IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40394

TRACY LYNN ESCOBEDO, 

 Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, 

 Respondent - Appellee

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 4:13-CV-76

Before STEWART, Chief Judge, and HAYNES and WILLETT, Circuit Judges.

PER CURIAM:*

Tracy Lynn Escobedo is currently serving a life sentence following his 

state court conviction of serious bodily injury to a child committed intentionally 

or knowingly. He requests a writ of habeas corpus under 28 U.S.C. § 2254,

claiming that he was convicted by a jury that was not impartial in violation of 

the Sixth Amendment. Escobedo argues that six of the jurors that convicted 

him were biased because, in his view, they expressed a willingness to convict 

 

* 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

April 9, 2018

Lyle W. Cayce

Clerk

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No. 16-40394

2

him based upon a “clear and convincing” standard of proof, which is less than 

the required “beyond a reasonable doubt” standard. The district court denied 

his habeas petition, and this court granted a certificate of appealability (COA)

on the impartial jury claim. We AFFIRM. 

Escobedo was charged with, and pleaded not guilty to, serious bodily 

injury to a child committed intentionally or knowingly. He was ultimately 

convicted in a jury trial. During the trial, Escobedo challenged fifteen

venirepeople for cause on the basis that the venirepeople could see “no 

difference between burdens of proof, [and were] willing to find him guilty on 

clear and convincing evidence, which is not what’s required.” The trial judge 

denied all fifteen of those challenges for cause, and six of the venirepeople that 

Escobedo had challenged for cause were seated on the jury. In so doing, the 

trial judge specifically noted the confusing nature of counsel’s questions and 

stated: “I have been doing this a lot of years, and I don’t think I could have 

answered your question.” The jury as constructed found Escobedo guilty and 

sentenced him to life imprisonment. Following the denial of Escobedo’s

appeals through the state court system,1 the denial of his state habeas petition, 

and a district court’s denial of his federal habeas petition, we granted a COA 

on the issue of whether Escobedo was convicted by an impartial jury.

There is a question in this case as to whether the standard of review is 

de novo or is governed by the more deferential standard under 28 U.S.C. 

§ 2254(d). Even assuming de novo review, however, we must affirm because 

there is no evidence that the jurors in question were actually biased. To 

determine if a venireperson is biased, the critical question is whether a 

 

1 The parties dispute whether Escobedo procedurally defaulted his claim by failing to 

properly preserve error in the Texas district court proceedings. For purposes of this appeal, 

we assume without deciding that Escobedo did properly preserve error.

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venireperson can “abide by existing law” and “take an oath to well and truely 

[sic] try this case.” See Adams v. Texas, 448 U.S. 38, 44–45 (1980) (quoting 

Boulden v. Holman, 394 U.S. 478, 483–84 (1969) and Lockett v. Ohio, 438 U.S. 

586, 594–95 (1978) (alteration in original)). If a venireperson can answer this 

question affirmatively, then that person is not biased. See id.

Importantly, here, none of the six challenged venirepeople were asked

whether their statements regarding the burden of proof would affect their 

ability to abide by the law as instructed by the judge. Thus, Escobedo’s counsel 

never clarified whether the venirepeople were actually unable or unwilling to 

follow the trial court’s instructions as to the burden of proof. Indeed, when the 

trial judge interjected in the line of questioning by Escobedo’s counsel 

regarding the burden of proof to explain that the burden of proof in the case 

was beyond a reasonable doubt, none of the six challenged venirepeople 

indicated that they could not apply that burden of proof. Therefore, Escobedo 

has not established that the answers to his questions about “clear and 

convincing evidence” and “beyond a reasonable doubt” actually affected the 

venirepeople’s ability to take an oath and apply the law as instructed when 

placed on the jury. Thus, Escobedo’s argument that he was convicted by an 

impartial jury fails.2

AFFIRMED.

 

2 We do not reach Escobedo’s ineffective assistance of counsel claims because no COA 

was granted as to those claims. Lackey v. Johnson, 116 F.3d 149, 151–52 (5th Cir. 1997).

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