Schaetzle v. Cockrell

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS August 15, 2003

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk

No. 03-50215

DAVID SCHAETZLE,

Petitioner-Appellee,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

Respondent-Appellant.

Appeal from the United States District Court
for the Western District of Texas

Before JOLLY, WIENER, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Texas prisoner David Schaetzle was granted conditional federal

habeas relief based on his claim of ineffective assistance of

counsel on direct appeal. Consistent with the standard of review

mandated by the Antiterrorism and Effective Death Penalty Act of

1996, 28 U.S.C. § 2241 et. seq., at issue is whether the Texas

Court of Criminal Appeals, without an opinion, unreasonably applied

clearly established federal law in denying the following state

habeas claim: that, on direct appeal, Schaetzle’s counsel was

ineffective by failing to challenge the sufficiency of the evidence

for the retributory intent element required by Texas Penal Code §
36.06 (retaliation against public servant). See 28 U.S.C. §

2254(d)(1); e.g., Catalan v. Cockrell, 315 F.3d 491, 493 & n.3 (5th

Cir. 2002) (where no written opinion by state habeas court, we

assume proper law applied and review to determine whether such

application was “objectively unreasonable”). JUDGMENT VACATED;

HABEAS RELIEF DENIED.

I.

While cleaning his cell in the Travis County jail in February

1998, Schaetzle threw a bag of garbage from the upper to the lower

tier of the cell block. As a result, Officer Spriegel ordered

Schaetzle to be locked in his cell earlier than usual; Schaetzle

became angry; the Officer told Schaetzle that, if he failed to

obey, he would receive a 23-hour lockdown as punishment; and the

Officer ordered Schaetzle to meet with him.

After Schaetzle ran to the Officer’s location, he told

Schaetzle to follow him to another area in order to confer. There,

Schaetzle threatened Officer Spriegel by saying he would look him

(the Officer) up “on the outside” when Schaetzle was released in

one month.

Officer Spriegel reiterated to Schaetzle that, if his conduct

continued, he would be locked down for 23 hours. They then walked

toward Schaetzle’s cell unit, with Schaetzle in front. Schaetzle

spun around abruptly. Startled, Officer Spriegel grabbed

Schaetzle’s shirt, attempting to turn him around; Schaetzle struck

2
the Officer; in an attempt both to avoid being struck and to

restrain Schaetzle, the Officer wrapped his arms around Schaetzle;

when Schaetzle continued to strike the Officer, he pushed Schaetzle

away; and another Officer came to the scene and subdued Schaetzle.

Schaetzle was charged with both assault on, and retaliation

against, a public servant. A jury convicted him on the

retaliation, but not the assault, charge. Because of enhancements,

Schaetzle was sentenced to 33-years imprisonment.

On direct appeal, Schaetzle’s counsel presented one issue:

whether the State violated Texas’ mandatory ten-day trial

preparation period, TEX. CODE CRIM. PROC. ANN. § 1.051(e), by making

minor changes to the indictment six days before trial. The Court

of Appeals in Austin affirmed. Schaetzle v. State, No. 03-98-

00668-CR (Tex. App.—Austin 1999) (unpublished). The Texas Court of

Criminal Appeals accepted an out-of-time petition for discretionary

review, but refused review. Schaetzle v. State, PDR No. 0888-00

(Tex. Crim. App. 30 August 2000) (per curiam) (unpublished).

Schaetzle sought state habeas review on a number of issues,

including ineffective assistance of appellate counsel. The habeas

trial court found an evidentiary hearing was unnecessary. (The

State filed an affidavit by Schaetzle’s counsel on direct appeal,

stating she did not believe the evidence was factually or legally

insufficient.) The court found the habeas application “contains no

sworn allegation of fact which ... would render [Schaetzle’s]

3
confinement illegal, and ... [Schaetzle] has not met his burden of

establishing facts which would entitle him to relief”. Ex parte

Schaetzle, No. 98-3739-B (Travis County District Court 15 Oct.

2001).

The Texas Court of Criminal Appeals “denied [the application]

without written order on findings of [the] trial court without a

hearing”. Ex parte Schaetzle, App. No. 30,103-06 (Tex. Crim. App.

