                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-5


WILLIAM LEROY BARNES,

                Petitioner - Appellant,

           v.

CARLTON JOYNER,    Warden,   Central   Prison,    Raleigh,    North
Carolina,

                Respondent – Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cv-00271-TDS-JEP)


Argued:   January 29, 2014                       Decided:    May 5, 2014


Before AGEE, FLOYD, and THACKER, Circuit Judges.


Reversed and remanded by published opinion.       Judge Thacker wrote
the opinion, in which Judge Floyd joined.         Judge Agee wrote a
dissenting opinion.


ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellant.     Jonathan
Porter Babb, Sr., NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee.      ON BRIEF: George B. Currin,
CURRIN & CURRIN, PA, Raleigh, North Carolina, for Appellant.
Roy Cooper, Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.
THACKER, Circuit Judge:

             Petitioner William Leroy Barnes (“Barnes”), an inmate

on   North    Carolina’s      death-row,       appeals   the   district    court’s

denial of his petition for writ of habeas corpus against Carlton

Joyner, Warden of the Central Prison in Raleigh, North Carolina

(hereinafter, the “State”).               In 1994, after a jury trial in

North Carolina state court, Barnes was convicted of first-degree

murder    and   sentenced     to   death.        Immediately    after     the    jury

returned its sentencing recommendation, Barnes alleged to the

state trial judge that one of the jurors discussed the death

penalty   with    her   pastor     the    previous   day.      The   trial      court

denied Barnes’ request to inquire further into the matter.                        The

Supreme Court of North Carolina affirmed Barnes’ conviction and

sentence on direct appeal, concluding, among other things, that

Barnes had not proven that the alleged contact between the juror

and her pastor prejudiced Barnes or denied him the right to an

impartial jury.

             In February 1999, Barnes sought state post-conviction

relief on various grounds by filing a Motion for Appropriate

Relief.      In his Motion for Appropriate Relief, Barnes reasserted

his claim of juror misconduct and presented additional evidence

to demonstrate that a sitting juror improperly communicated with

her pastor about the death penalty during the sentencing phase

of   Barnes’    trial   and    then      relayed   the   information      to    other

                                           2
jurors.      Despite this additional information, the state post-

conviction     court     summarily       denied     Barnes’       claim        without

conducting an evidentiary hearing, adopting the same analysis as

the Supreme Court of North Carolina.

             After    considering       the    various    arguments      raised    in

Barnes’ federal habeas petition, the district court concluded

that the state court’s adjudication of Barnes’ juror misconduct

claim was not contrary to, or an unreasonable application of,

clearly established federal law.                However, the district court

granted a certificate of appealability, pursuant to 28 U.S.C. §

2253(c)(2), on the issue of whether a juror’s contact with her

pastor violated Barnes’ Sixth Amendment right to a fair trial.

            For   the   reasons     that      follow,    we   conclude    that    the

state post-conviction court’s failure to apply a presumption of

prejudice and failure to investigate Barnes’ juror misconduct

claim, which was based on an external influence on the jury, was

an unreasonable application of clearly established federal law.

Therefore, we reverse the district court’s judgment and remand

for   an   evidentiary        hearing   to    determine       whether    the    state

court’s    failures     had    a   substantial     and    injurious      effect    or

influence on the jury’s verdict.




                                          3
                                          I.

                                          A.

              On    October     30,   1992,     at    around   12:30    a.m.,   police

officers from Salisbury, North Carolina, found B.P. and Ruby

Tutterow shot to death in their home.                   The house was ransacked,

and a number of the Tutterows’ belongings were missing.                          Later

that day, Barnes and his co-defendants, Frank Junior Chambers

and Robert Lewis Blakney, were arrested in connection with the

killings.          Each   defendant     was     subsequently        indicted    on   two

counts   of    first-degree       murder,       two   counts   of    robbery    with   a

dangerous weapon, and one count of first-degree burglary.                        After

a joint capital trial, the jury returned verdicts finding Barnes

and his co-defendants guilty of all charges, including first-

degree   murder      on   the    theory   of      premeditation       and   under    the

felony murder rule.           Barnes’ guilt is not at issue here. 1

              This capital trial proceeded to the sentencing phase,

where the jury was charged with determining whether the crimes

committed by Barnes and his co-defendants warranted a sentence

of death or of life imprisonment.                     See N.C. Gen. Stat. § 15A-

2000.    During the closing arguments of the sentencing phase, an


     1
       The Supreme Court of North Carolina summarized the facts
underlying Barnes’ conviction in its opinion denying Barnes
relief on direct appeal.    See State v. Barnes, 481 S.E.2d 44,
51-53 (N.C. 1997), cert. denied, 523 U.S. 1024 (1998).



                                            4
attorney representing co-defendant Chambers stated, in pertinent

part, as follows:

     If you’re a true believer and you believe that Frank
     Chambers will have a second judgment day, then we know
     that all of us will too.      All of us will stand in
     judgment one day.    And what words is it that a true
     believer wants to hear?     [“]Well done, my good and
     faithful servant. You have done good things with your
     life.   You have done good deeds.      Enter into the
     Kingdom of Heaven.[”] Isn’t that what a true believer
     wants to hear?     Or does a true believer want to
     explain to God, [“]yes, I did violate one of your
     commandments.    Yes, I know they are not the ten
     suggestions.   They are the ten commandments.   I know
     it says, Thou shalt not kill, but I did it because the
     laws of man said I could.[”]     You can never justify
     violating a law of God by saying the laws of man
     allowed it.   If there is a higher God and a higher
     law, I would say not.

     To be placed in the predicament that the State has
     asked you to place yourself in, is just that.       To
     explain when your soul is at stake.    [“]Yes, I know
     the three that I killed were three creatures of yours,
     God. And that you made them in your likeness. I know
     you love us all, but I killed them because the State
     of North Carolina said I could.[”]    Who wants to be
     placed in that position? I hope none of us. And may
     God have mercy on us all.

J.A. 1532-33. 2     The prosecution did not object at any point

during this argument.

          The next day, the jury recommended that Barnes and

Chambers be sentenced to death for each murder and that Blakney

be sentenced to a mandatory term of life imprisonment for each


     2
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                 5
murder.    After the jury returned its sentencing recommendations

and   exited   the   courtroom,   the       following   colloquy    took     place

between the court and defense counsel:

      THE COURT: I take it everyone wants                to   enter   some
      Notice of Appeal. Is that correct?

      MR. HARP [CHAMBERS’ COUNSEL]:     The first thing we
      would like to get in is that late yesterday afternoon
      we were informed, after talking to alternate jurors,
      that on Tuesday, before deliberation and before
      instructions were given by the Court, one of the
      jurors carried a Bible back into the jury room and
      read to the other jurors from that. That it was also
      discovered by us that one of the jurors, one of the
      other jurors, called a member of the clergy, perhaps a
      relative of hers, to ask her about a particular
      question as to the death penalty.    We also informed
      you of it this morning at ten o’clock and that we need
      to enter that on the record for purposes of preserving
      that.

      MR. FRITTS [BARNES’ COUNSEL]: Judge, for Mr. Barnes we
      join in on that.    We would for those reasons make a
      Motion for Mistrial and we would request the Court to
      inquire of the jurors, and I understand the Court’s
      feelings on that, but that would be our request.

      THE COURT: No evidence that anybody discussed the
      particular facts of this case with anybody outside the
      jury. Is that correct?

      MR. HARP: No evidence that they did or did not as far
      as the conversation with the minister is concerned.

      THE COURT: No evidence that they did though.                 Is that
      correct?

      MR. HARP: No, sir.

      THE COURT: All right.    Well, I’m going to deny the
      request to start questioning this jury about what may
      or may not have taken place during their deliberations
      of this trial.


                                        6
J.A. 1601-03.         Thereafter, the trial court denied the defense’s

post-sentence motions and rejected their request to conduct an

evidentiary hearing with respect to juror misconduct.

               On    March    10,    1994,     the    court       sentenced       Barnes     and

Chambers to death, and Blakney to life imprisonment, for their

first-degree murder convictions.                      In addition, each defendant

was sentenced         to     two    terms    of    forty        years’    imprisonment       for

armed    robbery      and     one   term     of    forty        years’    imprisonment       for

burglary.       All sentences were to be served consecutively.

                                              B.

               Barnes      appealed     his    conviction          and    sentence      to   the

Supreme Court of North Carolina on various grounds.                                  Relevant

here is Barnes’ Sixth Amendment juror misconduct argument, which

was    based    on    two     alleged       occurrences:          first,    that    a   “juror

called a minister to ask a question about the death penalty;”

and second, “that a juror had taken a Bible into the jury room

and    read    to    the    jury    members       from     it    before    deliberations.”

State v. Barnes, 481 S.E.2d 44, 66 (N.C. 1997).                                 Barnes argued

that    “the        trial     court     erred        in     failing        to    conduct     an

investigation to determine what, if any, prejudice resulted from

the alleged events.”                Id. at 67.            The Supreme Court of North

Carolina disagreed, offering the following reasoning:

       Assuming arguendo that defense counsel’s assertions
       were accurate, there still was no assertion that the
       juror’s reading from the Bible was accomplished in the

                                               7
     context of any discussion about the case itself or
     that it involved extraneous influences as defined by
     this Court.    The issue, therefore, is whether the
     trial court abused its discretion by failing to
     inquire   further   into  the   alleged  Bible-reading
     incident when faced with the mere assertion that a
     juror read the Bible aloud in the jury room prior to
     the commencement of deliberations and prior to the
     trial court’s instructions to the jury.    As there is
     no evidence that the alleged Bible reading was in any
     way directed to the facts or governing law at issue in
     the case, we cannot say that the trial court’s actions
     were an abuse of discretion.

     With respect to a juror’s alleged actions in calling a
     clergy member, a similar analysis applies.      The trial
     court   was  faced   with   the   mere    unsubstantiated
     allegation that a juror called a minister to ask a
     question about the death penalty.        Nothing in this
     assertion   involved    “extraneous    information”    as
     contemplated in [North Carolina Rule of Evidence]
     606(b) or dealt with the fairness or impartiality of
     the juror.   There is no evidence that the content of
     any such possible discussion prejudiced defendants or
     that   the  juror   gained   access    to   improper   or
     prejudicial matters and considered them with regard to
     this case.     We cannot say under the particular
     circumstances of this case that the trial court’s
     actions in failing to probe further into the sanctity
     of the jury room was an abuse of discretion.        These
     assignments of error are therefore without merit.

Id. at 68.

             The Supreme Court of North Carolina likewise rejected

Barnes’   other     contentions   on   direct   appeal   and   affirmed   his

conviction    and    sentence   on   February   10,   1997.    Barnes,    481

S.E.2d at 51, 82.       On March 23, 1998, the Supreme Court of the

United States denied Barnes’ petition for a writ of certiorari.

See Barnes v. North Carolina, 523 U.S. 1024 (1998).



                                       8
                                                 C.

                  In February 1999, Barnes sought state post-conviction

relief       on    various       grounds,       filing    a    Motion       for     Appropriate

Relief (“MAR”) in Rowan County Superior Court (the “MAR Court”). 3

Barnes       amended       his     MAR    on    January       24,   2001,     and     again   on

September          4,    2002. 4         With   respect       to    his     claim    of    juror

misconduct, Barnes offered new information to the MAR Court to

try     to    demonstrate          that     Hollie    Jordan        (“Juror       Jordan”),   a

sitting juror, improperly communicated with her pastor about the

death       penalty      during     the     sentencing        phase    of     Barnes’     trial.

This new information was presented through a number of exhibits

compiled          by    post-conviction         counsel       and     their    investigator,

which were based on post-verdict interviews with several of the

jurors. 5



        3
       A MAR is North Carolina’s procedural mechanism for state
post-conviction review. See N.C. Gen. Stat. §§ 15A-1401, 1411.
Although a “MAR is not identical to a habeas corpus petition,
. . . it provides an avenue to obtain [post-conviction] relief
from ‘errors committed in criminal trials.’” Conaway v. Polk,
453 F.3d 567, 576 n.8 (4th Cir. 2006) (quoting N.C. Gen. Stat. §
15A-1401).
        4
       For simplicity, we refer to the most current version as
the “MAR.”
        5
       For purposes of Barnes’ habeas petition, we assume the
truth of the factual allegations contained in his evidentiary
affidavits presented to the MAR Court.    See Robinson v. Polk,
438 F.3d 350, 358 (4th Cir. 2006) (citing Bacon v. Lee, 225 F.3d
470, 485 (4th Cir. 2000)).



                                                 9
            One of the exhibits attached to Barnes’ MAR was an

“Interview Summary” of a May 31, 1995 interview of Juror Jordan. 6

According to the Interview Summary, Juror Jordan was offended by

the closing argument in which co-defendant Chambers’ attorney

argued “that if jurors voted for the death penalty, they would

one day face God’s judgment for killing these defendants.”                          J.A.

1898.      Although    Juror      Jordan     “did    not   accept    the   attorney’s

argument,” she did notice “that another juror, a female, seemed

visibly    upset”     by    it.        Id.    “To    remedy    the   effect    of    the

argument, [Juror] Jordan brought a Bible from home into the jury

deliberation room” and read a passage to all the jurors, which

provided “that it is the duty of Christians to abide by the laws

of the state.”        Id.    The Interview Summary does not mention any

conversation with Juror Jordan’s pastor; it states that Juror

Jordan knew the Bible passage from church.

            In   addition         to    Juror      Jordan’s    Interview      Summary,

Barnes’ MAR relied on a September 7, 2000 affidavit from Daniel

C. Williams (“Investigator Williams”), an investigator hired by

Barnes’ post-conviction counsel.                  In his affidavit, Investigator

Williams    described       interviews       he    conducted   with   three     jurors

     6
       On June 1, 2000, Juror Jordan signed the bottom of the
Interview Summary, acknowledging, “[t]he summary is an accurate
description of what [she] said to Janine Crawley and Alexander
McCoy [members of Barnes’ direct appeal team] on May 31, 1995.”
J.A. 1898.



                                             10
from    Barnes’      trial,      including         Juror       Jordan.         According        to

Investigator Williams, Juror Jordan explained, “she called her

pastor    Tom   Lomax”       (“Pastor     Lomax”)         in     response      to    a    defense

attorney’s      closing      argument     in       which       the    attorney       “suggested

that if jurors returned a death sentence, they, the jurors[,]

would one day face judgment for their actions.”                                     J.A. 1892.

Juror Jordan stated that she “discussed the lawyer’s argument

with [Pastor] Lomax.”            Id.    During their conversation, “[Pastor]

Lomax told [Juror] Jordan about another biblical passage which

contradicted the passage relied upon by the defense attorney.”

Id.     The next day, Juror Jordan brought her Bible into the jury

deliberation        room   and    “read      the    passage          suggested       to   her   by

[Pastor] Lomax to all of the jurors.”                      Id.

