Solis v. Cockrell

• Decision Date: 06 August 2003
• Docket Number: No. 01-40354.,01-40354.
• Citation: 342 F.3d 392
• Parties: Juan Montelongo SOLIS, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

342 F.3d 392

Juan Montelongo SOLIS, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 01-40354.

United States Court of Appeals, Fifth Circuit.

August 6, 2003.

Roland E. Dahlin, II, Fed. Pub. Def., Brent Evan Newton, Asst. Fed. Pub. Def. (argued), Houston, TX, for Petitioner-Appellant.

Ellen Stewart-Klein (argued), Austin, TX, for Respondent-Appellee.

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

Before HIGGINBOTHAM, EMILIO M. GARZA and DENNIS, Circuit Judges.

PATRICK E. HIGGINBOTHAMCircuit Judge:

In this federal habeas petition, Juan Montelongo Solis challenges his 1994 Texas state conviction for burglary of a habitation on the ground that a juror's belief that Solis and his brothers had a reputation for breaking into houses biased the juror against him as a matter of law. We cannot agree, and affirm the district court's denial of habeas relief.

I.

Solis was tried in Hidalgo County, Texas in December 1994. The charge was that Solis stole carpenter's tools from the garage of Gloria Martinez in San Juan, Texas. Solis had worked for Martinez's husband, who was a carpenter, earlier in the week of the burglary. The jury convicted Solis and the trial court sentenced him to sixty years' imprisonment.

During jury selection, the judge instructed Solis to stand up so that the jurors could see him, and told the venire, "We want you to look at him because, obviously, if you're related to him or you know something about him, it would be inappropriate for you to be a juror in this case. These lawyers will be asking you about it." The prosecutor inquired if any of the jurors were from San Juan; two jurors, Cantu and Rodriguez, raised their hands and said that they were. The prosecutor asked them, in the presence of the rest of the venire, whether they knew or had ever seen Solis. The prosecutor also told the members of the venire that if there was anything they would rather answer in private than in front of the rest of the panel, "just let us know and we'll talk to you individually with the Court." Despite these inquiries, Juan Tellez did not mention whether he knew or had ever heard of Solis, and was selected as a juror.

During jury deliberations, the jury foreperson, Lopez, sent a note to the trial judge indicating that "one of the jury members lives close to the accused. We need your advice." The judge referred the jury to the portion of the charge instructing them not to consider or discuss any matters not in evidence, including any outside information the jurors might have about any persons connected to the case. Shortly thereafter the jury returned a guilty verdict.

After his conviction, Solis filed a motion for new trial, asserting that juror Tellez, the individual the jury foreperson had referred to in her note to the trial judge, had possessed outside information about Solis that should have been revealed during voir dire and that tainted the jury verdict. The trial court held a hearing, at which Tellez testified that he lived "[n]ot more than two blocks" from Solis and that he had known of Solis and his family for "more than 20 years because [he] used to work with his dad ... harvesting fruit." Tellez also admitted at this hearing that during jury deliberations, he had informed the other jurors that "him [Solis] and some of his brothers will do that ... break into people's homes." In a confusing response, Tellez testified that, at the time he revealed this to the other jurors, he thought that perhaps Solis was not guilty of the charged offense, because "whatever [Solis] took, it was returned. And it could have been an agreement between him and the man [Mr. Martinez]." However, Tellez further stated that he ultimately decided to vote to convict based "on the evidence in this case."

Foreperson Lopez testified that Tellez's statements came after all twelve of the jurors had voted to convict, in response to her question whether anyone wanted to say anything more before she sent out the verdict. Lopez stated that after Tellez started talking about his outside knowledge of Solis, the other jurors told him to stop talking because the information was irrelevant to the case. At that point, Lopez sent the note to the judge asking for his advice because one of the jurors lived close to Solis.

