407 F.3d 198
Jerry Wayne Conner, Petitioner-Appellant,
v.
Marvin Polk, Warden, Central Prison, Raleigh, North Carolina,
Respondent-Appellee.
Docket number: 04-23
Federal Circuits, 4th Cir.
May 3, 2005
Before LUTTIG, KING, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge KING wrote the
majority opinion, in which Judge SHEDD joined. Judge LUTTIG wrote a
dissenting opinion.
OPINION
KING, Circuit Judge:
In April 1991, Jerry Wayne Conner was convicted by a
jury in the Superior Court of Gates County, North Carolina, for the
first-degree murders of Minh Linda Luong Rogers ("Minh") and her sixteen-year
old daughter, Linda Minh Rogers ("Linda"), as well as the related crimes
of first-degree rape and robbery with a firearm. The jury recommended
that Conner be sentenced to death, and the presiding judge imposed two
death sentences. On direct appeal, the Supreme Court of North Carolina
affirmed Conner's convictions but vacated his death sentences, and
awarded him a new capital sentencing proceeding. State v. Conner, 335
N.C. 618, 440 S.E.2d 826 (1994) ("Conner I"). At his second sentencing
proceeding, the jury again recommended and the judge imposed two death
sentences.
Conner then unsuccessfully directly appealed the
death sentences imposed after his retrial, State v. Conner, 345 N.C.
319, 480 S.E.2d 626, 627 (1997) ("Conner II") cert. denied,
522 U.S. 876 , 118 S.Ct. 196, 139 L.Ed.2d 134 (1997). He
thereafter unsuccessfully sought state post-conviction relief. State v.
Conner, No. 90-CRS-648;649 (N.C.Super.Ct. May 5, 1999) (the "MAR Opinion");
State v. Conner, 352 N.C. 358, 544 S.E.2d 550 (2000). He then turned to
the federal courts and sought habeas corpus relief, pursuant to 28 U.S.C.
2254, in the Eastern District of North Carolina. See Conner v. Lee, No.
5:00-HC-546-BO (E.D.N.C. Mar. 12, 2004) ("Opinion I").
The district court dismissed Conner's § 2254 petition
without a hearing, see Opinion I at 46, but granted his subsequent
application for a certificate of appealability ("COA") under 28 U.S.C.
2253(c), see Conner v. Lee, No. 5:00-HC-546-BO (E.D.N.C. July 12, 2004)
("Opinion II"). The COA awarded by the district court relates to
Conner's claim that his Sixth and Fourteenth Amendment rights were
denied when Helene Knight, a local newspaper reporter who had
extensively covered his first trial, was permitted to serve as a juror
in his second sentencing proceeding. As explained below, we are obliged,
pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
28 U.S.C. 2254, to affirm the district court's denial of habeas corpus
relief on the claim presented by Conner's COA.
I.
The factual underpinnings of Conner's convictions
were described in some detail by the Supreme Court of North Carolina in
its opinion in Conner's first direct appeal. Those facts are set forth
here in haec verba:
The State's evidence at trial tended to show that on
the evening of 18 August 1990, Harold Lowe, his girlfriend, Kathy
Winslow, and Chris Bailey stopped at Rogers' Grocery outside Gatesville,
North Carolina, at approximately 9:30 p.m. They parked in the lot under
a streetlight facing the highway waiting for a friend, Will Harrell, to
arrive.
After a few minutes, Harold Lowe saw Minh Rogers and
an unknown white male leave the store. Minh and the man talked for a few
minutes and then Minh Rogers reentered the building. Chris Bailey
testified that he first noticed the white male walking from the store
toward a white car parked in the lot. A few moments later, that same
white male was carrying a shotgun and walking toward the vehicle in
which Bailey was sitting.
Not having paid further attention after Minh Rogers
reentered the store, Mr. Lowe testified he was startled when that same
man appeared at the passenger window of his truck holding "some kind of
identification with a picture." The man stated he was an agent with DEA
and that undercover officers were preparing to execute a drug bust in
the immediate vicinity in an effort to seize over $1.5 million worth of
cocaine. He further informed Mr. Lowe that if he did not want to be an
accessory to the crime, he and his friends should leave the premises
immediately. Lowe, Bailey, and Wilson each positively identified
defendant at trial as the man who approached their car and warned them
to leave the parking lot.
