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Barnes v. Joyner

United States Court of Appeals, Fourth Circuit

May 5, 2014

WILLIAM LEROY BARNES, Petitioner - Appellant,
v.
CARLTON JOYNER, Warden, Central Prison, Raleigh, North Carolina, Respondent - Appellee

Argued: January 29, 2014.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. (1:08-cv-00271-TDS-JEP). Thomas D. Schroeder, District Judge.

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.

Before AGEE, FLOYD, and THACKER, Circuit Judges. Judge Thacker wrote the opinion, in which Judge Floyd joined. Judge Agee wrote a dissenting opinion.

OPINION

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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 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.

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

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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 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 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.

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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.

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

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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, 345 N.C. 184, 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 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, 118 S.Ct. 1309, 140 L.Ed.2d 473 (1998).

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]

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

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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 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 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.

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

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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 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, 362 N.C. 239, 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 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. [WL] 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)

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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, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Moreover, because we are engaging in collateral review of a state court adjudication, our 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]

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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (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, 134 S.Ct. 1697, 188 L.Ed.2d 698, 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

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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 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, 111 S.Ct. 1246, 113 L.Ed.2d 302 (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, 113 S.Ct. 1710, 123 L.Ed.2d 353 (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, ...


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