              Case: 12-16552    Date Filed: 05/02/2014    Page: 1 of 25


                                                                  [PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-16552
                           ________________________

                      D.C. Docket No. 1:06-cv-02470-WBH

GEORGE RUSSELL HENRY,

                                                                Petitioner-Appellant,

                                       versus

WARDEN, GEORGIA DIAGNOSTIC PRISON,

                                                               Respondent-Appellee.
                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                   (May 2, 2014)

Before HULL, WILSON, and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

      George Russell Henry, a Georgia prisoner sentenced to death after pleading

guilty to the murder of a police officer, Robert Ingram, appeals the denial of his

petition for a writ of habeas corpus. Henry argues that he was deprived of a fair
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trial when the trial court excused a juror from deliberations about his sentence.

Henry alleges that the juror was a holdout from voting to sentence him to death.

The foreman of the jury informed the trial court that the juror was impeding

deliberations, and the juror, who was pregnant, confirmed that fact. After Henry’s

counsel failed to raise an issue of juror misconduct on appeal, the state courts, on

collateral review, refused to consider it. Henry argues that we should excuse his

failure to raise the issue on direct appeal because he was deprived of the effective

assistance of appellate counsel in violation of the Sixth and Fourteenth

Amendments to the Constitution. We affirm the denial of Henry’s petition.

                                I. BACKGROUND

      Police Officer Robert Ingram of Cobb County, Georgia, was on routine

patrol when he saw a “suspicious white male dressed in all black carrying some

type of a bag.” Henry v. State, 507 S.E.2d 419, 420 (Ga. 1998) (internal quotation

marks omitted). Officer Ingram approached the man, George Russell Henry, to

conduct an investigatory stop. Id. at 420–21. Officer Ingram asked Henry what his

bag contained, and Henry began to show him some of its contents. Id. at 421. But

Henry, a convicted felon, was carrying a pistol because he had been searching for

businesses to burgle before Officer Ingram stopped him. Id. at 420. When Henry

realized that Officer Ingram had seen ammunition for the pistol in his bag, Henry

feared that a search could lead to his arrest for being a felon in possession of a

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firearm. Id. at 421. So Henry murdered Officer Ingram by shooting him twice in

the head. Id.

      Henry eventually confessed to the murder of Officer Ingram and pleaded

guilty on the first day of his trial. Id. The trial court then held a sentencing phase.

Id. During the first day of jury deliberations, one of the jurors, Beth Hill, had

severe abdominal pain and went to the hospital. Hill had learned shortly before

trial that she was pregnant, and at the hospital, the doctor informed her that she

might be pregnant with twins. The doctor then cleared her to return to the jury

deliberations, which the trial court had suspended in her absence. After

deliberations began the following day, the jury foreman sent a note to the court that

stated Hill wished to be released from the jury out of concern for her child and that

the other jurors felt that they could not freely discuss the case in her presence

because they feared upsetting Hill, who had been extremely emotional throughout

deliberations, and they feared endangering her child.

      The trial court called the jury foreman to discuss the note. The foreman

explained that an incident in Hill’s past had contributed to her emotional state.

Both the court and counsel were already aware that, as a child, Hill had witnessed a

multiple murder at her school. Hill stated during voir dire that she had difficulty

dealing with violent images as a result of her experience. At one point during the

trial, Hill became so upset, after viewing a video of the crime scene, that the trial

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court recessed for her to compose herself. The foreman explained to the court that,

when Hill became upset during deliberations, she would become concerned for the

welfare of her child and that she would begin to have stomach pain. He stated that

Hill had approached him and told him that she wanted the court to remove her

from the jury and that both Hill and the rest of the jury believed her removal was

necessary.

       The court asked whether Hill’s presence would impede a free and open

discussion among the members of the jury if she were to remain, and the foreman

stated that it would. He also confirmed that Hill’s condition had already impeded

an open discussion in the jury room.

       The trial court called Hill next. The court asked Hill why she had requested

that the court remove her from the jury. Hill responded that it was a combination of

her traumatic past and her pregnancy: “[W]ith the combination of the two, . . . I

just feel that I can’t handle it anymore. . . . I’ve tried, but I don’t feel I can.” She

also explained that the other jurors were afraid to voice their opinions out of fear

that it would upset her, and when the court asked whether she believed that her

presence was impeding deliberations, she replied, “I know it is, yes.” She

explained that the jury was concerned about her and the safety of her child. The

court also asked Hill if fear for her child prevented her from “becoming an open




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participant” in deliberations. Hill responded, “Probably, yes,” and then, “Yes, it

does.”

