Debrow v. Cain , 286 F. App'x 158 ( 2008 )


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  •          IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT United States Court of Appeals
    Fifth Circuit
    FILED
    July 14, 2008
    No. 06-31114
    Summary Calendar              Charles R. Fulbruge III
    Clerk
    JEMETRIC DEBROW
    Petitioner-Appellant
    v.
    BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY
    Respondent-Appellee
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 5:03-CV-2219
    Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Jemetric Debrow, Louisiana prisoner # 340678, appeals from the denial of
    his application for habeas corpus relief pursuant to 28 U.S.C. § 2254. Debrow
    challenges his convictions of attempted second degree murder and armed
    robbery. We granted Debrow a certificate of appealability (COA) on the issue
    whether counsel was ineffective for failing to move for a mistrial or an
    instruction to disregard a witness’s hearsay testimony. We denied Debrow a
    COA as to every other issue he raised in his COA motion.
    *
    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    should not be published and is not precedent except under the limited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. 06-31114
    Debrow contends that Crawford v. Washington, 
    541 U.S. 36
    (2004), was
    violated when the police witness offered hearsay testimony. This court denied
    Debrow a COA on the issue whether the trial court erred by admitting hearsay
    evidence. Loose papers, orange tab. A COA is a jurisdictional prerequisite for
    an appeal in a habeas action. Haynes v. Quarterman, 
    526 F.3d 189
    , 192 (5th Cir.
    2008). We lack jurisdiction to address Debrow’s contention.
    Debrow contends that counsel’s failure to move for a mistrial or request
    a limiting instruction constituted ineffective assistance because a sustained
    objection was inadequate to cure a harmful error. He argues that counsel’s
    failure deprived him of a fair trial, but does not indicate exactly how that is so.
    He argues that counsel owed him the same level of legal representation received
    by the defendant in Crawford, without elaborating on how counsel’s performance
    suffered by comparison to the representation in Crawford.
    Viewed in the light of the evidence against Debrow, the testimony in
    question was not sufficiently prejudicial to warrant a mistrial, see State v. Tate,
    
    880 So. 2d 255
    , 261 (La. App. 2004), and an instruction to disregard the hearsay
    testimony would not have affected the verdict.        Debrow has not shown a
    reasonable probability that he would have been found not guilty had counsel
    requested an instruction to disregard. See Strickland v. Washington, 
    466 U.S. 668
    , 694 (1984).
    Moreover, to the extent that Debrow’s brief can be read as suggesting that
    counsel was ineffective for failing to raise a Crawford-like argument, Debrow
    was convicted before Crawford was decided. Crawford overruled previous
    Supreme Court caselaw regarding hearsay testimony. See Lave v. Dretke, 
    444 F.3d 333
    , 334 (5th Cir. 2006). Counsel does not render ineffective assistance by
    failing to anticipate changes in the law. Lucas v. Johnson, 
    132 F.3d 1069
    , 1078-
    79 (5th Cir. 1998).
    AFFIRMED.
    2
    

Document Info

Docket Number: 06-31114

Citation Numbers: 286 F. App'x 158

Judges: Reavley, Smith, Dennis

Filed Date: 7/14/2008

Precedential Status: Non-Precedential

Modified Date: 11/5/2024