concurring in part and concurring in the judgment:
I fully agree with Judge Shedd’s opinion with respect to the denial of McNeill’s ineffective assistance of counsel claims, and I concur (for different reasons) in the denial of relief on his juror misconduct claims.1 I part ways with my friend Judge Shedd at the point where he determines that the juror misconduct claims were procedurally defaulted. As I see it, these claims were not defaulted, because the MAR court’s rejection of them — on the basis that McNeill’s affidavits contained inadmissible evidence — was not premised on an adequate and independent state procedural rule. Accordingly, I find it necessary to assess the substance of the juror misconduct claims and, upon so doing, conclude, as did the MAR court, that they fail on their merits.2 In these circumstances, *219Judge Shedd and I ultimately reach the same result on the juror misconduct claims.
I.
First, as explained below, I would rule that McNeill’s juror misconduct claims were not procedurally defaulted because the State has not established that an adequate and independent procedural ground bars our review of their merits. Under the relevant doctrine, pursuit of a federal habeas corpus claim is barred when a state court has declined to address the claim because the petitioner failed to satisfy an adequate state procedural requirement. Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The Supreme Court has held that a “state procedural ground is not adequate unless the procedural rule is strictly or regularly followed.” Johnson v. Mississippi, 486 U.S. 578, 587, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) (internal quotation marks omitted). I will undertake to explain my position on the procedural default issue in further detail.
A.
As a threshold matter, our Court has never been called upon to squarely address the issue of which party to a federal habe-as corpus proceeding bears the burden of establishing the adequacy (or inadequacy) of a state procedural bar. In Robinson v. Polk, we indicated that the burden falls on the state, observing that, in the situation there presented:
The State has not cited, and we have not found, a single North Carolina decision squarely holding that the MAR must be accompanied by admissible evidence in order for the petitioner to demonstrate entitlement to an evidentiary hearing. ... Because it is not clear that North Carolina rules require a MAR to be accompanied by admissible evidence ... we cannot hold that [the petitioner’s] failure to submit admissible evidence demonstrates a lack of diligence before the MAR court.
438 F.3d 350, 367 (4th Cir.2006); accord Conaway v. Polk, 453 F.3d 567, 584 (4th Cir.2006) (“There is no authority under North Carolina law (nor has the State asserted any to us) requiring that such affidavits and documents themselves constitute admissible evidence.”). In McCarver v. Lee, however, we required the petitioner to make what we called a “colorable showing” that the asserted procedural bar “is not consistently and regularly applied,” by citing “a non-negligible number of cases” in which the procedural bar was not applied. 221 F.3d 583, 589 (4th Cir.2000); accord Reid v. True, 849 F.3d 788, 805 (4th Cir.2003) (“In order to demonstrate that [the rule] is inadequate in this particular instance, [the petitioner]’would need to cite a non-negligible number of cases in which [involuntary plea] claims could have been brought on direct review but were not, and in which the collateral review court nonetheless failed to bar the claim under [the rule].’ ”). At first glance, the principles underlying Robinson and McCarver are not entirely compatible, in that one rule (Robinson) would place the burden on the state, while the other (McCarver) would mandate that the petitioner make a “color-able showing” that the bar does not apply. See McCarver, 221 F.3d at 589; Robinson, 438 F.3d at 367.
Taking the view most favorable to the State in this proceeding, our court has *220almost — but not squarely — resolved the burden question. And our sister circuits that have addressed the issue disagree about where the burden should fall, with the majority deeming it to fall on the state. For example, the Tenth Circuit has determined that the state is ultimately responsible for proving the adequacy of a state procedural bar, reasoning that the bar constitutes an affirmative defense, and that the state is in the best position to establish the uniform application of a state procedural rule. Hooks v. Ward, 184 F.3d 1206, 1216-17 (10th Cir.1999).3 The court in Hooks observed, however, that the petitioner has the “responsibility to put the adequacy of the state procedural bar at issue before the state is required to come forward with its proof.” Id. at 1217. Under this burden-shifting framework,
[o]nce the state pleads the affirmative defense of an independent and adequate state procedural bar, the burden to place that defense in issue shifts to the petitioner. This must be done, at a minimum, by specific allegations by the petitioner as to the inadequacy of the state procedure. The scope of the state’s burden of proof thereafter will be measured by the specific claims of inadequacy put forth by the petitioner.
