     Case: 16-30270      Document: 00514412222         Page: 1    Date Filed: 04/03/2018




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


                                    No. 16-30270
                                                                               FILED
                                                                            April 3, 2018
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
BRANDON BRUE,

                                                 Petitioner-Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:13-CV-60


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Brandon Brue, Louisiana prisoner # 507020, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 petition challenging his conviction for second-
degree murder, attempted second-degree murder, and possession of a firearm
by a convicted felon, for which he is serving a cumulative life sentence. The
district court granted a certificate of appealability (COA) as to one issue,
namely whether the admission of the handwritten statement purportedly
made by Yarnell Brue may be seen to have been error of such magnitude as to

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30270

result in grave doubt that the error was not harmless in light of the totality of
the evidence at trial. A judge of this court subsequently granted in part Brue’s
motion to expand the COA to include the issue of whether the district court
erred in rejecting Brue’s claim that he received ineffective assistance of counsel
where trial counsel failed to investigate possible alibi witnesses and present
an alibi defense.
      With respect to the first issue, we review the district court’s findings of
fact for clear error and its conclusions of law de novo. Martinez v. Johnson,
255 F.3d 229, 237 (5th Cir. 2001). While state law evidentiary errors may not,
standing alone, be redressed under § 2254, whether application of the state
evidentiary rule violated a constitutional right is reviewable. See Jones v.
Cain, 600 F.3d 527, 536 (5th Cir. 2010). A state evidentiary ruling implicates
due process and provides a basis for habeas relief only where the ruling was
“of such a magnitude or so egregious that [it] render[ed] the trial
fundamentally unfair.” Gonzales v. Thaler, 643 F.3d 425, 430 (5th Cir. 2011)
(internal quotation marks and footnote omitted). Habeas relief must also be
denied if the constitutional error was harmless. Jones, 600 F.3d at 537 n.8.
      On direct appeal, the state appellate court concluded that Yarnell’s
statement was inadmissible but that the error was harmless in light of the
substantial evidence of Brue’s guilt presented at trial. State v. Brue, No. 2009
KA 2281, 2010 WL 1838383, 11-13 (La. Ct. App. May 7, 2010). While Brue
suggests that the admission of the statement was a constitutional error which
was not harmless because there was minimal evidence connecting him to the
crime, there was substantial evidence presented at trial of his guilt. When
interviewed by law enforcement, Christopher Gremillion stated that Brue, an
individual he had known for five years and saw daily, was the individual who
shot both Gremillion and Yarnell. Id. at 4. Even without Yarnell’s written



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                                  No. 16-30270

statement, there was testimony from law enforcement about a complaint
Yarnell made about Brue to police one week before her death, as well as
testimony about two prior incidents in which Brue shot at or threatened to
shoot other individuals. Id. at 3-4. Brue fled after Yarnell and Gremillion’s
shooting and was not located until several months later. Id. at 4. The state
appellate court was “convinced that the evidence presented negated any
reasonable probability of misidentification,” and that “any rational trier of fact
could have found that the State proved beyond a reasonable doubt, and to the
exclusion of every reasonable hypothesis of innocence,” the elements of the
charged offenses. Id. at 5. Given the highly deferential standard of review,
§ 2254(d)(1), (2); Woodford v. Visciotti, 537 U.S. 19, 24 (2002), Brue has not
demonstrated his entitlement to habeas relief.
      Brue’s second issue was procedurally defaulted in the state courts
because he failed to raise it on direct appeal. See Nobles v. Johnson, 127 F.3d
409, 420 (5th Cir. 1997); LA. CODE CRIM. P. art. 930.4(C).          However, “a
procedural default will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in the [State’s] initial-
review collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” Martinez v. Ryan, 566 U.S. 1, 17 (2012). As Brue
was not represented by counsel during the state habeas proceedings, the
question is whether he has a substantial claim of ineffective assistance as to
his trial counsel. See Coleman v. Goodwin, 833 F.3d 537, 543 (5th Cir. 2016).
To prevail, he must show (1) that 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). Failure to establish either prong defeats the claim. Id. at 697.




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      Brue has not demonstrated that he has a substantial claim for ineffective
assistance of counsel. Even if counsel’s failure to investigate and call these
alibi witnesses was error, Brue has not demonstrated prejudice. As explained
above, there was substantial evidence of Brue’s guilt presented at trial. See
Brue, 2010 WL 1838383, 3-4. Given this evidence of guilt, coupled with the
somewhat questionable credibility of testimony from three alibi witnesses who
were also Brue’s cousins, he has not made the requisite showing of prejudice.
See Strickland, 466 U.S. at 694.
      AFFIRMED.




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