Canfield v. Lumpkin ( 2021 )

Case: 18-10431 Document: 00515872298 Page: 1 Date Filed: 05/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 21, 2021
No. 18-10431
Lyle W. Cayce
Clerk
Jerry Lee Canfield,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CV-1000
Before Owen, Chief Judge, and Higginbotham and Willett, Circuit
Judges.
Don R. Willett, Circuit Judge:
Jerry Lee Canfield was convicted of continuous sexual abuse of a
child—his daughter—and sentenced to 50 years’ imprisonment. In seeking
habeas relief, Canfield argues that his trial counsel was constitutionally
ineffective because he failed to investigate and challenge a juror who
demonstrated impartiality during voir dire. The district court affirmed the
Texas Court of Criminal Appeals’ denial of Canfield’s habeas claims, and we
affirm the district court.
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A
In July 2011, Canfield sent his then-seven-year-old daughter, M.C.,
and five-year-old son, C.C., to stay with his aunt and uncle—Ronda and
Michael Canfield—in Bedford, Texas. About six months later, Canfield
called to say he would be returning to pick up his children. At that time,
Ronda and her adult daughter decided they needed to address M.C.’s poor
hygiene before she returned to her father and was no longer in the care of a
woman. They instructed M.C. on self-care and advised her to tell an adult if
anyone touches her body in a way that makes her uncomfortable. M.C. then
told her aunt and cousin that her father had touched her “private parts” and
made her touch his. M.C. then told Michael the same thing. Michael and
Ronda called child protective services.
The police arrested Canfield, charging him with continuous sexual
abuse of a child under the age of fourteen. The State alleged that Canfield
engaged in at least two sex acts with M.C. over a period of at least 30 days
between May 1, 2010 and August 31, 2010. Canfield took his case to trial.
During voir dire, the prosecutor asked all 60 potential jurors—who
knew the case involved sexual abuse of a child—whether they already
believed Canfield was guilty. After juror M.T. raised her hand, she and the
prosecutor had the following exchange:
PROSECUTOR: . . . Tell me why.
[M.T.]: I don’t know. I have an autistic grandson who cannot
talk, and we’ll never know, but we think something might have
happened at the last autism program that he was in. My
grandson cannot talk. We will never know. I’m sorry. This is
just creeping me out really, really bad, being here. And just—
I’m freaking out.
2
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PROSECUTOR: Okay. Let me ask you this: If we don’t prove
him guilty, if we don’t prove it beyond a reasonable doubt
guilty to you, are you going to find him guilty anyway?
[M.T.]: I probably will just because of where I am right now. I
mean, I just—this is not a good—.
When it was his turn, defense counsel asked all 60 potential jurors
questions regarding their ability to hold the prosecution to its burden of
proof:
[I]f you have any reasonable doubt as to someone’s guilt, you
must find them not guilty. . . . You’re affecting someone’s
freedom. Someone could go to prison for life. . . . And before
we do that, before we want to say to someone, We’re going to
send you away for X amount of years, we want to be really sure,
really sure.
Does anyone have a problem? Does anyone think that’s too
high, too onerous a burden to place on someone?
There was no response, including from M.T.
Can everybody agree to hold the government to that burden,
that before we find someone guilty, if you say to yourself, I had
a reasonable doubt, I will find them not guilty? Can everybody
agree to that? Does anyone have any reservations about that?
Again, no response.
Counsel then discussed the importance of a fair trial and asked if
anyone felt they would be unable to find the defendant not guilty if he
declined to testify or put on any witnesses of his own. One potential juror
raised his hand; M.T. did not raise hers.
Next, defense counsel asked whether anyone believed that if a person
has been accused of committing a crime more than once, “that makes him
more likely to be guilty.” Numerous potential jurors raised their hands; M.T.
did not. Counsel pressed those who raised their hands for a definitive answer
3
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as to whether or not they could “give him a fair trial.” After some venire
members answered that they could not, defense counsel noted his
appreciation for their honesty and stated, “that’s why we have all of you here
and only 12 seats up there. So if you have something you want to say, let’s
talk about it. Anybody else?” M.T. did not raise her hand.
Finally, with respect to the guilt/innocence phase of trial, defense
counsel asked whether “there [is] anything about this particular offense, for
whatever reason, any act that for this particular type of offense that you’d
say, I just don’t know if I could be the right kind of person for this jury?” One
venire member noted that “[a]s a grandmother of two young children . . . it
makes [her] look at someone perhaps with a more negative eye that, if they’ve
been accused, what could have occurred that cause[d] someone to accuse
them?” In response, defense counsel asked the venire member whether she
believed she could “give Jerry a fair trial,” noting “if you can’t, it’s okay.”
The woman confirmed that, despite her feelings, she could give Canfield a
fair trial. Defense counsel followed up with, “Anybody else before we move
on? I just don’t know if this is the right kind of case for me.” No one else,
including M.T., raised a hand.
With respect to sentencing, defense counsel asked whether anyone
believed a 25-year sentence (the bottom end of the sentencing range) would
be too low, such that they would not be able to consider that sentence as a
punishment. While some potential jurors noted that 25 years is “a lot” and
they’d need to have “100 percent proof” of guilt to impose such a sentence,
no one raised a hand to indicate a belief that a 25-year sentence would be an
insufficient punishment.
Neither defense counsel nor the trial court addressed M.T.
personally, nor did defense counsel challenge M.T. for cause or use a
peremptory strike to remove her from the pool. M.T. ultimately served on
4
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the jury, which found Canfield guilty and imposed a sentence of 50 years’
imprisonment.
B
Canfield first raised his ineffective assistance of counsel claim in his
state habeas petition, arguing that his trial counsel’s assistance “fell below an
objective standard of reasonableness”1 when he failed to investigate or
challenge M.T. despite her obvious bias against Canfield.
