Archie Lee Billings v.  MARVIN POLK, Warden of Central Prison, Raleigh, North Carolina

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 ARCHIE LEE BILLINGS,
Petitioner-Appellant,
v. No. 05-8 
MARVIN POLK, Warden of Central
Prison, Raleigh, North Carolina,
Respondent-Appellee. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CA-03-286-1-FWB)
Argued: February 3, 2006
Decided: March 14, 2006
Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Wilkinson and Judge Michael joined.
COUNSEL
ARGUED: Kevin Patrick Bradley, Durham, North Carolina, for
Appellant. Steven Franklin Bryant, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Cynthia Katkish, Washington,
D.C., for Appellant. Roy Cooper, Attorney General of North Caro-
lina, Raleigh, North Carolina, for Appellee.

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OPINION
LUTTIG, Circuit Judge:
Petitioner-appellant Archie Lee Billings appeals the district court’s
denial of his petition for a writ of habeas corpus. Finding no error in
the district court’s adjudication of Billings’ claims, we affirm.
I.
On September 12, 1995, Archie Lee Billings was indicted in North
Carolina for first-degree murder, first-degree rape, first-degree kid-
napping, first-degree burglary, and assault with a deadly weapon with
intent to kill, inflicting serious injury. J.A. 8-12. In May 1996, a jury
convicted Billings on all counts, id. at 80-84, and, after a separate
capital sentencing proceeding, recommended a death sentence, id. at
266-72, which the state court duly imposed, id. at 273-74. The facts
underlying Billings’ convictions and death sentence, as summarized
by the Supreme Court of North Carolina on direct appeal, are as fol-
lows:
The State’s evidence tended to show inter alia that Robert
Jackson left his Caswell County mobile home at 1:50 a.m.
on 7 July 1995 to gather and ready a herd of cows for milk-
ing. Jackson left his two children, Bobby, thirteen years old,
and Amy, eleven years old, asleep in their beds. Sometime
between 1:50 a.m. and 4:50 a.m., [Billings] entered the
mobile home, stabbed Bobby repeatedly with a knife, and
began his assault on Amy. Bobby struggled to a telephone
in the kitchen and dialed 911. When emergency personnel
arrived at 5:00 a.m., Bobby was found on the kitchen floor
in a pool of his own blood. [Billings] had stabbed the boy
some twenty-three times. Bobby identified [Billings] as the
man who stabbed him and whom he had seen carry his sister
out of the mobile home. It was not until some twelve hours
later that Amy’s body was found in a field, with her pajama
bottoms around her feet and her pajama top partially torn
off. Amy had died from a stab to her throat that had severed
her carotid artery. An autopsy revealed that Amy had also
been sexually assaulted. [Billings] worked with Jackson on
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the dairy farm, and both children knew him well. [Billings]
was arrested by sheriff’s deputies on the dairy farm the same
morning the children were attacked.
Id. at 292.
On May 8, 1998, the Supreme Court of North Carolina affirmed
Billings’ convictions and sentence, id. at 285-308, and on November
16, 1998, the United States Supreme Court denied Billings’ petition
for a writ of certiorari, Billings v. North Carolina, 525 U.S. 1005
(1998). On November 10, 1999, Billings filed a Motion for Appropri-
ate Relief ("MAR") with the Superior Court of Caswell County,
North Carolina. J.A. 309-14. That motion was denied, id. at 324-61,
and the North Carolina Supreme Court denied Billings’ petition for
a writ of certiorari, id. at 362.
On March 5, 2003, Billings filed a petition for a writ of habeas cor-
pus in the Eastern District of North Carolina. Id. at 363-72. The case
was subsequently transferred to the Middle District of North Carolina,
id. at 373-74, which denied the petition and dismissed the action with
prejudice, id. at 430. On November 7, 2005, we granted Billings’
motion for a certificate of appealability. This appeal followed.
II.
In reviewing the district court’s denial of Billings’ habeas petition,
we review the district court’s conclusions of law de novo and its find-
ings of fact for clear error. Quesinberry v. Taylor, 162 F.3d 273, 276
(4th Cir. 1998). Because this case comes before us on collateral
review, our authority to grant relief is limited by the provisions of the
Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
as well as by the Supreme Court’s decision in Teague v. Lane, 489
U.S. 288 (1989). Under AEDPA, we may not grant habeas relief
"with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim — (1) resulted
in a decision that was contrary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) 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." 28 U.S.C.
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§ 2254(d). Under Teague, Billings may not have the benefit of any
new constitutional rule of criminal procedure announced after his
conviction became final.1 489 U.S. at 310. With these standards of
review in mind, we turn to the merits of Billings’ claims.
III.
On appeal, Billings raises five issues, three relating to allegations
of juror misconduct, one relating to improper arguments made by the
prosecutor during sentencing proceedings, and one relating to the trial
court’s submission of a mitigating circumstance to the jury over Bil-
lings’ objection. We consider each of Billings’ claims in turn.
A.
