GEORGE C. HANKS, JR., District Judge.
Petitioner Donnie Earl Ducksworth filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) raising two claims of ineffective assistance of counsel. Respondent filed a Motion for Summary Judgment (Dkt. 8), to which Ducksworth has responded (Dkt. 9). Respondent also filed the relevant state court records (Dkt. 7). After reviewing all of the parties' filings, the record, and the applicable law, the Court concludes that the writ of habeas corpus should be
On December 13, 2012, Ducksworth was charged by indictment with two counts of aggravated robbery. He was tried by jury before Judge W. Edwin Denman in the 412th District Court of Brazoria County, Texas, Cause No. 69305. Faye Gordon, appointed counsel, represented Ducksworth at trial. On June 26, 2013, the jury found Ducksworth guilty on both counts. Ducksworth pleaded true to the habitual offender enhancement allegations, and on June 27, 2013, the jury sentenced him to sixty years imprisonment on each count, to be served concurrently.
The First Court of Appeals of Texas affirmed Ducksworth's conviction on June 10, 2014, in an unpublished opinion. Ducksworth v. State, 01-13-00616-CR, 2014 WL 2582895 (Tex. App.- Hou. [1st Dist.] 2014, no pet.). Ducksworth did not seek discretionary review.
On November 10, 2014, Ducksworth filed a petition for state habeas relief. The trial court held an evidentiary hearing on January 23, 2015 (SHCR-02, at 178-269 ("Evidentiary Hearing")). On April 2, 2015, the court entered Findings of Fact and Conclusions of Law (id. at 292-307 ("FFCL")). The Texas Court of Criminal Appeals denied relief without written order on January 20, 2016 (Dkt. 7-17).
Ducksworth timely filed his habeas corpus petition in this Court on June 3, 2016.
On direct appeal, the First Court of Appeals summarized the relevant facts as follows:
Ducksworth, 2014 WL 2582895, at *1.
Faye Gordon, appointed counsel for Ducksworth, did not request a jury instruction on robbery or any other lesser included offense of aggravated robbery. She initially requested, but later withdrew, an instruction on theft (FFCL, at 296-97 & 304-05, Findings No. 29, 30, 33 & 66). When the case was submitted to the jury, the jury's only options for verdict were acquittal or conviction for aggravated robbery.
After his conviction and sentence were affirmed on direct appeal, Ducksworth filed a state habeas petition claiming that Gordon had rendered constitutionally ineffective assistance of counsel at his trial when she failed to request a robbery instruction. He also claimed that she was ineffective because she used two of her peremptory strikes on jurors already challenged for cause, thus wasting the strikes, and allowed a biased juror to be seated without challenging him for cause or peremptorily. Gordon filed an affidavit and testified at the state habeas court's evidentiary hearing.
The state habeas court entered Findings of Fact and Conclusions of Law denying habeas relief. See FFCL, at 306, Conclusion No. 1 ("Trial counsel was not ineffective in failing to use a peremptory strike to remove Venireman 10, Jason Mahin"); id. Conclusion No. 3 ("Trial counsel was not ineffective for failing to request a lesser included jury charge for Robbery").
Ducksworth's federal habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320 (1997). The intent of the AEDPA is to avoid federal habeas "retrials" and "ensure that state-court convictions are given effect to the extent possible under [the] law." Bell v. Cone, 535 U.S. 685, 693 (2002).
The provisions of Section 2254(d) create a highly deferential standard, thereby demanding that state court decisions be given the benefit of the doubt. Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). Review of a state court decision is limited to the record that was before the state court that adjudicated the claim on its merits. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). A federal court cannot grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication:
28 U.S.C. § 2254(d). See Harrington v. Richter, 562 U.S. 86, 100 (2011); Cobb v. Thaler, 682 F.3d 364, 372-73 (5th Cir. 2012). Questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1); questions of fact are reviewed under § 2254(d)(2). Martinez v. Caldwell, 644 F.3d 238, 241-42 (5th Cir. 2011).
A state court decision is contrary to clearly established law if the decision "applies a rule that contradicts the governing law set forth" by the Supreme Court or if the state court "confronts a set of facts that are materially indistinguishable" from the Supreme Court precedent and decides the case differently. Early v. Packard, 537 U.S. 3, 8 (2002). A state court unreasonably applies federal law if the court "identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 413 (2000). To be an unreasonable application of federal law, the state court decision must be objectively unreasonable and more than simply incorrect or erroneous. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Cobb, 682 F.3d at 373.
