Virgil v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 18, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-21129

Frank Virgil
Petitioner-Appellant,

versus

Doug Dretke, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division
Respondent-Appellee.

Appeal from the United States District Court
For the Southern District of Texas

Before JONES, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit
Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We confront here a situation in which two persons, both

expressly stating an inability to serve as fair and impartial

jurors, found their way onto the jury that convicted Frank Virgil

and sentenced him to thirty years in prison. Virgil, now seeking

a writ of habeas corpus, contends that counsel’s failure to

challenge for cause these two jurors deprived him of his Sixth

Amendment right to effective assistance of counsel. We agree and

hold that the state court’s decision to the contrary was an

unreasonable application of clearly established Federal law as

determined by the Supreme Court.
 I

Frank Virgil was convicted and sentenced to thirty years in

prison for causing bodily injury to an elderly person in violation

of Texas Penal Code § 22.04.1 His conviction was affirmed on

direct appeal,2 and his petition for discretionary review was

denied.3 Virgil, proceeding pro se, initiated state habeas

proceedings, and the court ordered defense counsel, John Carrigan,

to file an affidavit in accordance with the guidelines set out in

Ex parte Morse.4 The Texas Court of Criminal Appeals denied

Virgil’s petition on the findings of the trial court without

hearing or written order.

Again proceeding pro se, Virgil sought federal habeas relief

under 28 U.S.C. § 2254, claiming, among other things, ineffective

assistance of counsel. The district court denied Virgil’s habeas

petition and, sua sponte, denied Virgil a certificate of

appealability (“COA”).5 Virgil timely filed a notice of appeal.

1
Section 22.04 provides, “A person commits an offense if he intentionally,
knowingly, recklessly, or with criminal negligence, by act . . . causes to [an]
elderly individual . . . bodily injury.” TEX. PEN. CODE § 22.04(a)(3) (Vernon
2004).
2
Virgil v. Texas, No. 14-99-00214-CR, 2001 WL 123990 (Tex. App.––Hous.
[14th Dist.] Feb. 15, 2001).
3
Virgil v. State, No. 920-01 (Tex. Crim. App. Sept. 12, 2001)
(unpublished).
4
591 S.W.2d 904 (Tex. Crim. App. 1980).

5
Virgil v. Dretke, No. H-03-1183 (S.D. Tex. Oct. 20, 2003) (memorandum and
order) (unpublished).

-2-
 A single judge of this Court granted a COA on the issue of

whether Virgil’s counsel was ineffective for failing to challenge

for cause biased jurors, finding that the affidavit submitted by

Virgil’s counsel in connection with the state habeas proceeding

fell “short of demonstrating sound trial strategy inasmuch as he

failed to explain why he did not challenge for cause the five

jurors that Virgil identified as being biased.”6 Thus,

“[C]ounsel’s strategy appears to have been ‘so ill chosen that it

permeate[d] the entire trial with obvious unfairness.’”7 The judge

denied a COA on all other issues.

II

Virgil’s ineffective assistance of counsel claim centers on

the performance of his attorney during voir dire. Specifically,

Virgil contends that Carrigan was ineffective for failing to

challenge for cause Roger Sumlin, Thomas Sims, Eva Saddler, Grant

Faulconer, and Mary Jarboe (“the challenged jurors”)––all members

of the venire that sat on the petit jury. Virgil argues that each

of the five challenged jurors stated during voir dire that they

could not be fair and impartial in his case. As part of our

analysis in deciding ineffective assistance of counsel claims is

“to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the

6
Virgil v. Dretke, No. H-03-CV-1183 (5th Cir. Apr. 1, 2004) (unpublished).
7
Id. (citing Garland v. Maggio, 717 F.2d 119, 206 (5th Cir. 1983)).

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time,”8 we provide an extended discussion of the voir dire

proceeding.

Carrigan’s strategy during voir dire appears to center around

a single question. Specifically, Carrigan stated:

My general question to each of you is this and I may ask
each of you individually: Let’s assume in a hypothetical
case, you as a juror –– not necessarily in this jury
panel, but in any kind of panel –– you find out that a
defendant has been convicted before of an offense which
is not the same offense for which that person is charged
and which you are on a jury, would you –– if you served
on that particular jury, would you believe that defendant
who’s had a prior case filed against him? Would you
believe him at all or disbelieve him at all?

In other words, would you give that defendant the
same benefit of credibility as you would anybody else?
If you don’t mind, I’d like to go down the list simply by
juror numbers.9

Carrigan proceeded to ask each venireperson the above question,

varying the phrasing at times to ask whether they could be “fair”

with respect to the testimony of a person convicted of a prior

offense.10 Of the 14 venirepersons struck with peremptory

challenges, all but one responded in a fashion similar to the five

challenged jurors.

8
Strickland v. Washington, 466 U.S. 668, 689 (1984).
9
Transcript, vol. 4, at 66.
10
Carrigan’s purpose in asking this question is clear. Virgil argued self-
defense and, given the lack of eye-witnesses, was forced to take the witness
stand in his own defense. On direct examination, Carrigan brought out both of
Virgil’s prior convictions: one in 1989 for a drug-related charge, and one in
1975 for breaking into a building. Transcript, vol. 5, at 57.

