                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 15a0742n.06

                                           No. 14-3516                                  FILED
                                                                                  Nov 09, 2015
                                                                              DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

BOBBY CUTTS, JR.,                                        )
                                                         )
       Petitioner-Appellant,                             )
                                                         )
                                                                 ON APPEAL FROM THE
v.                                                       )
                                                                 UNITED STATES DISTRICT
                                                         )
                                                                 COURT     FOR     THE
KEITH SMITH,                                             )
                                                                 NORTHERN DISTRICT OF
                                                         )
                                                                 OHIO
       Respondent-Appellee.                              )
                                                         )
                                                         )



BEFORE:          COLE, Chief Judge; GIBBONS and STRANCH, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Bobby Lee Cutts, Jr.—an Ohio state prisoner

convicted of two counts of aggravated murder and various other crimes—challenges the district

court’s denial of his petition for a writ of habeas corpus. He claims that the Ohio Court of

Appeals’s rejection of his claim of implied juror bias constituted a decision contrary to, or

involving an unreasonable application of, clearly established federal law. Specifically, he argues

that he is entitled to relief because the trial court should not have allowed a juror to serve after

the juror had participated in a search for the murder victim’s body. We believe the doctrine of

implied juror bias is not clearly established. Even if it were, the circumstances of Cutts’s case

would be insufficient to trigger the doctrine. We therefore affirm the district court’s denial of

habeas relief.
No. 14-3516
Cutts v. Smith

                                                           I.

         Police began searching for Jessie Davis when her mother, Patricia Porter, reported Davis

missing. Porter had been unable to reach Davis and eventually went to her home, where she

found nobody home except Davis’s two-year-old son. Several members of the community

assisted in the search.1

         Cutts—the father of Davis’s son—initially purported to help. But eight days after Davis

was first reported missing, Cutts led officers to the bottom of an embankment in a park, where

they found Jessie’s body. He was arrested and eventually indicted by an Ohio grand jury for the

aggravated murders of Jessie Davis and Davis’s unborn daughter. The indictment also charged

Cutts with two counts of abuse of a corpse, one count of aggravated burglary, and one count of

endangering a child.

         The trial court granted Cutts’s motion to implement certain procedures to insulate

prospective jurors from pre-trial publicity. The court also added some of Cutts’s proposed

questions to the juror questionnaire. In their answers to that questionnaire, three venire members

indicated that they had assisted in the search for Davis. The trial judge denied Cutts’s motion to

remove the three prospective jurors for cause.                   Cutts eventually exhausted his peremptory

challenges and one of the three was seated on the jury. After the jurors were selected, the trial

court denied Cutts’s motion for a change of venue based on alleged juror bias.

         The jury acquitted Cutts of the aggravated murder of Davis but found him guilty of the

lesser included offense of murder. Cutts was also convicted of all the remaining offenses,

including the aggravated murder of Davis’s unborn child. Following a capital sentencing phase,



         1
           This court “accept[s] the state court’s determination of a factual issue unless the petitioner upsets the
presumption by clear and convincing evidence.” Jackson v. Bradshaw, 681 F.3d 753, 759 (6th Cir. 2012). The
material facts presented here are undisputed.

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Cutts v. Smith

the jury did not recommend a death sentence. The court imposed an aggregate sentence of fifty-

seven years to life in prison.

       The Ohio Court of Appeals affirmed Cutts’s conviction and sentence. State v. Cutts, No.

2008CA000079, 2009 WL 2170687, at *34 (Ohio Ct. App. July 22, 2009). The Ohio Supreme

Court declined to hear his appeal. State v. Cutts, 917 N.E.2d 812 (Ohio 2009) (Table). The

United States Supreme Court denied certiorari. Cutts v. Ohio, 560 U.S. 904 (2010) (mem.).

Cutts then filed for a writ of habeas corpus in the Northern District of Ohio, asserting ten

grounds for relief.     The matter was assigned to a magistrate judge, whose report and

recommendation recommended denial of the petition. The district court adopted the report and

recommendation in its entirety and denied relief.

       The district court issued a certificate of appealability on a single ground: Cutts’s claim

that the district court improperly impaneled the juror who had participated in the search for

Davis. This timely appeal addresses that issue.


                                                    II.

       The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a

federal court may not grant a writ of habeas corpus after a state court has adjudicated the case on

the merits unless the state court’s adjudication:

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme
       Court of the United States; or (2) resulted in a decision that was based on an
       unreasonable determination of the facts in light of the evidence presented in the
       State court proceeding.




