                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 05-13



DAVID CLAYTON LYNCH,

                                                Petitioner - Appellant,

           versus


MARVIN POLK, Warden, Central Prison, Raleigh,
North Carolina,

                                                 Respondent - Appellee.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CA-02-365-3-V)


Argued:   September 18, 2006                 Decided:   November 2, 2006


Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Michael wrote the opinion,
in which Judge Niemeyer and Judge Motz joined.


ARGUED: Matt C. Stiegler, ACLU CAPITAL PUNISHMENT PROJECT, Durham,
North Carolina, for Appellant.    Valerie Blanche Spalding, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.   ON BRIEF: Mark Melrose, MELROSE, SEAGO & LAY, P.C.,
Sylva, North Carolina, for Appellant. Roy Cooper, Attorney General
of North Carolina, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
MICHAEL, Circuit Judge:

          David Lynch was convicted in North Carolina of two counts

of first-degree murder, five counts of assault with a deadly weapon

upon a law enforcement officer, three counts of assault with a

deadly weapon with intent to kill inflicting serious injury, six

counts of discharging a firearm into occupied property, two counts

of injury to real property, and seven counts of injury to personal

property. He was sentenced to death for each murder conviction and

to seventy-eight and one-half years’ imprisonment for the other

convictions.   Lynch has petitioned for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 on the grounds that his Fifth and

Sixth Amendment rights were violated (1) when the prosecutor made

inflammatory comments during closing argument in the guilt phase of

his trial and (2) when the jury foreperson read from the Bible

during the penalty phase.   The district court denied his petition,

and we affirm.   The state courts did not make an unreasonable

determination of either claim. See 28 U.S.C. § 2254(d). Moreover,

we have concluded independently that the prosecutor’s improper

comments at closing did not render Lynch’s trial fundamentally

unfair.




                                 3
                                 I.

          David Lynch was arrested after he killed two persons and

wounded several others in an extended shooting spree in Gaston

County, North Carolina.   He confessed to his crimes, including the

two murders.   The following facts are not in dispute.   On December

9, 1991, Lynch got out his .223-caliber rifle, .308-caliber rifle,

.45-caliber automatic pistol, and 1,250 rounds of ammunition and

placed them next to his bedroom window.   He lined his bedroom walls

with mattresses, pushed the refrigerator against the front door,

and wedged the kitchen stove and washing machine against the back

door.   He then “nailed all the windows shut that [he] knew [he]

would not be shooting from.”     Trial Transcript (T.T.), May 13,

1993, at 726 (Lynch’s statement to the police).    After completing

these fortifications, Lynch returned to the bedroom, sat down in

the middle of the floor, and “waited for [his neighbors] the

Andersons to come out.”   Id.

          At 8:00 a.m. Tammy Anderson left her house with her

twelve-year-old daughter, India, and Heather Shumate, the daughter

of a friend.   Lynch attempted to open fire, but his rifle jammed.

By the time he reloaded, Mrs. Anderson and the two girls had

entered the family car.   Lynch decided to shoot at the car, hoping

the occupants would “get out and see what happened.”       Id.   His




                                 4
scheme worked, and he opened fire on the three as they left the

car.    Lynch said,

       I shot Mrs. Anderson first, and then I shot [India]. I
       don’t know how many times I shot them; but after I shot
       the mother a couple of times, the daughter started
       running to the house. So I shot the mother a couple more
       times, and then I shot the daughter at least two or three
       times.

Id.    A neighbor, Ronald Hunter Sr., heard the shooting and rushed

outside to try to help the victims.       Lynch immediately shot Hunter

in the back and then continued to shoot him after he fell to the

ground.    Mrs. Anderson and Heather fled back into the Anderson

house, where Mrs. Anderson called 911.       While Mrs. Anderson was on

the telephone, Lynch fired into the house, killing Bobby Anderson,

the father.   Meanwhile, the wounded Mr. Hunter made it out into the

street where India lay and attempted to pull her to safety.         Lynch

fired at the two, hitting them both.       Mr. Hunter collapsed, losing

consciousness.    India’s wounds were fatal.

