Biquet v. Dretke ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 12, 2005
Charles R. Fulbruge III
Clerk
No. 04-40480
Summary Calendar
PHILIP GERALD BIQUET,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:03-CV-154-RHC-HWM
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Philip Gerald Biquet, Texas prisoner # 1120742, seeks relief
pursuant to 28 U.S.C. § 2254 from his state-court jury-trial
conviction for felony driving while intoxicated. Biquet was
granted a certificate of appealability (COA) by the district court
on the issues whether trial counsel rendered ineffective assistance
by failing to obtain medical records demonstrating that Biquet (1)
suffered from asthma, thereby justifying his refusal to submit to
*
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this opinion should not be published and is not precedent except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. 04-40480
-2-
a breathalyzer test and (2) had previously suffered two broken
ankles, thereby explaining Biquet’s failure to satisfactorily
perform those roadside sobriety tests requiring balance.
Biquet fails to meet the standard for obtaining habeas relief
on his certified claims of ineffective assistance. See 28 U.S.C.
§ 2254(d)(1) & (2); Strickland v. Washington, 466 U.S. 668, 697
(1984); Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000).
The introduction at trial of Biquet’s medical records would have
potentially had only a limited impact on the state’s case. The
record reveals other evidence of guilt presented at Biquet’s trial
that supports his conviction, including the arresting officers’
observations of intoxication, Biquet’s admission that he consumed
alcoholic beverages prior to his arrest, and Biquet’s inability to
perform sobriety tests, including sobriety tests that did not
require balance. Under these circumstances, Biquet fails to
demonstrate prejudice resulting from counsel’s alleged errors. See
Strickland, 466 U.S. at 697.
In a reply brief, Biquet asks this court to broaden the scope
of the COA “to include all issues presented that effected
petitioners right to have received a fair trial.” We reject this
request as untimely. See United States v. Williamson, 183 F.3d
458, 464 n.11 (5th Cir. 1999); United States v. Kimler, 150 F.3d
429, 431 (5th Cir. 1998); United States v. Prince, 868 F.2d 1379,
1386 (5th Cir. 1989).
AFFIRMED.