* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### December 20, 2005

Clerk of Court UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

TENG THAO,

Petitioner-Appellant,

v. EMMALEE CONOVER, Warden, Winfield Correctional Facility; ATTORNEY GENERAL OF THE STATE OF KANSAS,

Respondents-Appellees. No. 04-3493 (D.C. No. 01-CV-3391-SAC)

(D. Kan.)

ORDER AND JUDGMENT *

Before KELLY, McKAY , and McCONNELL , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Petitioner Teng Thao, a Kansas state prisoner, appe als the district court’s denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Thao contends that he received constitutio nally ineffective assistance of trial counsel based upon his attorney’s decision no t to call certain witnesses in his defense. We exercise jurisdiction under 28 U.S.C. § 2253 and affirm the denial of habeas relief. Background Thao was convicted of aggravated battery in a Kansa s state court. The district court’s forty-eight page order contains an extremely detailed description of the events surrounding the assault, the evidence presented at trial, and the evidence relating to Thao’s ineffective assistance of counsel claim. Thus, we only summarize the most relevant facts here. At a large New Year’s Eve party, a group of approxi mately twelve people knocked the facility’s caretaker, Brian Williamson, to the ground and punched and kicked him in the body and face, causing severe injuries. Williamson identified Thao as one of the attackers to the poli ce shortly after the assault. Thao gave his court-appointed defense counsel, Mr. Switz, a list of fifteen witnesses who he said would testify he was in the m iddle of the fight trying to help Williamson and had not attacked him. Switz di d not call any of these witnesses at trial. Instead, Switz’s defense chall enged the reliability of-3-

Williamson’s identification of Thao. Switz noted t hat Thao’s clothing did not match Williamson’s description of any of his attack ers, that no witness other than Williamson placed Thao near the scene of the attack , and that Williamson had wrongly identified three other persons as attackers

. After his conviction, Thao’s direct appeal was dism issed for lack of jurisdiction. He filed an application for state po st-conviction relief under Kan. Stat. Ann. § 60-1507, claiming ineffective assistan ce of counsel because Switz did not present testimony from the witnesses Thao c laimed would exonerate him. The state court conducted an evidentiary hearing atwhich Thao’s witnesses stated they would have testified at trial that Thao was no t one of the attackers, but rather was trying to protect and help Williamson. Switz testified at the post-conviction hearing thathe met four or five of these potential witnesses at his office, met many o thers at Thao’s preliminary hearing, and received an oral report from a co-defe ndant’s investigator who had contacted most of the witnesses. He testified thatfunds were not available to hire his own investigator, but he had Thao’s permission to rely on the co-defendant’s investigator’s report. Switz believed, based on th e information from these meetings and the investigator’s report, that the pr oposed testimony from these witnesses would have been harmful to Thao’s defense for two reasons. First, their testimony placed Thao at the scene of the att ack, undercutting the-4-

misidentification defense. Second, there were prob lems with the witnesses’ credibility and demeanor. Switz noted these witnesses, many of whom were frie nds of Thao’s, were able to testify only that Thao was not one of the attackers, but could not describe or identify any of the attackers, had not given statements to the police, and often gave confusing statements about where they were dur ing the attack. Switz stated that the witnesses he spoke to at his office were f lippant, showed little concern for the seriousness of the attack, and did not seem to be in a position to witness what occurred. Most of the witnesses stated they h ad not seen anything, and some even told Switz the victim must have hurt himself. Switz did call one of the witnesses at Thao’s preliminary hearing, but that w itness came across as confused and testified he was inside a building during the attack, even though it occurred outside. Switz testified that he met with Thao on at least f our occasions at his office, for an hour to ninety minutes each time, an d also discussed the case with him during court hearings. He testified that he di scussed the proposed misidentification defense at length with Thao on nu merous occasions, and that Thao agreed to this trial strategy. Thao also agre ed with the strategic decision not to testify at trial.-5-

The state district court denied Thao’s post-convict ion petition. It found that Switz made a reasonable effort to contact the proposed witnesses and learn about their potential testimony through the investi gator’s report and by meeting some at his office and others at the preliminary he aring. It further found that Thao gave Switz permission to rely on the investigator’s report. The state court ruled that Switz’s trial preparation was not consti tutionally deficient. The Kansas Court of Appeals affirmed the denial of post-conviction relief, and the Kansas Supreme Court denied review. Thao t hen filed his § 2254 petition based on his ineffective assistance of counsel clai m. The district court denied the habeas petition, but granted him a certificate of appealability. See 28 U.S.C. § 2253(c)(1). Applicable Legal Standards Our review in this case is governed by the Anti-Ter rorism and Effective Death Penalty Act (AEDPA). See Turrentine v. Mullin , 390 F.3d 1181, 1188-89 (10th Cir. 2004), cert. denied, 125 S.Ct. 2544 (2005). Under AEDPA, where, as here, the state court has adjudicated the petitione r’s claims on the merits, this court may only grant a writ of habeas corpus if the state court’s decision (1) “was contrary to, or involved an unreasonable applicatio n of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “was based on an unreasonable determination of the facts in light of the-6-