Billings’ first claim relates to juror Janie Coleman’s alleged failure
to answer honestly material questions on voir dire. During voir dire,
defense counsel asked a panel of potential jurors, including Coleman,
whether anyone "[knew] of any reason at all why [he or she] could
not be a fair and impartial juror in this trial." J.A. 57. Coleman did
not raise her hand in response to this question. See id. When asked
a similar question by the court, Coleman expressly stated that she
knew of no reason why she could not give both the state and the
defendant a fair and impartial trial. Id. at 63. During a separate
exchange, defense counsel Jim Tolin, who had previously represented
Coleman’s daughter-in-law in a domestic matter, asked Coleman
whether his representation of her daughter-in-law would "cause [her]
any problems." Id. at 75. Coleman responded that it would not, and,
in response to Tolin’s question, "What are your feelings about me?",
stated that she had "no hard feelings" about him. Id. She further
affirmed that she did not believe in punishing the defendant for any-
thing Tolin might have done. Id. at 75-76. After further examining
Coleman, Tolin informed the court that the defense was "content with
this juror," and Coleman was accepted as juror number ten. Id. at 78-
79.
1Teague’s restriction is subject to two narrow exceptions not applica-
ble in this case. See Teague, 489 U.S. at 311.
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In an affidavit submitted after trial, Coleman revealed several facts
that she had not disclosed on voir dire. She stated that she "knew [the
prosecutor] previously but not well" and that she was grateful that he
had previously dropped an assault charge against her. Id. at 315. She
also stated that defense counsel Tolin had heard an unemployment
case of hers twenty years ago, that he had ruled against her, and that,
before the trial, she would not have hired him. Id. Based on these
statements from Coleman’s affidavit, Billings argued before the state
MAR court that his right to a fair jury trial was violated "because in
voir dire, juror Janie Coleman failed to disclose that she was biased
in favor of the prosecution by her gratitude toward the prosecutor for
previously dropping an assault charge against her and by her animos-
ity against one of appointed counsel for previously ruling in favor of
her former employer and against her in her unemployment case." Id.
at 310. The state MAR court rejected Billings’ claim, concluding that
the facts alleged in Coleman’s affidavit, even if proven true, were
insufficient to entitle Billings to relief. Id. at 326. The district court
concluded that this ruling was neither contrary to nor an unreasonable
application of clearly established federal law. Id. at 396.
The district court did not err. In order to obtain a new trial based
on a juror’s failure to disclose information during voir dire, Billings
"must first demonstrate that a juror failed to answer honestly a mate-
rial question on voir dire, and then further show that a correct
response would have provided a valid basis for a challenge for cause."
See McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548,
556 (1984). Billings has not satisfied the first prong of this test. Cole-
man’s affidavit does not, contrary to Billings’ contention, establish
that she failed to answer honestly a material question on voir dire.
Rather, it shows at most that Coleman failed to volunteer certain
information when questioned about her ability to be impartial. Cole-
man’s failure to volunteer this information does not amount to a dis-
honest response to the questions posed.2 The fact that Coleman was
2Nor does it amount to a deliberate omission of material information.
In Williams v. Taylor, the Court concluded that a hearing was necessary
because a juror had deliberately omitted material information when
responding to questions posed by defense counsel on voir dire. 529 U.S.
420, 440-44 (2000). In that case, the juror indicated that she was not
related to any of the witnesses even though she had been married to one
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grateful to the prosecutor for dismissing charges against her does not
establish that Coleman was being dishonest when she stated that she
could be a fair and impartial juror. And neither the fact that Coleman
believed defense counsel Tolin had ruled against her in an unemploy-
ment matter nor the fact that she would not have hired him before the
trial establishes that Coleman was being dishonest when she stated
that she had no hard feelings against Tolin and that his previous repre-
sentation of her daughter-in-law would not affect her ability to give
the defendant a fair trial. In short, other than the question about
Tolin’s representation of her daughter-in-law, Coleman was never
asked about any previous contacts she may have had with the attor-
neys involved in the case, and nothing in her post-trial affidavit sug-
gests that she was anything less than forthright and honest in the
answers she gave to the questions she was asked. It may be that Bil-
lings’ trial attorneys should have more thoroughly explored the pro-
spective jurors’ past contacts with the attorneys involved in the case.
But McDonough provides for relief only where a juror gives a dishon-
est response to a question actually posed, not where a juror innocently
fails to disclose information that might have been elicited by ques-
tions counsel did not ask. See McDonough, 464 U.S. at 555 (noting
that "[a] trial represents an important investment of private and social
resources, and it ill serves the important end of finality to wipe the
of them for 17 years and was the mother of his four children. Id. at 440.
She also stated that she had never been represented by any of the attor-
neys even though one of them had represented her during her divorce. Id.
at 440-41. The juror later explained that she did not consider herself "re-
lated to" her former husband and that, because her divorce was uncon-
tested, she did not think the attorney had "represented" her. Id. at 441.
