Warren English v. Mary Berghuis

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 18a0177p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WARREN EDWARD ENGLISH, III, ┐

Petitioner-Appellant, │

│

> No. 16-2676

v. │

│

│

MARY BERGHUIS, Warden, │

Respondent-Appellee. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:09-cv-01012—Janet T. Neff, District Judge.

Argued: April 25, 2018

Decided and Filed: August 21, 2018

Before: COLE, Chief Judge; GUY and DONALD, Circuit Judges.

_________________

COUNSEL

ARGUED: David A. Dodge, DODGE & DODGE, P.C., Grand Rapids, Michigan, for

Appellant. Bruce H. Edwards, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellee. ON BRIEF: David A. Dodge, DODGE & DODGE, P.C.,

Grand Rapids, Michigan, for Appellant. Bruce H. Edwards, OFFICE OF THE MICHIGAN

ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

_________________

OPINION

_________________

BERNICE BOUIE DONALD, Circuit Judge. Petitioner-Appellant Warren Edward

English III (“English”) appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus

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petition in connection with his conviction by a Michigan jury of third-degree criminal sexual

conduct. Before this Court in the present appeal is a single substantive issue: whether English’s

Sixth Amendment right to an impartial jury was violated as a result of a juror’s failure to disclose

her own sexual assault on voir dire. There is also a threshold procedural issue: the proper

standard of review.

I. Background of the Case

In 2006, English was convicted by a jury in Michigan’s 45th Circuit of third-degree

criminal sexual conduct, in violation of Mich. Comp. Laws § 750.520d(1)(c) (penile-vaginal

penetration–victim physically helpless). The charged conduct was sexual intercourse with a

seventeen-year-old acquaintance while she was asleep at English’s home during a party. The

trial court sentenced English to 21-180 months’ imprisonment. English has since been released

from prison.

At voir dire, the trial court had stated to the jury venire that an accused “has the right to a

trial . . . by a jury of [twelve] impartial persons . . . ” who “must be free as humanly possible,

from bias, prejudice, or sympathy for either side.” The court further announced that voir dire

questions aimed “to find out if [each prospective juror] ha[d] any opinions or personal

experiences that might influence [her] for or against the prosecution, the defendant, or any

witnesses. One or more of these things could cause you to be excused.”

Subsequent to the trial, at an evidentiary hearing held on September 29, 2006, “Juror A,”

a member of the jury that convicted English, revealed that her father had sexually abused her at

age eight. Juror A stated that she heard and understood the judge’s instruction to pay attention to

questions and answers to other jurors during voir dire, and that she did pay attention, but she

only “vaguely” recalled certain jurors’ testimony that they had suffered sexual abuse; those

jurors’ going into conference with the court outside the presence of the other jurors; and those

jurors’ subsequently being excused for cause. Asked whether she recalled that one or more

jurors who indicated that they or a family member had suffered sexual assault had been

“excuse[d] for cause,” she said she “d[id]n’t remember that happening.” Juror A testified that

the abuse had occurred “years ago,” that she and her father had long since reconciled, and that

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“[w]hat had happened to me years ago happened to me years ago and I don’t have a problem

with it.”

Juror A denied that she had attempted “to hide anything from the Court.” When asked

the reason for the nondisclosure, she said she must have “thought that there would have to be a

conviction or that I would have had to went to the police” to report the abuse, in order for her to

have been a victim in a criminal sense. However, Juror A stated that, when interviewed by the

private investigator, she mistakenly thought she had revealed the abuse to the court. She also

testified that she had “reconciled [with her abuser] many, many, many years ago,” and that

“[w]hat had happened to me years ago happened to me years ago and I don’t have a problem

with it.”

English moved for a new trial based on juror misconduct; the motion was heard in a

videotaped hearing on December 8, 2006 before Michigan Circuit Court for the 45th District.

The court granted the motion, citing People v. Manser, 645 N.W.2d 65 (Mich. 2002) (overruled

in part, People v. Miller, 759 N.W.2d 850, 863 & n.26 (Mich. 2008)). Emphasizing that there

was “a material omission on the part of Juror A,” the court found that this omission

compromised not only English’s but “both sides’ right to a fair and impartial jur[y].” The court

found it irrelevant “that Juror A [wa]s convinced that she was fair and impartial,” because she

“had the duty to disclose” the past sexual abuse. In the court’s estimation, had Juror A made the

revelation, as was her duty, the trial court would have excused Juror A for cause, or defense

counsel would have exercised one of its remaining peremptory challenges to have her excused.

