Legal Case Summary

Mr. Woodenhouse. May I please the court, I'm Gordon Wydenhouse and along with George Curran, represent William Barnes and his appeal to this court. We ask this court to reverse the district court's determination that the state court's adjudication of the issue in this case regarding an external communication with the sitting juror was not an unreasonable application of subtle federal law. There are three settled rules pursuant to the United States Supreme Court decisions as this court has articulated in forward versus Lee that deal with the issue in this case. First, an external communication with the sitting juror is absolutely prohibited. Second, an external communication with the juror is presumptively prejudicial. And third, an external communication with the sitting juror when that issue arises should be resolved by an evidentiary hearing. In this case, none of those rules were followed. We know there was an external communication with the sitting juror. We know that that is considered presumptively prejudicial and Mr. Barnes was never accorded that presumption of prejudice by the state courts in this case. And we know that an external communication ought to be resolved by- That's not have to be with regard to an issue that's before the jury for it to be presumptively prejudicial. No, it simply has to deal with the case itself. The case itself in any respect? Yes. As long- and of course you can make a determination after you figure out what the communication is about the potential effect of the communication. But it doesn't have to deal with a specific issue for example, an element of the crime. As long as there is the external communication with the juror and has something to do with the case, then the presumption of prejudice attaches. Well, let's know what Remer says. Remer says it's about the matter pending before the jury

. It's about the case. Correct. It's about the case itself. The case itself. The two aren't necessarily synonymous. Well, so what do you say was the matter pending before the jury? At the very least it was the appropriate sentence to be imposed. I mean, we know that the guilt had been determined and the communication occurred during the state court's synancing hearing, which is a jury determination in North Carolina. And so it had to do with the sentence that was to be imposed. And tell us how what your basis is to say that the communication based on what was before the state MRA court. What was the communication that was made before the jury and how does that relate to the matter before the jury? The communication with the juror was a discussion that she had with her pastor. So we know that's the talking that went on. That's the external communication. We know that she contacted her pastor because at least one of the jurors was hesitant about returning a death sentence in the case. Now, what do you say that was the reason she contacted her pastor? Because the affidavits in the case and their statements in the case indicate that one of the jurors was concerned or hesitant about imposing the death sentence. And that the affidavits say that's why the jurors, who I think was misoptions, I think that's probably wrong about that. Yes, I believe it does. I believe the affidavit of Artif Peacock, which is, and she was one of the jurors in the case, and so on page 1900 of the joint appendix. Her affidavit, I believe indicates that Holly Jordan made the contact with her pastor because there was a concern about a closing argument that was made by one of the lawyers for the co-defendant, Frank Chambers. And it was that concern

. The affidavit says to rebut what Chambers attorney had said, one of the jurors brought a Bible into the jury room during the Liberations and read it and read from it to the jurors. I don't recall which juror brought the Bible, I'll call the exact verse. So let me tell you something that I hope council will address because the government didn't really correctly go out this and maybe that's because there wasn't an objection or trial. But as I read the closing argument, what the defense council told the jury was, and you disagree with this characterization, you tell us. Defense council said, and basically these words, the trial court will instruct you on what North Carolina tells you is your duty as a juror. And what the sensing range is in this case, you're going to apply the factors and choose within that sensing range what you deemed to be the appropriate sense. And defense council's opposing closing argument, unobjected to whatever reason said, well, you the juror can nullify the trial court's instruction and ignore the sensing range is higher end upon pain of eternal damnation. That's basically the argument the closing attorney may. So as I read the affidavits, the communication seems to be about whether or not the jurors are subject to eternal damnation if they follow the closing argument. But I'm not seeing anything in the affidavits that addresses the issue of what the jury is to decide. Well, I guess my response to that is I don't think it has to be specifically a communication specifically about what the jury has to decide. Although I would say that the real question is, was there enough of a showing that there was an external communication about the case that would require not only the presumption of prejudice, but at least an evidentiary hearing to fair it out precisely what was said and what impact it might have had. I mean, we don't have to make 100% of the showing in the affidavits and statements. We have to make enough of a showing as this court said and forward for there to be a serious question about the fundamental fairness given the external contact. And at that point, there should be an evidentiary hearing to excuse my sort of colloquial statement get to the bottom of the matter which didn't happen here. We don't know precisely what Holly Jordan asked her pastor. We don't know precisely what her pastor told her and we don't know what Holly Jordan then went into the jury room and related. And we need to know that this court needs to know that the state court of the district court needed to know that in order to resolve the troubling question as this court's language and forward indicated was given rise by the situation. That said, it seems to me that if what is going on I mean the ultimate question in the sentencing base of a capital case is what are we going to do? Are we going to give the to give the defendant life? We're going to give the defendant death and the closing argument of the co-defense lawyer according to the affidavits troubled the jury considerably

. And Holly Jordan because she or others were troubled went to talk to her pastor about it got some spiritual guidance of some sort and then brought it back to the jury room. You know Mr Barnes is entitled to confront the evidence against him. I mean that's what's really going on in a what I call a jury misconduct case or an external communication case. I get to confront that evidence and I get 12 jaws not 13 and that didn't happen here or at least there's enough of a spectre it didn't happen. And it's does it make that you're here on habeas review at the stand as opposed to a standard if we were here on direct appeal. The the difference is there is some difference according to the state court determination under and once you move into habeas I certainly acknowledge that but the question in habeas review is for the district court and for this court and it's denoted. The other review of the court determination is was the state court's determination. An unreasonable application of subtle federal law and as I tried to indicate at the beginning of the argument I think the subtle federal law is you cannot have third part of communications with the jury. About the case and from all indications that's what was going on here she didn't call her pastor because they didn't have enough water in the jury. She called her pastor because they were troubled about what sentence to impose apparently because of the closing argument of the code of fitness council. So it's about the case and it's about what the jury is supposed to do at the end of the sentencing deliberations. So you have an unreasonable application of subtle federal law because there was a failure on the part of the disc of the state post conviction court to recognize the serious nature of the external communication. There was a failure of the state post conviction court to a court Mr. Barnes the presumption of prejudice that forward says under us Supreme Court law arises when you have an external communication. If we assume for purposes of argument you're correct on that. Under Edma there's a separate showing of prejudice. Whose burden is it to show that it would be it would be the petitioners burden to show the absence of substantial and injurious effect after an evidentiary hearing. So we know what we are dealing with in terms of measuring the prejudice. I don't have to show that now

. No I don't I don't think I do have to show it yet. And that's what you're asking for an evidentiary hearing to have the opportunity to show a substantial and injurious effect. Is that what you're asking? Well that's that I'm at least asking for that in all candor with the court. I think the court could reverse and direct that district court to grant habeas for this reason. The respondent has had the opportunity in state post conviction and federal court to come forward with something and they haven't done that. I mean this issue has been front and center throughout this litigation. There's not a scrap of anything brought forward by the respondent. If the shoe on the other foot and I was in this court and had failed to come you know to develop something that it was my responsibility to develop. I'd be held to a procedural default. So I think the court could grant to direct district court to grant habeas and order new sentencing here. But at the very least we'd be satisfied with the reman for an evidentiary hearing because we ought to have the opportunity as forward explains to get to the bottom of what the misconduct was. What the discussions were. What the jury heard after that external communication to be able to determine whether there was prejudice or not. So certainly at the very least we would ask for an evidentiary hearing. I mean again I think what this court needs to look at is a very small part of this record. But we do have a statement from the juror in question. Holly Jordan which is on page 1898 of the joint appendix. We have an affidavit from the private investigator who talked to Ms. Jordan who talked to the pastor Reverend Lomax who talked to three other jurors

