Petition for Writ of Certiorari — Terence Clark, Director, Prince George's County Department of Corrections, et al., Petitioners v. Jeremiah Antoine Sweeney

APPENDIX

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APPENDIX

TABLE OF CONTENTS

Page

Appendix A – Court of appeals opinion (Mar.

13, 2025) ........................................1a

Appendix B – District court memorandum

opinion denying federal

habeas petition (Apr. 14,

2022) ..........................................109a

Appendix C – District court order denying

federal habeas petition (Apr.

14, 2022) ....................................125a

Appendix D – District court order granting

motion for an order of

conditional

release

on

remand and setting deadline

for retrial (June 2, 2025) ...........127a

Appendix E – Court of appeals order

denying motion to stay

mandate (May 8, 2025) .............131a

Appendix F – Court of appeals order

granting

certificate

of

appealability

(June

26,

2023) ..........................................132a

Appendix G – Opinion of the Maryland

intermediate appellate court

denying leave to appeal

(Apr. 3, 2018) .............................134a

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Appendix H – Memorandum opinion and

order of the state postconviction court (Aug. 11,

2017) ..........................................136a

Appendix I – Opinion of the Maryland

intermediate appellate court

affirming the judgment of

conviction on direct appeal

(Oct. 8, 2013) .............................152a

Appendix J – Court of appeals order

denying rehearing en banc

(Apr. 8, 2025) .............................175a

Appendix K – Constitutional and statutory

provisions involved ...................176a

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APPENDIX A

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

_________________

No. 22-6513

_________________

JEREMIAH ANTOINE SWEENEY,

Petitioner - Appellant,

v.

RICHARD J. GRAHAM, JR., Warden, Western

Correctional Institution; ANTHONY G. BROWN,

Maryland Attorney General,

Respondents - Appellees.

_________________

Appeal from the United States District Court for the

District of Maryland, at Greenbelt. Paul W. Grimm,

Senior Judge. (8:19-cv-01289-PWG)

_________________

Argued: September 26, 2024 Decided: March 13, 2025

_________________

Before GREGORY and QUATTLEBAUM, Circuit

Judges, and Terrence W. BOYLE, United States

District Judge for the Eastern District of North

Carolina, sitting by designation.

_________________

Reversed and remanded with instructions by

unpublished opinion. Judge Gregory wrote the

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opinion, in which Judge Boyle joined.

Quattlebaum wrote a dissenting opinion.

_________________

Judge

ARGUED: Michael James Confusione, HEGGE &

CONFUSIONE, LLC, Mullica Hill, New Jersey, for

Appellant. Andrew John DiMiceli, OFFICE OF THE

ATTORNEY GENERAL OF MARYLAND, Baltimore,

Maryland, for Appellees. ON BRIEF: Anthony G.

Brown, Attorney General, Criminal Appeals Division,

OFFICE OF THE ATTORNEY GENERAL OF

MARYLAND, Baltimore, Maryland, for Appellees.

_________________

GREGORY, Circuit Judge:

This is a murder case in which Defendant

Jeremiah Sweeney invoked his constitutional right to

a jury trial. At that jury trial, his defense attorney

Justin Nunzio presented no evidence and called no

witnesses. The government’s case was built on

eyewitness testimony placing Sweeney as the

shooter—late at night, on a crowded street, and with

Sweeney almost a football field’s length away from

the decedent. Vantage point was an issue; light was

an issue; Sweeney’s position and the angle of the

decedent’s bullet wound was an issue. The jury was

presented with a diagram of the crime scene at trial.

The murder weapon was never found. The

government’s burden to prove Sweeney guilty beyond

a reasonable doubt balanced entirely on whether the

jury believed the eyewitness testimony.

After the presentation of the evidence concluded

but before the jury began its deliberations, Juror No.

4 visited the crime scene at night to “get an accurate

view.” The next day, after thirty-five minutes of

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deliberations, the judge was informed of Juror No. 4’s

unauthorized visit. After fifty-eight minutes, the jury

was brought into the courtroom. Both the judge and

Nunzio failed to sufficiently question Juror No. 4, and

both failed to ask any questions of the other jurors.

Instead, without knowing what other jurors

specifically had been told, but despite there having

been enough discussion that Juror No. 4 could state

that the other jurors “would have no problem with

basing their decision[ ] off of the evidence which was

presented in the case,” only Juror No. 4 was excused,

and Sweeney was swiftly convicted by the potentiallytainted eleven-member jury.

The circumstances of this case—hopefully very

rare to occur—undermine the essence of a jury trial

as well as the burden of proof in our criminal system.

Sweeney was entitled to a fair and impartial jury,

reaching a verdict based solely on the evidence

presented in the courtroom, and to a presumption of

innocence unless and until the government met its

burden of proving him guilty beyond a reasonable

doubt. Here, Juror No. 4 had some doubt, so he went

to the crime scene at night to get “an actual visual”

and walk through the area. But Juror No. 4’s doubt

should not have been resolved by anything seen or

heard outside the courtroom, and the government

should have been held to its burden based on the

evidence presented at trial.

Juror No 4’s actions were just the tip of the

iceberg: Judge and defense counsel both failed in their

responsibilities. The trial court judge did not properly

inquire into the jury taint. Nunzio rendered

representation far short of what is objectively

reasonable. The breakdown of the judicial process in

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this case—from juror to judge to attorney—deprived

Sweeney of his constitutional rights, and he is

therefore entitled to a new trial. We reverse the

district court’s denial of Sweeney’s petition.

I.

Jeremiah Sweeney was charged with eleven

counts related to an April 2010 murder in Prince

George’s County, Maryland. J.A. 14, 274, 443.

Represented by attorney Justin Nunzio, Sweeney

chose to proceed to a jury trial in June 2011 before the

state circuit court. J.A. 5, 14. During preliminary

instructions, the trial court judge instructed the

jurors to not conduct research or investigation into

the case on their own. J.A. 462.

Over four days, the government presented its case

through sixteen witnesses. J.A. 313. The defense did

not present any witnesses nor evidence. See J.A. 79.

Numerous government witnesses testified that

Sweeney had been arguing with neighbors about

stolen marijuana; he then opened fire, missing his

intended targets and instead fatally wounding a

bystander from approximately seventy-five yards

away, across a street with parking on both sides. J.A.

16–17, 224; see also Opening Br. at 22. The

government admitted into evidence a diagram of the

crime scene that had been discussed by numerous

witnesses, published to the jury, and discussed during

closing argument. See J.A. 183. All witnesses testified

that the murder weapon was a black gun, J.A. 146,

but the government never produced the murder

weapon, J.A. 17, see also Opening Br. at 2 n.1. Only

one government witness testified to seeing Sweeney

with a black gun, J.A. 17, and Nunzio had questioned

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the reliability of that witness’ vision and memory on

cross-examination, J.A. 114–15. A silver gun found in

Sweeney’s house was admitted into evidence by

stipulation. J.A. 67–69. At trial, a firearms examiner

testified that this silver gun could not have been used

to fire the shell casings found at the crime scene. J.A.

68, 322.

On cross-examination, Nunzio elicited testimony

that might have suggested a different shooter. He

believed this testimony demonstrated that the

decedent’s bullet wound, which showed that the bullet

entered the back of his head and exited the front, was

not consistent with the angle where Sweeney was in

relation to the decedent; rather, it was consistent with

the position of another individual at the scene, David

Walls. J.A. 91–92, 293. However, while some

witnesses testified that they had seen Walls with a

gun, see J.A. 318, 320, they testified that Walls did not

shoot the decedent, J.A. 93. Furthermore, the

firearms examiner testified that Walls’ gun, which

had been turned over, also could not have been used

to fire the casings found at the scene. J.A. 322.

All in all, the government’s case was built almost

entirely on eyewitness testimony placing Sweeney as

the shooter. As Nunzio later stated, “[t]he gun was

never found and all the government had was [ ]

statements from witnesses. There was no . . . ‘forensic

evidence’ of the gun or the shell casings . . . . It was all

testimony.” J.A. 110.

In the evening of the fourth day of trial, after the

government rested its case and before deliberations

began, Juror Number 4 took an unauthorized visit to

the crime scene. The morning of the fifth day, the

judge excused the alternate jurors. J.A. 187–88. The

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jury began its deliberations shortly after 10:15 am.

J.A. 188. Thirty-five minutes later, at 10:50 am, the

judge received a note from the jury. J.A. 189. Fiftyeight minutes after deliberations began, at 11:13 am,

the jury was brought into the courtroom, at which

time the judge asked Juror No. 4 to approach the

bench. J.A. 190. The rest of the jury remained in the

courtroom. J.A. 84, 190. The record does not reflect

whether the courtroom husher1 was on, although the

conversation appears to have occurred privately,

albeit with the remaining jurors observing. See J.A.

84–85, 190. The following colloquy ensued:

THE COURT:

I’ve got a note that says:

“Juror Number 4 went to the

crime scene yesterday to walk

through the scene and a couple

of witnesses2 were there. Is

this okay? There was no

interaction.”

Tell me what happened.

JUROR NO. 4: I just got out and went by the

scene, just basically the crime

scene, Your Honor. I just

wanted to get a visual because

1

A “husher” is a white-noise device that allows the

discussion of sensitive, ex parte, or otherwise off-the-record

information in a manner only heard by certain parties, in this

instance likely the court, the attorneys, Sweeney, and Juror

No. 4.

2 The witnesses whom Juror No. 4 indicated he saw were

government witnesses, as the defense did not put on any

witnesses. See J.A. 79.

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I know – I see topographical

views all the time and I know

that that does not give an

accurate – well, there’s a

better way to get an accurate

view, which is to see a visual,

an actual visual. And that’s

what I did. I spoke to no one.

THE COURT:

Is this in any way going to

affect your –

JUROR NO. 4: No, sir. Not at all.

THE COURT:

You can go back to your seat,

please.

NUNZIO:

Your Honor, if I may?

Do any of the other jurors

know that you went there?

JUROR NO. 4: They do. But they stopped me,

too, because they thought that

I should stop talking and I

present what I just said to you

all.

NUNZIO:

As a result of that, if you were

to go into deliberations, would

you be able to deliberate based

upon the facts here as opposed

to what –

GOV’T ATT’Y: What you saw?

NUNZIO:

– what you saw?

JUROR NO. 4: That is correct. I would have

no problem with basing my

decision, and they would have

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no problem with basing their

decision, off of the evidence

which was presented in the

case.

NUNZIO:

You know where I’m coming

from?

JUROR NO. 4: Yes, sir. Yes, sir.

THE COURT:

Thank you.

J.A. 190–92. This concluded the inquiry of Juror

No. 4, and he at some point thereafter returned to the

jury box. See J.A. 195–96.

The parties then discussed options for moving

forward:

NUNZIO:

Does the Court

preference?

have

a

GOV’T ATT’Y: But do you want – I know that

you were going through this

before. Do you want to take the

entire jury and have them go

through the neighborhood in

conjunction with the Sheriff’s

Department?

NUNZIO:

Well, here is my problem – he

can’t help but tell them what

he saw.

THE COURT:

I know. I don’t have a strong

preferences [sic]. I mean, I can

instruct – they know he went

there.

GOV’T ATT’Y: I would ask that a – in

conjunction with the Sheriff’s

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Department, that they would

be allowed to go to the crime

scene. But not get out, not talk

to anybody, but –

NUNZIO:

And if that’s the only way to

cure what you’re – that’s it.

THE COURT:

I’m not sure that’s even doable.

NUNZIO:

We probably can’t do it today.

THE COURT:

Well, and it requires a whole

lot of effort.

NUNZIO:

Logistics.

GOV’T ATT’Y: It won’t be today, and it won’t

be before Monday.

NUNZIO:

And the Defense

objection with that.

has

THE COURT:

I’m not sure that I can do it.

GOV’T ATT’Y: Can we check with

Sheriff’s Department?

THE COURT:

no

the

I’ll check. . . .

J.A. 192–93. The court then told Nunzio to speak

to his client, which he did for less than two minutes.

J.A. 194. Nunzio then reported to the court:

NUNZIO:

I posed three options to him.

He was very favorable – if this

juror saw the scene, he would

prefer all of them to take a look

at the scene, if it’s possible.

That way they have the same

perspective as Juror Number 4

and that way they are all equal

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going

back

into

deliberation room.

the

GOV’T ATT’Y: I think that’s the best option.

THE COURT:

And if that’s not possible,

what?

NUNZIO:

Then I would probably just

strike Juror Number 4.

[Some

conversation

omitted]

regarding

logistics

GOV’T ATT’Y: . . . [I]f it’s not a viable option

[to visit the crime scene],

maybe we should just strike

Juror Number 4 from the pool.

THE COURT:

He is agreeable to that?

NUNZIO:

I think he would be. He doesn’t

want to, but he would very,

very much prefer everybody

see what he saw.

J.A. 194–95. The judge indicated that he would

look into a potential crime scene visit. He then called

Juror No. 4 back to the bench and instructed him to

“not [ ] discuss anything that happened during your

tour of the crime scene. . . . Any experiences you had,

that’s not something I want you to share with

anybody else.” J.A. 195–96. Juror No. 4 answered,

“Yes, sir.” J.A. 196. Juror No. 4 then returned to the

jury box with the rest of the jurors. Id.

At 11:23 am, the judge then excused the jurors—

including Juror No. 4—to the jury lounge while the

judge inquired with the Sheriff’s Department about

the potential crime scene visit. Id.; J.A. 86 (Maryland

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Circuit Court judge stating, “So now all twelve jurors

are in the jury lounge”); J.A. 382 (Sweeney’s pro se

petition for postconviction relief stating that “Juror #4

return[ed] to deliberation room after informing

member of the jury about visiting the scene of the

crime”); J.A. 490–91 (district court opinion stating

that “The jury was excused and permitted to remain

together in the jury lounge.”); but see J.A. 82 (Nunzio

testifying that he believed only “[t]he eleven” were

together in the room). The attorneys and the judge

acknowledged that the jurors would likely continue to

talk about the case during the recess. They discussed:

THE COURT:

They can talk. I don’t know

what else to do.

NUNZIO:

He can’t be part of the process.

THE COURT:

I told him not to be sharing

any of these experiences.

NUNZIO:

Absolutely right. While they

are there they might as well do

something.

GOV’T ATT’Y: Instead of waiting around.

THE COURT:

Unless I put them in 12

different rooms. Well, I have

one more thing to do and I will

talk to the sheriff.

J.A. 196–97. The judge never gave an instruction

to the jurors not to deliberate during that time, nor an

instruction to the eleven jurors to avoid discussing or

considering anything Juror No. 4 had told them. The

jurors were together in the jury lounge for

approximately one hour and sixteen minutes.

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The judge returned at approximately 12:39 pm.

See J.A. 197.3 He spoke with Sweeney off the record

and asked if he wanted to proceed with eleven jurors

and whether he thoroughly discussed this with his

lawyer, to which Sweeney replied affirmatively. J.A.

201. The judge also explained that Sweeney was

giving up his right to a twelve-person jury, to which

Sweeney again replied affirmatively. Id.; see also J.A.

89–90.

The court then brought the jury in at 12:41 pm.

J.A. 201. The judge explained that “the ability of the

sheriff to take the other jurors out there today is nonexistent. We might be able to do it Monday, but I don’t

think that’s realistic. We’ve already told this jury that

this is a four-day event and we’re already in day five.”

J.A. 197. The judge then called Juror No. 4 up to the

bench and excused him. J.A. 198.

The judge then addressed the jury, telling them:

“I’m going to excuse you for lunch right now. I’ll ask

you to please be back in one hour if you would. . . . [A]s

I’ve excused Juror Number 4 – once all 11 of you are

present, then you may begin your deliberations

again.” J.A. 198–99. The judge never instructed the

remaining eleven jurors to not consider anything that

Juror No. 4 had told them, nor anything else related

to the potential taint.

3 The record provided by the parties includes pages of a trial

transcript that is excerpted in such a way that this conversation

with Sweeney, which appears to be off-the-record, begins midsentence; it is also unclear as to exactly when and in whose

presence this conversation occurred. See J.A. 201; see also J.A.

197. The facts above include that which is reflected in the

transcript.

13a

The eleven-member jury reached a verdict after

deliberating for approximately one hour and fifteen

minutes. Opening Br. at 6; J.A. 204–214. Sweeney

was convicted of second-degree murder, attempted

second-degree murder, two counts of attempted firstdegree murder, and four counts of use of a handgun

in the commission of a crime of violence. J.A. 356.4 He

was sentenced to two consecutive terms of life

imprisonment plus thirty years. Id.

II.

After his conviction, Sweeney filed a direct appeal

with the Maryland Court of Special Appeals. That

court affirmed his conviction and sentence. J.A. 487.

He then filed a petition for a writ of certiorari in the

Maryland Court of Appeals, which denied his petition.

Id.

Sweeney then filed a pro se petition for

postconviction relief in the Maryland Circuit Court, in

which he argued that his trial counsel, Nunzio, was

ineffective under Strickland v. Washington, 466 U.S.

668 (1984), for: (1) failing to object to Juror No. 4 being

allowed back into the deliberation room after advising

the court he had visited the crime scene; (2) striking

Juror No. 4 without his knowledge or consent; and (3)

failing to explain to Sweeney his rights to twelve

jurors or to declare a mistrial. J.A. 378–86. Sweeney

was later appointed counsel who filed two

supplements to the petition, raising additional claims

for ineffective assistance of counsel, including some

4 Sweeney was found not guilty of first-degree murder and

attempted murder, and the jury did not reach a verdict on any of

the three counts of first-degree assault. J.A. 280.

