                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-6


JASON WAYNE HURST,

                Petitioner - Appellant,

           v.

CARLTON B. 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. (1:10-cv-00725-TDS-LPA)


Argued:   January 29, 2014                Decided:   July 2, 2014


Before TRAXLER, Chief Judge, and NIEMEYER and SHEDD, Circuit
Judges.


Reversed and remanded by published opinion. Chief Judge Traxler
wrote the opinion, in which Judge Niemeyer and Judge Shedd
joined.   Judge Shedd wrote a separate concurring opinion, in
which Judge Niemeyer joined.


ARGUED: Robert Hood Hale, Jr., ROBERT H. HALE, JR. & ASSOCIATES,
Raleigh, North Carolina, for Appellant.      Mary Carla Hollis,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellee.   ON BRIEF: Roy Cooper, Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellee.
TRAXLER, Chief Judge:

      Petitioner Jason Wayne Hurst, a North Carolina death row

inmate, appeals the district court’s denial of his petition for

a writ of habeas corpus under 28 U.S.C. § 2254, alleging that

his   Sixth     Amendment      rights     to    an    impartial    jury     and    to    be

confronted with the witnesses against him were violated by an

extraneous communication between a juror and her father during

the   penalty     phase       of   his   capital       murder     trial.      For       the

following reasons, we reverse the district court’s judgment and

remand    for    an   evidentiary        hearing      to   determine       whether      the

extraneous communication had a substantial and injurious effect

or influence on the jury’s verdict.

                                           I.

                                           A.

      The     facts     underlying        this       capital      murder     are     well

documented      in    the     state      court       decision    affirming        Hurst’s

conviction and sentence on direct appeal.                       See State v. Hurst,

624 S.E.2d 309 (N.C. 2006).

      On June 9, 2002, Daniel Branch told his wife that he was

going to Asheboro, North Carolina, to trade guns with Hurst,

with whom he was acquainted.               Branch loaded several guns in his

vehicle and left home in the late morning.                        When he failed to

return,     Branch’s      wife     contacted         authorities.          During       the

investigation,        North     Carolina       authorities      were   advised       that

                                           2
Hurst had been seen in West Virginia driving a vehicle that

matched    the    information       they    had       regarding      Branch’s         vehicle.

Hurst was located and apprehended, and he confessed to killing

Branch with a shotgun and stealing his car.                              Branch’s body was

found in the field where Hurst murdered him.

     Hurst was convicted by the jury of first-degree murder and,

following    the    penalty       phase,    sentenced         to    death.           The   North

Carolina Supreme Court affirmed, see id., and the United States

Supreme    Court    denied      certiorari        review,          see    Hurst      v.    North

Carolina, 549 U.S. 875 (2006).

     On    June    25,    2007,    Hurst      filed     a    Motion       for   Appropriate

Relief    (“MAR”)    in    state      court     seeking,        among       other      things,

postconviction      relief      from    his     death       sentence       based      upon   an

alleged    violation       of   his    Sixth      Amendment         right       to    have    an

impartial jury and to confront his accusers during the penalty

phase of his trial.             Hurst based his claim on an affidavit of

Juror    Christina       Foster,    which       had     been    provided        to     Hurst’s

postconviction investigator, Adam Pfeifer, on April 21, 2007.

Pertinent    to     the    issue      before      us,       Juror    Foster       stated     as

follows:

     7. During the trial, the jurors prayed together. We
     did this throughout the time from when we were
     selected. The prayer was led by either the foreman or
     another older male juror. We prayed for our families
     and for what we had to go through.

     . . . .

                                            3
     9. During the trial, I often had lunch with my father
     who   worked   near   the   courthouse.      Prior   to
     deliberations, I asked my father where I could look in
     the Bible for help and guidance in making my decision
     for between life and death. After the jury had found
     Mr. Hurst guilty but before we decided his sentence, I
     opened my Bible at home because I wanted to read
     something to help me with my decision. My father had
     given me the section in the Bible where I could find
     “an eye for an eye.”    That night after reading that
     section in the Bible, it helped me sleep better.     It
     didn’t make the decision any easier.      The next day
     during deliberations, I voted for the death penalty.

J.A. 441.       Hurst argued that when Juror Foster’s father gave her

the “eye for an eye” citation, he implied that her decision

should be death, entitling Hurst to a new capital sentencing

hearing.        In the alternative, Hurst requested an evidentiary

hearing    to    resolve   any   factual    disputes   pertaining    to   the

extraneous communication.

