     Case: 13-30022       Document: 00512469997         Page: 1     Date Filed: 12/12/2013




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

                                                                            FILED
                                                                        December 12, 2013
                                     No. 13-30022
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DONALD RAY JOHNSON, JR.,

                                                  Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 1:12-CV-92


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Donald Ray Johnson, Jr., Louisiana prisoner # 543914, filed the instant
28 U.S.C. § 2254 petition challenging his guilty pleas to first degree murder,
unauthorized use of a motor vehicle, and unauthorized use of an access card, for
which he received a life sentence plus 12 years. By pleading guilty, Johnson
avoided a possible capital conviction. The district court granted him a certificate
of appealability on the issues whether he received ineffective assistance of trial
counsel when counsel (1) failed to investigate the viability of an insanity defense

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 13-30022

by terminating the efforts being made by the Department of Veterans Affairs to
secure Johnson a mental evaluation to determine whether he suffered from Post
Traumatic Stress Disorder or a Traumatic Brain Injury and (2) failed to
investigate whether he had the mental competency to proceed to trial.
      On habeas review, we review the district court’s findings of fact for clear
error and its legal conclusions de novo. Summers v. Dretke, 431 F.3d 861, 868
(5th Cir. 2005). Where the petitioner’s claim has been adjudicated on the merits
by the state court, the federal court’s review of the state court’s decision is
deferential. Id.; see § 2254(d). Pursuant to the Antiterrorism and Effective
Death Penalty Act, federal habeas relief cannot be granted on claims adjudicated
on the merits in state court unless the state court’s decision was (1) “‘contrary
to, or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States’”; or was (2) “‘based
on an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.’” Miller v. Thaler, 714 F.3d 897, 901 (5th Cir.
2013) (quoting § 2254(d)). To meet the § 2254(d) criteria, a habeas petitioner
“must show that the state court’s ruling on his claim was so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Id. (internal
quotation marks and citation omitted).
      To prevail on a claim of ineffective assistance of counsel, a petitioner must
show that (1) his counsel’s performance was deficient in that it fell below an
objective standard of reasonableness and (2) the deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 689-94 (1984).
Failure to establish either deficient performance or prejudice defeats the claim.
Id. at 697. “[T]he two-part [Strickland] test applies to challenges to guilty pleas
based on ineffective assistance of counsel.” Lafler v. Cooper, 132 S. Ct. 1376,
1384 (2012) (internal quotation marks and citation omitted). To satisfy the
prejudice requirement in the context of a guilty plea, the petitioner must show

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but for counsel’s pretrial errors, he would not have pleaded guilty and would
have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
      Johnson’s argument is premised on facts which show that on or about the
date he accepted the State’s plea offer, his counsel received notification that the
Department of Veteran Affairs was in the process of securing him a medical
evaluation.   Johnson contends that had he known that the process of
determining whether he suffered from PTSD or a TBI had commenced, he would
not have accepted the State’s offer and would have insisted on going to trial.
      There is no evidence in the record that counsel was on notice that Johnson
suffered from a physical or psychological condition that would have made the
insanity defense viable. A defendant who raises the insanity defense “must
persuade the jury that he had a mental disease or defect which rendered him
incapable of distinguishing right from wrong with reference to the conduct which
forms the basis for the criminal charge against him.” State v. Allen, No. 2011 CA
1995, 2012 WL 2061472, *6 (La. Ct. App. 2012).              Johnson’s confession
overwhelmingly establishes that he was not incapable of distinguishing right
from wrong with regard to this murder. His decision to position the body so that
it would not be seen, his discarding of evidence, and, inter alia, his lying to
family as to his whereabouts on the night of the murder all point to a conclusion
of sanity. See State v. Foster, 647 So. 2d 1224, 1230-31 (La. Ct. App. 1994). As
such, he has failed to show that an investigation by counsel into the mere
possibility that he suffered from PTSD or TBI would have caused him to forgo
the plea offer and insist upon a capital trial. Consequently, he has not shown
the state court’s application of Strickland to be unreasonable in this regard. See
Miller, 714 F.3d at 901.
      With regard to counsel’s failure to investigate his mental competency to
stand trial, Johnson speculates that such an investigation could have
established that he suffered from PTSD or a TBI that affected his ability to
understand the proceedings or appreciate their significance or to aid his counsel

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in his defense.   See Roberts v. Dretke, 381 F.3d 491, 497 (5th Cir. 2004).
However, a petitioner “who alleges a failure to investigate on the part of his
counsel must allege with specificity what the investigation would have revealed
and how it would have altered the outcome of the trial.” United States v. Green,
882 F.2d 999, 1003 (5th Cir. 1989). Johnson has not met that burden. His
contention that the dearth of necessary evidence is owing to counsel’s failure to
investigate is unavailing because Strickland places the burden on Johnson to
come forward with evidence of counsel’s deficient performance and prejudice.
466 U.S. at 689-94. Additionally, while the state habeas court’s opinion that
Johnson appeared competent during the proceedings may not be legally
determinative of the issue, it nevertheless suggests that counsel similarly did
not have reason to doubt his competency to stand trial and therefore was under
no obligation to investigate the issue further. As Johnson has neither alleged
nor established what an investigation would have yielded, he cannot show that
but for the failure to investigate, he would have proceeded to a capital trial. See
Hill, 474 U.S. at 59. In light of the preceding, Johnson has not shown the state
court’s decision to be contrary to, or involving an unreasonable application of
Strickland, or that it involved an unreasonable determination of the facts in
light of the state court evidence. See Miller, 714 F.3d at 901.
      AFFIRMED.




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