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United States Court of

Appeals

Fifth Circuit

FILED

June 23, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

No. 05-50382

_________________________

ANDREW GARCIA,

Petitioner-Appellee,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellant.

__________________________________________________

Appeal from the Unites States District Court 

for the Western District of Texas

(No. 7:04-CR-23-3)

__________________________________________________

Before GARWOOD, HIGGINBOTHAM, and CLEMENT, Circuit Judges. 

EDITH BROWN CLEMENT, Circuit Judge. 

In this habeas corpus action, the district court granted the petitioner relief. For the reasons

that follow, we reverse. 

I. FACTS AND PROCEEDINGS

Andrew Garcia (“Garcia”) and his brother, Alejandro Garcia (“Alejandro”), entered the car

of a young woman while she was stopped at a traffic light in San Antonio, Texas. The Garcia

brotherstold the woman, at gun point, to drive to a secluded area and forced her to engage in various
1Testifying in narrative form, Alejandro contended that the victim had consented to

engage in the sexual acts with him. He also stated that the victim had allowed him to withdraw the

money and had purchased the merchandise willingly in exchange for marijuana. Alejandro denied the

presence of any firearm in the vehicle and claimed that Garcia forced the victim to perform similar

acts on Garcia because she had performed them on Alejandro. 

2

In addition, therewere separate verdictforms(also onseparate documents) asto each

defendant. 

3Garcia’s attorney argued in favor of including the accomplice-witness instruction. 

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sex acts with both Alejandro and Garcia. In addition, the Garcia brothers used the victim’s debit card

to withdraw funds from her account and forced her to purchase merchandise, which they kept.

Eventually, the Garcia brothers released the victim. 

Garcia and Alejandro, each represented by separate counsel, were charged with aggravated

sexual assault, aggravated robbery, and aggravated kidnapping. Both pleaded not guilty, and they

were prosecuted in a single trial. The victim testified as the prosecution’s primary witness. Each

brother also testified on his own behalf, with each implicating the other.1

Garcia essentially confirmed the victim’s version of events, except where her testimony

implicated his willingness to commit the acts. Garcia’s theory of defense was that, while he

committed the specific criminal acts alleged, he should not be convicted because he acted under

duress. In support of this defense, Garcia testified that Alejandro threatened to kill Garcia and that

“something would happen” to Garcia and his family if he did not cooperate with Alejandro. 

The jury was given two wholly-separate jury charges. Each charge was complete and selfcontained on separate documents, and each charge was identified as applicable to each respective

defendant.2 Over the objection of the prosecution and Alejandro’s counsel, the trial judge included

an accomplice-witness instruction in both Alejandro’s and Garcia’s jury charges.3 The accomplice-
4Alejandro’s conviction was overturned on direct appeal because of the inclusion of

the accomplice-witness instruction. See Garcia v. State, No. 04-99-897-CR (Tex. App.—San

Antonio Oct. 18, 2000). 

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witness instruction, given in Alejandro’s charge, described Garcia as an accomplice to Alejandro.

And Garcia’s jury charge, in a similar instruction, described Alejandro as an accomplice to Garcia.

Garcia’s jury charge also included instructions related to his duress defense. Garcia’s challenge is

limited to the accomplice-witness instruction included in Alejandro’s jury charge. 

The jury convicted both Garcia and Alejandro on all counts. Garcia was sentenced to

concurrent terms of sixty years for aggravated sexual assault, twenty years for aggravated robbery,

and thirty-five years for aggravated kidnapping. Alejandro was sentenced to concurrent terms of

seventy-five years for aggravated sexual assault, thirty-five years for aggravated robbery, and sixty

years for aggravated kidnapping. Both Garcia and Alejandro appealed their convictions.4

On direct appeal, Garcia raised only two issues, arguing that the trial court erred (1) by

omitting Garcia’s requested jury instruction on the issue of the voluntariness of his conduct and (2)

in restricting his cross-examination of the prosecution’s witnesses. The Texas court of appeals

affirmed Garcia’s conviction. See Garcia v. State, No. 04-99-832-CR (Tex. App.—San Antonio

Aug. 30, 2000). Garcia did not pursue any further direct review. 

