dissenting:
I respectfully dissent. Quintero-Barraza’s conviction was based entirely on circumstantial evidence, arrived at only after an initially deadlocked jury was given an Allen charge. Had defendant’s counsel rendered effective assistance, there is a “reasonable probability that, but for counsel’s unprofessional efforts,” the defendant would not have been convicted. Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). Three of the attorney’s errors had a direct impact on whether the jury found the defendant guilty or innocent. Defense counsel (1) allowed the court to impanel a facially biased juror who believed the defendant to be guilty even before the trial started, (2) failed to call expert witnesses to bolster the defendant’s claim of innocence, and (3) failed to object to an Allen charge that did not have a beyond a reasonable doubt instruction.
In conjunction, these three errors affected the jury’s ability to render a fair verdict and severely “undermine[d] confidence in the outcome” of defendant’s trial. Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. at 2064, 2068. Even if we focus on each error individually, defense counsel’s failure to strike a facially biased juror constitutes, by itself, ineffective assistance of counsel.
I.
The colloquy at voir dire indicates that juror David Miller believed the defendant to be guilty even before the trial started, and that he continued to believe the burden of *1353proof to be on the defense to show the defendant is innocent:
DAVID MILLER: [Studying criminal justice kind of hard — you know — you are on the side of the law, you say, and it’s hard for me to really — in other words, just guilty until proven innocent instead of innocent until proved guilty. I don’t know.
THE COURT: Now would that be — would that be fair to the defense? Your attitude and your feeling and your background, would it be fair to the defense?
DAVID MILLER: I’d tried to be impartial, but it would be very hard because— THE COURT: Okay.
DAVID MILLER: I believe my mind is set and stuff, but I would try to be impartial.
THE COURT: You’d try but you say it’s difficult.
DAVID MILLER: It would be difficult, yeah.
DAVID MILLER: —the way I feel — the way I feel is: If you are in court, you know, you are in there for some reason and, you know, so, it’s — I’d have to be proven that he’s not guilty instead of being proven that he is guilty.
THE COURT: So, you’d put the burden on the defense?
DAVID MILLER: Yeah.
THE COURT: ---- You are not condemned. You are not criticized at all for your feelings because we might find a contract ease here for you to try to be on the jury again. I think — but I think Nevada has a one day one trial rule. So, two years from now, or however long from now, when you’re next called, but I do appreciate your candor. Thank you very much.1
Tr. at 19-21 (emphasis added).
This colloquy indicates that Miller believed his mind was “set” and that it would be “difficult” for him to be impartial. In United States v. Eubanks, 591 F.2d 513, 517 (9th Cir.1979), this circuit explicitly held that “even if ‘only one juror is unduly biased or prejudiced,’ the defendant is denied his constitutional right to an impartial jury.” Here, Miller believed the defendant to be guilty even before the trial started because, as he stated, “[i]f you are in court, you know, you are in there for some reason.” It is difficult to fathom a more biased juror than one who believes the defendant is guilty until proven innocent.
II.
The majority concludes, however, that defense counsel did not render ineffective assistance based on the following rationale:
[Counsel] was making a tactical decision in declining to strike Miller. Moreover, we must pay due respect for the oath taken by Miller given the absence of any stated intention to disregard it. Indeed, the possession of such a view of the criminal justice system does not immediately translate into an unwillingness to abide by the oath one takes as a juror. Accordingly, in deference to thé wide latitude afforded trial counsel, we will not second-guess counsel’s decision to allow Miller to remain on the panel.
Although wide latitude is afforded trial counsel in an ineffective assistance of counsel claim, there is another right at issue here. Under the Sixth Amendment, the defendant has a right to effective assistance of counsel and the right to an impartial jury.
With respect to the right to have an impartial jury, there does not appear to be any case that holds that the juror’s “oath” wipes out any bias or prejudice of the juror. Indeed, the case law suggests otherwise. In Eubanks, the Ninth Circuit did not state anywhere in its opinion that a biased or prejudiced juror no longer is biased or prejudiced simply because that juror has taken an oath.
The majority reasons, however, that it will not “second-guess counsel’s decision to allow Miller to remain” on the jury. This reasoning is confusing because either Miller is biased or he is not biased. If he is not biased, then counsel simply made no error in impan*1354eling an unbiased juror. If Miller is biased, then the issue is whether counsel can functionally waive the defendant’s right to an impartial jury.
