     Case: 07-20225     Document: 00511232169          Page: 1    Date Filed: 09/13/2010




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

                                                  FILED
                                                                        September 13, 2010
                                       No. 07-20225
                                                                            Lyle W. Cayce
                                                                                 Clerk
LARRY TORRES,

               Petitioner - Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

               Respondent - Appellee


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:04-CV-1080


Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
        Larry Torres filed a 28 U.S.C. § 2254 petition in the Southern District of
Texas. The alleged Constitutional violations stemmed from the presence on the
petit jury of a man who alluded that his ability to be fair and impartial may be
negatively impacted by his personal experiences. The district court denied relief,
deferring to the state habeas court’s findings that trial counsel kept the juror as
part of a defense strategy. We agree and affirm.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                          No. 07-20225

                                               I.
      Torres relies heavily upon our decision in Virgil v. Dretke.1 We turn first
to that case. A Texas jury convicted Frank Virgil for attacking an elderly person
and sentenced him to thirty years. Two jurors explained during voir dire that
they could not be fair and impartial:


      DEFENSE COUNSEL: [H]ave you had any association in the past
      with police officers in your family or friends?

      VENIREMAN #16: Yes, I have relatives. I’m just saying from their
      experience that they’ve told me about, repeated offenders.

      DEFENSE COUNSEL: So therefore you could not serve as an
      impartial juror in this case?

      VENIREMAN #16: Perhaps not.

      DEFENSE COUNSEL: Is your answer no or yes?

      VENIREMAN #16: I would say no.2

      ...

      DEFENSE COUNSEL: Your number?

      VENIREMAN #17: 17. . . . I don’t know that it’s going to be partial
      or impartial, but my mother was mugged and they never found the
      mugger. The thought keeps crossing my mind while we’re talking
      about this, as far as assault on an elderly person. So it’s weighing
      me because of the fact that they never did find the person. I’m
      thinking about that.


      1
          446 F.3d 598 (5th Cir. 2006).
      2
          Id. at 603.

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                                       No. 07-20225

       DEFENSE COUNSEL: Would this cause you to be a juror who could
       not be fair and impartial in this case?

       VENIREMAN #17: Yeah, I believe so.

       DEFENSE COUNSEL: All right. Not believe or is it so?

       VENIREMAN #17: I said: Yes, I do believe so.3


       Defense counsel never challenged these two veniremen. “At no point
during voir dire did counsel attempt to clarify, confirm, or rehabilitate this
testimony. Moreover, the trial judge never expressed any concern regarding the
statements by the . . . jurors regarding their ability to be fair.”4 After sentencing,
Virgil lost his direct appeal, and the state denied his habeas petition. The
federal district court denied his § 2254 petition, but this court granted a
certificate of appealability (COA) on the question of whether Virgil’s counsel
offered effective representation in failing to challenge biased jurors. We found
that counsel had not, aware that “our review [was] limited by the Antiterrorism
and Effective Death Penalty Act of 1996.” 5
       We noted the Sixth Amendment’s requirement of an impartial jury,6
explaining “[i]t is clearly established that the Supreme Court views the denial
of the right to an impartial decisionmaker to be such an error that taints any



       3
           Id. at 603–04.
       4
           Id. at 604.
       5
           Id.
       6
         Citing favorably to Hughes v. United States, 258 F.3d 453 (6th Cir. 2001), and United
States v. Nell, 526 F.2d 1223 (5th Cir. 1976).

