Larry Nevers v. George Killinger, Warden of Fmc Fort Worth, Forth Worth, Texas, Kenneth McGinnis Michigan Department of Corrections

NEVERS, Petitioner-Appellee, Larry KILLINGER,

George Warden of FMC Worth, Worth, Texas, Forth

Fort

Respondent-Appellant, McGinnis; Michigan

Kenneth Corrections,

Department of

Respondents.

No. 98-1039. Appeals, States Court

United

Sixth Circuit.

Argued Sept. 1998.

Decided March possibili-

to that issue “a real and substantial ty that together these external influences juries’ could have verdicts.” .affected People Budzyn, 456 Mich. 566 N.W.2d (1997). performing After a harm- analysis, less error the court af- by firmed finding Nevers’s conviction over- whelming guilt, evidence of but reversed Budzyn’s conviction and remanded his case for a new trial. Id. at 240-43. petitioned Nevers for a writ of habeas corpus. writ, The district court issued the holding both that the trial court’s decision briefed), (argued Neil H. Fink and David grant change not to perva- of venue due to (briefed), A. Koelzer Law Offices of Neil H. pre-trial publicity error,” sive was “manifest Fink, MI, Birmingham, Petitioner-Appel- for Killinger, Nevers v. F.Supp. 855-64 lee. (E.D.Mich.1997), and the extraneous in- Olga briefed), Agnello (argued and Office jury fluences on the constituted constitution- Attorney, Prosecuting County Wayne, “harmless,” al error which was not id. at Detroit, MI, Respondent-Appellant for and below, 864-74. For the reasons stated we Respondents. judgment affirm the of the district court granting the reasoning writ. We affirm the NORRIS, BATCHELDER, Before: and of the granting district court the writ on the BRIGHT,* Judges. Circuit claim that Nevers was a fair denied jury; because of extraneous influences on the BATCHELDER, J., opinion delivered the reasoning and we reverse and conclu- court, NORRIS, J., joined. in which sions of the district court on the claim that BRIGHT, 378), (p. separate J. delivered a Nevers was denied a fair trial because of opinion concurring in the result. pretrial publicity. BATCHELDER, Judge. Circuit

Petitioner-Appellee Larry Nevers and BACKGROUND Officers, Budzyn, Walter Detroit Police The beating facts of the of Malice Green degree convicted of second murder in a are set out in published opinions of both Michigan court in beating state death of the federal district court Michigan and the They Malice Green. jointly were tried but Supreme Court,2 and we need not exhaus- juries.1 separate In their consolidated tively again. detail them Essential to the appeal right they as of raised claims concern petition corpus for habeas ap- before us on alia, ing, inter extrinsic influences on the peal are the facts that follow. pre-trial publicity. People v. Bud zyn, 170477, 170478, (Mich.Ct. slip op. Nos. partner, Budzyn, Nevers and his both of 1995) App. (unpublished March per white, plainclothes cu whom are duty were on riam). Michigan Appeals Court of af after dark in an unmarked car when firmed their Green, convictions. Id. The observed Malice an African-Ameri- can, appeals driving affirmed the court of carrying bullet-riddled car one opinion except basis of the court’s passenger, pull for up in front of a house known issue, finding the extrinsic influences to the drug activity. officers as one used * Myron Bright, Judge separate jury. Honorable H. acquitted Circuit The trial court Less- Appeals Eighth the United States Court of for the nau. Circuit, sitting by designation. (E.D.Mich. charged Killinger, 1. Officer Robert Lessnau was F.Supp. with as- Nevers 1997); People Budzyn, sault with intent to murder and was tried with 456 Mich. Nevers, Budzyn (1997). but the bench instead of N.W.2d 229 Budzyn investigation attempted being initiated an Whether Green to resist Nevers and handcuffed, and who did what to Green dur- occupants, its and Nevers of the car and him, process handcuffing are the license. Green for his driver’s Green asked subject of considerable in the variations testi- request in- respond to Nevers’s did not witness, however, mony. At one least testi- passenger’s side of stead went around to the hand, keys in fied that he saw car Green’s car, legs sat down in the car with his testimony and all of the is consistent that door, open passenger hanging out of the repeatedly drop Green ordered to what- glove began rummage around in the com- he ever held his hand but refused to do so. Budzyn partment. When shined his flash- Various of the witnesses testified that Green repeated light on Nevers’s re- Green struck, punched during and kicked license, quest to see Green’s driver’s Green handcuffing, after the and some of those grabbed something that reached down and Finally, blows were attributed to Nevers. all apparently glove fallen from the com- agreed shortly of the EMS technicians Budzyn, partment onto the floor of the car. handcuffing after the officers succeeded cocaine, suspecting object was asked Green, and, he had a seizure or seizures holding him Green what he was and asked to despite the ministrations the medical relinquish responded it. Green neither nor technicians, he died at scene. point Budzyn complied. At this and Nevers Nevers testified his own defense. Ac- give up undertook to force Green to what he cording testimony, talking to his he was with ensuing struggle, holding, and in the Budzyn one of the civilians at the scene when repeatedly on the Nevers struck Green began struggle with to Green. Nevers ran to flashlight. hands and head with a passenger side of the car with his flash- During the course of the incident number light Hearing Budzyn in hand. from police officers and two crews other EMS something hand, Green had his Nevers According to the first two techni- arrived. pried open. Something Green’s clenched fist scene, they cians to arrive on the were driv- thought which Nevers was a rock of cocaine ing by hanging and saw Green out out, again. and fell Green closed his fist car, streaming driver’s side of the blood began bring up Green to his knees toward puddling ground. his head and Nev- prevent again to Nevers from Nevers’s chest holding ers was Green with one hand and hand, opening Green’s and Nevers struck other, holding flashlight ordering with the couple him “a in an on his knees times” open hand. Green to hold still and his These kneeing him. attempt keep Green from agreed two technicians that Green looked grabbed hand and be- Nevers then Green’s dazed, squirming moving that he was and it, gan telling to strike with each strike attempting fight around but not Nevers open his hand. Worried that the Green off, comply that Green did not with Nevers’s fray, gathering might jump into the crowd hand, open and orders to his that Nevers all leave. Nevers told crowd could flashlight. struck Green on the head with the point, Budzyn At this said that Green was Their accounts of the number of blows to the car, trying get so Nevers ran out varied; he Nev- head one technician said saw side, getting there as around to the driver’s blows; ers deliver four the other testified to beginning open. the door was Nevers five or six. One of these technicians testified pulled open the door and Green’s head and at the scene that as soon as he arrived he hold- torso fell out of the door. Nevers was approached Nevers asked him what had and clothing, Green Green his when happened, replied, that Nevers “I hit grabbed the handle of Nevers’s holstered it, quit gonna him. And if he doesn’t I’m hit gun, hit him on the head. Nev- and Nevers testimony again.” him of the second his ers testified that on an earlier occasion crew, later, who arrived somewhat con- by suspect EMS him a he gun had been taken from general picture painted by the first attempting apprehend firms and Nevers did crew; crew, however, again. position one of esti- the second not intend ever to be said, go gun, mated that Nevers delivered ten blows to After of his Nevers he Green let ap- again. Seeing an Green’s head. did not hit Green truck, Rodney King beating signaled it to death to the Nevers Green’s proaching EMS flailing began police department his left arm stop. then and were critical of Green and when Nevers police specifical- the car generally around inside and these officers it, began swinging at him grabbed Green ly- fist, right which held some- with his clenched Budzyn charged and Nevers fingers. Nevers thing shiny between degree second murder. Before the com- shiny object that he feared that the explained (which began of their trial seven mencement might a knife or hand have been Green’s death), beating after Green’s months blade, responded by and he therefore razor Department, without in- Detroit Police head, telling striking again on the Green trial, vestigation or fired all of the officers hand, object, open drop the him to his scene, appeared who had at the even those struggling. Nevers said that he struck stop merely responded to the Officer in Dis- who a total of five or six Green in the head times gone During tress call that had out. incident, entire over the course period City agreed “[t]he time of Detroit also were struck after the that two of those blows to a multimillion dollar settlement with arrived. first EMS crew response Green’s estate. to some criti- trial, testimony introduced the At the state settlement, city attorney cisms of the stat- Jiraki, Wayne Dr. Kalil an assistant Coun- might spare generous ed that a settlement examiner, ty who testified that medical city the riotous violence that racked Los separate at least fourteen Green had suffered Angeles acquittal police after the of the offi- head, to the and that the blunt force blows Budzyn, 566 N.W.2d at 234. cers.” was blunt force trauma to the cause death pretrial publicity, Because of the Nevers acknowledged that Green head. Dr. Jiraki sought change of In- but was denied venue. when he under the influence of cocaine stead, permitted the trial court extensive voir died, in that the amount of cocaine but stated jurors’ regarding potential dire familiari- not contribute to his probably his blood did case, ty including they with the whether were death. prejudiced preconceived or or had biased experts Nevers introduced his own to con- guilt voir notions as to or innocence. This them, Dr. L.G.

tradict Dr. Jiraki. One 2, 1993, began dire on June and lasted at Dragovic, [the] testified “that blunt force through least June to the brain trauma that was sustained cause of not and cannot be taken as a sole 18, 1993, began Trial on June lasted (Dr. 1116-17 [this] death in case.” J.A. at approximately seven weeks. Near the end of Test.). Rather, Dragovic Dr. main- Dragovic trial, approximately one week before that without the cocaine and the tained deliberations, juries began court trial produced chemical when alcohol and cocaine juries provided the several film videos with body together, both of are which during with which to entertain themselves bloodstream, would found Green’s Green period when were not court but were life-threatening not have suffered a seizure required to be in the courthouse. One of the injuries to his head. due to the blunt force X,” provided movies was “Malcolm which Dragovic Dr. also testified that there were Rodney begins Kang with a video brain, injuries force to the eleven blunt by beating accompanied of a voice-over rather than fourteen. racially highly inflammatory provocative and speech by charging X Malcolm “white began barrage publicity A of media with being greatest man” with one of the murder- reports the first death. Because of Green’s history. ers in Defendants asked for mistrial shortly this incident after the Los occurred by acquittal on this basis but their motion was denied Angeles riots followed Rodney independent judge to whom it was re- police officers who had beaten King, reports compared ferred.3 the media in Detroit responsibility by Michigan Supreme action the em-

