               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0349n.06

                                        No. 14-1040

                         UNITED STATES COURT OF APPEALS                           FILED
                              FOR THE SIXTH CIRCUIT                         May 08, 2015
                                                                        DEBORAH S. HUNT, Clerk
DAVID BALFOUR,                                )
                                              )
       Petitioner-Appellee,                   )
                                              )
v.                                            )    ON APPEAL FROM THE UNITED
                                              )    STATES DISTRICT COURT FOR THE
CAROL HOWES,                                  )    EASTERN DISTRICT OF MICHIGAN
                                              )
       Respondent-Appellant.                  )
                                              )
                                              )

BEFORE: GUY, COOK, McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. The state of Michigan appeals the district court’s order

granting David Balfour an unconditional writ of habeas corpus. The district court had first

issued a conditional writ ordering the state to conduct a Remmer hearing within 90 days or to

release Balfour. As the record shows, a timely Remmer hearing was held where Balfour and

the state were each given an opportunity to question the allegedly biased juror. Nevertheless,

the district court ordered Balfour released because certain witnesses were not called and

because Balfour was not represented by counsel. We reverse the district court because the

state cured the defect identified in the conditional writ—a due process violation stemming

from earlier denial of a Remmer hearing—and thus complied with the terms of the

conditional writ.
Case No. 14-1040, Balfour v. Howes

                                             I.

       David Balfour was convicted by a Michigan jury of first-degree murder and arson.

According to the trial evidence, Balfour gave his wife a lethal dose of morphine and then

burned their house down with his wife still inside. Balfour was sentenced to life without

parole on the murder conviction and a term of three to twenty years on the arson conviction.

       Balfour filed a motion for relief from the judgment in the state trial court, alleging

juror bias. Specifically, Balfour alleged that juror Julie Gunning had not informed the court

of her relationship with two prosecutors handling Balfour’s trial.       In support, Balfour

attached two affidavits: One from an investigative reporter, alleging the prosecutors had

been “in and out” of the courtroom during the domestic-assault trial of Gunning’s husband,

at which Gunning had testified, and that one of the prosecutors had employed Gunning’s

daughter as a family babysitter. The second affidavit came from Balfour’s lawyer, Rosemary

Gordon. In it, Gordon recalled overhearing the prosecutors tell a third prosecutor “they

weren’t going to tell anyone [about knowing Gunning] because she would be helpful to them

and if the defense counsels were too stupid to ask, they weren’t going to tell.” (R. 42, Page

ID # 4187.) The trial court denied the motion, citing an insufficient showing of prejudice.

The state court of appeals affirmed, People v. Balfour, 2003 WL 22443411 (Mich. Ct. App.

Oct. 28, 2003), and the state supreme court denied leave to appeal, People v. Balfour, 679

N.W.2d 59 (Mich. 2004).

       Balfour next filed a 28 U.S.C. § 2254 petition in federal district court. The district

court denied relief on all of Balfour’s claims but one: it found the state trial court had

unreasonably applied Remmer v. United States, 347 U.S. 227 (1954), when it rejected



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Case No. 14-1040, Balfour v. Howes

Balfour’s juror-bias claim without conducting an evidentiary hearing. The district court then

issued a conditional writ of habeas corpus, requiring the state to hold a Remmer hearing

within 90 days of the writ’s issuance or to release Balfour.

       Thereafter, Gordon filed a motion in the district court seeking to withdraw as

Balfour’s counsel and requesting appointment of new counsel for the Remmer hearing. The

district court denied the motion, reasoning that only a state court could appoint counsel for

the hearing. In the meantime, the state chose not to appeal the conditional order and held the

Remmer hearing on July 18, eleven days before the deadline. When Gordon failed to appear

at the hearing, Balfour addressed the court and requested appointment of counsel. The court

denied the request and the hearing commenced with Balfour proceeding pro se.

       Gunning took the stand and was questioned by the state, Balfour, and the judge. On

the stand, Gunning explained that although she remembered the prosecutors from her

husband’s trial, she did not have a personal relationship with them or anyone else in the

prosecutors’ office. She further explained that, in deciding Balfour’s guilt, she had only

considered the evidence presented at trial.      At the hearing’s conclusion, the trial judge

rejected the juror-bias claim, finding Gunning’s testimony to be credible.

