IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20925
Summary Calendar
DARRYL CARTER,
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:98-CV-1790
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September 6, 2000
Before HIGGINBOTHAM, DeMOSS and STEWART, Circuit Judges:
PER CURIAM:*
Daryl Carter, Texas prisoner # 728436, appeals the district court’s dismissal of his 28 U.S.C.
§ 2254 petition. A certificate of appealability was granted for the issue whether Carter received
ineffective assistance of counsel when his attorney did not call as a trial witness defense investigator
Andy Williams to counter the testimony of Mary Zaman, the victim and witness of the robbery.
Zaman testified at trial that she had never seen Carter in the store before the robbery. A report from
Williams to Carter’s attorney indicated t hat Zaman had told Williams that she recognized Carter
because he had previously been in the store.
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Carter argues that his attorney was ineffective for not calling Williams to testify because such
testimony would have casted doubt on Zaman’s testimony and would have bolstered his defense that
Zaman identified Carter as the robber, not because he was the perpetrator, but because she
recognized him from having been in the store before the robbery.
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). A petitioner must prove both deficient
performance and prejudice, and a failure to establish either deficient performance or prejudice defeats
the claim. Id. at 697.
To prove deficient performance, the petitioner must show that counsel’s actions “fell below
an objective standard of reasonableness.” Strickland. 466 U.S. at 688. To prove prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,” id, at 694, and that “counsel's
deficient performance render[ed] the result of the trial unreliable or the proceeding fundamentally
unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
Carter’s attorney was able to present his misidentification argument effectively without
Williams’ testimony, and, even if the attorney was ineffective for failing to call Williams as a witness,
Carter has not established that the result of the trial was unreliable or that he suffered fundamental
unfairness at trial.
The district court’s dismissal of Carter’s § 2254 petition is AFFIRMED. Carter’s motion to
amend his habeas petition is DENIED.