     Case: 09-20045        Document: 00511539413         Page: 1     Date Filed: 07/13/2011




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                               July 13, 2011
                                          No. 09-20045
                                                                              Lyle W. Cayce
HEATH ALAN THOMPSON,                                                               Clerk

                                                      Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                      Respondent - Appellee



                      Appeal from the United States District Court
                           for the Southern District of Texas
                                USDC No. 4:08-CV-2046


Before JOLLY and HAYNES, Circuit Judges, and RODRIGUEZ*, District Judge.
PER CURIAM:**
        Heath Alan Thompson (“Thompson”), Texas prisoner # 1308793, was
convicted by a jury of burglary of a habitation with intent to commit sexual
assault and was sentenced to forty years of imprisonment. The district court
denied his application for habeas relief under 28 U.S.C. § 2254. This court
granted a certificate of appealability (“COA”) to determine “whether
[Thompson’s] counsel was ineffective in failing to object at the punishment phase


        *
            District Judge of the Western District of Texas, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 09-20045

to the victim-impact testimony of Wray Foster.” Foster testified about injuries
she received in a separate incident as a passenger in Thompson’s car which was
in an accident while Thompson was driving under the influence. We now
AFFIRM the district court’s denial of habeas relief.
I. Background
      A jury convicted Thompson of one count of burglary of a habitation with
intent to commit sexual assault. At the punishment phase, the State presented
evidence that Thompson had two prior convictions for driving while intoxicated
(DWI). The State also presented the testimony of Wray Foster, Thompson’s
passenger during his second DWI, who was paralyzed when Thompson had an
accident on that occasion. Foster came into the courtroom in a wheelchair and
testified that as a result of the accident, she was hospitalized for two months,
had extensive scars, and was confined to a wheelchair because of a broken back.
Thompson’s counsel never objected to this testimony. The jury ultimately
sentenced Thompson to forty years’ imprisonment. Thompson’s conviction and
sentence were affirmed on appeal.
      On November 13, 2006, Thompson filed a motion with the state court for
post-conviction relief, alleging numerous defects at trial. During an eight-day
evidentiary hearing, Thompson’s counsel testified that he acted pursuant to an
objection-minimization strategy, but he did not realize he could have objected to
Foster’s testimony as extraneous victim-impact evidence. The court ultimately
denied Thompson’s request for post-conviction relief. As part of its denial, the
state court concluded that Thompson’s counsel’s strategy of objection-
minimization was reasonable. The court further found that Thompson’s counsel
was not ineffective for failing to object to Foster’s testimony because the
testimony was relevant to sentencing and admissible. The Texas Court of
Criminal Appeals (“TCCA”) adopted the findings of the trial court and denied
Thompson’s appeal without written order.

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                                  No. 09-20045

      Thompson then filed the instant § 2254 petition, in which he continued to
allege, among other claims, that his counsel was ineffective for failing to object
to Foster’s testimony. The district court denied Thompson’s petition, noting that
it was bound by the state courts’ determination that state evidentiary law was
not violated, and that Thompson had failed to identify how the testimony
violated any of his federal rights. Thompson requested a COA, which this court
granted only as to whether Thompson’s counsel was ineffective in failing to
object to Foster’s “victim-impact” testimony.
II. Analysis
      On an appeal of a denial of habeas relief, we review the district court’s
findings of fact for clear error and its legal conclusions de novo. Martinez v.
Johnson, 255 F.3d 229, 237 (5th Cir. 2001). Thompson argues that the district
court erred in finding that his attorney’s failure to object to Foster’s testimony
did not amount to ineffective assistance of counsel. To succeed on a claim of
ineffective assistance of counsel, Thompson must demonstrate: (1) that his
counsel’s performance was deficient, and (2) that the deficient performance
prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984);
Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003). Moreover, because
Thompson was convicted in state court, Thompson must demonstrate that the
state courts’ conclusion that he had not proven a Strickland claim was
unreasonable in light of Supreme Court precedent. 28 U.S.C. § 2254(d); see also
Thaler v. Haynes, 130 S. Ct. 1171, 1173 (2010) (“A legal principle is clearly
established within the meaning of [28 U.S.C. § 2254(d)(1)] only when it is
embodied in a holding of this Court.”); Woodfox v. Cain, 609 F.3d 774, 800 & n.14
(5th Cir. 2010).
      The only issue before this court is whether the failure of Thompson’s
counsel to object to the admission of Foster’s testimony denied Thompson of his
constitutional right to counsel. See Yarborough v. Gentry, 540 U.S. 1, 8 (2003)

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                                       No. 09-20045