In response, Canfield’s trial counsel submitted an affidavit. First,
counsel noted that “[o]f the ten challenges for cause, a decision had to be
made on which of these prospective jurors we would exercise challenges.”2
He then acknowledged M.T.’s statements, but claimed that she “at no point
committed herself to finding [Canfield] guilty regardless of the evidence.” In
his view, “[t]o say that you would probably find someone guilty regardless of
the evidence is not a committal response.” And because of M.T.’s equivocal
statements, defense counsel claims, he posed “follow up questions . . .
regarding that very issue.” Defense counsel noted that, during the follow-up
questioning, M.T. did not indicate that she could not give Canfield a fair trial.
The state court denied Canfield’s petition, making the following
findings:
1
Strickland, 466 U.S. at 688.
2
It appears counsel may have been mistaken in believing he only had “ten
challenges for cause.” See Tex. Code Crim. Proc. Ann. art. 35.15(b) & 35.16 (limiting
peremptory strikes to ten but not mentioning a limit on for-cause strikes). However, Canfield
did not challenge the propriety of counsel’s belief on appeal, nor did the State address it;
therefore, any argument related to the correctness of counsel’s understanding is forfeited.
Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all issues not
raised and argued in its initial brief on appeal.” (emphasis omitted)).
5
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10. Venire persons are rehabilitated by remaining silent when
they do not affirmatively state that they cannot follow the law.
See Leadon v. State, 332 S.W.3d 600, 616 (Tex. App.—Houston
188 [14th Dist.] 2010, no pet.); Cubit v. State, No. 03-99-00342-
CR, 189 2000 WL 373821, *1 (Tex. App.—Austin Apr. 13,
2000, no pet.) 190 (mem. op., not designated for publication).
11. Juror [M.T.] was rehabilitated by her silence.
12. Applicant has failed to prove that counsel’s representation
was deficient because counsel failed to ask Juror [M.T.] more
questions.
13. Applicant has failed to prove that Juror [M.T.] was biased.
14. Counsel’s decision to not challenge Juror [M.T.] for cause
was the result of reasonable trial strategy.
15. Counsel’s decision to not strike Juror [M.T.] was the result
of reasonable trial strategy. . . .
44. Applicant has failed to show that there is a reasonable prob-
ability that the result of the proceeding would have been differ-
ent had counsel challenged [M.T.] for cause.
45. Applicant has failed to show that there is a reasonable prob-
ability that the result of the proceeding would have been differ-
ent had counsel struck [M.T.].
The TCCA adopted these findings and likewise denied relief.
Strickland v. Washington3 imposes a high bar on those alleging
ineffective assistance of counsel. But 28 U.S.C. § 2254(d), which applies
when reviewing a state prisoner’s federal habeas appeal, raises the bar even
higher. To prevail, Canfield must demonstrate that his counsel’s
3
466 U.S. 668 (1984).
6
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performance was both deficient and prejudicial to his defense (Strickland),4
and he must show that the state habeas court’s decision otherwise was
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” or
“was based on an unreasonable determination of the facts in light of the
evidence” (§ 2254(d)).5
We review state-court adjudications for errors “so obviously wrong”
as to lie “beyond any possibility for fairminded disagreement,” 6 and we
presume findings of fact to be correct.7 Keeping in mind the enhanced
deference federal habeas courts must apply when evaluating Strickland
claims,8 we first address counsel’s performance and then turn to prejudice.
4
Id. at 687.
5
28 U.S.C. § 2254(d).
6
Shinn v. Kayer, 141 S. Ct. 517, 523 (2020) (quoting Harrington v. Richter, 562 U.S.
86, 103 (2011)). Shinn is the first of two recent per curiam opinions in which the Supreme
Court reversed federal appellate courts for failure to apply appropriate deference. In the
second, Mays v. Hines, the Court framed the inquiry succinctly: “All that matter[s] [i]s
whether the [state] court, notwithstanding its substantial ‘latitude to reasonably determine
that a defendant has not shown prejudice’ still managed to blunder so badly that every
fairminded jurist would disagree.” 141 S. Ct. 1145, 1149 (2021) (quoting Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009)) (original alterations omitted).
7
28 U.S.C. § 2254(e)(1). That presumption may only be overcome by “clear and
convincing evidence” otherwise.
8
In Shinn, the Court emphasized “the special importance of the AEDPA
framework in cases involving Strickland claims.” 141 S. Ct. 523. While habeas relief is never
available as to state-court decisions that are “‘merely wrong’ or ‘even clear error,’” the
general nature of the Strickland standard gives state courts “even more latitude to
reasonably determine that a defendant has not satisfied that standard.” Id. (first quoting
Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017), and then quoting Knowles, 556 U.S. at
123).
7
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A
First, deficient performance. Counsel’s performance is deficient if his
behavior “fell below an objective level of reasonableness.” 9 But there’s “a
strong presumption that counsel’s representation was within the wide range
of reasonable professional assistance.”10 Counsel is not expected to be a
“flawless strategist or tactician” and he “may not be faulted for a reasonable
miscalculation or lack of foresight or for failing to prepare for what appear to
be remote possibilities.”11
Canfield points us primarily to Virgil v. Dretke, where we determined
that counsel’s failure to challenge two jurors—who “expressly stat[ed] an
inability to serve as fair and impartial jurors”—was constitutionally deficient
and that the state court’s contrary conclusion was an objectively
unreasonable application of Supreme Court precedent. 12 There, similar to
this case, the jurors used language such as “I would say no” and “Yeah, I
believe so” in expressing, respectively, whether they would be able to serve
as an impartial juror and whether their personal experiences would prevent
them from being impartial.13 We held these potential jurors’ statements,
“that they could not be fair and impartial[,] obligated Virgil’s counsel to use
9
Strickland, 466 U.S. at 688.
10
Richter, 562 U.S. at 104 (internal quotation omitted).
11
Id. at 110.
