                      REVISED AUGUST 22, 2011

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

                                                                    FILED
                                  No. 09-10938                    August 3, 2011

                                                                  Lyle W. Cayce
                                                                       Clerk
ROBERT ALLEN RABE,

                                            Petitioner-Appellant
v.

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

                                            Respondent-Appellee



                 Appeal from the United States District Court
                      for the Northern District of Texas


Before WIENER, CLEMENT, and ELROD, Circuit Judges.
WIENER, Circuit Judge:
      Petitioner-Appellant Robert Allen Rabe was convicted in state court of
aggravated robbery with a deadly weapon. He filed a state post-conviction
petition based on the alleged ineffective assistance of his court-appointed trial
counsel, which was denied. He then filed a federal habeas application and
expanded the record to include new evidence. The district court held an
evidentiary hearing at which new witnesses testified, then denied habeas relief.
On appeal, our review is limited to whether Rabe’s trial counsel was ineffective
for failing to subpoena or secure the presence of Rabe’s alibi witness, Jesse Diaz,
                                    No. 09-10938

at trial. In light of the Supreme Court’s recent holding in Cullen v. Pinholster,1
which restricts our review in these cases strictly to the contents of the state-
court record, we conclude that the state court reasonably determined that Rabe’s
assistance of counsel was not ineffective and affirm the district court’s denial of
habeas relief.
                            I. FACTS & PROCEEDINGS
      At approximately 2:00 p.m., three individuals entered a liquor store and
robbed the store clerk at gunpoint. During a six-person photo lineup and again
at trial, the clerk identified Rabe as one of those individuals. According to the
clerk’s testimony at trial, he specifically focused his attention on Rabe during the
robbery because Rabe was the one who had a gun pointed at the clerk’s chest. At
trial, the clerk conceded that during the photo lineup, he had been unsure
whether he had identified the right person, but in the courtroom he was
“absolutely positive” that defendant Rabe was one of the men who had robbed
the store. The robbery was also recorded on a video surveillance camera, and the
videotape, though grainy, was admitted into evidence and shown to the jury.
      Rabe’s alibi was that, at the time of the robbery, he was working with
Jesse Diaz on an air conditioner for Vincent Avalos at Avalos’s house. Rabe
alleges that before trial he gave his court-appointed attorney, Michael Smith, the
names of Avalos, Avalos’s wife, and Diaz as potential alibi witnesses, but that
Smith did contact any of them to testify at trial.
      A jury convicted Rabe of aggravated robbery with a deadly weapon. After
the conviction, but before sentencing, Rabe’s sister watched the surveillance
video and noticed that the suspect alleged to be Rabe—who has tattoos on both
of his arms—did not appear to have tattoos. Smith then raised this issue at
sentencing, but Rabe was nevertheless sentenced to forty-eight years in prison,



      1
          131 S. Ct. 1388 (2011).

                                         2
                                      No. 09-10938

calculated in part by enhancements for two prior felony convictions. Rabe’s
conviction and sentence were affirmed on appeal.
       Rabe filed a state post-conviction petition in which he alleged that Smith
had provided ineffective assistance of counsel. Smith submitted an affidavit in
response to Rabe’s allegations, which the court attached to its findings of fact
and conclusions of law in denying Rabe’s petition. The state trial court
concluded:
       While counsel admits to some errors, this Court does not find the
       errors so serious that he was not functioning as counsel guaranteed
       by the Sixth Amendment. Applicant has not proven that counsel’s
       omissions or mistakes raise a reasonable probability that the
       outcome of the trial would be different but for the errors. Nor does
       this Court find that the minimally deficient purpose prejudiced him
       by depriving him of a fair trial.
A state appeals court affirmed, and the Texas Court of Criminal Appeals denied
relief without written order based on the findings of the trial court.
       Rabe then filed a federal habeas application asserting as his sole ground
of relief that he had received ineffective assistance of counsel2 because Smith:
(1) did not subpoena three alibi witnesses, including Diaz; and (2) failed to
investigate or present evidence that the suspect in the surveillance video, alleged
to be Rabe, did not have tattoos on his arms as does Rabe.
       As the district court was troubled by the state court’s failure to address
Smith’s concession that he “probably dropped the ball” for not sooner discovering
the “tattoo defense,” it scheduled an evidentiary hearing to explore the factual
basis of Rabe’s claim of ineffective assistance of counsel. At the evidentiary
hearing, Avalos and his wife testified that they had hired Rabe to fix their air
conditioner and paid him the day following the robbery, which they would not


       2
          Rabe first filed a pro se application asserting eleven claims. Thereafter, however,
counsel was appointed and he filed an amended application asserting only this single ground
for relief.

