* Pursuant to 5TH CIR. R. 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 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40044

Summary Calendar

MARK ANTHONY BAXTER

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:05-CV-448

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Mark Anthony Baxter, Texas prisoner # 1155779,

was convicted by a jury of aggravated assault against a public servant for which

he was sentenced to 50 years imprisonment. His conviction was affirmed on

appeal and he was denied state habeas relief. Baxter filed a 28 U.S.C. § 2254

application, which the district court denied. After denying Baxter’s § 2254

application,the district court granted Baxter a certificate of appealability on the

United States Court of Appeals

Fifth Circuit

F I L E D

March 18, 2008

Charles R. Fulbruge III

Clerk
No. 07-40044

2

questions whether there is a reasonable likelihood that the jury applied a

mandatory evidentiary presumption in a way that violates the Constitution and

whether Baxter suffered prejudice from his trial counsel’s failure to objectto jury

instructions containing a mandatory evidentiary presumption.

Regarding the jury instruction issue, Baxter contends that his

constitutional rights were violated when the trial courtfailed to give a charge on

the presumption that, he insists, was mandated by Texas Penal Code § 2.05(a)(2)

(Vernon 2005) after the court gave the jury a Texas Penal Code § 22.02(c)

(Vernon 2005) instruction on a presumed fact. His argument consists of

generalized legal boilerplate regarding jury instructions and due process. He

asserts in a conclusional fashion that there is a reasonable likelihood that the

jury applied the presumption in a way that violated the Constitution. In light

of the record and the detailed analyses of the state appellate court and the

district court, we conclude that Baxter has failed to establish that the district

court erred in denying habeas relief on this issue. See Ortiz v. Quarterman, 504

F.3d 492, 496 (5th Cir. 2007); 28 U.S.C. § 2254(d).

Baxter also asserts a claim of ineffective assistance of counsel. Although

Baxter insists that there is a reasonable likelihood that the jury would have

returned a different verdict if it had been properly instructed, he does not

address the detailed analysis performed by the district court regarding this

issue. His argument is conclusional, at best. Conclusional allegations of

ineffective assistance of counsel are insufficient to establish the petitioner’s right

to habeas relief. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). Moreover,

Baxter’s argument does not amount to the affirmative showing of prejudice that

is required under Strickland v. Washington, 466 U.S. 668, 693-94 (1984). His

argument thus fails to establish that the district court erred in denying habeas

relief on this ground. See Ortiz, 504 F.3d at 496; § 2254(d).

The district court’s judgment is AFFIRMED.