Case: 11-10008 Document: 00511519230 Page: 1 Date Filed: 06/23/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 23, 2011
No. 11-10008 Lyle W. Cayce
Clerk
STEVEN JEFFREY PAPE,
Petitioner-Appellee
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before REAVLEY, GARZA, and SOUTHWICK, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
In this petition for habeas relief under 28 U.S.C. § 2254, officials with the
State of Texas (“State”) argue that the district court erred by conducting an
evidentiary hearing and by granting habeas relief to Petitioner-Appellee Steven
Jeffrey Pape (“Pape”). We agree. For the reasons explained below, we
REVERSE the district court and DENY Pape’s petition.
I
The State arrested Pape for sexually molesting his daughter and charged
him with four counts of aggravated sexual assault of a child younger than
fourteen and one count of indecency with a child. Shortly thereafter, Pape was
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charged in Texas state court with one count of possession of child pornography.
Pape’s trial counsel moved to sever the trials and Pape’s first trial addressed
only the indecency and sexual assault charges. Three witnesses testified at trial:
1) Pape’s daughter, S.P.; 2) his former wife and S.P.’s mother, A.P.; and, 3) Dr.
Jayme Coffman, a physician who had physically examined S.P. in connection
with the State’s investigation. The case against Pape rested only on testimonial
evidence; the State did not present any physical evidence such as blood or DNA
samples.
S.P. testified at trial that Pape began sexually molesting her when she was
eight or nine years old. S.P. testified that eventually, Pape began having sex
with her on a daily basis and that the sexual assaults continued until she
“started hanging around her mother a lot.” S.P. stated that she waited about
two years before she told her mother about the assaults. Once A.P. learned
about the incidents she called the authorities and investigators with Child
Protective Services (CPS) interviewed S.P. During the interviews, S.P. provided
inconsistent accounts of the abuse. Dr. Coffman examined S.P. in connection
with the investigation and testified that although S.P. said Pape had raped her,
S.P.’s physical examination was normal and her hymen was intact. When A.P.
initially testified at trial she discussed her marriage to Pape and how she
learned of S.P.’s allegations about the sexual assault. During cross-examination,
however, defense counsel significantly expanded the scope of A.P.’s testimony by
asking A.P. a series of questions about accusations in which A.P. claimed Pape,
neighbors, or acquaintances had tried to physically harm her. Defense counsel
also cross-examined A.P. about her allegation that she had once observed Pape
inappropriately touching S.P. when the girl was an infant.
The jury convicted Pape on two counts of aggravated sexual assault and
a single count of indecency with a child. The jury acquitted Pape on the
remaining two counts of aggravated sexual assault of a child. Pape was
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sentenced to concurrent terms of forty, fifty, and fifteen years of imprisonment
for the three convictions. Pape appealed these convictions and the state
appellate court affirmed the trial court’s judgment. Subsequently, Pape filed a
state application for habeas corpus, which alleged Pape’s trial counsel was
ineffective because the attorneys had: 1) failed to investigate potential witnesses;
2) failed to use favorable character witnesses during trial; 3) failed to impeach
A.P. with expert and lay witnesses whose testimony would discuss A.P.’s
credibility and mental health problems; 4) sponsored damaging evidence before
the jury; 5) failed to object to inadmissible medical testimony; 6) failed to object
to certain evidence and testimony during trial; and, 7) during sentencing,
referred to Pape as a “pedophile” and failed to object to testimony that sex
offenders cannot be cured.
The state trial court conducted a hearing by affidavit, entered factual
findings that refuted Pape’s allegations, and concluded that Pape had received
effective assistance of counsel under Strickland v. Washington, 466 U.S. 668
(1984). The Texas Court of Criminal Appeals denied Pape’s subsequent appeal.
