Legal Case Summary

Mr. Hale, whenever you're ready. My name is Robert Hale. I'm from Raleigh, North Carolina. Robert Hale and Sreshitz. As you do with me is Daniel Blow. It's Sreshitz with my firm. Thank you for allowing us the opportunity to argue today. May I please the court? In 1892, the United States Supreme Court held in Maddox versus the United States that private communications possibly prejudicial between jurors and third parties and validates the verdict unless their farmlessness be made to appear. In 1954, the Supreme Court reiterated that basic principle in Rimmer versus the United States and held any private communication, contact or tampering between a non-Jurror and non-Jurror about the matter pending before the jury is to be deemed presumptively prejudicial. And again, in 1982 in Smith versus Phillips, the court held that the remedy for a claim of implied juror bias is a hearing where the defendant would have an opportunity to prove the existence of actual bias. In this case, the state court unreasonably applied this clearly established federal law in three ways. First, it failed to grant a hearing for the defendant to allow him the opportunity to prove actual bias. Second, it failed to presume that the conduct between juror Foster and her father was presumptively prejudicial. In third, it applied an improper standard in factually in denying a Rimmer analysis because it required or it looked only to evidence of tampering. And in fact, what it could have looked to was evidence that any contact communication or tampering about the matter pending before the jury. A hearing was the state court's order indicates that this claim was denied as a matter of law based upon cases from this court regarding Bible reading. Robinson V. Polk, Lens V. Washington, Billings V. Polk, and Lynch V. Polk. All of these cases involved a juror's consultation of the Bible or recitation of Bible verses to other jurors. None of them involved the jurors' contact with a third party during which the juror discussed the case, or discussed the sinnancing decision. And I have to go on hypothetical to see how you react to it. If a juror goes home and says to her father, I'm sitting on a capital case we have to decide whether there's life and death. Is there any moral support in the Bible to allow a verdict of death? And the father says, yes, the Bible has the eye for an eye. And she says, thank you, reads it, and that's it. She's looking for the ability morally to make a judgment. Is that a violation of renter? That's all she tells the father. I'm sitting on a case in which I have to decide life and death. And I need to know whether there's moral support for the death penalty in the Bible. Well, if all that they discuss is that there is... That's what I said

. Nothing more. I believe it could still be a violation of a rumor. But we don't know that that's what happened in this case. I look. But if that's... If that's hypothetical, I need to know what your position is on that. If all she said was... All he said was there is moral support in the Bible for the imposition of death. It still would be an improper contact. And it would need to be resolved that adhering. I discussed the evidence in the case and discussed the defendant. I didn't discuss any. Basically, she's saying, I have a life or death decision to make. And can I make that consistent with the Bible? Yes. And he says, yes, there's an eye for an eye, phrase in the Bible. Several places. And gives her one. And she says, okay, thank you. Now, that's the hypothetical I'm giving you. Yes, sir. And you say that violates renter? Well, I say that, if I get in with, it's a private, extrajudicial communication. You answer yes or no and then proceed with your explanation. If the conversation was simply legal... Maybe the hypothetical. There's nothing more in it. I would not answer it, don't answer it. But I respectfully suggest to you that seeking moral support for a position maybe should have called out when they did voidier. Could you, Madame Jurre, impose the death penalty if the evidence supported it? But it seems to me that she wasn't at that point. She basically was seeking, in my hypothetical, seeking moral support

. And then the question, I follow up question, obviously, would be how is that different from here? Well, if your honor, I believe that the inquiry must first proceed from what the conversation was. And if the hypothetical, you've never answered it, it would help our discussion. But my hypothetical is she comes home and says, I have to make a, as a juror, I have to make a life or death decision. Is there moral support in the Bible for me to give a death penalty? If I would, that's where I'll... Well, but she's inviting there is his view of the Bible. I just ask you, is that a violation of the law? I guess it just calls for you to say yes or no if you can and then explain your response. I would still submit that it is a violation of remor because yes, because it is a private contact with another party about the matter pending before the jury. Whether it's prejudicial, maybe a different story, and this court... All right, let me change the hypothetical. She comes home and she says, Dad, I have a very difficult decision to make involving life, death, liberty of a defendant. Will you help me to pray to reach the right decision? Is that a violation? And he helps her to pray to reach the right decision. Yes, and in propaganda? It's still in proper conduct because if she's speaking about... If she's speaking to... And what's your base to support that? It's certainly conduct that warrants an inquiry into find out what their prayer was about. I'm asking you. I'm asking you as a matter of legal constitutional law, is that a violation of the Constitution based on what I just told you? And you're saying it is, and now I need to have from you what case are you relying on to support that? I would rely back on remorchards, and I think that... Okay, perfect. I understand where you are. And that because what is required is then an inquiry into harmlessness. And if there... Well, if it's error, if it's improper. Well, if any private contact or communication with a.

.. Another person who is outside of the jury is held to be deemed presumptively prejudicial, then the presumption should apply under this clearly- So it goes to church, and she tells her priest, I have to make a very difficult decision tomorrow. I have to make a life or death decision. Will you help me to pray? And the priest, and she pray together and says, Dear Lord, give me the guidance to make the right decision. Improper? If she prays to herself, no. I said no, if my hypothetical, I don't want to get new, she's with the priest, and the priest guides her in the prayer. Well, to the extent, if the priest guides her in such a way as to direct her to a specific biblical past... You can answer my questions, Kenya. I asked a question that asked, does that violate the law, my hypothetical? Not if, I don't want you to change the facts. Well, I'm trying to answer your question, Your Honor, and the... What I believe... I told you... She goes to the priest and says, tomorrow morning, I have to make a difficult decision about the life, death, or liberty of a defendant. And would you help me to pray to make the right decision? He says, yes, I will, and he then posits the prayer, and she says, Amen. And the prayer is, dear Lord, give this woman guidance to seek the right result. No, sir, I don't think that is a violation. Okay, fair enough. Thank you. But I think when the evidence is different than that, and the evidence that she goes and speaks with her father, and they have a conversation about an eye for an eye in response to her request for, where she should go for guidance, and he directs her to one specific passage that says one specific thing, rather than saying, honey, just go pray, on your Bible, that's a completely different situation. And that's one... Your Honor, I agree it's different, but I'm not sure that the father in the daughter, and my hypothetical, is talking about the case anymore than the daughter in the priest is. Well, to the extent that it, whether or not it's about the specific case, is... I mean, it is certainly important that it's about her sinencing decision

. But if the... If, like, as in this case, in our evidence, is that the daughter asked her father where she should look for guidance, then they had this conversation about an eye for an eye before he even knew what the passage was, or exactly where it was. This is a conversation about if someone kills someone, then someone should... What's the... What's the lynch pen of your argument here? It's because a Bible verse was discussed. It was because it was a conversation with somebody outside the jury, or a conversation with her father outside the jury, which is the lynch pen. It's because it was a conversation with a third party who was not a member of the jury. Is the status of... Is the status that it's her father? Is that important at all or... Yes, this, Your Honor, it's very important, because this is somebody who she... Well, I'm not trying to get you to answer. What's the lynch pen? If this had not been her father, would you still make the same argument? Yes, but I think it would turn on... No, no, I just said, would you make the same argument? If she went to a neutral person and found a Bible verse, that would still... You'd think that would still be improper. I think it would be improper, I do. When I say improper, I'm talking about unconstitutional, you understand. You think it would be unconstitutional. Do you think if they'd been a neutral conversation that had not included any reference to a Bible verse, would you.

.. Would you... Would you still make the argument? If it was a conversation about her sentencing decision, yes. So you think it... So your lynch pen is... I'm not trying to put words in your mouth, I'm trying to understand it. Is that a juror had a conversation with somebody outside the jury that in some way can be seen as... Relating to the case... Case, that's what you think. It was a conversation. It was a conversation. But was that the lynch pen, the argument? The lynch pen is that there was a violation of remor because it was a private contact and communication about her sentencing decision with somebody who was not a member of the jury. And in that conversation, an opinion from her father was given to her when he directed her to one specific passage and not the Bible juror. Does it say that he's her father carrying any weight in your analysis? It does... Absolutely, it does. Particularly so. In terms of prejudice because this was somebody who she obviously respected, she described as a great parent during the Bible. Did he know the Bible verse or did he have to go and find the Bible verse? He did not know the... He knew about the eye for an eye concept and that's what they discussed. But he did not have the verse and so he contacted his mother. His mother then gave him a specific reference which then he

... This has been the girl's grandmother. That would be the... Not exactly sure if she was a grandmother but it was his mother then he provided that reference and another private conversation to his daughter which she then read. Why isn't that like a search engine, like a Google search? Well, what did the father step in the shoes of a Google search engine? Well, because first of all the father is looking through his lens of the Bible. If you do a Google search... You do a Google search, you're going to find somebody's view of what the Bible says. Well, you're also going to find a whole lot of other views. You're not going to find... You don't have to look at them though. You can just put the first one and look at that one. I'm just asking why isn't he analogous to a search engine? Well, a search engine would come up with a lot of different results. He came up with one and in his mind as he discussed with her... If he used a search engine, what if he used a search engine and you went with the first response that came up? That's all that you read. Would that be a violation, brother? Well, it's not a private contact with a third person about the subject matter of litigation. And anyway, we don't know exactly what was just... I'm not saying but you don't think that would be a constitutional violation. I think that if he said it's just like a search engine, if you type in which I have... I know, I know. We don't know how that works. I'm just asking you don't think that would be a violation. I don't think it would be a violation

. No, if she did a Google search. And I don't think it would be a violation if she picked up the Bible and opened it up and just wherever it landed, she read it. I don't think that would be a problem. But if she went looking for that specific verse in the Bible... I don't think that would be a problem. So the problem is not the Bible verse. The problem is not extraneous information. The problem is limited extraneous information. The problem is conversation with the father that gets this out of the realm of Bible reading or even her own Bible searching. The problem is... The question that the father was reflecting on the case or the evidence, she didn't tell him anything about it. There's no evidence that she did. So she's had to tell him I have to make a life or death decision. Is there any support for death decision in the Bible? And he says, I for an eye. Well, she... That's not exactly what she asked him. She asked him where she should look for guidance. Where she should... Where she could look for guidance and he directed her to one specific passage. He didn't say... She didn't say, please tell me all of the places in the Bible. She said, where do you think I should look that? Where do you think I should turn for helping guidance? And she shouldn't have done it. And what she did was invited him to look through his view of the Bible and then transmit that..

