Morales v. Thaler

• Citation: 714 F.3d 295
• Decision Date: 16 April 2013
• Docket Number: No. 12–50341.,12–50341.
• Parties: David MORALES, Petitioner–Appellee, v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

714 F.3d 295

David MORALES, Petitioner–Appellee,

v.Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellant.

No. 12–50341.

United States Court of Appeals, Fifth Circuit.

April 16, 2013.

Matthew Rex DeKoatz, Law Offices of Matthew R. DeKoatz, El Paso, TX, for Petitioner–Appellee.

Andrew S. Oldham, Deputy Solicitor General, Office of the Attorney General, Office of the Solicitor General, Melissa L. Hargis, Office of the Attorney General, Postconviction Litigation Division, Austin, TX, for Respondent–Appellant.

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

Before REAVLEY, JOLLY, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The district court granted habeas corpus relief to David Morales after his claim had been denied on the merits in state proceedings. The state appeals, urging that the relitigation bar in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), forbade the court to disregard the state courts' factual findings and legal conclusions. We agree, so we reverse and render a judgment of dismissal.

I.

Morales was convicted of one count of aggravated sexual assault of a child and one count of indecency with a child and sentenced to thirty-five years on the first count and twenty on the second. The complaining witness, E.O., testified that when she was six years old, Morales lured her into a bathroom, where he touched and penetrated her vagina with his index and middle fingers.

At his trial almost nine years later, Morales was represented by Charles Roberts and Angelina Lugo. The trial court was unable to impanel a jury on its first attempt. During the second attempt,

One of the prospective jurors ... was Robyn Wyatt, who was a prosecutor in the El Paso County District Attorney's Office, the same office that was prosecuting [Morales]. During voir dire, Wyatt maintained without contradiction that she could be fair and impartial despite her employment and her acquaintance with the State's prosecutors, investigators, law enforcement personnel, the judge, and defense counsel. Additionally, Wyatt stated that she had not worked on [Morales's] case. [Morales], however, challenged Wyatt for cause, arguing that she was an actual party to the case because she was a member of the district attorney's office. The trial judge denied [Morales's] challenge, noting that Wyatt was not shown to be biased and that [Texas law] does not make her subject to a challenge for cause based solely upon her occupation as an assistant district attorney.

State v. Morales, 253 S.W.3d 686, 689 (Tex.Crim.App.2008).

Roberts used all ten of his peremptory strikes, plus an eleventh on a potential alternate juror. That left eighteen potential jurors, so the state used only three strikes, plus one on an alternate. Neither side used a strike on Wyatt, who served as the presiding juror. Because Roberts failed to strike Wyatt, he did not preserve error, if any, on the denial of his challenge for cause. Id.

Morales moved for a new trial alleging, as relevant here, that his trial attorneys provided ineffective assistance of counsel (“IAC”) when they failed to preserve error by declining to use a peremptory challenge against Wyatt.

Attached to the motion were affidavits from [Roberts and Lugo] in which they said that they “left [Wyatt] on the jury without looking at” her juror questionnaire. [Roberts] explained in his affidavit that he failed to examine Wyatt's questionnaire before trial because he assumed that she would “automatically” be struck because of her status as an assistant district attorney but that they “were confronted with several bad choices when [they] had to make the strikes” at the end of voir dire, and they made the choice to retain her on the jury—again, without first examining her questionnaire. He maintained that had he read Wyatt's questionnaire, he would have exercised one of his peremptory challenges against her because of the “magnitude” of her connections to law enforcement (her father had been a police officer for 33 years, and she had “many, many friends” in law enforcement, according to her questionnaire), and because of the fact (also contained in Wyatt's questionnaire) “that she was repeatedly the victim of numerous crimes (including sex crimes)[.]” Both attorneys said in their affidavits that their failure to strike Wyatt had amounted to ineffective assistance of counsel.

Id. at 689–90 (second, fourth, and fifth alterations in original).

