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Bobb v. Dretke, 03-40535 (2003)

Court: Court of Appeals for the Fifth Circuit Number: 03-40535 Visitors: 26
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
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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

Source:  CourtListener

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