The prosecution appealed to the Michigan Court of Appeals, which reversed in a 2-1

decision on December 4, 2007 and reinstated English’s conviction. People v. English, No.

269887, 2007 WL 4245412 (Mich. App. Dec. 4, 2007). The majority based its decision not on

the alleged constitutional deprivation of the right to an impartial jury, but rather on the trial

court’s “belief that a victim of sexual abuse should automatically be excused from sitting on a

sexual conduct jury,” which the majority found “erroneous.” Id. at *1. The majority

distinguished Manser because “the experiences of the juror were similar in nature to the charges”

against the defendant there, whereas the experience Juror A failed to disclose here was, in the

majority’s view, “very much different” than the allegations against English: “The juror in this

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case has [subsequently] disclosed that a family member molested her at age eight[,] whereas

defendant raped a seventeen-year-old acquaintance while she slept.” Id. at *2.

The dissent1 agreed with the majority that “a victim of sexual assault is not automatically

excusable for cause,” but felt the proper “remedy for the trial court’s erroneous analysis” was not

reinstatement of the verdict, but rather “remand for reconsideration under the proper legal

standard.” Id. at *5 (White, J., concurring in part and dissenting in part). The dissent explained:

While the trial court erred in finding that the juror was excusable for cause simply

because the juror had been sexually abused, it does not follow that the juror was

not, in fact, excusable for cause. A trial court is not obliged to accept a juror’s

declaration that the juror is not biased if there is reason to doubt the assertion.

Rather, a trial court must make its own determination, taking into account all the

circumstances, including the juror’s statements and demeanor, whether the juror

can be fair and impartial. Here, the trial court should make a determination on

remand, considering the circumstances of the voir dire, the later disclosure, the

credibility of the juror’s explanation and declaration of impartiality, and any other

relevant factors.

Id.

English subsequently sought review from the Michigan Supreme Court, which denied

English’s application for leave to appeal using routine language on February 6, 2008. People v.

English, 743 N.W.2d 909, 910 (2008). Two justices dissented, agreeing with the dissent below

that the case should have been “remand[ed] . . . to the trial court for reconsideration under the

appropriate standard, as explained in the partially dissenting opinion in the Court of Appeals, of

whether the juror was excusable for cause.” Id. (Cavanagh and Kelly, JJ., dissenting).

English then filed a habeas petition, which the district court dismissed without prejudice

for failure to exhaust state-court remedies. English v. Berghuis, No. 1:08-CV-856, 2008 WL

4534426, at *1 (W.D. Mich. Sept. 30, 2008).

1The dissenting judge, Judge White, is now a member of this Court. She has recused herself from

consideration of this case.

No. 16-2676 English v. Berghuis Page 5

In December 2008, English filed a motion for relief from judgment in state court, which

the trial court denied. The court opined that the juror may have had at least “subconscious[]”

bias but held that the court was bound by the Court of Appeals decision and lacked the authority

to revisit the issue. The Michigan Court of Appeals and the Michigan Supreme Court denied

discretionary review, using routine language.

On November 4, 2009, English filed a new § 2254 habeas petition in district court, which

was dismissed on December 21, 2009 pursuant to Rule 4.2 The district court also denied English

a certificate of appealability (“COA”). English appealed and was granted a COA by this Court,

solely as to the juror impartiality issue. On July 10, 2013, this Court reversed and remanded for

further proceedings. English v. Berghuis, 529 F. App’x 734 (6th Cir. 2013). We concluded that

the district court’s deference to the state courts was an improper basis to deny English’s habeas

petition, because the district court failed to make the requisite determination that English’s

federal claim had been adjudicated on the merits. Id. at 745. The Court further concluded that,

“given the complex procedural, evidentiary, and constitutional questions raised by [English’s]

petition, it was an inappropriate candidate for summary dismissal under Rule 4.” Id.

