Kenny Roy Miller v. PATTI WEBB, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0323P (6th Cir.)
File Name: 04a0323p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KENNY ROY MILLER,
Petitioner-Appellant,
v.
PATTI WEBB, Warden,
Respondent-Appellee.
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No. 02-5907
Appeal from the United States District Court
for the Western District of Kentucky at Owensboro.
No. 01-00187—Joseph H. McKinley, Jr., District Judge.
Submitted: June 11, 2004
Decided and Filed: September 22, 2004
Before: KEITH, CLAY, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Kenny Roy Miller, Central City, Kentucky, pro
se.
KEITH, J., delivered the opinion of the court, in which
CLAY, J., joined. GIBBONS, J. (pp. 22-30), delivered a
separate dissenting opinion.
2 Miller v. Webb No. 02-5907
_________________
OPINION
_________________
DAMON J. KEITH, Circuit Judge. Petitioner-Appellant
Kenny Roy Miller (“Miller”) is currently serving a life
sentence after a state conviction for intentional murder,
criminal attempt to commit murder, first-degree burglary, and
being a first-degree persistent felony offender. Miller appeals
from the district court’s denial of his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In his habeas
petition, Miller alleges that his trial counsel was ineffective
for failing to challenge a biased juror during voir dire. Miller
argues that the Kentucky Court of Appeals denial of his
ineffective assistance of counsel claim was contrary to, and an
unreasonable application of, clearly established federal law.
For the reasons set forth below, we REVERSE the district
court’s order and REMAND for proceedings consistent with
this opinion.
I. BACKGROUND
On November 14, 1990, a grand jury in Warren County,
Kentucky indicted Miller for intentional murder, criminal
attempt to commit murder, first-degree burglary, and being a
first-degree persistent felony offender. The indictment
charged Miller for shooting and killing Leon Gray and
shooting and seriously wounding Linda Cline in their bed at
an apartment in Bowling Green, Kentucky.
On August 17, 1992, a jury trial commenced against Miller
in the Warren Circuit Court. During voir dire, one
prospective juror, Yvonne Bell (“Juror Bell”), in response to
the prosecutor’s voir dire question, stated that she was a
minister and that she had known Linda Cline for two or three
years through Bible study. Linda Cline, the woman who was
shot and seriously wounded, was one of the prosecution’s key
witnesses and the only eyewitness to the crime. At this point

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No. 02-5907 Miller v. Webb 3
of the voir dire, Miller’s trial counsel, William Skaggs
(“Skaggs”), did not ask Juror Bell any follow-up questions.
Towards the end of the voir dire, however, the trial court
asked the members of the jury panel if they wanted to reveal
further information. The following dialogue took place:
Judge: Okay, one final thing. . . . [D]uring the
course of this proceeding there may have
been something that was asked that you let
go by. Something that you thought you
weren’t sure but now its bothering you.
Anybody have anything they need, feel like
they need to bring up with the court, I’ll be
happy to take it up here at the bench, that
you would feel would in any way would
cause you any difficulty in sitting as a juror
in this case. Yes, ma’am, come on up.
[bench conference]
Ms. Bell: I’m Yvonne Bell.
Judge: Yes, Ms. Bell.
Ms. Bell: I feel like I would kind of be partial to
Linda Cline because, when she was in my
classes (inaudible) she seemed like she
really wanted to do better and I kind of
have sympathy for her in this case, with her
being the victim.
Judge: Do you believe the fact that you had her,
you indicated, in Bible studies, and will
appear as a witness in this case and is
alleged to be one of the victims in this
case, do you believe that would influence
your thinking here and cause you to be
more sympathetic for her side as such as
you couldn’t sit and be fair and impartial?
4 Miller v. Webb No. 02-5907
Ms. Bell: I think I could be fair. I think I could be
fair. I ministered in the women’s section
for about four years. She was kind of in
and out, but she seemed like she wanted to
do better, but I believe I could be fair and
whether she’s guilty or not guilty I believe
I could be fair about it all. But I do have
some feelings about her.
Judge: Okay, ma’am. I’m going to . . . go back
and take your seat, I’m going to hear from
the lawyers.
Mr. Skaggs: Judge, may I ask her a question?
Judge: Yes, you may.
Mr. Skaggs: The women’s section. The women’s
section of what?
Ms. Bell: The Warren County Jail.
Mr. Skaggs: Okay, and how many years ago was this, or
was it recent?
Ms. Bell: From ’80 . . . about four years, up until last
year.
Mr. Skaggs: Okay, and so you have seen her since this
happened?
Ms. Bell: No, I haven’t[.] I haven’t been coming to
the (inaudible) for about a year now.
Mr. Skaggs: Well, this happened 18 months ago.
Ms. Bell: Well, I don’t know. I don’t remember. I
never ask any of them about why they’re in
for or any of their business. My whole
concern was the word of God. I never talk

