Case: 19-10173 Document: 00515904607 Page: 1 Date Filed: 06/17/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 17, 2021
No. 19-10173
Lyle W. Cayce
Clerk
Thomas George Craaybeek,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:17-CV-107
Before Owen, Chief Judge, and Clement and Higginson, Circuit
Judges.
Stephen A. Higginson, Circuit Judge:*
Thomas George Craaybeek shot at officers who came to his home in
response to a 9-1-1 call. A jury convicted him of aggravated assault by threat
on a public servant and assessed his punishment at life imprisonment. The
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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jury foreman had worked in law enforcement, was still a reserve officer, and
was acquainted with almost every State witness. In this federal habeas
appeal, Craaybeek argues that he was denied an impartial jury because the
jury foreman was impliedly biased against him. For the reasons articulated
herein, we AFFIRM the denial of Craaybeek’s habeas petition.
I.
A.
In 2014, law enforcement received a 9-1-1 call that Thomas George
Craaybeek had shot his wife in their home. State Trooper James Lattimore
responded to a dispatch issued by the Young County Sheriff’s Department,
and when he arrived at Craaybeek’s home, an Olney police officer was also
at the scene. As the two waited for additional officers to arrive, multiple
gunshots were fired from Craaybeek’s home, and the gunfire continued after
Young County Sheriff’s deputies arrived. Craaybeek ultimately surrendered.
See Craaybeek v. State, No. 02-15-00454-CR, 2016 WL 4491225, at *1 (Tex.
App. Aug. 26, 2016).
A grand jury charged Craaybeek with aggravated assault against a
public servant in violation of Texas Penal Code § 22.02(b)(2)(B). Craaybeek
pleaded not guilty and proceeded to trial. The jury found him guilty. The
jury also determined Craaybeek’s punishment. With the discretion to choose
a term of imprisonment ranging from five years to life, the jury chose life.
This appeal centers on Craaybeek’s claim that he was denied an
impartial jury because Charlie Parker Jr., the jury foreman, was impliedly
biased against him. Craaybeek points to three reasons that Parker was biased.
First, Parker had a 26-year career in law enforcement with the Graham Police
Department and the Young County Sheriff’s Department that employed two
of the State witnesses/victims. Second, at the time of trial, Parker was a
reserve officer with the Olney Police Department, which employed four of
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the State witnesses/victims. Finally, because of his background in law
enforcement, Parker was personally familiar with eight of the nine State
witnesses/victims. 1
Parker disclosed his acquaintance with State witnesses during voir
dire. When the prosecutor listed 12 “potential witnesses or people involved
in this case,” Parker disclosed, “I know all of them.” When defense trial
counsel asked Parker whether he knew Trooper Lattimore, the State’s lead
witness, Parker stated that he had “met him a couple of times” but did not
know him “real well” and had not meaningfully interacted with him “in the
last nine years.”
Parker also disclosed his prior law enforcement career in an exchange
with trial defense counsel: “I’ve got 26 years full-time law enforcement.
Retired from Graham Police Department. I was a patrol officer and lead
investigator with the police department. Spent a year and a half or so with the
Young County Sheriff’s Office.” He also stated that he was still a reserve
officer with the Olney Police Department but had not been called “in the past
five years.”
Trial defense counsel did not challenge Parker for cause or exercise a
peremptory strike against him. Trial defense counsel did, however, challenge
other potential jurors for cause.
B.
Craaybeek’s conviction and life sentence were affirmed on appeal, and
the Texas Court of Criminal Appeals (“TCCA”) refused Craaybeek’s
1
Parker also was acquainted with the trial judge, but Craaybeek does not discuss
this in his appellate briefing.
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petition for discretionary review. On direct appeal, Craaybeek did not raise
the issue of implied juror bias.
In the habeas application he submitted to the TCCA, Craaybeek
raised for the first time the claim that the jury foreman, Charlie Parker Jr.,
was biased because of his law enforcement background and his familiarity
with most witnesses. The TCCA denied his application on the merits
without a written order. Craaybeek then filed a habeas petition in federal
district court raising three claims, one of which was, again, the implied juror
bias claim. A magistrate judge concluded that all three of Craaybeek’s claims
were meritless. In addition, the magistrate judge also concluded sua sponte
that the claim of juror bias was procedurally barred because the defense had
not challenged Parker for cause or exercised a peremptory strike against him,
thereby waiving the issue under state law. The district court adopted the
magistrate judge’s findings over Craaybeek’s written objections. The district
court denied a COA.
Craaybeek timely appealed and moved this court for a COA. We
granted a COA as to two issues: “(1) whether Craaybeek waived his claim of
implied jury bias by failing to object to the seating of the jury foreman, and
(2) if not, whether Craaybeek was denied an impartial jury because the jury
foreman was presumptively biased against him.”
II.