            Police officers soon arrived at the scene, and Lynch

began    firing   on   them,   injuring   several.    A   police   crisis

negotiator, Sergeant James Edwards, was called in to talk with

Lynch.    Edwards reached Lynch by telephone, and Lynch said he was

suffering from mental problems.           Lynch also explained that he

wanted to kill the Andersons because they played loud music and had

parties.   After two and one-half hours, Lynch surrendered.        At the



                                     5
station Lynch told police that he was very depressed and had

recently driven to Seattle to commit suicide. He then decided that

instead of killing himself, he would kill the people who had been

bothering him.    Lynch admitted that he knew what he had done was

wrong, but said “they needed to die.”        J.A. 645.

            Lynch asserted the defense of insanity at trial.            Two

defense experts (a psychologist and a psychiatrist) testified that

Lynch suffered from mental diseases, including major depression and

schizotypal personality disorder, which caused him to lose touch

with reality.     Both experts offered the opinion that Lynch could

not understand the nature and quality of his acts on the day of the

murders. The prosecution responded with an expert psychiatrist who

testified that he did not detect any evidence of psychosis during

his examination of Lynch.      This expert did not opine on Lynch’s

mental state on the day of the shootings.           The prosecution also

presented   the   testimony   of   several   of   Lynch’s   coworkers   and

friends, who all testified that Lynch did not appear to be insane

during the weeks leading up to the shooting.

            The jury determined that Lynch was not legally insane at

the time of the murders and found him guilty of two counts of

first-degree murder and twenty-one counts charging lesser offenses.

The jury recommended the death penalty for each murder, and the

trial court sentenced Lynch to death.

                                     6
             Lynch’s convictions and sentences were affirmed on direct

appeal to the North Carolina Supreme Court, and the U.S. Supreme

Court denied his petition for a writ of certiorari.                          Next, Lynch’s

(post-conviction) motion for appropriate relief (MAR) was denied by

the North Carolina trial court, and the State Supreme Court denied

review of the MAR claims.            Lynch’s application for federal habeas

relief was likewise denied by the U.S. district court, and two of

his   claims     are    now    before     us       pursuant       to   certificates     of

appealability.



                                          II.

             Lynch first contends that the prosecutor’s prejudicial

remarks during closing argument rendered his trial fundamentally

unfair, in violation of his Fifth Amendment rights.                            Second, he

contends that the foreperson’s reading of a biblical passage during

the jury’s sentencing deliberations violated his Sixth Amendment

rights.

              The North Carolina courts decided these claims on the

merits, and under the Anti-Terrorism and Effective Death Penalty

Act     we   review    these    decisions          under     a    “highly     deferential

standard.”       Woodford      v.    Viscotti,       537     U.S.      19,    24   (2002).

Accordingly, a writ of habeas corpus cannot be granted unless the

state    court    decisions         “w[ere]       contrary       to,   or    involved   an

                                              7
unreasonable application of clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1), or “w[ere] based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2).        “[W]e presume the [state] court’s

factual findings to be sound unless [the petitioner] rebuts the

‘presumption of correctness by clear and convincing evidence.’”

Miller-El v. Dretke, 545 U.S. ___, 125 S.Ct. 2317, 2325 (2005)

(quoting 28 U.S.C. § 2254(e)(1)).         If legal or factual error of the

degree specified in § 2254(d)(1) or (d)(2) occurred, then a federal

court has the obligation to conduct an independent review of the

petitioner’s claims to determine whether the issuance of a writ is

warranted.    Rose v. Lee, 252 F.3d 676, 690 (4th Cir. 2001).



                                    III.

