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                                                                                  [PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                 ________________________

                                        No. 11-14935
                                  ________________________

                            D.C. Docket No. 1:01-cv-01296-WBH



MARCUS A. WELLONS,

llllllllllllllllllllllllllllllllllllllllPetitioner - Appellant,

versus

WARDEN, GEORGIA DIAGNOSTIC
AND CLASSIFICATION PRISON,

llllllllllllllllllllllllllllllllllllllllRespondent - Appellee.

                                 ________________________

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

                                      (September 19, 2012)

Before DUBINA, Chief Judge, TJOFLAT, and WILSON, Circuit Judges.

WILSON, Circuit Judge:

         Marcus Wellons, a death row inmate, appeals the district court’s denial of
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his petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. In his

petition, Wellons contends that he was denied a fair trial by an impartial judge and

an unbiased jury, because the jury gave the judge and the bailiff inappropriate gag

gifts at the conclusion of the trial. Wellons also contends that there was racial

discrimination in the selection of the jury. We affirm the district court’s denial of

relief.

                                        I. History

A. Factual Background

          During the summer of 1989, Wellons lived with his girlfriend, Gail

Saunders, and her fourteen-year-old son in Saunders’s apartment. The son was

friends with fifteen-year-old India Roberts, who lived in the same apartment

complex. On August 30, 1989, Saunders ended the relationship with Wellons.

That night Saunders stayed with a friend and Wellons stayed in the apartment.

Over the course of the night, Wellons became distraught and unbalanced. He

desperately tried to reach Saunders by telephone. Wellons was angry because he

could not find her and began drinking heavily. He then destroyed Saunders’s

apartment and property and attempted to hide the destruction by calling 911 to

report a robbery.

          Several hours later, at approximately 8:00 a.m., India Roberts left her home
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to catch the school bus. Shortly thereafter, a neighbor heard muffled screams

coming from the Saunders’s apartment.

      Around 2:00 p.m., Wellons attempted to borrow a car from an acquaintance

who worked at a nearby grocery store. The acquaintance refused. Approximately

thirty minutes later, Theodore Cole, a retired military police officer, was driving by

a wooded area near Saunders’s apartment complex. Cole spotted in the distance a

person carrying what appeared to be a body wrapped in a sheet. He drove back to

the apartment complex and saw a man throw a sheet into the woods; Cole then

called 911. The police found India Roberts’s body near the location where Cole

had spotted the man in the woods. Cole positively identified Wellons as the man

he saw carrying the sheet. The police eventually found several items belonging to

India Roberts inside Saunders’s apartment.

B. Trial and Appeals

      Wellons was charged with the malice murder and rape of India Roberts.

During jury selection, the prosecutor used his peremptory strikes to remove three

of the four African Americans from the jury venire. Wellons objected, asserting

that the prosecutor had a race-based motive for removing the jurors in violation of

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1985). The race-neutral reason

proffered by the prosecutor was that the jurors were hesitant about their
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willingness to impose the death penalty, if necessary. The trial court found no

purposeful discrimination and overruled the objection to the peremptory strikes.

       During the trial, Wellons did not dispute that he murdered and raped India

Roberts; rather, he claimed he was either not guilty by reason of insanity or guilty

but mentally ill. However, Wellons did not present any mental health expert

testimony during the trial. The jury found Wellons guilty of malice murder and

rape. After finding two statutory aggravating circumstances, the jury

recommended that Wellons be sentenced to death for the murder, and life

imprisonment for the rape.

       During the post-trial interviews of the jurors, defense counsel learned that

some jurors gave gag-gifts to one of the bailiffs and the trial judge either near the

end of or immediately following the penalty phase. Specifically, some jurors gave

the Judge1 chocolate candy in the shape of a penis and Bailiff LP chocolate candy

shaped as female breasts. Counsel also learned that while the sequestered jurors

ate dinner at a local restaurant, the Judge spoke to them. Relying on this

information, Wellons moved for a new trial and recusal of the Judge. The court

denied both motions. During the state and federal proceedings, Wellons was never


       1
           We will refer to the state trial court judge who received the gift as “Judge,” and the
bailiff who received the gift as “Bailiff LP.” We will only use the jurors’ initials.
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given an evidentiary hearing regarding his claims of juror, bailiff, and judicial

misconduct.

