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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-15223
Non-Argument Calendar
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D.C. Docket No. 5:16-cv-00063-WTH-PRL
WAYNE EDWARD DRIGGERS,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 30, 2020)
Before LUCK, FAY, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Wayne Driggers, a Florida prisoner proceeding pro se, 1 appeals the district
court’s denial of his
28 U.S.C. § 2254 petition for writ of habeas corpus. Driggers
seeks to vacate his 2012 Florida convictions for attempted sexual battery of a child
under 12 years’ old and for lewd and lascivious exhibition. No reversible error has
been shown; we affirm. 2
Driggers was found guilty after a jury trial. The state court sentenced
Driggers to a total of 35 years’ imprisonment. Driggers’s convictions and sentence
were affirmed on direct appeal. See Driggers v. Florida,
121 So.3d 1058 (Fla.
Dist. Ct. App. 2013) (unpublished table decision).
Driggers filed a state habeas petition challenging his convictions and
sentence. The state habeas court denied Driggers relief after conducting an
evidentiary hearing. The state appellate court affirmed. See Driggers v. Florida,
179 So.3d 336 (Fla. Dist. Ct. App. 2015) (unpublished table decision).
1
We construe liberally pro se pleadings. See Tannenbaum v. United States,
148 F.3d 1262,
1263 (11th Cir. 1998).
2
Driggers’s motion to file a reply brief out of time is GRANTED.
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Driggers timely filed this federal habeas petition. The district court
dismissed the petition on the merits. We granted a certificate of appealability on
this issue: “Whether the district court erred by denying Claims 1 and 4 of Mr.
Driggers’s
28 U.S.C. § 2254 habeas corpus petition, after determining that he
failed to show that the state court’s rejection of those claims was contrary to, or an
unreasonable application of, Strickland v. Washington,
466 U.S. 668 (1984).”
When reviewing the district court’s denial of a section 2254 habeas petition,
“we review questions of law and mixed questions of law and fact de novo, and
findings of fact for clear error.” Rambaran v. Sec’y, Dep’t of Corr.,
821 F.3d
1325, 1330 (11th Cir. 2016).
Under
28 U.S.C. § 2254, when the merits of a habeas claim have been
already adjudicated in state court, our review is highly deferential to the state court.
Crowe v. Hall,
490 F.3d 840, 844 (11th Cir. 2007). To obtain habeas relief,
Driggers must show that the state court’s ruling “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or . . . was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” See
28 U.S.C. § 2254(d); Crowe,
490 F.3d at 844. Moreover, the
state court’s findings of fact “shall be presumed to be correct” and the habeas
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petitioner bears “the burden of rebutting the presumption of correctness by clear
and convincing evidence.” See
28 U.S.C. § 2254(e)(1).
When -- as in this case -- the state appellate court affirms without an
opinion, we “‘look through’ the unexplained decision to the last related state-court
decision that does provide a relevant rationale,” and “presume that the unexplained
decision adopted the same reasoning.” See Wilson v. Sellers,
138 S. Ct. 1188,
1192 (2018).
To prevail on a claim of ineffective assistance of counsel, a section 2254
petitioner must show that (1) his lawyer’s performance was deficient and that (2)
he suffered prejudice as a result of that deficient performance. Strickland v.
Washington,
466 U.S. 668, 687 (1984).
Under the first part of Strickland, the petitioner “must show that counsel’s
representation fell below an objective standard of reasonableness.”
Id. at 687-88.
Our review of counsel’s performance is “highly deferential”: a “strong
presumption” exists that “counsel’s conduct falls within the wide range of
reasonable professional assistance.”
Id. at 689.
To show prejudice under Strickland, a petitioner “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different.”
Id. at 694. A “reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Id.
When the deferential standard for judging a lawyer’s performance is
“combined with the extra layer of deference that § 2254 provides, the result is
double deference and the question becomes whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Evans v. Sec’y,
Fla. Dep’t of Corr.,
699 F.3d 1249, 1268 (11th Cir. 2012) (quotations omitted).
“Double deference is doubly difficult for a petitioner to overcome, and it will be 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.”
Id.
Applying the deferential standards under section 2254 and Strickland, we
now consider whether the state habeas court acted “contrary to” clearly established
federal law or relied on an unreasonable determination of the facts when it rejected
Driggers’s ineffective-assistance-of-counsel arguments asserted in Claims 1 and 4.
Claim 1:
In Claim 1, Driggers alleged that his trial lawyer (M.J.) rendered ineffective
assistance by failing to present evidence at trial that Driggers had “obvious” and
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“impossible to miss” tattoos on his penis. Driggers says this evidence would have
undermined the victim’s credibility because the victim testified at trial that she had
seen Driggers’s penis on multiple occasions but that she had never seen tattoos on
his penis.
The state habeas court denied relief on this ground. The state court held an
evidentiary hearing during which M.J. testified that -- in preparation for trial -- he
hired a private investigator to photograph Driggers’s tattoos. By the time of trial,
M.J. had the photographs, had disclosed the photographs to the state, and had listed
the private investigator as a potential witness.
M.J. also testified, however, that he believed that admitting the photographs
into evidence would be “extremely offensive” to the jury. M.J. said he discussed
the offensive nature of the photographs with Driggers and with Driggers’s brother
and that Driggers agreed not to admit the photographs.
