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Bailey v. Foster

United States District Court, E.D. Wisconsin

June 29, 2018

KEITH BAILEY, Petitioner,
v.
BRIAN FOSTER, Respondent.

          REPORT AND RECOMMENDATION

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         Background

         Keith Bailey, along with his friend Eddie “Memphis” Walker, was charged with raping two woman in separate incidents in February 2009 and February 2010. Following a jury trial, Bailey was convicted on November 9, 2011, of two counts of first degree sexual assault. After unsuccessfully appealing his conviction he filed a petition for a writ of habeas corpus in this court. He presents three grounds for relief. The first two grounds are related: he argues that two jurors were biased, and he argues that his trial counsel was ineffective for not asking one of them if she could be fair and impartial despite having been a victim of a sexual assault. (ECF No. 1 at 6-8.) Bailey further argues that he was deprived of a fair trial as a result of the prosecutor's closing argument. (ECF No. 1 at 8.)

         Standard of Review

         A federal court may consider habeas relief for a petitioner in state custody “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §2254(a). Following the passage of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court generally may grant habeas relief only if the state court decision was “either (1) ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Miller v. Smith, 765 F.3d 754, 759-60 (7th Cir. 2014) (quoting 28 U.S.C. § 2254(d)(1), (2)).

         Analysis

         Juror Bias

         During voir dire, juror L.W. reported that she was sexually assaulted ten years earlier by an Air Force colleague after she took a sleeping pill. (ECF No. 12-10 at 46-47.) The prosecutor asked her a few details about the incident-whether she attempted to run away or fight; whether she suffered visible injuries as a result of the assault; and whether photographs were taken. L.W. also stated during voir dire that she believed she was treated unfairly by the police in one of her two drunk driving arrests. (ECF No.12-10 at 66-67.) But she said she believed she would not be biased against the police because of that incident. (ECF No. 12-10 at 67.) She also stated that she would need “some pretty good evidence or something” in order convict someone without “physical evidence like DNA or photographs or videos, something outside of just testimony from a witness.” (ECF No. 12-10 at 90.) But no one asked her whether her experience as a sexual assault victim might affect her ability to be fair and impartial in Bailey's trial.

         Juror M.P. also responded affirmatively to the question “Do any of you know personally of someone, yourself or someone close to you, who has been sexually assaulted?” (ECF No. 12-10 at 41, 43.) She reported that her son-in-law was in prison for raping one of her grandson's friends. (ECF No. 12-10 at 44.) The prosecutor asked M.P., “You believe you could listen to testimony and look at evidence in this case and make a decision based just on this case whether you believe these things happened or not?” (ECF No. 12-10 at 45.) M.P. responded, “I think so.” (ECF No. 12-10 at 45.) The court followed-up: “And you could be fair?” (ECF No. 12-10 at 45.) “I think I could, yeah, ” she responded. (ECF No. 12-10 at 45.) Defense counsel asked additional questions, to which M.P. responded, “Needless to say, I have great horrible feelings against my son-in-law, my daughter's husband. … Whether it would affect the way I feel about somebody else, I mean, I'm sure-This is all fairly new. He's only been actually convicted of it for--since early summer. … You know, I think I could be but I just have bad feelings about this person. … [M]y son-in-law.” (ECF No. 12-10 at 45-46.) She agreed that her feelings were not directed toward alleged sexual assailants generally but rather were specific to her son-in-law. (ECF No. 12-10 at 46.) Thus, when defense counsel asked, “And you believe that you can sit and listen to testimony from different sources and separate that from sounds like the visceral feeling that you have for your son-in-law?”, she responded, “Yeah, I think so. Yes.” (ECF No. 12-10 at 46.)

         The only other information obtained regarding M.P. is that she is retired (ECF No. 12-10 at 76), and she previously served on a criminal jury decades earlier (ECF No. 12-10 at 73).

         The Wisconsin Court of Appeals rejected Bailey's arguments, noting that jurors are presumed to be impartial and that it is Bailey's burden to prove bias. (ECF No. 1-1, ¶ 5 (citing State v. Smith, 2006 WI 74, ¶ 19, 291 Wis.2d 569, 716 N.W.2d 482).) With respect to M.P., the court noted that her son-in-law's case was factually distinct from Bailey's case, and M.P. said she thought she could be fair and that her bad feelings were not toward persons charged with sex crimes generally but were directed at her son-in-law, specifically. (ECF No. 1-1, ¶ 8.) Thus, there was no reason to conclude that she was either objectively or subjectively biased. (ECF No. 1-1, ¶ 8.)

         As for L.W., the court of appeals rejected Bailey's argument that bias should be presumed because neither the court nor the attorneys specifically questioned her regarding her potential bias. (ECF No. 1-1, ¶ 9.) The court distinguished Oswald v. Bertrand, 374 F.3d 475 (7th Cir. 2004), a case where the Seventh Circuit Court of Appeals granted habeas relief in part because the circuit court had not inquired about potential juror bias resulting from, in part, potential jurors discussing amongst themselves the superfluity of a trial in light of what they believed to be overwhelming evidence of the defendant's guilt. (ECF No. 1-1, ¶ 10.) The court concluded that “[t]here is nothing in the record before us to suggest that L.W. could not serve as an impartial juror.” (ECF No. 1-1, ¶ 11.)

         As for the ineffective assistance of counsel aspect of Bailey's challenge to L.W. serving as a juror, the court of appeals found the record undeveloped. (ECF No. 1-1, ¶ 9.) The court noted that trial counsel did not testify at a post-conviction hearing despite being present. (ECF No. 1-1 at fn. 1.)

         “The due process clause of the Fourteenth Amendment entitles a state criminal defendant to an impartial jury, which is to say a jury that determines guilt on the basis of the judge's instructions and the evidence introduced at trial, as distinct from preconceptions or other extraneous sources of decision.” Oswald v. Bertrand, 374 F.3d 475, 477 (7th Cir. 2004) (citing Morgan v. Illinois, 504 U.S. 719, 726 (1992); Patton v. Yount, 467 U.S. 1025, 1037 n. 12 (1984); Irvin v. Dowd, 366 U.S. 717, 721-23 (1961); United States v. McClinton, 135 F.3d 1178, 1185-86 (7th Cir. 1998); United States v. Angiulo, 897 F.2d 1169, 1182-83 (1st Cir. 1990)). If the court becomes aware of possible juror bias it must “determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial.” Oswald, 374 F.3d at 478 (quoting Remmer v. United States, 347 U.S. 227, 230 (1954); citing United States v. Thomas, 463 F.2d 1061, 1063-64 (7th Cir. 1972); United States v. Humphrey, 208 F.3d 1190, 1198-99 (10th Cir. 2000); United States v. Davis, 177 F.3d 552, 556-57 (6th Cir. 1999); Howard v. ...


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