      The Supreme Court of Georgia affirmed the state trial court’s Batson

decision and Wellons’s convictions and sentences. Wellons v. State, 463 S.E.2d

863 (Ga. 1995). After the Supreme Court of the United States denied certiorari,

Wellons v. Georgia, 519 U.S. 830, 117 S. Ct. 97 (1996), Wellons sought state

habeas corpus relief, which was denied in an unpublished order on July 20, 1998.

The Georgia Supreme Court, on January 9, 2001, denied Wellons’s application for

a certificate of probable cause to appeal. The Supreme Court of the United States

again denied Wellons’s petition for a writ of certiorari. Wellons v. Turpin, 534

U.S. 1001, 122 S. Ct. 476 (2001).

      On May 19, 2004, Wellons filed a § 2254 petition in the Northern District of

Georgia. The district court denied Wellons’s petition. A Certificate of

Appealability (“COA”) was granted on the claim of juror, bailiff, and judicial

misconduct, but no COA was grated on the Batson claim. On review we affirmed

the district court’s denial of Wellons’s petition. See Wellons v. Hall, 554 F.3d 923

(11th Cir. 2009), vacated, 558 U.S. ___, 130 S. Ct. 727 (2010) (per curiam). In

denying Wellons’s claim of jury, bailiff, and judicial misconduct, we found that

Wellons was not entitled to discovery or an evidentiary hearing because the
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decisions of the Georgia courts to not grant discovery were “based on adequate and

independent state law procedural grounds.” Id. at 935 (internal quotation marks

omitted). We also found that even if the claims were not procedurally barred “we

would not disturb the Georgia Supreme Court’s conclusions on the merits of these

claims.” Id. at 937–38. The Supreme Court granted Wellons’s petition for a writ

of certiorari, vacated our opinion, and remanded in light of Cone v. Bell, 556 U.S.

449, 129 S. Ct. 1769 (2009). Wellons, 558 U.S. ___, 130 S. Ct. at 732. We then

remanded the case to the district court so that the parties could conduct discovery

on the circumstances surrounding the alleged misconduct. Wellons v. Hall, 603

F.3d 1236, 1237 (11th Cir. 2010). The district court permitted discovery on the

claim of juror, bailiff, and judicial misconduct and carefully considered the new

evidence. In a thorough order, the district court denied relief. The district court

issued a COA on the misconduct claim, and we issued a COA on the Batson claim.

                               II. Standard of Review

      We review the district court’s denial of a petition for writ of habeas corpus

de novo. Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 687 (11th Cir. 2005).

We also review the district court’s conclusions of law and mixed questions of law

and fact de novo. Parker v. Head, 244 F.3d 831, 836 (11th Cir. 2001). Finally, we

review the district court’s factual findings for clear error. Id.
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      Wellons’s petition is governed by 28 U.S.C. § 2254(d), as amended by the

Antiterroism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-

132, 110 Stat. 1214 (1996). Under AEDPA, federal courts review state court

judgments utilizing a highly deferential standard. Jamerson, 410 F.3d at 687.

When a state court has adjudicated a claim on the merits, we can only grant relief if

that decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court” or if that decision

“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).

      A state court’s adjudication is contrary to federal law if it “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 Supreme] Court has on a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.

Ct. 1495, 1523 (2000). A state court’s adjudication is unreasonable if the state

court “identifies the correct governing legal principle from th[e] Court’s decisions

but unreasonably applies that principle to the facts of the prisoner’s case.” Id.

      In reviewing whether a state court’s decision was based on an “unreasonable

determination of the facts” under § 2254(d)(2), we presume the state court’s factual

findings are correct, and the petitioner has the burden to rebut those facts by clear
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and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell,

537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003). This statutory presumption of

correctness applies to the factual determinations of both state trial and appellate

courts. Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003).

                                  III. Batson Claim

      We begin with the Batson claim. In Batson, the Supreme Court held that the

prosecution violates the Equal Protection Clause when it strikes potential jurors

solely on the basis of race. 476 U.S. at 93–94, 106 S. Ct. at 1721–22. In Purkett v.

