Harris v. Konteh

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0693n.06
Filed: September 21, 2006

No. 04-4020

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

GREGORY HARRIS,
Petitioner-Appellant,

On Appeal from the
v. United States District Court for
the Northern District of Ohio
KHELLEH KONTEH ,
Respondent-Appellee.

______________________________

Before: KENNEDY and COLE, Circuit Judges; VARLAN, District Judge*

KENNEDY, J. Appellant Gregory Harris seeks review of the district court’s denial of his

petition for a writ of habeas corpus, which he submitted to challenge his state conviction pursuant

to 28 U.S.C. § 2254 on the grounds that his trial counsel was constitutionally ineffective. Mr. Harris

continues to assert that his counsel’s failure to challenge an allegedly biased juror for cause or to

employ a peremptory challenge to remove the juror constitutes ineffective assistance of counsel. The

district court denied this habeas petition, and we AFFIRM this result, although we do not agree with

all of the analysis of the district court.

On June 20, 2001, Mr. Harris was indicted by a grand jury on four counts: (1) felonious

assault, in violation of Ohio Revised Code § 2903.11(A)(2), with a firearm specification under §

2941.145; (2) carrying a concealed weapon, in violation of § 2923.12; (3) possessing a weapon while

*
The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
under disability, in violation of § 2923.13(A)(2); and (4) tampering with evidence, in violation of

§ 2921.12(A)(1). Mr. Harris was tried before a jury. The jury convicted Mr. Harris on all four

counts. He was sentenced to a term of ten years in prison.

After his conviction, and with new counsel, Mr. Harris appealed his sentence, alleging five

assignments of error. The only assignment of error relevant to the present proceeding is Mr. Harris’s

first: “Appellant was denied effective assistance of counsel when his attorney failed to challenge

prospective juror Barber for cause or to exercise a peremptory challenge on her.” On August 2,

2002, the state appellate court affirmed on all issues except for the third assignment of error

concerning the sufficiency of evidence on the concealed weapon charge, which the court of appeals

found well taken. That count was dismissed. Accordingly, Mr. Harris was resentenced on

September 10, 2002, to ten years’ imprisonment.

On August 12, 2002, Mr. Harris, pro se, filed in the state court of appeals a motion for

reconsideration. That court denied the motion on August 29, 2002. Prior to entry of the court order

denying the motion, Mr. Harris filed a pro se appeal with the Supreme Court of Ohio. Mr. Harris

asserted, in part, that he “was denied the effective assistance of counsel when his attorney failed to

challenge pr[o]sective juror Barber for cause or to exercise a peremptory challenge on her.”

On January 24, 2002, Mr. Harris, pro se, filed in the Court of Common Pleas, Lucas County,

Ohio, a petition to vacate or set aside the judgment. Mr. Harris raised two claims, both alleging

ineffective assistance of counsel. Although his petition made a request for an evidentiary hearing,

his responses to the state’s motion to dismiss and motion for summary judgment make no mention

of the need for an evidentiary hearing pertaining to ineffective assistance of counsel with respect to

the voir dire. On April 26, 2002, the Court of Common Pleas dismissed Mr. Harris’s petition on

2
summary judgment. Mr. Harris filed a pro se “motion for leave to file delayed motion for new trial”

in the state court of appeals, which was denied on November 15, 2002. Neither of these proceedings

was appealed to the Supreme Court of Ohio.

Mr. Harris then filed this action for a writ of habeas corpus based on two grounds. He

appeals, however, only the denial of his claim of ineffective assistance of counsel. Mr. Harris based

his claim of ineffectiveness on the fact that his attorney, Thomas J. Szyperski, did not challenge for

cause or exercise a peremptory challenge to strike Ms. Barber from the jury. When the Ohio Court

of Appeals examined this issue, it attributed Mr. Szyperski’s decision to retain Ms. Barber to trial

strategy. The court referenced case law indicating that “counsel’s decisions as to which jurors to

excuse and which ones to keep are considered to be a part of trial strategy” and “strategic choices

of counsel are presumed to be sound.” The Ohio Court of Appeals applied that law to the facts of

the case and found it “important to note that several times during voir dire defense counsel took the

time to consult with appellant, which indicates that counsel was carefully considering the potential

jurors.” The court also expressed the view that “Mrs. [B.] was simply being truthful with defense

counsel,” noting that “jurors naturally will attach more credibility to the testimony of some witnesses

than to others.” Additionally, the Ohio Court of Appeals ultimately decided that it was “unable to

find that there is a reasonable probability that the verdict as to the charge would have been different

if counsel had excused Mrs. [B].”

