IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-41043

Summary Calendar

EDUARDO CATARINO PALACIOS,

Petitioner - Appellant

v.

RICK THALER, 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. 5:06-CV-151

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Eduardo Catarino Palacios, Texas prisoner # 1156135, appeals the

dismissal of his application under 28 U.S.C. § 2254 challenging his conviction for

murder. A certificate of appealability was granted to review whether trial

counsel was ineffective for opening the door to testimony by Palacios’s

accomplice, Omar Escobedo, that Palacios attempted to kill an eye-witness to the

crime, Patricia Salazar. Palacios v. Thaler, No. 08-41043 (5th Cir. Sep. 11, 2009)

United States Court of Appeals

Fifth Circuit

F I L E D

June 24, 2010

Lyle W. Cayce

Clerk

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.

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(unpublished; single-judge order). Because the certified question was rejected

on the merits by the Texas Court of Criminal Appeals in Palacios’s state habeas

action, we must defer to the state court’s adjudication unless it was “contrary to”

or an “unreasonable application of” clearly established federal law as determined

by the Supreme Court. See § 2254(d). To find an unreasonable application of

federal law, this court must determine that the state court’s ruling was

objectively unreasonable and not simply erroneous or incorrect. Williams v.

Taylor, 529 U.S. 362, 411 (2000). We review the district court’s conclusions of

law de novo. Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001).

To demonstrate that he received ineffective assistance of counsel, Palacios

must show that counsel’s performance was deficient and that the deficiency

prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

A failure to establish either prong defeats the claim. Id. at 697. To demonstrate

prejudice, he “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. To meet this standard, he must show the error

undermines confidence in the reliability of the verdict. Id.

Assuming, arguendo, that counsel’s performance was deficient, Palacios

nevertheless fails to show a reasonable probability that the jury’s verdict was

affected by Escobedo’s testimony that Palacios attempted to kill Salazar.

Palacios asserts that the testimony affected the outcome of his trial because it

gave credibility to the State’s theory of the case, it suggested that he wanted to

cover up the murder, and it “effectively destroyed” his theory that Escobedo was

the murderer. According to Palacios, in the absence of the evidence concerning

Salazar, the weight of the evidence would have tipped in his favor. He

emphasizes testimony by a forensic analyst that residue from a firearm is more

likely to be found on the back of a shooter’s hand than his palm. He highlights

the analyst’s testimony that gunshot residue was detected on the back of

Escobedo’s hands but not on the back of Palacios’s hands. He notes the analyst’s

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finding that “Escobedo either discharged a firearm, handled a discharged

firearm, or was in close proximity to a discharged firearm.” Palacios also relies

upon the prosecutor’s repeated emphasis of Escobedo’s testimony concerning the

alleged attempt to kill Salazar.

The defense’s theory of the case was that Escobedo killed the victim and

was lying about Palacios to save himself. Counsel’s opening the door to

additional inculpatory testimony by Escobedo did not “destroy” that theory. The

jury credited Escobedo’s testimony despite his self-serving account of the events.

See Palacios v. State, No. 04-03-00200-CR, 2004 WL 2533239, at *3 (Tex. App.-

San Antonio Nov. 10, 2004). Even without Escobedo’s testimony about Salazar,

there was ample evidence to support a guilty verdict. Escobedo testified that he

saw Palacios shoot the victim twice and kill him. He testified that Palacios

fought with the victim inside of the house, shot the victim inside of the house,

followed the victim into the street, hit the victim on the head with the butt of his

gun, kicked the victim, then shot the victim again in the street as the victim

tried to get up from the ground. After his own gun jammed, Palacios took

Escobedo’s .380 caliber gun.

Escobedo testified that he assumed that Palacios took his gun to shoot the

victim. According to Escobedo, Palacios hit the victim again in the back of the

head with the butt of Escobedo’s gun, using enough force to break the gun.

Palacios and Escobedo heard sirens and ran from the scene. Escobedo testified

that, as they started to run away, he grabbed the two guns from Palacios. While

they were running, they realized that they were going to be apprehended, and

Palacios took his own gun back from Escobedo.

A police officer corroborated Escobedo’s account by testifying that he saw

two men (whom he later identified as Escobedo and Palacios) running a halfblock from the crime scene who appeared to be concealing something at their

waistlines and to be exchanging something that could have been two handguns.

Escobedo’s testimony also was corroborated by testimony from a crime lab

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analyst that eight particles of substances consistent with gunshot residue were

found on Palacios’s right hand, while only one particle was found on Escobedo’s

right hand.

In light of all of the evidence of Palacios’s guilt, the Texas Court of

Criminal Appeals did not unreasonably apply Strickland. See Strickland, 466

U.S. at 687, 694, 697; § 2254(d). The judgment of the district court is

AFFIRMED.

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