As to the first question, the Court concluded that, even if the juror’s
answer was technically or literally correct, it suggested an unwillingness
to be forthcoming. Id. As to the second question, the Court concluded
that the juror’s failure to disclose material information was "misleading
as a matter of fact because, under any interpretation, [the attorney] had
acted as counsel to her and [her ex-husband] in their divorce." Id. at 441-
42. In this case, by contrast, none of Coleman’s answers was misleading,
disingenuously technical, or otherwise indicative of an unwillingness to
be forthcoming. There is simply nothing in the record that would allow
us to conclude that Coleman deliberately omitted material information
during voir dire.
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slate clean simply to recreate the peremptory challenge process
because counsel lacked an item of information which objectively he
should have obtained from a juror on voir dire examination").
Accordingly, the state court’s conclusion that Billings failed to
adduce facts sufficient to entitle him to relief on his juror misrepre-
sentation claim was neither contrary to nor an unreasonable applica-
tion of clearly established federal law.
Billings also contends in his brief on appeal that the state MAR
court violated clearly established federal law by resolving his claim
without holding an evidentiary hearing to explore whether Coleman
was actually biased in favor of the prosecution because of her past
contacts with the prosecutor and defense counsel. See Jones v. Coo-
per, 311 F.3d 306, 310 (4th Cir. 2002) ("The McDonough test is not
the exclusive test for determining whether a new trial is warranted: a
showing that a juror was actually biased, regardless of whether the
juror was truthful or deceitful, can also entitle a defendant to a new
trial."). It is unclear based on the materials before the court whether
Billings even requested an evidentiary hearing with respect to actual
bias before the state MAR court.3 But even if he did, the state court
was not required to hold a hearing in these circumstances because Bil-
lings had ample opportunity at voir dire to discover Coleman’s past
contacts with the attorneys. Nothing in federal law requires a state
court to hold a post-trial evidentiary hearing about matters that the
defendant could have explored on voir dire but, whether by reason of
neglect or strategy, did not. It is true that the Supreme 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." Smith
v. Phillips, 455 U.S. 209, 215 (1982). But this does not mean that a
court is obliged to hold an evidentiary hearing any time that a defen-
dant alleges juror bias, regardless of whether he utilized the pre-trial
procedures available for ensuring the jury’s impartiality.4 Otherwise,
3Billings’ motion to the state MAR court did not contain a request for
a hearing on actual bias. J.A. 310. In denying relief, however, the MAR
court concluded that there was insufficient evidence to hold an evidenti-
ary hearing with respect to any of the five juror misconduct claims Bil-
lings raised before that court. Id. at 325-26.
4In cases where the Supreme Court has required a hearing, the source
of potential bias was not discoverable on voir dire, either because a juror
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defendants would be able to sandbag the courts by accepting jurors
onto the panel without exploring on voir dire their possible sources
of bias and then, if their gambit failed and they were convicted, chal-
lenging their convictions by means of post-trial evidentiary hearings
based on newly discovered evidence of possible juror bias. We con-
clude that, even assuming Billings asked the state court to hold an
evidentiary hearing on actual bias, its refusal to do so was neither
contrary to nor an unreasonable application of clearly established fed-
eral law.5
deliberately omitted material information in response to questions asked
on voir dire or because the circumstances that potentially compromised
the juror’s impartiality did not arise until after the trial had begun. See,
e.g., Williams, 529 U.S. at 440-42 (2000) (stating that a hearing was
needed where a juror deliberately omitted material information when
responding to questions posed on voir dire); Phillips, 455 U.S. at 216-18
(concluding that a hearing was an adequate remedy where, during trial,
a juror applied for a job at the prosecutor’s office); Remmer v. United
States, 347 U.S. 227, 230 (1954) (ordering a hearing where, during trial,
a juror was offered a bribe and was subsequently investigated by an FBI
agent). That fact also distinguishes the principal Fourth Circuit case on
which Billings relies. See Fullwood v. Lee, 290 F.3d 663, 680-82 (4th
Cir. 2002) (requiring a hearing where a juror’s husband pressured her
throughout the trial to vote for the death penalty).
5For the same reason that federal law does not obligate a state court
to hold a post-trial evidentiary hearing about matters that were fairly dis-
coverable on voir dire, a federal habeas court is not required to hold an
evidentiary hearing about such matters on collateral review. Indeed,
under AEDPA, a federal habeas court is likely forbidden from holding
an evidentiary hearing where the petitioner failed, as Billings did here,
to investigate the facts at the appropriate stage of the state court proceed-
ings. See 28 U.S.C. § 2254(e)(2) (stating that, subject to two narrow
exceptions not applicable here, a federal habeas court may not hold an
evidentiary hearing with respect to a claim "if the applicant has failed to
develop the factual basis of [the] claim in State court proceedings"); cf.
