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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14638
Non-Argument Calendar
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D.C. Docket No. 6:15-cv-01869-ACC-DCI
WILLIAM ARTHUR BISHOP,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF
CORRECTIONS,
ATTORNEY GENERAL, STATE OF
FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(October 17, 2019)
Before WILSON, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:
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William Bishop is a Florida prisoner. He is serving 30 years’ imprisonment
for crimes connected to the molestation of a young girl near a pool at a Disney
resort. He appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a
writ of habeas corpus.
Bishop makes two arguments. He first says that his counsel was ineffective
for not impeaching his victim’s father, James Lanza, about a possible financial
interest that Lanza may have had in Bishop’s conviction. He then argues that the
district court failed to resolve his claim that his counsel was ineffective for failing
to seek a hearing to address the potential effect of pretrial publicity on his trial,
violating Clisby v. Jones,
960 F.2d 925 (11th Cir. 1992) (en banc).
We affirm the district court on the first point. We vacate and remand on the
second.
I.
28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), guides our analysis of a federal habeas petition.
Downs v. Sec’y, Fla. Dep’t of Corr.,
738 F.3d 240, 256 (11th Cir. 2013). And we
review de novo a district court’s denial of a federal habeas petition based on
ineffective assistance of counsel. Johnson v. Sec’y, DOC,
643 F.3d 907, 929 (11th
Cir. 2011).
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“Section 2254(d) reflects Congress’ decision to restrict federal courts’
authority to grant habeas relief to cases in which the state court’s decision
unquestionably conflicts with Supreme Court precedent.” Nance v. Warden, Ga.
Diagnostic Prison,
922 F.3d 1298, 1301 (11th Cir. 2019). Once a state court has
adjudicated a claim on the merits, a federal court may grant habeas relief only if
the state court’s decision was (1) contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court
of the United States, or (2) based on an unreasonable determination of the facts
given the evidence presented to the state court. 28 U.S.C. § 2254(d). To justify
federal habeas relief under these standards, “the state court’s decision must be so
lacking in justification that there was an error . . . beyond any possibility for
fairminded disagreement.”
Nance, 922 F.3d at 1301 (internal quotation mark
omitted).
As for ineffective assistance, the Sixth Amendment gives criminal
defendants the right to effective assistance of counsel. McMann v. Richardson,
397 U.S. 759, 771 (1970). To succeed on an ineffective-assistance claim, a
movant must show that (1) his attorney’s conduct was deficient, and (2) the
deficient conduct prejudiced his defense. Strickland v. Washington,
466 U.S. 668,
687 (1984).
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When considering whether counsel’s performance was deficient, we review
counsel’s actions in a “highly deferential” manner and apply “a strong presumption
. . . of reasonable professional assistance.”
Johnson, 643 F.3d at 928. To
overcome this presumption, a petitioner must show that “no competent counsel
would have taken the action that his counsel did take.”
Id. Then, to establish
prejudice, a petitioner must show “that, but for his counsel’s deficient
performance, there is a reasonable probability that the result of the proceeding
would have been different.”
Id.
Under these stacked standards of deference, showing that “a state court’s
application of Strickland was unreasonable . . . is all the more difficult.”
Downs,
738 F.3d at 258. For when “the highly deferential standards mandated by
Strickland and AEDPA both apply, they combine to produce a doubly deferential
form of review that asks only whether there is any reasonable argument that
counsel satisfied Strickland[’s] deferential standard.”
Id. (internal quotation mark
omitted). It is thus “a rare case in which an ineffective assistance of counsel claim
that was denied on the merits in state court is found to merit relief in a federal
habeas proceeding.”
Nance, 922 F.3d at 1303 (internal quotation mark omitted).
Bishop cannot overcome this double deference here, as the state court’s
finding that Bishop was not prejudiced by his counsel’s failure to impeach Lanza
about a possible financial motive does not fall within either of § 2254(d)’s relief
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standards. To start, the victim, JL, identified Bishop—both on the day of the incident
and in court—as the man who touched her. JL made her in-court identification after
testifying that she knew the difference between the truth and a lie and promised to
tell the truth. Her testimony tracked her videotaped child forensic interview from
the day of the incident. And although Bishop implies that JL was the only witness
to her being touched, witness David Silva Jr. corroborated JL’s testimony, swearing
that he saw Bishop touching JL.
