Jerry Wayne Conner v. Marvin Polk, Warden, Central Prison, Raleigh, North Carolina

Co., Tire 890 F.2d & Rubber 655 n. 3 609(b)

(3d Cir.1989). Jerry Wayne CONNER, Rule But states that Petitioner- Appellant, under Evidence of a conviction this rule period is not admissible more years elapsed than has ten since the ...

date of the conviction unless the POLK, Warden, Marvin Prison, Central determines, in jus- court the interests of Raleigh, Carolina, North tice, that value probative of the con- Respondent-Appellee. supported specific viction facts and No. 04-23. substantially outweighs

circumstances prejudicial its effect. United Appeals, States Here, Dawson’s conviction was more than Fourth Circuit. years ten old. Argued: Feb. 2005. probative

We find that value of forgery evidence Dawson’s convic 3,May Decided: tion sufficiently small that the “inter justice” ests of did not warrant its admis

sion, and error in any refusing

admit harmless. See Colletti,

United States v. 984 F.2d (3d Cir.1992) (employing harmless- 609(b) context). analysis

error in the Rule

Two witnesses other Dawson testified times,

that Agnew sold crack numerous

and Agnew shortly as much admitted after found police crime. The cocaine in Likewise,

Agnew’s Agnew shoes. admit

ted gun that he knew that had “come

from” two named individuals “Nature” and

“Light,” police and a officer testified that

drug commonly keep guns dealers at their Indeed,

disposal. already

learned that used crack Dawson cocaine.

It question would not have resolved the

ownership drugs in gun favor of

Agnew simply it also because learned that forgery

Dawson had an old conviction. stated,

For the we reasons will AF- However,

FIRM the conviction. we will

vacate the sentence and remand for resen-

tencing with Booker. accordance Rose,

ARGUED: Kenneth Justin Center Inc., Penalty Dur- Litigation, For Death ham, Carolina, Appellant. North for Ste- Attor- Arbogast, Special Deputy ven Mark General, Department ney North Carolina Carolina, Justice, for Raleigh, North BRIEF: Mark J. Kleinsch- Appellee. ON midt, Penalty Litiga- For Death Center Durham, Carolina, tion, Inc., North for Attorney Appellant. Roy Cooper, General Carolina, Raleigh, North Car- of North olina, Appellee. for LUTTIG, KING, SHEDD, Before Judges. Circuit opinion. Judge by published Affirmed majority opinion, in which KING wrote the joined. Judge Judge LUTTIG SHEDD dissenting opinion. wrote a OPINION KING, Judge: Circuit Wayne April Jerry Superior by a in the convicted Carolina, County, rights Gates North for the were denied when Helene Knight, a first-degree of Minh Luong murders Linda newspaper local reporter who had exten- (“Minh”) Rogers sixteen-year and her old sively covered his first was permitted daughter, (“Linda”), Rogers Linda Minh serve as a in his sentencing second as well crimes as the related of first-de below, proceeding. explained As we are robbery gree rape and with a firearm. obliged, pursuant the to Antiterrorism and The recommended that Conner be Penalty Effective Death Act of 1996 death, and presiding sentenced to the (“AEDPA”), 2254, § 28 U.S.C. to affirm judge imposed two death sentences. On the district corpus court’s denial habeas appeal, direct the Court of North relief on presented by the claim Conner’s Carolina affirmed Conner’s convictions but COA. sentences,

vacated his death and awarded him capital sentencing a new proceeding. I. Conner, State v. N.C. 335 440 S.E.2d The factual underpinnings of Conner’s I”). (1994) (“Conner 826 At his second convictions in were described some detail sentencing proceeding, jury again rec by the Supreme Court of North Carolina judge imposed ommended and the two in opinion its in ap- Conner’s first direct death sentences. peal. Those facts are set forth here in unsuccessfully directly then ap liaec verba: pealed imposed the death sentences after The State’s at trial tended to Conner, retrial, his State v. 345 N.C. show that evening of 18 August (1997) (“Conner II”) 480 S.E.2d 627 Lowe, girlfriend, Harold his Kathy denied, cert. 118 Winslow, Bailey stopped and Chris at (1997). 139 L.Ed.2d He thereafter Rogers’ Gatesville, Grocery outside unsuccessfully sought post-conviction state Carolina, North approximately 9:30 Conner, relief. State v. No. 90-CRS- p.m. They parked the lot under a 1999) 648;649 (the May (N.C.Super.Ct. streetlight facing highway waiting Conner, “MAR v. Opinion”); State friend, Harrell, for a Will to arrive. Af- (2000). N.C. S.E.2d He then minutes, ter a few Harold Lowe saw turned to courts sought and federal Minh Rogers an unknown white relief, corpus pursuant habeas to 28 U.S.C. male Minh leave the store. and the man § District the Eastern of North talked for a minutes and few then Minh Lee, Carolina. v. See Conner No. 5:00- Rogers the building. reentered Chris (E.D.N.C. 2004) HC-546-BO Mar. Bailey testified that he first noticed the I”).1 (“Opinion The district court dis walking white male from the store to- petition § missed without a ward a parked white car in the A lot. I hearing, Opinion granted see but later, few moments that same white subsequent his for a application certificate male carrying shotgun and walk- (“COA”) of appealability under 28 U.S.C. ing toward the in which Bailey vehicle 2253(c), Lee, § see No. 5:00- sitting. (E.D.N.C. 12, 2004) July HC-546-BO II”). (“Opinion COA The awarded Not having paid further attention af- district store, court relates Conner’s claim ter Minh Rogers reentered the his Sixth and Fourteenth Mr. Amendment Lowe he was testified startled when Carolina, petition leigh, Respondent. Conner's names Marvin North as We Polk, Respondent Warden of the Central Prison in refer to Ra- Polk as “the State.” p.m.; around as he was passen- at the store 8:45 appeared

