    Case: 12-50341    Document: 00512210631     Page: 1   Date Filed: 04/16/2013




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

                                                                   FILED
                                                                  April 16, 2013
                                 No. 12-50341
                                                                  Lyle W. Cayce
                                                                       Clerk



DAVID MORALES,

                                           Petitioner-Appellee,

versus


RICK THALER, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

                                           Respondent-Appellant.




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




Before REAVLEY, JOLLY, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


      The district court granted habeas corpus relief to David Morales after his
claim had been denied on the merits in state proceedings. The state appeals,
urging that the relitigation bar in the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), forbade the court to disregard the
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                                  No. 12-50341

state courts’ factual findings and legal conclusions. We agree, so we reverse and
render a judgment of dismissal.


                                        I.
      Morales was convicted of one count of aggravated sexual assault of a child
and one count of indecency with a child and sentenced to thirty-five years on the
first count and twenty on the second. The complaining witness, E.O., testified
that when she was six years old, Morales lured her into a bathroom, where he
touched and penetrated her vagina with his index and middle fingers.
      At his trial almost nine years later, Morales was represented by Charles
Roberts and Angelina Lugo. The trial court was unable to impanel a jury on its
first attempt. During the second attempt,
      One of the prospective jurors . . . was Robyn Wyatt, who was a pro-
      secutor in the El Paso County District Attorney’s Office, the same
      office that was prosecuting [Morales]. During voir dire, Wyatt
      maintained without contradiction that she could be fair and impar-
      tial despite her employment and her acquaintance with the State’s
      prosecutors, investigators, law enforcement personnel, the judge,
      and defense counsel. Additionally, Wyatt stated that she had not
      worked on [Morales’s] case. [Morales], however, challenged Wyatt
      for cause, arguing that she was an actual party to the case because
      she was a member of the district attorney’s office. The trial judge
      denied [Morales’s] challenge, noting that Wyatt was not shown to be
      biased and that [Texas law] does not make her subject to a challenge
      for cause based solely upon her occupation as an assistant district
      attorney.

State v. Morales, 253 S.W.3d 686, 689 (Tex. Crim. App. 2008).
      Roberts used all ten of his peremptory strikes, plus an eleventh on a poten-
tial alternate juror. That left eighteen potential jurors, so the state used only
three strikes, plus one on an alternate. Neither side used a strike on Wyatt, who
served as the presiding juror. Because Roberts failed to strike Wyatt, he did not
preserve error, if any, on the denial of his challenge for cause. Id.

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                                  No. 12-50341

      Morales moved for a new trial alleging, as relevant here, that his trial
attorneys provided ineffective assistance of counsel (“IAC”) when they failed to
preserve error by declining to use a peremptory challenge against Wyatt.
      Attached to the motion were affidavits from [Roberts and Lugo] in
      which they said that they “left [Wyatt] on the jury without looking
      at” her juror questionnaire. [Roberts] explained in his affidavit that
      he failed to examine Wyatt’s questionnaire before trial because he
      assumed that she would “automatically” be struck because of her
      status as an assistant district attorney but that they “were con-
      fronted with several bad choices when [they] had to make the
      strikes” at the end of voir dire, and they made the choice to retain
      her on the jury—again, without first examining her questionnaire.
      He maintained that had he read Wyatt’s questionnaire, he would
      have exercised one of his peremptory challenges against her because
      of the “magnitude” of her connections to law enforcement (her father
      had been a police officer for 33 years, and she had “many, many
      friends” in law enforcement, according to her questionnaire), and
      because of the fact (also contained in Wyatt’s questionnaire) “that
      she was repeatedly the victim of numerous crimes (including sex
      crimes)[.]” Both attorneys said in their affidavits that their failure
      to strike Wyatt had amounted to ineffective assistance of counsel.