Will Harrell testified that he stopped by Rogers'
Grocery at approximately 9:50 p.m. on the evening of 18 August 1990. As
he entered the store, he recognized the owner of the establishment
talking to a white male he did not know. The white male was of medium
build, was approximately five-feet ten inches tall, and was wearing a
plaid shirt and a baseball cap. At trial, Mr. Harrell positively
identified defendant as the man he saw in Rogers' Grocery on the night
of 18 August 1990.
SBI [State Bureau of Investigation] Agent Eric A.
Hooks testified to statements made by Daniel Oliver Croy in a series of
interviews beginning on the morning of 19 August 1990. In essence, Mr.
Croy told various investigating officers that he stopped by Rogers'
Grocery on the evening of 18 August 1990 after dinner. He "drank some
beer, sat around, and talked with Linda [sic] Rogers, [and] her daughter."
During this time, a white stocky male of medium
height, thirty to thirty-five years of age, entered the store, made some
purchases, chatted for a while with Minh and then left. Mr. Croy noted
that the individual had a moustache and was wearing a baseball cap. Mr.
Croy left the grocery store around 8:45 p.m.; and as he was backing out
of his parking space, the same man he had seen inside Rogers' Grocery
drove up beside him on the driver's side of the car. The man told Mr.
Croy that he was an "SBI agent working with DEA on a big drug deal that
was going down in the area." At one point during the conversation, the
man asked Mr. Croy if he would like to see his credentials. He then held
up a pump shotgun and said "there's my credentials." Mr. Croy left
shortly thereafter but recalls that the lights in the store were on and
the store was apparently still open.
John Lambert, a part-time employee of Rogers' Grocery,
testified that on the morning of 19 August 1990, he arrived at the store
at 9:00 a.m. only to find he had left his key at home. After retracing
his steps, he returned to the store with the key and noted that the door
lock didn't make the usual clicking sound. He then realized the door had
apparently been left open overnight. When he entered the store, Mr.
Lambert found the bodies of Minh and Linda Rogers.
Deputy George M. Ryan of the Gates County Sheriff's
Department described the crime scene. The nude body of Linda Rogers was
lying on her back in a large pool of blood concentrated around her neck,
shoulders, and abdomen. He noted a gaping gunshot wound in her upper
chest and that the teeth in her mouth were "just shattered." Minh Rogers'
body was found on a lounge chair behind the counter. Although she was
fully clothed, her pullover sweater had been pulled up just below her
breasts and her shorts had been unzipped and pulled down. She was
covered in blood. After securing the scene, Deputy Ryan notified the SBI.
Dr. Page Hudson, former Chief Medical Examiner for
the State of North Carolina, performed the autopsies on 20 August 1990.
He stated that the cause of death for Minh Rogers was a gunshot wound to
the head causing massive destruction of the skull and brain. He further
opined that the shot was fired from a very short distance?two to four
feet. Spermatozoa were present in the vaginal cavity of Linda Rogers
indicating that she had been sexually active just prior to her death.
The younger woman died from a "shotgun wound to the under surface of
chin and neck."
On the morning of 31 August 1990, SBI Special Agent
Malcolm McLeod, Gates County Deputy Sheriff George Ryan, and Hertford
County Deputy Sheriff Ronnie Stallings questioned defendant concerning
the murders at Rogers' Grocery on the night of 18 August. After an
initial attempt to mislead the officers, defendant related the following
sequence of events.
On the day defendant was fired from his job as a
truck driver with Rose Brothers (either the thirteenth or fourteenth of
August 1990), he stopped at the Fast Fare in Murfreesboro. He engaged in
an extensive conversation with a black male whom he did not know
personally but had seen on numerous occasions. The man was approximately
six-feet tall, weighed 240 pounds, and was in his thirties with slightly
graying hair. The conversation centered upon whether defendant was
interested in making some quick, "illegal money." Even after being
offered $7000 to kill a "Japanese woman who ran a store in Gates County,"
defendant informed the man he was not interested and left. However, as
financial problems began to arise, defendant drove back to Murfreesboro
to locate the black male. When he was unable to find him, defendant
decided to kill the woman and try to collect the money afterwards.
Defendant further informed the officers that on
Saturday, 18 August, he drove to Gates County, located Rogers' Grocery,
and went inside. He left shortly thereafter since there were several
customers inside. On the next several times he drove by, there were
vehicles in the parking lot. When he finally found the lot relatively
empty, he parked his car and entered the store carrying his 12-gauge
pump, sawed-off shotgun with pistol grips. When he walked in, defendant
told Minh Rogers he was going to shoot her. She laughed. He then forced
her to lie down upon a lounge chair located behind the counter. When she
attempted to rise, he shot her in the upper chest area from a distance
of approximately eight (8) inches. Upon being startled by the victim's
teenage daughter entering the main room of the store, defendant held her
at gunpoint. After searching her for a weapon, he ordered her to take
off her clothes. He then raped Linda Rogers and shot her in the upper
chest. Defendant remembered talking with some people in the parking lot
of Rogers' Grocery but does not recall identifying himself as a law
enforcement officer. Before fleeing the scene, defendant picked up a
dark colored briefcase, a bank bag, and the money from the cash register.
