Opinion
6:23-CV-00677
10-09-2024
CHARLES CHANDLER v. TIM HOOPER
SEC P
DAVID C. JOSEPH, JUDGE
REPORT AND RECOMMENDATION
CAROL B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE
Charles Chandler, proceeding in forma pauperis, filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on May 20, 2023, through counsel. Rec. Doc. 1. Petitioner attacks his conviction for Second-Degree Murder and Felon in Possession of a Firearm and the life sentence imposed by the 16th Judicial District Court, St. Mary Parish. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. §636 and the standing orders of the Court.
I. Background
A. Factual Background
The Petition set forth the following factual background, as recited by the Louisiana First Circuit Court of Appeals in 2016:
On April 28, 2013, between 11:00 p.m. and midnight, three gunshots were fired on Columbus Avenue in Bayou Vista, Louisiana. The gunshots were heard by bystanders and residents of the area, including Gwendolyn Landry Hidalgo, who called 911 immediately after hearing the gunshots. Officers of the St. Mary Parish Sheriff's Office (SMPSO) responded to the scene of the shooting at 1220 Columbus Avenue. Fifteen to twenty people were at the scene when the police arrived, and the scene was in disarray. Patrol Lieutenant Jeremy Green of SMPSO arrived around ten to fifteen minutes after the gunshots were reported. He secured the scene and summoned medical personnel for Wade Blackburn, Jr., the victim. When the police arrived, the victim was lying unresponsive in the carport. Efforts to revive the victim were unsuccessful, and he was pronounced dead at the scene. The
victim suffered a fatal contact gunshot wound to his abdomen. Lieutenant Green located a spent shell casing at the scene. According to Tammy James, the owner of the residence where the shooting occurred, the defendant showed up at her residence looking for the victim that night, and the three shots were fired after the defendant and the victim began tussling over the gun. Fragments from the first gunshot grazed Tammy's stomach, fragments from the second shot hit her daughter, and the third shot struck the victim. The defendant fled from the scene after the shots were fired.
Unbeknownst to Craig Corbett Nini, sometime after the shooting, the defendant hid in the backseat of Nini's truck, which was parked in Bayou Vista at the time. After Nini started his truck and pulled off, the defendant made his presence known and instructed Nini to continue driving. Tyler Emmanuel Brewer, who had ridden with Nini to Bayou Vista, was sitting outside and saw the defendant when he ran and jumped into the back of Nini's truck. Moments later, Brewer observed the police in pursuit of the defendant and informed them that he was in the back of the truck. Shortly after Nini drove off, the police swarmed the vehicle and took custody of the defendant. While executing a search warrant for the defendant's residence at 149 Sun Road, the police located the gun used in the shooting, a Glock 30 .45 caliber semiautomatic pistol, under the TV stand in the defendant's bedroom. The gun had several rounds in the magazine at the time of recovery and a spent cartridge was located in the chamber.Doc. 1, quoting State v. Chandler, 240 So.3d 950 (La.App. 1 Cir. 2017).
B. Procedural Background
Petitioner was charged by grand jury indictment with one (1) count Second-Degree Murder and one (1) count Felon in Possession of a Firearm. Doc. 1, att. 2. He entered a plea of not guilty on August 5, 2013. Jury selection began on May 5, 2015. Doc. 1, att. 3. Petitioner was found guilty as charged on both counts on May 7, 2015. Id. Determining that the evidence was insufficient to sustain a verdict for Second-Degree Murder, on June 25, 2015, the trial court granted a defense motion for post-verdict judgment of acquittal and found Petitioner guilty of the responsive verdict of Manslaughter. Id. The State appealed and in an unpublished opinion, the First Circuit reversed the trial court's ruling. State v. Chandler, Case No. 15-1493 (La.App. 1 Cir. February 24, 2016) (unpublished). The Louisiana Supreme Court denied writs on March 31, 2017. State v. Chandler, 217 So.3d 359 (La. 2017).
The trial court subsequently resentenced Petitioner to life in prison. Petitioner again appealed and the First Circuit upheld his conviction and sentence on December 21, 2017. State v. Chandler, 240 So.3d 950 (La.App. 1 Cir. 2017). Petitioner did not seek writs from the Louisiana Supreme Court.