     On August 2, 2007, the state filed a response to the MAR,

as well as a motion to dismiss.            The state argued: (1) that the

“eye for an eye” passage given to Juror Foster by her father did

not constitute extraneous, prejudicial information sufficient to

impeach the jury’s verdict; (2) that the father’s mere act of

providing the passage to his daughter at her request likewise

did not rise to the level of an extraneous prejudicial contact

or   communication     about     the   case;   and   (3)   that   Hurst   had

otherwise failed to present any evidence that Juror Foster’s

father knew what case she was sitting on or that he deliberately

attempted to influence her vote.

                                       4
       The state court scheduled a hearing for October 19, 2007,

to rule upon the state’s motion to dismiss.                          On the morning of

the hearing, Hurst filed a motion seeking leave to depose Juror

Foster, Juror Foster’s father, and Juror Foster’s grandmother.

In   support    of     the    motion,    Hurst         presented    an    affidavit   from

Investigator Pfeifer, dated October 18, 2007.                        In the affidavit,

Investigator Pfeifer confirmed that he interviewed Juror Foster

on April 21, 2007, at which time “she agreed to provide [him]

with [the] affidavit which tracked [their] discussion.”                               J.A.

457.       Investigator Pfeifer also stated that he had interviewed

Juror Foster’s father on October 9, 2007, who “confirmed that he

had a conversation with his daughter about an ‘eye for an eye’

section of the Bible during his daughter’s deliberations in the

Hurst      trial,”    and     added    that       he    had    obtained     the   Biblical

citation      from     his     mother    in       South       Carolina.       J.A.    458.

Investigator         Pfeiffer’s       efforts      to    interview       Juror    Foster’s

grandmother, however, had been unsuccessful, and Hurst had been

unable to determine exactly which “eye for an eye” verse Juror

Foster’s      father    had    provided       to       his    daughter. 1     Based   upon


       1
       As we have previously noted, the King James Version of the
Bible contains several “eye for an eye” verses.

     The Old Testament contains three such passages: (1)
     “Eye for eye, tooth for tooth, hand for hand, foot for
     foot,” Exodus 21:24; (2) “Breach for breach, eye for
     eye, tooth for tooth: as he hath caused a blemish in a
(Continued)
                                              5
Investigator Pfeiffer’s affidavit, Hurst argued that depositions

or an evidentiary hearing were in order to “significantly assist

in   the   search   for   truth   about   Juror   Foster’s   extrajudicial

conversations with her father.”       J.A. 454.

      On February 4, 2008, the state court made the following

relevant findings and conclusions:

            The  Fourth   Circuit   Court  of  Appeals   has
      determined that the Bible does not constitute an
      improper external influence in a capital case, whether
      read aloud by one juror to the others during
      sentencing deliberations, whether read by a juror in
      the privacy of his home, or whether read to herself by
      a juror during deliberations [citing our holdings in
      Robinson v. Polk, 438 F.3d 350 (4th Cir. 2006); Lynch
      v.   Polk,   204  Fed.  Appx.   167 (4th   Cir.  2006)
      (unpublished); Billings v. Polk, 441 F.3d 238 (4th
      Cir. 2006); and Lenz v. Washington, 444 F.3d 295 (4th
      Cir. 2006)].

           Moreover, defendant presented no evidence that
      juror Foster’s father knew what case juror Foster was
      sitting on, and no evidence that he deliberately
      attempted to influence her vote by directing her to a
      specific passage in the Bible.     Instead, defendant



      man, so shall it be done to him again,” Leviticus
      24:20; (3) “And thine eye shall not pity; but life
      shall go for life, eye for eye, tooth for tooth, hand
      for hand, foot for foot,” Deuteronomy 19:21.

Robinson v. Polk, 438 F.3d 350, 358-59 n.8 (4th Cir. 2006).
However, “in the New Testament Sermon on the Mount, Jesus
said, ‘Ye have heard that it hath been said, An eye for an
eye, and a tooth for a tooth: But I say unto you, that ye
resist not evil: but whosoever shall smite thee on thy
right cheek, turn to him the other also.’ Matthew 5:38-39.”
Id.




                                     6
     presented a motion for depositions of juror Foster,
     her father, and her grandmother.

J.A. 481-82.   The state court denied Hurst’s claim on the merits

and denied his motion for discovery.

                                 B.

