                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit Rule 206
                                     File Name: 09a0417p.06

                UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


                                                X
                       Petitioner-Appellant, -
 MICHAEL STEVEN HOLDER,
                                                 -
                                                 -
                                                 -
                                                     No. 07-1440
          v.
                                                 ,
                                                  >
                                                 -
                       Respondent-Appellee. -
 CARMEN PALMER,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Eastern District of Michigan at Detroit.
              No. 04-73245—Victoria A. Roberts, District Judge.
                                    Argued: June 17, 2009
                           Decided and Filed: December 9, 2009
                                                                                          *
       Before: MOORE and GILMAN, Circuit Judges; PHILLIPS, District Judge.

                                    _________________
                                          COUNSEL
ARGUED: Ariel B. Waldman, WILMER CUTLER PICKERING HALE and DORR
LLP, Washington, D.C., for Appellant. Mark G. Sands, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Ariel B.
Waldman, WILMER CUTLER PICKERING HALE and DORR LLP, Washington, D.C.,
for Appellant. William C. Campbell, Eric Restuccia, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
       PHILLIPS, D. J., delivered the opinion of the court, in which GILMAN, J.,
joined. MOORE, J. (pp. 20-26), delivered a separate dissenting opinion.




        *
        The Honorable Thomas W. Phillips, United States District Judge for the Eastern District of
Tennessee, sitting by designation.


                                                1
No. 07-1440         Holder v. Palmer                                               Page 2


                                     _________________

                                         OPINION
                                     _________________

       THOMAS W. PHILLIPS, District Judge. Petitioner was convicted in a jury trial
of sexual penetration with an uninformed partner by a person infected with acquired
immunodeficiency syndrome (AIDS), in violation of Mich. Comp. Laws § 333.5210, and
sentenced to 120-180 months imprisonment. Petitioner appeals the district court’s
judgment denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254.
Petitioner contends that he received ineffective assistance of counsel when his counsel
failed to challenge the seating of jurors whose voir dire responses showed them to be
racially biased.

       We conclude the district court correctly found that the state courts’ decisions
reasonably comport with clearly established federal law. For the following reasons, we
AFFIRM the decision of the district court and DENY the Writ.

                                            I.

       Holder was charged by the State of Michigan with sexual penetration without
informing his partner that he had the Human Immunodeficiency Virus (HIV), and
brought to trial in Bay County Circuit Court. Holder is African-American. His partner,
Monica Kosecki, is white.

       Holder’s counsel prepared a questionnaire that the trial court agreed to administer
to prospective jurors, to determine whether they might harbor prejudices that would
disqualify them from a trial in which an African-American man was accused of a sexual
crime against a white woman. Five of the jurors revealed possible biases against
African-Americans or against Holder in their responses during voir dire. Relevant
portions of the voir dire, including the efforts the court and Holder’s counsel made to
rehabilitate these jurors, follow:
No. 07-1440        Holder v. Palmer                                                    Page 3


A.     Examination of Juror Flynn
       THE COURT: Questions were asked [in the jury questionnaire] whether
       or not any – either you or a member of your family was a victim of a
       crime and, if so, whether or not the other person was of a different race.
       And you said – answered “yes,” and that sometimes you view other races
       as – as below your standards because of the acts (sic) taken place.
When the trial court questioned Juror Flynn further about the crime, she stated that a
Hispanic man had stolen something from her father.

       THE COURT: Okay. And you made the comment that you think –
       black men deal with hate or revenge with violence more so than other
       races. The fact that Mr. Holder, the defendant who’s on trial, is black,
       is that going to have any effect on how you would judge this case and
       how you – you would decide on a verdict?
       JUROR FLYNN: No, I don’t believe so at all.
       THE COURT: Okay. Can you see if I read these, why it might appear
       that you might be prejudiced against a Hispanic or a black person?
       JUROR FLYNN: Ya, I can – I can see that, yes.
       THE COURT: Okay. But you don’t feel that you are?
       JUROR FLYNN: No, not at all.
       THE COURT: Would it be safe to kind of say that you kind of view it
       as a fact that maybe more crimes are committed by a non-Caucasian than
       Caucasian, do you – is that the way you feel?
       JUROR FLYNN: I believe so, yes.
The court then asked whether “that fact alone” was “gonna make [her] decide the case
on [her] feelings instead of the evidence that would come in front of [her].” Juror Flynn
replied that it would not, and also said that race would not affect her verdict.

       Holder’s counsel later examined Juror Flynn about her answers to other
questions, and the examination included the following exchange:

       COUNSEL: I just want to, in my own mind, clarify an answer that you
       have written in your questionnaire. And this is a – a question that I think
       Judge Bielawski talked to you about in – in great detail. But I want to
       get a little bit more information from you about your particular answer.
       And that’s the question dealing with the fact that – and I’ll just read it so
No. 07-1440        Holder v. Palmer                                                     Page 4


       that there’s no – there’s nothing that – that I don’t say exactly like the
       questionnaire did:
       The defendant in this case is a black man who is accused of having sex
       with a white woman without telling her that he had the HIV virus. Based
       upon this information, have your already formed an opinion about him
       and, if so, what is your opinion?
       And your answer was: “Yes. This is a deadly disease. He took her life
       into his hands by putting her at risk. He’s a horny coward.”
       Now, Judge Bielawski talked to you about the presumption of innocence
       and – and if you had to make a decision right now based upon what you
       know, what your – what the verdict would have to be, or what your
       decision would have to be.
       Were you – did the word “accused,” was that the word that did it for you
       as far as your answer?
       JUROR FLYNN: Yes, –
       COUNSEL: Okay.
       JUROR FLYNN: – definitely.
       COUNSEL: So, based upon what he’s gone over previously regarding
       that, would you – would your answer be any different now than what you
       wrote?
       JUROR FLYNN: Yes, definitely . . . I believe that, yes, everyone is
       innocent until proven guilty.
B.     Examination of Juror Coppinger
       THE COURT: Miss Coppinger, you answered – or – the questionnaire
       stated that you thought that a person should stay within their own race
       and it saves a lot of heartache; that you don’t care for basically interracial
       relationships. Do you think the fact that there we – this case does
       involve interracial relationships, that that’s going to affect how your
       decide the case or influence you on your verdict?
       JUROR COPPINGER: No, I don’t think it would influence. I’m more
       or less saying what my standard is for myself and – I have two girls – for
       my girls.
The court then asked the Juror Coppinger to consider what her views would be if one of
her daughters began dating a black man who was “head of the business department at the
college . . . a very nice person, never been married, very polite, makes a nice income,
No. 07-1440        Holder v. Palmer                                                  Page 5