. His habit aficism the record page 1892 and 93 of the joint appendix. When I have a david from sitting jorpecock. So on page 1900 of the joint appendix. And an affidavit from one of the lawyers who was not representing Mr. Barnes but was helping with the investigation in post-conviction. And she interviewed Ms. Jordan, Reverend Lomax and at least two or three other jurors. So there's significant evidence in a very small part of the record in this case that indicates there was an external communication. And there was no presumption of prejudice. If you read the state post-conviction courts. A dedication of this issue which is about one paragraph long. And it is is in the joint appendix on pages 1882, 1883. One paragraph acknowledging that this evidence was out there and saying well the defendant loses. And no indication that there was a presumption of prejudice courted and no evidentiary hearing conducts. I say there's no evidentiary hearing. The evidence that that hearing is we were concerned that based on the closing arguments of the fence council that we followed the instructions of the trial court. We would be damn for all eternity. That was the entirety of the evidence. Did you get relief at that point? No, because that would not be evidence of an external contact

. We have that. They had contact with the pastor on whether or not if they followed the court's instructions. They would be damn for all eternity. Well, I have an external contact. Now you know the substance of the external contact. I think if the external contact is I talked to my pastor and he said we didn't have to worry about the co-defendant's closing argument. We would be able to show prejudice because there would be an impact. That's not the question I ask you. The question I ask you was if the evidence revealed that the summon substance of the extraneous contact was that the jurors would not be damned if they followed the trial court's instructions to consider the sentencing range. Would that be prejudicial? I think it potentially would. But we would need to know if that was all that was said, which is hard to me believe that would be all that was said in this communication. And we would need to know what Holly Jordan's interpretation, what words she used to relate that to the jurors. And I think we would need to know sort of what the other jurors' understanding of that communication was. To be able to really determine whether there was some sort of prejudicial effect. But again, you know under Rimmer, once we come forward with that, the burdens on the other side to overcome the presumption of prejudice. And that's what's never happened here is Mr. Barnes accorded the presumption of prejudice that Rimmer says we're entitled to and forward says we're entitled to. And once you have that, I mean again, if you look at forward, it's not a huge degree of difference between the substance of the communication here and at least the specter of what the communication was in this case, although we don't know. And forward said, well, it's troubling enough that there needs to be an evidentiary hearing

. And that didn't occur here and at the very least we'd ask this court to reverse the district court and direct that an evidentiary hearing may help. I'd like you to have time at Rebuttal and will now hear from Mr. Bab. Mr. Bab, I want you to tell us why this petitioner isn't entitled to a hearing. Yes, sir, you're on. Yes, sir, you're on. Good morning. Under Columbia Pinholster, if there is no, in the situation Pinholster was in, there was no hearing. And the question the Supreme Court said was, under these circumstances Pinholster can satisfy the unreasonable application of 2254D1 only by showing there was no reasonable basis for the California Supreme Court's decision. And I think the question is determined was the North Carolina State Postconviction Court reasonable in its application, in its determination of the law? Was it an unreasonable application of Rimmer, which I believe is a point here? There's one thing I would like to respond to your honor. You said, well, pointing out the inappropriateness of the argument, it was not objective to. It was objective to, now it made it, it wasn't objective to when you really got going, but it was objective to at the beginning where you started talking about surely among one of you. There's a true believer, Mr. Kennerley, the district attorney objected, excuse me, and that's on page 1530, the joint appendix. It was overruled, and then it was off to the races. Now, I think I've never asked, you know, Bill Kennerley, why he didn't object, it wasn't an issue, obviously, further. But I think there isn't, you know, indication from the actual information before this court, the jurors didn't like the argument. I don't believe the characterization that the jurors had trouble imposing the death penalty is supported by the unsworn statements, the juror affidavit, the investigator affidavit, or the interviews

. What we do know from that evidence, I'm going to rub you for some minutes. Yes, sir. I was going to ask a opposing counsel this question, if you answered on the rebuttal, if you disagree with me. It wasn't clear from the record if the, I think there are four affidavits that are in our record that were before the magistrate and the district court. Were those the affidavit, were all of those before the state, M-A-R court, was at the evidence there? Yes, sir. I believe, and I think that's shown by the affidavits, the way they're in the joint appendix is as exhibits to the motion for appropriately the state court. But I believe that they were all before the state court, and I would be surprised if the answer was different from counsel. What evidence did the government, in the state, offer to refute those affidavits at M-A-R? No evidence, be your honor. And none was needed, because of the questions, well the basis behind the questions by Judge Agi and Thacker earlier, it wasn't a matter before the jury. But just to expand on that a little bit, there wasn't evidentiary hearing in the case. Well, the matter before the jury was whether or not to impose the death penalty, and that's what the extraneous communications were about. And that doesn't, those communications go specifically to the heart of what the jury was there trying to do. No, ma'am, I don't agree with that. Yes, the ultimate, I don't know if you want to precise. Yes, the ultimate question is whether to impose the death penalty. I think it's just court has said about the applying of aggravators and mitigators, what the jury is doing. The argument that bothered the jurors made the matter, whatever house, characterizing the information, was the eternal damnation salvation that Judge Agi has talked about earlier. And there is information in the affidavit that at least one juror, Juror Weddington recalled that a juror read a passage from the Bible to another juror who was having a hard time with the death penalty. And the passage that was read, again we're putting it together, because

... Because you don't know the passage that was read to you. Well, and we don't know exact scripture, but we know the general thrust of it. It was a passage of Echrishans duty to follow the laws of the state. Now what we do know is that Ms. Jordan did contact Reverend Lomax. She did read a passage to the jury as you are just said. Reverend Lomax, who was interviewed by defense investigator, does not remember ever talking to her. I surely could have, but I don't remember it. Ms. Jordan doesn't remember the exact passage, but she says it was on Echrishans duty to follow the law. And she said in her unsworn statement that she knew the passage from church. But the passage in question, Echrishans duty to follow the law, that would again relate to the improper jury argument about salvation or damnation, which I don't believe is before the jury. In determining whether these three defendants receive the death penalty or not. The argument that if you don't vote the way I want you to, you risk your soul, is not proper. And this communication with Reverend Lomax, the passage is not one that says an eye for an eye, which is core to spound not to be in and of itself objectionable in other situations. But it wasn't calling for mercy or severity. It was saying follow the law

. And the law was either give life or death. Now, the state, M.A.R. court did not have an evidentiary hearing on this claim. That evidentiary hearing on other claims. There were over 20 claims. Let me ask you about that. If I can, it would appear that the state, M.A.R. court, may have factual error. And that, if I'm recalling that, it's opinion correctly. It said there was no new evidence from what had appeared before the North Carolina Supreme Court in the direct appeal. But I'm thinking that that was incorrect because the affidavits that we have here were not before the North Carolina Supreme Court at the time. Is that correct? Yes and no, Your Honor. They weren't before the Supreme Court. But the M.A.R. court didn't say there is no new evidence. The M.A.R. court in its ruling said the allegedly new evidence adds nothing to the issue as it was presented during the Fendant's initial appeal. And the allegations are subject to the same analysis inherent in that decision. We determined that that was factually incorrect. The affidavits contained some new information that was not on the direct appeal trial record. What difference does that make? Well, Your Honor, I'm not trying to be a question, but he doesn't say it's not new evidence. He says it adds nothing to the issue. Right. But if these affidavits, maybe that's the answer, but I mean the affidavits appear to be more expansive than the dialogue that occurred before the trial court in the trial. Well, they are more expansive, but the state court was absolutely correct that they didn't add anything because what was before the question the trial judge asked was, is there any evidence that they did discuss the facts of this case or particular facts of this case? And the answer was there's no evidence they did or did not, but no evidence they did. No, no, no, no evidence they did. There was nothing that was added to the, with that would give you that matter before the jury language this enrimmered. And Rimmer does say, you know, as the court pointed out that it has to be a matter pending before the jury. And assume that we find that it was a matter pending before the jury. In Rimmer, the court also ordered a hearing because it did not know from the record, nor did the petitioner know what actually transpired or whether the incidents that may have occurred were harmful or harmless

