United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 6, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 01-40354
JUAN MONTELONGO SOLIS,
Petitioner-Appellant,
versus
JANIE COCKRELL, Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
Before HIGGINBOTHAM, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
In this federal habeas petition, Juan Montelongo Solis
challenges his 1994 Texas state conviction for burglary of a
habitation on the ground that a juror’s belief that Solis and his
brothers had a reputation for breaking into houses biased the juror
against him as a matter of law. We cannot agree, and affirm the
district court’s denial of habeas relief.
I.
Solis was tried in Hidalgo County, Texas in December 1994.
The charge was that Solis stole carpenter’s tools from the garage
of Gloria Martinez in San Juan, Texas. Solis had worked for
Martinez’s husband, who was a carpenter, earlier in the week of the
burglary. The jury convicted Solis and the trial court sentenced
him to sixty years’ imprisonment.
During jury selection, the judge instructed Solis to stand up
so that the jurors could see him, and told the venire, “We want you
to look at him because, obviously, if you’re related to him or you
know something about him, it would be inappropriate for you to be
a juror in this case. These lawyers will be asking you about it.”
The prosecutor inquired if any of the jurors were from San Juan;
two jurors, Cantu and Rodriguez, raised their hands and said that
they were. The prosecutor asked them, in the presence of the rest
of the venire, whether they knew or had ever seen Solis. The
prosecutor also told the members of the venire that if there was
anything they would rather answer in private than in front of the
rest of the panel, “just let us know and we’ll talk to you
individually with the Court.” Despite these inquiries, Juan Tellez
did not mention whether he knew or had ever heard of Solis, and was
selected as a juror.
During jury deliberations, the jury foreperson, Lopez, sent a
note to the trial judge indicating that “one of the jury members
lives close to the accused. We need your advice.” The judge
referred the jury to the portion of the charge instructing them not
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to consider or discuss any matters not in evidence, including any
outside information the jurors might have about any persons
connected to the case. Shortly thereafter the jury returned a
guilty verdict.
After his conviction, Solis filed a motion for new trial,
asserting that juror Tellez, the individual the jury foreperson had
referred to in her note to the trial judge, had possessed outside
information about Solis that should have been revealed during voir
dire and that tainted the jury verdict. The trial court held a
hearing, at which Tellez testified that he lived “[n]ot more than
two blocks” from Solis and that he had known of Solis and his
family for “more than 20 years because [he] used to work with his
dad ... harvesting fruit.” Tellez also admitted at this hearing
that during jury deliberations, he had informed the other jurors
that “him [Solis] and some of his brothers will do that ... break
into people’s homes.” In a confusing response, Tellez testified
that, at the time he revealed this to the other jurors, he thought
that perhaps Solis was not guilty of the charged offense, because
“whatever [Solis] took, it was returned. And it could have been an
agreement between him and the man [Mr. Martinez].” However, Tellez
further stated that he ultimately decided to vote to convict based
“on the evidence in this case.”
Foreperson Lopez testified that Tellez’s statements came after
all twelve of the jurors had voted to convict, in response to her
question whether anyone wanted to say anything more before she sent
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out the verdict. Lopez stated that after Tellez started talking
about his outside knowledge of Solis, the other jurors told him to
stop talking because the information was irrelevant to the case.
At that point, Lopez sent the note to the judge asking for his
advice because one of the jurors lived close to Solis.
The trial court denied the motion for new trial on the basis
that Solis failed to prove that “the information that was known by
Juror Tellez in any way, form, or fashion [a]ffected the judgment
[of guilty] in this case.” A Texas court of appeals affirmed.
Solis then filed his state habeas application, contending for the
first time that Tellez was biased against him as a matter of law.
However, the state trial court and Texas Court of Criminal Appeals
erroneously concluded that Solis had raised this claim on direct
appeal, and found that he was barred from presenting the claim in
habeas proceedings.
In his federal habeas application, he again raised the implied
bias issue. The magistrate judge to whom the case was assigned
recommended denying the claim based upon a 1972 Ninth Circuit case,
Hinojos v. Black, which held that two jurors’ belief, at the time
of deliberations, that the defendant had been involved in other
offenses similar to the one for which he was on trial did not
warrant habeas relief.1 The district court accepted the magistrate
1
Hinojos v. Black, 462 F.2d 621 (9th Cir. 1972). The full
extent of the Hinojos court’s discussion of its implied bias issue
is as follows:
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judge’s report and recommendation, but granted Solis a certificate
of appealability on this issue.
II.
