DAVID WAYNE ALLEN, Petitioner-Appellant, v. BETTY MITCHELL, Warden, Respondent-Appellee.
No. 02-4145
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: October 15, 2019; Decided and Filed: March 24, 2020
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 20a0089p.06. Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 99-01067—Paul R. Matia, District Judge. Before: SILER, MOORE, and BUSH, Circuit Judges.
COUNSEL
ARGUED: John J. Ricotta, Cleveland, Ohio, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: John J. Ricotta, Cleveland, Ohio, Henry J. Hilow, Cleveland, Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
BUSH, J., delivered the opinion of the court in which SILER, J., joined. MOORE, J. (pp. 12–22), delivered a separate opinion concurring only in the judgment.
JOHN K. BUSH, Circuit Judge. David Wayne Allen was convicted of aggravated robbery and aggravated murder in 1991. He was sentenced to death. Allen’s present appeal seeks review of the district
I.
David Wayne Allen was convicted of aggravated robbery and aggravated murder for the death of 84-year-old Chloie English, whom he knew through a prison ministry program. English was found stabbed, beaten, and strangled to death in her home. Allen’s thumbprint was found on the inside of one of the lenses of England’s glasses, and cigarette butts consistent with Allen’s brand (Dorals) and saliva (type O secretor) were found in English’s trash can. The coroner put English’s time of death at between midnight and six a.m. on January 25, 1991. A bus driver remembered picking up Allen near English’s home a little after six in the morning on that same date. Later that year Allen was convicted of all charges and sentenced to death. The Ohio Court of Appeals affirmed Allen’s convictions and sentence in 1993, State v. Allen, No. 62275, 1993 WL 366976 (Ohio Ct. App. Sept. 9, 1993), and the Ohio Supreme Court affirmed in 1995, State v. Allen, 653 N.E.2d 675 (Ohio 1995). The Ohio Supreme Court denied Allen’s application to reopen his direct appeal. State v. Allen, 672 N.E.2d 638 (Ohio 1996) (per curiam). Allen filed a petition for post-conviction relief in September 1996. The trial court denied the petition without an evidentiary hearing, and the Ohio Court of Appeals affirmed. State v. Allen, No. 72427, 1998 WL 289418 (Ohio Ct. App. June 4, 1998).
Allen first filed a petition for a writ of habeas corpus in 1999. The district court denied the petition in 2002, and granted Allen a certificate of appealability as to his claim that a biased juror served on the jury. In April 2006, Allen filed a motion to hold briefing in abeyance pending the completion of DNA analysis. This court granted the motion. The state court proceedings concluded in 2017, when the Ohio Supreme Court denied review of the denial of Allen’s motion for a new trial. State v. Allen, 82 N.E.3d 1175 (Ohio 2017) (table).
We denied Allen’s motion to expand the certificate of appealability to include a Brady claim and a claim for ineffective assistance of counsel. We also denied Allen’s petition for rehearing, and set a briefing schedule. Allen v. Mitchell, 757 F. App‘x 482 (6th Cir. 2018).
Allen’s habeas petition now before us alleges that he was denied the right to a fair trial and due process of law because Patricia Worthington, one of the jurors who sat at his capital trial, initially indicated during voir dire that she was not sure that she could be fair and impartial. To address Allen’s argument, we review the full context of Worthington’s statements to the trial court.
Before voir dire, the trial court told prospective jurors to let the bailiff know if they had a specific problem with serving on the jury. Worthington told the trial court her brother had been shot and killed two years earlier. The trial court explained that it was inquiring about issues like physical disabilities or other reasons someone
The trial court then conducted a general voir dire to determine if any potential jurors had any moral or philosophical beliefs that would impair their ability as jurors at the sentencing phase. When Worthington was called, the trial court asked her if she had “any philosophical, moral, or religious beliefs that would prevent or substantially impair her ability to accept the court’s instructions of law with regard to sentencing,” and, if Allen was convicted, to recommend the death penalty, or life imprisonment without parole for twenty or thirty years. Worthington responded no to this inquiry.
