- 1 - 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, Peti tioner-Appellee,
versus NATHA NIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellant.

__________________________________________________ Appeal from the Unites States District Court fo r 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 f ollo w, we reverse. I. FACTS AND PROCEEDINGS Andrew Garcia (“Garcia”) and his brother, Alejandro Garcia (“Alejandro”), entered the car of a yo ung woman while she was stopped at a traf fic light in San Ant onio, Texas. The Garcia brothers told the woman, at gun poi nt , to dri ve to a secluded area and fo rced her to engage in various1 Testi fying in narrative fo rm, Alejandro contended that the victim had consented to

engage in the sexual acts with him. He also stated that the vict im had allo wed him to wit hdraw the mo ney and had purchased the merchandise willingly in exchange fo r marijuana. Alejandro denied the presence of any fir earm in the vehicle and claimed that Garcia forced the vict im to perform similar acts on Garcia because she had performed them on Alejandro.

2 In addition, there were separate verdict fo rms (also on separate documents) as to each defendant.
3 Garcia’s attorney argued in favor of including the accomplice-witness instruction. - 2 - sex acts wit h both Alejandro and Garcia. In addition, the Garcia brothers used the victim’s debit card to wit hdraw 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 wit h aggravated sexual assault, aggravated robbery, and aggravated kidnapping. Both pleaded not guilty, and they
were prosecuted in a single tri al. The victim testi fied as the prosecution’s primary witness. Each brother also testified on his own behalf, with each implicating the other. 1 Garcia essentially confirmed th e vict im’s version of even ts, except where her testi mo ny implicat ed his willingness to com mit the acts. Garcia’s theory of defense was that, while he
com mit ted the specific criminal acts alleged, he should not be convicted because he acted unde r duress. In support of this defense, Garcia testi fied that Alejandro th reatened 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 selfcontai ned on separate documents, and each charge was identified as ap plicable t o each respective defendant. 2 Over the objection of the prosecution and Alejandro’s counsel, the tri al judge included

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

the a ccom

plice-witness instruction. S ee Garcia v. State , No. 04-99-897-CR (Tex. App.—San Ant onio Oct. 18, 2000). - 3 - wit ness inst ruction, given in Alejandro’s charge, described Garcia as an accom plice to Alejandro. And Garcia’s jury charge, in a similar instruction, described Alejandro as an accomplice to Garcia. Garcia’s jury charge also included inst ructions related to his duress defen s e. Garcia’s challenge is limit ed to the accom

plice-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 sixt y years fo r aggravated sexual assault, twenty years fo r 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 tri al court erred (1) by
om it ti ng Garcia’s requested jury inst ruction on th e issue of the voluntariness of his conduct and (2) in restricti

ng his cross- examination of the prosecution’s witnesses. The Texas court of appeals affirmed Garcia’s conviction. S ee 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 peti tion in state court, alleging fo ur grounds of error: (1) that his conviction was obtai

ned pursuant to a constitutionally prohibited jury inst ruction; (2) that the jury inst ruction was harmful; (3) that he received ineffect ive assistance of counsel at tri al; and (4) that he receive d ineffecti

ve assistance of counsel on appeal . The state trial court recommended granting habeas relief, but the Texas Court of Criminal Appeals disagreed and, wit hout opinio n, denied Garcia’s petition.5 In addition to the appeal on the merit s, the Director also appeals the district court’s

decision to equitably toll the statute of limit ations. 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 extraordi nary 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)).

6 The di strict court granted the Di rector’s motion to stay judgment pending t he outcome of this appeal. - 4 - Garcia next filed a habeas peti tion in federal court. Garcia’s petition focused on three issues: (1) that the i

nclusion of the accomplice-witness instructions in Alejandro’s jury charge vio lat ed the Fourteenth Amendment ; (2) that he received ineffect ive assistance of counsel at tri al; and (3) that he received ineffect ive assistance of counsel on appeal. The district court initially dismissed Garcia’s peti tion as ti me-barred under 28 U.S.C. § 2244(d). On reconsideration, the district court equitably tolled the one-year statute of limit ati on s and addressed the petition’s merits. 5 The district court
concluded that Garcia’s conviction had been obtained pursuant to constitutionally prohibited jury inst ructions and that the state court’s denial of Garcia’s wri t 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 orderi

