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Barnes v. Thomas

United States Court of Appeals, Fourth Circuit

September 12, 2019

WILLIAM LEROY BARNES, Petitioner - Appellant,
EDWARD THOMAS, Warden, Central Prison, Raleigh, North Carolina, Respondent - Appellee.

          Argued: May 8, 2019

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


          M. Gordon Widenhouse, Jr., RUDOLF WIDENHOUSE, 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, Asheville, North Carolina, for Appellant.

          Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

          Before AGEE, FLOYD, and THACKER, Circuit Judges.


         More than 20 years ago, Petitioner William Leroy Barnes was convicted of murder in North Carolina state court and sentenced to death. Following the trial, Barnes sought to overturn his death sentence, claiming that during sentencing deliberations, a juror improperly consulted with her pastor about whether she could vote to impose the death penalty without running afoul of her religious beliefs. She then relayed his guidance to the entire jury. Barnes' juror misconduct claim made its way through the North Carolina state courts, culminating in a final denial in state post-conviction proceedings. On Barnes' first federal habeas appeal, we held that the post-conviction court violated clearly established federal law by failing to afford Barnes a presumption of prejudice and an evidentiary hearing on his juror misconduct claim, as required by Remmer v. United States, 347 U.S. 227, 229 (1954). We remanded for an evidentiary hearing to determine if this error resulted in actual prejudice, thus warranting habeas relief. We now hold that it did.


         William Leroy Barnes, an inmate on North Carolina's death row, appeals the district court's second denial of his petition for writ of habeas corpus against Edward Thomas, Warden of the Central Prison in Raleigh, North Carolina (hereinafter the "State"). In 1994, Barnes was convicted of first-degree murder in North Carolina state court for the deaths of B.P. and Ruby Tutterow. After Barnes was found guilty, the trial proceeded to the sentencing phase, where the jury was charged with determining whether Barnes and his two codefendants would be sentenced to death or life imprisonment. During closing arguments of the sentencing phase, an attorney representing Frank Chambers, one of Barnes' codefendants, made religiously charged statements about a juror's choice to impose the death sentence:

Surely, one among you believes in God, the father, the son, the Holy Ghost, the teachings of Jesus Christ. And if you do, you know that Frank Chambers will have two judgment days. The one he's got today, where you sit as his judge, and you determine what happens with his earthly life. . . . [I]f you are a true believer, you know that he will have a second judgment day. . . . On that day, he will be judged not by the law of man, but by a higher law, the laws of God. . . . 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. 1530-33.

         These statements were presented with no interjection from the prosecution or the trial court. The next day, the jury recommended that Barnes be sentenced to death. Immediately after the jury returned its sentencing recommendation and exited the courtroom, Barnes' attorney alleged to the trial court that one of the jurors had met with her pastor to discuss the death penalty during sentencing deliberations and had relayed the pastor's counsel to the other jurors. The trial court denied Barnes' request to inquire further into the matter, and Barnes appealed to the Supreme Court of North Carolina. The state supreme court denied relief, holding 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 1999, Barnes sought state post-conviction relief by filing a Motion for Appropriate Relief (MAR) in Rowan County Superior Court (the "MAR Court"), in which he reasserted his juror misconduct claim, among others. With the motion, Barnes presented new information to further corroborate his juror misconduct claim. For example, Barnes introduced a summary of a 1995 interview his direct appeal team conducted with the juror accused of misconduct, Hollie Jordan (hereinafter "Juror Jordan"). Juror Jordan signed the summary and acknowledged that it was an accurate representation of the interview. According to the summary, Juror Jordan was offended by the religiously charged closing arguments, and although she "'did not accept the attorney's argument,' she did notice 'that another juror, a female, seemed visibly upset.'" Barnes v. Joyner, 751 F.3d 229, 235 (4th Cir. 2014) (hereinafter Barnes I) (quoting interview summary). "'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. (quoting interview summary).

         The MAR Court summarily denied Barnes' juror misconduct claim as "procedurally barred and without merit" because the issue had been previously addressed and rejected by the Supreme Court of North Carolina on direct appeal.[1] J.A. 1883. The Supreme Court of North Carolina denied Barnes' request for certiorari review.

         In 2008, Barnes filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he again raised his juror misconduct claim. Barnes argued that under Remmer v. United States, 347 U.S. 227 (1954), he was entitled to a presumption of prejudice and an evidentiary hearing upon presentation of a credible allegation of juror misconduct. A magistrate judge recommended that his juror misconduct claim be denied. After concluding that Barnes' claims did not require a hearing, the district court adopted the magistrate judge's recommendation and denied Barnes' habeas petition. Barnes then brought his first appeal.