The trial court held a hearing, during which Roberts testified that he understood the procedure for preserving error and had no strategic justification for leaving Wyatt on the jury. “It was a decision that I kind of made in a vacuum,” he said. “[B]ecause I had decided that she would be struck anyway, I never—I made the mistake of never, ever looking at her sheet.” Roberts assumed that Lugo would look at her questionnaire, conceded on cross-examination that he “did make a decision that day, clearly, to not strike her,” but could not “really understand how we left her on the jury.” For any defense counsel to leave “a lawyer for the State” on a criminal jury, he opined, was “per se, ineffective assistance of counsel.” Id. at 690.¹

The state called Judge Sam Medrano, Jr., who testified concerning a conversation he had with Roberts while the jury was deliberating. The two wondered why the jury had been deliberating for so long. “[W]hen a prosecutor is the presiding juror,” Medrano told Roberts, “I would assume it's going to take a while before they come back with questions or a verdict[.]” Id. According to Medrano,

[Roberts] indicated to me that it was a decision on their part to leave [Wyatt] on the jury. There were certain factors that were taken into account. He indicated ... that there was a male juror who was college-educated from Louisiana and was a Republican, and that was a person that they felt they needed to strike more than Robyn Wyatt, and that Ms. Wyatt was a prosecutor that they had dealt with in the office who was as fair a prosecutor as they've ever dealt with, and that they felt comfortable with her being a juror in this case because of their working relationship with her as a prosecutor.

Id. at 690–91 (second alteration in original). As Medrano remembered their conversation, Roberts told him that “he had taken into account the fact that she was a prosecutor and made a decision to leave her on as a juror.” Id. at 691.

Roberts was recalled to the stand and admitted that Medrano accurately recounted their conversation. He acknowledged he had decided not to strike Wyatt but insisted he had not had extensive discussions about it beforehand with Lugo. As to the explanation he offered the judge—“I think I was less than candid to Judge Medrano because I wasn't testifying and I wasn't—I was just trying to put the best face on it that I could.” Id. The trial court denied Morales's motion for a new trial.

On appeal, Morales argued that the trial court erred in denying his challenge to Wyatt for cause and that his counsel provided IAC by failing to use a peremptory strike to preserve the issue. The appeals court held that Morales had waived the challenge for cause but that Wyatt should have been disqualified under the “implied bias” doctrine, that his counsel rendered IAC by failing to preserve the error, and that Morales suffered prejudice (“trial before a partial jury”) as a result. Id. at 691–92. The court focused on the concurring opinion in Smith v. Phillips, 455 U.S. 209, 221, 222, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982), in which Justice O'Connor, writing only for herself, maintained that “some extreme situations ... would justify a finding of implied bias. Some examples might include a revelation that the juror is an actual employee of the prosecuting agency[.]”

The Texas Court of Criminal Appeals (“TCCA”) reversed. Assuming arguendo that Wyatt was challengeable for cause under the implied-bias doctrine, the court reasoned that trial counsel could have made a legitimate strategic decision to forgo such a challenge in return for a more favorable jury overall. Morales, 253 S.W.3d at 692. The court held that

if the exigencies of trial call upon trial counsel to make a difficult choice between exercising a scarce peremptory challenge to preserve such an error for appeal, on the one hand, and exercising that peremptory challenge for some other purpose in order to secure a perceived advantage at trial, on the other, it does not violate the defendant's Sixth Amendment right to the effective assistance of counsel for trial counsel to opt for the latter.

Id. at 696. The right to an impartial jury, reasoned the TCCA, is a waivable right, subject to legitimate strategic considerations. If defense counsel can legitimately choose to impanel a juror who is actually biased against the defendant, see Delrio v. State, 840 S.W.2d 443, 445–46 (Tex.Crim.App.1992), they could choose to impanel one who is only impliedly biased, Morales, 253 S.W.3d at 698.

The court then considered the hearing testimony, especially Roberts's statement to Medrano that they were “comfortable” leaving “as fair a prosecutor as they've ever dealt with” on the jury. From this, “the trial court could rationally infer that [Morales's] trial attorneys made a difficult tactical decision to leave Wyatt on the jury” and could have credited Medrano's testimony while finding Roberts's and Lugo's incredible. “Reviewing courts,” the court noted, “are bound to defer to such implicit findings of fact.” Id. Therefore, because trial counsel legitimately could have made a strategic choice to leave Wyatt on the jury, and because it was required to defer to the trial court's factual determination that Morales's attorneys had done so, the court concluded that the failure to use a peremptory strike did not amount to IAC. Id. at 698–99.

Morales next applied for state postconviction...