Id.
The Ninth Circuit found the Tenth Circuit’s reasoning in Hooks to be persuasive, also concluding that the ultimate burden of proving the adequacy of a state procedural bar lies with the state. See Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir.2003). In so ruling, the Bennett court adopted the burden-shifting framework spelled out in Hooks, holding that, once a procedural bar defense is raised by the state, the petitioner’s burden can be satisfied by “asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule.” Bennett, 322 F.3d at 586. If the petitioner can satisfy this minimal burden, the state then bears the ultimate burden of proving the adequacy of the state procedural rule. Id.
The Fifth Circuit, on the other hand, presumes the adequacy of a state procedural rule, but it allows the presumption to be rebutted if the state procedural rule is not “strictly or regularly followed.” See Sones v. Hargett, 61 F.3d 410, 416 (5th Cir.1995) (internal quotation marks omitted). Under the rebuttable presumption framework, “[t]he petitioner bears the burden of showing that the state did not strictly or regularly follow a procedural bar around the time of his direct appeal [and] has failed to apply the procedural bar rule to claims identical or similar to those raised by the petitioner himself.” Stokes v. Anderson, 123 F.3d 858, 860 (5th Cir.1997). The Second Circuit has taken a middle ground, assuming — without deciding — that “[b]ecause the procedural bar is a defense to a habeas claim, ... the state bears the burden of proving the adequacy of the state procedural rule.” Cotto v. Herbert, 331 F.3d 217, 238 n. 9 (2d Cir.2003).
In my view, the more sensible rule is the one espoused by the Ninth and Tenth Circuits, that is, that the burden of proving the adequacy of a state procedural bar ultimately falls on the state. Indeed, our *221decisions in McCarver and Robinson are readily reconcilable with the burden-shifting framework, in that, although McCarver requires that a petitioner make a “color-able showing” of the inadequacy of a state procedural rule, Robinson indicates that the ultimate burden of proving that such a procedural rule is adequate falls upon the state. See McCarver, 221 F.3d at 589; Robinson, 438 F.3d at 367. In this situation, McNeill has satisfied his minimal obligation under the burden-shifting framework, making a “colorable showing” of the inadequacy of the state procedural rule. He has done so by relying on decisions that assertedly support the proposition that the state procedural rule has not been applied in the manner necessary to render it an adequate procedural ground for denying relief. Whether we ultimately agree with McNeill on the merits of his contention need not be resolved, of course, at the “colorable showing” stage. And, in my view, an ample “colorable showing” has been made by McNeill in this case.4 I am content, however, in the context of this proceeding, to adhere to the procedure recently utilized by the Second Circuit. See Cotto, 331 F.3d at 238 n. 9 (“Because the procedural bar is a defense to a habeas claim, we assume without deciding that the state bears the burden of proving the adequacy of the state procedural rule.”).5
B.
I will thus assume, without deciding, that we would place the burden of establishing the adequacy of a state procedural rule on the state. On the basis of that assumption, I conclude that, in this proceeding, the State has failed to carry its burden of proving the adequacy of the procedural rule it seeks to apply against McNeill. Under the North Carolina statute at issue,
[a] motion for appropriate relief made after the entry of judgment must be supported by affidavit or other documentary evidence if based upon the existence or occurrence of facts which are not ascertainable from the records and any transcript of the case or which are not within the knowledge of the judge who hears the motion.
N.C. Gen.Stat. § 15A-1420(b)(l) (the “Statute”). The State contends that, un*222der the Statute, an MAR must be accompanied by an affidavit made by a declarant who has personal knowledge of the facts asserted. As in Robinson and Conaway, however, the State has not pointed to any North Carolina authorities explicitly establishing that the Statute so requires, and has been uniformly applied to so require. See Robinson, 438 F.3d at 367; Conaway, 453 F.3d at 584. The State instead relies on an inapposite opinion of this Court and an unrelated North Carolina procedural rule, neither of which supports its contention.