ng Garcia’s convictions reversed and remanding to the state tri al court fo r a new tri al wit hin 120 days of the di strict court’s order. The Di rector of th e 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 fo r clear error and
review it s conclusions of law de novo, applying the same standard of review to the state court ’s decision as the district court.’” M artinez v. Johnson , 255 F.3d 229, 237 (5th Ci r. 2001) (quoti

ng Thompson v. Cain , 161 F.3d 802, 805 (5th Cir. 1998)). If the issue is a mixed question of law and- 5 -

fact, such as the assessment of harmless error, we review the district court’s determ inat io n 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 peti tion aft er th e effe ctive date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). As a result, the petition is subject to the procedures and standards impo sed by AEDPA. S

ee Lindh v. Murphy , 521 U.S. 320, 336 (1997). Under AEDPA, “[a] federal court’s collat eral review of a state-court decision must be consistent wit h th e respect due state courts in our federal syst em.” M iller-El v. Cockrell , 537 U.S. 322, 340 (2003). Moreover, our ci rcuit precedent provides that “‘a federal habeas court is authorized by Section 2254(d) to review only a state court’s ‘decision,’ and not the wri tten opi nio n 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)). S ee also Santellan v. Cockrell , 271 F.3d 190, 193 (5th Cir. 2001) (“The statute compels federal courts to review fo r reasonableness th e state court’s ul ti mat e decision, not every jot of its reasoning.”). A. Findings of Fact A state court’s factual findings are “presumed to be correct.” H ughes v. Dretke , 412 F.3d 582, 589 (citing 28 U.S.C. § 2254(e)(1)). Before a federal court, “a petitioner has t he burden of rebutti ng this presumption wit h clear and convincing evidence.” I d

. This deference extends not only to express findings of fact, but to the implicit findings of the state court. S ummers 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- 6 -

determ ined that § 2254(d)(1) “affo rds a peti tioner two avenues, ‘contrary to’ and ‘unreasonable application,’” by which to challenge a state court’s legal conclusions. S ummers , 431 F.3d at 868–69 (di scussing William s v. Taylor , 529 U.S. 362, 405 (2000)). A state court’s concl usion of law is “contrary to
. . . clearly esta blished Federal law, as determined by the Supreme Court” under two conditions: (1) “t he state court applies a rule that contradicts th e governing law

set fo rth in [the Supreme Court’s] cases,” or (2) “the state court conf ronts a set of facts that are materially indistinguishable from a decision of [t he 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) (quoti ng Williams , 529 U.S. at 405–06). Wit h respect to the second avenue, “a state court decision is an unreasonable application of clearly established Supreme Court precedent if th e state court correctl y identifies th e governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.” Summers , 431 F.3d at 869 (i nt ernal quotations om

it ted). 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 inco rrect and unreasonable to warrant federal habeas relief.” I d. (quoti ng Foster , 293 F.3d at 776). “ Only if a state court’s application of federal constitutional law fit s within this paradigm may this court grant relief.” Id

. III. DISCUSSION A. The accomplice-witness instruction Garcia contends that the tri al court erroneously inst ructed the jury in vio lat io n of Sandstrom7 Garcia 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) (pl urality), in support of his claim.
8 We assume wit hout deciding that Alejandro’s jury charge can be prejudicial to Garcia. - 7 - v. Montana , 442 U.S. 510 (1979). 7 The accomplice-witness instruction in Alejandro’s jury charge, Garcia maint ains, 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 inst ructed that an accomplice witness, as the term is hereinafter used, means any person connected wit h th e crime charged, as a party thereto, and includes all persons who are connected wit h the crime, as such parti es, by unlawful act or om iss io n on thei

r part transpiring either before or during the time of the com missio n of the of fense and whether or not they were present and participated in the com missio n of the crime.

