court denies the petition for rehearing and rehearing en
requested poll of the court failed to produce a majority of
judges in regular active service and not disqualified who
voted in favor of rehearing en banc. Chief Judge Gregory,
Judge Motz, Judge King, Judge Keenan, Judge Wynn, Judge Diaz,
Judge Floyd, Judge Thacker, and Judge Harris voted to deny
rehearing en banc. Judge Wilkinson, Judge Niemeyer, Judge
Agee, Judge Richardson, Judge Quattlebaum, and Judge Rushing
voted to grant rehearing en banc.
Wynn submitted a statement concurring in the denial of
rehearing en banc. Judge Agee and Judge Wilkinson each
submitted statements dissenting from the denial of rehearing.
These statements are attached to this order.
at the direction of Judge Floyd.
Circuit Judge, concurring in the denial of rehearing en banc:
question in this case is whether juror misconduct-seeking the
religious advice of a pastor about the death penalty during
jury deliberations and then relaying that communication to
fellow jurors-had a substantial and injurious effect or
influence on the jury's decision to impose the death
penalty on Petitioner Barnes. The question is not what legal
standard applies. See Brecht v. Abrahamson, 507 U.S.
619, 638 (1993) ("[W]e hold that the Kotteakos
[v. United States, 328 U.S. 750 (1946)]
harmless-error standard applies in determining whether habeas
relief must be granted because of constitutional error of the
trial type."). And the question is not whether this
Court's previous decision in Barnes' favor was
incorrect. Barnes v. Joyner, 751 F.3d 229 (4th Cir.
2014) (hereinafter Barnes I). And the question is
not whether, systemically, federal courts grant too much
habeas relief. Habeas relief does not operate on a quota
to be absolutely clear: The question in this case is whether
juror misconduct-seeking the religious advice of a pastor
about the death penalty during jury deliberations and then
relaying that communication to fellow jurors-had a
substantial and injurious effect or influence on the
jury's decision to impose the death penalty on Petitioner
facts show that it did.
panel majority opinion presented a compelling account of what
transpired. In a North Carolina court, a jury found
Petitioner Barnes guilty of first-degree murder. Barnes
v. Thomas, 938 F.3d 526, 529 (4th Cir. 2019)
(hereinafter Barnes II). At closing arguments in the
sentencing phase, an attorney representing a co-defendant
argued that the jury, if it imposed the death penalty, would
be judged by God for violating one of the ten commandments,
specifically, "Thou shalt not kill." Id.
(quoting J.A. 1532). One of the jurors, Hollie Jordan, was
offended by the argument and saw that another juror looked
upset. Id. at 530. After the first day of
deliberations, before the jury had reached a decision, Juror
Jordan discussed the case-including a discussion of pictures
of the crime scene- with her pastor and asked if the jurors
would "burn in hell" if they imposed a death
sentence. Id. at 531 (quoting J.A. 2269). She asked
this question despite allegedly having already decided to
vote for the death sentence. Id. at 532. The pastor
replied that the jurors would not burn in hell, gave her
Bible verses to support his opinion, and told Juror Jordan
that the jurors "had to live by the laws of the
land." Id. at 531-32 (quoting J.A. 2271).
very next day, Juror Jordan spoke with her fellow jurors
about her conversation with the pastor. Id. at 532.
She relayed to them that they would not "burn in
hell," and she read the Bible verses her pastor had
suggested. J.A. 2274. Another juror testified that she
thought Juror Jordan "was trying to convince someone to
-- it was okay to give him the death
penalty." J.A. 2295. The jury subsequently voted to
impose the death penalty.
unmistakable import of these facts is that Juror Jordan
sought out her pastor's opinions about the death penalty
and then presented those opinions to her fellow jurors for
the purpose of influencing another juror's vote. She
solicited an authoritative outside opinion about sentencing,
and the pastor gave her one. The prejudice is clear and meets
the standard of "grave doubt" and "virtual
equipoise." Barnes II, 938 F.3d at 534, 536
(quoting Lawlor v. Zook, 909 F.3d 614, 634 (4th Cir.
the dissent contends that "the record here shows only a
conversation that did not touch upon Barnes' guilt or the
appropriate sentence." Dissent of Agee, J.,
infra at 14. The argument is that the pastor's
communication was "of such a neutral and tangential
nature to the issue before the jury that it could not have
had an 'injurious effect or influence' on the
jury's sentencing decision." Barnes II, 938
F.3d at 540 (Agee, J., dissenting) (quoting Brecht,
507 U.S. at 627). This requires accepting that the
conversation about burning in hell for imposing the death
penalty was not about the death penalty. See Dissent
of Agee, J., infra at 14 ("Nor is there any
evidence that the pastor opined about the morality of the
death penalty generally . . . . [T]he conversation was
limited to whether serving on a jury faced with the decision
between life imprisonment and the death penalty may result in
the juror 'burn[ing] in hell.'" (quoting J.A.
simply, this part of the dissenting opinion's analysis
divorces answer from question. The question of going to hell
for imposing a sentence was not neutral and tangential to
sentencing. It was a question ...