Argued: May 8, 2019
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)
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.
B. Currin, Asheville, North Carolina, for Appellant.
H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.
AGEE, FLOYD, and THACKER, Circuit Judges.
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.
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
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.
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.
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).
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. J.A. 1883. The Supreme Court of North
Carolina denied Barnes' request for certiorari review.
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
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.
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.
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
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.
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
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
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.
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.
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.
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.
review the district court's denial of Barnes' habeas
petition de novo. See Bauberger v. Haynes, 632 F.3d
100, 103 (4th Cir. 2011).
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. 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.
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). 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 ...