14a

unrelated to Juror No. 4’s unauthorized crime scene

visit. J.A. 387–430 (Suppl. to Pet. for Post Conviction

Relief); J.A. 431–42 (Second Suppl. to Pet. for Post

Conviction Relief).

One of Sweeney’s claims read: “Trial counsel

rendered deficient assistance by choosing to proceed

with an eleven[-]member jury without requesting voir

dire of the remaining jurors regarding Juror Number

4’s independent investigation of the crime scene or

failing to request a mistrial.” J.A. 432. It continued

that “[i]t is incumbent upon competent counsel to

ascertain the impact Juror Number 4’s improper

conduct had on the rest of the jury,” but Nunzio

instead “made the decision to move forward with an

11 member jury, essentially in a vacuum, without the

information necessary to determine if that was sound

strategy.” J.A. 437. Sweeney also expressed concern

with the court’s excusal of Juror No. 4 to the jury

lounge with the other jurors and the court’s failure to

instruct the other eleven jurors to not consider

anything Juror No. 4 had told them. See J.A. 433–35.

After briefing was filed, the Maryland Circuit Court

held a postconviction review hearing. See J.A. 44.

At the hearing, Nunzio testified that when Juror

No. 4 notified the court that he had gone to the crime

scene the night before, it “[a]bsolutely” caused him

some concern because the juror “wasn’t paying

attention to the Court rules” and “he went outside

what the Court instructed him to do.” J.A. 75. He

testified that he “[c]ertainly” had concern about what

Juror No. 4 had seen at the crime scene, particularly

as some of the key issues at trial concerned the

distance of certain buildings, the light at the scene at

night, and the vantage point. J.A. 75–77. Nunzio

15a

admitted that he did not know what Juror No. 4 did

at the scene, nor what the witnesses that Juror No. 4

saw were doing. J.A. 78.

Nunzio also testified as to the three options he

presented Sweeney: (1) take all the jurors to the crime

scene, (2) proceed with eleven jurors, or (3) move for a

mistrial, the third of which was not reflected in the

trial transcript. J.A. 80–81. He explained that he

discussed these options with Sweeney and that he

“did defer to [Sweeney],” but that it was “almost a

collective decision because the theory was if we had a

juror who wasn’t following the instructions from the

Court as to admonishing them from doing an

investigation, we didn’t know if we could trust him to

follow the rule of law as it was instructed by [the trial

court judge].” J.A. 90. As for the option of a mistrial,

Nunzio stated that:

If I had to retry the case, I’d retry it. We talked

about the jury pretty much extensively. Things

were very good. The jurors seemed to be

receptive as you watched them day after day.

They were very attentive. There were things

that came out of the trial that we both thought

were very positive as far as the [alternative

theory implicating Walls elicited during crossexamination.] So the theory was is [sic] that

was going very well. Okay? And quite frankly,

it was a shock to the prosecutor and to the

ladies and gentleman of the jury. We were

making headway. . . . But yes, we contemplated

a mistrial. I don’t know if we would have been

able to replicate that scenario again, but we did

talk about mistrial, but the theory was, and

16a

Sweeney acknowledged, we had made a lot of

headway in the courtroom itself.

J.A. 90–93. Nunzio was asked if he had any

concerns about reducing the number of jurors needed

to reach a unanimous decision of conviction. J.A. 94.

He answered, “do you think about it? Absolutely. But

in this case, again, we were making headway inside

the courtroom.” Id. He discussed how on crossexamination he had highlighted inconsistencies

between government witnesses. J.A. 94–95.

Government counsel asked Nunzio, “there was

nothing that [Juror No. 4] said that would lead you to

believe that his observations had in any way tainted

the other jury members, was there?,” to which he

answered, “[t]hat’s correct. . . . [I]f memory serves me,

I mean [the trial court judge] asked the questions

(indiscernible) and so forth. Memory serves me that

the jury was not tainted as to what he said or did. . . .

[T]here was no present-sense impression at that time

and even until today that the jury was contaminated.

I just – that’s the way I feel and that’s the way I did

feel.” J.A. 111–12; see also J.A. 117. When asked to

confirm that Juror No. 4 “did tell at least some jurors

that he went to the scene” and “did in fact have some

conversation with the jury,” Nunzio answered that he

would “defer to the record,” referring to the trial

transcript. J.A. 118.

After the hearing, the Maryland Circuit Court

denied Sweeney’s petition for postconviction relief.

J.A. 452–53. That court explained that Nunzio

“discussed options with [Sweeney] on how to proceed,”

and that Sweeney “failed to produce evidence that

Trial Counsel included the option to voir dire sua

sponte the remaining eleven jurors, failing to meet his

17a

burden.” Id. Sweeney then filed an application for

leave to appeal in the Maryland Court of Special

Appeals, see J.A. 455–81 (Appl. for Leave to Appeal

Denial of Pet. for Post Conviction Relief), which

denied his application per curiam. J.A. 482–84. That

court also denied his petition for writ of certiorari. See

J.A. 487.

Finally, with appointed counsel, Sweeney filed a

petition under 28 U.S.C. § 2254 in the United States

District Court for the District of Maryland. See

generally J.A. 4–39 (§ 2254 Petition). In that petition,

Sweeney argued that “[b]oth the court and

Petitioner’s attorney, Mr. Justin Nunzio, had a legal

duty to determine the extent to which Juror Number

4 had been tainted by his visit to the crime scene and

the other jurors had been tainted by their discussions

with Juror Number 4.” J.A. 7. He stated that Nunzio

should have requested a voir dire of the entire jury, as

this was “a protection against juror bias to which the

petitioner had a right,” and, furthermore, that this

was “a protection that the court had an absolute duty

on its own to provide.” J.A. 22. Sweeney explained

that the “trial court acted contrary to” what it was

required to do when the judge (1) “failed to ask Juror

Number 4 about the nature, the time, the duration, or

the circumstances of the visit”; (2) did not “hold a

hearing to determine what Juror Number 4 had

shared with the other jurors about the visit, or even

how long he had spoken with the other jurors about

that visit”; and (3) “allowed Juror Number Four to be

part of the jury’s deliberations for over an hour in the

jury lounge.” J.A. 24. He continued that these actions

by the trial court judge—and Nunzio’s failure to object

to any of them—forced Sweeney to “decide . . .

18a

whether to waive [his] right to a twelve member jury[]

without [ ] having the information reasonably

necessary to make an informed decision,” causing an

injurious effect on his trial. Id. Additionally, he

argued that the court’s failure to conduct an inquiry

of the jurors “denied [him] the opportunity to

determine the extent of those injuries.” Id.

The district court denied Sweeney’s petition. It

stated that Sweeney had “failed to bring a claim,

either on direct appeal or in his application for

postconviction review, that the trial court deprived

him of the right to an impartial jury when it did not

conduct a proper Remmer hearing,” and he “thus

couched his claim in his postconviction application

and in the instant habeas Petition as ineffective

assistance of counsel for failing to object to the trial

court’s failure to hold a proper Remmer hearing.” J.A.

493 (referring to Remmer v. United States, 347 U.S.

227 (1954)). The court ultimately held that “the

Circuit Court’s application of Strickland was neither

contrary to, nor an unreasonable application of,

federal law and Sweeney’s ineffective assistance of

counsel claim fails.” J.A. 496.

Sweeney then appealed to this Court. He again

argued that “Sweeney’s trial counsel rendered

deficient performance under Strickland by failing to

assert [his] right to a hearing and voir dire of the

entire jury panel.” Opening Br. at 13. He contended

that “Sweeney’s right to a fair and impartial jury

deliberations [sic] . . . was [ ] compromised by

counsel’s deficient performance.” Id.

19a

III.

Generally speaking, “a state prisoner’s federal

habeas petition should be dismissed if the prisoner

has not exhausted available state remedies as to any

of his federal claims.” Coleman v. Thompson, 501 U.S.

722, 731 (1991); see also 28 U.S.C. § 2254(b)(1). But in

some cases, it may be appropriate for courts to

consider certain issues that have not been properly

exhausted, and even do so sua sponte. The Supreme

Court has explained that exhaustion “is not rigid and

inflexible; [ ] courts may deviate from it and grant

relief in special circumstances.” Frisbie v. Collins, 342

U.S. 519, 521 (1952). As for acting sua sponte, courts

have done so to address waiver of defenses or

procedural defects, among other issues. For example,

“if a full trial has been held in the district court and it

is evident that a miscarriage of justice has occurred,

it may [ ] be appropriate for the court of appeals to

hold that the nonexhaustion defense has been waived

in order to avoid unnecessary delay in granting relief

that is plainly warranted.” Granberry v. Grer, 481

U.S. 129, 135 (1987); cf. Wood v. Milyard, 566 U.S.

463, 472 (2012) (explaining that courts can consider

sua sponte the timeliness of a habeas petition).

To be clear, “a federal court does not have carte

blanche to depart from the principle of party

presentation basic to our adversary system,” id., nor

to create a workaround for exhaustion. But the court

should “determine whether the interests of justice

would be better served” by addressing underlying

issues. Granberry, 481 U.S. at 136. If there exist

“special circumstances [that] require[ ] prompt

federal intervention” in a particular case, the court

should be able to act. Frisbie, 342 U.S. at 522.

20a

“Whether such circumstances exist calls for a factual

appraisal by the court in each special situation,” as

“special circumstances” will be “peculiar to th[e] case,

[and] may never come up again.” Id. at 521–22.

The special circumstances of this case, which will

likely never arise again,5 require our consideration of

an issue not cleanly articulated and exhausted by

Sweeney.

This case is extraordinary in its significant

breakdown of the judicial process. It began with Juror

No. 4 taking an unauthorized visit to the crime scene

the night before deliberations began, in direct

violation of the court’s orders, to get a more accurate

view of the scene. Juror No. 4 then told the other

jurors about his visit. The trial court judge failed to

sufficiently inquire about Juror No. 4’s visit to the

crime scene. The judge failed to ask at all about what

Juror No. 4 had told the other jurors. And the judge

failed to speak to any of the other jurors themselves.

Despite this, the judge allowed Juror No. 4 to return

to the jury lounge with the other jurors for over an

hour, with no instruction that they not deliberate.

After ultimately excusing Juror No. 4, the judge never

instructed the remaining eleven jurors that they were

not to consider anything Juror No. 4 had told them.

As for Sweeney’s attorney, Nunzio, he likewise failed

to sufficiently inquire into the jury’s impartiality.

5 It would be a damning indictment of this nation’s legal

system if trials are being so mishandled in more than the

extremely rare case. Cf. Fields v. Fed. Bur. of Prisons, 109 F.4th

264, 272 (4th Cir. 2024) (“If the officers’ conduct alleged here is

a frequent occurrence in prisons across the country, it would be

a telling indictment of the American carceral system.”).

21a

Nunzio also failed to demand that the court conduct

the hearing to which Sweeney was entitled in order to

probe into the jury taint. And instead of moving for a

mistrial, Nunzio chose to proceed with an elevenperson jury in a murder trial, where he had presented

no evidence nor witnesses, and without any

information about the potential taint of those eleven

jurors. As a result, Sweeney was quickly convicted by

an eleven-person jury and is now serving life in

prison. This breakdown—from juror, to judge, to

defense attorney—deprived Sweeney of his

constitutional rights. Like a game of Jenga, one or two

pieces can often be removed without causing collapse,

but when multiple pieces fundamental to our trial

system are pulled out from under a criminal

defendant, justice topples entirely.

As previewed above, the problems in this case

extend beyond the ineffective assistance of counsel,

which is how Sweeney has articulated his claim,

because many were caused by the judge’s own failures

to ensure the impartiality of Sweeney’s jury. Sweeney

identified many of these failures throughout his

various filings at the state and federal court levels.

For example, he indicated that the judge should have:

held an evidentiary hearing into what Juror No. 4 had

seen during his crime scene visit and what he had

shared with the other jurors, see, e.g., J.A. 7, 24 (§

2254 Petition); conducted an inquiry of the other

eleven jurors, see, e.g., J.A. 22 (§ 2254 Petition), 436–

37 (Second Suppl. to Pet. for Post Conviction Relief);

ensured that Juror No. 4 could not convey additional

information to the other jurors by not allowing him to

recess with them in the jury lounge, see, e.g., J.A. 24,

33 (§ 2254 Petition), 435 (Second Suppl. to Pet. for

22a

Post Conviction Relief); and instructed the remaining

eleven jurors not to consider anything Juror No. 4 had

told them, see, e.g., J.A. 435 (Second Suppl. to Pet. for

Post Conviction Relief). Nunzio’s deficiency in

representation was exacerbated by the judge’s own

shortcomings in failing to protect Sweeney’s

constitutional rights.

Due to the combination of extraordinary failures

from juror to judge to attorney, these “special

circumstances . . . require[] prompt federal

intervention” where it may otherwise be unavailable.

Frisbie, 342 U.S. at 522. It is this multitude of failures

that, together, take this case beyond our traditional

habeas review.

IV.

At our nation’s founding, the right to a trial by jury

was, along with representative government,

considered “the heart and lungs” of liberty. Letter

from Clarendon to W. Pym (Jan. 27, 1766), reprinted

in 1 Papers of John Adams 169 (R. Taylor ed. 1977).

This right was paramount to the Framers and chief

among the protections afforded by state constitutions.

See Erlinger v. United States, 602 U.S. 821, 829–30

(2024) (citations omitted). James Madison, who

drafted the Bill of Rights, “described protections for

the jury trial right as among ‘the most valuable’ that

appear in ‘the whole list.’” Id. at 830 (citing 1 Annals

of Cong. 755 (1789)).

The Sixth Amendment and due process under the

Fourteenth Amendment guarantee a criminal

defendant the right to a trial by an impartial jury.

U.S. Const. amend. VI; Irvin v. Dowd, 366 U.S. 717,

722 (1961). “No right touches more the heart of

23a

fairness in a trial.” Stockton v. Virginia, 852 F.2d 740,

743 (4th Cir. 1988). The Sixth Amendment also

affords a confrontation right that requires “a jury’s

verdict [ ] be based upon the evidence developed at the

trial,” which “shall come from the witness stand in a

public courtroom where there is full judicial

protection of the defendant’s right[s].” Turner v.

Louisiana, 379 U.S. 466, 472–73 (1965) (quotation

omitted). This right “goes to the fundamental

integrity of all that is embraced in the constitutional

concept of trial by jury.” Id. at 472 (quotation

omitted). Together, these rights ensure that a verdict

comes from the unanimous decision of “indifferent”

jurors based solely upon only the evidence developed

at trial. Irvin, 366 U.S. at 722.

“When a serious, non-speculative question of juror

impartiality arises during trial, the [trial court judge]

must determine whether the affected jurors remain

fair and impartial.” United States v. Smith, 919 F.3d

825, 834 (4th Cir. 2019); see also United States v.

Thompson, 744 F.2d 1065, 1068 (4th Cir. 1984)

(“When a question is raised . . . about whether a juror

can fulfill his duties with an open mind, the [trial]

court must determine that the juror is competent to

proceed before continuing with the trial.”). “A trial

judge must be ever watchful to prevent prejudicial

occurrences.” Gardner v. Ozmint, 511 F.3d 420, 424

(4th Cir. 2007) (citation and quotation omitted).

External influence on a juror triggers additional

safeguards. “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.” Barnes v. Joyner, 751 F.3d

229, 240 (4th Cir. 2014); see also J.A. 23, 25 (§ 2254

24a

Petition citing this case). “‘[U]nder clearly established

Supreme Court case law,’ an 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.’” Barnes, 751 F.3d at 245 (quoting

Robinson v. Polk, 438 F.3d 350, 363 (4th Cir. 2006)).

The distinction between external and internal

influences is important, as only external influences

“necessitate a thorough judicial inquiry.” Wolfe v.

Johnson, 565 F.3d 140, 161 (4th Cir. 2009). In

Remmer v. United States, the Supreme Court “clearly

established . . . a defendant’s entitlement to an

evidentiary hearing” to address allegations of

external jury influence, and “[p]ost-Remmer Supreme

Court case law has confirmed that due process

requires a hearing to alleviate concerns of juror

partiality.” Barnes, 751 F.3d at 242–43; see also Smith

v. Phillips, 455 U.S. 209, 215 (1982) (“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 explained that “[d]ue 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 at a hearing

like that ordered in Remmer.” Smith, 455 U.S. at 217;

see also Opening Br. at 20 n.2 (quoting the same). The

hearing can occur at any time when the potential

taint is discovered, during trial or post-verdict. See

25a

Barnes, 751 F.3d at 244 (citing Ladd v. State of S.C.,

415 F.2d 870, 873 (4th Cir. 1969)).

The Sixth Amendment also guarantees that “the

accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” U.S. Const.

amend VI. This “right to counsel exists, and is needed,

in order to protect the fundamental right to a fair

trial.” Strickland, 466 U.S. at 684. Furthermore, the

Supreme Court has recognized that “the right to

counsel is the right to the effective assistance of

counsel.” McMann v. Richardson, 397 U.S. 759, 771

n.14 (1970).

V.

This case presents an extraordinary confluence of

events, in which the rights central to our jury trial

system—revered by the Framers and enshrined in the

Bill of Rights—were denied to Sweeney.

A.

First, the trial court judge neglected his duty to

prevent prejudicial occurrences by failing to

adequately question Juror No. 4 and failing to inquire

at all into the potential impartiality of the other

eleven jurors.

