                                      PUBLISHED

                                                              FILED: December 18, 2019

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                 ___________________

                                        No. 18-5
                               (1:08-cv-00271-TDS-JEP)
                                 ___________________

WILLIAM LEROY BARNES

             Petitioner - Appellant

v.

EDWARD THOMAS, Warden, Central Prison, Raleigh, North Carolina

             Respondent - Appellee

                                 ___________________

                                      ORDER
                                 ___________________

      The court denies the petition for rehearing and rehearing en banc.

      A requested poll of the court failed to produce a majority of judges in regular active

service and not disqualified who voted in favor of rehearing en banc. Chief Judge Gregory,

Judge Motz, Judge King, Judge Keenan, Judge Wynn, Judge Diaz, Judge Floyd, Judge

Thacker, and Judge Harris voted to deny rehearing en banc. Judge Wilkinson, Judge

Niemeyer, Judge Agee, Judge Richardson, Judge Quattlebaum, and Judge Rushing voted

to grant rehearing en banc.

      Judge Wynn submitted a statement concurring in the denial of rehearing en banc.
Judge Agee and Judge Wilkinson each submitted statements dissenting from the denial of

rehearing. These statements are attached to this order.

      Entered at the direction of Judge Floyd.

                                         For the Court

                                         /s/ Patricia S. Connor, Clerk




                                            2
WYNN, Circuit Judge, concurring in the denial of rehearing en banc:

       The question in this case is whether juror misconduct—seeking the religious advice

of a pastor about the death penalty during jury deliberations and then relaying that

communication to fellow jurors—had a substantial and injurious effect or influence on the

jury’s decision to impose the death penalty on Petitioner Barnes. The question is not what

legal standard applies. See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (“[W]e hold

that the Kotteakos [v. United States, 328 U.S. 750 (1946)] harmless-error standard applies

in determining whether habeas relief must be granted because of constitutional error of the

trial type.”). And the question is not whether this Court’s previous decision in Barnes’ favor

was incorrect. Barnes v. Joyner, 751 F.3d 229 (4th Cir. 2014) (hereinafter Barnes I). And

the question is not whether, systemically, federal courts grant too much habeas relief.

Habeas relief does not operate on a quota system.

       Again, to be absolutely clear: The question in this case is whether juror

misconduct—seeking the religious advice of a pastor about the death penalty during jury

deliberations and then relaying that communication to fellow jurors—had a substantial and

injurious effect or influence on the jury’s decision to impose the death penalty on Petitioner

Barnes.

       The facts show that it did.

       The panel majority opinion presented a compelling account of what transpired. In a

North Carolina court, a jury found Petitioner Barnes guilty of first-degree murder. Barnes

v. Thomas, 938 F.3d 526, 529 (4th Cir. 2019) (hereinafter Barnes II). At closing arguments

in the sentencing phase, an attorney representing a co-defendant argued that the jury, if it

                                              3
imposed the death penalty, would be judged by God for violating one of the ten

commandments, specifically, “Thou shalt not kill.” Id. (quoting J.A. 1532). One of the

jurors, Hollie Jordan, was offended by the argument and saw that another juror looked

upset. Id. at 530. After the first day of deliberations, before the jury had reached a decision,

Juror Jordan discussed the case—including a discussion of pictures of the crime scene—

with her pastor and asked if the jurors would “burn in hell” if they imposed a death

sentence. Id. at 531 (quoting J.A. 2269). She asked this question despite allegedly having

already decided to vote for the death sentence. 1 Id. at 532. The pastor replied that the jurors

would not burn in hell, gave her Bible verses to support his opinion, and told Juror Jordan

that the jurors “had to live by the laws of the land.” Id. at 531-32 (quoting J.A. 2271).

       The very next day, Juror Jordan spoke with her fellow jurors about her conversation

with the pastor. Id. at 532. She relayed to them that they would not “burn in hell,” and she

read the Bible verses her pastor had suggested. J.A. 2274. Another juror testified that she

thought Juror Jordan “was trying to convince someone to -- it was okay to give him the

death penalty.” 2 J.A. 2295. The jury subsequently voted to impose the death penalty.