The AEDPA grants great deference to state determinations of factual issues. In reviewing a federal habeas petition, the court must presume that a factual determination made by the state court is correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
A court may grant summary judgment when the evidence shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-32 (1986). The moving party has the responsibility of informing the court of the basis for its summary judgment motion and "identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits" that demonstrate that there is no genuine issue of material fact. Id. at 323 (internal quotation marks omitted). In response, the nonmovant must go beyond the pleadings and by affidavits, depositions, answers to interrogatories, or admissions on file show that there is a genuine issue of material fact requiring resolution through a trial. Id. at 324. If the nonmoving party is unable to meet this burden, the motion for summary judgment will be granted.
Rule 56 of the Federal Rules of Civil Procedure "applies with equal force in the context of habeas corpus cases." Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). The rule, however, only applies to the extent that it does not conflict with the habeas rules. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), overruled on other grounds, Tennard v. Dretke, 524 U.S. 274 (2004). Generally, in ruling on a motion for summary judgment, the court resolves any doubts and draws any inferences in favor of the nonmoving party, Hunt v. Cromartie, 526 U.S. 541, 552 (1999), but 28 U.S.C. § 2254(e)(1) commands that factual findings of the state court are to be presumed correct. Thus, 28 U.S.C. § 2254(e)(1) overrides the general summary judgment rule. Smith, 311 F.3d at 668. The petitioner is required to rebut the presumption of correctness by clear and convincing evidence. Id.; 28 U.S.C. § 2254(e)(1).
Under Strickland v. Washington, 466 U.S. 668 (1984), a criminal defendant claiming ineffective assistance of counsel must show that defense counsel rendered deficient performance and that the defendant was prejudiced.
Rhoades v. Davis, 852 F.3d 422, 431-32 (5th Cir. 2017) (quoting Strickland, 466 U.S. at 687-89, 694). Strickland defines a "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. This requires a "substantial, not just conceivable, likelihood of a different result." Pinholster, 563 U.S. at 189 (internal citation and quotation marks omitted). The petitioner's burden to show a "reasonable probability" of changed outcome is less than a preponderance:
Kyles v. Whitley, 514 U.S. 419, 434 (1995).
Review of counsel's performance is deferential, and counsel enjoy a strong presumption that their conduct is within the "wide range" of the bounds of professional norms. Strickland, 466 U.S. at 689. A petitioner's burden is to show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Any "strategic decisions" made by trial counsel "must be given a strong degree of deference." Rhoades, 852 F.3d at 432.
On habeas review, when a state court has adjudicated a claim of ineffective assistance of counsel on the merits, the petitioner bears an especially heavy burden. The question is not whether the state court's application of Strickland was incorrect, but rather whether it was unreasonable.
Richter, 562 U.S. at 105 (internal citations and quotation marks omitted). See Trottie v. Stephens, 720 F.3d 231, 240-41 (5th Cir. 2013) ("`even a strong case for relief does not mean the state court's contrary conclusion was unreasonable'" (quoting Richter, 562 U.S. at 102)).
Ducksworth claims that Gordon should have requested a jury instruction on robbery, and that her failure to do so rendered her constitutionally ineffective. He presented this claim to the state habeas court, which denied his claim on the merits.