         After hearing from counsel for both sides, the trial court excused Hill from

the jury. The court made a finding of fact that, with Hill on the jury, “the jury

[could ]not continue to freely discuss this case and have an open, unfettered

discussion of ideas, which is required and which is desired, of course, in all jury

deliberative processes.” The court replaced Hill with an alternate juror and directed

Hill to the judge’s chambers to collect payment for her service. Hill never

protested her removal nor asked to speak to the judge alone. After her excusal, the

jury voted to sentence Henry to death. See Henry, 507 S.E.2d at 420 n.1.

         After his sentencing, Henry’s counsel moved for investigative assistance,

including funds to interview jurors, but the trial court denied the motion. Henry

next filed a motion for new trial and included a one-sentence argument alleging

that the trial court erred when it excused Hill from deliberations. The trial court

denied the motion.

         In his appeal to the Supreme Court of Georgia, Henry failed to raise a claim

that the excusal of the pregnant juror deprived him of a fair trial in violation of the

Constitution. The Supreme Court of Georgia affirmed Henry’s sentence, Henry,

507 S.E.2d at 423, and the Supreme Court of the United States denied his petition




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for a writ of certiorari, Henry v. Georgia, 526 U.S. 1118, 119 S. Ct. 1768 (1999),

reh’g denied, 527 U.S. 1054, 120 S. Ct. 15 (1999).

      Henry later filed a state petition for a writ of habeas corpus, in which he

alleged a claim of juror misconduct. Henry contended that the jury conspired to

remove Hill because she was a holdout in favor of a life sentence and that this

misconduct deprived him of a fair and reliable sentencing trial in violation of the

Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments when the trial court

removed Hill from the jury. He also contended that ineffective assistance of

counsel provided cause and prejudice to overcome the procedural default of failing

to raise a claim of juror misconduct on appeal. The state court denied Henry’s

petition and ruled that his claim of juror misconduct was procedurally defaulted

because he did not raise it on direct appeal and could not establish cause and

prejudice to overcome the default. Henry then applied to the Supreme Court of

Georgia for a certificate of probable cause to appeal, but the court denied his

application. He also filed a petition for a writ of certiorari in the Supreme Court of

the United States, which denied his petition. Henry v. Terry, 549 U.S. 909, 127 S.

Ct. 241 (2006).

      Henry then filed a federal petition for a writ of habeas corpus in the district

court and alleged several claims for relief, including a claim of juror misconduct.

He requested discovery and an evidentiary hearing for his claim of juror

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misconduct, which the district court denied. The district court then denied his

petition and ruled that his claim of juror misconduct was procedurally defaulted.

The district court granted Henry a certificate of appealability for his claim of juror

misconduct and the related orders that denied Henry’s requests for discovery and

an evidentiary hearing.

                           II. STANDARD OF REVIEW

      We review de novo the determination of a district court that a habeas

petitioner is procedurally barred from raising a claim in federal court. Kelley v.

Sec’y for Dep’t of Corr., 377 F.3d 1317, 1345 (11th Cir. 2004).

                                 III. DISCUSSION

      The federal doctrine of procedural default may bar a district court from

reviewing a petitioner’s claim if a state court rejected it on a state procedural

ground. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). The state procedural

ruling ordinarily provides an “adequate and independent” ground to deny relief

under state law, which bars federal review of the underlying claim. See Marek v.

Singletary, 62 F.3d 1295, 1301 (11th Cir. 1995). But if a claim is procedurally

defaulted, a federal court may still address the merits of the claim if the petitioner

establishes cause for the default and actual prejudice. See Wainwright v. Sykes, 433

U.S. 72, 87–88, 97 S. Ct. 2497, 2506–07 (1977). To establish cause, the petitioner

must identify “some objective factor external to the defense” that impeded his

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ability to raise the claim in state court. Murray v. Carrier, 477 U.S. 478, 488, 106

S. Ct. 2639, 2645 (1986). We have determined that a claim for ineffective

assistance of counsel, if both exhausted and not procedurally defaulted, may

constitute cause. See Hill v. Jones, 81 F.3d 1015, 1031 (11th Cir. 1996).

      Henry does not contest that the procedural bar applied by the state court

provided an adequate and independent state ground to deny him relief on his claim

of juror misconduct. Henry instead argues that he can establish cause and prejudice

to overcome that procedural bar. We disagree.

