Marcus Reymond Robinson v. Marvin L. Polk, Warden, Central Prison, Raleigh, North Carolina

Reymond ROBINSON, Marcus

Petitioner-Appellant, POLK, Warden,

Marvin L. Central

Prison, Raleigh, Carolina, North

Respondent-Appellee.

No. 05-1. Appeals,

United States Court of

Fourth Circuit.

Argued Sept. 2005.

Decided Feb.

& Supp.2005). granted We certificate appealability consider two claims raised Robinson: that the trial court’s during guilt his phase instructions Amendment; the Eighth trial violated and juror’s that a recitation of a Biblical during passage sentencing deliberations vi- olated the Sixth Amendment. Applying standard of required deferential review by the Antiterrorism and Death Effective (AEDPA), Penalty Act we conclude the North Carolina court’s decision denying Robinson relief on these claims was application not an unreasonable clearly established federal law. Accord- deny ingly, Robinson’s petition we and his request evidentiary for his hearing on Bible claim.

I. Bradley, ARGUED: Kevin Patrick Dur- The facts are set forth in the adequately ham, Carolina; North Geoffrey Wuensch order North Superior Carolina Hosford, P.C., Hosford, Hosford & Wil- (MAR court) denying Robinson’s Carolina, North mington, Appellant. for (MAR): appropriate motion for relief Blanche Spalding, Special Deputy Valerie The State’s evidence at trial tended Attorney General, Depart- North Carolina on morning July show that of 21 Justice, Carolina, Raleigh, ment of North year seventeen old Erik Tornblom Appellee. Roy for Cooper, ON BRIEF: did not return home from res- Chi Chi’s Carolina, Attorney General of North Wil- taurant, employed. where he was Erik Farrell, Jr., liam N. Deputy Senior Attor- rising Douglas Byrd was a senior at General, Carolina, ney Raleigh, North High School and worked at Chi’s Chi Appellee. from appropriately pm 6:00 until [sic] body His midnight. was la- discovered WILLIAMS, KING, Before and day, having ter that been shot in the SHEDD, Judges. Circuit a shotgun. face with A witness testified he trial that observed a black male by published opinion. Judge Affirmed drive Erik’s car to the location where majority opinion, WILLIAMS wrote the recovered, was get later out of the vehi- Judge joined. Judge which SHEDD wipe cle off steering and and wheel wrote a separate opinion dissenting KING identified, door handle. black male part. Williams, as Roderick [sic] was thereaf- WILLIAMS, Judge. Circuit and ter arrested named as [Robinson] person involved with him in mur- Reymond Robinson, Marcus a North der of Erik Tornblom. inmate, Carolina death-row appeals the petition district court’s denial of his habeas was into [Robinson] thereafter taken (West Mi- filed under 28 U.S.C.A. custody properly and advised of his days After and earlier had years old eleven rights, which he waived. randa prison. in the involvement been released denying any initially that he murder, admitted [Robinson] and Williams were indicted Robinson Erik Torn- had watched and Williams August a North Carolina Tornblom a store. While blom enter first-degree one charged with count of store, out a pulled [Robinson] in the murder, of first-degree kidnap- one count con- shotgun, had been which sawed-off robbery dangerous count of ing, one clothes, gave it to in his cealed once count of a weapon, possession store, left the As victim Williams. destruction, of mass count of weapon one for a asked and Williams [Robinson] larceny, posses- felonious one count of car, they entered As soon ride. ad- of a stolen vehicle. As Robinson sion gun of Erik. put the to the back Williams mits, him to drive neck forced and Tornblom’s dire,] prosecutor voir the ensured [at and location that [Robinson] to a every member of the venire thor- that confession, In his ordered. Williams religious pref- revealed his oughly or her boy kept “[t]he stated that [Robinson] regarding of the application erences ... hurt not to pleading and for us begging Moreover, penalty. potential each death any money.” him, he didn’t have because required unequivocally to of the ordering out [Tornblom] After religious their beliefs would state Accord- car, made lie down. he was to with their and not interfere individual then, [Robinson], shot ing to Williams duty to on the ... sen- collective vote shotgun. in the the face with [Tornblom] tencing phase[ ]. wallet then took [Tornblom]’s [Robinson] 438.) (J.A. at money the with Williams. split and 13, July trial 1994. Robinson’s on had police began led to where he [Robinson] day trial, plead- of second On the Robinson shotgun also showed the and hidden except all of for guilty to the offenses ed spent shotgun the shell was them where That first-degree charge. the murder spent gun Both and the ejected. the jury tried to the on two differ- charge was police. were recovered shell felony and murder theories: murder ent show, two evidence tended Other malice, deliberation, premedita- and with murder, days prior [Robin- murder). jury (premeditated tion that “he was told Williams’ aunt son] Robinson, verdict, of by special convicted whitey”. him On going [sic] to burn a theory.1 murder each first-degree under murder, ob- morning [Robinson] friend, shotgun who tained the trial, sentencing of the During phase he heard tell Williams [Robinson] relating to circum- jury heard evidence or “do” a Quik Stop to rob wanted mitigat- and aggravated that both stances murder, boy. [Robin- After the white culpability the extent Robinson’s ed a Mend that he had robbed told son] charge At the its crime. outset of him in the night and shot guy the before emphasized jury, the trial court head. necessary that absolutely “[i]t them that 386-388.) give as I (J.A. apply the law you time of these understand At the might you it is or you, and not as think events, just eighteen turned it to Robinson had Williams, 137, trial, 478 S.E.2d N.C. Williams State v. separate found In a guilty premeditated guilty of murder but robbery felony with a firearm. murder and (J.A. 213.) guide February To like it be.” On filed Robinson pre- consideration of petition the evidence the instant in the United sented, provided the trial court States District Court for Dis- the Eastern forma entitled “Issues and Recom- trict of raising North Carolina thirteen Punishment,” as to which con- mendation claims of constitutional error. The State possible of a written list of two sisted summary judgment moved for on Robin- aggravating twenty circumstances petition, September son’s and on circumstances, mitigating and in- possible the district denied Robinson’s re- apply structed how to law to quest evidentiary for an hearing (J.A. each these circumstances. 215— granted summary the State’s motion for 247.) form, jury completed find- judgment. February On dis- aggravating circumstances both trict court entered an order Rob- denying mitigating but six of the circum- of appealability inson a certificate on all of jury ultimately stances.2 The concluded granted timely his claims. We Robinson’s the aggravating circumstances out- petition appealability certificate of weighed mitigating circumstances and two issues: whether the MAR court erred unanimously that Robinson recommended in failing grant him relief on his be sentenced to death.3 claim that his death sentence violated the Eighth Amendment and his claim that

Robinson’s conviction and sentence were presence the of a Bible during jury delib- on appeal by affirmed direct a unanimous erations violated the Sixth Amendment. Supreme Carolina North Court. State v. Robinson, 74, 342 N.C. S.E.2d 463 218 II.

(1995). The Supreme United States Court thereafter denied certiorari Rob- review. de We review novo the district court’s Carolina, 1197, v. inson North U.S. 517 § deny decision petition 2254 on based (1996). 1693, 134 L.Ed.2d 793 court, the record the MAR applying before 1, 1996, November

On Robinson filed his the same standards as the district court. Following MAR. an evidentiary hearing Whittlesey Conroy, 213, on v. 301 216 F.3d (4th Cir.2002). claims,4 of his AEDPA, some the MAR court denied Pursuant the relief on all scope Robinson of his claims. The highly of federal review is con- Supreme North Carolina may grant Court denied dis- petition strained. We cretionary review of rul- respect adjudicated the MAR court’s claim on Robinson, 847, ing. State v. 350 N.C. 539 merits in court if state the state court (1999). to, S.E.2d 646 contrary decision was either un- or an 2.Specifically, aggravating appears found as 3. It that Robinson was never sen- circumstances that the was murder commit- charges pled tenced for the to which he robbing ted while Robinson was Tornblom Robinson, 74, guilty. State v. 342 N.C. 463 heinous, "especially the murder was 218, (N.C.1995) ("Prayer S.E.2d 221 judg- for (J.A. 249.) atrocious or cruel.” The at charges ment was continued as to the mitigating found circumstances in Robin- pled guilty, which defendant had and defen- history history, age, son’s lack of criminal of murder.”). first-degree dant was tried abuse, injury, childhood childhood head problems. behavioral mental appeal, 4. As relevant to this the MAR court unanimously mitigating found that cir- granted evidentiary hearing on Robinson's outweigh cumstances were insufficient to claim, Eighth Amendment but denied a hear- aggravating ag- circumstances and that the ing on his Sixth Amendment claim. gravating sufficiently circumstances were penalty. substantial to warrant the death