Pape sought federal habeas relief after exhausting his options in state court. A
magistrate judge recommended that the district court deny the petition and
Pape objected to the magistrate’s Report and Recommendation. After reviewing
the parties’ written arguments, the district court held an evidentiary hearing so
Pape could “fully develop his claim that trial counsel rendered ineffective
assistance of counsel.” The district court heard testimony from Pape’s trial and
state habeas counsel, and received testimony from at least twelve witnesses via
affidavits submitted by Pape. Based on the record and the new evidence elicited
during the hearing, the district court granted Pape’s petition. The district court
concluded that the state Court had unreasonably applied Supreme Court
precedent. The district court concluded trial counsel’s conduct fell below an
objective standard of reasonableness and “amounted to constitutionally
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ineffective assistance of counsel” because counsel: 1) failed to properly
investigate and present character witnesses; 2) injected evidence of Pape’s
alleged inappropriate touching of his infant daughter, which harmed the
defense’s case; 3) failed to object to Dr. Coffman’s testimony; 4) failed to employ
an expert witness to rebut A.P.’s and S.P’s testimony; and, 5) failed to discredit
certain testimony of A.P. and S.P. The State appealed the district court’s ruling.
II
This appeal involves the review of a state court habeas decision and it is
governed by the Antiterrorism and Effective Death Penalty Act (AEDPA). We
may only grant relief if the state court’s decision “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), “or was based
on an unreasonable determination of the facts” in light of the state court record.
28 U.S.C. § 2254(d)(2). Because the present matter involves allegations of
ineffective assistance of counsel our analysis centers on § 2254(d)(1). Gregory v.
Thaler, 601 F.3d 347, 351 (5th Cir. 2010) (“Claims of ineffective assistance of
counsel involve mixed questions of law and fact and are governed by §
2254(d)(1).”).
A state court’s decision is contrary to clearly established Supreme Court
precedent when it “relies on legal rules that directly conflict with prior holdings
of the Supreme Court or if it reaches a different conclusion than the Supreme
Court on materially indistinguishable facts.” Busby v. Dretke, 359 F.3d 708, 713
(5th Cir. 2004). Under § 2254(d)(1), “‘an unreasonable application of federal law
is different from an incorrect application of federal law.’” Harrington v. Richter,
131 S. Ct. 770, 785 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)).
An unreasonable application of clearly established federal law “identifies the
correct governing legal principle from [the Supreme Court’s] decisions but
unreasonably applies that principle to the facts” of a case. Williams v. Taylor,
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529 U.S. 362, 413 (2000). Thus, a state court’s application of federal law may be
considered reasonable even when the state court has erroneously interpreted or
applied Supreme Court precedent.
In reviewing the state court’s denial of habeas relief, “we examine factual
findings for clear error,” and review de novo “questions of law and mixed
questions of law and fact.” Gregory, 601 F.3d at 352. The state court’s factual
determinations are “presumed to be correct” and the petitioner must rebut this
presumption with “clear and convincing evidence.” Wesbrook v. Thaler, 585 F.3d
245, 251 (5th Cir. 2009) (citing 28 U.S.C. § 2254(e)(1)).
III
The State contends that the district court erred by concluding it was not
constrained by 28 U.S.C. § 2254(e)(2) and could conduct an evidentiary hearing
to develop the factual basis of Pape’s claim. The State also alleges that the
district court erred by relying on evidence from this hearing to conclude that
Pape’s trial counsel had violated Pape’s constitutional right to effective
representation.
The Supreme Court has recently clarified the evidentiary scope for a
reviewing court’s habeas analysis under § 2254(d)(1). See Cullen v. Pinholster,
131 S. Ct. 1388 (2011). Before Pinholster, federal courts generally relied on §
2254(e)(2) to determine whether an evidentiary hearing was appropriate in a
habeas case. Section 2254(e)(2) prohibits a district court from holding an
evidentiary hearing to develop the factual basis of a claim previously asserted
in state court unless a petitioner’s claims meets certain exceptions. Pinholster,
131 S. Ct. at 1400–01. In Pinholster, the Court held that § 2254(e)(2) was not
applicable to § 2254(d)(1) petitions such as Pape’s. Id. at 1398, 1400–01.