             Investigator        Williams          also     interviewed         jurors      Leah

Weddington (“Juror Weddington”) and Ardith F. Peacock (“Juror

Peacock”),      both    of    whom     recalled      that        a   member     of    the    jury

brought     a     Bible      into      the     jury        room        during        sentencing

deliberations.         Juror Weddington told Investigator Williams that

“[t]he person who brought in the Bible read a passage to a juror

who was having a hard time with the death penalty.”                                  J.A. 1892-

93.     Juror Peacock could not recall the details of the verse,

but she stated that it “dealt with life and death.”                                       Id. at

1893.      In   a    separate       affidavit       dated        April    7,     2004,      Juror

Peacock stated that a defense attorney’s remarks that jurors

                                             11
would have to face God’s judgment if they imposed the death

penalty “made the jury furious.”               Id. at 1900.      In response to

this argument, one of the jurors read a passage from the Bible

to the other jurors.          Juror Peacock did not recall which juror

brought the Bible or the exact verse that was read.

            Investigator Williams also interviewed Pastor Lomax.

Pastor Lomax confirmed that Juror Jordan attends his church.

Moreover,     although        Pastor    Lomax       “could    not      recall     the

conversation recounted by [Juror] Jordan,” he “stated that it

[was] possible that he did talk to her about the death penalty

while she was a juror, but he simply does not remember it.”

J.A. 1893.

            Barnes’     MAR     also    attached      an     October     10,     2000

affidavit    of   Cynthia     F.   Adcock,     an   attorney    with    the     North

Carolina     Resource    Center,       which    recounted      interviews        with

several jurors.       According to Ms. Adcock, in a February 25, 1995

interview, Juror Weddington stated that “a juror named ‘Hollie’

brought a Bible into the jury room and read from it” and that

“Hollie also talked to her pastor during the case.”                     J.A. 1902.

Additionally, Ms. Adcock’s affidavit explains that in a separate

February 25, 1995 interview, Juror Wanda Allen (“Juror Allen”)

“recalled discussions about the fact that one of the jurors had

brought in a [B]ible and had talked with her pastor.”                   Id.



                                        12
               Relying on this new information, Barnes contended that

there was juror misconduct during the sentencing phase of his

trial.       On March 19, 2007, the MAR Court held an evidentiary

hearing on some, but not all, of the claims raised in Barnes’

MAR.       Importantly, the MAR Court did not conduct an evidentiary

hearing on Barnes’ juror misconduct claim.

               Instead, the MAR Court “summarily denied” the juror

misconduct claim, holding that it was “procedurally barred and

without merit” under N.C. Gen. Stat. § 15A-1419(a)(2) because

the    issue    had   previously   been   addressed   and    rejected   by    the

Supreme Court of North Carolina on direct appeal. 7             J.A. 1882-83.

The    MAR    Court   further   concluded   that   Barnes’    “argument      that

there is now additional evidence which was not available at that


       7
       Pursuant to North Carolina law, a claim is “procedurally
barred” for purposes of MAR review if, among other things,
“[t]he ground or issue underlying the motion was previously
determined on the merits upon an appeal from the judgment or
upon a previous motion or proceeding in the courts of this State
or a federal court.”   N.C. Gen. Stat. § 15A-1419(a)(2).   As we
have recognized, “[a]lthough North Carolina courts refer to the
subsection 15A-1419(a)(2) bar as a ‘procedural bar’ for purposes
of reviewing a state court defendant’s MAR, it is not a state
procedural bar for purposes of federal habeas review.” Brown v.
Lee, 319 F.3d 162, 170 n.2 (4th Cir. 2003).    Subsection (a)(2)
simply precludes MAR review -- not federal habeas review -- of a
claim that was previously raised by a state defendant and
rejected on the merits. Id. (explaining that subsection (a)(2)
“states a rule of res judicata and law of the case, precluding
re-litigation of the claim [through] the MAR proceeding”).
Therefore, we are not precluded from reviewing Barnes’ juror
misconduct claim.



                                      13
time is without foundation or support, and [Barnes] seeks to

present anew the same contentions and inferences raised in his

initial appeal.”           Id. at 1883.               The court explained, “[t]he

allegedly     new    evidence      adds    nothing          to    the    issue   as    it    was

presented during [Barnes’] original appeal, and the allegations

are subject to the same analysis inherent in [the Supreme Court

of   North    Carolina’s]      decision.”             Id.         Consequently,        the   MAR

Court    entered     an    order    on    May       31,   2007,        denying   all    claims

raised in Barnes’ MAR.              On March 6, 2008, the Supreme Court of

North    Carolina     denied       Barnes’      request          for    certiorari     review.

See State v. Barnes, 660 S.E.2d 53 (N.C. 2008).

                                               D.

              On April 17, 2008, Barnes filed a Petition for Writ of

Habeas     Corpus,    pursuant      to    28    U.S.C.       §     2254,    in   the    United

States District Court for the Middle District of North Carolina.

Just as he did in his MAR, Barnes raised a number of challenges

to   his     conviction     and     sentence,         including          juror   misconduct

during his sentencing.              On February 3, 2012, a United States

Magistrate         Judge     issued        a        report         and     recommendation,

recommending that all claims in the petition be denied.                                 Barnes

v. Branker, 1:08-CV-271, 2012 WL 373353, at *39 (M.D.N.C. Feb.

3, 2012).      On March 28, 2013, after concluding that the issues

raised by Barnes did not require a hearing, the district court

adopted      the   magistrate       judge’s         recommendation         and   issued      an

                                               14
opinion and order denying Barnes’ habeas petition.                      See Barnes

v.    Lassiter,   1:08-CV-00271,        2013    WL   1314466,      at   *6-7,   *20

(M.D.N.C. Mar. 28, 2013).            The district court, however, granted

a certificate of appealability (“COA”), pursuant to 28 U.S.C.

§ 2253(c)(2), on the issue of whether a juror’s contact with her

pastor violated Barnes’ Sixth Amendment right to a fair trial.

Id. at *20.       Barnes timely appealed. 8          We possess jurisdiction

pursuant to 28 U.S.C. § 2253.

                                        II.

                                        A.

            “We review de novo the district court’s application of

the   standards    of    28    U.S.C.   §     2254(d)   to   the    findings    and

conclusions of the MAR court.”               McNeill v. Polk, 476 F.3d 206,

210 (4th Cir. 2007).           In conducting our habeas review, we are

restricted to the question of whether a state prisoner “is in

custody in violation of the Constitution or laws or treaties of

the United States.”           28 U.S.C. § 2254(a); see also Estelle v.

McGuire,   502    U.S.   62,    68   (1991).      Moreover,     because    we   are

engaging in collateral review of a state court adjudication, our

      8
       In his Opening Brief, Barnes requested an additional COA
from this Court, seeking consideration of a claim relating to a
Batson violation.    See Batson v. Kentucky, 476 U.S. 79, 89
(1986) (prohibiting purposeful racial discrimination in jury
selection as a violation of the Equal Protection Clause).    We
denied Barnes’ request for an additional COA and struck the
Batson claim from Barnes’ brief.



                                        15
authority to grant relief is constrained by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”).   See DeCastro

v. Branker, 642 F.3d 442, 449 (4th Cir. 2011) (citing 28 U.S.C.

§ 2254(d)).   Under AEDPA, we may grant habeas relief on a claim

that has been previously adjudicated “on the merits” 9 in state

court only if that adjudication “resulted in a decision that was

contrary to, or involved 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). 10

     9
        Barnes argued in the district court that the MAR Court
“failed to adjudicate the merits of [his] properly presented
claim and, thus, [the district court] must review [his claim] de
novo.” J.A. 2135 n.7. However, as the district court correctly
concluded, the MAR Court did in fact adjudicate the merits of
Barnes’ juror misconduct claim. Indeed, the MAR Court concluded
that the claim was “procedurally barred and without merit”
because it “was presented in [his] direct appeal . . . and was
directly addressed by the Supreme Court of North Carolina and
rejected by that court.”      Id. at 1882-83.    With respect to
Barnes’ new evidence, the MAR Court noted that it “add[ed]
nothing to the issue as it was presented during [Barnes’]
original appeal.”     Id. at 1883.      The MAR Court therefore
incorporated the “same analysis inherent in [the direct appeal]”
to the new evidence.     Id.    This was an adjudication on the
merits, though it was done summarily and by incorporating the
Supreme Court of North Carolina’s earlier analysis. See Bell v.
Jarvis, 236 F.3d 149, 163 (4th Cir. 2000) (en banc) (explaining
that even a summary adjudication, where “the state court fails
to   articulate  the   rationale   behind  its  ruling,”   is  an
adjudication on the merits for purposes of § 2254(d) deference).
     10
       We may also grant relief if the state court adjudication
“resulted in a decision that 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)(2).
Subsection (d)(2) is not implicated in this appeal.


                                 16
              A    state    court’s       decision       is    “contrary      to”   clearly

established        federal       law     “if   the     state     court     arrives     at    a

conclusion opposite to that reached by [the Supreme] Court on a

question of law,” or if it reaches a different result than the

Supreme       Court         previously              reached      on      a     materially

indistinguishable set of facts.                       Williams v. Taylor, 529 U.S.

362,   413    (2000).            Further,      a    state     court’s    decision     is     an

“unreasonable        application”         of       clearly    established     federal       law

when the state court “identifies the correct governing legal

principle from [the Supreme] Court’s decisions but unreasonably

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

Id. at 413.        This means that to obtain relief, “a state prisoner

must   show       that   the     state    court’s       ruling    on    the   claim    being

presented in federal court was so lacking in justification that

there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.”                               White

v. Woodall, --- U.S. ---, No. 12-794, 2014 WL 1612424, at *4

(Apr. 23, 2014) (internal quotation marks omitted).

              Under        the      unreasonable             application      clause        of

§ 2254(d)(1), we look to whether the state court’s application

of law was “objectively unreasonable” and not simply whether the

state court applied the law incorrectly.                         Robinson v. Polk, 438

F.3d 350, 355 (4th Cir. 2006); see also Williams, 529 U.S. at

411 (explaining that “a federal habeas court may not issue the

                                               17
writ    simply      because    that       court      concludes      in    its    independent

judgment that the relevant state-court decision applied clearly

established         federal    law       erroneously        or     incorrectly”).           The

phrase “clearly established Federal law” means “the holdings, as

opposed to the dicta, of [the Supreme] Court’s decisions as of

the time of the relevant state-court decision.”                             Williams, 529

U.S. at 412.

                                                B.

              Even     if      we     conclude          that       the    state      court’s

adjudication was contrary to, or an unreasonable application of,

clearly established federal law, our inquiry is not over.                                 As we

have observed, “‘most constitutional errors can be harmless.’”

Bauberger v. Haynes, 632 F.3d 100, 104 (4th Cir. 2011) (quoting

Arizona v. Fulminante, 499 U.S. 279, 306 (1991)).                                 Therefore,

“we    are    not    permitted      to    grant      habeas      relief    unless    we     are

convinced that the error had a ‘substantial and injurious effect

or influence in determining the jury’s verdict.’”                               Fullwood v.

Lee,    290    F.3d    663,    679       (4th    Cir.      2002)    (quoting      Brecht     v.

Abrahamson, 507 U.S. 619, 637 (1993)).                       This means that before a

federal court grants habeas relief, it must conclude that the

state    court’s      constitutional            error      “actually      prejudiced”       the

habeas petitioner.            Bauberger, 632 F.3d at 104 (“Because of the

threat       collateral       attacks      pose       to     ‘finality,         comity,     and

federalism,’ habeas petitioners may secure the writ only if the

                                                18
error     ‘actual[ly]     prejudice[d]’         them.”    (internal      citations

omitted       and   alterations    in    original)).       It    is    under    this

framework that we examine Barnes’ claim of juror misconduct.

                                         III.

              Barnes   argues     that    under   the    Sixth   and   Fourteenth

Amendments to the United States Constitution, he was deprived of

his right to an impartial jury at his capital sentencing because

at least one juror improperly communicated with her pastor and

relayed the information obtained from her pastor to the rest of

the jury.       As a result, Barnes contends that the jury considered

extraneous information that the parties did not introduce at

trial.        Relying on the Supreme Court’s decision in Remmer v.

United States, 347 U.S. 227 (1954), Barnes contends that the MAR

Court unreasonably applied clearly established federal law by

failing to attach a presumption of prejudice upon his showing of

an extraneous influence on the jury (the “Remmer presumption”).

In a related, but distinct argument, Barnes also contends that

the MAR Court unreasonably applied clearly established federal

law by failing to order the state trial court to hold a hearing

on juror misconduct, during which Barnes would be entitled to

the Remmer presumption, or, at a minimum, during which he would

have    the    opportunity   to   prove    the    prejudicial    impact    of    the

extraneous influence.



                                          19
               The State counters by first arguing that there is no

clearly    established         federal     law    applicable       to    the    situation

presented in the instant case.                   Thus, according to the State,

the MAR Court’s adjudication of Barnes’ juror misconduct claim

necessarily could not have been contrary to, or an unreasonable

application of, clearly established federal law.                         The State next

argues that even if there is clearly established federal law

applicable here, the MAR Court did not unreasonably apply such

law because the communication between the juror and her pastor

was not “about the matter pending before the jury.”                         See Remmer,

347 U.S. at 229 (emphasis supplied).                       According to the State,

this    means        Barnes     was      entitled     to     neither       the    Remmer

presumption, nor to a hearing on the issue of juror misconduct.

Finally, the State contends that the district court correctly

applied        the   AEDPA    standard      --    which     requires      proof     of     a

“substantial         and   injurious      effect”     on    Barnes’      sentencing       in

order     to     grant     habeas      relief    --   and    that,       therefore,       an

evidentiary hearing in the district court was not required.

               In light of our review under AEDPA, as well as the

parties’        arguments      summarized        above,     we    must    address        the

following        three       issues:     (1)      whether        there    was     clearly

established federal law governing Barnes’ juror misconduct claim

at the time of the MAR Court’s adjudication; (2) if so, whether

the MAR Court acted contrary to this clearly established law, or

                                            20
applied it unreasonably, in failing to order a hearing or apply

a presumption of prejudice after Barnes presented allegations

that    a   juror    communicated       with    her    pastor      about     the    death

penalty during Barnes’ sentencing; and (3) whether this error

had a substantial and injurious effect on Barnes’ sentencing.

See Hall v. Zenk, 692 F.3d 793, 799 (7th Cir. 2012) (employing

this three-step analysis on federal habeas review).

                                          A.

                       Clearly Established Federal Law

              The    Sixth    and    Fourteenth      Amendments       to   the     United

States Constitution guarantee a criminal defendant the right to

a trial by an impartial jury.              See U.S. Const. amend. VI; Irvin

v. Dowd, 366 U.S. 717, 722 (1961) (“In essence, the right to

jury trial guarantees to the criminally accused a fair trial by

a panel of impartial, indifferent jurors.                    The failure to accord

an accused a fair hearing violates even the minimal standards of

due    process.”     (internal      quotation     marks      omitted));      Turner    v.

Louisiana, 379 U.S. 466, 471-73 (1965).                      An impartial jury is

one    that    arrives       at   its   verdict      “based    upon    the    evidence

developed at trial” and without external influences.                       Irvin, 366

U.S.   at     722;   see   also     Remmer,    347    U.S.    at   229.      “No    right

touches more the heart of fairness in a trial,” Stockton v.

Virginia, 852 F.2d 740, 743 (4th Cir. 1988), and this right

applies equally to sentencing proceedings that are tried to a

                                          21
jury,    Robinson         v.    Polk,      438     F.3d   350,    359     (4th    Cir.          2006)

(citing Morgan v. Illinois, 504 U.S. 719, 727-28 (1992)).

