permitted a jury, in its discretion, to recommend that
a convicted murderer like Barnes serve life in prison or be put
to death[.]” Dist. Ct. Op. at J.A. 2143-44. Consequently, fair
minded jurists can disagree as to whether the contact alleged in
this case falls within Remmer’s scope of contacts and
communication “about a matter pending before the jury.” As
such, I do not believe that Barnes can point to Remmer’s own
parameters to satisfy his burden under AEDPA. 11
11
Notably, this Court’s precedent would also permit such a
reading of Remmer’s “matter pending before the jury” language.
In each instance where we have invoked the Remmer presumption
following third-party communication with a juror, jurors
encountered third parties who expressed their view of a party’s
culpability or appropriate sentence. E.g., Fullwood v. Lee, 290
F.3d 663, 676-84 (4th Cir. 2002) (remanding for an evidentiary
hearing in a § 2254(d)(1) case where the petitioner proffered
evidence that a juror’s “strongly pro-death penalty” husband had
repeatedly attempted to influence his wife to convict the
petitioner and sentence him to death); United States v. Cheek,
94 F.3d 136, 140-44 (4th Cir. 1996) (reversing and remanding for
a new trial based on the Remmer presumption based on juror-third
(Continued)
79
The other Supreme Court decisions discussed above do not
alter the conclusion that the state courts reasonably applied
Remmer. As noted, neither Parker nor Remmer specifically
expounded on the Remmer presumption even though they involved
juror partiality claims. Parker, like Remmer, entailed third-
party communication urging that jurors cast their vote in a
particular manner. See Parker, 385 U.S. at 363-64. Turner is
also readily distinguishable: even though the defendant did not
allege that the two witness-deputies specifically spoke about
party contact the Court characterized as the juror’s correct
perception that the third party was attempting to bribe him);
Stockton, 852 F.2d at 745-46 (holding that a third party’s
statement to jurors that he hoped “[they] fr[ied] the son-of-a-
bitch” “bore on the exact issue – whether to impose the death
penalty – that the jurors were deliberating at that time”);
Stephens v. South Atlantic Canners, Inc., 848 F.2d 484, 487-89
(4th Cir. 1988) (invoking Remmer’s presumption where the jury
was exposed to statements from an individual who had been
“inadvertently placed on [the] jury panel” during the first day
of trial, “that he knew from his own experience that the
plaintiff’s testimony was correct and that he would vote to
return a verdict against the defendants”); Haley v. Blue Ridge
Transfer Co., 802 F.2d 1532, 1534-38 (4th Cir. 1986) (invoking
Remmer’s presumption where the jury was exposed to statements
from a nonjuror who had inadvertently sat on the jury during the
first day of trial that he would “‘be against the company’
regardless of the evidence” given his personal familiarity with
trucking companies). See also Untied States v. Basham, 561 F.3d
302 (4th Cir. 2009) (affirming district court’s conclusion that
the Government had rebutted the Remmer presumption of prejudice
where juror was alleged to have telephoned multiple media
outlets to provide information on the penalty phase
deliberations). While these cases do not mean that Remmer could
not be read more broadly, they equally support the view that
Remmer could also reasonably be limited to such circumstances.
80
the case with the jurors during their close interactions
facilitating the jury’s sequestration, the Court’s concern arose
from these deputies being key prosecution witnesses in the case.
Interaction of this duration, proximity, and intimacy between
trial witnesses and jurors tainted the proceedings in a way that
a single conversation with a non-witness would not inherently
involve. See Turner, 379 U.S. at 474 (“It would have undermined
the basic guarantees of trial by jury to permit this kind of an
association between the jurors and two key prosecution witnesses
who were not deputy sheriffs. But the role that [they] played
as deputies made the association even more prejudicial. . . .
Turner’s fate depended upon how much confidence the jury placed
in these two witnesses.”). Indeed, Turner did not rely directly
on Remmer. For these reasons, Turner does not govern the state
courts’ adjudication of Barnes’ claim.
Lastly, Smith—the only of these cases directly relying on
Remmer—also involved an entirely different potential influence
on a juror’s decision making than that at issue here. The
petitioner in Smith alleged that a juror was implicitly biased
because he had submitted an employment application with the
prosecutor’s office during the trial. Relevant to this case,
Smith reiterated that the due process concern was in maintaining
“a jury capable and willing to decide the case solely on the
evidence before it, and a trial judge ever watchful to prevent
81
prejudicial occurrences and to determine the effect of such
occurrences when they happen.” 455 U.S. at 217. Because Smith
involved a juror’s implied, internal bias rather than prejudice
arising from specific third-party contact, it did not refine
Remmer’s guidance regarding what type of communication is “about
the matter pending before the jury” or when the Remmer
presumption is invoked as a result of such contact.
In short, none of these cases alters the basic proposition
contained in Remmer regarding what sort of communication
comprises “the matter pending before the jury.” For these
reasons, I conclude that the North Carolina state courts could
reasonably conclude that the communication alleged here was not
“about the matter pending before the jury” such that it
triggered Remmer’s presumption of prejudice. And because the
state courts could reasonably conclude that the Remmer
presumption did not apply to Barnes’ claims, they did not err in
denying him an evidentiary hearing.
E.
I believe the majority’s analysis with respect to Barnes’
evidentiary hearing claim suffers from other analytical errors
as well. The majority concludes that the state courts “greatly
distorted Barnes’ burden, requiring” him to “present evidence
that a juror was actually biased and that Barnes was therefore
82
actually prejudiced by the unauthorized communication.” Maj.
Op. at 41. This conclusion misses the point underlying the
state courts’ denial of Barnes’ claims in several ways.
