* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

March 31, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-10116

Summary Calendar

 

TARRANCE DARON WHITLOCK

Petitioner - Appellant

v.

DOUG DRETKE, DIRECTOR, 

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 

CORRECTIONAL INSTITUTIONS DIVISION

Respondent - Appellee

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:03-CV-2191-D

--------------------

Before KING, Chief Judge, and HIGGINBOTHAM and PRADO, Circuit

Judges.

PER CURIAM:*

Tarrance Daron Whitlock, Texas prisoner # 930799, was

granted a certificate of appealability on the issues whether

trial counsel rendered ineffective assistance with respect to

securing testimony of witnesses who may have corroborated

Whitlock’s alibi and whether the district court erred when it

denied Whitlock’s 28 U.S.C. § 2254 petition without an
No. 04-10116

-2-

evidentiary hearing. Whitlock v. Dretke, No. 04-10116, slip op.

at 3 (5th Cir. June 29, 2004).

Whitlock argues that the district court should have granted

him habeas relief because the state habeas court’s application of

Strickland v. Washington, 466 U.S. 668 (1984), was unreasonable. 

See 28 U.S.C. § 2254(d)(1). The state court’s factual findings

“shall be presumed to be correct” unless the petitioner rebuts

the presumption “by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1). This presumption of correctness applies to

explicit and implicit findings of fact which are necessary to the

state court’s conclusions of mixed law and fact and to the state

court’s credibility determinations. Valdez v. Cockrell, 274 F.3d

941, 948 n.11 (5th Cir. 2001); Galvan v. Cockrell, 293 F.3d 760,

764 (5th Cir. 2002).

The state habeas court found Whitlock’s trial counsel’s

affidavit to be credible and implicitly found that counsel did

not call the individuals who filed affidavits purporting to

support Whitlock’s alibi testimony because either they were

unavailable to testify or their testimony would not have

supported Whitlock’s alibi. The district court found that

Whitlock had not rebutted this credibility determination with

clear and convincing evidence. The district court’s finding is

not clearly erroneous because the state court’s decision did not

involve an unreasonable application of Strickland.
No. 04-10116

-3-

Whether the district court erred in denying Whitlock an

evidentiary hearing is governed by 28 U.S.C. § 2254(e)(2).

Whitlock has not explained why he is entitled to an evidentiary

hearing under this standard, nor do we independently discern any

basis for a hearing. Even if a evidentiary hearing is not barred

by § 2254(e)(2), Whitlock makes only a conclusional assertion

that he was denied a full and fair hearing. He has not

demonstrated that the district court abused its discretion in

denying a hearing. See Murphy v. Johnson, 205 F.3d 809, 815 (5th

Cir. 2000).

AFFIRMED.