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                                          No. 07-20225

resulting conviction with constitutional infirmity.”7 We refused to “hold that a
structural error alone is sufficient to warrant a presumption of prejudice in the
ineffective assistance of counsel context,” but explained “the fundamental nature
of such rights—including the right to an impartial jury—serves as an important
guidepost in our evaluation of whether the state court’s denial of Virgil’s
ineffective assistance of counsel claim was ‘objectively unreasonable’ under
AEDPA.”8
      Guided by Strickland v. Washington and its two-part test,9 we first found
deficient performance for failing to challenge the two jurors—either for cause or
peremptorily.10 We were not persuaded by an affidavit submitted by defense
counsel explaining his inaction to the state habeas court:


             I spent approximately thirty (30) minutes talking to and
      questioning the jury in this case. I was able to ask all of the
      questions that I thought were necessary to determine if there was
      any prejudice or bias against my client. I was also able to question
      the potential jurors regarding any issues that I thought might arise
      in this case.

            In determining the final jurors, I used all peremptory strikes
      that were available to me. I have reviewed the record and
      confirmed the number of strikes I used in this case. I struck all
      persons whom I thought had some type of bias, prejudice or issue




      7
          Virgil, 446 F.3d at 607.
      8
          Id.
      9
          See 466 U.S. 668, 687 (1984).
      10
           Virgil, 446 F.3d at 610.

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                                       No. 07-20225

      based upon my voir dire.11


We observed that the affidavit “lacks any suggestion of a trial strategy for not
using peremptory or for-cause challenges” and “fails to explain why the answers
given [by the two jurors] did not indicate prejudice or bias.” 12
      We also concluded Virgil had established both that (1) the deficient
performance prejudiced his defense and (2) the state habeas court’s adverse
decision “was an unreasonable application of clearly established federal law as
determined by the Supreme Court.”13 “We are required to presume that the
judge or jury acted according to law, yet the law mandates a juror willing to lay
aside his impression or opinion and render a verdict based on the evidence
presented in court.”14        That did not happen in Virgil’s case.             “Given the
fundamental nature of the impartial jury and the consistent line of Supreme
Court precedent enforcing it, we must conclude that ‘the result of [Virgil’s trial]
[wa]s unreliable because of a breakdown in the adversarial process that our
system counts on to produce just results.’” 15


                                              II.
      Larry Torres is 11 years into a 70 year sentence for possession of cocaine



      11
           Id.
      12
           Id. (quotation marks omitted).
      13
           Id.
      14
           Id. at 612–13 (citations and quotation marks omitted).
      15
          Id. at 613 (quoting Strickland v. Washington, 466 U.S. 668, 696 (1984)) (first
alteration in original).

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                                   No. 07-20225

with intent to distribute. Jon Gorman served as foreman of the jury that
convicted and sentenced Torres. During voir dire, the judge asked all panelists
whether they could: honor the burden of proof and presumption of innocence,
consider the full range of punishment, and follow the Fifth Amendment if the
defendant failed to testify. Gorman did not raise any concerns in response to
these inquiries. Specifically, when explaining reasonable doubt, the trial judge
told the panel that the court needed to know of any feelings that might prevent
a panelist from being fair and impartial. One panelist raised his hand, but
Gorman did not. Yet when the prosecutor asked: “Anybody had a friend, family
member, close relative had a problem with drugs who would not be able to sit in
this case, guilt or innocence or punishment, anyone at all?” Gorman spoke up.
“I might have a problem with that, 34.” Later, Gorman approached the bench.


      THE COURT: The next one I have is 34. I have just a question
      mark.

      PROSECUTOR: He would not consider life, your Honor.16

      THE COURT: You want to agree, Ira [Chenkin, defense counsel], or
      talk?

      DEFENSE COUNSEL: I would like to talk.

      PROSECUTOR: Yeah, me too.

      THE COURT: Mr. Gorman, 34 . . . . Are you active in the Air Force?

      GORMAN: Yes, sir.


      16
         Nothing in the record shows Gorman would not consider a life sentence so the
prosecutor likely misspoke here.

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                              No. 07-20225


   THE COURT: Living here now?

   GORMAN: Yes, sir.

   THE COURT: I’m an Air Force retiree. Good to have you here.
   What is your rank?

   GORMAN: E-6.

   THE COURT: I was one of those once. Mr. Chenkin has a question.