Williams, 529 U.S. at 442 (concluding that petitioner’s failure to discover
facts that a juror had deliberately omitted on voir dire was not a "failure"
to develop the factual basis of the claim under § 2254(e)(2) where the
trial record contained no evidence that would have put a reasonable attor-
ney on notice that the juror had deliberately omitted material informa-
tion); Townsend v. Sain, 372 U.S. 293, 317 (1963) (stating that "[i]f, for
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B.
Billings next claims that he was denied his rights to a fair trial and
an impartial jury because an alternate juror wore a T-shirt one day
during trial that said "No Mercy — No Limits," and members of the
jury saw and joked about the T-shirt. See J.A. 315, 317. The state
MAR court concluded that these facts, even if proven true, were
insufficient to entitle Billings to relief, id. at 326, and the district court
concluded that this ruling was neither contrary to nor an unreasonable
application of clearly established federal law, id. at 417-18.
The district court did not err. Billings cites no decision or line of
decisions by the Supreme Court that clearly establishes that a jury’s
exposure to a T-shirt like the one at issue here amounts to a violation
of the defendant’s constitutional rights. Instead, Billings cites a Ninth
Circuit decision holding that a rape defendant’s right to a fair trial was
violated when the trial judge permitted spectators at his trial to wear
buttons bearing the words "Women Against Rape." See Norris v. Ris-
ley, 918 F.2d 828 (9th Cir. 1990). However, that decision is relevant
to this habeas action only insofar as it would have been objectively
unreasonable under Supreme Court precedent to reach a contrary con-
clusion, see Williams v. Taylor, 529 U.S. 362, 409-10, 412 (2000); 28
U.S.C. § 2254(d)(1), and it most assuredly would not have been
objectively unreasonable under Supreme Court precedent to reach a
contrary conclusion in Norris. Norris relied principally upon Estelle
v. Williams, 425 U.S. 501 (1976), which concluded that the state can-
not compel an accused to stand trial before a jury while dressed in
identifiable prison clothes; Cox v. Louisiana, 379 U.S. 559, 562
(1965), where the Court, in the course of overturning the defendant’s
conviction for picketing near a courthouse, noted that "[t]he constitu-
any reason not attributable to the inexcusable neglect of petitioner, evi-
dence crucial to the adequate consideration of the constitutional claim
was not developed at the state hearing, a federal hearing is compelled"
and that "[t]he standard of inexcusable default . . . adequately protects the
legitimate state interest in orderly criminal procedure, for it does not
sanction needless piecemeal presentation of constitutional claims in the
form of deliberate by-passing of state procedures") (emphasis added and
internal citation omitted).
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tional safeguards relating to the integrity of the criminal process . . .
exclude influence or domination by either a hostile or friendly mob;"
and Turner v. Louisiana, 379 U.S. 466 (1965), which held that the
defendant’s right to a fair trial by an impartial jury was violated when
the prosecution’s principal witnesses were allowed to have extensive
private contact with the jury.
These precedents do not clearly establish that a defendant’s right
to a fair jury trial is violated whenever an article of clothing worn at
trial arguably conveys a message about the matter before the jury. It
would not be objectively unreasonable to conclude that the jury’s
exposure to a T-shirt or button that could, but need not necessarily,
be construed as conveying a message about the matter before the jury
simply does not rise to the level of a constitutional violation in the
way that it does when the court forces the defendant to appear before
the jury in prison garb, allows the trial to be influenced or dominated
by a mob, or allows the prosecution’s key witnesses to have extensive
interaction with the jury. See Phillips, 455 U.S. at 217 (noting that
"due process does not require a new trial every time a juror has been
placed in a potentially compromising situation" and that "it is virtu-
ally impossible to shield jurors from every contact or influence that
might theoretically affect their vote"). We thus cannot say that the
state court’s rejection of Billings’ claim was contrary to or an unrea-
sonable application of clearly established federal law, as determined
by the Supreme Court.6
6Billings also asserts that he is entitled under Remmer to an evidentiary
hearing to explore the potential prejudicial effect the T-shirt may have
had upon the jury. In Remmer, the Supreme Court ordered a hearing
where a juror who had been offered a bribe was investigated by an FBI
agent during trial. 347 U.S. at 230. The Court held that a presumption of
prejudice requiring a hearing arises when there is "any private communi-
cation, contact, or tampering, directly or indirectly, with a juror during
a trial about the matter pending before the jury." Id. at 229. Even making
the dubious assumption that the message on the T-shirt here constituted
a "private communication, contact, or tampering" with the jury within the
meaning of Remmer, Billings is not entitled to a hearing. To obtain a
hearing, Billings must first establish that the unauthorized contact "was
of such a character as to reasonably draw into question the integrity of
the verdict." Stockton v. Virginia, 852 F.2d 740, 743 (4th Cir. 1988). We
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C.
Billings raises one other claim relating to alleged juror misconduct.
