Donald Turner v. Rick Thaler, Director , 427 F. App'x 372 ( 2011 )

Case: 09-51076 Document: 00511500771 Page: 1 Date Filed: 06/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 7, 2011
No. 09-51076
Summary Calendar Lyle W. Cayce
Clerk
DONALD ALLEN TURNER,
Petitioner-Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CV-365
Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Donald Allen Turner, Texas prisoner # 1248114, appeals the district
court’s judgment dismissing his 28 U.S.C. § 2254 petition challenging his
conviction of two counts of indecency with a child. A certificate of appealability
was granted on the issue whether the district court erred by denying Turner’s
claim that his appellate counsel, Cori Harbour, rendered ineffective assistance
by failing to challenge on hearsay grounds the admission of testimony by State
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-51076 Document: 00511500771 Page: 2 Date Filed: 06/07/2011
No. 09-51076
witness Roy Snyder regarding his reactions to his conversations with the victim,
J.S.
We must defer to a state habeas court’s determination of the merits of the
prisoner’s claims unless the state decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States,” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” § 2254(d)(1) & (2). To obtain relief under § 2254, a state prisoner
“must show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011). “[E]ven a
strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. at 786. We review the district court’s findings of fact for
clear error and issues of law de novo. Propes v. Quarterman, 573 F.3d 225, 227
(5th Cir. 2009), cert. denied, 130 S. Ct. 3272 (2010).
Because Turner did not object at trial to at least two of the four instances
at issue of Snyder’s testimony, hearsay arguments regarding those statements
were not properly preserved for appeal, and Harbour did not perform deficiently
by failing to raise such unpreserved arguments. See T EX. R. A PP. P. 33.1(a)(1);
Fernandez v. State, 805 S.W.2d 451, 455-56 (Tex. Crim. App. 1991); Strickland
v. Washington, 466 U.S. 668, 689-94 (1984). Even if this court presumes that
reasonable jurists could not disagree that Harbour performed deficiently by
failing to challenge the admissibility of Snyder’s testimony regarding his
reactions to his other two conversations with J.S., in light of the other record
evidence of his guilt, Turner cannot show “beyond any possibility for fairminded
disagreement” that he was prejudiced by Harbour’s performance. See
Harrington, 131 S. Ct. at 786-87; Strickland 466 U.S. at 694.
AFFIRMED.
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