                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                  F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                  March 22, 2006
                         FOR THE FIFTH CIRCUIT
                                                              Charles R. Fulbruge III
                                                                      Clerk
                               No. 04-70023


                             Carl L. Brooks
                                               Petitioner-Appellant,

                                  versus

                       Doug Dretke, Director,
               Texas Department of Criminal Justice,
                 Correctional Institutions Division
                                          Respondent-Appellee.


           Appeal from the United States District Court
                 For the Western District of Texas



                 ON SUGGESTION FOR REHEARING EN BANC


             (Opinion 7/20/05, 5th Cir., 418 F.3d 430)


Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     The State of Texas asks us to reconsider our grant of habeas
relief to Carl L. Brooks.1     For the following reasons, the petition
for rehearing by the panel is denied.       The court having been polled
at the request of one of the members of the court and a majority of
the judges who are in regular active service and not disqualified
not having voted in favor (FED. R. APP. P. and 5th CIR. R. 35),
Rehearing En Banc is DENIED.




     1
      See Brooks v. Dretke, 418 F.3d 430 (5th Cir. 2005).
      The state presents two issues meriting discussion. First, the
state contends that this Court, in granting Brooks habeas relief,
relied upon a legal theory that is not “clearly established” by the
Supreme Court.2      Second, the state contends that this Court, in
violation of Teague v. Lane,3 announced a new constitutional rule
requiring the mandatory exclusion of certain venire members.                  We
reject both contentions.
                                       A
      While the panel opinion did not recite the now-rote hurdles to
relief mandated by AEDPA, it cannot be said that the opinion failed
to scrupulously adhere to the deferential standard of review
imposed on inferior federal courts considering claims for a writ of
habeas corpus.4     We maintain that the doctrine of implied bias is
“clearly established Federal law as determined by the Supreme
Court.”5


      2
       See 28 U.S.C. § 2254(d)(1)(limiting an inferior federal court’s power to
grant habeas relief to state court decisions that “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”).
      3
       489 U.S. 288 (1989).

      4
       See Brooks, 418 F.3d at 435 n.26 (“Precedent to and implicit in our
finding of implied bias is the judgment that reasonable jurists could not
disagree with our legal conclusion.”); id. at 433 (“[W]hile we are persuaded that
the principle of implied bias is settled federal law, its application has been
confined to a narrow range of cases.”); see also Williams v. Taylor, 529 U.S.
406, 407 (2000) (concluding that a state court decision can be an “unreasonable
application” of Supreme Court precedent if “the state court identifies the
correct governing rule . . . but unreasonably applies it to the facts of the
particular state prisoner’s case” or if the state court “unreasonably refuses to
extend [a] principle to a new context where it should apply”).

      5
        28 U.S.C. § 2254(d)(1); see also United States v. Wood, 299 U.S. 123, 134
(1936) (“The bias of a prospective juror may be actual or implied; that is, it
may be bias in fact or bias conclusively presumed as [a] matter of law.”);
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556-57 (1984) (Blackmun,
Stevens, and O’Connor, JJ., concurring) (recognizing that “in exceptional
circumstances . . . the facts are such that bias is to be inferred”); id. at 558
(Brennan and Marshall, JJ., concurring in the judgment) (same); Tumey v. Ohio,
273 U.S. 510, 532 (1927) (implying bias and reversing conviction because of a
financially interested judge, even though there was no evidence of actual bias).
The pedigree of the implied bias doctrine has even older origins. See United

                                      -2-
      The implied bias doctrine neither starts or ends with the
Supreme Court’s decision in Smith v. Phillips.6              There, the Court,
relying on United States v. Remmer (“Remmer I”),7 held that in most
cases the remedy for claims of juror bias is a post-event hearing,
in   which      the   trial   judge    can   examine   the   juror   and   obtain
assurances that, despite the event leading to the claim of bias,
the person is able to continue serving as an impartial juror.8
Justice O’Connor, concurring in the judgment, wrote separately to
emphasize that, in some circumstances, a juror’s assurances could
not suffice.9         She explained,
      Some examples might include revelation that the juror is
      an actual employee of the prosecuting agency, that the
      juror is a close relative of one of the participants in
      the trial or the criminal transaction, or that the juror
      was a witness or somehow involved in the criminal
      transaction. Whether or not the state proceedings result
      in a finding of “no bias,” the Sixth Amendment right to
      an impartial jury should not allow a verdict to stand
      under such circumstances.10