1.
First, the State urges us to import into our procedural default analysis an observation made in Burket v. Angelone that, in assessing the merits of a federal habeas corpus claim, “we do not sit to review the admissibility of evidence under state law unless erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding.” 208 F.3d 172, 186 (4th Cir.2000). The State’s reliance on this aspect of Burket, however, is misplaced. Before reaching the issue of whether the state habeas court properly excluded affidavits opposing dismissal of Burket’s ineffective assistance claims, we first ascertained that we were not precluded from reaching their merits by the state court’s ruling that Burket’s claims failed because of a Virginia procedural rule. Id. at 184. The asserted procedural rule was unrelated to the sufficiency of the affidavits, however, and simply precluded a ha-beas petitioner from challenging the truth and accuracy of his own statements concerning the adequacy of his trial counsel and the voluntariness of his guilty plea. See id. at 183 (citing Anderson v. Warden, 222 Va. 511, 281 S.E.2d 885, 888 (1981)).
Because we were unsure of the scope of Virginia’s procedural rule, we proceeded to address the merits of Burket’s ineffective assistance claims. See id. at 184. In assessing the merits of those claims, we emphasized the limited role of a federal habeas court in reviewing evidentiary determinations made by a state court. See id. at 186. Viewed in context, Burket does not support the State’s contention that we are barred from reviewing the merits of McNeill’s juror misconduct claims. Burk-et’s recognition of our limited role in reviewing state court evidentiary determinations went to our review of the merits of the claims in that case, not to an analysis of the procedural bar issue. See id.
2.
Second, the State’s procedural bar position relies on the North Carolina civil procedure rule (as well as the analogous federal rule) on summary judgment, which mandates that affidavits “be made on personal knowledge” and “show affirmatively that the affiant is competent to testify to the matters stated therein.” N.C. Gen. Stat. § 1A-1, R. 56(e); see also, Fed. R.Civ.P. 56(e). It is true, of course, that these rules explicitly require that such affidavits be made by a declarant with personal knowledge. It is far from clear, however, that the evidentiary standard applicable at the summary judgment level in civil proceedings is the standard to be applied to a motion to dismiss in a habeas corpus proceeding, or to an assessment of whether a habeas petitioner is entitled to an evidentiary hearing. Cf. Robinson, 438 F.3d at 367 (“[WJhether inadmissible evidence can be used at an evidentiary hearing is a different question from whether inadmissible evidence can support a claim for entitlement to an evidentiary hearing.”). I therefore fail to see how the explicit language used in the summary judgment rules — tellingly absent from the Statute here — supports the State’s position on the procedural bar issue.
*223Moreover, as we recognized in Cona-toay, “it would create a ‘classic catch-22 if an MAR defendant were obliged to submit admissible evidence to the MAR court in order to be accorded an evidentiary hearing, when the defendant is seeking the hearing because he cannot, without subpoena power or mechanisms of discovery, otherwise secure such evidence.’ ” 453 F.3d at 584. There is no apparent reason for us to stray from our recognition in Conaway that, in the absence of North Carolina law to the contrary, an MAR supported by affidavits that may arguably contain evidence deemed inadmissible does not fail on procedural grounds. See id. at 583-84.6
C.
