1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ATION: 2004 FED App . 0323P (6th C ir.) File Name: 04a03 23p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
K ENNY R OY M ILL ER , Petitione r-Appell ant,

v.

P AT TI W EBB , Warden, Respondent-Appellee. X

- - - -
> , - - N No. 02-5907

Appeal from the United States District Court for the Western District of Kentucky at Owensboro. No. 01-00187—Joseph H. McKinley, Jr., District Judge.

Submitted: June 11, 2004 Decided and Filed: September 22, 2004

Befor e: KEI TH, CL

AY, and G

IBB ONS, Circ

uit Judges

.

_________________ COUNSEL

ON BRIE F: Kenny

Roy Miller, Central City, Kentucky , pro se. KEITH, J., delivered the opinion of the court, in which CLAY, J., joined. GIBBONS, J. (pp. 22-30), delivered a separate dissenting opinion. 2 Miller v. Webb No. 02-5907

_________________ OPINION

_________________ DAMON J. KE ITH, Circuit Judge. Petitioner-Appellant Kenny Ro y Mi ll er (“ Mi ll er ”) is cu rr en tl y s e rving a life sentence after a

stat e conviction for intentional murder, criminal attempt

to commit murder, first-degree burglary , and being a first-degree

persistent felony off

ender. Miller ap

peals fromthe district court’s denial of his petition f o r a writ of habeas corpus pursuant to 28 U.S.C. § 2 254 . In his habeas petition, Miller al leges t

hat his tri a l cou nsel was ineffective for failing to challenge a biased juror durin g voir dire . Miller argues th at th e K en tu ck y Court of Appea ls denial o f his ineffective assistance of counselclaim was contrary to, andan unreasonableap plication of, clearly established federal law. For th e reasons set forth below, we REVERSE the distr ic t court’s order and REMAND for proc eeding s consiste nt with this opinion.

I. BACKGROUND

OnNovember 14, 1990, a grand jury in Warren Co un ty, Ke n tucky indicted Miller for intentional murder, criminal attempt to commit murder, first-degree burglary, and be ing a first-degree

persistent felony off

ender. The i ndictment charged Miller for shooting and killing Le on Gr ay a nd shooting and seriously wounding Linda Cline in their bed at
an ap ar tm en t i n B ow li ng Gr ee n, Ke nt uc ky.

OnAugust 17, 1992, a jury trial commenced

against Miller inthe W arren C ircui t Cou rt. Du ring voir dire , on e prospective juror, Yvonne Be ll (“Juror Bell”) , in response to the prosecutor’s voir dire question, stated tha

t she was a minister and that she had known Linda Cline for two or three years throu gh Bible study. L

inda Cline, the woman who was shotand seriously wounded, was one of the prosecution’s key witnesses and the only ey ewitness to the crime. At this pointNo. 02-5907 Miller v. Webb 3

of the voir dire , Miller’ s trial co unsel, Wi llia m Ska ggs (“Skaggs”), did not ask

Juror Bel l any

follow-u p question s. Towards the end of the voir dire , however, the trial court asked the members of the jur y pa nel if the y w anted toreveal further information. The following dialogue took plac e: Judge: Ok ay, one f inal thing. . . . [D]uring the
course of this proceedi ng there may ha ve been something that was asked that y ou let go by. S omet hing that you thoug ht you
we ren’t sure but now its bothering y ou

. Anybody have anything the

y need, feel like they need to bring up with the court, I’ll be happy to take it up here at the bench, that you would fe el would in

any way would
cause you any difficulty in sitting asa

juror in this case. Yes, ma’am, come on up. [bench conference]

Ms. Bell: I’m Y

vonne Be ll. Judge: Yes, Ms. B ell.

Ms. Bell: I feel like I would k ind of be partial t o Linda Cline because, when she wa s in my classes (inaudible) she seemed like she

r eally w anted to do better and I kind of have sympathy

for her in this case, with her being the victim. Judge: Do you believe the f a ct that you had her, you indicated, in B ible studie s, and will appear a s a wit

ness in this

case an d is alleged to be one of

the victim s in this case, do you believe that woul d in fluence your thinking here and c ause you to be

m ore sympathetic for he r side as such as you couldn’t sit and be

fair and impartia

l? 4 Miller v. Webb No. 02-5907

Ms. Bell: Ith in k I co ul d be fai r. I t hink I could b e fair

. I mini stered in

the women ’s secti o n for about four ye ar s. She was ki nd of in and out, butshe seemed

like she wanted to do better, but I believe I

could be fair and whether she’s guilty or

not guilty I

believe Icould be fair a bout it al l. Bu t I do hav e some feelings about her. Judge: Ok ay, ma’am. I ’m going to . . . go back

and take your

seat, I’m going

to hear from the lawy ers. Mr. Skag gs: Judge, may I ask her a question? Judge: Ye s, you ma y. Mr. Skag gs: The women’s section. The wome n’ s

section o f what?

Ms. Bell: The Warr

en County

Jail.

Mr. Skagg s: Okay, and how many y ears ago wa s this, or was it re cent?

Ms. Bell: From

’80 . . . about

four yea rs, up until last year. Mr. Skag gs: Okay , and so you have see n her since this happened?

Ms. Bell: No , I haven’t[.] I ha ven’t been co ming t o the (inaudible) for about a y ear now. Mr. Skag gs: Well, this happened 18 months ago.

Ms. Bell: W ell, I don’t know. I don’t remember. I
never ask any of the

m about why

they ’re in for or any of th ei r busines s. My

whole
concern was the word

of God. I ne

ver talkNo. 02-5907 Miller v. Webb 5

to them abou

t their ca ses or an

y of their persona l business

. Mr. Skag gs: I see . That’s a ll. Judge: Ok ay, you may step do wn. Ju st take your
se at back. [Juror departs.] Do eithe r o f you want me to co nsi der strik ing this woman, this juror for cause?

Mr. Wilson: Well. She said she could be fair. She does know the person but she did answer the question that she could be fair. Mr. Skag gs: I have no motion.

Inaddition to not challenging Juro r Be ll for cause, Miller’s trial counsel did n ot us e a perem ptory chal lenge to remove the prospective juror. Therefore, Ju ro r B el l r em ai ne d o n t he ju ry.
OnAugust 1 9, 1992, the jury, which included J uror Be ll, convicted Miller on all charges of th e indictment. On September

2, 1992, the trial court sentenced Miller to life and to two twent

y- ye ar te rms of imprisonment, to run
co ns ec ut iv el y. Miller fil ed a dire ct appeal to the Kentucky Supreme Court concerning

the judg ment of c onvicti on and sentenc e. On Septem

ber 29, 1 994, the K

entucky Supreme Court affirmed the convicti on, but re manded the case

for resentencingand dire cte d th e trial court to run Miller’s life sentence conc u rrently with his forty -year sentence. On November

15, 1994, the trial court re -sentenced Mille r in accordance with the Kentucky Supreme Court’s order.

OnOctober 26, 1995, with new court-appointed cou nsel, Miller filed a motion to vacate the judgment based upon ineffective assistance of counsel. Am on g his all egations, Miller argued that his trial counsel wa s in effective when he allowed Juror Bell, a biased juror, to remain on the jury. On September

2, 1998, the Warren Circuit Court held an 6 Miller v. Webb No. 02-5907

evidentiary

hearing. The Warren Circuit Cour t heard testimony fromMiller an

d his trial couns el, S kaggs. S kaggs testified that he did not s eek to exclude Juror Bell from the jury beca use:
Most people do not understand the

world of extreme hard
core drug a

ddicts an d . . . thiscase [involved] hard core drug addicts .

