Petition for Writ of Certiorari — Edward Thomas, Warden, Petitioner v. William Leroy Barnes

No. 19A996

IN THE

SUPREME COURT OF THE UNITED STATES

EDWARD THOMAS, WARDEN,

CENTRAL PRISON, RALEIGH, NORTH CAROLINA

PETITIONER,

v.

WILLIAM LEROY BARNES,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JOSHUA H. STEIN

ATTORNEY GENERAL

Jonathan P. Babb

Special Deputy Attorney General

*Counsel of Record

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

(919) 716-6500

jbabb@ncdoj.gov

CAPITAL CASE

QUESTION PRESENTED

In Brecht v. Abrahamson, 507 U.S. 619 (1998), this Court held that final

criminal convictions may only be overturned on federal habeas corpus review if an

error during the underlying proceeding exerted a substantial and injurious effect on

the jury’s verdict.

The question presented 1s:

Did the Fourth Circuit misapply this Court’s precedents by granting habeas

relief where there was no evidence that a juror’s contact with a third party had a

substantial and injurious effect on the jury’s verdict?

QUESTION PRESENTED

TABLE OF CASES AND AUTHORITIES

INTRODUCTION

REASONS FOR GRANTING THE PETITION

I. The Court of Appeals Misapplied this Court’s Decisions..............cccceeseeeeeeees

A. Brecht requires a showing of actual prejudice... ceeeseeseeeeeeees

B. The Fourth Circuit Did Not Properly Apply Brecht...

1. Ms. Jordan’s conversation with her pastor was not

5b000 0500) 0-5 ee

2. Ms. Jordan’s conversation with her pastor did not affect

the jury’s deliberations ........cccccccccccccccsseesssssssteceseseeeeseeseeeneneas

CONCLUSION oun eccececccccccccccceeeceeetensssseeeeeeesseeseeseneeeeeeseeessevssseesssssssuusestveneeessereenenees

A.

B

C.

D

TABLE OF CONTENTS

Barnes murdered a law enforcement officer and the officer’s wife...

Barnes was convicted of first-degree murder wi....cccccccceceeeeeccceeeeeeeeees

The state courts upheld Barnes’s conviction and sentence................

The Fourth Circuit ordered an evidentiary hearing on actual

PVCJUCICE oo... ceccccceccsccceseeseecceeeeceeseecessecevsvsesesseveceveecececeseeescceseuuauaaaauanaaas

Contrary to the district court’s finding, the Fourth Circuit

concluded that Barnes suffered actual prejudice ccc ceeceeeeecceeeeeeeeees

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Cee ee ee eee ee ee ee ee eee ee ee eee ee eee ee eee eee er er irr iis

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APPENDIX

A.

- lil -

Opinion of the United States Court of Appeals for the Fourth

Circuit, Granting Habeas Relief, Barnes v. Thomas, 938 F.3d 526

(Ath Cir, 2019) v.cccccccccccssceseesessessessesessessesesesseseseessecsusevstsutavevsesscsveteesees

Order of the United States Court of Appeals for the Fourth

Circuit, Denying Rehearing, Barnes v. Thomas, 2019 U.S. App.

LEXIS 37725 (4th Cir. 2019) oc cccceeseeeeeeeeeeeseeneteeeeeeeeeeeneeeeen

Decision of United States District Court for the Middle District of

North Carolina, Denying Habeas Relief, Barnes v. Thomas, 2018

WL 3659016 (M.D.N.C 2018) (unpublished)... eeceeeees

Recommendation of the United States Magistrate Judge for the

United States District Court for the Middle District of North

Carolina, Barnes v. Joyner, 2018 WL 4765207 (M.D.N.C 2018).......