               It    is        clearly       established          under    Supreme              Court

precedent       that       an       external        influence       affecting         a        jury’s

deliberations            violates      a     criminal      defendant’s       right         to      an

impartial jury.             See, e.g., Parker v. Gladden, 385 U.S. 363,

364-66 (1966) (per curiam); Turner, 379 U.S. at 472-73; Remmer,

347     U.S.        at     229.             Especially        troubling      are           private

communications between a juror and a third party.                                See Fullwood

v. Lee, 290 F.3d 663, 677 (4th Cir. 2002) (“The Supreme Court

has     clearly      stated         that     private      communications          between          an

outside    party         and    a    juror       raise    Sixth     Amendment         concerns.”

(citing     Parker,         385      U.S.     at     364)).        Indeed,       it       is     well

established that “‘private talk, tending to reach the jury by

outside influence’ is constitutionally suspect.”                                 Id. (quoting

Parker, 385 U.S. at 364).                   The Supreme Court recognized this as

early as 1892 when it declared that “[p]rivate communications,

possibly       prejudicial,           between       jurors    and    third       persons,          or

witnesses, or the officer in charge, are absolutely forbidden,

and invalidate the verdict, at least unless their harmlessness

is made to appear.”                 Mattox v. United States, 146 U.S. 140, 150

(1892).




                                                   22
                                                   1.

                 In light of these significant constitutional concerns,

the Supreme Court in Remmer created a rebuttable presumption of

prejudice applying to communications or contact between a third

party and a juror concerning the matter pending before the jury.

Remmer, 347 U.S. at 229; see also Fullwood, 290 F.3d at 678

(explaining            that     the        Supreme        Court      adopted     the    Remmer

presumption “[b]ecause the potential for mischief is so great

when a third party establishes private, extrajudicial contact

with a juror”).

                 In Remmer, a juror reported to the district judge that

an unnamed third party suggested to the juror that he could

profit by returning a defense verdict.                            347 U.S. at 228.           The

judge assigned an FBI agent to investigate the incident, and the

agent reported to the judge “that the statement to the juror was

made in jest.”                Id.       The agent’s report was reviewed by the

judge      and    the    prosecutor          but     was    not   disclosed      to    defense

counsel.         Id.     After trial, the defendant became aware of the

incident         and    filed       a     motion    for    a   new    trial     in   which    he

requested a hearing “to determine the circumstances surrounding

the incident and its effect on the jury.”                            Id.   Without holding

the requested hearing, the district court denied the motion.

Id.   at    229.         The     Ninth       Circuit       affirmed,    holding       that   the

district     court       did        not    abuse    its     discretion     in    denying     the

                                                   23
motion for a new trial because the defendant failed to show

prejudice.      See Remmer v. United States, 205 F.2d 277, 291 (9th

Cir. 1953), vacated, 347 U.S. 227 (1954).

              The    defendant   appealed     to   the   Supreme    Court,   which

vacated the Ninth Circuit’s judgment and remanded the case for a

hearing.      Remmer, 347 U.S. at 229-30.            Specifically, the Court

stated,    “any       private    communication,     contact,       or   tampering,

directly or indirectly, with a juror during a trial about the

matter pending before the jury is, for obvious reasons, deemed

presumptively        prejudicial.”      Id.    (emphasis    supplied).       “The

presumption is not conclusive, but the burden rests heavily upon

the Government to establish, after notice to and hearing of the

defendant, that such contact with the juror was harmless to the

defendant.”         Id. (emphasis supplied) (citing Mattox, 146 U.S. at

148-50). 11    No such hearing was conducted by the district court


     11
        As we have observed, the rules of evidence “make it
difficult for either party to offer direct proof of the impact
that an improper contact may have had on the deliberations of
the jury.” Stockton, 852 F.2d at 743-44; see also Robinson, 438
F.3d at 359-60.    This is because both the Federal Rules of
Evidence and the North Carolina Rules of Evidence prohibit a
juror from testifying about his or her mental processes
concerning the verdict.   See Fed. R. Evid. 606(b); N.C. Gen.
Stat. § 8C-1, Rule 606(b). There is an exception, however, that
permits a juror to testify about “whether extraneous prejudicial
information was improperly brought to the jury’s attention or
whether any outside influence was improperly brought to bear on
any juror.”   N.C. Gen. Stat. § 8C-1, Rule 606(b); see Fed. R.
Evid. 606(b).



                                        24
in Remmer.       As a result, the Supreme Court “[did] not know from

this       record,     nor    [did]     the     petitioner     know,     what    actually

transpired, or whether the incidents that may have occurred were

harmful or harmless.”            Id. at 229.

               The Court further noted that when allegations of juror

partiality come to light, “[t]he trial court should not decide

and    take    final     action        ex     parte   on   information    such    as    was

received in this case.”                 Remmer, 347 U.S. at 229-30.              Instead,

the trial court “should determine the circumstances, the impact

thereof upon the juror, and whether or not it was prejudicial,

in     a     hearing     with         all     interested     parties     permitted       to

participate.”          Id. at 230.            The Supreme Court remanded the case

to the district court with instructions that it hold a hearing

to determine whether the incident was harmful to the defendant.

Id.        The case eventually made its way back up to the Supreme

Court, at which time the Court explained that “[i]t was the

paucity of information relating to the entire situation coupled

with the presumption which attaches to the kind of facts alleged

by petitioner which, in [the Court’s] view, made manifest the

need for a full hearing.”                      Remmer v. United States (“Remmer

II”), 350 U.S. 377, 379–80 (1956).

               Thus,         Remmer         clearly    established       not     only     a

presumption of prejudice, but also a defendant’s entitlement to

an evidentiary hearing, when the defendant presents a credible

                                                25
allegation of communications or contact between a third party

and a juror concerning the matter pending before the jury.                              We

proceed to discuss each of these aspects of Remmer in turn.

                                         a.

            With respect to the presumption of prejudice, we have

recently    observed,     “there        is     a   split     among       the   circuits

regarding    whether    the   Remmer         presumption     has    survived      intact

following” the Supreme Court’s decisions in Smith v. Phillips,

455 U.S. 209 (1982), and United States v. Olano, 507 U.S. 725

(1993).     United States v. Lawson, 677 F.3d 629, 642 (4th Cir.

2012); see also id. at 643-44 (describing the circuit split).                           A

brief discussion of Phillips, Olano, and our subsequent case law

is instructive.

            Phillips was a habeas corpus appeal in which a sitting

juror    applied   to   the   state     district        attorney’s       office   for    a

position as an investigator during the pendency of a state court

trial.     455 U.S. at 212.          The defendant learned of the juror’s

employment application after the jury found him guilty.                             As a

result, the defendant moved to set aside the verdict.                             Id. at

213.      After    conducting    a    hearing      in    which     the    trial    court

received testimony from the juror and the prosecutor, the trial

court denied the defendant’s motion, finding that the juror was

not biased as a result of his employment application.                             Id. at

213-14.      The    Supreme     Court    concluded         that    the    hearing    was

                                         26
sufficient, holding that due process requires the trial court to

conduct     a     hearing      during     which     “the       defendant      has     the

opportunity       to   prove    actual     bias.”        Id.     at   215    (emphasis

supplied).       Although the Court spoke in terms of the defendant

proving bias rather than the government rebutting a presumption

of prejudice, we have nonetheless expressly held that Phillips

did not overturn the Remmer presumption.                   See Stockton, 852 F.2d

at 744 (distinguishing Phillips and concluding that in cases

where     “the     danger      is   not    one      of     juror      impairment      or

predisposition,         but    rather     the     effect       of     an    extraneous

communication upon the deliberative process of the jury,” the

Remmer presumption applies (emphasis supplied)).

               Olano was a direct appeal in which a district court

permitted        alternate      jurors     to     be     present       during       jury

deliberations in violation of Federal Rule of Criminal Procedure

24(c).      507 U.S. at 729-30.            Because the defendants did not

object    to    the    alternate    jurors’     presence,       the   Supreme       Court

considered whether the district court’s decision was plain error

under Federal Rule of Criminal Procedure 52(b).                            Id. at 730,

737.     The Supreme Court cited Remmer and observed, “[t]here may

be cases where an intrusion should be presumed prejudicial, but

a presumption of prejudice as opposed to a specific analysis

does not change the ultimate inquiry: Did the intrusion affect

the jury’s deliberations and thereby its verdict?”                          Id. at 739

                                          27
(internal    citations     omitted).         We   have    recently          “conclude[d]

that the Supreme Court’s discussion, of the ‘ultimate inquiry’

to be performed in cases involving ‘intrusions’ into a jury’s

deliberations, suggests that this inquiry may be framed either

as a rebuttable presumption or as a specific analysis of the

intrusion’s effect on the verdict.”                  Lawson, 677 F.3d at 642

(emphasis supplied).            Nonetheless, we have applied the Remmer

presumption    post-Olano,       both   on    direct     appeal       and     on    §   2254

review.      See id. (noting, on direct appeal, that “the Remmer

rebuttable     presumption       remains     live   and     well       in    the    Fourth

Circuit”); United States v. Blauvelt, 638 F.3d 281, 294-95 (4th

Cir. 2011) (direct appeal); Wolfe v. Johnson, 565 F.3d 140, 160-

62 (4th Cir. 2009) (28 U.S.C. § 2254 review); Fullwood, 290 F.3d

at 677-78 (28 U.S.C. § 2254 review).                   Wolfe and Fullwood were

post-AEDPA cases.         Therefore, the Remmer presumption must have

been clearly established in order to be relevant under AEDPA.

See 28 U.S.C. § 2254(d).

            Thus, by necessary implication, we have held that the

Remmer presumption is clearly established federal law as defined

by AEDPA even after the Supreme Court’s decisions in Phillips

and   Olano.       The   State    has   not    asked      us    to     reconsider       our

position,    and   we    will    therefore    continue         to    deem    the Remmer

presumption     “clearly        established       federal       law”        here.       See

Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (per curiam)

                                        28
(explaining that “an appellate panel may, in accordance with its

usual law-of-the-circuit procedures, look to circuit precedent

to ascertain whether it has already held that the particular

point    in    issue         is    clearly          established       by      Supreme     Court

precedent”).

                                                   b.

              We also recognize that Remmer established a separate,

but    related    requirement           that        a   defendant     be   entitled       to   a

hearing when the defendant presents a credible allegation of

communications         or    contact      between        a   third    party     and   a   juror

concerning the matter pending before the jury.                                 See Haley v.

Blue Ridge Transfer Co., 802 F.2d 1532, 1535 (4th Cir. 1986)

(describing the Remmer presumption and explaining that “Remmer

also    established         the    requirement          of   a   post-trial      evidentiary

hearing in which the prevailing party has the opportunity and

burden of rebutting the presumption of juror prejudice”); see

also United States v. Malloy, 758 F.2d 979, 982 (4th Cir. 1985)

(referring       to    the     post-trial           evidentiary       hearing     concerning

potential     juror         bias   as     a    “required”        hearing);      Stouffer       v.

Trammell, 738 F.3d 1205, 1214 (10th Cir. 2013) (explaining that

“[t]he    trial       court’s      duty       to    conduct      a   Remmer    hearing     when




                                                   29
genuine   concerns     of    improper   juror      contact   arise   is    clearly

established by the Supreme Court”). 12

           Post-Remmer Supreme Court case law has confirmed that

due process requires a hearing to alleviate concerns of juror

partiality.     In Phillips, the Court explained that it “has long

held that the remedy for allegations of juror partiality is a

hearing   in   which   the    defendant      has   the   opportunity      to   prove

actual bias.”      455 U.S. 209, 215 (1982); see also Porter v.

Illinois, 479 U.S. 898, 900 (1986) (Marshall, J., dissenting

from denial of writ of certiorari) (citing Remmer and Phillips

and explaining that “[w]hen a substantial question of juror bias

is presented to the trial court, . . . we have held that the

defendant is entitled to a hearing with all interested parties

permitted to participate” (internal quotation marks omitted)).

           The requirement that a trial court conduct a hearing

to determine juror partiality is rooted in the Constitution:

     Due process means 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. Such determinations may properly be made

     12
       See also United States v. Sandalis, 14 F. App’x 287, 289
(4th Cir. 2001) (unpublished per curiam) (citing Remmer and
explaining that “when a party makes a threshold showing that
improper external influences came to bear on the decision-making
process of a juror, an evidentiary hearing on juror bias not
only is allowed under Federal Rule of Evidence 606(b), but is
required”).



                                        30
      at a hearing like that ordered in Remmer and held in
      this case.

Phillips, 455 U.S. at 217.               Depending on when allegations of

improper juror communication or contact are brought to the trial

court’s    attention,       the   hearing      requirement   may     be   satisfied

post-trial, like in Remmer, or during trial.                 See Ladd v. South

Carolina, 415 F.2d 870, 873 (4th Cir. 1969) (explaining that by

conducting an “adversary proceeding . . . in open court during

the state trial,” the trial judge did “precisely that taught by

Remmer”).        Accordingly, it is clearly established federal law

for   purposes     of    our   review    under   AEDPA    that   a   defendant   is

entitled    to    a     hearing   when    he   or   she   presents    a   credible

allegation of communications or contact between a third party

and a juror concerning the matter pending before the jury. 13




      13
        Whether the Remmer presumption has been altered or
diminished by Philips and Olano, as described above, does not
affect our conclusion that the Remmer hearing requirement is
clearly established federal law. In Phillips, the Supreme Court
actually reinforced the hearing requirement as an independent
remedy, explaining that the “Court has long held that the remedy
for allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias.”      Id. at
215. In Olano, because the defendants never requested a hearing
to determine whether the presence of alternate jurors during
deliberations influenced the verdict, the Supreme Court did not
need to decide “whether the courts of appeals have authority to
remand for Remmer-like hearings on plain-error review.”      507
U.S. at 740.



                                          31
                                            2.

              Of     course,   not   every        allegation      of   an     unauthorized

communication between a juror and a third party will trigger the

Remmer presumption         and   its    corresponding            hearing      requirement.

See Haley, 802 F.3d at 1537 n.9 (recognizing that “certain kinds

of   extrajudicial        contacts     may        amount    to    nothing      more     than

innocuous       interventions        that     simply        could      not     justify    a

presumption of prejudicial effect”).                      To be sure, “due process

does not require a new trial every time a juror has been placed

in a potentially compromising situation,” Phillips, 455 U.S. at

217,    and    the    Remmer   presumption         “is     not   one   to     be   casually

invoked,” Stockton, 852 F.2d at 745.                      Therefore, to be entitled

to the Remmer presumption and a Remmer hearing, a “defendant

must first establish both that an unauthorized contact was made

and that it was of such a character as to reasonably draw into

question the integrity of the verdict.”                     Id. at 743; Billings v.

Polk, 441 F.3d 238, 247 n.6 (4th Cir. 2006); see also Stouffer,

738 F.3d at 1214 (“When a trial court is apprised of the fact

that    an    extrinsic    influence        may    have    tainted     the     trial,    the

proper remedy is a hearing to determine the circumstances of the

improper contact and the extent of the prejudice, if any, to the

defendant.”); Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir.

