Revised 5/24/2021

United States Court of Appeals

for the Fifth Circuit

No. 18-10431

Jerry Lee Canfield, 

Petitioner—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice, 

Correctional Institutions Division, 

Respondent—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:16-CV-1000

Before Owen, Chief Judge, and Higginbotham and Willett, Circuit 

Judges.

Don R. Willett, Circuit Judge:

Jerry Lee Canfield was convicted of continuous sexual abuse of a 

child—his daughter—and sentenced to 50 years’ imprisonment. In seeking 

habeas relief, Canfield argues that his trial counsel was constitutionally 

ineffective because he failed to investigate and challenge a juror who 

demonstrated partiality during voir dire. The district court affirmed the 

Texas Court of Criminal Appeals’ denial of Canfield’s habeas claims, and we 

affirm the district court.

United States Court of Appeals

Fifth Circuit

FILED

May 21, 2021

Lyle W. Cayce

Clerk

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I

A

In July 2011, Canfield sent his then-seven-year-old daughter, M.C., 

and five-year-old son, C.C., to stay with his aunt and uncle—Ronda and 

Michael Canfield—in Bedford, Texas. About six months later, Canfield 

called to say he would be returning to pick up his children. At that time, 

Ronda and her adult daughter decided they needed to address M.C.’s poor 

hygiene before she returned to her father and was no longer in the care of a 

woman. They instructed M.C. on self-care and advised her to tell an adult if 

anyone touches her body in a way that makes her uncomfortable. M.C. then

told her aunt and cousin that her father had touched her “private parts” and 

made her touch his. M.C. then told Michael the same thing. Michael and 

Ronda called child protective services. 

The police arrested Canfield, charging him with continuous sexual 

abuse of a child under the age of fourteen. The State alleged that Canfield

engaged in at least two sex acts with M.C. over a period of at least 30 days 

between May 1, 2010 and August 31, 2010. Canfield took his case to trial.

During voir dire, the prosecutor asked all 60 potential jurors—who 

knew the case involved sexual abuse of a child—whether they already 

believed Canfield was guilty. After juror M.T. raised her hand, she and the 

prosecutor had the following exchange:

PROSECUTOR: . . . Tell me why.

[M.T.]: I don’t know. I have an autistic grandson who cannot 

talk, and we’ll never know, but we think something might have 

happened at the last autism program that he was in. My 

grandson cannot talk. We will never know. I’m sorry. This is 

just creeping me out really, really bad, being here. And just—

I’m freaking out. 

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PROSECUTOR: Okay. Let me ask you this: If we don’t prove 

him guilty, if we don’t prove it beyond a reasonable doubt 

guilty to you, are you going to find him guilty anyway?

[M.T.]: I probably will just because of where I am right now. I 

mean, I just—this is not a good—.

When it was his turn, defense counsel asked all 60 potential jurors 

questions regarding their ability to hold the prosecution to its burden of 

proof:

[I]f you have any reasonable doubt as to someone’s guilt, you 

must find them not guilty. . . . You’re affecting someone’s 

freedom. Someone could go to prison for life. . . . And before 

we do that, before we want to say to someone, We’re going to 

send you away for X amount of years, we want to be really sure, 

really sure.

Does anyone have a problem? Does anyone think that’s too 

high, too onerous a burden to place on someone?

There was no response, including from M.T.

Can everybody agree to hold the government to that burden, 

that before we find someone guilty, if you say to yourself, I had 

a reasonable doubt, I will find them not guilty? Can everybody 

agree to that? Does anyone have any reservations about that?

Again, no response.

Counsel then discussed the importance of a fair trial and asked if 

anyone felt they would be unable to find the defendant not guilty if he 

declined to testify or put on any witnesses of his own. One potential juror 

raised his hand; M.T. did not raise hers.

Next, defense counsel asked whether anyone believed that if a person 

has been accused of committing a crime more than once, “that makes him 

more likely to be guilty.” Numerous potential jurors raised their hands; M.T. 

did not. Counsel pressed those who raised their hands for a definitive answer 

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as to whether or not they could “give him a fair trial.” After some venire 

members answered that they could not, defense counsel noted his 

appreciation for their honesty and stated, “that’s why we have all of you here 

and only 12 seats up there. So if you have something you want to say, let’s 

talk about it. Anybody else?” M.T. did not raise her hand.

Finally, with respect to the guilt/innocence phase of trial, defense 

counsel asked whether “there [is] anything about this particular offense, for 

whatever reason, any act that for this particular type of offense that you’d 

say, I just don’t know if I could be the right kind of person for this jury?” One 

venire member noted that “[a]s a grandmother of two young children . . . it 

makes [her] look at someone perhaps with a more negative eye that, if they’ve 

been accused, what could have occurred that cause[d] someone to accuse 

them?” In response, defense counsel asked the venire member whether she 

believed she could “give Jerry a fair trial,” noting “if you can’t, it’s okay.” 

The woman confirmed that, despite her feelings, she could give Canfield a 

fair trial. Defense counsel followed up with, “Anybody else before we move 

on? I just don’t know if this is the right kind of case for me.” No one else, 

including M.T., raised a hand.

With respect to sentencing, defense counsel asked whether anyone 

believed a 25-year sentence (the bottom end of the sentencing range) would 

be too low, such that they would not be able to consider that sentence as a 

punishment. While some potential jurors noted that 25 years is “a lot” and 

they’d need to have “100 percent proof” of guilt to impose such a sentence, 

no one raised a hand to indicate a belief that a 25-year sentence would be an 

insufficient punishment.

Neither defense counsel nor the trial court addressed M.T. 

personally, nor did defense counsel challenge M.T. for cause or use a 

peremptory strike to remove her from the pool. M.T. ultimately served on 

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the jury, which found Canfield guilty and imposed a sentence of 50 years’ 

imprisonment.

B

Canfield first raised his ineffective assistance of counsel claim in his 

state habeas petition, arguing that his trial counsel’s assistance “fell below an 

objective standard of reasonableness”1 when he failed to investigate or 

challenge M.T. despite her obvious bias against Canfield.