that same man , holding backing parking space, truck “some out of his of his ger window with a picture.” Rogers’ kind of man had seen identification same he inside with agent man he was an Grocery The stated beside him up drove were undercover officers DEA side the car. man told driver’s The drug bust preparing execute Croy agent an Mr. that he was “SBI to seize vicinity immediate effort big working drug with DEA on deal He worth of cocaine. over million $1.5 in the At that was down area.” going that if he did further informed Mr. Lowe conversation, point during the one accessory want be an Croy if he like to man asked Mr. would crime, he friends should leave and his He then a up see his credentials. held Lowe, Bai- immediately. premises the shotgun my cre- pump and said “there’s ley, positively and each identified Wilson Croy shortly dentials.” Mr. left thereaf- ap- as the man who defendant at trial lights the in ter but recalls that the and them proached them car warned appar- were on and the store was store parking leave the lot. ently open. still stopped that he Will Harrell testified Lambert, part-time employee John a Grocery at by Rogers’ approximately Rogers’ Grocery, testified that on the of evening August p.m. the of 18 9:50 on of arrived morning August he store, As the he rec- 1990. he entered a.m. find he at the store at 9:00 owner of the establishment ognized the key had left his at home. After retrac- know. talking to male he a white did steps, his he returned to the store ing build, of The white male was medium key the noted that the door with and inches approximately five-feet ten was clicking- didn’t the usual lock make tall, and a wearing plaid and a shirt was He realized door had sound. then the posi- At Mr. Harrell cap. baseball open overnight. left apparently been he tively identified defendant as the man store, Lam- When he entered the Mr. Grocery night on of Rogers’ saw found of Minh and Linda bert the bodies August 1990. Rogers. Investigation] Bureau of [State SBI RyanM. of the Gates Deputy George Agent A. Hooks testified to state- Eric County Department described Sheriffs Croy in a ments Daniel Oliver made Lin- body The nude of the crime scene. beginning series interviews in a Rogers lying on her da was back essence, morning August of 19 large pool of concentrated around blood Croy investigating various offi- Mr. told neck, shoulders, He and abdomen. her Grocery stopped Rogers’ cers that he in her gunshot a wound gaping noted August of 18 1990 after evening chest the teeth her upper and beer, sat some dinner. He “drank “just were shattered.” Minh mouth around, Rog- [sic] and talked with Linda lounge found on a Rogers’ body was ers, this daughter.” During [and] her Although she chair behind the counter. time, stocky a white male of medium clothed, fully pullover was her sweater thirty-five age, height, thirty years just pulled up been store, below purchases, entered the made some un- and her shorts had been breasts chatted for a with Minh and then while cov- pulled and down. She was zipped Mr. Croy left. noted the individual scene, securing After wearing a ered blood. had moustache Ryan the SBI. Croy Deputy notified cap. grocery baseball Mr. left the Hudson, Dr. kill Page former Chief Medi- defendant decided to woman try money to collect the cal Examiner for the State of North afterwards. Carolina, performed autopsies on 20 Defendant further offi- informed the August Saturday, 1990. He that the cause cers August, stated that on he County, Rogers’ drove to Gates Rogers gunshot of death for Minh located Grocery, and went inside. He left short- causing wound the head massive de- ly thereafter since there were several struction the skull brain. He customers inside. On the next several opined further the shot was fired by, times he there drove were vehicles very from short distance —two to four lot. parking finally When he Spermatozoa present in feet. were found relatively empty, the lot he parked vaginal cavity Rogers of Linda indicat- his car carrying and entered the store ing sexually that she had active been 12-gauge shotgun his sawed-off pump, just prior younger to her death. The in, pistol grips. with When he walked “shotgun woman died from a wound to go- defendant Rogers told Minh he was under chin and surface of neck.” laughed. to shoot her. She then He August On morning upon lounge forced her to lie down a McLeod, Special Agent Malcolm SBI chair located behind the counter. When County Deputy George Sheriff Gates rise, she attempted to he shot her in the County Ryan, Deputy and Hertford upper ap- from a chest area distance of Stallings questioned Ronnie de- Sheriff proximately eight Upon inches. be- concerning Rog- the murders at fendant ing teenage the startled victim’s night Grocery August. ers’ of 18 daughter entering the main the room of attempt After an initial to mislead the store, held gunpoint. defendant her at officers, defendant the following related After her searching weapon, for a he sequence day On the events. defen- ordered her to take off her clothes. He job was fired from his as a truck dant raped Rogers then Linda and shot (either driver with Rose Brothers the in the upper chest. Defendant remem- 1990), August thirteenth or fourteenth bered talking people with some in the Fast stopped he at the Fare Mur- parking Rogers’ Grocery lot of but does in an engaged freesboro. He extensive identifying not recall law himself as a with a male whom conversation black he fleeing enforcement officer. Before the personally scene, not know but had seen on picked did up defendant a dark col- ap- The man briefcase, numerous occasions. was bag, ored a bank and mon- the tall, weighed ey proximately register. six-feet from the cash and in his with pounds, was thirties Defendant modified this his version of slightly graying hair. The conversation that, August confession to state on 18 