     Case: 18-31169      Document: 00515271398         Page: 1    Date Filed: 01/14/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 18-31169                              FILED
                                                                         January 14, 2020
                                                                           Lyle W. Cayce
JOSEPH D. BLUEFORD,                                                             Clerk

              Petitioner - Appellant

v.

TIMOTHY HOOPER, Warden, Elayn Hunt Correctional Center,

              Respondent - Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:17-CV-639


Before HIGGINBOTHAM, JONES, and DUNCAN, Circuit Judges.
PER CURIAM: *
       In 2012, a Louisiana jury convicted Petitioner Joseph D. Blueford of
aggravated battery and possession of a firearm by a convicted felon. Both
convictions were affirmed on appeal. After being denied habeas relief in state
court, Blueford filed a federal habeas petition pursuant to 28 U.S.C. § 2254(d),
challenging his convictions on Sixth Amendment grounds. The district court
denied Blueford’s petition and issued a certificate of appealability. We affirm.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-31169

                               BACKGROUND
      During jury deliberations in Blueford’s trial, the foreman submitted a
note to the court, stating that another juror, Helen Massey, “has not heard and
has not understood anything that was said in trial and she is wondering what
to do.” After conferencing with state counsel and Blueford’s attorney, George
Britton, the state court declined to remove Massey from the jury. Britton
neither objected to Massey’s remaining on the jury nor sought a hearing to
explore Massey’s competence. The jury returned 10-2 guilty verdicts on the
aggravated battery and possession of a firearm counts and an 11-1 verdict of
acquittal on a separate attempted murder count. Massey voted in the majority
on all three ballots.    As a fourth-felony offender, Blueford received a life
sentence of hard labor for the aggravated battery conviction and a concurrent
sixty-five-year sentence of hard labor for the felon in possession conviction.
      In the state habeas proceedings, Blueford argued that his Sixth
Amendment right to counsel was violated when Britton “failed to object to
Ms. Massey remaining on the jury and returning a verdict when she had not
heard or understood the evidence.” He also argued that the state trial court
violated his Sixth Amendment right to an impartial jury when it allowed
Massey to remain on the jury despite the note complaining Massey had not
heard the trial testimony. After reviewing the record, the state court made the
following factual findings and denied both of Blueford’s claims:
            At the outset of voir dire, the Court specifically
            directed the venire that they should inform the Court
            if they did not hear a question or response so that it
            could be repeated. The Court further asked if any
            were incapable of serving because of a mental or
            physical infirmity. Each member indicated he or she
            met this qualification. At no time during the trial had
            there been any indication that Ms. Massey was having
            difficulty hearing or understanding the proceedings.


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                  The note after deliberations had begun was the first
                  indication of a possible problem. Mr. Britton is a
                  seasoned criminal defense attorney who zealously and
                  competently represented Petitioner at all stages of this
                  trial. He knew from questioning during voir dire that
                  Ms. Massey had served on another criminal jury in the
                  past and that the previous jury had acquitted the
                  defendant because it found the State had failed to
                  carry its burden of proof. After consulting with
                  Petitioner, Mr. Britton made the strategic decision to
                  allow deliberations to proceed without objection
                  because he obviously wanted Ms. Massey to take part.

         On May 15, 2017, Blueford filed the instant petition raising the same
claims. The district court assigned the petition to a magistrate judge (the
“MJ”) who held an evidentiary hearing on the matter, during which Britton
testified. Relying largely on that testimony, on October 16, 2018, the MJ
issued a report and recommendation that Blueford be granted relief on both
claims.        The district court rejected the MJ’s recommendation and denied
Blueford relief, but it issued a certificate of appealability on both claims.
Blueford timely appealed. 1
                                 STANDARD OF REVIEW
         “In a habeas corpus appeal, we review the district court’s findings of fact
for clear error and review its conclusions of law de novo, applying the same
standard of review to the state court’s decision as the district court.” McCamey
v. Epps, 658 F.3d 491, 496 (5th Cir. 2011) (quoting Garcia v. Quarterman,
454 F.3d 441, 444 (5th Cir. 2006)). Under the Antiterrorism and Effective
Death Penalty Act, habeas relief “shall not be granted with respect to any claim
that was adjudicated on the merits in State court proceedings unless” the state
court adjudication (1) “resulted in a decision that was contrary to, or involved

         1   Respondent Timothy Hooper did not file a brief in response to Blueford’s opening
brief.


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an unreasonable application of, clearly established federal law, as determined
by the Supreme Court of the United States”; or (2) “resulted in a decision that
was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d). This
“highly deferential standard . . . demands that state-court decisions be given
the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct. 357,
360 (2002). To obtain relief, a habeas petitioner must show “there was no
reasonable basis for the state court to deny relief.” Harrington v. Richter,
562 U.S. 86, 98, 131 S. Ct. 770, 784 (2011).
                                 DISCUSSION
      Blueford reiterates the same two claims. As a threshold matter, because
Blueford relies heavily on testimony from the MJ’s hearing, we must first
consider whether that hearing was proper.
A.    The Evidentiary Hearing
      When a state court adjudicates a habeas claim on the merits, federal
review of the claim is limited to the record that was before the state court.
Rabe v. Thaler, 649 F.3d 305, 308–09 (5th Cir. 2011). In such cases, “evidence
introduced in federal court has no bearing” on Section 2254(d) review. Id.
(quoting Cullen v. Pinholster, 563 U.S. 170, 181, 131 S. Ct. 1388, 1398 (2011)).
The MJ found an evidentiary hearing was justified because “the state court did
not hold a hearing or make findings of fact on Blueford’s claim that his Sixth
Amendment right to effective assistance of counsel was violated.” That is not
the standard. The pertinent question is whether the state court adjudicated
Blueford’s claims on the merits. The state court considered both claims, made
factual findings as to those claims, and, in a reasoned opinion, denied them
both on the merits. Thus, in reviewing Blueford’s habeas petition, federal
courts may not hold evidentiary hearings outside the strict purview of AEDPA,