            Lynch   argues   that   the    prosecutor’s   inflammatory   and

prejudicial remarks during closing argument rendered his trial

fundamentally unfair, in violation of the Fifth Amendment.                In

rebuttal argument the prosecutor said that if the jury found Lynch

not guilty by reason of insanity, there would be “no restrictions”

upon him.     Lynch claims that the jury was never instructed to

disregard the statement, even though it was contrary to North

Carolina law.   (If the jury had found Lynch to be insane, he would

                                      8
have been committed immediately to a mental health institution, and

he could have been released only by proving in court that he was no

longer mentally ill or a danger to others.                  See N.C.G.S. §§ 15A-

1321,    122C-277(b1),      122C-268.1(i).)         According        to   Lynch,   the

prosecutor’s “no restrictions” statement created a misguided fear

on the part of the jury that led it to disregard compelling

evidence of his insanity.

             The North Carolina Supreme Court rejected Lynch’s unfair

trial claim, reasoning as follows:

             We conclude that in this case the trial court
        properly controlled the prosecutor’s closing argument so
        as to avoid any prejudicial error to the defendant.
        During the prosecutor’s closing arguments the trial court
        intervened ex mero motu and specifically instructed the
        jury not to take the prosecutor’s personal opinions into
        consideration. The jurors were also instructed to
        disregard statements by the prosecutor that defendant
        would be under no restrictions if found not guilty
        . . . . Based on our careful review of the prosecutor’s
        closing argument and the instructions given by the trial
        court during the closing argument, defendant’s assignment
        of error is overruled.

State v. Lynch, 459 S.E.2d 679, 692 (N.C. 1995).



                                     A.

             According to Lynch, the North Carolina Supreme Court’s

decision     was    based     on    the       court’s   unreasonable         factual

determination      that   Lynch’s   “jurors      were   .    .   .   instructed    to

disregard statements by the prosecutor that [Lynch] would be under

                                          9
no restrictions if found not guilty” by reason of insanity.          Id.

Lynch says that the following excerpt from the closing argument

transcript reveals the state court’s error:

          [PROSECUTOR]: Ladies and gentlemen, the last point
     I am going to make. Think about this. Are you satisfied
     that he was insane on December 9, 1991. [sic] The state
     submits to you that you are not.        If you are even
     thinking about it, remember this. Not guilty by reason
     of insanity is not guilty. Oh, it has a little bit more
     wording there but the effect is not guilty. When you say
     not guilty you are saying that no crime was committed.
     You are saying David Lynch —

          [DEFENSE COUNSEL]:   (Interrupting) - OBJECTION to
     that argument

          THE COURT:   OVERRULED

          [PROSECUTOR]:   You are saying David Lynch didn’t
     kill and assault. Are you satisfied? When you say not
     guilty that means there are no restrictions on Mr. Lynch.

          [DEFENSE COUNSEL]:   OBJECTION

          THE COURT:   SUSTAINED.       Well, OVERRULED as to that
     statement.

          [PROSECUTOR]: No restrictions.          Perhaps some day
     he becomes your neighbor.

          [DEFENSE COUNSEL]:   (Interrupting) - OBJECTION

          THE COURT:   SUSTAINED.       Stay within the bounds of
     argument.

          [DEFENSE COUNSEL]: Ask the Court to instruct the
     jury to disregard the last statement.

          THE COURT: ALLOWED. Members of the jury, do not
     take the last statement of the district attorney in
     consideration in your jury deliberations.



                                   10
Closing Argument Transcript at 237-38.

            Lynch argues that in light of the trial court’s initial

approval    of   the   “no   restrictions”   statement,   the   court’s

instruction to the jury moments later to disregard “the last

statement” referred only to the “your neighbor” sentence.        It did

not, he says, refer to the “No restrictions” sentence.             This

reading is a plausible one, but it is not the only reasonable

reading.    The word “statement” commonly refers to more than one

sentence.    Thus, it was not unreasonable for the North Carolina

Supreme Court to find that when the trial court used the term “last

statement,” it was instructing the jury to disregard all of what

the prosecutor had just said, specifically, “No restrictions.

