Petition for Writ of Certiorari — John Uranga, III, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

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I6QU

No.

I N THE

SUPREME COURT OF THE UNITED STATES

October Term, 2018

OR IpGINAL

Su reme Court, U.S.

FILED

NOV 2 a 2018

OFFICE OF THE CLERK

JOHN URANGA, III,

Petitioner

LORIE DAVIS, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JOHN URANGA, III, pro se

Robertson Unit, TDCJ No 1500003

12071 FM 3522

Abilene, Texas 796018799

Petitioner

QUESTIONS PRESENTED

Where there exists intra and inter-circuit splits among the federal courts

of appeals on a question of exceptional importance concerning "structural er

rca," should the Supreme Court grant a writ of certiorari to resolve the issue

of whether the implied bias doctrine constitutes clearly established federal

law?

L Where the Supreme Court has repeatedly held in a multitude of cases, that

"violations of constitutional magnitude can never be de minimis," in the con

text of juror bias where the defendant on trial had committed a crime previous-

ly against the juror, should a determination of bias be predicated on whether

or not the crime involved a deminimis loss to the victim/juror?

LIST OF PARTIES

All the parties in this action appear in the caption of the case on the

cover page

TABLE OF CONTENTS

SECTION

PAGE

QUESTIONS PRESENTED..

LIST OF PARTIES

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TABLE OF AUTHORITIES CITED

OPINIONS

BELOW..

JURISDICTION.

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CONSTITUTIONAL PROVISIONS INVOLVED.

STATEMENT OF THE CASE

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REASONS FOR GRANTING THE PETITION..,,. ...................... 7

I DOES THE DOCrRINE OF IMPLIED JUROR BIAS CONSTITUTE 'CLEARLY

ESTABLISHED FEDERAL lAW" IN LIGHT OF THE FACT THAT THE UNITED

STATES SUPRENE COURT FAD LONG AGO HELD SO?

II. SHOULD DETERMINATIONS OF BIAS BE PREDICATED ON WHZI'HER OR NOT

A CRIME OQMMITFED BY A DEFENDANT AGAINST A ViCflMtJUROR WAS A

DEHINIt1IS

LOSS

INJ1JRY?

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A. THE FIFTH CIRCUIT NMOR ITT PANEL' S APPLIC(kTION OF A DEjffljtt

I11IS STANDARD CONFLICTS WITH RELEVANT DECISIONS OF THE SU-

FR1E COURT........

CONCLUSION......

PROOF OF SERVICE.

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TABLE OF AUTHORITIES CITED

CASES

PAGE

Andrew v. Collins, 21F.3d612(5th Cir. 1994) .................... . .......... 10

Brooks v. Dretke, 418 F.3d 430 (5th Cir. 2003) ............... ...... 7,10,11,12

Brooks v. Dretke, 444 F.3d 328 (5th Cir. 2006)..............

lifornia v. Ciraolo, 476 U.S. 207,

S.Ct.

5, 71 8,91 10,11

....

(1986) ................14

Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649 (2006) ........................ 8

Carey v. Pius, 435 U.S. 247, 98 S.Ct. 1042 (1978) .......................6,18

Carr v. Alabama, 16 So. 150 (Ala. 1894).................................... .. 14

Byer v. Calderon, 151 F.3d 970 (9th Cir. 1998) ............................16

Clover v. United States, 531 U.S. 1983 121 S.Ct. 696 (2001)..................18

Hunley V. Codinez, 975 F.2d 316 (7th Cir. 1992) .............................15

Lewis v. Woods, 648F.2d649(5thCir. 1988) ................................18

Lopez v. Smith,

U.S.

,135S.Ct.i(2Oi4) ..... ....................... 10

McDonough Power Equip. Inc. v. Greeiwood, 46$ U.S. 548, 104 S.Ct. 845 (1984)... 9

NcElhannonv. Georgia, 26S.E.501(Ga.1896)........................ ........

Oliver v.Qrteran,541F.3d329(5th Cir. 2003) ........................... ii

Parker v. Head, 244F.3d831(ilth Cir. 2001) ................................ 11

Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940 (1982)

Solis v. Cockrell, 342 F.3d 392 (5th Cir. 2003)......

...........

...

5,8-16

52 12,15,16

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984)................18

Teague v. Quarterman, 482 F.3d 769 (5th Cir. 2007)...... ..................

United States v. Alisup, 566 F.2d 68 (9th Cir. 1977)....... ................ 15-16

United States ex rel. DeVita V. MuCorkie, 248 F.2d 120 (3rd Cir. 1957).......16

United States v. Greer, 283 .3d 158 (2nd Cir. 2002) ......................13

United States v. Harry Barfield Co., 359 F.2d 120 (5th Cir. 1966)

........16

United States v. Mitchell, 690 F.3d 137 (3rd Cir. 2012) ........... 12,13, 14, 16

-iv-

CASES (continued)

PAGE

United States v. Hell, 526 F.2d 1223 (5th Cir.

1243, 16

United States v. Rter, 122 F.Supp. 673 (D. Nev. 1954)

......

