                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                         F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                          November 7, 2006

                          _______________________                    Charles R. Fulbruge III
                                                                             Clerk
                                No. 05-30152
                          _______________________


                                ROGER COMEAUX,

                                                        Respondent-Appellee,

                                    versus


          BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                       Petitioner-Appellant,



          On Appeal from the United States District Court
               for the Eastern District of Louisiana
                          No. 2:03-CV-1928


Before JONES, Chief Judge, and DAVIS and GARZA, Circuit Judges.

PER CURIAM:*

           Following    his     conviction    for    simple   burglary       of   an

inhabited dwelling, the district court granted Roger Comeaux habeas

corpus   relief   under    28    U.S.C.   §   2254    based   on     ineffective

assistance of counsel.          As the district court overlooked the

requirements of AEDPA, it applied the incorrect standard of review;

as the record does not support Comeaux’s claims, we REVERSE.




     *
            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opinion should not be published and is not precedent except under the limited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.
                               I.   BACKGROUND

            In July 1998, Roger Comeaux was arrested at an apartment

complex in New Orleans, Louisiana.             After responding to a call

reporting suspicious activity, the police found Comeaux carrying a

white sack and attempting to scale a wall of the complex.              The sack

was later found to contain items from a ransacked apartment, which

a witness had seen him leaving.

            Comeaux was charged with simple burglary of an inhabited

dwelling in violation of LA. REV. STAT. ANN. § 14:62.2 (1998)1 and

with being a multiple offender pursuant to LA. REV. STAT. ANN.

§ 15:529.1 (1998).       Against the advice of counsel, he waived his

right to a jury and proceeded to a bench trial.            At trial, Comeaux

took the stand and testified that he did not have permission to

enter the apartment complex.        He did not admit, however, to enter-

ing the burglarized apartment unit itself.

            The judge convicted Comeaux of simple burglary, noting

that Comeaux’s testimony helped prove one of the elements of the

crime: unauthorized entry. The owner of the burglarized apartment

had not testified, making the element more difficult to prove.               The

judge then sentenced Comeaux to forty years in prison.

            On direct appeal, Comeaux challenged both the trial

court’s finding that he had knowingly and intelligently waived his


      1
             Simple burglary is defined as “unauthorized entry of any inhabited
dwelling, house, apartment or other structure used in whole or in part as a home
or place of abode by a person or persons with an intent to commit a felony or any
theft therein . . . .”

                                       2
right to a jury trial and his adjudication as a multiple offender.

Both   grounds    were    denied.     Comeaux        then   sought    state   post-

conviction relief, contending that his trial counsel was ineffec-

tive for failing to move for an acquittal at the close of the

state’s   case    and    for   calling     him   to   testify   without       proper

preparation. The trial court denied the motion, finding that trial

counsel had diligently represented his client.                       The Louisiana

appellate courts affirmed.

            Comeaux then filed a federal application for habeas

corpus arguing, among other things, that his trial counsel was

ineffective for calling him to testify at trial.                 The magistrate

judge recommended denying all relief, but the district judge found

that the decision to call Comeaux as a witness was problematic;

it was the only means the court could determine by direct evidence

whether Comeaux had permission to be in the apartment, as the

victim    did    not    testify.     The     judge    sua   sponte     ordered    an

evidentiary hearing to determine if there was a legitimate tactical

reason for counsel to call him to the stand.                 After the hearing,

the district court granted Comeaux’s § 2254 application, finding

that whether or not counsel recommended or opposed Comeaux’s trial

testimony, he had not meaningfully dissuaded him from testifying or

properly prepared him.         As Comeaux’s testimony was the primary way

that the state proved unauthorized entry, the court found his

counsel to be ineffective.          The State appeals.



                                         3
                                  II.    DISCUSSION

              To prove ineffective assistance of counsel, a defendant

must   show    both     that    “counsel’s         representation        fell   below     an

objective     standard     of    reasonableness”            and    “that   there     is    a

reasonable     probability       that,    but       for    counsel’s     unprofessional

errors, the result of the proceeding would have been different.”

Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct.

2052 (1984).       Scrutiny of counsel’s performance must be “highly

deferential,” avoiding the “distorting effects of hindsight.”                           Id.

at 689, 104 S. Ct. at 2065.           Furthermore, “[b]ecause advocacy is an

art and not a science, and because the adversary system requires

deference to counsel’s informed decisions, strategic choices must

be   respected     in    these     circumstances           if     they   are    based     on

professional       judgment.”      Id.    at        681,    104    S.    Ct.    at   2061.

Additionally, “[i]f the facts adduced at trial point so over-

whelmingly to the defendant’s guilt that even the most competent

attorney would be unlikely to have obtained an acquittal, then the

defendant’s ineffective assistance claim must fail.”                            Jones v.

