IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-20079

S. A. DORIS WASHINGTON,

Petitioner – Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent – Appellee

Appeal from the United States District Court 

for the Southern District of Texas

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:

Petitioner, S.A. Doris Washington, a Texas state prisoner, was convicted 

by a jury of aggravated robbery with a deadly weapon and sentenced to a 55-year

term of imprisonment. His conviction was affirmed on direct appeal. 

Washington applied for state habeas relief. Washington claimed, inter alia, that

he was denied the right to an impartial jury and a fair trial due to the bias of a

juror. Specifically, Washington asserted that his trial attorney, Kurt Wentz, had

rendered ineffective assistance by failing either to challenge for cause or strike

Juror Number 12. 

United States Court of Appeals

Fifth Circuit

F I L E D

May 2, 2013

Lyle W. Cayce

Clerk

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No. 12-20079

The trial court record includes the following exchange between trial

counsel and Juror Number 12 during voir dire: 

MR. WENTZ: The Judge has talked to you about the Fifth

Amendment, as well as [the State]. How many of you would require

a defendant to testify at his trial?

. . . 

You’ve known this forever, basically, ever since you were taking

civics in junior high school and high school. That doesn’t mean we

don’t have our own feeling about this. How many simply would

require a defendant to testify at his trial or they would hold it

against him if he didn’t?

THE JUROR: Number 12.

MR. WENTZ: In other words, you could not really accord the

defendant his Fifth Amendment right?

THE JUROR: Although it is his choice, to me, if it was me to—if I 

was on that side I would feel I need to say whether I did or didn’t,

explain why. So I would be leaning towards the prosecution if he

didn’t testify in his own behalf.

MR. WENTZ: So you would—

THE JUROR: It’s an integrity issue for me.

MR. WENTZ: But basically, I know where you’re coming from and

I understand what you’re saying, but I think what you’re saying— 

THE JUROR: I would hold it against him, yes.

Following these remarks, neither the trial court, the petitioner’s lawyer,

nor the prosecutor followed up on Juror Number 12’s statement with further

inquiry. Neither party challenged or struck Juror Number 12, and so he sat on

the jury that convicted Washington. 

The state habeas court ordered Mr. Wentz to file an affidavit. Finding

Wentz’s affidavit to be credible, the state habeas court adopted the following

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findings of fact and conclusions of law proposed by the respondent regarding

Juror Number 12: 

9. According to the credible affidavit of Kurt Wentz, juror number

12 did not say that he could not follow the law with respect to

affording the applicant his 5th Amendment right not to testify,

thereby giving counsel a reason to strike him for cause.

10. According to the credible affidavit of Kurt Wentz, and supported

by the record, juror number 12 said that whether or not a defendant

testified was an issue of integrity.

11. According to the credible affidavit of Kurt Wentz, counsel did

not use a peremptory strike on juror number 12 because counsel

believed it was good strategy to keep him—specifically, that because

this juror believed in the concept of integrity, he would judge

harshly the accomplice witness testimony against the applicant.

The state habeas court recommended that relief be denied. The Texas Court of

Criminal Appeals denied relief without a written order or hearing based on the

findings of the trial court. 

Washington then filed a 28 U.S.C. § 2254 habeas petition, raising, inter

alia, the above claims of denial of a fair trial due to juror bias and ineffective

assistance of trial counsel. Respondent Thaler filed a motion for summary

judgment, and the district court granted that motion in part, dismissing all of

Washington’s claims except those for trial court error and ineffective assistance

of counsel relating to the bias of Juror Number 12. After further briefing on

those issues,Thaler filed a supplemental motion for summary judgment on those

issues, which the district court granted. The district court granted Washington

a certificate of appealability limited to the question of whether the trial court

denied Washington a fair trial by not dismissing, sua sponte, Juror Number 12. 

We denied Washington’s request to expand the COA grant to include his claim

of ineffective assistance of counsel. 

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On habeas review, we review the district court’s findings of fact for clear

error and its legal conclusions de novo. Summers v. Dretke, 431 F.3d 861, 868

(5th Cir. 2005). Where the petitioner’s claim has been adjudicated on the merits

by the state court, the federal court’s review of the state court’s decision is

deferential. See 28 U.S.C. § 2254(d). 