Both parties agree that the Texas state courts erroneously
rejected the petitioner’s implied bias claim on procedural grounds
because they believed that Solis had raised this claim on direct
appeal. We therefore review the petitioner’s claim de novo rather
than under the deferential standards provided in the Antiterrorism
and Effective Death Penalty Act (AEDPA).2
“The Sixth Amendment requires that in all criminal
The misconduct of the two jurors ... falls short of the
kind of constitutional defect which would justify relief
under 28 U.S.C. § 2254 in the district court.
There was no showing of a fraudulent concealment of
bias, nor of any other exceptional circumstances that
would justify deviation from the rule that affidavits of
jurors cannot be used to impeach their verdict.
Id. at 622.
2
Miller v. Johnson, 200 F.3d 274, 281 n.4 (5th Cir. 2000)
(“Review is de novo when there has been no clear adjudication on
the merits.”); see 28 U.S.C. § 2254(d) (stating deferential AEDPA
standards).
Respondent argues that the issue should be reviewed only for
plain error because, although the defendant filed written
objections to the magistrate judge’s report and recommendation,
they were not sufficiently “specific,” because they were “no more
than a paragraph in length” and did not take issue with the
specific case law upon which the magistrate judge relied, but
rather only objected to her conclusion that his Sixth Amendment
rights were not violated. See Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (holding that a
failure to file objections requires that an appellate court review
a claim only for plain error). However, we find that Solis’s
objections were sufficient for us to apply de novo review.
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prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury. The Amendment prescribes no
specific tests. The bias of a prospective juror may be actual or
implied; that is, it may be bias in fact or bias conclusively
presumed as [a] matter of law.”3 Solis’s claim focuses only on
juror Tellez’s alleged implied bias – not on any actual bias. In
her concurrence in Smith v. Phillips, Justice O’Connor reasoned
that while in the vast majority of cases a hearing to determine
whether the juror was actually biased against the defendant is
constitutionally sufficient, “in certain instances a hearing may be
inadequate for uncovering a juror’s biases.”4 In those “extreme
situations,” a court may find the juror biased as a matter of law.5
Examples of such circumstances “might include a revelation that the
juror is an actual employee of the prosecuting agency, that the
juror is a close relative of one of the participants in the trial
or the criminal transaction, or that the juror was a witness or
somehow involved in the criminal transaction.”6
3
United States v. Wood, 299 U.S. 123, 134 (1936) (internal
quotation marks omitted).
4
455 U.S. 209, 222 (1982) (O’Connor, J., concurring).
5
Id.
6
Id. In McDonough Power Equipment, Inc. v. Greenwood, five
Justices of the Court, writing in two separate concurrences,
affirmed the continuing vitality of the implied bias doctrine. 464
U.S. 548, 556-57 (1984) (Blackmun, J., concurring) (“[I]t remains
within a trial court’s option, in determining whether a jury was
biased, to order a post-trial hearing at which the movant has the
opportunity to demonstrate actual bias or, in exceptional
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Although the Supreme Court has never explicitly upheld a claim
of implied bias, in Smith Justice O’Connor suggested that the Court
has implicitly done so in reversing a conviction in Leonard v.
United States, where the petitioner had been convicted in two
successive trials of forging and uttering endorsements on
government checks and of transportation of a forged instrument in
interstate commerce.7 “The jury in the case tried first ...
announced its guilty verdict in open court in the presence of the
jury panel from which the jurors who were to try the second case
... were selected.”8 The second jury ultimately contained five
jurors who had heard the verdict in the first trial.9 In reversing
the defendant’s judgment of conviction, the Leonard Court quoted
with approval the Solicitor General’s statement that “[p]rospective
jurors who have sat in the courtroom and heard a verdict returned
against a man charged with [a] crime in a similar case immediately
prior to the trial of another indictment against him should be
circumstances, that the facts are such that bias is to be
inferred.”); id. at 558 (Brennan, J., concurring) (“[A] court
should recognize that [t]he bias of a prospective juror may be
actual or implied; that is, it may be bias in fact or bias
conclusively presumed as [a] matter of law.” (internal quotation
marks omitted)).
7
Id. at 223-24 (citing Leonard v. United States, 378 U.S.
544, 544 (1964)).
8
Leonard, 378 U.S. at 544.
9
Id.
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automatically disqualified from serving at the second trial.”10
Following Justice O’Connor’s concurrence in Smith our circuit
has recognized the implied bias doctrine, albeit with carefully
watched limits. In United States v. Scott, we quoted Justice
O’Connor’s formulation of implied bias and went on to presume bias
on the part of a juror who failed to disclose during voir dire that
his brother was a deputy sheriff in the sheriff’s office that had
performed some of the investigation in the case.11 In Andrews v.