upon defendant centered stopped Grocery he in Rogers’ in making quick, “illegal interested some get something to to drink. An older money.” being Even after offered white male and the woman who owned to kill “Japanese woman who calling $ the to store started tease him— County,” ran store Gates defendant “cowboy”. him “cowgirl” He became store, informed man the he was interested angry, left and Alvin the went to However, prob- and left. as financial until stayed Riddick’s home where he arise, began defendant drinking lems to drove after dark. While two bottles George whiskey, back Murfreesboro locate the black be- Dickel defendant him, upset male. he unable to find came more more his When was and about day. January Conner’s second sen- store earlier treatment con-ducted, only tencing proceeding pursu- finding to the store He returned ant (provid- Gen.Stat. 15A-2000 Rogers pres- the white male N.C. Minh store, ing requirements capital sentencing for he the white As entered ent. conclusion, jury At its proceeding). male called him a “dickhead.” Defen- aggravating found factors for each two gomen suggested the two outside dant they during murder: were committed Outside, however, un- fight. felony of a each commission and were white male indicated he was identified part course of conduct the defen- fighting not interested in and left. De- dant which included crimes of violence proceeded kill then the two fendant II, against person. another previously as he indicated. women jury The two S.E.2d at 628. also found produced physical The State extensive statutory non-statutory mitigat- and three through numerous witnesses factors, ing mitigat- but concluded that the agents, FBI including agents, SBI were insufficient to out- circumstances of the Gates and Hertford deputies weigh circumstances. Id. aggravating County Departments which Sheriffs’ jury 628-29. The recommended testimony of the prose- corroborated the Conner be sentenced to death on each main cution witnesses and the elements conviction, judge murder which the trial confession. of defendant’s imposed. Id. at 629. I, 440 S.E.2d at 829-31. At the On of North appeal, guilt phase of Conner’s conclusion sentences, Carolina upheld Conner’s death him convicted on all first II, 636, and the see Conner 480 S.E.2d at first-degree mur- charges counts —two for a Supreme petition Court denied his of first-degree and one count each der certiorari, North writ of see Conner v. robbery rape and with a firearm. Id. at 876, Carolina, 196, 139 sentencing phase the separate 831. After (1997). 28, 1998, July L.Ed.2d On proceeding, of the recommended for re appropriate Conner filed a motion that Conner receive two death sentences (“MAR”), § ISA- lief see N.C. Gen.Stat. on the murder convictions. Id. On direct 1415, in Superior Court of Gates Coun Supreme of North appeal, Court Car- ty, responded and the State thereafter meriting no olina found error reversal of judgment with its and a motion for answer However, convictions. Id. be- Conner’s May On pleadings.2 improperly the trial court had re- cause Superior Opinion, issued its Court MAR prospective voir dire stricted denying pleadings. MAR on the Conner’s jurors automatically impose would August MAR at 38. Opinion See On in penalty, Morgan contravention of death North Supreme Court of Car Illinois, v. Opinion. olina review to the MAR declined (1992), L.Ed.2d 492 court vacated Conner, N.C. 544 S.E.2d State (but death sentences not his sen- Conner’s (2000). rape robbery) for tences remand- 15, 2000, capital sentencing proceeding. a new On Conner filed his September ed for in petition corpus § 2254 for habeas relief Id. Carolina, attempt capital any to obtain relief from 2. A defendant convicted of a crime in may may post-conviction "errors in criminal trials” be North Carolina seek re- committed way § by by of an MAR is made See N.C. Gen.Stat. ISA- lief MAR. An not identi- MAR. but, petition corpus cal a habeas North 1401. Carolina, the Eastern District of North termined Supreme Court of the States”; including request evidentiary a for an United was “based on an hearing. November State unreasonable determination of the facts filed and also a motion light its answer for presented the State 12, 2004, summary judgment. 2254(d). March § On court proceeding.” 28 U.S.C. granted the district court the State’s mo- explained, As the Court has a tion and denied request adjudication Conner’s for an state court “contrary is to” evidentiary hearing. Opinion See I. On clearly established federal law “the 11, 2004, August Conner filed a motion in state court at a opposite arrives conclusion seeking the district court a COA on three to that Supreme] reached Court on [the alia, bases, contending, question inter he was a of law or if the state court denied right his constitutional fair differently decides a case [the] reporter, when a local who had cov- materially indistinguishable has on a set of ered his first later served as a Taylor, facts.” Williams v. sentencing proceeding. his second On 12, 2004, (2000). September the district court “Under the applica- ‘unreasonable granted only, clause, Conner a COA on that claim tion’ may federal habeas court pursuant 2253(c), § to 28 U.S.C. conclud- grant the writ if the state court identifies ing that Conner had made a substantial governing legal the correct principle from showing of the denial of constitutional unreasonably Court’s [the] decisions but right. The court applica- denied Conner’s applies principle to the facts of the tion for a on his two prisoner’s COA other conten- Finally, case.” Id. a state Opinion tions. See II at appeal 3. This findings court’s of fact are entitled to a followed, possess jurisdiction correctness,” and we “presumption peti- which a presented by review the claim may tioner only by rebut “clear and con- pursuant 2254(e)(1). § COA 28 U.S.C. vincing evidence.” 28 U.S.C.

