*3 ness to the crime. point At this of the voir OPINION dire, counsel, Miller’s trial William Skaggs KEITH, Circuit Judge. (“Skaggs”), did not ask Juror Bell any follow-up questions. Petitioner-Appellant Kenny Roy Towards the Miller end of (“Miller”) however, voir currently serving a sen- the trial life tence asked after a state conviction for members panel intention- if murder, they al wanted to attempt criminal reveal further commit information. murder, first-degree following burglary, dialogue took place: and being a first-degree persistent felony Judge: offender. Okay, one final thing.... [D]ur- appeals Miller from the district court’s de- ing the course of this proceeding there nial of petition for a writ of may habeas have been something that was corpus pursuant § to 28 U.S.C. 2254. In asked you go let by. Something his habeas petition, Miller alleges that his you you thought weren’t sure but trial counsel was ineffective for failing to now its bothering you. Anybody have challenge a during voir dire. anything they need, feel they like need Miller argues that the Kentucky Court of to bring up court, with the I’ll be happy Appeals denial of his ineffective assistance to take it up bench, here you of counsel claim to, was contrary and an would feel would in any way would cause application of, unreasonable clearly you any estab- difficulty in sitting as a in lished federal law. For the reasons set Yes, this case. ma’am, come up. below, forth we REVERSE the district [bench conference] court’s and order proceed- REMAND for Bell: I’m Ms. Yvonne Bell. ings consistent with opinion. this Yes, Judge: Ms. Bell. Bell: I Ms. feel like I would kind of be
I. BACKGROUND partial to because, Linda Cline when she On 14, 1990, November in my (inaudible) grand classes jury in she Warren County, Kentucky seemed like really indicted she wanted to do for murder, intentional better and I criminal kind of attempt to have sympathy for murder, commit case, her in this first-degree burglary, and being being a first-degree victim. persistent felony of- fender. The indictment charged Miller for Judge: you Do believe the you fact that shooting killing and Gray Leon and her, shoot- you indicated, had studies, Bible
ing and seriously wounding Linda Cline will appear and as a witness in this case their bed at an apartment in Bowling is alleged to be one of the victims in Green, Kentucky. case, this do you believe that would in- for woman,- striking this cause thinking here your
fluence cause? her side for sympathetic more to be you could be said she Well. She be fair Mr. Wilson: sit and you couldn’t as such but she person know She’does fair. impartial? she could question answer did fair. could be think I Bell: I Ms. fair. I ministered fair. I could
think no motion. I have Skaggs: Mr. four for about section women’s Juror challenging out, In addition in and was kind She years. not use counsel did cause, better, do she like wantéd seemed *4 pro- the to remove challenge peremptory whether fair and I could I believe Therefore, Bell re- Juror juror. spective believe guilty I not or guilty she’s jury. on the mained I do have But all. about it fair could 1-992, jury, which 19, the August her. about On feelings some all Bell, Miller on convicted Juror included ... to going I’m Okay, ma’am. Judge: September On indictment. of the charges to seat, going I’m your take back and go to Miller sentenced 1992, court 2, the trial lawyers. from the hear im- twenty-year terms to two life and I ask her may Judge, Skaggs: Mr. Miller consecutively. run to prisonment, question? Kentucky Su- to the appeal direct filed Yes, may. you Judge: judgment the concerning preme Court The section. The women’s Skaggs: Mr. September On sentence. and conviction of what? section women’s Kentucky Supreme Court 1994, 29, the n (cid:127) County Jail. conviction, The Warren but remanded Bell: Ms. affirmed re-sentencing directed case years many how Okay, and Skaggs: Mr. sentence life run Miller’s trial this, it recent? or was was ago sentence. forty-year with his concurrently four ... about '80 From Bell: Ms. re- On, 1994, 15, the trial November year. last up until years, with in accordance Miller sentenced you have so Okay, and Skaggs: Mr. order. Court’s Kentucky Supreme happened? this her since seen 1995, court- 26, new On October I haven’t No, haven’t[.] Bell: Ms. a motion counsel, Miller appointed file.d (inaudible) for about to the coming been ineffec- upon vacate,the based judgment now. year Among alle- counsel. assistance tive Well, happened this Skaggs: Mr. that his argued gations, ago. months Juror he allowed when ineffective I don’t Well, know. I don’t Bell: jury. Ms. on remain Bell, juror, to a biased