Carmona v. Johnson ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10529
Summary Calendar
JOSÉ GUADALUPE CARMONA,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
(97-CV-118)
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May 25, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant José Guadalupe Carmona, Texas inmate
# 663291, appeals the district court’s dismissal of his petition
for a writ of habeas corpus, 28 U.S.C. § 2254. We granted a
certificate of appealability (COA) on the issue whether trial
counsel provided ineffective assistance by failing to cross-examine
witness Brian Smith regarding the burglary charges that were
pending against Smith at the time of Carmona’s trial. We will not
*
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that this opinion should not be published and is not precedent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.
consider Carmona’s contention that he was denied his rights under
the Confrontation Clause because a COA was not granted on that
issue. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
To establish ineffective assistance of counsel, Carmona must
show that his lawyer's performance fell below an objective standard
of reasonable competence (cause), and that he (Carmona) was
prejudiced by counsel's deficient performance (prejudice). See
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993); Strickland v.
Washington, 466 U.S. 668, 687 (1984). Failure to establish either
cause or prejudice defeats the claim. Strickland, 466 U.S. at 697.
To demonstrate prejudice, Carmona must show that counsel's
deficient performance makes the result of the trial unreliable or
renders the proceeding fundamentally unfair. See Fretwell, 506
U.S. at 372.
Because an ineffective-assistance-of-counsel claim is a mixed
question of law and fact, see Loyd v. Smith, 899 F.2d 1416, 1425
(1990), Carmona must show that the adjudication of his claim
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” to obtain
federal habeas relief. 28 U.S.C. § 2254(d)(1); see Lockhart v.
Johnson, 104 F.3d 54, 56-57 (5th Cir.)(§ 2254(d)(1) governs this
court’s review of mixed questions of law and fact), cert. denied,
117 S. Ct. 2518 (1997). The state court’s findings of fact are
presumed correct, and Carmona has the burden of rebutting the
presumption with “clear and convincing evidence.” § 2254(e)(1).
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The presumption of correctness applies to the historical facts
underlying the ultimate conclusion of law in a state court’s
determination of a mixed question of fact and law. See Sumner v.
Mata, 455 U.S. 591, 597 (1982).
Carmona’s attorney challenged Smith’s credibility and motive
for testifying on cross-examination and impeached Smith’s
testimony. The state produced evidence of Carmona’s guilt,
including his own inculpatory statements, that was unrelated to
Smith’s testimony. The trial court instructed the jury that Smith
was an accomplice and that it could not find Carmona guilty on
Smith’s uncorroborated testimony.
Carmona makes the speculative and conclusional assertion that
if counsel had requested leave to admit evidence of Smith’s pending
burglary charges, the trial court would have admitted the testimony
and the evidence would have affected the jury’s determination.
This is not sufficient to establish an ineffective-assistance
claim. See Lincecum v. Collins, 958 F.2d 1271, 1279-80 (5th Cir.
1992)(ineffectiveness claim based on speculation or conclusional
rhetoric will not warrant relief).
Carmona also contends that counsel’s failure to challenge the
motion in limine at trial and failure to preserve the issue for
direct appeal caused him prejudice. This is refuted by the state
court’s opinion on direct appeal. Carmona has not shown that
counsel’s performance caused “the result of the trial to be
unreliable or rendered the proceeding fundamentally unfair.”
Fretwell, 506 U.S. at 372. Thus, as Carmona has not shown
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prejudice, he has not established ineffective assistance of
counsel. See Strickland, 466 U.S. at 697. As the Strickland test
is disjunctive, we need not consider the cause prong further. The
judgment of the district court is
AFFIRMED.
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