Penneston v. Johnson

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-11318
Summary Calendar
CHARLES LIONELL PENNESTON,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CV-831-P
--------------------
July 6, 2001
Before JOLLY, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:*
Charles Lionell Penneston, Texas prisoner # 801608, was
granted a motion for a certificate of appealability (COA) on the
issue whether there was improper communication with certain
female jurors during his trial that denied him due process.
Penneston argues that he is entitled to habeas relief because
there was improper contact between the victim’s mother and
several female jurors. Penneston attached an affidavit of Bea
Campbell stating that she observed the victim’s mother, who was

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No. 00-11318
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carrying a photograph of the victim, coming down a stairway with
several female jurors during a recess in the jury’s
deliberations. Because Penneston did not present any evidence to
establish that the jurors were exposed to specific prejudicial
evidence, witnesses, or other prejudicial facts which were not
introduced as evidence at trial, he has not established that he
was deprived of a fair trial or prejudiced by the alleged
improper contact between the victim’s mother and several female
jurors. See Smith v. Phillips, 455 U.S. 209, 217-18 (1982).
Penneston has not shown that the state court’s decision denying
this claim was “contrary to, or an unreasonable application of
clearly established Federal law as determined by the Supreme
Court of the United States.” See 28 U.S.C. § 2254(d)(1).
Penneston’s motion for an evidentiary hearing is denied.
AFFIRMED; MOTION FOR EVIDENTIARY HEARING DENIED.

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