concurring and dissenting:
I concur in the majority opinion with the exception of Part II thereof, as to which I respectfully dissent. I would affirm.
Part II of the majority opinion is divided into two parts: Part A. is Outside Influence By a Third Party. Part B. is Consideration of Extraneous Facts Related to Fulkoood’s Case.
I first consider Part A., which relies upon Miss Booth’s affidavit,1 which the majority describes as “Juror Joyce Austin was ‘strongly influenced by _, her husband [who] was strongly pro-death penalty’ and told Booth and other jurors that her husband ‘was constantly telling [Austin] during the trial and during deliberations that she should convict [Fullwood] and sentence him to death.’ ” The affidavit also included Booth’s opinion that “it was obvious ... that the pressure brought upon [Austin] by her husband caused her to vote exactly the way he wanted her to.”
In North Carolina, when a verdict is sought to be impeached, as here, N.C. GemStat. § 15A-1240 applies and is as follows:
§ 15A-1240. Impeachment of the verdict
(a) Upon an inquiry into the validity of a verdict, no evidence may be received to show the effect of any statement, conduct, event, or condition upon the mind of a juror or concerning the mental processes by which the verdict was determined.
(b) The limitations in subsection (a) do not bar evidence concerning whether the verdict was reached by lot.
(c) After the jury has dispersed, the testimony of a juror may be received to impeach the verdict of the jury on which he served, subject to the limitations in subsection (a), only when it concerns:
(1) Matters not in evidence which came to the attention of one or more jurors under circumstances which would violate the defendant’s constitutional right to confront the witnesses against him; or
(2) Bribery, intimidation, or attempted bribery or intimidation of a juror.
The Booth affidavit, with respect to Mrs. Austin’s husband, was plainly within § 1240(a) as “any statement, conduct, event, or condition upon the mind of a juror or concerning the mental processes by which the verdict was determined.” *696That being true, since, under the statute, “no evidence may be received” to show any such effect, there is not any requirement under the United States Constitution for an evidentiary hearing on that issue.
■ The majority decision relying on a decision of the North Carolina intermediate Court of Appeals, North Carolina v. Lyles, 94 N.C.App. 240, 380 S.E.2d 390, 394, has decided that the affidavit with respect to Mrs. Austin’s husband is admissible to show the fact of an external prejudicial communication but not as to “the subjective effect those matters had on their verdict.”
One problem .with the majority decision is that Lyles did not . decide the case under § (a) of the statute, as the majority decision infers, rather Lyles was decided under § (c)(1) of the statute, and its decision was obviously correct under the facts of that case.. In Lyles, a photograph of a lineup had been- admitted into evidence, with a paper under the bottom of the photograph concealing the words “Police Department, Wilson, North Carolina.— 12291, 12-07-81.” That evidence contradicted testimony of the defendant’s alibi witnesses and thus it was evidence which was considered by the jury and was given to the jury after the jury retired, and not in the presence of the defendant, which violated the confrontation clause. Thus, the fact of the consideration of the date and place of the photograph by the jury was in violation of § (c)(1) of the statute. It is true that the court also considered the consideration of that substantive evidence extraneous information within the meaning of Rule 606(b), but we are not dealing here with any item of substantive evidence, only with outside influence by a third party. And Miss Booth attempts by her affidavit to impeach her own verdict, in violation of the rule. The majority does not consider North Carolina v. Heatwole, 344 N.C. 1, 473 S.E.2d 310 (N.C.1996); North Carolina v. Rosier, 322 N.C. 826, 370 S.E.2d 359 (N.C.1988); North Carolina v. Mutakbbic, 317 N.C. 264, 345 S.E.2d 154 (N.C. 1986); North Carolina v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (N.C.1979), and North Carolina v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (N.C.1979), an unbroken string of cases from the North Carolina Supreme Court giving literal effect to § 15A-1240. Indeed, even the Lyles case states that “Both Rule 606(b) and § 15A-1240 unambiguously prohibit inquiry into the effect of anything occurring during deliberations upon jurors’ minds.” 380 S.E.2d at 394.
