Johnson v. Luoma

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0412p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Petitioner-Appellant, -
BENNY JOHNSON, JR.,
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No. 04-1518
v.
,
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TIM LUOMA, Warden, -
Respondent-Appellee. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 03-71780—Victoria A. Roberts, District Judge.
Argued and Submitted: September 14, 2005
Decided and Filed: October 12, 2005
Before: GUY, BATCHELDER, and GILMAN, Circuit Judges.
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COUNSEL
ARGUED: Christopher J. Pagan, REPPER, POWERS & PAGAN, Middletown, Ohio, for
Appellant. ON BRIEF: Christopher J. Pagan, REPPER, POWERS & PAGAN, Middletown, Ohio,
for Appellant. William C. Campbell, OFFICE OF THE ATTORNEY GENERAL, HABEAS
CORPUS DIVISION, Lansing, Michigan, for Appellee.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. In April of 1998, Benny Johnson Jr. was tried in
a Michigan state court for first-degree sexual assault, felonious assault, domestic violence, and two
counts of kidnapping. The jury convicted him on the domestic violence and kidnapping counts, but
acquitted him of the sexual-assault and felonious-assault charges. He was sentenced to concurrent
prison terms of 10 to 30 years for each of the kidnapping convictions and 93 days for the domestic
violence conviction. After the verdict, Johnson learned that a member of the jury was a complaining
witness in a domestic violence case that was pending during Johnson’s trial. Johnson’s motion for
a new trial based on juror bias and ineffective assistance of counsel was denied. His conviction was
subsequently affirmed by the Michigan Court of Appeals, and the Michigan Supreme Court denied
him leave to appeal.
Johnson then filed a petition in federal court for habeas corpus relief pursuant to 18 U.S.C.
§ 2254, claiming juror bias and the ineffective assistance of counsel. The district court denied his
1
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petition, but granted a Certificate of Appealability on the two issues raised by Johnson. For the
reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
A. Factual background
The incident for which Johnson was tried involved the kidnapping of and assault on his
former girlfriend, Keesha Groves. In September of 1997, Groves visited Johnson’s mother, who
had agreed to babysit Groves’s three-year-old son. Johnson and his mother had just been in a big
argument. His mother told Groves about this altercation and suggested that Groves “take [him]
somewhere for a little while to cool off.” People v. Johnson, 631 N.W.2d 1, 4 (Mich. Ct. App.
2001).
After Groves and Johnson ran some errands and had dinner, Groves drove back to the home
of Johnson’s mother. Instead of leaving the car when they arrived, however, Johnson began to
badger Groves about their relationship and about Groves’s recent purchase of a new home. Johnson
then grabbed the car keys and, when Groves left to call her brother for a ride home, Johnson
threatened to kill her brother. Id.
When Groves attempted to walk away, Johnson “shoved her, blocked her way, and
threatened her with a stick.” Id. Groves then went into the house to make a telephone call, but left
because she feared that Johnson would strike his mother. Johnson caught up with her when she tried
to run away. After Johnson threatened to kill Groves if she did not return to the car, she and her son
got in. Johnson first drove to a gas station and then to a party store to buy some beer. With Groves
still in the car, Johnson drank the beer in his mother’s driveway. He offered to return Groves’s car
keys if she had sex with him. Although she did so, Johnson still did not return the keys. Id.
Johnson then drove Groves and her son to Groves’s new house, where the three slept on the
floor. In order to prevent Groves from escaping, Johnson physically restrained Groves’s son.
Groves drove Johnson to work the following morning at Johnson’s insistence. A police officer
pulled the vehicle over for a traffic violation, but Groves did not alert the officer to her situation.
When they arrived at Johnson’s place of employment, Johnson requested the day off and got back
into the car. Id.
