     Case: 12-50930      Document: 00512615802         Page: 1    Date Filed: 05/01/2014




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

                                                                                  FILED
                                      No. 12-50930                             May 1, 2014
                                                                             Lyle W. Cayce
JEFFREY CLINTON VACCARO,                                                          Clerk


                                                 Petitioner-Appellant

v.


WILLIAM STEPHENS, 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. 6:09-CV-156


Before JOLLY, GARZA, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Jeffrey Clinton Vaccaro (“Vaccaro”), Texas Prisoner # 1275094, was
convicted by a jury of driving while intoxicated and sentenced to 35 years in
prison. At trial, Vaccaro’s counsel, Rickey Lee Bryan (“Bryan”) offered into
evidence a police video of his client’s arrest, presenting only a short segment
during his cross-examination of an arresting officer. The prosecution later
played this same segment while questioning another witness. The video was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-50930
not redacted, and Bryan did not request an instruction limiting the jury’s
consideration to the portion played at trial. The full video contained statements
that the parties agreed were inadmissible—namely, the results of a portable
breath test indicating that Vaccaro had a .147 blood alcohol level one hour after
his collision with another motorist, and statements about Vaccaro’s previous
criminal activity, temperament, and history of incarceration. During
deliberations, the jury requested and was allowed to review the exhibits
submitted during trial, including the arrest video. Bryan did not object.
Because court was being held in temporary facilities, Bryan later overheard
the jury viewing the entire arrest video, not just the segment presented during
the trial. Despite his specific awareness that the jury reviewed inadmissible
evidence while deliberating, Bryan did not object or seek a curative instruction
from the trial court.
           On direct appeal in the state courts, Vaccaro claimed that Bryan
rendered ineffective assistance of counsel. The Texas Court of Appeals affirmed
his conviction and sentence. 1 His subsequent petition for state habeas corpus
relief was denied without a written opinion. Ex parte Vaccaro, No. 47,684-02
at *28 (Tex. Crim. App. 2009). Vaccaro then filed the instant 28 U.S.C. § 2254
petition for a federal writ of habeas corpus, which the district court denied as
to each of his many claims. We granted a certificate of appealability (“COA”)
solely as to Vaccaro’s claim of “ineffective assistance of counsel for (1) failing to
redact the videotape; (2) failing to seek to limit the jury’s viewing of the tape
during deliberations; and (3) failing to object once counsel realized the jury was
viewing the entire tape.”



       1Vaccaro v. State, No.10-4-00336-CR, 2007 WL 1289431 (Tex. App. May 2, 2007)
(unpublished). Vaccaro also filed an appeal for discretionary review with the Texas Court of
Criminal Appeals, but that petition was denied.

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                                      No. 12-50930
       A state prisoner’s federal habeas petition is reviewed under the highly
deferential standard set forth in the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). See Paredes v. Thaler, 617 F.3d
315, 318–19 (5th Cir. 2010). By its terms, AEDPA’s standards only apply “with
respect to any claim that was adjudicated on the merits in State court
proceedings . . . .” 28 U.S.C. § 2254(d).
       Vaccaro claims that AEDPA does not apply because the state courts did
not review his ineffective assistance claim on the merits. This is incorrect. The
last reasoned state court decision, 2 issued from the Texas Court of Appeals,
overruled Vaccaro’s ineffective assistance claim because the appellate record
did not contain sufficient information to satisfy Vacarro’s burden of rebutting
the “strong presumption that counsel provided reasonably professional
assistance.” Vaccaro, 2007 WL 1289431, at *6 (internal quotations and
citations omitted). In determining that Vaccaro did not satisfy his burden
under the state’s governing law, the state court’s ruling goes to the merits of
the claim. In effect, Vaccaro asserts that the state appellate court’s decision
should not be considered a decision on the merits because it did not engage in
a full Strickland analysis, rather resting its decision on the insufficiency of the
record. However, “a federal habeas court is authorized by Section 2254(d) to
review only a state court’s ‘decision,’ and not the written opinion explaining
that decision.” Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002). The Supreme
Court recently reconfirmed that Section “2254(d) does not require a state court



       2 The Texas Court of Criminal Appeals denied state postconviction relief without
written order. Ex parte Vaccaro, No. 47,684-02 at *28 (Tex. Crim. App. 2009). “When faced
with a silent or ambiguous state habeas decision, the federal court should ‘look through’ to
the last clear state decision on the matter” to determine whether the decision is an
adjudication on the merits or procedural. Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir.
1999).