any of them ask I never remember. Circuit 1998, 2, the Warren September On they’re in for why fheir hearing. evidentiary held an Court was the concern My whole testimony business. heard Court Circuit Warren them about talk to I never of God. word counsel, Skaggs. his trial from; Miller busi- personal their any of cases or their not seek he did Skaggs testified ness. jury because: exclude Juror (cid:127) all. That’s I see. understand Skaggs: do people Mr. .Most drug addicts core hard of extreme world Just down. may step you Okay, Judge: core hard [involved] ... departs.] [Juror back. your seat take reality. a different It is addicts.... drug consider tome you want either Do Regular jurors do not understand that 7, January On the district court drug hard core addicts will lie ... [.] referred the matter to a magistrate judge They only will tell the if they truth have for a report and recommendation. On no And, other opportunity. since this May magistrate judge en- lady Cline, knew Linda knew she was findings tered of fact and conclusions of completely belief, unworthy of law, I left her recommending that the district court up.... Anyone who Cline, knew Linda deny petition on the merits and issue a knew that she could not trusted, certificate of appealability the first is- my thinking at the time. only, sue because jurists reasonable find assessment of the constitutional 2, 1999, On February the Warren Cir claim or wrong. debatable On June cuit Court denied Miller’s motion. Miller objections Miller filed findings appealed to the Kentucky Ap Court of fact. On June the district peals. 19, 2001, On January Kentucky court entered an order adopting the mag- Court of Appeals affirmed the Warren Cir judge’s istrate report and recommenda- cuit Court’s decision holding that Miller *5 tion. In denying the petition habeas failed to rebut the presumption that trial issue, the first the district court held counsel’s decision to not exclude Miller failed to overcome the presumption was sound and, trial strategy therefore, that trial counsel’s reason for allowing Ju- not deficient performance pursuant to ror Bell to remain on was sound Strickland v. Washington, 668, 466 U.S. trial strategy. addition, In the district 2052, (1984). 80 674 L.Ed.2d court held that Miller failed to show Miller filed a motion for discretionary re Juror Bell him. view the Kentucky Supreme Court. Therefore, the district court ruled that On 17, 2001, October Su Kentucky Miller failed to show that the decision of preme Court denied Miller’s motion. the Kentucky Court of Appeals, which de- After exhausting his remedies in the nied his ineffective assistance counsel Kentucky courts, state 2, on November claim, was contrary to, or an unreasonable 2001, Miller a petition filed for a writ of application of, clearly established federal corpus, se, habeas pro pursuant to 28 law. § U.S.C. 2254 in the United States District Court for the Western District of Ken- 17, On July 2002, Miller filed a notice of tucky. Miller raised five claims of appeal ineffec- for the district court’s denial of his tive assistance of counsel. Miller argued petition habeas based on his first claim of (1) that: his attorney failed to seek to ineffective counsel, assistance of which the Bell, exclude Juror who knew and admired district court 24, certified. July 2002, On (2) State’s primary witness; his attor- Miller also appealed the district court’s ney failed to investigate and subpoena wit- denying order a certificate appealability nesses to directly contradict the State’s on Miller’s remaining four claims. On (3) witness; chief attorney attempted 17, January 2003, this Court denied Mil- to establish defense, an alibi which he application ler’s partial a certificate of knew could not support by credible appealability holding that Miller to failed (4) witnesses; his attorney failed to move amake substantial showing of the denial of for a mistrial after a prejudicial had right. constitutional This Court deter- exposure to a spectator trial; (5) mined that Miller’s appeal proceed should the cumulative effect of his er- on the claim that the district court certi- rors constituted ineffective assistance. fied: Whether Miller was denied the effec-
671 (2) a decision counsel when his resulted tive assistance based on an unreasonable determination exclude Juror failed to seek to 2003, light facts the evidence May Respondent-Appel- Bell. On proceeding. in the State Webb, Warden, op- waived the lant Patti appeal. to Miller’s portunity respond 2254(d). §Id. Supreme explained Court these re-
II. DISCUSSION
under
quirements
for habeas relief
28
2254(d)(1)
Taylor,
§
in Williams v.
U.S.C.
a district
This Court
reviews
146
S.Ct.
