IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20651
Summary Calendar
LEWIS D. TRIPLETT,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-2810
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September 9, 1998
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Lewis Daniel Triplett (#381079) has appealed the dismissal
of his petition for a writ of habeas corpus. Triplett contends
that his trial attorneys rendered ineffective assistance in
conducting an insufficient investigation and in failing to call
Dean Habada as a witness to establish that the victim had
misidentified him as the perpetrator of the burglary for which
Triplett is currently incarcerated. The Texas Court of Criminal
Appeals denied Triplett’s state habeas petitions raising this
*
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this opinion should not be published and is not precedent except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. 97-20651
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issue. To prevail on an ineffective-assistance-of-counsel claim,
a petitioner must show “that counsel’s performance was deficient”
and “that the deficient performance prejudiced the defense.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove
deficient performance, the petitioner must show that counsel’s
actions “fell below an objective standard of reasonableness.”
Id. at 688.
Under the standard for reviewing habeas applications
established by the Antiterrorism and Effective Death Penalty Act
of 1996, federal court’s may not grant habeas relief “with
respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim . . .
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 . . . .” 28
U.S.C. § 2254(d)(1); see Drinkard v. Johnson, 97 F.3d 751, 767-68
(5th Cir. 1996) (§ 2254(d)(1) provides the standard of review for
mixed questions of law and fact), cert. denied, 117 S. Ct. 1114
(1997); Black v. Collins, 962 F.2d 394, 401 (5th Cir. 1992) (a
claim of ineffective assistance of counsel is a mixed question of
law and fact). A state court’s application of federal law to the
facts “is unreasonable only when it can be said that reasonable
jurists considering the question would be of one view that the
state court ruling was incorrect.” Drinkard, 97 F.3d at 769.
The state records show that Triplett’s attorneys were aware
that Habada resembled Triplett and that counsel made a conscious
decision not to call Habada because of the possibility that
No. 97-20651
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Habada’s testimony would be damaging to Triplett. Although the
attorneys’ decision was arguably erroneous, the state court’s
determination that the attorneys’ decision was not professionally
unreasonable did not involve an unreasonable application of
clearly established federal law. See § 2254(d)(1). It cannot be
said that jurists would be of one view that the state-court
determination was unreasonable. See Drinkard, 97 F.3d at 769.
Accordingly, the judgment is
AFFIRMED.