Lead Opinion
Reversed and remanded by published opinion. Judge THACKER wrote the opinion, in which Judge FLOYD joined. Judge AGEE wrote a dissenting opinion.
Petitioner William Leroy Barnes (“Barnes”), an inmate on North Carolina’s death-row, appeals the district court’s denial of his petition for writ of habeas corpus against Carlton Joyner, Warden of the Central Prison in Raleigh, North Carolina (hereinafter, the “State”). In 1994, after a jury trial in North Carolina state court, Barnes was convicted of first-degree murder and sentenced to death. Immediately after the jury returned its sentencing recommendation, Barnes alleged to the state trial judge that one of the jurors discussed the death penalty with her pastor the previous day. The trial court denied Barnes’ request to inquire further into the matter. The Supreme Court of North Carolina affirmed Barnes’ conviction and sentence on direct appeal, concluding, among other things, that Barnes had not proven that the alleged contact between the juror and her pastor prejudiced Barnes or denied him the right to an impartial jury.
In February 1999, Barnes sought state post-conviction relief on various grounds by filing a Motion for Appropriate Relief. In his Motion for Appropriate Relief, Barnes reasserted his claim of juror misconduct and presented additional evidence to demonstrate that a sitting juror improperly communicated with her pastor about the death penalty during the sentencing phase of Barnes’ trial and then relayed the information to other jurors. Despite this additional information, the state post-conviction court summarily denied Barnes’ claim without conducting an evidentiary hearing, adopting the same analysis as the Supreme Court of North Carolina.
After considering the various arguments raised in Barnes’ federal habeas petition, the district court concluded that the state court’s adjudication of Barnes’ juror misconduct claim was not contrary to, or an unreasonable application of, clearly established federal law. However, the district court granted a certificate of appealability, pursuant to 28 U.S.C. § 2253(c)(2), on the issue of whether a juror’s contact with her pastor violated Barnes’ Sixth Amendment right to a fair trial.
For the reasons that follow, we conclude that the state post-conviction court’s failure to apply a presumption of prejudice and failure, to investigate Barnes’ juror misconduct claim, which was based on an external influence on the jury, was an unreasonable application of clearly established federal law. Therefore, we reverse the district court’s judgment and remand for an evidentiary hearing to determine whether the state court’s failures had a substantial and injurious effect or influence on the jury’s verdict.
I.
A.
On October 30, 1992, at around 12:30 a.m., police officers from Salisbury, North Carolina, found B.P. and Ruby Tutterow shot to death in their home. The house was ransacked, and a number of the Tutterows’ belongings were missing. Later
This capital trial proceeded to the sentencing phase, where the jury was charged with determining whether the crimes committed by Barnes and his co-defendants warranted a sentence of death or of life imprisonment. See N.C. Gen.Stat. § ISA-2000. During the closing arguments of the sentencing phase, an attorney representing co-defendant Chambers stated, in pertinent part, as follows:
If you’re a true believer and you believe that Frank Chambers will have a second judgment day, then we know that all of us will too. All of us will stand in judgment one day. And what words is it that a true believer wants to hear? [“JWell done, my good and faithful servant. You have done good things with your life. You have done good deeds. Enter into the Kingdom of Heaven.[”] Isn’t that what a true believer wants to hear? Or does a true believer want to explain to God, [“]yes, I did violate one of your commandments. Yes, I know they are not the ten suggestions. They are the ten commandments. I know it says, Thou shalt not kill, but I did it because the laws of man said I could. [”] You can never justify violating a law of God by saying the laws of man allowed it. If there is a higher God and a higher law, I would say not.
To be placed in the predicament that the State has asked you to place yourself in, is just that. To explain when your soul is at stake. [“JYes, I know the three that I killed were three creatures of yours, God. And that you made them in your likeness. I know you love us all, but I killed them because the State of North Carolina said I could.[”] Who wants to be placed in that position? I hope none of us. And may God have mercy on us all.
J.A. 1532-33.
The next day, the jury recommended that Barnes and Chambers be sentenced to death for each murder and that Blakney be sentenced to a mandatory term of life imprisonment for each murder. After the jury returned its sentencing recommendations and exited the courtroom, the following colloquy took place between the court and defense counsel:
THE COURT: I take it everyone wants to enter some Notice of Appeal. Is that correct?
MR. HARP [CHAMBERS’ COUNSEL]: The first thing we would like to get in is that late yesterday afternoon we were informed, after talking to alternate jurors, that on Tuesday, before deliberation and before instructions were given by the Court, one of the jurors carried a Bible back into the jury room and read to the other jurors from that.*234 That it was also discovered by us that one of the jurors, one of the other jurors, called a member of the clergy, perhaps a relative of hers, to ask her about a particular question as to the death penalty. We also informed you of it this morning at ten o’clock and that we need to enter that on the record for purposes of preserving that.
MR. FRITTS [BARNES’ COUNSEL]: Judge, for Mr. Barnes we join in on that. We would for those reasons make a Motion for Mistrial and we would request the Court to inquire of the jurors, and I understand the Court’s feelings on that, but that would be our request. THE COURT: No evidence that anybody discussed the particular facts of this case with anybody outside the jury. Is that correct?
MR. HARP: No evidence that they did or did not as far as the conversation with the minister is concerned.
THE COURT: No evidence that they did though. Is that correct?
MR. HARP: No, sir.
THE COURT: All right. Well, I’m going to deny the request to start questioning this jury about what may or may not have taken place during their deliberations of this trial.
J.A. 1601-03. Thereafter, the trial court denied the defense’s post-sentence motions and rejected their request to conduct an evidentiary hearing with respect to juror misconduct.
On March 10, 1994, the court sentenced Barnes and Chambers to death, and Blakney to life imprisonment, for their first-degree murder convictions. In addition, each defendant was sentenced to two terms of forty years’ imprisonment for armed robbery and one term of forty years’ imprisonment for burglary. All sentences were to be served consecutively.
B.
Barnes appealed his conviction and sentence to the Supreme Court of North Carolina on various grounds. Relevant here is Barnes’ Sixth Amendment juror misconduct argument, which was based on two alleged occurrences: first, that a “juror called a minister to ask a question about the death penalty;” and second, “that a juror had taken a Bible into the jury room and read to the jury members from it before deliberations.” State v. Barnes,
Assuming arguendo that defense counsel’s assertions were accurate, there still was no assertion that the juror’s reading from the Bible was accomplished in the context of any discussion about the case itself or that it involved extraneous influences as defined by this Court. The issue, therefore, is whether the trial court abused its discretion by failing to inquire further into the alleged Bible-reading incident when faced with the mere assertion that a juror read the Bible aloud in the jury room prior to the commencement of deliberations and pri- or to the trial court’s instructions to the jury. As there is no evidence that the alleged Bible reading was in any way directed to the facts or governing law at issue in the case, we cannot say that the trial court’s actions were an abuse of discretion.
