     Case: 08-30654     Document: 00511062596          Page: 1    Date Filed: 03/25/2010




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

                                                   FILED
                                                                           March 25, 2010

                                       No. 08-30654                    Charles R. Fulbruge III
                                                                               Clerk

KEVIN SHOLES,

                                                   Petitioner - Appellant
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                   Respondent - Appellee


                     Appeal from the United States District Court
                         for the Eastern District of Louisiana
                               USDC No. 2:06-CV-01831


Before DAVIS, WIENER, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Kevin Sholes filed an application for habeas corpus under 28 U.S.C. §
2254. The district court denied relief. Sholes appeals, arguing violations of his
due process rights and his right to effective assistance of counsel. We agree with
the district court that the state court’s determination was not contrary to or an
unreasonable application of federal law. Therefore, we AFFIRM.
            Sholes was convicted of second-degree murder and sentenced to life in
prison. The Louisiana Fourth Circuit Court of Appeal affirmed the conviction



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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and sentence on direct appeal. The court’s opinion outlines the facts of the crime
in further detail. State v. Sholes, 782 So. 2d 691, 693-94 (La. App. 4th Cir. 2001).
The Court of Appeal affirmed the trial court’s evidentiary rulings and found the
evidence sufficient to establish Sholes’s guilt beyond a reasonable doubt. The
Louisiana Supreme Court denied all state writs. State v. Sholes, 810 So. 2d 1136
(La. 2002).
      Sholes filed a pro se state post-conviction relief application, which was
supplemented after he retained counsel. The trial court held a hearing on the
claims and granted Sholes post-conviction relief. The Louisiana Supreme Court,
though, reversed. State v. Sholes, 920 So. 2d 212 (La. 2006).
      Sholes, represented by counsel, filed a Section 2254 application in the
United States District Court for the Eastern District of Louisiana. He alleged
due process violations under Brady v. Maryland, 373 U.S. 83, 86-87 (1963), and
ineffective assistance of counsel. The magistrate judge examined each piece of
withheld material and concluded that their withholding did not undermine
confidence in the jury’s verdict. Each ineffective assistance of counsel claim was
reviewed, and deficiency and prejudice were not found.            See Strickland v.
Washington, 466 U.S. 668, 686 (1984).            The district court adopted the
magistrate’s report, denying Sholes habeas relief. Proceeding pro se, Sholes
appeals the district court’s judgment.
                                   DISCUSSION
      We will not grant Section 2254 habeas relief to a state inmate unless the
state court’s adjudication resulted in a decision that is “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A state
court’s decision is contrary to clearly established federal law if (1) the state court
“applies a rule that contradicts the governing law” as announced by the Supreme
Court, or (2) the state court decides a case with materially indistinguishable

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facts differently than the Supreme Court did. Mitchell v. Esparza, 540 U.S. 12,
15-16 (2003) (internal quotation marks and citation omitted). A state court’s
application of clearly established federal law is unreasonable when the state
court “identifies the correct governing legal principle from Supreme Court
precedent, but applies that principle to the case in an objectively unreasonable
manner.” Woods v. Quarterman, 493 F.3d 580, 584 (5th Cir. 2007) (citation and
quotation marks omitted).
      We review the district court’s conclusions of law in its consideration of the
state court’s adjudication de novo and its conclusions of fact for clear error.
Nelson v. Quarterman, 472 F.3d 287, 293 (5th Cir. 2006).
      A.    The Brady Claims
      Sholes alleges that the State withheld evidence in violation of Brady. To
establish a due process violation under Brady, the defendant must show that (1)
the State withheld evidence, (2) the evidence was favorable to the defendant, and
(3) the evidence was material to the defense. Avila v. Quarterman, 560 F.3d 299,
305 (5th Cir. 2009) (citation omitted).
      The State appears to concede that the evidence, consisting of three witness
statements and a supplemental police report, was withheld from Sholes. We do
not decide whether all the evidence was favorable to the defendant. Sholes’s
claim under Brady fails because he has not shown that the Louisiana Supreme
Court was unreasonable in finding the evidence immaterial.
      Evidence is material “if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.”    Strickler v. Greene, 527 U.S. 263, 280 (1999) (citation and
quotation marks omitted). That does not mea that the petitioner must show that
he would have been acquitted. Rather, we determine whether “the favorable
evidence could reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict.” Youngblood v. West Virginia, 547

