     Case: 15-30702      Document: 00513482710         Page: 1    Date Filed: 04/27/2016




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

                                    No. 15-30702
                                                                                      Fifth Circuit

                                                                                    FILED
                                  Summary Calendar                              April 27, 2016
                                                                               Lyle W. Cayce
CURTIS LEE JOHNSON,                                                                 Clerk


                                                 Petitioner-Appellant

v.

NATHAN B. CAIN, II, WARDEN, AVOYELLES CORRECTIONAL CENTER,

                                                 Respondent-Appellee


                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:13-CV-2252


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Following a jury trial, Curtis Lee Johnson, Louisiana prisoner # 397021,
was convicted of aggravated incest and, as a habitual offender, was sentenced
to 50 years of imprisonment at hard labor. The district court denied his
28 U.S.C. § 2254 petition for writ of habeas corpus, but granted him a
certificate of appealability. Johnson raises two issues on appeal: (i) whether




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30702

his counsel was ineffective for failing to present a defense and (ii) whether his
counsel deprived him of his constitutional right to testify.
      In reviewing the denial of § 2254 relief, this court reviews issues of law
de novo and findings of fact for clear error. Ortiz v. Quarterman, 504 F.3d 492,
496 (5th Cir. 2007). Additionally, the state court’s rejection of claims on the
merits is afforded deference pursuant to § 2254(d).        See Miller v. Thaler,
714 F.3d 897, 901, 902 n.3 (5th Cir. 2013). Under § 2254(d), habeas relief may
not be granted with respect to a claim that was adjudicated on the merits in
state court unless the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law as determined by
the Supreme Court of the United States,” § 2254(d)(1), or “was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding,” § 2254(d)(2); see Harrington v. Richter, 131 S. Ct.
770, 787 (2011). “For claims that are not adjudicated on the merits in the state
court,” this court does not apply the deferential scheme laid out in § 2254(d)
and instead applies “a de novo standard of review.” Hoffman v. Cain, 752 F.3d
430, 437 (5th Cir. 2014).
      As to Johnson’s claim that his counsel was ineffective for failing to
present a defense, Johnson failed to present this claim in his direct appeal to
the Louisiana Supreme Court and failed to raise it in any petition for
postconviction relief in Louisiana state court.      Accordingly, this claim is
unexhausted. See § 2254(b)(1)(A) (application should be dismissed if applicant
has not “exhausted the remedies available in the courts of the State”). As the
deadline for Johnson to file a petition for postconviction relief in Louisiana has
expired, see LA. CODE OF CRIM. PROC. art. 930.8(A), Johnson is procedurally
barred from raising this claim in Louisiana state court, the claim is
procedurally defaulted, and, consequently, this court is barred from reviewing



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                                 No. 15-30702

it. See Woodfox v. Cain, 609 F.3d 774, 793 (5th Cir. 2010). Additionally,
Johnson does not make the necessary showing to enable this court to review
this procedurally defaulted claim. Id.
      As to Johnson’s claim that his counsel deprived him of his right to testify,
Johnson argues that the deprivation violated Louisiana law and the U.S.
Constitution. Insofar as Johnson’s claim rests on the proper interpretation and
application of Louisiana jurisprudence, it fails because it is not within the
scope of federal habeas corpus review. See § 2254(a) (federal habeas court may
grant § 2254 relief only “on the ground that [petitioner] is in custody in
violation of the Constitution or laws or treaties of the United States”); Estelle
v. McGuire, 502 U.S. 62, 67-68 (1991); Molo v. Johnson, 207 F.3d 773, 776 n.9
(5th Cir. 2000).
      Insofar as Johnson’s claim rests on the averment that his counsel denied
him the right to testify in violation of the U.S. Constitution, his claim is
reviewed under the two-prong standard for ineffective assistance of counsel set
forth in Strickland v. Washington, 466 U.S. 668 (1984).            See Bower v.
Quarterman, 497 F.3d 459, 473 (5th Cir. 2007). To prevail under Strickland,
Johnson must establish that his counsel’s performance was deficient, and the
deficient performance prejudiced his defense.        United States v. Mullins,
315 F.3d 449, 453 (5th Cir. 2002). Even assuming arguendo that Johnson
could establish that his counsel’s performance was deficient, he has failed to
establish that he was prejudiced. In order to establish prejudice, Johnson must
show that there is a “reasonable probability” that but for his counsel’s
performance, “the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. Johnson has failed to establish that a reasonable
probability exists that his testimony would have resulted in an acquittal.




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                               No. 15-30702

     The judgment of the district court dismissing Johnson’s § 2254 petition
is hereby AFFIRMED.




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