                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 22, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 02-41397
                         Summary Calendar



                       MICHAEL CRAIG LOLLAR,

                                    Petitioner-Appellant,

                               versus

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

                                    Respondent-Appellee.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                       USDC No. 6:01-CV-162
                        --------------------

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

     Michael Craig Lollar, Texas inmate #822448, appeals the denial

of his 28 U.S.C. § 2254 petition.       Lollar pleaded guilty to a

charge of aggravated sexual assault of a child and was sentenced by

the court to life imprisonment and a $5,000 fine.

     The   district   court   granted   Lollar   a   certificate      of

appealability (“COA”) on his claims that (1) his plea of guilty was

involuntary in that Lollar’s waiver of a jury trial on punishment


     *
        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that this opinion should not be published and is not precedent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. 02-41397
                                 -2-

was predicated on counsel’s erroneous advice that the jury would

not be instructed on parole eligibility; (2) ineffective assistance

of counsel at the punishment phase; (3) ineffective assistance of

counsel in that his attorney failed to prepare for the trial or the

punishment phase of the proceeding; (4) ineffective assistance of

counsel relating to the polygraph examinations; (5) ineffective

assistance of counsel stemming from the disclosure of information

relating to the polygraph, thus breaching the attorney-client

privilege; and (6) overall ineffective assistance of counsel.

     Federal   habeas   relief   may   not   be   granted   on   questions

adjudicated on the merits by a state court unless the state court’s

decision (1) was contrary to or was an unreasonable application of

clearly established federal law as determined by the Supreme Court;

or (2) 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). Lollar concedes that the state court applied the

correct federal legal standard.

     A state-court decision involves an unreasonable application of

clearly established federal law if the state court “‘correctly

identifies the governing legal rule but applies it unreasonably to

the facts of a particular prisoner’s case.’”        Williams v. Taylor,

529 U.S. 362, 407-08 (2000).     “‘An application of law to facts is

unreasonable only when it can be said that reasonable jurists

considering the question would be of one view that the state court
                              No. 02-41397
                                   -3-

ruling was incorrect.’”      Morris v. Cain, 186 F.3d 581, 584 (5th

Cir. 1999).

     To establish a claim of ineffective assistance of counsel, a

petitioner must show that counsel’s deficient performance caused

him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).

A failure to establish either deficient performance or prejudice

defeats the claim.      Id. at 697.     To demonstrate prejudice in a

guilty plea context, a petitioner must show that there is a

reasonable probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to trial.

Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).             Prejudice in the

sentencing    context   requires   a   showing   that   the   sentence   was

increased due to counsel’s error.         Glover v. United States, 531

U.S. 198, 203, 204 (2001).

     Lollar contends that counsel’s advice that a jury would not be

instructed on the amount of time that he had to serve prior to

becoming eligible for parole caused him to waive the right to have

the jury assess punishment and rendered his plea involuntary.

Lollar asserts that the erroneous advice caused him to waive the

right to have the jury assess punishment.

     The record shows that Lollar understood the charges, was

admonished as to the constitutional rights he was waiving and the

sentence that he faced, and entered a knowing and voluntary plea.

See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969).                 Lollar

admitted that he made the ultimate decision to have the judge
                                No. 02-41397
                                     -4-

impose sentence.        Lollar has not shown that counsel’s advice

resulted in an increased sentence.        Glover, 531 U.S. at 203, 204.

     Lollar contends that counsel’s lack of preparedness for the

hearing on punishment deprived him of the effective assistance

of counsel.    He asserts that counsel did not familiarize himself

with the presentence investigation report (“PSI”), particularly the

section containing the Sexual Assessment Inventory (“SAI”) results;

counsel did not consult Lollar’s therapist or any other expert in

psychology;    counsel    did   not   present    an   expert    witness   in

psychology; and counsel did not investigate the psychological

factors used to predict the likelihood of recidivism.                 Lollar

contends that counsel did not inquire whether the State intended to

present witnesses at the punishment hearing; did not move for a

continuance when he learned that witnesses would testify; and did

not request notice that the State intended to introduce evidence of

extraneous offenses.      Lollar argues that counsel did not insure

that he had sufficient time to review the PSI; did not make sure

that Lollar had reviewed the PSI; and did not review the PSI with

Lollar.

     Lollar asserts that counsel was unprepared to and did not

rebut the     State’s   evidence   and   that   counsel   did   not   present

mitigation evidence on the issues of Lollar’s remorse and his

likelihood of recidivism.       Lollar argues that counsel should have

presented Lollar’s apology video and expert witnesses to rebut the

State’s expert’s testimony.        Lollar asserts that counsel did not
                               No. 02-41397
                                    -5-

argue for deferred adjudication and that counsel argued for Lollar

to receive a severe sentence.