On December 10, 2018, Petitioner filed an Application for Post-Conviction Relief wherein he raised two iterations of his juror bias claim: First, that the inclusion of a member of the District Attorney's Office, Lynette Rachel, the secretary of the District Attorney whose office prosecuted the case, on his jury represented a Due Process violation, immediately apparent on the face of the record, and poisoning the entire trial; second, that trial counsel was ineffective for failing to challenge the juror for cause. See Application for Post-Conviction Relief, doc. 1, att. 4. Petitioner also indicted counsel's conduct for failing to relay a plea offer and failing to call a crucial defense witness. Id. Lastly, Petitioner asserted a Brady violation for the late, mid-trial disclosure of a second weapon located in the victim's home. Id. On or about December 18, 2018, Petitioner filed his First Supplemental Memorandum, which included transcripts of Petitioner's May 5, 2015, jury selection. See doc. 1, att. 5. On or about January 24, 2019, Petitioner filed a Second Supplemental Memorandum, which included a statement from Petitioner. Doc., 1, att. 6. The State both objected to Petitioner's stand-alone Due Process claim and responded on the merits to his remaining claims. Doc. 1, att. 7.
On May 3, 2019, Petitioner's matter came for a hearing on the State's Procedural Objection. The trial court sustained the State's objection to Claim I of Petitioner's post-conviction application, denying the stand-alone claim for violation of Petitioner's Due Process rights and reserving the additional claims-such as the effectiveness of trial counsel in permitting the juror to be seated-for further proceedings. The First Circuit denied writs on September 30, 2019. State v. Chandler, 2019-KW-0838 (La.App. 1 Cir., Sept. 30, 2019). The Louisiana Supreme Court followed suit on September 27, 2021. State v. Chandler, 324 So.3d 88 (La. 2021).
On April 1, 2022, Petitioner's matter returned to the trial court for an evidentiary hearing. See Transcripts of Post-Conviction Evidentiary Hearing, doc. 1, att. 9. After hearing from several witnesses, the state district court denied relief, stating:
I knew and I believed that Richard Spears trusted this woman. He had a gut feeling that she was going to do the right thing. So it made sense whenever he used a peremptory challenge against someone else he didn't want, someone he didn't know, a stranger, okay? So went by with what he knew. He didn't know who this other alternative juror was, but he knew this lady, Ms. Rachal. And he believed that she would do the right thing. And when you are selecting jurors, sometimes that's all you've got. You think the system would be better, but it's not, even though it's the best system in the world. So for me to say that Mr. Spears exercised ineffective assistance of counsel. I'm going to hold that the defense has failed to prove that claim.Id. at p. 45.
Petitioner sought writs and on September 15, 2022, in a two-to-one ruling, the First Circuit Court of Appeal reversed the trial court's ruling holding: “Counsel's performance was deficient for failing to challenge for cause the prospective juror who was employed as the secretary for the District Attorney for the 16th Judicial District Court.” State ex rel. Charles Chandler v. State of Louisiana, 2022-KW-572 (La.App. 1 Cir. Sept. 15, 2022) The Court further concluded that “The seating of such a juror is presumptively prejudicial, as relator cannot otherwise show what influence the juror's presence had on jury deliberations due to the jury shield law. See La. Code Evid. art. 606(B).” Id.
The State of Louisiana sought the writ of certiorari from the Louisiana Supreme Court on or about October 6, 2022. On December 20, 2022, the Supreme Court granted writs and ordered the parties submit briefs. State v. Chandler, 2022-KP-01506 (La., Dec. 20, 2022). After hearing oral arguments on March 14, 2023, the Louisiana Supreme Court vacated the First Circuit's judgment and reinstituting Petitioner's conviction. State ex rel. Chandler v. State, 2022-KP-1506 (La, May 5, 2023). The Supreme Court stated:
The totality of evidence against respondent was overwhelmingly in favor of guilt. Respondent actively sought out the unarmed victim and angrily confronted him with a gun that was loaded, racked, and ready to fire. Witnesses also testified that after arriving at the scene and before shooting the victim, respondent stated: ‘I'm going to catch a murder charge tonight'. While there was some conflicting testimony from eyewitnesses over both the extent the victim resisted and any struggle over the gun, "the bulk of the testimony supported a finding that the shooting was intentional and that the defendant was in control of the weapon when he fired three shots.” Chandler, 2015-1493, p. 14,2016 WL 759165 *8. The verdict was unanimous. Applying the Strickland standard, we find no basis to conclude the decision reached would reasonably likely have been different if trial counsel had challenged the juror for cause under La.C.Cr.P. art.797(3).Id.
