Miguel Angel Duran v. Warden Victor Walker , 223 F. App'x 865 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 29, 2007
No. 06-15758 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-02723-CV-TWT-1
MIGUEL ANGEL DURAN,
Petitioner-Appellant,
versus
WARDEN VICTOR WALKER,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 29, 2007)
Before BIRCH, WILSON and FAY, Circuit Judges.
PER CURIAM:
Miguel Angel Duran, a Georgia prisoner proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. Duran raises
two issues on appeal: (1) whether there was sufficient evidence to support his
convictions; and (2) whether his trial counsel was ineffective for failing to call an
expert witness. For the reasons set forth more fully below, we affirm.
I. Procedural and Factual History
Duran, who is serving a 12-year sentence for aggravated sexual battery and
rape, filed a § 2254 petition in the district court alleging, among other things, that
the evidence was insufficient to support his convictions and that he received
ineffective assistance of his trial counsel. As to his insufficiency of the evidence
claim, Duran alleged that (1) despite the victim’s testimony that she had no bruises
on her body prior to the rape, two other witnesses testified that the victim did have
bruises on her body prior to the rape; (2) while the victim testified that she
screamed loudly during the rape, two witnesses that lived in the house where the
rape occurred testified that they did not hear the victim scream; and (3) the state’s
expert witness testified that there was no evidence of semen on the victim’s body
and that the bruises on her body could not be directly attributed to Duran.
Accordingly, Duran claimed that the jury’s verdict was inconsistent with the
evidence presented at trial. Concerning his ineffective-assistance-of-counsel claim,
he asserted that his trial counsel was ineffective for failing to call an expert
toxicologist as a witness in support of his defense that he was intoxicated from
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paint fumes at the time he provided statements to police. Duran maintained that,
had his counsel called an expert toxicologist, there was a reasonable probability
that the court would have suppressed his statements to police.
Prior to trial, the state trial court held a suppression hearing, pursuant to
Jackson v. Denno1, in order to determine the admissibility of Duran’s statements
that he made during an interview with police. At the hearing, Eric Edkin, a
detective for the Gwinnett County Police Department, testified that he interviewed
Duran and read him Miranda2 warnings at the beginning of the interview.
Detective Edkin stated that Duran did not appear to be under the influence of
alcohol or narcotics during the interview, and that Duran responded to Edkin’s
questions coherently.
Duran also testified at the suppression hearing. He stated that he worked as
a painter and had been painting with oil-based paints for 12 or 13 hours on the day
of his interview with police. He explained that, when he arrived home from
painting, there were police officers at his house. Duran testified that he told the
officers that he had been painting all day and “was feeling a little crazy.” He stated
that he was confused during the interview because of his exposure to the paint
1
Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
2
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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chemicals and the police officer’s poor Spanish speaking skills.
Also during the suppression hearing, the state played a videotape of the
officers’ interview of Duran. The trial court determined that, based upon the
videotape and the testimony, Duran knew and understood his rights, and provided
voluntary statements to police. Thus, the court denied the motion to suppress and
ruled that Duran’s statements were admissible at trial.
At trial, the victim testified that she rented a room in Duran’s house. The
victim stated that, on the night of the rape, Duran had been out drinking and he
came to the victim’s room when he came home. She further testified that Duran
put his hand over her mouth, forced her legs open, inserted his penis into her
vagina, placed his mouth on her vagina, and penetrated her vagina with his fingers,
all without her consent. She explained that she resisted the encounter and
screamed for help. On cross-examination, the victim testified that there were four
other people in the house during the incident and that they were downstairs from
her room. At the end of the cross-examination, Duran’s counsel had the following
exchange with the victim:
Duran’s counsel: But, in fact, [Duran] didn’t have sex with you; isn’t
that correct?
Victim: Yes, yes. He had - -
Duran’s counsel: No further questions.
On re-direct, the victim stated that she did not have any bruises on her body at the
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time of the incident.