Instead, the Court analyzed the language of § 2254(d)(1) and held that habeas
“review under § 2554(d)(1) is limited to the record that was before the state court
that adjudicated the claim on the merits.” Id. at 1398. The Court concluded that
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§ 2254(d)(1) bars a district court from conducting such an evidentiary hearing
because the statute “requires an examination of the state court decision at the
time it was made,” which limits the record under review to “the record in
existence at that same time i.e., the record before the state court.” Id.
Here, the district court concluded that § 2254(e)(2) allowed for an
evidentiary hearing so Pape could “fully develop his claim that trial counsel
rendered ineffective assistance.” The district court then relied on evidence from
that hearing to grant Pape’s petition. Under Pinholster, however, the district
court erred by conducting the evidentiary hearing and by relying on evidence
from that hearing to conclude that the state habeas court had unreasonably
applied Strickland. Pape’s federal habeas petition, which alleges ineffective
assistance of counsel, must be adjudicated under § 2254(d)(1) and Pape “must
overcome the limitation of § 2254(d)(1) on the record that was before the state
court.” Pinholster, 131 S. Ct. at 1400.
IV
Under a de novo standard of review we are free to analyze the state habeas
court’s ruling ourselves instead of remanding the case to the district court. Ladd
v. Cockrell, 311 F.3d 349, 357 (5th Cir. 2002). For ineffective assistance of
counsel claims, a defendant must meet the standard established in Strickland
by showing that “counsel’s performance was deficient and that the deficiency
prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003). To
establish deficient conduct by counsel, a defendant must show “that counsel
made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at
687. When evaluating an ineffective assistance of counsel claim, we afford
counsel the “strong presumption” that counsel’s representation fell within a
“wide range” of “reasonable professional assistance.” Richter, 131 S. Ct. at 787
(internal quotations and citations omitted). Once a defendant proves deficient
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conduct by counsel, the defendant must then demonstrate “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability” requires “a ‘substantial’ not just a ‘conceivable,’
likelihood of a different result.” Pinholster, 131 S. Ct. at 1403 (quoting Richter,
131 S. Ct. at 791). In a habeas case where a defendant alleges ineffective
assistance of counsel, the “pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from
asking whether defense counsel’s performance fell below Strickland’s standard.”
Richter, 131 S. Ct. at 785. Under this standard, we afford the state court’s
analysis “a deference and latitude that are not in operation when the case
involves review under the Strickland standard itself.” Id.
Before the state habeas court, Pape argued that his trial counsel had
ineffectively represented him. The state habeas court denied the petition,
concluding that counsel had not acted deficiently because the acts complained
of were the result of a reasonable trial strategy.
A
Pape claims that his trial counsel failed to investigate potential witnesses
and were deficient by not having character witnesses testify during trial.
Under the Supreme Court’s precedent, “an attorney’s strategic choices,
usually based on information supplied by the defendant and gathered from a
thorough investigation of the relevant law and facts, ‘are virtually
unchallengeable.’” Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) (quoting
Strickland, 466 U.S. at 691). While an attorney must engage in a reasonable
amount of pretrial investigation, “the reasonableness of an attorney’s
investigation may critically depend on the information forwarded by the
defendant and the defendant’s own strategic decisions about his
representations.” Bryant, 28 F. 3d at 1415.
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In state court, Pape submitted affidavits from friends and extended family
members who stated that if counsel had tried to contact them before trial, they
would have testified about Pape’s good character or A.P.’s questionable
credibility. Pape’s counsel asked him for the names of potential defense
witnesses prior to trial. But Pape failed to supply counsel with the names of the
witnesses who later stated that they would have testified about A.P.’s credibility
and Pape’s character. This fact is key to our determination that Pape’s failure
to investigate claim fails.
