     Case: 07-60483     Document: 00511073405          Page: 1    Date Filed: 04/07/2010




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

                                                  FILED
                                                                             April 7, 2010

                                       No. 07-60483                         Lyle W. Cayce
                                                                                 Clerk

FRANK ADAM SEIGFRIED

                                                   Petitioner - Appellant
v.

LAWRENCE GREER

                                                   Respondent - Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:05-cv-00370


Before REAVLEY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
        In 2002, after a jury trial, Frank Adam Seigfried was convicted of sexual
battery in Mississippi state court. Seigfried now seeks a writ of habeas corpus,
contending that his trial counsel rendered ineffective assistance of counsel by
failing to raise a for-cause or peremptory challenge to Juror 2. The Mississippi
Supreme Court and the district court denied relief. We AFFIRM.
              I. FACTUAL AND PROCEDURAL BACKGROUND
        In 2002, Seigfried was indicted for sexual battery in Harrison County,
Mississippi. The State alleged that Seigfried invited two minor teenage boys to

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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his house and performed fellatio on one of the boys. The statutory provision
under which Seigfried was prosecuted required the State to show that the sexual
act was committed without the boy’s consent. See M ISS. C ODE A NN. §
97-3-95(1)(a) (2000).
      The case proceeded to a jury trial. During voir dire, Seigfried’s trial
counsel informed the potential jurors that the trial would involve an allegation
of oral sex between two males. He then inquired whether anyone had “a problem
with sitting on a jury examining a case like this?” Juror 2 was the first juror to
respond. The following exchange took place:
      [DEFENSE]: Now, you’ve kind of heard some of the allegations in
      this case. Needless to say, this is an allegation of oral sex between
      two males. First, any of you have a problem—this is an allegation
      of a homosexual type of activity. Any of you have a problem, either
      through your past history, family, relative, close friend, someone
      that you really dislike or deplore, serving on a jury where the
      allegation is potential homosexual activity between a teenager and
      a 51-year old male? You understand the question I’m asking right
      now? I ask you to really think about this one. This is an allegation
      of homosexual activity. Any of you have a problem with sitting on a
      jury examining a case like this? Number 2. Let me just get my note
      pad. I appreciate your honesty. Anybody else? If you want to
      approach the bench, or do you?
      [JUROR 2]: I don’t have any personal—I have no relatives or
      anything like that that would effect [sic] my ability. But I’m afraid,
      and I’m not sure I can articulate why, but I think that I may have
      a problem listening to testimony in a case like that because of strong
      values that might effect [sic] how I would come to a conclusion.
      [DEFENSE]: Correct. You know, and—
      [JUROR 2]: I’m not sure if that’s what you’re looking for.
      [DEFENSE]: I will go one further question, follow-up on that. Let’s
      say consent is an issue in this case. Do you think you would have a
      hard time even considering whether acts of oral sex between two
      men could be consensual or not?
      STATE: Objection, your Honor. May we approach?

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      COURT: You may.
      (BENCH CONFERENCE NOT REPORTED)
      [DEFENSE]: Again . . . did you understand the question I was
      asking you?
      [JUROR 2]: No, I didn’t.
      [DEFENSE]: Okay. A consensual homosexual act between two men,
      that being oral sex, do you believe you would have a hard time
      weighing the facts in a case like that and examine the testimony
      and applying the law to it?
      [JUROR 2]: I honestly am not sure, but I think that I would, only
      because of my—again, I have strong values. I may have some
      preconceived opinions or ideas about what is right and wrong. So I
      don’t know. I really don’t know.
      [DEFENSE]: And—
      [JUROR 2]: I’m being as honest as I can.
      [DEFENSE]: I understand. I think the Catholic Church contends
      that homosexuality—
      STATE: Objection, your Honor.
      COURT: Just ask questions.
      [DEFENSE]: The reason that you have this is some values that you
      personally have yourself; is that correct?
      [JUROR 2]: Yes.
      [DEFENSE]: All right . . . .
Seigfried’s trial counsel successfully challenged two jurors for cause, neither of
whom was Juror 2. Seigfried’s trial counsel also exercised all six of his
peremptory challenges, but did not strike Juror 2. Juror 2 served on the jury.
      Seigfried was convicted and sentenced to twenty years imprisonment. On
direct appeal, the Mississippi Court of Appeals affirmed the conviction and the
Mississippi Supreme Court denied the petition for certiorari. Seigfried then filed
a pro se application for state habeas relief. Among numerous assertions of error,
Seigfried claimed ineffective assistance of counsel. Addressing Seigfried’s

