* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 21 2000 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JEFFERY DEAN MOORE, Petitioner-Appellant,

v. DAYTON J. POPPELL, Respondent-Appellee. No. 99-6395 (D.C. No. CIV-99-109-R) (W.D. Okla.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e cause is therefore ordered submitted without oral argument. Jeffery Dean Moore, appearing pro se, appeals the d enial of his petition for habeas corpus, filed pursuant to 28 U.S.C. § 2254. He seeks a certificate of appealability and leave to proceed in forma pauperi s.1 Mr. Moore also requested a certificate of appealabi lity. Because the court

did not act on the issue, the certificate is deemed denied. -2- Mr. Moore was convicted in state court for possessi ng cocaine, methylphenidate, and a firearm, all after former co nviction of a felony, and for possessing marijuana. He was found guilty by a ju ry and sentenced to lengthy terms of imprisonment. After exhausting his state remedies he filed a petition for habeas corpus in federal district court. A magistr ate judge considered his claims and recommended that the petition be denied. The d istrict court adopted the recommendation and denied the petition, also denyin g Mr. Moore’s request to proceed in forma pauperis. 1 This action followed. In order to proceed in forma pauperis on appeal, pe titioner “must show a financial inability to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law and facts in suppo rt of the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir.1991). We conclude he has made this showing and grant him leave to so proceed. In order to obtain a certificate of appealability, Mr. Moore mu st make a “substantial showing of the denial of a constitutional right.” 28 U.S.C . § 2253 (c) (2). For the reasons set out below, we conclude he has not made this sho wing. Although Mr. Moore raised other issues in the distr ict court, he now argues only that (1) he was denied effective assistance of counsel at trial because his2 In state post-conviction proceedings, neither the s tate district court nor the

Oklahoma Court of Criminal Appeals addressed the is sue of ineffectiveness of trial counsel, considering the matter procedurally barred because it had not been raised on direct appeal. Mr. Moore is correct in a rguing that his claim could not be resolved on the trial record alone, and therefor e should not have been procedurally barred. See English v. Cody , 146 F.3d 1257, 1264 (10th Cir. 1998) (ineffective assistance claim will only be barred i f (1) trial and appellate counsel differ, and (2) the ineffectiveness claim can be re solved upon the trial record alone); Brecheen v. Reynolds , 41 F.3d 1343, 1363-64 (10th Cir. 1994) (ineffecti ve assistance of trial counsel claims can be raised fo r the first time collaterally). -3- attorney failed to move to have an allegedly biased juror removed, and (2) his appellate counsel was ineffective in failing to rai se this issue on direct appeal in state court. He further asserts he should have bee n granted an evidentiary hearing pursuant to 28 U.S.C. § 2254(e)(2). Because the st ate courts did not address the issue 2and the federal district court made its own determ ination, we review the district court’s conclusions of law in denying habe as corpus relief de novo. See LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999). This claim stems from the appearance on the jury of Paula Williams, who Mr. Moore claims was biased against him because the y had once been in a physical altercation. The record indicates Ms. Wil liams did not acknowledge during voir dire that she knew Mr. Moore. It was n ot until the trial had begun that Ms. Williams informed the prosecutor she knew Mr. Moore. The court correctly held an in camera hearing during which itasked Ms. Williams whether she could be fair and impartial, and she stated she could.-4-

Mr. Moore contends his trial attorney was ineffecti ve in failing to move to have Ms. Williams removed from the jury. An ineffe ctive assistance of counsel claim is governed by the familiar standards of Strickland v. Washington , 466 U.S. 668 (1984). To establish a successful ineffective assistance of counsel claim, petitioner must show that his counsel's performance fell below an objective standard of reasonableness, and that the deficient performance was prejudicial to his defense. See id. at 688, 692. The first prong requires Mr. Moore to overcome the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance and sound trial strategy in the context of his

case. See Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000) ; Duvall v. Reynolds , 139 F.3d 768, 777 (10th Cir. 1998). Once the jury was impaneled and the trial had begun , it would have been difficult to remove a juror who professed to the co urt an ability to remain impartial. Mr. Moore’s attorney likely recognized that, by trying to do so, he risked angering and alienating Ms. Williams, which could have proven disasterous had the trial judge refused to remove her. Had Mr. Moore’s attorney made the allegations about Ms. Williams’ supposed bias at th at late date, the trial judge might well have been skeptical, wondering why the i ssue had not been raised3 Indeed, we are left to wonder the same. There is n o indication in the

record that Mr. Moore said anything to his attorneyduring voir dire about Ms. Williams, at which time she could have been removedeasily. It appears that he only informed his attorney of Ms. Williams’s allege d bias after she told the prosecutor she was acquainted with Mr. Moore. -5- earlier. 3 The decision of Mr. Moore’s attorney not to chall enge Ms. Williams, given the unusual circumstances, appears to have be en based on trial strategy which we will not second-guess. Because we conclude Mr. Moore’s trial counsel was n ot unreasonable in failing to move to have Ms. Williams removed from the jury under the circumstances presented here, we need not address the second Strickland prong. We conclude similarly that Mr. Moore’s appellate co unsel was not ineffective for failing to raise the issue on direct appeal. See Boyd v. Ward, 179 F.3d 904, 915 (10th Cir. 1999). The district court did not err i n denying Mr. Moore an evidentiary hearing because he does not meet the re quirements of 28 U.S.C. § 2254 (e) (2). See Medlock v. Ward, 200 F.3d 1314, 1323 (10th Cir. 2000). For the foregoing reasons, we DENY Mr. Moore’s application for a certificate of appealability and DISMISS the appeal.
ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge