              This opinion is subject to revision before final
                   publication in the Pacific Reporter.

                               2014 UT 44

                                 IN THE
      SUPREME COURT OF THE STATE OF UTAH
                            ———————
                            STATE OF UTAH,
                              Respondent,
                                    v.
                     RONNIE CYRIL SESSIONS,
                             Petitioner.
                         ———————
                           No. 20120975
                      Filed October 21, 2014
                          ———————
                     Third District, Salt Lake
                The Honorable Deno G. Himonas
                          No. 091902780
                          ———————
            On Certiorari to the Utah Court of Appeals
                          ———————
                            Attorneys:
   Sean D. Reyes, Att’y Gen., Ryan D. Tenney, Asst. Att’y Gen.,
                  Salt Lake City, for respondent
                 Joan C. Watt, Brittany D. Enniss,
                   Salt Lake City, for petitioner
                          ———————
      JUSTICE LEE authored the opinion of the Court, in which
    CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
           JUSTICE DURHAM, and JUSTICE PARRISH joined.
                          ———————

 JUSTICE LEE, opinion of the Court:
  ¶1 Ronnie Sessions was convicted of aggravated sexual assault
and domestic violence in the presence of a child arising out of his
attack on his wife in the presence of the couple’s four-year-old
daughter. At voir dire, counsel for Sessions used all five of his pe-
remptory challenges on female members of the venire. When the
prosecution objected, Sessions failed to give nondiscriminatory
explanations for two of the strikes upon the trial court’s request.
The trial court then reinstated those two jurors but did not restore
                         STATE v. SESSIONS
                       Opinion of the Court

the two peremptory challenges Sessions used to strike them. On
appeal, the court of appeals upheld Sessions’s conviction on the
ground that he failed to show that he was prejudiced by his attor-
ney’s allegedly deficient performance or by the trial court’s deci-
sion to reinstate the two jurors.
  ¶2 Sessions challenges the court of appeals’ decision, arguing
that his counsel’s performance was deficient and gives rise to a
presumption of prejudice, and that the loss of two peremptory
challenges was plain error. We disagree and thus affirm.
                                  I
  ¶3 In March 2009, Sessions and the victim, his wife at the time,
were living together with their three children, the victim’s mother,
and the victim’s adult child from a previous relationship. Around
this time, Sessions began to suspect his wife of infidelity and de-
cided to confront her. An argument ensued, which ultimately es-
calated and became physical.
  ¶4 During the assault, with the couple’s four-year-old daugh-
ter in the room, Sessions kicked the victim out of the couple’s bed
and began choking her. He then threatened to rape and kill her,
forcibly removed her clothing, and sexually assaulted her by vio-
lently thrusting his fist into her vagina. Sessions then left the room
and his wife called 911. The victim’s adult son heard her scream-
ing and came into the bedroom where he found her naked and
bleeding on the floor.
  ¶5 The victim was examined by a sexual assault nurse later
that night. The nurse found injuries indicative of attempted stran-
gulation. She also discovered injuries consistent with the victim’s
account of Sessions sexually assaulting her with his fist.
  ¶6 Sessions was charged with one count of aggravated sexual
assault and two counts of domestic violence in the presence of a
child. During jury selection, juror 19 indicated that her niece had
been sexually assaulted as a minor. She also noted that she had
served as a juror in a criminal assault case fifteen years earlier.
When asked if she could set aside her feelings and render a “true
and correct” verdict, she indicated that she could. Neither Ses-
sions nor the trial judge conducted any further inquiry, and Ses-
sions did not challenge juror 19 for cause.