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 With three of the challenged jurors, Saddler, Faulconer, and

Jarboe, their response to this question was essentially their only

testimony during voir dire. The following colloquy occurred:

MR. CARRIGAN: Okay. No. 31, is that Ms. Saddler?
A VENIREMAN: Yes. No.
MR. CARRIGAN: You could not [be fair]?
A VENIREMAN: No.
MR. CARRIGAN: Ms. Faulconer?
A VENIREMAN: No.
MR. CARRIGAN: Mr. Johnson?
A VENIREMAN: No.
MR. CARRIGAN: Ms. Jarboe?
A VENIREMAN: No.11

Both Sumlin and Sims responded in similar fashion to Carrigan’s

general question. Specifically,

MR. CARRIGAN: All right. Okay. Is it Ms. Rogers ––
Mr. Roger Sumlin.
A VENIREMAN: My answer would be no.
MR. CARRIGAN: You would not believe that witness.
A VENIREMAN: I would tend not to believe that witness.
MR. CARRIGAN: Okay. 17 [Sims], would you be able to
believe a witness under those
circumstances?
A VENIREMAN: No.12

Both Sumlin and Sims volunteered additional testimony that

Virgil now contends illustrates their inability to be impartial

jurors. Carrigan asked the venire whether relationships with law-

11
Transcript, vol. 4, at 74-75. With Saddler and Jarboe, the above passage
is the only testimony given during voir dire. Faulconer testified, in addition
to the above testimony, that his prior conviction would not affect his ability
to sit as a juror in Virgil’s case. Transcript, vol. 4, at 52. Both parties
used a peremptory challenge on Johnson, the other venireperson quoted above.
Generally, Johnson testified that his prior experience on a jury led him to
believe that all witnesses were liars. See Transcript, vol. 4, at 41-42, 83-84.
The state’s challenge for cause of Johnson, the only for-cause challenge during
voir dire, was denied by the trial judge without comment. Transcript, vol. 4,
at 41-42.
12
Transcript, vol. 4, at 70-71.

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enforcement officers would prejudice them as jurors in Virgil’s

case. Of the challenged jurors, only Sumlin responded:

MR. CARRIGAN: Okay. How many on this panel have either
been prior police officers, peace
officers or related to someone in law
enforcement? A whole bunch of you.

Well, let me put it this way: If you were
chosen on this jury panel, is there
anything about your prior experience with
having been related to a peace officer
that would disqualify you or cause you to
be prejudiced against a criminal
defendant?

Any of you that held up your hand, do you
think you would be prejudiced against the
defendant from any way because of your
association with any person in your
family or anyone that you have known was
a peace officer? Anyone would be
prejudiced at all.

* * *

MR. CARRIGAN: Okay. Anyone else on that second row?
You’re number 15?
A VENIREMAN: 16 [Sumlin].
MR. CARRIGAN: 16.
A VENIREMAN: 16. And my concern would be repeated
offenses, a pattern of past behavior,
repeated offenses.
MR. CARRIGAN: Okay. But have you had any association
in the past with police officers in your
family or friends?
A VENIREMAN: Yes, I have relatives. I’m just saying
from their experience that they’ve told
me about, repeated offenders.
MR. CARRIGAN: So therefore you could not serve as an
impartial juror in this case?
A VENIREMAN: Perhaps not.
MR. CARRIGAN: Is your answer no or yes?
A VENIREMAN: I would say no.13

13
Transcript, vol. 4, at 79-81.

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As Carrigan concluded voir dire, he asked a final, open-ended

question concerning prejudice. Of the challenged jurors, only Sims

responded:

MR. CARRIGAN: I guess what I’m asking each of you is:
Is there anything in your background
which would cause you to be prejudiced or
have an unfavorable opinion against a
defendant charged with such a crime?

Is there anything in anybody’s background
that would cause you not to be a fair and
impartial juror in Mr. Virgil’s case, in
this particular case, at this particular
time, in this courtroom?

* * *

MR. CARRIGAN: Anyone else? Your number?
A VENIREMAN: 17.
MR. CARRIGAN: You’re Mr. Sims?
A VENIREMAN: Yeah. 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.
MR. CARRIGAN: Would this cause you to be a juror who
could not be fair and impartial in this
case?
A VENIREMAN: Yeah, I believe so.
MR. CARRIGAN: All right. Not believe or is it so?
A VENIREMAN: I said: Yes, I do believe so.
MR. CARRIGAN: Okay. Thank you. I don’t know what else
I can ask you folks.14

14
Transcript, vol. 4, at 83-86.

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This sets out the bulk of the testimony of the five challenged

jurors.15 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 five challenged jurors regarding their ability to be fair.