We remanded to the district court for “determination of the adjudication question,

applying the Richter/Williams rebuttable presumption,” with “full briefing by the parties and a

review of the complete state court record.” Id. The Court further directed that should the district

court find “the presumption of adjudication . . . rebutted, it must conduct de novo consideration

of the merits of English’s Sixth Amendment claim regarding the misconduct of Juror A.” Id. If,

in contrast, the district court found the presumption not rebutted and deference under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) applicable, “the court must still

evaluate English’s Sixth Amendment claim through the AEDPA lens, applying the McDonough

[Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984)]3 test to determine whether English

was denied his Sixth Amendment right to be tried by a fair and impartial jury, as that right is

2Rule 4 states, in relevant part: “If it plainly appears from the motion, any attached exhibits, and the

record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and

direct the clerk to notify the moving party.” Rules Governing Section 2254 Cases in the United States District

Courts, Rule 4(b) (emphases added).

3See infra section III.B.

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elucidated by Supreme Court precedent.” Id. (alteration added). The dissent found that English

had not “me[]t his burden of establishing the basis for a new trial” and therefore disagreed that

remand was necessary. Id. (Suhrheinrich, J., dissenting).

On remand, after briefing, the magistrate judge issued a report and recommendation

(“R&R”) recommending dismissing English’s petition as without merit under either AEDPA

deference or de novo review. Regarding the deferential AEDPA analysis, the magistrate judge

incorporated the district court’s reasoning from its denial of English’s original habeas petition.

Under de novo analysis, the magistrate judge concluded that English failed to establish either that

Juror A deliberately concealed her having been a victim of sexual assault, or that she had actual

bias. Over English’s objections, the district court adopted the magistrate judge’s R&R, holding

that English had not shown that Juror A deliberately concealed her history, or demonstrated

actual bias; the district court also declined to issue English a COA.

English subsequently sought a COA from this Court, which granted it on October 12,

2017. This Court found that “[r]easonable jurists could—and indeed have—disagreed on

whether English was denied his right to a fair trial” because of Juror A’s nondisclosure. English

v. Berghuis, No. 16-2676 (6th Cir. Oct. 12, 2017) (order) at 3. Therefore, the Court concluded,

English made “a substantial showing of the denial of a constitutional right.” Id. (quoting

28 U.S.C. § 2253(c)(2) and citing Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). The COA

was granted on the issue of whether English’s Sixth Amendment fair trial right was violated as a

result of Juror A’s nondisclosure. Id.

II. Standard of Review

Under the AEDPA’s amendment of the § 2254 habeas standard, a petitioner carries a

heavy burden:

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim—

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(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). It is not enough that a reviewing court conclude that the state court

“incorrectly” applied clearly established federal law; rather, the state court must have done so

unreasonably. Williams v. Taylor, 529 U.S. 362, 409-12 (2000); see also Ayers v. Hudson,

623 F.3d 301, 308 (6th Cir. 2010) (quoting Harris v. Haeberlin, 526 F.3d 903, 909 (6th Cir.

2008)) (“[T]he central inquiry is whether the state court decision was objectively

unreasonable.”). Whether AEDPA deference actually applies, though, is at issue.

III. Analysis

A. Issue of Applicable Standard of Review

On § 2254 review of a state court decision, the reviewing court faces a crucial threshold

question: whether the state court actually adjudicated the defendant’s claim on the merits. If the

court determines that the state court did so, AEDPA deference applies, as noted above. See

28 U.S.C. § 2254(d); Brown v. Smith, 551 F.3d 424, 428 (6th Cir. 2008). If, however, the state

court did not so adjudicate the claim, the claim is reviewed de novo for questions of law, and for

clear error as to questions of fact. Robinson v. Howes, 663 F.3d 819, 823 (6th Cir. 2011).

The government contends that, in finding that English “ma[de] no showing that he was

prejudiced by” Juror A’s presence on the jury, “nor did the trial court make any such finding of

prejudice,” English, 2007 WL 4245412, at *3, the state appellate court “adjudicated the claim on

the merits.” (Appellee’s Br. at 18, 22-28). English argues for de novo review because “the

Michigan Court of Appeals based its decision on independent grounds” from the merits of

English’s claim, thus rebutting the presumption of adjudication. (Appellant’s Br. at 24, 42-43).

