United States District Court, N.D. Alabama, Northeastern Division
MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE.
action, Mr. Ford challenges his state court conviction. He
argues that he is entitled to a new trial because of a
crucial error in the jury selection phase of his state trial.
On September 7, 2018, the magistrate judge filed a report in
which he recommended that the Court deny Mr. Ford's
§ 2254 petition for a writ of habeas corpus and
dismiss this action with prejudice. (Doc. 11). Mr. Ford, with
the assistance of counsel, filed timely objections to the
report and recommendation. (Doc. 12). This opinion resolves
Mr. Ford's objections.
28 U.S.C. § 636(b)(1)(C), a district court “may
accept, reject, or modify, in whole or part, the findings or
recommendations made by the magistrate judge.” When a
party objects to a report and recommendation, the district
court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C). The Court reviews for plain
error proposed factual findings to which no objection is
made, and the Court reviews propositions of law de
novo. Garvey v. Vaughn, 993 F.2d 776, 779 n.9
(11th Cir. 1993); see also United States v. Slay,
714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam), cert.
denied, 464 U.S. 1050 (1984); Macort v. Prem,
Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006).
the facts are largely undisputed. A jury found Mr. Ford
guilty of first-degree rape and first-degree sexual abuse,
and Mr. Ford is serving a lengthy state sentence as a result
of his conviction. (Doc. 1, p. 1). Mr. Ford contends that the
conviction is the product of ineffective assistance of
counsel. He asserts that because his trial attorney
“completely failed to pay attention during voir
dire, ” his attorney allowed the director of a
child advocacy center to be seated on the jury. (Doc. 1, p.
5). That juror ultimately served as the foreperson of the
jury. During a state court hearing on Mr. Ford's Sixth
Amendment challenge to his conviction, Mr. Ford's trial
attorney acknowledged that “but-for his negligence,
” he would have removed the child advocacy director
from the jury that convicted Mr. Ford. (Doc. 1, p. 5).
Ford pursued his Sixth Amendment challenge through
Alabama's trial and appellate courts, exhausting his
state court effort to obtain relief for the alleged
constitutional violation. (Doc. 1, pp. 5, 12). The Alabama
state courts reviewed his challenge on the merits, and the
Alabama Court of Criminal Appeals concluded that Mr. Ford did
not prove “prejudice” under the second prong of
Strickland v. Washington, 466 U.S. 668 (1984),
because Mr. Ford did not prove that the child advocacy
director actually was biased against him. In his report,
the magistrate judge provided a lengthy excerpt from the
Court of Criminal Appeals' decision. (Doc. 11, pp. 4-7).
report, the magistrate judge correctly described the
deferential standard that applies to state court decisions
under AEDPA. A federal court may not interfere with a state
court decision unless the decision is contrary to controlling
Supreme Court precedent existing at the time of the decision
or the state court unreasonably applied Supreme Court
precedent. Williams v. Taylor, 529 U.S. 362, 404
(2000). The magistrate judge concluded that the decision of
the Alabama Court of Criminal Appeals was neither contrary to
nor an unreasonable application of Supreme Court precedent.
Ford argues that the Court should disregard the magistrate
judge's recommendation because Mr. Ford's trial
counsel admitted that his mistake during jury selection
prejudiced Mr. Ford. (Doc. 12, p. 3). Mr. Ford contends that
he has established a violation of his rights under the Sixth
Amendment because in post- conviction proceedings, he
demonstrated that his trial attorney “definitely [would
have] removed [the child advocacy director juror] with a
peremptory strike.” (Doc. 12, p. 4). Mr. Ford submits
that “but for counsel's errors the complained-of
juror would not have served on the jury, ” and the
juror's “absence from the jury very well could have
changed the nature and dynamic of jury deliberations.”
(Doc. 12, p. 5). According to Mr. Ford, “[t]he second
prong of Strickland only required him to demonstrate
that there was a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.'
Strickland, 466 U.S. at 694. Demonstrating that [the
child advocacy director juror] would not have participated in
the trial meets this burden” (Doc. 12, p. 6),
presumably because Mr. Ford was found guilty of conduct
involving a female who was less than 12 years of age. (Doc.
11, p. 3).
Ford's argument rests on a misunderstanding of the
Strickland test for prejudice. The United States
Supreme Court has held that a district court may not
“set aside a conviction or sentence solely because the
outcome would have been different but for counsel's error
. . .” Lockhart v. Fretwell, 506 U.S. 364,
369-70 (1993). Instead, a criminal defendant must establish
that the proceeding at issue “was fundamentally unfair
or unreliable.” 506 U.S. at 369.
rejecting Mr. Ford's Sixth Amendment challenge to his
conviction, the Alabama Court of Criminal Appeals focused on
Mr. Ford's failure to provide evidence that the child
advocacy director actually was biased against him. (Doc. 11,
pp. 5-7). The Alabama Court of Criminal Appeals' reliance
on the actual bias standard seems to be a reasonable
application of the Strickland prejudice standard.
See Bell v. United States, 351 Fed.Appx. 357, 360
(11th Cir. 2009) (“Bell did not show that juror
Milarsky was actually biased”). Mr. Ford surely may have
been able to establish that his trial was fundamentally
unfair or the result of the trial was unreliable had he
demonstrated that the child advocacy director, who the jurors
selected as their foreperson, was biased against him. But
during post-conviction proceedings, the child advocacy
director testified that neither his job nor the relationships
that he had with law enforcement officers as a consequence of
his job affected his ability to serve as an impartial juror.
This testimony was uncontroverted.
the Court accepts the testimony of Mr. Ford's trial
attorney, but it also accepts the unrebutted testimony of the
child advocacy director. Absent evidence of actual bias or
some other indication that his state court criminal trial was
fundamentally unfair or the guilty verdict unreliable, under
Supreme Court precedent, Mr. Ford is not entitled to
habeas relief. The magistrate judge correctly found
that the Alabama Court of Criminal Appeals' decision was
neither contrary to nor an unreasonable application of
Supreme Court precedent. Under the mandate of § 2254(d),
the magistrate judge correctly deferred to the state
courts' determination. Therefore, the Court will deny Mr.
Ford's habeas petition and dismiss this action
 To establish ineffective assistance of
counsel under Strickland, a petitioner must prove
professionally deficient performance by counsel and prejudice