Larry Torres v. Rick Thaler, Director

Filing

UNPUBLISHED OPINION FILED. [07-20225 Affirmed ] Judge: CDK , Judge: PEH , Judge: EMG Mandate pull date is 10/04/2010 [07-20225]

Larry Torres v. Rick Thaler, Director

Doc. 0

Case: 07-20225

Document: 00511232169

Page: 1

Date Filed: 09/13/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 07-20225 September 13, 2010 Lyle W. Cayce Clerk L A R R Y TORRES, Petitioner - Appellant v. R IC K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, C O R R E C T I O N A L INSTITUTIONS DIVISION, Respondent - Appellee

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:04-CV-1080

B e fo r e KING, HIGGINBOTHAM, and GARZA, Circuit Judges. P E R CURIAM:* L a r r y Torres filed a 28 U.S.C. § 2254 petition in the Southern District of T e x a s . The alleged Constitutional violations stemmed from the presence on the p e t it jury of a man who alluded that his ability to be fair and impartial may be n e g a t iv e ly impacted by his personal experiences. The district court denied relief, d e fe r r in g to the state habeas court's findings that trial counsel kept the juror as p a r t of a defense strategy. We agree and affirm.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Dockets.Justia.com

Case: 07-20225

Document: 00511232169

Page: 2

Date Filed: 09/13/2010

No. 07-20225 I. T o r r e s relies heavily upon our decision in Virgil v. Dretke.1 We turn first t o that case. A Texas jury convicted Frank Virgil for attacking an elderly person a n d sentenced him to thirty years. Two jurors explained during voir dire that t h e y could not be fair and impartial:

D E F E N S E COUNSEL: [H]ave you had any association in the past w it h police officers in your family or friends? V E N I R E M A N #16: Yes, I have relatives. I'm just saying from their e x p e r ie n c e that they've told me about, repeated offenders. D E F E N S E COUNSEL: So therefore you could not serve as an im p a r t ia l juror in this case? V E N I R E M A N #16: Perhaps not. D E F E N S E COUNSEL: Is your answer no or yes? V E N I R E M A N #16: I would say no.2 ... D E F E N S E COUNSEL: Your number? V E N I R E M A N #17: 17. . . . I don't know that it's going to be partial o r impartial, but my mother was mugged and they never found the m u g g e r . The thought keeps crossing my mind while we're talking a b o u t this, as far as assault on an elderly person. So it's weighing m e because of the fact that they never did find the person. I'm t h in k in g about that.

1

446 F.3d 598 (5th Cir. 2006). Id. at 603.

2

2

Case: 07-20225

Document: 00511232169

Page: 3

Date Filed: 09/13/2010

No. 07-20225 D E F E N S E COUNSEL: Would this cause you to be a juror who could n o t be fair and impartial in this case? V E N I R E M A N #17: Yeah, I believe so. D E F E N S E COUNSEL: All right. Not believe or is it so? V E N I R E M A N #17: I said: Yes, I do believe so.3 D e fe n s e counsel never challenged these two veniremen. "At no point d u r in g voir dire did counsel attempt to clarify, confirm, or rehabilitate this t e s t im o n y . Moreover, the trial judge never expressed any concern regarding the s t a t e m e n t s by the . . . jurors regarding their ability to be fair."4 After sentencing, V ir g il lost his direct appeal, and the state denied his habeas petition. The fe d e r a l district court denied his § 2254 petition, but this court granted a c e r t ific a t e of appealability (COA) on the question of whether Virgil's counsel o ffe r e d effective representation in failing to challenge biased jurors. We found t h a t counsel had not, aware that "our review [was] limited by the Antiterrorism a n d Effective Death Penalty Act of 1996." 5 W e noted the Sixth Amendment's requirement of an impartial jury,6 e x p la in in g "[i]t is clearly established that the Supreme Court views the denial o f the right to an impartial decisionmaker to be such an error that taints any

3

Id. at 603­04. Id. at 604. Id.

4

5

Citing favorably to Hughes v. United States, 258 F.3d 453 (6th Cir. 2001), and United States v. Nell, 526 F.2d 1223 (5th Cir. 1976).