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No. 02-5907 Miller v. Webb 5
to them about their cases or any of their
personal business.
Mr. Skaggs: I see. That’s all.
Judge: Okay, you may step down. Just take your
seat back. [Juror departs.] Do either of
you want me to consider striking this
woman, this juror for cause?
Mr. Wilson: Well. She said she could be fair. She does
know the person but she did answer the
question that she could be fair.
Mr. Skaggs: I have no motion.
In addition to not challenging Juror Bell for cause, Miller’s
trial counsel did not use a peremptory challenge to remove the
prospective juror. Therefore, Juror Bell remained on the jury.
On August 19, 1992, the jury, which included Juror Bell,
convicted Miller on all charges of the indictment. On
September 2, 1992, the trial court sentenced Miller to life and
to two twenty-year terms of imprisonment, to run
consecutively. Miller filed a direct appeal to the Kentucky
Supreme Court concerning the judgment of conviction and
sentence. On September 29, 1994, the Kentucky Supreme
Court affirmed the conviction, but remanded the case for re-
sentencing and directed the trial court to run Miller’s life
sentence concurrently with his forty-year sentence. On
November 15, 1994, the trial court re-sentenced Miller in
accordance with the Kentucky Supreme Court’s order.
On October 26, 1995, with new court-appointed counsel,
Miller filed a motion to vacate the judgment based upon
ineffective assistance of counsel. Among his allegations,
Miller argued that his trial counsel was ineffective when he
allowed Juror Bell, a biased juror, to remain on the jury. On
September 2, 1998, the Warren Circuit Court held an
6 Miller v. Webb No. 02-5907
evidentiary hearing. The Warren Circuit Court heard
testimony from Miller and his trial counsel, Skaggs. Skaggs
testified that he did not seek to exclude Juror Bell from the
jury because:
Most people do not understand the world of extreme hard
core drug addicts and . . . this case [involved] hard core
drug addicts . . . . It is a different reality. Regular jurors
do not understand that hard core drug addicts will lie
. . . [.] They will only tell the truth if they have no other
opportunity. And, since this lady knew Linda Cline,
knew she was completely unworthy of belief, I left her
up. . . . Anyone who knew Linda Cline, knew that she
could not be trusted, that was my thinking at the time.
On February 2, 1999, the Warren Circuit Court denied
Miller’s motion. Miller appealed to the Kentucky Court of
Appeals. On January 19, 2001, the Kentucky Court of
Appeals affirmed the Warren Circuit Court’s decision holding
that Miller failed to rebut the presumption that trial counsel’s
decision to not exclude the juror was sound trial strategy and,
therefore, not deficient performance pursuant to Strickland v.
Washington, 466 U.S. 668 (1984). Miller filed a motion for
discretionary review with the Kentucky Supreme Court. On
October 17, 2001, the Kentucky Supreme Court denied
Miller’s motion.
After exhausting his remedies in the Kentucky state courts,
on November 2, 2001, Miller filed a petition for a writ of
habeas corpus, pro se, pursuant to 28 U.S.C. § 2254 in the
United States District Court for the Western District of
Kentucky. Miller raised five claims of ineffective assistance
of counsel. Miller argued that: (1) his attorney failed to seek
to exclude Juror Bell, who knew and admired the State’s
primary witness; (2) his attorney failed to investigate and
subpoena witnesses to directly contradict the State’s chief
witness; (3) his attorney attempted to establish an alibi
defense, which he knew he could not support by credible
witnesses; (4) his attorney failed to move for a mistrial after

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No. 02-5907 Miller v. Webb 7
a juror had prejudicial exposure to a spectator at trial; and
(5) the cumulative effect of his counsel’s errors constituted
ineffective assistance.
On January 7, 2002, the district court referred the matter to
a magistrate judge for a report and recommendation. On May
28, 2002, the magistrate judge entered findings of fact and
conclusions of law, recommending that the district court deny
the petition on the merits and issue a certificate of
appealability on the first issue only, because reasonable jurists
could find the assessment of the constitutional claim
debatable or wrong. On June 10, 2002, Miller filed
objections to the findings of fact. On June 19, 2002, the
district court entered an order adopting the magistrate judge’s
report and recommendation. In denying the habeas petition
on the first issue, the district court held that Miller failed to
overcome the presumption that trial counsel’s reason for
allowing Juror Bell to remain on the jury was sound trial
strategy. In addition, the district court held that Miller failed
to show that Juror Bell was actually biased against him.
Therefore, the district court ruled that Miller failed to show
that the decision of the Kentucky Court of Appeals, which
denied his ineffective assistance of counsel claim, was
contrary to, or an unreasonable application of, clearly
established federal law.
On July 17, 2002, Miller filed a notice of appeal for the
district court’s denial of his habeas petition based on his first
claim of ineffective assistance of counsel, which the district
court certified. On July 24, 2002, Miller also appealed the
district court’s order denying a certificate of appealability on
Miller’s remaining four claims. On January 17, 2003, this
Court denied Miller’s application for a partial certificate of
appealability holding that Miller failed to make a substantial
showing of the denial of a constitutional right. This Court
determined that Miller’s appeal should proceed on the claim
that the district court certified: Whether Miller was denied
the effective assistance of counsel when his trial counsel
failed to seek to exclude Juror Bell. On May 12, 2003,
8 Miller v. Webb No. 02-5907
1W e decid e this case under the AED PA beca use M iller filed his
petition for a writ of habeas corpus on November 2, 2001, well after the
AEDP A’s effective d ate of A pril 24 , 1996 . See Lindh v. Murphy, 521
U.S. 320 , 336 (1997); Barker v. Yukins, 199 F.3d 867 , 871 (6th Cir.
1999).
Respondent-Appellant Patti Webb, Warden, waived the
opportunity to respond to Miller’s appeal.
II. DISCUSSION
This Court reviews a district court’s legal conclusions in a
habeas petition de novo. Lucas v. O’Dea, 179 F.3d 412, 416
(6th Cir. 1999). This Court usually reviews findings of fact
for clear error, “but when the district court’s decision in a
habeas case is based on a transcript from the petitioner’s state
court trial, and the district court thus makes ‘no credibility
determination or other apparent findings of fact,’ the district
court’s factual findings are reviewed de novo.” Wolfe v.
Brigano, 232 F.3d 499, 501 (6th Cir. 2000) (quoting Moore
v. Carlton, 74 F.3d 689, 691 (6th Cir. 1996)).
In determining whether to issue a writ of habeas corpus, the
provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) govern the district court’s review of
a state court decision.1 28 U.S.C. § 2241. Pursuant to the
AEDPA,
[a]n application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim–
(1) 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; or