. Is it clear that it was one specific passage or one specific concept from the Bible? It's clear that there was a concept discussed and then a passage later provided that she read. But this is not a Bible reading case. It's an improper contact with father case. It's a standard... Is the standard weather or not? We think it's a violation or is it standard whether or not... Isn't the standard whether we think the state was unreasonable and saying that it was not a violation? It is... It is the letter. It is whether or not the state court reasonably could have determined that it was not a violation. It's stronger than that. We have to find that it was unreasonable, right? Right. It was unreasonable. We have to defer to the state in a very strong difference because Congress does not want us second guessing the states unless it's clearly unconstitutional under Supreme Court law. That is correct. Thank you. This is here from Ms. Hollis. Good morning, Your Honours. Judge Meemar, I think you hit the nail on the head here with the standard. It's whether you guys think it... The court thinks it's unreasonable. An unreasonable application of clearly established law and giving the hypotheticals to Mr. Hale. So he cited absolutely no case law, not from the U.S. Supreme Court or even for that matter, for this court, to support his position that this was an unreasonable application here. And I think that what he is.

.. What the petitioner has done is asking the court to forego the habeas standards and to read the Supreme Court cases, particularly Rimmer, at a high level of generality. And in fact, I think if you listen to him, he's asking you to read out the qualification that it be about the matter pending before the jury. And with regards to the habeas standards, Judge Meemar, this is not a violation of the Constitution, what happened here. But you said you're not sure whether it was a violation. Well, that's the habeas standard, where no... You have to have no possibility that Fair Minus Juris disagree that the State Court decision conflicts with the U.S. Supreme Court case law. And we simply don't have that here. And we know from the U.S. Supreme Court case law, the case law of this court, that what is clearly established is an extremely strict requirement. It's the holdings of the U.S. Supreme Court cases. And Rimmer is not the clearly established law here. Rimmer dealt with a bribe of a juror during trial that was investigated by the FBI. And with that, the necessary implication for that is that the State Court did not unreasonably apply clearly established law. Well, let me ask you this. The incident that we're talking about, was this... did this occur during a criminal case? Yes, sir. And was it a private communication? Yes, sir. It was not in front of the jury. And was it with a juror during a trial? Yes, sir. It was a subject matter of it, the matter pending before the jury. No, sir. It was not. Whether or not to give the death penalty was not a matter pending before the jury. This, as was discussed, was Mr. Hill this involved the jurors in examining her internal conscious asking

... What was my question was, did the subject matter of the conversation involve the death penalty? Well, not that was a matter pending before the jury. Your Honor, I...no, it did not. It did? It's a very... What were they talking about? They were talking about the jurors' internal conscious. She did not ask her father. I think the district court did a really good job here examining this case. She did not ask her father what punishment to him for... I didn't ask if she asked for her opinion. I asked if the subject matter of the communication was a matter pending before the jury. No, Your Honor. It was not about the herst trial specifically. Had nothing to do with the death penalty. It had to...Your Honor, no. It had to do with her internal conscious. She used her father as Judge Shed indicated... And what, the magistrate Judge below said, as a neutral index. Well, I didn't indicate that. I asked a question about that. I'm sorry, Judge Shed, you indicated through your questioning. That she used her father as a neutral index and one who could simply point her in the biblical materials that related to... To what, related to what? Her decision, her internal conscious and how that related to her. To do what? To impose the death penalty. Right, and you don't think that's a matter pending before the jury? Your Honor, the cases do not read that way. You look at the Bible reading cases from this court and they talk about... Durs reading the Bible specific passages, I, for an eye, and it's an examination of their own internal consciousness. But you just deny that the subject matter of the conversation was a matter pending before the jury. Yes, Your Honor, because of those cases, Your Honor. Well, we're on the same case. I mean, is this herst versus Lasseter? Yes, Your Honor. Because in those, I think if you look at those Bible reading cases, what we have here is we have, like you pointed out, we have a contact. But then the subject matter of the contact, regarded dealt with the Bible. And you look at cases from this court determining what the clearly established law is regarding the Bible. And it says the Bible does not bear on the fact of the case. It has no value in weighing the aggravating and mitigating evidence. The facts in this case are actually a little more helpful, and you didn't point them out, or a little more helpful to you, because it looks as if she had already made the decision that the death penalty was the appropriate standard. She said there was just not enough evidence presented in mitigation, and she explained why. So it looked clearly, and then she said this was an emotional case. It looks clearly like she was seeking moral support from the Bible to make a decision to support a decision that she had made. That's correct. And the moral support was to get, find whether the Bible would authorize her to put in the death penalty. And my supposition in reading that, together with what she said she talked to her father was, I mean, you don't need the Bible to say no, death penalty. You need the Bible to say will it entitle me to impose the death penalty if that's my decision. And the father says, I am for an I-2-2. So I don't think you can read anything more based on this record than the fact that she was seeking moral support for a death penalty sentence that she had already decided to do. And she said there just was not enough evidence presented in mitigation. That is correct, Your Honor. And I believe that that is why this case is very closely related to those, to the Bible reading cases from this court. And that is why the state courts reliance on those cases was not, was, or going that way was not, the reason. This is, this seems to me that this is sort of an issue with the case. I must say, if I understand your position. It is, as I understand it, it looks as if she was talking to her father about the case she was sitting on. I don't think there's any evidence in the record that he knew about that case, but you got to wonder, he doored a wasn't disappearing for days on end

.. To what, related to what? Her decision, her internal conscious and how that related to her. To do what? To impose the death penalty. Right, and you don't think that's a matter pending before the jury? Your Honor, the cases do not read that way. You look at the Bible reading cases from this court and they talk about... Durs reading the Bible specific passages, I, for an eye, and it's an examination of their own internal consciousness. But you just deny that the subject matter of the conversation was a matter pending before the jury. Yes, Your Honor, because of those cases, Your Honor. Well, we're on the same case. I mean, is this herst versus Lasseter? Yes, Your Honor. Because in those, I think if you look at those Bible reading cases, what we have here is we have, like you pointed out, we have a contact. But then the subject matter of the contact, regarded dealt with the Bible. And you look at cases from this court determining what the clearly established law is regarding the Bible. And it says the Bible does not bear on the fact of the case. It has no value in weighing the aggravating and mitigating evidence. The facts in this case are actually a little more helpful, and you didn't point them out, or a little more helpful to you, because it looks as if she had already made the decision that the death penalty was the appropriate standard. She said there was just not enough evidence presented in mitigation, and she explained why. So it looked clearly, and then she said this was an emotional case. It looks clearly like she was seeking moral support from the Bible to make a decision to support a decision that she had made. That's correct. And the moral support was to get, find whether the Bible would authorize her to put in the death penalty. And my supposition in reading that, together with what she said she talked to her father was, I mean, you don't need the Bible to say no, death penalty. You need the Bible to say will it entitle me to impose the death penalty if that's my decision. And the father says, I am for an I-2-2. So I don't think you can read anything more based on this record than the fact that she was seeking moral support for a death penalty sentence that she had already decided to do. And she said there just was not enough evidence presented in mitigation. That is correct, Your Honor. And I believe that that is why this case is very closely related to those, to the Bible reading cases from this court. And that is why the state courts reliance on those cases was not, was, or going that way was not, the reason. This is, this seems to me that this is sort of an issue with the case. I must say, if I understand your position. It is, as I understand it, it looks as if she was talking to her father about the case she was sitting on. I don't think there's any evidence in the record that he knew about that case, but you got to wonder, he doored a wasn't disappearing for days on end. I mean, he knew this door was doing something. My guess is, it's not too much of a length to know that for him to know she's involved in that case. I don't think there's anything in the record that indicates that, quite frankly. Is there? There is nothing in the record that indicates that. But then, but then, but it does sort of harken back to sort of like a little crevice in the law as to. It looks like, in a general sense, in a general sense, a response to what Judge Tracks will ask you. It's not any indication. She was just having some philosophical dinner discussion about the Bible with her father. She was driven by what she was doing. Isn't that right? She was driven about the circumstances she was in. You characterize that as having to make a personal decision. Yes, sir. But that personal decision was driven by the fact she was in a criminal case, right? Yes, sir. That's why it does look like that conversation pertained to that case or to the death penalty or whatever. But so was that not so? Well, I think you can look at those Bible reading cases and. I was going to suggest your answer is at harkens to those cases where you look at the Bible reading case. And they're not reading the Bible for general edification or hope to go to heaven. They're reading the Bible for guidance for them. Yes, sir. To know what they do in a death penalty case. And this court has said that those cases are not for the state court has failed that there's no error there. There's not unreasonable applications of. So, so then does that harken back to the standard of review in your opinion? Absolutely, Your Honor. And you're, it will state what then that would be. You would think it's not unreasonable for the state court to have done what? To find there was no error. Based on what analysis? Based upon the analysis that what we have here is an innocuous contact between the father. He was a neutral index. I think the magistrate judge tagged that was right on there. He was a neutral index and you get passed that and you just have somebody consulting an implement of faith to satisfy to comfort their internal conscious. So, you see that as it's not unreasonable before a state court to look at the state of the law and say this is more like the Bible reading cases than it is anything else. And although they could be exactly right or exactly wrong. And I don't think you probably wouldn't say they were wrong. But without making a statement of if they were, had the best interpretation of that law or not, you think it is good. But you think that it's certainly what done reasonable for them to assess it in the way of looking at the Bible cases. Yes, Judge

