     Case: 10-51062     Document: 00511829488         Page: 1     Date Filed: 04/20/2012




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

                                                                            FILED
                                                                           April 20, 2012
                                     No. 10-51062
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

EDDIE LAVAN KEARSE,

                                                  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 Western District of Texas
                             USDC No. 5:10-CV-105


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Eddie Lavan Kearse, Texas prisoner #1376414, appeals the district court’s
denial of his 28 U.S.C. § 2254 petition, which challenged his 2006 murder
conviction. The district court granted Kearse a certificate of appealability to
appeal one issue, whether Kearse was denied effective assistance of counsel as
a result of counsel’s failure to object to certain out-of-court statements on
Confrontation Clause grounds.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-51062    Document: 00511829488      Page: 2   Date Filed: 04/20/2012

                                  No. 10-51062

      We review this issue de novo. See Richards v. Quarterman, 566 F.3d 553,
561 (5th Cir. 2009).      Because Kearse’s ineffective assistance claim was
adjudicated on the merits by the state court, the district court was prohibited
from granting habeas relief unless the state court’s decision was (1) contrary to
or an unreasonable application of clearly established federal law as determined
by the Supreme Court, or (2) was based on an unreasonable assessment of the
facts in light of the evidence in the state proceedings. See § 2254(d)(1) & (2). It
was Kearse’s burden to show that “there was no reasonable basis for the state
court to deny relief.” Harrington v. Richter, 131 S. Ct. 770, 784 (2011). To be
entitled to relief from the state court on his claim that he was denied effective
assistance of counsel, Kearse had to show both deficient performance by counsel
and resulting prejudice. Id. at 787; see Strickland v. Washington, 466 U.S. 668,
687 (1984). A failure to establish either prong defeats the claim. Strickland, 466
U.S. at 697. To show prejudice, Kearse was required to show a reasonable
probability that, but for counsel’s deficiency, the result of the proceeding would
have been different, and that counsel’s errors were so serious that they rendered
the proceedings unfair or the result unreliable. Richter, 131 S. Ct. at 787-88.
      The gist of Kearse’s argument is that, but for counsel’s allegedly deficient
performance, there was no evidence that he intended to kill the victim or cause
him serious bodily injury. Kearse’s intent could be inferred from his use of a
deadly weapon in a deadly manner. See Adanandus v. State, 866 S.W.2d 210,
215 (Tex. Crim. App. 1993). The evidence shows that Kearse began to retreat
when he thought the victim was reaching for a gun, but instead of retreating,
Kearse armed himself, turned, and shot the victim three times. Moreover,
Kearse had not shown that the alleged error had any impact on the jury’s
rejection of his claim of self-defense because he had a duty and an opportunity
to retreat but, instead armed himself, turned, and shot the victim three times.
See TEX. PENAL CODE ANN. § 9.32(a)(2) (West 2003).



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                                  No. 10-51062

      Even if counsel had objected to the out-of-court statements on
Confrontation Clause grounds and the trial court had sustained the objection
and excluded Melanie’s statements, the evidence of Kearse’s guilt was
overwhelming. Kearse failed to show a reasonable probability that, but for
counsel’s allegedly deficient performance, the result of the proceeding would
have been different, and that counsel’s errors were so serious that they rendered
the proceedings unfair or the result unreliable. See Richter, 131 S. Ct. at 787-88.
Thus, Kearse not only failed to show that counsel’s allegedly deficient
performance prejudiced him, but he also failed to show that the state habeas
court unreasonably applied Strickland to his ineffective assistance of counsel
claim. Accordingly, the district court’s judgment is AFFIRMED.




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