                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         MAR 21 2000

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                               Clerk


 JEFFERY DEAN MOORE,

          Petitioner-Appellant,
                                                       No. 99-6395
 v.                                              (D.C. No. CIV-99-109-R)
                                                       (W.D. Okla.)
 DAYTON J. POPPELL,

          Respondent-Appellee.



                         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 cause is

therefore ordered submitted without oral argument.

      Jeffery Dean Moore, appearing pro se, appeals the denial of his petition for

habeas corpus, filed pursuant to 28 U.S.C. § 2254. He seeks a certificate of

appealability and leave to proceed in forma pauperis.

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
      Mr. Moore was convicted in state court for possessing cocaine,

methylphenidate, and a firearm, all after former conviction of a felony, and for

possessing marijuana. He was found guilty by a jury and sentenced to lengthy

terms of imprisonment. After exhausting his state remedies he filed a petition for

habeas corpus in federal district court. A magistrate judge considered his claims

and recommended that the petition be denied. The district court adopted the

recommendation and denied the petition, also denying Mr. Moore’s request to

proceed in forma pauperis. 1 This action followed.

      In order to proceed in forma pauperis on appeal, petitioner “must show a

financial inability to pay the required filing fees and the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.1991). We

conclude he has made this showing and grant him leave to so proceed. In order to

obtain a certificate of appealability, Mr. Moore must make a “substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253 (c) (2). For the reasons

set out below, we conclude he has not made this showing.

      Although Mr. Moore raised other issues in the district court, he now argues

only that (1) he was denied effective assistance of counsel at trial because his



      1
       Mr. Moore also requested a certificate of appealability. Because the court
did not act on the issue, the certificate is deemed denied.

                                         -2-
attorney failed to move to have an allegedly biased juror removed, and (2) his

appellate counsel was ineffective in failing to raise this issue on direct appeal in

state court. He further asserts he should have been granted an evidentiary hearing

pursuant to 28 U.S.C. § 2254(e)(2). Because the state courts did not address the

issue 2 and the federal district court made its own determination, we review the

district court’s conclusions of law in denying habeas corpus relief de novo. See

LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999).

      This claim stems from the appearance on the jury of Paula Williams, who

Mr. Moore claims was biased against him because they had once been in a

physical altercation. The record indicates Ms. Williams did not acknowledge

during voir dire that she knew Mr. Moore. It was not until the trial had begun

that Ms. Williams informed the prosecutor she knew Mr. Moore. The court

correctly held an in camera hearing during which it asked Ms. Williams whether

she could be fair and impartial, and she stated she could.



      2
        In state post-conviction proceedings, neither the state district court nor the
Oklahoma Court of Criminal Appeals addressed the issue of ineffectiveness of
trial counsel, considering the matter procedurally barred because it had not been
raised on direct appeal. Mr. Moore is correct in arguing that his claim could not
be resolved on the trial record alone, and therefore should not have been
procedurally barred. See English v. Cody, 146 F.3d 1257, 1264 (10th Cir. 1998)
(ineffective assistance claim will only be barred if (1) trial and appellate counsel
differ, and (2) the ineffectiveness claim can be resolved upon the trial record
alone); Brecheen v. Reynolds, 41 F.3d 1343, 1363-64 (10th Cir. 1994) (ineffective
assistance of trial counsel claims can be raised for the first time collaterally).

                                          -3-
      Mr. Moore contends his trial attorney was ineffective in failing to move to

have Ms. Williams removed from the jury. An ineffective assistance of counsel

claim is governed by the familiar standards of Strickland v. Washington, 466 U.S.

668 (1984). To establish a successful ineffective assistance of counsel claim,

petitioner must show that his counsel's performance fell below an objective

standard of reasonableness, and that the deficient performance was prejudicial to

his defense. See id. at 688, 692. The first prong requires Mr. Moore to overcome

the strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance and sound trial strategy in the context of his

case. See Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000); Duvall v.

Reynolds, 139 F.3d 768, 777 (10th Cir. 1998).

      Once the jury was impaneled and the trial had begun, it would have been

difficult to remove a juror who professed to the court an ability to remain

impartial. Mr. Moore’s attorney likely recognized that, by trying to do so, he

risked angering and alienating Ms. Williams, which could have proven disasterous

had the trial judge refused to remove her. Had Mr. Moore’s attorney made the

allegations about Ms. Williams’ supposed bias at that late date, the trial judge

might well have been skeptical, wondering why the issue had not been raised




                                         -4-
earlier. 3 The decision of Mr. Moore’s attorney not to challenge Ms. Williams,

given the unusual circumstances, appears to have been based on trial strategy

which we will not second-guess.

      Because we conclude Mr. Moore’s trial counsel was not unreasonable in

failing to move to have Ms. Williams removed from the jury under the

circumstances presented here, we need not address the second Strickland prong.

We conclude similarly that Mr. Moore’s appellate counsel was not ineffective for

failing to raise the issue on direct appeal. See Boyd v. Ward, 179 F.3d 904, 915

(10th Cir. 1999). The district court did not err in denying Mr. Moore an

evidentiary hearing because he does not meet the requirements of 28 U.S.C. §

2254 (e) (2). See Medlock v. Ward, 200 F.3d 1314, 1323 (10th Cir. 2000).

      For the foregoing reasons, we DENY Mr. Moore’s application for a

certificate of appealability and DISMISS the appeal.

                                      ENTERED FOR THE COURT

                                      Stephanie K. Seymour
                                      Chief Judge




      3
       Indeed, we are left to wonder the same. There is no indication in the
record that Mr. Moore said anything to his attorney during voir dire about Ms.
Williams, at which time she could have been removed easily. It appears that he
only informed his attorney of Ms. Williams’s alleged bias after she told the
prosecutor she was acquainted with Mr. Moore.

                                        -5-
