IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20225

LARRY TORRES,

Petitioner - Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:04-CV-1080

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:

*

Larry Torres filed a 28 U.S.C. § 2254 petition in the Southern District of

Texas. The alleged Constitutional violations stemmed from the presence on the

petit jury of a man who alluded that his ability to be fair and impartial may be

negatively impacted by his personal experiences. The district court denied relief,

deferring to the state habeas court’s findings that trial counsel kept the juror as

part of a defense strategy. We agree and affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

September 13, 2010

Lyle W. Cayce

Clerk

 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.

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I.

Torres relies heavily upon our decision in Virgil v. Dretke. We turn first

1

to that case. A Texas jury convicted Frank Virgil for attacking an elderly person

and sentenced him to thirty years. Two jurors explained during voir dire that

they could not be fair and impartial:

DEFENSE COUNSEL: [H]ave you had any association in the past

with police officers in your family or friends?

VENIREMAN #16: Yes, I have relatives. I’m just saying from their

experience that they’ve told me about, repeated offenders.

DEFENSE COUNSEL: So therefore you could not serve as an

impartial juror in this case?

VENIREMAN #16: Perhaps not.

DEFENSE COUNSEL: Is your answer no or yes?

VENIREMAN #16: I would say no.

2

. . .

DEFENSE COUNSEL: Your number?

VENIREMAN #17: 17. . . . I don’t know that it’s going to be partial

or impartial, but my mother was mugged and they never found the

mugger. The thought keeps crossing my mind while we’re talking

about this, as far as assault on an elderly person. So it’s weighing

me because of the fact that they never did find the person. I’m

thinking about that.

 446 F.3d 598 (5th Cir. 2006). 

1

Id. at 603.

2

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DEFENSE COUNSEL: Would this cause you to be a juror who could

not be fair and impartial in this case?

VENIREMAN #17: Yeah, I believe so.

DEFENSE COUNSEL: All right. Not believe or is it so?

VENIREMAN #17: I said: Yes, I do believe so.

3

Defense counsel never challenged these two veniremen. “At no point

during voir dire did counsel attempt to clarify, confirm, or rehabilitate this

testimony. Moreover, the trial judge never expressed any concern regarding the

statements by the . . . jurors regarding their ability to be fair.” After sentencing,

4

Virgil lost his direct appeal, and the state denied his habeas petition. The

federal district court denied his § 2254 petition, but this court granted a

certificate of appealability (COA) on the question of whether Virgil’s counsel

offered effective representation in failing to challenge biased jurors. We found

that counsel had not, aware that “our review [was] limited by the Antiterrorism

and Effective Death Penalty Act of 1996.”

5

We noted the Sixth Amendment’s requirement of an impartial jury,

6

explaining “[i]t 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

Id. at 603–04. 3

Id. at 604. 4

Id.

5

Citing favorably to Hughes v. United States, 258 F.3d 453 (6th Cir. 2001), and United 6

States v. Nell, 526 F.2d 1223 (5th Cir. 1976).

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resulting conviction with constitutional infirmity.” We refused to “hold that a

7

structural error alone is sufficient to warrant a presumption of prejudice in the

ineffective assistance of counsel context,” but explained “the fundamental nature

of such rights—including the right to an impartial jury—serves as an important

guidepost in our evaluation of whether the state court’s denial of Virgil’s

ineffective assistance of counsel claim was ‘objectively unreasonable’ under

AEDPA.”

8

Guided by Strickland v. Washington and its two-part test, we first found

9

deficient performance for failing to challenge the two jurors—either for cause or

peremptorily. We were not persuaded by an affidavit submitted by defense

10

counsel explaining his inaction to the state habeas court:

I spent approximately thirty (30) minutes talking to and

questioning the jury in this case. I was able to ask all of the

questions that I thought were necessary to determine if there was

any prejudice or bias against my client. I was also able to question

the potential jurors regarding any issues that I thought might arise

in this case.

In determining the final jurors, I used all peremptory strikes

that were available to me. I have reviewed the record and

confirmed the number of strikes I used in this case. I struck all

persons whom I thought had some type of bias, prejudice or issue

Virgil, 446 F.3d at 607.

7

Id.

8

See 466 U.S. 668, 687 (1984).

9

Virgil, 446 F.3d at 610.

10

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based upon my voir dire.

11

We observed that the affidavit “lacks any suggestion of a trial strategy for not

using peremptory or for-cause challenges” and “fails to explain why the answers

given [by the two jurors] did not indicate prejudice or bias.”