III

A

As this case comes to us under 28 U.S.C. § 2254, our review is

limited by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), which provides that habeas relief may not be

granted unless the state court proceeding resulted in “a decision

that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court.”16 A merely incorrect state court decision is not sufficient

to constitute an unreasonable application of federal law; rather,

the decision must be objectively unreasonable.17 Habeas relief is

15
The other testimony provided by Sumlin and Sims is not relevant to our
decision. Both testified, in response to a question from the state, that they
had no problem imposing a sentence of 25 to life upon a person convicted of a
third offense. Transcript, vol. 4, at 58. In addition, Sims testified that a
prior arrest of his brother for public intoxication would not affect his ability
to be fair in Virgil’s case. Transcript, vol. 4, at 49.
16
28 U.S.C. § 2254(d)(1) (2000); see Lindh v. Murphy, 521 U.S. 320, 324-26
(1997) (holding that AEDPA applies to all federal habeas applications filed on
or after April 24, 1996).

17
See Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004); Young v. Dretke,
356 F.3d 616, 623 (5th Cir. 2004).

-8-
“inappropriate when a state court, at a minimum, reaches a

‘satisfactory conclusion.’”18

Because we review only the reasonableness of a state court’s

ultimate decision, the AEDPA inquiry is not altered when, as in

this case, state habeas relief is denied without a written

opinion.19 In this situation, we assume “that the state court

applied the proper ‘clearly established Federal law,’” and then

determine “whether its decision was ‘contrary to’ or ‘an

objectively unreasonable application of’ that law.”20 Virgil’s

ineffective assistance of counsel claim involves mixed questions of

law and fact; we review the federal district court’s factual

findings for clear error and its conclusions of law de novo.21

B

Our criminal justice system rests firmly on the proposition

that before a person’s liberty can be deprived, guilt must be

found, beyond a reasonable doubt, by an impartial decisionmaker.

The Sixth Amendment provides in part: “In all criminal

prosecutions, the accused shall enjoy the right to a speedy and

18
Morrow, 367 F.3d at 313 (quoting Williams v. Taylor, 529 U.S. 362, 410-11
(2000)).
19
See Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003) (citing
Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001), cert. denied, 535 U.S.
982 (2002); Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc)).
20
Schaetzle, 343 F.3d at 443 (quoting Canalan v. Cockrell, 315 F.3d 491,
493 & n.3 (5th Cir. 2002) (quotation omitted)).
21
See Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004); Martinez v.
Johnson, 255 F.3d 229, 237 (5th Cir. 2001).

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public trial, by an impartial jury of the State and district

wherein the crime shall have been committed.”22 Put simply, “[T]he

right to jury trial guarantees to the criminally accused a fair

trial by a panel of impartial, ‘indifferent’ jurors.”23

The Supreme Court has unfailingly protected the jury room from

juror bias in a variety of contexts, recognizing, for instance,

that extensive pretrial publicity can taint the pool of prospective

jurors to a substantial degree, warranting reversal of any

conviction stemming from such hostility.24 Likewise, the Supreme

Court polices the exercise of peremptory challenges, refusing to

allow conviction when a prosecutor’s measures of fitness for jury

service are impermissible.25 And this is consistent with the

22
UNITED STATES CONSTITUTION amend. VI (emphasis added).

23
Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Parker v. Gladden, 385
U.S. 363, 366 (1966) (per curiam) (noting that a defendant is “entitled to be
tried by 12, not 9 or even 10, impartial and unprejudiced jurors”).
24
See, e.g., Irvin, 366 U.S. at 723. In Irvin, the Court found a “pattern
of deep and bitter prejudice” throughout the community against the defendant that
precluded the seating of an impartial jury. On less egregious facts, the Court
has been unwilling to overturn convictions due to extensive pretrial publicity.
See Murphy v. Florida, 421 U.S. 794, 800-01 (1975) (refusing to overturn a
conviction where some of the jurors “had a vague recollection of the robbery with
which petitioner was charged and each had some knowledge of petitioner’s past
crimes”); Patton v. Yount, 467 U.S. 1025, 1039 (1984) (refusing to overturn a
conviction when the testimony of challenged jurors was “ambiguous” and
“contradictory”). The juror bias in this case is patent: both Sumlin and Sims
unequivocally expressed that they could not serve as fair and impartial jurors.
See text attached to notes 13 (Sumlin) and 14 (Sims).
25
See, e.g., Batson v. Kentucky, 476 U.S. 79, 96 (1986) (holding that the
Constitution forbids exclusion of jurors solely on account of race); J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 140 (1994) (holding that the Constitution
forbids exclusion of jurors solely on account of gender).

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Court’s long-held view that the impartial jury is critical in

determining guilt and punishment.26

Most relevant here are the Supreme Court decisions concerning

biased decisionmakers. Starting with Tumey v. Ohio,27 the Court has

consistently found a breakdown in the adversarial process when the

judge has a direct financial interest in the outcome of the

proceedings. “[I]t certainly violates the Fourteenth Amendment and

deprives a defendant in a criminal case of due process of law to

subject his liberty or property to the judgment of a court, the

judge of which has a direct, personal, [and] substantial pecuniary

interest in reaching a conclusion against him in his case.”28 This

is so, despite the fact that “men of the highest honor and the

greatest self-sacrifice” could serve as a decisionmaker “without

danger of injustice” and despite sincere protests by interested

judges that they can be fair.29

26
See Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that “[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to the jury, and
proved beyond a reasonable doubt”); Blakely v. Washington, 542 U.S. 296 (2003)
(applying Apprendi to Washington’s sentencing scheme that allowed judge to find
facts increasing penalty); United States v. Booker, 543 U.S. 220 (2005) (applying
Apprendi and Blakely to the United States Sentencing Guidelines); see also
Crawford v. Washington, 541 U.S. 36 (2004) (barring, except under certain
exceptions, testimonial out-of-court statements by witnesses under the Sixth
Amendment’s Confrontation Clause, thus requiring presentation to the jury).
27
273 U.S. 510 (1927); Ward v. Village of Monroeville, Ohio, 409 U.S. 57,
61-62 (1972).
28
Tumey, 273 U.S. at 523.