2005)    (a    Remmer     hearing      is    required        when      “the    extraneous

communication to the juror [is] of a character that creates a

                                            32
reasonable      suspicion    that   further        inquiry    is     necessary     to

determine whether the defendant was deprived of his right to an

impartial jury”).

              Stated differently, the Remmer presumption and hearing

requirement are triggered after the party attacking the verdict

satisfies the “minimal standard” of showing that “extrajudicial

communications or contacts [between a juror and a third party]

were   more    than    innocuous    interventions.”          United     States    v.

Cheek, 94 F.3d 136, 141 (4th Cir. 1996) (internal citations and

quotation marks omitted).           In considering whether a particular

communication or contact between a juror and a third party is

more   than    an    innocuous   intervention,       we     refer    back   to   the

“factors the Supreme Court deemed important” in Remmer itself.

Id.    Those factors are: any private communication; any private

contact;   any      tampering;   directly     or    indirectly      with    a   juror

during trial; about the matter before the jury.                    See id. (citing

Remmer, 347 U.S. at 229).

              Extrajudicial communications or contact with a juror

has been deemed to trigger Remmer in a variety of circumstances,

including:     a    juror   being   offered    a    bribe    during     trial    and

subsequently being investigated by an FBI agent, Remmer, 347

U.S. at 229-30; a juror applying for a job at the prosecuting

attorney’s office during the trial, Phillips, 455 U.S. 216-18; a

local restaurant owner suggesting to jurors in a capital case

                                       33
that “they ought to fry the son of a bitch,”                  Stockton, 852 F.2d

at   743;   and     allegations,     if    proven     to    be     true    during       an

evidentiary       hearing,   that    a     juror’s      husband     pressured           her

throughout the trial to vote for the death penalty, Fullwood,

290 F.3d 681-82.        See also Parker, 385 U.S. at 363-64 (finding

habeas petitioner was deprived of his right to an impartial jury

where the bailiff said, in the presence of certain jurors, that

petitioner was a “wicked fellow” and that he was guilty, and

later said to another juror, “[i]f there is anything wrong [in

finding petitioner guilty] the Supreme Court will correct it”

(alteration    in    original));     Turner,      379      U.S.    at     467-69,      474

(finding state defendant was denied the right to a trial by an

impartial   jury     where   two    deputy     sheriffs,     who    served        as   key

prosecution witnesses, were responsible for the sequestration of

the jury during which time they “ate with [the jury], conversed

with them, and did errands for them,” even where there was no

evidence that the deputies discussed the case with the jurors).

            Importantly,     each    of    the   illustrations            above    dealt

with external influences on jury deliberations.                     See Wolfe, 565

F.3d at 161 (“In its jury influence jurisprudence, the [Supreme]

Court    has      clearly     distinguished          between        external           jury

influences, on the one hand, and internal jury influences, on

the other.” (emphasis in original)).                  As we have recognized,

“[u]nder    clearly     established        Supreme      Court      case     law,”       an

                                          34
influence on a jury’s deliberative process is external if it is

either    “extraneous     prejudicial         information;         i.e.,   information

that was not admitted into evidence but nevertheless bears on a

fact at issue in the case,” or if it is “an outside influence

upon the partiality of the jury, such as private communication,

contact, or tampering . . . with a juror.”                     Robinson, 438 F.3d

at 363 (internal citations and quotation marks omitted).                              The

distinction     between    internal      and    external      jury     influences       is

critical because, unlike external influences, which “necessitate

a thorough judicial inquiry, no such obligation is imposed with

regard to an internal jury influence.”                  Wolfe, 565 F.3d at 161

(emphasis supplied); see also Robinson (explaining that Tanner

v.   United    States,    438   U.S.    107    (1987)    “establishes          that   the

Sixth     Amendment’s        guarantees         do     not     require         judicial

consideration of juror allegations regarding influences internal

to the deliberation process”).

                                         3.

              In the face of this clearly established Supreme Court

precedent available to guide a state court’s adjudication of a

claim    of   external    influences      on    a    jury’s    deliberations,         the

State    nonetheless      asserts      that    because       the    Supreme     Court’s

decisions       evaluating      external         influences          on    a     jury’s

deliberations      involved     different        factual      circumstances           than

those presented by Barnes, the Supreme Court “has given state

                                         35
courts    little    to    no    guidance”        in    adjudicating     such      claims.

Appellee Br. 21-22.         It is, therefore, the State’s position that

the MAR Court’s adjudication in this case could not have been an

unreasonable      application       of    clearly       established     federal      law.

The State is incorrect.

              Indeed,     Remmer    and    its     progeny      clearly     established

that a presumption of prejudice must be applied, and that a

hearing    must    be    held,     when    a     defendant      presents     a    genuine

allegation of communication or contact between a third party and

a juror concerning the matter pending before the jury.                           There is

no   requirement       under    AEDPA     that    a    habeas    petitioner       present

facts identical to those previously considered by the Supreme

Court to be entitled to relief.                 Panetti v. Quarterman, 551 U.S.

930, 953 (2007) (noting that “AEDPA does not ‘require state and

federal courts to wait for some nearly identical factual pattern

before    a    legal     rule    must     be     applied’”       (quoting    Carey     v.

Musladin, 549 U.S. 70, 81 (2006)                      (Kennedy, J., concurring in

judgment)));       see also Williams v. Taylor, 529 U.S. 362, 407

(2000)    (a      state        court’s     decision        is     an    “unreasonable

application” of clearly established federal law if the court

“identifies the correct governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it to the facts of the

particular state prisoner’s case” (emphasis supplied)).                             Thus,

as   illustrated,       this    clearly    established          legal   principle     can

                                           36
apply   to   myriad   factual   circumstances   involving   third   party

communications with jurors.

             Our § 2254 review of Barnes’ juror misconduct claim is

therefore guided by Remmer and the other clearly established

Supreme Court precedent described above concerning third party

communications with jurors.

                                    B.

   Unreasonable Application of Clearly Established Federal Law

             Having identified the clearly established federal law

governing Barnes’ juror misconduct claim, we must now determine

whether the MAR Court acted contrary to this clearly established

law, or applied it unreasonably, in failing to order a hearing

and failing to apply a presumption of prejudice after Barnes

presented allegations that a juror communicated with her pastor

about the death penalty during Barnes’ capital sentencing.             In

view of the evidence presented to the MAR Court, we conclude

that its adjudication of Barnes’ juror misconduct claim amounted

to an unreasonable application of clearly established federal

law.

                                    1.

             Immediately after the jury recommended that Barnes be

sentenced to death, the trial court was alerted to the fact that

one of the jurors “called a member of the clergy, perhaps a

relative of hers, to ask about a particular question as to the

                                    37
death penalty.”               J.A. 1602.         In response to the trial judge’s

inquiry regarding whether the juror “discussed the particular

facts    of   this        case     with    anybody      outside    the    jury,”       defense

counsel stated that there was “[n]o evidence that they did or

did    not    as     far      as   the     conversation         with    the    minister       is

concerned.”         Id.       Because defense counsel could not point to any

such    evidence         at    that      time,    the   trial     court       “den[ied]      the

request to start questioning [the] jury about what may or may

not have taken place during their deliberations of this trial.”

Id. at 1602-03.

              Barnes          provided     additional        details      concerning         the

juror’s communication with her pastor to the MAR Court.                                   In his

MAR, Barnes presented allegations that one or more jurors were

bothered      by    a     closing        argument     made   during      Barnes’       capital

sentencing hearing.                The closing argument in question was made

by a co-defendant’s attorney, in which he suggested that if the

jury returned a sentence of death, the jurors would one day face

God’s judgment for their actions.                       According to Juror Peacock,

the    closing      argument        “made       the   jury   furious.”          J.A.        1900.

Moreover, Juror Jordan noticed “that another juror, a female,

seemed    visibly         upset     by    the    argument.”        Id.    at        1898.     In

response, Juror Jordan contacted her pastor, Pastor Lomax, and

“discussed         the    lawyer’s        argument”     with     him.         Id.    at     1892.

During   their       conversation,          Pastor      Lomax    “told    [Juror]         Jordan

                                                 38
about another biblical passage which contradicted the passage

relied upon by the defense attorney.”                  Id.     Two other jurors

remembered that a juror talked to her pastor during the case.

In   particular,      Juror    Weddington     stated    that      “a   juror   named

‘Hollie’ brought a Bible into the jury room and read from it”

and that “Hollie also talked to her pastor during the case.”

Id. at 1902.          Additionally, Juror Allen “recalled discussions

about the fact that one of the jurors had brought in a [B]ible

and had talked with her pastor.”            Id. 14

             Barnes    presented    further     evidence     to    the   MAR   Court

that Juror Jordan brought her Bible into the jury deliberation

room and “read the passage suggested to her by [Pastor] Lomax to

all of the jurors.”           J.A. 1892.    Although Juror Jordan recalled

that the passage stated “that it [was] the duty of Christians to

abide by the laws of the state,” id. at 1898, Juror Peacock

stated that the passage “dealt with life and death,” id. at

1893.      In addition, Juror Weddington observed, “[t]he person who

brought in the Bible read a passage to a juror who was having a

hard time with the death penalty.”            Id. at 1892-93.




      14
        For his part, Pastor Lomax “could not recall the
conversation recounted by [Juror] Jordan.”    J.A. 1893.   He
stated, however, “that it [was] possible that he did talk to
[Juror Jordan] about the death penalty while she was a juror,
but he simply does not remember it.” Id.



                                       39
                                     2.

             After being presented with the allegations described

above, the MAR Court failed to apply Remmer or any reasonable

version of it.     As we have explained, Remmer imposes not only a

presumption of prejudice, but also entitles the defendant to an

evidentiary hearing when the defendant presents allegations of

an extraneous influence on the jury -- that is, communications

or contact between a third party and a juror concerning the

matter pending before the jury.           Remmer, 347 U.S. at 229-30;

Haley, 802 F.2d at 1535.           Here, it is without question that

Juror Jordan’s conversation with Pastor Lomax was a contact or

communication with a third party.          We must therefore determine

whether this contact concerned the matter pending before the

jury.

             An unauthorized contact between a third party and a

juror concerns the matter pending before the jury when it is “of

such    a   character   as   to   reasonably   draw   into   question   the

integrity of the verdict.”        Stockton, 852 F.2d at 743. 15   This is

       15
        As we have previously noted, Stockton was a 28 U.S.C.
§ 2254 case in which we applied Remmer. See Fullwood, 290 F.3d
at 678.    There, we explained that “when a habeas petitioner
bases a juror bias claim on improper communication between, or
improper influence exerted by, a nonjuror upon a juror, . . . he
‘must . . . establish both that an unauthorized contact was made
and that it was of such a character as to reasonably draw into
question the integrity of the verdict.” Id. (quoting Stockton,
852 F.2d at 743).


                                     40
a “minimal standard.”                   Cheek, 94 F.3d at 141.                    Indeed, all that

is    required       is       a    threshold         showing        that       “the     extrajudicial

communications             or        contacts              were         more      than        innocuous

interventions.”           Id. (internal quotation marks omitted).

               The     MAR         Court        greatly          distorted        Barnes’        burden,

requiring       much      more       of       Barnes       than     a     threshold       or     minimal

showing of potential juror bias.                                 Instead, to demonstrate an

entitlement       to      a       hearing,       the       MAR     Court       required    Barnes         to

present       evidence        that      a     juror        was     actually       biased       and    that

Barnes    was    therefore           actually          prejudiced          by    the     unauthorized

communication.            After concluding that Barnes’ new evidence “adds

nothing to the issue as it was presented during [his] original

appeal,”       J.A.       1883,         the     MAR        Court     incorporated          the       North

Carolina Supreme Court’s reasoning from the direct appeal, which

denied Barnes’            request         for    a     hearing       because       “[t]here          is   no

evidence       that       the      content       of        any     such    possible        discussion

prejudiced [Barnes],” State v. Barnes, 481 S.E.2d 44, 68 (N.C.

1997)    (emphasis         supplied).                Even     though       Barnes       alleged       that

Juror Jordan called Pastor Lomax and discussed the death penalty

with him while Juror Jordan was considering whether Barnes and

his co-defendants would live or die, the court did not consider

this conversation as involving “‘extraneous information’ . . .

or deal[ing] with the fairness and impartiality of the juror.”

Id.      In    essence,           the     MAR    Court        demanded          proof    of    a     Sixth

                                                      41
Amendment violation -- that is, proof of juror bias -- before

Barnes   was   entitled   to     any   relief.        Such   a    requirement     is

directly at odds with Remmer.                Certainly, if defendants were

required to prove juror bias before obtaining a hearing, the

Remmer hearing requirement, which is designed to determine “what

actually   transpired,     or    whether      the    incidents    that    may   have

occurred were harmful or harmless,” Remmer, 347 U.S. at 229,

would be utterly meaningless.             Therefore, no reasonable reading

of Remmer comports with the burden placed on Barnes by the MAR

Court.

           The   district     court’s     conclusion       that   Juror   Jordon’s

conversation     with   Pastor    Lomax      did    not   reasonably     draw   into

question the integrity of the verdict is similarly flawed.                        In

the   district      court’s      view,        Barnes’      allegations      simply

demonstrated     that   Pastor    Lomax      directed     Juror    Jordan   “to   a

portion of the Bible in response to a defense argument that was

most assuredly not before the jury -- i.e., whether God would

condemn a juror who voted to impose a death sentence.”                      Barnes

v. Lassiter, 1:08-CV-00271, 2013 WL 1314466, at *6 (M.D.N.C.

Mar. 28, 2013) (emphasis in original).               We cannot agree.       During

the sentencing phase of Barnes’ trial, the jury was charged with

deciding whether to impose a sentence of life imprisonment or a

sentence of death for Barnes and his co-defendants.                       Clearly,

then, “the matter before the jury” was the appropriateness of

                                        42
the death penalty for these defendants.                                   To the extent that a

juror had a conversation with a third party about the spiritual

or moral implications of making this decision, the communication

“was of such a character as to reasonably draw into question the

integrity       of    the        verdict,”       Stockton,           852     F.2d     at    743,       and

further inquiry in a Remmer hearing was required.

            Our dissenting colleague characterizes this analysis

as “conclud[ing] that the communication alleged here satisfies

Remmer because ‘the spiritual or moral implications of’ deciding

whether to impose death ‘clearly’ related to ‘the matter pending

before    the        jury.’”           Post     at    72.            The     dissenting         opinion

misconstrues          the     point.          Given        a        jury’s    role        during       the

sentencing phase of a capital case, “the matter pending before

the jury” is to determine whether or not the defendant ought to

receive the death penalty.                       See Caldwell v. Mississippi, 472

U.S.     320,        329     (1985)       (describing               the      duty     of        “capital

sentencers”          as     “the       serious       one       of     determining          whether      a

specific human being should die at the hands of the State”);

Stockton,       852       F.2d    at    746   (28     U.S.C.          §    2254     case    analyzing

Remmer    and    noting          that    “the    exact         issue”        for    jurors       in    the

sentencing phase of a capital case to decide is “whether to

impose the death penalty”).                     Here, as the dissent acknowledges,

during    the    sentencing            phase,     the      jury       was    presented          with    an

argument    from           defense      counsel       “suggest[ing]                that    if    jurors

                                                 43
returned a death sentence, they, the jurors would one day face

judgment for their actions.”               J.A. 1892 (emphasis supplied).

