IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-21095
Summary Calendar
CHARLES RAY COOPER,
Petitioner - Appellant
v.
GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION
Respondent - Appellee
______________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-96-CV-2063)
______________________________________________________
September 17, 1997
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Charles Ray Cooper, a Texas prisoner (#473763), appeals the
district court’s order denying his petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Cooper argues that his
trial counsel performed ineffectively by failing to file a timely
objection to the prosecution’s peremptory strikes of black
venirepersons, allegedly in violation of Batson v. Kentucky, 476
*
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that this opinion should not be published and is not precedent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.
U.S. 79 (1986). After carefully reviewing the record and the
briefs, we conclude that the judgment of the district court
should be affirmed.
Cooper filed his habeas petition with the district court on
June 20, 1996, nearly two months after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. 104-132, 110 Stat. 1214, which enacted the present 28
U.S.C. § 2254(d). The standard of review set forth in § 2254(d)
accordingly governs this case. See Lindh v. Murphy, 117 S. Ct.
2059 (1997). Section 2254(d) provides:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim --
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
The second clause of § 2254(d)(1) sets out the standard of
review for mixed questions of law and fact. Mata v. Johnson, 99
F.3d 1261, 1267 (5th Cir. 1996), vacated in part on other grounds
on rehearing, 105 F.3d 209 (5th Cir. 1997). Because
effectiveness of counsel is a mixed question of law and fact,
Strickland v. Washington, 466 U.S. 668, 698 (1984), we must
decide whether the state court decision involved an “unreasonable
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application” of clearly established law. We have interpreted the
“unreasonable application” standard to permit the grant of habeas
relief “only if a state court decision is so clearly incorrect
that it would not be debatable among reasonable jurists.”
Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir. 1996), cert.
denied, 117 S. Ct. 1114 (1997).
The Court of Appeals for the First District of Texas
considered Cooper’s ineffective assistance claim and determined
that it was without merit. The court reasoned that Cooper had
failed to meet the prejudice prong of the test for ineffective
assistance established in Strickland, 466 U.S. at 694.
Specifically, the state court reviewed the evidence and concluded
that Cooper had failed to show a reasonable probability that the
result of his trial would have been different absent his
counsel’s failure to preserve for review the prosecution’s use of
peremptory strikes to exclude black venirepersons from the jury.
This decision is neither contrary to, nor involves “an
unreasonable application of[ ] clearly established Federal law,
as determined by the Supreme Court of the United States.”
The judgment of the district court is AFFIRMED.
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