.R. court didn't say there is no new evidence. The M.A.R. court in its ruling said the allegedly new evidence adds nothing to the issue as it was presented during the Fendant's initial appeal. And the allegations are subject to the same analysis inherent in that decision. We determined that that was factually incorrect. The affidavits contained some new information that was not on the direct appeal trial record. What difference does that make? Well, Your Honor, I'm not trying to be a question, but he doesn't say it's not new evidence. He says it adds nothing to the issue. Right. But if these affidavits, maybe that's the answer, but I mean the affidavits appear to be more expansive than the dialogue that occurred before the trial court in the trial. Well, they are more expansive, but the state court was absolutely correct that they didn't add anything because what was before the question the trial judge asked was, is there any evidence that they did discuss the facts of this case or particular facts of this case? And the answer was there's no evidence they did or did not, but no evidence they did. No, no, no, no evidence they did. There was nothing that was added to the, with that would give you that matter before the jury language this enrimmered. And Rimmer does say, you know, as the court pointed out that it has to be a matter pending before the jury. And assume that we find that it was a matter pending before the jury. In Rimmer, the court also ordered a hearing because it did not know from the record, nor did the petitioner know what actually transpired or whether the incidents that may have occurred were harmful or harmless. Isn't that the exact situation we have here, assuming we find that this was a matter before the jury? No, ma'am. And why not? Because the question isn't whether you find that it wasn't a matter before the jury. The question is whether you find that it was an unreasonable determination that it was not before the jury. And that simply is, I just can't see that. And we find that it was an unreasonable determination that it was not before the jury. Or if you find it's unreasonable, then petitioner, if you find an unreasonable application, then you get to do enough a review if there's break there as well. But I just can't, well, I would submit that there's, it's not a, it would be very unreasonable. I mean, it would not, it cannot be unreasonable application of Rimmer, where the matter's not even before the jury in the first place. And also, how can you say that? The death penalty is before the jury. And that's what they're talking about. No, actually, what the, yes or your honor, the death penalty was before the jury, but what the argument was talking about was, you're going to lose your eternal salvation or be damned for eternity if you don't vote my way. That isn't an aggravator or a mitigator. And that's not properly before the jury. So if the, because the jury didn't, the one thing has been characterized and the district court points us out in a, in its excellent order, the, the, the, the brevren was not a second or third prosecutor, whatever he's referred to in position brief, he wasn't a 13th jury. There's no evidence at all that he advocated for life or death. The passage in question. That's point there, because there wasn't a hearing. But you're on. And out actually what went on, but they talked to the, the reverent and he said he didn't recall

. Isn't that the exact situation we have here, assuming we find that this was a matter before the jury? No, ma'am. And why not? Because the question isn't whether you find that it wasn't a matter before the jury. The question is whether you find that it was an unreasonable determination that it was not before the jury. And that simply is, I just can't see that. And we find that it was an unreasonable determination that it was not before the jury. Or if you find it's unreasonable, then petitioner, if you find an unreasonable application, then you get to do enough a review if there's break there as well. But I just can't, well, I would submit that there's, it's not a, it would be very unreasonable. I mean, it would not, it cannot be unreasonable application of Rimmer, where the matter's not even before the jury in the first place. And also, how can you say that? The death penalty is before the jury. And that's what they're talking about. No, actually, what the, yes or your honor, the death penalty was before the jury, but what the argument was talking about was, you're going to lose your eternal salvation or be damned for eternity if you don't vote my way. That isn't an aggravator or a mitigator. And that's not properly before the jury. So if the, because the jury didn't, the one thing has been characterized and the district court points us out in a, in its excellent order, the, the, the, the brevren was not a second or third prosecutor, whatever he's referred to in position brief, he wasn't a 13th jury. There's no evidence at all that he advocated for life or death. The passage in question. That's point there, because there wasn't a hearing. But you're on. And out actually what went on, but they talked to the, the reverent and he said he didn't recall. Well, you know, I don't know what that factual issue that Judge A. G. raised is pretty significant for this reason. The Supreme Court used language that it was just a mere unsubstantiated, unsubstantiated allegation. That's a finding by the Supreme Court. Yes, but this course reviewing the state post-cubition, which found to be without merit. I understand that. Oh, yes, I understand that. But the M.A.R. court essentially did the same thing. Well, but regardless of what the M.A.R. court did or said and didn't mention rimers specifically, this court would have to find looking at the result of the M.A.R. court that it was an unreasonable application of rimmer to find that the jury's eternal salvation was not a matter before the jury

. Well, you know, I don't know what that factual issue that Judge A. G. raised is pretty significant for this reason. The Supreme Court used language that it was just a mere unsubstantiated, unsubstantiated allegation. That's a finding by the Supreme Court. Yes, but this course reviewing the state post-cubition, which found to be without merit. I understand that. Oh, yes, I understand that. But the M.A.R. court essentially did the same thing. Well, but regardless of what the M.A.R. court did or said and didn't mention rimers specifically, this court would have to find looking at the result of the M.A.R. court that it was an unreasonable application of rimmer to find that the jury's eternal salvation was not a matter before the jury. And I just don't think that's possible. Also, rimmer, if you look at rimmer, yes, there wasn't a hearing, but rimmer was a third party contenting a jury about a bribe. The FBI investigated the case during the trial and they never told defendant about it. And also, I just have to say on the full wood, counsel argued that full wood is not a huge degree of difference with here. But in full wood, one juror was influenced by her husband who kept telling her to vote for death. And also, the jury was aware full wood had always been already been sentenced to death and it was reversed on a technicality. That's the first off, it's not a US Supreme Court case that wouldn't be till they established law, but it's nowhere near similar to the facts we have here. Well, if we assume there was a finding here of unreasonable application, clearly it was to have a Supreme Court law. So, assume for purpose of our under-advice, is that the end of it? Or is there anything further that the petitioner needed to shut? The petitioner would also need to show your honor, I believe, as you questioned earlier, a substantial and injurious effect on the verdict. And even if we were looking at that, I'm in no way conceding that this was unreasonable application law because I just can't see how it could possibly be. But if we're just looking at an injurious effect, the verse in question is, a Christian's duty to follow the laws of the state. It doesn't say anything about punishment or mercy. It doesn't go to a mitigator aggravator. It's talking about the jurors, not talking about the defendant. That is not a showing of a substantial injurious effect on a verdict. Now, the State Posting Convention Court decided this claim on the merits. Well, if we were here on direct appeal, would the issue be different? If we were here on direct appeal, and we didn't have these unsworn statements, or- maybe how about this? We're here in Epidet and apply. And I'm not trying to be flippant. Again, I just don't see how there's any injury to defend it because for defendant to prevail and say there is this matters before the jury

