[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
____________ ELEVENTH CIRCUIT
December 18, 2006
THOMAS K. KAHN
No. 06-11190
CLERK
___________
D.C. Docket No. 03-01347-CV-JSM-TGW
OBA CHANDLER,
Petitioner-Appellant,
versus
JAMES MCDONOUGH,
CHARLIE CRIST,
Respondents-Appellees.
_________________
On Appeal from the United States District Court
for the Middle District of Florida
_________________
(December 18, 2006)
Before ANDERSON, CARNES, and BARKETT, Circuit Judges.
PER CURIAM:
Oba Chandler was convicted of capital murder and sentenced to death in the
State of Florida on November 4, 1994. After his conviction and sentence were
affirmed on direct appeal, Chandler v. State, 702 So. 2d 186 (Fla. 1997), state
collateral relief was also denied and that denial was affirmed, Chandler v. State,
848 So. 2d 1031 (Fla. 2003). Chandler then filed a 28 U.S.C. § 2254 petition in
the United States District Court for the Middle District of Florida. That petition
was denied, Chandler v. Crosby, 454 F. Supp. 2d 1137 (M.D. Fla. 2006), and
Chandler has appealed that denial.
The only issue on which Chandler was granted a certificate of appealability
involves his claim that his trial counsel rendered ineffective assistance by failing
to move a second time for a change of venue. The facts and procedural history
relating to this claim are set out in the district court’s opinion. Id. at 1151 – 55.
To the extent Chandler contends that, given the evidence that was before the state
courts, their decision regarding this claim was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or that it “was based
on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding,” § 2254(d)(2), we reject that contention for the reasons
set out in the district court’s thorough treatment of the subject. Chandler, 454 F.
Supp. 2d at 1156 – 67. We add to that treatment only these additional thoughts.
First, the fact that any non-ineffective assistance claim relating to change of venue
and pretrial publicity may be procedurally barred does not, in turn, bar
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consideration of the claim that counsel was ineffective for failing to pursue that
claim at trial and on appeal. Those are two different claims. We have the
ineffective assistance claim before us now, and it is not procedurally barred.
Second, since the district court denied the petition in this case, we have
issued our en banc decision in United States v. Campa, 459 F.3d 1121 (11th Cir.
2006) (en banc). The Campa decision underscores the fact that the burden a
defendant bears when attempting to establish presumed prejudice is “an extremely
heavy one,” and reiterates that “[t]he presumed prejudice principle is rarely
applicable and is reserved for an extreme situation.” Id. at 1143 (internal marks
and citations omitted). Those principles make it difficult for a petitioner claiming
his counsel was ineffective for failing to move for a change of venue to establish
the requisite prejudice, which necessitates a showing that, at a minimum, “there is
a reasonable probability that the trial court would have, or at least should have,
granted a motion for change of venue if [petitioner’s] counsel had presented such a
motion to the court,” Meeks v. Moore, 216 F.3d 951, 961 (11th Cir. 2000). As
the district court concluded, “Chandler has not even come close to the sort of
evidentiary showing necessary to establish that his defense was prejudiced by
[trial counsel’s] failure to file a second change of venue motion.” Chandler, 454
F. Supp. 2d at 1166.
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We turn now to Chandler’s contention that the district court erred by not
granting him an evidentiary hearing at which he could present evidence on this
claim. He was given an evidentiary hearing on the claim in state court to the
extent that trial counsel and petitioner himself testified about this claim and their
pretrial reasoning and strategy concerning it. See id. at 1163 (recounting some of
their testimony); Chandler, 848 So. 2d at 1037. Chandler also proffered in the
state collateral proceeding a 195-page report in two parts by his expert on the
issue, media consultant Paul Wilson. That report not only contained Wilson’s
opinions but also detailed descriptions of the media coverage, including excerpts
from a large number of the stories about the case that were printed or broadcast.
Chandler, 454 F. Supp. 2d at 1157 – 62.
The state courts accepted as true the factual content of the Wilson report and
its attachments, insofar as they described the media coverage of the case. See
Chandler, 848 So. 2d at 1038 n.8 (noting that supplemental record contains the
Wilson report “regarding the extent and nature of pretrial publicity” and “we must
accept the factual allegations made by the defendant to the extent that they are not
refuted by the record”); State v. Chandler, No. CRC92–17438CFANO (Fla. Cir.
Ct. June 28, 2001) (state trial court order denying collateral relief) (“[T]he
defendant was permitted to supplement the record with the publicity he believed
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existed in Orange County.”). So did the district court, which discussed the
report’s contents in considerable detail. Chandler, 454 F. Supp. 2d at 1157 – 62.
Because Chandler cannot show that “the facts underlying his 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,” he cannot fit within the exceptions to §
2254(e)(2). As a result, that provision bars his contention that the district court
should have conducted an evidentiary hearing, if we find that he “failed to develop
the factual basis of a claim in State court proceedings.” 28 U.S.C. § 2254(e)(2);
see Holland v. Jackson, 542 U.S. 934, 652 – 53, 124 S. Ct. 2736, 2738 (2004)
(“Under the habeas statute, [the petitioner’s] statement could have been the
subject of an evidentiary hearing by the District Court, but only if respondent was
not at fault in failing to develop that evidence in state court, or (if he was at fault)
if the conditions prescribed by § 2254(e)(2) were met.”); Williams v. Taylor, 529
U.S. 420, 120 S. Ct. 1479 (2000). To the extent that there is any factual basis for
his claim other than that covered in the Wilson report, Chandler did fail to exercise
due diligence in developing it. In the state courts Chandler never pointed to any
other evidence that he would attempt to introduce if given the chance. He never
specified what additional evidence he might have.
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There is another reason why the district court did not err in failing to
conduct an evidentiary hearing on this claim. Except for the Wilson report, the
factual aspects of which the state courts and the district court took as true for
purposes of this claim, Chandler made no proffer to the district court of any
evidence that he would seek to introduce at a hearing. The failure to proffer any
additional evidence defeats Wilson’s argument that he was entitled to an
additional evidentiary hearing in federal court. See Drew v. Dept. of Corrections,
297 F.3d 1278, 1293 (11th Cir. 2002) (referring to “our clear precedent
establishing that such allegations are not enough to warrant an evidentiary hearing
in the absence of any specific factual proffer or evidentiary support”); Hill v.
Moore, 175 F.3d 915, 922 (11th Cir. 1999) (“To be entitled to an evidentiary
hearing on this matter [an ineffective assistance of counsel claim], petitioner must
proffer evidence that, if true, would entitle him to relief.”); see also Tejada v.
Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (“A petitioner is not entitled to an
evidentiary hearing, however, when his claims are merely conclusory allegations
unsupported by specifics.” (internal marks and citation omitted)).
For these reasons, we affirm the district court’s denial of Chandler’s petition
for a writ of habeas corpus.
AFFIRMED.
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