Perhaps some day he becomes your neighbor.”

            In any event, a final curative instruction made it

reasonable for the North Carolina Supreme Court to find that the

trial court instructed the jury to disregard the prosecutor’s “no

restrictions” argument.      Defense counsel made his request for this

instruction as follows:

          [DEFENSE COUNSEL]:     I am requesting that you
     instruct the jury that if they return verdicts of not
     guilty by reason of insanity that “The defendant shall
     immediately be committed to the state mental facility;
     any further proceedings would be a matter for the Court
     and should not concern you.”      . . . We are simply
     requesting that [instruction] because of the comments of
     the state district attorney during the final argument
     that words to the effect of -- “If you find him not

                                   11
     guilty by reason of insanity there would be no
     restrictions on the defendant,” which we OBJECTED to and
     made a motion for a mistrial. Of course, the objection
     was overruled and the motion for mistrial was denied. We
     feel that this is sufficient to tell the jury a correct
     statement of the law . . . to counter that statement by
     the state that he would be unrestricted.

T.T., May 17, 1993, at 534 (emphasis added).   The trial court gave

the curative instruction exactly as requested by Lynch’s counsel,

who considered the instruction to be sufficient to counter the

prosecutor’s “no restrictions” remark.     The State Supreme Court

therefore did not err in finding that the jury was “instructed to

disregard statements by the prosecutor that [Lynch] would be under

no restrictions if found not guilty [by reason of insanity].”

Lynch, 459 S.E.2d at 692.   Accordingly, the state court’s decision

that the prosecutor’s closing argument did not render Lynch’s trial

to be unfair was not based on an unreasonable determination of the

relevant facts.

          The district court’s denial of habeas relief to Lynch on

his unfair trial claim can be affirmed because he has failed to

demonstrate that the North Carolina Supreme Court’s decision was

based on an unreasonable determination of fact.




                                 12
                                      B.

            In the alternative, our independent review of the Fifth

Amendment claim reveals that the prosecutor’s “no restrictions”

comments did not render Lynch’s trial fundamentally unfair.

            In analyzing “a due process claim premised on unfair

prosecutorial conduct,” we examine several factors, including “the

nature of the prosecutorial misconduct, the extent of the improper

conduct, the issuance of curative instructions from the court, any

defense conduct inviting the improper prosecutorial response, and

the weight of the evidence.”         Humphries v. Ozmint, 397 F.3d 206,

218 (4th Cir. 2005) (en banc) (internal citations omitted); see

also Darden v. Wainwright, 477 U.S. 168, 181 (1986) (stating that

the relevant question is “whether the prosecutors’ comments ‘so

infected    the   trial   with    unfairness    as    to    make    the   resulting

conviction a denial of due process’”).           These factors are examined

in   the   context   of   the    entire    trial,     and   no     one    factor   is

dispositive.      Donnelly v. DeChristoforo, 416 U.S. 637, 639 (1974).

                                     1.

            The    conduct      challenged     here    is     the    prosecutor’s

statements in rebuttal argument that Lynch would be released with

“no restrictions” if he was found not guilty by reason of insanity.

The argument was improper because it was not true and appeared

calculated to frighten the jury into believing that an insanity

                                      13
verdict would free Lynch, putting him in a position to attack and

kill his next set of neighbors. Unless countered by an appropriate

instruction, this fear could influence a juror to overlook evidence

of insanity and vote for a conviction.

                                    2.

            The   two   improper   “no   restrictions”   comments   were

isolated, but they came at the end of the prosecutor’s rebuttal

argument.   They were among the last comments the jurors heard from

the prosecutor.

                                    3.

            The trial court issued curative instructions, during

closing argument itself and later in a supplemental charge.         The

prosecutor made the “no restrictions” comments in quick succession.

