Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE ON PETITION FOR WRIT OF HABEAS CORPUS BENNETT, Chief Judge. TABLE OF CONTENTS I. INTRODUCTION.1071 A. Factual Background.1071 B. Procedural Background.1072 II. LEGAL ANALYSIS.1073 A. Standard Of Review.1073 B. “Abandoned” Claims.1074 C. Alleged Errors By The Trial Court.1075 1. Denial of request for expert to aid injury selection.1076 2. Admission of evidence of “uncharged crimes”.1076 a. The claim, the recommended disposition, and the objections_1076 b. Reviewability of state rulings on admissibility of evidence.1078 c. Due process review in this case.1081 D. Alleged Errors By Trial And Appellate Counsel.1084 1. Trial counsel’s failure to strike a juror for bias.1084 a. The claim, the recommended disposition, and the objections_1084 b. Prongs of the “ineffective assistance” analysis. . 1086 i. Professional performance . .1087 ii. Prejudice. .1088 2. Ineffective assistance concerning insufficiencies in the trial information. .1094 a. Characterization of the claims. .1094 b. Recommended findings and disposition. .1097 c. Counsel’s objections and requisite review. .1100 i. Lack of notice. .1101 ii. Evidence of intent to kidnap Cheryl Beck. .1105 III. CONCLUSION. .1107 Seeking relief from his convictions in state court for murder, burglary, robbery, and kidnapping, the petitioner filed a petition for a writ of habeas corpus from this federal court pursuant to 28 U.S.C. § 2254. The petitioner asserts, inter alia, that the state trial court violated his right to due process by denying his request for an expert to aid in jury selection and by admitting evidence of uncharged crimes; his trial counsel was ineffective in failing to strike a biased juror and in failing to argue that the trial information gave insufficient notice of the murder and burglary offenses with which petitioner was charged; and his appellate counsel was ineffective in failing to preserve trial counsel’s error with regard to the insufficiency of the trial information. A magistrate judge recommends that relief be denied on all of the grounds asserted by the petitioner, and the petitioner asserts various objections to that recommendation, both pro se and through counsel. Therefore, this court must undertake a de novo review of the findings of fact and conclusions of law of the magistrate judge to which objections have been made. I. INTRODUCTION A. Factual Background As Magistrate Judge Paul A. Zoss observed in his February 7, 2001, Report and Recommendation in this matter, the Iowa Supreme Court found the following facts on petitioner Ernest F. Walters’s direct appeal of his October 18, 1985, convictions for first-degree murder, first-degree burglary, first-degree robbery, and two counts of second-degree kidnapping: Defendant Ernest Walters and Cheryl Beck lived with each other for several years. A son, Elijah, was born to them. In April 1985 Cheryl left Walters and moved back in with her parents, taking Elijah with her. In June 1985 Walters abducted Ruth Corcoran. After forcing Corcoran to drive to St. Louis and then to Chicago, Walters and Corcoran drove to the home of Cheryl Beck’s parents, in Jackson County[, Iowa]. Carrying a handgun, Walters forced his way into the Beck house. Walters shot and killed Cheryl’s father, Robert Beck, and shot and wounded Cheryl’s mother and sister. Walters then fled, taking Corcoran, Cheryl and Elijah with him. At one point Walters sexually abused Cheryl. After two days Walters was apprehended in Missouri. State v. Walters, 426 N.W.2d 136, 137-38 (Iowa 1988); see also Report and Recommendation at 2-3 (quoting this portion of the Iowa Supreme Court’s ruling). As Judge Zoss correctly observed, these facts are “presumed to be correct” for purposes of Walters’s habeas corpus action. See 28 U.S.C. § 2254(e)(1). Moreover, none of Walters’s claims for habeas corpus relief in the present action involves a challenge to any of these facts. B. Procedural Background Walters was tried before a jury in Iowa District Court for Muscatine County after the trial judge granted Walters’s motion for a change of venue for his trial from Jackson County, owing to pre-trial publicity and the prominence of the alleged murder victim, Robert Beck, in Jackson County. See id. at 138. The jury convicted Walters on all five of the charges against him. Following his conviction, Walters was sentenced to life in prison on the murder charge and twenty-five years imprisonment on each of the other charges. The Iowa Supreme Court affirmed Walters’s conviction on direct appeal on June 15, 1988, and dismissed as frivolous his appeal of denial of post-conviction relief, without an opinion, on March 15,1993. Walters then filed the present petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of Iowa. His petition was transferred to this court on June 9, 1997. On October 24, 1997, after initial review, the court ordered the respondent to answer the petition. The court also granted Walters’s application for appointment of counsel. The respondent answered the petition on February 13, 1998. Walters filed a “Recasted Petition” on October 16, 1998, which the respondent answered on November 10, 1998. The parties then submitted briefs in support of and resistance to the claims asserted in the “Recasted Petition.” In Walters’s case, the briefs included submissions by counsel and by Walters pro se. On May 25, 2000, the undersigned referred this matter to Magistrate Judge Paul A. Zoss pursuant to 28 U.S.C. § 636(b)(1)(B) for the filing of a report and recommended disposition of the petition. Judge Zoss heard oral arguments on the merits of Walters’s petition on July 18, 2000, and submitted the Report and Recommendation currently under review on February 7, 2001, after receiving supplemental post-argument briefs from the petitioner, again through counsel and pro se. Although Walters asserted eight grounds for relief in his “Recasted Petition,” Judge Zoss concluded in his Report and Recommendation that Walters had abandoned grounds 4, 5, and 8. In his Report and Recommendation, Judge Zoss characterized the claims Walters is still pursuing as follows: 1. Walters received ineffective assistance of counsel in violation of his Fifth, Sixth, and Fourteenth Amendment rights because his trial counsel “failed to strike or [re]move for cause juror Edna Phillips whose relationship to the State’s complaining witnesses cause this juror to be biased or otherwise tainted.” 2. Walters was denied his right to due process under the Fourteenth Amendment because the trial court denied Walters’s motion for an expert to aid in jury selection. 3. Walters was denied his right to a fair trial under the Fourteenth Amendment because the trial court denied Walters’s motion in limine to exclude testimony of “uncharged crimes,” to-wit: that Walters had sexually abused his wife [girlfriend Cheryl Beck]. Hi H* Hi ❖ H* H« 6. Walters’s trial counsel was ineffective in failing to argue the felony underlying Count II of the indictment (first degree burglary) “was not defined or identified until the jury instructions were given.” 