II. III. We review de novo a district Conner contends that he was de petition court’s on a “decision for writ of right process nied his constitutional to due corpus habeas on a court based state rec fair impartial jury, and to a in viola Lee, ord.” Basden v. 290 F.3d 608 tion of the Sixth and Fourteenth Amend (4th Cir.2002)(internal quotation marks ments, because Knight was biased. omitted). Additionally, we review for first, argument is twofold: that abuse of discretion a district court’s failure Knight was biased because she failed to evidentiary hearing to conduct an or to honestly question answer a material at voir discovery proceedings. authorize Thomas dire, in McDonough contravention of Pow (4th Taylor, v. 474-75 Cir. Greenwood, er Equipment, Inc. v. 1999). (1984); 78 L.Ed.2d 663 AEDPA, and, second, Pursuant to a federal court Knight necessarily that was may award corpus habeas relief with re- biased because she covered the first spect adjudicated to a claim extensively reporter merits trial as a and had adjudication case, state court if the re- outside information about the under (1) in a “contrary sulted decision that: principles enunciated in Smith Phil to, or 209, 222, involved an unreasonable application lips, 455 U.S. S.Ct. of, law, clearly (O’Connor, J., established Federal as de- L.Ed.2d 78 concur- mistake, an the Mc- Furthermore, response that honest Conner asserts ring). hearing applied equally test has been to evidentiary Donough as he is entitled below, to innocent explained we deliberate concealment and As bias. Jones, contentions. See 311 F.3d at reject of Conner’s non-disclosure. each 310. A. Knight contends that “failed Amendment, ap which is The Sixth honestly” McDonough when answer under the Four through to the states plicable responded negatively following to the she Dowd, Amendment, see Irvin v. teenth during trial court voir question from the 717, 722, 6 L.Ed.2d U.S. sentencing proceeding: in the second dire (1961), that a defendant be ac requires you “And have heard this case discussed jury in all criminal impartial corded an indicated direct or by any person who Furthermore, as we ob prosecutions. knowledge firsthand of the facts about the “ process Cooper, ‘[d]ue in Jones v. served you case other the witnesses that, jury if a is long alone has demanded had, journalist, Knight heard?” as a cov- defendant, regardless of provided to be extensively for the ered Conner’s first it, requires Amendment whether Sixth County Index. newspaper, local Gates and indiffer jury impartial must stand proceeding, In MAR submitted by the Sixth to the extent commanded ent two investigator the affidavits of an ” (4th 306, 310 Cir. Amendment.’ 311 F.3d alleging had ad- law students 2002) Illinois, Morgan v. (quoting that, journalist, as a local mitted to them had communicated with and obtained she (1992)). simply, [partial] Put if “even one Lin- regarding information the murders of and the death sen empaneled” is Minh, available to da and which was not is disentitled imposed, tence is “the State County Sheriff public, from Gates Morgan, sentence.” to execute the Deputy George Elmo Benton Sheriff 728, 112 2222. (who tri- Ryan testified at Conner’s first al).3 that, contrary to Conner maintains response, Knight had direct her voir dire McDonough, In knowledge of the facts or firsthand for deter- spelled particularized out its test crime. required trial is due