L.Ed.2d
peti
in a habeas
legal conclusions
court’s
(2000). Williams,
held
the Court
O’Dea,
179 F.3d
Lucas
tion de novo.
that,
justify
grant
of habeas
order
Cir.1999).
(6th
.usual
This Court
relief, a
federal court must find violation
of,
error,
clear
fact for
ly
findings
reviews
“clearly
from
of law that
established”
in a
court’s decision
“but when
district
dicta,
holdings,
“the
opposed
transcript
on a
habeas case
based
as of
Supreme] Court’s decisions
[the
trial,
petitioner’s
state
decision.”
time of the relevant state-court
credibility
‘no
court thus makes
district
[a]n unreasonably applies princi- that sions but custody in a person on behalf of corpus case.” Id. prisoner’s to the facts of the ple judgment to of a State pursuant granted respect court shall not be however, court, may A federal adjudicated on the claim that was adjudication be unreason state find unless proceedings merits State concludes that court “simply able because of the claim— adjudication the rele judgment that independent in its a, (1) clearly applied decision that state-court decision resulted vant to, erroneously or in federal law contrary or involved an unreasonable established Rather, correctly. application must of, clearly Feder- application established 411, Id. at 120 unreasonable.” law, by Supreme also be al as determined Moreover, States; federal S.Ct. 1495. Court of the United 320, Murphy, U.S. Lindh v. 521 the AEDPA be- 1996. See 1. We decide this case under (1997); 336, 2059, 481 117 138 L.Ed.2d petition S.Ct. for writ cause Miller filed (6th Yukins, 867, 2, 2001, Cir. 871 well Barker v. 199 F.3d corpus habeas on November 1999). 24, April effective date after the AEDPA's 672
making application inqui however, unreasonable a biased impaneled, is ry inquiry not transform the into “prejudice should presumed, under is Strickland subjective by inquiring one whether all and a required.” Hughes new trial is v. jurists agree States, (6th reasonable 453, United 258 F.3d 457 Cir. application by the state court was unrea 2001). Rather, the is “whether sonable. issue argues Miller that it was ineffective clearly
state application court’s estab counsel assistance of for his trial counsel to objectively lished federal law unreason Bell, keep Juror a biased on the 410, 120 able.” 1495. S.Ct. jury. Pursuant to the Sixth and Four AEDPA, therefore, Under Amendments, teenth a criminal defendant inquiry threshold is whether Miller seeks guaranteed right impartial to an apply rule of that was clearly law jury. Illinois, Morgan unbiased 504 established the time of his conviction in 727, 2222, U.S. 119 S.Ct. L.Ed.2d the state court. See id. at 120 S.Ct. (1992). “Among the most essential Supreme seeks to apply responsibilities of defense counsel is to holding in Court’s Strickland v. Washing- protect right his client’s constitutional to a ton, 466 U.S. jury fair and impartial by using voir dire (1984), Supreme L.Ed.2d 674 which the identify jurors and ferret out who are clearly Court had at the established time biased against the defense.” Miller v. conviction, of Miller’s to show ineffective Francis, Cir.2001); assistance of counsel. Court Blount, see United States two-prong Strickland established a test to (6th Cir.1973) (“The primary purpose evaluate claims ineffective assistance of jurors of the voir dire of possi is to make pursuant to the Sixth Amendment. ble the First, empanelling of an petitioner “must show coun- through questions permit sel’s an representation objective fell below intelli gent of challenges counsel.”); standard of reasonableness. Judicial exercise scru- tiny performance of counsel’s see also Mu’Min v. Virginia, must be *7 highly deferential, 431, 1899,114 (1991) and a fair assessment of 111 S.Ct. 493 L.Ed.2d attorney performance requires every (stating that voir dire “serves the dual effort be made to the distorting eliminate purposes enabling of the court to select an effects hindsight, of to reconstruct the cir- impartial and assisting counsel in ex of challenged cumstances counsel’s con- ercising peremptory challenges”); Ro duct, and to evaluate conduct the States, sales-Lopez 182, v. United 451 U.S. perspective counsel’s at time.” 188, 1629, (1981) 101 22 S.Ct. 68 L.Ed.2d 689, 104 considering S.Ct. 2052. A court (“Voir plays dire critical function in as claim of ineffective assistance of counsel suring the criminal defendant that his “must indulge strong presumption that Sixth right impartial Amendment to an counsel’s conduct falls within the wide honored.”). jury will be range of professional reasonable assis- Counsel, however, Second, granted