A reviewing court must apply a “strong but rebuttable” presumption that a federal claim

was adjudicated on the merits by the state court—often referred to as “the Richter/Williams

rebuttable presumption,” after the two cases announcing it: Harrington v. Richter, 562 U.S. 86

(2011), and Johnson v. Williams, 568 U.S. 289 (2013). Richter held that “[w]hen a federal claim

No. 16-2676 English v. Berghuis Page 8

has been presented to a state court and the state court has denied relief, it may be presumed that

the state court adjudicated the claim on the merits [absent] any indication or state-law procedural

principles to the contrary.” 562 U.S. at 99 (alterations added). Williams expressed this

presumption more strongly: “When a state court rejects a federal claim without expressly

addressing that claim, a federal habeas court must presume that the federal claim was adjudicated

on the merits—but that presumption can in some limited circumstances be rebutted.” 568 U.S. at

300-01 (emphasis added).

One circumstance permitting rebuttal of the presumption is where “the state standard is

less protective” than the federal standard, or the state court “simply mentioned in passing

or . . . buried in a string cite” the federal constitutional provision or precedent. Williams,

568 U.S. at 301. The Supreme Court has also instructed more broadly that “[t]he presumption

may be overcome when there is reason to think some other explanation for the state court’s

decision is more likely.” Richter, 562 U.S. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797,

803 (1991)).

Importantly, for AEDPA deference to apply, the state-court adjudication must have been

“on the merits.” 28 U.S.C. § 2254(d). The Supreme Court has explained that “[a] judgment is

normally said to have been rendered ‘on the merits’ only if it was ‘delivered after the

court . . . heard and evaluated the evidence and the parties’ substantive arguments.’” Williams,

568 U.S. at 302 (quoting Black’s Law Dictionary 1199 (9th ed. 2009)). Williams further

clarified that “merits” means the “intrinsic rights and wrongs of a case”—as to substance, not

form. Id. at 302-03 (quotation omitted).

The Michigan Court of Appeals decision gives strong grounds for overcoming the

presumption of adjudication. The opinion fails to reach the merits of English’s claim, instead

holding that the trial court erred in applying a presumption of automatic excusal of prospective

jurors who had been victims of sexual assault from sexual-offense trials. English, 2007 WL

4245412, at *1. As this Court expressed it, “the decision was a judgment on the trial court’s

misunderstanding of the law.” English, 529 F. App’x at 743. In concluding that the presumption

of adjudication was overcome by the state appellate court’s decision, this Court observed that:

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[b]y simply negating the trial court’s ruling, without making its own finding as to

whether Juror A was biased or otherwise excusable for cause, and without

remanding for further proceedings under the proper legal standard, the [state]

court of appeals appears to have left English’s Sixth Amendment and state law

claims unresolved as to their merits.

Id. (alterations added). As English observes, this Court’s finding that the state appellate court

left English’s Sixth Amendment claim unresolved on the merits is the law of the case here.

(Reply Br. at 8, 10 (citing, inter alia, United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.

1994) (findings made at one point in the litigation become law of the case for subsequent

stages)).

The conclusion that there was no adjudication on the merits certainly underlay the dissent

on the Michigan Court of Appeals, with which two justices concurred in their own dissent on

review by the Michigan Supreme Court: “While the trial court erred in finding that the juror was

excusable for cause simply because the juror had been sexually abused, it does not follow that

the juror was not, in fact, excusable for cause.” English, 2007 WL 4245412, at *5 (White, J.,

dissenting); see also English, 743 N.W.2d at 910 (Cavanagh and Kelly, JJ., dissenting).

The government understandably points to the state appellate court’s finding that English

“ma[de] no showing that he was prejudiced by” Juror A’s presence on the jury as reinforcing the

presumption of adjudication. (Appellee’s Br. at 18 (quoting English, 2007 WL 4245412, at *3)).

“This language,” the government urges, “constituted a merits adjudication of English’s Sixth

Amendment claim because it utilized the controlling test.” (Id. at 24).

However, the source of the appellate court’s use of the word “prejudice” is not the federal

standard, but rather the Michigan standard from People v. Daoust: “[W]hen information

potentially affecting a juror’s ability to act impartially is discovered after the jury is sworn, the

defendant is entitled to relief only if he can establish (1) that he was actually prejudiced by the

presence of the juror in question or (2) that the juror was properly excusable for cause.”

