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

                                                FILED
                                                             December 22, 2009
                               No. 08-40090
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

KENNETH SIE LINICOMN

                                           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 Eastern District of Texas
                           USDC No. 6:06-CV-440




Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
      Petitioner-appellant Kenneth Sie Linicomn (“Linicomn”), Texas prisoner
#1283439, was found guilty of possession of a controlled substance and sentenced
as a repeat offender to 20 years in prison. He filed a 28 U.S.C. § 2254 petition
challenging this conviction, arguing that trial counsel rendered ineffective




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-40090

assistance by not raising a hearsay objection to the State’s testifying expert or
lab report evidence.
                                 DISCUSSION
      Linicomn was convicted of possessing crack-cocaine. A lab report showed
that the substance in Linicomn’s possession was cocaine. During trial, the
original lab technician who ran the test, Ruben Rendon (“Rendon”), was
unavailable.    Instead, his supervising technician, Lynette Jonas-Feuquay
(“Jones-Feuquay”), testified to the lab report’s results. The lab report was
entered into evidence without objection.
      Following exhaustion of his state remedies, Linicomn petitioned for federal
habeas relief for denial of a constitutional right. This court granted a certificate
of appealability on three grounds:
      1.      Whether admission of the lab report without the presence of the
              person who prepared it violated his Sixth Amendment rights?
      2.      Whether Texas’s contemporaneous objection rule bars Linicomn
              from raising a Confrontation Clause claim?
      3.      Whether Linicomn’s counsel provided inadequate assistance by
              failing to raise a hearsay objection to both Jonas-Feuquay’s
              testimony and the introduction of Rendon’s lab report?
      In his brief, Linicomn concedes that Texas’s contemporaneous objection
rule procedurally bars him from raising a Sixth Amendment claim. Therefore,
the only remaining issue is whether his counsel rendered inadequate assistance
by failing to raise hearsay objections to Jonas-Feuquay’s testimony and Rendon’s
lab report.
      Ineffective assistance of counsel is a mixed question of law and fact.
Strickland v. Washington, 466 U.S. 668, 698 (1984).            A petitioner must
demonstrate two things:      (1) that counsel’s performance was deficient, and
(2) that the deficient performance prejudiced his defense. Strickland, 466 U.S.
at 687. Courts must “indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,” and a defendant


                                         2
                                   No. 08-40090

must overcome the presumption that the “challenged action might be considered
sound strategy.” Id. To demonstrate prejudice, petitioner must show that
“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id.
      The Texas Court of Criminal Appeals has denied Linicomn’s claim;
consequently, Linicomn cannot obtain federal habeas corpus relief unless he can
show that the state court’s adjudication of that claim resulted in a decision that
was contrary to established federal law. See Riddle v. Cockrell, 288 F.3d 713,
716 (5th Cir. 2002), cert. denied 537 U.S. 953; 28 U.S.C. § 2254(d)(1). However,
even under de novo review, Linicomn’s petition fails.
      First, Linicomn fails to rebut the presumption that his attorney’s decision
not to raise hearsay objections could be part of a sound strategy. The objection
to Jonas-Feuquay’s testimony would likely have failed. Jonas-Feuquay is an
expert in her own right and offered her own expert opinion. The Texas Court of
Criminal Appeals has held that the testimony of an expert chemist concerning
the test results obtained by another chemist is not hearsay. See Martinez v.
State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000) (citing Aguilar v. State, 887
S.W.2d 27, 29-30 (Tex. Crim. App. 1994)). Indeed, in a prior trial that resulted
in mistrial, Linicomn’s attorney unsuccessfully raised a hearsay objection.
Similarly, while the lab report may have been hearsay, it could have survived
a hearsay objection if the State entered it for the limited purpose of supporting
Jonas-Feuqay’s testimony.        Aguilar, 887 S.W.2d at 30.        Further, even if
Linicomn’s attorney could have successfully raised hearsay objections, trial
attorneys often waive objections to scientific evidence as such objections may
antagonize juries and judges. Finally, even if Linicomn’s attorney successfully
objected to Jonas-Feuqay’s testimony and the lab report, the State could still call
Rendon to testify. Thus, the attorney would have objected to no positive effect:
both the testimony and lab report would still be admitted and the judge and jury



                                          3
                                 No. 08-40090

might believe Linicomn’s attorney to be obstinate. Accordingly, Linicomn has
not shown that his attorney’s actions were not part of a larger strategy.
      Second, Linicomn fails to demonstrate prejudice against him. In order to
demonstrate prejudice, Linicomn must show that the State would be unable to
introduce the scientific evidence that he possessed cocaine. He has made no
such showing. At most, Linicomn can demonstrate that the lab report was
hearsay. Nevertheless, the State could still have entered the lab report into
evidence for the limited purpose of supporting Jonas-Feuqay’s testimony.
Aguiler, 887 S.W.2d at 30. Further, the lab report could also be introduced
without limitation, because the State could call Rendon to testify. As such,
Linicomn has not shown that, absent his attorney’s supposed error, the cocaine
evidence would not be introduced and the jury might have reached a different
outcome.
                              CONCLUSION
      As Linicomn has not shown either that his attorney’s decision constituted
unreasonable professional assistance or that his attorney’s decision prejudiced
the outcome of the trial, the judgment of the district court denying Linicomn
habeas relief is AFFIRMED.




                                       4
