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

                                                                                FILED
                                      No. 12-41442                         August 1, 2014
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff - Appellee
v.

FERRELL DAMON SCOTT,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:11-CV-143


Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner Ferrell Damon Scott appeals from the district court’s denial of
his 28 U.S.C. § 2255 motion seeking relief from his sentence. We AFFIRM.
                      FACTS AND PROCEDURAL HISTORY
       An indictment charged Ferrell Damon Scott, federal prisoner # 27797-
177, with one count of conspiring to possess with intent to distribute in excess
of 1,000 kilograms of marijuana and three counts of possessing in excess of 100
kilograms of marijuana. After a four-day jury trial with co-defendant Artis


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Miller, the jury found Scott guilty on all counts. Scott was sentenced to life
imprisonment.    This court affirmed the convictions and sentences of both
defendants. United States v. Miller, 384 F. App’x 419 (5th Cir. 2010).
      After his conviction was affirmed on appeal, Scott filed in the district
court a pro se request for documents. He claimed that his counsel informed
him of possible juror misconduct prior to his sentencing. He sought court
documentation regarding an interview he believed the district court had
conducted in chambers nearly eight months after the jury’s verdict.          The
district court denied Scott’s request in March 2011. Two weeks later, Scott
filed a pro se motion seeking to unseal court records regarding the identity of
the relevant juror and seeking information on the juror-misconduct hearing.
He asserted that his counsel had informed him that the district court had
conducted a post-trial investigation regarding a romantic relationship between
a juror, “Jane Doe,” and the Assistant United States Attorney (“AUSA”) who
prosecuted Scott.    Scott believed a conference occurred in chambers on
February 11, 2009, and that the juror was interviewed by the court on
February 17, 2009. The jury trial had ended on July 29, 2008.
      In an order denying the motion, the district court explained that it had
learned “long after the conclusion of Scott’s trial” that a juror in Scott’s case
contacted one of the AUSAs involved in the prosecution. When the AUSA
discovered that she was a former juror, he ceased contact and notified the
district court. The district court determined that because the contact involved
allegations of juror misconduct, as opposed to juror tampering, an ex parte
hearing was appropriate, relying on United States v. Sylvester, 143 F.3d 923,
932-33 (5th Cir. 1998). The district court notified defense counsel and “held an
ex parte hearing where the juror was interviewed.” At the hearing, the court
confirmed “that there had been no inappropriate contact between the
prosecution and the juror prior to or during the trial.”
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      Because the contact had occurred exclusively after the trial, the district
court found it unnecessary to hold an evidentiary hearing. The district court
also determined that the only remaining concern was “if the juror was
somehow improperly influenced by an attraction to the AUSA that developed
during the trial.” The district court characterized this as an “internal matter”
that it could not explore in light of Rule 606(b) of the Federal Rules of Evidence.
      Scott then filed this Section 2255 motion.       Scott contended that his
counsel was ineffective for failing to develop and present evidence that the
juror must have been untruthful during voir dire by concealing an attraction
to the AUSA. He argued that the trial court was required to hold a post-trial
evidentiary hearing when reasonable grounds for an investigation exist. He
further claimed that counsel was ineffective for failing to develop a record
regarding this issue. Scott also contended that it was improper for the district
court to hold a hearing without notice and without having the proceedings
transcribed. Scott requested that counsel be appointed. Scott provided various
exhibits with his motion, including a declaration in which he reported the
information that his attorney had provided regarding this issue.
      The district court did not hold an evidentiary hearing. In a lengthy
order, the district court reiterated its finding that the contact between the juror
and the AUSA was post-trial only. The district court found that if the juror
became attracted to the AUSA, that “developed during the four days of trial
and after she was sworn and not during the relatively brief . . . jury selection
hearing.” Consequently, Jane Doe would not have had reason during voir dire
to identify a bias of this sort.
      The district court concluded the “ex parte nature of the hearing” was
proper: “Once the Court examined Jane Doe, it became readily apparent that
there was no juror misconduct in this case.” Although it regretted that it did
not have the hearing recorded, the district court stated that nothing in the
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statute governing recording of court proceedings “required the Court to record
the hearing because the hearing was held in chambers and the parties did not
request that the hearing be recorded.” See 28 U.S.C. § 753(b). “In short, the
Court’s failure to cause the hearing to be recorded was imprudent, but it was
not illegal.”
      The district court addressed each of Scott’s arguments and denied relief.
It then, sua sponte, granted a Certificate of Appealability (“COA”) on whether
it was “now necessary to conduct a hearing in open court on the record to re-
establish that the only contact between Jane Doe and the AUSA was post-
trial.” On appeal, Scott moved for an expansion of the COA grant. This court
granted Scott a COA on these additional issues: did the district court err, in its
original consideration of juror bias, by failing to conduct an evidentiary hearing
and by not investigating the juror’s feelings for the AUSA; whether the juror’s
bias in favor of the Government deprived him of a fair trial; whether counsel
was ineffective for failing to develop and present the claim that he was denied
the right to a fair trial; and whether the district court abused its discretion by
denying his Section 2255 motion without holding an evidentiary hearing. We
will consider the issue for which the district court granted a COA as part of our
analysis of this final question posed in the expanded COA.
                                 DISCUSSION
      Each of the issues covered by the COA relate to Scott’s Sixth Amendment
right to an impartial jury. “The Sixth Amendment requires that in all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury.” Solis v. Cockrell, 342 F.3d 392, 395 (5th Cir. 2003). The
Sixth Amendment does not prescribe a specific test as to what constitutes
impermissible juror bias. Id. Bias is largely context specific; it can be actual
in some instances, but it also can be implied, sometimes from an undisclosed
relationship between a party and a juror. Id. The remedy for implied bias is
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a new trial. Id. at 400 n.44. Implied bias cases warranting a new trial occur
only in “extreme situations.” Id. at 395.
      I.    Whether the district court should have conducted an evidentiary
            hearing regarding Jane Doe’s in-trial thoughts or feelings toward
            the AUSA
      An evidentiary rule establishes the limited scope of permissible inquiry
into the validity of a verdict or indictment:
      [D]uring an inquiry into the validity of a verdict or indictment, a
      juror may not testify about any statement made or incident that
      occurred during the jury’s deliberations; the effect of anything on
      that juror’s or another juror’s vote; or any juror’s mental processes
      concerning the verdict or indictment. The court may not receive a
      juror’s affidavit or evidence of a juror’s statement on these matters.
FED. R. EVID. 606(b)(1).
      This rule permits juror testimony about whether “extraneous prejudicial
information was improperly brought to the jury’s attention,” “an outside
influence was improperly brought to bear on any juror,” or “a mistake was
made in entering the verdict on the verdict form.” FED. R. EVID. 606(b)(2).
      The district court determined that Rule 606(b) would not permit an
inquiry into whether “the juror was somehow improperly influenced by an
attraction to the AUSA that developed during the trial.” It relied on a Supreme
Court decision that Rule 606(b) prevented a post-verdict hearing as to whether
jurors were intoxicated during the trial and jury deliberations. Tanner v.
United States, 483 U.S. 107, 127 (1987). The Tanner Court distinguished
between testimony related to influence caused by extrinsic factors, such as a
bribe, which is admissible post-trial, and testimony about intrinsic factors,
such as a juror’s thought processes, which is inadmissible. Id. at 116-24. The
Court determined intoxication was an intrinsic matter, and Rule 606(b)
prevented the jurors from testifying about how their alleged intoxication
affected their mental processes concerning the verdict. Id. at 127.