7(a). Trial counsel was ineffective for failing to argue “lack of sufficient notice” in Count I of the indictment, the killing of Bob Beck. 7(b). Appellate counsel was ineffective for failing to preserve a claim that trial counsel was ineffective for failing to argue “lack of sufficient notice” in Counts I and II of the indictment. Report and Recommendation at 4-5. Walters has not objected to Judge Zoss’s characterization of the claims he is still pursuing. However, Walters does object to other portions of Judge Zoss’s February 7, 2001, Report and Recommendation, which recommends denial of all of Walters’s claims. Specifically, on February 20, 2001, Walters’s counsel filed objections to the portions of the Report and Recommendation pertaining to the grounds for relief identified above as 6, 7(a), and 7(b). See Plaintiffs Objections To Report And Recommendation, February 20, 2001 (Petitioner’s Counsel’s Objections). On March 26, 2001, after an extension of time to do so, Walters filed pro se objections to the portions of the Report and Recommendation pertaining to grounds for relief identified above as 1 and 8. See Plaintiffs Objections To Magistrate’s Report And Recommendation, March 26, 2001 (Petitioner’s Pro Se Objections). The objections by Walters and his counsel reflect the same “division of labor” shown in their briefing on the merits of Walters’s claims for relief. However, neither Walters nor his counsel objected to the portion of the Report and Recommendation recommending denial of relief on ground 2 identified above. On February 26, 2001, the respondent filed a response to Petitioner’s Counsel’s Objections, which simply referred the court to the respondent’s arguments made in the respondent’s brief filed on August 16, 1999. The respondent did not file a farther response to Petitioner’s Pro Se Objections. Thus, Judge Zoss’s February 7, 2001, Report and Recommendation and Walters’s objections to it are now ripe for consideration by this court. II. LEGAL ANALYSIS A. Standard Of Review The standard of review to be applied by the district court to a report and recommendation of a magistrate judge is established by statute: A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations .to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]. 28 U.S.C. § 636(b)(1). The Eighth Circuit Court of Appeals has repeatedly held that it is reversible error for the district court to fail to conduct a de novo review of a magistrate judge’s report where such review is required. See, e.g., Hosna v. Groose, 80 F.3d 298, 306 (8th Cir.) (citing 28 U.S.C. § 636(b)(1)), cert. denied, 519 U.S. 860, 117 S.Ct. 164, 136 L.Ed.2d 107 (1996); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir.1996) (citing Belk v. Purkett, 15 F.3d 803, 815 (8th Cir.1994)); Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (also citing Belk). However, the plain language of the statute governing review provides only for de novo review of “those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Therefore, portions of the proposed findings or recommendations to which no objections are filed are reviewed only for “plain error.” See Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir.1994) (reviewing factual findings for “plain error” where no objections to the magistrate judge’s report were filed). The court will review Judge Zoss’s recommended disposition of each of the grounds for relief asserted in Walters’s “Recasted Petition” according to the applicable standard of review, in light of the objections filed by Walters and his counsel. B. “Abandoned” Claims As mentioned above, Judge Zoss concluded in his Report and Recommendation that Walters had abandoned grounds 4, 5, and 8 asserted in his “Recasted Petition.” These three grounds for relief are that Count V, the count charging the kidnapping of Ruth Corcoran, should have been severed from the other charges against Walters (Ground 4); that Walters’s trial counsel was ineffective for asserting “self-defense” when counsel knew Walters would testify that the killing of Robert Beck at issue in Count I was “accidental” (Ground 5); and that trial counsel was ineffective, because he had a conflict of interest (Ground 8). Walters’s pro se Objection No. 4, which addresses these grounds for relief, consists of the following: Walters objects to the terse finding by the Magistrate regarding the abandonment of issues enumerated 4, 5 and 8 in the amended petition for habeas corpus. (Report & Recommendation at 4-5). At the July 18, 2000 oral arguments, Walters informed the Magistrate that he was forced to abandon the issues because of change in the prison’s legal access program, i.e., that the prison law library no longer updated Shepherd’s Citations, and this prevented Walters from doing current research. Walters assumes, for purposes of this court’s duties, that the decision by a habeas petitioner to abandon issues has no bearing on how that decision comes about. Petitioner’s Pro Se Objections at 29. This objection is ambiguous. One reading is that Walters objects to Judge Zoss’s failure to identify the reasons for Walters’s abandonment of some of his claims, but Walters does not object to Judge Zoss’s conclusion that the claims are abandoned or to Judge Zoss’s failure to consider those claims. Another reading is that Walters contends that Judge Zoss should have considered whether his abandonment of these claims was involuntary, as a result of changes in the prison library’s collection. This reading might require this court, on de novo review, to consider whether changes in the prison library’s collection were sufficient to render Walters’s abandonment of his claims involuntary, and if so, to consider the merits of the purportedly abandoned claims. Much of the ambiguity of Objection No. 4 arises from the incoherence of its last sentence. Logic suggests that Walters meant to say that he assumes, for purposes of this court’s duties, that how his decision to abandon issues came about has no bearing on his decision to abandon the issues — that is, that the reasons for abandonment have no effect on whether the issues are actually abandoned. This reading would constitute a reaffirmation that Walters acquiesced in the court’s conclusion that he had abandoned the claims, even if he was wrong in his assumption about the impact of reasons for abandonment on whether or not the claims were abandoned. However, this construction is exactly the opposite of what Walters actually said, which is the confusing statement that Walters assumes, for purposes of this court’s duties, that the decision by a habe-as petitioner to abandon issues has no bearing on how that decision comes about — that is, that the decision to abandon issues has no effect on the reasons for abandonment — which seems to put cause and effect in a rather peculiar relationship. Even assuming that the proper reading of Objection No. 4 is that Walters objects to Judge Zoss’s finding that Walters abandoned grounds 4, 5, and 8, de novo review of the record demonstrates that Walters has indeed abandoned those grounds for relief. See 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”); see also Hosna, 80 F.3d at 306 (it is reversible error for the district court to fail to conduct a de novo review of a magistrate judge’s report where such review is required); Grinder, 73 F.3d at 795 (same); Hudson, 46 F.3d at 786 (same). Nowhere in any of the briefing submitted before or after oral arguments before Judge Zoss or in support of objections to Judge Zoss’s Report and Recommendation has Walters identified any portion of the record supporting his contentions in grounds 4, 5, and 8. Assertion of a factual basis for a particular ground for habeas corpus relief might require a court to consider that ground, even in the absence of citation of any legal authority in support of the claim. See, e.g., Frey v. Schuetzle, 78 F.3d 359, 361 (8th Cir.1996) (“ A pro se ... petitioner is not required to identify specific legal theories ... in order to be entitled to relief.’ ”) (quoting Jones v. Jerrison, 20 F.3d 849, 853 (8th Cir.1994)). However, Walters’s utter failure to identify any factual basis in the record for relief on grounds 4, 5, and 8, either in briefing before Judge Zoss submitted his recommended disposition or in Walters’s objections to the Report and Recommendation, does constitute an abandonment of these grounds for habeas corpus relief. Therefore, the court accepts Judge Zoss’s conclusion that Walters has abandoned grounds 4, 5, and 8 in his “Recasted Petition.” C. Alleged Errors By The Trial Court Of the claims still at issue in Walters’s “Recasted Petition,” grounds for relief 2 and 3 allege that the trial court committed certain errors, while grounds 1, 6, 7(a), and 7(b) allege errors by trial or appellate counsel. The court will begin its review of these issues with Walters’s allegations of errors by the trial court. Walters briefed these issues pro se. Judge Zoss recommended that relief be denied on both of the claims of error by the trial court. 1. Denial of request for expert to aid injury selection As “Ground Two” for relief in his “Recasted Petition,” Walters asserts that he “was denied his right to due process where the trial court denied his motion for an expert to aid in jury selection al[l] in violation of the Fourteenth Amendment.” “Recasted Petition,” ¶ 12.B. Ground Two. However, no party has filed objections to Judge Zoss’s recommendation that relief be denied on “Ground Two.” In these circumstances, de novo review of Judge Zoss’s recommendation concerning this ground has not been triggered. See 28 U.S.C. § 636(b)(1) (de novo review is required for “those portions of the report or specified proposed findings or recommendations to which objection is made”). Therefore, the court concludes that de novo review of this claim for relief is not required, and the court will instead review only for “plain error.” See Griffini, 31 F.3d at 692. The court finds that there was no “plain error” in Judge Zoss’s recommendation that relief be denied on “Ground Two.” Upon consideration of the record and arguments of the parties, Judge Zoss concluded that relief should be denied on this ground, because Walters had identified no “ ‘clearly established law, as determined by the Supreme Court of the United States’ ” supporting his contention that the trial court erred in failing to grant his motion for appointment of an expert to aid in jury selection, and Judge Zoss had found none. Report and Recommendation at 21 & n. 9 (quoting 28 U.S.C. § 2254(d)(1)). Judge Zoss found further that courts were nearly uniform in holding that no such right exists. Id. at 21. Finally, Judge Zoss concluded that “Walters has made no legal or factual showing that a jury selection consultant was a ‘basic tool’ required for the defense of the charges against him.” Id. at 22. Therefore, Judge Zoss concluded that Walters could not prevail on this issue. Id. The court agrees with Judge Zoss’s findings and conclusions as to this ground for relief and notes further that Walters filed no objection concerning the disposition of this ground for relief, and thus has not now identified any decision of the United States Supreme Court that would “clearly establish” his right to a jury selection expert, as required for relief under 28 U.S.C. § 2254(d)(1). Finding no plain error, the court will accept Judge Zoss’s recommendation that relief be denied on “Ground Two.” 2. Admission of evidence of “uncharged crimes” The disposition of Walters’s second allegation of error by the trial court — admission of evidence of “uncharged crimes”— requires de novo review, because Walters has filed objections to the portion of Judge Zoss’s Report and Recommendation recommending denial of relief on this ground. See 28 U.S.C. § 636(b)(1). To conduct such a review, the court begins with a statement of the claim as pleaded, Judge Zoss’s recommended disposition, and Walters’s pro se objections. a. The claim, the recommended disposition, and the objections As “Ground Three” for habeas corpus relief, Walters asserts that he “was denied his right to a fair trial under the Fourteenth Amendment when the trial court denied his motion in limine to suppress testimony of uncharged crimes.” “Reeast-ed Petition,” ¶ 12.C. (Ground Three). As supporting facts, Walters alleges the following: The trial court erroneously denied a motion in limine that sought to prevent the government from introducing testimony that Petitioner had sexually abused his wife (an uncharged crime). The testimony substantially prejudiced Petitioner and did nothing to complete the government’s theory of Second-Degree Kidnap. The testimony of sexual abuse from Petitioner’s wife prejudiced the jury, inflamed their passions of contempt and prejudice, causing petitioner not to receive a fair trial. Petitioner was not charged with sexual abuse, and nothing of a[n] actual nature was needed by the government to cause sex abuse to be brought out at trial in order to prove their Second-Degree Kidnap theory. The government’s sole purpose in using the tainted testimony was to prejudice the jury and gain an unfair advantage over Petitioner. Id. Upon consideration of the record and the arguments of the parties on this issue, Judge Zoss found that Walters’s trial counsel had moved to exclude Cheryl Beck’s testimony about alleged forcible intercourse based on lack of relevance and materiality, but the trial court denied that motion, and the testimony came in during trial without further objection. Report and Recommendation at 23. Judge Zoss also found that, at trial, Walters admitted having sex with Cheryl Beck, but contended that it was consensual. Id. Judge Zoss found that, on direct appeal, the Iowa Supreme Court had ruled that the evidence of sexual abuse was admissible under state law “ ‘to show the complete story of the crime,’ ” even if it incidentally showed the commission of another crime. Id. (quoting Walters, 426 N.W.2d at 140). Although Judge Zoss found that Walters did not reassert the issue in his post-conviction relief proceedings, Walters had presented it in these proceedings as a denial of due process, that is, as a federal constitutional claim, with extensive argument concerning the admissibility of the evidence under Rule 404(b) of the Federal Rules of Evidence. Id. Judge Zoss expressed his doubt that the alleged error in admission of the evidence, on the grounds or relevance and materiality, had been preserved, because no objection had been reasserted at trial, but that, even if the error was preserved, the admissibility of evidence is a matter of state law, which this court is “‘powerless to determine.’” Id. (quoting Sweet v. Delo, 125 F.3d 1144, 1154 (8th Cir.1997), cert. denied, 523 U.S. 1010, 118 S.Ct. 1197, 140 L.Ed.2d 326 (1998)). Furthermore, Judge Zoss concluded that Walters had not “fairly presented” his due process challenge to the admission of this evidence to the state court. Id. at 24. Therefore, Judge Zoss concluded that the due process claim was procedurally