     Case: 10-50674     Document: 00511889619         Page: 1     Date Filed: 06/18/2012




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

                                                                            FILED
                                                                           June 18, 2012
                                     No. 10-50674
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALLAN SCOTT FISHER, also known as Alan Scott Fisher,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:09-CV-278


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Allan Scott Fisher, federal prisoner # 29196-080, appeals the district
court’s denial of his 28 U.S.C. § 2255 motion, challenging his conviction for
possession with intent to distribute at least five grams of crack cocaine. He
argues that his trial counsel was ineffective in that he did not object to the
presence of an allegedly biased juror. We granted a certificate of appealability
on this issue and granted the Government’s motion to remand the case to the



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50674    Document: 00511889619      Page: 2   Date Filed: 06/18/2012

                                  No. 10-50674

district court for the limited purpose of supplementing the record and making
factual findings if necessary.
      On remand, the Government submitted an affidavit executed by Fisher’s
trial counsel, Zachary Boyd, and the district court held an evidentiary hearing
at which Boyd, Fisher, and Fisher’s wife, Brenda Fisher, testified. The district
court found that there was no credible evidence that the juror was biased against
Fisher; there was no evidence that any relationship between the juror and Mrs.
Fisher affected the juror’s ability to make a decision based solely on the evidence
admitted during the trial; Fisher did not give his trial counsel any information
indicating that the juror would be anything but favorable to Fisher; the
testimony of counsel and Mrs. Fisher was credible; and the testimony of Fisher
was not credible. The Government filed a motion to supplement the record with
Boyd’s affidavit, which we granted.
      In view of the above evidence, the district court did not err in finding that
there was no credible evidence that the juror was biased against Fisher and that
Fisher did not give his trial counsel any information indicating that the juror
was biased against him at any time. See United States v. Culverhouse, 507 F.3d
888, 892 (5th Cir. 2007). Under these circumstances, counsel had no reason to
question or challenge the juror during voir dire or after the juror advised the
court that he was Mrs. Fisher’s employer. The district court did not err in
holding that counsel’s performance was not deficient because he did not question
or challenge the juror either peremptorily or for cause. See Strickland v.
Washington, 466 U.S. 668, 688 (1984); Virgil v. Dretke, 446 F.3d 598, 608-10
(5th Cir. 2006).
      AFFIRMED.




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