and thinks the world of your daughter,” while the other daughter was dating a white man
with “long, greasy hair, earrings in his nose and his tongue and his ears, and tattoos all
over his body,” who, when asked what he did said “Well, Man, I’m just takin’ it cool and
doin’ whatever.” The court then asked:

       THE COURT: And you look at the two guys and what do you think?
       I – if you had to choose –
       Would – sometimes, Miss Coppinger, would you agree that your values
       and your choices in life change with the circumstances?
       JUROR COPPINGER: Yes. That wouldn’t be easy!
       THE COURT: Pardon? Can you –
       JUROR COPPINGER: That wouldn’t be easy!
       THE COURT: – can you talk into the microphone?
       JUROR COPPINGER: That wouldn’t be easy!
       THE COURT: That’s right. And it just may be that if your daughters
       married these two individuals which I stated, you could have one of the
       most wonderful son-in-laws in the world and one of the biggest bums
       that you ever saw in the world.
       JUROR COPPINGER: That’s right.
       THE COURT: And, over a period of time, the issue of race may fade
       into the background, correct?
       JUROR COPPINGER: That’s true.
       THE COURT: Okay. Do you agree with that?
       JUROR COPPINGER: Yes, I do.
       THE COURT: Okay. But I think from your comments there, that you’d
       just as soon not try that scenario, right?
       JUROR COPPINGER: Yes.
       THE COURT: Okay. But going back to your questions and the issues
       that are going to come up in this case, is the race of the different people
       that are gonna testify here, is that gonna be an issue about when you
       decide the ultimate verdict is – is the defendant guilty or innocent?
       JUROR COPPINGER: No, I don’t think it’d affect my judgment. Like
       I said, I’m pretty open-minded.
No. 07-1440       Holder v. Palmer                                                   Page 6


       THE COURT: Okay. If you remember, I talked to one of the other
       jurors when she said, “I don’t think.” I’m not asking what you think, I
       want to –
       JUROR COPPINGER: That’s how I feel.
       THE COURT: Okay. I need a commitment from you that you can
       assure the court that you will be fair and impartial and that race is not
       gonna affect your verdict. Can you give me that commitment?
       JUROR COPPINGER: Yes, I can.
       THE COURT: And you feel comfortable doing that?
       JUROR COPPINGER: Yes.
Holder’s counsel did not question Juror Coppinger.
C.     Examination of Juror Moore
       THE COURT:            Regarding the questions regarding interracial
       relationships, you said basically “it’s up to them,” which means it’s their
       business?
       JUROR MOORE: That’s right.
       THE COURT: But then you went on to say they should not have
       children. Why did you feel that way?
       JUROR MOORE: Well, I feel that children would be a mixed breed.
       It’s just some – I think that they might suffer for it down the road. Their
       children would be – don’t know if they’re – what breed they really are!
       THE COURT: They won’t know – were you gonna say you – they don’t
       know whether they’re Caucasian, black, or whatever –
       JUROR MOORE: That’s right.
       THE COURT: – mix?
       JUROR MOORE: That’s right, that’s right.
       THE COURT: And your grandparents, were they born in the U.S.
       JUROR MOORE: No, they weren’t.
       THE COURT: And where were they born?
       JUROR MOORE: Germany.
       THE COURT: Both of ‘em?
       JUROR MOORE: Um hum.
No. 07-1440       Holder v. Palmer                                                Page 7


       THE COURT: You aware that early on in our country, people that came
       over here, they felt that the Germans should only date Germans the
       Polish should only date Polish?
       JUROR MOORE: Probably!
       THE COURT: Okay. And how would – how do you feel about those
       old ideas?
       JUROR MOORE: I – I guess nationalities are different. I don’t know
       why, but it’s something I guess I was brought up with.
       THE COURT: Okay. And why do you make a distinction between
       nationality and race?
       JUROR MOORE: The color I believe.
       THE COURT: Okay. Just the fact that someone can see it, where
       nationalities you can’t.
       JUROR MOORE: Yes.
       THE COURT: Okay. And the fact that we have a black man on trial as
       a defendant and claiming to have had intercourse with a white woman,
       is that something that is going to bother or –
       JUROR MOORE: I don’t think so.
       THE COURT: – affect your verdict?
       JUROR MOORE: No sir.
       THE COURT: And you’re sure of that?
       JUROR MOORE: Positive.
       THE COURT: You think you can be fair and impartial?
       JUROR MOORE: Yes, I can.
       THE COURT: You’re not gonna think that “I’m gonna find him guilty
       just because I don’t think a black man should be having intercourse with
       a white woman?”
       JUROR MOORE: Well, like I said, I believe it’s their business.
Holder’s counsel did not question Juror Moore.
D.     Examination of Juror Heaslip
       THE COURT: . . . Miss Heaslip, when we asked the question about the
       fact that defendant is accused of –
No. 07-1440        Holder v. Palmer                                                  Page 8


       JUROR HEASLIP: Yes.
       THE COURT: – a – a certain act, and you put down “I would say he’s
       guilty.” Well, first, you thought “I think he was guilty,” and then you put
       down “I – I would say he is guilty!”
       JUROR HEASLIP: I know just readin’ it, he’s accused. And I didn’t
       really think of that right away. But I couldn’t accuse him without
       hearin’, you know, –
       THE COURT: Okay.
       JUROR HEASLIP: – everybody’s innocent until proven guilty.
       THE COURT: So, you read the question same as –
       JUROR HEASLIP: Yes, –
       THE COURT: Miss Loveless, right?
       JUROR HEASLIP: – yes, I did!
The court told Juror Heaslip to consider the defendant innocent until proven guilty and
Juror Heaslip said that she would.