355 of, clearly phrase U.S. at 120 estab- S.Ct. application reasonable “clearly as established law” refers “to the federal law determined lished 2254(d)(1). dicta, holdings, opposed as to the of [the 28 U.S.C.A. Supreme Court. Supreme] as of time Court’s decisions contrary to A decision of a state court is of the Id. relevant state-court decision.” “if the clearly federal law state established Robinson argues S.Ct. 1495. opposite arrives at conclusion court MAR court’s decision on Supreme] Court on a by [the that reached Eighth and Sixth Amendment was issues or if the court decides question law state application an unreasonable es- Supreme] differently than [the a case law.5 We examine claims tablished these materially has a set of indistin- in turn. v. (Terry) facts.” Williams guishable Taylor, S.Ct. U.S. A. (2000). A state court 146 L.Ed.2d 389 argument Robinson’s first adjudication application anis unreasonable imposed his sentence in viola death state “cor- of federal law when Eighth right tion of his Amendment governing legal rule rectly identifies Florida, established Enmund ap- but cases] Court’s [from L.Ed.2d unreasonably facts plies Enmund, the defendant was case,” 407-08, 120 ... particular id. robbery getaway driver in a that re “applies precedent in a Id. sulted in death. S.Ct. 3368. one in which the context different solely aiding Based on his participation one to precedent was decided and which robbery, he was abetting convicted of the legal principle prec- extension first-degree murder and sentenced to apply fails to edent is not reasonable [or] death. at Id. 3368. in a principle precedent the of a context his Supreme Court reversed death sen unreasonable,” such failure is Green where tence, Eighth that holding the Amendment French, (4th Cir.1998), v. 143 F.3d prohibits imposing penalty the death on a grounds by (Terry) overruled on other felony “who and abets a defendant aids Williams, 362, 120 1495, 146 murder is the course of which a committed Corcoran, 389; L.Ed.2d see also Oken kill, not others but who does himself Cir.2000) (4th (not n. 220 F.3d kill, killing or that a take attempt to intend [Supreme (Terry) that “the force will em place or that lethal be open the of wheth question left] Williams 797, 102 ployed.” Id. at S.Ct. 3368. er” Green's definition the “unreasonable correct). that under trial Robinson contends the application” was state instructions, jury not clearly was application court’s established court’s that he required to find either killed “objectively federal law must be unreason con- able,” to kill Tornblom order to may and “a federal court intended habeas that, first-degree that vict him murder and simply issue writ because result, as a his sentence violates independent judgment in its that death concludes rejected this The MAR court applied relevant state-court decision Enmund. merits, and conclude clearly erroneously argument on the we established federal law Williams, that court’s decision was not incorrectly.” the MAR (Terry) argue lished law. does not that MAR Robinson clearly contrary was estab- court’s decision (J.A. 118.) application unreasonable of Enmund. Robinson contends that this fact, the trial court’s instructions required “acting-in-concert” instruction failed to dif- to find both that Robinson killed ferentiate between felony pre- murder and Tornblom and that he intended his death meditated murder such that he could have to occur. been convicted of the latter if even jury believed that Williams killed Torn- noted, As Robinson was tried on theo- (Robinson) blom and that he lacked the premeditated ries of murder felony requisite intent. Addressing premeditated murder. mur- first, der charged the trial court that disagree. We The trial felony court’s prove the State must ... that [Robin- premeditated murder and charges murder intentionally son] and with malice killed separate were and distinct from one anoth- deadly with a weapon [Tornblom] .... er, and the elements of each offense were proximate act was a [Robinson’s] Moreover, delineated. by its own cause of death .... [Tornblom’s] acting-in-concert terms the charge did not intended to kill [Robinson] [Tornblom] apply to premeditated charge. murder .... pre- [Robinson] acted after Instead, by referring legal effect of meditation .... [and] [Robinson] joint commission of a “robbery with a acted with deliberation. (J.A. firearm,” 118), acting-in-con- (J.A. 115.) charge clearly This required cert charge explicitly linked to find that Robinson killed Torn- felony murder theory. blom and intended his death to occur in If this enough, were not immediately order him premeditated convict giving after acting-in-concert instruc- murder. tion, the trial court summarized the re- however, argues, Robinson that the trial quirements for both theories of murder: felony court’s charge, murder which fol- So I charge you that if find from the lowed, ambiguity created an pre- in the beyond evidence a reasonable doubt that meditated charge. murder After setting on or about alleged date the forth felony murder,6 the elements of defen- dant intentionally killed the victim with trial court gave the following instruction: a deadly weapon and that proxi- this Ladies gentlemen of jury, the for a mately caused the victim’s death and person guilty crime, to be of a not is that the intended to kill the defendant necessary that he himself do all of the malice, victim and that he acted with necessary acts to constitute the crime. after premeditation and with delibera- If persons two or more together act with tion, it your would be duty to return a a purpose common robbery commit verdict guilty degree murder of of first

with a firearm and are actually or con- malice, on the basis premeditation, of structively present at the time the crime and deliberation. committed, each of them is held re- sponsible for the acts of However, the others done you if do not so find or have in the robbery commission of with a a reasonable doubt as to one or more of firearm. things, you these would not return a 6. The trial court listed felony the elements of a firearm the defendant killed the victim with "First, murder as follows: that the third, defendant deadly weapon. a And that the defen- attempted committed or robbery to commit proximate dant's act was a cause of the vic- Second, with a firearm.... that while com- (J.A. 117-118.) tim's death.” mitting attempting or robbery to commit with (J.A. 119.) Moreover, by charging degree murder of first guilty of

verdict malice, the could premeditation, the summation that convict of on the basis felony of murder if it that Robinson found and deliberation. or he either himself “aet[ed] aet[ed] defen- you not find the or Whether together with to commit rob- [Williams]” murder on the degree of first guilty dant firearm, bery again with the trial court malice, and delib- premeditation, basis of expressly acting-in- linked and limited the eration, also consider whether you will felony concert murder murder under instruction degree of first guilty he is 119.) (J.A. at The summation felony charge. murder rule. degree the first that the could find reaffirmed Robin- you if find from charge I So murder if guilty premeditated son of a reasonable doubt beyond evidence in- it found that he killed Tornblom and defen- alleged date the about the on or tended death to occur. Because the his acting dant, by himself or acting either required trial court’s instruction Williams, had Roderick together with court did findings, to make these took and a firearm and possession his MAR deny- unreasonably apply not Enmund person away property from carried Eighth Amendment claim.7 ing Robinson’s without his vol- person presence by endangering untary consent with person’s life

threatening another B. firearm, use of use or threatened knowing that he was the defendant intend- property to take

entitled argument is based Robinson’s second permanent- him of its use deprive (1) his sentence subparts: two death attempting committing or ly and while his imposed was violation of Sixth robbery firearm to commit of confrontation because right Amendment the de- the victim and killed defendant against evidence Bible amounted to proximate cause act was fendant’s sentence him that his death death, your duty it would be the victim’s his Amend- imposed in violation of Sixth guilty of first a verdict of to return sentencing impartial deliber- right ment felony murder degree murder under reading was an the Bible ations because rule. sup- jury. To improper upon influence court, in MAR contentions added).) port these (J.A. (emphases at 119-120 two the affidavits of presented Robinson summation, the court reaffirmed In this their con- that summarized students law ap- acting-in-concert instruction jurors in with two versations felony by charging only to murder plied state: case. Those affidavits guilty could be found that Robinson sec- juror [a revealed that [first] if Robinson premeditated murder for a bailiff to juror had asked MU” Tornblom. ond] “intended to “killed” and insti- was the evidence showed that Robinson between 7. We also note the stark differences Florida, perpetrated robbery gator kidnaping v. 458 this case and Enmund of a 3368, 782, 1140 S.Ct. 73 L.Ed.2d 102 of his intent gunpoint, at told others Enmund, supported no more the "record following day boy,” a “white "bum” ... inference that Enmund was than the equate killing To Rob- bragged Tornblom. of the road at the time the car the side Enmund, getaway driver follow- a inson with killings, waiting help es- the robbers murder, spe- robbery ing that resulted Such cape.” Id. at 102 S.Ct. 3368. cious. case, cry this where are far from facts .a 358 during

bring a bible deliberation on Robinson conceded in his habeas sentencing. petition He recalled that the bailiff that “the [MAR] denied [his bible, merits,” provided juror and the second Sixth claim on Amendment] (J.A. 437), at concerning “eye read an and he does not passage argue now eye.” subject an otherwise. We therefore requested The one who this claim, Eighth as we did his citing scripture bible was Amendment passage claim, to AEDPA’s jurors, deferential attempt to convince other in- standard Jarvis, review. See Bell v. cluding one we interviewed ... 236 F.3d (4th Cir.2000) (en banc) 158 they change position (holding that a should their denying state court decision favoring petitioner one a life sentence to one favor- post-conviction relief ... “[on] death sentence. The bible merits passage must be reviewed jurors was read to under the deferential the other before the 2254(d)(1)”). provisions §of final for a To satisfy vote death sentence.... standard, this AEDPA require “does not juror [A corroborated the third] first [Supreme indeed, citation of Court] cases— statement, juror’s and confirmed the require does not even awareness of juror fact that the had a bible [second] Packer, cases.” Early [those] v. during sentencing, deliberations on how- (2002) L.Ed.2d 263 juror ever the third could not recall (emphasis in original). “In assessing the bible, provided whether the bailiff reasonableness of the state court’s applica juror brought whether the had [second] law, [therefore,] tion of federal the federal it into ju- the deliberations. The third courts are to review the result ror ... juror remembered the [second] reached, state court not ‘whether [its deci quoting scriptures during sentencing, ” well sion] [was] reasoned.’ v. Wilson Oz but specific did not remember the pas- mint, (4th Cir.2003) 352 F.3d sage quoted. Bell, 159; (quoting 236 F.3d at Wright v. (J.A. 283-84.) (4th Angelone, Cir.1998); 151 F.3d and Hennon Cooper, 109 F.3d argued Robinson also that he pro- could (7th Cir.1997))(alterations in original and duce four willing who were to testi- added). emphasis fy evidentiary hearing. these facts at The MAR court denied the Bible claim In examining the merits of Robinson’s evidentiary hearing, claim, without an stating we, court, like the MAR will assume that “there is insufficient evidence to re- allegations factual set forth the law quire evidentiary issue, hearing on the students’ affidavits are true. See Bacon v. taking Lee, (4th even Cir.2000) (as- submitted materials in the 225 F.3d (J.A. light most favorable to suming [Robinson].” on federal review the truth and 428.) The MAR court held “that admissibility of petitioners factual allega- alleged occurred, reading, Bible if it tions where the MAR [was] court denied an evi- extraneous, prejudicial claim). information” dentiary hearing on the af- These required (1) under North Carolina per- law to allege following: juror fidavits mit the impeachment for, of a verdict. asked provided, and the bailiff a Bible (J.A. (internal quotation deliberations; marks during sentencing omitted).) “eye eye” read an for an passage;8 allege 8. "eye Robinson does not "eye eye.” which for an for an The Old Testament con- eye” passage King (1) was read. The James passages: "Eye eye, Ver- tains three such for tooth, provides hand, foot,” sion of the Bible several references tooth for hand for foot for