   DEFENSE COUNSEL: Can you consider the full range of
   punishment?

   GORMAN: You know, I would have a hard time and the reason is
   I’m a foster parent and I have foster children living with me right
   now from the State of Washington and their mother put me in the
   situation that my foster daughter is in.

   DEFENSE COUNSEL: I don’t understand.

   GORMAN: Could I consider the full range? Yeah, I could very easily
   consider the full range.

   PROSECUTOR: Now I’m a little hesitant. Is there some experience
   that would make you not be able to judge these facts objectively?

   GORMAN: Possibly. I mean, I’ve I thought about it because it took
   me a while to think about what is going on; internalizing on myself.
   I need to separate my experiences from what might be at and hear
   and in that case I may have a problem making a decision based on –

   PROSECUTOR: This evidence?

   GORMAN: Yes.

   THE COURT: Whatever those situations were or are, do you think

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                                  No. 07-20225

      you can set those aside and when you are considering the evidence
      in this case or do you think that is going to affect your ability to be
      fair and impartial?

      GORMAN: I think it would affect my ability to be fair and impartial
      because they are there.

      THE COURT: You don’t think you can set them aside?

      GORMAN: I’ve been doing this for about five years now and there
      are things I’ve seen that I think –

      THE COURT: Based upon experiences, you feel like you can’t be fair
      to the defendant or the State?

      GORMAN: Probably more for the State.

      THE COURT: You don’t think you could be as fair to him?

      GORMAN: That’s correct.

      THE COURT: Question?

      PROSECUTOR: No.

      DEFENSE COUNSEL: No further questions.

      THE COURT: Thank you, sir.

      PROSECUTOR: I think we should keep him.

      DEFENSE COUNSEL: Leave him alone.


      No further questions were put to Gorman. Defense counsel did not move
to strike Gorman, either for cause or to exercise a peremptory challenge. Torres




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                                   No. 07-20225

was convicted and sentenced to 70 years; appealed and lost; and did not seek
Supreme Court review.
      Torres filed a state habeas petition, alleging jury bias and ineffective
assistance of counsel for failure to strike Gorman. The state habeas court (a
different judge than the one who presided over the trial) ordered Chenkin to file
an affidavit. It stated:


             I have been asked to explain the reasons for my decision not
      to challenge or exercise a peremptory strike against venireman Jon
      Gorman at . . . trial in the primary case. I recall, based on general
      voir dire discussions with the venirepanel, that I had the impression
      that Mr. Gorman was going to be a defense-oriented juror. I recall
      that I had developed this impression based on Mr. Gorman’s
      responses to questions as they were asked by both myself and the
      State, although I don’t believe Mr. Gorman’s specific responses are
      reflected in the appellate record. I further recall that, because I
      believed Mr. Gorman was defense-oriented, I did not wish to
      question him at the bench. However, the prosecutor did want to
      question Mr. Gorman, so I attempted to protect him as a defense
      juror.
             As Mr. Gorman began to answer questions posed by the judge,
      prosecutor, and myself, I realized that he was starting to flip-flop on
      several of his answers. However, I remember at the time thinking
      that it would not be a bad idea to have an equivocating juror on this
      case. The evidence against Larry Torres was strong, Mr. Torres was
      a difficult client, and I believed it was going to be a difficult case to
      win.
             I thought that Mr. Gorman’s presence on the jury, if not
      sufficient to result in an acquittal, would at least give us a good
      chance at getting a hung jury and a mistrial. I made the strategic
      decision not to challenge Mr. Gorman for cause; likewise, I chose not
      to exercise a peremptory strike against him. Although some of Mr.
      Gorman’s answers at the bench were not exactly favorable to the



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                                        No. 07-20225

       defense, it was still my impression that he would be a good defense
       juror or, at least his presence might lead to a mistrial.