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      Scott relies on a slightly earlier Supreme Court opinion in which a juror
had submitted a job application to the prosecutor’s office before being selected
as a juror in a case that office was prosecuting. Smith v. Phillips, 455 U.S. 209,
212 (1982). When the prosecutor questioned the jurors during voir dire about
their biases, the juror did not disclose his application.      Id. at 213.   The
defendant later discovered these facts and sought relief on the ground of jury
misconduct. Id. at 212-14. The Supreme Court stated “that the remedy for
allegations of juror partiality is a hearing in which the defendant has the
opportunity to prove actual bias.” Id. at 215. Scott argues that the district
court should have granted him a hearing in which he could have attempted to
prove Jane Doe’s partiality based on her alleged attraction to the AUSA.
      In the present case, the district court concluded that Jane Doe’s possible
attraction to the AUSA is more analogous to Tanner than to Phillips. We
agree. Jane Doe’s feelings about the AUSA are intrinsic -- whatever they were,
they developed during and within the trial. In Smith, the alleged bias arose
from the juror’s pre-trial contact with the district attorney’s office, and the
juror failed to disclose his job application during voir dire. See Smith, 455 U.S.
at 213. There are no allegations here that Jane Doe had any knowledge of the
AUSA before trial or made any contact with him until after trial.
      Rule 606(b) prohibits testimony about the “mental processes concerning
the verdict or indictment.”     Scott is trying to explore Jane Doe’s mental
processes.   The district court correctly determined that a hearing was
unnecessary.