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No. 02-5907 Miller v. Webb 9
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
Id. § 2254(d).
The Supreme Court explained these requirements for
habeas relief under 28 U.S.C. § 2254(d)(1) in Williams v.
Taylor, 529 U.S. 362 (2000). In Williams, the Court held
that, in order to justify a grant of habeas relief, a federal court
must find a violation of law that is “clearly established” from
“the holdings, as opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the relevant state-court
decision.” Id. at 412. The Court held that a state court’s legal
decision is “contrary to” clearly established federal law “if the
state court arrives at a conclusion opposite to that reached by
[the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a
set of materially indistinguishable facts.” Id. at 413.
Furthermore, the Court held that a state court’s legal decision
will be deemed an “unreasonable application” of clearly
established federal law “if the state court identifies the correct
governing legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Id.
A federal court, however, may not find a state adjudication
to be unreasonable “simply because that court concludes in its
independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be
unreasonable.” Id. at 411. Moreover, a federal court making
the unreasonable application inquiry should not transform the
inquiry into a subjective one by inquiring whether all
reasonable jurists would agree that the application by the state
court was unreasonable. Rather, the issue is “whether the
state court’s application of clearly established federal law is
objectively unreasonable.” Id. at 410.
10 Miller v. Webb No. 02-5907
Under the AEDPA, therefore, the threshold inquiry is
whether Miller seeks to apply a rule of law that was clearly
established at the time of his conviction in the state court. See
id. at 412. Miller seeks to apply the Supreme Court’s holding
in Strickland v. Washington, 466 U.S. 668 (1984),which the
Supreme Court had clearly established at the time of Miller’s
conviction, to show ineffective assistance of counsel. The
Court in Strickland established a two-prong test to evaluate
claims of ineffective assistance of counsel pursuant to the
Sixth Amendment. First, the petitioner “must show that
counsel’s representation fell below an objective standard of
reasonableness. Judicial scrutiny of counsel’s performance
must be highly deferential, and a fair assessment of attorney
performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.”
Id. at 689. A court considering a claim of ineffective
assistance of counsel “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. Second, the petitioner must
show that counsel’s performance prejudiced the petitioner.
That is, the petitioner must “show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id.
When a biased juror is impaneled, however, “prejudice under
Strickland is presumed, and a new trial is required.” Hughes
v. United States, 258 F.3d 453, 457 (6th Cir. 2001).
Miller argues that it was ineffective assistance of counsel
for his trial counsel to keep Juror Bell, a biased juror, on the
jury. Pursuant to the Sixth and Fourteenth Amendments, a
criminal defendant is guaranteed the right to an impartial and
unbiased jury. Morgan v. Illinois, 504 U.S. 719, 727 (1992).
“Among the most essential responsibilities of defense counsel
is to protect his client’s constitutional right to a fair and
impartial jury by using voir dire to identify and ferret out
jurors who are biased against the defense.” Miller v. Francis,
269 F.3d 609, 615 (6th Cir. 2001); see United States v.

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No. 02-5907 Miller v. Webb 11
Blount, 479 F.2d 650, 651 (6th Cir. 1973) (“The primary
purpose of the voir dire of jurors is to make possible the
empanelling of an impartial jury through questions that permit
the intelligent exercise of challenges by counsel.” ); see also
Mu’Min v. Virginia, 500 U.S. 415, 431 (1991) (stating that
voir dire “serves the dual purposes of enabling the court to
select an impartial jury and assisting counsel in exercising
peremptory challenges”); Rosales-Lopez v. United States, 451
U.S. 182, 188 (1981) (“Voir dire plays a critical function in
assuring the criminal defendant that his Sixth Amendment
right to an impartial jury will be honored.”).
Counsel, however, is granted deference when conducting
voir dire. Hughes, 258 F.3d at 457. “An attorney’s actions
during voir dire are considered to be matters of trial strategy.
. . . A strategic decision cannot be the basis for a claim of
ineffective assistance unless counsel’s decision is shown to be
so ill-chosen that it permeates the entire trial with obvious
unfairness.” Id. (citation omitted). Despite this strong
presumption that counsel’s decisions are based on sound trial
strategy, it is insufficient for counsel to simply articulate a
reason for an omission or act alleged to constitute ineffective
assistance of counsel. “The trial strategy itself must be
objectively reasonable.” Miller, 269 F.3d at 616 (citing
Strickland, 466 U.S. at 681).
A trial court’s management of voir dire is granted similar
deference. The Supreme Court has acknowledged the
“traditionally broad discretion accorded to the trial judge in
conducting voir dire.” Mu’Min, 500 U.S. at 423. A trial
court’s management of voir dire, however, is “subject to
essential demands of fairness.” Hughes, 258 F.3d at 457
(citations and internal quotation marks omitted). Because a
petitioner’s Sixth Amendment right to an impartial jury is at
stake, “[a] defendant may obtain a new trial if an impaneled
juror’s honest responses to questions on voir dire would have
given rise to a valid challenge for cause.” Id. (citing
McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548,
556 (1984)). “‘Challenges for cause are subject to approval
12 Miller v. Webb No. 02-5907
by the court and must be based on a finding of actual or
implied bias.’” Id. (quoting Virgin Islands v. Felix, 569 F.2d
1274, 1277 n. 5 (3d Cir. 1978)).
Pursuant to the Sixth Amendment, for a finding of juror
impartiality when a juror is challenged for cause, the relevant
question is “did [the] juror swear that he could set aside any
opinion he might hold and decide the case on the evidence,
and should the juror’s protestation of impartiality have been
believed.” Patton v. Yount, 467 U.S. 1025, 1036 (1984). A
qualified juror need not be “totally ignorant of the facts and
issues involved.” Murphy v. Florida, 421 U.S. 794, 800
(1975). Rather, “‘[i]t is sufficient if the juror can lay aside his
impression or opinion and render a verdict based on the
evidence presented in court.’” Id. (quoting Irvin v. Dowd,
366 U.S. 717, 723 (1961)). In Irvin, the Supreme Court
stated:
In these days of swift, widespread and diverse methods
of communication, an important case can be expected to
arouse the interest of the public in the vicinity, and
scarcely any of those best qualified to serve as jurors will
not have formed some impression or opinion as to the
merits of the case. This is particularly true in criminal
cases. To hold that the mere existence of any
preconceived notion as to the 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.
Irvin, 366 U.S. at 722-23.
If actual bias is discovered during voir dire, the trial court
must excuse the prospective juror. Hughes, 257 F.3d at 459.
“‘Actual bias is “bias in fact”– the existence of a state of mind
that leads to an inference that the person will not act with
entire impartiality.’” Id. at 463 (quoting United States v.

