NOT RECOMMENDED FOR PUBLICATION
File Name: 08a0295n.06
Filed: May 28, 2008
No. 05-2743
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSEPH BENJAMIN TAYLOR, III,
Petitioner-Appellant,
On appeal from the United States
v. District Court for the Western
District of Michigan
UNITED STATES OF AMERICA,
Respondent-Appellee.
/
BEFORE: RYAN, SILER, and COLE, Circuit Judges.
RYAN, Circuit Judge. The petitioner appeals the district court’s judgment
dismissing his motion to vacate his sentence under 28 U.S.C. § 2255, arguing that he was
denied his right to trial counsel as guaranteed by the Sixth Amendment. We conclude that
the petitioner was not denied effective assistance of counsel and we will affirm the district
court’s judgment.
I.
Joseph Benjamin Taylor, III, was indicted on four counts of trafficking in cocaine and
marijuana and one count of possessing a firearm as a convicted felon. During the jury voir
dire, the prosecutor used one of his peremptory challenges to exclude the only African-
American then remaining on the jury venire. Taylor promptly objected, citing Batson v.
Kentucky, 476 U.S. 79 (1986). The prosecutor gave several non-race related reasons for
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excluding the juror, and Taylor responded that the prosecutor’s reasons were pretextual.
The district court denied the Batson challenge and told Taylor that he could renew his
objection after a full jury was selected, but before they were seated.
After the jury was seated, Taylor informed the court that he wanted to renew his
Batson challenge. The trial judge ruled that the objection was untimely, and stated that,
in any event, he would have denied the objection as meritless. At the trial’s conclusion, the
jury returned a guilty verdict against Taylor on all five counts in the indictment and the court
sentenced him to a total of 420 months’ imprisonment. Taylor now appeals.
II.
Taylor argues that his attorney’s failure to renew the Batson challenge before the
jury was seated denied him his Sixth Amendment right to the effective assistance of
counsel. A defendant claiming he was denied his constitutional right to receive reasonably
effective assistance of counsel must demonstrate both that his attorney’s conduct was
constitutionally deficient and that he was prejudiced by the deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
III.
Assuming without deciding that the Batson challenge was made untimely and that
counsel was therefore deficient, it is clear that Taylor suffered no prejudice because the
district court ruled that it would have denied the Batson objection even if it had been timely
asserted. To establish that he was prejudiced by his counsel’s error, Taylor “must show
that there is 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. Since the
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untimeliness of the objection did not affect the outcome of the proceeding, we conclude
that Taylor was not denied effective assistance of counsel, and accordingly affirm the
district court’s judgment.
We acknowledge that the Eleventh Circuit has adopted an “outcome on appeal”
approach in evaluating ineffective assistance of counsel claims where the allegedly
deficient conduct resulted in a failure to preserve an issue for appellate review. See Davis
v. Sec’y for Dep’t of Corrections, 341 F.3d 1310 (11th Cir. 2003). We decline to adopt this
approach.
IV.
We AFFIRM the district court’s judgment.