Ducksworth was convicted of two counts of aggravated robbery. A person commits "aggravated robbery" if "he commits robbery as defined in Section 29.02,
Under Texas law, a knife is not a deadly weapon per se. Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986). Moreover, "[m]ere possession" of a deadly weapon is not equated with "using" or "exhibiting" the weapon, as required to prove aggravated robbery. See McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000) (citing Patterson v. State, 769 S.W.2d 938, 941 (Tex. Crim. App. 1989)). Rather, the prosecution must prove beyond a reasonable doubt that "the knife alleged is capable of causing serious bodily injury or death in the manner of its use or intended use." Brown, 716 S.W.2d at 946 (emphasis deleted). See Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008) (citing TEX. PENAL CODE § 1.07(a)(17)). Several factors are relevant, including the physical distance between the defendant and victim, and more specifically whether the victim was within the defendant's reach;
Ducksworth argues that Gordon should have requested a jury instruction on the lesser included offense of robbery. If "some evidence from any source" raised a fact issue on whether the defendant was guilty only of a lesser included offense, the defendant is entitled to the instruction. See Cavazos v. State, 382 S.W.3d 377, 383 (Tex. Crim. App. 2012); Stadt v. State, 182 S.W.3d 360, 363 (Tex. Crim. App. 2005). The evidence relevant to the instruction must be sufficient to allow a jury to "rationally conclude" that the defendant was guilty only of the lesser offense. See Wesbrook v. State, 29 S.W.3d 103, 113-14 (Tex. Crim. App. 2000). Even if the evidence supporting conviction on the lesser offense is "weak, impeached, or contradicted," the defendant is entitled to the instruction. Cavazos, 382 S.W.3d at 383.
Sweed, 351 S.W.3d at 68 (Tex. Crim. App. 2011) (internal citations and quotation marks omitted).
In this case, the state habeas court made multiple findings relevant to whether Ducksworth used or exhibited a knife as a deadly weapon to facilitate the transaction:
(FFCL, at 294-95, Findings No. 14-22). According to the state habeas court's findings, therefore, Ducksworth was never within physical reach of the Veras (Findings No. 15 & 19) and never pulled his knife all the way out or tried to attack them (Findings No. 14 & 18), but did show the knife and make a verbal threat (Findings No. 14, 15, 17 & 21). These factors are relevant under Texas law to whether Ducksworth used or exhibited his knife as a deadly weapon. See McCain, 22 S.W.3d at 503; Tisdale, 686 S.W.2d at 115.
Under the circumstances of this case, because "some evidence in the record" would have permitted the jury to find Ducksworth guilty only of robbery, Ducksworth was entitled to the robbery instruction. See Cavazos, 382 S.W.3d at 383. Even if the evidence at trial was sufficient to sustain a conviction for aggravated robbery, the trial court would have erred by refusing the robbery instruction if Gordon had requested it.
(id. at 242-43). Gordon conceded that she could have argued that "even if [the jury] believed every word the State's witnesses said that at least it demonstrated Robbery instead of Aggravated Robbery," because "there was reasonable doubt as to whether he used or exhibited a deadly weapon during commission of the offense" (id. at 243). See FFCL at 297, Finding No. 36 ("Ms. Gordon felt the evidence was strong that he did not exhibit a deadly weapon"). Under Texas law, Ducksworth was entitled to the robbery instruction.
Respondent argues that, despite Gordon's failure to request the robbery instruction, her performance was not deficient under Strickland. Strickland standards are highly deferential, especially when counsel makes a strategic decision. A "strategic" decision by counsel is one that "is expected, on the basis of sound legal reasoning, to yield some benefit or avoid some harm to the defense." St. Aubin v. Quarterman, 470 F.3d 1096, 1103 (5th Cir. 2006) (internal quotation marks and citations omitted). "`Strategic choices made
Respondent argues that Gordon's strategy at trial was to base her defense on theft, and that requesting a robbery instruction would have been inconsistent with the evidence of theft. Before trial, Ducksworth had instructed Gordon to pursue theft rather than robbery. See Evidentiary Hearing, at 220 ("[Ducksworth] said this was not a Robbery case and that we were to pursue theft.").
Based on the evidence in the state court record, there were strong strategic advantages, and no identified disadvantages, to requesting a robbery instruction. See St. Aubin, 470 F.3d at 1103.