In response, Canfield’s trial counsel submitted an affidavit. First, 

counsel noted that “[o]f the ten challenges for cause, a decision had to be 

made on which of these prospective jurors we would exercise challenges.”2

He then acknowledged M.T.’s statements, but claimed that she “at no point 

committed herself to finding [Canfield] guilty regardless of the evidence.” In 

his view, “[t]o say that you would probably find someone guilty regardless of 

the evidence is not a committal response.” And because of M.T.’s equivocal 

statements, defense counsel claims, he posed “follow up questions . . .

regarding that very issue.” Defense counsel noted that, during the follow-up 

questioning, M.T. did not indicate that she could not give Canfield a fair trial.

The state court denied Canfield’s petition, making the following 

findings:

1 Strickland, 466 U.S. at 688.

2

It appears counsel may have been mistaken in believing he only had “ten 

challenges for cause.” See Tex. Code Crim. Proc. Ann. art. 35.15(b) & 35.16 (limiting 

peremptory strikes to ten but not mentioning a limit on for-cause strikes). However, Canfield 

did not challenge the propriety of counsel’s belief on appeal, nor did the State address it; 

therefore, any argument related to the correctness of counsel’s understanding is forfeited. 

Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all issues not 

raised and argued in its initial brief on appeal.” (emphasis omitted)). 

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10. Venire persons are rehabilitated by remaining silent when 

they do not affirmatively state that they cannot follow the law. 

See Leadon v. State, 332 S.W.3d 600, 616 (Tex. App.—Houston 

188 [14th Dist.] 2010, no pet.); Cubit v. State, No. 03-99-00342-

CR, 189 2000 WL 373821, *1 (Tex. App.—Austin Apr. 13, 

2000, no pet.) 190 (mem. op., not designated for publication). 

11. Juror [M.T.] was rehabilitated by her silence. 

12. Applicant has failed to prove that counsel’s representation 

was deficient because counsel failed to ask Juror [M.T.] more 

questions. 

13. Applicant has failed to prove that Juror [M.T.] was biased. 

14. Counsel’s decision to not challenge Juror [M.T.] for cause 

was the result of reasonable trial strategy. 

15. Counsel’s decision to not strike Juror [M.T.] was the result 

of reasonable trial strategy. . . .

44. Applicant has failed to show that there is a reasonable probability that the result of the proceeding would have been different had counsel challenged [M.T.] for cause.

45. Applicant has failed to show that there is a reasonable probability that the result of the proceeding would have been different had counsel struck [M.T.].

The TCCA adopted these findings and likewise denied relief.

II

Strickland v. Washington3imposes a high bar on those alleging 

ineffective assistance of counsel. But 28 U.S.C. § 2254(d), which applies 

when reviewing a state prisoner’s federal habeas appeal, raises the bar even 

higher. To prevail, Canfield must demonstrate that his counsel’s 

3 466 U.S. 668 (1984).

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performance was both deficient and prejudicial to his defense (Strickland),4

and he must show that the state habeas court’s decision otherwise was 

“contrary to, or involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the United States” or 

“was based on an unreasonable determination of the facts in light of the 

evidence” (§ 2254(d)).

5

We review state-court adjudications for errors “so obviously wrong” 

as to lie “beyond any possibility for fairminded disagreement,”6 and we 

presume findings of fact to be correct.

7 Keeping in mind the enhanced 

deference federal habeas courts must apply when evaluating Strickland

claims,8 we first address counsel’s performance and then turn to prejudice.

4

Id. at 687.

5 28 U.S.C. § 2254(d).

6 Shinn v. Kayer, 141 S. Ct. 517, 523 (2020) (quoting Harrington v. Richter, 562 U.S. 

86, 103 (2011)). Shinn is the first of two recent per curiam opinions in which the Supreme 

Court reversed federal appellate courts for failure to apply appropriate deference. In the 

second, Mays v. Hines, the Court framed the inquiry succinctly: “All that matter[s] [i]s 

whether the [state] court, notwithstanding its substantial ‘latitude to reasonably determine 

that a defendant has not shown prejudice’ still managed to blunder so badly that every 

fairminded jurist would disagree.” 141 S. Ct. 1145, 1149 (2021) (quoting Knowles v. 

Mirzayance, 556 U.S. 111, 123 (2009)) (original alterations omitted).

7 28 U.S.C. § 2254(e)(1). That presumption may only be overcome by “clear and 

convincing evidence” otherwise.

8

In Shinn, the Court emphasized “the special importance of the AEDPA

framework in cases involving Strickland claims.” 141 S. Ct. 523. While habeas relief is never 

available as to state-court decisions that are “‘merely wrong’ or ‘even clear error,’” the 

general nature of the Strickland standard gives state courts “even more latitude to 

reasonably determine that a defendant has not satisfied that standard.” Id. (first quoting 

Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017), and then quoting Knowles, 556 U.S. at

123).

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A

First, deficient performance. Counsel’s performance is deficient if his

behavior “fell below an objective level of reasonableness.”9 But there’s “a 

strong presumption that counsel’s representation was within the wide range 

of reasonable professional assistance.”10 Counsel is not expected to be a 

“flawless strategist or tactician” and he “may not be faulted for a reasonable 

miscalculation or lack of foresight or for failing to prepare for what appear to 

be remote possibilities.”11

Canfield points us primarily to Virgil v. Dretke, where we determined 

that counsel’s failure to challenge two jurors—who “expressly stat[ed] an 

inability to serve as fair and impartial jurors”—was constitutionally deficient 

and that the state court’s contrary conclusion was an objectively 

unreasonable application of Supreme Court precedent.12 There, similar to 

this case, the jurors used language such as “I would say no” and “Yeah, I 

believe so” in expressing, respectively, whether they would be able to serve 

as an impartial juror and whether their personal experiences would prevent 

them from being impartial.13 We held these potential jurors’ statements, 

“that they could not be fair and impartial[,] obligated Virgil’s counsel to use 

9 Strickland, 466 U.S. at 688.

10 Richter, 562 U.S. at 104 (internal quotation omitted).

11 Id. at 110.

12 446 F.3d 598 (5th Cir. 2008). The Supreme Court has explained that “an 

appellate panel may, in accordance with its usual law-of-the-circuit procedures, look to 

circuit precedent to ascertain whether it has already held that the particular point in issue 

is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 

(2013).