However, during her individual voir dire, Worthington initially expressed some hesitation as to whether she could be an impartial juror. She told the trial court that the man charged with murdering her brother was acquitted and she did not feel justice was done. She agreed with the trial court’s suggestion that she had some feelings of bitterness and resentment because of the outcome of the trial. The trial court asked her if she could set aside those feelings and reach a verdict based solely on the evidence that came out in open court, and Worthington said she could.
She also disclosed that two of her friends were police officers, and that she got to know a detective and the prosecutor from her brother’s case. The detective and the prosecutor from her brother’s case kept in contact with her mother. Worthington told the prosecutor she would try to set aside the experience of her brother’s case and evaluate Allen’s case solely on the evidence, follow the law as instructed, and come to a fair and impartial verdict. Allen’s counsel stated that witnesses from the coroner’s office who testified at her brother’s trial would testify at Allen’s trial, and asked Worthington whether she would be able to hold back an emotional response to their testimony. Worthington said she did not know whether she could, because her brother’s trial was too recent. She agreed that she was a little bit anxious but denied that her reaction to hearing some of the same kind of evidence from some of the same witnesses might substantially impact her ability to concentrate on Allen’s case.
Allen—who had exhausted the last of his peremptory strikes—challenged Worthington for cause. He argued that, because the trial of the person accused of murdering her brother was close in time to Allen’s trial and Worthington was familiar with the witnesses and type of testimony, she would be emotionally involved and was not detached. The trial court found that Worthington “unequivocally stated that she could be fair and impartial. . . . [T]he jury [sic] was very straightforward. She understands the responsibility here and I don’t see a problem with her serving.” R. 189-15, at *219. The trial court denied Allen’s motion, and Worthington was called to fill the twelfth spot on the jury.
The Ohio Supreme Court, in a four-to-three ruling, affirmed the trial court’s decision to seat Worthington. Allen, 653 N.E.2d at 681. The court held that the trial court’s finding that Worthington was unbiased was supported by her testimony, and that the trial court could legitimately validate her statements because it saw and heard her. Id. Three justices dissented, asserting that Worthington should have been excused for cause. Id. at 691–92 (Wright, J., dissenting).
The district court denied Allen’s habeas claim on the merits. The court found that Worthington showed some reluctance about being a juror, but stated repeatedly that her brother’s murder and trial would
II.
We review a district court’s denial of a habeas petition de novo. See Cleveland v. Bradshaw, 693 F.3d 626, 631 (6th Cir. 2012). The district court’s findings of fact are reviewed for clear error, and its legal conclusions on mixed questions of law and fact are reviewed de novo. See Gumm v. Mitchell, 775 F.3d 345, 359–60 (6th Cir. 2014). “[T]he habeas petitioner has the burden of rebutting, by clear and convincing evidence, the presumption that the state court’s factual findings were correct.” Henley v. Bell, 487 F.3d 379, 384 (6th Cir. 2007) (citing
We review this case through two deferential lenses. First, because the determination of juror impartiality is “essentially one of credibility, . . . the trial court’s resolution of such questions is entitled . . . to special deference.” Patton v. Yount, 467 U.S. 1025, 1038 (1984) (internal quotations omitted). Second, review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, if a state court has adjudicated the petitioner’s claims on the merits, a writ of habeas corpus may not be granted unless the state court’s adjudication of the claim
- resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
- resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
“For purposes of
Further, state-court factual determinations must stand unless they are objectively unreasonable in light of the evidence presented in state court.
III.
Allen makes two arguments as to why he is entitled to habeas relief. First, he asserts that the trial court’s decision to empanel juror Worthington deprived him of his Sixth Amendment right to a trial by an impartial jury. Second, he maintains that his Sixth Amendment right to a trial by an impartial jury was violated because the trial court failed to ask constitutionally compelled questions during Worthington’s voir dire. We address each argument in turn.
