Case: 13-10254    Date Filed: 09/22/2014   Page: 1 of 15




                                                         [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10254
                      ________________________

                 D.C. Docket No. 9:12-cv-80218-KAM



GUS FENNELL,

                                                          Petitioner-Appellant,

                                 versus



SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                        Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                          (September 22, 2014)
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Before HULL, MARCUS, and BLACK, Circuit Judges.

PER CURIAM:

      Gus Fennell, a Florida prisoner convicted of first-degree murder, appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. Fennell’s

§ 2254 petition claimed that his trial counsel in state court provided ineffective

assistance by failing to strike juror Kallim Abdool. The Florida post-conviction

court ruled that Fennell had not shown that juror Abdool was actually biased, and,

thus, his trial counsel was not ineffective under Strickland v. Washington, 

, 

(1984).

      This Court granted a certificate of appealability as to:

      [w]hether the state court’s determination that Mr. Fennell’s trial
      counsel was not ineffective for failing to strike juror Kallim Abdool
      for cause was contrary to, or involved an unreasonable application of
      clearly established federal law, or was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      state court proceeding?

After review, we affirm.

                            I. BACKGROUND FACTS

A.    Jury Selection in State Trial Court

      In 2003, in Florida state court, Fennell was charged with the first-degree

murder of his girlfriend, Ernestine Monds, and with unlawful possession of a

firearm. The state trial court granted Fennell’s request to sever the two counts and

try the murder count first. After a trial, the jury found Fennell guilty of firstdegree
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murder, and the state trial court imposed a life sentence. Later, Fennell pled guilty

to the firearm count, and the state trial court imposed a 44.85-month sentence, to

run concurrent with his life sentence.

      Because this appeal concerns only defense counsel’s actions during jury

selection, we review voir dire.

      At the beginning of voir dire, the state trial court explained to the potential

jurors some basic trial principles, such as the government’s burden of proof, the

jury’s fact-finding role, and the defendant’s right not to testify or present evidence,

and asked whether anyone needed to be excused. The state trial court, with the

parties’ agreement, excused several panel members for cause for various reasons,

such as the inability to understand English, work conflicts, and health concerns.

      The attorneys asked the remaining panel members follow-up questions.

Among other things, the prosecutor asked if anyone, given the nature of the charge,

felt that he or she could not judge the facts fairly. Several potential jurors, but not

Abdool, expressed concerns. The prosecutor asked the panel members if there

was anything else that might prevent them from being an impartial juror, and no

one raised a hand.

      Then Fennell’s trial counsel, Mallorye Cunningham, told the panel she was

looking for an impartial jury. Cunningham asked each member to state his or her

first thought upon hearing that the case involved a murder charge. Cunningham


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pointed out that there was a death in the case and asked the panel members whether

sympathy for the victim might affect their decision-making.

      During questioning, several panel members stated that they might not be

able to be impartial because of their sympathy for the victim or because of the

serious nature of the charged offense. One panel member, Ms. Solomon, stated

that she got very emotional and did not think she could be impartial because she

had sympathy for everyone and everything, including bugs, and could not kill a fly.

Cunningham asked anyone else who shared Solomon’s opinion to raise his or her

hand. Another panel member asked, “In which aspect?” Cunningham asked

whether anyone else felt like this was not the case for him or her because of the

nature of the charges. One panel member, Mr. Reeder, raised his hand. Again,

Abdool did not raise his hand.

      During a sidebar conference, the state trial court agreed to strike several

more panel members for cause, including Solomon, because they had indicated

they could not be impartial. At the prosecutor’s request, and before resuming voir

dire, the state trial court advised the panel that a jury’s “verdict should not be

influenced by feelings of prejudice, bias or sympathy” but rather must be based on

the jury’s view of the evidence and on the law. The state trial court explained that

while it was normal to have feelings of sadness or sympathy in a murder case, “we

ask you not to base your decision based on those feelings,” and “you may not be


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able to do that for one reason or another, and if you can’t do that, then you should

let us know.”

