IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30317
Summary Calendar
JAMES E. SOLER,
Petitioner-Appellant,
versus
KELLY WARD, Warden,
Wade Correctional Center,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(99-CV-2440-H)
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November 21, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant James E. Soler, a Louisiana inmate,
appeals the denial of his 28 U.S.C. § 2254 application for a writ
of habeas corpus. Soler contends that his trial counsel rendered
ineffective assistance. In his habeas application, Soler advanced
nine grounds for his ineffective assistance claim and also argued
that counsel’s cumulative errors were prejudicial. Although the
district court issued a broad certificate of appealability, on
appeal Soler argues only that he received ineffective assistance by
virtue of counsel’s (1) failure to conduct a reasonable
*
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this opinion should not be published and is not precedent except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.
investigation before making strategic decisions, (2) failure to
object to “other crimes” testimony, and (3) alleged cumulative
errors, including counsel’s failure to object to testimony as to
the ultimate issue in the case and his handling of the closing
argument. Soler has waived the remaining claims raised in his
application by failing to brief them. See Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993); Fed. R. App. P. 28(a).
We disagree with Soler’s contention that the state appellate
court failed to reach the merits of his claim as it pertains to
counsel’s pre-trial investigation or failure to continue his
objection to “other crimes” evidence. Therefore the state court’s
adjudication of these issues is entitled to deference under 28
U.S.C. § 2254(d). After a thorough examination of the trial record
and the record of the state evidentiary hearing, we are persuaded
that the state court’s adjudication of these issues was not
contrary to or an unreasonable application of clearly established
federal law. Neither can we say that the state court’s decision
was based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceeding. See 28
U.S.C. § 2254(d)(1),(2).
There is a strong presumption that strategic or tactical
decisions made after an adequate investigation fall within the wide
range of objectively reasonable professional assistance.
Strickland v. Washington, 466 U.S. 668, 690 (1984). Such decisions
are "virtually unchallengeable." Id. at 691. Strategic choices
made after less than complete investigation are reasonable only to
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the extent that reasonable professional judgments support the
limitations on investigation. Id. at 690. Counsel’s decision to
base his defense on the proposition that the victim was consciously
lying to gain love and attention was the considered and reasonable
judgment of counsel. Therefore, counsel’s decisions not to
investigate exhaustively the reports of prior abuse of the victim,
which in his view would have engendered the jury’s sympathy, or to
develop other theories inconsistent with his chosen strategy, were
reasonable. As for counsel’s failure to object to testimony
regarding alleged “other crimes” evidence, we note that the state
appellate court held that the testimony did not constitute
prohibited “other crimes” evidence and that counsel’s failure to
object was not deficient performance and did not constitute
ineffective assistance of counsel. See State v. Soler, 636 So. 2d
1069, 1078 (La. App. 5th Cir. 1994). As the failure to raise a
meritless objection is not ineffective assistance, see Clark v.
Collins, 19 F.3d 959, 966 (5th Cir. 1994), we conclude that the
state court did not unreasonably apply clearly established federal
law in denying the requested relief.
The state appellate court also concluded that Dr. Clarence
Haydel’s opinion testimony as to the truthfulness of the abuse
allegations was not inadmissible, and Soler fails to show that the
testimony would have been excluded had his attorney lodged a timely
objection. Counsel’s closing argument was not constitutionally
defective merely because he failed to mention a statement made by
the victim’s mother. Neither was counsel’s summation an
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ineffective presentation of the defense’s theory of the case.
“[A]ny deficiencies in counsel’s performance must be prejudicial to
the defense in order to constitute ineffective assistance under the
Constitution.” Strickland, 466 U.S. at 692. As for counsel’s
failure to object to Dr. Haydel’s hearsay testimony regarding the
victim’s reports of abuse, we agree with the conclusions of the
state appellate court and the federal district court that counsel’s
performance was not deficient: His failure to object was consistent
with his trial strategy.
Finally, we need not decide whether the state court
adjudicated the issue of alleged cumulative error on the merits
because Soler has not shown that counsel committed any cognizable
error whatsoever. In essence, there were no errors to cumulate.
See Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996)
(“[m]eritless claims or claims that are not prejudicial cannot be
cumulated, regardless of the total number raised”).
As Soler has not shown entitlement to relief, the decision of
the district court is
AFFIRMED.
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