     Case: 15-40596      Document: 00514477911         Page: 1    Date Filed: 05/18/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 15-40596
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                        May 18, 2018
                                                                         Lyle W. Cayce
JOHN PAUL GALBRAITH,                                                          Clerk


                                                 Petitioner-Appellant

v.

LORIE DAVIS, 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. 4:11-CV-756


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       John Galbraith, Texas prisoner # 1473442, appeals the denial of a 28
U.S.C. § 2254 application challenging his conviction for aggravated sexual
assault of a child and indecency with a child. We granted a certificate of
appealability (“COA”) for his claims that a juror was biased and that trial and




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40596

appellate counsel were ineffective for failing raise the issue.        Galbraith’s
motion for leave to file a supplemental reply brief is GRANTED.
      We disagree with the State’s assertion that Galbraith abandoned his
claim of juror bias by failing to adequately address it in his opening brief, which
is given liberal construction. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993). However, the brief does not include any discussion of the district court’s
determination that federal habeas review of the claim is barred by the
procedural default doctrine. Accordingly, Galbraith has waived any challenge
to that dispositive determination. See Tenny v. Dretke, 416 F.3d 404, 407 &
n.20 (5th Cir. 2005).
      Moreover, even were we to reach the merits of the juror bias claim,
Galbraith would not prevail. “[W]e review the district court’s findings of fact
for clear error and its legal conclusions de novo.” Washington v. Thaler, 714
F.3d 352, 354 (5th Cir. 2013). Because the Texas Court of Criminal Appeals
denied the claim alternatively on the merits, relitigation in federal court is
barred by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) unless
the decision was “contrary to” or “an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States” or “based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” §§ 2254(d)(1)–(2); see
Morales v. Thaler, 714 F.3d 295, 301–02 (5th Cir. 2013). Because Galbraith’s
attorney did not challenge the juror in question, the Court of Criminal Appeals’
decision was not contrary to, or an unreasonable application of, clearly
established federal law. See Washington, 714 F.3d at 354–55. The district
court did not err in applying the relitigation bar. See § 2254(d).
      Galbraith contends that his trial counsel was ineffective for failing to
challenge the juror and that his appellate counsel was ineffective for failing to



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                                  No. 15-40596

preserve the challenge on appeal. While he suggests that the state court’s
denial of his ineffective assistance claims is not entitled to AEDPA deference
because of procedural deficiencies in the state court proceeding, a “full and fair
hearing [in state court] is not a prerequisite to the application of AEDPA’s
deferential framework.” Valdez v. Cockrell, 274 F.3d 941, 948 (5th Cir. 2001).
      The Court of Criminal Appeals denied Galbraith’s ineffective assistance
claims based on an implicit finding that the juror was not biased, which we
treat as a factual finding under Section 2254. See Thompson v. Keohane, 516
U.S. 99, 111 (1995). Galbraith merely speculates that the juror was unable to
set aside her acknowledged “leaning” toward the sexual assault victims and
consider the case impartially. For example, he hypothesizes that she wanted
to be on the jury to vindicate her sister “who may ha[ve] never received justice”
after being sexually abused by their stepfather. Galbraith concedes, however,
that no one knows what the juror’s state of mind was in the jury room. Because
he presents no clear and convincing evidence that she was unable to “lay aside
h[er] impression or opinion and render a verdict based on the evidence
presented in court,” Irvin v. Dowd, 366 U.S. 717, 723 (1961), he fails to
overcome the presumption that the Court of Criminal Appeals’ finding of no
bias was correct. See § 2254(e)(1); Morales, 714 F.3d at 302. The Court of
Criminal Appeals’ finding was not objectively unreasonable; therefore,
Galbraith cannot relitigate the issue or the related ineffective assistance
claims. See § 2254(d).
      To the extent Galbraith also contends that his appellate counsel was
ineffective for raising frivolous claims, we do not address the issue because it
is beyond the scope of the COA. See § 2253(c)(2); Kiser v. Johnson, 163 F.3d
326, 327 & n.1 (5th Cir. 1999).
      The judgment of the district court is AFFIRMED.



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