     Case: 09-31046     Document: 00511256393          Page: 1    Date Filed: 10/07/2010




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

                                                 FILED
                                                                           October 7, 2010
                                       No. 09-31046
                                                                            Lyle W. Cayce
                                                                                 Clerk
EDDIE D. LEE,

                                                   Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                   Respondent-Appellee


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:08-CV-5180


Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.
PER CURIAM:*
        Eddie D. Lee, Louisiana prisoner #102226, appeals the denial of his
28 U.S.C. § 2254 application. He was charged with possession with intent to
distribute cocaine but convicted of simple possession. The district court granted
Lee a certificate of appealability on whether the Louisiana appellate court on
postconviction review applied Strickland v. Washington, 466 U.S. 668, 687
(1984), in an objectively unreasonable manner by concluding that Lee suffered
no prejudice when his counsel allowed him to be tried in prison clothing.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-31046    Document: 00511256393 Page: 2         Date Filed: 10/07/2010
                                 No. 09-31046

      Habeas relief may not be granted with respect to a claim that was
adjudicated on the merits in state court, unless the state decision “was contrary
to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” § 2254(d)(1), or “was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” § 2254(d)(2). “A merely incorrect state
court decision is not sufficient to constitute an unreasonable application of
federal law; rather, the decision must be objectively unreasonable.” Virgil v.
Dretke, 446 F.3d 598, 604 (5th Cir. 2006). We may not reverse a state court’s
decision “merely because we would reach a different outcome”; rather we must
“conclude that the state court decision applies the correct legal rule to a given
set of facts in a manner that is so patently incorrect as to be ‘unreasonable.’”
Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001).
      Section 2254(d)(2) applies to the state court’s overall determination of facts
relevant to its decision. Fields v. Thaler, 588 F.3d 270, 279 (5th Cir. 2009). A
state court’s discreet factual findings are presumed to be correct, but a petitioner
may rebut such presumption with clear and convincing evidence.                  Id.;
§ 2254(e)(1). A state court’s “factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in
the first instance.” Wood v. Allen, 130 S. Ct. 841, 849 (2010).
      To obtain relief based on the ineffectiveness of counsel, Lee must establish
that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. See Strickland, 466 U.S. at 687. To establish prejudice,
he must show that there is a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have been different.
See id. at 694.
      The state appellate court reasoned that there was no Strickland prejudice
because the evidence of Lee’s guilt was “clear” and “overwhelming.” Lee argues
that the evidence was not “overwhelming” and that the state court’s evaluation

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                                 No. 09-31046

of the evidence was therefore “an unreasonable determination of the facts in
light of the evidence” adduced at trial. The State argues that the trial evidence
was sufficient to establish Lee’s guilt so that the state appellate court’s
determination of the facts was not unreasonable. In addition, the State argues
that a lack or prejudice is shown by the defense’s success in getting the verdict
it sought on the lesser offense of drug possession.
      We need not decide specifically whether the evidence against Lee was
“overwhelming” but only whether “counsel’s unprofessional errors . . . undermine
confidence in the outcome” of the trial. Strickland, 466 U.S. at 694. At trial, a
police officer testified that he chased Lee into an alley where Lee threw down a
beige packet. After Lee was handcuffed the officer retrieved the beige packet
which contained crack cocaine.       The officer’s testimony was clear, direct,
unchallenged, and corroborated indirectly by two other policeman. Accordingly,
the state court’s determination of the facts in the light of the trial evidence was
not unreasonable under § 2254(d)(2). See Wood, 130 S. Ct. at 849. Lee has not
shown that the state appellate court’s application of Strickland was “so patently
incorrect as to be [objectively] ‘unreasonable.’” Gardner, 247 F.3d at 560; see
Virgil, 446 F.3d at 604. The judgment of the district court is AFFIRMED.




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