The state habeas court ruled on the merits, finding Chenkin to be credible and
the facts asserted in Checkin’s affidavit to be true: he made a strategic decision
not to challenge Gorman. The Texas Court of Criminal Appeals denied relief
based on the state habeas court’s recommendation.
       Torres filed a pro se 28 U.S.C. § 2254 petition in federal district court.
Texas responded and moved for summary judgment.17 The district court granted
summary judgment, denying relief. As to juror bias, the district court deferred
to the state court fact finding that Gorman was not partial. Although his
colloquy at the bench suggested he might not be fair to Torres, Gorman’s
responses to questions about burden of proof and trial procedure outweighed any
potential bias. As to ineffective assistance, the district court again deferred to
state court fact finding that Chenkin had made a strategic choice to keep
Gorman. The court differentiated Virgil on the idea that the after-the-fact
affidavit here was more thorough and direct than the lawyer’s after-the-fact
affidavit there. This court granted a COA on the juror bias and ineffective
assistance claims.




       17
         Summary judgement in federal habeas is different than in the average civil case. See,
e.g., Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), abrogated on other grounds by
Tennard v. Dretke, 542 U.S. 274 (2004) (“[Section] 2254(e)(1) – which mandates that findings
of fact made by a state court are ‘presumed to be correct’ – overrides the ordinary rule that,
in a summary judgment proceeding, all disputed facts must be construed in the light most
favorable to the nonmoving party. Unless [the petitioner] can ‘rebut [ ] the presumption of
correctness by clear and convincing evidence’ as to the state court’s findings of fact, they must
be accepted as correct.” (third alteration in original)).

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                                          No. 07-20225

                                                III.
                                                 A.
       We review the factual issues of a district court’s denial of habeas relief for
clear error and the legal issues de novo, applying the same deference to the state
court’s decision as the district court must.18 Torres’s § 2254 petition falls under
AEDPA, so we “defer to a state court’s adjudication of a claim if the claim has
been adjudicated on the merits in the state court proceedings unless the state
court decision was (1) ‘contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court,’ or (2)
‘was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’”19 We must accept the state habeas
court’s fact finding unless rebutted by clear and convincing evidence.20 The jury
bias question is one of fact,21 and the ineffective assistance issue presents a
mixed question of law and fact.22
                                                 B.
       Contrary to what Torres claims, this case is not controlled by Virgil. In
Virgil, the two questionable jurors provided specific statements during voir dire
indicating why they could not be fair and impartial.23 Later, defense counsel


       18
            Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir. 2007).
       19
            Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir. 2010) (quoting 28 U.S.C. § 2254(d)).
       20
            28 U.S.C. § 2254(e)(1); see also Virgil, 446 F.3d at 610 n.52.
       21
            See Virgil, 446 F.3d at 610 n.52.
       22
            See Woodfox, 609 F.3d at 789; Virgil, 446 F.3d at 604–05.
       23
        See Virgil, 446 F.3d at 609-10 (noting that one juror stated his relationship with law-
enforcement officers and knowledge of repeat offenders would preclude him from being

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                                         No. 07-20225

provided only a “conclusory affidavit” that “fail[ed] to rehabilitate his
performance, as it lack[ed] any suggestion of a trial strategy for not using
peremptory or for-cause challenges.”24 In contrast, here the juror’s statements
on the record during voir dire were vague. Gorman implied that a “situation”
with his foster daughter’s mother would affect his ability to be fair, but he never
described an experience with drugs or drug dealers that would affect his
impartiality.25 Further, unlike the Virgil affidavit, Chenkin’s affidavit described
a trial strategy that involved Gorman’s statements and personality.26 Chenkin
believed that Gorman’s presence on the jury might result in a hung jury or
possibly an acquittal, an explanation the state habeas court credited.27 As the