13 Id. at 604.

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a peremptory or for-cause challenge on these jurors.”14 And “not doing so 

was deficient performance under Strickland.”15

But even assuming that counsel’s performance here was deficient, 

Virgil does not demonstrate that the TCCA was unreasonable in finding 

otherwise. In Virgil, unlike in this case, counsel’s post-trial affidavit spoke 

“only of peremptory challenges and fail[ed] to indicate why for-cause 

challenges were not used against [the potential jurors],” and “fail[ed] to 

explain why the answers given by [the potential jurors] did not indicate 

prejudice or bias.”16 Here, counsel explained that he had to make strategic 

decisions about how to use his for-cause challenges. And even if he was 

incorrect about the number of for-cause challenges he was allotted, he also

explained that he believed M.T.’s silence at additional questioning served to 

rehabilitate her testimony. Counsel’s purposeful, strategic reasoning alone 

distinguishes Virgil from the case at bar.

The TCCA also found that counsel’s performance was not deficient 

because M.T. was not in fact biased, a factual determination that this court 

may only reject with clear and convincing evidence.17 Specifically, the TCCA 

pointed to Texas law to highlight that “[v]enire persons are rehabilitated by 

remaining silent when they do not affirmatively state that they cannot follow 

the law.” The court then determined that M.T. “was rehabilitated by her 

silence” and that Canfield “failed to prove that [M.T.] was biased.” The 

TCCA reasonably pointed to good law in Texas and made a sensible factual 

assessment regarding M.T.’s silence during defense counsel’s questioning. 

14 Id. at 610.

15 Id.

16 Id. (internal quotations omitted).

17 See Patton v. Yount, 467 U.S. 1025, 1036 (1984).

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This “does not come close to showing the sort of ‘extreme malfunction in 

the state criminal justice system’ that would permit federal court 

intervention.”18 Therefore, the TCCA was not unreasonable in concluding 

that M.T. was not biased and counsel’s performance was not deficient. 

B

Second, prejudice. Though we could end our inquiry with the deficientperformance analysis, the most persuasive reason to deny habeas relief comes 

with the prejudice prong. Prejudice is demonstrated where a petitioner shows 

“a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.”19 “A reasonable 

probability means a “ ‘substantial,’ not just ‘conceivable,’ likelihood of a 

different result.”20 In this inquiry, the Supreme Court has recently reminded 

us that, in carrying out our deferential review, we may not “‘substitute[]

[our] own judgment for that of the state court.”21

Here, there can be no doubt that, even if M.T. were biased, the state 

court did not unreasonably conclude that her presence on the jury did not 

change the outcome of the trial.22 The evidence of Canfield’s guilt is 

overwhelming. The jury heard (1) testimony from the eight-year-old victim; 

(2) testimony from five outcry witnesses; and (3) testimony from an expert 

who personally interviewed the victim and noted that a coached child would 

18 Shinn, 141 S. Ct. at 526 (quoting Richter, 562 U.S. at 102) (alterations omitted). 

19 Strickland, 466 U.S. at 687.

20 Shinn, 141 S. Ct. at 523 (quoting Cullen v. Pinholster, 563 U.S. 170, 189 (2011)).

21 Id. at 524 (quoting Woodford v. Visciotti, 537 U.S. 19, 25 (2002)).

22 See Virgil, 446 F.3d at 612 (“Prejudice is presumed in a narrow category of cases, 

none of which is present here.”). 

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not be able to provide the detailed information that the victim provided.

23

The defense did not impeach the State’s witnesses or otherwise cast doubt 

on the veracity of their testimony, and it did not offer any witnesses of its 

own. Based on this overwhelmingly one-sided evidence, there is no 

“reasonable probability” that, but for M.T.’s presence, the jury—who 

deliberated Canfield’s guilt for less than an hour—would have acquitted.24

But, if any doubt remains about our assessment of prejudice to 

Canfield, the TCCA’s assessment controls. The TCCA correctly identified 

the proper prejudice standard under Strickland: a reasonable probability that 

the result of the proceeding would have been different absent counsel’s 

errors.25 And, based on its conclusion that M.T. was not biased, and lacking 

23 The expert was a forensic investigator with Child Protective Services who 

specialized in sexual-abuse investigations. During her direct examination, the State also

introduced, and published to the jury, pictures that the victim drew during her interview 

with the expert, which depicted specific details relating to the abuse.

24 See, e.g., Sanchez v. Davis, 936 F.3d 300, 306–07 (5th Cir. 2019) (finding no 

reasonable possibility of different outcome where the state offered four witnesses to the 

crime, the defense offered no mitigating evidence, and the jury returned its guilty verdict 

“swift[ly]”). 

Canfield does not argue that his sentence, separate from the jury’s finding of guilt, 

would have been different but for counsel’s error. Therefore, he has forfeited any argument 

regarding prejudice in sentencing. Cinel, 15 F.3d at 1345. But, even if the argument were 

not forfeited, Canfield has not provided any evidence to suggest M.T. maintained any 

biases with respect to sentencing, and the jury deliberated the appropriate sentence for a 

mere 30 minutes. Taken together, there can be no reasonable suggestion that M.T.’s 

presence on the jury changed the outcome of Canfield’s sentence.

25 To the extent Canfield suggests that the presence of a biased juror amounts to a 

structural error, compare Virgil, 446 F.3d at 607, with Austin v. Davis, 876 F.3d 757, 803 (5th 

Cir. 2017) (Owen, J., concurring) (“The Supreme Court has never held that juror bias is 

structural error requiring automatic reversal.”), such that we must presume prejudice 

without going through a reasonable-probability analysis, Weaver v. Massachusetts closes the 

door on this argument. 137 S. Ct. 1899, 1910–12 (2017). Weaver, which was decided after 

Virgil, expressly left an open question regarding whether, when a structural error is first 

identified through an ineffective-assistance-of-counsel claim instead of on direct appeal, 

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any materially indistinguishable Supreme Court precedent necessitating a 

different conclusion, the court reasonably concluded that the result of the 

trial would not have been different if counsel had challenged or struck M.T.

from the jury. As such, the TCCA’s conclusion was not contrary to or an 

unreasonable application of clearly established Federal law, and, thus, habeas 

relief must be denied.