36a

iv -

TABLE OF CASES AND AUTHORITIES

CASES

Barnes v. Joyner, 751 F.8d 229 (2014)... ccccceccccceseececeesseeeessseeseeseeseaeseseeeeeeeegans 6, 7,8

Barnes v. North Carolina, 523 U.S. 1024 (1998)... ccccccccsseseeecessaeseeesee essen eeseseeas 6

Bonner v. Holt, 26 F.8d 1081 (11th Cir. 1994) oo... cccceccccceeceseesaeseeeeesesesneeenees 16

Brecht v. Abrahamson, 507 U.S. 619 (1998)... cccccceceeececeteseeeeesesaneseeesnaseees passim

Chapman v. California, 386 U.S. 18 (1967) oo ccccccccccceneeeeeeeceeeeeeeseeneeneseteeeaney 12,18

Fry v. Pliler, 551 U.S. 112 (2007). ccccceeeeee cece eee eeeeneeceeeeeeeeeee cea aaeeaeeeeeseeeeeeeenes 14

Joyner v. Barnes, 185 S. Ct. 2648 (2015)... ccccecceccceessesesssseneeeesesesseaseeeseesegausnenes 8

Kotteakos v. United States, 328 U.S. 750 (1946) oo... cecccccccececccessueeeecssuaeesesaeeseuananes 13

Marino v. Vasquez, 812 F.2d 499 (Oth Cir. 1987)... ccc cccccsccsessseeeeeseeeseusueeeeseeeuanas 17

O'Neal v. McAninch, 513 U.S. 482 (1995) oo ccceccseecccseeesessuuseseeseesareeneeeeneseess 14

Parker v. Gladden, 385 U.S. 868 (1966) ......cccccccccccccccecccessesseseeceseeeeeeseaseneeeseseauenenees 16

State v. Barnes, 481 S.E.2d 44 (N.C. 1996) wo. cccccccceccccseeeeeecsssseneesesuuaeesseneessuunes 5, 6

State v. Barnes, 660 S.E.2d 53 (N.C. 2008) .o.ccccccccccccccccceccccecccsssseueueescssuesesesunesesauresesenes 7

Turner v. Loutstana, 379 U.S. 466 (1965) oo cecccccecccceccseeeeesesuusseueseesaueevaeesunesess 17

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. Vio cccccceeee cece cece ete e eee e eee n nent Ene EAE A EEE Ee CEG GG EEEEEEEEEE SEES EEE EEE eE EES 3

U.S. Const. amend. XIV, § 1 oiccccccccccccccccssecseeessussseececesseeunesseseesseseessseuuneessscesanescenenss 3

STATUTES

28 U.S.C. § L254 (A)L) occ cece eee e eee nett eter enn n ELLE CEE EASE EEE EEE EEE EEE EEEEEEEEEEEE EEE EE BEELER Ebi G 3

2B U.S.C. § 2254 (AL) ceccccecsessessessessessessessussressrsaressessessussussussssssessessvesseevearessessesveavenn 3, 8

N.C. Gen. Stat. § 1L5A-2000(C) ...ccccccccscccecccsseueseescssueeescessseueescsuaescceaureeuueseeeeeauaaes 18

N.C. Gen. Stat. § 15A-2000(€) 0. eeccccccceeeeeeceeeeeeesteeeeeeeetessssesseeseseceeeseeeesaasasseseeenss 18

N.C. Gen. Stat. § 15A-2000(8) oo. ccceeceeesseeteeesseesssssseessssesssssaeseeaeaenneeseesseueeeeeeeeees 18

RULES

S. Ct. Re LOC) cece cece eee e een eneneeeennee eee cent eee renee ee EELGEe EEE SEDEEGEEE EE EE EEE Een EEE EEG 12

INTRODUCTION

In Brecht v. Abrahamson, this Court held that the federal courts may only

grant habeas relief when a constitutional error causes actual prejudice. 507 U.S. 619,

638 (1993). An error meets this level of prejudice when it has a “substantial and

injurious effect or influence” on a case’s outcome. Jd. at 623. Below, the Fourth Circuit

misapplied this standard. It vacated a sentence based on a juror’s conversation with

her pastor, even though there was no evidence that the conversation actually affected

the jury’s sentencing decision.

Nearly thirty years ago, a North Carolina jury sentenced William Leroy Barnes

to death after he murdered a law enforcement officer and the officer’s wife. During

the sentencing phase, defense counsel warned the members of the jury that they

would face divine judgment if they chose to impose the death penalty.

