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

                                                                            FILED
                                                                         February 6, 2008

                                       No. 07-20401                   Charles R. Fulbruge III
                                                                              Clerk

LANCE GERARD BIAGAS

                                                  Petitioner-Appellee
v.

KIM VALENTINE, Interim Director Harris County Department of
Community Supervision and Corrections

                                                  Respondent-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. H-06-CV-668



Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellee Lance Biagas petitioned the district court for a writ of
habeas corpus, asserting that his state court trial and conviction violated his
constitutional right to effective assistance of counsel. The district court granted
Biagas relief on that basis as well as on the alternative basis of judicial error by
the state trial court. Respondent-Appellant Kim Valentine appeals the district
court’s grant of habeas relief, insisting, inter alia, that Biagas was not prejudiced


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                     No. 07-20401

by his defense counsel’s performance and that the district court erred by sua
sponte recognizing judicial error as an alternative ground for relief. We affirm
the district court’s grant of Biagas’s petition on the basis that he was denied
effective assistance of counsel.
                          I. FACTS AND PROCEEDINGS
      This case centers on a series of failures in the voir dire process that
resulted in Victor Gamboa’s presence on the jury that convicted Biagas. At the
time of Biagas’s trial, Gamboa was a Harris County Sheriff’s Deputy. Harris
County was the victim of the criminal scheme in which Biagas allegedly took
part,1 and the investigators, prosecutors, and two of the witnesses who testified
against Biagas were Harris County officials. During voir dire, Biagas’s defense
counsel Reginald McKamie asked Gamboa whether he thought that “all sheriffs
or all policemen tell the truth all the time.” Gamboa responded, “Yes. They
made an oath.” When asked whether he would believe Officer McAnulty—a
Harris County law enforcement officer scheduled to testify at Biagas’s
trial—over Lance Biagas, Gamboa replied, “I'm going to be partial,” and then
clarified, “I'm going to believe [Officer McAnulty].” McKamie then asked the
jury pool whether any of them believed that a police officer’s word was superior
to anyone else’s, and three others responded affirmatively. The state trial judge
then stated, “[I]f you really in your heart believe that [police officers are] entitled
to more believability than any other person, then you certainly should not sit on
the jury.” At the conclusion of McKamie’s questioning, he and the prosecutor
discussed and then submitted to the trial judge the names of their agreed-on
strikes for cause, which list did not include Gamboa. The trial judge and counsel
then repaired to chambers, where individual jurors theretofore challenged for
cause (but who had not been agreed to by the parties) were called in for further


      1
       Biagas was alleged to be one of several conspirators in a scheme to defraud Harris
County. He was tried and convicted for felony theft in Texas state court.

                                           2
                                  No. 07-20401

questioning outside the presence of the jury pool. Gamboa was not called into
chambers or challenged by either party.          Notably, McKamie challenged
prospective jurors Krumlauf and Lemer, who, like Gamboa, had expressed bias
in favor of law enforcement testimony. The court ultimately granted McKamie’s
challenge of Krumlauf but denied that of Lemer after Lemer stated that she
would wait to hear a police officer’s testimony before determining whether the
officer was credible.
      Following the in-chambers voir dire and the resolution of the challenges
for cause, both parties submitted their peremptory strikes; McKamie used one
of his ten on Lemer but he did not strike Gamboa. Thereafter, the court
instructed the clerk to name the jury, but the clerk mistakenly called thirteen
jurors into the box, rather than twelve. Gamboa was the twelfth of the thirteen
jurors called.
      When the jurors came forward—but before anyone realized that one too
many had been called—the court asked the parties whether they were satisfied
with the seating of the jury. At that time, McKamie requested to approach and,
on reaching the bench, said, “Your Honor, there was an oversight. I thought
[Gamboa] had been stricken for cause.” McKamie elaborated, “[Gamboa’s] a
police officer. He testified that he would have police officers ahead of anybody
else; and I thought he had been stricken for cause, Your Honor.” The trial judge
responded, “I’m sorry. I can’t—I can’t do anything about it.”
      Following this exchange, the bailiff realized that thirteen jurors had been
called, and the trial judge then excused the juror who was mistakenly called.
Once this confusion was resolved—but before the jury was sworn and the
remainder of the pool was excused—McKamie reiterated his oversight, stating:
      Your Honor, before the jury is sworn in, I would like to object to
      [Gamboa], the officer. He has clearly stated that he is biased toward
      police officers, and it was an oversight. When we were doing it, I
      thought he was on our list of agreed strikes. I think it will result in


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                                       No. 07-20401

       an impartial [sic] jury that will be biased against my client and I
       move that we have a mistrial . . . .

