### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 10-31051

JESSIE JAMES WILEY Petitioner-Appellant
v. HARVEY GRIMMER, WARDEN Respondent-Appellee

Appeal from the United States District Court for the Western District of Louisiana, Monroe Division

Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges. PER CURIAM: * Petitioner Jessie James Wiley appeals the denial of his petition for habeas corpus arguing that his trial attorney’s failure to challenge the inclusion on the jury of an employee of the parish sheriff’s depart m e n t constituted ineffective assistance of counsel. Because we find that the record shows the juror was not impliedly biased and petitioner suffered n o p r ejudice, we affirm the district court’s denial of habeas relief. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D March 13 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-31051 Document: 00511786756 Page: 1 Date Filed: 03/13/2012No. 10-31051 I. Jessie James Wiley (Wiley) was charged with posse s s i on of cocaine with intent to distribute in Tensas Pa rish, Louisiana. During the jury selection for his trial in state court, Wiley’s attorney did not challen g e the inclusion of Richard Townsend (Townsend), an employee of the parish sheriff’s department. Townsend stated to the court that he was employed as a janitor at a local high school, and that he worked on the night shift as a jailer with the Tensas Parish Sheriff’s office. Townsend had been employed as a jailer for about two months prior to the trial, durin g whi c h t i m e he had heard nothing about Wiley’s case other than “street talk.” When asked whether he would be able to v o t e “ not guilty” if he felt that the state failed to meet its burden of proof, Townsend said that he would. Neither Thomas nor the state’s att o r n e y objected to the placement of Townsend on the jury. At trial, the Sheriff of Tensas Parish served as the state’s case agent and its first witness against Wiley. Two of the sheriff’s deputies te s t if ied as fact witnesses against Wiley. At the conclusion of the trial, the jury v o t e d 10-2 to convict Wiley. Townsend, the jury foreman, voted with the majority. Af t er his sentence and conviction were affirmed on direct appeal, Wiley filed a pro se petition in state court for post-conviction relief. He asserted, inter alia, that the jury was unconstitutionally selected because it inclu de d Town send,

a jailer, an d M arcus Harvey (Harvey), who was employed as a patrolman in Tensas Parish. Wiley also argued that his counsel’s failure to challenge Townsend constituted ineffective assistance of counsel. The state court denied Wiley’s p e t i tion, finding with respect to the ineffective assistance of counsel claim that Townsend’s testimony demonstrated that h e w a s not influenced by his position as a jailer, and that Wiley had failed to allege any facts that would constitute actual prejudice as required by the Stricklandstandard.

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Wiley then filed a petition in district court pursuant to 28 U.S.C. § 2254, alleging the same claims that he alleged in his state court petition. The district court denied that petition, concluding that Wiley had failed to overcome the bar

on relitigation and had failed to show that he was prejudiced by his counsel’s purported deficiencies. Wiley filed a notice of appeal and sought a Certificate of Ap p e a l ab il ity (COA), which the district court denied. On appeal, this court granted a COA in part, vacated the district c o u rt ’ s judgment regarding the claim of ineffective assistance of counsel, and remanded to the district court. On r e m a nd, the district court ordered an evidentiary hearing and appointed counsel for Wiley. Following the evidentiary hearing and the submission of post-heari ng briefs, the district c o u rt denied Wiley’s petition and simultaneously denied a COA. Wiley appealed that ruling, and this court granted a COA regarding the claim that Wiley’s trial counsel was inef fective in failing to challenge the inclusion of Townsend. II. We review a district court’s denial of habeas relief “fo r clear error with respect to findings of fact and de novofor issues of law.” Richardson v. Joslin , 501 F.3d 415, 417 (5th Cir. 2007). Because Wiley’s ineffective assistance of counsel claim was litigated and denied in state c o u rt , the Antiterrorism and Effective Death Penalty Act’s
p r ovisions on relitigation apply here. The Antiterrorism and Effective Death Penalty Act (AEDPA) generally bars relitigation of claims that have previously been adjudicated on the merits by a state court. 28 U.S.C. § 2254(d); see Premo

