Michael Lee Fullwood v. R.C. Lee, Warden of Central Prison, Raleigh, North Carolina

female, Cribb, Thus, 1995. Hiott hired a Peggy I concur the judgment of Section registration supervisor position pri- II. Part E.10 hiring or to Bridge. Following Bridge’s promotion

second to the Information Ser- Department

vices Colleton

registration supervisor position was filled female,

by a female, Marsha Grimsley. A Pinckney, currently po-

Jennifer holds the Further, promoted

sition. had been Dennis according and transferred to her wishes Michael Lee FULLWOOD,

repeatedly during her employment with Petitioner-Appellant, Colleton. LEE, R.C. Prison,

II. Warden Central Raleigh, Carolina, North After reviewing all of the evidence in Respondent-Appellee. light Dennis, most favorable I am convinced that there was insufficient No. evi- 01-13. support dence to jury’s finding United States Appeals, Court of legitimate, Colleton’s non-discriminatory Fourth Circuit.

reason for Bridge promoting instead of Dennis was false. Without sufficient evi- Argued Jan. 2002. pretext, dence of no juror rational could May Decided 2002. have determined that Dennis met her bur- den of establishing the ultimate issue of

discrimination vel non.9 Title VII is a tool vindicate important congressional against

policy discriminatory employment

practices. It is not to be lightly invoked promotion

whenever decision is made process

means of a than preci- less total and determinacy, yet

sion it is precisely consequence

this I fear will follow majority’s

from the Moreover, approach. I

because do not believe Dennis estab-

lished the prerequisites of Title VII liabili-

ty, I similarly do not believe she is entitled

to recover emotional distress damages. that, 10. I note Because I believe Colleton was entitled to even Iif were to conclude that law, judgment as a matter of I Dennis met prerequisites do not address for Title VII liability, argument I would its alternative hold that the that it was district entitled to court did not Moreover, setting abuse its discretion in aside a new trial. insofar as I would not verdict in favor of Dennis for emo have prevail- found Dennis to have been the damages tional distress because Dennis failed ing party, I do not join majority’s in the put forth evidence sufficient of emotional attorney's affirmance of the fee award or back support jury’s distress to pursuant verdict pay award in her favor. to the standard City set in Price v. forth Charlotte, (4th Cir.1996). 93 F.3d 1241 Rose, Cen- Kenneth Justin

ARGUED: Inc., Dur- Penalty Litigation, ter for Death Carolina, ham, Petitioner-Appel- North Pell, Deputy Special Harris lant. Teresa General, Depart- North Carolina Attorney Carolina, Justice, Raleigh, North ment of BRIEF: ON Respondent-Appellee. for Cloninger, Lindsay, Lindsay, P. Stephen P.L.L.C., Arcuri, Hensley, & Searson Asheville, Carolina, for Petitioner- North Coоper, Attorney General Appellant. Roy Carolina, Depart- Carolina North of North Carolina, Justice, Raleigh, North ment of Respondent-Appellee. MICHAEL, WIDENER, Before TRAXLER, Judges. Circuit part, part, in claims, Affirmed reversed respect With to the other we con- part, by dismissed in and remanded clude that the state court’s refusal published opinion. Judge TRAXLER grant to, relief was contrary neither nor opinion, in majority Judge wrote the which of, application unreasonable clearly es- joined. Judge MICHAEL WIDENER tablished federal law as decided opinion concurring part wrote an Supreme Court. denyWe ap- dissenting part. plication for a certificate of appealability respect with to his other claims and dis-

OPINION miss them. Accordingly, we affirm in TRAXLER, Judge. Circuit part, part, reverse in part dismiss in remand. A North Carolina state court sentenced

Michael Lee Fullwood to die for the mur- I.

der of Deidre appeals Waters. Fullwood an order of the denying district court his Fullwood and Deidre Waters were ro- See mantically involved for three and one-half petition corpus. for a writ of habeas (West § Supp. 28 U.S.C.A. 1994 & years, and Fullwood was the father of 2001).1 Fullwood raises a number of Deidre’s child Michelle. In March claims, primary but his contention is that relationship between Fullwood and deprived he was of a fair trial because the strained, Deidre became and Fullwood jury subjected improper par- was third eventually began threatening to kill Dei- ty jury and the communications consid- dre. prejudicial ered factual information that On March Deidre went to the was not in respect evidence. With to his home of Michael and Camille Hawks Sixth Amendment claim based on the al- where employed day Deidre was as a care improper leged improper contact and worker. The Supreme North Carolina evidence, consideration of facts not in we Court summarized the events which oc- conclude that Fullwood made a “has sub- curred next and the evidence introduced shоwing stantial of the denial of a constitu- phase guilt of trial as follows: 2253(e)(2)- right.” tional 28 U.S.C.A. At 8:20 a.m. Ms. Mills moth- [Deidre’s (West Supp.2001). grant We his applica- dropped er] Deidre off at the Hawks’ tion for a certificate of appealability on residence. While Ms. Hawks was still at issues, those and we reverse the decision home, Deidre received calls from defen- of the district court only to the extent that dant’s mother and from defendant. Dei- the district court denied Fullwood’s re- dre told defendant’s mother that she had quest for an evidentiary hearing as to taken out the warrant because she was jurors whether one of the improperly tired of threatening defendant to cut her influenced her husband and whether out; head off and to cut her heart Ms. jury improperly learned that Fullwood Hawks left her home around 8:30 a.m. already been sentenced to death for this murder in previous capital sentenc- At 9:30 a.m. Ferrell arrived at Robin ing proceeding, deny so as to Hawks’ home leave her child at fo fair trial. We affirm the remainder day care center. She went to the disposition door, district court’s locked, of that claim. front’ found the door and 104-132, 1. The amendments 2254 effected apply No. 110 Stat. to this § 104 of the Antiterrorism and Effective case. (AEDPA), Penalty Death Act of 1996 Pub.L. treat- The were living paramedics room. there was no knocking. When began in They the window. found blood answer, ing to the front defendant. went she room, of the first saw blood on the outside sitting broken. She The was window walls, the children the and heard and on the house floor bathroom door in phoned Mr. Hawks in Ms. Ferrell and commode the bathroom. crying. mirror house; then re- she neighbor’s appeared a to have from bathroom door The home, the coaxed the Hawks’ dining turned to In room open. the forced been window, lifted them and to the jacket, children grey they found defendant’s her that Deidre children told The out. and glass, window pieces of the broken that a man on floor and sleeping was the covering. from window plastic the the her. the floor with sleeping on was telephone dining of the room The cord arrived, he and Ms. Hawks When Mr. and the jack, the pulled had been from They house. into the Ferrell went floor. There was lay on the receiver floor living room Deidre on the found glass the window jacket, the blood on the base of the against head with her receiver, phone the walls plastic, the and eyes pulse and her had couch. She no the floor. and Her glassy. and open, dilated were on the they In the kitchen found blood cut,” and her chest “severely neck was floor, counter, refrigerator. and the with blood.” “completely covered was defendant’s bloody A butcher knife with his lay legs her with across Defendant coun- print on it on the kitchen palm lay n lap. When Mr. Hawks near her head ter, knife with traces and steak Deidre, off defendant pulled defendant high chair. lay it under the blood on around. Mr. Hawks and moved moaned stairway on the There was also blood knife, was near defen- moved a which upstairs phone. and on dant, He and Ms. Ferrell foyer. William Gibson Lieutenant police. to wait for the went outside blood Department took Asheville Police personnel ar- At 10:00 a.m. medical in many areas the house. scrapings from first aid to attempted give rived and on the that the blood The tests revealed defendant, stom- who a wound his that of knife was consistent with butcher and arms. on his neck ach and wounds Deidre, the on the and blood defendant them. When fought with Defendant defendant’s, foyer knife in the said, stretcher, he him on they got enough not have steak knife did me anymore, “Don’t stab me don’t stab the blood it that source of blood on paramedic put who de- anymore.” The throughout blood could be traced. The expressed the in the fendant ambulance with that of house was consistent not in shock opinion that defendant was defendant or Deidre. either that time. at body dis- autopsy Deidre’s on Ted and Detеctive Sergeant Lambert wounds, twenty-four significant closed Police Roberson Asheville Walt Two were slash wounds. most of which at the scene Department arrived causing capable of of the wounds were noticed the Sergeant a.m. Lambert 10:10 on her deep slashing wound death: blood on floor broken window and artery, carotid which cut her neck bloody knife foyer. They found anterior chest penetrating wound on her lying Hawks had moved which Mr. Dr. right lung. into her went which on the liv- lying Deidre was foyer. pathologist, testified George Lacy, her cloth- floor blood on ing room with have survived from that Deidre could throughout the ing, underneath her forty-five get minutes after receiv- away room, fifteen to and ran into living fatal The ing the wounds. Chief Medi- where he caught her and inflicted the Hudson, Examiner, Page Dr. testi- cal fatal wounds. He then selected a that, opinion, fied in his she died within smaller knife from the kitchen in- and receiving a few minutes after these upon flicted wounds himself.

wounds. The defense conceded that defendant Edwards, emergency Dr. Frank had killed Deidre and asked for a ver- doctor, room testified that' defendant dict guilty of second degree murder.' when he was shock was admitted to argued Defense counsel that defendant Noto, hospital. Joseph Dr. the sur- turmoil, was an emotional defendant, geon who treated testified Deidre, stabbed in the stomach and parallel that defendant had a series of did not premeditate or deliberate re- superficial cuts on his wrists and neck. garding killing. Defense counsel He had a stab wound his abdomen. presented several character witnesses opined Dr. Noto that because the for defendant. A clinical correctional precise, straight wounds were and psychologist testified to defendant’s low neck, wrist and abdomen wounds were IQ opined and that defendant’s relation- n all agreed self-inflicted. Dr. Hudson ships with Deidre and Michelle were the wrist neck wounds were and “the foundation of his life” and that he that it self-inflicted and said was “more could not perception deal with his likely than not” that the abdominal leaving Deidre was him and Mi- taking self-inflicted, wound was although “it chelle with her. could have been inflicted someone Fullwood, State v. 323 N.C. else.” (N.C.1988) (“Fullwood S.E.2d 522-24 Matthews, detective, police Grover I”), vacated, testified that while defendant was in the emergency girl- room he said that his jury degree was instructed on first friend had stabbed him. The trial court pre-meditation murder on the basis of did not allow this statement into evi- deliberation, degree as well as second mur- dence. jury guilty der. The found Fullwood evidence, From the circumstantial degree first murder. developed theory State that defen- proceeded then Fullwood’s trial dant the dining broke room window and Deidre, sentencing phase, jury where the deter- came into the house. who was proven ag- that the State had trying phone help, to keep tried to mined gravating him circumstance that the murder out. Defendant went the kitchen heinous, especially atrocious and cruel. got the butcher knife. Deidre ran was 15A-2000(e)(9). in, In bathroom and locked hérself N.C. Gen.Stat. turn, open but defendant forced the door concluded that there were began stabbing managed present.2 her. mitigating She seven circumstances prepare