21 Nov. 2001) (emphasis added).

Pursuant to 28 U.S.C. § 2254, Schaetzle applied for federal

habeas relief, presenting numerous claims, including two for

ineffective assistance of counsel on direct appeal (appellate

counsel). The magistrate judge recommended denying all claims

except the one for ineffective assistance of counsel (IAC) based on

appellate counsel’s not challenging the sufficiency of the evidence

for the retributory intent element of Texas Penal Code § 36.06.

Schaetzle v. Cockrell, No. A-02-CA-259-JN (W.D. Tex. 19 Dec. 2002)

(Magistrate Judge Report and Recommendation).

The district court adopted the recommendations and granted

conditional habeas relief on the IAC claim concerning appellate

counsel and § 36.06. Id., No. A-02-CA-259-JN (W.D. Tex. 31 Jan.

2003). Habeas relief was granted “unless the state afford[ed]

[Schaetzle] an out-of-time direct appeal with the assistance of

competent counsel for the purposes of raising the legal sufficiency

of the evidence issue [concerning § 36.06]”.

4
 After the district court denied the State’s motion to stay the

judgment, it requested similar relief from our court. We granted

a stay, ordered an expedited appeal, and appointed counsel for

Schaetzle.

II.

In reviewing a ruling on the merits of a habeas claim, the

district court’s findings of fact are reviewed for clear error; its

conclusions of law, de novo. E.g., Foster v. Johnson, 293 F.3d

766, 776 (5th Cir.), cert. denied, 123 S. Ct. 625 (2002). The

heightened standards of the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2241 et seq., apply.

Accordingly, relief cannot be granted unless the challenged state

court proceeding resulted in: (1) “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”, 28 U.S.C. 2254(d)(1); or (2) “a decision that 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)(2).

Only subpart (d)(1) (unreasonable application of clearly

established federal law) is at issue. Under that subpart,

“‘unreasonable’ does not mean merely ‘incorrect’: an application

of clearly established Supreme Court precedent must be incorrect

and unreasonable to warrant federal habeas relief”. Foster, 293

5
F.3d at 776 (emphasis in original) (citing Williams v. Taylor, 529

U.S. 362, 410-12 (2000)).

Because a federal habeas court only reviews the reasonableness

of the state court’s ultimate decision, the AEDPA inquiry is not

altered when, as in this case, state habeas relief is denied

without an opinion. E.g., Santellan v. Cockrell, 271 F.3d 190, 193

(5th Cir. 2001), cert. denied, 535 U.S. 982 (2002). See Neal v.

Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (“It seems

clear to us that a federal habeas court is authorized by [§]

2254(d) to review only a state court's ‘decision,’ and not the

written opinion explaining that decision.”), cert. denied, 123 S.

Ct. 963 (2003). For such a situation, our court: (1) assumes

that the state court applied the proper “clearly established

Federal law”; and (2) then determines whether its decision was

“contrary to” or “an objectively unreasonable application of” that

law. Catalan, 315 F.3d at 493 & n.3 (quotation omitted); see

Robertson v. Cain, 324 F.3d 297, 303 (5th Cir. 2003) (assuming

state court was aware of relevant Supreme Court decisions, although

not cited in its opinion). The magistrate judge’s report and

recommendation, discussing Neal and Catalan (the latter rendered

only the day before the recommendation), recognized this

controlling standard in no-state-opinion cases.

For Schaetzle’s IAC claim concerning appellate counsel, the

applicable “clearly established Federal law as determined by the

6
Supreme Court of the United States” — against which to measure the

state court’s decision — is found in Strickland v. Washington, 466

U.S. 668 (1984) (interpreting Sixth Amendment right to counsel).

E.g., Smith v. Robbins, 528 U.S. 259, 285 (2000) (applying

Strickland to IAC claim concerning appellate counsel). To succeed

in state habeas court on his IAC claim, pursuant to the “clearly

established Federal law” found in Strickland, Schaetzle was

required to show, as discussed infra: (1) appellate counsel’s

performance was deficient; and (2) this performance resulted in

prejudice. Strickland, 466 U.S. at 687.

It bears repeating that the test for federal habeas purposes

is not whether Schaetzle made that showing. Instead, the test is

whether the state court’s decision — that Schaetzle did not make

the Strickland-showing — was contrary to, or an unreasonable

application of, the standards, provided by the clearly established

federal law (Strickland), for succeeding on his IAC claim. Of

course, in reaching our decision, we must consider the underlying

Strickland standards.

