John Davis McNeill v.  MARVIN POLK, Warden, Central Prison, Raleigh, North Carolina

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JOHN DAVIS MCNEILL,
Petitioner-Appellant,
v. No. 05-12 
MARVIN POLK, Warden, Central
Prison, Raleigh, North Carolina,
Respondent-Appellee. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CA-00-606-5-H-HC)
Argued: September 18, 2006
Decided: January 31, 2007
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the opinion, in
which Judge King and Judge Gregory concurred in part. Judge King
wrote an opinion concurring in part and concurring in the judgment.
Judge Gregory wrote an opinion dissenting in part and concurring in
part.
COUNSEL
ARGUED: Milton Gordon Widenhouse, Jr., RUDOLF, WIDEN-
HOUSE & FIALKO, Chapel Hill, North Carolina, for Appellant. Jill
Ledford Cheek, NORTH CAROLINA DEPARTMENT OF JUS-

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TICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Mark E.
Edwards, EDWARDS AND TRENKLE, P.L.L.C., Durham, North
Carolina, for Appellant. Roy Cooper, Attorney General of North Car-
olina, Raleigh, North Carolina, for Appellee.
OPINION
SHEDD, Circuit Judge:
John Davis McNeill appeals the district court’s dismissal of his
petition for writ of habeas corpus. McNeill contends that he is entitled
to habeas relief or, at a minimum, an evidentiary hearing on his
claims. For the reasons set forth below, we affirm the judgment of the
district court.
I
On November 8, 1995, a North Carolina state jury convicted
McNeill of first-degree burglary and of the first-degree murder of
Donna Lipscomb. The evidence presented at trial tended to show that
McNeill had been dating Lipscomb periodically prior to her death. On
November 17, 1992, after McNeill and Lipscomb’s relationship
encountered difficulty, McNeill went to Lipscomb’s apartment armed
with a knife. After cutting the apartment’s telephone lines, McNeill
forced his way into the apartment, where he began arguing with Lips-
comb. The two then began shoving each other, and McNeill stabbed
Lipscomb repeatedly in the upper torso, fatally wounding her.
After the subsequent sentencing phase, the jury found as an aggra-
vating circumstance that McNeill committed the murder while
engaged in the commission of burglary. The jury further found two
statutory mitigating factors: (1) that McNeill committed the murder
while under the influence of mental or emotional disturbance and (2)
other circumstances arising from the evidence which are deemed to
have mitigating value. In addition, the jury found seven non-statutory
mitigating factors. Weighing these factors, the jury unanimously rec-
ommended a sentence of death for the murder conviction, and the trial
court imposed that sentence. On the first-degree burglary conviction,
the trial court sentenced McNeill to life imprisonment.
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On direct appeal, the Supreme Court of North Carolina affirmed
McNeill’s conviction, State v. McNeill, 485 S.E.2d 284 (N.C. 1997),
and the Supreme Court denied his petition for writ of certiorari, 522
U.S. 1053 (1998). McNeill then filed a Motion for Appropriate Relief
("MAR") in the Cumberland County Superior Court. After various
pleadings were filed, the superior court denied McNeill’s MAR and
his later motion for an evidentiary hearing. The state supreme court
declined to review the MAR court’s denial of relief. State v. McNeill,
544 S.E.2d 237 (N.C. 2000).
McNeill thereafter filed a petition for writ of habeas corpus in fed-
eral court in which he presented 18 claims for review. Eventually, the
district court granted Warden Marvin Polk’s ("the State") motion for
summary judgment and dismissed the petition. The district court,
however, granted a certificate of appealability ("COA") on the follow-
ing issues: (1) whether McNeill was denied effective assistance of
counsel when trial counsel admitted without McNeill’s consent that
he was guilty of non-felonious breaking and entering, (2) whether
McNeill was denied effective assistance of counsel when trial counsel
admitted without McNeill’s consent that he was guilty of second-
degree murder, and (3) whether McNeill’s due process rights were
violated when the trial court permitted the jury to find him eligible for
a death sentence if it concluded that the aggravating and mitigating
circumstances were in equipoise.1 On appeal, we expanded the COA
to include three additional issues: (1) whether McNeill’s due process
rights were violated when a juror consulted a dictionary to determine
the meaning of the term "mitigate"; (2) whether McNeill was denied
effective assistance of counsel when trial counsel failed to investigate
and present certain evidence concerning McNeill’s behavior, charac-
ter, and mental capacity; and (3) whether McNeill’s due process
rights were violated when a juror failed to disclose that his half-sister
had been murdered by an ex-boyfriend.
1At oral argument, McNeill abandoned his claim that the jury instruc-
tions were constitutionally flawed because they permitted the imposition
of a death sentence where the aggravating and mitigating circumstances
are in equipoise. See Kansas v. Marsh, 126 S.Ct. 2516 (2006) (holding
that state statute which permits imposition of a death sentence when jury
determines that aggravating and mitigating circumstances are in equi-
poise does not violate Eighth Amendment). Accordingly, we do not con-
sider this claim further.
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II
We review de novo the district court’s application of the standards
of 28 U.S.C. § 2254(d) to the findings and conclusions of the MAR
court. Robinson v. Polk, 438 F.3d 350, 354-55 (4th Cir. 2006). Pursu-
ant to this review, our inquiry is limited to an analysis of whether the
MAR court’s adjudication of McNeill’s federal claims "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," or "resulted in a decision that was based
on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2).
The "contrary to" and "unreasonable application of" clauses of
§ 2254(d)(1) have meanings which may be satisfied independently of
each other. Williams v. Taylor, 529 U.S. 362, 404-05 (2000). A state
court decision is contrary to clearly established federal law "if the
state court applies a rule different from the governing law set forth in
[Supreme Court] cases, or if it decides a case differently than [the
Supreme Court] on a set of materially indistinguishable facts." Bell v.
Cone, 535 U.S. 685, 694 (2002). A state court decision is an unrea-
sonable application of clearly established federal law "if the state
court correctly identifies the governing legal principle from [Supreme
Court] decisions but unreasonably applies it to the facts of the particu-
lar case." Id. Having said this, we note that a state court’s decision
will not be disturbed where it is premised on an erroneous or incorrect
— but not unreasonable — application of federal law. Williams, 529
U.S. at 410.
III
A.
I begin my analysis with the State’s contention that the rules of
procedural default bar our review of the merits of McNeill’s claims
that Juror Sermarini improperly consulted a dictionary and that Juror
Lee failed to disclose that his half-sister had been murdered.2
2Because Judge King and Judge Gregory do not agree with my conclu-
sion that McNeill’s juror misconduct claims are procedurally defaulted,
I write only for myself in part III A of this opinion.
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1.
The doctrine of procedural default provides that "a federal habeas
court may not review constitutional claims when a state court has
declined to consider their merits on the basis of an adequate and inde-
pendent state procedural rule." Burket v. Angelone, 208 F.3d 172, 183
(4th Cir. 2000). A state procedural rule is adequate if it is regularly
or consistently applied by the state courts, Johnson v. Mississippi, 486
U.S. 578, 587 (1981), and it is independent if it does not depend on
a federal constitutional ruling, Ake v. Oklahoma, 470 U.S. 68, 75
(1985). Where a state procedural rule is both adequate and indepen-
dent, it will bar consideration of the merits of claims on habeas
review unless the petitioner demonstrates cause for the default and
prejudice resulting therefrom or that a failure to consider the claims
will result in a fundamental miscarriage of justice. Coleman v.
Thompson, 501 U.S. 722, 750 (1991).
The MAR court rejected several of McNeill’s claims, including his
improper influence and biased juror claims, based on N.C. Gen. Stat.
§ 15A-1420(b)(1), which provides:
A motion for appropriate relief made after the entry of judg-
ment must be supported by affidavit or other documentary
evidence if based upon the existence or occurrence of facts
which are not ascertainable from the records and any tran-
script of the case or which are not within the knowledge of
the judge who hears the motion.
Specifically, the MAR court found that these claims were supported
only by inadmissible evidence in the form of two affidavits which
contained hearsay and one unsworn, signed statement of a juror. After
excluding this inadmissible evidence, the MAR court determined that
McNeill’s claims were not supported by the requisite evidence under
the statute, and it denied relief.3 The question now before us is
3To the extent that McNeill maintains that the state court erred when
it interpreted § 15A-1420(b)(1) as requiring that an MAR be accompa-
nied by admissible affidavits, I decline to question the MAR court’s view
of the statute’s meaning. See Barnes v. Thompson, 58 F.3d 971, 974 n.2
(4th Cir. 1995) (noting that a federal habeas court "does not have license
to question a state court’s finding of procedural default," nor to question
"whether the state court properly applied its own law").
