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

                                                                              FILED
                                                                             July 12, 2013

                                        No. 11-20682                         Lyle W. Cayce
                                                                                  Clerk

CHARLES RAY DORSEY,

                                                    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



Before OWEN and HAYNES, Circuit Judges, and LEMELLE,* District Judge.
PRISCILLA R. OWEN, Circuit Judge:
      Charles Ray Dorsey, Texas prisoner # 859151, appeals the judgment of the
district court dismissing his application for a writ of habeas corpus under 28
U.S.C. § 2254, which challenges his Texas conviction for murder. We affirm.
                                                I
      Dorsey was tried for intentionally and knowingly causing the death of his
wife, Pamela Dorsey, by shooting her, in violation of Texas Penal Code section




      *
          District Judge of the Eastern District of Louisiana, sitting by designation.
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19.02(b)(1). The jury found Dorsey guilty and sentenced him to a 40-year prison
term.1
       The evidence of Dorsey’s guilt was circumstantial but substantial. Pamela
Dorsey was shot shortly after 2:00 a.m. either by her husband or their son C.D.,
who was two-and-a-half years old at the time of his mother’s death. Dorsey
maintained that he left the bedroom where his wife was on the bed and that C.D.
had withdrawn the murder weapon, a pistol, from his mother’s purse and
accidentally discharged the weapon, killing her. As part of its evidence to rebut
Dorsey’s version of the facts, the State offered a videotape created by Bonnie
Tidwell, who was then a detective with the Montgomery County Sheriff’s
Department and who was trained to work with children involved in
investigations. Following Pamela Dorsey’s death, Tidwell brought C.D. to law
enforcement offices to attempt to determine whether C.D. was physically able
to remove the murder weapon from its holster and to pull its trigger. Neither
Dorsey nor his counsel was present or was notified. Tidwell placed C.D. in an
interview room with the weapon. The interactions were recorded by a video
camera. While in the interview room, C.D. attempted but failed to unhook the
strap that held the gun in its holster. After Tidwell aided C.D. in unhooking the
strap, C.D. withdrew the revolver from its holster. At that time, the firearm was
in “double action” mode, which means that the hammer was not cocked before
the trigger is pulled and that one’s pull of the trigger must first cock the hammer
before the weapon can be fired. Double action mode increases the amount of
force required to pull the trigger, which the evidence reflected was eleven pounds



       1
         The path to Dorsey’s conviction was long. Dorsey was first tried and convicted for the
murder in 1998. In 2000, on direct review, a Texas Court of Appeals reversed Dorsey’s
conviction and remanded for a new trial. In June 2001, Dorsey was tried to a second time.
The trial ended in a mistrial, after the jury told the court they were “hopelessly divided” and
could not reach a unanimous verdict. In November 2001, Dorsey was tried again, leading to
the conviction he now challenges.

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                                         No. 11-20682

of pressure. When the weapon was in double action mode, C.D. failed to pull the
trigger. Once Tidwell manually cocked the hammer on the revolver—putting it
in “single action” mode—C.D. was able to pull the trigger using two fingers. The
evidence reflected that the amount of pressure required to fire the weapon in
single-action mode was four pounds. There was no evidence at trial as to
whether the revolver was in single or double action mode when the fatal shot
was fired.
         At trial, counsel filed a motion to suppress the videotape on a number of
grounds. The trial court granted the motion in part, ruling that the audio
portion of the video could not be played before the jury. Tidwell was called as a
witness and presented a limited narrative of the video. Dorsey focuses only on
the video in the two claims for relief before us. Tidwell’s testimony is not at
issue.
         Following his conviction, Dorsey appealed to the Ninth Court of Appeals
of Texas, asserting sixteen issues.2 Although six issues related to the admission
of the videotape, Dorsey did not argue that his rights under the Confrontation
Clause of the Sixth Amendment had been violated.3 The Ninth Court of Appeals
of Texas sustained one of Dorsey’s issues and affirmed Dorsey’s conviction as
modified.4
         Dorsey did not timely file a petition for discretionary review (PDR) in the
Texas Court of Criminal Appeals. Four years after the intermediate appellate
court issued its decision, however, Dorsey filed a state petition for habeas corpus
asserting that his appellate counsel rendered ineffective assistance by failing to
advise him that his conviction had been affirmed on appeal. The Texas Court


         2
             Dorsey v. State, 117 S.W.3d 332 (Tex. App.—Beaumont 2003, pet. ref’d).
         3
             Id. at 336-37.
         4
             Id. at 344.

