        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206             2    Miller v. Webb                               No. 02-5907
    ELECTRONIC CITATION: 2004 FED App. 0323P (6th Cir.)
                File Name: 04a0323p.06                                          _________________
                                                                                    OPINION
UNITED STATES COURT OF APPEALS                                                  _________________
              FOR THE SIXTH CIRCUIT                           DAMON J. KEITH, Circuit Judge. Petitioner-Appellant
                _________________                           Kenny Roy Miller (“Miller”) is currently serving a life
                                                            sentence after a state conviction for intentional murder,
 KENNY ROY MILLER,               X                          criminal attempt to commit murder, first-degree burglary, and
          Petitioner-Appellant, -                           being a first-degree persistent felony offender. Miller appeals
                                  -                         from the district court’s denial of his petition for a writ of
                                  -   No. 02-5907           habeas corpus pursuant to 28 U.S.C. § 2254. In his habeas
           v.                     -                         petition, Miller alleges that his trial counsel was ineffective
                                   >                        for failing to challenge a biased juror during voir dire. Miller
                                  ,                         argues that the Kentucky Court of Appeals denial of his
 PATTI WEBB , Warden,             -
         Respondent-Appellee. -                             ineffective assistance of counsel claim was contrary to, and an
                                                            unreasonable application of, clearly established federal law.
                                 N                          For the reasons set forth below, we REVERSE the district
       Appeal from the United States District Court         court’s order and REMAND for proceedings consistent with
   for the Western District of Kentucky at Owensboro.       this opinion.
 No. 01-00187—Joseph H. McKinley, Jr., District Judge.
                                                                                I. BACKGROUND
                Submitted: June 11, 2004
                                                               On November 14, 1990, a grand jury in Warren County,
        Decided and Filed: September 22, 2004               Kentucky indicted Miller for intentional murder, criminal
                                                            attempt to commit murder, first-degree burglary, and being a
 Before: KEITH, CLAY, and GIBBONS, Circuit Judges.          first-degree persistent felony offender. The indictment
                                                            charged Miller for shooting and killing Leon Gray and
                  _________________                         shooting and seriously wounding Linda Cline in their bed at
                                                            an apartment in Bowling Green, Kentucky.
                       COUNSEL
                                                              On August 17, 1992, a jury trial commenced against Miller
ON BRIEF: Kenny Roy Miller, Central City, Kentucky, pro     in the Warren Circuit Court. During voir dire, one
se.                                                         prospective juror, Yvonne Bell (“Juror Bell”), in response to
                                                            the prosecutor’s voir dire question, stated that she was a
  KEITH, J., delivered the opinion of the court, in which   minister and that she had known Linda Cline for two or three
CLAY, J., joined. GIBBONS, J. (pp. 22-30), delivered a      years through Bible study. Linda Cline, the woman who was
separate dissenting opinion.                                shot and seriously wounded, was one of the prosecution’s key
                                                            witnesses and the only eyewitness to the crime. At this point

                            1
No. 02-5907                             Miller v. Webb          3   4      Miller v. Webb                             No. 02-5907

of the voir dire, Miller’s trial counsel, William Skaggs                Ms. Bell:   I think I could be fair. I think I could be
(“Skaggs”), did not ask Juror Bell any follow-up questions.                         fair. I ministered in the women’s section
Towards the end of the voir dire, however, the trial court                          for about four years. She was kind of in
asked the members of the jury panel if they wanted to reveal                        and out, but she seemed like she wanted to
further information. The following dialogue took place:                             do better, but I believe I could be fair and
                                                                                    whether she’s guilty or not guilty I believe
  Judge:       Okay, one final thing. . . . [D]uring the                            I could be fair about it all. But I do have
               course of this proceeding there may have                             some feelings about her.
               been something that was asked that you let
               go by. Something that you thought you                    Judge:      Okay, ma’am. I’m going to . . . go back
               weren’t sure but now its bothering you.                              and take your seat, I’m going to hear from
               Anybody have anything they need, feel like                           the lawyers.
               they need to bring up with the court, I’ll be
               happy to take it up here at the bench, that              Mr. Skaggs: Judge, may I ask her a question?
               you would feel would in any way would
               cause you any difficulty in sitting as a juror           Judge:      Yes, you may.
               in this case. Yes, ma’am, come on up.
                                                                        Mr. Skaggs: The women’s section.          The women’s
  [bench conference]                                                                section of what?

  Ms. Bell:    I’m Yvonne Bell.                                         Ms. Bell:   The Warren County Jail.

  Judge:       Yes, Ms. Bell.                                           Mr. Skaggs: Okay, and how many years ago was this, or
                                                                                    was it recent?
  Ms. Bell:    I feel like I would kind of be partial to
               Linda Cline because, when she was in my                  Ms. Bell:   From ’80 . . . about four years, up until last
               classes (inaudible) she seemed like she                              year.
               really wanted to do better and I kind of
               have sympathy for her in this case, with her             Mr. Skaggs: Okay, and so you have seen her since this
               being the victim.                                                    happened?

  Judge:       Do you believe the fact that you had her,                Ms. Bell:   No, I haven’t[.] I haven’t been coming to
               you indicated, in Bible studies, and will                            the (inaudible) for about a year now.
               appear as a witness in this case and is
               alleged to be one of the victims in this                 Mr. Skaggs: Well, this happened 18 months ago.
               case, do you believe that would influence                Ms. Bell:   Well, I don’t know. I don’t remember. I
               your thinking here and cause you to be                               never ask any of them about why they’re in
               more sympathetic for her side as such as                             for or any of their business. My whole
               you couldn’t sit and be fair and impartial?                          concern was the word of God. I never talk
No. 02-5907                              Miller v. Webb      5    6      Miller v. Webb                                 No. 02-5907

