dissenting.
I respectfully dissent from the majority decision. Although on the face of the voir dire of juror Orman, it might appear that she could not be fair to the defendant, as the majority states in its citation to Johnson v. Armontrout, 961 F.2d 748, 755 (8th Cir.1992), “Absent the showing of a strategic decision, failure to request the removal of a biased juror can constitute ineffective assistance of counsel.” Id. Unlike the Johnson case, there is no basis to determine whether a strategic decision was made by counsel in this case. The only issue which was certified for this panel to answer was whether counsel’s failure to strike a juror constituted ineffective assistance. I would not find that this act alone constitutes ineffective assistance of counsel.
The majority cites Thompson v. Altheimer & Gray, 248 F.3d 621 (7th Cir.2001), to show that the failure of the trial court to strike a biased juror for cause was reversible error, but that has to do with error by the court. That issue is not certified here. Similarly, United States v. *465Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), is a direct appeal and involves court error. I fully agree with the decisions in those cases, but they do not discuss the issue before us here, the per se ineffectiveness of counsel.
Although Hughes asserts that he asked his counsel to strike juror Orman, there is no sworn statement by Hughes that he asked counsel to do so.1 As the majority opinion demonstrates, Hughes was later asked in the trial if he was satisfied with counsel, to which he replied in the affirmative. Of course, I would not let that be a final determination of the issue at hand, but it demonstrates that at that particular time during the trial, there did not seem to be any animosity between Hughes and his counsel. Moreover, although the majority finds that the silence by juror Orman in light of other additional questions on voir dire apparently means little, it is still further proof that perhaps counsel knew something about the juror of which we are not aware.
Because there is no sworn testimony in the record concerning this issue of juror bias and why the juror was not stricken, I think that a remand and order of a new trial in this case is more relief than is justified under the law. I would remand this case to the district court, but for purposes of hearing evidence on the question of why counsel decided not to strike juror Orman. Counsel has never explained why he took this action. I can think of several scenarios in which counsel might decide to keep juror Orman on the panel, even with her answers to the voir dire questions. For instance, Hughes may have requested that Orman remain on the jury. Hughes denies it now, but not under oath. In addition, there may have been something in the background of Orman that either Hughes or counsel knew, that is not obvious on the record. If counsel did not strike the juror because Hughes requested it, I would not find ineffective assistance of counsel, unless the defendant was insane, which is not alleged. I do not find that counsel’s failure to ask further questions on voir dire or to strike the juror, without counsel’s explanation, was objectively unreasonable under the criteria found in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Otherwise, a defendant could “sandbag” the court by insisting that his counsel leave a juror on the panel and then later claim that he told counsel to strike the juror. Therefore, I would remand only for a factual determination of the strategy by counsel in refusing to pursue voir dire or strike Orman and then for the court to determine whether that conduct was objectively reasonable under Strickland. A new trial is not yet justified under the current status of the record.
. There must have been a sworn statement in Johnson, for the court states: "Johnson’s trial counsel made no attempt to remove the Deri-ny jurors for cause even though he was prompted to do so by Johnson himself.” Johnson, 961 F.2d at 755.