                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 13a0642n.06

                                             No. 09-2632

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


WARREN EDWARD ENGLISH, III,                     )                                  FILED
                                                )                               Jul 10, 2013
        Petitioner-Appellant,                   )                        DEBORAH S. HUNT, Clerk
                                                )
v.                                              )
                                                )    ON APPEAL FROM THE UNITED
MARY BERGHUIS, Warden,                          )    STATES DISTRICT COURT FOR THE
                                                )    WESTERN DISTRICT OF MICHIGAN
        Respondent-Appellee.                    )
                                                )
                                                )    OPINION



        Before: SUHRHEINRICH, STRANCH, and DONALD, Circuit Judges.


        BERNICE B. DONALD, Circuit Judge. Petitioner Warren English, a state prisoner, appeals

the district court’s dismissal of his petition for a writ of habeas corpus brought pursuant to 28 U.S.C.

§ 2254. A jury convicted English of third degree criminal sexual conduct in Michigan state court

(“the trial court”). After his conviction, the trial court granted English’s motion for new trial based

on a juror’s failure to disclose during voir dire that she had been sexually molested as a child. The

Michigan Court of Appeals (“the court of appeals”) reversed the trial court’s grant of a new trial and

reinstated English’s conviction and sentence. The Michigan Supreme Court denied review in a 3-2

decision. English then filed a habeas petition in federal district court (“the district court”) in which

he raised several constitutional claims, including denial of his rights to due process and to a fair and

impartial jury. The district court dismissed English’s petition pursuant to Rule 4 of the Rules
Governing § 2254 Cases, finding that English had failed to raise a meritorious federal claim. For

the reasons set forth herein, we REVERSE the district court’s judgment and REMAND for further

proceedings consistent with this opinion.

                                                   I.

        In 2006, English pled not guilty to third-degree criminal sexual conduct and proceeded to trial

on allegations that he had non-consensual intercourse with a seventeen-year-old acquaintance who

was asleep at his home following a party. He was convicted and sentenced to a prison term of

twenty-one months to fifteen years. English appealed on several grounds not before this court and

also filed a motion for new trial based on his discovery that a juror, identified as Juror A, had failed

to disclose during voir dire that she had been the victim of sexual abuse as a child by a member of

her household. The factual basis for the motion was set forth in the district court’s opinion as

follows1:

        Voir dire took place on January 9, 2006. In the trial court’s opening statement to the
        jury pool, the trial court stressed the need for jurors to be free from bias, prejudice,
        or sympathy towards either side. (TR, p. 6). The trial court informed the jury pool
        that the purpose of voir dire was to choose a fair and impartial jury to hear the case.
        (TR, p. 7).

        The trial court further informed the jury pool that questions would be asked to
        determine if members of the jury pool had “any opinions or personal experiences that
        might influence you for or against the prosecution, the defendant, or any
        witnesses[.”] (TR, p. 7). The Court invited the jury pool to ask if any individual did
        not hear or understand a question. (TR, p. 7). The Court also made clear that any of
        the potential jurors could ask for a private conference outside of the hearing of the
        other members of the jury pool. (TR, p. 7).




       1
         The district court’s summary of facts was drawn from the defendant’s brief, without benefit
of the entire state court trial record, particularly the jury voir dire transcript.

                                                   2
The members of the jury pool who had not been originally selected were asked to pay
close attention to the questions because every question would not be repeated as jury
selection progressed. (TR, p. 10).

One of the potential jurors indicated that she and her sister had been molested by
their stepfather. (TR, p. 32). This disclosure was made in open court and within the
hearing of all members of the jury pool. (TR, p. 32). A separate record was made,
and the potential juror was excused for cause. (TR, pp. 33-34). In making this
decision, the trial court remarked, within the hearing of the entire jury pool, that it
was difficult in prosecutions for sexual crimes for a juror to be objective when that
juror had herself or himself been sexually abused. (TR, p. 33). The trial court
informed the jury pool that this juror had been excused for cause. (TR, p. 35.) The
jury pool thus had every reason to believe that being a victim of sexual molestation
would result in a potential juror being excused.

The trial court made the same observation when a second potential juror admitted
that she would have trouble being impartial because her mother and her mother’s
sister had been sexually molested. (TR, p. 90).

Another potential juror informed the Court and the parties that his son had been
accused of sexually molesting a child. (TR, p. 36). This disclosure was made in
open court within the hearing of the rest of the jury pool. (TR, pp. 36-37). A
separate record was made, and the potential juror was dismissed for cause. (TR, pp.
40-41).

A potential juror was excused for cause because that potential juror admitted that he
might be more pre-disposed to believe the complainant or a member of her family.
(TR, pp. 42-43). Another potential juror was interviewed in chambers and dismissed
for cause because a cousin had sexually molested her and had gone to prison for his
crime. (TR, pp. 45-46).

In sum, when a potential juror was excused for cause, the jury pool was usually
informed that the juror had been dismissed for cause. (E.g., TR, pp. 47, 76).

The juror whose omission resulted in the New Trial Order was identified as Juror A.
(TR, p. 103). Juror A stated that she had heard all of the questions that had been
asked, and may have answered some of them differently. (TR, p. 103). Although
offered an opportunity to discuss this issue, Juror A declined a private conference.
(TR, pp. 103-104). Juror A disclosed that she had been the victim of a crime. (TR,
p. 104). The crime was breaking and entering and had taken place some eleven years
ago. (TR, p. 104). She also disclosed that her brother-in-law was a police officer in
a nearby community. (TR, p. 104).



                                          3
Juror A was the last juror to be chosen. (TR, p. 107). She had thus had the benefit
of all the disclosures made by other jurors and had observed how jurors who had
admitted to being a victim of sexual abuse had been excused for cause.