29
Id. at 532. In Ward, the Court extended the principle of Tumey to a
situation where the revenue produced by the mayor’s court provided a substantial
amount of the municipality’s funds. Ward, 409 U.S. at 59-60.

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 The clarity of the Supreme Court’s reading of the simple

command of the Sixth Amendment––guaranteeing that liberty will not

be deprived until guilt is found beyond a reasonable doubt by an

impartial jury––is evidenced by its consistent application by our

sister circuits under factual circumstances quite similar to those

in this case. Virgil directs our attention to the Sixth Circuit’s

decision in Hughes v. United States. There, in response to a

question from the judge concerning whether the venireperson could

be “fair in this case,” one venireperson indicated that her

relationship with law-enforcement officers would affect her

impartiality. Specifically, the following colloquy occurred:

JUROR: I have a nephew on the police force in
Wyandotte, and I know a couple of
detectives, and I’m quite close to `em.
THE COURT: Anything in that relationship that would
prevent you from being fair in this case?
JUROR: I don’t think I could be fair.
THE COURT: You don’t think you could be fair?
JUROR: No.
THE COURT: Okay. Anybody else? Okay. Where did we
leave off?

Neither the court nor defendant’s counsel followed-up with the

potential juror, and defense counsel made no attempt to remove the

juror with a peremptory or for-cause challenge. With only this

testimony, the Sixth Circuit found the potential juror actually

biased against the defendant.30

The Sixth Circuit relied, in part, on this Court’s opinion in

United States v. Nell, which found actual bias on the part of a

30
Hughes v. United States, 258 F.3d 453, 456 (6th Cir. 2001).

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venireperson that expressed a strong dislike for unions.31 There,

a defendant appealed the denial of for-cause challenges to two

jurors. This Court ordered a new trial, finding both jurors

actually biased and noting that “[d]oubts about the existence of

actual bias should be resolved against permitting the juror to

serve.”32 Both the Sixth Circuit, in Hughes, and this Court, in

Nell, found it telling that neither venireperson ever stated that

they would be able to render a fair and impartial verdict.33

We are also mindful that certain errors in the trial process

are “so basic to a fair trial” as to defy harmless error review.34

It is clearly established that the Supreme Court views the denial

of the right to an impartial decisionmaker to be such an error that

31
526 F.2d 1223, 1228-30 (5th Cir. 1976). We also note that the Eighth
Circuit, in Johnson v. Armontrout, stated that “[t]rying 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.” 961 F.2d 748, 755 (8th Cir.
1992); see also Hale v. Gibson, 227 F.3d 1298, 1319 (10th Cir. 2000) (recognizing
that prejudice results when defense counsel fails to attempt to remove from the
jury a person who has been established on voir dire to be biased).
32
Nell, 526 F.2d at 1230.
33
Hughes, 258 F.3d at 460 (“Given [the potential juror’s] express admission
of bias, with no subsequent assurance of impartiality and no rehabilitation by
counsel or by the court by way of clarification through follow-up questions
directed to the potential juror, we find [the potential juror] to have been
actually biased in this case.”); Nell, 526 F.2d at 1230 (“Never once did [the
potential juror] say that he would be able to render a fair and impartial
verdict. Rather, he reiterated how strongly he disliked unions.”).
34
Chapman v. California, 386 U.S. 18, 23 (1967); Arizona v. Fulminate, 499
U.S. 279, 309 (1991) (holding that “structural defects in the constitution of the
trial mechanism” are per se prejudicial); Brecht v. Abrahamson, 507 U.S. 619,
629-30 (1993) (holding that the existence of structural errors “requires
automatic reversal of the conviction because they infect the entire trial
process”).

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taints any resulting conviction with constitutional infirmity.35

Although we do not hold that a structural error alone is sufficient

to warrant a presumption of prejudice in the ineffective assistance

of counsel context,36 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. More so, the Supreme

Court’s treatment of the right to an impartial jury is more than a

mere backdrop to our analysis; it is the lens through which we must

examine counsel’s performance in this case.37 To that, we now turn.