      Henry argues that he can establish cause because his appellate counsel was

ineffective when he failed to investigate and raise the claim of juror misconduct on

appeal, but this argument fails. Appellate counsel for Henry faced a record that

consisted of a pregnant juror who witnessed a traumatic event as a child and was

having difficulty maintaining her composure during trial and deliberations, who

experienced severe stomach cramps during deliberations and was taken to a

hospital where she learned that she could be pregnant with twins, and who

informed the trial judge that she was impeding deliberations. The record also

reflected statements by the foreman that Hill was impeding deliberations. And after

the trial court replaced Hill with an alternate juror, post-sentencing counsel moved

for funds to interview the jurors, but the trial court denied the motion. In the

absence of evidence to suggest that anything improper took place, a failure to

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investigate and raise a claim of juror misconduct does not fall “outside the wide

range of professionally competent assistance.” Strickland v. Washington, 466 U.S.

668, 690, 104 S. Ct. 2052, 2066 (1984). After a thorough review of this record, we

conclude that counsel for Henry acted in an objectively reasonable manner when

he decided not to investigate or raise a claim of juror misconduct on direct appeal.

See Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064–65; Cummings v. Sec’y for

Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009). Ineffective assistance of

counsel cannot act as cause to excuse Henry’s default of his claim.

      Henry also argues in his reply brief that he can establish cause because he

was under no obligation to raise the claim earlier without evidence that would have

alerted his appellate counsel of his claim of juror misconduct, which is sufficient to

establish cause under Georgia law, see Turpin v. Todd, 493 S.E.2d 900, 907 (Ga.

1997), but this argument fails for at least two reasons. First, Henry did not

adequately raise this argument in his initial brief. United States v. Jernigan, 341

F.3d 1273, 1284 n.8 (11th Cir. 2003). Second, even if he had adequately raised it,

he points us to no federal precedent to support his argument; instead, he points

only to Georgia law. See Turpin, 493 S.E.2d at 907. This argument does not

establish cause to overcome the procedural default of Henry’s claim.

      Although his failure to establish cause for the procedural default alone

renders Henry’s claim unreviewable, Henry also cannot establish prejudice. Henry

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argues that he would have a reasonable probability of success on appeal as to his

claim of juror misconduct, but both former and current provisions of the Georgia

Evidence Code suggest otherwise. See Ga. Code § 9-10-9 (repealed 2013); id.

§ 17-9-41 (repealed 2013); id. § 24-6-606. Georgia law bars the admission of

evidence regarding juror deliberations, and Henry concedes that this evidence

would be necessary to prove his claim. Georgia evidentiary rules govern our

consideration of prejudice, but Federal Rule of Evidence 606(b) would require the

same result. See Fed. R. Evid. 606(b). Because the district court would be unable to

consider the evidence that Henry seeks to offer, Henry cannot establish prejudice.

      Our dissenting colleague contends that two different analyses of cause and

prejudice apply to Henry’s appeal—one to determine whether he may receive an

evidentiary hearing about his procedural default and another to determine whether

he may overcome his procedural default—but we disagree. No analysis of cause

and prejudice applies to determine whether a petitioner is entitled to an evidentiary

hearing. Although a standard for cause and prejudice applied to petitioners seeking

an evidentiary hearing who were not diligent and failed to develop the factual basis

of their substantive claims in state court before the Antiterrorism and Effective

Death Penalty Act, see Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715

(1992), that standard is no longer the law. Instead, the Act now bars evidentiary

hearings about the claims raised by non-diligent petitioners unless they can satisfy

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its more exacting standard. 28 U.S.C. § 2254(e)(2); see also Williams v. Taylor,

529 U.S. 420, 433, 120 S. Ct. 1479, 1489 (2000) (“[I]n requiring that prisoners

who have not been diligent satisfy § 2254(e)(2)’s provisions rather than show

cause and prejudice, . . . Congress raised the bar Keeney imposed on prisoners who

were not diligent in state-court proceedings.”).

      But this change in the law is irrelevant to whether the district court should

have granted Henry an evidentiary hearing on cause and prejudice. When a

petitioner asks for an evidentiary hearing on cause and prejudice, neither section

2254(e)(2) nor the standard of cause and prejudice that it replaced apply. See

Sibley v. Culliver, 377 F.3d 1196, 1207 n.9 (11th Cir. 2004) (“The term ‘claim’ [in

section 2254(e)(2)] appears to refer to the substantive claim for relief upon which

the petition for habeas corpus is based.”); Cristin v. Brennan, 281 F.3d 404, 412–

13 (3d Cir. 2002). When a petitioner has requested an evidentiary hearing on the

procedural default of a substantive claim, we need ask only whether the district

court abused its discretion when it denied an evidentiary hearing on that issue.