                                           ***
The New Trial Motion was based on allegations that two jurors, [including] Juror[]
A . . . had not been forthright during voir dire. . . . A hearing was held on September
29, 2006. Juror A was called as the first witness. The trial court began by reading
Juror A her rights, including the possibility of a perjury charge. (TR, pp. 5-6). Juror
A informed the trial court that she was willing to testify without consulting with or
having an attorney present. (TR, p. 7).

Juror A recalled that she had participated in defendant’s jury selection. (TR, p. 7).
She recalled the Court telling the jury pool that it was important that the pool be free
from bias, prejudice, or sympathy for either side. (TR, p. 8). She also recalled the
jury pool being told that they should listen to the questions posed to other jurors so
as to learn when responses might be required. (TR, p. 8).

Although Juror A was the last juror called to the box for voir dire, she had paid
attention to what had been happening to other members in the jury pool. (TR, p. 9).
Juror A vaguely remembered a potential juror named Ms. Curtis who had informed
the Court and the parties that she and her sister had been molested by their stepfather.
(TR, p. 9). She also vaguely recalled that Ms. Curtis was invited into a conference
with the Court and that after that conference, Ms. Curtis was excused for cause. (TR,
p. 9).

She could not remember other jurors who had been excused for cause, including one
who had admitted to being a victim of sexual molestation. (TR, p. 10).

Juror A did recall telling the Court that she had heard the answers to questions asked
of other members of the jury pool. (TR, p. 11). Juror A recalled informing the Court
that she had been the victim of a break-in. (TR, p. 12). She had also disclosed that
her brother-in-law was a police officer. (TR, p. 13).

Juror A did admit that there was something that she did not disclose. (TR, p. 14).
She explained that no one was prosecuted and that she did not talk with the police.
(TR, p. 14). She and her abuser had since reconciled. (TR, p. 14).

Juror A testified that she was a victim of a sexual assault when she was 8 years of
age. (TR, p. 15). She was assaulted by a member of her household. (TR, p. 15).
She did not disclose the sexual assault during voir dire. (TR, p. 15).




                                           4
       On cross examination, Juror A testified that she was not trying to hide anything from
       the trial court or from the lawyers. (Tr, p. 16). When she spoke to the defense’s
       private investigator, she thought that she had disclosed her sexual assault. (TR, p.
       16). She now realized that she was mistaken and that she had not informed the trial
       court or the parties about her past sexual assault. (TR, p. 16).

       Juror A denied that her past sexual experience had caused her to be biased against the
       defendant. (TR, p. 16). Juror A affirmed that the recollections were sometimes
       vague because of the amount of time that had passed between voir dire and the date
       of the hearing. (TR, p. 17). Juror A also affirmed that she had been paying attention
       during voir dire. (TR, p. 17).

       Juror A testified that she thought there would have to have been a conviction or a
       report to the police before her past sexual experience needed to be disclosed. (TR,
       p. 18). Juror A opined that her past experience did not interfere with her ability to
       be a fair juror in defendant’s case. (TR, p. 20).

       In response to a question from the trial court, Juror A affirmed her prior belief that
       she had disclosed the sexual assault during voir dire. (TR, pp. 22-23).

       The trial court found Juror A did not honestly answer a material question on voir dire and

that it was not relevant that Juror A was convinced she was fair and impartial. The court found that

Juror A had a duty to disclose the fact that she had been a victim of sexual abuse and she knew she

had the duty to disclose the information. If Juror A had honestly answered the question, the court

found, English’s counsel or the court sua sponte would have excused her for cause. If that failed,

defense counsel could have used a remaining peremptory strike. Accordingly, the court granted

English’s motion for a new trial based upon the failure of Juror A to disclose the fact that she had

been the victim of sexual abuse. The State appealed.

       On December 4, 2007, the court of appeals held that the trial court abused its discretion in

granting English a new trial, finding that the trial court had not used the correct legal standard in

analyzing English’s claim. People v. English, No. 269887, 2007 WL 4245412 (Mich. Ct. App. Dec.




                                                 5
4, 2007) (per curiam). The court set aside the trial court’s order and reinstated English’s conviction

and sentence.

        English sought review by the Michigan Supreme Court, arguing, among other things, that he

had been denied his Sixth and Fourteenth Amendment right to a fair and impartial jury. The

Michigan Supreme Court denied the application, with two justices dissenting. People v. English,

743 N.W.2d 909 (Mich. 2008).

        Having exhausted his direct appeals, English filed a request for relief from judgment with

the trial court, which the court denied. In its order the trial court offered these reflections:

                I had granted the motion for new trial because I felt that the parties conducted
        the voir dire under the belief the jurors were acting pursuant to their oath and would
        “answer truthfully, fully and honestly all the questions you will be asked.” I also
        found that despite the jurors [sic] statement that her prior undisclosed experience of
        being a victim in a sexual assault did not bias her while sitting as a juror in this
        sexual assault case, I thought it may subconsciously. In addition, even if she was not
        biased and may not have been excused for cause the attorneys may have used a
        preempting [sic] challenge to excuse her but was [sic] denied this opportunity by the
        jurors [sic] failure to comply with the oath she took.

                 All of these arguments were made to and disregarded by the Court of Appeals
        and Supreme Court. They also did not find it necessary to remand the issue to the
        trial court for further fact finding or rulings. I do not have to agree with the reasoning
        of the appellate courts but I do have to follow their rulings.