III

Strickland sets a high bar, which AEDPA raises higher still. Even 

assuming Canfield clears the former, he falters at the latter. The judgment of 

the district court is AFFIRMED.

petitioner is required to show a reasonable probability of a different outcome or if he may 

rely on a showing of fundamental unfairness. 137 S. Ct. at 1911. If there is an open question, 

the law is not clearly established. So even assuming, for the sake of argument, that a biased

juror does pose a structural error, the TCCA’s reliance on the reasonable-probability 

standard, one of the two possible standards recognized in Weaver, could not have been 

contrary to or an unreasonable application of Supreme Court precedent. 

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Patrick E. Higginbotham, Circuit Judge, dissenting:

Today we return to critical issues attending the difficulties of jury 

selection. A cornerstone of the fair trial, it is the last chance for the court to 

expose prejudice and bias before the jurors repair to a virtual vault where 

deliberations are sealed, not to be opened except in the most egregious cases.1

This “no-impeachment rule” grew out of our common-law heritage and is 

now codified in the Federal Rules of Evidence and entrenched in the laws of 

every state.2 Shielding the jury’s deliberations from scrutiny protects the 

finality of the process, enables jurors to deliberate honestly, and ensures, as 

best can be done, their willingness to return a true, if unpopular, verdict.3 But 

this sealing canon comes at a cost: we cannot probe the effects of a juror’s 

bias in the jury room, and in those rare cases when we can and do, remedies 

for the unfairness are elusive. 

As jury selection is the lynchpin of an impartial jury, it ought never be 

a hasty minuet or check-the-boxes exercise; it must always be as exacting and 

careful a process as the case demands. As in the case now before us, potential 

jurors often come with personal experiences and grasping emotions bottled 

in memory and easily set off. These realities bind the trial judge in the interest 

of true verdicts and bind the attorneys in meeting their adversarial duty to 

identify and exclude biased jurors. When a juror evidences a potential bias, 

the selection process must root it out with specific and direct questioning, 

with the judge resolving uncertainty in favor of exclusion. These demands on 

1 See Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868, 871 (2017) (characterizing voir 

dire as a “safeguard[] to protect the right to an impartial jury” and highlighting the 

“advantages of careful voir dire” in preventing bias in jury deliberations).

2 See Fed. R. Evid. 606(b); Pena-Rodriguez, 137 S. Ct. at 865 (“Some version of 

the no-impeachment rule is followed in every State and the District of Columbia.”).

3 Pena-Rodriguez, 137 S. Ct. at 867.

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the court and counsel advance bedrock principles of procedural fairness 

crafted to deliver the right to trial by jury. Yet they only ask that the court and 

counsel do their job.

Here, the trial judge and counsel were acutely aware of the necessary 

care that must attend jury selection and the challenges of this case. Our 

question is whether they succeeded in protecting the jury room. Unlike the 

majority, I conclude that they did not. During voir dire, a prospective juror 

volunteered that she felt the defendant was guilty and would probably vote to 

convict him even if the State failed to prove his guilt beyond a reasonable 

doubt. Neither counsel nor the judge followed up with her. So, she served on 

the jury that first convicted Jerry Lee Canfield and, then, free to choose from 

a menu of sentences from 25 years to life imprisonment, sentenced him to 50 

years in prison without the possibility of parole. I would hold that defense 

counsel’s failure to challenge this biased juror deprived Canfield of his Sixth 

Amendment right to effective assistance of counsel, rendering his sentence 

unreliable, and that the state court’s decision to the contrary was an 

unreasonable application of clearly established law.

I

A

As an initial matter, the facts of Canfield’s sentencing require further 

inspection. At sentencing, the State and Petitioner each called a witness. 

Testifying for the State, Canfield’s aunt, Ronda, described how Canfield’s 

abuse impacted his daughter, M.C., explaining that as a result of the sexual 

assault, M.C. developed emotional problems, boundary problems with adult 

men, and troubling sexual behavior. On cross-examination, she testified that 

Petitioner had a “rough upbringing.” She also testified that Petitioner and 

his children, M.C. and C.C., were homeless at times and that she heard they 

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were living in his car at one point. And she said that M.C. and C.C.’s mother 

had no relationship with the children. 

Petitioner called an expert witness, Dr. William Flynn, a clinical and 

forensic psychologist. Flynn testified that he had interviewed Petitioner and 

assessed his recidivism risk using Static 99, a form with ten objective risk 

factors indicative of a person’s risk of committing another sexual crime. 

Flynn explained that Static 99 is well-established, highly regarded by the 

scientific community, and used by the State to determine whether violent 

sexual offenders set for release from prison need to be civilly committed due 

to their high risk of recidivating.4 He found that Petitioner had eight 

protective factors and two risk factors: his age (30 years) and his prior 

convictions for petty offenses. Canfield had no felony convictions or charges 

of sex offenses beyond those charged in this prosecution.5 With only two risk 

factors, Petitioner had a low risk of recidivism—a 1% to 7% probability of 

reoffending after 10 years of opportunity and almost no chance of reoffending 

after age 60. The State contested the accuracy and utility of the survey 

instrument. Free to choose a sentence from 25 years to life imprisonment, 

the jury sentenced Jerry Lee Canfield to 50 years in prison—effectively a life 

sentence, as the 30-year-old is not eligible for parole. 

B

In his state habeas corpus application, Canfield, proceeding pro se, 

asserted for the first time that his counsel had been ineffective for failing to 

challenge juror M.T, despite her assertion of actual bias and lack of 

4See Tex. Code Crim. Proc. Ann. art. 62.007(c).