Id. at 689–90 (second, fourth, and fifth alterations in original).
      The trial court held a hearing, during which Roberts testified that he
understood the procedure for preserving error and had no strategic justification
for leaving Wyatt on the jury. “It was a decision that I kind of made in a vac-
uum,” he said. “[B]ecause I had decided that she would be struck anyway, I
never—I made the mistake of never, ever looking at her sheet.”            Roberts
assumed that Lugo would look at her questionnaire, conceded on cross-
examination that he “did make a decision that day, clearly, to not strike her,”
but could not “really understand how we left her on the jury.” For any defense
counsel to leave “a lawyer for the State” on a criminal jury, he opined, was “per




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                                      No. 12-50341

se, ineffective assistance of counsel.” Id. at 690.1
       The state called Judge Sam Medrano, Jr., who testified concerning a con-
versation he had with Roberts while the jury was deliberating. The two won-
dered why the jury had been deliberating for so long. “[W]hen a prosecutor is
the presiding juror,” Medrano told Roberts, “I would assume it’s going to take a
while before they come back with questions or a verdict[.]” Id. According to
Medrano,
       [Roberts] indicated to me that it was a decision on their part to
       leave [Wyatt] on the jury. There were certain factors that were
       taken into account. He indicated . . . that there was a male juror
       who was college-educated from Louisiana and was a Republican,
       and that was a person that they felt they needed to strike more than
       Robyn Wyatt, and that Ms. Wyatt was a prosecutor that they had
       dealt with in the office who was as fair a prosecutor as they’ve ever
       dealt with, and that they felt comfortable with her being a juror in
       this case because of their working relationship with her as a
       prosecutor.

Id. at 690–91 (second alteration in original). As Medrano remembered their
conversation, Roberts told him that “he had taken into account the fact that she
was a prosecutor and made a decision to leave her on as a juror.” Id. at 691.
       Roberts was recalled to the stand and admitted that Medrano accurately
recounted their conversation. He acknowledged he had decided not to strike
Wyatt but insisted he had not had extensive discussions about it beforehand
with Lugo. As to the explanation he offered the judge—“I think I was less than
candid to Judge Medrano because I wasn’t testifying and I wasn’t—I was just
trying to put the best face on it that I could.” Id. The trial court denied Mor-
ales’s motion for a new trial.
       On appeal, Morales argued that the trial court erred in denying his chal-

       1
         Lugo testified that she (1) failed to read Wyatt’s questionnaire, (2) should have
insisted they use a peremptory strike, (3) had no strategic reason for failing to do so, but
(4) made a conscious choice not to. Id.

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                                   No. 12-50341

lenge to Wyatt for cause and that his counsel provided IAC by failing to use a
peremptory strike to preserve the issue. The appeals court held that Morales
had waived the challenge for cause but that Wyatt should have been disqualified
under the “implied bias” doctrine, that his counsel rendered IAC by failing to
preserve the error, and that Morales suffered prejudice (“trial before a partial
jury”) as a result. Id. at 691–92. The court focused on the concurring opinion in
Smith v. Phillips, 455 U.S. 209, 221, 222 (1982), in which Justice O’Connor, writ-
ing only for herself, maintained that “some extreme situations . . . would justify
a finding of implied bias. Some examples might include a revelation that the
juror is an actual employee of the prosecuting agency[.]”
      The Texas Court of Criminal Appeals (“TCCA”) reversed. Assuming argu-
endo that Wyatt was challengeable for cause under the implied-bias doctrine, the
court reasoned that trial counsel could have made a legitimate strategic decision
to forgo such a challenge in return for a more favorable jury overall. Morales,
253 S.W.3d at 692. The court held that
      if the exigencies of trial call upon trial counsel to make a difficult
      choice between exercising a scarce peremptory challenge to preserve
      such an error for appeal, on the one hand, and exercising that per-
      emptory challenge for some other purpose in order to secure a per-
      ceived advantage at trial, on the other, it does not violate the defen-
      dant’s Sixth Amendment right to the effective assistance of counsel
      for trial counsel to opt for the latter.

