Michael Lee Fullwood v.  R. C. LEE, Warden of Central Prison, Raleigh, North Carolina

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 MICHAEL LEE FULLWOOD,
Petitioner-Appellant,
v. No. 01-13 
R. C. LEE, Warden of Central
Prison, Raleigh, North Carolina,
Respondent-Appellee. 
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CA-98-464-3-MU)
Argued: January 22, 2002
Decided: May 21, 2002
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part, reversed in part, dismissed in part, and remanded by
published opinion. Judge Traxler wrote the majority opinion, in which
Judge Michael joined. Judge Widener wrote an opinion concurring in
part and dissenting in part.
COUNSEL
ARGUED: Kenneth Justin Rose, CENTER FOR DEATH PENALTY
LITIGATION, INC., Durham, North Carolina, for Appellant. Teresa
Harris Pell, Special Deputy Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-

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lee. ON BRIEF: Stephen P. Lindsay, CLONINGER, LINDSAY,
HENSLEY, SEARSON & ARCURI, P.L.L.C., Asheville, North Car-
olina, for Appellant. Roy Cooper, Attorney General of North Caro-
lina, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,
North Carolina, for Appellee.
OPINION
TRAXLER, Circuit Judge:
A North Carolina state court sentenced Michael Lee Fullwood to
die for the murder of Deidre Waters. Fullwood appeals an order of the
district court denying his petition for a writ of habeas corpus. See 28
U.S.C.A. § 2254 (West 1994 & Supp. 2001).1 Fullwood raises a num-
ber of claims, but his primary contention is that he was deprived of
a fair trial because the jury was subjected to improper third party
communications and the jury considered prejudicial factual informa-
tion that was not in evidence. With respect to his Sixth Amendment
claim based on the alleged improper jury contact and improper con-
sideration of facts not in evidence, we conclude that Fullwood "has
made a substantial showing of the denial of a constitutional right." 28
U.S.C.A. § 2253(c)(2) (West Supp. 2001). We grant his application
for a certificate of appealability on those issues, and we reverse the
decision of the district court only to the extent that the district court
denied Fullwood’s request for an evidentiary hearing as to whether
one of the jurors was improperly influenced by her husband and
whether the jury improperly learned that Fullwood had already been
sentenced to death for this murder in a previous capital sentencing
proceeding, so as to deny Fullwood a fair trial. We affirm the remain-
der of the district court’s disposition of that claim. With respect to the
other claims, we conclude that the state court’s refusal to grant relief
was neither contrary to, nor an unreasonable application of, clearly
established federal law as decided by the Supreme Court. We deny
Fullwood’s application for a certificate of appealability with respect
1The amendments to § 2254 effected by § 104 of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214, apply to this case.
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to his other claims and dismiss them. Accordingly, we affirm in part,
reverse in part, dismiss in part and remand.
I.
Fullwood and Deidre Waters were romantically involved for three
and one-half years, and Fullwood was the father of Deidre’s child
Michelle. In March 1985, the relationship between Fullwood and Dei-
dre became strained, and Fullwood eventually began threatening to
kill Deidre.
On March 29, 1985, Deidre went to the home of Michael and
Camille Hawks where Deidre was employed as a day care worker.
The North Carolina Supreme Court summarized the events which
occurred next and the evidence introduced during the guilt phase of
trial as follows:
At 8:20 a.m. Ms. Mills [Deidre’s mother] dropped Deidre
off at the Hawks’ residence. While Ms. Hawks was still at
home, Deidre received calls from defendant’s mother and
from defendant. Deidre told defendant’s mother that she had
taken out the warrant because she was tired of defendant
threatening to cut her head off and to cut her heart out. Ms.
Hawks left her home around 8:30 a.m.
At 9:30 a.m. Robin Ferrell arrived at the Hawks’ home to
leave her child at the day care center. She went to the front
door, found the door locked, and began knocking. When
there was no answer, she went to the front window. The
window was broken. She saw blood in the house and heard
the children crying. Ms. Ferrell phoned Mr. Hawks from a
neighbor’s house; she then returned to the Hawks’ home,
coaxed the children to the window, and lifted them out. The
children told her that Deidre was sleeping on the floor and
that a man was sleeping on the floor with her.
When Mr. Hawks arrived, he and Ms. Ferrell went into
the house. They found Deidre on the living room floor with
her head against the base of the couch. She had no pulse and
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her eyes were open, dilated and glassy. Her neck was "se-
verely cut," and her chest was "completely covered with
blood." Defendant lay across her legs with his head near her
lap. When Mr. Hawks pulled defendant off Deidre, defen-
dant moaned and moved around. Mr. Hawks moved a knife,
which was near defendant, to the foyer. He and Ms. Ferrell
went outside to wait for the police.
At 10:00 a.m. medical personnel arrived and attempted to
give first aid to defendant, who had a wound in his stomach
and wounds on his neck and arms. Defendant fought with
them. When they got him on the stretcher, he said, "Don’t
stab me anymore, don’t stab me anymore." The paramedic
who put defendant in the ambulance expressed the opinion
that defendant was not in shock at that time.
Sergeant Ted Lambert and Detective Walt Roberson of
the Asheville Police Department arrived at the scene at
10:10 a.m. Sergeant Lambert noticed the broken window
and blood on the floor in the foyer. They found the bloody
knife which Mr. Hawks had moved lying in the foyer. Dei-
dre was lying on the living room floor with blood on her
clothing, underneath her and throughout the living room.
The paramedics were treating defendant. They found blood
in the sitting room, on the outside of the first floor bathroom
door and on the walls, mirror and commode in the bath-
room. The bathroom door appeared to have been forced
open. In the dining room they found defendant’s grey jacket,
pieces of the broken window glass, and the plastic from the
window covering. The cord of the dining room telephone
had been pulled from the jack, and the receiver lay on the
floor. There was blood on the jacket, the window glass and
plastic, the phone receiver, the walls and the floor.
In the kitchen they found blood on the floor, the counter,
and the refrigerator. A bloody butcher knife with defen-
dant’s palm print on it lay on the kitchen counter, and a
steak knife with traces of blood on it lay under the high
chair. There was also blood on the stairway and on the
upstairs phone.
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Lieutenant William Gibson of the Asheville Police
Department took blood scrapings from many areas in the
house. The tests revealed that the blood on the butcher knife
was consistent with that of defendant and Deidre, the blood
on the knife in the foyer was defendant’s, and the steak
knife did not have enough blood on it that the source of the
blood could be traced. The blood throughout the house was
consistent with that of either defendant or Deidre.
The autopsy on Deidre’s body disclosed twenty-four sig-
nificant wounds, most of which were slash wounds. Two of
the wounds were capable of causing death: a deep slashing
wound on her neck which cut her carotid artery, and a pene-
trating wound on her anterior chest which went into her
right lung. Dr. George Lacy, the pathologist, testified that
Deidre could have survived from fifteen to forty-five min-
utes after receiving the fatal wounds. The Chief Medical
Examiner, Dr. Page Hudson, testified that, in his opinion,
she died within a few minutes after receiving these wounds.
Dr. Frank Edwards, an emergency room doctor, testified
that defendant was in shock when he was admitted to the
hospital. Dr. Joseph Noto, the surgeon who treated defen-
dant, testified that defendant had a series of parallel superfi-
cial cuts on his wrists and neck. He had a stab wound in his
abdomen. Dr. Noto opined that because the wounds were
straight and precise, the neck, wrist and abdomen wounds
were all self-inflicted. Dr. Hudson agreed that the wrist and
neck wounds were self-inflicted and said that it was "more
likely than not" that the abdominal wound was self-inflicted,
although "it could have been inflicted by someone else."
Grover Matthews, a police detective, testified that while
defendant was in the emergency room he said that his girl-
friend had stabbed him. The trial court did not allow this
statement into evidence.
From the circumstantial evidence, the State developed the
theory that defendant broke the dining room window and
came into the house. Deidre, who was trying to phone for
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help, tried to keep him out. Defendant went to the kitchen
and got the butcher knife. Deidre ran to the bathroom and
locked herself in, but defendant forced the door open and
began stabbing her. She managed to get away and ran into
the living room, where he caught her and inflicted the fatal
wounds. He then selected a smaller knife from the kitchen
and inflicted wounds upon himself.
The defense conceded that defendant had killed Deidre
and asked for a verdict of guilty of second degree murder.
Defense counsel argued that defendant was in an emotional
turmoil, was stabbed in the stomach by Deidre, and did not
premeditate or deliberate regarding the killing. Defense
counsel presented several character witnesses for defendant.
A clinical correctional psychologist testified to defendant’s
low IQ and opined that defendant’s relationships with Dei-
dre and Michelle were "the foundation of his life" and that
he could not deal with his perception that Deidre was leav-
ing him and taking Michelle with her.
State v. Fullwood, 373 S.E.2d 518, 522-24 (N.C. 1988) ("Full-
wood I"), vacated, 494 U.S. 1022 (1990).
The jury was instructed on first degree murder on the basis of pre-
meditation and deliberation, as well as second degree murder. The
jury found Fullwood guilty of first degree murder.
Fullwood’s trial then proceeded to the sentencing phase, where the
jury determined that the State had proven the aggravating circum-
stance that the murder was especially heinous, atrocious and cruel.
See N.C. Gen. Stat. § 15A-2000(e)(9). In turn, the jury concluded that
there were seven mitigating circumstances present.2 The jury ulti-
2These were as follows:
(1) the murder was committed while defendant was under the
influence of a mental or emotional disturbance; (2) defendant’s
immaturity or limited mental capacity at the time of the commis-
sion of the offense; (3) defendant sought the assistance of voca-
tional rehabilitation to prepare himself for better employment;
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mately determined that the mitigating circumstances were not suffi-
cient to outweigh the aggravating circumstance and recommended
that Fullwood’s sentence be fixed at death.
The Supreme Court of North Carolina affirmed Fullwood’s convic-
tion and sentence on direct appeal. See id. at 539. The United States
Supreme Court, however, vacated Fullwood’s sentence, see Fullwood
v. North Carolina, 494 U.S. 1022 (1990), and remanded for the North
Carolina Supreme to reconsider Fullwood’s sentence in light of
McKoy v. North Carolina, 494 U.S. 433 (1990). On remand, the
North Carolina Supreme Court held that, under McKoy, the jury had
been improperly instructed during the sentencing phase that it was
required to find the existence of a mitigating circumstance unani-
mously before such circumstance could be considered by any juror.
See State v. Fullwood, 404 S.E.2d 842, 843 (N.C. 1991) ("Fullwood
II"). The court determined that the sentencing error was not harmless
and remanded for a new capital sentencing proceeding. See id. at 845.
At resentencing, the State again submitted the "especially heinous,
atrocious, and cruel" aggravating factor to the jury. The jury con-
cluded unanimously that this aggravating factor was present.
As did the original jury, the jury on resentencing determined that
several mitigating circumstances were present as well: Fullwood com-
mitted the murder "while . . . under the influence of mental or emo-
tional disturbance"; "[a]t the time of the murder . . . [Fullwood]
suffered from alcohol and substance abuse"; Fullwood did not have
a conviction for "any felony involving violence" prior to the date of
the murder; Fullwood did not have a conviction for "any crime
involving violence to another person" prior to the date of the murder;
(4) defendant sought the assistance of the Human Resources
Development Program of a technical college to prepare himself
for better employment; (5) defendant has tried to maintain
employment despite limited abilities; (6) defendant expressed
remorse and sorrow for what he had done; and (7) the offense
was committed by means of a weapon or weapons acquired at
the Hawks’ residence and not taken there by defendant.