.. ..

.".

United States v. Rear, 222 F.2d 720 (9th Ch. 1955)......

United States v. Rer, 350 U.S. 3771 76 S.Ct. 425 (1956)........... 7,8,9, 11

United States v. Scott, 854F.2d697(5th Cir. 1988) ............... ...... 12,16

United States v. Chith, 354 F.3d 390 (5th Cir.

United States v. Sylvester, 143 F.3d 924 (5th Cir. 1998) .....

10-41

.. ............

United States v. Torres, 128 F.3d 38 (2nd Cir. 1997)........................ 13,14

United States v. Woed, 299 U.S. 123, 57 S.Ct. 177 (1936) .................. 7,13

Urangay. Davis, 879F.3d646(5th Cir. 2018) ............................1,4,6

Uranga v. Davis, 893 F.3d 282 (5th Cir. 2018) .........................

...

Uranga v. Texas, 247 S.W.3d 375 (Tex. App.- Texarkana 2008).................

1,17

...

Urangay.Texes,330S.W.3d301(Tex.Crirn.App..2010)...................2,4,9

Urauga; Ex parte, 2011 1-.,-L 2473400 (Tex.. Crim. App. 2011) .....

Ward v. Stephens, 2014 WL887440(N.D. Tex. Mr. 6,.2014)...................

William v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000) ..............

Wright v. Texas, 12 Tex.. Ct. App. 163 (Tex. Ct. App. 1882)

CON STITUTJ

.......

..........13-14

STATUTESIt AND OTHER SOURCES

PAGE

UNITED STATES CONSTITUTION, Amendment VI..............

...

.....

.passim

.- ...

UNITED STATES GOIN: ST MTICIN, AmendrnenXIV............................ ..

28 UNITED STATES CODE, Section 1257(a)................. ....................

...

28UNT.TED STATES CODE, Section 2254(d)(i) .. ......................... .......5,10,11

ANTITERRORISM AND EFFECTIVE DEArd PENALTY ACT ..... .O

3 WIIIAi BLACKSNE, Ccirnentaries ...............

.....

. 13

...........................

IN THE SUPREME COURT OF THE UNITED STATES

October Ter, 2018

JOHN URANGA, III, Petitioner

LORIE DAVIS, Director, T.D.C.J., C.I.D., Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE HONORABLE JUSTICES OF THE SUPREME COURT:

COMES NOW John Urenga, III ("Uranga'), rose, to respectfully petition

this most Honorable court for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fifth Circuit, in which a twojudge panel

of the Court, on rehearing with one judge dissenting, withdrew its prior opinion

and reversed its original judgment, and affirmed the District Courts denial of

habeas relief.

OPINIONS BELOW

The United States Court of Appeals for the Fifth Circuit's opinion on re-

hearing is published at Uranga v. Davis 893 F.3d 282 (5th Cir. 2018), and is

attached hereto at APPDIX A.

The United States Court of Appeals for the Fifth Circuit's original opin-

ion is published at Uranga v. Davis, 879 F.3d 646 (5th Cir. 2018), and is here

to attached at kPPE1DE B.

The United States Court of Appeals for the Fifth Circuit DENIED a petition

for rehearing en banc on August 23, 2018, and a:copy of the Court's order deny

ing the petition is attached hereto at APPENDIX C.

The Report and Recouendation of United States Magistrate Judge Robert K.

Roach is attached hereto at APPENDIX F.

The opinion of the Court of Criminal Appeals of Texas, on Urangas state

application for a writ of habeas corpus is unpublished, but it is available at

Ex parte Urangp, 2011 WL2473400 (Tax. Cri.m. App. Jun. 22, 2011), and is attached

hereto at APPENDIX G.

The opinion of the Court of Criminal Appeals of Texas, on discretionary

review of Urangas direct appeal, is published at Uranga v. Texas, 330 S.W.3d

301 (Tex. Crim. App. 2010), and is attached hereto at APPENDIX H.

The opinion of the Court of Appeals for the Sixth Appellate District of

Texas, on Uranga's direct appeal, is published at Uranga v. Texas, 247 S.W.3d

375 (Tex. App Texarkana 2008), and is attached hereto at APPENDIX J.

JURISDICTION

The date onu which the United States Court of Appeals denied Urangas pe

tition for rehearing en banc was August 23, 2018. This instant petition for a

writ of certiorari was required to be filed on or before November 21, 2018, and

as it was submitted prior to that date, it has been timely filed on the Prison

Mailbox Rule.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

UNITED STATES CONSTITUTION, Amendment VI

The Sixth Anandrnent to the Constitution of the united States provides in

pertinent part that:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been comiitted,....

UNITED STATES CONSTITUTION, Amendment XIV

The Fourteenth Amendment to the Constitution of the United States provides in pertinent part that:

No State shall

deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

Uranga is a Texas prisoner tho is serving a life sentence for possession

of methaphetamine. See Uranga y. Davis, 879 F.3d 646, 647 (561 Cir. 2018).