6

3

Case: 07-20225

Document: 00511232169

Page: 4

Date Filed: 09/13/2010

No. 07-20225 r e s u lt in g conviction with constitutional infirmity."7 We refused to "hold that a s t r u c t u r a l error alone is sufficient to warrant a presumption of prejudice in the in effe c t iv e assistance of counsel context," but explained "the fundamental nature o f such rights--including the right to an impartial jury--serves as an important g u id e p o s t in our evaluation of whether the state court's denial of Virgil's in e ffe c t iv e assistance of counsel claim was `objectively unreasonable' under A E D P A ."8 G u id e d by Strickland v. Washington and its two-part test,9 we first found d e fic ie n t performance for failing to challenge the two jurors--either for cause or p e r e m p t o r ily .1 0 We were not persuaded by an affidavit submitted by defense c o u n s e l explaining his inaction to the state habeas court:

I spent approximately thirty (30) minutes talking to and q u e s t io n in g the jury in this case. I was able to ask all of the q u e s t io n s that I thought were necessary to determine if there was a n y prejudice or bias against my client. I was also able to question t h e potential jurors regarding any issues that I thought might arise in this case. I n determining the final jurors, I used all peremptory strikes t h a t were available to me. I have reviewed the record and c o n fir m e d the number of strikes I used in this case. I struck all p e r s o n s whom I thought had some type of bias, prejudice or issue

7

Virgil, 446 F.3d at 607. Id. See 466 U.S. 668, 687 (1984). Virgil, 446 F.3d at 610.

8

9

10

4

Case: 07-20225

Document: 00511232169

Page: 5

Date Filed: 09/13/2010

No. 07-20225 b a s e d upon my voir dire.1 1 W e observed that the affidavit "lacks any suggestion of a trial strategy for not u s in g peremptory or for-cause challenges" and "fails to explain why the answers g iv e n [by the two jurors] did not indicate prejudice or bias." 1 2 W e also concluded Virgil had established both that (1) the deficient p e r fo r m a n c e prejudiced his defense and (2) the state habeas court's adverse d e c is io n "was an unreasonable application of clearly established federal law as d e t e r m in e d by the Supreme Court."1 3 "We are required to presume that the ju d g e or jury acted according to law, yet the law mandates a juror willing to lay a s i d e his impression or opinion and render a verdict based on the evidence p r e s e n t e d in court."1 4 That did not happen in Virgil's case. "Given the

fu n d a m e n t a l nature of the impartial jury and the consistent line of Supreme C o u r t precedent enforcing it, we must conclude that `the result of [Virgil's trial] [w a ]s unreliable because of a breakdown in the adversarial process that our s y s t e m counts on to produce just results.'" 1 5

II. L a r r y Torres is 11 years into a 70 year sentence for possession of cocaine

11

Id. Id. (quotation marks omitted). Id. Id. at 612­13 (citations and quotation marks omitted).

12

13

14

Id. at 613 (quoting Strickland v. Washington, 466 U.S. 668, 696 (1984)) (first alteration in original).

15

5

Case: 07-20225

Document: 00511232169

Page: 6

Date Filed: 09/13/2010

No. 07-20225 w it h intent to distribute. Jon Gorman served as foreman of the jury that c o n v ic t e d and sentenced Torres. During voir dire, the judge asked all panelists w h e t h e r they could: honor the burden of proof and presumption of innocence, c o n s id e r the full range of punishment, and follow the Fifth Amendment if the d e f e n d a n t failed to testify. Gorman did not raise any concerns in response to t h e s e inquiries. Specifically, when explaining reasonable doubt, the trial judge t o ld the panel that the court needed to know of any feelings that might prevent a panelist from being fair and impartial. One panelist raised his hand, but G o r m a n did not. Yet when the prosecutor asked: "Anybody had a friend, family m e m b e r , close relative had a problem with drugs who would not be able to sit in t h is case, guilt or innocence or punishment, anyone at all?" Gorman spoke up. "I might have a problem with that, 34." Later, Gorman approached the bench.

THE COURT: The next one I have is 34. I have just a question m ark . PROSECUTOR: He would not consider life, your Honor.16 T H E COURT: You want to agree, Ira [Chenkin, defense counsel], or ta lk ? DEFENSE COUNSEL: I would like to talk. PROSECUTOR: Yeah, me too. THE COURT: Mr. Gorman, 34 . . . . Are you active in the Air Force? GORMAN: Yes, sir.

Nothing in the record shows Gorman would not consider a life sentence so the prosecutor likely misspoke here.