                to them about their cases or any of their         evidentiary hearing. The Warren Circuit Court heard
                personal business.                                testimony from Miller and his trial counsel, Skaggs. Skaggs
                                                                  testified that he did not seek to exclude Juror Bell from the
  Mr. Skaggs: I see. That’s all.                                  jury because:
  Judge:        Okay, you may step down. Just take your               Most people do not understand the world of extreme hard
                seat back. [Juror departs.] Do either of              core drug addicts and . . . this case [involved] hard core
                you want me to consider striking this                 drug addicts . . . . It is a different reality. Regular jurors
                woman, this juror for cause?                          do not understand that hard core drug addicts will lie
                                                                      . . . [.] They will only tell the truth if they have no other
  Mr. Wilson: Well. She said she could be fair. She does              opportunity. And, since this lady knew Linda Cline,
              know the person but she did answer the                  knew she was completely unworthy of belief, I left her
              question that she could be fair.                        up. . . . Anyone who knew Linda Cline, knew that she
                                                                      could not be trusted, that was my thinking at the time.
  Mr. Skaggs: I have no motion.
                                                                    On February 2, 1999, the Warren Circuit Court denied
In addition to not challenging Juror Bell for cause, Miller’s     Miller’s motion. Miller appealed to the Kentucky Court of
trial counsel did not use a peremptory challenge to remove the    Appeals. On January 19, 2001, the Kentucky Court of
prospective juror. Therefore, Juror Bell remained on the jury.    Appeals affirmed the Warren Circuit Court’s decision holding
                                                                  that Miller failed to rebut the presumption that trial counsel’s
  On August 19, 1992, the jury, which included Juror Bell,        decision to not exclude the juror was sound trial strategy and,
convicted Miller on all charges of the indictment. On             therefore, not deficient performance pursuant to Strickland v.
September 2, 1992, the trial court sentenced Miller to life and   Washington, 466 U.S. 668 (1984). Miller filed a motion for
to two twenty-year terms of imprisonment, to run                  discretionary review with the Kentucky Supreme Court. On
consecutively. Miller filed a direct appeal to the Kentucky       October 17, 2001, the Kentucky Supreme Court denied
Supreme Court concerning the judgment of conviction and           Miller’s motion.
sentence. On September 29, 1994, the Kentucky Supreme
Court affirmed the conviction, but remanded the case for re-        After exhausting his remedies in the Kentucky state courts,
sentencing and directed the trial court to run Miller’s life      on November 2, 2001, Miller filed a petition for a writ of
sentence concurrently with his forty-year sentence. On            habeas corpus, pro se, pursuant to 28 U.S.C. § 2254 in the
November 15, 1994, the trial court re-sentenced Miller in         United States District Court for the Western District of
accordance with the Kentucky Supreme Court’s order.               Kentucky. Miller raised five claims of ineffective assistance
                                                                  of counsel. Miller argued that: (1) his attorney failed to seek
   On October 26, 1995, with new court-appointed counsel,         to exclude Juror Bell, who knew and admired the State’s
Miller filed a motion to vacate the judgment based upon           primary witness; (2) his attorney failed to investigate and
ineffective assistance of counsel. Among his allegations,         subpoena witnesses to directly contradict the State’s chief
Miller argued that his trial counsel was ineffective when he      witness; (3) his attorney attempted to establish an alibi
allowed Juror Bell, a biased juror, to remain on the jury. On     defense, which he knew he could not support by credible
September 2, 1998, the Warren Circuit Court held an               witnesses; (4) his attorney failed to move for a mistrial after
No. 02-5907                               Miller v. Webb       7    8        Miller v. Webb                                 No. 02-5907

a juror had prejudicial exposure to a spectator at trial; and       Respondent-Appellant Patti Webb, Warden, waived the
(5) the cumulative effect of his counsel’s errors constituted       opportunity to respond to Miller’s appeal.
ineffective assistance.
                                                                                            II. DISCUSSION
   On January 7, 2002, the district court referred the matter to
a magistrate judge for a report and recommendation. On May             This Court reviews a district court’s legal conclusions in a
28, 2002, the magistrate judge entered findings of fact and         habeas petition de novo. Lucas v. O’Dea, 179 F.3d 412, 416
conclusions of law, recommending that the district court deny       (6th Cir. 1999). This Court usually reviews findings of fact
the petition on the merits and issue a certificate of               for clear error, “but when the district court’s decision in a
appealability on the first issue only, because reasonable jurists   habeas case is based on a transcript from the petitioner’s state
could find the assessment of the constitutional claim               court trial, and the district court thus makes ‘no credibility
debatable or wrong. On June 10, 2002, Miller filed                  determination or other apparent findings of fact,’ the district
objections to the findings of fact. On June 19, 2002, the           court’s factual findings are reviewed de novo.” Wolfe v.
district court entered an order adopting the magistrate judge’s     Brigano, 232 F.3d 499, 501 (6th Cir. 2000) (quoting Moore
report and recommendation. In denying the habeas petition           v. Carlton, 74 F.3d 689, 691 (6th Cir. 1996)).
on the first issue, the district court held that Miller failed to
overcome the presumption that trial counsel’s reason for              In determining whether to issue a writ of habeas corpus, the
allowing Juror Bell to remain on the jury was sound trial           provisions of the Antiterrorism and Effective Death Penalty
strategy. In addition, the district court held that Miller failed   Act of 1996 (“AEDPA”) govern the district court’s review of
to show that Juror Bell was actually biased against him.            a state court decision.1 28 U.S.C. § 2241. Pursuant to the
Therefore, the district court ruled that Miller failed to show      AEDPA,
that the decision of the Kentucky Court of Appeals, which
denied his ineffective assistance of counsel claim, was                 [a]n application for a writ of habeas corpus on behalf of
contrary to, or an unreasonable application of, clearly                 a person in custody pursuant to the judgment of a State
established federal law.                                                court shall not be granted with respect to any claim that
                                                                        was adjudicated on the merits in State court proceedings
  On July 17, 2002, Miller filed a notice of appeal for the             unless the adjudication of the claim–
district court’s denial of his habeas petition based on his first
claim of ineffective assistance of counsel, which the district            (1) resulted in a decision that was contrary to, or
court certified. On July 24, 2002, Miller also appealed the               involved an unreasonable application of, clearly
district court’s order denying a certificate of appealability on          established Federal law, as determined by the Supreme
Miller’s remaining four claims. On January 17, 2003, this                 Court of the United States; or
Court denied Miller’s application for a partial certificate of
appealability holding that Miller failed to make a substantial
showing of the denial of a constitutional right. This Court
                                                                         1
determined that Miller’s appeal should proceed on the claim               W e decid e this case under the AED PA beca use M iller filed his
that the district court certified: Whether Miller was denied        petition for a writ of habeas corpus on November 2, 2001, well after the
the effective assistance of counsel when his trial counsel          AE DP A’s effective d ate of A pril 24 , 1996 . See Lindh v. Murphy, 521
                                                                    U.S. 320 , 336 (1997); Barker v. Yukins, 199 F.3d 867 , 871 (6th Cir.
failed to seek to exclude Juror Bell. On May 12, 2003,              1999).
No. 02-5907                                 Miller v. Webb       9    10    Miller v. Webb                               No. 02-5907