. I mean, he knew this door was doing something. My guess is, it's not too much of a length to know that for him to know she's involved in that case. I don't think there's anything in the record that indicates that, quite frankly. Is there? There is nothing in the record that indicates that. But then, but then, but it does sort of harken back to sort of like a little crevice in the law as to. It looks like, in a general sense, in a general sense, a response to what Judge Tracks will ask you. It's not any indication. She was just having some philosophical dinner discussion about the Bible with her father. She was driven by what she was doing. Isn't that right? She was driven about the circumstances she was in. You characterize that as having to make a personal decision. Yes, sir. But that personal decision was driven by the fact she was in a criminal case, right? Yes, sir. That's why it does look like that conversation pertained to that case or to the death penalty or whatever. But so was that not so? Well, I think you can look at those Bible reading cases and. I was going to suggest your answer is at harkens to those cases where you look at the Bible reading case. And they're not reading the Bible for general edification or hope to go to heaven. They're reading the Bible for guidance for them. Yes, sir. To know what they do in a death penalty case. And this court has said that those cases are not for the state court has failed that there's no error there. There's not unreasonable applications of. So, so then does that harken back to the standard of review in your opinion? Absolutely, Your Honor. And you're, it will state what then that would be. You would think it's not unreasonable for the state court to have done what? To find there was no error. Based on what analysis? Based upon the analysis that what we have here is an innocuous contact between the father. He was a neutral index. I think the magistrate judge tagged that was right on there. He was a neutral index and you get passed that and you just have somebody consulting an implement of faith to satisfy to comfort their internal conscious. So, you see that as it's not unreasonable before a state court to look at the state of the law and say this is more like the Bible reading cases than it is anything else. And although they could be exactly right or exactly wrong. And I don't think you probably wouldn't say they were wrong. But without making a statement of if they were, had the best interpretation of that law or not, you think it is good. But you think that it's certainly what done reasonable for them to assess it in the way of looking at the Bible cases. Yes, Judge. I think your discussion there and what Judge Neemire said about, well, I'm not sure if this was that that's the habeas standard. You know, we are in habeas. And now explain to me that that being the case now, why it you think that it's she just going to the Bible herself to find those verses. You think absolutely no question solid ground based on our decisions in this court. Absolutely no constitutional. And so now what does it matter that the neutral index is a father to her. What about that? Isn't that more than a neutral index that your father answers the question for you? I don't think that that that matters. I think, you know, the the district court judge below said, you know, what I would say is not a constitutional violation. You know, say, well, what does the father's language back to her matter? In other words, is there a difference between find me a Bible verse and what do you think those Bible verses mean? Yes, that makes a difference. And why would that make a difference? Well, that makes a difference. Well, I think you, well, what do those Bible verses mean? That gives him an opportunity, an opens the door for him to. I think you do some being a neutral index then. I think we're getting closer. I'm not sure that that's where the line is. I think that's another good point here. What we have from the US Supreme Court, this line between internal and external is not very clear. This court said that in Robinson. It's it pointed to that again in Lentz. We don't have anything very clear. And I think that confirms that the State Court here didn't act unreasonable. Why then would it be helpful to have a hearing to develop the record? Only exactly what happened. You know, we're throwing hypotheticals on both sides. And if you may be, maybe, if you change the phrasing of the communication between the father and the daughter, it might make a difference. Why, why no hearing? Well, first of all, no hearing because under Columbia Pinholster, the determination under 2254D must be made based upon the State Court record. And if we don't have that, they haven't, they have not overcome that. This is clearly not an unreasonable application of clearly established law. They haven't overcome that. They are not entitled to a hearing in federal habeas on this issue. And the petitioner has argued that the clearly established law says, well, you get a hearing anyway. You get a hearing every time there's an allegation. Well, that's simply not the case. I point the court to the case of Billings v. Pope, 441, F3rd, 238, specifically page 245 and footnote five on that page. In this case, the court recognized that the Supreme Court has long held that the remedy of allegations of juror partiality is a hearing. But didn't, but didn't, didn't defend it

. I think your discussion there and what Judge Neemire said about, well, I'm not sure if this was that that's the habeas standard. You know, we are in habeas. And now explain to me that that being the case now, why it you think that it's she just going to the Bible herself to find those verses. You think absolutely no question solid ground based on our decisions in this court. Absolutely no constitutional. And so now what does it matter that the neutral index is a father to her. What about that? Isn't that more than a neutral index that your father answers the question for you? I don't think that that that matters. I think, you know, the the district court judge below said, you know, what I would say is not a constitutional violation. You know, say, well, what does the father's language back to her matter? In other words, is there a difference between find me a Bible verse and what do you think those Bible verses mean? Yes, that makes a difference. And why would that make a difference? Well, that makes a difference. Well, I think you, well, what do those Bible verses mean? That gives him an opportunity, an opens the door for him to. I think you do some being a neutral index then. I think we're getting closer. I'm not sure that that's where the line is. I think that's another good point here. What we have from the US Supreme Court, this line between internal and external is not very clear. This court said that in Robinson. It's it pointed to that again in Lentz. We don't have anything very clear. And I think that confirms that the State Court here didn't act unreasonable. Why then would it be helpful to have a hearing to develop the record? Only exactly what happened. You know, we're throwing hypotheticals on both sides. And if you may be, maybe, if you change the phrasing of the communication between the father and the daughter, it might make a difference. Why, why no hearing? Well, first of all, no hearing because under Columbia Pinholster, the determination under 2254D must be made based upon the State Court record. And if we don't have that, they haven't, they have not overcome that. This is clearly not an unreasonable application of clearly established law. They haven't overcome that. They are not entitled to a hearing in federal habeas on this issue. And the petitioner has argued that the clearly established law says, well, you get a hearing anyway. You get a hearing every time there's an allegation. Well, that's simply not the case. I point the court to the case of Billings v. Pope, 441, F3rd, 238, specifically page 245 and footnote five on that page. In this case, the court recognized that the Supreme Court has long held that the remedy of allegations of juror partiality is a hearing. But didn't, but didn't, didn't defend it. Try to get a hearing in the State on this. Yes, he did. But he didn't get one. He didn't, but he's not entitled to a hearing in federal courts. Still, unless he overcomes 225, 4D, which he hasn't done. But don't we get to review whether or not the denial of his request for ever? Don't we get to review in some way the State's denial of his request for hearing? Not if he doesn't overcome 225, 4D. I believe in district court, the defendant made an argument based upon this court's line of cases in Winston V. Kelly and Winston V. Pearson that, you know, in that case, it says there, there are times when there can be denover review where, and the submission of new evidence in federal court where the State court refused to hear. No, no, wait a minute. There has to be not a day no go hearing by us. I'm talking about, doesn't the federal district court at some point get to review a claim in a habeas petition that the defendant asked for was entitled to but was improperly denied a hearing, not some sort and state court? Not if he will not, not unless he overcomes 225, 4D and with that, if he does under 225, 4D, he must have shown a amount of diligence and requesting the hearing. So just requesting the hearing won't get him there. I thought you were going to talk about diligence, but you think you don't even get to a discussion of diligence in this case. Not if they don't overcome 225, 4D, but if they do and hear the district court made a finding findings of fact indicating that they did not exercise diligence in investigating this claim and that. Do you think that the court shouldn't have even gotten to that issue? Well, I think that the court determined that issue on a motion for depositions prior to the time that the court made the decision. So it sort of had to do it in anticipation of what might happen. But in any regard, the district court here made findings of fact that they did not exercise diligence in investigating this. In your estimation, what was the single most important fact that the district court found that showed lack of diligence? Well, I think that they, I think you have to look at the contrast between what they wanted to ask in federal court versus what they told the state court they were seeking. So in federal court, they submitted. They're lack of diligence. I think it's lack of diligence in not seeking and not telling the state court what it wanted specifically, what it wanted the evidentiary hearing to. Well, that lack of diligence to fail you to articulate. I think it goes along with the fact in this affidavit submitted by the investigator that he didn't say in their question. Or let me issue this way. In your estimation, what single thing should, maybe more than one thing, what's one thing clearly that the defendant should have done to show diligence that he didn't do? Well, I think the biggest fighting effect in that regard is that they presented no evidence indicating why they couldn't have asked the father these questions. They clearly had access to the father. His access was never restricted. We have no record evidence indicating that it was. And with that, again, I'll point to what they told the district court they wanted to get out. It was like 13 very detailed questions. They never mentioned that to the state court. I think it's important when you're looking at diligence to look at what was reasonable. And I think in this case, they are seeking to overturn a jury verdict. And they're seeking to ask questions of a juror or father, her grandmother or the father's mother