A juror asked her pastor if1t was true that she would “burn in hell” if she voted

to impose the death penalty. The pastor told the juror that she would not, because

the jurors must follow the law of the land. The juror later read Bible verses reflecting

that message to the rest of the jury.

Because the pastor simply encouraged the juror to follow the law, he did not

improperly influence the jury’s deliberations. For this reason and others, the juror’s

conversation with her pastor did not actually prejudice the jury’s sentencing decision.

By holding to the contrary, the Fourth Circuit misapplied this Court’s ruling in

Brecht.

2.

This Court should grant certiorarl to maintain compliance with the Court’s

decisions on an important issue of law.

OPINIONS BELOW

The 2019 opinion of the U.S. Court of Appeals for the Fourth Circuit granting

habeas relief to Barnes 1s reported at 938 F.3d 526. (Pet’r App. A) The Fourth Circuit’s

order denying rehearing en banc, by a 9-6 vote, is reported at 2019 U.S. App. LEXIS

37725. (Pet’y App. B)

The unpublished 2018 decision of the district court denying habeas relief to

Barnes is available at 2018 WL 3659016. (Pet’r App. C) The magistrate judge’s 2018

report and recommendation is available at 2018 WL 4765207. (Pet’r App. D)

The 2014 opinion of the Fourth Circuit, granting an evidentiary hearing on

whether Barnes should receive habeas relief, is reported at 751 F.3d 229. This Court’s

2015 order denying the State’s petition for a writ of certiorari is reported at 135 S.

Ct. 2643.

The district court's unpublished 2013 decision declining to grant an

evidentiary hearing is available at 2013 WL 1314466. The magistrate judge’s 2012

report and recommendation is available at 2012 WL 373358.

The North Carolina Supreme Court’s 2008 order declining to review a lower

state court’s denial of post-conviction relief to Barnes is reported at 660 S.H.2d 58.

The North Carolina Supreme Court’s 1997 decision affirming Barnes’s

conviction is reported at 481 S.E.2d 44. This Court’s 1998 order denying Barnes’s

petition for a writ of certiorari 1s reported at 523 U.S. 1024.

JURISDICTION

This Court’s jurisdiction rests under 28 U.S.C. § 1254(1).

The United States Court of Appeals for the Fourth Circuit issued its opinion

on 12 September 2019. A petition for rehearing en banc was denied on 18 December

2019. On 10 March 2020, Chief Justice Roberts extended the time within which to

file a petition for a writ of certiorari until 16 May 2020.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitution provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right to a... trial... by an

impartial jury ....” U.S. Const. amend. VI.

The Fourteenth Amendment to the United States Constitution provides that

no “State [shall] deprive any person of life, liberty, or property, without due process

of law.” Id. amend. XIV, § 1.

28 U.S.C. § 2254(d)(1) provides that “[a]n application for a writ of habeas

corpus on behalf of a person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of the claim ... resulted in a decision

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that was contrary to, or involved an unreasonable application of, clearly established

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

STATEMENT OF THE CASE

A. Barnes murdered a law enforcement officer and the officer’s

wife.

On 29 October 1992, Barnes and his two co-defendants robbed and killed B.P.

Tutterow and his wife Ruby in their home in Salisbury, North Carolina. Tutterow

was seventy-five years old at the time of his death; Ruby was seventy-eight.

Before Tutterow was murdered, he worked as a deputy sheriff at a county jail,

where one of Barnes’s co-defendants was incarcerated. At the jail, the co-defendant

met Deputy Tutterow and learned that he often carried large amounts of cash in his

wallet. After the co-defendant’s release, he recruited Barnes and another codefendant to help him rob Deputy Tutterow. Pet’r App. D at 35a.

Several hours after the release, Barnes and his co-defendants went to Deputy

Tutterow’s home and murdered him and his wife. Barnes and a co-defendant shot

Deputy Tutterow several times in his face, head, and chest. They shot Ruby Tutterow

ten times, including four times in her head. After killing the Tutterows, Barnes and

his co-defendants stole cash, firearms, and jewelry. Pet’r App. D at 86a-37a. At early

court appearances, Barnes wore a gold necklace and a watch that he had stolen from

the Tutterows.