The district court held that the state court did not unreasonably apply the law when the state

court found that: (1) the multiple times Mr. Harris’s counsel conferred with Mr. Harris during the

voir dire indicated strategic decision-making by counsel, and (2) Mr. Harris was not prejudiced by

the performance of his trial counsel because the testimony of the police officers did not go to the

3
issue of guilt, explaining that “none of the officers who testified witnessed the shooting” and the

“key witnesses as to that charge were the victim, his wife and his neighbor.” Thus, the district court

ruled that counsel was not ineffective and denied Mr. Harris’s habeas corpus petition. The district

court found that the issues could “be resolved from the record” and “an evidentiary hearing [was]

not required.” This appeal followed.

BACKGROUND

In the course of the voir dire, Mr. Harris’s attorney had engaged in a pattern of questioning

prospective jury members, conferring with his client, and ultimately using three of Mr. Harris’s four

peremptory challenges to strike three members of the jury venire. Neither Mr. Szyperski nor the

prosecutor, Gary G. Cook, moved to strike a juror for cause. At one point, the court advised the jury

that it was appropriate for the lawyers to “come to the Bench [and] turn and look at [the jury],”

emphasizing that it was “important [for] Mr. Szyperski to consult with his client during the process

here of exercising the challenges.” The court and the prosecutor also questioned potential jury

members. Bonnie L. Barber was one of the individuals ultimately empaneled to sit on the jury for

Mr. Harris’s trial. The voir dire questions directed at Ms. Barber and her responses, as excerpted

from the trial transcript, included the following:

THE COURT: . . . I’m going to ask you your occupational status[, and i]f you have
children who are outside the home and employed, what . . . their occupational status
is. . . . Ms. Barber?

MS. BARBER: . . . I have a son that’s a Toledo detective . . . .

...

MR. COOK: . . . How do you feel about having to make a decision that’s going to
affect people’s lives? . . . I’m using the plural because obviously there is a defendant
in this case, Mr. Harris, and obviously there are people that are going to have to come

4
to the witness stand to have to testify about what happened here. And . . . the
allegations are that Mr. Harris shot a gun at another person. So obviously there’s
another person involved and there’s an effect on that person’s life. . . . [A]nyone else
have a problem with that?

MS. BARBER: I do. . . . I don’t like the idea of I have to make a decision to put
someone away or I just don’t like that idea.

...

MR. COOK: How did you feel knowing that you don’t decide whether or not there’s
a punishment, but knowing that you have to make a decision? . . .

MS. BARBER: I’m not comfortable making a decision like that.

MR. COOK: Okay. Is it a comfort that you will be able to get past . . . ?

MS. BARBER: I’m sure I could get past it.

MR. COOK: But it’s not a comfortable feeling?

MS. BARBER: It’s not comfortable. I’ll be honest.

...

MR. COOK: . . . I’m going to read off a couple of names of some potential witnesses
here. . . . Is anybody aware of these people?

MS. BARBER: I know of them.

MR. COOK: And do you know them personally, so your knowledge of these people
would make a difference as to whether or not you could make a decision?

MS. BARBER: No, No.

...

MR. SZYPERSKI: . . . Ms. Barber?

MS. BARBER: Yes.

MR. SZYPERSKI: . . . You mentioned that you have a son who is a detective?

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MS. BARBER: Uh-huh.

MR. SZYPERSKI: What type of work on the police department and it’s Toledo
Police?

MS. BARBER: Right.

MR. SZYPERSKI: You mention that you know of Detective Navarre?

MS. Barber: Uh-huh.

MR. SZYPERSKI: And you may know of some of the other uniform officers that Mr.
Cook mentioned?

MS. BARBER: Yeah. I know of them.

MR. SZYPERSKI: You ever meet any of those --

MS. BARBER: I have met the chief of police when he was a young boy because he’s
from our neighborhood.

MR. SZYPERSKI: He turned out all right, huh?