A.
The Sixth Amendment grants criminal defendants “[a] right to a speedy and public trial, by an impartial jury. . . .”,
Although jurists on the Ohio Supreme Court disagreed on the issue of whether Worthington should have been seated as a juror, we cannot say that the decision of the majority of the Ohio Supreme Court was based an unreasonable application of clearly established law or an unreasonable determination of the facts under the AEDPA standard. It is arguable that the trial court may have overstated Worthington’s testimony when it found that she unequivocally stated that she could be fair and impartial. Her responses were somewhat unclear and equivocal, and she expressed dissatisfaction with the result of her brother’s murder trial. Worthington noted that she got to know a detective and a prosecutor from her brother’s case, and that the detective and prosecutor
Even when a potential juror’s statements during voir dire are ambiguous, we still defer to the trial court’s ruling in the absence of clear record evidence to the contrary. See Patton, 467 U.S. at 1039–40 (noting that “while the cold record arouses some concern, only the trial judge could tell which of these answers was said with the greatest comprehension and certainty”). It was not unreasonable for the Ohio Supreme Court to accord such deference in Allen’s case.
In White v. Mitchell, we granted a writ of habeas corpus when a state court failed to strike a juror who, although she affirmed that she could be impartial, was nonetheless “unable to lay aside her impression or opinion and render a verdict based on the evidence presented in court.” 431 F.3d 517, 542 (6th Cir. 2005) (cleaned up). Though the juror constantly used words such as “fair,” “truth,” and “honesty,” that alone did not make her an impartial juror when the totality of the circumstances suggested that she “had a strong inclination toward imposing the death penalty, . . . [and] that she was looking forward to participating in the imposition of this particular defendant’s sentence.” Id. at 541–42. Notwithstanding the deference we normally afford to trial judges, there the transcript revealed that the juror was “simply unbelievable as an impartial juror.” Id. at 542. The transcript reflected “internally inconsistent and vacillating” statements, “including statements of strong doubt regarding impartiality and merely a few tentative or cursory statements that she would be fair.” Id.
By contrast, here, nothing in the record indicates any bias against the defendant. The record shows that Worthington was truthful in her responses. Though she was certainly hesitant and sometimes equivocal in her answers, her voir dire revealed a juror who thought through her views aloud and, in the end, stated that she could be a fair and impartial juror. Without anything in the record clearly demonstrating Worthington’s inability to act impartially, or raising serious concerns about whether her statements of impartiality should be believed, we must defer to the trial court. Wainwright, 469 U.S. at 426. Indeed, in order to grant a writ, a habeas court must conclude that the trial court’s credibility findings “lacked even fair support in the record.” Patton, 467 U.S. at 1037 (cleaned up). And Worthington stated time and time again that she could be a fair and impartial juror. See, e.g., Miller v. Francis, 269 F.3d 609, 618–19 (6th Cir. 2001) (noting that “the trial court cannot be faulted for not disqualifying for cause a juror who consistently says she thinks she can be fair”). The Ohio Supreme Court determined on direct appeal: “[T]he trial court found Worthington unbiased, a finding supported by Worthington’s testimony. Allen argues that the juror’s belief in her own impartiality is insufficient support, but the trial court saw and heard Worthington and could legitimately validate her statements.” State v. Allen, 653 N.E.2d 675, 681 (Ohio 1995).
The Ohio Supreme Court’s ruling—that the trial court did not abuse its discretion
B.
Allen also claims that the trial court’s voir dire of Worthington was inadequate because the trial court failed to ask her how the trial concerning her brother’s murder would affect her ability to follow the court’s instructions impartially, evaluate the evidence, and impose the death penalty. He contends that a reasonable jurist would suspect that Worthington had the potential to seek vengeance for her brother’s murder, and possibly be an “automatic death penalty juror.” Pet’r Br. at 8. Allen, however, did not raise this argument on direct appeal to the Ohio Supreme Court, nor did he raise it in his habeas petition.
