IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40517 Summary Calendar

LEE-AUNDRY LAMON GORDON,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:01-CV-334 - - - - - - - - - - December 27, 2002

Before JOLLY, JONES, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Lee-Aundry Lamon Gordon appeals the district court’s denial

of his claim in his

petition that counsel was

ineffective when he elicited Gordon’s confession to the offense

of aggravated robbery. Gordon argues that the entire trial

strategy of seeking a conviction for the lesser included offense

of attempted aggravated robbery was destroyed by this confession.

The record does not support this contention. On direct appeal,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-40517 -2-

Gordon argued that he was entitled to a jury instruction for the

lesser included offense of attempted aggravated robbery. The

state court determined that because the evidence supported the

jury’s determination that he had committed aggravated robbery, he

was not entitled to such an instruction. Thus, Gordon’s argument

that he was prejudiced by not being able to make a case for

attempted aggravated robbery is meritless. Gordon has not shown

that but for counsel’s eliciting a judicial confession, the

result of the proceedings would have been different. Strickland

v. Washington,

(1984). Moreover, the record

indicates that counsel was trying to show that Gordon did not

have the requisite intent to rob and was therefore guilty only of

attempted aggravated robbery. Under the deferential standard by

which counsel’s actions at trial are judged, Gordon has not shown

that counsel’s conduct fell outside the wide range of reasonable

professional assistance. Strickland,

.

The same arguments raised herein were rejected by the state

court when it denied Gordon’s habeas application. Gordon has not

attempted to show, now has he shown, that the state court’s

decision (1) was contrary to, or an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court; or (2) was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.

(d)(1) & (2). The denial of his

petition is therefore AFFIRMED.