[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 20, 2007
No. 06-16232 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-01452-CV-ORL-31-KRS
WILLIE LEE SLATER,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 20, 2007)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Through counsel, appellant Willie Lee Slater, a state prisoner, appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas petition. During Slater’s
state court post-conviction proceedings, the state court held an evidentiary hearing
in which Slater proceeded pro se even though he asserted that he had retained
counsel for the hearing, but his counsel had not received notice of the hearing.
During the hearing, Slater questioned his former trial counsel, Barry Apfelbaum, in
regards to his ineffective-assistance-of-counsel claims. Prior to ruling, the state
court held an additional evidentiary hearing at which Slater was represented by
counsel. We granted a COA on the following issue:
Whether the district court erred when it failed to hold an evidentiary
hearing on appellant’s claims that trial counsel was ineffective for
failing to properly investigate or interview a potential alibi witness
and for convincing appellant not to testify on his own behalf.
On appeal, Slater argues that he is entitled to an evidentiary hearing in the district
court to remedy the state court’s denial of counsel and to develop an adequate
record to resolve his ineffective-assistance-of-counsel claims.
We review a district court's decision to grant or deny an evidentiary hearing
for abuse of discretion. McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir.
2005), cert. denied, 547 U.S. 1073, 126 S. Ct. 1828 (2006). After the enactment of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the
applicable federal habeas statute provides that:
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If the applicant has failed to develop the factual basis of a claim in
State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that--(A) the claim
relies on--(i) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously
unavailable; or (ii) a factual predicate that could not have been
previously discovered through the exercise of due diligence; and (B)
the facts underlying the claim would be sufficient to establish by clear
and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2254(e)(2). The provisions of §§ 2254(e)(2)(A) and (B) apply only
where a petitioner contributes “to the absence of a full and fair adjudication in state
court” by failing to develop a claim’s factual basis. Williams v. Taylor, 529 U.S.
420, 437, 120 S. Ct. 1479, 1491, 146 L. Ed. 2d 435 (2002). We have interpreted a
“failure to develop” as the petitioner’s lack of diligence in presenting the factual
bases of his habeas claims in state court or in seeking the opportunity to develop
evidence in a state hearing. Breedlove v. Moore, 279 F.3d 952, 959-60 (11th Cir.
2002). An evidentiary hearing, therefore, is not barred where the failure to develop
the factual basis is attributable to the state court’s refusal to provide any hearing.
Id. at 960. Even where a federal evidentiary hearing is not barred by a failure to
develop the facts, “it would still be appropriate to deny [a diligent petitioner] an
evidentiary hearing if such a hearing would not assist in the resolution of his
claim.” Id. at 960. Additionally, to be entitled to an evidentiary hearing on a
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claim, the petitioner must proffer additional evidence that, if true, would entitle
him to relief. Chandler v. McDonough, 471 F.3d 1360, 1362-63 (11th Cir. 2006),
cert. denied, 127 S. Ct. 2269 (2007).
After reviewing the record and reading the parties’ briefs, we conclude that
the district court did not err in applying a presumption of correctness to the state
court’s factual findings because Slater, in fact, received a full and fair hearing.
Slater’s claim that he did not receive a full and fair hearing is belied by the fact that
the state court conducted a second evidentiary hearing in which counsel
represented Slater, and Slater was given an opportunity to take further testimony
from Apfelbaum. In fact, Slater’s counsel further developed the factual basis by
re-calling Slater and presenting two additional witnesses even though he elected to
rely on the transcript of Apfelbaum’s testimony. Thus, any defect caused by the
absence of retained counsel and the requirement that Slater proceed pro se at the
first hearing was corrected when the state court held a second evidentiary hearing
at which counsel represented Slater. See Quince v. Crosby, 360 F.3d 1259, 1262
(11th Cir. 2004). Accordingly, we affirm the district court’s judgment denying
Slater’s 28 U.S.C. § 2254 habeas petition.
AFFIRMED.
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