                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                    FILED
                          ________________________         U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                December 2, 2005
                                No. 04-15243                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                      D. C. Docket No. 03-14157-CV-KMM

STANLEY SMITH,


                                                             Petitioner-Appellant,

                                     versus

JAMES CROSBY, Secretary,
Department of Corrections,
CHARLES J. CRIST, JR.,
Attorney General for the State
of Florida,

                                                         Respondents-Appellees.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________
                               (December 2, 2005)


Before ANDERSON, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
       Stanley Smith, a Florida prisoner proceeding pro se, appeals the district

court’s denial of his habeas corpus petition, which was brought pursuant to 28

U.S.C. § 2254. In 1999, Smith was charged by information with one count each of

robbery with a deadly weapon, armed burglary of a dwelling, and attempted felony

murder. In March 2000, a jury acquitted Smith of robbery, found him guilty of

armed burglary, and could not reach a verdict on the attempted felony murder

count. Following a re-trial on the attempted felony murder charge, a jury

convicted Smith of the lesser included offense of second degree attempted felony

murder. The state court sentenced Smith to 30 years’ imprisonment for the armed

burglary conviction and 15 years’ imprisonment for the attempted felony murder

conviction, to run consecutively, and the state appellate court affirmed both

convictions without a written opinion.

       In each of the two trials, the prosecutor, in his closing arguments, referred to

the state’s case as “unrebutted,” and Smith’s counsel failed to lodge an objection.

In his state post-conviction proceedings, Smith argued, in relevant part, ineffective

assistance of counsel with respect to these failures to object. The state court denied

this claim, finding the claim procedurally barred from collateral attack under state

law.

       In the present § 2254 habeas petition, Smith again contended that his counsel



                                           2
was ineffective in failing to object to the prosecutor’s comments in the two trials

that the state’s evidence was unrebutted. Smith argued that such comments were

improper because (1) they drew attention to his decision not to testify and thereby

violated his right to remain silent under the Fifth Amendment , and, (2) under

Florida case law, it was improper for the prosecution to refer to defense’s failure to

call witnesses or to present testimony to rebut the state’s case. Smith asserted that

these comments encouraged the jury to infer his guilt through his silence.

      The district court denied the ineffective assistance of counsel claim, finding

that the claim was procedurally defaulted from federal review. The court reasoned

that, because the state court expressly imposed a procedural bar on this claim, the

court was barred from considering the claim absent certain unmet conditions. We

granted a certificate of appealability as to the following issue:

      Whether the district court improperly denied Smith’s claim that trial
      counsel was ineffective for failing to object to, and thus preserve a
      challenge to, the prosecutor’s improper remarks that the state’s case
      was “unrebutted,” that there was no testimonial evidence to support
      the defense, and regarding Smith’s silence.

      On appeal, Smith argues that the district court improperly denied Smith’s

claim that trial counsel was ineffective for failing to object to, and thus preserve a

challenge to, the prosecutor’s improper remarks that the state’s case was

“unrebutted.” Smith contends that the district court’s finding that the claim was



                                           3
procedurally barred was erroneous, in that (1) the state of Florida waived the

procedural default by failing to raise it in district court, (2) the claim was not

independent of federal law, and (3) the state court addressing this claim did not

clearly state that the claim was procedurally barred. Smith also argues that (1) his

counsel was ineffective in that counsel failed to object to improper statements

made by the prosecutor indicating his personal belief that Smith was guilty of the

offenses, and, (2) in light of United States v. Booker, 543 U.S. __, 125 S.Ct. 738,

160 L.Ed.2d 621 (2005), his sentence was improperly enhanced.

      We conclude that Smith’s claim of ineffective counsel is not procedurally

barred but that his conviction should remain undisturbed because of the absence of

harmful error.

I.    Are Smith’s Claims Procedurally Barred?

      We review de novo a district court’s denial of a habeas petition under 28

U.S.C. § 2254. See Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998).