Elem, the Supreme Court summarized the three-step process required to establish a

claim under Batson. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770–71 (1995)

(per curiam). The first step requires the opponent of the peremptory challenge to

establish a prima facie case of discrimination. Id., 115 S. Ct. at 1770. The second

step shifts the burden to the proponent of the strike “to come forward with a race-

neutral explanation” for the strike. Id. The last step requires the trial court to

decide if “the opponent of the strike has proved purposeful racial discrimination.”

Id., 115 S. Ct. at 1770–71

      During voir dire in Wellons’s trial, the prosecution used peremptory strikes

to remove three of the four African-American jurors from the venire. Wellons

objected, and the prosecution explained that each of the three jurors was reluctant
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to impose the death penalty. The state trial court determined that Wellons failed to

establish purposeful discrimination and permitted the strikes. On direct appeal,

Wellons contended that the state’s reasons were pretextual because the state did

not strike Caucasian jurors who were just as reticent to impose the death penalty as

the struck African-American jurors. In rejecting Wellons’s contentions, the

Georgia Supreme Court found that “[t]he trial court’s determination that Wellons

failed to establish purposeful discrimination was not clearly erroneous” because

each of the Caucasian jurors who were not struck “also expressed moderate to

strong reservations about a mental health defense.” Wellons, 463 S.E.2d at 877.

Because Wellons relied upon a mental health defense at trial, it was reasonable for

the Georgia Supreme Court to find that “on balance, th[e Caucasian] jurors were

more favorable for the state than for the defense.” Id.

      We find that the Georgia Supreme Court’s adjudication of this claim was

neither contrary to nor an unreasonable application of clearly established Federal

law. The record shows that the prosecution struck four Caucasian and three

African-American jurors because they were not able to fairly consider or impose

the death penalty. The three African Americans that were struck were Ms. Fooster,

Ms. Stokes, and Mr. Fitzgerald. The four Caucasian jurors that were struck were

Ms. Cannon, Ms. Payne, Ms. Beard, and Ms. Whitaker. To show purposeful
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discrimination Wellons points to four hesitant Caucasian jurors that despite their

hesitancy about the death penalty were selected for the jury. Wellons specifically

cites to Juror DD, Mr. Anderson,2 Juror PS, and Juror MG.

      A. The Struck African American Jurors

               1. Ms. Fooster

      Ms. Fooster, after being asked several questions by the prosecution

regarding her belief about the death penalty, stated: “You know, you’re asking me

questions and I’m answering . . . But then sometimes you have to get to that point.

So I’m—I’m not sure if I’m making a clear statement.” The prosecutor then asked,

“In other words, it’s easy for us to ask these hypothetical questions now. But are

you saying that it would be difficult if you reached that point, and you don’t know

if your answer would be the same.” Fooster answered, “Yeah, that’s what I’m

saying.” [Resp’t. Ex. 8 at 254] Ms. Fooster, however, was unequivocal in her

belief that people could be rehabilitated and that mental health defenses should be

considered if properly presented by the defendant. [Resp’t. Ex. 8 at 258]

               2. Ms. Stokes




      2
          Mr. Anderson was not selected as a juror, because he was struck by the defense.

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      When the prosecutor asked Ms. Stokes if it would be difficult for her to

impose the death penalty, she stated “I don’t know. I might have a problem with it,

and I may not.” [Resp’t. Ex. 8 at 312] Ms. Stokes did state she had “mixed

feelings” about mental health defenses but also promised to keep an “open mind”

and consider all the evidence presented before making a decision. [Resp’t Ex. 8 at

326–27]

             3. Mr. Fitzgerald

      Mr. Fitzgerald stated that the death penalty was “not an easy thing for

anybody to decide on. It’s just the law.” [Resp’t. Ex. 10 at 981] He also believed

that people could be rehabilitated and that he would listen to any mental health

defenses presented. [Resp’t. Ex. 10 at 983–84]

      B. The Struck Caucasian Jurors

             1. Ms. Cannon

      Ms. Cannon used uncertain language in answering whether she could return

a verdict for the death penalty. For example she explained her views of the death

penalty as something she “would think more about” and “certainly wouldn’t just

jump to a conclusion.” [Resp’t. Ex. 8 at 451] She also could fairly consider any

mental health defenses. [Resp’t Ex. 8 at 454]

             2. Ms. Payne
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      Ms. Payne, in explaining her views of the death penalty, stated that she

considered life imprisonment to be just as horrible a penalty as death. [Resp’t Ex.