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  ¶7 The trial judge then asked the potential jurors whether any
of them “[felt] that the testimony of someone working in law en-
forcement is more or less believable than anybody else.” Juror 23
raised her hand, but no one inquired further or asked any other
questions about the issue. Later, juror 23 also told the trial judge
that she had seen pretrial publicity that may have been related to
the case, but stated that she could be fair and impartial and that
she could not be certain the publicity she saw concerned this case.
  ¶8 After striking eighteen potential jurors for cause, Sessions
and the State passed on the remainder, including jurors 19 and 23.
Each side was then allocated five peremptory challenges. Sessions
used all five of his challenges on women, including jurors 19 and
23.
  ¶9 The State raised a Batson objection, asserting discrimination
on the basis of gender in defense counsel’s actions in using all of
his peremptory challenges to strike women from the jury. The tri-
al judge asked Sessions’s counsel if he realized that he did not
“have the ability to strike people based upon their gender,” and
counsel answered, “I did not do that.” The trial judge then asked
counsel to provide gender-neutral explanations for each strike. He
did so for all but jurors 19 and 23.
  ¶10 As to juror 19, counsel told the trial judge that he had
drawn “two arrows down” next to juror 19’s name on his notes,
but could not remember why. “Something she said” had bothered
him, but he could not remember what it was and thus he struck
her based on a “gut feeling.” Counsel had no explanation for
striking juror 23. When subsequently pressed by the court, coun-
sel appeared to concede that he was unaware of any legal prohibi-
tion on striking potential jurors on the basis of gender, but in-
sisted he had not done so.
  ¶11 The trial court concluded that Sessions had challenged ju-
rors 19 and 23 in a manner inconsistent with the equal protection
standard recognized in Batson v. Kentucky, 476 U.S. 79 (1986), and
stated that it would be willing to entertain a motion for mistrial or
alternative relief. The State declined to request a mistrial, but sug-
gested instead that the court reinstate jurors 19 and 23 to the pan-
el. Counsel for Sessions did not object or ask the court to restore
the two peremptory challenges he had lost. Jurors 19 and 23 were



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                        Opinion of the Court

reinstated and ultimately sat on the jury, which convicted Ses-
sions on all counts.
  ¶12 Sessions appealed, arguing that his trial counsel was inef-
fective for using his peremptory challenges in a discriminatory
manner, for being unable to articulate nondiscriminatory reasons
for striking jurors 19 and 23, and for failing to object to the trial
court’s remedy of reinstating the jurors. See State v. Sessions, 2012
UT App 273, ¶ 1, 287 P.3d 497. In addition, Sessions argued that
that the loss of two peremptory challenges warranted a presump-
tion of prejudice.
  ¶13 The court of appeals affirmed, holding that (a) the loss of
two peremptory challenges did not warrant a presumption of pre-
judice, and (b) Sessions had not shown he was actually prejudiced
by his counsel’s allegedly deficient performance or by the trial
court’s alleged errors. See id. ¶¶ 23–35. Sessions filed a petition for
certiorari, which we granted.
 ¶14 On certiorari, we review not the underlying decision of the
district court, but the ultimate decision of the court of appeals—a
decision that merits no deference in our analysis. See State v. Verde,
2012 UT 60, ¶ 13, 296 P.3d 673.
                                  II
  ¶15 Because Sessions’s objections were not preserved at trial, he
proceeds under principles of ineffective assistance of counsel and
plain error. See State v. Sessions, 2012 UT App 273, ¶¶ 13–14, 287
P.3d 497. On the ineffective assistance claim, Sessions challenges a
range of trial counsel’s actions in connection with the exercise of
his peremptory challenges. In asserting plain error, Sessions as-
sails the trial court’s decision to reinstate jurors 19 and 23 and its
failure to sua sponte restore the peremptory challenges used to
strike them.
  ¶16 We affirm. First, we conclude that Sessions has largely
failed to establish the objective deficiency of his counsel’s perfor-
mance, and in any event that he has not shown that any prejudice
arose from any arguable deficiency or that there is a basis for a
presumption of prejudice. Second, we hold that Sessions has
failed to establish the elements of plain error.




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                       Opinion of the Court

                A. Ineffective Assistance of Counsel
  ¶17 To prevail on his claim for ineffective assistance of counsel,
Sessions has the burden of demonstrating (1) that his counsel ren-
dered a demonstrably deficient performance that fell below an ob-
jective standard of reasonable professional judgment, and (2) that
counsel’s performance resulted in prejudice. See Strickland v.
Washington, 466 U.S. 668, 691–92 (1984); see also Bundy v. Deland,
763 P.2d 803, 805–06 (Utah 1988) (restating and applying the
Strickland test). Sessions has failed to carry his burden. For the
most part, he has failed to demonstrate objectively deficient per-
formance. And in any event, he has also failed to establish actual
prejudice or any basis for presumed prejudice.
                      1. Deficient Performance
  ¶18 An attorney’s performance is deficient under Strickland if it
can be shown to have fallen “below an objective standard of rea-
sonableness.” Nicholls v. State, 2009 UT 12, ¶ 37, 203 P.3d 976
(quoting Strickland, 466 U.S. at 688). This standard is met where it
is established that “counsel made errors so serious that counsel
was not functioning as the counsel guaranteed the defendant by
the Sixth Amendment.” Id. (internal quotation marks omitted).
  ¶19 Sessions asserts four counts of deficient performance by his
trial counsel: (1) not knowing that gender-based jury strikes are
prohibited by law, (2) exercising the peremptory challenges in a
discriminatory fashion, (3) failing to object to the loss of two chal-
lenges and not moving for a mistrial, and (4) failing to state a
gender-neutral justification for striking jurors 19 and 23 and to
take the notes necessary to be prepared to do so.
  ¶20 None of these assertions of deficiency is meritorious—save
perhaps the last one. We hold that Sessions has failed to carry his
burden of establishing objective deficiency on the first three
counts. As to the fourth, we acknowledge the arguable merits of
Sessions’s claim but ultimately reject it based on a lack of proof of
prejudice.
  ¶21 First, Sessions is right that there is some evidence that his
counsel did not know that Batson had been extended to gender.
When the trial judge pressed counsel on the matter, counsel ap-
peared to concede his unawareness of the law on this issue. But
Sessions is wrong to equate this apparent lack of knowledge with
deficient performance. Strickland assesses the objective sufficiency