At the sentencing phase of Uranga's trial, the prosecutor showed the jurors a

video of a prior crime coumitted by Uranga. While viewing that video, one of

the jurors in Uranga's trial realized that it had been Uranga that had been the

driver of a car that had driven over and damaged the juror's lawn-1 Id. at 651.

The video had been presented as evidence to support the habitual offender sentence that the State sought to impose.

The juror reported to the judge that he was personally involved in the

underlying the State's arguments at sentencing. Id. Rather than impan-

eling an impartial jury, or declaring a mistrial, the trial judge asked the jur-

or if he would be impartial. See Urarigay. Texas, 330 S.W.3d 301, 303 (Tex. Cricn.

App. 2010). Upon assurances that he would, the trial judge permitted the juror

to decide the case. id. As noted by Judge Haynes in his dissent, the "prosecution describe[d] Uranga's criminal history and specifically meation[ed] the car

chase imeadiately before stating: 'I'm asking that you, with his history, give

him a life sentence." Slip Op. at 12 (HAYNES, J., dissenting). The jury accepted the prosecutor's invitation and imposed a life sentence.

Uranga brought a habeas petition in Texas state court, arguing, inter, aiim,

that his sentencing violated the United States Constitution because he had been

denied an impartial jury, and that bias could be implied under the unusual circumstances present in his case. See Uranga, 330 S.W.3d at 303. After the Texas

Court of Criminal Appeals denied habeas relief, Uranga brought a petition under

28 U.S.C. § 2254 in the United States District Court for the Northern District

of Texas. See Uran, 879 F.3d at 647.

In an initial opinion, a Fifth Circuit panel determined that the doctrine

of implied jury bias applied to Uranga's case, and that he was entitled to re-

sentencing. As the panel explained, '"[a]lthough the resulting property damage"

caused by Uranga during the cross-'lawn car chase "may have been minimal, [that]

nonetheless was personal to the juror as it affected the premises of his home.

Moreover, the juror was unaware of how the damage had been caused and learned,

for the first time, upon viewing the videotape during the punishtent phase of

the trial, that Uranga was the perpetrator of the damage." Id. at 653. These

facts had "inherently create[d] in [the] juror a substantial emotional involvement, adversely affecting [his] impartiality' toward Uranga." Id. (quoting Soils

v. Coc1ell, 342 F.3d 392, 399 (5th Cir. 2003). Accordingly, Uranga's case had

presented the type of "extreme situation" foreseen in Smith v. Phillips, 455 U.S.

209, 222, 102 S.Ct. 940 (1982), and Bks v. Dretke, 444 F.3613289 332 (5th Cir.

2006), wherein it was determined that a juror's involvement would violate the

defendant's Sixth Amendment rights.

The State petitioned for an en banc reconsideration, asking for the Fifth

Circuit to overrule Brooks, and find that the implied juror bias doctrine is not

clearly established federal law as determined by the Supreme Court under 28 U.S.

C. § 2254(d)(1). The State did not dispute the fact that if Brooks is good law,

Uranga would be entitled to resentencing.

In lieu of en banc reconsideration, the panel treated the State's Petition

for Rehearing En Banc as a Petition for Panel Rehearing and granted that petiti-

on. See APPENDIX A at 1. The panel majority determined that even if Brooks had

been correctly decided, Uranga's case did not warrant a finding of impliedjthor

bias. Id. at 10. The panel majority pointed to the fact that Uranga's drive a-cross the juror's yard had "caus[ed] damage that could be repaired for less than

$500," and that the juror had "testified that he did not intend to pursue any

charges and that he could fix the damage himself." Id. at 10-'11. Accordingly,

the panel majority concluded that the damage had not been severe enough, or the

facts "extreme" enough fôr"imputing juror bias. In dissenting, Judge Haynes

-5-

concluded that the panels 'original opinion correctly determined that this sit-

uation was sufficiently extreme to warrant relief.. The juror in this very

case was a victim of this very defendant in a crime deemed relevant by the prosecution [for] sentencing this defendant to life. [This is p]retty extreme, it

seems to .me!' Id. at 13.

Uranga now files this petition for a writ of certiorari, asking for the

Supreme Court of the United States to review his case for resolving and disposing of the intra and inter-circuit splits of both, the federal and state courts

throughout the United States, on the issue regarding whether the implied juror

bias is "clearly established federal law;" and whether the facts underlying an

implied juror bias allegation or finding are subject to a de minimis standard,

an important question of federal law that falls within the core principles of

Carey v. Pihus 435 U.S. 247, 254, 98 S.Ct. 1042 (1978), that has not been, but

should be, settled by the Supreme Court.

In fact, Uranga argued in his initial Brief of Appellant to the Fifth Circuit that the juror in question was biased against him throughout the full

trial. The juror lived across the street from Uranga, that the juror held

animosity against Uranga, and had repeatedly called the police to allege.

that Uranga was selling drugs out of his home. BRIEF OF APPELLANT at5

879 F.3d 646 (5th Cir. No. 15-10290).

REASONS FOR GRANTING THE PETITION

DOES THE DOCTRINE OF IMPLIED JUROR BIAS CONSTITUTE "CLEARLY

ESTABLISHED FEDERAL LAW" IN LIGHT OF. THE FACT THAT THE UNITED STATES SUPREME COURT HAD LONG AGO HELD SO?