The trial court judge was given a note indicating

that Juror No. 4 had visited the crime scene the night

before deliberations began “to walk through the

scene,” where he saw “a couple of [government]

witnesses.” J.A. 190. This clearly presented a nonspeculative question of Juror No. 4’s impartiality. See

Smith, 919 F.3d at 834. Beyond the obvious concerns,

there is case law from this Court intimating that a

juror’s unauthorized visit to a crime scene can violate

26a

a defendant’s constitutional rights to an impartial

trial and confrontation. Sherman v. Smith, 89 F.3d

1134, 1136–38 (4th Cir. 1996).6

Thus, based on the information in the jury note,

the judge was obligated to “determine whether [Juror

No. 4] remain[ed] fair and impartial.” Smith, 919 F.3d

at 834. We have made clear that “although ordinarily

the question as to whether a juror is fair and

impartial is a matter addressed to the discretion of

the trial judge,” still “the judge is bound either to

make or to permit such inquiries to be made as will

enable him in the exercise of his discretion to exclude

from the jury persons who . . . are not fair and

impartial jurors within the contemplation of the law.

This is true in all cases.” Neal v. United States, 22

F.2d 52, 53 (4th Cir. 1927). Therefore, while it is true

that a trial judge has “ample leeway to formulate the

questions to be asked” and “broad discretion in

evaluating the significance of potential juror bias,”

Smith, 919 F.3d at 834–35, this leeway presupposes

that the judge formulates some questions, as he is

“bound” to do, see Neal, 22 F.2d at 53, and does

evaluate the significance of the bias—neither of which

occurred here.

All the judge said to Juror No. 4 was “Tell me what

happened,” and then “Is this in any way going to affect

6 In Sherman, we stated: “[Defendant] contends that [the]

juror[ ]’s unsupervised visit to the crime scene violated his Sixth

Amendment rights to confront and cross-examine witnesses

against him and to be judged by an impartial jury. We shall

assume for purposes of argument that [the] juror[ ]’s site visit

amounted to a constitutional violation of [defendant’s] rights.”

89 F.3d at 1137.

27a

your –”. J.A. 190–91. To begin, neither of these are

formulated as questions: the first is an open-ended

directive, and the second was cut off. Additionally, the

judge did not probe into Juror No. 4’s responses at all.

To “Tell me what happened,” Juror No. 4 gave a very

brief reply, indicating that he “got out and went by the

scene” to “see . . . an actual visual” because he “see[s]

topographical views all the time” and considers them

to “not give an accurate [view].” J.A. 190–91. Juror

No. 4’s short statement provoked numerous potential

follow-up questions—e.g., how long were you at the

scene, what time of day did you go there, what

buildings did you walk by, which witnesses did you

see, what is your familiarity with topographical

views, what did you learn from the actual visual, did

it confirm or call into question what was presented at

trial—none of which the judge pursued. Juror No. 4’s

reference to the topographical views, like the diagram

presented at trial, indicate that he had doubts that he

wanted to resolve through a visit to the crime scene—

doubts to which Sweeney was entitled unless the

government met its burden based solely on the

evidence presented at trial. Despite the paucity of the

information that the judge elicited from Juror No. 4,

the judge only asked, “Is this in any way going to

affect your –” before being cut off by Juror No. 4, who

replied, “No.” J.A. 191. The judge then told Juror No.

4 to return to his seat, content with Juror No. 4’s

responses.

In addition to the question of Juror No. 4’s

impartiality, the judge was also presented with a nonspeculative question of the other jurors’ impartiality:

Through the jury note, the judge knew that Juror No.

4 had mentioned his visit to other jurors. But the

28a

judge failed to ask any questions of Juror No. 4 about

his conversation with the other jurors. He did not ask

what information Juror No. 4 told the other jurors, to

whom he relayed that information, what the other

jurors’ reactions were, whether the other jurors had

any questions, who told him he should inform the

judge, et cetera. Additionally, although the jury had

been deliberating for thirty-five minutes before the

note was delivered and fifty-eight minutes before the

jury was brought into the courtroom, the judge did not

inquire as to how long any conversation about Juror

No. 4’s visit lasted.

Furthermore, the judge did not conduct any

inquiry whatsoever of any of the other eleven jurors.

When such a situation arises, judges typically

“question[ ] each juror individually” to determine

whether any are biased. Smith, 919 F.3d at 834. For

example, after the jury foreperson in a narcotics case

informed the judge that a juror “conduct[ed] an

independent investigation of certain evidence, which

had already been admitted at trial, and reported her

findings to the other members of the jury,” the judge

“questioned every member of the jury individually,”

and, more specifically, “extensively questioned [them]

to determine if the extraneous material which came

before the jury had tainted or prejudiced any of them.”

United States v. Seeright, 978 F.2d 842, 849–50 (4th

Cir. 1992). In contrast here, the trial court judge did

not ask questions of any of the other eleven jurors,

such that he was not even in a position to determine

whether they had been tainted or prejudiced by the

information reported by Juror No. 4. To put it plainly,

the judge did nothing to find out whether the other

eleven “affected jurors remain fair and impartial.”

29a

Smith, 919 F.3d at 834. Instead, without any

questioning, the other eleven remained on the jury to

deliberate and ultimately convict Sweeney.

The trial court judge abdicated his responsibility

to be “ever watchful to prevent prejudicial

occurrences.” Gardner, 511 F.3d at 424. Not only did

he not ask sufficient questions of Juror No. 4, but he

did not ask any questions to determine whether any

of the other eleven jurors were no longer impartial.

These failures encroached on Sweeney’s right to an

impartial jury and confrontation right under the

Sixth and Fourteenth Amendments.

B.

Beyond this general responsibility to ensure an

unprejudiced jury, because Juror No. 4’s crime scene

visit was an external influence, it triggered Sweeney’s

right to an evidentiary hearing. The trial court judge

did not conduct such a hearing.

“[T]he Supreme Court has never provided a

formula for deciding whether a particular influence

upon the jury was external or internal,” but it has

indicated that “the distinction . . . is [ ] ‘based on the

nature of the [influence].’” Robinson, 438 F.3d at 362

(quoting Tanner v. United States, 483 U.S. 107, 117

(1987)). However, there is clearly established

Supreme Court case law indicating that both (1)

extraneous prejudicial information and (2) outside

influence upon the partiality of the jury are external

influences. Barnes, 751 F.3d at 245. As for the first,

extraneous prejudicial information is “information

that was not admitted into evidence but nevertheless

bears on a fact at issue in the case.” Robinson, 438

F.3d at 363.

30a

Here, Juror No. 4’s visit to the crime scene

constitutes extraneous prejudicial information. He

went to the scene to get “an actual visual” that he

considered “better” than the “topographical view[ ]”

presented at trial, J.A. 190, and that visual bears on

facts at issue in the case—particularly where vantage

point, the amount of artificial light at night, and the

distance of certain buildings were key issues at trial,

and where the government had published a diagram

of the crime scene to the jury. J.A. 76–77, 183; see also

J.A. 30 (§ 2254 Petition). As Sweeney argued to the

district court, “Juror Number 4’s personal observation

of the crime scene would have had to have affected his

views on these issues.” J.A. 31 (§ 2254 Petition). This

information is quite different from that which has

been deemed an internal influence, such as a juror

reading an “eye for an eye” Bible passage during

deliberations, Robinson, 438 F.3d at 358–63, or a

juror using drugs and alcohol during trial, Tanner,

483 U.S. at 117. In those instances, the jurors’ actions

had no bearing on any facts relevant to the trial but

were instead “internal to the deliberation process.”

Robinson, 438 F.3d at 363. In contrast, Juror No. 4’s

crime scene visit and the information he gleaned is

properly considered extraneous information because

“it was not revealed to the jury during trial, and it is

not the kind of general information that jurors bring

with them into deliberations.” Fullwood v. Lee, 290

F.3d 663, 682 (4th Cir. 2002).

In such a case, where “the danger is not one of

juror impairment or predisposition,” Stockton, 852

F.2d at 744, but rather the effect of the extraneous

prejudicial information, Sweeney is entitled to an

evidentiary hearing like that in Remmer, see United

31a

States v. Sandalis, 14 F. App’x 287, 289 (4th Cir.

2001) (“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 . . . is required”) (citing Remmer,

347 U.S. at 229–30). The potential impact of the

extraneous prejudicial information on as many as all

twelve jurors makes this even more necessary. “This

potentially widespread taint of the jury compelled the

district court to conduct a Remmer hearing.” United

States v. Johnson, 954 F.3d 174, 181 (4th Cir. 2020).

But no such hearing was conducted.

Assuming arguendo that the colloquy of Juror No.

4 could constitute such a hearing, it fell far short of

what was required. A trial “court’s management of

th[e] incident” at such a hearing must be “both

procedurally and substantively” sound. Id. at 180.

Procedurally speaking, the judge has a responsibility

to question all potentially affected jurors himself. See

id. at 180–81. The judge here fell short of this

procedural requirement by first failing to ask Juror

No. 4 about what information he had relayed to the

other eleven jurors, and then failing to conduct any

inquiry of the other eleven jurors. But “[w]ithout

questioning each juror individually, the district court

could not know whether any remaining jurors were

prejudiced by [Juror No. 4’s crime scene visit], even if

those jurors had not witnessed [the scene

themselves].” Id. at 181. Furthermore, a court

“confronted with a credible allegation of an improper

external contact” may not rely on third-party

information to assuage any concerns about said

contact. Id. at 180. But Nunzio’s question, “if you were

to go into deliberations, would you be able to

32a

deliberate based upon the facts here as opposed to

what . . . you saw?” prompted Juror No. 4 to respond

for himself and on behalf of the other jurors, saying

that “they would have no problem with basing their

decision[ ] off of the evidence which was presented in

the case.” J.A. 192. Not only did the judge fail to elicit

any such information himself, but the information

about the other eleven jurors’ alleged impartiality

was given by a third party, Juror No. 4.

Substantively, the court cannot just “engage[] in

an abbreviated consideration of [Juror No. 4’s]

allegation.” Johnson, 954 F.3d at 180–81. Rather, “the

entire picture should be explored.” Remmer v. United

States, 350 U.S. 377, 379 (1956). In a case where a

juror reported that members of the jury were being

photographed by defendants’ associates, this Court

held that “the court’s attention to the question

whether the reported incident, in fact, had occurred

was only the beginning of the inquiry,” and the judge’s

failure to probe further was “substantively deficient.”

Johnson, 954 F.3d at 180–81. Here, the judge himself

only said to Juror No. 4 “Tell me what happened,” J.A.

190, which should have been just the beginning of the

inquiry.

The trial court judge’s failure to conduct a proper

evidentiary hearing, to which Sweeney was entitled

by law, deprived Sweeney of his constitutional rights

under the Sixth and Fourteenth Amendments.

C.

In addition to the judge’s failure to sufficiently

inquire into the entire jury’s potential prejudice, he

also failed to take proper steps to mitigate or cure that

33a

taint and to more broadly prioritize Sweeney’s right

to a fair trial.

Even after learning that Juror No. 4 was tainted,

the judge allowed him to return to the jury lounge

with the other eleven jurors while the court and

counsel considered next steps. See J.A. 86, 490–91.

The judge acknowledged that he could separate the

jurors in twelve different rooms. J.A. 197. This would

have avoided the possibility that Juror No. 4 would

share additional information, worsening any taint of

the other eleven, and also ensure that the jury did not

resume deliberations until the parties had resolved

how to proceed. However, the judge chose not to do so.

Id. As Sweeney argued to the district court, “the only

explanation given for both tolerating and facilitating

these contacts was that the trial was running long

and there was not time to have the jurors ‘waiting

around’ or ‘in 12 different rooms.’” J.A. 33.

Consequently, all jurors remained together for one

hour and sixteen minutes.

Beforehand, the judge had only briefly instructed

Juror No. 4 to “not [ ] discuss anything that happened

during your tour of the crime scene. . . . Any

experiences you had, that’s not something I want you

to share with anybody else.” J.A. 196. The judge

provided no further admonition or instruction.

Significantly, this was an instruction given to a juror

already known to disobey court orders, and whom the

judge recognized may continue to disobey orders.

Earlier, when Nunzio said, “[Juror No. 4] can’t help

but tell them what he saw,” the judge acknowledged,

“I know.” J.A. 192.

Furthermore, the judge did not instruct any of the

jurors to not deliberate during this recess. See J.A. 86

34a

(postconviction court judge stating, “I understand

they were not instructed.”). To the contrary, the judge

acknowledged that they likely would talk about the

case, stating, “They can talk. I don’t know what else

to do.” J.A. 196–97. Nunzio chimed in, “While they are

there they might as well do something,” and

government counsel added, “Instead of waiting

around.” Id.; see also J.A. 18 (§ 2254 Petition

explaining the same). Their assumption that the

jurors would talk included Juror No. 4, as he was not

instructed that he could not participate in any

conversations. As mentioned above, Juror No. 4 was

only instructed to not share what happened when he

visited the scene, but not that he should withhold his

opinions on the case, which had been impacted by that

visit. Not only did the trial court judge fail to

determine the extent of the jury taint, but he also

failed to then separate the jury to prevent further

contamination, nor did he properly instruct them. It

disturbs trust in the judicial process that the judge

allowed Juror No. 4 to return to the jury lounge with

the rest of the jurors and that the jurors were

presumed to continue their discussions, absent any

instruction otherwise, for well over one hour.

During that recess, the court and parties discussed

how to proceed. When a juror or jurors are deemed

tainted, a judge has various options for proceeding.

This includes replacing a biased juror with an

alternate, or proceeding with a jury of less than

twelve people. Thompson, 744 F.2d at 1068. It is also

within a judge’s discretion to declare a mistrial based

on a tainted juror, id., and a judge may declare a

mistrial sua sponte if it is a “manifest necessity,”

United States v. Perez, 22 U.S. (9 Wheat.) 579, 580

35a

(1824); see also United States v. Sloan, 36 F.3d 386,

400 (4th Cir. 1994). While “a valid concern may be the

expense and loss of time associated with a mistrial,”

“the court must give primary attention to the

possibility of a biased juror.” Thompson, 744 F.2d at

1068. A defendant’s constitutional right to a fair and

impartial trial must always take priority—and

certainly before the convenience of the court, counsel,

and jury.

The only options reflected in the record—and

which were offered by government counsel and

Nunzio—were bringing the entire jury to the crime

scene or striking Juror No. 4. See J.A. 192–95. When

Nunzio asked, “Does the Court have a preference?,”

the judge responded, “I don’t have a strong

preference[ ].” J.A. 192. However, the judge went on

to express a preference against the crime scene visit,

remarking, “I’m not sure that’s even doable,” and that

“it requires a whole lot of effort.” J.A. 193. Despite

Nunzio reporting that Sweeney “would very, very

much prefer everybody see what he saw” at the crime

scene, and government counsel agreeing “I think

that’s the best option,” the judge ultimately

determined that option was off the table. J.A. 194–95;

see J.A. 19 (§ 2254 Petition explaining the same). He

stated that “the ability of the sheriff to take the other

jurors out there today is non-existent. We might be

able to do it Monday, but I don’t think that’s realistic.

We’ve already told this jury that this is a four-day

event and we’re already in day five.” J.A. 197. The

judge rejected the option that was preferred by both

parties in favor of finishing the case quickly—and

that is exactly what happened, with the elevenmember jury returning a verdict on eight counts after

36a

deliberating for only one hour and fifteen minutes.

See Opening Br. at 6; J.A. 204–214.

The trial court judge never even contemplated a

mistrial. He never contemplated replacing Juror No.

4 with an alternate, whom he had just excused earlier

that day. See J.A. 187–88. He also never contemplated

probing further into the potential taint to better

determine whether a mistrial was a “manifest

necessity.” In this way, he did not give his “primary

attention to the possibility of [ ] biased juror[s]” in the

remaining eleven, as is required, Thompson, 744 F.3d

at 1068; rather, he seemed to prioritize expediency.

While the saying goes, “justice delayed is justice

denied,” it is also true that justice rushed may be no

justice at all.

The trial court judge ultimately struck only Juror

No. 4. But as Sweeney previously argued to the

Maryland Circuit Court, “[t]he same rationale that

provided the basis for removing Juror Number 4

applied equally to an unknown number of jurors with

whom Juror Number 4 spoke about his independent

investigation.” J.A. 435.

A curative instruction to the remaining jurors

might have helped mitigate any taint, as juries are

presumed to follow instructions. See United States v.

St. Louis, 889 F.3d 145, 155 (4th Cir. 2018). But the

trial court judge skipped over this bulwark, too. After

excusing Juror No. 4, the judge never instructed the

remaining eleven jurors to not consider what Juror

No. 4 had told them. See J.A. 435 (arguing in Second

Suppl. to Pet. for Post Conviction Relief that

“[a]lthough the court admonished Juror Number 4 to

not further discuss his conduct and whatever

conclusions he drew as a result of his investigation,

37a

the court did not likewise instruct the other jurors to

refrain from discussing or considering whatever Juror

Number 4 told them.”) (emphasis in original); see also

J.A. 462 (Appl. for Leave to Appeal Denial of Pet. for

Post Conviction Relief stating that “The remaining

jurors were not advised to not discuss the case or what

they may have learned from Juror Number 4.”).

Accordingly, the eleven-person jury’s guilty verdict

could have been based on the information that Juror

No. 4 had conveyed to them in the morning, which the

judge never inquired about, or the information

discussed during the recess, both of which the judge

never instructed them not to consider.

The judge’s failure to investigate prejudice in the

jury, conduct the hearing that Remmer requires,

consider a mistrial, and take steps to mitigate any

potential further taint significantly contributed to a

breakdown of the judicial process in this case, such

that Sweeney was deprived of his constitutional

rights.

D.

Next, Sweeney’s attorney rendered inadequate

counsel by failing to sufficiently inquire into the

prejudice that had potentially infected the jury and

then, uninformed, choosing to proceed with an elevenmember jury.