5 His record includes several minor offenses, such as possession of marijuana of 

consumable amounts, bad checks and misuse of prescriptions, all suggesting he was a drug 

user but had never been jailed.

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rehabilitation. During voir dire, M.T. revealed that she believed her grandson 

might have been sexually abused, and because of that experience, she would 

probably find Canfield guilty of abusing his daughter, even if the State failed 

to prove his guilt beyond a reasonable doubt. The State opposed Canfield’s 

petition and submitted a twenty-page memorandum setting out proposed 

findings of fact and conclusions of law. The state habeas trial court adopted 

the State’s memorandum verbatim, thereby recommending the denial of 

relief. Adopting the habeas trial court’s findings, the TCCA also denied 

relief.

II

To prevail on his ineffective-assistance claim, Canfield must meet 

Strickland v. Washington’s two-part test.6 He must show that his counsel’s 

performance was deficient and prejudicial to his defense. Since this matter 

comes to us as a petition for habeas relief under § 2254, Canfield must also 

show that the state court’s decision was contrary to or an unreasonable 

application of Strickland.

7 A merely “incorrect” state court decision, one we 

might have decided differently, will not suffice.8

A

Counsel’s performance is deficient under Strickland if the petitioner 

shows that it “fell below an objective standard of reasonableness.”9 We

“apply a strong presumption that counsel’s representation was within the 

6 466 U.S. 668, 687 (1984).

7 Virgil v. Dretke, 446 F.3d 598, 611 (5th Cir. 2006).

8

Id. at 604.

9 Strickland, 466 U.S. at 688.

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wide range of reasonable professional assistance.”10 Counsel’s “conscious 

and informed decision on trial tactics and strategy cannot be the basis for 

constitutionally ineffective assistance of counsel unless it is so ill chosen that 

it permeates the entire trial with obvious unfairness.”11

This case closely resembles Virgil v. Dretke. There, we held that 

counsel’s failure to challenge two jurors rendered his performance 

constitutionally deficient and that the state court’s contrary conclusion was 

an objectively unreasonable application of clearly established law.12 The first 

juror, Sumlin, stated that because some of his relatives are police officers, he 

could “[p]erhaps not” be an impartial juror.13 Asked to clarify whether his 

answer to that question was yes or no, Sumlin responded, “I would say no.”14

The second juror, Sims, stated that his mother had been mugged, and when 

asked whether that would prevent him from being impartial, he replied, 

“Yeah, I believe so.”15 This Court found that Sumlin’s and Sims’s 

unchallenged voir dire comments “obligated Virgil’s counsel to use a 

10 Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal quotation marks and 

citation omitted)

11 Ward v. Dretke, 420 F.3d 479, 491 (5th Cir. 2005) (internal quotation marks and 

citation omitted).

12 Virgil, 446 F.3d at 601. To determine whether a state court has unreasonably 

applied “clearly established Federal law, as determined by the Supreme Court of the 

United States” under § 2254(d)(1), the Supreme Court has explained, “an appellate panel 

may, in accordance with its usual law-of-the-circuit procedures, look to circuit precedent 

to ascertain whether it has already held that the particular point in issue is clearly 

established by Supreme Court precedent[.]” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) 

(citing Tolliver v. Sheets, 594 F.3d 900, 916, n.6 (6th Cir. 2010) (“We are bound by prior 

Sixth Circuit determinations that a rule has been clearly established[.]”)).

13 Virgil, 446 F.3d at 603.

14 Id.

15 Id. at 604.

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peremptory or for-cause challenge on these jurors” and that “[n]ot doing so 

was deficient performance under Strickland.”16

M.T., like Sumlin and Sims, demonstrated that she was biased.17

When the State asked whether any of the jurors would “think [Canfield]’s 

guilty before we even start testimony,” she answered, “I do,” and, “I feel 

that way.” And when asked whether she would find Canfield guilty even if 

the State’s evidence was insufficient, M.T.’s response was straightforward: 

“I probably will just because of where I am right now.” She indicated not just 

the “mere existence” of a preconception of Canfield’s guilt but a likelihood 

that she would vote to convict Canfield even if the State failed to prove his 

guilt beyond a reasonable doubt.18 Her statements amounted to an admission 

that her “views would prevent or substantially impair the performance of 

h[er] duties as a juror in accordance with h[er] instructions and h[er] oath.”19

At no point did she clearly express that she could “lay aside h[er] impression 

or opinion and render a verdict based on the evidence presented in court.”20

As a result, Canfield’s counsel was obligated to use a peremptory or for-cause 

challenge on M.T. Because he failed to do so, his performance was deficient. 

The State argues that even if there was initial bias, it was not 

unreasonable for the state court to find that M.T. was rehabilitated by her 

silence in response to defense counsel’s questions to the venire about holding 

16 Id. at 610.

17 Because juror bias is a factual finding, Patton v. Yount, 467 U.S. 1025, 1036 (1984), 

the state court’s determination is entitled to a “presumption of correctness” unless it can 

be rebutted by “clear and convincing evidence,” 28 U.S.C. § 2254(e)(1).

18 See Irvin v. Dowd, 366 U.S. 717, 723 (1961).

19 Soria v. Johnson, 207 F.3d 232, 242 (5th Cir. 2000) (internal quotation marks and 

citation omitted) (defining “bias”).