With respect to a juror’s alleged actions in calling a clergy member, a similar analysis applies. The trial court was faced with the mere unsubstantiated allegation that a juror called a minister to*235 ask a question about the death penalty. Nothing in this assertion involved “extraneous information” as contemplated in [North Carolina Rule of Evidence] 606(b) or dealt with the fairness or impartiality of the juror. There is no evidence that the content of any such possible discussion prejudiced defendants or that the juror gained access to improper or prejudicial matters and considered them with regard to this case. We cannot say under the particular circumstances of this case that the trial court’s actions in failing to probe further into the sanctity of the jury room was an abuse of discretion. These assignments of error are therefore without merit.
Id. at 68.
The Supreme Court of North Carolina likewise rejected Barnes’ other contentions on direct appeal and affirmed his conviction and sentence on February 10, 1997. Barnes,
C.
In February 1999, Barnes sought state post-conviction relief on various grounds, filing a Motion for Appropriate Relief (“MAR”) in Rowan County Superior Court (the “MAR Court”).
One of the exhibits attached to Barnes’ MAR was an “Interview Summary” of a May 31, 1995 interview of Juror Jordan.
In addition to Juror Jordan’s Interview Summary, Barnes’ MAR relied on a September 7, 2000 affidavit from Daniel C. Williams (“Investigator Williams”), an investigator hired by Barnes’ post-conviction counsel. In his affidavit, Investigator Williams described interviews he conducted with three jurors from Barnes’ trial, including Juror Jordan. According to Investigator Williams, Juror Jordan explained, “she called her pastor Tom Lo-max” (“Pastor Lomax”) in response to a defense attorney’s closing argument in which the attorney “suggested that if jurors returned a death sentence, they, the jurors[,] would one day face judgment for their actions.” J.A. 1892. Juror Jordan stated that she “discussed the lawyer’s argument with [Pastor] Lomax.” Id. During their conversation, “[Pastor] Lomax told [Juror] Jordan about another biblical passage which contradicted the passage relied upon by the defense attorney.” Id. The next day, Juror Jordan brought her Bible into the jury deliberation room and “read the passage suggested to her by [Pastor] Lomax to all of the jurors.” Id.
Investigator Williams also interviewed jurors Leah Weddington (“Juror Wedding-ton”) and Ardith F. Peacock (“Juror Peacock”), both of whom recalled that a member of the jury brought a Bible into the jury room during sentencing deliberations. Juror Weddington told Investigator Williams that “[t]he person who brought in the Bible read a passage to a juror who was having a hard time with the death penalty.” J.A. 1892-93. Juror Peacock could not recall the details of the verse, but she stated that it “dealt with life and death.” Id. at 1893. In a separate affidavit dated April 7, 2004, Juror Peacock stated that a defense attorney’s remarks that jurors would have to face God’s judgment if they imposed the death penalty “made the jury furious.” Id. at 1900. In response to this argument, one of the jurors read a passage from the Bible to the other jurors. Juror Peacock did not recall which juror brought the Bible or the exact verse that was read.
Investigator Williams also interviewed Pastor Lomax. Pastor Lomax confirmed that Juror Jordan attends his church. Moreover, although Pastor Lomax “could not recall the conversation recounted by [Juror] Jordan,” he “stated that it [was] possible that he did talk to her about the death penalty while she was a juror, but he simply does not remember it.” J.A. 1893.
Barnes’ MAR also attached an October 10, 2000 affidavit of Cynthia F. Adcock, an attorney with the North Carolina Resource Center, which recounted interviews with several jurors. According to Ms. Adcock, in a February 25, 1995 interview, Juror Weddington stated that “a juror named ‘Hollie’ brought a Bible into the jury room and read from it” and that “Hollie also talked to her pastor during the case.” J.A. 1902. Additionally, Ms. Adcock’s affidavit explains that in a separate February 25, 1995 interview, Juror Wanda Allen (“Juror Allen”) “recalled discussions about the fact that one of the jurors had brought in a [B]ible and had talked with her pastor.” Id.
Relying on this new information, Barnes contended that there was juror misconduct during the sentencing phase of his trial. On March 19, 2007, the MAR Court held an evidentiary hearing on some, but not all, of the claims raised in Barnes’ MAR. Importantly, the MAR Court did not conduct an evidentiary hearing on Barnes’ juror misconduct claim.
Instead, the MAR Court “summarily denied” the juror misconduct claim, holding
D.
On April 17, 2008, Barnes filed a Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Middle District of North Carolina. Just as he did in his MAR, Barnes raised a number of challenges to his conviction and sentence, including juror misconduct during his sentencing. On February 3, 2012, a United States Magistrate Judge issued a report and recommendation, recommending that all claims in the petition be denied. Barnes v. Branker, 1:08-CV-271,
II.
A.
“We review de novo the district court’s application of the standards of 28
A state court’s decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law,” or if it reaches a different result than the Supreme Court previously reached on a materially indistinguishable set of facts. Williams v. Taylor,
Under the unreasonable application clause of § 2254(d)(1), we look to whether the state court’s application of law was “objectively unreasonable” and not simply whether the state court applied the
B.
Even if we conclude that the state court’s adjudication was contrary to, or an unreasonable application of, clearly established federal law, our inquiry is not over. As we have observed, “ ‘most constitutional errors can be harmless.’ ” Bauberger v. Haynes,
III.
Barnes argues that under the Sixth and Fourteenth Amendments to the United States Constitution, he was deprived of his right to an impartial jury at his capital sentencing because at least one juror improperly communicated with her pastor and relayed the information obtained from her pastor to the rest of the jury. As a result, Barnes contends that the jury considered extraneous information that the parties did not introduce at trial. Relying on the Supreme Court’s decision in Remmer v. United States,
The State counters by first arguing that there is no clearly established federal law applicable to the situation presented in the instant case. Thus, according to the State, the MAR Court’s adjudication of Barnes’ juror misconduct claim necessarily could not have been contrary to, or an unreasonable application of, clearly established federal law. The State next argues that even if there is clearly established federal law applicable here, the MAR Court did not unreasonably apply such law because the communication between the juror and her pastor was not “about the matter pending
In light of our review under AEDPA, as well as the parties’ arguments summarized above, we must address the following three issues: (1) whether there was clearly established federal law governing Barnes’ juror misconduct claim at the time of the MAR Court’s adjudication; (2) if so, whether the MAR Court acted contrary to this clearly established law, or applied it unreasonably, in failing to order a hearing or apply a presumption of prejudice after Barnes presented allegations that a juror communicated with her pastor about the death penalty during Barnes’ sentencing; and (3) whether this error had a substantial and injurious effect on Barnes’ sentencing. See Hall v. Zenk,
A.