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28 U.S.C. § 2254(d). The relevant state court decision is “the last state-court decision on the

merits.” Garcia v. Andrews, 488 F.3d 370, 374 (6th Cir. 2007). Here, that is the Ohio Court of

Appeals’s decision from 2009.

       “[T]he phrase ‘clearly established Federal law, as determined by the Supreme Court of

the United States’ . . . . refers to the holdings, as opposed to the dicta, of [the] Court’s decisions

as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000)

(quoting 28 U.S.C. § 2254(d)(1)). A decision is “contrary to” clearly established law if “the state

court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,”

or if “the state court confronts a set of facts that are materially indistinguishable” from a

Supreme Court decision and nevertheless arrives at a different result. Id. at 405–06. An

“unreasonable application” of clearly established federal law occurs “if the state court identifies

the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case.” Id. at 413.

       Habeas relief may be granted only “in cases where there is no possibility fairminded

jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s

precedents.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011). “Put another way, ‘a state

prisoner must show that the state court’s ruling on the claim being presented in federal court was

so lacking in justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.’” Abby v. Howe, 742 F.3d 221, 226

(6th Cir. 2014) (quoting Harrington, 131 S. Ct. at 786–87).

       In reviewing the denial of a habeas petition, we review the district court’s legal

conclusions de novo and its factual findings for clear error. Jackson v. Bradshaw, 681 F.3d 753,

759 (6th Cir. 2012).


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                                                 III.

         Cutts argues that the Ohio Court of Appeals’s decision to affirm his convictions despite

the presence of a juror who had searched for Davis was contrary to, or involved an unreasonable

application of, clearly established federal law as determined by the Supreme Court. Cutts does

not argue that the juror exhibited actual bias. In other words, he does not claim that this juror

was in fact biased toward the prosecution, nor does Cutts point to any evidence in the record that

would suggest as much. Rather, he contends that the simple fact that the juror participated in the

search “evidences the strong likelihood of an improper emotional attachment to the victim” and

should have resulted in the juror’s automatic dismissal. This amounts to a claim of implied bias:

“a conclusive presumption that a juror is biased,” see United States v. Frost, 125 F.3d 346, 379

(6th Cir. 1997), based exclusively on “the relationship between a prospective juror and some

aspect of the litigation,” see Johnson v. Luoma, 425 F.3d 318, 326 (6th Cir. 2005). We must

therefore consider whether the state court’s treatment of the claimed implied bias ran contrary to,

or unreasonably applied, clearly established federal law as determined by the Supreme Court.

         This court has previously held that the implied bias doctrine is not clearly established for

AEDPA purposes. In Johnson v. Luoma, the court’s rejection of a petitioner’s implied bias claim

on habeas review turned in part on the fact that “the continued vitality of the doctrine” was in

doubt. 425 F.3d at 326 (citing Conner v. Polk, 407 F.3d 198, 206 n.4 (4th Cir. 2005)); United

States v. Herndon, No. 99-5642, 2000 WL 1290378, at *4 (6th Cir. Sept. 6, 2000)). Relying on

Johnson, this court again held in Treesh v. Bagley that “doubt over the continued viability of the

doctrine of implied bias” was one reason to deny the habeas claim. 612 F.3d 424, 437 (6th Cir.

2010).




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        These cases bind us. While the § 2254 inquiry looks to the clearly established law

announced by the Supreme Court, our court’s published holdings identifying the content of

clearly established Supreme Court law for § 2254 purposes are binding on future panels. See

Renico v. Lett, 559 U.S. 766, 778–79 (2010); Coles v. Smith, 577 F. App’x 502, 507–08 (6th Cir.

2014) (discussing the impact of Renico); Smith v. Stegall, 385 F.3d 993, 998 (6th Cir. 2004)

(discussing the ways in which Sixth Circuit panels may bind later panels in habeas cases).

        A brief review of the relevant Supreme Court jurisprudence will be helpful to understand

the ambit of our decisions in Johnson and Treesh and will also underscore the key point we made

in those cases: the implied bias doctrine is not clearly established. We need not consider the

more difficult question of whether the doctrine still exists at all. That question would confront us

if we were reviewing a case like this on direct appeal. But the lack of clearly established law

compelled the denial of habeas relief in Johnson and Treesh, and it compels the same outcome

here.

        In Dennis v. United States, 339 U.S. 162 (1950) the Supreme Court held that the

petitioner—the General Secretary of the Communist Party of the United States tried for failing to

comply with a subpoena requiring appearance before the House Committee on Un-American

Activities—was not entitled to the automatic removal of any juror who happened to be a

government employee. Preservation of the opportunity to show actual bias adequately protected

the defendant’s Sixth Amendment right to an impartial jury. See id. at 171–72. The Court

refused to imply bias, even in light of the petitioner’s claim that a government employee would

be likely to side with the government to preserve the appearance of loyalty when determining the

guilt of an individual deemed subversive to the government. Id. at 171; see also Frazier v.

