                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 15 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


STEVE ROMERO,                                    No.   18-55929

              Petitioner-Appellant,              D.C. No.
                                                 5:10-cv-00462-SVW-SP
 v.

MIKE D. MCDONALD,                                MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                           Submitted August 13, 2019**
                              Pasadena, California

Before: SCHROEDER and GRABER, Circuit Judges, and M. WATSON,***
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Michael H. Watson, United States District Judge for
the Southern District of Ohio, sitting by designation.
      Petitioner Steve Romero, a California prisoner, appeals the denial of his

petition for habeas corpus. Romero claims ineffective assistance of counsel

because his trial counsel failed to challenge Juror No. 7, who had said during voir

dire that he could not be fair and impartial. In an earlier appeal, we remanded for a

possible evidentiary hearing on the claim.

      On remand, the district court ruled that no evidentiary hearing was

warranted because counsel had stated at trial that there was a tactical reason for

retaining the juror and no additional evidence or information was now available:

There was no record of the sidebar conversation in which the court and counsel

discussed Juror No. 7, and neither counsel could presently recall the conversation.

      Because the record has not changed on remand, Romero has not met his

burden to establish that counsel’s decision to retain the juror was professionally

incompetent. See Strickland v. Washington, 466 U.S. 668, 689 (1984). Romero’s

claim therefore fails under the first prong of Strickland’s test for ineffective

assistance of counsel. The district court correctly denied the petition.

      AFFIRMED.




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