* Pursuant o Local Rule 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-30008

_______________________

JOHN ANTHONY SHEEHAN,

Petitioner-Appellee,

versus

JOHN P. WHITLEY, WARDEN, Louisiana State Penitentiary;

RICHARD P. IEYOUB, ATTORNEY GENERAL, State of Louisiana,

Respondents-Appellants.

________________________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

(94-CV-2249-A)

________________________________________________________________________________

March 11, 1997 Before JONES, DUHÉ, and EMILIO M. GARZA, Circuit Judges

EDITH H. JONES, Circuit Judge: *

Appellee John Anthony Sheehan was convicted of second degree murder and

sentenced to life imprisonment wit ho ut benefit of parole for killing his wife, Monica Jeansonne

Sheehan in 1986. After his conviction was affirmed on direct and collateral review in the state courts,2

Sheehan sought a writ of habeas corpus in federal court. The district court referred the matter to a

magistrate judge, who recommended granting the writ based on Sheehan’s claims that he was denied

a fair trial before an impartial jury. The district court adopted the magistrate judge’s recommendation

and ordered the state to release Sheehan if he was not retried within sixty days. Pending appeal, the

order was stayed. We conclude that the lower courts failed to defer properly to the state court

findings of fact. With that error corrected, there was no basis for issuance of the writ. Accordingly,

we reverse and render judgment that relief be denied to appellee.

I. BACKGROUND

Monica Sheehan was killed in April 1986 when her husband fired a 12-gauge pump

shotgun into her chest . Sheehan admitted that he was holding the shotgun when it fired, but he

cont ended at t rial that he was merely cleaning the gun and the shooting was accidental. Two

Louisian a juries disagreed, and appellee was twice found guilty of second degree murder. The

Louisiana appellate court reversed Sheehan’s first conviction, finding that a statement by appellee had

been introduced against him in violation of the constitution. State v. Sheehan

, 515 So.2d 670 (La.

App. 3d Cir. 198 7), writ den. , 519 So.2d 129 (La. 1988). Appellee’s second trial led to the

confinement of which he now complains.

At that trial, Michelle Bordelon testified that after an argument in De cember 1984,

Sheehan “told her that he didn’t love her [Monica Sheehan], and didn’t know why he married her,

and wish [sic] he would have never married her.” Exhibit A, Trial Transcript (“Exh. A”) at 1178. Ms.

Bordelon also testified that Sheehan abused Monica, forcing her to visit the emergency room

. Id. at

1176-79. Monica’s father testified that the marriage was troubled and recounted a phone call from1 “Anthony Sheehan was hollering over the phone that if yo u tell your daddy anything

about what’s going on over here, I’m going to kill you; and if he comes down over here, I’m going

to fight with him and I’m going to kick him on his bad leg.” Id. at 1196.

2 “Well, I asked him [Anthony Sheehan] what their problem was, and he told me that

he just didn’t love her; that he thought he did, but he didn’t. And that he would do anything that it

took to get her out of his life.” Id. at 1221.

3 Moni ca in which he overheard Sheehan threaten to kill her. 1 Id. at 1196. Monica’s mother also

testified to marital difficulties between Sheehan and Monica. Id. at 1209-11. Monica’s step-father

testified that Sheehan talked to him in July or August of 1985 about marital difficulties, indicating that

he wanted out of the marriage. 2 Id. at 1220-21.

The state also introduced a $50,000 John Hancock insurance policy on Monica’s life

purchased on April 17, 1986, thirteen days before she died. The agent, Thomas McCullom, testified

that Sheehan already had a policy on Monica’s life dating from 1984 in the amount of $25,000, and

t he increase in insurance coverage ordered by Sheehan was unsolicited. The John Hancock

application indicated that appellee did not contemplate acquiring any other insurance on Monica’s

life. Appellee made t he policy effective immediately by delivering a military allotment to Mr.

McCullom.

On April 23, just seven days before Monica’s death, Sheehan initiated steps to secure

an additional $75,000 insurance policy covering Monica’s life. The State Farm representative, Phyllis

Hester, testified that appellee arrived at her office on April 24 without Monica, despite Mrs. Hester’s

admonition that Monica’s signature would be necessary. Id. at 1057. Mrs. Hester sent the policy,

complete except for blanks requiring Monica’s signature, home with Sheehan. When Sheehan3 “Mr. Sheehan arrived at o ur o ffice t he next morning, on the 25th, very early. Our

office opens

-- we work at 8:00, but we don’t open to the public until 8:30. And he was sitting in

the parking lot when we unlocked the doors.” Exh. A at 1059.

4 returned the policy early the next morning, the spaces contained Monica’s purported signature. 3 Id.

at 1059. To make the policy effective immediately, Sheehan paid premiums for two months in cash

and returned to pick up the signed binder that day, instead of accepting Mrs. Hester’s offer to mail

the binder once the agent had signed it. Id

. at 1063-64. The parties stipulated that the state’s

handwriting expert would testify that the signature purporting to be Monica’s on the Sta te Farm

policy application was actually Sheehan’s forgery. Id. at 1252.

When the shooting occurred, Monica was sitting on the floor in front of her husband

playing a game. He was sitting in a chair and allegedly began to clean a 12 gauge pump shotgun with

an oily rag when the gun fired. Moni ca was shot in the chest. The doctor who perform ed the

autopsy on Monica’s body testified that appellee’s explanation that the shooting was accidental was

inconsistent with Monica’s injuries and the trajectories of the buckshot. Id. at 1108-1128.

Detective Robert Venable testified that three unspent shotgun shells were found

-- two

on the floor and one in the chamber of the shotgun. Id. at 1325-26. A nurse who arrived at the scene

soon after the shooting testified that two unspent shells and a spent shotgun shell were lying on the

floor near Monica’s body. Detective Venable did not find a spent shell on the floor but found a spent

shell in the chamber of the shotgun.