E.     Examination of Juror Loveless
       THE COURT: Miss Loveless, you put down – “what are your feelings
       regarding interracial relations” – you put down “unacceptable to me, but
       I do respect the others to pursue one if they choose.”
       JUROR LOVELESS: Yes.
       THE COURT: The fact that you would not want to be involved in an
       interracial relationship, would that have anything to do on how you
       would decide on a verdict in this case?
       JUROR LOVELESS: No, your Honor, it would not.
       THE COURT: Okay. And – and we asked a question and we stated
       some of the facts of this case that the defendant, Mr. Holder, is a black
       man, and he’s accused of having sex with a woman, who’s Caucasian.
       And the People claim that he was HIV positive and didn’t tell her. And
       they asked if you had an opinion based upon those facts alone.
       Now, did you understand when I explained to you the “presumption of
       innocence?”
       JUROR LOVELESS: Yes, I did. Yes, I did, your Honor. Sorry.
No. 07-1440        Holder v. Palmer                                                 Page 9


       THE COURT: That’s all right. I’m sure after a couple of hours, we’ll
       get it down!
       Did you notice when the question was asked, it said the defendant was
       accused of this act, that you weren’t to assume that this was true?
       JUROR LOVELESS: As I sat here yesterday, I specifically thought
       about that question and the wording, and wished that I’d had the
       opportunity to re-answer that because I think I was remiss in reading into
       the question –
       THE COURT: Okay. But –
       JUROR LOVELESS:            – in a way that may not be intended by the
       questions.
       THE COURT: Okay. I think what you’re probably telling me is you –
       you kind of read, glanced through it, and you missed the word
       “accused?”
       JUROR LOVELESS: Ya, I think I probably did.
       THE COURT: Okay. The fact that a person is accused of a crime and
       now taking into consideration the presumption of innocence, if a person
       is accused of a crime, what is your opinion regarding his guilt or
       innocence, with that – those – that information alone?
       JUROR LOVELESS: He would be innocent until proven specifically
       in – in – in my opinion in the court as – as guilty.
The court instructed Juror Loveless to presume the defendant innocent until proven
guilty and she said she would do so.

       Each of the jurors stated under oath and on the record that they could set aside
their opinions and decide the case on the evidence despite their views on interracial
relationships. Only Juror Flynn expressed unfavorable opinions about non-Caucasian
men relative to the commission of crimes in society in her questionnaire, and ultimately
she also stated that she could put those opinions aside in order to assist in rendering a
fair decision in the case. Defense counsel did not challenge any of these five jurors, and
they later deliberated on the verdict. The jury found petitioner guilty as charged.

       Petitioner appealed his conviction as a matter of right to the Michigan Court of
Appeals and raised three issues: (1) whether he received ineffective assistance of counsel
No. 07-1440        Holder v. Palmer                                               Page 10


when his attorney failed to challenge biased jurors for cause and when counsel failed to
object to the trial court’s imposition of sentence because it exceeded the statutory
guidelines; (2) whether the trial judge erred in failing to recuse himself when he
sentenced petitioner on a separate charge in 1993 and warned petitioner at that time that
if he got out of prison and committed another felony, he could face life imprisonment;
and (3) whether the trial court erred in departing from the statutory sentencing guidelines
when imposing sentence upon petitioner.

       On the same day petitioner filed his brief in support of appeal on September 13,
2002, he also filed a motion to remand with the Michigan Court of Appeals relative to
the ineffective assistance of counsel and sentencing issues. On October 25, 2002, the
motion was denied. On November 14, 2002, the prosecutor filed her own motion to
remand with respect to the issue of re-sentencing. The motion was granted and on
remand, petitioner was re-sentenced to 7-1/2 to 15 years on February 5, 2003.            A
supplemental brief was filed by petitioner after remand with the Court of Appeals on
April 30, 2003, with regard to another sentencing issue. However, on September 16,
2003, in an unpublished opinion, the Michigan Court of Appeals affirmed petitioner’s
conviction and sentence.      People v. Holder, No. 238501, 2003 WL 22138282
(Mich.App. Sept. 16, 2003).

       Petitioner filed a motion for reconsideration on September 30, 2003, which was
denied on October 27, 2003. Appealing the Michigan Court of Appeals’ decision
affirming his conviction, petitioner filed an application for leave to appeal with the
Michigan Supreme Court, which raised the same issues as those presented before the
Court of Appeals. Petitioner’s application was denied on April 9, 2004. People v.
Holder, 469 Mich. 1036; 677 N.W.2d 328 (Table) (Mich. Apr. 9, 2004).

       On August 23, 2004, petitioner filed an application for writ of habeas corpus in
the United States District Court for the Eastern District of Michigan. The district court
denied his petition for a writ of habeas under 28 U.S.C. § 2254. The district court
subsequently denied petitioner’s request for a certificate of appealability (COA). This
court construed petitioner’s notice of appeal as an application for a COA, pursuant to
No. 07-1440         Holder v. Palmer                                               Page 11


Fed.R.App.P. 22(b). On January 18, 2008, this court granted petitioner’s application for
a COA on whether he received ineffective assistance of counsel when his attorney failed
to challenge certain jurors for cause on the basis that they were biased.

                                            II.

        This court reviews de novo the district court’s legal conclusions in granting or
denying a petition for a writ of habeas corpus. Slaughter v. Parker, 450 F.3d 224, 232
(6th Cir. 2006). This court usually reviews findings of fact for clear error, “but when the
district court’s decision in a habeas case is based on a transcript from the petitioner’s
state court trial, and the district court thus makes no credibility determination or other
apparent findings of fact, the district court’s factual findings are reviewed de novo.”
Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir. 2000). And because petitioner filed his
habeas petition in 2004, the provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) apply. Barker v. Yukins, 1999 F.3d 867, 871 (6th Cir. 1999)
(AEDPA applies to petitions filed after April 24, 1996).