Jones, 163 F.3d 285, 304 (5th Cir. 1998) (quoting Green v. Lynaugh,

868 F.2d 176, 177 (5th Cir. 1989)).

              In   addition      to     the       demanding       Strickland    test,      a

petitioner must overcome the standard of review set out the Anti-

Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) for

mixed questions of law and fact.                  Under this standard, state court



                                              4
determinations receive deference unless they were “contrary to, or

involved      an   unreasonable   application     of,    clearly   established

Federal law, as determined by the Supreme Court of the United

States.”      28 U.S.C. § 2254(d)(1); see also Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495 (2000).2

              Comeaux cannot prove either prong of the Strickland test,

let   alone    the   unreasonableness      of   the   state   court   judgment.

Comeaux’s complaint is primarily that his attorney allowed him to

take the stand without properly advising him of his rights and the

potential consequences of his testimony. However, he had a lengthy

criminal history; his prior burglary convictions resulted in his

sentence as a fourth-felony habitual offender.                  See State v.

Comeaux, 774 So.2d 322 (La. App. 2000).           He had to be familiar with

the risks of testifying in court and incriminating himself.

              Moreover,   counsel   testified     that   he   advised   Comeaux

against taking the stand, and Comeaux disregarded his advice.3

Comeaux contests the advice he was given by his attorney, but the

state court’s credibility choice of counsel over the defendant is


      2
             In his brief, Comeaux claims he need not meet the strict AEDPA
standard because the state court did not make “findings.” The case he cites,
however, only establishes that AEDPA standards of review do not apply when the
state court decision is not “on the merits.” Henderson v. Cockrell, 333 F.3d 592
(5th Cir. 2003). Here, the state trial court clearly ruled on Comeaux’s precise
claim. This court reviews that decision of the state courts, regardless of the
precision of its findings. See, e.g., Singleton v. Johnson, 178 F.3d 381, 384
(5th Cir. 1999)(finding AEDPA applied when trial court ruling dealt with case on
the merits and state supreme court subsequently denied relief in summary fashion,
without independent findings).
      3
            Comeaux also disregarded counsel’s advice in electing a bench trial,
foregoing his right to a jury trial.

                                       5
not unreasonable, nor did Comeaux satisfy AEDPA’s standard for

disregarding state factual findings.       See 28 U.S.C. § 2254(e)(1).

           In any event, his testimony was entirely unnecessary for

guilt,   because   unauthorized   entry   can   be    proven   entirely   by

circumstantial evidence.     See, e.g., State v. Reed, 712 So.2d 572,

581-82 (La. App. 1998);     State v. Harper, 480 So.2d 483, 486 (La.

App. 1985); State v. Torres, 470 So.2d 319, 322-23 (La. App. 1985);

State v. Credit, 455 So.2d 1238, 1239 (La. App. 1984).              In this

case, the evidence of his guilt was substantial.                  There was

evidence of his presence in the ransacked apartment, he attempted

to flee, he possessed contraband from the apartment, and the police

arrived in response to a call of suspicious activity.               As the

district judge acknowledged when discussing the attorney’s failure

to request a motion for an acquittal, this is sufficient evidence

of the element of unauthorized entry.           See Comeaux v. Ieyoub,

2004 WL 1698676, at *2 (E.D. La. July 26, 2004).

           The district judge noted that trial counsel “urged him to

testify, unprepared, in his own behalf.”             Id. at *3.    However,

there was evidence that the attorney advised him not to testify.

Additionally, the district judge stated that “whether that cir-

cumstantial   evidence,     absent   Petitioner’s      self-incriminating

testimony, would be sufficient to convict is subject to debate.”

Id. (emphasis added).     These conclusions are not only inconsistent

with the state court findings, to which we must defer, but are



                                     6
insufficient to meet Strickland’s test, particularly given the high

deference that must be paid to the state court ruling under AEDPA.4

                              III.   CONCLUSION

            The district court failed to discuss AEDPA’s deferential

standards of review or explain why Comeaux’s evidence and arguments

overcame such heavy burdens. Because Comeaux’s claim fails under

AEDPA, the district court erred in granting Comeaux § 2254 relief.

            Its judgment is REVERSED.




      4
            We further note that the district court erred in granting an
evidentiary hearing. Under 28 U.S.C. § 2254(e)(2), an evidentiary hearing is
only appropriate when “(A) the claim relies on--(i) a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable; or (ii) a factual predicate that could not have been
previously discovered through the exercise of due diligence; and (B) the facts
underlying the claim would be sufficient to establish by clear and convincing
evidence that but for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.” Comeaux clearly cannot
meet these requirements.

                                       7
