Byron Ashley Parker | Murderpedia, the encyclopedia of murderers

Byron Ashley PARKER

Classification: Murderer

Characteristics: Kidnapping - Rape

Number of victims: 1

Date of murder: June 1, 1984

Date of arrest: 6 days after

Date of birth: August 1960

Victim profile: Christie Ann Griffith (female, 11)

Method of murder: Strangulation

Location: Douglas County, Georgia, USA

Status: Executed by lethal injection in Georgia on December 11, 2001

Summary:

Parker, 41, was sentenced to die for the Douglas County kidnapping, raping and strangling of 11 year old Christie Ann Griffith in 1984 after the young girl asked him if he had seen the taxi that was to carry her to her brother's high school graduation.

Parker offered her a ride. He took her to a secluded area where he killed her and left her body tied to a tree.

During the crime, Parker's 2-year-old son waited inside a nearby locked car.

Parker was on felony probation at the time of the murder and confessed to the crime following a polygraph and interrogation, leading investigators to the body.

Georgia Attorney General

Press Advisory - 12/12/01

Information on the Execution of Byron Ashley Parker.

Georgia Attorney General Thurbert E. Baker offers the following information on the execution of Byron Ashley Parker.

Execution

On November 27, 2001, the Superior Court of Douglas County filed an execution order, setting the seven-day window in which the execution of Byron Ashley Parker may occur to open at noon, December 11, 2001, and close at noon, December 18, 2001.

The Commissioner of the Department of Corrections scheduled Parker’s execution to take place at 7:00pm on December 11, 2001.

Parker had concluded his direct appeal from his Douglas County criminal case as well as one state and one federal habeas corpus case. The scheduled execution of Parker was carried out at approximately 7:26pm on Tuesday, December 11, 2001.

Parker’s Crimes

Bryon Ashley Parker was sentenced to death for the malice murder of Christy Ann Griffith in Douglas County on or about June 1, 1984.

On direct appeal, the Georgia Supreme Court found the following facts: The 11-year-old victim in this case disappeared on June 1, 1984. Foul play was soon suspected. Law enforcement officers questioned a number of persons residing in the trailer park where the victim had lived -- including Parker, who was questioned on June 5, and again on June 6. He signed a consent-to-search form on June 6.

Officers searched Parker’s house on June 6, but found nothing relating to any possible criminal activity except for a small amount of marijuana.

Because Parker’s statements regarding his whereabouts at the time the victim disappeared were not entirely consistent, and because the investigators learned that Parker had earlier been charged in an incident involving a young girl in Florida, they began to focus their attention on Parker as a suspect.

Parker was asked if he would be willing to take a polygraph examination the next day (June 7). Although Parker assented to the test, he failed to show up for the examination.

Parker had been convicted earlier on felony charges and was placed on probation in Fulton County on May 15, 1984. The probation was transferred to Douglas County that day, and he was scheduled to meet with his assigned Douglas County probation officer on June 1. He failed to appear then, but he did meet his probation officer on June 5, and asked for permission to leave the state.

After Parker failed to appear for the polygraph examination on the morning of June 7, two warrants were issued for his arrest; one charged him with the misdemeanor offense of possession of less than an ounce of marijuana, and the other was for a violation of the terms and conditions of his probation in that he “failed to appear as directed to the Douglas County Probation Office.”

Parker was arrested on these warrants. After talking further with law enforcement officers, he told them he would take a polygraph examination, provided that he was allowed to talk to his attorney beforehand.

Parker had called an attorney prior to his arrest and had made arrangements to meet him that day. Now Parker called him again, and the attorney met him at the FBI Atlanta office, where the examination was to take place.

The attorney (who did not represent the defendant at trial) testified that he told Parker that Parker could not be required to take the test, but Parker answered that if he did not, his probation would be revoked and he would be “put in jail for five years . . . on that marijuana charge.”

The attorney testified he then talked to the sheriff who “indicated” to him that if “Parker could clear himself at that particular time with this polygraph test, . . . he could go on home.”

The attorney testified that he discussed the situation with Parker, who adamantly denied any involvement in the disappearance of the girl.

They agreed, then, that Parker should go ahead and take the examination. As the attorney left, he indicated “to them that I was not going to sit in on this, I would be at my home, and as soon as this is completed for someone to call me.”

The sheriff confirmed that he had discussed the marijuana warrant with the attorney. He testified he had told the attorney, “I can’t promise you anything, . . . but if this young man passes the test . . . I’ll go to the district attorney and ask him, you know, explain to him the situation and ask him to cause the warrant to be dismissed.”

He denied discussing the probation warrant and denied threatening Parker with five years of prison if he refused to take the examination. He explained that the probation warrant was issued from another county, and that it was for failing to appear according to the terms and conditions of his probation, and that the sheriff therefore had no control over that situation.

Parker took the polygraph examination. The examiner wanted to conduct another test before he could come to any final conclusions, but the examiner did tell the sheriff that, not withstanding his answers, Parker knew where the body was. [Footnote omitted].

Parker was returned to Douglas County. He talked briefly to a couple of law enforcement officers, and then Parker was allowed to talk to his mother and two sisters, for about half an hour.

Afterwards, he was again given Miranda warnings and the interrogation resumed. The sheriff testified that, in accordance with the attorney’s request, he and Parker attempted to call the attorney, at his office and at his home.

He testified: “[Parker] tried, you know, one or more times. I tried several times because Parker was being interviewed, and I did not reach [the attorney] until after I had discovered the remains of [the victim]. So it could have been 2:00 or 3:00 o’clock in the morning, but I had tried up to near midnight at both numbers and failed to reach him.”

The state asked the sheriff whether the attorney had ever asked or directed the sheriff to refrain from talking to Parker. The sheriff answered that he had not.

At approximately midnight, Parker admitted responsibility for the victim’s disappearance, and agreed to reveal the location of the body. He drew a map, which law enforcement officers used to find the body. Afterwards, Parker was interrogated again; this time the confession was tape-recorded. Parker v. State, 256 Ga. 543-45, 350 S.E.2d 570 (1986).