MS. BARBER: Yeah, he did.

MR. SZYPERSKI: Where was -- where did he grow up?

MS. BARBER: Point Place.

MR. SZYPERSKI: Point Place. Best place any place, right?

MS. BARBER: Right.

MR. SZYPERSKI: That’s what they say. In any event, what type of work does your
son do?

MS. BARBER: He’s only been a detective since June and he has like personal
attacks. Like rape.

MR. SZYPERSKI: Crimes against persons?

MS. BARBER: Right.

6
MR. SZYPERSKI: Does he live close to you or --

MS. BARBER: Yes. He lived out in the Point. He doesn’t live with me, no, but he
lives in our neighborhood.

MR. SZYPERSKI: Is he married?

MS. BARBER: Yes.

MR. SZYPERSKI: And he’s been a police officer for --

MS. BARBER: Fourteen years.

MR. SZYPERSKI: What did he do before becoming a detective? A variety of
things?

MS. BARBER: Just a regular police officer.

MR. SZYPERSKI: Driving patrol car?

MS. BARBER: Uh-huh.

MR. SZYPERSKI: Did he do traffic work sometimes?

MS. BARBER: He worked the East Side. I do know that.

MR. SZYPERSKI: Do you ever talk to him about his work?

MS. BARBER: He doesn’t volunteer. If I asked him, he’ll tell me. You know, if I
see something in the paper and I ask him about it, he might, you know, tell me, but
he does not volunteer his work.

MR. SZYPERSKI: Okay. Do you feel that in this case we’re going to hear testimony
from police officers --

MS. BARBER: Uh-huh.

MR. SZYPERSKI: -- do you feel that you’re going to place a little more weight with
the testimony of the officers than a layperson?

MS. BARBER: To be honest with you, yes.

MR. SZYPERSKI: You do?

7
 MS. BARBER: Yes.

MR. SZYPERSKI: And would it be safe to say that even if I told you that you
shouldn’t do that, more important, the judge said, would it be safe to say, being
honest as you have all morning -- and I know this has been a little difficult for you.

MS. BARBER: I guess. I guess because my son is a policeman. Maybe that’s why.

MR. SZYPERSKI: Exactly. That’s why I’m asking you these questions.

MS. BARBER: Right.

MR. SZYPERSKI: But would it be safe to say that if you were deliberating and there
was a question of just the fact alone he’s a cop, therefore I’m going to give him a
little -- I’m going to give him the benefit of the doubt. Would that be your position?

MS. BARBER: I don’t know.

MR. SZYPERSKI: All right. Well, you’re backing off a little now.

MS. BARBER: See, I guess -- I guess I --

MR. SZYPERSKI: I’m not trying to argue with you.

MS. BARBER: I guess I lean towards the police.

MR. SZYPERSKI: You lean toward the police.

MS. BARBER: Right.

At the conclusion of the voir dire, the judge gave the attorneys the opportunity to make

challenges for cause and peremptory challenges at the bench. Both Mr. Szyperski and Mr. Cook

expressed that they did not wish to challenge anyone for cause. After the court confirmed the state’s

intent to pass for cause, Mr. Szyperski paused to confer with his client. Upon returning to the bench,

Mr. Szyperski confirmed that his defendant passed on challenges for cause. Next, Mr. Cook passed

on his turn to use a peremptory challenge. Mr. Szyperski, for his first turn, struck juror number

eleven. The state subsequently continued to pass on each of its turns. Before Mr. Szyperski used

8
his second peremptory challenge, he again excused himself from the bench, stating that he was

“going to have to go back to [his] client.” It was at this time that the court interjected to explain to

the jury that it was proper for the attorneys to be looking at them, engaging in whispered discussions

at the bench, consulting with clients and each other, and exercising peremptory challenges. Upon

his return to the bench, Mr. Szyperski stated that “[a]fter long deliberation, [he wished to strike juror]

number one.” Before using his third peremptory challenge, Mr. Szyperski again departed from the

bench, saying he would “be right back,” and struck another juror immediately upon his return. On

his final turn, Mr. Szyperski once more excused himself from the bench and, after returning, passed

on the last challenge. Ms. Barber remained on the jury.