12
446 F.3d 598 (5th Cir. 2008). The Supreme Court has explained that “an
appellate panel may, in accordance with its usual law-of-the-circuit procedures, look to
circuit precedent to ascertain whether it has already held that the particular point in issue
is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64
(2013).
13
Id. at 604.
8
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a peremptory or for-cause challenge on these jurors.”14 And “not doing so
was deficient performance under Strickland.”15
But even assuming that counsel’s performance here was deficient,
Virgil does not demonstrate that the TCCA was unreasonable in finding
otherwise. In Virgil, unlike in this case, counsel’s post-trial affidavit spoke
“only of peremptory challenges and fail[ed] to indicate why for-cause
challenges were not used against [the potential jurors],” and “fail[ed] to
explain why the answers given by [the potential jurors] did not indicate
prejudice or bias.”16 Here, counsel explained that he had to make strategic
decisions about how to use his for-cause challenges. And even if he was
incorrect about the number of for-cause challenges he was allotted, he also
explained that he believed M.T.’s silence at additional questioning served to
rehabilitate her testimony. Counsel’s purposeful, strategic reasoning alone
distinguishes Virgil from the case at bar.
The TCCA also found that counsel’s performance was not deficient
because M.T. was not in fact biased, a factual determination that this court
may only reject with clear and convincing evidence.17 Specifically, the TCCA
pointed to Texas law to highlight that “[v]enire persons are rehabilitated by
remaining silent when they do not affirmatively state that they cannot follow
the law.” The court then determined that M.T. “was rehabilitated by her
silence” and that Canfield “failed to prove that [M.T.] was biased.” The
TCCA reasonably pointed to good law in Texas and made a sensible factual
assessment regarding M.T.’s silence during defense counsel’s questioning.
14
Id. at 610.
15
Id.
16
Id. (internal quotations omitted).
17
See Patton v. Yount, 467 U.S. 1025, 1036 (1984).
9
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This “does not come close to showing the sort of ‘extreme malfunction in
the state criminal justice system’ that would permit federal court
intervention.”18 Therefore, the TCCA was not unreasonable in concluding
that M.T. was not biased and counsel’s performance was not deficient.
B
Second, prejudice. Though we could end our inquiry with the deficient-
performance analysis, the most persuasive reason to deny habeas relief comes
with the prejudice prong. Prejudice is demonstrated where a petitioner shows
“a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” 19 “A reasonable
probability means a “ ‘substantial,’ not just ‘conceivable,’ likelihood of a
different result.”20 In this inquiry, the Supreme Court has recently reminded
us that, in carrying out our deferential review, we may not “‘substitute[]
[our] own judgment for that of the state court.”21
Here, there can be no doubt that, even if M.T. were biased, the state
court did not unreasonably conclude that her presence on the jury did not
change the outcome of the trial.22 The evidence of Canfield’s guilt is
overwhelming. The jury heard (1) testimony from the eight-year-old victim;
(2) testimony from five outcry witnesses; and (3) testimony from an expert
who personally interviewed the victim and noted that a coached child would
18
Shinn, 141 S. Ct. at 526 (quoting Richter, 562 U.S. at 102) (alterations omitted).
19
Strickland, 466 U.S. at 687.
20
Shinn, 141 S. Ct. at 523 (quoting Cullen v. Pinholster, 563 U.S. 170, 189 (2011)).
21
Id. at 524 (quoting Woodford v. Visciotti, 537 U.S. 19, 25 (2002)).
22
See Virgil, 446 F.3d at 612 (“Prejudice is presumed in a narrow category of cases,
none of which is present here.”).
10
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not be able to provide the detailed information that the victim provided.23
The defense did not impeach the State’s witnesses or otherwise cast doubt
on the veracity of their testimony, and it did not offer any witnesses of its
own. Based on this overwhelmingly one-sided evidence, there is no
“reasonable probability” that, but for M.T.’s presence, the jury—who
deliberated Canfield’s guilt for less than an hour—would have acquitted.24
But, if any doubt remains about our assessment of prejudice to
Canfield, the TCCA’s assessment controls. The TCCA correctly identified
the proper prejudice standard under Strickland: a reasonable probability that
the result of the proceeding would have been different absent counsel’s
errors.25 And, based on its conclusion that M.T. was not biased, and lacking
23
The expert was a forensic investigator with Child Protective Services who
specialized in sexual-abuse investigations. During her direct examination, the State also
introduced, and published to the jury, pictures that the victim drew during her interview
with the expert, which depicted specific details relating to the abuse.
24
See, e.g., Sanchez v. Davis, 936 F.3d 300, 306–07 (5th Cir. 2019) (finding no
reasonable possibility of different outcome where the state offered four witnesses to the
crime, the defense offered no mitigating evidence, and the jury returned its guilty verdict
“swift[ly]”).
Canfield does not argue that his sentence, separate from the jury’s finding of guilt,
would have been different but for counsel’s error. Therefore, he has forfeited any argument
regarding prejudice in sentencing. Cinel, 15 F.3d at 1345. But, even if the argument were
not forfeited, Canfield has not provided any evidence to suggest M.T. maintained any
biases with respect to sentencing, and the jury deliberated the appropriate sentence for a
mere 30 minutes. Taken together, there can be no reasonable suggestion that M.T.’s
presence on the jury changed the outcome of Canfield’s sentence.
25
To the extent Canfield suggests that the presence of a biased juror amounts to a
structural error, compare Virgil, 446 F.3d at 607, with Austin v. Davis, 876 F.3d 757, 803 (5th
Cir. 2017) (Owen, J., concurring) (“The Supreme Court has never held that juror bias is
structural error requiring automatic reversal.”), such that we must presume prejudice
without going through a reasonable-probability analysis, Weaver v. Massachusetts closes the
door on this argument. 137 S. Ct. 1899, 1910–12 (2017). Weaver, which was decided after
Virgil, expressly left an open question regarding whether, when a structural error is first
identified through an ineffective-assistance-of-counsel claim instead of on direct appeal,
11
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any materially indistinguishable Supreme Court precedent necessitating a
different conclusion, the court reasonably concluded that the result of the
trial would not have been different if counsel had challenged or struck M.T.
from the jury. As such, the TCCA’s conclusion was not contrary to or an
unreasonable application of clearly established Federal law, and, thus, habeas
relief must be denied.