        AEDPA prohibits this court from granting a state prisoner’s habeas petition
unless the state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States; or . . . was based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

        A state court decision is “contrary to clearly established Federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a question
of law or if the state court confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrives at a different result.” Slaughter, 450 F.3d
at 232. A state court decision unreasonably applies federal law “if the state court
identifies the correct governing legal principle from the Supreme Court’s decisions but
unreasonably applies that principle to the facts.” Id. (citing Williams v. Taylor, 529 U.S.
362, 407-08 (2000)).
No. 07-1440        Holder v. Palmer                                              Page 12


       A federal habeas court may not issue a writ under the unreasonable-application
clause “simply because that court concludes in its independent judgment that the relevant
state court decision applied clearly established federal law erroneously or incorrectly.”
Bell v. Cone, 535 U.S. 685, 694 (2002) (quoting Williams, 529 U.S. at 411). The
question under AEDPA is not “whether a federal court believes the state court’s
determination was incorrect but whether that determination was unreasonable – a
substantially higher threshold.” Owens v. Guida, 549 F.3d 399, 404 (6th Cir. 2008)
(quoting Schiro v. Landrigan, 550 U.S. 465 (2007)).

       Under AEDPA, the initial inquiry is whether petitioner seeks to apply a rule of
law that was clearly established at the time of his conviction in the state court. See
Williams, 529 U.S. at 412. Petitioner seeks to apply the Supreme Court’s holding in
Strickland v. Washington, 466 U.S. 668 (1984), which the Supreme Court had clearly
established at the time of his conviction, to show ineffective assistance of counsel. The
Court in Strickland established a two-prong test to evaluate claims of ineffective
assistance of counsel pursuant to the Sixth Amendment. First, the petitioner “must show
that counsel’s representation fell below an objective standard of reasonableness. Judicial
scrutiny of counsel’s performance must be highly deferential, and a fair assessment of
attorney performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689. A court
considering a claim of ineffective assistance of counsel “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.”    Id.   Second, the petitioner must show that counsel’s
performance prejudiced the petitioner. That is, the petitioner must “show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. When a biased juror is impaneled, however,
“prejudice under Strickland is presumed, and a new trial is required.” Hughes v. United
States, 258 F.3d 453, 457 (6th Cir. 2001).
No. 07-1440         Holder v. Palmer                                                Page 13


        Petitioner argues that it was ineffective assistance of counsel for his trial counsel
to fail to challenge the seating of the five jurors whose voir dire responses showed them
to be biased against interracial relationships. Pursuant to the Sixth and Fourteenth
Amendments, a criminal defendant is guaranteed the right to an impartial and unbiased
jury. Morgan v. Illinois, 504 U.S. 719, 727 (1992). “Among the most essential
responsibilities of defense counsel is to protect his client’s constitutional right to a fair
and impartial jury by using voir dire to identify and ferret out jurors who are biased
against the defense.” Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001); see also
United States v. Blount, 479 F.2d 650, 651 (6th Cir. 1973) (“The primary purpose of the
voir dire of jurors is to make possible the empaneling of an impartial jury through
questions that permit the intelligent exercise of challenges by counsel”).

        Counsel, however, is granted deference when conducting voir dire. Hughes, 258
F.3d at 457. “An attorney’s actions during voir dire are considered to be matters of trial
strategy . . . . A strategic decision cannot be the basis for a claim of ineffective
assistance unless counsel’s decision is shown to be so ill-chosen that it permeates the
entire trial with obvious unfairness.” Id. Despite this strong presumption that counsel’s
decisions are based on sound trial strategy, it is insufficient for counsel to simply
articulate a reason for an omission or act alleged to constitute ineffective assistance of
counsel. “The trial strategy itself must be objectively reasonable.” Miller, 269 F.3d at
616 (citing Strickland, 466 U.S. at 681).

        A trial court’s management of voir dire is granted similar deference. The
Supreme Court has acknowledged the “traditionally broad discretion accorded to the trial
judge in conducting voir dire.” Mu’Min v. Virginia, 500 U.S. 415, 423 (1991). A trial
court’s management of voir dire, however, is “subject to essential demands of fairness.”
Hughes, 258 F.3d at 457. Because a petitioner’s Sixth Amendment right to an impartial
jury is at stake, “a defendant may obtain a new trial if an impaneled juror’s honest
responses to questions on voir dire would have given rise to a valid challenge for cause.”
Id. “Challenges for cause are subject to approval by the court and must be based on a
finding of actual or implied bias.” Id.
No. 07-1440         Holder v. Palmer                                                Page 14


        Pursuant to the Sixth Amendment, for a finding of juror impartiality when a juror
is challenged for cause, the relevant question is “did the juror swear that he could set
aside any opinion he might hold and decide the case on the evidence, and should the
juror’s protestation of impartiality have been believed.” Patton v. Yount, 467 U.S. 1025,
1036 (1984). In Patton, the Supreme Court found that the trial court did not commit
“manifest error” when finding jury members to be impartial. Eight of the fourteen jurors
in question, due to pretrial publicity, “admitted that at some time [prior to trial] they had
formed an opinion as to [defendant’s] guilt.” Id. at 1029-30. One of the impaneled
jurors “stated at voir dire that he would have required evidence to change his mind about
[defendant’s] guilt.” Id. at 1030-31.

