1 Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-40554

Summary Calendar

ELIFONSO LOPEZ,

Petitioner-Appellee,

VERSUS

WAYNE SCOTT, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(B-93-CV-213)

May 15, 1996

Before WIENER, PARKER and DENNIS, Circuit Judges.

PER CURIAM: 1

Elifonso Lopez was convicted after a jury trial in Texas state

court of aggravated sexual assault on a child and sentenced to life

imprisonment. His conviction was affirmed on direct appeal, and

his state habeas application was denied without written order bythe Texas Court of Criminal Appeals.

Lopez subsequently filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He alleged, i nter alia

, that he had

received ineffective assistance of counsel because his attorney

failed to investigate and present his alibi defense, by which he

claimed that he w as incarcerated on the date of the offense as

alleged in the indictment.

The respondent filed a motion for s ummary judgment, arguing

that the State was not bound by the date alleged in the indictment,

but was required to prove only that the offense occurred prior to

the return of the indictment and within the limitations period.

After conducting an evidentiary hearing, the magistrate judge made

the following findings of fact and conclusions of law: that Lopez

began serving time in the Texas Department of Criminal Justice

(TDCJ) on October 1, 1987; that he was paroled on February 25,

1988, and remained free until August 16, 1988; that he was released

from the Cameron County Sheriff's Office on October 25, 1988, to

the custody of TDCJ; that he was incarcerated in TDCJ on December

17, 1988, the date of the alleged offense; that his counsel

presented the trial testimony of Parole Officer Omar Sanchez, who

testified incorrectly that Lopez had been continuously incarcerated

from June 1987 until May 1989; that the State then impeached

Sanchez, showing that Lopez had been released from custody in

February 1988; that the jury was never told that Lopez had been rearrested in August 1988 and was still incarcerated in December

1988; that it "would have been impossible" for Lopez to have

committed the offense as charged in the indictment; that if the3

jury had been informed that Lopez was incarcerated on December 17,

1988, the jury could not have reasonably convicted Lopez; and that

Lopez's defense counsel did not meet with Lopez prior to trial,

ade quately investigate the case, or accurately present Lopez's

alibi defense. The magistrate judge thus determined that Lopez's

attorney's performance was deficient and that Lopez was prejudiced

by his counsel's "superficial and inadequate alibi defense

presentation." The magistrate judge recommended that Lopez's

habeas petition be granted, the state court judgment vacated, and

Lopez released from custody.

The district court, in adopting the magistrate judge's

Report and Recommendation, determined that Lopez's counsel was

defi cient, that Lopez was prejudiced by his deficiency, and

therefore vacated and set aside the judgment entered by the State

trial court. The State appealed. We affirm.

DISCUSSION

The respondent argu es that the district court erred by

determining that Lopez was prejudiced by his trial co unsel's

deficient perfo rmance. The respondent contends that counsel's

failure to submit conclusive proof of Lopez's incarce ration on

December 17, 1988, could not have resulted in prejudice to Lopez

because state law does not require specific proof of the offense

date, but only proof that the offense occurred prior to the return

of the indictment and prior to the expiration of the limitations

period. The respondent points out that the jury was informed by

the State's closing argument and the jury charge that the offense4

could have occurred at any time between December 17, 1978 and June

27, 1990. The respondent further contends that, based upon

c onflicting testimony at trial regarding the victim's age at the

time of the offense, testimony from a psychologist that the child

could have mixed up the d ates, and evidence that Lopez had been

released from prison in May 1989, the jury could have inferred that

Lopez committed the crime in December 1989.

Lopez argues that the State's introduction of evidence showing

that he had been released from jail on November 22, 1988 created

the impression that he had not been incarcerated in December 1988,

because the jury was never informed that he was actually released

from jail into the custody of TDCJ. Lopez further argues that the

fact that the offense could have been committed at any time during

the applicable limitations period is irrelevant.

Testimony from Lopez's trial could have supported an inference

that the offense occurred in December 1989. Criminal investigator

Nikki Arias testified that the victim initially told her that the

offense occurred in December 1989, and that he was confused about

the dates. However, testimony at trial also raised the inference

that the offense could not have occurred in December 1989, because

the victim testified that the incident occurred in December 1988,

the day after his eighth birthday while he was living on George

Saenz Road. The t estimony established that the family moved from

George Saenz Road in February 1989.

To obtain habeas corpus relief based upon ineffective

assistance of counsel, a petitioner must show not only that his5

attorney's performance fell below an objective standard of

reasonable competence, but th at the petitioner was prejudiced by

his counsel's deficient performance. S trickland v. Washington

, 466

U.S. 668, 687 (1984). In evaluating such claims, this court

indulges in "a strong presumption" that counsel's representation

fell "within the wide range of reasonable professional competence,"

Bridge v. Lyn augh , 838 F.2d 770, 773 (5th Cir. 1988), and the

petitioner must overcome the presumption that the challenged action

might be considered sound trial strategy. S trickland

, 466 U.S. at

689. Judicial scrutiny of counsel's performance must be highly

deferential, and courts must make every effort "to eliminate the

distorting effects of hindsight, to reconstruct the circumstances

of counsel's challenged conduct, and to evaluate the conduct from

counsel's perspective at the time." Id.

To demonstrate prejudice, the petitioner must show that

counsel's deficient performance caused the result of the trial to

b e unreliable or rendered the proceeding fundamentally unfair.

Lockhart v. Fretwell , 113 S. Ct. 838, 844 (1993).

The respondent does not argue that Lopez's trial counsel's

performance was adequate, but rather that Lopez was not prejudiced

by counsel's deficiency. If Lopez's trial counsel had produced

conclusive evidence regarding Lopez's periods of incarceration,

there is a high probability that the jury would have determined

that Lopez could not have committed the offense on December 17,

1988, because he was incarcerated, and that the offense could not

have occurred on December 17, 1989, because the family no longer6

lived at the address on George Saenz Road. Counsel's deficient

performance thus caused the result of the trial to be unreliable.

Based on the foregoing, we hold that Lopez's attorney's

performance fell below an objective standard of reasonable

competence, and that Lopez was prejudiced by hi s counsel's

deficient performance. S ee Strickland v. Washington

, 466 U.S. 668,

687 (1984).

The district court's judgment is, therefore,

AFFIRMED.