Clearly Established Federal Law
The Sixth and Fourteenth Amendments to the United States Constitution guarantee a criminal defendant the right to a trial by an impartial jury. See U.S. Const, amend. VI; Irvin v. Dowd,
It is clearly established under Supreme Court precedent that an external influence affecting a jury’s deliberations violates a criminal defendant’s right to an impartial jury. See, e.g., Parker v. Gladden,
1.
In light of these significant constitutional concerns, the Supreme Court in Remmer created a rebuttable presumption of prejudice applying to communications or contact between a third party and a juror concerning the matter pending before the jury. Remmer,
In Remmer, a juror reported to the district judge that an unnamed third party suggested to the juror that he could profit by returning a defense verdict.
The defendant appealed to the Supreme Court, which vacated the Ninth Circuit’s judgment and remanded the case for a hearing. Remmer,
The Court further noted that when allegations of juror partiality come to light, “[t]he trial court should not decide and take final action ex parte on information such as was received in this case.” Remmer,
Thus, Remmer clearly established not only a presumption of prejudice, but also a defendant’s entitlement to an evidentiary hearing, when the defendant presents a credible allegation of communications or contact between a third party and a juror concerning the matter pending before the jury. We proceed to discuss each of these aspects of Remmer in turn.
a.
With respect to the presumption of prejudice, we have recently observed, “there is a split among the circuits regarding whether the Remmer presumption has survived intact following” the Supreme Court’s decisions in Smith v. Phillips,
Phillips was a habeas corpus appeal in which a sitting juror applied to the state district attorney’s office for a position as an investigator during the pendency of a state court trial.
Olano was a direct appeal in which a district court permitted alternate jurors to be present during jury deliberations in violation of Federal Rule of Criminal Procedure 24(c).
Thus, by necessary implication, we have held that the Remmer presumption is clearly established federal law as defined by AEDPA even after the Supreme Court’s decisions in Phillips and Olano. The State has not asked us to reconsider our position, and we will therefore continue to deem the Remmer presumption “clearly established federal law” here. See Marshall v. Rodgers, — U.S. -,
b.
We also recognize that Remmer established a separate, but related requirement that a defendant be entitled to a hearing when the defendant presents a credible allegation of communications or contact between a third party and a juror concerning the matter pending before the jury. See Haley v. Blue Ridge Transfer Co.,
Post -Remmer Supreme Court case law has confirmed that due process requires a hearing to alleviate concerns of juror partiality. In Phillips, the Court explained that it “has long held that the remedy for allegations of juror partiality is a hearing
The requirement that a trial court conduct a hearing to determine juror partiality is rooted in the Constitution:
Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Such determinations may properly be made at a hearing like that ordered in Remmer and held in this case.
Phillips,
2.
Of course, not every allegation of an unauthorized communication between a juror and a third party will trigger the Remmer presumption and its corresponding hearing requirement. See Haley,
Stated differently, the Remmer presumption and hearing requirement are triggered after the party attacking the verdict satisfies the “minimal standard” of showing that “extrajudicial communications or contacts [between a juror and a third party] were more than innocuous interventions.” United States v. Cheek,
Extrajudicial communications or contact with a juror has been deemed to trigger Remmer in a variety of circumstances, including: a juror being offered a bribe during trial and subsequently being investigated by an FBI agent, Remmer,
Importantly, each of the illustrations above dealt with external influences on jury deliberations. See Wolfe,
3.
In the face of this clearly established Supreme Court precedent available to guide a state court’s adjudication of a claim of external influences on a jury’s deliberations, the State nonetheless asserts that because the Supreme Court’s decisions evaluating external influences on a jury’s deliberations involved different factual circumstances than those presented by Barnes, the Supreme Court “has given state courts little to no guidance” in adjudicating such claims. Appellee Br. 21-22. It is, therefore, the State’s position that the MAR Court’s adjudication in this case could not have been an unreasonable application of clearly established federal law. The State is incorrect.
Indeed, Remmer and its progeny clearly established that a presumption of prejudice must be applied, and that a hearing must be held, when a defendant presents a genuine allegation of communication or contact between a third party and a juror concerning the matter pending before the jury. There is no requirement under AEDPA that a habeas petitioner present facts identical to those previously considered by the Supreme Court to be entitled to relief. Panetti v. Quarterman,
Our § 2254 review of Barnes’ juror misconduct claim is therefore guided by Remmer and the other clearly established Supreme Court precedent described above concerning third party communications with jurors.
B.
Unreasonable Application of Clearly Established Federal Law
Having identified the clearly established federal law governing Barnes’ juror misconduct claim, we must now determine whether the MAR Court acted contrary to this clearly established law, or applied it unreasonably, in failing to order a hearing and failing to apply a presumption of prejudice after Barnes presented allegations that a juror communicated with her pastor about the death penalty during Barnes’ capital sentencing. In view of the evidence presented to the MAR Court, we conclude that its adjudication of Barnes’ juror misconduct claim amounted to an unreasonable application of clearly established federal law.
Immediately after the jury recommended that Barnes be sentenced to death, the trial court was alerted to the fact that one of the jurors “called a member of the clergy, perhaps a relative of hers, to ask about a particular question as to the death penalty.” J.A. 1602. In response to the trial judge’s inquiry regarding whether the juror “discussed the particular facts of this case with anybody outside the jury,” defense counsel stated that there was “[n]o evidence that they did or did not as far as the conversation with the minister is concerned.” Id. Because defense counsel could not point to any such evidence at that time, the trial court “den[ied] the request to start questioning [the] jury about what may or may not have taken place during their deliberations of this trial.” Id. at 1602-03.