. Try to get a hearing in the State on this. Yes, he did. But he didn't get one. He didn't, but he's not entitled to a hearing in federal courts. Still, unless he overcomes 225, 4D, which he hasn't done. But don't we get to review whether or not the denial of his request for ever? Don't we get to review in some way the State's denial of his request for hearing? Not if he doesn't overcome 225, 4D. I believe in district court, the defendant made an argument based upon this court's line of cases in Winston V. Kelly and Winston V. Pearson that, you know, in that case, it says there, there are times when there can be denover review where, and the submission of new evidence in federal court where the State court refused to hear. No, no, wait a minute. There has to be not a day no go hearing by us. I'm talking about, doesn't the federal district court at some point get to review a claim in a habeas petition that the defendant asked for was entitled to but was improperly denied a hearing, not some sort and state court? Not if he will not, not unless he overcomes 225, 4D and with that, if he does under 225, 4D, he must have shown a amount of diligence and requesting the hearing. So just requesting the hearing won't get him there. I thought you were going to talk about diligence, but you think you don't even get to a discussion of diligence in this case. Not if they don't overcome 225, 4D, but if they do and hear the district court made a finding findings of fact indicating that they did not exercise diligence in investigating this claim and that. Do you think that the court shouldn't have even gotten to that issue? Well, I think that the court determined that issue on a motion for depositions prior to the time that the court made the decision. So it sort of had to do it in anticipation of what might happen. But in any regard, the district court here made findings of fact that they did not exercise diligence in investigating this. In your estimation, what was the single most important fact that the district court found that showed lack of diligence? Well, I think that they, I think you have to look at the contrast between what they wanted to ask in federal court versus what they told the state court they were seeking. So in federal court, they submitted. They're lack of diligence. I think it's lack of diligence in not seeking and not telling the state court what it wanted specifically, what it wanted the evidentiary hearing to. Well, that lack of diligence to fail you to articulate. I think it goes along with the fact in this affidavit submitted by the investigator that he didn't say in their question. Or let me issue this way. In your estimation, what single thing should, maybe more than one thing, what's one thing clearly that the defendant should have done to show diligence that he didn't do? Well, I think the biggest fighting effect in that regard is that they presented no evidence indicating why they couldn't have asked the father these questions. They clearly had access to the father. His access was never restricted. We have no record evidence indicating that it was. And with that, again, I'll point to what they told the district court they wanted to get out. It was like 13 very detailed questions. They never mentioned that to the state court. I think it's important when you're looking at diligence to look at what was reasonable. And I think in this case, they are seeking to overturn a jury verdict. And they're seeking to ask questions of a juror or father, her grandmother or the father's mother. And- You have to allow sometimes there can be a constitutional error arising out of what a jury talked to. Somebody I thought the jury room about. Absolutely. And that would overturn a jury verdict perhaps. Absolutely. But with that standard in mind, with the sacredness of the jury verdict, I think to exercise diligence, they're going to have to do more than what they did in this case. And they clearly had access to the father. They didn't tell the state court any specific- They didn't- they asked- The only specific question they asked, and this was a finding by the district court, was which exact passage was given to the juror. I think given the fact that we're trying to overturn a jury verdict, what is reasonable is more than what they did in this particular case. Let me ask you this. First of all, I think Judge Shed very skillfully pulled you back from the ledge. But as I understand it, let's just assume that the language of Rimmers met. That there was a- it's is a criminal case. It was a private communication. It was with the juror during a trial. And it was about a member, about a matter of pending before the jury. Let's just assume that and stop. We won't continue that other argument. But we've said in this court that that's not the end of the inquiry. Because the decision has to be made first of all as to whether or not that the contact was innocuous or not. And if it's a innocuous, that's the end of it. You don't presume prejudice. You don't need a hearing. You don't need to go any further. If it's more than an innocuous, then of course the opposite occurs. And the- Marjouge seems to have adopted our reasoning in that regard by citing our cases with a particular regard to those cases involving consultation of the Bible. So I don't understand why you want to argue about whether it was a matter before the jury and deny that instead of taking the position that this is an innocuous communication. And that the bar court is simply making the same decision we've made. And then take your argument from there. I just don't understand why you want to disavow any relevance for Rimmer. Well, I think I'm basing that on the reading of the Bible cases and saying, you know, it's not an unreasonable thing to read, Rimmer, that way to say that the Bible doesn't involve the issue. But also I have argued. I think that the contact was innocuous. And as Judge Shed did with his questioning, you know, using her father as a neutral index, that's what we have here. And so I think that that is a reasonable way to look at this

. And- You have to allow sometimes there can be a constitutional error arising out of what a jury talked to. Somebody I thought the jury room about. Absolutely. And that would overturn a jury verdict perhaps. Absolutely. But with that standard in mind, with the sacredness of the jury verdict, I think to exercise diligence, they're going to have to do more than what they did in this case. And they clearly had access to the father. They didn't tell the state court any specific- They didn't- they asked- The only specific question they asked, and this was a finding by the district court, was which exact passage was given to the juror. I think given the fact that we're trying to overturn a jury verdict, what is reasonable is more than what they did in this particular case. Let me ask you this. First of all, I think Judge Shed very skillfully pulled you back from the ledge. But as I understand it, let's just assume that the language of Rimmers met. That there was a- it's is a criminal case. It was a private communication. It was with the juror during a trial. And it was about a member, about a matter of pending before the jury. Let's just assume that and stop. We won't continue that other argument. But we've said in this court that that's not the end of the inquiry. Because the decision has to be made first of all as to whether or not that the contact was innocuous or not. And if it's a innocuous, that's the end of it. You don't presume prejudice. You don't need a hearing. You don't need to go any further. If it's more than an innocuous, then of course the opposite occurs. And the- Marjouge seems to have adopted our reasoning in that regard by citing our cases with a particular regard to those cases involving consultation of the Bible. So I don't understand why you want to argue about whether it was a matter before the jury and deny that instead of taking the position that this is an innocuous communication. And that the bar court is simply making the same decision we've made. And then take your argument from there. I just don't understand why you want to disavow any relevance for Rimmer. Well, I think I'm basing that on the reading of the Bible cases and saying, you know, it's not an unreasonable thing to read, Rimmer, that way to say that the Bible doesn't involve the issue. But also I have argued. I think that the contact was innocuous. And as Judge Shed did with his questioning, you know, using her father as a neutral index, that's what we have here. And so I think that that is a reasonable way to look at this. I think there are several reasonable ways to look at this. And well, if the communication between the father and the daughter involved the daughter's relation of the facts that moved her to conclude that the death penalty was an issue, he said they took the man out to a field and shot him the back of the head. And the father said directed him to the passage. We'd have a serious problem, wouldn't we? Yes, Your Honor. That would be a constitutional violation because that's about the subject matter before the jury. The father knows about the facts of the case and is. And he makes a recommendation. Yes, sir. I think Judge Traxler's positing of Rimmer is probably where Rimmer is. It does say about the case and there is a question whether it's about the case, what they meant when they said that. If it's just and I was trying during my questioning of your colleague was suggesting that if you inquire about the moral basis for decision making as opposed to the decision on the evidence that that may not be about the case. It may be about my moral compass as whether I can make the decision. And I would have thought that that moral decision should have been uncovered during voidier rather than during this phase. But that all said when I read her statement, it looks to me like she would have qualified as a juror could have qualified as a juror. But now was facing the emotional as she said, very emotional decision of whether I can impose the death penalty. She clearly states that she thought the evidence supported the death penalty. And then she said after the trial juror Kim Anderson shared with me how she had been struggling and having a hard time with choosing the death penalty. And so they both looked like they were the evidence indicated death penalty but they needed the ability morally to do it. My question would be as a matter of constitutional law in facilitating that moral ability to make the decision. Is that about the case and does that fall under remor or is that something extraneous as part of the makeup of the people and is not an improper influence? I'm pronouncing a time I answer your question. It is not an improper influence. In the reading of the cases, the uncertainty tells us, the uncertainty that you have expressed tells us that this was not an unreasonable application under the habeas standard to say why you said you're not sure whether remor could be read that way. I remember it could be read to include the moral decision. Well, let me go just one step further. She says to the father, she says he probably should get the death. He probably should get the death penalty. Doesn't relate the evidence but this man should probably get the death penalty. I'm having a lot of trouble and I don't think I can impose it unless the Bible tells me I can. The father says there's a place in the Bible that tells you you can and I for an eye. She now feels better and she imposes the death penalty. Is that an improper influence? That is not an improper influence. I think you're getting closer. I think you're getting a little bit closer. But like Robinson, this court said in Robinson, that line is just really unclear. Your Supreme Court case law is unclear where that line is

. I think there are several reasonable ways to look at this. And well, if the communication between the father and the daughter involved the daughter's relation of the facts that moved her to conclude that the death penalty was an issue, he said they took the man out to a field and shot him the back of the head. And the father said directed him to the passage. We'd have a serious problem, wouldn't we? Yes, Your Honor. That would be a constitutional violation because that's about the subject matter before the jury. The father knows about the facts of the case and is. And he makes a recommendation. Yes, sir. I think Judge Traxler's positing of Rimmer is probably where Rimmer is. It does say about the case and there is a question whether it's about the case, what they meant when they said that. If it's just and I was trying during my questioning of your colleague was suggesting that if you inquire about the moral basis for decision making as opposed to the decision on the evidence that that may not be about the case. It may be about my moral compass as whether I can make the decision. And I would have thought that that moral decision should have been uncovered during voidier rather than during this phase. But that all said when I read her statement, it looks to me like she would have qualified as a juror could have qualified as a juror. But now was facing the emotional as she said, very emotional decision of whether I can impose the death penalty. She clearly states that she thought the evidence supported the death penalty. And then she said after the trial juror Kim Anderson shared with me how she had been struggling and having a hard time with choosing the death penalty. And so they both looked like they were the evidence indicated death penalty but they needed the ability morally to do it. My question would be as a matter of constitutional law in facilitating that moral ability to make the decision. Is that about the case and does that fall under remor or is that something extraneous as part of the makeup of the people and is not an improper influence? I'm pronouncing a time I answer your question. It is not an improper influence. In the reading of the cases, the uncertainty tells us, the uncertainty that you have expressed tells us that this was not an unreasonable application under the habeas standard to say why you said you're not sure whether remor could be read that way. I remember it could be read to include the moral decision. Well, let me go just one step further. She says to the father, she says he probably should get the death. He probably should get the death penalty. Doesn't relate the evidence but this man should probably get the death penalty. I'm having a lot of trouble and I don't think I can impose it unless the Bible tells me I can. The father says there's a place in the Bible that tells you you can and I for an eye. She now feels better and she imposes the death penalty. Is that an improper influence? That is not an improper influence. I think you're getting closer. I think you're getting a little bit closer. But like Robinson, this court said in Robinson, that line is just really unclear. Your Supreme Court case law is unclear where that line is. And for that reason, the state court decision here was not an unreasonable application. Let me say this. This takes you to the notice of the fact that I hate to turn down a compliment from another judge. But I'll say this, the reason that I asked those questions, because I have some of those same questions. And honestly, your response to Judge Trash's question didn't really sit right with me. He seemed like it was a reasonable question. Was it about that? And I noted that I think the record is actually lacks some information that could be in the record of somebody had been more diligent perhaps that we would know. You could have, the father could have been asked further about it and those kind of things. But it just, I thought you quite frankly, I don't mean this to be offensive to you. You were slicing it like a lawyer. You were looking at the law and slicing it. But in the general context, those answers just didn't really seem to bring true a ring responsive to Judge Trash's question. That's why I was saying those case, they are hard. They are hard. And that's why it seems to me that perhaps the deciding factor comes down to our standard of review. It's not what we say in the first instance, but whether or not it's unreasonable for the court to have decided in these facts what they decided. Yes, and I'm sorry, Your Honor. I didn't, didn't mean to not answer the question. No, I thought you were answering. You were just slicing it very, very thin. And it's slicing it thin. It just, I thought, I think it was responsive, but it's sort of in a general sense. It just sort of felt to me like it was an odd response. That's why. Just for note. Thank you, Your Honor. Thank you, Ms. Hollis. Mr. Hale, you have for a fly time. Regarding the issue of innocuousness, the, to understand the case law referring to innocuousness, the innocuousness described it as a minimal standard that seeks to determine whether there is any reasonable reason to be. The reasonable possibility that the jurors verdict could have been influenced by the conversation. And based on this court's prior decision in, in full with versus Lee, where there are allegations of improper jury conduct, which if prove might be true, a hearing is what the remedy is, is that is required. And this court can find a violation of 2254D based solely on the failure to grant a hearing because the hearing is what is, is, is what Smith requires. That's a separate issue, then, the ruling on the record here

