ROMERO v. MCDONALD (2019)

MEMORANDUM ***

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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.