mining new that a fair The MAR court determined during voir dire or on deceit of the voir dire reading and reasonable Id. at 104 S.Ct. 845. questionnaires. did not con- proceeding was to obtain a new trial under the order test, investigators as individuals police a defendant sider McDonough two-part the facts knowledge “firsthand of juror that a failed with “must first demonstrate at 8. Opinion ... case.” MAR question about the honestly to answer a material Rather, that MAR court concluded a correct re- the then further show that inquiry the to refer Knight interpreted provided have a valid basis sponse would at in who had observed Although for cause.” Id. witnesses challenge for a night of the the murder scene the juror’s incorrect voir dire McDonough the ruling improper. Even portions tention that this Although MAR court struck of 3. the by considering portions Conner because the affida- the affidavits submitted the stricken of hearsay,” vits, they "inadmissible see contained Conner is not entitled to relief. Opinion his con- MAR at we do not reach presents extraordinary the circumstance had discovered bodies. crime or who find MAR unable to Id. We are mandating juror that we find bias. See unreasonable, to be determination court’s 209, 222, Phillips, Smith v. 455 U.S. forthright responses light Knight’s in of (O’Connor, 71 L.Ed.2d 78 S.Ct. knowledge coverage of regarding her (“While J., concurring) each case must trial and the full awareness Conner’s first facts, turn on its own there are some ex judge, prose- trial all involved—the justify treme situations that would a find cutor, counsel—that she and the defense bias.”).4 ing implied Those extreme sit knowledge of the back- possessed detailed uations, however, exist “where the previ- and of case his ground of Conner’s juror relationship prospective between a 2254(d)(2) 28 U.S.C. ous trial. See aspect litigation and some of the is such granted shall not be (providing that writ highly unlikely average that it is that the in adjudication resulted decision unless person impartial could his on unreasonable determination of remain in delib based presented in light facts in erations under the circumstances.” Per court); Opinion see also MAR at 6- State (4th Miller, son v. Cir. (“The that the trial transcript shows 1988). examples provided Some Justice court, and trial counsel were prosecutor, O’Connor of circumstances where bias fully all that Helene aware might presumed be include “a revelation first trial her covered defendant’s employee that the is an actual professional capacity newspaper as a re- prosecuting agency, that is a porter.”). And Conner offered no evi- participants close relative of one of the ie., that contrary, dence to the show transaction, the trial or the criminal with Knight had fact communicated that the was a witness or somehow knowledge” of witnesses with “firsthand involved in the criminal transaction.” crime, inquiry interpreted as Phillips, 455 at court. therefore con- the MAR We (O’Connor, J., clude that is not entitled to relief concurring). on his “failed to contention Although a could person reasonable well honestly question” answer material Knight’s presence view at Con- McDonough,