. And for that reason, the state court decision here was not an unreasonable application. Let me say this. This takes you to the notice of the fact that I hate to turn down a compliment from another judge. But I'll say this, the reason that I asked those questions, because I have some of those same questions. And honestly, your response to Judge Trash's question didn't really sit right with me. He seemed like it was a reasonable question. Was it about that? And I noted that I think the record is actually lacks some information that could be in the record of somebody had been more diligent perhaps that we would know. You could have, the father could have been asked further about it and those kind of things. But it just, I thought you quite frankly, I don't mean this to be offensive to you. You were slicing it like a lawyer. You were looking at the law and slicing it. But in the general context, those answers just didn't really seem to bring true a ring responsive to Judge Trash's question. That's why I was saying those case, they are hard. They are hard. And that's why it seems to me that perhaps the deciding factor comes down to our standard of review. It's not what we say in the first instance, but whether or not it's unreasonable for the court to have decided in these facts what they decided. Yes, and I'm sorry, Your Honor. I didn't, didn't mean to not answer the question. No, I thought you were answering. You were just slicing it very, very thin. And it's slicing it thin. It just, I thought, I think it was responsive, but it's sort of in a general sense. It just sort of felt to me like it was an odd response. That's why. Just for note. Thank you, Your Honor. Thank you, Ms. Hollis. Mr. Hale, you have for a fly time. Regarding the issue of innocuousness, the, to understand the case law referring to innocuousness, the innocuousness described it as a minimal standard that seeks to determine whether there is any reasonable reason to be. The reasonable possibility that the jurors verdict could have been influenced by the conversation. And based on this court's prior decision in, in full with versus Lee, where there are allegations of improper jury conduct, which if prove might be true, a hearing is what the remedy is, is that is required. And this court can find a violation of 2254D based solely on the failure to grant a hearing because the hearing is what is, is, is what Smith requires. That's a separate issue, then, the ruling on the record here. The, the issue now is if the state court record is inadequate, should we allow it to be expanded in the federal court? And I think the relationship between the state judicial system and the federal judicial system as articulated in 2254 and by the Supreme Court, and they get tougher and tougher every year, they would like, I think, to not even have the federal courts involved in state proceedings and have them be the direct review, except the course the great writ is applicable to any judge. So the, the more recent opinions as you follow the trend in habeas, they really wanted to for and in this case they say we're going to review whether a state court was unreasonable in the application of law based on the record before the state court. Exactly. And the, the state court was unreasonable because it failed to grant a hearing on the basis of evidence, which was reasonably likely to have prejudice to juror. And, and that's why this court, this court doesn't need, we don't need any of this. What about the questions of diligence? What about the question of diligence and pursuing that? We hired an investigator to go into this much. It is a fair for the district court to look at the question of diligence. Absolutely. Absolutely. And, and we would, I would argue to the court that we were diligent. We had an affidavit from the juror herself. It was corroborated by her father. Those affidavits established a violation of remor. And, because they established an outside communication with a third party about the matter pending before the jury. That alone should have triggered a hearing so that we, so that the state court could determine what the effect of that conversation was. You think of Google, you think a Google search would not have been that would not qualify as being improper. No, you're on, I don't know. Do you think that's because it didn't present the same issue or the courts haven't called up with what internet is? I believe it doesn't present the same issue. Why is that? Because you think the father has some influence. I think the father had some influence and I think that's exactly what he told her matters to the... No, no, no, no, we don't know, but we don't know what she would have found on an internet search. I'm asking you, what is it about? What is it about the internet search that's okay, but talking to her father that it didn't? I'm not arguing with him, I'm asking you. Well, because the father is somebody she obviously respected. She ate with them all the time through the trial. I stopped for a second. If she'd had a conversation with a third party that wasn't her father and wasn't particularly close to her, that would be more like an internet search in your mind. I think that it would go to the issue of whether there was... So I'm just saying, would that be more like talking to her father or more talking to an internet? I think it'd be more like talking to the father. I don't think she's been talking to anybody about her life or death decision. But that, but we don't internet. She's in essence getting information

. The, the issue now is if the state court record is inadequate, should we allow it to be expanded in the federal court? And I think the relationship between the state judicial system and the federal judicial system as articulated in 2254 and by the Supreme Court, and they get tougher and tougher every year, they would like, I think, to not even have the federal courts involved in state proceedings and have them be the direct review, except the course the great writ is applicable to any judge. So the, the more recent opinions as you follow the trend in habeas, they really wanted to for and in this case they say we're going to review whether a state court was unreasonable in the application of law based on the record before the state court. Exactly. And the, the state court was unreasonable because it failed to grant a hearing on the basis of evidence, which was reasonably likely to have prejudice to juror. And, and that's why this court, this court doesn't need, we don't need any of this. What about the questions of diligence? What about the question of diligence and pursuing that? We hired an investigator to go into this much. It is a fair for the district court to look at the question of diligence. Absolutely. Absolutely. And, and we would, I would argue to the court that we were diligent. We had an affidavit from the juror herself. It was corroborated by her father. Those affidavits established a violation of remor. And, because they established an outside communication with a third party about the matter pending before the jury. That alone should have triggered a hearing so that we, so that the state court could determine what the effect of that conversation was. You think of Google, you think a Google search would not have been that would not qualify as being improper. No, you're on, I don't know. Do you think that's because it didn't present the same issue or the courts haven't called up with what internet is? I believe it doesn't present the same issue. Why is that? Because you think the father has some influence. I think the father had some influence and I think that's exactly what he told her matters to the... No, no, no, no, we don't know, but we don't know what she would have found on an internet search. I'm asking you, what is it about? What is it about the internet search that's okay, but talking to her father that it didn't? I'm not arguing with him, I'm asking you. Well, because the father is somebody she obviously respected. She ate with them all the time through the trial. I stopped for a second. If she'd had a conversation with a third party that wasn't her father and wasn't particularly close to her, that would be more like an internet search in your mind. I think that it would go to the issue of whether there was... So I'm just saying, would that be more like talking to her father or more talking to an internet? I think it'd be more like talking to the father. I don't think she's been talking to anybody about her life or death decision. But that, but we don't internet. She's in essence getting information. All that talking is just getting information. Well, if she was talking in a chat room to somebody, I believe it'd be a lot more like her father, but if she's just searching on her own and looking for places that would reference to her in a truly neutral fashion, where to look in the Bible... I just want to talk to someone. I just want to take you back to them a very question of what the linchpin of your argument is. If she did an internet search, which you say is okay, and all she asked was, and there's something in the Bible for an eye for an eye, you think that would be okay. I think that would be... that would not be a violation of remor. Okay. But if she just went to somebody on the street, she would think, excuse me, if there's something in the Bible about an eye for an eye, you think that would be okay or not okay? I think that when she has conversations with the third party about the subject matter of the case, it triggers a presumption of prejudicial impudence. You just think it's... What the state should have to prove... No, no, no. It was not prejudiced. No, no, no, no, no, wait a second. So then you don't think that the fact that he's her father is necessary. You think it's helpful. I think it helps get over the threshold of what is innocuous or not. I think it makes it more likely that there's a reasonable possibility of influencing her, that triggers the need for an inquiry and for this court to order their hearing be held so that there can be an examination of what the prejudicial effect was. Thank you, Mr. Hill. I appreciate your argument. And I note your court appointment. We appreciate very much for undertaking representation of this plan. Thank you very much, sir. We'll come down in Greek Council and then go into our next case. Thank you.