Schaetzle was convicted under Texas Penal Code § 36.06, which,

inter alia, prohibits retaliation against a public servant, as

follows:

A person commits an offense if he
intentionally or knowingly harms or threatens
to harm another by an unlawful act: (1) in
retaliation for or on account of the service

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 or status of another as a: (A) public servant
....

(Emphasis added.)

The Texas Courts of Appeals are split in their interpretation

of this statute. Consistent with the language of § 36.06, all of

those courts require showing that the unlawful act was “in

retaliation for or on account of the service or status” of a public

servant (retributory intent element). (As discussed infra, § 36.06

was amended in 1997. Before then, § 36.06 proscribed retaliation

only on the account of another’s “service”.)

Certain of those courts require that this retributory intent

be based on duties “already performed” by the public servant; on

the other hand, others allow the retributory intent to be formed

contemporaneously with the discharge of those duties. See Wright

v. State, 979 S.W.2d 868, 869 (Tex.App.—Beaumont 1998) (noting

Riley v. State, 965 S.W.2d 1, 2 (Tex.App.—Houston 1997), required

“a retributive attack for duties already performed”, while Stafford

v. State, 948 S.W.2d 921, 923-24 (Tex.App.—Texarkana 1997), and

McCoy v. State, 932 S.W.2d 720, 724 (Tex.App.—Fort Worth

1996), upheld convictions based upon a single incident); Id. at

870-71 (Burgess, J. dissent) (phrasing distinction as whether §

36.06 requires an unlawful act while a public servant discharged

duties as opposed to because they had been performed).

8
 Although the Austin Court of Appeals has not ruled on the

already-performed-vel-non issue, it has recognized this question

exists regarding the retributory intent element. Mullins v. State,

No. 03-97-00172-CR, 1998 WL 393983 (Tex. App.—Austin 16 July 1998)

(unpublished). Schaetzle contends his counsel on direct appeal

should have raised the sufficiency of evidence on this element

because the issue was “open” in the Austin Court of Appeals.

In both the state and federal proceedings, the State submitted

the earlier-referenced affidavit from Schaetzle’s appellate

counsel, which states: “[Appellate counsel] believed (and still

believe[s]) the record contains legally and factually sufficient

evidence to support [Schaetzle’s] conviction of retaliation so

[she] did not raise a sufficiency point on appeal”; the indictment-

modification point raised on appeal “was the only error which [she]

believed was supported by the record”; and “[o]ther than [an] error

which was corrected by a previous writ, [she] believe[s]

[Schaetzle] was well represented by [her] on appeal”.

As noted, the state habeas trial court found an evidentiary

hearing was not necessary and recommended:

[T]he instant Application contains no sworn
allegation of fact which requires resolution
or which, if true, would render Applicant’s
confinement illegal, and further finds that
the applicant has not met his burden of
establishing facts which would entitle him to
relief.

9
As also noted, the Court of Criminal Appeals denied the application

“without written order on findings of [the] trial court without a

hearing”.

A.

For the IAC claim, in state habeas court, both Strickland

prongs had to be satisfied: deficient performance and prejudice.

In order for the state habeas court to have found deficient

performance, Schaetzle’s appellate counsel had to have been

objectively unreasonable in failing to present the sufficiency

issue. Robbins, 528 U.S. at 285. “Judicial scrutiny of counsel’s

performance [is] highly deferential.” Strickland, 466 U.S. at 689.

There is a strong presumption that counsel’s actions are

reasonable; accordingly, counsel’s conduct is evaluated from her

perspective at the time of appeal. Id.

Counsel need not raise every nonfrivolous ground of appeal,

but should instead present “[s]olid, meritorious arguments based on

directly controlling precedent”. United States v. Williamson, 183

F.3d 458, 463 (5th Cir. 1999).

Such directly controlling precedent is rare.
Often, factual differences will make authority
easily distinguishable, whether persuasively
or not. In such cases, it is not necessarily
providing ineffective assistance of counsel to
fail to construct an argument that may or may
not succeed. But failure to raise a discrete,
purely legal issue, where the precedent could

10
 not be more pellucid or applicable, denies
adequate representation.

Id. at 463 n.7.