       Balfour then returned to the district court and moved pro se for an unconditional writ.

In granting the unconditional writ, the district court reasoned that the state had held a “mere

pro forma hearing on the claim at issue” (R. 49, Page ID # 4287), pointing both to the refusal

to appoint counsel and to the failure to call the prosecutors at issue.

       The state now appeals the grant of the unconditional writ.




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Case No. 14-1040, Balfour v. Howes

                                                II.

       After issuing a conditional order of a writ of a habeas corpus, a district court retains

jurisdiction to determine whether the state has complied with its order. See Gentry v. Deuth, 456

F.3d 687, 692 (6th Cir. 2006). We have jurisdiction to review the district court’s determination,

a review which we conduct de novo. See Patterson v. Haskins, 470 F.3d 645, 668 (6th Cir.

2006) (citing 28 U.S.C. § 2253(c)(1)).

       Here, we hold that the state of Michigan complied with the district court’s conditional

writ ordering it to hold a Remmer hearing and that the district court’s ruling to the contrary was

in error. The terms of the conditional writ were as follows:

       It is hereby ORDERED that Petitioner be afforded an evidentiary hearing in
       the trial court to determine whether juror Julie Gunning was biased. The
       evidentiary hearing must be held within ninety (90) days from the entry of this
       order or ninety (90) days after any appellate review is final, whichever date is
       later. If the hearing is not held within that time, Respondent is ordered to
       release Petitioner from custody.

       On this record, it is clear the state held a hearing to determine whether Gunning was

biased, a hearing which it held eleven days before the conditional order’s deadline. It is also

clear that at the hearing, Balfour, the state, and the judge all had an opportunity to question

Gunning on her alleged bias and that, on the basis of Gunning’s testimony, the judge concluded

Gunning had not been biased by any prior relationship with the prosecutors.

       “[A] hearing with all interested parties permitted to participate” is what the Supreme

Court required in Remmer v. United States, 347 U.S. 227, 230 (1954), to comport with due

process. When the state conducted a hearing and permitted Balfour to participate, the state

served to remedy the due process violation identified in the writ and to comply with the terms of

the district court’s order. It was thus error to order Balfour released. See Gentry, 456 F.3d at

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Case No. 14-1040, Balfour v. Howes

692 (“If the state complies with [the district court’s] order, the petitioner will not be released; if

the state fails to comply with its order, release will occur.” (internal quotation marks omitted)).

       In its order, the district court explained it was releasing Balfour on two grounds: first, the

prosecutors were not called at the hearing and, second, the state court arguably did not follow its

own procedures requiring the appointment of counsel.               Neither ground implicates the

constitutionality of the Remmer hearing conducted.         While the state could have called the

prosecutors for questioning, the constitutionality of the Remmer hearing did not hinge upon the

prosecutors being called and questioned.1 As the Supreme Court held in Smith v. Phillips, 455

U.S. 209 (1982), the testimony of an allegedly biased juror is not inherently suspect but may be

credited by the trial court in determining whether the juror was biased. Id. at 217 n.7. And while

the state court might have violated its own procedures by failing to appoint counsel, a violation

of state procedure is not grounds for federal habeas relief as “it is not the province of a federal

habeas court to reexamine state-court determinations on state-law questions.”              Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991).2




       1
          Balfour contends that a constitutionally proper Remmer hearing necessarily includes the
defendant’s representation by counsel at the hearing. However, as the state correctly notes, the
Supreme Court has never recognized a right to counsel at Remmer hearings. See Appellant Br. at
25–26. And, in fact, the Supreme Court has held that no right to counsel attaches to post-
conviction proceedings. See Coleman v. Thompson, 501 U.S. 722, 752–53 (1991). As such, the
state court’s failure to appoint counsel did not render the Remmer hearing constitutionally
inadequate.
        2
          Though a state’s arbitrary application of its own procedural rule can, under certain
circumstances, be a constitutional due process violation, see Mack v. Caspari, 92 F.3d 637, 640
(8th Cir. 1996), neither Balfour nor the district court have suggested that Balfour’s due process
rights were violated by the failure to appoint counsel.

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Case No. 14-1040, Balfour v. Howes

                                              III.

       Because the state conducted a constitutionally adequate Remmer hearing and thus

complied with the district court’s conditional order, we REVERSE the decision to grant David

Balfour an unconditional writ of habeas corpus.




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