       The unmistakable import of these facts is that Juror Jordan sought out her pastor’s


1
 There is some dispute whether Juror Jordan’s testimony that she was not asking her pastor
how to vote was admissible. Id. at 532, 535. As the panel majority opinion explains though,
crediting this testimony does not change the conclusion of prejudice here. Id. at 535. If
anything, it makes the conclusion inescapable.
2
  Juror Jordan herself previously indicated she intended to “remedy the effect of the
[defense counsel’s] argument.” Barnes I, 751 F.3d at 235 (quoting a summary of a 1995
interview with Juror Jordan, which was signed in 2000 by Juror Jordan as an accurate
description of what she said).

                                               4
opinions about the death penalty and then presented those opinions to her fellow jurors for

the purpose of influencing another juror’s vote. She solicited an authoritative outside

opinion about sentencing, and the pastor gave her one. The prejudice is clear and meets the

standard of “grave doubt” and “virtual equipoise.” Barnes II, 938 F.3d at 534, 536 (quoting

Lawlor v. Zook, 909 F.3d 614, 634 (4th Cir. 2018)).

       Nevertheless, the dissent contends that “the record here shows only a conversation

that did not touch upon Barnes’ guilt or the appropriate sentence.” Dissent of Agee, J., infra

at 14. The argument is that the pastor’s communication was “of such a neutral and

tangential nature to the issue before the jury that it could not have had an ‘injurious effect

or influence’ on the jury’s sentencing decision.” Barnes II, 938 F.3d at 540 (Agee, J.,

dissenting) (quoting Brecht, 507 U.S. at 627). This requires accepting that the conversation

about burning in hell for imposing the death penalty was not about the death penalty. See

Dissent of Agee, J., infra at 14 (“Nor is there any evidence that the pastor opined about the

morality of the death penalty generally . . . . [T]he conversation was limited to whether

serving on a jury faced with the decision between life imprisonment and the death penalty

may result in the juror ‘burn[ing] in hell.’” (quoting J.A. 2273)).

       Put simply, this part of the dissenting opinion’s analysis divorces answer from

question. The question of going to hell for imposing a sentence was not neutral and

tangential to sentencing. It was a question about sentencing. Thus, the pastor’s answer was

about sentencing.

       The dissenting opinion diverts attention from the natural reading of the pastor’s

answer by shifting focus to the pastor’s advice to “live by the laws of the land.” Barnes II,

                                              5
938 F.3d at 541 (Agee, J., dissenting) (“Instead, the pastor noted the Bible instructed

Christians to ‘live by the laws of the land.’” (quoting J.A. 2273)). The dissenting opinion

suggests this is comparable to a judge reiterating jury instructions, id. at 542-43 (citing

Crease v. McKune, 189 F.3d 1188, 1190, 1192-94 (10th Cir. 1999)), or to “a casual, time-

of-the-day greeting,” id. at 543 (quoting United States v. Day, 830 F.2d 1099, 1104 (10th

Cir. 1987)). But an instruction of a pastor to follow the law is not the same as the instruction

of a judge to follow the law. A judge who explains the felony murder rule to a juror, Crease,

189 F.3d at 1190, is a secular legal authority speaking on secular legal matter. A pastor

opining to a juror on the death penalty as it relates to God, the Bible, hell, and the “law of

the land” is a religious authority speaking on a mixed religious-secular legal matter. These

are not equivalent.

       Moreover, it is unclear on the record what the pastor meant by “live by the laws of

the land.” Juror Jordan testified that the pastor’s verses from the Bible “explained

everything.” J.A. 2271. Thus, to fully understand “live by the laws of the land,” we need

to know what else the pastor said. However, as the dissenting opinion rightly points out,

the evidence does not pincite which Bible verses the pastor used to clarify his meaning.

Barnes II, 938 F.3d at 541 n.5 (Agee, J., dissenting). But we do have information about

their substance.

       One juror recalled that one of the Bible passages that Juror Jordan read to the jury

concerned “eye for an eye and tooth for a tooth.” J.A. 2281. While we may not know

whether the verse came from the Old Testament or the New Testament, Barnes II, 938 F.3d

at 541 n.5 (Agee, J., dissenting), we do know that over twenty years later, the impact of the

                                               6
pastor’s curated verses was such that the part this juror remembered was “eye for an eye

and tooth for a tooth.” J.A. 2281. This statement suggests that equivalent retribution is the

measure of an appropriate sentence. Artificially isolating the phrase “live by the laws of

the land” to claim it impartially endorses North Carolina law ignores both the context of

the question asked and the limited evidence we have about the rest of the pastor’s answer.