Fullwood I, 373 S.E.2d at 524.
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Fullwood’s father abused alcohol and physically abused his mother;
Fullwood "has not received any disciplinary actions or write-ups in
the nine and one-half years since he has been incarcerated"; Fullwood
"has been a model inmate at Central Prison"; Fullwood "has consis-
tently acted in a mature, responsible manner when dealing with prison
personnel"; Fullwood "has shown determination in pursuing his
G.E.D., despite borderline intellectual functioning"; Fullwood "has
grown and matured spiritually in his religious faith since he has been
at Central Prison; and Fullwood "has shown the capacity to continue
to adjust well to prison life." J.A. 145-47. The jury also found the fact
that Fullwood suffered race-related violence at a young age to be of
mitigating value.
The jury also rejected a number of mitigating circumstances sub-
mitted by the defense: that Fullwood "has no significant history of
prior criminal activity"; that Fullwood’s capacity "to appreciate the
criminality of his conduct or to conform his conduct to the require-
ments of law was impaired"; that Fullwood "had limited mental
capacity at the time of the offense"; that Fullwood’s IQ was within
the "borderline range of intellectual functioning"; that the murder was
committed with "knives which were already at the scene and not
brought" by Fullwood; and that Fullwood "has expressed remorse and
sorrow for what he has done." J.A. 145-47.
The jury found beyond a reasonable doubt that the mitigating cir-
cumstances failed to outweigh the aggravating circumstance and that
the aggravating circumstance was sufficiently substantial to support
the imposition of a death sentence. Following the jury’s recommenda-
tion, the state court imposed a sentence of death. Fullwood appealed
his sentence to the North Carolina Supreme Court, which affirmed.
See State v. Fullwood, 472 S.E.2d 883 (N.C. 1996) ("Fullwood III").
The United States Supreme Court denied Fullwood’s petition for a
writ of certiorari.
Fullwood then filed a Motion for Appropriate Relief ("MAR") in
Buncombe County Superior Court, seeking post-conviction relief.
The court issued an order denying Fullwood’s requested relief and
determined that an evidentiary hearing was unnecessary. Fullwood
sought review of the state trial court’s denial of his MAR by petition-
ing the North Carolina Supreme Court for a writ of certiorari. His
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petition was denied. See State v. Fullwood, 516 S.E.2d 599 (N.C.
1998).
Fullwood next petitioned for relief in district court pursuant to sec-
tion 2254. The district court granted the State’s motion for summary
judgment on each of Fullwood’s claims and concluded that the issues
raised by Fullwood did not require a hearing.
Fullwood now appeals, raising five grounds for relief. Because
each of these claims was adjudicated on the merits in state court, we
apply a deferential standard of review: whether "the adjudication of
the claim . . . 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.A.
§ 2254(d)(1). The Supreme Court has explained that a state court
decision is "contrary to" clearly established Supreme Court precedent
when "the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or . . . the state court
decides a case differently than [the] Court has on a set of materially
indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362,
413 (2000). A state court decision rests on an "unreasonable applica-
tion" of clearly established Supreme Court precedent when "the state
court identifies the correct governing legal principle from [the]
Court’s decisions but unreasonably applies that principle to the facts
of the prisoner’s case." Id. Applying this deferential standard of
review, we conclude that the state court’s adjudication of all of Full-
wood’s claims except one was neither contrary to, nor an unreason-
able application of, clearly established federal law as decided by the
Supreme Court. With respect to Fullwood’s claim that one of the
jurors was subject to outside influence and pressure, we remand for
the district court to conduct an evidentiary hearing on this narrow
issue.
II.
Fullwood contends that he was deprived of a fair trial at his resen-
tencing, as guaranteed by the Due Process Clause of the Fourteenth
Amendment, because the resentencing jury, which was not seques-
tered, was subject to improper contact with third parties and consid-
ered extraneous information that the parties did not introduce at trial
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and the court did not provide to them. See Smith v. Phillips, 455 U.S.
209, 217 (1982) ("Due process means a jury capable and willing to
decide the case solely on the evidence before it."). Fullwood argues
that we must vacate his sentence or, at a minimum, afford him an evi-
dentiary hearing on his claims of juror misconduct.
In support of this claim, Fullwood relies solely upon the post-trial
affidavit of Laura Booth who served as a juror during Fullwood’s
resentencing. Defense counsel obtained the affidavit during the pro-
cess of conducting post-trial juror interviews.3 Juror Booth’s affidavit
contains allegations that fall into essentially two categories. One is
that of undue influence or pressure upon a juror by a nonjuror. The
other involves the consideration by the jury of information not pre-
sented by the parties or the court during trial, which can be divided
further into case-specific factual information and general information
about the legal process. We consider each in turn.
A. Outside Influence By a Third Party
According to Juror Booth, Juror Joyce Austin was "strongly influ-
enced by . . . her husband [who] was strongly pro-death penalty" and
told Booth and other jurors that her husband "was constantly telling
[Austin] during the trial and during deliberations that she should con-
vict [Fullwood] and sentence him to death." J.A. 159. Booth also
offered her opinion, by affidavit testimony, that "[i]t was obvious . . .
that the pressure brought upon [Austin] by her husband caused her to
vote exactly the way he wanted her to." J.A. 159. Fullwood argues
that Juror Booth’s affidavit establishes that this improper contact with
a third person actually influenced the jury’s deliberations by causing
one juror to choose a death sentence, which would require us to
vacate his death sentence. Alternatively, Fullwood contends that
because he has presented evidence that a juror was "constantly" sub-
jected to her spouse’s opinion that she should vote for a death sen-
tence, he is, at a minimum, entitled to an evidentiary hearing on this
3The two attorneys who represented Fullwood during the resentencing
proceedings and interviewed the jurors afterwards also submitted affida-
vits. With respect to this issue, however, these affidavits added nothing
new, merely repeating what was contained in the Booth affidavit.
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issue.4 In rejecting Fullwood’s claim, the state MAR court stated three
conclusions:
1. Juror’s Affidavits to impeach a [jury’s] deliberation are
not favored by the Court.
2. [A juror’s knowledge] of a prior death penalty in a re-
sentencing hearing does not in itself mean that Juror could
not give fair consideration to a life sentence.
4The current emphasis of Fullwood’s claim seems to be slightly differ-
ent than it was in state court. Accordingly, we are compelled to consider
whether Fullwood properly exhausted this claim. See 28 U.S.C.A.
§ 2254(b)(1)(A) (West Supp. 2001) ("An application for a writ of habeas
corpus . . . shall not be granted unless . . . the applicant has exhausted
the remedies available in the courts of the State . . . ." (emphasis added)).
In state court, Fullwood framed the issue primarily as one of juror mis-
conduct based on the jurors’ purportedly untruthful affirmations during
voir dire that they would be able to follow the court’s instructions and
confine their deliberations to the evidence submitted at trial. In Full-
wood’s application in district court for relief under § 2254, he framed
this issue in much the same way.
The exhaustion requirement is subject to waiver, but the state must do
so "expressly" and "through counsel." 28 U.S.C.A. § 2254(b)(3). Here,
the state conceded in district court that the exhaustion requirement had
been met, but, as noted, Fullwood summarized this claim in district court
in much the same way as he did in state court. Therefore, we must deter-
mine whether Fullwood’s claim has changed in any substantive way
from the claim he presented in state post-conviction relief proceedings.
"[T]he exhaustion requirement is satisfied so long as a claim has been
‘fairly presented’ to the state courts." Baker v. Corcoran, 220 F.3d 276,
288 (4th Cir. 2000), cert. denied, 531 U.S. 1193 (2001) (quoting Picard
v. Connor, 404 U.S. 270, 275 (1971)). To do so, the petitioner must pre-
sent to the state court "both the operative facts and the controlling legal
principles." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (inter-
nal quotation marks omitted). Although Fullwood did not articulate his
argument in state court in precisely the same fashion as he did in his
briefs to this court, we are satisfied that the substance of his claim was
fairly presented to the state courts. The state does not argue to the con-
trary.
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3. . . . The Court, from the Juror’s Affidavit and assuming
it to be true, cannot find sufficient external influences that
have an effect on the outcome of the verdict in this case to
warrant the granting of a new trial.
J.A. 164. Presuming that Fullwood had presented all of his evidence
on the issue through the affidavits he submitted, the court concluded
that an evidentiary hearing was unnecessary.
The state court did not specifically identify the legal principles
guiding its analysis or cite the precedents upon which it relied. We are
unable to ascertain the state court’s rationale from the relatively sum-
mary nature of its disposition of this claim. When the state court deci-
sion being reviewed by a federal habeas court fails to provide any
rationale for its decision, we still apply the deferential standard of
review mandated by Congress to determine whether the decision ulti-
mately reached by the state court was "contrary to, or involved an
unreasonable application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States." 28 U.S.C.A.
§ 2254(d)(1) (West Supp. 2001). See Bell v. Jarvis, 236 F.3d 149,
158, 163 (4th Cir. 2000) (en banc), cert. denied, 122 S. Ct. 74 (2001).
In the absence of any reasoning from the state court, however, we
must conduct an independent review of the record and the applicable
law to make the "contrary to" or "unreasonable application" determi-
nations. See id. at 163. Because we have no clear indication of the
court’s reasoning here, we will independently review the record and
the law to make our "contrary to" or "unreasonable application" deter-
minations. See Harris v. Stovall, 212 F.3d 940, 943 n.1 (6th Cir.
2000) ("Where a state court decides a constitutional issue by form
order or without extended discussion, a habeas court should then
focus on the result of the state court’s decision, applying the standard
articulated" by the AEDPA), cert. denied, 532 U.S. 947 (2001).
The Sixth Amendment guarantees a criminal defendant the right to
an impartial jury. "In essence, the right to jury trial guarantees to the
criminally accused a fair trial by a panel of impartial, indifferent
jurors. The failure to accord an accused a fair hearing violates even
the minimal standards of due process." Irvin v. Dowd, 366 U.S. 717,
722 (1961) (internal quotation marks omitted). The Supreme Court
has clearly stated that private communications between an outside
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party and a juror raise Sixth Amendment concerns. See Parker v.
Gladden, 385 U.S. 363, 364 (1966) (per curiam). "[P]rivate talk, tend-
ing to reach the jury by outside influence" is constitutionally suspect
because it is not subject to "full judicial protection of the defendant’s
right of confrontation, of cross-examination, and of counsel." Id.
(internal quotation marks omitted). Extrajudicial remarks directed at
influencing a juror’s resolution of an issue under deliberation, even
if the remarks are isolated, may contravene the constitutional guaran-
tee to a fair trial. See id. at 363-65 (finding habeas petitioner was
deprived of his right to an impartial jury where the bailiff commented
to two jurors during trial that the "wicked fellow [petitioner], he is
guilty" and that "[i]f there is anything wrong [in finding petitioner
guilty] the Supreme Court will correct it" (first and third alterations
in original)); Stockton v. Virginia, 852 F.2d 740, 743-46 (4th Cir.
