Lee Vincent v. Brian Williams

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 2, 2019
• Docket: 17-16992
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 2 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LEE ALVIN VINCENT, No. 17-16992

Petitioner-Appellant, D.C. No. 3:10-cv-00181-HDM-VPC v.

BRIAN E. WILLIAMS, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the District of Nevada Howard D. McKibben, Senior District Judge, Presiding

Argued and Submitted April 19, 2019 San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and MÁRQUEZ,** District Judge.

Petitioner Lee Vincent appeals from the denial of his petition for writ of

habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§

1291 and 2253. Because Petitioner filed his petition in 2010, it is governed by the

Antiterrorism and Effective Death Penalty Act of 1996. Killian v. Poole, 282 F.3d

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Rosemary Márquez, United States District Judge for the District of Arizona, sitting by designation. 1204, 1207 (9th Cir. 2002). We review the denial of the petition de novo, see id.,

and we affirm.

1. We review de novo Petitioner’s claim of actual juror bias because it was

not adjudicated on the merits in state court. Pirtle v. Morgan, 313 F.3d 1160, 1167

(9th Cir. 2002); see 28 U.S.C. § 2254(d) (applying AEDPA’s deferential standards

to claims that were “adjudicated on the merits in State court”). Still, “factual

determinations by the state court are presumed correct and can be rebutted only by

clear and convincing evidence.” Pirtle, 313 F.3d at 1168; see 28 U.S.C. §

2254(e)(1).

Petitioner has failed to establish actual juror bias. We owe deference to the

post-conviction court’s finding that the juror in question was not actually biased.

See Patton v. Yount, 467 U.S. 1025, 1036 (1984) (stating that “the partiality of an

individual juror . . . . is plainly [a question] of historical fact”); Lambert v.

Blodgett, 393 F.3d 943, 976 (9th Cir. 2004) (stating that “the presumption of

correctness in new § 2254(e)(1) is restricted to pure questions of historical fact”).

Petitioner has not overcome the presumption of correctness because his argument

rests entirely on the same evidence the state court found unpersuasive. See

Sophanthavong v. Palmateer, 378 F.3d 859, 867 (9th Cir. 2004).

2. We do not consider implied bias, because Petitioner has not “specifically

and distinctly raised and argued” that issue in his opening brief; therefore, he has

2 waived it. Officers for Justice v. Civil Serv. Comm’n of City & Cty. of S.F., 979

F.2d 721, 726 (9th Cir. 1992).

3. Petitioner’s claim of ineffective assistance of trial counsel fails because it

is predicated on his meritless claim of actual juror bias. Baumann v. United States,

692 F.2d 565, 572 (9th Cir. 1982) (“The failure to raise a meritless legal argument

does not constitute ineffective assistance of counsel.”).

We deny Petitioner’s motion for leave to file a supplemental brief (Docket

Entry No. 42).

AFFIRMED.