     Case: 12-20079    Document: 00512228944     Page: 1   Date Filed: 05/02/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                                  May 2, 2013

                                  No. 12-20079                   Lyle W. Cayce
                                                                      Clerk

S. A. DORIS WASHINGTON,

                                            Petitioner – Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                            Respondent – Appellee



                Appeal from the United States District Court
                     for the Southern District of Texas


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:
      Petitioner, S.A. Doris Washington, a Texas state prisoner, was convicted
by a jury of aggravated robbery with a deadly weapon and sentenced to a 55-year
term of imprisonment.       His conviction was affirmed on direct appeal.
Washington applied for state habeas relief. Washington claimed, inter alia, that
he was denied the right to an impartial jury and a fair trial due to the bias of a
juror. Specifically, Washington asserted that his trial attorney, Kurt Wentz, had
rendered ineffective assistance by failing either to challenge for cause or strike
Juror Number 12.
    Case: 12-20079    Document: 00512228944     Page: 2   Date Filed: 05/02/2013



                                 No. 12-20079
       The trial court record includes the following exchange between trial
counsel and Juror Number 12 during voir dire:
      MR. WENTZ: The Judge has talked to you about the Fifth
      Amendment, as well as [the State]. How many of you would require
      a defendant to testify at his trial?
      ...
      You’ve known this forever, basically, ever since you were taking
      civics in junior high school and high school. That doesn’t mean we
      don’t have our own feeling about this. How many simply would
      require a defendant to testify at his trial or they would hold it
      against him if he didn’t?

      THE JUROR: Number 12.

      MR. WENTZ: In other words, you could not really accord the
      defendant his Fifth Amendment right?

      THE JUROR: Although it is his choice, to me, if it was me to—if I
      was on that side I would feel I need to say whether I did or didn’t,
      explain why. So I would be leaning towards the prosecution if he
      didn’t testify in his own behalf.

      MR. WENTZ: So you would—

      THE JUROR: It’s an integrity issue for me.

      MR. WENTZ: But basically, I know where you’re coming from and
      I understand what you’re saying, but I think what you’re saying—

      THE JUROR: I would hold it against him, yes.

      Following these remarks, neither the trial court, the petitioner’s lawyer,
nor the prosecutor followed up on Juror Number 12’s statement with further
inquiry. Neither party challenged or struck Juror Number 12, and so he sat on
the jury that convicted Washington.
      The state habeas court ordered Mr. Wentz to file an affidavit. Finding
Wentz’s affidavit to be credible, the state habeas court adopted the following



                                       2
    Case: 12-20079     Document: 00512228944     Page: 3   Date Filed: 05/02/2013



                                  No. 12-20079
findings of fact and conclusions of law proposed by the respondent regarding
Juror Number 12:
      9. According to the credible affidavit of Kurt Wentz, juror number
      12 did not say that he could not follow the law with respect to
      affording the applicant his 5th Amendment right not to testify,
      thereby giving counsel a reason to strike him for cause.

      10. According to the credible affidavit of Kurt Wentz, and supported
      by the record, juror number 12 said that whether or not a defendant
      testified was an issue of integrity.

      11. According to the credible affidavit of Kurt Wentz, counsel did
      not use a peremptory strike on juror number 12 because counsel
      believed it was good strategy to keep him—specifically, that because
      this juror believed in the concept of integrity, he would judge
      harshly the accomplice witness testimony against the applicant.
The state habeas court recommended that relief be denied. The Texas Court of
Criminal Appeals denied relief without a written order or hearing based on the
findings of the trial court.
      Washington then filed a 28 U.S.C. § 2254 habeas petition, raising, inter
alia, the above claims of denial of a fair trial due to juror bias and ineffective
assistance of trial counsel. Respondent Thaler filed a motion for summary
judgment, and the district court granted that motion in part, dismissing all of
Washington’s claims except those for trial court error and ineffective assistance
of counsel relating to the bias of Juror Number 12. After further briefing on
those issues, Thaler filed a supplemental motion for summary judgment on those
issues, which the district court granted. The district court granted Washington
a certificate of appealability limited to the question of whether the trial court
denied Washington a fair trial by not dismissing, sua sponte, Juror Number 12.
We denied Washington’s request to expand the COA grant to include his claim
of ineffective assistance of counsel.