The two of them continued to drive around, with Johnson thwarting Groves’s attempt to get
help from a truck driver by holding Groves’s son hostage and then attempting to choke her. Id. at
4-5. Finally, Groves talked Johnson into taking her back to his mother’s house. Although Johnson
told Groves to lie to the police about what had happened, Groves promptly went to the police station
and reported the incident. Id.
B. Procedural background
Johnson was charged with one count of first-degree criminal sexual conduct in violation of
Mich. Stat. Ann. § 28.788(2)(1)(f), one count of felonious assault in violation of Mich. Stat. Ann.
§ 28.277, two counts of kidnapping in violation of Mich. Stat. Ann. § 28.581, and one count of
domestic violence in violation of Mich. Stat. Ann. § 28.276(2). Johnson, 631 N.W.2d at 5.
During the questioning of potential jurors, which was conducted in April of 1998, the trial
judge asked them: “Are there any among you who have been previously a victim of a crime?” Id.
at 6. Juror 457 said that she “ha[d] been assaulted,” but did not elaborate. Id. When the district
court then asked whether that experience “would . . . interfere with your ability to listen to the facts
of this case and decide this case from the evidence here,” the juror answered “[n]o, I can keep it
separate.” Id.
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Johnson’s counsel later asked whether any of the potential jurors had been threatened with
a weapon. Id. Juror 457 revealed that “she had been hit in the head with a gun as a teenager but
could disregard the experience.” Id. But she failed to disclose a domestic violence charge that she
had filed in a Michigan state court claiming that she was assaulted with a gun in November of 1997,
approximately five months before the voir dire. She was then 38 years old according to an
application for a personal-protection order that she had filed approximately one year prior to the voir
dire.
Juror 457 did not respond to several more general questions put to the panel of potential
jurors. These questions included the trial court’s inquiry as to whether there was any reason that the
jurors should not serve in the case, the prosecutor’s question as to whether any of the jurors would
have difficulty sitting on a jury in a felonious-assault and domestic violence case, and the defense
counsel’s questions about whether the potential jurors had anything “weighing on their minds” that
would prevent the jurors’ full attention or whether they would want themselves as a juror if they
were the one on trial. Id.
Although the jury acquitted Johnson on the criminal-sexual-conduct and felonious-assault
charges, Johnson was convicted on both counts of kidnapping and on one count of domestic
violence. Id. at 5. Johnson subsequently learned that, at the time of his trial, Juror 457 was the
complaining witness in a domestic violence case that was currently being prosecuted by the same
prosecutor’s office. Id. at 6. The state trial court denied Johnson’s motion for a new trial, noting
that although Juror 457 had disclosed that she had been a victim of an assault in the past, she had
said that she would be able to judge the case fairly. Id. at 6-7.
On appeal, the judgment was affirmed by the Michigan Court of Appeals, which concluded
that Juror 457 had not concealed information during voir dire. Id. at 7. Likewise, the Court of
Appeals rejected Johnson’s ineffective-assistance-of-counsel claim, stating that there was no
reasonable probability that the outcome of the trial would have been any different even if Johnson’s
attorney had inquired further about Juror 457’s domestic violence experiences. Id. at 11. The
Michigan Supreme Court, with two justices dissenting, denied Johnson leave to appeal. People v.
Johnson, 654 N.W.2d 321 (Mich. 2002).
Johnson then brought a petition for a writ of habeas corpus in the United States District Court
for the Eastern District of Michigan. With the court’s permission, Johnson introduced new evidence
showing that Juror 457 had been the complaining witness in four other domestic violence cases in
the two-and-a-half years before the voir dire was conducted. Juror 457’s assailant, who was the
same in all five cases, was charged with domestic violence against Juror 457 in January of 1996,
domestic violence in March of 1997, felonious assault in November of 1997, domestic violence in
December of 1997, and both felonious assault and domestic violence in January of 1998. He was
convicted in every case except the first.
