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Richardson v. Johnson, 99-20384 (2000)

Court: Court of Appeals for the Fifth Circuit Number: 99-20384 Visitors: 17
Filed: Jun. 27, 2000
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-20384 Summary Calendar ELZIA ALLEN RICHARDSON, Petitioner-Appellant, VERSUS GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. - Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CV-1865 - June 26, 2000 Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges. PER CURIAM:* The district court denied habeas corpus relief to Elzia
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 99-20384
                         Summary Calendar



                      ELZIA ALLEN RICHARDSON,

                                            Petitioner-Appellant,

                              VERSUS

                     GARY L. JOHNSON, Director,
               Texas Department of Criminal Justice,
                       Institutional Division,

                                            Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-97-CV-1865
                       --------------------
                           June 26, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     The district court denied habeas corpus relief to Elzia Allen

Richardson, Texas state prisoner # 522518, and he appeals.         We

AFFIRM.

     After the district court denied Richardson a certificate of

appealability (COA), a judge of this court granted him a COA,

limited to the issue of whether the Texas Court of Criminal Appeals

unambiguously based its dismissal of his state habeas petition on

a procedural bar. Richardson has in effect abandoned this point by

     *
        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that this opinion should not be published and is not precedent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.
                             No. 99-20384
                                  -2-

failing to brief it.    See Al-Ra’id v. Ingle, 
69 F.3d 28
, 33 (5th

Cir. 1995); Yohey v. Collins, 
985 F.2d 222
, 224-25 (5th Cir. 1993).



     Additionally, “[w]e may affirm a judgment on any ground

supported by the record.”    Emery v. Johnson, 
139 F.3d 191
, 195 (5th

Cir. 1997), cert. denied, 
525 U.S. 969
(1998). Richardson’s habeas

claim is that the state trial court denied him due process by

overruling his challenge of venireperson Emma Lopez for cause. She

served on the jury, however, because Richardson used his peremptory

challenges to excuse ten other venirepersons.    The defense did not

ask the court for an additional peremptory challenge or object to

the jury as it was ultimately constituted.

     Under the law of Texas, “[i]n order to preserve error on a

challenge for cause [to a prospective juror], the defendant must

exhaust his peremptory challenges, request additional peremptory

challenges, identify a member of the jury as objectionable, and

claim that he would have struck the juror with a peremptory

challenge.” Broussard v. State, 
910 S.W.2d 952
, 956-57 (Tex. Crim.

App. 1995) (en banc).     The record shows that Richardson’s counsel

complied with only the first of these requirements.

     On similar facts, this court has affirmed the denial of habeas

relief to another Texas prisoner.      Callins v. Collins, 
998 F.2d 269
, 277 (5th Cir. 1993).       Because Richardson clearly was not

denied due process by Lopez’s serving on his jury and since he has

failed to argue the COA issue, the district court’s denial of

habeas relief to him is due to be affirmed.

     JUDGMENT AFFIRMED.

Source:  CourtListener

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