Defendant modified this version of his confession to
state that, on 18 August 1990, he had stopped in Rogers' Grocery to get
something to drink. An older white male and the woman who owned the
store started to tease him?calling him "cowgirl" or "cowboy". He became
angry, left the store, and went to Alvin Riddick's home where he stayed
until after dark. While drinking two bottles of George Dickel whiskey,
defendant became more and more upset about his treatment at the store
earlier in the day. He returned to the store finding only Minh Rogers
and the white male present. As he entered the store, the white male
called him a "dickhead." Defendant suggested the two men go outside and
fight. Outside, however, the unidentified white male indicated he was
not interested in fighting and left. Defendant then proceeded to kill
the two women as he previously indicated.
The State produced extensive physical evidence
through numerous witnesses including SBI agents, FBI agents, and
deputies of the Gates and Hertford County Sheriffs' Departments which
corroborated the testimony of the prosecution witnesses and the main
elements of defendant's confession.
Conner I, 440 S.E.2d at 829-31. At the conclusion of
the guilt phase of Conner's first trial, the jury convicted him on all
charges?two counts of first-degree murder and one count each of first-degree
rape and robbery with a firearm. Id. at 831. After the separate
sentencing phase of the proceeding, the jury recommended that Conner
receive two death sentences on the murder convictions. Id. On direct
appeal, the Supreme Court of North Carolina found no error meriting
reversal of Conner's convictions. Id. However, because the trial court
had improperly restricted voir dire on whether prospective jurors would
automatically impose the death penalty, in contravention of Morgan v.
Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), the
court vacated Conner's death sentences (but not his sentences for rape
and robbery) and remanded for a new capital sentencing proceeding. Id.
In January 1995, Conner's second sentencing
proceeding was con-ducted, pursuant to N.C. Gen.Stat. § 15A-2000 (providing
requirements for capital sentencing proceeding). At its conclusion, the
jury found two aggravating factors for each murder: that they were
committed during the commission of a felony and were each part of a
course of conduct by the defendant which included crimes of violence
against another person. Conner II, 480 S.E.2d at 628. The jury also
found two statutory and three non-statutory mitigating factors, but
concluded that the mitigating circumstances were insufficient to
outweigh the aggravating circumstances. Id. at 628-29. The jury
recommended that Conner be sentenced to death on each murder conviction,
which the trial judge imposed. Id. at 629.
On appeal, the Supreme Court of North Carolina upheld
Conner's death sentences, see Conner II, 480 S.E.2d at 636, and the
Supreme Court denied his petition for a writ of certiorari, see Conner
v. North Carolina,
522 U.S. 876 , 118 S.Ct. 196, 139 L.Ed.2d 134 (1997). On
July 28, 1998, Conner filed a motion for appropriate relief ("MAR"), see
N.C. Gen.Stat. § 15A-1415, in the Superior Court of Gates County, and
the State thereafter responded with its answer and a motion for judgment
on the pleadings. On
May 5, 1999, the Superior Court issued its MAR Opinion, denying Conner's
MAR on the pleadings. See MAR Opinion at 38. On August 24, 2000, the
Supreme Court of North Carolina declined to review the MAR Opinion.
State v. Conner, 352 N.C. 358, 544 S.E.2d 550 (2000).
On September 15, 2000, Conner filed his § 2254
petition for habeas corpus relief in the Eastern District of North
Carolina, including a request for an evidentiary hearing. In November
2000, the State filed its answer and also a motion for summary judgment.
On March 12, 2004, the district court granted the State's motion and
denied Conner's request for an evidentiary hearing. See Opinion I. On
August 11, 2004, Conner filed a motion in the district court seeking a
COA on three bases, contending, inter alia, that he was denied his
constitutional right to a fair trial when a local reporter, who had
covered his first trial, later served as a juror in his second
sentencing proceeding. On September 12, 2004, the district court granted
Conner a COA on that claim only, pursuant to 28 U.S.C. 2253(c),
concluding that Conner had made a substantial showing of the denial of a
constitutional right. The court denied Conner's application for a COA on
his two other contentions. See Opinion II at 3. This appeal followed,
and we possess jurisdiction to review the claim presented by Conner's
COA pursuant to 28 U.S.C. 1291.
