# United States Court of Appeals **for the Fifth Circuit**

No. 22-30240

Justin Granier, Petitioner—Appellant ,

versus Tim Hooper, Warden , Louisiana State Penitentiary , Respondent—Appellee

.

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:18-CV-901

Before Clement , Oldham , and Wilson , Circuit Judges

. Per Curiam: * Justin Granier petitions for habeas relief from his state conviction of second-degree murder. But he cannot meet the strictures of the AntiTerrorism and Effective Death Penalty Act.
I. A Louisiana grand jury charged Granier with murdering Luke Villar, a DeLaune’s Supermarket employee, wh ile Villar was cleaning the store

* This opinion is not designated for publication. See 5th Cir. R. 47.5

. United States Court of Appeals Fifth Circuit 

### FILED March 27, 2023 Lyle W. Cayce Clerk Case: 22-30240 Document: 00516690572 Page: 1 Date Filed: 03/27/2023No. 22-30240

2 parking lot. Granier pleaded not guilty. At trial, both sides agreed to empanel Juror Gladys Mobley (“Juror Mobley”) without objection. The Louisiana jury found Granier guilty of second-d egree murder. Granier was sentenced to life imprisonment, without probation, parole, or suspension of sentence. Granier appealed. The Louisiana Court of Appeal affirmed. The Louisiana Supreme Court denied revi ew. Granier did not petition for certiorari. After his conviction became final, Granier filed an application for post-conviction relief in Louisiana stat e court. The trial court denied all claims. The Louisiana Co urt of Appeal and Louisi ana Supreme Court denied his writ applications. Granier filed a second petition for p ost-conviction relief in state court, raising his claim of juror bias for the fi rst time. Specifically, he argued that Juror Mobley knew and failed to disclose during voir dire that her son, Sam Mobley, was interviewed as part of the murder investigation. The trial court ordered an evidentiary hearing. Upon learning that Juror Mobley died before the hearing, Granier filed a motion to submit an investigator’s hearsay affidavit. The trial court admitted the hearsay evidence. The Louisiana Court of Ap peal reversed, and the Louisiana Supreme Court denied Granier’s writ application. On remand, the trial court conduc ted an evidentiary hearing. Sam Mobley and Granier’s trial counsel, Wa de Petite, testified. Upon Granier’s motion, the trial court ordered the Stat e to disclose any information related to the search of Sam Mobley’s residenc e. The State produced Sam Mobley’s application for employment at DeLaune’s Supermarket as well as detective notes documenting Sam Mobley’s interview, Juror Mobley’s relationship to Sam, and Juror Mobl ey’s address. Case: 22-30240 Document: 00516690572 Page: 2 Date Filed: 03/27/2023No. 22-30240

3 Granier then filed a supplemen tal memorandum, adding a Fifth Amendment prosecutorial misconduct claim for failure to disclose Juror Mobley’s connection to the case. The Stat e filed multiple motions to dismiss. The trial court rejected all the Stat e’s motions. The Louisiana Supreme Court reversed. It stated:Defendant’s complaint regarding the seating of the nowdeceased juror fails to allege a claim which, if established, would entitle him to relie f. La.C.Cr.P. art 928. See also Burton v. Johnson , 948 F.2d 1150, 1156 (10th Cir. 1991) (“A party who seeks a new trial because of non- disclosure by a juror during voir dire must show actual bias , either by express admission or proof of specific facts showing a close connection to the circumstances at hand that bias must be presumed.”). In addition, defendant has failed to show the state withheld material exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
ROA.4176. Subsequently, Granier filed a petiti on for federal habeas review under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254. The magistrate judge conclude d that, absent factual findings on whether Granier could prove his allega tions, the Louisiana Supreme Court’s decision was “contrary to clearly es tablished federal law.” ROA.1010. The magistrate judge therefore ordered a fe deral evidentiary hearing. After the hearing, however, the magistrate judge agreed with the State and recommended the court deny the claims on the merits. The district court agreed but granted Granier a certif icate of appealability (“COA”) on his juror bias and prosecutorial misconduct claims.
II. Our review is highly deferentia l to the state court’s decision. AEDPA’s relitigation bar applies to bo th of Granier’s claims because the Case: 22-30240 Document: 00516690572 Page: 3 Date Filed: 03/27/2023No. 22-30240