Barnes provided additional details concerning the juror’s communication with her pastor to the MAR Court. In his MAR, Barnes presented allegations that one or more jurors were bothered by a closing argument made during Barnes’ capital sentencing hearing. The closing argument in question was made by a co-defendant’s attorney, in which he suggested that if the jury returned a sentence of death, the jurors would one day face God’s judgment for their actions. According to Juror Peacock, the closing argument “made the jury furious.” J.A. 1900. Moreover, Juror Jordan noticed “that another juror, a female, seemed visibly upset by the argument.” Id. at 1898. In response, Juror Jordan contacted her pastor, Pastor Lomax, and “discussed the lawyer’s argument” with him. Id. at 1892. During their conversation, Pastor Lomax “told [Juror] Jordan about another biblical passage which contradicted the passage relied upon by the defense attorney.” Id. Two other jurors remembered that a juror talked to her pastor during the case. In particular, Juror Weddington stated that “a juror named ‘Hollie’ brought a Bible into the jury room and read from it” and that “Hollie also talked to her pastor during the case.” Id. at 1902. Additionally, Juror Allen “recalled discussions about the fact that one of the jurors had brought in a [B]ible and had talked with her pastor.” Id.
Barnes presented further evidence to the MAR Court that Juror Jordan brought her Bible into the jury deliberation room and “read the passage suggested to her by [Pastor] Lomax to all of the jurors.” J.A. 1892. Although Juror Jordan recalled that the passage stated “that it [was] the duty of Christians to abide by the laws of the state,” id. at 1898, Juror Peacock stated that the passage “dealt with life and death,” id. at 1893. In addition, Juror Weddington observed, “[t]he person who brought in the Bible read a passage to a juror who was having a hard time with the death penalty.” Id. at 1892-93.
2.
After being presented with the allegations described above, the MAR Court failed to apply Remmer or any reasonable version of it. As we have explained, Remmer imposes not only a presumption of prejudice, but also entitles the defendant to an evidentiary hearing when the defendant presents allegations of an extraneous influence on the jury — that is, communications or contact between a third party and a juror concerning the matter pending before the jury. Remmer,
An unauthorized contact between a third party and a juror concerns the matter pending before the jury when it is “of such a character as to reasonably draw into question the integrity of the verdict.” Stockton,
The MAR Court greatly distorted Barnes’ burden, requiring much more of Barnes than a threshold or minimal showing of potential juror bias. Instead, to demonstrate an entitlement to a hearing, the MAR Court required Barnes to present evidence that a juror was actually biased and that Barnes was therefore actually prejudiced by the unauthorized communication. After concluding that Barnes’ new evidence “adds nothing to the issue as it was presented during [his] original appeal,” J.A. 1883, the MAR Court incorporated the North Carolina Supreme Court’s reasoning from the direct appeal, which denied Barnes’ request for a hearing because “[t]here is no evidence that the content of any such possible discussion prejudiced [Barnes],” State v. Barnes,
The district court’s conclusion that Juror Jordon’s conversation with Pastor Lomax did not reasonably draw into question the integrity of the verdict is similarly flawed. In the district court’s view, Barnes’ allegations simply demonstrated that Pastor Lo-max directed Juror Jordan “to a portion of the Bible in response to a defense argument that was most assuredly not before the jury — i.e., whether God would condemn a juror who voted to impose a death sentence.” Barnes v. Lassiter, 1:08-CV-00271,
Our dissenting colleague characterizes this analysis as “conclud[ing] that the communication alleged here satisfies Remmer because ‘the spiritual or moral implications of deciding whether to impose death ‘clearly’ related to ‘the matter pending before the jury.’ ” Post at 260. The dissenting opinion misconstrues the point. Given a jury’s role during the sentencing phase of a capital case, “the matter pending before the jury” is to determine whether or not the defendant ought to receive the death penalty. See Caldwell v. Mississippi
After hearing the argument, Juror Jordan contacted her pastor and “discussed the lawyer’s argument” with him. J.A. 1892. During their conversation, the pastor “told [Juror] Jordan about another biblical passage which contradicted the passage relied upon by the defense attorney.” Id. We need look no further than these allegations to conclude that Juror Jordan’s conversation with a third party about defense counsel’s argument, which asked the jury to return a sentence of life imprisonment instead of death, bore on the jury’s sentencing determination and was, therefore, “about the matter pending before the jury.” To conclude otherwise would not simply be incorrect or erroneous; it would be objectively unreasonable.
The Supreme Court has cautioned, “[t]he integrity of jury proceedings must not be jeopardized by unauthorized invasions.” Remmer,
The district court concluded, however, that a hearing in state court was not necessary because the “North Carolina courts accepted ... Barnes’ claims as true when they assessed whether he had raised a constitutional claim warranting relief and determined that he had not.” Barnes,
3.
The State nevertheless argues that the MAR Court did not unreasonably apply clearly established federal law because our court has previously determined, on § 2254 review, that it was not unreasonable for a state court to conclude that the presence of a Bible in the jury room was not an extraneous prejudicial influence on a jury’s verdict. Our “Bible in the jury room” line of cases, however, is readily distinguishable. In Robinson, for example, a juror asked the bailiff for a Bible and subsequently read several passages out loud in the jury room — including at least one referring to “an eye for an eye” — to convince the other jurors to vote for a death sentence.
The fact that the bailiff provided the Bible to the juror does not alter our conclusion that it was not an external influence. Robinson does not allege that the bailiff instructed the jury to consult the Bible, or, for that matter, that he did anything other than simply provide the Bible upon the juror’s request. On these facts, the MAR court reasonably could have concluded that the bailiffs act of providing a Bible was nothing more than an innocuous intervention into the jury’s deliberations.
Id. at 366.
Despite the State’s arguments to the contrary, the only similarity between the instant case and the “Bible in the jury room” line of cases is the Bible itself. Unlike in Robinson, where the juror in question was simply given a Bible and read from it in the jury room, Barnes has alleged that Juror Jordan was actually directed to a specific biblical passage by her pastor in response to an argument about the death penalty and that other jurors were aware that Juror Jordan had consulted her pastor in this regard. We alluded that Robinson might have been a different case if the bailiff had “instructed the jury to consult the Bible” or done “anything other than simply provide the Bible upon the juror’s request.”
C.
Substantial and Injurious Effect or Influence
Despite our conclusion that the MAR Court’s adjudication of Barnes’ juror misconduct claim was an unreasonable application of clearly established federal law, “we are not permitted to grant habeas relief unless we are convinced that the error had a ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Fullwood,
In the district court’s assessment, Barnes’ allegations failed to demonstrate that Juror Jordan’s contact with Pastor Lomax had a substantial and injurious effect or influence on the jury’s verdict. This conclusion, however, was based on the district court’s erroneous holding that the MAR Court did not unreasonably apply clearly established federal law in denying Barnes a presumption of prejudice and a Remmer hearing. Moreover, given the state court’s complete failure to investigate Barnes’ juror misconduct claim, the district court had no basis from which to determine whether Juror Jordan’s communication with her pastor was harmless.
