ok i think we're ready to begin so welcome to this week of oral argument we were supposed to be in atlanta georgia but obviously the virus has changed things for everybody and this is going to be the very  t zooms session of oral arguments at the th circuit is add so we hope it all goes very well judge let go and judge brasher and i are very happy to welcome you all to this session with that will begin with assistance of counsel claims in strickland requires a showing of actual prejudice to warrant release here christopher teasley did not show that a juror who was actually biased against him was seated on his jury thus he did not meet that showing of actual prejudice under stric reasons reason number one that it aired when applied the wrong standard of review in this case that it reviewed the case do novo instead of under the applicable deferential standard under the ada reason number two error when it presumed prejudice when actual prejudice under strickland was required in reason number three that the district court erred when it said that the statute prohibiting no in pietschmann of a jury's on co counsels news two that he owned several firearms which was important to the defendant because of that theory of the case three he didn't respond to a number of general questions about partiality i guess or he was questioned individually by the prosecutor about potential bias against state and he responded by raising his hand to the question of whether he might have trouble being a juror in a murder case is there anything convictions in a neighboring county he was asked if that would believe affect his ability in this case i think he said no not really he didn't really think his brother was railroaded and i believe he said he picked them up or he picks them up from the reference that it was a case that was going to involve the shooting before any questions were asked the panel the trial did in fact read the charges to the panels of the journey it was the jury panel knew it was a murder case they may not have known it was a case involving a shooting death and the shooting of another individual until that last question was asked where juror donaldson made that nonverbal response and then raised his hand there was no link between that nonverbal response in anything else he said the federal magistrate's report which the district court adopted did too when i would argue speculate as to why he raised his hand but that's completely outside the state court record that was before the district court speculating that he raised his knee and to show bias against teasley because in the alternative if he had said the state and treated his brother for nearly an unrelated prosecution there unreasonable fact finding under twenty to fifty four d two that that back binding was when the district was when the state habeas court said that this juror's responses during why dear were equivocal in regards to showing actual bias against responded to and pointed to the lack of any evidence in that water transcript to show that there was any actual bias in this your head against christopher teasley that is by definition a that binding supported by the record so the district court should have afforded the appropriate deference to that instead the district court latched on to that word with the goal in the state maybe as court's order and said that was an and i'm going to review the claim to know obviously your honor those are two very different standards of review and in federal habeas when when the district court is examining a state court conviction it is whether the state court made an unreasonable application of clearly established that real law there's no dispute here that strickland the washington i think is is is the clearly established that law so the the petiti analysis i will say i don't think it matters i think teasley loses under either standard of review because there is just no evidence of actual bias in the state court record  ask you a question about the rd point you said you were going to make to make sure that we at least discuss it a little bit yes your honor goes to whether or not mr teasley could have put on any evidence from  juror donald although the order is not definitive the state hey be as court seemed to think that mr teasley had the better of the argument on that point are there are cases from georgia that explain whether a juror in mr donaldson situation can be called to testify in a post conviction hearing your honor there were none directly on point that addressed this exact scenario and i've been doing this for a while and i have not seen this come up where there was an affirmative response to a fair and impartial question during what year and then there was just simply nobody followed up with  juror about or to answer your question i would say there's nothing empty no impeachments that you rather we're talking about the one that would have been applicable at the time of these leaves motion for a new trial or if we're talking about that the more recent one ha been adopted in georgia which mirrors federal rule of evidence six hundred and six regardless of which one we're talking about there the no impeachment statue is is to preserve the sanctity of the jury's deliberations and in this case not no we weren't your honor because it didn't come up there was an attempt to present any evidence so so we were asked to comment officially in regards to what whether he could present that evidence or not it would be highly speculative and obviously the state navy's court would need to know and i would have needed to know what type of evidence they were presenting certainly they could have presented a very broad juror affidavit that may have went against the no impeachment statute but there may have been provisions that they could have included in there that certainly would not have in this narrow context so that hiding behind that no impeachment statute is simply not a reason for not attempting to present that evidence and state abs and going to swagger whatever you're counsel asked a clear question regarding barry she asked is there anyone here who feels that you can't be very impartial in states is a murder trial where it's alleged listening type of case that you just can't be fair on in response to this reason for not following up on this the only reason you would follow up on something like that would be if you knew the juror and i didn't know the juror i just missed it at your honor had brought up co defendants counsel before and said you know she had mark did the jersey swear that he could set aside any opinion he might hold and decide the case on the evidence and should the jurors assurance of impartiality here we don't even get to the nd part of that asked whether jurors assurance of impartiality should you know someone said i'm you know here's the reason i'm biased i'm biased against this party i have something that makes me biased here we have sort of a different situation it seems to me where the question is just is there we don't really know what i mean unlike those other cases we don't really seem to know anything specific about what he was trying to indicate that why is that