                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JUN 27 2000
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 ALINE WILLIAMS,

           Petitioner-Appellant,                          No. 00-6087
 v.                                                       No. 00-6103
 NEVILLE MASSIE; DREW                               (D.C. No. CIV-99-439-A)
 EDMONDSON, Attorney General of                            (W.D.Okl.)
 the State of Oklahoma,

           Respondents-Appellees.




                               ORDER AND JUDGMENT         *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Aline Williams appeals the district court’s denial of her 28 U.S.C. § 2254



       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
petition for habeas corpus relief.   1
                                         We deny Williams a certificate of

appealability, deny leave to proceed on appeal in forma pauperis, and dismiss the

appeal.

                                              I.

       In 1997, Williams was convicted in Oklahoma state court of robbery, in

violation of Okla. Stat. tit. 21, § 791. The district court sentenced Williams to 65

years’ imprisonment because she had two or more prior felony convictions.

Williams appealed to the Oklahoma Court of Criminal Appeals, arguing (1) she

was denied an impartial jury because a robbery detective was a juror; (2) the trial

court erred in giving a jury instruction on flight; and (3) the sentence imposed

was excessive. The court summarily affirmed Williams’ conviction and sentence.

       Williams filed an application for post-conviction relief in state district

court, alleging (1) there was insufficient evidence to convict her of robbery; (2)

her rights were violated by the Oklahoma Court of Criminal Appeals granting the

state an extension of time to file its brief in her direct appeal; (3) she was denied

her right to an impartial jury because a robbery detective and an individual who

knew a prosecution witness were jurors; and (4) she received ineffective



       1
          Although docketed under two cases numbers, both cases concern the
district court’s denial of Williams’ § 2254 petition. Case No. 00-6087 is the
appeal on the merits; case No. 00-6103 is the appeal from the district court’s
denial of the certificate of appealability.

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assistance of trial and appellate counsel. The court concluded Williams was

barred from raising the issues because she could have raised them on direct

appeal. The court further concluded the claims of ineffective assistance of

counsel were without merit and denied post-conviction relief. The Oklahoma

Court of Criminal Appeals affirmed the denial.

      In March 1999, Williams filed her § 2254 habeas petition in federal district

court, arguing (1) she was denied an impartial jury because one of the jurors was

a robbery detective; (2) the trial court erred in giving a jury instruction on flight;

(3) the sentence imposed was excessive; (4) there was insufficient evidence to

convict her of robbery; and (5) she was denied an impartial jury because one of

the jurors knew a prosecution witness. The magistrate judge concluded

Williams’ first three claims were raised in her direct appeal and she had not

shown the court’s decision involved an unreasonable application of clearly

established United States Supreme Court precedent or resulted in a decision

based on an unreasonable determination of the facts. The magistrate found that

claims four and five were procedurally barred because Williams failed to

demonstrate cause for failure to raise them in state court or that actual prejudice

resulted. Over Williams’ objections, the district court adopted the magistrate’s

report and denied the petition.

                                          II.


                                           3
      On appeal, Williams argues (1) she received ineffective assistance of

counsel because her attorney recommended keeping a robbery detective on the

jury; and (2) she was denied a fair and impartial trial because a robbery detective

and an individual who knew a prosecution witness were jurors.     2
                                                                      In reviewing the

denial of habeas relief, we review the district court’s factual findings under a

clearly erroneous standard and its legal conclusions de novo.     Rogers v. Gibson ,

173 F.3d 1278, 1282 (10th Cir. 1999),     cert. denied , 120 S. Ct. 944 (2000).

Section 2254(d) provides that a petitioner in the custody of a state court shall not

be granted habeas relief

      with respect to any claim that was adjudicated on the merits in State
      court proceedings unless the adjudication of the claim–(1) 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 (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 proceeding.

See Williams v. Taylor , 120 S. Ct. 1495, 1506-08 (2000) (clarifying § 2254(d)

standard of review).

      We review Williams’ claim of ineffective assistance of counsel de novo.



      2
        Williams also argues the district attorney, her attorney, and two jurors
went into chambers outside her presence. Williams did not present this argument
to the district court and we will not consider it on appeal.   See Smith v. Secretary
of New Mexico Dept. of Corrections , 50 F.3d 801, 814 n.22 (10th Cir. 1995)
(noting that in the absence of extraordinary circumstances we will not consider
issues not raised in the district court for the first time on appeal).

                                            4
See Boyd v. Ward , 179 F.3d 904, 913 (10th Cir. 1999),      cert. denied by Boyd v.

Gibson , 120 S. Ct. 1188 (2000). To establish ineffective assistance of counsel,

Williams must “prove that counsel’s performance was constitutionally deficient

and that counsel’s deficient performance prejudiced the defense.”        Id. (citing

Strickland v. Washington , 466 U.S. 668, 687 (1984)). Williams must overcome

the presumption that counsel’s conduct was constitutionally effective.       Id. at 914.



      Defense counsel did not challenge the prospective juror for cause and

affirmatively acquiesced in the seating of the juror. Defense counsel stated on

the record that she had advised Williams that one of the prospective jurors was a

detective in the robbery division, and Williams stated on the record that she

agreed with defense counsel’s decision to retain the juror on the panel. The

magistrate noted that defense counsel was faced with the difficult decision of

whether to exercise a peremptory challenge on the detective or another potential

juror who also had law enforcement ties and who had served as a witness for the

State in a murder trial. The trial court questioned the detective about whether he

could be impartial and determined that he could. The trial court asked the jury

panel after verdict whether anyone knew the juror was a detective; the one juror

who responded in the affirmative stated that such knowledge did not affect his

decision in the case. Williams has failed to show that she was prejudiced by the


                                            5
detective remaining on the jury.

      Williams also claims her Sixth Amendment and due process rights to an

impartial jury were violated by the detective and an individual who knew a

prosecution witness serving on the jury.      To establish a constitutional violation,

Williams “‘must demonstrate either that the trial resulted in actual prejudice or

that it gave rise to a presumption of prejudice because it involved “such a

probability that prejudice will result that it is deemed inherently lacking in due

process.”’” Lucero v. Kerby , 133 F.3d 1299, 1308 (10th Cir. 1998) (quoting

Brecheen v. Reynolds , 41 F.3d 1343, 1350 (10th Cir. 1994) (quoting        Estes v.

Texas , 381 U.S. 532, 542-43 (1965))). “Absent evidence to the contrary, we

presume that jurors remain true to their oath and conscientiously observe the

instructions and admonitions of the court.”       Id. at 1309 (quotation omitted).

Williams has presented no evidence that either of the jurors was biased or that

she was prejudiced by their serving on the jury. The evidence against Williams

was substantial. When Williams was apprehended, she had the victim’s money.

Williams did not deny that she took the money; she contended only that she did

not take the money directly from the victim. We conclude Williams has not

shown a constitutional violation warranting federal habeas relief and base that

conclusion on substantially the same rationale as set forth in the magistrate’s

report and recommendation filed November 29, 1999.


                                              6
                                      III.

      We DENY Williams a certificate of appealability, DENY leave to proceed

on appeal in forma pauperis, and DISMISS the appeal. The mandate shall issue

forthwith.

                                             Entered for the Court

                                             Mary Beck Briscoe
                                             Circuit Judge




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