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

                                                 FILED
                                                                         November 16, 2009

                                       No. 07-50026                    Charles R. Fulbruge III
                                                                               Clerk

LAWRENCE W KYLE

                                                   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 Western District of Texas
                               USDC 5:06-cv-00346


Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Pursuant to a Certificate of Appealability (COA) obtained from our court
under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Texas prisoner Lawrence W. Kyle appeals pro se the denial of two claims of
ineffective assistance of counsel in state court. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                   No. 07-50026

                                         I.
        Kyle was charged in Texas state court with criminal solicitation of a
minor-sexual assault and sexual assault of a child. Pursuant to written plea
agreements, he pleaded guilty to both offenses and was sentenced to 10 years’
imprisonment for the solicitation, and 18 years for the assault, offense.
        As part of his written plea agreements, Kyle waived the right to appeal his
convictions and sentences. Nevertheless, he filed a pro se notice of appeal from
his solicitation conviction and sentence. This appeal was dismissed on 30 March
2005.
        In November 2005, for each conviction, Kyle filed an application for state
habeas relief. In each application, Kyle contended: his guilty plea was not
knowing and voluntary; and he was denied effective assistance of counsel at trial
and on appeal.
        In January 2006 for one application, and that March for the other, without
holding a hearing, the same state habeas trial court, for each application,
entered findings of fact and conclusions of law and recommended denial of
habeas relief. Among other findings and conclusions in each order, emphasis
was given to the admonishment the trial court gave Kyle for each guilty plea and
to Kyle’s signing the plea agreements. (As noted, included in those agreements
was a waiver of the right to appeal.)
        In April 2006, the Texas Court of Criminal Appeals denied habeas relief.
In doing so, the order for each application stated only that the requested relief
was “DENIED WITHOUT WRITTEN ORDER ON FINDINGS OF TRIAL
COURT WITHOUT HEARING”.
        Kyle next filed an application for federal habeas relief, pursuant to
AEDPA, 28 U.S.C. § 2254, challenging both convictions. Similar to his state
habeas applications, Kyle contended: his guilty pleas were not knowing and



                                         2
                                   No. 07-50026

voluntary; and he was denied effective assistance of counsel at trial and on direct
appeal.
      The district court denied Kyle’s application and his COA request. Kyle’s
COA request to this court was granted on two issues: whether his guilty pleas
were knowing and voluntary; and whether he was denied effective assistance of
counsel on direct appeal.
                                         II.
      For this appeal from the denial of habeas relief, our court “review[s] the
district court’s findings of fact for clear error and review[s] its conclusions of law
de novo, applying the same standard of review to the state court’s decision as the
district court”. Beazley v. Johnson, 242 F.3d 248, 255 (5th Cir. 2001) (quoting
Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998)). Regarding our deferential
AEDPA review of the decision by the Texas Court of Criminal Appeals, the
Supreme Court explained the appropriate standard, under 28 U.S.C. § 2254(d),
in Williams v. Taylor, 529 U.S. 362 (2000). See Beazley, 242 F.3d at 253. Under
the heightened AEDPA standard, federal habeas relief shall not be granted for:
      any claim that was adjudicated on the merits in State court
      proceedings unless the adjudication of the claim—

        (1) 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; or

        (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.

Beazley, 242 F.3d at 255-56 (emphasis in original) (quoting 28 U.S.C. § 2254(d)).
      At issue is only § 2254(d)(1). The Williams Court stated the “contrary to”
and “unreasonable application” clauses must be given independent meaning.
Beazley, 242 F.3d at 256. For the former, the Court explained:



                                          3
                                  No. 07-50026

      A state-court decision will certainly be contrary to our clearly
      established precedent if the state court applies a rule that
      contradicts the governing law set forth in our cases . . . [or] if the
      state court confronts a set of facts that are materially
      indistinguishable from a decision of this Court and nevertheless
      arrives at a result different from our precedent.

Id. (emphasis in original) (quoting Williams, 529 U.S. at 405-06).        For the
meaning of the “unreasonable application” clause, the Court explained: “A state
court decision that correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular prisoner’s case certainly would qualify
as a decision ‘involv[ing] an unreasonable application of . . . clearly established
Federal law’”. Id. (emphasis in original) (quoting Williams, 529 U.S. at 404-05).
The Court further explained: “Under § 2254(d)(1)’s ‘unreasonable application’
clause, then, a federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.” Id. (emphasis in original)
(quoting Williams, 529 U.S. at 412).
      As noted, the Texas Court of Criminal Appeals denied each application
without stating reasons, except to state its denial was based on the findings of
the state habeas trial court. For this situation, “our court: (1) assumes that the
[Texas Court of Criminal Appeals] applied the proper ‘clearly established
Federal law’; and (2) then determines whether its decision was ‘contrary to’ or
‘an objectively unreasonable application of ’ that law”. Schaetzle v. Cockrell, 343
F.3d 440, 443 (5th Cir. 2003) (quoting Catalan v. Cockrell, 315 F.3d 491, 493 &
n.3 (5th Cir. 2002)). Pursuant to our deferential review, each claim fails.
                                        A.
      Kyle maintains conduct by his counsel during the plea process resulted in
his pleas being unknowing and involuntary. The COA on whether Kyle’s guilty


                                        4
                                  No. 07-50026

pleas had those defects translates into whether his counsel rendered ineffective
assistance by informing him incorrectly, according to Kyle, that the maximum
sentence he faced was 60 years. Therefore, to review the state court decision
concerning Kyle’s challenge to his guilty pleas, we apply the well-known two-
part test for claims for ineffective assistance of counsel, provided in Strickland
v. Washington, 466 U.S. 668, 687-88, 694 (1984). See Hill v. Lockhart, 474 U.S.
52, 58 (1985).
        Strickland’s first prong requires Kyle to show that his “counsel’s
representation fell below an objective standard of reasonableness”. Strickland,
466 U.S. at 688. To satisfy the second prong of Strickland, prejudice, Kyle must
“show that there is a reasonable probability that, but for [his] counsel’s errors,
he would not have pleaded guilty and would have insisted on going to trial”.
Hill, 474 U.S. at 59.
      Assuming arguendo his counsel misinformed Kyle of his maximum
potential sentence, he was properly instructed on his sentence range by the trial
court. Because Kyle knew the maximum sentence he faced before he pleaded
guilty, it is not reasonable to conclude that, but for his counsel’s claimed
misstatement of the sentence, he would have insisted on going to trial.
                                        B.
      The state habeas trial court did not expressly address Kyle’s claim that his
counsel rendered ineffective assistance by failing to file a notice of appeal.
Nevertheless, our above-described standard of review under AEDPA for the
habeas denial by the Texas Court of Criminal Appeals is unchanged.
      To prevail in state court on a claim of ineffective assistance of counsel,
Kyle had to satisfy the two-part Strickland test. As discussed, as part of his plea
agreement, Kyle waived his right to appeal. Therefore, even if his counsel had
filed a notice of appeal, the result of the proceeding would not have changed; the
appeal would have been dismissed because of the waiver. Accordingly, under our

                                        5
                                   No. 07-50026

deferential review, his claim failed the second prong (prejudice) of Strickland.
See Strickland, 466 U.S. at 694.
                                       III.
      For the foregoing reasons, the judgment denying habeas relief is
AFFIRMED.




                                        6