3. The Court noted: for the taken ployees judge disquali- of the court. The trial judge or The trial did not select the movies himself, ruling approve on motion. he took fied himself on defendants' the selections law, jury by Supreme the Nevers delib- al as determined At the close of trial States; days returning guilty Court of the erated nine before United verdict. Nevers received sentence (2) resulted in a decision that was twenty years imprisonment.4 After twelve to based on an unreasonable determination rendered, and Bud- the verdict was Nevers light pre- the facts of the evidence zyn presented the trial court affidavits proceeding. sented the State court jurors’ jurors containing from several those 2254(d). § 28 U.S.C. the Malcolm X statements that addition to applied district the AEDPA video, had other extraneous information Michigan Supreme and concluded that jury during the trial reached the affirming Court’s decision Nevers’s convic deliberations, including information that in a tion “resulted decision that involved Budzyn allegedly in- been Nevers of, unreasonable estab police volved in a undercover unit called law, lished Federal as determined STRESS, reputed engaged to have in harass- Supreme Court of the United two States” young ment of black men. The trial court First, separate bases. it found so evidentiary hearing hold an refused to permeated by prejudicial pretrial publicity Budzyn regard the claims Nevers and change that the trial court’s denial of tainted infor- had been principles venue violated the enunciated in motion for a new mation. The defendant’s pretrial publicity Court’s line of . trial was denied. Dowd, E.g., cases. Irvin v. 366 U.S. (1961); Rideau v. EF- I. THE ANTITERRORISM AND Louisiana, FECTIVE DEATH PENALTY ACT (1963); Texas, L.Ed.2d 663 Estes v. OF 1996 (1965); L.Ed.2d 543 The Antiterrorism and Effective Death Maxwell, Sheppard v. 86 S.Ct. 1996, 104-132, Penalty Act of Pub.L. No. 110 1507, (1966); Murphy 16 L.Ed.2d 600 v. (1996) (“AEDPA”), applies 1214 to this- Stat. Florida, 794, 2031, 421 44 U.S. 95 S.Ct. petition case Nevers filed because his for (1975); Yount, L.Ed.2d 589 and Patton v. 467 8, 1997, habeas relief on well after October 1025, 2885, U.S. 104 S.Ct. 81 L.Ed.2d 847 26, April the act’s effective date of 1996. See (1984). Nevers, F.Supp. See 990 at 853-64. (6th Ohio, 322, Harpster v. 128 F.3d Second, agreed with the Su — Cir.1997), denied, -, cert. U.S. preme that the extraneous Court influences (1998). S.Ct. The resulted in constitutional error by, AEDPA amended federal habeas law subject and that such errors were to harm 2254(d) § among things, changing other analysis, less error but concluded that provide the habeas statute to as follows: guilt evidence of Nevers’s was not so over whelming justify finding of (d) as to harmless application An for a writ of habeas Nevers, F.Supp. error. at 864-74. See corpus person custody on behalf of a in legal in We review de novo the conclusions pursuant judgment to the of State court grant volved in the court’s decision to district granted respect any shall not be deny § the writ under but review for adjudicated in claim that was on the merits findings fact. v. clear error its DeLisle adjudi- proceedings State unless Rivers, 370, 380, 161 F.3d 1998 WL 817815 cation of the claim— (6th (en banc). Cir.1998) (1) resulted in a that was decision to, contrary recently recognized, or involved an unreasonable As the First Circuit of, application clearly hardly clarity, “AEDPA established Feder- is a model of Judge eight eighteen years. noted The Chief the of Recorder’s Court referred sentence of As judge to a third who heard the motion Budzyn’s previously, conviction was reversed motion and denied it. by Michigan and remanded for a new trial Budzyn, 566 N.W.2d at 234 n. 7. Supreme due to extraneous influences Court held not be found to be the court could days Budzyn jury eight 4. The deliberated before returning guilty. Budzyn a verdict of received a harmless error. “contrary provision is far state court decision would be to” of review standard and its Dubois, Supreme precedent established O’Brien v. self-explicating.” Cir.1998) (citation (1st meaning: phrase’s plain “when a omit- under that 145 F.3d ted). amply that is essen- state court faces set facts truth of this observation tially Supreme attempts the same as those the by the of the circuits demonstrated reaches a different the courts should has faced earlier” but the standards to articulate 2254(d). result; apply § a state court fails to amended and when applying use principles, legal as enunciated correct 2254(d) § as ad The Fifth Circuit reads law, to decide a ease. Court case challenges a state dressing three distinct Id. at 923. See, e.g., v. John court’s decision. Drinkard (5th Circuit, French, Cir.1996), son, in Green v. cert. The Fourth 97 F.3d (4th Cir.1998), denied, enunciated an 137 143 F.3d U.S. Fifth, (1997), approach other similar to that of the Sev- L.Ed.2d 315 overruled on enth, and Eleventh Circuits: grounds by Murphy, Lindh v. (1997). 2059, 138 L.Ed.2d 481 “contrary precedent only to” [A] decision 2254(d)(1) § “contrary address to” clause when, through pure law either a decision of law; questions pure the “unreasonable es application of to facts indistin- or the law 2254(d)(1) § application” addresses clause guishable way material from those fact; questions of

mixed law precedent on the basis of which the 2254(d)(2) questions pure § fact. addresses decided, legal that decision reaches a con- The Seventh Circuit has See id. at 767-68. opposite or a to and irrecon- clusion result very approach to that articulated similar precedent cilable with that reached Murphy, of the Fifth Circuit. See Lindh the identical issue. In con- addresses (7th Cir.1996) (en banc), 96 F.3d trast, represents an “unreason- a decision grounds, on other rev’d precedent, of’ when able (1997).5 2059,138 L.Ed.2d 481 precedent applies in a con- decision text different from one which (11th Neelley Nagle, 138 F.3d 917 precedent was decided and one which Cir.1998), developed an the Eleventh Circuit legal principle pre- extension of the Fifth and approach similar to that of the reasonable, cedent is not when that deci- “determine^] It first Seventh Circuits. apply principle prece- of a sion fails to time,” ‘clearly law at the relevant established’ dent in a context where such failure is 922, finding helpful guidance id. unreasonable, recog- or when that decision Lane, Teague v. determination higher principle correct from the nizes the (1989) 1060, 103 L.Ed.2d 334 S.Ct. unreasonably ap- precedent, court’s but (new applied rules not be retroactive- should plies principle to the facts it before ly reviewing petitions) and its habeas (assuming insufficiently are dif- the facts progeny, applies then ei- id. 922-23.6 It gave to the ferent from those rise “contrary ap- ther the to” “unreasonable precedent as to constitute new context 2254(d), §in the former to plication” clause principle’s applica- for consideration of the law,” 923, pure “errors of id. at and the latter bility). “[b]y very language ques- to mixed its fact,” According then the follow- of law and id. at 924. Id. at 870. Green announced tions Neelley, which a standard: there are two instances in Neelley judice acknowledges "[t]he chose In a 5. The district court in the case sub footnote employ Teague Circuits' “cate- overlap to gorization” the Fifth Seventh between the statute and is not approach (although 3, concluded that complete,” Neelley, 138 F.3d at 923 n. the result would be the same under the First overlap found “no need to determine the exact Nevers, infra), approach, Circuit's discussed see Teague § 2254 in this case because between F.Supp. at 851 & n. 4. One month after the Neelley’s Supreme governing Court case law determination, judge in district court’s another manifestly relevant contentions was clear all Eastern District of also found the times,” id. categorization ap- and Seventh Circuits’ Fifth Yukins, proach appropriate. v. to be See Barker (E.D.Mich.1998). F.Supp. 600-01 manner, Defining Teague in this re- progeny, the terms O’Brien looked to and its believe, spectively, captures, we the obvi- Neelley and even referenced in citation. If a ous common sense of the statute: O’Brien states: square court decision is in conflict state Drawing Teague, we hold that affir- an court) precedent (supreme with a which is mative answer to the first section fact, controlling then the writ as to law and 2254(d)(1) inquiry Supreme —whether issue; corpus of habeas should if no such prescribed governs Court has a rule that exists, controlling decision should writ petitioner’s requires something claim— only if the state issue court’s resolution recognition Supreme more than a question pure upon objec- law rests an general Court has articulated a standard tively legal unreasonable derivation of that covers the claim. To obtain relief at principles supreme from the relevant stage, petitioner this a habeas must show precedents, upon or if an its decision rests Supreme precedent requires Court objectively unreasonable of es- contrary by outcome to that reached principles tablished to new facts. relevant state court. Neelley, 138 F.3d Cf. ap- Id. The Fourth affirmed that its Circuit at 923-24. Drinkard, is, form, proach very similar to O’Brien, Lindh, 145 F.3d at 24-25. O’Brien went on Neelley. id. at See 870-73. Un- qualify requirement, Neelley, noting like Green declined to view that “[a] “clearly petitioner point the term established Federal law” as need a habeas court to a Teague a codification of the doctrine. But factually precedent,” identical id. at be- insight provide Green did not into how that “[ojftentimes, Supreme holdings cause Court alternatively term should be understood ‘general’ are in the sense that erect a applied. id. at See 873-74. specifically applica- framework intended for situations,” (citing, tion to variant Circuit, Dubois, factual id. The First O’Brien footnote, (1st Cir.1998), Georgia, Waller 145 F.3d 16 criticized the “bi- (1984) (“viola- furcated Fifth 81 L.Ed.2d 31 standard” enunciated right test); engrafts public and Eleventh because it tion of the trial” Circuits Strick- law,” “questions Washington, into the statute land v. words— (1984) (“ineffective questions and “mixed of law fact”— as- Congress place which did not id. test); there. See sistance of counsel” and Jackson v. Accordingly, at 22-23. the First Circuit Virginia, 443 U.S. up approach: came with its own (1979) (“insufficiency L.Ed.2d 560 the evi- test)). O’Brien, A charged weigh Thus, federal habeas court according dence” state court decision must undertake an proper question determining when independent two-step analysis of that deci- “contrary state court decision is to” First, sion. the habeas court asks whether Supreme precedent established Supreme prescribed Court has a rule whether virtue rule — so, governs petitioner’s claim. If similarity (though of its factual neces- gauges the habeas court whether the state sarily identicality) gen- or its distillation of “contrary govern- court decision is to” the precepts eral federal law into a channeled ing governing rule. the absence of a analysis specifically mode of intended for rule, “contrary the language to” clause application to variant factual situations— drops equation from the habeas fairly require particular can be said to a step. stage, court takes the second At this particular in result a case. the habeas court determines whether the at Id. 25. (or use) state court’s use of failure to exist- ing deciding petitioner’s law in claim Finally, explained, Supreme if O’Brien no application” involved an “unreasonable of “fairly require Court “rule” can be said to a Supreme precedent. Court case,” particular particular result a then

Id. at applies. application” the “unreasonable test determination, step, help spe-

