                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                IN THE UNITED STATES COURT OF APPEALS             January 22, 2004
                        FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                                                                     Clerk

                              No. 03-40329
                            Summary Calendar



                         ROBERT CLINTON HINKLE,

                                       Petitioner-Appellant,

                                  versus

                        DOUG DRETKE, DIRECTOR,
                TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
                  CORRECTIONAL INSTITUTIONS DIVISION,

                                       Respondent-Appellee.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                       USDC No. 6:02-CV-110
                        --------------------

Before BARKSDALE, Emilio M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     A jury convicted Robert Clinton Hinkle, Texas inmate #877047,

of capital murder, finding that he shot and killed two men as they

sat in his living room.     The trial court sentenced Hinkle to life

imprisonment.       The district court granted a COA on the issue

whether   counsel    provided   ineffective   assistance   when    he   told

Hinkle’s witnesses that their testimony was not needed.


     *
        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that this opinion should not be published and is not precedent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. 03-40329
                                      -2-

       Federal   habeas   relief     may    not   be    granted    on    questions

adjudicated on the merits by a state court unless the state court’s

decision (1) was contrary to or was an unreasonable application of

clearly established federal law as determined by the Supreme Court;

or (2) 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).

       To establish ineffective assistance, Hinkle must show that

counsel’s    performance       was   deficient    and    that     the    deficient

performance caused him prejudice.            See Strickland v. Washington,

466 U.S. 668, 687 (1984).        “[C]omplaints of uncalled witnesses are

not favored, because the presentation of testimonial evidence is a

matter of trial strategy,” and counsel is entitled to a presumption

that his performance was adequate.             Wilkerson v. Cain, 233 F.3d

886,   892-93    (5th   Cir.    2000).       To   demonstrate      the   required

Strickland prejudice on his claim of ineffective assistance based

on uncalled witnesses, Hinkle “must show not only that [the]

testimony would have been favorable, but also that the witness

would have testified at trial.”            Evans v. Cockrell, 285 F.3d 370,

377 (5th Cir. 2002).

       The district court concluded that Hinkle did not show that the

uncalled witnesses’ testimony would have been favorable and that

counsel’s decision to omit the testimony was not a matter of sound

trial strategy.    See Evans, 285 F.3d at 377; Wilkerson, 233 F.3d at

892-93.    We agree.
                          No. 03-40329
                               -3-

    Hinkle has not made the showing required under 28 U.S.C.

§ 2254(d).   Accordingly, the judgment of the district court is

AFFIRMED.
