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Barnes v. Thomas

United States District Court, M.D. North Carolina

August 2, 2018

WILLIAM LEROY BARNES, Petitioner,
v.
EDWARD THOMAS, [1] Warden, Central Prison, Raleigh, North Carolina Respondent.

          MEMORANDUM OPINION AND ORDER

          Thomas D. Schroeder United States District Judge.

         Petitioner William Leroy Barnes (“Barnes” or “Petitioner”) brings this habeas proceeding under 28 U.S.C. § 2254, challenging his underlying conviction and death sentence resulting from his role in the 1992 murders of B.P. and Ruby Tutterow. This case returns to the court on remand from the Court of Appeals for the Fourth Circuit with instructions to conduct an evidentiary hearing with respect to Barnes's allegations of juror misconduct during the sentencing phase of his trial. Barnes's petition was referred to the United States Magistrate Judge, who held an evidentiary hearing and entered a Recommendation to deny the petition. (Doc. 54.) Notice was served on the parties, and Barnes filed timely objections. (Doc. 58.) Barnes also moves for the appointment of substitute counsel. (Docs. 59, 60.)

         After a thorough review and for the reasons set forth below, the court now adopts the Recommendation, as modified herein, denies Barnes's petition, and denies his motion to appoint substitute counsel.

         I. BACKGROUND

         In 1994, Barnes was convicted of first-degree murder and sentenced to death following a trial in the Superior Court of Rowan County, North Carolina. Barnes sought to challenge his sentence and underlying conviction on multiple grounds, including raising a claim of juror misconduct arising from a juror's alleged communication with her pastor during the sentencing phase of the proceedings. The Supreme Court of North Carolina affirmed Barnes's conviction and sentence on direct appeal. State v. Barnes, 345 N.C. 184, 481 S.E.2d 44 (1997), cert. denied, 523 U.S. 1024 (1998).

         In February 1999, Barnes sought state post-conviction relief on several grounds by filing a motion for appropriate relief (“MAR”) in Rowan County Superior Court. In his MAR petition, Barnes reasserted his claim of juror misconduct and presented additional evidence to support his claim that a sitting juror, Hollie Jordan (“Juror Jordan”), improperly communicated with her pastor during sentencing proceedings and then relayed information to the other jurors. On May 31, 2007, the state MAR court denied this claim without conducting a hearing, adopting the same reasoning as the Supreme Court of North Carolina. The Supreme Court of North Carolina subsequently denied review. See State v. Barnes, 362 N.C. 239, 660 S.E.2d 53 (2008).

         Barnes filed his present petition on April 17, 2008. (Doc. 1.) On March 28, 2013, this court denied his petition but granted a certificate of appealability with respect to the single issue involving alleged juror misconduct. (Doc. 28 at 56.) On appeal, a divided panel of the Fourth Circuit held that the MAR court unreasonably applied clearly established federal law, as determined by the Supreme Court of the United States, by denying Barnes's juror misconduct claim without applying a presumption of prejudice and holding an evidentiary hearing pursuant to Remmer v. United States, 347 U.S. 227 (1954). Barnes v. Joyner, 751 F.3d 229, 252 (4th Cir. 2014). The Fourth Circuit remanded the case “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.” Id. at 253.

         The magistrate judge held an evidentiary hearing during which Barnes presented four witnesses: Juror Jordan, Janine Fodor, [2] Ardith Peacock (“Juror Peacock”), and Leah Weddington (“Juror Weddington”). (Doc. 47.) Respondent did not present any witnesses. After thoroughly reviewing the evidence and relevant testimony from the evidentiary hearing, the magistrate judge issued a Recommendation denying Barnes's claim. (Doc. 54.) Barnes now objects to several aspects of the Recommendation. (Doc. 58.)[3]After the magistrate judge issued her Recommendation, Barnes filed a pro se motion requesting that the court appoint substitute counsel. (Docs. 59, 60.)

         The court will first address Barnes's objections to the Recommendation before considering his motion for substitute counsel. Because the facts underlying Barnes's conviction, post-conviction proceedings, and evidentiary hearing are set forth in the Recommendation, they will be repeated here only insofar as necessary to address the objections raised.

         II. ANALYSIS

         A. Objections to Recommendation

         Barnes raises several objections to the Recommendation. He first objects to the magistrate judge's “incomplete characterization” of the circumstances that gave rise to Juror Jordan's communications with her pastor, Tom Lomax (“Pastor Lomax”), [4] as well as the characterization of Jordan's communication with him and with the other jurors. (Doc. 58 at 2, 7.) Barnes also objects to the magistrate judge's finding that the state court's error in failing to apply the Remmer presumption was harmless, arguing that the magistrate judge failed to appropriately consider the evidence regarding Juror Jordan's communication with her pastor as well as the evidence in his case. (Doc. 58 at 14, 18.)