Id. at 696. The right to an impartial jury, reasoned the TCCA, is a waivable
right, subject to legitimate strategic considerations. If defense counsel can legiti-
mately choose to impanel a juror who is actually biased against the defendant,
see Delrio v. State, 840 S.W.2d 443, 445–46 (Tex. Crim. App. 1992), they could
choose to impanel one who is only impliedly biased, Morales, 253 S.W.3d at 698.
      The court then considered the hearing testimony, especially Roberts’s
statement to Medrano that they were “comfortable” leaving “as fair a prosecutor


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                                       No. 12-50341

as they’ve ever dealt with” on the jury. From this, “the trial court could ration-
ally infer that [Morales’s] trial attorneys made a difficult tactical decision to
leave Wyatt on the jury” and could have credited Medrano’s testimony while
finding Roberts’s and Lugo’s incredible. “Reviewing courts,” the court noted, “are
bound to defer to such implicit findings of fact.” Id. Therefore, because trial
counsel legitimately could have made a strategic choice to leave Wyatt on the
jury, and because it was required to defer to the trial court’s factual determina-
tion that Morales’s attorneys had done so, the court concluded that the failure
to use a peremptory strike did not amount to IAC. Id. at 698–99.
      Morales next applied for state postconviction relief, arguing, again, that
Roberts and Lugo had rendered IAC. The state habeas court concluded that
Morales’s argument was barred because it had already been raised and rejected;
in the alternative, the court held that trial counsel were not deficient. Of par-
ticular importance, the court found “not credible Attorney Robert’s [sic] affidavit
and new-trial testimony, in which he asserted that he did not view Wyatt’s
questionnaire and had no strategic reason for leaving her on the jury.”2 Contrar-
iwise, the court found “credible the Honorable Judge Medrano’s account of the
discussion that transpired between him and Attorney Roberts regarding trial
counsels’ decision to leave Wyatt on the jury.” “The record,” according to the
court, “reflects that trial counsel had a strategic reason for leaving Wyatt on the
jury.” The TCCA adopted the habeas court’s findings of fact and conclusions of
law without opinion.
      Morales applied for habeas relief under 28 U.S.C. § 2254, which the dis-
trict court granted. The court acknowledged the TCCA’s deference to the trial
court’s finding that Morales’s counsel had made a “difficult tactical decision” not
to strike Wyatt from the jury, but it disagreed with the TCCA’s conclusion that


      2
          The court reached parallel findings concerning Lugo.

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                                  No. 12-50341

that was a reasonable finding of fact. In particular, the district court credited
“the admissions by both of Morales’s trial counsel that they erred when they
failed to review Wyatt’s juror information sheet and failed to preserve the trial
court’s error,” and it also credited “the assertions by Morales’s attorneys that
they had no strategic reasons for their deficiencies.” Therefore, the district court
found “that the state courts’ decision—‘was contrary to, or involved an unrea-
sonable determination of, clearly established Federal law . . . or . . . was based
on an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.’” The state appeals, urging that the district court
impermissibly disregarded AEDPA’s relitigation bar, 28 U.S.C. § 2254(d).


                                        II.
      “In reviewing a grant of habeas relief, we examine factual findings for
clear error and issues of law de novo.” Barrientes v. Johnson, 221 F.3d 741, 750
(5th Cir. 2000). “When examining mixed questions of law and fact, we also uti-
lize a de novo standard by independently applying the law to the facts found by
the district court, as long as the district court’s factual determinations are not
clearly erroneous.” Id.


                                        III.
      To show IAC, Morales must satisfy both the performance and prejudice
prongs of Strickland v. Washington, 466 U.S. 668 (1984). First, he must demon-
strate that Roberts and Lugo “made errors so serious that counsel was not func-
tioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
at 687. Second, he must show that those “errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Id. Reviewing
courts must avoid scrutinizing counsel’s performance too stringently: “It is all
too tempting for a defendant to second-guess counsel’s assistance after conviction