v. Moore , 131 S. Ct. 733, 739 (2011); Schriro v . Landrigan , 550 U.S. 465, 473 (2007). A petitioner may overcome that bar and obtain federal habeas relief on

a claim that has been litigated in state court only if the petitioner can show that the s tate court’s decision was contrary to clearly established federal law, as
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d e termined by the Supreme Court, that the decision was an unreason ab l e application of such law, or that the de c ision was based on an unreasonable factual determination. 28 U.S.C. § 2254(d)(1)–(2); see also Penry v. Johnson , 532 U.S. 782, 792 (2001). The standard e s t ab lished by the AEDPA and Supreme Court precedent is highly deferential, permitting a federal court to grant relief

on a previously litigated claim only “where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [Supreme Court] precedents.” Harrington v. Richter , 131 S.Ct. 770, 786 (2011). III. In denying Wiley’s post-conviction habeas petition, the state court found that Wiley failed to show that T o w n s end was biased. A juror is biased if his views would prevent or substantially impair the perfo r m a n c e of his duties. Soria v. Johnson , 2 0 7 F .3d 232, 242 (5th Cir. 2000). If a juror is not biased, counsel’s failure to challenge that juror does not support a claim for ineffective assistance of counsel. See Virgil v. Dretke , 446 F.3d 598, 608-09 (5th Cir. 2006). Because there is no evidence of exp re s s bias here, Wiley must show specific facts de m o n strating such a close connection between Townsend and the circumstances at hand that bias is implied as a matter of law. United States v. Scott , 854 F.2d 697, 699 (5th Cir. 1988). Juror bias is imputed o n ly i n extraordinary circumstances, Andrews v. Collins , 21 F.3d 612, 6 2 0 (5th Cir. 1994), and no such circumstances were presented i n thi s c ase. See Scott , 854 F.2d at 699-700; United States v. Buckhalter , 986 F.2d 875, 879 (5th Cir. 1993); Brooks v. Dretke , 444 F.3d 328, 332 (5th Cir. 200 6). As a jailer at the parish courthouse, Townsend did have some connection to the prosecution. His employer, the Tensas Parish Sheriff, served as the case agent for the state and testified on the state’s behalf, as did two of the sheriff’s deputies, and Townsend said during v o i r dire that he knew the prosecutor handling the case. But during his testimony at a hea ri n g o n Wil ey’s state

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motion for a new trial, Townsend stated that he had no contact with the sheriff during the trial, that he did not advise other jurors that he had any connection to the sheriff, and that he did not believe that he influenced the jury or represented the sheriff while serving on th e jury. Townsend’s limited connection to the prosecution, about which he was entirely forthcoming, is not analogous to

c a s e s i n which jurors purposefully concealed their close connection to la w enforcement in order to serve on the jury, as in Scott and Buckhalter , or in which the prosecutor had cle a r power over the juror that could have influenced the juror’s deliberation, as in Brooks. 1 IV. For the foregoing reasons, we conclude that the e vi dence shows that Townsend was not impliedly biased. Accordingly, w e AFFIRM the district court’s denial of habeas relief to Wiley.

The judgment of the district court is AFFIRMED.

Becaus e of the highly def ere ntial st andar d es tabl ish ed by the AEDPA, we do not need 1 to go beyond det erm ining that the st ate court wa s reaso nable in det erm ining that Tow nse nd wa s unbias ed and pet itio ner did not suf fer pr ejudi ce. We have no quarr el, how ever, wi th the dis tri ct court’s conc lus ion that couns el’s dec isi on not to chall enge Tow nse nd wa s an info rm ed st rat egic dec isi on. Trial couns e l conc lude d, bas ed on thirty-f ive years of pr act ice in Tens as Paris h, that Tow nse nd, wh o wa s young, African- Ame rican , an d so mewh at fam iliar wi th Wile y, wo uld be mo re sym patheti c than a “w hite , cons ervat ive far me r. ” We agree wi th the dis tri ct c o urt that this wa s not “s o ill chos en [a st rat egy] that it per me ate[ d] the entire tr i a l w i t h obvious unf

airne ss .” Johns on v. D retke , 394 F.3d332 , 337 (5th Cir

. 2004)

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