voir dire. troubling (given ner’s second as 104 S.Ct. 845. coverage and knowledge

extensive trial), not, 2. underlying first facts do alone, standing compel the conclusion that alternative, In the Conner contends relationship juror.5 to this case Knight’s assessing she was biased here, however, trine). may question purposes 4. as to There be some For our we viability. assume the doctrine's continued implied bias remains a viable doctrine follow- majority opinion Court's circumstances, may In these some have dif 209, 218-19, Phillips, Smith v. ficulty understanding how all those in (1982). Id. at counsel, prosecution, volved—the defense J., (O'Connor, concurring) 102 S.Ct. 940 judge accepted Knight and the trial as a — (writing separately express her “view that juror. There is no ineffective assistance claim [majority] opinion does not foreclose the however, “[cjounsel's appeal, in this ac 'implied appropriate use of circum- bias’ during presumed tions voir dire are to be Greene, stances''); Fitzgerald v. 150 F.3d cf. Francis, strategy.” matters of trial Miller v. (4th Cir.1998) (noting 365 that the ma- (6th Cir.2001); 269 F.3d 615-16 see also jority opinion appeared to in Smith under- (7th Cage McCaughtry, v. 305 F.3d 627 legitimacy implied mine the of the bias doc- Ward, Cir.2002); Fox v. 200 F.3d 1295

