Jessie Wiley v. Harvey Grimmer , 476 F. App'x 292 ( 2012 )

Case: 10-31051 Document: 00511786756 Page: 1 Date Filed: 03/13/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 13, 2012
No. 10-31051 Lyle W. Cayce
Clerk
JESSIE JAMES WILEY
Petitioner-Appellant
v.
HARVEY GRIMMER, WARDEN
Respondent-Appellee
Appeal from the United States District Court for the
Western District of Louisiana, Monroe Division
Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Petitioner Jessie James Wiley appeals the denial of his petition for habeas
corpus arguing that his trial attorney’s failure to challenge the inclusion on the
jury of an employee of the parish sheriff’s department constituted ineffective
assistance of counsel. Because we find that the record shows the juror was not
impliedly biased and petitioner suffered no prejudice, we affirm the district
court’s denial of habeas relief.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 10-31051
I.
Jessie James Wiley (Wiley) was charged with possession of cocaine with
intent to distribute in Tensas Parish, Louisiana. During the jury selection for
his trial in state court, Wiley’s attorney did not challenge the inclusion of
Richard Townsend (Townsend), an employee of the parish sheriff’s department.
Townsend stated to the court that he was employed as a janitor at a local high
school, and that he worked on the night shift as a jailer with the Tensas Parish
Sheriff’s office. Townsend had been employed as a jailer for about two months
prior to the trial, during which time he had heard nothing about Wiley’s case
other than “street talk.” When asked whether he would be able to vote “not
guilty” if he felt that the state failed to meet its burden of proof, Townsend said
that he would. Neither Thomas nor the state’s attorney objected to the
placement of Townsend on the jury.
At trial, the Sheriff of Tensas Parish served as the state’s case agent and
its first witness against Wiley. Two of the sheriff’s deputies testified as fact
witnesses against Wiley. At the conclusion of the trial, the jury voted 10-2 to
convict Wiley. Townsend, the jury foreman, voted with the majority.
After his sentence and conviction were affirmed on direct appeal, Wiley
filed a pro se petition in state court for post-conviction relief. He asserted, inter
alia, that the jury was unconstitutionally selected because it included Townsend,
a jailer, and Marcus Harvey (Harvey), who was employed as a patrolman in
Tensas Parish. Wiley also argued that his counsel’s failure to challenge
Townsend constituted ineffective assistance of counsel. The state court denied
Wiley’s petition, finding with respect to the ineffective assistance of counsel
claim that Townsend’s testimony demonstrated that he was not influenced by
his position as a jailer, and that Wiley had failed to allege any facts that would
constitute actual prejudice as required by the Strickland standard.
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Wiley then filed a petition in district court pursuant to 28 U.S.C. § 2254,
alleging the same claims that he alleged in his state court petition. The district
court denied that petition, concluding that Wiley had failed to overcome the bar
on relitigation and had failed to show that he was prejudiced by his counsel’s
purported deficiencies.
Wiley filed a notice of appeal and sought a Certificate of Appealability
(COA), which the district court denied. On appeal, this court granted a COA in
part, vacated the district court’s judgment regarding the claim of ineffective
assistance of counsel, and remanded to the district court. On remand, the
district court ordered an evidentiary hearing and appointed counsel for Wiley.
Following the evidentiary hearing and the submission of post-hearing
briefs, the district court denied Wiley’s petition and simultaneously denied a
COA. Wiley appealed that ruling, and this court granted a COA regarding the
claim that Wiley’s trial counsel was ineffective in failing to challenge the
inclusion of Townsend.
II.
