Keith v. Cockrell ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11252
Summary Calendar
JERRY BRYAN KEITH,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:99-CV-107
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January 15, 2003
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Jerry Bryan Keith (Keith), now a Texas state prisoner,
appeals the denial of his 28 U.S.C. § 2254 petition. A
certificate of appealability was granted on the issue of whether
the trial judge was biased.
Keith was indicted in two causes and charged with multiple
counts of sexual misconduct involving juveniles. The causes were
tried separately. After the verdict was rendered in the first
*
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that this opinion should not be published and is not precedent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.
No. 01-11252
-2-
trial, the trial judge had a conversation with jurors. Keith
contends that this conversation indicates that the trial judge
was improperly biased. Thus, Keith argues, when the same trial
judge presided over subsequent trials on the second cause, which
resulted in a jury conviction and sentence, he was deprived of
his constitutional right to a fair trial before an impartial
tribunal. Keith makes no allegation that the jury who convicted
him in his subsequent trial either heard the conversation or was
improperly influenced by the trial judge.
Keith initially argues that his application for writ of
habeas corpus filed in Texas state court was denied without an
adjudication of the merits and thus the deferential standard of
review set forth in 28 U.S.C. § 2254(d) is not applicable to his
appeal. The term “adjudication on the merits” in 28 U.S.C.
§ 2254(d) addresses whether the state court’s disposition of the
claim at issue was procedural or substantive. Neal v. Puckett,
286 F.3d 230, 235 (5th Cir. 2002) (en banc). Nothing in the case
history suggests that the Texas Court of Criminal Appeals was
aware of a procedural bar to considering Keith’s claims. See
Barrientes v. Johnson, 221 F.3d 741, 778-80 (5th Cir. 2000),
cert. dismissed, 531 U.S. 1134 (2001) (setting forth analysis to
determine whether state court adjudication was merits-based).
Additionally, the Texas Court of Criminal Appeals’ language,
“denied without written order,” indicates that the denial was on
the merits. Id. at 779-80; Miller v. Johnson, 200 F.3d 274, 281
No. 01-11252
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(5th Cir.) cert. denied, 531 U.S. 849 (2000). Therefore, the
deferential standard set forth in 28 U.S.C. § 2254(d) is
applicable to Keith’s case.
Not all questions of judicial qualification involve
constitutional validity. Aetna Life Ins. Co. v. Lavoie, 475 U.S.
813, 820 (1986). When analyzing judicial bias in habeas
proceedings, the issue is whether there was an appearance of
impropriety that rose to the level of a fundamental defect
resulting in a complete miscarriage of justice. United States v.
Couch, 896 F.2d 78, 81-82 and n.6 (5th Cir. 1990).
Constitutionally intolerable bias is found only in extreme cases.
Public Citizen Inc. v. Bomer, 274 F.3d 212, 217 (5th Cir. 2002);
see Baran v. Port of Beaumont Navigation, 57 F.3d 436, 444 (5th
Cir. 1995).
Keith’s case is not the extreme type of case where there was
a probability of bias on the part of the trial judge that was so
high that it was constitutionally intolerable. Therefore, the
state-court adjudication denying Keith’s habeas corpus
application was neither contrary to clearly established federal
law as determined by the Supreme Court nor based on an
unreasonable determination of the facts in light of the evidence
presented in the state-court proceedings. See 28 U.S.C.
§ 2254(d); Williams v. Taylor, 529 U.S. 362, 411-12 (2000).
The decision of the district court is AFFIRMED.