At trial, the jury heard testimony from a number of law enforcement officials.1 The first

police officer to take the stand testified that no useable fingerprints were found on the gun recovered

by the arresting officers, and he stated that the police did not conduct a gunpowder residue test on

Mr. Harris’s hands after his arrest. The jury also heard testimony from the responding detective, who

stated that, though he surveyed the area where the gun was found, he was not able to locate any shell

casings in the vicinity, nor did his search of the victim’s house and surrounding area discover any

bullet holes. Another police officer testified that he saw the suspect place his hand near his hip area

“almost as if he was trying to hold something or grab something,” he heard a shot fired after Mr.

Harris was out of sight, and, when the officer apprehended Mr. Harris, he did not find a gun in the

suspect’s possession. An additional officer testified to finding a gun in the area and also to

unsuccessfully searching for a shell casing.

1
The following account of the law enforcement officials’ testimony has been construed from
the Court of Appeals of Ohio’s decision, which is not contested with respect to these issues.

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 Mr. Harris appeals the district court’s denial of the ineffective assistance ground of his habeas

petition, asserting that Ms. Barber was biased, as evidenced by the fact that her son is a detective

with the Toledo Police Department and her voir dire statements indicated that she would give more

weight to the testimony of police officers than to non-law enforcement witnesses.

ANALYSIS

I. Mr. Harris’s habeas petition will be denied because the district court’s determination that the

Ohio Court of Appeals’s decision that his counsel was not ineffective was reasonable. That court

had sufficient evidence to conclude that Mr. Szyperski’s retention of Ms. Barber on the jury was a

strategic decision and was not unreasonable under Supreme Court decisions. However, we conclude

that it was unreasonable for the district court to accept the Ohio Court of Appeals’s determination

that police testimony was insignificant to Mr. Harris’s conviction. When the Ohio Court of Appeals

determined that Mr. Harris was not prejudiced by his attorney’s decision to retain Ms. Barber, it

made the finding that police testimony was not significant to the case for the purpose of showing that

the attorney’s decision to keep a juror predisposed to believe the police, which was the error alleged,

would not have had any effect on the trial’s result. However, as we conclude that retaining Ms.

Barber on the jury does not constitute an error for the purpose of finding an attorney ineffective, the

district court’s error in accepting the Ohio Court of Appeals’s conclusion as to the prejudice prong

does not demand further consideration.

Pursuant to 28 U.S.C. § 2254(d), a federal court:

May not grant a writ of habeas to a petitioner in state custody with respect to any
claim adjudicated on the merits in state court unless the adjudication--

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 (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 unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.

An ineffective assistance of counsel claim poses a mixed question of fact and law. Olden v. United

States, 224 F.3d 561, 565 (6th Cir. 2000). The district court applies the second clause of 28 U.S.C.

§ 2254(d)(1) when reviewing a mixed question, and thus reviews the state court’s decision under the

“unreasonable application” standard. Biros v. Bagley, 422 F.3d 379, 386 (6th Cir. 2005). In order

for the court to find an “unreasonable application,” it must determine that the state court’s decision

was “objectively unreasonable,” that is, “more than incorrect or erroneous.” Wiggins v. Smith, 539

U.S. 510, 520-21 (2003). Strickland v. Washington supplies the clearly established law applicable

to this case. 466 U.S. 668 (1984). In Strickland, the Supreme Court ruled that, in order for a

counsel’s performance to be deemed ineffective, the petitioner “must show that counsel’s

representation fell below an objective standard of reasonableness” and “that counsel’s performance

prejudiced the petitioner.” Id. at 687-88.

We cannot find that the district court abused its discretion in accepting as reasonable the state

appellate court’s finding that the decision of Mr. Harris’s attorney not to strike Ms. Barber was one

of strategy. Examination of the voir dire that occurred prior to trial demonstrates that Mr. Harris’s

attorney engaged in a pattern of consulting his client when exercising his strikes. As the Ohio Court

of Appeals concluded, such repeated consultations reasonably indicate that the attorney was carefully

considering each potential juror, and thus his decision to retain Ms. Barber was strategic. While it

is unclear whether Mr. Harris’s attorney consulted with his client specifically about Ms. Barber

11
and/or obtained his client’s permission to retain her on the jury, it is apparent from the voir dire

transcript that he returned from the bench to speak with Mr. Harris before asserting each of his three

challenges. Circumstances even prompted the trial court to explain to the jury that it was appropriate

for the attorney to examine the jurors, consult with his client, and exercise peremptory challenges

at that stage in the process.