    On September 20, 2010, Hurst filed a petition for federal

habeas relief under 28 U.S.C. § 2254, again raising his Sixth

Amendment juror-influence claim.       The state moved for summary

judgment.   In response, Hurst filed a motion to depose the same

three witnesses.   On the recommendation of the magistrate judge,

the district court denied the motion for depositions, declined

Hurst’s request for discovery or an evidentiary hearing, and

dismissed the habeas petition.       The district court concluded as

follows:

          The United States Supreme Court has not held that
     the reading of a Bible verse constitutes “a matter
     before the jury” or raises a presumption of prejudice
     as an improper extrinsic influence.   In light of the
     Fourth Circuit cases holding that, in the context of
     habeas   review,   a    juror’s  consultation   and/or
     recitation of Bible verses does not trigger a
     presumption of prejudice (indeed, does not even
     constitute an extrinsic influence), it cannot be said
     that the state MAR court’s determination -- that the
     father’s reference to an “eye for an eye” Biblical
     passage in this case did not give rise to a
     presumption of prejudice under Remmer -- was an
     unreasonable application of, or contrary to, federal
     law as determined by the United States Supreme Court.
     Accordingly, [the] [c]laim . . . fails.

J.A. 361 (emphasis in original) (citing Remmer v. United States,

347 U.S. 227 (1954)).     However, the district court granted a

                                 7
certificate      of    appealability      with      respect        to     the   issue    of

whether    Juror      Foster’s      extraneous       contact        with     her    father

violated   Hurst’s       Sixth   Amendment        rights.          For    the   following

reasons,   we    reverse      the     judgment     of     the     district      court   and

remand for an evidentiary hearing.

                                         II.

                                          A.

      Under 28 U.S.C. § 2254(d), as revised by AEDPA, a federal

court may grant habeas relief to a state prisoner only if the

state court’s adjudication of the merits of the constitutional

claim at issue was (1) “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), or (2) “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).                     A state court’s decision

is   “contrary     to”    clearly     established         Supreme       Court   precedent

only if it is “substantially different” from that precedent.

Williams   (Terry)       v.   Taylor,    529      U.S.    362,     405    (2000).       The

decision is “an unreasonable application of” clearly established

Supreme     Court        precedent       only       if      it      is      “objectively

unreasonable.”        Id. at 409.

      As   the     United     States      Supreme         Court     has    increasingly

cautioned, AEDPA significantly constrains our review of state

                                             8
court decisions on federal constitutional claims.                  We are not at

liberty to substitute our judgment for that of the state court

on matters of federal constitutional law, even if we believe the

state court decision was incorrect.                 “The question under AEDPA

is   not   whether   a   federal   court        believes    the   state    court’s

determination was incorrect but whether that determination was

unreasonable – a substantially higher threshold.”                      Schriro v.

Landrigan, 550 U.S. 465, 473 (2007) (emphasis added); see also

Harrington v. Richter, 131 S. Ct. 770, 785 (2011).                      The state

court decision may be deemed unreasonable “only if it is so

erroneous that ‘there is no possibility fairminded jurists could

disagree that the state court’s decision conflicts with th[e]

[Supreme] Court’s precedents.’”               Nevada v. Jackson, 133 S. Ct.

1990, 1992 (2013) (per curiam) (quoting Harrington, 131 S. Ct.

at 786).

                                         B.

      The Sixth and Fourteenth Amendments to the United States

Constitution “guarantee[] to the criminally accused a fair trial

by a panel of impartial, ‘indifferent’ jurors.”                   Irvin v. Dowd,

366 U.S. 717, 722 (1961).           They also protect “[t]he right of

confrontation” which “requires that the ‘jury’s verdict must be

based upon the evidence developed at the trial.’”                      Robinson v.

Polk,   438   F.3d   350,   359   (4th       Cir.   2006)   (quoting    Turner   v.

Louisiana, 379 U.S. 466, 472 (1965)).                At its core, these Sixth

                                         9
Amendment    rights    are   designed    to   ensure    “‘that    the    evidence

developed against a defendant shall come from the witness stand

in a public courtroom where there is full judicial protection of

the defendant’s right[s].’”        Id. (quoting         Turner, 379 U.S. at

472) (alteration in original).