Of course, as Judge Shedd notes, our Court has previously concluded that the Statute, to the extent it requires the filing of supporting affidavits with an MAR, constitutes an adequate and independent state procedural bar. See Richmond v. Polk, 375 F.3d 309, 323-24 (4th Cir.2004). Our previous determination that this aspect of the Statute is an adequate and independent state procedural rule does not, however, end our inquiry. See Reid, 349 F.3d at 805 (“[T]he fact that a state procedural rule is adequate in general does not answer the question of whether the rule is adequate as applied in a particular case.”). Importantly, our decision in Richmond was limited to deciding that the Statute was unambiguous in requiring that supporting affidavits be submitted with an MAR. See 375 F.3d at 323-24. The relevant facts here are readily distinguishable from those underlying our decision in Richmond. There, the petitioner presented no affidavits whatsoever supporting two of his ineffective assistance claims, and he submitted only a single affidavit with his third ineffective assistance claim, which failed to support that claim. Id. at 322. By contrast, McNeill complied with the statutory mandate, presenting and filing affidavits in support of both of his juror misconduct claims. The MAR court’s denial of McNeill’s claims on the ground that the affidavits contained evidence that it deemed inadmissible is a materially different ruling than the Richmond MAR court’s denial of relief on the ground that no supporting affidavits had been submitted. Richmond thus does not require us to accept the State’s contention that the Statute places a heightened evidentiary burden on a habeas corpus petitioner, or that the Statute has been uniformly applied in such a manner.
In my view, the State has failed to establish that the submission of admissible evidence in support of an MAR is required by the Statute, or that this asserted proce*224dural rule constitutes a “firmly established and regularly followed state practice.” Bacon v. Lee, 225 F.3d 470, 477 (4th Cir.2000) (internal quotation marks omitted). Absent the establishment of such a state procedural rule, McNeill’s juror misconduct claims are not proeedurally barred, and we are obligated to address them merits.
II.
Upon assessing the substance of McNeill’s juror misconduct claims as to Jurors Lee and Sermarini, I am satisfied that the MAR court’s denial of these claims on their merits was not an unreasonable application of clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1). First, McNeill is unable to establish that Juror Lee failed to honestly answer a material question, or that, even if the facts of his half-sister’s murder had been disclosed, Lee would have been subject to challenge for cause. Second, McNeill is unable to show any prejudice resulting from Juror Sermarini’s use of the dictionary definition of “mitigate.” I will explain my position on the juror misconduct claims in further detail.
A.
McNeill contends that Juror Lee’s failure to disclose during voir dire that his half-sister had been murdered by her boyfriend forty-seven years earlier, when Lee was nine years old, unconstitutionally infected McNeill’s trial jury, entitling him to federal habeas corpus relief. To be sure, the Supreme Court has long recognized that the Sixth Amendment precludes a biased juror from serving on a criminal jury. United States v. Wood, 299 U.S. 123, 133, 57 S.Ct. 177, 81 L.Ed. 78 (1936).7 In order to secure habeas corpus relief on this claim, however, McNeill is obliged to show that Juror Lee “failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” McDonough Power Equip. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984).8 McNeill’s claim on Juror Lee fails to satisfy the McDonough test, however, because he has not made the essential showings; that is, he cannot establish that Lee failed to honestly answer a material voir dire question, and he is unable to show that a complete response by Lee would have provided a valid basis for a challenge for cause.
1.
First of all, McNeill is unable to make the essential showing that Juror Lee failed to honestly answer a material voir dire inquiry. The law student affidavits and Juror Lee’s own affidavit do not establish that Lee failed to honestly answer a material voir dire question. Rather, they show only that Juror Lee inadvertently failed to provide any answer to an inquiry on whether a family member or close friend had been a crime victim. And Juror Lee’s failure to answer this question does not give rise to a presumption or inference *225that he responded dishonestly. As we have recognized, “McDonough provides for relief only where a juror gives a dishonest response to a question actually posed, not where a juror innocently fails to disclose information that might have been elicited by questions counsel did not ask.” Billings v. Polk, 441 F.3d 238, 245 (4th Cir.2006) (citing McDonough, 464 U.S. at 555, 104 S.Ct. 845). Importantly, a cursory review of the juror questionnaire reveals Lee’s failure to check either “yes” or “no” on the pertinent question, and McNeill’s defense lawyers were entitled to voir dire Juror Lee about his omission.9 As we have explained, “the right to challenge a juror is waived by failure to object at the time the jury is empaneled if the basis for the objection might have been discovered during voir dire.” Richmond v. Madison Mgmt. Group, Inc. 918 F.2d 438, 459 (4th Cir.1990) (internal quotation marks omitted). The record establishes that Juror Lee gave no “dishonest response” on voir dire and, at most, “innocently fail[ed] to disclose information” that the lawyers could readily have elicited on voir dire. McNeill is therefore unable to satisfy the first prong of McDonough.