Strickland sets a high bar, which AEDPA raises higher still. Even
assuming Canfield clears the former, he falters at the latter. The judgment of
the district court is AFFIRMED.
petitioner is required to show a reasonable probability of a different outcome or if he may
rely on a showing of fundamental unfairness. 137 S. Ct. at 1911. If there is an open question,
the law is not clearly established. So even assuming, for the sake of argument, that a biased
juror does pose a structural error, the TCCA’s reliance on the reasonable-probability
standard, one of the two possible standards recognized in Weaver, could not have been
contrary to or an unreasonable application of Supreme Court precedent.
12
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Patrick E. Higginbotham, Circuit Judge, dissenting:
Today we return to critical issues attending the difficulties of jury
selection. A cornerstone of the fair trial, it is the last chance for the court to
expose prejudice and bias before the jurors repair to a virtual vault where
deliberations are sealed, not to be opened except in the most egregious cases.1
This “no-impeachment rule” grew out of our common-law heritage and is
now codified in the Federal Rules of Evidence and entrenched in the laws of
every state.2 Shielding the jury’s deliberations from scrutiny protects the
finality of the process, enables jurors to deliberate honestly, and ensures, as
best can be done, their willingness to return a true, if unpopular, verdict.3 But
this sealing canon comes at a cost: we cannot probe the effects of a juror’s
bias in the jury room, and in those rare cases when we can and do, remedies
for the unfairness are elusive.
As jury selection is the lynchpin of an impartial jury, it ought never be
a hasty minuet or check-the-boxes exercise; it must always be as exacting and
careful a process as the case demands. As in the case now before us, potential
jurors often come with personal experiences and grasping emotions bottled
in memory and easily set off. These realities bind the trial judge in the interest
of true verdicts and bind the attorneys in meeting their adversarial duty to
identify and exclude biased jurors. When a juror evidences a potential bias,
the selection process must root it out with specific and direct questioning,
with the judge resolving uncertainty in favor of exclusion. These demands on
1
See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868, 871 (2017) (characterizing voir
dire as a “safeguard[] to protect the right to an impartial jury” and highlighting the
“advantages of careful voir dire” in preventing bias in jury deliberations).
2
See Fed. R. Evid. 606(b); Pena-Rodriguez, 137 S. Ct. at 865 (“Some version of
the no-impeachment rule is followed in every State and the District of Columbia.”).
3
Pena-Rodriguez, 137 S. Ct. at 867.
13
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the court and counsel advance bedrock principles of procedural fairness
crafted to deliver the right to trial by jury. Yet they only ask that the court and
counsel do their job.
Here, the trial judge and counsel were acutely aware of the necessary
care that must attend jury selection and the challenges of this case. Our
question is whether they succeeded in protecting the jury room. Unlike the
majority, I conclude that they did not. During voir dire, a prospective juror
volunteered that she felt the defendant was guilty and would probably vote to
convict him even if the State failed to prove his guilt beyond a reasonable
doubt. Neither counsel nor the judge followed up with her. So, she served on
the jury that first convicted Jerry Lee Canfield and, then, free to choose from
a menu of sentences from 25 years to life imprisonment, sentenced him to 50
years in prison without the possibility of parole. I would hold that defense
counsel’s failure to challenge this biased juror deprived Canfield of his Sixth
Amendment right to effective assistance of counsel, rendering his sentence
unreliable, and that the state court’s decision to the contrary was an
unreasonable application of clearly established law.
A
As an initial matter, the facts of Canfield’s sentencing require further
inspection. At sentencing, the State and Petitioner each called a witness.
Testifying for the State, Canfield’s aunt, Ronda, described how Canfield’s
abuse impacted his daughter, M.C., explaining that as a result of the sexual
assault, M.C. developed emotional problems, boundary problems with adult
men, and troubling sexual behavior. On cross-examination, she testified that
Petitioner had a “rough upbringing.” She also testified that Petitioner and
his children, M.C. and C.C., were homeless at times and that she heard they
14
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were living in his car at one point. And she said that M.C. and C.C.’s mother
had no relationship with the children.
Petitioner called an expert witness, Dr. William Flynn, a clinical and
forensic psychologist. Flynn testified that he had interviewed Petitioner and
assessed his recidivism risk using Static 99, a form with ten objective risk
factors indicative of a person’s risk of committing another sexual crime.
Flynn explained that Static 99 is well-established, highly regarded by the
scientific community, and used by the State to determine whether violent
sexual offenders set for release from prison need to be civilly committed due
to their high risk of recidivating.4 He found that Petitioner had eight
protective factors and two risk factors: his age (30 years) and his prior
convictions for petty offenses. Canfield had no felony convictions or charges
of sex offenses beyond those charged in this prosecution.5 With only two risk
factors, Petitioner had a low risk of recidivism—a 1% to 7% probability of
reoffending after 10 years of opportunity and almost no chance of reoffending
after age 60. The State contested the accuracy and utility of the survey
instrument. Free to choose a sentence from 25 years to life imprisonment,
the jury sentenced Jerry Lee Canfield to 50 years in prison—effectively a life
sentence, as the 30-year-old is not eligible for parole.
B
In his state habeas corpus application, Canfield, proceeding pro se,
asserted for the first time that his counsel had been ineffective for failing to
challenge juror M.T, despite her assertion of actual bias and lack of
4
See Tex. Code Crim. Proc. Ann. art. 62.007(c).
5
His record includes several minor offenses, such as possession of marijuana of
consumable amounts, bad checks and misuse of prescriptions, all suggesting he was a drug
user but had never been jailed.