tance.” Id. is def petitioner must show that erence performance preju- conducting counsel’s when voir dire. is, petitioner. Hughes, diced the F.3d at petition- attorney’s That 258 457. “An er during must “show that actions voir there is reasonable dire are considered to that, probability but for be trial unpro- strategy.... counsel’s matters of A strate errors, fessional proceed- gic the result of decision cannot be for a the basis claim ing would have been different.” Id. of When ineffective unless assistance
673 the facts “totally ignorant need not be that it ill-chosen be so is shown decision Florida, Murphy involved.” and issues obvious trial with the entire permeates 2031, 44 omitted). 95 S.Ct. De 421 (citation U.S. Id. unfairness.” “ Rather, (1975). is suffi ‘[i]t coun 589 L.Ed.2d strong presumption spite impres lay his can aside trial on sound cient if are based sel’s decisions based a verdict and render opinion for or sion it is insufficient strategy, ” Id. in court.’ presented an omission for on the evidence reason articulate a simply Dowd, U.S. as ineffective Irvin 366 (quoting to constitute alleged act or (1961)). In strategy 751 1639, L.Ed.2d “The trial counsel. 81 S.Ct. sistance reasonable.” stated: objectively Irvin, Court Supreme must itself Strickland, (citing Miller, at and swift, widespread days of In these 2052). 681, 104 S.Ct. at communication, 466 U.S. an methods diverse expected can be important of voir dire management trial court’s A public in of the the interest arouse The Su deference. similar granted is best scarcely any those vicinity, the “tradi acknowledged has Court preme have jurors will not to serve qualified to the accorded discretion tionally broad as to opinion or impression some formed voir dire.” conducting judge trial particu- is case. This of the merits 1899. Mu’Min, at 500 U.S. hold To cases. criminal larly true in voir management court’s A trial any precon- mere existence demands however, “subject to essential or innocence guilt as to notion ceived F.3d at 457 of fairness.” more, accused, is sufficient without of an marks (citations quotation and internal a prospec- presumption to rebut Sixth omitted). petitioner’s Because to es- would tive at jury is an right to Amendment It impossible standard. an tablish a new may obtain stake, defendant “[a] lay can aside if the sufficient re juror’s honest impaneled if an a ver- render opinion impression voir dire on questions sponses the evidence on based dict challenge a valid rise to given have court. McDonough Power (citing cause.” Greenwood, 464 U.S. Inc. v.
Equip., 722-23, S.Ct. 1639. Irvin, (1984)). L.Ed.2d 663 556, 104 S.Ct. voir during is discovered If actual bias “ ap subject to are for cause ‘Challenges pro- must excuse dire, the trial court based must by the proval F.3d at Hughes, 258 juror. spective ” Id. *8 implied bias.’ “ or finding of actual exis- fact”—the “bias in is bias ‘Actual Felix, 569 F.2d v. Virgin Islands (quoting to an leads mind that a state tence Cir.1978)). (3d 1274, 1277n. 5 act with will person that the inference ” (quoting 463 Amendment, impartiality.’ entire the Sixth Pursuant to 38, Torres, 43 128 v. States a United when impartiality juror finding for a v. Cir.1997) States (2d (citing United cause, the relevant challenged juror is 177, 81 133, 123, 57 S.Ct. Wood, 299 U.S. he swear that juror “did question [the] be (1936))). bias can Although 78 L.Ed. might hold any opinion aside could set ex- juror’s prospective a' evidence, through revealed on the the case and decide jurors admission, frequently, more press of impar protestation juror’s should bias actual admit are reluctant Patton believed.” have been tiality atti- their biased discover court must trial S.Ct. Yount, 104 467 U.S. evidence. circumstantial through juror tudes (1984). A qualified 847 L.Ed.2d Id. at 459 (citing United States v. Allsup, THE COURT: You you don’t think (9th Cir.1977)). could be fair?
Because Miller’s claim for
JUROR: No.
ineffec
tive assistance of counsel is
on
based
THE
Okay.
COURT:
Anybody else?
trial
failure to
strike a biased
Okay. Where did we
off?
leave
Miller must show that the
Id. at 456. Neither the
nor
judge
him.
Id. at 458
any
asked
follow-up questions.