II.
We review de novo a district court's "decision on a
petition for writ of habeas corpus based on a state court record."
Basden v. Lee, 290 F.3d 602, 608 (4th Cir.2002)(internal quotation marks
omitted). Additionally, we review for abuse of discretion a district
court's failure to conduct an evidentiary hearing or to authorize
discovery proceedings. Thomas v. Taylor, 170 F.3d 466, 474-75 (4th
Cir.1999).
Pursuant to AEDPA, a federal court may award habeas
corpus relief with respect to a claim adjudicated on the merits in state
court only if the adjudication resulted in a decision that: (1) was "contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States";
or (2) 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). As the Supreme Court has explained, a state court adjudication
is "contrary to" clearly established federal law only if "the state
court arrives at a conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court decides a case
differently than [the] Court has on a set of materially
indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120
S.Ct. 1495, 146 L.Ed.2d 389 (2000). "Under the `unreasonable application'
clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from [the] Court's
decisions but unreasonably applies that principle to the facts of the
prisoner's case." Id. Finally, a state court's findings of fact are
entitled to a "presumption of correctness," which a petitioner may rebut
only by "clear and convincing evidence." 28 U.S.C. 2254(e)(1).
III.
Conner contends that he was denied his constitutional
right to due process and to a fair and impartial jury, in violation of
the Sixth and Fourteenth Amendments, because juror Knight was biased.
Conner's argument is twofold: first, that Knight was biased because she
failed to answer honestly a material question at voir dire, in
contravention of McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.
548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984); and, second, that Knight was
necessarily biased because she had covered the first trial extensively
as a reporter and had outside information about the case, under the
principles enunciated in Smith v. Phillips, 455 U.S. 209, 222, 102 S.Ct.
940, 71 L.Ed.2d 78 (1982) (O'Connor, J., concurring). Furthermore,
Conner asserts that he is entitled to an evidentiary hearing as to juror
bias. As explained below, we reject each of Conner's contentions.
A.
The Sixth Amendment, which is applicable to the
states through the Fourteenth Amendment, see Irvin v. Dowd, 366 U.S.
717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), requires that a defendant
be accorded an impartial jury in all criminal prosecutions. Furthermore,
as we observed in Jones v. Cooper, "`[d]ue process alone has long
demanded that, if a jury is to be provided the defendant, regardless of
whether the Sixth Amendment requires it, the jury must stand impartial
and indifferent to the extent commanded by the Sixth Amendment.'" 311
F.3d 306, 310 (4th Cir.2002) (quoting Morgan v. Illinois, 504 U.S. 719,
727, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992)). Put simply, if "even one [partial]
juror is empaneled" and the death sentence is imposed, "the State is
disentitled to execute the sentence." Morgan, 504 U.S. at 728, 112 S.Ct.
2222.
1.
In McDonough, the Supreme Court spelled out its
particularized test for determining whether a new trial is required due
to juror deceit during voir dire or on jury questionnaires. Id. at 556,
104 S.Ct. 845. In order to obtain a new trial under the two-part
McDonough test, a defendant "must first demonstrate that a juror failed
to answer honestly a material question ... and then further show that a
correct response would have provided a valid basis for a challenge for
cause." Id. Although in McDonough the juror's incorrect voir dire
response was an honest mistake, the McDonough test has been applied
equally to deliberate concealment and to innocent non-disclosure. See
Jones, 311 F.3d at 310.
Conner contends that Knight "failed to answer
honestly" under McDonough when she responded negatively to the following
question from the trial court during voir dire in the second sentencing
proceeding: "And have you heard this case discussed by any person who
indicated direct or firsthand knowledge of the facts about the case
other than the witnesses that you heard?" Knight had, as a journalist,
covered Conner's first trial extensively for the local newspaper, the
Gates County Index. In the MAR proceeding, Conner submitted the
affidavits of an investigator and two law students alleging that Knight
had admitted to them that, as a local journalist, she had communicated
with and obtained information regarding the murders of Linda and Minh,
which was not available to the public, from Gates County Sheriff Elmo
Benton and Deputy Sheriff George Ryan (who testified at Conner's first
trial). Conner
maintains that, contrary to her voir dire response, Knight had direct or
firsthand knowledge of the facts of the crime.