. . . It is a d if fe re nt re al it y. Regular jurors do n ot understa

nd that ha

rd core drug a ddicts wil l lie

. . . [.] They will only

tell the truth if they have no othe r op po rt un it y. And , si nce th is lad y kne w Li nda Cl ine, knewshe was completely unworthy of b elief, Ileft her up. . . . Anyone who kne w Lind a Cline, kn ew that she could not be trusted, that was my thinking at the time.

OnFebruary

2, 1999, the Warren

Ci rcuit Court denied Miller’s motion. Mill er appea led to the Kentucky Court of Appeals

. On January 19, 2001, the Kentuc ky Court of Appeals affirm ed the Warren C ircuit Court’s decision holding that Miller failed to rebut the presumption that trial counsel’s decisionto not exclude the juror was sound trial strategy and, therefore, notdeficient

performance pursuant to Strickland v. Washington , 466 U.S. 668 (1984). Miller filed a motion for discretionary r

eview with the Kentucky Supreme Court. On October 17, 2001, the Kentucky Supr em e Court denied Miller’s motion.

After exhausting his remedies inthe Kentu cky state co urts,
onNo vember 2, 2001, Miller filed a petition for a writ of habeas corpus, pro se , pursuant to 28 U.S.C. § 2 254 in t he United Stat es Dist

rict Court for the Western District of Ke nt uc ky. Miller raised five claims of ineffective assistance of counsel. Miller

argued that: (1) his attorney failed to seek to exclu d e Juror Bell, who knew and admired the State’s primary witne s s; (2) his attorney fa iled to investigate and subpoena witnesse s to directly c ontradict the State ’s c hi ef witness; (3 ) h is at to rn ey a ttemp ted to establish an alibi defense, which he knew he c ould not suppor

t by credibl e witnesses; (4) his attorney failed to move for a mistrial afterNo. 02-5907 Miller v. Webb 7

a juror ha

d prejudi cial expos

ure to a s pectator at tria

l; an d (5) the cumulative effect of his coun sel’ s errors constituted ineffective assistance.

OnJanuary 7, 2002, the

district c ourt ref

erred t he matter to
a magistrate judge for a re

port and recommendation. On May 28, 2002, the

magistr ate judg e enter

ed fin dings of

fact and conclusions of

law, recommending that thedistrict court deny t he petition on the merits and issue a certificate of appeala bility on the first issue on ly , becau se reas onable ju rists could find the a ssessmen

t of the c onstituti ona l claim debatab le or wrong. On June 10, 2002, Miller filed objections to the findings of fact. On June 19, 2002, the districtcourt entered

an order adopting the mag istrate

judge’s report and recommendation. In de nying the ha

beas petition
onthe first issue, the district court held that Miller fa iled to
overcome the pres

umpti on tha t trial counsel’s reason for allowing Juror B ell to re main on the jury was sound trial st ra te gy. In addition, the district court held that Miller failed to show that Juror Bell was actually biased a gainst him. Th erefo re, the district court ruled that Miller failed to show that the decision of t he Kentucky Court of Appeals, which denied his ineffec tiv e assistance of counsel claim, was contrary to, or an unr

easonab le applic ation of, clearly established federal law.

On July 17, 2002, Miller filed a notice of appeal for the districtcourt’s denial of

his habeas p etition ba sed on his f irst claim of ineffective assistance of counsel, which the di stric t court certified. On July 24, 2002, Miller al so a ppealed the districtcourt’s order

deny ing a ce rtifica te of app ealabili

ty on Miller’s remainin

g four c laims. On Ja

nuary 17, 2003, t

his Courtdenied Miller’s appl icat ion for a partial certificate of appeala bility holding that Miller failed to make a substantial showing of

t he denial of a constitutional right. This Court determined

that Miller’s appeal should pro ceed on the claim that the district court certified: Whether Miller was denied the effective assistance of counsel when his trial c ounsel failed to seek to exclude Jur or Bell

. On May 12, 2003, 8 Miller v. Webb No. 02-5907

1 We decid e this case unde r the A ED PA beca use M iller filed his peti ti on for

a writ of habeas corpus on November 2, 2001, wel l af ter the AE DP A’s effective d ate of A pril 24 , 1 996

. S ee Li ndh v. Murphy , 521 U.S. 320 , 336 (19 97) ; Barker v. Yuk ins , 199 F.3d 867 , 871 ( 6th Cir. 1999). Respondent-Appellant

Patti We bb , Warden, waived the opportuni ty to respond t o Miller’ s appeal

. II. DISCUSSI ON

This Court reviews a district court’s legal conclusions in a habeas petition de novo. Lucas v. O’Dea , 179 F.3d 412, 416 (6th Cir. 1999). This Co urt usually reviews f indings of fact f or clear error, “but when the district court’ s decision i n a habeas case is based on a

transcript from the p etitioner ’s state court trial, an d the distr

ict cour t thus make s ‘no cre dibility determination

or other apparent findings of fact,’ the district court’s factual findings are reviewed de novo .” Wolfe v. Bri gano , 232 F. 3d 499 , 501 ( 6th C ir. 20 00) (q uoti ng Moor e v. Carlton , 74 F.3d 689, 691 (6th Cir. 1996)).

Indetermining whether to issue a writ of habeas corpus, the provisi o ns of the An

titerror ism and Ef

fective Death Pe nalty Act of 1996 (“AEDPA”) govern the district court’s review of
a state court decision. 1 28 U.S.C. § 2241. Pur suant to the AEDPA, [a]n application for a writ of habeas corpus on behalf of
a person in c ustody

pursuant to the judg

ment of a State court shall not be granted

with resp ect to an

y c laim that
was adjudicated

onthe me rits in St ate cou rt pro ceedin gs unless the adjudica tion of the

claim– (1) resulted in a decision that was contrary to, or involved an unrea sonable a

pplication of, cle arly established

Federallaw, as deter

mined by the Supre me Court of the United States; orNo. 02-5907 Miller v. Webb 9

(2) resulted in a decision that was based on a n unreasonabledetermination of the facts in light of the evide nce pre sente d in t he St ate cou rt pro ceedin g.
Id . § 2254(d).

Th e Sup reme Court explained these requirements for habeas relief under 28 U.S.C . § 2254(d)(1) in Williams v. Taylor , 5 29 U.S. 362 (2000). In Williams , the Cour t held that, inor de r t o j us ti fy a grant of habeas relief, a federal court must find a violation of law that is “clearly

established” from “the holdin gs, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Id. at 412. The Court held that a state court’s legal decisionis “contrary

to” clearly

established federal law

“if the statecourt

arrives at a conclusion opposite to that reached by [the Supreme] Court on aquestionof law or if the state court decides a case d iffere ntly than [the Supreme] Court has on a set of materially indistinguishable facts.” I

d. at 413. Furthermore, the Court held that a sta te court’s legal decision will be deeme d an “unr easo n able app lication”

of clea rly established

federa l law “if the state court identifies the correct governing legal principle

from [the Su

pr eme] Court’s decisions but unreasonably a pplies thatprinciple to the facts of the prisoner’s case.” Id.

