                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 14a0035n.06

                                             No. 13-5403

                             UNITED STATES COURT OF APPEALS                              FILED
                                  FOR THE SIXTH CIRCUIT                            Jan 15, 2014
                                                                               DEBORAH S. HUNT, Clerk

JAMES E. FENTON, JR.,                                  )
                                                       )
           Petitioner-Appellant,                       )
                                                       )      ON APPEAL FROM THE UNITED
v.                                                     )      STATES DISTRICT COURT FOR
                                                       )      THE MIDDLE DISTRICT OF
ROLAND COLSON, Warden,                                 )      TENNESSEE
                                                       )
           Respondent-Appellee.                        )


           BEFORE: SUTTON, McKEAGUE, and WHITE, Circuit Judges.


           PER CURIAM. James E. Fenton, Jr., appeals the district court’s judgment denying his

petition for a writ of habeas corpus, filed under 28 U.S.C. § 2254.

           A jury found Fenton guilty of especially aggravated robbery, and the trial court sentenced

him to twenty years in prison. The Tennessee Court of Criminal Appeals affirmed the trial

court’s judgment, State v. Fenton, No. M2005-01761-CCA-R3-CD, 2006 WL 1896363 (Tenn.

Crim. App. July 7, 2006), and the Tennessee Supreme Court denied permission to appeal. The

Tennessee courts denied Fenton’s subsequent petition for post-conviction relief. Fenton v. State,

No. M2007-01661-CCA-R3-PC, 2008 WL 4457051 (Tenn. Crim. App. Oct. 2, 2008).

           Fenton filed a federal habeas petition, asserting several claims, including that his trial

counsel rendered ineffective assistance by failing to impeach the victim’s identification of

Fenton as one of the perpetrators with the contents of a 9-1-1 call that was made shortly after the

assault.     The district court denied the petition, concluding, among other things, that the
No. 13-5403
Fenton v. Colson

ineffective-assistance claim lacked merit. The court issued a certificate of appealability for the

ineffective-assistance claim.

       On appeal, Fenton argues that the district court erred by denying relief on his ineffective-

assistance claim.   He contends that his trial counsel should have impeached the victim’s

testimony that Fenton was one of the perpetrators with the contents of a 9-1-1 call that was made

after the assault. During the call, the victim, who had known Fenton for a long period of time,

stated that he could not identify the perpetrators. The victim also identified the perpetrators as a

black male and a white male, which conflicted with his subsequent statement to police that both

individuals were white.

       We review de novo a district court’s denial of a § 2254 petition. Tolliver v. Sheets, 594

F.3d 900, 915 (6th Cir. 2010). We may grant relief under § 2254 only if the state court decision

denying the claim on the merits was contrary to or an unreasonable application of clearly

established federal law or based on an unreasonable determination of the facts in light of the

evidence presented. 28 U.S.C. § 2254(d); Peoples v. Lafler, 734 F.3d 503, 510 (6th Cir. 2013).

       “Ineffective assistance under Strickland [v. Washington, 466 U.S. 668 (1984),] is

deficient performance by counsel resulting in prejudice, with performance being measured

against an objective standard of reasonableness under prevailing professional norms.” Rompilla

v. Beard, 545 U.S. 374, 380 (2005) (citations and internal quotation marks omitted). Our review

of a Strickland claim under § 2254(d) is doubly deferential. Campbell v. Bradshaw, 674 F.3d

578, 587 (6th Cir.), cert. denied, 133 S. Ct. 527 (2012). The relevant inquiry is “whether there is

any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington v.

Richter, 131 S. Ct. 770, 788 (2011).




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No. 13-5403
Fenton v. Colson

       The state courts reasonably applied Strickland in denying Fenton’s ineffective-assistance

claim. Fenton’s counsel was not deficient in failing to impeach the victim with the contents of

the 9-1-1 call. Counsel listened to the recording and reasonably determined that it had the

potential to inflame the jury against Fenton because the severity of the victim’s distress was

audible. Moreover, the impeachment value of the call, namely that the victim was unable to

identify the perpetrators shortly after the assault, was largely cumulative of the contents of the

police report that defense counsel used to challenge the victim’s identification of Fenton.

Further, even if counsel performed deficiently, Fenton did not suffer prejudice as a result.

Defense counsel effectively used the police report to demonstrate that the victim was unable to

identify Fenton as one of the perpetrators shortly after the assault, and it is unlikely that making a

similar point using the 9-1-1 call would have had an impact on the jury’s verdict.

       Accordingly, we affirm the district court’s judgment.




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