Based on the record before us, it is unclear whether Barnes can demonstrate actual prejudice or whether the MAR Court’s unreasonable application of federal law was harmless. See Fullwood,
As the Seventh Circuit has recently explained, “[t]he Remmer presumption is meant to protect against the potential Sixth Amendment harms of extraneous information reaching the jury, but a state court’s failure to apply the presumption only results in actual prejudice if the jury’s verdict was tainted by such information.” Hall,
IV.
Pursuant to the foregoing, the judgment of the district court is reversed, and this matter is remanded to the district court for an evidentiary hearing to determine whether the state court’s failure to apply the Remmer presumption and its failure to investigate Barnes’ allegations of juror misconduct in a hearing had a substantial and injurious effect or influence on the jury’s verdict.
REVERSED AND REMANDED
Notes
. The Supreme Court of North Carolina summarized the facts underlying Barnes' conviction in its opinion denying Barnes relief on direct appeal. See State v. Barnes,
. Citations to the "J.A.” refer to the Joint Appendix filed by the parties in this appeal.
. A MAR is North Carolina's procedural mechanism for state post-conviction review. See N.C. Gen.Stat. §§ 15A-1401, 1411. Although a "MAR is not identical to a habeas corpus petition, ... it provides an avenue to obtain [post-conviction] relief from ‘errors committed in criminal trials.’ " Conaway v. Polk,
. For simplicity, we refer to the most current version as the "MAR.”
. For purposes of Barnes' habeas petition, we assume the truth of the factual allegations contained in his evidentiary affidavits presented to the MAR Court. See Robinson v. Polk,
.On June 1, 2000, Juror Jordan signed the bottom of the Interview Summary, acknowledging, "[t]he summary is an accurate description of what [she] said to Janine Crawley and Alexander McCoy [members of Barnes' direct appeal team] on May 31, 1995.” J.A. 1898.
. Pursuant to North Carolina law, a claim is "procedurally barred” for purposes of MAR review if, among other things, "[t]he ground or issue underlying the motion was previously determined on the merits upon an appeal from the judgment or upon a previous motion or proceeding in the courts of this State or a federal court.” N.C. Gen.Stat. § 15A-1419 (a)(2). As we have recognized, "[ajlthough North Carolina courts refer to the subsection 15A-1419(a)(2) bar as a 'procedural bar' for purposes of reviewing a state court defendant's MAR, it is not a state procedural bar for purposes of federal habeas review.” Brown v. Lee,
. In his Opening Brief, Barnes requested an additional COA from this Court, seeking consideration of a claim relating to a Batson violation. See Batson v. Kentucky,
. Barnes argued in the district court that the MAR Court “failed to adjudicate the merits of [his] properly presented claim and, thus, [the district court] must review [his claim] de novo.” J.A. 2135 n.7. However, as the district court correctly concluded, the MAR Court did in fact adjudicate the merits of Barnes’ juror misconduct claim. Indeed, the MAR Court concluded that the claim was “procedurally barred and without merit” because it "was presented in [his] direct appeal ... and was directly addressed by the Supreme Court of North Carolina and rejected by that court.” Id. at 1882-83. With respect to Barnes' new evidence, the MAR Court noted that it "add[ed] nothing to the issue as it was presented during [Barnes’] original appeal.” Id. at 1883. The MAR Court therefore incorporated the "same analysis inherent in [the direct appeal]” to the new evidence. Id. This was an adjudication on the merits, though it was done summarily and by incorporating the Supreme Court of North Carolina's earlier analysis. See Bell v. Jarvis,
. We may also grant relief if the state court adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Subsection (d)(2) is not implicated in this appeal.
. As we have observed, the rules of evidence “make it difficult for either party to offer direct proof of the impact that an improper contact may have had on the deliberations of the jury." Stockton,
. See also United States v. Sandalis,
. Whether the Remmer presumption has been altered or diminished by Phillips and Olano, as described above, does not affect our conclusion that the Remmer hearing requirement is clearly established federal law. In Phillips, the Supreme Court actually reinforced the hearing requirement as an independent remedy, explaining that the "Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.” Id. at 215,
. For his part, Pastor Lomax "could not recall the conversation recounted by [Juror] Jordan.” J.A. 1893. He stated, however, "that it [was] possible that he did talk to [Juror Jordan] about the death penalty while she was a juror, but he simply does not remember it.” Id.
. As we have previously noted, Stockton was a 28 U.S.C. § 2254 case in which we applied Remmer. See Fullwood,
. The dissent suggests that "it would not be ‘objectively unreasonable’ for the state court to limit the scope of 'the matter pending before the jury’ to communication or contact suggesting how the juror should vote in a particular case.” Post at 261. In the dissent’s view, "[t]he North Carolina state MAR [CJourt could reasonably conclude that the type of communication at issue here did not constitute contact 'about the matter pending before the jury’ because it was not directed to the choice of sentence, life in prison or death, that the jury was ultimately charged to determine.” Id. at 262. We could not disagree more. Indeed, Barnes' allegations satisfy even this arguably more stringent standard offered by the dissent. The alleged conversation at issue here was prompted by a defense argument concerning the consequences for a juror who votes to impose a death sentence for Barnes and his codefendants. Juror Jordan and Pastor Lomax "discussed the [defense] lawyer’s argument,” and Pastor Lomax "told [Juror] Jordan about another biblical passage which contradicted the passage relied upon by the defense attorney.” J.A. 1892. Thus, Pastor Lomax’s communication bore
Dissenting Opinion
dissenting:
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits when a federal court may grant habeas relief to a state prisoner. 28 U.S.C. § 2254(d). The majority agrees with Barnes that the North Carolina state courts’ adjudication of his claim satisfies AEDPA’s requirements because it unreasonably applied Remmer v. United States,
I.
AEDPA — which requires federal courts to give deference to state court adjudications in close cases involving uncertain Supreme Court precedent — dictates the proper outcome in this case. See Mitchell v. Esparza,
A.
Recent Supreme Court opinions addressing § 2254 unfailingly and repeatedly impress upon circuit courts of appeals “the substantial deference that AEDPA requires” federal courts to give to state court adjudications of state prisoner claims. White v. Woodall,
A state court’s decision is an “unreasonable application of’ Supreme Court case law if the state court “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Williams,
AEDPA deference to state court decisions means that “a federal habeas court may overturn a state court’s application of clearly established federal law only if it is so erroneous that ‘there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court’s precedents.’” Jackson,
B.
