Miller v. Webb

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Miller v. Webb No. 02-5907

ELECTRONIC CITATION: 2004 FED App. 0323P (6th Cir.)

File Name: 04a0323p.06 _________________

OPINION

UNITED STATES COURT OF APPEALS _________________

FOR THE SIXTH CIRCUIT DAMON J. KEITH, Circuit Judge. Petitioner-Appellant

_________________ Kenny Roy Miller (“Miller”) is currently serving a life

sentence after a state conviction for intentional murder,

KENNY ROY MILLER, X criminal attempt to commit murder, first-degree burglary, and

Petitioner-Appellant, - being a first-degree persistent felony offender. Miller appeals

- from the district court’s denial of his petition for a writ of

- No. 02-5907 habeas corpus pursuant to 28 U.S.C. § 2254. In his habeas

v. - petition, Miller alleges that his trial counsel was ineffective

> for failing to challenge a biased juror during voir dire. Miller

, argues that the Kentucky Court of Appeals denial of his

PATTI WEBB , Warden, -

Respondent-Appellee. - ineffective assistance of counsel claim was contrary to, and an

unreasonable application of, clearly established federal law.

N For the reasons set forth below, we REVERSE the district

Appeal from the United States District Court court’s order and REMAND for proceedings consistent with

for the Western District of Kentucky at Owensboro. this opinion.

No. 01-00187—Joseph H. McKinley, Jr., District Judge.

I. BACKGROUND

Submitted: June 11, 2004

On November 14, 1990, a grand jury in Warren County,

Decided and Filed: September 22, 2004 Kentucky indicted Miller for intentional murder, criminal

attempt to commit murder, first-degree burglary, and being a

Before: KEITH, CLAY, and GIBBONS, Circuit Judges. first-degree persistent felony offender. The indictment

charged Miller for shooting and killing Leon Gray and

_________________ shooting and seriously wounding Linda Cline in their bed at

an apartment in Bowling Green, Kentucky.

COUNSEL

On August 17, 1992, a jury trial commenced against Miller

ON BRIEF: Kenny Roy Miller, Central City, Kentucky, pro in the Warren Circuit Court. During voir dire, one

se. prospective juror, Yvonne Bell (“Juror Bell”), in response to

the prosecutor’s voir dire question, stated that she was a

KEITH, J., delivered the opinion of the court, in which minister and that she had known Linda Cline for two or three

CLAY, J., joined. GIBBONS, J. (pp. 22-30), delivered a years through Bible study. Linda Cline, the woman who was

separate dissenting opinion. shot and seriously wounded, was one of the prosecution’s key

witnesses and the only eyewitness to the crime. At this point

1

No. 02-5907 Miller v. Webb 3 4 Miller v. Webb No. 02-5907

of the voir dire, Miller’s trial counsel, William Skaggs Ms. Bell: I think I could be fair. I think I could be

(“Skaggs”), did not ask Juror Bell any follow-up questions. fair. I ministered in the women’s section

Towards the end of the voir dire, however, the trial court for about four years. She was kind of in

asked the members of the jury panel if they wanted to reveal and out, but she seemed like she wanted to

further information. The following dialogue took place: do better, but I believe I could be fair and

whether she’s guilty or not guilty I believe

Judge: Okay, one final thing. . . . [D]uring the I could be fair about it all. But I do have

course of this proceeding there may have some feelings about her.

been something that was asked that you let

go by. Something that you thought you Judge: Okay, ma’am. I’m going to . . . go back

weren’t sure but now its bothering you. and take your seat, I’m going to hear from

Anybody have anything they need, feel like the lawyers.

they need to bring up with the court, I’ll be

happy to take it up here at the bench, that Mr. Skaggs: Judge, may I ask her a question?

you would feel would in any way would

cause you any difficulty in sitting as a juror Judge: Yes, you may.

in this case. Yes, ma’am, come on up.

Mr. Skaggs: The women’s section. The women’s

[bench conference] section of what?

Ms. Bell: I’m Yvonne Bell. Ms. Bell: The Warren County Jail.

Judge: Yes, Ms. Bell. Mr. Skaggs: Okay, and how many years ago was this, or

was it recent?

Ms. Bell: I feel like I would kind of be partial to

Linda Cline because, when she was in my Ms. Bell: From ’80 . . . about four years, up until last

classes (inaudible) she seemed like she year.

really wanted to do better and I kind of

have sympathy for her in this case, with her Mr. Skaggs: Okay, and so you have seen her since this

being the victim. happened?

Judge: Do you believe the fact that you had her, Ms. Bell: No, I haven’t[.] I haven’t been coming to

you indicated, in Bible studies, and will the (inaudible) for about a year now.

appear as a witness in this case and is

alleged to be one of the victims in this Mr. Skaggs: Well, this happened 18 months ago.

case, do you believe that would influence Ms. Bell: Well, I don’t know. I don’t remember. I

your thinking here and cause you to be never ask any of them about why they’re in

more sympathetic for her side as such as for or any of their business. My whole

you couldn’t sit and be fair and impartial? concern was the word of God. I never talk

No. 02-5907 Miller v. Webb 5 6 Miller v. Webb No. 02-5907

to them about their cases or any of their evidentiary hearing. The Warren Circuit Court heard

personal business. testimony from Miller and his trial counsel, Skaggs. Skaggs

testified that he did not seek to exclude Juror Bell from the

Mr. Skaggs: I see. That’s all. jury because:

Judge: Okay, you may step down. Just take your Most people do not understand the world of extreme hard

seat back. [Juror departs.] Do either of core drug addicts and . . . this case [involved] hard core

you want me to consider striking this drug addicts . . . . It is a different reality. Regular jurors

woman, this juror for cause? do not understand that hard core drug addicts will lie

. . . [.] They will only tell the truth if they have no other

Mr. Wilson: Well. She said she could be fair. She does opportunity. And, since this lady knew Linda Cline,

know the person but she did answer the knew she was completely unworthy of belief, I left her

question that she could be fair. up. . . . Anyone who knew Linda Cline, knew that she

could not be trusted, that was my thinking at the time.

Mr. Skaggs: I have no motion.