C

35
See 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. 641, 647 (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, 273 U.S. at 523.
36
The Sixth Circuit adopted such an approach in Quintero v. Bell, 256 F.3d
409, 413-15 (6th Cir. 2001) (holding that counsel’s failure to object on jury-
bias grounds created a structural error that was per se prejudicial under United
States v. Cronic, 466 U.S. 648 (1984)). The Supreme Court initially vacated and
remanded in light of Bell v. Cone, 535 U.S. 685 (2002). The Sixth Circuit again
granted habeas relief, finding that the error fell into a category of presumptive
prejudice under Cronic and Cone. 368 F.3d 892 (6th Cir. 2004). The Supreme
Court denied certioari, with Chief Justice Rehnquist and Justice Thomas
dissenting. Bell v. Quintero, 125 S.Ct. 2240 (2005). In the dissents’ view, the
Sixth Circuit erred by resting on the proposition that “the presence of
structural error, by itself, is necessarily related to counsel’s deficient
performance,” which “warrants a presumption of prejudice.” Id. at 2242.
37
Ross v. Oklahoma, 487 U.S. 81, 85 (1988) (“Had [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.”); United States
v. Martinez-Salazar, 528 U.S. 304, 316 (2000) (same).

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 We granted Virgil a COA to determine “whether counsel was

ineffective in failing to use challenges for cause to remove biased

jurors.”38 To succeed, Virgil must meet the familiar two-part test

from Strickland v. Washington: deficient performance and

prejudice.39

1

To prove deficient performance under Strickland, “[A]

petitioner must demonstrate that counsel’s representation ‘fell

below an objective standard of reasonableness.’”40 We give

substantial deference to counsel’s performance, “applying the

strong presumption that counsel performed adequately and exercised

reasonable professional judgment.”41 Because we must make every

effort “‘to eliminate the distorting effects of hindsight,’”42 a

“conscious and informed decision on trial tactics and strategy

cannot be the basis for constitutionally ineffective assistance of

38
Virgil v. Dretke, No. H-03-CV-1183 (5th Cir. Apr. 1, 2004) (unpublished).
39
466 U.S. 668, 687 (1984).
40
Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S.
at 688).

41
Titsworth v. Dretke, 401 F.3d 301, 310 (5th Cir. 2005) (citing
Strickland, 466 U.S. at 689).
42
United States v. Harris, 408 F.3d 186, 189 (5th Cir. 2002) (quoting
Strickland, 466 U.S. at 689).

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counsel unless it is so ill chosen that it permeates the entire

trial with obvious unfairness.”43

Virgil contends that his counsel was constitutionally

deficient in failing to challenge for cause the five challenged

jurors who were “actually and admittedly” biased. The State

responds, first, that the challenged jurors’ statements that they

were disinclined to believe a witness with a prior conviction do

not show bias toward Virgil. Second, the State offers several

after-the-fact justifications for keeping two of the challenged

jurors on the jury.

Counsel’s performance in response to the testimony of three of

the challenged jurors––Saddler, Faulconer, and Jarboe––was not

deficient under Strickland. Each juror testified, with merely a

single “no” answer, that they could not fairly consider the

testimony of a person with a prior conviction.44 This answer must

be considered in context with the initial question asked by

Carrigan as well as the subsequent modifications. First, Carrigan

asked, “would you give [a defendant with a prior conviction] the

same benefit of credibility as you would anybody else?”45 Then,

43
Johnson v. Dretke, 394 F.3d 332, 337 (5th Cir. 2004) (citations and
internal quotation marks omitted).
44
This testimony is quite different from that in Hughes. There, the juror
testified that she could not be “fair” in a general sense, a much broader
assertion than that in this case. Hughes, 258 F.3d at 456. Here, Saddler,
Faulconer, and Jarboe only testified that they could not be fair in considering
the testimony of a witness with a prior conviction.
45
Transcript, vol. 4, at 66.

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after an objection by the prosecutor, Carrigan restated the

question: “Is a witness who has a prior criminal case, if you are

on a jury, is that witness worthy of belief?”46 In context, we

cannot say that it is unreasonable to conclude that the “no”

answers from Saddler, Faulconer, and Jarboe merely indicate that,

as between a witness with a prior conviction and a witness without,

they are more likely to believe the witness without a prior

conviction.

This is, at its heart, an honest answer. Given that evidence

of a prior conviction is admissible because it bears on the

credibility of the witness,47 the response of the potential jurors

hardly suggests a showing of bias. Rather, the law accepts the

natural inference that a prior conviction lessons the credibility

of a witness. We suspect that most potential jurors would be

inclined to disbelieve the testimony of a person with a prior

conviction. Moreover, the Supreme Court has never required that

jurors come ready to serve with a blank slate, without

46
Transcript, vol. 4, at 72.
47
The Federal Rules of Evidence specifically provide for the admissibility
of a defendant’s prior convictions in certain limited circumstances. See, e.g.,
FED. R. EVID. 609 (providing for the admissibility of prior convictions for
impeachment purposes); FED. R. EVID. 404(b) (providing for the admissibility of
prior convictions “as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident); FED. R. EVID. 413
(providing for the admissibility of prior sex crimes in sex crime prosecutions);
FED. R. EVID. 414 (providing for the admissibility of prior child molestation
crimes in child molestation prosecutions). The Texas Rules of Evidence are
similar. See, e.g., TEX. R. EVID. 609; TEX. R. EVID. 404(b); TEX. R. EVID. 412.

