Albert Ricalday v. Raymond K. Procunier, Director, Texas Department of Corrections

THORNBERRY, Circuit Judge:

This is an appeal from a denial of a state prisoner’s habeas corpus petition. Petitioner Ricalday contends that his right to effective assistance of counsel under the sixth and fourteenth amendments was violated when his attorney failed to object to and failed to appeal a variation between his indictment and the court’s charge to the jury. We agree that counsel’s assistance was deficient, but because we find no prejudice to the petitioner, we affirm the district court’s decision.

I

On September 4, 1975, petitioner Ricalday shot and killed a man named Abel Moreno after…