### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 09-10938

ROBERT ALLEN RABE, Petitioner-Appellant
v. RICK THALER, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee

Appeal from the United States District Court for the Northern District of Texas

Before WIENER, CLEMENT, and ELROD, Circuit Judges. WIENER, Circuit Judge: Petitioner-Appellant Robert Allen Rab e was convicted in state court of aggravated robbery with a deadly weapon. He filed a state post-conviction petition based on the alleged ineffective assistance of his court-appointed trial counsel, which was denied. He then filed a federal habeas application and expanded the record to inclu d e n e w e vidence. The district court held an evidentiary hearing at which new witnesses testified, then denied habeas relief. On appeal, our review is limited to whether Rabe’s trial counsel was ineffective for failing to subpoena or secure the presence of Rabe’s alibi witness, Jesse Diaz, U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 3, 2 011 Lyle W . Cayce Clerk Case: 09-10938 Document: 00511561166 Page: 1 Date Filed: 08/03/2011No. 09-10938

at trial. In light of the Supreme Court’s recent holding in Cullen v. Pinholster , 1

wh i c h restricts our review in these cases strictly to the contents of the statecourt record, we conclude that the state court reasonably determined that Rabe’s assistance of counsel was not ineffective and affirm the district court’s denial of habeas relief. I. FACTS & PROCEEDINGS At approximately 2:00 p.m., three individuals entered a liquor store and robbed the store clerk at gunpoint. During a six-person photo lineup and again at trial, the clerk identified Rabe as o n e o f th o se individuals. According to the clerk’s testimony at trial, he specifically f ocused his attention on Rabe during the robbery because Rabe was the one who had a gun pointed at the clerk’s chest. At trial, the clerk conceded that during the photo line u p , h e had been unsure whether he had identified the right person, but in the courtroom he was “absolutely positiv e” that defendant Rabe was one of the men who had robbed the store. The robbery was also recorded on a video surveillance camera, and the videotape, though grainy, was admitted into evidence and shown to the jury. Rabe’s alibi w a s th a t , at the time of the robbery, he was working with Jesse Diaz on an air conditioner for Vince n t Av al os at Avalos’s house. Rabe alleges that before trial he gave his court-appointed attorney , Mich a el Smith, the

names of Avalos, Avalos’s w ife, and Diaz as potential alibi witnesses, but that Smith did contact any of them to testify at trial. A jury convicted Rabe of aggravated robbery with a deadly weapon. After the conviction, but before sentencing, R ab e ’ s sister watched the surveillance video and noticed that the suspect alleged to be Rabe—who has tattoos on both of his arms—did not appear to have tattoos. Sm ith then raised this issue at sentencing, but Rabe was nevertheless sentenced to forty-eight years in prison,

131 S

. Ct. 138 8 ( 2011)

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calculated in part by enhancements for two prior fe l o ny convictions. Rabe’s conviction and sentence were affirmed on appeal. Rabe filed a state post-conviction petition in which he alleged that Smith had provided ineffective assistance of counsel. Smith submitted an affidavit in
response to Rabe’s al legations, which the court attached to its findings of fact and conclusions of law in denying Rabe’s petition. The state t rial court concluded: While counsel a dmits to some errors, this Court does not find the errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Applicant has not proven that counsel’s omissions or mistakes raise a reasonable probability that the outcome of the trial would be different but for the errors. Nor does this Court find that the minimally deficient purpose prejudiced him by depriving him of a fair trial. A state appeals court affirmed, and the Texas Court of Criminal Appeals denied relief without written order based on the findings of the trial court. Rabe then filed a federal habeas application asserting as his sole ground of relief that he had received ineffective assistance of counsel be cause Smith: 2 (1) did not subpoena three alibi witnesses, including Diaz; and (2) failed to investigate or present evidence that the suspect in th e s urveill anc e video, alleged to be Rabe, did not have tattoos on his arms as does Rabe. As the district court was troubled by the st a t e c o u rt ’s failure to address Smith’s concession that he “probably dropped the ball” for not sooner discovering the “tattoo defense,” it scheduled an evidentiary hearing to explore the factual basis of Rabe’s claim of ineffective assistance of counsel. At the evidentiary hearing, Avalos a n d his wife testified that they had hired Rabe to fix their air conditioner and paid him the day following the robbery, which they would not