20 Irvin, 366 U.S. at 723.

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the State to its burden. The State primarily argues that there is no Supreme 

Court precedent clearly establishing that a juror cannot be rehabilitated by 

silence. But juror bias presents a “question . . . of historical fact,” not a 

question of law or a mixed question of fact and law.21 We therefore must 

determine whether the state court’s finding was “based on an unreasonable 

determination of the facts.”22

Once a venire member has indicated bias, courts have looked for 

persuasive evidence of disavowal before finding rehabilitation, such as a 

simple follow up by judge or counsel: “We need a yes or no, please?” In 

Virgil, we favorably discussed our decision in United States v. Nell, which 

ordered a new trial while noting that “[d]oubts about the existence of actual 

bias should be resolved against permitting the juror to serve, unless the 

prospective panelist’s protestation of a purge of preconception is positive, 

not pallid.”23 Virgil also cited with approval the Sixth Circuit’s decision in 

Hughes v. United States24 and quoted itsreasoning that an “express admission 

21 Patton, 467 U.S. at 1036; see also Thompson v. Keohane, 516 U.S. 99, 111 (1995) 

(“In several cases, the Court has classified as ‘factual issues’ within § 2254(d)’s compass 

questions extending beyond the determination of ‘what happened.’ This category notably 

includes . . . juror impartiality.”); Wainwright v. Witt, 469 U.S. 412, 429 (1985) (holding 

that juror bias determination is a question of fact, even though “[t]he trial judge is of course 

applying some kind of legal standard to what he sees and hears”). Of course, the trial court 

never addressed the issue directly. Judge Posner put it aptly: “Our review of the trial 

judge’s ruling with respect to a challenge for cause is deferential but not completely supine, 

and it is pertinent to note that no issue of credibility is presented. . . . The issue is 

interpretive: did what [the juror] say manifest a degree of bias such that the judge abused 

his discretion in failing to strike her for cause?” Thompson v. Altheimer & Gray, 248 F.3d 

621, 624–25 (7th Cir. 2001) (internal citations omitted). 

22 28 U.S.C. § 2254(d)(2).

23 See United States v. Nell, 526 F.2d 1223, 1230 (5th Cir. 1976); see also Virgil, 446 

F.3d at 606–07.

24 See Virgil, 446 F.3d at 606–07 & nn.30, 33 (citing Hughes v. United States, 258 

F.3d 453 (6th Cir. 2001)).

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of bias, with no subsequent assurance of impartiality and no rehabilitation by 

counsel or the court by way of clarification through follow-up questions 

directed to the potential juror,” supports a finding of actual bias.25 Hughes

further found that a juror’s “silence in the face of generalized questioning of 

venirepersons by counsel and the court did not constitute an assurance of 

impartiality.”26 And in several other cases, after a juror indicated her actual 

bias, the entire venire’s silent response to a group question was not enough 

to establish the juror’s impartiality.27

While in some cases the venire’s silence can support a finding of 

rehabilitation,28 this is not such a case. Here, M.T. demonstrated actual bias 

when she admitted that she felt Canfield was guilty without hearing any 

25 Id. at 607 n.33 (quoting Hughes, 258 F.3d at 460).

26 Hughes, 258 F.3d at 461.

27 See, e.g., United States v. Kechedzian, 902 F.3d 1023, 1031 (9th Cir. 2018) (finding 

on direct appeal that after a juror indicated bias, the silence of the panel in response to a 

question to the group “d[id] not indicate that [the juror] could be impartial”); Altheimer & 

Gray, 248 F.3d at 626 (finding juror bias on direct appeal where, after a juror indicated 

actual bias, the district court judge did not follow up with the juror individually, instead 

“ask[ing] the jury en masse, whether [they] would follow his instructions on the law and 

suspend judgment until [they] had heard all the evidence”); Johnson v. Armontrout, 961 

F.2d 748, 754 (8th Cir. 1992) (granting § 2254 relief and holding that the court “cannot say 

that an ambiguous silence by a large group of venire persons to a general question about 

bias is sufficient to support a finding of fact in the circumstances of this case”); see also 

United States v. Corey, 625 F.2d 704, 707 (5th Cir. 1980) (noting that “[b]road, vague 

questions of the venire” are not enough to prove the impartiality of a juror indicating actual 

prejudice); United States v. Davis, 583 F.2d 190, 196, 198 (5th Cir. 1978) (holding, 

“[w]ithout establishing an inflexible rule” for voir dire, that because of significant pre-trial 

publicity, the trial court’s inquiry was insufficient when the court merely “asked that any 

panel member raise his hand if he felt the publicity impaired his ability to render an 

impartial decision” and no juror responded).

28 See, e.g., Torres v. Thaler, 395 F. App’x 101, 108 (5th Cir. 2010) (per curiam) 

(unpublished) (finding that the juror was not biased for several reasons, including the 

juror’s ambiguous statements, his silent response to a group question, and defense 

counsel’s strategic reasons for keeping him as a juror).

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testimony and that she would probably vote to convict him regardless of the 

strength of the evidence. Later, counsel asked the 60-person venire as a 

group, “Can everybody agree to hold the government to that burden, that 

before we find someone guilty, if you say to yourself, I had a reasonable doubt, 

I will find them not guilty? Can everybody agree to that? Does anyone have 

any reservations about that?” Neither M.T. nor any of the other 59 members 

of the venire responded. Silence, the State urges, demonstrated her 

impartiality. Yet, between her initial statement and absence of any response 

to the question put to the entire venire, there were no intervening events

suggesting that M.T. had a change of heart. Indeed, after her colloquy with 

the prosecutor, M.T. did not speak for the remainder of the voir dire. She 

made no “protestation of a purge of preconception,” let alone a “positive” 

or even a “pallid” one.29 Without something more, the silence of the entire 

venire is not enough to overcome her open statements when directly 

addressed. And there is no other footing for a finding of rehabilitation.

Defense counsel’s state-habeas affidavit makes plain that the failure 

to strike was not a conscious and informed decision on trial strategy.30

Counsel’s affidavit explained, incorrectly, that “[o]f the ten challenges for 

cause, a decision had to be made on which of these prospective jurors we 

would exercise challenges.” But Texas law limited counsel to ten peremptory

challenges;31 it placed no limits on the number of for-cause challenges that he 

could have exercised.32 Counsel’s failure to challenge M.T. for cause was the 

29 Nell, 526 F.2d at 1230. 

30 See Virgil, 446 F.3d at 610 (concluding defense counsel’s affidavit did not justify 

his performance, as it failed to explain why he did not challenge the jurors for cause or why 

he allowed them to serve on the jury).

