UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________________

No. 00-31342 ______________________________

KEVIN ANDERSON,

Appellant

VERSUS

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Appellee

___________________________________________________

Appeal from the United States District Court For the Eastern District of Louisiana (99-CV-1415) ___________________________________________________

December 18, 2001 Before JOLLY and PARKER, Circuit Judges, and MILLS*, District Judge.

PER CURIAM:**

The Appellant, Kevin Anderson (“Anderson”), seeks a writ of

habeas corpus due to ineffective assistance of counsel. He argues

* District Judge of the Central District of Illinois, sitting by designation. ** 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 that he lost his trial for armed robbery and attempted murder

because his trial counsel failed to object to the introduction of

certain inadmissible hearsay testimony. We conclude that it was

not unreasonable for the state court to find that Anderson was not

prejudiced by trial counsel’s error. Therefore, we DENY the

petition.

I. FACTS AND PROCEDURAL HISTORY

On February 4, 1993, an Orleans Parish jury convicted Anderson

of the armed robbery and attempted first degree murder of George

Lewis (“Lewis”). The conviction was based upon the following

evidence.

On November 8, 1991, Lewis and his cousin, Patrick Leon

(“Leon”), were riding their bikes. Lewis was stopped by an

individual, armed with a gun, who attempted to rob him of his Los

Angeles Raiders starter jacket. The individual was later

identified by both Leon and Lewis as Brian Bordenave. When Lewis

resisted the robbery, Bordenave opened fire, shooting Lewis in the

hand. As Lewis attempted to escape, Bordenave shot Lewis two more

times. After Lewis collapsed, Bordenave took the jacket. He then

left in a gray-blue station wagon occupied by two other

individuals.

At trial, both Lewis and Leon testified that, when Bordenave

stopped Lewis, a second individual was standing some distance away.

This individual urged Bordenave to “get the jacket” and moved

2 closer to him in a gesture of support. After the shooting and

robbery, the second individual joined the gunman in the station

wagon where they were driven away by a third party. Although Lewis

never could identify this second individual, Leon identified

Anderson as the second individual.

On November 13, 1991, New Orleans Police Officers attempted to

stop the gray-blue station wagon for license plate violations. The

driver of the station wagon tried to escape, but the police trapped

the station wagon. Three individuals quickly exited and attempted

to escape from the police on foot. The police caught two of the

three individuals, Bordenave and Jerome Eggerson. The third

individual escaped. No police officer was ever able to identify

the third individual.

At trial, the State introduced testimony about the November

13, 1991 incident from Officer Kenny Watzke. Officer Watzke

testified that the third individual pointed a gun at him during his

escape. More importantly, he testified that Jerome Eggerson made

an out-of-court statement which identified Anderson as the third

individual involved in the car chase incident.3 This hearsay

3 Eggerson’s identification of Anderson was actually introduced to the jury in an indirect manner. In response to a question about who was in the back seat of the station wagon, Officer Watzke stated that it was Anderson. However, Officer Watzke admitted that he could not personally identify Anderson as the individual in the back seat of the vehicle. He merely relied on Eggerson’s identification of Anderson. It is undisputed that Eggerson did not testify during court. Therefore, it is clear that Officer Watzke’s testimony placing Anderson in the vehicle was hearsay testimony.

3 testimony was not objected to by trial counsel for Anderson.

Finally, the State introduced evidence that the police stopped a

cab in which Anderson was riding on November 15, 1991. Police

officers testified that Anderson attempted to evade police, but was

subsequently apprehended. Anderson was then arrested for

possession of two concealed weapons.

Anderson appealed his conviction to the Louisiana Fourth

Circuit Court of Appeals. The Fourth Circuit reversed Anderson’s

conviction for the attempted first degree murder of Mr. Lewis due

to insufficient evidence and vacated his sentence on that charge.

The appellate court also reversed Anderson’s conviction for armed

robbery because the evidence concerning the November 13 and 15

incidents was inadmissible “other crimes” evidence and its

introduction was not harmless error. The Fourth Circuit concluded

that Leon’s positive identification of Anderson was not so

overwhelming as to establish beyond a reasonable doubt that the

jury verdict would have been the same without the damaging “other

crimes” evidence.

After granting the State’s writ application, the Louisiana

Supreme Court reversed the Fourth Circuit’s decision on the

admissibility of the “other crimes” evidence, and reinstated both

Anderson’s armed robbery conviction and sentence and attempted

murder conviction, albeit modified to attempted second degree

4 murder. After the reinstatement of the convictions, Anderson

sought post-conviction relief in a Louisiana trial court. He

argued that his constitutional right to effective assistance of

counsel had been violated because his trial counsel had not

objected to inadmissible hearsay evidence. The trial court denied

the relief requested. Anderson appealed to the Louisiana Fourth

Circuit Court of Appeals once again.

