     Case: 14-60563      Document: 00513103334         Page: 1    Date Filed: 07/02/2015




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

                                    No. 14-60563                                  FILED
                                  Summary Calendar                             July 2, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
EMERSON OSBORNE,

                                                 Petitioner-Appellant

v.

RONALD KING,

                                                 Respondent-Appellee


                  Appeals from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 2:12-CV-55


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Emerson Osborne appeals the denial of his 28 U.S.C. § 2254 application,
wherein he sought to challenge his conviction of capital murder. The district
court granted Osborne a certificate of appealability on the issue of whether the
trial court erred in denying a motion for mistrial based on allegations of juror
bias. Osborne argues that a juror made an inflammatory statement in front 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 14-60563

other prospective jurors.     He contends that this statement indicated a
predisposition towards conviction.
      On habeas review, this court reviews the district court’s findings of fact
for clear error and its legal conclusions de novo. Summers v. Dretke, 431 F.3d
861, 868 (5th Cir. 2005). When, as in this case, the petitioner’s claim has been
adjudicated on the merits by the state court, the Antiterrorism and Effective
Death Penalty Act (AEDPA) requires that the federal court’s review of the
state court’s decision be deferential. Id.; see § 2254(d). Under § 2254(d)’s
deferential standard, federal habeas relief cannot be granted unless the state
court’s adjudication either “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court” or “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.” Summers, 431 F.3d at 868 (internal
quotation marks and citation omitted). Factual findings by the state court are
presumed to be correct, and a petitioner has the burden of rebutting this
presumption with clear and convincing evidence. Id.
      To obtain relief on a claim that a venire member concealed information,
a party must show both that a juror failed to answer honestly a material
question on voir dire and that a correct response would have provided a valid
basis for a challenge for cause. McDonough Power Equip., Inc. v. Greenwood,
464 U.S. 548, 556 (1984) (civil case); accord Montoya v. Scott, 65 F.3d 405, 418-
19 (5th Cir. 1995) (accepting, arguendo, that a McDonough Power Equpment
theory of juror bias would be sufficient to obtain federal habeas relief). “Even
when a juror’s non-disclosure is dishonest . . ., his behavior is not a basis for
reversal unless the dishonesty appears to be rooted in bias or prejudice.”




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                                 No. 14-60563

United States v. Bishop, 264 F.3d 535, 555 (5th Cir. 2001) (direct criminal
appeal).
      The only evidence of potential bias came from a former prospective juror.
However, that prospective juror was unable to state whether the comment was
an expression of frustration or an actual representation of the juror’s feelings
regarding the case. The juror could not remember making the statement but
acknowledged that she was frustrated with having to be at jury duty. She
affirmed that her voir dire answers were truthful and that she had no
preconceived opinions regarding guilty or the penalty.
      Osborne has not made a showing that Pitts concealed information or
inaccurately answered voir dire questions. See McDonough Power Equip., 464
U.S. at 556. As such, he has not rebutted the presumption of correctness that
applies to the trial court’s factual findings regarding Pitts’s impartiality. See
Summers, 431 F.3d at 868.
      Osborne has not demonstrated that the district court erred in
determining that he was not entitled to federal habeas relief on his claim.
Accordingly, the judgment is AFFIRMED.




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