Mr. Hale, whenever you're ready. My name is Robert Hale. I'm from Raleigh, North Carolina. Robert Hale and Sreshitz. As you do with me is Daniel Blow. It's Sreshitz with my firm. Thank you for allowing us the opportunity to argue today. May I please the court? In 1892, the United States Supreme Court held in Maddox versus the United States that private communications possibly prejudicial between jurors and third parties and validates the verdict unless their farmlessness be made to appear. In 1954, the Supreme Court reiterated that basic principle in Rimmer versus the United States and held any private communication, contact or tampering between a non-Jurror and non-Jurror about the matter pending before the jury is to be deemed presumptively prejudicial. And again, in 1982 in Smith versus Phillips, the court held that the remedy for a claim of implied juror bias is a hearing where the defendant would have an opportunity to prove the existence of actual bias. In this case, the state court unreasonably applied this clearly established federal law in three ways. First, it failed to grant a hearing for the defendant to allow him the opportunity to prove actual bias. Second, it failed to presume that the conduct between juror Foster and her father was presumptively prejudicial. In third, it applied an improper standard in factually in denying a Rimmer analysis because it required or it looked only to evidence of tampering. And in fact, what it could have looked to was evidence that any contact communication or tampering about the matter pending before the jury. A hearing was the state court's order indicates that this claim was denied as a matter of law based upon cases from this court regarding Bible reading. Robinson V. Polk, Lens V. Washington, Billings V. Polk, and Lynch V. Polk. All of these cases involved a juror's consultation of the Bible or recitation of Bible verses to other jurors. None of them involved the jurors' contact with a third party during which the juror discussed the case, or discussed the sinnancing decision. And I have to go on hypothetical to see how you react to it. If a juror goes home and says to her father, I'm sitting on a capital case we have to decide whether there's life and death. Is there any moral support in the Bible to allow a verdict of death? And the father says, yes, the Bible has the eye for an eye. And she says, thank you, reads it, and that's it. She's looking for the ability morally to make a judgment. Is that a violation of renter? That's all she tells the father. I'm sitting on a case in which I have to decide life and death. And I need to know whether there's moral support for the death penalty in the Bible. Well, if all that they discuss is that there is... That's what I said. Nothing more. I believe it could still be a violation of a rumor. But we don't know that that's what happened in this case. I look. But if that's... If that's hypothetical, I need to know what your position is on that. If all she said was... All he said was there is moral support in the Bible for the imposition of death. It still would be an improper contact. And it would need to be resolved that adhering. I discussed the evidence in the case and discussed the defendant. I didn't discuss any. Basically, she's saying, I have a life or death decision to make. And can I make that consistent with the Bible? Yes. And he says, yes, there's an eye for an eye, phrase in the Bible. Several places. And gives her one. And she says, okay, thank you. Now, that's the hypothetical I'm giving you. Yes, sir. And you say that violates renter? Well, I say that, if I get in with, it's a private, extrajudicial communication. You answer yes or no and then proceed with your explanation. If the conversation was simply legal... Maybe the hypothetical. There's nothing more in it. I would not answer it, don't answer it. But I respectfully suggest to you that seeking moral support for a position maybe should have called out when they did voidier. Could you, Madame Jurre, impose the death penalty if the evidence supported it? But it seems to me that she wasn't at that point. She basically was seeking, in my hypothetical, seeking moral support. And then the question, I follow up question, obviously, would be how is that different from here? Well, if your honor, I believe that the inquiry must first proceed from what the conversation was. And if the hypothetical, you've never answered it, it would help our discussion. But my hypothetical is she comes home and says, I have to make a, as a juror, I have to make a life or death decision. Is there moral support in the Bible for me to give a death penalty? If I would, that's where I'll... Well, but she's inviting there is his view of the Bible. I just ask you, is that a violation of the law? I guess it just calls for you to say yes or no if you can and then explain your response. I would still submit that it is a violation of remor because yes, because it is a private contact with another party about the matter pending before the jury. Whether it's prejudicial, maybe a different story, and this court... All right, let me change the hypothetical. She comes home and she says, Dad, I have a very difficult decision to make involving life, death, liberty of a defendant. Will you help me to pray to reach the right decision? Is that a violation? And he helps her to pray to reach the right decision. Yes, and in propaganda? It's still in proper conduct because if she's speaking about... If she's speaking to... And what's your base to support that? It's certainly conduct that warrants an inquiry into find out what their prayer was about. I'm asking you. I'm asking you as a matter of legal constitutional law, is that a violation of the Constitution based on what I just told you? And you're saying it is, and now I need to have from you what case are you relying on to support that? I would rely back on remorchards, and I think that... Okay, perfect. I understand where you are. And that because what is required is then an inquiry into harmlessness. And if there... Well, if it's error, if it's improper. Well, if any private contact or communication with a... Another person who is outside of the jury is held to be deemed presumptively prejudicial, then the presumption should apply under this clearly- So it goes to church, and she tells her priest, I have to make a very difficult decision tomorrow. I have to make a life or death decision. Will you help me to pray? And the priest, and she pray together and says, Dear Lord, give me the guidance to make the right decision. Improper? If she prays to herself, no. I said no, if my hypothetical, I don't want to get new, she's with the priest, and the priest guides her in the prayer. Well, to the extent, if the priest guides her in such a way as to direct her to a specific biblical past... You can answer my questions, Kenya. I asked a question that asked, does that violate the law, my hypothetical? Not if, I don't want you to change the facts. Well, I'm trying to answer your question, Your Honor, and the... What I believe... I told you... She goes to the priest and says, tomorrow morning, I have to make a difficult decision about the life, death, or liberty of a defendant. And would you help me to pray to make the right decision? He says, yes, I will, and he then posits the prayer, and she says, Amen. And the prayer is, dear Lord, give this woman guidance to seek the right result. No, sir, I don't think that is a violation. Okay, fair enough. Thank you. But I think when the evidence is different than that, and the evidence that she goes and speaks with her father, and they have a conversation about an eye for an eye in response to her request for, where she should go for guidance, and he directs her to one specific passage that says one specific thing, rather than saying, honey, just go pray, on your Bible, that's a completely different situation. And that's one... Your Honor, I agree it's different, but I'm not sure that the father in the daughter, and my hypothetical, is talking about the case anymore than the daughter in the priest is. Well, to the extent that it, whether or not it's about the specific case, is... I mean, it is certainly important that it's about her sinencing decision. But if the... If, like, as in this case, in our evidence, is that the daughter asked her father where she should look for guidance, then they had this conversation about an eye for an eye before he even knew what the passage was, or exactly where it was. This is a conversation about if someone kills someone, then someone should... What's the... What's the lynch pen of your argument here? It's because a Bible verse was discussed. It was because it was a conversation with somebody outside the jury, or a conversation with her father outside the jury, which is the lynch pen. It's because it was a conversation with a third party who was not a member of the jury. Is the status of... Is the status that it's her father? Is that important at all or... Yes, this, Your Honor, it's very important, because this is somebody who she... Well, I'm not trying to get you to answer. What's the lynch pen? If this had not been her father, would you still make the same argument? Yes, but I think it would turn on... No, no, I just said, would you make the same argument? If she went to a neutral person and found a Bible verse, that would still... You'd think that would still be improper. I think it would be improper, I do. When I say improper, I'm talking about unconstitutional, you understand. You think it would be unconstitutional. Do you think if they'd been a neutral conversation that had not included any reference to a Bible verse, would you... Would you... Would you still make the argument? If it was a conversation about her sentencing decision, yes. So you think it... So your lynch pen is... I'm not trying to put words in your mouth, I'm trying to understand it. Is that a juror had a conversation with somebody outside the jury that in some way can be seen as... Relating to the case... Case, that's what you think. It was a conversation. It was a conversation. But was that the lynch pen, the argument? The lynch pen is that there was a violation of remor because it was a private contact and communication about her sentencing decision with somebody who was not a member of the jury. And in that conversation, an opinion from her father was given to her when he directed her to one specific passage and not the Bible juror. Does it say that he's her father carrying any weight in your analysis? It does... Absolutely, it does. Particularly so. In terms of prejudice because this was somebody who she obviously respected, she described as a great parent during the Bible. Did he know the Bible verse or did he have to go and find the Bible verse? He did not know the... He knew about the eye for an eye concept and that's what they discussed. But he did not have the verse and so he contacted his mother. His mother then gave him a specific reference which then he... This has been the girl's grandmother. That would be the... Not exactly sure if she was a grandmother but it was his mother then he provided that reference and another private conversation to his daughter which she then read. Why isn't that like a search engine, like a Google search? Well, what did the father step in the shoes of a Google search engine? Well, because first of all the father is looking through his lens of the Bible. If you do a Google search... You do a Google search, you're going to find somebody's view of what the Bible says. Well, you're also going to find a whole lot of other views. You're not going to find... You don't have to look at them though. You can just put the first one and look at that one. I'm just asking why isn't he analogous to a search engine? Well, a search engine would come up with a lot of different results. He came up with one and in his mind as he discussed with her... If he used a search engine, what if he used a search engine and you went with the first response that came up? That's all that you read. Would that be a violation, brother? Well, it's not a private contact with a third person about the subject matter of litigation. And anyway, we don't know exactly what was just... I'm not saying but you don't think that would be a constitutional violation. I think that if he said it's just like a search engine, if you type in which I have... I know, I know. We don't know how that works. I'm just asking you don't think that would be a violation. I don't think it would be a violation. No, if she did a Google search. And I don't think it would be a violation if she picked up the Bible and opened it up and just wherever it landed, she read it. I don't think that would be a problem. But if she went looking for that specific verse in the Bible... I don't think that would be a problem. So the problem is not the Bible verse. The problem is not extraneous information. The problem is limited extraneous information. The problem is conversation with the father that gets this out of the realm of Bible reading or even her own Bible searching. The problem is... The question that the father was reflecting on the case or the evidence, she didn't tell him anything about it. There's no evidence that she did. So she's had to tell him I have to make a life or death decision. Is there any support for death decision in the Bible? And he says, I for an eye. Well, she... That's not exactly what she asked him. She asked him where she should look for guidance. Where she should... Where she could look for guidance and he directed her to one specific passage. He didn't say... She didn't say, please tell me all of the places in the Bible. She said, where do you think I should look that? Where do you think I should turn for helping guidance? And she shouldn't have done it. And what she did was invited him to look through his view of the Bible and then transmit that... Is it clear that it was one specific passage or one specific concept from the Bible? It's clear that there was a concept discussed and then a passage later provided that she read. But this is not a Bible reading case. It's an improper contact with father case. It's a standard... Is the standard weather or not? We think it's a violation or is it standard whether or not... Isn't the standard whether we think the state was unreasonable