16

6

Case: 07-20225

Document: 00511232169

Page: 7

Date Filed: 09/13/2010

No. 07-20225

T H E COURT: Living here now? GORMAN: Yes, sir. THE COURT: I'm an Air Force retiree. Good to have you here. What is your rank? GORMAN: E-6. T H E COURT: I was one of those once. Mr. Chenkin has a question. DEFENSE COUNSEL: Can you consider the full range of p u n is h m e n t? GORMAN: You know, I would have a hard time and the reason is I 'm a foster parent and I have foster children living with me right n o w from the State of Washington and their mother put me in the s it u a t io n that my foster daughter is in. D E F E N S E COUNSEL: I don't understand. GORMAN: Could I consider the full range? Yeah, I could very easily c o n s id e r the full range. P R O S E C U T O R : Now I'm a little hesitant. Is there some experience t h a t would make you not be able to judge these facts objectively? GORMAN: Possibly. I mean, I've I thought about it because it took m e a while to think about what is going on; internalizing on myself. I need to separate my experiences from what might be at and hear a n d in that case I may have a problem making a decision based on ­ P R O S E C U T O R : This evidence? GORMAN: Yes. THE COURT: Whatever those situations were or are, do you think 7

Case: 07-20225

Document: 00511232169

Page: 8

Date Filed: 09/13/2010

No. 07-20225 y o u can set those aside and when you are considering the evidence in this case or do you think that is going to affect your ability to be fa ir and impartial? GORMAN: I think it would affect my ability to be fair and impartial b e c a u s e they are there. THE COURT: You don't think you can set them aside? GORMAN: I've been doing this for about five years now and there a r e things I've seen that I think ­ THE COURT: Based upon experiences, you feel like you can't be fair t o the defendant or the State? GORMAN: Probably more for the State. THE COURT: You don't think you could be as fair to him? GORMAN: That's correct. T H E COURT: Question? P R O S E C U T O R : No. D E F E N S E COUNSEL: No further questions. T H E COURT: Thank you, sir. P R O S E C U T O R : I think we should keep him. DEFENSE COUNSEL: Leave him alone. No further questions were put to Gorman. Defense counsel did not move t o strike Gorman, either for cause or to exercise a peremptory challenge. Torres

8

Case: 07-20225

Document: 00511232169

Page: 9

Date Filed: 09/13/2010

No. 07-20225 w a s convicted and sentenced to 70 years; appealed and lost; and did not seek S u p r e m e Court review. T o r r e s filed a state habeas petition, alleging jury bias and ineffective a s s is t a n c e of counsel for failure to strike Gorman. The state habeas court (a d iffe r e n t judge than the one who presided over the trial) ordered Chenkin to file a n affidavit. It stated:

I have been asked to explain the reasons for my decision not t o challenge or exercise a peremptory strike against venireman Jon G o r m a n at . . . trial in the primary case. I recall, based on general v o ir dire discussions with the venirepanel, that I had the impression t h a t Mr. Gorman was going to be a defense-oriented juror. I recall t h a t I had developed this impression based on Mr. Gorman's r e s p o n s e s to questions as they were asked by both myself and the S t a t e , although I don't believe Mr. Gorman's specific responses are r e fle c t e d in the appellate record. I further recall that, because I b e lie v e d Mr. Gorman was defense-oriented, I did not wish to q u e s t io n him at the bench. However, the prosecutor did want to q u e s t io n Mr. Gorman, so I attempted to protect him as a defense ju r o r . As Mr. Gorman began to answer questions posed by the judge, p r o s e c u t o r , and myself, I realized that he was starting to flip-flop on s e v e r a l of his answers. However, I remember at the time thinking t h a t it would not be a bad idea to have an equivocating juror on this c a s e . The evidence against Larry Torres was strong, Mr. Torres was a difficult client, and I believed it was going to be a difficult case to w in . I thought that Mr. Gorman's presence on the jury, if not s u ffic ie n t to result in an acquittal, would at least give us a good c h a n c e at getting a hung jury and a mistrial. I made the strategic d e c is io n not to challenge Mr. Gorman for cause; likewise, I chose not t o exercise a peremptory strike against him. Although some of Mr. G o r m a n 's answers at the bench were not exactly favorable to the