No evidence in the record supports the dissenting opinion’s characterization that the

pastor’s views merely matched the laws of North Carolina and the jury instructions (which

Juror Jordan violated by speaking with him); we know that different religious authorities

interpret the same Biblical passages in different ways. “Live by the laws of the land,” like

the rest of the pastor’s comments, expresses an opinion—one incompletely explained in

the record but connected to “[an] eye for an eye”—about how the jurors should sentence

the defendants.

       Viewing the dissenting opinion as a whole—the way it splits the answer from the

question, the way it treats a pastor like a judge, the way it purports to interpret “live by the

laws of the land” without considering the accompanying gloss—the dissenting opinion

treats the opinions of the pastor as legal authority rather than religious opinion. This

approach might be understandable if prejudice could only be found on a material alteration

of the facts or law by which the jurors determine an issue. See Barnes II, 938 F.3d at 544

(Agee, J., dissenting). Misconduct involving an officer of the court likely affects such

matters. But this approach is unsound—as illustrated by this case—because, as the panel

majority opinion correctly states, “a prejudicial influence need not take the form of a third

party directly telling jurors how they should vote or introducing new facts or law for their

                                               7
consideration.” Id. at 536 (citing Turner v. Louisiana, 379 U.S. 466, 473-74 (1965)). By

making assumptions on this incomplete record that ignore the diversity of religious views

on the death penalty, and by not treating the pastor as a pastor, the dissenting opinion misses

the forest while looking for a perfectly archetypal tree.

       Ultimately, this case turned on the facts. On the facts, Barnes was prejudiced.

Accordingly, I concur in denying the petition for rehearing en banc.




                                              8
WILKINSON, Circuit Judge, with whom NIEMEYER, Circuit Judge, joins, dissenting
from the denial of rehearing en banc:

       I respectfully dissent from the denial of rehearing en banc for the reasons given so

well by Judge Agee. See Barnes v. Joyner, 751 F.3d 229, 253-66 (4th Cir. 2014) (Agee, J.,

dissenting) (“Barnes I”); Barnes v. Thomas, 938 F.3d 526, 536-48 (4th Cir. 2019) (Agee,

J., dissenting) (“Barnes II”). While this immediate appeal concerns a federal district court’s

determination regarding the existence vel non of actual prejudice, the panel decision

ultimately flows from an earlier judgment that abrogated what should have been the final

word of North Carolina’s state courts. As Judge Agee aptly explained in Barnes I, there is

not a colorable argument that the North Carolina Supreme Court decision as adopted by

the MAR court amounted to an “unreasonable application of[] clearly established Federal

law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

       Quite apart from the deference to state courts required under 28 U.S.C. § 2254(d),

the result reached here does not comport with our constitutional design. State courts are

obliged under the Fourteenth Amendment and Supremacy Clause to apply federal law.

Testa v. Katt, 330 U.S. 386, 394 (1947). But federal courts are obliged under the

rudimentary dictates of dual sovereignty to respect state court adjudications.

       That, I think, is the gist of the constitutional bargain. That, to me, is the essence of

our constitutional structure. To read the Suspension Clause in a manner at such perennial

odds with the comity envisioned for our federal and state systems is not right.

       Some time ago, Justice Paul Reardon of the Supreme Judicial Court of

Massachusetts regretted “the effect of Federal habeas corpus proceedings on State courts.”


                                              9
He lamented the “humiliation of review from the full bench of the highest State appellate

court to a single United States District Court judge” and how excessive federal habeas

powers contributed in his view to the “growing denigration of the State courts and their

functions in the public mind.” Address at the Annual Dinner of the Section of Judicial

Administration, American Bar Association, San Francisco, California, Aug. 14, 1972, pp.

5, 9, and 10.

       In some ways, the problem has only grown worse. The wound is only salted when

the rebuke to state judiciaries is administered by a federal appellate court under what is

supposed to be a deferential standard. It must be grating in the extreme to state judges, who

take their responsibility to apply federal law as solemnly as we do ours, to be upbraided as

“unreasonable” jurists. 28 U.S.C. § 2254(d)(1). This is not the first case to do so, nor will

it be by any means the last.

       But we would do well to reflect in medias res on how far we have strayed and how

much we have lost. Our Constitution, whether viewed originally or contemporaneously,

can only weep when a coordinate judicial system is rendered routinely subordinate, as has

happened here. AEDPA was meant to vindicate constitutional values but if AEDPA and

the Constitution are working as here at cross purposes, then Congress’s effort will go

increasingly for naught.