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). “In conducting this inquiry, we presume the factual findings of the state trial and appellate courts are correct, and we place on the p etitioner the burden of rebutting this presumption by clear and convincing evidence.” Turrentine , 390 F.3d at 1188; 28 U.S.C. § 2254(e)(1). To succeed on an ineffective assistance claim, Thao must establish both that Switz’s representation was deficient and that this deficient performance prejudiced his defense. See Strickland v. Washington , 466 U.S. 668, 687 (1984). In evaluating performance, the question is whether “counsel’s representation fell below an objective standard of reasonableness.” Id . at 688. In evaluating counsel’s performance, our review must be “highly d eferential” and “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the de fendant must overcome the presumption that, under the circumstances, the chal lenged action might be considered sound trial strategy.” Id . at 689 (quotation omitted). Moreover, “strategic choices made after thorough investigatio n of law and facts relevant to plausible options are virtually unchallengeable.” Id . at 690. The district court denied habeas relief in this cas e because Thao failed to demonstrate that the Kansas court’s decision was co ntrary to, or involved an objectively unreasonable application of Strickland, or that its decision was based-7-

on an unreasonable determination of the facts in li ght of the evidence presented at the state court proceeding. See Wiggins v. Smith , 539 U.S. 510, 520-21 (2003) (applying Strickland

under AEDPA’s deferential review). We agree with the district court’s conclusion.

Analysis On appeal, Thao contends that the Kansas court’s fa ctual finding that Switz conducted a reasonable investigation was based on a n unreasonable determination of the facts. Arguing that there was not a reasona ble investigation, he further contends that the Kansas Court of Appeals unreasonably applied Strickland when it concluded Switz’s decision not to call the reque sted witnesses was a strategic or tactical one. Strickland

provides the relevant legal framework: [S]trategic choices made after thorough investigati on of law and facts relevant to plausible options are virtually u nchallengeable; and strategic choices made after less than complete inv estigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigation s or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.
466 U.S. at 690-91.-8-

We are satisfied from our review of the record thatthe state court’s finding that Switz conducted a reasonable and adequate inve stigation was not an unreasonable determination of the facts. The state court found that Switz did make an effort to contact the proposed witnesses an d discover their proposed testimony, by meeting some in his office, many othe rs at the preliminary hearing, and through the investigator’s report. This findin g is supported by the evidence presented at the post-conviction hearing and we agr ee that Switz did a sufficient investigation to learn about the witnesses’ potenti al testimony, as well as their demeanor, credibility and utility. Thao contends there was no factual basis in the rec ord for the state court to conclude Switz conducted a reasonable investigation because there are no notes from his meetings with the witnesses, no written re port from the investigator, and three of the witnesses testified neither Switz nor the investigator contacted them. The state court conducted an evidentiary hearing, h owever, at which Thao, his witnesses, and Switz testified, and the court found Switz’s testimony credible. Thao has failed to rebut the presumption that this finding is correct. See 28 U.S.C. § 2254(e)(1). Thao further contends that, even if Switz attempted to contact the witnesses, it was unreasonable for the Kansas court s to find his limited investigation of these witnesses constitutionally s ufficient. This sort of tactical-9-

decision to limit the scope of pre-trial investigat ion merits “a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691; Wiggins, 539 U.S. at 525 (noting that it may be reasonable for c ounsel to curtail his investigation if available information indicates th at further inquiries would be fruitless). Here, the record supports the conclus ion that Switz’s investigation was reasonable because the available information in dicated that the proposed testimony would undercut the misidentification defe nse and that the witnesses’ demeanor and credibility might further hurt Thao’s defense. See Brecheen v. Reynolds , 41 F.3d 1343, 1367 (10th Cir. 1994) (finding coun sel’s decision to limit investigation reasonable in light of concerns aboutwitness credibility). Accordingly, it was not unreasonable for the state court to conclude that Switz performed competently in choosing not to conduct fu rther investigation into the proposed witnesses. Thao contends it was constitutionally unreasonable for Switz to make the strategic decision to ignore the witnesses’ testimo ny that Thao was only trying to help the victim, and instead argue that Williamson was mistaken in his identification of Thao. We disagree. Switz conclu ded, based upon a reasonable investigation, that there were sufficient problems with the witnesses’ credibility and demeanor that their testimony would not be bene ficial to Thao’s defense. We find ample support for the state court’s finding th at these witnesses’ testimony-10-

was equivocal and that they were only able to testi fy that Thao was not involved in the attack. Switz’s decision to focus on the we aknesses of Williamson’s identification was, under the circumstances, a reas onable tactical decision. “We cannot say that this strategic decision fell outsid e ‘the wide range of reasonable professional assistance,’” or that counsel was cons titutionally ineffective in choosing not to call Thao’s proposed witnesses. See Parker v. Scott , 394 F.3d 1302, 1323 (10th Cir. 2005) (reviewing strategic de cisions not to call certain witnesses, quoting Strickland, 466 U.S. at 689); Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (“For counsel’s actions to ri se to the level of constitutional ineffectiveness, his strategic decisions must have been completely unreasonable, not merely wrong, so that they bear no relationship to a possible defense strategy.” (quotation omitted)). In summary, we conclude that Switz’s performance di d not fall “below an objective standard of reasonableness,” measured “un der prevailing professional
norms.” Strickland, 466 U.S. at 688. Having determined that Thao’s c laim fails the first prong of the Strickland standard, we need not address whether he was prejudiced by counsel’s performance. See Romano v. Gibson , 239 F.3d 1156, 1181 (10th Cir. 2001).-11-

The judgment of the district court is AFFIRMED for substantially the reasons stated in the district court’s Memorandum and Order dated November 3,
2004.

Entered for the Court

Michael W. McConnell Circuit Judge