and saying that it was not a violation? It is... It is the letter. It is whether or not the state court reasonably could have determined that it was not a violation. It's stronger than that. We have to find that it was unreasonable, right? Right. It was unreasonable. We have to defer to the state in a very strong difference because Congress does not want us second guessing the states unless it's clearly unconstitutional under Supreme Court law. That is correct. Thank you. This is here from Ms. Hollis. Good morning, Your Honours. Judge Meemar, I think you hit the nail on the head here with the standard. It's whether you guys think it... The court thinks it's unreasonable. An unreasonable application of clearly established law and giving the hypotheticals to Mr. Hale. So he cited absolutely no case law, not from the U.S. Supreme Court or even for that matter, for this court, to support his position that this was an unreasonable application here. And I think that what he is... What the petitioner has done is asking the court to forego the habeas standards and to read the Supreme Court cases, particularly Rimmer, at a high level of generality. And in fact, I think if you listen to him, he's asking you to read out the qualification that it be about the matter pending before the jury. And with regards to the habeas standards, Judge Meemar, this is not a violation of the Constitution, what happened here. But you said you're not sure whether it was a violation. Well, that's the habeas standard, where no... You have to have no possibility that Fair Minus Juris disagree that the State Court decision conflicts with the U.S. Supreme Court case law. And we simply don't have that here. And we know from the U.S. Supreme Court case law, the case law of this court, that what is clearly established is an extremely strict requirement. It's the holdings of the U.S. Supreme Court cases. And Rimmer is not the clearly established law here. Rimmer dealt with a bribe of a juror during trial that was investigated by the FBI. And with that, the necessary implication for that is that the State Court did not unreasonably apply clearly established law. Well, let me ask you this. The incident that we're talking about, was this... did this occur during a criminal case? Yes, sir. And was it a private communication? Yes, sir. It was not in front of the jury. And was it with a juror during a trial? Yes, sir. It was a subject matter of it, the matter pending before the jury. No, sir. It was not. Whether or not to give the death penalty was not a matter pending before the jury. This, as was discussed, was Mr. Hill this involved the jurors in examining her internal conscious asking... What was my question was, did the subject matter of the conversation involve the death penalty? Well, not that was a matter pending before the jury. Your Honor, I...no, it did not. It did? It's a very... What were they talking about? They were talking about the jurors' internal conscious. She did not ask her father. I think the district court did a really good job here examining this case. She did not ask her father what punishment to him for... I didn't ask if she asked for her opinion. I asked if the subject matter of the communication was a matter pending before the jury. No, Your Honor. It was not about the herst trial specifically. Had nothing to do with the death penalty. It had to...Your Honor, no. It had to do with her internal conscious. She used her father as Judge Shed indicated... And what, the magistrate Judge below said, as a neutral index. Well, I didn't indicate that. I asked a question about that. I'm sorry, Judge Shed, you indicated through your questioning. That she used her father as a neutral index and one who could simply point her in the biblical materials that related to... To what, related to what? Her decision, her internal conscious and how that related to her. To do what? To impose the death penalty. Right, and you don't think that's a matter pending before the jury? Your Honor, the cases do not read that way. You look at the Bible reading cases from this court and they talk about... Durs reading the Bible specific passages, I, for an eye, and it's an examination of their own internal consciousness. But you just deny that the subject matter of the conversation was a matter pending before the jury. Yes, Your Honor, because of those cases, Your Honor. Well, we're on the same case. I mean, is this herst versus Lasseter? Yes, Your Honor. Because in those, I think if you look at those Bible reading cases, what we have here is we have, like you pointed out, we have a contact. But then the subject matter of the contact, regarded dealt with the Bible. And you look at cases from this court determining what the clearly established law is regarding the Bible. And it says the Bible does not bear on the fact of the case. It has no value in weighing the aggravating and mitigating evidence. The facts in this case are actually a little more helpful, and you didn't point them out, or a little more helpful to you, because it looks as if she had already made the decision that the death penalty was the appropriate standard. She said there was just not enough evidence presented in mitigation, and she explained why. So it looked clearly, and then she said this was an emotional case. It looks clearly like she was seeking moral support from the Bible to make a decision to support a decision that she had made. That's correct. And the moral support was to get, find whether the Bible would authorize her to put in the death penalty. And my supposition in reading that, together with what she said she talked to her father was, I mean, you don't need the Bible to say no, death penalty. You need the Bible to say will it entitle me to impose the death penalty if that's my decision. And the father says, I am for an I-2-2. So I don't think you can read anything more based on this record than the fact that she was seeking moral support for a death penalty sentence that she had already decided to do. And she said there just was not enough evidence presented in mitigation. That is correct, Your Honor. And I believe that that is why this case is very closely related to those, to the Bible reading cases from this court. And that is why the state courts reliance on those cases was not, was, or going that way was not, the reason. This is, this seems to me that this is sort of an issue with the case. I must say, if I understand your position. It is, as I understand it, it looks as if she was talking to her father about the case she was sitting on. I don't think there's any evidence in the record that he knew about that case, but you got to wonder, he doored a wasn't disappearing for days on end. I mean, he knew this door was doing something. My guess is, it's not too much of a length to know that for him to know she's involved in that case. I don't think there's anything in the record that indicates that, quite frankly. Is there? There is nothing in the record that indicates that. But then, but then, but it does sort of harken back to sort of like a little crevice in the law as to. It looks like, in a general sense, in a general sense, a response to what Judge Tracks will ask you. It's not any indication. She was just having some philosophical dinner discussion about the Bible with her father. She was driven by what she was doing. Isn't that right? She was driven about the circumstances she was in. You characterize that as having to make a personal decision. Yes, sir. But that personal decision was driven by the fact she was in a criminal case, right? Yes, sir. That's why it does look like that conversation pertained to that case or to the death penalty or whatever. But so was that not so? Well, I think you can look at those Bible reading cases and. I was going to suggest your answer is at harkens to those cases where you look at the Bible reading case. And they're not reading the Bible for general edification or hope to go to heaven. They're reading the Bible for guidance for them. Yes, sir. To know what they do in a death penalty case. And this court has said that those cases are not for the state court has failed that there's no error there. There's not unreasonable applications of. So, so then does that harken back to the standard of review in your opinion? Absolutely, Your Honor. And you're, it will state what then that would be. You would think it's not unreasonable for the state court to have done what? To find there was no error. Based on what analysis? Based upon the analysis that what we have here is an innocuous contact between the father. He was a neutral index. I think the magistrate judge tagged that was right on there. He was a neutral index and you get passed that and you just have somebody consulting an implement of faith to satisfy to comfort their internal conscious. So, you see that as it's not unreasonable before a state court to look at the state of the law and say this is more like the Bible reading cases than it is anything else. And although they could be exactly right or exactly wrong. And I don't think you probably wouldn't say they were wrong. But without making a statement of if they were, had the best interpretation of that law or not, you think it is good. But you think that it's certainly what done reasonable for them to assess it in the way of looking at the Bible cases. Yes, Judge. I think your discussion there and what Judge Neemire said about, well, I'm not sure if this was that that's the habeas standard. You know, we are in habeas. And now explain to me that that being the case now, why it you think that it's she just going to the Bible herself to find those verses. You think absolutely no question solid ground based on our decisions in this court. Absolutely no constitutional. And so now what does it matter that the neutral index is a father to her. What about that? Isn't that more than a neutral index that your father answers the question for you? I don't think that that that matters. I think, you know, the the district court judge below said, you know, what I would say is not a constitutional violation. You know, say, well, what does the father's language back to her matter? In other words, is there a difference between find me a Bible verse and what do you think those Bible verses mean? Yes, that makes a difference. And why would that make a difference? Well, that makes a difference. Well, I think you, well, what do those Bible verses mean? That gives him an opportunity, an opens the door for him to. I think you do some being a neutral index then. I think we're getting closer. I'm not sure that that's where the line is. I think that's another good point here. What we have from the US Supreme Court, this line between internal and external is not very clear. This court said that in Robinson. It's it pointed to that again in Lentz. We don't have anything very clear. And I think that confirms that the State Court here didn't act unreasonable. Why then would it be helpful to have a hearing to develop the record? Only exactly what happened. You know, we're throwing hypotheticals on both sides. And if you may be, maybe, if you change the phrasing of the communication between the father and the daughter, it might make a difference. Why, why no hearing? Well, first of all, no hearing because under Columbia Pinholster, the determination under 2254D must be made based upon the State Court record. And if we don't have that, they haven't, they have not overcome that. This is clearly not an unreasonable application of clearly established law. They haven't overcome that. They are not entitled to a hearing in federal habeas on this issue. And the petitioner has argued that the clearly established law says, well, you get a hearing anyway. You get a hearing every time there's an allegation. Well, that's simply not the case. I point the court to the case of Billings v. Pope, 441, F3rd, 238, specifically page 245 and footnote five on that page. In this case, the court recognized that the Supreme Court has long held that the remedy of allegations of juror partiality is a hearing. But didn't, but didn't, didn't defend it. Try to get a hearing in the State on this. Yes, he did. But he didn't get one. He didn't, but he's not entitled to a hearing in federal courts. Still, unless he overcomes 225, 4D, which he hasn't done. But don't we get to review whether or not the denial of his request for ever? Don't we get to review in some way the State's denial of his request for hearing? Not if he doesn't overcome 225, 4D. I believe in district court, the defendant made an argument based upon this court's line of cases in Winston V. Kelly and Winston V. Pearson that, you know, in that case, it says there, there are times when there can be denover review where, and the submission of new evidence in federal court where the State court refused to hear. No, no, wait a minute. There has to be not a day no go hearing by us. I'm talking about, doesn't the federal district court at some point get to review a claim in a habeas petition that the defendant asked for was entitled to but was improperly denied a hearing, not some sort and state court? Not if he will not, not unless he overcomes 225, 4D and with that, if he does under 225, 4D, he must have shown a amount of diligence and requesting the hearing. So just requesting the hearing won't get him there. I thought you were going to talk about diligence, but you think you don't even get to a discussion of diligence in this case. Not if they don't overcome 225, 4D, but if they do and hear the district court made a finding findings of fact indicating that they did not exercise diligence in investigating this claim and that. Do you think that the court shouldn't have even gotten to that issue? Well, I think that the court determined that issue on a motion for depositions prior to the time that the court made the decision. So it sort of had to do it in anticipation of what might happen. But in any regard, the district court here made findings of fact that they did not exercise diligence in investigating this. In your estimation, what was the single most important fact that the district court found that showed lack of diligence? Well, I think that they, I think you have to look at the contrast between what they wanted to ask in federal court versus what they told the state court they were