        English then filed a § 2254 habeas petition. The district court summarily dismissed the

petition on December 21, 2009 under Rule 4 of the Rules Governing § 2254 Cases,2 finding that


        2
         Rule 4. Preliminary Review; Serving the Petition and Order: The clerk must promptly
forward the petition to a judge under the court's assignment procedure, and the judge must promptly
examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify
the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer,
motion, or other response within a fixed time, or to take other action the judge may order. In every
case, the clerk must serve a copy of the petition and any order on the respondent and on the attorney

                                                     6
English’s federal claims lacked merit on their face. We granted a Certificate of Appealability only

as to the fair and impartial juror issue. Our analysis of that issue leads us to reverse and remand.


                                                  II.
                                                  A.
       We review de novo a district court’s legal conclusions in a habeas petition ruling. Lucas v.

O’Dea, 179 F.3d 412, 416 (6th Cir. 1999).


       The question of a challenge of a prospective juror for bias is a “factual issue” subject to

§ 2254(d), which requires a federal reviewing court to accord any findings of the state courts on

factual issues a “presumption of correctness.” Wainwright v. Witt, 469 U.S. 412, 426 (1985) (citing

Patton v. Yount, 467 U.S. 1025 (1984).


                                                  B.


       The Sixth Amendment, applicable to the states through the Fourteenth Amendment, provides

that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by

an impartial jury . . . .” U.S. CONST . amend. VI. In McDonough Power Equipment, Inc. v.

Greenwood, the Supreme Court recognized that the jury selection process “serves to protect that

right by exposing possible biases, both known and unknown, on the part of potential jurors,” and that

the “necessity of truthful answers by prospective jurors if this process is to serve its purpose is

obvious.” 464 U.S. 548, 554 (1984). “The motives for concealing information may vary, but only




general or other appropriate officer of the state involved.

                                                   7
those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial.” Id. at

555.


        Declaring that a litigant is “entitled to a fair trial but not a perfect one,” id. at 553, the

McDonough Court held that a defendant who discovers that a juror has withheld material

information is entitled to a new trial only if the juror’s failure to disclose denied the defendant his

right to an impartial jury. Id. at 556. In order to obtain a new trial based on a juror’s non-disclosure

during voir dire, the defendant “must first demonstrate that a juror failed to answer honestly a

material question on voir dire, and then further show that a correct response would have provided

a valid basis for a challenge for cause.” Id.


        Challenges for cause allow the removal of panel members only “on a narrowly specified,

provable and legally cognizable basis of partiality,” Swain v. Alabama, 380 U.S. 202, 220 (1965),

overruled on separate grounds by Batson v. Kentucky, 476 U.S. 79 (1986), “such as a personal

relationship with a party, witness, or attorney in the litigation, or a biased state of mind concerning

a party or issue in the case.” United States v. Annigoni, 96 F.3d 1132, 1138 (9th Cir. 1996),

overruled on separate grounds by Rivera v. Illinois, 556 U.S. 148 (2009). A finding of bias is thus

central to the McDonough test: “Demonstrated bias in the responses to questions on voir dire may

result in a juror being excused for cause.” McDonough, 464 U.S. at 554.


        The McDonough standard applies in cases where a juror deliberately conceals information

as well as in cases of “mistaken but honest” responses to voir dire questions. Id. at 555. Only when

a juror is found to have deliberately concealed material information, however, may bias be inferred.



                                                     8
If information is not concealed deliberately, “the movant must show actual bias.” See, e.g., Zerka

v. Green, 49 F.3d 1181, 1186 (6th Cir. 1995) (emphasis omitted). “Actual bias is ‘bias in fact’ and

focuses on the record at voir dire.” Johnson v. Luoma, 425 F.3d 318, 326 (6th Cir. 2005).


                                                  C.


        In determining whether to issue a writ of habeas corpus, the provisions of the Antiterrorism

and Effective Death Penalty Act (“AEDPA”) apply and serve to significantly constrain the federal

courts’ review of a state court’s decision. 28 U.S.C. § 2254 (2006). Under § 2254(d), a federal

court may not grant relief from a state court conviction unless the state-court 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 upon an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.”


        A state court’s legal decision is “contrary to” clearly established federal law under §

2254(d)(1) “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, 412-13 (2000). An

“unreasonable application” occurs when the state court correctly identifies the correct legal principle

from Supreme Court precedent “but unreasonably applies that principle to the facts” of the case

before it. Id. at 413.




                                                  9
        Before a reviewing court reaches the question of the reasonableness and conformity to

relevant precedent of the state court adjudication, however, it must first confront a more primal

question: whether the defendant’s claim was actually adjudicated by the state courts. AEDPA’s

deferential standard of review applies only to claims that were actually adjudicated on the merits in

state court proceedings. Robinson v. Howes, 663 F.3d 819, 822-23 (6th Cir. 2011). “Claims that

were not adjudicated on the merits in State court proceedings receive the pre-AEDPA standard of

review: de novo for questions of law . . . and clear error for questions of fact.” Id. at 823 (internal

quotation marks omitted).


        This question of adjudication is of particularly fundamental importance to the case before us,

as a close examination of its peculiar procedural history reveals. Following a hearing in which

English claimed that his federal and state constitutional rights to an impartial jury were violated, the

state trial court granted English’s motion for a new trial. The trial court expressly found that Juror

A had deliberately concealed material information during voir dire, but the court did not make an

explicit finding that Juror A had been biased.3 Due to the material concealment, a finding of bias

could have been readily inferred under McDonough. See Zerka, 49 F.3d at 1186. But neither the

trial court nor English was particularly concerned with bias, since, under the prevailing state law as


        3
          The dissent takes inconsistent positions on this point. Initially, the dissent strongly asserts
that the trial court made a factual finding that Juror A had been fair and impartial and urges us to
give this finding a presumption of correctness. The record shows, however, that the trial court
merely recounted Juror A’s statements that she believed that her experience of sexual abuse would
not interfere with her ability to be a fair juror. The court did not make an express finding that Juror
A was, in fact, impartial or unbiased. The dissent takes a different tack in section C, pointing out
that English had an opportunity at the state evidentiary hearing to develop a factual predicate for
actual bias but “chose not to have the state trial court make the requisite factual finding.” The
dissent cannot have it both ways, and we think the most reasonable reading of the record is that the
state trial court did not make a factual finding of actual bias.