207 (in bias, and his trial counsel addition to Knight’s examine of we must question prosecution) that affect had actual judge and the “reasons and motives Cooper, Jones v. juror’s impartiality.” See knowledge Knight’s preexisting relation- (4th Cir.2002) (quoting 313 F.3d case, 311 all involved ship with his and those 556, 104 464 McDonough, U.S. juror as a in his second trial. accepted her 845). circumstances, is sim- there In these Opinion MAR at 9.6 any im- had ply no evidence Second, in other decisions where motive, raising much less evidence proper found, outside influ bias has been some impartiality. as to her questions impacted juror during trial. See ence regarding allegations Conner’s Louisiana, Turner v. 85 readily distinguishable from the are bias (1965) 546, 13 (reversing L.Ed.2d where courts circumstances those cases deputy sheriffs who testi conviction where bias, for two fundamental have found such with, with, and fied at trial ate conversed First, those in one set of deci reasons. trial jurors during ran errands for and sions, to serve jurors were allowed sought they after testi defendant mistrial counsel, objection of defense over Lee, fied); see also Fullwood v. 290 F.3d giv of the facts knowledge lacked counsel (4th Cir.2002) (awarding evidentiary juror’s bias. See potential rise to the ing by petition offered hearing where affidavit 420, 120 S.Ct. Taylor, v. Williams pressured by her alleged er (2000) (remanding L.Ed.2d 435 during proceedings apparently husband evidentiary hearing where lied for — sentence). effectively vote for death prosecution with wit relationship about —to represent second had no prosecutor about once ness and States, her); contacts, pressur Leonard v. United improper outside either in a certain manner or to ing her to vote where defen (reversing conviction And, as we particular trust witnesses. jury objected composition dant had noted, and his defense coun have present persons included whose members extensive Knight’s were well-aware of sel against verdict was returned guilty when coverage relationship and with newspaper case); Superinten v. him in another Wall case, presented his unlike the situations dent, Penitentiary, 553 F.2d 359 Va. State Opinion at and Fullwood. MAR Turner (4th Cir.1977) trial (ordering new where 6-9. jurors had served objected to who counsel signifi- factors are distinguishing These defendant jurors in another case where as nothing sug- here cant for the reason that Davis, testified); 558 F.2d Donovan had “capable that the was not Cir.1977) gests (4th (ordering new solely the case willing to decide quash jury where counsel moved Smith, it.” 455 U.S. at evidence before jurors from first having to avoid venire added); trial). contrast, (emphasis see By trial seated at second indeed, Johnson, Cir.2000); misleading; (10th there is heard” was all Knox v. (5th Cir.2000). being other than that she was no indication entirely upon answers to candid. Based her record, we have no basis on which 6. On this dire, questions at voir approximately 130 juror Knight’s dire re- conclude that voir Knight's lawyer was well aware Conner's sponse not “heard this case that she had knowledge prior death sentence by any person who indicated direct discussed attorneys relationship with the trial knowledge of the facts about the or firsthand witnesses. the witnesses that [she] case other Turner, 472-73, evidentiary hearing 379 U.S. at 85 S.Ct. 546 ducted an on this (“[T]he point, only but if developed’ against alleged ‘evidence a de- Conner had first that, true, “additional facts if would entitle come from the witness stand fendant shall courtroom.”). relief,” him to and if Conner had then in As the MAR public established one of the factors set forth in observed, “[n]othing [Knight’s] court re- Sain, Townsend unwillingness inability an sponses shows (1963). Fullwood, fair, impartial, to be follow the court’s (internal at quotation marks instructions, and her decisions on evi- base omitted).7 juror.” presented dence to her as a MAR (“She unequivocally at Opinion 7-9 stated no There was error the district court’s ability solely to make her decisions on because, denial of an evidentiary hearing that to her as presented would be if alleged by even the facts Conner are juror.”). simply, Put Conner has failed true, taken as he would not be entitled to (and establish) allege to thus cannot that specifically, relief. More to Conner failed anyone verdict in sought to influence the allege sufficient him facts to entitle to re- any his second trial at time before or grounds that Knight' lief “failed to an- during deliberations. honestly question” swer a material at voir McDonough, dire. See at circumstances,

In these Conner has proceeding, In the MAR to MAR court’s deci- failed show Knight the court found that had been to, contrary sion was or an unreasonable if asked on voir dire she had contact of, clearly application established with witnesses to the crime: precedent, because the decisions on reading fair and [A] reasonable ie., Williams, relies, Leonard, which he entire voir dire leads to the conclusion Turner, distinguishable. are each Knight Helene did not consid- Therefore, § is not entitled to policy investigative personnel er ground relief on the “persons knowledge.” with firsthand biased.

There is no contention or evidence that B. Helene spoke ever with or any persons otherwise had contact with relief, seeking corpus habeas present Rogers Grocery at the requested that the distinct Conner also evening initially of the murders or who evidentiary hearing, court conduct an af discovered the bodies. him fording opportunity examine Opinion A federal court MAR relevant witnesses. 8. This determination may grant evidentiary hearing finding not to a constitutes a factual made correct, if the corpus petitioner petitioner presume habeas state court that we to be 2254(e)(1), § develop “failed to the factual basis of see 28 U.S.C. [his] which Con- claim in state court.” See 28 U.S.C. ner has failed to rebut clear and con- 2254(e)(2). evidence, vincing § Because the State does see 28 U.S.C. 2254(e)(2)(B). develop assert that Conner failed to As the MAR court ob- served, claim in prove factual basis of his bias state even if could court, affidavits, allegations the district court could have con- made he has any relating (listing 7. We address issue need not factors be factors, because Conner has not the Townsend determining evidentiary assessed true, that, alleged facts would entitle warranted). him hearing is Townsend, corpus habeas relief. See