A federal court, however, may not find a stateadjudication to be unrea sonable “ simply because that court conclude s in its i nd ependent

judgment that the relevant state-court decision applied cl ear ly established fede ral law erroneously

or in co rr ec tl y. Rather, t hat appli c at ion must also be unreasonable.” Id. at 411. Moreover, a federalcourt making the unreasonable application inquiry should not transform the inquiry into a subjective one by inq u iring whether a

ll
reasona ble jurists wo

uld agree that the application by the state court was unre asonable . Rath er, the issue is “whether the statecourt’s application of clea rly es tablished

federa l law is objectively unrea sonable.” Id. at 410. 10 Miller v. Webb No. 02-5907

Under the AEDPA , theref

ore, the threshol d inquiry

is whether Miller seeks to apply a r ule of law that was clear

l y established

at the time

of his conviction in the state court. See id. at 412. Miller se eks to apply the Supreme Court’s holding in Strickland

v. Washington , 466 U.S. 668 (1984),which the Supreme Court had clearly

established at

the time of Miller’s conviction, to show ineffective assistance of cou nsel. The Court in St rickland

established a two-

prong te st to evalu

ate claims of ineff

ect ive assistance of counsel pursuant to the SixthAmendmen

t. First, the petiti o ner

“must show that counsel ’s r epresentation fell below an objective standard of
reasona bleness. Judici al scrutiny of counse l’s performance must be high ly deferential, and a

fair assessment of attorney performancerequires that every effort be made t o e liminate the distorting effects of hindsight, to recons tru ct the circumstances of counsel’s challenged condu ct, and to evaluat e the conduct from counsel’s perspective at the time.” Id. at 689. A cour

t consid ering a claim of ineffective assistance of counse l “must indulge a strong presumption that
couns el ’s conduct f

alls within

the wide r

ange o f reasonable professional assistance.” Id. Second, the pet ition er must show that counsel’s perfor manc e prejudiced the petitioner. That is, the petitioner m

ust “sho w that the

re is a re asonable probabil ity

that, bu t forcounsel’s unprofessional errors, the result of the pr

oceedin g would have bee

n dif ferent

. ” Id. When a biased

juror isimpaneled, however, “prejudice under Strickland

is presumed, and

a new trial is required.” Hughes v. United States , 258 F.3d 453, 457 (6th Cir. 2001).

M ill er argues that it was ineffective assistanc e of counsel for his trial counsel to keep Juror Bell, a biased juror, on the ju ry. Pursuant to the Sixth and Fourteenth Amendments, a criminal defendant is guaranteed the right to an

impartial and unbiased ju ry. Morgan v. Illinois , 504 U.S. 719, 727 (1992). “Amongthe most ess ential responsibilities of defense counsel is to protect his client’s constitutional right to a fair and impartial jury by usin g voir dire to ident ify

and ferret out jurors who are biased

against the defense.” Miller v. Francis , 269 F.3d 609, 615 (6th Cir . 2001); see Uni ted States v.No. 02-5907 Miller v. Webb 11

Blount , 479 F.2d 650, 651 (6th Cir. 1973) (“The primary purpose of the voir dire of jurors is to m ake pos sible the emp anelling of an impa

rtial jur y th rough q uestions that permit the intelligent exercise of challenges by counsel.” ); see also Mu’Mi n v. Virgini

a , 500 U .S. 4 15, 43 1 (199 1) (st ating t ha t voir dire “serves the dual purposes of ena bling the cour

t to select an impartial jur

y and a ssisting counsel in exercising pere mptory chal lenges”); Rosales-Lopez v. United States , 451 U.S. 182, 18 8 (19 81) (“ Voir dire play s a critic al funct

ion in assuring the crimi

nal defe ndant tha t his Sixth Amen

dme n t right to an impartial jury

will be honored.”). Counsel, however, is granted defer ence whe n con ducting voi r dire. Hughes , 258 F.3d at 457. “An attorney ’s action s during voir dire

ar e c on si de re d t o b e m at te rs of tr ia l s tr at eg y.

. . . A strategic decision cannot be the basis for a c la im of ineffective assistance unless counsel’s decision i s shown to be
s o ill-chosen that it permeates the entire trial with ob viou s unfairne s s.” Id. (citation omitted). Despite this strong presumptionthat counsel’s decisions are based on sound trial st ra te gy, it is i nsufficient for counsel to simply a rticulate a
reason for an omission or act alleged to constitute ineffective assist ance of counsel. “The trial strategy itself must be objectiv ely

reasonable.” Miller , 269 F.3d at 616 (c i ting Strickland , 466 U.S. at 681).

A trial court’s management of voir dire is granted similar deference. The Supre

me Court has acknowledged the

“ traditionally

broad dis cretion

accord ed to the t

rial ju dge i n conducting voir dire

. ” Mu’Min , 500 U.S. at 423. A trial court’s management of voir dire , howeve r, is “sub ject to essential deman ds of fairness.” Hughes , 258 F.3d at 457 (citations and internal quotation marks omitted)

. Because a petitioner’s Sixth Amendment right to an impartial jury is at stake, “[a] defendant may obtain a new trial if an impaneled juror’s honest responses to questions on voir dire would have given rise to a valid ch allenge for cause.” Id. (citing McDonough Power Equip., Inc. v. Greenwood , 464 U.S. 548, 556 (1984)). “‘Challenges for ca use are subject to ap prov al 12 Miller v. Webb No. 02-5907

by the court and must be based on a finding of actua l or impliedbias.’” Id. (quot ing Virgin Islands v. Felix , 569 F.2d 1274, 1277 n. 5 (3d Cir. 1978)).

Pursuant to the Sixth Amendment, for a finding of juror impartia lity when a juror is challenged for c ause, the relevant questionis “did [the] juror swear that he c ould

set aside any opinion he might hold and decide the case on the ev i dence, and should the juror’s protestation of impartiality ha ve been believed.” Patton v. Yount , 467 U.S. 1025, 1036 (1984). A qual ified juror ne ed not be “

totally ignora nt of the f acts a n d issues invo lved.” Murphy v. Florida , 421 U.S. 794, 800 (1975). Rather, “‘[i]t is sufficientif the juror can lay aside his impressionor opinion

and rend

er a ver dict b ased on the evidence presented in court.’” Id. (quot ing Irvin v. Dowd , 366 U.S. 717, 723 (1961)). In Irv in , the Supreme Court stated:

In these days of sw

ift, widespread and diverse met hod s of communication, an important case can beexpected to
arouse the interes t o f the public in the vicinity, and
scarce ly any of those best qualified to serve as juror s will not have for

med some im

pression or opinion

as to th e merits o f the case. This is particularly true in criminal
cases. To hold th at the m ere existence of any preconceived

notion as t

o the gu ilt o r inno cence of an accused, witho ut more, is sufficient to rebut the presumptionof a

prospective juror ’s impart iality would be to establish

an impossib le standar

d. It i s suffici ent if the juror can lay

aside his impression or op inion and render a verdict based on the evi dence presente d in court

. Irvin , 366 U.S. at 722-23.