4 state courts adjudicated them on the merits. See 28 U.S.C. § 2254(d). Under the relitigation bar, we are authorized to grant habeas relief only if there “is no possibility fairminded jurists could di sagree that the stat e court’s decision conflicts with [the United Stat es Supreme] Court’s precedents.” Harrington v. Richter , 562 U.S. 86, 102 (2011). We can on ly review the state court record in this case. See 28 U.S.C. § 2254(d)(2); Shoop v. Twyford , 142 S. Ct. 2037, 2043 (2022); Cullen v. Pinholster , 563 U.S. 170, 181 (2011). These standards doom Granier’s claims for both (A) juror bias and (B) prosecutorial misconduct.
A. We first address Granier’s juror bias claim. The Sixth Amendment guarantees the right to an impartial jury. See U.S. Const . amend. VI; Skilling v. United States , 561 U.S. 358, 377 (2010). “On federal habeas review, state court findings concerning a juror’s impartiality are factual determinations entitled to a presumption of correctness.” Buckner v. Davis , 945 F.3d 906, 910 (5th Cir. 2019); see also Patton v. Yount , 467 U.S. 1025, 1036 (1984) (finding that a question of juror bi as “is plainly one of historical fact”); Skilling , 561 U.S. at 386 (emphasizing, on direct review of a federal conviction and hence withou t the added strictures of AEDPA, that reviewing courts must resist “second-guessing th e trial judge’s estimation of a juror’s impartiality”). To bring a claim of bias, Granier “must first demonstr ate that a juror failed to answer honestly a material question on voir dire , and then further show that a correct response would have provided a valid ba sis for a challenge for cause.” McDonough Power Equip., Inc. v. Greenwood , 464 U.S. 548, 556 (1984). Granier must first point to a clea r voir dire question that Juror Mobley failed to answer truthfully. See Hatten v. Quarterman , 570 F.3d 595, 602 (5th Cir. 2009). Then Granier must show that Juror Mobley lied. See id. Case: 22-30240 Document: 00516690572 Page: 4 Date Filed: 03/27/2023No. 22-30240

5 Specifically, Granier must show that—o n the record before the state court— Juror Mobley knew about her son’s connection to the case and lied, not merely that she provided an inac curate or incomplete answer. See id

. Allegations based on “subjective,” “v ague and ambiguous” questions are insufficient. Id . Then of course, even assuming he could show that Juror Mobley was unconstitutionally biased, Granier would also have to show that the Louisiana state court’s contrary determination was not only wrong but

was so wrong that it contravened AEDPA’s relitigation bar. See 28 U.S.C. § 2254(d).
Granier cannot come close to meetin g these standards. He does not identify any voir dire question that Juror Mobley failed to answer honestly. Nor can he state a claim—much le ss overcome the relitigation bar—by arguing that Juror Mobley failed to disclose her knowledge. The record before the state court—which is all that matters for the relitigation bar, see 28 U.S.C. § 2254(d)(2)—contained only Sam Mobley’s testimony, Wade Petite’s testimony, and the police note s. Taken together, they don’t prove that Juror Mobley failed to disclose anything. Granier also argues that we should imply Juror Mobley’s bias. This implied-bias claim faces two insurm ountable hurdles. First, Granier concedes that he cannot meet the McDonough Power Equipment framework. And second, it’s impossible for Granier to show that the state court contravened “clearly established Federa l law, as determined by the Supreme Court of the United States” if he cannot point to a relevant holding from the Supreme Court. 28 U.S.C. § 2254(d)(1); see also Terry Williams v. Taylor , 529 U.S. 362, 412 (2000) (holding that “clearly established Federal law” in § 2254(d)(1) “refers to the holdings , as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision” (emphasis added)); Carey v. Musladin , 549 U.S. 70, 74 (2006) (same). But Granier can point to no such holding. The best he can muster is Justice O’Connor’s Case: 22-30240 Document: 00516690572 Page: 5 Date Filed: 03/27/2023No. 22-30240

6 concurrence in Smith v. Phillips , 455 U.S. 209 (1982), and Justice Brennan’s concurrence in McDonough Power Equipment . But concurrences do not create clearly established law. See Terry Williams , 529 U.S. at 412. Accordingly, we cannot rely on these authorities, and Granier’s bias claims fail.
B. Granier also brings a claim of pros ecutorial misconduct, alleging that the State violated his Fifth Amendment ri ght to due process when it withheld information about Juror Mobley and faile d to correct her during voir dire. The success of this claim depends on hi s juror bias claim. Because his juror bias claim fails, his prosecutoria l misconduct one does too.
III

. Finally, even if Granier could satisfy AEDPA’s rigid threshold requirements, he still cannot show that “l aw and justice require” his release. 28 U.S.C. § 2243. That’s be cause “law and justice do not compel issuance of the writ in the absence of factua l innocence,” and Granier has never claimed to be factually innocent. Crawford v. Cain , 55 F.4th 981, 993–94 (5th Cir. 2022).
AFFIRMED

. Case: 22-30240 Document: 00516690572 Page: 6 Date Filed: 03/27/2023