1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0323P (6th Cir.)

File Name: 04a0323p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

KENNY ROY MILLER,

Petitioner-Appellant,

v.

PATTI WEBB, Warden,

Respondent-Appellee.

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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 

Before: KEITH, CLAY, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: 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. KEITH, Circuit Judge. Petitioner-Appellant

Kenny Roy Miller (“Miller”) is currently serving a life

sentence after a state conviction for intentional murder,

criminal attempt to commit murder, first-degree burglary, and

being a first-degree persistent felony offender. Miller appeals

from the district court’s denial of his petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. In his habeas

petition, Miller alleges that his trial counsel was ineffective

for failing to challenge a biased juror during voir dire. Miller

argues that the Kentucky Court of Appeals denial of his

ineffective assistance of counsel claim was contrary to, and an

unreasonable application of, clearly established federal law.

For the reasons set forth below, we REVERSE the district

court’s order and REMAND for proceedings consistent with

this opinion.

I. BACKGROUND

On November 14, 1990, a grand jury in Warren County,

Kentucky indicted Miller for intentional murder, criminal

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

first-degree persistent felony offender. The indictment

charged Miller for shooting and killing Leon Gray and

shooting and seriously wounding Linda Cline in their bed at

an apartment in Bowling Green, Kentucky.

On August 17, 1992, a jury trial commenced against Miller

in the Warren Circuit Court. During voir dire, one

prospective juror, Yvonne Bell (“Juror Bell”), in response to

the prosecutor’s voir dire question, stated that she was a

minister and that she had known Linda Cline for two or three

years through Bible study. Linda Cline, the woman who was

shot and seriously wounded, was one of the prosecution’s key

witnesses and the only eyewitness to the crime. At this point
No. 02-5907 Miller v. Webb 3

of the voir dire, Miller’s trial counsel, William Skaggs

(“Skaggs”), did not ask Juror Bell any follow-up questions.

Towards the end of the voir dire, however, the trial court

asked the members of the jury panel if they wanted to reveal

further information. The following dialogue took place:

Judge: Okay, one final thing. . . . [D]uring the

course of this proceeding there may have

been something that was asked that you let

go by. Something that you thought you

weren’t sure but now its bothering you.

Anybody have anything they 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 feel would in any way would

cause you any difficulty in sitting as a juror

in this case. Yes, ma’am, come on up.

[bench conference]

Ms. Bell: I’m Yvonne Bell.

Judge: Yes, Ms. Bell.

Ms. Bell: I feel like I would kind of be partial to

Linda Cline because, when she was in my

classes (inaudible) she seemed like she

really wanted to do better and I kind of

have sympathy for her in this case, with her

being the victim.

Judge: Do you believe the fact that you had her,

you indicated, in Bible studies, and will

appear as a witness in this case and is

alleged to be one of the victims in this

case, do you believe that would influence

your thinking here and cause you to be

more sympathetic for her side as such as

you couldn’t sit and be fair and impartial?

4 Miller v. Webb No. 02-5907

Ms. Bell: I think I could be fair. I think I could be

fair. I ministered in the women’s section

for about four years. She was kind of in

and out, but she seemed like she wanted to

do better, but I believe I could be fair and

whether she’s guilty or not guilty I believe

I could be fair about it all. But I do have

some feelings about her.

Judge: Okay, ma’am. I’m going to . . . go back

and take your seat, I’m going to hear from

the lawyers.

Mr. Skaggs: Judge, may I ask her a question?

Judge: Yes, you may.

Mr. Skaggs: The women’s section. The women’s

section of what?

Ms. Bell: The Warren County Jail.

Mr. Skaggs: Okay, and how many years ago was this, or

was it recent?

Ms. Bell: From ’80 . . . about four years, up until last

year.

Mr. Skaggs: Okay, and so you have seen her since this

happened?

Ms. Bell: No, I haven’t[.] I haven’t been coming to

the (inaudible) for about a year now.

Mr. Skaggs: Well, this happened 18 months ago.

Ms. Bell: Well, I don’t know. I don’t remember. I

never ask any of them about why they’re in

for or any of their business. My whole

concern was the word of God. I never talk
No. 02-5907 Miller v. Webb 5

to them about their cases or any of their

personal business.

Mr. Skaggs: I see. That’s all.

Judge: Okay, you may step down. Just take your

seat back. [Juror departs.] Do either of

you want me to consider striking 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. Skaggs: I have no motion.

In addition to not challenging Juror Bell for cause, Miller’s

trial counsel did not use a peremptory challenge to remove the

prospective juror. Therefore, Juror Bell remained on the jury.

On August 19, 1992, the jury, which included Juror Bell,

convicted Miller on all charges of the indictment. On

September 2, 1992, the trial court sentenced Miller to life and

to two twenty-year terms of imprisonment, to run

consecutively. Miller filed a direct appeal to the Kentucky

Supreme Court concerning the judgment of conviction and

sentence. On September 29, 1994, the Kentucky Supreme

Court affirmed the conviction, but remanded the case for resentencing and directed the trial court to run Miller’s life

sentence concurrently with his forty-year sentence. On

November 15, 1994, the trial court re-sentenced Miller in

accordance with the Kentucky Supreme Court’s order.

On October 26, 1995, with new court-appointed counsel,

Miller filed a motion to vacate the judgment based upon

ineffective assistance of counsel. Among his allegations,

Miller argued that his trial counsel was ineffective 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 Court heard

testimony from Miller and his trial counsel, Skaggs. Skaggs

testified that he did not seek to exclude Juror Bell from the

jury because:

Most people do not understand the world of extreme hard

core drug addicts and . . . this case [involved] hard core

drug addicts . . . . It is a different reality. Regular jurors

do not understand that hard core drug addicts will lie

. . . [.] They will only tell the truth if they have no other

opportunity. And, since this lady knew Linda Cline,

knew she was completely unworthy of belief, I left her

up. . . . Anyone who knew Linda Cline, knew that she

could not be trusted, that was my thinking at the time.