9

Case: 07-20225

Document: 00511232169

Page: 10

Date Filed: 09/13/2010

No. 07-20225 d e fe n s e , it was still my impression that he would be a good defense ju r o r or, at least his presence might lead to a mistrial. T h e state habeas court ruled on the merits, finding Chenkin to be credible and t h e facts asserted in Checkin's affidavit to be true: he made a strategic decision n o t to challenge Gorman. The Texas Court of Criminal Appeals denied relief b a s e d on the state habeas court's recommendation. T o r r e s filed a pro se 28 U.S.C. § 2254 petition in federal district court. Texas responded and moved for summary judgment.1 7 The district court granted s u m m a r y judgment, denying relief. As to juror bias, the district court deferred t o the state court fact finding that Gorman was not partial. Although his c o llo q u y at the bench suggested he might not be fair to Torres, Gorman's r e s p o n s e s to questions about burden of proof and trial procedure outweighed any p o t e n t ia l bias. As to ineffective assistance, the district court again deferred to s t a t e court fact finding that Chenkin had made a strategic choice to keep G o r m a n . The court differentiated Virgil on the idea that the after-the-fact a ffid a v it here was more thorough and direct than the lawyer's after-the-fact a ffid a v it there. This court granted a COA on the juror bias and ineffective a s s is t a n c e claims.

Summary judgement in federal habeas is different than in the average civil case. See, e.g., Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), abrogated on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004) ("[Section] 2254(e)(1) ­ which mandates that findings of fact made by a state court are `presumed to be correct' ­ overrides the ordinary rule that, in a summary judgment proceeding, all disputed facts must be construed in the light most favorable to the nonmoving party. Unless [the petitioner] can `rebut [ ] the presumption of correctness by clear and convincing evidence' as to the state court's findings of fact, they must be accepted as correct." (third alteration in original)).

17

10

Case: 07-20225

Document: 00511232169

Page: 11

Date Filed: 09/13/2010

No. 07-20225 III. A. W e review the factual issues of a district court's denial of habeas relief for c le a r error and the legal issues de novo, applying the same deference to the state c o u r t's decision as the district court must.1 8 Torres's § 2254 petition falls under A E D P A , so we "defer to a state court's adjudication of a claim if the claim has b e e n adjudicated on the merits in the state court proceedings unless the state c o u r t decision was (1) `contrary to, or involved an unreasonable application of, c le a r ly established Federal law, as determined by the Supreme Court,' or (2) `w a s based on an unreasonable determination of the facts in light of the evidence p r e s e n t e d in the State court proceeding.'"1 9 We must accept the state habeas c o u r t's fact finding unless rebutted by clear and convincing evidence.2 0 The jury b ia s question is one of fact,2 1 and the ineffective assistance issue presents a m ix e d question of law and fact.2 2 B. C o n t r a r y to what Torres claims, this case is not controlled by Virgil. In V ir g il, the two questionable jurors provided specific statements during voir dire in d ic a tin g why they could not be fair and impartial.2 3 Later, defense counsel

18

Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir. 2007). Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir. 2010) (quoting 28 U.S.C. § 2254(d)). 28 U.S.C. § 2254(e)(1); see also Virgil, 446 F.3d at 610 n.52. See Virgil, 446 F.3d at 610 n.52. See Woodfox, 609 F.3d at 789; Virgil, 446 F.3d at 604­05.

19

20

21

22

See Virgil, 446 F.3d at 609-10 (noting that one juror stated his relationship with lawenforcement officers and knowledge of repeat offenders would preclude him from being

23

11

Case: 07-20225

Document: 00511232169

Page: 12

Date Filed: 09/13/2010

No. 07-20225 p r o v i d e d only a "conclusory affidavit" that "fail[ed] to rehabilitate his p e r fo r m a n c e , as it lack[ed] any suggestion of a trial strategy for not using p e r e m p t o r y or for-cause challenges."2 4 In contrast, here the juror's statements o n the record during voir dire were vague. Gorman implied that a "situation" w it h his foster daughter's mother would affect his ability to be fair, but he never d e s c r ib e d an experience with drugs or drug dealers that would affect his im p a r t ia lity .25 Further, unlike the Virgil affidavit, Chenkin's affidavit described a trial strategy that involved Gorman's statements and personality.2 6 Chenkin b e lie v e d that Gorman's presence on the jury might result in a hung jury or p o s s ib ly an acquittal, an explanation the state habeas court credited.2 7 As the
impartial and the other juror stated his mother's mugging prevented him from being impartial).
24

Virgil, 446 F.3d at 610.

