     Case: 13-41107      Document: 00513255973         Page: 1    Date Filed: 11/02/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-41107
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         November 2, 2015
VICTOR FRANK ROSSER,
                                                                           Lyle W. Cayce
                                                 Petitioner-Appellant           Clerk

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CV-467


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Petitioner-Appellant Victor Frank Rosser, Texas prisoner # 01467509,
appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition
challenging his jury trial conviction for murder. In reviewing the denial of §
2254 relief, this court reviews issues of law de novo and findings of fact for
clear error, applying the same deference to the state court’s decision as does




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-41107    Document: 00513255973     Page: 2   Date Filed: 11/02/2015


                                 No. 13-41107

the district court under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir. 2007).
      Rosser argues that the district court erred in dismissing as procedurally
barred his claim that the state trial court made an improper remark during
voir dire. Rosser was in court at the time that the comment was made and was
aware of the effect, if any, that the comment had on the jury, but he has not
proffered any reason for not having raised this argument in his state court
postconviction applications. Neither has he shown that the resolution of this
claim in his favor would show his actual innocence.         Thus, this claim is
procedurally barred from federal review. See Coleman v. Thompson, 501 U.S.
722, 750 (1991); Sones v. Hargett, 61 F.3d 410, 416 (5th Cir. 1995).
      Rosser next contends that his trial counsel was ineffective in failing to
hire a ballistics expert to show the distance between himself and the victim at
the time of the shooting, arguing that it would have confirmed that the victim
was attempting to reenter the house and was shot by Rosser in self-defense.
Rosser has not demonstrated that the state court misapplied the Strickland v.
Washington, 466 U.S. 668, 689-94 (1984), standard to the evidence. See §
2254(d).
      Lastly, Rosser argues that his counsel was ineffective in failing to
present evidence of his reckless conduct to obtain a jury instruction on the
lesser included offense of manslaughter and in failing to object to the lack of a
manslaughter instruction. The state court correctly applied Strickland in
determining that counsel acted reasonably in pursuing a self-defense theory
and was not deficient in failing to object to the absence of a manslaughter
instruction. See Strickland, 466 U.S. at 689-94.
      AFFIRMED.




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