. . . The wit ness, Andrew Garcia, is an a ccom plice, if an offense was com mit ted, and yo u cannot convict [Alejandro] upon [Garcia’s] testi mo ny unless yo u fir st believe that [Garcia’s] testi mo ny is true and shows that [Alejandr o] i s guilty as charged, and then you cannot convict [Alejand ro] upon said testi mo ny unless yo u further believe that there is other testi

mo ny in the case, outside of th e evidence of the said Andrew Garcia tending to connect [Alejandro] with the offense com mit ted, if yo u find that an of fense was com

m itted, and the corroboration is not sufficient if it merely shows th e com missio n of the of fense, but it must tend to connect [Alejandro] wit h it s com missio n, and th en from all o f t he evidence you must believe beyond a reasonable doubt that [Alejandro ] i s guilt y o f t he offense charged against him. Because the inst ruction defined Garcia as an ac com plice, the argument continues, the trial judge negated the presumption of inno cence and permitted the jury to convict Garcia wit hout proof of guilt beyo nd a reasonable doubt as to every element of his charged crime. The district court agreed with Garcia and granted habeas relief.- 8 -

On appeal, the Director does not contest that th e jury charge vio lat ed Sandstrom

. Rather, the Director contends that a federal habeas court should review the tri al court’s error fo r harmless error and that the district court erred in granting habeas relief wit hout considering whether th e Sandstrom error was harmless. We address each issue in turn. (1) Brecht harmless-error review is appropriate The Supreme Court has recognized two categori es of constitutional vio lat io ns, “trial error” and “structural defects.” S ee Arizona v. Fulminante , 499 U.S. 279, 307–08 (1991). The former class is made up of thos e errors that “may be ‘quantitatively assessed in the context of other evidence presented.’” M

yers v. Johnson , 76 F.3d 1330, 1337 (5th Cir. 1996) (quoti ng 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. S

ee Robertson , 324 F.3d at 304 n.3 (“A Sandstrom -ty pe error has been held to be a ‘tri al error’ to which the harmless error rule applies.”). Holding, as we do, that the com plained-of error is subject to harmless error analysis does not
com plete our i

nquiry. In B recht v. Abramson , 507 U.S. 619, 634–38 (1993) , th e Supreme Court declined t o appl

y t he harmless-beyond-a-reasonable-doubt standard from C hapman v. Califor

nia , 386 U.S. 18, 24 (1967), on habeas review of a state-court conviction. Rather,“[r]ecognizing the distinction between direct and collat eral 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 injurio us effect or influence in determ ining th e jury’s verdict.’” Id. at 637 (quoti ng Kotteakos , 328 U.S. at 776).9 Compare Gutierrez v. McGinnis , 389 F.3d 300, 306 (2d Cir. 2004) (declining to

apply Brecht “when a state court explicit ly 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 (10th Cir. 2004) (applying Brecht when the state court did not apply the Chapman harmless-error standard), wi th 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).
10 In the ti me since Robertson was decided, the Supreme Court has not addressed the specific question of whether federal habeas courts are to appl y B recht aft er AEDPA’s enactment. However, in Mitchell v. Esparza , the Supreme Court, on habeas review, considered the state court’s harmless-error review under AEDPA’s standard of review: “We may no t grant respondent’s habeas peti tion, however, if the state court simply erred in concluding that th e State’s errors were harmless; rath er, habeas relief is appropriate only if the [state court] applied harmless-error review in an ‘objectively unreasonable’ manner.” 540 U.S. 12, 18 (2003) (per curi am) (citing L ockyer v. Andrade , 538 U.S. 63, 75–77 (2003)). The Second Circuit has read M itchell as implicit ly rejecting Brecht , at least when the state court has made a harmless-error determ inat io n. G utierrez v. McGinnis , 389 F.3d 300, 306 (2d Cir. 2004). But even if we read M itchell as th e Second Circuit does, our precedent in Robertson remains unaffected because Robertson speaks directly to th e situation where th e stat e court did not perform a harmless-error review. Nor does our adherence to R obertson signal a rejection of the Nint h Circuit’s two-step harmless-error habeas review; under that analysis, a finding against the peti

tioner on either step precludes habeas relief. See Inthavong v. Lamarque , 420 F.3d 1055, 1059 (9th Cir. 2005). - 9 - Following the enactment of AEDPA, some courts questioned whether federal habeas courts should conti

