Filed: Nov. 18, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 13, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-40535 Summary Calendar IREL BOBB, JR., Petitioner-Appellant, versus DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee. - Appeal from the United States District Court for the Southern District of Texas USDC No. G-99-CV-601 - Before DUHÉ, BENAVIDES, and STEWART, Ci
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS November 13, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-40535 Summary Calendar IREL BOBB, JR., Petitioner-Appellant, versus DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee. - Appeal from the United States District Court for the Southern District of Texas USDC No. G-99-CV-601 - Before DUHÉ, BENAVIDES, and STEWART, Cir..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS November 13, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40535
Summary Calendar
IREL BOBB, JR.,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-99-CV-601
--------------------
Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:1
Irel Bobb, Jr., Texas prisoner # 770532, was convicted by a
jury in 1996 of two aggravated robberies and was sentenced to forty
years in prison. Bobb filed a 28 U.S.C. § 2254 petition in the
district court challenging his convictions. The district court
granted the respondent’s summary judgment motion and dismissed
Bobb’s petition with prejudice. After Bobb filed a timely notice
of appeal, the district court granted a certificate of
1
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that this opinion should not be published and is not precedent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.
appealability (“COA”) only on Bobb’s claims of a due process
violation and ineffective assistance of counsel stemming from
alleged improper remarks made by the prosecutor during voir dire.
On appeal, Bobb challenges only the prosecutor’s comment
proclaiming himself to be a Christian. Thus he has waived
his right to challenge any of the other remarks made by the
prosecutor during voir dire. See Smith v. Cockrell,
311 F.3d 661,
679 n.12 (5th Cir. 2002), petition for cert. filed, (U.S. June 16,
2003) (No. 02-11309). To the extent that Bobb attempts to raise
any claims other than those on which COA was specifically granted,
we will not review those claims in the absence of an express
request that this court broaden the grant of COA. See Ott v.
Johnson,
192 F.3d 510, 512 n.6 (5th Cir. 1999).
Bobb argues that the prosecutor’s comment so irreversibly
influenced the jury against him before the trial even started that
he was denied his due process right to a fair trial. The district
court dismissed this claim as procedurally barred. In light of the
overwhelming evidence of Bobb’s guilt presented at trial, Bobb has
not demonstrated actual prejudice from the remark, which is
necessary to overcome the procedural bar. See Renz v. Scott,
28
F.3d 431, 432 (5th Cir. 1994). Nor has Bobb shown that, as a
factual matter, he was actually innocent of the crimes of
conviction. See Ward v. Cain,
53 F.3d 106, 108 (5th Cir. 1995).
Consequently, Bobb has failed to show that the district court erred
in dismissing his claim as procedurally barred.
2
Bobb also argues that counsel rendered ineffective assistance
by failing to object to the prosecutor’s alleged improper remark.
Bobb has not shown error in the district court’s finding that the
failure to object was not deficient performance because counsel
could reasonably have thought that such an objection might alienate
any Christians on the jury. Moreover, in light of the overwhelming
evidence of his guilt, Bobb has not shown actual prejudice
resulting from the failure to object. Thus, Bobb has not shown
that the district court erred in dismissing this claim.
See Strickland v. Washington,
466 U.S. 668, 689-94 (1984); Bridge
v. Lynaugh,
838 F.2d 770, 773 (5th Cir. 1988).
AFFIRMED.
3