IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40934
Summary Calendar
ARNULFO RODRIGUEZ,
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. C-97-CV-238
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March 11, 1999
Before JOHNSON, DUHE’, and STEWART, Circuit Judges.
PER CURIAM:*
Arnulfo Rodriguez, Texas prisoner # 665576, appeals the
district court’s denial of his petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Rodriguez contends that he
received ineffective assistance of trial counsel because his
attorney failed to investigate the murder indictment to see if it
was returned by the grand jury before the victim had died and
because his attorney failed to challenge the state court’s entry
of a deadly-weapon finding.
*
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that this opinion should not be published and is not precedent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. 98-40934
-2-
To prevail on a claim of ineffective assistance of counsel,
a defendant must show: (1) that his counsel’s performance was
deficient in that it fell below an objective standard of
reasonableness; and (2) that the deficient performance prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 689-694
(1984). “A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id. at 689. To show Strickland
prejudice, a defendant must demonstrate that counsel’s errors
were so serious as to “render[] the result of the trial
unreliable or the proceeding fundamentally unfair.” Lockhart v.
Fretwell, 506 U.S. 364, 372 (1993). A failure to establish
either deficient performance or prejudice defeats the claim.
Strickland, 466 U.S. at 697.
Upon de novo review, Rodriguez has not demonstrated either
deficient performance or prejudice arising from counsel’s failure
to challenge the second indictment or from his failure to object
to the deadly-weapon finding. Because Rodriguez has failed to
demonstrate that he has met the Strickland test for ineffective
assistance of counsel, the district court’s judgment is AFFIRMED.