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

                                                                  FILED
                                                              February 28, 2008
                                No. 06-30590
                              Summary Calendar              Charles R. Fulbruge III
                                                                    Clerk
JEREMY MATTIO

                                           Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

                                           Respondent-Appellee


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                           USDC No. 2:05-CV-871


Before HIGGINBOTHAM, STEWART and ELROD, Circuit Judges.
PER CURIAM:*
       Jeremy Mattio, Louisiana prisoner # 369156, appeals the dismissal of
his 28 U.S.C. § 2254 application challenging his jury conviction of forcible
rape, his multiple offender adjudication, and his sentence of 30 years of
imprisonment. The district court granted a COA regarding the following
grounds: (1) whether Mattio was denied effective assistance of counsel and (2)
whether Mattio’s due process rights were violated when the State withheld
exculpatory evidence.


       *
      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should not be published and is not precedent except under the limited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. 06-30590

      In a habeas corpus appeal, we “review the district court’s findings of
fact for clear error and review its conclusions of law de novo, applying the
same standard of review to the state court’s decision as the district court.”
Beazley v. Johnson, 242 F.3d 248, 255 (5th Cir. 2001) (internal quotation
marks and citation omitted). In addition, under the Antiterrorism and
Effective Death Penalty Act (AEDPA), a federal court may not grant habeas
relief on questions adjudicated on the merits by the state court unless the
state court’s decision (1) was contrary to, or 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).
      Mattio contends that his attorney rendered ineffective assistance by
failing to call two crucial witnesses at trial who could have impeached the
testimony of the victim. To prevail on an ineffective-assistance claim, a
defendant must show “that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.” Strickland v. Washington, 466
U.S. 668, 687 (1984). Failure to establish either deficient performance or
prejudice defeats the claim. Id. at 697. The court indulges in a strong
presumption that counsel’s representation fell within the wide range of
reasonable professional competence, or that, under the circumstances, the
challenged action “might be considered sound trial strategy.” Bridge v.
Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988) (internal quotation and citation
omitted). Mattio has not overcome the presumption that his counsel
reasonably relied upon the subpoena he issued as well as assurances he
received from one of the witnesses that he would testify. See Bridge, 838 F.2d
at 773. Mattio similarly has failed to rebut the presumption concerning the
second uncalled witness who allegedly would have testified that he smelled
alcohol on the victim’s breath. See Wilkerson v. Cain, 233 F.3d 886, 892-93
(5th Cir. 2000).

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                                  No. 06-30590

      Mattio contends that his attorney rendered ineffective assistance by
failing to subpoena and inspect the victim’s medical records. Even if it is
assumed that the medical records Mattio sought to present at trial
demonstrated that the victim had consumed alcohol, Mattio has not shown
that such evidence was sufficient to nullify the jury’s verdict. See Strickland,
466 U.S. at 694.
      Mattio contends that his attorney rendered ineffective assistance by
stipulating to damaging evidence. Because Mattio’s counsel objected to the
use of a photo identification, Mattio’s argument regarding this evidence was
moot. Further, Mattio cannot challenge the stipulation of DNA evidence
because the district court did not grant a COA on the ground, and he has not
requested an expansion of the COA. See United States v. Kimler, 150 F.3d
429, 431 (5th Cir. 1998). Additionally, he does not articulate what trial
strategy should have been pursued in light of the undisputed evidence that he
had sex with the victim. Thus, Mattio has not overcome the “strong
presumption” that counsel’s decision to stipulate to the evidence was “sound
trial strategy.” See Strickland, 466 U.S. at 689. Nor has he shown prejudice.
See id. at 694.
       Mattio contends that his attorney rendered ineffective assistance by
failing to explain the consent defense and to allow him to testify at trial.
Although a defense counsel’s “decision whether to put a Defendant on the
stand is a ‘judgment call’ which should not easily be condemned with the
benefit of hindsight,” “it cannot be permissible trial strategy, regardless of its
merits otherwise, for counsel to override the ultimate decision of a defendant
to testify contrary to his advice.” United States v. Mullins, 315 F.3d 449, 453
(5th Cir. 2002). Assuming that Mattio was not fully informed of his right and
that he has met the first prong of Strickland, he has nevertheless failed to
establish prejudice in light of the totality of the evidence introduced at trial.
See Mullins, 315 F.3d at 456.

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                                 No. 06-30590

      Mattio argues that his due process rights were violated because the
State withheld exculpatory evidence, namely the victim’s rap sheet showing
her DWI conviction and pending DWI prosecution. Because Mattio has not
established any “material” use for the evidence, his assertion is wholly
conclusional and insufficient to warrant habeas relief under Brady v.
Maryland, 373 U.S. 83, 86-87 (1963). See Murphy v. Johnson, 205 F.3d 809,
814 (5th Cir. 2000). Accordingly, we affirm the district court’s dismissal of
Mattio’s habeas application.
      AFFIRMED.




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