[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15410 APRIL 13, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-00630-CV-BBM-1
BRUCE GLASS,
Petitioner-Appellant,
versus
ROSE WILLIAMS,
in her official capacity as
Warden of Scott State Prison,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 13, 2009)
Before DUBINA, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Petitioner/Appellant Bruce Glass, a state prisoner convicted of rape and
aggravated sexual battery, appeals through counsel the denial of his 28 U.S.C.
§ 2254 federal habeas petition as to his claim that the state violated his
constitutional rights when the state presented testimony at trial that Glass had
requested counsel when an officer served him with a warrant to collect DNA
evidence. The district court denied Glass’s petition based on its finding that his
claim was procedurally defaulted and that his claim of ineffective assistance of
counsel did not establish cause and prejudice to overcome the default. The district
court granted a certificate of appealability as to this issue.
On appeal, Glass argues that he satisfied the cause-and-prejudice test to
overcome the procedural default because he received ineffective assistance of
counsel when his counsel failed to raise his claim on appeal. Specifically, he
argues that he was prejudiced by his counsel’s performance because the state’s
introduction of the testimony that he requested an attorney negatively impacted his
character and credibility, the sole basis of his defense.
“When examining a district court’s denial of a § 2254 habeas petition, we
review questions of law and mixed questions of law and fact de novo, and findings
of fact for clear error.” Porter v. Attorney General, 552 F.3d 1260, 1267 (11th Cir.
2008) (quotation omitted).
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Under the doctrine of procedural default, “[f]ederal courts are barred from
reaching the merits of a state prisoner’s federal habeas claim where the petitioner
has failed to comply with an independent and adequate state procedural rule.”
Siebert v. Allen, 455 F.3d 1269, 1271 (11th Cir. 2006). “A petitioner may obtain
federal review of a procedurally defaulted claim if he can show both cause for the
default and actual prejudice resulting from the default.” Jones v. Campbell, 436
F.3d 1285, 1304 (11th Cir. 2006).
“Cause exists if there was some objective factor external to the defense that
impeded counsel’s efforts to comply with the State’s procedural rule.” Mize v.
Hall, 532 F.3d 1184, 1190 (11th Cir. 2008) (quotation and alteration omitted),
petition for cert. filed, (U.S. Jan. 23, 2009) (No. 08-8359). To establish prejudice,
a petitioner “must shoulder the burden of showing, not merely that the errors at his
trial created a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 1596,
(1982) (§ 2255 case); see also Murray v. Carrier, 477 U.S. 478, 494, 106 S. Ct.
2639, 2648, (1986) (describing the Frady standard by stating, “[s]uch a showing of
pervasive actual prejudice can hardly be thought to constitute anything other than a
showing that the prisoner was denied ‘fundamental fairness’ at trial.”).
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“A petitioner can establish cause by showing that a procedural default was
caused by constitutionally ineffective assistance of counsel under Strickland v.
Washington.” Payne v. Allen, 539 F.3d 1297, 1314 (11th Cir.) (quotation omitted),
petition for cert. filed, (U.S. Dec. 15, 2008) (No. 08-8823). In Strickland, the
Supreme Court set out a two-part inquiry for ineffective-assistance-of-counsel
claims. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984). To obtain relief under Strickland, a petitioner must show that (1) his
counsel’s performance was constitutionally deficient, and (2) the deficient
performance prejudiced him. See id. A habeas petitioner must satisfy both prongs
of the Strickland test. Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir.
2004).
In Doyle v. Ohio, the Supreme Court held that “use for impeachment
purposes of petitioners’ silence, at the time of arrest and after receiving Miranda
warnings, violated the Due Process Clause of the Fourteenth Amendment.” 426
U.S. 610, 619, 96 S. Ct. 2240, 2245, (1976). In Wainwright v. Greenfield, 474
U.S. 284, 295, 106 S. Ct. 634, 640-41, (1986), “[t]he Court later extended this
protection to post-Miranda invocations of the right to counsel.” Fugate v. Head,
261 F.3d 1206, 1222 (11th Cir. 2001). “If the prosecution violated the Greenfield
standard, then we must determine whether that error had substantial and injurious
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effect or influence in determining the jury’s verdict.” Id. at 1222-23 (quotation
omitted). This is the harmless-error standard applicable to Doyle and Greenfield
violations. See id.; Hill v. Turpin, 135 F.3d 1411, 1416-17 (11th Cir. 1998)
(applying this “harmless error standard” in the context of a Doyle violation).
Because we conclude from the record that the evidence of Glass’s guilt was
overwhelming, any error the state made at trial in eliciting that he had invoked his
right to counsel was harmless. Therefore, Glass failed to establish prejudice under
the cause-and-prejudice test for us to review his procedurally defaulted claim.
Accordingly, we affirm the district court’s judgment denying habeas relief.
AFFIRMED.
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