To the extent Respondent relies upon Ducksworth's instructions to justify Gordon's performance, the argument fails. In most cases, an attorney who acts on a client's instructions does not provide ineffective assistance. See Wood v. Quarterman, 491 F.3d 196, 203 ("Neither the Supreme Court nor this court has ever held that a lawyer provides ineffective assistance by complying with the client's clear and unambiguous instructions not to present evidence"). However, cases applying this rule rely on the client making an
In sum, no sound strategy justified Gordon's failure to request the robbery instruction. Gordon did not make an adequate investigation in the facts and law, and did not rely on an informed decision of her client. Rather, she continued to argue a stale theory of theft that was unavailable to the jury. In similar cases, the courts have found counsel constitutionally deficient. See Richards, 566 F.3d at 569-70 (finding deficient performance because counsel had not requested a lesser included instruction raised by the evidence and apparently "misunderstood the law," thus falling below an objective standard of reasonableness); Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992) (finding deficient performance because "[c]ounsel should have recognized that appellant's testimony was sufficient to raise the defense," because "appellant had nothing to lose by requesting a defensive instruction," and because "[u]nder the facts of this case, it would have been error for the trial court to refuse such an instruction, had one been requested"); Waddell v. State, 918 S.W.2d 91, 94-95 (Tex. App.-Austin 1996, no pet.) (counsel rendered deficient performance because counsel failed to request an instruction on the lesser included offense of trespass and thus "the jury was not given the opportunity to evaluate the evidence as it relates to the lesser offense").
Gordon's performance was deficient and "fell below an objective standard of reasonableness as measured by prevailing professional norms." See Rhoades, 852 F.3d at 431-32 (internal citation and quotation marks omitted).
To demonstrate prejudice under Strickland, a defendant must show that counsel's deficient performance was "so serious as to deprive him of a fair trial, a trial whose result is reliable." Rhoades, 852 F.3d at 432 (internal citation and quotation marks omitted). This requires the showing of a "reasonable probability" that but for counsel's deficiencies, the result of the proceeding would have been different. Id. "`A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Escamilla, 749 F.3d at 388 (quoting Strickland, 466 U.S. at 694). The reasonable probability standard does not require Ducksworth to show by a preponderance of the evidence that the verdict would have been different if he had received the robbery instruction but rather that, given Gordon's error, he did not receive a "fair trial, understood as a trial resulting in verdict worthy of confidence." Kyles, 514 U.S. at 434. See Dominguez Benitez, 542 U.S. at 83 n.9; Nix, 475 U.S. at 175 Strickland, 466 U.S. at 693-94; White, 610 F.3d at 912.
In this case, Ducksworth was prejudiced by the significant difference in parole eligibility between the two offenses. As the state habeas court found, Ducksworth is required to serve thirty years for aggravated robbery before he is eligible for parole but, if he had been convicted of robbery, would have been required to serve only seven-and-a-half years before parole eligibility. See FFCL, at 304, Finding No. 66 (Petitioner "
In addition, Ducksworth was prejudiced because, although the evidence raised the issue of robbery, the only options available to his jury were aggravated robbery or acquittal. In Beck v. Alabama, the Supreme Court explained that, although a lesser included offense instruction had developed as an aid to the prosecution "in cases in which the proof failed to establish some element of the crime charged," the instruction also benefits the defendant "because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal." Beck v. Alabama, 447 U.S. 625, 633 (1980). In fact, "providing the jury with the `third option' of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard." Id. at 634.
Id. (internal quotation marks and citation omitted) (emphasis original). When instructions on a lesser included offense are not given, there is a "possibility that a jury, believing the defendant to have committed some crime but given only the option to convict him of a greater offense, may have chosen to find him guilty of that greater offense, rather than to acquit him altogether, even though it had a reasonable doubt he really committed the greater offense." Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995).
A robbery instruction would have given the Ducksworth's jury a vehicle for reasonable doubt as to whether Ducksworth used or exhibited a deadly weapon to facilitate the offense. The sentencing difference was significant. Under Strickland, there is a "reasonable probability" that, if Gordon had requested the robbery instruction, the result of the trial would have been different. See Rhoades, 852 F.3d at 432.
Because Ducksworth was prejudiced by Gordon's deficient performance, he has shown that Gordon was constitutionally ineffective.
The remaining question before this Court is whether the state court's determination was "contrary to, or involved an unreasonable application of" Strickland, 28 U.S.C. § 2254(d)(1), or "resulted in a decision that 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)(2). The state habeas court issued one Conclusion of Law relevant to Ducksworth's claim that Gordon rendered ineffective assistance regarding jury instructions: "Trial counsel was not ineffective for failing to request a lesser included jury charge for Robbery" (FFCL, at 306, Conclusion No. 3). The court did not explicitly address the two Strickland prongs, therefore implicitly determining that (1) Gordon's performance was not deficient, i.e., did not fall below an objective standard of reasonableness and (2) Ducksworth was not prejudiced by her failure to request a robbery instruction.