The jury, by a 10-2 vote, found Sheehan guilty of second degree murder. Appellee

subsequently filed a motion for new trial on the grounds that David Trimbur, the jury foreman, had

concealed his position as an auxiliary sheriff and his relationship with Detective Venable. Appellee5

also alleged that members of the jury had learned of his prior conviction on this charge. After an

evidentiary hearing, the trial judge denied the motion for new trial. Appellee obtained a writ from the

Louisiana Supreme Court ordering the trial court to reopen the hearing on the motion for new trial

on the grounds that appellee had newly discovered evidence. On remand, the trial court heard the

new evidence and again denied the motion for new trial. This time, appeals were unsuccessful. S tate

v. Sheehan , 558 So.2d 758 (La. App.3d Cir. 1990).

Sheehan filed this petition for writ of habeas corpus, alleging a denial of the right to

trial by an impartial jury because 1) Trimbur concealed inform at ion that would have supported a

challenge for cause and 2) the jurors learned of appellee’s prior conviction for the same crime. The

magistrate judge found that the state court applied the wrong legal standard to appellee’s claim and

thus disregarded t he state court’s findings of fact. The district court concurred, leading to a

conditional grant of the writ and this appeal.

II. DISCUSSION

A. Standard of Review.

The President signed the Antiterrorism and Effective Death Penalty A ct of 1996

(AEDPA) on April 24, 1996. Pub. L. No. 104-132, 110 Stat. 1214 (1996). This circuit has held that

the AEDPA applies to appeals pending as of the effective date of the act. Drinkard v. Johnson , 97

F.3d 751, 754 (5th Cir. 1996). AEDPA amended the substantive standards of review applicable to

habeas cases.

In Drinkard

, the panel determined t hat applying § 2254(d)(1) as amended by the

AEDPA to pending cases did not raise retroactivity problems since the amendment is a “change in6

procedural rules” involving “federal standards of review of state court decisions.” 97 F.3d at 766.

A habeas petitioner cannot demonstrate reliance on the “former federal standards of habeas review

in making strategic, tactical, or other decisions during the state court litigation.” Id. AEDPA has

codified standards for reviewing both the legal and factual determinations of state courts pertinent

t o a habeas case. With respect to any claim “that was adjudicated on the merits in state co urt

proceedings,” a writ shall not be granted unless the petitioner shows that the state court adjudication

(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

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

determination of the facts i n light of the evidence presented in the

State court proceeding.

AEDPA § 104, co dified at 28 U.S.C. § 2254(d) (emphasis added). AEDPA shields state court

findings of fact from reversal in federal court by a presumption of correctness, which may be rebutted

only by clear and convincing evidence. AEDPA § 104, codified at 28 U.S.C. § 2254(e)(1).

The following analysis will demonstrate that the lower courts’ grant of relief did not

satisfy these high standards, but it will also show that, even under pre-AEDPA standards, the lower

courts failed to give the appropriate deference to the state court findings. State courts of competent

jurisdiction, after a hearing on the merits, made written factual findings supported by the record as

a whole. See 28 U.S.C. § 2254(d) pre-AEDPA. We must defer to the state court findings in the

absence of any proof that deference was unwarranted; the lower federal courts’ mere disagreement

with state court factfindings did not confer authority to disregard them.7

B. Reverend Trimbur

The magistrate judge decided that Sheehan’s Sixth Amendment righ t to a fai r tri al

before an impartial jury was violated because the jury foreman, Reverend David Trimbur, concealed

on voir dire that he was a reserve deputy sheriff. This concealment allegedly created an inference of

bias which, according to the magistrate judge, would have supported a challenge for cause. The

alleged concealm

ent also rendered Sheehan’s counsel unable to exercise their peremptory strikes

intelligently. The state argues that the magistrate judge failed to give proper deference to the state

court findings that Trimbur was not biased. We agree with the state.

To demonstrate that he is entitled to a reversal, a federal defendant who complains that

a juror mistakenly responded to a question on voir dire must first demonstrate that a juror failed to

answer honestly a material question, and then further show that a correct re sponse woul d have

provided a valid basis for a challenge for cause. M cDonough Power Equip., Inc. v. Greenwood

, 464

U.S. 548, 555-56, 104 S.Ct. 845, 849-50 (1984). We will assume, a rguendo

, that appellee must at

least meet this standard to justify relief in a federal habeas proceeding. See Montoya v. Scott

, 65 F.3d

405, 419 (5th Cir.) (“[W]e assume, arguend o , that a McDonough theory of juror bias would be

sufficient to obtain federal habeas relief.”), cert. denied , ___ U.S. ___, 116 S.Ct. 1417 (1995).

1. Voir dire.

Juror Trimbur was pastor of the Marksville Baptist Church and an auxiliary deputy

with the Avoyelles Parish Sheriff’s office. During voir dire, Trimbur was asked:4 The relevant examination of Trimbur by defense counsel was:

Q. OK. Now,

... I understand there’s some kind of community

-- I don’t want to

say outrage or up-roar, but conflict about drinking in one of the neighboring

towns, and teenage drinking; and Mr. Rabalais [one of the defense attorneys]

is involved in th at . ... Have you been to any meetings that Mr. Rabalais’s

attended or you’ve attended or Mr. Knoll’s [ t he district attorney ] attended,

on that issue?

A. Yes.

Q. Tell me about that.

A. I went to see what was going to transpire in the way of exchange of dialogue

with the gentleman repre sent ing our ABC Board Camp. Mr. Rabalais’s

connection with that has no bearing on me, OK? I wouldn’t

-- I don’t portray

myself with this word, ‘outrage.’ OK?

Q. Well, I don’t know what the right word is, OK? I’m just looking for a word

... conflict ...