Despite Mr. Harris’s assertion that his counsel’s course of conduct “had no reasonable basis

in effectuating [his] interest,” examination of the record as a whole suggests that the decision to keep

Ms. Barber on the jury would be a reasonable defense strategy. There is no indication that Ms.

Barber had any personal bias against Mr. Harris. During voir dire, Ms. Barber expressed the

defendant-friendly sentiment that she would be uncomfortable making the decision to imprison

someone. Her responses reflect an honesty and self-awareness of her inclinations that might be

appealing to a defense attorney. Additionally, any bias that Ms. Barber did harbor was not in support

of the prosecution and against the defense but rather showed favoritism to police witnesses. In this

case, police testimony was both favorable and unfavorable to Mr. Harris. While police provided

damaging testimony about the discovery of the gun in the area where Mr. Harris allegedly ran, law

enforcement officers also provided accounts that would benefit Mr. Harris if believed. Officers

testified that they did not find shell casings or bullet holes on the scene, that there were no usable

fingerprints recovered from the gun, that a gunpowder residue test was not conducted on Mr. Harris’s

hands, and that Mr. Harris, when tackled, did not have a gun in his possession.

In addition to our examination of the record for this case, we must also remain mindful that

our law dictates that courts presume that the strategic choices of trial counsel are sound. Strickland,

466 U.S. at 689. This court has even stated that “counsel is accorded particular deference when

12
conducting voir dire,” emphasizing that “[a]n attorney’s actions during voir dire are considered to

be matters of trial strategy.” Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001).

However, inspection of the record indicates that the Court of Appeals of Ohio did err in

concluding that the police officers’ testimony was inconsequential in the disposition of the case.

Law enforcement officials testified to viewing Mr. Harris with his hand near his hip area “trying to

hold something or grab something” and to recovering the gun from the area where Mr. Harris was

allegedly seen running. As Mr. Harris was not in possession of the gun when apprehended, nor was

he linked to the gun via fingerprints or residue, the testimony of these officers provided information

that was critical to the prosecution’s portrayal of the crime. Nevertheless, as we find that counsel’s

decision to retain Ms. Barber was a strategic decision, the district court’s error as to the significance

of the officers’ testimony, which relates to the prejudice prong of the Strickland test, does not

demand further proceedings in order to deny the ineffective assistance of counsel claim.

II. Additionally, we find that the district court did not abuse its discretion by denying Mr.

Harris’s request for an evidentiary hearing, as the trial record is sufficient to conclude that counsel’s

decision not to strike Ms. Barber was made because of strategy, not incompetence. The district court

reasonablely concluded that there was ample evidence indicating that Mr. Harris’s attorney acted

strategically. No factual issue requiring an evidentiary hearing remains in dispute. While concerns

for fairness might seem to advise in favor of granting an evidentiary hearing, we cannot ignore the

language of § 2254(e)(2) and “Congress’ intent to avoid unneeded evidentiary hearings in federal

habeas corpus.” Williams v. Taylor, 529 U.S. 420, 436 (2000). Here, the district court determined

that an evidentiary hearing was not required, and, as explained above, the record was sufficient to

support such a determination.

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 CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment denying the writ of

habeas corpus.

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R. GUY COLE, JR., Circuit Judge, dissenting.

Because I would remand this case for an evidentiary hearing to determine why Harris’s

counsel failed to remove Mrs. Barber from the jury, I respectfully dissent.

I.

A district court should grant an evidentiary hearing if the petitioner can demonstrate that:

“(1) the grounds he alleges are sufficient to secure his release from custody, (2) relevant facts are in

dispute, and (3) the state court did not provide a full and fair evidentiary hearing.” Washington v.

Renico, --- F.3d ---, 2006 U.S. App. LEXIS 18747 at *24 n.4 (6th Cir. 2006) (citing Bowling v.