Habeas review is highly deferential, and doubly deferential when reviewing an ineffective assistance claim. Pinholster, 563 U.S. at 190 ("We take a `highly deferential' look at counsel's performance, through the `deferential lens of § 2254(d)'") (reversing lower courts' grant of habeas relief) (quoting Strickland, 466 U.S. at 689; Knowles v. Mirzayance, 556 U.S. 111, 1418 n. 2 (2009)); Richter, 562 U.S. at 105.
The state habeas court implicitly concluded that Gordon's performance was not deficient, and thus did not fall below an objective standard of reasonableness, when she failed to request a jury instruction on robbery. The facts of the case raised the robbery issue, and if Gordon had requested the instruction the trial court would have erred by denying it. See Nash, 115 S.W.3d at 139; Jones, 921 S.W.2d at 364-65; Chavez, 740 S.W.2d at 22-23. Although Respondent argues that Gordon's decisions were justified by trial strategy, the stated strategy to pursue a theory of theft is illogical because the theft instruction had been withdrawn. The mere invocation of strategy cannot justify deference to counsel's actions. See Anderson, 338 F.3d at 392 (Strickland does not require deference to decisions that are "uninformed by an adequate investigation into the controlling facts and law") (internal quotation marks and alterations omitted). Moreover, Gordon failed even to advise her client about the strategic advantages of the robbery instruction. In short,
Given these facts, the state habeas court's determination that Gordon's performance was not deficient was an unreasonable application of Strickland to the facts of the case. See 28 U.S.C. § 2254(d)(1). Put differently, there is no reasonable argument supporting the state habeas court's determination that Gordon's performance satisfied Strickland's deferential standard. See Richter, 562 U.S. at 105. The determination that Gordon's performance was not deficient was both incorrect and objectively unreasonable. See Lockyer, 538 U.S. at 75; Cobb, 682 F.3d at 373; Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001) ("Even though we cannot reverse a decision merely because we would reach a different outcome, we must reverse when we conclude that the state court decision applies the correct legal rule to a given set of facts in a manner that is so patently incorrect as to be `unreasonable'").
The state habeas court also implicitly determined that Ducksworth was not prejudiced by Gordon's failure to request a robbery instruction.
First, the state habeas court's determination was "contrary to" Strickland, warranting relief under Section 2254(d)(1), because it did not apply the Strickland standard for the prejudice inquiry. Strickland requires a court to consider whether the petitioner has shown a "
Second, the state habeas court's determination that the "outcome would [not] have been different" is severely flawed because it rests on unreasonable determinations of the "facts in light of the evidence presented in the state court proceedings." See 28 U.S.C. § 2254(d)(2). For example, when determining that Ducksworth was not prejudiced, the habeas court stated that a robbery instruction "would have lessened [Ducksworth's] available defenses under the charge submitted" (FFCL, at 304-05, Finding No. 66). This factual premise is inaccurate given that Gordon could have continued to argue that her client had consent to take the pipe, and to urge full acquittal of both robbery and aggravated robbery, if the robbery instruction had been submitted. The state habeas court did not explain any basis for its assertion that Ducksworth's defenses would have been "lessened." In fact, in the same finding, the habeas court summarized the defenses as follows:
(Id. at 304, Finding No. 66). None of these defenses would have been "lessened" or unavailable if the jury had been instructed on robbery.
In another finding, the court determined that Ducksworth had not been prejudiced because he had rejected a plea bargain. In particular, the habeas court posited that Ducksworth would have rejected a robbery instruction if properly informed by Gordon because, before trial, he had rejected a plea bargain of fourteen years.
Third, the state habeas court unreasonably applied Strickland to the facts, and unreasonably determined the facts in light of the evidence, when it relied on the jury's timeline of deliberations to find that Ducksworth was not prejudiced. See 28 U.S.C. §§ 2254(d)(1) & 2254(d)(2). The court determined as follows:
(FFCL, at 305, Finding No. 67) (emphasis added). In making this determination, the court unreasonably drew an inference that, because the jury verdict was delivered twenty minutes after the jury viewed the knife, Ducksworth had not shown prejudice under Strickland. To the extent the court determined that viewing the knife convinced the jury to convict Ducksworth quickly, the amount of time between the jury's knife-viewing and verdict is completely immaterial to the Strickland prejudice inquiry, which instead focuses the inquiry on whether the
The state habeas court's determination that Ducksworth was not prejudiced relied on an incorrect legal standard for prejudice that was contrary to Strickland. It further unreasonably applied Strickland to the facts in the record. Habeas relief therefore is warranted under Section 2254(d)(1) and Section 2254(d)(2).
