Michael E. WOLFE, Petitioner-Appellee, v. Anthony J. BRIGANO, Warden, Respondent-Appellant, 232 F.3d 499

BOYCE F. MARTIN, Jr., C.J., delivered the opinion of the court. WELLFORD (pp. 503-04), and BATCHELDER (pp. 504-05), JJ., delivered separate concurring opinions. OPINION BOYCE F. MARTIN, Jr., Chief Judge. Michael E. Wolfe is currently serving a life sentence for murder. Wolfe filed a federal habeas petition pursuant to 28 U.S.C. § 2254 arguing, in part, that his Sixth Amendment right to a trial by an impartial jury was violated by the presence of four biased and partial jurors. The district court granted Wolfe’s petition. Respondent appeals. For the reasons stated below, we AFFIRM. I.

Wolfe was tried in Gallia County, a rural county in Southern Ohio, before a jury of twelve persons. Under Ohio law, a defendant in a non-capital felony trial is entitled to four peremptory challenges, as well as an unlimited number of for-cause challenges. See Ohio R.Crim. P. 24. During voir dire, Wolfe challenged six potential jurors for cause. The district court excused one and overruled the rest of Wolfe’s for-cause challenges.

Wolfe removed one of the other five challenged potential jurors with a peremptory challenge and exhausted his remaining per-emptories on three potential jurors whom neither side had challenged. Wolfe alleges that his Sixth Amendment right to an impartial trial was violated when the trial court forced him to try his case before a jury containing four biased jurors whom the court erroneously refused to remove for cause. These four jurors all expressed doubts as to whether they could be fair and impartial. Two noted close and longstanding relationships with the victim’s parents.

The trial judge overruled Wolfe’s for-cause challenges to these jurors without providing any supporting reason. A third juror admitted listening to and reading news accounts of the case and doubted her ability to put aside such reports and decide the case solely on the evidence presented at trial. In denying Wolfe’s challenge, the trial court found only that the juror indicated that she could make a fair and impartial decision. The fourth juror doubted whether he would require the prosecution to prove its case beyond a reasonable doubt.

The trial court denied Wolfe’s challenge to this juror, finding that the juror had said only that a decision to acquit would be difficult, not impossible. II. We review a district court’s grant of a writ of habeas corpus de novo. See Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997). Any findings of fact made by the district court are normally reviewed only for clear error, see Greene v.

Brigano, 123 F.3d 917, 920 (6th Cir.1997), but when the district court’s decision in a habeas case is based on a transcript from the petitioner’s state court trial, and the district court thus makes “no credibility determination or other apparent finding of fact,” the district court’s factual findings are reviewed de novo. Moore v. Carlton, 74 F.3d 689, 691 (6th Cir.1996). The United States Supreme Court’s recent decision in Williams v.

Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), clarified the requirements for a federal court to grant a state prisoner’s petition for a writ of habeas corpus under 28 U.S.C. § 2254(d)(1).

Under § 2254(d)(1), the writ may issue if the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The “contrary to” provision allows a federal habeas court to grant the writ if the state court arrived at a conclusion “opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at-, 120 S.Ct. at 1523.

Under the “unreasonable applications” clause, a federal habeas court may issue the writ “if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. Under § 2254(e)(1), the state court’s factual determinations are entitled to a presumption of correctness, rebuttable by clear and convincing evidence.

Even under this deferential standard of review, however, we are compelled to find that the state court’s decision was contrary to clearly established constitutional law and its determination of the absence of juror bias was clearly erroneous. III. The Sixth and Fourteenth Amendments to the Constitution guarantee a criminal defendant the right to an impartial jury. See Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Any allegations of bias in the jury, however, must be preserved at trial, or they will be lost. See Ross v.

Oklahoma, 487 U.S. 81, 85, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (conditioning a defendant’s right to challenge the failure to remove a juror for cause on whether the juror actually sat on the jury, and whether petitioner properly preserved his claim). The Ohio Court of Appeals concluded that Wolfe did not properly preserve his right to challenge the presence of four biased jurors on his jury because he failed to remove the jurors with his peremptory challenges. That court, however, did not have the guidance of U.S. v.

Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), where the Supreme Court rejected the argument that federal law requires a defendant to use a peremptory challenge to cure a judge’s erroneous refusal to dismiss a juror for cause. In Martinez-Salazar, the Supreme Court stated that when a defendant objects to a trial court’s denial of his for-cause challenge, the defendant may choose to either remove the challenged juror peremptorily and forgo a later Sixth Amendment challenge, or allow the juror to sit, preserving the Sixth Amendment claim for appeal. See id. at-, 120 S.Ct. at 781.

Wolfe challenged six jurors for cause. The trial court granted one of his challenges. He removed a second juror with a peremptory challenge. The other four challenged jurors sat on his jury. After the jury was empaneled, he filed a motion to dismiss on the ground that the jury was biased, a motion he renewed at the conclusion of the trial. We are convinced that Wolfe properly preserved his Sixth Amendment claim, and we now address the merits of his argument that the four challenged jurors were biased and improperly allowed to sit on his jury. IV.

The Ohio Court of Appeals concluded that the trial judge did not abuse his discretion in refusing to excuse the four jurors Wolfe challenged for cause. We are aware that our review is deferential, respecting the trial judge’s proximity to the venire and the determinations of credibility and demeanor that voir dire involves. See Wainwright v. Witt, 469 U.S. 412, 428, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Nonetheless, we hold that the trial court unreasonably denied Wolfe’s for-cause challenges and thus affirm the district court’s issuance of the writ of habeas corpus.

In determining whether the trial court erred in denying Wolfe’s for-cause challenges, this Court must ask: “did a juror swear that he could set aside any opinion that he might hold and decide the case on the evidence, and should the juror’s protestation of impartiality have been believed?” Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). Here, two jurors had continuous contact with the victim’s family. The first juror had an ongoing business relationship with the victim’s parents.

He had spoken with the victim’s parents and “listened to them” and did not think he could be a fair and impartial juror. The second juror said that she could be fair and impartial, but that she and her husband were “close friends” of the victim’s parents, whom they visited quite a bit. Moreover, her husband had spoken with the victim’s parents about what they thought had happened when their son was killed, information that he related to her at some length. She conceded to defense counsel that it was “hard to say” whether she would be influenced by her relationship with the victim’s parents.

Neither of these jurors stated unequivocally that they could set aside their relationships with the victim’s parents and decide the case fairly. Although “[t]here is no constitutional prohibition in jurors simply knowing the parties involved or having knowledge of the case,” McQueen v. Scroggy, 99 F.3d 1302, 1320 (6th Cir.1996), the relationships here were close and ongoing. The first juror admitted that he might not be a fair and impartial juror.

We find the second juror’s assessment that she could be fair and impartial untenable, in light of both the close relationship between the juror and the victim’s family, and the fact that she knew the family’s theory of the victim’s death. A court’s refusal to excuse a juror will not be upheld “simply because the court ultimately elicits from the prospective juror a promise that he will be fair and impartial .... ” Kirk v. Raymark Indus., Inc., 61 F.3d 147, 156 (3rd Cir.1995).

The third juror that Wolfe challenged had read and heard news accounts of the crime, and expressed doubt as to whether she could put aside those reports and decide the case solely on the evidence presented at trial. The fourth challenged juror doubted he would require the prosecution to prove its case beyond a reasonable doubt. In the absence of an affirmative and believable statement that these jurors could set aside their opinions and decide the case on the evidence and in accordance with the law, the failure to dismiss them was unreasonable. See Patton, 467 U.S. at 1036,104 S.Ct. 2885.

From the record before us, it appears that the trial judge based his findings of impartiality exclusively upon each juror’s tentative statements that they would try to decide this case on the evidence presented at trial. Such statements, without more, are insufficient. See Goins v. McKeen, 605 F.2d 947, 953 (6th Cir.1979). The Sixth Amendment guarantees Wolfe the right to a jury that will hear his case impartially, not one that tentatively promises to try. Failure to remove biased jurors taints the entire trial, and therefore, Wolfe’s conviction must be overturned. V.

For the above reasons, we AFFIRM the district court’s decision granting the writ of habeas corpus.