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                       Opinion of the Court

of counsel’s performance, not the subjective adequacy of counsel’s
knowledge.
  ¶22 A lawyer’s lack of knowledge is not alone enough to
amount to deficient performance. 1 The operative inquiry is
whether the “actual representation would still have been within
the range of objectively reasonable representation,” even if coun-
sel had been “aware of [the law].” Bullock v. Carver, 297 F.3d 1036,
1049 (10th Cir. 2002) (internal quotation marks omitted).
  ¶23 Sessions’s claim fails under that standard. Even if defense
counsel had known that Batson had been extended to discrimina-
tion on the basis of gender, he reasonably could still have decided
to employ his peremptory strikes in the same manner. 2 And
again, the question under Strickland is the objective reasonable-
ness of counsel’s actions, not the subjective adequacy of his know-
ledge of the law.



 1  The federal caselaw has embraced this principle quite consis-
tently. See, e.g., Bullock v. Carver, 297 F.3d 1036, 1048 (10th Cir.
2002) (stating that “an attorney’s unawareness of relevant law at
the time he made the challenged decision does not, in and of itself,
render the attorney’s performance constitutionally deficient”); Ha-
rich v. Dugger, 844 F.2d 1464, 1470 (11th Cir. 1988) (it is not enough
to merely show that counsel was ignorant of the controlling law),
overruled on other grounds by Davis v. Singletary, 119 F.3d 1471, 1482
(11th Cir. 1997).
 2  As noted below, after all, this is not a case where counsel’s er-
ror takes the form of a blatant disregard of the principles in the
Batson line of cases. Instead, the ultimate error is counsel’s failure
to articulate a gender-neutral justification for the use of a peremp-
tory challenge in circumstances where such a justification was ap-
parently available. See infra ¶¶ 29–30. Thus, we do not and need
not decide the question addressed by some courts—whether the
unlawful exercise of a peremptory challenge in blatant violation
of Batson is per se ineffective assistance under step one of the
Strickland inquiry. See Winston v. Boatwright, 649 F.3d 618, 630 (7th
Cir. 2011) (“Deliberately choosing to engage in conduct that the
Supreme Court has unequivocally banned is both professionally
irresponsible and well below the standard expected of competent
counsel.”).

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                       Opinion of the Court

  ¶24 Second, Sessions has failed to establish the objective unrea-
sonableness of counsel’s implementation of his peremptory
strikes. In light of the disturbing and violent acts that Sessions
was accused of perpetrating against his wife, trial counsel could
plausibly have concluded that women might have a tendency to
be repulsed and thus inclined against him. And under Batson,
counsel could legally have exercised his peremptory challenges
with this concern in mind—even recognizing the possibility of a
Batson objection and the potential difficulty of overcoming it—so
long as he had a neutral, nondiscriminatory justification for this
move. See infra ¶ 29. Running such a risk, moreover, could easily
be deemed to fall within the broad bounds of objectively reasona-
ble representation.
  ¶25 Sessions advocates for a rule that it is objectively unreason-
able for a lawyer to advance a legally questionable position at tri-
al. But there is no such rule under Strickland. Again, the standard
is objective reasonableness, not legal acumen. And it might some-
times be strategically understandable for counsel to advance a le-
gally questionable position at trial—to submit evidence of ques-
tionable admissibility, for example, in the hope that opposing
counsel might not object, or that any objection might be overruled.
  ¶26 On this record there is no basis for concluding that coun-
sel’s attempt to strike jurors 19 and 23 was objectively unreasona-
ble strategy. Counsel insisted that this move was based on a “gut
feeling” having nothing to do with gender. And even if that at-
tempt should have seemed likely to elicit a Batson challenge, that
would not render counsel’s attempt objectively unreasonable,
since the Batson challenge was hardly inevitable, and the trial
court’s finding of discrimination was even less so. The fact that
counsel’s use of peremptories failed doesn’t make the attempt ob-
jectively unreasonable.
  ¶27 Third, the failure to request a remedy other than reinstating
the stricken jurors was likewise not objectively unreasonable. As a
legal matter, the choice of remedies for a Batson violation is an
open question, left to the trial court’s discretion. Batson itself ac-
knowledged that any of a range of apparent remedies—including
that embraced below—each has its own strengths and weak-
nesses. Batson v. Kentucky, 476 U.S. 79, 89–100 (1986) (declining to
prescribe a particular remedy because, among other things, the
trial court is in the best position to fashion the appropriate reme-
dy). And neither the Supreme Court nor this court has prescribed
a one-size-fits-all remedy, leaving the matter instead to the discre-