12

We also concluded Virgil had established both that (1) the deficient

performance prejudiced his defense and (2) the state habeas court’s adverse

decision “was an unreasonable application of clearly established federal law as

determined by the Supreme Court.” “We are required to presume that the

13

judge or jury acted according to law, yet the law mandates a juror willing to lay

aside his impression or opinion and render a verdict based on the evidence

presented in court.” That did not happen in Virgil’s case. “Given the

14

fundamental nature of the impartial jury and the consistent line of Supreme

Court precedent enforcing it, we must conclude that ‘the result of [Virgil’s trial]

[wa]s unreliable because of a breakdown in the adversarial process that our

system counts on to produce just results.’”

15

II.

Larry Torres is 11 years into a 70 year sentence for possession of cocaine

Id.

11

Id. (quotation marks omitted).

12

Id.

13

Id. at 612–13 (citations and quotation marks omitted).

14

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

15

alteration in original).

5

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with intent to distribute. Jon Gorman served as foreman of the jury that

convicted and sentenced Torres. During voir dire, the judge asked all panelists

whether they could: honor the burden of proof and presumption of innocence,

consider the full range of punishment, and follow the Fifth Amendment if the

defendant failed to testify. Gorman did not raise any concerns in response to

these inquiries. Specifically, when explaining reasonable doubt, the trial judge

told the panel that the court needed to know of any feelings that might prevent

a panelist from being fair and impartial. One panelist raised his hand, but

Gorman did not. Yet when the prosecutor asked: “Anybody had a friend, family

member, close relative had a problem with drugs who would not be able to sit in

this case, guilt or innocence or punishment, anyone at all?” Gorman spoke up.

“I might have a problem with that, 34.” Later, Gorman approached the bench.

THE COURT: The next one I have is 34. I have just a question

mark.

PROSECUTOR: He would not consider life, your Honor.

16

THE COURT: You want to agree, Ira [Chenkin, defense counsel], or

talk?

DEFENSE COUNSEL: I would like to talk.

PROSECUTOR: Yeah, me too.

THE COURT: Mr. Gorman, 34 . . . . Are you active in the Air Force?

GORMAN: Yes, sir.

Nothing in the record shows Gorman would not consider a life sentence so the 16

prosecutor likely misspoke here.

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THE COURT: Living here now?

GORMAN: Yes, sir.

THE COURT: I’m an Air Force retiree. Good to have you here.

What is your rank?

GORMAN: E-6.

THE COURT: I was one of those once. Mr. Chenkin has a question.

DEFENSE COUNSEL: Can you consider the full range of

punishment?

GORMAN: You know, I would have a hard time and the reason is

I’m a foster parent and I have foster children living with me right

now from the State of Washington and their mother put me in the

situation that my foster daughter is in.

DEFENSE COUNSEL: I don’t understand.

GORMAN: Could I consider the full range? Yeah, I could very easily

consider the full range.

PROSECUTOR: Now I’m a little hesitant. Is there some experience

that would make you not be able to judge these facts objectively?

GORMAN: Possibly. I mean, I’ve I thought about it because it took

me a while to think about what is going on; internalizing on myself.

I need to separate my experiences from what might be at and hear

and in that case I may have a problem making a decision based on –

PROSECUTOR: This evidence?

GORMAN: Yes.

THE COURT: Whatever those situations were or are, do you think

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you can set those aside and when you are considering the evidence

in this case or do you think that is going to affect your ability to be

fair and impartial?

GORMAN: I think it would affect my ability to be fair and impartial

because they are there.

THE COURT: You don’t think you can set them aside?

GORMAN: I’ve been doing this for about five years now and there

are things I’ve seen that I think –

THE COURT: Based upon experiences, you feel like you can’t be fair

to the defendant or the State?

GORMAN: Probably more for the State.

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

GORMAN: That’s correct.

THE COURT: Question?

PROSECUTOR: No.

DEFENSE COUNSEL: No further questions.

THE COURT: Thank you, sir.

PROSECUTOR: I think we should keep him.

DEFENSE COUNSEL: Leave him alone.

No further questions were put to Gorman. Defense counsel did not move

to strike Gorman, either for cause or to exercise a peremptory challenge. Torres

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was convicted and sentenced to 70 years; appealed and lost; and did not seek

Supreme Court review.