The Trial

Parker was indicted by the Douglas County grand jury on July 17, 1984, for the malice murder, rape and kidnapping of Christy Ann Griffith.

At a jury trial on November 5-9, 1984, Parker was found guilty of murder and rape, and a judgment of nolle prosequi was entered on the kidnapping count. The jury found the existence of three statutory aggravating circumstances: one O.C.G.A. § 17-10-30(b)(7) circumstance and two (b)(2) circumstances, i.e., the murder was committed during the commission of the capital felonies of kidnapping with bodily injury and rape, and fixed the sentence for murder as death.

The trial court imposed a consecutive life sentence for rape. On appeal the Georgia Supreme Court adjudicated some issues but remanded the case for further proceedings on the admissibility of Parker’s custodial statements. Parker v. State, 255 Ga. 167, 336 S.E.2d 242 (1985).

After the remand, the state appellate court affirmed the murder conviction and death sentence, but set aside the rape conviction because the trial court erroneously declined to charge on child molestation as a lesser included offense. Parker v. State, 256 Ga. 543, 350 S.E.2d 570 (1986), cert. denied, 480 U.S. 940, reh’g denied 481 U.S. 1060 (1987).

The death sentence was affirmed based upon the (b)(2) kidnapping with bodily injury aggravating circumstance, while the other two circumstances were set aside: the (b)(7) due to instructional error and the (b)(2) based on rape since the rape conviction itself was reversed. Id. at 551.

The State Habeas Corpus Case

Parker filed a habeas corpus petition in Butts County Superior Court on July 24, 1987, and subsequently amended the petition while he also pursued a freedom of information act request in Washington, D.C., for documents from the F.B.I. Evidentiary hearings were held on March 26, 1990; May 21, 1990; July 19, 1990; and March 9, 1992. Relief was denied on May 5, 1995, in an unpublished order. The Georgia Supreme Court denied Parker’s application for certificate of probable cause to appeal on May 24, 1996. Certiorari was denied on December 16, 1996. Parker v. Zant, 519 U.S. 1043 (1996).

The Federal Habeas Corpus Case

On November 15, 1996, Parker filed a federal habeas corpus petition in the United States District Court, Northern District of Georgia.

On August 13, 1999, the district court denied relief. Parker was granted permission to appeal on six issues, but he pursued only four in the United States Court of Appeals for the Eleventh Circuit.

The briefing schedule was stayed pending decision by the United States Supreme Court on a particular issue. In an opinion entered March 15, 2001, the Eleventh Circuit affirmed the district court’s denial of relief. Parker v. Head, 244 F.3d 831 (11th Cir. 2001).

Rehearing was denied on May 31, 2001. Parker v. Head, 260 F.3d 628 (11th Cir. 2001). The United States Supreme Court denied certiorari on November 26, 2001.

ProDeathPenalty.com

Bryon Parker was sentenced to death for the malice murder of 11-year-old Christy Ann Griffith in Douglas County on June 1, 1984.

Christy disappeared on that day and foul play was soon suspected. Law enforcement officers questioned a number of persons residing in the trailer park where the victim had lived -- including Parker, who was questioned on June 5, and again the next day.

He signed a consent-to-search form and officers searched his house on June 6, but found nothing relating to any possible criminal activity except for a small amount of marijuana.

Parker was asked if he would be willing to take a polygraph examination the next day (June 7). Although Parker agreed to the test, he failed to show up for the appointment.

Parker had been convicted earlier on felony charges and was placed on probation in Fulton County on May 15, 1984.

The probation was transferred to Douglas County that day, and he was scheduled to meet with his assigned Douglas County probation officer on June 1.

He failed to appear then, but he did meet his probation officer on June 5, and asked for permission to leave the state.

After Parker failed to appear for the polygraph on the morning of June 7, he was arrested on two warrants that were issued for his arrest; one charged him with the misdemeanor offense of possession of less than an ounce of marijuana, and the other was for the probation violation.

After talking further with police, he told them he would take a polygraph test, provided that he was allowed to talk to his attorney beforehand. Parker took the polygraph.

The examiner wanted to conduct another test before he could come to any final conclusions, but the examiner did tell the sheriff that, not withstanding his answers, Parker knew where Christy's body was. Parker was returned to Douglas County. He talked briefly to a couple of officers, and then Parker was allowed to talk to his mother and two sisters, for about half an hour.

Afterwards, he was again given Miranda warnings and the interrogation resumed. At approximately midnight, Parker admitted responsibility for the victim’s disappearance, and agreed to reveal the location of the body. He drew a map, which police officers used to find the body. Afterwards, Parker was interrogated again; this time the confession was tape-recorded.

Parker Executed Despite Advocates' Pleas for Mercy

By Rhonda Cook - Atlanta Journal-Constitution

December 12, 2001

Jackson -- Despite claims that he is a changed man, Byron Ashley Parker died at 7:26 p.m. Tuesday, becoming the fourth person executed in Georgia by lethal injection since Oct. 25.

He recorded his final words into a tape recorder before he was led into the death chamber, where he apologized to the family of Christie Ann Griffith. He declined to make a second statement to witnesses after he was strapped to the gurney.

Hazel Griffith, mother of the 11-year-old girl Parker was convicted of murdering, said she would go to her daughter's grave today to tell her, " 'Baby, rest in peace because your killer is dead in hell.' He took everything away from me, and I hope he burns in hell."

Parker, 41, was sentenced to die for the Douglas County kidnapping, raping and strangling of Christie Ann Griffith in 1984 after the young girl asked him if he had seen the taxi that was to carry her to her brother's high school graduation.

Parker offered her a ride. He took her to a secluded area where he killed her and left her body tied to a tree. During the crime, his 2-year-old son waited inside a nearby locked car.

Parker spent his last day visiting with friends and relatives; about 20 came throughout the day. Corrections spokesman Mike Light said Parker was emotional all day Tuesday, and after his relatives left he cried for the first time.

