IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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 Rabe 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 include new evidence. 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,

United States Court of Appeals

Fifth Circuit

F I L E D

August 3, 2011

Lyle W. Cayce

Clerk

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

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which 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 one of those individuals. According to the

clerk’s testimony at trial, he specifically focused 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 lineup, he had been unsure

whether he had identified the right person, but in the courtroom he was

“absolutely positive” 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 was that, at the time of the robbery, he was working with

Jesse Diaz on an air conditioner for Vincent Avalos at Avalos’s house. Rabe

alleges that before trial he gave his court-appointed attorney,MichaelSmith, the

names of Avalos, Avalos’s wife, 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, Rabe’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. Smith then raised this issue at

sentencing, but Rabe was nevertheless sentenced to forty-eight years in prison,

 131 S. Ct. 1388 (2011).

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calculated in part by enhancements for two prior felony 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 allegations, which the court attached to its findings of fact

and conclusions of law in denying Rabe’s petition. The state trial court

concluded:

While counsel admits 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 because Smith: 2

(1) did not subpoena three alibi witnesses, including Diaz; and (2) failed to

investigate or present evidence that the suspect in the surveillance video, alleged

to be Rabe, did not have tattoos on his arms as does Rabe. 

As the district court was troubled by the state court’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 and 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 first filed a pro se application asserting eleven claims. Thereafter, however, 2

counsel was appointed and he filed an amended application asserting only this single ground

for relief.

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have done had the work not been completed. Neither of them could confirm,

however, that Rabe was at their 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 worked with Rabe from 11:00

a.m. until 5:30 p.m. Diaz also testified that he had never been contacted by

Smith. A letter from Diaz to Rabe was added to the record, however, 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 the district court deny Rabe’s habeas

application. The magistrate judge noted his concern that, because Rabe had

made no attempt to introduce this evidence or obtain statements from these

witnesses at the state habeas proceedings, “it is doubtful whether a federal court

even has discretion to conduct an evidentiary hearing.” Nevertheless, the

magistrate judge considered the evidence in the federal record and concluded

that Rabe had failed to show: (1) “how the 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 showed 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 recommended

denial of Rabe’s application, and the district court adopted the findings and the

recommendation 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, we review that court’s findings of fact for clear error and its

conclusions of law de novo, applying the same standard of review to the state

court’s decision that the district court applied. Because Rabe filed his federal 3

habeas application after 1996, the Anti-Terrorism and Effective Death Penalty

Act of 1996 (AEDPA) applies to his claims. Pursuant to the AEDPA, we may 4

grant habeas corpus relief to Rabe only if the state court’s adjudication of his

claim on the merits:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or 

(2) resulted in a decision 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 Supreme Court held, in Cullen v. Pinholster, that

federal review of a state prisoner’s habeas claim is “limited to the record that

Robertson v. Cain, 324 F.3d 297, 301 (5th Cir. 2003).

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Lindh v. Murphy, 521 U.S. 320, 324-26 (1997).

4

 28 U.S.C. § 2254(d).

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Id. § 2254(e)(1). 6

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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. If a claim 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 affidavit, 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 record, whether

that court’s decision—that Smith was notineffective 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 counsel’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 errors were so

serious as to deprive the defendant of a fair trial.” “[A] court deciding an actual 10

ineffectiveness 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. at 1398. 7

Id. at 1400 (emphasis added).

8

 466 U.S. 668 (1984). 9

Id. at 687. 10

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conduct. . . . [T]he court should recognize that counsel is strongly presumed to

have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.”11

In Rabe’s state post-conviction petition, he 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] presented [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 Rabe’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 my file that I left

messages with these witnesses. These notes are attached to this

affidavit. There is also what appears to be a mapsco number of

“34N” next to a [Diaz’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 specifically recalls that we made attempts to contact

the listed witness, Jesse Diaz, on Mohawk Drive.

There is no doubt in my mind that these witnesses either

never called me back or turned out to be of no use to Mr. Rabe’s

cause.

Rabe’s allegations andSmith’s affidavit were, therefore, the only evidence before

the state court relating to whether Diaz was subpoenaed or could have been

present at Rabe’s trial. 

Id. at 690.

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The state trial court specifically 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, explaining

that “Mr. Smith asserts he made numerous attempts to contact the witnesses

and also spoke with his investigator, Jay Monych, who also made attempts to

locate the witnesses. Mr. Smith states that these witnesses did not return

counsel’s calls and were of no benefit to Applicant.” The state trial court 12

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 foregoing reasons, the district court’s denial of Rabe’s federal

habeas corpus application is AFFIRMED.13

Neither the state appeals court nor the Texas Court of Criminal Appeals specifically 12

considered Smith’s performance regarding his alleged failure to subpoena or secure the

presence of Diaz at trial. As a result, we can review only the state trial court’s finding on that

issue.

When a habeas applicant fails to demonstrate on the basis of the state-court record 13

that the state court’s adjudication of his claim resulted in a decision “contrary to” or

“involv[ing] an unreasonable application” of federal law pursuant to § 2254(d)(1), a writ of

habeas corpus shall not be granted, and “our analysis is at an end.” Pinholster, 131 S. Ct. at

1411 n.20. For that reason, we need not decide whether here the district court should have

called Diaz to testify on that claim. We note that we would not have been able to consider such

testimony, even if the district court had called Diaz to testify.

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