On February 2, 1999, the Warren Circuit Court denied

Miller’s motion. Miller appealed to the Kentucky Court of

Appeals. On January 19, 2001, the Kentucky Court of

Appeals affirmed theWarrenCircuit Court’s decision holding

that Miller failed to rebut the presumption that trial counsel’s

decision to not exclude the juror was sound trial strategy and,

therefore, not deficient performance pursuant to Strickland v.

Washington, 466 U.S. 668 (1984). Miller filed a motion for

discretionary review with the Kentucky Supreme Court. On

October 17, 2001, the Kentucky Supreme Court denied

Miller’s motion.

After exhausting his remedies in the Kentucky state courts,

on November 2, 2001, Miller filed a petition for a writ of

habeas corpus, pro se, pursuant to 28 U.S.C. § 2254 in the

United States District Court for the Western District of

Kentucky. Miller raised five claims of ineffective assistance

of counsel. Miller argued that: (1) his attorney failed to seek

to exclude Juror Bell, who knew and admired the State’s

primary witness; (2) his attorney failed to investigate and

subpoena witnesses to directly contradict the State’s chief

witness; (3) his attorney attempted to establish an alibi

defense, which he knew he could not support by credible

witnesses; (4) his attorney failed to move for a mistrial after
No. 02-5907 Miller v. Webb 7

a juror had prejudicial exposure to a spectator at trial; and

(5) the cumulative effect of his counsel’s errors constituted

ineffective assistance.

On January 7, 2002, the district court referred the matter to

a magistrate judge for a report and recommendation. On May

28, 2002, the magistrate judge entered findings of fact and

conclusions of law, recommending that the district court deny

the petition on the merits and issue a certificate of

appealability on the first issue only, because reasonable jurists

could find the assessment of the constitutional claim

debatable or wrong. On June 10, 2002, Miller filed

objections to the findings of fact. On June 19, 2002, the

district court entered an order adopting the magistrate judge’s

report and recommendation. In denying the habeas petition

on the first issue, the district court held that Miller failed to

overcome the presumption that trial counsel’s reason for

allowing Juror Bell to remain on the jury was sound trial

strategy. In addition, the district court held that Miller failed

to show that Juror Bell was actually biased against him.

Therefore, the district court ruled that Miller failed to show

that the decision of the Kentucky Court of Appeals, which

denied his ineffective assistance of counsel claim, was

contrary to, or an unreasonable application of, clearly

established federal law.

On July 17, 2002, Miller filed a notice of appeal for the

district court’s denial of his habeas petition based on his first

claim of ineffective assistance of counsel, which the district

court certified. On July 24, 2002, Miller also appealed the

district court’s order denying a certificate of appealability on

Miller’s remaining four claims. On January 17, 2003, this

Court denied Miller’s application for a partial certificate of

appealability holding that Miller failed to make a substantial

showing of the denial of a constitutional right. This Court

determined that Miller’s appeal should proceed on the claim

that the district court certified: Whether Miller was denied

the effective assistance of counsel when his trial counsel

failed to seek to exclude Juror Bell. On May 12, 2003,

8 Miller v. Webb No. 02-5907

1We decide this case under the AEDPA because Miller filed his

petition for a writ of habeas corpus on November 2, 2001, well after the

AEDPA’s effective date of April 24, 1996 . See Lindh v. Murphy, 521

U.S. 320, 336 (1997); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir.

1999).

Respondent-Appellant Patti Webb, Warden, waived the

opportunity to respond to Miller’s appeal.

II. DISCUSSION

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 Court usually reviews findings of fact

for clear error, “but when the district court’s decision in a

habeas case is based on a transcript from the petitioner’s state

court trial, and the district court thus makes ‘no credibility

determination or other apparent findings of fact,’ the district

court’s factual findings are reviewed de novo.” Wolfe v.

Brigano, 232 F.3d 499, 501 (6th Cir. 2000) (quoting Moore

v. Carlton, 74 F.3d 689, 691 (6th Cir. 1996)).

In determining whether to issue a writ of habeas corpus, the

provisions of the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”) govern the district court’s review of

a state court decision.1 28 U.S.C. § 2241. Pursuant to the

AEDPA,

[a]n application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State

court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings

unless the adjudication of the claim–

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or
No. 02-5907 Miller v. Webb 9

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

Id. § 2254(d).

The Supreme Court explained these requirements for

habeas relief under 28 U.S.C. § 2254(d)(1) in Williams v.

Taylor, 529 U.S. 362 (2000). In Williams, the Court held

that, in order to justify a grant of habeas relief, a federal court

must find a violation of law that is “clearly established” from

“the holdings, 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

decision is “contrary to” clearly established federal law “if the

state court arrives at a conclusion opposite to that reached by

[the Supreme] Court on a question of law or if the state court

decides a case differently than [the Supreme] Court has on a

set of materially indistinguishable facts.” Id. at 413.

Furthermore, the Court held that a state court’s legal decision

will be deemed an “unreasonable application” of clearly

established federal law “if the state court identifies the correct

governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” Id.

A federal court, however, may not find a state adjudication

to be unreasonable “simply because that court concludes in its

independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or

incorrectly. Rather, that application must also be

unreasonable.” Id. at 411. Moreover, a federal court making

the unreasonable application inquiry should not transform the

inquiry into a subjective one by inquiring whether all

reasonable jurists would agree that the application by the state

court was unreasonable. Rather, the issue is “whether the

state court’s application of clearly established federal law is

objectively unreasonable.” Id. at 410.

