UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES CURTIS DARDEN,
Petitioner-Appellant,

v.                                                                       No. 94-6353

TALMADGE L. BARNETT,
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-92-691-HC-H)

Argued: October 30, 1995

Decided: January 8, 1996

Before RUSSELL, WILKINS, and WILLIAMS,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: James Phillip Griffin, Jr., NORTH CAROLINA PRIS-
ONER LEGAL SERVICES, INC., Raleigh, North Carolina, for
Appellant. Rebecca Kendrick Cleveland, Associate Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Michael F. Easley, Attorney
General of North Carolina, Clarence J. DelForge, III, Assistant Attor-
ney General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

James Curtis Darden appeals the decision of the district court deny-
ing his petition for habeas corpus relief pursuant to 28 U.S.C.A.
§ 2254 (West 1994). Because we conclude that Darden's claims lack
merit, we affirm the judgment of the district court.

I.

Darden was convicted of first degree murder in North Carolina and
was sentenced to life imprisonment in 1986. During the guilt phase
of his capital trial, Darden testified on his own behalf, subjecting him-
self to cross-examination concerning a prior incident in his life that
had resulted in an involuntary manslaughter conviction for killing
Thurman Blackmon. After the jury returned a guilty verdict, but prior
to the introduction of evidence in the penalty phase of the trial, Dar-
den moved for a mistrial, asserting that he had just realized that he
knew one of the jurors, Earl Stephens.

The state trial court conducted an evidentiary hearing on the
motion at which Darden testified that Stephens had been Blackmon's
friend and had known that Darden was responsible for Blackmon's
death. According to Darden's testimony, Stephens knew Darden and
had been dating his aunt at the time of Blackmon's death; this aunt
lived near Darden's home, where Blackmon was killed, and was
instrumental in seeking medical assistance for Blackmon at Darden's
request. Although Stephens had denied knowing Darden or his family
during voir dire, Darden sought to examine Stephens concerning his
knowledge of the events surrounding Blackmon's death and possible
bias against Darden.

The state trial court denied Darden's request to examine Stephens
and his motion for a mistrial. It found that although Stephens had

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been Blackmon's friend and had known that Darden was responsible
for Blackmon's death, Stephens had not recognized Darden and, thus,
had answered questions during voir dire truthfully. As for Darden, the
trial court found that he either had failed to recognize Stephens during
voir dire or purposefully had remained silent concerning their
acquaintance hoping that it would operate to his benefit. Based on
these findings, the state trial court denied Darden's request for a mis-
trial, reasoning that there had been no showing that Stephens could
not be fair and impartial or that Darden had suffered prejudice as a
result of the past acquaintance with Stephens.

On direct appeal to the Supreme Court of North Carolina, Darden
first asserted that his constitutional right to an impartial jury was
infringed by Stephens' presence on the jury. Darden claimed that he
had adequately demonstrated that Stephens was actually biased
because, although the juror had denied knowing Darden, Stephens
possessed information about Blackmon's death and had been Black-
mon's friend. Additionally, Darden maintained that even if he had not
adequately demonstrated that Stephens was actually prejudiced, the
circumstances required that the court presume prejudice. Finally, Dar-
den contended that the refusal of the trial court to permit him to
examine Stephens denied Darden his right to due process of law and
that a new trial was required because a remand for a postconviction
hearing would be inadequate to cure the manifestly unjust procedure
from which he had suffered.

The Supreme Court of North Carolina rejected these arguments.
State v. Darden, 372 S.E.2d 539, 540 (N.C. 1988). It ruled that the
record presented to that court supported a conclusion that his request
for a mistrial had been directed only to the sentencing phase of the
trial, not the guilt phase of the trial. Id. And, since Darden had not
been sentenced to death, but in fact had received the lowest sentence
possible--life imprisonment--the court concluded that he could not
have been prejudiced by alleged errors directed toward the sentencing
phase. Id. Accordingly, the Supreme Court of North Carolina
affirmed Darden's conviction and sentence.