     (2) resulted in a decision that was based on an                     Under the AEDPA, therefore, the threshold inquiry is
     unreasonable determination of the facts in light of the          whether Miller seeks to apply a rule of law that was clearly
     evidence presented in the State court proceeding.                established at the time of his conviction in the state court. See
                                                                      id. at 412. Miller seeks to apply the Supreme Court’s holding
Id. § 2254(d).                                                        in Strickland v. Washington, 466 U.S. 668 (1984),which the
                                                                      Supreme Court had clearly established at the time of Miller’s
   The Supreme Court explained these requirements for                 conviction, to show ineffective assistance of counsel. The
habeas relief under 28 U.S.C. § 2254(d)(1) in Williams v.             Court in Strickland established a two-prong test to evaluate
Taylor, 529 U.S. 362 (2000). In Williams, the Court held              claims of ineffective assistance of counsel pursuant to the
that, in order to justify a grant of habeas relief, a federal court   Sixth Amendment. First, the petitioner “must show that
must find a violation of law that is “clearly established” from       counsel’s representation fell below an objective standard of
“the holdings, as opposed to the dicta, of [the Supreme]              reasonableness. Judicial scrutiny of counsel’s performance
Court’s decisions as of the time of the relevant state-court          must be highly deferential, and a fair assessment of attorney
decision.” Id. at 412. The Court held that a state court’s legal      performance requires that every effort be made to eliminate
decision is “contrary to” clearly established federal law “if the     the distorting effects of hindsight, to reconstruct the
state court arrives at a conclusion opposite to that reached by       circumstances of counsel’s challenged conduct, and to
[the Supreme] Court on a question of law or if the state court        evaluate the conduct from counsel’s perspective at the time.”
decides a case differently than [the Supreme] Court has on a          Id. at 689. A court considering a claim of ineffective
set of materially indistinguishable facts.” Id. at 413.               assistance of counsel “must indulge a strong presumption that
Furthermore, the Court held that a state court’s legal decision       counsel’s conduct falls within the wide range of reasonable
will be deemed an “unreasonable application” of clearly               professional assistance.” Id. Second, the petitioner must
established federal law “if the state court identifies the correct    show that counsel’s performance prejudiced the petitioner.
governing legal principle from [the Supreme] Court’s                  That is, the petitioner must “show that there is a reasonable
decisions but unreasonably applies that principle to the facts        probability that, but for counsel’s unprofessional errors, the
of the prisoner’s case.” Id.                                          result of the proceeding would have been different.” Id.
                                                                      When a biased juror is impaneled, however, “prejudice under
   A federal court, however, may not find a state adjudication        Strickland is presumed, and a new trial is required.” Hughes
to be unreasonable “simply because that court concludes in its        v. United States, 258 F.3d 453, 457 (6th Cir. 2001).
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or                   Miller argues that it was ineffective assistance of counsel
incorrectly.    Rather, that application must also be                 for his trial counsel to keep Juror Bell, a biased juror, on the
unreasonable.” Id. at 411. Moreover, a federal court making           jury. Pursuant to the Sixth and Fourteenth Amendments, a
the unreasonable application inquiry should not transform the         criminal defendant is guaranteed the right to an impartial and
inquiry into a subjective one by inquiring whether all                unbiased jury. Morgan v. Illinois, 504 U.S. 719, 727 (1992).
reasonable jurists would agree that the application by the state      “Among the most essential responsibilities of defense counsel
court was unreasonable. Rather, the issue is “whether the             is to protect his client’s constitutional right to a fair and
state court’s application of clearly established federal law is       impartial jury by using voir dire to identify and ferret out
objectively unreasonable.” Id. at 410.                                jurors who are biased against the defense.” Miller v. Francis,
                                                                      269 F.3d 609, 615 (6th Cir. 2001); see United States v.
No. 02-5907                               Miller v. Webb     11    12    Miller v. Webb                                No. 02-5907

Blount, 479 F.2d 650, 651 (6th Cir. 1973) (“The primary            by the court and must be based on a finding of actual or
purpose of the voir dire of jurors is to make possible the         implied bias.’” Id. (quoting Virgin Islands v. Felix, 569 F.2d
empanelling of an impartial jury through questions that permit     1274, 1277 n. 5 (3d Cir. 1978)).
the intelligent exercise of challenges by counsel.” ); see also
Mu’Min v. Virginia, 500 U.S. 415, 431 (1991) (stating that            Pursuant to the Sixth Amendment, for a finding of juror
voir dire “serves the dual purposes of enabling the court to       impartiality when a juror is challenged for cause, the relevant
select an impartial jury and assisting counsel in exercising       question is “did [the] juror swear that he could set aside any
peremptory challenges”); Rosales-Lopez v. United States, 451       opinion he might hold and decide the case on the evidence,
U.S. 182, 188 (1981) (“Voir dire plays a critical function in      and should the juror’s protestation of impartiality have been
assuring the criminal defendant that his Sixth Amendment           believed.” Patton v. Yount, 467 U.S. 1025, 1036 (1984). A
right to an impartial jury will be honored.”).                     qualified juror need not be “totally ignorant of the facts and
                                                                   issues involved.” Murphy v. Florida, 421 U.S. 794, 800
   Counsel, however, is granted deference when conducting          (1975). Rather, “‘[i]t is sufficient if the juror can lay aside his
voir dire. Hughes, 258 F.3d at 457. “An attorney’s actions         impression or opinion and render a verdict based on the
during voir dire are considered to be matters of trial strategy.   evidence presented in court.’” Id. (quoting Irvin v. Dowd,
. . . A strategic decision cannot be the basis for a claim of      366 U.S. 717, 723 (1961)). In Irvin, the Supreme Court
ineffective assistance unless counsel’s decision is shown to be    stated:
so ill-chosen that it permeates the entire trial with obvious
unfairness.” Id. (citation omitted). Despite this strong             In these days of swift, widespread and diverse methods
presumption that counsel’s decisions are based on sound trial        of communication, an important case can be expected to
strategy, it is insufficient for counsel to simply articulate a      arouse the interest of the public in the vicinity, and
reason for an omission or act alleged to constitute ineffective      scarcely any of those best qualified to serve as jurors will
assistance of counsel. “The trial strategy itself must be            not have formed some impression or opinion as to the
objectively reasonable.” Miller, 269 F.3d at 616 (citing             merits of the case. This is particularly true in criminal
Strickland, 466 U.S. at 681).                                        cases. To hold that the mere existence of any
                                                                     preconceived notion as to the guilt or innocence of an
   A trial court’s management of voir dire is granted similar        accused, without more, is sufficient to rebut the
deference. The Supreme Court has acknowledged the                    presumption of a prospective juror’s impartiality would
“traditionally broad discretion accorded to the trial judge in       be to establish an impossible standard. It is sufficient if
conducting voir dire.” Mu’Min, 500 U.S. at 423. A trial              the juror can lay aside his impression or opinion and
court’s management of voir dire, however, is “subject to             render a verdict based on the evidence presented in court.
essential demands of fairness.” Hughes, 258 F.3d at 457
(citations and internal quotation marks omitted). Because a        Irvin, 366 U.S. at 722-23.
petitioner’s Sixth Amendment right to an impartial jury is at
stake, “[a] defendant may obtain a new trial if an impaneled         If actual bias is discovered during voir dire, the trial court
juror’s honest responses to questions on voir dire would have      must excuse the prospective juror. Hughes, 257 F.3d at 459.
given rise to a valid challenge for cause.” Id. (citing            “‘Actual bias is “bias in fact”– the existence of a state of mind
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548,           that leads to an inference that the person will not act with
556 (1984)). “‘Challenges for cause are subject to approval        entire impartiality.’” Id. at 463 (quoting United States v.
No. 02-5907                                Miller v. Webb      13    14    Miller v. Webb                               No. 02-5907