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No. 02-5907 Miller v. Webb 13
Torres, 128 F.3d 38, 43 (2d Cir. 1997) (citing United States
v. Wood, 299 U.S. 123, 133 (1936))). Although bias can be
revealed through a prospective juror’s express admission,
more frequently, jurors are reluctant to admit actual bias and
the trial court must discover their biased attitudes through
circumstantial evidence. Id. at 459 (citing United States v.
Allsup, 566 F.2d 68, 71 (9th Cir. 1977)).
Because Miller’s claim for ineffective assistance of counsel
is based on his trial counsel’s failure to strike a biased juror,
Miller must show that the juror was actually biased against
him. Id. at 458 (citing Goeders v. Hundley, 59 F.3d 73, 75
(8th Cir. 1995) (citing Smith v. Phillips, 455 U.S. 209, 215
(1982))). “A juror’s express doubt as to her own impartiality
on voir dire does not necessarily entail a finding of actual
bias. The Supreme Court has upheld the impaneling of jurors
who had doubted, or disclaimed outright, their own
impartiality on voir dire.” Id.; see also Patton, 467 U.S. at
1025 (holding that trial court did not commit “manifest error”
when finding jury members to be impartial despite admitting
that they formed an opinion as to the defendant’s guilt due to
pretrial publicity).
This Court in Hughes, however, found actual bias when a
juror made an unequivocal statement of partiality and there
was neither a subsequent assurance of impartiality nor
rehabilitation by counsel or the court through follow-up
questions. Hughes, 258 F.3d at 460. In Hughes, the
government charged the defendant with theft of government
property and wrongful possession of a firearm in connection
with the robbing of a Deputy United States Marshall. During
voir dire, the judge asked potential jurors if they could be fair.
In response, the following exchange occurred:
JUROR [Jeanne Orman]: I have a nephew on the police
force in Wyandotte, and I know a couple of detectives,
and I’m quite close to ’em.
14 Miller v. Webb No. 02-5907
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?
Id. at 456. Neither the judge nor counsel asked any follow-up
questions. In addition, counsel never attempted to remove the
juror for cause or by peremptory strike. This Court held that,
while a juror’s express doubt as to her ability to be impartial
on voir dire does not necessarily result in a finding of actual
bias, actual bias was present because neither counsel nor the
trial court responded to the juror’s express statement that she
could not be fair. There was no subsequent assurance of
impartiality and no rehabilitation by counsel or the court
through follow-up questions. This Court held that, when left
with only a statement of partiality without a subsequent
assurance of impartiality or rehabilitation through follow-up
questions, “juror bias can always be presumed from such
unequivocal statements.” Id. at 460. As a result of finding
actual bias, this Court held that the state court’s denial of the
defendant’s ineffective assistance of counsel claim was an
unreasonable application of clearly established federal law.
Our present case is similar to Hughes. As in Hughes, Juror
Bell did not unequivocally swear that she could set aside her
opinion and decide the case on the evidence. When the trial
judge asked the jury panel whether any individual had
anything else to add, Juror Bell stated, “I feel like I would
kind of be partial to Linda Cline because, when she was in my
classes (inaudible) she seemed like she really wanted to do
better and I kind of have sympathy for her in this case, with
her being the victim.” Juror Bell indicated that she was

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No. 02-5907 Miller v. Webb 15
“partial” to the government’s key witness. The trial judge
asked only one follow-up question regarding whether she
could be fair and impartial. In response, Juror Bell stated, “I
think I could be fair,” however, she immediately qualified her
statement by stating, “[b]ut I do have some feelings about
her.” Although defense counsel questioned her further, he
only inquired about the women’s section and the jail. Neither
counsel nor the judge followed-up on her statement of
partiality. They did not ask whether she could “lay aside [her
feelings] and render a verdict based on the evidence presented
in court.” Irvin, 366 U.S. at 722-23. In this context, when a
juror makes a statement that she thinks she can be fair, but
immediately qualifies it with a statement of partiality, actual
bias is presumed when proper juror rehabilitation and juror
assurances of impartiality are absent, as in Hughes.
This Court acknowledges that, when asked whether a
particular juror can be fair, statements such as “I think I could
be fair” are not necessarily construed as equivocation. Miller
v. Francis, 269 F.3d at 618. In Miller v. Francis, we stated,
“venire members commonly couch their responses to
questions concerning bias in terms of ‘I think.’ Therefore, the
use of such language cannot necessarily be construed as
equivocation.” Id. For a juror to say, “I think I could be fair,
but . . . ,” without more, however, must be construed as a
statement of equivocation. It is essential that a juror “swear
that [she] could set aside any opinion [she] might hold and
decide the case on the evidence.” Patton, 467 U.S. at 1036.
If a juror does not make such an unequivocal statement, then
a trial court cannot believe the protestation of impartiality.
See id. Accordingly, when the trial court is ultimately left
with a statement of partiality, as in this case, that is coupled
with a lack of juror rehabilitation or juror assurances of
impartiality, we are left to find actual bias.
When a trial court is confronted with a biased juror, as in
this case, the judge must, either sua sponte or upon a motion,
dismiss the prospective juror for cause. Frazier v. United
States, 335 U.S. 497, 511 (1948). Because the trial court
16 Miller v. Webb No. 02-5907
failed to respond to Juror Bell’s statement of bias on voir dire,
we find that, as in Hughes, counsel’s failure to respond in turn
was objectively unreasonable pursuant to Strickland. “When
a venireperson expressly admits bias on voir dire, without a
court response or follow-up, for counsel not to respond [to the
statement of partiality] in turn is simply a failure ‘to exercise
the customary skill and diligence that a reasonably competent
attorney would provide.’” Hughes, 258 F.3d at 462 (quoting
Johnson v. Armontrout, 961 F.2d 748, 754 (8th Cir. 1992)).
The Kentucky Court of Appeals held that Miller was not
denied effective assistance of counsel because Miller failed to
show that his trial counsel’s decision to leave Juror Bell on
the jury was not the result of reasonable professional
judgment. Miller’s trial counsel, Skaggs, stated that he kept
Juror Bell on the jury because the case was about “hard core
drug addicts” and Juror Bell knew Linda Cline and “[a]nyone
who knew Linda Cline, knew that she could not be trusted.”
The Kentucky Court of Appeals noted that any error in trial
strategy regarding the selection of jurors does not generally
rise to the level of ineffective assistance of counsel.
Contrary to the Kentucky Court of Appeals’s decision, the
decision whether to seat a biased juror cannot be a
discretionary or strategic decision. Id. at 463 (citing United
States v. Martinez-Salazar, 528 U.S. 304, 316 (2000) (holding
that the seating of a biased juror who should have been
dismissed for cause requires reversal of the conviction)). As
we previously held, there is no sound trial strategy that could
support what is essentially a waiver of a defendant’s basic
Sixth Amendment right to trial by an impartial jury. Id. If,
however, there could be such a strategic decision, this case
does not present such a situation because Skaggs’s articulated
trial strategy was objectively unreasonable. First, Skaggs’s
reasoning that “anyone who knew Linda Cline, knew that she
could not be trusted” was completely baseless. Juror Bell
never gave counsel nor the court an indication that she did not
trust Linda Cline. On the contrary, Juror Bell believed that
Linda Cline “wanted to do better” and Juror Bell had