As summarized by the State in the instant habeas proceeding, “This case presented the issue of whether trial counsel was ineffective under Strickland v. Washington for failing to challenge a juror who worked for the district attorney for cause because of her employment and whether that failure is prejudicial under the Strickland analysis.” Doc. 9, att. 1., p. 2.
II. Law and Analysis
A. Standard of Review - 28 U.S.C. § 2254
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, 28 U.S.C. § 2254, governs habeas corpus relief. The AEDPA limits how a federal court may consider habeas claims. After the state courts have “adjudicated the merits” of an inmate's complaints, federal review “is limited to the record that was before the state court[.]” Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
To overcome AEDPA's relitigation bar, a state prisoner must shoehorn his claim into one of its narrow exceptions. Langley v. Prince, 962 F.3d 145, 155 (5th Cir. 2019). As relevant here, he must show the state court's adjudication of the claim "resulted in a decision that was [1] contrary to, or [2] involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Id.; 28 U.S.C. § 2254(d)(1).
The first exception to the relitigation bar-the "contrary to" prong-is generally regarded as the narrower of the two. Id. A state-court decision is "contrary to" clearly established federal law only if it "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if" it resolves "a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Id. (citing Terry Williams v. Taylor, 529 U.S. 362, 413 (2000).
The other exception to § 2254(d)(1)'s relitigation bar is the "unreasonable application" prong, which is almost equally unforgiving. Id. at 156. The Supreme Court has repeatedly held that it is not enough to show the state court was wrong. Id.; see also, Renico v. Lett, 559 U.S. 766, 773 (2010) ("[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." (quotation omitted)); Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ("The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold."). Rather, the relitigation bar forecloses relief unless the prisoner can show the state court was so wrong that the error was "well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. (citing Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam) (quotation omitted). In other words, the unreasonable-application exception asks whether it is "beyond the realm of possibility that a fairminded jurist could" agree with the state court. Id. (citing Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016) (per curiam); see also Sexton v. Beaudreaux, 138 S.Ct. 2555, 2558 (2018) (per curiam) (asking "whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court" (quotation omitted)).
Overcoming AEDPA's relitigation bar is necessary, but not sufficient, to win habeas relief. Even after overcoming the bar, the prisoner still must "show, on de novo review, that [he is] 'in custody in violation of the Constitution or laws or treaties of the United States.'" Id. (citing Salts v. Epps, 676 F.3d 468, 480 (5th Cir. 2012) (quoting 28 U.S.C. § 2254(a)); see also Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) ("[A] habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review [under] § 2254(a).").
Section 2254(d)(2) speaks to factual determinations made by the state courts. Federal courts presume such determinations to be correct; however, a petitioner can rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
B. Implied Bias
At the outset, this Court, as instructed by the United States Fifth Circuit Court of Appeals, finds that the implied doctrine is “clearly established Federal law as determined by the Supreme Court” and was so at the time of the State court's post-conviction ruling in this matter. See Brooks v. Dretke, 444 F.3d 328, 329 (5th Cir. March 22, 2006) (citing 28 U.S.C. § 2254(d)(1); see also United States v. Wood, 299 U.S. 123, 134, 57 S.Ct. 177, 81 L.Ed. 78 (1936) ("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."); McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556-57, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (Blackmun, Stevens, and O'Connor, JJ., concurring) (recognizing that "in exceptional circumstances . . . the facts are such that bias is to be inferred"); Id. at 558 (Brennan and Marshall, JJ., concurring in the judgment) (same); Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L. Rep. 236 (1927) (implying bias and reversing conviction because of a financially interested judge, even though there was no evidence of actual bias). The pedigree of the implied bias doctrine has even older origins. See United States v. Burr, 25 F. Cas. 49, 50, F. Cas. No. 14692g (D. Va. 1807) (Marshall, C.J., riding circuit) (stating that even with individuals under the influence of personal prejudices who state an ability to serve as fair and impartial jurors, there are circumstances in which "the law will not trust him"); Dr. Bonham's Case, 77 Eng. Rep. 646, 652 (C.P. 1610) (Coke, J.) (stating that no man shall be a judge in his own cause); see also Dyer v. Calderon, 151 F.3d 970, 984 (9th Cir. 1998) (en banc) (describing the implied bias doctrine as "a rule so deeply embedded in the fabric of due process that everyone takes it for granted.")).