Rabe fir st fil e d a p r o se app lica tion ass ert ing eleven clai ms . There aft er, how ever, 2
couns el wa s app oint ed and he fil ed an ame nded app lica tio n ass ert ing only this sin gle ground forr elie f. 3 Case: 09-10938 Document: 00511561166 Page: 3 Date Filed: 08/03/2011No. 09-10938

have done ha d the work not been completed. Neither of them could confirm, however, that Rabe w a s a t th e i r house at the time of the robbery. They also testified that they were not contacted by Smith or asked to testify at Rabe’s trial. In addition, Rabe expanded the record to include an affidavit from Diaz in which he stated that on the day of the robbery, he had w o rk e d w i th Rabe from 11:00

a.m. until 5: 3 0 p . m. Diaz also testified that he had never been contacted by Smith. A letter from Diaz to Rabe was added to the reco r d , h o w e v er, in which Diaz explained that he was subpoenaed by Smith but was confused about the date of the trial and left for a job on the day of trial. After the evidentiary hearing, the magistrate judge who had conducted it entered findings and recommended that th e di strict court deny Rabe’s habeas application. The magistrate judge noted his concern that, because Rabe had made no attempt to intr o du ce this evidence or obtain statements from these witnesses at the state habeas proceedings, “it is doubtful whether a federal court

even has discretion t o c o n duct an evidentiary hearing.” Nevertheless, the magistrate judge considered the evidence in the fe d e r al record and concluded that Rabe had failed to show: (1) “h o w th e testimony of [Avalos and his wife] would have been helpful to the defense,” and (2) “that Diaz was both available and willing to testify at his trial.” In addition, the magistrate judge noted that the surveillance video was “of poor quality” and only s h owed the top of the suspect’s forearms, which was inconclusive, given that Rabe’s tattoos are on the underside of his forearms and his biceps. The magistrate judge r e c o mmended denial of Rabe’s application, and the district court adopted the findings and the

reco m m e n dation of the magistrate judge. Rabe timely filed a notice of appeal, and the district court denied a certificate of appealability (COA). Rabe then applied for a COA in this court, which we granted. We limited

our review to Rabe’s claim “that counsel was ineffective for failing to subpoena and/or secure the presence of Jesse Diaz as a witness during Rabe’s trial

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including whether the district court should have called Diaz to testify at an evidentiary hearing on that claim.” II. ANALYSIS A. Standard of Review On appeal from the district court’s denial of Rabe’s federal habeas application, w e review that court’s findings of fact for clear error and its conclusions of law de novo , a p p lying the same standard of review to the state court’s d ecision that the district court applied. Because Rabe filed his federal 3 habeas application after 1996, the Anti-Terrorism and Effective Death Penalty Act o f 1 9 9 6 (AEDPA) applies to his claims. Pursuant to the AEDPA, we may 4 grant habeas corpus relief to Rabe only if the state court’s a d j udication of his claim on the merits: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly establish e d F ederal law, as determined by the Supreme Court of the United States; or (2) resulted in a d e c i s ion that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 5 In addition, the AEDPA instructs that “a determination of a factual issue made by a State court shall be presumed to be correct.” 6 B. We May Only Consider the Evidence in the State-Court Record Earlier this year, the Suprem e C o urt held, in Cullen v. Pinholster , that federal review of a state prisoner’s habeas claim is “limited t o th e record that

Robe rtsonv . Cai n , 324 F.3d297 , 301 (5th Cir

. 2003)

. 3
Lindh v. M

urp hy , 521 U. S. 320 , 324- 26 ( 1997)

. 4
28 U. S. C. § 2 254( d)

. 5
Id. § 2254( e)( 1). 6 5 Case: 09-10938 Document: 00511561166 Page: 5 Date Filed: 08/03/2011No. 09-10938

was before the state court that adjudicated the claim on the merits.” The Court 7 went on to explain that “evidence introduced in federal court has no bearing on § 2254(d)(1) review. I f a c l aim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court.” 8 In our review of Rabe’s habeas application, therefore, we may not consider any of the evidence presented for the first time in federal court. That evidence included: (1) the testimony of Avalos and his wife, (2) Diaz’s af f i davit, and (3) Diaz’s letter to the court. C. Rabe Did Not Show That Diaz Was Able and Willing to Testify at Trial First, we must determine, based only on the state-court re c o rd , whether that court’s decision—that Smith was not ineffective for failing to subpoena Diaz

or secure his presence at trial—was unreasonable under § 2254(d). We review claims of ineffective assistance of counsel under the two-prong test articulated by the Supreme Court in Strickland v. Washington

. To obtain habeas relief on 9 that ground, the petitioner must show that: (1) his c o u n s e l’s performance was deficient, i.e., “counsel made errors so serious that counsel was not functioning

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) the deficient performance prejudiced the petitioner, i.e., “counsel’s e rr o rs were so serious as to deprive the defendant of a fair trial.” “[A] court deciding an actual 1 0 ineffec t iv e n ess claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s

131 S

. Ct. at139 8. 7
Id. at140 0 ( em phas is add ed)

. 8
466U .S

. 668 (198 4). 9
Id. at 687. 1 0 6 Case: 09-10938 Document: 00511561166 Page: 6 Date Filed: 08/03/2011No. 09-10938

conduct.