2. Thesewere as follows: al rehabilitation to himself for bet- (4) employment;' sought (1) ter defendant the murder was committed while defen- assistance of the Human Resources Devel- dant was under'the of a mental influence disturbance; (2) opment Program college of a technical emotional defendant's im- (5) maturity prepare employment; capacity at the himself for better- or limited mental offense; (3) employ- time of the commission of the defendant has tried to maintain abilities; (6) sought despite defendant the assistance of ment limited defendant vocation- prior to the date of the volving that violence” ultimately determined jury The murder; not suffi- not have a convic- wеre Fullwood did mitigating circumstances circum- aggravating involving violence to outweigh “any cient to tion for crime that Fullwood’s and recommended person” prior stance to the date of another be fixed at death. murder; sentence father abused alcohol Fullwood’s mother; Full- physically and abused his North Carolina Supreme The Court of any disciplinary wood “has not received and conviction sen affirmed Fullwood’s write-ups in nine and one- actions or at id. appeal. tence on direct See incarcerated”; years half since he has been Court, Supreme howev The United States “has been a model inmate sentence, Fullwood er, Full see vacated Fullwood’s 1022, 110 Prison”; Carolina, Fullwood “has consis- Central North 494 U.S. wood v. (1990), mature, man- tently responsible acted in a Supreme personnel”; dealing prison North Carolina when with remanded for the ner light Fullwood’s sentence to reconsider Fullwood “has shown determination Carolina, McKoy G.E.D., v. North in- despite borderline pursuing his 1227, 108 L.Ed.2d 369 “has functioning”; tellectual Fullwood remand, Supreme the North Carolina On spiritually in his reli- grown and matured that, McKoy, jury held under Court he been at Central gious faith since has during the improperly instructed had been Prison”; and Fullwood “has shown the required that it was phase sentencing adjust pris- capacity to continue to well to mitigating of a circum find the existence jury The also found on life.” J.A. 145-47. circum unanimously before such stance race-relat- the fact that Fullwood suffered any juror. by could be considered stance young age mitigat- at a to be of ed violence Fullwood, 233, 404 State v. 329 N.C. ing value. (‘Fullwood (N.C.1991) 842, 843 S.E.2d of miti- jury rejected The also a number ”). that the II The court determined sen by the de- gating circumstances submitted not harmless and re tencing error was no significant fense: that Fullwood “has sentencing pro capital for a new manded prior activity”; criminal history ceeding. at 845. See id. capacity appreciate “to resentencing, again At submit- Statе his criminality of his conduct or to conform ‍​‌‌​‌​‌‌‌​‌‌​‌‌‌‌‌‌​‌‌​‌​​​​​‌​‌​‌​​​​​​​​​‌​‌​‌‍heinous, atrocious, and “especially ted the requirements conduct to the of law was The jury. factor to the aggravating cruel” that Fullwood “had limited impaired”; unanimously ag- that this jury concluded offense”; capacity at the time of the mental present. gravating factor was IQ was within the “border- that Fullwood’s jury on original jury, As did the functioning”; of intellectual range line miti- resentencing determined that several “knives was committed with murder present, as well: gating circumstances were already were at the scene and not which committed the murder “while Fullwood Fullwood; by and that Fullwood brought” ... under the influence of mental or emo- expressed remorse and sorrow for “has disturbance”; the time of the tional “[a]t 145-47. what he has done.” J.A. murder ... suffered from alco- [Fullwood] abuse”; beyond found reasonable Fullwood did hol substance circumstances “any felony mitigating in- doubt not have a conviction for acquired residence and not expressed for what he at the Hawks' remorse and sorrow done; (7) there defendant. the offense was commit- taken I, weapon weapons 373 S.E.2d at 524. ted means of a outweigh aggravating circum “the state court arrives at a failed conclusion circum aggravating opposite and that that by Supreme] stance reached [the sufficiently sup stance was substantial a question Court on of law or ... the state imposition of a death sentence. port court decides a case differently than [the] recommendation, Following jury’s the Court has a set materially on of indistin imposed state court a sentence of death. guishable (Terry) facts.” Williams v. appealed Fullwood his sentence to the 362, 413, Taylor, 529 U.S. Court, Supreme

North Carolina which af A state court Fullwood, firmed. See State 343 N.C. decision rests on an applica “unreasonable (“Fullwood (N.C.1996) 725, 472 S.E.2d 883 clearly Supreme tion” of established Court ”). Supreme III The United States Court precedent when “the state court idеntifies - petition for a writ of denied Fullwood’s governing legal principle the correct from ] certiorari. Court’s but unreasonably [the decisions applies principle that to the facts of the Appro- Fullwood then filed a Motion for prisoner’s Applying case.” Id. this defer (“MAR”) in priate Relief Buncombe Coun- review, ential standard of we conclude that Court, Superior seeking post-conviction ty adjudication the state court’s of all Full- of denying relief. The court an order issued except wood’s claims one was neither con requested relief deter- to, trary application nor unreasonable evidentiary hearing that an was un- mined of, clearly established federal law as decid necessary. sought review of the by the Supreme ed Court. respect With by state trial court’s denial of his MAR jurors to Fullwood’s that one of claim petitioning Supreme the North Carolina subject pres was to outside influence and petition Court for a writ of certiorari. His sure, Fullwood, we remand- for the district court to was denied. See State (N.C.1998). evidentiary conduct an hearing on this nar N.C. 516 S.E.2d row issue. petitioned Fullwood next for relief in pursuant

district court section 2254. II. granted The district court the State’s mo- summary judgment on each tion for of deprived that he Fullwood contends was Fullwood’s claims and concluded that the at resentencing, guar fair trial his as by require raised Fullwood did not issues anteed the Due Clause of the Process hearing. Amendment, Fourteenth because the re- sentencing jury, seques which was not appeals, raising Fullwood now five tered, subject improper was contact grounds for relief. Because each of these parties with third and considered extrane adjudicated claims was on the merits parties did not court, ous information apply we a deferential stan state introduce at and the court did not adjudication “the trial dard review: whether provide Phillips, to them.. See Smith v. of the claim ... resulted in a decision that to, contrary or involved an unreason (1982) (“Due of, application clearly process able established L.Ed.2d 78 means a law, jury capable willing determined to decide the case Federal as Su it.”). preme solely Court of the States.” 28 evidence before Full- United on the 2254(d)(1). Supreme argues wood that we must vacate his sen U.S.C.A. or, minimum, explained that a afford him an Court has state court tence clearly evidentiary hearing juror on claims of “contrary decision is to” estab his precedent Supreme lished Court when misconduct. and other claim, penalty” and told Booth Fullwood relies death support

In of this constantly jurors that her husband “was affidavit of Laura solely upon post-trial during telling during the trial [Austin] Full- juror during as a Booth who served [Full- should convict deliberations she ob- resentencing. Defense counsel wood’s him and sentence to death.” J.A. wood] process tained affidavit opinion, by offered her 159. Booth also juror interviews.3 conducting post-trial testimony, affidavit was obvious “[i]t allegations contains Booth’s affidavit Juror upon pressure brought [Aus- ... that the essentially categories. that fall into two her husband caused her to vote by tin] pressure influence or is that of undue One he wanted her to.” J.A. exactly way nonjuror. other upon juror by argues Fullwood that Booth’s 159. Juror by the consideration involves improper this affidavit establishes by parties presented information not influ- person actually with a third contact trial, can be during the court which jury’s by causing deliberations enced the case-specific further into factual divided sentence, juror choose a death one information about general information and require us to vacate his death which would each in legal process. We consider Aternatively, Fullwood con- sentence. turn. presented he has evi- tends because juror “constantly” that a was sub- dence Party aBy A. Outside Third Influence jected spouse’s opinion to her she Booth, According sentencе, is, to Juror Juror for a death he at a should vote by Joyce “strongly minimum, Austin was influenced hear- evidentiary entitled to an ing rejecting on this issue.4 In Fullwood’s strongly pro- ... her husband was [who] Here, 2254(b)(3). attorneys represented § the state conceded in 3. The who Full- two resentencing during proceedings requirement wood district court that the exhaustion jurors met, noted, afterwards also but, and interviewed sum- had been as Fullwood respect submitted affidavits. With to this is- in district court in much marized this claim sue, however, nothing these affidavits added way did state court. There- the same as he new, merely repeating what was contained in fore, we must determine whether Fullwood's the Booth affidavit. changed way claim has substantive presented post- the claim he in state from emphasis 4. of Fullwood's The current claim proceedings. relief conviction slightly than was in seems to be different it requirement is satisfied "[T]he exhaustion Accordingly, compelled we state court. are 'fairly presented’ long a claim been so as has properly consider whether Fullwood exhaust- Corcoran, 220 to the state courts.” Baker v. 28 U.S.C.A. ed this claim. denied, 276, (4th Cir.2000), F.3d cert. 2254(b)(1)(A)(West ("An appli- Supp.2001) § 1194, 121 S.Ct. corpus cation for a writ of habeas ... shall Connor, (2001) applicant (quoting granted ... has Picard not be unless exhausted the remedies available in the courts 30 L.Ed.2d added)). so, (emphasis ...." In (1971)). of the State petitioner present To do must court, pri- Fullwood framed the issue state operative "both the facts to the state court marily juror as one of misconduct based on controlling legal principles.” Mat and the purportedly jurors' untruthful affirma- Evatt, (4th 105 F.3d Cir. thews they would be able tions voir dire that 1997) omitted). (internal quotation Al marks to follow the court’s instructions confine argu though did not articulate his evidence submitted their deliberations to the precisely the same ment in state court application in district trial. In court, we fashion as he did in his briefs to this he framed this court for relief under that the substance of his claim are satisfied wаy. much the same issue in fairly presented to the state courts. The requirement subject to The exhaustion contrary. argue to state does not waiver, "expressly" do so but the state must "through 28 U.S.C.A. counsel.” claim, application” MAR court three able determinations. See id. the state stated at 163. Because we have no clear indica conclusions: here, reasoning tion of the court’s we will impeach a 1. Affidavits to Juror’s independently review the record and the by are favored [Jury’s] deliberation not “contrary law to make our to” or “unrea the Court. application” sonable determinations. See juror’s knowledge] prior of a [A Stovall, Harris v. 943 n. 1 penalty resentencing hearing in a death (6th (“Where Cir.2000) a state court de mean that could does not in itself Juror cides a constitutional issue form order to a life sen- give fair consideration discussion, or without extended a habeas tence. court should then focus on the result of the Court, Affi- from the 3.... The Juror’s decision, applying state court’s the stan true, it to be cannot assuming davit and AEDPA), dard articulated” cert. find external influences that sufficient denied, 532 121 U.S. S.Ct. 149 have an effect on the outcome of the (2001). L.Ed.2d 356 grant- case to warrant the verdict this trial. ing of a new guaran The Sixth Amendment Presuming that Fullwood J.A. right tees a criminal defendant the to an the presented all of his evidence on issue essence, “In impartial jury. right the to submitted, through the affidavits he jury guarantees criminally trial ac evidentiary court concluded that an hear- panel by impartial, cused a fair trial a of ing unnecessary. was jurors. indifferent The failure to accord specifical hearing court did not an accused a fair violates even the The state ly identify legal principles guiding process.” its minimal standards of due Irvin Dowd, 722, 717, 1639, analysis precedents upon or cite the which v. U.S. (1961) (internal quotation it relied. are unable to ascertain the L.Ed.2d 751 We omitted). relatively Supreme state court’s rationale from the marks Court has summary disposition clearly private nature of its of this stated that communications juror party claim. When the state court decision be between an outside and a raise ing by a federal court Sixth Amendment concerns. See Parker reviewed habeas Gladden, 363, 364, 468, provide any fails to rationale for its deci 385 U.S. 87 S.Ct. (1966) curiam). sion, apply (per we still the deferential stan 17 L.Ed.2d 420 talk, by Congress tending dard of review mandated to to reach “[P]rivate by ultimately constitutionally determine whether the decision outside influence” is by suspect subject it “full “contrary reached the state court was because to, application judicial protection right or an of the defendant’s involved unreasonable of, law, confrontation, cross-examination, clearly established Federal as de of (internal Supreme quotation termined of counsel.” Id. marks Court 2254(d)(1) omitted). Extrajudicial directed United States.” 28 U.S.C.A. remarks (West Jarvis, juror’s Supp.2001). influencing Bell v. 236 at a resolution of an See (4th Cir.2000) (en banc), deliberation, if the re F.3d issue under even — denied, isolated, -, may cert. marks are contravene trial. guarantee In the absence of constitutional to a fair 363-65, court, any reasoning (finding from the state howev See id. at 87 S.Ct. 468 er, petitioner deprived right an re was of his independent we must conduct habeas the bailiff com applicable impartial jury view of the record and the law to an where “contrary jurors during to make trial that the to” or “unreason- mented two 67 between, improper communication guilty” he is on [petitioner],