“[T]he decision to grant . . . a hearing rests in the discretion of the district court.”

Schriro v. Landrigan, 550 U.S. 465, 468, 127 S. Ct. 1933, 1937 (2007); see also

Coleman v. Hardy, 628 F.3d 314, 318 (7th Cir. 2010) (reviewing for abuse of

discretion the decision of a district court to deny the petitioner’s request for an

evidentiary hearing to establish facts to overcome procedural default); Kelley v.

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Sec’y for Dep’t of Corr., 377 F.3d 1317, 1333 (11th Cir. 2004) (reviewing for

abuse of discretion the decision of a district court to deny an evidentiary hearing on

a substantive claim).

      Our dissenting colleague would grant Henry an evidentiary hearing on cause

and prejudice even though Henry asked for that hearing—if at all—in one footnote

before the district court, and on appeal, Henry failed to mention this issue in his

initial brief. That failure waived the issue. See United States v. Britt, 437 F.3d

1103, 1104 (11th Cir. 2006) (“[We] declin[e] to consider issues not timely raised in

a party’s initial brief.”); Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342

(11th Cir. 2005) (“[A]rguments raised for the first time in a reply brief are not

properly before a reviewing court.” (quoting United States v. Coy, 19 F.3d 629,

632 n. 7 (11th Cir. 1994) (alteration omitted))). And when Henry raised the issue in

his reply brief, he failed to explain what evidence he would present at a hearing or

how his evidence would differ from the evidence he presented in the state court on

collateral review.

      In any event, the district court did not abuse its discretion when it denied

Henry an evidentiary hearing either on cause and prejudice to overcome his

procedural default or on the merits of his claim of juror misconduct. Henry failed

to proffer any new evidence about cause and prejudice in the district court, and the

record established that the state court had already allowed him to present evidence

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on the cause that he alleges, ineffective assistance of counsel for failure to

investigate and raise the claim of juror misconduct. Henry’s appellate counsel

testified at the evidentiary hearing in state court, and his appellate counsel and

post-trial counsel both provided affidavit testimony. Henry has never explained

what other evidence he would have presented to the district court on the

effectiveness of his counsel. And Henry is not entitled to an evidentiary hearing on

the merits of his claim of juror misconduct because he procedurally defaulted that

claim.

         We cannot agree with our dissenting colleague that Henry deserves another

evidentiary hearing—this time in federal court. Our dissenting colleague does not

explain how the district court abused its discretion when it declined to hold an

evidentiary hearing to determine whether cause and prejudice existed. We have

never held that the denial of an evidentiary hearing by a district court was an abuse

of discretion when the petitioner, like Henry, was granted a full and fair hearing on

the issue in state court. See, e.g., Williams v. Allen, 542 F.3d 1326, 1347–48 (11th

Cir. 2008). And a hearing—whether on cause and prejudice or on the merits—

would not “enable [Henry] to prove the petition’s factual allegations, which, if

true, would entitle [him] to federal habeas relief.” Schriro, 550 U.S. at 474, 127 S.

Ct. at 1940.




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                       IV. CONCLUSION

We AFFIRM the denial of Henry’s petition for a writ of habeas corpus.




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WILSON, Circuit Judge, dissenting:

       I cannot say that Henry should prevail on the merits of his juror misconduct

claim, or if it is procedurally barred. I can unequivocally say, however, that he has

not been afforded a sufficient opportunity to show cause and prejudice to

overcome default of his claim. I would vacate the district court’s opinion and

remand for discovery and an evidentiary hearing where Henry can have the

occasion to show cause and prejudice.

       Henry’s counsel did not raise a juror misconduct claim on direct appeal.