15
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rehabilitation. During voir dire, M.T. revealed that she believed her grandson
might have been sexually abused, and because of that experience, she would
probably find Canfield guilty of abusing his daughter, even if the State failed
to prove his guilt beyond a reasonable doubt. The State opposed Canfield’s
petition and submitted a twenty-page memorandum setting out proposed
findings of fact and conclusions of law. The state habeas trial court adopted
the State’s memorandum verbatim, thereby recommending the denial of
relief. Adopting the habeas trial court’s findings, the TCCA also denied
relief.
To prevail on his ineffective-assistance claim, Canfield must meet
Strickland v. Washington’s two-part test.6 He must show that his counsel’s
performance was deficient and prejudicial to his defense. Since this matter
comes to us as a petition for habeas relief under § 2254, Canfield must also
show that the state court’s decision was contrary to or an unreasonable
application of Strickland.7 A merely “incorrect” state court decision, one we
might have decided differently, will not suffice.8
A
Counsel’s performance is deficient under Strickland if the petitioner
shows that it “fell below an objective standard of reasonableness.” 9 We
“apply a strong presumption that counsel’s representation was within the
6
466 U.S. 668, 687 (1984).
7
Virgil v. Dretke, 446 F.3d 598, 611 (5th Cir. 2006).
8
Id. at 604.
9
Strickland, 466 U.S. at 688.
16
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wide range of reasonable professional assistance.” 10 Counsel’s “conscious
and informed decision on trial tactics and strategy cannot be the basis for
constitutionally ineffective assistance of counsel unless it is so ill chosen that
it permeates the entire trial with obvious unfairness.” 11
This case closely resembles Virgil v. Dretke. There, we held that
counsel’s failure to challenge two jurors rendered his performance
constitutionally deficient and that the state court’s contrary conclusion was
an objectively unreasonable application of clearly established law. 12 The first
juror, Sumlin, stated that because some of his relatives are police officers, he
could “[p]erhaps not” be an impartial juror.13 Asked to clarify whether his
answer to that question was yes or no, Sumlin responded, “I would say no.”14
The second juror, Sims, stated that his mother had been mugged, and when
asked whether that would prevent him from being impartial, he replied,
“Yeah, I believe so.”15 This Court found that Sumlin’s and Sims’s
unchallenged voir dire comments “obligated Virgil’s counsel to use a
10
Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal quotation marks and
citation omitted)
11
Ward v. Dretke, 420 F.3d 479, 491 (5th Cir. 2005) (internal quotation marks and
citation omitted).
12
Virgil, 446 F.3d at 601. To determine whether a state court has unreasonably
applied “clearly established Federal law, as determined by the Supreme Court of the
United States” under § 2254(d)(1), the Supreme Court has explained, “an appellate panel
may, in accordance with its usual law-of-the-circuit procedures, look to circuit precedent
to ascertain whether it has already held that the particular point in issue is clearly
established by Supreme Court precedent[.]” Marshall v. Rodgers, 569 U.S. 58, 64 (2013)
(citing Tolliver v. Sheets, 594 F.3d 900, 916, n.6 (6th Cir. 2010) (“We are bound by prior
Sixth Circuit determinations that a rule has been clearly established[.]”)).
13
Virgil, 446 F.3d at 603.
14
Id.15
Id. at 604.
17
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peremptory or for-cause challenge on these jurors” and that “[n]ot doing so
was deficient performance under Strickland.”16
M.T., like Sumlin and Sims, demonstrated that she was biased. 17
When the State asked whether any of the jurors would “think [Canfield]’s
guilty before we even start testimony,” she answered, “I do,” and, “I feel
that way.” And when asked whether she would find Canfield guilty even if
the State’s evidence was insufficient, M.T.’s response was straightforward:
“I probably will just because of where I am right now.” She indicated not just
the “mere existence” of a preconception of Canfield’s guilt but a likelihood
that she would vote to convict Canfield even if the State failed to prove his
guilt beyond a reasonable doubt.18 Her statements amounted to an admission
that her “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.” 19
At no point did she clearly express that she could “lay aside h[er] impression
or opinion and render a verdict based on the evidence presented in court.”20
As a result, Canfield’s counsel was obligated to use a peremptory or for-cause
challenge on M.T. Because he failed to do so, his performance was deficient.
The State argues that even if there was initial bias, it was not
unreasonable for the state court to find that M.T. was rehabilitated by her
silence in response to defense counsel’s questions to the venire about holding
16
Id. at 610.
17
Because juror bias is a factual finding, Patton v. Yount, 467 U.S. 1025, 1036 (1984),
the state court’s determination is entitled to a “presumption of correctness” unless it can
be rebutted by “clear and convincing evidence,” 28 U.S.C. § 2254(e)(1).
18
See Irvin v. Dowd, 366 U.S. 717, 723 (1961).
19
Soria v. Johnson, 207 F.3d 232, 242 (5th Cir. 2000) (internal quotation marks and
citation omitted) (defining “bias”).
20
Irvin, 366 U.S. at 723.