Because I believe that “outside influence” as related in the majority opinion may only refer to influence upon the mind of Mrs. Austin, I think that remanding the same for an evidentiary hearing is not required by the Constitution and that the decision of the North Carolina state courts to give no relief on account of the Booth affidavit in that respect is not contrary to, or an unreasonable application of, clearly established federal law as decided by the Supreme Court of the United States. See Tanner v. United States, 483 U.S. 107, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987).
I next consider Part II B. of the majority opinion which is based on the Booth affidavit to the effect that “The jury became aware from outside sources that Mr. Fullwood had already been sentenced to death by another jury. The jury became aware that Mr. Fullwood’s original death sentence had been reversed because of some technicality involving a mistake the trial judge had made.”
I believe no hearing is constitutionally required since defendant’s sixth amendment rights were not affected by the alleged extraneous contacts. Therefore, the state habeas court’s finding was not “contrary to, or involved an unreasonable ap*697plication of, clearly established Federal law...28 U.S.C.A. § 2254(d)(1).
Brecht requires extraneous and prejudicial information to have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). But no such harm is present here. As noted in the district court opinion, “trial counsel knew as a result of voir dire that a member of the jury had some prior knowledge of the case, and had read newspaper accounts relating to Petitioner’s prior sentencing, but affirmatively decided that such information would not affect the juror’s ability to provide Petitioner with a fair re-sentencing hearing.” Trial counsel did not excuse this juror and excuse-for cause was not required.2 State v. Green, 336 N.C. 142, 443 S.E.2d 14 (1994), cert denied, 513 U.S. 1046, 115 S.Ct. 642, 130 L.Ed.2d 547. Under North Carolina law, reversal is not required by a juror’s knowledge of a defendant’s prior death sentence. State v. Simpson, 331 N.C. 267, 271, 415 S.E.2d 351 (1992), cert. denied, 516 U.S. 1161, 116 S.Ct. 1048, 134 L.Ed.2d 194 (1996). Defendant, however, does not challenge this juror’s possible prejudice, but instead relies on the Booth affidavit.
This affidavit alleges that the jurors obtained outside information relating to defendant’s case. In particular, the affidavit claims “the jury became aware that Mr. Fullwood’s original death sentence had been reversed because of some technicality involving a mistake the trial judge had made.” Along with the two defense attorneys’ affidavits, this Booth affidavit was the only evidence filed with the state habe-as court in support of defendant’s constitutional claims. The majority’s opinion explained Miss Booth’s background:
Juror Booth revealed during voir dire that she earned an undergraduate degree in criminal justice, that she interned at the Public Defender’s office in Spartanburg, South Carolina, and that she was employed for a period of time by a criminal defense attorney as a paralegal. Clearly, Juror Booth’s experience made it likely that she would be familiar with the basics of the legal process, including criminal appeals. Full-wood accepted her as a juror despite the clear possibility that she would be a source of information about the legal process — as well as a favorable juror for him in light of her defense background.
Even with Miss Booth’s affidavit, defendant offers no evidence that any alleged juror knowledge concerning his past conviction did not, in fact, come from the juror who stated during voir dire that he had knowledge of this past conviction. Because defense counsel refused to remove the juror and North Carolina law permits this juror to sit on the jury, I do not believe that the state habeas,court’s decision is contrary to, or an unreasonable application of, federal law.3
Moreover, I agree with the state habeas court that defendant had presented his evidence with respect to said issue by the affidavit. Assuming the alleged extraneous information was not attained by the *698juror who had knowledge of defendant’s past conviction, I believe that this affidavit’s vagueness, in failing to mention any particular outside contact, precludes an ev-identiary hearing since the defendant has not introduced “competent evidence that there was an extrajudicial communication or contact.”4 Howard v. Moore, 131 F.3d 399, 422 (4th Cir.1997) (en banc).
Thus, I am of opinion that the decision of the state court declining to give any relief on account of the Booth affidavit was not “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
Finally, I fear that the precedent of impeaching this verdict on the strength of the Booth affidavit is establishing precedent which will denigrate jury verdicts.