Juror Steve Irby stated in a post-trial affidavit that, on the night before
the jury’s sentencing deliberations, he read the Bible at home because
he was "very confused and didn’t know what to do," and that his
study of the Bible helped him conclude that the death penalty was the
"right sentence." J.A. 319. The state MAR court concluded that these
facts, even if proven true, were insufficient to entitle Billings to relief,
id. at 326, and the district court concluded that this ruling was neither
contrary to nor an unreasonable application of clearly established fed-
eral law, id. at 419-21.
The district court did not err. Billings argues that the juror’s con-
sultation of the Bible raises a presumption of prejudice under Remmer
v. United States, in which the Supreme Court held that a presumption
of prejudice arises when there is "any private communication, contact,
or tampering, directly or indirectly, with a juror during a trial about
the matter pending before the jury." 347 U.S. at 229. However, it is
not at all clear that a juror’s consultation of the Bible even constitutes
a "private communication, contact, or tampering" with the jury under
Remmer, which used those terms in the context of a case where a
juror was offered a bribe and was subsequently investigated by an
FBI agent during the trial. As the district court noted, "[t]he United
States Supreme Court has not addressed whether consulting a Bible
prior to jury deliberations constitutes improper extraneous informa-
tion that gives rise to a presumption of prejudice." J.A. 420. It would
not be objectively unreasonable to conclude that Remmer’s presump-
tion of prejudice arises only where a juror has a private contact with
another individual about the matter pending before the jury, and not
simply do not believe that the message conveyed by the T-shirt (it is not
even clear precisely what message, if any, the words "No Mercy — No
Limits" conveyed) is of such a character as to reasonably draw into ques-
tion the integrity of the jury’s decision to convict and recommend a death
sentence. Cf. id. at 745-46 (finding that the integrity of the verdict was
reasonably drawn into question where a restaurant proprietor approached
a group of jurors during lunch, inquired about their deliberations, and
told them he thought they "ought to fry the son of a bitch").
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whenever a juror reads a book that influences his thinking about the
case. It would thus not be objectively unreasonable to conclude that
a juror’s consultation of the Bible in the privacy of his home does not
constitute an improper communication under Remmer. Indeed, this
court has previously concluded that a juror’s recitation of passages
from the Bible during deliberations did not constitute an improper
communication under Remmer. See Burch v. Corcoran, 273 F.3d 577,
591 (4th Cir. 2001) ("We agree with the district court that, under the
circumstances, what occurred here did not constitute an improper jury
communication.").7 We thus conclude that the state court’s rejection
of Billings’ claim was neither contrary to nor an unreasonable appli-
cation of clearly established federal law, as determined by the
Supreme Court.
D.
Billings next claims that his due process rights were violated when
the prosecutor referred to the Bible during the sentencing proceed-
ings. During closing arguments, the prosecutor made the following
remarks:
So, ladies and gentlemen of the jury, I remind you that what
was once written: "And if he smite him with an instrument
of iron [objection by defense counsel overruled] so that he
died, he is a murderer; the murderer shall surely be put to
death. And if he smite him with throwing a stone where he
7The district court characterized the private consultation of the Bible
in this case as "less onerous" than the recitation of passages from the
Bible during deliberations in Burch because here the consultation of the
Bible affected only one juror. J.A. 421. Billings argues that private con-
sultation of the Bible is worse than quoting the Bible during deliberations
because, in the latter case, the jurors can remind each other that they
have a duty to rest their decision on the law and not on the Bible. But
whether the Bible consultation in this case was somehow less or more
onerous than that in Burch is ultimately beside the point. What matters
for purposes of this habeas action is that, in either case, it would not be
objectively unreasonable to conclude that the consultation of the Bible
did not constitute an extraneous contact that raises a presumption of prej-
udice under Remmer.
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may die, and he died, he is a murderer; the murder[er]
should surely be put to death. Or if he smite him with a hand
weapon of wood where he may die and he died, he is a mur-
derer; the murderer shall be put to death. If he thrust him of
hatred or hurl at him by laying of wait that he die, or in
enmity smite him with a hand that he die, he that smote him,
shall surely be put to death, for he is a murderer." For these
things shall be a statute of judgment.
And I argue to you, ladies and gentlemen, that Chapter 15A
of the North Carolina General Statute, Section 2000, the for-
mula of the law that guides you through your issues and rec-
ommendations in your verdict sheet that is the law across
the state of North Carolina, is the statute of judgment in this
case.
Now, as I argued to you from the Old Testament, the
defense may argue the compassion taught in the New Testa-
ment. May I remind you that it’s written in Luke Chapter
20:25: "And he said unto them render therefore under [sic]
Caesar the things which be Caesar’s and unto God the things
which be God’s.
J.A. 170-71.
On direct appeal, Billings raised a due process claim based on the
prosecutor’s reference to the North Carolina death penalty statute as
a "statute of judgment" in conjunction with his quotations from the
Bible. The North Carolina Supreme Court rejected his claim, conclud-
ing that it was procedurally defaulted because Billings did not raise
an objection at trial.8 Id. at 303. The North Carolina Supreme Court
further concluded that "the prosecutor merely contended to the jury
8Billings objected when the prosecutor first began quoting from the
Bible, but he was overruled. He did not lodge a further objection to the
prosecutor’s reference to the North Carolina death penalty statute as a
statute of judgment, and it was apparently this lack of a specific objec-
tion that caused the North Carolina Supreme Court to conclude that Bil-
lings had forfeited his claim by not making a contemporaneous
objection. See J.A. 303.