Unlike the the 26 men Georgia has executed in the past 18 years under the current death penalty law, Parker did not ask for anything special for his last meal. Parker declined the meal that was served late Tuesday afternoon to other inmates at the Diagnostic and Classification Prison at Jackson. All he had before his execution was chocolate milk and coffee.

Witnesses said Parker's only words once he was in the chamber were to ask for a prayer, and to echo the chaplain when he ended it with "Amen." Throughout the 10-minute procedure Parker "mostly stared at the ceiling," according to witnesses.

In addition to the official witnesses who are routinely assembled for executions, this time there was an investigator for a 19-year-old accused murder facing the death penalty in Bibb County. A judge ordered the Department of Corrections to allow a representative for Thomas Gaillard to be there to present evidence in his unscheduled trial as to whether lethal injection is unconstitutionally cruel.

Unlike two of the three previous lethal injections, Corrections officials said they had no problems finding veins in which to send the lethal drug combination. "He's getting an easy way out," said Hazel Griffith, still bitter about the death of her youngest child. Griffith, now a 57-year-old grandmother, waited at home for news that Parker was dead.

Parker's advocates tried to win him mercy by portraying him as changed and rehabilitated. They included about 100 writers who considered him a peer.

Parker has written poetry, novels and screenplays, including some that were published, according to his attorney. "I believe in rehabilitation," Bettie Sellers, Georgia's poet laureate 1997-2000, said of the man to whom she had offered writing tips. "I believe if anyone has been rehabilitated . . . Byron Parker is that person. He is not the same person who murdered that little girl."

Parker's Execution Set for Tonight

Investigator for another inmate will be allowed to watch insertion of IVs

By Rhonda Cook - Atlanta Journal-Constitution

December 11, 2001

Condemned child killer Byron Ashley Parker decided he would not bother asking the state Board of Pardons and Paroles for mercy. Instead, Parker put his hopes in the federal appeals court.

Parker's attorney said the condemned man believed he could not get a fair hearing before the Parole Board. The board reviewed his case anyway, and declined to commute his sentence to life in prison.

Parker, 41, is sentenced to die at 7 p.m. today for raping and murdering Christie Ann Griffith. Prosecutors said Parker took the 11-year-old Douglas County girl to a secluded area where he strangled her while his 2-year-old son was waiting in a locked car nearby. While Parker's lawyers worked to keep him alive, other attorneys worked to lay the groundwork to challenge the constitutionality of lethal injection.

A judge ordered the Department of Corrections Monday to allow an investigator for another accused killer to watch Parker's execution, including the strap-down and the insertion of the IVs. Since the first lethal injection Oct. 25, witnesses have been allowed into the death chamber only after the IVs have been inserted. In two of the executions, medical workers had problems inserting the IVs.

Opponents of the death penalty contend that the insertion of the IVs in those cases amounts to torture. The investigator will be looking to bolster the argument that lethal injection is unconstitutionally cruel at Parker's execution. The investigator works for attorneys representing Thomas Gaillard, 19, accused of killing a Macon convenience store clerk last December. Gaillard's trial has not been scheduled.

Parker is set to become the fourth person to die by lethal injection in Georgia. In his federal court appeal, Parker claimed he couldn't get a fair hearing before the Parole Board because its chairman was not open to his request.

He cited comments board Chairman Walter Ray reportedly made three years ago, suggesting that he would not commute the sentence of any death row inmate. Ray has denied saying that. A federal judge called the allegations "troubling" but said they did not disqualify Ray from deciding cases.

At a news conference Monday, Parker's sister pleaded for mercy. "Byron's not the same person who committed this crime," said Teresa Lummas, Parker's older sister. "Byron's rehabilitated. He's remorseful and tried to make up for what he did. ... I don't think it will help the family of Christie have peace or any closure." The slain girl's mother said, however, she is looking forward to the execution. "I am eager," said Hazel Griffith. "It will be a bit of closure. It won't be much, but it will be closure. I won't have to hear his name any more. He will be wiped out, off the map."

Death Row Inmate Claims Fair Hearing is Impossible

By Rhonda Cook - Atlanta Journal-Constitution

December 6, 2001

Byron Ashley Parker, scheduled to be executed next week, claims he cannot get a fair hearing before the state Board of Pardons and Parole because three of the five members are beholden to the attorney general and would not spare the condemned killer to curry favor with the state's top lawyer.

In a document filed with the U.S. District Court Wednesday, Parker's lawyers said these board members have a "servile relationship with the Attorney General." They also claimed board Chairman Walter Ray has vowed no death row inmate will "ever get clemency" as long as he is head of the panel. Ray said Wednesday, "I never made the statement in question or any statement like it. I review the facts of every case and vote based on those facts."

Parker's lawyers also contended that Ray, as chairman, counts the secret votes of the other four members and he could "manipulate" the results of a balloting. But Ray said the original votes are preserved with the signatures of each board member on the ballots and can be provided to a judge for private review. The state's attorneys had not read the court motion and had not filed a response.

Parker is set to be executed Tuesday for the 1984 kidnapping, rape and murder of an 11-year-old Villa Rica girl. Prosecutors said Christie Ann Griffith was about to go to her brother's high school graduation when Parker abducted her, taking her to a wooded area, where he raped and strangled her.

Parker's 2-year-old son was waiting in a locked car nearby. If he is executed next week, Parker will be the fourth person to die by lethal injection in Georgia since Oct. 25.

One of the arguments Parker is raising in the appeal filed in federal court is similar to one that was central to the final legal maneuvering in two of the three who were executed before him --- that two of the five Parole Board members face a conflict of interest because the office of Attorney General Thurbert Baker is investigating them for allegations that they had an improper relationship with a private probation firm.

Parker's lawyers, as in the two previous cases, claim Ray and board member Bobby Whitworth would be inclined to deny Parker's pleas for mercy to curry favor with Baker, whose office also is charged with defending death sentences. But the state and federal courts that heard the similar appeals in the two previous cases refused to step in, saying there was nothing to show that those men did not have fair hearings.

This time, though, another board member has been added to the mix. Gene Walker has been accused of sexually harassing his secretary, who expects to sue him if they can't reach an agreement within three months.