After the second time, when the prosecutor said, “No restrictions.

Perhaps some day he becomes your neighbor,” the court instructed

the jury to disregard the “last statement.”      Regardless of whether

that instruction was clear enough, the court, at Lynch’s request,

gave the jury the following additional instruction immediately

before it retired to deliberate:

          Now, members of the jury, I instruct you in addition
     to the instruction that I gave to you yesterday as
     follows. That if you return verdicts of not guilty by
     reason of insanity, the defendant shall immediately be
     committed to a state mental institution or facility. Any
     further proceedings would be a matter for the Court and
     should not concern you.

                                    14
T.T., May 17, 1993, at 539.      Defense counsel said at the time that

this instruction would be “sufficient to tell the jury a correct

statement of the law . . . to counter the statement by the state

that [Lynch] would be unrestricted.”            Id. at 534.

                                       4.

            We see nothing in the record to suggest that defense

counsel’s conduct invited the prosecutor to make the improper

comments.

                                       5.

            The evidence of Lynch’s guilt was overwhelming.                     He

confessed to the murders.      Moreover, the substantial evidence that

Lynch understood the nature and quality of his actions on the day

of the murders reduces the likelihood that the prosecutor’s “no

restrictions” comments induced the jury to disregard evidence of

Lynch’s insanity.       Dr. Clabe Lynn, the State’s expert witness,

testified that Lynch was depressed but that he did not show any

“signs or symptoms of psychosis or schizophrenia.”                J.A. 452.     An

employer    testified   that   Lynch    acted    normally    at   work,   and    a

coworker testified that he did not seem “mentally ill at all.”

J.A. 513.    Police negotiator Sergeant Edwards testified that Lynch

spoke calmly, deliberately, and rationally throughout his three and

one-half hour negotiations with the police.                 The evidence also

established that Lynch carefully and deliberately planned the

                                       15
murders.   Finally, in his confession Lynch recounted in meticulous

detail the events on the day of the murder.           His words suggest that

he was lucid.      Nothing in the confession indicates that he was

mentally impaired or that he could not tell the difference between

right and wrong.        In fact, Lynch stated that he knew what he did

was wrong, but that his neighbors “needed to die.”               J.A. 831.

            After considering all of these factors, we conclude that

the prosecutor’s improper comments during closing argument did not

deprive    Lynch   of    a   fair   trial.     The    curative   instructions

sufficiently clarified the consequences of a not guilty by reason

of insanity verdict, and there was substantial evidence that Lynch

was sane when he committed the murders.              Lynch’s Fifth Amendment

claim is without merit.



                                     IV.

            Lynch’s second argument is that his Sixth Amendment

rights were violated when the jury foreperson recited a Bible verse

during sentencing deliberations.           Lynch asserts that habeas relief

is warranted because the state court’s adjudication of this claim

was contrary to federal law.

            The facts underlying this claim are not contested.               Jury

foreperson Ronald Walker took his own copy of the Bible to the

sentencing deliberations.           During those deliberations the jury

                                       16
determined that Lynch was eligible for the death penalty. The jury

then took a further vote on its recommended sentence, and eleven

jurors voted for death.     Next, Walker led the jury in prayer.   In

addition, he told his fellow jurors that he believed in the death

penalty because of Genesis, Chapter 9, verse 6, which he read

aloud:   “Whoever sheddeth a man’s blood by man his blood must be

shed.”   J.A. 815.   The undecided juror, Nellie Fox, said that she

understood the passage, but that she did not believe the Old

Testament was relevant today.     Shortly thereafter, the jury took

another vote, and the vote for the death penalty was unanimous.

Fox later testified that the foreperson’s biblical reading did not

influence her decision to vote for death.       The state MAR court

determined that Lynch “presented nothing at the evidentiary hearing

which satisfactorily demonstrates that juror Fox changed her vote

from life to death as a result of foreman Walker’s reading of

Genesis 9:6."   J.A. 818.     As a result, the court denied Lynch’s

motion for appropriate relief.

