*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opinion should not be published and is not precedent except under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. 97-50802

Summary Calendar

 

CESAR QUINTANILLA,

Petitioner-Appellant,

versus

GARY JOHNSON,

Respondent-Appellee.

 

Appeal from the United States District Court

for the Western District of Texas

USDC No. A-96-CV-490

 

September 10, 1998

Before GARWOOD, DeMOSS and PARKER, Circuit Judges.*

PER CURIAM:

Cesar Quintanilla appeals the denial of his petition for a

writ of habeas corpus. He was convicted of aggravated sexual

assault by a jury and received the maximum sentence of ninety-nine

years of imprisonment. Quintanilla alleges that he was denied

effective assistance of counsel during the punishment stage of his

Texas trial. In particular, he alleges ineffective assistance
2

based on his counsel’s failure to obtain a jury charge allowing him

to be sentenced to probation, failure to call any character

witnesses on his behalf, and failure to provide an effective

closing argument. Quintanilla also challenges the denial of his

requests for an evidentiary hearing on these claims and contends

that if such a hearing is foreclosed by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), the Act is

unconstitutional.

We have reviewed the record and the briefs of the parties and

affirm substantially for the reasons given by the district court.

See Quintanilla v. Johnson, A-96-CV-490 (W.D. Tex. Aug. 21, 1997).

Quintanilla has failed to meet his burden of establishing

ineffective assistance of counsel——particularly the “prejudice”

prong thereof——even under the more lenient pre-AEDPA standards. See

Strickland v. Washington, 466 U.S. 668, 687 (1984); Nobles v.

Johnson, 127 F.3d 409, 416 (5th Cir. 1997), cert. denied, 1998 WL

86177 (U.S. May 26, 1998) (No. 97-8016). The failure to hold an

evidentiary hearing on his claims was not a violation of due

process because there was no factual dispute. Even accepting

Quintanilla’s factual claims as true, he is not entitled to habeas

corpus relief. See Amos v. Scott, 61 F.3d 333, 348 (5th Cir.

1995).

Quintanilla argues in his brief that “this offense . . .

reflected a long time relationship between petitioner and the

complainant . . . the conduct underlying this ‘aggravated sexual

assault,’ was not based upon a charge of violent forcible ‘rape,’
3

but rather, upon the theory that the complainant was underage at

the time of the sexual contact, thus subjecting Petitioner to

liability for this offense.” This is wholly false. The

indictment, jury instructions, and trial were solely on the basis

of forcible rape by placing the victim in fear that serious bodily

harm would be imminently inflicted. The victim was twenty-one

years old at the time of the offense, and it was never alleged

that she was “underage.” We agree with the Texas appellate court

that “the evidence is sufficient to support the finding that

appellant compelled the complainant to submit to an act of sexual

intercourse by means of force, threats, and violence” and “that

appellant’s acts and words placed the victim in fear of serious

bodily injury or death, and that this fear was reasonable in light

of appellant’s conduct.” While Quintanilla testified at trial that

he had had wholly consensual sexual intercourse with the victim on

numerous occasions commencing about six months before the date of

the alleged offense, and that he never at any time used force or

threats on her and that she was the sexual aggressor, the victim

denied ever having any sexual intercourse with Quintanilla——or

anyone else——except on the occasion that he forcibly raped her. She

did testify that on several occasions some six to eight years

previously when she was thirteen and fifteen——and he was twenty-five

or twenty-seven——he had attempted to fondle her breasts and private

parts, all against her will and despite her attempts to push him

away. The jury also heard the testimony of, among others,

Quintanilla’s wife——the victim’s older sister——who was a prosecution
4

witness, and Quintanilla’s nephew, a defense witness. The

conflicts in the evidence were obviously resolved by the jury

against Quintanilla, a resolution amply supported by the record.

The brief, general, and conclusory unsworn letters from

friends of Quintanilla, filed with the state habeas, which

Quintanilla points to as showing what “character” evidence could

and should have been presented at sentencing, are wholly

unavailing. These offer no specifics and only conclusory

statements such as “he is a good person, very respectful, and a

good friend”; “he is a good person”; “he is a very responsible

person”; and “he, always, proved me to be a honorable, kind and

responsible man.” There is no reasonable probability that the

omission of such evidence at the punishment hearing had any

materially adverse effect on the sentencing verdict. So also as to

the complaints respecting the omission to charge on probation as a

possible penalty and the brevity of the punishment argument.

It is not necessary to reach Quintanilla’s constitutional

challenge to the AEDPA, because his sentence may be upheld even

under the pre-AEDPA standards. See Maher v. Gagne, 448 U.S. 122,

133 (1980) (recognizing the judicial policy of avoiding the

unnecessary resolution of constitutional issues).

AFFIRMED