To in the Under this second inferior federal court “of how qualify dispositive,” factually cific a rule must be to decisions which have decided similar may assessing “in help [decision] the reasonable court ‘involved an unreason cases application ] treatment of[ vel non of state court’s of able established Fed ness issue,” law, Supreme the contested id.7 eral as determined ” (quoting at Court.’ Id. 28 U.S.C. interpret This Circuit confronted 2254(d)(1)). jury § The extraneous influence 2254(d) Ohio, § v. Harpster F.3d may ques also issue viewed as a “mixed — denied, (6th Cir.1997), cert. which, tion” case the Fifth and Sev under (1998). -, 118 S.Ct. approaches, enth necessitates re Circuits’ “heavily Harpster involved a fact intensive” application” view under the “unreasonable (whether judge question the trial should have test, clause.9 Under the First Circuit’s mistrial), both “a declared a which was mixed jury extraneous influences issue boils down question of law and an issue on and fact” error,” question to a of an issue on “harmless Supreme specifically “the has which Supreme adopted which the Court has compel prescribing rigid avoided rules rule, rule, namely specific Chapman see Harpster, outcomes.” 128 F.3d 327. Af generally Chapman California, v. comparing approaches ter similar (1967), which L.Ed.2d to that of Fifth and Seventh Circuits governs all state court harmless error review Circuit,8 either, adopt we declined to First involving of “trial” errors federal constitu finding between the differences two rights. Abrahamson, tional See Brecht approaches would the result in not affect 619, 630, approach panel under case because either (1993). However, L.Ed.2d 353 because upon apply called “unreasonable inevitably “harmless error” are ex cases 2254(d)(1). application” § clause id. See tremely case-specific, fact-intensive and we 326-27. We have articulated where not since say Supreme Chap cannot Court’s we stand on the issue. fairly rule is one man which “can be said to case before in the us issues require particular particular in a result today pretrial publicity involve whether ne O’Brien, case,” and thus F.3d change cessitated a of venue order governed under issue O’Brien would also be trial, defendants to receive a fair and wheth by the application” “unreasonable clause of surrounding the er the errors extraneous 2254(d)(1). § influences on the were harmless. The issue, Likewise, Harpster, like neither Neelley former the issue nor Green coun- heavily question mixed sels consideration of in this fact-intensive law the issues case anything which is no clear “rule” and fact for there under other than the “unreasonable 2254(d)(1). by the Supreme requiring application” § enunciated clause in This case Therefore, question result. certain involves neither in which “a instance state pretrial publicity, [the face[d] “under either Fifth court [has] a set of facts essentially First and Seventh Circuits’ or the Circuit’s] same as those approach earlier,” we must decide whether state Court has faced reaches a differ- Billy, adopted 7. But see Herbert 160 F.3d 1134— standard enunciated the one in Martin is (6th Cir.1998) (stating applied 35 AEDPA, that after the advent O'Brien. appeals "[a] district court or court no longer can look to lower federal decisions subsequent fully 9.As we shall more address in deciding contrary whether decision is the state opinion, section of this extraneous influ- to, of, clearly or an es- unreasonable ence issue also involves an issue whether the added). law”) (emphasis tablished federal inquiry courts' failure state to malee factual effect, any, into actual if of the extraneous Harpster contrary jury’s 8. we discussed the First Circuit case information on the verdict was to 96-1856, Bissonette, issue, however, clearly of Martin v. 1997 WL established No. law. This (1st 29, 1997). waived; May may Cir. This case have been difficult to deter- it is Bissonette, replaced by appeal, withdrawn Martin mine whether it was on direct raised (1st Cir.1997), only by implication 118 F.3d 871 which does not was raised in the habeas approach initially proceedings. discuss the discussed the We address it because we view it However, opinion. comparison aspect withdrawn an inextricable as of influence original specifically by to shows that the issue as the state Martin O’Brien addressed courts. among not rea- result, in which a court has failed that it would be debatable or state ent jurists. legal principles, as enun- sonable correct apply to Court, decide a to ciated Drinkard, 97 F.3d at 769. The Fourth and case, circumstances of which necessitate expressly adopted Eleventh have Circuits “contrary to” clause under application Green, own. See F.3d this test as their Neelley, 138 F.3d at 923. Similar- Neelley. 870, 873; Neelley, 138 F.3d at 924. How ly, ever, does not involve “a decision this case specifically First Circuit has de pure application or the of law facts law adopt clined to the Drinkard instead test and way issue, indistinguishable material has stated that “for the writ to precedent the basis of which those on state court decision must be so offensive to Green, existing precedent, sup F.3d at so devoid of was decided----” See record arbitrary, Accordingly, port, we or as to indicate it is Harpster, as in need so 870. plausible, outside the universe credible today specific approach we not which decide O’Brien, outcomes.” 145 F.3d at 25 n. 7. & persuasive, they point as all find most Circuit has Seventh articulated diver application” clause “unreasonable gent Murphy, standards. See Lindh v. 2254(d)(1). § (stating that F.3d at 871 a state court’s “ agreement circuits among The lack of honored,” decision ... ‘reasonable’ must be meaning sharper regard with is even to the failing might to articulate what that application the term “unreasonable say other than to federal court must appear application.” While all the cases “take into account the care with which agree application’ “the ‘unreasonable subject”); Hen state court considered the empower clause not court to does habeas non, (specifically rejecting 109 F.3d at 335 merely disagrees grant the writ because it “care-with-which-the-state-court-consid decision, because, with the state court’s ered-the-subject” language in Lindh devices, reached left to its own it would have stating question “unrea instead that result,” O’Brien, 25,10 different 145 F.3d application” sonable turns on “whether the agree they not on what court do the district minimally least consistent determination in order to due to an must find issue the writ with 'the facts circumstances of clearly application estab- of[] “unreasonable case”); Washington, 106 F.3d Hall law,” 2254(d)(1). § The dis- lished Federal Cir.) (“The (7th statutory 748-49 ‘unreason agreement is not AEDPA about whether the allows the state court’s ableness’ standard high degree requires a of deference if stand it is one of several conclusion to rather, judgment; is about state court’s outcomes.”), equally plausible de cert. degree gauge the neces- - how to deference nied, -, U.S. sary. Fifth Circuit holds (1997). L.Ed.2d 190 argument in this law is unrea- we heard oral that an to facts Since Court, in only Billy, that rea- Herbert v. 160 F.3d sonable when it can be said case this (6th Cir.1998), jurists has considering question sonable 1998 WL agreement of one court its with the “reasonable would be view that the state stated words, jurist” taken the Fifth approach [the is incorrect. In other Circuit decision Drinkard, Today grant if a F.3d at 769. we state will] court habeas relief agreement decision incorrect well our with the standard enunci- state court is so ("[T]he Neelley, unlikely have process because are 138 F.3d at 924 mere due Accord disagrees swayed jury might fact a district court state think the determination the — him.”); decision court does render that state court’s carry day incorrect —would not 'unreasonable'; certainly can differ two courts (“This Drinkard, F.3d at 768 'unreasonable proper question over the resolution of a close application’ court of review of a state standard unreasonable.”); viewpoint being without either mean more than that a federal decision must (7th Cir.), Cooper, 109 F.3d Herman v. simple may grant relief based on its habeas - denied, -, cert. decision; disagreement with the state court (1997) ("[T]he might we L.Ed.2d 32 disagree fact that nothing novo more than a de would amount with the state court's determination review.”). deny prosecutor's did Hennon remarks 362 Circuit, namely, by existing by the First that “for the district

ated court as between issue, the state court decision presumptive prejudice the writ “clearly actual is existing precedent, so offensive so must be law, by established as Federal determined support, arbitrary, of record or so devoid Supreme Court of the United States.” that it is outside the universe of indicate 2254(d)(1). § 28 U.S.C. Review relevant O’Brien, plausible, credible outcomes.” 145 Supreme precedent Court indicates that 25; Hall, accord 106 F.3d at 748-49 F.3d at distinction; there is such it is best articu (“The statutory ‘unreasonableness’ standard Florida, by 794, Murphy 421 lated v. U.S. 95 the state court’s conclusion to stand if allows (1975). Murphy S.Ct. L.Ed.2d 589 equally plausible it of several is one out categorized prejudice dealt with in the comes.”). recognize First We Cir cases, previous in which Court’s the Court rejected specifically Drinkard’s “reason cuit “overturned state-court conviction obtained jurist” articulating when its own able test atmosphere utterly in a trial that had been O’Brien, standard, 145 7. F.3d at 25 n. We 798, corrupted by press coverage,” id. at 95 think, mutually are not the two 2031, into types preju S.Ct. two —“actual” exclusive; rather, both standards can be em “presumed” prejudice, dice and both of which ployed arriving to aid in at the correct an require change reversal for refusal to venue. question of “unreasonableness.” swer to years Tvsto later distinct these two kinds of judgments to the The deference state courts’ prejudice specifically discussed in Dob by required by the AEDPA is achieved Florida, 282, 2290, bert 432 U.S. S.Ct. adopting the rule that the unreasonableness (1977), 53 L.Ed.2d 344 in which the Court of a state court’s estab wrote, petitioner “We concluded that the Supreme precedent will not lished Court Murphy had failed to show that the trial among jurists,” “debatable reasonable Drin setting inherently prejudicial or that the 769, kard, at offensive 97 F.3d if it is “so process selection permitted an existing precedent, sup so of record devoid inference 802, prejudice. at 421 U.S. 95 S.Ct. port, arbitrary, indicate that it or so as to ofachial Dobbert, at 2037.” 432 U.S. 97 S.Ct. plausible, universe outside the credible added). outcomes,” O’Brien, (emphasis F.3d at 25. Inherently Prejudicial.” Setting “Trial PRE-TRIAL II. PUBLICITY type prejudice represented One Ri argued he should have Petitioner re- Louisiana, deau v. 373 U.S. change pretrial of venue due to ceived (1963), Texas, 10 L.Ed.2d 663 Estes v. publicity. agreed, The district court first S.Ct. L.Ed.2d 543 Supreme finding that has estab- “[t]he Court (1965), Maxwell, and Sheppard courts, guide lished two standards to (1966), prejudice’ ‘presumed ‘actual standard and the which Court concluded that the “circum Nevers, standard,” prejudice’ F.Supp. stances under which the trials ... were held” determining that the Michi- and second prejudice were such that inherent to the gan Appeals11 unreasonably had presumed. Murphy, venire should be applied “presumed prejudice” standard 798-99, 2031. Rideau in to Petitioner’s case. It not address did in-jail televising volved the of an minute (the prejudice” ap- standard “actual standard interrogation of police the defendant plied by Michigan Appeals) be- in which the defendant confessed to mur “presumed prejudice” cause it found dispositive. subsequently which he standard Id. der for convicted. presump The Court concluded that Rideau Clearly Supreme 1. Established tively could have received a fair Court Precedent? parish “because considered the trial question formality’' review The first that must be ad under ‘but a hollow —-the recognized dressed is whether distinction real trial occurred when tens of thou- Budzyn, opinion. 11. The Court affirmed this of that court’s N.W.2d at part appeals decision basis sands ^[12] people, in a community 150,- take evidence to overcome their belief’ in the 000, 728, guilt. defendant had seen and heard the admit defendant’s Id. at 81 S.Ct. 1639. Also, 799, guilt prospective Id. jurors his before the cameras.” some 90% of the point Estes had on degree 2031. “The trial in been examined indicated some S.Ct. atmosphere, guilt; in in belief in a circus due conducted accused’s for this rea- large part press, of the 268 of to the intrusions son the 430 veniremen were excused 727, the bar for cause. was allowed to sit within of the Id. at which 1639. The Court, equip Murphy and to television reviewing overrun it with after the facts of Irvin, noted, circumstances, Sheppard ment.” Id. contained “not “In these background extremely inflammatory pub readily prejudice ] [Irvin found actual against licity given petitioner degree but also a courthouse over to ato that ren- public appetite for carni impossible.” Murphy, accommodate the dered fair trial cases, Regarding Id. latter val.” these two U.S. 95 S.Ct. 2031. The Court went the Court stated: observe: In proceedings community in these cases were en- most where veniremen will

tirely lacking solemnity sobriety prejudice, in disqualifying admit to a the reli- ability sys- may to which a is entitled of the protestations defendant others’ tem question; that subscribes to notion of fair- drawn into for it is then more rejects probable part ness and verdict of a that community mob. are of a accused, They deeply cannot be made stand for the hostile to the and more juror exposure likely proposition they may unwittingly to informa- have been prior tion about a state defendant’s convic- influenced it. tions or to of the news accounts crime with Comparing Id. at 95 S.Ct. 2031. charged presumptively