9 at 563] Ms. Payne also felt very strongly that there should be rehabilitation in

prison and that people could be rehabilitated. [Resp’t Ex. 9 at 594]

             3. Ms. Beard

      Ms. Beard explained her evolving views of the death penalty as “Well, . . .

several years back, [I] felt that maybe we did not have the right to make that

decision on capital punishment. Since then, I think I have become more

conservative, more law and order. . . [b]ut I still . . . am not a real strong believer in

it.” [Resp’t Ex. 10 at 764]

      C. The Hesitant Caucasian Jurors Who Were Selected

      The Caucasian jurors, who Wellons claims the prosecution did not strike

despite their hesitant answers regarding the death penalty, were more favorable to

the prosecution because they did not have a favorable view of mental health

defense. Juror DD stated that she had “mixed feelings” about the death penalty but

“believe[d] in it in certain circumstances.” [Resp’t Ex. 10 at 837] However, she

also “doubt[ed] that fifty percent of the people could be [rehabilitated].” [Resp’t




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Ex. 10 at 840–41]3 When asked if he could vote for the death penalty, Mr.

Anderson stated “I think I could, yes.” [Resp’t Ex. 10 at 1095] He also stated

that in some of the cases he heard about, he “really question[ed]” the defendant’s

plea of insanity, but “couldn’t pass judgment over [those cases]” without knowing

the facts. [Resp’t Ex. 10 at 1100] Juror PS unequivocally answered that he could

equally consider the death penalty as well as life and return a verdict for the death

penalty in open court. [Resp’t Ex. 10 at 1072] Juror PS also stated that he leaned

more towards believing mental health defenses being a “cop-out” but would still

fairly consider the evidence. [Resp’t. Ex. 10 at 1076] Although Juror MG stated

that the death penalty weighed “heav[il]y on [her] heart,” [Resp’t Ex. 10 at 943]

she described mental health defenses as “a bunch of bull.” [Resp’t Ex. 10 at 946]

       Considering this record, we cannot say that the Supreme Court of Georgia

unreasonably applied constitutional law, especially given the highly deferential

standard required by AEDPA. Jamerson, 410 F.3d at 687. The prosecution struck

both Caucasian and African Americans for giving equivocal answers regarding the

imposition of the death penalty. Furthermore, the few jurors that were hesitant

about the death penalty but were not struck by the prosecution felt strongly that


       3
         We note that after Juror DD was selected, she admitted to the Judge and counsel that
she did not think she could emotionally handle serving on the jury. The prosecution attempted to
have her removed from the panel, but the defense objected.
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mental health defenses were questionable, which was favorable for the

prosecution. Thus, it was also not unreasonable for the Georgia Supreme Court to

find that Wellons did not prove purposeful discrimination by the state. Thus, we

affirm the denial of habeas relief on this ground.

                 IV. Alleged Juror, Bailiff, and Judicial Misconduct

       A. Background

       The Supreme Court vacated our prior opinion and remanded this case back

to us, suggesting that “[t]he disturbing facts of this case raise serious questions

concerning the conduct of the trial.” Wellons 130 S. Ct. at 728. Consequently, we

remanded the case back to the district court for discovery and new consideration of

Wellons’s claims. On remand, the parties deposed ten jurors, the state court Judge

who presided at the trial, some of the Judge’s staff, and individuals from the Cobb

County Sheriff’s Office.4 The depositions focused on three major events: (1) the

encounter between the Judge and the jury during dinner, (2) the jury’s gift to the

Judge, and (3) the jury’s gift to Bailiff LP. We draw the remaining facts from the

Joint Stipulation of Facts Obtained Through Discovery filed by the parties after

discovery and the district court’s order below.


       4
         By the time discovery was conducted (about twenty years after the trial), two of the
jurors and one of the bailiffs had passed away.
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      During trial, a Major in the Sheriff’s Office was responsible for courtroom

security and for the jury. The bailiffs who worked for the Judge assisted the

Sheriff’s Office in supervising the jurors. During the guilt and penalty phases of

the trial, the jury was sequestered at a hotel, and two bailiffs stayed with the jurors

each night at the hotel. The jurors each had individual rooms without a television.