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whether the MAR court’s rejection of an MAR supported by inadmis-
sible evidence constitutes an adequate and independent state proce-
dural rule.4 I conclude that it does.
In Richmond v. Polk, 375 F.3d 309 (4th Cir. 2004), we held that
§ 15A-1420(b)(1) qualifies as an adequate and independent state pro-
cedural rule when it is employed by the state courts to deny, at the
pleading stage, MAR claims which are supported by insufficient doc-
umentary evidence. There, the MAR court, relying on § 15A-
1420(b)(1), summarily denied two ineffective assistance of counsel
claims because they were presented with no affidavit or supporting
evidence and one ineffective assistance claim because the proffered
affidavit "did not actually support Richmond’s claim." 375 F.3d at
322. On habeas review, we held that procedural default barred review
of these claims. Id. In so holding, we found that § 15A-1420(b)(1) "is
an adequate state procedural rule because an unambiguous court rule
such as N.C. Gen. Stat. § 15A-1420(b)(1) is necessarily firmly estab-
lished. . . and because North Carolina courts [have] regularly and con-
sistently applied it. . . ." 375 F.3d at 323 (internal punctuation and
citations omitted). We further held that § 15A-1420(b)(1) "is an inde-
pendent state procedural rule given that it does not depend on any fed-
eral constitutional ruling." 375 F.3d at 324.
I believe that our decision in Richmond, which was based on facts
nearly identical to those before us now, applies here. I see no distinc-
tion between a state court’s denial of an MAR which is supported by
affidavits deemed to be unhelpful (as in Richmond) and a denial of
an MAR which is supported by affidavits found to be inadmissible (as
in the instant case). In both situations, the state court has, at the plead-
ing stage, found an MAR to be insufficiently supported by affidavit
or documentary evidence under § 15A-1420(b)(1). Richmond, then,
would appear to foreclose our review of the merits of McNeill’s claims.5
4The MAR court’s alternative ruling that McNeill’s claims fail on the
merits does not preclude consideration of procedural default here. Harris
v. Reed, 489 U.S. 255, 264 n.10 (1989).
5Our holding in Richmond also proves fatal for McNeill’s assertion
that the MAR court acted improperly in ruling on the admissibility of
evidence at the pleading stage. In Richmond, the state court denied Rich-
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However, McNeill contends that § 15A-1420(b)(1) is not an ade-
quate state rule of procedure as applied in this case. As discussed ear-
lier, a rule is adequate if the state courts have applied it in a consistent
and regular manner. Johnson, 486 U.S. at 587. Therefore, for his
argument to succeed, McNeill must point to "a non-negligible number
of cases" in which the North Carolina courts have allowed an MAR
to proceed where it was supported by inadmissible evidence. McCar-
ver v. Lee, 221 F.3d 583, 589 (4th Cir. 2000). Nevertheless, "consis-
tent or regular application of a state rule of procedural default does
not require that the state court show an undeviating adherence to such
rule admitting of no exception so long as the rule has as a general rule
been applied in the vast majority of cases." Brown v. Lee, 319 F.3d
162, 170 (4th Cir. 2003).
In an attempt to make this showing, McNeill cites Fullwood v. Lee,
290 F.3d 663 (4th Cir. 2002); Conner v. Polk, 407 F.3d 198 (4th Cir.
2005); Jones v. Cooper, 311 F.3d 306 (4th Cir. 2002); Hinton v. Hin-
ton, 145 S.E. 615 (N.C. 1928); and State v. Buckom, 485 S.E.2d 319
(N.C. 1997). McNeill maintains that in each of these cases the courts
neglected to apply the procedural bar of § 15A-1420(b)(1). However,
upon close examination, these cases simply do not support McNeill’s
argument.
In Conner, the MAR court had stricken affidavits which contained
inadmissible hearsay. Despite this ruling, on subsequent habeas
review we examined the substance of these affidavits. In doing this,
we expressly refused to comment on the propriety of the MAR court’s
exclusion of the affidavits. 407 F.3d at 205 n.3. Yet Conner actually
cuts against McNeill’s position because the fact that the state court
struck portions of an affidavit as containing inadmissible hearsay
shows a consistent rather than inconsistent application of the evidenti-
ary rule now at issue.
mond’s MAR on the pleadings based on its conclusion that one of the
affidavits proffered by Richmond did not support his position, and we
subsequently held the claim to be procedurally defaulted. 375 F.3d at
320, 328-29. In so holding, we found no fault in the MAR court’s resolu-
tion of evidentiary issues at the pleading stage.
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Likewise, in Jones, the MAR court, "relying on an unspecified
state rule of evidence, quashed the affidavit and dismissed the MAR."
311 F.3d at 309. Again, on habeas review, we implicitly accepted the
affidavit and rejected the petitioner’s claims on the merits. Nonethe-
less, as with Conner, we did not question whether the state court’s
ruling was proper, and our review of the merits of Jones’ claims has
no bearing on the consistency of the state courts’ application of
§ 15A-1420(b)(1).
Hinton and Buckom, which McNeill cites as instances in which the
North Carolina courts relied on affidavits or other evidence to estab-
lish juror misconduct, similarly fail to aid him. Neither gives any indi-
cation as to whether the affidavits contained hearsay or other
inadmissable evidence. In addition, Hinton does not involve the appli-
cation of § 15A-1420(b)(1), limiting its relevance here. Further, I can-
not discern whether the State ever raised the procedural bar of § 15A-
1420(b)(1) in Buckom. See Meadows v. Legursky, 904 F.2d 903, 907
(4th Cir. 1990) (en banc) (discounting, for purposes of adequacy
inquiry, relevance of cases where it was not evident that State had
advanced procedural bar).
Finally, Fullwood cannot bear the import which McNeill would
assign to it. Although in Fullwood both the MAR court and this court
considered the affidavit of a juror attesting to the misconduct of
another juror, this affidavit was, at least in part, not based on hearsay.
290 F.3d at 676. Furthermore, it is unclear whether the State invoked
the procedural bar of § 15A-1420(b)(1), see Meadows, 904 F.2d at
907, and our opinion gives the impression that it did not. Instead, it
appears that the evidentiary question in Fullwood was the extent to
which a juror’s affidavit could be used to impeach a verdict. 290 F.3d
at 679-80. In any event, even if the state court did decide not to apply
§ 15A-1420(b)(1) in Fullwood, this one instance does not suffice to
satisfy McNeill’s burden of showing a non-negligible number of
cases in which the procedural rule was not enforced. Brown, 319 F.3d
at 170.
In Richmond, we found § 15A-1420(b)(1) to be an adequate and
independent state rule of procedure, and McNeill fails to show that
the state courts have applied this rule inconsistently with regard to
inadmissible evidence. Therefore, I conclude that § 15A-1420(b)(1),
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when used to deny an MAR which is unsupported by admissible affi-
davits or other evidence, is an adequate and independent state proce-
dural rule which bars consideration of the merits of a petitioner’s
claims on federal habeas review.6 Having reached this conclusion, I
turn to the question of whether McNeill has made a showing of cause
and prejudice sufficient to overcome his procedural default.7
2.
To establish cause, McNeill must "show that some objective factor
external to the defense impeded counsel’s efforts to comply with"
§ 15A-1420(b)(1). Richmond, 375 F.3d at 324. Examples of these
external factors are situations where the factual or legal basis for a
claim is not reasonably available to counsel or where some interfer-
ence by officials makes compliance with the procedural rule impracti-
cable. Murray v. Carrier, 477 U.S. 478, 488 (1986).
In an apparent attempt to argue cause, McNeill asserts that he had
no way of presenting a claim of juror misconduct without a means of
compelling a juror to testify by way of deposition or subpoena at an
evidentiary hearing and that neither of these means was available in
state court. In addition, McNeill maintains that it is unreasonable to
expect him to obtain an affidavit from the very juror accused of mis-
conduct in order to receive an evidentiary hearing or a ruling on the
merits of his claim.
I find these arguments to be unpersuasive for two reasons. First, as
the State notes, McNeill had the ability to seek a deposition or other
6McNeill is incorrect in his contention that this case is controlled by
Robinson and Conaway v. Polk, 453 F.3d 567 (4th Cir. 2006). Robinson
did not address procedural default, and in Conaway the MAR court had
not relied on a state procedural rule as a basis for denying relief.
7As noted earlier, a habeas petitioner can also escape procedural
default by demonstrating a fundamental miscarriage of justice. To do so
in the context of a death sentence, he must prove by clear and convincing
evidence that, but for a constitutional error, no reasonable juror would
have found him eligible for the death penalty under the applicable state
law. Sawyer v. Whitley, 505 U.S. 333, 336 (1992). McNeill does not
argue that he meets this standard.
