Barnes v. Thomas

• Decision Date: 12 September 2019
• Docket Number: No. 18-0005,18-0005
• Citation: 938 F.3d 526
• Parties: William Leroy BARNES, Petitioner - Appellant, v. Edward THOMAS, Warden, Central Prison, Raleigh, North Carolina, Respondent - Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

938 F.3d 526

William Leroy BARNES, Petitioner - Appellant,

v.Edward THOMAS, Warden, Central Prison, Raleigh, North Carolina, Respondent - Appellee.

No. 18-0005

United States Court of Appeals, Fourth Circuit.

Argued: May 8, 2019

Decided: September 12, 2019

ARGUED: M. Gordon Widenhouse, Jr., RUDOLF WIDENHOUSE, Chapel Hill, North Carolina, for Appellant. Jonathan Porter Babb, Sr., NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: George B. Currin, Asheville, North Carolina, for Appellant. Joshua H. Stein, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

Before AGEE, FLOYD, and THACKER, Circuit Judges.

Reversed and remanded by published opinion. Judge Floyd wrote the opinion in which Judge Thacker joined. Judge Agee wrote a separate dissenting opinion.

FLOYD, Circuit Judge:

More than 20 years ago, Petitioner William Leroy Barnes was convicted of murder in North Carolina state court and sentenced to death. Following the trial, Barnes sought to overturn his death sentence, claiming that during sentencing deliberations, a juror improperly consulted with her pastor about whether she could vote to impose the death penalty without running afoul of her religious beliefs. She then relayed his guidance to the entire jury. Barnes’ juror misconduct claim made its way through the North Carolina state courts, culminating in a final denial in state post-conviction proceedings. On Barnes’ first federal habeas appeal, we held that the post-conviction court violated clearly established federal law by failing to afford Barnes a presumption of prejudice and an evidentiary hearing on his juror misconduct claim, as required by Remmer v. United States , 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954). We remanded for an evidentiary hearing to determine if this error resulted in actual prejudice, thus warranting habeas relief. We now hold that it did.

I.

William Leroy Barnes, an inmate on North Carolina’s death row, appeals the district court’s second denial of his petition for writ of habeas corpus against Edward Thomas, Warden of the Central Prison in Raleigh, North Carolina (hereinafter the "State"). In 1994, Barnes was convicted of first-degree murder in North Carolina state court for the deaths of B.P. and Ruby Tutterow. After Barnes was found guilty, the trial proceeded to the sentencing phase, where the jury was charged with determining whether Barnes and his two codefendants would be sentenced to death or life imprisonment. During closing arguments of the sentencing phase, an attorney representing Frank Chambers, one of Barnes’ codefendants, made religiously charged statements about a juror’s choice to impose the death sentence:

Surely, one among you believes in God, the father, the son, the Holy Ghost, the teachings of Jesus Christ. And if you do, you know that Frank Chambers will have two judgment days. The one he’s got today, where you sit as his judge, and you determine what happens with his earthly life. ... [I]f you are a true believer, you know that he will have a second judgment day. ... On that day, he will be judged not by the law of man, but by a higher law, the laws of God. ... 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? Well 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. Yes, 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. 1530–33.

These statements were presented with no interjection from the prosecution or the trial court. The next day, the jury recommended that Barnes be sentenced to death. Immediately after the jury returned its sentencing recommendation and exited the courtroom, Barnes’ attorney alleged to the trial court that one of the jurors had met with her pastor to discuss the death penalty during sentencing deliberations and had relayed the pastor’s counsel to the other jurors. The trial court denied Barnes’ request to inquire further into the matter, and Barnes appealed to the Supreme Court of North Carolina. The state supreme court denied relief, holding 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 1999, Barnes sought state post-conviction relief by filing a Motion for Appropriate Relief (MAR) in Rowan County Superior Court (the "MAR Court"), in which he reasserted his juror misconduct claim, among others. With the motion, Barnes presented new information to further corroborate his juror misconduct claim. For example, Barnes introduced a summary of a 1995 interview his direct appeal team conducted with the juror accused of misconduct, Hollie Jordan (hereinafter "Juror Jordan"). Juror Jordan signed the summary and acknowledged that it was an accurate representation of the interview. According to the summary, Juror Jordan was offended by the religiously charged closing arguments, and although she " ‘did not accept the attorney’s argument,’ she did notice ‘that another juror, a female, seemed visibly upset.’ " Barnes v. Joyner , 751 F.3d 229, 235 (4th Cir. 2014) (hereinafter Barnes I ) (quoting interview summary). " ‘To remedy the effect of the argument, [Juror] Jordan brought a Bible from home into the jury deliberation room’ and read a passage to all the jurors, which provided ‘that it is the duty of Christians to abide by the laws of the state.’ " Id. (quoting interview summary).

The MAR Court summarily denied Barnes’ juror misconduct claim as "procedurally barred and without merit" because the issue had been previously addressed and rejected by the Supreme Court of North Carolina on direct appeal.¹ J.A. 1883. The Supreme Court of North Carolina denied Barnes’ request for certiorari review.

In 2008, Barnes filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he again raised his juror misconduct claim. Barnes argued that under Remmer v. United States , 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), he was entitled to a presumption of prejudice and an evidentiary hearing upon presentation of a credible allegation of juror misconduct. A magistrate judge recommended that his juror misconduct claim be denied. After concluding that Barnes’ claims did not require a hearing, the district court adopted the magistrate judge’s recommendation and denied Barnes’ habeas petition. Barnes then brought his first appeal.

On our first review of this case, we concluded that the MAR Court’s disposal of Barnes’ juror misconduct claim amounted to an unreasonable application of Remmer v. United States , 347 U.S. at 229, 74 S.Ct. 450, which "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." Barnes I , 751 F.3d at 242. We distinguished Barnes’ allegations of juror misconduct from cases in which we have held that an internal juror influence—i.e ., a juror’s own bias or communication with fellow jurors—does not implicate a defendant’s Sixth Amendment right to an impartial jury. Id. at 245–46 ; see also Robinson v. Polk , 438 F.3d 350, 361–66 (4th Cir. 2006) (holding that juror’s request for bailiff to bring Bible into jury room was not an external influence raising Sixth Amendment concerns because bailiff did not "instruct[ ] the jury to consult the Bible" or do "anything other than simply provide the Bible upon the juror’s request"); Stockton v. Com. of Va ., 852 F.2d 740, 744 (4th Cir. 1988) (distinguishing between internal "juror impairment or predisposition" and the more serious danger of "extraneous communication"). Because Barnes credibly alleged an improper external influence on the jury, we held, the MAR Court erred in failing to apply a presumption of prejudice and afford Barnes a hearing. Barnes I , 751 F.3d at 247–48. However, because habeas relief is only warranted if the petitioner suffered actual prejudice as a result of the constitutional error, we remanded the case for the district court to conduct an evidentiary hearing "solely on the issue of whether the state court’s failure to apply the Remmer presumption and failure to investigate Juror Jordan’s contact with Pastor Lomax had a substantial and injurious effect or influence on the jury’s verdict." Id. at 252.

On remand, the parties held an evidentiary hearing before a magistrate judge. Barnes called four witnesses: Janine Fodor, Hollie Jordan, Ardith Peacock, and Leah Weddington. The State called no witnesses.

During the evidentiary hearing, the parties raised several objections to certain testimony regarding the jurors’ mental thought processes under Federal Rule of Evidence 606. The magistrate judge acknowledged that there were "gray areas," or confusion, as to how Rule 606 should apply to the hearing and allowed the State to...