1988) (granting habeas relief where jurors were subject to remarks of
a local restaurant owner who suggested they "fry the son of a bitch").
And, if even a single juror’s impartiality is overcome by an improper
extraneous influence, the accused has been deprived of the right to an
impartial jury. See Parker, 385 U.S. at 366 ("[P]etitioner was entitled
to be tried by 12, not 9 or even 10, impartial and unprejudiced
jurors.").
Because the potential for mischief is so great when a third party
establishes private, extrajudicial contact with a juror, the Supreme
Court adopted the rule that "any private communication [or] contact
. . . with a juror during a trial about the matter pending before the jury
is . . . presumptively prejudicial, if not made in pursuance of known
rules of the court and the instructions and directions of the court made
during the trial, with full knowledge of the parties." Remmer v. United
States, 347 U.S. 227, 229 (1954). The government bears the burden
of rebutting the presumption of prejudice by demonstrating that "such
contact with the juror was harmless to the defendant." Id. Fullwood
argues that he is entitled to a presumption of prejudice that the state
has failed to rebut.
We have applied Remmer in the federal habeas context. See Stock-
ton, 852 F.2d at 743.5 Under Stockton, when a habeas petitioner bases
5Remmer was a direct review case arising from a federal conviction,
causing some jurists to question the applicability of Remmer’s presump-
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a juror bias claim on improper communication between, or improper
influence exerted by, a nonjuror upon a juror, as Fullwood does here,
he "must first establish both that an unauthorized contact was made
and that it was of such a character as to reasonably draw into question
the integrity of the verdict . . . . [T]he government [then] bears the
burden of demonstrating the absence of prejudice." Stockton, 852
F.2d at 743; see also Burch v. Corcoran, 273 F.3d 577, 591 (4th Cir.
2001) ("It is clear that the right to an impartial jury belongs to the
defendant, and that a rebuttable presumption attaches to an impermis-
sible communication." (alteration and internal quotation marks omit-
ted)), petition for cert. filed, March 27, 2002 (No. 01-9358); Howard
v. Moore, 131 F.3d 399, 422 (4th Cir. 1997) (en banc).
However, "due process does not require a new trial every time a
juror has been placed in a potentially compromising situation," since
"it is virtually impossible to shield jurors from every contact or influ-
ence that might theoretically affect their vote." Smith, 455 U.S. at
217. Although intrusions into the jury’s deliberative process create the
potential for depriving a defendant of the constitutional guarantee of
an impartial jury, the Supreme Court has generally found harmless
error review appropriate. See United States v. Olano, 507 U.S. 725,
738 (1993) ("We generally have analyzed outside intrusions upon the
jury for prejudicial impact."); Parker, 385 U.S. at 363-65 (concluding
that bailiff’s comment to two jurors that the "wicked fellow [peti-
tioner], he is guilty" and that "[i]f there is anything wrong [in finding
petitioner guilty] the Supreme Court will correct it" was not harmless)
(first and third alterations in original); Remmer, 347 U.S. at 230
(returning case for harmless error determination where unidentified
person proposed a bribe to a juror, triggering an inquiry, of which
defendant was unaware, by the Federal Bureau of Investigation); Tur-
ner v. Louisiana, 379 U.S. 466, 473-74 (1965) (concluding that defen-
dant suffered prejudice from officers’ association with jurors in their
charge during a case for which the officers were key prosecution wit-
nesses and their testimony conflicted with that of the accused); Smith,
tive prejudice rule in federal habeas proceedings. See Crease v. McKune,
189 F.3d 1188, 1193 (10th Cir. 1999) ("We disagree that Remmer estab-
lished the rule that any ex parte communication with a juror presump-
tively deprives a criminal defendant of due process under the Fourteenth
Amendment.").
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455 U.S. at 215 (observing, in an implied juror bias case, that "the
remedy for allegations of juror partiality is a hearing in which the
defendant has the opportunity to prove actual bias"); see also Sher-
man v. Smith, 89 F.3d 1134, 1139 (4th Cir. 1996) (en banc)
("Following the Supreme Court’s lead, this court has repeatedly
examined instances of juror misconduct and bias for harmlessness.").
Thus, even if the state court’s determination that there is no consti-
tutional error was "contrary to" or "an unreasonable application of"
Supreme Court precedent, we are not permitted to grant habeas relief
unless we are convinced that the error had a "substantial and injurious
effect or influence in determining the jury’s verdict." Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (internal quotation marks
omitted). If we are in "grave doubt" as to the harmlessness of an error,
the habeas petitioner must prevail. See O’Neal v. McAninch, 513 U.S.
432, 436 (1995). "Grave doubt" exists when, in light of the entire
record, the matter is so evenly balanced that the court feels itself in
"virtual equipose" regarding the error’s harmlessness. Id. at 435. We
have applied the harmless error standard enunciated in Brecht to
claims of juror bias or misconduct on several occasions. See Bacon
v. Lee, 225 F.3d 470, 485 (4th Cir. 2000) (applying Brecht to claim
that jurors improperly considered race during deliberations in a North
Carolina capital trial), cert. denied, 532 U.S. 950 (2001); Fitzgerald
v. Greene, 150 F.3d 357, 365 (4th Cir. 1998) (concluding that even
if one juror’s bias resulted in a constitutional deprivation, "the princi-
ples of comity, federalism, and finality prevent us from overturning
[petitioner’s] convictions and sentence, unless we are convinced that
the error had substantial and injurious effect or influence in determin-
ing the verdict" as required by Brecht (internal quotation marks and
alteration omitted)); Howard v. Moore, 131 F.3d 399, 422 (4th Cir.
1997) (en banc) (concluding that alleged ex parte communications
with the jury had no "substantial and injurious effect or influence in
determining the jury’s verdict" (internal quotation marks omitted));
Sherman v. Smith, 89 F.3d 1134, 1140-41 (4th Cir. 1996) (en banc)
(applying Brecht to juror’s unauthorized crime site visit).
1. Actual Influence
Fullwood contends that the Booth affidavit entitles him to habeas
relief because it demonstrates that the verdict was actually influenced
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by improper external influence. With respect to Juror Austin, the
Booth affidavit states that "[i]t was obvious to me that the pressure
brought upon her by her husband caused her to vote exactly the way
he wanted her to." J.A. 159. We conclude that Fullwood cannot use
this portion of the Booth affidavit to impeach the jury’s verdict. In
order to protect the finality and integrity of verdicts and to guard
against the harassment of jurors, a party seeking to invalidate a ver-
dict may not rely upon evidence of "a juror’s mental process in con-
nection with the verdict." United States v. Cheek, 94 F.3d 136, 143
(4th Cir. 1996); see Fed. R. Evid. 606(b); Tanner v. United States,
483 U.S. 107, 121 (1987). The Federal Rules of Evidence impose
strict limits on the type of juror testimony that may be used to invali-
date a verdict. See Fed. R. Evid. 606(b); Bacon, 225 F.3d at 485
(applying Fed. R. Evid. 606(b) to capital habeas proceedings); Stock-
ton, 852 F.2d at 743-44 (same); see also Gosier v. Welborn, 175 F.3d
504, 510-11 (7th Cir. 1999) (same). Rule 606(b) "is grounded in the
common-law rule against admission of jury testimony to impeach a
verdict." Tanner, 483 U.S. at 121. It prohibits a juror from testifying
as to "the effect of anything upon that or any other juror’s mind or
emotions as influencing the juror . . . or concerning the juror’s mental
processes in connection therewith." Fed. R. Evid. 606(b). A juror may
testify, however, as to "whether extraneous prejudicial information
was improperly brought to the jury’s attention or whether any outside
influence was improperly brought to bear upon any juror." Id. Thus,
"juror testimony concerning the effect of the outside communication
on the minds of the jurors is inadmissible." Stockton, 852 F.2d at 744
(emphasis added).
North Carolina law imposes the same strict limits on the type of
juror testimony that may be offered to impeach a verdict. See N.C.
Gen. Stat. § 15A-1240 ("[N]o evidence may be received to show the
effect of any statement, conduct, event, or condition upon the mind
of a juror or concerning the mental processes by which the verdict
was determined."). Under North Carolina law, jurors may testify as
to the fact that external prejudicial communications were made, but
not as to "the subjective effect those matters had on their verdict."
North Carolina v. Lyles, 380 S.E.2d 390, 394 (N.C. Ct. App. 1989).6
6Of course, the resolution of this issue does not turn upon our reading
of Lyles, which we cite simply for the general proposition that North
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Since these principles preclude Juror Austin from testifying herself
as to the effect of her husband’s alleged comments on her internal
thought processes in connection with her vote, they apply all the more
to the hearsay testimony of Juror Booth, who was not only testifying
about Austin’s internal thought processes but was also speculating
about how Austin arrived at her decision. We must therefore reject
Fullwood’s contention that he presented unopposed evidence that an
improper external influence actually resulted in a death sentence and
is therefore entitled to habeas relief.
2. Evidentiary Hearing
We turn to the question of whether Fullwood is entitled to an evi-
dentiary hearing based on the assertion in the Booth Affidavit that
Austin’s husband strongly believed in the death penalty as a general
proposition and told Austin throughout the trial that she should vote
for a death sentence in Fullwood’s case.
A district court may not grant an evidentiary hearing to a habeas
petitioner if the petitioner "failed to develop the factual basis of a
claim" in state court unless certain statutory requirements are satis-
fied. See 28 U.S.C.A. § 2254(e)(2). The state does not suggest that
Fullwood "failed to develop" the factual basis of his claim as that
phrase is used in section 2254(e)(2). See Williams (Michael) v. Tay-
lor, 529 U.S. 420, 431-37 (2000). Thus, section 2254(e)(2) presents
no bar to an evidentiary hearing. See id. at 430 (explaining that sec-
tion 2254(e)(2) "applies only to prisoners who have failed to develop
Carolina law tracks the basic outline of Federal Rule of Evidence 606(b).
Even a proper application of a state rule limiting a juror’s ability to
impeach his own verdict can give rise to a Sixth Amendment claim of
improper jury conduct. See Doan v. Brigano, 237 F.3d 722, 733-34 (6th
Cir. 2001) (holding that the application of Ohio Rule 606(b) by the state
court to bar evidence of an out-of-court experiment by a juror failed to
sufficiently preserve petitioner’s Sixth Amendment rights). In any event,
the state court did not reject Fullwood’s claim for relief on state evidenti-
ary grounds. Rather, the question is whether the district court should hold
a hearing on Fullwood’s claim for relief. We believe our decision in
Stockton makes clear that Fullwood may present the portion of the Booth
Affidavit previously specified to support his claim for relief.
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the factual basis" in state court). But, even though section 2254(e)(2)
presents no bar to a hearing, an evidentiary hearing is not automatic
— the district court is permitted to hold a hearing only if "the peti-
tioner alleges additional facts that, if true, would entitle him to relief."
McCarver v. Lee, 221 F.3d 583, 598 (4th Cir. 2000). "[E]ven if [the
petitioner’s] claim is not precluded by § 2254(e)(2), that does not
mean he is entitled to an evidentiary hearing — only that he may be."
McDonald v. Johnson, 139 F.3d 1056, 1059-60 (5th Cir. 1998). More-
over, petitioner must establish one of the six factors set forth in Town-
send v. Sain, 372 U.S. 293, 312 (1963).7 See Fisher v. Lee, 215 F.3d
438, 454 (4th Cir. 2000), cert. denied, 531 U.S. 1095 (2001).