                                  7
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                       Opinion of the Court

tion of the trial judge in the circumstances of each individual case.
With that in mind, we cannot say that it would be objectively un-
reasonable for trial counsel to acquiesce in a remedy that was em-
braced by the trial court and endorsed as an appropriate remedy
under Batson—of reseating the jurors deemed improperly stricken
by counsel.
  ¶28 Counsel could well have concluded that this remedy was
as good as any other and that continuing to fight the issue would
be strategically unwise. Alternatively, counsel could reasonably
have decided that a jury including jurors 19 and 23 was preferable
to an unknown jury that might be seated in further proceedings.
Either way, there is no basis for a showing of objectively deficient
performance with respect to the remedy of reseating jurors 19 and
23. See Batson, 476 U.S. at 99 n.24 (stating that one acceptable re-
medy is to “disallow the discriminatory challenges and resume
selection with the improperly challenged jurors reinstated on the
venire”).
  ¶29 That is not to say that all of Sessions’s assertions of defi-
cient performance are meritless. His last allegation of deficiency is
at least plausible. It seems hard to identify an objectively reasona-
ble basis for counsel’s failure to provide a neutral, nondiscrimina-
tory basis for striking jurors 19 and 23 when asked by the trial
judge. Where such a basis seems apparent on the record, see supra
¶¶ 6–7, it may be objectively unreasonable for counsel to fail to
articulate it.
  ¶30 The State’s principal response is the assertion that counsel
cannot be faulted for mere failure to take careful notes at trial. On
that narrow point we agree: A trial lawyer might reasonably de-
cide to keep his eyes focused on members of the venire instead of
buried in a notebook. But that isn’t really the question. The prob-
lem is not just that counsel failed to take notes; it is that he made
no attempt to offer a neutral justification for apparently discrimi-
natory peremptories in the face of further questioning by the court
and in light of an apparent basis for a response in the record. It is
at least arguable that a reasonably competent attorney under these
circumstances would expect a Batson challenge and thus be pre-
pared to give a neutral justification—if not from his notes then
from his memory.




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                       Opinion of the Court

                            2. Prejudice
  ¶31 That said, Sessions’s ineffective assistance claim fails under
the prejudice prong of the Strickland test. This prong requires a
showing of “a reasonable probability that, but for counsel’s [al-
leged] errors, the result of the proceeding would have been differ-
ent.” State v. Munguia, 2011 UT 5, ¶ 30, 253 P.3d 1082 (internal qu-
otation marks omitted). In a case like this one involving alleged
ineffective assistance in a failure to provide neutral grounds for
the exercise of a peremptory challenge, prejudice is defined in
terms of proof of “actual juror bias.” State v. King, 2008 UT 54,
¶ 39, 190 P.3d 1283.
  ¶32 Sessions claims to have established prejudice on either of
two grounds: (a) under a supposed presumption of prejudice un-
der this court’s decisions in Randle v. Allen, 862 P.2d 1329 (Utah
1993), and Carrier v. Pro-Tech Restoration, 944 P.2d 346 (Utah 1997),
or as a matter of federal law; and (b) based on evidence of actual
prejudice. We find no legal basis for a presumption of prejudice
and no evidence of actual juror bias, and thus affirm.
                      (a) Presumed Prejudice
  ¶33 Our decisions in Randle and Carrier established a prophy-
lactic presumption of prejudice as an element of the standard of
proof under Utah Rule of Civil Procedure 47. But those decisions
are rooted in an interpretation of our rules of procedure. They
have no application to the federal law question of the elements of
a claim for ineffective assistance of counsel. And on that matter of
federal law, we are bound by federal precedent; we have no li-
cense to override that precedent with an extension of the above-
cited caselaw.
  ¶34 In Randle, a civil action for wrongful death with one plain-
tiff suing three defendants, the trial court allocated each party
four peremptory challenges under Utah Rule of Civil Procedure
47. 862 P.2d at 1332. 3 The ultimate allocation was effectively un-
equal because the defense side ended up with a total of twelve
challenges while the plaintiff was left with only four. And the

 3  The trial court permitted each party to exercise three chal-
lenges under rule 47(e) (the maximum allowable under that rule),
and one challenge against the entire panel under rule 47(b), which
reserves an additional challenge for alternate jurors. Id.