18
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the State to its burden. The State primarily argues that there is no Supreme
Court precedent clearly establishing that a juror cannot be rehabilitated by
silence. But juror bias presents a “question . . . of historical fact,” not a
question of law or a mixed question of fact and law. 21 We therefore must
determine whether the state court’s finding was “based on an unreasonable
determination of the facts.”22
Once a venire member has indicated bias, courts have looked for
persuasive evidence of disavowal before finding rehabilitation, such as a
simple follow up by judge or counsel: “We need a yes or no, please?” In
Virgil, we favorably discussed our decision in United States v. Nell, which
ordered a new trial while noting that “[d]oubts about the existence of actual
bias should be resolved against permitting the juror to serve, unless the
prospective panelist’s protestation of a purge of preconception is positive,
not pallid.”23 Virgil also cited with approval the Sixth Circuit’s decision in
Hughes v. United States24 and quoted its reasoning that an “express admission
21
Patton, 467 U.S. at 1036; see also Thompson v. Keohane, 516 U.S. 99, 111 (1995)
(“In several cases, the Court has classified as ‘factual issues’ within § 2254(d)’s compass
questions extending beyond the determination of ‘what happened.’ This category notably
includes . . . juror impartiality.”); Wainwright v. Witt, 469 U.S. 412, 429 (1985) (holding
that juror bias determination is a question of fact, even though “[t]he trial judge is of course
applying some kind of legal standard to what he sees and hears”). Of course, the trial court
never addressed the issue directly. Judge Posner put it aptly: “Our review of the trial
judge’s ruling with respect to a challenge for cause is deferential but not completely supine,
and it is pertinent to note that no issue of credibility is presented. . . . The issue is
interpretive: did what [the juror] say manifest a degree of bias such that the judge abused
his discretion in failing to strike her for cause?” Thompson v. Altheimer & Gray, 248 F.3d
621, 624–25 (7th Cir. 2001) (internal citations omitted).
22
28 U.S.C. § 2254(d)(2).
23
See United States v. Nell, 526 F.2d 1223, 1230 (5th Cir. 1976); see also Virgil, 446
F.3d at 606–07.
24
See Virgil, 446 F.3d at 606–07 & nn.30, 33 (citing Hughes v. United States, 258
F.3d 453 (6th Cir. 2001)).
19
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of bias, with no subsequent assurance of impartiality and no rehabilitation by
counsel or the court by way of clarification through follow-up questions
directed to the potential juror,” supports a finding of actual bias.25 Hughes
further found that a juror’s “silence in the face of generalized questioning of
venirepersons by counsel and the court did not constitute an assurance of
impartiality.”26 And in several other cases, after a juror indicated her actual
bias, the entire venire’s silent response to a group question was not enough
to establish the juror’s impartiality.27
While in some cases the venire’s silence can support a finding of
rehabilitation,28 this is not such a case. Here, M.T. demonstrated actual bias
when she admitted that she felt Canfield was guilty without hearing any
25
Id. at 607 n.33 (quoting Hughes, 258 F.3d at 460).
26
Hughes, 258 F.3d at 461.
27
See, e.g., United States v. Kechedzian, 902 F.3d 1023, 1031 (9th Cir. 2018) (finding
on direct appeal that after a juror indicated bias, the silence of the panel in response to a
question to the group “d[id] not indicate that [the juror] could be impartial”); Altheimer &
Gray, 248 F.3d at 626 (finding juror bias on direct appeal where, after a juror indicated
actual bias, the district court judge did not follow up with the juror individually, instead
“ask[ing] the jury en masse, whether [they] would follow his instructions on the law and
suspend judgment until [they] had heard all the evidence”); Johnson v. Armontrout, 961
F.2d 748, 754 (8th Cir. 1992) (granting § 2254 relief and holding that the court “cannot say
that an ambiguous silence by a large group of venire persons to a general question about
bias is sufficient to support a finding of fact in the circumstances of this case”); see also
United States v. Corey, 625 F.2d 704, 707 (5th Cir. 1980) (noting that “[b]road, vague
questions of the venire” are not enough to prove the impartiality of a juror indicating actual
prejudice); United States v. Davis, 583 F.2d 190, 196, 198 (5th Cir. 1978) (holding,
“[w]ithout establishing an inflexible rule” for voir dire, that because of significant pre-trial
publicity, the trial court’s inquiry was insufficient when the court merely “asked that any
panel member raise his hand if he felt the publicity impaired his ability to render an
impartial decision” and no juror responded).
28
See, e.g., Torres v. Thaler, 395 F. App’x 101, 108 (5th Cir. 2010) (per curiam)
(unpublished) (finding that the juror was not biased for several reasons, including the
juror’s ambiguous statements, his silent response to a group question, and defense
counsel’s strategic reasons for keeping him as a juror).
20
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testimony and that she would probably vote to convict him regardless of the
strength of the evidence. Later, counsel asked the 60-person venire as a
group, “Can everybody agree to hold the government to that burden, that
before we find someone guilty, if you say to yourself, I had a reasonable doubt,
I will find them not guilty? Can everybody agree to that? Does anyone have
any reservations about that?” Neither M.T. nor any of the other 59 members
of the venire responded. Silence, the State urges, demonstrated her
impartiality. Yet, between her initial statement and absence of any response
to the question put to the entire venire, there were no intervening events
suggesting that M.T. had a change of heart. Indeed, after her colloquy with
the prosecutor, M.T. did not speak for the remainder of the voir dire. She
made no “protestation of a purge of preconception,” let alone a “positive”
or even a “pallid” one.29 Without something more, the silence of the entire
venire is not enough to overcome her open statements when directly
addressed. And there is no other footing for a finding of rehabilitation.
Defense counsel’s state-habeas affidavit makes plain that the failure
to strike was not a conscious and informed decision on trial strategy. 30
Counsel’s affidavit explained, incorrectly, that “[o]f the ten challenges for
cause, a decision had to be made on which of these prospective jurors we
would exercise challenges.” But Texas law limited counsel to ten peremptory
challenges;31 it placed no limits on the number of for-cause challenges that he
could have exercised.32 Counsel’s failure to challenge M.T. for cause was the
29
Nell, 526 F.2d at 1230.
30
See Virgil, 446 F.3d at 610 (concluding defense counsel’s affidavit did not justify
his performance, as it failed to explain why he did not challenge the jurors for cause or why
he allowed them to serve on the jury).
31
Tex. Code Crim. Proc. Ann. art. 35.15(b).
32
Id. art. 35.16.