Collins, however, we cautioned that “the [Supreme] Court has not
looked favorably upon attempts to impute bias to jurors,” and that
only “extreme situations” would justify such a finding.12 There we
rejected a contention that a juror’s attenuated familial connection
with the victim warranted a presumption that the juror was biased.13
The victim’s grandson had, prior to the victim’s death, been
married to the juror’s daughter.14 However, the grandson had died
prior to the victim’s death, and no evidence suggested that the
juror even knew that he had at one time been related to the
10
Id.
11
854 F.2d 697, 699-700 (5th Cir. 1988).
12
21 F.3d 612, 620 (5th Cir. 1994) (internal quotation marks
omitted).
13
Id. at 619-21.
14
Id. at 620.
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victim.15 We “refuse[d] to impute bias” to the juror on the basis
of such a “tenuous relationship” between him and the victim.16
Similarly, in United States v. Wilson we held that “friendship with
the victim of a defendant’s alleged crime does not, standing alone,
justify a finding of bias.”17
In United States v. Bishop we declined to presume juror bias
when a juror failed to disclose during voir dire that she had
previously been convicted of a felony, because she explained that
she did so only because her lawyer had told her that since she had
received deferred adjudication she need not tell anyone about it,
such as when applying for a job.18 Bishop considered two Ninth
Circuit cases which found bias as a matter of law – in one case, a
prosecution for homicide, a juror failed to reveal during voir dire
that her brother had been murdered and that she had been the victim
of a number of crimes,19 and in the other the juror had failed to
15
Id.
16
Id. at 621 (internal quotation marks omitted).
17
116 F.3d 1066, 1087 (5th Cir. 1997). Although an unrelated
portion of Wilson was reversed en banc, see United States v. Brown,
161 F.3d 256 (5th Cir. 1998), the part of the panel opinion dealing
with the implied bias issue remains intact. See Brown, 161 F.3d at
257 n.1 (“[W]e vacated only Part IX C of the panel opinion by our
grant of rehearing en banc. The panel opinion as to Brown’s other
convictions and the convictions of all other defendants-appellants
remains unaffected.”).
18
264 F.3d 535, 554-57 (5th Cir. 2001).
19
Id. at 555 (citing Dyer v. Calderon, 151 F.3d 970 (9th Cir.
1998)).
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disclose his prior assault conviction even though he had served six
months in jail for it.20 We concluded that, unlike in those cases,
no evidence suggested that the juror had intentionally kept secret
her prior conviction, and there were no other “troubling
circumstances such as a relationship with one of the
participants.”21
Of the handful of implied bias cases decided by our court,
Willie v. Maggio is the most analogous to Solis’s case.22 In
Willie, two defendants, Willie and Vaccaro, were tried separately
for the rape and murder of a Louisiana woman.23 Four individuals
who were part of the jury venire in Vaccaro’s case later became
part of the jury in Willie’s case.24 Those jurors had sat through
voir dire in Vaccaro’s case, and had been privy to Vaccaro’s
attorney’s description of his client’s defense, which was to pin
the blame on Willie.25 For example, Vaccaro’s counsel asked the
venire,
[L]et’s say Mr. Vaccaro was ... drunk or on pills or
whatever, and not himself, and ... Willie says hold her
hands and [Vaccaro] doesn’t know what’s going on, he
20
Id. (citing Green v. White, 232 F.3d 671 (9th Cir. 2000)).
21
Id. at 556.
22
737 F.2d 1372 (5th Cir. 1984).
23
Id. at 1376.
24
Id. at 1377.
25
Id. at 1377-78.
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holds her hand[s] and Mr. Willie comes up to her and
kills her. Mr. Vaccaro didn’t know he was going to kill
her.... [I]n that situation, would you automatically vote
first degree murder on a case like that?26
We explained that “any venireman who sat through very much of [the
voir dire], as the four jurors at issue here did, would have come
away with the understanding that Vaccaro’s defense would be that it
was Willie” who stabbed the victim “while Vaccaro sat by, totally
surprised by the events that unfolded, perhaps intoxicated or
drugged or both.”27
Contrastingly, Willie’s defense at trial was that Vaccaro had
killed the woman and Willie, who had been under the influence of
drugs and alcohol, did not know Vaccaro was going to kill her.28
During voir dire in Willie’s case, the judge questioned each of the
four jurors about whether they could decide the case based solely
on the evidence presented, and each affirmed that they could.29 In
his habeas petition, Willie argued that the jurors should be
presumed to have been prejudiced against him.30
The court began its analysis by stating that
[a] juror is presumed to be biased when he or she is
apprised of such inherently prejudicial facts about the
defendant that the court deems it highly unlikely that
26
Id. at 1378.
