Decided: May 5, 2014
The Fourth Circuit held that the state post-conviction court’s failure to apply a Remmer presumption of prejudice over external juror communication and failure to investigate Barnes’ juror misconduct claim were unreasonable applications of clearly established federal law. The Court remanded the case to determine whether the state court’s failures had a substantial and injurious effect, or influence, on the jury’s verdict.
In 1994, Barnes was convicted of first-degree murder, and sentenced to death. Barnes alleged that, after counsel’s provocative closing argument that a juror’s soul would be damned if the death penalty was recommended, a juror discussed the death penalty with her pastor prior to giving a sentencing recommendation. Barnes later alleged that the juror relayed this discussion to fellow jurors, brought a Bible into the jury room, and read passages suggested by the pastor. The North Carolina Supreme Court held that Barnes failed to prove that the juror’s contact with her pastor prejudiced Barnes, or denied him the right to an impartial jury. Despite new evidence in 1999 that confirmed some of what Barnes alleged, the state post-conviction court denied Barnes’ claim, and adopted the same analysis as the state supreme court because the court was procedurally barred from considering an issue on which the state supreme court had already ruled. Barnes then applied for a Writ of Habeas Corpus in federal court. A federal magistrate judge recommended that all claims be denied, which the district court then adopted. The district court determined that the state court’s application of federal law was valid, but granted Barnes’s a Certificate of Appealability on the issue of whether the external juror communication violated Barnes’s Sixth Amendment right to a fair trial.
The Fourth Circuit began its habeas corpus analysis with the question of whether a state prisoner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Because the Court determined that the decision made by the state court was on the merits, its analysis is constrained by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). After a previous state court rules on the merits, habeas relief may be granted only if the state court’s decision “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A ruling is contrary to clearly established federal law if the state court arrived at a decision that is opposite to the U.S. Supreme Court’s decision on a question of law or if the result is different form a previous U.S. Supreme Court’s decision on materially similar facts. William v. Taylor, 529 U.S. 362, 413 (2000). A ruling is an unreasonable application of clearly established federal law as interpreted by the U.S. Supreme Court when the state court unreasonably applies the law to the facts of the prisoner’s case. Id. at 413. The petitioner has the burden of proving that the state court’s ruling so lacked in justification that the error existed “beyond any possibility for fairminded disagreement.” White v. Woodall, 2014 WL 1612424, at *4 (2014). The state court’s decision is reviewed under an “objectively unreasonable” standard. Robinson v. Polk, 438 F.3d 350, 355 (4th Cir. 2006). Before granting habeas relief, the court must also determine that the error had “a substantial and injurious effect or influence in determining the jury’s verdict,” Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir. 2002), that actually prejudiced the habeas petitioner, Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011).
U.S. Supreme Court precedent clearly establishes that external influences on jury deliberations are a violation of a criminal defendant’s right to an impartial jury. In Remmer v. U.S., the U.S. Supreme Court established a presumption of prejudice against any communications or contact between a third party and a juror on a pending matter, and required an evidentiary hearing to determine if the defendant’s case suffered actual prejudice. 347 U.S. 227 (1954). The Court acknowledged that the Remmer presumption remains good law in the Fourth Circuit, despite a circuit court split. See Smith v. Phillips, 455 U.S. 209 (1982); United States v. Olano, 507 U.S. 725 (1993). The U.S. Supreme Court determined that, though there are cases where an intrusion should be presumed prejudicial, the ultimate inquiry is: “did the intrusion affect the jury’s deliberations and thereby its verdict?” Olano, 507 U.S. at 739. The Fourth Circuit has interpreted this to mean that there can be either a presumption of prejudice, or a specific analysis of the contact or communication on the jury’s verdict. U.S. v. Lawson, 677 F.3d 629 (4th Cir. 2012).
The Fourth Circuit applies the Remmer presumption to direct appeals, and those under § 2254 review. Post-Remmer case law confirms that a constitutional right to due process requires a hearing to ascertain whether contact or communication with a juror in a pending trial is prejudicial to the defendant’s right to a fair trial. Depending on when the issue arises, the hearing can be held during or after trial. Remmer hearings are triggered when the defendant shows unauthorized contact with a juror, and that the integrity of a verdict is reasonably in question. In other words, the contact must be “more than innocuous interventions,” U.S. v. Cheek, 94 F.3d 136, 141 (4th Cir. 1996). Scenarios include bribes to a juror; applications by a juror to the prosecuting attorney’s office during a trial; comments to a juror about what the juror should decide; pressure from the juror’s spouse to decide a certain way; comments by the bailiff about how to decide, or that any incorrect verdict will be corrected by a higher court. AEDPA does not require identical facts to previous U.S. Supreme Court precedent to find clearly established law to guide the court’s decision.
The state court’s adjudication of Barnes’s claim was an unreasonable application of clearly established federal law. Despite additional claims before the state court based on juror testimony that there was contact between a juror and her pastor which led to certain Bible passages being read to jurors who were unsure about the death penalty, the state court essentially required Barnes to prove a Sixth Amendment violation before giving Barnes a Remmer hearing. If Remmer applied this way, then the Remmer hearing requirement, which is meant to determine what, if any, violation actually happened, would be meaningless. The defendant only needed to make a threshold showing that the external contact was more than just an “innocuous intervention” about a matter pending before the jury. The Fourth Circuit reasoned that this was clearly a matter before the jury because the jury was charged with determining whether to give a death sentence.
The Court remanded the decision to the district court to determine whether the state court’s failure to apply Remmer and to investigate whether the external contact had a substantial and injurious effect or influence on the jury’s verdict. The Court noted that, in deciding to grant a habeas petition, Barnes will not be entitled to the Remmer presumption because it does not apply in the federal habeas corpus context, and thus Barnes would need to affirmatively prove actual prejudice by showing that the jury’s verdict was tainted by the extraneous communication between the juror and her pastor.
In the dissent, Judge Agee argued that the majority failed to give proper AEDPA deference to the state court’s adjudication of this matter. In his opinion, AEDPA deference includes not only any reasoning articulated by the state court, but also any arguments or theories that could have supported the state court’s decision. Instead, Judge Agee claimed that the majority disagreed with the state court’s interpretation of Remmer, and inserted the federal court’s interpretation over that of the state court. Ultimately, Judge Agee agreed that the state court reasonably applied Remmer as clearly established precedent, but that the state court’s interpretation was reasonable because no court had determined when a matter was pending before the jury. Thus, the majority should not have addressed the issue in the first instance because the state court’s interpretation was not unreasonable. According to the dissent, the state court could have reasonably concluded that the communication at issue was not about the pending matter because it was not about the choice of sentencing. The jurors were not charged with deciding the eternal consequences of their soul.
Verona Sheleena Rios