defaulted. “In any event,” Judge Zoss concluded, “the argument is without merit, [because] [t]he evidence was properly admitted by the trial court to show the complete story of the crime.” See id. Judge Zoss therefore recommended that relief be denied on this issue. Walters aims two of his pro se objections, Objections Nos. 2 and 6, at this portion of Judge Zoss’s Report and Recommendation. In Objection No. 2, Walters objects to Judge Zoss’s finding that he did not “fairly present” his due process claim concerning admission of “bad act” evidence to the Iowa Supreme Court, because that finding is contradicted by the record. Walters contends that he presented the issue on direct appeal in a supplemental pro se brief, relying on federal cases, but the Iowa Supreme Court ignored his due process argument and simply resolved the question of admissibility of the evidence in terms of state law. Walters contends further that the federal decisions on which he now relies stand for the proposition that state evidentiary rulings rise to constitutional dimensions when they are of such magnitude that they result in the denial of fundamental fairness. As to fundamental fairness, Walters contends that admission of the evidence of sexual abuse was irrelevant to any element the State needed to prove on any charged offense and that its admission was unfairly prejudicial, because it would have aroused the passions of the jury against him, so that the jury would not have been able to separate their anger at Walters from their determination of the facts constituting the offense of second-degree kidnapping. He also contends that his due process claim, as asserted here, was “fairly presented” and “exhausted,” because he did everything he could to put the same issue before the Iowa Supreme Court. Walters’s pro se Objection No. 6 appears to be largely duplicative of Objection No. 2, because it again asserts Walters’s objection to Judge Zoss’s finding that there was no record evidence supporting the fact that Walters fairly presented his “due process/fair trial” claim to the state courts. Indeed, Objection No. 6 expressly cross-references Objection No. 2, adding only that the respondent conceded that Walters had exhausted this claim in his answer to the “Recasted Petition,” and that Judge Zoss failed to note that Walters’s trial counsel preserved the error in his motion for a new trial. b. Reviewability of state rulings on admissibility of evidence Assuming, without deciding, that Walters’s due process claim was properly preserved and “fairly presented” to the state court, the court concludes that the merits of the claim hinge upon this court’s power to review state court determinations of the admissibility of evidence and whether, if reviewable, the admission of the “bad act” evidence in Walters’s trial was improper. As to the first question, Judge Zoss concluded that this court is “ ‘powerless to determine that evidence is inadmissible as a matter of [state] law,’ ” Report and Recommendation at 23 (quoting Sweet v. Delo, 125 F.3d 1144, 1154 (8th Cir. 1997)), but he did not consider whether this court could review the admission of evidence on due process or other federal constitutional grounds. Instead, Judge Zoss concluded that the due process claim had been procedurally defaulted. Id. at 24. Nor does Judge Zoss’s conclusion that, “[i]n any event, the argument is without merit” amount to a determination on the merits of Walters’s due process argument — the second question the court now proposes to address, if the issue is reviewable — because Judge Zoss cited only Iowa state court decisions for the proposition that the evidence was properly admitted “[i]n any event” to “show the complete story of the crime,” and none of those decisions considered the admissibility of evidence under a due process standard. See id. Although Walters relies on out-of-circuit precedent for a federal court’s authority, on habeas corpus review, to consider whether admission of evidence by a state court violated the petitioner’s constitutional rights, he need not have gone so far afield. Rather, on several occasions, the Eighth Circuit Court of Appeals has recognized that a federal court may review state court evidentiary rulings to determine whether the defendant’s due process or other constitutional rights were violated, which is precisely the kind of review Walters seeks here. Judge Zoss did not consider those decisions, so the court will review the most pertinent of them now. As the Eighth Circuit Court of Appeals explained in Harris v. Bowersox, 184 F.3d 744 (8th Cir.1999), cert. denied, 528 U.S. 1097, 120 S.Ct. 840, 145 L.Ed.2d 706 (2000), “Because questions concerning the admission of evidence are matters of State law, our review of such questions in a habeas corpus proceeding is limited to determining whether the defendant’s constitutional rights have been violated.” Rainer v. Department of Corrections, 914 F.2d 1067, 1072 (8th Cir.1990), cert. denied, 498 U.S. 1099, 111 S.Ct. 993, 112 L.Ed.2d 1077 (1991). See also Parker v. Bowersox, 94 F.3d 458, 460 (8th Cir. 1996), cert. denied, 520 U.S. 1171, 117 S.Ct. 1439, 137 L.Ed.2d 545 (1997).... A habeas petitioner must show more than error requiring reversal on direct appeal to obtain relief. He must show that the alleged error rendered the entire trial fundamentally unfair — that there is a reasonable probability that the error complained of affected the outcome of the trial — i.e., that absent the alleged impropriety, the verdict probably would have been different. Carter v. Armontrout, 929 F.2d 1294, 1296 (8th Cir.1991) (internal quotations omitted). See also Mercer v. Armontrout, 844 F.2d 582, 587 (8th Cir.) (noting that habeas relief is available only if the alleged error “fatally infected the trial” and deprived the petitioner of “the fundamental fairness which is the essence of due process”) (internal quotations omitted), cert. denied, 488 U.S. 900, 109 S.Ct. 249, 102 L.Ed.2d 238 (1988). In making our fundamental fairness determination, we “review the totality of the facts in the case and the fairness of the whole trial.” McDaniel [v. Lockhart], 961 F.2d [1358,] 1360 [ (8th Cir.1992) ]. Harris, 184 F.3d at 752; see also Robinson v. LaFleur, 225 F.3d 950, 954 (8th Cir.2000) (concluding the petitioner’s due process rights were not violated by exclusion of evidence in his trial in state court, citing Bounds, infra, for the proposition that a state court’s evidentiary rulings warrant federal habeas relief under the due process clause only when the error was so conspicuously prejudicial or of such magnitude as to fatally infect the trial and deprive the petitioner- of due process); Barrett v. Acevedo, 169 F.3d 1155, 1163 (8th Cir.1999) (“Of course, admissibility of evidence at a-state trial is a matter of state law and ordinarily will not form the basis for federal habeas corpus relief. Only when the evidentiary ruling impinges on a specific constitutional protection or is so prejudicial that it amounts to a denial of due process may a federal court grant a habeas corpus remedy.”) (citations omitted), cert. denied, 528 U.S. 846, 120 S.Ct. 120, 145 L.Ed.2d 102 (1999); Bounds v. Delo, 151 F.3d 1116, 1119 (8th Cir.1998) (because evidentiary rulings involve questions of state law, federal courts are not free to reexamine them, but may review only to determine “whether