seeking. So in federal court, they submitted. They're lack of diligence. I think it's lack of diligence in not seeking and not telling the state court what it wanted specifically, what it wanted the evidentiary hearing to. Well, that lack of diligence to fail you to articulate. I think it goes along with the fact in this affidavit submitted by the investigator that he didn't say in their question. Or let me issue this way. In your estimation, what single thing should, maybe more than one thing, what's one thing clearly that the defendant should have done to show diligence that he didn't do? Well, I think the biggest fighting effect in that regard is that they presented no evidence indicating why they couldn't have asked the father these questions. They clearly had access to the father. His access was never restricted. We have no record evidence indicating that it was. And with that, again, I'll point to what they told the district court they wanted to get out. It was like 13 very detailed questions. They never mentioned that to the state court. I think it's important when you're looking at diligence to look at what was reasonable. And I think in this case, they are seeking to overturn a jury verdict. And they're seeking to ask questions of a juror or father, her grandmother or the father's mother. And- You have to allow sometimes there can be a constitutional error arising out of what a jury talked to. Somebody I thought the jury room about. Absolutely. And that would overturn a jury verdict perhaps. Absolutely. But with that standard in mind, with the sacredness of the jury verdict, I think to exercise diligence, they're going to have to do more than what they did in this case. And they clearly had access to the father. They didn't tell the state court any specific- They didn't- they asked- The only specific question they asked, and this was a finding by the district court, was which exact passage was given to the juror. I think given the fact that we're trying to overturn a jury verdict, what is reasonable is more than what they did in this particular case. Let me ask you this. First of all, I think Judge Shed very skillfully pulled you back from the ledge. But as I understand it, let's just assume that the language of Rimmers met. That there was a- it's is a criminal case. It was a private communication. It was with the juror during a trial. And it was about a member, about a matter of pending before the jury. Let's just assume that and stop. We won't continue that other argument. But we've said in this court that that's not the end of the inquiry. Because the decision has to be made first of all as to whether or not that the contact was innocuous or not. And if it's a innocuous, that's the end of it. You don't presume prejudice. You don't need a hearing. You don't need to go any further. If it's more than an innocuous, then of course the opposite occurs. And the- Marjouge seems to have adopted our reasoning in that regard by citing our cases with a particular regard to those cases involving consultation of the Bible. So I don't understand why you want to argue about whether it was a matter before the jury and deny that instead of taking the position that this is an innocuous communication. And that the bar court is simply making the same decision we've made. And then take your argument from there. I just don't understand why you want to disavow any relevance for Rimmer. Well, I think I'm basing that on the reading of the Bible cases and saying, you know, it's not an unreasonable thing to read, Rimmer, that way to say that the Bible doesn't involve the issue. But also I have argued. I think that the contact was innocuous. And as Judge Shed did with his questioning, you know, using her father as a neutral index, that's what we have here. And so I think that that is a reasonable way to look at this. I think there are several reasonable ways to look at this. And well, if the communication between the father and the daughter involved the daughter's relation of the facts that moved her to conclude that the death penalty was an issue, he said they took the man out to a field and shot him the back of the head. And the father said directed him to the passage. We'd have a serious problem, wouldn't we? Yes, Your Honor. That would be a constitutional violation because that's about the subject matter before the jury. The father knows about the facts of the case and is. And he makes a recommendation. Yes, sir. I think Judge Traxler's positing of Rimmer is probably where Rimmer is. It does say about the case and there is a question whether it's about the case, what they meant when they said that. If it's just and I was trying during my questioning of your colleague was suggesting that if you inquire about the moral basis for decision making as opposed to the decision on the evidence that that may not be about the case. It may be about my moral compass as whether I can make the decision. And I would have thought that that moral decision should have been uncovered during voidier rather than during this phase. But that all said when I read her statement, it looks to me like she would have qualified as a juror could have qualified as a juror. But now was facing the emotional as she said, very emotional decision of whether I can impose the death penalty. She clearly states that she thought the evidence supported the death penalty. And then she said after the trial juror Kim Anderson shared with me how she had been struggling and having a hard time with choosing the death penalty. And so they both looked like they were the evidence indicated death penalty but they needed the ability morally to do it. My question would be as a matter of constitutional law in facilitating that moral ability to make the decision. Is that about the case and does that fall under remor or is that something extraneous as part of the makeup of the people and is not an improper influence? I'm pronouncing a time I answer your question. It is not an improper influence. In the reading of the cases, the uncertainty tells us, the uncertainty that you have expressed tells us that this was not an unreasonable application under the habeas standard to say why you said you're not sure whether remor could be read that way. I remember it could be read to include the moral decision. Well, let me go just one step further. She says to the father, she says he probably should get the death. He probably should get the death penalty. Doesn't relate the evidence but this man should probably get the death penalty. I'm having a lot of trouble and I don't think I can impose it unless the Bible tells me I can. The father says there's a place in the Bible that tells you you can and I for an eye. She now feels better and she imposes the death penalty. Is that an improper influence? That is not an improper influence. I think you're getting closer. I think you're getting a little bit closer. But like Robinson, this court said in Robinson, that line is just really unclear. Your Supreme Court case law is unclear where that line is. And for that reason, the state court decision here was not an unreasonable application. Let me say this. This takes you to the notice of the fact that I hate to turn down a compliment from another judge. But I'll say this, the reason that I asked those questions, because I have some of those same questions. And honestly, your response to Judge Trash's question didn't really sit right with me. He seemed like it was a reasonable question. Was it about that? And I noted that I think the record is actually lacks some information that could be in the record of somebody had been more diligent perhaps that we would know. You could have, the father could have been asked further about it and those kind of things. But it just, I thought you quite frankly, I don't mean this to be offensive to you. You were slicing it like a lawyer. You were looking at the law and slicing it. But in the general context, those answers just didn't really seem to bring true a ring responsive to Judge Trash's question. That's why I was saying those case, they are hard. They are hard. And that's why it seems to me that perhaps the deciding factor comes down to our standard of review. It's not what we say in the first instance, but whether or not it's unreasonable for the court to have decided in these facts what they decided. Yes, and I'm sorry, Your Honor. I didn't, didn't mean to not answer the question. No, I thought you were answering. You were just slicing it very, very thin. And it's slicing it thin. It just, I thought, I think it was responsive, but it's sort of in a general sense. It just sort of felt to me like it was an odd response. That's why. Just for note. Thank you, Your Honor. Thank you, Ms. Hollis. Mr. Hale, you have for a fly time. Regarding the issue of innocuousness, the, to understand the case law referring to innocuousness, the innocuousness described it as a minimal standard that seeks to determine whether there is any reasonable reason to be. The reasonable possibility that the jurors verdict could have been influenced by the conversation. And based on this court's prior decision in, in full with versus Lee, where there are allegations of improper jury conduct, which if prove might be true, a hearing is what the remedy is, is that is required. And this court can find a violation of 2254D based solely on the failure to grant a hearing because the hearing is what is, is, is what Smith requires. That's a separate issue, then, the ruling on the record here. The, the issue now is if the state court record is inadequate, should we allow it to be expanded in the federal court? And I think the relationship between the state judicial system and the federal judicial system as articulated in 2254 and by the Supreme Court, and they get tougher and tougher every year, they would like, I think, to not even have the federal courts involved in state proceedings and have them be the direct review, except the course the great writ is applicable to any judge. So the, the more recent opinions as you follow the trend in habeas, they really wanted to for and in this case they say we're going to review whether a state court was unreasonable in the application of law based on the record before the state court. Exactly. And the, the state court was unreasonable because it failed to grant a hearing on the basis of evidence, which was reasonably likely to have prejudice to juror. And, and that's why this court, this court doesn't need, we don't need any of this. What about the questions of diligence? What about the question of diligence and pursuing that? We hired an investigator to go into this much. It is a fair for the district court to look at the question of diligence. Absolutely. Absolutely. And, and we would, I would argue to the court that we were diligent. We had an affidavit from the juror herself. It was corroborated by her father. Those affidavits established a violation of remor. And, because they established an outside communication with a third party about the matter pending before the jury. That alone should have triggered a hearing so that we, so that the state court could determine what the effect of that conversation was. You think of Google, you think a Google search would not have been that would not qualify as being improper. No, you're on, I don't know. Do you think that's because it didn't present the same issue or the courts haven't called up with what internet is? I believe it doesn't present the same issue. Why is that? Because you think the father has some influence. I think the father had some influence and I think that's exactly what he told her matters to the... No, no, no, no, we don't know, but we don't know what she would have found on an internet search. I'm asking you, what is it about? What is it about the internet search that's okay, but talking to her father that it didn't? I'm not arguing with him, I'm asking you. Well, because the father is somebody she obviously respected. She ate with them all the time through the trial. I stopped for a second. If she'd had a conversation with a third party that wasn't her father and wasn't particularly close to her, that would be more like an internet search in your mind. I think that it would go to the issue of whether there was... So I'm just saying, would that be more like talking to her father or more talking to an internet? I think it'd be more like talking to the father. I don't think she's been talking to anybody about her life or death decision. But that, but we don't internet. She's in essence getting information. All that talking is just getting information. Well, if she was talking in a chat room to somebody, I believe it'd be a lot more like her father, but if she's just searching on her own and looking for places that would reference to her in a truly neutral fashion, where to look in the Bible... I just want to talk to someone. I just want to take you back to them a very question of what the linchpin of your argument is. If she did an internet search, which you say is okay, and all she asked was, and there's something in the Bible for an eye for an eye, you think that would be okay. I think that would be... that would not be a violation of remor. Okay. But if she just went to somebody on the street, she would think, excuse me, if there's something in the Bible about an eye for an eye, you think that would be okay or not okay? I think that when she has conversations with the third party about the subject matter of the case, it triggers a presumption of prejudicial impudence. You just think it's... What the state should have to prove... No, no, no. It was not prejudiced. No, no, no, no, no, wait a second. So then you don't think that the fact that he's her father is necessary. You think it's helpful. I think it helps get over the threshold of what is innocuous or not. I think it makes it more likely that there's a reasonable possibility of influencing her, that triggers the need for an inquiry and for this court to order their hearing be held so that there can be an examination of what the prejudicial effect was. Thank you, Mr. Hill. I appreciate your argument. And I note your court appointment. We appreciate very much for undertaking representation of this plan. Thank you very much, sir. We'll come down in Greek Council and then go into our next case. Thank you