On February 2, 1999, the Warren Circuit Court denied

In addition to not challenging Juror Bell for cause, Miller’s Miller’s motion. Miller appealed to the Kentucky Court of

trial counsel did not use a peremptory challenge to remove the Appeals. On January 19, 2001, the Kentucky Court of

prospective juror. Therefore, Juror Bell remained on the jury. Appeals affirmed the Warren Circuit Court’s decision holding

that Miller failed to rebut the presumption that trial counsel’s

On August 19, 1992, the jury, which included Juror Bell, decision to not exclude the juror was sound trial strategy and,

convicted Miller on all charges of the indictment. On therefore, not deficient performance pursuant to Strickland v.

September 2, 1992, the trial court sentenced Miller to life and Washington, 466 U.S. 668 (1984). Miller filed a motion for

to two twenty-year terms of imprisonment, to run discretionary review with the Kentucky Supreme Court. On

consecutively. Miller filed a direct appeal to the Kentucky October 17, 2001, the Kentucky Supreme Court denied

Supreme Court concerning the judgment of conviction and Miller’s motion.

sentence. On September 29, 1994, the Kentucky Supreme

Court affirmed the conviction, but remanded the case for re- After exhausting his remedies in the Kentucky state courts,

sentencing and directed the trial court to run Miller’s life on November 2, 2001, Miller filed a petition for a writ of

sentence concurrently with his forty-year sentence. On habeas corpus, pro se, pursuant to 28 U.S.C. § 2254 in the

November 15, 1994, the trial court re-sentenced Miller in United States District Court for the Western District of

accordance with the Kentucky Supreme Court’s order. Kentucky. Miller raised five claims of ineffective assistance

of counsel. Miller argued that: (1) his attorney failed to seek

On October 26, 1995, with new court-appointed counsel, to exclude Juror Bell, who knew and admired the State’s

Miller filed a motion to vacate the judgment based upon primary witness; (2) his attorney failed to investigate and

ineffective assistance of counsel. Among his allegations, subpoena witnesses to directly contradict the State’s chief

Miller argued that his trial counsel was ineffective when he witness; (3) his attorney attempted to establish an alibi

allowed Juror Bell, a biased juror, to remain on the jury. On defense, which he knew he could not support by credible

September 2, 1998, the Warren Circuit Court held an witnesses; (4) his attorney failed to move for a mistrial after

No. 02-5907 Miller v. Webb 7 8 Miller v. Webb No. 02-5907

a juror had prejudicial exposure to a spectator at trial; and Respondent-Appellant Patti Webb, Warden, waived the

(5) the cumulative effect of his counsel’s errors constituted opportunity to respond to Miller’s appeal.

ineffective assistance.

II. DISCUSSION

On January 7, 2002, the district court referred the matter to

a magistrate judge for a report and recommendation. On May This Court reviews a district court’s legal conclusions in a

28, 2002, the magistrate judge entered findings of fact and habeas petition de novo. Lucas v. O’Dea, 179 F.3d 412, 416

conclusions of law, recommending that the district court deny (6th Cir. 1999). This Court usually reviews findings of fact

the petition on the merits and issue a certificate of for clear error, “but when the district court’s decision in a

appealability on the first issue only, because reasonable jurists habeas case is based on a transcript from the petitioner’s state

could find the assessment of the constitutional claim court trial, and the district court thus makes ‘no credibility

debatable or wrong. On June 10, 2002, Miller filed determination or other apparent findings of fact,’ the district

objections to the findings of fact. On June 19, 2002, the court’s factual findings are reviewed de novo.” Wolfe v.

district court entered an order adopting the magistrate judge’s Brigano, 232 F.3d 499, 501 (6th Cir. 2000) (quoting Moore

report and recommendation. In denying the habeas petition v. Carlton, 74 F.3d 689, 691 (6th Cir. 1996)).

on the first issue, the district court held that Miller failed to

overcome the presumption that trial counsel’s reason for In determining whether to issue a writ of habeas corpus, the

allowing Juror Bell to remain on the jury was sound trial provisions of the Antiterrorism and Effective Death Penalty

strategy. In addition, the district court held that Miller failed Act of 1996 (“AEDPA”) govern the district court’s review of

to show that Juror Bell was actually biased against him. a state court decision.1 28 U.S.C. § 2241. Pursuant to the

Therefore, the district court ruled that Miller failed to show AEDPA,

that the decision of the Kentucky Court of Appeals, which

denied his ineffective assistance of counsel claim, was [a]n application for a writ of habeas corpus on behalf of

contrary to, or an unreasonable application of, clearly a person in custody pursuant to the judgment of a State

established federal law. court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

On July 17, 2002, Miller filed a notice of appeal for the unless the adjudication of the claim–

district court’s denial of his habeas petition based on his first

claim of ineffective assistance of counsel, which the district (1) resulted in a decision that was contrary to, or

court certified. On July 24, 2002, Miller also appealed the involved an unreasonable application of, clearly

district court’s order denying a certificate of appealability on established Federal law, as determined by the Supreme

Miller’s remaining four claims. On January 17, 2003, this Court of the United States; or

Court denied Miller’s application for a partial certificate of

appealability holding that Miller failed to make a substantial

showing of the denial of a constitutional right. This Court

1

determined that Miller’s appeal should proceed on the claim W e decid e this case under the AED PA beca use M iller filed his

that the district court certified: Whether Miller was denied petition for a writ of habeas corpus on November 2, 2001, well after the

the effective assistance of counsel when his trial counsel AE DP A’s effective d ate of A pril 24 , 1996 . See Lindh v. Murphy, 521

U.S. 320 , 336 (1997); Barker v. Yukins, 199 F.3d 867 , 871 (6th Cir.

failed to seek to exclude Juror Bell. On May 12, 2003, 1999).

No. 02-5907 Miller v. Webb 9 10 Miller v. Webb No. 02-5907

(2) resulted in a decision that was based on an Under the AEDPA, therefore, the threshold inquiry is

unreasonable determination of the facts in light of the whether Miller seeks to apply a rule of law that was clearly

evidence presented in the State court proceeding. established at the time of his conviction in the state court. See

id. at 412. Miller seeks to apply the Supreme Court’s holding

Id. § 2254(d). in Strickland v. Washington, 466 U.S. 668 (1984),which the

Supreme Court had clearly established at the time of Miller’s

The Supreme Court explained these requirements for conviction, to show ineffective assistance of counsel. The

habeas relief under 28 U.S.C. § 2254(d)(1) in Williams v. Court in Strickland established a two-prong test to evaluate

Taylor, 529 U.S. 362 (2000). In Williams, the Court held claims of ineffective assistance of counsel pursuant to the

that, in order to justify a grant of habeas relief, a federal court Sixth Amendment. First, the petitioner “must show that

must find a violation of law that is “clearly established” from counsel’s representation fell below an objective standard of