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                                        No. 11-20682

of Criminal Appeals permitted Dorsey to file an out-of-time PDR to challenge the
Texas intermediate court of appeals’ judgment.5 In his PDR, Dorsey asserted for
the first time on direct appeal that the admission of the videotape of C.D.
violated his rights under the Confrontation Clause based on the Supreme Court’s
decision in Crawford v. Washington,6 which had issued following his
intermediate appeal. The Texas Court of Criminal Appeals refused Dorsey’s
PDR without opinion. Dorsey thereafter filed a petition for writ of certiorari in
the Supreme Court,7 which was denied.8
       Dorsey later filed a second state habeas corpus petition, which included his
claim that the admission of the videotape of C.D. violated his rights under the
Confrontation Clause and that his appellate counsel rendered ineffective
assistance by failing to raise this issue before Texas’s Ninth Court of Appeals.
The state trial court, which under Texas law makes preliminary findings of fact
and conclusions of law on petitions for habeas corpus,9 concluded that Dorsey’s
Confrontation Clause claim could not be addressed in an application for habeas
corpus relief, reasoning that this claim had been raised and rejected on direct
appeal. The state habeas trial court also concluded that Dorsey “fail[ed] to prove
his ineffective assistance of . . . appellate counsel [claim] by a preponderance of
the evidence.” The state trial court recommended to the Texas Court of Criminal
Appeals that it deny relief, and that recommendation was accepted with a brief



       5
        Ex parte Dorsey, No. AP-75762, 2007 WL 2650664, at *1 (Tex. Crim. App. Sept. 12,
2007) (per curiam).
       6
           541 U.S. 36 (2004).
       7
        Petition for Writ of Certiorari, Dorsey v. Texas, 554 U.S. 920 (2008) (mem.) (No. 07-
1382), 2008 WL 1969302.
       8
           Dorsey v. Texas, 554 U.S. 920 (2008) (mem.).
       9
           See TEX. CODE CRIM. PROC. ANN. art. 11.07 § 3 (West 2005 & Supp. 2011).

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                                        No. 11-20682

entry by the Texas Court of Criminal Appeals explaining that the petition was
“[d]enied without written order on findings of trial court without hearing.”
      Dorsey then filed the instant application for habeas corpus relief under
§ 2254, reurging, among other claims, his Confrontation Clause and ineffective
assistance of appellate counsel claims related to the admission of the videotape.
The district court granted the State’s motion for summary judgment and denied
Dorsey’s application, concluding that, even assuming admission of the videotape
violated the Confrontation Clause, Dorsey failed to show his trial was
fundamentally unfair or that there was a reasonable probability that the verdict
would have been different had the video been excluded. The district court also
held that the state appellate counsel’s decision not to raise the Confrontation
Clause issue before the Ninth Court of Appeals of Texas fell within the wide
range of reasonable professional assistance and that even assuming there were
unprofessional errors, the result of the proceeding would not have been different
but for such errors. This appeal followed, and we granted a certificate of
appealability on Dorsey’s Confrontation Clause and ineffective assistance of
appellate counsel claims related to the admission of the videotape.
                                               II
      In this habeas corpus appeal, we review the district court’s findings of fact
for clear error and its conclusions of law de novo,10 and we may affirm on any
ground supported by the record.11 Our authority to grant relief to a person held
in custody pursuant to a state judgment is narrowly circumscribed by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). To the extent a prisoner’s claim was adjudicated on the merits


      10
         Harrison v. Quarterman, 496 F.3d 419, 423 (5th Cir. 2007); see also Richards v.
Thaler, 710 F.3d 573, 575 (5th Cir. 2013) (applying this standard when the district court
granted summary judgment to the State while denying the petitioner’s application).
      11
           Fisher v. Texas, 169 F.3d 295, 299 (5th Cir. 1999).