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                        Opinion of the Court

plaintiff objected, asserting that codefendants should be treated as
a single party under rule 47 except in case of substantial contro-
versy among them. We agreed. See id. at 1333. In so doing, we pre-
sumed that, in the circumstances of the Randle case, the disparity
in challenges was prejudicial. Id. (explaining that while a disparity
between sides in the number of peremptory challenges does not
itself establish prejudice, the size of the disparity was significant
enough to sustain a presumption of prejudice). That holding,
however, was purely a matter of interpretation of rule 47; it had
nothing to do with the federal question of the elements of a claim
for ineffective assistance of counsel.
  ¶35 The Carrier case was similar. In that case the court of ap-
peals granted a personal injury plaintiff a new trial based on a
twelve-to-four disparity between defendants’ and plaintiff’s pe-
remptory challenges. Carrier, 944 P.2d at 349, 354. We affirmed,
finding no substantial controversy between codefendants and
concluding that the disproportionate allotment of peremptory
challenges gave rise to a presumption of prejudice. See id. As in
Randle, however, we did so within the context of rule 47.
  ¶36 That context makes all the difference. Randle and Carrier
pertain to the applicable standard of proof under a state rule of
procedure. In interpreting rule 47, it was our prerogative to con-
clude that harm is presumed upon a threshold showing of a dis-
proportionate allocation of peremptory challenges.
  ¶37 But that does not hold for the standard of proof for claims
of ineffective assistance of counsel. That is a matter of federal law,
on which we are bound to follow Supreme Court precedent.4 And
the presumption of prejudice advanced here by Sessions is in-
compatible with the structure and analysis of the Supreme Court’s
decision in Strickland.




 4 The unequal allotment of peremptory challenges in Randle and
Carrier is also distinguishable from the circumstances of this case
on a factual ground: The allotment of peremptory challenges in
Randle and Carrier was unequal from the outset, while in this case
the inequality came about only as a result of counsel’s actions in
the course of trial. See Randle, 862 P.2d at 1332; Carrier, 944 P.2d at
349.

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                        Opinion of the Court

  ¶38 As we noted in Parsons v. Barnes, “[t]he requirement that a
defendant affirmatively prove prejudice [under Strickland] is
grounded in the very purpose of the Sixth Amendment right to
counsel—‘to ensure that a defendant has the assistance necessary
to justify reliance on the outcome of the proceeding.’” 871 P.2d
516, 522 (Utah 1994) (quoting Strickland, 466 U.S. at 691-92). Thus,
at Strickland step two, the focus is on prejudice in terms of the ul-
timate outcome of the proceeding. The analysis, in other words, con-
cerns the question whether a “‘conviction or . . . sentence resulted
from a breakdown in the adversary process that renders the result
unreliable.’” Id. (quoting Strickland, 466 U.S. at 687) (emphasis in
Parsons).
  ¶39 Strickland also highlighted circumstances in which such
prejudice may be presumed: (1) cases involving “[a]ctual or con-
structive denial of the assistance of counsel,” (2) cases in which
the government has “interfere[ed] with counsel’s assistance,” and
(3) cases where counsel acted with “an actual conflict of interest.”
See Strickland, 466 U.S. at 692.Yet even these exceptions were
rooted in a consideration of the ultimate effect on the outcome of
the underlying proceeding. As to the first two exceptions, the
Strickland court emphasized that “[a]ctual or constructive denial
of the assistance of counsel altogether is legally presumed to re-
sult in prejudice” because “[p]rejudice in these circumstances is so
likely that case-by-case inquiry into prejudice is not worth the
cost.” Id. (emphasis added). And as to the third exception, al-
though the court emphasized that a breach of a duty of loyalty in-
volves “the most basic of counsel’s duties,” it still concluded that
“[p]rejudice is presumed only if the defendant demonstrates that
counsel ‘actively represented conflicting interests’ and that ‘an actual
conflict of interest adversely affected his lawyer’s performance.’” Id.
(quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348 (1980) (emphases
added)).
  ¶40 Notwithstanding the above, Sessions notes that Strickland
was decided two years before Batson. And he urges an interpreta-
tion of Strickland that extends its conception of presumed preju-
dice to encompass counsel’s advancement of a trial strategy con-
travening the principles of Batson. In so doing he cites recent deci-
sions embracing that concept, chief among them the Seventh Cir-