Petitioner relies heavily on the United States Supreme Court case Smith v. Phillips, 455 U.S. 209 (1982). In that case, the juror in question was seeking employment with the prosecutor's office that was prosecuting the case. While the court recognized the problem of assessing whether the juror was biased in violation of due process clause and the Sixth Amendment, it held that the juror's testimony at a hearing that he could be fair in the trial was sufficient to establish his impartiality in the case. The majority neither rejected nor adopted the implied basis doctrine. However, Justice O'Connor's concurring opinion clarified that the Smith holding “does not foreclose the use of ‘implied bias' in appropriate circumstances. 455 U.S. at 221. She noted that the Supreme Court “has used implied bias to reverse a conviction” in the past. Id. at 223. While finding that “in most instances a postconviction hearing will be adequate to determine whether a juror is biased,” Justice O'Connor demonstrated concern for those “extreme situations” where even a post-verdict hearing would be insufficient:
I am concerned, however, that in certain instances a hearing may be inadequate for uncovering a juror's biases, leaving serious question whether the trial court had subjected the defendant to manifestly unjust procedures resulting in a miscarriage of justice. While each case must turn on its own facts, there are some extreme situations that would justify a finding of implied bias. Some examples 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. Whether or not the state proceedings result in a finding of “no bias,” the Sixth Amendment right to an impartial jury should not allow a verdict to stand under such circumstances.Id. (emphasis added).
The State's contention that the Smith Court “expressly rejected the implied bias argument” (doc. 9, p. 9) is inaccurate. While the Smith Court held that a post-trial hearing to determine wayward jurors' potential for actual bias was a remedy in most cases, the Petitioner contends, and the Courts agrees, that not one syllable in the opinion overrules the centuries-old doctrine of implied bias, either in letter or in spirit. In fact, it was because Justice O'Connor did not read the Smith majority as abolishing the implied bias doctrine that she joined in the opinion: “Because there may be circumstances in which a postconviction hearing will not be adequate to remedy a charge of juror bias,” Justice O'Connor concluded, “it is important for the Court to retain the doctrine of implied bias to preserve Sixth Amendment rights. I read the Court's opinion as not foreclosing the use of implied bias in appropriate situations, and, therefore, I concur.” Id. at 224.
The Fifth Circuit confirmed as much in Brooks, stating, “Nothing in Smith rejects the doctrine of implied bias, as illustrated by Justice O'Connor's concurring opinion.” 444 F.3d at 330. The Brooks ruling has continued to be upheld in this Circuit. As recently as January 2023, the Fifth Circuit held that “[a] juror may be actually biased or, in ‘extreme situations,' bias may be implied as a matter of law.” United States v. Abreu, 2023 U.S. App. LEXIS 1135 (5th Cir. 2023); See also, Morales v. Thaler, 714 F.3d 295 (5th Cir. 2013); Buckner v. Davis, 945 F.3d 906 (5th Cir. 2019); Solis v. Cockrell, 342 F.3d 392, 396 (5th Cir. 2003) (“Following Justice O'Connor's concurrence in Smith, our circuit has recognized the implied bias doctrine, albeit with carefully watched limits.);” United States v. Scott, 854 F.2d 697, 699-700 (5th Cir. 1988) (finding implied bias where a juror withheld that his brother was a deputy in a sheriff's department that investigated the case.)
"Unlike the inquiry for actual bias, in which we examine the juror's answers on voir dire for evidence that she was in fact partial, 'the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced.'" United States v. Cerrato-Reyes, 176 F.3d 1253, 1260 (10th Cir. 1999) (quoting United States v. Torres, 128 F.3d 38, 45 (2nd Cir. 1997). Courts have held that prejudice is to be presumed "'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.'" See Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) (quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988)). The relevant question becomes" whether '[the] case presents a relationship in which the 'potential for substantial emotional involvement, adversely affecting impartiality,' is inherent.'" United States v. Plache, 913 F.2d 1375, 1377 (9th Cir. 1990) (quoting Tinsley, 895 F.2d at 527). Simply stated, there are limited circumstances under which no juror can serve impartially. See Brooks, 444 F.3d at 332 (citing Remmer v. United States, 350 U.S. 377 (1956).