B. Barnes was convicted of first-degree murder.

After a month-long trial, a jury voted to convict Barnes and his co-defendants

on two counts each of first-degree murder. After separate proceedings at the penalty

phase, the jury voted to reeoommend that Barnes and one of his co-defendants be

sentenced to death. It also recommended that the other co-defendant be sentenced to

life in prison. State v. Barnes, 481 S.E.2d 44, 51 (N.C. 1997). The judge accepted the

jury’s recommended sentences. Id.

During the closing arguments at the trial’s penalty phase, counsel for one of

Barnes’s co-defendants “urged the jury not to impose the death penalty because

although state law permitted it, God’s law prohibited that penalty.” Pet’r App. A at

8a. Defense counsel warned the jury that if they imposed the death penalty, “one day

God would hold them accountable for their actions.” Id.

After the jury returned its sentencing recommendation, counsel for one of

Barnes’s co-defendants reported that a juror, later identified as Hollie Jordan, had

called her pastor to discuss whether her faith allowed her to vote for the death

penalty. Barnes, 481 S.E.2d at 66. Counsel also reported that a juror, also later

identified as Ms. Jordan, had taken a Bible into the jury room and read from the book

to the other jurors. Id.

Barnes and his co-defendants moved for a new sentencing hearing, claiming

that these events violated their right to an impartial jury under the Sixth and

Fourteenth Amendments. Jd. at 67. The trial court asked whether there was any

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evidence that “anybody discussed the particular facts of this case with anybody

outside the jury.” Jd. at 66-67. When defense counsel answered that there was not,

the trial court denied the motion. Id.

C. The state courts upheld Barnes’s conviction and sentence.

Barnes appealed to the North Carolina Supreme Court. Barnes, 481 S.E.2d 44.

In that appeal, he argued that the trial court had erred by not adequately

investigating Ms. Jordan’s conversation with her pastor. Jd. at 67. The State supreme

court rejected this argument and affirmed. Jd. at 51. Barnes filed a petition for a writ

of certiorari with this Court that sought review on this same issue. The Court denied

the petition. Barnes v. North Carolina, 5238 U.S. 1024 (1998).

Barnes then filed a motion in state trial court seeking post-conviction review.

In the motion, Barnes again claimed that Ms. Jordan’s third-party communication

required a new sentencing hearing. In support of his motion, Barnes submitted a new

summary of an interview that his counsel had conducted with Ms. Jordan. Pet’r App.

D at 38a. The summary reported that Ms. Jordan had read to the other jurors a bible

passage stating that it was “the duty of Christians to abide by the laws of the state.”

Id. Barnes also submitted a new affidavit from an investigator who had interviewed

Ms. Jordan. In the affidavit, the investigator stated that Ms. Jordan had

acknowledged that she spoke with her pastor during the jury’s deliberations. Barnes

v. Joyner, 751 F.3d 229, 236 (4th Cir. 2014) (Barnes J).

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The state trial court denied post-conviction relief. The court explained that

Barnes's claims about juror misconduct had already been addressed and rejected

during the direct appeal from his conviction. Jd. at 237. The North Carolina Supreme

Court denied Barnes’s request to review the trial court’s decision. State v. Barnes,

660 S.H.2d 53 (N.C. 2008).

D. The Fourth Circuit ordered an evidentiary hearing on actual

prejudice.

Barnes then filed this petition for a writ of habeas corpus in the U.S. District

Court for the Middle District of North Carolina. The district court denied the petition,

finding that Barnes had failed to show that the state court’s decision to deny his claim

was contrary to, or an unreasonable application of, clearly established federal law.

Barnes I, ‘751 F.3d at 232.

On appeal, a divided panel of the Fourth Circuit vacated the district court’s

decision and remanded for an evidentiary hearing. Id. Specifically, the Fourth Circuit

held that Barnes was entitled to a hearing on whether Ms. Jordan’s communication

with her pastor prejudiced the jury’s sentencing recommendation. Id. at 251 (citing

Remmer v. United States, 347 U.S. 227 (1954)).