The state habeas court granted Respondent’s motion in limine excluding Henry’s

investigative team’s affidavits as impermissible evidence, then concluded that his

juror misconduct claim had been procedurally defaulted and did not reach the

merits.1 Therefore, in order to overcome the procedural default, Henry must show


       1
          It is important to note that Henry has not been afforded a full and fair hearing on the
merits of his juror misconduct claim. In Williams v. Allen, we examined whether a petitioner
“was denied a full and fair hearing within the meaning of Townsend” v. Sain, 372 U.S. 293, 313,
83 S. Ct. 745, 757 (1963). 542 F.3d 1326, 1347 (11th Cir. 2008). We listed six circumstances in
which a hearing is not full and fair, and the first occurs when “the merits of the factual dispute
were not resolved in the state court hearing.” Williams, 542 F.3d at 1347 (internal quotation
marks omitted). Indeed, the state court hearing here is distinguishable from the hearing in
Williams in ways beyond the fact that the state court here did not reach the merits. Although the
state habeas court accepted the juror affidavits Henry had obtained and testimony from
investigators who had interviewed jurors as proffer, Henry did not have the opportunity to fully
develop his evidence through use of the compulsory process or cross-examination. Further, in
Williams, although the trial judge interrupted testimony, questioned witnesses, interjected his
own opinion, and arguably made some insensitive comments, “the court found no indication that
this conduct prevented Williams from developing evidence necessary to adjudicate his claims.”
542 F.3d at 1347. Henry, by contrast, was clearly not afforded the live hearing in front of a
judge described in Williams, nor did he have the opportunity to directly interview each juror,
relevant third parties including bailiffs, or the opportunity to cross-examine.
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cause and prejudice. In order to do this, Henry requested an evidentiary hearing to

strengthen his evidence—an opportunity to subpoena each of the jurors and

examine them under oath. Contrary to the Majority’s characterization, Henry

clearly requested an evidentiary hearing on his juror misconduct claim in his

petition before the district court and before this court. 2 Henry also seeks discovery

from third party observers, including the bailiffs.

       The district court, quoting Kelley v. Sec’y for Dept. of Corr., 377 F.3d 1317,

1335 (11th Cir. 2004), ultimately concluded that:

       Where, as here, a state hearing was held,

       a habeas petitioner is “entitled to an evidentiary hearing if he can
       show cause for his failure to develop the facts in state-court
       proceedings and actual prejudice resulting from that failure.” Keeney
       v. Tamayo-Reyes, 504 U.S. 1, 11 (1992).3
       2
          In his original habeas petition filed in 2007, Henry asked that the district court “afford
him a reasonable opportunity to conduct discovery, [and] that [the district court] conduct an
evidentiary hearing on the claim.” In Henry’s brief filed in support of his habeas petition before
the district court in 2009, cited by the Majority, Henry specifically argues that cause and
prejudice exist excusing the failure to raise his juror misconduct claim, citing Williams v. Taylor,
529 U.S. 420, 432, 120 S. Ct. 1479, 1487 (2000), for the correct proposition that he is “entitled to
an evidentiary hearing regarding the habeas court’s default finding.” To the extent that the
Majority suggests Henry’s footnote explicitly requesting an evidentiary hearing and citing
Williams is insufficient, I disagree. Further, on appeal, the final section of Henry’s initial brief is
entitled “An Evidentiary Hearing Is Necessary to Resolve Conflicts in the Evidence; a
Decision Cannot Be Rendered on the Basis of the Proffer Alone.”
        3
          Contrary to the Majority’s treatment, there are actually two sets of cause and prejudice
analyses—one determines whether Henry is entitled to an evidentiary hearing, and the second
involves whether Henry overcomes the procedural default of his juror misconduct claim. In
determining whether or not a petitioner is entitled to a hearing, the Supreme Court and our court
have clearly articulated two different tests, one where a petitioner has been diligent in developing
his claim and one where he has not. See Williams, 529 U.S. at 435, 120 S. Ct. at 1489 (“To be
sure, in requiring that prisoners who have not been diligent satisfy § 2254(e)(2)’s provisions
rather than show cause and prejudice . . . Congress raised the bar Keeney imposed on prisoners
who were not diligent in state-court proceedings.” (emphasis added)); Kelley, 377 F.3d at 1335.
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In discussing whether Henry makes this cause and prejudice showing, the

district court did not address cause because it decided that there would be no

prejudice. I believe that there was cause for Henry’s failure to develop the

factual record below and disagree with the district court’s finding that there

was no prejudice. Cause can be shown either by the trial court’s denial of

Henry’s counsel’s request for funding to pursue the claim, or by his claim of

ineffective assistance of counsel.4 Further, to the extent that the Majority is

suggesting that Henry cannot show cause because he had a state court

hearing on his juror misconduct claim, we disagree that it was a full and fair

hearing on the merits. See FN 1. At every stage, Henry has sought to

develop the evidentiary record in order to prove his juror misconduct claim,

and at every stage, some obstacle has prevented him from developing this

record fully to permit fair consideration of his claim.




