Steve Romero v. Mike McDonald

FILED
NOT FOR PUBLICATION
AUG 15 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE ROMERO, No. 18-55929
Petitioner-Appellant, D.C. No.
5:10-cv-00462-SVW-SP
v.
MIKE D. MCDONALD, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted August 13, 2019**
Pasadena, California
Before: SCHROEDER and GRABER, Circuit Judges, and M. WATSON,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Michael H. Watson, United States District Judge for
the Southern District of Ohio, sitting by designation.
Petitioner Steve Romero, a California prisoner, appeals the denial of his
petition for habeas corpus. Romero claims ineffective assistance of counsel
because his trial counsel failed to challenge Juror No. 7, who had said during voir
dire that he could not be fair and impartial. In an earlier appeal, we remanded for a
possible evidentiary hearing on the claim.
On remand, the district court ruled that no evidentiary hearing was
warranted because counsel had stated at trial that there was a tactical reason for
retaining the juror and no additional evidence or information was now available:
There was no record of the sidebar conversation in which the court and counsel
discussed Juror No. 7, and neither counsel could presently recall the conversation.
Because the record has not changed on remand, Romero has not met his
burden to establish that counsel’s decision to retain the juror was professionally
incompetent. See Strickland v. Washington, 466 U.S. 668, 689 (1984). Romero’s
claim therefore fails under the first prong of Strickland’s test for ineffective
assistance of counsel. The district court correctly denied the petition.
AFFIRMED.
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