10 Miller v. Webb No. 02-5907

Under the AEDPA, therefore, the threshold inquiry is

whether Miller seeks to apply a rule of law that was clearly

established at the time of his conviction in the state court. See

id. at 412. Miller seeks 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 counsel. The

Court in Strickland established a two-prong test to evaluate

claims of ineffective assistance of counsel pursuant to the

Sixth Amendment. First, the petitioner “must show that

counsel’s representation fell below an objective standard of

reasonableness. Judicial scrutiny of counsel’s performance

must be highly deferential, and a fair assessment of attorney

performance requires that every effort be made to eliminate

the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.”

Id. at 689. A court considering a claim of ineffective

assistance of counsel “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. Second, the petitioner must

show that counsel’s performance prejudiced the petitioner.

That is, the petitioner must “show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id.

When a biased juror is impaneled, however, “prejudice under

Strickland is presumed, and a new trial is required.” Hughes

v. United States, 258 F.3d 453, 457 (6th Cir. 2001). 

Miller argues that it was ineffective assistance of counsel

for his trial counsel to keep Juror Bell, a biased juror, on the

jury. Pursuant to the Sixth and Fourteenth Amendments, a

criminal defendant is guaranteed the right to an impartial and

unbiased jury. Morgan v. Illinois, 504 U.S. 719, 727 (1992).

“Among the most essential responsibilities of defense counsel

is to protect his client’s constitutional right to a fair and

impartial jury by using voir dire to identify and ferret out

jurors who are biased against the defense.” Miller v. Francis,

269 F.3d 609, 615 (6th Cir. 2001); see United 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 make possible the

empanelling of an impartial jury through questions that permit

the intelligent exercise of challenges by counsel.” ); see also

Mu’Min v. Virginia, 500 U.S. 415, 431 (1991) (stating that

voir dire “serves the dual purposes of enabling the court to

select an impartial jury and assisting counsel in exercising

peremptorychallenges”); Rosales-Lopez v. United States, 451

U.S. 182, 188 (1981) (“Voir dire plays a critical function in

assuring the criminal defendant that his Sixth Amendment

right to an impartial jury will be honored.”).

Counsel, however, is granted deference when conducting

voir dire. Hughes, 258 F.3d at 457. “An attorney’s actions

during voir dire are considered to be matters of trial strategy.

. . . A strategic decision cannot be the basis for a claim of

ineffective assistance unless counsel’s decision isshown to be

so ill-chosen that it permeates the entire trial with obvious

unfairness.” Id. (citation omitted). Despite this strong

presumption that counsel’s decisions are based on sound trial

strategy, it is insufficient for counsel to simply articulate a

reason for an omission or act alleged to constitute ineffective

assistance of counsel. “The trial strategy itself must be

objectively reasonable.” Miller, 269 F.3d at 616 (citing

Strickland, 466 U.S. at 681).

A trial court’s management of voir dire is granted similar

deference. The Supreme Court has acknowledged the

“traditionally broad discretion accorded to the trial judge in

conducting voir dire.” Mu’Min, 500 U.S. at 423. A trial

court’s management of voir dire, however, is “subject to

essential demands 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 challenge for cause.” Id. (citing

McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548,

556 (1984)). “‘Challenges for cause are subject to approval

12 Miller v. Webb No. 02-5907

by the court and must be based on a finding of actual or

implied bias.’” Id. (quoting Virgin Islands v. Felix, 569 F.2d

1274, 1277 n. 5 (3d Cir. 1978)).

Pursuant to the Sixth Amendment, for a finding of juror

impartiality when a juror is challenged for cause, the relevant

question is “did [the] juror swear that he could set aside any

opinion he might hold and decide the case on the evidence,

and should the juror’s protestation of impartiality have been

believed.” Patton v. Yount, 467 U.S. 1025, 1036 (1984). A

qualified juror need not be “totally ignorant of the facts and

issues involved.” Murphy v. Florida, 421 U.S. 794, 800

(1975). Rather, “‘[i]t is sufficient if the juror can lay aside his

impression or opinion and render a verdict based on the

evidence presented in court.’” Id. (quoting Irvin v. Dowd,

366 U.S. 717, 723 (1961)). In Irvin, the Supreme Court

stated:

In these days of swift, widespread and diverse methods

of communication, an important case can be expected to

arouse the interest of the public in the vicinity, and

scarcely any of those best qualified to serve as jurors will

not have formed some impression or opinion as to the

merits of the case. This is particularly true in criminal

cases. To hold that the mere existence of any

preconceived notion as to the guilt or innocence of an

accused, without more, is sufficient to rebut the

presumption of a prospective juror’s impartiality would

be to establish an impossible standard. It is sufficient if

the juror can lay aside his impression or opinion and

render a verdict based on the evidence presented in court.

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

If actual bias is discovered during 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 an inference that the person will not act with

entire impartiality.’” Id. at 463 (quoting United States v.
No. 02-5907 Miller v. Webb 13

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

v. Wood, 299 U.S. 123, 133 (1936))). Although bias can be

revealed through a prospective juror’s express admission,

more frequently, jurors are reluctant to admit actual bias and

the trial court must discover their biased attitudes through

circumstantial evidence. Id. at 459 (citing United States v.

Allsup, 566 F.2d 68, 71 (9th Cir. 1977)).

Because Miller’s claim for ineffective assistance of counsel

is based on his trial counsel’s failure to strike a biased juror,

Miller must show that the juror was actually biased against

him. Id. at 458 (citing Goeders v. Hundley, 59 F.3d 73, 75

(8th Cir. 1995) (citing Smith v. Phillips, 455 U.S. 209, 215

(1982))). “A juror’s express doubt as to her own impartiality

on voir dire does not necessarily entail a finding of actual

bias. The Supreme Court has upheld the impaneling of jurors

who had doubted, or disclaimed outright, their own

impartiality on voir dire.” Id.; see also Patton, 467 U.S. at

1025 (holding that trial court did not commit “manifest error”

when finding jury members to be impartial despite admitting

that they formed an opinion as to the defendant’s guilt due to

pretrial publicity).