If actual bias is di scove red du ring voir dire , the trial court must excuse the prospective juror. Hughes , 257 F.3d at 459. “‘Actual bias is “bias in fact”– the existence of a state of

mind that leads to a

n infere nce that the pers on will not ac t with entire impartiality.’” Id. at 46 3 (quoti ng United States v.No. 02-5907 Miller v. Webb 13

Torres , 128 F.3d 38, 43 (2d Cir. 1997) (citi ng United States

v. Wood , 299 U.S. 1 23, 133 (1 936))). Alth ough bias can be revealed through a prospective juror’s express admission,
more frequently, juror

s are reluctant

to admit actual bias and t he t rial c ourt m ust d iscov er thei r bias ed att itud es thr ough circumstantial evide nce. Id. at 459 (citi ng United States v. Allsup , 566 F.2d 68, 71 (9th Cir. 1977)).

Becau se Miller’s claim for ineffectiveassistance of counsel is based on his trial counsel’s failure to strike a biased juror, Miller must show that the juror w as actually biased a gainst him. Id. at 458 (citi ng Goeders v. Hundley , 59 F.3d 73, 75 (8th Cir. 1995) (c itin g Smith v. Phillips , 455 U.S. 209, 215 (1982))). “A juror’s express doubt as to her own impartia lity
on voir dire

does not ne cessar

ily e ntaila finding of actual bias. The Supreme Court has upheld the impaneling of jurors who had doubted, or disclaimed outright, their own impartial ity on voir dire .” Id. ; see also Patton , 467 U.S. at 1025 (holding that trial court did not commit “manifest error” when finding jury me

mbers to be impartial despite admitting that they formed a

nopinion as to the def

endant’ s guilt due to pretrial publicity).

T his Court in Hughes , however, found actual bias when a juror made an u

nequiv o cal statement of partiality and there
was neither a subsequent assurance of impartiality nor rehabilitation by counsel or the c ourt through follow-up questions

. Hughes , 258 F.3d a t 460. In Hughes , the government charge d the defendant with theft of government propert y and wrongful possession of a firearm in conne ction with the robbing of a Deputy

United States Marshall. During voir dire , the judge asked

potential jurors if they could be fair. In response, the following exchange occurred:

JUROR[Jeanne Orman]: I have a nephew on the police forc e in Wyandotte, and I know a co

uple of de

tectives , and I ’m quite c lose to ’e

m. 14 Miller v. Webb No. 02-5907

THE COURT: Any

thing in that relation ship that would prevent you f

rom being fair in this case?

JUROR: I don’t think I could be fair

. THE COURT: You don’t think you could be fa ir?

JUROR: No.

THE CO UR T: Ok ay. Anybody else? Okay . Where di d we leave off?

Id. at 456 . Neit her th e judge nor counsel asked any follow-up questions

. In addition, counsel never attempted to r emove the juror for cause or

by perempt ory strike. T his Court he ld that, while a juror’s express doubt as to her ability to be impartial
on voir dire does not necessarily result in a

finding of actual bias, actual bias was present because neither counsel nor the trial court re sponded to

the juror ’s expres s statement that she
c ould not be fair. There was no subsequent assuranc e o f impartia lity and no re

habilitat ion by counsel or the court throu gh follow-u

p question s. This Court held that, when left with only a stateme

nt o f partiality without a subsequent assurance of

impar tial ity or reh abili tati on th rough follow-up questions , “j uror bi as can alway s be presumed from such unequivocal statements.” Id. at 46 0. As a r esult of finding actual bias, this Court held that the state court’s denial of the defen dant’s ineffe ctive as sistance of counse l claim wa s an unreasonable application of clearly established federal law.

Our present case is similar

to Hughes

. As in Hughes , Juror Bell did not unequivocally swear that she could set aside her opinion and decide the case on the evidence. When the trial j udge asked the jury pa nel whether any

individual ha d anything else to ad d, J uror Be ll stated, “I f eel like I would kind of be partial to Linda Cline beca use, when she was in my classes (inaudible) she seemed like she really wanted to do better and I kind

o f have sy

mpathy for her in this cas e, with her being the victim.” Jur or Bell indicated that she wasNo. 02-5907 Miller v. Webb 15

“partia l” to th e govern ment’ s key witn ess. T he tri al jud ge asked only one follow-up question re garding whether she could be fair and impartial. In r esponse, Juror

Bell stated, “I think Icould be fair,” however, she immediately qualified her state ment by stating, “[b]ut I

do have some feelings ab ou t her.” Although defense counsel question ed h er further, he only inquired about

the women’s section and the jail. Neither counsel nor the judge followed-up on her statement of pa rt ia li ty. They did not ask whethe r she could “lay

aside [her feeling s] and render

a verdict based on the evidence presented incourt.” Irvin , 366 U.S. at 722-23. In this context, when a juror makes a statement that she thinks she can be fair, b ut immediate ly

qualifie s it with

a statement

of partiality, actual bias is presumed when proper juror rehabilitation and j uror assurances of impartiality are absent, as in Hughes

. This Court acknowledges that, when asked whe ther a particular juror can be fair, statements such as “I think Icould be fair” are not necessarily construed as equivocation. Miller

v. Francis , 269 F.3d at 618. In Miller v. Francis , we stated, “venire members c ommonly couch the ir resp ons es to questions concerning bias in terms of ‘I think.’ Therefore, the
use of such langua ge c annot necessarily be construed as equivocation.” Id. For a juror to say , “I think I could be fair, but. . . ,” wit

hout more , howeve

r, must be

construe d as a statement of

equivocation. It is essential that a juror “swe ar that [ she] could set aside any opinion [she] might hold an d decide the case on the evidence.” Patton , 467 U.S. at 1036. If a juror does not

make such an unequivocal statement, then
a trial cou rt canno t believe

the prote stati on of im pa rt ia li ty. See id. Accordingly , when th e trial court is ultimately left with a statement of partiality, a s in this case, that is coupled with a lack of

juror re habilit at ion or juror assurances of impartia lity , we are

left to fi nd actua l bias.

When a trial court is confr onted with

a biased juror, a s in this case, the ju dge must, either sua sponte or upon a motion, dismiss the prospective juror for ca use. Frazier v. United States , 335 U.S. 497, 511 (1948). Because the tr ial court 16 Miller v. Webb No. 02-5907

failed to respond to Juror Bell’s statement of bias on voir dire , we find that, as in Hughes , counsel’s failure to respond in turn
was objectiv ely

unreasonable pur

suant to Strickland . “When
a venireperson expre ssly ad mits bias on voir dire , without a court response or follow-up, for

counsel not to respond [to the statement of pa rt ia li ty] in turn is simply a failure ‘to exerc ise the customary skill and diligenc e that a reasonably competent attorney would provide.’” Hughes , 258 F.3d at 462 (quoting Johnson v. Armontrout , 961 F.2d 748, 754 (8th Cir. 1992)).