The jurors were permitted to watch television in a common room, which a deputy

sheriff controlled. The jurors were allowed to phone their families, but they did

not have any visitation with family. Some of the jurors’ family members came to

the trial and observed. The Major and at least two sheriff’s deputies accompanied

the jurors to breakfast and dinner each day. Dinner was usually at a local

restaurant chosen by the Major.

      Neither the Judge nor the Major have an independent memory of the

instructions that they gave their employees regarding their conduct with this

particular jury. The Judge and the Major generally instruct their bailiffs to not

speak with the jurors except to determine if they need something.

             1. The Encounter at the Restaurant

         During the trial, the Judge encountered the jury at dinner. Some of the

jurors have no recollection of the encounter. The Judge, Bailiff LP, and most of

the jurors testified that the Judge waived or nodded and made a brief comment.
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One juror recalls that the encounter occurred on the day the jurors saw the autopsy

photos, which had upset some of the jurors, and that the Judge commented that she

understood that the jurors were upset.

             2. The Gift to the Judge

      Of the ten jurors that were deposed, four did not learn about the

inappropriate gifts until 2010, and one was uncertain about when he first learned of

the gifts. Juror MH admitted to giving the Judge white chocolate in the shape of a

penis. She testified that she called her husband to request that her friend—who

owned a confectionary shop—make chocolate turtles for the jury. When Juror MH

received the box of turtles from her husband, Bailiff LP and Juror LH were

present. The friend, in addition to the turtles, included the white chocolate penis as

a gag gift to lighten things up. Juror MH also testified that the friend did not know

the facts of the case. Juror MH recalls that Bailiff LP told her that the Judge

wanted to see it.

      On the last day of the trial, Juror MH testified that she took the chocolate,

which was in a box and inside a bag, to the jury room. Juror MH gave the gift to

the Judge in the jury room, and the Judge slid the gift into her sleeve. Juror MH

also states that she tried to keep the gift a secret from the rest of the jury members.

Another juror has similar memories of the event, except that this juror does not
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recall how the Judge received the gift.

      Juror LH recalled that one of the other jurors knew someone who had a

bakery and that some of the jurors wanted to have her bake something for the

Judge. The jurors wanted to give a gift to the Judge because the Judge had been

very good about making sure the jurors’ needs were met during the trial. Juror LH

remembers that when the jurors were discussing what they could give to the Judge,

they were in a silly mood. Juror LH testified that someone mentioned baking the

Judge something in the shape of a penis, but Juror LH did not think any of the

jurors would actually go through with it.

      Juror PS recalls hearing about penis-shaped chocolate candy in the jury

room. He also recalls seeing a box in the jury room, but he did not see what was

inside the box. Juror PS assumed it was the gag gift because he heard someone say

“we got it.” He thought it was strange to give such a gift to the Judge. Juror PS

remembers seeing the Judge with the box on “her desk in the courtroom” when the

Judge thanked them for their service.

      Bailiff LP testified that Juror MH told her about the chocolate. The next

morning, Bailiff LP told the Judge about the chocolate and the Judge replied,

“weird.” Bailiff LP also remembers the jurors asking if she told the Judge about

the chocolate. Bailiff LP replied that she told the Judge and that the Judge just
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shrugged her shoulders and laughed it off. Bailiff LP stated that the Judge did not

ask to see the chocolate, and Bailiff LP testified that she did not tell the juror that

the Judge requested to see the chocolate. Because Bailiff LP had to leave prior to

the end of the trial to tend to her sick mother, she is not aware how the Judge

received the gift.

        The Judge testified that she first knew of the gag gift when someone on the

court staff gave it to her a day or two after the trial. She did not discuss the gift

and did not show it to anyone. She did not report it to counsel for the state or the

defense. She eventually threw it out.

              3. The Gift to the Bailiff

        Bailiff LP received an inappropriate gift of white chocolate in the shape of

female breasts from the jurors. Five of the jurors deposed knew nothing of the

chocolate breasts until 2010, and one juror could not recall when he heard of the

gift.