If civil charges were brought against Walker, Baker's office would defend him. "The board, as it is comprised today, does not provide a fair, neutral and detached decision-making body," wrote Parker attorney Thomas Dunn. "The Attorney General, the principal proponent of Mr. Parker's execution, is either investigating or defending three of five Board members. These members have an obvious and apparent interest in accommodating the Attorney General by adopting their defender-prosecutor's position that Mr. Parker should die," Dunn wrote.

Fourth Execution of Year Set Dec. 11

By Bill Rankin - Atlanta Journal-Constitution

November 29, 2001

Georgia on Wednesday scheduled its fourth execution of the year. The Department of Corrections said Byron Ashley Parker, 41, would be executed at 7 p.m. Dec. 11 for the murder and rape of an 11-year-old Douglas County girl in 1984. If Parker's execution is carried out, Georgia will have executed more people this year than in any other year since 1987.

After a three-year hiatus, Georgia's death chamber is now preparing for its fourth execution since October when the Georgia Supreme Court declared the electric chair unconstitutional on grounds it was cruel and unusual punishment. Since late October, condemned killers Terry Mincey, Jose Martinez High and Fred Marion Gilreath have been executed by lethal injection.

When he was 24, Parker was convicted in the slaying of Christie Ann Griffith, who lived in a Villa Rica mobile home community and was a fourth-grader at Arbor Station Elementary School.

Prosecutors said that Parker picked up Christie, who was preparing to go to her brother's high school graduation, and drove her to a wooded area where he raped and killed her. His 2-year-old son waited in the car nearby. Douglas County police discovered the girl's body a week later off Chapel Hill Road.

Douglas District Attorney David McDade said Wednesday his thoughts were with the Griffith family. "They have suffered long enough," he said. "They deserve some closure. This won't end their suffering, but it will turn a page in their life, hopefully."

USA (Georgia), Byron Ashley Parker (m), white, aged 41

Amnesty International

Byron Parker is scheduled to be executed in Georgia at 7pm local time on 11 December 2001. He was sentenced to death for the murder of 11-year-old Christie Ann Griffith in 1984 and has been on death row for 17 years.

Since the trial, a majority of the jurors who sentenced Byron Parker to death have supported commuting his death sentence to life imprisonment. At the trial, the jury had been left largely unaware of the abuse he suffered as a child. His clemency application is based upon his remorse for the crime and his rehabilitation during his time on death row.

He has pursued his education at his own expense, achieving his high school diploma, as well as a degree from the University of Iowa, where he has also taken graduate courses. He has published poetry, short stories and screenplays. A former poet laureate of Georgia has reportedly used Byron Parker's writings in classes she teaches at a state college.

Byron Parker has requested a clemency hearing before the State Board of Pardons and Paroles, but is questioning its ability to conduct a fair hearing because of apparent conflicts of interest of some of its members.

The Board's Chairman and one of its members are being investigated by the state Attorney General's Office over allegations of criminal misconduct in a matter unrelated to their involvement with the Board. A third member is reportedly facing a lawsuit for the alleged sexual harassment of his secretary and would be defended against that claim by the Attorney General's Office.

The Attorney General's Office is the very same office that represents the state when condemned inmates appeal against their death sentences as well as when they petition for clemency. Byron Parker's lawyers have filed a civil action in federal court, arguing that it is impossible for their client to have a fair clemency hearing while three of the Board's members are either being investigated or defended by the body that is the "principal proponent" of his execution.

Byron Parker's lawyers are seeking a stay of execution until such time as none of the Board members have relationships with the Attorney General's Office that may raise doubts about their impartiality as Board members.

The lawyers are calling for the Governor to investigate and remove any Board members who cannot fulfil their duties. According to the court action, under Georgia law, if the Governor has reason to believe that any member of the board is "unable to perform the duties of his office", he or she must convene a "council" to establish if that is the case.

Article 6(4) of the International Covenant on Civil and Political Rights states: "Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence". For this to be a meaningful right, and for public confidence in the justice system to be maintained, transparency and fairness in the clemency process are essential.

Amnesty International does not seek to make any comment on the allegations against the individual Board members, and in any event opposes the execution of Byron Parker or any other inmate regardless of these allegations. Nevertheless, it believes that the current situation in relation to the Georgia clemency process can serve only to undermine public confidence in the administration of justice in Georgia.

National Coalition to Abolish the Death Penalty

Byron Parker - Scheduled Execution Date and Time: 12/11/01 7:00PM EDT.

With the scheduled execution of Byron Parker on Dec. 11, Georgia is on track to carry out four executions for 2001, all within a two-month period. Parker’s last chance to avoid being executed appears to lie with the Georgia Board of Pardons and Paroles- two members of which are currently being investigated for criminal activity. It is unlikely this board can provide a fair and just hearing.

Parker was sentenced to death for murdering Christie Ann Griffith in 1984. Parker’s case had legitimate 6th amendment claims- he was interrogated by police without legal counsel for six days after he invoked his right to an attorney.

However, the procedural rules of the U.S. circuit courts bar this claim from being considered on its merits. Because this claim was not raised at the guilt or punishment phase of trial, it may not be raised on appeal, the 11th Circuit Court of Appeals ruled.

Parker’s last chance lies with the Board of Pardons and Paroles, which is currently being investigated by the Attorney General’s Office. Unfortunately for Parker, it will be that very same office which argues against his clemency to the Board.

It is hard to find a greater conflict of interest when two members of the board have an opportunity to side with the agency investigating them for criminal acts. Let the Governor of Georgia know that the review of criminal cases requires fairness and impartiality.

Death Penalty Information Center

MEDIA RELEASE - Legal Team Files Civil Right Action on Behalf of Death Row Inmate to Call for Fair and Impartial Clemency Hearing - Spokesteam Available for Comment

Later today, a civil rights action lawsuit is being filed against the Georgia State Board of Pardons and Paroles on behalf of death row inmate Byron Parker, alleging that three of the five parole board members are operating under a conflict of interest.