31 Tex. Code Crim. Proc. Ann. art. 35.15(b).

32 Id. art. 35.16.

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product of a misunderstanding of state law, not an “informed decision.”33 As 

evidence of M.T.’s rehabilitation, counsel’s affidavit also states that M.T. 

remained silent when he asked the jurors if they would be more likely to 

assume a defendant’s guilt based on multiple prior accusations. But 

Canfield’s claim is that M.T. was biased by what may have happened to her 

grandson, not by her views on previous accusations. Counsel’s affidavit 

offers no further strategic reasons for keeping M.T. on the jury.34

“When a venireperson expressly admits bias on voir dire, without a 

court response or follow-up, for counsel not to respond [to the statement of 

partiality] in turn is simply a failure ‘to exercise the customary skill and 

diligence that a reasonably competent attorney would provide.’”35 M.T.’s 

responses “obligated [Canfield’s] counsel to use a peremptory or for-cause 

challenge on [her],” and “[n]ot doing so was deficient performance under 

Strickland.”36 The state court’s conclusion “was contrary to, or involved an 

unreasonable application of, clearly established Federal law.”37

33 Ward, 420 F.3d at 491 (emphasis added).

34 See Morales v. Thaler, 714 F.3d 295, 306 (5th Cir. 2013) (“[T]rial counsel, making 

a reasonable tactical decision, could elect to seat an actually biased juror without rendering 

[ineffective assistance].”) (emphasis added); cf. Torres, 395 F. App’x at 107 (holding that 

counsel was not deficient for not challenging juror where counsel’s affidavit “described a 

trial strategy that involved [the juror’s] statements and personality”).

35 Hughes, 258 F.3d at 462 (quoting Armontrout, 961 F.2d at 754); see Miller v. Webb, 

385 F.3d 666, 675 (6th Cir. 2004) (quoting Hughes).

36 Virgil, 446 F.3d at 610.

37 See 28 U.S.C. § 2254(d)(1).

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B

Canfield must also show that counsel’s “deficient performance 

prejudiced [his] defense.”38 To show prejudice, a petitioner must 

demonstrate “a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.”39 A 

“reasonable probability” is one “sufficient to undermine confidence in the 

outcome.”40 “We focus on ferreting out ‘unreliable’ results caused by ‘a 

breakdown in the adversarial process that our system counts on to produce 

just results.’”41 Our inquiry rests “on the assumption that the decisionmaker 

is reasonably, conscientiously, and impartially applying the standards that 

govern the decision.”42

In Virgil, we found that the same failure Canfield identifies resulted in

Strickland prejudice and an “unreliable” trial.43 In particular, counsel’s 

failure to challenge two jurors who “unequivocally expressed that they could 

not sit as fair and impartial jurors” deprived Virgil of “a jury of persons 

willing and able to consider fairly the evidence presented.”44 We observed 

that “[n]o question was put to either Sumlin or Sims as to whether they 

would be able to set aside their preconceived notions and adjudicate Virgil’s

matter with an open mind, honestly and competently considering all the 

38 Strickland, 466 U.S. at 687.

39 Id. at 694.

40 Id.

41 Virgil, 446 F.3d at 612 (quoting Strickland, 466 U.S. at 696).

42 Id. (emphasis added in Virgil) (quoting Strickland, 466 U.S. at 695).

43 Id. at 613 (quoting Strickland, 466 U.S. at 696).

44 Id.

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relevant evidence.”45 Thus, we could not “know the effect [that] Sumlin’s 

and Sims’s bias had on the ability of the remaining ten jurors to consider and 

deliberate, fairly and impartially, upon the testimony and evidence presented 

at Virgil’s trial.”46 Unable to sustain Strickland’s presumption of an impartial 

jury, we concluded that we “lack[ed] confidence in the adversarial process 

that resulted in Virgil’s felony conviction and 30-year sentence.”47

The same is true here. As a result of counsel’s error, a juror who 

expressed a preconception of Canfield’s guilt and an unwillingness to hold 

the State to its burden of persuasion, and who was not clearly rehabilitated 

on either point, sat on the jury that first convicted Canfield and then 

sentenced him to 50 years’ imprisonment without parole.

48 The law, 

however, mandated that the juror be willing to lay aside her preconceptions.

49

Because M.T. was never asked if she could do so and there is no record 

evidence that she in fact did so, counsel’s failure to challenge her denied 

Canfield an impartial jury.

50

45 Id.

46 Id.

47 Id.; see also Biagas v. Valentine, 265 F. App’x 166, 172 (5th Cir. 2008) (per curiam) 

(unpublished) (citing Virgil) (“[T]he effect that [the biased juror’s] presence on the jury 

had on the ability of the remaining jurors to consider and evaluate the testimony and 

evidence will never be known. Given this uncertainty, [the habeas petitioner’s] conviction 

is unworthy of confidence and, as such, constitutes a failure in the adversarial process.”).

48 Cf. Virgil, 446 F.3d at 612–13.

49 See Irvin, 366 U.S. at 723.

50 Virgil, 446 F.3d at 613.

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C

The presence of a biased juror undermines confidence in the reliability 

of the verdict and thereby establishes prejudice.51 But when the evidence is 

overwhelmingly one-sided, even the presence of a biased juror cannot 

undermine confidence in the verdict. In this important sense, the error is not 

structural. Here, an eight-year-old girl testified that her father sexually 

assaulted her on multiple occasions. She provided detailed sensory 

information that, according to an expert witness, a child who was coached 

would be unlikely to know. Moreover, five witnesses testified that she had 

previously made statements to them that were consistent with her testimony. 

The defense was unable to undermine or cast doubt on the testimony of the 

State’s witnesses and did not call any witnesses of its own. 

While the strength of the State’s uncountered evidence leaves me

unprepared to say that the biased juror rendered the judgment of guilt 

unreliable, I cannot say the same of the sentence. The jury, empowered to 

sentence Canfield to between 25 years and life imprisonment, imposed a 

sentence of 50 years without parole, effectively a life sentence for the 30-yearold defendant. The jury imposed this sentence despite expert testimony that 

after 30 years’ imprisonment, Canfield’s probability of reoffending “drops 

to almost nothing.”52 M.T.’s statements demonstrate a generalized bias 

against the defendant and a desire to convict (and by extension punish) him, 

regardless of whether the State met its evidentiary burden. Considering the 

jury’s broad discretion to select Canfield’s sentence, “we cannot know the 

effect [M.T.’s] bias had on the ability of the remaining . . . jurors to consider 

51 See id. at 613–14; see also Biagas, 265 F. App’x at 172–73.

52 Although the State disputed the accuracy and utility of Static 99, its concern is 

belied by its own policies and conduct: using the tool in its own civil commitment 

proceedings and offering Canfield a 25-year plea deal just to avoid three days of trial.