Williams clearly indicates that diligence is shown by the same actions that demonstrate cause,
such as whether a petitioner made a reasonable attempt, in light of the information available at
the time, to investigate and pursue claims in state court. 529 U.S. at 435, 120 S. Ct. at 1490. I
agree with the district court that Henry was diligent and that § 2254(e)(2) is therefore
inapplicable.
        4
          Henry argues that there was no evidence to alert counsel to juror misconduct, which can
establish cause. See Turpin v. Todd, 493 S.E.2d 900, 907 (Ga. 1997). Alternatively, Henry
argues that his appellate counsel was ineffective for failure to pursue the juror misconduct claim.
See Holladay v. Haley, 209 F.3d 1243, 1254 (11th Cir. 2000) (“Constitutionally ineffective
assistance of counsel can constitute cause.”). I disagree with the Majority’s view that Henry did
not adequately raise these alternative bases for showing cause.
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       Regarding prejudice, the district court gave two reasons for

concluding that there was no prejudice, and an additional reason not to be

concerned even if there was. First, the district court concluded that Henry

was bound by its determination in an earlier order that the evidence Henry

sought to develop was inadmissible. In its January 30, 2009 order, the

district court analyzed the sources of evidence that Henry wished to develop

and concluded that they would be, for the most part, barred by Federal Rule

of Evidence 606(b) and the equivalent Georgia Rule, which it determined

were materially similar. Second, the district court found that Henry failed to

comply with its request to “set forth with particularity what evidence [he]

intends to present at the hearing, which witnesses would present that

evidence, and exactly what those witnesses would say.”

       Upon review, however, it seems premature to conclude that all potential

evidence of an alleged constitutional violation is inadmissible because some

evidence, which Henry has not had a sufficient opportunity to gather, may be

precluded by either Georgia evidence rules or Rule 606(b). 5 It is not even clear

that the jurors’ testimony will be excluded for several reasons. First, in Tanner v.

United States, the Supreme Court reasoned that precluding juror testimony of the

circumstances then before the court (a juror’s use of alcohol) was not a

       5
        Similarly, it seems premature to require Henry to describe, with particularity, what
witnesses, whom he has not yet subpoenaed, will say at a hypothetical hearing.
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constitutional violation because there were other mechanisms to adequately protect

the defendant’s rights, such as voir dire and non-jurors observing the particular

juror’s drunkenness in court. 483 U.S. 107, 126–27, 107 S. Ct. 2739, 2750–51

(1987). However, as Henry argues, unlike the jurors in Tanner, the alleged juror

misconduct in this case was neither easily observable by outsiders nor likely to be

reported by the jurors at the time. Further, Tanner was a fraud case, whereas the

Supreme Court recognizes the heightened constitutional concerns in capital cases.

See, e.g., Harmelin v. Michigan, 501 U.S. 957, 994, 111 S. Ct. 2680, 2701

(“Proportionality review is one of several respects in which we have held that

‘death is different’ and have imposed protections that the Constitution nowhere

else provides.”). Second, the text of Rule 606(b) decidedly does not include

allegedly misleading communications between the jury and the judge, or the

allegedly conspiratorial comments that jurors made at a pizza shop while juror Hill

was in the hospital. See Fed. R. Evid. 606(b). Third, if upon development of the

factual record, otherwise inadmissible evidence proves to be the only means by

which Henry’s constitutional claim can be heard, the court will have to ensure that

the rules are not applied in a manner that violates Henry’s constitutional rights. Cf.

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324–26, 129 S. Ct. 2527, 2540–41

(2009) (finding that the protection of the Confrontation Clause cannot be

disregarded despite petitioner’s ability to subpoena the experts); Waldrip v.

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Humphrey, 532 F. App’x 878, 891 (11th Cir. 2013) (per curiam) (Barkett, J.,

concurring) (“A state court cannot use its evidentiary rules to deny an individual

access to a fundamental constitutional right.”).