Lead attorney Thomas Dunn says the lawsuit is intended to give Mr. Parker a fair and impartial clemency hearing. As reported in today's Atlanta Journal Constitution, three of the five board members are either under serious criminal investigation or the threat of a career-ending sexual harassment suit.

Chairman Walter Ray and member Bobby Whitworth are being investigated by the Attorney General of the State of Georgia. Board member Eugene Walker is being defended in a sexual harassment lawsuit by the same Attorney General's Office.

"The Attorney General of Georgia is the principal proponent of Mr. Parker's execution," said Dunn. "Given that three of the five members of the Board are operating under a conflict of interest - - they are in a position to want to curry favor with their prosecutor or defender from the Attorney General's office. Therefore, Mr. Parker cannot get a fair and impartial clemency hearing." Mr. Parker has requested a clemency hearing before a Board that contains unbiased and conflict-free members.

Parker, who is scheduled to be executed at 7:00p.m.on Tuesday, December 11, 2001, has exhausted all appeals. He has also requested that the Governor of Georgia, Roy Barnes, carry out his statutory duty to remove those members that are "incapacitated" and unable to fairly and impartially decide a clemency application.

While on death row, Parker, who had an 8th grade education, earned a GED and took college level psychology and writing courses.

A number of prominent writers have befriended Parker, including Bettie Sellers, former poet laureate of Georgia, and author Dave Marsh. Parker would become the fourth person executed in Georgia since the use of the electric chair was ruled unconstitutional on October 5, 2001.

United States Court of Appeals
For the Eleventh Circuit

BYRON ASHLEY PARKER, Petitioner-Appellant,
v.
FREDERICK J. HEAD, Respondent-Appellee.

March 15, 2001

Appeal from the United States District Court for the Northern District of Georgia

Before EDMONDSON, CARNES and BARKETT, Circuit Judges.

BARKETT, Circuit Judge:

Byron Ashley Parker appeals the denial of his petition for habeas corpus pursuant to 28 U.S.C. 2254, following his conviction for murder and the imposition of the death penalty. On appeal, Parker argues that he is entitled to relief because:

1. His conviction and sentence were based upon inculpatory statements obtained after he had invoked his right to counsel, in violation of his Fifth and Sixth Amendment rights.

2. He was deprived of his Sixth and Eighth Amendment rights to due process and against cruel and unusual punishment by the improper comments of the prosecutor during closing argument.

3. He was denied his Fifth, Sixth and Fourteenth Amendment rights to due process and a fair and impartial jury by the prejudicial comment of a prospective juror in the presence of other jurors.

4. His trial counsel was ineffective and he was thus deprived of his Sixth Amendment right to effective assistance of counsel when his lawyer:

(a) admitted to the jury that Parker was guilty of capital murder;

(b)failed to obtain or present a competent mental health expert to testify during both phases of the trial;

(c)made prejudicial reference to Parker's possible eligibility for parole if given a life sentence.

PROCEDURAL BACKGROUND

Parker was indicted for the murder, rape and kidnapping of eleven-year-old Christie Ann Griffith. The kidnapping charge was dismissed prior to trial, and the jury found Parker guilty of murder and rape and sentenced him to death.

The jury found three statutory aggravating circumstances supporting imposition of the death penalty under Georgia law: (1) the murder was outrageously or wantonly vile, horrible or inhumane in that it involved torture, depravity of mind or an aggravated battery to the victim; (2) the murder was committed during a rape; and (3) the murder was committed during a kidnapping with bodily injury. On direct appeal, the Georgia Supreme Court reversed Parker's rape conviction and determined that the first two statutory aggravating circumstances were invalid. Parker v. State, 350 S.E.2d 570, 576 (Ga. 1986).

Nonetheless, the court affirmed his murder conviction and sentence, finding that the remaining aggravating circumstance of kidnapping with bodily injury was sufficient to support the death penalty. Id. The Supreme Court denied certiorari as well as a request for rehearing. Parker v. Georgia, 480 U.S. 940, reh'g denied, 481 U.S. 1060 (1987).

On June 24, 1987, Parker filed a petition for writ of habeas corpus with the Superior Court of Butts County, which was denied after an evidentiary hearing. The Georgia Supreme Court denied Parker's timely application for a certificate of probable cause to appeal the state habeas court's judgment and ultimately denied certiorari to review the state habeas court's denial of relief. Parker v. Zant, 519 U.S. 1043 (1996). On November 15, 1996, Parker filed his petition for writ of habeas corpus in federal court, pursuant to 28 U.S.C. 2254, which was also denied. Parker appeals this denial.

BACKGROUND FACTS

On June 1, 1984, Christie Ann Griffith was reported missing from her home in Douglasville, Georgia. During the ensuing investigation, the authorities learned that Parker, a resident of the trailer park where Griffith lived, had been charged with, and acquitted of, the kidnapping and sexual battery of an eight year-old girl in Florida in 1982. Accordingly, agents from the Georgia Bureau of Investigations and the Federal Bureau of Investigations went to Parker's home to question him about the missing girl and his prior arrest record.1

After a second visit, during which Parker signed consent forms to search his home and automobile, the agents asked Parker and his wife to come to the Sheriff's Department for further questioning. Following the interrogations, Parker was asked to take a polygraph examination, and he agreed to do so the next morning.

By the next morning, Parker had changed his mind and, instead of going to the FBI office for the polygraph examination, called an attorney recommended by his wife's employer and arranged to meet him later that day. When the authorities realized that Parker would not appear for the polygraph, they sought and obtained arrest warrants alleging a violation of probation for failure to report to his probation officer and for possession of marijuana which had been found during their search of Parker's car.

Parker was arrested later that day at his place of employment. According to the testimony of Sheriff Lee and Parker's lawyer, the following events then transpired. Upon again being asked to take a polygraph examination, Parker replied that he wished to talk first with his attorney. Arrangements were made for Parker to speak with his attorney at the offices of the FBI prior to the polygraph examination, and Parker did so. His attorney informed Parker that he was not required to take the test and strenuously advised against doing so.