For a criminal defendant to show that his right to

the effective assistance of counsel has been violated,

he must establish both that his counsel’s performance

was deficient, and that the deficient performance

prejudiced his defense. Strickland, 466 U.S. at 687.

As for deficient performance, counsel’s conduct must

“f[a]ll below an objective standard of reasonableness.”

38a

Id. at 688. The Supreme Court has explained that

“counsel has a duty to make reasonable investigations

or to make a reasonable decision that makes

particular investigations unnecessary.” Id. at 690–91.

Here, Nunzio did not reasonably investigate Juror

No. 4’s taint nor the potential taint of the remaining

eleven jurors; additionally, his decision that further

investigation was unnecessary was not objectively

reasonable.7

After the judge spoke ever so briefly with Juror No.

4, Nunzio asked permission to pose questions to Juror

No 4 himself. J.A. 191. But the questions he then

asked were not much more probative nor the

responses revealing. Nunzio first asked, “Do any of

the other jurors know that you went there?”, to which

Juror No. 4 responded, “They do. But they stopped me

. . . because they thought that I should . . . present

what I just said to you all.” J.A. 191. At this point,

Nunzio could not reasonably decide that probing

further into this matter was unnecessary. He had

only asked if any of the other jurors knew that Juror

No. 4 went to the crime scene, and Juror No. 4’s

response did not elucidate how many of the other

jurors knew—was it all of them, a few, or only one?

Additionally, Juror No. 4’s response indicating that

“they” knew he went to the crime scene should have

spurred extensive additional inquiry: What did they

7 See J.A. 437 (arguing in Second Suppl. to Pet. for Post

Conviction Relief that “It was incumbent upon competent

counsel to ascertain the impact Juror Number 4’s improper

conduct had on the rest of the jury. Trial counsel made the

decision to move forward with an 11 member jury, essentially in

a vacuum, without the information necessary to determine if

that was sound strategy.”).

39a

know about him going there, what information had he

shared with them, and how did they react, for

example. Instead, Nunzio’s next question was,

“[W]ould you be able to deliberate based upon the

facts here as opposed to what . . . you saw?” J.A. 191.

Juror No. 4 then responded, “That is correct. I would

have no problem with basing my decision, and they

would have no problem with basing their decision, off

of the evidence which was presented in the case.” J.A.

192. This answer is troubling for a few reasons.

First, Juror No. 4’s response suggests that what he

saw at the crime scene verified what he had heard at

trial from the government. It is reasonable to infer

that Juror No. 4 expressed that he could “bas[e] [his]

decision . . . off of the evidence which was presented

in the case” because his visit confirmed the evidence

presented at trial—eyewitness testimony and the

diagram—all of which was government evidence. J.A.

192. Second, Juror No. 4 was speaking not only for

himself, but on behalf of the other jurors with respect

to their ability to be impartial. As Chief Justice

Marshall explained, “[t]hose who try the impartiality

of a juror . . . ought to hear the statement made by

[that juror].” Neal, 22 F.2d at 54 (quotation omitted).

It is unreasonable to make a decision about the other

eleven jurors’ potential taint based on a comment

made by Juror No. 4, rather than by those eleven

jurors themselves. Finally, Juror No. 4’s remark

indicates that he knew, or at least had insight into,

how the other jurors would proceed moving forward

based on how they had reacted to the information he

shared.

But again, despite the obvious concerns, Nunzio

did not ask any follow-up questions and only said,

40a

“You know where I’m coming from?” J.A. 192. Juror

No. 4 responded, “Yes, sir.” J.A. 192. The inquiry then

ended.

Shortly thereafter, when discussing potential

options for moving forward, Nunzio acknowledged

that “[Juror No. 4] can’t help but tell them what he

saw.” J.A. 192. Despite this acknowledgment; based

only on the scant, troubling responses from Juror No.

4; and after a less than two-minute conversation with

his client, who was facing life sentences in a murder

trial in which he had not presented any evidence;

Nunzio informed the court that he wished to bring all

jurors to the crime scene and, if that was unfeasible,

“I think” move forward with eleven jurors. J.A. 195.

Nunzio—nor anyone else, judge or government

counsel included—did not contemplate a potential

mistrial on the record. He did not present Sweeney

with the option of replacing Juror No. 4 with an

alternate juror. He did not consider further inquiry

into Juror No. 4’s taint. He did not request the judge

hold an evidentiary hearing like that in Remmer, to

which Sweeney was entitled. He did not ask to

conduct an inquiry of the other jurors as to what they

had learned and whether they, too, were tainted.8 At

each of these points, Nunzio failed to question the

court’s error and failed to perform his role in the

8 See J.A. 435 (arguing in Second Suppl. to Pet. for Post

Conviction Relief that “In failing to request that the court voir

dire the rest of the jury to ascertain precisely what Juror

Number 4 told them and to what extent they may have been

influenced by this information, before deciding to proceed with

an 11 member jury, trial counsel rendered deficient assistance

that caused prejudice to Petitioner.”).

41a

judicial process as defense counsel; his error

compounded that of the court. Nunzio chose to instead

proceed, in a vacuum, with a potentially-tainted

eleven-person jury. This choice was unreasonable.

As Justice Gorsuch has explained, “at the time of

the [Sixth] Amendment’s adoption and for most of our

Nation’s history, the right to a trial by jury for serious

criminal offenses meant a trial before 12 members of

the community—nothing less.” Khorrami v. Arizona,

143 S. Ct. 22, 23 (2022) (Gorsuch, J., dissenting from

denial of cert.). The Federal Rules of Criminal

Procedure provide a right to a twelve-member jury,

although a defendant can waive this right by giving

knowing and intelligent consent in open court. United

States v. Fisher, 912 F.2d 728, 731 (4th Cir. 1990);

Fed. R. Crim. P. 23(b). But waiving that right should

be undertaken with the utmost diligence and

discernment. Studies have shown that the risk of

conviction rises as the size of the jury diminishes. See

Ballew v. Georgia, 435 U.S. 223, 234 (1978) (citing

statistical studies). Therefore, one could say that

proceeding with an eleven-person jury in any murder

case—significantly, one where the defendant is facing

multiple life sentences, and where the defense did not

present any evidence—is questionable. Doubly so

where there was no inquiry into whether those eleven

jurors were tainted.9 No objectively reasonable lawyer

9 See J.A. 437 (arguing in Second Suppl. to Pet. for Post

Conviction Relief that “Trial counsel’s choosing to proceed with

an 11 juror panel, in and of itself, posed a great risk to Petitioner

by reducing the number of unanimous votes necessary to convict

him. Electing to proceed in the absence of critical information

that was readily available through voir dire of the panel elevated

that risk from strategic to blind.”).

42a

would allow his client to waive his right to a twelveperson jury in these circumstances without additional

investigation.

Additionally, Sweeney’s waiver was arguably not

knowing, as is required: As he argued to the district

court,“[w]hen [he] waived his right to a jury with

twelve members, he had no idea how Juror Number

4’s visit to the crime scene had affected that juror’s

perception of the case, what Juror Number 4 had told

the other jurors about that visit, or how extensively

Juror Number 4 had sought to influence other jurors

both before and after the court had learned of Juror

Number 4’s unauthorized visit,” J.A. 8, and, therefore,

“[w]ithout that information, the choice to waive [his]

right to a jury of twelve . . . could only be uninformed,”

J.A. 36–37.

Nunzio’s testimony at the postconviction review

hearing only confirms the deficiency of his

performance. He testified that he “[c]ertainly” had

concerns about what Juror No. 4 had seen at the

crime scene. J.A. 76. He also admitted that he did not

know what Juror No. 4 did at the scene, nor what the

witnesses Juror No. 4 saw were doing. J.A. 78. Yet

despite these concerns and lack of information, he did

not question Juror No. 4 to glean additional responses

on these issues. Nunzio also admitted that he

“[a]bsolutely” thought about concerns with the

decision to proceed with eleven jurors, reducing the

number needed to reach a unanimous decision. J.A.

94. His explanation for proceeding with eleven, rather

than moving for a mistrial, was that “[t]hings were

very good,” he “had made a lot of headway in the

courtroom,” and “[t]he jurors seemed to be receptive

as you watched them day after day. They were very

43a

attentive.” J.A. 90–93. He continued that “[t]here

were things that came out of the trial that [he and

Sweeney] both thought were very positive,” including

a theory elicited on cross-examination that implicated

Walls by challenging the angle of Sweeney’s position

and the bullet wound. J.A. 90–92. But Nunzio had put

on no evidence. And his alternative theory was

weakened by the testimony of other government

witnesses and the firearms examiner. It is

unreasonable for a defense attorney in a murder case

to believe that things “were very positive” where he

presented no witnesses nor evidence, no matter how

“receptive” or “attentive” the jurors seemed to be. J.A.

90–92.

Also at the postconviction review hearing, Nunzio

emphatically recalled that he did not believe that the

other eleven jurors were tainted, yet he testified

inaccurately as to other details, and equivocated on

other questions. He stated that “[m]emory serves me

that the jury was not tainted as to what [Juror No. 4]

said or did. . . . [T]here was no present-sense

impression at that time and even until today that the

jury was contaminated.” J.A. 112. But without having

asked any questions of the other jurors nor any

questions of Juror No. 4 regarding what he shared,

how he could he be so sure that the jury was not

contaminated? As Sweeney puts it, “Nunzio’s claimed

observations . . . were based on speculation.” Opening

Br. at 26. The certainty of Nunzio’s response is

undermined by other statements made at the hearing.

Nunzio recalled incorrectly what Juror No. 4 had

shared with the court about his crime scene visit,

stating, “If memory serves me, he drove by. I don’t

know if he conclusively said that there were the

44a

witness [sic]. I remember, he said he didn’t roll down

windows or anything and [the trial court] had elicited

this if memory serves me, but he just drove down the

street, and that’s all he did.” J.A. 77. None of this is

in the record, and, in fact, some is directly

controverted by the record. See J.A. 190 (Juror No. 4

went to “walk through the scene,” he “got out and

went by the scene,” and he saw “a couple of

witnesses”). After being presented with the jury note,

Nunzio corrected himself, stating, “He got there, got

out, looked, no real action and went on.” J.A. 77–78.

He then added, “I remember [the trial judge] asked

[Juror No. 4] extensively.” J.A. 78. This was certainly

not the case; instead, as discussed earlier, the judge

posed one open-ended directive and one question that

was cut off by Juror No. 4’s interruption. How could

Nunzio be so certain that the jury was not

contaminated if he was wrong about what Juror No.

4 had even done at the crime scene and what Juror

No. 4 had shared with the court and the parties?

His misremembering abounded elsewhere; Nunzio

testified that the other jurors were not in the

courtroom while the judge conversed with Juror No.

4, which was inaccurate and promptly corrected by

Sweeney’s postconviction counsel. See J.A. 83–84.

Later, when asked to confirm that Juror No. 4 “did

tell at least some jurors that he went to the scene” and

“did in fact have some conversation with the jury,”

Nunzio’s initial response was belied by the transcript,

at which point he stated that he would “defer to the

record.” J.A. 117–18. Nunzio’s testimony at the

postconviction review hearing cannot justify his

actions at trial.

45a

While we must give “a heavy measure of deference

to counsel’s judgments,” our task remains that “a

particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances.”

Strickland, 466 at 691. Here, giving Nunzio due

deference and in light of all the circumstances, it was

unreasonable for him to fail to investigate into the

jury taint and instead decide, in a vacuum, not to

move for a mistrial but rather to proceed with eleven

jurors.10

As for the second Strickland prong, “the concept of

prejudice is defined in different ways depending on

the context in which it appears.” Weaver v.

Massachusetts, 582 U.S. 286, 300 (2017). “In the

10 It bears brief mention that Nunzio made other errors,

including failing to object to Juror No. 4 being sent back into the

jury lounge with others during the recess, and failing to request

a curative instruction for the remaining eleven jurors when they

resumed their deliberations. See J.A. 36, 435.

Sweeney had raised several other claims before the

Maryland Circuit Court regarding Nunzio’s ineffective

assistance of counsel, which he has since abandoned. These were

regarding Nunzio’s failure to impeach a government witness,

failure to object to government witnesses reading prior

statements into evidence, failure to object or move to strike

testimony regarding Sweeney’s prior bad acts, failure to file a

motion in limine to prevent admission of a weapon that was

irrelevant and prejudicial, failure to object to the government’s

improper remarks during opening and closing arguments,

misstatement of the government’s burden of proof during his

closing argument, J.A. 401–429 (Suppl. to Pet. for Post

Conviction Relief), and failure to request voir dire of the jury

regarding grand jury transcripts that were sent back to the jury

during their deliberations, J.A. 437–441 (Second Suppl. to Pet.

for Post Conviction Relief).

46a

ordinary Strickland case, prejudice means ‘a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different.’” Id. (citing Strickland, 466

U.S. at 694). But in deciding Strickland itself, the

Supreme Court stated that it was not “establish[ing]

mechanical rules,” and “the ultimate focus of inquiry

must be on the fundamental fairness of the

proceeding whose result is being challenged.”

Strickland, 466 U.S. at 696. That Court made clear

that “[i]n every case the court should be concerned

with whether . . . the result of the particular

proceeding is unreliable because of a breakdown in

the adversarial process that our system counts on to

produce just results.” Id. That is squarely what

happened here: a breakdown of the adversarial

process.

Nunzio rendered representation to Sweeney that

was far below what is objectively reasonable and, as a

result, Sweeney was convicted by an eleven-member

jury that might have been wholly prejudiced by

information from Juror No. 4’s crime scene visit. This

deprived Sweeney of his Sixth Amendment right to

the effective assistance of counsel, further

undermining his right to a fair trial.

*

*

*

The breakdown of the judicial process—from Juror

No. 4, to the trial court judge, to defense counsel

Nunzio—deprived Sweeney of his constitutional right

to a trial before a fair and impartial jury based solely

on the evidence presented in the courtroom.

There can be no confidence that Sweeney was tried

by indifferent jurors who were unprejudiced by

47a

extraneous information. Due to the judge’s and

Nunzio’s failings, the record only reflects that the

eleven jurors who ultimately convicted Sweeney were

told something about Juror No. 4’s visit to the crime

scene. But not much more. There can also be no

confidence that the eleven-person jury found Sweeney

guilty based on the evidence developed at trial, as

opposed to the unknown information conveyed by

Juror No. 4. In this way, the burden of proof was

compromised, with any reasonable doubt created by

the eyewitness testimony potentially resolved by

Juror No. 4’s visit and his discussions with the other

jurors. Furthermore, the unknown information

conveyed by Juror No. 4 could have been incorrect and

was never tested by examination at trial. For

example, as Sweeney explained to the district court,

because Juror No. 4’s crime scene visit was during a

different month than that during which the shooting

happened, it could have “skewed Juror No. 4’s

perception of the lighting and vantage points issues

that were being contested by the defense at trial.”

Opening Br. at 23; J.A. 31–32. Juror No. 4 may have

relayed what he did not know to be flawed

information about the evening light to the other

jurors, but “the record is barren” due to the judge’s

and Nunzio’s failure to ask adequate questions. J.A.

32. That failure also means that they gathered no

information about how government “witnesses

appeared to Juror Number 4 outside of the courtroom,

what they may have been doing, or how Juror

Number 4 characterized his observations of these

witnesses to his fellow jurors,” which he could have

used to either call into question or bolster their

credibility. Id. The court and the parties then—and

we today—are without any such detail. Without this

48a

detail, and without much information at all about the

scope and impact of Juror No. 4’s visit to the crime

scene on the rest of the jury, Sweeney’s conviction

cannot stand as fair.

VI.

We must next determine the warranted remedy.

“The Supreme Court has [ ] recognized that certain

structural errors are so severe as to render a trial

inherently unfair and thus, should not be subject to

harmless error analysis.” Sherman, 89 F.3d at 1138.

These errors involve “structural defects in the

constitution of the trial mechanism” such that

“[w]ithout these basic protections, a criminal trial

cannot reliably serve its function as a vehicle for

determination of guilt or innocence, and no criminal

punishment may be regarded as fundamentally fair.”

Arizona v. Fulminante, 499 U.S. 279, 309–10 (citation

and quotation omitted). The Supreme Court has

identified “at least three broad rationales” for

deeming an error structural. Weaver, 582 U.S. at 295.

First, an error may be structural “if the right at

issue is not designed to protect the defendant from

erroneous conviction but instead protects some other

interest.” Id. This is present here: Sweeney’s right to

a trial by an impartial jury and his confrontation

right, guaranteed by the Sixth and Fourteenth

Amendments, are based on founding-era principles

that a defendant must be tried by an indifferent jury

of his peers based only on the evidence presented.

Second, “an error has been deemed structural if

the effects of the error are simply too hard to

measure,” or the “effect of the violation cannot be

ascertained.” Id. (citation and quotation omitted).

49a

This, too, is present here. The trial court judge and

Nunzio’s significant shortcomings made ascertaining

the effects of their errors nearly impossible. Because

they failed to probe into whether any of the remaining

eleven members of the jury were tainted, one cannot

discern the effect of any such potential taint: e.g.,

whether any potential taint did in fact lead to

Sweeney’s conviction, whether or how the outcome

might have differed had more than just Juror No. 4

been excused, whether or how the outcome might

have differed following a mistrial. Stated differently,

the inability to prove that the eleven-member jury

was in fact tainted and whether that taint led to

Sweeney’s conviction is part and parcel of the fact that

both the judge and Nunzio failed to make an inquiry

of those jurors in the first place. Cf. J.A. 24 (“[T]he

court’s failure to voir dire the jurors in the required

manner has denied Petitioner the opportunity to

determine the extent of those injuries.”). And as this

Court has explained, “[w]e simply cannot know what

affect a twelfth juror might have had on jury

deliberations. Attempting to determine this would

involve pure speculation.” United States v. Cubelo,

343 F.3d 273, 281 (4th Cir. 2003).

Third, “an error has been deemed structural if the

error always results in fundamental unfairness,”

which includes, for example, complete denial of

counsel to an indigent defendant, or a judge’s failure

to give a reasonable doubt instruction. Weaver, 582

U.S. at 296. We need not discuss this third rationale.