Although the district court admitted evidence of the four additional charges, its opinion did
not discuss any evidence beyond what Johnson had submitted in his motion for a new trial before
the state trial court. The district court reasoned that Juror 457 had not concealed her experiences
because she “was never specifically asked whether she had been the victim of a domestic assault,”
and concluded that Johnson had failed to show actual bias. Juror 457’s failure to disclose her
experience of being threatened with a gun in November of 1997 was not explicitly addressed in the
district court’s opinion. In ruling on Johnson’s ineffective-assistance-of-counsel claim, the district
court concluded that the failure of his counsel to further inquire about Juror 457’s experiences did
not constitute ineffective assistance. The district court therefore denied Johnson’s petition for a writ
of habeas corpus. It did, however, grant a Certificate of Appealability on the issues of juror bias and
ineffective assistance of counsel. Johnson’s timely appeal followed.
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II. ANALYSIS
A. Standard of review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court
may not grant a writ of habeas to a petitioner in state custody with respect to any
claim adjudicated on the merits in state court unless (1) the state court’s decision
“was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court” . . . or (2) “the state court’s
decision was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.”
Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (quoting 28 U.S.C. § 2254 (d)). This standard
generally requires that federal courts defer to state-court decisions. Herbert v. Billy, 160 F.3d 1131,
1135 (6th Cir. 1998) (“[AEDPA] tells federal courts: Hands off, unless the judgment in place is
based on an error grave enough to be called unreasonable.”) (citation and quotation marks omitted).
The first line of analysis under AEDPA involves the consistency of the state-court decision
with existing federal law. A state-court decision is considered “contrary to . . . clearly established
Federal law” if it is “diametrically different, opposite in character or nature, or mutually opposed.”
Williams v. Taylor, 529 U.S. 362, 405 (2000). Alternatively, to be found an “unreasonable
application of . . . clearly established Federal law,” the state-court decision must be “objectively
unreasonable” and not simply erroneous or incorrect. Id. at 409-11.
The second line of analysis under AEDPA concerns findings of fact made by the state courts.
AEDPA requires considerable deference to such factual determinations. “A federal court is to apply
a presumption of correctness to state court findings of fact for habeas corpus purposes unless clear
and convincing evidence is offered to rebut this presumption. The appeals court gives complete
deference to the federal district court’s and state court’s findings of fact supported by the evidence.”
McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir. 2004) (citations omitted).
Although Johnson cites authority in support of the proposition that no deference is due where
new evidence is presented on federal habeas review, the decisions relied upon involve the failure
of a prosecutor to disclose exculpatory evidence under Brady, not new evidence of alleged juror
bias. See Killian v. Poole, 282 F.3d 1204, 1207-08 (9th Cir. 2002); Monroe v. Angelone, 323 F.3d
286, 297 (4th Cir. 2003). Johnson has not set forth any authority to support the conclusion that such
a rule exists in this circuit even with respect to new Brady material, much less with regard to juror
bias. We therefore conclude that the traditional rule of deference discussed in McAdoo is
appropriate in this case. See McAdoo, 365 F.3d at 493-94.
B. Johnson’s claim of juror bias
1. Factual findings of the Michigan courts
Based on the record that existed at the time, the Michigan trial court and the Michigan Court
of Appeals found that Juror 457 gave honest answers at voir dire and did not conceal or misrepresent
any information sought during that portion of the trial. Johnson, 631 N.W.2d at 7. The Michigan
Court of Appeals acknowledged Juror 457’s voir dire responses that she “ha[d] been assaulted” and
that “someone had hit her on the head with a gun when she was a teenager.” Id. Johnson’s
revelation in his motion for a new trial that Juror 457 was the complaining witness in a currently
pending domestic violence prosecution, id. at 6, did not cause the state courts to change their
findings.