Holly West, a medical examiner for the Gwinnett Sexual Assault Center,
testified that she performed a sexual assault examination on the victim. West
identified pictures that she took of the victim during the examination, which
showed bruises on the victim’s chin and neck. West stated that she did not find
any semen on the victim. West also testified that the victim had injuries to her
vagina. On cross-examination, West stated that she could not ascertain the identity
of the object that injured the victim.
Eva Avila testified as a witness for Duran. Avila stated that she lived in
Duran’s house at the time of the incident. Avila explained that she saw the victim
the morning after the incident and she saw that the victim was crying and had
bruises on her body. Avila testified that she was downstairs during the night of the
incident and did not hear any screams.
Azala Alejandro, another resident living at Duran’s house during the
incident, also testified for the defense. Duran’s attorney asked Alejandro whether
she saw the victim “prior to the alleged rape, and did she have any marks or bruises
on her body.” Alejandro answered “yes.” Alejandro also testified that she did not
hear any screams on the night of the incident. Alejandro stated that she found the
victim crying in her room after the incident occurred and that the victim told
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Alejandro that she hoped “this never happens to your children, what he did to me.”
Duran testified in his own defense. He stated that he never had sex with the
victim on the date of the alleged rape, but that he only had kissed and touched her.
He testified that the victim never screamed during their encounter. Duran also
stated that, after the encounter with the victim, he went to work painting all day.
He explained that, when he arrived home from work, police officers were at his
house and he was confused about why the officers were there. On cross-
examination, the state played the videotape of Duran’s interview with the officers,
and the court allowed Duran, over objection from the state, to explain his actions
during the interview. Duran stated that he “had been working with paint with
chemicals, thinner, for 12 to 13 hours. That means that I was not feeling very well
when they were interviewing me at that time.”
The jury found Duran guilty of rape and aggravated sexual battery. The
court sentenced Duran to 12 years’ imprisonment, followed by 8 years’ probation.
Duran moved for a new trial, but the court denied his motion. Duran then appealed
his convictions and the denial of his motion for a new trial to the Georgia Court of
Appeals.
On direct appeal, Duran argued, among other things, that the evidence was
insufficient to support his conviction and that his counsel was ineffective for
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failing to call an expert to testify concerning the effects of paint fumes on his
mental state during the police interview. See Duran v. State, 619 S.E.2d 388, 390-
91 (Ga. Ct. App. 2005). The court made the following findings of fact:
Viewed in the light most favorable to the verdict, the evidence
shows that on July 26, 2000 the victim was living in a rented room in
Duran’s house. That morning, Duran returned to the residence after a
night of drinking and entered the victim’s bedroom with the intent of
having sex with her. He started touching her, forcing her legs apart
and holding her face so she would not yell, and placed his mouth upon
and inserted his penis and finger into her vagina. She resisted and
began to scream. After the encounter, she left the residence in tears.
On the night of his arrest, Duran was taken to the Gwinnett
County Police Department for a videotaped interrogation. The
questions were asked and answered in both English and Spanish,
depending upon Duran’s need for translation. At the outset of the
interrogation, he was instructed of his Miranda rights in Spanish, after
which he agreed to answer questions without the presence of counsel.
Id. at 390.
As to Duran’s sufficiency of the evidence argument, the court cited to
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and
found that the evidence was sufficient for a rational trier of fact to find Duran
guilty of rape and aggravated sexual battery beyond a reasonable doubt because
(1) the victim’s testimony establishing forcible penetration was alone sufficient to
sustain the conviction; (2) the medical examiner’s testimony indicated that the
victim’s wounds were consistent with her account of sexual assault and indicated
forced penetration; and (3) the jury was well within its province to disbelieve the
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testimony of Duran and the other witnesses. Duran, 619 S.E.2d at 390-91.