States v. Burr, 25 F. Cas. 49, 50 (D. Va. 1807) (Marshall, C.J., riding circuit)
(stating that even with individuals under the influence of personal prejudices
who state an ability to serve as fair and impartial jurors, there are
circumstances in which “the law will not trust him”); Dr. Bonham’s Case, 77 Eng.
Rep. 646, 652 (C.P. 1610) (Coke, J.) (stating that no man shall be a judge in his
own cause); see also Dyer v. Calderon, 151 F.3d 970, 984 (9th Cir. 1998) (en
banc) (describing the implied bias doctrine as “a rule so deeply embedded in the
fabric of due process that everyone takes it for granted”).
      6
       455 U.S. 209 (1982).
      7
       347 U.S. 227 (1954) (“Remmer I”).
      8
       Smith, 455 U.S. at 217-18 (recognizing that “due process does not require
a new trial every time a juror has been placed in a potentially comprising
situation”); see also Brooks, 418 F.3d at 433-34 (recognizing as much and citing
cases); Solis v. Cockrell, 342 F.3d 392, 399-400 (5th Cir. 2003); United States
v. Sylvester, 143 F.3d 923, 931-35 (5th Cir. 1998).
      9
       Smith, 455 U.S. at 224 (O’Connor, J., concurring) (“I read the Court’s
opinion as not foreclosing the use of implied bias in appropriate situations,
and, therefore, I concur.”).
      10
           Id. at 222 (O’Connor, J., concurring).

                                         -3-
Following the law in the Fifth Circuit,11 we stated in the panel
opinion that “[o]ur question is whether Garcia’s conduct is of the
genre of cases Justice O’Connor pointed to in her concurring
opinion in Phillips: juror conduct not salvageable by post event
hearings.”12       We answered that question in the affirmative.
      Nothing in Smith rejects the doctrine of implied bias, as
illustrated by Justice O’Connor’s concurring opinion, and the full
history of Remmer bears this out.                 Remmer I involved only the
defendant’s         bare    accusations      of    improper   juror    contact.
Recognizing the seriousness of the charges, if true, the Supreme
Court remanded for an evidentiary hearing––the “hearing” remedy
appropriated by Smith––to put of record “what actually transpired
[and] whether the incidents that may have occurred were harmful or
harmless.”13       Nothing in Remmer I rejects the notion that sometimes
courts must refuse to accept a juror’s assurances of impartiality;
it was only the posture of Remmer I, with the undeveloped record,
that prevented the Court from deciding that question on the merits.
      Following remand and an evidentiary hearing, the lower courts
concluded the incident was harmless,14 and the Supreme Court granted


      11
       See United States v. Scott, 854 F.2d 697, 700 (5th Cir. 1988) (finding,
under Smith, that juror was impliedly biased because his brother was a deputy
sheriff in an office that investigated the defendant’s case); see also United
States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976) (recognizing that juror bias
can come to light in two ways: “by express admission or by proof of specific
facts showing such a close connection to the circumstances at hand that bias must
be presumed”).
      12
           Brooks, 418 F.3d at 434.
      13
         Remmer I, 347 U.S. at 228-29 (noting that the record contained only an
affidavit from the defendant’s attorney and several newspaper articles reporting
the incident and that the district court denied the motion for a new trial
without holding a hearing); United States v. Remmer (“Remmer II”), 350 U.S. 377,
379-80 (commenting that “[i]t was the paucity of information relating to the
entire situation coupled with the presumption which attaches to the kind of facts
alleged by petitioner” that “made manifest the need for a full hearing.”).

      14
         United States v. Remmer, 122 F. Supp. 673, 675 (D. Nev. 1954), aff’d, 222
F.2d 720, 720 (9th Cir. 1955).

                                       -4-
certiorari a second time.          It was then, in Remmer II, that the
Court found, now with full understanding of the incident, that the
evidence “reveals such a state of facts that neither [the juror]
nor anyone else could say that he was not affected in his freedom
of action as a juror.”15        There, a juror in a tax evasion case was
offered a bribe in return for a favorable defense verdict.                      The
juror reported the matter to the trial judge, who first disregarded
it as a joke but later informed the FBI.            An FBI agent interviewed
the   juror,   but   to   the   juror,   it   was   not    clear   whether      the
government was contemplating prosecuting the juror for his role.
The juror later testified that during the course of the trial, he
was “under a terrific pressure.”16              On these facts, the Court
quickly concluded no person could serve as an impartial juror. The
phrase “nor anyone else” is critical here: Remmer II illustrates
that there are certain factual circumstances, as illuminated by
Justice    O’Connor’s     concurring     opinion    in    Smith,   in   which    no
reasonable person could not be affected in his actions as a juror
and in which the Constitution refuses to accept any assurances to
the contrary.17       In short, Remmer II is an application of the