During voir dire in Petitioner's criminal case, Ms. Lynette Daigle Rachal described herself as a “[s]ecretary at the District Attorney's office.” Doc. 1, att. 5, p. 8. Under questioning by the defense, Rachal acknowledged that she was “the secretary for the big cheese, the district attorney.” Id. She identified Mr. Duhe as her supervisor and prosecutor “Mr. [Anthony] Saleme's boss” whom she saw “every day.” Id. at pp. 8-9. When asked if finding Petitioner not guilty would cause potential problems at the office, Juror Rachal replied that there might be “some funny feelings.” Id. at p. 9. Despite this testimony, Rachal was selected as an alternate on the jury. See doc. 1, att. 4, pp. 45-46. The undersigned finds that seating Ms. Rachal on the jury after her peers witnessed this line of questioning and heard Ms. Rachal's answers to same is problematic, to say the least. Did knowing she worked day in and day out with the District Attorney and the Assistant District Attorney prosecuting that case cause the jurors to give her opinions more weight? Did they tend to follow her lead instinctively knowing she was the “secretary for the big cheese?”
On May 6, 2015, Rachal replaced Juror Lionel T. Brooks, Jr. after it was determined that Brooks had a personal relationship with State witness Reginald James. Id. at pp. 47-48.
It would seem that Justice Crichton was on the same page as the undersigned where, in his concurring opinion in the Louisiana Supreme Court's reversal of the First Circuit's ruling on postconviction, he voiced his “alarm” at the “casual, almost flippant manner in which both counsel conducted voir dire:”
At the outset, the judge noted that the juror at issue knew both the district attorney, assistant district attorney, and defense counsel. The court inquired of the prospective juror: ‘[D]o you really think you could give [defendant] a fair trial?' She responded: ‘I'm not saying nothing.' Then, instead of probing into that equivocation, the prosecutor informed the prospective juror: ‘I'm not going to have any questions for you. But please tell my boss I love my job and I'm doing a wonderful job.' While the prosecutor proceeded to pose questions to the other members of the venire, that brief statement was only interaction during voir dire between the prosecutor and the prospective juror.362 So.3d at 353. As the First Circuit noted in its opinion, the jury shield law prevents us from knowing what actual influence her presence had on the jury. See doc. 10, att. 7, p. 227. We do know that the seating of Ms. Rachal was presumptively prejudicial. Id.
On post-conviction, Rachal confirmed that she had worked for the District Attorney's Office for twenty-five years, first in the felony department, then in probation before assuming the role as Phil Haney's secretary. Doc. 1, att. 9, p. 7. “[W]hen Phil retired [in 2015], I became Mr. Duhe's secretary.” Id. Rachal worked in close physical proximity to Mr. Duhe, seeing him on a daily basis. Id. In 2020, as in 2015, Mr. Duhe signed Rachal's bi-weekly paychecks. Id. As highlighted by Petitioner, Ms. Rachal, charged with being an impartial juror, confirmed that she was being paid by one of the parties to the action.
C. Trial counsel was ineffective for failing to challenge Rachal for cause.
Claims of ineffective assistance of counsel are gauged by the guidelines set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Under Strickland, a petitioner must demonstrate: (1) that his counsel's performance was deficient, requiring a showing that the errors were so serious such that he failed to function as "counsel" as guaranteed by the Sixth Amendment, and (2) that the deficiency so prejudiced the defendant that it deprived him of a fair trial. Id. at 2064. The first prong does not require perfect assistance by counsel; rather, petitioner must demonstrate that counsel's representation fell beneath an objective standard of reasonableness. Id. Judges have been cautioned towards deference in their review of attorney performance under Strickland claims in order to "eliminate the potential distorting effect of hindsight." Rector v. Johnson, 120 F.3d 551, 563 (5th Cir. 1997) (quoting Strickland, 104 S.Ct. at 2065) (quotations omitted). Accordingly, the court should "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.
The second prong requires the petitioner to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 104 S.Ct. at 2055-56. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 2056. In other words, the petitioner must show prejudice great enough to create a substantial, rather than conceivable, likelihood of a different result. Pape v. Thaler, 645 F.3d 281, 288 (5th Cir. 2011) (quoting Cullen v. Pinholster, 563 U.S. 170, (2011)). "Both of [Strickland's] prongs must be proven, and the failure to prove one of them will defeat the claim, making it unnecessary to examine the other prong." Williams v. Stephens, 761 F.3d 561, 566-67 (5th Cir. 2014).
