Holder v. Palmer , 588 F.3d 328 ( 2009 )

KAREN NELSON MOORE, Circuit Judge,

dissenting.

Because I believe that at least three of the impaneled jurors showed actual bias and that their assurances of impartiality should not have been believed, I would hold that Holder’s trial counsel’s failure to challenge the seating of these jurors constituted ineffective assistance of counsel and that Holder is entitled to a writ of habeas corpus. In my view, the Michigan Court of Appeals applied a decisional rule that was contrary to clearly established Supreme Court precedent as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and this court should therefore review the merits of Holder’s claim de novo. However, even if the deferential standard of review provided by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d)(1), did apply in this case, I believe that the Michigan Court of Appeals unreasonably applied clearly established Supreme Court precedent when it held that trial counsel’s failure to challenge the seating of these jurors was not objectively unreasonable.

I. STANDARD OF REVIEW

Because this case is governed by AED-PA, this court may not grant a writ of habeas corpus on a claim adjudicated on the merits in state court unless the adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2). A state-court decision is “contrary to” federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). And “[a] state court decision will certainly be contrary to [the Supreme Court’s] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases.” Id. at 405, 120 S.Ct. 1495 (emphasis added). For example, a state-court decision would be contrary to clearly established federal law “if, in spite of the rule in [Strickland ]— that a petitioner urging ineffective assistance of counsel need only show a ‘reasonable probability’ of prejudice — a state court required the petitioner to show prejudice by a preponderance of the evidence.” Fulcher v. Motley, 444 F.3d 791, 799 (6th Cir.2006) (quoting Williams, 529 U.S. at 405-06, 120 S.Ct. 1495). When a state court applies a decisional rule that is contrary to Supreme Court precedent, the deferential standard of review of § 2254(d)(1) does not apply and de novo review is appropriate. See Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir.2006) (Gilman, J.) (“When the state court issues a decision that is contrary to federal law, we review the merits of the petitioner’s claim de novo.”); Fulcher, 444 F.3d at 799 (same); Magana v. Hofbauer, 263 F.3d 542, 551 (6th Cir.2001) (same).

In rejecting Holder’s ineffective-assistance claim, the Michigan Court of Appeals applied a decisional rule that was contrary to Strickland. Although the Michigan Court of Appeals applied a state-law standard that was generally similar to Strickland, it found in the Michigan case law an exception that required it to reject Holder’s claim. The court stated that “defense counsel’s failure to challenge a juror may not form the basis for a claim of ineffective assistance of counsel.” Joint Appendix (“J.A.”) at 24 (Mich. Ct.App. Op. at 2) (citing People v. Robinson, 154 Mich.App. 92, 397 N.W.2d 229, 231 (1986)). Strickland contemplates no such exception, nor has one been recognized in subsequent decisions of the Supreme Court. Moreover, this court has applied Strickland to grant relief based upon counsel’s failure to challenge a biased juror. See, e.g., Miller v. Webb, 385 F.3d 666, 678 (6th Cir.2004); Hughes v. United States, 258 F.3d 453, 464 (6th Cir.2001).

The Supreme Court has made clear that state-court decisions that alter or add additional requirements to Strickland should be rejected as contrary to federal law. In Williams, the Court concluded that the Virginia Supreme Court applied a standard that was contrary to Strickland when it required the prisoner to show not only deficient performance and prejudice, but also that “the result of the proceeding was fundamentally unfair or unreliable.” 529 U.S. at 394, 120 S.Ct. 1495 (internal quotation marks omitted). The Court also indicated that it would be contrary to clearly established Supreme Court precedent if a state court were to require a prisoner to demonstrate prejudice by a preponderance of the evidence, because Strickland, held that a “prisoner need only demonstrate a ‘reasonable probability that ... the result of the proceeding would have been different.’ ” Id. at 406, 120 S.Ct. 1495 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

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

II. INEFFECTIVE ASSISTANCE OF COUNSEL

“[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). In determining whether a juror was impartial, we must ask two questions: “did [the] juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed.” Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (emphasis added). Both questions are important. Not only must the juror give an affirmative promise of impartiality, but also that promise must be believable in light of what the juror has revealed and the context of the case. See Miller, 385 F.3d at 677 n. 2 (“An affirmative statement of impartiality is required to ensure that a juror is unbiased, but such a statement alone is not the determining factor. A trial court must still determine, from the context, whether such a statement is believable.”); Wolfe v. Brigano, 232 F.3d 499, 502 (6th Cir.2000) (“A court’s refusal to excuse a juror will not be upheld ‘simply because the court ultimately elicits from the prospective juror a promise that he will be fair and impartial ....’”) (quoting Kirk v. Raymark Indus., Inc., 61 F.3d 147, 156 (3d Cir.1995)).

In my view, the assurances of impartiality given by jurors Flynn, Coppinger, and Moore are simply not credible given the racial biases revealed by these jurors and the underlying facts of this case. First, Juror Flynn revealed that she held negative stereotypes about black persons’ purported propensities toward criminality and violence and that she sometimes looked down upon people of other races. Flynn stated that she believed that black men were more likely than men of other races to act upon feelings of hate or revenge by resorting to violence and that more crimes were committed by non-Caucasians than by Caucasians. Flynn also disclosed that, because her father once had been robbed by a Hispanic man, she sometimes viewed “other races” as “below [her] standards.” J.A. at 381 (R. 14-2 at 9). Although Flynn assured the judge during voire dire that she would decide the case on the evidence and would not take Holder’s race into account, Flynn never backed away from her earlier statements or acknowledged that there was any hint of racial prejudice in her views.

