concurring and dissenting:
I concur in those parts of the opinion which affirm the conviction and which oth*750erwise deny relief, but, as to the question of jury bias, I respectfully dissent.
I doubt the validity of applying our Haley presumption of prejudice1 in this case following the decision in Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), although I recognize that Haley is the rule in this circuit. I also doubt that Federal Rule of Evidence 606(b) should be applied over literally so as not to permit the State to introduce at least some evidence from the jurors who heard any remarks by Puckett to say whether or not such remarks had any effect on them personally, this without invading the deliberations in the jury room and so as to uphold, not impeach, the verdict. To hold, as we do, that any extraneous communication to a juror is presumably prejudicial unless innocuous, and then prevent the State from proving lack of prejudice by the very juror involved, very nearly places the State in a box from which escape is difficult if not impossible. Such questions of bias are freely explored on voir dire prior to a trial, and limited exploration of the same “with great caution in the use of such evidence” would seem to have been the rule absent Rule 606(b). Mattox v. United States, 146 U.S. 140, 148, 13 S.Ct. 50, 52, 36 L.Ed. 917 (1892). See also Smith v. Phillips, 455 U.S. 209, 217 n. 7, 102 S.Ct. 940, 946, n. 7, 71 L.Ed.2d 78 (1982), which did not consider Rule 606(b). Indeed, Remmer v. United States, 350 U.S. 377, 76 S.Ct. 425, 100 L.Ed. 435 (1956) (Remmer III), requires the inquiry at the required hearing to include the “... communication with the juror and the impact thereof upon him then, immediately thereafter, and during the trial....” 350 U.S. at 379, 76 S.Ct. at 426. If the Constitution imposes a hearing on the States, as here, then the rules of the hearing must also be imposed regardless of Rule 606(b).
While the above protests may turn out to be little more than lamentations about a result I think is unjustified on account of the almost casual comments of a restaurateur, our decision, I think, has a pronounced and basic flaw. That is that Stockton is procedurally barred from raising this claim under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and subsequent like cases. Since Stockton could have raised the question on direct appeal and did not, absent cause and prejudice, which are not present here, he is procedurally barred under state law from its consideration in a state court, and we may not consider it now. Cole v. Stevenson, 620 F.2d 1055 (4th Cir.1980) (en banc). See also Murray v. Carrier, 477 U.S. 478, 489, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
An examination of the opinion of the Supreme Court of Virginia in 314 S.E.2d 371 (Va.1984), of the 19 assignments of error in that case and of the briefs filed discloses no mention of jury bias on account of the offending statement by Puckett so pronounced as to be worthy of argument in the sense presented here.
The minor consequence that was laid to this is corroborated by an examination of Stockton’s petition for collateral relief by way of habeas corpus filed in the Circuit Court of Patrick County, and the written opinion of that court denying relief, which petition was prepared by attorneys instead of by Stockton, and which included 11 claims for collateral relief, including 7 charges of ineffective counsel, but which never mentioned any question of jury bias caused by an outside communication such as is now claimed.
In Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), the Court held that a federal petitioner who is a state prisoner must “... present the state courts *751with the same claim he urges upon the federal courts.” 404 U.S. at 276, 92 S.Ct. at 512. The Court pointed out that “This is not a case in which factual allegations were made to the federal courts that were not before the state courts.” 404 U.S. at 276, 92 S.Ct. at 512. It was a case in which a state prisoner had never brought before the state courts a Fourteenth Amendment claim of denial of equal protection of the laws. Rather, his claim, upon the same facts, was whether the indictment procedure in Massachusetts was consistent with the Fifth Amendment’s requirement of grand jury indictment. While the prisoner had claimed in the state courts under the Fourteenth Amendment as it respected his Fifth Amendment claim, he had not presented his Fourteenth Amendment equal protection claim to the state courts. The Court held that the prisoner had not “... provided the Massachusetts ‘court with “an opportunity to apply controlling legal principles to the facts bearing upon [his] constitutional claim.” ’ ” 404 U.S. at 277, 92 S.Ct. at 513. And, most importantly, the court added “To be sure, respondent presented all the facts. Yet the constitutional claim the Court of Appeals found inherent in those facts was never brought to the attention of the state courts.” 404 U.S. at 277, 92 S.Ct. at 513.
