* Pursuant to 5 TH C IR

. R. 47.5, the C o urt has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 98-50186

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BENJAMIN DAVIDSON, JR.,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

___________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(A-94-CV-634)

___________________________________________________

April 13, 1999

Before GARWOOD, DAVIS and DeMOSS, Circuit Judges. *

DAVIS, Circuit Judge:

In November 1988, Benjamin Davidson (“Davidson”) was convicted by a jury of the second

degree felony of robbery and was sentenced to seventy-five years of confinement (enhanced by prior

convictions). Davidson seeks federal habeas relief under 28 U.S.C. § 2254 contending that he was

denied effective assistance of counsel. The district court denied relief. We affirm.

I.

At trial, the clerk of a Circle K convenience store identified Davidson as one of two men who

had stolen 37 cartons of cigarettes at his store on August 11, 1988. According to the clerk, Davidson

and a male companion entered the store together carrying a large bag. Davidson’s companion tried

to open the cigarette case, but could not open it . Davidson opened the case and both men began

loading cartons of cigarettes into the garbage bag. The clerk dialed 911, jumped over the counter2

and tried to grab the bag. Davidson’s wallet fell on the floor and the clerk tried to pick up the wallet

to find some identification of Davidson. Davidson hit the clerk with his arm. Davidson’s companion

ran out of the st o re. Davidso n left the store and the clerk followed him. Another physical

confrontation took place outside the store when Davidson pushed the clerk into a wall. Davidson

then ran to his car and drove away. The clerk saw two men in the car as it drove away. The clerk

then took down the license plate number of the car and called the police. Davidso n was arrested

shortly thereafter.

Attorney Tom Pritchard (“Pritchard”) was appointed to defend Davidson. Pritchard met with

Davidson only once before the arraignment and trial. On November 28, 1988 prison officials

informed Davidson that he was going to court for his robbery charge. Davidson requested his “free

world” clothes before going to court and became irate with Pritchard and jail o fficials when he was

told that he did not need t hem. When the trial judge was informed of the dispute, he appointed

Patrick Ganne (“Ganne”) to replace Pritchard as Davidson’s counsel. The trial court was aware that

Ganne knew Davidson and that Ganne had successfully represented Davidson in the past. Davidson

was happy to have Ganne as his attorney.

Ganne visited Davidson in jail on November 28 th and assured Davidson that he did not need

street clothes for an arraignment. Davidson explained to Ganne his version of his visit to the Circle

K store at the time he was charged with the robbery. That same day, Davidson pled not guilty to the

robbery charge. The trial was scheduled to begin that afternoon. Ganne filed discovery motions that

afternoon and the prosecutor allowed Ganne to review his entire investigative file. The prosecutor

gave no notice that he would introduce extraneous offenses as part of the State’s case.

Jury selection began on the afternoon of November 28 th

. Ganne and Davidson had decided

that Davidson would testify that he was indeed in the Circle K store as a customer, but that the store

clerk erroneously associated him with another person who attempted to steal cigarettes. During voir

dire, Ganne told potential jurors that they would hear Davidson testify. To soften the effect of the

State’s anticipated cross examination, Ganne also told jurors that Davidson was a convicted felon.

At trial, Ganne cross-examined the store clerk and was able to show several inconsistencies3

between the clerk’s trial testimony and his prio r swo rn statements. Ganne raised issues regarding

which man was putting the cigarette cartons in the bag, where the clerk saw the wallet, and whether

or not the two men drove off together. In addition, Ganne showed that the clerk’s testimony was not

supported by physical evidence. The clerk Stated that Davidson had lifted the plexiglass cover of the

cigarette case where a number of clear fingerprints were found. However, a police fingerprint expert

testified that Davidson’s prints were not found on the cigarette case.

After Ganne’s cros s examination of the store clerk, the prosecution sought to introduce

extraneous offense evidence that Davidson had stolen cigarettes from the same clerk and at the same

store about two weeks before the August 11 th incident. The prosecution apparently discovered these

facts on the day of trial when they spoke to the clerk in preparation for his testimony. The prosecutor

explained that the witness had moved to Colorado shortly after Davidson was arrested and returned

to Texas the day of trial. The trial court did not permit the State to offer this evidence, but indicated

that if the defense introduced evidence that Davidson entered the store as a customer and without the

intent to steal, it would permit the State to offer this evidence. In light of this development, Ganne

decided that Davidson should not testify and immediately after the State rested its case, the defense

also rested. The State then moved to reopen it s case t o present evidence of the prior Circle K

shoplifting incident along with a conviction for shoplifting in another county. Davidson had pled

guilty to this offense about two weeks before the August 11 th incident. The trial court denied the

S tate’s motion to reopen its case. The court then charged the jury and both sides present ed t heir

closing arguments.