      Defense counsel Cunningham resumed questioning each panel member

about his or her initial reaction to the murder charge and whether sympathy would

play a role in his or her deliberations. When Cunningham came to Abdool, the

following exchange occurred:

              MS. CUNNINGHAM: What was your opinion when you
      initially heard the charges?
              MR. ABDOOL: Well, the first thing I thought about, what
      was — that crime, that was my first reaction, whatever caused him —
              MS. CUNNINGHAM: Okay. Do you believe that sympathy
      would play a factor for you in this case?
              MR. ABDOOL: As a parent.
              MS. CUNNINGHAM: As what parent?
              MR. ABDOOL: As a parent.
              MS. CUNNINGHAM: Not as a parent but as a juror, would
      you have sympathy, would you be able to set aside sympathy and not
      have that as a factor in your deliberations in this case?
              MR. ABDOOL: No.
              MS. CUNNINGHAM: Is that a no?
              MR. ABDOOL: Yes.
Following voir dire, Cunningham moved to strike ten potential jurors for cause,

some for being unable to set aside sympathy for the victim, including Reeder. The

state trial court agreed to strike eight of those panel members, including Reeder,

and struck thirty more panel members as a result of preemptory strikes from both

Cunningham and the prosecutor. Cunningham did not move to strike Abdool.




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         At the conclusion of the evidence and prior to jury deliberations, the state

trial court again instructed the jury that its verdict could not be based on sympathy

for any party to the case. The written instructions, which were given to the jury,

also included this instruction.

B.       Post-Conviction Motion in State Court

         After his conviction and direct appeal, Fennell filed a post-conviction

motion, pursuant to Florida Rule of Criminal Procedure 3.850, raising an

ineffective assistance claim based on trial counsel’s failure to strike Abdool for

cause.

         After an evidentiary hearing, the state 3.850 court denied relief. After

stating Strickland’s test for ineffective assistance, the state 3.850 court determined

that the proper inquiry was whether trial counsel’s failure to object to, or move to

strike, a particular juror resulted in a biased juror serving on the jury. Based on the

testimony, transcripts, and exhibits, the state 3.850 court found that: (1) Fennell

had not shown by competent and substantial evidence that Abdool had actual bias

against him; and (2) “trial counsel’s performance, viewed from her perspective at

the time of trial, considering all the facts and circumstances, was reasonable under

prevailing professional norms.” The state appellate court affirmed. See Fennell v.

State, 

(Fla. Dist. Ct. App. 2011) (unpublished table decision).

                            II. STANDARD OF REVIEW


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      We review de novo a district court’s denial of a § 2254 habeas petition.

Brooks v. Comm’r, Ala. Dep’t of Corr., 

, 1299 (11th Cir. 2013),

cert. denied, 

(2014). A federal court may not grant habeas relief

on a claim the state court denied on the merits unless the state court decision: (1)

“was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States;” or (2)

“was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d).

      Section 2254(d) “imposes a highly deferential standard for evaluating state-

court rulings and demands that state-court decisions be given the benefit of the

doubt.” Hardy v. Cross, 565 U.S. ___, 

, 491 (2011) (per curiam)

(quotation marks omitted). This standard is “doubly deferential” when a claim of

ineffective assistance of counsel is evaluated under § 2254(d)(1). Knowles v.

Mirzayance, 

, 123, 

, 1420 (2009). “The question is

not whether a federal court believes the state court’s determination under the

Strickland standard was incorrect but whether that determination was

unreasonable—a substantially higher threshold.” 

omitted).

                                III. DISCUSSION

A.    Strickland’s Two-Prong Standard




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      To succeed on an ineffective assistance claim under Strickland, a petitioner

must show that his Sixth Amendment right to counsel was violated because

(1) his attorney’s performance was deficient, and (2) the deficient performance

prejudiced his defense. 

, 104 S. Ct. at 2064. We need

not “address both components of the inquiry if the defendant makes an insufficient

showing on one.” 

104 S. Ct. at 2069.

      Under Strickland, trial counsel’s performance is deficient only if it falls

below an objective standard of reasonableness. 

104 S. Ct. at 2064.

Stated differently, counsel’s error at trial “must be so egregious that no reasonably

competent attorney would have acted similarly.” Harvey v. Warden, 

, 1239 (11th Cir. 2011). “We evaluate juror selection claims as we would any

other Strickland claim,” and our evaluation “start[s] with the strong presumption

that trial counsel’s performance was constitutionally adequate.” 

1243.

Moreover, “[a]n ambiguous or silent record is not sufficient to disprove the strong

and continuing presumption of counsel’s competency.” Williams v. Allen, 

, 794 (11th Cir. 2010) (quotation mark omitted). Under Strickland’s

second prong, prejudice exists if there is a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” 

, 104 S. Ct. at 2068.