21
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product of a misunderstanding of state law, not an “informed decision.”33 As
evidence of M.T.’s rehabilitation, counsel’s affidavit also states that M.T.
remained silent when he asked the jurors if they would be more likely to
assume a defendant’s guilt based on multiple prior accusations. But
Canfield’s claim is that M.T. was biased by what may have happened to her
grandson, not by her views on previous accusations. Counsel’s affidavit
offers no further strategic reasons for keeping M.T. on the jury.34
“When a venireperson expressly admits bias on voir dire, without a
court response or follow-up, for counsel not to respond [to the statement of
partiality] in turn is simply a failure ‘to exercise the customary skill and
diligence that a reasonably competent attorney would provide.’”35 M.T.’s
responses “obligated [Canfield’s] counsel to use a peremptory or for-cause
challenge on [her],” and “[n]ot doing so was deficient performance under
Strickland.”36 The state court’s conclusion “was contrary to, or involved an
unreasonable application of, clearly established Federal law.” 37
33
Ward, 420 F.3d at 491 (emphasis added).
34
See Morales v. Thaler, 714 F.3d 295, 306 (5th Cir. 2013) (“[T]rial counsel, making
a reasonable tactical decision, could elect to seat an actually biased juror without rendering
[ineffective assistance].”) (emphasis added); cf. Torres, 395 F. App’x at 107 (holding that
counsel was not deficient for not challenging juror where counsel’s affidavit “described a
trial strategy that involved [the juror’s] statements and personality”).
35
Hughes, 258 F.3d at 462 (quoting Armontrout, 961 F.2d at 754); see Miller v. Webb,
385 F.3d 666, 675 (6th Cir. 2004) (quoting Hughes).
36
Virgil, 446 F.3d at 610.
37
See 28 U.S.C. § 2254(d)(1).
22
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B
Canfield must also show that counsel’s “deficient performance
prejudiced [his] defense.”38 To show prejudice, a petitioner must
demonstrate “a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” 39 A
“reasonable probability” is one “sufficient to undermine confidence in the
outcome.”40 “We focus on ferreting out ‘unreliable’ results caused by ‘a
breakdown in the adversarial process that our system counts on to produce
just results.’”41 Our inquiry rests “on the assumption that the decisionmaker
is reasonably, conscientiously, and impartially applying the standards that
govern the decision.”42
In Virgil, we found that the same failure Canfield identifies resulted in
Strickland prejudice and an “unreliable” trial.43 In particular, counsel’s
failure to challenge two jurors who “unequivocally expressed that they could
not sit as fair and impartial jurors” deprived Virgil of “a jury of persons
willing and able to consider fairly the evidence presented.” 44 We observed
that “[n]o question was put to either Sumlin or Sims as to whether they
would be able to set aside their preconceived notions and adjudicate Virgil’s
matter with an open mind, honestly and competently considering all the
38
Strickland, 466 U.S. at 687.
39
Id. at 694.
40
Id.41
Virgil, 446 F.3d at 612 (quoting Strickland, 466 U.S. at 696).
42
Id. (emphasis added in Virgil) (quoting Strickland, 466 U.S. at 695).
43
Id. at 613 (quoting Strickland, 466 U.S. at 696).
44
Id.23
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relevant evidence.”45 Thus, we could not “know the effect [that] Sumlin’s
and Sims’s bias had on the ability of the remaining ten jurors to consider and
deliberate, fairly and impartially, upon the testimony and evidence presented
at Virgil’s trial.”46 Unable to sustain Strickland’s presumption of an impartial
jury, we concluded that we “lack[ed] confidence in the adversarial process
that resulted in Virgil’s felony conviction and 30-year sentence.”47
The same is true here. As a result of counsel’s error, a juror who
expressed a preconception of Canfield’s guilt and an unwillingness to hold
the State to its burden of persuasion, and who was not clearly rehabilitated
on either point, sat on the jury that first convicted Canfield and then
sentenced him to 50 years’ imprisonment without parole.48 The law,
however, mandated that the juror be willing to lay aside her preconceptions.49
Because M.T. was never asked if she could do so and there is no record
evidence that she in fact did so, counsel’s failure to challenge her denied
Canfield an impartial jury.50
45
Id.46
Id.47
Id.; see also Biagas v. Valentine, 265 F. App’x 166, 172 (5th Cir. 2008) (per curiam)
(unpublished) (citing Virgil) (“[T]he effect that [the biased juror’s] presence on the jury
had on the ability of the remaining jurors to consider and evaluate the testimony and
evidence will never be known. Given this uncertainty, [the habeas petitioner’s] conviction
is unworthy of confidence and, as such, constitutes a failure in the adversarial process.”).
48
Cf. Virgil, 446 F.3d at 612–13.
49
See Irvin, 366 U.S. at 723.
50
Virgil, 446 F.3d at 613.
24
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C
The presence of a biased juror undermines confidence in the reliability
of the verdict and thereby establishes prejudice.51 But when the evidence is
overwhelmingly one-sided, even the presence of a biased juror cannot
undermine confidence in the verdict. In this important sense, the error is not
structural. Here, an eight-year-old girl testified that her father sexually
assaulted her on multiple occasions. She provided detailed sensory
information that, according to an expert witness, a child who was coached
would be unlikely to know. Moreover, five witnesses testified that she had
previously made statements to them that were consistent with her testimony.
The defense was unable to undermine or cast doubt on the testimony of the
State’s witnesses and did not call any witnesses of its own.
While the strength of the State’s uncountered evidence leaves me
unprepared to say that the biased juror rendered the judgment of guilt
unreliable, I cannot say the same of the sentence. The jury, empowered to
sentence Canfield to between 25 years and life imprisonment, imposed a
sentence of 50 years without parole, effectively a life sentence for the 30-year-
old defendant. The jury imposed this sentence despite expert testimony that
after 30 years’ imprisonment, Canfield’s probability of reoffending “drops
to almost nothing.”52 M.T.’s statements demonstrate a generalized bias
against the defendant and a desire to convict (and by extension punish) him,
regardless of whether the State met its evidentiary burden. Considering the
jury’s broad discretion to select Canfield’s sentence, “we cannot know the
effect [M.T.’s] bias had on the ability of the remaining . . . jurors to consider
51
See id. at 613–14; see also Biagas, 265 F. App’x at 172–73.