      15
         Remmer v. United States, 350 U.S. 377, 381 (1956) (“Remmer II”) (emphasis
added). The Court continued, “[The juror] had been subjected to extraneous
influences to which no juror should be subjected, for it is the law’s objective
to guard jealously the sanctity of the jury’s right to operate as freely as
possible from outside unauthorized intrusions purposefully made.” Id. at 382.
      16
         Remmer II, 350 U.S. at 381-82 (“As he sat on the jury for the remainder
of the long trial and as he cast his ballot, [the juror] was never aware of the
Government’s interpretation of the events to which he, however unwittingly, had
become a party.”).
      17
       The Court’s application of the implied bias doctrine in Remmer II was not
good for one day only. In Leonard v. United States, 378 U.S. 544 (1964), the
Supreme Court implicitly upheld a claim of implied bias. There, the petitioner
had been convicted in two successive trials; the jury in the first case announced
its verdict in open court in the presence of persons ultimately selected to serve
as jurors in the second case. Id. at 554. Recognizing the heightened danger of
bias, the Supreme Court reversed the second conviction, stating that
“[p]rospective jurors who have sat in the courtroom and heard a verdict returned
against a man charged with [a] crime in a similar case immediately prior to the
trial of another indictment against him should be automatically disqualified from

                                       -5-
implied bias doctrine; it is clearly established Federal law as
determined by the Supreme Court.
       Nothing in Smith rejects Remmer II.               Justice O’Connor made it
plain in an unchallenged statement that the majority opinion was
“not        foreclosing     the   use   of     implied     bias   in   appropriate
situations.”18        This observation is no more than the holding of the
Court in Remmer II.          The majority opinion, while citing Remmer I,
offered no suggestion that its holding was a retreat from Remmer
II.    Some lower federal courts have read Smith as rejecting Remmer
I’s “presumption of prejudice” in the context of outside influences
on jury members.19            This does not touch the Court’s ultimate
conclusion, in Remmer II, that under certain limited circumstances,
no juror can serve impartially.              The presumption of prejudice in
Remmer I put the burden on the government to show a juror’s
impartiality. Who bears the burden of proving prejudice is not our
question.
       Bound by the strictures of AEDPA, our question is whether the
state court’s decision was an objectively unreasonable application
of the doctrine of implied bias.               The state court concluded that
the events surrounding the arrest of juror Garcia, during Brooks’s
capital-murder trial, were not sufficient to imply bias.                       We
disagree.         Juror Garcia was arrested and booked for carrying a
loaded, .25 caliber pistol into the courthouse on the day Brooks’s
sentencing hearing started.              Facing the possibility of felony
prosecution, Garcia’s fate rest in the hands of the same prosecutor
now seeking the death penalty in Brooks’s trial.                       Throughout


serving at the second trial.” Id. When jurors are “automatically disqualified,”
no amount of assurance from them can satisfy the Sixth Amendment’s impartial jury
guarantee.

       18
            Smith, 455 U.S. at 224 (O’Connor, J., concurring).

       19
            See Parker v. Head, 244 F.3d 831, 839 n.6 (11th Cir. 2001) (collecting
cases).

                                         -6-
sentencing, Garcia never knew whether he would be prosecuted.                 He
testified that the sentencing hearing was “one entire week of
hell,” that he suffered “unrelenting embarrassment,” and that
although he thought the matter would be held in confidence, it was
“the head story at twelve, five, six and ten o’clock for four
straight days.”20        The prosecutor’s power over Garcia presented an
intolerable risk, one that denied Brooks his constitutionally
entitled impartial jury, and we maintain that no reasonable jurist
could disagree with our legal conclusion.
                                          B
      Next, the state contends that Brooks requires a finding of
implied bias any time the district attorney has the power to
prosecute a sitting juror for a misdemeanor, in violation of the
ban on new rules in postconviction proceedings.21                We disagree.
Brooks does not go so far.22          This is only an application of settled
Supreme Court law to a set of facts, and it does not run afoul of
Teague’s prohibition on creating new law.23




      20
           Brooks, 418 F.3d at 435.
      21
           See Teague v. Lane, 489 U.S. 288, 301 (1989).
      22
       Brooks, 418 F.3d at 435 (“We do not suggest that being charged with
unlawfully carrying a weapon alone disqualified Garcia for jury service under
state law or that any outstanding misdemeanor charge should support a finding of
implied bias. It is rather the sum of all factual circumstances surrounding this
juror––in particular, the power of the District Attorney, and the timing and
sequence of events––that compels this conclusion.”).
      23
         See Burdine v. Johnson, 262 F.3d 336, 350-57 (5th Cir. 2001) (en banc)
(Higginbotham, J., concurring) (noting that the “distinction between cases
presenting new rules and cases presenting new facts is central to the functioning
of Teague” and that “Teague does not bar a federal court from reviewing the
application of an old rule to new facts in state court”).

                                         -7-
