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En banc panel declines to review habeas ruling

On the question of whether juror misconduct—seeking a pastor’s advice about the death penalty during deliberations and relaying that communication to other jurors—influenced the jury’s decision to impose the death penalty, a majority of the panel denied an en banc hearing.


A requested poll of the court failed to produce a majority of judges in regular active service and not disqualified who voted in favor of rehearing en banc. Chief Judge Gregory, Judge Motz, Judge King, Judge Keenan, Judge Wynn, Judge Diaz, Judge Floyd, Judge Thacker and Judge Harris voted to deny rehearing en banc.

Judge Wilkinson, Judge Niemeyer, Judge Agee, Judge Richardson, Judge Quattlebaum and Judge Rushing voted to grant rehearing en banc.

Concurring opinion

Wynn, J., concurring in the denial of rehearing en banc:

The question in this case is whether juror misconduct—seeking the religious advice of a pastor about the death penalty during jury deliberations and then relaying that communication to fellow jurors—had a substantial and injurious effect or influence on the jury’s decision to impose the death penalty on petitioner Barnes. The facts show that it did. Accordingly, I concur in denying the petition for rehearing en banc.

Dissenting opinion

Wilkinson, J., with whom Niemeyer, J., joins, dissenting from the denial of rehearing en banc:

While this immediate appeal concerns a federal district court’s determination regarding the existence vel non of actual prejudice, the panel decision ultimately flows from an earlier judgment that abrogated what should have been the final word of North Carolina’s state courts.

As Judge Agee aptly explained in Barnes I, there is not a colorable argument that the North Carolina Supreme Court decision as adopted by the MAR court amounted to an “unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States.”

Dissenting opinion

Agee, J., with whom Niemeyer, J., joins, dissenting from the denial of rehearing en banc:

I have twice previously expressed the reasons why William Leroy Barnes has failed to satisfy the high burden a state prisoner faces to obtain relief under 28 U.S.C. § 2254. Largely for the same reasons provided in the prior dissenting opinions, I now dissent from the court’s denial of en banc rehearing.

En banc rehearing was necessary to maintain uniformity with the Supreme Court and this court’s precedent concerning when a petitioner has demonstrated “actual prejudice” resulting from an error alleged to have occurred during trial. Because the full court will not rehear the case, the panel majority’s decision stands, granting Barnes relief despite his failure to come forward with any evidence that the error he complained of actually prejudiced him.

Barnes v. Thomas, Appeal No. 18-5, Dec. 18, 2019. 4th Cir. VLW 019-2-302. 18 pp.

VLW 019-2-302

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