The trial court denied the motion for new trial on the basis that Solis failed to prove that "the information that was known by Juror Tellez in any way, form, or fashion [a]ffected the judgment [of guilty] in this case." A Texas court of appeals affirmed. Solis then filed his state habeas application, contending for the first time that Tellez was biased against him as a matter of law. However, the state trial court and Texas Court of Criminal Appeals erroneously concluded that Solis had raised this claim on direct appeal, and found that he was barred from presenting the claim in habeas proceedings.

In his federal habeas application, he again raised the implied bias issue. The magistrate judge to whom the case was assigned recommended denying the claim based upon a 1972 Ninth Circuit case, Hinojos v. Black, which held that two jurors' belief, at the time of deliberations, that the defendant had been involved in other offenses similar to the one for which he was on trial did not warrant habeas relief.¹ The district court accepted the magistrate judge's report and recommendation, but granted Solis a certificate of appealability on this issue.

II.

Both parties agree that the Texas state courts erroneously rejected the petitioner's implied bias claim on procedural grounds because they believed that Solis had raised this claim on direct appeal. We therefore review the petitioner's claim de novo rather than under the deferential standards provided in the Antiterrorism and Effective Death Penalty Act (AEDPA).²

"The Sixth Amendment requires that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. The Amendment prescribes no specific tests. The bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as [a] matter of law."³ Solis's claim focuses only on juror Tellez's alleged implied bias — not on any actual bias. In her concurrence in Smith v. Phillips, Justice O'Connor reasoned that while in the vast majority of cases a hearing to determine whether the juror was actually biased against the defendant is constitutionally sufficient, "in certain instances a hearing may be inadequate for uncovering a juror's biases."⁴ In those "extreme situations," a court may find the juror biased as a matter of law.⁵ Examples of such circumstances "might include a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction."⁶

Although the Supreme Court has never explicitly upheld a claim of implied bias, in Smith Justice O'Connor suggested that the Court has implicitly done so in reversing a conviction in Leonard v. United States, where the petitioner had been convicted in two successive trials of forging and uttering endorsements on government checks and of transportation of a forged instrument in interstate commerce.⁷ "The jury in the case tried first ... announced its guilty verdict in open court in the presence of the jury panel from which the jurors who were to try the second case ... were selected."⁸ The second jury ultimately contained five jurors who had heard the verdict in the first trial.⁹ In reversing the defendant's judgment of conviction, the Leonard Court quoted with approval the Solicitor General's statement that "[p]rospective jurors who have sat in the courtroom and heard a verdict returned against a man charged with [a] crime in a similar case immediately prior to the trial of another indictment against him should be automatically disqualified from serving at the second trial."¹⁰

Following Justice O'Connor's concurrence in Smith our circuit has recognized the implied bias doctrine, albeit with carefully watched limits. In United States v. Scott, we quoted Justice O'Connor's formulation of implied bias and went on to presume bias on the part of a juror who failed to disclose during voir dire that his brother was a deputy sheriff in the sheriff's office that had performed some of the investigation in the case.¹¹ In Andrews v. Collins, however, we cautioned that "the [Supreme] Court has not looked favorably upon attempts to impute bias to jurors," and that only "extreme situations" would justify such a finding.¹² There we rejected a contention that a juror's attenuated familial connection with the victim warranted a presumption that the juror was biased.¹³ The victim's grandson had, prior to the victim's death, been married to the juror's daughter.¹⁴ However, the grandson had died prior to the victim's death, and no evidence suggested that the juror even knew that he had at one time been related to the victim.¹⁵ We "refuse[d] to impute bias" to the juror on the basis of such a "tenuous relationship" between him and the victim.¹⁶ Similarly, in United States v. Wilson we held that "friendship with the victim of a defendant's alleged crime does not, standing alone, justify a finding of bias."¹⁷

In United States v. Bishop we declined to presume juror bias when a juror failed to disclose during voir dire that she had previously been convicted of a felony, because she explained that she did so only because her lawyer had told her that since she had received deferred adjudication she need not tell anyone about it, such as when applying for a job.¹⁸ Bishop considered two Ninth Circuit cases which found bias as a matter of law — in one case, a prosecution for homicide, a juror failed to reveal...