by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit held that the state courts’ application of Ohio Rules of Evidence 606(B) constituted constitutional error, providing an avenue for federal habeas corpus relief.

After Abulay Nian was convicted of rape in an Ohio court, he moved for a new trial when he discovered a juror said that information not admitted into evidence during the trial about him was brought into the deliberations by another juror and likely influenced the other jurors’ decision to convict him. One of these issues was about Nian’s prior criminal record. He then filed a motion for a new trial, attaching the juror’s affidavit. The trial court held an evidentiary hearing but excluded the juror’s testimony regarding alleged juror misconduct pursuant to Ohio Rule of Evidence 606(B), which was affirmed on appeal.

After his state appeals were exhausted, Nian filed a habeas corpus petition in federal court, under 28 U.S.C. § 2254, claiming that the State violated his Sixth and Fourteenth Amendment rights by not granting him a new trial after the jurors had considered extraneous evidence not presented in court to convict him. The U.S. District Court for the Southern District of Ohio, however, found that Nian failed to show the state court “unreasonably applied clearly established federal law” and denied his petition. He appealed.

After finding that Nian “fairly presented” his claim to each level of the state courts, the Court had to determine whether the state courts reached the “merits” of his claim. This was a “crucial threshold question,” the Court explained, because if the state court failed to reach the merits, then the standard of review was wholly different—and less harsh because under § 2254(d)(1), imposed by the Antiterrorism and Effective Death Penalty (“AEDPA”), a federal court must give deference to a state-court decision that reaches the merits of a claim.

However, the Court determined that Rule 606(B) prevented the state courts from ruling on the merits of Nian’s claim. “Neither the trial court nor the Ohio Court of Appeals reached the ‘intrinsic rights and wrongs … as determined by matters of substance’ of Nian’s Sixth Amendment claim because Ohio Rule of Evidence 606(B) required that the juror’s testimony be excluded,” the Court said. Johnson v. Williams, 568 U.S. 289 (2013). “Therefore, we hold that the state court did not actually adjudicate Nian’s claim on the merits and that AEDPA deference does not apply.” Consequently, the Court explained that the pre-AEDPA standard of review applies in which it reviews “questions of law de novo and questions of fact for clear error.” Evans v. Hudson, 575 F.3d 560 (6th Cir. 2009).

With the threshold issues resolved, the Court turned its attention to the issue of Nian’s Sixth Amendment claims that “his constitutional rights were violated when a juror introduced extraneous information, including his criminal record, into deliberations” and that “the state court committed constitutional error when it excluded [the juror’s] testimony about the juror misconduct under” Rule 606(B).

Rule 606(B) states that “A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear on any juror, only after some outside evidence of that act or event has been presented.” [Note that Federal Rule of Evidence 606(b)(2)(A) does not require “outside evidence” in order for a juror to testify about “extraneous prejudicial information.”]

The Sixth Circuit has previously dealt with this issue in a factually similar case. In Doan v. Brigano, 237 F.3d 722 (6th Cir. 2001) (abrogated on other grounds by Wiggins v. Smith, 539 U.S. 510 (2003)), the Court held that Rule 606(B) “effectively denied Doan the opportunity to show a violation of his Sixth Amendment and Fourteenth Amendment rights to confront the evidence and the witnesses presented against him, as well as his right to a jury that considers only the evidence presented at trial.”

However, citing two subsequent Sixth Circuit decisions, the State argued that Doan is no longer good law. The Court summarily rejected the State’s argument, explaining that the two cases cited are distinguishable from Doan and the present case based on the fact the cited cases involved “internal factors that affected the jury, rather than extraneous influences.” The Court stated that the distinction is determinative because in the absence of extraneous influences, “courts will not intrude into matters internal to jury deliberations.” Fletcher v. McKee, 355 Fed. Appx. 935 (6th Cir. 2009). Consequently, the Court reaffirmed that Doan remains “good law” in the Sixth Circuit and held that the same constitutional error present in Doan was committed in the present case, i.e., trial court’s failure to protect the constitutional right to a fair trial.

Because the state court failed to reach Nian’s actual Sixth Amendment claim due to Rule 606(B), the Court reviewed his claim under the much more lenient harmless-error standard, rather than in accordance with ADEPA. The Court noted that the U.S. Supreme Court has ruled that a jury’s knowledge of a defendant’s past criminal record is prejudicial and denies him a “fair opportunity to defend against a particular charge.” Michelson v. United States, 335 U.S. 469 (1948). The Sixth Circuit’s position is the same as that of the Supreme Court. In re Beverly Hills Fire Litig., 695 F.2d 208 (6th Cir. 1982).

“There is a reasonable probability that if a juror discussed Nian’s criminal record during deliberations, that constitutional violation ‘affected or influenced the verdict,’” the Court reasoned. Mitzel v. Tate, 267 F.3d 524 (6th Cir. 2001). Thus, the Court concluded that “the state court’s constitutional error was not harmless.”

Accordingly, the Court reversed the district court’s denial of habeas relief and conditionally granted the petition with instructions for the state court to conduct a “proper hearing” on whether a new trial is warranted. The Court further instructed that the state court “shall not apply” Rule 606(B) “in a manner inconsistent with this opinion.” See: Nian v. Warden, 994 F.3d 746 (6th Cir. 2021). 

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