In the matter before this Court, Chandler argues that his right to a fair and impartial jury was violated as a result of the ineffective assistance of trial counsel and, as such, he is entitled to habeas relief. Specifically, his implied bias argument is that in certain cases, such as his case where a juror is an employee of the district attorney, that bias can be conclusively presumed as a matter of law without proof that the juror is in fact biased (actual bias) to the extent that his verdict in a case would be affected. In support of this argument Chandler cites a number of state, federal, and United States Supreme Court cases.
In opposition, the State contends that controlling United States Supreme Court jurisprudence “expressly rejected the implied bias argument that the juror should be found to be biased as a matter of law and required a showing of actual bias by the defense at a post-trial hearing” (doc. 9, p. 9) and concludes that Petitioner failed to show that the juror was “actually biased” or that his trial counsel's deficient performance prejudiced his defense (Id. at p. 15).
The basic parameters of an ineffective assistance of counsel claim are not in dispute. As stated above, petitioner must demonstrate: (1) that his counsel's performance was deficient, requiring a showing that the errors were so serious such that he failed to function as "counsel" as guaranteed by the Sixth Amendment, and (2) that the deficiency so prejudiced the defendant that it deprived him of a fair trial. Strickland, supra.
There are two ways a party may establish that a juror is biased and thus incompetent to serve: implied bias and actual bias. Solis v. Cockrell, 342 F.3d 392, 395 (5th Cir. 2003). Implied bias occurs only in a "narrow range of cases" where a juror's relationship to a party or the case raises such doubts about his ability to uphold his oath that he will be presumed biased as a matter of law. Smith v. Phillips, 455 U.S. 209, 222 (1982) (O'Connor, J., concurring); Brooks v. Dretke, 444 F.3d 328, 330 (5th Cir. 2006). Such rare occurrences are when a juror is "employed by the prosecuting agency, [is] a close relative of a participant in the trial, [or is] somehow involved in the transaction that is the subject of the trial." Smith, 455 U.S. at 222; United States v. Bishop, 264 F.3d 535, 554 (5th Cir. 2001).
Where an alleged error is within the “ambit of trial strategy” it cannot be relied upon to establish ineffectiveness of counsel. However, not every choice of counsel is automatically clothed in the presumption of a strategy. See generally, Koon v. Cain, 277 Fed.Appx. 381, 386 (5th Cir. 2008). Courts are instructed to recognize the distinction between strategic judgment calls and plain omissions and are “not required to condone unreasonable decisions parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face of the record that counsel made no strategic decision at all.” Id. The Court agrees with the Petitioner's argument that the decision of whether to seat a biased juror is not a discretionary or strategic one. Trial counsel is not equipped to waive, sua sponte, his client's right to an impartial jury. See generally, Hughes v. United States, 258 F.3d 453 (6th Cir. 2001) (“If counsel's decision not to challenge a biased venireperson could constitute sound trial strategy, then sound trial strategy would include counsel's decision to waive, in effect, a criminal defendant's right to an impartial jury.”) The seating of a biased juror who should have been dismissed for cause requires reversal of the conviction. United States. v Martinez-Salazar, 528 U.S. 304, 314; 120 S.Ct. 774; 145 L.Ed.2d 792 (2000) (“Nor did the district court's ruling result in the seating of any juror who should have been dismissed for cause. As we have recognized, that circumstance would require reversal.”)
At petitioner's post-conviction evidentiary hearing, trial counsel was questioned regarding his choice to allow the District Attorney's personal secretary to sit on his client's petit jury.
Q. Are you familiar with Ms. Lynette Daigle Rachal?
A. Yes, sir.
Q. And how are you familiar with Ms. Rachal?
A. I've just known her since she's been a secretary in the DA's office while I've been around.
Q. How many years, roughly?
A. I probably - I think she was here in St. Mary first before she went to the DA's office in Iberia to work for Phil Haney. So, I would say I've probably known who she was for 20 years.
* * * * *
Q. And so you were aware that at the time that she sat on Mr. Chandler's jury she was being paid by your adversary, the district attorney's office?
A. Yes, sir.
Q. Did you challenge Ms. Rachal for cause?
A. I did not.
Q. And why did you not challenge her for cause?
A. Looking back, it seems crazy that I didn't. But at the time, I think I just had a gut feeling that - that she would be a stand-up juror, nothing more than that.
* * * * *
A. To answer that question, I didn't use that challenge. And I could have back-stricken her. I suspected that the district attorney was going to be forced to use a peremptory challenge at that time. I was surprised that that didn't happen.