Parker, 344 F.3d 487, 512 (6th Cir. 2003)). Under AEDPA, a district court should not hold an

evidentiary hearing unless the habeas petitioner “failed to develop the factual basis of a claim in

State court proceedings” and he shows “a factual predicate that could not have been previously

discovered through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2)(A)(ii). If a petitioner

survives this hurdle, Rule 8 of the Rules Governing § 2254 Proceedings as adopted by the Supreme

Court sets forth the procedure a district court must employ when determining whether to conduct an

evidentiary hearing. See Rule 8 Advisory Committee’s Note (Rule 8 does not “supercede the

restrictions on evidentiary hearings contained in 28 U.S.C. § 2254(e)(2).”). Under Rule 8, “the judge

must review the answer, any transcripts and records of state-court proceedings, and any [other]

materials . . . to determine whether an evidentiary hearing is warranted.”

We review a district court’s decision not to conduct an evidentiary hearing for an abuse of

discretion. Alley v. Bell, 307 F.3d 380, 389 (6th Cir. 2002). A district court has abused its discretion

15
when we are left with a definite and firm conviction that the trial court committed a clear error of

judgment. Eagles, Ltd. v. American Eagle Found, 356 F.3d 724, 726 (6th Cir. 2004) (quotation

omitted). Further, “[a] district court abuses its discretion when it relies on clearly erroneous findings

of fact, improperly applies the law, or uses an erroneous legal standard.” Yolton v. El Paso Tenn.

Pipeline Co., 435 F.3d 571, 577 (6th Cir. 2006) (quotation omitted).

A.

As a threshold matter we must first determine whether Harris “seeks to apply a rule of law

that was clearly established at the time of his conviction in the state court.” Miller, 385 F.3d at 672

(citation omitted). I would find that he does. Harris, in claiming that his trial counsel was

constitutionally ineffective in not seeking to remove Barber from the jury either “for cause” or with

a peremptory challenge, relies on the Supreme Court’s holding in Strickland v. Washington, 466 U.S.

668 (1984). Strickland, which was clearly established law at the time of Harris’s trial, “established

a two-prong test to evaluate claims of ineffective assistance of counsel pursuant to the Sixth

Amendment.” Miller, 385 F.3d at 672. “First, the petitioner ‘must show that counsel’s

representation fell below an objective standard of reasonableness.’” Id. (quoting Strickland, 466

U.S. at 689). “‘Judicial scrutiny of counsel’s performance must be highly deferential, and a fair

assessment of attorney performance requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.’” Id. (quoting Strickland, 466 U.S. at

689). “Second, the petitioner must show that counsel’s performance prejudiced the petitioner.” Id.

(citing Strickland, 466 U.S. at 689). In other words, “the petitioner must ‘show that there is a

16
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.’” Id. (quoting Strickland, 466 U.S. at 689).

Supreme Court precedent clearly establishes that the denial of the right to be tried by an

impartial decisionmaker is an error that taints any resulting conviction with constitutional infirmity.

See, e.g., Neder v. United States, 527 U.S. 1, 8 (1999) (holding that the presence of a biased

decisionmaker is structural error “subject to automatic reversal”); Edwards v. Balisok, 520 U.S. 461,

469 (1997) (“A criminal defendant tried by a partial judge is entitled to have his conviction set aside,

no matter how strong the evidence against him.”); Johnson v. United States, 520 U.S. 461, 469

(1997); Rose v. Clark, 478 U.S. 570, 577–78 (1986); Tumey v. Ohio, 273 U.S. 510, 523 (1927). The

right to an impartial jury “is the lens through which [this Court] must examine counsel’s

performance in this case.” Id. (citing Ross v. Oklahoma, 487 U.S. 81, 85 (1988) (in a direct appeal,

“[h]ad [the biased juror] sat on the jury that ultimately sentenced petitioner to death, and had

petitioner properly preserved his right to challenge the trial court’s failure to remove [the juror] for

cause, the sentence would have to be overturned”)).

It is likewise clear that the primary purpose of voir dire is to “select an impartial jury.”