A. I attended one meeting at the Concer ned Parents for Better Avoyelles, if

that’s what you’re referring to.

Q. I don’t know.

A. Yes sir, that, I think, is what you’re referring to . Mr. Rabalais [one of the

defendant’s lawyers] was present at that meeting; I know that.

Q. OK, and what about Mr. Knoll [the district attorney]?

A. Yes sir.

***

8 Q: Are you or any members of your family, or close friends,

employed by the District Attorney’s Office, or by the Sheriff’s

Office?

A: No sir.

*****

Q: Is there any personal, business, family or health reason, that

you know of, why you could not serve as an impartial juror in

this case?

A: None that I know of.

Exh. A at 918, 919-20. Trimbur was also asked about a Concerned Parents for Better Avoyelles

meeting that he attended approximately five weeks prior to trial. Trimbur indicated that he was there

in his capacity as a minister and for personal interest and made no mention of any official role he

might have played. 4Q. I’m not from here, and I don’t know the history of all this. But I understand

that there are some interests

-- I don’t

-- I won ’t use a catch word, that

there’s some “interests” and there may be a problem with teenage dr i nking

and driving in particular area[s] of the parish. Is that accurate?

A. That’s accurate.

***

Q. OK, where is

-- what is your interest in that issue?

... And, does that come

fr o m just a personal interest as an individual, or is that through your

representing the interest of your congregation, or of y o ur religion or, you

know, whatever?

A. Through my church ... that was through personal interest as an individual.

Q. OK. And, has the -- is the District Attorney, does he have anything to do with

that issue, to your knowledge?

A. I think as a concerned parent, he was at the meeting.

Q. OK. But not in an official -- there’s no official request to him, that you’re

aware of, or none by you, that ...

A. None by me.

Q. All right, and none that you’re aware of, that you have any action upon?

A. Not that I know of.

Exh. A at 927-929.

9 Later, Trimbur was asked about his k no wledge of people involved with the

investigat io n o r t rial of the case. Examination by defense counsel relating to Detective Robert

Venable proceeded as follows:

Q. Let me ask you some names and see if you know these folks.

A. Yes sir.

Q. Detective Robert Venable with the Sheriff’s Office?

A. Yes sir.

Q. And how do you know Detective Venable?

A. I performed his wedding a year and a half ago.

Q. All right. And, did you have to -- when I got married, I met

with he preacher in advance, and he kind of counseled you and

stuff, did you do any of that, or did you just do the ceremony?

A. I just did the ceremony.

Q. All right. Did you know his wife?

A. Yes, I did.

Q. Was she a member of your congregation, or he?

A. She was. That was in Evergreen.10 Q. All right, have you had any contact with him since that time?

A. I saw him yesterday for a few minutes in the hall, and I asked

him about his marriage.

Q. Other than that?

A. No sir. Not really.

Exh. A at 930.

2. Motion for new trial.

In considering Sheehan’s motion for new trial, the Louisiana trial c ourt hel d an

evidentiary hearing during which it heard the testimony o f Detective Venable, Sergeant Malcolm

LaBorde, Trimbur, and Captain Gano Bergeron. The testimony focused on the extent of Trimbur’s

participation as an auxiliary deputy, Trimbur’s relationship with Detective Venable, and Trimbur’s

explanation of his answers given in voir dire.

Trimbur’s service with the Sheriff’s Department. Trimbur had been an auxiliary

deputy since 1985. His involvement appeared to peak in 1986, but tapered off in 1987 as his job at

a new congregation required more of his time. However, he still served as a deputy up to and after

the April 1988 trial. Auxiliary deputies are required to spend 16 hours per month serving the

department and are not generally paid. However, Trimbur had been paid $38.53 in November 1987

for one day’s work guarding an inmate at a local hospital. Trimbur had ridden in a patrol car with

regular deputies, wore a uniform identical to that of a regular deputy, carried a badge, carried a gun,

had officer training, and sometimes visited the Sheriff’s office when he was not on duty. The Sheriff’s

office is adjacent to the jail, and Trimbur had counsele d prisoners and deputies on spiritual issues.

Trimbur had also been called to assist with a crisis relating to Cuban re fugees at the jail. Trimbur

testified that he had not seen Sheehan at the jail.5 Trimbur only recalled two visits when Venable accompanied other pari shi oners to

Trimbur’s home for coffee.

11

At the Concerned Parents for a Better Avoyelles meeting five weeks before the trial,

Trimbur had volunte e red to the entire group that he was an auxiliary deputy and would relay any

concerns that individuals had to the district attorney, sheriff or other appropriate authority.

Trimbur’s relations hip with Detective Venable. Detective Venable had at least

some role in facilitating Trimbur’s appointment as an auxiliary sheriff in 1985. In 1986, Trimbur was

the pastor of the Evergreen Baptist Church, which Detective Venable attended with his wife, and

Trimbur occasionally visited Detective Venable at the Sheriff’s office. In 1987, Detective Venable

saw Trimbur about once a month, and he had also seen Trimbur at the Sheriff’s office in 1988.

Detective Venable testified that he had been to Trimbur’s home approximately six times; the most

recent visit occurred several months before the trial. 5 Detective Venable had seen Trimbur about

three or four times between January 1988 and April 1988, the time of the trial, and they had discussed

the detective’s marital problems. However, Trimbur was unaware as of the hearing in June 1988 that

Detective Venable had separated from his wife in January 1988. Trimbur had not talked to Detective

Venable since the trial began.

Trimbur’s explanation of his voir dire testimony. Trimbur stated that he did not

reveal his commission as an auxiliary deputy because no one directly asked him about it and he did

not consider himself to be “employed” by the Sheriff’s office. Trimbur testified that he considered

the question about employment by the sheriff’s office as a follow-up to the earlier instruction by the

court that “members of paid fire and police departments” are entitled to claim an exemption, and he6 Trimbur’s extensive explanation was contained in the following testimony:

Q. And please tell me where the meeting was, what the meeting was about and

what statement you made.

