     Case: 12-30126       Document: 00512302297         Page: 1     Date Filed: 07/10/2013




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

                                                                            FILED
                                                                            July 10, 2013
                                     No. 12-30126
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

SHANNON BROWN,

                                                  Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                  Respondent-Appellee


                   Appeals from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:11-CV-2267


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Shannon Brown, Louisiana inmate # 5178331, appeals the district court’s
denial of his 28 U.S.C. § 2254 petition, which challenged his conviction of second
degree murder. This court granted a certificate of appealability on the issue
whether Brown’s trial counsel rendered ineffective assistance by failing to
conduct a reasonable pretrial investigation.
       We review the district court’s findings of fact for clear error and its legal
conclusions de novo. Summers v. Dretke, 431 F.3d 861, 868 (5th Cir. 2005).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30126

Where, as here, the petitioner’s claim has been adjudicated on the merits by the
state court, the federal court’s review of the state court’s decision is deferential.
Id.; see § 2254(d). Under § 2254(d), federal habeas relief cannot be granted
unless the state court’s adjudication “either (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 . . . , 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.” Summers, 431 F.3d at
868 (citation omitted).
      To be entitled to relief on an ineffective assistance claim, Brown must
show both deficient performance by counsel and resulting prejudice.              See
Strickland v. Washington, 466 U.S. 668, 687 (1984). The state court was
required to apply “a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Id. at 689. To demonstrate
Strickland prejudice, Brown was required to show a reasonable probability that,
but for counsel’s deficiency, the result of the proceeding would have been
different. Id. at 694. Review of the state court’s application of the Strickland
standard is “doubly” deferential when § 2254(d) applies. Harrington v. Richter,
131 S. Ct. 770, 788 (2011). “[T]he question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland’s deferential standard.” Id.
      Brown contends that the state court’s denial of relief on his ineffective
assistance claim was improper given the evidence adduced at an evidentiary
hearing. Brown presented three eyewitnesses to the killing, who testified that
the first shots were fired by someone in the crowd, rather than by Brown. The
witnesses further averred that they had not been contacted by an attorney or by
an investigator. The gist of Brown’s claim is that his trial counsel performed
deficiently by failing to conduct an investigation that would have found these



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                                  No. 12-30126

eyewitnesses and that he suffered prejudice because their testimony would have
resulted in a different outcome at trial.
      “An attorney has a duty to independently investigate the charges against
his client.” Bower v. Quarterman, 497 F.3d 459, 467 (5th Cir. 2007). However,
counsel’s failure to hire an investigator, standing alone, is not indicative of
ineffective assistance. Id. at 470. “The decision to hire an investigator is
reviewed for reasonableness.” Id.
      In the state habeas proceeding, Brown presented no evidence from his
defense team regarding his counsel’s pretrial investigation and representation.
Brown provided no basis for the state habeas court to make an assessment of the
reasonableness of counsel’s pretrial investigation; he therefore failed to overcome
the “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689.
      Brown also claims that he was prejudiced by his trial counsel’s failure to
interview Alice Cook, III, Jamie Brock, and Elaine Dunn prior to trial. However,
he provided no evidence showing that any of these witnesses would have given
testimony favorable to his defense. Additionally, as to Cook and Brock, he failed
to show that they would have testified at trial. His claim therefore fails as he
has not made the requisite demonstration of prejudice.          See Alexander v.
McCotter, 775 F.2d 595, 602 (5th Cir. 1985).
      AFFIRMED.




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