         When considering a magistrate judge's report and recommendation, a district court must conduct a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). In doing so, the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Fourth Circuit has recognized that “a ‘de novo determination' is not necessarily the same as a de novo hearing and that the decision to rehear testimony is within the sole discretion of the district judge, even as to those findings based on the magistrate's judgment as to the credibility of the witnesses before [her].” Proctor v. State Gov't of N. Carolina, 830 F.2d 514, 518 n.2 (4th Cir. 1987) (citing United States v. Raddatz, 447 U.S. 667 (1980)). The district court must review the entire record, including the transcript, to determine whether the magistrate judge's findings are adequately supported by the record. See Johnson v. Knable, 1991 WL 87147, at *1 (4th Cir. 1991) (per curiam); United States v. Mallicone, No. 5:17-CR-9, 2017 WL 3575894, at *2 (N.D. W.Va. Aug. 18, 2017) (“[T]he first step is for the district judge to review the record, including the transcript, and to determine whether the entire record supports the magistrate judge's findings. If the magistrate judge's findings are supported by the record, the finding can be adopted by the district judge.” (quoting United States v. Jones, 2011 WL 2160339, *5 (C.D. Ill. June 1, 2011)). Where a party fails to object to a recommendation, however, the court's review is for clear error. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         As to the governing law, the Fourth Circuit stated, “[i]t 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.” Barnes, 751 F.3d at 240 (collecting cases). The Supreme Court in 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 allegation of communications or contact between a third party and a juror concerning the matter pending before the jury.” Id. at 242. In this case, the Fourth Circuit ultimately concluded that the state MAR court unreasonably applied clearly established federal law, as determined by the Supreme Court, by denying Barnes's juror misconduct claim without applying a rebuttable presumption of prejudice and ordering an evidentiary hearing. Id. at 251-52.

         Nevertheless, “principles of comity and respect for state court judgments preclude federal courts from granting habeas relief to state prisoners for constitutional errors committed in state court absent a showing that the error ‘had a substantial and injurious effect or influence in determining the jury's verdict.'” Richmond v. Polk, 375 F.3d 309, 335 (4th Cir. 2004) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). As the Fourth Circuit 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.” Barnes, 751 F.3d at 252 (quoting Hall v. Zenk, 692 F.3d 793, 805 (7th Cir. 2012)). Within the context of a federal habeas proceeding, however, “Barnes will not be entitled to the Remmer presumption” and must “affirmatively prove actual prejudice by demonstrating that the jury's verdict was tainted by the extraneous communication between Juror Jordan and Pastor Lomax.” Id. at 252-53.

         A habeas petitioner is entitled to relief if the court is in “grave doubt” as to the harmlessness of the error. O'Neal v. 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' [sic] regarding the error's harmlessness.” Barnes, 751 F.3d at 252 (quoting Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir. 2002)). In North Carolina, a court may not impose the death penalty unless the jurors unanimously agree to such a sentence. N.C. Gen. Stat. § 15A-2000(b). Thus, the court must determine whether it can say “with fair assurance” that the judgment was “not substantially swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 765 (1946); Allen v. Lee, 366 F.3d 319, 345 (4th Cir. 2004) (Gregory, J., concurring) (noting the court must “assess whether [it] can say ‘with fair assurance,' that not a single resolute juror would have voted for a life sentence.” (quoting Kotteakos, 328 U.S. at 765)).

         In determining whether extraneous information that reached the jury was likely to have prejudiced a defendant, the court may consider several factors, including the nature of the extraneous information, the manner in which it reached the jury, and the strength of the State's evidence. Hall, 692 F.3d at 806-07 (“But in deciding whether extraneous information that reached the jury was likely to have prejudiced a defendant, there is more to consider than just the nature of the extraneous information; a court may also consider, among other things, the power of any curative instructions, and the strength of the legitimate evidence presented by the State.” (internal brackets and citations omitted)); McNeill v. Polk, 476 F.3d 206, 226 (4th Cir. 2007) (King, J., concurring) (considering similar factors in determining whether petitioner was actually prejudiced by jury's use of dictionary definition (citing Mayhue v. St. Francis Hosp. of Wichita, Inc., 969 F.2d 919, 924 (10th Cir. 1992)); McNair v. Campbell, 416 F.3d 1291, 1307-08 (11th Cir. 2005) (noting relevant factors include “the nature of the extrinsic evidence, how the evidence reached the jury, and the strength of the State's case”).

