Hinkle v. Dretke , 86 F. App'x 687 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 22, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40329
Summary Calendar
ROBERT CLINTON HINKLE,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:02-CV-110
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Before BARKSDALE, Emilio M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
A jury convicted Robert Clinton Hinkle, Texas inmate #877047,
of capital murder, finding that he shot and killed two men as they
sat in his living room. The trial court sentenced Hinkle to life
imprisonment. The district court granted a COA on the issue
whether counsel provided ineffective assistance when he told
Hinkle’s witnesses that their testimony was not needed.
*
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that this opinion should not be published and is not precedent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. 03-40329
-2-
Federal habeas relief may not be granted on questions
adjudicated on the merits by a state court unless the state court’s
decision (1) was contrary to or was an unreasonable application of
clearly established federal law as determined by the Supreme Court;
or (2) was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding. 28
U.S.C. § 2254(d).
To establish ineffective assistance, Hinkle must show that
counsel’s performance was deficient and that the deficient
performance caused him prejudice. See Strickland v. Washington,
466 U.S. 668, 687 (1984). “[C]omplaints of uncalled witnesses are
not favored, because the presentation of testimonial evidence is a
matter of trial strategy,” and counsel is entitled to a presumption
that his performance was adequate. Wilkerson v. Cain, 233 F.3d
886, 892-93 (5th Cir. 2000). To demonstrate the required
Strickland prejudice on his claim of ineffective assistance based
on uncalled witnesses, Hinkle “must show not only that [the]
testimony would have been favorable, but also that the witness
would have testified at trial.” Evans v. Cockrell, 285 F.3d 370,
377 (5th Cir. 2002).
The district court concluded that Hinkle did not show that the
uncalled witnesses’ testimony would have been favorable and that
counsel’s decision to omit the testimony was not a matter of sound
trial strategy. See Evans, 285 F.3d at 377; Wilkerson, 233 F.3d at
892-93. We agree.
No. 03-40329
-3-
Hinkle has not made the showing required under 28 U.S.C.
§ 2254(d). Accordingly, the judgment of the district court is
AFFIRMED.