Garcia filed a habeas petition in state court, alleging four grounds of error: (1) that his

conviction was obtained pursuant to a constitutionally prohibited jury instruction; (2) that the jury

instruction was harmful; (3) that he received ineffective assistance of counsel at trial; and (4) that he

received ineffective assistance of counsel on appeal . The state trial court recommended granting

habeas relief, but the Texas Court of Criminal Appeals disagreed and, without opinion, denied

Garcia’s petition. 
5

In addition to the appeal on the merits, the Director also appeals the district court’s

decision to equitably toll the statute of limitations. Because we deny the habeas petition, we do not

address the issue of tolling except to note that in this circuit an error of law, however reasonable it

might be, “‘is not an extraordinary circumstance such that equitable tolling is justified.’” United

States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002) (quoting Cousin v. Lensing, 310 F.3d 843, 849

(5th Cir. 2002)). 

6The district court granted the Director’s motion to stay judgment pending the

outcome of this appeal. 

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Garcia next filed a habeas petition in federal court. Garcia’s petition focused on three issues:

(1) that the inclusion of the accomplice-witness instructions in Alejandro’s jury charge violated the

Fourteenth Amendment; (2) that he received ineffective assistance of counsel at trial; and (3) that he

received ineffective assistance of counsel on appeal. The district court initially dismissed Garcia’s

petition as time-barred under 28 U.S.C. § 2244(d). On reconsideration, the district court equitably

tolled the one-year statute of limitations and addressed the petition’s merits.5 The district court

concluded that Garcia’s conviction had been obtained pursuant to constitutionally prohibited jury

instructions and that the state court’s denial of Garcia’s writ of habeas corpus was contrary to clearly

established federal law as established by the Supreme Court. As a result, the district court granted

relief by ordering Garcia’s convictions reversed and remanding to the state trial court for a new trial

within 120 days of the district court’s order. The Director of the Texas Department of Criminal

Justice (the “Director”), appeals.6

II. STANDARD OF REVIEW

“‘In a habeas corpus appeal, we review the district court’s findings of fact for clear error and

review its conclusions of law de novo, applying the same standard of review to the state court’s

decision as the district court.’” Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001) (quoting

Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998)). If the issue is a mixed question of law and
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fact, such as the assessment of harmless error, we review the district court’s determination de novo.

Robertson v. Cain, 324 F.3d 297, 301 (5th Cir. 2003) (citing Jones v. Cain, 227 F.3d 228, 230 (5th

Cir. 2000)). 

Garcia filed his habeas petition after the effective date of the Antiterrorism and Effective

Death Penalty Act (“AEDPA”). As a result, the petition is subject to the procedures and standards

imposed by AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Under AEDPA, “[a] federal

court’s collateralreview of a state-court decision must be consistent with the respect due state courts

in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Moreover, our circuit

precedent provides that “‘a federal habeas court is authorized by Section 2254(d) to review only a

state court’s‘decision,’ and not the written opinion explaining that decision.’” Pondexter v. Dretke,

346 F.3d 142, 148 (5th Cir. 2003) (quoting Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en

banc)). See also Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001) (“The statute compels

federal courts to review for reasonableness the state court’s ultimate decision, not every jot of its

reasoning.”). 

A. Findings of Fact

A state court’s factual findings are “presumed to be correct.” Hughes v. Dretke, 412 F.3d

582, 589 (citing 28 U.S.C. § 2254(e)(1)). Before a federal court, “a petitioner has the burden of

rebutting this presumption with clear and convincing evidence.” Id. This deference extends not only

to express findings of fact, but to the implicit findings of the state court. Summers v. Dretke, 431

F.3d 861, 876 (5th Cir. 2005); Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004). 

B. Conclusions of Law

Our review of a state court’s conclusions of law is also deferential. The Supreme Court has
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determined that § 2254(d)(1) “affords a petitioner two avenues, ‘contrary to’ and ‘unreasonable

application,’” by which to challenge a state court’slegal conclusions. Summers, 431 F.3d at 868–69

(discussing Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court’s conclusion of law is

“contrary to . . . clearly established Federal law, as determined by the Supreme Court” under two

conditions: 

(1) “the state court applies a rule that contradicts the governing law

set forth in [the Supreme Court’s] cases,” or (2) “the state court

confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme] Court and nevertheless arrives at a result

different from [Supreme Court] precedent.” 

Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002) (alteration in original) (quoting Williams, 529

U.S. at 405–06). 

With respect to the second avenue, “a state court decision is an unreasonable application of

clearly established Supreme Court precedent if the state court correctly identifiesthe governing legal

rule but applies it unreasonably to the facts of a particular prisoner’s case.” Summers, 431 F.3d at

869 (internalquotations omitted). Federal habeas courts must heed the Supreme Court’s explanation

that “‘unreasonable’ does not mean merely ‘incorrect;’” rather, “an application of clearly established

Supreme Court precedent must be incorrect and unreasonable to warrant federal habeas relief.” Id.

(quoting Foster, 293 F.3d at 776). “Only if a state court’s application of federal constitutional law

fits within this paradigm may this court grant relief.” Id. 

III. DISCUSSION

A. The accomplice-witness instruction 

Garcia contends that the trial court erroneously instructed the jury in violation of Sandstrom
7Garcia also cites Carella v. California, 491 U.S. 263 (1989), Francis v. Franklin,

471 U.S. 307 (1985), and Connecticut v. Johnson, 460 U.S. 73 (1983) (plurality), in support of his

claim. 

8We assumewithout deciding that Alejandro’sjurycharge canbe prejudicial to Garcia.

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v. Montana, 442 U.S. 510 (1979).7 The accomplice-witness instruction in Alejandro’s jury charge,

Garcia maintains, directed the jury to apply a mandatory conclusive presumption on an essential

element of Garcia’s charged crime.8 The instruction in Alejandro’s jury charge provided:

You are instructed that an accomplice witness, as the term is

hereinafter used, means anyperson connected with the crime charged,

as a party thereto, and includes allpersons who are connected with the

crime, as such parties, by unlawful act or omission on their part

transpiring either before or during the time of the commission of the

offense and whether or not they were present and participated in the

commission of the crime. 

. . . 

The witness, Andrew Garcia, is an accomplice, if an offense

was committed, and you cannot convict [Alejandro] upon [Garcia’s]

testimony unless you first believe that [Garcia’s] testimony istrue and

shows that [Alejandro] is guilty as charged, and then you cannot

convict [Alejandro] upon said testimony unless you further believe

that there is other testimony in the case, outside of the evidence of the

said Andrew Garcia tending to connect [Alejandro] with the offense

committed, if you find that an offense was committed, and the

corroboration is notsufficient ifit merely showsthe commission ofthe

offense, but it must tend to connect [Alejandro] with its commission,

and then from all of the evidence you must believe beyond a

reasonable doubt that [Alejandro] is guilty of the offense charged

against him. 

Because the instruction defined Garcia as an accomplice, the argument continues, the trial

judge negated the presumption of innocence and permitted the jury to convict Garcia without proof

of guilt beyond a reasonable doubt as to every element of his charged crime. The district court

agreed with Garcia and granted habeas relief. 
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On appeal, the Director does not contest that the jury charge violated Sandstrom. Rather, the

Director contends that a federal habeas court should review the trial court’s error for harmless error

and that the district court erred in granting habeas relief without considering whether the Sandstrom

error was harmless. We address each issue in turn. 

(1) Brecht harmless-error review is appropriate

The Supreme Court has recognized two categories of constitutional violations, “trial error”

and “structuraldefects.” See Arizona v. Fulminante, 499 U.S. 279, 307–08 (1991). The former class

is made up of those errors that “may be ‘quantitatively assessed in the context of other evidence

presented.’” Myers v. Johnson, 76 F.3d 1330, 1337 (5th Cir. 1996) (quoting Fulminante, 499 U.S.

at 308). Harmless error review is appropriate for the former class of errors but not the latter class.

Id. Because the error alleged by Garcia falls into the former class, the error is subject to harmless

error analysis. See Robertson, 324 F.3d at 304 n.3 (“A Sandstrom-type error has been held to be a

‘trial error’ to which the harmless error rule applies.”). 