STATE OF NORTH CAROLINA
COUNTY OF BUNCOMBE
AFFIDAVIT OF LAURA BOOTH
LAURA BOOTH, being first duly sworn, does hereby depose and say:
1. In 1994, I was one of the jurors who served on the jury which presided over the re-sentencing of Michael Lee Full-wood. The jury recommended that Mr. Fullwood be sentenced to death;
2. During the trial the jury was instructed not to listen to news accounts of the case, not to conduct its own investigation, and not to discuss the case with friends and family members. Regardless of how hard we tried to comply, the media, friends and family were constantly available providing us with outside information.
3. At various times during the trial and during deliberations, jurors gained outside information from newspapers, news broadcasts, friends and family members about various aspects of Mr. Fullwood’s case. This outside information was used by the jury during its deliberations as is more specifically set forth below;
4. The jury became aware from outside sources that Mr. Fullwood had already been sentenced to death by another jury. The jury became aware that Mr. Fullwood’s original death sentence had been reversed because of some technicality involving a mistake the trial judge had made. This knowledge did lessen our sense of responsibility in making the decision because we felt that twelve other rational people had sentenced Mr. Fullwood to death;
5. We also became aware that any decision we made would be appealed. I believe this information was revealed to us by one of the other jurors who had learned this from an outside source. This knowledge lessened our sense of responsibility in making our decision because we felt that our decision was in no way final;
6. One juror in particular, Joyce Austin, was strongly influenced by an outside source. Ms. Austin told us that her husband was strongly pro-death penalty and that he was constantly telling her during the trial and during deliberations that she should convict him and sentence him to death. It was obvious to me that the pressure brought upon her by her husband caused her to vote exactly the way he wanted her to;
7. During deliberations, the jury became aware from outside sources that life imprisonment did not mean life. As I re*699call, one of the jurors had a family member that either worked at the courthouse or was involved in the law in some way. According to the juror’s spouse or family member, a life sentence meant that the person would be paroled in 20-25 years. We discussed how Mr. Fullwood had already been in jail since the murder and that given credit for the time he had been in that he would be released on a life sentence in another 10-15 years. That Mr. Fullwood would be paroled and back on the streets was a significant factor in our not sentencing him to life in prison. In addition, because of the possibility of parole if Mr. Fullwood was given a life sentence, we did not give much consideration to the mitigating evidence. The things that Mr. Fullwood had done since being in prison were virtually meaningless because they supported a life sentence and we weren’t going to give life when it meant he would be paroled and be back on the streets;
8. The jury was definitely subject to outside influences which included information that we were not provided during the trial. The outside information was used by us in our deliberations. I have not been threatened, coerced, or otherwise intimidated into making this statement. I have been given the opportunity to review this statement, to change anything that needed to be changed, and to make any additions and/or deletions I deemed proper.
Furthermore the affiant sayeth not. This the 13th day of February, 1998.
/§/
Laura Booth
STATE OF NORTH CAROLINA
COUNTY OF BUNCOMBE
Laura Booth did personally appear before me and being first duly sworn did depose and say that she had read the attached affidavit and that the information contained therein was true to the best of her knowledge.
This the 13th day of February, 1998.
/s/ John M. Purvis Notary Public
My Commission Expires: 5/7/2002
. The Booth affidavit is appended hereto.
. In addition, as noted on direct appeal by the North Carolina Supreme Court, "defendant failed to exercise all of his peremptory challenges.”
. On habeas review of State v. Green, the federal district court affirmed the North Carolina Supreme Court's determination that the trial judge's decision denying defendant's motion to excuse the juror for cause, who had information about the previous conviction. Green v. French, 978 F.Supp. 242, 264 (E.D.N.C.1997), affirmed, 143 F.3d 865 (4th Cir.1998) (the current question' not discussed).
. I do not believe that this affidavit, particularly when provided by a juror with Miss Booth's background, sufficiently warrants a presumption of prejudice, which if not rebutted, requires an evidentiary hearing.