577 N.W.2d 179, 184 (Mich. Ct. App. 1998).4 Arguably, the court cannot even be said to have

4As this Court noted, however, “[b]oth Daoust and Manser, the case relied upon by English in his motion

for a new trial, have since been overruled by People v. Miller, 759 N.W.2d 850, 863 (Mich. 2008) (holding that a

No. 16-2676 English v. Berghuis Page 10

adjudicated English’s state-law claim on the merits, because prejudice is merely one of two,

disjunctive, prongs. See id.

Even less tenably can it be argued that the court adjudicated English’s federal claim.

Daoust sets petitioners a higher bar and is thus “less protective,” see Williams, 568 U.S. at 301,

than the federal standard, which only requires a showing that the juror “failed to answer honestly

a material question on voir dire” and “that a correct response would have provided a valid basis

for” a for-cause challenge, McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556

(1984).

Because the state appellate court’s use of the Daoust language implicitly invoked a “state

standard . . . less protective” than the federal standard, one of the circumstances rebutting the

presumption of adjudication is met. See Williams, 568 U.S. at 301. This circumstance, along

with the appellate court’s disposition of the State’s appeal on grounds independent from

English’s substantive claim, supports the conclusion that the Richter/Williams strong

presumption is overcome here.

B. Sixth Amendment Right to an Impartial Jury

The fair trial right secured by the Sixth Amendment guarantees, in pertinent part, that an

accused is entitled to “trial[] by an impartial jury.” U.S. Const. amend. VI. The Supreme Court

has held the right to jury trial in criminal cases “fundamental to our system of justice.” Duncan

v. Louisiana, 391 U.S. 145, 153-54 (1968). The right to a jury trial presupposes “an absolute

right to a fair and impartial jury.” People v. Tyburski, 518 N.W.2d 441, 447 (Mich. 1994) (citing

Duncan, 391 U.S. 145).

The legal framework for a claim of juror bias such as the one asserted here comes from

McDonough, 464 U.S. 548. Under McDonough, for a prospective juror’s nondisclosure to

warrant a new trial, a defendant must show that (1) the juror “failed to answer honestly a material

question on voir dire,” and (2) “a correct response would have provided a valid basis for a

challenge for cause.” Id. at 556. That is, the nondisclosure must have denied the defendant his

new trial is not always required whenever a juror would have been excusable for cause, since the proper inquiry is

whether the defendant was denied his right to an impartial jury).” English, 529 F. App’x at 741 n.4.

No. 16-2676 English v. Berghuis Page 11

Sixth Amendment right to an impartial jury. See id. The district court found, and the parties do

not dispute, that English satisfied the first McDonough prong by showing that Juror A omitted

material information on voir dire. That leaves, as the substantive heart of this appeal, the second

prong: whether “a correct response would have provided a valid basis” for a for-cause challenge.

See id. That inquiry asks whether the defendant would have had a “basis for arguing that [the]

court is required to sustain” the challenge. See United States v. Shaoul, 41 F.3d 811, 816 (2d Cir.

1994).

The intentional or unintentional nature of a juror’s omission has a crucial implication:

where the omission was unintentional, the petitioner must show “actual bias,” but where the

omission was intentional, bias may be inferred. Zerka v. Green, 49 F.3d 1181, 1186 (6th Cir.

1995) (quoting United States v. Patrick, 965 F.2d 1390, 1399 (6th Cir. 1992)). In its analysis of

the implied bias issue here, the district court found that “there [was] no evidence to support the

contention that [Juror A] deliberately withheld” the abuse, thus undercutting any argument of

inferred bias.

However, that conclusion overlooks evidence from the following components of the

record: (1) questions, answers, and excusals for cause on voir dire, which Juror A testified that

she heard and observed, and (2) Juror A’s testimony at the evidentiary hearing. The magistrate

judge noted that “the judge did not initially ask whether any of the potential jurors had been a

victim of a crime or sexually assaulted.” In fact, a number of other pertinent statements and

questions were articulated to the venire.

First, the trial court’s statements to the venire at the outset of voir dire included not only

at least one question about being a “victim or accused of a crime,” but another underscoring the

type of case involved—criminal sexual conduct. In addition, the prosecutor asked, “Knowing

that this case deals with [criminal sexual conduct] charges, I know that the judge has brought it

up, but is there anyone just because of the type of case it is, is going to have trouble sitting on

this case?”. The court also asked broadly about experiences that might affect impartiality:

[W]e need to find out if you have any opinions or personal experiences that might

influence you for or against the prosecution, the defendant, or any witnesses. One

or more of these things could cause you to be excused, in this particular case,

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even though you may otherwise be qualified as a juror. The questions may probe

deeply into your attitudes, beliefs, and experiences. They are not meant to be an

unreasonable prying into your private life. The law requires that we get this

information so that an impartial jury can be chosen.