                                                   10
both understood it, such a showing was not a necessary element of English’s claim. Both embraced

as dispositive People v. Manser, 645 N.W.2d 65, 69 (Mich. Ct. App. 2002) (per curiam), which

observed that “the seating of a juror who withholds information that should have been produced as

a result of questioning during the voir dire presents too great a risk that a defendant will not be

provided an impartial jury.”


        Consequently, the post-conviction hearing on English’s motion for a new trial touched upon,

but did not fully decide, the juror bias question central to the 6th Amendment claim. Instead, the

court based its decision on its general observation that a prospective juror in a criminal case who has

been the victim of a crime similar to the one for which the defendant is on trial is routinely

challenged and excused for cause. And the court concluded that the juror’s failure to disclose was

sufficient to find that English’s right to a fair and impartial jury had been violated—a conclusion that

arguably implies but does not state that the juror was biased.


        The court of appeals understandably found the trial court’s observations insufficient grounds

upon which to grant a new trial. The court of appeals took particular exception to what it perceived

to be the erroneous standard that the trial court applied to reach that conclusion. The court stated

that “the only basis for [the trial court’s] finding was that all victims of sexual abuse would have

been excused for cause, even if the trial court had to do so sua sponte.” English, 2007 WL 4245412

at *3. The court viewed the trial judge’s statement as encapsulating a “belief that a victim of sexual

abuse should automatically be excused from sitting on a criminal sexual conduct jury.” Id. at *1.

The court found “no basis in law” for such a rule of “automatic exclusion.” Id. at *3.




                                                  11
        The court stressed that, under Michigan law, “when information potentially affecting a juror's

ability to act impartially is discovered after the jury is sworn, the defendant is entitled to relief only

if he can establish (1) that he was actually prejudiced by the presence of the juror in question or (2)

that the juror was properly excusable for cause.” Id. at *2 (citing People v. Daoust, 577 N.W.2d 179,

184 (Mich. Ct. App. 1998), as the controlling authority).4 Applying this two-prong test, the court of

appeals first concluded that “defendant makes no showing that he was prejudiced by the presence

of the challenged juror nor did the trial court make any such finding of prejudice.” Id. at *3. Turning

then to the exclusive focus of the trial court, the appeals court found that “[b]ecause the trial court

did not identify any proper basis for excluding the juror for cause, it erred in granting defendant's

motion for new trial.” Id. On this ground, it set aside the trial court's order and reinstated the

conviction and sentence. Id.


        Thus, the 2-1 opinion elucidated the proper state law standard at the time and highlighted the

trial court's error in applying the wrong standard. In reversing the trial court’s erroneous application

of state law without remand to the trial court, however, the court of appeals left unresolved whether

Juror A was biased or otherwise excusable for cause, as required under both McDonough and the

second prong of Daoust.


        The appeals court’s decision unambiguously reversed the trial court’s grant of a new trial,

but whether its decision should be considered an adjudication of English’s Sixth Amendment claim



        4
          Both Daoust and Manser, the case relied upon by English in his motion for a new trial, have
since been overruled by People v. Miller, 759 N.W.2d 850, 863 (Mich. 2008) (holding that a new
trial is not always required whenever a juror would have been excusable for cause, since the proper
inquiry is whether the defendant was denied his right to an impartial jury).

                                                   12
for AEDPA purposes is a question without an easy answer. Two recent Supreme Court decisions

offer guidance in dealing with the perplexing question presented here: under what circumstances a

state court decision should be deemed an adjudication of the federal law claims raised in a habeas

petition.


        In Harrington v. Richter, the defendant had petitioned the California Supreme Court for a

writ of habeas corpus, claiming, among other things, ineffective assistance of counsel. 562 U.S. –––,

131 S.Ct. 770, 784-85 (2011). The state court had denied the petition in a one-sentence ruling. The

Ninth Circuit Court of Appeals, sitting en banc, cited its own precedent for the proposition that

where the state court has not explained its reasoning the reviewing court must conduct an

independent review of the record to determine whether the state court’s decision was objectively

reasonable. Richter v. Hickman, 578 F.3d 944, 951 (9th Cir. 2009). The court concluded that the

state court decision was not a reasonable application of Supreme Court precedent and reversed the

district court’s denial of the writ of habeas corpus on that ground. Id. at 953.


        The Supreme Court reversed, holding that the Ninth Circuit had improperly conducted a de

novo review, rather than first addressing the threshold issue under § 2254(d)(1): whether fairminded

jurists could disagree that the arguments or theories which supported or could have supported the

court’s decision are inconsistent with the holding in a prior decision of the Supreme Court. Richter,

131 S.Ct. at 786. As to the subsidiary question of adjudication, the Court declared that the

defendant’s claims should be regarded as adjudicated, the brevity of the state court’s order

notwithstanding: “[Sec.] 2254(d) does not require a state court to give reasons before its decision

can be deemed to have been ‘adjudicated on the merits.’” Id. at 785. “When a federal claim has been


                                                 13
presented to a state court and the state court has denied relief, it may be presumed that the state court

adjudicated the claim on the merits in the absence of any indication or state-law procedural

principles to the contrary.” Id. at 784-85 (emphasis added).


