IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40517
Summary Calendar
LEE-AUNDRY LAMON GORDON,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:01-CV-334
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December 27, 2002
Before JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Lee-Aundry Lamon Gordon appeals the district court’s denial
of his claim in his 28 U.S.C. § 2254 petition that counsel was
ineffective when he elicited Gordon’s confession to the offense
of aggravated robbery. Gordon argues that the entire trial
strategy of seeking a conviction for the lesser included offense
of attempted aggravated robbery was destroyed by this confession.
The record does not support this contention. On direct appeal,
*
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that this opinion should not be published and is not precedent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. 02-40517
-2-
Gordon argued that he was entitled to a jury instruction for the
lesser included offense of attempted aggravated robbery. The
state court determined that because the evidence supported the
jury’s determination that he had committed aggravated robbery, he
was not entitled to such an instruction. Thus, Gordon’s argument
that he was prejudiced by not being able to make a case for
attempted aggravated robbery is meritless. Gordon has not shown
that but for counsel’s eliciting a judicial confession, the
result of the proceedings would have been different. Strickland
v. Washington, 466 U.S. 668, 694 (1984). Moreover, the record
indicates that counsel was trying to show that Gordon did not
have the requisite intent to rob and was therefore guilty only of
attempted aggravated robbery. Under the deferential standard by
which counsel’s actions at trial are judged, Gordon has not shown
that counsel’s conduct fell outside the wide range of reasonable
professional assistance. Strickland, 466 U.S. at 689.
The same arguments raised herein were rejected by the state
court when it denied Gordon’s habeas application. Gordon has not
attempted to show, now has he shown, that the state court’s
decision (1) was contrary to, or an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court; or (2) was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding. 28 U.S.C. § 2254(d)(1) & (2). The denial of his
28 U.S.C. § 2254 petition is therefore AFFIRMED.