The Kent ucky Co urt of Appeals held that Miller was not denied effective assistanc e of coun sel beca use Miller failed to show that his trial counsel’s decision to lea v e Juror Bell on the jury was not the re sult of reasonable professional judgment. Miller’s trial counsel, Skaggs, stated that he kept Juror Bell on the jury

because the case wasabout “hard core drugaddicts” and

Juror Bell knew Linda Cline and “[a]ny one who knew Linda Cline, knew that she could not be trusted.” The Kentuck

y Court of Appeals noted that any error in trial strat egy regardi ng t he se lection o f jurors d oes not g eneral ly rise to the level of ineffe ctive as sistance

of counse l. Contrary to the Kentucky Court of Appe als’s decision, the decisionwhether

to seat a

biased ju

ror cannot be a discretionary

or strategic decision. Id. at 463 (c it ing Unit ed States v. Martinez -Salazar , 528 U.S. 304, 316 (2000) (holding that the seat ing of a biase d jur or who should have been dismissedfor cause requires reversal of the conviction)). As
we previous ly held, ther

e is no sound

trial stra tegy that coul d support what is essentially a wa iver of a defendan

t’ s basic SixthAmendmen

t right to tr ia l b y an impartial jury. Id. If, however, there c ould be suc h a strate gic dec ision, this c ase does not present

such a situation because Skaggs’s a rticulated trial strategy

was ob jec tively unreasona

ble. First, Skaggs’s reasoningthat

“anyone who knew Linda Cline, knew that she could not be tru sted” wa s c omple tely baseles s. Juror Be ll
never gave counsel nor

the court an indication

that she did not trust Linda Cline. On t

he contr ary , Juror Be ll believe d th a t Linda Cline “w anted t o do better” and Juror Bell hadNo. 02-5907 Miller v. Webb 17

“sympathy

for her in this case, wit h he r be in g th e vi cti m. ” It
was clear that Juror Bell was not an individual who did not trust Linda Cline. Rather, Juror Bell wasinvolved i nministry with Linda Cline and believed in her. Second, Skaggs’s reasoning that this case was about

“hard
core drug a

ddicts” a nd its depe

ndent impli cat ion that Juror Bell knew about this subject was also ba seles s. Alt hough Juror B ell was a minister at the Warren County Jail, s h e specific ally

stated that she “never

ask[ed] any of them about why they’re in for or any of

their business. [Her ] w hole
concer nwas the word of God. [She] never talk[ed] to the m about their cases or any

of thei r pe rso nal bus in ess .” In addition, durin g voir dire , Skaggs never questioned Juror Bell about her knowledge o f “hard core dr ug addi c ts. ” Skaggs made an unreasonable assumption t hat Juror Bell had such knowl edge considering that Juror Bell stated that she ne ver discussed persona l busi nes s w it h t he la di es . A cc or di ng ly, Skaggs’s tri al s tra teg y was obj ect iv ely u nre aso nab le. It was illogical to k eep Juror Bell on the jury w hen she was partial to Linda Cline, the Government’s ke

y witness and victi

m. No
co mp et en t a tt or ne y wo ul d h av e e mp lo yed su ch a s tr at eg y.
The “‘presence of a biased juror c annot be harm l ess; the
er ro r requires a new trial without a showing of actual prejudice.’” Hughes , 258 F.3d at 453 (quot ing United States

v. Gonzalez , 214 F.3d 1109, 1111 (9th Cir. 200 0) (cita tions
o mit ted)). Therefore, because Miller’s tria l counsel impaneled

a biased juror, “prejudice under Stric kla nd is presumed, and a new trial is required.” Id.

This Court has decided two other notable cases regarding impartial jurors. In Wolfe v. Brigano , 232 F.3d 499 (6th Cir. 2000), the trial court denied the defe ns e’s cha llenge s for ca

use of four prospective jurors in a murder trial. The first two prospective jurors were close friends of the victim’s p arents. One of these

jurors did not think he could be fair and impartia l. The other stated that she could be fair and impartia l, but conceded that

it was “hard to say

” whether her 18 Miller v. Webb No. 02-5907

2 An affirmative stateme nt of imp artiality is req uired to ensu re that a juror is unbiased, but

such a stat ement alone is not t he determining fact or. A t rial court must

stil l determine, f

rom the context, whether s uch a statem ent is be lievab le. Patton , 467 U.S. at 1036. relation ship with the victim’s pa r ents would influence her. Id. at 502. The third prospective juror admitted she read and
sawnews accounts of the crime and “expressed doubt a s to whether she could put aside those re ports and decide t he case solely onthe evidence presented at trial.” Id. at 502-03. The fou rth prospective juror “doubted he would require the prosecution

to prove i ts case bey

ond a reasonable doubt.” Id. at 503. This Co

urt held that “[i]n

the absence of an affirmative and belie

vable sta tement tha

t these jur

ors could set aside the ir opinion s and decide the case on the evidence and in accor dance w ith the law , the fai l u re to dismiss them
wa s unreas onable.” Id. (citi ng Patton , 467 U.S. at 1036). This Court fur

ther stat ed that “ it appea

rs that the trial j ud ge based his findings of impartiality e xclusively upon each juror’s tentative statements that they would try to decide this
case o n the evid

ence pr esented at trial. Such state

ments, withoutmore, are insufficient. . . . The Sixth Amendment gu arantees Wolfe the right to a jury that will hear hi s cas e im pa rt ia ll y, not one that tentative ly pr omises to try.” Id

. Therefore, this Court granted habeas relief b ecause the denial of a challenge for cause

violated the pet iti oner’s Si xth Am en dm en t r ig ht to an im pa rt ia l j ur y.
As in Wolfe , when Juror Bell stated, “I think I can be fair. But . . .[,]” there was an absence of an affirma tive and believa ble statement that Juror Bel l could set aside her opinion and decide the case on t he ev idence a

nd in accordancewith the law. 2 Such state ments of p arti ality , without more, are insufficient. See id.

Another case in this Circuit that

involved juror impa

rtiality is Miller v. Francis , 269 F.3d 609 (6th Cir. 2001). In Miller

v. Francis , this Court

decline d to gra

nt h a beas relief for anNo. 02-5907 Miller v. Webb 19

ineffective assistanc e of coun sel cla im. The defendant was charged and convicted for

grosssexual imposition and rape of
a minor under the age of

thirt een. Du ring voir dire , one juror, Patricia Furrow (“Furrow”) , stated that she had knowledge of the case, but could not

discuss the case

in open co

urt beca use of privacy c oncerns. During an in camer a examin a tion, F urrowindicate d that she was a we lfare c asewor

ker to th e victim’s mother. Furrow stated that she knewwhat happened, butthe victim’s mother did no t use any name s and did not discuss the deta

il s o f the rape or the criminal investigation. Furr o w ex pr es se d c on ce rn ab ou t p ar ti ci pa ti ng on th e j ur y. She thou gh t it would be uncomfortable for both herself and the victim ’s mothe r. In addition, she was worrie d that the victim’s mother would try to telephone her d

uring the trial to talk about the case. When the prosecutor asked her whether she could be fair, she replied, “I –it’s tough. I think I

could be fair.” Id. at 612. When defense counsel later asked whether her professional relationship with the victim’s mother lent
more credence to the charg es against his client, Furrow answered, “No, I don’t really think that I would be biased. Just uncomfortable.” Id. Furrow stated that if a problem
arose as a result of her participation as a juror, the victim’s mother could be r

eassig n ed to a ne

w caseworker. D efense counsel declined to cha llenge Furrow for ca use or use a p ere mptory

challenge to remove the potential juror. The defenda nt was the

n convict ed for the charged crime s.
The defendant, in his habeas petition, argued th at his defense counsel was ineffective for failing to challenge a biased juror an d, there fore, th e Ohio Court of A ppeals
unreasonably

determined that he was notdenied the effective assistance of

counsel. This Court, however, decline d to grant h abeas relief, holding t

hat the de fendant

failed to meet h i s burden of showing actual bias. This Court stated:

Becau se Miller’s claim of ineffective assistance of counsel is foun ded upon a claim tha

t counsel failed to strike a biased juror, Miller must show that the juror was actually biased against him. Hughes , 258 F.3d at 4 58. 20 Miller v. Webb No. 02-5907