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discovery at the time he filed his MAR, thus providing him with a
way of presenting evidence in support of his MAR. See State v. Buck-
ner, 527 S.E.2d 307 (N.C. 2000) (holding that a party has the right
to seek discovery upon filing of an MAR). Second, McNeill’s conten-
tion that it is unreasonable to require him to obtain admissible evi-
dence from the particular juror accused of misconduct is
unconvincing. Based on North Carolina’s rule permitting the intro-
duction of juror testimony regarding the existence of an outside influ-
ence upon the jury, McNeill could have supported his MAR with an
affidavit from any member of the jury. Moreover, McNeill obtained
an unsworn statement from Juror Sermarini, the very juror accused of
engaging in misconduct by consulting a dictionary. It is not unreason-
able to require that McNeill go one step further and obtain admissible
evidence from Sermarini. Given this and given the availability of dis-
covery, it is also not unreasonable to expect McNeill to obtain admis-
sible evidence from Juror Lee, who is accused of bias for failing to
reveal that his half-sister was murdered by an ex-boyfriend. For these
reasons, McNeill has failed to show cause sufficient to overcome his
procedural default.8
Due to McNeill’s procedural default, I do not reach the merits of
his claims of an improper influence upon the jury and of a biased
juror. Accordingly, I would affirm the district court’s dismissal of
these claims on the basis of procedural default.
B.
We now address McNeill’s claims that he was denied his right to
effective assistance of counsel. As noted earlier, McNeill contends
that his trial counsel failed to gather and present evidence of his good
character and of his impaired mental capacity and conceded, without
permission, that he was guilty of second-degree murder and of non-
felonious breaking and entering.
8As McNeill has failed to show cause, I do not engage in an analysis
of prejudice.
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1.
To succeed on an ineffective assistance of counsel claim, a peti-
tioner must satisfy the familiar standard of Strickland v. Washington,
466 U.S. 668 (1984). Under this standard, two prongs must be met:
(1) the petitioner must show that his counsel’s performance "fell
below an objective standard of reasonableness," and (2) the petitioner
must show that there "is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would have
been different." Id. at 688, 694.
In this case, the MAR court considered and denied McNeill’s inef-
fective assistance of counsel claims on the merits, finding that trial
counsel’s representation was not objectively unreasonable.9 Accord-
ingly, the deferential standard mandated by § 2254(d) applies.
2.
McNeill first contends that his trial counsel was ineffective in that
he failed to conduct a sufficient investigation and to present evidence
of McNeill’s good character and of impaired mental capacity. In sup-
port of this claim, McNeill alleges three specific instances in which
trial counsel was ineffective: (1) counsel failed to investigate,
develop, and present sufficient mitigation evidence by ineptly investi-
gating and examining witnesses concerning McNeill’s background
and mental capacity; (2) counsel presented materially false and inac-
curate information suggesting McNeill adapted poorly to incarcera-
tion; and (3) counsel failed to present expert testimony concerning
McNeill’s impaired mental capacity. On each claim, we find the deci-
sion of the MAR court to be correct.
9The record indicates that the MAR court denied McNeill’s ineffective
assistance of counsel claims both on procedural grounds and on the mer-
its. While it appears that the State argued before the district court that
consideration of these claims was barred by procedural default, the State
makes no such argument here. Thus, we reach the merits of these claims.
Wilson v. Ozmint, 352 F.3d 847, 868 (4th Cir. 2003) (stating that proce-
dural default can be waived).
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a.
McNeill contends that trial counsel failed to investigate, develop,
and present sufficient mitigation evidence by ignoring or neglecting
to find five character witnesses who knew McNeill during junior high
school. However, the trial transcript indicates that trial counsel did
present evidence from character witnesses who knew McNeill as an
adult and who could testify to his character at the time of the murder
and at the time of trial and sentencing. Specifically, Garris Faison,
McNeill’s supervisor, testified as to McNeill’s work ethic and as to
his responsibility as an electrician, and William Harvey Thornton, Jr.,
McNeill’s neighbor, testified that he observed McNeill’s loving rela-
tionship with the victim and her children. Further, Mark Hutchens,
McNeill’s probation officer for a prior drug offense, testified that
McNeill had successfully completed his probation, paid all fines due,
and completed community service. Hutchens also told the jury that he
would rate McNeill very highly in terms of his performance as a pro-
bationer. Finally, Anne Campbell, McNeill’s former jailor, testified
that McNeill was an exemplary inmate, "every detention officer’s
dream," and a "blessing." J.A. 772, 783. She further stated that
McNeill would lead other inmates in Bible studies and prayers. This
evidence was certainly more probative of McNeill’s character than
evidence which would have been elicited from witnesses who knew
him in the more distant past.
In addition, the record indicates that trial counsel, when confronted
with overwhelming evidence tending to establish that McNeill was
guilty of a particularly heinous murder, chose to pursue a strategy of
arguing that McNeill lacked the mens rea requisite for premeditation.
Pursuant to this strategy, counsel retained a psychologist, John War-
ren, and presented exhaustive mental health testimony designed both
to rebut mens rea at the guilt phase and to establish a basis for mitiga-
tion at the sentencing phase. This strategic choice was borne out in
the presentation of evidence which indicated that McNeill did not
view a knife as a lethal weapon and that he did not understand Lips-
comb’s communication that she did not want to talk to him. Further
testimony of Warren — who testified at both the guilt and sentencing
phases — demonstrated that McNeill had a history of alcohol abuse
in his family, had been a witness to frequent fights with weapons, and
had seen seven or eight people shot or stabbed. This evidence brought
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out the details of McNeill’s background and childhood which he now
claims were lacking. Warren also testified as to the effects on McNeill
of the history of substance abuse, criminal behavior, and violence in
his family and indicated that these effects would include aggression,
impulsivity, low self-esteem, dependency, depression, and substance
abuse. Finally, Warren stated that McNeill was in an intoxicated,
emotionally aroused state when he entered the victim’s apartment,
and that this augured against any premeditation to kill.
In the face of the investigation conducted by trial counsel and the
evidence presented at trial, the MAR court’s finding that counsel’s
investigation and presentation of mitigation evidence and character
witnesses did not fall below an objective standard of reasonableness
was not contrary to or an unreasonable application of clearly estab-
lished federal law.
b.
McNeill next claims that counsel was ineffective in presenting evi-
dence of an infraction he committed while in prison, evidence which
McNeill contends was materially false and misleading. The evidence
of the prison infraction was presented in the context of Warren’s testi-
mony regarding McNeill’s adaptation to prison life and exemplary
behavior in prison. In testifying as to the infraction, Warren was read-
ing from prison records, and he noted that McNeill had no infractions
except that he "failed to report to work" and, as a result, was given
"forty-eight hours of administrative segregation." J.A. 795. Warren
further noted that the infraction was "very, very minor" in the context
of McNeill’s overall positive adjustment to prison life. J.A. 797.
McNeill contends that he told trial counsel that the infraction report
was an error and that he did not commit the infraction, yet counsel
allowed the infraction to be presented to the jury anyway.
The MAR court’s denial of this claim of ineffective assistance of
counsel was not unreasonable. First, McNeill presented no admissible
evidence in support of his position that he did not commit the infrac-
tion. Second, the infraction was presented in the context of over-
whelmingly positive testimony regarding McNeill’s time in prison.
Third, the trial judge gave a peremptory instruction that "all of the
evidence tends to show that the defendant made a good adjustment to
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prison while awaiting trial." J.A. 920. In these circumstances, trial
counsel’s presentation of evidence of the infraction was not objec-
tively unreasonable.
c.
Next, McNeill asserts that counsel was deficient in failing to pre-
sent expert testimony regarding his diminished capacity. However,
the record indicates that McNeill presented abundant evidence of his
diminished mental capacity in his case-in-chief during the guilt phase
of his trial. We find without merit McNeill’s contention that counsel
was ineffective by not presenting this evidence again at the sentencing
phase, especially as the trial court instructed the jury that it could con-
sider, during the sentencing phase, all evidence presented during the
guilt phase. See N.C. Gen. Stat. § 15A-2000(a)(3). Accordingly, the
MAR court’s rejection of this claim on the merits was not contrary
to or an unreasonable application of clearly established federal law.
3.
We next consider McNeill’s argument that counsel was ineffective
by admitting, without McNeill’s consent, that he was guilty of
second-degree murder and non-felonious breaking and entering.