nue to apply the Brecht harmless-error standard or whether th e proper role was to review the state court’s application of the Chapman harmless-error standard under AEDPA. 9 In this circuit—at least when the state court did not perform it s own harmless-error review—we simply apply the Brech t harmless-error analysis. R obertson , 324 F.3d at 306 (“We hold that AEDPA’s restrictions on federal review of state habeas decisions do not alt er Brecht ’s mandate fo r harmless
error analysis by federal courts when state courts have failed to address th e que sti on of harm less error.”). 10 C

f. Penry v. Johnson , 532 U.S. 782, 795–96 (2001) (applying the Brecht harmless-error analysis in a post-AEDPA habeas proceeding where th e state court fo und no error and, therefore, did11 At oral argum ent, the Di rector suggested that state courts fi rst should apply the Brecht harmless-error analysis, which federal habeas courts would th en review under AEDPA’s deferential standard. We disagree. B rech t ’ s less-stringent standard of harmless-error review is predicated on a federal habea s court’s respect f or com it y, finalit y, and federalism. Congress addressed these same principles in enacting AEDPA. S ee Williams , 529 U.S. at 436 (“AEDPA’ s purpose [i s] to f

urther the principles of comity, finality, and federalism.”). Brecht ’s existence does not relieve a state court of it s duty to apply Chapman ’s harmless-error analysis where it is required to do so under Supreme Court precedents. - 10 - 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 w ere violated” because the “inst ructions relieved the State of its burden of proving by evidence Peti tioner’s guilt in th e alleged of fense beyo nd a reasonable doubt.” In reaching this conclusion, the district court noted that the state t ri al habeas court recom

mended granting relief. In addition, after pointing out that Alejandro ’s conviction had been overturned on direct review b ecause of the erroneous inclusion of the accomplice-witness inst ruction in his jury charge, th e district court stated “t hat [Garcia] should be given the exact same treatment as his broth er.” But the di strict court never assessed whether the Sandstorm error was harmless on the facts of Garcia’s conviction. The Supreme Court has had occasion to consider th e application of harmless-error review to Sandstrom error. S

ee Connecticut v. Johnson , 460 U.S. 73 (1983) (pl urality). The J

ohnson plurality makes clear that, if a defendant concedes the i ssue on which the erroneous instruction wrongfully inst ructs the j ury, S

andstrom error may be harmless. S ee 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- 11 -

cases admit that the act alleged by the prosecution was int entional, th ereby sufficient ly reducing the likeliho od that the jury applied the erroneous inst ruction as to permit th e 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 com mit ted th e specific acts alleged, he did so under duress. As such, the Director contends, the Sandstrom error was harmless. The Director also poi nt s out that the duress inst ructions, which were included in each count’s instructions for Garcia, ameliorate any persistant
concern that the improper accomplice-witness inst ruction had a substantial and injurio us effect on the jury’s verdict. We agree. At worst, the jury was inst ructed that Garcia was “connected wit h th e crime charged, as a party thereto,
. . . by unlawful act or om issio n.” But Garcia admitted as much in establishing his own defense. By admit ti

ng his participation in the criminal acts, Garcia rendered the accomplice-witness inst ruction error harmless . Moreov er, the accomplice-witness instruction did not affect Garcia’s duress defense adversely. The additional inst ruction given to th e jury regarding Garcia’s duress defense eliminat es any residual doubt as to the potential harm from the accomplice-witness inst ruction. 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 i s an affirmative defense to prosecution that the act or engaged in the proscri

bed conduct because he was com pelled to do so by th reat of imminent death or serious bodily injury to himself or another. Com pulsion wit hin th e meaning of this section exists only if the fo rce or th

reat of fo rce would render a person of reasonable firmness incapable of resisting the pressure. . . .12 In the alternative, we hold that the state habeas court’s rejection of Garcia’s postconviction challenge was not contrary to or an unreasonable application of Supreme Court precedent. Given the similarit ie s between the record before us and the example in J ohnson , it would not be unreasonable for the state habeas court to conclude that the Sandstrom error was harmless beyo nd a reasonable doubt. - 12 - Appearing in th

ree separate sections of Garcia’s jury charge—one fo r each count against him—was an inst ruction on the application of Garcia’s duress defense:

