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Ray v. Johnson, 98-10659 (1999)

Court: Court of Appeals for the Fifth Circuit Number: 98-10659 Visitors: 44
Filed: Sep. 21, 1999
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-10659 FREDDIE JOE RAY, Petitioner-Appellant, VERSUS GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellant. Appeal from the United States District Court for the Northern District of Texas (5:97-CV-225-C) September 20, 1999 Before REAVLEY, HIGGINBOTHAM and DENNIS, Circuit Judges. PER CURIAM:* Appellant, Freddie Joe Ray, appeals from the district court’s denial of his petition for hab
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                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-10659


                         FREDDIE JOE RAY,

                                             Petitioner-Appellant,


                              VERSUS


                 GARY L. JOHNSON, DIRECTOR, TEXAS
                  DEPARTMENT OF CRIMINAL JUSTICE,
                      INSTITUTIONAL DIVISION,

                                             Respondent-Appellant.




          Appeal from the United States District Court
               for the Northern District of Texas
                         (5:97-CV-225-C)
                        September 20, 1999


Before REAVLEY, HIGGINBOTHAM and DENNIS, Circuit Judges.


PER CURIAM:*


     Appellant, Freddie Joe Ray, appeals from the district court’s
denial of his petition for habeas corpus relief.         This court
granted Appellant a Certificate of Appealability on two issues --
(1) whether a juror who admitted to being a friend of the victim is
impliedly biased against the defendant and (2) whether counsel is


     *
      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this opinion should not be published and is not precedent except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.
ineffective for failing to exercise a peremptory strike against
such   a    juror.     See    28    U.S.C.   §     2253(c).      For    the    reasons
hereinafter assigned, we AFFIRM the decision of the district court.
       Juries are presumed to be impartial, and absent extraordinary
circumstances bias should not be imputed to jurors. See Andrews v.
Collins, 
21 F.3d 612
, 620 (5th Cir. 1994).                  A distant relationship
or friendship with the victim, even a close friendship, is not
sufficient to imply bias to a juror.                  Montoya v. Scott, 
65 F.3d 405
, 419-420 (5th Cir. 1995).               Thus, we hold that the admitted
friendship     in    this    case    is   not    a   sufficient      “extraordinary
circumstance” to constitute implied bias of the juror.
       To establish a claim of ineffective assistance of counsel, it
must   be    established     that     (1)    the     counsel’s      performance    was
deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 
466 U.S. 668
, 687 (1984).                           To prove
deficient     performance,     an    appellant       must    show    that   counsel's
failure to strike the juror "fell below an objective standard of
reasonableness." Jones v. Jones, 
163 F.3d 285
, 300 (5th Cir. 1998).
To prove prejudice from this deficient performance, an Appellant
must demonstrate that "there is a reasonable probability that, but
for counsel's unprofessional error, the result of the proceeding
would have been different."           
Id. It is
well-settled that issues of trial strategy do not
constitute ineffective assistance of counsel unless the strategy is
"so ill chosen that it permeates the entire trial with obvious
unfairness".     Garland v. Maggio, 
717 F.2d 199
, 206 (5th Cir.1983).
This Circuit has held that acts of counsel conducted during voir
dire are generally considered a matter of trial strategy.                          See
Teague v. Scott, 
60 F.3d 1167
, 1172 (5th Cir. 1995).                   Accordingly,
we hold that the failure in this case to exercise a peremptory
strike against the disputed juror was a matter of trial strategy
and does not constitute ineffective assistance of counsel.
       AFFIRMED.

Source:  CourtListener

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