Under Florida v. Nixon, 543 U.S. 175 (2004), trial counsel’s perfor-
mance cannot be constitutionally deficient based solely on his failure
to seek McNeill’s consent before admitting guilt to the jury. Instead,
McNeill must show that counsel’s decision to admit guilt was objec-
tively unreasonable under the Strickland standard. Id. at 192. The
MAR court rejected these claims on the merits.
McNeill’s contention that counsel was deficient in admitting that
he committed second-degree murder is meritless. The record indicates
that McNeill, after a hearing, stipulated to the commission of second-
degree murder. At this hearing, McNeill indicated that he understood
that the stipulation gave trial counsel the right to argue to the jury that
he was guilty of second-degree murder. This argument was consistent
with counsel’s strategy of contending that McNeill lacked the mens
rea to commit premeditated murder. Further, McNeill’s testimony
during trial that he "did not intend to hurt" Lipscomb cannot stand for
the proposition that he did not intend to admit he committed second-
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degree murder, as he now maintains. In light of the evidence showing
that McNeill, armed with a knife, cut Lipscomb’s telephone line,
forced his way into her apartment, and stabbed her to death,
McNeill’s statement goes to his premeditation to murder rather than
a refusal to admit guilt to second-degree murder. The statement also
supports trial counsel’s guilt phase strategy of arguing that McNeill
had a diminished mental capacity due to his emotional state and,
therefore, was incapable of committing premeditated murder. It was
in this context that McNeill’s statement was offered, and in this con-
text McNeill’s statement was not contrary to counsel’s defense strat-
egy of showing diminished capacity and lack of intent. Given the
factual evidence presented at McNeill’s trial, counsel’s strategic
choice to admit guilt to second-degree murder while arguing that pre-
meditation was lacking was not objectively unreasonable.
Finally, McNeill’s assertion that counsel erred in admitting he was
guilty of non-felonious breaking and entering likewise fails.
McNeill’s stipulation and his testimony at trial admitted the facts con-
stituting the elements of non-felonious breaking and entering, and an
admission to this offense links to an admission to second-degree mur-
der in that both show an absence of prior intent. Again, trial counsel’s
strategy of arguing that McNeill lacked the capacity to commit pre-
meditated murder dictated an admission of non-felonious breaking
and entering as well as an admission of second-degree murder.
McNeill has failed to rebut the state court’s factual determination that
admission to non-felonious breaking and entering was part of coun-
sel’s trial strategy. He has similarly failed to show that this strategy
was objectively unreasonable. Accordingly, his claim for relief must
be rejected.
IV
Based on the foregoing, we affirm the district court’s dismissal of
McNeill’s petition for writ of habeas corpus.
AFFIRMED
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KING, Circuit Judge, concurring in part and concurring in the judg-
ment:
I fully agree with Judge Shedd’s opinion with respect to the denial
of McNeill’s ineffective assistance of counsel claims, and I concur
(for different reasons) in the denial of relief on his juror misconduct
claims.1 I part ways with my friend Judge Shedd at the point where
he determines that the juror misconduct claims were procedurally
defaulted. As I see it, these claims were not defaulted, because the
MAR court’s rejection of them — on the basis that McNeill’s affida-
vits contained inadmissible evidence — was not premised on an ade-
quate and independent state procedural rule. Accordingly, I find it
necessary to assess the substance of the juror misconduct claims and,
upon so doing, conclude, as did the MAR court, that they fail on their
merits.2 In these circumstances, Judge Shedd and I ultimately reach
the same result on the juror misconduct claims.
1In this proceeding, McNeill has been awarded a certificate of appeala-
bility on five of his constitutional claims. One of those claims, on sen-
tencing instructions, has been rendered moot by the Supreme Court’s
recent decision in Kansas v. Marsh, 126 S. Ct. 2516 (2006). Of the
remaining four claims, two involve ineffective assistance of counsel
issues, and the other two involve juror misconduct issues centering, first,
on Juror Lee’s failure to disclose his half-sister’s murder and, second, on
Juror Sermarini’s consultation of a dictionary to learn the definition of
"mitigate." For convenience, I refer to these four claims by their respec-
tive categories — "ineffective assistance of counsel" and "juror miscon-
duct."
2The MAR court (the Superior Court of Cumberland County, North
Carolina) denied McNeill’s juror misconduct claims by Order of March
8, 2000, on two alternative bases. First, the court denied the claims as a
matter of procedural law, relying on North Carolina General Statute sec-
tion 15A-1420(b)(1). See Order 6, 8 (J.A. 1044, 1046). Second, the court
denied both claims on their merits, as a matter of substantive law. See id.
at 7, 9 (J.A. 1045, 1047). As the court observed in so doing, "[t]he proce-
dural and substantive grounds for denial of [the claims] are independent
of each other, and each constitutes an independent and separate ground
for denial of the claim." Id. at 9 (J.A. 1047).
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I.
First, as explained below, I would rule that McNeill’s juror miscon-
duct claims were not procedurally defaulted because the State has not
established that an adequate and independent procedural ground bars
our review of their merits. Under the relevant doctrine, pursuit of a
federal habeas corpus claim is barred when a state court has declined
to address the claim because the petitioner failed to satisfy an ade-
quate state procedural requirement. Coleman v. Thompson, 501 U.S.
722, 729-30 (1991). The Supreme Court has held that a "state proce-
dural ground is not adequate unless the procedural rule is strictly or
regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587 (1988)
(internal quotation marks omitted). I will undertake to explain my
position on the procedural default issue in further detail.
A.
As a threshold matter, our Court has never been called upon to
squarely address the issue of which party to a federal habeas corpus
proceeding bears the burden of establishing the adequacy (or inade-
quacy) of a state procedural bar. In Robinson v. Polk, we indicated
that the burden falls on the state, observing that, in the situation there
presented:
The State has not cited, and we have not found, a single
North Carolina decision squarely holding that the MAR
must be accompanied by admissible evidence in order for
the petitioner to demonstrate entitlement to an evidentiary
hearing. . . . Because it is not clear that North Carolina rules
require a MAR to be accompanied by admissible evidence
. . . we cannot hold that [the petitioner’s] failure to submit
admissible evidence demonstrates a lack of diligence before
the MAR court.
438 F.3d 350, 367 (4th Cir. 2006); accord Conaway v. Polk, 453 F.3d
567, 584 (4th Cir. 2006) ("There is no authority under North Carolina
law (nor has the State asserted any to us) requiring that such affidavits
and documents themselves constitute admissible evidence."). In
McCarver v. Lee, however, we required the petitioner to make what
we called a "colorable showing" that the asserted procedural bar "is
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not consistently and regularly applied," by citing "a non-negligible
number of cases" in which the procedural bar was not applied. 221
F.3d 583, 589 (4th Cir. 2000); accord Reid v. True, 349 F.3d 788, 805
(4th Cir. 2003) ("In order to demonstrate that [the rule] is inadequate
in this particular instance, [the petitioner] ‘would need to cite a non-
negligible number of cases in which [involuntary plea] claims could
have been brought on direct review but were not, and in which the
collateral review court nonetheless failed to bar the claim under [the
rule].’"). At first glance, the principles underlying Robinson and
McCarver are not entirely compatible, in that one rule (Robinson)
would place the burden on the state, while the other (McCarver)
would mandate that the petitioner make a "colorable showing" that
the bar does not apply. See McCarver, 221 F.3d at 589; Robinson, 438
F.3d at 367.
Taking the view most favorable to the State in this proceeding, our
court has almost — but not squarely — resolved the burden question.
And our sister circuits that have addressed the issue disagree about
where the burden should fall, with the majority deeming it to fall on
the state. For example, the Tenth Circuit has determined that the state
is ultimately responsible for proving the adequacy of a state proce-
dural bar, reasoning that the bar constitutes an affirmative defense,
and that the state is in the best position to establish the uniform appli-
cation of a state procedural rule. Hooks v. Ward, 184 F.3d 1206,
1216-17 (10th Cir. 1999).3 The court in Hooks observed, however,
that the petitioner has the "responsibility to put the adequacy of the
state procedural bar at issue before the state is required to come for-
ward with its proof." Id. at 1217. Under this burden-shifting frame-
work,
[o]nce the state pleads the affirmative defense of an inde-
pendent and adequate state procedural bar, the burden to
3A state procedural bar constitutes an affirmative defense in a federal
habeas corpus proceeding that the state is obliged to either raise or lose.
See Gray v. Netherland, 518 U.S. 152, 165-66 (1996). And, as a settled
general rule, the burden of proving an affirmative defense is on the party
asserting it. See, e.g., Stonehenge Eng’g Corp. v. Employers Ins. of Wau-
sau, 201 F.3d 296, 302 (4th Cir. 2000); Girard v. Gill, 261 F.2d 695, 697
(4th Cir. 1958).