This Court in Hughes, however, found actual bias when a

juror made an unequivocal statement of partiality and there

was neither a subsequent assurance of impartiality nor

rehabilitation by counsel or the court through follow-up

questions. Hughes, 258 F.3d at 460. In Hughes, the

government charged the defendant with theft of government

property and wrongful possession of a firearm in connection

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

force in Wyandotte, and I know a couple of detectives,

and I’m quite close to ’em.

14 Miller v. Webb No. 02-5907

THE COURT: Anything in that relationship that would

prevent you from being fair in this case?

JUROR: I don’t think I could be fair.

THE COURT: You don’t think you could be fair?

JUROR: No.

THE COURT: Okay. Anybody else? Okay. Where did

we leave off?

Id. at 456. Neither the judge nor counsel asked any follow-up

questions. In addition, counsel never attempted to remove the

juror for cause or by peremptory strike. This Court held 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 responded to the juror’s express statement that she

could not be fair. There was no subsequent assurance of

impartiality and no rehabilitation by counsel or the court

through follow-up questions. This Court held that, when left

with only a statement of partiality without a subsequent

assurance of impartiality or rehabilitation through follow-up

questions, “juror bias can always be presumed from such

unequivocal statements.” Id. at 460. As a result of finding

actual bias, this Court held that the state court’s denial of the

defendant’s ineffective assistance of counsel claim was 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

judge asked the jury panel whether any individual had

anything else to add, Juror Bell stated, “I feel like I would

kind of be partial to Linda Cline because, when she was in my

classes (inaudible) she seemed like she really wanted to do

better and I kind of have sympathy for her in this case, with

her being the victim.” Juror Bell indicated that she was
No. 02-5907 Miller v. Webb 15

“partial” to the government’s key witness. The trial judge

asked only one follow-up question regarding whether she

could be fair and impartial. In response, Juror Bell stated, “I

think I could be fair,” however, she immediately qualified her

statement by stating, “[b]ut I do have some feelings about

her.” Although defense counsel questioned her further, he

only inquired about the women’s section and the jail. Neither

counsel nor the judge followed-up on her statement of

partiality. They did not ask whether she could “lay aside [her

feelings] and render a verdict based on the evidence presented

in court.” Irvin, 366 U.S. at 722-23. In this context, when a

juror makes a statement that she thinks she can be fair, but

immediately qualifies it with a statement of partiality, actual

bias is presumed when proper juror rehabilitation and juror

assurances of impartiality are absent, as in Hughes.

This Court acknowledges that, when asked whether a

particular juror can be fair, statements such as “I think I could

be fair” are not necessarily construed as equivocation. Miller

v. Francis, 269 F.3d at 618. In Miller v. Francis, we stated,

“venire members commonly couch their responses to

questions concerning bias in terms of ‘I think.’ Therefore, the

use of such language cannot necessarily be construed as

equivocation.” Id. For a juror to say, “I think I could be fair,

but . . . ,” without more, however, must be construed as a

statement of equivocation. It is essential that a juror “swear

that [she] could set aside any opinion [she] might hold and

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 court cannot believe the protestation of impartiality.

See id. Accordingly, when the trial court is ultimately left

with a statement of partiality, as in this case, that is coupled

with a lack of juror rehabilitation or juror assurances of

impartiality, we are left to find actual bias.

When a trial court is confronted with a biased juror, as in

this case, the judge must, either sua sponte or upon a motion,

dismiss the prospective juror for cause. Frazier v. United

States, 335 U.S. 497, 511 (1948). Because the trial 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 objectively unreasonable pursuant to Strickland. “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.’” Hughes, 258 F.3d at 462 (quoting

Johnson v. Armontrout, 961 F.2d 748, 754 (8th Cir. 1992)).

The Kentucky Court of Appeals held that Miller was not

denied effective assistance of counsel because Miller failed to

show that his trial counsel’s decision to leave Juror Bell on

the jury was not the result of reasonable professional

judgment. Miller’s trial counsel, Skaggs, stated that he kept

Juror Bell on the jury because the case was about “hard core

drug addicts” and Juror Bell knew Linda Cline and “[a]nyone

who knew Linda Cline, knew that she could not be trusted.”

The Kentucky Court of Appeals noted that any error in trial

strategy regarding the selection of jurors does not generally

rise to the level of ineffective assistance of counsel.

Contrary to the Kentucky Court of Appeals’s decision, the

decision whether to seat a biased juror cannot be a

discretionary or strategic decision. Id. at 463 (citing United

States v.Martinez-Salazar, 528 U.S. 304, 316 (2000) (holding

that the seating of a biased juror who should have been

dismissed for cause requires reversal of the conviction)). As

we previously held, there is no sound trial strategy that could

support what is essentially a waiver of a defendant’s basic

Sixth Amendment right to trial by an impartial jury. Id. If,

however, there could be such a strategic decision, this case

does not present such a situation because Skaggs’s articulated

trial strategy was objectively unreasonable. First, Skaggs’s

reasoning that “anyone who knew Linda Cline, knew that she

could not be trusted” was completely baseless. Juror Bell

never gave counsel nor the court an indication that she did not

trust Linda Cline. On the contrary, Juror Bell believed that

Linda Cline “wanted to do better” and Juror Bell had
No. 02-5907 Miller v. Webb 17

“sympathy for her in this case, with her being the victim.” It

was clear that Juror Bell was not an individual who did not

trust Linda Cline. Rather, Juror Bell was involved in ministry

with Linda Cline and believed in her.