Through the applicable AEDPA lens, then, I consider the North Carolina courts’ decisions denying Barnes a presumption of prejudice or an evidentiary hearing in light of his allegation that a juror communicated with her pastor during sentencing deliberations. This inquiry entails examining the context and nature of Barnes’ allegations as well as the applicable Supreme Court precedent.
During closing arguments for the sentencing phase of Barnes and his co-defendants’ trial, one co-defendant’s attorney told any “true believers” on the jury that “all of us will stand in judgment [before God] one day.” The attorney urged the jurors to consider their judgment day before God and whether God would praise them for not violating His commands— including “Thou shalt not kill” — even if the state authorized sentencing a person to death. (J.A. 1532-33.) The defense argument about the eternal consequences to the jury’s decision left several jurors visibly affected and, in one juror’s words, “furious.” (J.A. 1900.) For reasons unexplained in the record and only speculated to during oral argument, the prosecution did not object to this argument.
Following the jury’s deliberations and recommendation that Barnes be sentenced to death, Barnes’ attorney informed the trial court that he had been apprised that one juror had spoken to “a member of the clergy” during the trial “about a particular question as to the death penalty.” (J.A. 1602.) Because Barnes had no evidence that the juror discussed “the particular facts of this case with anybody outside the jury,” the trial court did not allow the jurors to be questioned about this incident and denied Barnes’ motion for a new trial. (J.A. 1602-03.)
Barnes argued on direct appeal that the trial court abused its discretion by denying his motion and not investigating this allegation of juror misconduct. The North Carolina Supreme Court assumed that Barnes’ allegations regarding third-party contact were true, but concluded that the trial court had not abused its discretion when confronted by a “mere unsubstantiated allegation” that did not call into question “the fairness or impartiality of the juror.” (J.A. 1854-55.) In particular, the North Carolina Supreme Court noted the absence of evidence that the communication “prejudiced [Barnes] or that the juror gained access to improper or prejudicial matters and considered them with regard to this case.” (J.A. 1855.)
When filing his North Carolina Motion for Appropriate Relief (“MAR”), Barnes attached several affidavits and an interview summary purporting to support his claim of “juror misconduct and extraneous influences on the jury.” (J.A. 1882.) An
Several other jurors recalled that one or more jurors read from the Bible during the course of the jury’s deliberations. None of the jurors could remember the verses read, but some of them recalled that they at least in part related to the co-defendant’s attorney’s troubling closing argument, and “dealt with life and death.”, A few jurors also recalled that a juror had talked to her pastor during the proceedings. (J.A. 1892-93,1900,1902-03.)
The North Carolina MAR court denied Barnes’ claims as “proeedurally barred and without merit,” explaining that the evidence acquired after the direct appeal did not alter the nature of Barnes’ claims, which were “subject to the same analysis inherent in the [North Carolina Supreme Court’s] decision.” (J.A. 1883.)
Barnes thereafter timely filed a § 2254 petition for a writ of habeas corpus in the U.S. District Court for the Middle District of North Carolina. Relevant to this appeal, Barnes once again alleged that juror misconduct during the sentencing deliberations violated his due process rights. Specifically, he asserted that a juror improperly asked her pastor for advice “about the biblical correctness of a defense closing argument” (J.A. 1631), that the juror then improperly tainted the jury deliberation by reading Bible verses to other jurors, and that the state court erred by not granting Barnes a presumption of prejudice or conducting an evidentiary hearing to establish the prejudicial effect of these incidents. (J.A. 1627-40.) The district court denied Barnes’ petition, but granted a certificate of appealability “with respect to the issue whether a juror’s contact with her pastor violated [his] Sixth Amendment right to a fair trial.” (J.A. 2181.)
C.
Barnes alleges, as he did below, that the state courts unreasonably applied Supreme
The Sixth Amendment’s due process right to a jury trial encompasses being tried “by a panel of impartial, indifferent jurors.” Turner v. Louisiana,
Barnes’ allegations fall within two overlapping sets of Supreme Court cases related to this narrow exception: those dealing with third-party contact during a trial and those dealing with juror misconduct during a trial. See Smith v. Phillips,
The cornerstone of Barnes’ argument rests on Remmer, in which the Supreme Court considered what due process required when Remmer alleged an improper external influence on a juror arising from a third-party telling the juror he “could profit by bringing in a verdict favorable to” one party.
In a criminal case, any private communication, contact, or tampering, directly or indirectly with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.
Id. The Supreme Court observed that the record before it did not reflect “what actually transpired, or whether the incidents that may have occurred were harmful or harmless,” so a hearing was necessary. Id. It vacated the lower court’s judgment and remanded the case to the district court for a hearing. Id. at 230,
In Parker v. Gladden,
In Turner v. Louisiana,
even if it could be assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution. We deal here not with a brief encounter, but with a continuous and intimate association throughout a three-day trial — an association which gave these witnesses an opportunity ... to renew old friendships and make new acquaintances among the members of the jury.
Id. at 473,
Most recently, in Smith v. Phillips,
While Barnes’ argument regarding “clearly established Supreme Court” case law rests on Remmer, each of the above Supreme Court cases informs how that precedent has been applied and how a court should assess allegations of juror misconduct or third-party influence during a trial. I agree with the majority that Remmer is clearly established Supreme Court precedent, but after reviewing Barnes’ claims under the AEDPA standards of review, I conclude that the North Carolina state courts did not unreasonably apply Remmer.
D.
Analyzing Remmer’s applicability to the case at bar requires first looking to what the Supreme Court set forth as the component parts of its rule, that being: “In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptive prejudicial” except under circumstances not relevant here.