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place that defense in issue shifts to the petitioner. This must
be done, at a minimum, by specific allegations by the peti-
tioner as to the inadequacy of the state procedure. The scope
of the state’s burden of proof thereafter will be measured by
the specific claims of inadequacy put forth by the petitioner.
Id.
The Ninth Circuit found the Tenth Circuit’s reasoning in Hooks to
be persuasive, also concluding that the ultimate burden of proving the
adequacy of a state procedural bar lies with the state. See Bennett v.
Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). In so ruling, the Ben-
nett court adopted the burden-shifting framework spelled out in
Hooks, holding that, once a procedural bar defense is raised by the
state, the petitioner’s burden can be satisfied by "asserting specific
factual allegations that demonstrate the inadequacy of the state proce-
dure, including citation to authority demonstrating inconsistent appli-
cation of the rule." Bennett, 322 F.3d at 586. If the petitioner can
satisfy this minimal burden, the state then bears the ultimate burden
of proving the adequacy of the state procedural rule. Id.
The Fifth Circuit, on the other hand, presumes the adequacy of a
state procedural rule, but it allows the presumption to be rebutted if
the state procedural rule is not "strictly or regularly followed." See
Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995) (internal quotation
marks omitted). Under the rebuttable presumption framework, "[t]he
petitioner bears the burden of showing that the state did not strictly
or regularly follow a procedural bar around the time of his direct
appeal [and] has failed to apply the procedural bar rule to claims iden-
tical or similar to those raised by the petitioner himself." Stokes v.
Anderson, 123 F.3d 858, 860 (5th Cir. 1997). The Second Circuit has
taken a middle ground, assuming — without deciding — that
"[b]ecause the procedural bar is a defense to a habeas claim, . . . the
state bears the burden of proving the adequacy of the state procedural
rule." Cotto v. Herbert, 331 F.3d 217, 238 n.9 (2d Cir. 2003).
In my view, the more sensible rule is the one espoused by the Ninth
and Tenth Circuits, that is, that the burden of proving the adequacy
of a state procedural bar ultimately falls on the state. Indeed, our deci-
sions in McCarver and Robinson are readily reconcilable with the
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burden-shifting framework, in that, although McCarver requires that
a petitioner make a "colorable showing" of the inadequacy of a state
procedural rule, Robinson indicates that the ultimate burden of prov-
ing that such a procedural rule is adequate falls upon the state. See
McCarver, 221 F.3d at 589; Robinson, 438 F.3d at 367. In this situa-
tion, McNeill has satisfied his minimal obligation under the burden-
shifting framework, making a "colorable showing" of the inadequacy
of the state procedural rule. He has done so by relying on decisions
that assertedly support the proposition that the state procedural rule
has not been applied in the manner necessary to render it an adequate
procedural ground for denying relief. Whether we ultimately agree
with McNeill on the merits of his contention need not be resolved, of
course, at the "colorable showing" stage. And, in my view, an ample
"colorable showing" has been made by McNeill in this case.4 I am
content, however, in the context of this proceeding, to adhere to the
procedure recently utilized by the Second Circuit. See Cotto, 331 F.3d
at 238 n.9 ("Because the procedural bar is a defense to a habeas claim,
we assume without deciding that the state bears the burden of proving
the adequacy of the state procedural rule.").5
4A "colorable claim" has been described as one that "is legitimate and
that may reasonably be asserted, given the facts presented and the current
law (or a reasonable and logical extension or modification of the current
law)." Black’s Law Dictionary 196 (7th ed. 2000). McNeill relied on sev-
eral decisions for his allegation that North Carolina General Statute sec-
tion 15A-1420(b)(1), as applied, is not an adequate state procedural bar.
For example, in Fullwood v. Lee, the MAR court reached the merits of
a juror bias claim where the petitioner presented an affidavit containing
inadmissible hearsay from another juror. 290 F.3d 663, 676-80 (4th Cir.
2002). In these circumstances, McNeill has made, in my view, the neces-
sary colorable showing.
5I disagree with Judge Shedd’s contention that Robinson v. Polk has
no bearing on McNeill’s argument that the Statute as applied here is not
clearly established. Although Robinson did not involve a procedural
default issue, it is instructive and relevant because it addresses the ade-
quacy of the Statute and the issue of where the burden of proving such
adequacy falls. In any event, the authority in our circuit suggests that this
panel would be prudent to address the merits of McNeill’s juror miscon-
duct claims. We have consistently deemed it appropriate to address the
merits of a petitioner’s claim where we were uncertain whether a state
procedural rule could be properly considered adequate and independent,
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B.
I will thus assume, without deciding, that we would place the bur-
den of establishing the adequacy of a state procedural rule on the
state. On the basis of that assumption, I conclude that, in this proceed-
ing, the State has failed to carry its burden of proving the adequacy
of the procedural rule it seeks to apply against McNeill. Under the
North Carolina statute at issue,
[a] motion for appropriate relief made after the entry of
judgment must be supported by affidavit or other documen-
tary evidence if based upon the existence or occurrence of
facts which are not ascertainable from the records and any
transcript of the case or which are not within the knowledge
of the judge who hears the motion.
N.C. Gen. Stat. § 15A-1420(b)(1) (the "Statute"). The State contends
that, under the Statute, an MAR must be accompanied by an affidavit
made by a declarant who has personal knowledge of the facts
asserted. As in Robinson and Conaway, however, the State has not
pointed to any North Carolina authorities explicitly establishing that
the Statute so requires, and has been uniformly applied to so require.
See Robinson, 438 F.3d at 367; Conaway, 453 F.3d at 584. The State
instead relies on an inapposite opinion of this Court and an unrelated
North Carolina procedural rule, neither of which supports its conten-
tion.
1.
First, the State urges us to import into our procedural default analy-
sis an observation made in Burket v. Angelone that, in assessing the
merits of a federal habeas corpus claim, "we do not sit to review the
admissibility of evidence under state law unless erroneous evidentiary
without deciding where the burden falls. See Burket v. Angelone, 208
F.3d 172, 184 (4th Cir. 2000) (reviewing merits of habeas corpus claims
where scope of procedural bar was unclear); Bacon v. Lee, 225 F.3d 470,
477 (4th Cir. 2000) (same); Royal v. Taylor, 188 F.3d 239, 248 (4th Cir.
1999) (same).
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rulings were so extreme as to result in a denial of a constitutionally
fair proceeding." 208 F.3d 172, 186 (4th Cir. 2000). The State’s reli-
ance on this aspect of Burket, however, is misplaced. Before reaching
the issue of whether the state habeas court properly excluded affida-
vits opposing dismissal of Burket’s ineffective assistance claims, we
first ascertained that we were not precluded from reaching their merits
by the state court’s ruling that Burket’s claims failed because of a Vir-
ginia procedural rule. Id. at 184. The asserted procedural rule was
unrelated to the sufficiency of the affidavits, however, and simply
precluded a habeas petitioner from challenging the truth and accuracy
of his own statements concerning the adequacy of his trial counsel
and the voluntariness of his guilty plea. See id. at 183 (citing Ander-
son v. Warden, 281 S.E.2d 885, 888 (Va. 1981)).
Because we were unsure of the scope of Virginia’s procedural rule,
we proceeded to address the merits of Burket’s ineffective assistance
claims. See id. at 184. In assessing the merits of those claims, we
emphasized the limited role of a federal habeas court in reviewing
evidentiary determinations made by a state court. See id. at 186.
Viewed in context, Burket does not support the State’s contention that
we are barred from reviewing the merits of McNeill’s juror miscon-
duct claims. Burket’s recognition of our limited role in reviewing
state court evidentiary determinations went to our review of the merits
of the claims in that case, not to an analysis of the procedural bar
issue. See id.
2.
Second, the State’s procedural bar position relies on the North Car-
olina civil procedure rule (as well as the analogous federal rule) on
summary judgment, which mandates that affidavits "be made on per-
sonal knowledge" and "show affirmatively that the affiant is compe-
tent to testify to the matters stated therein." N.C. Gen. Stat. § 1A-1,
R. 56(e); see also, Fed. R. Civ. P. 56(e). It is true, of course, that these
rules explicitly require that such affidavits be made by a declarant
with personal knowledge. It is far from clear, however, that the evi-
dentiary standard applicable at the summary judgment level in civil
proceedings is the standard to be applied to a motion to dismiss in a
habeas corpus proceeding, or to an assessment of whether a habeas
petitioner is entitled to an evidentiary hearing. Cf. Robinson, 438 F.3d
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at 367 ("[W]hether inadmissible evidence can be used at an evidenti-
ary hearing is a different question from whether inadmissible evi-
dence can support a claim for entitlement to an evidentiary hearing.").