However, Parker insisted on taking the test, believing that if he declined to take it his probation would be revoked because of the marijuana charge, and he indicated to his lawyer that he would pass the test. Parker's counsel did obtain the agreement of the authorities that the polygraph test would be limited to the issue of Parker's knowledge of the whereabouts of Christie Ann Griffith.

Parker's attorney attempted to observe the polygraph but was not permitted to remain in the room and left the building after the authorities indicated that the examination "might take some time." Before leaving, however, Parker's attorney told Sheriff Lee that, whatever the outcome of the test, he wanted to know when it was over and wanted Parker to contact him as soon as the examination had been completed.2

Following the polygraph, the examiner told Sheriff Lee that he wanted to test Parker again the next day, in order to render a complete opinion. He also expressed a belief that Parker knew the location of Christie Griffith's body. Prior to leaving the FBI offices, Parker made a phone call to his attorney but was unable to reach him. Parker then asked to spend the night at home, but this request was denied, and he was transported back to the jail.

After returning to the jail, Parker was again read his Miranda rights, and the interrogation concerning the whereabouts of Christie Ann Griffith continued. Sheriff Lee testified that during the evening both he and Parker again attempted to call Parker's lawyer, but no one answered at either his home or office. Conversely, Parker's lawyer testified that after leaving Parker he had gone out to dinner but had returned home at approximately 10:30 p.m. and had not received any calls or messages until the Sheriff called at 3:30 or 4:00 a.m.

The interrogation of Parker continued past midnight, and shortly after midnight Parker stated that he had killed Christie Ann Griffith, although he denied raping her, and he drew a map showing the location of the body. After a search, the body was found, and both Sheriff Lee and Parker's lawyer agree that the Sheriff then reached Parker's attorney at home between 3:30 a.m. and 4:30 a.m. and informed him that Parker had made a statement admitting that he had killed Griffith. Counsel then told Sheriff Lee that he was no longer representing Parker.

Parker was charged with murder and rape in connection with the death of Griffith and, at a preliminary hearing before Judge Robert James of the Superior Court of Douglas County, Parker asserted his right to counsel. For the next five days, the authorities continued to interrogate Parker in the absence of counsel, up to and including the morning of June 13, just hours prior to the court hearing to appoint new counsel for Parker.

DISCUSSION

Parker's request for federal habeas corpus relief is governed by 28 U.S.C. 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996). Under amended 2254(d), habeas relief from a state court judgment may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. 2254(d). In Williams v. Taylor, 120 S. Ct. 1495 (2000), the Supreme Court clarified the nature of habeas review as set out in Section 2254(d)(1). Writing for a majority of the Court, Justice O'Connor explained that:

Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

120 S.Ct. at 1523. The Supreme Court rejected the restrictive "reasonable jurist" standard adopted by this court in Neelley v. Nagle, 138 F.3d 917, 924-25 (11th Cir. 1998), cert. denied, 525 U.S. 1075 (1999), and concluded that federal habeas relief would be available under the "unreasonable application" standard only if the state court's application of clearly established federal law was "objectively unreasonable." Williams, 120 S.Ct. at 1521- 22.

As to findings of fact under 28 U.S.C. 2254(d)(2), federal courts determine whether the state court's finding was based on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. 2254(d)(2). A state court's determinations of fact shall be "presumed to be correct," and the habeas petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. 2254(e)(1). See Hauser ex rel. Crawford v. Moore, 223 F.3d 1316, 1323 (11th Cir. 2000). However, the statutory presumption of correctness applies only to findings of fact made by the state court, not to mixed determinations of law and fact. McBride v. Sharpe, 25 F.3d 962, 971 (11th Cir. 1994).

As to the district court's findings of fact, they are reviewed under the clearly erroneous standard. Cunningham v. Zant, 928 F.2d 1006, 1011 (11th Cir. 1991). Mixed questions of law and fact are reviewed de novo, as are questions of law. Jacobs v. Singletary, 952 F.2d 1282, 1288 (11th Cir. 1992). It is under this framework that we review Parker's claims.

1. Were Parker's rights under the Fifth and Sixth Amendments violated by the admission of evidence of statements obtained after Parker allegedly asked for assistance of counsel?

A. Violation of the Fifth Amendment and the rule of Edwards v. Arizona

Parker asserts that he is entitled to habeas relief because his conviction was based on statements obtained in violation of his rights under the Fifth Amendment. Specifically, Parker contends that his confession after returning to jail from the polygraph examination should have been suppressed because the sheriff continued to interrogate him after he invoked his right to counsel.

In Edwards v. Arizona, the Supreme Court held that an accused, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." 451 U.S. 477, 484- 85 (1981).

There is no question, as the Georgia Supreme Court found, that "[p]lainly, [Parker] invoked his right to counsel prior to taking the polygraph examination." Parker v. State, 350 S.E.2d at 573. Likewise it is clear that Parker, disregarding his lawyer's advice, voluntarily took the polygraph examination. Id. The Georgia Supreme Court ruled as follows:

The real question here is whether Parker re-invoked his right to counsel after the completion of the examination. If he did, then further interrogation would be barred, unless initiated by Parker. It is undisputed that Parker and the sheriff tried to contact Parker's attorney after the completion of the examination, in compliance with the attorney's request.

The question is whether Parker thereby expressed a desire to deal with the law enforcement officers only through counsel, and to remain free of further interrogation until he had an opportunity to talk with his attorney. We find that Parker did not unambiguously and unequivocally assert such a desire.

Parker, 256 Ga. at 546-47 (emphasis in original). Under Williams v. Taylor, we must defer to the Georgia Supreme Court's conclusions unless we find that the state court adjudication of this claim was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court. 120 S. Ct. at 1523.

Specifically, we review to determine whether the Georgia Supreme Court's ruling that Parker did not re-invoke his right to counsel - subsequent to expressly waiving his right to remain silent after consultation with his lawyer - was contrary to, or an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court. Id. at 1506.

The Supreme Court has held that "when counsel is requested, interrogation must cease and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney." Minnick v. Mississippi, 498 U.S. 146 (1990); Arizona v. Roberson, 486 U.S. 675 (1988).

