     Case: 16-20672      Document: 00514592808         Page: 1    Date Filed: 08/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                    No. 16-20672                         FILED
                                  Summary Calendar                  August 9, 2018
                                                                    Lyle W. Cayce
                                                                         Clerk
JOSEPH LEE FLORES,

                                                 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 Southern District of Texas
                             USDC No. 4:15-CV-1633


Before JOLLY, SMITH, and COSTA, Circuit Judges.
PER CURIAM: *
       Joseph Lee Flores, Texas prisoner # 1694314, appeals the district court’s
summary judgment dismissal of his 28 U.S.C. § 2254 application challenging
his 2008 convictions for aggravated robbery and attempted capital murder of
a peace officer. We granted Flores a certificate of appealability on the issue




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-20672     Document: 00514592808      Page: 2    Date Filed: 08/09/2018


                                  No. 16-20672

whether his trial counsel provided ineffective assistance by failing to challenge
or strike Venireman # 38 for alleged bias.
      In reviewing the denial of § 2254 relief, we apply the same standard of
review to the state court’s decision as the district court. Martinez v. Johnson,
255 F.3d 229, 237 (5th Cir. 2001). Under the Antiterrorism and Effective
Death Penalty Act (AEDPA), a federal court may not grant habeas corpus relief
with respect to a claim that was adjudicated on the merits in state court unless
the adjudication resulted in 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 “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” § 2254(d)(1)-(2); see Harrington v. Richter, 562 U.S. 86, 100-03
(2011) (discussing deferential standard of review imposed by AEDPA).
      To prevail on a claim that defense counsel provided ineffective assistance
at trial, the petitioner must show that his counsel’s performance was deficient
and that the deficient performance prejudiced his defense. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). The Sixth Amendment guarantees a
criminal defendant a fair trial by an impartial jury. Virgil v. Dretke, 446 F.3d
598, 605 (5th Cir. 2006). In conducting a deficient performance analysis in the
context of counsel’s failure to strike an allegedly biased juror, this court first
considers whether the juror at issue was actually biased. Id. at 608-10.
      The relevant question for determining juror bias is “whether the
juror[]. . . had such fixed opinions that [he] could not judge impartially the guilt
of the defendant.” Patton v. Yount, 467 U.S. 1025, 1035 (1984). Because this
question is “plainly one of historical fact,” we may reject a state-court finding
on this point only if the habeas applicant rebuts the presumption of correctness
given to state court factual findings by clear and convincing evidence. Id. at



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                                 No. 16-20672

1036; § 2254(e)(1). As the state court ruled that Flores’s ineffective assistance
claim based on counsel’s failure to strike a biased juror failed under both
prongs of Strickland, the state court implicitly found that the juror was not
biased.
      During voir dire, Venireman #38 affirmed that he “th[ought]” his past
experience as a crime victim “would affect [his] ability to be fair.”       This
ambiguous statement is distinguishable from the responses deemed biased in
Virgil, 446 F.3d at 609-10, where two jurors “unequivocally expressed that they
could not sit as fair and impartial jurors,” id. at 613. Thus, despite Flores’s
assertion that “the record itself” demonstrates Venireman # 38’s actual bias,
he has failed to rebut with clear and convincing evidence the state court’s
presumptively correct implied finding of no bias. See § 2254(e)(1).
      In light of the foregoing, the state habeas court’s decision denying
Flores’s ineffective assistance claim was not contrary to or an unreasonable
application of clearly established federal law as determined by the Supreme
Court. See Strickland, 466 U.S. at 687; § 2254(d)(1). The judgment of the
district court is AFFIRMED, and Flores’s MOTION for appointment of counsel
is DENIED.




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