         On our first review of this case, we concluded that the MAR Court's disposal of Barnes' juror misconduct claim amounted to an unreasonable application of Remmer v. United States, 347 U.S. at 229, which "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." Barnes I, 751 F.3d at 242. We distinguished Barnes' allegations of juror misconduct from cases in which we have held that an internal juror influence-i.e., a juror's own bias or communication with fellow jurors-does not implicate a defendant's Sixth Amendment right to an impartial jury. Id. at 245-46; see also Robinson v. Polk, 438 F.3d 350, 361-66 (4th Cir. 2006) (holding that juror's request for bailiff to bring Bible into jury room was not an external influence raising Sixth Amendment concerns because bailiff did not "instruct[] the jury to consult the Bible" or do "anything other than simply provide the Bible upon the juror's request"); Stockton v. Com. Of Va., 852 F.2d 740, 744 (4th Cir. 1988) (distinguishing between internal "juror impairment or predisposition" and the more serious danger of "extraneous communication"). Because Barnes credibly alleged an improper external influence on the jury, we held, the MAR Court erred in failing to apply a presumption of prejudice and afford Barnes a hearing. Barnes I, 751 F.3d at 247-48. However, because habeas relief is only warranted if the petitioner suffered actual prejudice as a result of the constitutional error, we remanded the case for the district court to conduct an evidentiary hearing "solely on the issue of whether the state court's failure to apply the Remmer presumption and failure to investigate Juror Jordan's contact with Pastor Lomax had a substantial and injurious effect or influence on the jury's verdict." Id. at 252.

         On remand, the parties held an evidentiary hearing before a magistrate judge. Barnes called four witnesses: Janine Fodor, Hollie Jordan, Ardith Peacock, and Leah Weddington. The State called no witnesses.

         During the evidentiary hearing, the parties raised several objections to certain testimony regarding the jurors' mental thought processes under Federal Rule of Evidence 606. The magistrate judge acknowledged that there were "gray areas," or confusion, as to how Rule 606 should apply to the hearing and allowed the State to maintain a standing objection. J.A. 2260. Even with this standing objection, however, the State made several Rule 606 objections throughout the hearing and engaged in extended colloquy with the magistrate judge on how to resolve the issue. See, e.g., J.A. 2283-90. The magistrate judge did not exclude any testimony during the hearing, itself, but gave the parties an opportunity to further address the issue in their post-hearing briefing.

         Barnes' first witness, attorney Janine Fodor, represented Barnes in his direct appeal. Fodor testified that while reviewing the trial record, she flagged Barnes' juror misconduct claim as an issue to raise on direct appeal. She then conducted interviews of some members of the jury and "asked about whether or not anybody remembered a juror contacting somebody or bringing a Bible into the jury room." J.A. 2255. Fodor testified that she interviewed Juror Jordan, who confirmed that she had contacted her pastor during sentencing deliberations and shared his thoughts with the jury.

         Barnes next called Hollie Jordan. Juror Jordan testified that when she was a juror for Barnes' capital murder trial, she attended Old Country Baptist Church where Tom Lomax was the pastor. She testified that she attended church "[e]very time the doors were open" and considered Pastor Lomax a spiritual guide. J.A. 2267-68. According to Juror Jordan, the closing arguments of Chambers' attorney "stood out" to her because he stated that "if [defendants] got the death sentence that [the jurors] would burn in hell." J.A. 2269. Juror Jordan testified that she "didn't know the Bible all that well then" and sought further counsel from Pastor Lomax on the first night of jury deliberations, before the jury had reached a sentence. J.A. 2269. Juror Jordan said she spoke with Pastor Lomax for "a couple hours probably," but only discussed the case with him for a "few minutes." J.A. 2270-71. She told him "how horrific the pictures [of the crime scene] were," J.A. 2270, and "asked him if we gave [defendants] the death sentence would we burn in hell." J.A. 2269. Pastor Lomax answered no and told her the jurors "had to live by the laws of the land." J.A. 2271. Juror Jordan testified that Pastor Lomax pointed her to "some scriptures in the Bible . . . that explained everything." J.A. 2271. She testified that although she "was worried" that the jurors were "going to die because [they were] killing [the defendants]," she felt better after speaking with Pastor Lomax. J.A. 2272. Juror Jordan testified that she returned to the jury room the following day and spoke with her fellow jurors for 15 to 30 minutes about her conversation with Pastor Lomax.

