                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-6-2004

Brown v. Warden SCI Retreat
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2619




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"Brown v. Warden SCI Retreat" (2004). 2004 Decisions. Paper 525.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/525


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                                                         NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              _______________

                                     No. 03-2619
                                  ________________

                                   DAVID BROWN,

                                           v.
                                                               Appellant

                               WARDEN, SCI-RETREAT

                      ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                                (D.C. No. 98-cv-01961)
                     District Judge: Honorable A. Richard Caputo
                    _______________________________________

                     Submitted Under Third Circuit LAR 34.1(a)
                                June 29, 2004
            Before: AMBRO, BECKER and GREENBERG, Circuit Judges


                                  (Filed July 6, 2004)


                              _______________________

                                     OPINION
                              _______________________

BECKER, Circuit Judge.

      This is an appeal by defendant David Brown from an order of the District Court

denying his petition for habeas corpus under 28 U.S.C. § 2254. Brown is a state prisoner
currently serving a sentence of imprisonment for burglary, assault, and related offenses.

He contends that his state court trial counsel rendered ineffective assistance when he

failed to seek the removal of a juror who had been the victim of a burglary and had, on

another occasion, been threatened with a handgun. Although the District Court agreed

that counsel’s representation was deficient, it denied relief on the ground that Brown had

failed to prove prejudice in terms of actual bias against the defendant. Brown argues that

the District Court erred in utilizing an “actual bias” standard rather than an “implied bias”

standard, and that, even if an “actual bias” standard is the correct one, the District Court

erred in its application of the standard. Because the parties are fully familiar with the

background facts and procedural history we need not set them forth, and limit our

discussion to our ratio decidendi. For the reasons that follow, we will affirm.

       The evidentiary hearing conducted by the District Court contained the following

testimony by Mr. Bobb, the juror whose putative bias was the primary basis of the habeas

challenge concerning burglary of Bobb’s home, which he conceded made his wife feel

insecure: “Mr. Brown wasn’t involved in that crime [the one against M r. Bobb], so I’m

not going to hold anything against him.” Additionally, in response to the Court’s

question: “Had you been asked about that [being threatened with a gun], would that have

colored your judgment, in any way, as far as you rability to listen to the evidence and

decided the case, based on the evidence that you heard and the instructions that the court

gave?,” Bobb replied “no.” Bobb also testified that “he [the appellant] wasn’t the one



                                              2
who burglarized my house, so I was going in there with a fair and open mind.” With

respect to the other incident, occurring about five or six years prior to Brown’s trial, an

individual the Bobbs were buying a house from threatened Bobb with a gun, but Bobb

testified that this incident would not have colored his judgment in any way, and that he

would be able to listen to the evidence and decide the case based on the evidence and the

Court’s instructions.

       Brown’s contention that this case should be governed by an implied bias standard,

see Smith v. Phllips, 455 U.S. 209, 221 (1982) ( O’Connor, J., concurring), is legally

frivolous. As we noted in United States v. Calabrese, 942 F.2d 218 (3d Cir.1991),

application of the doctrine of implied bias is “‘limited in application to those extreme

situations where the relationship between a prospective juror and some aspect of the

litigation is such that it is highly unlikely that the average person could remain impartial

in his deliberations under the circumstances.’” Id. at 226 n.3 (quoting Person v. Miller,

854 F.2d 656, 664 (4th Cir. 1988)). That standard simply does not “fit” the facts here,

which are light years from the facts of Smith. Thus the actual bias standard applies.

       In determining whether a juror is (actually) biased, a court should consider factors

such as: the objective similarities between the events, the effects of the crime on the

juror’s life, and the passage of time since the crime. See, e.g., Gonzales v. Thomas, 99

F.3d 978, 990-91 (10th Cir. 1996). Bobb’s testimony at the District court’s evidentiary

hearing establishes that the situations were dissimilar. First, Bobb’s house was



                                              3
burglarized while he was not at home, unlike the victims in Brown’s case. Second, two

years had passed. Finally, but for Bobb’s wife feeling insecure, the incident had little or

no effect on Bobb’s life. The second incident (involving the gun threat) also had no

influence on Bobb’s life. Applying de novo review to Brown’s ineffective assistance of

counsel claim, see United States v. Cross, 308 F.3d 308, 314 (3d Cir. 2002) (citing

Duncan v. Morton, 256 F.3d 189, 200 (3d Cir. 2001)), we are satisfied that juror Bobb

was not actually biased, and hence there was no prejudice flowing from his counsel’s

putative ineffective assistance. The order of the District Court denying Brown’s

application for a writ of habeas corpus will be affirmed.




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