        Even more recently, in Johnson v. Williams, a state appeals court was faced with a claim that

the trial court’s dismissal of a juror had violated defendant’s rights under both the Sixth Amendment

and the California Penal Code. ––– U.S. –––, 133 S.Ct. 1088 (2013). The defendant’s brief did not

clearly distinguish between these two lines of authority. Id. at 1093. The appeals court held that the

juror had been properly dismissed for bias, citing a mix of state law and Supreme Court precedent

in support. Id. The decision did not expressly state whether it was deciding the state law claim, the

federal law claim, or both. Id.


        Reviewing the denial of the defendant’s habeas petition, the Ninth Circuit declined to afford

AEDPA deference to the California Court of Appeal’s decision, finding that “when a court devotes

many pages to explaining its reason for denying one claim, and then says absolutely nothing that

even acknowledges the existence of a second claim, there is reason to think that it is more likely that

the court simply neglected the issue and failed to adjudicate the claim.” Williams v. Cavazos, 646

F.3d 626, 639 (9th Cir. 2011) (internal quotation marks omitted). The court concluded that it was

“obvious, not theoretical or speculative, that Williams’s constitutional claim was not adjudicated at

all, and so the Richter presumption is overcome.” Id. (internal quotation marks omitted).


        The Supreme Court reversed, holding that the reasoning in Richter applies to a state court

opinion that addresses some but not all of a defendant’s claims, as well as a state court order that

does not expressly address any of defendant’s claims: “When a state court rejects a federal claim

                                                   14
without expressly addressing that claim, a federal habeas court must presume that the federal claim

was adjudicated on the merits—but that presumption can in some limited circumstances be

rebutted.” Williams, 133 S.Ct. at 1096 (emphasis added). The Court held that a number of factors

in the case before it supported the presumption that the federal claims had been adjudicated: the

close similarity between the state law and Sixth Amendment claims; the state appeals court’s

reliance on Supreme Court precedent, as well as state case law which discussed Supreme Court

precedent; and the fact that the defendant treated her state and federal claims as interchangeable. Id.

at 1098-99. The presumption must be rebuttable, the Court cautioned, because “an irrebuttable

presumption that state courts never overlook federal claims would occasionally miss the mark.” Id.

at 1097.


       The circumstances of the present case contrast with these Supreme Court precedents. Unlike

the state court’s decision in Richter, the Michigan Court of Appeals’ decision did provide a richly

developed analysis. But, rather than a decision on the merits of English’s state law and Sixth

Amendment claims, the decision was a judgment on the trial court’s misunderstanding of the law.

In contrast to Williams, the Michigan court did not make a determination as to whether English was

denied his right to a fair and impartial jury, either under the applicable standard set forth in

McDonough or under state law. By simply negating the trial court’s ruling, without making its own

finding as to whether Juror A was biased or otherwise excusable for cause, and without remanding

for further proceedings under the proper legal standard, the court of appeals appears to have left

English’s Sixth Amendment and state law claims unresolved as to their merits.




                                                  15
        The dissenting opinions from both the Michigan Court of Appeals and the Michigan Supreme

Court support such a conclusion. The dissenting judge on the appeals court panel, Judge White,

agreed with the majority that the trial court had applied an improper standard and that “a victim of

sexual assault is not automatically excusable for cause.” English, 2007 WL 4245412 at *5. But, she

pointed out, “it does not follow that the juror was not, in fact, excusable for cause,” and she dissented

on grounds that the case should be remanded to the trial court for final adjudication, rather than

simply reinstating the verdict. Id. She aptly described what an adjudication of English’s juror bias

claim should rightly entail:


        A trial court is not obliged to accept a juror's declaration that the juror is not biased
        if there is reason to doubt the assertion. Rather, a trial court must make its own
        determination, taking into account all the circumstances, including the juror's
        statements and demeanor, whether the juror can be fair and impartial. Here, the trial
        court should make a determination on remand, considering the circumstances of the
        voir dire, the later disclosure, the credibility of the juror's explanation and declaration
        of impartiality, and any other relevant factors.

Id.


        Similarly, the dissent by two Justices of the Michigan Supreme Court points to the issue left

undecided: “[We] would remand this case to the trial court for reconsideration under the appropriate

standard, as explained in the partially dissenting opinion in the Court of Appeals, of whether the

juror was excusable for cause.” English, 743 N.W.2d at 910.


        Although English’s counsel misapprehended Manser’s application to the case, the evidence

presented in support of his claim was substantial and entirely pertinent to the determination of

implied bias under McDonough: the juror's history of sexual abuse, her withholding of this history,

and her testimony as to why this information was withheld. Thus, while counsel’s legal argument

                                                    16
may have been markedly different had he possessed a firmer understanding of the law underlying

his Sixth Amendment claim, it is not clear that the evidence presented would have been, or should

have been, substantially different. Consequently, we cannot embrace our dissenting colleague’s

conclusion that English did not meet his evidentiary burden of showing bias and is therefore not

entitled to habeas relief. We conclude instead that whether English has met this burden of proof has

yet to be decided: it was not decided by the trial court because its grant of a new trial, based upon

a legal standard contrary to both state law and Supreme Court precedent, was reversed, and it was

not decided by the appeals court because it reversed without remand for further fact-finding by the

trial court.


                                                   D.