Miller has failed to meet his burden. Furrow’s prior knowl edge of the case was no t extensive or detailed. Furrow indi cated d uring v oi r dire that [the victim’s mother] told her over the phone th at her so n had been raped, but did not d

isclose the name

of the suspect or any detailsof the ev ent or the investig ati o n. Furrow agreed that she woul d not necessarily assume that what [the victim’s mother] tol d her wa s true an d that she

could base her jud gment on

the evide

nce pre sented a

t trial. Jurors need not

be totally ignora

nt of the facts and issues involved in the case. [Irvin , 366 U.S. at 722.]
Miller v. Franc is , 269 F.3d at 616. In deny ing habeas relief, this Cour t distinguished Miller v. Francis from Hughes by stating that, unlike Hughes , the trial court held a separate i n camera examination of the juror when she indicated she had
some prior knowle dge of the case. During the in camer a examination , the trial

court, the prosec

utor, and defense
c ounsel questioned her regarding her knowledge, her relation ship with

the victim’s mother, and

whether she could be fair and impartial. Unlike the j uror in Hughes , “Furrow
never stated tha

t she coul d not be fa

ir . While Furrow expressed some discomfort about sitting on the jury, she consiste ntly answer ed that she could be

fair .” Id. at 617. Therefore, the Court was “not constrained to make a finding of actual bias based upon an undisputed statement of a juror that she could not be fair in deciding the case.” Id.

Unlike Miller v. Francis , where there was no statement of pa rt ia li ty, Juror

Bell specific ally

stated sh e would be

“partia l” to Linda Cline. Juror Bell stated that she had “sy mpathy for her” and believed she was the “victim.” Juror Bell never unequivo cally

stated tha

t she coul d

be fair. On

th e c on tr ar y, Jur or Bell g ave a qualified s tatement of impart

iality

. Moreover, unlike Miller v. Fr ancis , where there was sufficient questioning regarding the relationship between the juror and the vic tim’ s mo ther, w

hen Juror B ell stated, “I believe I could be fair a bout it all. Bu

t I do have some feeli ngs about her[,]” neither the trial cou rt nor counselNo. 02-5907 Miller v. Webb 21

inquired further regarding

whether she co uld be fair and i mpartial

. Without proper follow-up questions direct e d toward rehabil itating t

he juror or obtaini ng an assurance of im pa rt ia li ty, we are left

with a situation as in Hughes in which
we found actual bias. Although defense counsel aske d Juror Bell about the women’s section at the Warren County Jail, he
never inquired about whe

ther she could be fair and impartial despite her “fe elings. ” He nev er inquir ed whether she c ould determine the case based on the evidence and the trial court’s instruct ions. Consequently, the prese nt case i s distingu ishable f rom Miller v. Francis

. III. CONCL USION

Becau se we fin d counsel’s performance to have bee n objectiv ely

unreasonable an d we fin d that impaneling a biased juror prejud iced M iller, the Kentucky Court of Appeals’s determination

that Mil ler ’s trial counsel’s performance was notconstitutionally deficient was an unreas onable application of S trickl and , which is clearly established federal law. We, therefore, REVERSE the district cour t’ s order deny

ing Miller’s 28 U.S.C . § 225 4 petition, and REMAND the case with instructi ons that th e district court or der Petiti on er released from custody unless the

State commences a new trial within 180 d

ay s. 22 Miller v. Webb No. 02-5907

______________ DISSENT

______________ JU LIASMITH

GIB BONS, Cir

cuit Judge , diss e ntin g. Bell’s statements during voir dire do not demonstrate that she
was actually

biased a gainst M iller, an

d the majority

errs in concluding otherwise. Therefore , I respectfully dissent.

As an initial

matter, s ome clar

ification is in or der with respect to the posture of Miller’s ineffectiveassistanc e claim. No state co

urt addr essed the issue of w

hether M i l ler’s counsel’s performance prejudiced hi m. Co ns eq ue nt ly, we are notconstrained under AEDPA by any state cour

t ruling on this matter, and we confron t it de novo

. See Wiggi

ns v. Smith , 123 S.Ct. 2527, 2542 (2003); Maples v . Stegall, 340 F.3d 433, 437 (6th Cir. 2003). More specifically , no state court de term ined

that Bell either was or was not actually biased againstMiller, which is a question of fact. Fi elds v. Wood ford, 309 F.3d 1095, 1103 (9th C ir . 2002); see also Patton v. Yount , 467 U.S. 1025, 1036 (1984) (characterizing the ques tion of a particular juror’s impartiality as “one of historical fact”). And while the district court found that Bell
wa s not actua

lly b iased against Mille r, it rea ched this conclusion solely on

the basis of

transcripts from state court procee dings; hence, we review the conclusion de novo rather thanfor clear error. Miller v. Straub , 299 F.3d 570, 579 (6th Cir. 2002).

A defendant may

prove that his counsel’s fai lu re to strike
a juror prejudiced him only by showing “that the juror was actually biased against him .” Miller v. Francis , 269 F.3d 609, 616 ( 6th Cir. 200 1) (emphasis adde d); see also Hughes

v. United States , 258 F.3 d 453, 4 58 (6th Cir. 2001) (“Petitioner’s ‘claim of

ineffe ctive as s istanc e of coun sel is grounded in the claim that couns e l failed to strike a biased juror. To mainta

in a claim that a bia sed juror

prejudic ed him, however, [Petit ion er] must show that the juror wa s actual lyNo. 02-5907 Miller v. Webb 23

biased against him .’”) (emphasis added an d alterat ion in origina l) (quot ing Goeders v. Hundley , 59 F.3d73, 75 (8th Cir. 1995)). “Actua

l bias is ‘b ias in fac

t’ – the existence of a stateof mind thatleads to an inference that the person will not act with entir

e imparti ali ty.” Hughes , 258 F.3d at 463 (quotationo mitt ed); see also Murphy v. Florida , 421 U.S. 794, 800 (1975) (explai ning thata juror is not impart

ial if there actually exists “an opinion in the mind of the juror as will raisethe presumption of partiality”) ( quotation omitted). It is distinct from implied bias, which has been des cri bed as arising only in “extrem e situations where the relati onship between a prospective juror and

some aspect

of the litigation is such that it is highly unlikely that the average person c ould
rem ain impartia l in his deliberatio ns u nder th e circumstances.” Person v. Miller , 854 F.2d 656, 664 (4th Cir. 1988); see also United States v. Wood , 299 U .S. 12 3, 134 (1936) (defining implied bias as “a bia s attribut able in law to the prospective juror regardle ss of actual partiality” ).