Holding, as we do, that the complained-of error issubject to harmless error analysis does not

complete our inquiry. In Brecht v. Abramson, 507 U.S. 619, 634–38 (1993), the Supreme Court

declined to apply the harmless-beyond-a-reasonable-doubt standard from Chapman v.California, 386

U.S. 18, 24 (1967), on habeas review of a state-court conviction. Rather,“[r]ecognizing the

distinction between direct and collateral review,” the Court adopted the standard announced in

Kotteakos v. United States, 328 U.S. 750, 776 (1946). Brecht, 507 U.S. at 635, 638. Under this

Brecht harmless-error standard, the relevant question is whether the state court’s error “‘had

substantial and injurious effect or influence in determining the jury’s verdict.’” Id. at 637 (quoting

Kotteakos, 328 U.S. at 776). 
9Compare Gutierrez v. McGinnis, 389 F.3d 300, 306 (2d Cir. 2004) (declining to

apply Brecht “when a state court explicitly conducts harmless error review of a constitutional error

[because] a habeas court must evaluate whether the state unreasonably applied Chapman”), with

Webber v. Scott, 390 F.3d 1169, 1177 (10thCir. 2004) (applying Brecht when the state court did not

applytheChapman harmless-errorstandard), with Inthavong v. Lamarque, 420 F.3d 1055, 1059 (9th

Cir. 2005) (holding that a federal habeas court must perform both an AEDPA-based review of the

state court’s Chapman harmless-error analysis and a Brecht harmless-error review of the original

error as a precondition to granting habeas relief). 

10In the time since Robertson was decided, the Supreme Court has not addressed the

specific question of whether federal habeas courts are to apply Brecht after AEDPA’s enactment.

However, in Mitchell v. Esparza, the Supreme Court, on habeasreview, considered the state court’s

harmless-error review under AEDPA’sstandard of review: “We may not grant respondent’s habeas

petition, however, if the state court simply erred in concluding that the State’s errors were harmless;

rather, habeas relief is appropriate only if the [state court] applied harmless-error review in an

‘objectivelyunreasonable’manner.” 540 U.S. 12, 18 (2003) (per curiam) (citing Lockyer v. Andrade,

538 U.S. 63, 75–77 (2003)). The Second Circuit has read Mitchell as implicitly rejecting Brecht, at

least when the state court hasmade a harmless-error determination. Gutierrez v. McGinnis, 389 F.3d

300, 306 (2d Cir. 2004). But even if we read Mitchell as the Second Circuit does, our precedent in

Robertson remains unaffected because Robertson speaks directly to the situation where the state

court did not perform a harmless-error review. Nor does our adherence to Robertson signal a

rejection of the Ninth Circuit’s two-step harmless-error habeasreview; under that analysis, a finding

against the petitioner on either step precludes habeas relief. See Inthavong v. Lamarque, 420 F.3d

1055, 1059 (9th Cir. 2005). 

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Following the enactment of AEDPA, some courts questioned whether federal habeas courts

should continue to applythe Brecht harmless-errorstandard or whether the proper role wasto review

the state court’s application of the Chapman harmless-error standard under AEDPA.9In this

circuit—at least when the state court did not perform its own harmless-error review—we simply

apply the Brecht harmless-error analysis. Robertson, 324 F.3d at 306 (“We hold that AEDPA’s

restrictions on federal review of state habeas decisions do not alter Brecht’s mandate for harmless

error analysis by federal courts when state courts have failed to address the question of harmless

error.”).10 Cf. Penry v. Johnson, 532 U.S. 782, 795–96 (2001) (applying the Brecht harmless-error

analysisin a post-AEDPA habeas proceeding where the state court found no error and, therefore, did
11At oral argument, the Director suggested that state courts first should apply the

Brecht harmless-error analysis, which federal habeas courts would then review under AEDPA’s

deferential standard. We disagree. Brecht’s less-stringent standard of harmless-error review is

predicated on a federal habeas court’s respect for comity, finality, and federalism. Congress

addressed these same principles in enacting AEDPA. See Williams, 529 U.S. at 436 (“AEDPA’s

purpose [is] to further the principles of comity, finality, and federalism.”). Brecht’s existence does

not relieve a state court of its duty to apply Chapman’s harmless-error analysis where it is required

to do so under Supreme Court precedents.

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not conduct a harmless-error inquiry).11 And because here the state court did not perform a harmlesserror analysis, it is enough for our purposes to follow Robertson. 