In its analysis, the Supreme Court made “one point [ ]

critical”: that this third category is not necessary for

an error to be deemed structural. Id. It also explained

that “[i]n a particular case, more than one of these

50a

rationales may be part of the explanation for why an

error is deemed to be structural.” Id. That is precisely

what is before us now: both the first and second

rationales capture the failings in this case, which are

thus properly considered structural errors.

The case before us is quite different from Sherman

v. Smith, where this Court applied harmless error

review. 89 F.3d 1134. To begin, the errors before us

now are the confluence of extraordinary failings from

juror, to judge, to attorney, rather than the single

error of a juror’s unauthorized visit at issue in

Sherman. But even comparing the two for their

shared flaw, the case cannot be guiding. In Sherman,

after being convicted, the defendant moved for a new

trial based on allegations of a juror’s unauthorized

visit to the crime scene. Id. at 1136. The trial judge

held an evidentiary hearing and ultimately denied

the defendant’s motion. Id. On appeal, the defendant

argued that the juror’s unauthorized visit constituted

structural error because it defied harmless error

analysis. See id. at 1138.

This Court found that “we cannot conclude that

one juror’s unauthorized site visit is a structural error

that renders every trial inherently unfair.” Id. at

1140; see also id. at 1138. However, the Supreme

Court has since clearly stated that “[a]n error can

count as structural even if the error does not lead to

fundamental unfairness in every case.” Weaver, 582

U.S. at 296; see also McCoy v. Louisiana, 584 U.S.

414, 427 (2018) (finding an error structural “[u]nder

at least the first two rationales”). As explained above,

there are two additional rationales that can deem an

error structural—both of which are met in the present

case.

51a

We also found that the issue in Sherman was

“amenable to the traditional tools of harmless error

analysis.” 89 F.3d at 1140. There, the trial judge held

a post-trial hearing during which the court elicited

details about the juror’s visit: why he went to the

crime scene, what he saw, what he did. We explained

that when conducting such an inquiry about a juror’s

unauthorized visit, “a court can look to the nature and

extent of the juror’s activity and assess how that

activity fit into the context of the evidence presented

at trial,” as well as “consider whether the juror

learned information that was merely cumulative of

other evidence or whether he unearthed new

information not previously presented to the jury.” Id.

at 1139–40. That is exactly what the trial court judge

did in Sherman, such that the effect of the error could

be assessed in the context of other evidence presented

at trial. See id. at 1138. Far from the case here.

Instead, neither the trial court judge nor Nunzio

sufficiently probed into any of the aforementioned

considerations of Juror No. 4 nor the other jurors, and

as a result, the “effect of the violation cannot be

ascertained” because of the nature of the error itself.

Weaver, 582 U.S. at 295 (citation and quotation

omitted). Our prior decision in Sherman is inapposite

to the case at hand for multiple reasons and therefore

does not limit our inquiry to harmless error. Instead,

for the reasons explained above, the myriad issues in

Sweeney’s trial constitute structural error.

Because of the structural error at issue in this case

that

extends

far

beyond

just

Nunzio’s

ineffectiveness—instead, from juror, to judge, to

attorney, this error infected the entire judicial process

and Sweeney’s right to a fair trial—and because “[t]he

52a

Sixth Amendment requires more than appellate

speculation about a hypothetical jury’s action,”

Sullivan v. Louisiana, 508 U.S. 275, 280 (1993),

Sweeney is entitled to a new trial.

VII.

For the foregoing reasons, we reverse the district

court’s denial of Sweeney’s petition and remand with

instructions to issue a conditional order of release

unless a new trial is completed within a period

determined at the district court’s discretion.

REVERSED AND REMANDED WITH

INSTRUCTIONS

53a

QUATTLEBAUM, Circuit Judge, dissenting:

Jeremiah Antoine Sweeney’s appeal involves one,

and only one, claim. He argues the district court

improperly denied his Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”) claim that the

Maryland postconviction relief (“PCR”) court

misapplied Supreme Court law in denying him

ineffective assistance of counsel relief. On that claim,

Sweeney contends his lawyer did not do enough to

rule out the possibility that—contrary to what he told

the court and what the other jurors said in their

note—the juror who went to the crime scene

contaminated one or more of the other jurors with

information about his visit. Because of that, Sweeney

claims the Maryland PCR court improperly denied his

ineffective assistance of counsel claim. But he offered

no evidence of any contamination. Nor did Sweeney

offer any evidence, let alone an argument, that if more

investigation had been done, he would not still have

been convicted. So, on the only claim properly before

us—whether the state court misapplied the law in

addressing Sweeney’s ineffective assistance of

counsel claim—this appeal should be straightforward.

The Maryland PCR court did not unreasonably apply

clearly established law when it held that Sweeney’s

counsel was not deficient. And Sweeney did not show

prejudice. Thus, Sweeney’s ineffective assistance

claim fails.

The majority’s treatment of that claim is

perplexing. It does not address it at all until page 33

of its 46-page unpublished opinion. And there, while

concluding that Sweeney’s lawyer, Justin Nunzio,

acted unreasonably, the majority never cites—and

certainly never applies—AEDPA. For example, it

54a

never holds that no fairminded jurist could rule the

way the state PCR court did based on clearly

established Supreme Court law. Likewise, it never

holds that had Sweeney’s lawyer measured up to the

majority’s standards, there is a reasonable probability

that the trial would have turned out differently. The

majority just sidesteps the only claim Sweeney

actually raised in state court, presented to the district

court, and appealed.

Instead,

ignoring

AEDPA’s

exhaustion

requirements and governing principles of party

presentation, the majority raises on its own, and then

decides the case on, a totally different ground from

what Sweeney argued to the state courts, to the

district court or to us on appeal. According to the

majority, the combination of the juror’s crime scene

visit plus the failure of both the trial judge and

Sweeney’s lawyer to protect against contamination

structurally violated Sweeney’s Sixth Amendment

right to an impartial jury. Under that reasoning, the

majority concludes that it does not have to apply

AEDPA. Nor does it have to find prejudice. Things

were so unfair, the majority says, that Sweeney gets

a new trial.

What is the majority’s justification for deciding the

appeal on issues neither Sweeney nor his lawyer

raised in his state court trial, his state court appeal,

his state court post-conviction relief proceedings, his

federal habeas claim before the district court or his

appeal to us and that none of those prior courts

addressed either? To the majority, it’s “the special

circumstances of this case.” Maj. Op at 17.

That alone is a problem. What’s the standard for

this? It seems purely subjective. Like beauty, special

55a

circumstances are in the eye of the beholder.

Employing amorphous concepts like “the special

circumstances of this case” permits judges to

disregard binding precedent to reach preferred

outcomes. And it gives no guidance to trial judges or

litigants. How are they supposed to know when to

follow the law or when the circumstances are special

enough to deviate?

But more than that, the majority’s approach

undermines our ordered system of justice. That

system requires that we follow AEDPA’s statutory

requirements and Supreme Court precedent. We are

not free to scour the record for issues that we think

are important when the parties never raised them

below and then dispense our subjective views of

justice. That, however, is exactly what the majority

does. The moment this decision is issued, it is

untenable under binding Supreme Court precedent.1

See United States v. Banks, 29 F.4th 168, 175 (4th Cir.

2022) (“Authority is untenable if its reasoning or

1 We

should not be any less alarmed by the majority’s

opinion just because it is unpublished. While that of course

means it has no precedential value, see Collins v. Pond Creek

Mining Co., 468 F.3d 213, 219 (4th Cir. 2006), lawyers and

litigants sometimes cite to unpublished opinions. See Melissa H.

Weresh, The Unpublished, Non-Precedential Decision: An

Uncomfortable Legality?, 3 J. App. Prac. & Process 175, 175

(2001). As Aesop taught long ago in The Wolf in Sheep’s Clothing,

things can be more dangerous than they appear. Aesop, The Wolf

in Sheep’s Clothing, in Aesop’s Fables, Library of Congress,

https://perma.cc/JDE5-NSJ4. Just as wolves are dangerous even

in sheep’s clothing, deviating from requirements imposed by

Congress, the Supreme Court and this Court is problematic,

even in an unpublished opinion.

56a

holding is inconsistent with a Supreme Court

decision.”).

To explain my dissent, I first describe how current

law requires that we affirm the district court’s

dismissal of Sweeney’s AEDPA claim arguing that the

Maryland PCR court misapplied Supreme Court law.

After that, I point out my disagreements with the

majority’s conclusions about Sweeney’s counsel before

explaining why the majority’s decision to raise and

pursue claims not raised below or here, or even to the

Maryland courts, is improper.

I.

A. The Trial

A Maryland jury convicted Jeremiah Antoine

Sweeney of second-degree murder, use of a handgun

in the commission of a felony or crime of violence,

attempted second-degree murder and attempted firstdegree murder. The parties did not submit a complete

transcript of the trial court proceedings, but the Court

of Special Appeals of Maryland found these facts:

On April 10, 2010, the events which led to

Robert Anderson’s death occurred in the 2100

block of East Marshall Place in Landover,

Maryland. That afternoon, [Sweeney] got into

an argument with Eric McDonald and accused

him of having stolen some marijuana which

belonged to [Sweeney]. McDonald denied

having stolen anything from [Sweeney] and the

two exchanged some profanities. Some time

later, [Sweeney] walked to his house, and then

returned to where McDonald was visiting with

friends. [Sweeney] was holding a gun clip and

announced: “I got my piece,” referring to a

57a

firearm. Shortly thereafter, [they] yelled

threats at each other for approximately thirty

minutes, during which [Sweeney] proclaimed:

“I’m going to kill somebody.” The heated

exchange happened in the area around house

#2108 on the street, where David Walls lived.

Upon seeing that [Sweeney] had a handgun,

Walls asked him to leave. [Sweeney] then

turned to walk up the street, inserting the clip

into his gun as he did so. [Sweeney] and

McDonald had continued to yell at each other,

and when [Sweeney] reached the area in front

of his house, he dared McDonald to “cross the

gun line.”

Walls then implored the young men in front of

his house, including Anderson, to come inside.

At first the group did not comply, but when

they did begin to make their way toward

Walls’s house, [Sweeney] fired his gun once

into the air, and then fired approximately five

or six times in the direction of McDonald and

the other young men. Anderson was struck by

a bullet in the back of the head and fell to the

ground; neighbors attempted to render aid.

[Sweeney] then paced around the area in front

of his house before getting into his red Cadillac

and driving away.

J.A. 356–57. About an hour into the jury’s

deliberations, the court received a note: “Juror

Number 4 went to the crime scene yesterday to walk

through the scene and a couple of witnesses were

there. Is this okay? There was no interaction.” J.A.

190 (cleaned up). The court summoned Juror Number

4 and asked him what happened. He explained:

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I just got out and went by the scene, just

basically the crime scene, Your Honor. I just

wanted to get a visual because I know—I see

topographical views all the time and I know

that that does not give an accurate—well,

there’s a better way to get an accurate view,

which is to see a visual, an actual visual. And

that’s all I did. I spoke to no one.

As a matter of fact, I spoke to no one, and no

one saw me. But I did see, you know, just a

couple of witnesses that were, you know, that

were there.

J.A. 190–91. The court asked if this would affect his

verdict. He answered no. Sweeney’s counsel, Justin

Nunzio, asked if any of the other jurors knew that he

visited the scene. Juror Number 4 replied yes, “[b]ut

they stopped me, too, because they thought that I

should stop talking and I present what I just said to

you all.” J.A. 191. Nunzio and the prosecutor inquired

if the juror could limit his verdict to the evidence

presented at trial without considering the crime

scene. He replied, “I would have no problem with

basing my decision, and they would have no problem

basing their decision, off of the evidence which was

presented in the case.” J.A. 192.

Counsel then conferred with the court. Nunzio

expressed concern that the juror “can’t help but tell

them what he saw.” J.A. 192. The prosecutor

suggested having the Sheriff’s Department arrange

for the entire jury to visit the neighborhood. The court

expressed concern about the feasibility of this option

but allowed Nunzio to discuss it with Sweeney.

Nunzio explained that Sweeney’s preference was for

the jury to visit the scene, and the prosecutor agreed

59a

that was “the best option.” J.A. 194. The court asked

what Sweeney wanted to do if the visit could not be

arranged. Nunzio answered that he “would probably

just strike Juror Number 4.” J.A. 195. The prosecutor

stated that he would not object to that if a visit was

not feasible.

The court summoned Juror Number 4 back to the

bench and instructed him “not to discuss anything

that happened during your tour of the crime scene”

while it considered the matter further. J.A. 196. The

court then dismissed the jury “to the jury lounge.”2

J.A. 196.

After the jury left the courtroom, the court

continued to confer with counsel about Juror Number

4 and the other jurors:

THE COURT: They can talk. I don’t know what

else to do.

MR. NUNZIO: He can’t be part of the process.

THE COURT: I told him not to be sharing any

of these experiences.

MR. NUNZIO: Absolutely right. While they are

there they might as well do something.

[THE PROSECUTOR]: Instead of waiting

around.

THE COURT: Unless I put them in 12 different

rooms. Well, I have one more thing to do and I

will talk to the sheriff.

J.A. 196–97.

2 This is apparently distinct from the jury room.

60a

After about a one-hour recess, the court returned

to the bench and announced that a visit to the scene

was not feasible. The court then had the following

colloquy with Sweeney:

THE COURT: . . . It’s my understanding, from

your lawyer, that you’re agreeable to us

excusing Juror Number 4 and going forward

with the remaining 11 jurors and to let them

make their decision.

Is that true?

[SWEENEY]: Yes.

THE COURT: Do you have any questions?

[SWEENEY]: No, sir.

THE COURT: Have you thoroughly discussed

this with your lawyer? Is that what you want

to do?

[SWEENEY]: Yes.

THE COURT: Because you have a right to have

12 jurors decide your innocence or guilt, and if

you give it up then that’s exactly what we’re

going to do and we’ll let 11 people decide your

fate.

All right?

[SWEENEY]3: Yes, sir.

J.A. 197, 201.

3

The transcript attributes this statement to Juror

Number 4, but the parties agree that this is a transcription

error.

61a

The court then excused Juror Number 4. The jury

deliberated for two more hours before returning its

guilty verdict.

Nunzio moved for a new trial, arguing, among

other things, that the juror misconduct resulted in a

miscarriage of justice because Sweeney was “left in a

position to choose between a mistrial, having all the

jurors visit the crime scene (after the close of the

evidence) and going forward with 11 jurors.” J.A. 294.

After the trial court denied that motion, Sweeney

appealed. But he did not raise the juror misconduct

issue. The Maryland Court of Special Appeals

affirmed Sweeney’s convictions.

B. State Habeas Proceedings

Sweeney petitioned pro se for postconviction relief

in Maryland state court, arguing that Nunzio was

ineffective for (1) failing to object to Juror Number 4’s

being allowed back into the deliberation room after he

told the court he had visited the crime scene, (2)

“creat[ing] a conflict of interest when Counsel decided

to strike Juror #4 without petitioner’s consent,” and

(3) “fail[ing] to explain petitioners [sic] his rights

regarding his rights [sic] to 12 jurors or a declaration

of a mistrial.” J.A. 382. Sweeney subsequently

obtained PCR counsel, who argued that Nunzio was

ineffective “by choosing to proceed with an eleven

member jury without first voir diring the remaining

jurors regarding Juror Number 4’s independent

investigation of the crime scene or failing to request a

mistrial.” J.A. 432. PCR counsel emphasized that

Nunzio’s failure to insist on an examination of the

remaining jurors meant that he did not know

precisely what the other jurors knew about the crime

scene visit. And counsel pointed out that Juror

62a

Number 4 was around the other jurors for nearly an

hour while the court researched whether it could take

the other jurors to the crime scene.

In advancing these arguments, PCR counsel relied

on a Maryland state court decision called Nash v.

State, 94 A.3d 23 (Md. 2014). PCR counsel recognized

that Nash required a motion for a mistrial before voir

dire was required. But he argued Nunzio should have

requested to voir dire the remaining jurors under

Nash anyway. According to PCR counsel, failing to do

so meant Nunzio “made the decision to move forward

with an 11 member jury, essentially in a vacuum,

without the information necessary to determine if

that was sound strategy.” J.A. 437.

The state PCR court held an evidentiary hearing

at which Nunzio was the only witness who testified.

Nunzio explained that he was “[a]bsolutely”

concerned about Juror Number 4’s visit to the crime

scene both because the juror violated a clear

instruction and because one of the issues at trial was

the layout of the scene. J.A. 75–76. Nunzio recalled

that the court “extensively” examined what Juror

Number 4 did at the scene. J.A. 78.

Nunzio testified that the three options available

were to have the jury visit the scene, strike Juror

Number 4 and proceed with eleven jurors, or move for

a mistrial. Nunzio discussed these options with

Sweeney. Although Nunzio had worried about the

other eleven jurors talking with Juror Number 4

during the recess, he thought they were in a common

room but not deliberating. The state PCR court then

discussed the parties’ interpretation of the trial

transcript. The parties informed the state PCR court

that all twelve jurors were in the courtroom while the

63a

trial judge questioned Juror Number 4 “with the

husher on.” J.A. 85. The state PCR court confirmed

that the trial judge did not instruct the jury not to

deliberate but that they were sent to the lounge,

which differed from the room in which the jury

deliberated.