(Id., PgID#612) (emphases added). If a juror preferred to raise a matter privately, she need only

advise the court, and a private conference would be held in chambers.

Critically, in the presence of the jury pool, one prospective juror informed the trial court

that she and her sister had been molested by her stepfather. A separate conference ensued, and

then, back before the jury pool, the court stated: “[W]e have excused [the juror] for cause,” 5

When asked by the trial court at the evidentiary hearing whether she recalled the juror stating

that she had been molested by her stepfather, Juror A answered, “[v]aguely.” She again

answered, “[v]aguely,” regarding whether she recalled the judge stating that there would be a

private conference in chambers, and whether she recalled the judge returning to the courtroom

and announcing that the juror had been excused for cause. (Id.). The court then restated the

question, to which Juror A again responded with the word “vaguely” but expanded somewhat:

Q: [O]ne of the perspective [sic] jurors indicated that . . . she and her sister were

molested by the stepfather. Then after this outside conference, the judge came

back and announced that [the juror] had been excused for cause. Do you

recall something like that?

A: I really—it’s been a while. Vaguely. I mean, I can’t remember. A lot of

people—a few people went in, I know that.

Juror A also testified, both at voir dire, and in the evidentiary hearing, that she paid attention

throughout the voir dire proceedings and listened to all questions and answers.

In addition, the record includes troubling testimony by Juror A at the evidentiary hearing,

where she admitted that she failed to “disclose . . . the history of sexual assault to the Court or to

either of the lawyers at any time during the jury selection.” In her testimony, Juror A made

5At least two other jurors were excused for cause relating to sexual assault. Four minutes after excusal of

the juror who was molested by her stepfather, another juror stated in open court that her son had been accused of

molesting a child. After a private conference, the venire was informed that that juror, too had been excused for

cause. Four minutes after that excusal, another juror went into private conference, and was excused for cause, (id.,

PgID#652). This juror had been molested by a cousin, though this was not mentioned in open court. Juror A was

questioned by the court one hour and fifteen minutes after the excusal of the juror who was molested by her

stepfather.

No. 16-2676 English v. Berghuis Page 13

three, at least partly contradictory, assertions regarding her nondisclosure. First, Juror A stated

that when she spoke with defense counsel’s private investigator after the trial,6 she thought she

had disclosed the assault. She repeated at various points that “in [her] own mind, [she] thought

that [she] had” disclosed. Indeed, she stated, in answer to the court’s question regarding having

thought that she had informed the court, “Yes, I did. Yes, I did, at the point that when I talked to

[the private investigator] and even until now I’m not 100—.”

Second, in answer to the court’s question whether she “had thought about in [her] mind

why [she] may not have provided this information to the Court,” Juror A testified: “I believe

that—I thought that there would have to be a conviction or that I would have had to went [sic] to

the police or to [sic] authorities to report this.” She also stated, earlier, that “[n]o one was

prosecuted. I didn’t talk to the police. I didn’t talk to anybody.”

Third, Juror A testified that she and her father “reconciled about this many, many, many

years ago and I’m fine with this fact,” and that “[w]hat had happened to me years ago happened

to me years ago and I don’t have a problem with it,” presumably demonstrating her lack of bias

regarding the subject matter of the trial.

The first and second statements, in particular, seem difficult to reconcile: it is unclear

how a person can both be under the misapprehension that she has disclosed information in

answer to a question, and also believe that that information was not germane to the question and

therefore that she was not required to disclose it. Indeed, the statement, “I thought there would

have to be a conviction . . . ,” in purporting to give an account of the thought process leading to

her nondisclosure, only makes sense as an explanation for not having disclosed the information.

To complicate matters even more, the trial court asked Juror A, “So it’s not that you didn’t

understand that that was an issue[;] you thought you had addressed that issue and raised it with

everybody . . . and let them know about it?”. Juror A replied: “Yes.” Thus, Juror A appeared to

back away from her assertion, made at two separate points at the evidentiary hearing just

6For reference, voir dire for the trial was held on January 9, 2006; the interview with the private

investigator was just under four months after voir dire, on May 2, 2006; and the evidentiary hearing was

approximately nine months after voir dire, on September 29, 2006.