Second, Skaggs’s reasoning that this case was about “hard

core drug addicts” and its dependent implication that Juror

Bell knew about this subject was also baseless. Although

Juror Bell was a minister at the Warren County Jail, she

specifically stated that she “never ask[ed] any of them about

why they’re in for or any of their business. [Her] whole

concern was the word of God. [She] never talk[ed] to them

about their cases or any of their personal business.” In

addition, during voir dire, Skaggs never questioned Juror Bell

about her knowledge of “hard core drug addicts.” Skaggs

made an unreasonable assumption that Juror Bell had such

knowledge considering that Juror Bell stated that she never

discussed personal business with the ladies. Accordingly,

Skaggs’s trial strategy was objectively unreasonable. It was

illogical to keep Juror Bell on the jury when she was partial

to Linda Cline, the Government’s key witness and victim. No

competent attorney would have employed such a strategy.

The “‘presence of a biased juror cannot be harmless; the

error requires a new trial without a showing of actual

prejudice.’” Hughes, 258 F.3d at 453 (quoting United States

v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir. 2000) (citations

omitted)). Therefore, because Miller’s trial counsel

impaneled a biased juror, “prejudice under Strickland 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 defense’s challenges for cause

of four prospective jurors in a murder trial. The first two

prospective jurors were close friends of the victim’s parents.

One of these jurors did not think he could be fair and

impartial. The other stated that she could be fair and

impartial, but conceded that it was “hard to say” whether her

18 Miller v. Webb No. 02-5907

2

An affirmative statement of impartiality is required to ensure that a

juror is unbiased, but such a statement alone is not the determining factor.

A trial court must still determine, from the context, whether such a

statement is believable. Patton, 467 U.S. at 1036.

relationship with the victim’s parents would influence her.

Id. at 502. The third prospective juror admitted she read and

saw news accounts of the crime and “expressed doubt as to

whether she could put aside those reports and decide the case

solely on the evidence presented at trial.” Id. at 502-03. The

fourth prospective juror “doubted he would require the

prosecution to prove its case beyond a reasonable doubt.” Id.

at 503. This Court held that “[i]n the absence of an

affirmative and believable statement that these jurors could

set aside their opinions and decide the case on the evidence

and in accordance with the law, the failure to dismiss them

was unreasonable.” Id. (citing Patton, 467 U.S. at 1036).

This Court further stated that “it appears that the trial judge

based his findings of impartiality exclusively upon each

juror’s tentative statements that they would try to decide this

case on the evidence presented at trial. Such statements,

without more, are insufficient. . . . The Sixth Amendment

guarantees Wolfe the right to a jury that will hear his case

impartially, not one that tentatively promises to try.” Id.

Therefore, this Court granted habeas relief because the denial

of a challenge for cause violated the petitioner’s Sixth

Amendment right to an impartial jury.

As in Wolfe, when Juror Bell stated, “I think I can be fair.

But . . .[,]” there was an absence of an affirmative and

believable statement that Juror Bell could set aside her

opinion and decide the case on the evidence and in

accordance with the law.2 Such statements of partiality,

without more, are insufficient. See id.

Another case in this Circuit that involved juror impartiality

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

v. Francis, this Court declined to grant habeas relief for an
No. 02-5907 Miller v. Webb 19

ineffective assistance of counsel claim. The defendant was

charged and convicted for gross sexual imposition and rape of

a minor under the age of thirteen. During voir dire, one juror,

Patricia Furrow (“Furrow”), stated that she had knowledge of

the case, but could not discuss the case in open court because

of privacy concerns. During an in camera examination,

Furrow indicated that she was a welfare caseworker to the

victim’s mother. Furrow stated that she knew what happened,

but the victim’s mother did not use any names and did not

discuss the details of the rape or the criminal investigation.

Furrow expressed concern about participating on the jury.

She thought it would be uncomfortable for both herself and

the victim’s mother. In addition, she was worried that the

victim’s mother would try to telephone her during 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 charges 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 reassigned to a new caseworker. Defense

counsel declined to challenge Furrow for cause or use a

peremptory challenge to remove the potential juror. The

defendant was then convicted for the charged crimes.

The defendant, in his habeas petition, argued that his

defense counsel was ineffective for failing to challenge a

biased juror and, therefore, the Ohio Court of Appeals

unreasonably determined that he was not denied the effective

assistance of counsel. This Court, however, declined to grant

habeas relief, holding that the defendant failed to meet his

burden of showing actual bias. This Court stated:

Because Miller’s claim of ineffective assistance of

counsel is founded upon a claim that counsel failed to

strike a biased juror, Miller must show that the juror was

actually biased against him. Hughes, 258 F.3d at 458.

20 Miller v. Webb No. 02-5907

Miller has failed to meet his burden. Furrow’s prior

knowledge of the case was not extensive or detailed.

Furrow indicated during voir dire that [the victim’s

mother] told her over the phone that her son had been

raped, but did not disclose the name of the suspect or any

details of the event or the investigation. Furrow agreed

that she would not necessarily assume that what [the

victim’s mother] told her was true and that she could

base her judgment on the evidence presented at trial.

Jurors need not be totally ignorant of the facts and issues

involved in the case. [Irvin, 366 U.S. at 722.]

Miller v. Francis, 269 F.3d at 616. In denying habeas relief,

this Court distinguished Miller v. Francis from Hughes by

stating that, unlike Hughes, the trial court held a separate in

camera examination of the juror when she indicated she had

some prior knowledge of the case. During the in camera

examination, the trial court, the prosecutor, and defense

counsel questioned her regarding her knowledge, her

relationship with the victim’s mother, and whether she could

be fair and impartial. Unlike the juror in Hughes, “Furrow

never stated that she could not be fair. While Furrow

expressed some discomfort about sitting on the jury, she

consistently answered 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

partiality, Juror Bell specifically stated she would be “partial”

to Linda Cline. Juror Bell stated that she had “sympathy for

her” and believed she was the “victim.” Juror Bell never

unequivocally stated that she could be fair. On the contrary,

Juror Bell gave a qualified statement of impartiality.