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U.S. 867, 870 (2006) (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). Our
materiality inquiry is “a fact-intensive examination done on a careful,
case-by-case basis.” Banks v. Thaler, 583 F.3d 295, 322 (5th Cir. 2009).
      Sholes alleges that confidence in the jury verdict is undermined because
he could not effectively cross-examine the witnesses about inconsistencies in
their statements. However, most of the inconsistencies alleged by Sholes are not
actually inconsistencies or have little bearing on his guilt. Moreover, the alleged
inconsistencies regarding the identification of Sholes as the perpetrator do not
undermine confidence in the verdict where, as here, Sholes was known to the
witnesses prior to the incident. In the context of the reliability of identification
procedures, we have noted the prior familiarity between the identifier and the
identified as part of the “thread of reliability.” United States v. Hefferon, 314
F.3d 211, 219 (5th Cir. 2002).
      The Louisiana Supreme Court’s determination that the withheld evidence
did not undermine confidence in the outcome of the verdict was not contrary to
or an unreasonable application of federal law.
      B.     The Ineffective Assistance of Counsel Claims
      Sholes makes seven individual claims of ineffective assistance of counsel.
Several claims arise from counsel’s failure to locate and use the Brady material.
He also alleges counsel was ineffective for not calling an alibi witness, two police
officers, and Sholes himself to testify; for not presenting evidence that the victim
was a drug dealer; and for not objecting to a photo lineup or alleged hearsay
testimony.
      The Sixth Amendment grants to a criminal accused the right to effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).
This right is denied when counsel’s performance (1) falls below an objective
standard of reasonableness, and (2) prejudices the defense.          Strickland v.
Washington, 466 U.S. 668, 687 (1984).

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      Our review of counsel’s performance is “highly deferential,” and we strive
“to eliminate the distorting effects of hindsight.” Id. at 689. In order to establish
prejudice, there must be a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. We consider whether the state court’s decision that the Strickland
showing was not made was unreasonable or contrary to clearly established
federal law. Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003).
      Sholes did not show that counsel was deficient in not obtaining the Brady
material. As the Supreme Court found in Strickland, the standard for attorney
performance “is that of reasonably effective assistance.” Strickland, 466 U.S. at
687. Counsel’s request for the material here satisfied that standard.
      The claims about uncalled witnesses also fail. The Louisiana Supreme
Court had before it the testimony of Sholes’s attorney and the alibi witness. The
court was not objectively unreasonable in concluding that the attorney’s decision
not to call the witness was acceptable. As to the remaining uncalled witness
claims – the two officers and Sholes – Sholes has not shown prejudice. In order
to demonstrate prejudice arising from failure to call witnesses, the petitioner
must show that the witness would have testified at trial and that the testimony
would have been favorable. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir.
1985). There must be a “‘reasonable probability’ that the uncalled witnesses
would have made [a] difference to the result.” Id. at 603 (citation omitted).
      The remaining claims are likewise not meritorious. Contrary to Sholes’s
assertion, counsel elicited testimony that the victim was a drug dealer and kept
money and drugs in the house. Thus, the theory that others may have had
motive to commit the murder was before the jury. Sholes has also not shown
prejudice from counsel’s failing to object to the photographic lineup. He has not
shown that had counsel objected, the lineup would have been excluded. See
United States v. Rogers, 126 F.3d 655, 658 (5th Cir. 1997). Finally, Sholes’s

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statement that counsel was ineffective for failing to object to hearsay testimony,
without any further explanation of the law or facts surrounding the claim, is
waived on appeal. United States v. Stalnaker, 571 F.3d 428, 439-40 (5th Cir.
2009) (claims waived where party merely listed them, without citation to the
record or relevant law).
      The final argument is that cumulative error resulting from the individual
events of ineffective assistance of counsel requires reversal. The claims fails
because “ineffective assistance of counsel cannot be created from the
accumulation of acceptable decisions and actions.” United States v. Hall, 455
F.3d 508, 520 (5th Cir. 2006) (citations omitted).
      The Louisiana Supreme Court’s decision that Sholes did not make an
adequate showing of ineffective counsel was not contrary to or an unreasonable
application of clearly established federal law.
      AFFIRMED.




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