         In response to a question posed by Barnes' counsel, Juror Jordan also noted that when she spoke with Pastor Lomax, she had already "made up in [her] mind" on the sentence she was going to vote for; she "just wanted to know if [she] was going to burn in hell for it." J.A. 2272. Barnes moved to strike this statement under Federal Rule of Evidence 606. In its report and recommendation, the magistrate judge agreed with Barnes that the "juror's mental thought processes should not be considered" and did not consider this response. J.A. 2390. The district court likewise did not consider the statement.

         Barnes next called Ardith Peacock (hereinafter "Juror Peacock"), another juror in Barnes' trial. Juror Peacock testified that on the second day of sentencing deliberations, Juror Jordan brought a Bible into the jury room and read several passages aloud. While she did not recall the specific passages that Juror Jordan read, she remembered that one dealt with an "eye for an eye and tooth for a tooth." J.A. 2281. Juror Peacock testified that Juror Jordan did not say, specifically, whether the verses were intended to advocate for or against the death penalty. But she agreed with Barnes' counsel's statement that Juror Jordan brought the passages to the jury's attention in order to rebut the religious statements made during the sentencing phase of trial.

         Barnes next called Leah Weddington (hereinafter "Juror Weddington"), another juror at Barnes' trial. Juror Weddington testified that she recalled a female juror reading passages from a Bible in the jury room but did not recall the name of the juror or the specific passages that were read. When asked what may have prompted the juror to read the verses in the jury room, Juror Weddington responded "I guess she was trying to convince someone to-it was okay to give him the death penalty." J.A. 2295.

         Following the evidentiary hearing, the magistrate judge issued a report and recommendation concluding that juror misconduct did not have a substantial and injurious effect on the outcome of Barnes' case. With regard to the Rule 606 issue, as noted, the magistrate judge excluded Juror Jordan's testimony that she would have voted to impose the death penalty regardless of Pastor Lomax's advice. However, the magistrate judge also noted that the State "did not address [its Rule 606 objections] with any additional authority or specificity" in its post-hearing briefing and the testimony to which the State objected "appear[ed] to fall within the exceptions in Fed.R.Evid. 606(b)(2)(A) and (B)." J.A. 2390. The magistrate judge therefore overruled the State's Rule 606 objections. The district court held that the magistrate judge did not err in these evidentiary rulings.

         In concluding that Barnes had not shown actual prejudice, the magistrate judge reasoned that there was no evidence Pastor Lomax had expressed his views on the death penalty or attempted to persuade Juror Jordan to vote for or against it. The magistrate judge reasoned that evidence did not indicate that Juror Jordan explicitly told the other jurors whether the passages she read were for or against imposing the death penalty. J.A. 2397 ("[T]he passages were related to Pastor Lomax's limited statement to Juror Jordan that the jurors would not 'burn in hell' and that they should follow the law."). Moreover, the magistrate judge noted, aggravating factors against Barnes likely factored more heavily into the jury's decision than Juror Jordan's communication with Pastor Lomax. The district court once again adopted the magistrate judge's report and recommendation and denied habeas relief. Barnes again appeals to this Court.


         We review the district court's denial of Barnes' habeas petition de novo. See Bauberger v. Haynes, 632 F.3d 100, 103 (4th Cir. 2011).



         We concluded in Barnes I that the MAR Court's failure to properly apply the Remmer presumption and allow Barnes a hearing "involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." Barnes I, 751 F.3d at 238 (quoting 28 U.S.C. § 2254(d)(1)). However, "we are not permitted to grant habeas relief unless we are convinced that the error had a substantial and injurious effect"-otherwise known as actual prejudice-on the jury's sentence recommendation.[2] See Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir. 2002) (internal quotation marks omitted). "[A] state court's failure to apply the [Remmer] presumption only results in actual prejudice if the jury's verdict was tainted" by the external communication. Barnes I, 751 F.3d at 253 (quoting Hall v. Zenk, 692 F.3d 793, 805 (7th Cir. 2012)). Therefore, while the constitutional error in this case lies with the MAR Court's failure to properly apply Remmer, in assessing actual prejudice, we look to the effect of Juror Jordan's external communication on the jury's sentencing decision.

         The substantial and injurious effect standard used to determine harmlessness on habeas appeal comes from the Supreme Court's decision in Kotteakos v. United States,328 U.S. 750 (1946).[3] That case instructs us to look to "what effect the error had or reasonably may be taken to have had upon the jury's decision." Id. at 764. "If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand." Id. However, "[i]f the federal court is 'in grave doubt' about whether the trial error had a 'substantial and injurious effect or influence' on the verdict and therefore finds itself 'in virtual equipoise' about the issue, the error is not harmless." Lawlor v. Zook, 909 F.3d 614, 634 (4th Cir. 2018) (holding that state court's ...

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