      The   record   shows   that    counsel    was   sufficiently   prepared

and   familiar   with    the       PSI,    adequately   cross-examined     the

State’s witnesses, and tried to rebut the State’s evidence. Lollar

has not shown prejudice from counsel’s surprise at the State’s

presentation of witnesses or from counsel’s failure to consult

Lollar regarding the PSI.      Lollar has not shown that a continuance

would have been granted and would have been helpful.               Lollar has

not shown that the introduction of the apology video would have

resulted in a reduced sentence; he has not indicated the content of

the video, nor has he explained how this would have affected his

sentence in light of the fact that victim did not receive the

video, and his apology letter was before the court.

      Lollar has not shown that the judge would have considered

deferred    adjudication     and    that   counsel’s    remark   that   Lollar

deserved “severe punishment” affected his sentence. Lollar has not

shown that the introduction of expert evidence would have resulted

in a less harsh sentence.          Glover, 531 U.S. at 203, 204.         Lollar

contends that counsel was ineffective because he revealed negative

polygraph results; did not advise Lollar that he had the right not

to disclose the results of the polygraphs; did not protect the

attorney-client privilege and allowed Lollar to admit offenses to

his wife and family; advised Lollar to take additional polygraph

examinations; disclosed the results of the additional polygraphs
                                 No. 02-41397
                                      -6-

without Lollar’s knowledge or consent; did not advise Lollar that

he had the right to obtain other counsel; and did not withdraw

despite strong reservations about cross-examining a child witness.

Lollar argues that if he had known that he could have withheld the

polygraph results, he would not have pleaded guilty.                  He insists

that counsel’s decisions cannot be considered sound strategy.

      The    reasonableness     of     counsel’s      challenged   conduct     must

be judged on the facts of the particular case, viewed as of

the time of counsel’s conduct.                Strickland, 466 U.S. at 690.

“Counsel is strongly presumed to have rendered adequate assistance

and made all significant decisions in the exercise of reasonable

professional judgment.” Id. “A conscious and informed decision on

trial tactics and strategy cannot be the basis for constitutionally

ineffective assistance of counsel unless it is so ill chosen that

it permeates the entire trial with obvious unfairness.”                 Green v.

Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997).

      At the punishment hearing, counsel objected to preserve the

attorney-client privilege as to matters discussed in the office by

the polygraph operator, counsel, and Lollar. Counsel admitted that

as part of a strategy, Lollar and he decided to share information

with the police.       Lollar admits that he revealed information about

the charged offense and other offenses to third parties.

      The state court found that Lollar and his attorney decided to

openly      discuss    the   charges    with    the     prosecution    in     order

to   mitigate    the   sentence.        The   state    court   also   found    that
                                 No. 02-41397
                                      -7-

the polygraph operator testified to facts that were divulged to the

prosecution as a result of decisions made by Lollar and his

attorney.    These findings are presumed correct, and Lollar has not

provided clear and convincing evidence to rebut them.                28 U.S.C.

§ 2254(e)(1).

     The record shows that Lollar agreed to the initial strategy of

taking   a   polygraph    to    avoid   indictment   and   to     preserve   his

reputation.    Lollar was informed of counsel’s strategy and

acquiesced in the decisions.        Lollar has not shown that reasonable

jurists considering the question of the reasonableness of counsel’s

defense strategy would be of one view that the state court ruling

was incorrect.       See Morris, 186 F.3d at 584.     Lollar has not shown

that the state courts’ decisions were unreasonable

applications    of    clearly    established    federal    law.      28   U.S.C.

§ 2254(d).

     Lollar has not briefed the issue of overall ineffective

assistance of counsel.      Accordingly, the issue is waived. Smith v.

Cockrell, 311 F.3d 661, 679 n.12 (5th Cir. 2002).

     Lollar has not requested a COA on the claims of ineffective

assistance of counsel on which the district court denied a COA,

i.e., that counsel had a conflict of interest and that counsel

abandoned Lollar and became an agent of the State.           Accordingly, we

do not address these issues.            United States v. Kimler, 150 F.3d

429, 431 (5th Cir. 1998).
                                     No. 02-41397
                                          -8-

       Lollar   asserts       that     he   would    not    have    pleaded       guilty

if counsel had advised him that he had the right to keep the

polygraph    results    confidential         and    the    right   to   go   to   trial

even though counsel thought that he was guilty.                    Lollar contends

that    he   should    have     been     afforded     an    evidentiary       hearing.

The district court did not grant a COA on these issues, and Lollar

has not requested a COA.             We do not reach these issues.             Kimler,

150 F.3d at 431.

       Lollar has not shown that the state-court decisions that

resulted in the denial of habeas relief were contrary to or were an

unreasonable application of clearly established federal law as

determined by the Supreme Court, or that the decisions were 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).      Accordingly, the judgment of the district court is

AFFIRMED.
