     Case: 12-10105       Document: 00512211158         Page: 1     Date Filed: 04/17/2013




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

                                                                            FILED
                                                                           April 17, 2013
                                     No. 12-10105
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JUAN JIMENEZ,

                                                  Petitioner-Appellant

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:11-CV-697


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Juan Jimenez, Texas prisoner #1393676, appeals the district court’s
dismissal of his habeas petition challenging his conviction and 65-year prison
sentence for aggravated robbery. See 28 U.S.C. § 2254. We AFFIRM.
       The Section 2254 petition asserted that trial counsel was ineffective for
failing to convey to Jimenez the State’s plea offer of 25 years of imprisonment.
The state habeas court, relying on an affidavit of trial counsel denying any


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10105

knowledge of a 25-year offer, concluded that Jimenez failed to prove that such
an offer was ever made. The district court, however, considered an affidavit of
trial counsel, never introduced in state court, in which he stated that there had
indeed been a 25-year offer that was conveyed to and rejected by Jimenez. We
granted Jimenez a certificate of appealability on the following issues: whether
it was proper for the district court to consider the affidavit of Jimenez’s counsel
that was not presented to the state court; whether the district court was
required under Section 2254(d)(2) to defer to the state court’s ruling as one not
based on an unreasonable determination of the facts in light of the evidence
presented in state court, even though the state court’s decision was based on
affidavit testimony later recanted in federal court; and whether the district court
erred by finding that Jimenez did not suffer prejudice.
      For a claim adjudicated on the merits in a state habeas proceeding,
“evidence later introduced in federal court is irrelevant.” Cullen v. Pinholster,
131 S. Ct. 1388, 1400 (2011) (concerning review under Section 2254(d)(1)). “The
same rule necessarily applies to a federal court’s review of purely factual
determinations under § 2254(d)(2).” Blue v. Thaler, 665 F.3d 647, 656 (5th Cir.
2011), cert. denied, 133 S. Ct. 105 (2012). Pinholster suggests that an exception
may lie, however, if a habeas petitioner presents “a new claim” turning on
evidence never presented in the state court, such as “new evidence of withheld
exculpatory witness statements.” 131 S. Ct. at 1401 n.10; see also id. at 1417-18
(Sotomayor, J., dissenting); cf. Blue, 665 F.3d at 657.
      Jimenez argues that counsel’s federal affidavit did not modify his state
court claim but merely supplemented it and that the claim was therefore not a
new and unexhausted claim. He partly relies on Dowthitt v. Johnson, 230 F.3d
733 (5th Cir. 2000), and Lewis v. Quarterman, 541 F.3d 280 (5th Cir. 2008).
These decisions are no longer good law on the points he raises in light of
Pinholster, 131 S. Ct. 1388. The question of whether to consider evidence never
presented to the state court is not analyzed as an exhaustion issue under

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                                  No. 12-10105

Section 2254(b). Lewis v. Thaler, 701 F.3d 783, 790-97 (5th Cir. 2012). Jimenez
has thus failed to cite any authority supporting his contention that counsel’s
federal affidavit could be considered when deciding whether to defer to the state
court’s resolution of his claim of constitutional error.
      Additionally, Jimenez fails to show that, based on the record before the
state habeas court, “no fairminded jurist could agree with” that court’s
conclusion that counsel did not render deficient services. See Bobby v. Dixon,
132 S. Ct. 26, 27 (2011). Indeed, Jimenez does not even attempt the effort,
electing instead to pretermit the question of deficient performance.
      The district court made no determination concerning the propriety of the
state habeas court’s conclusion that counsel had not rendered deficient
performance; the district court merely assumed deficient performance for the
purpose of the prejudice analysis.       Whether the state court erred in its
conclusion of no deficiency is a question that has been abandoned on appeal as
a result of Jimenez’s decision not to brief the performance issue. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Jimenez’s discussion of the
prejudice issue is therefore irrelevant. See Hill v. Lockhart, 474 U.S. 52, 58
(1985). His motion for the appointment of counsel is DENIED, and the judgment
of the district court is AFFIRMED.




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