“the holdings, as opposed to the dicta, of [the Supreme] reasonableness. Judicial scrutiny of counsel’s performance

Court’s decisions as of the time of the relevant state-court must be highly deferential, and a fair assessment of attorney

decision.” Id. at 412. The Court held that a state court’s legal performance requires that every effort be made to eliminate

decision is “contrary to” clearly established federal law “if the the distorting effects of hindsight, to reconstruct the

state court arrives at a conclusion opposite to that reached by circumstances of counsel’s challenged conduct, and to

[the Supreme] Court on a question of law or if the state court evaluate the conduct from counsel’s perspective at the time.”

decides a case differently than [the Supreme] Court has on a Id. at 689. A court considering a claim of ineffective

set of materially indistinguishable facts.” Id. at 413. assistance of counsel “must indulge a strong presumption that

Furthermore, the Court held that a state court’s legal decision counsel’s conduct falls within the wide range of reasonable

will be deemed an “unreasonable application” of clearly professional assistance.” Id. Second, the petitioner must

established federal law “if the state court identifies the correct show that counsel’s performance prejudiced the petitioner.

governing legal principle from [the Supreme] Court’s That is, the petitioner must “show that there is a reasonable

decisions but unreasonably applies that principle to the facts probability that, but for counsel’s unprofessional errors, the

of the prisoner’s case.” Id. result of the proceeding would have been different.” Id.

When a biased juror is impaneled, however, “prejudice under

A federal court, however, may not find a state adjudication Strickland is presumed, and a new trial is required.” Hughes

to be unreasonable “simply because that court concludes in its v. United States, 258 F.3d 453, 457 (6th Cir. 2001).

independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or Miller argues that it was ineffective assistance of counsel

incorrectly. Rather, that application must also be for his trial counsel to keep Juror Bell, a biased juror, on the

unreasonable.” Id. at 411. Moreover, a federal court making jury. Pursuant to the Sixth and Fourteenth Amendments, a

the unreasonable application inquiry should not transform the criminal defendant is guaranteed the right to an impartial and

inquiry into a subjective one by inquiring whether all unbiased jury. Morgan v. Illinois, 504 U.S. 719, 727 (1992).

reasonable jurists would agree that the application by the state “Among the most essential responsibilities of defense counsel

court was unreasonable. Rather, the issue is “whether the is to protect his client’s constitutional right to a fair and

state court’s application of clearly established federal law is impartial jury by using voir dire to identify and ferret out

objectively unreasonable.” Id. at 410. jurors who are biased against the defense.” Miller v. Francis,

269 F.3d 609, 615 (6th Cir. 2001); see United States v.

No. 02-5907 Miller v. Webb 11 12 Miller v. Webb No. 02-5907

Blount, 479 F.2d 650, 651 (6th Cir. 1973) (“The primary by the court and must be based on a finding of actual or

purpose of the voir dire of jurors is to make possible the implied bias.’” Id. (quoting Virgin Islands v. Felix, 569 F.2d

empanelling of an impartial jury through questions that permit 1274, 1277 n. 5 (3d Cir. 1978)).

the intelligent exercise of challenges by counsel.” ); see also

Mu’Min v. Virginia, 500 U.S. 415, 431 (1991) (stating that Pursuant to the Sixth Amendment, for a finding of juror

voir dire “serves the dual purposes of enabling the court to impartiality when a juror is challenged for cause, the relevant

select an impartial jury and assisting counsel in exercising question is “did [the] juror swear that he could set aside any

peremptory challenges”); Rosales-Lopez v. United States, 451 opinion he might hold and decide the case on the evidence,

U.S. 182, 188 (1981) (“Voir dire plays a critical function in and should the juror’s protestation of impartiality have been

assuring the criminal defendant that his Sixth Amendment believed.” Patton v. Yount, 467 U.S. 1025, 1036 (1984). A

right to an impartial jury will be honored.”). qualified juror need not be “totally ignorant of the facts and

issues involved.” Murphy v. Florida, 421 U.S. 794, 800

Counsel, however, is granted deference when conducting (1975). Rather, “‘[i]t is sufficient if the juror can lay aside his

voir dire. Hughes, 258 F.3d at 457. “An attorney’s actions impression or opinion and render a verdict based on the

during voir dire are considered to be matters of trial strategy. evidence presented in court.’” Id. (quoting Irvin v. Dowd,

. . . A strategic decision cannot be the basis for a claim of 366 U.S. 717, 723 (1961)). In Irvin, the Supreme Court

ineffective assistance unless counsel’s decision is shown to be stated:

so ill-chosen that it permeates the entire trial with obvious

unfairness.” Id. (citation omitted). Despite this strong In these days of swift, widespread and diverse methods

presumption that counsel’s decisions are based on sound trial of communication, an important case can be expected to

strategy, it is insufficient for counsel to simply articulate a arouse the interest of the public in the vicinity, and

reason for an omission or act alleged to constitute ineffective scarcely any of those best qualified to serve as jurors will

assistance of counsel. “The trial strategy itself must be not have formed some impression or opinion as to the

objectively reasonable.” Miller, 269 F.3d at 616 (citing merits of the case. This is particularly true in criminal

Strickland, 466 U.S. at 681). cases. To hold that the mere existence of any

preconceived notion as to the guilt or innocence of an

A trial court’s management of voir dire is granted similar accused, without more, is sufficient to rebut the

deference. The Supreme Court has acknowledged the presumption of a prospective juror’s impartiality would

“traditionally broad discretion accorded to the trial judge in be to establish an impossible standard. It is sufficient if

conducting voir dire.” Mu’Min, 500 U.S. at 423. A trial the juror can lay aside his impression or opinion and

court’s management of voir dire, however, is “subject to render a verdict based on the evidence presented in court.

essential demands of fairness.” Hughes, 258 F.3d at 457

(citations and internal quotation marks omitted). Because a Irvin, 366 U.S. at 722-23.

petitioner’s Sixth Amendment right to an impartial jury is at

stake, “[a] defendant may obtain a new trial if an impaneled If actual bias is discovered during voir dire, the trial court

juror’s honest responses to questions on voir dire would have must excuse the prospective juror. Hughes, 257 F.3d at 459.

given rise to a valid challenge for cause.” Id. (citing “‘Actual bias is “bias in fact”– the existence of a state of mind

McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, that leads to an inference that the person will not act with

556 (1984)). “‘Challenges for cause are subject to approval entire impartiality.’” Id. at 463 (quoting United States v.