In addi-
(citing
Goeders v. Hundley, 59 F.3d
tion, counsel never attempted to remove
(8th Cir.1995) (citing Smith
Phillips,
for cause or by peremptory
209, 215,
U.S.
102 S.Ct.
675 find actual are left to we impartiality, of whether regarding follow-up question one bias. In re- impartial. fair could be she stated, I could think “I Bell Juror sponse, is confronted a trial court When immediately quali- however, she fair,” case, as in this a biased with I do stating, “[b]ut statement fied her upon a must, sponte or sua either judge Although about her.” feelings have some juror for prospective motion, dismiss further, he questioned counsel defense States, U.S. v. United Frazier cause. section the women’s only inquired (1948). 93 L.Ed. 69 S.Ct. nor counsel jail. Neither and the respond to failed to trial court Because par- of her statement on followed-up judge dire, on voir of bias statement Bell’s Juror she not ask whether They did tiality. that, Hughes, counsel’s fail as in we find a and render feelings] “lay aside [her could objectively in turn was respond ure to the evidence on based verdict Strickland. to pursuant unreasonable 722-23, 81 S.Ct. Irvin, at U.S. court.” admits expressly venireperson a “When juror makes context, a when this response
1639.
without
court
on voir
bias
can be
she thinks
that
respond [to
not to
a statement
counsel
follow-up, for
it with
immediately qualifies
fair,
turn is sim
partiality]
of
the statement
pre-
bias
customary
partiality,
of
statement
‘to exercise
á failure
ply
rehabilitation
juror
reasonably com
proper
that a
diligence
sumed when
skill and
”
are
of
attorney
provide.’
assurances
petent
v.
absent,
Hughes.
(quoting Johnson
as in
at 462
Armontrout,
that, when
acknowledges
This Court
Cir.1992)).
juror can be
particular
whether
asked
Appeals
held
Kentucky Court
I could be
as
think
fair,
such
assis-
denied effective
was not
that Miller
as
construed
necessarily
not
are
fair”
failed
because Miller
tance. of
Francis, 269 F.3d
v.
equivocation.
decision
trial counsel’s
that his
show
stated,
Francis, we
In Miller
at 618.
not the
jury was
on the
leave Juror
commonly couch their
members
“venire
judgment.
professional
result
reasonable
concerning bias
questions
responses
counsel,
that
stated
Skaggs,
trial
Therefore,
the use
of T think.’
terms
jury because
kept Juror Bell
necessarily be con-
cannot
language
such
drug addicts”
“hard core
was about
Id. For
equivocation.”
as
strued
Cline and
Linda
Bell knew
and Juror
fair, but
...
I could
say, “I think
Cline, knew
Linda
who knew
“[a]nyone
however,
be construed
more,
must
without
The Ken-
be trusted.”
could not
that she
It is es-
equivocation.
a statement of
noted
Appeals
tucky Court
[she]
“swear
sential
the selec-
regarding
strategy
in trial
error
might hold and
any opinion [she]
set aside
to the
rise
generally
jurors does
tion of
Patton,
the evidence.”
the case on
decide
of counsel.
assistance
ineffective
level of
If a
104 S.Ct.
not,make
Kentucky Court
to the
unequivocal
Contrary
such an
juror does
decision,
whether
the decision
cannot
Appeal’s
statement,
believe
then a
a discre
juror cannot
id.
a biased
See
to seat
impartiality.
the protestation
Id. at 463
decision.
trial,
strategic
tionary or
is ulti-
Accordingly, when
Martinez-Salazar,
United States
(citing
partiality,
a statement
mately left
774, 145
a lack
U.S.
case,
coupled with
as in
*10
(2000)
that
seat-
(holding
L.Ed.2d
juror assurances
rehabilitation
ing
of a biased
who should have been
key
Government’s
witness and victim. No
requires
dismissed for cause
reversal
competent attorney would have employed
conviction)).
held,
previously
As we
such strategy.
there is no
strategy
trial
sound
that could
“
support
essentially
what is
a waiver of a
The
‘presence of
a biased
defendant’s basic Sixth
right
Amendment
harmless;
cannot be
the error requires a
to trial
an
jury.