Moreover, unlike Miller v. Francis, where there was

sufficient questioning regarding the relationship between the

juror and the victim’s mother, when Juror Bell stated, “I

believe I could be fair about it all. But I do have some

feelings about her[,]” neither the trial court nor counsel
No. 02-5907 Miller v. Webb 21

inquired further regarding whether she could be fair and

impartial. Without proper follow-up questions directed

toward rehabilitating the juror or obtaining an assurance of

impartiality, we are left with a situation as in Hughes in which

we found actual bias. Although defense counsel asked Juror

Bell about the women’s section at the Warren County Jail, he

never inquired about whether she could be fair and impartial

despite her “feelings.” He never inquired whether she could

determine the case based on the evidence and the trial court’s

instructions. Consequently, the present case is

distinguishable from Miller v. Francis.

III. CONCLUSION

Because we find counsel’s performance to have been

objectively unreasonable andwe find that impaneling a biased

juror prejudiced Miller, the Kentucky Court of Appeals’s

determination that Miller’s trial counsel’s performance was

not constitutionally deficient was an unreasonable application

of Strickland, which is clearly established federal law. We,

therefore, REVERSE the district court’s order denying

Miller’s 28 U.S.C. § 2254 petition, and REMAND the case

with instructions that the district court order Petitioner

released from custody unless the State commences a new trial

within 180 days.

22 Miller v. Webb No. 02-5907

______________

DISSENT

______________

JULIA SMITH GIBBONS, Circuit Judge, dissenting.

Bell’s statements during voir dire do not demonstrate that she

was actually biased against Miller, and the majority errs in

concluding otherwise. Therefore, I respectfully dissent. 

As an initial matter, some clarification is in order with

respect to the posture of Miller’s ineffective assistance claim.

No state court addressed the issue of whether Miller’s

counsel’s performance prejudiced him. Consequently, we are

not constrained under AEDPA by any state court ruling on

this matter, and we confront it de novo. See Wiggins v. Smith,

123 S.Ct. 2527, 2542 (2003); Maples v. Stegall, 340 F.3d 433,

437 (6th Cir. 2003). More specifically, no state court

determined that Bell either was or was not actually biased

against Miller, which is a question of fact. Fields v.

Woodford, 309 F.3d 1095, 1103 (9th Cir. 2002); see also

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

the question of a particular juror’s impartiality as “one of

historical fact”). And while the district court found that Bell

was not actually biased against Miller, it reached this

conclusion solely on the basis of transcripts from state court

proceedings; hence, we review the conclusion de novo rather

than for clear error. Miller v. Straub, 299 F.3d 570, 579 (6th

Cir. 2002). 

A defendant may prove that his counsel’s failure 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. 2001) (emphasis added); see also Hughes

v. United States, 258 F.3d 453, 458 (6th Cir. 2001)

(“Petitioner’s ‘claim of ineffective assistance of counsel is

grounded in the claim that counsel failed to strike a biased

juror. To maintain a claim that a biased juror prejudiced him,

however, [Petitioner] must show that the juror was actually
No. 02-5907 Miller v. Webb 23

biased against him.’”) (emphasis added and alteration in

original) (quoting Goeders v. Hundley, 59 F.3d 73, 75 (8th

Cir. 1995)). “Actual bias is ‘bias in fact’ – the existence of a

state of mind that leads to an inference that the person will not

act with entire impartiality.” Hughes, 258 F.3d at 463

(quotation omitted); see also Murphy v. Florida, 421 U.S.

794, 800 (1975) (explaining that a juror is not impartial if

there actually exists “an opinion in the mind of the juror as

will raise the presumption of partiality”) (quotation omitted).

It is distinct from implied bias, which has been described as

arising only in “extreme situations where the relationship

between a prospective juror and some aspect of the litigation

is such that it is highly unlikely that the average person could

remain impartial in his deliberations under the

circumstances.” Person v. Miller, 854 F.2d 656, 664 (4th Cir.

1988); see also United States v. Wood, 299 U.S. 123, 134

(1936) (defining implied bias as “a bias attributable in law to

the prospective juror regardless of actual partiality”). 

A juror is impartial if she can disregard her preconceptions

“and render a verdict based on the evidence presented in

court.’” United States v. Angel, 355 F.3d 462, 470 (6th Cir.

2004) (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)). A

juror’s express assurance that she can do so, although not

necessarily conclusive, cf. Wolfe v. Brigano, 232 F.3d 499,

502 (6th Cir. 2000) (“A court’s refusal to excuse a juror will

not be upheld simply because the court ultimately elicits from

the prospective juror a promise that he will be fair and

impartial.”) (quotation omitted), indicates that she is

impartial. See Angel, 355 F.3d at 470; Miller, 269 F.3d at

616; Hughes, 258 F.3d at 460 (stating that juror assurances of

impartiality may be relied upon “in deciding whether a

defendant has satisfied his burden of proving actual

prejudice”). If a juror makes such an assurance, the defendant

must demonstrate 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

deciding a case impartially] cannot be dispositive of the

accused’s rights, and it remains open to the defendant to

24 Miller v. Webb No. 02-5907

1

Apparently, in stating that she could be fair in determining “whether

she’s guilty,” Bell momentarily mistook Cline as being the defendant in

the case. 

demonstrate the actual existence of such an opinion in the

mind of the juror as will raise the presumption of partiality.”)

