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

                                                                            FILED
                                                                        September 24, 2008
                                     No. 06-10132
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

JOEL GARCIA NUNEZ

                                                  Petitioner–Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                  Respondent–Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:03-cv-2812


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Joel Garcia Nunez, Texas prisoner # 01002419, appeals from the district
court’s denial of his 28 U.S.C. § 2254 petition. This court granted a certificate
of appealability (COA) on the issue of whether Nunez’s trial counsel was
ineffective for failing to object to the State’s introduction of collateral matters
during cross examination at the penalty phase of his trial. Also pending before
this court is Nunez’s motion for appointment of counsel.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-10132

      With respect to Nunez’s claim of ineffective assistance of counsel, which
was adjudicated on the merits in his state court proceedings, habeas relief will
not be granted unless Nunez shows that the state court’s adjudication “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 that the state court’s adjudication of a claim “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.” 28 U.S.C. § 2254(d)(1);
Williams v. Taylor, 529 U.S. 362, 402-13 (2000).
      To prevail on an ineffective assistance of counsel claim, Nunez must show
that his counsel’s assistance was deficient and that the deficiency prejudiced his
defense.   See Strickland v. Washington, 466 U.S. 668, 687 (1984).             To
demonstrate deficient performance, Nunez must establish that counsel’s
representation fell below an objective standard of reasonableness. Id. at 687-88.
To demonstrate prejudice, a defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. at 694. A failure to establish either
deficient performance or resulting prejudice defeats the claim. Id. at 697.
      Nunez pled guilty to the first degree murder of Manuel Martinez, who
Nunez believed was having an affair with Nunez’s common law wife, Floridama
Berrios. On the night of the murder, Nunez stopped by Berrios’s apartment.
When Nunez saw Martinez appear from inside the apartment, Nunez fatally
shot Martinez in the head at point blank range.
      During sentencing, which was tried before a jury, Nunez testified, raising
the defense of sudden passion. Nunez testified that he and Berrios were
separated because of Martinez. The State cross examined Nunez on this issue,
asking if his wife had really left him because he had assaulted her two months
prior to the murder. Nunez denied assaulting his wife. The next day, the State
recalled Nunez for rebuttal, again questioning him about the assault. Nunez’s

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attorney did not object to the State’s questions regarding the assault, the
collateral matter which forms the crux of this appeal. At the close of the
evidence, the jury rejected Nunez’s sudden passion defense and sentenced him
to 99 years in prison.
      In order to demonstrate that counsel was deficient for failing to object
under the first prong of Strickland, Nunez must show that an objection would
have had merit – an attorney’s conduct can hardly be found objectively
unreasonable for failing to make a meritless objection. Whether an objection
would have had merit depends on whether the alleged assault by Nunez is a
collateral matter under Texas state law. The resolution of this question resulted
in opposing decisions by two Texas courts. On Nunez’s direct appeal, the state
appellate court agreed that the prosecutor’s questions on cross examination were
improper because any facts pertaining to Nunez’s possible assault of his wife
several weeks earlier involved a collateral matter. However, the court affirmed
Nunez’s conviction because his counsel failed to object to the introduction of
collateral matters on cross examination and thus procedurally defaulted the
claim. The appellate court’s rationale lends support to Nunez’s argument that
his counsel was deficient.
      However, on state habeas review, the trial court found that the
prosecutor’s questioning Nunez regarding a prior assault during the punishment
hearing did not involve a collateral matter for two reasons. First, the court held
that Nunez’s prior offenses, even unadjudicated ones such as the alleged assault
of his wife, were proper matters of proof at a punishment hearing. Tex. Code
Crim. Proc. Ann. art. 37.07(3)(a) (Vernon 2007). Second, Nunez testified during
direct examination that Martinez’s interference in his relationship with Berrios
led to their separation some weeks earlier. Thus, the prosecutor was permitted
to question Nunez regarding another possible reason for Nunez’s separation
from Berrios, a reason that would have undermined his direct testimony. For
these reasons, the state habeas court held that it was not ineffective for trial

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counsel to fail to object to the prosecutor’s proper question. The Texas Court of
Criminal Appeals denied Nunez’s application for a writ of habeas corpus without
written order; it relied on the findings of the trial court that were reached
without a hearing. Although the two lower courts disagreed regarding the
collateral matter, the state’s highest criminal court denied Nunez’s habeas
application. This is a strong statement by the highest criminal court in Texas
that Nunez’s proposed objection would have been meritless.
      The federal district court held that the Texas Court of Criminal Appeals’
decision was neither contrary to, nor involved an unreasonable application of,
Strickland. Because Nunez failed to object to the magistrate judge’s report and
recommendation, our review is limited to plain error. See Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc).
      On appeal, Nunez has not shown that the Court of Criminal Appeals was
unreasonable when it decided that the cross examination did not involve
collateral matters. Nunez’s counsel cannot have rendered ineffective assistance
by failing to make a meritless objection. See Green v. Johnson, 160 F.3d 1029,
1037 (5th Cir. 1998), cert. denied, 525 U.S. 1174 (1999). Accordingly, Nunez has
not established deficient performance by his counsel, and we need not address
whether there was any prejudice. See Strickland, 466 U.S. at 697.
      The judgment of the district court is AFFIRMED. Nunez’s motion for
appointment of counsel is DENIED.




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