Principles of comity require that we not seek to upset a state court conviction on the basis of an alleged constitutional violation that the state court never had an opportunity to correct. See Rose v. Lundy, 455 U.S. 509, 518 (1982). “Accordingly, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.” Lyons v. Stovall, 188 F.3d 327, 331–32 (6th Cir. 1999) (quoting Picard v. Connor, 404 U.S. 270, 276 (1971)). “[I]f an unexhausted claim would be procedurally barred under state law, that claim is procedurally defaulted for purposes of federal habeas review.” Awkal v. Mitchell, 613 F.3d 629, 646 (6th Cir. 2010) (en banc) (quoting Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002)). Allen never argued before the state courts that the trial court’s voir dire of Worthington was inadequate because it failed to ask a constitutionally compelled question. Though this argument is defaulted, in any event we find it would be meritless.
An adequate voir dire to identify unqualified jurors is integral to the right to trial by an impartial jury. See Morgan, 504 U.S. at 729. When a state court refuses to pose “constitutionally compelled” questions, the voir dire is inadequate and merits habeas relief. Mu‘Min v. Virginia, 500 U.S. 415, 425–26 (1991). “Questions are constitutionally compelled only if ‘the trial court’s failure to ask these questions . . . render[s] the defendant’s trial fundamentally unfair.” Hodges v. Colson, 727 F.3d 517, 527 (6th Cir. 2013) (quoting Mu‘Min, 500 U.S. at 425–26).
Allen has not shown that his trial was fundamentally unfair because of the trial court’s failure to ask how her brother’s trial would impact her ability to impose the death penalty. The trial court asked Worthington whether she could set aside her feelings from her brother’s case and reach a verdict based solely on the evidence that came out in open court. She said she could. The trial court asked Worthington
IV.
For these reasons, we AFFIRM the district court’s judgment denying Allen’s petition for a writ of habeas corpus.
DAVID WAYNE ALLEN, Petitioner-Appellant, v. BETTY MITCHELL, Warden, Respondent-Appellee.
No. 02-4145
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
March 24, 2020
CONCURRING IN THE JUDGMENT
KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I agree that we must affirm the district court’s denial of petitioner David Allen’s
In a case that turns upon a juror’s voir dire responses, it is crucial to provide the responses themselves. The relevant exchanges between the trial court, the prosecution, and the defense with Worthington, therefore, are provided here.
Allen was tried and sentenced in June and July 1991. Once the prospective jurors were duly sworn, the state trial court invited them to come forward with “specific,” “personal problem[s] with regard to jury service,” which the trial court meant to refer to disabilities, work conflicts, and prearranged trips. See R. 189-14 (Voir Dire Tr. at 130–45). At this time, Worthington came forward:
The Court: Mrs. Worthington, you’ve indicated you have some problem with service. Could you tell us about that?
Ms. Worthington: Well, I didn’t know it was a criminal case. My brother, he was shot and killed about two years ago in the middle of the street on 75th and Kinsman.
The Court: Okay. Right now we’re dealing with issues relating to people who have a physical disability or some type of reason why they can’t serve. Those issues we’ll address in general voir dire.
Ms. Worthington: Okay.
The Court: Okay. Thank you.
During general voir dire, the twelfth juror was stricken upon Allen’s last peremptory challenge, and the trial court began to question Worthington. R. 189-15 (Voir Dire Tr. at 449). Eventually, the murder of Worthington’s brother was addressed.
The Court: Have you, your family members, or close friends ever been the victim of a crime or accused of a crime?
Ms. Worthington: Yes.
The Court: And could you tell me about that?
Ms. Worthington: My brother was shot and killed at 75th and Kinsman in 1986.
The Court: Was anyone ever arrested or prosecuted for that offense?
Ms. Worthington: Yes.
The Court: What’s your brother’s name?
Ms. Worthington: Stephen Rogers.
The Court: Was there a trial held with regard to that shooting?