Torres, 128 F.3d 38, 43 (2d Cir. 1997) (citing United States           THE COURT: Anything in that relationship that would
v. Wood, 299 U.S. 123, 133 (1936))). Although bias can be              prevent you from being fair in this case?
revealed through a prospective juror’s express admission,
more frequently, jurors are reluctant to admit actual bias and         JUROR: I don’t think I could be fair.
the trial court must discover their biased attitudes through
circumstantial evidence. Id. at 459 (citing United States v.           THE COURT: You don’t think you could be fair?
Allsup, 566 F.2d 68, 71 (9th Cir. 1977)).
                                                                       JUROR: No.
   Because Miller’s claim for ineffective assistance of counsel
is based on his trial counsel’s failure to strike a biased juror,      THE COURT: Okay. Anybody else? Okay. Where did
Miller must show that the juror was actually biased against            we leave off?
him. Id. at 458 (citing Goeders v. Hundley, 59 F.3d 73, 75
(8th Cir. 1995) (citing Smith v. Phillips, 455 U.S. 209, 215         Id. at 456. Neither the judge nor counsel asked any follow-up
(1982))). “A juror’s express doubt as to her own impartiality        questions. In addition, counsel never attempted to remove the
on voir dire does not necessarily entail a finding of actual         juror for cause or by peremptory strike. This Court held that,
bias. The Supreme Court has upheld the impaneling of jurors          while a juror’s express doubt as to her ability to be impartial
who had doubted, or disclaimed outright, their own                   on voir dire does not necessarily result in a finding of actual
impartiality on voir dire.” Id.; see also Patton, 467 U.S. at        bias, actual bias was present because neither counsel nor the
1025 (holding that trial court did not commit “manifest error”       trial court responded to the juror’s express statement that she
when finding jury members to be impartial despite admitting          could not be fair. There was no subsequent assurance of
that they formed an opinion as to the defendant’s guilt due to       impartiality and no rehabilitation by counsel or the court
pretrial publicity).                                                 through follow-up questions. This Court held that, when left
                                                                     with only a statement of partiality without a subsequent
  This Court in Hughes, however, found actual bias when a            assurance of impartiality or rehabilitation through follow-up
juror made an unequivocal statement of partiality and there          questions, “juror bias can always be presumed from such
was neither a subsequent assurance of impartiality nor               unequivocal statements.” Id. at 460. As a result of finding
rehabilitation by counsel or the court through follow-up             actual bias, this Court held that the state court’s denial of the
questions. Hughes, 258 F.3d at 460. In Hughes, the                   defendant’s ineffective assistance of counsel claim was an
government charged the defendant with theft of government            unreasonable application of clearly established federal law.
property and wrongful possession of a firearm in connection
with the robbing of a Deputy United States Marshall. During            Our present case is similar to Hughes. As in Hughes, Juror
voir dire, the judge asked potential jurors if they could be fair.   Bell did not unequivocally swear that she could set aside her
In response, the following exchange occurred:                        opinion and decide the case on the evidence. When the trial
                                                                     judge asked the jury panel whether any individual had
  JUROR [Jeanne Orman]: I have a nephew on the police                anything else to add, Juror Bell stated, “I feel like I would
  force in Wyandotte, and I know a couple of detectives,             kind of be partial to Linda Cline because, when she was in my
  and I’m quite close to ’em.                                        classes (inaudible) she seemed like she really wanted to do
                                                                     better and I kind of have sympathy for her in this case, with
                                                                     her being the victim.” Juror Bell indicated that she was
No. 02-5907                               Miller v. Webb      15    16    Miller v. Webb                               No. 02-5907

“partial” to the government’s key witness. The trial judge          failed to respond to Juror Bell’s statement of bias on voir dire,
asked only one follow-up question regarding whether she             we find that, as in Hughes, counsel’s failure to respond in turn
could be fair and impartial. In response, Juror Bell stated, “I     was objectively unreasonable pursuant to Strickland. “When
think I could be fair,” however, she immediately qualified her      a venireperson expressly admits bias on voir dire, without a
statement by stating, “[b]ut I do have some feelings about          court response or follow-up, for counsel not to respond [to the
her.” Although defense counsel questioned her further, he           statement of partiality] in turn is simply a failure ‘to exercise
only inquired about the women’s section and the jail. Neither       the customary skill and diligence that a reasonably competent
counsel nor the judge followed-up on her statement of               attorney would provide.’” Hughes, 258 F.3d at 462 (quoting
partiality. They did not ask whether she could “lay aside [her      Johnson v. Armontrout, 961 F.2d 748, 754 (8th Cir. 1992)).
feelings] and render a verdict based on the evidence presented
in court.” Irvin, 366 U.S. at 722-23. In this context, when a          The Kentucky Court of Appeals held that Miller was not
juror makes a statement that she thinks she can be fair, but        denied effective assistance of counsel because Miller failed to
immediately qualifies it with a statement of partiality, actual     show that his trial counsel’s decision to leave Juror Bell on
bias is presumed when proper juror rehabilitation and juror         the jury was not the result of reasonable professional
assurances of impartiality are absent, as in Hughes.                judgment. Miller’s trial counsel, Skaggs, stated that he kept
                                                                    Juror Bell on the jury because the case was about “hard core
   This Court acknowledges that, when asked whether a               drug addicts” and Juror Bell knew Linda Cline and “[a]nyone
particular juror can be fair, statements such as “I think I could   who knew Linda Cline, knew that she could not be trusted.”
be fair” are not necessarily construed as equivocation. Miller      The Kentucky Court of Appeals noted that any error in trial
v. Francis, 269 F.3d at 618. In Miller v. Francis, we stated,       strategy regarding the selection of jurors does not generally
“venire members commonly couch their responses to                   rise to the level of ineffective assistance of counsel.
questions concerning bias in terms of ‘I think.’ Therefore, the
use of such language cannot necessarily be construed as                Contrary to the Kentucky Court of Appeals’s decision, the
equivocation.” Id. For a juror to say, “I think I could be fair,    decision whether to seat a biased juror cannot be a
but . . . ,” without more, however, must be construed as a          discretionary or strategic decision. Id. at 463 (citing United
statement of equivocation. It is essential that a juror “swear      States v. Martinez-Salazar, 528 U.S. 304, 316 (2000) (holding
that [she] could set aside any opinion [she] might hold and         that the seating of a biased juror who should have been
decide the case on the evidence.” Patton, 467 U.S. at 1036.         dismissed for cause requires reversal of the conviction)). As
If a juror does not make such an unequivocal statement, then        we previously held, there is no sound trial strategy that could
a trial court cannot believe the protestation of impartiality.      support what is essentially a waiver of a defendant’s basic
See id. Accordingly, when the trial court is ultimately left        Sixth Amendment right to trial by an impartial jury. Id. If,
with a statement of partiality, as in this case, that is coupled    however, there could be such a strategic decision, this case
with a lack of juror rehabilitation or juror assurances of          does not present such a situation because Skaggs’s articulated
impartiality, we are left to find actual bias.                      trial strategy was objectively unreasonable. First, Skaggs’s
                                                                    reasoning that “anyone who knew Linda Cline, knew that she
  When a trial court is confronted with a biased juror, as in       could not be trusted” was completely baseless. Juror Bell
this case, the judge must, either sua sponte or upon a motion,      never gave counsel nor the court an indication that she did not
dismiss the prospective juror for cause. Frazier v. United          trust Linda Cline. On the contrary, Juror Bell believed that
States, 335 U.S. 497, 511 (1948). Because the trial court           Linda Cline “wanted to do better” and Juror Bell had
No. 02-5907                               Miller v. Webb     17    18       Miller v. Webb                                     No. 02-5907