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cuit’s decision in Winston v. Boatwright, 649 F.3d 618, 632 (7th Cir.
2011). 5
  ¶41 We reject Sessions’s argument on two grounds. First, the
cited authority is easily distinguishable. The cases relied on by
Sessions involved a verdict rendered by a tainted jury—a jury as-
sembled in violation of the equal protection principles recognized
in Batson. 6 This case is different. It arises in a very different cir-
cumstance, in which the alleged Batson violation was objected to
by opposing counsel and remedied by the trial court. See supra
¶¶ 9–11. So even if an unremedied Batson violation could be
viewed as sufficiently “structural” to sustain a presumption of
prejudice under Strickland, 7 that principle would not apply here.
At most the question here is the impact of the loss of a procedural
right to a peremptory challenge, and the loss of that right is not a
“structural” problem “affecting the framework within which the
trial proceeds,” or “transcend[ing] the criminal process.” Arizona
v. Fulminante, 499 U.S. 279, 310–11 (1991) (internal quotation


 5 See also Ex parte Yelder, 575 So. 2d 137, 139 (Ala. 1991); In re
Commitment of Taylor, 679 N.W.2d 893, 899–900 (Wis. Ct. App.
2004).
 6 See Winston, 649 F.3d at 623–24 (noting that the claim of ineffec-
tive assistance in that case arose out of defense counsel’s acts in
using peremptory challenges to strike men from the jury—
“because he thought that the female jurors would be more critical
of the victim”); Yelder, 575 So. 2d at 139; Taylor, 679 N.W.2d at
899–900.
 7 See Winston, 649 F.3d at 628 (adopting a concept of presumed
prejudice encompassing “structural errors”—those “persist[ing]
throughout the proceeding and relat[ing] to the framework in
which a trial proceeds”); Neder v. United States, 527 U.S. 1, 8
(1999)). But see United States v. Kehoe, 712 F.3d 1251, 1255 n.4 (8th
Cir. 2013) (noting the Eighth Circuit’s disagreement with the
Winston formulation); Young v. Bowersox, 161 F.3d 1159, 1161 (8th
Cir. 1998) (refusing to adopt a “structural” error framework, limit-
ing presumed prejudice to the general kinds of presumed preju-
dice identified in Strickland, and otherwise holding that “an error
by counsel does not warrant setting aside the judgment of a crim-
inal proceeding . . . if the error had no effect on the judgment”).

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marks omitted). As the United States Supreme Court “repeatedly
has stated,” “the right to a peremptory challenge may be withheld
altogether without impairing the constitutional guarantee of an
impartial jury and a fair trial.” Georgia v. McCollum, 505 U.S. 42, 57
(1992). Thus, even if an unremedied Batson violation might con-
ceivably be deemed to sustain a presumption of prejudice under
Strickland, the mere loss of a peremptory challenge as a remedy
for a Batson violation is a different matter altogether.
  ¶42 Second, Sessions fails to carry his burden of making the
case for presumed prejudice under controlling precedent, particu-
larly State v. Arguelles, 921 P.2d 439 (Utah 1996). In Arguelles we
declined to extend the Strickland categories of presumed prejudice
to a case in which counsel had prevented a defendant from exer-
cising the right to testify in his own behalf at trial. Id. And in so
doing we rejected the analysis set forth in United States v. Butts,
630 F. Supp. 1145 (D. Me. 1986). Butts held that the interference
with a client’s right to testify was a matter too pervasive and fun-
damental to be subjected to a requirement of proof of actual pre-
judice under Strickland. Id. at 1148. It concluded, specifically, that
such interference “is troublesome not just for its possible impact
on the reliability of the verdict,” but for affecting “the very fair-
ness of the trial process itself by resulting in the Defendant being
deprived of the opportunity to testify,” a matter of “great inherent
significance” that the court deemed a “miscarriage of justice re-
quiring the granting of a new trial.” Id. at 1147–49.
  ¶43 We rejected the Butts formulation. In so doing, we reite-
rated the categories of presumed prejudice identified in Strickland
while also noting the possibility of extending those categories to
circumstances where it is “unnecessary” to “pursue a case-by-case
inquiry to weigh actual prejudice.” Arguelles, 921 P.2d at 442 (in-
ternal quotation marks omitted). And we declined to extend these
principles of presumed prejudice to a case involving counsel’s in-
terference with a defendant’s right to testify. Id. We held, specifi-
cally, that Arguelles had “not argue[d] that any of these circums-
tances exist[ed] in the present case,” but instead had relied only
on the framework of the Butts opinion. Id.
  ¶44 Sessions’s argument fails on similar grounds. Under Strick-
land and Arguelles, the defendant must make a showing of either
an actual effect on the outcome of the underlying case or a basis
for a presumption of prejudice like that recognized in the courts’

