Carlos Ayestas v. William Stephens, Director

No member of this panel nor judge in regular active service on the court having requested that the court be polled on Rehearing En Banc, the Petition for Rehearing En Banc is DENIED. See Fed. R. App. P. 35; 5th CiR. R. 35.

The Petition .for Panel Rehearing is also DENIED'.

*215 In the petitions, Ayestas makes two arguments to which we will respond. First, he alleges errors with our holding under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). Specifically, he claims we held that “because federal habeas counsel did not locate the Siegler Memo sooner, it was insufficiently diligent under” Article 11.071 § 5(a)(1) of the Texas Code of Criminal Procedure. We were not, though, referring to the diligence of federal habeas counsel in locating the memo. It was the diligence of Ayestas’s trial counsel that we were describing. Our analysis is consistent with Rhines.

Ayestas also points out that he was not in fact examined by a psychologist in 1997, but we stated he had been in our opinion. Our analysis is nonetheless unchanged. In our opinion, we held that even if Ayestas had shown there had been deficient performance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), he did not show prejudice, that is, a “substantial, not just conceivable, likelihood of a different result.” Ayestas v. Stephens, 817 F.3d 888, 898 (5th Cir. 2016) (quoting Cullen v. Pinholster, 563 U.S. 170, 189, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011)). Ayestas does not challenge this aspect of our panel opinion. Our conclusion that Strickland ineffectiveness was not shown remains unchanged.