359 Despite protections these venerable (3) to the other was read passage defendants, the Sixth on a sen- afforded to criminal a final vote death jurors before (4) that all evi tence; juror passage require read the does not Amendment fellow by tending to convince his the defendant attempt dence introduced in an a death sentence. impeach the-jury’s to vote for verdict be considered Tanner v. United by the courts. See provides, Amendment The Sixth 117, 2739, States, 107, 107 S.Ct. 483 U.S. accused shall that “the part, in relevant (1987). fact, In the com 97 L.Ed.2d 90 ... right trial[ ] to a enjoy the “prohibited the ad generally mon-law rule confronted to] ... be [and impartial juror testimony impeach mission of him.” U.S. against witnesses with the 117, 107 2739. Id. at S.Ct. verdict.” Const, by an right The to trial amend VI. justifi explained ... fair trial jury “guarantees impartial Pless, in McDonald v. cation for this rule jurors.” indifferent impartial, by panel 264, 783, 59 L.Ed. 1300 238 U.S. 35 S.Ct. Dowd, 81 S.Ct. v. 366 U.S. Irvin (1915), century: early last decided (1961). right This 1639, 751 6 L.Ed.2d communication, con “any private prohibits established that verdicts it once be [L]et indirectly, tact, directly or tampering solemnly publicly made and returned the matter during trial about juror awith court can be attacked and set aside into v. jury.” Remmer pending before testimony part who took on the of those 229, States, 227, 74 S.Ct. 347 U.S. United could publication and all verdicts their (1954). right 450, L.Ed. 654 98 be, be, by an many followed would “jury’s ver that the requires confrontation discovering some- inquiry hope de upon based the evidence dict must be finding. thing might which invalidate the Louisi Turner v. at the trial.” veloped be harassed and beset Jurors would 546, 472, ana, 466, 13 85 S.Ct. 379 U.S. in an to secure party the defeated effort (1965). addition, it “neces L.Ed.2d might of facts which from them evidence very at the least sarily implies sufficient to set misconduct establish a defendant developed against evidence thus se- If evidence aside a verdict. stand in a from the witness come shall used, the result be thus cured could judi there is full where public courtroom intended to make what was would be to right[s].” of the defendant’s protection cial deliberation, the constant private be a (internal quotation Id. at 85 S.Ct. public investigation; subject omitted). apply equal rights These marks and freedom of all frankness destruction tried to sentencing proceedings ly to and conference. of discussion Illinois, 504 U.S. jury. Morgan See 267-68, This common- S.Ct. 783.9 Id. at 719, 727-28, L.Ed.2d in Fed.R.Evid. (1992). codified law rule has been cheek, breach, thy right turn to 21:24; (2) eye er shall smite thée for "Breach for Exodus We Matthew' 5:38-39. hath caused a the other also.” eye, for tooth: as he him tooth man, assume, argument, to him that the so shall it be done the sake of blemish in for 24:20; (3) eye "And thine again,” Leviticus Testament. from the Old read life, eye go for pity; shall for but life tooth, shall Pless, McDonald v. hand, foot for eye, hand for tooth for case, a civil 59 L.Ed. foot,” the New Deuteronomy But in 19:21. reasoning its said, Supreme Court has cited Mount, but the on the Jesus Sermon Testament’s See context. said, approval in the criminal eyeAn it hath been "Ye have heard that States, 483 U.S. v. United say Tanner But I eye, a tooth for a tooth: 97 L.Ed.2d 90 ye whosoev- you, resist not evil: but unto 606(b) (1966), many example, states’ rules of evi- 17 L.Ed.2d 420 dence, including North Carolina’s.10 attorney, speaking the defense after jurors, prepared alleging an affidavit law,

Like the common the Federal Rules and the North Rules of Evidence Carolina assigned a court bailiff to shepherd the exception of Evidence contain an to this sequestered jury, which for eight sat general prejudicial rule when “extraneous days, jurors stated to one of is improperly brought information” to the presence of others while the jury’s attention or when an influ- “outside walking public out on a sidewalk: “Oh improperly brought upon ence to bear [is] [petitioner], fellow wicked he is 606(b); any juror.” Fed.R.Evid. N.C. guilty”; and on another occasion said to 606(b) 8C-1, (2003); see § Rule Gen.Stat. juror another under similar circum- Tanner, also 483 U.S. at stances, “If anything wrong there is [in (describing exceptions to the com- finding petitioner guilty] Supreme juror excluding testimony).11 mon-law rule Court will correct it.” exceptions These track the Sixth 363-64, Despite 87 S.Ct. 468. Amendment protections embodied juror’s the fact the affidavit was based Jury and Impartial Confrontation Clauses. testimony, Court did not First, exception preju for extraneous discuss whether the affidavit was admissi- dicial information allows the court to con Instead, simply accepted ble. juror allegations sider the evi- that the defendant’s rights to confrontation were dence and concluded that violated. bailiffs Gladden, Parker v. 385 U.S. statements were tantamount to testimoni- 606(b) provides: upon juror 10. Federal Rule of Evidence event or condition the mind of a concerning processes by or the mental (b) Inquiry validity into of verdict or indict- which the verdict was determined.... Upon inquiry validity ment. into the (c) dispersed, After the has the testimo- indictment, juror may a verdict or ny juror may impeach of a be received to testify any as to matter or statement occur- served, the verdict of the on which he ring during jury’s the course of the deliber- subject (a), to the limitations in subsection anything upon ations or to the effect of only when it concerns: any juror’s or other mind or emotions as (1) Matters not evidence which came influencing juror to assent to or dissent to the attention of one or more from the verdict or indictment or concern- under circumstances which would violate juror’s processes mental in connec- right the defendant’s constitutional therewith, except juror tion may that a tes- him; against confront the witnesses tify question on the whether extraneous intimidation, Bribery, attempted prejudicial improperly information was bribery juror. or intimidation of a brought attention or whether § N.C. Gen.Stat. 15A-1240 any improperly outside influence was brought upon any juror.. may to bear Nor however, exceptions, 11. Even under these no juror’s any affidavit or evidence of state- juror may testify to the effect of either the juror ment concerning a matter jury's information or an influence deli- on the precluded about which the would be process, berative but that the informa- testifying pur- be received for these jury. tion or influence came before the See poses. States, Mattox v. United 606(b) North Carolina Rule of Evidence (1892)(’’[A]juryman 36 L.Ed. 917 counterpart. identical to its federal See N.C. 8C-1, may testify any bearing upon 606(b) (2003). facts § Gen.Stat. Rule North question any provides: Carolina law the existence of extraneous also (a) Upon although inquiry validity influence not as to how far that into the of a verdict, mind.”); may operated upon no evidence be received influence his N.C. statement, conduct, 15A-1240(a). show the effect Gen.Stat.

