Solis v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 13, 2004
Charles R. Fulbruge III
Clerk
No. 03-41555
Summary Calendar
JACINTO SOLIS, II,
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. 6:03-CV-140
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Jacinto Solis, II, Texas prisoner # 886736, appeals the
district court’s denial of his 28 U.S.C. § 2254 petition
challenging his guilty-plea conviction for delivery of more than
one and less than four grams of cocaine. He argues that his trial
counsel rendered ineffective assistance by failing to investigate
and challenge an enhancement in the indictment alleging that the
offense occurred within 1000 feet of a playground; Solis pleaded
*
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that this opinion should not be published and is not precedent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. 03-41555
-2-
true to the enhancement at the advice of counsel. The district
court found that although counsel’s failure to investigate and
challenge was deficient, Solis had not shown prejudice.
In order to obtain relief under 28 U.S.C. § 2254, Solis must
show that the reasoning of the state court “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). Solis asserts that under Texas
law, prejudice is inherent because counsel’s error resulted in an
increase in the statutory minimum sentence from five years’
imprisonment to 15 years’ imprisonment. An error in state law is
insufficient to warrant habeas relief. Manning v. Warden,
Louisiana St. Penitentiary, 786 F.2d 710, 711 (5th Cir. 1986).
Solis alleges that various state courts use mathematical
precision to determine the midpoint range of a guideline sentence
and that if the jury had considered the proper range of punishment,
it is reasonable to assume that they would have imposed a sentence
proportionally below the new midpoint range of the guidelines. Any
error in not following the law of another state will not merit
habeas relief. Manning, 786 F.2d at 711. Although Solis contends
that it would not have been an unreasonable application of clearly
established federal law for the Texas courts to use a mathematical-
precision analysis, he has not established that the failure to do
so constituted an unreasonable application either. See 28 U.S.C.
§ 2254(d)(1).
No. 03-41555
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Solis contends that the district court used the wrong standard
by requiring him to show that his sentence was increased “due to”
counsel’s error. He maintains that the proper standard under
Strickland v. Washington, 466 U.S. 668, 696 (1984), is that “the
decision reached would reasonably likely have been different absent
the error[].” Assuming arguendo that the district court applied
the wrong standard, Solis has not established that he was entitled
to habeas relief; he has not shown that it was “reasonably likely”
that his sentence would have differed.
Solis also contends that the unreasonable severity of his
sentence shows prejudice. Solis has not established that his
sentence was wholly unreasonable for the offense he did commit and
for his criminal history. Consequently, the judgment of the
district court is AFFIRMED.