Nunzio then explained how he made the decision

to strike Juror Number 4. He testified that he

informed Sweeney that he would have been “more

than happy to” move for a mistrial but he “defer[red]

to” Sweeney. J.A. 90. He and Sweeney reached

“almost a collective” agreement that Juror Number 4

could no longer serve on the jury, but they did not

want to risk the progress they had made with this

jury. J.A. 90–91. Nunzio believed that the trial had

gone “very good,” that “[t]he jurors seemed to be very

receptive” to the defense theory and that favorable

testimony had been introduced about the position of

various people at the scene. J.A. 90–91. Nunzio was

particularly concerned that a second trial might yield

less favorable testimony from some witnesses. He

reiterated that he was not concerned about

proceeding with eleven jurors because “we were

making headway inside the courtroom,” highlighting

his impeachment of some of the State’s witnesses. J.A.

94.

On cross-examination, Nunzio agreed when the

State’s attorney asked, “there was nothing that [Juror

Number 4] said that would lead you to believe that his

observations had in any way tainted the other jury

members, was there?” J.A. 111. Nunzio believed that

the trial judge had sufficiently questioned Juror

Number 4 regarding his discussions with the other

jurors. He reiterated that he had “no present-sense

64a

impression at that time and even until today that the

jury was contaminated.” J.A. 112.

The state PCR court denied Sweeney’s petition for

post-conviction relief. In rejecting Sweeney’s claim,

the court explained:

Nash v. State . . . establishes two circumstances

where the trial judge has a duty to conduct voir

dire sua sponte, when a party moves for a

mistrial based on juror misconduct: (1) when a

juror’s actions constitute gross misconduct

sufficient to raise a presumption of prejudice

that must be rebutted before a mistrial motion

is denied; and (2) when a material and relevant

fact must be resolved before a trial judge may

determine whether the presumption of

prejudice attached. First of all, the Defense did

not move for a mistrial, but instead decided to

move forward with eleven jurors. Secondly,

before deciding to proceed, Trial Counsel

discussed options with the client on how to

proceed. Petitioner has failed to produce

evidence that Trial Counsel included the option

to voir dire sua sponte the remaining eleven

jurors, failing to meet his burden. Defense

essentially waived the issue to voir dire sua

sponte the remaining eleven jurors when he

conferred with his client on how to proceed and

did so with the eleven jurors. Therefore, the

Court feels that the Defense failed to meet its

burden that but for the jury consisting of eleven

jurors, the Petitioner would not have been

convicted.

J.A. 452–53.

65a

Sweeney then applied for leave to appeal the

denial of his state petition. He asserted that the state

“court’s ruling fail[ed] to reckon with the claim as

raised in the petition and argued at the hearing.” J.A.

464. Sweeney argued that Nunzio should have

“move[d] for a mistrial or request[ed] that the court

voir dire the rest of the jury to ascertain precisely

what Juror Number 4 told them and to what extent

they may have been influenced by this information,

before deciding whether to proceed with an 11

member jury.” J.A. 465. The failure to conduct this

inquiry meant that Nunzio advised Sweeney “in a

vacuum, without the information necessary to

determine if that was sound strategy.” J.A. 466. The

state court denied Sweeney’s application for leave to

appeal in a one-sentence order.

C. Federal Habeas Proceedings

Next, Sweeney petitioned for federal habeas relief

under 28 U.S.C. § 2254(d). In that petition, Sweeney

emphasized that Nunzio “failed to determine the

extent to which Juror Number 4 had been tainted by

his visit to the crime scene and then had tainted the

other eleven jurors during the time Juror Number 4

had spent deliberating with those jurors, and when

[he] did not object to the court’s failure to make that

determination.” J.A. 9. According to Sweeney,

Nunzio’s error caused Sweeney “to have his case

determined by a jury that had been tainted by

information that had been provided by Juror Number

4 . . . and also to waive his right to a twelve person

jury in a manner that was not knowing as required by

clearly established law.” J.A. 9. Abandoning his claim

that Nunzio should have sought to voir dire the

remaining jurors under Nash, Sweeney offered a new

66a

justification for his position. This time, Sweeney

relied on our Barnes v. Joyner, 751 F.3d 229 (4th Cir.

2014) decision, where we applied Remmer v. United

States, 350 U.S. 377 (1956). And Sweeney also

claimed that under Barnes, he did not have to show a

reasonable probability of a different result to

establish prejudice. Instead, he argued he only had to

show that counsel’s deficient performance had a

substantial and injurious effect on his right to a trial

by an unbiased jury.

The district court denied Sweeney’s petition. It

cited our unpublished decision in Daniel v. West

Virginia, No. 97-6806, 1999 WL 713865 (4th Cir. Sept.

14, 1999) to conclude that Sweeney was not entitled

to a presumption of prejudice. The court found that

counsel was not ineffective because he “offered

[Sweeney] the option for the ultimate remedy . . . a

mistrial, but Sweeney voluntarily waived that

remedy when he elected to proceed with an elevenmember jury.” J.A. 495. It also noted that moving for

a mistrial is normally a strategic decision entrusted

to counsel.

While the court recognized that “Sweeney argue[d]

that his decision to waive the 12-person jury was not

knowing, voluntary or intelligent,” the court found

this contention procedurally defaulted if raised as a

separate claim. J.A. 495 n.6 (cleaned up). To the

extent this argument was meant only to show

prejudice, the court noted that “Sweeney made the

decision to waive the 12-person jury.” J.A. 495 n.6.

The court also found that “any decision made by

counsel is entitled to deference, as counsel testified

that it was his impression from Juror Number Four’s

testimony that the remaining jury members were not

67a

tainted.” J.A. 495 n.6. And while Sweeney alleged

that “he was prejudiced because the jurors may have

discussed the crime scene visit during the recess

where Juror Number 4 remained with other members

of the jury,” the court found that no evidence

supported this assertion. J.A. 495 n.7. Finally, the

court held that Sweeney could not establish prejudice

because he “failed to prove that he would not have

been convicted if the decision had been made by a

twelve-person jury.” J.A. 496.

This appeal followed.4

II.

A. Ineffective Assistance of Counsel

Before addressing the majority’s errors, I will

analyze Sweeney’s claim under our law as I see it. In

considering Sweeney’s appeal, it is important to

remember what he asks us to do. His only claim is

ineffective assistance of counsel. To that end,

Sweeney contends the state court unreasonably

applied Strickland v. Washington, 466 U.S. 668 (1984)

to his case. His overriding argument is that his trial

counsel rendered deficient performance when he did

not request a Remmer hearing to voir dire the

remaining eleven jurors about any information Juror

Number 4 might have passed on about his crime scene

visit. He contends that when a jury’s integrity is

4 The district court denied Sweeney’s habeas petition in a

final order disposing of all claims. Sweeney timely noticed this

appeal, filing an informal brief in support of his request for

certificate of appealability in the absence of one from the district

court. We granted the certificate on June 26, 2023. So, we have

jurisdiction under 28 U.S.C. §§ 1292 and 2253.

68a

questioned—like it allegedly was when Juror Number

4 told the other jurors that he visited the crime

scene—Remmer requires a hearing “to determine

from the facts whether or not communication with the

juror by the outsider and the events that followed

were prejudicial and therefore, harmful to the

petitioner.” Remmer, 350 U.S. at 378.

Sweeney claims the state PCR court improperly

applied Strickland by not citing Remmer. Analyzing

Maryland’s Nash decision rather than Remmer,

Sweeney insists, was improper because “[t]he state

case (Nash) that the Maryland court cited did not

substitute for Remmer.” Opening Br. 18. He claims

the state PCR court’s misapplication of Strickland

persisted when it held that the trial court was not

required to voir dire all remaining jurors because

Sweeney failed to move for a mistrial and when it

found that Sweeney waived his right to seek a

mistrial when he elected to strike Juror Number 4

and proceed with an eleven-person jury. Even though

he was given the option for a new trial, Sweeney

complains that trial counsel’s failure to move under

Remmer to voir dire the remaining jurors deprived

him of the proper information to make the “right”

choice. Last, Sweeney argues the state PCR court

erred in concluding that he had not shown a

reasonable probability of a different result. Instead,

he insists he need only show that his trial counsel’s

performance caused substantial and injurious effect

on his right to a trial by an unbiased jury.

1. Standard of Review

In advancing this claim, Sweeney faces a

formidable standard of review. In fact, three

standards shape our review of this case. They relate

69a

to (1) the district court; (2) the state court; and (3)

ineffective assistance of counsel claims.

First, in reviewing a district court’s application of

the standards of 28 U.S.C. § 2254(d), “we review the

district court’s legal conclusions de novo and findings

of fact for clear error.” Wolfe v. Clarke, 691 F.3d 410,

423 (4th Cir. 2012) (quotation marks and citation

omitted).

Second, our authority to collaterally review a state

court adjudication is strictly circumscribed by

AEDPA. See Barnes v. Joyner, 751 F.3d 229, 238 (4th

Cir. 2014). Under AEDPA, we may grant habeas relief

on a claim that has been previously “adjudicated on

the merits”5 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).6 As the Supreme Court has explained:

5

We lack power to review habeas claims that are not

reviewed by state courts. “[A] federal habeas court may not

review unexhausted claims that would be treated as

procedurally barred by state courts—absent cause and prejudice

or a fundamental miscarriage of justice.” Longworth v. Ozmint,

377 F.3d 437, 447–48 (4th Cir. 2004); see also Horner v. Nines,

995 F.3d 185, 208 (4th Cir. 2021) (denying habeas relief for

unexhausted, procedurally defaulted claims).

6 § 2254(d)(2) also permits claims that “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.”

Neither Sweeney nor the majority argues this prong is relevant

to this case.

70a

[A] state-court decision can involve an

“unreasonable application” of [the Supreme]

Court’s clearly established precedent in two

ways. First, a state-court decision involves an

unreasonable application . . . if the state court

identifies the correct governing legal rule . . .

but unreasonably applies it to the facts of the

particular state prisoner’s case. Second . . . if

the state court either unreasonably extends a

legal principle from [the Supreme Court’s]

precedent to a new context where it should not

apply or unreasonably refuses to extend that

principle to a new context where it should

apply.

Williams v. Taylor, 529 U.S. 362, 407 (2000)

(O’Connor, J., delivering the majority opinion with

respect to Part II).

But the bar is high. The state court’s application

of that law must be “‘objectively unreasonable,’ not

simply incorrect.” Owens v. Stirling, 967 F.3d 396,

411 (4th Cir. 2020) (quoting Barnes, 751 F.3d at 238–

39). Indeed, “[a] state court’s determination that a

claim lacks merit precludes federal habeas relief so

long as ‘fairminded jurists could disagree’ on the

correctness of the state court’s decision.” Harrington

v. Richter, 562 U.S. 86, 101 (2011) (quoting

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

AEDPA creates such an exacting standard

because our review involves the sovereignty of the

states. “Where a state court has previously ruled on

the alleged wrongful conviction, as has happened in

this case, concerns of comity and federalism ‘reach

their apex.’” Crockett v. Clarke, 35 F.4th 231, 241 (4th

Cir. 2022) (quoting Valentino v. Clarke, 972 F.3d 560,

71a

575 (4th Cir. 2020)). Thus, the Supreme Court has

emphasized that habeas relief is not an opportunity

for federal courts to look over the shoulder of state

courts. “Section 2254(d) reflects the view that habeas

corpus is a guard against extreme malfunctions in the

state criminal justice systems, not a substitute for

ordinary

error

correction

through

appeal.”

Harrington, 562 U.S. at 102–03 (quotation marks and

citation omitted). The Supreme Court has stated, “[i]t

bears repeating that even a strong case for relief does

not mean the state court’s contrary conclusion was

unreasonable.” Id. at 102. It is hard to overstate the

difficulty of the burden that must be met. As the

Supreme Court explained: “If this standard is difficult

to meet, that is because it was meant to be.” Id.

Third, Sweeney brings an ineffective assistance of

counsel claim under Strickland. There, the Supreme

Court reaffirmed that the Sixth Amendment right to

counsel “is the right to the effective assistance of

counsel.” Strickland, 466 U.S. at 686 (quoting

McMann v. Richardson, 397 U.S. 759, 771 & n.14

(1970) (cleaned up)). Strickland set forth a two-prong

test governing ineffective assistance of counsel

claims. A petitioner must show that (1) his counsel’s

performance was deficient and (2) counsel’s deficient

performance prejudiced his defense. Id. at 687.

To prove the first prong, the petitioner must

demonstrate “that counsel made errors so serious that

counsel was not functioning as the ‘counsel’

guaranteed [him] by the Sixth Amendment.” Id.

“Judicial scrutiny of counsel’s performance must be

highly deferential.” Id. at 689. “The critical question

is whether an attorney’s representation amounted to

incompetence under prevailing professional norms,

72a

not whether it deviated from best practices or most

common custom.” Winston v. Pearson, 683 F.3d 489,

504 (4th Cir. 2012) (quotation marks and citation

omitted). And “strategic choices made after thorough

investigation of law and facts relevant to plausible

options are virtually unchallengeable.” Strickland,

466 U.S. at 690. Even “strategic choices made after

less than complete investigation are reasonable

precisely to the extent that reasonable professional

judgments support the limitations on investigation.”

Id. at 690–91.

To prove the second prong, the petitioner must

show “that counsel’s errors were so serious as to

deprive [him] of a fair trial, a trial whose result is

reliable.” Id. at 687. “It is not enough for the

[petitioner] to show that the errors had some

conceivable effect on the outcome of the proceeding,”

as “[v]irtually every act or omission of counsel would

meet that test.” Id. at 693. And “not every error that

conceivably could have influenced the outcome

undermines the reliability of the result of the

proceeding.” Id. “Instead, Strickland asks whether it

is ‘reasonably likely’ the result would have been

different.” Harrington, 562 U.S. at 111–12 (quoting

Strickland, 466 U.S. at 696). “This does not require a

showing that counsel’s actions ‘more likely than not

altered the outcome,’ but the difference between

Strickland’s prejudice standard and a more-probablethan-not standard is slight and matters ‘only in the

rarest case.’” Id. (quoting Strickland, 466 U.S. at 693,

697). Ultimately, “[t]he likelihood of a different result

must be substantial, not just conceivable.” Id. at 112.

But Sweeney’s appeal involves not just a claim

that trial counsel’s assistance was ineffective. It

73a

involves a claim that the state PCR court misapplied

Strickland. “Establishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult.” Id. at 105. “AEDPA

and Strickland thus provide ‘dual and overlapping’

lenses of deference, which we apply ‘simultaneously

rather than sequentially.’” Owens, 967 F.3d at 411

(quoting Richardson v. Branker, 668 F.3d 128, 139

(4th Cir. 2012)). “When § 2254(d) applies, the question

is not whether counsel’s actions were reasonable. The

question is whether there is any reasonable argument

that counsel satisfied Strickland’s deferential

standard.” Harrington, 562 U.S. at 105. The

combination of AEDPA and an ineffective assistance

claim creates one of the most daunting standards in

our law.7

With these standards in mind, we turn to

Sweeney’s arguments on appeal.

7 Analogies outside the law are not always helpful, but one

from tennis might shed some light on the steep hill Sweeney

must climb. Recently, tennis legend Rafael Nadal, considered

one of the greatest tennis players of all time, retired. Nadal holds

twenty-two major titles, including a remarkable fourteen French

Open championships. During his career, Nadal won one hundred

twelve of the one hundred sixteen matches he played on the

famed red clay of Roland Garros. That record caused one

commentator to claim that “[t]he hardest thing in sports is

beating Rafa Nadal in 3 out of 5 sets on clay.” Annacone, Paul,

Sportskeeda (May 16, 2022), https://perma.cc/6JTM-N96X.

Sweeney’s task might be said to be the legal equivalent of

beating Nadal at the French Open.

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2. The state court did not unreasonably apply

Strickland’s deficient representation prong.

Sweeney says the state PCR court unreasonably

applied Strickland by not considering whether his

trial counsel’s failure to request that the remaining

jurors be questioned offended Remmer. There are

three reasons why his argument fails.

a.

First, Sweeney is right that the state PCR court

did not cite Remmer. But that is because Sweeney did

not cite Remmer to it. Sweeney’s state PCR claim

instead relied on Maryland’s state law Nash decision.

That case discusses a trial judge’s responsibility to

voir dire the jury sua sponte when a party has moved

for a mistrial. It says nothing about the separate issue

of when counsel may move to voir dire the jury.

A habeas petitioner must give the state an

“opportunity to pass upon and correct alleged

violations of its prisoners’ federal rights.” Duncan v.

Henry, 513 U.S. 364, 365 (1995) (quotation marks and

citation omitted). He provides this opportunity by

“‘fairly present[ing]’ his claim in each appropriate

state court . . . thereby alerting that court to the

federal nature of the claim.” Baldwin v. Reese, 541

U.S. 27, 29 (2004) (quoting Duncan, 513 U.S. at 365–

66 (1995)). Sweeney did not do this. As a result, the

state PCR court could not have misapplied Strickland

by not addressing a theory Sweeney never

advanced—and indeed, it did not.

Besides, the state court correctly applied Nash; it

said that because Sweeney did not request a mistrial,

the trial judge had no duty to sua sponte voir dire the

jurors. In fact, Sweeney has not argued to us that the

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state PCR court misapplied the theory that he

advanced to that court. He argues that the state PCR

court misapplied Strickland by not considering a

claim that he did not make until his habeas petition

in federal court. But we are reviewing a state court

action under AEDPA. We cannot say the state court

unreasonably applied an argument it never had a

chance to address.

b.