Ms. Worthington: Yes.
The Court: Were you called as a witness in any way with regard to that case?
Ms. Worthington: No. But I was in court every day.
The Court: Do you feel that justice was done during the course of that case?
Ms. Worthington: No.
The Court: Would it be fair to say that you have some feelings of bitterness and resent[ment] because of the outcome of that trial and what happened in that case?
Ms. Worthington: Yes. Because he was found not guilty.
The Court: I certainly understand your feelings about that particular case and I feel very sorry for you and your family. Do you think you can set aside those feelings of bitterness from your experiences there and evaluate this defendant and reach a verdict with regard to this defendant based solely on the evidence that comes out in open court?
Ms. Worthington: Yes. Because the prosecution did everything that they could.
The Court: You’re talking about your other case?
Ms. Worthington: Yes, my brother’s.
The Court: And I’m sure counsel for the defense will ask you some questions in this area, as well. And it’s very hard to get 100 percent assurance on anything, but you understand how important it is at this time to let us know if you can’t do this.
Ms. Worthington: Yes.
The Court: And you’ll let me know or the prosecutor or the defense attorney if you feel you’re not up to serving on this particular case?
Ms. Worthington: Yes.
The Court: I’m not trying to browbeat you one way or the other. Okay?
Ms. Worthington: Okay.
Id. at 450–53. Worthington also stated that she had two friends who were Cleveland police officers and that she knew the detective and prosecutor in her brother’s case. Id. at 453–54.
After this exchange, the prosecution and the defense questioned Worthington. The following questions and answers are between the prosecutor and Worthington:
[Prosecutor]: And from what I understood you to say to the Judge was that in spite of what happened back in –was it [19]86?
Ms. Worthington: [19]88.
[Prosecutor]: [19]88. In spite of what happened there, that you will make every effort as humanly possible to set aside that experience and judge this
case solely on whatever evidence is here. You’ll forget what took place in the courtroom then and rely only on what takes place in the courtroom now; is that correct? Ms. Worthington: Yes.
[Prosecutor]: And in doing so, you could follow the law that Judge Cleary will tell you the law is in this case, apply it to the evidence that you have heard in the courtroom, and come to what in your mind will be a fair and impartial verdict; you can do that?
Ms. Worthington: Yes.
Id. at 455–56. The prosecution did not challenge Worthington for cause. Id. at 456.
The defense then questioned Worthington, starting with her relationship with her two police-officer friends. At the time, Worthington had known these officer friends for ten years. Id. at 456–57. Worthington further stated that the prosecutor and detective in the trial for her brother’s murder continued to check up on her mother. Id. at 457–58. In response to defense counsel’s later question whether her “mother lives someplace nearby,” Worthington answered, “[y]es.” Id. at 461. And in response to whether Worthington “ha[s] regular contact with her [mother],” Worthington answered, “[o]h, every day.” Id. at 461–62.
Defense counsel also addressed the issue of Worthington’s brother’s murder and the subsequent trial:
[Defense counsel]: You say you were down here every day during that trial.
Ms. Worthington: Yes.
[Defense counsel]: And you watched all the testimony?
Ms. Worthington: Yes.
[Defense counsel]: Obviously this is a different case. There’s going to be different testimony. But as the prosecutor mentioned earlier, there are going to be some people here from the coroner’s office . . . and there are going to be people from the trace evidence department at the coroner’s office and they may be some of the same people that testified in your brother’s trial. Do you remember the trace evidence people in your brother’s trial?
Ms. Worthington: Yes.
[Defense counsel]: Now, when these people take the witness stand, are you going to be able to hold back any kind of an emotional rush that’s going to occur when you see these ladies here testifying about the same kind of things they did in your brother’s trial?
Ms. Worthington: I don’t know.
[Defense counsel]: You don’t know?
Ms. Worthington: I can’t say right now.
[Defense counsel]: That could be a little bit of a problem for you, though, couldn’t it?
Ms. Worthington: Because it’s too close.