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and deliberate, fairly and impartially, upon the testimony and evidence 

presented at [Canfield’s]” sentencing.53 Thus, the jury’s sentence was 

unreliable and the defense at sentencing was prejudiced under Strickland.

The State contends that the state habeas court’s decision was not 

contrary to or an unreasonable application of clearly established law after the 

Supreme Court’s decision in Weaver v. Massachusetts.

54 There, the Court 

considered a claim for ineffective assistance of counsel rooted in the trial 

court’s closure of the courtroom during voir dire. Although denial of a public 

trial is structural error, the Court held that prejudice is not presumed when 

it is first raised through an ineffective-assistance claim, as the violation does 

not necessarily result in a “fundamentally unfair trial” or “always deprive[] 

the defendant of a reasonable probability of a different outcome.”55 Without 

a presumption of prejudice, counsel’s error is prejudicial if there is a 

“reasonable probability of a different outcome” in the petitioner’s case or, 

“as the Court has assumed for these purposes,” the particular public-trial 

violation “render[ed] his or her trial fundamentally unfair.”56 Here, the State 

argues that it is not clearly established that a petitioner may establish 

prejudice through fundamental unfairness. Perhaps.57 But my finding of 

53 Virgil, 446 F.3d at 613.

54 137 S. Ct. 1899 (2017) (plurality).

55 Id. at 1911.

56 Id.

57 Only a handful of circuit courts have considered the meaning of prejudice in light 

of Weaver. One read Weaver to hold that a showing of prejudice requires a “reasonable 

probability of a different outcome.” Johnson v. Raemisch, 779 F. App’x 507, 513 n.5 (10th 

Cir. 2019) (unpublished) (internal quotation marks and citation omitted). Most, however, 

have read Weaver to hold that a petitioner may also show prejudice where the particular 

violation rendered the “trial fundamentally unfair.” Williams v. Burt, 949 F.3d 966, 978 

(6th Cir. 2020); United States v. Aguiar, 894 F.3d 351, 356 (D.C. Cir. 2018); United States 

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prejudice turns not on fundamental unfairness but on the lack of reliability.58

I cannot trace the path of the erroneous seating of M.T. to the jury verdict of 

50 years without parole, yet this indeterminacy shadows the reliability of this 

sentencing verdict, which is the heart of the constitutional protection of trial 

by jury and the vital trust of jury verdicts.59 For that reason, a successful 

challenge to the impartiality of a decisionmaker leaves “a defect in the trial 

process that ‘undermine[s] confidence in the outcome’ in violation of 

Strickland” and thus a reasonable probability of a different outcome but for 

counsel’s errors.60 As a result, the relevant law remains “clearly established 

. . . as determined by the Supreme Court of the United States.”61

III

State law provides that when “the court of appeals or the Court of 

Criminal Appeals awards a new trial . . . only on the basis of an error” at 

sentencing, the trial court shall “commence the new trial as if a finding of 

guilt had been returned and proceed to the punishment stage of the trial.”62

v. Thomas, 750 F. App’x 120, 128 (3d Cir. 2018) (unpublished), cert. denied, 139 S. Ct. 1218 

(2019); Pirela v. Horn, 710 F. App’x 66, 83 n.16 (3d Cir. 2017) (unpublished).

58Virgil, 446 F.3d at 612 (quoting Strickland, 466 U.S. at 696) (“Absent mechanical 

rules, ‘the ultimate focus of the inquiry must be on the fundamental fairness of the 

proceeding whose result is being challenged.’ We focus on ferreting out ‘unreliable’ results 

caused by ‘a breakdown in the adversarial process that our system counts on to produce 

just results.’”); cf. Weaver, 137 S. Ct. at 1915 (Alito, J., concurring) (“Weaver makes much 

of the Strickland Court’s statement that ‘the ultimate focus of inquiry must be on the 

fundamental fairness of the proceeding.’ But the very next sentence clarifies what the 

Court had in mind, namely, the reliability of the proceeding.”).

59 Strickland, 466 U.S. at 687 (emphasis added) (Prejudice “requires showing that 

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result 

is reliable.”).

60 Virgil, 446 F.3d at 614 (quoting Strickland, 466 U.S. at 694).

61 28 U.S.C. § 2254(d)(1). 

62 Tex. Code Crim. Proc. Ann. art. 44.29(b).

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It continues: “If the defendant elects, the court shall empanel a jury for the 

sentencing stage of the trial in the same manner as a jury is empaneled by the 

court for other trials before the court.”63 The Texas Court of Appeals has 

read this article to apply to “new punishment hearings awarded through a 

habeas proceeding in federal court.”64

In my view, the presence of a biased juror rendered Canfield’s 

sentence unreliable. I would therefore reverse the district court’s judgment 

denying habeas relief and remand to that court with instruction to return this 

case to the State of Texas for a new sentencing trial with a jury if Canfield 

elected, or, in the State’s discretion under the laws of the State, a new trial. I 

respectfully dissent.

63 Id.

64 Johnson v. State, 995 S.W.2d 926, 928 n.1 (Tex. App. 1999); cf. Lopez v. State, 

18 S.W.3d 637, 640 (Tex. Crim. App. 2000) (citing Rent v. State, 982 S.W.2d 382, 385 

(Tex. Crim. App. 1998)) (explaining that art. 44.29(b) was “enacted in order to give an 

appellate court the authority to remand a case on punishment only”). But see Johnson, 995 

S.W.2d at 931 (Gray, J., concurring) (concluding that art. 44.29(b) does not apply when the 

remand is ordered by a federal court).

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