We review a district court’s denial of habeas relief “for clear error with
respect to findings of fact and de novo for issues of law.” Richardson v. Joslin,
501 F.3d 415, 417 (5th Cir. 2007).
Because Wiley’s ineffective assistance of counsel claim was litigated and
denied in state court, the Antiterrorism and Effective Death Penalty Act’s
provisions on relitigation apply here. The Antiterrorism and Effective Death
Penalty Act (AEDPA) generally bars relitigation of claims that have previously
been adjudicated on the merits by a state court. 28 U.S.C. § 2254(d); see Premo
v. Moore, 131 S. Ct. 733, 739 (2011); Schriro v. Landrigan, 550 U.S. 465, 473
(2007). A petitioner may overcome that bar and obtain federal habeas relief on
a claim that has been litigated in state court only if the petitioner can show that
the state court’s decision was contrary to clearly established federal law, as
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determined by the Supreme Court, that the decision was an unreasonable
application of such law, or that the decision was based on an unreasonable
factual determination. 28 U.S.C. § 2254(d)(1)–(2); see also Penry v. Johnson, 532
U.S. 782, 792 (2001). The standard established by the AEDPA and Supreme
Court precedent is highly deferential, permitting a federal court to grant relief
on a previously litigated claim only “where there is no possibility fairminded
jurists could disagree that the state court’s decision conflicts with [Supreme
Court] precedents.” Harrington v. Richter, 131 S.Ct. 770, 786 (2011).
III.
In denying Wiley’s post-conviction habeas petition, the state court found
that Wiley failed to show that Townsend was biased. A juror is biased if his
views would prevent or substantially impair the performance of his duties.
Soria v. Johnson, 207 F.3d 232, 242 (5th Cir. 2000). If a juror is not biased,
counsel’s failure to challenge that juror does not support a claim for ineffective
assistance of counsel. See Virgil v. Dretke, 446 F.3d 598, 608-09 (5th Cir. 2006).
Because there is no evidence of express bias here, Wiley must show specific
facts demonstrating such a close connection between Townsend and the
circumstances at hand that bias is implied as a matter of law. United States v.
Scott, 854 F.2d 697, 699 (5th Cir. 1988). Juror bias is imputed only in
extraordinary circumstances, Andrews v. Collins, 21 F.3d 612, 620 (5th Cir.
1994), and no such circumstances were presented in this case. See Scott, 854
F.2d at 699-700; United States v. Buckhalter, 986 F.2d 875, 879 (5th Cir. 1993);
Brooks v. Dretke, 444 F.3d 328, 332 (5th Cir. 2006).
As a jailer at the parish courthouse, Townsend did have some connection
to the prosecution. His employer, the Tensas Parish Sheriff, served as the case
agent for the state and testified on the state’s behalf, as did two of the sheriff’s
deputies, and Townsend said during voir dire that he knew the prosecutor
handling the case. But during his testimony at a hearing on Wiley’s state
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motion for a new trial, Townsend stated that he had no contact with the sheriff
during the trial, that he did not advise other jurors that he had any connection
to the sheriff, and that he did not believe that he influenced the jury or
represented the sheriff while serving on the jury. Townsend’s limited connection
to the prosecution, about which he was entirely forthcoming, is not analogous to
cases in which jurors purposefully concealed their close connection to law
enforcement in order to serve on the jury, as in Scott and Buckhalter, or in which
the prosecutor had clear power over the juror that could have influenced the
juror’s deliberation, as in Brooks.1
IV.
For the foregoing reasons, we conclude that the evidence shows that
Townsend was not impliedly biased. Accordingly, we AFFIRM the district
court’s denial of habeas relief to Wiley.
The judgment of the district court is AFFIRMED.
1
Because of the highly deferential standard established by the AEDPA, we do not need
to go beyond determining that the state court was reasonable in determining that Townsend
was unbiased and petitioner did not suffer prejudice. We have no quarrel, however, with the
district court’s conclusion that counsel’s decision not to challenge Townsend was an informed
strategic decision. Trial counsel concluded, based on thirty-five years of practice in Tensas
Parish, that Townsend, who was young, African-American, and somewhat familiar with Wiley,
would be more sympathetic than a “white, conservative farmer.” We agree with the district
court that this was not “so ill chosen [a strategy] that it permeate[d] the entire trial with
obvious unfairness.” Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir. 2004).
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