* Judge o f the United States Court of International Trade,

sitting by designation.

** Pursuant to 5 TH C IR . 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4.

1 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-30893

RONNIE HONGO,

Petitioner-Appellee,

VERSUS

BURL CAIN, Warden,

Louisiana State Penitentiary, Angola, Louisiana,

Respondent-Appellant.

Appeal from the United States District Court

For the Western District of Louisiana

(5:98-CV-2305)

June 18, 2001

Before STEWART and PARKER, Circuit Judges, and GOLDBERG, Judge. *

PER CURIAM: **

Burl Cain, Warden of the Louisiana State Penitentiary in2

Angola, Louisiana (referred to hereafter as the “State”), appeals

the district court’s grant of habeas corp us relief to Petitioner

Ronnie K. Hongo, Louisiana prisoner #98420. We reverse.

FACTS AND PROCEDURAL HISTORY

Hongo w as convicted in a Louisiana state court of attempted

second-degree murder and sentenced to lif e imprisonment without

benefit of parole. He was also convicted of possession of a

firearm by a felon, for which he received a five-year sentence.

Hongo shot Karen Garner in the head with a pistol and blinded

her in one eye. At trial, Garner testified that Hongo appeared at

her front door armed with the pistol and that he shot at her twice,

striking her once. According to the testimony of Officer Martone,

Hongo admitted, shortly after his arrest, that he went to Garner’s

home to shoot Garner’s father and said that he did not mean to

shoot Garner. At trial, Hongo testified that he went to the Garner

hou se with a 20 gauge shotgun in his pants, but no pistol. He

claimed he was talking to Garner, who had the pistol on a nearby

table, when they got into a playful wrestling match during which

the pistol was accidentally discharged. Hongo denied making the

incriminating statements after his arrest.

Hongo appealed, alleging that Officer Martone’s testimony

about Hongo’s post-arrest statement was improper and that his prior

convictions were not grounds for an enhancement. Hongo’s

conviction was affirmed, but the matter was remanded to correct a3

sentencing error. State v. Hongo , 625 So.2d 610, 620 (La. App. 3

Cir. 1993).

Hongo filed a state habeas petition, alleging t hat his

sentence was unconstitutionally excessive and that his counsel was

ineffective for failing to objec t to the use of a 1977 felony

conviction and to a clearly erroneous jury instruction. Hongo

contended that the jury was erroneously instructed on the elements

of attempted second-degree murder. The state judge had instructed

Hongo’s jury that second-degree murder required specific intent to

kill or inflict great bodily harm

. Hongo argued that, under

Louisiana law, attempted murder requires that the state prove

specific intent to kill. The state district court denied relief

without written reasons. The state intermediate appellate court,

in a two-to-one split-panel decision, found that Hongo’s attorney

was ineffective, grante d relief, and vacated Hongo’s conviction.

The Louisiana Supreme Court reversed and reinstated Hongo’s

conviction. S tate v. Hongo

, 706 So.2d 419, 42 2 (La. 1997). The

Louisiana Supreme Court found that the state presented sufficient

evidence that Hongo had the intent to kill the victim but failed to

complete his plans and that there was no evidence presented to the

jury which would support a finding that Hongo had the intent to

inflict great bodily harm. Id. Therefore, the Louisiana Supreme

Court concluded that although Hongo’s counsel’s per formance fell

below prevailing professional norms, his deficient performance did4

not prejudice the defendant. Id. Hongo filed a second state

habeas petition on an unrelated issue, which was denied.

Hongo then filed this federal habeas petition, alleging that

the erroneous jury instruction concerning intent to inflict great

bodily harm mandated a reversal without a harmless error analysis

and that trial counsel was ineffective for failing to object to the

e rroneous jury instruction on attempted second-degree murder and

attempted manslaughter. The magistrate judge, in a report and

recommendation, noted that the state conceded that the trial court

improperly instructed the jury on the standard for finding

attempted second-degree murder and that the error rendered the

instruction constitutionally deficient. The magistrate judge

employed harmless error analysis and found that, despite the error,

there was no reasonable probability that th e jury would have

returned a differ ent verdict had the instruction been consistent

with the law. Thus, the magistrate judge concluded that Hongo

failed to establish prejudice arising from counsel’s failure to

object to the erroneous jury instruction. Hongo filed objections

to the magistrate judge’s report and recommendation.

