     Case: 10-30010     Document: 00511242786          Page: 1    Date Filed: 09/23/2010




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

                                                 FILED
                                                                         September 23, 2010
                                     No. 10-30010
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JOSEPH SANDOVAL,
                                                   Petitioner-Appellant
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:09-CV-3060


Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
        Joseph Sandoval, Louisiana prisoner # 395773, appeals the district court’s
denial of his 28 U.S.C. § 2254 petition, challenging his convictions for
distribution of heroin and possession with intent to distribute heroin. The
district court granted a certificate of appealability on the issue whether the
failure of the trial judge, Judge Ronald Bodenheimer, to recuse himself
constituted structural error.
        The district court must defer to the state court’s adjudication on the merits
of an applicant’s claims unless the state court’s adjudication was “contrary to”


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30010     Document: 00511242786 Page: 2         Date Filed: 09/23/2010
                                  No. 10-30010

or involved an “unreasonable application” of clearly established federal law as
determined by the Supreme Court or was based on an unreasonable
determination of the facts. See Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir.
2003); § 2254(d)(1), (2). This court reviews the district court’s findings of fact for
clear error and its conclusions of law de novo. Buntion v. Quarterman, 524 F.3d
664, 670 (5th Cir. 2008).
      Sandoval argued that Judge Bodenheimer should have recused himself
due to an ongoing criminal investigation against him. Sandoval did not allege
that the judge had an actual bias against him or that the judge’s alleged bias
resulted in any specific erroneous rulings in his trial. See Bracy v. Gramley, 520
U.S. 899, 909 (1997). He has not shown presumptive bias, such as when the
judge has a direct interest in the outcome of the case, the judge has been subject
to abuse by the party before him, or the judge had a dual role of investigating
and adjudicating disputes. See Buntion, 524 F.3d at 672. He has not shown that
there was an appearance of impropriety that rose to the level of a due process
violation. See Richardson v. Quarterman, 537 F.3d 466, 476-79 (5th Cir. 2008).
His allegation that bias existed because a detective, who testified at his trial,
also investigated Judge Bodenheimer is unpersuasive; it does not establish that
the judge had an actual or presumptive bias or an appearance of bias that
required recusal. Sandoval has not shown that the outcome of his case had any
potential to affect the outcome of the unrelated case against Judge Bodenheimer.
Therefore, he has not shown that the district court erred in holding that because
there was no direct or presumptive bias, there was no structural error. See
Richardson, 537 F.3d at 478. The district court did not err in determining that
the state court’s decision was not “contrary to” or an “unreasonable application”
of clearly established federal law as determined by the Supreme Court. See
Miniel, 339 F.3d at 336-37.
      AFFIRMED.



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