This    argument      was   directly    aimed    at    whether       the    jury   should

impose the death penalty, and at no point did the trial court

instruct the jury to disregard the argument.                         The argument was

thus squarely presented for the jury’s consideration as part of

their ultimate sentencing decision.

              After hearing the argument, Juror Jordan contacted her

pastor and “discussed the lawyer’s argument” with him.                               J.A.

1892.        During    their    conversation,         the    pastor       “told    [Juror]

Jordan      about    another   biblical    passage          which    contradicted      the

passage relied upon by the defense attorney.”                       Id.    We need look

no     further      than    these   allegations        to     conclude      that    Juror

Jordan’s conversation with a third party about defense counsel’s

argument, which asked the jury to return a sentence of life

imprisonment instead of death, bore on the jury’s sentencing

determination         and   was,    therefore,    “about       the    matter       pending

before the jury.”            To conclude otherwise would not simply be

incorrect or erroneous; it would be objectively unreasonable. 16


       16
        The dissent suggests that “it would not be ‘objectively
unreasonable’ for the state court to limit the scope of ‘the
matter pending before the jury’ to communication or contact
suggesting how the juror should vote in a particular case.”
Post at 73. In the dissent’s view, “[t]he North Carolina state
MAR [C]ourt could reasonably conclude that the type of
communication at issue here did not constitute contact ‘about
(Continued)
                                          44
                 Moreover,     in   discussing       whether      relief       under    Remmer

was warranted in this case, the dissent focuses not on what is

alleged         by   Barnes,   but    rather    on    what     is    missing         from   his

allegations.           In this regard, the dissent states, “[n]owhere in

the affidavits supporting his claim does Barnes suggest that the

pastor expressed his views of the death penalty either generally

or    as    applied      to    this   case.”         Post    at     75.        The     dissent

continues, noting that Barnes’ affidavits do not “support the

claim that the pastor attempted to persuade the juror to vote

for   or    against      the    death   penalty,       suggested          that   the     Bible

supported a particular sentence in this case, or exposed the

juror      to    any   extraneous     information       relevant          to   the     juror’s




the matter pending before the jury’ because it was not directed
to the choice of sentence, life in prison or death, that the
jury was ultimately charged to determine.”     Id. at 77-78.  We
could not disagree more.     Indeed, Barnes’ allegations satisfy
even this arguably more stringent standard offered by the
dissent. The alleged conversation at issue here was prompted by
a defense argument concerning the consequences for a juror who
votes to impose a death sentence for Barnes and his co-
defendants.    Juror Jordan and Pastor Lomax “discussed the
[defense] lawyer’s argument,” and Pastor Lomax “told [Juror]
Jordan about another biblical passage which contradicted the
passage relied upon by the defense attorney.” J.A. 1892. Thus,
Pastor Lomax’s communication bore directly on the very decision
facing Juror Jordan -- whether to impose the death penalty.
Even under the dissent’s proposed iteration of the relevant
standard, it is hard to see how this communication does not
“suggest[] how the juror should vote in a particular case,” see
post at 73, or how the communication “was not directed to the
choice of sentence, life in prison or death,” see post at 77.



                                           45
deliberative process.”              Id.     In making these observations, the

dissent       ignores   a    critical       component         underlying        the     Supreme

Court’s concern in cases involving juror bias -- that without a

hearing, a criminal defendant is deprived of the opportunity to

uncover facts that could prove a Sixth Amendment violation.                                 See

Remmer, 347 U.S. at 229 (“We do not know from this record, nor

does the petitioner know, what actually transpired, or whether

the    incidents        that       may     have        occurred         were     harmful     or

harmless.”); Remmer II, 350 U.S. at 379-80 (“It was the paucity

of information relating to the entire situation coupled with the

presumption      which      attaches       to    the      kind     of   facts     alleged    by

petitioner which, in our view, made manifest the need for a full

hearing.”); Smith, 455 U.S. at 215 (“This Court has long held

that the remedy for allegations of juror partiality is a hearing

in    which    the   defendant       has    the      opportunity         to     prove   actual

bias.”).

               The Supreme Court has cautioned, “[t]he integrity of

jury    proceedings         must    not     be       jeopardized         by     unauthorized

invasions.”          Remmer,       347    U.S.       at     229.        Here,    Barnes     has

sufficiently alleged a third party communication with a juror

that may well have jeopardized the integrity of the sentencing

phase of his trial.            The absence of evidence highlighted by the

dissent,      coupled    with      the    nature       of    Barnes’      allegations,       is



                                                46
precisely why Remmer requires the state courts to hold a hearing

in such cases.

            The district court concluded, however, that a hearing

in state court was not necessary because the “North Carolina

courts accepted . . . Barnes’ claims as true when they assessed

whether he had raised a constitutional claim warranting relief

and determined that he had not.”                Barnes, 2013 WL 1314466, at

*6.    But, when a court is presented with credible allegations of

juror communications with a third party about the matter pending

before the jury, Remmer requires a hearing.                  This requirement

cannot     be   circumvented      by     simply      accepting    the    factual

allegations as true.        Just as in Remmer, the MAR Court here,

faced with a credible claim of juror misconduct, “[did] not know

from     this   record,   nor    [did]        [Barnes]   know,   what   actually

transpired, or whether the incidents that may have occurred were

harmful or harmless.”           Remmer, 347 U.S. at 229.           Accordingly,

the district court incorrectly concluded that although there was

unauthorized contact between a juror and her pastor, Barnes was

not entitled to the Remmer presumption of prejudice or a Remmer

hearing.

            Barnes’ allegations raised a genuine concern of juror

impartiality, and due process therefore required the MAR Court

to remedy this allegation by ordering a hearing in which Barnes

would have enjoyed a presumption of prejudice.                   See Phillips,

                                         47
455 U.S. at 215; Haley, 802 F.2d at 1535.               By demanding that

Barnes prove prejudice before affording him a hearing, the MAR

Court turned Remmer on its head.           The MAR Court’s adjudication

was   an     objectively     unreasonable      application         of   clearly

established federal law to the facts of Barnes’ juror misconduct

claim,     see   Williams,   529   U.S.   at   407,   and    its   failure    to

investigate Barnes’ juror misconduct claim was thus an abuse of

discretion.

                                     3.

             The State nevertheless argues that the MAR Court did

not unreasonably apply clearly established federal law because

our court has previously determined, on § 2254 review, that it

was not unreasonable for a state court to conclude that the

presence of a Bible in the jury room was not an extraneous

prejudicial influence on a jury’s verdict.              Our “Bible in the

jury room” line of cases, however, is readily distinguishable.

In Robinson, for example, a juror asked the bailiff for a Bible

and subsequently read several passages out loud in the jury room

-- including at least one referring to “an eye for an eye” -- to

convince the other jurors to vote for a death sentence.                      438

F.3d at 357-58.      With respect to the Remmer issue, we held, “it

would have been reasonable for the MAR court to conclude that

the Bible is not analogous to a private communication, contact,

or tampering with a juror.”           Id. at 363.           Unlike a private

                                     48
communication with a third party, “which impose[s] pressure upon

a   juror   apart   from    the   juror    himself,         the    reading      of    Bible

passages    invites    the     listener        to   examine        his    or    her     own

conscience from within.”          Id.     Therefore, we concluded that the

Bible, standing alone, was not an “external influence,” as that

term was used in the Remmer line of cases.                        Id. at 363-64.         Of

particular relevance here, we further explained:

       The fact that the bailiff provided the Bible to the
       juror does not alter our conclusion that it was not an
       external influence. Robinson does not allege that the
       bailiff instructed the jury to consult the Bible, or,
       for that matter, that he did anything other than
       simply provide the Bible upon the juror’s request. On
       these facts, the MAR court reasonably could have
       concluded that the bailiff’s act of providing a Bible
       was nothing more than an innocuous intervention into
       the jury’s deliberations.

Id. at 366.

            Despite   the     State’s     arguments         to    the    contrary,      the

only similarity between the instant case and the “Bible in the

jury   room”   line   of     cases   is    the      Bible    itself.           Unlike   in

Robinson, where the juror in question was simply given a Bible

and read from it in the jury room, Barnes has alleged that Juror

Jordan was actually directed to a specific biblical passage by

her pastor in response to an argument about the death penalty

and that other jurors were aware that Juror Jordan had consulted

her pastor in this regard.           We alluded that Robinson might have

been a different case if the bailiff had “instructed the jury to


                                          49
consult the Bible” or done “anything other than simply provide

the Bible upon the juror’s request.”                438 F.3d at 366.         Barnes

has presented that case -- his allegations clearly indicate that

Pastor Lomax did not simply provide Juror Jordan with a Bible.

In     sum,    because     Robinson    did    not    involve      any     extraneous

communication or contact between a juror and a third party, it

does not change our conclusion that the MAR Court unreasonably

applied       clearly    established     federal     law    by    simply     denying

Barnes’ juror misconduct claim without applying a presumption of

prejudice and ordering a Remmer hearing.

                                         C.

              Substantial and Injurious Effect or Influence

              Despite      our     conclusion       that    the     MAR      Court’s

adjudication       of     Barnes’     juror     misconduct        claim     was    an

unreasonable application of clearly established federal law, “we

are not permitted to grant habeas relief unless we are convinced

that    the    error     had   a   ‘substantial     and    injurious      effect   or

influence in determining the jury’s verdict.’”                     Fullwood, 290

F.3d at 679 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637

(1993)).       This means that before we can grant habeas relief, we

must conclude that the MAR Court’s error “actually prejudiced”

Barnes.        Bauberger, 632 F.3d at 104.                “If we are in ‘grave

doubt’ as to the harmlessness of an error, the habeas petitioner

must prevail.”           Fullwood, 290 F.3d at 679 (citing O’Neal v.

                                         50
McAninch,     513    U.S.   432,       436   (1995)).      “‘Grave      doubt’     exists

when, in light of the entire record, the matter is so evenly

balanced      that    the   court      feels      itself   in    ‘virtual      equipose’

regarding the error’s harmlessness.”                 Id.

              In      the       district       court’s         assessment,         Barnes’

allegations failed to demonstrate that Juror Jordan’s contact

with    Pastor      Lomax   had    a   substantial       and    injurious      effect    or

influence on the jury’s verdict.                  This conclusion, however, was

based on the district court’s erroneous holding that the MAR

Court did not unreasonably apply clearly established federal law

in    denying      Barnes   a     presumption       of   prejudice     and     a    Remmer

hearing.      Moreover, given the state court’s complete failure to

investigate Barnes’ juror misconduct claim, the district court

had    no   basis    from   which      to    determine     whether     Juror    Jordan’s

communication with her pastor was harmless.

              Based on the record before us, it is unclear whether

Barnes      can    demonstrate      actual     prejudice        or   whether    the     MAR

Court’s unreasonable application of federal law was harmless.

See Fullwood, 290 F.3d at 682 (“Given the paucity of the record

and the lack of any factual findings, . . . we are unable to

determine whether an outside influence upon [the juror] had a

‘substantial and injurious effect or influence in determining

the jury's verdict.’” (quoting Brecht, 507 U.S. at 637)).                             What

is clear, however, is that Barnes must be given the opportunity

                                             51
to prove actual prejudice.              Accordingly, we will remand for the

district court to conduct an evidentiary hearing solely on the

issue of whether the state court’s failure to apply the Remmer

presumption and failure to investigate Juror Jordan’s contact

with    Pastor   Lomax    had    a    substantial       and    injurious     effect   or

influence on the jury’s verdict.                See id.; Hall, 692 F.3d at 807

(explaining      that    the    court   is     “uncertain      as    to   whether    [the

habeas petitioner] was actually prejudiced by the state courts’

constitutional       error,     given    the    dearth    of    information     before

[the court]” and remanding for a hearing on actual prejudice).

            As the Seventh Circuit has recently explained, “[t]he

Remmer presumption is meant to protect against the potential

Sixth    Amendment      harms    of   extraneous       information        reaching    the

jury, but a state court’s failure to apply the presumption only

results in actual prejudice if the jury’s verdict was tainted by

such information.”         Hall, 692 F.3d at 805.               Barnes will not be

entitled to the Remmer presumption in attempting to make this

showing because the presumption does not apply in the federal

habeas context when proving a substantial and injurious effect

or influence on the jury’s verdict.                   See Lawson, 677 F.3d at 644

(citing    Vigil   v.    Zavaras,       298    F.3d    935,    941   n.6    (10th    Cir.

2002)).    Therefore, to be entitled to habeas relief, Barnes will

need to affirmatively prove actual prejudice by demonstrating



                                          52
that    the     jury’s    verdict   was      tainted   by     the   extraneous

communication between Juror Jordan and Pastor Lomax.

                                       IV.

              Pursuant   to   the   foregoing,     the      judgment        of    the

district court is reversed, and this matter is remanded to the

district court for an evidentiary hearing to determine whether

the state court’s failure to apply the Remmer presumption and

its    failure    to     investigate    Barnes’    allegations         of        juror

misconduct in a hearing had a substantial and injurious effect

or influence on the jury’s verdict.

                                                       REVERSED AND REMANDED




                                       53
AGEE, Circuit Judge, dissenting:

       The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) limits when a federal court may grant habeas relief to

a state prisoner.            28 U.S.C. § 2254(d).                   The majority agrees

with Barnes that the North Carolina state courts’ adjudication

of     his     claim     satisfies        AEDPA’s           requirements        because      it

unreasonably         applied     Remmer     v.    United       States,        347   U.S.    227

(1954).      I disagree, and therefore respectfully dissent.



                                             I.

       AEDPA—which requires federal courts to give deference to

state    court     adjudications       in    close          cases   involving       uncertain

Supreme      Court     precedent—dictates             the    proper    outcome       in    this

case.        See Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per

curiam) (“A federal court may not overrule a state court for

simply holding a view different from its own, when the precedent

from    [the      Supreme]     Court   is,       at    best,    ambiguous.”).             Under

AEDPA, a federal court “shall not” grant habeas relief “to any

claim      that    was   adjudicated         on       the     merits     in    State      court

proceedings unless the adjudication of the claim” “resulted in a

decision       that    was   contrary       to,       or    involved     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). 1             The    majority         opinion     acknowledges           AEDPA’s

constraints only in the abstract, while simultaneously analyzing

the case at bar as if it were on direct appeal from the trial.

Thus,       the     majority     opinion     engages        in    a    first-impression

analysis        that    substitutes       “its    independent       judgment     that    the

relevant          state-court      decision        applied       clearly      established

federal law erroneously or incorrectly,” a result AEDPA does not

permit.           See   Williams    v.    Taylor,    529     U.S.     362,    411    (2000).

Given       the     centrality       of     appellate        application        of     AEDPA

deference, I begin by reviewing its demands on federal courts

examining state court decisions.



                                             A.

       Recent Supreme Court opinions addressing § 2254 unfailingly

and    repeatedly        impress     upon    circuit       courts     of     appeals    “the

substantial         deference      that    AEDPA    requires”       federal     courts    to

give       to   state    court   adjudications        of    state     prisoner       claims.