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No. 02-5907 Miller v. Webb 17
“sympathy for her in this case, with her being the victim.” It
was clear that Juror Bell was not an individual who did not
trust Linda Cline. Rather, Juror Bell was involved in ministry
with Linda Cline and believed in her.
Second, Skaggs’s reasoning that this case was about “hard
core drug addicts” and its dependent implication that Juror
Bell knew about this subject was also baseless. Although
Juror Bell was a minister at the Warren County Jail, she
specifically stated that she “never ask[ed] any of them about
why they’re in for or any of their business. [Her] whole
concern was the word of God. [She] never talk[ed] to them
about their cases or any of their personal business.” In
addition, during voir dire, Skaggs never questioned Juror Bell
about her knowledge of “hard core drug addicts.” Skaggs
made an unreasonable assumption that Juror Bell had such
knowledge considering that Juror Bell stated that she never
discussed personal business with the ladies. Accordingly,
Skaggs’s trial strategy was objectively unreasonable. It was
illogical to keep Juror Bell on the jury when she was partial
to Linda Cline, the Government’s key witness and victim. No
competent attorney would have employed such a strategy.
The “‘presence of a biased juror cannot be harmless; the
error requires a new trial without a showing of actual
prejudice.’” Hughes, 258 F.3d at 453 (quoting United States
v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir. 2000) (citations
omitted)). Therefore, because Miller’s trial counsel
impaneled a biased juror, “prejudice under Strickland is
presumed, and a new trial is required.” Id.
This Court has decided two other notable cases regarding
impartial jurors. In Wolfe v. Brigano, 232 F.3d 499 (6th Cir.
2000), the trial court denied the defense’s challenges for cause
of four prospective jurors in a murder trial. The first two
prospective jurors were close friends of the victim’s parents.
One of these jurors did not think he could be fair and
impartial. The other stated that she could be fair and
impartial, but conceded that it was “hard to say” whether her
18 Miller v. Webb No. 02-5907
2An affirmative statement of imp artiality is required to ensure that a
juror is unbiased, but such a statement alone is not the determining factor.
A trial court must still determine, from the context, whether such a
statement is believable. Patton, 467 U.S. at 1036.
relationship with the victim’s parents would influence her.
Id. at 502. The third prospective juror admitted she read and
saw news accounts of the crime and “expressed doubt as to
whether she could put aside those reports and decide the case
solely on the evidence presented at trial.” Id. at 502-03. The
fourth prospective juror “doubted he would require the
prosecution to prove its case beyond a reasonable doubt.” Id.
at 503. This Court held that “[i]n the absence of an
affirmative and believable statement that these jurors could
set aside their opinions and decide the case on the evidence
and in accordance with the law, the failure to dismiss them
was unreasonable.” Id. (citing Patton, 467 U.S. at 1036).
This Court further stated that “it appears that the trial judge
based his findings of impartiality exclusively upon each
juror’s tentative statements that they would try to decide this
case on the evidence presented at trial. Such statements,
without more, are insufficient. . . . The Sixth Amendment
guarantees Wolfe the right to a jury that will hear his case
impartially, not one that tentatively promises to try.” Id.
Therefore, this Court granted habeas relief because the denial
of a challenge for cause violated the petitioner’s Sixth
Amendment right to an impartial jury.
As in Wolfe, when Juror Bell stated, “I think I can be fair.
But . . .[,]” there was an absence of an affirmative and
believable statement that Juror Bell could set aside her
opinion and decide the case on the evidence and in
accordance with the law.2 Such statements of partiality,
without more, are insufficient. See id.
Another case in this Circuit that involved juror impartiality
is Miller v. Francis, 269 F.3d 609 (6th Cir. 2001). In Miller
v. Francis, this Court declined to grant habeas relief for an

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No. 02-5907 Miller v. Webb 19
ineffective assistance of counsel claim. The defendant was
charged and convicted for gross sexual imposition and rape of
a minor under the age of thirteen. During voir dire, one juror,
Patricia Furrow (“Furrow”), stated that she had knowledge of
the case, but could not discuss the case in open court because
of privacy concerns. During an in camera examination,
Furrow indicated that she was a welfare caseworker to the
victim’s mother. Furrow stated that she knew what happened,
but the victim’s mother did not use any names and did not
discuss the details of the rape or the criminal investigation.
Furrow expressed concern about participating on the jury.
She thought it would be uncomfortable for both herself and
the victim’s mother. In addition, she was worried that the
victim’s mother would try to telephone her during the trial to
talk about the case. When the prosecutor asked her whether
she could be fair, she replied, “I–it’s tough. I think I could be
fair.” Id. at 612. When defense counsel later asked whether
her professional relationship with the victim’s mother lent
more credence to the charges against his client, Furrow
answered, “No, I don’t really think that I would be biased.
Just uncomfortable.” Id. Furrow stated that if a problem
arose as a result of her participation as a juror, the victim’s
mother could be reassigned to a new caseworker. Defense
counsel declined to challenge Furrow for cause or use a
peremptory challenge to remove the potential juror. The
defendant was then convicted for the charged crimes.
The defendant, in his habeas petition, argued that his
defense counsel was ineffective for failing to challenge a
biased juror and, therefore, the Ohio Court of Appeals
unreasonably determined that he was not denied the effective
assistance of counsel. This Court, however, declined to grant
habeas relief, holding that the defendant failed to meet his
burden of showing actual bias. This Court stated:
Because Miller’s claim of ineffective assistance of
counsel is founded upon a claim that counsel failed to
strike a biased juror, Miller must show that the juror was
actually biased against him. Hughes, 258 F.3d at 458.
20 Miller v. Webb No. 02-5907
Miller has failed to meet his burden. Furrow’s prior
knowledge of the case was not extensive or detailed.
Furrow indicated during voir dire that [the victim’s
mother] told her over the phone that her son had been
raped, but did not disclose the name of the suspect or any
details of the event or the investigation. Furrow agreed
that she would not necessarily assume that what [the
victim’s mother] told her was true and that she could
base her judgment on the evidence presented at trial.
Jurors need not be totally ignorant of the facts and issues
involved in the case. [Irvin, 366 U.S. at 722.]
Miller v. Francis, 269 F.3d at 616. In denying habeas relief,
this Court distinguished Miller v. Francis from Hughes by
stating that, unlike Hughes, the trial court held a separate in
camera examination of the juror when she indicated she had
some prior knowledge of the case. During the in camera
examination, the trial court, the prosecutor, and defense
counsel questioned her regarding her knowledge, her
relationship with the victim’s mother, and whether she could
be fair and impartial. Unlike the juror in Hughes, “Furrow
never stated that she could not be fair. While Furrow
expressed some discomfort about sitting on the jury, she
consistently answered that she could be fair.” Id. at 617.
Therefore, the Court was “not constrained to make a finding
of actual bias based upon an undisputed statement of a juror
that she could not be fair in deciding the case.” Id.
Unlike Miller v. Francis, where there was no statement of
partiality, Juror Bell specifically stated she would be “partial”
to Linda Cline. Juror Bell stated that she had “sympathy for
her” and believed she was the “victim.” Juror Bell never
unequivocally stated that she could be fair. On the contrary,
Juror Bell gave a qualified statement of impartiality.
Moreover, unlike Miller v. Francis, where there was
sufficient questioning regarding the relationship between the
juror and the victim’s mother, when Juror Bell stated, “I
believe I could be fair about it all. But I do have some
feelings about her[,]” neither the trial court nor counsel