209 (Blaekmun, J., concur- 104 S.Ct. 845 to show that no evidence offered (“I that I ring) separately write to state Opinion at 8. voir dire. MAR lied on holding not to fore- Therefore, that understand Court’s are to conclude we unable the normal of relief available close avenue determina court erred its the district asserting that he did not party to a who is to an evi- is not entitled tion that Conner impartial jury. of an have the benefit McDonough, 464 dentiary hearing. See Thus, juror regardless of whether is 556, 104 U.S. at dishonest, honest or it remains within a IV. option post-trial ... to order a court’s op- the movant hearing we affirm the at which has foregoing, Pursuant to the actual corpus portunity re- to demonstrate bias district court’s denial of habeas (Brennan, ”); .... id. at 104 S.Ct. 845 lief. fact, J., concurring judgment). in the In AFFIRMED. McDonough a civil case that not did juror under present even the issue bias LUTTIG, Judge, dissenting: Circuit 549, 555, at the Sixth Amendment. See id. that, true, alleged has facts this, light 104 S.Ct. 845. In numerous that the state court’s decision of establish Circuit, courts, including the Fourth have Amendment claim was both con- his Sixth McDonough likewise held that does not trary application and an unreasonable provide the sole avenue of relief for a clearly established Supreme of the Court’s juror alleging defendant actual criminal juror He is thus entitled to law on bias. See, e.g., Cooper, bias. Jones v. 311 F.3d evidentiary hearing. respectfully I dis- Cir.2002) (“The (4th McDonough 310 sent. test is not the exclusive test for determin- a new trial is warranted: a I. biased, showing juror actually that a rejecting Conner’s Sixth Amendment regardless of whether the was truth- claim, exclusively the state court relied on deceitful, ful or can also entitle a defendant McDonough Equipment, Power Inc. v. trial.”); Greene, Fitzgerald to a new 150 Greenwood, 104 S.Ct. 78 (4th Cir.1998) (same); F.3d 362-63 (1984), addressing L.Ed.2d 663 without Green, n. 7 Zerica v. 49 F.3d 1186 Supreme Amendment cases Court’s Sixth (6th Fair, Cir.1995); F.2d Amirault v. 968 bias, actual such as Smith v. (1st Cir.1992); Cannon v. 1405-06 Phillips, U.S. (8th Cir.1988). Lockhart, (1982). J.A. 451-58. L.Ed.2d 78 See unanimously has Supreme And the Thus, by assuming McDonough pro- interpretation by citing confirmed this of relief for cases vides the sole avenue Smith, McDonough, not as the Conner’s, required court like the state a claim of actual bias governing law juror Knight prove deliber- Conner’s, that, an honest but like involved in order to ately lied voir dire establish misleading response by the at voir Amendment claim under Smith. his Sixth Taylor, 529 dire. Michael Williams v. See No J.A. 452. This was error. less 420, 442, 1479, 146 L.Ed.2d U.S. Court wrote five members (2000). joined separate opinions McDonough Therefore, court relied on a the state emphasize McDonough did not so holdings of rule of law that contradicts the applicability limit the of Smith and related cases, which do juror-bias and other McDonough, 464 U.S. at 556- Smith cases. See Williams, 440-42, prove a defendant to that the require (“[T]hese juror deliberately lied at voir dire. 1479 omissions information at [of biased decision was thus “con- voir as a whole disclose the need for dire] The state court’s evidentiary trary clearly hearing.”); to” established law. See Ter- an Fullwood v. (4th Cir.2002) 362, Lee, 663, Taylor, 529 U.S. 120 290 F.3d 682 ry Williams v. (2000) (“A 1495, 389, (granting evidentiary hearing S.Ct. 146 L.Ed.2d to deter- juror certainly improperly will con- mine whether a in- state-court decision be trary clearly precedent established fluenced her husband to for to our vote if that contra- death applies penalty). the state court rule law set in our governing dicts the forth Here, the circumstances that al- cases.”). leges plainly of actual establish risk alleges juror Knight bias. He en- II. gaged in confidential conversations about investigators key Because the state court’s treatment of his case with and a witness, 408, juror-bias claim resulted in a de- see and that con- J.A. these contrary clearly victim-impact cision that was estab- versations included law, highly sentencing lished itsdecision is not entitled to relevant to the trial in Lee, 676, juror. 252 deference. See Rose which sat as a J.A. 422. (4th Cir.2001). allegations But even if the possi- 689-90 These raise the obvious applied bility state court had Smith and related on relied such extrane- (and cases, required, yet as Conner would nonethe- ous evidence other undisclosed communications) relief, less entitled to because the state be her deliberation about necessarily court’s denial of his claim in- whether to sentence Conner to death. application volved an unreasonable a quintessential Such would constitute in- 2254(d)(1). those cases. See 28 U.S.C. stance of actual bias. Therefore, clearly pres plainly It is established that the this is case true, single capital allegations, ence of a biased which Conner’s even Amendment, trial violates the Sixth Mor would be insufficient even to raise a credi- Illinois, 719, 728, gan v. 504 112 Cooper, U.S. S.Ct. ble inference of bias. See Jones v. (4th Cir.2002). (1992), 119 L.Ed.2d 492 and that the 311 F.3d 313 On the remedy allegations contrary, for credible the risk of bias was at here least Smith, hearing prove bias is a at which to actual great comparable as as that Smith, greater bias. See 455 U.S. at 102 to or in virtually S.Ct. the risk (1982) (“This long every Supreme 940 Court has held that other Court case on actual Smith, remedy allegations partiali for bias. 455 See U.S. at 102 ty hearing (juror job is a in which the defendant has applied S.Ct. 940 for a at the bias.”); trial); Remmer, opportunity prove prosecutor’s actual during office States, (juror Remmer v. 74 United U.S. S.Ct. 450 (1954) exposed jest” 98 L.Ed. 654 to a “in S.Ct. comment that he (reversing the district court’s denial profit with could from a favorable verdict to the defendant, hearing out motion for a FBI subsequent defendant’s and to a inves- bias, comment); alleged juror tigation new trial based on of Chandler v. Florida, 560, 575, remanding evidentiary hearing). for an clearly principle (jurors This established has been were ex- occasions, applied on posed publicity innumerable includ to unusual and a sensation- See, e.g., on review. Michael al atmosphere); habeas courtroom Michael Williams, nesses”); Michael Williams, 529 U.S. at cf. married, pre- (providing an evi- years fifteen (juror had been investigator dentiary hearing and trial wit- where trial record viously, “[t]he to an ness). Indeed, Knight’s of bias in put the risk no have contains evidence which would greater great, was as attorney conversations that [the a reasonable notice than, in cases where the risk bias juror’s] non-response was a deliberate that the circum- information”). Court has held By of material omission implied compelled finding stances insisting that Conner’s claim nevertheless Gladden, Parker v. 385 U.S. bias. See Knight’s were honest fails because answers (1966) 17 L.Ed.2d 420 merely rehashes misleading, but the state curiam) to two (jurors exposed were (per that the state court’s erroneous conclusion asserting offhand comments bailiff McDonough provides Conner’s exclusive v. Louisi- guilt); the defendant’s Turner above, As shown it does avenue of relief. ana, 379 U.S. not. (1965) (two prosecution wit- L.Ed.2d among charge nesses served bailiffs III. jury, without dis- sequestered of the but Because the state court denied Conner case); cussing the Leonard v. United bias, hearing Knight’s on the issue of J.A. States, 544, 544-45, 84 S.Ct. develop” has not “failed to he curiam) (a (1964) (per through in state court lack relevant facts guilty announced its verdict prior 2254(e)(2); diligence. See 28 U.S.C. jurors try of the who would presence Williams, 430, 120 529 U.S. at Michael crime). closely on a related the defendant reason, 1479. For the same Conner distinguish seeks to Smith The state one of the six factors of fulfills least that coun- arguing like cases Sain, 293, 313, 83 Townsend Knight’s had notice of involvement sel (requiring L.Ed.2d 770 to strike prior opportunity trial and hearing when “the material evidentiary Br. at Appellee’s at voir dire. See adequately developed at the facts were not (“Conner’s trial counsel had full knowl- Therefore, hearing”). state-court Knight pos- Ms. edge of the information evidentiary hearing is entitled to an juror. It was incum- potential sessed as a what was actu- court to determine district deeper probe bent on trial counsel and whether ally communicated necessary.”). But such desired or deemed If it influenced her deliberations. ground an unreasonable on which is alleged commu- can that the establish both Smith, Knight’s because mis- distinguish prejudicial information nications included leading replies deprived at voir dire coun- and that produced source of bias sel of notice exact (or jurors) on such her fellow relied (“THE here. J.A. 245-46 challenged See detriment, I would to Conner’s you And have heard this case COURT: sentencing hearing. him grant a new di- by any person discussed who indicated knowledge of the facts rect or firsthand reasons, I from the these dissent For the case other than the witnesses about majority’s judgment. No, you KNIGHT: heard? MS. (affidavits sir.”); of defense J.A. averring Knight’s “answers

counsel voir dire indicated

during [to them] wit-

she had no such direct contact with

Case Details

Case Name: Jerry Wayne Conner v. Marvin Polk, Warden, Central Prison, Raleigh, North Carolina

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 3, 2005

Citation: 407 F.3d 198

Docket Number: 04-23

Court Abbreviation: 4th Cir.