“sympathy for her in this case, with her being the victim.” It     relationship with the victim’s parents would influence her.
was clear that Juror Bell was not an individual who did not        Id. at 502. The third prospective juror admitted she read and
trust Linda Cline. Rather, Juror Bell was involved in ministry     saw news accounts of the crime and “expressed doubt as to
with Linda Cline and believed in her.                              whether she could put aside those reports and decide the case
                                                                   solely on the evidence presented at trial.” Id. at 502-03. The
   Second, Skaggs’s reasoning that this case was about “hard       fourth prospective juror “doubted he would require the
core drug addicts” and its dependent implication that Juror        prosecution to prove its case beyond a reasonable doubt.” Id.
Bell knew about this subject was also baseless. Although           at 503. This Court held that “[i]n the absence of an
Juror Bell was a minister at the Warren County Jail, she           affirmative and believable statement that these jurors could
specifically stated that she “never ask[ed] any of them about      set aside their opinions and decide the case on the evidence
why they’re in for or any of their business. [Her] whole           and in accordance with the law, the failure to dismiss them
concern was the word of God. [She] never talk[ed] to them          was unreasonable.” Id. (citing Patton, 467 U.S. at 1036).
about their cases or any of their personal business.” In           This Court further stated that “it appears that the trial judge
addition, during voir dire, Skaggs never questioned Juror Bell     based his findings of impartiality exclusively upon each
about her knowledge of “hard core drug addicts.” Skaggs            juror’s tentative statements that they would try to decide this
made an unreasonable assumption that Juror Bell had such           case on the evidence presented at trial. Such statements,
knowledge considering that Juror Bell stated that she never        without more, are insufficient. . . . The Sixth Amendment
discussed personal business with the ladies. Accordingly,          guarantees Wolfe the right to a jury that will hear his case
Skaggs’s trial strategy was objectively unreasonable. It was       impartially, not one that tentatively promises to try.” Id.
illogical to keep Juror Bell on the jury when she was partial      Therefore, this Court granted habeas relief because the denial
to Linda Cline, the Government’s key witness and victim. No        of a challenge for cause violated the petitioner’s Sixth
competent attorney would have employed such a strategy.            Amendment right to an impartial jury.
   The “‘presence of a biased juror cannot be harmless; the          As in Wolfe, when Juror Bell stated, “I think I can be fair.
error requires a new trial without a showing of actual             But . . .[,]” there was an absence of an affirmative and
prejudice.’” Hughes, 258 F.3d at 453 (quoting United States        believable statement that Juror Bell could set aside her
v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir. 2000) (citations        opinion and decide the case on the evidence and in
omitted)).    Therefore, because Miller’s trial counsel            accordance with the law.2 Such statements of partiality,
impaneled a biased juror, “prejudice under Strickland is           without more, are insufficient. See id.
presumed, and a new trial is required.” Id.
                                                                      Another case in this Circuit that involved juror impartiality
  This Court has decided two other notable cases regarding         is Miller v. Francis, 269 F.3d 609 (6th Cir. 2001). In Miller
impartial jurors. In Wolfe v. Brigano, 232 F.3d 499 (6th Cir.      v. Francis, this Court declined to grant habeas relief for an
2000), the trial court denied the defense’s challenges for cause
of four prospective jurors in a murder trial. The first two
prospective jurors were close friends of the victim’s parents.
                                                                        2
One of these jurors did not think he could be fair and                   An affirmative stateme nt of imp artiality is required to ensure that a
impartial. The other stated that she could be fair and             juror is unbiased, but such a statement alone is not the determining factor.
impartial, but conceded that it was “hard to say” whether her      A trial court must still determine, from the context, whether such a
                                                                   statement is believable. Patton, 467 U.S. at 1036.
No. 02-5907                               Miller v. Webb      19    20    Miller v. Webb                               No. 02-5907