        A qualified juror need not be “totally ignorant of the facts and issues involved.”
Murphy v. Florida, 421 U.S. 794, 800 (1975). Rather, “it is sufficient if the juror can lay
aside his impression or opinion and render a verdict based on the evidence presented in
court.” Id. In Murphy, the Supreme Court found that defendant had “failed to show that
. . . the jury-selection process of which he complains permits an inference of actual
prejudice.” Id. at 803. One juror agreed, on voir dire, with the characterization that
“[m]y experience of [defendant] is such that right now I would find him guilty.” Id. at
802. Another juror responded during voir dire that defendant’s prior convictions would
“probably” influence her verdict. A third juror conceded that “it would be difficult,
during deliberations, to put out of [the juror’s] mind that [defendant] was a convicted
criminal.” Id. at 805. Because juror impartiality is a factual determination, the state
court’s findings are entitled to a presumption of correctness. 28 U.S.C. § 2254; see
Wainwright v. Witt, 469 U.S. 412, 428-29 (1985).          A trial judge’s finding of juror
impartiality may only be overturned where manifest error is shown. Patton, 467 U.S.
at 1031.

        Because petitioner’s claim for ineffective assistance of counsel is based on his
trial counsel’s failure to strike the allegedly biased jurors, petitioner must show that the
jurors were actually biased against him. Hughes, 258 F.3d at 458. Holder must show
through a review of voir dire testimony that a “fair trial was impossible.” Ritchie v.
No. 07-1440         Holder v. Palmer                                               Page 15


Rogers, 313 F.3d 948, 952 (6th Cir. 2002). “A juror’s express doubt as to her own
impartiality on voir dire does not necessarily entail a finding of actual bias. The
Supreme Court has upheld the impaneling of jurors who had doubted, or disclaimed
outright, their own impartiality on voir dire.” Hughes, 258 F.3d at 458; see also Patton,
467 U.S. at 1025. Bias in this context is “actual bias, or bias in fact: the existence of a
state of mind that leads to an inference that the person will not act with impartiality.”
Hughes, 258 3d at 463.

        In Hughes, the petitioner similarly claimed that his trial counsel was ineffective
for failing to remove a biased juror. During voir dire, the judge asked the potential
jurors whether they thought they could be fair. One of the jurors responded that she had
a nephew and a couple of friends on the police force with whom she was quite close. Id.
at 456. When the court asked the juror if those relationships would prevent her from
being fair in the case, she responded, “I don’t think I could be fair.” Id. We held that,
while a juror’s express doubt as to her ability to be impartial on voir dire does not
necessarily result in a finding of actual bias, actual bias was present in that case because
neither counsel nor the trial court responded to the juror’s express statement that she
could not be fair. Id. at 458-59. Neither counsel nor the trial court asked follow-up
questions directed toward rehabilitating the juror or obtaining assurances of impartiality.
Because the only evidence relevant to the issue of bias was the juror’s statement that she
did not think she could be fair, we had no choice but to find actual bias. Id. at 460. We
further concluded that counsel’s failure to respond to the juror’s express admission of
bias on voir dire was objectively unreasonable under Strickland. Id. at 462.

        This case presents facts far different from Hughes. Here, the trial court, as well
as defense counsel, questioned the jurors regarding whether they could be both fair and
impartial. Each of them stated under oath and on the record that they could set aside
their opinions and decide the case on the evidence despite their views on interracial
relationships. Unlike the juror in Hughes, the jurors here never stated that they could not
be fair and impartial. What enabled this court in Hughes to presume partiality – a blatant
statement of partiality and absolutely no contrary statement from the juror that she could
No. 07-1440          Holder v. Palmer                                              Page 16


be impartial – is absent here. Each of the five jurors consistently answered that they
could set their opinions aside and decide the case upon the evidence presented,
presuming the defendant innocent.

        In another case decided by this court, Wolfe v. Brigano, 232 F.3d 499 (6th Cir.
2000), the petitioner claimed that the trial court violated his Sixth Amendment right to
an impartial jury when it refused to remove four biased jurors for cause. One juror “did
not think he could be a fair and impartial juror.” Id. The second juror stated it was
“hard to say” whether her relationship with the victim’s parents would impact her ability
to deliberate fairly. Id. The third juror “expressed doubt as to whether she could put
aside [news] reports and decide the case solely on the evidence presented at trial.” Id.
Finally, the fourth juror “doubted he would require the prosecution to prove its case
beyond a reasonable doubt.” Id. at 503. We found that the trial court erred in failing to
excuse these four jurors for cause. Id. at 502. However, each of these jurors expressly
doubted his or her ability to decide the case fairly.

        Here, Holder provides no reason to doubt the validity of the jurors’ assurances.
Nor is there any reason to believe that the jurors’ opinions about interracial relationships
were so strong as to undermine the reliability of their assurances that they could put their
opinions aside and evaluate the case fairly and impartially. In assessing whether a juror
was actually biased against a defendant, this court considers the totality of the juror’s
statements. See Miller, 269 F.3d at 618 (considering all the statements made by the juror
during voir dire).     Here, the totality of the jurors’ statements during voir dire
demonstrate that the jurors unequivocally stated that they would consider Holder
innocent until proven guilty, that they would set aside any personal opinions, and decide
the case only on the evidence submitted. “To hold that the mere existence of any
preconceived notion as to the guilt or innocence of the accused, without more, is
sufficient to rebut the presumption of a prospective juror’s impartiality would be to
establish an impossible standard. It is sufficient if the juror can lay aside his impression
or opinion and render a verdict based on the evidence presented in court.” Irvin v.
Dowd, 366 U.S. 717, 723 (1961). The question of juror impartiality is largely one of
No. 07-1440        Holder v. Palmer                                               Page 17


credibility, and thus, the trial court’s determination is entitled to “special deference.”
Patton, 467 U.S. at 1038. The “ultimate question is whether the juror swore that he
could set aside any opinion he might hold and decide the case on the evidence.” That
is what occurred here. Although the five jurors at issue initially expressed bias against
interracial relationships, upon further questioning, each one unequivocally stated that he
or she could set aside any previously formed opinion and decide the question of Holder’s
guilt based on the evidence presented in court. In light of the special deference given
to a trial judge’s determination of juror impartiality as well as the deferential standard
for reviewing factual findings under § 2254, we cannot say that the Michigan court’s
ruling on this issue was unreasonable.