Torres filed a state habeas petition, alleging jury bias and ineffective

assistance of counsel for failure to strike Gorman. The state habeas court (a

different judge than the one who presided over the trial) ordered Chenkin to file

an affidavit. It stated:

I have been asked to explain the reasons for my decision not

to challenge or exercise a peremptory strike against venireman Jon

Gorman at . . . trial in the primary case. I recall, based on general

voir dire discussions with the venirepanel, that I had the impression

that Mr. Gorman was going to be a defense-oriented juror. I recall

that I had developed this impression based on Mr. Gorman’s

responses to questions as they were asked by both myself and the

State, although I don’t believe Mr. Gorman’s specific responses are

reflected in the appellate record. I further recall that, because I

believed Mr. Gorman was defense-oriented, I did not wish to

question him at the bench. However, the prosecutor did want to

question Mr. Gorman, so I attempted to protect him as a defense

juror.

As Mr. Gorman began to answer questions posed by the judge,

prosecutor, and myself, I realized that he was starting to flip-flop on

several of his answers. However, I remember at the time thinking

that it would not be a bad idea to have an equivocating juror on this

case. The evidence against Larry Torres was strong, Mr. Torres was

a difficult client, and I believed it was going to be a difficult case to

win.

I thought that Mr. Gorman’s presence on the jury, if not

sufficient to result in an acquittal, would at least give us a good

chance at getting a hung jury and a mistrial. I made the strategic

decision not to challenge Mr. Gorman for cause; likewise, I chose not

to exercise a peremptory strike against him. Although some of Mr.

Gorman’s answers at the bench were not exactly favorable to the

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defense, it was still my impression that he would be a good defense

juror or, at least his presence might lead to a mistrial.

The state habeas court ruled on the merits, finding Chenkin to be credible and

the facts asserted in Checkin’s affidavit to be true: he made a strategic decision

not to challenge Gorman. The Texas Court of Criminal Appeals denied relief

based on the state habeas court’s recommendation.

Torres filed a pro se 28 U.S.C. § 2254 petition in federal district court.

Texas responded and moved for summary judgment. The district court granted

17

summary judgment, denying relief. As to juror bias, the district court deferred

to the state court fact finding that Gorman was not partial. Although his

colloquy at the bench suggested he might not be fair to Torres, Gorman’s

responses to questions about burden of proof and trial procedure outweighed any

potential bias. As to ineffective assistance, the district court again deferred to

state court fact finding that Chenkin had made a strategic choice to keep

Gorman. The court differentiated Virgil on the idea that the after-the-fact

affidavit here was more thorough and direct than the lawyer’s after-the-fact

affidavit there. This court granted a COA on the juror bias and ineffective

assistance claims.

Summary judgement in federal habeas is different than in the average civil case. See,

17

e.g., Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), abrogated on other grounds by

Tennard v. Dretke, 542 U.S. 274 (2004) (“[Section] 2254(e)(1) – which mandates that findings

of fact made by a state court are ‘presumed to be correct’ – overrides the ordinary rule that,

in a summary judgment proceeding, all disputed facts must be construed in the light most

favorable to the nonmoving party. Unless [the petitioner] can ‘rebut [ ] the presumption of

correctness by clear and convincing evidence’ as to the state court’s findings of fact, they must

be accepted as correct.” (third alteration in original)).

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III.

A.

We review the factual issues of a district court’s denial of habeas relief for

clear error and the legal issues de novo, applying the same deference to the state

court’s decision as the district court must. Torres’s § 2254 petition falls under

18

AEDPA, so we “defer to a state court’s adjudication of a claim if the claim has

been adjudicated on the merits in the state court proceedings unless the state

court decision was (1) ‘contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court,’ or (2)

‘was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.’” We must accept the state habeas

19

court’s fact finding unless rebutted by clear and convincing evidence. The jury

20

bias question is one of fact, and the ineffective assistance issue presents a

21

mixed question of law and fact.

22

B.

Contrary to what Torres claims, this case is not controlled by Virgil. In

Virgil, the two questionable jurors provided specific statements during voir dire

indicating why they could not be fair and impartial. Later, defense counsel

23

Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir. 2007).

18

Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir. 2010) (quoting 28 U.S.C. § 2254(d)). 19

 28 U.S.C. § 2254(e)(1); see also Virgil, 446 F.3d at 610 n.52. 20

See Virgil, 446 F.3d at 610 n.52. 21

See Woodfox, 609 F.3d at 789; Virgil, 446 F.3d at 604–05. 22

See Virgil, 446 F.3d at 609-10 (noting that one juror stated his relationship with law23

enforcement officers and knowledge of repeat offenders would preclude him from being

11

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provided only a “conclusory affidavit” that “fail[ed] to rehabilitate his

performance, as it lack[ed] any suggestion of a trial strategy for not using

peremptory or for-cause challenges.” In contrast, here the juror’s statements

24

on the record during voir dire were vague. Gorman implied that a “situation”

with his foster daughter’s mother would affect his ability to be fair, but he never

described an experience with drugs or drug dealers that would affect his

impartiality. Further, unlike the Virgil affidavit, Chenkin’s affidavit described

25

a trial strategy that involved Gorman’s statements and personality. Chenkin

26

believed that Gorman’s presence on the jury might result in a hung jury or

possibly an acquittal, an explanation the state habeas court credited. As the

27

impartial and the other juror stated his mother’s mugging prevented him from being

impartial).

