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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-11255
Non-Argument Calendar
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D.C. Docket No. 4:06-cv-00554-MP-EMT
ANDRE MCKENZIE,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(February 12, 2013)
Before BARKETT, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Andre McKenzie, a Florida prisoner serving a life sentence, appeals the
district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus.
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We granted McKenzie a certificate of appealability on the issue of “[w]hether the
district court erred by denying McKenzie’s claim that his trial counsel furnished
ineffective assistance by failing to object to witness Anthony Williams’s testimony
regarding how he became a state witness.” On appeal, McKenzie argues that his
trial counsel’s failure to object to Williams’s hearsay testimony, request a limiting
instruction, or move for a mistrial, and the cumulative effect of these errors,
constituted ineffective assistance of counsel.
A habeas petition based on ineffective assistance of counsel presents a
mixed question of law and fact that we review de novo. Sims v. Singletary, 155
F.3d 1297, 1304 (11th Cir. 1998). Under § 2254(d), a federal court may not grant
habeas relief on claims that were previously adjudicated in state court, unless the
state court’s adjudication “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court,” or “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented” in the state court.
28 U.S.C. § 2254(d)(1)-(2). A state court’s factual determinations are presumed
correct unless the petitioner can rebut that presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
“The ‘contrary to’ and ‘unreasonable application’ clauses of § 2254(d)(1)
are separate bases for reviewing a state court’s decisions.” Putman v. Head, 268
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F.3d 1223, 1241 (11th Cir. 2001). A state court’s decision is “contrary to” federal
law if (1) the court arrives at a conclusion opposite to that reached by the U.S.
Supreme Court on a question of law, or (2) the court confronts facts that are
“materially indistinguishable” from relevant Supreme Court precedent, but arrives
at a different result from that arrived at by the Supreme Court. Id. An
“unreasonable application” of federal law occurs when the state court either
(1) correctly identifies the legal rule from Supreme Court precedent but
unreasonably applies the rule to the facts of the case, or (2) “unreasonably extends,
or unreasonably declines to extend, a legal principle from Supreme Court case law
to a new context.” Id.
To succeed on an ineffective-assistance claim under Strickland v.
Washington, 466 U.S. 668, 687 (1984), a petitioner must show that (1) his
attorney’s performance was deficient, and (2) the deficient performance prejudiced
his defense. Under Strickland, counsel’s performance is deficient only if it falls
below an objective standard of reasonableness considering all the circumstances,
and a court considering a claim of ineffective assistance must apply a strong
presumption that counsel’s representation was “within the wide range of
reasonable professional assistance.” 466 U.S. at 688-90. With regard to the
prejudice prong, “[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
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have been different.” Id. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. “When a defendant
challenges a conviction, the question is whether there is a reasonable probability
that, absent the errors, the factfinder would have had a reasonable doubt respecting
guilt.” Id. at 695. To make this determination, we review “the totality of the
evidence before the judge or jury.” Id.
With regard to McKenzie’s claim relating to his trial counsel’s failure to
object to Williams’s hearsay testimony, the state court concluded that McKenzie’s
trial counsel’s performance was not “unreasonably deficient.” Strickland requires
only that a trial counsel’s performance be considered “deficient,” and thus, the
state court’s decision is arguably contrary to clearly established law on Strickland’s
deficiency prong. However, we need not decide if the state court’s ruling was
contrary to Strickland and therefore owed no deference under 28 U.S.C. 2254(d),
because we cannot say on de novo review that that McKenzie has established that
he received ineffective assistance of counsel as to the prejudice prong. See
Berghuis v. Thompkins, 130 S. Ct. 2250, 2265 (2010) (explaining that courts can
deny writs of habeas corpus by engaging in de novo review when it is unclear
whether AEDPA deference applies, because a petitioner is not be entitled to a writ
of habeas corpus if his or her claim is rejected on de novo review).
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McKenzie argues that he proved both deficient performance and prejudice
based on his trial counsel’s failure to object or to move to strike the testimony of
the state’s witness, Williams, who explained that it was only after the police told
him that another person, Coy Evans, had already told the police what happened on
the night of the murder of Derrick McKinney that he agreed to be a witness against
McKenzie. He argues that Williams’s testimony was not only double hearsay but
prejudicial because the hearsay evidence of Evans’s statement to the police
corroborated Williams’s version of the events surrounding the murder of
McKinney.
We need not resolve whether McKenzie’s counsel was deficient when he
failed to object to Williams’s testimony because we cannot say that McKenzie has
established that the error prejudiced him, i.e. that there is a reasonable probability
that, but for the failure to object, the jury would have had reasonable doubt
regarding McKenzie’s guilt. See Strickland, 466 U.S. at 697 (explaining that a
court need not address the performance component of a Strickland ineffective
assistance of counsel claim where the defendant fails to make a sufficient showing
of prejudice). By the time the allegedly prejudicial question was asked, Williams
had already testified consistently with three other witnesses as to (1) the motive for
the murder of McKinney; (2) McKinney being in the car with McKenzie;
(3) McKinney attempting to lead McKenzie to the individuals who had earlier in
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the day robbed McKenzie; and (4) McKinney being unable to find the robbers for
McKenzie. If anything, the testimony provided McKenzie’s trial counsel with a
new opportunity to attempt to impeach Williams by showing that Williams had at
first lied to the police, Williams only spoke to police after Evans implicated
Williams, and Evans was charged with murdering a police officer. Moreover,
McKenzie’s trial counsel used the testimony to argue in closing that Williams was
unreliable and that his testimony was motivated by pressure from the police.
Accordingly, the totality of the evidence before the jury was such that, even if
McKenzie’s trial counsel had objected, McKenzie did not establish Strickland
prejudice.
AFFIRMED.
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