IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-31090

Summary Calendar

DIMARCO LEWIS,

Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:09-CV-2848

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Dimarco Lewis, Louisiana prisoner # 466781, appeals the district court’s

dismissal of his 28 U.S.C. § 2254 petition challenging his convictions for armed

robbery, attempted armed robbery, and two counts of attempted second-degree

murder. A certificate of appealability was granted on the issue whether the

district court erred by denying a claim that counsel provided ineffective

assistance by failing to provide proper notice of an alibi witness, which resulted

in this witness not being allowed to testify.

United States Court of Appeals

Fifth Circuit

F I L E D

October 18, 2011

Lyle W. Cayce

Clerk

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.

Case: 09-31090 Document: 00511635728 Page: 1 Date Filed: 10/18/2011
No. 09-31090

We must defer to a state habeas court’s determination of the merits of the

prisoner’s claims unless the state decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States,” or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” § 2254(d)(1) & (2). To obtain relief under § 2254, a state prisoner

“must show that the state court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011). We review

the district court’s findings of fact for clear error and issues of law de novo.

Harrison v. Quarterman, 496 F.3d 419, 423 (5th Cir. 2007).

Lewis has failed to provide any evidence from the witness herself showing

that she was willing to testify and setting out the content of her expected

testimony. In addition, the witness’s testimony, as alleged by Lewis, would have

been relevant only to two of the four charges, the testimony would have been

cumulative of earlier testimony, and the witness’s credibility could have been

questioned based on her close family relationship with Lewis. Finally, several

other witnesses identified Lewis as one of the perpetrators. Even if this court

presumes that reasonable jurists could not disagree that counsel performed

deficiently by failing to list this alibi witness, Lewis cannot show “beyond any

possibility for fairminded disagreement” that, if counsel had listed this witness

and she had testified, the result of his trial would have been different. See

Harrington, 131 S. Ct. at 786-87; Strickland v. Washington, 466 U.S. 668, 694

(1984).

AFFIRMED.

2

Case: 09-31090 Document: 00511635728 Page: 2 Date Filed: 10/18/2011