White v. Woodall, --- U.S. ---, No. 12-794, 2014 WL 1612424, at

*2 (observing that § 2254(d)’s limitations are “a provision of

law that some federal judges find too confining, but that all

federal judges must obey”); Nevada v. Jackson, 133 S. Ct. 1990,

       1
        Barnes relies on the “unreasonable application                                   of”
component of § 2254(d)(1) rather than the “contrary                                      to”
component.



                                             55
1994 (2013) (per curiam); Burt v. Titlow, 134 S. Ct. 10, 16

(2013) (“AEDPA erects a formidable barrier to federal habeas

relief for [state] prisoners.”); Greene v. Fisher, 132 S. Ct.

38, 43 (2011) (observing that AEDPA’s standard is “difficult to

meet, because [its purpose] is to ensure that federal habeas

relief functions as a guard against extreme malfunctions in the

state criminal justice systems, and not as a means of error

correction” (internal quotation marks omitted)); Harrington v.

Richter, 131 S. Ct. 770, 785 (2011) (“A state court must be

granted a deference and latitude that are not in operation when

the case involves review under” direct review.); Renico v. Lett,

559 U.S. 766, 773 (2010) (explaining that AEDPA “‘demands that

state-court     decisions      be    given     the    benefit      of    the   doubt’”

(quoting Woodford        v.   Visciotti,       537    U.S.   19,   24    (2002)   (per

curiam)).     The Supreme Court has also warned against “collapsing

the distinction between ‘an unreasonable application of federal

law’ and . . . ‘an incorrect or erroneous application of federal

law.”   Jackson, 133 S. Ct. at 1994 (quoting Williams, 529 U.S.

at 412).

      A state court’s decision is an “unreasonable application

of”   Supreme    Court    case      law   if    the    state    court      “correctly

identifies the governing legal rule but applies it unreasonably

to the facts of a particular prisoner’s case.”                          Williams, 529



                                          56
U.S. at 407-08. 2            Limiting the “unreasonable application” prong

further,       the      Supreme      Court    recently      rejected       the     Fourth

Circuit’s additional characterization that a state court could

unreasonably         apply     Supreme   Court    precedent     by    “unreasonabl[y]

refus[ing] to extend a legal principle to a new legal context

where it should apply.”              White, 2014 WL 1612424, at *8 (“To the

extent the unreasonable-refusal-to-extend rule differs from the

one embraced in Williams and reiterated many times since, we

reject it.         Section 2254(d)(1) provides a remedy for instances

in   which     a       state    court    unreasonably       applies       this   Court’s

precedent;      it      does   not   require      state    courts    to    extend    that

precedent or license federal courts to treat the failure to do

so   as    error.”).            Moreover,     where       the   Supreme     Court    has

articulated        a    broader     governing     principle,     courts     have    “more

leeway     .       .     .     in    reaching       outcomes        in     case-by-case

determinations” than where the Court has articulated a narrower

rule.     Harrington, 131 S. Ct. at 786 (internal alteration and

quotation marks omitted).


     2
        As   the  majority   opinion notes,  a   state  court’s
adjudication on the merits “need not cite or even be aware of
[Supreme Court] cases” or explain its rationale for this Court
to be owed deference under § 2254(d). Harrington, 131 S. Ct. at
784. Even where the state court’s decision does not explain its
reasoning or does so broadly, “the habeas petitioner’s burden
still must be met by showing there was no reasonable basis for
the state court to deny relief.” Id.



                                             57
       AEDPA    deference       to   state    court      decisions       means      that    “a

federal habeas court may overturn a state court’s application of

clearly established federal law only if it is so erroneous that

‘there is no possibility fairminded jurists could disagree that

the state court’s decision conflicts with [the Supreme] Court’s

precedents.’” Jackson, 133 S. Ct. at 1992 (quoting Harrington,

131 S. Ct. at 786); see also White, 2014 WL 1612424, at *8 (“The

critical point is that relief is available under § 2254(d)(1)’s

unreasonable-application             clause       if,   and     only    if,    it    is    so

obvious that a clearly established rule applies to a given set

of facts that there could be no ‘fairminded disagreement’ on the

question.”).         And in undertaking its review, a federal court is

not    constrained      by     the   state    court’s         express    reasoning,        but

instead “must determine what arguments or theories supported or,

as    here,    could    have    supported,        the    state       court’s    decision.”

Harrington, 131 S. Ct. at 786.                    Although the majority opinion

fleetingly purports to apply AEDPA deference, it in truth simply

disagrees with an interpretation of Remmer that would allow the

state court to conclude that the conversation alleged to have

occurred here was not about a “matter pending before the jury.”

Cf.    Maj.    Op.     at    42.      In     doing      so,    the     majority     opinion

“disregards      perfectly         reasonable       interpretations           [of   Supreme

Court precedent] and hence contravenes § 2254(d)’s deferential

standard of review.”           See White, 2014 WL 1612424, at *6.

                                             58
                                      B.

       Through the applicable AEDPA lens, then, I consider the

North Carolina courts’ decisions denying Barnes a presumption of

prejudice or an evidentiary hearing in light of his allegation

that   a   juror   communicated     with   her   pastor   during   sentencing

deliberations.       This inquiry entails examining the context and

nature of Barnes’ allegations as well as the applicable Supreme

Court precedent.

       During closing arguments for the sentencing phase of Barnes

and his co-defendants’ trial, one co-defendant’s attorney told

any “true believers” on the jury that “all of us will stand in

judgment [before God] one day.”             The attorney urged the jurors

to consider their judgment day before God and whether God would

praise them for not violating His commands—including “Thou shalt

not kill”—even if the state authorized sentencing a person to

death.     (J.A. 1532-33.)       The defense argument about the eternal

consequences to the jury’s decision left several jurors visibly

affected and, in one juror’s words, “furious.”                  (J.A. 1900.)

For reasons unexplained in the record and only speculated to

during oral argument, the prosecution did not object to this

argument.

       Following the jury’s deliberations and recommendation that

Barnes     be   sentenced   to   death,    Barnes’   attorney   informed   the

trial court that he had been apprised that one juror had spoken

                                      59
to “a member of the clergy” during the trial “about a particular

question as to the death penalty.”                 (J.A. 1602.)        Because Barnes

had no evidence that the juror discussed “the particular facts

of this case with anybody outside the jury,” the trial court did

not allow the jurors to be questioned about this incident and

denied Barnes’ motion for a new trial.                   (J.A. 1602-03.)

      Barnes argued on direct appeal that the trial court abused

its discretion by denying his motion and not investigating this

allegation    of   juror        misconduct.        The    North     Carolina       Supreme

Court    assumed   that     Barnes’       allegations       regarding       third-party

contact were true, but concluded that the trial court had not

abused its discretion when confronted by a “mere unsubstantiated

allegation” that did not call into question “the fairness or

impartiality of the juror.”              (J.A. 1854-55.)           In particular, the

North Carolina Supreme Court noted the absence of evidence that

the communication “prejudiced [Barnes] or that the juror gained

access to improper or prejudicial matters and considered them

with regard to this case.”              (J.A. 1855.)

      When   filing       his    North     Carolina       Motion     for    Appropriate

Relief    (“MAR”),     Barnes       attached       several    affidavits           and     an

interview    summary      purporting       to   support      his    claim     of    “juror

misconduct and extraneous influences on the jury.”                         (J.A. 1882.)

An   affidavit     from    Barnes’       private      investigator         averred       that

juror    Hollie    Jordan        told    him    she      believed     that     the       co-

                                           60
defendant’s         attorney   had    “quot[ed]     scripture   out    of    context”

when he asserted “the jurors would one day face judgment for

their actions” if they sentenced the defendants to death.                            She

“called her pastor” and “discussed the lawyer’s argument with”

him,       during    which   time    the   pastor   informed    her    of    “another

biblical passage which contradicted the passage relied upon by

the    defense       attorney.”       (J.A.     1892.)     On   the    day    of     her

interview with the private investigator, Ms. Jordan signed an

interview summary that does not mention any conversation with

her pastor.          Instead, Ms. Jordan’s signed statement says that

she was troubled by the co-defendant’s attorney’s argument, and

that       she      “brought     a    Bible     from     home   into        the     jury

deliberation[,] she read an unspecified passage from the Bible

stating that it is the duty of Christians to abide by the laws

of the state[, and that she] knew the passage from church.”

(J.A. 1898.) 3

       Several other jurors recalled that one or more jurors read

from the Bible during the course of the jury’s deliberations.

None of the jurors could remember the verses read, but some of

them recalled that they at least in part related to the co-

defendant’s         attorney’s    troubling     closing   argument,     and       “dealt

       3
       Juror Jordan’s pastor did not recall conversing with Ms.
Jordan, but admitted it was possible that he had done so and
“simply [did] not remember it.” (J.A. 1893.)



                                           61
with life and death.”           A few jurors also recalled that a juror

had talked to her pastor during the proceedings.                        (J.A. 1892-93,

1900, 1902-03.)

      The     North   Carolina       MAR    court     denied     Barnes’         claims     as

“procedurally     barred       and    without       merit,”    explaining         that     the

evidence    acquired     after       the    direct    appeal     did    not       alter    the

nature   of    Barnes’     claims,         which    were   “subject         to    the     same

analysis      inherent    in      the      [North    Carolina     Supreme          Court’s]

decision.”      (J.A. 1883.)

      Barnes thereafter timely filed a § 2254 petition for a writ

of   habeas    corpus    in    the      U.S.    District      Court    for       the   Middle

District of North Carolina.                    Relevant to this appeal, Barnes

once again alleged that juror misconduct during the sentencing

deliberations violated his due process rights.                        Specifically, he

asserted that a juror improperly asked her pastor for advice

“about the biblical correctness of a defense closing argument”

(J.A. 1631), that the juror then improperly tainted the jury

deliberation by reading Bible verses to other jurors, and that

the state court erred by not granting Barnes a presumption of

prejudice or conducting an evidentiary hearing to establish the

prejudicial effect of these incidents.                        (J.A. 1627-40.)              The

district      court      denied       Barnes’        petition,        but        granted     a

certificate of appealability “with respect to the issue whether

a juror’s contact with her pastor violated [his] Sixth Amendment

                                               62
right to a fair trial.”           (J.A. 2181.) 4



                                             C.

       Barnes    alleges,    as    he    did      below,   that    the     state   courts

unreasonably applied Supreme Court precedent by denying him a

presumption of prejudice arising from the juror’s conversation

with her pastor.          He asserts that this conversation “constituted

an impermissible external influence on the deliberating jury,”

which entitles him to a new sentencing hearing.                            (Opening Br.

18.)       In   the   alternative,      he     asserts     that    the     state   courts

unreasonably applied Supreme Court precedent by denying him the

opportunity to prove actual prejudice at an evidentiary hearing.

       The Sixth Amendment’s due process right to a jury trial

encompasses being tried “by a panel of impartial, indifferent

jurors.”         Turner     v.    Louisiana,        379    U.S.    466,     471    (1965)

(internal       quotation    marks      omitted).          And    “[t]he    failure    to

       4
       Barnes continues to press the impropriety of reading the
Bible during deliberations inasmuch as he alleges that the juror
communicated information originally given to her from her pastor
to the jury.     To the extent that reading the Bible during
deliberations   would  present   a  separate   claim  of   juror
misconduct, that claim is not properly before this Court.
Moreover, the analysis for the juror contact claim turns on the
conversation alleged to have occurred between the juror and her
pastor, not on what the juror did thereafter.           If that
communication did not trigger Remmer, then nothing the juror did
thereafter would present a different claim than the separate,
“reading the Bible during deliberations” claim for which Barnes
has not been issued a COA.



                                             63
accord    an   accused    a       fair    hearing    violates     even     the    minimal

standards of due process.”                Id. at 471-72.        This constitutional

concern forms the basis for a limited exception to “the near-

universal and firmly established common-law rule in the United

States    [that]      flatly        prohibit[s]       the     admission      of      juror

testimony to impeach a jury verdict.”                   Tanner v. United States,

483 U.S. 107, 117 (1987).                The exception permits juror testimony

regarding      “whether       extraneous         prejudicial         information        was

improperly     brought       to    the     jury’s    attention       or    whether      any

outside    influence      was      improperly       brought     to    bear    upon      any

juror.”    Id. at 121 (quoting Federal Rule of Evidence 606(b)). 5

     Barnes’      allegations        fall    within     two   overlapping        sets    of

Supreme   Court      cases    related       to   this   narrow       exception:      those

dealing    with      third-party         contact    during    a   trial      and   those

dealing with juror misconduct during a trial.                             See Smith v.

Phillips,      455     U.S.        209,     221-22      (1984)       (O’Connor,         J.,

concurring). 6     That said, the Supreme Court has considered claims


     5
       North Carolina Rule of Evidence 606(b) mirrors the federal
exception. See N.C. Gen. Stat. § 8C-1, Rule 606(b).
     6
       Allegations of juror misconduct are further broken down
into those alleging extraneous juror misconduct and those
alleging internal juror misconduct.   Although the line between
these two types of misconduct is not always clear, the
distinction creates important consequences when analyzing a
petitioner’s claim in light of the applicable evidentiary rules.
See Tanner, 483 U.S. at 116-22 (discussing the common law rule
adopted in federal court prohibiting juror testimony on matters
(Continued)
                                            64
based on jury bias arising from third-party contact during the

course of a trial in only a handful of cases.

       The cornerstone of Barnes’ argument rests on Remmer, in

which the Supreme Court considered what due process required

when Remmer alleged an improper external influence on a juror

arising from a third-party telling the juror he “could profit by

bringing in a verdict favorable to” one party.                         347 U.S. at 228.

The juror told the trial court about this contact, and the trial

court       reported       the    contact        to     the     Federal     Bureau     of

Investigation,         which     investigated         the     matter    further.      Id.

Remmer      moved    for    a    new   trial,     alleging       that    this   external

contact with the juror deprived him of a fair trial.                               Id. at

229.     The district court denied the motion without holding a

hearing (which Remmer had requested) to examine the interaction

and its effect.         Id.      The Supreme Court remanded the case for an

evidentiary hearing, stating:

       In    a      criminal      case,   any         private     communication,



affecting the jury’s deliberation, and the narrow exception to
that rule permitting juror testimony in situations in which an
“extraneous influence” is alleged to have affected the jury).
     Because Barnes’ claim is now limited to the juror’s
conversation with her pastor—as opposed to a juror reading the
Bible during deliberations—the analysis focuses on precedent
relating to extraneous juror misconduct. Cf. Robinson v. Polk,
438   F.3d  350,   359-68 (4th    Cir.  2006)   (discussing   this
distinction in juror misconduct jurisprudence in the context of
juror’s use of the Bible during deliberations).



                                            65
       contact, or tampering, directly or indirectly with a
       juror during a trial about the matter pending before
       the jury is, for obvious reasons, deemed presumptively
       prejudicial, if not made in pursuance of known rules
       of the court and the instructions and directions of
       the court made during the trial, with full knowledge
       of the parties.    The presumption is not conclusive,
       but the burden rests heavily upon the Government to
       establish, after notice to and hearing of the
       defendant, that such contact with the juror was
       harmless to the defendant.

Id.    The Supreme Court observed that the record before it did

not reflect “what actually transpired, or whether the incidents

that may have occurred were harmful or harmless,” so a hearing

was necessary.         Id.      It vacated the lower court’s judgment and

remanded the case to the district court for a hearing.                              Id. at

230.