(2) The Sandstrom error was harmless

The district court held that Garcia’s “Due Process rights were violated” because the

“instructions relieved the State of its burden of proving by evidence Petitioner’s guilt in the alleged

offense beyond a reasonable doubt.” In reaching this conclusion, the district court noted that the state

trial habeas court recommended granting relief. In addition, after pointing out that Alejandro’s

conviction had been overturned on direct review because of the erroneous inclusion of the

accomplice-witness instruction in his jury charge, the district court stated “that [Garcia] should be

given the exact same treatment as his brother.” But the district court never assessed whether the

Sandstorm error was harmless on the facts of Garcia’s conviction. 

The Supreme Court has had occasion to consider the application of harmless-error review to

Sandstrom error. See Connecticut v. Johnson, 460 U.S. 73 (1983) (plurality). The Johnson plurality

makes clear that, if a defendant concedes the issue on which the erroneous instruction wrongfully

instructs the jury, Sandstrom error may be harmless. See Johnson, 460 U.S. at 87. Even the

narrowest view, that of the Johnson plurality, described an example in which Sandstrom error would

be harmless: “In presenting a defense such as alibi, insanity, or self-defense, a defendant may in some
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cases admit that the act alleged by the prosecution was intentional, thereby sufficiently reducing the

likelihood that the jury applied the erroneous instruction as to permit the appellate court to consider

the error harmless.” Id.

In the Director’s view, Garcia’s case parallels Johnson’s example because Garcia’s entire

defense was that, while he committed the specific acts alleged, he did so under duress. As such, the

Director contends, the Sandstrom error was harmless. The Director also points out that the duress

instructions, which were included in each count’s instructions for Garcia, ameliorate any persistant

concern that the improper accomplice-witnessinstruction had a substantial and injurious effect on the

jury’s verdict. We agree. 

At worst, the jury was instructed that Garcia was “connected with the crime charged, as a

party thereto, . . . by unlawful act or omission.” But Garcia admitted as much in establishing his own

defense. By admitting his participation in the criminal acts, Garcia rendered the accomplice-witness

instruction error harmless. Moreover, the accomplice-witness instruction did not affect Garcia’s

duress defense adversely. 

The additional instruction given to the jury regarding Garcia’s duress defense eliminates any

residual doubt as to the potential harm from the accomplice-witness instruction. The jury charge

addressed the nature of Garcia’s defense: 

A defense set up by [Garcia] in this case is what is known as

duress. It is an affirmative defense to prosecution that the actor

engaged in the proscribed conduct because he was compelled to do so

by threat of imminent death or serious bodily injury to himself or

another. 

Compulsion within the meaning of this section exists only if

the force or threat of force would render a person of reasonable

firmness incapable of resisting the pressure. . . . 
12In the alternative, we hold that the state habeas court’s rejection of Garcia’s postconviction challenge was not contraryto or an unreasonable application ofSupremeCourt precedent.

Given the similarities between the record before us and the example in Johnson, it would not be

unreasonable for the state habeas court to conclude that the Sandstrom error was harmless beyond

a reasonable doubt. 

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Appearing in three separate sections of Garcia’s jury charge—one for each count against him—was

an instruction on the application of Garcia’s duress defense:

[I]f you find from the evidence . . . that [Garcia] did commit

the offense . . . as alleged in the indictment and hereinbefore defined

in this charge, but you further find . . . that Alejandro Garcia did hold

a firearm to the head of Andrew Garcia while threatening the said

Andrew Garcia to commit the offense . . . and that the threats of

Alejandro Garcia were such threats of force as would render a person

of reasonable firmness incapable of resisting the pressure, and that

[Garcia] was in fear of imminent loss of life or serious bodily injury at

the hands of Alejandro Garcia if he did not participate therein, then

you will acquit [Garcia] and say by your verdict “not guilty.” 