. And I just don't think that's possible. Also, rimmer, if you look at rimmer, yes, there wasn't a hearing, but rimmer was a third party contenting a jury about a bribe. The FBI investigated the case during the trial and they never told defendant about it. And also, I just have to say on the full wood, counsel argued that full wood is not a huge degree of difference with here. But in full wood, one juror was influenced by her husband who kept telling her to vote for death. And also, the jury was aware full wood had always been already been sentenced to death and it was reversed on a technicality. That's the first off, it's not a US Supreme Court case that wouldn't be till they established law, but it's nowhere near similar to the facts we have here. Well, if we assume there was a finding here of unreasonable application, clearly it was to have a Supreme Court law. So, assume for purpose of our under-advice, is that the end of it? Or is there anything further that the petitioner needed to shut? The petitioner would also need to show your honor, I believe, as you questioned earlier, a substantial and injurious effect on the verdict. And even if we were looking at that, I'm in no way conceding that this was unreasonable application law because I just can't see how it could possibly be. But if we're just looking at an injurious effect, the verse in question is, a Christian's duty to follow the laws of the state. It doesn't say anything about punishment or mercy. It doesn't go to a mitigator aggravator. It's talking about the jurors, not talking about the defendant. That is not a showing of a substantial injurious effect on a verdict. Now, the State Posting Convention Court decided this claim on the merits. Well, if we were here on direct appeal, would the issue be different? If we were here on direct appeal, and we didn't have these unsworn statements, or- maybe how about this? We're here in Epidet and apply. And I'm not trying to be flippant. Again, I just don't see how there's any injury to defend it because for defendant to prevail and say there is this matters before the jury. It's a equivalent of- it is the functional equivalent of saying, I get the benefit of this improper argument of telling the jury they're going to lose their salvation if they don't vote my way. And then if anyone reacts to that and looks at the Bible, calls a preacher about that particular- that's just not part of what's going on in the jury's termination of that person, these defendants, these three defendants, two of which got the death penalty one to not- these three defendants, whether they get life or death. The jury decided that two of them, the most culpable, which this defendant was one off, received death and the third received life. But their salvation was not a matter before them. And there's no- I do not believe that- Where is it in the record that Ms. Jordan said that the passage was about following the laws of the state? It is in the unsworn statement that defendant submitted its own 1898 of the Joint Appendix- I apologize- and she says- she read a unspecified passage from the Bible stating it's the duty of Christians to abide by the laws of the state. Now, some of the other affidavits refer to a Bible but they don't passage, but they don't refer to a specific passage. And the one affidavit from a juror does not say anything about being hesitant to impose the death penalty. It says that the argument made the jury furious, which simply enough would might be why the District Attorney didn't object to it after the first- Did you or Weddington say that one of the jurors was having a hard time with the death penalty? Well, I- that is written down- yes, ma'am. I guess what I'm trying to say is the only affidavit from a juror. There is- These juror interview notes that are unsworn and unsigned from- But in terms of the only affidavit- And never about it. Yes, unrebutted. And again, the state, you know, the argument that if- The state has to come forward and present something just turns this whole process on its head. That's not the case. The state came forward. Doesn't come forward unless the defendant meets their burden. And in this situation, again, Rimmer just can't apply because it's not a matter before the jury. And even if this court were to somehow disagree with that, it would not be enough for relief. You'd have to find it to be an unreasonable application for the state court to not apply a presumption

. It's a equivalent of- it is the functional equivalent of saying, I get the benefit of this improper argument of telling the jury they're going to lose their salvation if they don't vote my way. And then if anyone reacts to that and looks at the Bible, calls a preacher about that particular- that's just not part of what's going on in the jury's termination of that person, these defendants, these three defendants, two of which got the death penalty one to not- these three defendants, whether they get life or death. The jury decided that two of them, the most culpable, which this defendant was one off, received death and the third received life. But their salvation was not a matter before them. And there's no- I do not believe that- Where is it in the record that Ms. Jordan said that the passage was about following the laws of the state? It is in the unsworn statement that defendant submitted its own 1898 of the Joint Appendix- I apologize- and she says- she read a unspecified passage from the Bible stating it's the duty of Christians to abide by the laws of the state. Now, some of the other affidavits refer to a Bible but they don't passage, but they don't refer to a specific passage. And the one affidavit from a juror does not say anything about being hesitant to impose the death penalty. It says that the argument made the jury furious, which simply enough would might be why the District Attorney didn't object to it after the first- Did you or Weddington say that one of the jurors was having a hard time with the death penalty? Well, I- that is written down- yes, ma'am. I guess what I'm trying to say is the only affidavit from a juror. There is- These juror interview notes that are unsworn and unsigned from- But in terms of the only affidavit- And never about it. Yes, unrebutted. And again, the state, you know, the argument that if- The state has to come forward and present something just turns this whole process on its head. That's not the case. The state came forward. Doesn't come forward unless the defendant meets their burden. And in this situation, again, Rimmer just can't apply because it's not a matter before the jury. And even if this court were to somehow disagree with that, it would not be enough for relief. You'd have to find it to be an unreasonable application for the state court to not apply a presumption. And that- and based on the other cases, especially where, you know, under Edpa, as the Supreme Court said in Carey V. Muslim, where there's a lack of cases specifically addressing a ground for relief, it cannot be said the state unreasonably applied to fully established federal law. This- this is- there are other juror communication cases. Smithfield, of Parker V. Gladden, Maddox, of the U.S. Rimmer, of U.S. From the Supreme Court. But none involve a- I'm not sure, because one of the other jurors wanted to impose the death penalty. And the juror who called her pastor did not. And the- and the passage that they read to the juror was, they'll shout not kill. Would the state feel the same way? That that's not a matter before the jury? Well, the state wouldn't have any recourse, because if the state laws were stuck, that's- that's not a level plan code. But in terms of just the academic answer to that question, is that- that verse would be different except for the fact that this court's already said that an eye for an eye. I mean, who doesn't know Thal Shunai killed the tin commandments in Rohingya County, North Carolina? I think that would be internal eye. And this court's found the same. The state might not like it if a juror decides that they can't apply the death penalty. And maybe they didn't question them enough and board deer, but none of this- I don't think that would add to the argument for this court here. I'm sorry, to answer that question, Your Honor

. And that- and based on the other cases, especially where, you know, under Edpa, as the Supreme Court said in Carey V. Muslim, where there's a lack of cases specifically addressing a ground for relief, it cannot be said the state unreasonably applied to fully established federal law. This- this is- there are other juror communication cases. Smithfield, of Parker V. Gladden, Maddox, of the U.S. Rimmer, of U.S. From the Supreme Court. But none involve a- I'm not sure, because one of the other jurors wanted to impose the death penalty. And the juror who called her pastor did not. And the- and the passage that they read to the juror was, they'll shout not kill. Would the state feel the same way? That that's not a matter before the jury? Well, the state wouldn't have any recourse, because if the state laws were stuck, that's- that's not a level plan code. But in terms of just the academic answer to that question, is that- that verse would be different except for the fact that this court's already said that an eye for an eye. I mean, who doesn't know Thal Shunai killed the tin commandments in Rohingya County, North Carolina? I think that would be internal eye. And this court's found the same. The state might not like it if a juror decides that they can't apply the death penalty. And maybe they didn't question them enough and board deer, but none of this- I don't think that would add to the argument for this court here. I'm sorry, to answer that question, Your Honor. I ran with a little bit. I apologize. One second, Your Honor. I also want to just briefly say that- just follow up on the carry reference, the Nevada reference. The cases, if you look at the Supreme Court cases, I just mentioned- none of them are close to what we have here. Even in the very old one from 1892, the bailiff told the jurors- this is the third murder he's done. Park of you glad. That's a wicked fellow. And by the way, if y'all making mistakes, the state Supreme Court will fix it, don't worry. But then Smithy Phillips, the juror applied for a job with the DA, it wasn't disclosed, to laugh for trial. They found no air. Of course, all those cases are pre-edbah, and none of that presumption applies in habeas. But just looking at the application, this court cannot find that there was an unreasonable application for the state's M.A.R. court to deny the defendant's claim. Thank you. Thank you very much, Mr. Bab