To be sure, Bishop argues that Lanza had an incentive to tell JL to lie given a
possible financial interest in a lawsuit against the resort at which the crime occurred.
He claims that this evidence, if drawn out, would have undermined JL’s testimony.
But the prosecution did not hinge solely on JL’s testimony. Fellow resort-attendee
Silva Jr. corroborated JL’s story when he told his father, David Silva Sr., that he saw
Bishop touching JL. Silva Sr. then conveyed this information to resort lifeguard
Michael Charette, who in turn found Bishop with JL behind the shed. Further, all
three of them testified that they saw a man with JL before Lanza learned about the
incident; all three of them identified Bishop as that man in court; and none of them
have a purported financial interest in Bishop’s conviction.
To this Bishop asserts that Silva Jr.’s and Silva Sr.’s identifications are suspect
because they stem from repeatedly seeing his picture during their media
appearances. But Silva Sr. testified that his identification of Bishop was based on
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his observation of Bishop from the day of the incident, not from Bishop’s media
presence. Given all this, there is a reasonable argument that Bishop’s counsel
satisfied Strickland’s deferential standard because multiple uninterested witnesses
corroborated JL’s and Lanza’s testimony, and therefore any failure to impeach Lanza
does not undermine confidence in Bishop’s conviction, even if this failure
constituted deficient performance. See
Strickland, 466 U.S. at 687, 694, 697;
Downs, 738 F.3d at 258;
Johnson, 643 F.3d at 928. Bishop thus has not shown that
the state court’s finding was “so lacking in justification that there was an error . . .
beyond any possibility for fairminded disagreement.” See
Nance, 922 F.3d at 1301.
The district court properly denied relief.
II.
In Clisby, we held that when a district court fails to address all the claims in
a § 2254 petition, we “will vacate the district court’s judgment without prejudice
and remand the case for consideration of all remaining
claims.” 960 F.2d at 938
(noting that we will vacate and remand “whenever the district court has not
resolved all such claims” (emphasis added)). We defined a “claim for relief” in
Clisby as “any allegation of a constitutional violation.”
Id. at 936.
In Williams v. Griswald, we held that it is “well established that prejudicial
publicity may deprive a criminal defendant of the constitutional right to a fair
trial.”
743 F.2d 1533, 1537 (11th Cir. 1984). To prevail on a pretrial-publicity
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claim, a defendant must show that pretrial publicity caused either actual or
presumed prejudice. Mills v. Singletary,
63 F.3d 999, 1009 (11th Cir. 1995).
We conclude that the district court committed Clisby error because Bishop
asserted a constitutional claim—i.e., his counsel should have moved for a bias-
determination hearing to address the effect that the media may have had on his
trial—that the district court did not address when it dismissed Bishop’s petition. See
Clisby, 960 F.2d at 936, 938;
Williams, 743 F.2d at 1537. Indeed, Bishop’s claim
was part of his overall ground for relief that his counsel was ineffective for failing
to impeach witnesses for their biases and alternative motives, and Clisby suggests
that we must remand whenever a district court fails to address and resolve all
constitutional claims—including claims that the petitioner groups into an overall
ground for relief—regardless of harmless error. See
Clisby, 960 F.2d at 934–36,
938.
Though the state argues that the district court inherently addressed the factual
basis for Bishop’s pretrial-publicity claim when it addressed his overall ground for
relief, the district court’s only finding related to that issue was that Bishop’s counsel
cross-examined Silva Jr. and Silva Sr. about their media appearances and
identification of Bishop. The district court did not address the specific issue of
whether counsel was ineffective for failing to seek a hearing on whether these media
appearances caused either actual or presumed prejudice and thus deprived Bishop of
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his constitutional right to a fair trial. See
Mills, 63 F.3d at 1009;
Williams, 743 F.2d
at 1537. In fact, the state concedes that the district court did not address this issue.
The court thus committed Clisby error because it did not specifically address
Bishop’s claim that his counsel was ineffective for failing to seek a hearing to
address the potential effect of pretrial publicity on Bishop’s trial. We therefore
vacate the district court’s denial of habeas relief on this discrete issue and remand
to the district court for consideration.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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