impartial and the other juror stated his mother’s mugging prevented him from being
impartial).
       24
            Virgil, 446 F.3d at 610.
       25
         Gorman’s nebulous conversation at the bench also differentiates this case from the
Sixth Circuit case we relied on in Virgil. Hughes v. United States, 258 F.3d 453 (6th Cir.
2001). In Hughes, the juror said, “I don’t think I could be fair,” in a case where the defendant
was said to have stolen a firearm from a federal marshal at gunpoint. The juror’s assessment
of her own fairness was based on her close relationship with members of the police force. The
court found these statements to be evidence of bias. In contrast, Gorman initially stated he
“would have a hard time” considering the full range of punishment. Moments later, he stated
he “could very easily consider the full range.” He never described instances involving drugs
or the police that would make him bias against the defendant.
       26
         We also found the Virgil affidavit lacking because it failed to indicate why for-cause
challenges were not used against the jurors in question. Virgil, 446 F.3d at 610. That problem
does not exist in this case, as Chenkin specifically stated he made a strategic decision not to
use the for-cause challenge.
       27
          This court gives “substantial deference to counsel’s performance, applying the strong
presumption that counsel performed adequately and exercised reasonable professional
judgment. Because we must make every effort to eliminate the distorting effects of hindsight,
a conscious and informed decision on trial tactics and strategy cannot be the basis for
constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the
entire trial with obvious unfairness.” Virgil, 446 F.3d at 608 (citations and quotation marks

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                                        No. 07-20225

Texas Court of Criminal Appeals has explained, “That appellant was ultimately
assessed the maximum punishment means only that the [strategic] risk did not
pay off; it does not mean the strategy was unacceptable from the perspective of
jury selection.” 28
       Torres argues that Gorman unequivocally expressed he could not be fair
and impartial. However, when the trial judge asked the panel whether anyone
was unable to properly follow the laws of presumption of innocence and burden
of proof, Gorman remained silent, indicating his ability to follow the law. The
trial judge specifically told panelists to report feelings that would hinder their
ability to apply reasonable doubt “because you may not be able to be a fair and
impartial juror.” Gorman said nothing.29 Moreover, Gorman’s statements at the
bench did not expressly indicate a clear prejudice. He said he thought his
experiences would affect his impartiality and that he would “probably” be more
for the State, but unlike the Virgil jurors, none of Gorman’s responses
definitively showed he would not be impartial.30



omitted).
       28
         Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992) (reversing the court of
appeals and finding that defense counsel’s failure to strike an ex-narcotics officer venireperson
in a drug-related case could have been trial strategy).
       29
         In addition, the voir dire transcript shows that defense counsel asked panelists
person by person whether “You think you could be a fair and impartial juror?”
       30
          We have previously differentiated Virgil on this basis. See Seigfried v. Greer, 2010
WL 1404046, at *4, 2010 U.S. App. LEXIS 7202, at *10 (5th Cir. Apr. 7, 2010) (unpublished)
(“Although the statements made by Juror 2 hinted at possible bias against Seigfried, Juror 2
never explicitly stated that she could not be an impartial juror. In contrast to the statements
by Juror 2 during voir dire, both this court and others courts have found actual bias where a
juror forthrightly states that she could not be fair and impartial.”); White v. Quarterman, 275
F. App’x 380, 382–83 (5th Cir. 2008) (unpublished).

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                                        No. 07-20225

                                              IV.
       The record supports the state habeas court’s findings that Larry Torres’s
lawyer had a strategy in accepting Gorman as a juror despite the late arising
impartiality concerns. The state habeas court’s application of federal law was
objectively reasonable, the standard required by AEDPA before granting relief.31
Finding Virgil to be inapposite, we hold that Torres’s trial was constitutionally
sound and affirm the district court’s judgment denying habeas relief.
       AFFIRMED.




       31
          See Virgil, 446 F.3d at 614 (“The state court’s rejection of Virgil’s ineffective
assistance of counsel claim was contrary to the Supreme Court’s decision in Strickland.”
(citing 28 U.S.C. § 2254(d)(1))); see also Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (reciting
that an incorrect application of federal law is not sufficient).

                                               14