United States, 335 U.S. 497, 511–13 (1948) (refusing to imply bias when the jury in a drug trial


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Cutts v. Smith

was composed entirely of government employees); United States v. Wood, 299 U.S. 123, 133–34

(1936) (refusing to imply bias by government employees selected for a larceny trial in the

District of Columbia).

       The Supreme Court has implied bias, however, in subsequent cases involving extreme

circumstances. In Turner v. Louisiana, 379 U.S. 466 (1965), for example, deputy sheriffs who

were the two key witnesses against the defendant also drove the jury to dinner and spent time

with them outside the courthouse. Id. at 468. The Court recognized that the relationship “could

not but foster the jurors’ confidence” in the deputies, and that the defendant’s “fate depended

upon how much confidence the jury placed in these two witnesses.” Id. at 474. Bias was

implied without the need for any further showing. Id.

       In Remmer v. United States, 347 U.S. 227 (1954), where an outsider remarked to a juror

that he could profit by finding in favor of the defendant, the Supreme Court held that private

communications with jurors in criminal cases were “deemed presumptively prejudicial.” Id. at

229. The Court made clear that “[t]he presumption is not conclusive, but the burden rests

heavily upon the Government to establish . . . that such contact with the juror was harmless to the

defendant.” Id. After Turner and Remmer, then, it was clear that the Court would imply bias in

some extreme situations.

       In the leading habeas case of Smith v. Phillips, 455 U.S. 209 (1982), the Court introduced

a level of uncertainty that has remained unresolved in more than three decades since. During the

course of the trial in that case, a juror applied for a job in the district attorney’s office that was

prosecuting the case. Id. at 212–13. The Supreme Court held that habeas relief was unavailable

because the petitioner received due process in a post-trial hearing and failed to show actual bias.

Id. at 217–18. Justice William Rehnquist’s majority opinion emphasized: “[D]ue process does


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not require a new trial every time a juror has been placed in a potentially compromising

situation.” Id. at 217. Trial courts can seek to “prevent prejudicial occurrences.” Id. Crucially,

the majority continued, it is the task of the trial court to “determine the effect of such occurrences

when they happen” by way of a hearing. Id. The majority opinion made no mention of the

possibility of implied bias arising as a result of a juror’s connection to the case or its participants.

        In a separate concurrence, Justice Sandra Day O’Connor agreed that the defendant’s

postconviction hearing was adequate to preclude relief on the facts of the case. Id. at 221–24

(O’Connor, J., concurring). But she also stated:

        Because there may be circumstances in which a postconviction hearing will not be
        adequate to remedy a charge of juror bias, it is important for the Court to retain
        the doctrine of implied bias to preserve Sixth Amendment rights. I read the
        Court’s opinion as not foreclosing the use of implied bias in appropriate situations
        ....

Id. at 224.

        We need not consider further the issue of the continued viability of the implied bias

doctrine. It has not been overruled, and perhaps the Supreme Court will consider the issue in the

future. For our purposes, it is sufficient to reaffirm our holdings in Johnson and Treesh that the

implied bias doctrine is not clearly established for the purposes of § 2254. We follow those

cases and hold that Cutts is unable to show a violation or unreasonable application of clearly

established law here.

                                                  IV.

        Even if the implied bias doctrine constituted clearly established law, Cutts would not

prevail. A successful habeas claim under that theory would still require a showing that the trial

court’s failure to imply bias in the specific circumstances of Cutts’s trial constituted “an error

well understood and comprehended . . . beyond any possibility for fairminded disagreement.”

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Abby, 742 F.3d at 226 (internal quotation marks omitted).             Thus, Cutts would need to

demonstrate that the juror’s connection to the case or the parties was so extreme as to clearly

require automatic removal of the juror without further inquiry. Cutts has not done so.

       “In those circuits that recognize the principle of implied bias, resort to it has been limited

‘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.’” Sanders v. Norris, 529 F.3d 787, 792 (8th Cir.

2008) (quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988)). Justice O’Connor provided

some examples of sufficiently extreme circumstances: “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.”    Phillips, 455 U.S. at 222 (O’Connor, J., concurring); see Sanders,

529 F.3d at 792 (“When determining whether bias should be presumed, courts often refer to

Justice O’Connor’s concurring opinion in Phillips.”). None of these apply on their face to

Cutts’s case. And though we have authority under AEDPA to apply general principles beyond

the precise scenarios in which the Supreme Court has used those principles, see Pannetti v.