361 “it and, 546. The Court concluded that evidence, they were not 85 S.Ct. because al trial, blinking reality recognize witness stand not to made on the would be his constitutional was denied defendant in this con- prejudice the extreme inherent 364, Id. at 87 confrontation. right of throughout tinual the trial be- association (“We undevi- have followed the 468 S.Ct. jurors key wit- tween the and these two of confrontation rights that the ating rule 473, prosecution.” nesses for the Id. at 85 fun- among are and cross-examination S.Ct. 546. of a constitutional- requirements damental exception exclusionary The to the rule (internal marks quotation ly fair trial.” influences, hand, for outside the other omitted)). and citations right impartial to an protects a defendant’s Louisiana, v. 379 Similarly, Turner States, jury. In Remmer v. United 347 546, 424 466, 13 L.Ed.2d 85 S.Ct. U.S. 450, (1954), 227, 654 74 S.Ct. 98 L.Ed. U.S. key (1965), were deputy two sheriffs who example, person attempt- unnamed an responsi- were also witnesses prosecution 228, juror. ed to Id. at 74 S.Ct. bribe jury during sequestration for the ble verdict, jury 450. Before the returned 467-468, Id. at trial. the defendant’s the incident reported “ate with deputies [the 546. These S.Ct. prosecutor, informed the judge, who them, and did er- jury], conversed with investigate. FBI in to Id. was called Id. at 85 S.Ct. 546. rands for them.” however, defendant, informed evi- The was not discussing the source of the Without verdict, jury’s impeach until after the trial. Id. dence used of the.incident Amend- declared the Sixth the Court that a hear- Court concluded “necessarily trial right ment’s reqüired to determine whether the was very that the evidence at the least implies investigation involved bribe and thé FBI’s come against a defendant shall developed communication, contact, or tam- “private public in a court- from the witness stand thereby exerting juror,” ... pering judicial protection there is full room where verdict, influence on the outside 472-73, rightfs].” Id. at the defendant’s hearing would inevita- despite the fact the (internal quotation marks 85 S.Ct. .jurors testify as to their bly require omitted). association deputy sheriffs’ exposure to the bribe or the FBI’s investi- that the would with the risked 229-230, 74 450.12 gation. Id. at depu- determinations about make their Parker, Turner, and In contrast outside of the ty trustworthiness sheriffs’ Remmer, external influ- which involved courtroom, abili- eliminating thus Turner’s jury,13 is the line Su- upon a ences deputy sheriffs ty to cross-examine involving an internal cases preme Court jury’s ability effectively tainting States, v. influence.14 In Tanner United neutrally. Id. at evidence weigh the Corcoran, unreasonably applied estab- argues that Burch v. 12.Robinson by the Su- law as determined Cir.2001) lished federal (4th compels us to F.3d 577 preme . Court. improper-influence grant him relief on his Burch, held, outside of AED- claim. we influence” as term "external 13. We use the strictures, juror's reading Bible PA’s prejudi- to refer to both extraneous shorthand not, during sentencing deliberations and outside influences. cial information more, improper on the influence without question this jury. dissenting colleague argues We whether good Id. 14. Our Gladden, de holding "artificially split[]” even on Parker v. could assist Robinson we review, 17 L.Ed.2d 420 assuredly provides sup- no but it U.S. novo Louisiana, (1966), argument Turner that the MAR port for Robinson’s 97 L.Ed.2d side or outside the room but is rath- (1987), example, the defendant er “based on the nature of the [influ- for 117, Id. at In evidentiary hearing ence].” at which 107 S.Ct. 2739. sought an Tanner, jurors’ Supreme disagreed proposed alleged he to examine argument with the defendant’s that drug during and alcohol use the trial. 117, compelled Sixth Amendment the district Id. Supreme 107 S.Ct. 2739. The jurors’ court in- to consider evidence of grant Court refused to the defendant re- toxication, holding instead that other Parker, Turner, as- because, lief unlike and Remmer, pects process protect of the trial the de- inquiry allow hearing would right jury fendant’s to free of internal processes jury.” “into the internal of the jury: upon influences Id. Although 107 S.Ct. 2739. provided Court has never a for- suitability of an individual in- deciding particular service, course,

mula for whether a responsibility jury upon jury fluence was external or in- Moreover, during is examined voir dire. ternal, approvingly cite to during jury did lower trial by is observable court, counsel, holding by courts that the distinction turns by person- and Moreover, jurors not on whether the influence occurs in- nel. are observable over, (1965), protesting description L.Ed.2d and Rem in our of Parker Turner, States, recognize and the dissent fails to mer v. United (1954), implicates sepa- Robinson's Bible claim two categories: 98 L.Ed. 654 into two protec- rate and distinct Sixth Amendment prejudicial cases involved extraneous in (i.e., right impartial jury tions: to an (Parker, Turner) formation and and cases that influence) jury right free of external and the (Remmer). involved an outside influence He (i.e., against confront witnesses him seems to believe that each of these cases in presented prejudicial not with extraneous nothing volved an outside influence and information). more. As our discussion in the text event, any the dissent claims that reveals, however, Parker and Turner each in failing to discuss the outside influence ele- exposure volved the to extraneous Turner, ments of Parker and we “obscure[] prejudicial information. In Parker the infor principle emerges the clear from [those mation was that the defendant was "wicked” assertion, simple cases].” Short of that how- "guilty,” 385 U.S. at ever, the fails dissent to demonstrate that the knowledge and in Turner the information was outside-influence elements of Parker and Tur- deputy credibility gained about the sheriffs' analysis any way. ner would alter our in As they shepherding jury. while were agree, both we and the dissent Parker and 472-73, U.S. at 85 S.Ct. 546. The dissent's respective holdings Turner contain that the moreover, argument, baffling given that our bailiff's communications with were an dissenting colleague acknowledges that influence, deputy outside as was the sheriffs’ Parker, [Supreme] "the [the] Court referenced jurors. contact with We fail to see how these right to confrontation.” Such a reference holdings materially add to Remmer’s formula- right would have been useless had that not exception: tion of the outside-influence implicated been case. prohibits "private Sixth Amendment commu- While we conclude that Parker and Turner nication, contact, tampering ... with a prejudicial each involved extraneous informa- juror.” 347 U.S. at 74 S.Ct. 450. Be- tion, conclude, we do not as the dissent seems encompasses cause Remmer's rule the out- believe, that Parker and Turner each in- side-influence rule that Parker and Turner prejudicial volved for, extraneous informa- analyze impliedly stand Remmer is merely recog- tion. Our discussion in the text analyze Any Parker and Turner. other conclu- nizes that Parker and Turner are illustrative of incomplete sion derives from an understand- prejudicial excep- the extraneous information charge of Remmer. The dissent's we exclusion, Parker, Turner, tion to the common-law rule of but meaning obscure the is, therefore, we nowhere conclude that Parker and Turner nothing Remmer itself more than do not also involve outside influences. More- smoke and mirrors. other, like in Parker and may inappropri- the bailiffs statements report each deputy sheriffs’ association with the to the court juror behavior ate before Turner, it have been reasonable for would they render verdict. the MAR court to conclude that the Bible (internal 127, 107 citations S.Ct. 2739 Id. bearing had no relevant fact emphasis original). omitted and sentencing, and therefore tanta thus establishes that Tanner against mount to “evidence” that was used guarantees do not re Amendment’s Sixth sentencing. him at See Black’s Law Dic juror allega of judicial consideration quire (8th ed.2004) tionary (defining “evi internal to the regarding influences tions “something ... tends to dence” as clearly estab process. Under deliberation of an al prove disprove or the existence law, an influ Supreme Court case lished fact”). end, leged In the the conclud (1) if an internal one it is is not ence aggravating ed that the balance of the information; i.e., in prejudicial extraneous mitigating impos circumstances warranted into evi that was not admitted formation the facts at ing penalty. the death Unlike a fact at nevertheless bears on dence but Turner, issue in Parker and no Biblical Parker, case,15 in see 385 U.S. at issue the the ones passage including we assume — 468; Turner, at 379 U.S. any evidentiary were read —had relevance influence or is an outside jury’s of the existence determination jury, such as upon partiality aggravating mitigating of these circ communication, contact, or tam “private umstances.16 Remmer, juror,” ... with a pering Second, it would have been reasonable has 74 S.Ct. 450. Robinson for court to conclude that the MAR unearthed, cited, has no and our research analogous private not to a commu- Bible is addressing whether Supreme Court case nication, contact, ju- tampering with a reading fall into either allegations of Bible ror, against and that the common-law rule categories. these juror testimony applied. allowing See Although possibly Remmer, our answer could 347 U.S. at S.Ct. 450. review, occurrences, impose on de novo we are be different these which Unlike juror ju- the MAR court did not un from the pressure upon apart satisfied himself, deny in reasonably apply principles reading passages these ror of Bible First, to examine his or her Bible-reading Robinson’s claim. invites the listener way, In un- own. from within. this contrary suggestion conscience Robinson’s Moreover, category although the dissent references suggests 15. The dissent Parker, that did one statement the bailiff prejudicial not extraneous information need issue, ignores not bear on a fact at to violate "bear on a fact issue in case" the defendant bailiff’s second statement —that Although Clause. we do the Confrontation guilty plainly did bear on a fact at any preci- —that not have occasion to define issue. “prejudicial" what the word means sion context, this it must mean at least that recently 16. We that the Ninth Circuit note a fact at in the bears on issue information conclusion that the Bible is reached similar view, any ingre- Under other the list of case. "extrinsic, jury. material" to a factual packs provided for dients on the coffee Brown, F.3d 1208-09 See Fields v. jurors Fields, would violate Confrontation Clause (9th Cir.2005). jury also had In the evidence because it is "extraneous” to "eye eye” passage, for an considered an presented in the case and because it is "infor- among Id. The Ninth Circuit conclud- others. not, interpretation [were] mation.” Such a boundless "Bible verses ... ed that these fact, at 1209. facts at all.” Id. the Confrontation Clause cannot be correct. post-verdict an “external” influence. fluences such that a the Bible is not examina- addition, reading unnecessary. tion into Bible reading analogous In the Bible is juror quotes to the situation where sure, To be line between “exter- assuredly memory, Bible from which nal” influence and an “internal” influence in improper would not be considered one, may is a fine and one that even blur Tanner, fluence. upon inspection. Cf. close In a formalistic (in holding that Fed.R.Evid. sense, ju- the Bible itself is “external” to 606(b) does not violate the Sixth Amend rors, communication, private as is a con- ment, noting that the Rule does not tact, tampering insofar as it is not a challenge “open[] up verdicts physically document within the during happened basis of what But themselves. then so too were the deliberations, example, where internal drugs allegedly ingested and alcohol alleges refused to Tanner “external” in this sense of the judge’s the trial instructions or that event, follow analyses word. formalistic jurors part not take in some of the did conflict with Tanner’s admonition that (quoting S.Rep. deliberations” No 93- whether an influence is external or inter- (1974))); by rigid concepts, nal is not determined p. 13-14 J.E.B. v. Alabama T.B., by analyzing but the “nature” of the influ- rel. 511 ex U.S. ence. (O’Connor, J., 483 U.S. at 107 S.Ct. 128 L.Ed.2d 89 con- difficulty in (“Jurors locating the line between curring) expected are not only Remmer Tanner confirms that jury come into the box and leave behind rejection the MAR court’s of Robinson’s experience taught all that their human has claim appli- Bible was not an unreasonable (internal quotation them.” marks omit- clearly cation of established law. See ted)). physical not that We do believe the Esparza, Mitchell v. S.Ct. presence and reading of the Bible (2003) (“A 7, 11, 157 L.Ed.2d 263 federal jury required room the MAR court to ar- may not overrule a state court for rive at a different conclusion under simply holding a view different from its Supreme established case law. Court own, precedent when the from [the Su- Moreover, alleged like the misconduct in is, best, preme] at ambiguous.”). Court Tanner, we believe that the MAR court reasonably could have concluded that the jurors The dissent that gen- believes can safeguards trial process partic- of the erally impeach by testifying their verdict —in ular, jurors’ religious the facts that views about influence that had the “serious dire, they can be examined voir were potential swaying jury towards a case, in this and that the defendant can death,” added), sentence of (emphasis request jury charge explaining to the the single exception jurors that cannot tes- jurors law, duty their to follow the as was tify physical to their impair- own mental given provide this an adequate only ments because those influences “im- case— protection right of a defendant’s pair juror’s to be ... ability [ ] to function jury improper sentenced free of in- effectively.”17 According to at least a een- definition, dissenting colleague 17. Our given sees the need to of the Court posit his own of an definition internal influ- Tanner itself. 483 U.S. at argues (noting by seeking ence because he that ours—influences to introduce evidence process jurors internal to the deliberation were intoxicat- other —is ed, "vague support sought inquiry and circular” and "finds no defendant "into observe, processes jury”). Any vague- in Tanner." The careful reader will internal of the however, rephras- circularity that our definition but a ness or that exists in the definition method, improper quotient in which the jurisprudence, tury Supreme Court damages by adding were determined each it backwards. As we have dissent has juror’s damage individual estimate and di- discussed, “firmly general established” viding by jurors. the total number juror testimony may not be is that rule 265-66, Despite U.S. at 35 S.Ct. 783. Tanner, impeach verdict. used to defendant, prejudice obvious 107 S.Ct. 2739. The 483 U.S. at Supreme Court did not allow the rule is for external influ- exception to this impeach its own Id. verdict. Parker, ence, identified in Tur- as we have Hyde, alleged S.Ct. 783. the defendant ner, exception But lest this and Remmer. guilt did decide his rule, swallowing the the Tan- viewed as be bargain innocence instead had made a but general that the rule ner Court reiterated among themselves to convict him in ex- that do not fit within applies to situations change acquitting for his defendant. fellow influence as exception for external 347, 381-82, 32 S.Ct. 793. Tanner, 483 by those cases. identified assuming Hyde alleged Even the facts (“In 117, 107 S.Ct. 2739 situations U.S. at true, agreed were exception fall into this that did not inquiry there should be no into them be- influence, however, the Court ad- external they cause “matters which essen^ involved against ad- hered to the rule common-law tially inhere the verdict itself and nec- mitting juror testimony impeach ver- essarily depend upon testimony dict.”). jurors, and can receive no corroboration.” as The dissent characterizes Tanner In these U.S. 32 S.Ct. 793. ... only “coneern[ing] phenomenon a [of] cases, clearly two actions were juror’s or impair influences that a mental improper; yet the Court did not allow-— n the case. physical capacity.” Such is not wheth- require inquiry much less into —an certainly focused on men- Tanner is While prejudiced. er the defendant had been impairment, its focus is physical tal and that an “ex- purported The dissent’s rule only because those narrowly circumscribed substantially ternal influence” is one presented the facts Court. were jurors against the defendant sways the Tanner, however, is not legal rule surely collapses in view of these cases: characterizing Tanner as By so limited. against can more a de- nothing be biased or only physical impair- related mental a in of its fendant than dereliction ments, the rule with the dissent conflates or innocence. duty guilt to decide his application. the rule’s Furthermore, not does the dissent’s McDonald, The facts of 238 U.S. Supreme prec- in rule have no basis States, 783, and v. United Hyde edent, warning ignores it also Tanner’s 793, 56 L.Ed. 1114 jury proceedings” is “integrity that the (1912) approv that Tanner by inquiries cites “into the internal jeopardized — cases general ingly stating jury.” rule —illus processes of the McDonald, it was defini- point. trate this 2739. Under the dissent’s influence,” jury neglected duty to the Sixth alleged that the its tion of “external simply Amendment violation does not arise damages and instead used an determine "clearly Supreme AEDPA's by Court in Tanner. provided the Court in Tanner demonstrates however, requires, that the line between external internal established” standard anything clearly is but established. by Supreme influences clearly the rule be established sure, advan- To be the dissent’s rule has the Court, court. not this tage clarity adopted over the one more, turn the Bible into an external presence Bible’s out virtue alone; according to the dissent’s jury room influence. formulation, the violation arises be- own Finally, in a statement that was obvious- swayed by jury may have been cause the ly designed passions to excite the to a to condemn a defen- “a divine command intellect, greater degree than the the dis- view, death,”. dant to On dissent’s analysis that our “should be argues sent words, must arise from problem other to those who consider the Bible offensive jurors’ obeying the divine hearing sacred” because we conclude “that a divine Following logic, this the dis- commands. command to condemn a defendant to death hearing a even sent would allow Robinson juror” potential carries less to influence juror merely if the had recited mem- communication, private than con- would “eye eye” passage during ory the for an tact, dissent, Surely the tampering. reci- this memorized deliberations because single does not cite a sentence from which tation of divine commands “carries the ser- opinion support our of this outlandish swaying jury towards potential ious claim, analysis that our is recognize must discussed, As a sentence of death.”18 not on a that the Bible has no based belief however, inquiry prohib- is such juror, ability sway but on a belief that provided The fact that the bailiff ited. precisely occupies because the Bible juror does not alter our con- Bible to the unique place in the moral lives of those not an external influ- clusion that was it, teachings its cannot who believe allege ence. Robinson does blithely lumped together private with a be