“wicked fellow nonjuror wrong improper by, influence exerted anything [in there is and that “[i]f here, Supreme he petitioner guilty] upon juror, as Fullwood does finding (first third it” alter- both that an unautho will correct “must first establish Court Virginia, original)); Stockton made and that it ations rized contact was was Cir.1988) (4th (grant- F.2d 743-46 reasonably a character as to draw such jurors were sub- relief where ing integrity habeas of the ver question into owner ject of a restaurant tо remarks local government ... bears [T]he [then] dict. “fry the son of a suggested they who demonstrating burden of the absence bitch”). And, juror’s im- single if Stockton, 743; even at prejudice.” 852 F.2d improper by an ex- partiality Corcoran, is overcome Burch v. 273 F.3d see also influence, has the accused been (“It traneous (4th Cir.2001) is clear that impartial jury. deprived right right impartial jury belongs to an Parker, 87 S.Ct. 468 defendant, presump a rebuttable (“[Petitioner entitled to be tried impermissible to an commu tion attaches unprej- impartial and not 9 or even (alteration and internal quotation nication.” jurors.”). udiced omitted)), filed, petition marks cert. (No. 01-9358); March Howard v. potential for mischief Because the (4th Cir.1997) (en Moore, 399, 422 party when a third establishes great is so banc). juror, private, extrajudicial contact with a Supreme adopted the rule that the Court However, process “due does not “any private communication contact [or] every juror a trial a has require new time juror ... a trial about the during with a placed potentially compromising in a been pre ... pending jury before the is matter situation,” virtually impossible since “it is prejudicial, pur if not made in sumptively in jurors every to shield from contact or of known rules of the court and the suance might theoretically fluence that affect their instructions and directions of court Smith, 217, 455 U.S. at 102 S.Ct. vote.” trial, knowledge with full during made Although jury’s into the 940. intrusions States, parties.” Remmer v. United potential process deliberative create the 450, 227, 229, 74 S.Ct. 98 L.Ed. 347 U.S. depriving a defendant of the constitu for bears government 654 guarantee impartial jury, tional of an presumption of rebutting burden of Supreme generally Court has found harm demonstrating that prejudice by “such appropriate. less error review See United juror contact with the was harmless to the Olano, 507 U.S. 113 States argues defendant.” Id. Fullwood he (1993) (“We 1770, 123 L.Ed.2d 508 S.Ct. presumption prejudice is entitled a analyzed outside intrusions generally have that the failed to rebut. state has upon jury prejudiсial impact.”); for Parker, 363-65, at 87 468 applied have Remmer 385 U.S. S.Ct.

We Stockton, (concluding that bailiffs comment to two federal habeas context. See 852 Stockton, jurors [petitioner], that the “wicked fellow F.2d at 743.5 Under when any- petitioner juror guilty” bias claim he is and that there is “[i]f habeas bases 1188, (10th Cir.1999) ("We arising disagree that 1193 5. Remmer was a direct review case conviction, causing ju- parte ex Remmer established the rule that from a federal some juror presumptively question applicability of communication with a rists to Remmer's prejudice deprives process due presumptive rule in federal habeas a criminal defendant of McKune, Amendment."). proceedings. See Crease v. 189 F.3d under the Fourteenth

679 finding petitioner guilty] equipóse” regarding the error’s harmless thing wrong [in ness. Id. at 115 it” S.Ct. We have Supreme Court will correct was harmless) (first applied the harmless error standard enun alterations in and third juror ciated in Brecht to claims of bias or Remmer, at 74 347 U.S. original); misconduct on several occasions. See Ba (returning 450 case for harmless er S.Ct. Lee, (4th Cir.2000) con v. 225 F.3d per where unidentified ror determination jurors Brecht (applying to claim that im juror, proposed triggering son a bribe to properly considered race delibera un inquiry, of which defendant was trial), capital in a North tions Carolina aware, by the Federal Bureau of Investi- denied, cert. S.Ct. Louisiana, Turner v. gation); U.S. (2001); Fitzgerald 466, 473-74, 546, 13 L.Ed.2d 424 Greene, (4th Cir.1998) 150 F.3d (1965) that defendant suffered (concluding juror’s if (concluding even one bias prejudice from officers’ association .with deprivation, resulted in a constitutional jurors charge during in their a case for federalism, comity, “the principles key prosecution the officers were which finality prevent overturning [peti us from testimony their conflicted witnesses and sentence, convictions and tioner’s] unless Smith, accused); that of with we are convinced that the error had sub (observing, in an injurious stantial and effect or influence case, implied juror remedy that “the biаs the verdict” determining required as juror partiality a hear allegations (internal quotation Brecht marks and alter oppor in which the defendant has the ing , omitted)); ation Howard v. Moore bias”); tunity prove actual see also (4th Cir.1997) (en bane) (con 399, 422 F.3d (4th Smith, 1134, 1139 Sherman v. cluding alleged parte ex communica (en banc) Cir.1996) (“Following the Su no tions with the “substantial lead, preme this court has re Court’s injurious in determining effect or influence peatedly juror examined instances of mis (internal jury’s quotation verdict” harmlessness.”). conduct and bias for omitted)); Smith, marks Sherman v. 89 Thus, if even the state court’s (4th Cir.1996) (en banc) 1134, 1140-41 F.3d there is no constitution determination ‍​‌‌​‌​‌‌‌​‌‌​‌‌‌‌‌‌​‌‌​‌​​​​​‌​‌​‌​​​​​​​​​‌​‌​‌‍that juror’s Brecht to unauthorized (applying “contrary al error was to” or “an unrea visit).. crime site application Supreme sonable of’ Court 1. Actual Influence

precedent, permitted are not to grant we we are habeas relief unless convinced Fullwood contends that the injurious a the error had “substantial re Booth affidavit entitles him to habeas determining influence in effect or it that the lief because demonstrates ver Abrahamson, Brecht jury’s verdict.” v. actually by improper dict influenced 619, 637, 1710, 507 U.S. 113 S.Ct. 123 respect to external influence. With Juror. (1993) (internal quotation L.Ed.2d 353 Austin, the Booth affidavit states that “[i]t omitted). If we are in “grave marks pressure was obvious to me that error, doubt” as to the harmlessness of an brought upon her her husband caused petitioner prevail. habeas must exactly way her to vote he wanted her McAninch, O’Neal v. 513 U.S. that Fullwood to.” J.A. 159. We conclude 992, affida portion 115 S.Ct. cannot use this of the Booth when, In light impeach jury’s doubt” exists in vit verdict. order “Grave record, ver evenly protect finality integrity matter so bal of entire against the harassment guard that the court feels itself “virtual dicts and to anced 680 imposes law seeking to invalidate a North Carolina jurors, party

of juror type strict limits on the the same upon of “a may rely evidence verdict may impeach offered to testimony be in conneсtion with juror’s process mental 15A-1240 verdict. See Gen.Stat. N.C.. Cheek, v. the verdict.” United States (“[N]o may evidence be received to show (4th Cir.1996); 136, see Fed. F.3d statement, conduct, event, any effect of States, 606(b); Tanner United R.Evid. upon juror the mind of a or or condition 107 S.Ct. processes concerning the mental which (1987). The Federal Rules of L.Ed.2d 90 determined.”). the verdict was Under type strict limits on the impose Evidence law, jurors may testify North as Carolina may be used to juror testimony prejudicial that external to the fact com See Fed.R.Evid. invalidate a verdict. made, munications were but not as to “the Bacon, 606(b); (applying at those matters had on their subjective effect 606(b) capital pro habeas Fed.R.Evid. Lyles, verdict.” North Carolina v. Stockton, F.2d at 743-44 ceedings); (N.C.Ct. N.C.App. 380 S.E.2d (same); Welborn, see also Gosier App.1989).6 (7th Cir.1999) (same). F.3d 510-11 principles preclude Since these Juror 606(b) grounded the common- Rule “is testifying Austin from herself as to against law testimo- rule admission alleged effect of her husband’s comments Tanner, 483 ny impeach a verdict.” processes in thought on her internal con- prohibits 2739. It U.S. at vote, they apply nection with her all the juror testifying as to “the effect of from hearsay testimony more to the of Juror any juror’s other anything upon that or Booth, only testifying who was not about influencing juror mind emotions as or thought processes Austin’s internal but juror’s pro- ... mental concerning speculating was also about how Austin ar- therewith.” cesses in connection Fed. therefore rived her decision. We must 606(b). juror may testify, A how- R.Evid. reject pre- Fullwood’s contention that he ever, prejudicial as to “whether extraneous unopposed im- sented evidence that an improperly brought information was proper actually influence resulted external any jury’s attention or whether outside enti- a death sentence and is therefore improperly brought to bear influence was tled to habeas relief. Thus,

upon juror.” “juror testimo- Id. Evidentiary Hearing ny concerning the outside еffect jurors of communication 'on the minds the question We turn to of wheth Stockton, at 744 is inadmissible.” 852 F.2d evidentiary er Fullwood is entitled to an added). (emphasis hearing based on the assertion in the course, experiment by juror a Of the resolution of this issue does court failed to suffi- upon reading Lyles, not turn our of which we ciently preserve petitioner's Sixth Amendment general proposition simply event, that cite for the rights). In the state court did not outline of North Carolina law tracks basic reject Fullwood’s claim relief on state for 606(b). Federal Rule of Evidence Even a Rather, evidentiary grounds. question proper application limiting a rule a of state whether the district court should hold hear- juror's ability impeach to his own verdict can ing We on Fullwood’s claim for relief. be- give rise to a Sixth Amendment claim of im- lieve our decision in Stockton makes clear Brigano, proper jury Doan v. conduct. See may present portion that Fullwood 722, (6th Cir.2001) (holding 237 F.3d 733-34 sup- previously specified Booth Affidavit to 606(b) application Rule that the of Ohio port his claim relief. for the state court to bar evidence of an out-of-