In my view, Flynn’s disclosures revealed actual racial bias that required her removal from the jury pool. See Rosales-Lopez v. United States, 451 U.S. 182, 191, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (warning that “ ‘[n]o surer way could be devised to bring the processes of justice into disrepute’ ” than “ ‘to permit it to be thought that persons entertaining a disqualifying [racial] prejudice were allowed to serve as jurors’ ”) (quoting Aldridge v. United States, 283 U.S. 308, 314-15, 51 S.Ct. 470, 75 L.Ed. 1054 (1931)). Flynn revealed that she not only harbored negative stereotypes about criminality and violence among African-American men, but also sometimes viewed “other races” as “below [her] standards.” J.A. at 381 (R. 14-2 at 9). Flynn never retracted these stereotypical views. This was a racially charged criminal prosecution of a black male on charges of sexual misconduct against a white female victim with whom he had a relationship. Under these circumstances, Flynn’s subsequent assurances of impartiality were simply not credible. Even if Flynn honestly believed that she could be fair, the racial stereotypes that she harbored created an unacceptable risk that she would draw unreliable inferences about Holder’s conduct and that she would be unable to fairly weigh the evidence. See Antony Page, Batson’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L.Rev. 155, 160 (2005) (“Once stereotypes have formed, they affect us even when we are aware of them and reject them. Stereotypes can greatly influence the way we perceive, store, use, and remember information. Discrimination, understood as biased decision-making, then flows from the resulting distorted or unobjective information.” (footnote omitted)).

Jurors Coppinger and Moore also revealed negative racial views, both jurors expressing a distaste for interracial relationships. Coppinger told the court that interracial relationships did not meet the “standard” she had set for herself and her two daughters. J.A. at 383 (R. 14-2 at 11). The court then presented Coppinger with a stark hypothetical situation in which two suitors pursued her daughter — one a black man who was successful, personable, “makes a nice income, and thinks the world of your daughter,” and the other a white man with “long, greasy hair, earrings in his nose and his tongue and his ears, and tattoos all over his body.” J.A. at 378 (R. 14-2 at 12). When asked which suitor she would prefer, Coppinger admitted that it “wouldn’t be easy” to decide. J.A. at 379 (R. 14-2 at 13). Coppinger further acknowledged that she would prefer to “not try that scenario.” Id. Juror Moore also revealed an aversion to interracial relationships, stating that interracial couples should not have children because those children would be “a mixed breed” and would not know “what breed they really are!” J.A. at 397 (R. 14-2 at 18). When asked why she held this view, Moore explained, “I don’t know why, but it’s somethin’ I guess I was brought up with.” J.A. at 398 (R. 14-2 at 19).

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

III. CONCLUSION

Because a decision to allow biased jurors to be impaneled “cannot be a discretionary or strategic decision,” and because “there is no sound trial strategy that could support what is essentially a waiver of a defendant’s basic Sixth Amendment right to trial by an impartial jury,” Miller, 385 F.3d at 675-76, I believe it is clear that Holder’s trial counsel’s performance “fell below an objective standard of reasonableness,” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Further, because jurors with actual bias were impaneled, the prejudice prong of Strickland is also satisfied. See Hughes, 258 F.3d at 463 (“The seating of a biased juror who should have been dismissed for cause requires reversal of the conviction.”); Strickland, 466 U.S. at 694, 104 S.Ct. 2052. As explained above, I believe that de novo review is appropriate in this case. However, even applying AEDPA’s deferential standard, I believe that the Michigan Court of Appeals unreasonably applied clearly established Supreme Court precedent when it held that Holder had not shown that his counsel’s performance was objectively unreasonable. For these reasons, I would grant Holder’s petition.

1 . In responding to my argument for de novo review, the majority cites Harris v. Stovall, 212 F.3d 940 (6th Cir.2000), and three nonbinding cases from other circuits for the proposition that a federal habeas court should review the state court's conclusion and not its reasoning. Maj. Op. at 341-42. Harris embraced an approach that came to be known as "modified AEDPA deference,” under which this court will conduct an independent review of the applicable facts and law but grant the writ only if the state court's ultimate decision was contrary to or an unreasonable application of federal law. See Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir.2005). Modified AEDPA deference applies only in cases where there is little or no reasoning to review. See Harris, 212 F.3d at 943 (evaluating a state court’s denial of relief "when there is no state court decision articulating its reasons”). Extending that approach to cases in which the state court has explained its reasoning would be in tension with Supreme Court precedent. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) ("Avoiding these pitfalls [of being ‘contrary to' clearly established Supreme Court precedents] does not require citation of our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.”) (second emphasis added); see also Cornwell v. Bradshaw, 559 F.3d 398, 405 (6th Cir.2009) ("A state court decision on the merits is contrary to clearly established Supreme Court precedent only if the reasoning or the result of the decision contradicts that precedent.”). Indeed, as noted above, this court has acknowledged the Supreme Court’s instruction that a state-court decision is "contrary to” clearly established federal law "if the state court applies a mle that contradicts the governing law set forth in [Supreme Court] cases.” Fulcher, 444 F.3d at 799 (quoting Williams, 529 U.S. at 405, 120 S.Ct. 1495) (emphasis added). I believe that People v. Robinson contradicts Strickland. Accordingly, I would conclude that in applying Robinson, the state court rendered a decision contrary to clearly established Supreme Court law.