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During habeas review before the district court, Johnson succeeded in introducing new
evidence via a motion to expand the record. This evidence consisted of records of charges,
proceedings, and convictions for five separate domestic violence incidents involving Juror 457 as
the complaining witness, including the pending prosecution of which Johnson and the Michigan
Court of Appeals were already aware (because Johnson had raised the matter in his state-court
motion for a new trial).
The additional evidence does not refute the fact that, when asked about her previous
experience as a crime victim, Juror 457 truthfully answered that she had been assaulted. This
response does not imply that there was only one assault, nor is it misleading as to the particular
nature of the assaults (the assaults on Juror 457 were domestic in nature). The response also implies
no time frame for the assaults, so the fact that one of the incidents was currently being prosecuted
does not contradict the truthfulness of Juror 457’s answer.
Further, there is no evidence that Juror 457 deliberately lied or concealed information when
she responded to defense counsel’s question about being threatened with a weapon when she said
that “she had been hit in the head with a gun as a teenager but could disregard the experience.” The
record reflects, however, that Juror 457 was the victim of a felonious assault in November of 1997,
only five months prior to voir dire. This incident resulted in the assailant being accused of
assaulting Juror 457 with a hand gun without intent to murder or to inflict great bodily harm. Id.
Nothing in the record indicates that Juror 457 was hit in the head with a hand gun at that time
(contrary to Johnson’s assertion in his pleadings).
These facts do not establish that Juror 457 lied or concealed information in response to
defense counsel’s question. Johnson failed to show that Juror 457 was not in fact hit in the head
with a gun when she was a teenager. And as to the much more recent assault with a hand gun,
Johnson presented no proof to show that Juror 457 deliberately concealed the incident as opposed
to simply having overlooked it. Particularly telling is that Johnson presented no affidavit from Juror
457 that explains her voir dire responses.
Likewise, the record does not show that Juror 457 lied or concealed information when she
failed to respond to the more general questions put to the panel of potential jurors by the trial court,
the prosecutor, and the defense counsel. The particular questions cited by Johnson are so indefinite
and call for such subjective responses that Juror 457’s silence cannot fairly be said to be false or
misleading. Although Johnson argues that these questions were “obviously designed to evoke a
response from a person with her background,” he fails to set forth clear and convincing evidence that
Juror 457’s lack of response amounted to concealment.
In sum, Johnson has been unable to rebut the presumption that the findings of the Michigan
courts were correct. The findings are supported by the evidence and must be given deference under
AEDPA. See McAdoo, 365 F.3d at 493-94.
2. Consistency of the Michigan decisions with federal law
In addition to evaluating the findings of fact made by the Michigan courts, Johnson’s habeas
petition requires an analysis of the consistency of the Michigan court decisions with existing federal
law. The standard governing whether a defendant is entitled to a new trial based on juror responses
to voir dire questions is set forth in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548
(1984). McDonough held that in order to obtain a new trial on the basis of a juror’s inaccurate
response, “a party must first demonstrate 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 basis for a
challenge for cause.” McDonough, 464 U.S. at 556.
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With regard to McDonough’s first prong, the Michigan courts determined that Juror 457
honestly answered all questions posed during voir dire. Johnson has not demonstrated that Juror 457
deliberately lied or concealed information, and thus has not shown that the state-court decision was
contrary to or involved an unreasonable application of clearly established federal law as determined
by the Supreme Court.
Regarding McDonough’s second prong, a juror is subject to a valid challenge for cause based
on actual bias and, in certain limited circumstances, implied bias. See United States v. Torres, 128
F.3d 38, 43, 49 (2d Cir. 1997) (discussing actual bias and implied bias standards, and upholding the
trial judge’s decision to strike a potential juror based on bias inferred from the similarity between
the juror’s previous structuring of financial transactions and the defendant’s conduct that allegedly
violated federal money laundering laws). Actual bias is “bias in fact” and focuses on the record at
voir dire. Id. at 43. Johnson does not argue that Juror 457 was actually biased; he instead argues
that bias should be implied.