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ineffective assistance claim in his state habeas case, the Mississippi Supreme
Court summarily held that Seigfried’s ineffective assistance claim failed both
prongs of Strickland v. Washington, 466 U.S. 668 (1984), and denied relief.
Seigfried next filed a pro se petition for federal habeas relief pursuant to 28
U.S.C. § 2254. The district court held that the state court’s decision was
objectively reasonable because its review of the record indicated that the
members of the jury all indicated that they could be fair and impartial. The
district court dismissed the petition with prejudice and denied a certificate of
appealability (COA). Seigfried appealed to this court. We granted a COA on one
issue: whether Seigfried’s trial counsel rendered ineffective assistance of counsel
by failing to raise a for-cause or peremptory challenge against Juror 2.
                               II. DISCUSSION
      We review de novo the district court’s decision as to Seigfried’s claim of
ineffective assistance of counsel. Carty v. Thaler, 583 F.3d 244, 252 (5th Cir.
2009). The claim presents a mixed question of law and fact, therefore we
“independently apply[ ] the law to the facts found by the district court, as long
as the district court’s factual determinations are not clearly erroneous.” Id. at
253. Our review is limited by the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), under which habeas relief may not be granted 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” or “a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1) and (2); Knowles v. Mirzayance, 129 S.Ct.
1411, 1418 (2009). Evaluating an ineffective assistance of counsel claim on
habeas review, “the question ‘is not whether a federal court believes the state
court’s determination’ under the Strickland standard ‘was incorrect but whether



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that determination was unreasonable—a substantially higher threshold.’”
Knowles, 129 S.Ct. at 1420 (quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). Further, “doubly deferential review . . . applies to a Strickland claim
evaluated under the § 2254(d)(1) standard” because the Strickland standard is
a general standard, which provides a state court with even greater latitude to
reasonably determine that a defendant has not satisfied that standard. Id.
(citing Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)).
        A criminal defendant enjoys a Sixth Amendment right to effective
assistance of counsel. Strickland, 466 U.S. at 685-86. Claims that counsel
rendered ineffective assistance are governed by the well-known Strickland test,
which requires that a defendant establish: (1) deficient performance by counsel
and (2) prejudice. Id. at 687. In cases of alleged ineffective assistance grounded
in the claim that counsel failed to strike a biased juror, we must also be
cognizant of the fundamental nature of the right to an impartial jury. See
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984) (“One
touchstone of a fair trial is an impartial trier of fact—‘a jury capable and willing
to decide the case solely on the evidence before it.’” (quoting Smith v. Phillips,
455 U.S. 209, 217 (1982))); see also Virgil v. Dretke, 446 F.3d 598, 607 (5th Cir.
2006).
A.      Deficient Performance
        To prove deficient performance under Strickland, “a petitioner must
demonstrate that counsel’s representation fell below an objective standard of
reasonableness under then prevailing professional norms.” Richards v.
Quarterman, 566 F.3d 553, 564 (5th Cir. 2009) (internal quotations and citations
omitted). We give substantial deference to counsel’s performance, applying a
“strong presumption that counsel performed adequately and exercised
reasonable professional judgment.” Virgil, 446 F.3d at 608. “A fair assessment



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of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689.
      1. Juror Bias
      In conducting the deficient performance analysis in the context of counsel’s
failure to strike an allegedly partial juror, a court first evaluates whether the
juror at issue was actually biased. See Virgil, 446 F.3d at 608-10. The issue of
juror bias is a factual finding. Id. at 610 n.52 (citing Patton v. Yount, 467 U.S.
1025 (1984)). Because the question of whether jurors have opinions that
disqualify them is “one of historical fact,” Patton, 467 U.S. at 1037, under
AEDPA standards this court may reject the state court’s implicit finding only
if the habeas applicant rebuts the presumption of correctness given to the state
court factual findings “by clear and convincing standards,” 28 U.S.C. §
2254(e)(1)). The district court ruled that Seigfried’s claim that his attorney was
ineffective for failing to strike biased jurors lacked merit because “[a] review of
the record indicates that the members of the jury all indicated that they could
be fair and impartial.” By ruling that Seigfried’s claim failed both prongs of
Strickland, the state court implicitly found that the juror was not biased.
      The bias determination centers on a juror’s own indication that she has
“such fixed opinions that [she] could not judge impartially respondent’s guilt,”
Patton, 467 U.S. at 1035, and whether “her views would prevent or substantially
impair the performance of his or her duties as a juror in accordance with his or
her instructions and oath,” United States v. Scott, 159 F.3d 916, 925-26 (5th Cir.
1998).
      Juror 2 stated that her “strong values . . . might effect [sic] how I would
come to a conclusion.” When asked whether she would “have a hard time



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weighing the facts in a case like [this] and [examining] the testimony and
applying the law to it,” Juror 2 answered “I honestly am not sure, but I think
that I would . . . . I really don’t know.” The voir dire statements by Juror 2 are
ambiguous. But as the Supreme Court noted in Patton v. Yount, ambiguous
testimony “is not unusual on voir dire examination.” 467 U.S. at 1039. The Court
further explained:
      It is well to remember that the lay persons on the panel may never
      have been subjected to the type of leading questions and
      cross-examination tactics that frequently are employed, and that
      were evident in this case. Prospective jurors represent a cross
      section of the community, and their education and experience vary
      widely. Also, unlike witnesses, prospective jurors have had no
      briefing by lawyers prior to taking the stand. Jurors thus cannot be
      expected invariably to express themselves carefully or even
      consistently.
Id. Although the statements made by Juror 2 hinted at possible bias against
Seigfried, Juror 2 never explicitly stated that she could not be an impartial juror.
      In contrast to the statements by Juror 2 during voir dire, both this court
and others courts have found actual bias where a juror forthrightly states that
she could not be fair and impartial. In Virgil v. Dretke, we determined that two
jurors exhibited actual bias where they responded in the following manner on
voir dire:
      [DEFENSE]: So therefore you could not serve as an impartial juror
      in this case?
      [VENIREMAN 16]: Perhaps not.
      [DEFENSE]: Is your answer no or yes?
      [VENIREMAN 16]: I would say no.
      ....
      [DEFENSE]: Would this cause you to be a juror who could not be
      fair and impartial in this case?
      [VENIREMAN 17]: Yeah, I believe so.

