Bruce Glass v. Rose Williams , 325 F. App'x 752 ( 2009 )


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  •                                                             [DO NOT PUBLISH]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).
    2
    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.”).
    3
    “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
    4
    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.
    5