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                                     No. 12-50930
to give reasons before its decision can be deemed to have been ‘adjudicated on
the merits.’” Harrington v. Richter, 131 S. Ct. 770, 785 (2011). Even if, “a state
court’s decision is unaccompanied by an explanation, the habeas petitioner’s
burden still must be met by showing there was no reasonable basis for the state
court to deny relief.” Id. at 784.
      Because the Texas Court of Appeals rendered a decision on Vaccaro’s
ineffective assistance of counsel claim, the § 2254(d) standards apply to his
petition. Section 2254(d) establishes that:
      Federal habeas relief may not be granted for claims . . . unless it is
      shown that the earlier state court’s decision “was contrary to”
      federal law then clearly established in the holdings of [the
      Supreme] Court, §2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412
      (2000) . . . ; or that it “involved an unreasonable application of”
      such law, §2254(d)(1); or that it “was based on an unreasonable
      determination of the facts” in light of the record before the state
      court, §2254(d)(2).
Harrington, 131 S. Ct. at 785. Moreover, “[a] state court’s determination that
a claim lacks merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s decision.” Id.
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). This standard is
difficult to meet, and the Supreme Court has affirmed that, “it was meant to
be” so. Harrington, 131 S. Ct. at 786.
      The state court decision under review concludes that Bryan did not
provide ineffective assistance of counsel. To prevail on an ineffective assistance
of counsel claim, Vaccaro must show (1) that his counsel’s performance was
deficient such that it fell below an objective standard of reasonableness; and
(2) that the deficient performance prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668, 687–94 (1984). A failure to establish either element
defeats the claim. Id. at 687. Performance is deficient when “counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed

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                                         No. 12-50930
the defendant by the Sixth Amendment.” Id. at 687. Prejudice is shown when
“there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Porter v. McCollum,
558 U.S. 30, 38–39 (2009) (internal quotations omitted). 3 Accordingly, here, as
in Harrington, “[t]he pivotal question is whether the state court’s application
of the Strickland standard was unreasonable.” Harrington, 131 S. Ct. at 785.
       Assuming, without deciding, that Bryan’s failure to redact the tape,
prevent the jury from viewing the full tape, and object after learning of the
error, constitute deficient performance, we conclude that “fairminded jurists
could disagree” as to whether Bryan’s deficiency prejudiced Vaccaro.
Yarborough, 541 U.S. at 664. Thus, the state court decision disposing of
Vaccaro’s Strickland claim precludes federal habeas relief. Harrington, 131 S.
Ct. at 786.
       Vaccaro asserts that he was prejudiced because the jury would not have
convicted him had it not viewed the entire arrest video. 4 In Texas, at the time
of Vaccaro’s conviction, “a person commits a [DWI] offense if the person is


       3 There is a limited set of Strickland claims in which prejudice will be presumed when
counsel does not put the Government’s case to “meaningful adversarial testing.” United
States v. Cronic, 466 U.S. 648, 659 (1984). Vaccaro’s claim does not fall within this set. The
presumption arises in a “narrow spectrum of cases,” such as those “involving the absence of
counsel from the courtroom, conflicts of interest . . . and official interference with the defense.”
Childress v. Johnson, 103 F.3d 1221, 1228–29 (5th Cir. 1997).

       4 Vaccaro also asserts that Bryan’s deficient performance resulted in prejudice at the
sentencing stage, because it was possible that the jury imposed a higher sentence based upon
the information it gleaned from viewing the full video. We do not reach this claim because
Vaccaro failed to raise it before the state courts or the district court. This is not a situation
in which the pro se petitioner has inartfully identified a legal error, in which case we would
give the argument a liberal construction, affording it the same consideration as a competently
briefed argument made by an attorney. See United States v. Hampton, 99 F.3d 1135, at *1
(5th Cir. 1996) (unpublished) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). This is a
new legal theory raised for the first time in the instant appeal. Even with the leeway afforded
pro se appellants, “[a]s a general rule, this Court does not review issues raised for the first
time on appeal.” Yohey v. Collins, 985 F.3d 222, 225 (5th Cir. 1993) (citing United States v.
Garcia-Pillado, 898 F.2d 36, 39 (5th Cir. 1990)).
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                                 No. 12-50930
intoxicated while operating a motor vehicle in a public place.” TEX. PENAL
CODE ANN. § 49.04(a) (West 2003). The evidence adduced at trial suggests the
jury could have convicted Vaccaro of the Texas DWI offense without any
consideration of the inadmissible information obtained from viewing the full
arrest video—including his .147 blood alcohol level.
      At least three witnesses offered testimony strongly suggesting that
Vaccaro was intoxicated at the time of the collision. The complainant, Rosa
Zapata (“Zapata”), whose stopped car was rear-ended by Vaccaro on a public
road, testified that Vaccaro collided with her vehicle shortly after 9:00 PM. She
informed the jury that Vaccaro smelled of liquor, and could not speak clearly
or stand straight when he exited his car to speak with her. Zapata also offered
her opinion that Vaccaro “was drunk” at the time of the collision. Her
recollection of the timing of the accident was supported by the 9:13 PM
timestamp from the 911 call she placed from her home after leaving the scene.
Additionally, the arresting officers took the stand and testified that Vaccaro
demonstrated symptoms of intoxication when he was discovered sleeping in his
pickup in a nearby parking lot at approximately 10:00 PM. The officers
testified that Vaccaro smelled of alcohol, had bloodshot eyes, seemed confused,
slurred his words, and did not know where he was.
      At minimum—and this is the only relevant issue under AEDPA’s
deferential standard—whether there is a reasonable probability that the jury
would have reached a different verdict but for Bryan’s deficient performance is
a question about which reasonable jurists could disagree. As the Supreme
Court explained in Harrington, to obtain a federal writ of habeas corpus, “a
state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” 131 S. Ct. at 786–87 (emphasis added).
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Accordingly, we cannot say that the state court’s decision is unreasonable, and
we may not grant Vaccaro habeas relief under § 2254(d).
      AFFIRMED.




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