     Case: 12-31009      Document: 00512574237         Page: 1    Date Filed: 03/26/2014




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

                                                                                     FILED
                                    No. 12-31009                               March 26, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
REGAN GATTI,

                                                 Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:09-CV-962


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Regan Gatti, Louisiana prisoner # 375608, is serving sentences of
imprisonment following his jury trial convictions of two counts of attempted
second degree murder and one count each of aggravated flight from an officer,
attempted aggravated burglary, aggravated burglary, attempted second
degree kidnaping, and unauthorized entry of an inhabited dwelling. He filed
a 28 U.S.C. § 2254 petition to attack these convictions, raising claims that his



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-31009

trial counsel was ineffective and that the trial court violated his right to a fair
trial by denying his for-cause challenges to six prospective jurors. The district
court determined that the § 2254 petition was untimely and that Gatti was not
entitled to equitable tolling. We granted a certificate of appealability on the
equitable tolling issue and determined that Gatti’s claim of ineffective
assistance of trial counsel, but not his juror claim, stated a valid claim of a
constitutional deprivation. See Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012).
      Gatti argues that equitable tolling is warranted based on a 45-day delay
in receipt of notice of the Louisiana Supreme Court’s denial of his writ
application and his lack of access to his legal papers for approximately seven
months. He asserts that he acted with due diligence by requesting his legal
materials, obtaining a copy of the trial record, and perusing the lengthy trial
record to identify grounds for relief and prepare his pleadings.
      We may affirm the denial of habeas relief on any ground supported by
the record. See, e.g., Amos v. Thornton, 646 F.3d 199, 203 n.4 (5th Cir. 2011)
(“In light of our determination that Amos is not entitled to relief on his speedy-
trial claim . . . the district court’s error in dismissing that claim as procedurally
barred was harmless, and remand is unnecessary.” (internal citations
omitted)); Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000); Ortez v. Dretke,
108 F. App’x 188, 190–91 (5th Cir. 2004). As discussed below, given that the
ineffective assistance claim set forth in Gatti’s district court filings does not
entitle him to § 2254 relief, we need not decide whether the district court erred
in denying equitable tolling.
      In his § 2254 petition Gatti asserted that his trial counsel was ineffective
for (1) declining the trial court’s offer to admonish the jury when prejudicial
testimony was improperly elicited, (2) stipulating that Gatti had been involved
in the armored car robbery in Shreveport, (3) stipulating that Gatti did not



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                                 No. 12-31009

have the owners’ permission to enter the McAlister residence, (4) admitting at
closing argument that Gatti was guilty of aggravated flight from an officer, (5)
failing to subject the prosecution’s case to meaningful adversarial testing on
the charges of attempted murder, and (6) denying Gatti the right to testify in
his own defense.
      Under the Antiterrorism and Effective Death Penalty Act, the state
court’s adjudication of Gatti’s ineffective assistance claim is entitled to
deference. See Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A § 2254
application shall not be granted unless the state court’s decision “was contrary
to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States” or “resulted in a
decision that was based on an unreasonable determination of facts in light of
the evidence presented in the State court proceeding.” § 2254(d).
      To prevail on a claim of ineffective assistance of counsel, a prisoner must
show: (1) that his counsel’s performance was deficient in that it fell below an
objective standard of reasonableness; and (2) that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689–94 (1984).
A failure to make either showing defeats the claim. Id. at 697. The court
indulges in a “strong presumption” that counsel’s representation fell “within
the wide range of reasonable professional assistance,” or that, “under the
circumstances, the challenged action might be considered sound trial strategy.”
Id. at 689 (internal quotation marks and citation omitted).
      Our review establishes that Gatti cannot overcome the presumption that
counsel made a reasonable strategic decision to decline the admonition. Indeed,
trial counsel explained to the Court: “I’m not going to request an admonition.
That just calls their attention to it more.” Moreover, Gatti cannot overcome the
presumption that counsel likewise reasonably decided not to call Gatti, a



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                                  No. 12-31009

decision in which Gatti acquiesced. See Strickland, 466 U.S. at 689. Further,
in view of the overwhelming evidence of Gatti’s guilt, see State v. Gatti, 914 So.
2d 74, 81–84 (La. Ct. App. 2005) (detailing the evidence against Gatti), we are
satisfied that Gatti cannot make a showing of Strickland prejudice based on
any of counsel’s alleged errors or omissions. See Strickland, 466 U.S. at 694.
As the Louisiana Court of Appeals summarized:
      [T]he applicant would have been convicted of all of the offenses with
      which he was charged, because of the amount and strength of the
      evidence presented against him, regardless of what his lawyer may have
      done. While a trial conducted differently might have been longer, the
      result would have been the same—the conviction and incarceration of
      this defendant.
State v. Gatti, No. 43667-KH, (La. Ct. App. May, 13, 2008).
      AFFIRMED.




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