     The privacy and protection concerns that inevitably arise

when one seeks to impeach a jury’s verdict, however, are also

well established.      “Despite the[] venerable protections afforded

to criminal defendants, the Sixth Amendment does not require

that all evidence introduced by the defendant tending to impeach

the jury’s verdict be considered by the courts.”                 Id.    “In fact,

the common-law rule generally ‘prohibited the admission of juror

testimony to impeach a jury verdict.’”               Id. (quoting Tanner v.

United States, 483 U.S. 107, 117 (1987)).              This common-law rule,

now codified in Federal Rule of Evidence 606(b), prohibits juror

testimony to impeach the verdict, subject to three exceptions,

two of which are relevant here:               “A juror may testify about

whether . . . extraneous prejudicial information was improperly

brought     to   the   jury’s   attention”      or     whether    “an     outside

influence was improperly brought to bear on any juror.”                  Fed. R.

Evid. 606(b)(2)(A)&(2)(B); 2 see also Mattox v. United States, 146


     2
       A juror may also testify concerning whether “a mistake was
made in entering the verdict on the verdict form.”        Fed. R.
Evid. 606(b)(2)(C).


                                        10
U.S.   140,   149    (1892)   (“[T]he        evidence    of   jurors,       as    to   the

motives and influences which affected their deliberations, is

inadmissible either to impeach or to support the verdict.                          But a

juryman may testify to any facts bearing upon the question of

the existence of any extraneous influence, although not as to

how far that influence operated upon his mind.”).

       In   Mattox,    the    Supreme        Court    applied    this       common-law

exception     and    remanded    for    a     new    trial    where     a    convicted

defendant     unsuccessfully      attempted      to     introduce     affidavits       to

the trial court setting forth prejudicial, extraneous statements

made by a bailiff to the jury about the defendant, as well as a

damaging newspaper article about the case that had been read to

the jury.     See id. at 143-44.             The Supreme Court held that such

“[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.”                   Id. at 150.

       Thereafter,    in     Remmer     v.    United     States,      347    U.S.      227

(1954), the Supreme Court considered an alleged bribery attempt

of a juror during trial, and the FBI’s investigation of the

attempt, all of which was handled by the district court in an ex

parte proceeding prior to the verdict being delivered.                              After

learning of the incident through post-trial press accounts, the

defendant moved for a new trial and requested “a hearing to

                                         11
determine         the    circumstances   surrounding          the   incident    and    its

effect on the jury.”             Id. at 228.            Building upon its earlier

precedent in Mattox, the Supreme Court held that:

             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 presumptively
        prejudicial . . . .         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. at 229 (emphasis added).                     Unlike in Mattox, neither the

Court       nor    the   defendant   knew   from     the      existing   record      “what

actually          transpired,   or   whether      the   incidents     that     may    have

occurred were harmful or harmless.”                     Id.     The Court held that

“[t]he trial court should not decide and take final action ex

parte on information such as was received in this case, but

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 229-

30. 3


        3
       Interpreting and applying these Supreme Court cases, this
circuit has formulated a burden-shifting approach for analyzing
a convicted defendant’s allegations that his Sixth Amendment
rights were violated by an extraneous communication or contact
with a juror during the pendency of a trial. “First, the party
attacking the verdict must introduce competent evidence that
there was an extrajudicial communication or contact, and that it
was “‘more than innocuous interventions.’” Howard v. Moore, 131
F.3d 399, 422 (4th Cir. 1997) (en banc) (quoting United States
(Continued)
                                            12
                                       III.

       Presented with evidence of the communication between Juror

Foster and her father about the Bible verse, the state court

considered         whether     extraneous       prejudicial     information      or

evidence had been brought to Juror Foster’s attention (i.e., the

Bible verse itself), as well as whether an outside influence was

improperly brought to bear upon Juror Foster.                  In doing so, the

state court relied upon several Sixth Amendment “Bible-verse”

cases from our circuit, most notably our decision in Robinson.

       In Robinson, a North Carolina death row inmate claimed that

his Sixth Amendment right to an impartial jury had been violated

during the sentencing phase of his trial when one of the jurors

asked the bailiff for a Bible, received it, and then read “eye

for    an   eye”    passages    to   the    other   jurors    in   an   effort   to

persuade them to “change their position from one favoring a life

sentence to one favoring a death sentence.”                   Robinson, 438 F.3d

at    358   (internal    quotation    marks     omitted).       The   state   court

denied the claim without an evidentiary hearing.




v. Cheek, 94 F.3d 136, 141 (4th Cir. 1996)).           “If this
requirement is satisfied, the Remmer I presumption automatically
arises.” Id. Once this initial showing is made and the Remmer
presumption of prejudice arises, “the burden shifts to the
prevailing party [at trial] to demonstrate that there exists no
reasonable possibility that the jury’s verdict was influenced by
[the] improper communication.”    Id. (internal quotation marks
omitted).