Courts should dispose of a meritorious habeas petition "as law and justice require." Hilton v. Braunskill, 481 U.S. 770, 775 (1987); see 28 U.S.C. § 2243. The Court will grant a conditional writ of habeas corpus. Respondent must release Ducksworth from custody unless the State initiates retrial proceedings within 180 days from the date of final judgment in this Court.
Ducksworth also argues that Gordon was constitutionally ineffective for failure to strike Juror Jason Mahin from the jury. At voir dire, Mahin made three statements that Ducksworth alleges establish bias against him: that he had been robbed eight years prior; that he believed criminals should be "punished" because "rehab" was not working, and that a defendant who had nothing to hide would take the stand to tell his side of the story (Petition, at 10-11 (citing trial record)).
Gordon did not strike Mahin for cause or peremptorily. When exercising her strikes, she used two peremptory strikes on jurors she already had successfully challenged for cause, thus "wasting" two strikes. Ducksworth urges that Gordon should have used one of those peremptory strikes to remove Mahin.
Ducksworth correctly states that Gordon used two peremptory strikes on jurors who already had been removed. However, this in itself does not suffice to show deficient performance or prejudice under Strickland. Rather, Ducksworth would have to show that Gordon was deficient for failure to remove Mahin. In this case, the record as a whole supports a finding that Gordon acted within "the wide range of reasonable professional assistance" when seating Mahin as a juror. See Rhoades, 852 F.3d at 431-32 (reciting Strickland standard). Upon further voir dire, Mahin expanded on his answers. He stated that his past experience as a robbery victim would not cause him to "favor one side or the other," that he could "follow the law as far as the range of punishment," and that he would not require the defendant to testify because "the law is the law" (Petition, at 10-11 (citing trial record); FFCL, at 298-99, Finding 39 (citing trial record)). At the evidentiary hearing, Gordon testified that Mahin was not an objectionable juror given all his answers and her observations during voir dire (Evidentiary Hearing, at 228-30). She also testified that she felt she did not need to strike Gordon because he was willing to voice his opinion, that it was "not unusual" to hear persons untrained in the law state that they wanted to hear a defendant testify or wanted criminals to receive more than a "slap on the wrist," and that she seated the best jury should could given the panel that was available to her (id. at 228-29).
Ducksworth has not shown that Mahin was sufficiently biased that Gordon's performance "fell below an objective standard of reasonableness as measured by prevailing professional norms" when she failed to remove him. See Romero v. Lynaugh, 884 F.2d 871, 878 (5th Cir. 1989) (finding that counsel's handling of jury selection did not fall "outside the range of acceptable judgment" and noting that an attorney may rely on experience, intuition, and empathetic abilities that are not fully reflected in a written record). He therefore has not shown that her performance was constitutionally deficient. See Rhoades, 852 F.3d at 431-32.
As for prejudice, Ducksworth argues that a prejudice showing is not required because the presence of a "biased juror" constitutes structural error, relying on Virgil v. Dretke, 446 F.3d 598, 613-14 (5th Cir. 2006). This argument again rests on the premise that Mahin was biased. In Virgil, the biased jurors gave unchallenged statements during voir dire that they were incapable of being fair and impartial. Virgil, 446 F.3d at 609-10. By contrast, the voir dire at Ducksworth's trial shows that Mahin was rehabilitated upon further questioning. Ducksworth has not shown that Mahin was a "biased" juror as in Virgil, and has not shown that the structural error standard applies.
Finally, under Section 2254, this Court's review on habeas is doubly deferential. The state habeas court's conclusion that Gordon was not constitutionally ineffective for failing to remove Mahin was not contrary to, or an unreasonable application of, clearly established Supreme Court law, nor was it an unreasonable determination of the facts in light of the state court record. See 28 U.S.C. § 2254(d)(1), (d)(2). Habeas relief is denied.
Based on the foregoing, the Court