Relying on In re M.M.R., 932 S.W.2d 112 (Tex.App.—El Paso

1996), and Riley, which both require retaliation for duties already

performed, Schaetzle asserts his counsel was deficient for failing,

on direct appeal, to raise a sufficiency challenge to the

retributory intent element, claiming there was insufficient

evidence to establish he struck Officer Spriegel because of duties

he had already performed. Schaetzle claims appellate counsel

provides no strategic reason for failing to raise the issue on

appeal. On the other hand, in her affidavit in the state habeas

proceeding, appellate counsel did provide a reason for not doing

so: she “believed (and still believe[s]) the record contains

legally and factually sufficient evidence to support [Schaetzle’s]

conviction of retaliation....”

The magistrate judge’s recommendation, adopted by the district

judge, was that Schaetzle made the requisite showing of deficient

performance. This adopted recommendation exhaustively described

the split among the Texas Courts of Appeals and noted that the

Austin court is open on the issue. On this point, the adopted

recommendation was:

The [State] does not articulate any strategic
basis for appellate counsel’s not including
the argument in [Schaetzle’s] direct appeal,
nor is there one. The issue plainly should
have been raised given the authority directly

11
 on point supporting it; the failure to raise
the issue was a deficient performance by
appellate counsel.

The State asserts the district court erred in holding the

Court of Criminal Appeals was unreasonable in deciding that

appellate counsel’s performance was not deficient. It first

contends: the 1997 amendment of § 36.06 was after the decisions on

which Schaetzle relies; and this amendment broadened the

retributory intent element. Next, the State contends: assuming

the amendment did not alter the law on the retributory intent

element, because there was no controlling precedent in the Austin

Court of Appeals, appellate counsel did not need to raise the issue

on appeal; the facts in Riley and In re M.M.R. are distinguishable,

and appellate counsel could have reasonably concluded the issue had

no merit; and, therefore, the Court of Criminal Appeals could have

reasonably concluded counsel’s performance was not deficient.

For the following reasons, and given the split regarding the

retributory intent element of § 36.06, we conclude the Court of

Criminal Appeals would not have unreasonably applied federal law

had it concluded Schaetzle’s counsel did not perform deficiently

for failing to raise this issue on direct appeal. There was simply

no “pellucid” precedent providing counsel guidance. See

Williamson, 183 F.3d at 463 n.7.

First, § 36.06 was amended in 1997. Pre-amendment, it

proscribed retaliation only on account of the “service” of another

12
as a public servant. Post-amendment, retaliation was proscribed on

account of the “service or status” of another. Tex. Acts 1997,

75th Leg., ch. 239 (emphasis added). Schaetzle was charged under

the amended statute. As Schaetzle contends in his brief, this

amendment does not directly address the duties-already-performed

issue. On the other hand, because retaliation for status was

proscribed at the time of trial, counsel would not have been

objectively unreasonable in assessing, as irrelevant, the debate

over when retributory intent developed in relation to services

already performed; the evidence was sufficient to convict Schaetzle

for retaliation on account of the Officer’s status.

In any event, even assuming the amendment did not alter the

retributory intent question, there was no directly controlling

precedent on it at the time of direct appeal. Neither the Austin

Court of Appeals nor the Court of Criminal Appeals had decided

whether intent needed to be formed as retribution for acts already

performed or whether the 1997 amendment altered the retributory

intent issue. As noted, in an unpublished opinion, Mullins, the

Austin Court noted the split among Texas Courts of Appeals. It

concluded, however, that the evidence in that case was sufficient

under either interpretation of § 36.06 regarding the “service”

prong. (It did not address the effect of the 1997 amendment.)

This unpublished opinion hardly amounts to “pellucid or applicable”

legal precedent necessary to show deficient performance.

13
 Be that as it may, in the light of the facts in Mullins,

Schaetzle’s appellate counsel could have reasonably concluded the

evidence was sufficient to satisfy the retaliation-on-account-of-

service prong. Mullins was receiving medical care. He would

constantly shout profanities and insults at his caretakers.

Mullins was convicted of retaliation for threatening to kill an

Officer, against whom he had previously filed grievances and

received no redress.

On appeal, Mullins challenged the sufficiency of evidence,

contending the remarks were made while the Officer performed her

duties, not because of her having already performed those duties.

The Austin Court of Appeals concluded that the State met its

burden, even under a “duties already performed” standard; Mullins

had previously filed grievances against the Officer and was

frustrated because he received no redress.