In Bryant, we considered a similar scenario in which a defense attorney
asked his client for the names of alibi witnesses and the client failed to supply
the requested information until a hearing that occurred shortly before trial. 28
F.3d at 1415–18. We held that prior to the client’s disclosure, counsel’s failure
to investigate these unknown witnesses “did not amount to ineffective
assistance.” Id. at 1415. Similarly, Pape’s trial counsel was unaware of former
friends or extended family members who could testify about Pape’s character
and A.P.’s lack of credibility. Counsel’s failure to locate and interview these
individuals, therefore, does not constitute ineffective assistance.
Pape’s failure to investigate claim fails for a second reason: counsel did not
investigate potential character witnesses because testimony about Pape’s good
character would interfere with counsel’s trial strategy and, ultimately, would not
benefit Pape. See Perez v. Texas, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010)
(“[F]ailure to call witnesses at the guilt-innocence and punishment stages is
irrelevant absent a showing that . . . appellant would benefit from their
testimony.” (internal citation and quotation marks omitted)). Pape’s attorneys
believed that if the jury learned of the pending child pornography charge, jurors
would automatically assume that Pape had committed the sexual assault.
Pape’s attorneys sought to prevent the jury from learning about the pending
child pornography charge “at all costs.” This strategy limited counsel’s options
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for witnesses because in Texas criminal proceedings, if a defendant creates the
impression to jurors that he is a “law abiding” citizen, the State may put forth
evidence to rebut this impression. Delk v. State, 855 S.W.2d 700, 704 (Tex. Crim.
App. 1993). If counsel attempted to portray Pape as an individual with good
character, the prosecution could have introduced evidence of the child
pornography charge. See id. at 704. Placing witnesses on the stand to testify
about Pape’s character would be inconsistent with counsel’s strategy. The state
habeas court, therefore, did not unreasonably apply Strickland by deciding that
counsel had adopted a reasonable trial strategy and had not acted deficiently by
not investigating potential character witnesses and by not offering the testimony
of character witnesses.
B
Similarly, the state court did not unreasonably apply Strickland when that
court concluded counsel had not acted deficiently by declining to rely on lay and
expert witness testimony to impeach A.P.
Counsel’s ability to proffer witness testimony that challenged A.P.’s
credibility and truthfulness was limited due to the strategy of preventing the
jury from learning about the child pornography charge. Under the Texas Rules
of Evidence, evidence of other crimes, wrongs, or acts may be admitted in a
sexual assault case to rebut a defendant’s theories that accusations against him
are false, made in retaliation, or that he is being framed. Bass v. State, 270
S.W.3d 557, 562 & n.6, 563 (Tex. Crim. App. 2008); Powell v. State, 63 S.W.3d
435, 438–40 (Tex. Crim. App. 2001). The state court determined that under this
principle, counsel made a reasonable strategic decision not to impeach A.P.’s
credibility with lay witness testimony because such testimony would have
permitted prosecutors to introduce evidence of the child pornography charge,
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which would be contrary to counsel’s overall trial strategy.1 See Bass, 270
S.W.3d at 562–63. The state court also concluded that under Texas evidentiary
rules, if the defense had allowed an expert witness to testify as to whether A.P.
was untruthful, this testimony would allow prosecutors to introduce evidence of
the child pornography charge to rebut the theory that A.P. had lied or that A.P.
was merely trying to retaliate against Pape. Bass, 270 S.W.3d at 562 & n.6;
Moses v. State, 105 S.W.3d 622, 626–27 (Tex. Crim. App. 2003). The state court
concluded that counsel had acted reasonably as Texas evidentiary rules and
counsel’s strategy prevented the defense from proffering an expert witness to
rebut A.P.’s testimony. We defer to the state court’s interpretation of Texas law;
our function in this habeas proceeding is to analyze whether a state court
reasonably applied federal law. Charles v. Thaler, 629 F.3d 494, 500–01 (5th
Cir. 2011). Under federal standards for what constitutes deficient conduct, the
state habeas court did not unreasonably apply Strickland to determine that
counsel had acted reasonably.