(“The Sixth Amendment guarantees reasonable competence, not perfect advocacy
judged with the benefit of hindsight.”). Thompson’s sole argument before the
state habeas court was that his attorney was constitutionally deficient for failing
to object to Foster’s testimony on the grounds that it was irrelevant under Texas
Rule of Evidence 401 as interpreted by the TCCA in Cantu v. State, 939 S.W.2d
627, 637 (Tex. Crim. App. 1997).1 The state habeas court held that Foster’s
testimony in this case was relevant to sentencing under Texas Code of Criminal
Procedure art. 37.07 § 3, and that the testimony was therefore admissible. This
finding was upheld by the TCCA. This court must defer to the state courts’
ruling that Foster’s testimony was admissible under the state’s evidentiary law.
See Charles v. Thaler, 629 F.3d 494, 500-01 (5th Cir. 2011) (“A federal court
lacks authority to rule that a state court incorrectly interpreted its own law.
When, as here, a state court’s legal conclusions are affirmed by the highest court
in that state, those conclusions are state law.”); Schaetzle, 343 F.3d 440, 449 (5th
Cir. 2003) (“‘It is not our function as a federal appellate court in a habeas
proceeding to review a state’s interpretation of its own law.’” (quoting Weeks v.
Scott, 55 F.3d 1059, 1063 (5th Cir. 1995)).2


       1
         In Cantu, the defendant confessed to the rape and murder of two girls, but was only
indicted for the murder of one of them. 939 S.W.2d at 630-31. At the punishment phase of the
defendant’s trial, the mother of the second girl, whose murder was not included in the
defendant’s indictment, testified as to her daughter’s good character and the effect of her
daughter’s death on her family. Id. at 636. The TCCA held that the extraneous victim-impact
evidence of the girl’s mother was “irrelevant under TEX. R. CRIM. EVID. 401 and therefore
irrelevant in the context of the special issues under [Texas Code of Criminal Procedure] Art.
37.071.” Id. at 637.
        Notably, later opinions of the TCCA have construed Cantu not to prohibit the testimony
of the victims of a defendant’s prior crimes as to the victims’ own injuries. See Roberts v.
State, 220 S.W.3d 521, 531 (Tex. Crim. App. 2007).
       2
          Similarly, though the federal habeas court in Ward v. Dretke, 420 F.3d 479, 493-94
(5th Cir. 2005), did examine whether the unobjected-to evidence was admissible under Texas
law, there is no indication that the state courts made any specific holding on that issue. Cf.
Charles, 629 F.3d at 501 (“We have held that only when the state courts fail to address the
merits of a Strickland deficiency claim by deciding the prejudice prong of the inquiry alone,

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       Because the state courts held that Foster’s testimony was admissible,
Thompson’s counsel’s failure to object to it on the grounds that it was
inadmissible under state law could not be deficient performance. See Charles,
629 F.3d at 501 (“The testimony was admissible; counsel did not err.”). Thus,
Jones v. Cain, 600 F.3d 527, 536 (5th Cir. 2010), upon which Thompson relies,
is inapposite. In Jones, the Confrontation Clause claim that the court addressed
was independent of the state courts’ hearsay ruling. See id. In this case,
Thompson’s ineffective assistance of counsel argument is precluded by the state
courts’ findings that the evidence was admissible and any objection on those
grounds would have been futile.
       Furthermore, although some evidence can be so unduly prejudicial that its
admission constitutes a violation of federal due process rights, see Payne v.
Tennessee, 501 U.S. 808, 825 (1991), Thompson has exhausted neither a
Fourteenth Amendment claim to the admission of the evidence nor a Sixth
Amendment claim for his lawyer’s failure to object to the evidence on federal due
process grounds.3 In any event, he does not point to a Supreme Court case that


the federal courts owe no AEDPA deference on the deficiency prong.”).
       3
          At oral argument, the court questioned whether Thompson had exhausted his
Strickland claim based upon his attorney’s failure to object on federal due process grounds,
and the State expressly disclaimed an intent to waive the exhaustion requirement. See
Woodfox, 609 F.3d at 792 (stating that a court may raise exhaustion sua sponte if not waived
by the State).
        To exhaust an issue for federal habeas review, it must be “fairly presented” to the state
court. Woodfox, 609 F.3d at 790. As stated above, Thompson’s Strickland claim was premised
on his lawyer’s failure to object to the evidence as inadmissible under Rule 401 of the Texas
Rules of Evidence. This claim did not fairly present the issue of whether his counsel was also
ineffective for failing to object to Foster’s testimony on the basis that it violated Thompson’s
due process rights. Cf. Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam) (“If a habeas
petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due
process of law guaranteed by the Fourteenth Amendment, he must say so, not only in the
federal court, but in the state court.”). Indeed, in Henry, the Court specifically rejected the
petitioner’s argument that objecting to extraneous victim-impact testimony on state
evidentiary grounds fairly presented a federal due process claim. See id. at 364-66. Therefore,
Thompson’s argument that his attorney should have objected on the basis of state evidentiary
law did not fairly present a Strickland claim for his attorney’s failure to object to Foster’s

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                                      No. 09-20045

makes this testimony inadmissible as a matter of federal constitutional law.
       We have no jurisdiction over Thompson’s other arguments, which are
beyond the scope of the COA.
III. Conclusion
       For the foregoing reasons, the district court’s denial of habeas relief is
AFFIRMED.




testimony as being in violation of Thompson’s due process rights.

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