Kelly v. Cockrell

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11226 Summary Calendar

EDDIE DEAN KELLY,

Petitioner-Appellant,

versus

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

Respondent-Appellee.

--------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:99-CV-635-Y --------------------- August 27, 2002 Before HIGGINBOTHAM, DAVIS and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Eddie Dean Kelly, a Texas prisoner (# 761045), appeals from

the district court’s denial of his 28 U.S.C. § 2254 habeas corpus

petition. Kelly challenges his 1996 guilty-plea conviction of

three counts of the aggravated sexual assault of his nine-year-

old stepdaughter and the 60-year prison term imposed by a jury

following a sentencing trial. On February 22, 2002, this court

granted Kelly a COA “on the issue whether Kelly’s counsel was

ineffective for failing to object in the presence of the jury to

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-11226 - 2 -

the State’s improper questions concerning a doctor’s opinions

that were not in evidence and to request a curative instruction

that the jury disregard the questions and opinions.”

Kelly contends that, on direct appeal, the Texas Court of

Appeals improperly addressed and rejected the above claim. He

argues, inter alia, that the state appellate court improperly

“speculated” that trial counsel’s actions were based on

reasonable trial strategy and that the court failed to consider

the prejudice prong of the Strickland v. Washington, 466 U.S. 668

(1984), standard for addressing ineffective-assistance claims.

To prevail on an ineffective-assistance claim, a petitioner

must establish both that his counsel’s performance was deficient

and that he was prejudiced by the deficient performance.

Strickland, 466 U.S. at 687. “Judicial scrutiny of counsel's

performance must be highly deferential.” Id. at 689. Contrary

to Kelly’s implication, “the defendant must overcome the

presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. (citation

omitted) (emphasis added). Kelly has not established that the

state appellate court’s conclusion that counsel’s conduct might

have been based on “reasonable trial strategy” was contrary to,

or an unreasonable application of, the Strickland

deficient-performance standard. See 28 U.S.C. § 2254(d);

Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

Kelly also has failed to demonstrate that he was prejudiced

by any error of counsel. It is true that his trial attorney’s

failure to raise a timely objection and to request a curative No. 01-11226 - 3 -

instruction allowed the prosecution to make improper references

to the results of a doctor’s opinion that had not been introduced

into evidence. See Ramirez v. State, 815 S.W.2d 636, 651 (Tex.

Crim. App. 1991). Kelly has not established a reasonable

probability that the result of the proceeding would have been

different in the absence of such improper references.

Strickland, 466 U.S. at 694.

The judgment of the district court is AFFIRMED.