The Supreme Court of the United States had recognized long, long ago, that

a juror's bias "may be actual or implied; that is, it may be bias in fact or bi

s conclusively presumed as [a] matter of law." United States v. Wood, 299 U.S.

123, 134, 57 S.Ct 177 (1936). In Brooks, the Fifth Circuit determined that in

United States v. Reimer ("Rer ir'), 350 U.S. 377, 3812 76 S.Ct. 425 (1956),

the Supreme Court applied a principle of implied bias, under which neither any

post-verdict hearing nor .a juror's "sincere and credible assurances ... that he

èan be fair," are sufficient to protect the defendant's Sixth Amendment guarantee of an impartial jury, and the court may determine that a juror is biased as

a matter of law. Brooks v. Dretke ("Brooks I"), 418 F.3d 430, 434 (5th Cir. 2005); see Brooks V6 Dretke ("Brooks II"), 444 F.3d 328 (5th Cir. 2006). In Rem'

mar11, an outsider had attempted to bribe the jury foreman during, the trial;

the foreman reported the bribery attempt and it was investigated by the FBI.

The district court held a hearing and determined that the "incident" was "en-

tirely harmless:" the jury foreman testified that the. attempted bribe "in no way

affected his state of mind or his vote in arriving at the verdict," and the dis-

trict court accepted that assurance. United States v. Rer, 122 F.Supp. 673

675 (D. Nev. 1954), aff'd 222 F.2d 720 (9th Cir. 1955), vacated, 350 U.S. 3771;

76 S.Ct. 425 (1956). Though the foreman told another juror that "he had been

under great pressure" during the trial, the district court rejected the argument

that the "pressure" related to the attempted bribery

the comment "obviously re-

ferred to the strain of several months of trial .... Since the foreman had relieved his mind by promptly reporting the [bribery] incident to the trial judge,

it is obvious that he was not referring to it, as a 'pressure. "'

at n. 5.

The Supreme Court disagreed. Under the circumstances, it held that "nei-

ther [the foreman] nor anyone else could say that he was not affected in [their]

freedom of action as a juror." Reximer II, 350 U.S. at 381, 76 S.Ct. 425 (empha-

sis added). The Court did not use the term "implied bias," but it applied that

approach: despite the assurances given by the foreman during the hearing that

the attempted bribe did not affect his vote, the Court determined that in these

extreme circumstances, no person could remain unaffected. Id. As the Fifth

Circuit reiterated in rejecting the State's petition for an en bartc rehearing in

Brooks: "Reauer II illustrates that there are certain factual circumstances

in which no reasonable person could not be affected in his actions as a juror,

and in which the Constitution refuses to accept any assurances to the contrary."

The Fifth Circuit panel concluded that "Renimerll is an application of the im-

plied bias doctrine; it is tlearly established Federal law as determined by the

Supreme Court." Brooks II,i 444 F.3d at 331-32. The panel's decision in Brooks

is an example of "the case-by-case application [of] a wall-established constitutional principle" that was'demended by the Supreme Court in Williams v. Taylor,

529 U.S. 3622 120 S.Ct. 1495 (2000); and Carey v. usladin,549jU.S. 70, 127 S.Ct,

649 (2006).

Contrary to the State's contention in its Petition for Rehearing En Banc,

there is nothing in Phillips that negates the applicability of the implied bias

doctrine in the rare cases where it is implicated; Phillip simply was not such

a case. See STATE'S PETITION at 10 (citing Smith v, Phillips, 455 U.S. 209, 102

S.Ct. 940 (1982)). The juror in Phillips submitted an application to work for

the prosecutore's office during the course of the trial. The trial court held

a hearing and determined that the juror's conduct was an "indiscretion," but it

had no impact on the juror's partiality or ability to serve.

•

at 213. The

Supreme Court agreed, that a determination of a juror's bias "may properly be

made at a hearing like that [as was] held in this case." Ith.. at 217. But Justice O'Connor pointed out in her concurrence, that the majority opinion "does

-8-

not foreclose the use of implied bias in appropriate circtrns tances," even when

the Millins case was not one of those circumstances. id. at 221. The Fifth

circuit pointed out that Justice O 'Connor's statement "is no more than the holding of the Court in Renmer II." Brooks II, 444 F.3d at 332. As the Brooks II

Court further pointed out, the majority in Phillips neither addressed Renner II,

nor challenged Justice O'Connor's statement.

Then, just two years later, in McDonough Power Equip Inc. v. Greenwood,

464 U.S. 5489 104 S.Ct. 845 (1984), five justices endorsed Justice O'Connor's

position in Phillips and Remer II. Although the Court ultimately remanded the

Greenwood case to allow the trial court to hold a hearing in the first instance,

the five concurring justices all opined that the trial court may find "in excep-

tional circnstances, that the facts are suzh that bias is to be inferred."

at 556-57 (BIACKMU1L1, STEVENS, and O'CONNOR, J.J., concurring); &ee also id. at

557 (BRENNAN and MARSHALL, J.J., concurring).

