United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 7, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 05-30152
_______________________
ROGER COMEAUX,
Respondent-Appellee,
versus
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Petitioner-Appellant,
On Appeal from the United States District Court
for the Eastern District of Louisiana
No. 2:03-CV-1928
Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.
PER CURIAM:*
Following his conviction for simple burglary of an
inhabited dwelling, the district court granted Roger Comeaux habeas
corpus relief under 28 U.S.C. § 2254 based on ineffective
assistance of counsel. As the district court overlooked the
requirements of AEDPA, it applied the incorrect standard of review;
as the record does not support Comeaux’s claims, we REVERSE.
*
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opinion should not be published and is not precedent except under the limited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.
I. BACKGROUND
In July 1998, Roger Comeaux was arrested at an apartment
complex in New Orleans, Louisiana. After responding to a call
reporting suspicious activity, the police found Comeaux carrying a
white sack and attempting to scale a wall of the complex. The sack
was later found to contain items from a ransacked apartment, which
a witness had seen him leaving.
Comeaux was charged with simple burglary of an inhabited
dwelling in violation of LA. REV. STAT. ANN. § 14:62.2 (1998)1 and
with being a multiple offender pursuant to LA. REV. STAT. ANN.
§ 15:529.1 (1998). Against the advice of counsel, he waived his
right to a jury and proceeded to a bench trial. At trial, Comeaux
took the stand and testified that he did not have permission to
enter the apartment complex. He did not admit, however, to enter-
ing the burglarized apartment unit itself.
The judge convicted Comeaux of simple burglary, noting
that Comeaux’s testimony helped prove one of the elements of the
crime: unauthorized entry. The owner of the burglarized apartment
had not testified, making the element more difficult to prove. The
judge then sentenced Comeaux to forty years in prison.
On direct appeal, Comeaux challenged both the trial
court’s finding that he had knowingly and intelligently waived his
1
Simple burglary is defined as “unauthorized entry of any inhabited
dwelling, house, apartment or other structure used in whole or in part as a home
or place of abode by a person or persons with an intent to commit a felony or any
theft therein . . . .”
2
right to a jury trial and his adjudication as a multiple offender.
Both grounds were denied. Comeaux then sought state post-
conviction relief, contending that his trial counsel was ineffec-
tive for failing to move for an acquittal at the close of the
state’s case and for calling him to testify without proper
preparation. The trial court denied the motion, finding that trial
counsel had diligently represented his client. The Louisiana
appellate courts affirmed.
Comeaux then filed a federal application for habeas
corpus arguing, among other things, that his trial counsel was
ineffective for calling him to testify at trial. The magistrate
judge recommended denying all relief, but the district judge found
that the decision to call Comeaux as a witness was problematic;
it was the only means the court could determine by direct evidence
whether Comeaux had permission to be in the apartment, as the
victim did not testify. The judge sua sponte ordered an
evidentiary hearing to determine if there was a legitimate tactical
reason for counsel to call him to the stand. After the hearing,
the district court granted Comeaux’s § 2254 application, finding
that whether or not counsel recommended or opposed Comeaux’s trial
testimony, he had not meaningfully dissuaded him from testifying or
properly prepared him. As Comeaux’s testimony was the primary way
that the state proved unauthorized entry, the court found his
counsel to be ineffective. The State appeals.
3
II. DISCUSSION
To prove ineffective assistance of counsel, a defendant
must show both that “counsel’s representation fell below an
objective standard of reasonableness” and “that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct.
2052 (1984). Scrutiny of counsel’s performance must be “highly
deferential,” avoiding the “distorting effects of hindsight.” Id.
at 689, 104 S. Ct. at 2065. Furthermore, “[b]ecause advocacy is an
art and not a science, and because the adversary system requires
deference to counsel’s informed decisions, strategic choices must
be respected in these circumstances if they are based on
professional judgment.” Id. at 681, 104 S. Ct. at 2061.
Additionally, “[i]f the facts adduced at trial point so over-
whelmingly to the defendant’s guilt that even the most competent
attorney would be unlikely to have obtained an acquittal, then the
defendant’s ineffective assistance claim must fail.” Jones v.