The MAR court determined that a fair and reasonable
reading of the voir dire proceeding was that Knight did not consider
police or investigators as individuals with "firsthand knowledge of the
facts about the case." MAR Opinion at 8. Rather, the MAR court concluded
that Knight interpreted the inquiry to refer to witnesses who had
observed Conner at the murder scene on the night of the crime or who had
discovered the bodies. Id. We are unable to find the MAR court's
determination to be unreasonable, in light of Knight's forthright
responses regarding her knowledge and coverage of Conner's first trial
and the full awareness of all involved?the trial judge, the prosecutor,
and the defense counsel?that she possessed detailed knowledge of the
background of Conner's case and of his previous trial. See 28 U.S.C.
2254(d)(2) (providing that writ shall not be granted unless adjudication
resulted in decision based on unreasonable determination of facts in
light of evidence presented in State court); see also MAR Opinion at 6-9
("The transcript shows that the trial court, prosecutor, and trial
counsel were all fully aware that juror Helene Knight had covered
defendant's first trial in her professional capacity as a newspaper
reporter."). And Conner offered no evidence to the contrary, i.e., to
show that Knight had in fact communicated with witnesses with "firsthand
knowledge" of the crime, as that inquiry was interpreted by the MAR
court. We therefore conclude that Conner is not entitled to relief on
his contention that Knight "failed to answer honestly a material
question" at voir dire. McDonough, 464 U.S. at 556, 104 S.Ct. 845.
2.
In the alternative, Conner contends that Knight's
relationship to this case presents an extraordinary circumstance
mandating that we find juror bias. See Smith v. Phillips, 455 U.S. 209,
222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (O'Connor, J., concurring) ("While
each case must turn on its own facts, there are some extreme situations
that would justify a finding of implied bias.").
Those extreme situations, however, exist only "where the relationship
between a prospective juror and some aspect of the litigation is such
that it is highly unlikely that the average person could remain
impartial in his deliberations under the circumstances." Person v.
Miller, 854 F.2d 656, 664 (4th Cir.1988). Some examples provided by
Justice O'Connor of circumstances where bias might be presumed include
"a revelation that the juror is an actual employee of the prosecuting
agency, that the juror is a close relative of one of the participants in
the trial or the criminal transaction, or that the juror was a witness
or somehow involved in the criminal transaction." Phillips, 455 U.S. at
222, 102 S.Ct. 940 (O'Connor, J., concurring).
Although a reasonable person could well view Knight's
presence on the jury at Conner's second trial as troubling (given her
extensive coverage and knowledge of the first trial), the underlying
facts do not, standing alone, compel the conclusion that she was a
biased juror. In
assessing a question of bias, we must examine Knight's motives and the "reasons
that affect a juror's impartiality." See Jones v. Cooper, 311 F.3d 306,
313 (4th Cir.2002) (quoting McDonough, 464 U.S. at 556, 104 S.Ct. 845).
In these circumstances, there is simply no evidence that Knight had any
improper motive, much less evidence raising questions as to her
impartiality.
Conner's allegations regarding juror bias are readily
distinguishable from the circumstances of those cases where courts have
found such bias, for two fundamental reasons. First, in one set of those
decisions, the jurors were allowed to serve over the objection of
defense counsel, or counsel lacked knowledge of the facts giving rise to
the juror's potential bias. See Williams v. Taylor, 529 U.S. 420, 120
S.Ct. 1479, 146 L.Ed.2d 435 (2000) (remanding for evidentiary hearing
where juror lied about relationship with prosecution witness and about
prosecutor once representing her); Leonard v. United States, 378 U.S.
544, 84 S.Ct. 1696, 12 L.Ed.2d 1028 (1964) (reversing conviction where
defendant had objected to composition of jury whose members included
persons present when guilty verdict was returned against him in another
case); Wall v. Superintendent, Va. State Penitentiary, 553 F.2d 359 (4th
Cir.1977) (ordering new trial where counsel objected to jurors who had
served as jurors in another case where defendant had testified); Donovan
v. Davis, 558 F.2d 201 (4th Cir.1977) (ordering new trial where counsel
had moved to quash jury venire to avoid having jurors from first trial
seated at second trial). By contrast, Conner and his trial counsel (in
addition to the judge and the prosecution) had actual knowledge of
Knight's preexisting relationship with his case, and all those involved
accepted her as a juror in his second trial. MAR Opinion at 9.