The Fourth Circuit assessed Anderson’s ineffective assistance

of counsel claim under the two-part test outlined in Strickland v.

Washington,

(1994). The Fourth Circuit determined

that trial counsel’s failure to object to the inadmissible hearsay

evidence was deficient, however, it also found that Anderson was

not prejudiced by the failure to object. It, therefore, denied the

ineffective assistance of counsel claim.

Anderson subsequently filed his application for writ of habeas

corpus under

in the United States District Court

for the Eastern District of Louisiana. Anderson made the same

ineffective assistance of counsel argument. The district court

also rejected his contention, finding that trial counsel’s error

was not sufficiently prejudicial under Strickland. Anderson

appealed to our court.

II. JURISDICTION

This is an appeal from the final order of the district court

denying habeas corpus relief. The district court issued a

5 certificate of appealability. We have jurisdiction. See

.

III. STANDARD OF REVIEW

Under the 1996 Antiterrorism and Effective Death Penalty Act

(“AEDPA”), we cannot issue a writ of habeas corpus concerning “any

claim that was adjudicated on the merits in State court

proceedings” unless the state court’s adjudication of that claim

unreasonably applied clearly established federal law. A decision

is an unreasonable application of federal law “if the state court

identifies the correct governing legal principle . . . but

unreasonably applies that principle to the facts of the prisoner’s

case.” Williams v. Taylor,

(2000). Factual

findings of the state court are presumed to be correct unless they

were based on an unreasonable determination of the facts in light

of the evidence presented in the state court proceeding. Chambers

v. Johnson,

(5th Cir. 2000). Anderson’s claim is

a mixed question of law and fact. See Pratt v. Cain,

(5th Cir. 1998)(determinations regarding the adequacy of

counsel’s performance and prejudice are mixed questions of law and

fact).

IV. DISCUSSION

Ineffective assistance of counsel claims are governed by

Strickland. To obtain federal habeas relief, Anderson must prove

two components: (1) deficient performance on the part of his trial

6 counsel; and (2) that he was prejudiced by the deficient

performance. Strickland,

. To prove deficient

performance, Anderson must show that counsel’s actions “fell below

an objective standard of reasonableness.”

. To prove

prejudice, he must demonstrate “that there is a reasonable

probability that but for counsel’s unprofessional errors, the

result . . . would have been different.”

. “A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.”

A. Deficient Performance

The Fourth Circuit’s post-conviction opinion implicitly finds

that trial counsel’s performance was deficient under the first

prong of the Strickland test. This finding is correct. Eggerson’s

out-of-court hearsay statement was the critical piece of evidence

in the case as it allowed the “other crimes” evidence to be

admissible. Louisiana courts have held that the failure to object

to the introduction of such damaging hearsay evidence “presents a

textbook unprofessional error.” State v. Sanders,

(La. 1994). Therefore, Anderson has satisfied the first prong

of the Strickland test.

B. Prejudice

Anderson argues that he was prejudiced by the failure to

object to the hearsay testimony. We disagree. The trial court

record establishes that Leon positively identified Anderson as a

7 perpetrator of the armed robbery/attempted second degree murder in

a photographic lineup and at trial. Leon testified that he heard

Anderson say, “Get the jacket. Get the jacket. Let’s go.”

Moreover, Leon testified that he had a good look at both

Bordenave’s face and Anderson’s face during the commission of the

crime because they were only a few feet away from him when the

incident occurred. Finally, we note that Leon completed part of his

testimony by stating that he was certain Anderson was the “other

man” involved in the shooting.

V. CONCLUSION

Based upon the strength of Leon’s identification, we conclude

that it was not unreasonable for the Fourth Circuit to find that

Anderson was not prejudiced by his counsel’s failure to object to

the inadmissible hearsay.4 Consequently, the district court’s

judgment is AFFIRMED.

4 Anderson contends that the Fourth Circuit’s post-conviction determination that he was not prejudiced conflicts with its earlier direct appeal decision which found that the Leon identification was “not so overwhelming as to establish beyond a reasonable doubt that the verdict would have been the same absent the error.” We express no opinion as to whether there is a conflict between these two decisions. Instead, we simply note that the Fourth Circuit applied the Strickland prejudice prong to the facts of this case in a manner that was not unreasonable.

8