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                                   No. 12-50341

or adverse sentence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.” Id. at 689. The court must “evaluate the conduct
from counsel’s perspective at the time. Because of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance[.]” Id.
      When a state court has already adjudicated a Washington claim on the
merits, the district court may not consider the question de novo. Instead,
AEDPA’s relitigation bar requires that the petition be denied unless the state
adjudication (1) “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States” or (2) “resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence pre-
sented in the State court proceeding.” 28 U.S.C. § 2254(d).
      “[T]he phrase ‘clearly established Federal law, as determined by the
Supreme Court of the United States’ . . . refers to the holdings, as opposed to the
dicta, of [Supreme Court] decisions as of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision
is “contrary to” clearly established Federal law “if it reaches a legal conclusion
in direct conflict with a prior decision of the Supreme Court or if it reaches a dif-
ferent conclusion than the Supreme Court based on materially indistinguishable
facts.” Gray v. Epps, 616 F.3d 436, 439 (5th Cir. 2010). “[A]n unreasonable
application of federal law is different from an incorrect application of federal
law.” Williams, 529 U.S. at 410. “[I]t is not enough to convince a federal habeas
court that, in its independent judgment, the state-court decision applied [Wash-
ington] incorrectly. Rather, [the petitioner] must show that the [state court]
applied [Washington] to the facts of his case in an objectively unreasonable man-
ner.” Bell v. Cone, 535 U.S. 685, 699 (2002) (internal citation omitted).

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                                  No. 12-50341

      “With respect to the review of factual findings, AEDPA significantly
restricts the scope of federal habeas review.” Brown v. Dretke, 419 F.3d 365, 371
(5th Cir. 2005). The petitioner must show that the factfinder’s decision was
objectively unreasonable, “a substantially higher threshold” than showing the
decision was merely “incorrect or erroneous.” Blue v. Thaler, 665 F.3d 647,
654–55 (5th Cir. 2011). “[A] state-court factual determination is not unreason-
able merely because the federal habeas court would have reached a different con-
clusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Fur-
thermore, under 28 U.S.C. § 2254(e), the factual determinations of the state
court “shall be presumed to be correct.” Morales bears “the burden of rebutting
the presumption of correctness by clear and convincing evidence.” Id.
      Washington claims are particularly difficult to win under AEDPA’s reliti-
gation bar.
      The standards created by [Washington] and § 2254(d) are both
      “highly deferential,” and when the two apply in tandem, review is
      “doubly” so. The [Washington] standard is a general one, so the
      range of reasonable applications is substantial. Federal habeas
      courts must guard against the danger of equating unreasonableness
      under [Washington] with unreasonableness under § 2254(d). When
      § 2254(d) applies, the question is not whether counsel’s actions were
      reasonable. The question is whether there is any reasonable argu-
      ment that counsel satisfied [Washington’s] deferential standard.

Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (internal citations omitted). “If
this standard is difficult to meet, that is because it was meant to be.” Id. at 786.
      The state argues that the district court erred in two ways: First, it unjusti-
fiably disregarded the state courts’ factual determination that Roberts and Lugo
made a strategic decision to leave Wyatt on the jury; second, without identifying
any controlling Supreme Court precedent, it concluded that trial counsel were
constitutionally ineffective in failing to preserve an objection that no Texas court
had ever accepted. The state contends that Roberts and Lugo did not render IAC


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                                         No. 12-50341

and, in the alternative, that the Texas courts were not objectively unreasonable
by so concluding.3


                                                A.
       The central question is whether the state courts’ factual finding4—that
Roberts and Lugo made a strategic and tactical decision to keep Wyatt on the
jury rather than seat the Republican college graduate or roll the dice with a new
jury pool—was objectively unreasonable in light of the evidence presented in the
state court proceedings. The district court erred on this point: Although it
offered six reasons for disagreeing with the TCCA’s conclusion that the trial
court’s implicit fact findings were reasonable,5 its reasons are unpersuasive.