. . . [T]he court should recognize th a t c ounsel is strongly presumed to have rendered adequ a te assistance and made all significant decisions in the exercise of reasonable professional judgment.” 1 1 In Rabe’s state post-conviction petition, h e alleged that he “advised [Smith] that Jessie Diaz was working with [Rabe] on the day of the robbery and would likely testify on his behalf” and that “[Smith] did not interview [Diaz] or have [him] present to testify at trial.” He further alleged that Diaz “would have testified that at the time of the robbery, [Rabe] was doing house repairs. . . . It is therefore likely had [Smith] p resented [Diaz] the outcome of the trial would have been different.” But, Rabe did not support this claim with any evidence that would establish that, but for Smith’s deficient performance, Diaz would have testified as R ab e ’ s alibi at trial. Instead, the only evidence in the state record regarding this claim was an affidavit from Smith, which stated:

My recollection is I made numerous attempts to contact these witnesses [including Diaz]. I do have notes in m y f ile that I left messages with these witnesses. These notes are attache d t o this affi d avit

. There is also what appears to be a mapsco number of “34N” next t o a [D iaz’s] name indicating that I looked up this witness’s address in an effort to speak to him. Although I have no independent recollection of speaking with any of these witnesses, there is not doubt I at least attempted to contact these people. Furthermore I spoke to Jay Monych, my investigator on this case, and he specific al ly recalls that we made attempts to contact the listed witness, Jesse Diaz, on Mohawk Drive. There is no doub t i n m y mind that these witnesses either
n ev e r called me back or turned out to be of no use to Mr. Rab e ’ s cause. Rabe’s allegations an d S mith’s affidavit were, therefore, the only evidence before the state court relating to whether Diaz w a s s ub p oenaed or could have been present at Rabe’s trial.

Id. at690

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The state trial court specific al ly addressed Smith’s alleged failure “to interview alibi witness [sic] and have them present to testify during trial” and

ruled that Rabe had not received ineffective assistance of counsel, explaini n g that “Mr. Smith asserts he made numerous attempts to con t a ct the witnesses

a n d al s o spoke with his investigator, Jay Monych, who also made attempts to l o c a te the witnesses. Mr. Smith states that these witnesses did not retur n counsel’s calls and wer e o f no benefit to Applicant.” The state trial court 1 2 ultimately concluded that “Mr. Smith is known to this Court and is found to be trustworthy” and accepted Smith’s response to Rabe’s unsupported allegations. Because Rabe produced no evidence that Diaz was in fact able and willing to testify at trial, or even that Smith did not attempt to contact or subpoena Diaz

as Smith claimed in his affidavit, we cannot say that the state court made an unreasonable determination of the facts in light of the evidence before it. Neither
can we say, based on such evidence, that the state court unreasonably applied Strickland in concluding that, as to securing Diaz’s presence at trial, Smith’s performance was not deficient. III. CONCLUSION For the fo r e go i ng reasons, the district court’s denial of Rabe’s federal habeas corpus application is AFFIRMED. 1 3

Nei ther the st ate app eals court nor the Texas Court of Crim inal App eals sp ecif ical ly 1 2
cons ide red S m i th’ s perfor man ce regar ding his allege d failure to sub poe na or se cur e the pr es ence of Di az at tri al. As a res ult, we can revie w only the st ate tri al court’s finding on that iss ue. When a habeas app lica nt fails to dem ons tra te on the bas is of the stat e-c ourt rec ord

1 3 that the st ate court’s adjudicat ion of his clai m res ulte d in a dec isi on “c o n t r a ry to” or “invo lv [i n g] an unrea so nable app lica tio n” of fed eral law pur sua nt to § 2254( d) (1) , a writ of habeas c orp us sha ll not be grant ed, and“ our analys is isat an end.” Pinho ls ter , 131 S. Ct

. at 14 1 1 n . 2 0

. F o r that reas on, we need not dec ide wh ethe r here the dis tri ct court sho uld have call ed Di az to tes tif

y on that clai m. We note that we wo uld not have been able to cons ide r suc h tes tim ony, even if the dis tri ct court had call ed Di az t o t es tif y. 8 Case: 09-10938 Document: 00511561166 Page: 8 Date Filed: 08/03/2011