The district court conducted a de novo review, and found that

the erroneous jury instruction, combined with erroneous statements

of law to the jury by both defense counsel and the prosecutor had

a substantial effect or influence on the verdict such that there

was more than a reasonable possibility that the result would have5

been different had the jury been properly instructed. The district

court found that defense counsel’s failure to object to the

erroneous instruction was deficient performance, and that defense

c ounsel’s error resulted in prejudice given the frequency of the

erroneous statement and the Fifth Circuit’s holding in Gray v.

Lynn

, 6 F.3d 265 (5th Cir. 1993). The district court conditionally

granted Hongo’s writ of habeas corpus, vacated his conviction and

ordered that he be released from custody unless the state, within

180 days, commenced its prosecution.

The State timely appealed. No certificate of appealability is

required b ecause a representative of the State is appealing the

district court’s grant of habeas relief. S ee F ED

. R. A PP

. P.

22(b)(3).

DISCUSSION

A. Standard of review

“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.” Thompson v. Cain , 161 F.3d 802,

805 (5th Cir. 1998).

A district court shall not grant Federal habeas relief for

any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim

–

(1) re sulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determin ed by the Supreme1 Williams rejected the Fifth Circuit’s apparently subjective

“reasonable jurist” standard set out in Drin kard v. Johnson , 97

F.3d 751, 769 (5th Cir. 1996). Beazley v. Johnson , ___ F.3d ___,

2001 WL 118393 (5th Cir. 2001).

6 Court of the United States; or

(2) resulted in a decision that was base d on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

In reviewing the state court’s decisions regarding questions

of law under the “unreasonable application” clause, a federal

habeas court may not issue a writ simply because that court

concludes, in its independent judgmen t, that the relevant statecourt decision applied clearly established federal law erroneously

or incorrectly. W illiams v. Taylor

, 529 U.S. 362,

___, 120 S. Ct.

1495, 1522 (2000). Rather, that application must also be

unreasonable. I d. A federal habeas court making the “unreasonable

application” inquiry must ask whether the state court’s application

of clearly es tablished federal law was objectively 1 reasonable.

Id. M ixed questions of fact a nd law are likewise reviewed for

unreasonable application of clearly established federal law. See

Lockhart v. Johnson , 104 F.3d 54, 56-57 (5th Cir. 1997).

A state court’s factual determinations ar e reviewed to

determine whether the state court’s adjudication of the claim

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in7

the state court proceeding. S ee id. A determination of a factual

issue made by a state court shall be presumed t o be correct, and

the applicant has the burden of rebutting the presumption of

correctness by clear and convincing evidence. See § 2254(e)(1).

To obtain relief based upon ineffective assistance of counsel,

a defendant must demonstrate both that his counsel’s performance

was deficient and that the deficient performance prejudiced the

defense. S trickland v. Washington

, 466 U.S. 668, 687 (1984).

Judicial scrutiny of co unsel’s performance must be highly

deferential, and courts must indulge in a strong presumption that

counse l’s conduct falls within the wide range of reasonable

professional conduct. I d. at 689. The defendant bears the burden

of proving both deficient performance and prejudice resulting from

error. Westley v. Johnson , 83 F.3d 614, 719 (5th Cir. 1996). To

establish prejudic e, the defendant “must show that there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceedi ng would have been different.

Strickland

, 466 U.S. at 694. A failure to establish either

deficient performance or prejudice defeats the claim. I d. at 697.

B. Was Hongo prejudiced by counsel and district court errors?

Th e State concedes, as it has throughout Hongo’s habeas

proceedings, that the trial court erroneously instructed the jury

on the elements of attempted second-degree murder. The trial court

instructed the jury that in order to be convicted of second-degree8

murder th e jury had to find that the defendant had the specific

intent to kill or inflict great bodily harm. Under Louisiana law,

Hongo had to have the specific intent to kill; the intent to cause

great bodily harm is not an element attempted second-degree murder.