A. The meeting was Concerned Parents For a Bet t er Avoyelles, is the name

under which they were meeting. It was the second meeting that they had, the

only meeting that they have had that I attended. I was present, two men from

the church I serve was present and my wife was present. It was at Mr. Knoll’s

[the district attorney ] home on March 15th. I went in for the purpose of

getting information for my own curiosity about matters related to problems

of under-aged drinking in our parish.

Q. Finish your answer, please.

A. Well, I was at that meeting, and that’s when I made a statement about being

an auxiliary ...

Q. I’d like for you to tell us if you can, please, the specifics, as you recall them,

relating to what caused you to make that statement who you were talking to,

who was present, what was the context of the statement, and what you said.

I want you to tell us about your actions, not anyone else’s.

A. The meeting was called for the purpose of hearing from board member o r

official of the ABC Board of our State, as to ways that could be explored so

that the established laws about under-aged drinking could be better enforced.

The gentleman from the ABC Board was there and was telling us of his

frustrations from problems that he had in relation to manpower, not being

able to get out into the community, and so forth. He made a statement that --

something to the effect

-- and I don’t remember the exact words

-- something

to the effect that if there were people in the parishes that he could call upon

for assistance, it would facilitate their being able to follow up on complaints

about business establishments , selling intoxicating beverages to under-aged

12 did not consider himself a paid policeman. Trimbur felt that his involvement with the sheriff’s

department was minimal, and that he was looked upon as an unofficial chaplain rather than an officer.

He had forgotten about the one day on which he supervised a hospitalized inmate and was paid $38.

Furthermore, Trimbur did not report in voir dire that he had revealed his de puty status at the

Concerned Parents For a Better Avoyelles meeting because the district attorney

, Mr. Knoll, and two

of t he defense lawyers, Mr. Rabalais and Mr. Melancon, were present when he made the

announcement. 6youth. There was between 35 and 40 people at that meeting. I spoke up,

there wasn’t a lot of us talking; we were list ening to Mr.

... the man who was

-- the ABC Board man. I spoke up and said in that meeting, in the presence

of these people, and I know they heard me, I said, I have a commission, I am

a deputy, I have a uniform, if you ever need help in this parish, in this area,

call me and I will see if I can work out a way to be of assistance to you. And

at that meeting, the prosecuting attorney was there ; he was hosti ng the

meeting, and so was both attorney s for the defense present. Mr. Rabalais was

sitting immediately to my left, I was immediately to this gentleman’s left, that

was there; I was sitting on the steps; he was standing; I remember distinctly

Mr. Raba lais, t he attorney, and Mr. Melancon, the attorney, being at that

meeting. So, when I came to court, having been called for jury selection, I

listened very carefully to Judge Brouillette’s discourse to us about

qualifications, disqualifications, and exemptions. I heard him very clearly say

that a minister of religion co uld claim an exemption. I heard him say very

clearly that a member of paid fire or police dep art ment could be exempted.

I did not, when the line formed a t his bench, come up and tell him I was a

minister of religion. I did not come up and tell him I was an auxiliary deputy,

in any capacity. I felt that my involvement with the Department was minimal;

I thought that I was looked upon more as a chaplain there, than I was as a

policeman. And so, I didn’t say anything about being a minister, either, until

it came out in the questioning, positively I knew, both, the prosecuting

attorney and both local defense attorneys, heard me made that statement, just

five weeks before that I was an auxiliary. And I felt if it was of any

consequence, they would bring it up. It wasn’t to me. And so I ..

Q. Rev. Trimbur ...

A. I know it’s a long answer, but I’m trying to explain to you why I didn’t say

anything.

Exh. A at 1571-73.

13

Sergeant LaBorde testified that he had asked Trimbur how he had been selected for

jury service, since, in his view, “if somebody’s working at the Sheriff’s Office, they don’t serve on

the jury.” Exh. A at 1555. Sergeant LaBorde testified that Trimbur responded: “somebody had

asked him some questions, you know, if he was working with them, and he said yes.” Id. at 1556.

State court findings. The state trial court denied the new trial mo t io n, crediting

Trimbur’s explanation that he associated the question about employment with the sheriff’s office with7 The court evaluated whether Trimbur’s act ivit ies categorized him as a law

enforcement officer:

The factors which show him to be in the law enforcement community are that he had

a uniform; he occasionally went on patrol with paid deputies; he had a badge; and he

had a firearm. The factors which suggest that he was not truly a law officer are

that he never made an arrest; he never interrogated a witness; he never used a firearm

and never had firearm training; and he never participated in any investigation. While

he did not have the title of chaplain, he considered his position to be essentially that.

He counseled deput ies; he counseled prisoners in the jail; he conducted prayer

services when a deputy died in a plane crash.

Exh. A at 1657-58.

14 the exemption available for paid members of police departments. The trial court found that Trimbur’s

interpretation of the questioning was reasonable. The court noted:

It may be argued that Trimbur’s answer to the question was less than

full disclosure, even if technically cor rect. However, his testimony

makes it very clear that he did not intentionally mislead anyone. He

considered his service as a volunteer a uxiliary deputy to be such

common knowledge t hat it did not deserve special comment in the

voir dire questioning.

****

The testimony of Rev. Trimbur depicts, in the court’s opinion, a very

civic-minded individual who wanted to be a good citizen and to

participate in civic activities. In voir dire by defendant’s counsel,

when asked why he did not avail himself of his exemption as a

minister, he answered as follows:

B ecause I’m not just a member or servant of my

church; I’m

a member of my community; and I feel

strongly an obligation to the community.

Exh. A at 1657-58.