681 (4th 438, Cir.2000), 215 F.3d 454 cert. de that Austin’s husband Affidavit Booth nied, 822, 1095, penalty in the death as 121 believed strongly Austin proposition and told L.Ed.2d 706 general vote trial that she should throughout First, we conclude that Full- because in Fullwood’s case. a death sentence raised troubling allegations wood has external improper influence on the grant may A district court hearing develop was not peti but afforded evidentiary hearing to a habeas an issue, has one develop “failed to he satisfied least petitioner if the tioner Townsend, a claim” in state court the Townsend factors. See the factual basis of 313, statutory requirements (requiring are U.S. at 83 S.Ct. 745 a hear- unless certain 2254(e)(2). § ing 28 U.S.C.A. when the material facts are not ade- satisfied. See court). suggest developed that Fullwood quately The state does not state develop” the factual basis of his “fаiled to Second, we conclude Full- in section phrase is used claim as true, that, alleged might has facts if wood (Michael) 2254(e)(2). See Williams course, him to well entitle relief. Of 431-37, 120 S.Ct. Taylor, 529 U.S. juror’s may mere fact that a have a spouse (2000). Thus, L.Ed.2d 435 sec particularly strong philosophical or ideo 2254(e)(2) to an evi presents no bar tion logical leaning present does not alone id. at 120 S.Ct. dentiary hearing. See potential integrity to undermine the 2254(e)(2) (explaining that section process. not give deliberative Such would prisoners who have failed “applies only presumption prejudice rise to a since factual basis” state develop beliefs, biases, preferences “the of ev court). But, though section even juror may explored exposed by ery be 2254(e)(2) hearing, no to a an presents bar Stockton, the defendant at voir dire.” See not automatic —the evidentiary hearing is (distinguishing at 744 between 852 F.2d permitted to hold a hear district court is “juror impairment predisposition” petitioner alleges if addition ing only “the of an “extraneous danger the more serious that, true, if entitle him to al facts would communication”). Lee, 221 F.3d relief.” McCarver however, here, concern allegations The (4th Cir.2000). if peti “[E]ven [the allegations predisposition. more than precluded claim is not tioner’s] suggest in the affidavit contained Booth 2254(e)(2), mean he is that does not may pres- been that Juror Austin have evidentiary hearing only entitled to — impose a Johnson, throughout sured the trial may he be.” McDonald v. sentence, (5th Cir.1998). depriving Fullwood of his death 1056, 1059-60 Indeed, if jurors. impartial to twelve Moreover, right one of petitioner must establish true, concerning Juror Aus- allegations in Townsend v. the six factors' set forth Sain, type question that “draw into 9 tin are of a Stockton, (1963).7 verdict,” Lee, integrity of the Fisher v. L.Ed.2d evidence; (5) newly allegation of discovered factors are: 7. The six Townsend adequately de- facts were not (1) the material dispute of the factual were the merits (6) (2) hearing; hearing; veloped at the state-court the not resolved in the state fairly sup- appears is not state trier any state factual determination reason it that the whole; (3) ported by the record as a a applicant of fact did not afford the habeas fact-finding procedure employed hearing. fact full and fair adequate court was not to afford a full state 372 U.S. at 83 S.Ct. 745. (4) hearing; a and fair there is substantial confrontation, cross-examination, 743, and presumption a give F.2d at rise to of and of ' (internal prejudice. paucity quotation Given counsel.” marks omit- ted)). findings, factual record and the lack' however, we are unable to determine previously, petitioner we As noted who upon influence whether an outside Juror seeks to invalidate a verdict that al has injurious Austin had a “substantial and ready challenges withstood on direct re determining effect or influence in in view and state collateral review must Brecht,

jury’s verdict.” competent troduce evidence that there was (internal quotation 113 S.Ct. 1710 marks juror place. misconduct in the first See omitted). Accordingly, we remand for an Howard, Thus, 131 F.3d at 422. Full- ,on evidentiary hearing the issue of wheth allegations relating jury’s wood’s to the er the contact between Juror Austin and prior alleged awareness of his death sen deprived throughout her husband the trial tence must demonstrate that “extraneous Fullwood of a fair trial and had a “substan prejudicial improperly information” was injurious tial on effect” the verdict. presented jury’s to the attention. United (4th Acker, States 52 F.3d B. Consideration Extraneous Facts Cir.1995). If the information was both Related to Fullwood’s Case prejudicial, extraneous and Fullwood still conclude that during We also may only obtain if relief it “had substantial evidentiary hearing Fullwood’s the district injurious effect or influence in deter explore allegations court should Brecht, mining jury’s verdict.” considered, jury that the in violation of the 637, 113 U.S. at S.Ct. Amendment, prejudicial Sixth informatiоn Fullwood has made a sufficient thresh about his case that was never introduced showing old that these facts were extrane provided jury into evidence or dur ous, prejudicial and improperly brought to affidavit, ing trial. According to Booth jury’s attention so as to warrant an jury became “[t]he aware from outside evidentiary hearing.' Although Fullwood already sources that Mr. Fullwood had specifically does not identify the source of .by jury. been sentenced to death another facts, these this information is “extrane jury became that Mr. Full- aware because, tell, ous” so far as we can it was original wood’s death sentence had been trial, jury during revealed to the and it technicality reversed because of some in general is not the kind of information that volving a trial judge mistake the jurors bring with them into deliberations. allegation impli made.” J.A. 159. This Swinton, United States 75 F.3d cates rights Fullwood’s Sixth Amendment (8th Cir.1996) (observing “[a]l- among protections because jurors expected, though bring are com provides right Sixth Amendment is the monly assessing known facts to bear in impartial arrives at a verdict consideration, presented facts for their re upon developed “based at tri evidence juror anything sort other than Dowd, al.” Irvin v. 366 U.S. (1961); knowledge common or record might facts S.Ct. 6 L.Ed.2d 751 Tur see Amendment). Louisiana, 466, 472-73, be held to violate” the Sixth ner v. (1965) And, (“[T]he generally speaking, such information prejudicial developed against evidence nature. Arthur v. defendant Cf. Bordenkircher, (4th shall come from the in a witness stand Cir. 1983) (“[W]e public judi pressed courtroom where full there is are hard to think of protection cial right anything of the defendant’s more to an than damning accused con- an outside source.” J.A. 159. The second jury previously that a information (inter- charged.” Full- jurors him for the crime is that the discussed whether victed omitted)). marks quotation eligible parole nal wood would be for if the jury recommended a life sentence: evidentiary hearing Because no issue, this there are ever been hеld on has deliberations, jury became During additional facts for us to also insufficient from that life im- aware outside sources jury’s awareness of determine whether prisonment [0]ne did not mean life.... sentence, true, if “had previous Fullwood’s jurors family had a member that injurious effect or influ substantial and either worked at the courthouse or was verdict.” determining jury’s in ence way. involved in the law in some Ac- Brecht, 637, 113 1710.8 at juror’s spouse family cording to court, in the district conduct Accordingly, member, that the a life sentence meant also evidentiary hearing, should ing the years. in person paroled would be 20-25 jury’s develop the issue of whether discussed how Mr. Fullwood had We prior alleged awareness of jail already been since the murder him a fair trial deprived death sentence given and that credit for the time he had injurious ef had a “substantial and been in that he would be released on a fect” on the verdict.9 years. life sentence another 10-15 General C. Consideration respect par- to these J.A. 159-60.10 With Outside not made allegations, ticular Fullwood has Information entitle him showing a sufficient would Finally, supports his First, evidentiary hearing. to an with two addition Sixth Amendment claim to establish that the Booth Affidavit fails Booth’s allegations al contained Juror jurors’ that Fullwood alleged awareness jurors alleg affidavit. The first is that the appeal any decision it handed down would any decision we edly “became aware that jury improperly was communicated to appealed,” and that “this made would be extraneous information at information or that it was was revealed to us one of availability Not of a crimi- jurors only who had learned this from all. the other stated, and no impeach the evidence from this courtroom previously As Fullwood can take 8. Bell was juror testimony fact other source.” J.A. 38. If in fact the verdict with as to the prior given juror who the fact of the to the disclosed that extraneous information sentence, judge’s then the effect of the jury subjective to the effect of the death but not as present- complicate the issues jury’s process. instruction will information on the deliberative Stockton, Accordingly, We therefore believe the better ed to us. 744. hearing evidentiary knowledge direct that the course is to Juror Booth’s statement identify exactly happened. to what had received a death sentence be held that Fullwood respon- time our sense of ’’lessen[ed] the first as to 10.Juror Booth's additional statements sibility ... we felt that twelve other because subjective effect information would of this people had Mr. Fullwood rational sentenced impeach the verdict: that not be admissible death,” J.A. would not be admissible appeal knowledge would that Fullwood injurious a substantial and show effect responsibility ... be- "lessened our sense of upon the verdict. way in no we felt that our decision was cause possibility that Fullwood colleague correctly points final” and that the Our out that Full- significant might eligible parole "was a agreed seating of Juror Bell who be wood to the sentencing him to life in prior factor in our not indicated voir dire that he had However, he, giv[ing] prison” in the “not knowledge all and resulted of the case. like mitigating evi- jurors, judge the trial much consideration was instructed prior jurors dence.” J.A. 159-60. were] to voir dire that "[the information, upon it inform other commonly known himself to appeal [takes] nal jurors Fullwood’s had a jury at least one of members of the about his understand- but background. Juror fairly legal capital extensive ... ing [a defendant] murder during voir dire that she Booth revealed jury] if [the would serve than [less life] in degree crimi- undergraduate earned an life,” him to such information sentenced justice, interned at the Public nal that she jury’s internal relates to discussions Spartanburg, Defender’s office in South may upend not be used to a verdict. Carolina, a employed and that for she (7th Peters, Silagy F.2d attor- period by of time a criminal defense Cir.1990). Cleаrly, Juror Booth’s ney paralegal. as Accordingly, we conclude that Fullwood would experience likely made it that she not entitled relief under either the legal with the basics of the be familiar applica- “contrary to” or “unreasonable appeals. Full- process, including criminal 2254(d) §of on his prong tion” Sixth juror despite accepted

wood her as jury improperly Amendment claim that the possibility that she would be a clear source parole and the eligibility considered his process legal of information about the —as possibility might appeal. that he juror light for him in well as favorable background. her defense is the same with III.