                                           13
     After    considering      Remmer    and     the     related      Supreme   Court

precedents,     we     concluded   that      the    North       Carolina     court’s

decision     denying    petitioner      relief     was    not    an    unreasonable

application of clearly established federal law.                  We held that:

     it would have been reasonable for the MAR court to
     conclude that the Bible had no bearing on any fact
     relevant   to  sentencing,   and   was  therefore   not
     tantamount to “evidence” that was used against him at
     sentencing. . . . In the end, the jury concluded that
     the   balance  of   the   aggravating  and   mitigating
     circumstances warranted imposing the death penalty. .
     . .    [N]o Biblical passage - including the ones we
     assume were read - had any evidentiary relevance to
     the jury’s determination of the existence of these
     aggravating and mitigating circumstances.

Id. at 363.    We additionally held that:

     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,
     [about the matter pending before the jury,] and that
     the common-law rule against allowing juror testimony
     applied.   See Remmer, 347 U.S. at 229.  Unlike these
     occurrences, which impose 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. (emphasis        added).   Although      a   third     party,      the   bailiff,

provided the Bible to the juror at the latter’s request, we

found that distinction unavailing as well:

     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

                                        14
        was nothing more than an innocuous intervention into
        the jury’s deliberations. . . .      The MAR court
        reasonably could have concluded that the bailiff’s
        actions in fulfilling the juror’s request did not,
        without more, turn the Bible into an external
        influence.

Id. at 366 (citation omitted). 4

       Both        the     state    MAR    court,      and       the    Respondent         in   this

appeal, rely upon our decision in Robinson as support for the

determination that Hurst failed to make the requisite showing to

benefit        from      the     Remmer    presumption            of    prejudice.           As   in

Robinson,        the       Respondent     argues,      the       Bible     verse      that      Juror

Foster’s       father        gave    to   her    did       not     constitute         “extraneous

prejudicial         information,”          and   his       mere    act     of   providing         the

verse      did     not      rise    to    the    level      of     an    improper,         external

influence.

       Recently, however, in Barnes v. Joyner, 2014 WL 1759085

(4th Cir. 2014), we held that “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        allegation        of    communications            or   contact

       4
       As the state MAR court correctly observed, this court has
held firm to the view that Bible-verse readings, whether
occurring privately or in the jury room, do not alone constitute
extraneous prejudicial information or an outside influence
improperly brought to bear upon the jury.          See Lenz v.
Washington, 444 F.3d 295, 300-01 (4th Cir. 2006);    Billings v.
Polk, 441 F.3d 238, 248-49 (4th Cir. 2006); Lynch v. Polk, 204
Fed. Appx. 167, 175 (4th Cir. 2006); see also Burch v. Corcoran,
273 F.3d 577, 591 (4th Cir. 2001).


                                                 15
between a third party and a juror concerning the matter pending

before the jury.”         Id. at *10; see also id. at *12 (“[I]t 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.”).           Once the defendant presents such a “genuine

allegation,” the “presumption of prejudice must be applied, and

. . . a hearing must be held.”            Id. at *14 (emphasis added).

       In Barnes, defense counsel, in closing arguments, suggested

to the jury that “if [the] jurors voted for the death penalty,

they   would    one     day    face    God’s    judgment    for    killing   the[]

defendants.”       Id. at *4.      Barnes presented evidence, both to the

trial court and the state MAR court, that one of the jurors

contacted    her      pastor    during   the    sentencing    deliberations     to

discuss the defense counsel’s argument.                    Barnes also alleged

that during this conversation the pastor directed the juror to a

biblical passage that contradicted the passage defense counsel

had relied upon.         The juror, in turn, shared the passage with

her fellow jurors during deliberations.                See id.     The question,

therefore,      was     whether       Barnes    had    presented     a     credible

allegation that the communication or contact between the juror

and her pastor “concerned the matter pending before the jury.”

Id. at *15.

                                         16
       There was no evidence presented that the pastor and the

juror discussed the facts of the specific case, or his views

about the death penalty, or that he attempted to persuade the

juror to vote a particular way.             However, we held that the

juror’s extraneous conversation with her pastor “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.’”        Id. at *17.      We held as follows:

       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 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.

