IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11252 Summary Calendar

JERRY BRYAN KEITH,

Petitioner-Appellant,

versus

JANIE COCKRELL, 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. 2:99-CV-107 -------------------- January 15, 2003

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Jerry Bryan Keith (Keith), now a Texas state prisoner,

appeals the denial of his

petition. A

certificate of appealability was granted on the issue of whether

the trial judge was biased.

Keith was indicted in two causes and charged with multiple

counts of sexual misconduct involving juveniles. The causes were

tried separately. After the verdict was rendered in the first

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-11252 -2-

trial, the trial judge had a conversation with jurors. Keith

contends that this conversation indicates that the trial judge

was improperly biased. Thus, Keith argues, when the same trial

judge presided over subsequent trials on the second cause, which

resulted in a jury conviction and sentence, he was deprived of

his constitutional right to a fair trial before an impartial

tribunal. Keith makes no allegation that the jury who convicted

him in his subsequent trial either heard the conversation or was

improperly influenced by the trial judge.

Keith initially argues that his application for writ of

habeas corpus filed in Texas state court was denied without an

adjudication of the merits and thus the deferential standard of

review set forth in

(d) is not applicable to his

appeal. The term “adjudication on the merits” in

(d) addresses whether the state court’s disposition of the

claim at issue was procedural or substantive. Neal v. Puckett,

(5th Cir. 2002) (en banc). Nothing in the case

history suggests that the Texas Court of Criminal Appeals was

aware of a procedural bar to considering Keith’s claims. See

Barrientes v. Johnson,

(5th Cir. 2000),

cert. dismissed,

(2001) (setting forth analysis to

determine whether state court adjudication was merits-based).

Additionally, the Texas Court of Criminal Appeals’ language,

“denied without written order,” indicates that the denial was on

the merits. Id. at 779-80; Miller v. Johnson,

, 281 No. 01-11252 -3-

(5th Cir.) cert. denied,

(2000). Therefore, the

deferential standard set forth in

(d) is

applicable to Keith’s case.

Not all questions of judicial qualification involve

constitutional validity. Aetna Life Ins. Co. v. Lavoie,

(1986). When analyzing judicial bias in habeas

proceedings, the issue is whether there was an appearance of

impropriety that rose to the level of a fundamental defect

resulting in a complete miscarriage of justice. United States v.

Couch,

, 81-82 and n.6 (5th Cir. 1990).

Constitutionally intolerable bias is found only in extreme cases.

Public Citizen Inc. v. Bomer,

(5th Cir. 2002);

see Baran v. Port of Beaumont Navigation,

(5th

Cir. 1995).

Keith’s case is not the extreme type of case where there was

a probability of bias on the part of the trial judge that was so

high that it was constitutionally intolerable. Therefore, the

state-court adjudication denying Keith’s habeas corpus

application was neither contrary to clearly established federal

law as determined by the Supreme Court nor based on an

unreasonable determination of the facts in light of the evidence

presented in the state-court proceedings. See

(d); Williams v. Taylor,

(2000).

The decision of the district court is AFFIRMED.