        In the district court’s view, the central issue raised by English’s habeas petition was whether

the decision of the court of appeals constituted a reasonable application of established Supreme

Court precedent. Finding that the state law applied by the court of appeals was consistent in its

central inquiry with the federal standard, the district court deferred to the state court’s judgment and

summarily dismissed the petition. Missing from the district court’s analysis is a determination of

whether English’s claims had been adjudicated by the state court. Without such a determination, the

deference to the state court by the district court was inappropriate.


        The district court rendered its decision in 2009, before the Supreme Court had decided

Richter and Williams. Sixth Circuit case law at that time was fairly consistent in holding that a

finding of adjudication required an explicit assessment by the state court of the federal claim at issue.

See, e.g., Danner v. Motley, 448 F.3d 372, 376 (2006) (finding no adjudication where the Kentucky

                                                   17
Supreme Court examined only state law in its analysis); Lyell v. Renico, 470 F.3d 1177, 1182 (2006)

(conducting de novo review because state court did not assess the merits of a claim properly raised

in a habeas petition); Newton v. Million, 349 F.3d 873, 878 (6th Cir. 2003) (same); but c.f. Dennis

v. Mitchell, 354 F.3d 511, 521 (6th Cir. 2003) (holding that the state court’s decision was a

reasonable application of McDonough although the Ohio Supreme Court made no mention of

McDonough in its decision); Baker v. Craven, 82 F. App’x 423, 428 (6th Cir. 2003) (applying

AEDPA deference even though the state court had analyzed the federal claims only under state law).

Under this precedent, the district court’s deference to the state court under AEDPA would almost

certainly have been ruled by this court to be reversible error.


       In Richter and Williams, the Supreme Court altered the legal terrain by establishing a

rebuttable presumption that the defendant’s claims were adjudicated on the merits by the state court.

In the case before us, the plain language of the state court’s opinion itself appears to rebut the

presumption. Unlike in Richter, the state appellate court’s opinion was carefully reasoned and left

no uncertainty as to the basis for its holding. Unlike in Williams, the peculiarly-worded holding

addressed neither the merits of the defendant’s state claim nor his federal claim, and allowed no

further proceedings to resolve those claims. Whether these distinguishing features of the state court’s

treatment of English’s appeal are sufficient to rebut the presumption of adjudication is a subtle

question of law which must be decided as a matter preliminary to any other inquiry.


                                                 III.


       Since AEDPA’s deferential standard of review applies only to claims that were adjudicated

on the merits in state court proceedings, we conclude that the district court’s deference to the

                                                  18
Michigan courts was an improper basis for denying English’s habeas petition without the requisite

determination that his federal claim had been adjudicated on the merits. We further conclude that,

given the complex procedural, evidentiary, and constitutional questions raised by the petition, it was

an inappropriate candidate for summary dismissal under Rule 4, without full briefing by the parties

and without the benefit of the entire state court record.


        We must, therefore, return the matter to the district court for a determination of the

adjudication question, applying the Richter/Williams rebuttable presumption. The court’s further

proceedings should be based upon full briefing by the parties and a review of the complete state court

record. On this basis, if the court determines that the presumption of adjudication is rebutted, it must

conduct de novo consideration of the merits of English’s Sixth Amendment claim regarding the

misconduct of Juror A. If the court should determine that the presumption is not rebutted and

AEDPA deference is warranted, the court must still evaluate English’s Sixth Amendment claim

through the AEDPA lens, applying the McDonough test to determine whether English was denied

his Sixth Amendment right to be tried by a fair and impartial jury, as that right is elucidated by

Supreme Court precedent.


        Based upon the foregoing, we VACATE and REMAND the petition to the district court for

further proceedings consistent with this opinion.




                                                  19
        SUHRHEINRICH, J., dissenting:


                                                  I.


        Because I believe that Petitioner did not meet his burden of establishing the basis for a new

trial under McDonough Power Equipment Inc. v. Greenwood, 464 U.S. 548 (1984), and the state

trial court made the requisite finding for purposes of the federal claim that Juror A was not biased

in any event, I dissent. I also think this court lacks authority to grant the relief provided by the

majority.


                                                  A.


        As the majority observes, in his motion for a new trial, Petitioner claimed violations of both

his federal and state constitutional rights to an impartial jury.


        As the majority acknowledges, in order to obtain a new trial based on a juror’s nondisclosure

of a material fact during voir dire, the petitioner must demonstrate that the juror’s nondisclosure

would have provided a valid basis for a challenge for cause, McDonough, 464 U.S. at 556, such as

actual bias, Zerka v. Green, 49 F.3d 1181, 1186 (6th Cir. 1995).


        As the majority points out, the prevailing state law as understood by Petitioner and the trial

court differed from the federal standard under McDonough. Thus, it was incumbent on Petitioner

to demonstrate not only that Juror A was excusable for cause for purposes of his state law claim, but

also to demonstrate bias to support his federal claim.




                                                  20
       In arguing for a new trial at the evidentiary hearing on his motion for a new trial, Petitioner

asserted that his “argument and position is that his federal and state constitutional rights to an

impartial jury were violated when jurors did not disclose, during voir dire, information that would

have led to those jurors either being challenged for cause, or alternatively peremptorily challenged.”

Mot. for New Trial, Dec. 8, 2006, at 7. Petitioner argued that “it is irrelevant whether the admission

was intentional or accidental,” id. at 9, and that, as set forth in People v. Manser, 645 N.W.2d 65

(Mich. App. 2002), “there is no need to show that the Defendant was prejudiced, and therefore it is

irrelevant whether Juror A deliberated without being affected by her prior sexual assault.” Mot. for

New Trial at 10-11.


       The prosecutor in turn argued that under Michigan law, a juror’s personal experience with

a similar crime does not automatically render someone excusable for cause: rather the court must

also assess whether the individual juror has any bias or problems with being impartial. Id. at 20.