       3
         Morales’s brief fails to cite any relevant law or respond to the state’s arguments in any
depth. His main contention appears to be that the state’s position on implied bias is irrele-
vant, because this “is a self evident truth of actual bias.” As the state points out, any claim
that Morales’s trial counsel rendered IAC because they failed to object to an actually biased
juror is not properly before us. Morales’s apparent abandonment of the district court’s
implied-bias ruling does not end this case, however, because “it is an elementary proposition,
and the supporting cases too numerous to cite, that this court may affirm the district court’s
judgment on any grounds supported by the record.” Palmer ex rel. Palmer v. Waxahachie
Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009).
       4
          The trial court found, implicitly, that Roberts and Lugo were not credible, that
Medrano was credible, and therefore that trial counsel had a strategic reason to keep Wyatt
on the jury. Morales, 253 S.W.3d at 698. The TCCA deferred to the court’s implicit factual
finding. Id. The state habeas trial court explicitly found trial counsel incredible and Medrano
credible and that trial counsel had made a tactical choice. The TCCA adopted the trial court’s
findings of fact. AEDPA requires us to defer to the state habeas court’s findings, but those
findings are intertwined with the implicit findings of the state trial court.
       5
          Although the district court recited § 2254(d)(2) at other places in its opinion, it is not
evident that the court actually analyzed the state courts’ factual findings in light of AEDPA.
The court noted that Texas “appellate courts must defer to any reasonable implied factual find-
ings that the trial court might have made in denying a motion for a new trial,” but it decided
that it could not agree with the TCCA’s conclusion that “the trial court’s finding . . . was rea-
sonable[.]” The district court’s conclusion appears to be that the TCCA incorrectly deferred
to the trial court’s implicit finding of fact. The proper question, instead, is whether the state
habeas court’s findings of fact were objectively unreasonable. We assume arguendo, that the
district court concluded, for the six reasons it gave, that they were not objectively reasonable.

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                                        No. 12-50341

       Four of those reasons are irrelevant to the factual issue. First, the district
court offered “Justice O’Connor’s warning that an actual employee of the prose-
cuting agency was impliedly biased[.]” See Smith, 455 U.S. at 222 (O’Connor, J.,
concurring). Whatever the relevance of Justice O’Connor’s warning to the
TCCA’s legal conclusion, it offers no insight into the factual question whether
Roberts and Lugo made a strategic choice. Second, similarly, “the trial court’s
. . . denial of Morales’s challenge for cause” has nothing to do with the findings
of fact. Third, the intermediate appellate court’s opinion, which the district court
considered “well-reasoned and legally correct,” did not even address whether
trial counsels’ failure to use a peremptory strike was a tactical choice. See
Morales v. State, 217 S.W.3d 731, 735–36 (Tex. App.—El Paso 2007). Fourth,
that Morales moved for a new trial based on IAC does not mean his factual and
legal assertions were correct.
       The only relevant reasons offered by the district court were that trial coun-
sel had admitted they had not reviewed Wyatt’s juror questionnaire and failed
to preserve error and that they had asserted they had no strategic reason for
doing so. Those admissions and assertions were only half the evidence that the
state courts considered when making their factual findings; they also considered
Medrano’s contradictory testimony, which they credited implicitly and explicitly.
Even if the parties contradicted each other on every point during the new-trial
hearing, the state courts would not have been “objectively unreasonable” to
believe one party over another about a he-said, she-said disagreement.
       AEDPA does not allow federal habeas courts to gainsay state courts’
assessments of credibility on a cold paper record.6 In this case, though, Roberts
admitted that Medrano had described their conversation accurately but


       6
        See, e.g., Patton v. Yount, 467 U.S. 1025, 1038 (1984) (reasoning that trial court deter-
minations of credibility and demeanor, which are entitled to “special deference” on direct
review, deserve “no less” respect in habeas proceedings).

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                                       No. 12-50341

explained that he had been “less than candid[.]” Morales, 253 S.W.3d at 691.
The state courts’ factual finding did not require them, therefore, to decide which
of two witnesses was more credible, but instead whether Roberts was telling the
truth to a sitting judge before he lost his case or truthfully testified under oath
at a hearing attempting to give his client another trial. Nothing about the state
courts’ findings of fact was objectively unreasonable in light of the evidence
before them.