[Defense counsel]: It’s pretty close?
Ms. Worthington: It just happened.
[Defense counsel]: I mean, even today you’re . . . a little bit anxious about the fact that this is a capital homicide case and that was a pretty traumatic and awful thing in your life, wasn’t it?
Ms. Worthington: Yes.
[Defense counsel]: Do you feel that it might substantially impact on your ability to develop complete concentration on this case, hearing some of the same kind of evidence from some of the same witnesses?
Ms. Worthington: No.
[Defense counsel]: You don’t think it will impact on the case?
Ms. Worthington: No.
Upon defense counsel challenging Worthington for cause, the judge and the attorneys had a sidebar conference. Id. at 462. The judge listened to defense counsel’s arguments to exclude Worthington for cause but ultimately rejected the challenge. See id. at 462–64. Defense counsel relied on the fact that Worthington’s experience with her brother’s case was too close in time, that she had familiarity with the evidence that would be presented, and that she was too emotionally involved to be detached, and defense counsel stressed that other jurors were available. See id. at 462–63. The trial judge stated that Worthington “when questioned, unequivocally stated that she could be fair and impartial. Obviously, she’s had a terrible tragedy in her family. . . . But the jury [sic] was very straightforward. She understands the responsibility here and I don’t see a problem with her serving.” Id. at 463. Allen had no remaining peremptory challenges, so Worthington was seated on the jury.
We review de novo a district court’s denial of a habeas petition, as well as its factual determinations when, as here, its decision is based upon a transcript. Holder v. Palmer, 588 F.3d 328, 337 (6th Cir. 2009). AEDPA provides that a federal court cannot grant habeas relief unless a state-court decision of a federal claim on the merits “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or the decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
“The Sixth and Fourteenth Amendments to the Constitution guarantee a criminal defendant the right to be tried by impartial and unbiased jurors.” Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001) (citing Morgan v. Illinois, 504 U.S. 719 (1992)); see also Irvin v. Dowd, 366 U.S. 717, 722 (1961) (“In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors,” and “[a] fair trial in a fair tribunal is a basic requirement of due process.” (citation omitted)). The crucial question in juror-impartiality cases is “did a juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed.” Yount, 467 U.S. at 1036 (emphasis added). The state trial court’s determination about a juror’s impartiality based on credibility and demeanor is given “special deference.” Id. at 1038. “A trial court’s findings of juror impartiality may ‘be overturned only for “manifest error.”’” Mu‘Min v. Virginia, 500 U.S. 415, 428–29 (1991) (quoting Yount, 467 U.S. at 1031). But even though “determinations of demeanor and credibility [ ] are peculiarly within a trial judge’s province,” juror-credibility determinations are “‘factual issues’ that are subject to” the statutory presumption of correctness. Wainwright v. Witt, 469 U.S. 412, 428–29 (1985) (referring to
Worthington’s voir dire raises serious concerns as to her ability to remain impartial. First, Worthington responded to the state trial court’s invitation for those with “personal problem[s] with regard to jury service” to come forward. R. 189-14 (Voir Dire Tr. at 130–45). She stated that her brother was murdered, id. at 141–42, which is important because Allen was on trial for murder. The trial court elicited more information from Worthington about her experience with this tragedy, which should have deepened concerns. In response to the state trial court’s question whether she could be fair and impartial, she gave an ambiguous and equivocal answer that “[y]es,” she could be impartial “[b]ecause the prosecution did everything that they could” in the trial for her brother’s murder. Id. at 452. Already, Worthington had indicated that she had a problem with serving on the jury, her personal circumstances mirrored the events giving rise to Allen’s trial, and she gave only equivocal assurances of impartiality.