       In Parker v. Gladden, 385 U.S. 363 (1966) (per curiam), the

Supreme Court held that a defendant was entitled to a new trial

because a bailiff had stated to or in the presence of one or

more    jurors     that      the    defendant      was     a    “wicked     fellow”     and

“guilty,”       and    that     “[i]f      there    [was]        anything       wrong   [in

convicting him,] the Supreme Court [would] correct it.”                             Id. at

363-64.      The      Supreme      Court   observed        that      this   communication

implicated the defendant’s constitutional rights to be tried by

an impartial jury and to confront the witnesses against him.

Id.    at   364.       And    it    concluded       that       the   communication      was

prejudicial because the bailiff was an officer of the court and

the    state,    had    “shepherd[ed]        [the    jury]        for   eight    days   and

                                            66
nights,”    and    made     statements       “involv[ing]        such     a    probability

that prejudice will result that it is deemed inherently lacking

in due process.”        Id. at 365.

       In Turner v. Louisiana, 379 U.S. 466 (1965), the Supreme

Court considered a different type of third-party influence on

the     jury’s     deliberation:         two       deputy      sheriffs        were        both

“principal       witnesses      for   the     prosecution”        at    the        trial    and

charged with keeping the jury sequestered.                       Id. at 467-68.             The

court    explained      that    the   latter       “meant    that      the    jurors       were

continuously       in   the     company      of     [these     witnesses           and   other

sheriff deputies] during the three days that the trial lasted.

[They] drove the jurors to a restaurant for each meal, and to

their    lodgings       each    night.            The   deputies       ate     with      them,

conversed with them, and did errands for them.”                               Id. at 468.

Although     the    evidence      did       not     indicate     that        the    deputies

discussed    the     case      with   the    jurors      while      discharging          these

duties, id. at 469, 473, the Supreme Court nonetheless held that

this    interaction       unconstitutionally            tainted     the       proceedings.

Id. at 472-73.       The Court explained:

       even if it could be assumed that the deputies never
       did discuss the case directly with any members of the
       jury, it would be blinking reality not to recognize
       the extreme prejudice inherent in this continual
       association throughout the trial between the jurors
       and these two key witnesses for the prosecution.   We
       deal here not with a brief encounter, but with a
       continuous and intimate association throughout a
       three-day  trial—an   association  which  gave  these

                                             67
        witnesses   an  opportunity               .  .   .  to       renew          old
        friendships and make new                  acquaintances      among          the
        members of the jury.

Id.   at 473.

      Most recently, in Smith v. Phillips, 455 U.S. 209 (1984),

the Supreme Court rejected a petitioner’s argument that he was

entitled to a new trial after a juror submitted an employment

application to the prosecutor’s office during the course of the

trial.      The Court noted that in Remmer, the “attempted bribe,

which      [was]    ‘presumptively         prejudicial,’         [coupled       with]     the

undisclosed        investigation,         which    was    ‘bound     to    impress        the

juror” required a hearing at which the parties could determine

the     prejudicial     impact       of    these     events.        Id.        at    215-16.

However, the Court observed that “shield[ing] jurors from every

contact      or    influence    that       might    theoretically         affect      their

vote,” was “virtually impossible,” and held that a new trial was

unnecessary each time such an allegation or incident occurred.

Id.   at    217.      Instead,       the   Supreme       Court    reiterated         that   a

hearing—such as the one the trial court held in that case—could

ensure the jury decided the case based “solely on the evidence

before it” and did not prejudice the defendant.                     Id.

      While        Barnes’    argument       regarding       “clearly          established

Supreme     Court”     case    law   rests    on    Remmer,      each     of    the     above

Supreme Court cases informs how that precedent has been applied

and how a court should assess allegations of juror misconduct or

                                            68
third-party influence during a trial.                I agree with the majority

that Remmer is clearly established Supreme Court precedent, but

after   reviewing      Barnes’   claims      under    the    AEDPA      standards    of

review, I conclude that the North Carolina state courts did not

unreasonably apply Remmer.



                                        D.

       Analyzing     Remmer’s    applicability         to    the     case      at   bar

requires first looking to what the Supreme Court set forth as

the component parts of its rule, that being:                       “In a criminal

case, any private communication, contact, or tampering, directly

or indirectly, with a juror during a trial about the matter

pending     before     the   jury     is,    for     obvious      reasons,      deemed

presumptive prejudicial” except under circumstances not relevant

here.     347 U.S. at 229 (emphasis added).             Read in the context of

the Supreme Court’s actual holding, Remmer’s broad reference to

“any     private       communication,        contact,       or     tampering”        is

immediately      constricted     by   the     narrowing      clause      “about     the

matter pending before the jury.”               This limitation makes sense

given     that   the    Remmer      presumption      flows       from    the    narrow

exception to the common law prohibition—now expressed in the

rules of evidence—against soliciting juror testimony to impeach




                                        69
the verdict. 7      See Robinson, 438 F.3d at 359-61 (discussing these

principles); Stockton v. Virginia, 852 F.2d 740, 743-44 (4th

Cir. 1988) (same).          Whatever Remmer’s scope, then, it must be

understood as part of a limited exception to the normal rules

governing the finality of the verdict and prohibiting courts

from entertaining post-judgment evidence to impeach the jury’s

verdict.

     As    the   majority    opinion   correctly      recognizes,    not   every

third-party       contact     implicates      Remmer’s      presumption      of

prejudice.       Supra Maj. Op. at 32-35.        See, e.g., United States

v. Blauvelt, 638 F.3d 281, 294-95 (4th Cir. 2011) (holding, on

direct    review,    that   third-party     contact    between   a   juror   and

prosecutor unaffiliated with the case during the course of the

trial was “inadvertent and innocuous” and thus did not trigger

Remmer’s presumption even though the juror mentioned her jury


     7
         Federal Rule of Evidence 606(b) states:
     During an inquiry into the validity of a verdict or
     indictment, a juror may not testify about any
     statement made or incident that occurred during the
     jury’s deliberations; the effect of anything on that
     juror’s or another juror’s vote; or any juror’s mental
     processes concerning the verdict or indictment.    The
     court may not receive a juror’s affidavit or evidence
     of a juror’s statement on these matters.
There are three exceptions, permitting jurors to testify about
whether “extraneous prejudicial information was improperly
brought to the jury’s attention”; “an outside influence was
improperly brought to bear on any juror”; or “a mistake was made
in entering the verdict on the verdict form.”


                                       70
service     and     expressed      new-found         respect        for       the    prosecutor’s

job);    Wolfe      v.    Johnson,       565     F.3d      140,     162       (4th       Cir.   2009)

(holding, in § 2254(d) context, that the state court did not

unreasonably apply Remmer in concluding Wolfe failed to show

that    a   juror’s        numerous          telephone      conversations                during      the

course      of     jury     deliberations            constituted             an     impermissible

external jury influence).                In applying Remmer in previous cases,

this     Court      has     held       that     in        order    to        trigger          Remmer’s

presumption,        “a     §    2254     petitioner         must        show       both       that    an

‘unauthorized        contact       was       made    and     that       it     was       of    such    a

character as reasonably to draw into question the integrity of

the verdict.’”           Wolfe, 565 F.3d at 162 (internal quotation marks

omitted) (emphasis added).

       Significantly,           neither       Remmer       nor    any    subsequent            Supreme

Court case has elaborated on when interaction between a juror

and third party is “about the matter pending before the jury.”

An area undefined by the Supreme Court thus exists between the

general          principle        espoused           in      Remmer           and         acceptable

interpretations—including                limitations—of                it.           Rather       than

calling those parameters into question in the first instance,

under    AEDPA,      the       Court    may     only      grant     relief          if    the   state

courts’      conclusion          that        Barnes’       allegations              fell      outside

Remmer’s     scope        was    “unreasonable.”                 And     in       examining       that

question,        AEDPA     does        not    permit        this       Court        to     equate     a

                                                71
conclusion that the state’s application of Remmer is incorrect

to its being unreasonable.                 See, e.g., Jackson, 133 S. Ct. at

1994.

     The     majority     opinion        concludes          that    the    communication

alleged here satisfies Remmer because “the spiritual or moral

implications       of”   deciding        whether       to   impose      death        “clearly”

related to “the matter pending before the jury.”                               Maj. Op. at

42-43.       However,     it       offers    no    substantive          basis        for   this

conclusion    grounded        in    Supreme      Court      precedent,         nor    does    it

grapple with arguments or theories that could have supported the

state    court’s    decision        to   the     contrary.         In     so    doing,       the

majority opinion treats the issue before us as if it were here

on direct appeal from the trial court and not a § 2254 petition

constrained    by     AEDPA.         The    majority        opinion       thus       fails    to

undertake the appropriate review under AEDPA, see Harrington,

131 S. Ct. at 786, and fails to recognize the lack of clearly

established Supreme Court case law mandating the interpretation

of   Remmer    that      it    adopts.            In     doing     so,     the        majority

transgresses the Supreme Court’s admonition in Jackson against

“collapsing the distinction between an unreasonable application

of federal law” and what the majority now views as “an incorrect

or erroneous application of federal law.”                          133 S. Ct. at 1994

(quoting Williams, 529 U.S. at 412); see also Harrington, 131 S.

Ct. at 786 (“It bears repeating that even a strong case for

                                            72
relief does not mean the state court’s contrary conclusion was

unreasonable.”).

       To    determine       what      constraints      Remmer     posed     generally—and

specifically         what    reasonable         interpretations         of     “the      matter

pending before the jury” might exist—I return to the controlling

Supreme Court case law, beginning with Remmer.                             When that case

returned to the Supreme Court, the Supreme Court explained that

the earlier remand for an evidentiary hearing had been necessary

because of “the paucity of information relating to the entire

situation coupled with the presumption which attaches to the

kind    of     facts    alleged        by   petitioner[.]”            Remmer       v.   United

States, 350 U.S. 377, 379-80 (1956) (emphasis added).                               In light

of the plain language in both Remmer decisions describing why

the    presumption      and       hearing    were      necessary      in   that     case,    it

would not be “objectively unreasonable” for the state court to

limit    the    scope       of    “the   matter       pending    before      the    jury”    to

communication or contact suggesting how the juror should vote in

a particular case.

       The     majority      correctly       posits      that     a    state       court    may

unreasonably         apply       Supreme     Court      precedent      even        where    the

Supreme      Court     has       not   issued    an    opinion     involving        a   nearly

identical fact pattern.                See Maj. Op. at 36.            Federal courts can

grant habeas relief when state court adjudications are either

“contrary       to”     or       “unreasonable         application[s]         of”       clearly

                                                73
established Supreme Court precedent, § 2254(d)(1).                         The point,

however, is that to prevail under § 2254, a petitioner must show

more than just the misapplication of Supreme Court precedent or

an erroneous decision.            As set out earlier, AEDPA mandates a

much higher bar, and where the Supreme Court has not spoken on a

particular    aspect     of   a   claim,    more    room      exists     for   a   state

court’s adjudication of the claim to be reasonable.                        See, e.g.,

White, 2014 WL 1612424, at *6 (observing that “where the precise

contours of [a] right remain unclear, state courts enjoy broad

discretion     in    their    adjudication         of     a    prisoner’s      claims”

(internal quotation marks omitted)); Renico, 559 U.S. at 773-79

(applying this standard where the state court and circuit court

of appeals offered conflicting interpretations of the record,

both of which were “reasonable” and concluding that the state

court’s       adjudication         was         therefore         not      objectively

unreasonable);       Mitchell,     540     U.S.    at   17-18     (discussing        and

applying     why    an   erroneous       state    court       decision    is   not    an

objectively unreasonable state court decision).                          Cf. supra at

[2-5].     Applied to this case, it is a far cry from limiting

Remmer to a nearly identical factual scenario (i.e., a potential

bribe) to conclude that whatever defines the proper scope of

“the matter pending before the jury,” it does not extend to the

allegations at issue here.



                                          74
       Returning to the actual allegations contained in Barnes’

affidavits, 8 the only contact alleged to occur between the juror

and her pastor is a conversation regarding whether jurors would

face       judgment     from   God      if    they    sentenced       someone    to     death.

(J.A. 1892.)            Nowhere in the affidavits supporting his claim

does Barnes suggest that the pastor expressed his views of the

death       penalty     either    generally          or   as     applied    to   this    case.

Neither      do   the    affidavits          support      the    claim   that    the    pastor

attempted to persuade the juror to vote for or against the death

penalty,       suggested         that    the     Bible          supported    a   particular

sentence in this case, or exposed the juror to any extraneous

information        relevant        to    the     juror’s          deliberative     process.

Rather, the substantive allegation in the affidavit regarding

the juror’s communication with her pastor is that the pastor


       8
       I note that the relevant cross-reference should be to the
allegations contained in the affidavits because at times Barnes’
briefs on appeal allege a much broader third-party communication
than can be reasonably inferred from the contents of the
affidavits or his § 2254 petition. At times the majority makes
this same error.
      For this reason, too, the majority is mistaken in opining
that the dissent is “focus[ing] not on what is alleged by
Barnes, but rather on what is missing from his allegations.”
Maj. Op. at 45. As detailed above, Barnes’ affidavits simply do
not allege what either Barnes or the majority now claim that
they do, and that point is made plain by looking to the actual
allegations in those affidavits.     What is missing from the
affidavits simply highlights the dichotomy between what they do
contain and other types of allegations that might bring the
claim within Remmer’s scope.



                                               75
provided the juror with a Bible verse that “contradicted the

passage    relied     upon    by    the    defense       attorney,”      which     had

“suggested that if jurors returned a death sentence, they, the

jurors would one day face judgment for their actions.”                           (J.A.

1892.) 9

     Numerous      times     throughout        his   §   2254   petition     Barnes

acknowledges that it is this issue—not the jury’s choice of the

appropriate sentence—which was the subject of the third-party

contact.     E.g., J.A. 1627 (“[A]n attorney for one of the co-

defendants told the jury that sentencing a defendant to death

would    violate    God’s    law   and,   perhaps,       subject   the   jurors    to


     9
        The rest of Barnes’ affidavits merely allege that the
juror talked to her pastor (without alleging anything about what
the conversation was about) or that jurors read from the Bible
during jury deliberations. (J.A. 1892-1903; see also Dist. Ct.
Op. at J.A. 2140 n.10.)
     With respect to the former, the state court was not obliged
to conclude that mere contact with the pastor—absent some
attendant factual allegation that it involved communication
“about the matter pending before the jury”—warranted either a
presumption of prejudice or an evidentiary hearing. Indeed, the
majority recognizes as much.         But we arrive at different
conclusions based on our different views of how to approach the
state courts’ interpretation of Barnes’ evidence in light of
Remmer.
     With respect to the jurors reading from the Bible, these
allegations are not before the Court as they are not part of the
certificate of appealability. To the extent that Barnes alleges
further    prejudice    arising   from    the   juror’s  subsequent
conversations    during    deliberations,   that   would  be   mere
surplussage as improper third-party contact with even one juror
would be sufficient to trigger Remmer’s presumption, if that
contact had otherwise fallen within Remmer’s scope.