           Lynch argues that the MAR court’s adjudication of this

claim was an unreasonable application of Supreme Court precedent

because the fact that the Bible reading did not cause Fox to change

her vote is not a valid basis for rejecting his claim.     The Bible

reading, Lynch argues, was an extraneous influence on the jury that

is presumptively prejudicial.     See Remmer v. United States, 347

                                  17
U.S. 227, 229 (1954).     In habeas review, however, we look at the

“result that the state court reached, not ‘whether [its decision]

[was] well reasoned.’”     Robinson v. Polk, 438 F.3d 350, 358 (4th

Cir. 2006) (quoting Wilson v. Ozmint, 352 F.3d 847, 855 (4th Cir.

2003)).   Our task is to determine whether the result reached by the

state MAR court was “contrary to . . . clearly established Federal

law, as determined by the Supreme Court of the United States.”    28

U.S.C. § 2254(d)(1).

           Longstanding considerations, particularly the critical

need for “frankness and freedom of discussion and conference” among

jurors, McDonald v. Pless, 238 U.S. 264, 268 (1917), “support the

protection of jury deliberations from intrusive inquiry” by courts,

Tanner v. United States, 483 U.S. 107, 127 (1987).    Thus, the Sixth

Amendment does not require judicial examination of all alleged

prejudicial influences on a jury. Indeed, the general rule is that

juror testimony may not be used to impeach a jury verdict.    See id.

at 117.    The Supreme Court, however, has carved out a limited

exception to this rule for the situation where it is alleged that

an external influence affected jury deliberations.         Parker v.

Gladden, 385 U.S. 363, 364-66 (1966).     This exception with respect

to external influences is aimed at ensuring an impartial jury that

takes the evidence it considers “only from the witness stand in a

public courtroom.”     Id. at 364.

                                     18
           A distinction is thus made between external and internal

influences on jury deliberations.            See Robinson, 438 F.3d at 361-

62.    The Supreme Court has not provided a precise test for

distinguishing    between     the    two,    nor    has   it   determined    which

category a Bible reading fits into.            See id. at 363.        The Court,

however, has provided some guidance.               In determining whether an

influence is external or internal, a court should look to the

“nature of the [influence],” not to whether it “took place inside

or outside the jury room.”          Tanner, 483 U.S. at 117.        For example,

a radio newscast in the jury room about the case at issue is

properly considered an external influence.                Id. at 123.       On the

other hand, statements made by jurors during deliberations are

internal influences.     Id. at 125.

           The result in this case is dictated by our decision in

Robinson. There, we held that the state court had not unreasonably

applied Supreme Court precedent, described above, in determining

that a Bible reading during jury deliberations was an internal

influence that was not subject to judicial inquiry.                  We reasoned

that   “reading   the   Bible   [during      sentencing        deliberations]   is

analogous to a situation where a juror quotes the Bible from

memory,   which   assuredly     would    not   be    considered     an   improper

influence.”   Robinson, 438 F.3d at 365.            We also concluded that it

was reasonable to determine that the biblical passage did not

                                        19
constitute evidence against the defendant.              Id. at 363.         As a

result, we held that the petitioner was not entitled to habeas

relief on his claim that he was denied his Sixth Amendment rights.

Id.   at   366.     Lynch’s    Sixth     Amendment   claim    based    on    the

foreperson’s      Bible   reading   fails     because    Lynch’s      case    is

indistinguishable     from    Robinson.      Robinson,   in    other    words,

confirms that the result reached by the state MAR court on Lynch’s

Sixth Amendment claim was not contrary to clearly established

federal law, as determined by the Supreme Court.



                                    V.

            For the foregoing reasons, the judgment of the district

court denying David Lynch’s petition for a writ of habeas corpus is

affirmed.

                                                                      AFFIRMED




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