First, the state MAR court did not mention prejudice in its
brief analysis of this issue. Instead, it concluded that the
issue was procedurally barred and lacked merit because Barnes’
new evidence “add[ed] nothing to the issue as it was presented
during [his] original appeal, and the allegations are subject to
the same analysis inherent in that decision.” (J.A. 1883.) The
state MAR court did not require more of Barnes than Remmer
demands, nor did it distort the appropriate analysis.
To the extent it adopted the North Carolina State Court’s
view, that court’s statements regarding the lack of prejudice
flowed directly from its view of the nature of the communication
alleged to have occurred. See J.A. 1854-55; 1882-83. 12 That
inquiry is properly part of Barnes’ initial burden of submitting
sufficient support for his allegations so as to trigger the
12
The North Carolina Supreme Court held that “[t]he trial
court was faced with the mere unsubstantiated allegation that a
juror called a minister to ask a question about the death
penalty. Nothing in this assertion involved ‘extraneous
information’ as contemplated in our Rule 606(b) or dealt with
the fairness or impartiality of the juror. There is no evidence
that the content of any such possible discussion prejudiced
defendants or that the juror gained access to improper or
prejudicial matters and considered them with regard to this
case.” (J.A. 1854-55.)
83
protections discussed in Remmer. It was not enough for Barnes
to allege “contact between a juror and her pastor,” Barnes also
needed to present a credible allegation that this contact was
“about a matter pending before the jury.” Denying the Remmer
presumption of prejudice or an evidentiary hearing based on the
conclusion that the communication alleged did not call into
question the integrity of the verdict, i.e., did not concern the
“matter pending before the jury,” fully complies with Remmer.
To that end, this Court has previously recognized that it
is the petitioner’s initial burden to show prejudicial contact
in considering whether Remmer’s presumption of prejudice has
been triggered. See Blauvelt, 638 F.3d at 295 (holding that the
Remmer presumption did not apply where the communication was
innocuous and the defendant “ha[d] failed to present evidence
that the communication was prejudicial”); Wolfe, 565 F.3d at 162
(holding that “the state court’s conclusion that Wolfe failed to
show a prejudicial influence on the jury’s deliberations was not
objectively unreasonable”). The North Carolina state courts
thus properly analyzed Barnes’ allegations for their potentially
prejudicial nature in order to determine whether they were
sufficient to trigger Remmer. Contrast supra Maj. Op. at 41-42
(criticizing the state MAR Court for “demand[ing] proof of a
Sixth Amendment violation – that is, proof of juror bias –
before Barnes was entitled to any relief”).
84
Even more fundamentally, though, under AEDPA, we are not
constrained by the state courts’ rationale in assessing whether
its holding should nonetheless be upheld. Indeed, the state
courts’ decision need not provide any statement of reasons to
nonetheless create a presumption that a claim was “adjudicated
on the merits” and thus subject to § 2254(d) review.
Harrington, 131 S. Ct. at 784-85. Federal courts review the
“state court’s determination that a claim lacks merit,” not
solely the rationale it provides for that determination. See
id. at 786; see also Wolfe, 565 F.3d at 162 (observing that when
a state court adjudicates a claim on the merits, federal courts
must apply AEDPA’s deferential standard of review to the
decision, even when the court does not set forth the legal
principles, precedents, or rationale for its decision);
Robinson, 438 F.3d at 358 (“In assessing the reasonableness of
the state court’s application of federal law, therefore, the
federal courts are to review the result that the state court
reached, not whether its decision was well reasoned.” (internal
quotation marks and alterations omitted)).
In order for Barnes to prevail, it is not enough for the
majority to conclude that the state courts’ analysis erred in
considering Barnes’ burden as to prejudice. Rather, the
majority needed to consider whether any reading of the record
and Remmer could support the decision to deny a presumption of
85
prejudice and evidentiary hearing, even if the state courts’
stated rationale was inadequate or flawed. See Harrington, 131
S. Ct. at 786. AEDPA demands no less.
II.
For the reasons set forth above, I conclude that
“fairminded jurists could disagree” as to whether the
communication Barnes alleges to have occurred constituted juror
contact with a third party “about a matter pending before the
jury.” Neither Remmer nor any subsequent Supreme Court case has
explored the applicability of the Remmer presumption to
allegations that a juror’s conversation with a third party did
not directly bear upon how the juror would vote. Given that
Remmer expressed only a general principle, and the Supreme Court
has recognized that “[t]he more general the rule, the more
leeway courts have in reaching outcomes in case-by-case
determinations,” Harrington, 131 S. Ct. at 786, I believe that
AEDPA’s standard of review settles the Court’s inquiry in this
case.
If this case was before the Court on a direct appeal, a
different analysis would be required to determine whether Barnes
could be entitled to any relief under Remmer. But that is not
the posture of the case before the Court, and our review under
AEDPA is only whether the North Carolina state courts could
86
reasonably conclude that Remmer did not require either a
presumption of prejudice or an evidentiary hearing. Given the
ambiguities in interpreting what constitutes a “matter pending
before the jury” and a reasonable basis for distinguishing the
applicable Supreme Court precedent, we are constrained by AEDPA.
See Mitchell, 540 U.S. at 18; Robinson, 438 F.3d at 355 (“The
state court’s application of clearly established federal law
must be ‘objectively unreasonable,’ and ‘a federal habeas court
may not issue the writ simply because that court concludes in
its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly.’” (quoting Williams, 529 U.S. at 411)).
Because I would hold that the North Carolina state courts
did not unreasonably apply Remmer by concluding that the contact
alleged in Barnes’ affidavits did not trigger a presumption of
prejudice, I would affirm the district court’s denial of Barnes’
§ 2254 petition. Accordingly, I respectfully dissent.
87