With regard to Duran’s ineffective-assistance-of-counsel argument, the court
found that there was sufficient evidence to support the trial court’s finding that
Duran’s custodial statements were voluntarily given. Id. The court specifically
determined that (1) Duran’s Miranda warnings were proper; (2) Duran indicated
that he understood his rights during the interview and indicated that he was willing
to cooperate without the presence of counsel; and (3) the police officer testified at
the suppression hearing that Duran responded to the questions coherently, he did
not appear to be under the influence of alcohol or drugs, and that his statements
were voluntarily given. Id. The court thus concluded that, because Duran’s
statements were voluntary, he could not show that he was “prejudiced by his
counsel’s failure to call an expert to provide cumulative evidence about the alleged
effects of paint fumes . . . . Such testimony would not have changed the fact that
the trial court properly admitted the custodial statements . . . .” Id. In so finding,
the court cited Johnson v. State, 570 S.E.2d 344, 345 (Ga. Ct. App. 2002), which in
turn cited the ineffective-assistance-of-counsel standard set forth in Strickland.
Duran, 619 S.E.2d at 391-92.
Based upon the above-detailed record, the magistrate judge recommended
denying Duran’s § 2254 petition. Concerning Duran’s sufficiency of the evidence
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claim, the magistrate found that the state court cited and relied upon the proper
controlling Supreme Court authority, Jackson v. Virginia, in concluding that the
evidence was sufficient to support Duran’s convictions. The magistrate also found
that Duran had not provided clear and convincing evidence to dispute the state
court’s factual findings, and, thus concluded that the state court’s decision was not
based on an unreasonable determination of the facts in light of the evidence
presented.
As to Duran’s claim of ineffective assistance of trial counsel, the magistrate
determined that, while the state court did not explicitly cite Strickland, it utilized
the proper standard from Strickland when it found that Duran was not prejudiced
by his counsel’s failure to call an expert witness. The magistrate found that Duran
had not offered evidence disputing the state court’s factual findings that his
statements were voluntary and that he was not prejudiced by counsel’s failure to
call an expert witness. The magistrate also noted that Duran could not show that
he was prejudiced because he did not point to any evidence that established that he
was intoxicated at the time he gave his custodial statements and he failed to
sufficiently develop his argument.
Duran objected to the magistrate’s report and recommendation, reiterating
the arguments he presented in his § 2254 petition. Over Duran’s objection, the
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district court adopted the magistrate’s report and recommendation and denied
Duran’s § 2254 petition. Duran filed a notice of appeal, which the district court
construed as an application for a certificate of appealability (“COA”). The district
court granted Duran a COA on the following two issues: (1) whether there was
sufficient evidence to support Duran’s convictions; and (2) whether Duran
received ineffective assistance of his trial counsel.
II. Analysis
We review a district court’s grant or denial of a § 2254 petition de novo,
while the court’s factual findings are reviewed for clear error. See Sims v.
Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). Mixed questions of law and
fact, including ineffective assistance of counsel claims, are reviewed de novo. Id.The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-32, 110 Stat. 1214 (1996), governs this appeal because Duran filed his
§2254 petition after the effective date of the AEDPA. As amended by the AEDPA,
28 U.S.C. § 2254(d) forbids federal courts from granting habeas relief on claims
that were previously adjudicated in state court, unless the adjudication was
(1) “contrary to, or involved an unreasonable application of, clearly established
federal law, as determined by the United States Supreme Court,” or (2) “based on
an unreasonable determination of the facts in light of the evidence presented in the
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State court proceeding.” 28 U.S.C. § 2254(d). A state court decision is “contrary
to” clearly established federal law if either “(1) the state court applied a rule that
contradicts the governing law set forth by Supreme Court case law, or (2) when
faced with materially indistinguishable facts, the state court arrived at a result
different from that reached in a Supreme Court case.” Putman v. Head, 268 F.3d
1223, 1241 (11th Cir. 2001). An “unreasonable application” of clearly established
federal law may occur if the state court “identifies the correct legal rule from
Supreme Court case law but unreasonably applies that rule to the facts of the
petitioner’s case.” Id. “An unreasonable application may also occur if a state court
unreasonably extends, or unreasonably declines to extend, a legal principle from
Supreme Court case law to a new context.” Id.Moreover, a state court’s factual findings are presumed correct, and the
petitioner can rebut them only by clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1). As such, for a state court’s adjudication to result in an unreasonable
determination of the facts in light of the evidence presented, “[n]ot only must the
factual determination have been unreasonable, but the state court’s factual findings
must be shown unreasonable by clear and convincing evidence.” Callahan v.