The government does not contest the applicable law. Rather the government argues that there is no record evidence factually supporting Parker's argument that, after agreeing to answer questions at the polygraph examination regarding Christy Griffith's disappearance, he reinvoked his right to counsel or his right to remain silent.

The government accurately notes that throughout the history of this case the only evidence presented regarding counsel and what attempts were made to request counsel, was the testimony of Sheriff Lee, Agent Ingram, and Agent McGinnis. None of these witnesses testified that Parker ever requested counsel or asserted his right to remain silent.

On the contrary, each testified that Parker was advised of his Miranda rights on several occasions and voluntarily continued to speak with the police officers and agents. Throughout all of the state and federal proceedings, neither Parker3 nor anyone else has testified that Parker asked for counsel after the polygraph4 or did not knowingly, freely, and voluntarily speak to the sheriff or the agents.

Nonetheless, Parker argues that Sheriff Lee's testimony that he as well as Parker tried to call Parker's lawyer suffices to prove Parker's affirmative request for counsel. While it is arguable that the attempted calls could have been the result of a request for counsel, any facts leading to the attempted calls are absent from the record.

Mindful that on habeas Parker has the burden to rebut by "clear and convincing evidence" the presumption that a state court's fact findings are correct, see 28 U.S.C. 2254(e)(1), and given the absence of clear and convincing evidence that Parker re-invoked his right to counsel, we cannot say that the Georgia trial court's findings resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at trial, or that the Georgia Supreme Court's decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court.

B. Violation of the Sixth Amendment and the rule of Michigan v. Jackson

Parker additionally asserts that the admission of Parker's statements to police on June 13, 1984, which provided support for the aggravating circumstance of kidnapping with bodily injury, violated his rights under Michigan v. Jackson, 475 U.S. 625 (1986), as the statements were elicited after adversarial judicial proceedings had been initiated and he had invoked his right to counsel.

The Supreme Court has held that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." Id. at 637. At his court hearing on June 8, 1984, Parker advised the state judge that he wanted the assistance of counsel and requested that one be appointed for him.

However, a new attorney for Parker was not appointed until June 13, and Sheriff Lee questioned Parker "12 to 15 times" in the interim. Notwithstanding this apparent violation of the Sixth Amendment, the state habeas court determined that this claim was procedurally barred because Parker failed to raise it at the trial level or on direct appeal.

The district court found that Parker's claim centering around the June 8 hearing was not raised on direct appeal and was therefore barred under state law. Parker v. Turpin, 60 F. Supp.2d 1332, 1367-68 (N.D.Ga. 1999) (hereinafter Parker II). Parker argues that his claim is not procedurally barred as the Georgia Supreme Court specifically addressed it on the merits by expressly holding that there was "no Sixth Amendment error." Parker, 350 S.E.2d at 574.

Alternatively, Parker argues that, even if his claim is deemed defaulted, a procedural default can be excused - and therefore a federal habeas court may address the merits of a defaulted claim - if either (1) there was cause for, and prejudice from, the default; or (2) failure to entertain the claim would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 729-31, 11 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Murray v. Carrier, 477 U.S. 478, 485 (1986); Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Such a fundamental miscarriage of justice has been deemed to be the imposition of a death sentence upon an individual who, but for the claimed violation, would not have been eligible for the death penalty under applicable law. Sawyer v. Whitley, 505 U.S. 333, 345-47 (1992); Murray, 477 U.S. at 496.

Parker argues that if there is procedural default it should be excused, as the failure to entertain this claim would result in a fundamental miscarriage of justice because without his improperly obtained statement regarding the kidnapping with bodily injury he would not have been eligible for the death penalty. Parker argues that the inculpatory statement made during the June 13 interrogation is the only evidence supporting the one remaining statutory aggravating circumstance - kidnapping with bodily injury.

It is unnecessary to decide whether or not Parker's Sixth Amendment claim was procedurally defaulted because his claim is unavailing in either case. If it was not procedurally barred, we cannot say that the Georgia Supreme Court's rejection of Parker's Sixth Amendment claim was contrary to, or an unreasonable application of, clearly established Supreme Court precedent in light of Parker's earlier confession and other evidence surrounding the rape and death of Griffith, which provided support for the aggravating circumstance without the June 13th statement. For the same reason we cannot say that if his claim were procedurally barred, failure to entertain the claim would result in a fundamental miscarriage of justice.

2. Prosecutorial misconduct during closing arguments

The reversal of a conviction or a sentence is warranted when improper comments by a prosecutor have "so infected the trial with unfairness as to make the resulting conviction [or sentence] a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).

Parker suggests that such improper comments were made in this case and that the Georgia Supreme Court's determination that the comments in question did not warrant reversal was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. Parker asserts that the prosecutor injected improper comments in two instances during closing argument: (1) urging the jury to penalize Parker for exercising his constitutional rights by comparing Parker's rights to the "rights" he allegedly denied to his victim; and (2) suggesting to the jury that mental illness could not be considered mitigating.

Having reviewed the totality of the prosecutor's closing arguments, we cannot say that the Georgia Supreme Court's determination that the prosecutor's comments raise "no improprieties so serious as to require the reversal of this case in the absence of any timely objection to the state's argument" constitutes a decision that was contrary to, or an unreasonable application of, clearly established federal law.

3. Was the jury tainted when 11 of 12 jurors heard a reference to Parker's involvement in a previous incident?

Parker next asserts that he was denied his Fifth, Sixth and Fourteenth Amendment rights to due process and a fair and impartial jury when, in the presence of 11 of the 12 individuals who eventually served on Parker's jury, one prospective juror stated that he had heard that Parker had been "released from a similar situation somewhere" - allegedly a reference to Parker's prior acquittal on charges of choking and molesting a young girl in the State of Florida. The relevant colloquy between defense counsel and the juror is as follows:

Q:Did you read anything in the Neighbor or the Constitution or the Journal about this case?

A: Yeah.

Q: Can you recall specifically what you remember?