The Second, Fifth, Seventh, Ninth and Tenth Circuits at times seem to have

accepted the Sixth A'nendiaent implied bias doctrine without qualification. Sep

APPENDIX H (Slip Op. at 3 d. 10) (PRICE and H0LC0M, J.J., dissenting) (listing

cases). Indeed, the decision by a majority of the Texas Court of Criminal Appeals' judges in the discretionary review of Uranga's direct appeal, drew a most

scathing dissent from Judges Price and Holcomb saying

Without fanfare, the Court today announces that there is no such thing as

the Sixth Amendment doctrine of implied bias. The whold thing is apparently a figment of Justice O'Connor's imagination. I am here to attest

that the implied bias doctrine does exist. I know it does; I have seen

Notwithstanding the durability of the Sixth Amendment doctrine of impli€.d

bias, the Court today rejects it almost effortlessly, citing only the majority opinion in Smith v. Phillips for support.

This court's reliance on that majority opinion today to disown the Sixth

Amendment doctrine of implied bias is, in my view, a grievous mistake.

The Sixth Amendment implied bias doctrine is alive and well and ought to

be applied on the facts of this case.

Uranga v. State, 330 S.W.3d 301, 308 (Tex. Crim. App. 2010); APPENDIX F at 9; AP-

.9.,

PENDIX H (PRICE and HOLCOMB, J.J., dissenting). Judges Price arid Holcocub's dis-

senting opinion so thoroughly sets forth Uranga's position that he presents today to the Supreme Court in this instant petition, that he hereby adopts it in

its entirety, as permitted by leave of the Court, and inserts it here as if it

had been pled.

But the First, Third, Fourth, Sixth and Eleventh Circuits have been unreliable and inconsistent in deciding whether the implied bias doctrine was clearly established federal law; and there has even been a multitude of intra and inter-circuit splits among all of the courts, state and federal, throughout the United States. In the Fifth Circuit for instance, in Andrews v. Collins, 21 F.3d

612 (5th Cit. 1994), the Court surveyed Supreme Court authority and declared:

"The Supreme Court has never explicitly adopted or rejected the doctrine of implied bias." 21 F.3d at 620. That observation would foreclose any claim for

relief under the Anti-terrorism and Effective Death Penalty Act ("AEDPA") predicated on implied bias,-- because it is only Supreme Court authority, and not Circuit authority-- that can form the basis of §2254(d)(i)'s "clearly established"

requIrement. See Lopez v. Smith,

U.S.

135 S.Ct. 1, 4 (2014) (per curi-

am) ("Circuit precedent cannot 'refine or sharpen a general principle of Supreme

Court jurisprudence into a specific legal rule that this Court has not announc-

ed." (citation omitted)). By explaining that the Supreme Court has not spoken

definitively, Andrews would foreclose a grant of habeas relief based on aclaim

of impled bias. Where the Fifth Circuit later determined that habeas relief is

available in a case predicated on a state court's failure to apply the doctrine

of implied bias, Brooks stands in conflict with Andrews.

The longstanding disagreement exemplified by Andrews and Brooks permeates

decisions throughout the country. Shortly after the passage of the AEDPA, and

the Supreme Court's Phillips decision, the Fifth Circuit declared that presumptions of juror bias are not appropriate. See United States v. Sylvester, 143

-10-

F .3d 923, 934 (5th Cir. 1998). The Court declared that "the Remner presumption

of prejudice cannot survive Phillips," and that a litigant therefore must show

actual bias. Id. United States v, Smith agreed with that assessment.

354

F.3d 390, 395 (5th Cir. 2003). There, the Fifth Circuit panel held that "it is

no longer the case that any intrusion on the jury, no matter how slight, creates

a rebuttable presumption of prejudice to the defendant." Id. It is this position that is held by a minority of the Circuits. See Parkerv. He_

a4, 244 F.3d

831, 839 n.6 (11th Cir. 2001) (collecting cases).

Brooks took the opposite view and held that not only can bias be inferred,

but "the doctrine of Implied bias is 'clearly established Federal law as determined by the Supreme Court." 444 F.3d at 330 (quoting 28 U.S.C. § 2254(d)(1)).

And, two years later, in Oliver v. Onarten, the Fifth Circuit stated that bias may be implied "if prejudice is likely [caused by some] external influence."

541 F.3d 329, 341 (5th Cir. 2008).

The Fifth Circuit has issued two distinct strands of conflicting decisions

just as has nearly every state and federal court throughout the land. On the

one hand, Sylvester and Smith reject the viability of implied bias claims, and

Andrews confirms that such claims cannot support habeas relief, because of the

absence of clear Supreme Court authority. On the other hand, Brooks (supported

by Oliver) takes the opposite view-- that being that "the doctrine of implied

bias is 'clearly established Federal law as determined by the Supreme Court."

