Virgil v. Dretke
| Decision Date | 18 April 2006 |
| Docket Number | No. 03-21129.,03-21129. |
| Citation | 446 F.3d 598 |
| Parties | Frank VIRGIL, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Charles Ernest Baruch (argued), The Law Office of Chad Baruch, Rowlett, TX, for Virgil.
Toni Raven Estaville (argued), Thomas M. Jones, Austin, TX, for Dretke.
Appeal from the United States District Court for the Southern District of Texas.
Before JONES, Chief Judge, and JOLLY and HIGGINBOTHAM, Circuit Judges.
We confront here a situation in which two persons, both expressly stating an inability to serve as fair and impartial jurors, found their way onto the jury that convicted Frank Virgil and sentenced him to thirty years in prison. Virgil, now seeking a writ of habeas corpus, contends that counsel's failure to challenge for cause these two jurors deprived him of his Sixth Amendment right to effective assistance of counsel. We agree and hold that the state court's decision to the contrary was an unreasonable application of clearly established Federal law as determined by the Supreme Court.
Frank Virgil was convicted and sentenced to thirty years in prison for causing bodily injury to an elderly person in violation of Texas Penal Code § 22.04.1 His conviction was affirmed on direct appeal,2 and his petition for discretionary review was denied.3 Virgil, proceeding pro se, initiated state habeas proceedings, and the court ordered defense counsel, John Carrigan, to file an affidavit in accordance with the guidelines set out in Ex parte Morse.4 The Texas Court of Criminal Appeals denied Virgil's petition on the findings of the trial court without hearing or written order.
Again proceeding pro se, Virgil sought federal habeas relief under 28 U.S.C. § 2254, claiming, among other things, ineffective assistance of counsel. The district court denied Virgil's habeas petition and, sua sponte, denied Virgil a certificate of appealability ("COA").5 Virgil timely filed a notice of appeal.
A single judge of this Court granted a COA on the issue of whether Virgil's counsel was ineffective for failing to challenge for cause biased jurors, finding that the affidavit submitted by Virgil's counsel in connection with the state habeas proceeding fell "short of demonstrating sound trial strategy inasmuch as he failed to explain why he did not challenge for cause the five jurors that Virgil identified as being biased."6 Thus, "[C]ounsel's strategy appears to have been `so ill chosen that it permeate[d] the entire trial with obvious unfairness.'"7 The judge denied a COA on all other issues.
Virgil's ineffective assistance of counsel claim centers on the performance of his attorney during voir dire. Specifically, Virgil contends that Carrigan was ineffective for failing to challenge for cause Roger Sumlin, Thomas Sims, Eva Saddler, Grant Faulconer, and Mary Jarboe ("the challenged jurors") — all members of the venire that sat on the petit jury. Virgil argues that each of the five challenged jurors stated during voir dire that they could not be fair and impartial in his case. As part of our analysis in deciding ineffective assistance of counsel claims is "to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time,"8 we provide an extended discussion of the voir dire proceeding.
Carrigan's strategy during voir dire appears to center around a single question. Specifically, Carrigan stated:
My general question to each of you is this and I may ask each of you individually: Let's assume in a hypothetical case, you as a juror — not necessarily in this jury panel, but in any kind of panel — you find out that a defendant has been convicted before of an offense which is not the same offense for which that person is charged and which you are on a jury, would you — if you served on that particular jury, would you believe that defendant who's had a prior case filed against him? Would you believe him at all or disbelieve him at all?
In other words, would you give that defendant the same benefit of credibility as you would anybody else? If you don't mind, I'd like to go down the list simply by juror numbers.9
Carrigan proceeded to ask each venireperson the above question, varying the phrasing at times to ask whether they could be "fair" with respect to the testimony of a person convicted of a prior offense.10 Of the 14 venirepersons struck with peremptory challenges, all but one responded in a fashion similar to the five challenged jurors.
With three of the challenged jurors, Saddler, Faulconer, and Jarboe, their response to this question was essentially their only testimony during voir dire. The following colloquy occurred:
Both Sumlin and Sims volunteered additional testimony that Virgil now contends illustrates their inability to be impartial jurors. Carrigan asked the venire whether relationships with law-enforcement officers would prejudice them as jurors in Virgil's case. Of the challenged jurors, only Sumlin responded:
MR. CARRIGAN: Okay. How many on this panel have either been prior police officers, peace officers or related to someone in law enforcement? A whole bunch of you.
Well, let me put it this way: If you were chosen on this jury panel, is there anything about your prior experience with having been related to a peace officer that would disqualify you or cause you to be prejudiced against a criminal defendant?
Any of you that held up your hand, do you think you would be prejudiced against the defendant from any way because of your association with any person in your family or anyone that you have known was a peace officer? Anyone would be prejudiced at all.
As Carrigan concluded voir dire, he asked a final, open-ended question concerning prejudice. Of the challenged jurors, only Sims responded:
MR. CARRIGAN: I guess what I'm asking each of you is: Is there anything in your background which would cause you to be prejudiced or have an unfavorable opinion against a defendant charged with such a crime?
Is there anything in anybody's background that would cause you not to be a fair and impartial juror in Mr. Virgil's case, in this particular case, at this particular time, in this courtroom?
This sets out the bulk of the testimony of the five challenged jurors.15 At no point during voir dire did counsel attempt to clarify, confirm, or rehabilitate this testimony. Moreover, the trial judge never expressed any concern regarding the statements by the five challenged jurors regarding their ability to be fair.
As this case comes to us under 28 U.S.C. § 2254, our review is limited by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which provides that habeas relief may not be granted unless the state court proceeding resulted in "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court."16 A merely incorrect state court decision is not sufficient to constitute an unreasonable application of federal law; rather, the decision must be objectively unreasonable.17 Habeas relief is "inappropriate when a state court, at a minimum, reaches a `satisfactory conclusion.'"18
Because we review only the reasonableness of a state court's ultimate decision, the AEDPA inquiry is not altered when, as in this case, state habeas relief is denied without a written opinion.19 In this situation, we assume "that the state court applied the proper `clearly established Federal law,'" and then determine "whether its decision was `contrary to' or `an objectively unreasonable application of' that law."20 Virgil's ineffective assistance of counsel claim involves mixed questions of law...
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