Virgil, 446 F.3d at 610.

24

 Gorman’s nebulous conversation at the bench also differentiates this case from the 25

Sixth Circuit case we relied on in Virgil. Hughes v. United States, 258 F.3d 453 (6th Cir.

2001). In Hughes, the juror said, “I don’t think I could be fair,” in a case where the defendant

was said to have stolen a firearm from a federal marshal at gunpoint. The juror’s assessment

of her own fairness was based on her close relationship with members of the police force. The

court found these statements to be evidence of bias. In contrast, Gorman initially stated he

“would have a hard time” considering the full range of punishment. Moments later, he stated

he “could very easily consider the full range.” He never described instances involving drugs

or the police that would make him bias against the defendant.

We also found the Virgil affidavit lacking because it failed to indicate why for-cause

26

challenges were not used against the jurors in question. Virgil, 446 F.3d at 610. That problem

does not exist in this case, as Chenkin specifically stated he made a strategic decision not to

use the for-cause challenge.

This court gives “substantial deference to counsel’s performance, applying the strong 27

presumption that counsel performed adequately and exercised reasonable professional

judgment. Because we must make every effort to eliminate the distorting effects of hindsight,

a conscious and informed decision on trial tactics and strategy cannot be the basis for

constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the

entire trial with obvious unfairness.” Virgil, 446 F.3d at 608 (citations and quotation marks

12

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Texas Court of Criminal Appeals has explained, “That appellant was ultimately

assessed the maximum punishment means only that the [strategic] risk did not

pay off; it does not mean the strategy was unacceptable from the perspective of

jury selection.”

28

Torres argues that Gorman unequivocally expressed he could not be fair

and impartial. However, when the trial judge asked the panel whether anyone

was unable to properly follow the laws of presumption of innocence and burden

of proof, Gorman remained silent, indicating his ability to follow the law. The

trial judge specifically told panelists to report feelings that would hinder their

ability to apply reasonable doubt “because you may not be able to be a fair and

impartial juror.” Gorman said nothing. Moreover, Gorman’s statements at the

29

bench did not expressly indicate a clear prejudice. He said he thought his

experiences would affect his impartiality and that he would “probably” be more

for the State, but unlike the Virgil jurors, none of Gorman’s responses

definitively showed he would not be impartial.

30

omitted).

Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992) (reversing the court of 28

appeals and finding that defense counsel’s failure to strike an ex-narcotics officer venireperson

in a drug-related case could have been trial strategy).

In addition, the voir dire transcript shows that defense counsel asked panelists 29

person by person whether “You think you could be a fair and impartial juror?” 

 We have previously differentiated Virgil on this basis. See Seigfried v. Greer, 2010 30

WL 1404046, at *4, 2010 U.S. App. LEXIS 7202, at *10 (5th Cir. Apr. 7, 2010) (unpublished)

(“Although the statements made by Juror 2 hinted at possible bias against Seigfried, Juror 2

never explicitly stated that she could not be an impartial juror. In contrast to the statements

by Juror 2 during voir dire, both this court and others courts have found actual bias where a

juror forthrightly states that she could not be fair and impartial.”); White v. Quarterman, 275

F. App’x 380, 382–83 (5th Cir. 2008) (unpublished).

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IV.

The record supports the state habeas court’s findings that Larry Torres’s

lawyer had a strategy in accepting Gorman as a juror despite the late arising

impartiality concerns. The state habeas court’s application of federal law was

objectively reasonable, the standard required by AEDPA before granting relief.

31

Finding Virgil to be inapposite, we hold that Torres’s trial was constitutionally

sound and affirm the district court’s judgment denying habeas relief.

AFFIRMED.

See Virgil, 446 F.3d at 614 (“The state court’s rejection of Virgil’s ineffective 31

assistance of counsel claim was contrary to the Supreme Court’s decision in Strickland.”

(citing 28 U.S.C. § 2254(d)(1))); see also Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (reciting

that an incorrect application of federal law is not sufficient).

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