                                              B.
      Once we accept the state courts’ findings of fact, the issue is whether Rob-
erts and Lugo rendered IAC by making a difficult strategic choice to seat Wyatt
rather than preserving Morales’s implied bias challenge, or, more accurately,
whether the state courts’ conclusion that they were not constitutionally inef-
fective was contrary to or an unreasonable application of clearly established fed-
eral law. Both courts that have granted habeas relief to Morales have focused
on Justice O’Connor’s opinion in Smith, 455 U.S. at 221, in which she argued
that the doctrine of implied bias was justified in “extreme situations,” which
might include the revelation that a juror was employed by the prosecuting
agency, id. at 222.
      The state argues extensively that the implied-bias doctrine was not con-
trolling precedent during Morales’s trial, that it was not clearly established fed-
eral law as determined by the Supreme Court, and that, in any case, Justice
O’Connor’s solo concurrence could not bind the TCCA. This court has held, how-
ever, “that the doctrine of implied bias is clearly established Federal law as
determined by the Supreme Court.” Brooks v. Dretke, 444 F.3d 328, 329 (5th Cir.
2006) (internal quotation marks omitted).7 We need not decide whether the

      7
          The state contends that Brooks “was unlawful insofar as it departed from [Andrews
                                                                                (continued...)

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                                       No. 12-50341

state’s contentions are correct; the TCCA held that Roberts and Lugo did not
render IAC even assuming that “the Sixth Amendment embraces the doctrine of
implied bias . . . [and that] the implied bias doctrine would require the exclusion
from jury service of a prospective juror who is an employee of the prosecuting
agency, as Wyatt was.” Morales, 253 S.W.3d at 696. If the TCCA’s decision was
contrary to clearly established federal law, it was not for failure to recognize the
implied-bias doctrine.
       In summary, the TCCA determined that trial counsel did not render IAC,
because the right to an impartial jury “is subject to waiver . . . [and] subject to
the legitimate strategic or tactical decision-making processes of defense counsel
during the course of trial,” and Roberts and Lugo made a legitimate tactical deci-
sion to leave Wyatt, a fair prosecutor with whom they felt comfortable, on the
jury. Id. at 697–98. Neither Morales nor the district court points to any
Supreme Court holding that contradicts the TCCA’s reasoning, nor have we dis-
covered one. For that and three additional reasons, the TCCA’s holding was not
contrary to or an unreasonable application of clearly established federal law.
       First, on multiple occasions, this court has concluded that attorneys did
not render IAC when they decided for strategic reasons not to strike potential
jurors who admitted they were “probably” biased against the defendant. In Tor-
res v. Thaler, 395 F. App’x 101, 107–08 (5th Cir. 2010) (per curiam), defense
counsel decided not to use a for-cause or peremptory strike against a potential


       7
          (...continued)
v. Collins, 21 F.3d 612, 620 (5th Cir. 1994)], which held that ‘[t]he Supreme Court has never
explicitly adopted or rejected the doctrine of implied bias [and] has not looked favorably upon
attempts to impute bias to jurors.’” The Andrews court, 21 F.3d at 620–21, went on, however,
to cite and apply Justice O’Connor’s opinion, concluding that the juror was not a “close rela-
tive” of the victim even though his daughter had been married to the victim’s deceased grand-
son. Nothing about Brooks overruled Andrews, so we may not disregard Brooks. Our rule of
orderliness prevents one panel from overruling the decision of a prior panel.” Van Staden v.
St. Martin, 664 F.3d 56, 58 n.3 (5th Cir. 2011) (citation omitted), cert. denied, 133 S. Ct. 110
(2012).

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                                        No. 12-50341

juror who “thought his experiences would affect his impartiality and that he
would ‘probably’ be more for the State[.]” The state habeas court had found that
counsel made a strategic decision to seat the juror and did not render IAC. This
court held that the state court’s application of federal law was not objectively
unreasonable. Id. at 108.8 If it is not IAC to decide, strategically, not to strike
a potential juror who admits to being probably or possibly biased against the
defendant, it would not be IAC to decide, for tactical reasons, not to strike a
potential juror who is merely impliedly biased against the defendant but whom
counsel thought to be fair and who swore that she could be fair and impartial.
       Second, the state points out that “it is ‘clearly established’ that the Sixth
Amendment’s Confrontation Clause bars the introduction on [sic] testimonial
hearsay from absent declarants.” See Crawford v. Washington, 541 U.S. 36,
53–54 (2004). Nonetheless, defense counsel does not render IAC by strategically
forgoing a Crawford objection.9 To be sure, deciding to seat a biased juror, even
an impliedly biased juror, is a much weightier decision than is deciding not to
object to out-of-court statements read by the prosecutor during sentencing. See
id. But neither Morales nor the district court identifies a Supreme Court case,
nor have we found one, holding that the Sixth Amendment right to an impartial
jury, unlike the right to confront witnesses, is unwaivable.
       Third, Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006), holding that trial