Our conclusion to the respect allegations relating Fullwood next contends that the State jury’s alleged discussion of whether Full- Brady Maryland, violated might eligible parole. be Full- wood (1963), by jury wood failed establish failing to to Fullwood and his at- disclose pos learned information about Fullwood’s torney police statement to own parole during an source sible outside from At shortly stabbing. officers after the his Rather, affidavit, true, if trial. the Booth trial, moved, pursuant initial only jury discussed establishes exculpato- Brady, for the State to disclose parole general sentencing based on infor evidence, ry including “[a]ny statements juror provided by mation to an individual any law made Michael Lee Fullwood to juror’s family member who had some any other enforcement officer or witness exposure to the law. The affidavit does wholly par- which could be considered specify whether the information was tially exculpatory, which could tend to ne- passed along during or whether the trial any gate degree of the elements of first juror past during learned the information murder, or which could be considered Moreover, spouse. discussion with his any way mitigating.” J.A. 139. State view, qualify our this information does not produced Fullwood’s statement to Detec- virtually as extraneous matter since Sergeant tive Walt Robertson and Ted every juror preconceived will have notions Lambert, who interviewed Fullwood on process about the which the defen legal April hospital he while was can dant uncover and examine Stockton, recovering from a stab and various wound at 744 selection. See (“[T]he beliefs, biases, attending physicians cuts that the deter- preferences mined to be self-inflicted. Fullwood ad- every juror explored exposed may be dire.”). Deidre, claiming mitted that he had killed agree the defendant at voir We that, that he did not intend to kill her but had with the in the Seventh Circuit ab gotten away fought as he with her specific allegations sence of additional carried juror “an impropriety, when individual at the Hawks’ residence. second-degree he of malice in resentencing, element During Fullwood’s murder”). Second, Dur- that suppress argues this statement.11 Fullwood moved to counsel, Detective suppression hearing, his defense had he known about ing the statement, Lambert testified Sergeant and would have recommended Robertson 1, April statement on Fullwood’s use testify drug about that Fullwood about his coun- Deidre, informed defense 1985. Prosecutors before he killed which could have learned, for the they apparently sel by been corroborated to some extent De- time, the interview Full- during first tective Robertson. with Detective speak to alone

wood asked rejected argument The state court this Robertson, had known for whom Fullwood post-conviction proceedings relief Robertson testified years. a number of (1) on three alternative the state- bases: began crying and said that Fullwood (2) exculpatory; ment was not Fullwood but that he had indeed killed Deidre he prejudice no from the nondisclo- suffered cocaine and had lost con- using had been attorney sure because Fullwood’s knew that he also told Robertson trol. Fullwood about the cocaine use from Fullwood’s own in the stomach and had stabbed himself (3) statement; no and Fullwood suffered to die. Fullwood did not that he wanted that he prejudice because he himself knew suppression hearing. at the testify had told Robertson about his Detective resentencing court denied state use, convey cocaine even if he failed to this suppress his statement. motion to fact to defense counsel. defense contends that his Fullwood Brady teaches us that greatly been boosted Offi- “would have prosecution deprives a criminal defendant that Michael Robertson’s observations cer remorseful, process suppresses due it evidence when distraught, and Fullwood was to an ... where to that is “favorable accused and Fullwood’s statement crying, to guilt under the influence the evidence is material either Robertson that he was punish, irrespective good faith or of the commission of to drugs at time prosecution.” Brady, faith of the Appellant crime.” Brief of at 36. bad peti 1194. It is the the disclosure of this U.S. argues Fullwood burden, v. defense tioner’s see United States statement would have affected his (4th Stokes, Cir.2001), to First, ways. argues F.3d two Brady elements of a afforded him a establish the three this statement would have (1) at miti- evidence at issue must capacity “[t]he defense aimed violation: diminished (2) accused”; the “evi de- favorable to the gating his crime from first to second be suppressed by the Page, v. 346 N.C. dence must have been gree murder. See State (N.C.1997) (ex- State, inadvertently”; willfully or either 488 S.E.2d (3) material, i.e., capacity defense the evidence must be plaining that a diminished “prejudice have ensued.” Strickler may presented “negateD defen- must [the be Greene, 263, 281-82, 119 specific intent to ability to form the dant’s] (1999); Spicer con- see required first-degree kill for a murder (4th Inst., 194 F.3d premeditation Roxbury viction on the basis of Corr. Cir.1999).12 deliberation,” conclude that the decision it “is not a defense to We but that Detective had not suppress the state- 12. The fact Robertson 11. Fullwood also moved trial; however, private passed along of his con- court the substance ment at the first trial prosecutor absolve State versation to the did not did not rule on the motion because the Brady State its duties under because the statement. decided not introduce necklace, necessarily neither taken the knew court was unreason- state contrary assuming prosecution to law. Even could able nor that better than the Diaz, have”); qualified evidence at issue as favorable United States v. - Cir.1990) (“[T]here Fullwood, (2d he failed to establish oth- is no claim. components Brady two of a er suppression meaning within the improper already are Brady where the facts First, sup the State did not defendant.”). Fullwood known the tes press information that came out the resentencing tified at his trial that he used Fullwood’s conversation with Detective night cocaine on the before he killed Dei Fullwood, than Robertson because better Moreover, rejecting dre. in Fullwood’s on the anyone, knew about his use cocaine Brady proceedings, claim the MAR the night prior stabbing and knew that that North Carolina state court concluded he had recounted this fact to Detective attorney Fullwood’s knew that Fullwood Brady Robertson. The rule “does not night cocaine the using had been on compel of evidence available the disclosure Indeed, the murder. the record bears out sources, in to the defendant from other fact that trial Full- counsel knew about by the cluding diligent investigation de wood’s cocaine use.13 Fullwood has failed 920, Murray, 41 F.3d fense.” Stockton v. convincing to come forward with clear and (4th Cir.1994); also see United States finding. evidence to rebut this See 28 (4th Wilson, 378, Cir.1990) v. 901 F.2d 2254(e)(1); Smith, § U.S.C.A. Evans v. (“[W]here exculpatory information is (4th Cir.2000), 306, 220 F.3d cert. de only not available to the defendant but also nied, U.S. lies a source where reasonable defen (2001). Obviously, looked, L.Ed.2d 294 Fullwood dant would have a defendant is not attorneys and his knew about his cocaine Brady entitled to the ‍​‌‌​‌​‌‌‌​‌‌​‌‌‌‌‌‌​‌‌​‌​​​​​‌​‌​‌​​​​​​​​​‌​‌​‌‍benefit of the doc (cid:127) trine.”). Thus, pursued a ... does use and could have diminished “[n]ondisclosure Likewise,- exculpatory capacity not denote that no evidence defense. Fullwood exists, government possesses that the spoke but himself was well aware that he that exculpatory no evidence would be un private re with Detective Robertson and reasonably diligent available to defen that he had used cocaine on the vealed Thompson, dant.” Barnes v. 58 F.3d prior pur night to Deidre’s murder. The (4th Cir.1995). then, Certainly, 975 n. 4 therefore, material, ported- Brady was merely that is not available to information known to for his available actually the defendant but is known Thus, use. the state court’s determination defendant would fall outside of the Brady required that the statement was not to be Johnson, rule. See West place disclosed in the first was neither (5th Cir.1996) (rejecting capital de contrary law nor based on unreason Brady prosecution fendant’s claim that the application precedent. able suppressed suggesting evidence Second, Fullwood did not demon defendant fabricated his confession of victim; strate that the State’s failure to disclose stealing necklace from the “knew defendant whether or not he had mention of cocaine use to De- Fullwood’s Brady rule extends to evidence that court When the trial asked defense counsel only police investigators "known not he was aware whether substance Kyles prosecutor.” Whitley, conversation between Fullwood Detective Robertson, responded, general, 115 S.Ct. 131 L.Ed.2d 490 counsel "In yes, sir.” Tr. Vol. VIII at 1353. material, i.e., that the fact that corroborate Fullwood claimed Robertson tective him caused to to cocaine alleged night nondisclosure have used before the has prejudice. Supreme Court Ultimately, testimony suffer murder. possibility mere explained “[t]he only would still be the direct evidence of might information an item of undisclosed Accordingly, his cocaine use. we conclude defense, have helped might have rejection the North Carolina state court’s trial, the outcome of the does affected him Brady of Fullwood’s claim affords no ‘materiality’ in the constitutional establish “contrary relief under either the to” or Agurs, 427 States v. sense.” United application” components of “unreasonable 109-10, 2254(d). (1976). Rather, materiality Brady under probabil a

means that “there is reasonable IV. that, the evidence disclosed to ity been Fullwood that he argues is entitled to defense, proceeding the the result of the an evidentiary hearing on his Sixth have been different.” United States would Amendment claim that he received inef- 667, 682, 105 Bagley, v. 473 U.S. S.Ct. fective assistance of counsel because (1985). A reasonable attorney’s Specifi- his conflict of interest. probability exists when “the favorable evi cally, Fullwood that a hearing contends is the reasonably put dence could be taken to A1 necessary determine whether in a light case such different as whole Williams, attorneys the orig- one of on his confidence in the verdict.” undermine subsequently inal trial team who became Kyles Whitley, 514 U.S. attorney, participated an assistant district (1995). 1555, 131 Again, L.Ed.2d 490 S.Ct. prosecution in during the of Fullwood the that the failure to turn over this we note Williams, then resentencing proceedings. way deprived information in no Fullwood defender, represented public an assistant capacity defense based on of diminished phase of during guilt the Fullwood trial his cocaine use since Fullwood and his proceedings, original sentencing and the co attorney obviously were aware of the accepted position but later with the dis- remaining argument caine use. The the time Full- attorney’s By trict office. that, had Fullwood’s trial counsel known returned for wood’s case had been resen- Fullwood’s conversation with Detec about tencing, employed as a Williams Robertson, have tive he would advised prosecutor attоrney’s the same district in testify Fullwood to take the stand and handling prose- office that was Fullwood’s drug about his use because Detective Rob cution. Fullwood claims Williams story. corroborate Fullwood’s ertson could during participated on behalf state Instead, if attorney Fullwood’s feared that him of resentencing, thereby depriving testimony provided only Fullwood’s the ev under the right his to counsel Sixth drug in connection with the idence of use Washing- Amendment. See Strickland murder, appear it “would to be ton, 668, 104 type contrived.” J.A. 154. This is L.Ed.2d 674 reasonably tak of evidence that “could be factual basis for this Fullwood draws the in put en to the whole case such a different pres- from fact that Williams was claim in light as to undermine confidence during a capacity prosecutor in as a ent his Kyles, 514 verdict.” meeting Indeed, July 1991 criminal trial docket corrob Robertson could not Superior County in Buncombe Court night Fullwood’s cocaine be orate use cases, murder; including criminal only Robertson could schedule various fore the rejected MAR court resentencing, for trial. Full- The North Carolina Fullwood’s MAR to.the state court claim that had a conflict of wood submitted Williams transcript extremely excerpt deprived brief from interest that Fullwood of his con- July appears, It court session. rights, finding that “there [was] stitutional transcript, only that the on this dis- based no evidence that there was unethical July cussion of case Attorney’s conflict caused the District exchange involved a brief court session prosecuting re-sentencing pro- office counsel and the court between defense ceeding after A1 had become an Williams resentencing about when to schedule the Attorney” District and that Assistant trial. Neither nor District Attor- Williams that Mr. no evidence “[t]here [was] Moore, present, com- ney who was also part preparation Williams took scheduling mented on the of Fullwood’s re-senténcing assisted the trial of [the] time, object At did not case. any way.” in' hearing J.A. 165. These presence in the court- Williams factual determinations the state' court contends that room. Fullwood Williams’ correct, presumptively are and Fullwood presence meeting at the docket demon- only by them clear presenting can rebut participated strates that Williams convincing contrary. evidence to the prosecution of his former client on the 2254(e)(1). See 28 U.S.C.A. Both the charges against previ- same which he had MAR court and the district court state ously Fullwood. defended request for an denied Fullwood’s evidentia- response, In the state submitted an affi- ry hearing. Attorney

davit from District Moore. Ac- affidavit, cording to Moore’s Williams was Evidentiary Hearing A. “completely anything ‘fenced-off from re- “fail[] Because Fullwood did not to de- And, lating to FULLWOOD.” J.A. 161. claim, velop” of the factual basis this sec- pursuant policy, “[t]he to office Fullwood 2254(e)(2) presents tion no bar to an evi- case never ... in front of [was] discussed dentiary hearing in district court. A1 Williams even until this date. Mr. Williams, 529 U.S. at 120 S.Ct. 1479. ... Williams asked to leave the room [was] However, Fullwood is not entitled to a [prosecutor] Dreher or [District whenever hearing “alleges he unless additional facts Attorney working on the Moore] were case that, true, if entitle him to relief and would happened inadvertently and he come six Townsend fac- one of [the if establishes phone either of received a call [them] Fisher, (internal pertaining to 215 F.3d at 454 [Williams] tors].” Fullwood omitted). present.” J.A. 162. Moore further attest- quotation marks 22 ed that was in court on July Williams Fullwood claims that he is en with connection Fullwood’s case but evidentiary hearing titled to an because he Judge all

“because Lewis and counsel were that, true, if presented has facts entitle engaged process in a of a num- scheduling him on claim. Fullwood to relief this rais of trial.” ber cases for J.A. 161. Accord- es a Amendment claim on Moore, Sixth based may ing to Williams have called calendar, perceives attorney’s whаt he to be his con names of the cases on the includ- opposed attorney’s Fullwood’s, flict of interest as to his ing [have] “which would re- performance at trial or sentenc deficient report in a from the Bailiff that sulted] Indeed, ing. necessary corollary” to custody.” “[a] the named defendant was in right Amendment to ef dispute J.A. 161. does not Sixth accuracy right of fective assistance of counsel “is the Moore’s affidavit.