The court overruled the motion, stating that it had “called out the numbers that
we agreed upon four different occasions, and [Gamboa’s] never on my list as to
be called up for cause or for any other reason he was not stricken, so it's
overruled, Counsel.”2
       At trial, the State presented the testimony of two Harris County law
enforcement officers: Captains Jesse Mack and Dan McAnulty. The jury, which
included Gamboa, convicted Biagas of felony theft. Biagas retained a new
attorney and timely filed a motion for new trial, arguing that (1) he was denied
the opportunity to replace a biased juror and (2) he was denied effective
assistance of counsel when McKamie failed properly to challenge Gamboa. In
support of his motion, Biagas presented the affidavit of McKamie, who admitted
that he mistakenly believed that Gamboa was on the agreed for-cause strike list
and that he would have challenged Gamboa but for that mistake. The trial court
denied Biagas’s motion without an opinion, and the Texas Court of Appeals
affirmed his conviction.         In rejecting Biagas’s claim of judicial error, the
appellate court noted that (1) the trial court was within its discretion to deny
Biagas’s request for a mistrial, and (2) Biagas’s failure to challenge Gamboa for
cause deprived the trial court of an opportunity to assess whether he was
“unequivocally biased.”3 And, in rejecting Biagas’s ineffective assistance claim,
the appellate court concluded that the trial court could have found that
McKamie’s affidavit was not credible and thereby rejected McKamie’s contention




       2
         Gamboa’s juror number was “38.” Counsel and the court referred to him by this
designated number during their exchanges detailed above; however, for purposes of clarity in
this opinion, we have identified him by his name and not his number.
       3
           Biagas v. Texas, 177 S.W.3d 161, 169 (Tex. App.–Houston 2005).

                                              4
                                        No. 07-20401

that he made a mistake.4 Moreover, the appellate court refused to concede that
Biagas was automatically harmed by Gamboa’s presence on the jury.5 Following
the affirmation of his conviction, Biagas’s petition for discretionary review was
denied by the Texas Court of Criminal Appeals.
      Having exhausted his recourse in state court, Biagas filed a federal
petition for a writ of habeas corpus, asserting that his Sixth Amendment right
to effective assistance of counsel had been violated. The district court agreed
that Biagas was denied effective assistance of counsel and held that the state
court decision upholding his conviction could not be sustained. In addition, the
district court concluded that the trial judge had failed to “ferret out” the taint of
juror bias without reasonable justification and that such failure amounted to
constitutional error entitling Biagas to habeas relief. The district court granted
Biagas’s petition on these two grounds and directed the State of Texas to grant
him a new trial or release him. Valentine timely filed a notice of appeal.
                                       II. ANALYSIS
A.    Standard of Review
      As this action was brought under 28 U.S.C. § 2254, our review is limited
by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).5
Under the AEDPA, we cannot grant habeas relief “unless the state court
proceeding resulted in ‘a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court.’”6 “A merely incorrect state court decision is not sufficient




      4
          Id. at 171.
      5
          Id. at 172.
      5
          Virgil v. Dretke, 446 F.3d 598, 604 (5th Cir. 2006).
      6
          Id. (quoting 28 U.S.C. § 2254(d)(1)).

                                                  5
                                         No. 07-20401

to constitute an unreasonable application of federal law; rather, the decision
must be objectively unreasonable.”7
B.     Right to an Impartial Jury
       “Our criminal justice system rests firmly on the proposition that before a
person’s liberty can be deprived, guilt must be found, beyond a reasonable doubt,
by an impartial decisionmaker. The Sixth Amendment provides in part: ‘In all
criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have
been committed.’”8 “Put simply, ‘[T]he right to jury trial guarantees to the
criminally accused a fair trial by a panel of impartial, “indifferent” jurors.’”9
Moreover, we are “mindful that certain errors in the trial process are so basic to
a fair trial as to defy harmless error review. It is clearly established that the
Supreme Court views the denial of the right to an impartial decisionmaker to be
such an error that taints any resulting conviction with constitutional
infirmity.”10
C.     Effective Assistance of Counsel
       The district court held that Biagas was denied effective assistance of
counsel because of McKamie’s failure to challenge Gamboa either peremptorily
or for cause. In reaching its decision, the district court concluded that Virgil v.
Dretke11 controlled its analysis. Valentine argues that Biagas fails to meet




       7
        Id. (citing Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004); Young v. Dretke, 356
F.3d 616, 623 (5th Cir. 2004)).
       8
           Id. at 605 (quoting U.S. CONST. amend. VI).
       9
           Id. (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)).
       10
            Id. at 607 (internal quotations omitted).
       11
            446 F.3d 598.