Second, even if Sweeney had advanced a Remmer

argument to the state PCR court, Sweeney has not

shown it would be an unreasonable application of

Strickland to reject it. That’s because it is not clear

that Remmer even applies to this case. Recall that

habeas relief as Sweeney has argued it requires an

adjudication that “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). That means the state

court decision must violate “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.

In Remmer, a juror told the judge that a third

party tried to bribe him. 350 U.S. at 380. The judge

never informed defense counsel, and the trial went on.

Id. at 378. When the defense learned of the contact

after the trial ended, it moved for a new trial. Id.

Ultimately, the Supreme Court determined that a

hearing was necessary given that “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. at 379.

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The Supreme Court has not clearly established

that a juror’s visit to a crime scene constitutes a

“communication, contact, or tampering” sufficient to

trigger Remmer. Indeed, at oral argument Sweeney’s

counsel conceded as much:

JUDGE QUATTLEBAUM: “Has the Supreme

Court clearly established that a Remmer

hearing applies in a situation like this . . . ?”

MR. CONFUSIONE: “I don’t think they have.”

Oral Argument: 6:20–6:42.8

Consistent with that concession, Sweeney cites no

Supreme Court case holding Remmer applies to

Sweeney’s facts. Granted, several circuits have

extended Remmer to claims alleging juror exposure to

extraneous information. See Mayhue v. St. Francis

Hosp. of Wichita, Inc., 969 F.2d 919, 922 (10th Cir.

1992); United States v. Perkins, 748 F.2d 1519, 1533–

34 (11th Cir. 1984); United States v. Hillard, 701 F.2d

1052, 1064 (2d Cir. 1983); United States v. Bassler,

651 F.2d 600, 603 (8th Cir. 1981). But the Supreme

Court has rejected “the mistaken belief that circuit

precedent may be used to refine or sharpen a general

principle of Supreme Court jurisprudence into a

specific legal rule that this Court has not announced.”

Marshall v. Rodgers, 569 U.S. 58, 64 (2013).

Further, other circuit cases affirmatively

undermine Sweeney’s argument. Not every circuit

extends Remmer to a juror’s exposure to extraneous

8

Oral

Argument:

6:20–6:42.

https://www.ca4.uscourts.gov/OAarchive/mp3/22-651320240926.mp3

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information. As the Eighth Circuit has recognized,

“other circuits have confined the application of

Remmer to cases alleging third-party contact with

jurors.” Tunstall v. Hopkins, 306 F.3d 601, 611 (8th

Cir. 2002) (citing United States v. Lloyd, 269 F.3d 228,

238 (3d Cir. 2001)); United States v. Williams–Davis,

90 F.3d 490, 501–02 (D.C. Cir. 1996); United States v.

Boylan, 898 F.2d 230, 260–61 (1st Cir. 1990). “When

the federal circuits disagree on the application of

Remmer regarding any presumption of prejudice, it is

difficult to say the [state] court’s decision is contrary

to, or involved an unreasonable application of, clearly

established federal law, as determined by the

Supreme Court.” Id.

What’s more, all Remmer requires is a hearing “to

determine from the facts whether or not

communication with the juror by the outsider and the

events that followed were prejudicial and, therefore,

harmful to the petitioner.” 350 U.S. at 378. It does not

require voir dire of all jurors. Here, once the jury

alerted the trial judge that Juror Number 4 visited

the crime scene and mentioned his visit to the other

jurors, the trial judge inquired into the juror

misconduct. He asked Juror Number 4 what he did.

He learned from Juror Number 4 that the other jurors

stopped him from discussing what he saw at the

scene. And he instructed Juror Number 4 to refrain

from discussing his visit with the other jurors while

the judge and the parties discussed various options

available to address the juror’s misconduct. The trial

judge then gave Sweeney the opportunity to seek

relief. The trial judge and both parties’ counsel

discussed various options, from all the jurors visiting

the crime scene to a mistrial to striking Juror Number

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4. After consulting with trial counsel, Sweeney elected

to strike Juror Number 4 and proceed to trial with

eleven jurors. True, no one discussed questioning the

remaining jurors. But nothing in Remmer requires

that specific procedure. So, it is not at all clear that

Sweeney did not, in fact, receive a Remmer hearing.

In sum, the state PCR court could not

unreasonably apply Strickland by determining

Sweeney’s trial counsel’s failure to request a Remmer

hearing was not deficient when the Supreme Court

has not clearly established that Remmer applies to

this situation. This is especially true when it is not

clear that the proceedings that took place fall short of

Remmer’s requirements.

c.

Third, Sweeney’s deficiency argument boils down

to an attack upon Nunzio’s strategic decision made in

the heat of trial. The state PCR court made this very

point. It explained that “[t]his Court finds that many

of the allegations made by [Sweeney] are attributed

to the Defenses’ choice in strategy that ultimately did

not work in the Defendant’s favor. Unsuccessful

strategy does not result in an overturning of a

conviction.” J.A. 452. The state PCR court did not

unreasonably apply Strickland in concluding that

Nunzio’s decision to strike Juror Number 4 and

proceed with the trial was the type of strategic

decision for which post-conviction relief was

inappropriate.

Nunzio believed that the trial had gone “very

good,” that “[t]he jurors seemed to be very receptive”

to the defense theory and that favorable testimony

had been introduced about the position of various

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people at the scene, including Sweeney. J.A. 90–91.

Nunzio was concerned that a second trial might yield

less favorable testimony from some witnesses. He

reiterated that he was not concerned about

proceeding with eleven jurors because, highlighting

his impeachment of some of the State’s witnesses, “we

were making headway inside the courtroom.” J.A. 94.

He explained that “[t]he jurors seemed to be very

receptive as you watched them day after day after

day.” J.A. 91. Nunzio continued, “[t]hey were very

attentive. There were things that came out of the trial

that we both thought were very positive,” including

ballistics evidence regarding the gunman’s position as

compared to Sweeney’s alleged position. J.A. 91.

Because several eyewitnesses testified for the

prosecution, Nunzio faced an uphill battle in

defending his client against the government’s

charges. Recognizing that, he responded to the

comment that “[y]ou didn’t have but so much to work

with,” by stating, “[c]orrect . . . at the end of the day,

you have multiple people who are testifying as to the

same thing.” J.A. 108. Nunzio believed his options

were limited. With glimmers of hope in a difficult

situation, he weighed the dangers of proceeding with

the eleven-member jury after Juror Number 4’s visit.

Juror Number 4 reported that the other jurors told

him to stop talking about his visit to the scene as soon

as he brought it up. And Nunzio testified that at no

time did he believe that the jury had been tainted by

any substantive information acquired by Juror

Number 4.

Maybe Nunzio was right; maybe he was wrong.

Maybe other lawyers, including those in the majority,

would have made a different decision; maybe they

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would not. It does not matter. It is neither our job, nor

our prerogative, to nitpick these impressions from the

vantage of hindsight and what-ifs. “A lawyer must

make many decisions before and during the course of

a trial. And what often makes those decisions so

difficult is that many cut both ways. The decision to

advance an argument, introduce certain evidence, call

a witness, cross-examine a witness aggressively or

lightly and so many other decisions can be—and often

are—double-edged swords. There are pros and cons

each way.” Stokes v. Stirling, 10 F.4th 236, 257 (4th

Cir. 2021) (Quattlebaum, J., dissenting) (vacated and

remanded). Even if Nunzio’s decision not to demand a

Remmer hearing was “made after less than complete

investigation,” it was still presumed “reasonable

precisely to the extent that reasonable professional

judgments support the limitations on investigation.”

Strickland, 466 U.S. at 690–91. Because there is no

clearly established right to a Remmer hearing in this

situation, reasonable professional judgments must

support the decision not to seek one.

And we should not forget Sweeney’s role in the

strategic choice he now decries. Nunzio informed

Sweeney that he would have been “more than happy

to” move for a mistrial, but he “defer[red] to” Sweeney.

J.A. 90. Sweeney, like Nunzio, disfavored a mistrial.

They reached “almost a collective” agreement to

proceed with eleven jurors. J.A. 90. Under our system

of representation, which relies on cooperation

between client and counsel, lawyers must factor their

clients’ wishes into their approach to the case.

Accordingly, clients cannot advocate for a course of

action and then turn around and criticize their lawyer

for pursuing it. Remember, the “reasonableness of

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counsel’s actions may be determined or substantially

influenced by the defendant’s own statements or

actions. Counsel’s actions are usually based, quite

properly, on informed strategic choices made by the

defendant and on information supplied by the

defendant.” Strickland, 466 U.S. at 691. For these

reasons, Sweeney has not shown that the state PCR

court misapplied Strickland’s deficiency requirement.

3. The state court did not unreasonably apply

Strickland’s prejudice prong.

Sweeney also argues that the state PCR court

unreasonably applied Strickland in finding that trial

counsel’s performance did not prejudice Sweeney.

Remember, to show prejudice, Sweeney must show a

substantial likelihood of a different result if Nunzio

had requested a Remmer hearing. Harrington, 562

U.S. at 112. Before examining Sweeney’s argument,

recall the state PCR court’s prejudice holding: “[T]he

Court feels that the Defense failed to meet its burden

that but for the jury consisting of eleven jurors, the

Petitioner would not have been convicted.” J.A. 453.

Reviewing the state PCR court’s order in totality

reveals that the state PCR court displayed a proper

understanding of the prejudice standard:

[S]ome of Trial Counsel’s actions could

prejudice the defendant in some fashion.

However, the standard the Defendant must

meet to overturn a conviction is not only that

trial counsel was inefficient [sic], but also that

but for that inefficiency [sic], the Petitioner

would not have been convicted. In this

instance, there was ample evidence implicating

the Petitioner in the murder of Robert

Anderson. The cumulative allegations do not

82a

show that Petitioner’s Constitutional right was

violated.

J.A. 452. As explained below, nothing in the record

suggests the state PCR court’s application of that

standard “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) (emphasis added).

Sweeney faced a mountain of evidence. Indeed, the

Maryland Court of Special Appeals described the

prosecution’s evidence:

In the instant case the jury was presented

with testimony which portrayed [Sweeney] as

the shooter. He accused McDonald of stealing

his marijuana, approached a gathering of

McDonald and several others with a gun clip in

his hand, argued loudly with McDonald and

threatened that he would “kill somebody,”

walked back up the street toward his home

while inserting the clip into a handgun,

continued to shout at McDonald and dared him

to “cross the gun line,” and a short time later,

while in front of his home, shot once into the air

and then fired several shots towards McDonald

and the others who were in the same area

where Anderson was struck in the head and

killed.

J.A. 374. Sweeney challenges the relevance of this

evidence. But the Supreme Court has held the exact

opposite. “In making this [prejudice] determination, a

court hearing an ineffectiveness claim must consider

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the totality of the evidence before the judge or jury.”

Strickland, 466 U.S. at 695.

While there is plenty of evidence for the jury to

convict Sweeney, the record contains no evidence that

the jury was tainted—none. Juror Number 4 reported

that the other jurors immediately told him to stop

talking about his visit to the scene. He was

subsequently struck from the jury. True, it is possible

he was lying. And in theory, Juror Number 4 had an

opportunity to continue talking about his visit while

the court conferred with counsel. But Sweeney

proffered no evidence of either of these possibilities.

That dearth of evidence is fatal. We are not permitted

to speculate on possibilities not in the record. To the

contrary, “[i]n a federal habeas corpus proceeding, we

presume that the state court findings are correct.”

Bell v. Evatt, 72 F.3d 421, 429 (4th Cir. 1995) (citing

28 U.S.C. § 2254(d)). And in reviewing a district

court’s application of 28 U.S.C. § 2254(d), “we review

the district court’s legal conclusions de novo and

findings of fact for clear error.” Wolfe, 691 F.3d at 423

(quotation marks and citation omitted). Neither the

state court nor the district court found any facts

suggesting Juror Number 4 gave the rest of the jury

any details about his visit. That’s because there were

none. There is no evidence in the record suggesting

that Juror Number 4 did anything other than what he

said. In fact, the record shows that when the other

jurors learned of Juror Number 4’s trip to the crime

scene, they stopped him from discussing it—“they

stopped me, too, because they thought that I should

stop talking and [ ] present what I just said to you all.”

J.A. 191.

84a

Not only is there no evidence any of the remaining

jurors were tainted; there is no evidence that had

Nunzio voir dired the remaining jurors, Sweeney

would have avoided conviction. Even if the other

jurors were questioned and even if one or more had

been tainted with information from Juror Number 4,

the remedy would have been a mistrial. In other

words, the charges against Sweeney would not have

gone away; he’d just have been tried again. And at

that trial he’d face that same mountain of evidence he

faced in the trial where he was convicted. There is no

reason for predicting a different result had Sweeney

chosen a mistrial.

Rather than explaining how the state PCR court’s

decision conflicted with clearly established Supreme

Court holdings, Sweeney attempts to shift the test’s

focus from these decisions. Instead of following

established law, the majority asks a different

question—regardless of any prejudice, did the events

surrounding Juror Number 4 deprive Sweeney of a

fair trial? In this effort, he relies on Lockhart v.

Fretwell, 506 U.S. 364, 368–70 (1993). In that case, a

district court granted a petitioner’s capital murder

conviction after the Arkansas Supreme Court

affirmed the sentence. Id. at 367. After the Eighth

Circuit affirmed the district court, the Supreme Court

reversed. Id. at 368. But Lockhart does not replace the

results test with a fairness test. To the contrary,

Lockhart makes the petitioner’s burden heavier.

There, the Supreme Court said, “an analysis focusing

solely on mere outcome determination, without

attention to whether the result of the proceeding was

fundamentally unfair or unreliable, is defective. To

set aside a conviction or sentence solely because the

85a

outcome would have been different but for counsel’s

error may grant the defendant a windfall . . . .” Id. at

369–70 (cleaned up). Thus, if anything, Lockhart adds

an element of unfairness; it does not offer it as an

alternative. Indeed, “[c]ases such as Nix v. Whiteside

and Lockhart v. Fretwell do not justify a departure

from a straightforward application of Strickland

when the ineffectiveness of counsel does deprive the

defendant of a substantive or procedural right to

which the law entitles him.” Williams, 529 U.S. at 393

(cleaned up). That is precisely what Sweeney argues

he was deprived of here.

Sweeney also cites the Supreme Court’s opinion in

Weaver v. Massachusetts, 582 U.S. 286 (2017) for the

notion that he need only show general unfairness.

And it is true that Weaver hints that in the context of

structural error—which Sweeney never argued—the

prejudice analysis might sometimes center on

fairness rather than outcomes. See id. at 300. But the

Court explicitly declared those hints dicta,

disclaiming, “[i]n light of the Court’s ultimate holding,

however, the Court need not decide that question

here.” Id. Because the state court decision must

violate the “holdings, as opposed to the dicta, of [the

Supreme] Court’s decisions as of the time of the

relevant state-court decision,” it does not affect our

analysis. See Williams, 529 U.S. at 412. Weaver thus

offers no legitimate avenue for saying the state court

applied Strickland inconsistently with any clearly

established Supreme Court holdings.

In AEDPA cases, the petitioner must show that

the state court whose decision we are reviewing

violated clearly established Supreme Court law.

86a

Sweeney doesn’t do this. He doesn’t even try. As a

result, his claim must fail.

4. Conclusion

To sum up, Sweeney did not argue Remmer to the

state PCR court; he admits he cannot show Remmer

even applies; he does not deny that his lawyer’s

decision to strike Juror Number 4 and proceed to trial

with eleven jurors was a strategic decision; and he

does not even attempt to argue that a Remmer

hearing had a reasonable probability of producing a

different outcome. Under Supreme Court precedent,

any one of these is independently sufficient to doom

Sweeney’s case. Together, they are insurmountable. I

would affirm the district court’s decision that the

state PCR court did not unreasonably apply

Strickland.

B. The Majority’s Errors

The majority, of course, comes to a different

conclusion. Primarily, it raises a litany of issues not

addressed before any of the Maryland courts or before

the district court. To the majority, these new issues

show that Sweeney’s Sixth Amendment right to an

impartial jury was violated. Within that analysis,

almost as an afterthought, the majority addresses

Sweeney’s claim that the Maryland PCR court

misapplied his ineffective assistance of counsel claim.

I will first explain my disagreements with the

majority’s treatment of Sweeney’s ineffective

assistance of counsel claim—the only issue properly

before us—before turning to the majority’s

spontaneous Sixth Amendment impartial jury

analysis.

87a

1. Ineffective Assistance of Counsel

In fairness, I’m not sure the majority attempts to

conduct an ineffective assistance of counsel analysis.

It doesn’t even analyze Sweeney’s counsel’s conduct

until page 33 of its opinion. And the majority’s

discussion there seems more like another item on the

laundry list of things the majority feels should have

been done better or differently at Sweeney’s trial than

an independent analysis. But to the extent it reviews

Sweeney’s ineffective assistance of counsel claim, the

majority goes astray by ignoring our required

standard of review, by misapplying Strickland’s

deficient performance prong and by failing to assess

whether curing the deficiencies it finds would have

been reasonably likely to result in a different outcome

under Strickland’s prejudice prong.

a.

First, the majority simply ignores the statutorily

mandated standard of review for this claim. Recall

that under AEDPA—which necessarily guides our

review—we may grant habeas relief on a claim that

has been previously “adjudicated on the merits” 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). And “[a]

state court’s determination that a claim lacks merit

precludes federal habeas relief so long as fairminded

jurists could disagree on the correctness of the state

court’s decision.” Harrington, 562 U.S. 86, 101 (2011)

(quotation marks and citation omitted).

