                   UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                            No. 00-30893



                           RONNIE HONGO,

                                               Petitioner-Appellee,


                               VERSUS


                         BURL CAIN, Warden,
          Louisiana State Penitentiary, Angola, Louisiana,

                                               Respondent-Appellant.




            Appeal from the United States District Court
                For the Western District of Louisiana
                           (5:98-CV-2305)
                           June 18, 2001


Before STEWART and PARKER, Circuit Judges, and GOLDBERG, Judge.*

PER CURIAM:**

     Burl Cain, Warden of the Louisiana State Penitentiary in



     *
      Judge of the United States Court of International Trade,
sitting by designation.
     **
      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this opinion should not be published and is not precedent except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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Angola, Louisiana (referred to hereafter as the “State”), appeals

the district court’s grant of habeas corpus relief to Petitioner

Ronnie K. Hongo, Louisiana prisoner #98420.              We reverse.

                       FACTS AND PROCEDURAL HISTORY

     Hongo was convicted in a Louisiana state court of attempted

second-degree murder and sentenced to life imprisonment without

benefit of parole.        He was also convicted of possession of a

firearm by a felon, for which he received a five-year sentence.

     Hongo shot Karen Garner in the head with a pistol and blinded

her in one eye.    At trial, Garner testified that Hongo appeared at

her front door armed with the pistol and that he shot at her twice,

striking her once.      According to the testimony of Officer Martone,

Hongo admitted, shortly after his arrest, that he went to Garner’s

home to shoot Garner’s father and said that he did not mean to

shoot Garner.    At trial, Hongo testified that he went to the Garner

house with a 20 gauge shotgun in his pants, but no pistol.                 He

claimed he was talking to Garner, who had the pistol on a nearby

table, when they got into a playful wrestling match during which

the pistol was accidentally discharged.               Hongo denied making the

incriminating statements after his arrest.

     Hongo appealed, alleging that Officer Martone’s testimony

about Hongo’s post-arrest statement was improper and that his prior

convictions     were   not   grounds       for   an   enhancement.     Hongo’s

conviction was affirmed, but the matter was remanded to correct a



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sentencing error.     State v. Hongo, 625 So.2d 610, 620 (La. App. 3

Cir. 1993).

      Hongo   filed   a   state    habeas      petition,   alleging     that   his

sentence was unconstitutionally excessive and that his counsel was

ineffective for failing to object to the use of a 1977 felony

conviction and to a clearly erroneous jury instruction.                    Hongo

contended that the jury was erroneously instructed on the elements

of attempted second-degree murder.             The state judge had instructed

Hongo’s jury that second-degree murder required specific intent to

kill or inflict great bodily harm.                  Hongo argued that, under

Louisiana law, attempted murder requires that the state prove

specific intent to kill.          The state district court denied relief

without written reasons.      The state intermediate appellate court,

in a two-to-one split-panel decision, found that Hongo’s attorney

was ineffective, granted relief, and vacated Hongo’s conviction.

The   Louisiana   Supreme    Court       reversed    and   reinstated    Hongo’s

conviction.    State v. Hongo, 706 So.2d 419, 422 (La. 1997).                  The

Louisiana Supreme Court found that the state presented sufficient

evidence that Hongo had the intent to kill the victim but failed to

complete his plans and that there was no evidence presented to the

jury which would support a finding that Hongo had the intent to

inflict great bodily harm.         Id.       Therefore, the Louisiana Supreme

Court concluded that although Hongo’s counsel’s performance fell

below prevailing professional norms, his deficient performance did


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not prejudice the defendant.        Id.      Hongo filed a second state

habeas petition on an unrelated issue, which was denied.

     Hongo then filed this federal habeas petition, alleging that

the erroneous jury instruction concerning intent to inflict great

bodily harm mandated a reversal without a harmless error analysis

and that trial counsel was ineffective for failing to object to the

erroneous jury instruction on attempted second-degree murder and

attempted manslaughter.      The magistrate judge, in a report and

recommendation, noted that the state conceded that the trial court

improperly    instructed   the   jury   on   the   standard   for   finding

attempted second-degree murder and that the error rendered the

instruction   constitutionally    deficient.       The   magistrate   judge

employed harmless error analysis and found that, despite the error,

there was no reasonable probability that the jury would have

returned a different verdict had the instruction been consistent

with the law.     Thus, the magistrate judge concluded that Hongo

failed to establish prejudice arising from counsel’s failure to

object to the erroneous jury instruction.          Hongo filed objections

to the magistrate judge’s report and recommendation.