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                                          No. 11-20682

in a state court proceeding, § 2254(d) provides that a federal court may not grant
habeas corpus relief unless the state court’s 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.12
Section 2254(d)(1)’s “‘contrary to’ and ‘unreasonable application’ clauses have
independent meaning.”13 The “contrary to” clause applies when the state court
fails to apply a legal rule announced by the Supreme Court or reaches a result
opposite to a previous decision of the Court on materially indistinguishable
facts.14 The “unreasonable application” clause applies when the state court
“correctly identifies the governing legal rule but applies it unreasonably to the
facts of a particular prisoner’s case.”15              “For purposes of § 2254(d)(1), ‘an
unreasonable application of federal law is different from an incorrect application
of federal law.’”16          Habeas corpus serves as “‘a guard against extreme




       12
            28 U.S.C. § 2254(d).
       13
            Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S. 362, 404-05
(2000)).
       14
            Williams, 529 U.S. at 405-06.
       15
            Id. at 407-08.
       16
         Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (quoting Williams, 529 U.S. at 410);
see also Renico v. Lett, 130 S. Ct. 1855, 1862 (2010) (explaining that an unreasonable
application of federal law is different from an incorrect application of federal law and that this
highly deferential standard “demands that state-court decisions be given the benefit of the
doubt” (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)) (internal quotation
marks omitted)).

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malfunctions in the state criminal justice systems,’ not a substitute for ordinary
error correction through appeal.”17
                                               III
        Dorsey argues that introduction of the videotape of C.D. violated his Sixth
Amendment right to confront witnesses against him under the rule announced
in Crawford. “It is settled that a federal habeas court may overturn a state
court’s application of federal law only if it is so erroneous that ‘there is no
possibility fairminded jurists could disagree that the state court’s decision
conflicts with [the Supreme] Court’s precedents.’”18 Applying that deferential
standard, we conclude that fairminded jurists could disagree as to whether the
Texas Court of Criminal Appeals’ resolution of Dorsey’s Confrontation Clause
claim was in conflict with clearly established Supreme Court precedent.
                                                A
        As an initial matter, we clarify the applicability of Crawford to Dorsey’s
claim.       Dorsey and the State both assume that this case is governed by
Crawford, which the Supreme Court decided in 2004. Dorsey’s trial took place
in 2001, and his direct appeal to Texas’s Ninth Court of Appeals occurred in
2003.        Since the Supreme Court has held that Crawford does not apply
retroactively to cases in collateral review,19 one might question whether
Crawford applies to Dorsey’s claim.
        The parties correctly conclude that it does. Although new rules of criminal
procedure do not necessarily apply retroactively to cases on collateral review, the
same is not true with respect to rules announced when a case is still pending on


        17
        Richter, 131 S. Ct. at 786 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)
(STEVENS, J., concurring in the judgment)).
        18
          Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (per curiam) (quoting Richter, 131
S. Ct. at 786).
        19
             Whorton v. Bockting, 549 U.S. 406, 421 (2007).

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                                          No. 11-20682

direct review: where a case remains pending on direct review and the
defendant’s conviction is not yet final, a court, whether state or federal, must
apply a recently announced rule to the cases before it.20 The Texas Court of
Criminal Appeals permitted Dorsey to file an out-of-time PDR in 2007. That
court subsequently denied the petition on February 6, 2008, and the disposition
of Dorsey’s direct appeal became final in March 2008. Dorsey’s conviction
therefore did not become final21 until several years after Crawford was decided.
       Though Crawford had not issued at the time that Dorsey was convicted in
state court, Dorsey did assert in the state trial court the same basic principles
set forth in Crawford. Dorsey argued in the state trial court that admission of
the video would violate his Sixth Amendment right to confront and cross-
examine C.D. The trial court held a hearing and rejected this argument.
Appellate counsel failed to raise this issue in the direct appeal to the Ninth
Court of Appeals of Texas. It was raised for the first time on direct appeal in
Dorsey’s out-of-time PDR presented to the Texas Court of Criminal Appeals. A
number of other federal law issues were included in that petition, and the Texas
court of last resort denied the PDR without comment. Even when a state court
summarily denies federal law claims, § 2254(d) of AEDPA applies if the claims
were adjudicated on the merits.22 It is not necessary for the state court to
indicate affirmatively that its disposition of federal claims is “on the merits.”23
“When a federal claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court adjudicated the claim

       20
            Griffith v. Kentucky, 479 U.S. 314, 328 (1987); see also Bockting, 549 U.S. at 416-17.
       21
         See Ybanez v. Johnson, 204 F.3d 645, 645-46 (5th Cir. 2000) (per curiam); cf. Ex parte
Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (en banc) (“[G]ranting an out-of-time
appeal restores the pendency of the direct appeal . . . .”).
       22
            See, e.g., Cullen v. Pinholster, 131 S. Ct. 1388, 1402 (2011).
       23
            Harrington v. Richter, 131 S. Ct. 770, 784 (2011) (internal quotation marks omitted).