ineffective assistance of counsel claim. The defendant was            Miller has failed to meet his burden. Furrow’s prior
charged and convicted for gross sexual imposition and rape of         knowledge of the case was not extensive or detailed.
a minor under the age of thirteen. During voir dire, one juror,       Furrow indicated during voir dire that [the victim’s
Patricia Furrow (“Furrow”), stated that she had knowledge of          mother] told her over the phone that her son had been
the case, but could not discuss the case in open court because        raped, but did not disclose the name of the suspect or any
of privacy concerns. During an in camera examination,                 details of the event or the investigation. Furrow agreed
Furrow indicated that she was a welfare caseworker to the             that she would not necessarily assume that what [the
victim’s mother. Furrow stated that she knew what happened,           victim’s mother] told her was true and that she could
but the victim’s mother did not use any names and did not             base her judgment on the evidence presented at trial.
discuss the details of the rape or the criminal investigation.        Jurors need not be totally ignorant of the facts and issues
Furrow expressed concern about participating on the jury.             involved in the case. [Irvin, 366 U.S. at 722.]
She thought it would be uncomfortable for both herself and
the victim’s mother. In addition, she was worried that the          Miller v. Francis, 269 F.3d at 616. In denying habeas relief,
victim’s mother would try to telephone her during the trial to      this Court distinguished Miller v. Francis from Hughes by
talk about the case. When the prosecutor asked her whether          stating that, unlike Hughes, the trial court held a separate in
she could be fair, she replied, “I–it’s tough. I think I could be   camera examination of the juror when she indicated she had
fair.” Id. at 612. When defense counsel later asked whether         some prior knowledge of the case. During the in camera
her professional relationship with the victim’s mother lent         examination, the trial court, the prosecutor, and defense
more credence to the charges against his client, Furrow             counsel questioned her regarding her knowledge, her
answered, “No, I don’t really think that I would be biased.         relationship with the victim’s mother, and whether she could
Just uncomfortable.” Id. Furrow stated that if a problem            be fair and impartial. Unlike the juror in Hughes, “Furrow
arose as a result of her participation as a juror, the victim’s     never stated that she could not be fair. While Furrow
mother could be reassigned to a new caseworker. Defense             expressed some discomfort about sitting on the jury, she
counsel declined to challenge Furrow for cause or use a             consistently answered that she could be fair.” Id. at 617.
peremptory challenge to remove the potential juror. The             Therefore, the Court was “not constrained to make a finding
defendant was then convicted for the charged crimes.                of actual bias based upon an undisputed statement of a juror
                                                                    that she could not be fair in deciding the case.” Id.
  The defendant, in his habeas petition, argued that his
defense counsel was ineffective for failing to challenge a            Unlike Miller v. Francis, where there was no statement of
biased juror and, therefore, the Ohio Court of Appeals              partiality, Juror Bell specifically stated she would be “partial”
unreasonably determined that he was not denied the effective        to Linda Cline. Juror Bell stated that she had “sympathy for
assistance of counsel. This Court, however, declined to grant       her” and believed she was the “victim.” Juror Bell never
habeas relief, holding that the defendant failed to meet his        unequivocally stated that she could be fair. On the contrary,
burden of showing actual bias. This Court stated:                   Juror Bell gave a qualified statement of impartiality.
                                                                    Moreover, unlike Miller v. Francis, where there was
  Because Miller’s claim of ineffective assistance of               sufficient questioning regarding the relationship between the
  counsel is founded upon a claim that counsel failed to            juror and the victim’s mother, when Juror Bell stated, “I
  strike a biased juror, Miller must show that the juror was        believe I could be fair about it all. But I do have some
  actually biased against him. Hughes, 258 F.3d at 458.             feelings about her[,]” neither the trial court nor counsel
No. 02-5907                               Miller v. Webb     21    22   Miller v. Webb                               No. 02-5907

inquired further regarding whether she could be fair and                                 ______________
impartial. Without proper follow-up questions directed
toward rehabilitating the juror or obtaining an assurance of                                DISSENT
impartiality, we are left with a situation as in Hughes in which                         ______________
we found actual bias. Although defense counsel asked Juror
Bell about the women’s section at the Warren County Jail, he         JULIA SMITH GIBBONS, Circuit Judge, dissenting.
never inquired about whether she could be fair and impartial       Bell’s statements during voir dire do not demonstrate that she
despite her “feelings.” He never inquired whether she could        was actually biased against Miller, and the majority errs in
determine the case based on the evidence and the trial court’s     concluding otherwise. Therefore, I respectfully dissent.
instructions.      Consequently, the present case is
distinguishable from Miller v. Francis.                              As an initial matter, some clarification is in order with
                                                                   respect to the posture of Miller’s ineffective assistance claim.
                    III. CONCLUSION                                No state court addressed the issue of whether Miller’s
                                                                   counsel’s performance prejudiced him. Consequently, we are
  Because we find counsel’s performance to have been               not constrained under AEDPA by any state court ruling on
objectively unreasonable and we find that impaneling a biased      this matter, and we confront it de novo. See Wiggins v. Smith,
juror prejudiced Miller, the Kentucky Court of Appeals’s           123 S.Ct. 2527, 2542 (2003); Maples v. Stegall, 340 F.3d 433,
determination that Miller’s trial counsel’s performance was        437 (6th Cir. 2003). More specifically, no state court
not constitutionally deficient was an unreasonable application     determined that Bell either was or was not actually biased
of Strickland, which is clearly established federal law. We,       against Miller, which is a question of fact. Fields v.
therefore, REVERSE the district court’s order denying              Woodford, 309 F.3d 1095, 1103 (9th Cir. 2002); see also
Miller’s 28 U.S.C. § 2254 petition, and REMAND the case            Patton v. Yount, 467 U.S. 1025, 1036 (1984) (characterizing
with instructions that the district court order Petitioner         the question of a particular juror’s impartiality as “one of
released from custody unless the State commences a new trial       historical fact”). And while the district court found that Bell
within 180 days.                                                   was not actually biased against Miller, it reached this
                                                                   conclusion solely on the basis of transcripts from state court
                                                                   proceedings; hence, we review the conclusion de novo rather
                                                                   than for clear error. Miller v. Straub, 299 F.3d 570, 579 (6th
                                                                   Cir. 2002).
                                                                      A defendant may prove that his counsel’s failure to strike
                                                                   a juror prejudiced him only by showing “that the juror was
                                                                   actually biased against him.” Miller v. Francis, 269 F.3d
                                                                   609, 616 (6th Cir. 2001) (emphasis added); see also Hughes
                                                                   v. United States, 258 F.3d 453, 458 (6th Cir. 2001)
                                                                   (“Petitioner’s ‘claim of ineffective assistance of counsel is
                                                                   grounded in the claim that counsel failed to strike a biased
                                                                   juror. To maintain a claim that a biased juror prejudiced him,
                                                                   however, [Petitioner] must show that the juror was actually
No. 02-5907                               Miller v. Webb      23    24       Miller v. Webb                                    No. 02-5907