The trial court reasoned that since Trimbur had no knowledge of or connections to

t he crime, the only way to show he was biased and, consequently, disqualified would be if law

enforcement officers were disqualified per se. 7 Reviewing the relevant Louisiana law, the trial court15

held that a volunteer auxiliary deputy would not be automatically disqualified. See State v. Ballard

,

337 So. 2d 481, 483 (La. 1976) (denial of challenge for cause against unpaid volunteer deputy sheriff

was not error; “We find no prohibition against jury service by an unpaid volunteer [auxiliary

policeman] who peripherally and occasionally assists in law enforcement.”).

In addition, the trial court found that the motion should be denied because Sheehan

had not established that he an d his counsel were unaware of Trimbur’s commission. S ee State v.

Baxter 357 So. 2d 271 (La. 1978) (“...in order for a d efendant t o avail himself of the lack of

qualification of a juror, it must be made to appear that the disqualification of the juror was not known

to defendant, or his couns e l, when the juror was accepted by him and could not then have been

ascertained by due diligence; and it must be made to appear that such diligence was exercised by an

examination of the juror, on his voir dire, touching his qualifications, and that he answered falsely.”).

The trial court noted that only one of appellee’s lawyers, Rodney Rabalais, testified that he was

unaware that Trimbur was an auxiliary deputy. Lewis Unglesby and Tucker Melancon, appellee’s

other two trial lawyers, did not testify to a lack of knowledge. The trial court also noted Trimbur’s

testimony that he was sure that Rabalais and Melancon knew Trimbur was a deputy. Further, as in

Baxter

, the trial court found that “if it was error for Trimbur to answer that he was not employed by

the sheriff’s office-- and that is certainly not clearly established--then it should be recognized that he

was entirely honest.” Exh. A at 1660.

As to Trimbur’s relationship with Detective Venable, the trial court first noted that

this relationship was not urged as a basis for a motion for new trial. The trial court recounted the

short voir dir e examination of Trimbur regarding Detective Venable, and concluded that defense16

counsel was aware of the friendship and should have probed it further. The court further found that

“[t]here is nothing to suggest, in the court’s opinion, that Trimbur intentionally misled or deceived

defense counsel.” Exh. A at 1662.

3. Remand from the Louisiana Supreme Court.

Before his appeal was heard by the intermediate court of appeals, Sheehan obtained

a writ from the Louisiana Supreme Court ordering the trial court to reopen the hearing on the motion

for new trial based on an allegation of newly discovered evidence. At the reopened hearing, appellee

presented the testimony of Claire Sharp, a local attorney and member of Trimbur’s congregation, who

testified that Trimbur had contacted her after receiving a jury summons. Ms. Sharp testified that

Trimbur asked for advice about the effect of his religious profession as well as his auxiliary

commission on his abilit

y to serve. Ms. Sharp told Trimbur to tell the court and the attorneys about

his positions, or t o at least answer the voir dire questions openly and honestly. Ms. Sharp also

testified that Trimbur told her that “I guess it doesn’t matter; everybody knows I’m a minister and

an auxiliary deputy anyway,” and she r espo nded “yes, I suppose that’s true; this is a small town.”

Exh. A Supplement at 40.

After hearing this new testimony as well as additional testimony from Trimbur, the trial

court again denied the motion for new trial. The trial court concluded:

There is certainly nothing ominous, as such, about a prospective juror,

calling an attorney, prior to serving, to find out what it’s all about,

particularly in this case, a member of his congregation. I would

suppose it’s probably a common occurrence, especially summoned for

the first time. Now, if the purpose of talking with an attorney would

be to conspire, to do anything improper, then, of course, that would

be most significant. The record shows Rev. Trimbur’s explanation for

the call. It is totally consistent with the testimony of Mrs. Sharp. I17 have no difficult

y accepting his explanation. And I certainly don’t feel

that he was attempting to calculate a way to mislead anybody in order

to serve on the jury. My findings in the reasons for denial of the first

motion for a new trial, that he did not attempt to mislead anybody, is

certainly still my finding. There’s absolutely nothing to suggest that

there was any improper reason. In fact, the evidence shows just the

opposite.

Exh. A Supplement at 42-43.

4. Appeal to the Louisiana Court of Appeals.

In affirming the denial of the new trial motion, the court of appeals opined at length:

We have examined this record closely and find that there is nothing in

it, nor in the nature of Trimbur’s function with the sheriff’s office,

which would disqualify him fro m service on the jury. It is apparent

that he was a clergyman first, and an auxiliary dep ut y second. His

responses on voir dire were not misleading, and did not conceal any

informati o n. His relationship to the sheriff’s office, as well as his

relati o nship with Detective Venable, were not such as could be

expected to destroy

t he otherwise impartial attitude of this juror.

Trimbur was subjected to intense interrogations in an effort to prove

specific facts showing such a close connection to the sheriff’s office

and Detective Venable that bias fo r the prosecution should be

presumed. Trimbur’s consistent responses in the record reflect his

voir dire commitment to fairness and impartiality. Nothing he said at

the hearings supported a finding of bias, actual or implied. What

comes across most strongly in the record of all three examinations--

the voir dire, the new trial hearing, and the rem and hearing--is his

relationship with the community and its citizens in his capacity as a

minist er o f religion. He neither sought nor avoided jury duty. He

answered every que s tion candidly and without rancor, openness

characterizing his every response. Only by a strained manipulation of

his words can bias be wrung from his testimony. We agree with the

trial court.

Sheehan , 558 So.2d at 763-64.18 5. Findings of the magistrate judge.

Contradicting the state court’s credibility evaluations, the magistrate judge concluded

that Trimbur “deliberately concealed” his auxiliary deputy status and friendship with Detective

Venable during voir dire because he did not think it was important and “because he wanted to be on

the jury.” The magistrate judge drew an inference of bias, citing U nited States v. Scott

, 854 F.2d 697,

699 (5th Cir. 1988) (juror’s censoring of fact that brother was a deputy sheriff created inference that

he wanted to serve on jury and thought he would not be allowed to serve if he answered completely).