     The district court conducted a de novo review, and found that

the erroneous jury instruction, combined with erroneous statements

of law to the jury by both defense counsel and the prosecutor had

a substantial effect or influence on the verdict such that there

was more than a reasonable possibility that the result would have


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been different had the jury been properly instructed. The district

court found   that   defense   counsel’s    failure   to   object   to   the

erroneous instruction was deficient performance, and that defense

counsel’s error resulted in prejudice given the frequency of the

erroneous statement and the Fifth Circuit’s holding in Gray v.

Lynn, 6 F.3d 265 (5th Cir. 1993).       The district court conditionally

granted Hongo’s writ of habeas corpus, vacated his conviction and

ordered that he be released from custody unless the state, within

180 days, commenced its prosecution.

     The State timely appealed. No certificate of appealability is

required because a representative of the State is appealing the

district court’s grant of habeas relief.           See FED. R. APP. P.

22(b)(3).

                               DISCUSSION

A. Standard of review

     “In a habeas corpus appeal, we review the district court’s

findings of fact for clear error and review its conclusions of law

de novo, applying the same standard of review to the state court’s

decision as the district court.”        Thompson v. Cain, 161 F.3d 802,

805 (5th Cir. 1998).

     A district court shall not grant Federal habeas relief for

     any claim that was adjudicated on the merits in State
     court proceedings unless the adjudication of the claim –

     (1) resulted in a decision that was contrary to, or
     involved an unreasonable application of, clearly
     established Federal law, as determined by the Supreme

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      Court of the United States; or

      (2) resulted in a decision that was based on an
      unreasonable determination of the facts in light of the
      evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

      In reviewing the state court’s decisions regarding questions

of law under the “unreasonable application” clause, a federal

habeas court may not issue a writ simply because that court

concludes, in its independent judgment, that the relevant state-

court decision applied clearly established federal law erroneously

or incorrectly.        Williams v. Taylor, 529 U.S. 362, ___, 120 S. Ct.

1495,     1522    (2000).    Rather,     that      application        must   also   be

unreasonable. Id. A federal habeas court making the “unreasonable

application” inquiry must ask whether the state court’s application

of clearly established federal law was objectively1 reasonable.

Id.     Mixed questions of fact and law are likewise reviewed for

unreasonable application of clearly established federal law.                        See

Lockhart v. Johnson, 104 F.3d 54, 56-57 (5th Cir. 1997).

      A   state    court’s   factual     determinations         are    reviewed     to

determine whether the state court’s adjudication of the claim

resulted     in    a   decision   that       was   based   on   an     unreasonable

determination of the facts in light of the evidence presented in



      1
      Williams rejected the Fifth Circuit’s apparently subjective
“reasonable jurist” standard set out in Drinkard v. Johnson, 97
F.3d 751, 769 (5th Cir. 1996). Beazley v. Johnson, ___ F.3d ___,
2001 WL 118393 (5th Cir. 2001).

                                         6
the state court proceeding.        See id.       A determination of a factual

issue made by a state court shall be presumed to be correct, and

the applicant has the burden of rebutting the presumption of

correctness by clear and convincing evidence.               See § 2254(e)(1).

     To obtain relief based upon ineffective assistance of counsel,

a defendant must demonstrate both that his counsel’s performance

was deficient and that the deficient performance prejudiced the

defense.     Strickland v. Washington, 466 U.S. 668, 687 (1984).

Judicial     scrutiny   of    counsel’s     performance       must     be   highly

deferential, and courts must indulge in a strong presumption that

counsel’s    conduct    falls   within     the     wide   range   of   reasonable

professional conduct.        Id. at 689.    The defendant bears the burden

of proving both deficient performance and prejudice resulting from

error.   Westley v. Johnson, 83 F.3d 614, 719 (5th Cir. 1996).                  To

establish prejudice, the defendant “must show that there is a

reasonable    probability     that,   but    for    counsel’s     unprofessional

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

Strickland, 466 U.S. at 694.               A failure to establish either

deficient performance or prejudice defeats the claim.                  Id. at 697.

B. Was Hongo prejudiced by counsel and district court errors?

     The State concedes, as it has throughout Hongo’s habeas

proceedings, that the trial court erroneously instructed the jury

on the elements of attempted second-degree murder. The trial court

instructed the jury that in order to be convicted of second-degree


                                       7
murder the jury had to find that the defendant had the specific

intent to kill or inflict great bodily harm.    Under Louisiana law,

Hongo had to have the specific intent to kill; the intent to cause

great bodily harm is not an element attempted second-degree murder.

