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The Honorable J. Thomas Ray, United States Magistrate Judge for the Eastern

District of Arkansas, sitting by consent of the parties. See 28 U.S.C.§ 636(c); see also

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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Nos. 07-1109/2282

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Corey Sanders, *

*

Appellant, *

*

v. * Appeals from the United States

* District Court for the Eastern

Larry Norris, Director, Arkansas * District of Arkansas.

Department of Correction, *

*

Appellee. *

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Submitted: March 10, 2008

Filed: June 16, 2008

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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.

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ARNOLD, Circuit Judge.

This is a habeas corpus case. An Arkansas jury convicted the petitioner, Corey

Sanders, of two counts of capital murder and the trial judge sentenced him to two

terms of life imprisonment without parole. The Supreme Court of Arkansas upheld

his conviction on appeal, Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000), and

rejected the claims that he made in post-conviction proceedings, Sanders v. State,

2003 WL 22351933 (Ark. 2008). When the district court1

 denied the petition that
Fed. R. Civ. P. 73.

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Mr. Sanders filed for relief under 28 U.S.C. § 2254, he appealed to us and then filed

a motion under Federal Rule of Civil Procedure 60(b) in the district court. When the

district court denied this motion, Mr. Sanders filed a second appeal. We have

consolidated the two appeals.

Mr. Sanders's appeals raise four issues. He maintains that the district court

should have appointed counsel for him; that his trial counsel was ineffective for

failing to obtain disqualifying information about juror Randy Reed and having him

removed from the jury; that the district court should have construed his pro se petition

to include a claim that Mr. Reed's dishonesty during voir dire deprived him of his

constitutional right to a fair trial; and that the district court erroneously construed parts

of his Rule 60(b) motion as a successive habeas petition. The district court granted

Mr. Sanders a certificate of appealability on his ineffective-assistance claim and we

gave him a certificate on the issue of whether the district court misinterpreted his

Rule 60(b) motion. Mr. Sanders did not request a certificate of appealability as to his

contention that his § 2254 petition included a claim that Mr. Reed's dishonesty

deprived him of a fair trial.

I.

Mr. Sanders does not need a certificate of appealability to challenge the district

court's denial of his motion for appointment of counsel. Morris v. Dormire, 217 F.3d

556, 558 (8th Cir.2000), cert. denied, 531 U.S. 984 (2000). When Mr. Sanders filed

his § 2254 petition, he also asked the court to grant him in forma pauperis status and

to appoint counsel for him. Although the district court allowed Mr. Sanders to

proceed in forma pauperis, the court denied his request for counsel after taking into

account the relevant considerations, see McCall v. Benson, 114 F.3d 754, 756 (8th Cir.

1997). Having carefully reviewed the record, we conclude that the court's denial of

counsel was not an abuse of discretion. See id.
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II.

Mr. Sanders argues that the district court erred in not construing his petition to

include a claim that Mr. Reed's conduct during voir dire deprived him of the right to

the fair trial that the sixth amendment guarantees him. This supposed claim centers

on Mr. Reed's silence when the judge who tried Mr. Sanders's case asked the members

of the venire whether they knew anything about the facts of the case, whether they

were related to any of the parties by blood or marriage, and whether they could be fair

and unbiased. It turns out, as we shall see in our discussion of Mr. Sanders's

ineffective-assistance claim, that Mr. Reed failed to be completely candid in

answering questions during voir dire. But Mr. Sanders did not raise the issue of

Mr. Reed's failure to respond to these questions as a ground for relief in state court,

a prerequisite for obtaining federal habeas relief where, as here, the petitioner shows

neither cause and prejudice for the default nor that a failure to consider the claim

would result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501

U.S. 722, 750 (1991).

As we have said, Mr. Sanders did not ask for a certificate of appealability on

this claim. Although we may issue a certificate sua sponte in appropriate

circumstances, see United States v. Morgan, 244 F.3d 674, 674-75 (8th Cir.2001) (en

banc), cert. denied, 534 U.S. 825 (2001), we cannot do so here since the claim is

defaulted, see Langley v. Norris, 465 F.3d 861, 862-63 (8th Cir. 2006), and we

therefore dismiss the claim for lack of jurisdiction.

III.

After the district court entered its judgment denying Mr. Sanders's petition, he

filed a motion for relief from judgment under Rule 60(b), attaching new evidence in

support of his claims. The district court denied the motion, holding that it was the

equivalent of a successive petition for habeas corpus and thus required our

authorization before it could be filed. The district court was entirely correct in this.

