Fernando Patino v. Rick Thaler, Director , 431 F. App'x 258 ( 2011 )

Case: 10-10352 Document: 00511501979 Page: 1 Date Filed: 06/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 8, 2011
No. 10-10352
Summary Calendar Lyle W. Cayce
Clerk
FERNANDO PATINO,
Petitioner-Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:06-CV-309
Before JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
Fernando Patino, Texas prisoner # 1153575, appeals from the dismissal
of his 28 U.S.C. § 2254 petition challenging his murder conviction. This court
granted a certificate of appealability on the issue whether the district court erred
by dismissing Patino’s claims that prospective jurors James Estes and John
Grimland were biased and should have been excused for cause.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-10352 Document: 00511501979 Page: 2 Date Filed: 06/08/2011
No. 10-10352
A federal court must give deference to a state habeas court’s determination
of the merits of the prisoner’s claims, unless the state decision “was contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” § 2254(d)(1) & (2). We review the district court’s
findings of fact for clear error and issues of law de novo. Propes v. Quarterman,
573 F.3d 225, 227 (5th Cir. 2009), cert. denied, 130 S. Ct. 3272 (2010).
Even if Estes and Grimland were biased, Patino’s constitutional rights
were not violated because he used peremptory challenges to strike both of them
from jury service. SeeUnited States v. Martinez-Salazar, 528 U.S. 304, 307, 311
(2000); United States v. Sanchez-Hernandez, 507 F.3d 826, 830 (5th Cir. 2007).
His arguments that his case falls within the exceptions to Martinez-Salizar are
entirely conclusory. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983). He
fails to show that he is entitled to habeas relief. See § 2254(d)(1) & (2);
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).
AFFIRMED.
2