Under § 2254(d)’s deferential standard, federal habeas relief cannot be

granted unless the state court’s adjudication 

either (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 . . . , 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.

Id. A state court’s decision is “contrary to . . . clearly established Federal law,

as determined by the Supreme Court if: (1) the state court applies a rule that

contradicts the governing law set forth in [the Supreme Court’s] cases, or (2) the

state court confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme] Court and nevertheless arrives at a result different

from [Supreme Court] precedent.” Summers, 431 F.3d at 869 (internal quotation

marks and citation omitted).

A state court unreasonably applies clearly established Supreme Court

precedent “if the state court correctly identifies the governing legal rule but

applies it unreasonably to the facts of a particular prisoner’s case.” Id. (internal

quotation marks and citation omitted). The unreasonableness inquiry is an

objective one and does not ask whether the state court’s adjudication was merely

“incorrect.” Id. (internal quotation marks and citation omitted). Instead, habeas

relief is warranted only where the state court’s application of Supreme Court

precedent is both incorrect and unreasonable. Id. Moreover, a state court’s

factual findings are presumed correct unless the applicant rebuts that

presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Finally,

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§ 2254(d) authorizes federal courts to review only a state court’s decision, not the

written explanation for that decision. Summers, 431 F.3d at 868.

The Texas Court of Criminal Appeals’ decision denying relief on

Washington’s juror bias claim was not an unreasonable application of clearly

established federal law as determined by the Supreme Court. The Supreme

Court has clearly established a defendant’s Fifth Amendment right to testify, 

e.g., Harris v. New York, 401 U.S. 222, 225 (1971), and Sixth Amendment right

to trial by a fair and impartial jury, e.g., Irvin v. Dowd, 366 U.S. 717, 722 (1961). 

Washington has not, however, cited any Supreme Court precedent establishing

state trial courts have a duty to sua sponte dismiss a purportedly biased juror. 

The Seventh Circuit, applying § 2254(d)(1), rejected a similar claim of

juror bias. Cage v. McCaughtry, 305 F.3d 625 (7th Cir. 2002). The court held,

in relevant part,

This amounts to asking whether the judge has an obligation to

dismiss a juror for cause even if no lawyer objects. . . . The Supreme

Court has never announced such a rule, and so it is not a ground

upon which a state prisoner can obtain relief in a federal habeas

corpus proceeding. . . . The absence of a case in the Supreme Court

(or any other court, as far as we know) declaring such a rule is not

surprising. There is nothing suspicious about a lawyer’s refusing to

strike a prospective juror for cause. The lawyer might feel that on

balance the juror was more likely to vote for than against his client.

In the hearing conducted in the district court on the petitioner’s

claim of ineffective assistance, his trial lawyer explained that he

had thought that Werth was trying to get off having to serve on the

jury, and that if he were left on against his will he would blame the

government, which had instituted the case, and therefore be

inclined to vote for an acquittal. Correct or not, this is the kind of

reasoning that a criminal defendant wants his lawyer to engage in.

A rule requiring the judge to exercise all challenges for cause would

not serve criminal defendants and is hardly a plausible

interpretation of the Sixth Amendment, let alone one endorsed by

any decision of the Supreme Court. 

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Id. at 626 (internal citations omitted). We likewise hold there is no Supreme

Court precedent establishing an obligation for a trial court judge to dismiss a

juror for bias where no party objects. 

Moreover, Washington’s claim for federal habeas relief is barred byTeague

v. Lane, 489 U.S. 288 (1989). 

In Teague, the Court held that federal courts may not create new

constitutional rules of criminal procedure on habeas review. A new

rule is one which was not dictated by precedent existing at the time

the petitioner’s conviction became final. A new rule is created if the

rule is, in light of [Supreme Court] precedent, susceptible to debate

among reasonable minds. If reasonable minds could differ on

whether current law requires relief, we may not grant relief without

creating a new rule barred by Teague. 

Vega v. Johnson, 149 F.3d 354, 357 (5th Cir. 1998) (internal citations and

quotation marks omitted). Here, granting Washington relief would require us

to create a new rule of criminal procedure out of whole cloth. Therefore,

Washington’s claim is barred by Teague. 

For these reasons, we AFFIRM. 

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