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preconception or understanding of the real world. As the Supreme

Court noted in Irvin v. Dowd,

To hold that the mere existence of any preconceived
notion as to guilt or innocence of an accused, without
more, is sufficient to rebut the presumption of a
prospective juror’s impartiality would be to establish an
impossible standard. It is sufficient if the juror can
lay aside his impression or opinion and render a verdict
based on the evidence presented in court.48

The reality is that the role of the juror in our government would

be weakened if our system expected each juror to lack any real-

world sense of who is or is not testifying truthfully, and we are

not convinced that this testimony alone would give rise to a valid

for-cause challenge under Texas law.49 Such a limited and natural

response is insufficient to raise any obligation on the part of

counsel to respond with a peremptory or for-cause challenge. As

such, we cannot conclude that the state court’s decision was an

unreasonable application of federal law.

We find merit, however, to Virgil’s finding of fault with

counsel’s lack of response in the face of express statements by

Sumlin and Sims conceding bias against Virgil. Sumlin stated that

48
366 U.S. 717, 723 (1961); see also Delaware v. Van Arsdall, 475 U.S. 673,
681 (1986) (“[T]he Constitution entitles a criminal defendant to a fair trial,
not a perfect one.”).
49
See Jones v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998) (“We could
not have meant that jurors must be completely impartial and free of any trace of
skepticism toward any category of witness. Complete impartiality cannot be
realized as long as human beings are called upon to be jurors. No person sitting
as a juror can completely remove his own experiences, beliefs, and values,
however hard he may try.”). Moreover, nothing in the Texas Code of Criminal
Procedure provides a for-cause challenge for a juror who tends to discredit the
testimony of a category of witnesses. See TEX. CODE CRIM. PROC. art. 35.16(a)
(Vernon 2004) (listing valid for-cause challenges).

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his relationship with law-enforcement officers would preclude him

from serving as an impartial juror.50 Sims, likewise, volunteered

that his mother’s mugging was “weighing” on him as to whether he

could be partial or impartial, finally concluding that he could not

be “fair and impartial.”51 We hold that Sumlin’s and Sims’s

unchallenged statements during voir dire that they could not be

“fair and impartial” obligated Virgil’s counsel to use a peremptory

or for-cause challenge on these jurors. Not doing so was deficient

performance under Strickland.52

Moreover, defense counsel’s conclusory affidavit, submitted in

connection with the state habeas proceedings, fails to rehabilitate

his performance, as it lacks any suggestion of a trial strategy for

not using peremptory or for-cause challenges on Sumlin and Sims.

In relevant part, counsel’s affidavit provides:

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.

50
See supra text attached to note 13.

51
See supra text attached to note 14. This testimony is much more in line
with that of the juror in Hughes. Hughes, 258 F.3d at 456 (juror responded, “No”
to question asking if she could be a “fair” juror in the defendant’s case).
52
We recognize that the issue of juror bias is a factual finding. See
Patton v. Yount, 467 U.S. 1025, 1036 (1984). Despite this, we reject the state
court’s implicit finding that these two jurors were not biased. See 28 U.S.C.
§ 2254(e)(1) (requiring the habeas applicant to rebut the presumption of
correctness given to state court factual findings “by clear and convincing
evidence”).

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 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 based upon my
voir dire.

This is lacking in two respects. First, it speaks only of

peremptory challenges and fails to indicate why for-cause

challenges were not used against Sumlin and Sims. As we have

noted, counsel’s error in this case was the failure to use either

a peremptory or a for-cause challenge on Sumlin and Sims. Second,

counsel’s affidavit fails to explain why the answers given by

Sumlin and Sims did not indicate “prejudice or bias against

[Virgil].” In light of the statements of Sumlin and Sims and

absent some explanation for keeping them on the jury, we consider

counsel’s failure to use a peremptory or for-cause challenge on

Sumlin and Sims to be constitutionally deficient.

We must also reject the State’s attempt to support counsel’s

affidavit with after-the-fact justifications for keeping Sumlin and

Sims on the jury. Specifically, the State notes that Sumlin, in

response to a question from the state, testified that he favored a

rehabilitation-based criminal justice system over a punishment-

based system, an answer favorable to the defendant. In addition,

Sims’s testimony regarding his mother’s mugging occurred at the end

of voir dire, which, according to the State, may have been a last-

ditch effort to avoid jury service.

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 We are not persuaded. These arguments have little relevance

to our inquiry, and counsel’s action in response to other

venirepersons illustrates why. Virgil’s counsel exercised

peremptory challenges on Timothy Bockmier and Pamela Oliver, two

venirepersons who offered testimony similar to Sumlin. Each

favored a rehabilitation-based criminal justice system, but also

testified that they could not be fair with respect to the testimony

of a person with a prior conviction.53 Neither the State, nor

counsel in his affidavit, give any reason why Bockmier and Oliver

should be struck while Sumlin should not, especially given Sumlin’s

testimony regarding his relationship with law-enforcement officers.

