     Case: 11-11016       Document: 00512057112         Page: 1     Date Filed: 11/19/2012




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

                                                                            FILED
                                                                        November 19, 2012
                                     No. 11-11016
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

TERRY GENE FREEMAN,

                                                  Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:07-CV-176


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Terry Gene Freeman, Texas prisoner # 1174333, was
convicted in 2003 of aggravated sexual assault of a child under the age of 14
years old and was sentenced to life in prison. Freeman v. State, 168 S.W.3d 888
(Tex. App. 2005) (affirming conviction).
       The district court entered judgment dismissing Freeman’s application for
a writ of habeas corpus.         We previously granted Freeman a certificate of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-11016       Document: 00512057112         Page: 2    Date Filed: 11/19/2012

                                      No. 11-11016

appealability (COA) as to whether the district court erred in (1) determining that
his claims of juror bias were unexhausted; and (2) reaching and dismissing his
claims that his Sixth and Fourteenth Amendment right to trial by an impartial
jury were denied because two jurors were actually or impliedly biased by reason
of their prior service on the grand jury that had indicted Freeman’s wife for
failing to protect her daughter from him.1 Freeman v. Thaler, No. 11-11016 (5th
Cir. May 1, 2012) (unpublished; single-judge order).
       We have pretermitted consideration of the first issue but address de novo
the merits of Freeman’s claims of juror bias. See Graham v. Johnson, 168 F.3d
762, 778 (5th Cir. 1999) (“[B]ecause exhaustion is based on comity rather than
jurisdiction, there is no absolute bar to federal consideration of unexhausted
habeas applications.”). In reviewing a district court’s denial of a state prisoner’s
application for a writ of habeas corpus, we review that court’s factual findings
for clear error and its conclusions of law de novo. Gregory v. Thaler, 601 F.3d
347, 352 (5th Cir. 2010).
       The Sixth and Fourteenth Amendments guarantee a defendant the right
to an impartial jury. King v. Lynaugh, 850 F.2d 1055, 1058 (5th Cir. 1988).
When determining if a constitutional violation exists, the pertinent inquiry is
whether the jurors who actually sat were impartial, as required by the Sixth
Amendment. Ross v. Oklahoma, 487 U.S. 81, 86 (1988). The standard for
determining if a juror was biased is whether the juror’s views would prevent or
substantially impair the performance of his duties. Soria v. Johnson, 207 F.3d
232, 242 (5th Cir. 2000). Bias may be actual or implied: It may be revealed
through express admission or by proof of specific facts showing such a close




       1
         Freeman contends that the district court should have convened an evidentiary
hearing. As COA was not granted as to this question, we court lack jurisdiction to consider
it. See Sonnier v. Johnson, 161 F.3d 941, 945-46 (5th Cir. 1998); Lackey v. Johnson, 116 F.3d
149, 151-52 (5th Cir. 1997).

                                             2
    Case: 11-11016     Document: 00512057112       Page: 3    Date Filed: 11/19/2012

                                   No. 11-11016

connection to the circumstances at hand that bias must be presumed as a matter
of law. Brooks v. Dretke, 444 F.3d 328, 329-30 (5th Cir. 2006).
      The record does not support Freeman’s contention that the two jurors in
question were actually biased. See Soria v. Johnson, 207 F.3d 232, 242 (5th Cir.
2000). We will find implicit bias as a matter of law only in extreme situations
when “no reasonable person could not be affected in his actions as a juror and in
which the Constitution refuses to accept any assurances to the contrary.”
Brooks, 444 F.3d at 331; see also United States v. Solis, 342 F.3d 392, 396 (5th
Cir. 2003). We will “not readily presume that a juror is biased solely on the basis
that he or she has been exposed to prejudicial information about the defendant
outside the courtroom.” Willie v. Maggio, 737 F.2d 1372, 1379 (5th Cir. 1984).
      In this case, the two jurors’ alleged grand jury service, if it occurred at all,
was not proximate in time to Freeman’s trial. See United States v. Brown, 699
F.2d 704, 707-08 (5th Cir. 1983). There is no evidence that either of these two
jurors had a close relationship with any of the primary actors in Freeman’s case;
neither is there any reason to believe that they had a substantial emotional
involvement with the case that would overcome the legal presumption of their
impartiality. See Solis, 342 F.3d at 398-99; see also Brooks, 444 F.3d at 330;
Andrews v. Collins, 21 F.3d 612, 620-21 (5th Cir. 1994). The district court’s
judgment of dismissal is
      AFFIRMED.




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