First, we conclude that because Fullwood has raised troubling alle-
gations of improper external influence on the jury but was not
afforded a hearing to develop the issue, he has satisfied at least one
of the Townsend factors. See Townsend, 372 U.S. at 313 (requiring a
hearing when the material facts are not adequately developed in state
court).
Second, we conclude that Fullwood has alleged facts that, if true,
might well entitle him to relief. Of course, the mere fact that a juror’s
spouse may have a particularly strong philosophical or ideological
leaning does not alone present the potential to undermine the integrity
of the deliberative process. Such would not give rise to a presumption
of prejudice since "the beliefs, biases, and preferences of every juror
may be explored and exposed by the defendant at voir dire." See
Stockton, 852 F.2d at 744 (distinguishing between "juror impairment
7The six Townsend factors are:
(1) the merits of the factual dispute were not resolved in the state
hearing; (2) the state factual determination is not fairly supported
by the record as a whole; (3) the fact-finding procedure
employed by the state court was not adequate to afford a full and
fair hearing; (4) there is a substantial allegation of newly discov-
ered evidence; (5) the material facts were not adequately devel-
oped at the state-court hearing; or (6) for any reason it appears
that the state trier of fact did not afford the habeas applicant a
full and fair fact hearing.
372 U.S. at 313.
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or predisposition" and the more serious danger of an "extraneous
communication").
The allegations here, however, concern more than predisposition.
The allegations contained in the Booth affidavit suggest that Juror
Austin may have been pressured throughout the trial to impose a
death sentence, depriving Fullwood of his right to twelve impartial
jurors. Indeed, if true, the allegations concerning Juror Austin are of
a type that "draw into question the integrity of the verdict," Stockton,
852 F.2d at 743, and give rise to a presumption of prejudice. Given
the paucity of the record and the lack of any factual findings, how-
ever, we are unable to determine whether an outside influence upon
Juror Austin had a "substantial and injurious effect or influence in
determining the jury’s verdict." Brecht, 507 U.S. at 637 (internal quo-
tation marks omitted). Accordingly, we remand for an evidentiary
hearing on the issue of whether the contact between Juror Austin and
her husband throughout the trial deprived Fullwood of a fair trial and
had a "substantial and injurious effect" on the verdict.
B. Consideration of Extraneous Facts Related to
Fullwood’s Case
We also conclude that during Fullwood’s evidentiary hearing the
district court should explore Fullwood’s allegations that the jury con-
sidered, in violation of the Sixth Amendment, prejudicial information
about his case that was never introduced into evidence or provided to
the jury during trial. According to the Booth affidavit, "[t]he jury
became aware from outside sources that Mr. Fullwood had already
been sentenced to death by another jury. The jury became aware that
Mr. Fullwood’s original death sentence had been reversed because of
some technicality involving a mistake the trial judge had made." J.A.
159. This allegation implicates Fullwood’s Sixth Amendment rights
because among the protections that the Sixth Amendment provides is
the right to an impartial jury that arrives at a verdict "based upon the
evidence developed at trial." Irvin v. Dowd, 366 U.S. 717, 722 (1961);
see Turner v. Louisiana, 379 U.S. 466, 472-73 (1965) ("[T]he evi-
dence developed against a defendant shall come from the witness
stand in a public courtroom where there is full judicial protection of
the defendant’s right of confrontation, of cross-examination, and of
counsel." (internal quotation marks omitted)).
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As we noted previously, a petitioner who seeks to invalidate a ver-
dict that has already withstood challenges on direct review and state
collateral review must introduce competent evidence that there was
juror misconduct in the first place. See Howard, 131 F.3d at 422.
Thus, Fullwood’s allegations relating to the jury’s alleged awareness
of his prior death sentence must demonstrate that "extraneous prejudi-
cial information" was improperly presented to the jury’s attention.
United States v. Acker, 52 F.3d 509, 516 (4th Cir. 1995). If the infor-
mation was both extraneous and prejudicial, Fullwood still may
obtain relief only if it "had substantial and injurious effect or influ-
ence in determining the jury’s verdict." Brecht, 507 U.S. at 637.
Fullwood has made a sufficient threshold showing that these facts
were extraneous, prejudicial and improperly brought to the jury’s
attention so as to warrant an evidentiary hearing. Although Fullwood
does not specifically identify the source of these facts, this informa-
tion is "extraneous" because, so far as we can tell, 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. See United States v.
Swinton, 75 F.3d 374, 381 (8th Cir. 1996) (observing that "[a]lthough
jurors are expected to bring commonly known facts to bear in assess-
ing the facts presented for their consideration, resort by a juror to any-
thing other than common knowledge or record facts might be held to
violate" the Sixth Amendment). And, generally speaking, such infor-
mation is prejudicial in nature. Cf. Arthur v. Bordenkircher, 715 F.2d
118, 119 (4th Cir. 1983) ("[W]e are hard pressed to think of anything
more damning to an accused than information that a jury had previ-
ously convicted him for the crime charged." (internal quotation marks
omitted)).
Because no evidentiary hearing has ever been held on this issue,
there are also insufficient additional facts for us to determine whether
the jury’s awareness of Fullwood’s previous sentence, if true, "had
substantial and injurious effect or influence in determining the jury’s
verdict." Brecht, 507 U.S. at 637.8 Accordingly, the district court, in
8As previously stated, Fullwood can impeach the verdict with juror tes-
timony as to the fact that extraneous information was given to the jury
but not as to the subjective effect of the information on the jury’s deliber-
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conducting the evidentiary hearing, should also develop the issue of
whether the jury’s alleged awareness of Fullwood’s prior death sen-
tence deprived him of a fair trial and had a "substantial and injurious
effect" on the verdict.9
C. Consideration of General Outside Information
Finally, Fullwood supports his Sixth Amendment claim with two
additional allegations contained in Juror Booth’s affidavit. The first
is that the jurors allegedly "became aware that any decision we made
would be appealed," and that "this information was revealed to us by
one of the other jurors who had learned this from an outside source."
J.A. 159. The second is that the jurors discussed whether Fullwood
would be eligible for parole if the jury recommended a life sentence:
During deliberations, the jury became aware from outside
sources that life imprisonment did not mean life. . . . [O]ne
of the jurors had a family member that either worked at the
courthouse or was involved in the law in some way. Accord-
ing to the juror’s spouse or family member, a life sentence
meant that the person would be paroled in 20-25 years. We
discussed how Mr. Fullwood had already been in jail since
the murder and that given credit for the time he had been in
ative process. See Stockton, 852 F.2d at 744. Accordingly, Juror Booth’s
statement that the knowledge that Fullwood had received a death sen-
tence the first time "lessen[ed] our sense of responsibility . . . because we
felt that twelve other rational people had sentenced Mr. Fullwood to
death," J.A. 159, would not be admissible to show a substantial and inju-
rious effect upon the verdict.
9Our colleague correctly points out that Fullwood agreed to the seating
of Juror Bell who indicated during voir dire that he had prior knowledge
of the case. However, he, like all of the jurors, was instructed by the trial
judge prior to voir dire that "[the jurors were] to take the evidence from
this courtroom and no other source." J.A. 38. If in fact Bell was the juror
who disclosed the fact of the prior death sentence, then the effect of the
judge’s instruction will complicate the issues presented to us. We there-
fore believe the better course is to direct that an evidentiary hearing be
held to identify exactly what happened.
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that he would be released on a life sentence in another 10-
15 years.
J.A. 159-60.10 With respect to these particular allegations, Fullwood
has not made a sufficient showing that would entitle him to an eviden-
tiary hearing. First, the Booth Affidavit fails to establish that the
jurors’ alleged awareness that Fullwood would appeal any decision it
handed down was improperly communicated to the jury or that it was
extraneous information at all. Not only is the availability of a criminal
appeal commonly known information, but at least one of Fullwood’s
jurors had a fairly extensive legal background. Juror Booth revealed
during voir dire that she earned an undergraduate degree in criminal
justice, that she interned at the Public Defender’s office in Spartan-
burg, South Carolina, and that she was employed for a period of time
by a criminal defense attorney as a paralegal. Clearly, Juror Booth’s
experience made it likely that she would be familiar with the basics
of the legal process, including criminal appeals. Fullwood accepted
her as a juror despite the clear possibility that she would be a source
of information about the legal process — as well as a favorable juror
for him in light of her defense background.
Our conclusion is the same with respect to the allegations relating
to the jury’s alleged discussion of whether Fullwood might be eligible
for parole. Fullwood failed to establish that the jury learned informa-
tion about Fullwood’s possible parole from an outside source during
trial. Rather, the Booth affidavit, if true, establishes only that the jury
discussed parole based on general sentencing information provided to
an individual juror by the juror’s family member who had some expo-
sure to the law. The affidavit does not specify whether the informa-
tion was passed along during trial or whether the juror learned the
information during past discussion with his spouse. Moreover, in our
10Juror Booth’s additional statements as to the subjective effect of this
information would not be admissible to impeach the verdict: that the
knowledge that Fullwood would appeal "lessened our sense of responsi-
bility . . . because we felt that our decision was in no way final" and that
the possibility that Fullwood might be eligible for parole "was a signifi-
cant factor in our not sentencing him to life in prison" and resulted in the
jury "not giv[ing] much consideration to the mitigating evidence." J.A.
159-60.
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view, this information does not qualify as an extraneous matter since
virtually every juror will have preconceived notions about the legal
process which the defendant can uncover and examine during jury
selection. See Stockton, 852 F.2d at 744 ("[T]he beliefs, biases, and
preferences of every juror may be explored and exposed by the defen-
dant at voir dire."). We agree with the Seventh Circuit that, in the
absence of any additional specific allegations of impropriety, when
"an individual juror [takes] it upon himself to inform other members
of the jury about his understanding . . . that [a capital murder defen-
dant] would serve [less than life] if [the jury] sentenced him to life,"
such information relates to the jury’s internal discussions and may not
be used to upend a verdict. Silagy v. Peters, 905 F.2d 986, 1008 (7th
Cir. 1990).
Accordingly, we conclude that Fullwood is not entitled to relief
under either the "contrary to" or "unreasonable application" prong of
§ 2254(d) on his Sixth Amendment claim that the jury improperly
considered his parole eligibility and the possibility that he might
appeal.
III.
Fullwood next contends that the State violated Brady v. Maryland,
373 U.S. 83 (1963), by failing to disclose to Fullwood and his attor-
ney Fullwood’s own statement to police officers shortly after the stab-
bing. At his initial trial, Fullwood moved, pursuant to Brady, for the
State to disclose exculpatory evidence, including "[a]ny statements
made by Michael Lee Fullwood to any law enforcement officer or any
other witness which could be considered wholly or partially exculpa-
tory, which could tend to negate any of the elements of first degree
murder, or which could be considered in any way mitigating." J.A.
139. The State produced Fullwood’s statement to Detective Walt
Robertson and Sergeant Ted Lambert, who interviewed Fullwood on
April 1, 1985, while he was in the hospital recovering from a stab
wound and various cuts that the attending physicians determined to
be self-inflicted. Fullwood admitted that he had killed Deidre, claim-
ing that he did not intend to kill her but had gotten carried away as
he fought with her at the Hawks’ residence.
