### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10105 Summary Calendar

JUAN JIMENEZ, Petitioner-Appellant

v. R I C K T HAL E R , D I R E C T O R , T E X A S D E PARTM E NT O F C R I M I NAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee

Appeal from the United States District Court f or the Northern District of Texas USDC No. 3:11-CV-697

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Juan J imenez, Texas prisoner #1393676, appeals the district court’s dismissal of his habeas p etition c ha l lenging his c onviction a nd 65-year prison sentence for aggravated robbery. See28 U.S.C. § 2254. We AFFIRM. The Section 2254 petition a s s e rted that trial counsel was ineffective for failing to convey to Jimenez the State’s p l ea offer of 25 years of imprisonment. The state habeas court, relying o n an affidavit of t rial c ounsel denying any U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 17, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-10105 Document: 00512211158 Page: 1 Date Filed: 04/17/2013No. 12-10105

knowledge of a 25-year offer, concluded that Jimenez failed to prove t hat such an offer w as ever made. The district court, however, considered an affidavit of trial counsel, never i ntroduced in state court, in which he stated that there had indeed been a 25-year offer that w as conveyed to and rejected by Jimenez. We granted Jimenez a certificate of appealability on t he following issues: whether it was proper f

or th e district c ourt to consider the affidavit of Jimenez’s counsel that was not presented t o the state court; whether the district court was required under Section 2254(d)(2) to defer t o the s t ate c ourt’s ruling as one not based o n an u nreasonable determination o f the facts in light o f t he evidence presented in state court, e ven though the state court ’ s decision was based on affidavit testimony later r e c a nted in federal court; and whether the district court erred by finding that Jimenez did not suffer prejudice. F o r a claim adjudicated on the merits in a s tate h abeas p r oceeding , “evidence later introduced in federal court is irrelevant.” Cullen v. Pinholster , 131 S. Ct. 1388, 1 400 ( 2011) (concerning review under Section 2254(d)(1)). “The

same rule neces s a r i l y applies to a federal court’s review of purely factual determinations under § 2254(d)(2).” Blue v. Thaler , 665 F.3d 647, 656 ( 5th Cir. 2011), cert. denied , 133 S. Ct. 105 (2012). Pinholster s uggests that an e xception may lie, however, if a habeas petitioner presents “a new cla i m ” t urning on evidence never presented in the state court, such as “new e vidence o f withheld exculpatory witness statements.” 131 S. Ct. a t 1401 n.10; see also id. at 1417-18 (Sotomayor, J., dissenting); cf. Blue , 665 F.3d at 657. Jimenez argues that couns e l ’ s federal affidavit did not modify h is state court claim but merely supplemented it a nd that the claim w as therefore not a

new and unexhausted claim. He partly relies on Dowthitt v . J ohnson , 230 F.3d 733 (5th C i r . 2000), a nd Lewis v. Quarterman , 5 41 F.3d 280 (5th Cir. 2008). These decisions are no longer good law on the p oints he rais e s i n light of Pinholster , 131 S. Ct. 1388. The question of whether t o consider evidence never presented to th e s tat e c ourt is not a nalyzed as an exhaustion issue under
2 Case: 12-10105 Document: 00512211158 Page: 2 Date Filed: 04/17/2013No. 12-10105

Section 2254(b). Lewis v. T haler , 701 F.3d 783, 790-97 (5th C ir. 2012). Jimenez has thus failed to cite any au t hority supporting his contention that c ounsel’s federal affidavit could be considered when deciding whether to defer to the state court’s resolution of his claim of constitutional error. Additionally, Jimenez fails to show that, based o n the record be f o r e t h e state habeas c ourt, “ no fairminded jurist c o uld agree with” t hat court’s conclusion that counsel did not r e n d e r d e f icient services. See Bobby v. Dixon , 132 S

. Ct. 2 6 , 2 7 ( 2011). I ndeed, Jimenez does not even attempt the effort, electing instead to pretermit the question of deficient performance. The district court made no determination concerning the propriety of the state habeas court’s conclusion that c ounsel h a d not rendered deficient performance; the distric t court merely assumed deficient performance for the
purpose of the prejudice analy s i s . Wh e ther t he s tate c ourt erred in its conclusion of no deficiency is a question that has been abandoned on appeal as

a result of Jimenez’s decision not t o b rief the p erformance issue. See Yohey v. Collins , 985 F.2d 222, 224-25 (5th Cir. 1993). Jimenez’s discussion of the prejudice issue is therefore i rrelevant. See Hill v. Lockhart , 474 U.S. 52, 5 8 (1985). His motion for the appointment of counsel i s DENIED, and the judgment of the district court is AFFIRMED.

3 Case: 12-10105 Document: 00512211158 Page: 3 Date Filed: 04/17/2013