                                                                                FILED
                            NOT FOR PUBLICATION                                 JUL 09 2012

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DANIEL PATRICK BENJAMIN,                          No. 11-15048

              Petitioner - Appellant,             D.C. No. 2:03-cv-01166-FCD-
                                                  KJN
       v.

KATHLEEN PROSPER; T. RANSDALL;                    MEMORANDUM *
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,

              Respondents - Appellees.

                    Appeal from the United States District Court
                       for the Eastern District of California
                 Frank C. Damrell, Senior District Judge, Presiding

                      Argued and Submitted February 13, 2012
                             San Francisco, California

Before: THOMAS, FISHER and IKUTA, Circuit Judges.

      Daniel Benjamin appeals the denial of his 28 U.S.C. § 2254 habeas corpus

petition challenging his state court convictions for petty theft with a prior

conviction and possession of ephedrine or pseudoephedrine with intent to

manufacture methamphetamine. We affirm.


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Benjamin asserts that he was denied his right to an impartial jury and that his

trial counsel was ineffective for his failure to exercise a peremptory challenge to

exclude an allegedly biased juror, “No. 8025.” During voir dire, the following

colloquy took place between the prosecutor and the juror:

      Q: Could you sit and hear this case on the facts that we present and the
      evidence that we present and not think about your microwave and your
      door?
      A: No. Because its like once you get to a certain point I hate to say it,
      he’s kind of made it here. To me if he’s made it here, he’s either running
      with the wrong group that are doing that or he’s guilty.
      Q: Would you be able to sit here and hear the evidence and if I do not
      prove the case, return a not guilty verdict?
      A: No. Because he’s got strikes against him already just because he’s
      here.
      Q: Just because he got arrested?
      A: Yeah.
      Q: Would you agree that everybody in this country has the right to have
      a case proven against them beyond a reasonable doubt?
      A: Not in all cases.

In chambers, the attorneys challenged No. 8025 for cause. The trial court rejected

the challenge, stating an initial conclusion that No. 8025 was answering the

questions in a specific manner in hopes of being excused from the panel. Neither

attorney exercised a peremptory challenge, and No. 8025 was placed on the jury.

      1.     Right to an Impartial Jury.

      A state trial court’s finding of impartiality is “presumptively correct under

28 U.S.C. § 2254[(e)(1)].” Smith v. Phillips, 455 U.S. 209, 218 (1982). Here, the

trial judge, after observing all juror comments and behaviors, was in the best
position to judge the sincerity of No. 8025’s claims of partiality. Under AEDPA, a

habeas petitioner bears the heavy burden of “rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Benjamin

has not presented sufficient evidence to meet this burden. See United States v.

Quintero-Barraza, 78 F.3d 1344, 1350 (9th Cir. 1996). Benjamin’s reliance on

Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) (en banc), is misplaced. Dyer was

not decided under AEDPA’s deferential standard of review, and in any case, Dyer

involved a juror feigning impartiality in order to be seated on the jury, rather than a

juror, like No. 8025, feigning bias in order to avoid jury service. See Green v.

White, 232 F.3d 671, 677-78 (9th Cir. 2000).

      2.     Ineffective Assistance of Counsel.

      To prove a violation of the Sixth Amendment’s requirement of effective

assistance of counsel, a habeas petitioner must establish that (1) his attorney’s

representation fell below an objective standard of reasonableness and (2) but for

his attorney’s errors, there is a reasonable probability that the result of the

proceeding would have been different. See Strickland v. Washington, 466 U.S.

668, 687-88 (1984). Because reasonable explanations existed for counsel’s

decision not to exercise a peremptory challenge to excuse No. 8025, Benjamin has

not met his burden under the “doubly deferential” AEDPA standard of showing


                                            3
that the state court was objectively unreasonable in denying his ineffective

assistance of counsel claim. Yarborough v. Gentry, 540 U.S. 1, 6 (2003); see

Strickland, 466 U.S. at 689-90 (“[A] defendant must overcome the presumption

that, under the circumstances, the challenged action ‘might be considered sound

trial strategy.’ There are countless ways to provide effective assistance in any

given case. Even the best criminal defense attorneys would not defend a particular

client in the same way.” (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955))).

Here, retaining No. 8025 may have been a reasonable tactical decision because, in

addition to the trial court’s stated assessment that No. 8025’s answers were made

in hopes of being excused, the record shows he may have harbored resentment

toward law enforcement officers.

      AFFIRMED.




                                          4
                                                                              FILED
Benjamin v. Prosper; No. 11-15048                                              JUL 09 2012

                                                                          MOLLY C. DWYER, CLERK
THOMAS, Circuit Judge, dissenting:                                          U .S. C O U R T OF APPE ALS




        The Supreme Court has instructed that “the remedy for allegations of juror

partiality is a hearing in which a defendant has the opportunity to prove actual

bias.” Smith v. Phillips, 455 U.S. 209, 215 (1982). In this case, a juror professed

his actual bias. He told the trial court that he would be unable to return a not guilty

verdict even if the state failed to prove its case. Both the government and the

defense challenged the juror for cause. However, the trial court did not hold a

hearing. Rather, it simply speculated that the juror was just trying to avoid jury

duty.

        There are only two possibilities: the juror was actually biased or the juror

was lying to the trial court. Even under AEDPA’s deferential review, I conclude

that the trial court erred by not holding an evidentiary hearing on the juror’s self-

expressed actual bias.

        The failure of Benjamin’s counsel to make a peremptory challenge to the

juror also warrants federal habeas relief. To be sure, defense counsel is permitted

wide latitude in making strategic choices. However, “[a]lthough defense counsel is

empowered to make such strategic decisions, Strickland demands that such

decisions be reasonable and informed.” Jennings v. Woodford, 290 F.3d 1006,



                                           -1-
1014 (9th Cir. 2002).

      There is also a difference in our review under AEDPA as to whether a

counsel’s decision was strategic or not. There are two potentially relevant

inquires: (1) “[w]hether the state court reasonably determined that there was a

strategic decision” and (2) “whether the strategic decision itself was a reasonable

exercise of professional judgment under Strickland.” Wood v. Allen, __ U.S. __,

130 S.Ct. 841, 851 (2010) .

      There is nothing in the state court record to indicate that defense counsel

made a strategic choice in failing to make a challenge, and no state court made

such a finding. So, we are not faced with the question of whether to defer to a state

court finding that a decision was tactical.

      Thus, the only issue before us is “whether the strategic decision itself was a

reasonable exercise of professional judgment under Strickland.” Id. Defense

counsel had already sought the juror’s removal for cause for actual bias. Benjamin

has continuously argued in his state and federal court pleadings that the juror was

biased. The record is devoid of any reasonable explanation of why defense counsel

would allow a self-described biased juror to remain on the panel after he stated that

he would be unable to return a not guilty verdict. As a result of the trial counsel’s

failure to exercise a peremptory challenge, “the jury panel contained at least one



                                          -2-
juror who was biased.” Davis v. Woodford, 384 F.3d 628, 643 (9th Cir. 2004).

Therefore, Benjamin is entitled to federal habeas relief.

      For these reasons, I respectfully dissent.




                                          -3-