       Perhaps the relationship of federal and state courts should come down to the old

saying: I’m OK—You’re OK. It’s a needed maxim for our day and time. I regret the fact

that our fine court has passed up this opportunity to restore the constitutional, statutory,

and decisional respect that our state court colleagues are due.

                                             10
AGEE, Circuit Judge, with whom NIEMEYER, Circuit Judge, joins, dissenting from the
denial of rehearing en banc:

       I have twice previously expressed the reasons why William Leroy Barnes has failed

to satisfy the high burden a state prisoner faces to obtain relief under 28 U.S.C. § 2254.

Largely for the same reasons provided in the prior dissenting opinions, I now dissent from

the Court’s denial of en banc rehearing. See Barnes v. Thomas, 938 F.3d 526, 536 (4th Cir.

2019) (hereinafter Barnes II) (Agee, J., dissenting); Barnes v. Joyner, 751 F.3d 229, 253

(4th Cir. 2014) (hereinafter Barnes I) (Agee, J., dissenting). 1

       En banc rehearing was necessary to maintain uniformity with the Supreme Court

and this Court’s precedent concerning when a petitioner has demonstrated “actual

prejudice” resulting from an error alleged to have occurred during trial. Because the full

Court will not rehear the case, the panel majority’s decision stands, granting Barnes relief

despite his failure to come forward with any evidence that the error he complained of

actually prejudiced him.

       The facts are not in dispute. In 1992, a state jury sentenced Barnes and one co-

defendant to death and another co-defendant to life imprisonment for their roles in the

murders of an elderly couple. During closing arguments in the penalty phase, counsel for


1
  As explained in the Barnes I dissent, rehearing is also appropriate because the panel
majority incorrectly held as a threshold matter in the prior appeal that the state court’s
adjudication of Barnes’ claim was “contrary to, or involved an unreasonable application
of,” Remmer v. United States, 347 U.S. 227 (1954). 28 U.S.C. § 2254(d)(1); see Barnes I,
751 F.3d at 253–66; Joyner v. Barnes, 135 S. Ct. 2643 (2015) (Thomas, J., dissenting from
the denial of certiorari). Judge Wilkinson’s separate dissent from today’s denial of
rehearing discusses these important matters further and underscores how the Antiterrorism
and Effective Death Penalty Act of 1996 mandates federal respect for state court
adjudications.
                                              11
one of Barnes’ co-defendants urged the jury not to impose the death penalty because God’s

law prohibited capital punishment. Counsel elaborated that “true believer[s]” wanted God

to welcome them “into the Kingdom of Heaven” for having obeyed God’s commands, and

he cautioned that they could not justify before God their decision to kill another human

being just “because the laws of man said [they] could.” J.A. 2374. For reasons not

explained in the record, the State did not object and the court offered no instruction to the

jury concerning this argument.

       One evening during deliberations, a juror—Hollie Jordan—asked her pastor if the

Bible said that jurors would “burn in hell” if they imposed the death sentence. J.A. 2269.

The pastor told Jordan that the Bible taught that individuals should “live by the laws of the

land” and provided her with “some scriptures in the Bible” to support that view. J.A. 2271.

During the next day’s deliberations, Jordan shared this conversation with her fellow jurors

and read several of the Bible verses aloud. Neither Jordan nor the other two jurors who

testified at the evidentiary hearing (Ardith Peacock and Leah Weddington) could recall

which Bible verses were read. Jordan and Peacock testified that Jordan did not use this

information to support or oppose the death penalty, either generally or with regard to

Barnes and his co-defendants. Instead, they both characterized the discussion as affirming

that the jurors were “doing [their] duty” in assessing an appropriate sentence under North

Carolina law. J.A. 2291. Weddington was not asked about Jordan’s conversation with her

pastor, but was asked only whether she recalled Bible verses being read. When asked “what

might have prompted the juror – the female juror to bring the Bible into the jury room,”

Weddington responded, “I guess she was trying to convince someone to – it was okay to

                                             12
give [the defendants] the death penalty.” J.A. 2295 (emphasis added). This is the sum total

of the record.

       After showing the other requirements for § 2254 relief, a petitioner such as Barnes

must come forward with evidence that the complained-of error caused “actual prejudice.”

