Randy Marshall v. Burl Cain, Warden

616 F. App'x 202

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 29, 2015
• Docket: 14-30246
• Status: Unpublished

Opinion

PER CURIAM: *

Proceeding pro se, Randy C. Marshall, Louisiana prisoner # 539910, challenges the denial of habeas relief under 28 U.S.C. § 2254, concerning his conviction and life sentence for second-degree murder. Regarding the denial of relief, this court granted Marshall a certificate-of-appeala-bility on whether his trial attorney provided ineffective assistance by failing: to adequately investigate the self-defense theory presented at trial; and to argue actual innocence at trial.

In analyzing the denial of § 2254 relief, this court reviews issues of law de novo and findings of fact for clear error, applying the same deference to the state court’s decision as the district court under the Antiterrorism and Effective Death Penalty Act. Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir.2007).

Marshall asserts: he and his counsel decided to pursue an actual-innocence theory at trial; but, his counsel convinced him to change the theory to self-defense just before opening statements began, without time for sufficient investigation. Marshall fails, however, to produce any evidence in support of this claim. “[M]ere conclusory allegations on a critical issue are insufficient to raise a constitutional issue”. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.1990) (citation omitted) (internal quotation marks omitted). Marshall’s concluso-ry allegations are contradicted by the record, and are insufficient to demonstrate that, in denying this claim, the state court misapplied the Strickland v. Washington, 466 U.S. 668, 689-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), standard for ineffective assistance of counsel.

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.