In a habeas appeal, we review the district court’s findings of fact for
clear error and its conclusions of law de novo, applying the same standard of
review to the state court’s decision as the district court. Buckner v. Davis,
945 F.3d 906, 909 (5th Cir. 2019), cert. denied, 140 S. Ct. 2832 (2020).
In addition, the state court’s decision is subject to the deferential
standards of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). As relevant to this appeal, we may grant habeas relief on a
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claim that a state court adjudicated on the merits if, inter alia, the
adjudication “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.” 28 U.S.C. § 2254(d)(1).
III.
The first claim on which we issued a COA is whether Craaybeek
waived his claim of implied jury bias by failing to object to the seating of the
jury foreman. But we need not answer this question. Because the TCCA
denied Craaybeek’s habeas application on the merits, the district court erred
when it concluded that federal review of Craaybeek’s implied bias claim was
procedurally barred.
It is well settled that the independent and adequate state ground
doctrine “applies to bar federal habeas when a state court declined to address
a prisoner’s federal claims because the prisoner had failed to meet a state
procedural requirement.” Coleman v. Thompson, 501 U.S. 722, 729–30
(1991), modified in part on other grounds by Martinez v. Ryan, 566 U.S. 1 (2012).
For a claim to be procedurally barred, “the last state court to consider the
claim [must have] expressly and unambiguously based its denial of relief on a
state procedural default.” Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999).
This court has consistently held that “the Texas contemporaneous objection
rule, as applied by the TCCA to [a] petition for writ of habeas corpus, is an
independent and adequate state-law procedural ground sufficient to bar
federal court habeas review of federal claims.” Amos v. Scott, 61 F.3d 333,
345 (5th Cir. 1995); see also Fisher, 169 F.3d at 300.
Here, however, the TCCA denied Craaybeek’s habeas application on
the merits: it wrote that the application was “denied without written
order”—it did not invoke any procedural rule. This constitutes an
adjudication on the merits because “[u]nder Texas law a denial of relief by
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the Court of Criminal Appeals serves as a denial of relief on the merits of the
claim.” Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). As the TCCA
has written: “In our writ jurisprudence, a ‘denial’ signifies that we addressed
and rejected the merits of a particular claim while a ‘dismissal’ means that
we declined to consider the claim for reasons unrelated to the claim’s
merits.” Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997).
The State has not argued, and the district court did not find, that
Craaybeek’s claim was waived as a matter of federal law. Rather, the district
court sua sponte determined that Craaybeek’s claim was procedurally barred
by his failure to comply with a state rule. This was error because the TCCA
denied Craaybeek’s claim on the merits and did not expressly and
unambiguously rely on state procedural default. Rather than allow this error
to decide the appeal because of Craaybeek’s failure to address it in his pro se
briefing, however, we instead address the substance of Craaybeek’s claim, as
the State invites us to do. See Busby v. Dretke, 359 F.3d 708, 720 (5th Cir.
2004) (stating this court need not always address whether a claim is defaulted
before reaching its merits).
IV.
The second claim on which we issued a COA is whether Craaybeek
was denied an impartial jury because the jury foreman was impliedly biased
against him.
“The Sixth Amendment guarantees an impartial jury, and the
presence of a biased juror may require a new trial as a remedy.” Hatten v.
Quarterman, 570 F.3d 595, 600 (5th Cir. 2009). “A juror is biased if his
‘views would prevent or substantially impair the performance of his duties as
a juror in accordance with his instructions and his oath.’” Id. (quoting Soria
v. Johnson, 207 F.3d 232, 242 (5th Cir. 2000)).
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“Actual bias exists when the juror failed to answer a material question
honestly on voir dire, and a correct response would have provided a valid
basis for a challenge for cause.” Id. (citing McDonough Power Equip., Inc. v.
Greenwood, 464 U.S. 548, 556 (1984)). “A claim of alleged bias is ordinarily
addressed in a hearing where the judge examines the juror and obtains
assurances of the juror’s impartiality.” Id. (citing Brooks v. Dretke, 444 F.3d
328, 330 (5th Cir. 2006)).
By contrast, implied bias—at issue in this case—exists when “no
reasonable person could not be affected in his actions as a juror.” Brooks, 444
F.3d at 331. In these extreme situations, “the Constitution refuses to accept
any assurances to the contrary.” Id. In other words, “[w]here a juror has a
close connection to the circumstances at hand . . . bias may be presumed as a
matter of law.” Buckner, 945 F.3d at 910 (citing Brooks, 444 F.3d at 330).
Smith v. Phillips is the leading Supreme Court case considering a claim
of implied juror bias. 455 U.S. 209 (1982); see also Remmer v. United States,
350 U.S. 377 (1956); Remmer v. United States, 347 U.S. 227 (1954). The Court
in Smith declined to presume bias as a matter of law when a juror in a murder
trial applied for a job in the district attorney’s office, a fact not disclosed until
after the conviction. Smith, 455 U.S. at 213, 221. In a concurring opinion,
Justice O’Connor clarified that despite the Court’s holding, there are “some
extreme situations that would justify a finding of implied bias” and outlined
three such examples:
. . . 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.