No. 02-5907 Miller v. Webb 13 14 Miller v. Webb No. 02-5907

Torres, 128 F.3d 38, 43 (2d Cir. 1997) (citing United States THE COURT: Anything in that relationship that would

v. Wood, 299 U.S. 123, 133 (1936))). Although bias can be prevent you from being fair in this case?

revealed through a prospective juror’s express admission,

more frequently, jurors are reluctant to admit actual bias and JUROR: I don’t think I could be fair.

the trial court must discover their biased attitudes through

circumstantial evidence. Id. at 459 (citing United States v. THE COURT: You don’t think you could be fair?

Allsup, 566 F.2d 68, 71 (9th Cir. 1977)).

JUROR: No.

Because Miller’s claim for ineffective assistance of counsel

is based on his trial counsel’s failure to strike a biased juror, THE COURT: Okay. Anybody else? Okay. Where did

Miller must show that the juror was actually biased against we leave off?

him. Id. at 458 (citing Goeders v. Hundley, 59 F.3d 73, 75

(8th Cir. 1995) (citing Smith v. Phillips, 455 U.S. 209, 215 Id. at 456. Neither the judge nor counsel asked any follow-up

(1982))). “A juror’s express doubt as to her own impartiality questions. In addition, counsel never attempted to remove the

on voir dire does not necessarily entail a finding of actual juror for cause or by peremptory strike. This Court held that,

bias. The Supreme Court has upheld the impaneling of jurors while a juror’s express doubt as to her ability to be impartial

who had doubted, or disclaimed outright, their own on voir dire does not necessarily result in a finding of actual

impartiality on voir dire.” Id.; see also Patton, 467 U.S. at bias, actual bias was present because neither counsel nor the

1025 (holding that trial court did not commit “manifest error” trial court responded to the juror’s express statement that she

when finding jury members to be impartial despite admitting could not be fair. There was no subsequent assurance of

that they formed an opinion as to the defendant’s guilt due to impartiality and no rehabilitation by counsel or the court

pretrial publicity). through follow-up questions. This Court held that, when left

with only a statement of partiality without a subsequent

This Court in Hughes, however, found actual bias when a assurance of impartiality or rehabilitation through follow-up

juror made an unequivocal statement of partiality and there questions, “juror bias can always be presumed from such

was neither a subsequent assurance of impartiality nor unequivocal statements.” Id. at 460. As a result of finding

rehabilitation by counsel or the court through follow-up actual bias, this Court held that the state court’s denial of the

questions. Hughes, 258 F.3d at 460. In Hughes, the defendant’s ineffective assistance of counsel claim was an

government charged the defendant with theft of government unreasonable application of clearly established federal law.

property and wrongful possession of a firearm in connection

with the robbing of a Deputy United States Marshall. During Our present case is similar to Hughes. As in Hughes, Juror

voir dire, the judge asked potential jurors if they could be fair. Bell did not unequivocally swear that she could set aside her

In response, the following exchange occurred: opinion and decide the case on the evidence. When the trial

judge asked the jury panel whether any individual had

JUROR [Jeanne Orman]: I have a nephew on the police anything else to add, Juror Bell stated, “I feel like I would

force in Wyandotte, and I know a couple of detectives, kind of be partial to Linda Cline because, when she was in my

and I’m quite close to ’em. classes (inaudible) she seemed like she really wanted to do

better and I kind of have sympathy for her in this case, with

her being the victim.” Juror Bell indicated that she was

No. 02-5907 Miller v. Webb 15 16 Miller v. Webb No. 02-5907

“partial” to the government’s key witness. The trial judge failed to respond to Juror Bell’s statement of bias on voir dire,

asked only one follow-up question regarding whether she we find that, as in Hughes, counsel’s failure to respond in turn

could be fair and impartial. In response, Juror Bell stated, “I was objectively unreasonable pursuant to Strickland. “When

think I could be fair,” however, she immediately qualified her a venireperson expressly admits bias on voir dire, without a

statement by stating, “[b]ut I do have some feelings about court response or follow-up, for counsel not to respond [to the

her.” Although defense counsel questioned her further, he statement of partiality] in turn is simply a failure ‘to exercise

only inquired about the women’s section and the jail. Neither the customary skill and diligence that a reasonably competent

counsel nor the judge followed-up on her statement of attorney would provide.’” Hughes, 258 F.3d at 462 (quoting

partiality. They did not ask whether she could “lay aside [her Johnson v. Armontrout, 961 F.2d 748, 754 (8th Cir. 1992)).

feelings] and render a verdict based on the evidence presented

in court.” Irvin, 366 U.S. at 722-23. In this context, when a The Kentucky Court of Appeals held that Miller was not

juror makes a statement that she thinks she can be fair, but denied effective assistance of counsel because Miller failed to

immediately qualifies it with a statement of partiality, actual show that his trial counsel’s decision to leave Juror Bell on

bias is presumed when proper juror rehabilitation and juror the jury was not the result of reasonable professional

assurances of impartiality are absent, as in Hughes. judgment. Miller’s trial counsel, Skaggs, stated that he kept

Juror Bell on the jury because the case was about “hard core

This Court acknowledges that, when asked whether a drug addicts” and Juror Bell knew Linda Cline and “[a]nyone

particular juror can be fair, statements such as “I think I could who knew Linda Cline, knew that she could not be trusted.”

be fair” are not necessarily construed as equivocation. Miller The Kentucky Court of Appeals noted that any error in trial

v. Francis, 269 F.3d at 618. In Miller v. Francis, we stated, strategy regarding the selection of jurors does not generally

“venire members commonly couch their responses to rise to the level of ineffective assistance of counsel.

questions concerning bias in terms of ‘I think.’ Therefore, the

use of such language cannot necessarily be construed as Contrary to the Kentucky Court of Appeals’s decision, the

equivocation.” Id. For a juror to say, “I think I could be fair, decision whether to seat a biased juror cannot be a

but . . . ,” without more, however, must be construed as a discretionary or strategic decision. Id. at 463 (citing United

statement of equivocation. It is essential that a juror “swear States v. Martinez-Salazar, 528 U.S. 304, 316 (2000) (holding

that [she] could set aside any opinion [she] might hold and that the seating of a biased juror who should have been

decide the case on the evidence.” Patton, 467 U.S. at 1036. dismissed for cause requires reversal of the conviction)). As

