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Buckner v. Davis

United States Court of Appeals, Fifth Circuit

December 19, 2019

BOBBY JOE BUCKNER, Petitioner-Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee

          Appeal from the United States District Court for the Western District of Texas

          Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.

          PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE.

         Bobby Joe Buckner was convicted of aggravated sexual assault of a child. He contends that one of the convicting jurors was biased by the juror's personal and family history. The district court denied his petition for federal habeas relief. We affirm.

         I.

         At Buckner's trial, several voir dire questions addressed the potential jurors' experiences relating to sexual assault or abuse. First, the trial judge asked the potential jurors whether they or someone they knew had been accused of certain sexual crimes.[1] Defense counsel later asked the potential jurors whether they or someone they knew had been a victim of either child abuse or sexual abuse that "would affect your ability to sit in a trial and be fair and impartial."

         The juror at issue here, R.H., did not respond to these questions. After the jury was selected but before the start of trial, R.H. privately disclosed to the judge and the attorneys that his father had been convicted of sexually assaulting his stepsister. R.H. explained that he was too embarrassed to answer during voir dire because he knew several other prospective jurors. He had hoped for a chance to speak privately, but jury selection concluded sooner than he had expected. He said the abuse was an "emotional issue" for him, but he repeatedly stated that he could be fair and impartial.

         R.H. remained on the jury, which convicted Buckner and sentenced him to 50 years' imprisonment.[2] Buckner filed a motion for a new trial. The motion stated that Buckner's trial counsel learned, after trial, that R.H. "withheld material information during voir dire." Specifically, Buckner's counsel asserted in a supporting affidavit that not only had R.H.'s father sexually abused his stepsister, R.H.'s father had also abused R.H. Counsel also asserted that R.H. was the victim, in a separate incident, of kidnapping and attempted sexual assault. The affidavit is silent as to how Buckner's counsel learned this information and as to the particulars of the alleged incidents.[3] The affidavit stated that R.H.'s supposed omission was made "more egregious" by R.H. disclosing his stepsister's abuse without mentioning his own. In his motion for a new trial, Bucker argued that he was denied an impartial jury by R.H.'s failure to disclose this personal abuse and his belated disclosure of his stepsister's abuse.

         This motion was denied by operation of law, [4] the Texas Court of Appeals affirmed Buckner's conviction and sentence on direct appeal, [5] and the Texas Court of Criminal Appeals ("TCCA") refused Buckner's petition for discretionary review and denied his state habeas application without written order. Buckner then filed a Section 2254 application raising several issues. In relevant part, he argued he was denied due process by the trial court's denial of his motion for a new trial. The district court concluded that the "implicit finding [of the state court] that the subject juror was impartial was not manifestly erroneous." It noted that Buckner had not submitted an affidavit from R.H. to support the assertion that R.H. had been the victim of sexual abuse, and therefore there was no actual evidence that R.H. was abused. The district court also noted that R.H. had stated repeatedly that, even though his father abused his stepsister, "he could reach a verdict based on the evidence." Thus, the district court concluded that because no juror "demonstrated bias such that [Buckner] was deprived of his right to an impartial jury," the state court's rejection of this claim "was not contrary to or an unreasonable application of federal law." The district court denied Buckner's federal petition and denied a certificate of appealability.

         Buckner submitted a timely notice of appeal, raising only his claim of juror bias. We granted a certificate of appealability on the claim that he had been denied "due process when [the trial court] denied his motion for a new trial, which itself was based on a claim that he was denied an impartial jury because one of the jurors had failed to timely disclose a family history of sexual abuse and had not disclosed a personal history of sexual abuse."

         II.

         This is an appeal from the denial of Section 2254 relief. Under the Antiterrorism and Effective Death Penalty Act of 1996, this court reviews issues of law de novo and findings of fact for clear error, applying the same deference to the state court's decision as did the district court.[6] The district court was required to defer to state court decisions on questions of law and mixed questions of law and fact unless they were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court."[7] "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision."[8]

         III.

         "The Sixth Amendment guarantees an impartial jury, and the presence of a biased juror may require a new trial as a remedy."[9] 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."[10] "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."[11] Where a juror has a close connection to the circumstances at hand, however, bias may be presumed as a matter of law.[12]

         On federal habeas review, state court findings concerning a juror's impartiality are factual determinations entitled to a presumption of correctness.[13] As noted above, the district court found that Buckner had not shown that the state court's implicit finding that R.H. was impartial was erroneous.

