Lee v. Cockrell ( 2002 )


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  •                  IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 01-50834
    Summary Calendar
    LUKE LEE, JR.,
    Petitioner-Appellant-Cross-Appellee,
    versus
    JANIE COCKRELL, DIRECTOR,
    TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
    INSTITUTIONAL DIVISION,
    Respondent-Appellee-Cross Appellant.
    --------------------
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. A-99-CV-692-JN
    --------------------
    June 11, 2002
    Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Luke Lee, Jr., appeals the district court’s denial of his 
    28 U.S.C. § 2254
     habeas corpus petition.    Lee argues that the
    district court erred in refusing to consider the affidavits of
    two jurors and in determining that the state court did not
    unreasonably apply federal law in rejecting his claim of
    ineffective assistance of counsel.    The respondent also appeals,
    *
    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    that this opinion should not be published and is not precedent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. 01-50834
    -2-
    arguing that the district court erred in holding that Lee’s
    petition was timely filed.
    It is unclear whether Lee’s 
    28 U.S.C. § 2254
     petition was
    timely filed, as we have not addressed this specific finality
    issue in a published opinion.    However, even if we assume without
    deciding that Lee’s § 2254 petition was timely filed, then Lee
    still has not shown that he should receive relief.
    Lee contends that the district court erred in refusing to
    consider affidavits from two jurors because these affidavits were
    considered by the state trial court.    The statements contained in
    the disputed affidavits fall squarely within the class of
    testimony forbidden by FED. R. EVID. 606(b).   The district court
    thus did not abuse its discretion in refusing to consider them.
    See Williams v. Collins, 
    16 F.3d 626
    , 636 (5th Cir. 1994);
    Weaver v. Puckett, 
    896 F.2d 126
    , 126-27 (5th Cir. 1990).
    Lee’s final contention is that the state courts unreasonably
    applied federal law in determining that his trial attorney did
    not render ineffective assistance of counsel.    He argues that
    counsel rendered deficient performance based on his decision not
    to present certain mitigating evidence and that this performance
    prejudiced the defense.   Counsel’s decision not to present the
    disputed evidence was based on sound trial strategy.    See
    Jernigan v. Collins, 
    980 F.2d 292
    , 296 (5th Cir. 1992); Williams,
    
    16 F.3d at 634
    .   The state court’s conclusion that counsel did
    not render a deficient performance thus does not constitute an
    No. 01-50834
    -3-
    unreasonable application of federal law.   See Neal v. Puckett,
    
    286 F.3d 230
    , 246 (5th Cir. 2002) (en banc).   The judgment of the
    district court is AFFIRMED.
    

Document Info

Docket Number: 01-50834

Filed Date: 6/12/2002

Precedential Status: Non-Precedential

Modified Date: 12/21/2014