Campbell, 427 F.3d 897, 926 (11th Cir. 2005), cert. denied, 127 S.Ct. 427 (2006).
A. Sufficiency of the Evidence
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Duran argues on appeal that the evidence produced at his trial was
insufficient to support his convictions and that the jury’s verdict was inconsistent
with the evidence presented at trial. Duran points to four specific facts that he
claims do not support his convictions: (1) the victim testified that she did not have
any bruises on her body prior to the rape, but Avila and Alejandro testified that
they each saw bruises on the victim’s body before the rape occurred; (2) the
victim’s testimony, that she screamed loudly during the rape, was contradicted by
Avila’s and Alejandro’s testimonies that they were in the house at the time of the
rape and did not hear any screams; (3) there was no physical evidence to connect
him with the rape, especially in the light of West’s testimony that there was no
semen found during the sexual assault examination of the victim and the wounds
on the victim could not be directly linked to Duran; and (4) when his counsel asked
the victim whether she had sex with Duran, the victim answered “no.” Duran also
broadly states that the state appellate court’s decision was contrary to, or involved
an unreasonable application of, Jackson v. Virginia, and that the state court’s
determination of the facts in light of the evidence presented was objectively
unreasonable. Accordingly, Duran states that he is entitled to federal habeas relief.
In Jackson v. Virginia, the Supreme Court held that, when reviewing the
sufficiency of the evidence, the “critical inquiry” is “whether, after viewing the
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evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89 (emphasis in original). The
Supreme Court noted that it is the duty of the trier of fact “to resolve conflicts in
the testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts,” and a reviewing court may not substitute its judgment as to
whether it believes the evidence to be sufficient to sustain a conviction. Id.In Georgia, “[a] person commits the offense of rape when he has carnal
knowledge of . . . [a] female forcibly and against her will.” O.C.G.A. § 16-6-
1(a)(1). “Carnal knowledge in rape occurs when there is any penetration of the
female sex organ by the male sex organ.” O.C.G.A. § 16-6-1(a). “A person
commits the offense of aggravated sexual battery when he or she intentionally
penetrates with a foreign object the sexual organ or anus of another person without
the consent of that person.” O.C.G.A. § 16-6-22.2(b).
Here, to the extent that Duran argues that the sufficiency-of-the-evidence
standard used by the Georgia Court of Appeals was contrary to, or an unreasonable
application of, clearly established federal law, his argument is without merit. In
reviewing Duran’s sufficiency claim, the state appellate court relied upon the
standard set forth in Jackson, and this standard is the proper one for reviewing
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appellate challenges to the sufficiency of the evidence. See Duran, 619 S.E.2d at
390; see also Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Moreover, the
state court properly found, as discussed in more detail below, that the evidence
produced at Duran’s trial was sufficient for a rational trier of fact to find Duran
guilty beyond a reasonable doubt. See Duran, 619 S.E.2d at 390-91. Thus, Duran
is ineligible for habeas relief under the first prong of § 2254(d).