         1. Communication between Juror Jordan and Pastor Lomax

         Barnes raises several objections to the magistrate judge's characterization of Juror Jordan's communication with her pastor and subsequent communication to the other jurors. Barnes first claims that the magistrate judge failed to consider the circumstances that gave rise to Juror Jordan's communications. Barnes contends that the argument about the Bible and the jurors' own salvation made by co-defendant Frank Junior Chambers's defense attorney during his closing argument was precipitated by the closing argument of the prosecutor[5] and thus placed competing arguments before the jury about how the Bible should inform the juror's decision on whether to impose the death penalty. (Doc. 58 at 6.) Barnes argues that the jury was composed of “very religious” people[6] and at least one juror was “visibly upset” by the closing argument by Chambers's counsel. (Doc. 58 at 6 (citing Doc. 12-3 at 12).)[7] He further notes that Juror Jordan, whom Barnes characterizes as a “true believer, ” testified that her church “[p]layed a big role in her life” and she considered Pastor Lomax to be her spiritual guide and leader. (Id. at 5 n.4 (citing Doc. 54 at 11.) Relying on the Fourth Circuit's decision in this case, Barnes contends that “[a]gainst this backdrop, Jordan's improper communications with her pastor were both about the subject matter before the jury and tainted the jury verdict.” (Id. at 6 (emphasis added).)

         However, Barnes conflates the Fourth Circuit's finding that the state court's adjudication of his juror misconduct claim was “an unreasonable application of clearly established federal law” with the independent inquiry into whether the error “actually prejudiced” him. Barnes, 751 F.3d at 252 (quoting Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011)). As the magistrate judge noted, the Fourth Circuit's decision focused on the first prong of this inquiry and expressly stated that based on the record presented it was “unclear whether Barnes can demonstrate actual prejudice or whether the MAR Court's unreasonable application of federal law was harmless.” Id. at 252. To the extent that the magistrate judge may have failed to consider the nature of the closing argument made by the prosecutor, the court finds that it would not alter the outcome in this case.

         Barnes also objects to the magistrate judge's finding that “[t]here is no evidence that Pastor Lomax knew any details regarding the facts of the case or gave any advice or statement to what jurors should do or the verdict they should return.” (Doc. 54 at 19.) Barnes notes that Juror Jordan testified that she told him she was on a jury and mentioned the “horrific” crime scene pictures that were introduced during the closing argument. (Doc. 47 at 50-51.) However, the magistrate judge explicitly acknowledged this testimony in making her factual finding. (Doc. 54 at 19.) Moreover, Juror Jordan testified that she “just told him that the pictures were horrific” and “didn't specify which pictures.” (Doc. 47 at 50-51.) To the extent that Pastor Lomax was made aware of some facts regarding the case, it is true that there is no evidence that he “gave any advice or statement to what jurors should do or the verdict they should return” (Doc. 54 at 19); rather, he told Juror Jordan that the jurors would not burn in hell and “we had to live by the laws of the land.” (Doc. 47 at 51.)

         Barnes next objects to the Recommendation's finding that “there is no evidence that [Pastor Lomax] attempted to persuade Juror Jordan to vote for or against the death penalty, or that he suggested the Bible supported a particular sentence.” (Id. at 19.) Barnes challenges the magistrate judge's characterization that the juror spoke with her pastor for “a few minutes” about the trial, noting that Jordan testified that she met with the pastor for “roughly an hour or two” and spent “15 to 30 minutes” discussing the Bible verses with the jurors. (Doc. 58 at 7-8.) He charges that it “defies common sense” to assume that most of the “roughly two hour conversation” centered on “family” and “other things, ” as Juror Jordan testified. (Id. at 8.) Barnes also points out that Juror Peacock testified that one of the Bible passages Jordan read was “an eye for an eye and a tooth for a tooth.” (Id. at 9.) Barnes contends that “[i]nasmuch as the closing argument of Chambers' attorney was undeniably against the imposition of the death penalty, the Bible verses that rebutted this closing argument are ipso facto in favor of the death penalty.” (Id. at 13.)

         As to timing, it is Barnes who seeks to reject the only record evidence and thus speculate that Juror Jordan's conversation with her pastor lasted “roughly two hours” and concerned mostly a discussion about the case. Juror Jordan testified that her conversation regarding the case lasted “[j]ust the few minutes that [she] asked him would we burn in hell and he said no, we had to live by the laws of the land.” (Doc. 47 at 51.) She testified that “[h]e told me some scriptures in the Bible, you know, that explained everything.” (Id.) Otherwise, the remainder of the conversation was about “family” and “other things.” (Id. at 51-52.) In the absence of further cross-examination (which was available) or other testimony (which was not elicited), the magistrate judge's finding is well-supported by the record.

         Here, the evidence indicates that Juror Jordan offered the Bible verses to rebut the closing argument by Chambers's attorney. (Doc. 12-3 at 12; Doc. 47 at 54-55.) Juror Weddington testified during the evidentiary hearing that she recalled a female juror reading Bible verses out loud during the jury's sentencing deliberations but could not recall ...


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