Id. at *16.    “To conclude otherwise,” we held, “would not simply

be     incorrect   or    erroneous;        it      would    be   objectively

unreasonable.”     Id. at *17.        We also distinguished our prior

precedent in Robinson, concluding that:

       the only similarity between the instant case and the
       ‘Bible in the jury room’ line of cases [was] the Bible
       itself.    Unlike in Robinson, where the juror in
       question was simply given a Bible and read from it in
       the jury room, [petitioner] has alleged that [the
       juror] was actually directed to a specific biblical
       passage by [the third party.]        We alluded that
       Robinson might have been a different case if the

                                     17
        bailiff had “instructed the jury to consult the Bible”
        or done “anything other than simply provide the Bible
        upon the juror’s request.”

Id. at *19.

     Our    holding    in     Barnes       dictates    the        same   result   in      this

case.     According to the affidavits presented to the state MAR

court, Juror Foster asked her father where she “could look in

the Bible for help and guidance in making [her] decision for

between life and death.”              J.A. 441.        He, in turn, directed her

to an (as yet) undetermined “eye for an eye” verse, which she

consulted in private the night before returning the verdict.

     The affidavits did not allege that Juror Foster discussed

with her father the facts or evidence that had been presented in

the trial, or the status of the jury’s deliberations.                               Nor was

there    any   evidence       that   Juror        Foster’s    father      expressed       any

opinion    about   the      case     or    attempted    to        influence   her      vote.

Nevertheless, Hurst presented a credible allegation of a private

communication      about       the        matter    pending         before    the      jury,

entitling      Hurst     to    the        presumption        of     prejudice       and    an

evidentiary hearing.           Accordingly, we hold, as we did in Barnes,

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

and to conduct an evidentiary hearing in light of this showing




                                             18
was contrary to or an unreasonable application of the Supreme

Court precedents applicable to juror-influence claims. 5

                                             IV.

       Our conclusion that the state court unreasonably applied

Supreme         Court    precedent,    however,       does    not    end    our    inquiry.

Hurst is not entitled to federal habeas relief unless we are

also convinced that the communication between Juror Foster and

her father “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)); see also Hall v. Zenk, 692 F.3d 793, 805 (7th

Cir. 2012) (noting that the petitioner’s “initial victory is

more theoretical that practical, since he still must establish

that       he    was    prejudiced    by     the   state     courts’       constitutional

error”).

       On       the    present   record,      Hurst    cannot       meet    this    burden.

Therefore, he has requested an opportunity to now develop his

claim in an evidentiary hearing before the district court.                                As

was the case in Barnes, Hurst contends that the state court’s

failure         to    investigate    Juror    Foster’s       communication         with   her


       5
       In accordance with our decision in Robinson, the state
court reasonably determined that the mere existence of the Bible
verse in the hands of Juror Foster and her consideration of it
was not extraneous prejudicial information that violated his
Sixth Amendment rights.


                                              19
father gave the district court “no basis from which to determine

whether    [the     communication]      was      harmless.”           Barnes,       2014    WL

1759085, at *19.           The State, on the other hand, argues that 28

U.S.C.     §     2254(e)(2)      prohibits       us     from       granting       him     that

opportunity in this case because, even if Hurst has met the §

2254(d) requisites, his failure to exercise proper diligence in

developing his claim in state court deprives him of the right to

do so now.       We disagree.

     Section 2254(e)(2) “imposes a limitation on the discretion

of federal habeas courts to take new evidence in an evidentiary

hearing.”         Cullen    v.    Pinholster,         131     S.   Ct.     1388,    1400-01

(2011).        “A district court may not grant an evidentiary hearing

to a habeas petitioner if the petitioner ‘failed to develop the

factual    basis     of    a     claim,’”    in       state    court,       28    U.S.C.    §

2254(e)(2), due to “lack of diligence, or some greater fault,

attributable       to     the    prisoner        or    the     prisoner’s         counsel.”

Williams (Michael) v. Taylor, 529 U.S. 420, 432 (2000).                             “Like §

2254(d)(1), [§ 2254(e)(2)] carries out AEDPA’s goal of promoting

comity,    finality,       and    federalism      by    giving       state       courts    the

first     opportunity       to    review    a     claim,       and    to     correct       any

constitutional violation in the first instance.”                           Cullen, 131 S.