I see no significant difference in the case before us and Picard. While Picard was a case involving exhaustion of state remedies, its procedural rule for presenting a claim should apply here. No claim is made of cause which prevented the raising of the claim. Accordingly, I suggest that Wainwright should control the disposition of this case.
I am supported in my reasoning by the record of the state trial, and the likely reason for the claim not having been perfected heretofore. Everyone connected with the case simply thought there was nothing to it, and there was not.
After the conclusion of the state trial, the attorneys moved to set aside the verdict on the ground of jury bias by reason of the now complained of statements by Puckett. The state court had a hearing at which all interested parties were permitted to participate and at which evidence was taken which met the requirements of Rem-mer I and Smith. The trial court heard the testimony of a Mr. and Mrs. Blackard, who were not jurors but were present, and of one Cockram who had been the foreman of the jury.
Mrs. Blackard testified on direct examination:
Q. All right, now, tell the Judge what you saw and what you heard.
A. They were sitting together and, ah, Glen Puckett, the owner of the diner, came up and was talking to them about the trial. He wanted to know if they had reached a verdict and one of them, I did not know which one, said that all of them had decided except for one woman, something to that effect is what was said.
And, on cross-examination, she added nothing:
Q. Mrs. Blackard, the only statement made was — the only statement made by this third person, Mr. Puckett, was he asked if they had reached a verdict and the response was that, ah, they were all in agreement except for one lady.
A. Something to that effect, yes.
Her husband, Blackard, on direct examination, testified:
Q. With Mr. Puckett. And how do you know they were talking about the trial and not talking about going fishing or hunting or something?
A. Well, ah, Glen [Puckett] came up and asked them if they’d come to a verdict yet and, ah, the best of my knowledge, they said they had all except for one, ah, one person, no, he said for one reason and, ah, Mr. Puckett said what’s that; he said haven’t you guessed yet, it’s a damned woman. And then, ah, as I recall, Glen Puckett says something to the effect, said I hope they fry that son-of-a-bitch.
But, on cross examination, one of his responses was:
Q. Mr. Blackard, other than the statement made by the — by Mr. Puckett in which he inquired about whether they had reached a verdict, that was really the *752only conversation that you heard, isn’t that right?
A. That’s true.
After the conclusion of the testimony and argument of counsel, the court delivered its oral decision, which is quoted in full:
THE COURT: All right, gentlemen. If I understood Mr. and Mrs. Blackard’s statement as to what they heard was said, was that this Mr. Puckett asked if they had reached a decision and some comment was made they all had decided but one woman. I feel that the statement in itself is not prejudicial, not harmful and Mr. Puckett says they didn’t discuss anything any further. Mr. and Mrs. Blackard seem to suspect that maybe something else was said but they don’t know what was said. So, based upon that, I see no harm or prejudice in the statement that was made and I’ll overrule the motion.
From the trial court’s opinion, we see that it found as a fact that “Mr. Puckett asked if they had reached a decision but some comment was made that they all had decided but one woman.” It further found as a fact that “Mr. and Mrs. Blackard seem to suspect that maybe something else was said but they don’t know what was said.” Both of these findings are quite justified by the testimony. While it is true that Blackard testified on direct examination that Puckett had said “I hope they fry that son-of-a-bitch,” it is just as true that on cross-examination that Blackard testified that it was true that “... other than the statement made by the — by Mr. Puckett in which he inquired about whether they had reached a verdict, that was really the only conversation that we heard, isn’t that right?” (The latter part of the last sentence is clumsy grammar, but its import is such that I do not wish to lose effect by any accusation of quoting out of context.)