The jury found Davidson guilty of robbery and recommended a seventy-five year sentence.

The conviction was affirmed on direct appeal and the State court denied habeas relief.

II.

A.

A claim for ineffective assistance of counsel is reviewed using the two-pronged test set forth

in Strickland v. Washington

, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). Counsel i s

presumed to have rendered a reasonable performance. S trickland

, 466 U.S. at 690, see also Teague4

v. Scott , 60 F.3d 1167, 1170 (5 th Cir.1995). To obtain relief, the petitioner must establish that his

counsel’s services were deficient and that as a result he suffered prejudice. To show that counsel’s

performa nce was deficient requires showing that counsel was not functioning as the ‘counsel’

guaranteed by the Sixth Amendment.” S trickland

, 466 U.S. at 686. In setting forth this prong, the

Strickland Court stated “[J]udicial scrutiny of counsel’s performance must be highly deferential

. .

. A fair assessment of attorney performance requires that every effort be made to eliminate t he

distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and

to eva luat e the conduct from counsel’s perspective at the time.” S trickland

, 466 U.S. 668, 689;

Westley v. Johnson, 8 3 F.3d 714, 719 (5th Cir.1996). To demonstrate prejudice, petitioner must

show “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” See Westley v. Johnson

, 83 F.3d at 719, quoting Strickland , 466 U.S. 668, 689.

Unless the defendant makes both showings, it cannot be said that “the conviction . . .resulted from

a breakdown in the adversary process that renders the result unreliable.” S trickland

, 466 U.S. 668,

689. It is not necessary to address both prongs of the test if the petitioner makes an insufficient

showing on one. Id.

Because both prongs of the Strickland test present mixed questions of fact and law, these

questions are reviewed de novo

. Jones v. Jones , 163 F.3d 285, 299 (5 t h Cir.1998). The underlying

factual conclusions are reviewed for clear error. Id

.

B.

Davidson allege s several general instances of ineffective assistance of counsel. The only

allegation which merits discussi o n is Davidson’s particularized complaint that Ganne rendered

ineffective assistance of counsel when he disclosed Davidson’s prior convictions during voir dire and

then did not call Davidson to testify in his own defense.

Ganne had successfully represent ed Davidso n in two previous trials before the same trial

court. Ganne testified at the evidentiary hearing that he used the same trial strategy in the robbery

trial that he had used in the earlie r t rials; he advised potential jurors of the Davidson’s previous

criminal convictions to reduce the sting of cross examination. He then called Davidson to testify and2 Officer Mungia, who wrote the police report for the incident, testified that the store clerk’s

statements in court were not consistent with his report. Officer Acosta, a fingerprint expert, testified

that Davidson’s fingerprints were not found on the cigarette case.

5 explain his version of the incident out of which the charges arose. In this case, however, after the

State rested, Ganne decided that Davidson should not testify because of the unexpected evidence that

came to light during the trial. Ganne testified at the evidentiary hearing that if he had put Davidson

on the stand, the prosecution would have been permitted to present the store clerk’s testimony about

Davidson’s earlier theft of cigarettes. Ganne also concluded that his cross examination of the store

clerk had gone well and that the police officers’ testimony undermined the store clerk’s testimony to

some extent. 2

Davidson argues that if Ganne had investigated his case properly, Ganne would not have been

surprised by the two extraneous offenses. We disagree. The district attorney’s file did not disclose

the extraneous offenses. The store clerk lived in Colorado and did not return to Texas until the day

of trial so that Ganne was unable to interview the clerk before trial. Davidson did not disclose this

conviction to Ganne and must shoulder some responsibility for t his surprise development. Had

Davidson been more candid with Ganne on the morning Davidson was arraigned, Ganne may have

chosen a different trial strategy.

The district court found that Ganne’s decision to reveal Davidson’s prior convictions during

voir dire and his subsequent decision to not have Davidson testify were not unreasonable strategic

decisions. The district court found that Ganne had properly weighed the benefits and risks of having

Davidson testify and that Ganne had made a reasonable decision.

We agree with the district court’s conclusions. According Ganne the deference directed by

Strickland , we find that Ganne’s strategic trial decisions were reasonable. “We decline to evaluate

the propriety of

t rial co unsel’s actions with the aid of the refractive correction of hindsight.”

Hollenbeck v. Estelle, 672 F.2d 451 (5 th Cir.1982) quoting, Jones v. Estelle

, 632 F.2d 490, 492 (5 th

Cir.1980), cert. denied

, 451 U.S. 916, 101 S.Ct. 1992, 68 L.Ed.2d 307 (1981). The judgment of the

district court is therefore affirmed.

AFFIRMED.6