If a juror does not make such an unequivocal statement, then we previously held, there is no sound trial strategy that could

a trial court cannot believe the protestation of impartiality. support what is essentially a waiver of a defendant’s basic

See id. Accordingly, when the trial court is ultimately left Sixth Amendment right to trial by an impartial jury. Id. If,

with a statement of partiality, as in this case, that is coupled however, there could be such a strategic decision, this case

with a lack of juror rehabilitation or juror assurances of does not present such a situation because Skaggs’s articulated

impartiality, we are left to find actual bias. trial strategy was objectively unreasonable. First, Skaggs’s

reasoning that “anyone who knew Linda Cline, knew that she

When a trial court is confronted with a biased juror, as in could not be trusted” was completely baseless. Juror Bell

this case, the judge must, either sua sponte or upon a motion, never gave counsel nor the court an indication that she did not

dismiss the prospective juror for cause. Frazier v. United trust Linda Cline. On the contrary, Juror Bell believed that

States, 335 U.S. 497, 511 (1948). Because the trial court Linda Cline “wanted to do better” and Juror Bell had

No. 02-5907 Miller v. Webb 17 18 Miller v. Webb No. 02-5907

“sympathy for her in this case, with her being the victim.” It relationship with the victim’s parents would influence her.

was clear that Juror Bell was not an individual who did not Id. at 502. The third prospective juror admitted she read and

trust Linda Cline. Rather, Juror Bell was involved in ministry saw news accounts of the crime and “expressed doubt as to

with Linda Cline and believed in her. whether she could put aside those reports and decide the case

solely on the evidence presented at trial.” Id. at 502-03. The

Second, Skaggs’s reasoning that this case was about “hard fourth prospective juror “doubted he would require the

core drug addicts” and its dependent implication that Juror prosecution to prove its case beyond a reasonable doubt.” Id.

Bell knew about this subject was also baseless. Although at 503. This Court held that “[i]n the absence of an

Juror Bell was a minister at the Warren County Jail, she affirmative and believable statement that these jurors could

specifically stated that she “never ask[ed] any of them about set aside their opinions and decide the case on the evidence

why they’re in for or any of their business. [Her] whole and in accordance with the law, the failure to dismiss them

concern was the word of God. [She] never talk[ed] to them was unreasonable.” Id. (citing Patton, 467 U.S. at 1036).

about their cases or any of their personal business.” In This Court further stated that “it appears that the trial judge

addition, during voir dire, Skaggs never questioned Juror Bell based his findings of impartiality exclusively upon each

about her knowledge of “hard core drug addicts.” Skaggs juror’s tentative statements that they would try to decide this

made an unreasonable assumption that Juror Bell had such case on the evidence presented at trial. Such statements,

knowledge considering that Juror Bell stated that she never without more, are insufficient. . . . The Sixth Amendment

discussed personal business with the ladies. Accordingly, guarantees Wolfe the right to a jury that will hear his case

Skaggs’s trial strategy was objectively unreasonable. It was impartially, not one that tentatively promises to try.” Id.

illogical to keep Juror Bell on the jury when she was partial Therefore, this Court granted habeas relief because the denial

to Linda Cline, the Government’s key witness and victim. No of a challenge for cause violated the petitioner’s Sixth

competent attorney would have employed such a strategy. Amendment right to an impartial jury.

The “‘presence of a biased juror cannot be harmless; the As in Wolfe, when Juror Bell stated, “I think I can be fair.

error requires a new trial without a showing of actual But . . .[,]” there was an absence of an affirmative and

prejudice.’” Hughes, 258 F.3d at 453 (quoting United States believable statement that Juror Bell could set aside her

v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir. 2000) (citations opinion and decide the case on the evidence and in

omitted)). Therefore, because Miller’s trial counsel accordance with the law.2 Such statements of partiality,

impaneled a biased juror, “prejudice under Strickland is without more, are insufficient. See id.

presumed, and a new trial is required.” Id.

Another case in this Circuit that involved juror impartiality

This Court has decided two other notable cases regarding is Miller v. Francis, 269 F.3d 609 (6th Cir. 2001). In Miller

impartial jurors. In Wolfe v. Brigano, 232 F.3d 499 (6th Cir. v. Francis, this Court declined to grant habeas relief for an

2000), the trial court denied the defense’s challenges for cause

of four prospective jurors in a murder trial. The first two

prospective jurors were close friends of the victim’s parents.

2

One of these jurors did not think he could be fair and An affirmative stateme nt of imp artiality is required to ensure that a

impartial. The other stated that she could be fair and juror is unbiased, but such a statement alone is not the determining factor.

impartial, but conceded that it was “hard to say” whether her A trial court must still determine, from the context, whether such a

statement is believable. Patton, 467 U.S. at 1036.

No. 02-5907 Miller v. Webb 19 20 Miller v. Webb No. 02-5907

ineffective assistance of counsel claim. The defendant was Miller has failed to meet his burden. Furrow’s prior

charged and convicted for gross sexual imposition and rape of knowledge of the case was not extensive or detailed.

a minor under the age of thirteen. During voir dire, one juror, Furrow indicated during voir dire that [the victim’s

Patricia Furrow (“Furrow”), stated that she had knowledge of mother] told her over the phone that her son had been

the case, but could not discuss the case in open court because raped, but did not disclose the name of the suspect or any

of privacy concerns. During an in camera examination, details of the event or the investigation. Furrow agreed

Furrow indicated that she was a welfare caseworker to the that she would not necessarily assume that what [the

victim’s mother. Furrow stated that she knew what happened, victim’s mother] told her was true and that she could

but the victim’s mother did not use any names and did not base her judgment on the evidence presented at trial.

discuss the details of the rape or the criminal investigation. Jurors need not be totally ignorant of the facts and issues

Furrow expressed concern about participating on the jury. involved in the case. [Irvin, 366 U.S. at 722.]

