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

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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.

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