       The dissent emphasizes that the Michigan Court of appeals, when analyzing this
claim, cited a Michigan case for the contention that defense counsel’s failure to
challenge a juror may not form the basis of an ineffective assistance of counsel claim.
As the dissent notes, this contention is not consistent with the Strickland standard. But
this mistaken analysis of Strickland’s performance prong does not move the state court’s
decision out from under AEDPA, as the dissent claims. The fact remains that the state
court applied the Strickland standard to Holder’s claim and addressed that claim on the
merits. By doing so, that court’s decision is entitled to deference under AEDPA. See
28 U.S.C. § 2254(d) (explaining that “any claim that was adjudicated on the merits in
State court proceedings” is subject to AEDPA deference).

       The law requires such deference to be given even in cases, such as this one,
where the state court’s reasoning is flawed or abbreviated. See Neal v. Puckett, 286 F.3d
230, 246 (5th Cir. 2002) (en banc) (“[O]ur focus on the ‘unreasonable application’ test
under Section 2254(d) should be on the ultimate legal conclusion that the state court
reached and not whether the state court considered and discussed every angle of the
evidence.”); Hurtado v. Tucker, 245 F.3d 7, 20 (1st Cir. 2001) (“The ultimate question
is not how well reasoned the state court decision is, but whether the outcome is
reasonable . . . . [E]ven a poorly reasoned state opinion does not mean that the outcome
represents an unreasonable application.”); Hemmon v. Cooper, 109 F.3d 330, 334-35
No. 07-1440         Holder v. Palmer                                               Page 18


(7th Cir. 1997) (“”It doesn’t follow that the criterion of a reasonable determination is
whether it is well reasoned. It is not. It is whether the determination is at least
minimally consistent with the facts and circumstances of the case.”); see also Harris v.
Stovall, 212 F.3d 940, 943 (6th Cir. 2000) (giving AEDPA deference to a Michigan
Court of Appeals’s “summary denial” of a claim despite the lack of any reasoning).

        Both the Supreme Court and this court, moreover, have found no actual bias
where the evidence of bias was much stronger than the five jurors’ expressed disapproval
of interracial relationships. See Patton, 467 U.S. at 1029 (holding that the trial court did
not commit manifest error by finding the jurors to be impartial, even though eight jurors
admitted that, due to pretrial publicity, at some time prior to trial, they had formed an
opinion as to defendant’s guilt); see also United States v. Pennell, 737 F.2d 521, 529
(6th Cir. 1984) (holding that there was inadequate evidence of actual bias where five
jurors received threatening, late-night phone calls telling them to find the defendant
guilty, and one juror stated that the phone calls might influence her judgment in the
case). If the evidence in Patton and Pennell was not adequate to establish actual bias,
then the five jurors’ comments about interracial relationships were certainly not
sufficient to establish bias in the instant case.

        Holder has presented no evidence that the five jurors were actually biased, nor
that they were untruthful when each juror stated that he or she could be impartial and
decide the case on the facts. Therefore, the court finds that Holder has failed to
demonstrate either that his trial counsel’s failure to challenge the five jurors “permeated
the entire trial with obvious unfairness,” Hughes, 258 F.3d at 457, or that the trial court
committed plain error by allowing the five jurors to serve on the jury. No “actual bias”
or “bias in fact” has been shown on the record in accordance with applicable United
States Supreme Court and federal law. Although defense counsel’s decision to leave the
five jurors on the panel might have been ill-advised, criminal defense lawyers should be
given broad discretion in making decisions during voir dire. “Few decisions at trial are
as subjective or prone to individual attorney strategy as juror voir dire, where decisions
are often made on the basis of intangible factors.” Miller, 269 F.3d at 620. Holder’s
No. 07-1440        Holder v. Palmer                                              Page 19


challenge to the state court’s decision under the Strickland test does not reach the high
threshold established by AEDPA for the granting of habeas relief. Therefore, the
Michigan Court of Appeals’ decision to affirm Holder’s conviction was neither contrary
to nor an unreasonable application of federal law.

                                          III.

       For the foregoing reasons, we AFFIRM the district court’s judgment and DENY
the Writ.
No. 07-1440        Holder v. Palmer                                               Page 20


                                  _________________

                                       DISSENT
                                  _________________

       KAREN NELSON MOORE, Circuit Judge, dissenting. Because I believe that
at least three of the impaneled jurors showed actual bias and that their assurances of
impartiality should not have been believed, I would hold that Holder’s trial counsel’s
failure to challenge the seating of these jurors constituted ineffective assistance of
counsel and that Holder is entitled to a writ of habeas corpus. In my view, the Michigan
Court of Appeals applied a decisional rule that was contrary to clearly established
Supreme Court precedent as set forth in Strickland v. Washington, 466 U.S. 668 (1984),
and this court should therefore review the merits of Holder’s claim de novo. However,
even if the deferential standard of review provided by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d)(1), did apply in this case, I believe
that the Michigan Court of Appeals unreasonably applied clearly established Supreme
Court precedent when it held that trial counsel’s failure to challenge the seating of these
jurors was not objectively unreasonable.

                            I. STANDARD OF REVIEW

       Because this case is governed by AEDPA, this court may not grant a writ of
habeas corpus on a claim adjudicated on the merits in state court unless the 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.
28 U.S.C. § 2254(d)(1)-(2). A state-court decision is “contrary to” federal law “if the
state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a
question of law or if the state court decides a case differently than [the Supreme] Court
has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,
No. 07-1440         Holder v. Palmer                                                Page 21


412-13 (2000). And “[a] state court decision will certainly be contrary to [the Supreme
Court’s] clearly established precedent if the state court applies a rule that contradicts the
governing law set forth in [Supreme Court] cases.” Id. at 405 (emphasis added). For
example, a state-court decision would be contrary to clearly established federal law “if,
in spite of the rule in [Strickland]—that a petitioner urging ineffective assistance of
counsel need only show a ‘reasonable probability’ of prejudice—a state court required
the petitioner to show prejudice by a preponderance of the evidence.” Fulcher v. Motley,
444 F.3d 791, 799 (6th Cir. 2006) (quoting Williams, 529 U.S. at 405-06). When a state
court applies a decisional rule that is contrary to Supreme Court precedent, the
deferential standard of review of § 2254(d)(1) does not apply and de novo review is
appropriate. See Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir. 2006) (Gilman, J.) (“When
the state court issues a decision that is contrary to federal law, we review the merits of
the petitioner’s claim de novo.”); Fulcher, 444 F.3d at 799 (same); Magana v. Hofbauer,
263 F.3d 542, 551 (6th Cir. 2001) (same).