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                                      No. 11-20682

on the merits in the absence of any indication or state-law procedural principles
to the contrary.”24 There is no indication in the record before us that the Texas
Court of Criminal Appeals denied Dorsey’s PDR, which included his
Confrontation Clause claim, on procedural grounds. The presumption that a
state court decision was on the merits “is a strong one that may be rebutted only
in unusual circumstances.”25 Neither Dorsey nor the State has attempted to
rebut the presumption that the Texas court’s decision as to the Confrontation
Clause claim was on the merits. The only conclusion that we may reach based
on the record before us is that the Texas Court of Criminal Appeals addressed
the merits of Dorsey’s Confrontation Clause claim and other federal claims on
the merits when it denied his out-of-time appeal.
       We note that with regard to the state habeas proceedings, the
Confrontation Clause issue had a somewhat convoluted procedural path. In the
state habeas proceeding, the trial court inexplicably found in its Findings of Fact
that the Confrontation Clause issue was raised and rejected on direct appeal to
the Ninth Court of Appeals. This was factually incorrect, and it also resulted in
internal conflicts in the state habeas trial court’s findings and conclusions. If the
Confrontation Clause claim had been presented to the Ninth Court of Appeals,
as the state habeas court found in its Findings of Fact, then there could not have
been an ineffective assistance of counsel claim based on the failure of counsel to
present the Confrontation Clause claim to the Ninth Court of Appeals. Yet, the
state habeas trial court addressed the merits of Dorsey’s claim that counsel was
ineffective in failing to raise the Confrontation Clause claim in the Ninth Court
of Appeals.        (We consider the ineffective assistance claim below.)             These


       24
            Id. at 784-85.
       25
        Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013); see also id. (explaining that the
presumption “that the federal claim was adjudicated on the merits . . . can in some limited
circumstances be rebutted”).

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somewhat conflicting rulings in the state habeas trial court’s recommendations
are immaterial to our analysis, however. The state habeas trial court correctly
noted in its Conclusions of Law that the Confrontation Clause claim had been
presented and rejected on direct appeal to the Texas Court of Criminal Appeals.
      To be clear, we are applying § 2254(d) to the Texas Court of Criminal
Appeals’ summary denial on the merits of Dorsey’s out-of-time PDR, which
included his Confrontation Clause claim. In these circumstances, the Supreme
Court instructs that a petitioner “can satisfy the ‘unreasonable application’
prong of § 2254(d)(1) only by showing that ‘there was no reasonable basis’ for the
[state court’s] decision.”26 We are to “‘determine what arguments or theories . . .
could have supporte[d] the state court’s decision; and then [we] must ask
whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of [the Supreme
Court].’”27
      The Confrontation Clause of the Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.”28 The Supreme Court explained in Crawford that
the confrontation right bars the introduction of “testimonial statements” of a
witness who does not appear at trial “unless he [is] unavailable to testify, and
the defendant had [] a prior opportunity for cross examination.”29 This rule,




      26
           Pinholster, 131 S. Ct. at 1402.
      27
           Id. (quoting Richter, 131 S. Ct. at 786) (first and second alterations in original).
      28
           U.S. CONST. amend. VI, cl. 2.
      29
           Crawford v. Washington, 541 U.S. 36, 53-54 (2004).

