Joseph Sandoval v. Burl Cain, Warden


UNPUBLISHED OPINION FILED. [10-30010 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 10/14/2010 [10-30010]

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Joseph Sandoval v. Burl Cain, Warden Doc. 0 Case: 10-30010 Document: 00511242786 Page: 1 Date Filed: 09/23/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-30010 S u m m a r y Calendar September 23, 2010 Lyle W. Cayce Clerk J O S E P H SANDOVAL, P e titio n e r-A p p e lla n t v. B U R L CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, R e s p o n d e n t -A p p e lle e A p p e a l from the United States District Court fo r the Eastern District of Louisiana U S D C No. 2:09-CV-3060 B e fo r e WIENER, PRADO and OWEN, Circuit Judges. P E R CURIAM:* J o s e p h Sandoval, Louisiana prisoner # 395773, appeals the district court's d e n ia l of his 28 U.S.C. 2254 petition, challenging his convictions for d is t r ib u t io n of heroin and possession with intent to distribute heroin. The d is t r ic t court granted a certificate of appealability on the issue whether the fa ilu r e of the trial judge, Judge Ronald Bodenheimer, to recuse himself c o n s t it u t e d structural error. T h e district court must defer to the state court's adjudication on the merits o f an applicant's claims unless the state court's adjudication was "contrary to" 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30010 Document: 00511242786 Page: 2 No. 10-30010 Date Filed: 09/23/2010 o r involved an "unreasonable application" of clearly established federal law as d e t e r m in e d by the Supreme Court or was based on an unreasonable d e t e r m in a t io n of the facts. See Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2 0 0 3 ); 2254(d)(1), (2). This court reviews the district court's findings of fact for c le a r error and its conclusions of law de novo. Buntion v. Quarterman, 524 F.3d 6 6 4 , 670 (5th Cir. 2008). S a n d o v a l argued that Judge Bodenheimer should have recused himself d u e to an ongoing criminal investigation against him. Sandoval did not allege t h a t the judge had an actual bias against him or that the judge's alleged bias r e s u lt e d in any specific erroneous rulings in his trial. See Bracy v. Gramley, 520 U .S . 899, 909 (1997). He has not shown presumptive bias, such as when the ju d g e has a direct interest in the outcome of the case, the judge has been subject t o abuse by the party before him, or the judge had a dual role of investigating a n d adjudicating disputes. See Buntion, 524 F.3d at 672. He has not shown that t h e r e was an appearance of impropriety that rose to the level of a due process v io la t io n . See Richardson v. Quarterman, 537 F.3d 466, 476-79 (5th Cir. 2008). His allegation that bias existed because a detective, who testified at his trial, a ls o investigated Judge Bodenheimer is unpersuasive; it does not establish that t h e judge had an actual or presumptive bias or an appearance of bias that r e q u ir e d recusal. Sandoval has not shown that the outcome of his case had any p o t e n t ia l to affect the outcome of the unrelated case against Judge Bodenheimer. Therefore, he has not shown that the district court erred in holding that because t h e r e was no direct or presumptive bias, there was no structural error. See R ic h a r d s o n , 537 F.3d at 478. The district court did not err in determining that t h e state court's decision was not "contrary to" or an "unreasonable application" o f clearly established federal law as determined by the Supreme Court. See M in ie l, 339 F.3d at 336-37. A F F IR M E D . 2

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