### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40787 Summary Calendar

JOE ISAAC JOHNSON, Petitioner-Appellant

v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF C RIMINAL 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 T exas prisone r # 1384642, w as convicted of engaging i n organized criminal activity a nd theft and was sentenced to serve 35 years in prison. Th e d istrict court granted Johnson a c ertificate o f a p p ealability (COA) on the issue whether counsel rendered ineffective a ssistance “because ‘the trial court w as never presented with Petitioner’s Fourth Amendmen t c l a im through his trial counsel that the U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 12, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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search of his impounded vehicle by [Texas Department of P ublic Safety] officer Snyder was an unlawful search.’” Because c laims of i neffectiv e a s s i s t a nc e o f c o u n s e l i nvo lv e m ix ed questions of law and fact, they are c ontrolled by 28 U

. S.C. §2254(d)(1). G regory v. Thaler , 6 0 1 F

. 3 d 347, 351 (5th Cir. 2010). Thus, a petitioner will not receive r e l i e f o n such a claim absent a showing that the state court’ s d i s p o s i t i on of the claim “resulted in a decision that was contrary to, or involved an u n r e a sonable application of, clearly established Federal law, as d e termined by the S upreme Court of the U nited States.” Id. (quoting §2254(d)( 1 ) ). Under Strickland v. Washington , 466 U. S

. 668, 687 (1984), a petitioner must establish both “that

coun s el’s p e rformance was deficient” and “that the d eficient performance prejudiced the defense.” T he combined standards of Strickland and § 2254(d)

are “doubl y d e f

erential. We take a highly deferential l ook at c ounsel’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 determin a t i o n of these questions d e novo. See Richards v. Quarterman , 566 F.3d 553, 561 (5th C ir. 2 0 0 9 )

. I n the circum s t a n ces here at issue, Johnson must show that the disputed evidence would have been suppressed had it b een objected to and that, absent the excludable evidence, there is a reasonable probability of a different verdict. See Ki mmelman v. Morrison , 477 U.S. 3 65, 375 (1986). He has not made this showing because the r emaining evidence adduced at trial s uffices to u phold his conviction. See Sweed v. State , 351 S.W.3d 63, 6 8 (Tex. Crim. App. 2011); Adi v. State , 94 S.W.3d 124, 128 (Tex. App. 2002). The testimony of J ohnson’s accomplice sh owed that Johnson and others conspired to commit and c ommitted theft by taking trucks f rom d ealerships with the intent to deprive the dealerships of those vehicles. See Sweed , 351 S.W.3d at 68; Adi , 94 S

. W.3d at 1 29. This was not, however, the only evidence “tending to connect” J ohnson t o the offense. See Joube r t v . State , 235 S.W.3d 729, 731
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(Tex. C rim. App. 2007). Rather, tes t i mony f rom several police officers was consistent with the accompli c e ’s version of events and further tied Johnson to the offense. See Sweed , 351 S.W.3d at 68; Joubert , 2 35 S .W.3d at 7 3 1 ; Adi , 94 S.W.3d at 129. Johnson has not shown tha t h e i s e ntitled to relief on his ineffective assistance claim. The district court’s j udgment as t o this claim is AFFIRMED. Additionally, Johnson requests a COA o n his claim that the district court erred b y denying his request for an evidentiary heari n g
. T o obtain a COA, he must make “a s ubstantial showing of the denial of a consti t u t i o n a l right.” 28 U.S.C. § 2253(c)(2); Slack v . McDaniel , 529 U.S. 473, 4 8 3 -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 w as not entitled t o an e videntiary hearing. Clark v. J

ohnson , 227 F.3d 273, 284 (5th Cir. 2000); see a lso Cullen v. Pinholster , 131 S. Ct.1388, 1400 (2011). His COA request is DENIED.

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