B.    Jury Selection Principles


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      Before discussing defense counsel Cunningham’s performance, we review

jury selection principles under federal and Florida law.

      A criminal defendant has a right to an impartial jury, and a prospective juror

who lacks impartiality must be excused for cause. See Ross v. Oklahoma, 

, 85-86, 

, 2277 (1988). To exclude a prospective juror for

cause, a party “must demonstrate that the juror in question exhibited actual bias by

showing either an express admission of bias or facts demonstrating such a close

connection to the present case that bias must be presumed.” United States v.

Chandler, 

, 1102 (11th Cir. 1993) (emphasis added); see also Smith

v. Phillips, 

, 215, 

, 945 (1982). The burden is on the

challenger to show the prospective juror has actual bias, so as to raise the

presumption of partiality. Irvin v. Dowd, 

, 723, 

, 1643

(1961). Moreover, the U.S. Supreme Court has upheld a trial court’s seating of a

juror even where the juror gave conflicting or ambiguous answers during voir dire

about his ability to be impartial. See, e.g., Patton v. Yount, 

, 1038-

40, 

, 2892-93 (1984); Murphy v. Florida, 

, 801-03, 

, 2037-38 (1975).

      Under Florida law, the test at trial “for determining juror competency is

whether the juror can lay aside any bias or prejudice and render his verdict solely

upon the evidence presented and the instructions on the law given to him by the


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court.” Lusk v. State, 

, 1041 (Fla. 1984). The trial court must

grant a party’s motion to strike a prospective juror for cause if there is “any

reasonable doubt” as to the juror’s impartiality. Singer v. State, 

, 23

(Fla. 1959).

      In the post-conviction context, however, Florida has an actual bias

requirement. See Carratelli v. State, 

, 323 (Fla. 2007). “[W]here a

postconviction motion alleges that trial counsel was ineffective for failing to raise

or preserve a cause challenge, the defendant must demonstrate that a juror was

actually biased.” 

(emphasis added). To meet the actual bias standard,

“the defendant must demonstrate that the juror in question was not impartial-i.e.,

that the juror was biased against the defendant, and the evidence of bias must be

plain on the face of the record.” 

Ineffective Assistance Claim

      Considering the record as a whole, we cannot say that the state 3.850 court’s

determination that Fennell’s trial counsel was not ineffective was contrary to, or an

unreasonable application of, Strickland or that the state 3.850 court’s decision was

based on an unreasonable determination of the facts in light of the evidence

presented during the evidentiary hearing.

      Defense counsel Cunningham testified that juror sympathy for the victim

was a critical issue to her trial strategy because it was important to the success of


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Fennell’s self-defense argument. To that end, Cunningham and her co-counsel

planned to strike for cause potential jurors who would allow their sympathy for the

victim to affect their deliberations. And, indeed, a substantial portion of voir dire

was devoted to questioning each prospective juror about the effect sympathy might

have on his or her impartiality.

      The problem for Fennell here is that Cunningham’s exchange with Abdool

during voir dire about sympathy was ambiguous and did not show actual bias. To

be sure, Abdool indicated he had sympathy as a parent. Cunningham then asked a

follow-up, compound question, which asked first whether he would have

sympathy, “[n]ot as a parent, but as a juror,” and Abdool responded, “No.” We

recognize the second part of the question asked whether Abdool would “be able to

set aside sympathy” and the “No” applied to that, too. The problem is the “No” to

the first part of the question makes the second part unnecessary. In any event, the

question and answer are ambiguous, and, thus, this is not a case in which the

prospective juror made a clear declaration that he could not be impartial.

      Moreover, at the evidentiary hearing, both Cunningham and the prosecutor

testified that they believed Abdool’s “No” response indicated he did not have

sympathy as a juror and was capable of being impartial. Cunningham further

testified that she did not believe she had a basis to strike Abdool for cause.




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      Notably, Cunningham’s and the prosecutor’s interpretation of Abdool’s

answer is supported by the other evidence in the record. Neither Cunningham nor

the prosecutor, each with over twenty years of trial experience, noted any

“sympathy” issues with Abdool on their jury selection charts, although they did

make such notes for other prospective jurors. Indeed, in their testimony at the

post-conviction evidentiary hearing, both Cunningham and the prosecutor testified

that they had indicated no concerns on their jury selection charts about potential

sympathy during voir dire of Abdool. Further, Cunningham previously had asked

the entire panel whether anyone felt he or she could not be an impartial juror

because of feelings of sympathy, and only one panel member, Reeder, responded.

