     Case: 10-10113     Document: 00511608374         Page: 1     Date Filed: 09/21/2011




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

                                                                            FILED
                                                                        September 21, 2011
                                     No. 10-10113
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ROBERT WILLIAM TEAR,

                                                  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 Northern District of Texas
                             USDC No. 3:06-CV-1893


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Robert William Tear, Texas prisoner # 1024018, filed a 28 U.S.C. § 2254
petition to set aside his conviction on two counts of aggravated sexual assault of
a child under 14 years of age. After the district court dismissed his petition, we
issued Tear a certificate of appealability (COA) on the following issues: whether
counsel was ineffective for failing to call an expert to testify about the child
complainant’s expressive disorder and whether counsel was ineffective for failing


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-10113

to object to expert testimony regarding the credibility of the complainant in
particular and of child sex abuse complainants in general. We now affirm.
      If counsel renders a deficient performance that prejudices his client’s
defense, he violates his client’s rights under the Sixth Amendment. Strickland
v. Washington, 466 U.S. 668, 686, 691-92 (1984). A deficient performance is one
that falls “below an objective standard of reasonableness.” Porter v. McCollum,
130 S. Ct. 447, 452 (2009) (internal quotation marks and citation omitted). A
petitioner makes the required showing of prejudice if he demonstrates “that
there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. (internal quotation
marks and citation omitted). The probability “of a different result must be
substantial, not just conceivable.” Harrington v. Richter, 131 S. Ct. 770, 792
(2011); see also Lamb v. Johnson, 179 F.3d 352, 360 (5th Cir. 1999).
      A § 2254 petitioner asserting an ineffectiveness claim must demonstrate
that “the state court’s rejection of [the] claim . . . was ‘contrary to, or involved an
unreasonable application of Strickland, or [that] it rested ‘on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.’” Porter, 130 S. Ct. at 452 (quoting § 2254(d)). An ineffectiveness
claim presents a mixed question of law and fact. Richards v. Quartermann, 566
F.3d 553, 561 (5th Cir. 2009). In a habeas appeal, “[t]his court reviews the
district court’s legal conclusions de novo, applying the same standard as the
district court.” Amos v. Scott, 61 F.3d 333, 337-38 (5th Cir. 1995). When
examining mixed questions of law and fact, this court uses a de novo standard
by independently applying the law to the facts found by the district court, as
long as the district court’s factual determinations are not clearly erroneous.
Richards, 566 F.3d at 561. A state court’s discreet factual findings are presumed
to be correct, but a petitioner may rebut the presumption with clear and
convincing evidence. § 2254(d)(2), (e)(1).



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                                  No. 10-10113

       Under § 2254, a state habeas court’s merits adjudication is entitled to
deference by federal courts. Yarborough v. Alvarado, 541 U.S. 652, 665-66
(2004). To get federal relief, Tear must demonstrate that the Texas court’s
denial of habeas relief “was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Richter, 131 S. Ct. at 786-87.
       After the COA issued in the instant case, the Supreme Court held that a
federal court adjudicating a claim under §2254(d) is limited to the record that
was before the state courts. See Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011). Accordingly, review of the district court’s ruling may not rely on the
additional factual findings resulting from that court’s evidentiary hearing. See
id. Included among those was the finding that, contrary to what the state
habeas court found based on the evidence before it, Tear had indeed made this
counsel aware of an expressive disorder expert and of her willingness to testify.
With that finding now eliminated from consideration, Tear is left with nothing
that could constitute the clear and convincing evidence needed to rebut the trial
court’s factual findings that he did not inform his trial counsel about the
expressive disorder expert and that trial counsel’s affidavit testimony was
worthy of belief. See § 2254(e)(1). Therefore, Tear has failed to demonstrate
that the Texas court’s denial of this claim was the result of “an unreasaonable
determination of the facts,” §2254(d)(2), given the evidence before the state
court, or “was contrary to, or involved an unreasonable application of”
Strickland. § 2254(d)(1); see also Porter, 130 S. Ct. at 452. Because Tear fails
to demonstrate that “there is [no] reasonable argument that counsel satisfied
Strickland’s deferential standard,” this claim fails. Harrington, 131 S. Ct. at
787.
       Tear’s second claim fails for two reasons. First, the expert who testified
at trial concerning her investigation of the claimant’s assertions of abuse did not
offer an opinion concerning the veracity of this complainant in particular, and

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                                  No. 10-10113

so there was nothing for counsel to object to in that regard. Second, even if
counsel was deficient with regard to expert testimony about the truthfulness of
child sexual abuse complainants in general, Tear was not prejudiced because he
is unable to show that his conviction probably resulted from the deficiency. Tear
has demonstrated that it is conceivable that the jury was persuaded by the
expert’s testimony to think that the complainant lied when he uttered an on-the-
stand denial of one of the charges against Tear.         But such a conceivable
possibility of a different result is simply insufficient to demonstrate prejudice.
Richter, 131 S. Ct. at 792; Lamb, 179 F.3rd at 360. Tear thus failed to establish
that “there is [no] reasonable argument that counsel satisfied Strickland’s
deferential standard.”
Harrington, 131 S. Ct. at 787.
      AFFIRMED.




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