A motion of this sort filed in a proceeding under 28 U.S.C. § 2254 must be treated as
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successive if, as here, it "seek[s] leave to present 'newly discovered evidence' ... in

support of a claim previously denied." Gonzalez v. Crosby, 545 U.S. 524, 531 (2005)

(quoting Fed. R. Civ. P. 60(b)(2)). And we decline to authorize Mr. Sanders to file

such a successive petition. See 28 U.S.C. § 2244(b)(3). Even if, as the district court

opined, Mr. Sanders's new evidence, had it been presented before judgment, might

well have led the district court to grant his initial habeas petition, we cannot authorize

the filing of a new petition because the new evidence does not establish that but for

the claimed error "no reasonable factfinder would have found [Mr. Sanders] guilty of

the underlying offense." 28 U.S.C. § 2244(b)(2). Mr. Sanders's new evidence has

nothing to do with his guilt or innocence, so he cannot file a successive habeas

petition.

IV.

Mr. Sanders's final claim is that his counsel was ineffective in failing to ask

Mr. Reed questions on voir dire that would have revealed that he was not qualified to

sit on the jury. All now concede that Mr. Reed was the coroner of Columbia County,

Arkansas, that he was present in that capacity when the police recovered the bodies

of the victims of the crimes for which Mr. Sanders was tried, that he arranged for

autopsies of the bodies, and that, as a mortician, he conducted the funeral of the victim

to whom he was distantly related by marriage. 

Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA),

a federal court may not grant a writ of habeas corpus on any claim decided by a state

court unless the state court's decision "was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court"

or the decision "was based on an unreasonable determination of the facts in light of

the evidence presented in the State court." 28 U.S.C. § 2254(d). Here the Arkansas

Supreme Court applied the United States Supreme Court's well-settled standard for

ineffective-assistance claims, which requires a defendant to show that counsel's
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performance was professionally deficient and that the deficient performance

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984).

The district court held that the post-trial hearing record did not establish that

counsel had reason to know of Mr. Reed's potentially disqualifying circumstances or

that Mr. Reed had revealed his occupations on the questionnaire that the trial court

required prospective jurors to fill out before trial, and therefore the Supreme Court of

Arkansas had not acted unreasonably in holding that Mr. Sanders's counsel had not

been professionally deficient. Mr. Reed testified at the post-conviction proceeding

that he couldn't remember whether he had filled out a questionnaire or not, but that,

if he had, he would have included his occupations. The new evidence that

Mr. Sanders presented in support of his Rule 60(b) motion in fact included a jury

questionnaire that Mr. Reed had filled out, and in it he did indeed reveal his

occupation as coroner and mortician. But that evidence was not before the state

courts, was not before the district court in the habeas proceeding, and is not before us.

We are somewhat troubled by the Arkansas Supreme Court's conclusion that

the performance of Mr. Sanders's counsel was not professionally deficient. A careful

parsing of the supreme court's ruling reveals that it may well have been "based on an

unreasonable determination of the facts," 28 U.S.C. § 2254(d)(2), namely that

Mr. Sanders's counsel did not have reason to know of Mr. Reed's potentially

disqualifying circumstances. The Arkansas Supreme Court found that counsel "did

not see" that Mr. Reed was the coroner, thus implicitly finding that Mr. Reed had

indeed filled out the jury questionnaire and did disclose that he was the coroner, and

Mr. Sanders's counsel himself testified, "I missed it," referring to Mr. Reed's

occupation. This is not, of course, contrary to the state supreme court's other finding

that counsel was not on notice. But in the reasonable exercise of professional

diligence counsel would have been on notice because he should have seen the

questionnaire, and, given the supreme court's implicit finding that the questionnaire

contained potentially disqualifying information, it might well have been legally
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unreasonable for the supreme court to conclude that counsel's performance was

professionally reasonable.

But to prevail on his claim, it is not enough for Mr. Sanders to show that his

counsel's performance was deficient: He must also show that counsel's deficient

performance prejudiced him. Normally, this requires a showing that there is a

reasonable probability that the outcome of the trial would have been different but for

the deficient performance, a standard that Mr. Sanders cannot meet. See Strickland,

466 U.S. at 694. We have held, however, that some professional failures of counsel,

including the failure to strike a biased juror, Johnson v. Armontrout, 961 F.2d 748,

754-56 (8th Cir. 1992), result in structural errors that are presumed prejudicial, see

also McGurk v. Stenberg, 163 F.3d 470, 473-75 (8th Cir. 1998); cf. United States v.

Cronic, 466 U.S. 648 (1984), and Mr. Sanders contends that his attorney's failure to

question Mr. Reed properly resulted in a structural error: Mr. Sanders maintains that

Mr. Reed was a biased juror and thus counsel's failure to remove him from the jury

resulted in Mr. Sanders being denied his sixth amendment right to an impartial jury.

He further contends that because an impartial jury is fundamental to a fair trial and the

consequences of its being denied "are necessarily unquantifiable and indeterminate,"

Sullivan v. Louisiana, 508 U.S. 275, 281 (1993), the error caused by his counsel is

structural and presumed prejudicial. See Johnson, 961 F.2d at 754-56; cf. Rose v.