Quarterman, 551 U.S. 930, 953 (2007), we are not persuaded that any of Justice O’Connor’s

categories apply here by appropriate analogy or extrapolation.

       There is no suggestion that the challenged juror in Cutts’s case had a familial or

employment relationship with any participant in the case. But Cutts claims that the juror’s

participation in the search demonstrates some emotional allegiance to the victim that gives rise to

as great a possibility of bias as a juror who is “a witness or somehow involved in the criminal

transaction.” See Phillips, 455 U.S. at 222 (O’Connor, J., concurring). A person could, indeed,


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join a search out of a personal connection to the victim. Conceivably, also, participating in the

search could engender, not just reflect, some emotional attachment to the victim.

        Nonetheless, this situation carries a far lower possibility of bias compared to a witness or

a person involved in the crime. A person may have a variety of other motives for joining a

search besides a personal connection, not least a sense of duty as a citizen and concern for a

fellow human.      And participation in the search would not necessarily create emotional

attachment. Even if it did, it would not necessarily give rise to bias in favor of the prosecution

and against the defendant. Compare this to a witness to the alleged crime, who would almost

certainly struggle to impartially decide the case based on the evidence presented rather than her

own recollection of the events. Partiality would be even more likely if the juror were involved in

the criminal transaction. Such a person may have preexisting prejudices in addition to strong

self-interested motives for preferring one version of the facts over another. We believe these

would weigh much more strongly in the mind of an average juror than the participation in a

fruitless search for the victim.

        Even when a juror was actually present when the victim’s body was found, our sister

circuit—while recognizing that the doctrine may exist in principle—refused to imply bias.

Sanders, 529 F.3d at 793. Cutts argues that a different connection existed in that case: the juror

was the county coroner who had a professional connection to the victim, see id. at 790, while the

average citizen’s role in a search suggests an emotional connection. As already discussed, it is

not necessarily true that an emotional connection would exist. Even if it did, it is not necessarily

more likely to create bias than a professional connection. The coroner’s presence in Sanders,

coupled with his expertise, may have caused him to form his own opinions about the

circumstances of the victim’s death. This could not have happened in the present case because


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nothing came of the search. A professional connection also existed in Conner v. Polk, 407 F.3d

198 (4th Cir. 2005), where the juror in a retrial had reported on the first trial in her role as a

journalist. Again, we believe that this connection—and the pre-existing knowledge and views

the juror likely had as a result—was more extreme than the connection in Cutts’s case. And yet,

the Fourth Circuit refused to imply bias in Conner. Id. at 206–07.

       These cases further demonstrate that the facts of Cutts’s case do not clearly give rise to an

implication of bias. Although the juror was “placed in a potentially compromising situation,” see

Phillips, 455 U.S. at 217 (majority opinion)—and although the trial judge would have been more

prudent to remove the juror for cause—this does not permit habeas relief. As a result, even if we

were convinced that the implied bias doctrine were clearly established, fairminded jurists would

not agree that the circumstances fall within one of the extreme categories in which the

implication may arise. Clearly established law would still only entitle Cutts to the opportunity to

prove actual bias, an opportunity the trial court afforded him.

                                                V.

       Finally, Cutts suggested at oral argument that the decision of the Ohio Court of Appeals

involved “an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding,” see 28 U.S.C. § 2254(d)(2), because the juror outwardly demonstrated

an attachment to the victim. This contention fails for several reasons. First, it was not raised in

the briefs. “[I]n this circuit we routinely deem arguments waived when raised only verbally and

not in the written briefs . . . .” Lamson & Sessions Co. v. Peters, 576 F. App’x 538, 543 (6th Cir.

2014). Second, for reasons already discussed, we believe the Ohio Court of Appeals was not

unreasonable in the way that it viewed the juror’s involvement in the search for the victim—it

was not severe enough to clearly require reversal, even though “the better practice would have


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been to excuse any such prospective juror for cause.” See State v. Cutts, 2009 WL 2170687, at

*33. Third, any additional fact-finding concerning the juror would seem to go to actual bias.

Cutts is only challenging the state court’s decision on implied bias. Finally, even if we were to

consider actual bias, the record does not include voir dire transcripts or any other materials that

would allow us to determine whether the challenged juror in fact harbored pro-prosecution bias

that would have required removal for cause. Considering whether the facts were unreasonably

determined requires “an independent review of the record.” Howard v. Bouchard, 405 F.3d 459,

468 (6th Cir. 2005).

                                                VI.

       For the above reasons, we affirm the district court’s denial of habeas relief.




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