IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20366

Summary Calendar

CURTIS ALLEN KIRKLAND,

Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:15-CV-2649

Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Curtis Allen Kirkland, Texas prisoner # 01790491, filed a 28 U.S.C. 

§ 2254 application challenging his conviction and sentence for possession of 

methamphetamine with the intent to deliver. He argued that he received 

ineffective assistance of counsel during the guilt and penalty phases of his state 

trial. After the district court denied relief, we granted a certificate of 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 22, 2018

Lyle W. Cayce

Clerk

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appealability on Kirkland’s claims of penalty-phase ineffective assistance and 

appointed him counsel for the purpose of pursuing his appeal.

Relief under Section 2254 is appropriate when the underlying state court 

adjudication “(1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as determined by 

the Supreme Court of the United States” or “(2) resulted in a decision that was 

based on an unreasonable determination of the facts in light of the evidence 

presented in the State court proceeding.” 28 U.S.C. § 2254(d).

The thrust of Kirkland’s appeal is that ineffectiveness of counsel was 

acknowledged by the Texas Court of Criminal Appeals in his state habeas 

appeal, but that the court then erred in finding no prejudice. See Strickland v. 

Washington, 466 U.S. 668, 687–94 (1984). Specifically, he claims prejudice 

from his counsel’s failure to object to testimony about methamphetamine’s 

societal effects, a law enforcement officer being offered as an expert on 

methamphetamine, testimony about Kirkland’s ability to be rehabilitated, and 

testimony about the amount of methamphetamine found on Kirkland. He 

argues that another case from the Texas Court of Criminal Appeals in which 

relief was granted compels granting relief to him. See Ex Parte Lane, 303 

S.W.3d 702 (Tex. Crim. App. 2009). The state court in Lane held that the 

defendant had been prejudiced by his counsel’s errors during the penalty 

phase. Id. at 719–20. His attorney failed to object to a law enforcement

officer’s testimony about the addictive nature of methamphetamine, testimony 

about the societal dangers of the drug, and inflammatory statements about the 

amount of methamphetamine found on Lane. Id. at 719. According to 

Kirkland, “no reasonable jurist would compare the errors in Lane and Kirkland 

and conclude Kirkland did not get worse treatment.” This is because 

Kirkland’s lengthy criminal history makes prejudice clear because jurors will 

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“accept improper implications that [he] is in a class (methamphetamine users) 

more likely to commit future bad acts” and thus find him more deserving of a 

lengthier sentence. Despite the failure of Kirkland’s counsel to object, the 

Texas Court of Criminal Appeals found he had not shown prejudice, citing 

Kirkland’s lengthy criminal history and that the objectionable testimony was 

not egregious. 

Regardless of differences that might exist between the two state 

appellate court decisions, Kirkland must show that the ruling he had failed to 

show prejudice from his counsel’s errors “was contrary to, or an unreasonable 

application of, the standards, provided by the clearly established federal law.” 

Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003). The inquiry under 

AEDPA is “determining whether the state habeas court’s application of the law 

to the facts was reasonable.” Ward v. Dretke, 420 F.3d 479, 499 (5th Cir. 2005). 

“[I]n order to grant habeas relief from a state conviction following rejection of 

the petitioner’s state habeas application, we must conclude that the state

habeas court’s application of federal law was not only incorrect, but ‘objectively 

unreasonable.’” Id.

In this case, the state court, relying on the nature of the errors and 

Kirkland’s criminal history, concluded that Kirkland had not shown prejudice. 

Any inconsistencies, and we do not hold there are any, between Lane and this 

case are beside the point. In his habeas proceedings, Kirkland has not shown 

“that the state court’s ruling on the claim being presented in federal court [is] 

so lacking in justification that there was an error well understood and 

comprehended in existing law beyond any possibility for fairminded 

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). 

AFFIRMED.

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