Q. That's an interesting point. So why did you feel that - and I can understand the strategy. But why did you feel that the state would ultimately have to burn a perempt?
A. For the very reason that we're here today, that it would - district attorneys - prosecutors are always looking out to make sure that something doesn't enter into the scope of the trial that could throw a monkey wrench into it. If I was the prosecutor, I would not have let her get on there. I'm not judging Mr. Saleme, but I'm just saying that I - I said - I remember thinking when I didn't do it, I'm like, well, Tony's going to do it, and he didn't. Just because, as a prosecutor, it made the trial unclean.
Q. Unclean how? Can you elaborate?
A. The trial would be subject to being upset for this very reason that we're here today, that people would say that's - she had no business on that jury, you know, that it would bring up issues on appeal, on postconviction relief, and give, you know, reason for complaint later.Doc. 1, att. 9, pp. 29-31.
As highlighted by Petitioner, his trial counsel failed to move for a challenge for cause, through Louisiana Code of Criminal Procedure Article 797, even though two hundred years of federal case law gave him the clear authority to do so. On post-conviction, counsel did not even intimate that he understood a challenge for cause was available. Instead, he had hoped the State would show sufficient integrity to protect the fact-finding function of the jury by removing one of its own employees.
Accordingly, the Court finds that trial counsel was ineffective for failing to challenge Rachal for cause.
D. The State Court's Judgment was Contrary to, or Involved an Unreasonable Application of, Clearly Established Federal Law.
Reversing the First Circuit on the issue of ineffective assistance of counsel, the Louisiana Supreme Court held:
The seating of the juror alone does not establish prejudice under Strickland. The court of appeal essentially presumed prejudice, effectively treating this situation as one where there is a total deprivation of the right to counsel or an active conflict of interest impairing counsel's performance. Such a
departure from Strickland is not consistent with the jurisprudence, which has consistently analyzed the decision not to exercise a cause challenge under Strickland's prejudice standard. See, e.g., Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006)... Thus, under La.C.Cr.P.art. 930.2 it was the respondent's burden to prove prejudice. He failed to make that showing.
Just as cause challenges against potential jurors are evaluated case-by-case, prejudice from not exercising a cause challenge must be evaluated case-by-case. Here, the record does not establish prejudice. The verdict is neither unreliable nor would it have likely been different absent the alleged error. The court of appeal ruling is reversed and the ruling of the district court denying respondent's application for post-conviction relief is reinstated.State v. Chandler, 2022-KP-1506, 362 So.3d 347, 352-53 (5/5/2023).
The Louisiana Supreme Court misinterpreted clearly established federal law. It made no finding on whether counsel was deficient under Strickland or whether Juror Rachal's employment with the District Attorney was of the sort that engendered an unacceptable risk of implied bias, even against the juror's best intentions. The Court ignored the clearly established authority which holds-as Justice O'Connor suggested- that in extreme situations such as where “the juror is an actual employee of the prosecuting agency,” a finding of implied bias is justified. Smith, 455 U.S. at 222 (O'Conner, concurring). Nowhere in the Court's judgment did it consider the possibility that a sitting juror with a pecuniary interest in the outcome might offend the Constitution.
In attempting to distinguish its ruling from the Fifth Circuit's position in Virgil, the Louisiana Supreme Court simply noted that Virgil's jurors “unequivocally expressed” their bias, while making no findings regarding Juror Rachal. Had the Court properly addressed Juror Rachal's implied bias, her participation would have been analogous to the admittedly partial jurors in Virgil. Her implied bias as the personal secretary of District Attorney Bo Duhe would have resulted in a biased jury that could not constitutionally convict. The Louisiana Supreme Court's denial of Petitioner's state collateral attack was contrary to the U.S. Supreme Court's holding in Strickland and “left a defect in the trial process that ‘undermine[s] confidence in the outcome.'” Virgil, 446 F.3d at 614.
As noted by the Petitioner, the Louisiana Supreme Court did not actually address the implied bias doctrine or whether Petitioner's counsel was deficient in his performance. The court drew no conclusions regarding the doctrine's continued application or whether Juror Rachal satisfied the “extreme situations” foretold in Justice O'Conner's Smith concurrence such that counsel was ineffective in failing to remove her.
