* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20401

LANCE GERARD BIAGAS

Petitioner-Appellee

v.

KIM VALENTINE, Interim Director Harris County Department of

Community Supervision and Corrections

Respondent-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. H-06-CV-668

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

Petitioner-Appellee Lance Biagas petitioned the district courtfor a writ of

habeas corpus, asserting that his state court trial and conviction violated his

constitutional right to effective assistance of counsel. The district court granted

Biagas relief on that basis as well as on the alternative basis of judicial error by

the state trial court. Respondent-Appellant Kim Valentine appeals the district

court’s grant of habeas relief, insisting, inter alia,that Biagas was not prejudiced

United States Court of Appeals

Fifth Circuit

F I L E D

February 6, 2008

Charles R. Fulbruge III

Clerk
No. 07-20401

1 Biagas was alleged to be one of several conspirators in a scheme to defraud Harris

County. He was tried and convicted for felony theft in Texas state court.

2

by his defense counsel’s performance and that the district court erred by sua

sponte recognizing judicial error as an alternative ground for relief. We affirm

the district court’s grant of Biagas’s petition on the basis that he was denied

effective assistance of counsel. 

I. FACTS AND PROCEEDINGS

This case centers on a series of failures in the voir dire process that

resulted in Victor Gamboa’s presence on the jury that convicted Biagas. At the

time of Biagas’s trial, Gamboa was a Harris County Sheriff’s Deputy. Harris

County was the victim of the criminal scheme in which Biagas allegedly took

part,1 and the investigators, prosecutors, and two of the witnesses who testified

against Biagas were Harris County officials. During voir dire, Biagas’s defense

counsel Reginald McKamie asked Gamboa whether he thoughtthat “all sheriffs

or all policemen tell the truth all the time.” Gamboa responded, “Yes. They

made an oath.” When asked whether he would believe Officer McAnulty—a

Harris County law enforcement officer scheduled to testify at Biagas’s

trial—over Lance Biagas, Gamboa replied, “I'm going to be partial,” and then

clarified, “I'm going to believe [Officer McAnulty].” McKamie then asked the

jury pool whether any of them believed that a police officer’s word was superior

to anyone else’s, and three others responded affirmatively. The state trial judge

then stated,“[I]f you really in your heart believe that[police officers are] entitled

to more believability than any other person, then you certainly should not sit on

the jury.” At the conclusion of McKamie’s questioning, he and the prosecutor

discussed and then submitted to the trial judge the names of their agreed-on

strikes for cause, which list did notinclude Gamboa. The trial judge and counsel

then repaired to chambers, where individual jurors theretofore challenged for

cause (but who had not been agreed to by the parties) were called in for further
No. 07-20401

3

questioning outside the presence of the jury pool. Gamboa was not called into

chambers or challenged by either party. Notably, McKamie challenged

prospective jurors Krumlauf and Lemer, who, like Gamboa, had expressed bias

in favor of law enforcementtestimony. The court ultimately granted McKamie’s

challenge of Krumlauf but denied that of Lemer after Lemer stated that she

would wait to hear a police officer’s testimony before determining whether the

officer was credible. 

Following the in-chambers voir dire and the resolution of the challenges

for cause, both parties submitted their peremptory strikes; McKamie used one

of his ten on Lemer but he did not strike Gamboa. Thereafter, the court

instructed the clerk to name the jury, but the clerk mistakenly called thirteen

jurors into the box, rather than twelve. Gamboa was the twelfth of the thirteen

jurors called. 

When the jurors came forward—but before anyone realized that one too

many had been called—the court asked the parties whether they were satisfied

with the seating of the jury. At that time, McKamie requested to approach and,

on reaching the bench, said, “Your Honor, there was an oversight. I thought

[Gamboa] had been stricken for cause.” McKamie elaborated, “[Gamboa’s] a

police officer. He testified that he would have police officers ahead of anybody

else; and I thought he had been stricken for cause, Your Honor.” The trial judge

responded, “I’m sorry. I can’t—I can’t do anything about it.” 

Following this exchange, the bailiff realized that thirteen jurors had been

called, and the trial judge then excused the juror who was mistakenly called.

Once this confusion was resolved—but before the jury was sworn and the

remainder of the pool was excused—McKamie reiterated his oversight, stating:

Your Honor, before the jury is sworn in, I would like to object to

[Gamboa],the officer. He has clearly stated that he is biased toward

police officers, and it was an oversight. When we were doing it, I

thought he was on our list of agreed strikes. I think it will result in
No. 07-20401

2 Gamboa’s juror number was “38.” Counsel and the court referred to him by this

designated number during their exchanges detailed above; however, for purposes of clarity in

this opinion, we have identified him by his name and not his number.