       8
        See also, e.g., Seigfried v. Greer, 372 F. App’x 536, 540–41 (5th Cir. 2010) (per curiam)
(holding that it was not IAC to decline to use peremptory strike on a potential juror whose
statements “hinted at possible bias against” defendant where counsel strategically used per-
emptory strikes against jurors who might have been more likely to convict). Although Torres
and Seigfried are unpublished and therefore nonprecedential, see 5TH CIR. R. 47.5, their rea-
soning is persuasive.
       9
          See Rivas v. Thaler, 432 F. App’x 395, 404 (5th Cir. 2011) (per curiam) (holding that
district court’s decision that trial counsel’s failure to object to Crawford material “was based
on a reasonable trial strategy and did not constitute deficient performance under [Washing-
ton’s] first prong” was not “debatable”). Again, Rivas is not precedential but is persuasive.

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                                       No. 12-50341

counsel was constitutionally ineffective for failing to challenge actually biased
jurors for cause, despite the state court’s decision to the contrary, is distinguish-
able but instructive. Petitioner contended “that his counsel was constitutionally
deficient in failing to challenge for cause the five challenged jurors who were
‘actually and admittedly’ biased.” Id. at 608. As to three, their “limited and
natural response” to a single question—“that they could not fairly consider the
testimony of a person with a prior conviction”—was “insufficient to raise any
obligation on the part of counsel to respond with a peremptory or for-cause chal-
lenge.” Id. at 608–09. As to the remaining two, their admissions that they could
not be “‘fair and impartial’ obligated [defense] counsel to use a peremptory or for-
cause challenge . . . [and failure to do] so was deficient performance under
[Washington].” Id. at 610. “Moreover,” the court reasoned, counsel’s post-hoc
explanation “fail[ed] to rehabilitate his performance” and “lack[ed] any sugges-
tion of a trial strategy for not using peremptory or for-cause challenges on [the
biased jurors.]” Id. “In light of the statements of [the jurors] and absent some
explanation for keeping them on the jury, we consider counsel’s failure to use a
peremptory or for-cause challenge . . . to be constitutionally deficient.” Id.
(emphasis added). The court also rejected as unpersuasive the state’s alterna-
tive explanations of counsel’s potential strategy. Id. at 610–11.
       By implication, trial counsel, making a reasonable tactical decision, could
elect to seat an actually biased juror without rendering IAC.10 That is even more
true, then, where the juror was only impliedly biased, was known personally by
counsel, who thought her fair, and where counsel attempted a for-cause chal-
lenge, but then was forced to decide whether to preserve a challenge no Texas
court had ever used to overturn a conviction at the cost of allowing a Republican


       10
         Cf., e.g., Torres, 395 F. App’x at 108 (holding that the failure to strike potentially
biased juror was not IAC where decision was based on trial strategy); Seigfried, 372 F. App’x
at 540–41 (same).

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                                   No. 12-50341

on the jury. A “conscious and informed decision on trial tactics and strategy can-
not be the basis for constitutionally [IAC] unless it is so ill chosen that it perme-
ates the entire trial with obvious unfairness.” Virgil, 446 F.3d at 608. The state
courts’ conclusionSSthat trial counsels’ decision to seat Wyatt did not permeate
the entire trial with obvious unfairnessSSis not contrary to or an unreasonable
application of any Supreme Court holding of which we are aware.
      The judgment granting habeas relief is REVERSED, and a judgment of
dismissal is RENDERED in favor of the state.




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