. I ran with a little bit. I apologize. One second, Your Honor. I also want to just briefly say that- just follow up on the carry reference, the Nevada reference. The cases, if you look at the Supreme Court cases, I just mentioned- none of them are close to what we have here. Even in the very old one from 1892, the bailiff told the jurors- this is the third murder he's done. Park of you glad. That's a wicked fellow. And by the way, if y'all making mistakes, the state Supreme Court will fix it, don't worry. But then Smithy Phillips, the juror applied for a job with the DA, it wasn't disclosed, to laugh for trial. They found no air. Of course, all those cases are pre-edbah, and none of that presumption applies in habeas. But just looking at the application, this court cannot find that there was an unreasonable application for the state's M.A.R. court to deny the defendant's claim. Thank you. Thank you very much, Mr. Bab. Mr. Woodenhouse, you've got some remaining time. Please, the court, just several points in the rebuttal. First with regard to the question about whether the affidavits that were presented to the district court were presented to the state court. Undoubtedly, there were. We did not include the various motions for appropriate relief and attachments in the joint appendix, but they're in the district court record, and we can get them for the court if the court needs it. But if you look at the district court opinion, particularly pages 2140 and 2141, and the long footnote 10 of the district court opinion, it indicates that it's relying on these affidavits that all have been presented to the state post-conviction court. And with regard to the affidavits, I think it's very important for the court to keep in mind that investigator Williams affidavit refers to Jorowettington. And says that Jorowettington specifically said that one of the other jurors was hesitant about returning the death sentence, and at that point, that was when the communication between Ms. Jordan and her pastor occurred. We, of course, don't know the precise four corners of that communication, which is why we need an evidentiary hearing. But there is no doubt that the record shows one of the jurors was hesitant about imposing it as sentence, and the closing argument was a part of that consideration, and that certainly is a matter that was before the sentencing jury. Secondly, with regard to Mr. Bab's suggestion that there was an objection at some point to this closing argument, that is a strange reading of this record. The place where the objection occurs is on page 1529 of the Joint Appendix. If we know what the improper, allegedly improper closing argument was about eternal damnation, that doesn't occur to page 1532 of the Joint Appendix. So you have three or four pages of closing argument from the objection that doesn't have anything to do with this argument to the place where the argument occurs where there is no objection. So clearly this is an unobjected to closing argument of the other co-defendants counsel to the extent that makes any difference. I honestly don't think that's an absolute thing

. Mr. Woodenhouse, you've got some remaining time. Please, the court, just several points in the rebuttal. First with regard to the question about whether the affidavits that were presented to the district court were presented to the state court. Undoubtedly, there were. We did not include the various motions for appropriate relief and attachments in the joint appendix, but they're in the district court record, and we can get them for the court if the court needs it. But if you look at the district court opinion, particularly pages 2140 and 2141, and the long footnote 10 of the district court opinion, it indicates that it's relying on these affidavits that all have been presented to the state post-conviction court. And with regard to the affidavits, I think it's very important for the court to keep in mind that investigator Williams affidavit refers to Jorowettington. And says that Jorowettington specifically said that one of the other jurors was hesitant about returning the death sentence, and at that point, that was when the communication between Ms. Jordan and her pastor occurred. We, of course, don't know the precise four corners of that communication, which is why we need an evidentiary hearing. But there is no doubt that the record shows one of the jurors was hesitant about imposing it as sentence, and the closing argument was a part of that consideration, and that certainly is a matter that was before the sentencing jury. Secondly, with regard to Mr. Bab's suggestion that there was an objection at some point to this closing argument, that is a strange reading of this record. The place where the objection occurs is on page 1529 of the Joint Appendix. If we know what the improper, allegedly improper closing argument was about eternal damnation, that doesn't occur to page 1532 of the Joint Appendix. So you have three or four pages of closing argument from the objection that doesn't have anything to do with this argument to the place where the argument occurs where there is no objection. So clearly this is an unobjected to closing argument of the other co-defendants counsel to the extent that makes any difference. I honestly don't think that's an absolute thing. I mean, it's in. I'm sorry. I said it's in. So whether it should have come in or not. And the third with regard to whether this is. What about the fact that it was that the affidavits do also show that it was the argument that the jurors were concerned with. The states point that that that was the matter that was before the jury. Because the argument is about what sentence should be imposed in the case that it sounds to me like the state is almost saying if it's a closing argument question, that's not before the sentencing jury. And that's essentially what the district court's fine arguments of counsel aren't aren't evidence. No, but they are matters before the jury. The jury considers everything they hear in the courtroom unless the trial court says strike that from the record and the jury is instructed to disregard. So this was clearly something before the jury. And finally, as my time is running out, I think the substantial and injurious effect we at least have here under four wood is the failure to be accorded the presumption of prejudice. And as forward said, when you have these troubling allegations, you have to have a hearing. Thank you very much, Mr. Wood.