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During Fullwood’s resentencing, he moved to suppress this state-
ment.11 During the suppression hearing, Detective Robertson and Ser-
geant Lambert testified about Fullwood’s statement on April 1, 1985.
Prosecutors informed defense counsel they had learned, apparently
for the first time, that during the interview Fullwood asked to speak
alone with Detective Robertson, whom Fullwood had known for a
number of years. Robertson testified that Fullwood began crying and
said that he had indeed killed Deidre but that he had been using
cocaine and had lost control. Fullwood also told Robertson that he
had stabbed himself in the stomach and that he wanted to die. Full-
wood did not testify at the suppression hearing. The state resentencing
court denied Fullwood’s motion to suppress his statement.
Fullwood contends that his defense "would have been greatly
boosted by Officer Robertson’s observations that Michael Fullwood
was remorseful, distraught, and crying, and by Fullwood’s statement
to Robertson that he was under the influence of drugs at the time of
the commission of the crime." Brief of Appellant at 36. Fullwood
argues the disclosure of this statement would have affected his
defense in two ways. First, Fullwood argues that this statement would
have afforded him a diminished capacity defense aimed at mitigating
his crime from first to second degree murder. See State v. Page, 488
S.E.2d 225, 231 (N.C. 1997) (explaining that a diminished capacity
defense may be presented to "negate[ ] [the defendant’s] ability to
form the specific intent to kill required for a first-degree murder con-
viction on the basis of premeditation and deliberation," but it "is not
a defense to the element of malice in second-degree murder"). Sec-
ond, Fullwood argues that his defense counsel, had he known about
the statement, would have recommended that Fullwood testify about
his drug use before he killed Deidre, which could have been corrobo-
rated to some extent by Detective Robertson.
The state court rejected this argument during post-conviction relief
proceedings on three alternative bases: (1) the statement was not
exculpatory; (2) Fullwood suffered no prejudice from the nondisclo-
sure because Fullwood’s attorney knew about the cocaine use from
11Fullwood also moved to suppress the statement at the first trial; how-
ever, the trial court did not rule on the motion because the State decided
not to introduce the statement.
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Fullwood’s own statement; and (3) Fullwood suffered no prejudice
because he himself knew that he had told Detective Robertson about
his cocaine use, even if he failed to convey this fact to defense coun-
sel.
Brady teaches us that the prosecution deprives a criminal defendant
of due process when it suppresses evidence that is "favorable to an
accused . . . where the evidence is material either to guilt or to punish-
ment, irrespective of the good faith or bad faith of the prosecution."
Brady, 373 U.S. at 87. It is the petitioner’s burden, see United States
v. Stokes, 261 F.3d 496, 502 (4th Cir. 2001), to establish the three ele-
ments of a Brady violation: (1) "[t]he evidence at issue must be favor-
able to the accused"; (2) the "evidence must have been suppressed by
the State, either willfully or inadvertently"; and (3) the evidence must
be material, i.e., "prejudice must have ensued." Strickler v. Greene,
527 U.S. 263, 281-82 (1999); see Spicer v. Roxbury Corr. Inst., 194
F.3d 547, 555 (4th Cir. 1999).12 We conclude that the decision of the
state court was neither unreasonable nor contrary to law. Even assum-
ing the evidence at issue qualified as favorable to Fullwood, he failed
to establish the other two components of a Brady claim.
First, the State did not suppress the information that came out dur-
ing Fullwood’s conversation with Detective Robertson because Full-
wood, better than anyone, knew about his cocaine use on the night
prior to the stabbing and knew that he had recounted this fact to
Detective Robertson. The Brady rule "does not compel the disclosure
of evidence available to the defendant from other sources, including
diligent investigation by the defense." Stockton v. Murray, 41 F.3d
920, 927 (4th Cir. 1994); see also United States v. Wilson, 901 F.2d
378, 381 (4th Cir. 1990) ("[W]here the exculpatory information is not
only available to the defendant but also lies in a source where a rea-
sonable defendant would have looked, a defendant is not entitled to
the benefit of the Brady doctrine."). Thus, "[n]ondisclosure . . . does
not denote that no exculpatory evidence exists, but that the govern-
12The fact that Detective Robertson had not passed along the substance
of his private conversation to the prosecutor did not absolve the State of
its duties under Brady because the Brady rule extends to evidence that
is "known only to police investigators and not the prosecutor." Kyles v.
Whitley, 514 U.S. 419, 438 (1995).
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ment possesses no exculpatory evidence that would be unavailable to
a reasonably diligent defendant." Barnes v. Thompson, 58 F.3d 971,
975 n.4 (4th Cir. 1995). Certainly, then, information that is not merely
available to the defendant but is actually known by the defendant
would fall outside of the Brady rule. See West v. Johnson, 92 F.3d
1385, 1399 (5th Cir. 1996) (rejecting capital defendant’s Brady claim
that the prosecution suppressed evidence suggesting that the defen-
dant fabricated his confession of stealing a necklace from the victim;
the defendant "knew whether or not he had taken the necklace, and
necessarily knew that better than the prosecution could have"); United
States v. Diaz, 922 F.2d 998, 1007 (2d Cir. 1990) ("[T]here is no
improper suppression within the meaning of Brady where the facts are
already known by the defendant."). Fullwood testified at his resen-
tencing trial that he used cocaine on the night before he killed Deidre.
Moreover, in rejecting Fullwood’s Brady claim in the MAR proceed-
ings, the North Carolina state court concluded that Fullwood’s attor-
ney knew that Fullwood had been using cocaine on the night of the
murder. Indeed, the record bears out the fact that trial counsel knew
about Fullwood’s cocaine use.13 Fullwood has failed to come forward
with clear and convincing evidence to rebut this finding. See 28
U.S.C.A. § 2254(e)(1); Evans v. Smith, 220 F.3d 306, 312 (4th Cir.
2000), cert. denied, 532 U.S. 925 (2001). Obviously, Fullwood and
his attorneys knew about his cocaine use and could have pursued a
diminished capacity defense. Likewise, Fullwood himself was well
aware that he spoke in private with Detective Robertson and revealed
that he had used cocaine on the night prior to Deidre’s murder. The
purported Brady material, therefore, was known to Fullwood and
available for his use. Thus, the state court’s determination that the
statement was not required to be disclosed in the first place was nei-
ther contrary to law nor based on the unreasonable application of pre-
cedent.
Second, Fullwood did not demonstrate that the State’s failure to
disclose Fullwood’s mention of cocaine use to Detective Robertson
was material, i.e., that the alleged nondisclosure caused him to suffer
prejudice. The Supreme Court has explained that "[t]he mere possibil-
13When the trial court asked defense counsel whether he was aware of
the substance of the conversation between Fullwood and Detective Rob-
ertson, counsel responded, "In general, yes, sir." Tr. Vol. VIII at 1353.
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ity that an item of undisclosed information might have helped the
defense, or might have affected the outcome of the trial, does not
establish ‘materiality’ in the constitutional sense." United States v.
Agurs, 427 U.S. 97, 109-10 (1976). Rather, materiality under Brady
means that "there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have
been different." United States v. Bagley, 473 U.S. 667, 682 (1985). A
reasonable probability exists when "the favorable evidence could rea-
sonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. 419,
435 (1995). Again, we note that the failure to turn over this informa-
tion in no way deprived Fullwood of a diminished capacity defense
based on his cocaine use since Fullwood and his attorney were obvi-
ously aware of the cocaine use. The remaining argument is that, had
Fullwood’s trial counsel known about Fullwood’s conversation with
Detective Robertson, he would have advised Fullwood to take the
stand and testify about his drug use because Detective Robertson
could corroborate Fullwood’s story. Instead, Fullwood’s attorney
feared that if Fullwood’s testimony provided the only evidence of
drug use in connection with the murder, it "would appear to the jury
to be contrived." J.A. 154. This is not the type of evidence that "could
reasonably be taken to put the whole case in such a different light as
to undermine confidence in the verdict." Kyles, 514 U.S. at 435.
Indeed, Robertson could not corroborate Fullwood’s cocaine use the
night before the murder; Robertson could only corroborate the fact
that Fullwood claimed to have used cocaine the night before the mur-
der. Ultimately, Fullwood’s testimony would still be the only direct
evidence of his cocaine use. Accordingly, we conclude the North Car-
olina state court’s rejection of Fullwood’s Brady claim affords him no
relief under either the "contrary to" or "unreasonable application"
components of § 2254(d).
IV.
Fullwood argues that he is entitled to an evidentiary hearing on his
Sixth Amendment claim that he received ineffective assistance of
counsel because of his attorney’s conflict of interest. Specifically,
Fullwood contends that a hearing is necessary to determine whether
Al Williams, one of the attorneys on his original trial team who sub-
sequently became an assistant district attorney, participated in the
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prosecution of Fullwood during the resentencing proceedings. Wil-
liams, then an assistant public defender, represented Fullwood during
the guilt phase of trial and the original sentencing proceedings, but
later accepted a position with the district attorney’s office. By the
time Fullwood’s case had been returned for resentencing, Williams
was employed as a prosecutor in the same district attorney’s office
that was handling Fullwood’s prosecution. Fullwood claims that Wil-
liams participated on behalf of the state during resentencing, thereby
depriving him of his right to counsel under the Sixth Amendment. See
Strickland v. Washington, 466 U.S. 668 (1984).
Fullwood draws the factual basis for this claim from the fact that
Williams was present in his capacity as a prosecutor during a July 22,
1991 criminal trial docket meeting in Buncombe County Superior
Court to schedule various criminal cases, including Fullwood’s resen-
tencing, for trial. Fullwood submitted to the state MAR court an
extremely brief excerpt from a transcript of the July 22 court session.
It appears, based on this transcript, that the only discussion of Full-
wood’s case during the July 22 court session involved a brief
exchange between defense counsel and the court about when to
schedule the resentencing trial. Neither Williams nor District Attor-
ney Moore, who was also present, commented on the scheduling of
Fullwood’s case. At the time, Fullwood did not object to the presence
of Williams in the courtroom. Fullwood contends that Williams’ pres-
ence at the docket meeting demonstrates that Williams participated in
the prosecution of his former client on the same charges against
which he had previously defended Fullwood.
In response, the state submitted an affidavit from District Attorney
Moore. According to Moore’s affidavit, Williams was "completely
‘fenced-off’ from anything relating to FULLWOOD." J.A. 161. And,
pursuant to office policy, "[t]he Fullwood case [was] never . . . dis-
cussed in front of Al Williams even until this date. Mr. Williams
[was] . . . asked to leave the room whenever [prosecutor] Dreher or
[District Attorney Moore] were working on the case and he happened
to inadvertently come in or if either of [them] received a phone call
pertaining to Fullwood and [Williams] was present." J.A. 162. Moore
further attested that Williams was in court on July 22 not in connec-
tion with Fullwood’s case but "because Judge Lewis and all counsel
were engaged in a process of scheduling a number of cases for trial."
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J.A. 161. According to Moore, Williams may have called the names
of the cases on the calendar, including Fullwood’s, "which would
[have] result[ed] in a report from the Bailiff that the named defendant
was in custody." J.A. 161. Fullwood does not dispute the accuracy of
Moore’s affidavit.