444 F.3d at 329.

In light of all of the conflicting approaches existing throughout all of

the courts of the land, it is no wonder that, as an example, the Northern District of Texas has lamented the "disagreement

within the Fifth Circuit" re-

garding applications of the implied bias doctrine. Ward v. Stephens, 3:10-CV2101-N, 2014 WL 887440 (N. D. Tex. Mar. 6, 2014). The Ward court had observed that

not only do "the circuit courts debate the vitality of the Rammer presumption,"

-11-

but "[t]he jurisprudence within this circuit is also mixed." Id. at *6&*7 (cit'

ing cases). So when the Northern District of Texas was confronted with a habeas

petition asserting implied bias, the court denied relief, concluding that where

"the law is unsettled, the state court's decision [denying relief based on implied bias] cannot be an unreasonable application of federal law." Ed. at *7.

Given, the total confusion among the state and federal courts of the land, and of

the clean splits among the circuits, now is the time for the Supreme Court of

the United States to resolve the "disagreements" that confounds thaose courts.

II. SHOULD DETERMINATIONS OF BIAS BE PREDICATED ON WHETHER OR NOT

A CRIME COMMITTED BY A DEFENDANT AGAINST A VICTIM/JUROR WAS A

DE MINIMIS LOSS OR INJURY?

When the partiality of the victim-juror is assessed without regard to his

own assurances, the implied bias doctrine requires that the juror be excluded

from the jury. The panel majority on rehearing in the instant case assessed the

damages caused to the juror by Uranga as being "minimal," explaining that those

damages could be "repaired for less than $500" by the juror himself. APPENDIX A

at 10-11. But the amount of damages is not the critical point; it is the magni-

tude of the potential for the juror's emotional involvement in the outcome of a

case that matters. See Brks, 413 F.3d at 43233; accord Soils v. Coclell, 342

F.3d 392, 400 (5th cir. 2003).

Indeed, the "touchstone" of an implied bias inquiry is "whether the average person in the position of the juror would be prejudiced and feel substantial

emotional involvement in the case." United States v. Mitchell, 690 F.3d 137, 146

(3rd Cir. 2012) (emphasis added). A juror is likely to have that improper emotional involvement where the "specific facts" of the juror's situation deiuoho'trate

"a claae connection to the circumstances at hand." United States V. Scott, 854

F.2d 6972 699 (5th Cir. 1988) (quoting United States v, Nell, 526 F.2d 1223, 1229

(5th Cir. 1976)). In these "extreme situations," such as where "the juror was a

witness or somehow involved in the criminal transaction

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the Sixth Amendment

right to an impartial jury should not allow a verdict to stand." Smith, 455 U.S.

at 222.

The juror in Uranga s case had more than a "close connection" to the circumstances presented in the sentencing phase of Uranga s trial: he was "somehow

involved" because he was the

of one of Uranga's crimes. j

As other

circuits have recognized, jurors "who have been victims of the alleged crime"

cannot serve on that defendant's jury, "even if they state that they could uphold the law faithfully." United States v. Torres, 128 F.3d 38, 41 (2nd Cir. 1997) (finding victims impliedly biased in the context of voir dire); see also United States v. Greer, 285 F.3d 158, 172 (2nd Cir. 2002) ("automatically presumed

bias deals mainly with jurors who

were victims of the alleged crime itself").

That is so because "the average person" in that juror's situation "would harbor

prejudice, consciously or unconsciously," against the defendant. Mitchell, 690

F.3d at 142.

The presumption that a defendant's victims cannot sit in judgment on him,

has deep historical roots. "Experience teaches that the victim of any criminal

offense is rarely in sympathy with one charged with its perpetration; and it is

quite certain that the former would in no case be competent to serve as a juror

upon the trial of the latter. One whose property has been stolen will not be

allowed to participate as a juror in the trial of the alleged thief." tk1cEThan

non v. Georia, 26 S.E. 501, 504-05 (Ga. 1896). A defendant's victims have an

"interest in the case," see j, and this "cause[] of challenge ... cannot be

overruled, for jurors must be omni exceptions majors," United States v. Wood ,

299 U.S. at 138 (quoting 3 William Blackstone, canentaries 363). Accordingly,

the prejudice resulting from the iinpanelment of a defendant's victims (or even

a victim's relatives) has long mandated a new trMl. See , e.g.,

S.E. at 504-05 (defendant entitled to new trial where two jurors were relatives

of plaintiff's stockholders); Wright V. Texas, 12 Tex. Ct. App. 163, 167-68 (Tex.

Ct. App. 1882) (defendant entitled to new trial where two jurors were related to

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victims "in cases involving to same extent at least proof of the same facts necessary to the conviction of the defendant"); Carr v. Alabama, 16 So. 150, 15354 (Ala. 1894) (defendant entitled to new trial where juror sued the same defendant in another case on similar facts).