The state habeas court concluded that not introducing the tattoo evidence
“was clearly a strategic decision” made by M.J. and that Driggers had failed to
show that “no competent attorney would have made the same decision.” Given
other evidence of Driggers’s guilt, the state court also determined that Driggers had
failed to show that the introduction of the tattoo evidence would have altered the
outcome of the trial.
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We review under a “clear and convincing evidence standard” the state
court’s factual determination that M.J.’s decision not to introduce the tattoo
evidence was one of strategy. See Kimbrough v. Sec’y, Fla. Dep’t of Corr.,
565
F.3d 796, 804 (11th Cir. 2009). We review de novo the state court’s legal
conclusion about whether M.J.’s tactical decision was reasonable. See
id. We
have recognized that “[i]t is especially difficult to succeed with an ineffective
assistance claim questioning the strategic decision to trial counsel who [was]
informed of the available evidence.” Nance v. Warden, Ga. Diagnostic Prison,
922
F.3d 1298, 1302 (11th Cir. 2019).
The record supports the state habeas court’s conclusion that M.J. made a
reasonable strategic decision not to introduce the photographs or testimony about
Driggers’s penis tattoos. M.J. had taken the necessary steps to investigate and to
introduce the tattoo evidence but decided -- after considering the available
evidence and discussing the issue with Driggers -- that the photographs would be
unduly offensive to the jury. We have said that decisions about what issues to
pursue and what witnesses to call during trial “are, without a doubt, strategic.” See
Nance, 922 F.3d at 1302-03. M.J. also believed the photographs and testimony of
the private investigator would have little impeachment value absent evidence
establishing that the tattoos had in fact been present at the time of the charged
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offenses. M.J.’s professional assessment that the offensive nature of the tattoo
evidence outweighed the evidence’s potential beneficial value was not objectively
unreasonable.
On this record, we cannot say that the state habeas court’s ruling on Claim 1
was contrary to or an unreasonable application of clearly established law or based
on an unreasonable determination of the facts.
Claim 4:
In Claim 4, Driggers alleged that his trial lawyer performed deficiently by
failing to inform him adequately about his right to testify on his own behalf.
The state habeas court denied this ground for relief. At the evidentiary
hearing, Driggers testified that M.J. never discussed with him whether he should
testify in his own defense. M.J. testified that he could not recall specifically
discussing this issue with Driggers. But M.J. testified that he “always” talks with
his clients -- both before trial and during trial -- about whether they wanted to
testify and about the advantages and disadvantages of taking the stand. M.J. said
he would have discussed with Driggers the likely difficulty Driggers would have
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answering questions about both the victim’s testimony and the testimony of a
second witness about an earlier similar incident involving Driggers.
The state habeas court said that “[a]lthough [M.J.] had no independent
recollection of the conversation, his testimony was unwavering that he would have
discussed these matters with the defendant.” To the extent Driggers’s testimony
conflicted with M.J.’s testimony, the state habeas court found that M.J.’s testimony
was more credible: a finding based on the state judge’s observations during the
evidentiary hearing of each witness’s demeanor and memory.
In the alternative, the state habeas court also determined that -- even if it
found Driggers credible and accepted Driggers’s testimony as true -- Driggers
failed to demonstrate prejudice under Strickland. The state court described
Driggers as having testified during the evidentiary hearing that “had he been
informed of his rights concerning testifying at trial, he did not know if he would
have testified or not; rather, he could have made an informed decision.” Based on
this testimony and other evidence of Driggers’s guilt, the state habeas court
concluded that Driggers could not show a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.”
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The state habeas court’s decision was neither contrary to or an unreasonable
application of Strickland or based on an unreasonable determination of the facts.
Even assuming (without deciding) that M.J. performed deficiently and failed to
advise Driggers of his right to testify, Driggers has demonstrated no reasonable
probability that -- but for that error -- he would have been found not guilty.
To prove prejudice, Driggers would have to show two critical components:
(1) that he would in fact have testified in his own defense had he been informed
adequately about his right to do so, and (2) that his proposed testimony would have
altered the outcome of the trial. In the light of Driggers’s sworn testimony that he
was unsure whether or not he would have testified, Driggers cannot satisfy his
burden of showing prejudice.
Nor has Driggers shown a reasonable probability that his proposed
testimony -- describing his penis tattoo and asserting that the tattoo was present
before he met the victim -- would have altered the outcome of the trial. Driggers
says his proposed testimony would have damaged the victim’s credibility. But the
record shows that M.J. did challenge the victim’s credibility by introducing
evidence that the victim had given conflicting statements to authorities, used
language not consistent with her age, and reported Driggers’s conduct only after
she got in trouble with her parent. Moreover, Driggers’s proposed testimony
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would not have rebutted the victim’s testimony describing the details of Driggers’s
offense conduct or called into question the non-victim witness testimony that
Driggers had engaged in similar conduct with her.
Because Driggers failed to demonstrate that he was prejudiced by M.J.’s
purportedly deficient performance, he is unentitled to habeas relief on this claim.
The district court committed no error by determining that the state habeas
court applied reasonably the Strickland standard. We affirm the denial of
Driggers’s
28 U.S.C. § 2254 petition.
AFFIRMED.
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