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No. 02-5907 Miller v. Webb 21
inquired further regarding whether she could be fair and
impartial. Without proper follow-up questions directed
toward rehabilitating the juror or obtaining an assurance of
impartiality, we are left with a situation as in Hughes in which
we found actual bias. Although defense counsel asked Juror
Bell about the women’s section at the Warren County Jail, he
never inquired about whether she could be fair and impartial
despite her “feelings.” He never inquired whether she could
determine the case based on the evidence and the trial court’s
instructions. Consequently, the present case is
distinguishable from Miller v. Francis.
III. CONCLUSION
Because we find counsel’s performance to have been
objectively unreasonable and we find that impaneling a biased
juror prejudiced Miller, the Kentucky Court of Appeals’s
determination that Miller’s trial counsel’s performance was
not constitutionally deficient was an unreasonable application
of Strickland, which is clearly established federal law. We,
therefore, REVERSE the district court’s order denying
Miller’s 28 U.S.C. § 2254 petition, and REMAND the case
with instructions that the district court order Petitioner
released from custody unless the State commences a new trial
within 180 days.
22 Miller v. Webb No. 02-5907
______________
DISSENT
______________
JULIA SMITH GIBBONS, Circuit Judge, dissenting.
Bell’s statements during voir dire do not demonstrate that she
was actually biased against Miller, and the majority errs in
concluding otherwise. Therefore, I respectfully dissent.
As an initial matter, some clarification is in order with
respect to the posture of Miller’s ineffective assistance claim.
No state court addressed the issue of whether Miller’s
counsel’s performance prejudiced him. Consequently, we are
not constrained under AEDPA by any state court ruling on
this matter, and we confront it de novo. See Wiggins v. Smith,
123 S.Ct. 2527, 2542 (2003); Maples v. Stegall, 340 F.3d 433,
437 (6th Cir. 2003). More specifically, no state court
determined that Bell either was or was not actually biased
against Miller, which is a question of fact. Fields v.
Woodford, 309 F.3d 1095, 1103 (9th Cir. 2002); see also
Patton v. Yount, 467 U.S. 1025, 1036 (1984) (characterizing
the question of a particular juror’s impartiality as “one of
historical fact”). And while the district court found that Bell
was not actually biased against Miller, it reached this
conclusion solely on the basis of transcripts from state court
proceedings; hence, we review the conclusion de novo rather
than for clear error. Miller v. Straub, 299 F.3d 570, 579 (6th
Cir. 2002).
A defendant may prove that his counsel’s failure to strike
a juror prejudiced him only by showing “that the juror was
actually biased against him.” Miller v. Francis, 269 F.3d
609, 616 (6th Cir. 2001) (emphasis added); see also Hughes
v. United States, 258 F.3d 453, 458 (6th Cir. 2001)
(“Petitioner’s ‘claim of ineffective assistance of counsel is
grounded in the claim that counsel failed to strike a biased
juror. To maintain a claim that a biased juror prejudiced him,
however, [Petitioner] must show that the juror was actually

