Bernard Edward Brown v. Department of Corrections ( 2009 )


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  •                                                         [DO NOT PUBLISH]
    
    
                IN THE UNITED STATES COURT OF APPEALS
    
                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                                No. 08-15266                ELEVENTH CIRCUIT
                                                               OCTOBER 7, 2009
                            Non-Argument Calendar
                                                             THOMAS K. KAHN
                          ________________________
                                                                  CLERK
    
                      D. C. Docket No. 07-23146-CV-PCH
    
    
    BERNARD EDWARD BROWN,
    
                                                             Petitioner-Appellant,
    
                                     versus
    
    DEPARTMENT OF CORRECTIONS,
    Walter A. McNeil,
    
                                                           Respondent-Appellee.
    
    
                          ________________________
    
                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________
    
                                (October 7, 2009)
    
    Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
    PER CURIAM:
    
           Petitioner-Appellant Bernard Brown appeals the district court’s denial of his
    
    section 2254 petition. A state jury convicted Brown for attempted first degree
    
    murder with a firearm, carrying a concealed firearm, and violating an injunction
    
    against domestic violence. No reversible error has been shown; we affirm.
    
           Brown challenges the state trial court’s refusal to strike a juror for bias. The
    
    district court concluded that the decision was within the discretion of the state trial
    
    court, and the exercise of that discretion did not violate Brown’s Sixth Amendment
    
    right to trial by an impartial jury.
    
           In a denial of a habeas petition under 28 U.S.C. § 2254, this court reviews a
    
    district court’s conclusions of law, as well as mixed findings of law and fact, de
    
    novo. We review findings of fact for clear error. Nyland v. Moore, 
    216 F.3d 1264
    ,
    
    1266 (11th Cir. 2000).
    
           The district court, in adopting the recommendation of the magistrate, applied
    
    the deferential standard required by the Antiterrorism and Effective Death Penalty
    
    Act of 1996 (“AEDPA”). All state factual findings are “presumed to be correct.
    
    The applicant shall have the burden of rebutting the presumption of correctness by
    
    clear and convincing evidence.” 28 U.S.C. § 2254 (e)(1). A federal court may not
    
    
    
    
                                               2
    grant a writ of habeas corpus on a claim that was adjudicated on the merits in a
    
    state court unless the claim “(1) resulted in a decision that was contrary to, or
    
    involved an unreasonable application of, clearly established Federal law, as
    
    determined by the Supreme Court of the United States; or (2) resulted in a decision
    
    that was based on an unreasonable determination of the facts in light of the
    
    evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d).
    
           The Constitution guarantees all criminal defendants an impartial jury.
    
    Morgan v. Illinois, 
    112 S. Ct. 2222
    , 2228 (1992). In determining whether a juror is
    
    impartial, “[i]t is sufficient if the juror can lay aside his impression or opinion and
    
    render a verdict based on the evidence presented in court.” Irwin v. Dowd, 81 S.
    
    Ct. 1639, 1643 (1961).1 This is basically the issue: “did a juror swear that he could
    
    set aside any opinion he might hold and decide the case on the evidence, and
    
    should the juror’s protestation of impartiality have been believed[?]” Patton v.
    
    Yount, 
    104 S. Ct. 2885
    , 2891 (1984).
    
           Brown asserts that Juror Merced was not impartial and that this bias
    
    rendered his conviction unconstitutional. Brown’s only evidence is Juror Merced’s
    
    answer to an improper question during voir dire. The prosecutor asked, “do you
    
    
    
           1
            Brown believes that state law requires a finding of bias. Under ADEPA, we are unable
    to evaluate any state law claims, and so we do not reach the merits of this argument.
    
                                                  3
    think that whatever involvement you had in the context of your life, do you think
    
    that you’ll be able to put that aside and listen to the evidence in this case or do you
    
    think that will affect you as you listen to the evidence, so it may impact your
    
    ability to make a decision in this case?”
    
           Juror Merced answered, “I think I could, but I can’t give you a direct
    
    answer.” 2
    
           The trial judge asked the question in a more appropriate manner,
    
    specifically: “the question is can you be fair and impartial. . . . Can you listen to the
    
    evidence, sir? Can you listen to the evidence and put aside all of that experience
    
    and when you go back in there you can be fair and impartial to both sides?” Juror
    
    Merced responded affirmatively. The trial judge accepted his answer.
    
           The state trial court made a determination of fact: Juror Merced could be
    
    impartial. Brown presents no evidence to contest this finding. We review the
    
    factual finding under the presumption that it is correct, and we see no reason to
    
    overturn that presumption. The constitutional requirement for an impartial jury
    
    requires no more.
    
           AFFIRMED.
    
    
    
           2
           This line of questioning was pertinent because Juror Merced’s mother had been a victim
    of domestic abuse.
    
                                                  4
    

Document Info

DocketNumber: 08-15266

Filed Date: 10/7/2009

Precedential Status: Non-Precedential

Modified Date: 12/21/2014