not a good way to distinguish these so your honor we don't know why mr johnson couldn't as to whether they could put aside their preconceived notions and decide occasionally evidence that's the same situation we have here and here and if miller is one of the other cases and yes well we knew the reasons that the juror in miller thought she might not be able to be fair that she who the victim in a case she also stated twice i think i could care and she did it twice i believe i could be fair even at six circuit held bat if you followed that up with that statement but i do have some feelings of prejudice in this case it's wagner were you required to try to put on any evidence concerning the conviction here no your honor and there's a few reasons for that  the st one was it wasn't necessary the trial transcript is clear evidence that juror donaldson couldn't be fair impartial the nd reason is that it's not allowed i believe it was asked whether there are any you know georgia cases and under georgia law where a juror is not excused that you're asking but you would be asking as we would be for the st time i've addressed that when that was not raised in the state eight years correct and it was at the opportunity to respond the the state court tonight goes to writes the court of appeals now seem to be different because drew is suggesting look i might be biased because i'm not going to pull the court's instruction i'm going to want the defendant to testify no right result would be the jury should be allowed to test i mean you're saying that the constitution or you're not i don't think you're really saying is this record this reports he said that the constitution was  but it does not seem like evidence here in rule would yield and so this would be you know the rare case under the phillips where although there was a cheering at the here and there was not enough opportunity to prove actualize but again we right thank you very much maggie we appreciate ok mr malcolm you're back on but i think you have your view but not here on or did you hear me now please let me ask you a question i'll give you a little bit of extra time when you're on your own after you answer this the district court explained that in an appellate in a case involving the alleged ineffectiveness of appellate counsel the things you have to look at in terms of prejudice is whether or not i had coun made the argument that she was supposed to make the state appellate court would have granted really the district court thought the answer to that question was yes but you don't address that in your brief have you waive that argument no i don't believe we have your honor i think we we did address that made maybe not directly on point but the district court's order i think page nine of that order when it says even if this court were to agree with the state havey is corpus that we do not know whether the juror donaldson was or was not biased caution dictates that petitioner be given a new trial well that  simply and in contravention of everything that strickland stands for so that was essentially the point i was trying to make i think in a nd portion of our brief in regards to our issue with the district court's handling of  prejudice in general but if you're if you're simple if you're dealing with an ineffective assistance of appellate counsel plea and the argument is that appellate counsel failed to make an argument that she should have made is the district court right that prejudice part turns on whether or not the state appellate court would have granted relief had the argument been made well i think the prejudice prong is whether there was a reasonable probability that there would have been a different outcome actual biased against the petitioner in the case so the law in georgia at the time of the state is proceedings was essentially if if an actually biased juror who was biased against this defendant was seated on the jury then yes potentially prejudice could be shown or our main argument is that there was no showing of actual bias against petitioner in this state court record that's why the status court denied relief been found there was no prejudice and that is essentially where the district court got it wrong but again mr malcolm it seems to me that you didn't address that ruling of the district court in your brief the district court said on page nine even if this court were to agree with a table as court that we do not know whether mr donaldson was or was not biased caution dictates that petitioner be giving him to be given a new trial and it is reasonably probable that the georgia supreme court would have agreed you don't take issue with that ruling in your brief right and i think i think we do your honor because we challenge the district court's presumption of prejudice which is that's how i read that provision you just read out of the district court's order that it's saying basically that there doesn't have to be an out current outcome determinative prejudice analysis there doesn't have to be any sort of analysis whether a juror was actually biased against teasley that was  because that essentially is a presumption of prejudice that the supreme court of the united states has not acknowledged in this type of case i do believe we addressed that in our brief your honor at least that was our intent well you're argument is that there's been no showing of prejudice right district court was wrong basically overrule the state courts finding out like a prejudice but suggesting to you that the district court had an alternative view of prejudice which is that if the claim had been raised on direct appeal by appellate counsel the georgia courts would have granted a new trial and i just don't see that addressed any were in your brief am i wrong about that well like i said i believe you are your honor i believe and we are talking about presumption of prejudice i may not have very artfully crafted that in our brief but that is essentially what we are challenging so that the district court prejudiced determination wrong because of the centrally what we're talking about the dish the district court did not gauging consider the factors it needed to in making the actual prejudice determination it completely circumvented what strickland says about actual prejudice and basically presumed prejudice and said this petitioner did not have to present anything that was outcome determinative and so yes yes or i believe we did challenge that and we did address that in our brief ok i told you i wanted to give you your regular rebuttal time so i'll go ahead and do that now so you'll get a cut thank your honor i don't have very much more to say just just a couple points but back to my original point  hope i made this clearly the main argument appellant is making is that there was no evidence of actual bias against christopher teasley in the state court record because there was not there is no showing of actual prejudice simply raising his this juror raising his hand in response to that last question which had been asked in a similar fashion numerous times before that is not enough to show actual prejudice in this case not enough to show actual bias