3 Biagas v. Texas, 177 S.W.3d 161, 169 (Tex. App.–Houston 2005).

4

an impartial [sic] jury that will be biased against my client and I

move that we have a mistrial . . . .

The court overruled the motion, stating that it had “called out the numbers that

we agreed upon four different occasions, and [Gamboa’s] never on my list as to

be called up for cause or for any other reason he was not stricken, so it's

overruled, Counsel.”2

At trial, the State presented the testimony of two Harris County law

enforcement officers: Captains Jesse Mack and Dan McAnulty. The jury, which

included Gamboa, convicted Biagas of felony theft. Biagas retained a new

attorney and timely filed a motion for new trial, arguing that (1) he was denied

the opportunity to replace a biased juror and (2) he was denied effective

assistance of counsel when McKamie failed properly to challenge Gamboa. In

support of his motion, Biagas presented the affidavit of McKamie, who admitted

that he mistakenly believed that Gamboa was on the agreed for-cause strike list

and that he would have challenged Gamboa butfor that mistake. The trial court

denied Biagas’s motion without an opinion, and the Texas Court of Appeals

affirmed his conviction. In rejecting Biagas’s claim of judicial error, the

appellate court noted that (1) the trial court was within its discretion to deny

Biagas’s request for a mistrial, and (2) Biagas’s failure to challenge Gamboa for

cause deprived the trial court of an opportunity to assess whether he was

“unequivocally biased.”3 And, in rejecting Biagas’s ineffective assistance claim,

the appellate court concluded that the trial court could have found that

McKamie’s affidavit was not credible and thereby rejected McKamie’s contention
No. 07-20401

4

Id. at 171.

5

Id. at 172.

5 Virgil v. Dretke, 446 F.3d 598, 604 (5th Cir. 2006).

6

Id. (quoting 28 U.S.C. § 2254(d)(1)).

5

that he made a mistake.4 Moreover, the appellate court refused to concede that

Biagas was automatically harmed by Gamboa’s presence on the jury.5 Following

the affirmation of his conviction, Biagas’s petition for discretionary review was

denied by the Texas Court of Criminal Appeals. 

Having exhausted his recourse in state court, Biagas filed a federal

petition for a writ of habeas corpus, asserting that his Sixth Amendment right

to effective assistance of counsel had been violated. The district court agreed

that Biagas was denied effective assistance of counsel and held that the state

court decision upholding his conviction could not be sustained. In addition, the

district court concluded that the trial judge had failed to “ferret out” the taint of

juror bias without reasonable justification and that such failure amounted to

constitutional error entitling Biagas to habeas relief. The district court granted

Biagas’s petition on these two grounds and directed the State of Texas to grant

him a new trial or release him. Valentine timely filed a notice of appeal.

II. ANALYSIS

A. Standard of Review

As this action was brought under 28 U.S.C. § 2254, our review is limited

by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).5

Under the AEDPA, we cannot grant habeas relief “unless the state court

proceeding resulted in ‘a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by

the Supreme Court.’”6“A merely incorrect state court decision is not sufficient
No. 07-20401

7

Id. (citing Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004); Young v. Dretke, 356

F.3d 616, 623 (5th Cir. 2004)).

8

Id. at 605 (quoting U.S. CONST. amend. VI).

9

Id. (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)).

10 Id. at 607 (internal quotations omitted).

11 446 F.3d 598.

6

to constitute an unreasonable application of federal law; rather, the decision

must be objectively unreasonable.”7

B. Right to an Impartial Jury

“Our criminal justice system rests firmly on the proposition that before a

person’s liberty can be deprived, guilt must be found, beyond a reasonable doubt,

by an impartial decisionmaker. The Sixth Amendment provides in part: ‘In all

criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and district wherein the crime shall have

been committed.’”8“Put simply, ‘[T]he right to jury trial guarantees to the

criminally accused a fair trial by a panel of impartial, “indifferent” jurors.’”9

Moreover, we are “mindful that certain errors in the trial process are so basic to

a fair trial as to defy harmless error review. It is clearly established that the

Supreme Court views the denial of the right to an impartial decisionmaker to be

such an error that taints any resulting conviction with constitutional

infirmity.”10

C. Effective Assistance of Counsel

The district court held that Biagas was denied effective assistance of

counsel because of McKamie’s failure to challenge Gamboa either peremptorily

or for cause. In reaching its decision, the district court concluded that Virgil v.