If,
Id.
how- new trial without a showing of
prej
”
ever, there could
a strategic
be such
deci- udice.’ Hughes, 258 F.3d at
(quoting
sion, this case
not present
does
such a
Gonzalez,
United
States v.
situation
Skaggs’s
because
articulated trial
(9th Cir.2000) (citations omitted)).
strategy
objectively
was
unreasonable. Therefore, because Miller’s trial counsel
First, Skaggs’s reasoning
“anyone
that
impaneled
a biased
“prejudice under
Cline,
who knew Linda
knew that she Strickland
presumed,
and a new trial is
could not be
was completely
trusted”
base-
required.” Id.
less.
Juror Bell
gave
never
counsel nor
This Court has decided two other nota
the court an indication that she did not
ble
regarding
cases
impartial jurors.
trust Linda Cline.
contrary,
On the
Juror
v. Brigano,
prosecutor, and ques- defense counsel III. CONCLUSION regarding tioned her knowledge, her Because we find counsel’s per relationship mother, with the victim’s formance to have objectively been unrea whether she could be fair and impartial. sonable and we find that impaneling a juror Unlike the “Furrow nev- prejudiced Miller, the Ken er stated that she could not be fair. While tucky Court of Appeals’s determination expressed Furrow some discomfort about that Miller’s trial sitting performance on the jury, consistently an- was not constitutionally swered that deficient she could be fair.” was an Id. at 617. Therefore, unreasonable application Strickland, Court was “not constrained which clearly make a finding of actual upon bias based established federal law. We, an undisputed therefore, statement of a REVERSE the district she could not deciding be fair in court’s the case.” order denying Miller’s 28 U.S.C. § petition, and REMAND the case with instructions that the district court Francis,
Unlike Miller v.
where there
order Petitioner released from custody un
was no statement
partiality,
Juror Bell
less the State
commences new trial with
specifically stated
“partial”
she would be
days.
Linda Cline. Juror Bell stated that she
had “sympathy for her” and believed she
GIBBONS,
JULIA SMITH
Circuit
was the “victim.” Juror Bell never un-
Judge, dissenting.
equivocally stated
she could
be fair.
Bell’s
during
voir dire do not
On the contrary,
gave
Juror Bell
quali-
demonstrate that she was actually biased
fied
Moreover,
statement of impartiality.
against Miller, and the majority
errs
Francis,
unlike Miller v.
where there was
concluding
Therefore,
otherwise.
I re-
sufficient questioning regarding the rela-
spectfully dissent.
tionship
between
the victim’s
mother,
stated,
when Juror Bell
matter,
believe
As an initial
some clarification is
I could be fair about it all. But I do have
in order
respect
posture
to the
Florida,
794, 800, 95 S.Ct.
No
claim.
assistance
ineffective
(1975)
(explaining
juror at issue expressly indicated that she
Furthermore,
provides
no reason
could
impartially
decide the case
and be-
validity
doubt the
of Bell’s assurances.
cause
given
there was no reason
to doubt As
by the
evidenced
fact that Bell had not
assurance).
juror’s
this
A
ongo-
close and
seen Cline in at least a
at
year
the time of
ing relationship
a person
with
involved in
voir
the two did not share a close and
may
case
reliability
undermine the
of ongoing relationship. Nor is there any
her assurance of impartiality. Wolfe, 232 reason to believe that
sympathy
Bell’s
for
502;
Miller,
F.3d at
see also
269 F.3d at Cline
so strong
as to undermine the
616-17
(crediting
assurance of
reliability of her assurance that she could
impartiality despite
acquaintance
her
evaluate the case fairly and impartially.
the victim’s mother because “there is no Expressions
sympathy
of'
victim,
for a
indication from the record
they
more,
without
do not demonstrate actual
shared a
personal
close
relationship”).
juror
bias where the
has assured the court
merely
But
being acquainted with someone
may
that she
decide
fairly.
the case
For
involved in
case does-
not.
See
in
example,
Calderon,
Ainsworth v.
McQueen
Scroggy,
(9th
F.3d
Cir.1998),
indi-
(6th
(“There
Cir.1996)
is no constitutional
cated during voir dire that “she was un-
prohibition against jurors simply knowing sure whether she could disregard the in-
parties
involved.... The Constitution
formation she
gathered
had
from news
does
require ignorant
not
or uninformed
sources and decide the
only
case based
jurors;
it requires
jurors.”).
evidence
trial.”
at
The de-
Miller does not succeed in demonstrat-
sought
fendant
a change
venue,
which
ing that Bell
actually
was denied.