A juror isimpartial if she can disregard her preconceptions “and render a verdict based on the evid ence pr

esented in court.’” United States v. A ngel , 355 F.3d 462, 470 (6th Cir. 2004) (quot ing Irvin v. Dowd , 366 U.S. 717, 723 (1961)). A juror’s express a ssuranc e that she can do so , alt

ho ugh not
necessa rily conclusive, cf. Wol

fe v. Brigano , 232 F.3d 499, 502 (6th Cir. 2000) (“A

court’s refusa l to excuse

a juror w ill notbe upheld

simply because the cour t ultimatel

y elicits from the prospecti ve juror a promise that he will be fair and impartial.”) (quota

t ion omitted

), indica tes that she is impartial. Se e Angel , 355 F.3d at 470; Miller , 269 F.3d at 616; Hughes , 258 F.3d at 460 (statingthat juror assurances of impartia lity may be re lied upon “in deciding whether a defendant has sati sfiedhis burden of proving actual prejudice”). If a

juror makes such an assurance, the defendant must demon strate that it is not to be credited since he bears the burden

of proof on actual bias. See Murphy , 421 U.S. at 800 (“[T]he juror’s assurances that he is equal to [the] task [of decidinga case impartially ] cannot be di sposi tive of the accused’s rights, and it rem ai ns open to t he defe ndant to 24 Miller v. Webb No. 02-5907

1 Ap pare ntly, in stati ng that she could be f air i n determi ning “ whether she’s guil ty, ” Bell momentar ily mist ook Cline as being t he def end ant in the cas e. de monstrate

the actual existence of such an opinion in th e mindof the jur

or as will raise the presumption

of partiality.”) (quotationomitted); see also Miller , 269 F.3d at 616-17 (noting that it is a defendant’s burden to sho w actual b ias to succeed on an inef

fectiv e ass istance of counsel claim based
onfailure to strike a biased juror an d f inding that the defendant did not meet this burden because the juror at issue expressly indicated that she could dec ide the c ase impa rtially and because there was no re ason given to doub t this assurance). A juror’ s clo se an d ongoing relationship with a person involved

inthe case may

undermine the reliability of her assurance of impart i ality. Wolfe , 232 F.3d at 502; see also Miller , 269 F.3d at 616-17 (crediting a juror’s a ssurance of impartiality despite her ac q uaintance with the victim’s mother because “there is no indic ation from the record that they shared a close personal relationship”). B ut merely being acquainted

with someone involved in the case does not. See McQueen v. Scroggy , 99 F .3d 130 2, 1320 (6th Cir. 1996) (“There is no const

itutional prohibition

againstjurors sim

ply knowing the parties involved .

. . . The Constitution does not require ignorant or uninformed jurors; it requires impartial jurors.”).

Miller does not succeed i n demonstrating that Bell was actually biased against him. Bell made nu merou s express assurances durin g voir dire that she c o uld decid e Miller’ s case fa ir ly. Sp ec if

ic al ly, in response to the trial court’s question as to whether she could be fair and impartial despite he r familiar ity with and f

eeli ngs for Cline, Bell replied, “I think Icould be fair. I think

I could be fair. . . . I

believe I could be fair and whether she’s guilty or not guilty. Ibelieve

I co uld be fair abo ut it all. ” 1 These statements are not so equivocal inand of themselves as to be untenable. See Miller , 269 F.3d at 618 (crediting statement s b y juror that “I think I could beNo. 02-5907 Miller v. Webb 25

fair” and “I

don’t rea ll y think that I would be biased”). Indeed, “venire members commonly couch the ir responses to questions concerning bias in terms of ‘I think’” such that “the
use of such la

nguag e canno t necess arily be construed as equivocation.” Id

. Furthermore, Miller provide s no r eason to doubt the validity of Bell’ s ass ur ances. As evidenced by the fact that Bell had not se en Cline in

at l east a ye ar at the time of voir dire , the two did not share a close and ongoing r elationship. Nor is there any r

eason to believ e tha t Bell’s sympathy for Cl ine was so strong as to undermine the reliability of he r assurance that she c ould eval uate the c ase fairly

and im pa rt ia ll y. Expressions of sympathy for a victim, without more, do not demonstrate actual bias where t he juror has assured the cou rt that she may dec ide the case fairly . For example, in Ainsworth v

. Cald eron , 138 F.3d 7 87, 796 (9 th Cir. 1998) , a jur or ind icate d duri ng voir d i re that “she was
unsure w h ether she could disregard the informa tion she had gathered from news sources and

decide the case based only on the evidence presented at trial.” The defenda nt sough t a change of venue , whic h was denie d. Id . at 795. On habeas review, he claime d that this d enial wa s errone ous beca

use the juror in question was actually

prejudic ed aga

inst him. Id. at 795-96. The court rejected this assertion, noting that there
was “no in dication that [the juror] had the opinion that [the defe nda nt] was the murderer, and she repea tedly stated she could set aside her feelings of s ympa thy for [the vi ctim] in order t o jud ge the case fairly .” Id . at 796; see also Celestine

v. Blackbu rn , 750 F.2d 353, 360 (5th Cir. 1984) (holding that statecourt did not err in refusing to dismiss for cause a juror who knew the gran ddaught er of the victim because, even thou gh her tes timony

at voir dire

indicated her emotions might affect her abi lity

to delibe rate, “ she consi stently

stated that her feeling s would not

so influe nce her as to prejudice her against[the de fendant]” and “[s]he had not discussed the murder with the gran ddaugh ter, a nd she repeatedly denied bias”). As in Ainsworth , Bell repeatedly stated that

she could decide the case

fairly despite her sympathy

for Cline, and she 26 Miller v. Webb No. 02-5907

never stated that she believed Miller was the murderer. Also,
as in Celestine , there is no i ndicatio n that she discussed the crime at issue with Cline.

Insum, Miller fa

ils to meet his bu

rden of showing t

hat Bell possessed actual b ias aga

inst h im, an d, as a re sult, he a lso fails to meet

his burden of

showing that his counsel’s failure to strike Bell was pr ejudicial. Thus, we should affirm the districtcourt’s denial of Miller’s ineffective assistance claim and of his petition fo r a wr it of ha be as co rp us mo re ge ne ra ll y.
Th e ma jo rit y, of cou rse , re ach es a con tra ry co ncl usi on. It finds that, although B ell state d “I th i nk I could be fair,” she never made an unequivocal statement of impartia lity and, in fact, made express statem ents of partiality. Ther e are numerous problems

w ith this conc lusion and the manne

r in whichthe majority rea

ches it . First, Bell said much more than “I think I could be f

air”:

I think I could be fair. I think I could befair. I
m inistered

in the women’s section for about four y ears

. [Cline] was kind of in and out, but she s eeme d like she
wa nted to do better, but I believe I could be f

air an d

w he ther she’s guilty or

not guilty. I

believe I could be fair ab out it all.

Far from say ing so in an iso lated statement, Bell reiterated again and ag ain that –

despite her famil iarity

with Cline – she could decide Miller’s case fairly

. Ad di ti on al ly, by describing them as statements of pa

rtiality, the m a jority ascribes sig

nificance to certain of Bell’s statemen ts that the words do not justify. For example, the majority latches on to Bell’s initial comments that “I feel like Iwould kind of be partial to Linda Cline” and

“I kind of have sympathy for her in this cas e, with he

r being the vic ti m.” First of all, the se “kind o f” state ments are har

dly unequivo cal. Second , as discu ssed, expr essions of sym pathy for a victim do not nece ssarily

demonstrate partiality. Third, the major ityNo. 02-5907 Miller v. Webb 27

injectslegal content into Bell’s use of the term “pa rtial,” constru ing it to mean that she cannot decide the case on t h e evidence before her and tha t s he is admit

ting bia s again st Miller. However, her full testimony indicates that Bell uses “partia l” to indicate sympathy

, or having a liking or fondne ss for, O xford English Dictionary (2d ed. 1989), Cline. Moreover, imputing

import to B ell’s use

of the word “partia l” and to her init

ial indica

tion of sy

mp at hy for Cline conveniently ignore s the fact that, af ter she ma

de these statemen ts, the trial court, apparently concerned

about Bell’s potential partiality, imme diately questioned her about her ability to serve o n the ju

ry impartia lly, to which B ell responded

rep eatedly that she c ould be fair in deciding Miller’s case.