2.
McNeill’s claim on Juror Lee also fails on McDonough’s second prong, in that he has failed to establish that an honest answer by Juror Lee would have provided him with a valid basis to challenge Lee for cause. Indeed, the fact that a juror or his close relative has been a crime victim is “only minimally relevant to the question of that juror’s impartiality.” United States v. Jones, 608 F.2d 1004, 1007 (4th Cir.1979). Although exclusion for cause “is more compelling when a juror is closely associated with a victim of the same type of offense as that being tried,” there is no per se rule of disqualification when a potential juror is merely related to a victim of a similar crime. Id. at 1008. Thus, the fact that Juror Lee’s half-sister had been murdered by her boyfriend when Lee was nine years old, forty-seven years before McNeill’s trial, does not, in and of itself, establish that Lee was a biased potential juror at McNeill’s trial. Importantly, the relationship between Juror Lee and his half-sister was, according to Lee’s affidavit, a substantially attenuated one: Lee’s half-sister had a different mother; she was seldom around when he was a child; and her death had little effect on him. Juror Lee also maintains that he knew very little about his half-sister’s death and that it had no influence on his service as a juror in McNeill’s trial. In these circumstances, the murder of Juror Lee’s half-sister nearly a half century earlier, even if it had been disclosed on voir dire, would not have provided McNeill with a valid basis to challenge Lee for cause.
McNeill is thus unable to establish either of the first two prongs of McDonough. It was therefore not unreasonable for the MAR court to conclude that the facts shown by affidavit are legally insufficient, under McDonough principles, to show that McNeill’s Sixth Amendment right to an impartial jury has been infringed. Thus, McNeill’s juror misconduct claim as to Juror Lee fails on its merits.
B.
McNeill’s second juror misconduct claim is that Juror Sermarini intentionally consulted a dictionary at his home during an overnight recess in the sentencing deliberations, seeking to ascertain the meaning of *226the term “mitigate,” to assist his decision as a juror and to influence other jurors. Generally, of course, once a verdict has been rendered, jurors are not entitled to impeach it. See Tanner v. United States, 483 U.S. 107, 117, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). This general prohibition is limited by the Sixth Amendment, however, which guarantees an accused the right to confront the witnesses against him. Robinson v. Polk, 438 F.3d 350, 359 (4th Cir.2006). Pursuant to Tanner, the Sixth Amendment does not mandate judicial consideration of juror misconduct allegations regarding influences internal to the deliberations process. See Robinson, 438 F.3d at 363. On the other hand, “[u]n-der clearly established Supreme Court case law, an influence is not an internal one if it ... is extraneous prejudicial information; i.e., information that was not admitted into evidence but nevertheless bears on a fact at issue in the case.... ” Id.
Juror Sermarini’s use of his home dictionary, in this setting, constituted an external, rather than an internal, influence. See United States v. Duncan, 598 F.2d 839, 866 (4th Cir.1979). As we recognized in Duncan, however, a juror’s reference to a dictionary will constitute juror misconduct, but it is not deemed prejudicial per se. See id. Other courts have agreed that a juror’s use of a dictionary is not an event that is inherently prejudicial. See, e.g., United States v. Henley, 238 F.3d 1111, 1115-16 (9th Cir.2001) (observing that certain juror misconduct, including use of dictionary definition, constitutes “more common and less pernicious extraneous influence on jury deliberations” than other more serious misconduct, such as attempted bribery). And it is generally accepted that, although a juror can testify that she consulted an extraneous influence and related her findings to the panel, neither she nor any other juror can testify about any effect the extraneous influence may have had on the verdict or on the jury deliberations. See Fed.R.Evid. 606(b); Mayhue v. St. Francis Hosp., Inc., 969 F.2d 919, 921 (10th Cir.1992). Thus, McNeill is obliged to establish that he was actually prejudiced, and he must do so without resort to an inquiry into the effect, if any, that Juror Sermarini’s dictionary definition may have had on the jury’s deliberations.