Mu’Min v. Virginia, 500 U.S. 415, 431 (1991). See also McDonough Power Equip. v. Greenwood,

464 U.S. 548, 554 (1984) (“One touchstone of a fair trial is an impartial trier of fact - - ‘a jury

capable and willing to decide the case solely on the evidence before it.’ . . . Voir dire examination

serves to protect that right by exposing possible biases.” (quoting Smith v. Phillips, 455 U.S. 209,

217 (1982))). Further, in determining whether a juror is biased, the question “is plainly one of

historical fact.” Patton v. Yount, 467 U.S. 1025, 1036 (1984). If “a juror [swore] that he could set

aside any opinion he might hold and decide the case on the evidence, and [if] the juror’s protestation

17
of impartiality [should be] believed,” we will say that a juror is not biased. Id. A juror is considered

to be biased if she cannot “conscientiously apply the law and find the facts.” Wainwright v. Witt, 469

U.S. 412, 423 (1985).

Finally, it is clearly established that “[a]n attorney undoubtedly has a duty to consult with the

client regarding ‘important decisions,’ including questions of overarching defense strategy.” Florida

v. Nixon, 543 U.S. 175, 187 (2004) (citing Strickland, 466 U.S. at 688). It is also clear that there are

“‘basic rights that the attorney cannot waive without the fully informed . . . consent of the client.’”

New York v. Hill, 528 U.S. 110, 114–15 (2000) (quoting Taylor v. Illinois, 484 U.S. 400, 417–18

(1988)). One such basic right is the right to an impartial jury as guaranteed by the Sixth

Amendment. See United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000). If a biased juror is

seated because of error, rather than strategy, a new trial is warranted and a reviewing court need not

weigh Strickland’s prejudice prong. See, e.g., id. at 316–17 (citing Parker v. Gladden, 385 U.S. 363,

366 (1966) (a defendant is “entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced

jurors”)). See also Neder, 527 U.S. at 8.

Therefore, I believe that Harris has met his threshold burden of showing that the law he seeks

to apply was clearly established by the Supreme Court at the time of his conviction.

B.

I recognize the distinct possibility that Harris’s counsel refrained from striking Barber as a

juror as part of a calculated strategy. However, based on the record before us, I do not believe that

any court, including the state appellate court, is able to determine whether Harris’s attorney

consciously employed this strategy, nor whether Harris approved of it. The record only indicates that

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Harris and his attorney conversed privately during the course of voir dire. If, in fact, Barber was left

on the jury due to the ineffective assistance of Harris’s counsel rather than for permissible strategic

reasons, I believe that her bias is evident in that she never swore that she could put aside her

preference for police testimony and decide the case on the evidence. See Patton, 467 U.S. at 1036.

The state appellate court found, as did the district court, that Harris’s counsel consulted with

Harris several times during voir dire. However, the state appellate court did not determine whether

Harris, in those conversations, was made aware of any trial strategy related to Barber or whether he

consented to keeping Barber on the jury panel; the appellate court merely assumed that Harris and

his counsel were conferring about which jurors to excuse. In determining that Harris was not

prejudiced by the presence of a biased juror, I believe that the state appellate court made an

unreasonable application of clearly established constitutional law. See Edwards, 520 U.S. at 469 (“A

criminal defendant tried by a partial judge is entitled to have his conviction set aside, no matter how

strong the evidence against him.”). Further, even assuming that the state appellate court correctly

appreciated Strickland’s prejudice prong in the context of juror bias, it is clear to me from the record

that the only evidence linking Harris to the firearm used in the shooting was the testimony of the

police officers; therefore, the state appellate court made an unreasonable determination of the facts

in determining that police testimony was unimportant. See 28 U.S.C. § 2254(d).

C.

I would find that the district court erred in its determination that the record was sufficient in

two regards: first, the district court incorrectly concluded that Strickland’s prejudice prong must be

analyzed when a possibly biased juror is present; and, second, the record does not indicate whether

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Harris’s trial counsel failed to remove Barber because of a permissible strategic reason with the

informed consent of his client, or because he was constitutionally ineffective.

Because Harris can show that: if he is correct he should be released from custody, relevant

facts surrounding the nature of his interaction with his counsel are in dispute, and the state court did

not conduct an evidentiary hearing, see Bowling, 344 F.3d at 512, I believe that he is entitled to an

evidentiary hearing. I would find that the district court, therefore, abused its discretion in failing to

hold an evidentiary hearing to determine the facts necessary to resolve Harris’s habeas petition.

IV.

For the foregoing reasons, I would remand this case to the district court for an evidentiary

hearing.

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