The North Carolina MAR court rejected the claim that Williams
had a conflict of interest that deprived Fullwood of his constitutional
rights, finding that "there [was] no evidence that there was any uneth-
ical conflict caused by the District Attorney’s office prosecuting the
re-sentencing proceeding after Al Williams had become an Assistant
District Attorney" and that "[t]here [was] no evidence that Mr. Wil-
liams took part in the preparation or assisted in the trial of [the] re-
sentencing hearing in any way." J.A. 165. These factual determina-
tions by the state court are presumptively correct, and Fullwood can
rebut them only by presenting clear and convincing evidence to the
contrary. See 28 U.S.C.A. § 2254(e)(1). Both the state MAR court
and the district court denied Fullwood’s request for an evidentiary
hearing.
A. Evidentiary Hearing
Because Fullwood did not "fail[ ] to develop" the factual basis of
this claim, section 2254(e)(2) presents no bar to an evidentiary hear-
ing in district court. See Williams, 529 U.S. at 430. However, Full-
wood is not entitled to a hearing unless he "alleges additional facts
that, if true, would entitle him to relief and establishes one of [the six
Townsend factors]." Fisher, 215 F.3d at 454 (internal quotation marks
omitted).
Fullwood claims that he is entitled to an evidentiary hearing
because he has presented facts that, if true, entitle him to relief on this
claim. Fullwood raises a Sixth Amendment claim based on what he
perceives to be his attorney’s conflict of interest as opposed to his
attorney’s deficient performance at trial or sentencing. Indeed, "[a]
necessary corollary" to Fullwood’s Sixth Amendment right to effec-
tive assistance of counsel "is the right to representation that is free
from conflicts of interest." Burket v. Angelone, 208 F.3d 172, 184 (4th
Cir. 2000) (internal quotation marks omitted); see Cuyler v. Sullivan,
446 U.S. 335, 345-50 (1980). When defense counsel’s performance
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is impeded by an actual conflict of interest, counsel "breaches the
duty of loyalty, perhaps the most basic of counsel’s duties," and ren-
ders ineffective assistance. Strickland, 466 U.S. at 692. Moreover,
"the duty of loyalty is violated not merely when counsel represents
clients who have conflicting interests, but also when counsel acts
more for the benefit of, and with more apparent sympathy toward, the
prosecution than the client he is defending." Fisher v. Gibson, 282
F.3d 1283, 1291 (10th Cir. 2002); see Osborn v. Shillinger, 861 F.2d
612 (10th Cir. 1988) ("[A]n attorney who adopts and acts on a belief
that his client should be convicted ‘fail[s] to function in any meaning-
ful sense as the Government’s adversary.’" (quoting United States v.
Cronic, 466 U.S. 648, 666 (1984)). Accordingly, an attorney whose
loyalties are so conflicted that he or she is no longer "functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment" ren-
ders ineffective assistance. Strickland, 466 U.S. at 687.
When a habeas petitioner claims a Sixth Amendment deprivation
because of his attorney’s conflict of interest, then the two-part Strick-
land analysis for ineffective assistance claims is modified slightly.
See Burket, 208 F.3d at 184. On a conflict-of-interest claim, petitioner
must show (1) that his attorney had "an actual conflict of interest" and
(2) that the conflict of interest "adversely affected his lawyer’s perfor-
mance." Cuyler, 446 U.S. at 348. An actual conflict arises when coun-
sel "actively represents conflicting interests." United States v. Tatum,
943 F.2d 370, 375 (4th Cir. 1991) (emphasis added). Once the peti-
tioner establishes both an actual conflict of interest and an adverse
effect on defense counsel’s performance, then "prejudice to the
defense is presumed and a new trial must be ordered." Id.; see Cuyler,
446 U.S. at 348-50.
Fullwood has failed to present clear and convincing evidence to
rebut the state court’s factual finding that "[t]here [was] no evidence
that Mr. Williams took part in the preparation or assisted in the trial
of [the] re-sentencing hearing in any way." J.A. 165. The only evi-
dence Fullwood offered in support of this claim was the excerpt of the
transcript from the July 22 court proceeding, suggesting that it raised
the possibility of Williams’ improper involvement in the ongoing
prosecution of his former client Fullwood. The state countered with
an affidavit explaining the July 22 proceeding. The state court’s deter-
mination that Williams did not participate in the resentencing was rea-
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sonable, given the evidence presented to the state court and the
speculative nature of Fullwood’s allegations of Williams’ participa-
tion in the resentencing proceedings. See 28 U.S.C.A. § 2254(d)(2).
Fullwood has failed to present any other facts, much less clear and
convincing evidence, that would rebut the state court’s determination.
See 28 U.S.C.A. § 2254(e)(1). Therefore, we must accept it as true.
See Howard, 131 F.3d at 406.
Because we accept as true the determination that Williams did not
assist in the prosecution of Fullwood during resentencing, Fullwood
must "allege additional facts that, if true, would entitle him to relief."
McCarver, 221 F.3d at 598 (internal quotation marks omitted). Full-
wood has failed to allege additional facts that, if proven, would estab-
lish Williams had an actual conflict of interest and that the conflict
adversely affected his performance. The focus of Fullwood’s ineffec-
tive assistance claim is on what Williams did after he no longer repre-
sented Fullwood, not during the time he served as Fullwood’s
attorney. Fullwood does not claim that Williams had a conflict of
interest that hindered his performance during the guilt phase or the
original sentencing phase. Nor does Fullwood contend that Williams’
performance was subpar in any respect during the original trial.14
Fullwood does not forecast any evidence suggesting that Williams
actively represented any interest other than Fullwood’s during the
original trial or that Williams had a relationship with the district attor-
ney’s office that hindered his ability to represent Fullwood. See
Tatum, 943 F.2d at 375 (explaining that an actual conflict of interest
arises when counsel "actively represents conflicting interests").
Accordingly, we reject Fullwood’s claim that he is entitled to an evi-
dentiary hearing on this issue.15
14During state habeas proceedings, Fullwood claimed that Williams’
performance during the original trial was deficient. Fullwood also
advanced this claim in district court; however, he has chosen not to pur-
sue that claim on appeal.
15Although Fullwood advances this claim on Sixth Amendment
grounds, we note that he is likewise entitled to no relief on this claim to
the extent that he cited to, but did not develop an argument upon, the
Fifth, Eighth and Fourteenth Amendments.
Because our focus in an ineffective assistance claim is on whether the
petitioner’s attorney, during the time that he or she represented the peti-
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B. District Court’s Failure to Inquire
We also reject Fullwood’s claim that the failure of the state court
to inquire sua sponte into a possible Sixth Amendment violation
based on Williams’ presence at the docket meeting requires us to
remand for an evidentiary hearing. A state court does indeed have a
duty to inquire into defense counsel’s possible conflicts of interest if
the court "knows or reasonably should know that a particular conflict
exists." Cuyler, 446 U.S. at 347. Fullwood claims that he is entitled
to relief or to a hearing because there was no inquiry by the trial court
into a possible conflict of interest. The Supreme Court, however,
recently rejected the idea that a habeas petitioner is automatically
entitled to relief when the trial court fails to make an inquiry man-
dated by Cuyler. See Mickens v. Taylor, 122 S. Ct. 1237, 1244 (2002).
Even if the trial court has failed to conduct a mandatory review under
Cuyler, the petitioner still must be able to establish "that the conflict
of interest adversely affected his counsel’s performance." Id. at 1245.
Fullwood suggests that we should order a hearing on this issue
because he has not been afforded one in state or federal court. Mick-
ens, however, does not require that an evidentiary hearing be held in
all circumstances, nor does Mickens alter the fact that a court’s duty
to inquire extends only to conflicts of which it is or reasonably should
be aware. See Cuyler, 446 U.S. at 347. There was never any objection
by Fullwood’s defense team to Williams’ appearance at the docket
meeting. Fullwood has not directed us to anything else that would
indicate that the state court should have known of a potential Sixth
Amendment problem. See Mickens, 122 S. Ct. at 1242 (explaining
that there is no obligation to inquire "when the trial court is aware of
tioner, was so divided in his or her loyalties that the petitioner was effec-
tively without counsel, see Cuyler, 446 U.S. at 345-50; Holloway v.
Arkansas, 435 U.S. 475, 481-83 (1978); Tatum, 943 F.2d at 375, general
due process principles seem less analytically awkward here. See United
States v. Schell, 775 F.2d 559, 566 (4th Cir. 1985) ("We conclude that
due process is violated when an attorney represents a client and then par-
ticipates in the prosecution of that client with respect to the same mat-
ter."). In any event, given Fullwood’s inability to rebut the factual
determinations of the state court, our conclusion would be the same even
if Fullwood had vigorously pursued a due process theory.
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a vague, unspecified possibility of conflict"). "Absent such an objec-
tion [to the attorney’s participation], a petitioner must satisfy the two-
part conflict-of-interest standard identified by [Cuyler v. Sullivan]."
Mickens v. Taylor, 240 F.3d 348, 358 (4th Cir. 2001) (en banc), aff’d,
122 S. Ct. 1237 (2002). For the reasons stated previously, Fullwood
is not entitled to an evidentiary hearing on the two-part Cuyler test.
Fullwood does not even allege that Williams actively served conflict-
ing interests, much less that Williams’ alleged divided loyalties
deprived him of counsel. Because the state court’s rejection of this
claim was neither contrary to nor an unreasonable application of
clearly established law, Fullwood is not entitled to relief under
§ 2254(d).
V.
Fullwood contends that the trial court’s exclusion of purportedly
mitigating evidence on state evidentiary grounds amounted to an error
of constitutional magnitude. During resentencing, defense counsel
sought to elicit testimony from Fullwood’s mother about Fullwood’s
reaction to the death of his older brother, a murder victim. The trial
court initially excluded this testimony on hearsay grounds. However,
the court permitted Fullwood to make an offer of proof outside of the
presence of the jury, whereupon this exchange took place:
Q. What was [defendant’s] reaction to the death of his
brother about five months prior to [the victim’s] murder?
A. [Defendant] was very upset at the death of his brother.
He was there at the nursing home when I received the call
about the death of my son.
Q. What did he do—did you see him do or say something?
A. Well, he called [the victim] and [the victim] came on
over. She came in from work. She was right there with me.
. . . But [defendant] was very upset about the death of his
brother.
Q. Did [defendant] continue to be upset about the death of
his brother?
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A. I don’t think he ever really got over it completely. He
was depressed and everything.
Q. Was [your son] who died [defendant’s] older brother?
A. He was, and they were very close. He was my first-
born child.
Q. You indicated that [defendant] was depressed over the
loss of his brother?
A. He was.
COURT: Now, [defense counsel], you haven’t asked those
questions previously.
[DEFENSE COUNSEL]: No, sir, but I asked what [defen-
dant’s] reaction was to his brother’s death and you sustained
that.
COURT: Yes, sir, I did.
[DEFENSE COUNSEL]: Would you allow me to ask
these questions?
COURT: I rule upon them when they’re asked. . . .
Fullwood III, 472 S.E.2d at 888-89. After the jury returned, defense
counsel did not attempt to ask Fullwood’s mother these or any other
questions about Fullwood’s reaction to the murder of his brother.