Judge Agee dissented. The dissent would have held that the state courts had

not unreasonably applied this Court’s precedents. Jd. at 266. Specifically, the dissent

explained its view that there was no evidence that Ms. Jordan’s conversation with

her pastor related to “the matter pending before the jury,” as would be required to

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order an evidentiary hearing under this Court’s decision in Remmer. Barnes I, 751

F.3d at 260.

The State sought certiorari in this Court. This Court declined review. Joyner

v. Barnes, 135 S. Ct. 2648 (2015). Justices Thomas and Alito dissented from the denial

of certiorari. Id. at 2643-44. The Justices explained that they would have reviewed

the Fourth Circuit’s decision to address whether the court had erred by relying on

circuit precedent to grant habeas relief. Id. at 2646-47; see 28 U.S.C. § 2254(d)(1)

(habeas relief only available to correct unreasonable applications of clearly

established federal law “as determined by the Supreme Court of the United States”).

E. Contrary to the district court’s finding, the Fourth Circuit

concluded that Barnes suffered actual prejudice.

On remand, a magistrate judge held an evidentiary hearing. At the hearing,

Barnes called Ms. Jordan and two other jurors as witnesses.

Ms. Jordan testified that one of the defense attorneys at trial had asserted that

the jurors would “burn in hell” if they sentenced the defendants to death. Pet’r App.

D at 39a. She then talked to her pastor to ask whether the attorney’s statement

reflected the pastor’s views. She recalled that her pastor responded, “no, we had to

live by the laws of the land.” Pet’r App. D at 40a. She further testified that the pastor

did not say, or lead her to believe, that the Bible supported, or did not support, the

death penalty. Id.

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A second juror, Ardith Peacock, testified that she recalled that Ms. Jordan read

some Bible verses to the other jurors during sentencing deliberations. She could not

remember which specific verses Ms. Jordan read, or whether those verses were from

the Old or New Testament. Pet’r App. D at 41a. But she said that the verses included

the phrase “eye for an eye and tooth for a tooth.” Id.! She testified that Ms. Jordan

“didn’t say either way’ whether these passages supported the death penalty. Id.

A third juror, Leah Weddington, testified that a juror brought a Bible to the

jury’s deliberations, but she did not remember who. She did not recall which verses

were read, or whether they were from the Old or New Testament. Pet’r App. D at 41a.

But she “guess[ed]” that they were read “to ‘convince [the jury that] it was ok’ to vote

for the death penalty’—in other words, “to refute the religious statements made [by

defense counsel] during closing arguments.” Id.

After the hearing, the magistrate judge recommended that Barnes’s petition

be denied. Pet’r App. D at 45a. The judge found that Ms. Jordan’s pastor did not

advocate for a specific sentence, but instead only told Ms. Jordan “that the jurors

' Multiple passages in the Bible refer to this phrase. For instance, in the Old

Testament, God instructs Moses to teach his people that “if any mischief follow, then

thou shalt give life for life, eye for eye, tooth for tooth.” 21 Exodus 23-24. In the New

Testament, however, the Bible recounts how Jesus, in his Sermon on the Mount,

disavowed the earlier passage. 5 Matthew 38-39. This later passage states: “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.” Jd.

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would not ‘burn in hell’ and that they should follow the law.” Jd. Likewise, the judge

found that the Bible passages that Ms. Jordan read were not “used to support a

particular sentence.” Id. As a result, the judge recommended holding that Barnes

could not show actual prejudice because Ms. Jordan’s contact with her pastor had not

tainted the jury’s verdict. Id.

The district court adopted the recommendation and denied the petition. Pet’r

App. C at 25a. Like the magistrate judge, the district court found that Ms. Jordan

and her pastor did not employ “Bible verses to actively encourage jurors to impose

the death penalty,” but instead simply encouraged them “to decide the case based on

the facts presented and the law of North Carolina.” Pet’r App. C at 30a.