Similarly, counsel used a peremptory challenge on Lisa Fitch who

testified, like Sims, that she could not fairly consider the

testimony of a person with a prior conviction.54 Yet also like

Sims, Fitch testified near the end of voir dire that her experience

in nursing homes, seeing the rough treatment of the elderly, may

prejudice her in some way.55

Both after-the-fact justifications are equally applicable to

veniremembers that were struck by Virgil’s counsel, and both

justifications were offered by the state, not by Virgil’s counsel.

When trial counsel presents an affidavit attempting to justify his

53
Transcript, vol. 4, at 67-68 (Bockmier), 73 (Oliver).
54
Transcript, vol. 4, at 68.
55
Transcript, vol. 4, at 83-84.

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performance at trial for facially unexplainable conduct, the

justifications not evident on the record and presented for the

first time in response to a petition for writ of habeas corpus by

the state have little value. Thus, respecting the Supreme Court’s

caution in Strickland that “the purpose of the effective assistance

guarantee of the Sixth Amendment is not to improve the quality of

legal representation,”56 we find counsel’s performance in this case

to be constitutionally deficient and the state court’s decision to

the contrary to be objectively unreasonable.

2

A showing of constitutionally deficient performance is not

sufficient to sustain an ineffective assistance of counsel claim

under Strickland. Virgil must traverse two additional burdens: He

must establish that counsel’s deficient performance prejudiced his

defense; then, he must show that the state court’s decision to the

contrary was an unreasonable application of clearly established

federal law as determined by the Supreme Court. We conclude that

Virgil has met each burden.

Our inquiry into Strickland prejudice is tailored to our

conclusions under Strickland performance. Since we did not find

counsel’s performance with respect to jurors Saddler, Faulconer,

and Jarboe to be constitutionally deficient, our inquiry is only

whether Virgil’s defense was prejudiced by counsel’s failure to

56
Strickland, 466 U.S. at 689.

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challenge for cause jurors Sumlin and Sims. Furthermore, we

examine only Sumlin’s and Sims’s testimony regarding their

inability to be impartial jurors.57

Strickland’s prejudice standard is a well-rehearsed phrase in

the inferior federal courts: “The defendant must show that there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.”58 That prejudice shorthand is guided

by principles underlying the Sixth Amendment’s right to effective

counsel, and it is those principles that the state court’s

decision––denying Virgil’s ineffective assistance of counsel

claim––runs afoul of in this case.59

Strickland’s prejudice inquiry is process-based: Given

counsel’s deficient performance, do we have confidence in the

process afforded the criminally accused? “The purpose of the Sixth

Amendment guarantee of counsel is to ensure that a defendant has

57
See supra text attached to notes 13 (Sumlin) and 14 (Sims). We ignore
their testimony that they would be less inclined to believe a witness with a
prior conviction than a witness without. See supra text attached to note 12.
This testimony is consistent with the testimony of Saddler, Faulconer, and
Jarboe, see supra text attached to note 11, which we have already held to be
insufficient to establish counsel’s deficient performance. See supra section
III(C)(1).
58
Strickland v. Washington, 466 U.S. 668, 694 (1984).
59
See Williams v. Taylor, 529 U.S. 362, 391 (2000) (recognizing that while
the Strickland “reasonable probability” test can resolve “virtually all” claims
of ineffective assistance of counsel, “there are situations in which the
overriding focus on fundamental fairness may affect the analysis”).

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the assistance necessary to justify reliance on the outcome of the

proceeding.”60 Prejudice is presumed in a narrow category of

cases,61 none of which are present here. Absent mechanical rules,

“the ultimate focus of the inquiry must be on the fundamental

fairness of the proceeding whose result is being challenged.”62 We

focus on ferreting out “unreliable” results caused by “a breakdown

in the adversarial process that our system counts on to produce

just results.”63 Guiding our prejudice inquiry, the Supreme Court

requires lower federal courts to “presume” that “the judge or jury

acted according to law.”64 Most importantly for our purposes, “The

assessment of prejudice should proceed on the assumption that the

decisionmaker is reasonably, conscientiously, and impartially

applying the standards that govern the decision.”65 Even according

60
Strickland, 486 U.S. at 691-92; Nix v. Whiteside, 475 U.S. 157, 175
(1986) (noting that under Strickland, the “benchmark” of the right to counsel is
the “fairness of the adversary proceeding”); Kimmelman v. Morrison, 477 U.S. 365,
374 (1986) (“The essence of an ineffective-assistance claim is that counsel’s
unprofessional errors so upset the adversarial balance between defense and
prosecution that the trial was rendered unfair and the verdict rendered
suspect.”); see also Williams, 529 U.S. at 393 (“Cases such as [Nix] and
[Lockhart v. Fretwell, 506 U.S. 364 (1993)] do not justify a departure from a
straightforward application of Strickland when the ineffectiveness of counsel
does deprive the defendant of a substantive or procedural right to which the law
entitles him.”).
61
United States v. Cronic, 466 U.S. 648, 659 & n.25 (1984) (detailing
situations in which prejudice should be presumed); Strickland, 466 U.S. at 692;
Bell v. Cone, 535 U.S. 685, 694-98 (2002).
62
Strickland, 466 U.S. at 696.
63
Id.; see also id. at 697 (“An ineffectiveness claim . . . is an attack
on the fundamental fairness of the proceeding whose result is challenged.”).
64
Id. at 694-95.
65
Id. at 695 (emphasis added).