bailiff instructed the to consult the communication, contact, tampering Bible, matter, or, for that he did guidance without clear from the anything simply provide other than respect Court. With all our juror’s upon request. Bible On these argue that our dissenting colleague, to facts, reasonably the MAR court could analysis says simply anything more mis- have concluded that the bailiffs act of leading. nothing than providing a Bible was more an innocuous intervention into the above, For the reasons discussed Robin- Moore, deliberations. Howard v. 131 Cf. son “has failed to show that the MAR (4th Cir.1997) 399, 422 (concluding F.3d court’s decision was ... an unreasonable giving jurors scrap paper consisting application established Su- [] unused form letters thank prosecutor’s preme the deci- precedent, because jurors for their service ing former on which he relies ... are each sions nothing more than an “innocuous interven Polk, distinguishable.” v. 407 Conner F.3d (internal quotation marks omit

tion[ ]” (4th Cir.2005). Therefore, 208 Robin- ted)). Indeed, expect it is reasonable to not relief on his son is entitled habeas something during that a who wants Amendment claim. Sixth aspirin, pen, it is deliberations —whether or a Bible—will ask the bailiff to obtain reasonably him. The MAR court could Robinson asks us to remand for an evi- have concluded that the bailiffs actions not, fulfilling juror’s request dentiary hearing did with- on his Sixth Amendment omitted). many quotation jurors including those who are nal marks We cannot 18. For — not followers of the Judeo-Christian faith'— expect jurors precepts to leave at the these "eye eye” passage is a "cultural for an courthouse door. Burch, (inter- precept.” See 273 F.3d at 591

367 Bowersox, (8th 311 argues that Robinson Smith v. F.3d 921 The State claim. (“[The Cir.2002) evidentiary hearing petitioner’s] may not receive failure to comply failed to with his MAR comply because with Missouri law reflects a lack of re- procedural law. North Carolina’s We unclear, however, diligence.”). It is óf an district court’s denial evi- view the comply Robinson failed to with state law dentiary hearing for abuse discretion. by submitting hearsay support affidavits in (4th True, 401 F.3d 581 v. See Walker sure, To his MAR. be the law students’ Cir.2005). brimming hearsay, are affidavits provides they North law Carolina may § petitioner A 2254 an evidentiary would be inadmissible at evidentiary hearing the dis receive “ MAR,court. hearing State v. Ad develop court if he ‘failed trict ” cock, 310 310 N.C. S.E.2d claim in state court’ factual of a basis (1984). But whether inadmissible evidence the existence of several unless he shows evidentiary hearing can be used at an is a factors not relevant here.19 See statutory from question different whether inadmissi- (4th Lee, v. 290 F.3d Fullwood can .2002) support ble evidence claim for enti- (quoting U.S.C.A. Cir 2254(e)(2)). evidentiary hearing. tlement to an develop “A failure to cited, found, a claim is not established State has not and we have not factual basis of diligence, is a lack of or some single squarely unless there North Carolina decision greater [petition fault attributable to the holding accompa- that the MAR must be - (Michael) counsel.” [petitioner’s] or the er] nied admissible evidence in order for Taylor, v. Williams petitioner to demonstrate entitlement 1479, 146 L.Ed.2d 435 Furthermore, evidentiary hearing. to an argues that North Carolina law re State the MAR court did not find that Robinson accompanied by a MAR be quires that comply with North law failed to Carolina that, by present admissible evidence and by failing to submit admissible evidence. only hearsay affidavits to the MAR Johnson, Dowthitt F.3d Cf. despite the fact he could have ob (5th Cir.2000) (denying federal evidentia- directly tained affidavits to a the state ry hearing petitioner because themselves, diligent in Robinson was not peti- had concluded that the habeas court claim in pursuing his Sixth Amendment properly develop failed to the evi- tioner the MAR court. claim). it is dentiary basis of his Because require not clear that North Carolina rules that a agree with the State

