Dimarco Lewis v. Burl Cain, Warden , 444 F. App'x 835 ( 2011 )

Case: 09-31090 Document: 00511635728 Page: 1 Date Filed: 10/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 18, 2011
No. 09-31090
Summary Calendar Lyle W. Cayce
Clerk
DIMARCO LEWIS,
Petitioner-Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CV-2848
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Dimarco Lewis, Louisiana prisoner # 466781, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 petition challenging his convictions for armed
robbery, attempted armed robbery, and two counts of attempted second-degree
murder. A certificate of appealability was granted on the issue whether the
district court erred by denying a claim that counsel provided ineffective
assistance by failing to provide proper notice of an alibi witness, which resulted
in this witness not being allowed to testify.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-31090 Document: 00511635728 Page: 2 Date Filed: 10/18/2011
No. 09-31090
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). We review
the district court’s findings of fact for clear error and issues of law de novo.
Harrison v. Quarterman, 496 F.3d 419, 423 (5th Cir. 2007).
Lewis has failed to provide any evidence from the witness herself showing
that she was willing to testify and setting out the content of her expected
testimony. In addition, the witness’s testimony, as alleged by Lewis, would have
been relevant only to two of the four charges, the testimony would have been
cumulative of earlier testimony, and the witness’s credibility could have been
questioned based on her close family relationship with Lewis. Finally, several
other witnesses identified Lewis as one of the perpetrators. Even if this court
presumes that reasonable jurists could not disagree that counsel performed
deficiently by failing to list this alibi witness, Lewis cannot show “beyond any
possibility for fairminded disagreement” that, if counsel had listed this witness
and she had testified, the result of his trial would have been different. See
Harrington, 131 S. Ct. at 786-87; Strickland v. Washington, 466 U.S. 668, 694
(1984).
AFFIRMED.
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