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

                                                 FILED
                                                                         December 23, 2009
                                     No. 08-10051
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

PIERRO JACKSON,

                                                   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 Northern District of Texas
                              USDC No. 3:06-CV-494


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Pierro Jackson, Texas prisoner # 1152599, was convicted by a jury of
possession of cocaine and received a sentence of 25 years in prison. He filed a
28 U.S.C. § 2254 petition challenging his conviction, arguing in relevant part
that his trial counsel rendered ineffective assistance by failing to object to the
authority of the arresting officer, a Waxahachie police officer, to effectuate a
traffic stop in Dallas County; the cocaine was discovered as a result of the traffic


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-10051

stop. Under the Antiterrorism and Effective Death Penalty Act, a federal court
will not grant habeas relief on any claim that was adjudicated on the merits in
state court proceedings unless the state court’s ruling was the result of “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 if the state court decision “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.”    28 U.S.C. § 2254(d).      “[A] federal habeas court making the
‘unreasonable application’ inquiry should ask whether the state court’s
application of clearly established federal law was objectively unreasonable.”
Williams v. Taylor, 529 U.S. 362, 409 (2000).
      On appeal, Jackson contends that the officer lacked the authority to
effectuate a traffic stop outside of his jurisdiction for a minor traffic violation and
that if counsel had challenged the officer’s authority, the evidence obtained
during the traffic stop would have been suppressed. Jackson is correct in his
assertion that the officer lacked the authority under state law to stop Jackson
for a traffic violation. See State v. Kurtz, 152 S.W.3d 72, 73 (Tex. Crim. App.
2004). However, in order to sustain a claim of ineffective assistance Jackson
must show that counsel’s performance fell below an objective standard of
reasonableness and that this deficient performance resulted in prejudice to the
defense. See Strickland v. Washington, 466 U.S. 668, 689-96 (1984). Counsel’s
actions may not be considered deficient if “under the circumstances, the
challenged action might be considered sound trial strategy.” Id. at 689 (internal
quotation marks omitted). An attorney’s failure to file a motion to suppress may
constitute deficient performance if the evidence would have been suppressed as
a result of the motion. Ward v. Dretke, 420 F.3d 479, 488 (5th Cir. 2005).
Jackson bears the burden of proving that the cocaine admitted at his trial would
have been suppressed as a result of such a motion. See Kimmelman v. Morrison,
477 U.S. 365, 375 (1986).

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                                     No. 08-10051

      Our review of the statements of defense counsel before trial and the
officer’s trial testimony indicate that the stop of Jackson was actually the result
of surveillance activities and information obtained from a confidential informant.
An officer who personally views a felony or receives information from a reliable
third party about a felony offense may effectuate an arrest. See T EX. C RIM.
P ROC. C ODE A NN. art. 14.03(d); Adams v. Williams, 407 U.S. 143, 147 (1972); see
also Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005). Jackson has
not carried his burden of establishing that a motion to suppress filed by counsel
would have been successful. He thus has not established that counsel’s failure
to file such a motion constituted ineffective assistance.
                                 *        *         *
      Consequently, the judgment of the district court denying Jackson habeas
relief is AFFIRMED. Jackson’s motion for leave to file an out-of-time reply brief
is GRANTED. All other outstanding motions are DENIED.




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