We accompanied by a MAR to be admissible comply fails to with state petitioner who did and because the MAR court evidence seeking evidentiary hearing in an can law evidentiary ruling, an we not make such in diligence pursuing to lack his be held (“Dili that Robinson’s failure to sub- cannot hold 120 S.Ct. 1479 claim. Id. demonstrates a mit admissible evidence require in the usual case that gence will court. minimum, diligence lack of before the MAR at a seek an evi prisoner, (“[I]t Bacon, not our 225 F.3d at 477 is in court in the man dentiary hearing state Cf. law.”); ... the correctness of the by also role to review prescribed ner state see (1) "convincing of innocence.” statutory establish a claim factors are: the claim 19. The (Michael) (a) Taylor, Williams v. 529 U.S. of constitutional law relies on a new rule (2000); 435 120 S.Ct. 146 L.Ed.2d to cases on re- made retroactive collateral 2254(e)(2) view, (b) (listing 28 U.S.C.A. stat- previously could not see also facts that factors). discovered, utory that the facts have been 368 mix already before the district of its state- the factual application MAR court’s

state ”). court”). therefore did The district court rules.... procedural law denying its discretion Robin- not abuse is not fact that Robinson evidentiary hearing. an son evidentiary receiving an hear barred from however, court, not does the district III. automatically entitled that he is mean Fullwood, In 290 F.3d at 681. one. See the district Accordingly, we affirm stead, may grant an evi a district court § 2254 denying court’s Robinson’s decision § 2254 case hearing in a dentiary evidentiary him an petition denying “allege[d] addi has petitioner where the hearing. true, that, entitle him if would tional facts AFFIRMED one of the “establish[ed] to relief’ and has Sain, in Townsend v. six factors set forth KING, dissenting part: Judge, Circuit 293, 312, 9 L.Ed.2d (1963).”20 Fullwood, F.3d at 681 290 appeal presents important This an Sixth omitted). (internal Rob marks quotation issue, I separately Amendment and write however, alleged petition, § 2254 inson’s being wrongly it is decided. because alleged be that had been the same facts an Amendment entitles accused Sixth Because we conclude fore the court. MAR a fair trial before right the sacrosanct of unreasonably not MAR court did thé impartial jury, “goes a mandate that clearly established federal law apply all that integrity the fundamental facts, alleged any not has those .Robinson concept embraced in the constitutional true, that, if entitle facts would “additional Louisiana, jury.” v. by trial Turner relief,” we therefore need him to 546, L.Ed.2d 424 Townsend any whether consider jury’s And when a deliberations factors have met. Cardwell been improper have been contaminated (4th Cir.1998) Greene, F.3d if external influence—even that influence evidentiary hearing where the (denying an England’s first relates to the Bible to forecast evidence petitioner “failed judi- in our King -public Stuart confidence — already contained the rec beyond that system cial is undermined and the ord, his claim explain how otherwise verdict must not be enforced. evidentiary hear by an be advanced

would majority By opinion today, panel its (internal omitted)), marks ing” quotation erroneously is not concludes Robinson grounds by Bell v. overruled on other Jar (4th evidentiary hearing even entitled to an vis, Cir.2000); Bennett v. F.3d 149 (4th issue, because the improper influence Cir. Angelone, 92 F.3d 1996) ruling court’s thereon was not an state petition (holding, pre-AEDPA, estab- evidentiary hearing application failed unreasonable er’s claim for an determined nothing ‘additional’ to lished federal law as because he “add[ed] evidence; (5) allegation newly discovered as follows: 20. The six Townsend factors are adequately facts were not de- the material (1) dispute were of the factual the merits (6) hearing; veloped at the state-court (2) hearing; not resolved in the state appears reason it that the state trier fairly sup- state factual is not determination applicant whole; the habeas a (3) of fact did not afford ported by the record as a hearing. full and fair fact employed by fact-finding procedure Fullwood, (internal quo- 7 290 F.3d at 681 n. adequate a full state was not to afford omitted). hearing; a substantial tation marks and fair there is

369 Sain, him to relief.” Townsend v. 372 See 28 U.S.C. Court. Supreme 2254(d)(1). 312, majority 293, 745, reaches its § 83 9 L.Ed.2d 770 U.S. S.Ct. however, conclusion, through Next, its own mis because the state court did Supreme relevant Court application regarding improper not find facts in obscures the unmistak precedents, which issue, fluence has plainly Robinson satis that divides those decisions. ably clear line fied the Townsend factor that “the materi majori distinguished The decisions adequately developed al facts were not Gladden, 363, 385 U.S. ty 313, hearing.” the state-court Id. at — Parker 468, (1966), 17 L.Ed.2d 420 Turner v. S.Ct. Finally, 745. S.Ct. the district court com Louisiana, 379 U.S. ruling mitted an error of that law (1965), and Remmer v. United L.Ed.2d law students’ affidavits to were insufficient States, 98 L.Ed. evidentiary hearing, warrant an and it-thus (1954) single phenomenon: a — involved discretion in respect. abused its juror a upon an influence external grant evidentiary I would an Robinson him sway against to potential carries the issue, hearing on improper influence hand, other the defendant. On the I separately and write to dissent on that majority primarily on which the decision aspect appeal.1 of this States, 483 relies — Tanner v. United (1987)— 107, 107 L.Ed.2d I. relates to internal influence juror’s ability allegations Robinson’s factual concern- impairs physical a mental (the provided jurors function. the Bible to the properly claim”) “Bible are contained in the law the court bailiff The facts here —that affidavits, presented students’ which were deliberating juror, provided a Bible to a part court and a to the state made then read aloud to his fellow deliber- who Robinson’s corpus petition. Ac- habeas concerning the Bib- ating jurors passage a must cording the affidavits —which we eye eye”— of “an for an lical mandate accept juror requested as true —a a Bible influence, i.e., an external plainly concern during delibera- from the bailiff potential carries the one which serious should be ac- tions on whether Robinson swaying towards sentence penalty. Upon receiving corded death contrary (deeming A such death. decision request, provided the bailiff this unusual only) conduct to be an internal influence juror, ap- without either the Bible demeans the Bible and those who believe of the court. The proval or notification it, ap- “an and constitutes unreasonable to read aloud to oth- proceeded then established” plication of[ ] passage concerning the Biblical er 2254(d)(1). precedent. 28 U.S.C. eye eye,” of “an for an mandate allegations satisfy thus Robinson’s effort to convince the to recommend 2254(d)(1), §of and he is requirements Ultimately, sentence. rec- death evidentiary hearing prove entitled to an be sentenced ommended Robinson First, an influence that them. external death. sway juror against potential has the January the state court On presump- must be deemed the defendant ap- motion for which ruled on Robinson’s has thus “al- tively prejudicial. Robinson court”) (the which, con- propriate if entitle relief “MAR lege[d] proved, facts would .A, underlying appeal, Part II panel majority's this and in I concur in I of the Part disposition claim. opinion, general of Robinson's Enmund which sets forth the facts 370 determining or influence foregoing allegations were effect that the eluded ” Lee, verdict,’ evidentiary an Fullwood v. 290 F.3d to warrant

insufficient Cir.2002) (4th because, 663, assuming (quoting even their 679 Brecht v. hearing Abrakamson, truth, of the and use Bible 507 113 S.Ct. provision (1993)). “extraneous, Next, prejudicial 1710, did not constitute 123 L.Ed.2d 353 Rob- jury. After the information” before six Town- inson must establish one Townsend, denied Court of North Carolina Supreme 372 U.S. at send factors. See discretionary review of the MAR court’s 313, 745.2 Even if Robinson satis- 83 S.Ct. petition §a 2254 ruling, Robinson filed however, requirements, may we fies these of North as- Eastern District Carolina denial of an evi- vacate the district court’s alia, the Bible claim. As rel- serting, inter ruling if consti- dentiary hearing its here, court denied Rob- the district evant tuted an abuse of discretion. See Conner evidentiary hearing request for an (4th Cir.2005). inson’s Polk, 198, 407 F.3d claim, deeming the law stu- on the Bible insufficient to warrant dents’ affidavits A. granted hearing. such a We thereafter foregoing, we must first Pursuant appealability a certificate of Robinson ruling whether the MAR court’s assess claim. the Bible application of[ ] “involved an unreasonable question today before us is whether law, clearly Federal as deter- established evidentiary is entitled to an Robinson by Supreme mined Court of the United panel the Bible claim. As the hearing on 2254(d)(1). § ex- States.” 28 U.S.C. As observes, majority correctly because Rob below, ex- plained the distinction between diligent pursuing inson was the Bible has ternal and internal influences 2254(e)(2) court, § not claim in state does Supreme been delineated Instead, govern analysis. our Robinson Court, and a decision that Robinson’s alle- satisfy requirements forth in must set impli- claim gations supporting the Bible Sain, 293, Townsend v. 372 U.S. influence—rather than an cate internal 745, Town 9 L.Ed.2d Under ap- external influence—is unreasonable send, “allege[] Robinson must first facts plication of that law.