I think that the trial judge was not required to accept Blackard’s testimony that Puckett had said he hoped they would fry the son-of-a-bitch. Blackard, in one breath, stated that such offending statement had been made, and, in the next breath, denied it, so the trial judge was entitled to believe as he obviously did that the statement had not been made.2 This was entirely a question of the weight of the evidence and the credibility of the witnesses, a matter peculiarly entrusted to a trial judge, especially upon oral testimony, as here.3 In addition, *753the finding of the state trial judge is supported by 28 U.S.C. § 2254(d). I further note that in Smith the finding of the state trial judge of no “prejudice against the [respondent]”, 455 U.S. at 213, 102 S.Ct. at 944, was accorded the presumptively correct protection of § 2254(d). 455 U.S. at 218, 102 S.Ct. at 946. I see no reason the “no harm or prejudice” finding of the state trial judge here should not be accorded the same presumptive validity. There is no convincing evidence to the contrary. Sumner v. Mata, 449 U.S. 539, 551, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981).4
Accordingly, I would reverse the grant of the writ.
. Haley is a rule of federal procedure merely, following Remmer I which was the same. We now apply it as a constitutional imperative without regard to United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), which emphasized the higher burden on collateral attack of a criminal judgment. I acknowledge, however, that Smith, 455 U.S. at p. 221, 102 S.Ct. at 948, may be construed as interpreting Remmer I as constitutionally "requiring a post trial hearing on juror bias."
In Tanner v. United States, — U.S. -, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), the Court did construe Rule 606(b) as limiting juror testimony to impeach the verdict, but it dealt with self imposed drinking during the trial, a matter it treated as intrinsic bias rather than bias from an extrinsic source, as here.
. The hearing before the state trial judge showed that Blackard had been convicted of four felonies. In the intervening four years between then and the hearing in the district court, he had been convicted of an additional five felonies, a total of nine. Yet, we are asked not to follow the state trial judge’s assessment of credibility and weight of evidence, although Blackard was not even corroborated by his wife.
. The majority takes the trial judge to task because the trial judge recited that Puckett had testified at the hearing on the motion, which he had not, rather than Cockram, who had. While I think it is apparent that this substitution of names was nothing more than a slip of the tongue or of a stenographer’s pencil, I have not referred to Cockram’s testimony in the body of this dissent so as not to detract from the trial judge’s finding. If Cockram’s testimony were considered, there is even more reason to give weight to the trial court’s finding:
Q. This, ah, you may feel that this puts you on the spot a little bit but I have to — sometimes I have to do that, ah, do you recall the events of that Thursday at lunch well enough to disagree with what Mr. and Mrs. Blackard said? Are you saying that that didn’t happen, that Mr. Puckett didn’t come by and he didn’t discuss the case with you or the people sitting at your booth?
A. Other than the comment of are you about to reach a decision, which was sort of a normal question, everybody we met that day asked us, ah, no other discussion that I recall took place concerning the case.
Q. Do you recall whether Mr., ah, or whoever the man was that came over to the table made commentary to you about what ought to be done with the defendant or what he hoped was done with the defendant?
A. Ah, He didn’t make any comments to me. Q. All right. Did you hear him make any comments to others at the table about that? A. That's really hard for me to say. Like I say, he did not come to talk to me because I don’t know the man, so, I don’t.
Q. All right. Did you hear him or someone other than him, who came over to the table, make comments to your fellow jurors? Did you hear him say anything like that?
A. Not that I thought had any effect or event pertained really to the case. Ah, It was typical comments. We hope you finish up this afternoon, ah, I don't really remember anything in particular because I think it was a point that most of the jury members, I think, *753felt the way I did. We wanted a time to get away and think a little bit and I wasn’t in the mood for a conversation.
. We should also take into consideration that the state hearing was held June 7, 1983, only 68 days after the verdict, while the hearing in the district court was April 20, 1987, with depositions being taken March 17 and 18, 1987, some four years later. Thus, any difference in testimony should be resolved in favor of the fresher recollection available in the state court.