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In Brecht, the Supreme Court reiterated

that in the context of a habeas petition, “actual prejudice” means a showing that the error

“had substantial and injurious effect or influence in determining the” sentence. Id.; see

Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir. 2002) (noting that to be entitled to habeas

relief, the petitioner need to “demonstrate[] that the verdict was actually influenced by

improper external influence”); Tuggle v. Netherland, 79 F.3d 1386, 1393 (4th Cir. 1996)

(observing that in the context of an error during the penalty phase of a capital case, this

means showing that the error had a “‘substantial and injurious effect or influence’ . . . on

the jury’s decision to sentence [the defendant] to death”). The record Barnes developed

does not satisfy his burden to show that Jordan’s third-party communication with her pastor

had a “substantial and injurious effect or influence” on the jury’s decision to impose the

death penalty.

       Most significantly, the communication did not improperly taint any juror with the

pastor’s assessment of the proper punishment in this case. Not every improper

communication between a juror and non-juror will prejudice a defendant. Instead, courts

have looked to whether the communication exposes jurors to a non-juror’s opinion about

the defendant’s guilt or punishment. E.g., Parker v. Gladden, 385 U.S. 363, 363–65 (1966)

(per curiam) (concluding it would “blink[] reality not to recognize the extreme prejudice

                                            13
inherent” in a bailiff telling several jurors that the defendant was “wicked” and “guilty,”

and that the courts would “correct it” if the jury made a mistake in finding the defendant

guilty); United States v. Maree, 934 F.2d 196, 202 (9th Cir. 1991), abrogated on other

grounds by United States v. Adams, 432 F.3d 1092 (9th Cir. 2006) (holding that actual

prejudice was demonstrated where a juror “actively discussed” the case with her friends,

who “presented . . . strong opinions concerning the proper outcome of” the case). In

contrast to this kind of prejudicial third-party conversation, the record here shows only a

conversation that did not touch upon Barnes’ guilt or the appropriate sentence.

       Jordan stated without contradiction that she did not ask the pastor “about what to do

in the case,” nor did he provide any such opinion to her. J.A. 2272. There is no evidence in

the record that Jordan’s pastor offered an opinion as to Barnes’ guilt, whether he was

deserving of the death penalty, or about the case and the defendants in general. Nor is there

any evidence that the pastor opined about the morality of the death penalty generally, as

Jordan testified that her pastor did not discuss whether “the Bible supported [or] didn’t

support the death penalty.” J.A. 2273. Instead, the conversation was limited to whether

serving on a jury faced with the decision between life imprisonment and the death penalty

may result in the juror “burn[ing] in hell.” J.A. 2273. And the pastor’s response was limited

to sharing that the Bible instructed individuals to “live by the laws of the land” and

providing some verses in support of that principle. J.A. 2273.

       Given the limited nature of Jordan’s conversation with her pastor, it is unsurprising

that the testimony Barnes elicited regarding Jordan’s communication of that conversation

was similarly limited. Specifically, Barnes provided no evidence that Jordan shared her

                                             14
pastor’s views on the proper sentence in this case or about the pastor or Bible’s views on

the death penalty. Peacock expressly testified that Jordan did not use the pastor’s comments

or Bible verses to support or oppose the death penalty. Weddington’s testimony was even

hazier and limited to her recollection that a female juror read several unspecified Bible

verses during deliberations. And when asked what might have prompted Jordan to read the

Bible, Weddington “guess[ed] she was trying to convince someone . . . it was okay to give

him the death penalty.” J.A. 2295 (emphasis added). By the statement’s plain terms,

Weddington was “guess[ing]” about Jordan’s motive but offered no testimony about the

contents of what Jordan said that might support her speculation. Consequently,

Weddington’s statement is pure conjecture and cannot demonstrate that Jordan’s improper

communication with her pastor had a “substantial and injurious effect or influence” on

Barnes’ sentencing. 2

       Courts have held that a petitioner may be able to satisfy the Brecht standard when

the jury considers inculpatory evidence that was not presented at trial. See Sherman v.

Smith, 89 F.3d 1134, 1142–43 (4th Cir. 1996) (holding that the defendant failed to

demonstrate Brecht actual prejudice where a juror improperly took an unsupervised visit

to the crime scene principally because it was “cumulative” of evidence about the crime


2
  Even Weddington’s non-speculative testimony is limited to Jordan reading the Bible
during deliberations. And because she could not recall which verses were read or whether
they were from the Old or New Testament, this testimony is of no evidentiary value. To
the extent that Barnes and the majority suggest improper external influence from the mere
recitation or reading of the Bible during deliberations, the Supreme Court has never held
that to be improper or violate the defendant’s constitutional rights. Indeed, this Court has
previously denied § 2254 relief to a state prisoner who asserted his rights were violated by
such conduct. Robinson v. Polk, 438 F.3d 350, 366 (4th Cir. 2006).
                                            15
scene admitted at trial); see also Sassounian v. Roe, 230 F.3d 1097, 1108–12 (9th Cir.