State v. Butler, 322 So.2d 189 (La. 1975).    Neither does the State

challenge on appeal the district court’s holding that Hongo’s

counsel’s failure to object to the erroneous instruction was

deficient performance.   As the Louisiana Supreme Court noted in

Hongo’s State habeas proceeding, “the first prong [of Strickland]

is easily met here, as the rule of Butler is well-established with

over twenty years duration and a reasonably competent attorney

would know of it and properly object when presented with the

instant erroneous instruction.”       Hongo, 706 So.2d at 422.   The

State’s appeal focuses instead on whether these errors prejudiced

Hongo.

     In order to establish prejudice, Hongo must demonstrate that

there is a reasonable probability that the jury would have had a

reasonable doubt respecting Hongo’s guilt if the phrase “or inflict

great bodily harm” had been left out of the jury charge.    Gray, 6

F.3d at 269-70.   The district court conducted a de novo review of

the record and found that the erroneous jury instruction, combined

with erroneous statements of the law to the jury made by both

defense counsel and the prosecutor had a substantial effect on the

verdict, thus concluding that the Louisiana Supreme Court’s opinion


                                  8
denying Hongo relief incorrectly applied federal law. However, the

district court erred when it failed to inquire whether the state

court application of federal law was unreasonable.                 See Williams,

120 S. Ct. at 1522.

     There is no dispute that the Louisiana Supreme Court applied

the correct law in examining the prejudice prong of the Strickland

ineffective assistance of counsel test.               The only question is

whether   it    correctly    applied   that   law     to   the    facts.     Upon

examination of the record, the Louisiana Supreme Court found that

the jury in this case was presented with a binary choice between

the State’s and the defendant’s version of what occurred.                     The

defendant testified that he and the victim were struggling over the

gun when it accidentally discharged.          Hongo, 706 So.2d at 442. The

State presented evidence that the defendant entered the house with

the intent to kill the victim but failed to complete his plan.                Id.

There was no argument or evidence presented to the jury which would

support a finding that Hongo had the intent to only inflict great

bodily harm.     Id.     “Indeed, given only the two versions that were

presented, no reasonable jury could have concluded that defendant

had the intent to only inflict great bodily harm.”                Id.   Thus, the

Louisiana      Supreme    Court   concluded    that    the       erroneous   jury

instruction did not prejudice the defendant or affect the verdict.

Id. The Louisiana Supreme Court’s characterization of the evidence

in the record is accurate and its application of the law to that


                                       9
evidence is not unreasonable.

       The Fifth Circuit decision in Gray v. Lynn, 6 F.3d 265 (5th

Cir. 1993), on which the district court grounded its decision, is

inapposite.       In Gray, as in the case at bar, trial counsel failed

to object to a jury instruction on attempted murder that allowed

the jury to convict the defendant if they found that he intended

only to inflict great bodily harm on his victim.              Id. at 269.    This

court concluded that a jury could have interpreted the evidence to

prove that Gray intended to harm, but not to kill, his victim based

on    the   fact    that    Gray    was    presented   with   several      “golden

opportunities” to kill his victim, but did not take advantage of

them.   Id. at 270.        Indeed, Gray fired three shots at close range,

none of which hit the victim.             Id.   Therefore, we held that Gray

met his burden of establishing that he had been prejudiced by his

counsel’s error.      Id. at 271.     Here, Hongo fired two shots at close

range, hitting his victim in the head.             Hongo’s jury did not have

the same missed “golden opportunities” to consider that we found

persuasive in Gray’s case.                More importantly, Gray filed his

federal habeas application in 1987, id. at 267, so the deference we

owe   to    the    State    court   determination      in   this   suit,    per   §

2254(e)(1), as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), was not an element of the analysis

in Gray.    See Lindh v. Murphy, 521 U.S. 320 (1997)(holding that the

provisions of the AEDPA do not apply to cases that were filed


                                          10
before the April 1996 effective date of that act.)           Further, the

state   court    in   Gray   never   ruled   on   the   merits   of   Gray’s

contentions, so there was no state court decision in that case to

which we could have deferred.        Gray, 6 F.3d at 267.

     We therefore conclude that the district court in this case

erred in failing to afford the proper deference to the Louisiana

Supreme Court’s factual determinations and legal conclusion and in

granting Hongo’s habeas application.

     Based on the foregoing we reverse the district court’s grant

of habeas relief to Hongo.

     REVERSED.




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