       Further, the district court’s conclusion that Henry was not prejudiced by his

lack of a hearing is circular. After denying his request for an evidentiary hearing,

the district court reasoned that no prejudice could result from this decision because

the court would “carefully consider[ ] all of the evidence that Petitioner proffered

in state court.” This did not, however, cure any prejudice from Henry’s lack of

development of the record. Indeed, Henry is seeking an evidentiary hearing

precisely to increase the weight of the evidence suggesting that there was juror

misconduct. Ultimately, it was the gaps and inconsistencies in Henry’s proffered

evidence that led the district court to deny his petition because his claim would fail

on the merits. The fact that he failed on the merits because he lacked evidence

proves precisely, contrary to the district court’s holding, that he was prejudiced by

the lack of factual development below. Thus, he showed the cause and prejudice

necessary to secure an evidentiary hearing. 6 In short, the district court’s two

reasons for concluding that there was no prejudice due to the lack of factual

       6
         It is evident, as Henry argues, that the district court’s decision was motivated by the
evidentiary gaps and inconsistencies in his claim. “While Petitioner’s evidence indicates that
[Hill] was a lone holdout against imposing the death penalty, it does not establish with any
degree of confidence that [Hill’s] holdout status was the motivating factor behind the decision of
the foreman to write the note to the judge about [Hill] or to testify that [Hill] was impeding
deliberations as opposed to the equally likely possibility that the foreman was motivated by
concern for [Hill’s] well-being . . . as well as the belief that [Hill] was not a capable juror.”
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development are unpersuasive, and its purported cure—considering the evidence—

did not actually eliminate the remaining prejudice. To the contrary, it was the

incomplete and inconsistent evidence that proved fatal. 7

        The prejudice flowing from the lack of factual development before the state

habeas court is apparent in the district court’s recognition that Henry’s

constitutional juror misconduct claim is “somewhat compelling.” Despite the fact

        7
         Accordingly, the Majority’s alternative position that, even if Henry was diligent, he
must show that the district court abused its discretion, is non-responsive. It is clear that if Henry
was diligent, he must show cause and prejudice for failing to develop the evidentiary record. See
Kelley, 377 F.3d at 1335; see also Williams, 529 U.S. at 435, 120 S. Ct. at 1489 (explaining that
§ 2254(e)(2) applies only to non-diligent petitioners). The Majority’s citation to Sibley v.
Culliver, 377 F.3d 1196, 1207 n.9 (11th Cir. 2004) is inapposite. In Sibley, this court reiterated
that § 2254(e) applies only where a petitioner has failed to develop the factual basis of a claim in
state court through lack of diligence, and concludes that petitioner’s claim of actual innocence is
not a “claim” within the meaning of § 2254(e). Id. It does not indicate that the standard of cause
and prejudice for diligent petitioners to obtain an evidentiary hearing articulated in Kelley and
Williams no longer applies. Based on this precedent, I do not see how the Majority can conclude
that even if diligent, Henry did not need to establish cause and prejudice to secure an evidentiary
hearing. One is left wondering, if the Majority is correct that cause and prejudice no longer
applies, what test should a district court apply for determining whether a petitioner is entitled to a
hearing to develop evidence on cause and prejudice to overcome procedural default? The
Majority says that test is abuse of discretion, but that is a standard of review, not a test for district
courts to apply. Thus, the test that applies, regardless of whether the hearing is to show a
substantive claim or to overcome default of that claim, is still cause and prejudice. The Majority
cites Schriro v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933 (2007), for the proposition that
petitioners seeking an evidentiary hearing must show abuse of discretion rather than cause and
prejudice for failing to develop the factual record. But Schriro simply confirms that when
reviewing a district court’s decision not to grant an evidentiary hearing, appellate courts must
review for abuse of discretion. See id. at 468, 127 S. Ct. at 1937 (applying an abuse of discretion
standard in reviewing whether the district court erred in denying the petitioner’s request for an
evidentiary hearing); Kelly, 377 F.3d at 1333–42 (applying the abuse of discretion standard in
reviewing the district court’s application of the cause and prejudice test). Instead of eliminating
the cause and prejudice test, Schriro merely clarified that proving the prejudice prong will be
more difficult in the wake of AEDPA because AEDPA makes it more difficult for petitioners to
prevail on the merits. See 550 U.S. at 473, 127 S. Ct. at 1939 (explaining that the “basic rule”
for granting an evidentiary hearing “has not changed” but that “AEDPA, however, changed the
standards for granting habeas relief”). Moreover, the Majority gives no reason to support its
assertion that the district court did not abuse its discretion.
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that Henry did not have the benefit of discovery, subpoena power, or compulsory

process, his evidence created a close constitutional call. Unlike the district court,

which at least thoroughly considered the insufficiently developed evidence as

proffer, the Majority completely ignores the evidence indicating a potential

constitutional violation. And there is no doubt, as the Respondent conceded at oral

argument, that if Henry could prove that Hill’s refusal to impose the death penalty

was a factor in her dismissal, the juror misconduct leading to her dismissal

constitutes a violation of Henry’s due process rights. See Green v. Zant, 715 F.2d

551, 556 (11th Cir. 1983) (confronting the precise issue of whether a juror had

been impermissibly dismissed due to her refusal to impose the death penalty and

concluding that “[c]ertainly it would violate a criminal defendant’s due process

rights were a court to dismiss a juror because of her refusal to impose the death

penalty in a given case”). Green is strikingly analogous, as the factual findings

there were also incomplete, prompting the court to explain that “[w]here facts

necessary to support a constitutional claim have not been adequately developed in

the state courts . . . a federal evidentiary hearing is necessary.” Id. at 557.