She thought it would be uncomfortable for both herself and

the victim’s mother. In addition, she was worried that the Miller v. Francis, 269 F.3d at 616. In denying habeas relief,

victim’s mother would try to telephone her during the trial to this Court distinguished Miller v. Francis from Hughes by

talk about the case. When the prosecutor asked her whether stating that, unlike Hughes, the trial court held a separate in

she could be fair, she replied, “I–it’s tough. I think I could be camera examination of the juror when she indicated she had

fair.” Id. at 612. When defense counsel later asked whether some prior knowledge of the case. During the in camera

her professional relationship with the victim’s mother lent examination, the trial court, the prosecutor, and defense

more credence to the charges against his client, Furrow counsel questioned her regarding her knowledge, her

answered, “No, I don’t really think that I would be biased. relationship with the victim’s mother, and whether she could

Just uncomfortable.” Id. Furrow stated that if a problem be fair and impartial. Unlike the juror in Hughes, “Furrow

arose as a result of her participation as a juror, the victim’s never stated that she could not be fair. While Furrow

mother could be reassigned to a new caseworker. Defense expressed some discomfort about sitting on the jury, she

counsel declined to challenge Furrow for cause or use a consistently answered that she could be fair.” Id. at 617.

peremptory challenge to remove the potential juror. The Therefore, the Court was “not constrained to make a finding

defendant was then convicted for the charged crimes. of actual bias based upon an undisputed statement of a juror

that she could not be fair in deciding the case.” Id.

The defendant, in his habeas petition, argued that his

defense counsel was ineffective for failing to challenge a Unlike Miller v. Francis, where there was no statement of

biased juror and, therefore, the Ohio Court of Appeals partiality, Juror Bell specifically stated she would be “partial”

unreasonably determined that he was not denied the effective to Linda Cline. Juror Bell stated that she had “sympathy for

assistance of counsel. This Court, however, declined to grant her” and believed she was the “victim.” Juror Bell never

habeas relief, holding that the defendant failed to meet his unequivocally stated that she could be fair. On the contrary,

burden of showing actual bias. This Court stated: Juror Bell gave a qualified statement of impartiality.

Moreover, unlike Miller v. Francis, where there was

Because Miller’s claim of ineffective assistance of sufficient questioning regarding the relationship between the

counsel is founded upon a claim that counsel failed to juror and the victim’s mother, when Juror Bell stated, “I

strike a biased juror, Miller must show that the juror was believe I could be fair about it all. But I do have some

actually biased against him. Hughes, 258 F.3d at 458. feelings about her[,]” neither the trial court nor counsel

No. 02-5907 Miller v. Webb 21 22 Miller v. Webb No. 02-5907

inquired further regarding whether she could be fair and ______________

impartial. Without proper follow-up questions directed

toward rehabilitating the juror or obtaining an assurance of DISSENT

impartiality, we are left with a situation as in Hughes in which ______________

we found actual bias. Although defense counsel asked Juror

Bell about the women’s section at the Warren County Jail, he JULIA SMITH GIBBONS, Circuit Judge, dissenting.

never inquired about whether she could be fair and impartial Bell’s statements during voir dire do not demonstrate that she

despite her “feelings.” He never inquired whether she could was actually biased against Miller, and the majority errs in

determine the case based on the evidence and the trial court’s concluding otherwise. Therefore, I respectfully dissent.

instructions. Consequently, the present case is

distinguishable from Miller v. Francis. As an initial matter, some clarification is in order with

respect to the posture of Miller’s ineffective assistance claim.

III. CONCLUSION No state court addressed the issue of whether Miller’s

counsel’s performance prejudiced him. Consequently, we are

Because we find counsel’s performance to have been not constrained under AEDPA by any state court ruling on

objectively unreasonable and we find that impaneling a biased this matter, and we confront it de novo. See Wiggins v. Smith,

juror prejudiced Miller, the Kentucky Court of Appeals’s 123 S.Ct. 2527, 2542 (2003); Maples v. Stegall, 340 F.3d 433,

determination that Miller’s trial counsel’s performance was 437 (6th Cir. 2003). More specifically, no state court

not constitutionally deficient was an unreasonable application determined that Bell either was or was not actually biased

of Strickland, which is clearly established federal law. We, against Miller, which is a question of fact. Fields v.

therefore, REVERSE the district court’s order denying Woodford, 309 F.3d 1095, 1103 (9th Cir. 2002); see also

Miller’s 28 U.S.C. § 2254 petition, and REMAND the case Patton v. Yount, 467 U.S. 1025, 1036 (1984) (characterizing

with instructions that the district court order Petitioner the question of a particular juror’s impartiality as “one of

released from custody unless the State commences a new trial historical fact”). And while the district court found that Bell

within 180 days. was not actually biased against Miller, it reached this

conclusion solely on the basis of transcripts from state court

proceedings; hence, we review the conclusion de novo rather

than for clear error. Miller v. Straub, 299 F.3d 570, 579 (6th

Cir. 2002).

A defendant may prove that his counsel’s failure to strike

a juror prejudiced him only by showing “that the juror was

actually biased against him.” Miller v. Francis, 269 F.3d

609, 616 (6th Cir. 2001) (emphasis added); see also Hughes

v. United States, 258 F.3d 453, 458 (6th Cir. 2001)

(“Petitioner’s ‘claim of ineffective assistance of counsel is

grounded in the claim that counsel failed to strike a biased

juror. To maintain a claim that a biased juror prejudiced him,

however, [Petitioner] must show that the juror was actually

No. 02-5907 Miller v. Webb 23 24 Miller v. Webb No. 02-5907

biased against him.’”) (emphasis added and alteration in demonstrate the actual existence of such an opinion in the

original) (quoting Goeders v. Hundley, 59 F.3d 73, 75 (8th mind of the juror as will raise the presumption of partiality.”)

Cir. 1995)). “Actual bias is ‘bias in fact’ – the existence of a (quotation omitted); see also Miller, 269 F.3d at 616-17

state of mind that leads to an inference that the person will not (noting that it is a defendant’s burden to show actual bias to

act with entire impartiality.” Hughes, 258 F.3d at 463 succeed on an ineffective assistance of counsel claim based

(quotation omitted); see also Murphy v. Florida, 421 U.S. on failure to strike a biased juror and finding that the

794, 800 (1975) (explaining that a juror is not impartial if defendant did not meet this burden because the juror at issue

there actually exists “an opinion in the mind of the juror as expressly indicated that she could decide the case impartially

will raise the presumption of partiality”) (quotation omitted). and because there was no reason given to doubt this

It is distinct from implied bias, which has been described as assurance). A juror’s close and ongoing relationship with a

arising only in “extreme situations where the relationship person involved in the case may undermine the reliability of

between a prospective juror and some aspect of the litigation her assurance of impartiality. Wolfe, 232 F.3d at 502; see

is such that it is highly unlikely that the average person could also Miller, 269 F.3d at 616-17 (crediting a juror’s assurance

remain impartial in his deliberations under the of impartiality despite her acquaintance with the victim’s

circumstances.” Person v. Miller, 854 F.2d 656, 664 (4th Cir. mother because “there is no indication from the record that

1988); see also United States v. Wood, 299 U.S. 123, 134 they shared a close personal relationship”). But merely being

(1936) (defining implied bias as “a bias attributable in law to acquainted with someone involved in the case does not. See

the prospective juror regardless of actual partiality”). McQueen v. Scroggy, 99 F.3d 1302, 1320 (6th Cir. 1996)

(“There is no constitutional prohibition against jurors simply

A juror is impartial if she can disregard her preconceptions knowing the parties involved . . . . The Constitution does not

“and render a verdict based on the evidence presented in require ignorant or uninformed jurors; it requires impartial

court.’” United States v. Angel, 355 F.3d 462, 470 (6th Cir. jurors.”).