The magistrate judge chided the trial court fo r having “no good basis” to believe that Sheehan’s

attorney s knew Trimbur was an auxiliary deputy. The magistrate judge then concluded that Sheehan

satisfied the first prong of McDonough --that a juror had falsely answered a material question on voir

dire.

The magistrate judge also decided that a challenge for cause against Trimbur would

have been granted because he was an auxiliary deputy. “Louisiana jurisprudence is clear on that

point,” he stated, citing State v. Simmons

, 390 So.2d 1317, 1318 (La. 1980) (“an actively employed

criminal deputy sheriff is not a competent criminal juror”) and State v. Mitchell

, 475 So.2d 61, 63-4

(La. App. 2d Cir. 1985) (active or reserve police officer is too likely to be influenced as a juror and

should be disqualified).

After reciting the concept of deference to state court findings, the magistrate judge

co ncluded that the trial court did not actually find that Trimbur was not biased. And since the

magistrate judge read Louisiana law as automatically disqualifying auxiliary deputy sheriffs from jury

service, he disagreed with the state courts’ application of state law.19 6. Analysis.

Whether analyzed under the old or new federal habeas standards, the magistrate judge

clearly erred in failing to give appro priat e deference to the findings of the Louisiana courts.

The magistrate jud ge held that the trial court made no express finding whether

Trimbur was biased and that Trimbur deliberately concealed information on voir dire, supporting an

inference of bias. Yet the trial court explicit ly fo und that Trimbur did not “intentionally mislead

anyone,” that he “was entirely honest in his answer,” and that “ t here is nothing to suggest

... that

Trimbur intentionally misled or deceived defense counsel.” The trial court so ruled after observing

voir dire, the entire trial, and two motions for new trial. The record amply supports the state trial

court’s conclusions. The trial court credited Trimbur’s explanation that he reasonably associated the

question about employment with the sheriff’s office with the exemption for p aid policemen, an

exemption he believed was not available to him. The trial court found that Trimbur reasonably

believed he was not “employed” by the sheriff’s department in the common usage of that term.

Further, the trial court credited Trimbur’s testimony that he believed that all the attorneys knew of

his status as an auxiliary deput y, because he had announced it in the attorneys’ presence just five

weeks before trial. Thus, even if an inference of bias can be drawn from deliberate censoring during

voir dire, the trial court found, contrary to the magistrate judge, no deliberate censoring on Trimbur’s

part. The state court made explicit findings, adequately supported by the record, that are contrary

to the inferences drawn by the magistrate judge. Deference was owed to the state court fact findings,

particularly because they were reached after painstaking, meticulous efforts to uncover the relevant8 However, Simmons involved a paid, full-time investigator with the Sheriff’s

department 390 So.2d at 1318, and Mitchell involved an active reserve police officer, and although

it is not clear from the opinion, it appears that the officer was a paid employee. Mitchell

, 475 So.2d

at 62-63.

20 facts. Under the AEDPA standard, Sheehan did not prove by clear and convincing evidence that the

state court findings were incorrect. See 28 U.S.C. § 2254(e)(1) (as amended by AEDPA).

Moreover, the Louisiana court of appeals explicitly found a lack of bias. S heehan

, 558

So.2d at 764 (“Nothing he said at the Hearings supported the finding of bias, actual or implied.”).

Findings of state courts at all levels must be given appropriate deference. Rushen v. Spain

, 464 U.S.

114, 120, ___ S.Ct. ___, ___ (1983) (per curiam). The magistrate judged erred by not even

addressing this finding.

Also contrary to the mag istrate judge’s conclusion, the Louisiana courts correctly

applied Louisiana

law in t he issue of disqualifying auxiliary deputies. While the magistrate judge

quotes language from Simmons

, 390 So.2d at 1318, and Mitchell

, 475 So.2d at 62-63, that supports

his interpretation of Louisiana law, 8 co mpelling caselaw justifies a conclusion that someone in

Trimbur’s position would not be automatically disqualified from jury service. The trial court cited

the decision in Ballard

, in which the Louisiana Supreme court held that it was unnecessary to grant

a challenge for cause against an unpaid volunteer deputy sheriff. 337 So.2d at 43. But perhaps most

relevant is the decision of the court of appeals in this very case, which the Louisiana Supreme Court

declined to reverse, holding that “there is nothing in [t he record], nor in the nature of Trimbur’s

function with the Sheriff’s office, which would disqualify him from service on the jury.” Sheehan

, 558

So.2d at 763.9 Even if Louisiana law would have supported a challenge for cause based on Trimbur’s

auxiliary deputy status, Sheehan has still not shown that he is constitutionally entitled to a challenge

for cause on that basis.

21

Thus, the magistrate judge erred in disregarding the state court findings in this case

and in concluding that Sheehan met the two prongs of McDonough

. We must defer to the state court

findings that Trimbur did not intentionally mislead the court or defense counsel, and that e ven full

information regarding Trimbur’s position with the Sher iff’s department and his relationship with

Detective Venable would not support a challenge for cause. 9

Alternatively, the denial of the moti o n fo r new trial can be sustained on the

independent state law ground that Sheehan’s trial attorney s knew of Trimbur’s status as an auxiliary

d e puty sheriff and failed to use reasonable diligence to pursue further information about his

relationship with the sheriff’s department. The magistrate judge erroneously concluded that the trial

court “had no good basis” for believing that the de fense at t o rneys heard Trimbur announce his

auxiliary deputy status at a “noisy public meeting” five weeks earlier, remembered it, and “deliberately

concealed the fact of Trimbur’s employment as a deputy sheriff as a trial strategy.” First, the state

trial judge had ample basis: Trimbur testified that one of the attorney s sat right next to him at the

meeting, that he made the announcement loudly, and that “no one else was speaking at that time. I

cannot c o nceive o f everyone in that room not having heard what I said.” The trial judge was not

required to believe Mr. Rabalais’ testimony that he never heard Trimbur’s announcement. Second,

Trimbur’s wife worked for a compan y o wned by Tucker Melancon, one of appellee’s attorneys.