Id. at 795. On habeas re-
him. Bell made
express
view,
numerous
assur-
he claimed that
denial
this
was erro-
ances during voir dire that she
de-
neous
because the
in question was
cide
fairly.
Miller’s case
Specifically, in
'prejudiced
against him.
response to the
question
trial court’s
as to
795-96.
rejected
assertion,
The court
whether she could be fair and impartial
noting that there was “no indication that
despite her familiarity with
feelings
juror]
opinion
[the
had the
that [the defen-
Cline,
for
Bell
“I
replied,
think I could be
murderer,
dant] was
repeated-
and she
fair.
I think I could be fair....
I
ly
believe
stated she could set aside her feelings of
could be fair and whether she’s guilty or
sympathy for [the
in
judge
victim]
order to
Apparently,
stating
in
that she
momentarily
could be fair
being
mistook Cline as
the de-
determining
guilty,”
"whether she’s
Bell
in the
fendant
case.
I could be
I believe
guilty.
or not
guilty
796;
also Celes
see
fairly.”
the case
it all.
fair about
Blackburn,
tine
Cir.1984)
court did
that state
(holding
in an isolated state-
saying so
Far from
for cause
to dismiss
refusing
again
ment,
again
err
Bell reiterated
of the victim
granddaughter
familiarity with Cline—
knew the
despite her
who
that —
testimony at voir
because,
though
fairly.
her
even
she could decide
might affect
emotions
her
indicated
dire
describing
them
Additionally,
consistently
deliberate, “she
ability to
her
majority as-
partiality,
statements
so influ
would not
feelings
her
stated
certain of Bell’s
significance
cribes
against [the
her
prejudice
as to
her
ence
justify.
words do not
that the
had not discussed
and “[s]he
defendant]”
on to
majority latches
example,
For
granddaughter,
murder with
like
feel
Bell’s initial comments
bias”).
inAs Ains-
denied
repeatedly
Cline”
partial
Linda
kind of be
that she
stated
worth,
repeatedly
sympathy
have
kind of
and “I
*15
her
fairly despite
the case
decide
could
the victim.”
case,
being
with her
this
Cline,
never stated
and she
for
sympathy
are
all,
“kind of’ statements
these
First of
the murderer.
was
Miller
that she believed
discussed,
Second, as
hardly unequivocal.
Celestine,
no indication
Also,
there
as in
do
for a victim
of
expressions
sympathy
issue with
crime at
that she discussed
partiality.
necessarily
not
demonstrate
Cline.
injects legal content
Third,
majority
con-
“partial,”
term
use of the
into Bell’s
his burden
sum,
fails meet
In
cannot decide
that she
it to mean
struing
actual bias
possessed
that Bell
showing
of
her and
before
the evidence
on
case
result,
also fails
him, and,
as
against
Miller.
against
admitting bias
that she is
that his
showing
his burden
to meet
that
However,
testimony indicates
full
her
prejudi-
Bell was
failure to strike
or
sympathy,
indicate
“partial” to
Bell uses
the district
Thus,
affirm
we should
cial.
for, Oxford
fondness
liking
or
having
ineffective assis-
of Miller’s
court’s denial
(2d ed.1989), Cline.
Dictionary
English
for a writ of
petition
of his
claim and
tance
to Bell’s use
Moreover,
import
imputing
generally.
more
corpus
habeas
indica-
her initial
“partial” and
the word
course,
con-
reaches
majority,
conveniently
The
Cline
sympathy
for
tion
that, although
It finds
trary
these
that,
conclusion.
made
after she
the fact
ignores
fair,” she
I could be
“I think
court,
con-
apparently
Bell stated
statements,
statement
unequivocal
an
im-
never made
partiality,
Bell’s potential
about
cerned
fact,
and,
express
in
made
ability
about
her
her
mediately questioned
nu-
There are
partiality.
which
impartially,
to serve
this conclusion
with
problems
could
merous
that she
repeatedly
responded
Bell
majority reaches
which
the manner
case.
deciding
Miller’s
be fair
more
First,
than
said much
Bell
it.
of the
however,
linchpin
Ultimately,
be fair”:
think I could
unequivo
conclusion
majority’s
that,
is the fact
partiality
cally indicated
I could
I think
I
be fair.
I
could
think
time that she
last
stating for the
after
in the women’s
I ministered
fair.
said,
fairly, she
decide Miller’s
years.