689 Tatum, from conflicts of representation ing that is free interests.” United States v. (4th Cir.1991) Angelone, (emphasis Burket v. 208 F.3d F.2d interest.” added). Cir.2000) (4th (internal quotation petitioner Once establishes Sullivan, omitted); both an actual Cuyler v. conflict of interest and an marks see 335, 345-50, perfor adverse effect on defense counsel’s S.Ct. mance, “prejudice then to the defense coun- is L.Ed.2d 333 When defense presumed new trial must be or by an actual performance impeded sel’s is 348-50, Id.; dered.” interest, Cuyler, see 446 U.S. at conflict of counsel “breaches the 1708. S.Ct. perhaps the most basic of duty loyalty, of duties,” counsel’s and renders ineffective present Fullwood has failed to Strickland, assistance. 466 U.S. at convincing clear and evidence to rebut the Moreover, duty “the finding state court’s factual that “[t]here loyalty merely when counsel violated not no evidence that Mr. [was] Williams took represents conflicting who have in- clients part in preparation or assisted in the terests, but also when counsel acts more re-sentencing hearing trial of in any [the] of, apparent for the benefit and with more way.” only Full- J.A. 165. evidence toward, prosecution than the sympathy support offered in wood of this claim was Gibson, defending.” client he is Fisher excerpt transcript July from the (10th Cir.2002); see 22 court proceeding, suggesting that it (10th Shillinger, Osborn v. 861 F.2d 612 possibility improper raised the of Williams’ Cir.1988) (“[A]n adopts attorney who ongoing prosecution involvement in the acts on a belief that his client should be his former client Fullwood. The state coun mean- ‘fail[s] convicted to function with an explaining July tered affidavit ingful sense as the Government’s adver- 22 proceeding. The state court’s determi ”) Cronic, sary.’ (quoting United States participate nation that Williams did not 648, 666, 466 U.S. 80 reasonable, resentencing given was (1984)). at- Accordingly, L.Ed.2d 657 an presented evidence to the state court and torney loyalties whose are so conflicted speculative nature of alle Fullwood’s that longer “functioning he or she is no as gations participation of Williams’ in the guaranteed the ‘counsel’ the defendant resentencing proceedings. See 28 the Sixth Amendment” renders ineffective 2254(d)(2). § Fullwood has U.S.C.A. Strickland, at assistance. U.S. facts, present any failed to other much less 2052. S.Ct. evidence, convincing clear and that would the state rebut court’s determination. See petitioner a habeas When 2254(e)(1). Therefore, we 28 U.S.C.A. deprivation claims a Sixth Amendment be Howard, accept must it as true. See interest, attorney’s cause of his conflict of at F.3d 406. two-part analysis then the Strickland accept ineffective claims modified assistance Because we as true the determi- Burket, at in the slightly. See 208 F.3d 184. On nation that Williams did not assist claim, petitioner prosecution during resentenc- conflict-of-interest must Fullwood (1) attorney ing, “allege show that his had “an actual Fullwood must additional facts (2) that, true, if him conflict of interest” and that the conflict would entitle to relief.” (internal McCarver, “adversely lawyer’s quota- of interest affected his 221 F.3d at 598 omitted). performance.” Cuyler, at Fullwood has failed 446 U.S. tion marks that, proven, if allege 100 S.Ct. 1708. An actual conflict arises to additional facts an actual “actively represents when counsel conflict- would establish Williams had A evidentiary hearing. remand for an that the conflict interest conflict of duty have a court does indeed The state performance. adversely affected his possible con into defense counsel’s inquire ineffective assistance of Fullwood’s focus the сourt “knows or of interest if he no flicts did claim is on what Williams after particular that a Fullwood, reasonably should know daring represented longer at Cuyler, exists.” attorney. conflict as Fullwood’s time he served Fullwood claims that he is 1708. claim that Williams S.Ct. Fullwood does not hearing because to relief or to a per- his entitled that hindered a conflict of interest into by the trial court inquiry there was no guilt phase or during the formance possible conflict of interest. Su Full- sentencing phase. Nor does original Court, however, recently rejected performance preme wood contend Williams’ petitioner is auto the idea that a habeas during orig- subpar respect in any trial relief when the matically entitled to does not forecast inal trial.14 Fullwood inquiry make an mandated ac- court fails to suggesting that Williams any evidence Cuyler. Taylor, Mickens v. other than tively represented any interest -, -, trial original 291, (2002). Even if the trial L.Ed.2d relationship with the dis- had a Williams mandatory to conduct a his court has failed attorney’s office that hindered trict Tatum, Cuyler, petitioner still review under represent Fullwood. See ability to to establish “that the conflict that an actual must be able (explaining at 375 adversely affected his counsel’s “ac- of interest arises when counsel conflict interest interests”). performance.” Id. represents conflicting tively reject Fullwood’s claim Accordingly, we order suggests that we should evidentiary to an hear- that he is entitled he has not hearing on this issue because ing on this issue.15 federal court. afforded one state or been Mickens, however, require does not Inquire B. Court’s Failure District in all cir- evidentiary hearing be held cumstances, nor Mickens alter the reject Fullwood’s does also We duty extends inquire fact that a court’s the failure of the state court to claim that of which it is or reason- possible only to conflicts inquire sponte sua into a Sixth Cuyler, aware. ably should be violation based on Williams’ Amendment 1708. There was U.S. at 100 S.Ct. presence meeting requires at the docket us effectively loyalties petitioner proceedings, that the was During habeas her state Full- 14. counsel, performance Cuyler, wood claimed that Williams' 446 U.S. at 345- without see during original 1708; Arkansas, trial was deficient. Full- Holloway v. advanced this claim in district wood also 475, 481-83, 98 S.Ct. however, court; pursue to he has chosen not Tatum, (1978); 943 F.2d at L.Ed.2d appeal. that claim on ana- general process principles seem less due lytically See United States awkward here. Although advances this claim on Cir.1985) Schell, (4th ("We 775 F.2d grounds, he is we note that Sixth Amendment process violated when an conclude that due on this claim to likewise entitled to no relief partici- attorney represents then a client and to, develop he cited but did the extent that pates prosecution client with in the that Fifth, Eighth argument upon, an event, matter.”). In respect to the same Fourteenth Amendments. inability the factual given to rebut in an assis- Because our focus ineffective court, our conclu- determinations of state petitioner’s tance claim is on whether even if Fullwood had would be the same sion repre- attorney, the time that he or she process theory. vigorously pursued a due in his or petitioner, sented the was so divided any objection by Q. never Fullwood’s defense What was [defendant’s] reaction to appearance at the docket death of his team Williams’ brother about five prior months [the meeting. victim’s] Fullwood has not directed us to murder? anything else would indicate that the A. very upset [Defendant] was at the poten court should have known of a state death of his brother. He was there at problem. tial Amendment See Mick- Sixth the nursing home when I received the ens, 122 1242 (explaining S.Ct. at call about the my death of son. obligation inquire there is no “when the Q. you What did he do—did him see do a vague, unspecified trial court is aware of say something? conflict”). possibility of “Absent such an Well, A. he called [the victim] and [the objection participation], attorney’s [to came victim] on over. She came in from petitioner satisfy two-part must con right work. She was there with me.... flict-of-interest standard identified But very upset was [defendant] about [Cuyler Taylor, Mickens v. Sullivan].” the death of his brother. (4th Cir.2001) (en banc), Q. Did up- [defendant] continue to be -, aff'd, 535 U.S. set about the death of his brother? L.Ed.2d 291 For the reasons stat A. I don’t think he really got ever over previously, ed Fullwood is not entitled to completely. it He depressed was evidentiary hearing two-part on the everything. Cuyler test. Fullwood does not even al Q. [your Was who son] [defen- died lege actively Williams served conflict dant’s] older brother? interests, ing much less that Williams’ al was, leged loyalties deprived divided him A. He and they very were close. my He was firstborn rejec counsel. Because the state court’s child. contrary

tion of this claim was neither Q. You indicated that [defendant] application nor an unreasonable of clearly depressed over the loss of his brother? law, established Fullwood is not entitled to A. He was. 2254(d). relief under Now, counsel], COURT: you [defense questions previous-

haven’t asked those ly- V. No, sir, [DEFENSE I COUNSEL]: but Fullwood contends that the trial court’s asked what [defendant’s] reaction was to exclusion of purportedly mitigating evi- his brother’s death you sustained dence on state evidentiary grounds that. to an amounted error of constitutional Yes, sir, I COURT: did.

magnitude. During resentencing, defense you [DEFENSE COUNSEL]: Would sought counsel testimony to elicit from questions? allow me to ask these Fullwood’s mother about Fullwood’s reac- upon COURT: I rule them they’re when brother, tion to the death of his older a asked.... murder victim. The trial court initially testimony

excluded this hearsay on III, Fullwood 472 S.E.2d 888-89. After However, grounds. permitted the court jury returned, defense counsel did not proof Fullwood to make an offer of outside attempt to ask Fullwood’s mother these or presence of jury, whereupon this any other questions about Fullwood’s reac- place: exchange took tion to the murder of his brother. 692 that Fullwood conclusion was ultimate North Carolina appeal, the direct

On Full “prejudicial error.” not show argu- could rejected Fullwood’s Supreme Court III, The at 889. state wood 472 S.E.2d “poten- trial excluded that the court ment however, court, its reason did not discuss in vi- evidence mitigating tially compelling of standards deferential ing. Id. at Eighth Amendment.” olation of 2254(d)(1) indepen apply, we must § but that state evi- explained The court applica and the dently review the record opinion on “[l]ay dentiary permitted law them. See another[,] principles apply ‍​‌‌​‌​‌‌‌​‌‌​‌‌‌‌‌‌​‌‌​‌​​​​​‌​‌​‌​​​​​​​​​‌​‌​‌‍... if ble legal state of the emotional Bell, 163; Quinn Haynes, v. 236 F.3d at perception rationally on the based (state (4th Cir.2000) However, 844 n. 8 “[a]t Id. at 889. witness.” claim adjudicated on court constitutional asked [first] mother was time [Fullwood’s] pre squarely the merits claim where his broth- Fullwood’s] reaction [about limited though it even court its sented to present- had' been death, no er’s evidence denied, law), cert. 532 analysis to state had [suffi- mother ed that' [Fullwood’s] 121 149 L.Ed.2d 762 S.Ct. knowledge of mental U.S. personal [his] cient] question. permit an answer (2001). state” concluded that