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that the Bible did not prohibit the death penalty, but he did not ask
the jury to impose divine law," and that "[t]he prosecutor’s argument
was not so grossly improper as to require the trial court to intervene"
in the absence of an objection. Id. The district court concluded that
Billings’ claim was procedurally defaulted, that Billings had not
established cause and prejudice or a miscarriage of justice to excuse
the default, and, in any event, that the prosecutor’s arguments did not
amount to a violation of due process. Id. at 414-15.
On appeal, the parties dispute whether the North Carolina Supreme
Court’s ruling that Billings procedurally defaulted his due process
claim constitutes an independent and adequate state bar precluding
federal habeas review. Billings argues that the ruling was not "inde-
pendent" of his federal claim because, in concluding that the prosecu-
tor’s arguments were not so grossly improper as to require the court
to intervene sua sponte under state law, the North Carolina Supreme
Court applied the federal rule of constitutional law that governs
claims of prosecutorial misconduct.9 See Ake v. Oklahoma, 470 U.S.
68, 75 (1985) ("[W]hen resolution of the state procedural law ques-
tion depends on a federal constitutional ruling, the state-law prong of
the court’s holding is not independent of federal law, and our jurisdic-
tion is not precluded.").
We decline to resolve whether this case is governed by Ake
because we agree with the district court that, even if Billings’ claim
is not procedurally barred, it fails on the merits. Improper prosecu-
torial arguments violate due process only where they render the pro-
ceedings fundamentally unfair. Bennett v. Angelone, 92 F.3d 1336,
1345 (4th Cir. 1996). "In making this determination, we must look at
the nature of the comments, the nature and quantum of the evidence
before the jury, the arguments of opposing counsel, the judge’s
charge, and whether the errors were isolated or repeated." Id. at 1345-
9Under North Carolina law, a court may not grant relief based on
improper prosecutorial arguments unless the defendant raised a contem-
poraneous objection or the prosecutor’s comments "‘so infected the trial
with unfairness as to make the resulting conviction a denial of due pro-
cess.’" State v. Daniels, 446 S.E.2d 298, 318-19 (N.C. 1994) (quoting the
federal standard for reviewing claims of improper prosecutorial argument
applied in Darden v. Wainwright, 477 U.S. 168, 181 (1986)).
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46 (internal quotation marks and citation omitted). In Bennett, this
court addressed Bible-based death penalty arguments similar to those
made by the prosecutor here.10 The court concluded that, while the
prosecutor’s comments were inappropriate because they "improperly
drew on his reading of biblical law to justify the morality of the
state’s death penalty," the defendant’s due process rights were not
violated. Id. at 1346. The court reasoned that the prosecutor’s com-
ments, "viewed in the total context of the trial," were not "sufficiently
egregious to render [the defendant’s] trial fundamentally unfair"
because the evidence as to defendant’s guilt was powerful, the murder
was undoubtedly vile, and the judge instructed the jury that the law-
yers’ comments were not to be considered as evidence. Id. at 1346-47.
All of the Bennett factors are present here. The evidence against
Billings was abundant,11 the rape and murder of the girl were
undoubtedly vile, and the judge instructed the jury that the lawyers’
arguments at sentencing were "not to be considered as your instruc-
tions on the law." J.A. 143. Moreover, Billings’ lawyer also made
Biblical arguments to the jury during the sentencing proceedings. Id.
at 211 (reminding the jury that the Apostle Paul was "a murderer, a
persecutor of Christians" before "he was forgiven and he changed his
ways"). Given the totality of the circumstances, we conclude, as we
did in Bennett, that while the prosecutor may have improperly
invoked the Bible to justify the morality of the state’s death penalty
statute, his argument did not render the proceedings so fundamentally
unfair as to deprive Billings of due process.
Billings also argues that the prosecutor violated his Eighth Amend-
ment rights by referring to the North Carolina death penalty statute as
a "statute of judgment" and by stating that the duty to give all citizens
equal protection of the law was a "prescription" that "call[ed] for
10The prosecutor in Bennett argued that, after the flood, God gave the
"sword of justice" to Noah and that "Noah is now the Government." 92
F.3d at 1346. He argued that "thou shalt not kill" is a proscription against
individuals, not governments. Id. And he quoted the "render unto Caesar"
passage, stating that the "moral [is] follow the law and leave the rest to
Heaven." Id.
11Billings was identified by the boy, who knew him well. And, in any
event, Billings did not deny that he committed the murder.
