United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 8, 2007
Charles R. Fulbruge III
Clerk
No. 04-20931
ANTHONY RAY GREEN,
Petitioner - Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee.
______________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(4:04-CV-488)
______________________________________________________________
Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit
Judges.
PER CURIAM:*
Anthony Ray Green, Texas prisoner # 1043732, was convicted by
a jury of burglary with intent to commit aggravated assault. He
filed a 28 U.S.C. § 2254 petition asserting several grounds. After
the petition was denied, our court granted Green a certificate of
appealability (COA) solely on the issue of whether he was denied
*
Under 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opinion should not be published and is not precedent except under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.
effective assistance of counsel because of his attorney’s failure
to challenge specified jurors for bias. (Although Green raises
several other claims, we do not have jurisdiction to address them,
as the requisite COA was not granted on any of them. See Lackey v.
Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997).)
Pursuant to the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), a
petitioner is not eligible for habeas relief unless
the challenged state court proceeding resulted
in: (1) “a decision that was contrary to, or
involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States”; or
(2) “a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding”.
Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir.), cert. denied,
540 U.S. 1154 (2003) (quoting 28 U.S.C. § 2254(d)).
In state court, to establish a claim for ineffective
assistance of counsel (IAC), Green was required to satisfy the two-
prong standard set forth in Strickland v. Washington, 466 U.S. 668,
687 (1984). He must demonstrate: his counsel’s performance was
deficient; and that deficient performance prejudiced his defense.
Id.
A juror is biased if his “views would prevent or substantially
impair the performance of his duties as a juror in accordance with
his instructions and his oath”. Soria v. Johnson, 207 F.3d 232,
2
242 (5th Cir.), cert. denied, 530 U.S. 1286 (2000) (quoting
Wainwright v. Witt, 469 U.S. 412, 424 (1985)). Bias may be either
actual or implied.
To demonstrate actual bias, “admission or factual proof” of
bias must be presented. United States v. Bishop, 264 F.3d 535, 554
(5th Cir.), cert. denied, 535 U.S. 1016 (2002). Although six of
the jurors indicated during voir dire that either they or relatives
had been victims of crimes, including burglaries, each of these
jurors stated he or she could be impartial and decide the case on
the facts. Concerning actual bias, Green offers no evidence
suggesting the jurors’ answers were false.
With respect to implied bias, we reject the respondent’s
contention that, for review under AEDPA, the doctrine of implied
bias is not clearly established federal law as determined by the
Supreme Court. See Brooks v. Dretke, 444 F.3d 328, 329-30 (5th
Cir. 2006). Applying the law as established, Green does not
present the type of evidence upon which bias may be presumed. See
Solis v. Cockrell, 342 F.3d 392, 396-99 (5th Cir.), cert. denied,
540 U.S. 1151 (2004) (discussing limited scenarios in which implied
bias might exist and noting the “carefully watched limits” of the
doctrine). Unlike other cases in which courts have found bias
because a juror failed to disclose he was a victim of a similar
crime, the jurors in this case all disclosed their experiences.
3
See, e.g., Dyer v. Calderon, 151 F.3d 970, 979-82 (9th Cir.), cert.
denied, 525 U.S. 1033 (1998) (implied bias in murder trial when
juror deliberately failed to disclose that her brother had been
murdered and that she had been the victim of numerous burglaries
and crimes). There are no additional factors that would suggest
these experiences were the type that “would inherently create in a
juror a substantial emotional involvement, adversely affecting
impartiality”. Solis, 342 F.3d at 399 (quoting United States v.
Powell, 226 F.3d 1181, 1188-89 (10th Cir. 2000)).
Accordingly, viewed in the light of the underlying two-part
test for an IAC claim, the district court did not err in concluding
that, under AEDPA, the state-habeas court’s rejection of Green’s
IAC claim was neither contrary to, nor an unreasonable application
of, clearly established federal law.
AFFIRMED
4