        After Bailiff LP returned from caring for her sick mother, the court clerk

gave her a box containing white chocolate breasts monogrammed “[Bailiff’s first

name]’s hooters.” Bailiff LP does not know who gave her the gift. She thinks that

the gift may been prompted by a discussion at dinner between two of the younger

male jurors. The two jurors were discussing how their grandmothers had ample
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chests and that when their grandmothers hugged them they felt they would be

suffocated. Bailiff LP then joined the conversation by lamenting the fact that she

would be remembered by her grandchildren for her ample chest. None of the male

jurors deposed recalled this conversation. Several of the jurors deposed recall

hearing about the chocolate breasts but did not recall ever seeing the gift. Juror

MH, who gave the gag gift to the Judge, knew nothing of the gift to Bailiff LP until

well after the trial.

       At some point after the trial, several of the jurors and their spouses had a

reunion. No one discussed either of the gifts at the reunion.

       B. Analysis

       Wellons asserts that this misconduct denied him his constitutional right to a

fair trial by an unbiased jury and an impartial judge. He cites several cases which

call into question the impartiality of the jury and the judge. The Constitution

affords defendants the right to an impartial jury and judge. Parker v. Gladden, 385

U.S. 363, 364, 87 S. Ct. 468, 470 (1966) (per curiam) (impartial jury); Tumey v.

State of Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 445 (1927) (impartial judge). Due

process requires “a jury capable and willing to decide the case solely on the

evidence before it, and a trial judge ever watchful to prevent prejudicial

occurrences and to determine the effect of such occurrences when they happen.”
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Smith v. Phillips, 455 U.S. 209, 217, 102 S. Ct. 940, 946 (1982). Without

condoning the regrettable behavior of either, we conclude that both the jury and the

Judge remained impartial and unbiased throughout the trial.

      1. Impartial Judge

      The Georgia Supreme Court denied an evidentiary hearing on this claim and

alternatively found that the Judge was not biased. Wellons, 463 S.E. 2d at 880

(“Assuming that the trial judge in fact encountered and spoke to the jurors in a

restaurant and that she and a bailiff were the passive recipients of gag gifts, there

was no basis for concluding that judicial bias existed.”). Therefore, we review the

state court’s adjudication under the exacting AEDPA standard. Even taking into

consideration the new facts found in discovery in the federal district court, nothing

in the record indicates that the Georgia Supreme Court’s alternative finding was an

unreasonable application of Federal law.

      Although ex parte communications between the judge and jury are improper

and the prejudice caused by such communications may mandate habeas relief, the

occurrence of an unrecorded ex parte communication, standing alone, does not

require that a conviction be overturned. See Rushen v. Spain, 464 U.S. 114, 118,

104 S. Ct. 453, 455–56 (1983) (per curiam) (holding that ex parte communication

between judge and juror is not per se prejudicial and noting that “[t]here is scarcely
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a lengthy trial in which one or more jurors do not have occasion to speak to the

trial judge about something, whether it relates to a matter of personal comfort or to

some aspect of the trial”). The Georgia Supreme Court correctly assumed the

Judge was only a passive recipient of a gag gift. Additionally the record does not

indicate that the Judge showed any partiality during the brief encounter at the

restaurant; rather, the record supports the state court’s finding that the Judge was

not biased. She was neutral during the short conversation at dinner and only noted

that seeing any autopsy photos would be upsetting. She did not give the jurors any

indication as to how this case should be decided. Thus, even an unrecorded ex

parte communication, such as this, is acceptable because it merely reflects the

“day-to-day realities of courtroom life” in which a juror has occasion to speak to

the judge regarding an aspect of the trial. Spain, 464 U.S. at 119, 104 S. Ct. at 456.

      The interaction between the Judge and the jury—the brief encounter at a

restaurant and a gag gift—is starkly different from the cases that Wellons contends

require us to reverse the district court’s decision. First, Wellons cites to Tumey.

There a judge received payment for his time only if the defendant was convicted.

273 U.S. at 523, 47 S. Ct. at 441. Because the judge there had “a direct personal

pecuniary interest in convicting the defendant who came before him for trial,” the

Supreme Court found that the judge could not be impartial. Id. at 523, 47 S. Ct. at
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441. Tumey is not instructive because the Judge here had no interest whatsoever in

the outcome of Wellons’s trial. Wellons also cites to Edwards v. Balisok in which

a hearing officer was accused of intentionally suppressing evidence of innocence.

520 U.S. 641, 647, 117 S. Ct. 1584, 1588 (1997). Edwards is also not instructive

because there is no indication here that the Judge attempted to suppress evidence of

Wellons’s innocence.