Id. The court of A state court’s resolution if prejudice even could not demonstrate generally does not evidentiary question error be- trial court had committed claim under cognizable rise to a give pursued, the matter Fullwood never cause Garrison, 724 § 2254. Hutchins “testimony was despite the fact that again (“ (4th Cir.1983) ‘Normal F.2d 1437 to establish presented during voir dire ... admissibility of evidence in ly, the personal defendant’s mother law of state [is matter] state trials ques- to answer knowledge sufficient constitu procedure involving not federal Id. tion.” ”) (alteration in original) tional issues.’ Carolina, v. North 283 (quoting of re Grundler The deferential standard Cir.1960)). (4th However, 2254(d) only to F.2d applies view contained mitigation offered in the case of evidence “adjudicated are on the claims that federal trial, capital i.e., sentencing phase of a court, at the “[i]f the state merits” Amendments Eighth “the Fourteenth properly presented to state claim was pre ... not be require that the sentencer adjudicated it.” court and the state court mitigating Fisher, However, considering, from as a if the cluded 215 F.3d at 445. charac any aspect a defendant’s factor, claim properly presented has “petitioner of the circumstances has ter or record court but the state court the state proffers merits,” the offense that the defendant adjudicated on the the claim than death.” for a sentence less as basis apply a de novo review. standard we 586, 604, (4th Ohio, Lockett v. F.3d Angelone, Weeks (1978) 225, 120 (emphasis in Cir.1999), S.Ct. aff'd, 528 U.S. Oklahoma, Eddings v. original); see Although 145 L.Ed.2d 104, 113-14, 102 L.Ed.2d specifically U.S. Supreme Court Carolina North (1982) (“Just may not as the State evidentiary re only state law discussed from con claim, preclude sentencer statute are satisfied solving this we factor, may neither sidering any mitigating adjudicated on the Fullwood’s claim was consider, a mat to as § the sentencer refuse Recogniz purposes merits for of law, evi mitigating ter relevant premised on ing that Fullwood’s claim of dence.”). Thus, Supreme Court has Amendment, “the the state court’s Eighth very any impediment sensitive to been would have constituted a circumstance to any type mitigating the consideration of of which jury independently would have in a sentencing hearing.” evidence death value, accorded mitigating Fullwood has Hutchins, 724 at F.2d 1437. We have not demonstrated how the exclusion of this that, circumstances, noted certain under testimony could have had a “substantial Due “[t]he Process Clause of the Four- injurious effect or influence deter- may require teenth Amendment the ad- mining Brecht, the jury’s verdict.” mitigating mission of evidence even if (internal at U.S. 113 S.Ct. 1710 quota- (e.g., state-law rules of evidence hearsay) omitted). First, tion marks judge the trial French, it.” Boyd would exclude 147 did not bar Fullwood categorically from (4th Cir.1998) F.3d (emphasis presenting evidence about his reaction to added) (citing Green v. Georgia, murder; rather, his brother’s (1979) 99 S.Ct. precluded mother was testifying from on curiam)). (per evidentiary grounds. After Fullwood es- tablished a better foundation for this line hand, princi On other of questioning, the trial court made clear ples developed in Lockett Eddings do that he try was free to again, but he did evidentiary not eviscerate all state rules pursue Second, not further this issue. with respect mitigating evidence offered obviously himself could have tes- capital sentencing proceedings. See subject tified about this when he took the Hutchins, (“We F.2d find no stand on his own behalf but he failed to do Eddings indication that pre Lockett so. Fullwood every opportunity empt all state rules of Both evidence. present this information to the jury after speak types evidence, cases about objection the initial hearsay was sustained. rules”). evidentiary example, For ap Accordingly, we conclude that the decision plication hearsay of the rule to exclude rejecting state court this claim was evidence offered in mitigation of the death contrary neither to nor an unreasonable penalty clearly is not a per se constitution application clearly Supreme established al Angelone, violation. See Buchanan v. precedent. Court (4th Cir.1996), 348-49 aff'd, 139 L.Ed.2d permissible It is VI. exclude on hearsay grounds mitigating evidence which Finally, Fullwood contends “only probative cumulative [of] value.” jury instructions were unconstitution (concluding Id. at 349 that “[t]he exclusion ally vague Eighth under the Amendment. hearsay statements offered ... jury unanimously beyond found a rea purpose providing sup additional sonable doubt the existence of single port for Dr. Brown’s conclusion that Bu aggravating pre circumstance that was chanan acted under extreme distress” was sented to the the murder was —that not reversible error because Buchanan was heinous, especially or cruel. atrocious able to offer other evidence of mitigat 2000(e)(9). N.C.G.S. 15A “In the case of circumstance). ing statutory aggravating circumstances in a

Assuming testimony scheme, capital punishment from a circumstance Fullwood’s mother about Fullwood’s may vague provide reac be so as to no ... tion to his brother’s murder would have meaningful distinguishing basis for a death supported mitigating murders,” Fisher, one of the penalty circum case from other stances Fullwood offered to the jury thereby “failing] 215 F.3d at ade- 694 outrageously must And juries they what wicked vile.

quately to inform ... impose penalty the death to designed high find to “cruel” means inflict a open- of leaving] them ... with kind pain utter degree or with indifference or has held to ended discretion” that been enjoyment the suffering even of of oth- Amendment, Maynard the Eighth violate However, this enough ers. it is not that 356, 361-62, 108 Cartwright, 486 U.S. heinous, be cruel as murder atrocious or (1988). 1853, 372 S.Ct. 100 L.Ed.2d just those terms have been defined. especially This murder must have been alone, Standing North Carolina’s heinous, cruel, or and not ev- atrocious heinous, atrocious, ag “especially or cruel” ery especially murder For this is so. is gravating circumstance unconstitutional heinous, especially murder have been 363-64, at ly vague. Maynard, See 486 U.S. cruel, any brutality atrocious or which (holding “es S.Ct. 1853 Oklahoma’s 108 was involved in it must exceeded have atrocious, heinous, ag cruel” pecially or present normally that which is to be unconstitu gravating circumstance killing or this murder must have been Fisher, 215 at 458 tionally vague); F.3d pitiless or crime which [conscienceless] infirmity of (recognizing constitutional unnecessarily tortuous victim. to the heinous, “especially atro Carolina’s North circumstance). cious, or cruel” aggravating 18,1994 August at Tr. 8-9. If ... statutory circumstance “[a] argues this instruction provide vague meaningful is alone too provide constitutionally fails to sufficient ac guidance may the sentencer be [it] guidance jury. The North Carolina companied by limiting which instruction Supreme rejected on argument Court this Fisher, provide guidance.” does sufficient appeal following direct Fullwood’s resen- Arizona, 457; F.3d at 215 see Walton v. trial, III, 472 tencing see Fullwood S.E.2d 654, 3047, 639, 111 S.Ct. refusing depart thus from its (1990) if (explaining L.Ed.2d 511 that an previous decision identical set statutory too aggravating circumstance is constitutionally jury instructions was suffi-

vague, then court must “determine under Supreme cient United States Court whether state courts have further de see precedent, Syriani, North Carolina v. vague fined the terms and ... whether (N.C. 333 N.C. 428 S.E.2d 140-41 constitutionally those definitions are suffi 1993). Dixon, cient”); Smith v. F.3d banc) (4th Cir.1994) (en (explaining that conclude that the North We Carolina limiting North Carolina’s scheme needs a Supreme rejection Court’s muster). pass instruction to constitutional contrary claim was neither an un to nor application clearly reasonable estab At trial resentencing, the court instruct- Supreme precedent. We lished Court ed the rejected recently argument this in two possible aggravating one [circumstance] capital involving cases North same may by you be considered and that one statutory circum aggravating Carolina only. following aggravating Fisher, 457-59; stance. F.3d at might applicable circumstance which be Lee, Frye also 907- see F.3d especially this case. Was this murder (4th Cir.), denied, heinous, cert. atrocious or cruel? In this con- text, extremely means wicked “heinous” shockingly again evil. “Atrocious” means do: so in Fullwood’s case. We

VIL during [Austin] the trial and during delib- erations that she should convict [Fullwood] up, grant applica- To sum we Fullwood’s ” and sentence him to death.’ The affidavit appealability tion for certificate of on his also opinion included Booth’s that “it was contact, improper claim of jury but we ... obvious pressure brought reverse the decision of the court district upon by her [Austin] husband caused her only grounds on the narrow that Fullwood exactly to vote way he wanted her to.” should have been afforded a hearing on his claim that Juror Austin was improperly Carolina, In North when a verdict husband, influenced by the trial her sought impeached, here, to be as N.C. jury and that improperly learned of § GemStat. applies 15A-1240 and is as and considered the fact that Fullwood had follows: been sentenced to death for Deidre’s mur- § 15A-1240. Impeachment of the ver- der once before. We affirm the remainder dict disposition district court’s of that (a) Upon an inquiry into validity claims, claim. respect With to the other verdict, of a may no evidence be re- we conclude the state court’s refusal ceived to show the effect state- grant to, relief contrary was neither nor ment, conduct, event, upon or condition of, application an unreasonable clearly es- juror mind of a or concerning the tablished federal law by as decided processes mental by which the verdict Supreme deny Court. We ap- was determined. plication for a certificate of appealability (b) (a) limitations subsection with respect to his other claims and dis- do not bar evidence concerning whether them accordingly. miss the verdict was reached lot. PART, AFFIRMED IN REVERSED (c) jury After the dispersed, has PART, IN IN DISMISSED PART AND testimony juror of a may be received to REMANDED.

impeach the verdict of the on which WIDENER, served, Circuit Judge, concurring subject he limitations and dissenting: (a), only subsection when it concerns: (1)

I concur in Matters not evidence majority opinion which with the thereof, came to the exception of Part II attention of one or I more as to which jurors respectfully under dissent. I would circumstances which affirm. would violate the defendant’s constitu- Part II majority opinion is divided tional right to confront the witnesses parts: into two Part A. is Outside Influ- him; against or By ence Party. Third Part B. is Con- (2) Bribery, intimidation, or at- sideration Extraneous Facts Related to tempted bribery or intimidation of a Fulkoood’s Case. juror. A., I first consider Part which relies

upon affidavit,1 Miss Booth’s affidavit, which the respect The Booth with to Mrs. majority describes Joyce husband, as “Juror Austin Austin’s plainly was within ‘strongly _, 1240(a) influenced statement, conduct, her “any as husband strongly pro-death event, [who] was upon or condition the mind of a penalty’ and jurors told Booth and juror other concerning processes the mental that her husband ‘was constantly telling by which the verdict was determined.” appended 1. The Booth affidavit is hereto. statute, (N.C.1996); true, since, under the 473 S.E.2d 310 North Car being