Finally, the trial judge never found that appellee’s attorney s deliberately concealed their knowledge

of Trimbur’s background as a trial strategy. Louisiana law requires the defendant to show that he22

and his lawy ers had no knowledge of the facts supporting disqualification and used reasonable

diligence to pursue these facts. The trial court found that Sheehan had not met this burden, not that

his attorney s deliberately concealed the information as trial strategy. The magistrate judge’s contrary

conclusion is a clear error. Sheehan’s challenge to Trimbur’s service on the jury fails on this adequate

and independent state law ground as well.

C. Prejudicial extraneous information

The magistrate judge als o decided that Sheehan’s right to a fair trial before an

impartial jury was violated because, before reaching the verdi ct, one or m ore j urors l earned of

Sheehan’s prior trial and conviction for this same crime. The state again objects that the magistrate

judge failed properly to defer to the state court findings of fact and applied the wrong legal standard.

The Supreme Court’s cases in this area “cannot be made to stand for the proposition

that juror exposure to information about a state defendant's prior convictions or to news accounts

of the crime with which he is charged alone presumptively deprives the defendant of due process.”

Murphy v. Florida

, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036 (1975). In federal trials, exposure of

the jury to information about prior felony convictions is presumed to be prejudicial, but this is a rule

based on a federal court’s inherent power to control its proceedings and is not constitutionally

required. Id. at 797, 95 S.Ct. at 2035 (rejecting the application of Marshall v. U.S.

, 360 U.S. 310

(1959) t o a state prisoner’s claim on federal habeas corpus). Instead, “we must turn ... to any

indications in the totality of the circumstances that petitioner’s trial was not fundamentally fair.” Id.

at 799, 95 S.Ct. at 2036. Although a juror may be presumed to be biased if exposed to “inherently10 The trial court sustained the state’s objections to testimony about juror misconduct

under La. R.S. 15:470 (replaced by La. C. Art. 606), which allows testimony by jurors as to

misconduct by third persons but not as to juror mis conduct. However, the trial court allowed

Sheehan to offer testimony of juror misco nduct as a proffer, recognizing that this evidentiary rule

must give way to a defendant’s constitutional right to a fair trial. State v. Senigal

, 393 So.2d 684 (La.

1981). The trial court’s discussion of prejudice assumes that the proffered evidence is admissible.

Exh. A at 1665.

1 1 Mrs. Taylor testified that “... it was in the jury room on Saturday morning, and he had

said he knew a friend of a friend, or a relation somewhat to that nature, that had se rved on the

previous jury, and t hat he had considered that night calling and speaking with him, but he had

changed his mind; he decided not to, because he didn’t want to be prejudiced.” Exh. A at 1639.

23 prejudicial facts about the defendant” so that “t h e court deems it highly unlikely that the juror can

exercise independent judgment,” the “court will not readily presume that a juror is biased solely on

the basis that he or she has been exposed to prejudicial information about the defendant outside the

courtroom .” Willie v. Maggio

, 737 F.2d 1372, 1379 (5th Cir.), cert. denied

, 469 U.S. 1002 (1984).

Thus, we must decide if “the actions called into que st io n were such as to reasonably result in the

possibility of prejudice.” Durr v. Cook

, 589 F.2d 891, 894 (5th Cir. 197 9). Evaluation of a claim

requires findings relating to the impact of the extraneous information on the verdict. Id. at 894.

In considering appellee’s motion for new trial, the trial court conducted a hearing 10

at which Terri Taylor, a juror who voted not guilty, testified that she was told of the prior trial and

conviction at church. Mrs. Taylor testified that although she did not tell any other jurors about what

she learned, she heard other jurors discuss appellee’s previous trial and conviction. Mrs. Taylor also

testified that David Gauthier, another juror, spoke about appellee’s prior trial and conviction. 11 Exh.

A at 1639. Mrs. Taylor also testified that another juror, Burnette Bordelon, related to Mrs. Taylor

that Mrs. Bordelon’s husband read aloud a newspaper article about the trial at breakfast. Id. at 1641.12 The trial court noted that it had monitored news accounts of the trial and that none

had mentioned the prior trial or conviction while the trial was in progress.

1 3 “There is no reason for a juror to believe that another jury had more or better evidence

than in the present case.” Exh. A at 1667.

24 Mrs. Taylor did not indicate whether the newspaper accounts discussed a prior trial. 12 However, Mrs.

Bordelon denied that she had read any article about the trial or that her husband had read aloud any

article about the trial. Id. at 1618.

Gwendolyn Small, an alternate juror, testified that she overheard other jury members

say that the defendant had been tried before, but not that the d e fendant was convicted. Exh. A at

1626. She could not remember who said it or when. Trimbur also testified that he learned at the end

of the day on the last day of deliberations that Sheehan had previously been tried, but not that he had

been previously convicted. Id. at 1586-87.

The trial court foun d t hat t he only evidence that the jury heard of appellee’s prior

conviction came from the testimony of Mrs. Taylor, who voted to acquit and thus was not prejudiced,

and who stated that she did not discuss the prior convictions with other jurors. The trial court also

pointed to its instructions to the jury to consider only the evidence introduced at trial, recognizing

that such an ins t ruct ion could not cure all error but was a factor in the overall consideration of

prejudice. Further, the trial court considered evidence that a previous jury had convicted the

defendant for the same conduct to be less prejudicial than evidence suggesting a pattern of conduct,

such as that the defendant had been convicted of similar conduct in the past. 13 The trial court did not

believe that a defendant had an absolute constitutional right to have a jury that had not heard of his25

prior conviction and concluded that any extraneous influence on the jury “was not prejudicial to the

extent of requiring a new trial.”