         A.

         Buckner argues that R.H.'s failure to disclose his family and personal history during voir dire demonstrates his bias. To obtain a new trial due to a juror's alleged failure to answer questions honestly during voir dire, the defendant must satisfy the test set out in McDonough Power Equipment v. Greenwood.[14] Under this test, the defendant must show that the complained-of juror failed to provide an honest answer to a material question and that a truthful response would have provided a valid basis to challenge the juror for cause.[15] To demonstrate actual bias, "admission or factual proof" of bias must be presented.[16]

         Assuming for argument that R.H. failed to answer a question honestly, the second McDonough prong-whether a truthful response would have been a valid basis to challenge R.H. for cause-dooms Buckner's claim of actual bias. The question of cause turns on state law.[17] Under the applicable law and the facts in this case, a challenge for cause could have been made based on a claim of bias.[18] However, Texas courts have found that a juror who was the victim of a similar crime but who credibly states he will not be affected by that fact is not biased.[19] In addition, in cases in which potential jurors have disclosed the grounds for possible bias but have stated that they could be fair, we have held that the defendant was not denied an impartial jury.[20]

         First, information about R.H.'s family history would not have supported a challenge for cause.[21] That R.H. came forward to disclose his family history of abuse-and explained that he initially failed to disclose it out of embarrassment-indicates he was not biased.[22] During the meeting in chambers, R.H. repeatedly stated that he had intended to disclose this family history privately, but was never given the opportunity. R.H. did not express a view adverse to any party and he repeatedly stated he would be fair and impartial.[23] There is no indication that R.H. concealed this family history due to bias or an effort to secure a place on the jury.[24]

         Second, to the extent Buckner alleges R.H. personally suffered abuse, he has not presented evidence this occurred.[25] As the district court noted, "[t]he allegations in the affidavit are not supported by an affidavit from the juror- there is no sworn statement from the juror that they withheld the fact of their own abuse from defense counsel or the trial court." And while counsel's affidavit is sworn, it fails to provide any explanation of how counsel learned of R.H.'s alleged past abuse. Buckner's assertion in his reply brief that counsel learned of this information from a court coordinator also fails to explain how the court coordinator learned this alleged fact and thus suffers from the same deficiencies. Thus, the affidavit was insufficient under state law to support a motion for a new trial.[26]

         The only remaining issue related to actual bias is whether a post-conviction evidentiary hearing was required. While the attorneys and the trial judge questioned R.H. in chambers, there was no post-conviction hearing, which is how a claim of bias is ordinarily addressed.[27] But there is no due process right to an evidentiary hearing on every allegation of juror bias.[28]

         Buckner, a pro se prisoner, argues he cannot provide direct evidence of R.H.'s history or bias without an evidentiary hearing. Yet Buckner had counsel at the trial court, and that attorney supplied only a one-sentence hearsay statement-unaccompanied by an investigation or explanation of its source- regarding R.H.'s personal abuse. The district court did not err in concluding that Buckner failed to show that the state court's denial of his claim of actual bias was contrary to or an unreasonable application of clearly established federal law.[29]

         B.

         The next question is whether R.H.'s assurances of impartiality should have been disregarded and his bias presumed, given his alleged personal and family history of sexual abuse. Justice O'Connor, concurring in Smith v. Phillips, described "extreme situations that would justify a finding of implied bias."[30] Thus, while the question of an individual juror's bias is a factual determination entitled to deference on review, the Supreme Court has not "precluded the use of the conclusive presumption of bias" in "extreme" or "extraordinary cases."[31] "In the exceptional circumstances that may require application of an 'implied bias' doctrine, the lower federal courts need not be deterred by 28 U.S.C. § 2254(d)" and "state-court proceedings resulting in a finding of 'no bias' are by definition inadequate to uncover the bias that the law conclusively presumes."[32]

         The Government first argues that, for Section 2254 purposes, there is no "clearly established" Supreme Court precedent recognizing "implied bias." Although this Court has discussed implied bias in several prior cases, we recently noted in Uranga v. Davis that it was unclear whether this court has recognized the implied-bias doctrine as clearly established federal law.[33] In Uranga, the petitioner argued that implied bias was clearly established federal law based on Brooks, [34] while the Government countered that an earlier decision, which found that the Supreme Court had not "embraced the implied bias doctrine," controlled.[35]Uranga acknowledged a circuit split but declined to settle the issue because the facts of ...


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