2000) (holding actual prejudice was shown when jury considered a telephone call that had

not been discussed during the trial and which “directly related” to the defendant’s motive).

The third-party communication that occurred in this case did not improperly taint any juror

with extra-record evidence on which to base their decision. Barnes presented no evidence

that the pastor directly or indirectly exposed any juror to any new facts that bore upon their

decision of what sentence to impose.

       Further, the third-party communication in this case reinforced North Carolina law

regarding how jurors were to undertake their sentencing duty. In contrast to what occurred

here, courts have acknowledged that the Brecht standard may be satisfied if jurors consult

third-party sources that alter their understanding of the law and thereby materially change

the standard for assessing the prosecution’s burden. Accord Bauberger v. Haynes, 632 F.3d

100, 107 (4th Cir. 2011) (holding no actual prejudice arose when the jurors consulted a

dictionary to define several words used in the jury instructions because the definitions

“fully conveyed the essence of North Carolina law” and did not materially affect the

standard). Here, Barnes does not contend—nor could he—that jurors should not have

applied “the law of the land” when determining his sentence. The pastor’s communication

and Jordan’s reiteration of it reinforced the precise instruction the trial court had given to

the jurors about their duty to apply North Carolina law. As such, the communication did

not introduce an improper consideration into the deliberative process, nor did it expand the

circumstances in which the jury could lawfully impose the death penalty on Barnes.

Instead, the communication was neutral with regard to the deliberative choice before the

                                             16
jurors and mirrored the jurors’ instruction to follow North Carolina law. Accordingly, the

communication cannot be said to have had an “injurious” effect on Barnes’ sentencing.

       Lastly, other facts reinforce the conclusion that the communication did not have a

“substantial and injurious effect or influence” on the deliberative process. Significantly,

the jury returned a split sentencing decision, recommending that the two defendants

(including Barnes) who were identified as the individuals who shot the victims receive the

death penalty and that the other defendant, who did not shoot, receive life imprisonment.

This differentiation of the defendants during the same sentencing deliberation supports the

conclusion that the jurors understood their duty under North Carolina law to individually

assess the appropriate punishment for each of the defendants.

       Courts have also looked to the timing and duration of any error as part of the actual

prejudice assessment. See, e.g., Fitzgerald v. Greene, 150 F.3d 357, 366 (4th Cir. 1998);

Marino v. Vasquez, 812 F.2d 499, 506 (9th Cir. 1987). In this case, Jordan’s conversation

with her pastor lasted only a “few minutes” and she discussed that conversation during

deliberations for fifteen to thirty minutes during a multi-day deliberation. J.A. 2271. All

told, there is simply no evidence that the communications dominated the deliberative

process or otherwise occurred at a critical time. These additional factors bolster the

conclusion that the jurors decided on the appropriate sentence based on North Carolina’s

sentencing criteria, just as they should have.

       Despite Barnes’ failure to produce any evidence showing that Jordan’s

communication with her pastor satisfied the Brecht standard, the panel majority

nonetheless granted Barnes relief. It improperly concluded that the pastor’s communication

                                             17
with Jordan must have advocated in favor of the death penalty when no evidence—none—

exists to support that conclusion. The unrebutted testimony of Jordan and her two fellow

jurors demonstrates that the pastor relayed no personal views about the appropriate

punishment in this case nor did he directly or indirectly expose them to additional

arguments for or against the death penalty. The only evidence in the record concerning the

pastor’s communication is that it relayed the view that jurors “had to live by the laws of

the land.” J.A. 2271. A juror following that principle would still face the choice of which

sentence was appropriate under North Carolina law. In short, the communication could not

have had a “substantial and injurious effect or influence” because it was neutral as to an

appropriate punishment and reiterated the very instructions under North Carolina law given

by the trial judge.

       To correct the panel’s misapplication of Brecht’s actual prejudice standard, the

Court should have heard this case en banc. Therefore, I respectfully dissent. It will now be

the Supreme Court’s task to correct this error by reaffirming that the Court meant what it

said in Brecht and Remmer and that lower courts are not at liberty to deviate from that

precedent.




                                            18