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                                        No. 07-20401

Strickland v. Washington’s12 two-pronged test for establishing ineffective
assistance of counsel, insisting, inter alia, that Biagas’s defense was not
prejudiced by McKamie’s conduct because any alleged bias was irrelevant to the
outcome and reliability of the proceedings. Moreover, in attacking the district
court’s decision, Valentine attempts to distinguish Virgil. We agree with the
district court that Virgil controls our analysis. And, in accordance with our
decision in Virgil, we hold that the district court properly granted Biagas relief
on the basis of ineffective assistance of counsel.
      To succeed on a charge of ineffective assistance of counsel in state court,
a petitioner must satisfy both prongs of Strickland’s two-part test by
demonstrating that (1) counsel’s performance was deficient and (2) that deficient
performance caused actual prejudice to the petitioner’s defense.13 To prove
deficient performance, “a petitioner must demonstrate that counsel’s
representation fell below an objective standard of reasonableness.”14                       In
evaluating counsel’s performance, we apply “the strong presumption that
counsel      performed      adequately      and    exercised        reasonable     professional
judgment.”15 “[A] ‘conscious and informed decision on trial tactics and strategy
cannot be the basis of constitutionally ineffective assistance of counsel unless it
is so ill chosen that it permeates the entire trial with obvious unfairness.’”16
After establishing that counsel’s performance was deficient, the petitioner must
also prove that such performance caused actual prejudice to his defense. To
demonstrate prejudice, a petitioner “must show that there is a reasonable


      12
           466 U.S. 668 (1984).
      13
           Id. at 687.
      14
           Virgil, 446 F.3d at 608 (internal quotations omitted).
      15
           Id. (quoting Titsworth v. Dretke, 401 F.3d 301, 310 (5th Cir. 2005)).
      16
           Id. (quoting Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir. 2004)).

                                               7
                                         No. 07-20401

probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”17 Moreover, “Strickland’s
prejudice inquiry is process-based: Given counsel’s deficient performance, do we
have confidence in the process afforded the criminally accused?”18                      “‘[T]he
ultimate focus of the inquiry must be on the fundamental fairness of the
proceeding whose result is being challenged.’                 We focus on ferreting out
‘unreliable’ results caused by ‘a breakdown in the adversarial process that our
system counts on to produce just results.’”19
       In Virgil, the defendant was convicted by a jury that included two jurors,
Roger Sumlin and Thomas Sims, who had expressly stated that they would be
unable to be fair and impartial.20 We held that counsel’s failure to challenge for
cause or peremptorily after Sumlin and Sims had offered unchallenged
statements of bias constituted deficient performance under Strickland.21 In
reaching this conclusion, we observed that defense counsel’s affidavit—which he
submitted in an effort to justify his conduct and decisionmaking during voir
dire—did not explain why he failed to challenge the two jurors for cause or why




       17
            Id. at 611 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).
       18
            Id. at 612.
       19
            Id. (quoting Strickland, 466 U.S. at 696).
       20
         Id. at 609-10. Both jurors declared that they were less likely to believe a witness with
a prior criminal conviction, which the defendant had. In addition, Sumlin “stated that his
relationship with law-enforcement officers would preclude him from serving as an impartial
juror.” Id. at 609. Sims also remarked that “his mother’s mugging was ‘weighing’ on him as
to whether he could be partial or impartial, finally concluding that he could not be ‘fair and
impartial.’” Id. at 609-10.
       21
            Id. at 610.

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                                     No. 07-20401

he allowed them to serve on the jury, given their express bias.22 We also noted
that defense counsel had challenged two other prospective jurors who had
offered similar testimony to Sumlin and that neither the State nor defense
counsel had expressed any reason why the other two jurors should be struck
while Sumlin should not.23 Given these inconsistencies, we concluded that the
affidavit lacked “any suggestion of a trial strategy for not using peremptory or
for-cause challenges on Sumlin and Sims.”24
      Here, the juror in question, Gamboa, stated during voir dire that he was
biased in essentially the same manner as had the jurors in Virgil. Specifically,
Gamboa stated that he was “going to be partial” and that he would believe the
testimony of a law enforcement officer over that offered by Biagas. Despite this
admission, McKamie, like defense counsel in Virgil, failed to challenge Gamboa
for cause or use a peremptory challenge to keep him off of the jury.25 Rather
than attempt to justify his failure to challenge Gamboa—as did defense counsel
in Virgil—McKamie admitted in his affidavit that his actions were the result of
an oversight and not the product of strategic decisionmaking; an admission that
was contrary to his own interests and was not contradicted by the State.
Moreover, the record supports McKamie’s contention that his failure to challenge
Gamboa was a mistake of omission rather than a calculated choice. As soon as
the jurors were announced, McKamie objected to the trial judge and moved for
a mistrial. We have recognized the distinction between strategic judgment calls

      22
         Id. In his affidavit, defense counsel stated that he “struck all persons whom [he]
thought had some type of bias, prejudice or issue based upon [his voir dire].” Id.
      23
           Id.
      24
           Id.
      25
         Whether McKamie used all of his peremptory challenges on other venirepersons is
of no consequence to us. Given the record on appeal and McKamie’s own admission (evident
from his affidavit and in-court statements), the fact remains that he could have—and should
have—used one of his ten strikes on Gamboa.