No. 16-2676 English v. Berghuis Page 14

moments before, that she believed that in the absence of her having gone to the police, a

prosecution, or a conviction, she was under no duty to disclose her past sexual abuse.

As to the third statement—of having “reconciled” with the abuser, and no longer

“hav[ing] a problem with” the incident—the Supreme Court instructs us that where a juror’s

impartiality “is placed in issue,” and the juror swore that she could set aside her opinions and

decide the case impartially, the question remains nonetheless whether “the juror’s protestation of

impartiality [should] have been believed.’” Patton, 467 U.S. at 1036. This Court has

underscored that “[a] finding of ‘sincerity’ is not the same as a finding that the juror was

unbiased. A juror may not conceal material facts disqualifying h[er] simply because [s]he

sincerely believes [s]he can be fair in spite of them.” Zerka, 49 F.3d at 1185 (quoting United

States v. Scott, 854 F.2d 697, 699 (5th Cir. 1998)).

While recognizing that “[Juror A] admittedly did not reveal her status as a sexual assault

victim,” an omission that “constituted a failure to honestly answer a material question during

voir dire,” the magistrate judge found it “not clear from the record that [Juror A] could fairly or

reasonably have been expected to understand that her status as a victim was a matter which she

was required to reveal.” In support of this conclusion, the magistrate judge noted that “the trial

judge only once”—and when jury selection was “well underway”—“asked a potential juror if he

had been the victim of a crime.” The magistrate judge also observed that “neither the judge nor

the attorneys ever asked any potential juror whether she had been the victim of a sexual assault.”

However, the trial court explicitly informed the jury venire of the court’s “need to find out if you

have any . . . personal experiences that might influence you for or against” a party or witness,

and that some questions might “probe deeply into your attitudes, beliefs, and experiences.” The

court’s broad phrasing of these instructions undercuts the magistrate judge’s inference by casting

a net wider than merely having been a witness or crime victim. Moreover, the excusal of a juror

who had been molested by her stepfather—with no mention of prosecution or conviction—would

have strongly suggested to Juror A that her sexual assault was relevant to the voir dire

proceedings.

Two possible difficulties suggest themselves in connection with a court’s finding of

inferred or implied bias on the part of a juror. First, this Court has in the past noted that “the

No. 16-2676 English v. Berghuis Page 15

continued vitality” of the doctrine has been “called into question” by the Supreme Court.

Johnson v. Luoma, 425 F.3d 318, 326 (6th Cir. 2005) (“[T]he . . . doctrine may not even be

viable after Smith [v. Phillips, 455 U.S. 209 (1982)].”). Johnson cites United States v. Herndon,

No. 99-5642, 2000 WL 1290378 (6th Cir. Sept. 6, 2000). Herndon, though, notes that Smith is

not decisive “one way or the other” on whether juror bias may still be implied. Herndon,

2000 WL 1290378, at *4.

Second, the doctrine of presumed or implied bias may only be applied (if at all) “in

‘extreme’ or ‘exceptional’ circumstances.” Johnson, 425 F.3d at 326 (quoting United States v.

Frost, 125 F.3d 346, 379 (6th Cir. 1997)). In her concurrence in Smith, on which Johnson relied,

Justice O’Connor stated:

There are some extreme situations that would justify a finding of implied bias.

Some examples might include a revelation that the juror is an actual employee of

the prosecuting agency, that the juror is a close relative of one of the participants

in the trial or the criminal transaction, or that the juror was a witness or somehow

involved in the criminal transaction. Whether or not the state proceedings result

in a finding of “no bias,” the Sixth Amendment right to an impartial jury should

not allow a verdict to stand under such circumstances.

Smith, 455 U.S. at 222 (O’Connor, J., concurring). It may be suggested that none of the

examples from the Smith concurrence would apply here. However, not only is the list of

“extreme situations” provided by Justice O’Connor not exclusive, but it is prefaced with the

hedging language, “[s]ome examples might include . . . ,” suggesting that it is illustrative more

than limiting. See id. Moreover, this Court in Zerka observed that the requirement of “extreme

circumstances” to justify a new trial applied “[i]n the absence of intentional concealment.”