        In rejecting Holder’s ineffective-assistance claim, the Michigan Court of Appeals
applied a decisional rule that was contrary to Strickland. Although the Michigan Court
of Appeals applied a state-law standard that was generally similar to Strickland, it found
in the Michigan case law an exception that required it to reject Holder’s claim. The
court stated that “defense counsel’s failure to challenge a juror may not form the basis
for a claim of ineffective assistance of counsel.” Joint Appendix (“J.A.”) at 24 (Mich.
Ct. App. Op. at 2) (citing People v. Robinson, 397 N.W. 2d 229, 231 (Mich. Ct. App.
1986)). Strickland contemplates no such exception, nor has one been recognized in
subsequent decisions of the Supreme Court. Moreover, this court has applied Strickland
to grant relief based upon counsel’s failure to challenge a biased juror. See, e.g., Miller
v. Webb, 385 F.3d 666, 678 (6th Cir. 2004); Hughes v. United States, 258 F.3d 453, 464
(6th Cir. 2001).

        The Supreme Court has made clear that state-court decisions that alter or add
additional requirements to Strickland should be rejected as contrary to federal law. In
Williams, the Court concluded that the Virginia Supreme Court applied a standard that
No. 07-1440             Holder v. Palmer                                                             Page 22


was contrary to Strickland when it required the prisoner to show not only deficient
performance and prejudice, but also that “the result of the proceeding was fundamentally
unfair or unreliable.” 529 U.S. at 394 (internal quotation marks omitted). The Court
also indicated that it would be contrary to clearly established Supreme Court precedent
if a state court were to require a prisoner to demonstrate prejudice by a preponderance
of the evidence, because Strickland held that a “prisoner need only demonstrate a
‘reasonable probability that . . . the result of the proceeding would have been different.’”
Id. at 406 (quoting Strickland, 466 U.S. at 694).

         Because it is contrary to Strickland for a state court to require a prisoner to make
an additional showing not required by Strickland or to meet a higher burden of proof
than required by Strickland, it follows that it is contrary to Strickland for a state court
to exclude categorically an entire class of ineffective-assistance claims from Strickland’s
rule. Here, the Michigan Court of Appeals purported to exclude from Strickland’s rule
any ineffective-assistance claim that is based upon counsel’s failure to challenge a juror.
Because the decision of the Michigan Court of Appeals was contrary to clearly
established Supreme Court precedent, this court should review the merits of Holder’s
claim de novo.1




         1
            In responding to my argument for de novo review, the majority cites Harris v. Stovall, 212 F.3d
940 (6th Cir. 2000), and three nonbinding cases from other circuits for the proposition that a federal habeas
court should review the state court’s conclusion and not its reasoning. Maj. Op. at 17–18. Harris
embraced an approach that came to be known as “modified AEDPA deference,” under which this court
will conduct an independent review of the applicable facts and law but grant the writ only if the state
court’s ultimate decision was contrary to or an unreasonable application of federal law. See Maldonado
v. Wilson, 416 F.3d 470, 476 (6th Cir. 2005). Modified AEDPA deference applies only in cases where
there is little or no reasoning to review. See Harris, 212 F.3d at 943 (evaluating a state court’s denial of
relief “when there is no state court decision articulating its reasons”). Extending that approach to cases
in which the state court has explained its reasoning would be in tension with Supreme Court precedent.
See Early v. Packer, 537 U.S. 3, 8 (2002) (“Avoiding these pitfalls [of being ‘contrary to’ clearly
established Supreme Court precedents] does not require citation of our cases—indeed, it does not even
require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision
contradicts them.”) (second emphasis added); see also Cornwell v. Bradshaw, 559 F.3d 398, 405 (6th Cir.
2009) (“A state court decision on the merits is contrary to clearly established Supreme Court precedent
only if the reasoning or the result of the decision contradicts that precedent.”). Indeed, as noted above, this
court has acknowledged the Supreme Court’s instruction that a state-court decision is “contrary to” clearly
established federal law “if the state court applies a rule that contradicts the governing law set forth in
[Supreme Court] cases.” Fulcher, 444 F.3d at 799 (quoting Williams, 529 U.S. at 405) (emphasis added).
I believe that People v. Robinson contradicts Strickland. Accordingly, I would conclude that in applying
Robinson, the state court rendered a decision contrary to clearly established Supreme Court law.
No. 07-1440        Holder v. Palmer                                               Page 23


                II. INEFFECTIVE ASSISTANCE OF COUNSEL

       “[T]he right to jury trial guarantees to the criminally accused a fair trial by a
panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). In
determining whether a juror was impartial, we must ask two questions: “did [the] juror
swear that he could set aside any opinion he might hold and decide the case on the
evidence, and should the juror’s protestation of impartiality have been believed.” Patton
v. Yount, 467 U.S. 1025, 1036 (1984) (emphasis added). Both questions are important.
Not only must the juror give an affirmative promise of impartiality, but also that promise
must be believable in light of what the juror has revealed and the context of the case.
See Miller, 385 F.3d at 677 n.2 (“An affirmative statement of impartiality is required to
ensure that a juror is unbiased, but such a statement alone is not the determining factor.
A trial court must still determine, from the context, whether such a statement is
believable.”); Wolfe v. Brigano, 232 F.3d 499, 502 (6th Cir. 2000) (“A court’s refusal
to excuse a juror will not be upheld ‘simply because the court ultimately elicits from the
prospective juror a promise that he will be fair and impartial . . . .’” (quoting Kirk v.
Raymark Indus., Inc., 61 F.3d 147, 156 (3d Cir. 1995)).

