McMillon v. Estelle, 75-1926
| Decision Date | 28 November 1975 |
| Docket Number | No. 75-1926,75-1926 |
| Parties | Albert Charles McMILLON, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Laird Palmer, Austin, Tex., for petitioner-appellant.
Max P. Flusche, Jr., Asst. Atty. Gen., State of Texas, Joe Dibrell, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before BROWN, Chief Judge, and RIVES and GEE, Circuit Judges.
This case presents a factual situation unlikely to recur. Appellant McMillon seeks habeas relief from a narcotics conviction on due process grounds because the foreman of the convicting jury was a lawyer with whom both he and his family had previously discussed the facts of his case. The attorney had visited appellant in jail to discuss his case 1 at the request of appellant's mother, but was ultimately not retained. Although appellant recognized her during jury selection, he never informed his trial attorney. The foreman-lawyer testified that she did not then and does not now remember ever meeting McMillon. The trial court found that she was not prejudiced against appellant and refused to grant habeas relief.
In this circuit a party attacking the integrity of a jury on the ground of a juror's prejudice must prove that prejudice by a preponderance of the evidence. United States v. Cashio, 420 F.2d 1132 (5th Cir.), Cert. denied, 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 (1970). 2 The trial judge found that McMillon failed to show prejudice, and we think the evidence supports that finding. 3 Appellant would have us adopt a per se rule of prejudice, but we refuse to do so, holding only that on the facts of this case the lower court's ruling was not clearly erroneous. 4
Affirmed.
1 And hear him insist on his innocence.
2 See also Williams v. United States, 418 F.2d 372 (10th Cir. 1969), recognizing that a court may presume inherent prejudice as a matter of law if the party alleging prejudice shows a juror's actual bias or intentional withholding of facts. The Sixth Circuit case of United States v. Ferguson, 486 F.2d 968 (6th Cir. 1973), on which appellant relies, is inapplicable because it involved improper communication with a juror during trial, while our case involves no such misconduct.
3 The foreman insisted that she based her decisions as a juror solely on the facts adduced at...
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U.S. v. White, 74-3281
...effect his position might have on his opinion. Prejudice of a juror will not be presumed, but must be demonstrated. See McMillon v. Estelle, 5 Cir., 1975, 523 F.2d 1249; United States v. Cashio, 5 Cir. 1969, 420 F.2d 1132, cert. denied, 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 Appellant......
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De La Rosa v. State of Tex.
...id. It was incumbent upon De La Rosa to prove the existence of juror prejudice by a preponderance of the evidence. See McMillon v. Estelle, 523 F.2d 1249 (5th Cir.1975); United States v. Robbins, 500 F.2d 650, 652-54 (5th Cir.1974); Williams v. United States, 418 F.2d 372, 376-77 (10th Cir.......
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...credible evidence. U. S. v. Riley,544 F.2d 237 (CA5), Cert. denied, 430 U.S. 932, 97 S.Ct. 1554, 51 L.Ed.2d 777 (1977); McMillon v. Estelle, 523 F.2d 1249 (CA5, 1975); U. S. v. Wayman, 510 F.2d 1020 (CA5), Cert. denied, 423 U.S. 846, 96 S.Ct. 84, 46 L.Ed.2d 67 (1975). We have at least impli......