On direct appeal, the North Carolina Supreme Court rejected Full-
wood’s argument that the trial court excluded "potentially compelling
mitigating evidence in violation of the Eighth Amendment." Id. at
888. The court explained that state evidentiary law permitted "[l]ay
opinion on the emotional state of another[,] . . . if rationally based on
the perception of the witness." Id. at 889. However, "[a]t the time
[Fullwood’s] mother was [first] asked [about Fullwood’s] reaction to
his brother’s death, no evidence had been presented that [Fullwood’s]
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mother had [sufficient] personal knowledge of [his] mental state" to
permit an answer to the question. Id. The court concluded that Full-
wood could not demonstrate prejudice even if the trial court had com-
mitted error because Fullwood never pursued the matter again despite
the fact that "testimony was presented during voir dire to establish
that defendant’s mother had personal knowledge sufficient to answer
the question." Id.
The deferential standard of review contained in § 2254(d) applies
only to federal claims that are "adjudicated on the merits" by the state
court, i.e., "[i]f the claim was properly presented to the state court and
the state court adjudicated it." Fisher, 215 F.3d at 445. However, if
the "petitioner has properly presented a claim to the state court but the
state court has not adjudicated the claim on the merits," we apply a
de novo standard of review. Weeks v. Angelone, 176 F.3d 249, 258
(4th Cir. 1999), aff’d, 528 U.S. 225 (2000). Although the North Caro-
lina Supreme Court specifically discussed only state evidentiary law
in resolving this claim, we are satisfied that Fullwood’s claim was
adjudicated on the merits for purposes of § 2254. Recognizing that
Fullwood’s claim was premised on the Eighth Amendment, the state
court’s ultimate conclusion was that Fullwood could not show "preju-
dicial error." Fullwood III, 472 S.E.2d at 889. The state court, how-
ever, did not discuss its reasoning. The deferential standards of
§ 2254(d)(1) apply, but we must independently review the record and
the applicable legal principles to apply them. See Bell, 236 F.3d at
163; Quinn v. Haynes, 234 F.3d 837, 844 n.8 (4th Cir. 2000) (state
court adjudicated constitutional claim on the merits where claim was
squarely presented to it even though court limited its analysis to state
law), cert. denied, 532 U.S. 1024 (2001).
A state court’s resolution of an evidentiary question generally does
not give rise to a cognizable claim under § 2254. See Hutchins v. Gar-
rison, 724 F.2d 1425, 1437 (4th Cir. 1983) ("‘Normally, the admissi-
bility of evidence . . . in state trials [is a matter] of state law and
procedure not involving federal constitutional issues.’" (alteration in
original) (quoting Grundler v. North Carolina, 283 F.2d 798, 802 (4th
Cir. 1960)). However, in the case of evidence offered in mitigation at
the sentencing phase of a capital trial, "the Eighth and Fourteenth
Amendments require that the sentencer . . . not be precluded from
considering, as a mitigating factor, any aspect of a defendant’s char-
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acter or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death." Lockett
v. Ohio, 438 U.S. 586, 604 (1978) (emphasis in original); see Eddings
v. Oklahoma, 455 U.S. 104, 113-14 (1982) ("Just as the State may not
by statute preclude the sentencer from considering any mitigating fac-
tor, neither may the sentencer refuse to consider, as a matter of law,
any relevant mitigating evidence."). Thus, "the Supreme Court has
been very sensitive to any impediment to the consideration of any
type of mitigating evidence in a death sentencing hearing." Hutchins,
724 F.2d at 1437. We have noted that, under certain circumstances,
"[t]he Due Process Clause of the Fourteenth Amendment may require
the admission of mitigating evidence even if state-law rules of evi-
dence (e.g., hearsay) would exclude it." Boyd v. French, 147 F.3d
319, 326 (4th Cir. 1998) (emphasis added) (citing Green v. Georgia,
442 U.S. 95, 97 (1979) (per curiam)).
On the other hand, the principles developed in Lockett and Eddings
do not eviscerate all state evidentiary rules with respect to mitigating
evidence offered in capital sentencing proceedings. See Hutchins, 724
F.2d at 1437 ("We find no indication that Eddings and Lockett pre-
empt all state rules of evidence. Both cases speak about types of evi-
dence, not evidentiary rules."). For example, the application of the
hearsay rule to exclude evidence offered in mitigation of the death
penalty is clearly not a per se constitutional violation. See Buchanan
v. Angelone, 103 F.3d 344, 348-49 (4th Cir. 1996), aff’d, 522 U.S.
269 (1998). It is permissible to exclude on hearsay grounds mitigating
evidence which is "only [of] cumulative probative value." Id. at 349
(concluding that "[t]he exclusion of the hearsay statements offered . . .
for the purpose of providing additional support for Dr. Brown’s con-
clusion that Buchanan acted under extreme distress" was not revers-
ible error because Buchanan was able to offer other evidence of the
mitigating circumstance).
Assuming the testimony from Fullwood’s mother about Fullwood’s
reaction to his brother’s murder would have supported one of the mit-
igating circumstances Fullwood offered to the jury or would have
constituted a circumstance to which the jury independently would
have accorded mitigating value, Fullwood has not demonstrated how
the exclusion of this testimony could have had a "substantial and inju-
rious effect or influence in determining the jury’s verdict." Brecht,
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507 U.S. at 637 (internal quotation marks omitted). First, the trial
judge did not bar Fullwood categorically from presenting evidence
about his reaction to his brother’s murder; rather, Fullwood’s mother
was precluded from testifying on evidentiary grounds. After Fullwood
established a better foundation for this line of questioning, the trial
court made clear that he was free to try again, but he did not further
pursue this issue. Second, Fullwood himself obviously could have tes-
tified about this subject when he took the stand on his own behalf but
he failed to do so. Fullwood had every opportunity to present this
information to the jury after the initial hearsay objection was sus-
tained. Accordingly, we conclude that the decision of the state court
rejecting this claim was neither contrary to nor an unreasonable appli-
cation of clearly established Supreme Court precedent.
VI.
Finally, Fullwood contends that the jury instructions were uncon-
stitutionally vague under the Eighth Amendment. The jury unani-
mously found beyond a reasonable doubt the existence of the single
aggravating circumstance that was presented to the jury — that the
murder was especially heinous, atrocious or cruel. See N.C.G.S.
§ 15A-2000(e)(9). "In the case of statutory aggravating circumstances
in a capital punishment scheme, a circumstance may be so vague as
to provide no . . . meaningful basis for distinguishing a death penalty
case from other murders," Fisher, 215 F.3d at 457, thereby "fail[ing]
adequately to inform juries what they must find to impose the death
penalty and . . . leav[ing] them . . . with the kind of open-ended dis-
cretion" that has been held to violate the Eighth Amendment, May-
nard v. Cartwright, 486 U.S. 356, 361-62 (1988).
Standing alone, North Carolina’s "especially heinous, atrocious, or
cruel" aggravating circumstance is unconstitutionally vague. See
Maynard, 486 U.S. at 363-64 (holding Oklahoma’s "especially hei-
nous, atrocious, or cruel" aggravating circumstance to be unconstitu-
tionally vague); Fisher, 215 F.3d at 458 (recognizing constitutional
infirmity of North Carolina’s "especially heinous, atrocious, or cruel"
aggravating circumstance).
If "[a] statutory circumstance . . . is alone too vague to provide
meaningful guidance to the sentencer [it] may be accompanied by a
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limiting instruction which does provide sufficient guidance." Fisher,
215 F.3d at 457; see Walton v. Arizona, 497 U.S. 639, 654 (1990)
(explaining that if the statutory aggravating circumstance is too
vague, then the court must "determine whether the state courts have
further defined the vague terms and . . . whether those definitions are
constitutionally sufficient"); Smith v. Dixon, 14 F.3d 956, 974 (4th
Cir. 1994) (en banc) (explaining that North Carolina’s scheme needs
a limiting instruction to pass constitutional muster).
At resentencing, the trial court instructed the jury that
one possible aggravating [circumstance] may be considered
by you and that one only. The following is the aggravating
circumstance which might be applicable in this case. Was
this murder especially heinous, atrocious or cruel? In this
context, "heinous" means extremely wicked or shockingly
evil. "Atrocious" means outrageously wicked and vile. And
"cruel" means designed to inflict a high degree or pain with
utter indifference or even enjoyment of the suffering of oth-
ers. However, it is not enough that this murder be heinous,
atrocious or cruel as those terms have just been defined.
This murder must have been especially heinous, atrocious or
cruel, and not every murder is especially so. For this murder
to have been especially heinous, atrocious or cruel, any bru-
tality which was involved in it must have exceeded that
which is normally present in any killing or this murder must
have been a [conscienceless] or pitiless crime which was
unnecessarily tortuous to the victim.
Tr. August 18, 1994 at 8-9.
Fullwood argues that this instruction fails to provide constitution-
ally sufficient guidance to the jury. The North Carolina Supreme
Court rejected this argument on direct appeal following Fullwood’s
resentencing trial, see Fullwood III, 472 S.E.2d at 893, thus refusing
to depart from its previous decision that an identical set of jury
instructions was constitutionally sufficient under United States
Supreme Court precedent, see North Carolina v. Syriani, 428 S.E.2d
118, 140-41 (N.C. 1993).
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We conclude that the North Carolina Supreme Court’s rejection of
Fullwood’s claim was neither contrary to nor an unreasonable appli-
cation of clearly established Supreme Court precedent. We recently
rejected this argument in two capital cases involving the same North
Carolina statutory aggravating circumstance. See Fisher, 215 F.3d at
457-59; see also Frye v. Lee, 235 F.3d 897, 907-08 (4th Cir.), cert.
denied, 533 U.S. 960 (2001). We do so again in Fullwood’s case.
VII.
To sum up, we grant Fullwood’s application for a certificate of
appealability on his claim of improper jury contact, but we reverse the
decision of the district court only on the narrow grounds that Full-
wood should have been afforded a hearing on his claim that Juror
Austin was improperly influenced during the trial by her husband, and
that the jury improperly learned of and considered the fact that Full-
wood had been sentenced to death for Deidre’s murder once before.
We affirm the remainder of the district court’s disposition of that
claim. With respect to the other claims, we conclude that the state
court’s refusal to grant relief was neither contrary to, nor an unreason-
able application of, clearly established federal law as decided by the
Supreme Court. We deny Fullwood’s application for a certificate of
appealability with respect to his other claims and dismiss them
accordingly.
AFFIRMED IN PART, REVERSED IN PART,
DISMISSED IN PART AND REMANDED
WIDENER, Circuit Judge, concurring and dissenting:
I concur in the majority opinion with the exception of Part II
thereof, as to which I respectfully dissent. I would affirm.
Part II of the majority opinion is divided into two parts: Part A. is
Outside Influence By a Third Party. Part B. is Consideration of Extra-
neous Facts Related to Fullwood’s Case.
I first consider Part A., which relies upon Miss Booth’s affidavit,1
1The Booth affidavit is appended hereto.
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which the majority describes as "Juror Joyce Austin was ‘strongly
influenced by _______, her husband [who] was strongly pro-death
penalty’ and told Booth and other jurors that her husband ‘was con-
stantly telling [Austin] during the trial and during deliberations that
she should convict [Fullwood] and sentence him to death.’" The affi-
davit also included Booth’s opinion that "it was obvious . . . that the
pressure brought upon [Austin] by her husband caused her to vote
exactly the way he wanted her to."