       The record here does not support the contention that the Judge had any direct

personal interest in the outcome of Wellons’s trial or that the Judge attempted to

sway the jury. We cannot say on this record that there was a demonstration of

impartiality on the part of the trial judge. Therefore, we find that the Georgia

Supreme Court reasonably found that the Judge was not biased and affirm the

district court’s denial of habeas relief.

       2. Impartial Jury5

       As was noted earlier, this appeal comes to us with an unusual procedural


       5
          Wellons also discusses the fact that the sister of one of the jurors had been murdered
eight years before Wellons’s trial. This information was fully disclosed by the juror during voir
dire, and Wellons did not object to the juror serving on the panel. [Resp’t. Ex. 10 at 833–34]
Wellons claims that this information further shows that the jury was biased against him and
fleetingly mentions an ineffective assistance of counsel claim in his brief. Wellons was not
granted a COA on an ineffective-assistance claim, and to the extent that Wellons now attempts to
raise any issue that could arise from this juror’s service on the panel, we agree with the district
court that the issue is unexhausted and procedurally barred. See Duncan v. Henry, 513 U.S. 364,
365, 115 S. Ct. 887, 888 (1998) (per curiam).
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history. After discovery, it became apparent that Wellons could make a debatable

claim that the jury was not impartial. Given the posture in which this evidence

came to light, the Georgia courts never had an opportunity to review this claim.

After Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388 (2011), it is unclear how

federal courts should treat newly discovered evidence presented for the first time in

federal court. See Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2011) (staying the

federal habeas action to permit petitioner to present the claim to state court); id. at

999–1017 (Fletcher, J., concurring in part) (finding that the federal court could

adjudicate the claim de novo with new evidence considered); id. at 1017–21

(O’Scannlain, J., dissenting in part) (explaining that Pinholster forbids

adjudication of the claim); see also Pope v. Sec’y for Dep’t of Corr., 680 F.3d

1271, 1294 n.16 (11th Cir. 2012) (noting that neither the Supreme Court nor the

Eleventh Circuit has decided what standard of review applies “to evidence properly

developed in a federal hearing”). We need not weigh in on this debate because

even considering the evidence and conducting de novo review, we still find that

Wellons is not entitled to relief. See Berghuis v. Thompkins, 560 U.S. ___, 130 S.

Ct. 2250, 2265 (2010) (permitting denial of “writs of habeas corpus under § 2254

by engaging in de novo review when it is unclear whether AEDPA deference

applies”).
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      Wellons relies on several cases calling into question the impartiality of a

jury that is exposed to extrinsic evidence or contacts. “The jury is an essential

instrumentality—an appendage—of the court, the body ordained to pass upon guilt

or innocence. Exercise of calm and informed judgment by its members is essential

to proper enforcement of law.” Turner v. Louisiana, 379 U.S. 466, 472, 85 S. Ct.

546, 549 (1965) (quoting Sinclair v. United States, 279 U.S. 749, 765, 49 S. Ct.

471, 476 (1929)). A jury must base its verdict upon the evidence presented at trial.

Turner, 379 U.S. at 472, 85 S. Ct. at 549; see also Mattox v. United States, 146

U.S. 140, 149, 13 S. Ct. 50, 53 (1892) (finding it “vital in capital cases that the jury

should pass upon the case free from external causes tending to disturb the exercise

of deliberate and unbiased judgment”). The defendant has the burden to show that

the jury was exposed to external evidence. United States v. Ronda, 455 F.3d 1273,

1299 (11th Cir. 2006) (citing Remmer v. United States, 347 U.S. 227, 229, 74 S.

Ct. 450, 451 (1954)). Once the defendant has established the exposure, the state

has the burden to show that the exposure “was harmless to the defendant.”

Remmer, 347 U.S. at 229, 74 S. Ct. at 451.

      The record establishes that the unfortunate giving of these tasteless gifts was

nonetheless inconsequential to the verdicts, and otherwise played no part in the

judge’s or jury’s consideration of the case. The two gifts were given independent
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of each other, given at the conclusion of the trial, and none of the jurors testified

that the gifts were based on anything that occurred during trial. Furthermore, at

most only a few of the jurors were involved in giving the tasteless gifts. None of

the jurors testified that the gifts bore any relation to their decision to find Wellons

guilty of murder and rape, and they testified that the gifts did not affect their

decision to impose the death penalty.