                                            9
                                        No. 07-20401

and plain omissions,26 and we have emphasized that we are “not required to
condone unreasonable decisions parading under the umbrella of strategy, or to
fabricate tactical decisions on behalf of counsel when it appears on the face of the
record that counsel made no strategic decision at all.”27 Accordingly, we conclude
that the state appellate court’s speculation that the trial court could have
concluded that McKamie made a tactical decision not to challenge Gamboa is not
supported—and, in fact, is contradicted—by the record. Therefore, in accordance
with our precedent in Virgil, as well as with counsel’s own admission, we
conclude that McKamie’s performance was deficient and hold that the state
court decision to the contrary was unreasonable.
      Furthermore, we conclude that Biagas was prejudiced by McKamie’s
deficient performance.          We observed in Virgil that allowing Sumlin and
Sims—who expressly stated that they were unable to be fair and impartial—to
sit on the jury violated the law’s mandate that a juror be “willing to ‘lay aside his
impression or opinion and render a verdict based on the evidence presented in
court.’”28    And, given the importance of an impartial jury, we deemed the
outcome of Virgil’s trial to be “unreliable because of a breakdown in the
adversarial process that our system counts on to produce just results.”29
Accordingly, we held that Virgil’s defense was prejudiced and that the state
court decision to the contrary could not stand.
      Valentine attempts to distinguish Virgil (and the district court’s finding
of prejudice) by asserting that Gamboa’s bias differed from that of Sumlin and
Sims. Valentine takes the position that Sumlin and Sims were biased against


      26
           See Lloyd v. Whitley, 977 F.2d 149, 158 (5th Cir. 1992).
      27
           Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999).
      28
           Virgil, 446 F.3d at 613 (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)).
      29
           Id. at 613 (quoting Strickland v. Washington, 466 U.S. 668, 696 (1984)).

                                              10
                                            No. 07-20401

the defendant, as each stated that they were less likely to believe a person with
a prior criminal conviction. In contrast, she maintains that Gamboa is biased,
not against Biagas, but in favor of law enforcement testimony. In addition, she
contends that Gamboa’s alleged bias had no influence on the outcome of the trial
because the jury was never called on to assess the credibility of the officers’
testimony. Valentine’s effort to distinguish Gamboa’s bias from that of the
jurors in Virgil is without merit under the circumstances: regardless whether a
juror favors one witness or disfavors another, the fact remains that the juror is
partial. Moreover, as jurors may not testify about their deliberations,30 the effect
that Gamboa’s presence on the jury had on the ability of the remaining jurors to
consider and evaluate the testimony and evidence will never be known. Given
this uncertainty, Biagas’s conviction is unworthy of confidence and, as such,
constitutes a failure in the adversarial process. “‘The jury box is a holy place.’
Our criminal justice system is predicated on the notion that those accused of
criminal offenses are innocent until proven guilty and are entitled to a jury of
persons willing and able to consider fairly the evidence presented in order to
reach a determination of guilt or innocence.”31 Biagas was deprived of such a
jury and thereby prejudiced by Gamboa’s presence. The state court decision
rejecting his claim of ineffective assistance of counsel was an unreasonable
application of clearly established federal law.
                                        III. CONCLUSION
          In allegiance to our decision in Virgil v. Dretke, we hold that Biagas was
denied effective assistance of counsel. The district court’s grant of habeas corpus


          30
         See TEX. R. EVID. 606(b) (“[A] juror may not testify as to any matter or statement
occurring during the jury’s deliberations, or to the effect of anything on any juror’s mind or
emotions or mental processes, as influencing any juror’s assent to or dissent from the verdict
or indictment.”).
          31
               Virgil, 446 F.3d at 613 (quoting United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.
1976)).

                                                   11
                                  No. 07-20401

relief is affirmed on this basis. We do not reach the district court’s alternative
basis for granting relief and, accordingly, we do not assess the propriety of the
district court’s sua sponte recognition of judicial error.
AFFIRMED.




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