                                        3
    Case: 12-20079     Document: 00512228944      Page: 4    Date Filed: 05/02/2013


                                  No. 12-20079

      On habeas review, we review the district court’s findings of fact for clear
error and its legal conclusions de novo. Summers v. Dretke, 431 F.3d 861, 868
(5th Cir. 2005). Where the petitioner’s claim has been adjudicated on the merits
by the state court, the federal court’s review of the state court’s decision is
deferential. See 28 U.S.C. § 2254(d).
      Under § 2254(d)’s deferential standard, federal habeas relief cannot be
granted unless the state court’s adjudication
      either (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established federal law, as
      determined by the Supreme Court . . . , or (2) resulted in a decision
      that was based on an unreasonable determination of the facts in
      light of the evidence presented in the state court proceeding.
Id. A state court’s decision is “contrary to . . . clearly established Federal law,
as determined by the Supreme Court if: (1) the state court applies a rule that
contradicts the governing law set forth in [the Supreme Court’s] cases, or (2) the
state court confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at a result different
from [Supreme Court] precedent.” Summers, 431 F.3d at 869 (internal quotation
marks and citation omitted).
      A state court unreasonably applies clearly established Supreme Court
precedent “if the state court correctly identifies the governing legal rule but
applies it unreasonably to the facts of a particular prisoner’s case.” Id. (internal
quotation marks and citation omitted). The unreasonableness inquiry is an
objective one and does not ask whether the state court’s adjudication was merely
“incorrect.” Id. (internal quotation marks and citation omitted). Instead, habeas
relief is warranted only where the state court’s application of Supreme Court
precedent is both incorrect and unreasonable. Id. Moreover, a state court’s
factual findings are presumed correct unless the applicant rebuts that
presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Finally,


                                         4
    Case: 12-20079     Document: 00512228944       Page: 5   Date Filed: 05/02/2013


                                   No. 12-20079

§ 2254(d) authorizes federal courts to review only a state court’s decision, not the
written explanation for that decision. Summers, 431 F.3d at 868.
      The Texas Court of Criminal Appeals’ decision denying relief on
Washington’s juror bias claim was not an unreasonable application of clearly
established federal law as determined by the Supreme Court. The Supreme
Court has clearly established a defendant’s Fifth Amendment right to testify,
e.g., Harris v. New York, 401 U.S. 222, 225 (1971), and Sixth Amendment right
to trial by a fair and impartial jury, e.g., Irvin v. Dowd, 366 U.S. 717, 722 (1961).
Washington has not, however, cited any Supreme Court precedent establishing
state trial courts have a duty to sua sponte dismiss a purportedly biased juror.
      The Seventh Circuit, applying § 2254(d)(1), rejected a similar claim of
juror bias. Cage v. McCaughtry, 305 F.3d 625 (7th Cir. 2002). The court held,
in relevant part,
      This amounts to asking whether the judge has an obligation to
      dismiss a juror for cause even if no lawyer objects. . . . The Supreme
      Court has never announced such a rule, and so it is not a ground
      upon which a state prisoner can obtain relief in a federal habeas
      corpus proceeding. . . . The absence of a case in the Supreme Court
      (or any other court, as far as we know) declaring such a rule is not
      surprising. There is nothing suspicious about a lawyer’s refusing to
      strike a prospective juror for cause. The lawyer might feel that on
      balance the juror was more likely to vote for than against his client.
      In the hearing conducted in the district court on the petitioner’s
      claim of ineffective assistance, his trial lawyer explained that he
      had thought that Werth was trying to get off having to serve on the
      jury, and that if he were left on against his will he would blame the
      government, which had instituted the case, and therefore be
      inclined to vote for an acquittal. Correct or not, this is the kind of
      reasoning that a criminal defendant wants his lawyer to engage in.
      A rule requiring the judge to exercise all challenges for cause would
      not serve criminal defendants and is hardly a plausible
      interpretation of the Sixth Amendment, let alone one endorsed by
      any decision of the Supreme Court.



                                         5
    Case: 12-20079    Document: 00512228944      Page: 6   Date Filed: 05/02/2013


                                  No. 12-20079

Id. at 626 (internal citations omitted). We likewise hold there is no Supreme
Court precedent establishing an obligation for a trial court judge to dismiss a
juror for bias where no party objects.
      Moreover, Washington’s claim for federal habeas relief is barred by Teague
v. Lane, 489 U.S. 288 (1989).
      In Teague, the Court held that federal courts may not create new
      constitutional rules of criminal procedure on habeas review. A new
      rule is one which was not dictated by precedent existing at the time
      the petitioner’s conviction became final. A new rule is created if the
      rule is, in light of [Supreme Court] precedent, susceptible to debate
      among reasonable minds. If reasonable minds could differ on
      whether current law requires relief, we may not grant relief without
      creating a new rule barred by Teague.
Vega v. Johnson, 149 F.3d 354, 357 (5th Cir. 1998) (internal citations and
quotation marks omitted). Here, granting Washington relief would require us
to create a new rule of criminal procedure out of whole cloth. Therefore,
Washington’s claim is barred by Teague.
      For these reasons, we AFFIRM.




                                         6