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however, applies only to statements offered to prove the truth of the matter
asserted.30
       The State argues that C.D.’s actions, shown in the video, were not
“statements.”         Dorsey contends that C.D.’s actions were in response to
structured, formal questions posed during an interrogation that was intended
to gain information for later use at a criminal trial. He argues that C.D.’s
actions were non-verbal responses given in the course of his communications
with Tidwell and were used by the State as statements or assertions that C.D.
could not fire the handgun in double action mode. Dorsey maintains that C.D.’s
nonverbal, demonstrative responses to questions are testimonial in nature.
Dorsey cites the Supreme Court’s decision in Bullcoming v. New Mexico,31 which
held that one scientist could not testify in court to authenticate another
scientist’s forensic laboratory report that asserted a defendant’s blood alcohol
content was at a certain level.32 Dorsey argues that C.D.’s actions could have
meant that he did not want to fire the gun at the time that he was asked to pull
the trigger when the weapon was in double action mode, and that for various
other reasons, the video was highly prejudicial.
       In support of his argument that C.D.’s actions were testimonial, Dorsey




       30
         E.g., Williams v. Illinois, 132 S. Ct. 2221, 2228 (2012) (plurality opinion) (“[I]t is
settled that the Confrontation Clause does not bar the admission of [nonhearsay]
statements.”); Crawford, 541 U.S. at 59 n.9 (“The Clause also does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter
asserted.”); United States v. Polidore, 690 F.3d 705, 719 n.15 (5th Cir. 2012) (“[T]o constitute
a Confrontation Clause violation, the statement must be used as hearsay—in other words, it
must be offered for the truth of the matter asserted.” (quoting United States v. Davis, 577 F.3d
660, 670 (6th Cir. 2009)) (internal quotation marks omitted)).
       31
            131 S. Ct. 2705 (2011).
       32
            Bullcoming, 131 S. Ct. at 2716-17.

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cites our court’s decision in United States v. Green, in which we held that a
defendant’s Fifth Amendment right to counsel had been violated.33                          We
concluded that evidence of Green’s actions in response to questions by law
enforcement officials that included his pointing out firearms he owned and
unlocking a locked briefcase and safe that contained firearms was “testimonial
and communicative in nature.”34
       Our decision in Green cannot be considered in this habeas proceeding.
First, Green involved a challenge under the Fifth Amendment. It did not
address what constitutes a statement for Confrontation Clause purposes.
Second, and most importantly, Green was a decision of this court, not of the
Supreme Court, and therefore it does not constitute federal law “as determined
by the Supreme Court of the United States.”35
       We have not found, and Dorsey does not cite, any decision of the Supreme
Court that clearly establishes the contours of the Confrontation Clause when
applied to facts even remotely analogous to a soundless video of a child’s
responses and actions during an interview with law enforcement officials.
Dorsey cites the Supreme Court’s decision in Pennsylvania v. Muniz,36 but that
case concerned the self-incrimination clause of the Fifth Amendment, and the
Court held that even though “the slurred nature of [the defendant’s] speech was
incriminating . . . ‘the lack of muscular coordination of his tongue and mouth’ is


       33
            272 F.3d 748, 750 (5th Cir. 2001).
       34
            Id. at 753.
       35
         28 U.S.C. § 2254(d)(1); see also Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per
curiam) (“The Sixth Circuit also erred by consulting its own precedents, rather than those of
this Court, in assessing the reasonableness of the Kentucky Supreme Court’s decision.”);
Renico v. Lett, 130 S. Ct. 1855, 1866 (2010) (holding that a Sixth Circuit decision “does not
constitute ‘clearly established Federal law, as determined by the Supreme Court’” (quoting
§ 2254(d)(1))).
       36
            496 U.S. 582 (1990).

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not itself a testimonial component of [the defendant’s] responses to [an officer’s]
introductory questions.”37 We cannot say that the Texas Court of Criminal
Appeals’ denial of Dorsey’s Confrontation Clause claim “was so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility of fairminded disagreement.”38
                                                B
       Even had the state court unreasonably concluded, within the meaning of
AEDPA, that there was no Confrontation Clause violation, habeas relief could
not be granted unless Dorsey proved prejudice.39 In a habeas proceeding, “an
error is harmless unless it ‘had substantial and injurious effect or influence in
determining the jury’s verdict.’”40 We agree with the federal district court that
Dorsey has not made that showing.
       The federal district court concluded that the video of C.D. was cumulative
of other evidence that suggested that the child was incapable of firing the gun
when it was not cocked. The district court also concluded that the evidence of
Dorsey’s guilt was overwhelming. Again, we agree. Pamela Dorsey’s co-worker
testified that the victim was unhappy in her marriage but was afraid that
Dorsey would take C.D. away from her. Pamela Dorsey asked for a divorce two
days before she was shot in the back of the head. There was a bruise on Pamela
Dorsey’s body that an expert testified suggested she was hit by an object. There
was also hemorrhaging that suggested that Pamela Dorsey was strangled before
she was shot. We cannot say, based on this record, that the admission of the