Importantly, there is no Supreme Court authority clearly articulating the specific circumstances under which an extraneous influence might prejudice a juror, and “each case must turn on its special facts.” See Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). In this regard, certain of our sister circuits have sought to articulate relevant factors for an assessment of when a jury’s use of a dictionary might be prejudicial. For example, the Tenth Circuit has determined that, in considering the possible prejudicial impact of a juror’s reference to a dictionary, a reviewing court should weigh the following:
(1) The importance of the word or phrase being defined to the resolution of the case. (2) The extent to which the dictionary definition differed from the jury instructions or from the proper legal definition. (3) The extent to which the jury discussed and emphasized the definition. (4) The strength of the evidence and whether the jury had difficulty reaching a verdict prior to introduction of the dictionary definition. (5) Any other factors that relate to a determination of prejudice.
Mayhue, 969 F.2d at 924.
In these circumstances, McNeill is unable to show that he was prejudiced by Juror Sermarini’s misconduct. The term “mitigate” was important to the resolution *227of McNeill’s sentencing trial, of course, because it was relevant to the question of whether he should receive the death penalty. And the jury discussed the definition at some length, according to Juror Ser-marini’s written and signed statement. His dictionary definition of “mitigate,” however, did not materially differ from the court’s instruction on the point. The definition of “mitigate” that Juror Sermarini obtained and shared with his fellow jurors was, according to a law student’s affidavit, “to cause to become less harsh or hostile.” J.A. 1085-86. The jury had already been instructed by the trial court that
[a] mitigating circumstance is a fact or group of facts which do not constitute a justification or excuse for a killing or reduce it to a lesser degree of crime than first degree murder, but which may be considered as extenuating or reducing the moral culpability of the killing or making it less deserving of extreme punishment than other first degree murders.
J.A. 900. A comparison of these two definitions makes it readily apparent that nothing in the dictionary definition proffered by Juror Sermarini is incompatible with the court’s instruction on mitigation. And, the jury in fact found eight mitigating factors in favor of McNeill (of the twenty-one presented for its consideration), suggesting that it grasped the meaning of “mitigate” provided by the court, and that its understanding of mitigation was not undermined by any external influence. Because McNeill is unable to establish any prejudice from Juror Ser-marini’s improper conduct, we are unable to say that the MAR court’s decision on the merits of this claim “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” U.S.C. § 2254(d)(1).
III.
Pursuant to the foregoing, I would rule that McNeill’s juror misconduct claims are not procedurally barred, and I disagree with Judge Shedd on this point. That being said, I would deny both juror misconduct claims on their merits. I thus join in the judgment denying relief on the juror misconduct claims and in Judge Shedd’s resolution of McNeill’s ineffective assistance claims, as spelled out in Part III.B of his opinion.
. In this proceeding, McNeill has been awarded a certificate of appealability on five of his constitutional claims. One of those claims, on sentencing instructions, has been rendered moot by the Supreme Court’s recent decision in Kansas v. Marsh, -U.S. -, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006). Of the remaining four claims, two involve ineffective assistance of counsel issues, and the other two involve juror misconduct issues centering, first, on Juror Lee’s failure to disclose his half-sister's murder and, second, on Juror Sermarini's consultation of a dictionary to learn the definition of “mitigate.” For convenience, I refer to these four claims by their respective categories — "ineffective assistance of counsel” and “juror misconduct.”
. The MAR court (the Superior Court of Cumberland County, North Carolina) denied McNeill's juror misconduct claims by Order of March 8, 2000, on two alternative bases. First, the court denied the claims as a matter of procedural law, relying on North Carolina General Statute section 15A-1420(b)(l). See Order 6, 8 (J.A. 1044, 1046). Second, the court denied both claims on their merits, as a matter of substantive law. See id. at 7, 9 (J.A. 1045, 1047). As the court observed in so doing, "[t]he procedural and substantive grounds for denial of [the claims] are inde*219pendent of each other, and each constitutes an independent and separate ground for denial of the claim.” Id. at 9 (J.A. 1047).