[Cline]
for about four
section
feelings
[Cline].”
have
“But I do
out,
seemed
in and
but
kind of
was
a state
may constitute
remark
better,
I
While
be-
to do
wanted
like she
it
sense
in the
partiality
ment of
she’s
fair and whether
lieve I could
Cline,
empathy
evidences
for
Bell is not
fair,
record that she could not be
this court
asserting that she would not be able to
presume
was able to
partial
fairly
guilt
decide
Miller’s
or innocence.
biased against the defendant.
Rather, the statement
simply,
reaf-
Id.;
Miller,
(“Be-
see also
In statement reaching conclusion, its majority the juror from the that he could impartial— be analogizes this case to Hughes. The anal- glaringly is Thus, absent ogy here. inapt. In to reach juror the un- ' conclusion, its the equivocally majority during stated contorts the voir holding don’t of Hughes, think I could be fair.” which stands 258 F.3d at for the 456. In response, proposition juror may the trial presumed court asked be the to you “You don’t fair?”, against think biased could be a defendant juror which the when starkly he replied, express “No.” makes no statements of Id. Most juror importantly, the never indi- expressly instead states vidually stated suggested that he whatsoever does believe he can be fair in that she could be impartial, initially determining either a defendant’s innocence or or through guilt rehabilitation. Id. at 460 and no effort is made to rehabilitate (“[The juror] never said that juror she would specifically. The unjustifi- court able to render a impartial fair and ably ver- extends holding to allow for a dict.”). only Left awith statement in the presumption of partiality even when the ' most, 2. At majority the could conclude— light untenable [] of both the close rela- though disagree I would still tionship Bell’s between juror and the victim's —that feelings statements of toward Cline family, under- and the fact she family's knew the mine impartiality, her assertion Wolfe, theory death.”), see of the victim’s but to charac- ("[T]he 232 F.3d at second assess- terize them partiality as statements of in and ment that she impartial could be fair and [is] of themselves is unfounded. circumstances); totality of the im- statements express has made juror Stafford Cir.1994) 1557, 1567 Saffle, partiality. (“We by examining prejudice review case analogizes this majority also circumstances.”), not totality of found that Wolfe, In Wolfe. last-in- that comes merely the statement four failing to excuse erred in time. at 502-03. 232 F.3d cause. jurors for totality of Bell’s jurors expressly not believe However, these do each ac- that she was demonstrates ability to decide or her doubted Hence, I also he tually “did not think Miller. fairly. One case performance juror.” Id. at believe that a fair could be as to objectively “hard unreasonable it was not so juror stated The second Washing- under Strickland relationship be deficient her say” whether ton, ability her impact U.S. parents would victim’s Miller, (1984). The third L.Ed.2d 674 fairly. to deliberate Cf. (“[T]he trial court. cannot be to whether she at 618-19 doubt as “expressed for cause a disqualifying and decide faulted for not reports aside put [news] that she thinks consistently says the evidence who solely on case fair.”). conclusion, I Finally, the fourth can Id. at 502-03. trial.” of Miller’s court’s denial prose- district require affirm the juror “doubted would and, counsel claim a reason- beyond ineffective assistance its case prove cution petition asked denial of his ultimately, 503. When its doubt.” able majority corpus. no Since expressed of habeas writ partiality, her otherwise, dissent. respectfully Mil- ability to decide does doubt about such inappo- simply fairly. ler’s Wolfe
site. *17 ma- with the difficulty have final
One inqui- it reduces holding is that
jority’s question to a bias into a actual
ry repeatedly If a swears
chronology. deciding a defen- can be fair
that she then indicates guilt innocence or LEADBETTER, dant’s C. Ronald that she some has final statement in her Plaintiff-Appellant, victim, the for the sympathy degree of v. can it that a court majority would have Defendant-Appellee. GILLEY, J. Wade only conclude that simply defendant. against No. 02-6360. conclusion. subscribe to cannot Appeals, Court States United actually bi- juror was assessing whether Circuit. Sixth defendant, con- we should ased statements, see totality of her sider 10, 2004. March Argued F.3d Schofield, 365 Hightower 29, Sept. and Filed Decided Miller, 269 (11th Cir.2004); also see all the (considering at 618 F.3d dire); during voir by the made cf. Norris,
Pruett
Cir.1998) under prejudice (assessing