That Rosier, 826, any received” to show olina v. 322 N.C. 370 S.E.2d may “no be evidence effect, (N.C.1988); any requirement North v. Mu there is not 359 Carolina such (N.C. takbbic, 264, for the Constitution 345 154 under United States 317 N.C. S.E.2d Johnson, 1986); evidentiary hearing on that issue. 298 an North Carolina n 355, (N.C.1979), 259 752 and N.C. S.E.2d a deci- majority relying decision on The Cherry, North Carolina v. N.C. 257 298 the Carolina intermediate sion of North (N.C.1979), string an S.E.2d unbroken Appeals, Lyles, North Carolina v. of Court Supreme from North Carolina of cases the 390, 394, has N.C.App. 380 S.E.2d giving § effect to 15A-1240. Court literal to respect that with decided the affidavit Indeed, Lyles even the case that states is to admissible Mrs. Austin’s husband 606(b) § “Both Rule and 15A-1240 unam an prejudicial the fact of external show prohibit biguously inquiry into the effect of subjec- not as “the communication but to during anything occurring deliberations matters had their ver- tive those on effect minds.” upon jurors’ at 394. S.E.2d dict.” I Because that influ- problem majority decision believe “outside

One .with the . majority opinion as in the ence” related Lyles that not decide the case under is did (a) statute, may only refer influence the mind upon the majority § of the as deci- Austin, infers, I think the remanding un- of Mrs. that Lyles rather was decided sion (c)(1) statute, evidentiary hearing is not § the its decision same der of by the Constitution and that the obviously required under facts of correct the of courts a of a decision the North Carolina state Lyles, photograph In case.. evidence, give no relief on account the Booth lineup had admitted into of been- to, respect contrary is affidavit not paper the bottom of the with under of, application clearly the or an unreasonable photograph concealing “Police words Wilson, by law as the North established fеderal decided Department, Carolina.— Supreme the Court of United States. See 12-07-81.” That evidence contra- States, Tanner United testimony dicted of the defendant’s alibi U.S. and thus it was which S.Ct. witnesses evidence by jury given the was considered and was majori- II B. I next consider Part retired, jury jury the and not after ty opinion which is based on Booth the defendant, presence in the of which jury affidavit to the effect that “The be- Thus,

violated confrontation clause. came from outside sources that Mr. aware fact of consideration the date of already Fullwood had been sentenced place photograph by jury by jury. death another became (c)(1) § inwas violation of of the statute. that Mr. death original aware true that also It is the court considered had been sentence reversed because consideration of substantive evidence involving technicality some a mistake meaning extraneous within the information judge trial made.” 606(b), dealing Rule but are we not here evidence, only hearing constitutionally item I with of substantive believe no party. outside influence third amend- required since defendant’s sixth with attempts by rights affidavit ment the al- And Miss Booth her were affected verdict, Therefore, impeach leged her own contacts. violation extraneous finding majority the rule. The does not consider habeas court’s was not “con- state to, Heatwole, ap- trary North Carolina v. or involved an unreasonable 344 N.C. of, affidavits, clearly neys’ established Federal plication this Booth affidavit was 2254(d)(1). only law...28 U.S.C.A. filed with evidence habe- state in support as court of defendant’s constitu- requires prejudi extraneous and Brecht tional majority’s opinion claims. The ex- cial information to have “substantial plained background: Miss Booth’s determining effect injurious or influence verdict.” Brecht v. Abraham jury’s Juror Booth revealed voir dire son, that she an undergraduate earned de- (1993). L.Ed.2d But no such harm is 353 in gree justice, criminal that she in- present here. As noted the district terned the Public Defender’s office in as a opinion, court “trial counsel knew Carolina, Spartanburg, South and that voir a the result of dire that member of employed period she was for a of time case, jury prior knowledge had some the a by attorney criminal defense as a newspaper relating read accounts had Clearly, paralegal. expe- Juror Booth’s affir- prior sentencing, to Petitioner’s but likely rience made it that would she be such matively decided that information legal pro- familiar with the basics of the pro- juror’s ability would affect the not to cess, including appeals. criminal Full- fair re-sentencing vide Petitioner with a accepted juror despite wood her as a the Trial did not this hearing.” counsel excuse possibility clear be she would a juror and excuse-for cause was not re- legal source information about the Green, quired.2 v. 336 443 State N.C. juror process well as for favorable —as (1994), denied, S.E.2d 14 cert him in light background. of her defense S.Ct. L.Ed.2d 115 130 547. Un- affidavit, Even with Miss Booth’s defen- law, der North Carolina reversal is not dant offers any alleged no evidence that by juror’s a de- required knowledge of juror knowledge concerning past con- his prior fendant’s death sentence. State not, fact, did juror viction come from the Simpson, 331 N.C. 415 S.E.2d who stated voir he during dire that had (1992), denied, cert. past knowledge of conviction. Be- this De cause defense counsel refused to remove fendant, however, not this challenge does permits juror and North Carolina law juror’s prejudice, re possible but instead juror I do jury, this to sit on the not on Booth lies affidavit. habeas,court’s believe that the deci- state alleges jurors This affidavit that the ob- to, contrary sion an unreasonable tained de- relating outside information to of, application law.3 federal particular, fendant’s case. In the affidavit Moreover, I with the jury agree Mr. state habeas claims “the became aware thаt presented original had court defendant had his Fullwood’s death sentence technicality respect by been some evidence with to said reversed because of issue Assuming mistake the trial had extrane- involving judge alleged affidavit. Along with two by made.” defense attor- ous information was not attained addition, appeal by judge's denying 2. In as noted on direct mo trial decision defendant's Court, cause, Supreme North Carolina "defendant juror who had tion excuse the peremptory failed exercise chal- all of his previous information about conviction. lenges.” French, F.Supp. Green v. (4th (E.D.N.C.1997), affirmed, 143 F.3d Green, 3. On review State v. habeas 1998) (the question' not dis Cir. current federal Car- district court affirmed North cussed). Supreme olina Court's that the determination during At various times the trial and knowledge had of defendant’s 3. juror who deliberations, during jurors gained out- conviction, affida- I that this past believe newspapers, from news side information any failing to mention vit’s vagueness, broadcasts, family friends and members contact, precludes an ev- outside particular aspects various of Mr. Fullwood’s about has hearing since the defendant identiary case. This outside information was used “competent not evidence introduced jury its deliberations as is extrajudicial communication there was an below; specifically set more forth Moore, or contact.”4 Howard banc). (4th Cir.1997) (en The from jury became aware outside already had sources that Mr. Fullwood Thus, that the decision opinion I am of been sentenced death another declining give court of the state jury. became aware that Mr. of the Booth affidavit was relief on account original death sentence to, “contrary or involved unreason- been reversed because of some techni- of, clearly application able established cality involving judge a mistake the trial law, by Federal as determined Su- knowledge had made. This did lessen preme of the United States.” Court in responsibility making our sense of precedent of Finally, I fear that we decision because felt that oth- twelve strength this on the of impeaching people verdict er rational had sentenced Mr. death; establishing prece- affidavit is Fullwood to Booth will denigrate jury dent which verdicts. that any 5. We also became aware deci- appealed. we I sion made would be NORTH CAROLINA STATE OF to believe this information was revealed COUNTY OF BUNCOMBE jurors by us one of the other who had learned this from an outside source. knowledge This our of lessened sense AFFIDAVIT OF LAURA BOOTH in responsibility making our decision be- BOOTH, being duly LAURA first we that our in cause felt decision was no sworn, hereby depose say: and does final; way jurors 1. In I was who one Austin, juror in particular, Joyce 6. One presided over jury served on the which an strongly was influenced outside Full- re-sentencing of Michael Lee source. Ms. Austin told us that her jury that Mr. wood. The recommended strongly pro-death penalty husband was death; to Fullwood be sentenced that constantly telling and he was her and during the trial deliberations jury 2. the trial the instruct- During was that she should convict him sentence ed to listen news accounts of the not him to It was that death. obvious me case, investiga- not to conduct its own pressure brought her upon her tion, and not to discuss the with case exactly husband caused her to vote family Regard- friends and members. to; way he her wanted hard comply, less how we tried of deliberations, media, During family friends and were constant- 7. became im- ly providing available us with outside aware from outside sources life I prisonment information. did not mean life. As re- affidavit, prejudice, particu- presumption 4. I believe this which if not rebut- do not larly ted, provided by juror a Miss requires hearing. when with evidentiary background, sufficiently Booth's warrants call, jurors family had mem- depose say one of the that she had read the ber that either worked at the courthouse attached affidavit and that the information in way. or was the law in therein involved some cоntained was true to the best of juror’s spouse knowledge. her According family member, a life sentence meant that the day February, This 13th person paroled years. would in be 20-25 M. John Purvis /s/ how We discussed Mr. Fullwood Notary Public jail already been in since the murder My Expires: Commission 5/7/2002 credit given for the time he had been that he would be on a released years.

life sentence in another 10-15 paroled

That Mr. Fullwood would be

and back significant on the streets was a

factor in sentencing our not him to life ‍​‌‌​‌​‌‌‌​‌‌​‌‌‌‌‌‌​‌‌​‌​​​​​‌​‌​‌​​​​​​​​​‌​‌​‌‍addition, prison. In because if

possibility parole Mr. sentence, given give we life did DIXON, Jane Holmes Plaintiff- much mitigating consideration ev- Appellee, things idence. The that Mr. Fullwood being prison had done since were EDWARDS; Vestry L. Samuel The of

virtually meaningless they sup- because Parish, John’s St. Defendants- ported a life sentence and we weren’t Appellants. going give life when it he meant would on paroled be and be back Iker, Right Reverend, Bishop Jack Leo streets; Episcopal of Diocese of Fort 8. The definitely subject out- Worth; Duncan, Right Robert Rever side influences which included informa- end, Bishop Episcopal of the Diocese tion provided that we were not Pittsburgh; Lee, Right of Peter James the trial. outside information was Reverend, Bishop Episcopal Di used us in our I deliberations. have Virginia; Powell, Right of ocese Neff threatened, coerced, not been other- Reverend, Bishop of Diocese of wise intimidated into state- making this Virginia; Southwestern Robert W. ment. I given have the opportuni- been Reverend, Ihloff, Right Bishop of the ty statement, to review this change Maryland; Rabb, Diocese John anything that needed to be changed, Suffragan Right Reverend, Bishop of make additions deletions I and/or Maryland; the Diocese of Clifton proper. deemed Daniel, 3rd, Right Reverend, Bishop of sayeth Furthermore the affiant not. Carolina; the Diocese of East Michael day This the 13th February, Curry, Right Reverend, Bishop B. Carolina; the Diocese of North J. /§/ Gary Gloster, Right Reverend, Suffra Laura Booth gan Bishop of the Diocese of North STATE OF NORTH CAROLINA Carolina; Kelsey, Right James A. Re COUNTY OF BUNCOMBE verend, Bishop of the Diocese of Carolyn personally Michigan; Laura Booth did appear be- Northern Tanner Reverend, being Irish, Right Bishop fore me duly first did sworn

Case Details

Case Name: Michael Lee Fullwood v. R.C. Lee, Warden of Central Prison, Raleigh, North Carolina

Court Name: Court of Appeals for the Fourth Circuit

Date Published: May 21, 2002

Citation: 290 F.3d 663

Docket Number: 01-13

Court Abbreviation: 4th Cir.