Ct. at 1401 (internal quotation marks and alteration omitted).

Moreover, “[s]ection 2254(e)(2) continues to have force [even]

where § 2254(d)(1) does not bar federal habeas relief.”                             Id.    It

                                            20
“still   restricts   the    discretion      of    federal       habeas    courts    to

consider    new   evidence      when   deciding        claims     that    were     not

adjudicated on the merits in state court,” and “ensure[s] that

federal courts sitting in habeas are not an alternative forum

for trying facts and issues which a prisoner made insufficient

effort to pursue in state proceedings.”                Id. (internal quotation

marks and alteration omitted).

     “[T]he    requirements     that   petitioners           exhaust   their     state

remedies and diligently develop the record in state court are

exacting burdens,” and “new evidence submitted in federal court

that fundamentally alters a claim presented in state court will

render that claim unexhausted.”             Winston v. Pearson, 683 F.3d

489, 497 (4th Cir. 2012) (internal quotation marks omitted).

Moreover, “that a petitioner requested an evidentiary hearing

from the state court, without more, might not always suffice to

satisfy AEDPA’s diligence requirement.”                Id.

     In this case, however, Hurst did not merely seek to engage

in a fishing expedition to uncover evidence of juror misconduct

that he could and should have investigated and presented to the

state MAR court in the first instance.                       Rather, he presented

evidentiary affidavits in support of a specific Sixth Amendment

claim to the state MAR court, sufficient to entitle him to the

Remmer     presumption     of   prejudice        and    a     Remmer     evidentiary

hearing.     He then requested both discovery and an evidentiary

                                       21
hearing       before    the     state        MAR   court       to     explore      the    private

communication      between           Juror    Foster      and       her    father    and,       more

specifically,          the     question        of       whether          their     conversation

prejudiced       the     verdict.              Because          the       state     MAR        court

unreasonably       denied          Hurst’s     motion      for           further    evidentiary

development, Hurst did not “fail[] to develop the factual basis

of    [his]    claim”        under    §   2254(e),        and       we    are    left    with    an

incomplete and inadequate record for review.

       On remand, Hurst will be given the opportunity to develop

the    record     as     it        pertains        to    Juror        Foster’s      extraneous

conversation with her father, but he will not be entitled to the

Remmer    presumption           in     attempting         to        demonstrate         that    the

communication          had     a     substantial         and        injurious       effect       or

influence on the jury’s verdict.                        See Barnes, 2014 WL 1759085,

at *20.       “[T]o be entitled to habeas relief,” Hurst “will need

to affirmatively prove actual prejudice by demonstrating that

the jury’s verdict was tainted by the extraneous communication

between” Juror Foster and her father.                      Id.

                                               V.

       For the foregoing reasons, the judgment of the district

court is reversed and the matter remanded for an evidentiary

hearing on the issue of whether the communication between Juror

Foster and her father about the Bible verse had a substantial



                                               22
and   injurious   effect   or   influence   in   determining   the   jury’s

verdict.

                                                   REVERSED AND REMANDED




                                    23
SHEDD, Circuit Judge, concurring:

       In view of the Supreme Court’s recent admonition in White

v. Woodall, 134 S.Ct. 1697, 1706 (2014) (emphasis in original),

that “[s]ection 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,”

I believe the district court correctly determined that the state

MAR    court     did   not    unreasonably        interpret       Remmer      v.    United

States,    347    U.S.   227,       229   (1954),      in   denying      Hurst     relief.

Thus, if we were writing on a clean slate, I would affirm the

district court’s grant of summary judgment to the state.

       However, I agree with Judge Traxler that, given our recent

sweeping    decision     in    Barnes     v.    Joyner,     --    F.3d      --,    2014   WL

1759085 (4th Cir. 2014), we are constrained to vacate the grant

of    summary    judgment     and    remand     this    case     for   an    evidentiary

hearing.       Although I recognize that Barnes controls the outcome

in this case, I note that our opinion in Barnes “acknowledges

AEDPA’s constraints only in the abstract, while simultaneously

analyzing the case at bar as if it were on direct appeal,”

Barnes, 2014 WL at *21, (Agee, J., dissenting) and in so doing

“disregard[ed] perfectly reasonable interpretations [of Supreme

Court     precedent]         and     hence       contravene[ed]          §        2254(d)’s

deferential standard of review,”                White, 134 S.Ct. at 1704.

                                           24
Notwithstanding these reservations, I concur.




                          25