[I]f you find from th e evidence

. . . that [Garci a] did commit the of fense . . . as alleged in th e indictment and hereinbefore defined in this charge, but yo u further find

. . . that Alejandro Garcia did hold a f ir earm to the head of Andrew Garcia while threatening the said Andrew Garcia to com

mit the of

fense

. . . and that th e threats of Alejandro Garcia were such th reats of fo rce as would render a person of reasonable firmness incapable of resis ting the pressure, and that [Garcia] was in fear of imminent lo ss of life or serious bodily injury at the hands of Alejandro Garcia if he did not participate th erein, th en yo u will acquit [Garcia] and say by your verdict “not guilty.” Viewing the jury inst ructions as a whole, as we must, see United States v. Young , 282 F.3d 349, 353 (5th Cir. 2002), the resol ution of th e harmless error inquiry is clear. In error, the tri al court inst ructed the jury that Garcia had performed th e acts alleged. But the tri al court correctl y inst ructed the jury that i

t could not convict Garcia—even if he had engaged in the proscribed conduct—if the jury fo und he com

mit ted the acts under duress. The init ial error was rendered harmless by the nature of Garcia’s duress defense. And the duress instructions properl y 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 init ial Sandstrom error did not have a “‘substantial and injurio us effect or influence in determ ining the jury’s verdict.’” 12 B recht , 507 U.S. at 637 (quoti ng 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 th e evidence and13 The district court did not grant habeas relief ba sed on the S trickland claim. Nevertheless, the district court determined that Garcia received ineffective assistance of counsel in relation to another issue below. - 13 - defense presented related to an issue unaffected by the error). B. Ineffective assistance of counsel In addition to the Sandstrom err or cl aim, Garcia also asserted that he received ineffective assistance of counsel both at tri al and on appeal under Stric kland 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 inst ruction and (2) on appeal by failing to raise the Sandstrom error. These same Strickland claims were asserted in Garcia’s state habeas peti tion 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 ult imat e decision. S ee Neal , 286 F.3d at 246. Our task then is to determine whether the state habeas co urt’s rej ection of Garcia’s Strickland claim is co nt rary to or an unreasonable application of Supreme Court precedent. Before the state habeas court, Garcia was required to show (1) “t hat counsel’s performance
was deficient” and (2) “t hat the deficient performance prejudiced th e defense.” S trickland, 466 U.S. at 687. To substantiate the deficient performance claim, Garcia was required to show that counsel’s actions “fell below an objecti ve standard of reasonableness.” I d. 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 tri al, a tri al whose result is reliable.’” Lockhart v. Fretw ell , 506 U.S. 364, 369 (1993) (quoti ng Strickland, 466 U.S. at 687). Our AEDPA review of the state habeas court’s rejection of these claims is simplified by our- 14 -

prior determ

inat io n that the Sandstrom error was harmless wit h respect to Garcia. The state habeas court’s rej ection of Garcia’s S trickland claim was not unreasonable under Strickland because th e allegedly deficient performance of counsel at tri al produced no harm to Garcia’s cause. S ee Gochicoa

v. Johnson , 238 F.3d 278, 286 (5th Cir. 2000) (finding no Strickland prejudice where counsel’s error
was harmless); Mayabb v. Johnson , 168 F .3d 863, 869 (5th Ci r. 1999) (finding no S

trickland prejudice where the argued-for “jury charge did not have a substantial and injurio us effect or influence in determ ining 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 inst ructions 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.” M ayabb v , 168 F.3d at 869 (citing Ricalday v. Procunier , 736 F.2d 203, 208 (5th Cir. 1984)). Moreover, contrasti

ng the dissimilar results between Garcia and Alejandro does not establish prejudice. To the contrary, the dispari ty supports our analysis because Garcia, unlike Alejandro, conceded that he com

mit ted criminal acts. By contrast, Alejandro argued that the victim was a willing participant. It comes, then, as no surprise that the accomplice-witness inst ruction could be harmful—even reversible—error as to Alejandro but not as to Garcia. Accordingly, we hold that the state habeas court’s rejection of Garcia’s Strickland claim was neit her 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.