Id. at 222 (O’Connor, J., concurring). When considering claims of implied
juror bias, this court routinely looks to the examples in Justice O’Connor’s
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concurrence. E.g., Buckner, 945 F.3d at 912–14; Uranga v. Davis, 893 F.3d
282, 288–89 (5th Cir. 2018); Morales v. Thaler, 714 F.3d 295, 299 (5th Cir.
2013); Brooks, 444 F.3d at 330–31; Solis v. Cockrell, 342 F.3d 392, 396 (5th
Cir. 2003); Andrews v. Collins, 21 F.3d 612, 620 (5th Cir. 1994); United States
v. Scott, 854 F.2d 697, 699 (5th Cir. 1988).
Here, the state court denied Craaybeek’s state habeas application on
the merits without a written order. Therefore, under AEDPA, we must defer
to the state court’s decision unless it “was contrary to . . . clearly established
Federal law, as determined by the Supreme Court.” 28 U.S.C.
§ 2254(d)(1). 2
The State argues, for § 2254 purposes, that there is no “clearly
established” Supreme Court precedent recognizing implied juror bias. But
like recent panels of this court, we decline to “revisit[] whether this Court
recognizes the implied-bias doctrine as clearly established law,” Buckner, 945
F.3d at 915, because the facts presented, though concerning, are not extreme
ones “sufficient to trigger application of the implied bias doctrine,” Uranga,
893 F.3d at 288.
While Parker did have a background in law enforcement, was still a
reserve officer, and was acquainted with eight of the nine State witnesses,
these facts fall “outside the extreme genre of cases Justice O’Connor pointed
to in her concurring opinion in Smith v. Phillips.” Id. Parker was not “an
actual employee of the prosecuting agency,” “a close relative of one of the
participants in the trial or the criminal transaction,” or “a witness or
somehow involved in the criminal transaction.” Smith, 455 U.S. at 222.
2
“Because a federal habeas court only reviews the reasonableness of the state
court’s ultimate decision, the AEDPA inquiry is not altered when, as in this case, state
habeas relief is denied without an opinion.” Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th
Cir. 2003).
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Furthermore, his circumstance cannot be described as the functional
equivalent of one of these “extreme situations,” such as being a close relative
to an employee of the prosecuting agency. Scott, 854 F.2d at 699. Although
he was acquainted with almost every State witness, the record does not
support the conclusion that Parker had a “close relationship” with any of
them. Solis, 342 F.3d at 398–99. In fact, the record suggests the opposite:
regarding Trooper Lattimore, the State’s primary witness, Parker averred
that although he had “met him a couple of times” he did not know him “real
well” and had not meaningfully interacted with him “in the last nine years.”
Regarding the other State witnesses, the record shows only that Parker
“work[ed]” with them. The record also contains no evidence that Parker
was “otherwise emotionally involved” in the case. Id. at 399. For example,
he was not a victim of a similar crime, Buckner, 945 F.3d at 914; a victim of
Craaybeek’s crime, Uranga, 893 F.3d at 289–90 (Haynes, J., dissenting); or
facing prosecution by the trial prosecutor, Brooks, 444 F.3d at 332.
Finally, Parker’s candid and full disclosure of his prior employment,
current employment, and familiarity with State witnesses coupled with trial
counsel’s inquiry into these circumstances and decision to not strike or
challenge Parker for cause undermine a determination of implied bias. See
Smith, 455 U.S. at 222 (describing events that would support a finding of
implied bias as “revelation[s]”). Counsel elicited, for example, that Parker
“ha[d] a problem with officers that overstep the laws . . . .” Parker even
stated that he had left police work to join a state office that was “gas” to law
enforcement’s “fire”: “you don’t get them anywhere close to each other.”
Without caselaw assessing a multiplicity of factors in the implied juror
bias context, and under AEDPA’s deferential standard, we are unable to
conclude that Craaybeek’s claim warrants habeas relief. Significantly, we
emphasize that Parker disclosed the affiliations and acquaintances at issue
during voir dire, and trial counsel examined him as to his ability to remain
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impartial. While a juror’s assurance that he can be fair and impartial is
irrelevant in a true implied bias context, Brooks, 444 F.3d at 331, trial
counsel’s full exploration of Parker’s connections was akin to the posttrial
hearing remedy outlined in Smith, 455 U.S. at 221.
V.
Although it is an open question whether a claim of implied juror bias
is clearly established federal law, the facts Craaybeek alleges do not fall within
the “extreme situations” in which courts have presumed bias as a matter of
law. We therefore AFFIRM the district court’s denial of Craaybeek’s
habeas petition.
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