Thereafter, Darden brought this § 2254 action claiming that the cir-
cumstances surrounding Stephens' deliberation during the guilt phase
of the trial were such that the juror must be presumed to have been

                    3
biased, depriving Darden of his constitutional right to an impartial jury.1
In addition, Darden asserted that the refusal of the state trial court to
permit him to examine Stephens deprived him of his Fourteenth
Amendment right to due process of law. The district court rejected the
State's argument that Darden had procedurally defaulted these claims
and ruled that the circumstances surrounding Stephens' service on
Darden's jury did not give rise to a presumption of prejudice. The dis-
trict court also concluded that Darden's right to due process was not
violated by the refusal of the state trial court to permit Darden to
examine Stephens. From this decision, Darden appeals.2
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1 Darden named Talmadge L. Barnett as respondent, but for ease of ref-
erence we refer to the respondent as the State.
2 Initially, we note that we cannot accept the State's assertion that
review of Darden's claims is barred because he procedurally defaulted
them. See Coleman v. Thompson, 501 U.S. 722, 729 (1991) (Generally,
a federal habeas court "will not review a question of federal law decided
by a state court if the decision of that court rests on a state law ground
that is independent of the federal question and adequate to support the
judgment."). The State correctly asserts that the district court improperly
relied on reasoning expressly rejected by Coleman to conclude that the
decision of the Supreme Court of North Carolina was not based on an
independent state procedural rule; we find inescapable the conclusion
that the Supreme Court of North Carolina rested its rejection of Darden's
claims on the basis of his failure to properly preserve the error for review
--a state-law determination that is binding on us, see Estelle v. McGuire,
502 U.S. 62, 67-68 (1991).

Nevertheless, the federal question remains whether the independent
ground for decision on which the state court relied is adequate to fore-
close federal habeas review. See Johnson v. Mississippi, 486 U.S. 578,
587 (1988). We determine that it is not. See Ford v. Georgia, 498 U.S.
411, 423-25 (1991); James v. Kentucky, 466 U.S. 341, 348-49 (1984). In
order to constitute an adequate procedural bar, a state procedural rule
must be "firmly established and regularly followed" at the time it is
applied. Ford, 498 U.S. at 423-24 (internal quotation marks omitted).
Darden argued before the state trial court that during the guilt phase of
the trial, Stephens' knowledge of the events surrounding Blackmon's
death may have improperly biased him against Darden; the ruling by the
state trial court denying Darden's request for a mistrial can be read to
have rejected this claim; and Darden properly raised the issue in his
direct appeal to the Supreme Court of North Carolina. We have found no

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II.

The constitutional "right to jury trial guarantees to the criminally
accused a fair trial by a panel of impartial, `indifferent' jurors." Irvin
v. Dowd, 366 U.S. 717, 722 (1961).3 Neither the Supreme Court nor
this court has yet to squarely address whether, under appropriate cir-
cumstances, an implication may arise that a juror was biased against
the defendant. See Smith v. Phillips, 455 U.S. 209, 221-24 (1982)
(O'Connor, J., concurring); Person v. Miller, 854 F.2d 656, 664 (4th
Cir. 1988), cert. denied, 489 U.S. 1011 (1989). And, we need not
decide this question today. To the extent that an implication of bias
may be appropriate, the doctrine is limited "to those extreme situa-
tions where the relationship between a . . . juror and some aspect of
the litigation is such that it is highly unlikely that the average person
could remain impartial in his deliberations under the circumstances."
Person, 854 F.2d at 664 (citing Smith, 455 U.S. at 222 (O'Connor, J.,
concurring) (setting forth examples of the types of drastic factual sce-
narios in which an implication of bias might be proper)). Stated dif-
ferently, an implication of bias might be appropriate only when "the
`potential for substantial emotional involvement, adversely affecting
[the] impartiality'" of the juror, is inherent under the circumstances.
Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) (quoting United
States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977)), cert. denied, 498
U.S. 1091 (1991). The circumstances presented to this court plainly
do not satisfy this criteria.

Darden contends that Stephens' acquaintance with Blackmon,
along with the juror's failure to bring the friendship to the attention
_________________________________________________________________

North Carolina authority "firmly establishing" that Darden was required
to take additional action to preserve the question of Stephens' bias with
respect to the guilt phase of his capital trial, as opposed to the sentencing
phase. Accordingly, we conclude that the independent state-law ground
relied upon by the State is inadequate to prevent habeas review.
3 The Due Process Clause of the Fourteenth Amendment guarantees the
right to a jury trial in all state criminal cases which would come within
the right to a jury trial guaranteed by the Sixth Amendment if the trial
were conducted in federal court. Morgan v. Illinois, 504 U.S. 719, 726
(1992).

