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

                                                                      FILED
                                                                   June 10, 2016
                               No. 15-70015
                                                                   Lyle W. Cayce
                                                                        Clerk
CARLOS MANUEL AYESTAS, also known as Dennis Zelaya Corea,

                                         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 Southern District of Texas


     ON PETITION FOR REHEARING AND REHEARING EN BANC

Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:
     No member of this panel nor judge in regular active service on the court
having requested that the court be polled on Rehearing En Banc, the Petition
for Rehearing En Banc is DENIED. See FED. R. APP. P. 35; 5TH CIR. R. 35.
     The Petition for Panel Rehearing is also DENIED.
     In the petitions, Ayestas makes two arguments to which we will respond.
First, he alleges errors with our holding under Rhines v. Weber, 544 U.S. 269
(2005). Specifically, he claims we held that “because federal habeas counsel
did not locate the Siegler Memo sooner, it was insufficiently diligent under”
                                 No. 15-70015
Article 11.071 § 5(a)(1) of the Texas Code of Criminal Procedure. We were not,
though, referring to the diligence of federal habeas counsel in locating the
memo. It was the diligence of Ayestas’s trial counsel that we were describing.
Our analysis is consistent with Rhines.
      Ayestas also points out that he was not in fact examined by a
psychologist in 1997, but we stated he had been in our opinion. Our analysis
is nonetheless unchanged. In our opinion, we held that even if Ayestas had
shown    there   had   been   deficient       performance   under   Strickland   v.
Washington, 466 U.S. 668 (1984), he did not show prejudice, that is, a
“substantial, not just conceivable, likelihood of a different result.” Ayestas v.
Stephens, No. 15-70015, 2016 WL 1138855, at *6 (5th Cir. Mar. 22, 2016)
(quoting Cullen v. Pinholster, 563 U.S. 170, 189 (2011)). Ayestas does not
challenge this aspect of our panel opinion. Our conclusion that Strickland
ineffectiveness was not shown remains unchanged.




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