(quotation omitted); see also Miller, 269 F.3d at 616-17

(noting that it is a defendant’s burden to show actual bias to

succeed on an ineffective assistance of counsel claim based

on failure to strike a biased juror and finding that the

defendant did not meet this burden because the juror at issue

expressly indicated that she could decide the case impartially

and because there was no reason given to doubt this

assurance). A juror’s close and ongoing relationship with a

person involved in the case may undermine the reliability of

her assurance of impartiality. Wolfe, 232 F.3d at 502; see

also Miller, 269 F.3d at 616-17 (crediting a juror’s assurance

of impartiality despite her acquaintance with the victim’s

mother because “there is no indication from the record that

they shared a close personal relationship”). But merely being

acquainted with someone involved in the case does not. See

McQueen v. Scroggy, 99 F.3d 1302, 1320 (6th Cir. 1996)

(“There is no constitutional prohibition against jurors simply

knowing the parties involved . . . . The Constitution does not

require ignorant or uninformed jurors; it requires impartial

jurors.”). 

Miller does not succeed in demonstrating that Bell was

actually biased against him. Bell made numerous express

assurances during voir dire that she could decide Miller’s case

fairly. Specifically, in response to the trial court’s question as

to whether she could be fair and impartial despite her

familiarity with and feelings for Cline, Bell replied, “I think

I could be fair. I think I could be fair. . . . I believe I could be

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

be fair about it all.”

1

 These statements are not so equivocal

in and of themselves as to be untenable. See Miller, 269 F.3d

at 618 (crediting statements by juror that “I think I could be
No. 02-5907 Miller v. Webb 25

fair” and “I don’t really think that I would be biased”).

Indeed, “venire members commonly couch their responses to

questions concerning bias in terms of ‘I think’” such that “the

use of such language cannot necessarily be construed as

equivocation.” Id. 

Furthermore, Miller provides no reason to doubt the

validity of Bell’s assurances. As evidenced by the fact that

Bell had not seen Cline in at least a year at the time of voir

dire, the two did not share a close and ongoing relationship.

Nor is there any reason to believe that Bell’s sympathy for

Cline was so strong as to undermine the reliability of her

assurance that she could evaluate the case fairly and

impartially. Expressions of sympathy for a victim, without

more, do not demonstrate actual bias where the juror has

assured the court that she may decide the case fairly. For

example, in Ainsworth v. Calderon, 138 F.3d 787, 796 (9th

Cir. 1998), a juror indicated during voir dire that “she was

unsure whether she could disregard the information she had

gathered from news sources and decide the case based only on

the evidence presented at trial.” The defendant sought a

change of venue, which was denied. Id. at 795. On habeas

review, he claimed that this denial was erroneous because the

juror in question was actually prejudiced against him. Id. at

795-96. The court rejected this assertion, noting that there

was “no indication that [the juror] had the opinion that [the

defendant] was the murderer, and she repeatedly stated she

could set aside her feelings of sympathy for [the victim] in

order to judge the case fairly.” Id. at 796; see also Celestine

v. Blackburn, 750 F.2d 353, 360 (5th Cir. 1984) (holding that

state court did not err in refusing to dismiss for cause a juror

who knew the granddaughter of the victim because, even

though her testimony at voir dire indicated her emotions

might affect her ability to deliberate, “she consistently stated

that her feelings would not so influence her as to prejudice her

against [the defendant]” and “[s]he had not discussed the

murder with the granddaughter, and 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 indication that she discussed the

crime at issue with Cline. 

In sum, Miller fails to meet his burden of showing that Bell

possessed actual bias against him, and, as a result, he also

fails to meet his burden of showing that his counsel’s failure

to strike Bell was prejudicial. Thus, we should affirm the

district court’s denial of Miller’s ineffective assistance claim

and of his petition for a writ of habeas corpus more generally.

The majority, of course, reaches a contrary conclusion. It

finds that, although Bell stated “I think I could be fair,” she

never made an unequivocal statement of impartiality and, in

fact, made express statements of partiality. There are

numerous problems with this conclusion and the manner in

which the majority reaches it. First, Bell said much more

than “I think I could be fair”: 

I think I could be fair. I think I could be fair. I

ministered in the women’s section for about four years.

[Cline] was kind of in and out, but she seemed like she

wanted to do better, but I believe I could be fair and

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

fair about it all.

Far from saying so in an isolated statement, Bell reiterated

again and again that – despite her familiarity with Cline – she

could decide Miller’s case fairly. 

Additionally, by describing them as statements of partiality,

the majority ascribes significance to certain of Bell’s

statements that the words do not justify. For example, the

majority latches on to Bell’s initial comments that “I feel like

I would kind of be partial to Linda Cline” and “I kind of have

sympathy for her in this case, with her being the victim.”

First of all, these “kind of” statements are hardly unequivocal.

 Second, as discussed, expressions of sympathy for a victim

do not necessarily demonstrate partiality. Third, the majority
No. 02-5907 Miller v. Webb 27

injects legal content into Bell’s use of the term “partial,”

construing it to mean that she cannot decide the case on the

evidence before her and that she is admitting bias against

Miller. However, her full testimony indicates that Bell uses

“partial” to indicate sympathy, or having a liking or fondness

for, Oxford English Dictionary (2d ed. 1989), Cline.

Moreover, imputing import to Bell’s use of the word “partial”

and to her initial indication of sympathy for Cline

conveniently ignores the fact that, after she made these

statements, the trial court, apparently concerned about Bell’s

potential partiality, immediately questioned her about her

ability to serve on the jury impartially, to which Bell

responded repeatedly that she could be fair in deciding

Miller’s case. 