88a

The majority ignores this. It doesn’t say anything

about whether fairminded jurists could disagree with

the Maryland PCR court’s decision; indeed, it hardly

discusses that state court decision at all.

In the section of its opinion that discusses

ineffective assistance of counsel, the majority cites the

two Strickland prongs. And of course, Strickland is

the Supreme Court’s foundational ineffective

assistance of counsel decision. But we are not on

direct review of a Strickland decision. We are on a

collateral review of the Maryland PCR court’s

application of Strickland. Indeed, in its 46-page

opinion, the majority never says the state PCR court

unreasonably applied clearly established federal law.

How then can it grant relief?

In Harrington, the Supreme Court rebuked a

circuit court decision that, like the majority, ignored

AEDPA’s standard of review. Here is what the Court

said:

Here it is not apparent how the Court of

Appeals’ analysis would have been any

different without AEDPA. The court explicitly

conducted a de novo review, and after finding a

Strickland violation, it declared, without

further explanation, that the state court’s

decision to the contrary constituted an

unreasonable application of Strickland.

AEDPA demands more. Under § 2254(d), a

habeas court must determine what arguments

or theories supported or, as here, could have

supported, the state court’s decision; and then

it must ask whether it is possible fairminded

jurists could disagree that those arguments or

theories are inconsistent with the holding in a

89a

prior decision of this Court. The opinion of the

Court of Appeals all but ignored the only

question that matters under § 2254(d)(1).

The Court of Appeals appears to have

treated the unreasonableness question as a

test of its confidence in the result it would

reach under de novo review: Because the Court

of Appeals had little doubt that Richter’s

Strickland claim had merit, the Court of

Appeals concluded the state court must have

been unreasonable in rejecting it. This analysis

overlooks arguments that would otherwise

justify the state court’s result and ignores

further limitations of § 2254(d), including its

requirement that the state court’s decision be

evaluated according to the precedents of this

Court. It bears repeating that even a strong

case for relief does not mean the state court’s

contrary conclusion was unreasonable.

Harrington, 562 U.S. at 101–02 (quotation marks and

citations omitted). What the Ninth Circuit explicitly

did in Harrington, the majority does implicitly—it

conducts a de novo review. AEDPA does not permit

this.

In addition, the majority ignores the overlapping

standard that applies for ineffective assistance of

counsel claims. Remember that for such claims, a

petitioner like Sweeney must “[e]stablish[] that a

state court’s application of Strickland was

unreasonable under § 2254(d) . . . .” Id. at 105. This

makes his burden “all the more difficult.” Id.

We are not permitted to brush these standards

aside. Standards of review may not be exciting. But

90a

that does not mean they are not important. They are

required guardrails for appellate review. They protect

against judicial excess by prohibiting appellate judges

from substituting their judgment for that of other

courts that, under the law, have priority. The

majority is not permitted to cast aside the standard of

review that governs Sweeney’s claims.

b.

Second, the majority fails to properly apply

Strickland’s prong one—deficient performance. For

brevity’s sake,9 I will describe just four examples of

the majority’s failures.

One, the majority says “Nunzio did not reasonably

investigate Juror No. 4’s taint nor the potential taint

of the remaining eleven jurors.” Maj. Op at 33–34. But

as the majority notes, Nunzio did ask Juror Number

4 whether the other jurors knew he visited the crime

scene. And after answering yes, Juror Number 4 said

they stopped him from saying anything else.

The majority says Nunzio should have asked more

questions and should have requested that the other

jurors be questioned, too. That alone should give us

pause. A panel of appellate judges is micromanaging

a trial lawyer on how he should question a juror. How

many questions would have satisfied the majority?

And is there a danger that excessive questioning will

prejudice the jury? The majority offers no guidance—

9 Using “brevity” to describe even a part of 50-page dissent

is admittedly ironic. I appreciate that doing so may have caused

readers to roll their eyes.

91a

just its view on Monday morning that the quarterback

should have thrown a better pass.

But the majority’s reasoning is even more

concerning considering the context of the questions

and answers it criticizes. Juror Number 4’s answer

was consistent with the note the other jurors sent the

judge. Remember that the note said “[t]there was no

interaction.” J.A. 190. With that corroborating

information, Nunzio’s satisfaction with addressing

the potential taint makes more sense. Could he have

done more? Sure. But with Juror Number 4’s answers

matching the jury’s note, Nunzio felt he had enough

information make a strategic decision. Strickland

does not permit us to second guess it.

The majority’s explanation for why it feels more

questions should have been asked reveals the extent

of its nit-picking. The majority says that Juror

Number 4’s positive response to Nunzio’s question—

“Do any of the other jurors know you went there?”—

means Nunzio failed to determine how many knew he

went to the scene. But why does that matter if there

was no interaction about what Juror Number 4 did or

saw? Sure, Nunzio could have asked twenty more

questions to rule out the possibility that one or more

jurors learned something else. But his efforts were

hardly constitutionally deficient, especially when

Sweeney has absolutely no evidence that there was

any contamination.

Not only does the majority nit-pick; to support its

conclusion that Nunzio should have asked more

questions, the majority misconstrues the record.

When asked, Juror Number 4 said he could decide the

case based on the evidence presented at trial.

Perplexingly, the majority says “Juror No. 4’s

92a

response suggests that what he saw at the crime

scene verified what he had heard at trial from the

government. It is reasonable to infer that Juror No. 4

expressed that he could ‘bas[e] [his] decision . . . off of

the evidence which was presented in the case’ because

his visit confirmed the evidence presented at trial—

eyewitness testimony and the diagram—all of which

was government evidence.” Maj. Op. at 35 (emphasis

added). Why is that reasonable to infer? The juror

never said that and nothing he did say supports that

inference. Rather than faithfully reviewing the

record, the majority speculates. See Koon v. North

Carolina, 50 F.4th 398, 409 (4th Cir. 2022) (“A

permissible inference must be reasonably probable

given the facts, not just conceivable or possible. So we

must reject tenuous inferences that rest upon

speculation and conjecture.”).

Similarly, when asked if he could decide the case

based on the evidence from trial, Juror Number 4

stated the other jurors “would have no problem with

basing their decision, off of the evidence which was

presented in the case.” J.A. 192. To the majority,

“Juror No. 4’s remark indicates that he knew, or at

least had insight into, how the other jurors would

proceed moving forward based on how they had

reacted to the information he shared.” Maj. Op. at 35.

What does the majority mean by this? Juror Number

4 said the other jurors could base their decision on the

evidence alone. If we make any reasonable inference

at all about this, it is that Juror Number 4 believed

the other jurors would limit their deliberations to the

evidence as the court instructed them because they

stopped him from saying anything more. It is hard to

see what the majority seeks to wring from this.

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Two, the majority criticizes Nunzio for not

“contemplat[ing] a potential mistrial on the record.”

Maj. Op. at 36. This is remarkable. The record,

considered as a whole, does show that Nunzio

considered a mistrial. As the district court explained,

“[t]he record reflects that Sweeney’s counsel offered

him the option for the ultimate remedy under

Remmer, a mistrial, but Sweeney voluntarily waived

that remedy when he elected to proceed with an

eleven-member jury.” J.A. 495. The record we are

supposed to review—not the trial record in isolation—

shows Nunzio did contemplate a mistrial, but he

ultimately deferred to his client’s wishes.

And Nunzio had good reasons to defer to

Sweeney’s wishes. Remember, the government had a

mountain of incriminating evidence. Nunzio felt he

had landed some blows in cross-examining the

government’s witnesses, blows he feared he could not

replicate as effectively at a second trial where he

would not have the element of surprise.

Despite all that, rather than discussing the

mistrial issue with Sweeney privately, the majority

apparently would have had Nunzio “contemplate a

potential mistrial on the record.” Maj. Op at 36. Not

doing so, the majority concludes, “was unreasonable.”

Maj. Op. at 36. Even there, though, the majority gets

the standard of review wrong. The question is not

whether we think Nunzio acted reasonably. The

question is whether any fairminded jurist could find

it reasonable to not openly “contemplate a mistrial on

the record.” Maj. Op. at 36. But under any standard,

the majority’s reasoning is hard to understand. After

all, what does contemplating a mistrial on the record

mean? I can’t see why all fairminded jurists would

94a

find what Nunzio did on this issue constitutionally

deficient.

Three, the majority says, “one could say that

proceeding with an eleven-person jury in any murder

case—significantly, one where the defendant is facing

multiple life sentences, and where the defense did not

present any evidence—is questionable.” Maj. Op. at

37. Why is that? Here, even if Nunzio’s information

was not as conclusive as the majority would like, he

had information that the remaining eleven jurors

were untainted by information about Juror Number

4’s crime scene visit. Those remaining jurors also had

heard

Nunzio’s

cross-examination

of

the

government’s witnesses, where Nunzio felt he had

scored some points. So, the question is not whether

you’d rather have eleven or twelve jurors in isolation.

The question is whether you’d rather have eleven

jurors who heard the cross-examination you perceived

to have been effective and who you don’t think are

tainted hear the mountain of evidence against your

client—or whether you’d rather have twelve jurors

who you are absolutely sure aren’t tainted but might

not hear as effective of a cross-examination consider

that same mountain of evidence.

Whether we agree or disagree with what Nunzio

did doesn’t matter. Supreme Court and Fourth

Circuit precedent is clear. “[S]trategic choices made

after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable[,]”

and even “strategic choices made after less than

complete investigation are reasonable precisely to the

extent that reasonable professional judgments

support the limitations on investigation.” Strickland,

466 U.S. at 690–91; see Cox v. Weber, 102 F.4th 663,

95a

676–677 (4th Cir. 2024), cert. denied, No. 24-6014,

2025 WL 247479 (U.S. Jan. 21, 2025). We should not

second guess Nunzio’s strategic choice.

Also, the “reasonableness of counsel’s actions may

be determined or substantially influenced by the

defendant’s own statements or actions. Counsel’s

actions are usually based, quite properly, on informed

strategic choices made by the defendant and on

information supplied by the defendant.” Id. at 691.

According to the majority, Nunzio should have

disregarded Sweeney’s wishes. First, that is not what

Supreme Court law requires. Second, will such a rule

make defendants better off? Would the majority have

defense counsel ignore clients’ wishes even when they

accord with counsel’s own strategic judgment?

Four, now on a roll, the majority declares, “[i]t is

unreasonable for a defense attorney in a murder case

to believe that things ‘were very positive’ where he

presented no witnesses nor evidence, no matter how

‘receptive’ or ‘attentive’ the jurors seemed to be.” Maj.

Op. at 38. Once again, why is this right? Criminal

defendants often do not have helpful affirmative

evidence. After all, favorable witnesses do not grow on

trees. Neither does favorable evidence. The best—

maybe the only—option for lawyers defending clients

charged with crimes in some cases is to poke holes in

the government’s case. Sometimes that goes well.

Sometimes it doesn’t. But I don’t understand the

majority’s categorical statement that when a lawyer

is in that position, as Nunzio seems to have been, he

can’t make strategic decisions based on a belief that

he had made progress in carrying out that strategy.

Remember that Sweeney faced an uphill battle from

the start. Multiple eyewitnesses to the shooting

96a

testified at trial. Nunzio achieved what he could on

cross-examination and observed a positive reaction

from the jury. Indeed, the reaction was positive

enough that Sweeney himself did not want a new

trial.

I fear the consequences of this micro-managing of

defense counsel. I can’t help but believe that many

defense attorneys will read this decision, scratch their

heads and wonder what they are supposed to do.

Whatever strategic choices they make will be

attacked by disaffected former clients and judges who

think their Monday-morning quarterbacking would

have won the game. They will fear, reasonably, that a

judge may muse that he would have approached the

case differently and declare their assistance

ineffective, with all the travails that can attend—

professional discipline, fines, reputational damage

and malpractice suits. The resulting risk aversion will

do nothing to help defendants like Sweeney.

For these reasons, the majority fails to properly

apply Strickland’s prong one requirement of deficient

performance.

c.

As to Strickland’s prejudice prong, the majority

spends barely two paragraphs. Remember that to

show prejudice, “Strickland asks whether it is

‘reasonably likely’ the result would have been

different.” Harrington, 562 U.S. at 111–12 (citing

Strickland, 466 U.S. at 696). Despite that, the

majority does not even attempt to analyze this prong.

Instead, it cites Weaver for the proposition that “the

concept of prejudice is defined in different ways

depending on the context in which it appears.” 582

97a

U.S. at 300. The majority refers to Strickland’s

acknowledgment that it did not “establish mechanical

rules” and that “the ultimate focus of inquiry must be

on the fundamental fairness of the proceeding whose

result is being challenged.” Strickland, 466 U.S. at

696. With those two statements, the majority finds

prejudice by stating the shortcomings it perceives in

Nunzio’s performance “deprived Sweeney of his Sixth

Amendment right to the effective assistance of

counsel, further undermining his right to a fair trial.”

Maj. Op at 41. In other words, the majority believes

there is no requirement that had Nunzio done what it

believes he should, there is a reasonable probability

of a different outcome. That is not the law and, even

in an unpublished opinion, we should not pretend that

it is.

True, Weaver discussed the possibility of replacing

Strickland’s rules with a standard of fairness. But it

expressly said it was not replacing Strickland’s

results requirement. Instead, the Court said, “[i]n

light of the Court’s ultimate holding, however, the

Court need not decide that question here.” Weaver,

582 U.S. at 300. And since Weaver, the Court has not

created any exception to the rule that a petitioner

must show a reasonable probability of a different

result. Thus, Strickland’s second prong remains the

law. So, Sweeney and the majority’s failure to analyze

this prong is fatal. This should be game, set, match.

2. The Majority’s Sua Sponte Analysis

Undeterred by the insurmountable problems with

Sweeney’s ineffective assistance of counsel claim, the

majority formulates a different way to order a new

trial for Sweeney. It concludes that Juror Number 4’s

unauthorized visit to the crime scene, the trial judge’s

98a

handling of the revelation of Juror Number 4’s visit

and Nunzio’s purported failures combined to deprive

Sweeney of his Sixth Amendment right to an

impartial jury. And it declares this a structural error

for which no showing of prejudice is required.

It is hard to overstate this judicial overreach. Try

as one might, any hint of this argument is missing

from the state and district court proceedings and from

the briefs before us. Sweeney did not make this

argument before the Maryland trial court or in his

direct appeal to the Maryland appellate courts.

Likewise, he did not make it before the Maryland PCR

court. He didn’t even make it when he sought relief

under AEDPA in the district court. And he did not

make it to us on appeal. This novel argument is the

majority’s and the majority’s alone. Regrettably, in

charting its own path, the majority violates AEDPA’s

exhaustion requirements and offends party

presentation principles.

First, AEDPA. It states 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 unless it appears that . . . the applicant has

exhausted the remedies available in the courts of the

State.” 28 U.S.C. § 2254(b)(1)(A). As the district court

said, “Sweeney failed to bring a claim, either on direct

appeal or in his application for postconviction review,

that the trial court deprived him of the right to an

impartial jury when it did not conduct a proper

Remmer hearing. Sweeney’s counsel conceded this

fact during the postconviction hearing.” J.A. 493. So,

any

unexhausted

arguments—including

the

majority’s impartial jury argument—are not properly

before us.

99a

In a habeas case just two years ago, we concluded

that the state forfeited an argument by not raising it

on appeal. Stokes v. Stirling, 64 F.4th 131, 136 (4th

Cir. 2023), cert. denied, 144 S. Ct. 377 (2023). We said

that “[i]t is well-established that a party’s failure to

raise or discuss an issue in its appellate brief is to be

deemed an abandonment of that issue.” Id. at 137

(quotation marks and citations omitted). We also said

that “[e]nforcing waiver and forfeiture rules against

appellees reflects the principle that we apply [these]

rules on a consistent basis so that they provide a

substantial measure of fairness and certainty to the

litigants who appear before us.” Id. at 137 (quotation

marks and citations omitted). So much for consistent

application.

Even outside of AEDPA, the majority flouts

Supreme Court precedent on party presentation. “In

our adversary system, in both civil and criminal cases,

in the first instance and on appeal, we follow the

principle of party presentation. That is, we rely on the

parties to frame the issues for decision and assign to

courts the role of neutral arbiter of matters the

parties present.” Greenlaw v. United States, 554 U.S.

237, 243 (2008). These are not empty words. In United

States v. Sineneng-Smith, the Supreme Court

rebuked the Ninth Circuit for “depart[ing] so

drastically from the principle of party presentation as

to constitute an abuse of discretion.” 590 U.S. 371, 375

(2020). There, our sister circuit spun an overbreadth

argument out of a First Amendment, as-applied

argument. Id. at 374. The Court condemned this

judicial overreach. “[A] court is not hidebound by the

precise arguments of counsel, but the Ninth Circuit’s

radical transformation of this case goes well beyond

100a

the pale.” Id. at 380.10 We should follow Justice

Ginsburg’s guidance.

We have our own precedent on party presentation.

The majority flouts it too. “We ordinarily do not

consider arguments raised for the first time on

appeal.” 1988 Tr. for Allen Children v. Banner Life

Ins. Co., 28 F.4th 513, 528 (4th Cir. 2022). Courts

cannot “conjure up questions never squarely

presented to them.” Beaudett v. City of Hampton, 775

F.2d 1274, 1278 (4th Cir. 1985). “[I]t is not the role of

the district court to act as a roving advocate,

providing legal arguments to the parties before it.”

Aikens v. Ingram, 652 F.3d 496, 506 (4th Cir. 2011)

(Diaz,

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