                                             3
                                   No. 09-10938

have done had the work not been completed. Neither of them could confirm,
however, that Rabe was at their house at the time of the robbery. They also
testified that they were not contacted by Smith or asked to testify at Rabe’s trial.
In addition, Rabe expanded the record to include an affidavit from Diaz in which
he stated that on the day of the robbery, he had worked with Rabe from 11:00
a.m. until 5:30 p.m. Diaz also testified that he had never been contacted by
Smith. A letter from Diaz to Rabe was added to the record, however, in which
Diaz explained that he was subpoenaed by Smith but was confused about the
date of the trial and left for a job on the day of trial.
      After the evidentiary hearing, the magistrate judge who had conducted it
entered findings and recommended that the district court deny Rabe’s habeas
application. The magistrate judge noted his concern that, because Rabe had
made no attempt to introduce this evidence or obtain statements from these
witnesses at the state habeas proceedings, “it is doubtful whether a federal court
even has discretion to conduct an evidentiary hearing.” Nevertheless, the
magistrate judge considered the evidence in the federal record and concluded
that Rabe had failed to show: (1) “how the testimony of [Avalos and his wife]
would have been helpful to the defense,” and (2) “that Diaz was both available
and willing to testify at his trial.” In addition, the magistrate judge noted that
the surveillance video was “of poor quality” and only showed the top of the
suspect’s forearms, which was inconclusive, given that Rabe’s tattoos are on the
underside of his forearms and his biceps. The magistrate judge recommended
denial of Rabe’s application, and the district court adopted the findings and the
recommendation of the magistrate judge. Rabe timely filed a notice of appeal,
and the district court denied a certificate of appealability (COA).
      Rabe then applied for a COA in this court, which we granted. We limited
our review to Rabe’s claim “that counsel was ineffective for failing to subpoena
and/or secure the presence of Jesse Diaz as a witness during Rabe’s trial . . .

                                          4
                                       No. 09-10938

including whether the district court should have called Diaz to testify at an
evidentiary hearing on that claim.”
                                      II. ANALYSIS
A.    Standard of Review
      On appeal from the district court’s denial of Rabe’s federal habeas
application, we review that court’s findings of fact for clear error and its
conclusions of law de novo, applying the same standard of review to the state
court’s decision that the district court applied.3 Because Rabe filed his federal
habeas application after 1996, the Anti-Terrorism and Effective Death Penalty
Act of 1996 (AEDPA) applies to his claims.4 Pursuant to the AEDPA, we may
grant habeas corpus relief to Rabe only if the state court’s adjudication of his
claim on the merits:
      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme 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.5
In addition, the AEDPA instructs that “a determination of a factual issue made
by a State court shall be presumed to be correct.”6
B.    We May Only Consider the Evidence in the State-Court Record
      Earlier this year, the Supreme Court held, in Cullen v. Pinholster, that
federal review of a state prisoner’s habeas claim is “limited to the record that
was before the state court that adjudicated the claim on the merits.”7 The Court

      3
          Robertson v. Cain, 324 F.3d 297, 301 (5th Cir. 2003).
      4
          Lindh v. Murphy, 521 U.S. 320, 324-26 (1997).
      5
          28 U.S.C. § 2254(d).
      6
          Id. § 2254(e)(1).
      7
          131 S. Ct. at 1398.

                                              5
                                          No. 09-10938

went on to explain that “evidence introduced in federal court has no bearing on
§ 2254(d)(1) review. If a claim has been adjudicated on the merits by a state
court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1)
on the record that was before that state court.”8
      In our review of Rabe’s habeas application, therefore, we may not consider
any of the evidence presented for the first time in federal court. That evidence
included: (1) the testimony of Avalos and his wife, (2) Diaz’s affidavit, and
(3) Diaz’s letter to the court.
C.    Rabe Did Not Show That Diaz Was Able and Willing to Testify at
      Trial
      First, we must determine, based only on the state-court record, whether
that court’s decision—that Smith was not ineffective for failing to subpoena Diaz
or secure his presence at trial—was unreasonable under § 2254(d). We review
claims of ineffective assistance of counsel under the two-prong test articulated
by the Supreme Court in Strickland v. Washington.9 To obtain habeas relief on
that ground, the petitioner must show that: (1) his counsel’s performance was
deficient, i.e., “counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) the
deficient performance prejudiced the petitioner, i.e., “counsel’s errors were so
serious as to deprive the defendant of a fair trial.”10 “[A] court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct. . . . [T]he court should recognize that counsel is strongly presumed to