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the state court the deference warranted under AEDPA, these basic

principles, encapsulated in Strickland’s well-worn prejudice

standard, were unreasonably applied by the state court when it

denied Virgil’s ineffective assistance of counsel claim.

Here, we are confronted with a situation in which, due to

counsel’s failure, two persons, each expressly stating that they

were unable to serve as fair and impartial jurors, found themselves

seated on the petit jury that convicted Virgil and sentenced him to

thirty years in prison. We are required to presume “that the judge

or jury acted according to law,”66 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.”67 That did not

occur here. Given the 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] is unreliable

because of a breakdown in the adversarial process that our system

counts on to produce just results.”68

Such an unreliable result dictates the conclusion that

Virgil’s defense was prejudiced under Strickland by the sitting of

Sumlin and Sims, as each unequivocally expressed that they could

66
Strickland, 466 U.S. at 694-95.
67
Irvin v. Dowd, 366 U.S. 717, 723 (1961).
68
Strickland, 466 U.S. at 696.

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not sit as fair and impartial jurors,69 and the state court’s

decision to the contrary cannot stand. As we stated in United

States v. Nell, “The jury box is a holy place.”70 Our criminal

justice system is predicated on the notion that those accused of

criminal offenses are innocent until proven guilty and are entitled

to a jury of persons willing and able to consider fairly the

evidence presented in order to reach a determination of guilt or

innocence. Virgil was denied these basic principles when two

jurors expressed their inability to serve fairly and impartially in

his case. Had Virgil’s counsel challenged for cause jurors Sumlin

and Sims, the trial judge would have been forced to rule, a ruling

that counsel could have objected to and pursued as error on direct

appeal. There is little doubt that such an error would have been

sustained by the Texas courts on direct review.71

The process-failure in this case stems as much from the

unknown as from the known. No effort was made to explore the depth

or intensity of either Sumlin’s or Sims’s bias toward Virgil, in

particular, or criminal defendants, in general. For instance, in

response to Sims’s testimony regarding his mother’s mugging,

defense counsel remarked, “Okay. Thank you. I don’t know what

69
See supra text attached to note 13 (Sumlin) and 14 (Sims).
70
526 F.2d 1223, 1229 (5th Cir. 1976).
71
See TEX. CODE CRIM. PROC. art. 35.16(a) (9) (Vernon 2004) (providing a for-
cause challenge to a venireperson that “has a bias or prejudice in favor of or
against the defendant”).

-26-
else I can ask you folks.”72 No question was put to either Sumlin

or Sims as to whether they would be able to set aside their

preconceived notions and adjudicate Virgil’s matter with an open

mind, honestly and competently considering all the relevant

evidence. Furthermore, we cannot know the effect Sumlin’s and

Sims’s bias had on the ability of the remaining ten jurors to

consider and deliberate, fairly and impartially, upon the testimony

and evidence presented at Virgil’s trial. Each ultimate juror in

this case heard Sumlin’s and Sims’s biased statements during voir

dire; each watched as Virgil’s representative failed to make any

comment in response.

Taken together, we must say that we lack confidence in the

adversarial process that resulted in Virgil’s felony conviction and

30-year sentence. Sumlin and Sims unequivocally expressed their

inability to serve as fair and impartial jurors in Virgil’s case.

No peremptory challenge was used; no challenge for cause attempted.

By law, Virgil was prejudiced by the presence of partial jurors in

violation of his Sixth and Fourteenth Amendment rights, and we

consider the state court’s decision to the contrary to be an

unreasonable application of clearly established Federal law as

determined by the Supreme Court. Expressed in Strickland terms,

the deficient performance of counsel denied Virgil an impartial

jury, leaving him with one that could not constitutionally convict,

72
Transcript, vol. 4, at 86.

-27-
perforce establishing Strickland prejudice with its focus upon

reliability.

IV

To sum up, looking at the state court adjudication through our

AEDPA lens, we find counsel’s performance “objectively

unreasonable” under Strickland for failing to use a peremptory or

for-cause challenge in response to the testimony of jurors Sumlin

and Sims that unequivocally expressed bias against Virgil. We find

counsel’s conclusory affidavit insufficient to show that his

actions met the floor of performance mandated by the Sixth and

Fourteenth Amendments. The state court’s denial of Virgil’s habeas

claim left a defect in the trial process that “undermine[s]

confidence in the outcome” in violation of Strickland.73 The state

court’s rejection of Virgil’s ineffective assistance of counsel

claim was contrary to the Supreme Court’s decision in Strickland.74

For these reasons, we reverse the district court’s judgement

denying habeas relief and remand this case to that court with

instructions to order the State of Texas to either give Frank

Virgil a new trial or release him from custody within 90 days of

the date of the district court’s order on remand.

REVERSED and REMANDED with instructions.

73
Strickland, 466 U.S. at 694.
74
See 28 U.S.C. § 2254(d)(1).

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