Ultimately, however, 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, “But I do have feelings about

[Cline].” While this remark may constitute a statement of

partiality in the sense that it evidences empathy for Cline,

Bell is not asserting that she would not be able to decide fairly

Miller’s guilt or innocence. Rather, the statement was simply

a reaffirmation of Bell’s earlier statement that “she kind of

[had] sympathy for Cline, with her being the victim,” a

feeling she repeatedly explained would not affect her ability

to decide Miller’s case fairly. At no point did Bell ever

indicate that her concern for Cline would make her more

likely to accept Cline’s testimony as true, would predispose

her to credit evidence offered against Miller, would lead her

to discount testimony offered on Miller’s behalf, or would in

any way incline her to believe that Miller was guilty. The

only express statements we have from Bell regarding her

ability to decide the case are: “I think I could be fair. I think

I could be fair. . . . I believe I could be fair and whether she’s

guilty or not guilty. I believe I could be fair about it all.”

28 Miller v. Webb No. 02-5907

2

At most, the majority could conclude – though I would still disagree

– that Bell’s statements of feelings toward Cline undermine her assertion

of impartiality, see Wolfe, 232 F.3d at 502 (“[T]he second juror’s

assessment that she could be fair and impartial [is] untenable [] in light of

both the close relationship between the juror and the victim’s family, and

the fact that she knew the family’s theory of the victim’s death.”), but to

characterize them as statements of partiality in and of themselves is

unfounded. 

Because Miller has not articulated a valid reason to disregard

these statements, they deserve our credence.2 

In reaching its conclusion, the majority analogizes this case

to Hughes. The analogy is inapt. In Hughes, the juror

unequivocally stated during voir dire, “I don’t think I could

be fair.” 258 F.3d at 456. In response, the trial court asked

the juror, “You don’t think you could be fair?”, to which the

juror starkly replied, “No.” Id. Most importantly, the juror

never individually stated or suggested whatsoever that she

could be impartial, either initially or through rehabilitation.

Id. at 460 (“[The juror] never said that she would be able to

render a fair and impartial verdict.”). Left only with a

statement in the record that she could not be fair, this court

was able to presume the juror was partial and actually biased

against the defendant. Id.; see also Miller, 269 F.3d at 617

(“Because the only evidence relevant to the issue of bias [in

Hughes] was the juror’s statement that she did not think she

could be fair, we had no choice but to find actual bias.”)

(emphasis added).

The case sub judice could not be more different. Here, Bell

never stated that she did not think she could be fair. Quite the

contrary, she stated that she believed she could be fair “about

it all.” And she said so again and again. In an attempt to fit

this case within the bounds of Hughes, the majority posits that

it is “ultimately left with a statement of partiality” without

“juror assurances of impartiality,” whereas, in reality, we are

left with numerous statements of impartiality without any

express assertion from Bell that she could not decide the case
No. 02-5907 Miller v. Webb 29

fairly. In other words, what enabled the court in Hughes to

presume partiality – a blatant statement of partiality and

absolutely no contrary statement from the juror that he could

be impartial – is glaringly absent here. Thus, to reach its

conclusion, the majority contorts the holding of Hughes,

which stands for the proposition that a juror may be presumed

to be actually biased against a defendant when he makes no

express statements of impartiality but instead expressly states

that he does not believe he can be fair in determining a

defendant’s innocence or guilt and no effort is made to

rehabilitate that juror specifically. The court unjustifiably

extends this holding to allow for a presumption of partiality

even when the juror has made express statements of

impartiality. 

The majority also analogizes this case to Wolfe. In Wolfe,

the court found that the trial court erred in failing to excuse

four jurors for cause. 232 F.3d at 502-03. However, each of

these jurors expressly doubted his or her ability to decide the

case fairly. One juror “did not think he could be a fair and

impartial juror.” Id. at 502. The second juror stated it was

“hard to say” whether her relationship with the victim’s

parents would impact her ability to deliberate fairly. Id. The

third juror “expressed doubt as to whether she could put aside

[news] reports and decide the case solely on the evidence

presented at trial.” Id. at 502-03. Finally, the fourth juror

“doubted he would require the prosecution to prove its case

beyond a reasonable doubt.” Id. at 503. When asked about

her partiality, Bell expressed no such doubt about her ability

to decide Miller’s case fairly. Wolfe is simply inapposite.

One final difficulty I have with the majority’s holding is

that it reduces the inquiry into a juror’s actual bias to a

question of chronology. If a juror swears repeatedly that she

can be fair in deciding a defendant’s innocence or guilt but

then indicates in her final statement that she has some degree

of sympathy for the victim, the majority would have it that a

court can only conclude that the juror is actually biased

against the defendant. I simply cannot subscribe to this

30 Miller v. Webb No. 02-5907

conclusion. In assessing whether a juror was actually biased

against a defendant, we should consider the totality of her

statements, see Hightower v. Schofield, 365 F.3d 1008, 1041

(11th Cir. 2004); see also Miller, 269 F.3d at 618

(considering all the statements made by the juror during voir

dire); cf. Pruett v. Norris, 153 F.3d 579, 587 (8th Cir. 1998)

(assessing actual prejudice under the totality of the

circumstances); Stafford v. Saffle, 34 F.3d 1557, 1567 (10th

Cir. 1994) (“We review actual prejudice by examining the

totality of the circumstances.”), not merely the statement that

comes last-in-time. 

I do not believe that the totality of Bell’s statements

demonstrates that she was actually biased against Miller.

Hence, I also believe that Miller’s counsel’s performance was

not so objectively unreasonable 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 cannot be faulted for

not disqualifying for cause a juror who consistently says that

she thinks she can be fair.”). In conclusion, I would affirm

the district court’s denial of Miller’s ineffective assistance of

counsel claim and, ultimately, its denial of his petition for a

writ of habeas corpus. Since the majority does otherwise, I

respectfully dissent.