IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60563

Summary Calendar

EMERSON OSBORNE,

Petitioner-Appellant

v.

RONALD KING,

Respondent-Appellee

Appeals from the United States District Court

for the Northern District of Mississippi

USDC No. 2:12-CV-55

Before SMITH, WIENER, and ELROD, Circuit Judges.

PER CURIAM:*

Emerson Osborne appeals the denial of his 28 U.S.C. § 2254 application, 

wherein he sought to challenge his conviction of capital murder. The district 

court granted Osborne a certificate of appealability on the issue of whether the 

trial court erred in denying a motion for mistrial based on allegations of juror 

bias. Osborne argues that a juror made an inflammatory statement in front of 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 2, 2015

Lyle W. Cayce

Clerk

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No. 14-60563

2

other prospective jurors. He contends that this statement indicated a 

predisposition towards conviction.

On habeas review, this court reviews the district court’s findings of fact 

for clear error and its legal conclusions de novo. Summers v. Dretke, 431 F.3d 

861, 868 (5th Cir. 2005). When, as in this case, the petitioner’s claim has been 

adjudicated on the merits by the state court, the Antiterrorism and Effective 

Death Penalty Act (AEDPA) requires that the federal court’s review of the 

state court’s decision be deferential. Id.; see § 2254(d). Under § 2254(d)’s 

deferential standard, federal habeas relief cannot be granted unless the state 

court’s adjudication either “resulted in a decision that was contrary to, or 

involved an unreasonable application of, clearly established federal law, as 

determined by the Supreme Court” or “resulted in a decision that was based 

on an unreasonable determination of the facts in light of the evidence 

presented in the state court proceeding.” Summers, 431 F.3d at 868 (internal 

quotation marks and citation omitted). Factual findings by the state court are 

presumed to be correct, and a petitioner has the burden of rebutting this 

presumption with clear and convincing evidence. Id.

To obtain relief on a claim that a venire member concealed information, 

a party must show both that a juror failed to answer honestly a material 

question on voir dire and that a correct response would have provided a valid 

basis for a challenge for cause. McDonough Power Equip., Inc. v. Greenwood, 

464 U.S. 548, 556 (1984) (civil case); accord Montoya v. Scott, 65 F.3d 405, 418-

19 (5th Cir. 1995) (accepting, arguendo, that a McDonough Power Equpment

theory of juror bias would be sufficient to obtain federal habeas relief). “Even 

when a juror’s non-disclosure is dishonest . . ., his behavior is not a basis for 

reversal unless the dishonesty appears to be rooted in bias or prejudice.” 

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United States v. Bishop, 264 F.3d 535, 555 (5th Cir. 2001) (direct criminal 

appeal).

The only evidence of potential bias came from a former prospective juror. 

However, that prospective juror was unable to state whether the comment was 

an expression of frustration or an actual representation of the juror’s feelings 

regarding the case. The juror could not remember making the statement but 

acknowledged that she was frustrated with having to be at jury duty. She 

affirmed that her voir dire answers were truthful and that she had no 

preconceived opinions regarding guilty or the penalty.

Osborne has not made a showing that Pitts concealed information or 

inaccurately answered voir dire questions. See McDonough Power Equip., 464 

U.S. at 556. As such, he has not rebutted the presumption of correctness that 

applies to the trial court’s factual findings regarding Pitts’s impartiality. See 

Summers, 431 F.3d at 868.

Osborne has not demonstrated that the district court erred in 

determining that he was not entitled to federal habeas relief on his claim. 

Accordingly, the judgment is AFFIRMED.

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