### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 gr a nt e d o n the issue whether the district court e rr e d 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. 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 Octob er 18 , 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 09-31090 Document: 00511635728 Page: 1 Date Filed: 10/18/2011No. 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, o r i nvolved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an u nr e a s onable determination o f 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 i s s u es of law de novo. Harrison v. Quarterman , 496 F.3d 419, 423 (5th Cir. 200 7). Lewis has failed to provide any evidence from the witness herself showing that s h e w a s w illing 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 c h ar g e s, the testimony would have been cumulative of earlier testimony, and the witness ’ s c r e dibility could have been questioned based on her close family relationship with Lewis. Finally, several other w it n e s s e s i dentified Lewis as one of the perpetrators. Even if this court presumes that reasonable juris ts could not disagree that counsel performed d e f i ciently by failing to list this alibi witness, Lewis cannot show “beyo n d a ny possibility for fairminded disagreement” that, if counsel had listed this witness and she had testified, the result of his tri al w o u l d have been different. See H a r r ington , 131 S. Ct. at 786-87; Strickland v. Washington, 466 U.S. 668, 6 9 4 (1984). AFFIRMED.

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