      8
          Id. at 1400 (emphasis added).
      9
          466 U.S. 668 (1984).
      10
           Id. at 687.

                                               6
                                  No. 09-10938

have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.”11
      In Rabe’s state post-conviction petition, he alleged that he “advised
[Smith] that Jessie Diaz was working with [Rabe] on the day of the robbery and
would likely testify on his behalf” and that “[Smith] did not interview [Diaz] or
have [him] present to testify at trial.” He further alleged that Diaz “would have
testified that at the time of the robbery, [Rabe] was doing house repairs. . . . It
is therefore likely had [Smith] presented [Diaz] the outcome of the trial would
have been different.” But, Rabe did not support this claim with any evidence that
would establish that, but for Smith’s deficient performance, Diaz would have
testified as Rabe’s alibi at trial. Instead, the only evidence in the state record
regarding this claim was an affidavit from Smith, which stated:
             My recollection is I made numerous attempts to contact these
      witnesses [including Diaz]. I do have notes in my file that I left
      messages with these witnesses. These notes are attached to this
      affidavit. There is also what appears to be a mapsco number of
      “34N” next to a [Diaz’s] name indicating that I looked up this
      witness’s address in an effort to speak to him.
             Although I have no independent recollection of speaking with
      any of these witnesses, there is no doubt I at least attempted to
      contact these people.
             Furthermore I spoke to Jay Monych, my investigator on this
      case, and he specifically recalls that we made attempts to contact
      the listed witness, Jesse Diaz, on Mohawk Drive.
             There is no doubt in my mind that these witnesses either
      never called me back or turned out to be of no use to Mr. Rabe’s
      cause.
Rabe’s allegations and Smith’s affidavit were, therefore, the only evidence before
the state court relating to whether Diaz was subpoenaed or could have been
present at Rabe’s trial.




      11
           Id. at 690.

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                                        No. 09-10938

       The state trial court specifically addressed Smith’s alleged failure “to
interview alibi witness [sic] and have them present to testify during trial” and
ruled that Rabe had not received ineffective assistance of counsel, explaining
that “Mr. Smith asserts he made numerous attempts to contact the witnesses
and also spoke with his investigator, Jay Monych, who also made attempts to
locate the witnesses. Mr. Smith states that these witnesses did not return
counsel’s calls and were of no benefit to Applicant.”12 The state trial court
ultimately concluded that “Mr. Smith is known to this Court and is found to be
trustworthy” and accepted Smith’s response to Rabe’s unsupported allegations.
       Because Rabe produced no evidence that Diaz was in fact able and willing
to testify at trial, or even that Smith did not attempt to contact or subpoena Diaz
as Smith claimed in his affidavit, we cannot say that the state court made an
unreasonable determination of the facts in light of the evidence before it. Neither
can we say, based on such evidence, that the state court unreasonably applied
Strickland in concluding that, as to securing Diaz’s presence at trial, Smith’s
performance was not deficient.
                                   III. CONCLUSION
       For the foregoing reasons, the district court’s denial of Rabe’s federal
habeas corpus application is AFFIRMED.13




       12
         Neither the state appeals court nor the Texas Court of Criminal Appeals specifically
considered Smith’s performance regarding his alleged failure to subpoena or secure the
presence of Diaz at trial. As a result, we can review only the state trial court’s finding on that
issue.
       13
          When a habeas applicant fails to demonstrate on the basis of the state-court record
that the state court’s adjudication of his claim resulted in a decision “contrary to” or
“involv[ing] an unreasonable application” of federal law pursuant to § 2254(d)(1), a writ of
habeas corpus shall not be granted, and “our analysis is at an end.” Pinholster, 131 S. Ct. at
1411 n.20. For that reason, we need not decide whether here the district court should have
called Diaz to testify on that claim. We note that we would not have been able to consider such
testimony, even if the district court had called Diaz to testify.

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