State v. Butler

, 322 So.2d 189 (La. 1975). Neither does the State

challenge on appeal the district court’s holding that Hongo’s

counsel’s failure to object to the erroneous instruction was

d eficient performance. As the Louisiana Supreme Court noted in

Hongo’s State habeas proceeding, “the first prong [of Strickland ]

is easily met here, as the rule of Butler is well-established with

over twenty years duration and a reasonably competent attorney

would know of it and properly object when presented with the

instant erroneous instruction.” H ongo

, 706 So.2d at 422. The

State’s appeal focuses instead on whether these errors prejudiced

Hongo.

In order to establish prejudice, Hongo must demonstrate that

there is a reasonable probability that the jury would h ave had a

reasonable doubt respecting Hongo’s guilt if the phrase “or inflict

great bodily harm” had been left out of the jury charge. Gray , 6

F.3d at 269-70. The district court conducted a de novo review of

the record and found that the erroneous jury instruction, combined

with erroneous statements of the l aw to the jury made by both

defense counsel and the prosecutor had a substantial effect on the

verdict, thus concluding that the Louisiana Supreme Court’s opinion9

denying Hongo relief incorrectly applied federal law. However, the

district court erred when it failed to inquire whether the state

court application of federal law was unreasonable. See Williams

,

120 S. Ct. at 1522.

There is no dispute that the Louisiana Supreme Court applied

the correct law in examining the prejudice prong of the Strickland

ineffe ctive assistance of counsel test. The only question is

whether it correctly applied that law to the facts. Upon

examination of the record, the Louisiana Supreme Court found that

the j ury in this case was presented with a binary choice between

the State’s and the defendant’s version of what occurred. The

defendant testified that he and the victim were struggling over the

gun when it accidentally discharged. H ongo

, 706 So.2d at 442. The

State presented evidence that the defendant entered the house with

the intent to kill the victim but failed to complete his plan. I d.

There was no argument or evidence presented to the jury which would

support a finding that Hongo had the intent to only inflict great

bodily harm. Id. “Indeed, given only the two versions that were

presented, no reasonable jury could have concluded that defendant

had the intent to only inflict great bodily harm.” I d. T hus, the

Lo uisiana Supreme Court concluded that the erroneous jury

instruction did not prejudice the defendant or affect the verdict.

Id. T he Louisiana Supreme Court’s characterization of the evidence

in the record is accurate and its application o f the law to that10

evidence is not unreasonable.

The Fifth Circuit decision in Gray v. Ly nn , 6 F.3d 265 (5th

Cir. 1993), on which the district court grounded its decision, is

inapposite. In Gray , as in the case at bar, trial counsel failed

to object to a jury instruction on attempted murder that allowed

the jury to convict the defen dant if they found that he intended

only to inflict great bodily harm on his victim. I d. at 269. This

court concluded that a jury could have interpreted the evidence to

prove that Gray intended to harm, but not to kill, his victim based

on the fact that Gray was presented with several “golden

opportunities” to kill his victim, but did not take advantage of

them. I d. at 270. Indeed, Gray fired three shots at close range,

none of which hit the victim. I d. T herefore, we held that Gray

met his burden of establishing that he had been prejudiced by his

counsel’s error. I d. at 271. Here, Hongo fired two shots at close

range, hitting his victim in the head. Hongo’s jury did not have

the same missed “golden opportunities” to consider that we found

persuasive in Gra y’s case. More importantly, Gray filed his

federal habeas application in 1987, id. at 267, so the deference we

owe to the State court determination in this suit, per §

2254(e)(1), as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), was not an element of the analysis

in Gray. S ee Lindh v. Murphy

, 521 U.S. 320 (1997)(holding that the

provisions of the AEDPA do not apply to cases that were filed11

before the April 1996 effective date of that act.) Further, the

state court in Gray never ruled on the merits of Gray’s

contentions, so there was no state court decision in that case to

which we could have deferred. Gray , 6 F.3d at 267.

We therefore conclude that the district court in this case

erred in failing to afford the proper deference to the Louisiana

Supreme Court’s factual determinations and legal conclusion and in

granting Hongo’s habeas application.

Based on the foregoing we reverse the district court’s grant

of habeas relief to Hongo.

REVERSED.