       37
            Muniz, 496 U.S. at 590-91 (internal citation omitted).
       38
          Parker, 132 S. Ct. at 2155 (quoting Harrington v. Richter, 131 S. Ct. 770, 786-87
(2011)) (internal quotation marks omitted).
       39
            See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
       40
            Fry v. Pliler, 551 U.S. 112, 116 (2007) (quoting Brecht, 507 U.S. at 631).

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                                           No. 11-20682

video of C.D. had a substantial or injurious effect on the outcome of the jury’s
verdict.
                                                 IV
       Dorsey maintains that he received ineffective assistance of counsel during
his intermediate appeal to the Ninth Court of Appeals of Texas because counsel
did not make a Confrontation Clause argument related to the admission of the
videotape before that court. Dorsey’s claim fails.
       A criminal defendant has a constitutional right to receive effective
assistance of counsel on his first appeal.41                In a direct appeal, ineffective
assistance of counsel claims are governed by the standard established by the
Supreme Court in Strickland v. Washington.42 To prove an ineffective assistance
claim, a defendant must demonstrate both that his “counsel’s performance was
deficient” and “that the deficient performance prejudiced the defense.”43
Recognizing that “the purpose of the effective assistance guarantee . . . is not to
improve the quality of legal representation” but instead “to ensure that criminal
defendants receive a fair trial,” the Supreme Court has explained that “[j]udicial
scrutiny of counsel’s performance must be highly deferential.”44 The Court has
held that “[t]he benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just
result.”45


       41
            See, e.g., Evitts v. Lucey, 469 U.S. 387, 397-98 (1985).
       42
            466 U.S. 668 (1984).
       43
            Strickland, 466 U.S. at 687.
       44
            Id. at 689.
       45
         Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (alteration in original) (quoting
Strickland, 466 U.S. at 686) (internal quotation marks omitted).

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      Our scrutiny is “doubly deferential”46 in a habeas corpus proceeding’s
review of a state court’s Strickland determination: “[w]hen § 2254(d) applies, the
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.”47 Dorsey “must demonstrate that it was necessarily
unreasonable for the [Texas Court of Criminal Appeals] to conclude: (1) that he
had not overcome the strong presumption of competence; and (2) that he had
failed to undermine confidence in [the outcome of his direct appeal].”48 Here, the
Texas court could have reasonably concluded that Dorsey’s appellate counsel’s
failure to raise a Confrontation Clause claim related to admission of the video
of C.D. either did not amount to constitutionally deficient performance or did not
prejudice Dorsey’s appeal.
                                               A
      To prove that counsel’s performance was deficient, a defendant must show
“that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment” based on “an
objective standard of reasonableness.”49 “[C]ounsel should be ‘strongly presumed
to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.’”50                Although this standard
requires counsel to assert “[s]olid, meritorious arguments based on directly




      46
           Knowles v. Mirzayance, 556 U.S. 111, 112 (2009).
      47
           Harrington v. Richter, 131 S. Ct. 770, 788 (2011).
      48
           Pinholster, 131 S. Ct. at 1403.
      49
           Strickland, 466 U.S. at 687-88.
      50
           Pinholster, 131 S. Ct. at 1403 (quoting Strickland, 466 U.S. at 690).