Dretke11 controlled its analysis. Valentine argues that Biagas fails to meet
No. 07-20401

12 466 U.S. 668 (1984).

13 Id. at 687.

14 Virgil, 446 F.3d at 608 (internal quotations omitted).

15 Id. (quoting Titsworth v. Dretke, 401 F.3d 301, 310 (5th Cir. 2005)).

16 Id. (quoting Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir. 2004)).

7

Strickland v. Washington’s

12 two-pronged test for establishing ineffective

assistance of counsel, insisting, inter alia, that Biagas’s defense was not

prejudiced by McKamie’s conduct because any alleged bias was irrelevant to the

outcome and reliability of the proceedings. Moreover, in attacking the district

court’s decision, Valentine attempts to distinguish Virgil. We agree with the

district court that Virgil controls our analysis. And, in accordance with our

decision in Virgil, we hold that the district court properly granted Biagas relief

on the basis of ineffective assistance of counsel. 

To succeed on a charge of ineffective assistance of counsel in state court,

a petitioner must satisfy both prongs of Strickland’s two-part test by

demonstrating that(1) counsel’s performance was deficient and (2) that deficient

performance caused actual prejudice to the petitioner’s defense.13 To prove

deficient performance, “a petitioner must demonstrate that counsel’s

representation fell below an objective standard of reasonableness.”14In

evaluating counsel’s performance, we apply “the strong presumption that

counsel performed adequately and exercised reasonable professional

judgment.”15 “[A] ‘conscious and informed decision on trial tactics and strategy

cannot be the basis of constitutionally ineffective assistance of counsel unless it

is so ill chosen that it permeates the entire trial with obvious unfairness.’”16

After establishing that counsel’s performance was deficient, the petitioner must

also prove that such performance caused actual prejudice to his defense. To

demonstrate prejudice, a petitioner “must show that there is a reasonable
No. 07-20401

17 Id. at 611 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).

18 Id. at 612.

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

20 Id. at 609-10. Both jurors declared that they were less likely to believe a witness with

a prior criminal conviction, which the defendant had. In addition, Sumlin “stated that his

relationship with law-enforcement officers would preclude him from serving as an impartial

juror.” Id. at 609. Sims also remarked that “his mother’s mugging was ‘weighing’ on him as

to whether he could be partial or impartial, finally concluding that he could not be ‘fair and

impartial.’” Id. at 609-10.

21 Id. at 610.

8

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

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”17 Moreover, “Strickland’s

prejudice inquiry is process-based: Given counsel’s deficient performance, do we

have confidence in the process afforded the criminally accused?”18“‘[T]he

ultimate focus of the inquiry must be on the fundamental fairness of the

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

‘unreliable’ results caused by ‘a breakdown in the adversarial process that our

system counts on to produce just results.’”19

In Virgil, the defendant was convicted by a jury that included two jurors,

Roger Sumlin and Thomas Sims, who had expressly stated that they would be

unable to be fair and impartial.20 We held that counsel’s failure to challenge for

cause or peremptorily after Sumlin and Sims had offered unchallenged

statements of bias constituted deficient performance under Strickland.

21 In

reaching this conclusion, we observed that defense counsel’s affidavit—which he

submitted in an effort to justify his conduct and decisionmaking during voir

dire—did not explain why he failed to challenge the two jurors for cause or why
No. 07-20401

22 Id. In his affidavit, defense counsel stated that he “struck all persons whom [he]

thought had some type of bias, prejudice or issue based upon [his voir dire].” Id.

23 Id.

24 Id.

25 Whether McKamie used all of his peremptory challenges on other venirepersons is

of no consequence to us. Given the record on appeal and McKamie’s own admission (evident

from his affidavit and in-court statements), the fact remains that he could have—and should

have—used one of his ten strikes on Gamboa. 

9

he allowed them to serve on the jury, given their express bias.22 We also noted

that defense counsel had challenged two other prospective jurors who had

offered similar testimony to Sumlin and that neither the State nor defense

counsel had expressed any reason why the other two jurors should be struck

while Sumlin should not.23 Given these inconsistencies, we concluded that the

affidavit lacked “any suggestion of a trial strategy for not using peremptory or

for-cause challenges on Sumlin and Sims.”24

Here, the juror in question, Gamboa, stated during voir dire that he was

biased in essentially the same manner as had the jurors in Virgil. Specifically,

Gamboa stated that he was “going to be partial” and that he would believe the

testimony of a law enforcement officer over that offered by Biagas. Despite this

admission, McKamie, like defense counsel in Virgil, failed to challenge Gamboa

for cause or use a peremptory challenge to keep him off of the jury.25 Rather

than attempt to justify his failure to challenge Gamboa—as did defense counsel

in Virgil—McKamie admitted in his affidavit that his actions were the result of

an oversight and not the product of strategic decisionmaking; an admission that

was contrary to his own interests and was not contradicted by the State.