Second, in other decisions where juror bias has been
found, some outside influence impacted a juror during trial. See Turner
v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) (reversing
conviction where deputy sheriffs who testified at trial ate with,
conversed with, and ran errands for jurors during trial and defendant
sought mistrial after they testified); see also Fullwood v. Lee, 290
F.3d 663 (4th Cir.2002) (awarding evidentiary hearing where affidavit
offered by petitioner alleged that juror was pressured by her husband
during proceedings?apparently effectively?to vote for death sentence).
In Conner's second trial, Knight had no improper outside contacts,
either pressuring her to vote in a certain manner or to trust particular
witnesses. And, as we have noted, Conner and his defense counsel were
well-aware of Knight's extensive newspaper coverage and relationship
with his case, unlike the situations presented in Turner and Fullwood.
MAR Opinion at 6-9.
These distinguishing factors are significant for the
reason that nothing here suggests that the jury was not "capable and
willing to decide the case solely on the evidence before it." Smith, 455
U.S. at 217, 102 S.Ct. 940 (emphasis added); see Turner, 379 U.S. at
472-73, 85 S.Ct. 546 ("[T]he `evidence developed' against a defendant
shall come from the witness stand in a public courtroom."). As the MAR
court observed, "[n]othing in [Knight's] responses shows an
unwillingness or inability to be fair, impartial, follow the trial
court's instructions, and base her decisions on evidence presented to
her as a juror." MAR Opinion at 7-9 ("She unequivocally stated her
ability to make her decisions solely on evidence that would be presented
to her as a juror."). Put simply, Conner has failed to allege (and thus
cannot establish) that anyone sought to influence the verdict in his
second trial at any time before or during deliberations.
In these circumstances, Conner has failed to show
that the MAR court's decision was contrary to, or an unreasonable
application of, clearly established Supreme Court precedent, because the
decisions on which he relies, i.e., Williams, Leonard, and Turner, are
each distinguishable. Therefore, Conner is not entitled to § 2254 relief
on the ground that juror Knight was biased.
B.
In seeking habeas corpus relief, Conner also
requested that the district court conduct an evidentiary hearing,
affording him the opportunity to examine the relevant witnesses. A
federal court may not grant an evidentiary hearing to a habeas corpus
petitioner if the petitioner "failed to develop the factual basis of [his]
claim in state court." See 28 U.S.C. 2254(e)(2). Because the State does
not assert that Conner failed to develop the factual basis of his juror
bias claim in state court, the district court could have conducted an
evidentiary hearing on this point, but only if Conner had first alleged
"additional facts that, if true, would entitle him to relief," and if
Conner had then established one of the factors set forth in Townsend v.
Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Fullwood, 290
F.3d at 681 (internal quotation marks omitted).
There was no error in the district court's denial of
an evidentiary hearing because, even if the facts alleged by Conner are
taken as true, he would not be entitled to relief. More specifically,
Conner failed to allege sufficient facts to entitle him to relief on
grounds that Knight "failed to answer honestly a material question" at
voir dire. See McDonough, 464 U.S. at 556, 104 S.Ct. 845. In the MAR
proceeding, the court found that Knight had been asked on voir dire only
if she had contact with witnesses to the crime:
[A] fair and reasonable reading of the entire voir
dire leads to the conclusion that juror Helene Knight did not consider
policy and investigative personnel "persons with firsthand knowledge."
There is no contention or evidence that juror Helene Knight ever spoke
with or otherwise had any contact with persons present at the Rogers
Grocery on the evening of the murders or who initially discovered the
bodies.
MAR Opinion at 8. This determination constitutes a
factual finding made by a state court that we presume to be correct, see
28 U.S.C. 2254(e)(1), and which Conner has failed to rebut by clear and
convincing evidence, see 28 U.S.C. 2254(e)(2)(B). As the MAR court
observed, even if Conner could prove the allegations made in the
affidavits, he has offered no evidence to show that Knight lied on voir
dire. MAR Opinion at 8. Therefore, we are unable to conclude that the
district court erred in its determination that Conner is not entitled to
an evidentiary hearing. See McDonough, 464 U.S. at 556, 104 S.Ct. 845.
IV.
Pursuant to the foregoing, we affirm the district
court's denial of habeas corpus relief.
AFFIRMED.
*****
LUTTIG, Circuit Judge, dissenting:
Conner has alleged facts that, if true, establish
that the state court's decision of his Sixth Amendment claim was both
contrary to and an unreasonable application of the Supreme Court's
clearly established law on juror bias. He is thus entitled to an
evidentiary hearing. I respectfully dissent.
I.
In rejecting Conner's Sixth Amendment claim, the
state court relied exclusively on McDonough Power Equipment, Inc. v.
Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), without
addressing the Supreme Court's Sixth Amendment cases on actual juror
bias, such as Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d
78 (1982). See J.A. 451-58. Thus, by assuming that McDonough provides
the sole avenue of relief for cases like Conner's, the state court
required Conner to prove that juror Knight deliberately lied at voir
dire in order to establish his Sixth Amendment claim under Smith. J.A.
452. This was error. No less than five members of the Supreme Court
wrote or joined separate opinions in McDonough to emphasize that
McDonough did not so limit the applicability of Smith and related cases.
See McDonough, 464 U.S. at 556-57, 104 S.Ct. 845 (Blackmun, J.,
concurring) ("I write separately to state that I understand the Court's
holding not to foreclose the normal avenue of relief available to a
party who is asserting that he did not have the benefit of an impartial
jury. Thus, regardless of whether a juror is honest or dishonest, it
remains within a trial court's option ... to order a post-trial hearing
at which the movant has the opportunity to demonstrate actual bias....");
id. at 558, 104 S.Ct. 845 (Brennan, J., concurring in the judgment). In
fact, McDonough was a civil case that did not even present the issue of
juror bias under the Sixth Amendment. See id. at 549, 555, 104 S.Ct.
845. In light of this, numerous courts, including the Fourth Circuit,
have likewise held that McDonough does not provide the sole avenue of
relief for a criminal defendant alleging actual juror bias. See, e.g.,
Jones v. Cooper, 311 F.3d 306, 310 (4th Cir.2002) ("The McDonough test
is not the exclusive test for determining whether a new trial is
warranted: a showing that a juror was actually biased, regardless of
whether the juror was truthful or deceitful, can also entitle a
defendant to a new trial."); Fitzgerald v. Greene, 150 F.3d 357, 362-63
(4th Cir.1998) (same); Zerka v. Green, 49 F.3d 1181, 1186 n. 7 (6th
Cir.1995); Amirault v. Fair, 968 F.2d 1404, 1405-06 (1st Cir.1992);
Cannon v. Lockhart, 850 F.2d 437, 440 (8th Cir.1988). And the Supreme
Court has unanimously confirmed this interpretation by citing only Smith,
and not McDonough, as the law governing a claim of actual juror bias
that, like Conner's, involved an honest but misleading response by the
juror at voir dire. See Michael Williams v. Taylor, 529 U.S. 420, 442,
120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).
Therefore, the state court relied on a rule of law
that contradicts the holdings of Smith and other juror-bias cases, which
do not require a defendant to prove that the biased juror deliberately
lied at voir dire. The state court's decision was thus "contrary to"
clearly established law. See Terry Williams v. Taylor, 529 U.S. 362, 120
S.Ct. 1495, 146 L.Ed.2d 389, (2000) ("A state-court decision will
certainly be contrary to our clearly established precedent if the state
court applies a rule that contradicts the governing law set forth in our
cases.").
II.
Because the state court's treatment of Conner's juror-bias
claim resulted in a decision that was contrary to clearly established
law, its decision is not entitled to deference. See Rose v. Lee, 252
F.3d 676, 689-90 (4th Cir.2001). But even if the state court had applied
Smith and related cases, as required, Conner would nonetheless be
entitled to relief, because the state court's denial of his claim
necessarily involved an unreasonable application of those cases. See 28
U.S.C. 2254(d)(1).
It is clearly established that the presence of a
single biased juror in a capital trial violates the Sixth Amendment,
Morgan v. Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 119 L.Ed.2d 492
(1992), and that the remedy for credible allegations of juror bias is a
hearing at which to prove actual bias. See Smith, 455 U.S. at 215, 102
S.Ct. 940 (1982) ("This 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."); Remmer v. United States, 347
U.S. 227, 230, 74 S.Ct. 450, 98 L.Ed. 654 (1954) (reversing the district
court's denial without hearing of the defendant's motion for a new trial
based on alleged juror bias, and remanding for an evidentiary hearing).
This clearly established principle has been applied on innumerable
occasions, including on habeas review. See, e.g., Michael Williams, 529
U.S. at 440-42, 120 S.Ct. 1479 ("[T]hese omissions [of information at
voir dire] as a whole disclose the need for an evidentiary hearing.");
Fullwood v. Lee, 290 F.3d 663, 682 (4th Cir.2002) (granting an
evidentiary hearing to determine whether a juror was improperly
influenced by her husband to vote for the death penalty).