Clark, 478 U.S. 570, 577-78 (1986).

Mr. Sanders's argument is premised on Mr. Reed's partiality, but the state trial

court, after holding a hearing in his post-conviction proceeding, found nothing in the

record to "suggest that [Mr. Reed] was an unfair, partial, or biased juror." The state

supreme court, after citing authority for the principle that jurors are "presumed

unbiased," concluded that Mr. Sanders had failed to meet his burden of showing

"actual bias." Sanders, 2003 WL 22351933, at * 3 (citing Lee v. State, 343 Ark. 702,

720, 38 S.W.3d 334, 345 (2001), mandate recalled on other grounds, 367 Ark. 84,

238 S.W.3d 52 (2006)). We believe that the context of the court's conclusion shows
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that it was a finding that Mr. Reed was not biased. See Baca v. Sullivan, 821 F.2d

1480, 1483 (10th Cir. 1987); see also Patton v. Yount, 467 U.S. 1025, 1036 (1984).

Since Mr. Sanders has no clear and convincing evidence to the contrary, we must

accept the state court's factual finding that Mr. Reed was not actually biased. See

28 U.S.C. § 2254(e)(1); Nicklasson v. Roper, 491 F.3d 830, 834 (8th Cir. 2007), cert.

denied, 76 U.S.L.W. 3568 (U.S. April 21, 2008).

Mr. Sanders maintains, however, that the connections between Mr. Reed and

his criminal case create a legal presumption of bias. Implied or presumed bias means

"a bias attributable in law to the prospective juror regardless of actual partiality."

United States v. Wood, 299 U.S. 123, 134 (1936). Our case law, however, is

inconsistent as to whether juror bias may ever be presumed. Compare Goeders v.

Hundley, 59 F.3d 73, 75-76 (8th Cir. 1995), and United States v. Kelton, 518 F.2d

531, 532 (8th Cir. 1975) (per curiam), with Fuller v. Bowersox, 202 F.3d 1053, 1056-

58 (8th Cir. 2000) and Johnson, 961 F.2d at 756. In Kelton, 518 F.2d at 532, we said

that our court had "rejected the per se theory of implied bias in favor of a requirement

that actual prejudice be demonstrated" (internal quotation marks omitted). Like

Mr. Sanders, the habeas petitioner in Goeders, 59 F.3d at 75, claimed that his counsel

was ineffective for failing to strike a biased juror. We held that the petitioner had to

show actual – not implied – bias, relying on the Supreme Court's statement in Smith

v. Phillips, 455 U.S. 209, 215 (1981), that "the remedy for allegations of juror

partiality is a hearing in which the defendant has the opportunity to prove actual bias."

See Goeders, 59 F.3d at 75-76; see also Mack v. Caspari, 92 F.3d 637, 642 (8th Cir.

1996), cert. denied, 520 U.S. 1109 (1997). Of course, if bias may never be presumed,

Mr. Sanders's claim fails.

But we have said in other cases that a juror may sometimes be presumed biased,

see Fuller, 202 F.3d at 1056-58; Johnson, 961 F.2d at 756, and, as discussed later, a

significant number of circuits have adopted the doctrine of implied bias. In Johnson,

the habeas petitioner contended that his trial counsel was ineffective for failing to have
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several members of the jury stricken for cause; though we found that the petitioner

was entitled to relief because two of the jurors were biased in fact, we added that

"even without a showing of actual bias, prejudice may be implied in certain egregious

situations." Id. As support for the doctrine of implied bias in Johnson, id., we cited

a concurring opinion in Phillips, 455 U.S. at 222 (O'Connor, J., concurring). (As we

have said, we relied on Phillips to reject the doctrine of implied bias in Goeders, 59

F.3d at 76.) We again accepted the doctrine of implied bias in Fuller, 202 F.3d at

1056-58, though we concluded that the facts did not support the presumption or

prejudice and thus denied the habeas petitioner's claim that a biased juror deprived

him of a fair trial. In Fuller, id., we cited but did not discuss the Supreme Court's

decisions in Phillips and Wood, which states that 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," Wood, 299 U.S. at 133.

We need not resolve the apparent inconsistency in our cases, however, to decide

Mr. Sanders's claim. Nor do we have to decide whether AEDPA applies by

determining whether the state court adjudicated the question of presumed bias "on the

merits." See 28 U.S.C.A. § 2254(d). For even if we ignore the strictures of AEDPA

and assume, without deciding, that juror bias may sometimes be presumed as a matter

of law, we conclude that the circumstances here cannot support such a presumption.

