* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-60379

Summary Calendar

 

JAMES WEDGEWORTH,

Petitioner-Appellant,

versus

JAMES V. ANDERSON, SUPERINTENDENT, 

MISSISSIPPI STATE PENITENTIARY; 

KENNETH D. CROSS, SHERIFF OF JASPER COUNTY, MS,

Respondents-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 4:96cv28LN

- - - - - - - - - -

June 24, 1998

Before JONES, SMITH and STEWART, Circuit Judges.

PER CURIAM:*

James Wedgeworth appeals from the dismissal of his petition

for a writ of habeas corpus on the basis that he was denied the

effective assistance of counsel in violation of the Sixth

Amendment to the U.S. Constitution. Wedgeworth was sentenced in

the Circuit Court of Newton County, Mississippi to a term of life

imprisonment after being convicted of the capital rape of a child

under fourteen years of age. Wedgeworth contends that his trial
No. 97-60379

-2-

counsel were deficient in failing to adequately investigate, and

present evidence of, Wedgeworth’s alleged sexual impotency. 

Specifically, Wedgeworth argues that his counsel should have

interviewed Dr. Richard Vise, who had previously performed

prostate surgery on Wedgeworth, and called Dr. Vise as a witness

to testify regarding Wedgeworth’s alleged impotency. Wedgeworth

concludes that, as the State would have been required to prove

vaginal penetration as an essential element of his charged crime,

evidence of his impotency may have altered the result of his

trial.

As Wedgeworth’s petition was filed prior to the effective

date of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), this petition is governed by pre-AEDPA habeas corpus

law. See Green v. Johnson, 116 F.3d 1115, 1120 (5th Cir. 1997).

A claim of ineffective assistance of counsel presents a

mixed question of law and fact that we review de novo. Cockrum

v. Johnson, 119 F.3d 297, 302 (5th Cir. 1997). Under Strickland

v. Washington, 466 U.S. 668 (1984), to prevail on this claim,

Wedgeworth must first show that his counsel’s performance fell

below an “objective standard of reasonableness.” Id. at 687-88. 

In addition, Wedgeworth must also prove that his counsel’s

deficient performance prejudiced his defense and deprived him of

a fair trial. Id. at 687. To show prejudice, Wedgeworth must

show that there is a reasonable probability that, but for his

counsel’s deficient performance, the result of the proceedings
No. 97-60379

-3-

would have been different. Kirkpatrick v. Blackburn, 777 F.2d

272, 286 (5th Cir. 1985).

At the evidentiary hearing held by the district court,

Wedgeworth’s trial counsel testified that successfully proving

Wedgeworth’s impotency would not have prevented conviction

because it was possible to have vaginal penetration without an

erection. This fact was confirmed by Dr. Vise. Thus, even if

proven, Wedgeworth’s alleged impotency would not have provided a

defense to his charged crime. Wedgeworth has therefore failed to

prove that his defense was prejudiced by his counsel’s allegedly

deficient performance, as required by the second Strickland

prong.

As Wedgeworth has failed to prove that his defense was

prejudiced, we need not consider whether his counsel’s

performance was deficient. Because Wedgeworth failed to satisfy

his burden of proving both Strickland prongs to establish

ineffective assistance of counsel, his petition for a writ of

habeas corpus was properly denied.

AFFIRMED.