David Ducros v. Burl Cain, Warden

Filing

UNPUBLISHED OPINION FILED. [11-30574 Affirmed] Judge: JLW , Judge: EMG , Judge: EBC. Mandate pull date is 07/03/2012 [11-30574]

Case: 11-30574

Document: 00511883913

Page: 1

Date Filed: 06/12/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-30574
Summary Calendar

June 12, 2012
Lyle W. Cayce
Clerk

DAVID DUCROS,
Petitioner-Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee

Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CV-6977

Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant David Ducros, Louisiana prisoner # 117331, appeals
the denial of his 28 U.S.C. § 2254 petition in which he sought relief from his
conviction for second degree murder and his sentence of life imprisonment. The
district court denied relief but granted a certificate of appealability on the issues
whether (1) Ducros was denied effective assistance of trial counsel because his
lawyers prevented him from testifying, and (2) the trial court’s instruction on
reasonable doubt was unconstitutional.
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Case: 11-30574

Document: 00511883913

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Date Filed: 06/12/2012

No. 11-30574
As these claims were adjudicated in a state court proceeding, we evaluate
them under the “difficult to meet” and “highly deferential standard for
evaluating state-court rulings,” contained in § 2254(d). See Clark v. Thaler, 673
F.3d 410, 416 (5th Cir. 2012) (internal quotation marks omitted) (citing Cullen
v. Pinholster, 131 S. Ct. 1388, 1398 (2011), and Harrington v. Richter, 131 S. Ct.
770, 784 (2011)).
Ducros asserts that his lawyers were ineffective because, when they
denied him his right to testify, they precluded the jury from hearing mitigating
evidence that would have led to a conviction for the lesser offense of
manslaughter.

The state court’s denial of habeas relief on this claim is

measured against the standard set forth in Strickland v. Washington, 466 U.S.
668, 687 (1984), which requires that Ducros show both deficient performance by
counsel and resulting prejudice. See Clark, 673 F.3d at 417-18. A failure to
establish either prong defeats the claim. Strickland, 466 U.S. at 697. Ducros
has the burden of proof. See Clark, 673 F.3d at 416. Under Strickland’s
deferential standard, we must “affirmatively entertain the range of possible
reasons counsel may have had for proceeding as they did.” Pinholster, 131 S. Ct.
at 1407.
Ducros’s reliance on the documents he submitted in his objections to the
magistrate judge’s report and his assertion that he was entitled to an
evidentiary hearing are misplaced. Our review is “‘limited to the record that was
before the state court that adjudicated the claim on the merits.’” Rabe v. Thaler,
649 F.3d 305, 308-09 (5th Cir. 2011) (quoting Pinholster, 131 S. Ct. at 1398).
Nothing in the state record supports Ducros’s assertion that he made his desire
to testify known to his counsel. Further, the state habeas court could have
concluded that counsel reasonably dissuaded Ducros from testifying. See Clark,
673 F.3d at 421. As Ducros thus fails to meet his burden of showing ineffective
assistance of counsel, and he is not entitled to federal habeas relief on this claim.
See Richter, 131 S. Ct. at 786.
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Case: 11-30574

Document: 00511883913

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Date Filed: 06/12/2012

No. 11-30574
Ducros also claims that the trial court’s instruction on reasonable doubt
was unconstitutional. As asserted, Ducros’s challenges do not entitle him to
habeas relief. See Victor v. Nebraska, 511 U.S. 1, 16, 20 (1994); Williams v.
Cain, 229 F.3d 468, 477 (5th Cir. 2000).
The district court’s denial of Ducros’s petition is AFFIRMED.

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