                                          76
judgment one day.       In response to this argument, one of the

jurors . . . telephon[ed] her pastor and [sought] his advice

about this argument.       He referred her to a biblical passage that

he claimed refuted the argument.” (emphasis added)); 1629 (“[A]

lawyer argued the jurors might themselves be judged by God if

they returned a sentence of death. . . . In response to this

argument, [a juror] contacted her pastor . . . and discussed it.

[The pastor] gave her a biblical passage that he felt responded

to the argument.” (emphasis added)); 1631 (“[A] sitting juror .

. . call[ed] her pastor during the sentencing deliberations and

asked his advice about the biblical correctness of a defense

closing argument.      The pastor referred her to a passage [he]

claimed refuted the argument.” (emphasis added)).                 While Barnes

also    speculates   and    theorizes    as    to   how   the     conversation

impacted the deliberative process, he reaches far beyond the

scope of the evidence before the state MAR court at the time it

reviewed his claim in so doing.          E.g., J.A. 1633-34 (asserting,

among other things, that the pastor provided his view on the

biblical support for the death penalty and gave the juror the

“green light” to vote for death).

       The   North   Carolina   state    MAR    court     could     reasonably

conclude that the type of communication at issue here did not

constitute contact “about the matter pending before the jury”

because it was not directed to the choice of sentence, life in

                                    77
prison     or     death,      that    the     jury       was    ultimately        charged     to

determine.         And     Barnes’     allegations             can   fairly      be    read    as

asserting       that    the    juror    and    her       pastor      conversed        about   the

religious implications of serving on a jury, or even serving on

a jury in a capital case, but not about the appropriateness of

any specific sentencing choice that the jury was charged to make

regarding       Barnes.         Therefore,           a    fair-minded         jurist      could

conclude    that       this    type    of    communication           was   not    “about      the

matter pending before the jury” under Remmer. 10

     In a similar vein, it would be objectively reasonable to

view the “matter pending before the jury” as the state trial

court’s     charge       to     the     jurors           to     determine     whether         the

appropriate sentence for Barnes under North Carolina law was

life imprisonment or the death penalty.                              At no time did the

state     trial    court      charge        jurors       with    deciding        the    eternal

consequences to their soul that they could face as a result of

     10
        The majority opinion posits that because the trial court
did not instruct the jurors to disregard the closing argument,
it was “squarely presented for the jury’s consideration as part
of their ultimate sentencing decision.”   Maj. Op. 44.   Closing
argument is not evidence, however.         And while the jury
instructions are not part of the joint appendix before this
Court, the sentencing trial proceeded in accordance with the
then-applicable provisions of N.C. Gen. Stat. § 15A-2000, which
delineates specific criteria—based on the evidence presented to
the jury—that the jurors are to use in deciding the appropriate
sentence. See North Carolina v. Barnes, 481 S.E.2d 44, 51 (N.C.
1997) (describing Barnes’ sentencing as proceeding “pursuant to”
N.C. Gen. Stat. § 15A-2000).



                                              78
following the court’s instructions in making their sentencing

decision.          The    provocative       closing       argument       of    Barnes’    co-

defendant did not alter “the matter” actually before the jury as

instructed by the state trial court.                      Moreover, as the district

court noted, the communication Barnes’ affidavits allege to have

occurred “expressed no opinion on the propriety of the death

penalty and simply indicated that a Christian has a duty to

follow       the   laws    of    the     state,      which,   in   the    case    of     North

Carolina, permitted a jury, in its discretion, to recommend that

a convicted murderer like Barnes serve life in prison or be put

to death[.]”        Dist. Ct. Op. at J.A. 2143-44.                  Consequently, fair

minded jurists can disagree as to whether the contact alleged in

this        case   falls        within     Remmer’s       scope     of        contacts    and

communication        “about      a     matter     pending     before     the    jury.”     As

such, I do not believe that Barnes can point to Remmer’s own

parameters to satisfy his burden under AEDPA. 11


       11
        Notably, this Court’s precedent would also permit such a
reading of Remmer’s “matter pending before the jury” language.
In each instance where we have invoked the Remmer presumption
following   third-party  communication  with   a  juror,  jurors
encountered third parties who expressed their view of a party’s
culpability or appropriate sentence. E.g., Fullwood v. Lee, 290
F.3d 663, 676-84 (4th Cir. 2002) (remanding for an evidentiary
hearing in a § 2254(d)(1) case where the petitioner proffered
evidence that a juror’s “strongly pro-death penalty” husband had
repeatedly attempted to influence his wife to convict the
petitioner and sentence him to death); United States v. Cheek,
94 F.3d 136, 140-44 (4th Cir. 1996) (reversing and remanding for
a new trial based on the Remmer presumption based on juror-third
(Continued)
                                                79
    The other Supreme Court decisions discussed above do not

alter the conclusion that the state courts reasonably applied

Remmer.     As   noted,    neither     Parker   nor   Remmer       specifically

expounded on the Remmer presumption even though they involved

juror partiality claims.           Parker, like Remmer, entailed third-

party   communication     urging    that   jurors   cast   their    vote   in   a

particular manner.      See Parker, 385 U.S. at 363-64.              Turner is

also readily distinguishable: even though the defendant did not

allege that the two witness-deputies specifically spoke about



party contact the Court characterized as the juror’s correct
perception that the third party was attempting to bribe him);
Stockton, 852 F.2d at 745-46 (holding that a third party’s
statement to jurors that he hoped “[they] fr[ied] the son-of-a-
bitch” “bore on the exact issue – whether to impose the death
penalty – that the jurors were deliberating at that time”);
Stephens v. South Atlantic Canners, Inc., 848 F.2d 484, 487-89
(4th Cir. 1988) (invoking Remmer’s presumption where the jury
was exposed to statements from an individual who had been
“inadvertently placed on [the] jury panel” during the first day
of trial, “that he knew from his own experience that the
plaintiff’s testimony was correct and that he would vote to
return a verdict against the defendants”); Haley v. Blue Ridge
Transfer Co., 802 F.2d 1532, 1534-38 (4th Cir. 1986) (invoking
Remmer’s presumption where the jury was exposed to statements
from a nonjuror who had inadvertently sat on the jury during the
first day of trial that he would “‘be against the company’
regardless of the evidence” given his personal familiarity with
trucking companies). See also Untied States v. Basham, 561 F.3d
302 (4th Cir. 2009) (affirming district court’s conclusion that
the Government had rebutted the Remmer presumption of prejudice
where juror was alleged to have telephoned multiple media
outlets   to   provide   information   on   the   penalty   phase
deliberations). While these cases do not mean that Remmer could
not be read more broadly, they equally support the view that
Remmer could also reasonably be limited to such circumstances.



                                      80
the   case      with   the   jurors     during   their   close   interactions

facilitating the jury’s sequestration, the Court’s concern arose

from these deputies being key prosecution witnesses in the case.

Interaction of this duration, proximity, and intimacy between

trial witnesses and jurors tainted the proceedings in a way that

a single conversation with a non-witness would not inherently

involve.     See Turner, 379 U.S. at 474 (“It would have undermined

the basic guarantees of trial by jury to permit this kind of an

association between the jurors and two key prosecution witnesses

who were not deputy sheriffs.             But the role that [they] played

as deputies made the association even more prejudicial. . . .

Turner’s fate depended upon how much confidence the jury placed

in these two witnesses.”).            Indeed, Turner did not rely directly

on Remmer.       For these reasons, Turner does not govern the state

courts’ adjudication of Barnes’ claim.

      Lastly, Smith—the only of these cases directly relying on

Remmer—also involved an entirely different potential influence

on a juror’s decision making than that at issue here.                      The

petitioner in Smith alleged that a juror was implicitly biased

because    he    had   submitted   an    employment   application   with   the

prosecutor’s office during the trial.              Relevant to this case,

Smith reiterated that the due process concern was in maintaining

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

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

                                        81
prejudicial       occurrences       and    to     determine     the   effect       of     such

occurrences when they happen.”                  455 U.S. at 217.            Because Smith

involved a juror’s implied, internal bias rather than prejudice

arising from specific third-party contact, it did not refine

Remmer’s guidance regarding what type of communication is “about

the     matter        pending     before   the      jury”     or    when     the       Remmer

presumption is invoked as a result of such contact.

      In short, none of these cases alters the basic proposition

contained        in     Remmer     regarding       what     sort     of     communication

comprises    “the        matter    pending      before    the      jury.”        For    these

reasons, I conclude that the North Carolina state courts could

reasonably conclude that the communication alleged here was not

“about    the     matter        pending    before     the     jury”       such     that    it

triggered Remmer’s presumption of prejudice.                          And because the

state     courts        could      reasonably       conclude        that     the       Remmer

presumption did not apply to Barnes’ claims, they did not err in

denying him an evidentiary hearing.



                                             E.

      I believe the majority’s analysis with respect to Barnes’

evidentiary hearing claim suffers from other analytical errors

as well.     The majority concludes that the state courts “greatly

distorted Barnes’ burden, requiring” him to “present evidence

that a juror was actually biased and that Barnes was therefore

                                             82
actually prejudiced by the unauthorized communication.”                       Maj.

Op. at 41.         This conclusion misses the point underlying the

state courts’ denial of Barnes’ claims in several ways.

     First, the state MAR court did not mention prejudice in its

brief analysis of this issue.             Instead, it concluded that the

issue was procedurally barred and lacked merit because Barnes’

new evidence “add[ed] nothing to the issue as it was presented

during [his] original appeal, and the allegations are subject to

the same analysis inherent in that decision.”               (J.A. 1883.)      The

state     MAR   court   did   not   require   more   of   Barnes    than   Remmer

demands, nor did it distort the appropriate analysis.

     To the extent it adopted the North Carolina State Court’s

view, that court’s statements regarding the lack of prejudice

flowed directly from its view of the nature of the communication

alleged to have occurred.             See J.A. 1854-55; 1882-83. 12           That

inquiry is properly part of Barnes’ initial burden of submitting

sufficient      support   for   his   allegations    so   as   to   trigger    the


     12
        The North Carolina Supreme Court held that “[t]he trial
court was faced with the mere unsubstantiated allegation that a
juror called a minister to ask a question about the death
penalty.     Nothing in this assertion involved ‘extraneous
information’ as contemplated in our Rule 606(b) or dealt with
the fairness or impartiality of the juror. There is no evidence
that the content of any such possible discussion prejudiced
defendants or that the juror gained access to improper or
prejudicial matters and considered them with regard to this
case.” (J.A. 1854-55.)



                                        83
protections discussed in Remmer.                It was not enough for Barnes

to allege “contact between a juror and her pastor,” Barnes also

needed to present a credible allegation that this contact was

“about a matter pending before the jury.”                     Denying the Remmer

presumption of prejudice or an evidentiary hearing based on the

conclusion    that    the    communication        alleged   did      not   call   into

question the integrity of the verdict, i.e., did not concern the

“matter pending before the jury,” fully complies with Remmer.

      To that end, this Court has previously recognized that it

is the petitioner’s initial burden to show prejudicial contact

in   considering     whether     Remmer’s       presumption     of   prejudice     has

been triggered.      See Blauvelt, 638 F.3d at 295 (holding that the

Remmer presumption did not apply where the communication was

innocuous and the defendant “ha[d] failed to present evidence

that the communication was prejudicial”); Wolfe, 565 F.3d at 162

(holding that “the state court’s conclusion that Wolfe failed to

show a prejudicial influence on the jury’s deliberations was not

objectively unreasonable”).               The North Carolina state courts

thus properly analyzed Barnes’ allegations for their potentially

prejudicial    nature       in   order   to     determine      whether     they   were

sufficient to trigger Remmer.             Contrast supra Maj. Op. at 41-42

(criticizing the state MAR Court for “demand[ing] proof of a

Sixth   Amendment    violation      –    that    is,   proof    of    juror   bias   –

before Barnes was entitled to any relief”).

                                         84
       Even more fundamentally, though, under AEDPA, we are not

constrained by the state courts’ rationale in assessing whether

its holding should nonetheless be upheld.                            Indeed, the state

courts’ decision need not provide any statement of reasons to

nonetheless create a presumption that a claim was “adjudicated

on     the     merits”   and     thus    subject          to     §     2254(d)    review.

Harrington, 131 S. Ct. at 784-85.                       Federal courts review the

“state       court’s   determination     that       a    claim       lacks   merit,”    not

solely the rationale it provides for that determination.                                See

id. at 786; see also Wolfe, 565 F.3d at 162 (observing that when

a state court adjudicates a claim on the merits, federal courts

must     apply    AEDPA’s      deferential      standard         of     review   to     the

decision,      even    when   the   court     does      not    set     forth   the     legal

principles,       precedents,       or      rationale          for     its     decision);

Robinson, 438 F.3d at 358 (“In assessing the reasonableness of

the state court’s application of federal law, therefore, the

federal courts are to review the result that the state court

reached, not whether its decision was well reasoned.” (internal

quotation marks and alterations omitted)).

       In order for Barnes to prevail, it is not enough for the

majority to conclude that the state courts’ analysis erred in

considering       Barnes’     burden     as    to       prejudice.           Rather,    the

majority needed to consider whether any reading of the record

and Remmer could support the decision to deny a presumption of

                                          85
prejudice and evidentiary hearing, even if the state courts’

stated rationale was inadequate or flawed.                     See Harrington, 131

S. Ct. at 786.        AEDPA demands no less.



                                            II.

      For     the     reasons        set    forth    above,     I      conclude     that

“fairminded         jurists     could       disagree”     as      to     whether     the

communication Barnes alleges to have occurred constituted juror

contact with a third party “about a matter pending before the

jury.”      Neither Remmer nor any subsequent Supreme Court case has

explored      the     applicability         of     the   Remmer      presumption      to

allegations that a juror’s conversation with a third party did

not directly bear upon how the juror would vote.                            Given that

Remmer expressed only a general principle, and the Supreme Court

has   recognized      that    “[t]he       more    general    the   rule,    the   more

leeway      courts     have     in     reaching      outcomes       in   case-by-case

determinations,” Harrington, 131 S. Ct. at 786, I believe that

AEDPA’s standard of review settles the Court’s inquiry in this

case.

      If this case was before the Court on a direct appeal, a

different analysis would be required to determine whether Barnes

could be entitled to any relief under Remmer.                       But that is not

the posture of the case before the Court, and our review under

AEDPA    is   only    whether    the       North   Carolina    state     courts    could

                                             86
reasonably   conclude    that   Remmer    did    not    require   either    a

presumption of prejudice or an evidentiary hearing.               Given the

ambiguities in interpreting what constitutes a “matter pending

before the jury” and a reasonable basis for distinguishing the

applicable Supreme Court precedent, we are constrained by AEDPA.

See Mitchell, 540 U.S. at 18; Robinson, 438 F.3d at 355 (“The

state   court’s   application   of   clearly    established   federal      law

must be ‘objectively unreasonable,’ and ‘a federal habeas court

may not issue the writ simply because that court concludes in

its independent judgment that the relevant state-court decision

applied    clearly    established     federal     law     erroneously      or

incorrectly.’” (quoting Williams, 529 U.S. at 411)).

     Because I would hold that the North Carolina state courts

did not unreasonably apply Remmer by concluding that the contact

alleged in Barnes’ affidavits did not trigger a presumption of

prejudice, I would affirm the district court’s denial of Barnes’

§ 2254 petition.     Accordingly, I respectfully dissent.




                                     87
