     Case: 16-40394      Document: 00514421470         Page: 1    Date Filed: 04/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                      United States Court of Appeals

                                      No. 16-40394
                                                                               Fifth Circuit

                                                                             FILED
                                                                          April 9, 2018
TRACY LYNN ESCOBEDO,                                                    Lyle W. Cayce
                                                                             Clerk
              Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 4:13-CV-76


Before STEWART, Chief Judge, and HAYNES and WILLETT, Circuit Judges.
PER CURIAM:*
       Tracy Lynn Escobedo is currently serving a life sentence following his
state court conviction of serious bodily injury to a child committed intentionally
or knowingly. He requests a writ of habeas corpus under 28 U.S.C. § 2254,
claiming that he was convicted by a jury that was not impartial in violation of
the Sixth Amendment. Escobedo argues that six of the jurors that convicted
him were biased because, in his view, they expressed a willingness to convict



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 16-40394

him based upon a “clear and convincing” standard of proof, which is less than
the required “beyond a reasonable doubt” standard. The district court denied
his habeas petition, and this court granted a certificate of appealability (COA)
on the impartial jury claim. We AFFIRM.
       Escobedo was charged with, and pleaded not guilty to, serious bodily
injury to a child committed intentionally or knowingly. He was ultimately
convicted in a jury trial.         During the trial, Escobedo challenged fifteen
venirepeople for cause on the basis that the venirepeople could see “no
difference between burdens of proof, [and were] willing to find him guilty on
clear and convincing evidence, which is not what’s required.” The trial judge
denied all fifteen of those challenges for cause, and six of the venirepeople that
Escobedo had challenged for cause were seated on the jury. In so doing, the
trial judge specifically noted the confusing nature of counsel’s questions and
stated: “I have been doing this a lot of years, and I don’t think I could have
answered your question.” The jury as constructed found Escobedo guilty and
sentenced him to life imprisonment.              Following the denial of Escobedo’s
appeals through the state court system, 1 the denial of his state habeas petition,
and a district court’s denial of his federal habeas petition, we granted a COA
on the issue of whether Escobedo was convicted by an impartial jury.
       There is a question in this case as to whether the standard of review is
de novo or is governed by the more deferential standard under 28 U.S.C.
§ 2254(d). Even assuming de novo review, however, we must affirm because
there is no evidence that the jurors in question were actually biased. To
determine if a venireperson is biased, the critical question is whether a



       1The parties dispute whether Escobedo procedurally defaulted his claim by failing to
properly preserve error in the Texas district court proceedings. For purposes of this appeal,
we assume without deciding that Escobedo did properly preserve error.

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                                     No. 16-40394

venireperson can “abide by existing law” and “take an oath to well and truely
[sic] try this case.” See Adams v. Texas, 448 U.S. 38, 44–45 (1980) (quoting
Boulden v. Holman, 394 U.S. 478, 483–84 (1969) and Lockett v. Ohio, 438 U.S.
586, 594–95 (1978) (alteration in original)). If a venireperson can answer this
question affirmatively, then that person is not biased. See id.
      Importantly, here, none of the six challenged venirepeople were asked
whether their statements regarding the burden of proof would affect their
ability to abide by the law as instructed by the judge. Thus, Escobedo’s counsel
never clarified whether the venirepeople were actually unable or unwilling to
follow the trial court’s instructions as to the burden of proof. Indeed, when the
trial judge interjected in the line of questioning by Escobedo’s counsel
regarding the burden of proof to explain that the burden of proof in the case
was beyond a reasonable doubt, none of the six challenged venirepeople
indicated that they could not apply that burden of proof. Therefore, Escobedo
has not established that the answers to his questions about “clear and
convincing evidence” and “beyond a reasonable doubt” actually affected the
venirepeople’s ability to take an oath and apply the law as instructed when
placed on the jury. Thus, Escobedo’s argument that he was convicted by an
impartial jury fails. 2
      AFFIRMED.




      2 We do not reach Escobedo’s ineffective assistance of counsel claims because no COA
was granted as to those claims. Lackey v. Johnson, 116 F.3d 149, 151–52 (5th Cir. 1997).
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