Here, Officer Spriegel ordered that Schaetzle be returned to

his cell earlier than usual. After Schaetzle became angry, the

Officer informed Schaetzle that further disobedience would result

in a 23-hour lockdown. Schaetzle struck Officer Spriegel after

these events and while he was being escorted to his cell.

Schaetzle’s counsel on direct appeal could have reasonably

concluded that, under Mullins, the evidence was sufficient to show

Schaetzle struck the Officer in retaliation for requiring Schaetzle

to be locked down early, a duty already performed.

14
 Further, In re M.M.R. and Riley (upon which Schaetzle relies

to show appellate counsel unreasonably failed to raise the issue)

are distinguishable. In In re M.M.R., a juvenile, M.M.R., was

adjudicated delinquent for violating § 36.06. M.M.R. began

fighting with another youth, T.R., at a halfway house. Hamilton

broke up the fight; however, the two juveniles continued to

exchange words and M.M.R. broke away from Hamilton to attack T.R.

Hamilton restrained M.M.R.; in the struggle, M.M.R. kneed Hamilton

several times. The El Paso Court of Appeals concluded that § 36.06

required a showing that the act be “on account of” the public

servant’s service. In re M.M.R., 932 S.W.2d at 115. The evidence

showed M.M.R. assaulted Hamilton “not for the purpose of

retaliating against Hamilton for restraining him, but in order to

escape and continue his assault against T.R.”. Id.

Here, Schaetzle directly threatened and struck Officer

Spriegel after that Officer informed Schaetzle he would have to

return to his cell early and discussed consequences of his failure

to comply. Unlike In re M.M.R., there was no apparent purpose for

striking the Officer other than to retaliate against him for having

performed his duties.

In Riley, a prisoner was told to halt. When he refused to do

so, the Officer put his arm out to bar the prisoner’s way; the

prisoner pushed the Officer’s arm aside; the Officer pushed the

prisoner against the wall; they briefly exchanged words; and the

15
prisoner struck the Officer. The Houston court, citing In re

M.M.R., concluded this evidence was insufficient to show

retributory intent.

Unlike the prisoner in Riley, Schaetzle’s attack occurred well

after Officer Spriegel had first exercised his authority. Again,

the Officer had informed Schaetzle he would be returned to his cell

earlier than usual; and, although Schaetzle was angered

immediately, it was not until later walking back to his unit, after

a second discussion, that Schaetzle struck the Officer.

Finally, Courts of Appeals’ decisions that allow retributory

intent to form while duties are being performed all support the

conclusion that the evidence was sufficient for the jury to convict

Schaetzle. E.g., Wright, 979 S.W.2d 868 (officer assaulted by

prisoner directly after officer refused to open another prisoner’s

cell so first prisoner could kill him); Stafford, 948 S.W.2d 921

(arrestee threatened to kill officer after being placed in back of

patrol car); McCoy, 932 S.W.2d 720 (individual struck officer as

officer attempted to make arrest). In the light of these cases,

Schaetzle’s appellate counsel could have reasonably concluded that

the evidence was sufficient, and that raising the issue on appeal

had no merit.

In any event, as discussed, a federal court is not to

substitute its judgment for that of the state court. Rather, under

AEDPA, federal habeas relief is proper only if the state habeas

16
court applied federal law in an “objectively unreasonable” manner.

We hold that, even if the issue of deficient performance is

debatable, the Court of Criminal Appeals could have reasonably held

appellate counsel’s failure to raise a sufficiency claim on the

retributory intent element did not constitute deficient

performance.

B.

In the alternative, the Court of Criminal Appeals could have

reasonably concluded that, even if appellate counsel’s performance

was deficient, that performance was not prejudicial. Again, to

obtain state habeas relief for his IAC claim, Schaetzle was

required to satisfy both Strickland prongs: deficient performance

and resulting prejudice.

For the prejudice prong, Schaetzle was required to show the

Texas habeas court there was a reasonable probability that, but for

counsel’s deficient performance, Schaetzle would have prevailed on

direct appeal. Robbins, 528 U.S. at 285. “A reasonable

probability is a probability sufficient to undermine confidence in

the outcome.” Strickland, 466 U.S. at 694. Thus, a court must

determine the probable outcome of the appeal had counsel’s

performance not been deficient. Williamson, 183 F.3d at 463.