27
Id.
28
Id.
29
Id.
30
Id. at 1378-79.
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the juror can exercise independent judgment, even if the
juror declares to the court that he or she will decide
the case based solely on the evidence presented.31
It then discussed Leonard’s holding that “prospective jurors who
have heard a verdict returned against an individual prior to that
person’s trial on a similar charge should be automatically
disqualified,”32 and a similar case, Rideau v. Louisiana, in which
the Supreme Court “presumed that the jury was prejudiced where a
twenty-minute film of the defendant’s confession was broadcast
three times by a television station in the community where the
crime and the trial took place.”33 The Willie court took from these
cases that “when jurors have participated in a defendant’s prior
conviction, or his guilt [in regard to the crime at issue or a
prior crime] appears to have been conclusively established in their
presence, prejudice may be inevitable.”34
However, we also noted in Willie that the Sixth Amendment does
not require “‘that the jurors be totally ignorant of the facts and
issues involved’” in a case and that “important cases can be
expected to arouse the interest of the community, and hardly any
prospective juror will not have some impression or opinion about
31
Id. at 1379.
32
Id.
33
Id. (citing 373 U.S. 723 (1963)).
34
Id.
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the merits of the case.”35 We further reasoned that the Supreme
Court has not “readily presume[d] that a juror is biased solely on
the basis that he or she has been exposed to prejudicial
information about the defendant outside the courtroom.”36 Although
in Marshall v. United States the Court reversed a defendant’s drug
conviction because the jurors “were exposed to various news
accounts disclosing that Marshall had previously been convicted of
forgery” and that “he and his wife had been arrested for other
narcotics offenses,”37 in Murphy v. Florida “the Court explained
that Marshall’s conviction was reversed in the Court’s exercise of
its ‘supervisory power to formulate and apply proper standards for
enforcement of the criminal law in the federal courts,’ and not as
a matter of constitutional compulsion.”38 The Willie court took
from Murphy that, “in the context of federal habeas proceedings,
the fact that a juror was ‘exposed to a defendant’s prior
conviction or to news accounts of the crime with which he is
charged’ does not ‘presumptively deprive[] the defendant of’” his
35
Id. (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)).
36
Id.
37
Id. at 1380 (citing Marshall v. United States, 360 U.S. 310
(1959)).
38
Id. (quoting Murphy v. Florida, 421 U.S. 794, 797 (1975))
(some internal quotation marks omitted).
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constitutional rights.39
Applying this law we declined to presume bias on the part of
the four jurors who sat through Vaccaro’s voir dire, because they
heard only Vaccaro’s defense theory; neither the prosecutor nor
Vaccaro’s attorney had disclosed any facts or evidence.40 We
reasoned, “[t]hat these jurors heard a lawyer’s theory of the
events that directly contradicted the theory that Willie advanced
at trial is not sufficient to cause us to presume prejudice and
order habeas relief.”41
III.
Contrary to Willie, Solis asks us to presume bias on the part
of Tellez “solely on the basis that he [had] been exposed to
prejudicial information about the defendant outside the courtroom.”
Although Solis attempts to draw upon Leonard, we find Leonard to
have been a more extreme case, not simply where a juror heard
outside rumors about the defendant’s criminal behavior, but instead
where several jurors actually witnessed the defendant get convicted
of a case markedly similar to the one they were asked to decide.
Moreover, looking to other cases embracing the implied bias
39
Id. (quoting Murphy, 421 U.S. at 799). The Willie court
explained that the Marshall rule, which “afforded the defendant
more protection from prejudice than is constitutionally required,”
is not applicable in habeas settings. Id. at 1381 n.10.
40
Id. at 1380-81.
41
Id. at 1381.
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doctrine, we find that most have done so because the juror had a
close relationship with one of the important actors in the case or
was otherwise emotionally involved in the case, usually because the
juror was the victim of a similar crime.42 Noting this delineation
42
Cf. United States v. Greer, 285 F.3d 158, 172 (2d Cir. 2000)
(“[W]e have cautioned that automatically presumed bias deals mainly
with jurors who are related to the parties or who were victims of
the alleged crime itself.” (internal quotation marks omitted)).