The crux of Duran’s argument centers on the second prong of § 2254(d): that
the state court’s decision 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). It is well established, however, that a federal court will presume that
the state court’s factual determinations were correct, and a petitioner may rebut
that presumption only with clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1). Here, the state court determined that (1) Duran entered the victim’s
room with the intent of having sex with her; (2) Duran touched the victim, forced
her legs apart, and held her face so that she would not yell; and (3) Duran inserted
his finger and penis into the victim’s vagina while the victim resisted. Duran, 619
S.E.2d at 390. As the state appellate court recognized, the victim’s testimony as to
forcible penetration was alone sufficient to support the conviction, and Duran’s
arguments concerning the discrepancies between the victim’s testimony and the
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witnesses’s testimonies do not amount to clear and convincing evidence sufficient
to overcome the presumption of correctness of the state court’s factual findings. It
was within the province of the jury to weigh the credibility of all the witnesses
testimony and to determine that the victim’s testimony was credible. See Jackson,
443 U.S. at 318-19, 99 S.Ct. at 2788-89 (explaining that it is the duty of the trier of
fact “to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts”). Thus, any discrepancies
between the victim’s testimony and the testimonies of Avila and Alejandro
concerning the victim’s bruising or screaming were properly resolved by the jury
as the trier of fact and, further, the state appellate court correctly deferred to the
jury’s credibility determinations.
Similarly, Duran’s argument that there was no physical evidence to link him
to the offense is also without merit. Although West could not directly link Duran
to the crime, she testified at trial that the victim had bruises and wounds that were
consistent with rape. See Duran, 619 S.E.2d at 391. In light of that evidence, and
the victim’s own testimony, there was sufficient evidence to support the jury’s
verdict, even though the medical expert testified that she did not find semen on the
victim and could not link the victim’s wounds directly to Duran.
Lastly, as to Duran’s assertion that the victim actually testified that Duran
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did not have sex with her, Duran’s argument does not amount to clear and
convincing evidence to rebut the presumption that the state appellate court
correctly determined that Duran did forcibly penetrate the victim. In support of his
argument, Duran points to the transcript of his counsel’s cross-examination of the
victim:
Duran’s counsel: But, in fact, [Duran] didn’t have sex with you; isn’t
that correct?
Victim: Yes, yes. He had - -
Duran’s counsel: No further questions.
This exchange between Duran’s counsel and the victim is not clear and convincing
evidence that Duran did not have sex with the victim because Duran’s counsel
never allowed the victim to finish her statement. In light of the fact that the victim
testified in Spanish and had her testimony interpreted, the transcript is not clear as
to whether the victim was answering Duran’s counsel’s question in the affirmative
or was acknowledging counsel’s question before she further explained her answer.
As such, it appears that Duran is taking the victim’s testimony out of context in an
effort to support his position that no rape occurred. Such deceptive reliance on the
victim’s trial testimony, however, is not sufficient to rebut the state court’s factual
finding that a rape actually occurred.
Accordingly, the state appellate court’s finding that there was sufficient
16
evidence to support Duran’s convictions was not based on an unreasonable
determination of the facts in light of the evidence presented at trial.
B. Ineffective Assistance of Counsel
Duran argues that his trial counsel was ineffective for failing to call an
expert witness at trial to testify regarding the effects that the paint fumes had on
Duran’s mental state at the time he gave statements to the police. Duran contends
that, had an expert testified, there was a reasonable probability that his statements
to police would have been suppressed or that the expert’s testimony would have
bolstered his involuntary intoxication defense. He further asserts that the expert’s
testimony would have made the jury more inclined to disregard his statements to
police because juries tend to always believe experts over the testimony of
defendants. Duran also broadly argues that the state court’s decision was contrary
to, or an unreasonable application of, Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), and was an unreasonable determination of the
facts in light of the evidence presented at trial. Accordingly, he argues that this
Court should grant him federal habeas relief.
The Sixth Amendment provides that a criminal defendant shall have the
right to “the assistance of counsel for his defense.” U.S. Const. amend. VI. When
a convicted defendant claims that his counsel’s assistance was ineffective, the
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defendant must show that (1) counsel’s performance was deficient, and (2) the
deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.
Ct. at 2064. “For performance to be deficient, it must be established that, in light
of all the circumstances, counsel’s performance was outside the wide range of
professional competence.” Putman, 268 F.3d at 1243. Reviewing courts must be
highly deferential in reviewing a counsel’s performance, and must utilize the
strong presumption that counsel’s performance was reasonable. Chandler v.