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imposition of the death penalty." See id. at 171-72. Billings relies on
Caldwell v. Mississippi, 472 U.S. 320 (1985), in which the Supreme
Court held that "it is constitutionally impermissible to rest a death
sentence on a determination made by a sentencer who has been led
to believe that the responsibility for determining the appropriateness
of the defendant’s death rests elsewhere." Id. at 328-29. It is unclear
whether Billings raised a Caldwell claim before the North Carolina
courts, but again, it does not matter because even if the claim is not
procedurally barred, it fails on the merits. In Caldwell, the prosecutor
repeatedly emphasized that the jury’s decision would not be final
because it was subject to automatic review by the state supreme court.
Id. at 325-26. The Court overturned the death sentence, emphasizing
that "the State sought to minimize the jury’s sense of responsibility
for determining the appropriateness of death." Id. at 341. Here, the
prosecutor’s reference to the North Carolina statute as a "statute of
judgment" simply cannot fairly be characterized as an attempt to min-
imize the jury’s sense of responsibility or to mislead the jury into
believing that the ultimate decision as to the death penalty rested else-
where. So too with the prosecutor’s statement that the duty to pre-
scribe equal protection to all citizens called for imposition of the
death penalty. In context, the prosecutor’s comment was part of his
exhortation that the jurors set aside any personal opposition to the
death penalty and faithfully apply the death penalty statute, which
required them to weigh the aggravating and mitigating circumstances.
See J.A. at 171-72 ("[Y]ou should raise your hand now if you can’t
follow the law and if you plan to substitute your personal convictions
against the law . . . because it is a duty to prescribe equal protection
of the law to all citizens, and the prescription here calls for imposition
of the death penalty. The aggravating circumstances outweigh any
mitigating circumstances and they are so substantial, they are compel-
ling. They thrust you in that direction."). We do not believe the prose-
cutor’s comments were intended to, or did in fact, minimize the jury’s
sense of responsibility for the sentencing decision or lead them to
believe that the ultimate decision as to Billings’ sentence rested else-
where. Accordingly, the prosecutor’s comments did not violate the
Eighth Amendment under Caldwell.
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E.
Billings’ final claim is that the state trial court violated his Sixth
Amendment right to conduct his own defense when it submitted a
mitigating circumstance to the jury over his objection. At the instruc-
tion conference preceding the sentencing proceedings, the prosecutor
requested submission to the jury of the statutory mitigating circum-
stance of lack of a significant history of prior criminal activity. J.A.
135. Defense counsel objected, but the court, concluding that it was
required by North Carolina law to submit the mitigating circumstance
to the jury, overruled the objection and included the circumstance
along with the other mitigators listed on the form submitted to the jury.12
Id. at 135-37. Billings contends that the submission of this mitigating
circumstance was prejudicial because the jurors would have consid-
ered his prior criminal record to be significant and would therefore
have considered the evidence for the mitigating circumstance to be
frivolous, and, having concluded that the evidence for this circum-
stance (which was first on the list submitted to the jury) was frivo-
lous, would have tended to consider the evidence for the other
mitigating circumstances frivolous as well.13
12Under North Carolina law, if the evidence supporting a mitigating
circumstance is such that a rational jury could find the circumstance, the
trial court has no discretion and must submit the circumstance to the jury,
regardless of the wishes of the state or the defendant. State v. Lloyd, 364
S.E.2d 316, 323-24 (N.C. 1988), sentence vacated on other grounds, 488
U.S. 807 (1988). The evidence here showed that Billings had previously
been convicted of two felonies (breaking and entering and larceny) and
five misdemeanors (simple affray, resisting an officer, driving with a
revoked license, and two counts of secret peeping). See J.A. 124, 131-32,
305. The state court determined that it was required to submit the miti-
gating circumstance because a rational jury could conclude that Billings’
convictions did not amount to a significant history of prior criminal
activity. See id. at 138-40.
13Billings argues that this prejudicial effect was exacerbated by the fact
that the trial court allowed the prosecutor to tell the jury that the mitigat-
ing factors had been requested by the defendant. See J.A. 154. According
to Billings, this furthered the prosecutor’s ability to construct a "straw
man" out of the mitigator for no significant history of criminal activity.
However, any prejudicial effect that might have arisen from the prosecu-
tor’s statement was countered by the fact that Billings’ attorney informed
the jury that the mitigating factor of no significant history of criminal
activity had not been requested by the defense. See id. at 187. Also, the
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Billings raised his Sixth Amendment claim before the North Caro-
lina Supreme Court, which denied Billings a new sentencing hearing,
but limited its analysis to the state-law question whether a rational
jury could have found that Billings had no significant history of prior
criminal activity. See id. at 305. The court did not consider — or at
least there is no indication that it considered — whether submitting
the mitigating circumstance to the jury over Billings’ objection vio-
lated his Sixth Amendment right to conduct his own defense. Because
the state court did not adjudicate Billings’ Sixth Amendment claim on
the merits, we review the claim without the deference otherwise man-
dated by AEDPA. See 28 U.S.C. § 2254(d) (requiring deference to a
state court’s legal and factual determinations "with respect to any
claim that was adjudicated on the merits in State court proceedings").