Here, the circumstances that Conner alleges plainly
establish the risk of actual bias. He alleges that juror Knight engaged
in confidential conversations about his case with investigators and a
key trial witness, see J.A. 408, and that these conversations included
victim-impact evidence highly relevant to the sentencing trial in which
Knight sat as a juror. J.A. 422. These allegations raise the obvious
possibility that Knight relied on such extraneous evidence (and other
yet undisclosed communications) in her deliberation about whether to
sentence Conner to death. Such would constitute a quintessential
instance of actual juror bias.
Therefore, this is plainly not a case in which
Conner's allegations, even if true, would be insufficient even to raise
a credible inference of bias. See Jones v. Cooper, 311 F.3d 306, 313
(4th Cir.2002). On the contrary, the risk of bias here was at least as
great as that in Smith, and comparable to or greater than the risk in
virtually every other Supreme Court case on actual bias. See Smith, 455
U.S. at 212, 102 S.Ct. 940 (juror applied for a job at the prosecutor's
office during trial); Remmer, 347 U.S. at 228, 74 S.Ct. 450 (juror was
exposed to a comment "in jest" that he could profit from a favorable
verdict to the defendant, and to a subsequent FBI investigation of the
comment); Chandler v. Florida, 449 U.S. 560, 575, 101 S.Ct. 802, 66 L.Ed.2d
740 (1981) (jurors were exposed to unusual publicity and a sensational
courtroom atmosphere); Michael Williams, 529 U.S. at 440, 120 S.Ct. 1479
(juror had been married, fifteen years previously, to an investigator
and trial witness). Indeed, the risk of bias in Knight's conversations
was as great, or greater than, the risk of bias in cases where the
Supreme Court has held that the circumstances compelled a finding of
implied bias. See Parker v. Gladden, 385 U.S. 363, 365, 87 S.Ct. 468, 17
L.Ed.2d 420 (1966) (per curiam) (jurors were exposed to two offhand
comments by a bailiff asserting the defendant's guilt); Turner v.
Louisiana, 379 U.S. 466, 468, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) (two
prosecution witnesses served among the bailiffs in charge of the
sequestered jury, but without discussing the case); Leonard v. United
States, 378 U.S. 544, 544-45, 84 S.Ct. 1696, 12 L.Ed.2d 1028 (1964) (per
curiam) (a prior jury announced its guilty verdict in the presence of
the jurors who would try the defendant on a closely related crime).
The state seeks to distinguish Smith and like cases
by arguing that Conner's counsel had notice of Knight's involvement in
the prior trial and opportunity to strike her at voir dire. See
Appellee's Br. at 19, 22 ("Conner's trial counsel had full knowledge of
the information Ms. Knight possessed as a potential juror. It was
incumbent on trial counsel to probe deeper if desired or deemed
necessary."). But such is an unreasonable ground on which to distinguish
Smith, because Knight's misleading replies at voir dire deprived counsel
of notice of the exact source of bias challenged here. See J.A. 245-46
("THE COURT: And have you heard this case discussed by any person who
indicated direct or firsthand knowledge of the facts about the case
other than the witnesses that you heard? MS. KNIGHT: No, sir."); J.A.
398, 403 (affidavits of defense counsel averring that Knight's "answers
during voir dire indicated [to them] that she had no such direct contact
with witnesses"); cf. Michael Williams, 529 U.S. at 442, 120 S.Ct. 1479
(providing an evidentiary hearing where "[t]he trial record contains no
evidence which would have put a reasonable attorney on notice that [the
juror's] non-response was a deliberate omission of material information").
By nevertheless insisting that Conner's claim fails because Knight's
answers were honest but misleading, the state merely rehashes the state
court's erroneous conclusion that McDonough provides Conner's exclusive
avenue of relief. As shown above, it does not.
III.
Because the state court denied Conner a hearing on
the issue of Knight's bias, J.A. 458, he has not "failed to develop" the
relevant facts in state court through lack of diligence. See 28 U.S.C.
2254(e)(2); Michael Williams, 529 U.S. at 430, 120 S.Ct. 1479. For the
same reason, Conner fulfills at least one of the six factors of Townsend
v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) (requiring
an evidentiary hearing when "the material facts were not adequately
developed at the state-court hearing"). Therefore, Conner is entitled to
an evidentiary hearing in the district court to determine what was
actually communicated to Knight and whether it influenced her
deliberations. If Conner can establish both that the alleged
communications included prejudicial information not produced at trial,
and that juror Knight (or her fellow jurors) relied on such evidence to
Conner's detriment, I would grant him a new sentencing hearing.
For these reasons, I dissent from the majority's
judgment.