On habeas review, this Court must closely examine the “last related state-court decision” that provided a “relevant rationale” for a particular claim. Wilson v. Sellers, 138 S.Ct. 1188 1192, 200 L.Ed.2d 530 (2018). If the last related state-court decision does not provide a relevant rationale for the relevant claim, we must “look through” that decision and find one that does. Id. In the instant case, the last reasoned decision touching on Juror Rachal's implied bias or counsel's ineffectiveness was issued by the First Circuit Court of Appeal, which held that: “[T]rial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Counsel's performance was deficient for failing to challenge for cause the prospective juror who was employed as the secretary for the District Attorney for the 16th Judicial District Court.” State ex rel. Chandler v. State, 2022-KW-572 (La.App. 1 Cir. Sept. 15, 2022), doc. 10, att. 7, p. 227. This rationale was never challenged or overruled by the Louisiana Supreme Court.
While the Louisiana Supreme Court found there was an inadequate showing of prejudice under Strickland, in his concurring opinion, Justice Crichton expressed a valid concern that “the ultimate holding here may raise the bar too high-and indeed, could make it nearly impossible- for an applicant for post-conviction relief to lodge a successful ineffective assistance of counsel claim when counsel fails to exercise a cause challenge against a potentially biased juror.” 362 So.3d at 353. He concedes that “other than in the extreme scenario presented in Virgil v. Dretke, 446 F.3d 598 (5th Cir. 2006), discussed by the majority, today's opinion does not make clear how an applicant could ever prove prejudice from the seating of a potentially-biased juror if the juror herself expressly denies any bias. The impact of one juror upon the others during the solemn time of deliberations is unknowable by design, and I believe we should leave the door open to the possibility that, in the right case, the seating of one biased juror might destroy the impartiality of the impartial jury guaranteed by the Sixth Amendment-even though the defendant is unable prove that the verdict probably would have been different.” Id. (emphasis added). Justice Crichton concurred with the majority however, finding that the evidence of guilt in this matter was overwhelming.
Petitioner makes a strong case in support of his argument that the evidence in this matter was not overwhelming. “Contrary to the Louisiana Supreme Court's blatant error, there was not a jury polling conducted and no reason to conclude- owing to Louisiana's Jim Crow-era non-unanimous verdict law-that the verdict was unanimous. After all, even the trial court, who sat through the telling of the entire case, remained unconvinced that the evidence presented by the State supported a conviction of Second-Degree Murder. Accordingly, he granted a judgment notwithstanding the verdict, finding Petitioner guilty of Manslaughter.” See doc. 14, p. 7. However, the Court finds that a discussion into the evidence against Petitioner is of no moment to the issue before it today.
After careful consideration, this Court agrees with the Petitioner's contention that if the implied bias doctrine, as adopted by courts of this Circuit, is to mean anything, it is that juror Lynette Rachal, a twenty-five year veteran of the District Attorney's Office of the 16th Judicial District and the personal secretary of the District Attorney represents the highest echelon of those “extreme situations” warned about by Justice O'Conner. The last reasoned decision on counsel's ineffectiveness found that his conduct fell “below objective standards.” This ruling was not clearly contrary to federal law and deserved deference under AEDPA.
III. Conclusion and Recommendation
For the foregoing reasons,
IT IS RECOMMENDED THAT the instant Petition for Writ of Habeas Corpus be GRANTED and the matter is remanded to the state court for a new trial.
Solis v. Cockrell, 342 F.3d 392, 400, fn 44 (5th Cir. 2003) (“The remedy for a valid implied bias claim is a new trial. See Dyer v. Calderon, 151 F.3d 970, 973 n.2 (9th Cir. 1998) ("The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice. Like a judge who is biased, the presence of a biased juror introduces a structural defect not subject to harmless error analysis." (citations omitted)); Johnson v. Armontrout, 961 F.2d 748, 756 (8th Cir. 1992) ("The presence of a biased jury is no less a fundamental structural defect than the presence of a biased judge. We find this claim outside the gamut of harmless error analysis." (citation omitted)).”)
Under the provisions of 28 U.S.C. Section 636(b)(1)(C) and Rule 72(b), parties aggrieved by this recommendation have fourteen (14) days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy of any objections or response to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See, Douglass v. United Services Automobile Association , 79 F.3d 1415 (5th Cir. 1996).
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Unless a Circuit Justice or District Judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. Within fourteen (14) days from service of this Report and Recommendation, the parties may file a memorandum setting forth arguments on whether a certificate of appealability should issue. See 28 U.S.C. § 2253(c)(2). A courtesy copy of the memorandum shall be provided to the District Judge at the time of filing.