     Case: 12-40787       Document: 00512271176         Page: 1     Date Filed: 06/12/2013




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

                                                                            FILED
                                                                           June 12, 2013
                                     No. 12-40787
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOE ISAAC JOHNSON,

                                                  Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:11-CV-124


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Following a jury trial, Joe Isaac Johnson, former Texas prisoner
# 1384642, was convicted of engaging in organized criminal activity and theft
and was sentenced to serve 35 years in prison. The district court granted
Johnson a certificate of appealability (COA) on the issue whether counsel
rendered ineffective assistance “because ‘the trial court was never presented
with Petitioner’s Fourth Amendment claim through his trial counsel that the


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40787

search of his impounded vehicle by [Texas Department of Public Safety] officer
Snyder was an unlawful search.’”
      Because claims of ineffective assistance of counsel involve mixed questions
of law and fact, they are controlled by 28 U.S.C. §2254(d)(1). Gregory v. Thaler,
601 F.3d 347, 351 (5th Cir. 2010). Thus, a petitioner will not receive relief on
such a claim absent a showing that the state court’s disposition of the claim
“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.” Id. (quoting §2254(d)(1)). Under Strickland v.
Washington, 466 U.S. 668, 687 (1984), a petitioner must establish both “that
counsel’s performance was deficient” and “that the deficient performance
prejudiced the defense.” The combined standards of Strickland and § 2254(d)
are “doubly deferential. We take a highly deferential look at counsel’s
performance, through the deferential lens of § 2254(d).” Cullen v. Pinholster, 131
S. Ct. 1388, 1403 (2011) (citations omitted) (internal quotation marks omitted).
      We review the district court’s determination of these questions de novo.
See Richards v. Quarterman, 566 F.3d 553, 561 (5th Cir. 2009). In the
circumstances here at issue, Johnson must show that the disputed evidence
would have been suppressed had it been objected to and that, absent the
excludable evidence, there is a reasonable probability of a different verdict. See
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). He has not made this
showing because the remaining evidence adduced at trial suffices to uphold his
conviction. See Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011); Adi
v. State, 94 S.W.3d 124, 128 (Tex. App. 2002).
      The testimony of Johnson’s accomplice showed that Johnson and others
conspired to commit and committed theft by taking trucks from dealerships with
the intent to deprive the dealerships of those vehicles. See Sweed, 351 S.W.3d
at 68; Adi, 94 S.W.3d at 129. This was not, however, the only evidence “tending
to connect” Johnson to the offense. See Joubert v. State, 235 S.W.3d 729, 731

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                                 No. 12-40787

(Tex. Crim. App. 2007). Rather, testimony from several police officers was
consistent with the accomplice’s version of events and further tied Johnson to
the offense. See Sweed, 351 S.W.3d at 68; Joubert, 235 S.W.3d at 731; Adi, 94
S.W.3d at 129. Johnson has not shown that he is entitled to relief on his
ineffective assistance claim. The district court’s judgment as to this claim is
AFFIRMED.
      Additionally, Johnson requests a COA on his claim that the district court
erred by denying his request for an evidentiary hearing. To obtain a COA, he
must make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); United
States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998). Because the record was
adequate to dispose of his claims, Johnson was not entitled to an evidentiary
hearing. Clark v. Johnson, 227 F.3d 273, 284 (5th Cir. 2000); see also Cullen v.
Pinholster, 131 S. Ct.1388, 1400 (2011). His COA request is DENIED.




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