Sawyer v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-40921 Summary Calendar __________________

THOMAS C. SAWYER,

Petitioner-Appellant,

versus

GARY L. JOHNSON, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. C-94-CV-134 - - - - - - - - - - April 17, 1997 Before KING, JOLLY and DENNIS, Circuit Judges.

PER CURIAM:*

Thomas Sawyer, #579557, appeals from the district court's

denial of his petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254. We have reviewed the record and the briefs and

AFFIRM the district court's grant of summary judgment in favor of

the Respondent and denial of habeas relief. Sawyer’s contention

that the trial court abused its discretion by denying his motion

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-40921 -2-

for a new trial based on newly discovered evidence is not a

ground for relief on federal habeas corpus. See Jacobs v. Scott,

31 F.3d 1319, 1324 (5th Cir. 1994), cert. denied, 115 S Ct. 711

(1995). Sawyer’s jury-misconduct arguments fail because he does

not show that the alleged misconduct prejudiced his right to a

fair trial. See Drew v. Collins, 964 F.2d 411, 415-16 (5th Cir.

1992), cert. denied, 509 U.S. 925 (1993). His contention that

the trial court improperly instructed the jury to continue

deliberating and his challenge to the sufficiency of the evidence

are procedurally barred. See Boyd v. Scott, 45 F.3d 876, 879-80

(5th Cir. 1994), cert. denied, 115 S. Ct. 1964 (1995). The trial

court’s failure to appoint counsel to file a petition for

discretionary review did not violate Sawyer’s right to equal

protection. See Wainright v. Torna, 455 U.S. 586, 587-88 (1982);

Ross v. Moffitt, 417 U.S. 600, 614-15 (1974). Sawyer’s failure

to raise his Batson claim at trial precludes review of this

claim. See Ward v. Whitley, 21 F.3d 1355, 1366 (5th Cir. 1994),

cert. denied, 115 S. Ct. 1257 (1995). Nor was Sawyer was denied

a fundamentally fair trial based upon the prosecutor’s remarks

during closing argument. See Darden v. Wainwright, 477 U.S. 168,

181 (1986). Further, Sawyer is barred from challenging his

sentence enhancement. See Randle v. Scott, 43 F.3d 221, 226 (5th

Cir.), cert. denied, 115 S. Ct. 2259 (1995). Finally, Sawyer’s

complaint that the district court failed to rule on his amended

motion for relief from judgment is moot. No. 95-40921 -3-

Sawyer’s motion for appointment of appellate counsel is

DENIED.