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w . v i l l a no va . e du/thir dc ir c uit_2004/525NOT PRE CEDENT IAL IN THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT

_______________ No. 03-2619

________________ DAVID B ROWN,
v. Appellant WARDEN , SCI -RETREAT

____________________________________ On A ppeal Fro m the U nited States D istrict Court For th e M iddle D istrict of P enns ylvania (D.C. No. 98-cv- 01961) Distri ct Judge: Honorable A. Richar d Caputo

_______________________________________ Submitte d Under Third Circ uit LAR 34.1(a)

June 29, 2004 Be for e: A M BR O, B EC KE R a nd G RE EN BE RG , Circuit Judges (Fil ed July6, 2004)

_______________________

OPI NION

_______________________ BE CK ER , Circuit

Judge. This is an ap peal by defen dant D avid Bro wn f rom an order of the District Cou rt denyi ng his petiti on for habeas cor pus under 28 U.S. C. § 2254. Brown is a s tate prisone r2

cur ren tly serv ing a se nten ce o f im priso nm ent f or b urg lary, as sau lt, and relat ed o ffe nse s. He contends that his stat e court t rialcounsel r endered i neffecti ve assi stance when he fail ed to seek t

he removal of a j uror who had been the victi m of a burglary and had, on another oc casion, been thre atened with a handgun. Although the Dist rict Court agree d that c ounsel’ s repre sentation was defic ient, it deni ed reli ef on the gr ound that Brown had fail ed to prove prejudic e in te rms of actua l bias against the defendant . Brown argues t hat the District

Court erred in util izing an “actual bias” st andard rather than an “implied bias” standard, and that, even if an “ actual bias” stand ard is the correct on e, the District Cou rt erred i n its applic ation of the st andard. Becaus e the parties are ful ly famili ar with t he background fact s and procedur al his torywe need not set them forth, and l imit

our discussion to o ur ratio d ecide ndi. For th e r eas ons th atfol lo w, we wil l a ffi rm. The evidenti ary hearing c onducted bythe Dist rict Court contained the following testimony by

Mr. Bobb, the j uror whose putative bi as was the primarybasis of the habeas chall enge concerni ng burglary of Bobb’s home, which he conceded made hi s wife feel insecure: “M r. Brow n wa sn’t involved in that crime [the o ne against M r. Bobb], so I’m not going to hold anything ag ainst him.” A dditionally, in response to the C ourt’s questi on: “Had you be en asked about that [ being threatened wit h a gun], would t

hat have colored y our judgment, in anyway, as far as y ou rabil ity to li sten t o the evi dence and decided th e case, based on the ev idence that you he ard and the instructions that the cou rt gave?,” Bobb repl ied “no. ” Bobb also te sti fied that “he [t he appell ant] wasn’ t the one3

wh o bu rglarize d m y house , so I w as go ing in th ere w ith a fa ir and o pen m ind.” W ith respect to the ot her inci dent, occurri ng about fi ve or si x year s prior to Brown’s trial, an indivi dual the Bobbs were buyi ng a house from threatened Bobb with a gun, but Bobb testifie d that t

his i ncident

would not have col ored his judgment i n any way , and that he would be able t o lis ten to t he evidence a nd decide the case base d on the evi dence and the Court’s instructions. Brown’s contention that this case shoul d be governed byan impli ed bias s tandard, see Smith v. Phlli

ps , 455 U .S. 209 , 221 ( 198 2) ( O ’Co nno r, J., conc urring ), is legally frivol ous. As we noted i n United States v. Calabrese , 942 F.2d 218 (3d Cir.1991 ), app li cat io n of th e do ctri ne o f i mpl ie d bi as is “‘ li mited i n ap pl ic at io n t o t hos e ex tr eme situations where the re lati onship between a prospective juror and some aspect of the litigati on is such t

hat it is hi ghly unlikel y that the average per son could r emain impartial in his delibe rati ons under the circ umstances. ’” Id . at 226 n.3 (quoting Person v. Mil ler , 854 F.2d 656, 664 ( 4th Cir. 1988)). That standard si mply does not “fi t” the facts he re, which are l ight y ears fr om the facts of Sm ith . Th us th e ac tual b ias st and ard app lies. In determin ing wh ether a juror is (actually) biased, a court sho uld conside r factors such as: the obje ctive simil arities between the events , the effects of the crime on the juro r’s lif e, an d th e pa ssag e of time sinc e the crim e. See, e. g. , Gonzales v. Thomas , 99 F.3d 97 8, 990-91 (10th C ir. 1996). Bob b’s testimony at the D istrict court’s evidentiary hearing e stabl ishes t

hat the situations were dissi milar. First , Bobb’s house was4

burgl ar iz ed whi le he was not at hom e, unl ik e the vi ctim s i n Br own ’s ca se . S ec ond , two year s had passed. Finall y, but for Bobb’s wife feeli ng insecur e, the inci dent had l ittle or no effect on Bobb’s life . The second i ncident (invol ving the gun t

hreat) also had no influe nce on Bobb’s li fe. Apply ing de novo review to Brown’s ineffective ass ist ance of
cou nse l claim , see United States v. Cross , 308 F.3d 308, 314 (3d Cir. 2002) (ci ting Duncan v. Morton , 256 F.3d 189, 200 (3d Cir. 2001)), we are sati sfied t hat juror Bobb
was n ot actually biased, and he nce there w as no preju dice flow ing from his counse l’s putative ineffe ctive assistance. Th e order of the District Cou rt denying Brow n’s applic ation f

or a writ of habeas corpus will be a ffirmed.