As the majority opinion correctly recognizes, not every third-party contact impli
Significantly, neither Remmer nor any subsequent Supreme Court case has elaborated on when interaction between a juror and third party is “about the matter pending before the jury.” An area undefined by the Supreme Court thus exists between the general principle espoused in Remmer and acceptable interpretations — including limitations — of it. Rather than calling those parameters into question in the first instance, under AEDPA, the Court may only grant relief if the state courts’ conclusion that Barnes’ allegations fell outside Remmer’s scope was “unreasonable.” And in examining that question, AEDPA does not permit this Court to equate a conclusion that the state’s application of Remmer is incorrect to its being unreasonable. See, e.g., Jackson,
The majority opinion concludes that the communication alleged here satisfies Remmer because “the spiritual or moral implications of’ deciding whether to impose death “clearly” related to “the matter pending before the jury.” Maj. Op. at 249. However, it offers no substantive basis for this conclusion grounded in Supreme Court precedent, nor does it grapple with arguments or theories that could have supported the state court’s decision to the contrary. In so doing, the majority opinion treats the issue before us as if it were here on direct appeal from the trial court and not a § 2254 petition constrained by AEDPA. The majority opinion thus fails to undertake the appropriate review under AEDPA, see Harrington,
To determine what constraints Remmer posed generally — and specifically what reasonable interpretations of “the matter pending before the jury” might exist — -I return to the controlling Supreme Court case law, beginning with Remmer. When that case returned to the Supreme Court, the Supreme Court explained that the earlier remand for an evidentiary hearing had been necessary because of “the paucity of
The majority correctly posits that a state court may unreasonably apply Supreme Court precedent even where the Supreme Court has not issued an opinion involving a nearly identical fact pattern. See Maj. Op. at 246. Federal courts can grant habeas relief when state court adjudications are either “contrary to” or “unreasonable applieation[s] of’ clearly established Supreme Court precedent, § 2254(d)(1). The point, however, is that to prevail under § 2254, a petitioner must show more than just the misapplication of Supreme Court precedent or an erroneous decision. As set out earlier, AEDPA mandates a much higher bar, and where the Supreme Court has not spoken on a particular aspect of a claim, more room exists for a state court’s adjudication of the claim to be reasonable. See, e.g., White,
Returning to the actual allegations contained in Barnes’ affidavits,
Numerous times throughout his § 2254 petition Barnes acknowledges that it is this issue — not the jury’s choice of the appropriate sentence — which was the subject of the third-party contact. E.g., J.A. 1627 (“[A]n attorney for one of the codefendants told the jury that sentencing a defendant to death would violate God’s law and, perhaps, subject the jurors to judgment one day. In response to this argument, one of the jurors ... telephoned] her pastor and [sought] his advice about this argument. He referred her to a biblical passage that he claimed refuted the argument.” (emphasis added)); 1629 (“[A] lawyer argued the jurors might themselves be judged by God if they returned a sentence of death.... In response to this argument, [a juror] contacted her pastor ... and discussed it. [The pastor] gave her a biblical passage that he felt responded to the argument.” (emphasis added)); 1631 (“[A] sitting juror ... call[ed] her pastor during the sentencing deliberations and asked his advice about the biblical correctness of a defense closing argument. The pastor referred her to a passage [he] claimed refuted the argument.” (emphasis added)). While Barnes also speculates and theorizes as to how the conversation impacted the deliberative process, he reaches far beyond the scope of the evidence before the state MAR court at the time it reviewed his claim in so doing. E.g., J.A. 1633-34 (asserting, among other things, that the pastor provided his view on the biblical support for the death penalty and gave the juror the “green light” to vote for death).
The North Carolina state MAR court could reasonably conclude that the type of communication at issue here did not constitute contact “about the matter pending before the jury” because it was not directed to the choice of sentence, life in prison or death, that the jury was ultimately charged to determine. And Barnes’ allegations can fairly be read as asserting that the juror and her pastor conversed about the religious implications of serving on a jury, or even serving on a jury in a capital case, but not about the appropriateness of any specific sentencing choice that the jury was charged to make regarding Barnes. Therefore, a fair-minded jurist could conclude that this type of communication was
In a similar vein, it would be objectively reasonable to view the “matter pending before the jury” as the state trial court’s charge to the jurors to determine whether the appropriate sentence for Barnes under North Carolina law was life imprisonment or the death penalty. At no time did the state trial court charge jurors with deciding the eternal consequences to their soul that they could face as a result of following the court’s instructions in making their sentencing decision. The provocative closing argument of Barnes’ co-defendant did not alter “the matter” actually before the jury as instructed by the state trial court. Moreover, as the district court noted, the communication Barnes’ affidavits allege to have occurred “expressed no opinion on the propriety of the death penalty and simply indicated that a Christian has a duty to follow the laws of the state, which, in the case of North Carolina, permitted a jury, in its discretion, to recommend that a convicted murderer like Barnes serve life in prison or be put to death[.]” Dist. Ct. Op. at J.A. 2143-44. Consequently, fair minded jurists can disagree as to whether the contact alleged in this case falls within Remmer’s scope of contacts and communication “about a matter pending before the jury.” As such, I do not believe that Barnes can point to Remmer’s own parameters to satisfy his burden under AEDPA.
Lastly, Smith — the only of these cases directly relying on Remmer — also involved an entirely different potential influence on a juror’s decision making than that at issue here. The petitioner in Smith alleged that a juror was implicitly biased because he had submitted an employment application with the prosecutor’s office during the trial. Relevant to this case, Smith reiterated that the due process concern was in maintaining “a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.”
In short, none of these cases alters the basic proposition contained in Remmer regarding what sort of communication comprises “the matter pending before the jury.” For these reasons, I conclude that the North Carolina state courts could reasonably conclude that the communication alleged here was not “about the matter pending before the jury” such that it triggered Remmer’s presumption of prejudice. And because the state courts could reasonably conclude that the Remmer presumption did not apply to Barnes’ claims, they did not err in denying him an evidentiary hearing.
E.
I believe the majority’s analysis with respect to Barnes’ evidentiary hearing claim suffers from other analytical errors as well. The majority concludes that the state courts “greatly distorted Barnes’ burden, requiring” him to “present evidence that a juror was actually biased and that Barnes was therefore actually preju
First, the state MAR court did not mention prejudice in its brief analysis of this issue. Instead, it concluded that the issue was procedurally barred and lacked merit because Barnes’ new evidence “add[ed] nothing to the issue as it was presented during [his] original appeal, and the allegations are subject to the same analysis inherent in that decision.” (J.A. 1888.) The state MAR court did not require more of Barnes than Remmer demands, nor did it distort the appropriate analysis.
To the extent it adopted the North Carolina State Court’s view, that court’s statements regarding the lack of prejudice flowed directly from its view of the nature of the communication alleged to have occurred. See J.A. 1854-55; 1882-83.
To that end, this Court has previously recognized that it is the petitioner’s initial burden to show prejudicial contact in considering whether Remmer’s presumption of prejudice has been triggered. See Blauvelt,
Even more fundamentally, though, under AEDPA, we are not constrained by the state courts’ rationale in assessing whether its holding should nonetheless be upheld. Indeed, the state courts’ decision need not provide any statement of reasons to nonetheless create a presumption that a claim was “adjudicated on the merits” and thus subject to § 2254(d) review. Harrington,
In order for Barnes to prevail, it is not enough for the majority to conclude that the state courts’ analysis erred in considering Barnes’ burden as to prejudice. Rather, the majority needed to consider whether any reading of the record and Remmer could support the decision to deny a presumption of prejudice and evidentiary hearing, even if the state courts’ stated rationale was inadequate or flawed. See Harrington,
II.
