IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40787

Summary Calendar

JOE ISAAC JOHNSON,

Petitioner-Appellant

v.

WILLIAM STEPHENS, 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. 9:11-CV-124

Before JONES, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Following a jury trial, Joe Isaac Johnson, former Texas prisoner

# 1384642, was convicted of engaging in organized criminal activity and theft

and was sentenced to serve 35 years in prison. The district court granted

Johnson a certificate of appealability (COA) on the issue whether counsel

rendered ineffective assistance “because ‘the trial court was never presented

with Petitioner’s Fourth Amendment claim through his trial counsel that the

United States Court of Appeals

Fifth Circuit

F I L E D

June 12, 2013

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.

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No. 12-40787

search of his impounded vehicle by [Texas Department of Public Safety] officer

Snyder was an unlawful search.’” 

Because claims of ineffective assistance of counselinvolve mixed questions

of law and fact, they are controlled by 28 U.S.C. §2254(d)(1). Gregory v. Thaler,

601 F.3d 347, 351 (5th Cir. 2010). Thus, a petitioner will not receive relief on

such a claim absent a showing that the state court’s disposition of the claim

“resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” Id. (quoting §2254(d)(1)). Under Strickland v.

Washington, 466 U.S. 668, 687 (1984), a petitioner must establish both “that

counsel’s performance was deficient” and “that the deficient performance

prejudiced the defense.” The combined standards of Strickland and § 2254(d)

are “doubly deferential. We take a highly deferential look at counsel’s

performance, through the deferential lens of § 2254(d).” Cullen v. Pinholster, 131

S. Ct. 1388, 1403 (2011) (citations omitted) (internal quotation marks omitted).

We review the district court’s determination of these questions de novo. 

See Richards v. Quarterman, 566 F.3d 553, 561 (5th Cir. 2009). In the

circumstances here at issue, Johnson must show that the disputed evidence

would have been suppressed had it been objected to and that, absent the

excludable evidence, there is a reasonable probability of a different verdict. See

Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). He has not made this

showing because the remaining evidence adduced at trial suffices to uphold his

conviction. See Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011); Adi

v. State, 94 S.W.3d 124, 128 (Tex. App. 2002). 

The testimony of Johnson’s accomplice showed that Johnson and others

conspired to commit and committed theft by taking trucks from dealerships with

the intent to deprive the dealerships of those vehicles. See Sweed, 351 S.W.3d

at 68; Adi, 94 S.W.3d at 129. This was not, however, the only evidence “tending

to connect” Johnson to the offense. See Joubert v. State, 235 S.W.3d 729, 731

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(Tex. Crim. App. 2007). Rather, testimony from several police officers was

consistent with the accomplice’s version of events and further tied Johnson to

the offense. See Sweed, 351 S.W.3d at 68; Joubert, 235 S.W.3d at 731; Adi, 94

S.W.3d at 129. Johnson has not shown that he is entitled to relief on his

ineffective assistance claim. The district court’s judgment as to this claim is

AFFIRMED. 

Additionally, Johnson requests a COA on his claim that the district court

erred by denying his request for an evidentiary hearing. To obtain a COA, he

must make “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); United

States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998). Because the record was

adequate to dispose of his claims, Johnson was not entitled to an evidentiary

hearing. Clark v. Johnson, 227 F.3d 273, 284 (5th Cir. 2000); see also Cullen v.

Pinholster, 131 S. Ct.1388, 1400 (2011). His COA request is DENIED.

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