In those circuits that recognize the principle of implied bias, resort to it has been

limited "to those extreme situations where the relationship between a prospective juror

and some aspect of the litigation is such that it is highly unlikely that the average

person could remain impartial in his deliberations under the circumstances." Person

v. Miller, 854 F.2d 656, 664 (4th Cir.1988); see also Fields v. Brown, 503 F.3d 755,

768-69 (9th Cir. 2007) (en banc). When determining whether bias should be

presumed, courts often refer to Justice O'Connor's concurring opinion in Phillips, 455

U.S. at 221-23 (O'Connor, J., concurring). See, e.g., United States v. Tucker, 243 F.3d

499 (8th Cir. 2001); Conaway v. Polk, 453 F.3d 567, 585-87 (4th Cir. 2006); United
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States v. Frost, 125 F.3d 346, 279-80 (6th Cir. 1997); Hunley v. Godinez, 975 F.2d

316, 318 (7th Cir. 1992); Fields, 503 F.3d at 768 n.6; Burton v. Johnson, 948 F.2d

1150, 1158 (10th Cir.1991). Though we interpreted Phillips as rejecting the doctrine

of implied bias in Goeders, 59 F.3d at 75-76, Justice O'Connor viewed it differently

in Phillips: After concurring in the Court's opinion, Justice O'Connor wrote

"separately to express [her] view that the opinion does not foreclose the use of

'implied bias' in appropriate circumstances." Phillips, 455 U.S. at 221 (O'Connor, J.,

concurring). She believed that some "exceptional" or "extreme situations" cast such

doubt on a juror's impartiality that even if a state court found " 'no bias,' the Sixth

Amendment right to an impartial jury should not allow a verdict to stand," and she

provided examples: "a 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." Id. at 222 & 222 n.*; cf. McDonough Power Equip., Inc.

v. Greenwood, 464 U.S. at 556-57 (Blackmun, Stevens, and O'Connor, JJ.,

concurring); id. at 558 (Brennan and Marshall, JJ., concurring in the judgment).

We referred to the examples in Justice O'Connor's concurrence when we

rejected a claim of implied juror bias in a direct appeal. Tucker, 243 F.3d at 509. In

Tucker, during a break in the trial of an Arkansas governor, one of the jurors married

a former state prisoner whose request for clemency had been denied by the defendant

both directly and by blocking an acting governor's attempt to commute his sentence;

the juror had been living with her new husband for some time before the trial. In

addition, the juror's new husband was the nephew of a political activist who was

demonstrating against the defendant outside the courthouse during trial and had

prepared leaflets attacking him, and the juror had twice dated the activist's son. After

referring to the examples of "extreme situations" listed in Justice O'Connor's

concurrence in Phillips, 455 U.S. at 222, we concluded in Tucker that the juror was

not "related to the facts or parties of this case in a manner that approaches such an

extreme situation." Tucker, 243 F.3d at 509. 
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We do not think that Mr. Reed's circumstances fit within any of the examples

that Justice O'Connor listed. He was not an employee of the prosecutor: He was the

county coroner, and although he was present when the victims' bodies were removed

from a well, there is no evidence that he participated in the autopsy or any other aspect

of the criminal investigation. Nor was Mr. Reed a "close relative" of anyone related

to the criminal case. His wife was a distant relative of one of the victims, and he

testified that he did not know the victim; there was no evidence to the contrary.

Finally, Mr. Reed was neither a witness to the "criminal transaction" nor "involved"

in it.

Some courts have implied bias in circumstances that have the "potential for

substantial emotional involvement," Frost, 125 F.3d at 379-80. For example, the

Ninth Circuit held in a bank robbery case that employees of a different branch of the

same bank that the defendant was accused of robbing were presumably prejudiced

both because they worked for the same bank and because bank employees generally

have a reasonable fear of violent bank robbers, United States v. Allsup, 566 F.2d 68,

71-72 (9th Cir. 1977), and in a murder trial where the victim's defense was

battered-wife syndrome, the Tenth Circuit imputed bias to a juror who, at the time of

trial, was married to a man who had physically abused her. Burton, 948 F.2d at 1159.

Here, however, there is no evidence that Mr. Reed or those close to him had

been victims of violent crime or had any other life experience that was similar to the

facts of Mr. Sanders's case. And though Mr. Reed saw the victims' bodies and

performed the funeral for one of them, he did so not as a friend or family member but

as part of his regular duties as a coroner and a mortician. In sum, though we may wish

in hindsight that Mr. Reed had not been on Mr. Sanders's jury, we cannot say that his

presence there was the type of "extraordinary situation" in which the "law

conclusively presumes" bias. Phillips, 455 U.S. at 222 n.* (O'Connor, J., concurring).
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Because Mr. Sanders has not shown that Mr. Reed was biased either in fact or

impliedly, he cannot prevail on his ineffective-assistance claim. Even if his counsel's

deficient performance resulted in Mr. Reed's presence on the jury, Mr. Sanders has

failed to establish that Mr. Reed's presence prejudiced him.

Affirmed.

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