I therefore fail to see how the explicit language used in the summary
judgment rules — tellingly absent from the Statute here — supports
the State’s position on the procedural bar issue.
Moreover, as we recognized in Conaway, "it would create a ‘clas-
sic catch-22 if an MAR defendant were obliged to submit admissible
evidence to the MAR court in order to be accorded an evidentiary
hearing, when the defendant is seeking the hearing because he cannot,
without subpoena power or mechanisms of discovery, otherwise
secure such evidence." 453 F.3d at 584. There is no apparent reason
for us to stray from our recognition in Conaway that, in the absence
of North Carolina law to the contrary, an MAR supported by affida-
vits that may arguably contain evidence deemed inadmissible does
not fail on procedural grounds. See id. at 583-84.6
C.
Of course, as Judge Shedd notes, our Court has previously con-
cluded that the Statute, to the extent it requires the filing of supporting
6In my view, contrary to that of Judge Shedd, our opinion in Barnes
v. Thompson does not preclude us from reaching the merits of McNeill’s
juror misconduct claims. See 58 F.3d 971 (4th Cir. 1995). In Barnes, we
observed that a federal habeas court "does not have license to question
a state court’s finding of procedural default, if based upon an adequate
and independent state ground." Id. at 974 n.2. This simple observation
does not undermine the principle that, if we are uncertain of the scope
of a state procedural rule, and unsure if it could be considered an "ade-
quate and independent" ground, assessing the merits of a prisoner’s claim
is appropriate. See Burket, 208 F.3d at 184. In other words, we need not
blindly accept the MAR court’s decision that McNeill failed to comply
with the state procedural rule at issue, but instead must determine
whether the procedural bar was an adequate and independent one. See
id.; see also Bacon v. Lee, 225 F.3d 470, 477 (4th Cir. 2000) ("[W]e
must . . . assure ourselves that the rule applied is a firmly established and
regularly followed state practice." (internal quotation marks omitted));
Royal v. Taylor, 188 F.3d 239, 248 (4th Cir. 1999) (reviewing merits of
habeas corpus claims where scope of procedural bar was unclear).
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affidavits with an MAR, constitutes an adequate and independent
state procedural bar. See Richmond v. Polk, 375 F.3d 309, 323-24 (4th
Cir. 2004). Our previous determination that this aspect of the Statute
is an adequate and independent state procedural rule does not, how-
ever, end our inquiry. See Reid, 349 F.3d at 805 ("[T]he fact that a
state procedural rule is adequate in general does not answer the ques-
tion of whether the rule is adequate as applied in a particular case.").
Importantly, our decision in Richmond was limited to deciding that
the Statute was unambiguous in requiring that supporting affidavits be
submitted with an MAR. See 375 F.3d at 323-24. The relevant facts
here are readily distinguishable from those underlying our decision in
Richmond. There, the petitioner presented no affidavits whatsoever
supporting two of his ineffective assistance claims, and he submitted
only a single affidavit with his third ineffective assistance claim,
which failed to support that claim. Id. at 322. By contrast, McNeill
complied with the statutory mandate, presenting and filing affidavits
in support of both of his juror misconduct claims. The MAR court’s
denial of McNeill’s claims on the ground that the affidavits contained
evidence that it deemed inadmissible is a materially different ruling
than the Richmond MAR court’s denial of relief on the ground that
no supporting affidavits had been submitted. Richmond thus does not
require us to accept the State’s contention that the Statute places a
heightened evidentiary burden on a habeas corpus petitioner, or that
the Statute has been uniformly applied in such a manner.
In my view, the State has failed to establish that the submission of
admissible evidence in support of an MAR is required by the Statute,
or that this asserted procedural rule constitutes a "firmly established
and regularly followed state practice." Bacon v. Lee, 225 F.3d 470,
477 (4th Cir. 2000) (internal quotation marks omitted). Absent the
establishment of such a state procedural rule, McNeill’s juror miscon-
duct claims are not procedurally barred, and we are obligated to
address their merits.
II.
Upon assessing the substance of McNeill’s juror misconduct claims
as to Jurors Lee and Sermarini, I am satisfied that the MAR court’s
denial of these claims on their merits was not an unreasonable appli-
cation of clearly established federal law as determined by the
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Supreme Court. See 28 U.S.C. § 2254(d)(1). First, McNeill is unable
to establish that Juror Lee failed to honestly answer a material ques-
tion, or that, even if the facts of his half-sister’s murder had been dis-
closed, Lee would have been subject to challenge for cause. Second,
McNeill is unable to show any prejudice resulting from Juror Ser-
marini’s use of the dictionary definition of "mitigate." I will explain
my position on the juror misconduct claims in further detail.
A.
McNeill contends that Juror Lee’s failure to disclose during voir
dire that his half-sister had been murdered by her boyfriend forty-
seven years earlier, when Lee was nine years old, unconstitutionally
infected McNeill’s trial jury, entitling him to federal habeas corpus
relief. To be sure, the Supreme Court has long recognized that the
Sixth Amendment precludes a biased juror from serving on a criminal
jury. United States v. Wood, 299 U.S. 123, 133 (1936).7 In order to
secure habeas corpus relief on this claim, however, McNeill is obliged
to show that Juror Lee "failed to answer honestly a material question
on voir dire, and then further show that a correct response would have
provided a valid basis for a challenge for cause." McDonough Power
Equip. v. Greenwood, 464 U.S. 548, 556 (1984).8 McNeill’s claim on
Juror Lee fails to satisfy the McDonough test, however, because he
has not made the essential showings; that is, he cannot establish that
Lee failed to honestly answer a material voir dire question, and he is
unable to show that a complete response by Lee would have provided
a valid basis for a challenge for cause.
7The Sixth Amendment provides that "[i]n all criminal prosecutions,
the accused shall enjoy the right to a . . . trial[ ] by an impartial jury."
U.S. Const. amend. VI.
8A petitioner who can satisfy the first two prongs of the McDonough
test is then also obliged to establish that "the juror’s ‘motives for con-
cealing information’ or the ‘reasons that affect [the] juror’s impartiality
can truly be said to affect the fairness of [the] trial.’" Conaway v. Polk,
453 F.3d 567, 588 (4th Cir. 2006) (quoting McDonough, 464 U.S. at
556)). Because McNeill fails to satisfy the first two prongs of McDo-
nough, I need not reach the third prong.
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1.
First of all, McNeill is unable to make the essential showing that
Juror Lee failed to honestly answer a material voir dire inquiry. The
law student affidavits and Juror Lee’s own affidavit do not establish
that Lee failed to honestly answer a material voir dire question.
Rather, they show only that Juror Lee inadvertently failed to provide
any answer to an inquiry on whether a family member or close friend
had been a crime victim. And Juror Lee’s failure to answer this ques-
tion does not give rise to a presumption or inference that he responded
dishonestly. As we have recognized, "McDonough provides for relief
only where a juror gives a dishonest response to a question actually
posed, not where a juror innocently fails to disclose information that
might have been elicited by questions counsel did not ask." Billings
v. Polk, 441 F.3d 238, 245 (4th Cir. 2006) (citing McDonough, 464
U.S. at 555). Importantly, a cursory review of the juror questionnaire
reveals Lee’s failure to check either "yes" or "no" on the pertinent
question, and McNeill’s defense lawyers were entitled to voir dire
Juror Lee about his omission.9 As we have explained, "the right to
challenge a juror is waived by failure to object at the time the jury is
empaneled if the basis for the objection might have been discovered
during voir dire." Richmond v. Madison Mgmt. Group, Inc. 918 F.2d
438, 459 (4th Cir. 1990) (internal quotation marks omitted). The
record establishes that Juror Lee gave no "dishonest response" on voir
dire and, at most, "innocently fail[ed] to disclose information" that the
lawyers could readily have elicited on voir dire. McNeill is therefore
unable to satisfy the first prong of McDonough.
2.
McNeill’s claim on Juror Lee also fails on McDonough’s second
prong, in that he has failed to establish that an honest answer by Juror
Lee would have provided him with a valid basis to challenge Lee for
cause. Indeed, the fact that a juror or his close relative has been a
crime victim is "only minimally relevant to the question of that juror’s
impartiality." United States v. Jones, 608 F.2d 1004, 1007 (4th Cir.
9I do not criticize McNeill’s defense lawyers for their actions in regard
to Juror Lee. They may have possessed sound reasons for not making a
follow-up inquiry on Juror Lee’s questionnaire responses.