which, him to proved, if would entitle re panel majority man makes two funda lief.” Id. at 83 S.Ct. 745. This application to demonstrate mental mistakes in its of the requires date Robinson precedents. ruling contrary Supreme that the MAR court’s “was relevant Court to, First, the clear application principle or involved an unreasonable obscures Gladden, of, law, emerges from Parker v. 385 U.S. clearly established Federal as de (1966), termined L.Ed.2d Louisiana, States,” 2254(d)(1), Turner v. 379 U.S. United 28 U.S.C. (1965), and Rem and that the error in the MAR court’s S.Ct. 13 L.Ed.2d “ States, injurious mer v. ruling had a ‘substantial and United evidence; (5) allegation newly discovered The six Townsend factors are: (1) adequately de- the material facts were dispute of the factual were merits (6) (2) hearing; veloped hearing; at the state-court not resolved in the state fairly sup- state factual determination is not appears that the state trier reason it whole; (3) ported by the record applicant of fact did not afford habeas fact-finding procedure employed by the hearing. full and fair fact adequate state court was not to afford full Townsend, 372 U.S. at 83 S.Ct. 745. hearing; fair is a substantial there (1954), “clearly artificial- Federal That established law.” . L.Ed. S.Ct. catego- course, into two those decisions ly splitting phrase, holdings, “refers to the majority in- panel the Specifically, ries. dicta, opposed Supreme] as to the of [the involving Turner as Parker and terprets Court’s decisions as of the time of the information prejudicial [that] “extraneous ” relevant state-court decision. See issue,” which had on a fact at ... bears Taylor, Williams in contraven- been introduced 1495, 146 L.Ed.2d 389 As S.Ct. confrontation tion of the defendant’s below, major explained although panel the con- construes Remmer as rights. It then Parker, Turner, ity correctly identifies the upon outside influence cerning “an Remmer, prec and Tanner as the relevant the jury” the that violated partiality of edents, recognize apply it fails to the jury. Id. right impartial to an defendant’s in holdings Court’s clear those decisions. below, majority’s distinc- explained As decision, Supreme In its Parker decisions, by those unsupported tion is Remmer) Amend- (not Court held Parker’s Sixth in- merely each which carried rights influence that ment had contravened when an external been volved juror against the sway potential assigned shepherd the “bailiff the se- defendant.3 questered jury” remarked “ presence, [peti- ‘Oh that wicked fellow Second, incorrectly defines majority tioner], ‘If guilty,”’ he is and“ there is at issue Tanner the internal influences States, 107, 107 S.Ct. 483 U.S. anything wrong finding petitioner v. United [in ” (1987), “influences L.Ed.2d 90 as it.’ guilty] Supreme Court will correct process.” The internal to the deliberations 363-64, 385 U.S. 87 S.Ct. 468. internal multiple examples of influences panel majority solely characterizes Parker Court, however, by the Tanner provided held that as decision which much more con- phenomenon concern a rights Parker’s confrontation were violated impair and distinct: influences crete because the bailiffs comments constituted capacity. juror’s physical mental or prejudicial information [that] “extraneous ob- errors —both of which Given these ... bears on a fact at issue.” This charac- in the holdings clear fuscate Court’s terization, however, unsupported by is Parker, Turner, Remmer, and Tanner de- Although Parker’s facts and rationale. surprise panel is no cisions—it bailiffs guilty that Parker was statement ultimately concludes that the line majority as “evi- could be construed extraneous jury influ- and internal between external issue,” his dence” that “bears on a fact one, may even ences “is a fine and one cor- remark that the Court would A inspection.” fair read- upon blur close finding guilty clearly him rect error however, decisions, presents ing of those Rather, the evidentiary had no relevance. unmistakably clear divide between ex- simply an effort on bailiffs comment was internal influences. And when ternal and find Parker part sway his properly applied, are those decisions conclusion is also guilty. majority’s to an unquestionably claim relates Bible Al- analysis. belied the Parker Court’s external influence. improper Parker’s though the Court referenced confrontation, 1. it did so after right to jury. referring right impartial to his to an analysis in our under step The first 2254(d)(1) Parker, identify the relevant See is to authorities, sure, ap- interprets and panel majority which 3. To be concedes that those involving analyze plies as extrane- analyze impliedly Parker and Turner "to Remmer is however, concerning point, ous information and Remmer and Turner." That Parker majority's analysis of an outside influence. inconsistent with the Furthermore,- guardians during period the the entire the Court characterized of the trial.” Id. at 85 S.Ct. 546. as unconstitutional The statements bailiffs that, talk, Court’s concern was as a result tending jury by to reach the “private dependence influence,” deputies during on the not as extraneous evi- outside trial, (internal testimony against the the their defen- quotation marks omit- dence. Id. ted). carry greater weight dant would with the Finally, importantly, and most the jury than it otherwise would. The rela- has Supreme Court itself characterized tionship an external influ- thus constituted involving a ease influ- Parker as externar sway jurors ence with to the potential the Tanner, 117, 107 ences. 483 U.S. at See defendant, against irrespective any the 2739. S.Ct. might information that have been con- at least traces of Whereas Parker bore veyed jurors by deputies.4 the the prejudicial an information” “extraneous panel majority contrasts Parker and ease, decision, panel the Turner which the Remmer, Turner with which concerned case, characterizes as majority also such a juror, effort to and which bribe the ma- solely an external influence. In concerned jority correctly involving characterizes as Turner, the held that Court the defen- an external See 347 at influence. U.S. rights dant’s Amendment were con- Sixth 228-29, Yet, 74 S.Ct. 450. whether it was sequestered jury the travened where was impugning the bailiffs the remarks defen- “placed charge” deputy in two [the] Parker, in relationship dant the confi- also the “principal sheriffs who were wit- jurors dence the and the deputy between prosecution.” nesses for the at U.S. Turner, attempt sheriffs in the bribe In S.Ct. 546. their role as the Remmer, juror the in the same concern jury’s caretakers, deputies the the drove animated the Court’s decisions: that an jurors they go, where needed “ate with sway might jurors external influence them, them, with and did er- conversed against the defendant. rands Id. at for them.” 85 S.Ct. 546. problem Crucially, the constitutional was In improper contrast to the external in- any deputy information Parker, jury exemplified fluences in on a imparted jurors to the sheriffs had Turner, Remmer, internal and influ- —in- deed operated as- Court under the There, ences are illustrated in Tanner. sumption information-sharing that no such the Court held that the Sixth Amendment had at occurred. See id. 546. require evidentiary did not at hearing Rather, problem “relationship” was testify which that a could fellow deputy jury, between the sheriffs and the was influence of under the alcohol “one the-jurors’ illegal which could not but foster drugs during and Tanner’s trial. 126-27, in confidence those who were their official See 483 at S.Ct. 2739. panel only majority prejudice sug- No.t does the erroneous- issue a defendant. can This is, ly solely gestion put simply, entirely mischaracterize Parker and Turner as most without Parker, concerning .prejudicial legal example "extraneous basis. To take an from informa- " case,” tion that bears on a fact issue ’[i]f in statement the bailiff there is anything finding requirement wrong petitioner guilty] it cre'ates whole cloth the [in it,” Supreme plain- such extraneous “bear on a court will correct information and, ly fact prejudicial just plainly, at issue in the case.” There is no such no had requirement evidentiary Supreme Court to an relevance issue the case. .of by majority. signifi- decisions discussed The ma- 385 U.S. at 87 S.Ct. 468. Of cance, jority ground requirement majority’s newly require- seeks to new its minted precedent equating analysis appearing Court eviden- ment—first after its of Par- tiary prejudice, suggesting relevance to ker provides the sole basis on Turner — distinguishes extraneous information to a fact which it those relevant decisions. rationally neutrally deliberate on a expressly distin ruling, the Court so fate, juror’s general also a defendant’s but present influences guished the external ability perceive, compre- process, and Remmer from as Parker cases such him. Perhaps hend world around in Tanner. influence at issue the internal majority, by phrase “internal 107 S.Ct. 2739. See id. process,” deliberations means to indicate the distinction between an explained that only originate those influences that in the hand, influence, an on the one external so, If process. deliberations neither inter- influence, other, depends internal on the nal nor external influences would fall with- id., influence, of the and it on the “nature” in its definition. Whether the influence is observed that lower courts approvingly improper prosecu- an association with the affecting physi influences “the had treated bribe, witnesses, attempted tion’s sick- juror” Competence cal or mental [ ness, intoxication, it originates outside influences, id. at internal room. examples It several provided 2739. also only There is one definition reasonable in addition to the internal influences—in to draw from the Tanner distinc- Court’s including toxication at issue that case— tion between external and internal influ- sickness, disorders, insanity, psychological ences, its instructions the distinction and con sleep, hearing impairment, lack of influence, turns on the “nature” of the food, prepared all of sumption poorly examples provides the numerous it of in- im physical constitute a or mental which ternal If the “nature” of the influences: 118-19, 122, 107 pairment. See id. at S.Ct. impairs juror’s influence is that it 2739. physical ability or mental to function effec- tively, it is an internal influence. Internal panel majority draws from Tanner thus in stark contrast to influences stand following definition of internal influ- come counterparts, their external which ences: those “internal the deliberations carry potential from without and majority Because the fails to process.” juror against bias the the defendant. elaborate, guess we are left ex Importantly, this distinction between meaning- vague of this and circular defini- ternal and internal influences was however, means, tion. Whatever carefully by Supreme Court drawn majority’s support definition finds no ruling. court’s 1999 well before the MAR encompass and fails td the numer- Tanner “clearly estab It therefore constitutes provid- of internal influences examples ous meaning of lished Federal law” within the in that If ed the Court decision. 2254(d)(1). Williams, § 529 U.S. at See to the influences “internal deliberations 412, 120 S.Ct. 1495. panel majority means those process” only process, the deliberations affect external influences its definition describes a decision We must next assess whether The exter- better than internal influences. alleged by Robinson consti- that the facts recognized by the Court— nal influences rather than an external tute internal bribery attempted improper such as application” influence is an “unreasonable prosecution’s wit- association with Parker, clearly established law impact from without but nesses—come Turner, Remmer, 28 U.S.C. and Tanner. juror’s perception of the defen- 2254(d)(1). A decision is an “unreason- dant, directly on an influence that focuses Su- application” able established final decision a must make. precedent if the “state court preme Court contrast, influences —such as in- internal prin- governing legal correct identifies the toxication,- sleep, psychological lack of un- decisions but ciple from Court’s th[e] to the reasonably only juror’s ability applies not principle disorders —affect Smith, reading from the Bible is Tanner —that Wiggins v. facts.” unlike” an internal influence because “not 156 L.Ed.2d 471 his or it “invites the listener examine recognized, state As we have within,” a conclu- her own conscience un- may be set aside court determination “ in Tanner and support sion that finds no if ‘was unrea- der this standard no resemblance to of the exam- bears govern to extend the refusing sonable in provided of internal influences there. ples a context in which the ing legal principle to ” majority proceed by anal- That the fails have controlled.’ Booth- principle should examples provided Tanner ogy (4th Nuth, 571, 575 288 F.3d Cir. El v. certainly surprising, for it would be 2002) (quoting Angelone, Ramdass v. shocking compare for a court to Bible 147 L.Ed.2d intoxication, insanity, exhaus- reading to The man (plurality opinion)). tion, disorder, poi- or food psychological 2254(d)(1), however, is not date of satis 118-19, 122, at soning. See id. independent determination that by fied our (listing examples these and others as application the court’s was errone state influences). Yet, labeling in the of internal ous; application also find such to we must reading of the as an provision and Bible Williams, 529 U.S. be unreasonable. See influence, majority likened internal the has Nevertheless, at 120 S.Ct. 1495. reading impairments. a to Not Bible such where, here, principles the are as relevant false, a empirically is such conclusion well-defined, range of reasonableness the it should be offensive to those who consid- Alvarado, Yarborough v. is narrower. See er the Bible to be sacred. 652, 664, 541 U.S. regard allega- In to whether Robinson’s (2004) (“[E]valuating L.Ed.2d 938 whether influence, i.e., tions constitute external re- application a rule was unreasonable an influence that comes without quires considering specificity. the rule’s sway juror potential carries the to a rule, the more lee- general The more the defendant, against panel majority the the way reaching have in outcomes in courts provision the bailiffs suggests neither determinations.”). by case case Given the reading nor of the in of the Bible Bible an exter- clarity of the distinction between have influenced the room could jury, and an internal influence on a a nal Indeed, jurors although against Robinson. allegations decision that Robinson’s consti- majority compare is hesitant Bible poisoning, than an it reading tute an internal influence-—rather to intoxication food by comparing the Bible to is not troubled easily external satisfies influence— doing, In “aspirin pen.” so [or] “clearly unreasonable” standard. majority fact that the Bible is ignores the panel majority concludes that morality an authoritative code —and reading of the Bible is “not provision segment even law—to a sizable of our in unlike” the internal influences described Turner, in it be population. As would It thus concludes that a decision Tanner. “blinking reality” recognize pro- not to allegations that Robinson’s constitute from the quotations found influence that unreason- internal influence would be carry Bible could in the room. 379 majority In ruling, able. so fails to Moreover, the U.S. at 85 S.Ct. 546. reference the Tanner Court’s admonition con- specific passage read aloud—those affecting that internal influences are those eye for an cerning the mandate of “an “physical Jcompetence or mental of a [ severity eye” directly pun- on the —bear juror.” 483 U.S. imposed for a criminal act ishment be to the numer- analogize And it declines require penalty the death expressly provid- examples ous of internal influences majority punishment for murder. .The ed the Court in Tanner. See id. alarmingly—that therefore concludes— Instead, 118-19, 107 S.Ct. 2739. a defendant divine command to condemn potential less to influence majority concludes—without citation to to death carries presumptively prejudicial.” comments Par- deemed juror than the bailiffs jurors’ relationship with the or the ker U.S. at 74 S.Ct. 450. have had We in Turner. I can neither deputy sheriffs apply occasion to Remmer and elaborate that conclusion. accept make nor on the presump circumstances which its prejudice tion of egregious arises. Stockton case is made all the more This provided Virginia, fact that the Bible was presumption we held that the juror by the trial court’s bailiff. prejudice proprietor arose where of a majority characterizes the bailiffs panel restaurant at which the ate lunch intervention,” but, actions as an “innocuous during “they deliberations told Parker; explained “[t]his as the Court ought fry son of bitch.” 852 F.2d that the official charac- overlooks the fact (4th Cir.1988); see also Full an officer of the court ter of the bailiff—as wood, (concluding 290 F.3d at 681-82 beyond question car- as well as the state — presumption prejudice arose where de- weight jury.” with a great ries juror’s alleged fendant husband had Furthermore, because 87 S.Ct. 468. attempted to convince her to vote for capacity as an officer of the of the bailiffs . penalty). explained death Stockton We court, likely impute that a would that, in presumption, order to invoke the itself, leaving an his actions to the court defendant must “establish both that an approved that the court impression unauthorized contact was made and that of the Bible. jury’s use reasonably was of such a as to character juror’s of together, reading Taken question integrity draw into of the eye” and the eye passage, the “an for F.2d at In ruling, verdict.” 852 743. so reading this was sanc- appearance explicitly distinguished we such outside court, plainly tioned the trial constitute in contacts from Tanner-like situations potential with the an external influence “juror or volving impairment predisposi against sway Robinson. tion.” at 744. Id. contrary MAR court’s decision to the application” an “unreasonable of therefore allegations plainly satisfy Robinson’s Supreme precedent. 28 U.S.C. Court First, in two-step rule set forth Stockton. 2254(d)(1). furnishing the bailiffs of the Bible to the juror with the was an unauthorized contact B. Second, jury. “reasonably such contact which, “allege[] In facts if order question integrity” into draw[s] relief,” proved, entitle him to would jury’s recommendation Robinson be Townsend, 312-13, required by U.S. Stockton, 852 F.2d at sentenced death. demon Robinson must also above, 743. As discussed the Bible is one in strate that the error the MAR court’s to our of the most influential texts known “ injurious ruling had a ‘substantial and many, represents, culture and God’s in determining effect or influence ” Furthermore, as in explicit commands. Fullwood, jury’s verdict.’ 290 F.3d at 679 Stockton, passage read aloud Brecht, (quoting jury room “bore on the exact issue— 1710). allegations Because Robinson’s impose penalty whether to the death of give presumption rise to a rebuttable —that time,” deliberating at that were prejudice, they satisfy require also this potential and thus carried a serious ment. 746; McNair v. prejudice. Id. at see also Remmer, an- (11th 1291, 1307-08 Campbell, 416 F.3d that, case, any nounced a criminal “[i]n Cir.2005) of (concluding that introduction communication, contact, private tamper- gives pre- room rise to Bible into directly indirectly, ing, with a is, reasons, presumption sumption prejudice). ... of during a trial for obvious 376-404 course, to be “is not one prejudice, Stockton, F.2d at