She subsequently gave assurances as to her ability to be fair and impartial, id. at 455–56, 460, but we must also ask whether the trial court should have believed her. Yount, 467 U.S. at 1036; Wolfe v. Brigano, 232 F.3d 499, 503 (6th Cir. 2000) (“In the absence of an affirmative and believable statement that [individual] jurors could set aside their opinions and decide the case on the evidence and in accordance with the law, the failure to dismiss them was unreasonable.” (emphasis added)). To determine whether the trial court should have believed a juror, we look at the entire voir dire. Hughes v. United States, 258 F.3d 453, 459 (6th Cir. 2001) (explaining that courts do so because “jurors are reluctant to admit actual bias.”); Miller, 269 F.3d at 618–19 (explaining that a state court will not “be faulted for not disqualifying for cause a juror who consistently says that she thinks she can be fair,” but only after “[t]aking the [juror’s]
The majority cabins itself to Worthington’s later assurances without considering any of the other concerning information that Worthington’s voir dire responses offered. See Majority Op. at 8–9.8 In addition to coming forward in response to the state trial court’s question whether any potential juror had a personal problem serving on the jury, Worthington stated that she was present every day of the trial for her brother’s murder; she agreed that justice was not done and that she was bitter and resentful “[b]ecause [the defendant] was found not guilty.” R. 189-15 (Voir Dire Tr. at 451–52). She also admitted to having anxiety about Allen’s case because of her brother’s murder and the subsequent trial. Id. at 460. She noted that the detectives from her brother’s case continued to check up on her mother, to whom she is close. Id. at 453–54, 461–62. Worthington also stated that she could not say if she would be able to hold back her
This context is troubling, but only in “extreme” or “exceptional” situations regarding a juror’s personal circumstances, Frost, 125 F.3d at 379, have we granted habeas relief on the basis of juror bias. Typically, a juror’s circumstances raise doubts as to the juror’s credibility when the juror has a close personal relationship with those involved in the defendant’s trial, such as a friendship with the victim’s family, see Wolfe, 232 F.3d at 502–03 (indicating that the juror was friends with the victim’s family and knew the family’s theory of the victim’s death); cf. Miller, 269 F.3d at 611–12, 616–17 (determining that counsel was not ineffective for failing to challenge a juror for bias when the juror was the welfare caseworker for the victim’s mother); or has significant knowledge of some aspect of the defendant’s trial, see Quintero, 256 F.3d at 413 (presuming bias when seven of the jurors for petitioner’s escape trial had served as jurors for his co-escapees’ trials and convicted them and when neither the lawyers nor the court asked the jurors questions about this); cf. Miller, 269 F.3d at 616–17 (determining that counsel was not ineffective for failing to challenge a juror for bias when the juror did not have “extensive or detailed knowledge” about the case). Worthington did not have a close personal relationship with anyone involved in Allen’s trial, nor did she have any knowledge of an aspect of his trial.9
For these reasons, Allen has failed to satisfy either
Allen’s case is close, however, even on habeas review. The dissent for three of the seven state supreme court justices in Allen’s appeal to the Ohio Supreme Court demonstrates as much:
I do not see how any fair-minded individual can suggest that Ms. Worthington did not indicate a state of mind and view that cast the most serious sort of question
on her ability to render an impartial verdict. . . . While it is true that the state made every effort to extract a statement to the effect that this juror believed herself capable of rendering an impartial verdict, I cannot think of a situation similar to this where this court or any other court has indicated that a juror with experience and perspective similar to Ms. Worthington should not have been excused for cause.
Allen, 653 N.E.2d at 692 (Wright, J., dissenting). On direct review, I would reverse the trial court.
At the same time, “‘even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review,’ and ‘does not by definition preclude relief.’” Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015) (quoting Miller-El, 537 U.S. at 340). Accordingly, courts cannot point to the deference given to a trial court’s juror-credibility determinations and fail to undertake the other necessary part of its review—here, the second inquiry in Yount: should the juror’s assurances have been believed. 467 U.S. at 1036. In Allen’s case, this required plumbing the voir dire transcript beyond Worthington’s assurances that she could be fair and impartial. After the full inquiry required by Yount, I concur in the judgment only.