Ul ti ma te ly, howeve r, the linchpin of the majority’s conclusion that Bell unequivocally indicated partiality is the fact that, after stating for the last time that she could decide Miller’s case fairly, she said, “Bu t I do have feelings about [Cline].” While this remark may constitute a statement of partiali ty in the sense that it evidences empa th y for Cline, Bell is not asserting that she would not be abl e to deci de fair

ly Miller’s guilt or

innocenc e. Rathe

r, the sta tement wa s simply
a reaff irmation o f Bell’ s earlie

r stateme nt that “she kin d of [had] s ympathy

for Cline, with her being the victim,” a feelingshe repeatedly

explained

would not a

ffect h er abilit

y to d ecide Mi l ler’s case fairly . At no point did Bell ever indicate that her concern fo rCline would make her more likely to acce pt Cli ne’s tes timony as true, would pre dispose her to credit evidence offere d against Miller, would lead her to discount testimony offered on Miller’ s behalf, or would in any way incline he

r to believe th at Miller was guilty. T he only express sta

tements w e have f

rom B ell regarding her ability to decide the

case are: “I

think I could be fair. I

think Icould be f

air. . . . I believe I co uld be fair and whether she’s guilt y or not guilty. I

believe I could be fa

ir about it all.” 28 Miller v. Webb No. 02-5907

2 At most, t

he majorit

y could conc lude – th ough I woul d sti ll di sagree

– that B ell’s statem ents of feeli ngs toward Cline undermine her a sser ti on of impa rtiality, see W olfe , 232 F. 3d at 502 (“ [T ]he sec ond juror ’s assessment that she could b e fair and impa rtial [is] unt enabl e [] in l igh t of both the close relati onship between the juror and the victim’ s family , and the fact t hat she knew the fami ly ’s theor y of the victim ’s death .”), but to charact erize th em as stateme nts of pa rtiality in and of them selves is unfou nde d. Becau se Miller has not

articula ted a val id reason to disregard these statements, they de serve our credence. 2

Inreaching

its conclusion, the majority analogizes this case to Hughes . The analogy is inapt. In Hughes , the juror unequivo cally

state d duri ng voir dire , “I don’t thin

k I c ould be fair.” 258 F.3d at 456. In response, the trial court asked the juror, “You don’t think you could be fair?”, to whichthe juror starkly replied, “

No.” Id . Most impo r tantly, the juror
never individua

lly st a ted or suggested whatsoever that she could be impar tial, either initia

ll y or through rehabilitation. Id. a t 460 (“[Th e juror] ne ver said that she would be ab le to render a fair and impa rtial verdict.”). Lef t only with a statement in the record that she could not be fair, t his court
was able to presume the juror was partial and actually

biased againstthe defendant. Id .; see also M ille r , 269 F.3d at 617 (“Bec ause the only evi dence relevan t to the issu e of bias [in Hughes ] was the juror’s statement that she did not think she
co uld be fair, we had no choice but to find actual bias.” ) (emphasis added).

The case sub judice could not be more diff

erent. H ere, B ell
never stated that she did not think she could be fair. Quite the
co nt ra ry, she stated that

she believed she could

be fair “about it all.” A nd she sai d

so again and again. In a

n attempt t

o fit this casewithin the bounds of Hughes , the majority posits that it is “u lt im at el y le ft wi th a s ta te me nt of pa rt ia li ty” wit hout “juror as su ra nc es of

im pa rt ia li ty, ” w he re as , i n r ea li ty, we are left with numerous statement s of i mpartiality without any express assertion from Bell that she could not decid e the ca seNo. 02-5907 Miller v. Webb 29

fa ir ly. In other

words, what enabled the court in Hughes to presume partiali ty – a blatan t stateme nt o f partiality and absolute ly

no contrary

statement from the juror

that he c ould be impar tial – is gl a ringly absent he

re. Thus , to reac

h its conclusion, the majority contorts the holding of Hughes , whichstands for

the proposition that a juror may be presumed to be actu ally bias ed aga inst a defendant when he makes no express statements of

impartia lity but instea

d expressl y states that he d oes n ot bel ieve h e can be fair i n dete rmini ng a defendant’s innocence or guilt and n o effort is made to rehabil itate that juror

specific ally . The cou

rt unjustif

iab ly extends this holding

to allow f

or a pre sumption of

partiali ty
even when the juror has made expres s statements of impartiality. The majority also ana

logizes this case to Wolfe . In Wolfe , the court fo

und that the trial c ourt err ed in fai l in g to excus e four jurors for cause. 232 F.3d at 502-03. However, each of thesejurors expressly

doubted h

is or her ability to dec ide the
casefairly. One juror “d id not think he could be a fair and im par tial juror.” Id . at 502. The second juror stated it was “hard to say” whethe

r h er relationship with the victim’s parents wo ul d i mp ac t h er ab il it y to de li be ra te fa ir ly. Id . The third juror “e xpressed d

oubt as to w

hether s he could putaside [news] reports

and dec ide the c ase sole ly o n th e evidence presented at trial.” Id . at 502-03. Finally, the f ourth juror “doubted he would r

equire t he prose cution to prove its c as e beyond a reasonable doubt.” Id . at 503. When as ked about her pa rt ia li ty, Bell

expresse d no such d

oubt abou t her abi lity to decide Miller’s case fairly

. Wolfe is simply inapposite.

One final dif

ficulty I ha ve with th e maj ority ’s holding is that it reduces the inquiry into a jur or’s actual bias to a question of chronology . If a juror swears repeatedly

that she
can be fai r in deciding a defendant’s innocence or guilt but thenindicates in her final statement that she has some degree of sympathy

for the victim, the

majority would hav e it

that a court can only

conclude

that th e juror

is actually biased againstthe defend ant. I simp ly c annot subs cribe to this 30 Miller v. Webb No. 02-5907

conclusion. In assessing whethe r a juror was actually

biased againsta defend ant, we should consider the totality of her statemen ts, see High tower v. S

chofield , 365 F.3d 1008, 1041 (11th Cir. 2004) ; se e also Miller , 269 F.3d at 618 (considering

all the statements made by the juror durin g voir dire ); cf. Pruet

t v. Norris , 153 F.3d

579, 587 (8th Cir. 1998) (assessingactual prejudice under t he tot ality of the circ umsta nces); Stafford v

. Saffle , 34 F.3d 1 557, 1567 ( 10th Cir. 1994) (“We review actual prejudice by examining the totality of the circumst

ances.” ), not mer

ely the statement that comes last-in-time.

I do no t believe that the totality of B ell’s statemen t s demon st rates that she was actually biased against Miller. Hence, I als o believe that Miller’s counsel’s performance was notso objectively unrea sonab l e as to be deficient under Strickland

v. Washington , 466 U.S. 668 (1984)

. Cf. Miller , 269 F.3d at 618-19 (“[T]he trial court cann ot be faulted for notdisqualifying for

cause a juror who consistently says that she thinks she can b e fa ir.”). In conclusion, I would affirm the district court’s denial of Miller’s ineffective assistance of counsel clai m and, ultimately, its denial of his petition for a writ of habeas corpus. Since the majority doe s otherwise, I respectfully

dissent.