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No. 02-5907 Miller v. Webb 23
biased against him.’”) (emphasis added and alteration in
original) (quoting Goeders v. Hundley, 59 F.3d 73, 75 (8th
Cir. 1995)). “Actual bias is ‘bias in fact’ – the existence of a
state of mind that leads to an inference that the person will not
act with entire impartiality.” Hughes, 258 F.3d at 463
(quotation omitted); see also Murphy v. Florida, 421 U.S.
794, 800 (1975) (explaining that a juror is not impartial if
there actually exists “an opinion in the mind of the juror as
will raise the presumption of partiality”) (quotation omitted).
It is distinct from implied bias, which has been described as
arising only in “extreme situations where the relationship
between a prospective juror and some aspect of the litigation
is such that it is highly unlikely that the average person could
remain impartial in his deliberations under the
circumstances.” Person v. Miller, 854 F.2d 656, 664 (4th Cir.
1988); see also United States v. Wood, 299 U.S. 123, 134
(1936) (defining implied bias as “a bias attributable in law to
the prospective juror regardless of actual partiality”).
A juror is impartial if she can disregard her preconceptions
“and render a verdict based on the evidence presented in
court.’” United States v. Angel, 355 F.3d 462, 470 (6th Cir.
2004) (quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)). A
juror’s express assurance that she can do so, although not
necessarily conclusive, cf. Wolfe v. Brigano, 232 F.3d 499,
502 (6th Cir. 2000) (“A court’s refusal to excuse a juror will
not be upheld simply because the court ultimately elicits from
the prospective juror a promise that he will be fair and
impartial.”) (quotation omitted), indicates that she is
impartial. See Angel, 355 F.3d at 470; Miller, 269 F.3d at
616; Hughes, 258 F.3d at 460 (stating that juror assurances of
impartiality may be relied upon “in deciding whether a
defendant has satisfied his burden of proving actual
prejudice”). If a juror makes such an assurance, the defendant
must demonstrate that it is not to be credited since he bears
the burden of proof on actual bias. See Murphy, 421 U.S. at
800 (“[T]he juror’s assurances that he is equal to [the] task [of
deciding a case impartially] cannot be dispositive of the
accused’s rights, and it remains open to the defendant to
24 Miller v. Webb No. 02-5907
1Apparently, in stating that she could be fair in determining “whether
she’s guilty,” Bell momentarily mistook Cline as being the defendant in
the case.
demonstrate the actual existence of such an opinion in the
mind of the juror as will raise the presumption of partiality.”)
(quotation omitted); see also Miller, 269 F.3d at 616-17
(noting that it is a defendant’s burden to show actual bias to
succeed on an ineffective assistance of counsel claim based
on failure to strike a biased juror and finding that the
defendant did not meet this burden because the juror at issue
expressly indicated that she could decide the case impartially
and because there was no reason given to doubt this
assurance). A juror’s close and ongoing relationship with a
person involved in the case may undermine the reliability of
her assurance of impartiality. Wolfe, 232 F.3d at 502; see
also Miller, 269 F.3d at 616-17 (crediting a juror’s assurance
of impartiality despite her acquaintance with the victim’s
mother because “there is no indication from the record that
they shared a close personal relationship”). But merely being
acquainted with someone involved in the case does not. See
McQueen v. Scroggy, 99 F.3d 1302, 1320 (6th Cir. 1996)
(“There is no constitutional prohibition against jurors simply
knowing the parties involved . . . . The Constitution does not
require ignorant or uninformed jurors; it requires impartial
jurors.”).
Miller does not succeed in demonstrating that Bell was
actually biased against him. Bell made numerous express
assurances during voir dire that she could decide Miller’s case
fairly. Specifically, in response to the trial court’s question as
to whether she could be fair and impartial despite her
familiarity with and feelings for Cline, Bell replied, “I think
I could be fair. I think I could be fair. . . . I believe I could be
fair and whether she’s guilty or not guilty. I believe I could
be fair about it all.”1 These statements are not so equivocal
in and of themselves as to be untenable. See Miller, 269 F.3d
at 618 (crediting statements by juror that “I think I could be

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No. 02-5907 Miller v. Webb 25
fair” and “I don’t really think that I would be biased”).
Indeed, “venire members commonly couch their responses to
questions concerning bias in terms of ‘I think’” such that “the
use of such language cannot necessarily be construed as
equivocation.” Id.
Furthermore, Miller provides no reason to doubt the
validity of Bell’s assurances. As evidenced by the fact that
Bell had not seen Cline in at least a year at the time of voir
dire, the two did not share a close and ongoing relationship.
Nor is there any reason to believe that Bell’s sympathy for
Cline was so strong as to undermine the reliability of her
assurance that she could evaluate the case fairly and
impartially. Expressions of sympathy for a victim, without
more, do not demonstrate actual bias where the juror has
assured the court that she may decide the case fairly. For
example, in Ainsworth v. Calderon, 138 F.3d 787, 796 (9th
Cir. 1998), a juror indicated during voir dire that “she was
unsure whether she could disregard the information she had
gathered from news sources and decide the case based only on
the evidence presented at trial.” The defendant sought a
change of venue, which was denied. Id. at 795. On habeas
review, he claimed that this denial was erroneous because the
juror in question was actually prejudiced against him. Id. at
795-96. The court rejected this assertion, noting that there
was “no indication that [the juror] had the opinion that [the
defendant] was the murderer, and she repeatedly stated she
could set aside her feelings of sympathy for [the victim] in
order to judge the case fairly.” Id. at 796; see also Celestine
v. Blackburn, 750 F.2d 353, 360 (5th Cir. 1984) (holding that
state court did not err in refusing to dismiss for cause a juror
who knew the granddaughter of the victim because, even
though her testimony at voir dire indicated her emotions
might affect her ability to deliberate, “she consistently stated
that her feelings would not so influence her as to prejudice her
against [the defendant]” and “[s]he had not discussed the
murder with the granddaughter, and she repeatedly denied
bias”). As in Ainsworth, Bell repeatedly stated that she could
decide the case fairly despite her sympathy for Cline, and she
26 Miller v. Webb No. 02-5907
never stated that she believed Miller was the murderer. Also,
as in Celestine, there is no indication that she discussed the
crime at issue with Cline.
In sum, Miller fails to meet his burden of showing that Bell
possessed actual bias against him, and, as a result, he also
fails to meet his burden of showing that his counsel’s failure
to strike Bell was prejudicial. Thus, we should affirm the
district court’s denial of Miller’s ineffective assistance claim
and of his petition for a writ of habeas corpus more generally.
The majority, of course, reaches a contrary conclusion. It
finds that, although Bell stated “I think I could be fair,” she
never made an unequivocal statement of impartiality and, in
fact, made express statements of partiality. There are
numerous problems with this conclusion and the manner in
which the majority reaches it. First, Bell said much more
than “I think I could be fair”:
I think I could be fair. I think I could be fair. I
ministered in the women’s section for about four years.
[Cline] was kind of in and out, but she seemed like she
wanted to do better, but I believe I could be fair and
whether she’s guilty or not guilty. I believe I could be
fair about it all.
Far from saying so in an isolated statement, Bell reiterated
again and again that – despite her familiarity with Cline – she
could decide Miller’s case fairly.
Additionally, by describing them as statements of partiality,
the majority ascribes significance to certain of Bell’s
statements that the words do not justify. For example, the
majority latches on to Bell’s initial comments that “I feel like
I would kind of be partial to Linda Cline” and “I kind of have
sympathy for her in this case, with her being the victim.”
First of all, these “kind of” statements are hardly unequivocal.
Second, as discussed, expressions of sympathy for a victim
do not necessarily demonstrate partiality. Third, the majority