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1979). Although exclusion for cause "is more compelling when a
juror is closely associated with a victim of the same type of offense
as that being tried," there is no per se rule of disqualification when
a potential juror is merely related to a victim of a similar crime. Id.
at 1008. Thus, the fact that Juror Lee’s half-sister had been murdered
by her boyfriend when Lee was nine years old, forty-seven years
before McNeill’s trial, does not, in and of itself, establish that Lee
was a biased potential juror at McNeill’s trial. Importantly, the rela-
tionship between Juror Lee and his half-sister was, according to Lee’s
affidavit, a substantially attenuated one: Lee’s half-sister had a differ-
ent mother; she was seldom around when he was a child; and her
death had little effect on him. Juror Lee also maintains that he knew
very little about his half-sister’s death and that it had no influence on
his service as a juror in McNeill’s trial. In these circumstances, the
murder of Juror Lee’s half-sister nearly a half century earlier, even if
it had been disclosed on voir dire, would not have provided McNeill
with a valid basis to challenge Lee for cause.
McNeill is thus unable to establish either of the first two prongs of
McDonough. It was therefore not unreasonable for the MAR court to
conclude that the facts shown by affidavit are legally insufficient,
under McDonough principles, to show that McNeill’s Sixth Amend-
ment right to an impartial jury has been infringed. Thus, McNeill’s
juror misconduct claim as to Juror Lee fails on its merits.
B.
McNeill’s second juror misconduct claim is that Juror Sermarini
intentionally consulted a dictionary at his home during an overnight
recess in the sentencing deliberations, seeking to ascertain the mean-
ing of the term "mitigate," to assist his decision as a juror and to influ-
ence other jurors. Generally, of course, once a verdict has been
rendered, jurors are not entitled to impeach it. See Tanner v. United
States, 483 U.S. 107, 117 (1987). This general prohibition is limited
by the Sixth Amendment, however, which guarantees an accused the
right to confront the witnesses against him. Robinson v. Polk, 438
F.3d 350, 359 (4th Cir. 2006). Pursuant to Tanner, the Sixth Amend-
ment does not mandate judicial consideration of juror misconduct
allegations regarding influences internal to the deliberations process.
See Robinson, 438 F.3d at 363. On the other hand, "[u]nder clearly
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established Supreme Court case law, an influence is not an internal
one if it . . . is extraneous prejudicial information; i.e., information
that was not admitted into evidence but nevertheless bears on a fact
at issue in the case . . . ." Id.
Juror Sermarini’s use of his home dictionary, in this setting, consti-
tuted an external, rather than an internal, influence. See United States
v. Duncan, 598 F.2d 839, 866 (4th Cir. 1979). As we recognized in
Duncan, however, a juror’s reference to a dictionary will constitute
juror misconduct, but it is not deemed prejudicial per se. See id. Other
courts have agreed that a juror’s use of a dictionary is not an event
that is inherently prejudicial. See, e.g., United States v. Henley, 238
F.3d 1111, 1115-16 (9th Cir. 2001) (observing that certain juror mis-
conduct, including use of dictionary definition, constitutes "more
common and less pernicious extraneous influence on jury delibera-
tions" than other more serious misconduct, such as attempted brib-
ery). And it is generally accepted that, although a juror can testify that
she consulted an extraneous influence and related her findings to the
panel, neither she nor any other juror can testify about any effect the
extraneous influence may have had on the verdict or on the jury delib-
erations. See Fed. R. Evid. 606(b); Mayhue v. St. Francis Hosp., Inc.,
969 F.2d 919, 921 (10th Cir. 1992). Thus, McNeill is obliged to
establish that he was actually prejudiced, and he must do so without
resort to an inquiry into the effect, if any, that Juror Sermarini’s dic-
tionary definition may have had on the jury’s deliberations.
Importantly, there is no Supreme Court authority clearly articulat-
ing the specific circumstances under which an extraneous influence
might prejudice a juror, and "each case must turn on its special facts."
See Marshall v. United States, 260 U.S. 310, 312 (1959). In this
regard, certain of our sister circuits have sought to articulate relevant
factors for an assessment of when a jury’s use of a dictionary might
be prejudicial. For example, the Tenth Circuit has determined that, in
considering the possible prejudicial impact of a juror’s reference to a
dictionary, a reviewing court should weigh the following:
(1) The importance of the word or phrase being defined to
the resolution of the case. (2) The extent to which the dictio-
nary definition differed from the jury instructions or from
the proper legal definition. (3) The extent to which the jury
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discussed and emphasized the definition. (4) The strength of
the evidence and whether the jury had difficulty reaching a
verdict prior to introduction of the dictionary definition. (5)
Any other factors that relate to a determination of prejudice.
Mayhue, 969 F.2d at 924.
In these circumstances, McNeill is unable to show that he was prej-
udiced by Juror Sermarini’s misconduct. The term "mitigate" was
important to the resolution of McNeill’s sentencing trial, of course,
because it was relevant to the question of whether he should receive
the death penalty. And the jury discussed the definition at some
length, according to Juror Sermarini’s written and signed statement.
His dictionary definition of "mitigate," however, did not materially
differ from the court’s instruction on the point. The definition of "mit-
igate" that Juror Sermarini obtained and shared with his fellow jurors
was, according to a law student’s affidavit, "to cause to become less
harsh or hostile." J.A. 1085-86. The jury had already been instructed
by the trial court that
[a] mitigating circumstance is a fact or group of facts which
do not constitute a justification or excuse for a killing or
reduce it to a lesser degree of crime than first degree mur-
der, but which may be considered as extenuating or reducing
the moral culpability of the killing or making it less deserv-
ing of extreme punishment than other first degree murders.
J.A. 900. A comparison of these two definitions makes it readily
apparent that nothing in the dictionary definition proffered by Juror
Sermarini is incompatible with the court’s instruction on mitigation.
And, the jury in fact found eight mitigating factors in favor of
McNeill (of the twenty-one presented for its consideration), suggest-
ing that it grasped the meaning of "mitigate" provided by the court,
and that its understanding of mitigation was not undermined by any
external influence. Because McNeill is unable to establish any preju-
dice from Juror Sermarini’s improper conduct, we are unable to say
that the MAR court’s decision on the merits of this claim "was con-
trary to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court." U.S.C.
§ 2254(d)(1).
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III.
Pursuant to the foregoing, I would rule that McNeill’s juror mis-
conduct claims are not procedurally barred, and I disagree with Judge
Shedd on this point. That being said, I would deny both juror miscon-
duct claims on their merits. I thus join in the judgment denying relief
on the juror misconduct claims and in Judge Shedd’s resolution of
McNeill’s ineffective assistance claims, as spelled out in Part III.B of
his opinion.
GREGORY, Circuit Judge, dissenting in part and concurring in part:
Although I concur with the Court’s denial of relief on three of
McNeill’s claims, I respectfully dissent from the judgment denying an
evidentiary hearing for one of McNeill’s juror misconduct claims.1 In
my opinion, McNeill has made a viable claim that his right to a fair
trial may have been impaired by the introduction of an improper
external influence into jury deliberations. We should grant McNeill an
evidentiary hearing so that the district court may consider the extent
of the prejudice caused by Juror Sermarini’s introducing into deliber-
ations a dictionary definition that undermined the legal concept of
mitigation.
I.
Late on November 17, 1992, John Davis McNeill knocked on the
door of a Fayetteville, North Carolina, apartment. Melissa Jones, the
neighbor of McNeill’s on-and-off-again girlfriend, Donna Lipscomb,
answered. McNeill asked Jones for the spare key to Lipscomb’s apart-
ment. Jones, knowing that McNeill and Lipscomb were dating and
1McNeill received certificates of appealability for two ineffective
assistance of counsel claims and two juror misconduct claims. One inef-
fective assistance claim concerned counsel’s concession of guilt to
lesser-included offenses; the other concerned counsel’s mitigation case.
I agree with the Court’s rejection of both claims. One juror misconduct
claim concerned Juror Lee’s failure to reveal that his half-sister had been
murdered by a jealous lover; the other concerned Juror Sermarini’s use
of a dictionary to define mitigate for the other jurors. I disagree with
Judges Shedd and King on the latter claim.
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having seen McNeill in the apartment several times, retrieved the key
for him. After she had given him the key, Jones noticed that he had
a knife. She retreated into her apartment to call the police, but her
phone was not working.