The implied bias doctrine has its place only in a narrow set of
circumstances. For cases embracing the doctrine, see, for example,
Green v. White, 232 F.3d 671 (9th Cir. 2000) (upholding a habeas
petitioner’s implied bias claim where a juror purposefully hid his
prior conviction to get on the jury and stated, during jury
deliberations, that he knew the defendant was guilty the moment he
saw him, and he wished he could get a gun and kill the defendant
himself); Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998) (upholding
an implied bias claim where a juror, in a murder case, refused to
admit during voir dire that her brother had been murdered, that
certain of her relatives had been accused of committing crimes, and
that she herself had been a frequent crime victim); Hunley v.
Godinez, 975 F.2d 316 (7th Cir. 1992) (sustaining an implied bias
claim after the jurors, who were in a burglary/murder case, had
been deadlocked but then voted to convict after several of their
rooms had been burglarized during the night at the hotel at which
they were sequestered); United States v. Scott, 854 F.2d 697 (5th
Cir. 1988) (presuming bias on the part of a juror who failed to
disclose that his brother was a deputy sheriff in the sheriff’s
office that had performed some of the investigation in the case).
Far more numerous are those cases in which courts have refused
to apply the doctrine. See, e.g., Jones v. Cooper, 311 F.3d 306
(4th Cir. 2002) (finding no implied bias where a juror stated that
several of her relatives had been subjected to arrests or jury
trials; that she had gone to the store at which the crime occurred
the day after the murder and robbery; that she had strong,
religiously-motived views in favor of the death penalty; and that
she knew that the defendant had previously received a death
sentence); United States v. Greer, 285 F.3d 158 (2d Cir. 2002)
(rejecting a claim of implied bias because a juror was asked by an
acquaintance of the defendant to lend a “sympathetic ear” to the
defense and was the brother of a person to whom the defendant had
distributed drugs); United States v. Tucker, 243 F.3d 499 (8th Cir.
2001) (rejecting the defendant’s allegations that a juror was
presumptively biased against him because the defendant, who had
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some courts have cautioned that bias should not be inferred unless
the facts underlying the alleged bias are such that they “would
inherently create in a juror a substantial emotional involvement,
adversely affecting impartiality.”43 In such cases a defendant may
show that a trial court’s attempts to determine whether the juror
is actually biased inadequately protect the defendant’s right to a
fair trial, because the allegedly prejudicial circumstances may be
affecting the juror in ways the juror may not realize or may cause
the juror to knowingly withhold the truth from the inquiring court.
We believe the hearing conducted by the trial court, which
turned up no prejudice to Solis from Tellez’s knowledge, was
sufficient to preserve Solis’s constitutional rights. Nothing
suggests that Tellez had a reason to lie to the district court or
any emotional involvement that would have tainted Tellez’s view of
the case in ways the trial court could not discern. Tellez’s
belief as to Solis’s reputation did not rise to the level of a
previously been governor of Arkansas, had denied clemency to the
juror’s husband, a prison inmate); United States v. Powell, 226
F.3d 1181 (10th Cir. 2000) (rejecting an implied bias claim where
a juror, in a kidnapping and sexual assault case, had a daughter
who had been raped ten years before).
43
Powell, 226 F.3d at 1188-89 (internal quotation marks
omitted); see also United States v. Gonzalez, 214 F.3d 1109, 1112
(9th Cir. 2000) (explaining that courts are most likely to presume
bias if “[the] case present[s] a relationship in which the
potential for substantial emotional involvement, adversely
affecting impartiality, is inherent” (internal quotation marks
omitted)); United States v. Frost, 125 F.3d 346, 379 (6th Cir.
1997) (same).
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structural error requiring reversal;44 it was not an “extreme
situation” beyond a probing inquiry into the presence of actual
bias.
AFFIRMED.
44
The remedy for a valid implied bias claim is a new trial.
See Dyer v. Calderon, 151 F.3d 970, 973 n.2 (9th Cir. 1998) (“The
presence of a biased juror cannot be harmless; the error requires
a new trial without a showing of actual prejudice. Like a judge
who is biased, the presence of a biased juror introduces a
structural defect not subject to harmless error analysis.”
(citations omitted)); Johnson v. Armontrout, 961 F.2d 748, 756 (8th
Cir. 1992) (“The presence of a biased jury is no less a fundamental
structural defect than the presence of a biased judge. We find
this claim outside the gamut of harmless error analysis.” (citation
omitted)). But see Fitzgerald v. Greene, 150 F.3d 357, 365 (4th
Cir. 1998) (subjecting juror bias claims to harmless error
analysis). As Justice O’Connor suggested in Smith, such an extreme
remedy should be reserved only for “extreme situations” not
amenable to actual bias analysis.
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