     Case: 16-20366       Document: 00514525715        Page: 1    Date Filed: 06/22/2018




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

                                                                                   FILED
                                    No. 16-20366                               June 22, 2018
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
CURTIS ALLEN KIRKLAND,

                                                 Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                     Appeal from the United States District Court
                          for the Southern District of Texas
                               USDC No. 4:15-CV-2649


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
         Curtis Allen Kirkland, Texas prisoner # 01790491, filed a 28 U.S.C.
§ 2254 application challenging his conviction and sentence for possession of
methamphetamine with the intent to deliver. He argued that he received
ineffective assistance of counsel during the guilt and penalty phases of his state
trial.       After the district court denied relief, we granted a certificate of



         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. 16-20366

appealability on Kirkland’s claims of penalty-phase ineffective assistance and
appointed him counsel for the purpose of pursuing his appeal.
      Relief under Section 2254 is appropriate when the underlying state court
adjudication “(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.” 28 U.S.C. § 2254(d).
      The thrust of Kirkland’s appeal is that ineffectiveness of counsel was
acknowledged by the Texas Court of Criminal Appeals in his state habeas
appeal, but that the court then erred in finding no prejudice. See Strickland v.
Washington, 466 U.S. 668, 687–94 (1984). Specifically, he claims prejudice
from his counsel’s failure to object to testimony about methamphetamine’s
societal effects, a law enforcement officer being offered as an expert on
methamphetamine, testimony about Kirkland’s ability to be rehabilitated, and
testimony about the amount of methamphetamine found on Kirkland. He
argues that another case from the Texas Court of Criminal Appeals in which
relief was granted compels granting relief to him. See Ex Parte Lane, 303
S.W.3d 702 (Tex. Crim. App. 2009). The state court in Lane held that the
defendant had been prejudiced by his counsel’s errors during the penalty
phase. Id. at 719–20. His attorney failed to object to a law enforcement
officer’s testimony about the addictive nature of methamphetamine, testimony
about the societal dangers of the drug, and inflammatory statements about the
amount of methamphetamine found on Lane.            Id. at 719.   According to
Kirkland, “no reasonable jurist would compare the errors in Lane and Kirkland
and conclude Kirkland did not get worse treatment.”           This is because
Kirkland’s lengthy criminal history makes prejudice clear because jurors will



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                                  No. 16-20366

“accept improper implications that [he] is in a class (methamphetamine users)
more likely to commit future bad acts” and thus find him more deserving of a
lengthier sentence. Despite the failure of Kirkland’s counsel to object, the
Texas Court of Criminal Appeals found he had not shown prejudice, citing
Kirkland’s lengthy criminal history and that the objectionable testimony was
not egregious.
      Regardless of differences that might exist between the two state
appellate court decisions, Kirkland must show that the ruling he had failed to
show prejudice from his counsel’s errors “was contrary to, or an unreasonable
application of, the standards, provided by the clearly established federal law.”
Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003). The inquiry under
AEDPA is “determining whether the state habeas court’s application of the law
to the facts was reasonable.” Ward v. Dretke, 420 F.3d 479, 499 (5th Cir. 2005).
“[I]n order to grant habeas relief from a state conviction following rejection of
the petitioner’s state habeas application, we must conclude that the state
habeas court’s application of federal law was not only incorrect, but ‘objectively
unreasonable.’” Id.
      In this case, the state court, relying on the nature of the errors and
Kirkland’s criminal history, concluded that Kirkland had not shown prejudice.
Any inconsistencies, and we do not hold there are any, between Lane and this
case are beside the point. In his habeas proceedings, Kirkland has not shown
“that the state court’s ruling on the claim being presented in federal court [is]
so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
      AFFIRMED.




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