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                        Opinion of the Court

opinions—such as a high likelihood of an impact on the result
with an attendant difficulty of case-by-case analysis, or an active
conflict of interest adversely affecting a lawyer’s performance. See
Arguelles, 921 P.2d at 442. 8
  ¶45 Sessions’s claim to presumed prejudice fails under this
standard. Like Arguelles, Sessions has “not argue[d] that any of
these circumstances exist in the present case.” Arguelles, 921 P.2d
at 442. Thus, he offers no basis for deeming the remedial loss of
his peremptory challenges an event “so likely” to affect outcomes
that “case-by-case inquiry into prejudice is not worth the cost.”
Strickland, 466 U.S. at 692. And he likewise provides no reason to
conclude that his counsel’s actions were comparable to an active
conflict of interest affecting his lawyer’s performance. 9 We accor-
dingly conclude that Sessions has failed to carry his burden of es-
tablishing any basis for presumed prejudice in the remedial loss of
two of his peremptory challenges.



 8  See also Jackson v. Herring, 42 F.3d 1350, 1361 (11th Cir. 1995)
(concluding that the prejudice inquiry under Strickland asks
whether there is a reasonable probability that “the result of the
proceeding would have been different,” and not simply whether
errors “infect[ed] [the] entire trial with error of constitutional di-
mensions” (internal quotation marks omitted)); Strong v. Roper,
2011 WL 2600241, at *15 (E.D. Mo. 2011) (holding that the failure
to raise Batson objection does not entitle defendant to presumption
of prejudice under Strickland, and that he must instead show “rea-
sonable probability that the outcome of the trial would have been
different” (internal quotation marks omitted)).
 9  This is not to say that we read Strickland’s categories of pre-
sumed prejudice as a closed universe. We do not. And on that
point, we reject a handful of decisions that appear to read Strick-
land in this way. See, e.g., Glover v. Miro, 262 F.3d 268, 275 (4th Cir.
2001) (stating that absent presumed prejudice under one of the
three circumstances—in this case, denial of counsel—“defendants
must show actual prejudice under Strickland”). But we do require
more than a general invocation of the concept of presumed preju-
dice. It is Sessions’s burden to identify a basis for extending the
Strickland categories of presumed prejudice to this case, and he
has failed to carry that burden.

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                        Cite as: 2014 UT 44
                       Opinion of the Court

                    (b) Evidence of Actual Bias
  ¶46 Sessions contends that actual prejudice exists because ju-
rors 19 and 23 were “objectionable” and “bias[ed].” As evidence,
Sessions cites juror 19’s statements during voir dire that she had
previously served on a criminal assault jury fifteen years earlier,
and that her niece was once sexually assaulted. He also points to
juror 23 raising her hand when asked during voir dire whether
she felt the testimony of law enforcement was “more or less be-
lievable than anybody else.” And he notes that juror 23 indicated
that she watched “Law and Order type shows,” and felt the de-
fendant in those shows was generally guilty.
  ¶47 This evidence does not establish actual bias. None of the
cited statements constitute grounds for removal for cause. At
most they might suggest a potential for bias, or a ground for de-
fense counsel to prefer that these jurors not be seated. But that is
not enough. See King, 2008 UT 54, ¶¶ 19, 47 (holding that “poten-
tial bias” does not constitute prejudice; defendant must “show
that his counsel’s actions prejudiced him because those actions
allowed the seating of an actually biased juror”).
  ¶48 Ultimately, both jurors asserted that they could render a
“true and correct,” “honest,” and “fair and impartial” verdict. 10
Such assertions of impartiality do not by themselves foreclose a
finding of prejudice. See State v. Wach, 2001 UT 35, ¶ 33, 24 P.3d
948. But Sessions’s failure to provide any contrary evidence does.
Neither juror was questioned further by defense counsel. And
when they were questioned further by the trial court, it apparent-
ly was convinced of their impartiality. See id. ¶¶ 29–31 (potential
bias can be rebutted by questioning from the court). Absent any
indication from these jurors’ statements or conduct during or after
their service raising doubts about their impartiality, we see no ba-
sis for concluding that Sessions has established prejudice by
showing actual bias. 11 And we affirm the rejection of Sessions’s
ineffective assistance claim on that basis.