52
Although the State disputed the accuracy and utility of Static 99, its concern is
belied by its own policies and conduct: using the tool in its own civil commitment
proceedings and offering Canfield a 25-year plea deal just to avoid three days of trial.
25
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and deliberate, fairly and impartially, upon the testimony and evidence
presented at [Canfield’s]” sentencing.53 Thus, the jury’s sentence was
unreliable and the defense at sentencing was prejudiced under Strickland.
The State contends that the state habeas court’s decision was not
contrary to or an unreasonable application of clearly established law after the
Supreme Court’s decision in Weaver v. Massachusetts.54 There, the Court
considered a claim for ineffective assistance of counsel rooted in the trial
court’s closure of the courtroom during voir dire. Although denial of a public
trial is structural error, the Court held that prejudice is not presumed when
it is first raised through an ineffective-assistance claim, as the violation does
not necessarily result in a “fundamentally unfair trial” or “always deprive[]
the defendant of a reasonable probability of a different outcome.”55 Without
a presumption of prejudice, counsel’s error is prejudicial if there is a
“reasonable probability of a different outcome” in the petitioner’s case or,
“as the Court has assumed for these purposes,” the particular public-trial
violation “render[ed] his or her trial fundamentally unfair.”56 Here, the State
argues that it is not clearly established that a petitioner may establish
prejudice through fundamental unfairness. Perhaps.57 But my finding of
53
Virgil, 446 F.3d at 613.
54
137 S. Ct. 1899 (2017) (plurality).
55
Id. at 1911.
56
Id.
57
Only a handful of circuit courts have considered the meaning of prejudice in light
of Weaver. One read Weaver to hold that a showing of prejudice requires a “reasonable
probability of a different outcome.” Johnson v. Raemisch, 779 F. App’x 507, 513 n.5 (10th
Cir. 2019) (unpublished) (internal quotation marks and citation omitted). Most, however,
have read Weaver to hold that a petitioner may also show prejudice where the particular
violation rendered the “trial fundamentally unfair.” Williams v. Burt, 949 F.3d 966, 978
(6th Cir. 2020); United States v. Aguiar, 894 F.3d 351, 356 (D.C. Cir. 2018); United States
26
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prejudice turns not on fundamental unfairness but on the lack of reliability.58
I cannot trace the path of the erroneous seating of M.T. to the jury verdict of
50 years without parole, yet this indeterminacy shadows the reliability of this
sentencing verdict, which is the heart of the constitutional protection of trial
by jury and the vital trust of jury verdicts. 59 For that reason, a successful
challenge to the impartiality of a decisionmaker leaves “a defect in the trial
process that ‘undermine[s] confidence in the outcome’ in violation of
Strickland” and thus a reasonable probability of a different outcome but for
counsel’s errors.60 As a result, the relevant law remains “clearly established
. . . as determined by the Supreme Court of the United States.” 61
State law provides that when “the court of appeals or the Court of
Criminal Appeals awards a new trial . . . only on the basis of an error” at
sentencing, the trial court shall “commence the new trial as if a finding of
guilt had been returned and proceed to the punishment stage of the trial.”62
v. Thomas, 750 F. App’x 120, 128 (3d Cir. 2018) (unpublished), cert. denied, 139 S. Ct. 1218(2019); Pirela v. Horn, 710 F. App’x 66, 83 n.16 (3d Cir. 2017) (unpublished).
58
Virgil, 446 F.3d at 612 (quoting Strickland, 466 U.S. at 696) (“Absent mechanical
rules, ‘the ultimate focus of the inquiry must be on the fundamental fairness of the
proceeding whose result is being challenged.’ We focus on ferreting out ‘unreliable’ results
caused by ‘a breakdown in the adversarial process that our system counts on to produce
just results.’”); cf. Weaver, 137 S. Ct. at 1915 (Alito, J., concurring) (“Weaver makes much
of the Strickland Court’s statement that ‘the ultimate focus of inquiry must be on the
fundamental fairness of the proceeding.’ But the very next sentence clarifies what the
Court had in mind, namely, the reliability of the proceeding.”).
59
Strickland, 466 U.S. at 687 (emphasis added) (Prejudice “requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.”).
60
Virgil, 446 F.3d at 614 (quoting Strickland, 466 U.S. at 694).
61
28 U.S.C. § 2254(d)(1).
62
Tex. Code Crim. Proc. Ann. art. 44.29(b).
27
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It continues: “If the defendant elects, the court shall empanel a jury for the
sentencing stage of the trial in the same manner as a jury is empaneled by the
court for other trials before the court.”63 The Texas Court of Appeals has
read this article to apply to “new punishment hearings awarded through a
habeas proceeding in federal court.”64
In my view, the presence of a biased juror rendered Canfield’s
sentence unreliable. I would therefore reverse the district court’s judgment
denying habeas relief and remand to that court with instruction to return this
case to the State of Texas for a new sentencing trial with a jury if Canfield
elected, or, in the State’s discretion under the laws of the State, a new trial. I
respectfully dissent.
63
Id.64
Johnson v. State, 995 S.W.2d 926, 928 n.1 (Tex. App. 1999); cf. Lopez v. State,
18 S.W.3d 637, 640 (Tex. Crim. App. 2000) (citing Rent v. State, 982 S.W.2d 382, 385
(Tex. Crim. App. 1998)) (explaining that art. 44.29(b) was “enacted in order to give an
appellate court the authority to remand a case on punishment only”). But see Johnson, 995
S.W.2d at 931 (Gray, J., concurring) (concluding that art. 44.29(b) does not apply when the
remand is ordered by a federal court).
28