the evidentia-ry rulings constituted a constitutional violation,” and “ ‘[a] state court’s evidentiary rulings can form the basis for federal ha-beas relief under the due process clause only when they were so conspicuously prejudicial or of such magnitude as to fatally infect the trial and deprive the defendant of due process’ ”) (quoting Parker v. Bowersox, 94 F.8d 458, 460 (8th Cir.1996), cert. denied, 520 U.S. 1171, 117 S.Ct. 1439, 137 L.Ed.2d 545 (1997)). The due process or “fundamental fairness” review of the evidentiary question in Harris is still more on point, because the petitioner, like Walters, contended that his due process rights had been violated by the admission of evidence of uncharged “bad acts” in his trial for first-degree murder. Harris, 184 F.3d at 752. The court observed, “[Tjhere is no due process violation simply because a trial court admits evidence of a defendant’s uncharged bad acts.” Id. (citing McDaniel, 961 F.2d at 1360). The court also recognized that, like Iowa, Missouri’s rule against admission of uncharged crimes, wrongs, or acts to show criminal propensity was subject to exceptions, including an exception “ ‘for evidence of uncharged crimes that are part of the circumstances or the sequence of events surrounding the offense charged’ in order ‘to present a complete and coherent picture of the events that transpired.’ ” Id. (quoting State v. Harris, 870 S.W.2d 798, 810 (Mo.) (en banc), cert. denied, 513 U.S. 953, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994), the petitioner’s direct appeal). The court concluded further that the state trial court had not committed a due process violation by admitting evidence of two “bad acts”: a plan to conduct a drive-by shooting, and a plan to kill another person at a bar. Id. at 753-55. As to the first “bad act” in question in Harris, evidence of the petitioner’s plan to conduct a drive-by shooting, it was the state’s theory that the petitioner’s anger with the murder victim over not producing the petitioner’s guns quickly enough to suit the petitioner, which prompted the petitioner to kill the victim, stemmed from the petitioner’s desire to conduct a drive-by shooting of another person. Id. at 753. The court concluded as follows: It seems clear to us that the evidence of Harris’s plans to conduct a ride-by shooting not only completes the picture, as the state court concluded, it also provides a motive for shooting Willoughby. We have discussed similar matters in the context of the Federal Rules of Evidence. See, e.g., United States v. Phelps, 168 F.3d 1048, 1057-58 (8th Cir.1999) (finding no abuse of discretion in admitting evidence relating to a defendant’s actions before and after a shooting); United States v. Luna, 94 F.3d 1156, 1162 (8th Cir.1996) (holding that other bad acts evidence was admissible to explain the government’s theory of the case, as well as for showing the defendant’s motive for participating in an armed robbery); United States v. White, 645 F.2d 599, 602 (8th Cir.) (noting that evidence of other bad acts is admissible when it completes the story of the crime on trial), cert. denied, 452 U.S. 943, 101 S.Ct. 3092, 69 L.Ed.2d 959 (1981). In other words, this evidence had substantial probative value beyond any propensity effect. While our review is limited to constitutional issues, the prosecutor’s comments and Michael Taylor’s testimony regarding Harris’s plans to conduct a ride-by shooting were proper matters for the jury’s consideration. Therefore, we do not believe that the trial court transgressed Harris’s due process rights by allowing the jury to hear this evidence. Indeed, the evidence was admissible. Harris, 184 F.3d at 753. As to evidence of a second “bad act,” an incident at a bar relating to the petitioner’s plan to kill yet another person, the court concluded that the evidence supported the state’s theory of the case, and that, even if the evidence was improper “propensity” evidence, “the admission of this arguably improper propensity evidence [did not] necessarily m.ea[n] that a constitutional error occurred.” Id. at 754. The court noted that it had rejected, at least in part, the argument that the general .rule against propensity evidence had “constitutional qualities,” but even if the admission of the propensity evidence in that case was an error, “it did not fatally infect either the guilt phase or the penalty phase of Harris’s trial.” Id. at 755. This was so, because, as to the guilt phase, there was “overwhelming evidence of Harris’s guilt,” such that the court “believe[d] ... that Harris would have been convicted even had the allegedly prejudicial evidence regarding the Champagne Lounge been excluded.” Id. Moreover, in the penalty phase of the trial, the jury found that other evidence was sufficient to establish the “depravity of mind” aggravating factor, and the jury had also found four other, independent aggravating circumstances, unrelated to any of the challenged “bad acts” evidence, so that “the evidence relating to Harris’s plans to kill someone at the Champagne Lounge in no way fatally infected or tainted the pénalty phase.” Id. The court concluded as follows: In summary, having reviewed the totality of the facts, we cannot say that admitting into evidence Harris’s plans to conduct a drive-by shooting or his activities [at the Champagne Lounge] fatally infected the fairness of his trial, thereby depriving Harris of due process of law. McDaniel, 961 F.2d at 1360. Harris bears the burden of showing that some - prejudice “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Harris has not met that burden. We deny Harris’s request for habeas relief based on the admission of this evidence. Harris, 184 F.3d at 755-56 (emphasis in the original). Thus, Walters is correct that this court can review a state court’s admission of the “bad acts” evidence, but only to the extent of determining whether admission of that evidence amounted to a due process or other constitutional violation — and ordinarily only if the claim of improper admission on constitutional grounds was preserved, “fairly presented,” and thus not procedurally defaulted. Again, the court will assume, without deciding, that the issue was preserved, “fairly presented,” and thus not procedurally defaulted. The question therefore becomes whether review will reveal a due process violation in this case. c. Due process review in this case The court concludes that Walters cannot establish that admission of the “bad acts” evidence of his sexual abuse of Cheryl Beck “fatally infected the trial” to such an extent that it deprived him of “fundamental fairness.” Id. at 752. First, “there is no due process violation simply because a trial court admits evidence of a defendant’s uncharged bad acts.” Id. Moreover, in reviewing the “ ‘totality of the facts in the case and the fairness of the whole trial,’ ” id. (quoting McDaniel, 961 F.2d at 1360), Walters has not carried his “burden of showing that some prejudice ‘worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.’ ” Id. at 755 (quoting Frady, 456 U.S. at 170, 102 S.Ct. 1584) (emphasis in the original). As the Eighth Circuit Court of Appeals held in Harris, in this case, the evidence of the sexual abuse of Cheryl Beck not only completes the picture, as the state court concluded, but. “had substantial probative value beyond any propensity effect.” Id. at 753. Walters contends that the admission of the “bad acts” evidence was not relevant to the state’s proof of any element of the kidnapping charge involving the kidnapping of Cheryl Beck. However, Cheryl Beck’s lack of consent to removal or confinement by Walters was an element of the offense. See iowa Code § 710.1 (defining “kidnapping” as requiring, inter alia, proof that the kidnapper removed or confined another person “knowing that [he] has neither the authority nor the consent of the other to do so”) & § 710.3 (defining second-degree kidnapping as “[kidnapping where the purpose is to hold the victim for ransom or where the kidnapper is- armed with a dangerous weapon”); see also State v. Goff, 342 N.W.2d 830, 832 (Iowa 1983) (decision ante-dating Walters’s offense and conviction defining the elements of second-degree kidnapping as including proof that the kidnapper confined the victim “knowing that he did not have authority or [the victim’s] consent to do so”); State v. Ledezma, 549 N.W.2d 307, 310-11 (Iowa Ct.App.1996) (discussing, in the context of first-degree kidnapping, the element requiring proof that the kidnapper confined the victim “[k]nowing that he lacked her consent to do so”); State v. Hayes, 532 N.W.2d 472, 475 (Iowa Ct.App.1995) (second-degree kidnapping requires proof that the kidnapper “confined or forcibly removed the victim from place to place ... without the victim’s consent”). Whether or not Cheryl Beck consented to accompany Walters was a contested issue at trial. Cheryl Beck testified that she was forced to accompany Walters, because he had taken Elijah, but Walters contended that Cheryl Beck accompanied him willingly. Plainly, evidence that Cheryl Beck subsequently consented to sex with Walters would have provided an inference that her “abduction” was actually consensual — and Walters tried to give rise to that inference by testifying that Cheryl Beck consented to sexual intercourse with him — and just as plainly, evidence that Cheryl Beck was subsequently forced to have sex with Walters would give rise to an inference that her abduction was also against her will. Therefore, even limited to a “constitutional” review, it is apparent in this case, as in Harris, that whether or not the sexual abuse occurred was a “proper matte[r] for the jury’s consideration.” Harris, 184 F.3d at 753. “Therefore, [the court] do[es] not believe that the trial court transgressed [Walters’s] due process rights by allowing the jury to hear this evidence. Indeed, the evidence was admissible.” Id. Furthermore, even assuming, for the sake of argument, that the evidence was merely improper “propensity” evidence, the court “cannot say that the admission of this arguably improper propensity evidence necessarily means that a constitutional error occurred.” Id. at 754. This is so, again as in Harris, because the court has “carefully reviewed the record and believe[s] there was overwhelming evidence of [Walter’s] guilt” on the kidnapping charge involving Cheryl Beck and on all of the other charges against him, such that no fundamental unfairness infected the trial from admission of the “bad acts” evidence. Id. at 755. Although the “bad act” evidence created a reasonable inference that Cheryl Beck was abducted against her will, even had this allegedly prejudicial evidence been excluded, the jury could reasonably have found, from the totality of other testimony concerning the circumstances under which Cheryl Beck left her home in Walters’s company — including the facts that Walters was carrying Cheryl Beck’s son, he had threatened her with a gun before grabbing her son, and he had shot her father, sister, and mother, indicating his willingness to use force — that Cheryl Beck was abducted without her consent. Id. The evidence independent of any “bad acts” evidence was more than sufficient on all of the elements of the kidnapping offense involving Cheryl Beck and on all of the other offenses with which Walters was charged. Id. (considering the sufficiency of “independent” evidence in the absence of the challenged “bad acts” evidence). “Having considered the totality of the facts, [this court] cannot say that admitting this evidence undermined the fundamental fairness of [Walters’s] trial.” Id. Admission of the “bad act” evidence in this case did not deprive Walters of due process of law. The court also concludes that Harris’s reliance on Rules 404(b) and 403 of the Federal Rules of Evidence as establishing a due process error is misplaced. This is so, first, because the federal rules of evidence do not necessarily have “constitutional qualities.” See Harris, 184 F.3d at 755. Moreover, Rule 404(b) is not applicable to evidence, of uncharged offenses that are intertwined with the offenses charged. As the Eighth Circuit Court of Appeals recently explained, It is well established that where evidence of another crime is so intertwined with the offense of conviction that proof of one incidentally involves the other or explains the circumstances of the other, it is not extrinsic. United States v. Phelps, 168 F.3d 1048, 1057-58 (8th Cir.1999); United States v. Swinton, 75 F.3d 374, 378 (8th Cir.1996). Such bad acts are not governed by Rule 404(b). Phelps, 168 F.3d at 1057-58. United States v. Molina, 172 F.3d 1048, 1055 (8th Cir.1999), cert. denied sub nom. Corona v. United States, 528 U.S. 893, 120 S.Ct. 221, 145 L.Ed.2d 186 (1999). This interpretation of Rule 404(b) appears to this court to be an embodiment of the same “completes the story” exception for “propensity” evidence recognized under Iowa law. See Walters, 426 N.W.2d at 140-41. In Molina, the court concluded that the first controlled buy of drugs, on which no charges were based, was “sufficiently intertwined with the offenses charged to remove it from the purview of Rule 404(b).” Molina, 172 F.3d at 1055. In Walters’s case, Rule 404(b) is inapplicable, because the sexual abuse of Cheryl Beck was also “evidence of another crime so intertwined with the offense of conviction that .proof of one incidentally involves the other or explains the circumstances of the other,” and so was “not extrinsic.” Id. The evidence of the sexual abuse of Cheryl Beck “explain[ed] the circumstances” of the kidnapping and was also probative, as explained above, of the victim’s lack of consent. Thus, it was not Rule 404(b) evidence and is not subject to a Rule 404(b) analysis. Id. Walters’s contentions concerning inadmissibility under Rule 403 fare no better. In Molina, the court also rejected the defendant’s contention that, even if the evidence of one controlled buy was not subject to Rule 404(b), it should have been excluded under Rule 403, because its prejudicial effect outweighed its probative value. Id. at 1055-56. The court concluded that the evidence was highly probative of the defendant’s guilt of the offenses charged, and admission- of the evidence was not unfairly prejudicial, where the jury heard evidence of other controlled buys that involved greater quantities of drugs and money. Id. at 1056. Similarly, here, the court finds that the evidence of sexual abuse of Cheryl Beck was highly probative of whether she consented to her abduction, and thus was probative of an element of the charge involving her kidnapping. As to prejudice, “Rule 403 is concerned only with ‘unfair prejudice, that is, an undue tendency to suggest decision on an improper basis.’ ” United States v. Gabe, 237 F.3d 954, 959-60 (8th Cir.2001) (quoting United States v. Yellow, 18 F.3d 1438, 1442 (8th Cir.1994)). As the decision in Molina, suggests, such “unfair prejudice” is absent where the jury has heard other evidence sufficient to support the conviction, which is the case here, so that the prejudicial effect of the evidence was not greater than its probative' value. Molina, 172 F.3d at 1056. Thus, the admission of the evidence of sexual abuse was not barred by Rule 403. Id. Therefore, assuming that Walters’s due process challenge to the admission of evidence of sexual abuse was properly preserved, “fairly presented,” and “exhausted” in state court, that challenge is without merit. Judge Zoss’s Report and Recommendation is modified to include this conclusion, and his recommendation that relief be denied on this ground is accepted as modified. D. Alleged Errors By Trial And Appellate Counsel Walters’s remaining objections concern Judge Zoss’s recommendation that relief be denied on his grounds 1, 6, 7(a), and 7(b), which involve claims of ineffective assistance from. his trial and appellate counsel. Walters briefed the merits of ground 1 pro se, and also filed pro se objections to Judge Zoss’s recommendation that relief be denied on that ground. However, Walters’s counsel briefed the merits of grounds 6, 7(a), and 7(b), and filed the objections pertinent to those grounds. 1. Trial counsel’s failure to strike a juror for bias a. The claim, the recommended disposition, and the objections In 'his “Recasted Petition,” Walters asserts as “Ground One” that he “received ineffective assistance of counsel in violation of his Sixth Amendment Rights.” “Re-casted Petition,” ¶ 12.A. Ground One. As “supporting facts,” Walters alleges the following: Defendants trial counsel failed to strike or move for cause juror Edna Phillips whose relationship to the State’s complaining witnesses caused this juror to be biased or otherwise tainted. Defendant suffered prejudice in that he was denied his right to a fair trial in violation of his Fifth, Sixth and Fourteenth Amendment Rights. Petitioner presented this issue in his State Court Post Conviction Relief action and in his Appeal of the denial of Post Conviction Relief. Id. Walters devoted his most extensive pro se briefing to the merits of this issue as well as his most extensive pro se objections to Judge Zoss’s Report and Recommendation. As Judge Zoss noted, juror Edna Phillips had relatives who were close friends with the family of Robert Beck, the homicide victim, and that Walters contended that Phillips was consequently biased by inflammatory pretrial publicity and by her conversations with relatives, which began within hours after Beck’s death. Report and Recommendation at 14-15. Judge Zoss made an extensive examination of the record of the voir dire of Ms. Phillips and the testimony of Walters’s trial counsel in Walters’s post-conviction relief proceedings, see id. at 15-17, and the court will not repeat here all of those portions of the record. Based upon his examination of the record, Judge Zoss concluded that Walters had not made the necessary showing that his trial counsel’s assistance did not fall within the wide range of reasonable professional assistance nor did he overcome the presumption that his trial counsel’s decision not to strike Phillips as a juror was a reasonable trial strategy. Id. at 18. Specifically, Judge Zoss concluded that the record established that Phillips had some prior knowledge of the facts underlying the charges against Walters, that she had some distant family connection to the victims, and that she expressed some reservations about her ability to be a fair and unbiased juror, including a statement that she would rather not serve on the jury, which Judge Zoss concluded obviously called her impartiality into question. Id. at 18-19. However, Judge Zoss also noted that Phillips stated in voir dire that she had no opinion about Walters’s guilt or innocence, that she could put aside any prior impressions, that she would base her verdict on the evidence presented in court, that she would not let her family influence her decisions, and that she would try her best to be fair. Id. at 19. Judge Zoss noted that Walters’s trial counsel commented, on the basis of his voir dire, that Phillips sounded like she “ ‘would make a good effort to be impartial.’ ” Id. (quoting trial counsel’s comment in the transcript of jury selection). In the circumstances, Judge Zoss found that Walters’s trial counsel had been forced to balance contravening indications and concluded that, “[ajlthough another attorney reasonably might have balanced these factors differently, nothing in the record suggests trial counsel was unreasonable in his ultimate assessment that Phillips would be a fair juror, or at least a better juror than the alternatives.” Id. Judge Zoss also concluded, based on various precedents, that jury selection is a judgment call by an attorney that should not be second-guessed. Id. at 19-20. He further concluded that Walters’s testimony that he asked his counsel to strike Phillips did not change the analysis, because the decision to strike or not strike a juror is a non-fundamental decision to be made by counsel on the basis of his or her professional judgment. Id. at 20. Ultimately, Judge Zoss concluded as follows: Walters’s trial counsel considered all of the factors weighing in favor of and against allowing Phillips to remain on the jury, and then compared her qualifications to those of other potential jurors, concluding that he should not use a strike on Phillips. Based on the record in this case, this was both a reasonable and appropriate conclusion, despite Walters’s disagreement with his counsel’s theory. See United States v. Johnson [Johnson v. Lockhart], 921 F.2d 796, 800 (8th Cir.1990). Furthermore, to demonstrate prejudice under the Strickland standards, Walters would have to show that Phillips “did indeed harbor actual bias against [him].” Parker v. Turpin, 60 F.Supp.2d 1332, 1362 (N.D.Ga.1999) (citing Rogers v. McMullen, 673 F.2d 1185, 1189 (11th Cir.1982)). Walters has made no such showing. The court finds trial counsel was not ineffective and Walters was not prejudiced by leaving Phillips on the jury. Id. at 20-21. In his pro se Objection No. 1, far and away the most detailed and extensive objection in these proceedings, Walters argues that Judge Zoss overlooked supportable record evidence showing “implied” or “inferable” bias in juror Phillips, instead considering exclusively the standard for “actual” bias, and because he overlooked this evidence, Judge Zoss did not reach the correct conclusions concerning his trial counsel’s ineffectiveness in failing to strike Phillips. Walters therefore lays out in detail the record evidence he believes demonstrates Phillips’s implied or inferable bias, including her relationship to the Becks, the effect of pretrial publicity on the jury panel — including the fact that several other panelists admitted that, because of pretrial publicity, they did not believe that they could be fair or had reached a conclusion about Walters’s guilt — the effect of pretrial publicity on Phillips, the effect of information received from Phillips’s relatives, and inferences concerning the biases arising from pretrial publicity and the victim’s prominence reflected