The prosecutor pointed out that Juror A testified that she had acted in an impartial manner, both in

her affidavit and her testimony at the evidentiary hearing. Id. at 22. The prosecutor noted too that

Juror A’s experience was not similar to the victims in the case at issue. Id. at 23. Finally, the

prosecutor observed that Juror A had not lied. Id. at 24.


       The trial court agreed with Petitioner and granted the motion for a new trial, believing itself

bound by Manser. Id. at 28. The court stated in critical part:


              I’m going to issue my decision now . . . . I’m going to grant the motion for a
       new trial. I think I’m bound by Manser. It’s almost exactly on point in regards to
       Juror A.



                                                 21
        There was a material omission on the part of Juror A. By her own testimony
during the September special hearing, her belief was that she had disclosed it. She
knew it was important information for the Court and she honestly thought that she
had told the Court that she had been a prior victim of a criminal sexual conduct–a
sexual assault by her father.

         It was when she was shown the transcript that she saw that she hadn’t done
it. I believe she testified that she was surprised because she knew it was important,
and I think she also said that she was surprised that having disclosed that she would
have been a juror. But she also felt that she was fair and impartial, and that’s where
I don’t think that the case law supports that.



        ....



        The fact that Juror A is convinced that she was fair and impartial in this case,
I don’t believe is relevant. I think that she had the duty to disclose it. She–she knew
she had the duty to disclose it. In her own words, the thought she had.

       So, it’s not a matter that it wasn’t a question that wasn’t asked, it was a
question that was asked, and she thought she answered it.

        ....

         And as a rule they’re all excused due to their prior experiences, because
although they may be qualified as juror [sic] and may feel that they’d be fair and
impartial, it’s felt that it would be better to have somebody without those experiences
to sit on the jury. They’re usually excused for cause or by peremptory challenge.

        Manser indicates that that failure to disclose basically violated Mr. English’s
right to a fair and impartial jury–to have a jury that disclosed it.

        ....

        Now that–so, for that reason, I would grant the Defendant’s motion for a new
trial because it was a criminal sexual conduct case; she’d been a prior victim of
criminal sexual conduct; she knew it was important. She thought she’d answered it,
but she hadn’t. If she had answered it,[ trial counsel] or the Court, sua sponte, would
have excused her for cause, or [trial counsel’s] declaration is that he would have
asked to have her excused, or would have used a peremptory.




                                          22
Id. at 28-31(emphasis added).


        This was error under state law, as pointed out by the state court of appeals. See People v.

English III, No. 269887, 2007 WL 4245412, at *3 (Mich. App. Dec. 4, 2007) (per curiam) (holding

there is no basis in state law for an automatic exclusion of victims of sexual abuse in criminal sexual

conduct cases). Thus, Petitioner did not establish “a valid basis for a challenge for cause” under

then-existing state law.5


        But, as noted, Petitioner also presented a federal claim, which required a showing of actual

bias. Petitioner did not make this showing. In fact, although the majority disputes this, the trial

court actually credited—albeit while ruling on the state law claim—Juror A’s testimony on this

point: “But she also felt that she was fair and impartial, and that’s where I don’t think that the case

law supports that. . . . The fact that Juror A is convinced that she was fair and impartial in this case,

I don’t believe is relevant.” Mot. for New Trial at 28-30. Not only did Petitioner not challenge this

finding, he never asked the trial court to make a factual determination that Juror A was not credible

when she said she was not biased and had been a fair and impartial juror despite her prior experience.

See Dennis v. Mitchell, 354 F.3d 511, 520 (6th Cir. 2003) (stating that an individual juror’s bias at


        5
          Had Juror A testified that her past experience affected her judgment, or that she had not been
a fair and impartial juror as a result of her past experiences, Petitioner would have established actual
bias as well as “a valid basis for a challenge for cause.” But Juror A testified under oath to just the
opposite: On direct examination by Petitioner at the evidentiary hearing on the motion for a new
trial, Juror A testified that “What had happened to me years ago happened to me years ago and I
don’t have a problem with it. I don’t - - never even thought for a minute anything was comparable.
No one was prosecuted. I didn’t talk to the police.” Special Hearing, Sept. 29, 2006, at 14. On
cross-examination the prosecutor asked: “Did your prior victimization in any way create a bias for
you or a problem with you in evaluating the case against Warren English III?” Id. at 16. Juror A
responded: “No.” Id.


                                                   23
a state criminal trial is a question of fact) (citing Patton v. Yount, 467 U.S. 1025, 1036 (1984)). In

other words, Petitioner did not establish actual bias on the part of Juror A, instead relying

exclusively on the legal argument that Juror A’s prior experience was an automatic basis for a

challenge for cause. McDonough squarely places that burden on the shoulders of the party seeking

the new trial. See McDonough, 464 U.S. at 556. Petitioner did not meet that burden, and as a result,

did not establish a Sixth Amendment violation entitling him to a new trial under McDonough.


       In fact, this is basically what the district court held:


               In both the state appellate courts and in his habeas application, Petitioner has
       made no effort to demonstrate actual bias by Juror A. Instead, his brief focuses
       exclusively on whether the juror would have been excused for cause by the trial court
       presiding over this case-not whether excuse for cause was legally required by the
       circumstances. Petitioner claims that, because the trial court acted to remove all
       jurors who reported a close connection to sexual abuse, it would also have excused
       Juror A. In the alternative, Petitioner argues that, had the court not excused Juror A
       for cause, Petitioner would have exercised a peremptory challenge.