Counsel’s performance is “viewed as of the time of counsel’s

conduct”. Strickland, 466 U.S. at 690. Prejudice vel non is

evaluated under the law at the time habeas relief is sought (the

17
current law), not the law at the time of counsel’s conduct (the law

at the time of appeal). Lockhart v. Fretwell, 506 U.S. 364, 372

(1993).

As noted, the recommendation adopted by the district court was

that the requisite prejudice was shown. This adopted

recommendation was (as Schaetzle contends): “[T]he Austin Court of

appeals ... has yet to chime in on the issue”, but “signals that

exist suggest the plain existence of prejudice”; the facts in this

case are closest to those in Riley, in which the Houston Appeals

Court ruled the State needed to prove the unlawful act had been in

retaliation for duties already performed; the evidence in this case

was insufficient to prove that; and, as a result, had the issue

been raised on direct appeal, “there was a strong probability” the

Austin Court would have adopted Riley’s reasoning and ruled for

Schaetzle. While noting that deference was due to the state habeas

court, the adopted recommendation was that, because deficient

performance and resulting prejudice were shown, the state habeas

court’s decision was an objectively unreasonable application of

clearly established federal law. (The district court appears not

to have applied the requisite AEDPA deferential standard.)

On this point, the State asserts that, because the Court of

Criminal Appeals denied habeas relief, it necessarily determined

either: (1) § 36.06's retributory intent element can be met by

showing the act was “on account of” contemporaneous service; or (2)

18
even if the section requires a showing of retributive intent based

on duties already performed, the evidence was sufficient to convict

on that basis. According to the State, either holding is

objectively reasonable.

Needless to say, the Court of Criminal Appeals’ interpretation

of § 36.06 is binding on Texas Courts of Appeals. As the State

notes, in evaluating the reasonable probability of success on

appeal under the then-current law, the Court of Criminal Appeals

was required first to determine that law.

If the Court of Criminal Appeals determined, contrary to

Schaetzle’s position, that the retributory intent can develop

contemporaneously with the performance of duties, we defer to that

determination of state law. “It is not our function as a federal

appellate court in a habeas proceeding to review a state’s

interpretation of its own law, and we defer to the state courts’

interpretation of the Texas ... statute.” Weeks v. Scott, 55 F.3d

1059, 1063 (5th Cir. 1995) (citations omitted). Schaetzle does not

contend the evidence was insufficient to show he struck Officer

Spriegel while he was performing his duties.

On the other hand, if the Court of Criminal Appeals determined

that § 36.06 required retributory intent for duties already

performed and that the evidence was sufficient to convict on that

basis, its determination was objectively reasonable. Applying the

controlling federal law standards, the Court of Criminal Appeals

19
had to determine whether, under the then-current law, any rational

trier of fact could have found, beyond a reasonable doubt, that

Schaetzle intended to harm (strike) Officer Spriegel in retaliation

for duties already performed. See Jackson v. Virginia, 443 U.S.

307, 319 (1979).

As addressed above, the evidence was sufficient for a

reasonable juror to conclude Schaetzle struck the Officer “on

account of” duties he had already performed. Officer Spriegel told

Schaetzle he would be locked down earlier than usual and that any

disobedience would result in a 23-hour lockdown. Not until they

were later walking back to Schaetzle’s cell did Schaetzle strike

the Officer. This evidence was sufficient for a reasonable juror

to conclude, under the In re M.M.R./Riley line of cases, that

Schaetzle struck Officer Spriegel on account of his previously

requiring Schaetzle to be locked down early. Unlike In re M.M.R.,

Schaetzle did not strike Officer Spriegel in order to bring about

another purpose; unlike Riley, Schaetzle did not strike the Officer

contemporaneously with the Officer’s disciplining Schaetzle.

As the above analysis shows, the Court of Criminal Appeals

would not have been objectively unreasonable in concluding there

was no resulting prejudice.

III.

For the foregoing reasons, the Court of Criminal Appeals’

denial of habeas relief on Schaetzle’s claim of ineffective

20
assistance of counsel on direct appeal is neither contrary to, nor

an unreasonable application of, Strickland. Accordingly, the

conditional habeas relief granted by the district court is VACATED;

habeas relief is DENIED.

JUDGMENT VACATED; HABEAS RELIEF DENIED

21