Viewing the jury instructions as a whole, as we must, see United States v. Young, 282 F.3d

349, 353 (5th Cir. 2002), the resolution of the harmless error inquiry is clear. In error, the trial court

instructed the jury that Garcia had performed the acts alleged. But the trial court correctly instructed

the jury that it could not convict Garcia—even if he had engaged in the proscribed conduct—if the

jury found he committed the acts under duress. The initial error was rendered harmless by the nature

of Garcia’s duress defense. And the duress instructions properly stated Garcia’s defense. Garcia’s

defense, which he reduced to the single question of duress, was rejected by the jury. Accordingly,

we hold that the initial Sandstrom error did not have a “‘substantial and injurious effect or influence

in determining the jury’s verdict.’”12 Brecht, 507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776).

See also Harris v. Warden, La. State Penitentiary, 152 F.3d 430, 439–40 (5th Cir. 1998) (holding,

in a pre-AEDPA case, erroneous jury instructions harmless under Brecht because the evidence and
13The district court did not grant habeas relief based on the Strickland claim.

Nevertheless, the district court determined that Garcia received ineffective assistance of counsel in

relation to another issue below. 

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defense presented related to an issue unaffected by the error). 

B. Ineffective assistance of counsel 

In addition to the Sandstrom error claim, Garcia also asserted that he received ineffective

assistance of counsel both at trial and on appeal under Strickland v. Washington, 466 U.S. 668

(1984).13 Garcia contends that counsel rendered constitutionally ineffective assistance (1) at trial by

arguing in favor of the erroneous accomplice-witness instruction and (2) on appeal by failing to raise

the Sandstrom error. 

These same Strickland claims were asserted in Garcia’s state habeas petition and summarily

rejected by the state habeas court. And, though the state habeas court denied relief without comment,

under 28 U.S.C. § 2254(d), we review only the state court’s ultimate decision. See Neal, 286 F.3d

at 246. Our task then is to determine whether the state habeas court’s rejection of Garcia’s

Strickland claim is contrary to or an unreasonable application of Supreme Court precedent. 

Before the state habeas court, Garcia was required to show (1) “that counsel’s performance

was deficient” and (2) “that the deficient performance prejudiced the defense.” Strickland, 466 U.S.

at 687. To substantiate the deficient performance claim, Garcia was required to show that counsel’s

actions “fell below an objective standard of reasonableness.” Id. at 688. And to establish that

counsel’s deficient performance prejudiced his defense, Garcia had to “show ‘that counsel’s errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Lockhart

v. Fretwell, 506 U.S. 364, 369 (1993) (quoting Strickland, 466 U.S. at 687). 

Our AEDPA review of the state habeas court’s rejection of these claims is simplified by our
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prior determination that the Sandstrom error was harmless with respect to Garcia. The state habeas

court’s rejection of Garcia’s Strickland claim was not unreasonable under Strickland because the

allegedlydeficient performance of counsel at trialproduced no harmto Garcia’s cause. See Gochicoa

v. Johnson, 238 F.3d 278, 286 (5thCir. 2000) (finding no Strickland prejudice where counsel’s error

was harmless); Mayabb v. Johnson, 168 F.3d 863, 869 (5th Cir. 1999) (finding no Strickland

prejudice where the argued-for “jurycharge did not have a substantial and injurious effect or influence

in determining the jury’s verdict”); Harris, 152 F.3d at 440 (finding no Strickland prejudice based

on the court’s earlier conclusion that the erroneous jury instructions were harmless under Brecht).

Nor is counsel’s failure to raise the Sandstrom error on appeal constitutionally deficient: “When we

do not find prejudice from the trial error, by extension, we cannot find prejudice from an appellate

error predicated on the same issue.” Mayabb v, 168 F.3d at 869 (citing Ricalday v. Procunier, 736

F.2d 203, 208 (5th Cir. 1984)). 

Moreover, contrasting the dissimilar results between Garcia and Alejandro does not establish

prejudice. To the contrary, the disparity supports our analysis because Garcia, unlike Alejandro,

conceded that he committed criminal acts. By contrast, Alejandro argued that the victim was a

willing participant. It comes, then, as no surprise that the accomplice-witness instruction could be

harmful—even reversible—error asto Alejandro but not asto Garcia. Accordingly, we hold that the

state habeas court’s rejection of Garcia’s Strickland claim was neither contrary to nor an

unreasonable application of Supreme Court precedent. 

IV. CONCLUSION

We REVERSE the district court’s grant of habeas relief and RENDER judgment in favor

of the Director.