IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50834
Summary Calendar
LUKE LEE, JR.,
Petitioner-Appellant-Cross-Appellee,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee-Cross Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-99-CV-692-JN
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June 11, 2002
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Luke Lee, Jr., appeals the district court’s denial of his 28
U.S.C. § 2254 habeas corpus petition. Lee argues that the
district court erred in refusing to consider the affidavits of
two jurors and in determining that the state court did not
unreasonably apply federal law in rejecting his claim of
ineffective assistance of counsel. The respondent also appeals,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-50834
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arguing that the district court erred in holding that Lee’s
petition was timely filed.
It is unclear whether Lee’s 28 U.S.C. § 2254 petition was
timely filed, as we have not addressed this specific finality
issue in a published opinion. However, even if we assume without
deciding that Lee’s § 2254 petition was timely filed, then Lee
still has not shown that he should receive relief.
Lee contends that the district court erred in refusing to
consider affidavits from two jurors because these affidavits were
considered by the state trial court. The statements contained in
the disputed affidavits fall squarely within the class of
testimony forbidden by FED. R. EVID. 606(b). The district court
thus did not abuse its discretion in refusing to consider them.
See Williams v. Collins, 16 F.3d 626, 636 (5th Cir. 1994);
Weaver v. Puckett, 896 F.2d 126, 126-27 (5th Cir. 1990).
Lee’s final contention is that the state courts unreasonably
applied federal law in determining that his trial attorney did
not render ineffective assistance of counsel. He argues that
counsel rendered deficient performance based on his decision not
to present certain mitigating evidence and that this performance
prejudiced the defense. Counsel’s decision not to present the
disputed evidence was based on sound trial strategy. See
Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1992); Williams,
16 F.3d at 634. The state court’s conclusion that counsel did
not render a deficient performance thus does not constitute an
No. 01-50834
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unreasonable application of federal law. See Neal v. Puckett,
286 F.3d 230, 246 (5th Cir. 2002) (en banc). The judgment of the
district court is AFFIRMED.