The magistrate judge decided that the trial court’s ruling was based on an erroneous

conclusion of law--that juror knowledge of a prior conviction for the same offense was not a per se

constitutional violation--and gave the trial court findings no deference. The magistrate judge inferred

that other jurors must have participated in the discussions of appellee’s prior trial and conviction, and

thus inherently prejudicial extrinsic information was considered by the jury. The magistrate judge

relied primarily on cases reviewing federal criminal convictions. See

, e.g.

, United States v. Howard

,

506 F.2d 865 (5th Cir. 1975) (post-conviction proce edings for federal prisoner); U nited States v.

Williams , 568 F.2d 464 (5th Cir. 1978) (direct appeal of federal conviction).

The magistrate judge’s decision to disregard the state court findings was erroneous.

Juror exposure to extraneous information must be examined o n case-by-case basis to determine if

there is a reasonable probability of prejudice. See Murphy

, 421 U.S. at 797, 95 S.Ct. at 2035; Durr

,

589 F.2d at 894. Thus, the state court did not err in considering all the circumstances in evaluating

prejudic e, rather than concluding that the jury’s exposure to information about appellee’s prior

conviction was a per se constitutional violation.

The state courts found that the only evidence of extraneous influence o n t he jury’s

deliberations was the information passed on to Mrs. Taylor at church, that Mrs. Taylor did not pass

on the information to other ju rors, and that Mrs. Tay l or voted to acqui t. The tri al court al so

s pecifically found that press coverage during the trial did not reveal appellee’s prior trial and

conviction. The trial court considered that Trimbur and Ms. Small, the latter an alternate juror, heard26

about Sheehan’s prior trial but not his conviction. The only evidence that any juror other than Mrs.

Taylor lea r ned of Sheehan’s prior conviction is the testimony of Mrs. Taylor that David Gauthier

spoke about appellee’s prior tri al and conviction. Based on this evidence, the magistrate judge

inferred that other jurors must have participated in discussions of appellee’s prior trial and conviction,

and he then summarily concluded that app ellee’s right to a fair trial was violated. The magistrate

judge did not distinguish among jurors who heard different information, stating that three jurors had

learned of appellee’s prior trial and conviction, when in fact two jurors testified that they only learned

of his trial.

The trial court heard firsthand the testimony of the three jurors and was in a better

position to judge the subtleties of and appropriate inferences to be drawn from their testimony. The

trial court appro priat ely no t ed that the only juror to testify that she had heard of appellee’s prior

conviction voted to acquit. S ee Durr

, 589 F.2d at 894, n. 4 (possibility that jury member alleged to

have introduced outside information voted to acquit is a factor in decid ing if t here is a reasonable

probability of prejudice). In addition, the trial court appropriately weighed the expected impact of

the limit ing instruction. After considering the evidence under all the circumstances, the trial court

found no possibility of prejudice, concluding:

The ultimate issue [in a motion for new trial] therefore is whether an

injustice has been done to the defendant. Admitting that there may

have been imperfections, this court can say without reservation or

hesitation that the evidence clearly supports the jury’s verdict and that

no injustice was done to this defendant. Acco rdingly, he is not

entitled to a new trial.

Exh. A at 1669. The court of appeals similarly concluded:27 If this testimony of Mrs. Taylor is t reated as evidence of juror

misconduct, it was inadmiss ible. If the testimony is treated as

evidence of an unauthorized communication resulting fro m

misconduct of a third perso n (at t he church meeting), and therefore

admissible, it nevertheless offended no substantial right s of the

defendant, for two reasons: first, Mrs. Taylor testified that she did not

pass the information on and, second, she voted for an acquittal.

Sheehan , 558 So.2d at 764.

Under the court’s supervisory power to control the processes of its courts, this court

has reversed a federal conviction where jurors learned of the defendant’s prior conviction in the same

matter. United States v. Williams

, 568 F.2d 46 4, 470-71 (5th Cir. 1978) (“we are hard pressed to

think of anything more damning to an accused than information that a jury had previously convicted

him for the crime charged”). However, t he st at e court in this case, who observed the entire trial,

including the jurors’ testimony in voir dire and at the evidentiary hearing, found no prejudice. Mrs.

Taylor’s vote to acquit provides at least some credibility to the trial court’s analysis of the relative

prejudicial effect of knowledge of appellee’s prior conviction. Sheehan has pointed to no decision

establishing his absolut e co nst it ut ional right to a jury that is ignorant of his prior conviction. The

Williams decision itself acknowledges that it is following a federal criminal rule, not a constitutional

mandate, and that the determination of prejudice is a fact-specific inquiry. Id. at 469. Furthermore,

even in reviewing federal criminal convictions, we give great deference to a trial court determination

that there is no r easo nable probability of prejudice. S ee United States v. O’Keefe

, 722 F.2d 1175,

1179 (5th Cir. 1983) (“appellate court should accord great weight to the trial court’s finding that the

[extrinsic] evidence in no way interfered with any juror’s decision”).28 We conclude that the lower court s erred awarding habeas relief. The state courts

found no reasonable probability of prejudice, and this conclusion as well as the u nderlying factual

findings is fairly supported by the record. Under the AEDPA standards, the state court decision was

not contrary to or an unreasonable application of federal law, and there is no basis for asserting that

the state factfindings should not be presumed correct.

CONCLUSION

For the foregoing reasons, we REVERSE the decision of the district court and render

judgment denying appellee’s request for writ of habeas corpus.

REVERSED

.