which he is alone (petitioner in Murphy facts claimed that the deprives process. of due the defendant prior had learned of a conviction as well issue) Id. certain facts as about the crime at Irvin, Murphy those Court found no “Jury Selection Permitted Infer- Process comparable community-based against animus Prejudice.” type ence of Actual The other Murphy, and Ap- thus affirmed Court of Dowd, prejudice, represented Irvin v. petitioner peals’ conclusion that the had not U.S. 6 L.Ed.2d S.Ct. right fair trial. been denied his ato (1961), proposition stands for the that absent amounting Murphy, the “televised to a tri- confession Since Court has situations, atmosphere” pre- applied setting inherently prej- al” or “carnival the “trial Rideau, Estes, publicity inherently prejudice that would udicial” standard of jury pool only by Sheppard, presumably can because be discerned re- the “tele- viewing interrogation/confession both the extent and nature of the in a vised smaller publicity responses community” “tabloid-esque, prospec- and the carnival jurors atmosphere” Irvin tive voir dire. involved a have not arisen. We instances are, capital case in holdings which the defendant was tried think that those cases therefore, community widely in a small aware to be limited their facts. The convictions, prior measuring pretrial his publicity his confession to 24 benchmarks for burglaries (including appear and six murders the one to be Irvin on one end and Mur- trial) other, exemplified which he unaccepted phy stood his as Dobbert Florida, plead guilty offer order avoid death Irvin, 725-28, (1977), years

sentence. See 366 U.S. at two decided after petitioner, prejudicial Murphy. 1639. In addition to this Dobbert who began children, eight murdering information before the trial of was accused of his empaneled jurors already publicity pointed pretrial formed to extensive sur- opinion guilty; rounding discussing Murphy the defendant was his case. After say some went “so far Dobbert’s as to would the concluded that case was 53,000, 97,- maybe many At least as of the televised confession least once. See gRideau, people tape were estimated to have seen the 373 U.S. at 83 S.Ct. 1417. (the grant reversed the Fourth of the Murphy than Irvin others Circuit’s like more mentioned): writ. not even were argument that the extensive Petitioner’s we that there is Because conclude him a by the denied fair coverage media precedent distin- established Court entirely quan upon the almost trial rests involving presumed guishing between cases publicity which the events received. tum of “setting of the trial prejudice [is] the —when specific portions directed us to no He has inherently prejudicial,” Murphy, 421 U.S. at record, particular voir in the dire of 803, prejudice— 95 S.Ct. 2031—and actual jurors, which would of re examination of voir dire when review both the testi- finding unfairness quire a of constitutional mony and the nature of the extent and media or as to to the method of selection as impossi- coverage indicates fair trial [was] “a actually jurors of select the character 798, ble,” turn id. at 95 2031—we to the S.Ct. knowl Murphy, But under extensive ed. question of whether the district erred edge community in the of either crimes determining Michigan in Court of sufficient putative criminal is not or the “clearly Appeals unreasonably applied estab- constitutionally a trial un