2004) (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)). A

juror’s express assurance that she can do so, although not Miller does not succeed in demonstrating that Bell was

necessarily conclusive, cf. Wolfe v. Brigano, 232 F.3d 499, actually biased against him. Bell made numerous express

502 (6th Cir. 2000) (“A court’s refusal to excuse a juror will assurances during voir dire that she could decide Miller’s case

not be upheld simply because the court ultimately elicits from fairly. Specifically, in response to the trial court’s question as

the prospective juror a promise that he will be fair and to whether she could be fair and impartial despite her

impartial.”) (quotation omitted), indicates that she is familiarity with and feelings for Cline, Bell replied, “I think

impartial. See Angel, 355 F.3d at 470; Miller, 269 F.3d at I could be fair. I think I could be fair. . . . I believe I could be

616; Hughes, 258 F.3d at 460 (stating that juror assurances of fair and whether she’s guilty or not guilty. I believe I could

impartiality may be relied upon “in deciding whether a be fair about it all.”1 These statements are not so equivocal

defendant has satisfied his burden of proving actual in and of themselves as to be untenable. See Miller, 269 F.3d

prejudice”). If a juror makes such an assurance, the defendant at 618 (crediting statements by juror that “I think I could be

must demonstrate that it is not to be credited since he bears

the burden of proof on actual bias. See Murphy, 421 U.S. at

800 (“[T]he juror’s assurances that he is equal to [the] task [of 1

deciding a case impartially] cannot be dispositive of the Apparently, in stating that she could be fair in determining “whether

she’s guilty,” Bell momentarily mistook Cline as being the defendant in

accused’s rights, and it remains open to the defendant to the case.

No. 02-5907 Miller v. Webb 25 26 Miller v. Webb No. 02-5907

fair” and “I don’t really think that I would be biased”). never stated that she believed Miller was the murderer. Also,

Indeed, “venire members commonly couch their responses to as in Celestine, there is no indication that she discussed the

questions concerning bias in terms of ‘I think’” such that “the crime at issue with Cline.

use of such language cannot necessarily be construed as

equivocation.” Id. In sum, Miller fails to meet his burden of showing that Bell

possessed actual bias against him, and, as a result, he also

Furthermore, Miller provides no reason to doubt the fails to meet his burden of showing that his counsel’s failure

validity of Bell’s assurances. As evidenced by the fact that to strike Bell was prejudicial. Thus, we should affirm the

Bell had not seen Cline in at least a year at the time of voir district court’s denial of Miller’s ineffective assistance claim

dire, the two did not share a close and ongoing relationship. and of his petition for a writ of habeas corpus more generally.

Nor is there any reason to believe that Bell’s sympathy for

Cline was so strong as to undermine the reliability of her The majority, of course, reaches a contrary conclusion. It

assurance that she could evaluate the case fairly and finds that, although Bell stated “I think I could be fair,” she

impartially. Expressions of sympathy for a victim, without never made an unequivocal statement of impartiality and, in

more, do not demonstrate actual bias where the juror has fact, made express statements of partiality. There are

assured the court that she may decide the case fairly. For numerous problems with this conclusion and the manner in

example, in Ainsworth v. Calderon, 138 F.3d 787, 796 (9th which the majority reaches it. First, Bell said much more

Cir. 1998), a juror indicated during voir dire that “she was than “I think I could be fair”:

unsure whether she could disregard the information she had

gathered from news sources and decide the case based only on I think I could be fair. I think I could be fair. I

the evidence presented at trial.” The defendant sought a ministered in the women’s section for about four years.

change of venue, which was denied. Id. at 795. On habeas [Cline] was kind of in and out, but she seemed like she

review, he claimed that this denial was erroneous because the wanted to do better, but I believe I could be fair and

juror in question was actually prejudiced against him. Id. at whether she’s guilty or not guilty. I believe I could be

795-96. The court rejected this assertion, noting that there fair about it all.

was “no indication that [the juror] had the opinion that [the

defendant] was the murderer, and she repeatedly stated she Far from saying so in an isolated statement, Bell reiterated

could set aside her feelings of sympathy for [the victim] in again and again that – despite her familiarity with Cline – she

order to judge the case fairly.” Id. at 796; see also Celestine could decide Miller’s case fairly.

v. Blackburn, 750 F.2d 353, 360 (5th Cir. 1984) (holding that

state court did not err in refusing to dismiss for cause a juror Additionally, by describing them as statements of partiality,

who knew the granddaughter of the victim because, even the majority ascribes significance to certain of Bell’s

though her testimony at voir dire indicated her emotions statements that the words do not justify. For example, the

might affect her ability to deliberate, “she consistently stated majority latches on to Bell’s initial comments that “I feel like

that her feelings would not so influence her as to prejudice her I would kind of be partial to Linda Cline” and “I kind of have

against [the defendant]” and “[s]he had not discussed the sympathy for her in this case, with her being the victim.”

murder with the granddaughter, and she repeatedly denied First of all, these “kind of” statements are hardly unequivocal.

bias”). As in Ainsworth, Bell repeatedly stated that she could Second, as discussed, expressions of sympathy for a victim

decide the case fairly despite her sympathy for Cline, and she do not necessarily demonstrate partiality. Third, the majority

No. 02-5907 Miller v. Webb 27 28 Miller v. Webb No. 02-5907

injects legal content into Bell’s use of the term “partial,” Because Miller has not articulated a valid reason to disregard

construing it to mean that she cannot decide the case on the these statements, they deserve our credence.2

evidence before her and that she is admitting bias against

Miller. However, her full testimony indicates that Bell uses In reaching its conclusion, the majority analogizes this case