McNeill then went to Lipscomb’s apartment, unlocked the door,
and pushed it open, despite Lipscomb’s efforts to keep it closed. Her
two sons, Nate, 13, and John, 11, saw that McNeill had a knife. While
McNeill and Lipscomb argued, Nate attempted to call the police, but
the Lipscomb phone also was not working. The argument escalated,
and McNeill stabbed Lipscomb in the chest, back, arms, abdomen,
and breast, producing twelve wounds. Nate managed to stop McNeill.
McNeill then ran outside to call the police.
When the police arrived, they found McNeill covered in blood and
apparently intoxicated. He directed them to Lipscomb’s apartment
and admitted that he had stabbed her. He told police that he "didn’t
mean to do it," but she had been "dissing him."
At trial, McNeill testified that he had gone to Lipscomb’s apart-
ment to try to resolve some issues in their relationship. He explained
that he had taken the knife with him because he expected to find a
man in the apartment, and he wanted to be prepared to scare him
away. He admitted to pulling the telephone wires out of the junction
box behind the apartments because he needed to make sure that noth-
ing interrupted their conversation. McNeill reiterated in his testimony
that he never intended to kill Lipscomb.
II.
The fact that the jury may have substituted a dictionary definition
of mitigate for the legally understood meaning of the term compels
me to disagree with Judges Shedd and King in their dismissal of
McNeill’s second juror misconduct claim. Because it is of the utmost
importance in a death case that a jury understand the legal definition
of mitigate, I would grant an evidentiary hearing so that McNeill
could explore the prejudice caused by Juror Sermarini’s introduction
of a dictionary definition of mitigate during deliberations.2
2Because Judge King has so thoroughly and expertly discussed the rea-
sons that the procedural bar should not apply to this claim, I will only
consider the claim on its merits in this dissent.
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A.
The consideration of mitigation evidence in a capital sentencing is
unique in criminal procedure. In Lockett v. Ohio, 438 U.S. 586
(1978), the Supreme Court emphasized that the importance of mitiga-
tion in a capital sentencing proceeding arises from the vastly different
and permanent nature of a death sentence and the need to consider
each capital defendant in a particularly individualized way: "The need
for treating each defendant in a capital case with that degree of
respect due the uniqueness of the individual is far more important
than in noncapital cases." 438 U.S. at 605. The Court held that a jury
should be able to consider all evidence that would allow a single juror
to find any reason to spare the defendant’s life: "The Eighth and Four-
teenth Amendments require that the sentencer . . . not be precluded
from considering, as a mitigating factor, any aspect of a defendant’s
character that the defendant proffers as a basis for a sentence less than
death." Id. (emphasis in original).
B.
Judge King has effectively spelled out the reasons why Juror Ser-
marini’s consultation of a dictionary constituted the introduction of an
improper external influence and resulted in juror misconduct, but his
unwillingness to see the prejudice resulting from this act compels me
to disagree with his concurrence. We stated in United States v. Dun-
can, 598 F.2d 839, 866 (4th Cir. 1979), that a juror’s consultation of
a dictionary constitutes juror misconduct. When that consultation
involves the legally defined concept that is the crux of the sentencing
process, we should investigate its potential for prejudice as thor-
oughly as possible.
Because of the importance of the concept of mitigation in the capi-
tal sentencing context, we cannot pass lightly over the jury’s miscon-
duct in this case. A capital jury is required to consider mitigation
evidence not only as it affects their evaluation of the crime of which
they have found the defendant guilty, but also as it affects the defen-
dant himself. Lockett instructs us that the jury must consider each
defendant as an individual. 438 U.S. at 605. Because a jury must
decide whether to sentence that individual defendant to death, we
require counsel to present mitigation evidence independent of the
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crime, and we hold counsel ineffective who fail to investigate and
present this type of evidence. See Rompilla v. Beard, 545 U.S. 374,
385 (2005); Wiggins v. Smith, 539 U.S. 510, 524 (2003); Williams v.
Taylor, 529 U.S. 362 (2000). Juror Sermarini’s introduction of a non-
legal definition of mitigate likely prevented the jury from properly
weighing mitigating factors that reached beyond the crime and likely
prevented McNeill from having a fair sentencing.
C.
Judge King looks to the Tenth Circuit for guidance on how we
should approach the potential prejudice caused by Juror Sermarini’s
substitution of a dictionary definition of mitigate for the legal defini-
tion provided by the court. As Judge King noted, a reviewing court
should consider:
(1) The importance of the word or phrase being defined to
the resolution of the case. (2) The extent to which the dictio-
nary definition differed from the jury instructions or from
the proper legal definition. (3) The extent to which the jury
discussed and emphasized the definition. (4) The strength of
the evidence and whether the jury had difficulty reaching a
verdict prior to introduction of the dictionary definition. (5)
Any other factors that relate to a determination of prejudice.
Mayhue v. St. Francis Hosp., Inc., 969 F.2d 919, 924 (10th Cir.
1992).
All of these factors illustrate the reasons why we should grant
McNeill an evidentiary hearing so that he can further develop his
juror misconduct claim. Factor one leans most heavily in McNeill’s
favor because mitigate, as discussed above, may be the most impor-
tant word in the jury’s determination of whether to sentence a defen-
dant to death. Factors three and four would best be explored in an
evidentiary hearing to discover precisely what happened when Juror
Sermarini introduced the dictionary definition.
Judge King would rule that the jury’s misconduct did not prejudice
McNeill because, under factor two, the dictionary definition of miti-
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gate did not differ substantially from the definition the judge provided
to the jury. The definition of mitigate that Juror Sermarini introduced
was, "to cause to become less harsh or hostile." J.A. 1085-86. Judge
King compares that definition with one of the mitigation instructions
given to the jury:
A mitigating circumstance is a fact or group of facts which
do not constitute a justification or excuse for a killing or
reduce it to a lesser degree of crime than first degree mur-
der, but which may be considered as extenuating or reducing
the moral culpability of the killing or making it less deserv-
ing of extreme punishment than other first degree murders.
J.A. 900. Judge King states that "nothing in the dictionary definition
proffered by Juror Sermarini is incompatible with the court’s instruc-
tion on mitigation" and concludes, therefore, that McNeill has not
shown prejudice resulting from Sermarini’s misconduct.
Admittedly, the dictionary definition and the jury instruction are
similar, but Judge King neglects to consider the remaining jury
instructions that should have indicated to the jury that they were to
consider mitigation not only in the context of the crime but also in
regards to McNeill himself. After giving the above-cited definition of
mitigation, the trial court went on to detail twenty-one specific miti-
gating factors, sixteen of which did not relate directly to the commis-
sion or circumstances of the crime. That the jury found eight of these
mitigating factors but determined that they did not outweigh the one
aggravating factor that McNeill committed the murder while engaged
in the commission of a burglary suggests that the jurors indeed
focused on mitigation of the crime itself and not on mitigation as
defined by law in the context of a capital sentencing hearing.
A jury that understood mitigation as only causing "to make less
harsh or hostile" might improperly focus only on the harshness or
hostility of the crime itself. This singular focus would undermine the
jury’s duty to consider the characteristics of the defendant that might
make him less worthy of a death sentence. For this reason, I would
grant McNeill an evidentiary hearing to explore the prejudice caused
by this juror’s misconduct.
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D.
Judge King argues that McNeill should not be entitled to an evi-
dentiary hearing on this claim because courts are generally barred
from peering into the minds of jurors with respect to their deliberative
processes. He cites Federal Rule of Evidence 606(b) in support of the
proposition that no juror "can testify about any effect the extraneous
influence may have had on the verdict or the jury deliberations." He
states that McNeill must prove prejudice resulting from juror miscon-
duct "without result to an inquiry into the effect [external influence]
may have had on the jury’s deliberations."
Judge King’s interpretation of this rule effectively hamstrings any
defendant who could make a viable claim of juror misconduct, no
matter how egregious, but who cannot prove prejudice resulting from
that misconduct without the evidence that he might develop in a hear-
ing. If we were to grant McNeill an evidentiary hearing on this claim,
we would not be requiring jurors to reveal the secrets of their deliber-
ative processes. Instead, McNeill could develop evidence, beyond the
two student affidavits and Sermarini’s own attested statement, that
Juror Sermarini did bring in a dictionary definition of mitigate, that
other jurors consulted or discussed that definition, and that the jury
concluded its deliberations shortly after the introduction of the non-
legal definition. McNeill could thus prove prejudice without violating
the federal rule and the principle that a juror’s deliberative process is
inviolable. I believe that we should give him the opportunity.
III.
For the foregoing reasons, I respectfully dissent from the judgment
denying McNeill an evidentiary hearing. Because of the importance
of mitigation in the capital sentencing context, I would grant McNeill
an evidentiary hearing so that he may develop evidence of juror mis-
conduct and the prejudice caused by that misconduct.
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