Moreover, the record supports McKamie’s contention that his failure to challenge

Gamboa was a mistake of omission rather than a calculated choice. As soon as

the jurors were announced, McKamie objected to the trial judge and moved for

a mistrial. We have recognized the distinction between strategic judgment calls
No. 07-20401

26 See Lloyd v. Whitley, 977 F.2d 149, 158 (5th Cir. 1992).

27 Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999).

28 Virgil, 446 F.3d at 613 (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)).

29 Id. at 613 (quoting Strickland v. Washington, 466 U.S. 668, 696 (1984)).

10

and plain omissions,26 and we have emphasized that we are “not required to

condone unreasonable decisions parading under the umbrella of strategy, or to

fabricate tactical decisions on behalf of counsel when it appears on the face ofthe

record that counsel made no strategic decision at all.”27 Accordingly, we conclude

that the state appellate court’s speculation that the trial court could have

concluded that McKamie made a tactical decision notto challenge Gamboa is not

supported—and, in fact, is contradicted—by the record. Therefore, in accordance

with our precedent in Virgil, as well as with counsel’s own admission, we

conclude that McKamie’s performance was deficient and hold that the state

court decision to the contrary was unreasonable.

Furthermore, we conclude that Biagas was prejudiced by McKamie’s

deficient performance. We observed in Virgil that allowing Sumlin and

Sims—who expressly stated that they were unable to be fair and impartial—to

sit on the jury violated the law’s mandate that a juror be “willing to ‘lay aside his

impression or opinion and render a verdict based on the evidence presented in

court.’”28 And, given the importance of an impartial jury, we deemed the

outcome of Virgil’s trial to be “unreliable because of a breakdown in the

adversarial process that our system counts on to produce just results.”29

Accordingly, we held that Virgil’s defense was prejudiced and that the state

court decision to the contrary could not stand. 

Valentine attempts to distinguish Virgil (and the district court’s finding

of prejudice) by asserting that Gamboa’s bias differed from that of Sumlin and

Sims. Valentine takes the position that Sumlin and Sims were biased against
No. 07-20401

30 See TEX. R. EVID. 606(b) (“[A] juror may not testify as to any matter or statement

occurring during the jury’s deliberations, or to the effect of anything on any juror’s mind or

emotions or mental processes, as influencing any juror’s assent to or dissent from the verdict

or indictment.”).

31 Virgil, 446 F.3d at 613 (quoting United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.

1976)).

11

the defendant, as each stated that they were less likely to believe a person with

a prior criminal conviction. In contrast, she maintains that Gamboa is biased,

not against Biagas, but in favor of law enforcement testimony. In addition, she

contends that Gamboa’s alleged bias had no influence on the outcome of the trial

because the jury was never called on to assess the credibility of the officers’

testimony. Valentine’s effort to distinguish Gamboa’s bias from that of the

jurors in Virgil is without merit under the circumstances: regardless whether a

juror favors one witness or disfavors another, the fact remains that the juror is

partial. Moreover, as jurors may not testify about their deliberations,30the effect

that Gamboa’s presence on the jury had on the ability of the remaining jurors to

consider and evaluate the testimony and evidence will never be known. Given

this uncertainty, Biagas’s conviction is unworthy of confidence and, as such,

constitutes a failure in the adversarial process. “‘The jury box is a holy place.’

Our criminal justice system is predicated on the notion that those accused of

criminal offenses are innocent until proven guilty and are entitled to a jury of

persons willing and able to consider fairly the evidence presented in order to

reach a determination of guilt or innocence.”31 Biagas was deprived of such a

jury and thereby prejudiced by Gamboa’s presence. The state court decision

rejecting his claim of ineffective assistance of counsel was an unreasonable

application of clearly established federal law. 

III. CONCLUSION

In allegiance to our decision in Virgil v. Dretke, we hold that Biagas was

denied effective assistance of counsel. The district court’s grant of habeas corpus
No. 07-20401

12

relief is affirmed on this basis. We do not reach the district court’s alternative

basis for granting relief and, accordingly, we do not assess the propriety of the

district court’s sua sponte recognition of judicial error.

AFFIRMED.