      Wellons attempts to draw parallels to several cases in which the jury had

inappropriate contacts with bailiffs, but his reliance on these cases is misplaced. In

Turner, the two deputy sheriffs who watched the jurors during trial were also the

key witnesses in the defendant’s trial. 379 U.S. at 473, 85 S. Ct. at 550. The jury’s

close contact with two key witnesses was deemed inappropriate, especially given

that the deputy sheriffs’ credibility was a determining factor during trial. Id. In

Parker, a bailiff made comments to a juror that the defendant was guilty and that if

there was any error in the verdict that the Supreme Court would fix the error. 385

U.S. at 363–64, 87 S. Ct. at 470. The Court reversed the conviction after finding

that the statements denied the defendant his right to an impartial jury and that the

statements prejudiced the defendant. Id. at 364–65, 87 S. Ct. at 470–71.

      The contact between Bailiff LP and the jury in this case is a far cry from

Turner and Parker. The record establishes that the conversation between Bailiff
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LP and the jurors was not pertinent to the issues presented at trial. The

conversation with Bailiff LP about grandmothers’ bosoms could not plausibly

affect the jury’s thoughts on Wellons’s guilt. Thus the record supports the Georgia

Supreme Court’s assumption that Bailiff LP was only a passive recipient of a

tasteless gag gift. See Wellons, 463 S.E.2d at 880.

                                    V. Conclusion

      We do not condone the acceptance of gifts, de minimus though they may be,

by judges or bailiffs during any trial—criminal or civil. Nor do we condone the

giving of gifts by the jury to the presiding judge or bailiff during any trial. Trial

judges are expected to properly handle these situations, sternly admonish or

discipline those involved, and disclose such occurrences to each party so that

timely objections can be considered and made. The Judge here neglected to take

such steps. Only because we have no doubt that the gifts did not factor into the

judge or jury’s ultimate consideration of the case are we able to affirm the denial of

habeas relief.

      We also acknowledge that the ill-advised actions of a few thoughtless jurors

could create the perception that this jury was too busy joking around rather than

deciding Wellons’s fate. But these were two isolated incidents in the span of a

multi-week trial and we cannot say, on the basis of this record, that the verdicts
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were tainted.

          We put a heavy burden on the twelve men and women of a jury when we

take them away from their jobs, families and lives, summon them to the

courthouse, sequester them, and ask them to decide whether a person charged with

a capital crime should be put to death. Although they were intended to bring a

moment of levity to a serious and somber occasion, the gifts were tasteless and

inappropriate. But we are unable to conclude that this conduct amounts to juror or

judicial misconduct of sufficient constitutional magnitude to warrant habeas corpus

relief.

          The jurors’ testimony further supports the belief that Wellons was given a

fair trial by an impartial jury.6 One of the jurors, after hearing the news reports of

the gag gifts, began to weep “because [she] just couldn’t believe that because we

tried so hard to be so fair and so reverent about this whole thing.” Several other

jurors testified that their time on the jury was overwhelming and painful. Another

juror described how the jury felt after they decided Wellons’s sentence:

          What most people don’t know is that when the decision was made and
          before we went out into the courtroom, it was about an hour that went by.
          And everybody was so shook at the idea of giving somebody a death penalty
          that we just stayed in there and held one another for one solid hour. And if

          6
        We note that counsel properly conducted the depositions and did not ask the jurors how
they made their decisions. See Tanner v. United States, 483 U.S. 107, 107 S. Ct. 2739 (1987).
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      anyone thinks that, despite the stupidity of [some] of the jurors, that this
      wasn’t well thought out, then they got something else to think about. It
      was—it wasn’t easy to go and take that upon yourself and say you’re
      responsible. I don’t care how much you kid about the word death. It’s
      something else when you’re making a mark on somebody else’s life. And
      then we went out, and we held hands. But when I watched each one of the
      jurors stand up and say that that was their vote, those are the strongest voices
      you’ve ever heard. There wasn’t anybody acting like they were pushed or
      whatever because it was 100 percent.

      Wellons’s claims have been seriously and thoroughly considered by state

and federal courts at every level. The district court’s denial of habeas relief is

affirmed.

      AFFIRMED.




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