### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-20079

S. A. DORIS WASHINGTON, Petitioner – Appellant
v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent – Appellee

Appeal from the United States District Court for the Southern District of Texas

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges. PER CURIAM: Petitioner, S.A. Doris Washington, a T exas state prisoner, was convicted by a j ury of aggravated robbery with a deadly w eapon and sentenced to a 55-year term of i mprisonment. His conviction was affirmed on direct appeal. Washington applied for s t ate habeas relief. Washington c laimed, inter alia , that he was d enied the right to an impartial jury and a fair trial due to the bias of a juror. S p e cif

ic ally, Washington asserted that his trial attorney, Kurt Wentz, had rendered ineffective assistance by failing either to challenge for cause or strike Juror Number 12. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

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The trial court record includes the following exchange b etween t r ial counsel and Juror Number 12 during voir dire : MR. WENTZ: The Judge has talked to you about the Fifth Amendment, as well as [the State]. How many of you w ould require a defendant to testify at his trial?

. . . You’ve known this forever, basicall y , e v e r s ince you were taking c ivi cs in junior high school and high school. That doesn’t mean we don’t hav e our own feeling about this. How many simply would require a defendant to testify at his t rial or they would hold it against him if he didn’t?
THE JUROR: Number 12.
MR. WENTZ: In other words, you could not really accor d t h e defendant his Fifth Amendment right?
THE JUROR: Although it is his choice, to me, if it was m e to—if I was on that side I would feel I need t o say whe t h e r I d id or didn’t, explain why. So I would be l e a n i ng towards the prosecution if h e didn’t testify in his own behalf. MR. WENTZ: So you would— THE JUROR: It’s an integrity issue for me.
MR. WENTZ: But basically, I know where you’re coming from and I u nderstand what you’re saying, but I think what you’re s aying— THE JUROR: I would hold it against him, yes. Following these remarks, neither the trial court, the petitioner’s lawyer,

nor th e p r osecutor followed u p on Juror Number 1 2’s statement with further inquiry. Neither party challenged o r struck J uror Number 12, and so h e sat on the jury that convicted Washington. The state h abeas c ourt ordered Mr

. Wentz t o file an affidavit. Finding Wentz’s a f

f idavit t o be credible, the state habeas court adopted the following

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findings of fac t and conclusions of law proposed by the respondent regarding Juror Number 12: 9. According to the credible affidavit o f Kurt Wentz, juror number 12 did not say that h e could not follow the l a w w i t h respect to affording the applicant his 5th Amendment right not to t estify, thereby giving counsel a reason to strike him for cause.
10. According to the credible affidavit of Kurt Wentz, a nd supported by the record, j uror number 12 said that whether or not a defendant testified was an issue of integrity.
11. According to the credible affidavit o f Ku r t Wentz, counsel did
n o t use a peremptory strike on juror number 12 because couns e l believed it was good strategy to keep him—specifically, that because this juror bel i e v e d in the concept of integrity, he would judge harshly the accomplice witness testimony against the applicant. The state habeas court recommended that relief be denied. The Texas Court of Criminal Appeals d enied relief without a written o rder or hearing b ased on the findings of the trial court. Washington then f

iled a 28 U.S.C. § 2 254 h ab e a s petition, raising, inter

a l i a , t h e above claims of denial of a fair trial due to juror bias and ineffe c t iv e assistance of trial c o u n s e l

. Respondent Thaler filed a motion for summary judgment, and the district c ourt granted that motion in part, dismi s sing all of Washington’s claims except those for trial court error and ineffective assistance of counsel relating t o the bias of Juror Numb e r 1 2

. After further b riefing on those i s s u e s , Th al er f

iled a supplemental motion f or summary j udgment on those issues, which the district court granted. The district court granted Washington

a certificate of appealabi l i t y limited to the question of whether the trial court denied Washington a fair trial by not dismissing, s ua s ponte , Juror Number 12. We d enied Washington’s request to expand the COA grant to include his claim of ineffective assistance of counsel.