Mr. Woodenhouse. May I please the court, I'm Gordon Wydenhouse and along with George Curran, represent William Barnes and his appeal to this court. We ask this court to reverse the district court's determination that the state court's adjudication of the issue in this case regarding an external communication with the sitting juror was not an unreasonable application of subtle federal law. There are three settled rules pursuant to the United States Supreme Court decisions as this court has articulated in forward versus Lee that deal with the issue in this case. First, an external communication with the sitting juror is absolutely prohibited. Second, an external communication with the juror is presumptively prejudicial. And third, an external communication with the sitting juror when that issue arises should be resolved by an evidentiary hearing. In this case, none of those rules were followed. We know there was an external communication with the sitting juror. We know that that is considered presumptively prejudicial and Mr. Barnes was never accorded that presumption of prejudice by the state courts in this case. And we know that an external communication ought to be resolved by- That's not have to be with regard to an issue that's before the jury for it to be presumptively prejudicial. No, it simply has to deal with the case itself. The case itself in any respect? Yes. As long- and of course you can make a determination after you figure out what the communication is about the potential effect of the communication. But it doesn't have to deal with a specific issue for example, an element of the crime. As long as there is the external communication with the juror and has something to do with the case, then the presumption of prejudice attaches. Well, let's know what Remer says. Remer says it's about the matter pending before the jury. It's about the case. Correct. It's about the case itself. The case itself. The two aren't necessarily synonymous. Well, so what do you say was the matter pending before the jury? At the very least it was the appropriate sentence to be imposed. I mean, we know that the guilt had been determined and the communication occurred during the state court's synancing hearing, which is a jury determination in North Carolina. And so it had to do with the sentence that was to be imposed. And tell us how what your basis is to say that the communication based on what was before the state MRA court. What was the communication that was made before the jury and how does that relate to the matter before the jury? The communication with the juror was a discussion that she had with her pastor. So we know that's the talking that went on. That's the external communication. We know that she contacted her pastor because at least one of the jurors was hesitant about returning a death sentence in the case. Now, what do you say that was the reason she contacted her pastor? Because the affidavits in the case and their statements in the case indicate that one of the jurors was concerned or hesitant about imposing the death sentence. And that the affidavits say that's why the jurors, who I think was misoptions, I think that's probably wrong about that. Yes, I believe it does. I believe the affidavit of Artif Peacock, which is, and she was one of the jurors in the case, and so on page 1900 of the joint appendix. Her affidavit, I believe indicates that Holly Jordan made the contact with her pastor because there was a concern about a closing argument that was made by one of the lawyers for the co-defendant, Frank Chambers. And it was that concern. The affidavit says to rebut what Chambers attorney had said, one of the jurors brought a Bible into the jury room during the Liberations and read it and read from it to the jurors. I don't recall which juror brought the Bible, I'll call the exact verse. So let me tell you something that I hope council will address because the government didn't really correctly go out this and maybe that's because there wasn't an objection or trial. But as I read the closing argument, what the defense council told the jury was, and you disagree with this characterization, you tell us. Defense council said, and basically these words, the trial court will instruct you on what North Carolina tells you is your duty as a juror. And what the sensing range is in this case, you're going to apply the factors and choose within that sensing range what you deemed to be the appropriate sense. And defense council's opposing closing argument, unobjected to whatever reason said, well, you the juror can nullify the trial court's instruction and ignore the sensing range is higher end upon pain of eternal damnation. That's basically the argument the closing attorney may. So as I read the affidavits, the communication seems to be about whether or not the jurors are subject to eternal damnation if they follow the closing argument. But I'm not seeing anything in the affidavits that addresses the issue of what the jury is to decide. Well, I guess my response to that is I don't think it has to be specifically a communication specifically about what the jury has to decide. Although I would say that the real question is, was there enough of a showing that there was an external communication about the case that would require not only the presumption of prejudice, but at least an evidentiary hearing to fair it out precisely what was said and what impact it might have had. I mean, we don't have to make 100% of the showing in the affidavits and statements. We have to make enough of a showing as this court said and forward for there to be a serious question about the fundamental fairness given the external contact. And at that point, there should be an evidentiary hearing to excuse my sort of colloquial statement get to the bottom of the matter which didn't happen here. We don't know precisely what Holly Jordan asked her pastor. We don't know precisely what her pastor told her and we don't know what Holly Jordan then went into the jury room and related. And we need to know that this court needs to know that the state court of the district court needed to know that in order to resolve the troubling question as this court's language and forward indicated was given rise by the situation. That said, it seems to me that if what is going on I mean the ultimate question in the sentencing base of a capital case is what are we going to do? Are we going to give the to give the defendant life? We're going to give the defendant death and the closing argument of the co-defense lawyer according to the affidavits troubled the jury considerably. And Holly Jordan because she or others were troubled went to talk to her pastor about it got some spiritual guidance of some sort and then brought it back to the jury room. You know Mr Barnes is entitled to confront the evidence against him. I mean that's what's really going on in a what I call a jury misconduct case or an external communication case. I get to confront that evidence and I get 12 jaws not 13 and that didn't happen here or at least there's enough of a spectre it didn't happen. And it's does it make that you're here on habeas review at the stand as opposed to a standard if we were here on direct appeal. The the difference is there is some difference according to the state court determination under and once you move into habeas I certainly acknowledge that but the question in habeas review is for the district court and for this court and it's denoted. The other review of the court determination is was the state court's determination. An unreasonable application of subtle federal law and as I tried to indicate at the beginning of the argument I think the subtle federal law is you cannot have third part of communications with the jury. About the case and from all indications that's what was going on here she didn't call her pastor because they didn't have enough water in the jury. She called her pastor because they were troubled about what sentence to impose apparently because of the closing argument of the code of fitness council. So it's about the case and it's about what the jury is supposed to do at the end of the sentencing deliberations. So you have an unreasonable application of subtle federal law because there was a failure on the part of the disc of the state post conviction court to recognize the serious nature of the external communication. There was a failure of the state post conviction court to a court Mr. Barnes the presumption of prejudice that forward says under us Supreme Court law arises when you have an external communication. If we assume for purposes of argument you're correct on that. Under Edma there's a separate showing of prejudice. Whose burden is it to show that it would be it would be the petitioners burden to show the absence of substantial and injurious effect after an evidentiary hearing. So we know what we are dealing with in terms of measuring the prejudice. I don't have to show that now. No I don't I don't think I do have to show it yet. And that's what you're asking for an evidentiary hearing to have the opportunity to show a substantial and injurious effect. Is that what you're asking? Well that's that I'm at least asking for that in all candor with the court. I think the court could reverse and direct that district court to grant habeas for this reason. The respondent has had the opportunity in state post conviction and federal court to come forward with something and they haven't done that. I mean this issue has been front and center throughout this litigation. There's not a scrap of anything brought forward by the respondent. If the shoe on the other foot and I was in this court and had failed to come you know to develop something that it was my responsibility to develop. I'd be held to a procedural default. So I think the court could grant to direct district court to grant habeas and order new sentencing here. But at the very least we'd be satisfied with the reman for an evidentiary hearing because we ought to have the opportunity as forward explains to get to the bottom of what the misconduct was. What the discussions were. What the jury heard after that external communication to be able to determine whether there was prejudice or not. So certainly at the very least we would ask for an evidentiary hearing. I mean again I think what this court needs to look at is a very small part of this record. But we do have a statement from the juror in question. Holly Jordan which is on page 1898 of the joint appendix. We have an affidavit from the private investigator who talked to Ms. Jordan who talked to the pastor Reverend Lomax who talked to three other jurors. His habit aficism the record page 1892 and 93 of the joint appendix. When I have a david from sitting jorpecock. So on page 1900 of the joint appendix. And an affidavit from one of the lawyers who was not representing Mr. Barnes but was helping with the investigation in post-conviction. And she interviewed Ms. Jordan, Reverend Lomax and at least two or three other jurors. So there's significant evidence in a very small part of the record in this case that indicates there was an external communication. And there was no presumption of prejudice. If you read the state post-conviction courts. A dedication of this issue which is about one paragraph long. And it is is in the joint appendix on pages 1882, 1883. One paragraph acknowledging that this evidence was out there and saying well the defendant loses. And no indication that there was a presumption of prejudice courted and no evidentiary hearing conducts. I say there's no evidentiary hearing. The evidence that that hearing is we were concerned that based on the closing arguments of the fence council that we followed the instructions of the trial court. We would be damn for all eternity. That was the entirety of the evidence. Did you get relief at that point? No, because that would not be evidence of an external contact. We have that. They had contact with the pastor on whether or not if they followed the court's instructions. They would be damn for all eternity. Well, I have an external contact. Now you know the substance of the external contact. I think if the external contact is I talked to my pastor and he said we didn't have to worry about the co-defendant's closing argument. We would be able to show prejudice because there would be an impact. That's not the question I ask you. The question I ask you was if the evidence revealed that the summon substance of the extraneous contact was that the jurors would not be damned if they followed the trial court's instructions to consider the sentencing range. Would that be prejudicial? I think it potentially would. But we would need to know if that was all that was said, which is hard to me believe that would be all that was said in this communication. And we would need to know what Holly Jordan's interpretation, what words she used to relate that to the jurors. And I think we would need to know sort of what the other jurors' understanding of that communication was. To be able to really determine whether there was some sort of prejudicial effect. But again, you know under Rimmer, once we come forward with that, the burdens on the other side to overcome the presumption of prejudice. And that's what's never happened here is Mr. Barnes accorded the presumption of prejudice that Rimmer says we're entitled to and forward says we're entitled to. And once you have that, I mean again, if you look at forward, it's not a huge degree of difference between the substance of the communication here and at least the specter of what the communication was in this case, although we don't know. And forward said, well, it's troubling enough that there needs to be an evidentiary hearing. And that didn't occur here and at the very least we'd ask this court to reverse the district court and direct that an evidentiary hearing may help. I'd like you to have time at Rebuttal and will now hear from Mr. Bab. Mr. Bab, I want you to tell us why this petitioner isn't entitled to a hearing. Yes, sir, you're on. Yes, sir, you're on. Good morning. Under Columbia Pinholster, if there is no, in the situation Pinholster was in, there was no hearing. And the question the Supreme Court said was, under these circumstances Pinholster can satisfy the unreasonable application of 2254D1 only by showing there was no reasonable basis for the California Supreme Court's decision. And I think the question is determined was the North Carolina State Postconviction Court reasonable in its application, in its determination of the law? Was it an unreasonable application of Rimmer, which I believe is a point here? There's one thing I would like to respond to your honor. You said, well, pointing out the inappropriateness of the argument, it was not objective to. It was objective to, now it made it, it wasn't objective to when you really got going, but it was objective to at the beginning where you started talking about surely among one of you. There's a true believer, Mr. Kennerley, the district attorney objected, excuse me, and that's on page 1530, the joint appendix. It was overruled, and then it was off to the races. Now, I think I've never asked, you know, Bill Kennerley, why he didn't object, it wasn't an issue, obviously, further. But I think there isn't, you know, indication from the actual information before this court, the jurors didn't like the argument. I don't believe the characterization that the jurors had trouble imposing the death penalty is supported by the unsworn statements, the juror affidavit, the investigator affidavit, or the interviews. What we do know from that evidence, I'm going to rub you for some minutes. Yes, sir. I was going to ask a opposing counsel this question, if you answered on the rebuttal, if you disagree with me. It wasn't clear from the record if the, I think there are four affidavits that are in our record that were before the magistrate and the district court. Were those the affidavit, were all of those before the state, M-A-R court, was at the evidence there? Yes, sir. I believe, and I think that's shown by the affidavits, the way they're in the joint appendix is as exhibits to the motion for appropriately the state court. But I believe that they were all before the state court, and I would be surprised if the answer was different from counsel. What evidence did the government, in the state, offer to refute those affidavits at M-A-R? No evidence, be your honor. And none was needed, because of the questions, well the basis behind the questions by Judge Agi and Thacker earlier, it wasn't a matter before the jury. But just to expand on that a little bit, there wasn't evidentiary hearing in the case. Well, the matter before the jury was whether or not to impose the death penalty, and that's what the extraneous communications were about. And that doesn't, those communications go specifically to the heart of what the jury was there trying to do. No, ma'am, I don't agree with that. Yes, the ultimate, I don't know if you want to precise. Yes, the ultimate question is whether to impose the death penalty. I think it's just court has said about the applying of aggravators and mitigators, what the jury is doing. The argument that bothered the jurors made the matter, whatever house, characterizing the information, was the eternal damnation salvation that Judge Agi has talked about earlier. And there is information in the affidavit that at least one juror, Juror Weddington recalled that a juror read a passage from the Bible to another juror who was having a hard time with the death penalty. And the passage that was read, again we're putting it together, because... Because you don't know the passage that was read to you. Well, and we don't know exact scripture, but we know the general thrust of it. It was a passage of Echrishans duty to follow the laws of the state. Now what we do know is that Ms. Jordan did contact Reverend Lomax. She did read a passage to the jury as you are just said. Reverend Lomax, who was interviewed by defense investigator, does not remember ever talking to her. I surely could have, but I don't remember it. Ms. Jordan doesn't remember the exact passage, but she says it was on Echrishans duty to follow the law. And she said in her unsworn statement that she knew the passage from church. But the passage in question, Echrishans duty to follow the law, that would again relate to the improper jury argument about salvation or damnation, which I don't believe is before the jury. In determining whether these three defendants receive the death penalty or not. The argument that if you don't vote the way I want you to, you risk your soul, is not proper. And this communication with Reverend Lomax, the passage is not one that says an eye for an eye, which is core to spound not to be in and of itself objectionable in other situations. But it wasn't calling for mercy or severity. It was saying follow the law. And the law was either give life or death. Now, the state, M.A.R. court did not have an evidentiary hearing on this claim. That evidentiary hearing on other claims. There were over 20 claims. Let me ask you about that. If I can, it would appear that the state, M.A.R. court, may have factual error. And that, if I'm recalling that, it's opinion correctly. It said there was no new evidence from what had appeared before the North Carolina Supreme Court in the direct appeal. But I'm thinking that that was incorrect because the affidavits that we have here were not before the North Carolina Supreme Court at the time. Is that correct? Yes and no, Your Honor. They weren't before the Supreme Court. But the M.A.R. court didn't say there is no new evidence. The M.A.R. court in its ruling said the allegedly new evidence adds nothing to the issue as it was presented during the Fendant's initial appeal. And the allegations are subject to the same analysis inherent in that decision. We determined that that was factually incorrect. The affidavits contained some new information that was not on the direct appeal trial record. What difference does that make? Well, Your Honor, I'm not trying to be a question, but he doesn't say it's not new evidence. He says it adds nothing to the issue. Right. But if these affidavits, maybe that's the answer, but I mean the affidavits appear to be more expansive than the dialogue that occurred before the trial court in the trial. Well, they are more expansive, but the state court was absolutely correct that they didn't add anything because what was before the question the trial judge asked was, is there any evidence that they did discuss the facts of this case or particular facts of this case? And the answer was there's no evidence they did or did not, but no evidence they did. No, no, no, no evidence they did. There was nothing that was added to the, with that would give you that matter before the jury language this enrimmered. And Rimmer does say, you know, as the court pointed out that it has to be a matter pending before the jury. And assume that we find that it was a matter pending before the jury. In Rimmer, the court also ordered a hearing because it did not know from the record, nor did the petitioner know what actually transpired or whether the incidents that may have occurred were harmful or harmless. Isn't that the exact situation we have here, assuming we find that this was a matter before the jury? No, ma'am. And why not? Because the question isn't whether you find that it wasn't a matter before the jury. The question is whether you find that it was an unreasonable determination that it was not before the jury. And that simply is, I just can't see that. And we find that it was an unreasonable determination that it was not before the jury. Or if you find it's unreasonable, then petitioner, if you find an unreasonable application, then you get to do enough a review if there's break there as well. But I just can't, well, I would submit that there's, it's not a, it would be very unreasonable. I mean, it would not, it cannot be unreasonable application of Rimmer, where the matter's not even before the jury in the first place. And also, how can you say that? The death penalty is before the jury. And that's what they're talking about. No, actually, what the, yes or your honor, the death penalty was before the jury, but what the argument was talking about was, you're going to lose your eternal salvation or be damned for eternity if you don't vote my way. That isn't an aggravator or a mitigator. And that's not properly before the jury. So if the, because the jury didn't, the one thing has been characterized and the district court points us out in a, in its excellent