 10 See Irvin v. Dowd, 366 U.S. 717, 723 (1961) (holding that a juror
is impartial “if the juror can lay aside his impression or opinion
and render a verdict based on the evidence presented in court”).
 11 Moreover, the Supreme Court has found no actual bias where
the evidence of bias was much stronger than that presented here.

                                 15
                          STATE v. SESSIONS
                        Opinion of the Court

                            B. Plain Error
  ¶49 To prevail on his plain error claim, Sessions must establish
that the trial court committed an error, that the error was obvious,
and that the error was prejudicial. See State v. Dunn, 850 P.2d 1201,
1208 (Utah 1993). Sessions asserts plain error in the remedy in-
voked by the trial court for the Batson violation. Specifically, he
claims plain error in the reinstatement of jurors 19 and 23 and in
the failure to restore the lost peremptory challenges.
  ¶50 Sessions has not met his burden of establishing any one of
the required elements of plain error, let alone all three. First, there
was no error (obvious or otherwise) because the trial judge chose
a legally appropriate remedy in reinstating jurors 19 and 23 and in
declining to restore Sessions’s lost challenges. Sessions cites no
case embracing a single, one-size-fits-all remedy for violations of
Batson. The case law, in fact, is to the contrary. See supra ¶ 27. Re-
cognizing that any of a range of remedies each presents both up-
sides and downsides, the courts generally have left the matter to
the discretion of the trial court on a case-by-case basis. See United
States v. Walker, 490 F.3d 1282, 1295 (11th Cir. 2007) (declining to
mandate a particular remedy because trial courts are in the best
position to fashion a remedy in a particular case). We reinforce
that conclusion here. We find no error—and certainly no clear er-
ror—in the decision to restore jurors who were discriminatorily
stricken from the jury and in the failure to restore the lost peremp-
tories.12

See Patton v. Yount, 467 U.S. 1025, 1029–30 (1984) (holding that tri-
al court did not commit manifest error by finding jurors impartial,
despite eight jurors admitting that, due to pretrial publicity, “at
some time [prior to trial] they had formed an opinion as to [de-
fendant’s] guilt”); see also United States v. Pennell, 737 F.2d 521,
529–30 (6th Cir. 1984) (holding that there was inadequate evidence
of actual bias where five jurors received threatening, late-night
phone calls telling them to find the defendant guilty, and one ju-
ror stated that the phone calls might influence her judgment in the
case). If the evidence in Patton and Pennell did not establish actual
bias, then the evidence here, without more, certainly doesn’t.
 12 The notion of restoring discriminatorily exercised peremptory
challenges seems to present a particularly troubling downside—of
eliminating any cost of discrimination in jury selection, and thus

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                        Opinion of the Court

  ¶51 Second, Sessions has not established prejudice. He has
shown that he lost two peremptory challenges, but that alone is
not enough to establish prejudice. “[T]here is no freestanding con-
stitutional right to peremptory challenges,” and thus the loss of
such a challenge is “not a matter of federal constitutional con-
cern.” Rivera v. Illinois, 556 U.S. 148, 157 (2009). Thus, the mere loss
of a peremptory challenge is not a “structural error”—a denial
sustaining a presumption of harm. See id. at 160–61. Such errors
are established “only when the error necessarily render[s] a crim-
inal trial fundamentally unfair or an unreliable vehicle for deter-
mining guilt or innocence.” Id. at 160 (internal quotation marks
omitted). And the denial of a state-provided peremptory chal-
lenge “does not . . . constitute an error of that character.” Id. at 161.
  ¶52 Thus, to establish prejudice for the loss of his peremptories,
Sessions would have to prove actual prejudice. And he would
have to do so in the same manner described above in connection
with his ineffective assistance claim—by establishing that an ac-
tually biased juror sat on the panel that convicted him. That he
has failed to do, for reasons detailed above.
  ¶53 Sessions’s plain error claim therefore fails on all three ele-
ments, as he has not established error, has not proven that any
such error was obvious, and has not proven prejudice. We accor-
dingly affirm.
                          ——————




of establishing a perverse incentive going forward. See Peetz v.
State, 180 S.W.3d 755, 760–61 (Tex. App. 2005) (declining to restore
lost peremptory strikes because it would “foster greater discrimi-
nation” by providing “no consequence for [discriminatory]
strikes.”). Although we do not foreclose the possible viability of
this remedy in appropriate circumstances, we cannot possibly
find clear error in the rejection of that remedy in this case.

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