IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-30799 FILED
Summary Calendar August 7, 2007
Charles R. Fulbruge III
TORIANO JORDAN Clerk
Petitioner-Appellant
v.
TIM WILKINSON, Warden
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:05-CV-344
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Toriano Jordan, Louisiana prisoner # 339011, appeals the district court’s
denial of his 28 U.S.C. § 2254 application challenging his conviction for
possession with intent to distribute cocaine. The district court granted Jordan
a certificate of appealability on the issue of whether he received ineffective
assistance of counsel.
*
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should not be published and is not precedent except under the limited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. 06-30799
Federal habeas relief may not be granted upon any claim that was
“adjudicated on the merits in State court” unless the adjudication “resulted in
a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States” or “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” § 2254(d)(1) & (2); see Williams v. Taylor, 529 U.S. 362, 409 (2000).
While Jordan argues that his counsel was ineffective for not filing a motion
to suppress, this argument is subsumed within his argument that his counsel
failed to properly investigate his case. The district court denied this claim on the
ground that Jordan had not shown that his counsel’s failure to file a motion to
suppress prejudiced him, and Jordan has not challenged this determination.
Accordingly, Jordan has waived any independent claim that his counsel was
ineffective for not filing a motion to suppress. See Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (appellant’s failure to
identify any error in the district court’s analysis is the same as if the appellant
had not appealed that judgment).
Jordan argues that his counsel was ineffective for not objecting to an
allegedly improper and prejudicial comment made by the trial judge. The record,
however, shows that the challenged comment by the trial judge was simply a
statement that certain evidence was impeachment evidence made during a
ruling on an objection, not a statement that Jordan had been impeached as a
witness. Accordingly, the statement was not an improper comment on Jordan’s
testimony under Louisiana law. See State v. Vernon, 2 So. 2d 629, 632 (La.
1941). As any objection to the statement would have been futile, Jordan has not
shown that his counsel was ineffective for not objecting or that the state court’s
denial of this claim was an unreasonable application of clearly established
federal law. See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994); § 2254(d)(1).
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No. 06-30799
Jordan argues that his counsel was ineffective for not objecting to hearsay
testimony. Given the overwhelming evidence against him, Jordan has not
shown that there was a reasonable probability that the result of the trial would
have been different had his counsel objected to the hearsay evidence. See Green
v. Johnson, 160 F.3d 1029, 1040 (5th Cir. 1998). Accordingly, Jordan has not
shown that his counsel was ineffective for not objecting to hearsay testimony or
that the state court’s denial of this claim was an unreasonable application of
clearly established federal law. See id.; § 2254(d)(1).
Jordan asserts that his counsel was ineffective for not informing him of his
correct sentence exposure if he went to trial and not advising him to plead guilty.
Relatedly, he argues that his counsel was ineffective for not investigating the
case properly and learning that the evidence against him was overwhelming. At
the state habeas corpus hearing, however, the prosecutor testified that he
informed Jordan of his correct sentence exposure during plea negotiations, and
Jordan’s counsel stated that he thought he had properly informed Jordan. Given
this testimony, Jordan has not shown that the state court’s denial of this claim
was based upon an unreasonable interpretation of the facts. See § 2254(d)(2).
As we are reluctant to consider the failure of an attorney to advise his client to
plead guilty deficient performance, Jordan has not shown that the state court’s
denial of this claim was an unreasonable application of clearly established
federal law. See United States v. Faubion, 19 F.3d 226, 230 (5th Cir. 1994);
§ 2254(d)(1).
AFFIRMED.
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