For the reasons set forth above, I conclude that “fairminded jurists could disagree” as to whether the communication Barnes alleges to have occurred constituted juror contact with a third party “about a matter pending before the jury.” Neither Remmer nor any subsequent Supreme Court case has explored the applicability of the Remmer presumption to allegations that a juror’s conversation with a third party did not directly bear upon how the juror would vote. Given that Remmer expressed only a general principle, and the Supreme Court has recognized that “[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations,” Harrington,
If this case was before the Court on a direct appeal, a different analysis would be required to determine whether Barnes could be entitled to any relief under Remmer. But that is not the posture of the case before the Court, and our review under AEDPA is only whether the North Carolina state courts could reasonably conclude that Remmer did not require either a presumption of prejudice or an evidentiary hearing. Given the ambiguities in interpreting what constitutes a “matter pending before the jury” and a reasonable basis for distinguishing the applicable Supreme Court precedent, we are constrained by AEDPA. See Mitchell,
Because I would hold that the North Carolina state courts did not unreasonably apply Remmer by concluding that the contact alleged in Barnes’ affidavits did not trigger a presumption of prejudice, I would affirm the district court’s denial of Barnes’ § 2254 petition. Accordingly, I respectfully dissent.
. Barnes relies on the "unreasonable application of” component of § 2254(d)(1) rather than the "contrary to” component.
. As the majority opinion notes, a state court's adjudication on the merits “need not cite or even be aware of [Supreme Court] cases” or explain its rationale for this Court to be owed deference under § 2254(d). Harrington,
. Juror Jordan's pastor did not recall conversing with Ms. Jordan, but admitted it was possible that he had done so and "simply [did] not remember it.” (J.A. 1893.)
. Barnes continues to press the impropriety of reading the Bible during deliberations inasmuch as he alleges that the juror communicated information originally given to her from her pastor to the jury. To the extent that reading the Bible during deliberations would present a separate claim of juror misconduct, that claim is not properly before this Court. Moreover, the analysis for the juror contact claim turns on the conversation alleged to have occurred between the juror and her pastor, not on what the juror did thereafter. If that communication did not trigger Remmer, then nothing the juror did thereafter would present a different claim than the separate, "reading the Bible during deliberations” claim for which Barnes has not been issued a COA.
. North Carolina Rule of Evidence 606(b) mirrors the federal exception. See N.C. Gen. Stat. § 8C-1, Rule 606(b).
. Allegations of juror misconduct are further broken down into those alleging extraneous juror misconduct and those alleging internal juror misconduct. Although the line between these two types of misconduct is not always clear, the distinction creates important consequences when analyzing a petitioner's claim in light of the applicable evidentiary rules. See Tanner,
Because Barnes’ claim is now limited to the juror's conversation with her pastor — as opposed to a juror reading the Bible during deliberations — the analysis focuses on precedent relating to extraneous juror misconduct. Cf Robinson v. Polk,
. Federal Rule of Evidence 606(b) states:
During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror’s statement on these matters.
There are three exceptions, permitting jurors to testify about whether "extraneous prejudicial information was improperly brought to the jury’s attention”; "an outside influence was improperly brought to bear on any juror”; or "a mistake was made in entering the verdict on the verdict form.”
. I note that the relevant cross-reference should be to the allegations contained in the affidavits because at times Barnes’ briefs on appeal allege a much broader third-party communication than can be reasonably inferred from the contents of the affidavits or his § 2254 petition. At times the majority makes this same error.
For this reason, too, the majority is mistaken in opining that the dissent is "focus[ing] not on what is alleged by Barnes, but rather on what is missing from his allegations.” Maj. Op. at 250. As detailed above, Barnes' affidavits simply do not allege what either Barnes or the majority now claim that they do, and that point is made plain by looking to the actual allegations in those affidavits. What is missing from the affidavits simply highlights the dichotomy between what they do contain and other types of allegations that might bring the claim within Remmer's scope.
. The rest of Barnes’ affidavits merely allege that the juror talked to her pastor (without alleging anything about what the conversation was about) or that jurors read from the Bible during jury deliberations. (J.A. 1892-1903; see also Dist. Ct. Op. at J.A. 2140 n.10.)
With respect to the former, the state court was not obliged to conclude that mere contact with the pastor — absent some attendant factual allegation that it involved communication "about the matter pending before the jury”— warranted either a presumption of prejudice or an evidentiary hearing. Indeed, the majority recognizes as much. But we arrive at different conclusions based on our different views of how to approach the state courts’ interpretation of Barnes’ evidence in light of Remmer.
With respect to the jurors reading from the Bible, these allegations are not before the Court as they are not part of the certificate of appealability. To the extent that Barnes alleges further prejudice arising from the juror’s subsequent conversations during deliberations, that would be mere surplusage as improper third-party contact with even one juror would be sufficient to trigger Remmer's presumption, if that contact had otherwise fallen within Remmer's scope.
. The majority opinion posits that because the trial court did not instruct the jurors to disregard the closing argument, it was "squarely presented for the jury's consideration as part of their ultimate sentencing decision.” Maj. Op. at 249. Closing argument is not evidence, however. And while the jury instructions are not part of the joint appendix before this Court, the sentencing trial proceeded in accordance with the then-applicable provisions of N.C. Gen.Stat. § 15A-2000, which delineates specific criteria — based on the evidence presented to the jury — that the jurors are to use in deciding the appropriate sentence. See North Carolina v. Barnes,
. Notably, this Court's precedent would also permit such a reading of Remmer’s "matter pending before the jury” language. In each instance where we have invoked the Remmer presumption following third-party communication with a juror, jurors encountered third parties who expressed their view of a party's culpability or appropriate sentence. E.g., Fullwood v. Lee,
. The North Carolina Supreme Court held that “[t]he trial court was faced with the mere unsubstantiated allegation that a juror called a minister to ask a question about the death penalty. Nothing in this assertion involved ‘extraneous information' as contemplated in our Rule 606(b) or dealt with the fairness or impartiality of the juror. There is no evidence that the content of any such possible discussion prejudiced defendants or that the juror gained access to improper or prejudicial matters and considered them with regard to this case.” (J.A. 1854-55.)