Jones, 163 F.3d 285, 304 (5th Cir. 1998) (quoting Green v. Lynaugh,
868 F.2d 176, 177 (5th Cir. 1989)).
In addition to the demanding Strickland test, a
petitioner must overcome the standard of review set out the Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) for
mixed questions of law and fact. Under this standard, state court
4
determinations receive deference unless they were “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); see also Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495 (2000).2
Comeaux cannot prove either prong of the Strickland test,
let alone the unreasonableness of the state court judgment.
Comeaux’s complaint is primarily that his attorney allowed him to
take the stand without properly advising him of his rights and the
potential consequences of his testimony. However, he had a lengthy
criminal history; his prior burglary convictions resulted in his
sentence as a fourth-felony habitual offender. See State v.
Comeaux, 774 So.2d 322 (La. App. 2000). He had to be familiar with
the risks of testifying in court and incriminating himself.
Moreover, counsel testified that he advised Comeaux
against taking the stand, and Comeaux disregarded his advice.3
Comeaux contests the advice he was given by his attorney, but the
state court’s credibility choice of counsel over the defendant is
2
In his brief, Comeaux claims he need not meet the strict AEDPA
standard because the state court did not make “findings.” The case he cites,
however, only establishes that AEDPA standards of review do not apply when the
state court decision is not “on the merits.” Henderson v. Cockrell, 333 F.3d 592
(5th Cir. 2003). Here, the state trial court clearly ruled on Comeaux’s precise
claim. This court reviews that decision of the state courts, regardless of the
precision of its findings. See, e.g., Singleton v. Johnson, 178 F.3d 381, 384
(5th Cir. 1999)(finding AEDPA applied when trial court ruling dealt with case on
the merits and state supreme court subsequently denied relief in summary fashion,
without independent findings).
3
Comeaux also disregarded counsel’s advice in electing a bench trial,
foregoing his right to a jury trial.
5
not unreasonable, nor did Comeaux satisfy AEDPA’s standard for
disregarding state factual findings. See 28 U.S.C. § 2254(e)(1).
In any event, his testimony was entirely unnecessary for
guilt, because unauthorized entry can be proven entirely by
circumstantial evidence. See, e.g., State v. Reed, 712 So.2d 572,
581-82 (La. App. 1998); State v. Harper, 480 So.2d 483, 486 (La.
App. 1985); State v. Torres, 470 So.2d 319, 322-23 (La. App. 1985);
State v. Credit, 455 So.2d 1238, 1239 (La. App. 1984). In this
case, the evidence of his guilt was substantial. There was
evidence of his presence in the ransacked apartment, he attempted
to flee, he possessed contraband from the apartment, and the police
arrived in response to a call of suspicious activity. As the
district judge acknowledged when discussing the attorney’s failure
to request a motion for an acquittal, this is sufficient evidence
of the element of unauthorized entry. See Comeaux v. Ieyoub,
2004 WL 1698676, at *2 (E.D. La. July 26, 2004).
The district judge noted that trial counsel “urged him to
testify, unprepared, in his own behalf.” Id. at *3. However,
there was evidence that the attorney advised him not to testify.
Additionally, the district judge stated that “whether that cir-
cumstantial evidence, absent Petitioner’s self-incriminating
testimony, would be sufficient to convict is subject to debate.”
Id. (emphasis added). These conclusions are not only inconsistent
with the state court findings, to which we must defer, but are
6
insufficient to meet Strickland’s test, particularly given the high
deference that must be paid to the state court ruling under AEDPA.4
III. CONCLUSION
The district court failed to discuss AEDPA’s deferential
standards of review or explain why Comeaux’s evidence and arguments
overcame such heavy burdens. Because Comeaux’s claim fails under
AEDPA, the district court erred in granting Comeaux § 2254 relief.
Its judgment is REVERSED.
4
We further note that the district court erred in granting an
evidentiary hearing. Under 28 U.S.C. § 2254(e)(2), an evidentiary hearing is
only appropriate when “(A) the claim relies on--(i) a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable; or (ii) a factual predicate that could not have been
previously discovered through the exercise of due diligence; and (B) the facts
underlying the claim would be sufficient to establish by clear and convincing
evidence that but for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.” Comeaux clearly cannot
meet these requirements.
7