                     5
of the court, created an implication that the juror was biased against
Darden. However, Darden chooses to ignore the particulars giving
rise to a competing inference. Although Stephens knew Blackmon,
the juror also was friendly with Darden and his family, having dated
his aunt and socialized with his father. And, while it is true that the
juror failed to bring his acquaintance with Blackmon to the attention
of the court, it is equally true that Stephens failed to apprise the court
of his friendship with Darden and his family. Thus, the circumstances
do not necessarily require an implication of bias against Darden.
Indeed, it seems equally likely that Stephens was favorably disposed
to Darden.4 Consequently, we cannot conclude that these circum-
stances warrant a finding of implied bias.

III.

Darden also asserts that he was deprived of his Fourteenth Amend-
ment right to due process of law when the state trial court refused to
permit him to examine Stephens to attempt to prove actual bias and,
accordingly, that he is entitled to a new trial. We disagree.

The Supreme Court has made clear that

           due process does not require a new trial every time a juror
           has been placed in a potentially compromising situation.
           . . . 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.
_________________________________________________________________
4 Although not germane to our decision, we note that all indications
point to the conclusion that Darden recognized Stephens early in the pro-
ceedings, but failed to bring the relationship to the attention of the court,
believing that given Stephens' failure to acknowledge the relationship,
the failure to do so would work to his benefit. For example, during voir
dire, Stephens candidly acknowledged that his son had been the victim
of a homicide and that the perpetrator of that crime had been prosecuted
by the same solicitor prosecuting Darden. Unless Darden had reason to
believe that Stephens would be favorably disposed toward him, it is
inconceivable that Darden would not have moved to strike Stephens from
the venire.

                     6
Smith, 455 U.S. at 217. A defendant's right to due process is not vio-
lated, and a juror need not be presumed to be biased, merely because
a question concerning a juror's partiality is raised after the verdict has
been rendered. See id. at 215. Instead,"the remedy for allegations of
juror partiality is a hearing in which the defendant has the opportunity
to prove actual bias." Id.

It is undisputed that Darden was provided with an evidentiary hear-
ing in which he had the opportunity to prove that Stephens was actu-
ally biased. But, Darden claims that this hearing was inadequate
because he was not permitted to examine Stephens. We, however,
need not decide whether due process demands that Darden be given
an opportunity to examine Stephens to attempt to prove actual bias.
See generally United States v. Boney, No. 94-3149, 1995 WL 612901,
at *4-6 (D.C. Cir. Oct. 20, 1995) (holding district court abused its dis-
cretion in failing to permit thorough examination of a juror to deter-
mine actual bias).

A post-trial hearing to inquire into a juror's alleged bias is suffi-
cient to satisfy due process. See Smith, 455 U.S. at 215-17. Yet, Dar-
den has expressly and repeatedly declared that he does not seek a
post-trial examination of Stephens. In his direct appeal to the
Supreme Court of North Carolina, Darden argued that a new trial
should be awarded because "[a] remand for postconviction hearing
would not be adequate at this juncture to remove a serious question
of whether defendant has suffered from manifestly unjust proce-
dures." J.A. 254. Further, Darden expressly disavowed a request for
an opportunity to examine Stephens in his brief to this court.5 More-
over, in response to questions during oral argument, counsel for Dar-
den informed the court that throughout the many years since the trial,
no attempt has been made to contact Stephens to obtain the informa-
tion that might have been explored during a hearing. As a post-trial
examination of Stephens is adequate to satisfy due process, and as
Darden has not sought an opportunity to examine the juror post-trial,
_________________________________________________________________
5 Darden claimed that a hearing to permit him to examine Stephens at
this juncture would be unavailing. See Br. of Appellant at 22. ("At this
point, an evidentiary hearing to allow [for the examination of Stephens]
would not change anything. Juror [Stephens] is not likely to acknowl-
edge bias now, nor should this court accept any such denial of bias.").

                     7
we conclude that Darden's incarceration cannot be said to be a result
of a constitutional deprivation. See Smith, 455 U.S. at 221.

IV.

For the foregoing reasons, the decision of the district court denying
Darden's petition for habeas relief is

AFFIRMED.

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