C
Pape also asserts that his counsel ineffectively represented him by
expanding the scope of A.P.’s testimony to include negative allegations about
Pape and other individuals. In addition, Pape alleges that counsel acted
deficiently by failing to object to portions of A.P.’s direct testimony.
During trial, Pape’s counsel asked A.P. about a variety allegations she had
made in the past, about which the prosecution had not inquired. This testimony
included A.P.’s accusations that Pape had tried to poison her and that various
individuals had attempted to harm her physically. Defense counsel also asked
A.P. about her allegation that she had once witnessed Pape inappropriately
touching S.P. when the girl was an infant. Pape’s attorneys stated that their
1
Similarly, counsel’s tactical decision also eliminated the need for an investigation into
possible lay witnesses who could rebut A.P.’s statements.
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strategy was to “let everything in” so the jury would become “fatigued” by A.P.’s
strange accusations and conclude that A.P. lacked credibility or was mentally ill.
Because of this strategy, counsel stated they did not object to A.P.’s various
allegations or A.P.’s bolstering of S.P.’s credibility. Rather, counsel permitted
this testimony to go forward, hoping that the jury would hear the various
accusations and conclude that A.P. was untruthful and mentally unstable.
Similarly, during cross examination, Pape’s counsel stated they had questioned
A.P. about her various allegations in hopes that the jury would believe she was
lying or mentally ill. This line of questioning also introduced evidence against
Pape that would otherwise be inadmissible. Despite this fact, the state court
determined that counsel’s tactical decisions about A.P.’s testimony constituted
a reasonable strategy.
Based on the record before us, the state court did not err by concluding
that counsel had not acted deficiently. In part, this is because a “conscious and
informed decision on trial tactics and strategy cannot be the basis of
constitutionally ineffective assistance of counsel unless it is so ill chosen that it
permeates the entire trial with obvious unfairness.” Richards v. Quarterman,
566 F.3d 553, 564 (5th Cir. 2009) (internal quotations and citations omitted).
That did not occur here as Pape’s counsel developed a reasonable trial strategy,
vigorously cross-examined witnesses during trial, and made difficult strategic
decisions about how best to defend Pape. In similar cases, we have deferred to
counsel’s judgment about the presentation and questioning of witnesses when
such choices are the result of a “conscious and informed decision on trial tactics.”
Cotton v. Cockrell, 343 F.3d 746, 752–53 (5th Cir. 2003) (giving deference to
decision not to present two witnesses as part of counsel’s decision to pursue a
different defense); see also Green v. Johnson, 116 F.3d 1115, 1121–23 (5th Cir.
1997) (discussing counsel’s decision not to present an expert defense witness
after choosing a different course of strategy). Although one may want to
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question some of the tactical decisions made by Pape’s counsel, we may not, in
hindsight, second-guess counsel’s strategy regarding A.P.’s testimony merely
because an alternative course of action existed during trial. Green, 116 F.3d at
1122. The record contains sufficient evidence to demonstrate that counsel’s
decisions about A.P.’s testimony resulted from an informed trial strategy and fell
within the wide range of trial tactics that constitute reasonable assistance.
Richards, 566 F.3d at 564. Accordingly, the state court did not unreasonably
apply Strickland to these claims.
D
Pape alleges that his counsel was deficient because the attorneys failed to
object to inadmissible medical testimony during the direct questioning of Dr.
Coffman, the state’s expert witness. But, this claim, like Pape’s other
allegations, fails because counsel’s acts were the result of a deliberate trial
strategy.
We must be highly deferential of counsel’s conduct and maintain a strong
presumption that counsel’s trial strategy fell within the wide range of reasonable
professional assistance. Wilkerson v. Collins, 950 F.2d 1054, 1064 (5th Cir.
1992) (internal quotations and citations omitted). Moreover, we have
consistently found counsel’s decisions regarding examination and presentation
of witnesses and testimony to fall within this category of trial strategy which
enjoys a strong presumption of effectiveness. See Johnson v. Dretke, 394 F.3d
332, 337–38 (5th Cir. 2004) (finding counsel’s decision not to investigate and
present a witness’s testimony to the jury in favor of an alternative defense
acceptable despite the fact the alternative defense “was not ultimately
prevailing”); Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983) (affirming
conviction where the convicted argued counsel failed to attack a prosecution
witness’s credibility).