      II.    Whether Scott’s allegation that Jane Doe was attracted to the AUSA
             during trial constitutes implied bias



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      Scott argues that the relationship that allegedly arose after trial is
evidence that Jane Doe was impliedly biased during trial. We agree that Jane
Doe’s efforts to develop a relationship with the AUSA after trial may support
that she had developed an attraction to him during trial.
      Scott wishes us to apply the principle of implied bias, articulated in a
Supreme Court concurrence but then adopted by this circuit:
             The Sixth Amendment requires that in all criminal
      prosecutions, the accused shall enjoy the right to a speedy and
      public trial, by an impartial jury. The Amendment prescribes no
      specific tests. The bias of a prospective juror may be actual or
      implied; that is, it may be bias in fact or bias conclusively
      presumed as [a] matter of law. Solis’s claim focuses only on juror
      Tellez’s alleged implied bias — not on any actual bias. In her
      concurrence in Smith v. Phillips, Justice O’Connor reasoned that
      while in the vast majority of cases a hearing to determine whether
      the juror was actually biased against the defendant is
      constitutionally sufficient, in certain instances a hearing may be
      inadequate for uncovering a juror’s biases. In those extreme
      situations, a court may find the juror biased as a matter of law.
      Examples of such circumstances might include a revelation that
      the juror is an actual employee of the prosecuting agency, that the
      juror is a close relative of one of the participants in the trial or the
      criminal transaction, or that the juror was a witness or somehow
      involved in the criminal transaction.

Solis, 342 F.3d at 395 (quotation marks, citations, and footnotes omitted). The
Fifth Circuit has held that implied bias is a valid construct and applied it to a
situation in which a juror did not disclose during voir dire that his brother was
a deputy in the sheriff’s office that investigated the crime. United States v.
Fred Scott, 854 F.2d 697, 698-700 (5th Cir. 1988).
      We cannot equate an attraction that a juror developed during trial for
one of the attorneys or parties, or a distaste for any of them, to situations of
developed relationships such as those of family or professional connections.
Jane Doe’s feelings for an attorney, developed during trial, led to contact post-

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trial. The feelings, though, may be little different in kind even if in degree to
the rapport that lawyers consciously seek to develop with all, or at least some,
jurors. There is no evidence here that the AUSA in this case was intending to
bond subtly with any of the jurors, but if Scott’s theory of implied bias is
correct, it is doubtful that intent would matter.
      We leave implied-bias principles for extreme situations of existing
relationships that were undisclosed during voir dire, with the possibility of the
field of implied bias expanding on the right facts. These are not such facts.
      III.    Whether Scott’s attorney was ineffective by failing to pursue a juror
              bias claim after trial
      Scott contends that his counsel was ineffective for failing to develop a
record regarding the juror bias issue. He further argues that appellate counsel
rendered ineffective assistance by failing to raise this issue on direct appeal.
To prevail on his claim that counsel rendered ineffective assistance, Scott must
show that his “counsel’s performance was deficient” and that “the deficient
performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984).
      Because Scott’s juror-bias claim fails as a matter of law, Scott cannot
demonstrate either that his counsel performed deficiently by failing to pursue
it or that he was prejudiced by this failure. Scott’s attorney was not ineffective
by failing to pursue this claim.
      IV.     Whether the district court abused its discretion by denying Scott’s
              Section 2255 motion without holding an evidentiary hearing
      The district court granted a COA on whether it was “necessary to conduct
a hearing in open court on the record to re-establish that the only contact
between Jane Doe and the AUSA was post-trial.” This court’s expansion of the
COA is broad enough to encompass the district court’s COA issue of whether
an evidentiary hearing should have been held as part of the Section 2255
proceedings. We consider both issues together now.
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      A district court is to grant a “prompt hearing” on a Section 2255 motion
“[u]nless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). The district
court’s decision to deny an evidentiary hearing is reviewed for an abuse of
discretion. United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992).
Conclusory allegations are insufficient to require a hearing, and a defendant
must produce independent indicia of the likely merit of his allegations. United
States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006).
      As we have already explained, Rule 606(b) prohibits testimony about
“any juror’s mental processes concerning the verdict or indictment,” and juror
bias cannot be implied from Jane Doe’s alleged post-trial relationship with the
AUSA. FED. R. EVID. 60(b). Rule 606(b) thus forecloses Scott’s argument that
the court should have allowed Jane Doe to testify about her rationale to
support the guilty verdict. Insofar as Scott was seeking testimony regarding
the nature and extent of the post-trial interaction between Jane Doe and the
AUSA, that testimony would be irrelevant to any issue in this case.
      The district court did not abuse its discretion by failing to hold an
evidentiary hearing pursuant to Section 2255(b).
      AFFIRMED.




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