Zerka, 49 F.3d at 1186 n.7 (emphasis added).

Respondent contends that, “[w]hile English argues that it is likely that Juror A made a

conscious decision to conceal her prior history of abuse . . . , the trial court credited Juror A’s

testimony that she did not intentionally withheld [sic] her prior assault.” (Appellee’s Br. at 18-

19). The trial court did state, though, that “[J]uror A did not disclose . . . even though she was

asked about being a victim . . . [of] sexual assault.” The court further implied that Juror A did

not “act[] pursuant to [her] oath . . . [to] ‘answer truthfully, fully and honestly’” all questions.

No. 16-2676 English v. Berghuis Page 16

While it is true that the trial court stated that Juror A “thought she had disclosed it,”7 the court

did not find Juror A’s protestations of lack of bias credible. The court merely acknowledged

Juror A’s “statement that her prior undisclosed experience of being a victim of sexual assault did

not bias her . . . in this sexual assault case,” but nonetheless found that “it may subconsciously”

do so.

Given the broadly phrased questions and statements by the court and prosecutor as to the

scope of the voir dire inquiry, and the excusal for cause of a juror8 who, in open court, referred to

an experience broadly similar to Juror A’s (sexual abuse at the hands of a paternal figure), and

contrary to the district court’s finding, the record does contain evidence that, in omitting material

information on voir dire, Juror A did so deliberately. As this Court observed in prior

proceedings in this litigation, “[d]ue to the material concealment [by Juror A], a finding of bias

could have been readily inferred under McDonough.” English v. Berghuis, 529 F. App’x 734,

740-41 (6th Cir. 2013) (citing Zerka, 49 F.3d at 1186).

This Court has explained that, “[a]s a general rule, a defendant may excuse a juror for

cause if ‘the juror’s views would prevent or substantially impair the performance of h[er] duties

as a juror in accordance with h[er] instructions and h[er] oath.’” Williams v. Bagley, 380 F.3d

932, 953 (6th Cir. 2004) (quoting Wainwright v. Witt, 469 U.S. 412, 424 (1985)). The Michigan

Court Rules also set forth twelve grounds for for-cause challenges, including that a

prospective juror “is biased for or against a party or attorney,” M.C.R. 2.511(D)(2), “shows a

state of mind that will prevent the person from rendering a just verdict,” id., 2.511(D)(3), or “has

opinions . . . that would improperly influence the person’s verdict,” id., 2.511(D)(4).9

The circumstances outlined above suggest that the omitted information “would have provided a

7However, the trial court subsequently stated, in its order denying relief from judgment in view of the

contrary decisions by the state appellate and high courts, merely that “Juror A testified that she thought she had told

of the occurrence because she knew it was important.”

8The excusal for cause of that juror, who had been molested by a stepfather, occurred one hour and fifteen

minutes before the questioning of Juror A. See supra note 5 and accompanying text.

9M.C.R. 6.412 provides that the grounds for challenge to a juror in a criminal proceeding are those “set

forth in M.C.R. 2.511(D) or for any other reason recognized by law.” M.C.R. 6.412(D)(1). “If, after the

examination of any juror, the court finds that a ground for challenging a juror for cause is present, the court on its

own initiative should, or on motion of either party must, excuse the juror from the panel.” Id., 6.412(D)(2).

No. 16-2676 English v. Berghuis Page 17

valid basis for a challenge for cause,” meeting McDonough’s second prong. See 464 U.S. at

556.

Juror A’s failure to disclose; the evidence that Juror A would have known that her past

abuse was relevant at voir dire; and what appear to be striking inconsistencies in her account at

the evidentiary hearing with respect to the non-disclosure, all point to deliberate concealment,

permitting an inference of bias. See Zerka, 49 F.3d at 1186; see also English, 529 F. App’x at

740-41. Under de novo review, English has met the McDonough test, showing not only that

there was a material omission by Juror A—which the parties do not dispute—but also “that a

correct response would have provided a valid basis for” a for-cause challenge. See McDonough,

464 U.S. at 556.

IV. Conclusion

For the foregoing reasons, we REVERSE the judgment of the district court and

REMAND to the district court with instructions to remand the case to the state court for further

proceedings not inconsistent with this opinion.