Cunningham testified that, based on Abdool’s failure to respond to this question to

the entire panel, she did not believe Abdool had sympathy for the victim. In

addition, the prosecutor asked the venire if they could be fair and impartial and no

member replied that they could not. The prosecutor asked:

            As judges of the facts in this case, I wanted to ask you if anyone
      here would have any, either religious or moral beliefs that you feel
      would prevent you from being able to be a fair and impartial juror and
      decide if a person is either guilty or not guilty of committing a crime;
      does anyone, who has not already said anything to respond to such a
      question?
            Does anyone have anything that comes up in their mind that
      you feel would prevent you from sitting as a fair and impartial juror[?]




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No one in the venire, including Abdool, responded to the question. Finally, the trial

judge, who was active throughout voir dire, never expressed any concern about

Abdool.

      As the U.S. Supreme Court has explained, the question of whether a

prospective juror is biased is “largely one of demeanor,” and a prospective juror’s

demeanor during voir dire may make clear what seems ambiguous on the face of a

cold transcript:

      Demeanor plays a fundamental role not only in determining juror
      credibility, but also in simply understanding what a potential juror is
      saying. Any complicated voir dire calls upon lay persons to think and
      express themselves in unfamiliar terms, as a reading of any transcript
      of such a proceeding will reveal. Demeanor, inflection, the flow of
      the questions and answers can make confused and conflicting
      utterances comprehensible.

& 

& n.14. Here, none of the

people in the best position to evaluate Abdool’s response appear to have

understood him to mean that he could not be impartial.

      In contrast, Fennell did not present any evidence, other than the voir dire

transcript, to show that Abdool was actually biased against him. Instead, Fennell

points to the state 3.850 court’s order granting him an evidentiary hearing and

claims that the state 3.850 court found in that order that Abdool was biased and

should have been removed from the panel. The language Fennell points to,

however, was part of the state 3.850 court’s threshold analysis to determine


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whether the Fennell’s factual allegations were “conclusively rebutted by the

record” or did not “demonstrate a deficiency on the part of counsel which [was]

detrimental to” Fennell and thus showed that Fennell was not entitled to relief.

LeCroy v. Dugger, 

, 239 (Fla. 1998) (quoting Kennedy v. State, 

, 913 (Fla. 1989) (explaining the standard Florida courts use to

determine whether to grant a post-conviction petitioner an evidentiary hearing on

an ineffective assistance claim). Furthermore, Fennell made this argument at the

outset of the 3.850 hearing, and the state 3.850 court made it clear that it had not

yet made any factual findings on the merits of Fennell’s claims. Thus, the state

3.850 court’s order granting Fennell an evidentiary hearing did not establish that

Abdool was actually biased.

      Given that a prospective juror’s ambiguous statements about his ability to be

impartial do not give rise to a presumption of actual bias, the state 3.850 court’s

determination that Fennell failed to show actual bias was reasonable. Furthermore,

Abdool’s ambiguous response, alone, cannot rebut the presumption that his

defense counsel acted competently. See 

. Under the

totality of the circumstances, a reasonable attorney in Cunningham’s shoes could

have concluded that there was no need to move to strike Abdool for cause.

      Furthermore, for the same reason that Cunningham’s failure to object to

Abdool was not deficient performance, Fennell cannot show that Abdool’s


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presence on the jury prejudiced him. Fennell did not show that Abdool was

actually biased against him. Both during voir dire and immediately prior to

deliberations the state trial court instructed the jury that its verdict should be based

on the evidence and not on feelings of sympathy. In addition, Abdool, along with

the other empaneled jurors, took an oath to be fair and impartial. Jurors are

presumed to follow the law as instructed by the trial court and to comply with their

oaths. Hallford v. Culliver, 

, 1204 (11th Cir. 2006); United States v.

Khoury, 

, 955 (11th Cir.), modified on other grounds, 

(11th Cir. 1990). Without any evidence that Abdool was actually biased, we must

presume that he followed the trial judge’s instructions, set aside his feelings of

sympathy, and was fair and impartial during deliberations.

      In sum, Fennell has not shown that the state 3.850 court’s decision rejecting

his ineffective assistance claim was contrary to, or an unreasonable application of,

Strickland or other clearly established federal law or that the decision was based on

an unreasonable determination of the facts. Accordingly, we affirm the district

court’s denial of Fennell’s § 2254 petition.

      AFFIRMED.




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