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Counsel sought to attack Dr. Coffman’s professional credibility by first
allowing her to testify, without objection, as to why she thought S.P. was
sexually assaulted. Then, counsel relied on this testimony in questioning her as
to how she ultimately reached this conclusion when it was not directly supported
with physical evidence as Dr. Coffman had stated that the findings of S.P.’s
physical exam did not include direct evidence of trauma and were “normal and
consistent” with a medical finding of no sexual abuse. Had counsel objected to
Dr. Coffman’s initial testimony, it is unclear whether they could have elicited
such evidence during cross-examination. Certainly, another attorney may have
pursued a different strategic course, but counsel’s acts were the result of a trial
strategy that fell within the wide range of acceptable conduct. See Johnson, 394
F.3d at 337; Green, 116 F.3d at 1122. Thus, the state court did not unreasonably
conclude that under Strickland this claim failed.
E
Pape’s final claim is that the state court erred by concluding that counsel
had not acted deficiently when counsel referred to Pape as a “pedophile” and did
not object to certain testimony during the sentencing portion of trial.2 We have
encountered similar challenges before. In Dowthitt v. Johnson, 230 F.3d 733
(5th Cir. 2000), the prisoner alleged that his counsel was deficient during the
penalty phase of his trial, id. at 751. Dowthitt’s counsel remarked to the jury
that his client, convicted of aggravated sexual assault and capital murder, was
“diseas[ed]” which resulted in him acting in “a frenzy, like the feeding of a shark
or something.” Id. This Court held that counsel’s statements were part of a
reasoned tactical decision and that such strategic decisions should not be second
guessed under the teaching of Strickland. See id. Similarly, Pape’s counsel at
sentencing was trying to portray Pape as an individual who suffered from a
2
The district court did not consider whether counsel’s representation at sentencing was
constitutionally deficient. We address this claim as Pape properly preserved it.
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treatable mental health affliction. Counsel also stated that they made a tactical
decision not to object to statements from certain prosecution witnesses because
they sought to cross-examine the witnesses and have them admit that sex
offenders, while not curable, could be successfully treated. Furthermore, counsel
referred to Pape as a “pedophile” in the context of portraying him as someone
suffering from a treatable disease. This Court’s treatment of Dowthitt is
analogous to the instant case. The strong presumption that counsel’s challenged
conduct was the product of reasoned trial strategy is the same at both the guilt-
innocence and sentencing phases of criminal trial. See Wilkerson, 950 F.2d at
1065. And, we continue to extend highly deferential treatment to counsel’s
sentencing strategy and tactical decisions. See, e.g., id. (“[F]ailure to present
mitigating evidence, if based on an informed and reasoned practical judgment,
is well within the range of practical choices not to be second-guessed.” (citations
and internal quotations omitted)); see also West v. Johnson, 92 F.3d 1385,
1408–09 (5th Cir. 1996); Andrews v. Collins, 21 F.3d 612, 623–25 (5th Cir. 1994);
Stringer v. Jackson, 862 F.2d 1108, 1116 (5th Cir. 1988), vacated in part, 503
U.S. 222 (1992). The state habeas court determined that Pape’s counsel’s
strategy was reasonable and did not constitute ineffective assistance. Based on
the record, the state court’s determination was “at least minimally consistent
with the facts and circumstances of the case.” Neal v. Puckett, 239 F.3d 683, 696
(5th Cir. 2001) (quoting Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997)).
The state court did not unreasonably apply Strickland to determine that this
claim failed because counsel’s trial strategy fell within an “objective standard of
reasonableness.” 466 U.S. at 688.
V
Accordingly, we REVERSE the district court’s judgment and DENY Pape’s
petition.
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