itself to render precedent. lished” simply in this has fair. Petitioner case community Application? 2. was made well Unreasonable shown that charges against him and of the asks aware opinion Appeals Court presume to unfairness us on that basis states: magnitude trial. at his This constitutional Although involved this case extensive in of a “trial will not do the absence we publicity expressions of commu- media and by press utterly corrupted atmosphere sentiment, jurors nity the seated all of Florida, Murphy supra, 421 coverage,” v. they could indicated under oath that hear 2035. One who at S.Ct. at U.S. fairly impartially, and defendants’ cases murdering reasonably suspected of his despite publicity exposure their to media anony cannot to remain expect children Thus, community and there is sentiment. to convince Petitioner has failed us mous. presumption may which impartiality “totality of the circum that under demonstrating only by rebutted facts stances,” the Florida Mmphy, supra, Su opinion or actual bias sufficient indicate finding no preme wrong con Court part jurors by showing of seated or respect violation with stitutional the nature extent of media and pretrial publicity. community and publicity sentiment was Dobbert, at 303, 2290. 432 U.S. 97 S.Ct. prejudice presumed. must be such Florida, 794, Murphy 95 S.Ct. again years after Seven Dobbert 2031, (1975); People utterly atmosphere “trial cor- addressed a DeLisle, Mich.App. 202 509 N.W.2d by press coverage” in Patton v. rupted (1993). 885 Yount, S.Ct. DeLisle, (1984), high less Mmphy involved a As than L.Ed.2d which jurors prospective raping and murder- one-third school teacher accused of disqualified on ing these cases account of one of his female students. were Irvin, 1032-34, bias, jurors and all chosen denied hav- id. at discussed see 1033-35, opinions guilt. at fixed as to defendants’ Murphy, see id. S.Ct. DeLisle, Moreover, 2885,13 many in Mmphy its review extent prior jurors had pretrial publicity seated knowl- and nature of .all jurors edge arguably damaging more testimony voir dire. Con- matters jurors cluding the defense than the content of the that “the at Yount’s had cases, publicity surrounding these such as opinions had] such fixed could [not regarding prior crimi- judge impartially guilt of the defen- facts the accused’s dant,” pretrial record or confession id. at the Court nal S.Ct. Patton, precedent inadequate to uncover bias.” 13. Rideau was cited as are footnote "describing procedures n. 2885. situations U.S. in which state result, dissenting). charged Admittedly, the instant As a the trial was but a offense. jurors unique formality” “hollow because are the extent Rideau’s “real tri- cases exposed predictions or concerns al” had occurred when those the communi- ty rioting may occur in the event of interrogation that local watched the televised acquittal, previously occurred guilt. Murphy, heard him his admit Angeles police when were ac- Los officers Rideau must be Rodney quitted charges in the of state understood limited to as its facts because the However, beating King ease. we do not Supreme has Court not discussed it in a presumptive find this sufficient establish pretrial publicity Murphy, case since and prejudice. As for claims defendants’ of strictly in was Murphy even it discussed juror prejudice upon actual bias or based us, only its facts.14 In the case the before responses given on voir certain selected thing by pretrial close to a admission Nevers remarks, dire, jurors’ find that the we appears published days in an article two context, (and in full when viewed do indicate after the incident seven months before inability partiality, opinion, to de- trial) fixed quoted saying, his in which Nevers is as solely pre- evidence cide the case “I something wrong, guy must have done sented. Nevers, F.Supp. died.” at 855. This is hardly equivalent the of a televised confes- 170477, 170478, People Budzyn, slip Nos. sion to murder. 1995) 22, op. (Mich.Ct.App. at 6-7 March curiam). (unpublished per Neither do the facts this case evince the atmosphere Sheppard carnival issue in and found that district sure, Estes. To be there was extensive me- court’s decision was unreason us,15 coverage in case dia before most of clearly able established Su television, newspaper which was rather than preme it precedent because “failed to Nevers, F.Supp. which and we prejudice presumed address the standard of extensively more discuss The content infra. Murphy, Rideau and ... instead relied [and] newspaper and extent of in articles juror upon will im statements that to, than, are but ease similar much milder Nevers, partial,” F.Supp. at 864. Sheppard. found in Sheppard, those howev- Rideau, particular the district court relied on er, coverage involved out-of-control television Nevers, Rideau, F.Supp. see at 854. during before16 the trial both and that makes applicable is not to this case be hype surrounding the media the O.J. cause Rideau is limited to its facts: a tele tame, Simpson and, appear as defendant, jail-house interrogation vised circus, in Murphy, noted is this television in robbery/kidnap which he to a confessed coverage, newspaper in addition to for ping/murder only he had committed significant. Sheppard which previous night, by seen over one-third of the community’s Sheppard residents from a two weeks before his arose trial infected not Rideau, arraignment, only extremely by background inflam- matory publicity by less than months S.Ct. two before also a courthouse trial, (Clark, J., given ap- his public id. at 83 S.Ct. 1417 over to accommodate the Rivers, three-day pretrial 14. Accord DeLisle v. 161 F.3d 377-78 16.One incident was a “in- quest” (6th live 1998) broadcast over T.V. and radio at (stating televising Cir. "it 'the was brought by “Sheppard which police was room into the confessing of a defendant the act of to a crime' him in full of several who searched view inherently that the Rideau Court held 'was inval spectators," "questioned hundred he for five was id under the Due Process Clause the Four night and one-half about his hours actions on ”) Texas, (quoting teenth Amendment.’ Estes murder,” present of the "counsel ... his were L.Ed.2d permitted participate,” but were not DeLisle). (1965)) (emphasis added in attempted Sheppard’s chief “[w]hen counsel place he record[] some documents Indeed, description the district court’s of the Coroner, forcibly ejected by from room the eight coverage encompasses cheers, media alone over hugs, who received and kisses la- pages Supplement. Federal Sheppard, See 990 dies in the audience.” 384 U.S. at 339-40, F.Supp. at 855-63. 86 S.Ct. 1507. by mayor proceedings cial statements to the media petite for carnival. chief, by entirely police especially lack- statement \Sheppard ] and Estes News, sobriety mayor young “A solemnity Nightly to which the to NBC ing in the literally system who mur- that man was under arrest was entitled defendant by by police;” rapid dered settlement notion of fairness and subscribes family city lodged of a suit rejects a mob. civil Green’s the verdict of million; reports prepa- over riot $5 2031.17 421 U.S. at Murphy, Department the Detroit Police ration not involve a tele- this case did Because widely acquittal; and the event of an in Rideau or the carnival vised confession publicized concerning reputa- facts Nevers’s displayed Sheppard, in Estes and atmosphere rogue cop, as a involvement tion violent his apply law we must established shooting previous suspects, deaths Irvin, question where the here is that of him, brutality complaints against filed publicity ... pretrial cre- whether “adverse STRESS,19 his involvement in id. at former of in presumption prejudice a such ated] 863. jurors’ community that the claims However, the not while information contained impartial can be believed.” should coverage certainly Patton, prejudi- in the media was 467 U.S. at S.Ct. Irvin). cial, analysis nearly prejudicial it not so as that (discussing The under Irvin was Irvin, Estes, Rideau, in found in which the and differs from under must Sheppard, in that we review articles, barrage headlines, newspaper of coverage the but the substance media itself pictures ... and unleashed cartoons in jurors’ dire of statements voir de- the against during ... the six [the defendant] “community- termining was whether there preceding ... months his trial seven against wide the defendant. sentiment” to the mur- announced his confession six sure, many fact of in the com- ders and the his indictment for four To be there were Indiana[;] beating munity enraged by of Mal- of them in death offer [his] Green, 99-years by newspa- plead guilty promised if sen- ice as the several shown tence, determination, per and contained also articles editorials but thoroughly part prosecutor in the dis- of the to secure the death record and discussed Nevers, opinion. penalty[;] and ... to 24 [his] confession] trict court’s See (the burglaries operandi The these F.Supp. at district court’s modus of 855-63.18 correctly pro- opinion compared the most robberies was to that of the summarizes noted). examples pretrial publicity, similarity murders and the blematic of One Nevers, story prejudi- petitioner re- F.Supp. see at 862-64: ... characterized as ("There DeLisle, it 17. 161 F.3d 384-85 black men before was disbanded Former Accord allegation by Mayor Young.” is DeLisle that his trial took no Detroit Id. at An- Coleman 855. place of chaos that mentioning par- under conditions total other Nevers’s article STRESS prevailed Sheppard, Estes and a review ticipation "specifically referred the officers of that it cases leaves no room doubt was those culprits major police involved in STRESS as of See that chaos that drove those decisions. Mur- brutality stated unit controversial 2031.”) (emphasis phy, twenty people, in the of was involved deaths added). seventeen of whom were black.” Id. at 855-56. compared Other articles the incident the Rod- Budzyn’s 18. articles described Nevers's and The ney King beating, Many see id. at 856. of the officers,” id., reputations police as line "hard articles editorials involved criticism “as who often used force and intimidation tools police department generally, especially concern- (Ex. (Detroit persuasion,” of at 424 M32 J.A. way previously which it had handled Article)), garnering them News Nov. thus police with histories of officers violent behavior. neighbor- "Starsky and Hutch” in the nicknames stated, Mayor Detroit The of even on national they patrolled, hood in which id. articles television, young arrest "A man who under police previous instances of bru- also mentioned literally by police.” Mayor's murdered Nevers, Nevers, tality alleged against see reported subsequently statement was in the 855-57, F.Supp. at and Nevers’s former member- newspaper. id. at See 859. Enjoy ship Streets), (Stop Safe in STRESS the Robberies unit "a undercover controversial alleged young supra 18. of 19.See note was involved harassment Appellee’s Also, but argument. conscience also Brief or at oral morseless without appears potential jurors sane a court- all having been found certain that as case, many appointed panel of prosecutor of doctors. had heard about the as the dire, petitioner was described as the during the stories conceded as much voir see J.A. six,” (Voir slayer parole Tr.); violator this, course, of “confessed at 502 Dire of artist____ venue, On the enough justify change and fraudulent-check day newspapers before the trial the carried preconceived even the “existence of a[] no- story orally admitted that Irvin guilt tion as to the or innocence of ac- (the case) victim in the murder of Kerr cused, more, without [not] sufficient to “robbery-murder as well as Mrs. presumption prospective ju- rebut aof Holland; Mary the murder of Mrs. Wilhel- Irvin, impartiality,” ror’s 366 U.S. at Posey County, mina Sailer slaughter Duncan three members Appendix appeal The Joint submitted on family County, Ky.” in Henderson pages dire, contains almost 500 voir 725-26, Irvin, 81 S.Ct. 1639. which, main, testimony voir is the dire importantly, More Irvin discussed infor- jurors, empaneled scatterings regarding jury panel mation which excerpts testimony voir dire of oth- extremely important. Murphy found potential jurors er who did not become mem- previously, As in Irvin of those noted “90% panel. appendix bers of the We attach as an point examined the ... entertained some on summary pages our of of review these of opinion intensity in guilt ranging from as transcript. the — certainty.” Id. suspicion mere to absolute transcript Our extensive review of the of “[Ejight 12 [em- 81 of the jury the voir dire us to that leads conclude paneled] jurors opinion had formed an that jurors actually empaneled none of the had guilty the defendant was before the trial any opinion guilt fixed as to Nevers’s before began; say went far that it some ‘so as to began, trial in to the in the contrast situation would evidence to belief take overcome their Irvin, eight jurors of where the twelve petitioner’s] guilt.” Murphy, 421 [the opinions. transcript pages such These dis- 798, 95 con- panel U.S. at S.Ct. 2031. “The jurors only eventually close two seated who persons[, and] [t]he sisted of 430 court itself cause; challenged only for were as to one of challenges excused 268 of those on for cause those, namely Juror # does the trial having opinions guilt as as fixed to the challenge ap- court’s denial for cause Irvin, petitioner....” U.S. pear questionable. been Beck v. have Cf. Court, noting Murphy S.Ct. 1639. The after 541, 557-58, Washington, 369 U.S. facts, these stated: (1962) (“The fact that L.Ed.2d case, by contrast, present 20 of the any petitioner challenge for cause did questioned persons were excused be- jurors strong so selected is evidence that opinion peti- they cause indicated an toas jurors he was convinced the were not biased may guilt. tioner’s This indeed 20 more opinions formed to his and had not as totally than occur in the trial of a would jurors’ guilt.”). about As for the statements by person, sug- no obscure means “community opinions of sentiment” and the gests community poi- so with sentiment co-workers, the voir dire their friends against petitioner impeach soned as to transcript many in indicates that there were jurors displayed indifference who no opinion Detroit who had the that Nevers animus of their own. likely although guilty, believ- was not those (foot- Murphy, S.Ct. 2031 ing guilty Nevers were the most vocal and omitted). note probably majority. appears, It were us, however, Appellant’s jurors actually In the before Brief that those who were ease record, states, they empaneled seriously obligation without citation to the that of took dismissed, jurors and did have prospective 15 were about to undertake bias, opinions guilt. expressing (Appel- preformulated to Nevers’s dismissed Nevada, 5), 25 n. State Bar lant’s Br. at a fact not contested Gentile v. Cf. 1054-55, granting the district court erred in the writ 115 L.Ed.2d this (1991) ability issue. (involving attorney’s stating, speak to the media and about III. INFLUENCES EXTRANEOUS presents danger “Only occasional case THE ON JURY publicity. Empiri- prejudice pretrial Budzyn ap- suggests their cal the few instanc- Nevers and claimed research appellate peals Michigan courts exposed exten- before jurors es have been when that extraneous influences on the de- they able prejudicial publicity, sive are prived of fair them trials. upon the disregard it and base their verdict Court, Hughes v. citing Borg, 898 court.”) (citing presented in law re- evidence (9th Cir.1990), Ninth F.2d and other articles). appears, It view also following precedent, Circuit articulated was, eyes, in a layman’s media the news considering allegations: test for their painting guilty, and that at least Nevers as In order to establish that the extrinsic having juror one was concerned about his reversal, requiring error influence was publicly for fear of harass- name disclosed prove points. initially must two defendant adversely by the ment extremists side First, prove the defendant must jury’s verdict. affected exposed to extraneous influences. case, certainly this not a clear-cut While Second, the defendant must establish say, carefully we unable to after review- are a real these extraneous influences created Appendix the voluminous submitted Joint possibility substantial could place facts this parties, that these case jury’s have affected the verdict. General- league as Irvin in terms of the same ly, in proving point, defen- second community prejudice. bias and actual And dant will demonstrate that the extraneous action, this is a federal habeas in which we substantially related a mate- influence must review decisions the state courts aspect rial and that there is case imposed by under the deferential standard direct connection between the extrinsic if reach a AEDPA. Even we would and the verdict. If the material adverse burden, different conclusion if this case before defendant establishes this initial appeal us on a criminal trial a people diréct from shifts demon- burden to to court, beyond say are to strate federal district we unable that the error was harmless Michigan Appeals’s applica- that a doubt. the error Court of reasonable We examine beyond to if it harmless Supreme precedent determine tion of resulted in the error is con- reasonable doubt because “could decision whose unreasonableness people may do stitutional in nature. jurists,” among be debatable reasonable Drinkard, proving so that the extraneous either 769, because it is “so F.3d duplicative pro- influence was of evidence existing precedent, offensive to so devoid of guilt or of duced at trial the evidence arbitrary, support, record or so as to indicate overwhelming. plausible, that it is outside the universe O’Brien, outcomes,” (citations F.3d at credible 25. and Budzyn, 566 N.W.2d at 235 omitted). say Accordingly, because we cannot The court then noted footnotes Michigan Appeals’s decision “result- four Budzyn that and Nevers had submitted to, contrary jurors, ed in a decision that sat affidavits from three whom had of, application jury involved an unreasonable and of whom had sat on Nevers’s one law, Budzyn’s, proof. determining as deter- established Federal as After that evi- Supreme the United three of the affidavits were mined Court of admissible consideration,20 States,” 2254(d)(1), § hold dence available for their 28 U.S.C. we that sign davit had refused out of fear that it The court to consider the fourth affi- refused davit, public pressure produced bring and juror which the who it had re- would renewed media court, correctly sign. attempted remedy upon ad- had her. The fused Nevers attesting signature by submitting would an affidavit duced that such affidavit the lack of hearsay. attorney juror juror’s make the affidavit inadmissible from an who swore that the had Budzyn, verbally adopted N.W.2d at 236 n. 14. the statements made in the affi- trial, trial); during representation three Georgia, court concluded Waller v. matters had some of the extraneous reached 467 U.S. 104 S.Ct. 81 L.Ed.2d 31 whole, (1) jurors jury namely: as a or the (1984) (right trial); public Sullivan v. (at jury part) film had viewed least Louisiana, 508 U.S. 113 S.Ct. (2) X”; jury “Malcolm a member of Nevers’s (1993) (erroneous L.Ed.2d 182 reasonable reports from had learned news about instruction)); doubt the extrinsic information city’s preparing potential for a riot in the jury only reached the after the trial had (3) acquittal; jurors event of an had begun permeating rather than the entire exposed allegedly been to and had considered process and closely thus was more akin Budzyn supposed fact that Nevers and during errors which presenta occurred had been members of STRESS. a foot- 868; jury, tion of the case to the see id. at note, noted the trial had the court prior Supreme Court extraneous request Budzyn denied a and Nevers influence cases have treated the as issue evidentiary hearing regarding for an these (cit review, subject to harmless error see id. affidavits, accepted instead as true 209, 217, Phillips, Smith v. 455 U.S. the extraneous information had come (1982); Remmer v. jury’s possession into and had been con- States, 227, 229, United explicitly sidered. Because the court found (1954)). Finally, 98 L.Ed. 654 the dis possibility real and substantial these trict court concluded that because the error juries’ matters could have influenced the ver- was of “trial” and not the “structural” dicts, 236-40, see 566 N.W.2d at it conducted variety, subject it was to “harmless error” error The court harmless review. conclud- analysis. generally See Brecht v. Abraham ed that the extraneous matters were harm- son, strength less as to Nevers because . (1993) L.Ed.2d 353 against him, namely the evidence the consis- tency credibility of the EMS workers’ Whether Nevers has shown that he is enti- testimonies, 240-41, id. at but that the extra- 2254(d) § tled under to issuance of the writ neous were not harmless Bud- matters as to appears on his claim of taint us to testimony zyn because the civilian separate have aspects. two first credible, witnesses was did not conclu- aspect obvious his claim head, sively him striking show Green Court’s er- harmless conflicting. and was See id. 241-43. precedent ror was unreasonable. The sec- review, On habeas the district court aspect, clearly implied ond less obvious agreed Michigan Supreme with the Court first, from claim is the that the state jury’s receipt in extraneous any inquiry courts’ failure to into the conduct formation amounted to constitutional error. actual effect of the extraneous information Nevers, F.Supp. 990 at 867. The district jury acquired resulted in a that decision court then determined that the error was contrary clearly to It established law. error,” “trial rather than “structural error.” may right be that Nevers has waived his conclusion, In reaching this the district court claim, argue this second state since the Supreme noted Court has found squarely opinions courts’ do not address “structural errors” in limited circum explicitly issue and it was raised stances, Nevers, (cit F.Supp. see 990 at 867 petition appeal. or us on habeas before Our 335, v. Wainwright, Gideon 372 83 U.S. case, however, persuades review of this us (total 792, (1963) S.Ct. depri 9 L.Ed.2d 799 expressly that where the state court has counsel); right Tumey vation of the v. prevents ruled in a manner defendant Ohio, 510, 437, 273 47 71 L.Ed. U.S. S.Ct. having proceeding in a from criminal (lack (1927) impartial judge); 749 opportunity to obtain the information he 254, Vasquez Hillery, v. 474 U.S. 106 S.Ct. (unlawful pursue must 617, (1986) have a claim of constitutional 88 L.Ed.2d 598 exclu error, ruling contrary race); jurors whether grand sion of of defendant’s 168, 104 question law is inextricable Wiggins, McKaskle v. U.S. 465 S.Ct. (1984) (the 944, right 79 122 harm- L.Ed.2d to self- whether constitutional error was 370 errors, opposed tional “trial” “structur Accordingly, we will address both as-

