Roberson v. Johnson ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50617
(Summary Calendar)
LAVESTER ROBERSON,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-96-CV-172
April 9, 1998
Before JONES, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Texas prisoner Lavester Roberson, #483555, appeals from the grant of summary judgment
by the district court in favor of Respondent. The district court granted Roberson a certi ficate of
appealability to appeal two issues: (1) whether the State elicited testimony from a State witness about
Roberson’s voluntary post-arrest, post-Miranda statements in violation of Doyle v. Ohio, 426 U.S.
610 (1976), and (2) whether Roberson’s state trial counsel was ineffective.
We have reviewed the record and the briefs of the parties and hold that any Doyle error was
harmless. Pitts v. Anderson, 122 F.3d 275, 279-81 (5th Cir. 1997). In the event of a Doyle error,
a petitioner is not entitled to federal habeas relief unless the error had a “ ‘substantial and injurious
*
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 R. 47.5, the court has determined that this opinion should not be published and is not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.
effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 637-38
(1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Roberson has not met the
burden of demonstrating such effect. We further hold that Roberson’s counsel was not ineffective.
Strickland v. Washington, 466 U.S. 668, 687-94 (1984). Roberson has not introduced the requisite
clear and convincing evidence to prove that the state habeas court’s findings regarding his ineffective
assistance of counsel claim are erroneous. Williams v. Cain, 125 F.3d 269, 277 (5th Cir. 1997); 28
U.S.C. §2254(e)(1).
AFFIRMED.
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