order, the, the, the, the brevren was not a second or third prosecutor, whatever he's referred to in position brief, he wasn't a 13th jury. There's no evidence at all that he advocated for life or death. The passage in question. That's point there, because there wasn't a hearing. But you're on. And out actually what went on, but they talked to the, the reverent and he said he didn't recall. Well, you know, I don't know what that factual issue that Judge A. G. raised is pretty significant for this reason. The Supreme Court used language that it was just a mere unsubstantiated, unsubstantiated allegation. That's a finding by the Supreme Court. Yes, but this course reviewing the state post-cubition, which found to be without merit. I understand that. Oh, yes, I understand that. But the M.A.R. court essentially did the same thing. Well, but regardless of what the M.A.R. court did or said and didn't mention rimers specifically, this court would have to find looking at the result of the M.A.R. court that it was an unreasonable application of rimmer to find that the jury's eternal salvation was not a matter before the jury. And I just don't think that's possible. Also, rimmer, if you look at rimmer, yes, there wasn't a hearing, but rimmer was a third party contenting a jury about a bribe. The FBI investigated the case during the trial and they never told defendant about it. And also, I just have to say on the full wood, counsel argued that full wood is not a huge degree of difference with here. But in full wood, one juror was influenced by her husband who kept telling her to vote for death. And also, the jury was aware full wood had always been already been sentenced to death and it was reversed on a technicality. That's the first off, it's not a US Supreme Court case that wouldn't be till they established law, but it's nowhere near similar to the facts we have here. Well, if we assume there was a finding here of unreasonable application, clearly it was to have a Supreme Court law. So, assume for purpose of our under-advice, is that the end of it? Or is there anything further that the petitioner needed to shut? The petitioner would also need to show your honor, I believe, as you questioned earlier, a substantial and injurious effect on the verdict. And even if we were looking at that, I'm in no way conceding that this was unreasonable application law because I just can't see how it could possibly be. But if we're just looking at an injurious effect, the verse in question is, a Christian's duty to follow the laws of the state. It doesn't say anything about punishment or mercy. It doesn't go to a mitigator aggravator. It's talking about the jurors, not talking about the defendant. That is not a showing of a substantial injurious effect on a verdict. Now, the State Posting Convention Court decided this claim on the merits. Well, if we were here on direct appeal, would the issue be different? If we were here on direct appeal, and we didn't have these unsworn statements, or- maybe how about this? We're here in Epidet and apply. And I'm not trying to be flippant. Again, I just don't see how there's any injury to defend it because for defendant to prevail and say there is this matters before the jury. It's a equivalent of- it is the functional equivalent of saying, I get the benefit of this improper argument of telling the jury they're going to lose their salvation if they don't vote my way. And then if anyone reacts to that and looks at the Bible, calls a preacher about that particular- that's just not part of what's going on in the jury's termination of that person, these defendants, these three defendants, two of which got the death penalty one to not- these three defendants, whether they get life or death. The jury decided that two of them, the most culpable, which this defendant was one off, received death and the third received life. But their salvation was not a matter before them. And there's no- I do not believe that- Where is it in the record that Ms. Jordan said that the passage was about following the laws of the state? It is in the unsworn statement that defendant submitted its own 1898 of the Joint Appendix- I apologize- and she says- she read a unspecified passage from the Bible stating it's the duty of Christians to abide by the laws of the state. Now, some of the other affidavits refer to a Bible but they don't passage, but they don't refer to a specific passage. And the one affidavit from a juror does not say anything about being hesitant to impose the death penalty. It says that the argument made the jury furious, which simply enough would might be why the District Attorney didn't object to it after the first- Did you or Weddington say that one of the jurors was having a hard time with the death penalty? Well, I- that is written down- yes, ma'am. I guess what I'm trying to say is the only affidavit from a juror. There is- These juror interview notes that are unsworn and unsigned from- But in terms of the only affidavit- And never about it. Yes, unrebutted. And again, the state, you know, the argument that if- The state has to come forward and present something just turns this whole process on its head. That's not the case. The state came forward. Doesn't come forward unless the defendant meets their burden. And in this situation, again, Rimmer just can't apply because it's not a matter before the jury. And even if this court were to somehow disagree with that, it would not be enough for relief. You'd have to find it to be an unreasonable application for the state court to not apply a presumption. And that- and based on the other cases, especially where, you know, under Edpa, as the Supreme Court said in Carey V. Muslim, where there's a lack of cases specifically addressing a ground for relief, it cannot be said the state unreasonably applied to fully established federal law. This- this is- there are other juror communication cases. Smithfield, of Parker V. Gladden, Maddox, of the U.S. Rimmer, of U.S. From the Supreme Court. But none involve a- I'm not sure, because one of the other jurors wanted to impose the death penalty. And the juror who called her pastor did not. And the- and the passage that they read to the juror was, they'll shout not kill. Would the state feel the same way? That that's not a matter before the jury? Well, the state wouldn't have any recourse, because if the state laws were stuck, that's- that's not a level plan code. But in terms of just the academic answer to that question, is that- that verse would be different except for the fact that this court's already said that an eye for an eye. I mean, who doesn't know Thal Shunai killed the tin commandments in Rohingya County, North Carolina? I think that would be internal eye. And this court's found the same. The state might not like it if a juror decides that they can't apply the death penalty. And maybe they didn't question them enough and board deer, but none of this- I don't think that would add to the argument for this court here. I'm sorry, to answer that question, Your Honor. I ran with a little bit. I apologize. One second, Your Honor. I also want to just briefly say that- just follow up on the carry reference, the Nevada reference. The cases, if you look at the Supreme Court cases, I just mentioned- none of them are close to what we have here. Even in the very old one from 1892, the bailiff told the jurors- this is the third murder he's done. Park of you glad. That's a wicked fellow. And by the way, if y'all making mistakes, the state Supreme Court will fix it, don't worry. But then Smithy Phillips, the juror applied for a job with the DA, it wasn't disclosed, to laugh for trial. They found no air. Of course, all those cases are pre-edbah, and none of that presumption applies in habeas. But just looking at the application, this court cannot find that there was an unreasonable application for the state's M.A.R. court to deny the defendant's claim. Thank you. Thank you very much, Mr. Bab. Mr. Woodenhouse, you've got some remaining time. Please, the court, just several points in the rebuttal. First with regard to the question about whether the affidavits that were presented to the district court were presented to the state court. Undoubtedly, there were. We did not include the various motions for appropriate relief and attachments in the joint appendix, but they're in the district court record, and we can get them for the court if the court needs it. But if you look at the district court opinion, particularly pages 2140 and 2141, and the long footnote 10 of the district court opinion, it indicates that it's relying on these affidavits that all have been presented to the state post-conviction court. And with regard to the affidavits, I think it's very important for the court to keep in mind that investigator Williams affidavit refers to Jorowettington. And says that Jorowettington specifically said that one of the other jurors was hesitant about returning the death sentence, and at that point, that was when the communication between Ms. Jordan and her pastor occurred. We, of course, don't know the precise four corners of that communication, which is why we need an evidentiary hearing. But there is no doubt that the record shows one of the jurors was hesitant about imposing it as sentence, and the closing argument was a part of that consideration, and that certainly is a matter that was before the sentencing jury. Secondly, with regard to Mr. Bab's suggestion that there was an objection at some point to this closing argument, that is a strange reading of this record. The place where the objection occurs is on page 1529 of the Joint Appendix. If we know what the improper, allegedly improper closing argument was about eternal damnation, that doesn't occur to page 1532 of the Joint Appendix. So you have three or four pages of closing argument from the objection that doesn't have anything to do with this argument to the place where the argument occurs where there is no objection. So clearly this is an unobjected to closing argument of the other co-defendants counsel to the extent that makes any difference. I honestly don't think that's an absolute thing. I mean, it's in. I'm sorry. I said it's in. So whether it should have come in or not. And the third with regard to whether this is. What about the fact that it was that the affidavits do also show that it was the argument that the jurors were concerned with. The states point that that that was the matter that was before the jury. Because the argument is about what sentence should be imposed in the case that it sounds to me like the state is almost saying if it's a closing argument question, that's not before the sentencing jury. And that's essentially what the district court's fine arguments of counsel aren't aren't evidence. No, but they are matters before the jury. The jury considers everything they hear in the courtroom unless the trial court says strike that from the record and the jury is instructed to disregard. So this was clearly something before the jury. And finally, as my time is running out, I think the substantial and injurious effect we at least have here under four wood is the failure to be accorded the presumption of prejudice. And as forward said, when you have these troubling allegations, you have to have a hearing. Thank you very much, Mr. Wood