. A state procedural bar constitutes an affirmative defense in a federal habeas corpus proceeding that the state is obliged to either raise or lose. See Gray v. Netherland, 518 U.S. 152, 165-66, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996). And, as a settled general rule, the burden of proving an affirmative defense is on the party asserting it. See, e.g., Stonehenge Eng’g Corp. v. Employers Ins. of Wausau, 201 F.3d 296, 302 (4th Cir.2000); Girard v. Gill, 261 F.2d 695, 697 (4th Cir.1958).
. A "colorable claim” has been described as one that “is legitimate and that may reasonably be asserted, given the facts presented and the current law (or a reasonable and logical extension or modification of the current law).” Black’s Law Dictionary 196 (7th ed.2000). McNeill relied on several decisions for his allegation that North Carolina General Statute section 15A-l 420(b)(1), as applied, is not an adequate state procedural bar. For example, in Fullwood v. Lee, the MAR court reached the merits of a juror bias claim where the petitioner presented an affidavit containing inadmissible hearsay from another juror. 290 F.3d 663, 676-80 (4th Cir.2002). In these circumstances, McNeill has made, in my view, the necessary colorable showing.
. I disagree with Judge Shedd's contention that Robinson v. Polk has no bearing on McNeill’s argument that the Statute as applied here is not clearly established. Although Robinson did not involve a procedural default issue, it is instructive and relevant because it addresses the adequacy of the Statute and the issue of where the burden of proving such adequacy falls. In any event, the authority in our circuit suggests that this panel would be prudent to address the merits of McNeill’s juror misconduct claims. We have consistently deemed it appropriate to address the merits of a petitioner’s claim where we were uncertain whether a state procedural rule could be properly considered adequate and independent, without deciding where the burden falls. See Burket v. Angelone, 208 F.3d 172, 184 (4th Cir.2000) (reviewing merits of habeas corpus claims where scope of procedural bar was unclear); Bacon v. Lee, 225 F.3d 470, 477 (4th Cir.2000) (same); Royal v. Taylor, 188 F.3d 239, 248 (4th Cir.1999) (same).
. In my view, contrary to that of Judge Shedd, our opinion in Barnes v. Thompson does not preclude us from reaching the merits of McNeill's juror misconduct claims. See 58 F.3d 971 (4th Cir.1995). In Barnes, we observed that a federal habeas court "does not have license to question a state court's finding of procedural default, if based upon an adequate and independent state ground." Id. at 974 n. 2. This simple observation does not undermine the principle that, if we are uncertain of the scope of a state procedural rule, and unsure if it could be considered an "adequate and independent” ground, assessing the merits of a prisoner’s claim is appropriate. See Burket, 208 F.3d at 184. In other words, we need not blindly accept the MAR court's decision that McNeill failed to comply with the state procedural rule at issue, but instead must determine whether the procedural bar was an adequate and independent one. See id.; see also Bacon v. Lee, 225 F.3d 470, 477 (4th Cir.2000) ("[W]e must ... assure ourselves that the rule applied is a firmly established and regularly followed state practice.” (internal quotation marks omitted)); Royal v. Taylor, 188 F.3d 239, 248 (4th Cir.1999) (reviewing merits of habeas corpus claims where scope of procedural bar was unclear).
. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a ... trial [ ] by an impartial jury.” U.S. Const, amend. VI.
. A petitioner who can satisfy the first two prongs of the McDonough test is then also obliged to establish that "the juror’s 'motives for concealing information’ or the 'reasons that affect [the] juror’s impartiality can truly be said to affect the fairness of [the] trial.' ” Conaway v. Polk, 453 F.3d 567, 588 (4th Cir.2006) (quoting McDonough, 464 U.S. at 556, 104 S.Ct. 845). Because McNeill fails to satisfy the first two prongs of McDonough, I need not reach the third prong.
. I do not criticize McNeill’s defense lawyers for their actions in regard to Juror Lee. They may have possessed sound reasons for not making a follow-up inquiry on Juror Lee’s questionnaire responses.