David Balfour v. Carol Howes, 611 F. App'x 862

David Balfour was convicted in Michigan of first-degree murder and arson and sentenced to life without parole plus an additional term for arson.
Balfour alleged juror Julie Gunning failed to disclose relationships with two prosecutors; he supported the claim with affidavits alleging familiarity and a babysitting connection.
Michigan trial court and state appellate courts denied relief without an evidentiary Remmer hearing; federal district court granted a conditional habeas writ ordering a Remmer hearing within 90 days.
The state held a Remmer hearing 11 days before the deadline; Balfour’s counsel did not appear, he proceeded pro se, and the trial judge questioned Gunning and found her testimony credible.
The district court nevertheless granted an unconditional writ, citing the state’s failure to appoint counsel and failure to call the prosecutors as witnesses, concluding the hearing was a mere pro forma proceeding.
The Sixth Circuit reversed, holding the state complied with the conditional writ because it conducted a constitutionally adequate Remmer hearing allowing participation and questioning.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the state complied with district court's conditional writ requiring a Remmer hearing	Balfour: hearing was inadequate — no appointed counsel, prosecutors not called, so relief still warranted	State: held a timely evidentiary Remmer hearing; petitioner and state could question juror; remedy satisfied	Held: State complied; unconditional writ erroneously granted; reversal
Whether absence of counsel at Remmer hearing rendered it constitutionally inadequate	Balfour: denial of appointed counsel violated due process for the Remmer proceeding	State: Supreme Court has not recognized a right to counsel at Remmer hearings; no right to counsel for post‑conviction proceedings	Held: No federal constitutional right to counsel at Remmer hearing; failure to appoint counsel not a basis for habeas relief
Whether failure to call prosecutors at the hearing undermined its constitutionality	Balfour: prosecutors’ testimony was necessary to test juror credibility	State: Calling prosecutors not constitutionally required; juror testimony can be credited	Held: Not required; the hearing could be constitutionally adequate without calling prosecutors

Remmer v. United States, 347 U.S. 227 (1954) (requires a hearing allowing interested parties to participate when alleged juror bias arises)
Smith v. Phillips, 455 U.S. 209 (1982) (trial court may credit juror’s own testimony in assessing bias)
Coleman v. Thompson, 501 U.S. 722 (1991) (no constitutional right to counsel for state post‑conviction proceedings)
Estelle v. McGuire, 502 U.S. 62 (1991) (federal habeas does not reexamine state‑law procedural rulings)
Gentry v. Deuth, 456 F.3d 687 (6th Cir. 2006) (district court retains jurisdiction to determine compliance with conditional writ)
Patterson v. Haskins, 470 F.3d 645 (6th Cir. 2006) (standard of de novo review of district court’s compliance determination)
Mack v. Caspari, 92 F.3d 637 (8th Cir. 1996) (discusses circumstances where arbitrary application of state procedural rules can implicate due process)