In North Carolina, when a verdict is sought to be impeached, as
here, N.C. Gen. Stat. § 15A-1240 applies and is as follows:
§ 15A-1240. Impeachment of the verdict
(a) Upon an inquiry into the validity of a verdict, no
evidence may be received to show the effect of any state-
ment, conduct, event, or condition upon the mind of a juror
or concerning the mental processes by which the verdict was
determined.
(b) The limitations in subsection (a) do not bar evidence
concerning whether the verdict was reached by lot.
(c) After the jury has dispersed, the testimony of a juror
may be received to impeach the verdict of the jury on which
he served, subject to the limitations in subsection (a), only
when it concerns:
(1) Matters not in evidence which came to the
attention of one or more jurors under circum-
stances which would violate the defendant’s con-
stitutional right to confront the witnesses against
him; or
(2) Bribery, intimidation, or attempted bribery
or intimidation of a juror.
The Booth affidavit, with respect to Mrs. Austin’s husband, was
plainly within § 1240(a) as "any statement, conduct, event, or condi-
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tion upon the mind of a juror or concerning the mental processes by
which the verdict was determined." That being true, since, under the
statute, "no evidence may be received" to show any such effect, there
is not any requirement under the United States Constitution for an
evidentiary hearing on that issue.
The majority decision relying on a decision of the North Carolina
intermediate Court of Appeals, North Carolina v. Lyles, 380 S.E.2d
390, 394, has decided that the affidavit with respect to Mrs. Austin’s
husband is admissible to show the fact of an external prejudicial com-
munication but not as to "the subjective effect those matters had on
their verdict."
One problem with the majority decision is that Lyles did not decide
the case under § (a) of the statute, as the majority decision infers,
rather Lyles was decided under § (c)(1) of the statute, and its decision
was obviously correct under the facts of that case. In Lyles, a photo-
graph of a lineup had been admitted into evidence, with a paper under
the bottom of the photograph concealing the words "Police Depart-
ment, Wilson, North Carolina - 12291, 12-07-81." That evidence con-
tradicted testimony of the defendant’s alibi witnesses and thus it was
evidence which was considered by the jury and was given to the jury
after the jury retired, and not in the presence of the defendant, which
violated the confrontation clause. Thus, the fact of the consideration
of the date and place of the photograph by the jury was in violation
of § (c)(1) of the statute. It is true that the court also considered the
consideration of that substantive evidence extraneous information
within the meaning of Rule 606(b), but we are not dealing here with
any item of substantive evidence, only with outside influence by a
third party. And Miss Booth attempts by her affidavit to impeach her
own verdict, in violation of the rule. The majority does not consider
North Carolina v. Heatwole, 473 S.E.2d 310 (N.C. 1996); North Car-
olina v. Rosier, 370 S.E.2d 359 (N.C. 1988); North Carolina v.
Mutakbbic, 345 S.E.2d 154 (N.C. 1986); North Carolina v. Johnson,
259 S.E.2d 752 (N.C. 1979), and North Carolina v. Cherry, 257
S.E.2d 551 (N.C. 1979), an unbroken string of cases from the North
Carolina Supreme Court giving literal effect to § 15A-1240. Indeed,
even the Lyles case states that "Both Rule 606(b) and § 15A-1240
unambiguously prohibit inquiry into the effect of anything occurring
during deliberations upon jurors’ minds." 380 S.E.2d at 394.
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Because I believe that "outside influence" as related in the majority
opinion may only refer to influence upon the mind of Mrs. Austin, I
think that remanding the same for an evidentiary hearing is not
required by the Constitution and that the decision of the North Caro-
lina state courts to give no relief on account of the Booth affidavit in
that respect is not contrary to, or an unreasonable application of,
clearly established federal law as decided by the Supreme Court of
the United States. See Tanner v. United States, 483 U.S. 107 (1987).
I next consider Part II B. of the majority opinion which is based
on the Booth affidavit to the effect that "The jury became aware from
outside sources that Mr. Fullwood had already been sentenced to
death by another jury. The jury became aware that Mr. Fullwood’s
original death sentence had been reversed because of some technical-
ity involving a mistake the trial judge had made."
I believe no hearing is constitutionally required since defendant’s
sixth amendment rights were not affected by the alleged extraneous
contacts. Therefore, the state habeas court’s finding was not "contrary
to, or involved an unreasonable application of, clearly established
Federal law . . . ." 28 U.S.C.A. § 2254(d)(1).
Brecht requires extraneous and prejudicial information to have a
"substantial and injurious effect or influence in determining the jury’s
verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). But no
such harm is present here. As noted in the district court opinion, "trial
counsel knew as a result of voir dire that a member of the jury had
some prior knowledge of the case, and had read newspaper accounts
relating to Petitioner’s prior sentencing, but affirmatively decided that
such information would not affect the juror’s ability to provide Peti-
tioner with a fair re-sentencing hearing." Trial counsel did not excuse
this juror and excuse-for cause was not required.2 State v. Green, 336
N.C. 142 (1994), cert denied, 513 U.S. 1046. Under North Carolina
law, reversal is not required by a juror’s knowledge of a defendant’s
prior death sentence. State v. Simpson, 331 N.C. 267, 271 (1992),
cert. denied, 516 U.S. 1116 (1996). Defendant, however, does not
2In addition, as noted on direct appeal by the North Carolina Supreme
Court, "defendant failed to exercise all of his peremptory challenges."
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challenge this juror’s possible prejudice, but instead relies on the
Booth affidavit.
This affidavit alleges that the jurors obtained outside information
relating to defendant’s case. In particular, the affidavit claims "the
jury became aware that Mr. Fullwood’s original death sentence had
been reversed because of some technicality involving a mistake the
trial judge had made." Along with the two defense attorneys’ affida-
vits, this Booth affidavit was the only evidence filed with the state
habeas court in support of defendant’s constitutional claims. The
majority’s opinion explained Miss Booth’s background:
Juror Booth revealed during voir dire that she earned an
undergraduate degree in criminal justice, that she interned at
the Public Defender’s office in Spartanburg, South Carolina,
and that she was employed for a period of time by a criminal
defense attorney as a paralegal. Clearly, Juror Booth’s expe-
rience made it likely that she would be familiar with the
basics of the legal process, including criminal appeals. Full-
wood accepted her as a juror despite the clear possibility
that she would be a source of information about the legal
process— as well as a favorable juror for him in light of her
defense background.
Even with Miss Booth’s affidavit, defendant offers no evidence
that any alleged juror knowledge concerning his past conviction did
not, in fact, come from the juror who stated during voir dire that he
had knowledge of this past conviction. Because defense counsel
refused to remove the juror and North Carolina law permits this juror
to sit on the jury, I do not believe that the state habeas court’s deci-
sion is contrary to, or an unreasonable application of, federal law.3
3On habeas review of State v. Green, the federal district court affirmed
the North Carolina Supreme Court’s determination that the trial judge’s
decision denying defendant’s motion to excuse the juror for cause, who
had information about the previous conviction. Green v. French, 978
F.Supp. 242, 264 (E.D.N.C. 1997), affirmed, 143 F.3d 865 (4th Cir.
1998) (the current question not discussed).
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Moreover, I agree with the state habeas court that defendant had
presented his evidence with respect to said issue by the affidavit.
Assuming the alleged extraneous information was not attained by the
juror who had knowledge of defendant’s past conviction, I believe
that this affidavit’s vagueness, in failing to mention any particular
outside contact, precludes an evidentiary hearing since the defendant
has not introduced "competent evidence that there was an extrajudi-
cial communication or contact."4 Howard v. Moore, 131 F.3d 399,
422 (4th Cir. 1997) (en banc).
Thus, I am of opinion that the decision of the state court declining
to give any relief on account of the Booth affidavit was not "contrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States."
Finally, I fear that the precedent of impeaching this verdict on the
strength of the Booth affidavit is establishing precedent which will
denigrate jury verdicts.
STATE OF NORTH CAROLINA
COUNTY OF BUNCOMBE
AFFIDAVIT OF LAURA BOOTH
LAURA BOOTH, being first duly sworn, does hereby depose and
say:
1. In 1994, I was one of the jurors who served on the jury which
presided over the re-sentencing of Michael Lee Fullwood. The
jury recommended that Mr. Fullwood be sentenced to death;
2. During the trial the jury was instructed not to listen to news
accounts of the case, not to conduct its own investigation, and not
to discuss the case with friends and family members. Regardless
4I do not believe that this affidavit, particularly when provided by a
juror with Miss Booth’s background, sufficiently warrants a presumption
of prejudice, which if not rebutted, requires an evidentiary hearing.
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of how hard we tried to comply, the media, friends and family
were constantly available providing us with outside information.
3. At various times during the trial and during deliberations, jurors
gained outside information from newspapers, news broadcasts,
friends and family members about various aspects of Mr. Full-
wood’s case. This outside information was used by the jury dur-
ing its deliberations as is more specifically set forth below;
4. The jury became aware from outside sources that Mr. Fullwood
had already been sentenced to death by another jury. The jury
became aware that Mr. Fullwood’s original death sentence had
been reversed because of some technicality involving a mistake
the trial judge had made. This knowledge did lessen our sense of
responsibility in making the decision because we felt that twelve
other rational people had sentenced Mr. Fullwood to death;
5. We also became aware that any decision we made would be
appealed. I believe this information was revealed to us by one of
the other jurors who had learned this from an outside source. This
knowledge lessened our sense of responsibility in making our
decision because we felt that our decision was in no way final;
6. One juror in particular, Joyce Austin, was strongly influenced by
an outside source. Ms. Austin told us that her husband was
strongly pro-death penalty and that he was constantly telling her
during the trial and during deliberations that she should convict
him and sentence him to death. It was obvious to me that the
pressure brought upon her by her husband caused her to vote
exactly the way he wanted her to;
7. During deliberations, the jury became aware from outside sources
that life imprisonment did not mean life. As I recall, one of the
jurors had a family member that either worked at the courthouse
or was involved in the law in some way. According to the juror’s
spouse or family member, a life sentence meant that the person
would be paroled in 20-25 years. We discussed how Mr. Full-
wood had already been in jail since the murder and that given
credit for the time he had been in that he would be released on
a life sentence in another 10-15 years. That Mr. Fullwood would
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be paroled and back on the streets was a significant factor in our
not sentencing him to life in prison. In addition, because of the
possibility of parole if Mr. Fullwood was given a life sentence,
we did not give much consideration to the mitigating evidence.
The things that Mr. Fullwood had done since being in prison
were virtually meaningless because they supported a life sentence
and we weren’t going to give life when it meant he would be
paroled and be back on the streets;
8. The jury was definitely subject to outside influences which
included information that we were not provided during the trial.
The outside information was used by us in our deliberations. I
have not been threatened, coerced, or otherwise intimidated into
making this statement. I have been given the opportunity to
review this statement, to change anything that needed to be
changed, and to make any additions and/or deletions I deemed
proper.
Furthermore the affiant sayeth not. This the 13th day of February,
1998.
/s/
Laura Booth
STATE OF NORTH CAROLINA
COUNTY OF BUNCOMBE
Laura Booth did personally appear before me and being first duly
sworn did depose and say that she had read the attached affidavit and
that the information contained therein was true to the best of her
knowledge.
This the 13th day of February, 1998.
/s/ John M. Purvis
___________________________________
Notary Public
My Commission Expires: 5/7/2002
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