“The doctrine of presumed or implied, as opposed to actual, bias provides that, in certain
‘extreme’ or ‘exceptional’ cases, courts should employ a conclusive presumption that a juror is
biased.” United States v. Frost, 125 F.3d 346, 379 (6th Cir. 1997) (citations omitted). A finding
of implied bias is appropriate only “where the relationship between a prospective juror and some
aspect of the litigation is such that it is highly unlikely that the average person could remain
impartial in his deliberations under the circumstances.” Person v. Miller, 854 F.2d 656, 664 (4th
Cir. 1988) (rejecting a white supremacist group’s claim of implied bias on the part of all potential
black jurors in a criminal contempt proceeding to enforce an injunction against the operation of a
paramilitary organization). Examples given in a concurring opinion by Justice O’Connor illustrate
the extreme situations that might result in implied bias. They are “that the juror is an actual
employee of the prosecuting agency, that the juror is a close relative of one of the participants in the
trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal
transaction.” Smith v. Phillips, 455 U.S. 209, 222 (1982) (O’Connor, J., concurring).
Johnson’s reliance on the implied-bias doctrine fails for two reasons. First, the implied-bias
doctrine may not even be viable after Smith. Courts that have reviewed the Smith decision,
including this circuit, have suggested that the majority’s treatment of the issue of implied juror bias
calls into question the continued vitality of the doctrine. See, e.g., United States v. Herndon, No.
99-5642, 2000 WL 1290378, at *4 (6th Cir. Sept. 6, 2000) (unpublished) (“The [Smith] majority
does not specifically say, one way or the other, whether there are any situations in which they would
presume prejudice. Such a remedy, if it still exists, would presumably be limited to the type of
extreme situations identified by Justice O’Connor in her . . . concurrence.”); Conner v. Polk, 407
F.3d 198, 206 n.4 (4th Cir. 2005) (discussing the Smith majority’s failure to adopt the implied-bias
rationale and Justice O’Connor’s concurring opinion, and concluding that “[t]here may be some
question as to whether implied bias remains a viable doctrine following the Supreme Court’s
majority opinion in Smith”).
Second, even if we assume that the implied-bias doctrine is still viable, Johnson has failed
to show that this is one of the “extreme” or “exceptional” cases that merit such a finding. See Frost,
125 F.3d at 379. Juror 457’s circumstances are simply not comparable to the examples provided by
Justice O’Connor, especially in light of the juror’s unqualified statement that she could keep her
experiences separate.
Nor are the two cases relied upon by Johnson comparable to the circumstances here. One
is Dyer v. Calderon, 151 F.3d 970, 979-84 (9th Cir. 1998) (en banc), in which the court held that
a finding of implied bias was proper where a juror “lies materially and repeatedly” during voir dire
and to the trial judge in chambers. The court stated that “the magnitude of [the juror]’s lies and her
No. 04-1518 Johnson v. Luoma Page 7
remarkable display of insouciance—her expressed feeling that only she would decide what
matters—fatally undermine our confidence in her ability to fairly decide Dyer’s fate.” Id. at 984.
In the second case cited by Johnson, United States v. Eubanks, 591 F.2d 513, 516 (9th Cir.
1977) (per curiam), the defendant was being prosecuted for a conspiracy to distribute heroin and for
possession of heroin with the intent to distribute. The juror in question had two sons serving long
prison terms for murder and robbery, perpetrated in furtherance of their heroin habit. Id. In the
juror-qualification form, the juror lied and said that he had no children. Id. The juror also failed to
respond to the trial judge’s question about whether the jurors or “members of [their] immediate
families [had] ever been personally interested in the defense of a criminal case or a witness for the
defense in a criminal case.” Id. The Ninth Circuit found that the heroin involvement of the juror’s
sons “bar[red] the inference that [the juror] served as an impartial juror,” Id. at 517, essentially
implying juror bias.