United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). “[B]ecause
counsel’s conduct is presumed reasonable, for a petitioner to show that the conduct
was unreasonable, a petitioner must establish that no competent counsel would
have taken the action that his counsel did take.” Id. at 1315. Under the prejudice
prong, the defendant must show “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694, 104 S. Ct. 2068.
Here, the state court’s decision was not contrary to, or an unreasonable
application of, clearly established law. First, while the state court did not expressly
cite Strickland, it nonetheless cited Johnson v. State, 570 S.E.2d 344, 345 (Ga. Ct.
App. 2002), which in turn cited the ineffective-assistance-of-counsel standard set
forth in Strickland. See Duran, 619 S.E.2d at 391-92. Moreover, the state court
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analyzed Duran’s claim in order to determine whether he suffered any prejudice as
a result of his counsel’s actions. Id. at 391. Thus, the state court correctly
identified Strickland as the controlling law and properly applied it to Duran’s
ineffective-assistance-of-counsel claim. See Robinson v. Moore, 300 F.3d 1320,
1343 (11th Cir. 2002) (holding that, “[i]t is well established that the Supreme
Court’s decision in Strickland is the controlling legal authority to be applied to
ineffective assistance of counsel claims”) (quotation omitted). Further, Duran does
not argue, and the record does not suggest, that the facts of this case are materially
indistinguishable from the facts in Strickland. See Putman, 268 F.3d at 1241.
To the extent that Duran argues on appeal that the state court’s decision
“was based on an unreasonable determination of the facts in light of the evidence
presented,” he has not met his burden of proving by clear and convincing evidence
that the state court’s factual findings were incorrect. See 28 U.S.C. § 2254(d)(2),
(e)(1). At the suppression hearing, Detective Edkin testified that Duran did not
appear to be under the influence of alcohol or narcotics during the interview, and
he responded to Edkin’s questions coherently. The trial court also viewed a
videotape of Duran’s interview. Thus, there was sufficient evidence to support the
trial court’s conclusion that Duran’s statements were knowing and voluntary, and
Duran offered no evidence to show that he actually was intoxicated or that his
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statements were otherwise involuntary. Moreover, in light of the fact that the trial
court determined at the pre-trial suppression hearing that Duran’s custodial
statements were voluntary, it would have served no purpose for counsel to call an
expert witness at trial in an effort to show that Duran’s mental state at the time of
the police interview rendered his statements involuntary. Therefore, counsel had
no grounds upon which to challenge the voluntariness of his statements, and
counsel cannot be deemed ineffective for failing to raise an issue that has no merit.
Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990).
Furthermore, other than his speculative assertion that the trial court would
have suppressed his statements had his counsel called an expert witness to testify
about the effects of inhaling paint fumes, Duran offers no evidence to show that an
expert would have caused the trial court to suppress his statements, especially since
the trial court already had found during the pre-trial suppression hearing that his
statement was voluntary. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064(explaining that, to establish ineffective assistance of counsel, a counsel’s deficient
performance must have prejudiced the defendant). Similarly, Duran’s claim that
an expert witness would have prompted the jury to believe his testimony and
disregard the statements he made during the police interview is conclusory and
speculative, and does not amount to a showing of prejudice. See Tejada v. Dugger,
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941 F.2d 1551, 1559 (11th Cir. 1991) (explaining that a petitioner is not entitled to
an evidentiary hearing or federal habeas relief on his ineffective-assistance-of-
counsel claims where the claims are conclusory or wholly incredible). Duran thus
failed to satisfy either prong of the Strickland standard because he did not show
that his counsel’s decision not to call an expert witness was deficient or that, to the
extent the decision was deficient, he suffered prejudice as a result. See Strickland,
466 U.S. at 687, 104 S. Ct. at 2064 (holding that, “[u]nless a defendant makes both
showings, it cannot be said that the conviction . . . resulted from a breakdown in
the adversary process that renders the result unreliable”).
Duran has not met his burden under 28 U.S.C. § 2254(d). In light of the
foregoing, the district court’s denial of Duran’s § 2254 petition is
AFFIRMED.
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