Case law suggests that counsel cannot waive a defendant’s right to an impartial jury. In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Supreme Court stated:
The right to the effective assistance of counsel is thus the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted — even if defense counsel may have made demonstrable errors — the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated.
Here, if the prosecution had an entire jury that was partial to it, then the prosecution’s case would no longer be one that survived the “crucible of meaningful adversarial testing.” See Johnson v. Armontrout, 961 F.2d 748, 755 (8th Cir.1992) (“Trying a defendant before a biased jury is akin to providing him no trial at all. It constitutes a fundamental defect in the trial mechanism itself.”). Under Eubanks, the same holds true even if only one of the twelve jurors was biased. Eubanks, 591 F.2d at 517.
The majority characterizes counsel’s decision to allow Miller to remain on the jury as simply a matter of tactical strategy. Defense counsel stated that he “was impressed with” Miller and thought Miller “gave a very candid answer.” Simply because counsel gave a reason for his decision, however, does not render counsel’s assistance effective. Counsel’s trial tactic still cannot fall below “an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064. Here, a biased juror who is honest is still a biased juror. It is difficult to conceive of any tactical reason, let alone a reasonable tactical reason, why a defendant would want a juror, whether honest or not, who thought he was guilty even before the trial started.
In United States v. Swanson, 943 F.2d 1070, 1074 (9th Cir.1991), this circuit found ineffective assistance of counsel where the defense attorney conceded at closing argument that there was “no reasonable doubt” that the defendant “was the perpetrator of the bank robbery.” The court stated:
We cannot envision a situation more damaging to an accused than to have his own attorney tell the jury that there is no reasonable doubt that his client was the person who committed the conduct that constituted the crime charged in the indictment.
943 F.2d at 1075. Here, counsel allowed the impaneling of a juror who already believed that the defendant was the person who committed the crime. With respect to juror Miller, the prosecution did not have to prove beyond a reasonable doubt that the defendant was guilty.
The Swanson court also rejected characterizing counsel’s actions as merely a matter of tactics. The court stated, “[w]e recognize that in some cases a trial attorney may find it advantageous to his client’s interests to concede certain elements of an offense or his guilt of one of several charges.” Id. at 1076. The court, however, found no reason why the attorney would concede that “no reasonable doubt existed” as to whether his client committed the crime. Id. Here, there is no reason why defense counsel would concede to having one juror who believed that the prosecution did not have to prove beyond a reasonable doubt his client’s guilt.
III.
Perhaps defense counsel in this case deliberately committed these errors so he could get a reversal on appeal if his client was found guilty. In Swanson, however, the court rejected the government’s argument that attorneys can always intentionally engage in misconduct that would “guarantee a reversal on appeal in any case where the evidence of guilt is overwhelming.” Id. at 1076. The court stated:
There is no evidence in this record that Swanson conspired with his court appointed attorney to create reversible error in this matter____ Criminal defense lawyers are bound by the rules of professional conduct. If these rules are violated, counsel will expose himself to bar association discipline.
*1355Here, there is nothing in the record to indicate that defense counsel seeded the record for reversal. Moreover, this is not a case where the evidence is overwhelming. On the contrary, the evidence was entirely circumstantial and, even with all of defense counsel’s errors, the jury still initially deadlocked.
CONCLUSION
This was a close case at trial, with the conviction resting solely on circumstantial evidence and the jury initially deadlocking. Counsel’s errors in this case, especially his failure to strike a biased juror, directly affected the jury’s determination of the defendant’s guilt or innocence. When counsel’s action allows the impaneling of a juror who believed the defendant to be guilty until proven innocent — in violation of the Sixth Amendment guarantee of an impartial jury— that conduct falls below an objective standard of reasonableness.
ORDER
March 7, 1996
The panel has voted to deny appellant’s petition for rehearing. Judge O’Scannlain voted to reject the suggestion for rehearing en bane and Judge Merhige so recommended.
The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en bane. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35.
The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.
The panel hereby amends the opinion cited at 57 F.3d 836 (9th Cir. June 15, 1995) as follows:
. Even the district court here believed that David Miller was so biased that he expected Miller to be put on a "contract” case or another civil case two years from now.