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On habeas review, we review the district court’s findings o f fact f or clear

error and its l egal conclusions de novo. S ummers v. Dretke , 431 F.3d 8 61, 868 (5th Cir. 2005). Where the petitioner’s claim has been adjudicated on the merits by the state co u r t , t h e f ederal court’s review of the state court’s decision is deferential. See 28 U.S.C. § 2254(d). Under § 2254(d)’s deferentia l s t a n d ard, federal habeas r elief cannot be granted unless the state court’s adjudication either (1) resulted in a decision that was contrary t o, or i nvolved an unreasonable application of, clearly establi s h e d federal law, as determined by the Supreme Court

. . . , or (2) resulted in a decision that was based o n an unreasonable d e termination of the facts in light of the evidence presented in the state court proceeding. Id

. A state court’s decision is “con t r a ry t o . . . c learly established Federal law,

as d e t e r m i n e d by the Supreme Court if: ( 1) the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases, or (2) the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and ne v e r t h eless arrives at a result different f ro m [ S up reme C ourt] precedent.” Summers , 431 F .3d at 869 (internal quotatio n marks and citation omitted). A state court unreasonably applies clearly established Supreme Court precedent “if the state court correctly i dentifies the governing legal rule but applies it unreasonably t o the facts of a particular prisoner’s c a se.” Id. (internal quotatio n m a r ks and citation omitted). The unreasonableness inquiry is an objective one and does not a sk whether the s tate c ourt’s adjudication w as merely

“incorrect.” Id. (internal quotation marks and citation o mitted). Instead, hab e a s relief is w arranted only where the state c ourt’s application of Su p r e m e Court precedent is both incorrect a nd unreasonable. Id. Moreover, a state court’s factua l f

i n dings are presumed correct unless the applicant rebuts that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Finally,

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§ 2254(d) authorizes federal courts to review only a state court’s d e cision, not the written explanation for that decision. Summers , 431 F.3d at 868. The Texas Court of Criminal Appeals’ decision denying relief on Washington’ s j u r or bias c laim was not an unreasonable application o f clearly established federal law as determined by the Supreme Court. The S upreme Court has clearly established a defendant’s Fifth Amendment right t o t estify, e.g., H arris v. New York , 401 U.S. 222, 225 (1971), and S ixth Amendment right to trial by a fair and i mpartial jury, e.g. , Irvin v. Dowd , 366 U.S. 717, 722 (1961). Washington has not, h owever, cited any Supreme Court p recedent e stablishing state trial courts have a duty to s ua sponte dismiss a purportedly biased juror. The S e v enth Circuit, applying § 2254(d)(1), rejected a similar claim of juror bias. Cage v. M

cCaughtry , 305 F.3d 625 (7th Cir. 2002). The court held, in relevant part, This amou n t s to asking whether the judge has an obligation to dismiss a juror for cause even if no lawyer objects.

. . . The S upreme C o u rt has never announced such a rule, and s o it is not a gr o u n d upon which a state prisoner can obtain relief in a fed e r a l habeas corpus proceeding.

. . . The absence o f a case in the Supreme Court (or any other court, as far as we know) declaring such a rule is not surprising. There is nothing suspicious about a lawyer’s refusing to strike a prospective juror for cause. The l awyer might feel that o n balance the juror was more likely to vote for than against his c lient. In the hearing conducted in the d i s t r i ct court on the petitioner’s claim of ineffe c t iv e assistance, his trial l awyer explained that h e had thought that Werth was trying t o get o ff having to serve o n th e jury, and that if he were left on against his will he would blame th e government, which had instituted the case, and t h e r e fore be inclined t o v o t e for an acquittal. Correct o r not, this is the kind of reasoning that a criminal d efendant wants his lawyer to engage in. A rule requiring the judge to exercise all challenges for cause would not serve criminal d e f e ndants and is hardly a plausible interpreta t ion of the Sixth Amendment, let alone one endorsed by any decision of the Supreme Court.

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Id. a t 626 (internal citations omitted). We likewise hold there is no S upreme Court precedent establi s h i n g an obligation for a trial c ourt judge to dismiss a juror for bias where no party objects. M or e over, Washington’s claim for federal habeas r elief is barr e d b y T ea g u e v. Lane , 489 U.S. 288 (1989). In Teague , the Court held that federal courts may not create n ew constitutional rules of c riminal procedure on h abeas review. A new rule is one which was not dictated by precedent existing at the time the petitioner’s conviction became final. A n ew rule is created if th e rule is, in light of [ S u preme Court] precedent, susceptible to d ebate am o ng reasonable minds. If reasonable minds could differ o n whether c urrent l aw requires relief, w e may not grant relief without creating a new rule barred by T e a gue
. V e ga v . Johnson , 149 F.3d 354, 357 (5th C ir . 1 998) (internal c itations a n d quotation marks omitted). Here, granting Washington relief would require us to create a new r ule of criminal procedure out of whole cloth. Therefore, Washington’s claim is barred by Teague

. For these reasons, we AFFIRM.

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