A divided Fourth Circuit again reversed. The court of appeals granted Barnes

a new sentencing hearing, holding that Barnes had “met his evidentiary burdens as

to both constitutional error and actual prejudice” under Brecht. Petr App. A at 8a.

Specifically, the court held that Barnes had shown actual prejudice because the

evidence suggested that Ms. Jordan had presented her pastor’s views to the jury to

assuage any religious concerns that the jurors may have had with the death penalty.

Id.

Judge Agee again dissented. The dissent explained that, to meet the “actual

prejudice” standard, a petitioner must show that an error “had a substantial and

injurious effect or influence in determining the jury’s verdict.” Petr App. A at 10a

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(citing Brecht, 507 U.S. at 637). The dissent would have held that the evidence from

the remand hearing did not meet this prejudice standard.

The dissent would have held that Barnes could not demonstrate actual

prejudice because Ms. Jordan’s pastor did not improperly influence the jury’s verdict.

As the dissent noted, when the pastor spoke with Ms. Jordan, the pastor did not take

a specific position on how Barnes should be sentenced. Pet’r App. A at lla. He also

did not discuss any facts that were not presented at trial or dispute the law that the

court had instructed the jury to apply. Petr App. A at 12a. The dissent further

observed that the jury spent relatively little time discussing Ms. Jordan’s

conversation with her pastor, suggesting that the conversation did not play a large

role in the jury’s deliberations. Pet’r App. A at 15a-16a. The dissent also noted that

the jury’s sentencing decision was based on an individualized assessment of Barnes’s

guilt. For example, the jury sentenced one of Barnes’s co-defendants to life in prison,

which indicates that the jury understood that its duty was to assess the appropriate

punishment for each defendant individually. In deciding Barnes’s sentence,

moreover, the jury carefully weighed fourteen different aggravating and mitigating

circumstances. Pet’r App. A at 16a.

The State moved for rehearing en banc. The Fourth Circuit denied the petition

by a vote of 9-6. Judges Agee and Wilkinson each submitted separate statements

dissenting from the denial of rehearing. Pet’r App. B at 18a.

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REASONS FOR GRANTING THE PETITION

I. The Court of Appeals Misapplied this Court’s Decisions.

In Brecht, this Court held that “habeas petitioners ... are not entitled to

habeas relief based on trial error unless they can establish that it resulted in ‘actual

prejudice.” 507 U.S. at 637.

Below, the Fourth Circuit strayed from this guidance by granting habeas relief

even though Barnes could not show that Ms. Jordan’s conversation with her pastor

actually prejudiced the result at trial. This error warrants the Court’s review. See S.

Ct. R. 10(c).

A, Brecht requires a showing of actual prejudice.

This Court made clear in Brecht that habeas relief 1s not warranted every time

an error could possibly have affected a jury’s deliberations. Instead, a habeas

petitioner must show “actual prejudice” to obtain relief.

Brecht answered the question of what standard the federal courts should apply

to determine when a constitutional error at trial warrants habeas relief. The

* petitioner in that case argued that relief should be granted whenever the error

satisfies the harmless-error test that applies on direct appellate review of criminal

convictions. See Chapman v. California, 386 U.S. 18, 24 (1967). Under that test, the

government has the burden to show that any constitutional error at trial was

“harmless beyond a reasonable doubt.” Jd. at 24. The test requires relief whenever

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there is a “reasonable possibility” that a different result would have occurred at trial

absent the error. Jd. at 23 (quoting Fahy v. Connecticut, 375 U.S. 85, 86 (1963)).

Rejecting this argument, this Court held that Chapman’s harmless-error

standard is ill-suited to the habeas context. Instead, on collateral review, an error

requires a new trial or sentencing hearing only if the error caused “actual

prejudice’—meaning that the error had a “substantial and injurious effect or

influence in determining the jury’s verdict.” Kotteakos v. United States, 328 U.S. 750,

777 (1946).

The Court explained that the nature of habeas corpus review requires an

elevated showing of prejudice. Granting relief when there is only a “reasonable

possibility” that an error affected a verdict would be at odds with the writ’s “historic

meaning,” which is to correct “grievous wrong[s.]” Brecht, 507 U.S. at 687 (citations

omitted). It would also require many more cases to be retried, often years after the

crimes at issue, when memories have faded and witnesses have dispersed. Jd. And it

would invite additional federal interference with the States’ sovereign interest in

administering their own criminal laws, over which the States have “primary

authority.” Id. at 635 (quoting Engle v. Isaac, 456 U.S. 107, 128 (1982)).

Given these concerns, this Court held that petitioners must show an error

caused actual prejudice, not simply the possibility of prejudice, to obtain habeas

relief. Id. at 637.

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This Court has reaffirmed this holding multiple times in the years since Brecht.

In O’Neal v. McAninch, for instance, the Court held that habeas relief should be

granted under Brecht in the “narrow circumstance” where the evidence is so evenly

balanced that judges have “grave doubt” on whether an error caused actual prejudice.

513 U.S. 482, 487 (1995). When the evidence is not in equipoise, however, this Court

reaffirmed that relief should be denied whenever a habeas petitioner cannot show

that an error caused actual prejudice. Id.

In Fry v. Pliler, this Court also made clear that the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) did not abrogate the Brecht standard. 551 U.S.

112 (2007). The Court explained that because “AEDPA limited rather than expanded

the availability of habeas relief,” it is implausible that Congress intended AEDPA to

“replace[ ] the Brecht standard of ‘actual prejudice.” Id. at 119 (quoting Brecht, 507

U.S. at 687).

Thus, in this case, Barnes must show actual prejudice to obtain relief. The

Fourth Circuit, however, wrongly relieved him of that burden.

B. The Fourth Circuit Did Not Properly Apply Brecht.

Below, the Fourth Circuit properly identified Kotteakos as supplying the

substantial and injurious effect standard for assessing whether Barnes was

prejudiced by Ms. Jordan’s contact with her pastor. Petr App. A at 6a. But the Fourth

Circuit’s analysis departed from Brecht’s holding that habeas relief is warranted only

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when an error has a “substantial and injurious effect or influence in determining the

jury’s verdict.” Brecht, 507 U.S. at 687 (quoting Kotteakos, 328 U.S. at 776).

As the dissent below observed, the evidence shows that Ms. Jordan’s contact

with her pastor did not substantially affect the jury's sentencing decision. Pet’r App.

A at 10a-1la. This is true for at least two reasons.

First, Ms. Jordan’s pastor did not improperly influence the jury’s deliberations.

When the pastor spoke with Ms. Jordan, he did not take a position on how Barnes

should be sentenced. He simply told Ms. Jordan to follow the law.

Second, Ms. Jordan’s conversation with her pastor did not substantially affect

the jury’s deliberations. The jury discussed the conversation only briefly. It then

proceeded to consider Barnes’s sentence based on the law.

1. Ms. Jordan’s conversation with her pastor was not

improper.

Barnes first cannot show prejudice because the evidence established that Ms.

Jordan’s pastor did not improperly influence the jury’s deliberations. The pastor’s

conversation with Ms. Jordan therefore cannot have actually prejudiced Barnes.

Extrinsic influences that improperly influence the jury’s deliberations

‘frequently rise to the level of actual prejudice, but did not do so here.

This Court has explained, for instance, that exposing jurors to a non-juror’s

opinion on a defendant’s guilt or punishment is prejudicial. Accordingly, in Parker v.

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Gladden, this Court held that a defendant was prejudiced when a bailiff told a juror

that the defendant was a “wicked fellow” who was “guilty.” 385 U.S. 368, 363 (1966).

Likewise, as the dissent below noted, external influences can be prejudicial

when they introduce new facts or legal arguments to jury deliberations. Pet’r App. A

at 13a-14a. The Eleventh Circuit, for instance, has found prejudice when a jury

returned a guilty verdict only after learning that the defendant was a habitual

offender, a fact that was not introduced at trial. Bonner v. Holt, 26 F.3d 1081, 1084

(11th Cir. 1994).