less. pects claim of taint. al” error of Nevers’s errors amenable to harmless review, “‘had to have demonstrated district court —for agree We injurious substantial and effect influence by that mentioned court —that the reasons ” Brecht, determining jury’s verdict.’ claim that the was influenced Nevers’s 638, (quoting 507 113 1710 U.S. S.Ct. was amenable to information extraneous 776, States, 750, Kotteakos v. United 328 U.S. analysis. Additionally, we error harmless (1946)). 1239, 66 L.Ed. S.Ct. 90 1557 four at least other circuit courts note that qualified in Brecht standard was further juror claims to extrinsic influence have found McAninch, 432, O’Neal v. 513 115 S.Ct. U.S. analysis. subject error” to “harmless 992, (1995), which held (5th Johnson, 986, F.3d 993 v. 136 E.g., Pyles evenly [on “where the record is so balanced — denied, -, Cir.), U.S. 118 S.Ct. cert. had a issue of whether error substan (1998); 707 141 L.Ed.2d Jeffries injurious effect] tial a conscientious (9th Cir.), Wood, cert. 114 F.3d judge grave is in doubt as to the harmless — denied, -, error,” ness of an id. at Smith, (1997); Sherman v. L.Ed.2d win,” petitioner “the must id. (4th Cir.1996), denied, 1134, 1137 cert. F.3d Thus, until the AEDPA “sub S.Ct. 992. 1091, 117 765, 136 S.Ct. L.Ed.2d 519 U.S. injurious governed test stantial effect” Dalsheim, (1997); F.3d Bibbins “trial-type” habeas review of constitutional (2d Cir.) curiam), nom., (per sub cert. denied errors. York, 901, 115 v. New S.Ct. Bibbins (1994). 261, 130 L.Ed.2d 181 2254(d) AEDPA, however, § amended must what stan therefore determine We to decree that the shall not issue unless writ reviewing Michigan we must use dard court’s state affirmance of conviction application of er Supreme Court’s harmless application” amounted to an “unreasonable Supreme Pre-AEDPA ror review. Supreme prece- established precedent originally that constitutional held review, appellate dent. On direct the state occurring the state trial court re errors the claimed would determine whether quire government reversal unless the could Chapman’s error was under “un- harmless beyond prove a reason the error “harmless beyond reasonable a reasonable doubt” stan- generally Chapman v. doubt.” See Cal able question dard.21 The federal habeas courts ifornia, L.Ed.2d assessing must harm- now address when (1967). In 1993 the Court in lessness of constitutional error what the specifically held that Brecht v. Abrahamson determining standard is for whether longer applied no Chapman federal habeas “un- state court’s resulted from an decision deci review of state court harmless error application” Chapman. reasonable sions, although would still be state courts court, recognizing apply on The district the conun- required to that standard direct drum, Instead, review, Michigan Supreme federal reviewed review. habeas grant Chap- eonstitu- determination both the courts were to the writ where Court’s under 1441, (1990) (finding Michigan Supreme the Court had deter- 108 L.Ed.2d 725 that 21. After Mis appellants sissippi Supreme standard, applied Chapman error mined that the had shown the to Court had stated, though Chapman, error even the court “Because it had not cited be constitutional “ burden, statement, we 'We defendants have carried their initial from its likewise are any opinion beyond decide error was be- a reasonable doubt that the must whether hannless yond Budzyn, jury's have the with or a doubt." 566 N.W.2d verdict would been same reasonable heinous, added). Michigan 'especially (emphasis While the or cru at 240 the without atrocious ”); Chapman specifically aggravating Supreme did not cite el' circumstance.' Barker v. Yu Court kins, (E.D.Mich.1998) (it Supreme precedent F.Supp. Court cited other instead), (finding although Michigan Supreme precedent agree that the Ninth Circuit we “clearly applied that not to United district court the Court did cite decisions the it Court, clearly Chapman Supreme applied it proper standard on States harmless error di- Nevers, review,” F.Supp. Chapman analysis, its (citing error and thus rect at 870 harmless 240). Budzyn, Clemons was reviewable under the "unreason 566 N.W.2d at See v. decision 2254(d)(1)). § Mississippi, application” able clause of 494 U.S. quire standards and federal engage man and Brecht habeas courts to /O’Neal approach both that the extraneous information found the identical to harmless-error injurious effect on the had substantial Chapman requires review that state courts verdict, Michigan jury’s and that Su- engage to in on direct review. unreasonably applied preme had Su- Brecht, 636,113 (inter at 507 U.S. S.Ct. 1710 precedent concluding preme Court omitted). nal pointed citations As the Court One the error been harmless. month out, if required federal habeas courts are opinion after the district issued its simply apply Chapman analysis, to case, judge a different of the Eastern result will be to overturn convictions because District of concluded that possibility” there is “reasonable that trial abrogated AEDPA had the Brecht /O’Neal verdict, error contributed at result required standard and the habeas court to meaning odds with the historic of habeas application whether the state assess court’s corpus, which is .to afford relief to those Chapman standard unreasonable. society “grievously wronged.” whom has Id. Yukins, F.Supp. See Barker S.Ct. 1710. (E.D.Mich.1998). 7n. We have found no already explained addressing We have that under opinions from our sister circuits highly appropriate apply standard to now when the deferential of AEDPA standard question.22 Accordingly, may faced with this we application we find state court’s on a clean write slate. of federal law unreasonable unless reason jurists arbitrary, unsup able would find soit 2254(d) permits § language The clear us ported or to existing precedent offensive as Michigan Supreme to review the Court’s ad- plausible be outside realm of credible judication of harmless error to deter- outcomes. think We that when the issue contrary mine whether it is to or resulted before the is federal habeas court the state from an unreasonable error, finding court’s of harmless set test specifically, established federal law— Supreme out Court Kotteakos and Chapman v. harmless error standard of Cali- explicitly precisely quite reiterated in Brecht fornia,23 The threshhold question confront- captures Congress’s expressed intent as ing us is how we are to make determina- and, therefore, ap AEDPA continues to be think that tion. We amendments 2254(d) plicable. § That test is whether the error any way prem- do vitiate in “ injurious Abrahamson, ‘had substantial and effect or in ise set out Brecht v. verdict,”’ determining jury’s fluence in [sjtate fully qualified identify courts are Brecht, 1710; it preju-

constitutional error and evaluate its petitioner’s the habeas burden to demon process dicial effect on the trial under the trial strate that error resulted “actual Chapman, occupy and state courts often superior prejudice.” petitioner Id. If the vantage point able from which to eval- showing, surely make that he will have dem uate the effect trial error. For these reasons, scarcely it logical finding seems to re- onstrated state court’s Circuit, French, prejudicial 22. The Fourth in Green v. under the Brecht standard.” Id. (4th 1998), F.3d 865 Cir. the two with combined 894. specifically addressing question out er one or the other must of wheth apply. It held California, Chapman that the North Carolina rectly (1967), cor- held that "before a Chapman concluded under that the trial harmless, constitutional can be held federal error sentencing jury court's failure to instruct the the court must able declare a belief non-statutory mitigating to ... factors was beyond was harmless a reasonable doubt.” Id. review, under the harmless standard for direct holding, at 87 S.Ct. 824. In so the Court and, fortiori, that the trial court’s error was said, meaning it did "no more than adhere to the exacting harmless under the less standard for Connecticut, Fahy Fahy of our case.” Id. 375 federal habeas review of state court convictions 85, 86-87, U.S. L.Ed.2d 171 under Brecht v. Abrahamson .... (1963) question that "the is whether there is held (citation omitted). at Id. court The then possibility the com- reasonable that evidence finding its articulated reasons for so and con- plained might to of have contributed the convic- by stating, cluded "Green therefore has not met tion.” establishing his burden of that these errors were beyond overwhelming; virtually un- a reasonable Green was it is was harmless error disputed to the were a Chapman standard —was outside that blows head cause doubt —the death; outcomes, of admitted strik- Green’s Nevers plausible credible the realm ing many those But de- blows. Nevers’s ap- an unreasonable resulted from therefore fense centered around his contention that the plication Chapman. solely he to blows struck were intended sub- Supreme Michigan Court held that the The Green, prevent grabbing due to him jury’s possession of extraneous information Green, gun, protect to himself from Nevers’s error to harm- was constitutional amenable object relinquish and to Green to he force Further, analysis. the court con- less error hand, in his claimed clutched which Nevers real and ceded that there was “a substantial something thought sharp to have was possibility these external influences to- Nevers, perhaps weapon. useable as juries’ ver- gether could have affected the short, only claimed he force used conducted harmless dicts.” The court then response Green’s refusal to submit analysis whether the er- eiTor to determine police and that the force he was used beyond doubt, ror harmless reasonable was necessary protect himself and subdue said, which, demon- the court the state could Green. “proving that either the extraneous strate province jury It of the alone to was duplicative pro- of evidence influence was credibility determine Nevers’s and the verac- guilt evidence of duced at trial or the was ity testimony. of his The extraneous infor- overwhelming.” Budzyn, 566 N.W.2d exposed during mation that Hughes Borg, F.2d (citing trial, particularly the course of the (9th Cir.1990)).24 The concluded: STRESS, unquestion- regarding information trial, four wit- the Nevers’ EMS ably potential influencing had the how the lie, nesses, apparent motive to who no testimony jury viewed about his Nevers’s provided testimony interlocking that Nev- Green, beating motivation for and the Michi- repeatedly bludgeoned ers Malice Green gan Supreme acknowledged Court as much. heavy flashlight police his head with court, Michigan The went on to offering not while Green was dazed and against light conclude that of the evidence significant The medical testi- resistance. Nevers, including evidence the court labeled mony injuries to of the Green’s head also motives, “unimpeachable” regarding his testimony. people The substantiated the extraneous influences were be- harmless unimpeachable, proven that there was have yond a reasonable doubt. harbored, that Nevers compelling evidence Michigan We cannot conclude that least, unjustified very intent application Chapman court’s “harm- great bodily against commit harm Green. beyond a less reasonable doubt” test was Thus, Hughes, the under extraneous influ- Chapman explicitly reasonable. includes the ences were harmless. Fahy ... possibility “reasonable omitted). (footnote Id. at 240-41 complained might have [error] contributed agree with the district court that We Chapman, to the test. conviction” Michigan Supreme applied Court (internal quotation 87 S.Ct. 824 marks Chapman beyond a “harmless reasonable omitted). Michigan Supreme doubt” test. We must therefore determine characterized extraneous information re- court was correct whether district garding supposed membership Nevers’s holding that test was STRESS as unreasonable. concrete, the kind factual evidence substantially ability prosecu- compromise issue at the of Nevers’s could heart did, why tion Nevers he did of a to issue a fair verdict because the what said, directly past As the evidence relates to the con- it. police suggests It cumulative evidence that Nevers beat Malice duct officers (9th Cir.1987), Although Hughes Chap- Vasquez, directly F.2d which cites does cite Chapman. California, man v. on Marino v. rely it does may arbitrary, have act- less error so unsupported that these officers been is and preexisting existing their precedent accordance with offensive to as to be out- target young black predisposition to plausible racist side the realm of credible outcomes. men for abuse when encountered Accordingly, we hold that the district court’s evidence was never Malice Green. This granting ground of the writ this on is af- is evi- introduced at trial. It the kind of firmed. a direct and rational con- dence that has Finally, had the trial un court it and an adverse verdict. nection between investigate dertaken to the claim of extrane (first

