     Case: 13-40552      Document: 00512806782         Page: 1    Date Filed: 10/17/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-40552
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 17, 2014
TONY STRICKLAND,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 9:10-CV-189


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Tony Strickland, Texas inmate # 1364993, appeals from the district
court’s denial of his 28 U.S.C. § 2254 petition, challenging his conviction for
aggravated robbery.          This court granted Strickland a certificate of
appealability (COA) on the issue of whether his trial attorney was ineffective
for failing to object to Terry Moore’s assertion of his Fifth Amendment right



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40552    Document: 00512806782     Page: 2   Date Filed: 10/17/2014


                                 No. 13-40552

not to testify. Strickland’s motion to strike the respondent’s brief as untimely
is DENIED.
      On appeal, Strickland argues that his counsel’s failure to object to
Moore’s assertion of his Fifth Amendment right not to testify was unreasonable
because counsel knew that Moore possessed exculpatory evidence.              He
contends that the state habeas court’s reliance on counsel’s affidavit stating
that his actions were trial strategy was an unreasonable determination of the
facts and that counsel’s deficient performance prejudiced him because it
precluded him from eliciting at least some exculpatory evidence and deprived
him of his Sixth Amendment right to compulsory process. We do not address
Strickland’s claim that counsel was ineffective for failing to request an adverse
inference instruction because that issue is outside the scope of the COA
granted to Strickland. See Simmons v. Epps, 654 F.3d 526, 535 (5th Cir. 2011).
      We review the district court’s findings of fact for clear error and its
conclusions of law de novo, applying the same standard of review that the
district court applied to the state court decision. Roberts v. Thaler, 681 F.3d
597, 603-04 (5th Cir. 2012). Strickland is not entitled to habeas relief on a
claim that was adjudicated on the merits by a state court unless the state
court’s decision (1) was contrary to or an unreasonable application of clearly
established federal law as determined by the Supreme Court or (2) “was based
on an unreasonable determination of the facts in light of the evidence in the
state court proceeding.”    28 U.S.C. § 2254(d)(1) & (2).     The state court’s
determination of a factual issue must be presumed correct, unless the
petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
      The state court’s denial of relief on a claim that counsel rendered
ineffective assistance is measured against the standard set forth in Strickland



                                       2
    Case: 13-40552     Document: 00512806782      Page: 3    Date Filed: 10/17/2014


                                  No. 13-40552

v. Washington, 466 U.S. 668, 687 (1984), which requires that Strickland show
both deficient performance by counsel and resulting prejudice. Williams v.
Thaler, 684 F.3d 597, 604 (5th Cir. 2012). “Surmounting Strickland’s high bar
is never an easy task.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011)
(internal quotation marks and citation omitted). “Establishing that a state
court’s application of Strickland was unreasonable under § 2254(d) is all the
more difficult. The standards created by Strickland and § 2254(d) are both
highly deferential, and when the two apply in tandem, review is doubly so.”
Id. (internal quotation marks and citations omitted). “When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.
      A witness’s Fifth Amendment privilege exists when the witness has
“reasonable cause to apprehend danger from a direct answer.” Hoffman v.
United States, 341 U.S. 479, 486 (1951). “It is for the court to say whether his
silence is justified . . . and to require him to answer if it clearly appears to the
court that he is mistaken.” Id. (internal quotation marks and citation omitted).
“To sustain the privilege, it need only be evident from the implications of the
question, in the setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered might be dangerous
because injurious disclosure could result.”        Id. at 486-87.     Thus, when
appraising the invocation of the Fifth Amendment privilege, the trial judge
“must be governed as much by his personal perception of the peculiarities of
the case as by the facts actually in evidence.” Id. at 487 (internal quotation
marks and citation omitted).
      In this case, the trial judge was already familiar with Moore as a witness
as Moore had testified at Strickland’s first trial. Had Moore testified in favor



                                         3
    Case: 13-40552     Document: 00512806782     Page: 4      Date Filed: 10/17/2014


                                  No. 13-40552

of Strickland in a manner that rendered his testimony at Strickland’s first trial
false, Moore could have been prosecuted for perjury. See Butterfield v. State,
992 S.W.2d 448, 459 (Tex. Crim. App. 1999); TEX. PENAL CODE ANN. § 37.02.
Although the questions asked of Moore did not per se risk perjury, they served
to demonstrate that Moore intended to invoke his Fifth Amendment privilege.
Moreover, the prospect of being prosecuted for perjury is a legitimate basis for
asserting the Fifth Amendment privilege. United States v. Balsys, 524 U.S.
666, 713 (1998). Thus, counsel arguably had no reason to object to Moore’s
invocation of the Fifth Amendment. Further, insofar as Moore was a witness
for the prosecution, his invocation of the Fifth Amendment during the State’s
presentation of evidence ostensibly inured to Strickland’s benefit. Counsel
attested that for this reason he strategized not to object.
      Given the context in which Moore invoked his Fifth Amendment
privilege, counsel’s attestations as to trial strategy, and the doubly deferential
standard of review that we must apply, we conclude that Strickland has not
met his burden of showing that the state habeas court unreasonably
determined the facts surrounding his claim or that it unreasonably applied
Strickland when it denied his claim that counsel was ineffective. See Richter,
131 S. Ct. at 786-88; Knowles v. Mirzayance, 556 U.S. 111, 123 (2009);
Strickland, 466 U.S. at 687-91, 697; Hoffman, 341 U.S. at 486. Accordingly,
we AFFIRM the district court’s denial of habeas relief.




                                        4