in his trial counsel’s motion for a change of venue. Next, Walters argues that the evidence of bias meets the appropriate legal standards. He contends that the facts, including Phillips’s own voir dire responses, demonstrate actual bias so conclusively that Phillips’s denials of bias and preconceived conclusions must be discounted. Furthermore, he contends that the record more than adequately demonstrates Phillips’s implied or presumed bias, because an average person in her position would be prejudiced, and that Phillips’s bias must be inferred, because Phillips disclosed facts that “bespea[k] a risk of partiality sufficiently significant to warrant making a challenge for cause, but not so great as to make mandatory a presumption of bias.” Petitioner’s Pro Se Objections at 16-17. In these circumstances, Walters again argues that Phillips’s own statements that she believed she could be impartial are irrelevant. Finally, turning to the question of whether his trial counsel was ineffective, Walters acknowledges that jury selection is a strategic choice that falls within the wide range of reasonable professional assistance required of counsel. Nevertheless, he argues that, “where a strong possibility for bias is revealed it must be concluded that reasonably competent practitioners would exercise a challenge for cause or use a peremptory strike against such a panelist.” Id. at 19. He argues that, under the circumstances, trial counsel’s reasons for not striking Phillips do not demonstrate any sound or appreciable trial strategy. In essence, Walters argues that the circumstances demonstrating Phillips’s bias are so egregious that counsel could not have performed competently by leaving her on the jury. In another objection related to this issue, Petitioner’s Pro Se Objection No. 5, Walters objects to Judge Zoss’s use of only those portions of the record supporting his limited findings on the bias of juror Phillips. He therefore offers his own appendix of record evidence, which he contends demonstrates that he did not acquiesce in counsel’s decision to leave Phillips on the jury and that many of the prospective jurors admitted to bias and prejudice. b. Prongs of the “ineffective assistance” analysis Like any other claim of ineffective assistance of counsel, a claim that counsel was ineffective in jury selection is subject to the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Johnson v. Norris, 207 F.3d 515, 517 & 520-21 (8th Cir.) (alleged ineffective assistance in jury selection), cert. denied, 531 U.S. 886, 121 S.Ct. 205, 148 L.Ed.2d 144 (2000); White v. Helling, 194 F.3d 937, 940-41 (8th Cir.1999) (alleged ineffective assistance in failing to strike a juror or to examine a spectator, who was a relative of the victim, with whom the juror was seen conversing); Cox v. Norris, 133 F.3d 565, 573-74 (8th Cir.1997) (alleged ineffective assistance in alienating a juror), cert. denied, 525 U.S. 834, 119 S.Ct. 89, 142 L.Ed.2d 70 (1998); Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir.1995) (alleged ineffective assistance in failing to strike a juror with a familial relationship to the victim). Therefore, to uphold Walters’s claim, the court “must find that the counsel’s performance was seriously deficient, and that the ineffective performance prejudiced the defense.” Johnson, 207 F.3d at 517; White, 194 F.3d at 940; Cox, 133 F.3d at 573; Goeders, 59 F.3d at 75. If it is easier to dispose of an “ineffective assistance” claim on the “prejudice” prong of the analysis, however, the court may do so, without consideration of whether or not counsel’s performance met professional standards, because “ ‘[t]he object of an ineffectiveness claim is not to grade counsel’s performance.’ ” Goeders, 59 F.3d at 75 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052). i. Professional performance. As to the first prong of the ineffective assistance analysis, the “professional performance” prong, the court’s “initial inquiry is whether counsel’s omission caused his representation of [the petitioner] to fall below acceptable professional standards.” White, 194 F.3d at 941 (citing Strickland); Cox, 133 F.3d at 573 (“With respect to attorney performance, we must determine whether, in light of all the circumstances, the lawyer’s performance was outside the range of professionally competent assistance.”) (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052). In making this determination, the Eighth Circuit Court of Appeals has observed, “We must resist the temptation to use hindsight to require that counsel’s performance have been perfect. Only reasonable competence, the sort expected of the ‘ordinary fallible lawyer’ ... is demanded by the Sixth Amendment.” White, 194 F.3d at 941 (internal citation omitted) (quoting Nolan v. Armontrout, 973 F.2d 615, 618 (8th Cir.1992)). Applying this standard, in White, the Eighth Circuit Court of Appeals rejected the petitioner’s contention that counsel had performed below professional standards by failing to call a spectator, with whom a prospective juror was seen talking, to testify in chambers about the circumstances and content of the conversation, after the juror was interviewed in chambers, where it was discovered that the spectator was a sister of one of the men the petitioner was on trial for murdering. Id. In rejecting the “ineffective assistance of counsel” claim, the court adopted the conclusion of the Iowa Court of Appeals, on the petitioner’s post-conviction relief application, that, “ ‘[wjhile petitioner’s brief indicates certain aspects of this issue could have been handled more favorably for petitioner, we are unwilling to find that trial counsel’s conduct was outside the bounds of normal competency.’” Id. (quoting White v. State, 380 N.W.2d 1, 5 (Iowa Ct.App.1985)). Thus, the question here is whether the conduct of Walters’s trial counsel in voir dire of juror Edna Phillips fell “outside the bounds of normal competency.” Id. The court concludes that it did not. Walters relies on Johnson v. Armontrout, 961 F.2d 748 (8th Cir.1992), for the proposition that, “[a]bsent the showing of a strategic decision, failure to request the removal of a biased juror can constitute ineffective assistance of counsel.” Johnson, 961 F.2d at 755. In Johnson, the court found that counsel’s performance was “clearly deficient” where he failed to strike or even to question during jury selection four jury members who had heard damaging testimony about the petitioner in a previous trial of another defendant. Id. The court rejected the respondent’s argument that counsel’s failure to request the removal of the jurors for cause was a “strategic” decision, because trial counsel had erroneously told the petitioner that he was unable to use for-cause strikes to remove the jurors in question and counsel had already used five valuable peremptory strikes to remove other prospective jurors who had heard damaging testimony against the petitioner in the prior trial. Id. In Walters’s case, however, there is a basis for concluding that trial counsel’s decision not to strike Edna Phillips from the jury or to request her removal for cause was strategic, thus distinguishing Walters’s case from the circumstances in Johnson. As Judge Zoss noted, Walters’s trial counsel testified in Walters’s post-conviction relief proceedings as follows: I didn’t challenge her because I didn’t feel the