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nor may we consider any of the evidence, including Britton’s testimony,
obtained during the federal evidentiary hearing.
B.    Ineffective Assistance of Counsel
      Blueford argues he was denied effective assistance of counsel when
Britton failed to challenge Massey’s presence on the jury.         An ineffective
assistance of counsel claim requires a showing that (1) counsel’s performance
was legally deficient; and (2) the deficiency prejudiced the defense. United
States v. Bernard, 762 F.3d 467, 471 (5th Cir. 2014) (citing Strickland v.
Washington, 466 U.S. 688, 687, 104 S. Ct. 2052, 2064 (1984)). “As to the first
prong, the proper standard for evaluating counsel’s performance is that of
reasonably effective assistance, considering all of the circumstances existing
as of the time of counsel’s conduct.” Id. Deficient performance is that which
falls “below an objective standard of reasonableness.” Strickland, 466 U.S. at
688, 104 S. Ct. at 2064.
      In making this determination, we are highly deferential to counsel’s
performance. Id. “Recognizing the ‘temptation for a defendant to second-guess
counsel’s assistance after conviction or adverse sentence’” the Supreme Court
has cautioned that “counsel should be ‘strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.’” Id. (quoting Strickland, 466 U.S. at 690,
103 S. Ct. at 2052). And the combined standards of review under Strickland
and Section 2254(d) are “doubly deferential.”       Pinholster, 563 U.S. at 190,
131 S. Ct. at 1403.   Under Section 2254(d), “the question is not whether
counsel’s actions were reasonable”; the question is “whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.”
Harrington, 562 U.S. at 105, 131 S. Ct. at 788.




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      The district court held that the state court reasonably found Britton’s
performance was not deficient because Britton’s decision not to seek Massey’s
removal was strategic.    In reviewing such tactical trial decisions, we are
required “not simply to give [counsel] the benefit of the doubt . . . but to
affirmatively entertain the range of possible reasons [he] may have for
proceeding as [he] did.” Feldman v. Thaler, 695 F.3d 372, 380 (5th Cir. 2012).
      After receiving the foreman’s note, Britton could have challenged
Massey’s presence on the jury, but in doing so, Britton risked losing a
potentially favorable juror.    As Blueford acknowledges, the choice was
something of a double-edged sword. Massey indicated at voir dire that she had
previously served on another criminal jury that had acquitted a defendant.
She also denied that she had any mental or physical infirmity that would
render her incapable of jury service, and, aside from the foreman’s note, there
was no evidence that she had difficulty hearing during trial. Of course, as
hindsight has now proven, there was also no guarantee that Massey would vote
to acquit, although she did just that on the attempted murder count.
      Faced with this choice, Britton concluded that the best option for
Blueford was not to challenge Massey’s presence on the jury. The state court
found that was a reasonable decision, and we decline to hold otherwise. See
Mann v. Scott, 41 F.3d 968, 984 (5th Cir. 1994) (recognizing that strategic
decisions with double-edged consequences are “granted a heavy measure of
deference in a subsequent habeas corpus attack, and “[u]nder an objective
standard of reasonableness, such . . . tactical decision[s] do[] not constitute
deficient performance.”); see also St. Aubin v. Quarterman, 470 F.3d 1096, 1103
(5th Cir. 2006). Regardless how Britton’s decision panned out, the state court




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had a reasonable basis for concluding that Britton was not ineffective for
making it. 2
C.      State Court Error
        Blueford argues perfunctorily that the state court violated his Sixth
Amendment right to an impartial jury when it allowed Massey to remain on
the jury after receiving the foreman’s note. In denying Blueford habeas relief
on this claim, the state court discredited the note based on Massey’s
affirmations during voir dire and the fact that “at no time during the trial had
there been any indication that Ms. Massey was having difficulty hearing or
understanding the proceedings.” Blueford offers no evidence to controvert the
state       court’s   findings,    which     must      be    presumed        correct.    See
28 U.S.C. § 2254(e)(1).       Significant evidence indicating that Massey was
competent to serve on the jury could reasonably be seen as outweighing the
foreman’s note. We cannot conclude that the state courts unreasonably applied
the law to the facts.
        For the foregoing reasons, the judgment of the district court denying
habeas relief is AFFIRMED.




        2Because the state courts reasonably concluded that Britton’s performance was not
deficient, we need not address Strickland’s prejudice prong. Leal v. Dretke, 428 F.3d 542, 548
(5th Cir. 2005).


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