The juror in the case underlying this instant petition was not the victim

of Uranga's crime of conviction. bwever, he was the victim of other conduct

by Uranga that, as Judge Haynes pointed out, was "deemed relevant by the prosecution [for] sentencing [Uranga] to life!" APPENDIX A at 12-13 (HAYNES, C.J.,

dissenting). The average person in the juror's situation "would harbor prejudice against Uranga because Uranga's actions damaged the juror's own yard -- a

place that was "physically and psychologically" linked to the juror's home, a

place where "the intimate activity associated. with the sanctity of a man's home

and the privacies of life" occurs. California v. Ciraolo, 476 U.S. 207, 212-13

(196), What is more, the juror watched that invasion occur on video, at the

very same time that he was asked to evaluate an appropriate sentence for Uranga. The very ElMse of the implied bias doctrine is to recognize in such circumstances that the victim-juror may dismiss any suggestion of bias even though

bias exists. See .Mitchellt 690 F.3d at 142; Torres, 128 F.3d at 41. Uranga received a sentence to prison for the rest of his life, from a jury that included

someone who not only had a previous interaction with Uranga, but was presented

with the question of how much punishment Uranga ought to receive in light of the

previous harm he caused the juror! The placement on the jury of a juror with a

direct connection to the case is highly unusual and precisely the type of "extreme" situation that draws into question the juror's ability to be impartial.

Smith, 455 U.S. at 222. Indeed, if the Court does not presume the victim-juror

was biased against Uranga despite the fact that the juror was not just "somehow involved" in one o the crimes at issue in Uranga's sentencing, but was the

direct victim

it is difficult to imagine how any juror could ever satisfy the

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standard. See id.

Notably, courts have found implied bias in jurors who were significantly

less "emotionally involved" in the proceedings than the victim-juror in Uranga's

case. See Solis, 342 F.3d at 400. The quintessential example of implied bias,

is a juror who is "emotionally involved in the case ... because the juror was a

victim of a similar crime." Id. For instance, in Hunlev v. Godinez, 975 F.2d

316, 320 (7th Cir, 1992) (cited with approval in Solis, 342 F.3d at 399 n. 42),

the court implied bias to jurors who were burglarized during jury deliberations

on a burglary case. Both the similarity of the jurors' experiences to the defendant's alleged crime and the timing of the jurors experiences were key to

the court's decision although "the jurors were initially accepted as being

satisfactory,... the robberies during sequestration could easily affect their

previously unbiased attitude." Id. at 320. This was true even though the jurors' losses were de minimis: "The burglar stole the foreman's $200 gold watch

and several hundred dollars in traveler's checks.... The burglar also took $10

from another juror and $24 from her roommate." Id. at 317 t

2. Like the jur-

ors in Hunlev, Uranga's victim-juror discovered his personal connection to the

case in the middle of the proceedings, when the discovery was likely to have a

significant emotional impact.

320. Of course, in Hunley, unlike in

Uranga 's case, there was no question that someone other than the defendant perpetrated the crimes against the jurors. Yet, the Seventh Circuit held that the

verdict had to be reversed due to implied bias.

Courts have applied the implied bias doctrine to jurors with even more of

an attenuated connection to the facts of the trial. In United States v. Alisup,

566 F.2d 68, 71 (9th Cir. 1977), for instance, the court found that bank employees should not have been permitted to serve on the jury during a trial of defendants who had robbed a different branch of the same bank

never been victims of a bank robbery themselves

-15-

though the juros had

because "[t]he potential for

substantial emotional involvement, adversely affecting impartiality, is evident

when the prospective jurors work for the bank that has been robbed," and because

bank employees have reason to fear a violent bank robbery.

e.g., Dyer v.

Calderon, 151 F.3d 9703 982 (9th Cir. 1998) (juror had not been "involved in the

crime which was the subject of the case, nor did she have a personal relationship with any of the trial participants," but was iinpliedly biased because she

concealed fact that her brother was murdered in a manner similar to the way the

defendant was accused of murdering his victims); Scott, 854 F.2d at 699 (finding

implied bias in juror whose brother investigated the defendant: where juror did

not admit fact during voir dire); U.S. ex rd. De Vita v.

rkle, 248 F.2d 1,

8 (3rd Cir. 1957) (juror who had previously been assaulted and robbed would be

impliedly biased against defendants charged with similar crimes).

Furthermore, a juror's lesser connections to a defendant have given rise

to findings of implied bias. For instance, in United States v. Harry Barfield

359 F.2d 120, 123 (5th Cir. 1966), a civil plaintiff's elevator small talk

with a juror, "inquiring about the [juror's] drugstore, and then letting the

juror know to whom he was married," necessitated a new trial. Even though the

juror testified that he "was not influenced, and it would no doubt be difficult

to have a juror admit that he was influenced by such an approach ...and the juror here may not have been influenced," the risk that the personal connection

forged in that elevator could have biased that juror was untenable. Id. See

also Nell, 526 F.2d at 1.230 (remanding case for consideration of bias where the

J uror knew the defendant and was a member of a river union).