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No. 02-5907 Miller v. Webb 27
injects legal content into Bell’s use of the term “partial,”
construing it to mean that she cannot decide the case on the
evidence before her and that she is admitting bias against
Miller. However, her full testimony indicates that Bell uses
“partial” to indicate sympathy, or having a liking or fondness
for, Oxford English Dictionary (2d ed. 1989), Cline.
Moreover, imputing import to Bell’s use of the word “partial”
and to her initial indication of sympathy for Cline
conveniently ignores the fact that, after she made these
statements, the trial court, apparently concerned about Bell’s
potential partiality, immediately questioned her about her
ability to serve on the jury impartially, to which Bell
responded repeatedly that she could be fair in deciding
Miller’s case.
Ultimately, however, the linchpin of the majority’s
conclusion that Bell unequivocally indicated partiality is the
fact that, after stating for the last time that she could decide
Miller’s case fairly, she said, “But I do have feelings about
[Cline].” While this remark may constitute a statement of
partiality in the sense that it evidences empathy for Cline,
Bell is not asserting that she would not be able to decide fairly
Miller’s guilt or innocence. Rather, the statement was simply
a reaffirmation of Bell’s earlier statement that “she kind of
[had] sympathy for Cline, with her being the victim,” a
feeling she repeatedly explained would not affect her ability
to decide Miller’s case fairly. At no point did Bell ever
indicate that her concern for Cline would make her more
likely to accept Cline’s testimony as true, would predispose
her to credit evidence offered against Miller, would lead her
to discount testimony offered on Miller’s behalf, or would in
any way incline her to believe that Miller was guilty. The
only express statements we have from Bell regarding her
ability to decide the case are: “I think I could be fair. I think
I could be fair. . . . I believe I could be fair and whether she’s
guilty or not guilty. I believe I could be fair about it all.”
28 Miller v. Webb No. 02-5907
2At most, the majority could conclude – though I would still disagree
– that Bell’s statements of feelings toward Cline undermine her assertion
of impartiality, see W olfe, 232 F.3d at 502 (“[T]he sec ond juror’s
assessment that she could be fair and impartial [is] untenable [] in light of
both the close relationship between the juror and the victim’s family, and
the fact that she knew the family’s theory of the victim’s death.”), but to
characterize them as statements of pa rtiality in and of themselves is
unfounded.
Because Miller has not articulated a valid reason to disregard
these statements, they deserve our credence.2
In reaching its conclusion, the majority analogizes this case
to Hughes. The analogy is inapt. In Hughes, the juror
unequivocally stated during voir dire, “I don’t think I could
be fair.” 258 F.3d at 456. In response, the trial court asked
the juror, “You don’t think you could be fair?”, to which the
juror starkly replied, “No.” Id. Most importantly, the juror
never individually stated or suggested whatsoever that she
could be impartial, either initially or through rehabilitation.
Id. at 460 (“[The juror] never said that she would be able to
render a fair and impartial verdict.”). Left only with a
statement in the record that she could not be fair, this court
was able to presume the juror was partial and actually biased
against the defendant. Id.; see also Miller, 269 F.3d at 617
(“Because the only evidence relevant to the issue of bias [in
Hughes] was the juror’s statement that she did not think she
could be fair, we had no choice but to find actual bias.”)
(emphasis added).
The case sub judice could not be more different. Here, Bell
never stated that she did not think she could be fair. Quite the
contrary, she stated that she believed she could be fair “about
it all.” And she said so again and again. In an attempt to fit
this case within the bounds of Hughes, the majority posits that
it is “ultimately left with a statement of partiality” without
“juror assurances of impartiality,” whereas, in reality, we are
left with numerous statements of impartiality without any
express assertion from Bell that she could not decide the case

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No. 02-5907 Miller v. Webb 29
fairly. In other words, what enabled the court in Hughes to
presume partiality – a blatant statement of partiality and
absolutely no contrary statement from the juror that he could
be impartial – is glaringly absent here. Thus, to reach its
conclusion, the majority contorts the holding of Hughes,
which stands for the proposition that a juror may be presumed
to be actually biased against a defendant when he makes no
express statements of impartiality but instead expressly states
that he does not believe he can be fair in determining a
defendant’s innocence or guilt and no effort is made to
rehabilitate that juror specifically. The court unjustifiably
extends this holding to allow for a presumption of partiality
even when the juror has made express statements of
impartiality.
The majority also analogizes this case to Wolfe. In Wolfe,
the court found that the trial court erred in failing to excuse
four jurors for cause. 232 F.3d at 502-03. However, each of
these jurors expressly doubted his or her ability to decide the
case fairly. One juror “did not think he could be a fair and
impartial juror.” Id. at 502. The second juror stated it was
“hard to say” whether her relationship with the victim’s
parents would impact her ability to deliberate fairly. Id. The
third juror “expressed doubt as to whether she could put aside
[news] reports and decide the case solely on the evidence
presented at trial.” Id. at 502-03. Finally, the fourth juror
“doubted he would require the prosecution to prove its case
beyond a reasonable doubt.” Id. at 503. When asked about
her partiality, Bell expressed no such doubt about her ability
to decide Miller’s case fairly. Wolfe is simply inapposite.
One final difficulty I have with the majority’s holding is
that it reduces the inquiry into a juror’s actual bias to a
question of chronology. If a juror swears repeatedly that she
can be fair in deciding a defendant’s innocence or guilt but
then indicates in her final statement that she has some degree
of sympathy for the victim, the majority would have it that a
court can only conclude that the juror is actually biased
against the defendant. I simply cannot subscribe to this
30 Miller v. Webb No. 02-5907
conclusion. In assessing whether a juror was actually biased
against a defendant, we should consider the totality of her
statements, see Hightower v. Schofield, 365 F.3d 1008, 1041
(11th Cir. 2004); see also Miller, 269 F.3d at 618
(considering all the statements made by the juror during voir
dire); cf. Pruett v. Norris, 153 F.3d 579, 587 (8th Cir. 1998)
(assessing actual prejudice under the totality of the
circumstances); Stafford v. Saffle, 34 F.3d 1557, 1567 (10th
Cir. 1994) (“We review actual prejudice by examining the
totality of the circumstances.”), not merely the statement that
comes last-in-time.
I do not believe that the totality of Bell’s statements
demonstrates that she was actually biased against Miller.
Hence, I also believe that Miller’s counsel’s performance was
not so objectively unreasonable as to be deficient under
Strickland v. Washington, 466 U.S. 668 (1984). Cf. Miller,
269 F.3d at 618-19 (“[T]he trial court cannot be faulted for
not disqualifying for cause a juror who consistently says that
she thinks she can be fair.”). In conclusion, I would affirm
the district court’s denial of Miller’s ineffective assistance of
counsel claim and, ultimately, its denial of his petition for a
writ of habeas corpus. Since the majority does otherwise, I
respectfully dissent.

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