Here, however, Ms. Jordan’s conversation with her pastor did not touch on any

matters like these. The pastor did not take any position on how Barnes should be

sentenced. For example, the pastor did not say, or lead Ms. Jordan to believe, that

the Bible supported or did not support the death penalty. Pet’r App. A at lla. Nor did

he taint the jury’s deliberations by discussing facts or legal arguments that were not

presented at trial. Instead, the pastor simply told Ms. Jordan that she “had to live by

the laws of the land.” Id.

The Fourth Circuit itself recognized that the pastor only told the jury to follow

the law. The court held that the pastor's direction to apply “the laws of the land”

prejudiced Barnes by contradicting the statements of defense counsel. Pet’r App. A at

8a. But simply telling a juror to follow the law cannot have a “substantial and

injurious effect or influence” on a jury’s verdict. Brecht, 507 U.S. at 687 (quoting

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Kotteakos, 328 U.S. at 776). After all, that statement mirrored the court’s own

instructions to the jury to follow the law.

2. Ms. Jordan’s conversation with her pastor did not affect

the jury’s deliberations.

As the dissent below correctly recognized, Barnes also cannot show actual

prejudice because the evidence shows that Ms. J ordan’s conversation with her pastor

did not play a substantial role in the jury’s deliberations. The evidence instead shows

that the jury sentenced Barnes based on its own individualized assessment of his

culpability.

Ms. Jordan’s conversation with her pastor was brief, lasting no more than

several minutes. Moreover, the jury only discussed the conversation for, at most,

fifteen or thirty minutes in deliberations that lasted more than a day. Pet’r App. D at

41a. In Turner v. Louisiana, which the court of appeals relied on below, this Court

suggested that “brief encounter[s]” with external influences, as occurred here, are

rarely prejudicial. 379 U.S. 466, 473 (1965).

Moreover, findings of prejudice are usually based on a clear showing that an

external influence actually had a pivotal effect on a jury’s deliberations. For instance,

in Marino v. Vasquez, 812 F.2d 499 (9th Cir. 1987), the Ninth Circuit found prejudice

where an external influence broke a jury deadlock that had lasted “for nearly thirty

days.” Id. at 505. Here, in contrast, the jury did not struggle: It reeommended Barnes

be sentenced to death after just two days of deliberations, having barely discussed

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Ms. Jordan’s conversation with her pastor at all. Petr App. D at 4la.

Furthermore, as the dissent below noted, the jury sentenced Barnes based on

an individualized consideration of his culpability. For instance, the jury sentenced

one co-defendant, who did not directly participate in the murders, to life in prison.

Petry App. A at 16a. Furthermore, in sentencing Barnes, the jury carefully weighed

aggravating and mitigating circumstances, consistent with North Carolina law. See

N.C. Gen. Stat. § 15A-2000(c),(e)-(). The jury found that ten mitigating

circumstances weighed against the death penalty, but that four aggravating

circumstances outweighed them—aincluding the fact that Barnes’s murder of an elder

law enforcement officer and his wife in their home was “especially heinous, atrocious,

or cruel.” Id. (quoting N.C. Gen. Stat. § 15A-2000(e)(9)).

* * *

In sum, the evidence shows that Barnes was not actually prejudiced by Ms.

Jordan’s conversation with her pastor. A grant of habeas relief, in a case where there

is overwhelming evidence of guilt and the record showed there was no substantial

and injurious effect on the verdict, would render the Brecht harmless-error test near

meaningless. Review of the decision below is therefore warranted to secure

compliance with Brecht’s command that habeas relief should only be granted when

an error has a substantial effect on a jury’s decision.

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CONCLUSION

This Court should grant certiorari and reverse the decision of the United States

Court of Appeals for the Fourth Circuit.

Respectfully submitted, this the 15th day of May, 2020.

JOSHUA H. STEIN

ATTORNEY GENERAL

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A, §£ f LAE

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a athan P. Babb

pecial Deputy Attorney General

*Counsel of Record

North Carolina Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 716-6500

jbabb@ncdo}.gov