The implied bias standard set forth in Justice 0'(onnor's concurrence in

Smith, and adopted by a majority of the circuit courts of appeals, requires only

that "the average person in the position of the juror would be prejudiced and

feel substantial emotional involvement in the case." Mitchell, 690 F.3d at 146;

see also Soils, 342 F.3d at 399. If jurors who were victims of similar crimes

-16-

committed by someone other than the defendant, and even jurors involved in poten-

tially prejudicial elevator smafltalk, could be sufficiently biasedto the extent

that a new trial. is required, certainly the victim-juror in Uranga' s case --him-

self a victim of the very defendant whose sentence he was to decide -- also meets

the implied bias standard. The Fifth Circuit panel majority's findings to the

contrary are clearly wrong.

A. THE FIFTH CIRCUIT PANEL'S APPLICATION OF A DE NINIMIS STANDARD

CONFLICTS WITH RELEVANT DECISIONS OF THE SUPREME COURT.

The Fifth Circuit panel majority on rehearing acknowledged that Uranga had

comnitted an offense previously against a person who had been selected to serve

as a juror on Uranga's trial. See APPENDIX A at 10. The panel concluded that

where the offense against the victim-juror was "a misdemeanor," and the damages

to the victim-juror's property was "less than $500," they were de minimis and

did "not rise to the level of the extreme situations wherein courts have previously imputed juror bias." Id. at 10-11. Judge Haynes dissented regarding the

issue of implied juror bias, and in the dissenting opinion sufficiently reasoned

that there should not be an application of a de minimis. standard where a juror

had been the victim in a prior offense committed by a defendant in which the juror was selected to serve in deciding the defendant's fate. Id. at 12-13. Judge

Haynes concluded by stating

The juror in this very case was a victim of this very defendant in a crime

deemed relevant by the prosecution to sentencing this defendant to life.

Pretty extreme, it seems to me. I would deny the petition for panel rehearing and stand with the original opinion. Because the majority determines otherwise, I respectfully dissent.

Id. at 13.

Out of this air, the majority panel has crafted a de minimis standard for

making determinations on whether the facts of a case presented "extreme" situa-

tions sufficient to warrant a finding of implied juror bias. The de minimis

concept in Uranga's case is a creature of spurious conception. The panel offers

-17-

no jurisprudential or analytical buttress for its application of the de minimis

standard in implied juror bias cases, none whatsoever. It appears, instead, it

was simply spawned parthenogenetically and slipped into the Fifth Circuit's encompassing storehouse of obiter dicta. In the past, a panel of the Fifth Circuit had acknowledged that a "de minimi exception" would "conflict[] with Supreme Court precedent" and that "the de minimis concept is contrary to Supreme

Court precedent...." Teague v. Quarterman, 482 F.3d 769, 779, 780 (5th Cir. 2007).

In Lewis v. Woods, the Fifth Circuit held that "[a] violation of constitutional

rights is never de minimis, a phrase meaning so small or trifling that the law

takes no count of it." 848 F,2d 649, 651 (5th Cir. 1988); see Ca re v. Pips,

435 U.S. 247, 254, 98 S.Ct. 1042 (1978).

The legal theory underlying this issue is analogous with Glover v. United

States, 531 U.S. 198, 121 S.Ct. 696 (2001), in which the petitioner presented a

claim of ineffective assistance of counsel at trial, which allegedly resulted

in a sentence increase of anywhere between six and 21 months. See 531 U.S. at

202. The Supreme Court rejected the government's argument that a "minimal" amount of additional time on a sentence cannot constitute prejudice under Strickland v. Washington. Finding in favor of the petitioner, the Supreme Court said

that "[its own] jurisprudence suggests that any amount of actual jail time has

Sixth Amendment significance." Id. at 203. Thus, Glover was a sentencing case

in which an alleged legal error resulted in a harsher sentence being imposed,

thereby implicating the Sixth Amendment guarantee of effective assistance of

counsel in a criminal proceeding.

Uranga presents a claim that during his sentencing, his fate was determined by a juror against whom he had previously conitted an offense, a situation

in which the facts, and a long line of case law, indicated that bias had to be

imputed. The sentencing range the jurors were allowed to consider, was a term

of 25 to 99 years, or life; thus, Glover applies here, as Uranga WSS given LIFE.

-18-

C0 N CLU S I 0 N

The "implied juror bias" doctrine should he embraced by the Supreme Court

as being the "Law of the Land" If the state and federal courts are allowed to

follow the course that has been taken by the panel majority in this cases then

it will only be a matter of time before voir dire of the prospective jurors is

decided to baunnecessary, because it will make no difference if a defendant

had previously conitted an offense against one of the prospective jurors some

time in the paste

FOR ThE REASONS SET FORTH HEREIN, Uranga respectfully prays that this Hon-

orable Supreme Court of the United States will grant a writ of certiorari, and

will request that the parties suhnit briefing on the issues herein presented

Most Respectfully Submitted ,

UijiaIT

JOHN URANGA, III,etitioner

Robertson Unit, TDCJ No 1500003

12071 FM 3522

Abilene, Texas 796018799

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.