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                                        No. 11-20682

controlling precedent,”51 it does not mandate that counsel “raise every
nonfrivolous ground of appeal available.”52 When, as here, counsel files a merits
brief, a defendant generally must show that “a particular nonfrivolous issue was
clearly stronger than issues counsel did present.”53                  “There is a ‘strong
presumption’ that counsel’s attention to certain issues to the exclusion of others
reflects trial tactics rather than ‘sheer neglect.’”54
       Dorsey contends that since counsel made a Confrontation Clause objection
at trial, counsel must have believed that this argument had merit, and,
therefore, provided deficient performance when counsel failed to raise that claim
on appeal to the Ninth Court of Appeals. This argument is unavailing. Under
Texas law, in order to raise an issue on appeal, one must have brought the issue
to the trial court’s attention through a timely objection or motion.55 Given this
rule, prudent trial counsel, acting from an ex ante perspective, may object with
respect to any issue that could potentially be a ground for appeal in order to
preserve the possibility of appellate review. The mere fact that counsel objects,
even strenuously, to a particular ruling in the trial court does not mean that
counsel must raise that objection on appeal; “appellate counsel who files a merits




       51
          United States v. Conley, 349 F.3d 837, 841 (5th Cir. 2003) (quoting United States v.
Phillips, 210 F.3d 345, 348 (5th Cir. 2000)) (internal quotation marks omitted).
       52
         Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998) (citing Evitts v. Lucey, 469 U.S.
387, 394 (1985)).
       53
            Smith v. Robbins, 528 U.S. 259, 288 (2000).
       54
          Harrington v. Richter, 131 S. Ct. 770, 790 (2011) (quoting Yarborough v. Gentry, 540
U.S. 1, 8 (2003) (per curiam)).
       55
         TEX. R. APP. P. 33.1(a) (providing that issues on appeal must have been objected to
and ruled on below).

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                                           No. 11-20682

brief need not (and should not) raise every nonfrivolous claim, but rather may
select among them in order to maximize the likelihood of success on appeal.”56
       Considered through AEDPA’s deferential lens, the Texas Court of
Criminal Appeals could have reasonably concluded that counsel’s decision not
to raise Dorsey’s Confrontation Clause claim on appeal was a reasonable
strategic decision as to which issues should be presented to the Ninth Court of
Appeals. The Texas court could have acknowledged that Dorsey’s Confrontation
Clause claim was debatable and therefore not clearly stronger than the sixteen
other issues—one of which the Ninth Court of Appeals sustained57—that
appellate counsel brought on Dorsey’s intermediate appeal.58
                                                 B
       Alternatively, the Texas Court of Criminal Appeals could have reasonably
concluded that Dorsey failed to prove prejudice. Establishing that counsel’s
performance prejudiced the defense requires showing “a reasonable probability
that, but for his counsel’s unreasonable failure to [raise an issue], he would have
prevailed on his appeal.”59 “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.”60 Proving prejudice requires more
than a showing that counsel’s “errors had some conceivable effect on the outcome




       56
            Smith, 528 U.S. at 288.
       57
            Dorsey v. State, 117 S.W.3d 332, 344 (Tex. App.—Beaumont 2003, pet. ref’d).
       58
        See, e.g., Richter, 131 S. Ct. at 791 (“[I]t is difficult to establish ineffective assistance
when counsel’s overall performance indicates active and capable advocacy.”).
       59
            See Smith, 528 U.S. at 285 (citing Strickland v. Washington, 466 U.S. 688, 694
(1984)).
       60
            Strickland, 466 U.S. at 694.

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                                              No. 11-20682

of the proceeding.”61 “The likelihood of a different result must be substantial, not
just conceivable.”62
       The Texas court could have reasonably concluded that the result of
Dorsey’s intermediate appeal would have been no different had counsel raised
the Confrontation Clause claim on appeal.63 Even were the admission of the
video of C.D. a violation of the Confrontation Clause, the error would have to be
harmful to result in reversal on direct appeal and a new trial. Although the
harmful error standard on direct appeal is more exacting than the prejudice
standard in habeas proceedings, the Texas Court of Criminal Appeals could have
reasonably concluded that any Confrontation Clause violation was not harmful
error for the same reasons that the federal district court concluded that any such
error did not result in prejudice. The video was cumulative of other evidence,
and the evidence of Dorsey’s guilt was strong.
                                          *        *         *
       For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment to the State and denial of Dorsey’s application for habeas
corpus under § 2254.




       61
            Id. at 693.
       62
            Richter, 131 S. Ct. at 792.
       63
         See Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001) (“Each of the grounds
underlying the alleged errors by counsel have been . . . found to lack merit. Therefore,
appellate counsel’s failure to pursue relief on those bases does not constitute ineffective
assistance of counsel since no prejudice resulted therefrom . . . .”).

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