Dyer and Eubanks are easily distinguishable from the case before us, however, because the
jurors at issue in those cases lied extensively to get on the jury. In Dyer, the court stated that “[t]he
individual who lies in order to improve his chances of serving has too much of a stake in the matter
to be considered indifferent. . . . [T]his excess of zeal introduces the kind of unpredictable factor
into the jury room that the doctrine of implied bias is meant to keep out.” Dyer, 151 F.3d at 982.
Johnson has failed to show that the doctrine of implied bias is applicable to his case. Juror
457’s responses were simply not so far off the mark as to show that this is an extreme or exceptional
case to which the implied-bias doctrine is meant to apply. See Frost, 125 F.3d at 379; Smith v.
Phillips, 455 U.S. at 222 (O’Connor, J., concurring). Consequently, Johnson has not demonstrated
that the responses he contends were not forthcoming would have subjected Juror 457 to a valid
challenge for cause, and thus has not shown that the state-court decision was contrary to or involved
an unreasonable application of clearly established federal law as determined by the Supreme Court.
C. Johnson’s ineffective-assistance-of-counsel claim
In order to prevail on a claim of ineffective assistance of counsel, Johnson must show that
(1) his counsel performed deficiently, and (2) his counsel’s deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687 (1984) “[A] court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Id. at 689 (citation omitted). In order to show
prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
In Johnson’s direct appeal of his convictions, he argued that he had been deprived of the
effective assistance of counsel. The Michigan Court of Appeals applied the Strickland standard and
found that counsel’s voir dire decisions were based on valid strategic choices. Johnson, 631 N.W.2d
at 11. It also concluded that there was no reasonable probability that a challenge to Juror 457 would
have resulted in the outcome of the case being any different. Id.
Johnson again presents his ineffective-assistance-of-counsel claim as an alternative ground
for relief in this habeas action. Applying the AEDPA standard for habeas review, we hold that the
state court’s decision was a reasonable application of the Strickland standard. Juror 457 repeatedly
assured the trial court that she could be impartial. Based on those assurances, the state court could
reasonably conclude that defense counsel’s decision to not inquire further into Juror 457’s
background was a strategic choice thought to be beneficial to his client.
No. 04-1518 Johnson v. Luoma Page 8
The state-court decision that Johnson was not prejudiced by his attorney’s failure to further
inquire was likewise reasonable. In order to show prejudice arising out of his attorney’s failure to
strike a biased juror, Johnson must show that Juror 457 was actually biased against him. Hughes
v. United States, 258 F.3d 453, 458 (6th Cir. 2001) (“Petitioner’s claim of ineffective assistance of
counsel is grounded in the claim that counsel failed to strike a biased juror. To maintain a claim that
a biased juror prejudiced him, however, [Petitioner] must show that the juror was actually biased
against him.”) (quotation marks omitted). But see United States v. Frost, 125 F.3d 346, 379 (6th Cir.
1997 (discussing the doctrine of implied juror bias in the context of a direct appeal from a mail fraud
conviction).
The Michigan trial court accepted Juror 457’s assurances that she could be impartial. Based
on these assurances, the Michigan Court of Appeals found “no reasonable probability that the
outcome of the case would have been different.” Johnson, 631 N.W.2d at 11. Johnson failed to
present any evidence of Juror 457’s actual bias, instead relying on the doctrine of implied bias in this
habeas action. But because the factual circumstances here do not justify a finding of implied bias,
we need not decide whether such a showing would be legally sufficient to establish a Strickland
violation. Compare Hughes, 258 F.3d at 458, with Frost, 125 F.3d at 379. Johnson, in sum, has
failed to show that the state-court decision holding that he was not deprived of his Sixth Amendment
right to the effective assistance of counsel was contrary to, or involved an unreasonable application
of, clearly established federal law as determined by the Supreme Court.
III. CONCLUSION
For all the reasons set forth above, we AFFIRM the judgment of the district court.