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      [DEFENSE]: All right. Not believe or is it so?
      [VENIREMAN 17]: I said: Yes, I do believe so.
446 F.3d at 603-04, 610. Similarly, in Hughes v. United States the Sixth Circuit
found a potential juror actually biased based on the following colloquy:
      JUROR: I have a nephew on the police force in Wyandotte, and I
      know a couple of detectives, and I’m quite close to ‘em.
      THE COURT: Anything in that relationship that would prevent you
      from being fair in this case?
      JUROR: I don’t think I could be fair.
      THE COURT: You don’t think you could be fair?
      JUROR: No.
258 F.3d 453, 456 (6th Cir. 2001). After reviewing the transcript of voir dire, and
comparing the responses of Juror 2 to those in cases of actual bias, we cannot
conclude that the state court’s implicit finding that the juror was not actually
biased was “an unreasonable determination of the facts.” 28 U.S.C. § 2254(d)).
      2. Trial Strategy Justification
      Continuing with the deficient performance analysis, we next evaluate
whether trial counsel’s failure to challenge the juror was justified by trial
strategy. Under Strickland, “the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound
trial strategy.’” 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)). A “conscious and informed decision on trial tactics and strategy cannot
be the basis for constitutionally ineffective assistance of counsel unless it is so
ill chosen that it permeates the entire trial with obvious unfairness.” Richards,
566 F.3d at 564 (internal quotations and citations omitted). Generally, an
“attorney’s actions during voir dire are considered to be a matter of trial
strategy.” Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995).




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      This court has held that where a juror clearly demonstrates actual bias,
with no reassurance given that she would attempt impartiality, counsel may be
obliged to use a for-cause or peremptory challenge on the juror, and failure to do
so likely constitutes deficient performance. Virgil, 446 F.3d at 610; see also
Hughes, 258 F.3d at 462 (“When a venireperson expressly admits bias on voir
dire, without a court response of follow-up, for counsel not to respond in turn is
simply a failure ‘to exercise the customary skill and diligence that a reasonably
competent attorney would provide.’”) (quoting Johnson v. Armontrout, 961 F.2d
748, 754 (8th Cir. 1992)). Because we have concluded that Juror 2 did not
demonstrate actual bias, however, trial counsel’s failure to raise a for-cause
challenge does not constitute error. See Smith v. Puckett, 907 F.2d 581, 585 n.6
(5th Cir. 1990) (“Counsel is not deficient for . . . failure to raise a legally
meritless claim.”).
      Observing that Seigfried’s trial counsel used all six of his available
peremptory strikes, the State asserts that counsel may have believed that the
other potential jurors stricken via peremptory challenges would have been more
likely than Juror 2 to convict Seigfried. One of the jurors stricken had prior
experience working with Seigfried, one had ties to law enforcement, three knew
members of the district attorney’s office, and one had been assaulted at a young
age. Although the record does not contain an affidavit from Seigfried’s trial
counsel as to his trial strategy, the record evidence of the backgrounds of the
stricken jurors is consistent with the state court’s implicit finding of a trial
strategy justification. With respect to counsel’s failure to strike Juror 2 using a
peremptory challenge, we conclude that Seigfried has failed to overcome the
Strickland presumption that leaving Juror 2 on the jury might be considered
sound trial strategy. Consequently, the state court’s conclusion that Seigfried’s
counsel’s performance was not deficient is not “objectively unreasonable.”



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C.      Prejudice
        It is not enough for a petitioner to show that counsel’s performance was
deficient. Strickland, 466 U.S. at 691. The petitioner must also show that his
defense was prejudiced by counsel’s conduct. Id. at 692. But because we conclude
that Seigfried’s trial counsel did not render deficient performance under
Strickland’s first prong, there can be no resulting prejudice. Strickland, 466 U.S.
at 697; see also Martinez v. Dretke, 404 F.3d 878, 885 (5th Cir. 2007) (“Under
Strickland’s conjunctive test, [petitioner’s] failure to demonstrate either
deficiency or prejudice must result in the failure of his claim.”).
                              III. CONCLUSION
        For the reasons discussed, the Mississippi Supreme Court’s decision that
trial counsel’s representation of Seigfried passed constitutional muster was not
contrary to or an unreasonable application of clearly established federal law. We
therefore AFFIRM the district court’s judgment denying habeas relief.




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