A: Not particularly. I can, you know, I have a vague recollection.

Q: Can you tell me what that vague recollection is?

A: Okay. I remember the little girl going missing. And then I remember being arrested, the, you know -

Q: Mr. Parker?

A: Mr. Parker, okay. And I remember that he had been released from a similar situation somewhere in -

Q: All right. Now if you would stop there for a moment.

Parker claims that this information was misleading and inherently prejudicial, since it implied that he was a repeat offender and the jury was not told he was acquitted of any wrongdoing in that incident.

The Supreme Court has held that a defendant has the right to trial by an impartial jury and that, "[i]n the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the `evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel." Turner v. Louisiana, 379 U.S. 466, 472- 73 (1965). To safeguard a defendant's constitutional rights, the exposure of a jury to extrinsic information has been "deemed presumptively prejudicial." Remmer v. United States, 347 U.S. 227, 229 (1954).5

However, the Supreme Court held that this presumption can be rebutted by demonstrating that the juror's exposure to the information was "harmless to the defendant," and that a trial court "should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate." Id. at 229-30.6

In this case the Georgia Supreme Court found no prejudice because of the remedial action taken by the trial court, including specifically questioning jurors to ensure that none of them were influenced by the venireman's comments and appropriately instructing the jury. Based on the record before us, we cannot say that the state court's adjudication of this claim was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.

4.Ineffective assistance of counsel claims

Under Strickland v. Washington, 466 U.S. 668 (1984), a habeas petitioner is entitled to relief when counsel's performance falls below an objective standard of reasonableness, and there is a reasonable probability that, but for counsel's errors and omissions, the result of the proceedings would have been different. Id. at 687. Parker argues that his counsel rendered ineffective assistance of counsel in three different circumstances during the trial: (1) counsel unreasonably told the jury in argument that Parker was guilty of murder; (2) counsel unreasonably failed to obtain and present a competent mental health expert at both phases; and (3) counsel unreasonably injected parole eligibility into the trial.

A. Defense counsel's statements conceding Parker's guilt

The state habeas court concluded that the evidence failed to support Parker's claim of ineffective assistance of counsel, given counsel's testimony that the concession during opening statement and closing argument was a strategic decision made in consultation with Parker and in light of Parker's admissible confession, in order to maintain credibility with the jury for sentencing purposes.

Additionally, the district court concluded that Parker had not shown actual prejudice from counsel's arguments, in that he had not established a reasonably probability that, "in light of the overwhelming evidence against Parker including his confession," the result of the proceedings would have been different had counsel not conceded Parker's guilt. On the evidence presented to the state court, we cannot say that the state court's decision was contrary to, or an unreasonable application of, the Strickland standard, or that the district court erred in concluding that Parker failed to show the prejudice required under Strickland.

B. Defense counsel's failure to obtain and present competent mental health expert

We likewise find that, on the record before the state habeas court, it cannot be said that the state court's conclusion that the evidence failed to support Parker's claim of ineffective assistance of counsel for failure to obtain and present a competent mental health expert at both phases of the trial was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. Upon a review of the record, we agree with the district court that Parker has failed to demonstrate the prejudice required under Strickland to support a claim of ineffective assistance of counsel.

C. Defense counsel unreasonably injected parole eligibility into the trial

Finally, Parker claims that defense counsel improperly injected the topic of Parker's possible eligibility for parole into the jury's sentencing deliberations. Defense counsel on direct examination had sought to elicit testimony that a person like Parker would not be paroled for at least 40 years if given a life sentence instead of the death penalty. While the witness testified to this, he also testified, on both direct and cross-examination, that in Georgia a person given a life sentence is eligible for, but would not necessarily be granted, parole after serving seven years.

The state habeas court found no constitutional error. Upon a review of the record, we cannot say that Parker has produced sufficient evidence to demonstrate that there is a reasonable probability that, but for counsel's actions in this regard, the result of the proceedings would have been different. Strickland, 466 U.S. at 668. Accordingly, as Parker has not established that he was prejudiced by counsel's errors, we cannot find that the state court's adjudication of this claim was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.

Accordingly, for all of the foregoing reasons, the district court's denial of Parker's petition for writ of habeas corpus is

AFFIRMED.

*****

NOTES:

In addition to the Florida incident, Parker had pled guilty to "making terroristic threats" to two women in Fulton County, Georgia, two weeks prior to the disappearance of Griffith, and had been sentenced to five years probation.

Parker's attorney gave his home and office telephone numbers to Sheriff Lee and to Parker.

Although Parker submitted an affidavit in the state habeas corpus hearing, he did not refer to this issue in the affidavit.

Although it could be argued that Parker executed only a limited waiver at the polygraph examination because his lawyer and the authorities agreed to limit the questions to a specific subject matter, such an argument is unavailing because the subject matter about which Parker agreed to respond to questioning was the disappearance of Christy Griffith.

The district court conceded that the "information may have resulted in some prejudice because such information would have been inadmissible at trial." Parker II, 60 F.Supp.2d at 1380.

In a subsequent case, the Supreme Court noted that "the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias." Smith v. Phillips, 455 U.S. 209, 215 (1982). The Sixth and Ninth circuits have held, at least in part, that Phillips abandoned Remmer's presumption of prejudice. See United States v. Sturman, 951 F.2d 1466, 1478 (6th Cir. 1991) cert. denied, 112 S. Ct. 2964 (1992); United States v. Madrid, 842 F.2d 1090, 1093 (9th Cir.) cert. denied, 488 U.S. 912 (1988). Other circuits have rejected this theory. See Stockton v. Virginia, 852 F.2d 740, 744 (4th Cir. 1988), cert. denied, 489 U.S. 1071 (1989); United States v. Butler, 822 F.2d 1191, 1195 n.2 (D.C. Cir. 1987) (listing the Fourth, Fifth, Seventh, Eighth, Ninth and Tenth Circuits as continuing to apply Remmer). We need not decide that issue here, because even assuming Remmer's presumption of prejudice still applies, we cannot say that habeas relief was improperly denied in this case.