However, the rule of Teague — that federal habeas courts may not
announce or apply new rules of constitutional criminal procedure —
remains in force. See Horn v. Banks, 536 U.S. 266, 272 (2002) (per
curiam) (noting that AEDPA does not relieve federal habeas courts
from addressing Teague). Indeed, the district court found Teague to
be dispositive, concluding that a rule of law holding unconstitutional
North Carolina’s mandatory mitigating circumstances regime "would
constitute a new rule of federal law that cannot be announced on
habeas review." J.A. 410.
We agree with the district court. In order to overcome the bar to
relief imposed by Teague, Billings must show that precedent existing
at the time his conviction became final dictated that the submission
of a mitigating circumstance to the jury over the defendant’s objection
violates the defendant’s Sixth Amendment right to control the presen-
tation of his defense. See Teague, 489 U.S. at 301. In other words,
Billings must show that, at the time his conviction became final, all
reasonable jurists would have agreed, based on existing precedent,
that North Carolina’s mandatory mitigating circumstances regime was
premise of Billings’ straw man argument — that the jurors would cer-
tainly consider Billings’ prior criminal record to be significant — is
undermined by the fact that one or more jurors found that Billings had
no significant history of criminal activity and weighed that fact in his
favor. See id. at 268, 302.
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unconstitutional as applied to an objecting defendant. See Butler v.
McKellar, 494 U.S. 407, 415 (1990).
Billings cannot make the required showing. He relies upon the
Supreme Court’s statement in Strickland v. Washington that the
"[g]overnment violates the right to effective assistance when it inter-
feres in certain ways with the ability of counsel to make independent
decisions about how to conduct the defense."14 466 U.S. 668, 686
(1984). For this proposition, which is obviously too open-ended to
dictate the result of any particular case, the Strickland Court cited
Geders v. United States, 425 U.S. 80 (1976), which held that the
defendant’s right to assistance of counsel was violated when the trial
court ordered him not to consult his attorney during an overnight
recess; Herring v. New York, 422 U.S. 853 (1975), which held that
the defendant’s right to assistance of counsel was violated where the
trial court refused to allow defense counsel to make a summation of
the evidence; Brooks v. Tennessee, 406 U.S. 605 (1972), which held
that the defendant’s rights against self-incrimination and to due pro-
cess were violated by the state’s requirement that the defendant testify
first if he testified at all; and Ferguson v. Georgia, 365 U.S. 570
(1961), which held that, where the defendant was allowed to make an
unsworn statement at trial, due process required that defense counsel
be allowed to aid the defendant by eliciting his statement through
questions.
None of these cases is sufficiently analogous to the present circum-
stances to dictate the conclusion that Billings’ right to control the pre-
sentation of his defense was violated by the trial court’s submission
14Billings also relies upon United States v. Davis, 285 F.3d 378 (5th
Cir. 2002). Even assuming that circuit precedent, as opposed to Supreme
Court precedent, is relevant in determining whether a rule is dictated by
precedent under Teague, Davis is unavailing because it does not dictate
the result Billings seeks. Davis held that the defendant’s right to self-
representation under Faretta v. California, 422 U.S. 806 (1975), was
violated when the trial court appointed independent counsel and ordered
him to present mitigating evidence, despite the fact that the defendant
wished to represent himself and argue his innocence rather than present
mitigating evidence. This case, by contrast, does not involve any
infringement of Billings’ Faretta right to proceed pro se.
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of a mitigating circumstance to the jury over his objection. None of
the cases has anything to do with the submission of mitigating cir-
cumstances to the jury during capital sentencing proceedings. And, in
cases where the Court has dealt specifically with that issue, it has
emphasized the importance of ensuring that the jury has access to all
mitigating evidence. See, e.g., Buchanan v. Angelone, 522 U.S. 269,
276 (1998) (stating that "the sentencer may not be precluded from
considering . . . any constitutionally relevant mitigating evidence" and
that "the state may shape and structure the jury’s consideration of mit-
igation so long as it does not preclude the jury from giving effect to
any relevant mitigating evidence"). To be sure, Angelone did not nec-
essarily contemplate the situation in which the defendant, rather than
the state, seeks to block the submission of mitigating evidence. But
that does not change the fact that it remains an open question whether
the state’s important — indeed, constitutionally mandated — interest
in structuring its sentencing proceedings so as to reserve the death
penalty for those most deserving of it must give way to any interest
the defendant may have in keeping a mitigating circumstance from
the jury. To hold North Carolina’s mandatory mitigating circumstance
rule unconstitutional would therefore be to announce a new rule of
constitutional criminal procedure on habeas review in violation of
Teague. Accordingly, we agree with the district court that we cannot
grant Billings relief on this claim.
CONCLUSION
For the reasons stated, the judgment of the district court denying
Billings’ petition for a writ of habeas corpus is affirmed.
AFFIRMED
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