Budzyn, emphasis in at 239 N.W.2d influence, jury might ous Nevers not have (foot added) original, emphasis the second been able to claim all. constitutional error at omitted). particular significance in note Of It is a matter of established though this case is the fact that even precedent that a criminal defendant containing the extraneous informa affidavits claiming juror implied bias entitled to the juror’s tion included at least one statement opportunity prove to actual bias. See Dennis that the STRESS information “set the tone” States, 162, 171-72, United U.S. deliberations, jury’s for the the trial court (1950) (“Preservation S.Ct. 94 L.Ed. 734 accepted as true the substance those affi opportunity prove to actual is a bias request Nevers’s for an davits and denied guarantee right impar of a defendant’s hearing evidentiary regard to them. jury.”). presented tial When a court trial similarly Michigan Supreme ac with that an evidence extrinsic influence has cepted In the the affidavits. absence of jury reached the which has a reasonable findings regarding evidence or of fact wheth potential tainting jury, process due er information or how the extraneous actual requires that the trial steps court take ly affected influenced members determine what the effect such extraneous jury, conceding and that there was a “real actually jury. on In information possibility” and substantial extrane Phillips, Smith v. S.Ct. jury ous material introduced into the room 940, (1982), the Supreme verdict, jury’s may have affected the that, while no Court made clear court has Michigan Supreme Court nonetheless con jurors ability every shield outside cluded because evidence Nevers’s might contact or influence that affect their “unjustified great bodily intent to commit votes, nonetheless, duty the trial court has a against “unimpeachable,” harm Green” was steps take to ensure that the votes prejudicial extraneous and information rein presented solely on basis of the evidence intent, forcing wrongful the evidence of process jury capable at trial. “Due means wrongful harmless. But the in evidence solely willing and to decide the case “unimpeachable” only if tent was it, judge trial ever evidence before testimony. not to chose credit Nevers’s We prevent prejudicial watchful to occurrences circumstances, think that under these Nevers such and to determine effect of occur point nothing juror’s need more than the they happen.” rences when Id. sworn statement that the STRESS informa S.Ct. 940. The Court went on to hold that jury’s tion set tone for deliberations post-trial juror hearing is sufficient decide Michigan Supreme Court’s acknowl partiality in both the state federal edgment that was the of material kind courts, proceed and that in federal habeas that “has a direct rational connection ing, finding made the state factual between it and an adverse verdict” to demon hearing trial in such is entitled to the court jury’s possession of strate that the the extra presumption correctness. Id. [a] neous information “‘had substantial and S.Ct. injurious determining effect or influence in ” case, Brecht, verdict,’ jury’s Nevers’s state 507 U.S. at present accepted as true the affidavits preju resulted in actual detailing Budzyn Id. ed Nevers and the ex dice. conclude that it would not be We jurists among that had come into the debatable reasonable traneous information Michigan Supreme finding jury’s possession; Court’s of harm- court denied evidentiary hearing through ed to them the mechanism of the request their at trial. Whether we look the failure the attempt determine what effect made no to Michigan the courts to accord Nevers re- actually jury’s had on the that information quested hearing jury on his as an bias claim Clearly the court the failure of verdict. failing apply of the state courts’ instance factual determination does to make such a legal principals by the correct as enunciated since, process, comport due the with Court, Supreme Neelley Nagle, the see findings regard any of fact with absence of the state F.3d an instance jury’s or to what extent the verdict whether issuing squarely in conflict courts’ decisions actually influenced the extraneous Supreme precedent, with a see Green Court information, specific had no facts Nevers French, or an instance of F.3d jury support his claim that the with which to ruling contrary the state courts’ a manner solely on the did not decide the case evidence gov- specific Supreme Court rule that it. properly before claim, petitioner’s erns the habeas see Michigan Supreme did not ad- Court Dubois, O’Brien v. 145 F.3d at we must the failure of the trial court to accord dress conclude that the result of the state courts’ right process his due to have a factu- Nevers clearly proceedings contrary to is established regarding the effect of al determination made Supreme law federal as determined the jury’s the the extraneous information on de- Court.25 liberations, instead, as proceeding we have that the Because we conclude discussed, heretofore to its determination regard to Court’s decision with the jury’s possession of the extraneous jury claim of influence was extraneous both beyond material a reasonable was harmless contrary to and resulted from an unreason- weighed against evidence doubt when application clearly established able Su- guilt. that under- To the extent we Nevers’s preme precedent, AFFIRM the we a state court stand the distinction between granting judgment the district “contrary to” established Su- decision is writ on this issue. preme precedent and one involves prece- an “unreasonable of’ such CONCLUSION dent, Michigan Supreme we think that the reasons, foregoing For the we hold that even to consider the trial Court’s failure concluding district court erred permit opportu- court’s refusal to Nevers corpus petition for a writ of habeas should be nity jury actual resulted to establish bias granted on the claim that Nevers was denied contrary to This decision established law. pretrial publicity. a fair trial because of We Dennis, case such as correctly further hold that the district court or Chandler v. S.Ct. L.Ed. Flori- petition for concluded that a writ of da, 66 L.Ed.2d granted corpus habeas should (1981), refused to set which the Court claim that Nevers was denied a fair trial because aside the defendant’s conviction jury. because extraneous influences on the attempt defendant no to demonstrate made Accordingly, judgment we AFFIRM the specificity “impaired ability of with petition granting the district court for a jurors only the to decide the case on evidence corpus. writ of habeas them,” 581,101 before id. S.Ct. 802. Here but was denied an eviden- Nevers asked for bias,

tiary hearing on his claim of effectively prevented from demon- thus APPENDIX strating specificity extraneous OF DIRE SUMMARY JURY VOIR jury possessed information in fact did impair ability acknowledged # neigh- decide Juror that his bors, solely present- had talked properly case on the evidence with whom he about suppose Chapman 25. We decision or Brecht standards because re- where state court law, right contrary sulted of Nevers's established federal in the denial demon- may admittedly prejudicial error still be to be harmless. In the strate that material found possession actually today, improperly jury’s case of due in the af- before us the denial process jury’s could not be harmless error under either fected verdict.

375 (Voir Tr.). duty, Green, he was called for J.A. at 513 Dire # ease before Juror 5 concerns, further from guilty him con- stated that these he thought Nevers and wanted Tr.). (Voir However, opinion had formed an that victed, “something Dire J.A. at 467 scene, wrong” had occurred at the but did specifically # 1 stated that he had Juror also not it know whether had been or Green opinions concerning Mr. Nev- formed cause, police officers that had its (Voir been J.A. at Tr.), that, ers, Dire and at 473 J.A. (Voir Tr.). Dire He repeatedly also case, although he had read about he acknowledged “opinion that it was his that if questioned veracity of he read what had Malice Green didn’t commit á crime out papers anything, write news “because there, Mr. that Nevers or one of those other believe,” say anything, so its hard to [sic] (Voir 517, 520, did.” 522 defendants J.A. at Tr.). (Voir # 1 J.A. at 464 Dire Juror was Tr.). acknowledged Dire He that based on by passed for defense counsel. at cause J.A. what he had heard and read about the inci- Tr.). (Voir Dire dent, fairly had he made some firm determi- # he acknowledged Juror that was aware concerning nations what had occurred and newspa- through death Malice Green’s surprised that he would be if Defense counsel (Voir per at Dire and television. J.A. put showing did not on evidence that Malice Tr.). “things # that Juror 3 stated from something wrong. Green done J.A. had at everybody stated the media seemed to (Voir Tr.). stated, 525-26 Dire He then how- (Voir Tr.), opinion,” have an J.A. at 481 Dire ever, put he all of that could that out of his said, hype but “After initial also mind look at presented the evidence over, just quieted it incident was then kind Finally, at trial. J.A. at 526-28. he ac- any- really' I think down. didn’t about it knowledged that what based on he had read Tr.). (Voir more.” Dire J.A. at 486 Juror T.V., and seen on he Mr. believed that Nev- # 3 he case admitted that had discussed the ers or one of the other officers had caused professional colleagues with his of various death, that Malice Green’s but he did not occurred, first races when it which included opinion happened, have an how it Rodney King beating, comparison of it is, whether it was murder. J.A. at 533-34. but said that the discussion turned to vio- challenge Defense for cause of counsel’s Ju- general, specific lence in rather than this (Voir # 5 denied. J.A. at 540-46 ror was (Voir Tr.). at Dire incident. J.A. 493-98 Tr.). Dire specifically Juror #3 stated that had he preconceived Juror # 15 stated that had no innocence, opinion guilt formed no or (Voir guilt, as to Nevers’s J.A. at 562 ideas opinion had as to the encounter no whether Tr.), acknowledged Dire that Mr. Nevers “proper” between Green and Nevers was or eyes “sits there innocent.” J.A. at [her] (Voir Tr.). “improper.” at J.A. 499-500 Dire (Voir Tr.). appear Dire .It does not challenge Defense counsel’s for cause of Ju- transcript pages included in the Joint African-American, ror # was denied. Appendix challenged that Juror # 15 was acknowledged # he Juror had heard cause. about the case from the television news- acknowledged Juror # 10 believed she (Voir Tr.). papers. 508-09, J.A. at Dire defendants, maybe one the three all He said that he learned the case when about three, guilty, opinion but had no as to question first his mind concerned what guilt or at Mr. Nevers’s innocence that time. doing Green had Malice been deserve Tr.). (Voir Definitely, J.A. 588-91 Dire by being stopped police. J.A. 510-11 however, standing that of the three she felt (Voir Tr.). why Dire He also wondered it trial, “somebody guilty something.” bring had taken “three officers to down one (Voir Tr.). Dire on in J.A. Later her (Voir person,” Tr.), J.A. at 512 Dire testimony acknowledged voir dire she stated that fact he bothered she believed that Mr. Green died “because of many somebody.”