       In my view, the assurances of impartiality given by jurors Flynn, Coppinger, and
Moore are simply not credible given the racial biases revealed by these jurors and the
underlying facts of this case. First, Juror Flynn revealed that she held negative
stereotypes about black persons’ purported propensities toward criminality and violence
and that she sometimes looked down upon people of other races. Flynn stated that she
believed that black men were more likely than men of other races to act upon feelings
of hate or revenge by resorting to violence and that more crimes were committed by non-
Caucasians than by Caucasians. Flynn also disclosed that, because her father once had
been robbed by a Hispanic man, she sometimes viewed “other races” as “below [her]
standards.” J.A. at 381 (R. 14-2 at 9). Although Flynn assured the judge during voire
dire that she would decide the case on the evidence and would not take Holder’s race
into account, Flynn never backed away from her earlier statements or acknowledged that
there was any hint of racial prejudice in her views.
No. 07-1440         Holder v. Palmer                                               Page 24


        In my view, Flynn’s disclosures revealed actual racial bias that required her
removal from the jury pool. See Rosales-Lopez v. United States, 451 U.S. 182, 191
(1981) (warning that “‘[n]o surer way could be devised to bring the processes of justice
into disrepute’” than “‘to permit it to be thought that persons entertaining a disqualifying
[racial] prejudice were allowed to serve as jurors’” (quoting Aldridge v. United States,
283 U.S. 308, 314-15 (1931)). Flynn revealed that she not only harbored negative
stereotypes about criminality and violence among African-American men, but also
sometimes viewed “other races” as “below [her] standards.” J.A. at 381 (R. 14-2 at 9).
Flynn never retracted these stereotypical views. This was a racially charged criminal
prosecution of a black male on charges of sexual misconduct against a white female
victim with whom he had a relationship. Under these circumstances, Flynn’s subsequent
assurances of impartiality were simply not credible. Even if Flynn honestly believed that
she could be fair, the racial stereotypes that she harbored created an unacceptable risk
that she would draw unreliable inferences about Holder’s conduct and that she would be
unable to fairly weigh the evidence.         See ANTONY PAGE, Batson’s Blind-Spot:
Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. REV. 155, 160
(2005) (“Once stereotypes have formed, they affect us even when we are aware of them
and reject them. Stereotypes can greatly influence the way we perceive, store, use, and
remember information. Discrimination, understood as biased decision-making, then
flows from the resulting distorted or unobjective information.” (footnote omitted)).

        Jurors Coppinger and Moore also revealed negative racial views, both jurors
expressing a distaste for interracial relationships.      Coppinger told the court that
interracial relationships did not meet the “standard” she had set for herself and her two
daughters. J.A. at 383 (R. 14-2 at 11). The court then presented Coppinger with a stark
hypothetical situation in which two suitors pursued her daughter—one a black man who
was successful, personable, “makes a nice income, and thinks the world of your
daughter,” and the other a white man with “long, greasy hair, earrings in his nose and
his tongue and his ears, and tattoos all over his body.” J.A. at 378 (R. 14-2 at 12). When
asked which suitor she would prefer, Coppinger admitted that it “wouldn’t be easy” to
decide. J.A. at 379 (R. 14-2 at 13). Coppinger further acknowledged that she would
No. 07-1440          Holder v. Palmer                                               Page 25


prefer to “not try that scenario.” Id. Juror Moore also revealed an aversion to interracial
relationships, stating that interracial couples should not have children because those
children would be “a mixed breed” and would not know “what breed they really are!”
J.A. at 397 (R. 14-2 at 18). When asked why she held this view, Moore explained, “I
don’t know why, but it’s somethin’ I guess I was brought up with.” J.A. at 398 (R. 14-2
at 19).

          I believe that these jurors’ express aversion to interracial relationships created
an unacceptable risk of actual bias. At the heart of this case was an interracial
relationship between Holder and his white partner, Monica Kosecki, and the question of
whether Holder informed Kosecki that he had HIV before the two had consensual sex.
Jurors Coppinger and Moore made it clear that they found such interracial relationships
to be unacceptable—at least for themselves and their families. Although both jurors told
the court that they thought they could be fair and impartial, their tentative promises are
untenable in light of their clear distaste for interracial relationships.        Given the
underlying facts of this case, Holder should not have been tried by a juror who considers
interracial relationships to be beneath her “standard” or by a juror who believes that
interracial couples should not have children because they result in “mixed breed”
children. Accordingly, I believe that both Coppinger and Moore had actual bias and that
their promises of impartiality should not have been believed.

                                   III. CONCLUSION

          Because a decision to allow biased jurors to be impaneled “cannot be a
discretionary or strategic decision,” and because “there is no sound trial strategy that
could support what is essentially a waiver of a defendant’s basic Sixth Amendment right
to trial by an impartial jury,” Miller, 385 F.3d at 675-76, I believe it is clear that
Holder’s trial counsel’s performance “fell below an objective standard of
reasonableness,” Strickland, 466 U.S. at 688. Further, because jurors with actual bias
were impaneled, the prejudice prong of Strickland is also satisfied. See Hughes, 258
F.3d at 463 (“The seating of a biased juror who should have been dismissed for cause
requires reversal of the conviction.”); Strickland, 466 U.S. at 694. As explained above,
No. 07-1440        Holder v. Palmer                                          Page 26


I believe that de novo review is appropriate in this case. However, even applying
AEDPA’s deferential standard, I believe that the Michigan Court of Appeals
unreasonably applied clearly established Supreme Court precedent when it held that
Holder had not shown that his counsel’s performance was objectively unreasonable. For
these reasons, I would grant Holder’s petition.
