[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 27, 2007
No. 06-15061 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00164-CV-BAE-4
TEXACO TEMPLE,
Petitioner-Appellant,
versus
WARDEN CALVIN MORTON,
ATTORNEY GENERAL THURBERT BAKER,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(July 27, 2007)
Before ANDERSON, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Texaco Temple, a Georgia prisoner, filed a pro se petition, pursuant to 28
U.S.C. § 2254, challenging his state convictions for aggravated assault and
possession of a firearm by a convicted felon. In his petition, Temple made various
claims relating to his trial counsel’s failure to introduce a gunshot residue analysis
that indicated that Temple did not have gunshot residue on his hands when he was
tested immediately following the incident that resulted in his conviction. This
Court granted a certificate of appealability (“COA”) as to “(1) Whether the results
of the firearms residue analysis were ‘presented in the State court proceeding’
under § 2254(d)(2); (2) If so, whether the district court erred in finding that trial
counsel was not ineffective for failing to introduce the results of the firearms
residue analysis at trial; and (3) Whether appellant’s appellate counsel was
ineffective for failing to call trial counsel to testify at the motion for new trial
hearing.”
“When reviewing the district court’s denial of a habeas petition, we review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). As
amended by the AEDPA, 28 U.S.C. § 2254(d) forbids federal courts from granting
habeas relief on claims that were previously adjudicated on the merits in state
court, unless the adjudication
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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). “[A] federal habeas court making the ‘unreasonable
application’ inquiry should ask whether the state court’s application of clearly
established law was objectively unreasonable.” Williams v. Taylor, 529 U.S. 362,
409, 120 S.Ct. 1495, 1521 (2000). Furthermore, we have stated that “[i]t is the
objective reasonableness, not the correctness per se, of the state court decision that
we are to decide.” Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001).
Regarding factual findings, 28 U.S.C. § 2254(e)(1) provides that “a determination
of a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1).
The United States Constitution provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defense.” U.S. Const. amend. VI. The benchmark for judging a claim of
ineffective assistance of counsel is whether counsel’s performance so undermined
the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104
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S.Ct. 2052, 2064 (1984). To make such a showing, a prisoner must prove two
things. Id. at 687, 104 S.Ct. at 2064. First, the prisoner must show that counsel’s
performance was deficient. Second, the prisoner must establish that the deficient
performance prejudiced the defense. Id. “Counsel’s competence . . . is presumed,
and the defendant must rebut this presumption by proving that his attorney’s
representation was unreasonable under prevailing professional norms and that the
challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S.
365, 384, 106 S.Ct. 2574, 2588 (1986) (citation omitted). There is a strong
presumption that counsel’s conduct fell within the range of reasonable professional
assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. If the record is
incomplete or unclear about counsel’s actions, then it is presumed that counsel
exercised reasonable professional judgment. Chandler v. United States, 218 F.3d
1305, 1314 n.15 (11th Cir. 2000) (en banc).
A. Ineffective Assistance of Trial Counsel
The gunshot residue analysis does not appear in the state court records until
it was “proffered,” but “not admitted as evidence,” after the state court had
determined that Temple’s second habeas petition was to be dismissed as
successive. This proffer of the gunshot residue analysis is insufficient because it
occurred after the direct appeal and first habeas courts had already addressed the
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claim, and, therefore, Temple did not present the gunshot residue analysis in any
proceeding where the state court addressed the merits of Temple’s ineffective-
assistance-of-trial-counsel claim. See 28 § 2254(d)(2). Temple’s failure to present
the gunshot residue analysis made it reasonable for the Georgia Court of Appeals
to conclude that Temple had failed to show that his trial counsel had access to, but
failed to present, the gunshot residue analysis. See 28 U.S.C. § 2254(d)(2).
Therefore, it was reasonable for the Georgia Court of Appeals to hold that Temple
failed to show that his counsel had been deficient. See 28 U.S.C. § 2254(d)(1).
Accordingly, we will not disturb the Georgia Court of Appeals’s finding that
Temple’s ineffective assistance of trial counsel claim failed. See id.; Strickland,
466 U.S. at 687, 104 S.Ct. at 2064.
B. Ineffective Assistance of Appellate Counsel
The Supreme Court has held that the Strickland analysis also applies to
claims of ineffective assistance of appellate counsel. Smith, 528 U.S. at 287-88,
120 S.Ct. at 765. In addition, we have stated that “[w]hich witnesses, if any, to
call, and when to call them, is the epitome of a strategic decision, and it is one that
we will seldom, if ever, second guess.” See Waters v. Thomas, 46 F.3d 1506, 1512
(11th Cir. 1995).
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The state court reviewing Temple’s first habeas proceeding reasonably
found that Temple failed to show that his appellate counsel was ineffective.
Temple’s appellate counsel testified that he had a strategic reason for not calling
Temple’s trial counsel to testify at the motion for a new trial. However, Temple
did not cross-examine his appellate counsel or present any evidence that his
appellate counsel’s actions were not sound strategy. Therefore, Temple failed to
show that his representation was unreasonable and did not constitute sound
strategy. Accordingly, it was reasonable for the state court to find that Temple had
failed to show that his appellate counsel was ineffective. See § 2254(d)(1);
Kimmelman, 477 U.S. at 384, 106 S.Ct. at 2588; see also Strickland, 466 U.S. at
689, 104 S.Ct. at 2065. Thus, we affirm the district court’s dismissal of Temple’s
§ 2254 habeas petition.
AFFIRMED.
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