               The Supreme Court expressly rejected the notion that the societal resources
       invested in a trial should be wasted simply in order to “recreate the peremptory
       challenge process because counsel lacked an item of information which objectively
       he should have obtained from a juror on voir dire examination.” McDonough, 464
       at 555. For the same reasons, the fact that the trial judge was routinely using a loose
       standard for finding cause does mean that Petitioner is entitled to the application of
       such a loose standard. The Constitution protects only against substantial unfairness,
       not against the loss of a tactical advantage. See id. (rejecting concept of abstract
       perfection at trial); Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d
       78 (1982) (“[D]ue process does not require a new trial every time a juror has been
       placed in a potentially compromising situation.”).



               Here, the sexual abuse in issue was significantly different from the sexual
       assault charged and was remote in time. Moreover, the state court found that the juror
       was not intentionally dishonest and had expressed her belief that she was impartial.


                                                  24
        Further, Petitioner introduced no evidence of actual bias. On these facts, Petitioner
        has failed to show the sort of extreme circumstances exist that would warrant
        dismissal for cause. Zerka, 49 F.3d at 1186 n. 7.



English v. Berghuis, No. 1:09-cv-1012, 2009 WL 5171885, at *11-12 (W.D. Mich. Dec. 21, 2009).

(applying AEDPA deference). The Michigan Court of Appeals also held that Petitioner made no

showing that he was prejudiced by Juror A’s presence at trial. People v. English, No. 269887, 2007

WL 4245412, at *3 (Mich. App. 2007) (per curiam).


        In short, under a de novo standard of review, Petitioner did not meet his burden and is not

entitled to relief by a federal habeas court. The relief provided by the majority here is improper and

in disregard of state sovereignty of proper use of the writ of habeas corpus. See, e.g., Engle v. Isaac,

456 U.S. 107, 128 (1982) (“The States possess primary authority for defining and enforcing the

criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional

rights. Federal intrusions into state criminal trials frustrate both the States’ sovereign power to

punish offenders and their good-faith attempts to honor constitutional rights.”).


                                                   B.


        As noted, the state trial court judge also made the requisite factual finding that Juror A had

been a fair an impartial juror, although perhaps not in a format suitable to the majority’s liking.

Thus, I just do not see the point in vacating and remanding for further proceedings because the

existing record is sufficient to determine whether Petitioner’s Sixth Amendment right to be tried by

a fair and impartial jury was protected. Juror A testified that her prior victimization did not create

a bias in her or affect her judgment in evaluating Petitioner’s case, see supra, at n.1, and the state

                                                   25
trial court judge credited her belief that she had been fair and impartial. As the majority knows, that

factual finding is entitled to a presumption of correctness. See Wainwright v. Witt, 469 U.S. 412, 326

(1985) (citing Patton v. Yount, 467 U.S. 1025 (1984)). Based on that presumed correct factual

finding by the state trial court judge, I do not see how any judge could reach any legal conclusion

but that Juror A was not actually biased.


       In a disingenuous attempt to get around the law of habeas, the majority “offers” the state trial

court’s “reflections,” found in the state trial court’s “Order Denying Defendant’s Request for Relief

From Judgment.” “Reflections,” is the operative word here, because as the majority is constrained

to point out, the state trial court itself noted Defendant’s motion addressed arguments “made to and

disregarded by the [Michigan] Court of Appeals and [Michigan] Supreme Court.” To the extent that

the state trial court “thought” something different than what it “stated” in its ruling on English’s

motion for a new trial, it is not legally relevant and an improper basis for habeas relief.


                                                 C.


       Finally, the majority avoids explaining its authority to order the district court to evaluate the

merits of English’s Sixth Amendment claim regarding the misconduct of Juror A (whether de novo

or with AEDPA deference). It cannot utilize 28 U.S.C. § 2254(e)(2), which provides that:


       (2) If the applicant has failed to develop the factual basis of a claim in State court
       proceedings, the court shall not hold an evidentiary hearing on the claim unless the
       applicant shows that--

       (A) the claim relies on--

       (i) a new rule of constitutional law, made retroactive to cases on collateral review by
       the Supreme Court, that was previously unavailable; or


                                                  26
        (ii) a factual predicate that could not have been previously discovered through the
        exercise of due diligence; and

        (B) the facts underlying the claim would be sufficient to establish by clear and
        convincing evidence that but for constitutional error, no reasonable factfinder would
        have found the applicant guilty of the underlying offense.



28 U.S.C. § 2254(e)(2) (emphases added). As discussed above, and as reflected in the majority’s

recitation of the facts underlying the evidentiary hearing on the motion for a new trial, Petitioner had

ample opportunity at the evidentiary hearing to develop a factual predicate for actual bias—and

chose not to have the state trial court make the requisite factual finding. In fact, the majority admits

that “the evidence presented in support of [English’s] claim was substantial and entirely pertinent

to the determination of implied bias under McDonough.” In other words, the “factual predicate” was

clearly discovered, so § 2254(e)(2) not only fails to provide authority for the majority’s ruling, it

actually precludes it.


        Notwithstanding, the majority thinks it can order further proceedings, even though English

had the opportunity to make his Sixth Amendment argument at the hearing on his motion for a new

trial, because “counsel’s legal argument may have been markedly different had he possessed a firmer

understanding of the law underlying his Sixth Amendment claim.” Not surprisingly, it fails to

provide any authority for this proposition. The simple truth is that English failed to properly present

and preserve his federal Sixth Amendment claim in the state court, despite the fact that he raised the

issue there, and was given ample opportunity to develop it and to meet his burden of proof under

McDonough. The majority may be unhappy about that fact, but it does not have the authority in

habeas jurisdiction to recreate the state court record.


                                                  27
                                             II.


For these reasons, I respectfully dissent.




                                             28