biased against him.’”) (emphasis added and alteration in            demonstrate the actual existence of such an opinion in the
original) (quoting Goeders v. Hundley, 59 F.3d 73, 75 (8th          mind of the juror as will raise the presumption of partiality.”)
Cir. 1995)). “Actual bias is ‘bias in fact’ – the existence of a    (quotation omitted); see also Miller, 269 F.3d at 616-17
state of mind that leads to an inference that the person will not   (noting that it is a defendant’s burden to show actual bias to
act with entire impartiality.” Hughes, 258 F.3d at 463              succeed on an ineffective assistance of counsel claim based
(quotation omitted); see also Murphy v. Florida, 421 U.S.           on failure to strike a biased juror and finding that the
794, 800 (1975) (explaining that a juror is not impartial if        defendant did not meet this burden because the juror at issue
there actually exists “an opinion in the mind of the juror as       expressly indicated that she could decide the case impartially
will raise the presumption of partiality”) (quotation omitted).     and because there was no reason given to doubt this
It is distinct from implied bias, which has been described as       assurance). A juror’s close and ongoing relationship with a
arising only in “extreme situations where the relationship          person involved in the case may undermine the reliability of
between a prospective juror and some aspect of the litigation       her assurance of impartiality. Wolfe, 232 F.3d at 502; see
is such that it is highly unlikely that the average person could    also Miller, 269 F.3d at 616-17 (crediting a juror’s assurance
remain impartial in his deliberations under the                     of impartiality despite her acquaintance with the victim’s
circumstances.” Person v. Miller, 854 F.2d 656, 664 (4th Cir.       mother because “there is no indication from the record that
1988); see also United States v. Wood, 299 U.S. 123, 134            they shared a close personal relationship”). But merely being
(1936) (defining implied bias as “a bias attributable in law to     acquainted with someone involved in the case does not. See
the prospective juror regardless of actual partiality”).            McQueen v. Scroggy, 99 F.3d 1302, 1320 (6th Cir. 1996)
                                                                    (“There is no constitutional prohibition against jurors simply
  A juror is impartial if she can disregard her preconceptions      knowing the parties involved . . . . The Constitution does not
“and render a verdict based on the evidence presented in            require ignorant or uninformed jurors; it requires impartial
court.’” United States v. Angel, 355 F.3d 462, 470 (6th Cir.        jurors.”).
2004) (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)). A
juror’s express assurance that she can do so, although not             Miller does not succeed in demonstrating that Bell was
necessarily conclusive, cf. Wolfe v. Brigano, 232 F.3d 499,         actually biased against him. Bell made numerous express
502 (6th Cir. 2000) (“A court’s refusal to excuse a juror will      assurances during voir dire that she could decide Miller’s case
not be upheld simply because the court ultimately elicits from      fairly. Specifically, in response to the trial court’s question as
the prospective juror a promise that he will be fair and            to whether she could be fair and impartial despite her
impartial.”) (quotation omitted), indicates that she is             familiarity with and feelings for Cline, Bell replied, “I think
impartial. See Angel, 355 F.3d at 470; Miller, 269 F.3d at          I could be fair. I think I could be fair. . . . I believe I could be
616; Hughes, 258 F.3d at 460 (stating that juror assurances of      fair and whether she’s guilty or not guilty. I believe I could
impartiality may be relied upon “in deciding whether a              be fair about it all.”1 These statements are not so equivocal
defendant has satisfied his burden of proving actual                in and of themselves as to be untenable. See Miller, 269 F.3d
prejudice”). If a juror makes such an assurance, the defendant      at 618 (crediting statements by juror that “I think I could be
must demonstrate that it is not to be credited since he bears
the burden of proof on actual bias. See Murphy, 421 U.S. at
800 (“[T]he juror’s assurances that he is equal to [the] task [of        1
deciding a case impartially] cannot be dispositive of the                 Apparently, in stating that she could be fair in determining “whether
                                                                    she’s guilty,” Bell momentarily mistook Cline as being the defendant in
accused’s rights, and it remains open to the defendant to           the case.
No. 02-5907                               Miller v. Webb     25    26   Miller v. Webb                               No. 02-5907

fair” and “I don’t really think that I would be biased”).          never stated that she believed Miller was the murderer. Also,
Indeed, “venire members commonly couch their responses to          as in Celestine, there is no indication that she discussed the
questions concerning bias in terms of ‘I think’” such that “the    crime at issue with Cline.
use of such language cannot necessarily be construed as
equivocation.” Id.                                                   In sum, Miller fails to meet his burden of showing that Bell
                                                                   possessed actual bias against him, and, as a result, he also
   Furthermore, Miller provides no reason to doubt the             fails to meet his burden of showing that his counsel’s failure
validity of Bell’s assurances. As evidenced by the fact that       to strike Bell was prejudicial. Thus, we should affirm the
Bell had not seen Cline in at least a year at the time of voir     district court’s denial of Miller’s ineffective assistance claim
dire, the two did not share a close and ongoing relationship.      and of his petition for a writ of habeas corpus more generally.
Nor is there any reason to believe that Bell’s sympathy for
Cline was so strong as to undermine the reliability of her            The majority, of course, reaches a contrary conclusion. It
assurance that she could evaluate the case fairly and              finds that, although Bell stated “I think I could be fair,” she
impartially. Expressions of sympathy for a victim, without         never made an unequivocal statement of impartiality and, in
more, do not demonstrate actual bias where the juror has           fact, made express statements of partiality. There are
assured the court that she may decide the case fairly. For         numerous problems with this conclusion and the manner in
example, in Ainsworth v. Calderon, 138 F.3d 787, 796 (9th          which the majority reaches it. First, Bell said much more
Cir. 1998), a juror indicated during voir dire that “she was       than “I think I could be fair”:
unsure whether she could disregard the information she had
gathered from news sources and decide the case based only on         I think I could be fair. I think I could be fair. I
the evidence presented at trial.” The defendant sought a             ministered in the women’s section for about four years.
change of venue, which was denied. Id. at 795. On habeas             [Cline] was kind of in and out, but she seemed like she
review, he claimed that this denial was erroneous because the        wanted to do better, but I believe I could be fair and
juror in question was actually prejudiced against him. Id. at        whether she’s guilty or not guilty. I believe I could be
795-96. The court rejected this assertion, noting that there         fair about it all.
was “no indication that [the juror] had the opinion that [the
defendant] was the murderer, and she repeatedly stated she         Far from saying so in an isolated statement, Bell reiterated
could set aside her feelings of sympathy for [the victim] in       again and again that – despite her familiarity with Cline – she
order to judge the case fairly.” Id. at 796; see also Celestine    could decide Miller’s case fairly.
v. Blackburn, 750 F.2d 353, 360 (5th Cir. 1984) (holding that
state court did not err in refusing to dismiss for cause a juror      Additionally, by describing them as statements of partiality,
who knew the granddaughter of the victim because, even             the majority ascribes significance to certain of Bell’s
though her testimony at voir dire indicated her emotions           statements that the words do not justify. For example, the
might affect her ability to deliberate, “she consistently stated   majority latches on to Bell’s initial comments that “I feel like
that her feelings would not so influence her as to prejudice her   I would kind of be partial to Linda Cline” and “I kind of have
against [the defendant]” and “[s]he had not discussed the          sympathy for her in this case, with her being the victim.”
murder with the granddaughter, and she repeatedly denied           First of all, these “kind of” statements are hardly unequivocal.
bias”). As in Ainsworth, Bell repeatedly stated that she could      Second, as discussed, expressions of sympathy for a victim
decide the case fairly despite her sympathy for Cline, and she     do not necessarily demonstrate partiality. Third, the majority
No. 02-5907                                Miller v. Webb      27    28       Miller v. Webb                                      No. 02-5907