      Respondent has tried to distinguish Green, noting that in that case, the juror

was excused without speaking directly with the judge. However, although Hill

was brought in to speak with the judge in this case, there is evidence that the judge

was misled and lacked critical information at the time of Hill’s dismissal.

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Although the Majority omits this evidence, Hill specifically declared in her

affidavit that she could not share the full truth when she spoke to the trial judge:

      When I was called into the courtroom, I was surprised. It was full of
      people, the judge, the lawyers and others. I was confused by this
      because I thought I would be meeting privately with the judge. I
      realized I couldn’t tell the courtroom what was happening in the jury
      room. If I did, it would give the case away. I had wanted to talk
      privately with the judge because I believed the other jurors were
      violating the rules on how jurors must treat each other. I remember
      wanting to tell him that our deliberations were just like the movie,
      Twelve Angry Men. I know however from the judge’s instructions
      that I was not allowed to discuss what was going on with the case, but
      I thought that if we were alone, it would be ok to explain what was
      going on in the deliberation room. I never got the chance to talk with
      the judge in private.

Affidavit of Beth Hill, December 8, 2000, p. 7.

      In addition to Hill’s statement indicating that the trial judge was misled,

Henry offers other affidavits, which the Majority ignores, in support of his claim

that Hill’s status as the lone holdout against the death penalty was a factor in her

dismissal and thus his constitutional rights were violated. For example, Hill states

that when deliberations began, she was the lone juror who voted against imposing

the death penalty. She explained that she did not believe that Henry deserved the

death penalty because of his background and because she believed that he panicked

when Officer Ingram approached him. She stated that after explaining her

reasoning to the other jurors, “the jury room seemed to explode with angry voices,”

with some jurors verbally attacking her and accusing her of being a murderer,

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which precipitated her abdominal pains and visit to the hospital. She also

explained that the atmosphere was tense when she rejoined the rest of the jurors the

next morning.

      Thus, there is evidence showing that the other jurors were angered by Hill’s

opinion, but she did not have a chance to explain this to the judge. The jurors’ plan

to mislead the judge because of her opinion is also shown by juror Holland’s

statement that when Hill returned, she indicated that she was ready and able to

deliberate, but Holland explained that “[w]e all talked about it and decided that we,

as the jury, should inform the Judge of our concerns over her state of mind,

because she wasn’t going to vote for death, no matter what. I didn’t feel

uncomfortable talking about the case in front of her, but I knew that we would be

deadlocked if she stayed on the jury.” Jenny Ewing O’Brien also recalled a

conversation with juror Gant who explained that “[a]fter Ms. Hill was taken to the

hospital, the jury discussed what would happen next. They agreed that she would

not be coming back and that the alternate would be put in. . . . Mr. Gant thought he

was a reasonable man who they could work with.” Also, Gant noted that when the

jury learned Hill would be returning to deliberations, the foreman was displeased

and told the jury: “She is coming back with a mission. She is coming back to save

that boy’s life.” Rebecca Cohen also recalled another conversation with juror Gant

who stated that “[t]he jury agreed as a whole that they did not want to be

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deadlocked. To avoid this possibility, the jury decided that the foreman should

write a note to the judge explaining that if Beth Hill returned to the jury they would

never reach a verdict.” Jeffrey Ertel recalled a separate conversation with juror

Walker, who relayed that jurors may have gotten together in the hotel to discuss

Hill and may have written a note requesting that Hill be removed from the jury

because they were deadlocked.

      After the benefit of discovery and evidentiary development, the district court

may conclude that Henry’s evidence of juror misconduct is still insufficient.

However, it is premature to conclude that Henry cannot overcome the procedural

default without the benefit of a more developed record, especially when the district

court held that he was not entitled to an evidentiary hearing because, in part, his

evidence was insufficient to support his claim. The use of such circular logic to

conclude that Henry has not shown cause and prejudice constitutes an abuse of

discretion.

      I respectfully dissent.




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