In Re Abu-Ali Abdur'rahman, Movant. Abu-Ali Abdur'rahman v. Ricky Bell, Warden
425 F.3d 328
6th Cir.
2005
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Docket

*1 found “no Appeals reason- Appeals igan Court Michigan Court of The counsel. Strickland, that the outcome probability and found standard able applied Johnson, have been dire decisions different.” would that counsel’s voir Johnson, failed to strategic choices. at 11. Johnson valid based on N.W.2d bias, that 11. It also concluded actual at of Juror 457’s 631 N.W.2d evidence that a probability implied the doctrine of relying there was no reasonable on 457 would have resulted But challenge to Juror in this habeas action. because bias any dif- being justi- in the outcome of here do not circumstances factual bias, Id. not implied ferent. we need fy finding showing would be such a decide whether his ineffective- presents again Johnson to establish a Strickland legally sufficient alterna- claim as an assistance-of-counsel Hughes, 258 F.3d Compare violation. action. in this habeas ground for relief tive Johnson, Frost, 125 F.3d at 379. with habeas AEDPA standard for Applying the sum, that the state- has failed show deci- review, the state court’s we hold that was not that he holding court decision application of a reasonable sion was right to Amendment deprived of his Sixth repeated- Juror Strickland standard. was con- of counsel the effective assistance trial court that she could ly assured the to, ap- unreasonable trary or involved an assurances, the on those impartial. Based of, federal law clearly plication established reasonably conclude court could state Supreme Court. determined inquire decision to not defense counsel’s was a background 457’s further into Juror III. CONCLUSION thought to be beneficial

strategic choice his client. above, set forth For all the reasons of the district judgment AFFIRM decision that Johnson

The state-court court. attorney’s his fail- prejudiced not was reason-

ure to further was likewise inquire arising prejudice In order to show

able. attorney’s failure to strike a

out of his juror, must show that Ju-

biased Johnson him. actually against biased

ror 457 was States, v. Hughes United ABDUR’RAHMAN, re Abu-Ali (6th Cir.2001) (“Petitioner’s of inef- claim Movant. grounded of counsel is fective assistance Abdur’Rahman, Petitioner- Abu-Ali failed to strike a the claim that counsel Appellant, juror. maintain a that a To claim biased however, him, juror prejudiced [Pe- biased juror must show titioner] Warden, Ricky Bell, Respondent- him.”) actually against (quotation biased Appellee. omitted). But see United States marks 02-6547, Nos. 02-6548. (dis- Frost, Cir.1997 implied juror bias cussing the doctrine of States Court appeal from a in the context of direct Sixth Circuit. conviction). mail fraud 7,Oct. Michigan accepted trial court Juror The Harbison, Bradley Maclean, & impar- A. Stites 457’s that she could be assurances Defender, Bottei, assurances, Paul R. Asst. F.P. Fed- Mich- tial. Based on these

329 L.Ed.2d-(2005). Office, Nashville, Public Defender’s the today, eral order Creek, TN, Redick, Jr., majority P. this Court remands this William Whites TN, original panel to the of remanding Petitioner-Appellant. for the case back to the district court. We Smith, General, Atty. L. Asst. Jennifer respectfully dissent from this decision. Whalen, III, Joseph Atty. F. Asst. Gener- Bell, In Alley v. we unanimously held al, General, Attorney of the Nash- Office appropriate procedure the for a case ville, TN, Respondent-Appellee. for 60(b) to consider a new Rule standard was BOGGS, Judge; Before: Chief to remand that case to the district in court SILER, MARTIN, BATCHELDER, order to determine whether can DAUGHTREY, COLE, CLAY, MOORE, 60(b) proper be considered a Rule motion. GILMAN, GIBBONS, ROGERS, (6th Cir.2005). 405 F.3d 371 In the SUTTON, COOK, McKEAGUE, and case, the Court is asked to address the GRIFFIN, Judges. Circuit situation, opposite same but comes to an

conclusion. Instead of returning the case court, ORDER district is Court’s generally accepted practice for re- BOGGS, Judge. Chief Court, Supreme major- mand from the 1, 2005, August On United States ity bypass instead has chosen to the cre- Supreme prior judg- vacated our Court proceed ation of a new factual record and case, Abdur’Rahman, ment in this In re straight to appeal process. 174, Cir.2004), 187 and re- Additionally, this case should be re- manded the case for further consideration manded to pur- the district court for the light Crosby, in 545 Gonzalez U.S. pose of insuring the record has the neces- -, 2641, 125 S.Ct. 162 L.Ed.2d 480 sary evidence to follow the mandate of the — (2005). Abdur’Rahman, Bell v. U.S. Supreme permit light Court and review in — - -, 2991, 125 S.Ct. L.Ed.2d If, stands, of Gonzalez. as it now (2005). hereby The case is returned to the original three-judge panel should hold that panel originally to which it was submitted petitioner’s properly motion is viewed by for consideration as directed the Su- 60(b) as a Rule motion under Gonzalez v. preme Court. Crosby, the court in district would remain It is so ORDERED. position equitable the best to evaluate the peculiar petitioner, considerations to the DISSENT 2651, 2653, and S.Ct. the case would MARTIN, Jr., F. BOYCE Circuit have to returned still to the district DAUGHTREY, Judge, Judges with whom peti- court. Even if it turns out that the MOORE, join COLE and CLAY properly tioner’s motion is not as a viewed dissenting. 60(b) Rule motion under Gonzalez v. Cros- in by, panel position no better 28, 2005, opinion On June this Court’s in make that than decision the district court. Bell, In re Abdur’Rahman v. (6th Cir.2004), Although point vacated the Su not a of dissent with the preme majority’s pro- Court and remanded for further we must also raise a light composition consideration of Gonzalez v. Cros cedural with the - -, by, light U.S. 125 S.Ct. 162 our en banc court of our two (2005). originally L.Ed.2d Bell Abdur’Rah newest members. This case was — — man, -, panel U.S. S.Ct. heard an en banc on December date, have welcomed 2003. Since Court, Judges members

two new new These two Griffin. and

McKeague Court part en

members It seems coun- order. on this

which voted already has a case that

ter-intuitive as an en this Court

come before composition of have the should

proceeding during appeals pro-

that court altered these additions while

cess because Su- under consideration

case was statutes point, At this our

preme Court. this leave procedure

and rules of it re- and, after

unanswered so.

mains reasons, respectfully the above

For remanding this case from the order

dissent panel. SCHILLINGER,

George and Ruth

Respondents, PACIFIC RAILROAD COM-

UNION

PANY and Union Pacific Cor-

poration, Petitioners.

No. 05-8019. States Court of

Seventh Circuit. Aug.

Submitted

Decided Oct. 2005.* * initially type- script printed A follow. Opinion being version will released form. This