injects legal content into Bell’s use of the term “partial,”         Because Miller has not articulated a valid reason to disregard
construing it to mean that she cannot decide the case on the         these statements, they deserve our credence.2
evidence before her and that she is admitting bias against
Miller. However, her full testimony indicates that Bell uses            In reaching its conclusion, the majority analogizes this case
“partial” to indicate sympathy, or having a liking or fondness       to Hughes. The analogy is inapt. In Hughes, the juror
for, Oxford English Dictionary (2d ed. 1989), Cline.                 unequivocally stated during voir dire, “I don’t think I could
Moreover, imputing import to Bell’s use of the word “partial”        be fair.” 258 F.3d at 456. In response, the trial court asked
and to her initial indication of sympathy for Cline                  the juror, “You don’t think you could be fair?”, to which the
conveniently ignores the fact that, after she made these             juror starkly replied, “No.” Id. Most importantly, the juror
statements, the trial court, apparently concerned about Bell’s       never individually stated or suggested whatsoever that she
potential partiality, immediately questioned her about her           could be impartial, either initially or through rehabilitation.
ability to serve on the jury impartially, to which Bell              Id. at 460 (“[The juror] never said that she would be able to
responded repeatedly that she could be fair in deciding              render a fair and impartial verdict.”). Left only with a
Miller’s case.                                                       statement in the record that she could not be fair, this court
                                                                     was able to presume the juror was partial and actually biased
   Ultimately, however, the linchpin of the majority’s               against the defendant. Id.; see also Miller, 269 F.3d at 617
conclusion that Bell unequivocally indicated partiality is the       (“Because the only evidence relevant to the issue of bias [in
fact that, after stating for the last time that she could decide     Hughes] was the juror’s statement that she did not think she
Miller’s case fairly, she said, “But I do have feelings about        could be fair, we had no choice but to find actual bias.”)
[Cline].” While this remark may constitute a statement of            (emphasis added).
partiality in the sense that it evidences empathy for Cline,
Bell is not asserting that she would not be able to decide fairly       The case sub judice could not be more different. Here, Bell
Miller’s guilt or innocence. Rather, the statement was simply        never stated that she did not think she could be fair. Quite the
a reaffirmation of Bell’s earlier statement that “she kind of        contrary, she stated that she believed she could be fair “about
[had] sympathy for Cline, with her being the victim,” a              it all.” And she said so again and again. In an attempt to fit
feeling she repeatedly explained would not affect her ability        this case within the bounds of Hughes, the majority posits that
to decide Miller’s case fairly. At no point did Bell ever            it is “ultimately left with a statement of partiality” without
indicate that her concern for Cline would make her more              “juror assurances of impartiality,” whereas, in reality, we are
likely to accept Cline’s testimony as true, would predispose         left with numerous statements of impartiality without any
her to credit evidence offered against Miller, would lead her        express assertion from Bell that she could not decide the case
to discount testimony offered on Miller’s behalf, or would in
any way incline her to believe that Miller was guilty. The
only express statements we have from Bell regarding her                   2
                                                                           At most, the majority could conclude – though I would still disagree
ability to decide the case are: “I think I could be fair. I think    – that Bell’s statements of feelings toward Cline undermine her assertion
I could be fair. . . . I believe I could be fair and whether she’s   of impartiality, see W olfe, 232 F.3d at 502 (“[T]he sec ond juror’s
guilty or not guilty. I believe I could be fair about it all.”       assessment that she could be fair and impa rtial [is] untenable [] in light of
                                                                     both the close relationship between the juror and the victim’s family, and
                                                                     the fact that she knew the family’s theory of the victim’s death.”), but to
                                                                     characterize them as stateme nts of pa rtiality in and of them selves is
                                                                     unfounded.
No. 02-5907                              Miller v. Webb     29    30    Miller v. Webb                               No. 02-5907

fairly. In other words, what enabled the court in Hughes to       conclusion. In assessing whether a juror was actually biased
presume partiality – a blatant statement of partiality and        against a defendant, we should consider the totality of her
absolutely no contrary statement from the juror that he could     statements, see Hightower v. Schofield, 365 F.3d 1008, 1041
be impartial – is glaringly absent here. Thus, to reach its       (11th Cir. 2004); see also Miller, 269 F.3d at 618
conclusion, the majority contorts the holding of Hughes,          (considering all the statements made by the juror during voir
which stands for the proposition that a juror may be presumed     dire); cf. Pruett v. Norris, 153 F.3d 579, 587 (8th Cir. 1998)
to be actually biased against a defendant when he makes no        (assessing actual prejudice under the totality of the
express statements of impartiality but instead expressly states   circumstances); Stafford v. Saffle, 34 F.3d 1557, 1567 (10th
that he does not believe he can be fair in determining a          Cir. 1994) (“We review actual prejudice by examining the
defendant’s innocence or guilt and no effort is made to           totality of the circumstances.”), not merely the statement that
rehabilitate that juror specifically. The court unjustifiably     comes last-in-time.
extends this holding to allow for a presumption of partiality
even when the juror has made express statements of                  I do not believe that the totality of Bell’s statements
impartiality.                                                     demonstrates that she was actually biased against Miller.
                                                                  Hence, I also believe that Miller’s counsel’s performance was
  The majority also analogizes this case to Wolfe. In Wolfe,      not so objectively unreasonable as to be deficient under
the court found that the trial court erred in failing to excuse   Strickland v. Washington, 466 U.S. 668 (1984). Cf. Miller,
four jurors for cause. 232 F.3d at 502-03. However, each of       269 F.3d at 618-19 (“[T]he trial court cannot be faulted for
these jurors expressly doubted his or her ability to decide the   not disqualifying for cause a juror who consistently says that
case fairly. One juror “did not think he could be a fair and      she thinks she can be fair.”). In conclusion, I would affirm
impartial juror.” Id. at 502. The second juror stated it was      the district court’s denial of Miller’s ineffective assistance of
“hard to say” whether her relationship with the victim’s          counsel claim and, ultimately, its denial of his petition for a
parents would impact her ability to deliberate fairly. Id. The    writ of habeas corpus. Since the majority does otherwise, I
third juror “expressed doubt as to whether she could put aside    respectfully dissent.
[news] reports and decide the case solely on the evidence
presented at trial.” Id. at 502-03. Finally, the fourth juror
“doubted he would require the prosecution to prove its case
beyond a reasonable doubt.” Id. at 503. When asked about
her partiality, Bell expressed no such doubt about her ability
to decide Miller’s case fairly. Wolfe is simply inapposite.
  One final difficulty I have with the majority’s holding is
that it reduces the inquiry into a juror’s actual bias to a
question of chronology. If a juror swears repeatedly that she
can be fair in deciding a defendant’s innocence or guilt but
then indicates in her final statement that she has some degree
of sympathy for the victim, the majority would have it that a
court can only conclude that the juror is actually biased
against the defendant. I simply cannot subscribe to this