“partial” to indicate sympathy, or having a liking or fondness to Hughes. The analogy is inapt. In Hughes, the juror

for, Oxford English Dictionary (2d ed. 1989), Cline. unequivocally stated during voir dire, “I don’t think I could

Moreover, imputing import to Bell’s use of the word “partial” be fair.” 258 F.3d at 456. In response, the trial court asked

and to her initial indication of sympathy for Cline the juror, “You don’t think you could be fair?”, to which the

conveniently ignores the fact that, after she made these juror starkly replied, “No.” Id. Most importantly, the juror

statements, the trial court, apparently concerned about Bell’s never individually stated or suggested whatsoever that she

potential partiality, immediately questioned her about her could be impartial, either initially or through rehabilitation.

ability to serve on the jury impartially, to which Bell Id. at 460 (“[The juror] never said that she would be able to

responded repeatedly that she could be fair in deciding render a fair and impartial verdict.”). Left only with a

Miller’s case. statement in the record that she could not be fair, this court

was able to presume the juror was partial and actually biased

Ultimately, however, the linchpin of the majority’s against the defendant. Id.; see also Miller, 269 F.3d at 617

conclusion that Bell unequivocally indicated partiality is the (“Because the only evidence relevant to the issue of bias [in

fact that, after stating for the last time that she could decide Hughes] was the juror’s statement that she did not think she

Miller’s case fairly, she said, “But I do have feelings about could be fair, we had no choice but to find actual bias.”)

[Cline].” While this remark may constitute a statement of (emphasis added).

partiality in the sense that it evidences empathy for Cline,

Bell is not asserting that she would not be able to decide fairly The case sub judice could not be more different. Here, Bell

Miller’s guilt or innocence. Rather, the statement was simply never stated that she did not think she could be fair. Quite the

a reaffirmation of Bell’s earlier statement that “she kind of contrary, she stated that she believed she could be fair “about

[had] sympathy for Cline, with her being the victim,” a it all.” And she said so again and again. In an attempt to fit

feeling she repeatedly explained would not affect her ability this case within the bounds of Hughes, the majority posits that

to decide Miller’s case fairly. At no point did Bell ever it is “ultimately left with a statement of partiality” without

indicate that her concern for Cline would make her more “juror assurances of impartiality,” whereas, in reality, we are

likely to accept Cline’s testimony as true, would predispose left with numerous statements of impartiality without any

her to credit evidence offered against Miller, would lead her express assertion from Bell that she could not decide the case

to discount testimony offered on Miller’s behalf, or would in

any way incline her to believe that Miller was guilty. The

only express statements we have from Bell regarding her 2

At most, the majority could conclude – though I would still disagree

ability to decide the case are: “I think I could be fair. I think – that Bell’s statements of feelings toward Cline undermine her assertion

I could be fair. . . . I believe I could be fair and whether she’s of impartiality, see W olfe, 232 F.3d at 502 (“[T]he sec ond juror’s

guilty or not guilty. I believe I could be fair about it all.” assessment that she could be fair and impa rtial [is] untenable [] in light of

both the close relationship between the juror and the victim’s family, and

the fact that she knew the family’s theory of the victim’s death.”), but to

characterize them as stateme nts of pa rtiality in and of them selves is

unfounded.

No. 02-5907 Miller v. Webb 29 30 Miller v. Webb No. 02-5907

fairly. In other words, what enabled the court in Hughes to conclusion. In assessing whether a juror was actually biased

presume partiality – a blatant statement of partiality and against a defendant, we should consider the totality of her

absolutely no contrary statement from the juror that he could statements, see Hightower v. Schofield, 365 F.3d 1008, 1041

be impartial – is glaringly absent here. Thus, to reach its (11th Cir. 2004); see also Miller, 269 F.3d at 618

conclusion, the majority contorts the holding of Hughes, (considering all the statements made by the juror during voir

which stands for the proposition that a juror may be presumed dire); cf. Pruett v. Norris, 153 F.3d 579, 587 (8th Cir. 1998)

to be actually biased against a defendant when he makes no (assessing actual prejudice under the totality of the

express statements of impartiality but instead expressly states circumstances); Stafford v. Saffle, 34 F.3d 1557, 1567 (10th

that he does not believe he can be fair in determining a Cir. 1994) (“We review actual prejudice by examining the

defendant’s innocence or guilt and no effort is made to totality of the circumstances.”), not merely the statement that

rehabilitate that juror specifically. The court unjustifiably comes last-in-time.

extends this holding to allow for a presumption of partiality

even when the juror has made express statements of I do not believe that the totality of Bell’s statements

impartiality. demonstrates that she was actually biased against Miller.

Hence, I also believe that Miller’s counsel’s performance was

The majority also analogizes this case to Wolfe. In Wolfe, not so objectively unreasonable as to be deficient under

the court found that the trial court erred in failing to excuse Strickland v. Washington, 466 U.S. 668 (1984). Cf. Miller,

four jurors for cause. 232 F.3d at 502-03. However, each of 269 F.3d at 618-19 (“[T]he trial court cannot be faulted for

these jurors expressly doubted his or her ability to decide the not disqualifying for cause a juror who consistently says that

case fairly. One juror “did not think he could be a fair and she thinks she can be fair.”). In conclusion, I would affirm

impartial juror.” Id. at 502. The second juror stated it was the district court’s denial of Miller’s ineffective assistance of

“hard to say” whether her relationship with the victim’s counsel claim and, ultimately, its denial of his petition for a

parents would impact her ability to deliberate fairly. Id. The writ of habeas corpus. Since the majority does otherwise, I

third juror “expressed doubt as to whether she could put aside respectfully dissent.

[news] reports and decide the case solely on the evidence

presented at trial.” Id. at 502-03. Finally, the fourth juror

“doubted he would require the prosecution to prove its case

beyond a reasonable doubt.” Id. at 503. When asked about

her partiality, Bell expressed no such doubt about her ability

to decide Miller’s case fairly. Wolfe is simply inapposite.

One final difficulty I have with the majority’s holding is

that it reduces the inquiry into a juror’s actual bias to a

question of chronology. If a juror swears repeatedly that she

can be fair in deciding a defendant’s innocence or guilt but

then indicates in her final statement that she has some degree

of sympathy for the victim, the majority would have it that a

court can only conclude that the juror is actually biased

against the defendant. I simply cannot subscribe to this