because should not have taken that at 601- a senseless act J.A. (Voir Tr.). police officers, thought which he “too Dire She stated she (Voir Tr.), many,” family, sympathized J.A. at 514 Dire Green and his subdue (Voir equally passed with Nev- for cause. J.A. at Dire sympathized that she also Tr.). (Voir family. See J.A. at 606-07 and his ers Tr.). appear from the Joint Dire It does # Juror 16 admitted that he had heard sought to have Appendix that the Defense it with his about case and discussed # for cause. friends, 10 struck opinions Juror had whose varied from (Voir guilty guilty. J.A. at to not 736-37 13, cause, passed for # who was Juror Tr.). personal Dire He then stated his guilt opinion no or had stated she that, opinion presented facts was from the (Voir Tr.), innocence, Dire J.A. at media, guilty. at Nevers was not J.A. # disagreed with Juror 10 specifically (Voir Tr.). 737, # was 738 Dire Juror 16 guilty had to be of the defendants that one (Voir 745, passed for at 751 cause. J.A. Dire (Voir Tr.). something, at 619 Dire J.A. Tr.). had specifically stated that he no Juror # 9 # 12 stated that had heard about Juror she innocence, and that he opinion guilt as to or radio, through the T.V. and but had case opinion an from the media did not form J.A, (Voir at Dire not read about it. 763 he if “whole coverage because felt as Tr.). thought what about When asked she yet. story” J.A. at 649 had not been told it, replied, the case when she learned of she (Voir Tr.) any not had Dire He had discus- thought point “I that when the came for or friends co-workers about sions with very going very, grave trial that it was case, mentioning briefly it to other than his really people need to hear the because would (Voir Tr.). Dire Ju- girlfriend. J.A. at 648 a fair trial not facts to make sure was having very # worried about his ror 9 was public opinion.” on or J.A. at based emotion identity after the in the media disclosed (Voir Tr.). she 769 Dire From remarks 641-43, 658-62, 664 at was over. See J.A. public opinion heard she believed was had Tr.). (Voir being He worried about Dire was Tr.). (Voir at Dire divided. J.A. 769-70 She protesting group out- harassed either the opinion, had not an stated that she formed during voir dire or side of the courthouse to wait to do so until the facts and wanted officers, upon (Voir depending how the ver- police out trial. at Dire came at J.A. 776 (Voir Tr.). passed at 661-62 Dire for at dict came out. J.A. She was cause. J.A. Tr.). (Voir Tr.). said, his 794 Dire concern He ability his to render a deci- would not affect Juror # 2 had heard about stated she right sion, for if asked a verdict and that reporting jury duty, the incident before for guilty. not at then it have been J.A. would had heard that died and that she Green “had (Voir Tr.). passed He was 662-63 Dire a beating as a result of from the officer.” Tr.). (Voir at Dire (Voir Tr.). cause. J.A. 675 at Dire ac- J.A. 810 She also knowledged having Mayor’s heard com- that he specifically # 14 stated had Juror police ment that the officers “murder- any opinions about had not formed what ers,” thought Mayor but stated that she very he was not occurred this case because “overboard,” “jumpfed] gone had had (Voir familiar the case. J.A. at Dire gun,” irresponsibly and had when he acted Tr.). at passed was for cause. J.A. He (Voir Tr.). 810-11 Dire said that. J.A. at Tr.). (Voir Dire She further stated that she had not formed the case from # had heard about Juror really opinion and that she had not wor- neighborhood,” rumblings “some too much about the case. J.A. at 812-13 ried T.V., newspaper or which he neither not from (Voir Tr.). Finally, Dire she stated that she (Voir at watched. J.A. 707-08 Dire read nor innocent, presumed Nevers to be J.A. at 828 Tr.). repeatedly he had He said that no (Voir Tr.), Dire that if asked for her vote she whatsoever, J.A. at opinions id., on the case say guilty, and that she would have to (Voir Tr.), pressed if Dire and that opinion concerning guilt no at that time (Voir Tr.). innocence, to find Nev- make a decision he would have Dire J.A. passed ers he had not heard for cause. J.A. at because She was guilty (Voir Tr.). Tr.). (Voir evidence, Dire He was J.A. at 709 Dire (Voir Tr.). # 8 stated she heard from the media See J.A. at Dire Juror He was (Voir passed for cause. police J.A. that several officers were involved Dire Tr.). Green, killing of Malice the media guilty, portraying Nevers as J.A. 858- testimony Appen- limited the Joint (Voir Tr.), pre that it was the Dire jurors dix of who were not chosen to serve opinion vailing of her co-workers Nevers panel tends to show that this crime and (Voir Tr.). guilty, J.A. at 860-61 Dire portrayal media’s it did affect some potential portrayal jurors strongly. potential ju- media’s officers had One her, ror admitted that said, up she had made her bothered she mind she because felt those guilt about Nevers’s that she felt she judgments making such had not heard the give could not him a fair trial. She was story officers’ side of the and thus had not (Voir excused for cause. J.A. at 888 Dire (Voir given them a fail1 at chance. J.A. 859 Tr.). potential juror, Another who was Tr.). Dire also She that she did.not stated peremptorily by counsel, struck defense J.A. innocence, opinion guilt have an as to or J.A. (Voir Tr.), at say 675 Dire had much to about (Voir Tr.), at Dire she had not 849 that opinion concerning “community his senti- opinion an had formed because she not had a ment.” opin- Defense counsel asked him his story, chance to hear the officers’ of the sides community saying,” ion on “what the is and (Voir Tr.), J.A. 859 and it at Dire that was replied, “Well, community, he basically that, legal personal opinion both her and as I hearing guilty. what am is that he is moment, guilty. of that Nevers was not J.A. hearing.” what I’m That’s Defense counsel (Voir Tr.). passed # at Dire 8 Juror was stated, “Okay. words, least, then In other at (Voir Tr.). for cause. J.A. at Dire you community have heard in the that the # 6 Juror stated that she had read about general the community consensus of is that (Voir newspapers, at case J.A. Nevers, you he guilty?” mean Mr. is he — Tr.), opinion Dire she had no as to juror stated, “Right.” to which the J.A. at (Voir Tr.). innocence, guilt or at Dire J.A. Tr.). (Voir potential juror Dire This also people she worked with had all different acknowledged Mayor that he had heard the opinions, ranging guilty guilty. say guilty, that Nevers was that he had a (Voir Tr.). passed J.A. at 883 Dire was She high regard mayor, for the and that when he (Voir Tr.). for cause. J.A. at Dire statement, Mayor heard the make that he thought Mayor must have based it # 7 Juror stated that she had heard about indicating guilt. on some facts Mr. Nevers’s T.V., through ease admitted that her (Voir Tr.). Finally, J.A. at 551-53 Dire this compare first it reaction was to to the Rod- juror potential acknowledged that based on incident, ney King any not out of of notion community, what he had heard in the his own beating’s racially motivated, having been opinion guilty. initial was that Nevers was but of a might rather out fear that there be a (Voir Tr.). poten- J.A. at 553 Dire Another acquitted. riot if the officers J.A. at juror tial stated that he read the media (Voir Tr.). stated, 901-02 Dire further She “[tjhings basically intimating that [Nevers] is however, longer that she no held that fear (Voir Tr.). guilty.” at J.A. Dire This co-workers, talking after with her as was individual, however, same stated that he did opinion acquit- their if the officers were concerning guilt an or opinion not have inno- ted, people of Detroit would not react as necessarily cence because he did believe See Angeles the citizens of Los had. J.A. at what he media. J.A. at read 546a (Voir Tr.). 902-03 Dire She stated that if (Voir Tr.). potential juror Dire Another ad- asked at that moment she would have find initially opin- mitted that she had formed (Voir guilty. Nevers not at J.A. Dire guilt ion Nevers’s first Tr.). passed She cause. J.A. reports angry, thought but had made her she Tr.). (Voir Dire thought she could set these aside because she very #11 Juror stated that he had heard Nevers trial. J.A. deserved fair at 929-30 case, (Voir Tr.). little about the and had not formed potential juror Dire Another also opinions guilt slight opin- as to “a or innocence that time. admitted that she had formed existing precedent, of

offensive to so devoid arbitrary, support, so as to indicate record initially “upset” when she heard ion” plausible, credi- it is outside universe death, thought she also about Green’s O’Brien, outcomes,’ 25[,]” 145 F.3d at ble (Voir at 930 that aside. J.A. she could set Maj. Op. 362, approaches suspension they Tr.). others indicated Dire Still Corpus. must be the Writ of Habeas We opinions because could had not formed the constitutional restriction of mindful of because the media not trust media 9, which, I, among other Article Section alleged crime was not been there when Privilege of things, the Writ of “[t]he states (Voir Dire at 934-36 committed. See J.A. Corpus suspended, not be un- Habeas shall Tr.). these, admitted One in Cases Rebellion or Invasion less when angered learned of when he first he was privi- public Safety may require it.” The (Voir Dire J.A. at 935-37 Green’s death. Corpus lege great Writ of Habeas Tr.). congres- important one. The an ancient light must be read sional admonitions BRIGHT, concurring Judge, Circuit history. terms the writ’s extensive separately. great case and other cases which the Writ ma I the result reached concur granted, purpose the main the Writ is to separately disagree I jority. I write because immediately from an person release a uncon- majority’s the “unrea approach to with the person’s liberty. stitutional constraint majority The com standard. sonableness” jurist” approach properly The “reasonable entirely standards bines the not consistent statutory language the AED- balances by the and Fifth Circuits. enunciated First against PA restriction with the constitutional (1st Dubois, v. 145 F.3d See O’Brien suspension Corpus. of the Writ of Habeas Johnson, Cir.1998); v. 97 F.3d Drinkard clearly The standard in Herbert accords Cir.1996). (5th amalgamation language the AEDPA. To articu- with the rigid too a bar to two standards creates late in case a standard for unreasonable- gives proper alone relief. standard Either adopted in ness other than that Herbert application of deference to a state court’s unnecessary. seems unwise and clearly precedent established required by in the AEDPA. language prefer I the Fifth Circuit’s standard articu Drinkard, at which this

lated in 97 F.3d adopted Billy, previously

circuit Herbert (6th Cir.1998). adopt In 160 F.3d LABOR RELATIONS NATIONAL standard, as follows: we stated BOARD, Petitioner, AEDPA, district court could Under the Union, Automobile, International United unrea- find the state court determinations Agricultural Implement Aerospace And “only it can be said that sonable when (UAW), America, Workers AFL-CIO question jurists considering the reasonable Intervenor, that the state court would be of one view words, we ruling was incorrect. other INTERNATIONAL, only if a state court grant can relief habeas AUTODIE INC., Respondent. clearly incorrect that would decision is so ju- among reasonable be debatable No. 97-5288. rists.” Appeals, United States Court of Drinkard, Herbert, (quoting F.3d Circuit. Sixth 769). F.3d Argued Dec. 1998. adoption the unrea- of “the rule that Decided March application of sonableness of a state court’s precedent Supreme Court established ju- among reasonable will not be ‘debatable

rists,’ Drinkard, 769, if it ‘so F.3d

Case Details

Case Name: Larry Nevers v. George Killinger, Warden of Fmc Fort Worth, Forth Worth, Texas, Kenneth McGinnis Michigan Department of Corrections

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Mar 1, 1999

Citation: 169 F.3d 352

Docket Number: 98-1039

Court Abbreviation: 6th Cir.