Gorman's nebulous conversation at the bench also differentiates this case from the Sixth Circuit case we relied on in Virgil. Hughes v. United States, 258 F.3d 453 (6th Cir. 2001). In Hughes, the juror said, "I don't think I could be fair," in a case where the defendant was said to have stolen a firearm from a federal marshal at gunpoint. The juror's assessment of her own fairness was based on her close relationship with members of the police force. The court found these statements to be evidence of bias. In contrast, Gorman initially stated he "would have a hard time" considering the full range of punishment. Moments later, he stated he "could very easily consider the full range." He never described instances involving drugs or the police that would make him bias against the defendant. We also found the Virgil affidavit lacking because it failed to indicate why for-cause challenges were not used against the jurors in question. Virgil, 446 F.3d at 610. That problem does not exist in this case, as Chenkin specifically stated he made a strategic decision not to use the for-cause challenge. This court gives "substantial deference to counsel's performance, applying the strong presumption that counsel performed adequately and exercised reasonable professional judgment. Because we must make every effort to eliminate the distorting effects of hindsight, a conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness." Virgil, 446 F.3d at 608 (citations and quotation marks
27 26

25

12

Case: 07-20225

Document: 00511232169

Page: 13

Date Filed: 09/13/2010

No. 07-20225 T e x a s Court of Criminal Appeals has explained, "That appellant was ultimately a s s e s s e d the maximum punishment means only that the [strategic] risk did not p a y off; it does not mean the strategy was unacceptable from the perspective of ju r y selection." 2 8 T o r r e s argues that Gorman unequivocally expressed he could not be fair a n d impartial. However, when the trial judge asked the panel whether anyone w a s unable to properly follow the laws of presumption of innocence and burden o f proof, Gorman remained silent, indicating his ability to follow the law. The t r ia l judge specifically told panelists to report feelings that would hinder their a b ility to apply reasonable doubt "because you may not be able to be a fair and im p a r t ia l juror." Gorman said nothing.2 9 Moreover, Gorman's statements at the b e n c h did not expressly indicate a clear prejudice. He said he thought his e x p e r ie n c e s would affect his impartiality and that he would "probably" be more fo r the State, but unlike the Virgil jurors, none of Gorman's responses d e fin it iv e ly showed he would not be impartial.3 0

omitted). Delrio v. State, 840 S.W.2d 443, 447 (Tex. Crim. App. 1992) (reversing the court of appeals and finding that defense counsel's failure to strike an ex-narcotics officer venireperson in a drug-related case could have been trial strategy). In addition, the voir dire transcript shows that defense counsel asked panelists person by person whether "You think you could be a fair and impartial juror?" We have previously differentiated Virgil on this basis. See Seigfried v. Greer, 2010 WL 1404046, at *4, 2010 U.S. App. LEXIS 7202, at *10 (5th Cir. Apr. 7, 2010) (unpublished) ("Although the statements made by Juror 2 hinted at possible bias against Seigfried, Juror 2 never explicitly stated that she could not be an impartial juror. In contrast to the statements by Juror 2 during voir dire, both this court and others courts have found actual bias where a juror forthrightly states that she could not be fair and impartial."); White v. Quarterman, 275 F. App'x 380, 382­83 (5th Cir. 2008) (unpublished).
30 29 28

13

Case: 07-20225

Document: 00511232169

Page: 14

Date Filed: 09/13/2010

No. 07-20225 IV . T h e record supports the state habeas court's findings that Larry Torres's la w y e r had a strategy in accepting Gorman as a juror despite the late arising im p a r t ia lit y concerns. The state habeas court's application of federal law was o b je c t iv e ly reasonable, the standard required by AEDPA before granting relief.31 F in d in g Virgil to be inapposite, we hold that Torres's trial was constitutionally s o u n d and affirm the district court's judgment denying habeas relief. A F F IR M E D .

See Virgil, 446 F.3d at 614 ("The state court's rejection of Virgil's ineffective assistance of counsel claim was contrary to the Supreme Court's decision in Strickland." (citing 28 U.S.C. § 2254(d)(1))); see also Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (reciting that an incorrect application of federal law is not sufficient).

31

14