casually invoked.” case, how- of this circumstances

745. The

ever, invocation. justify than its more

C. to demonstrate entitle-

Finally, in order evidentiary hearing, Robinson

ment to an fac- the Townsend one of

must establish

tors, find that the district and we must him denying its discretion court abused LABER, Plaintiff-Appellant, Stan each of hearing. Robinson satisfies such a First, concluding requirements.

these HARVEY, Secretary did not entitle J. allegations Francis that Robinson’s Army, Defendant-Appellee. relief, Rob- him the MAR denied claim hearing on the Bible inson a without No. 04-2132. satisfies any facts. Thus Robinson finding factor, Appeals, United States Court the fifth Townsend at least Fourth adequately Circuit. facts were “the material hearing.” 372 developed at the state-court 27, 2005. Argued Oct. Second, 745. U.S. at Decided Feb. committed an error of law district court evidentiary hearing denying Robinson the law students’ affida-

on the basis that to warrant eviden-

vits were insufficient allega- it is settled that

tiary hearing, for alone are sufficient to warrant

tions where, true, they entitle

hearing taken as to relief. See id. at petitioner True, 745; 399 F.3d Walker Cir.2005). (4th definition, By such an

error of law constitutes an abuse of discre- Ebersole, 411

tion. States v. See United Cir.2005). (4th

F.3d

II. foregoing, Robinson is

Pursuant evidentiary hearing to an on the

entitled claim, and I and re-

Bible would vacate may proceedings

mand for further such appropriate.

be respect, strenuously I dis-

With most

sent.

Case Details

Case Name: Marcus Reymond Robinson v. Marvin L. Polk, Warden, Central Prison, Raleigh, North Carolina

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 14, 2006

Citation: 438 F.3d 350

Docket Number: 05-1

Court Abbreviation: 4th Cir.