Factual findings are reviewed for clear error. Id.

      Under the doctrine of procedural default, “[i]n all cases in which a state

prisoner has defaulted his federal claims in state court pursuant to an independent

and adequate state procedural rule, federal habeas review of the claims is barred

unless the prisoner can demonstrate cause for the default and actual prejudice as a



                                            4
result of the alleged violation of federal law, or demonstrate that failure to consider

the claims will result in a fundamental miscarriage of justice.” Coleman v.

Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991)

(internal quotations omitted). We have set forth a three-part test to determine

whether a state court’s procedural ruling constitutes an independent and adequate

state rule of decision:

       First, the last state court rendering a judgment in the case must clearly
and expressly state that it is relying on state procedural rules to resolve the federal
claim without reaching the merits of that claim. Second, the state court’s decision
must rest solidly on state law grounds and may not be intertwined with an
interpretation of federal law. Third, the state procedural rule must be adequate.

Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (internal quotations and

citations omitted). The adequacy requirement has been interpreted to mean that the

rule must be “firmly established and regularly followed,” that is, not applied in an

arbitrary or unprecedented fashion. Ford v. Georgia, 498 U.S. 411, 423-25, 111

S.Ct. 850, 857-58, 112 L.Ed.2d 935 (1991); Judd, 250 F.3d at 1313.

      The Florida Supreme Court has held that claims that could have been raised

on direct appeal are procedurally barred from collateral review, and couching such

claims in terms of ineffective assistance of counsel for failure to preserve or raise

them cannot be used to circumvent that rule. Cherry v. State, 659 So.2d 1069,

1072 (Fla. 1995). However, a Florida appellate court has held that the rule stated



                                            5
in Cherry does not apply to certain ineffective-assistance claims, such as counsel’s

“silence in the face of an objectionable comment by the prosecutor,” that could not

have been raised on direct appeal. Knight v. State, 710 So.2d 648, 649 (Fla. Dist.

Ct. App. 1998). Additionally, the Florida Supreme Court has held that the rule in

Cherry does not apply where the underlying claims were raised and rejected on

direct appeal because they had not been preserved for review. Pietri v. State, 885

So.2d 245, 256 (Fla. 2004). In both Knight and Pietri, however, the lower court’s

judgment was nevertheless affirmed because the defendants failed to demonstrate

prejudice. Knight, 710 So. at 640; Pietri, 885 So.2d at 256.

       Here, the last state court to render judgment applying the state procedural

default in Cherry was the court that decided Smith’s post-conviction motion.1

Thus, if the default described in Cherry is “firmly established and regularly

followed,” federal review is precluded. See Ford, 498 U.S. at 423-25, 111 S.Ct. at

857-58. It appears here that the state court’s application of a procedural bar to

Smith’s claims, that counsel was ineffective in failing to object to the prosecutor’s

comments on the unrebutted nature of the state’s evidence, was incorrect under the

       1
         It appears that Smith failed to fully exhaust his ineffective assistance of counsel claim
in Florida state court, as the record on appeal does not include a request for certification for
appeal to the Florida Supreme Court of the Florida appellate court decision affirming the denial
of his post-conviction claims. However, Smith’s ineffective assistance of counsel claim is
without merit, as discussed below, and § 2254(b)(2) provides that an application for a writ of
habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust his state remedies. 28 U.S.C. § 2254(b)(2).

                                                 6
clarifications in subsequent Florida law. Cherry does not apply to ineffective

assistance of counsel claims respecting underlying claims that were rejected

because they had not been preserved for review. See Pietri, 885 So.2d at 256. It is

probable that Smith’s claims respecting prosecutorial misconduct were rejected on

direct appeal because they had not been preserved for review; Smith raised these

claims on direct appeal acknowledging the absence of objection at trial but arguing

fundamental error. The state had explicitly argued the absence of objection and the

appellate court affirmed without opinion. Moreover, a Florida appellate court has

held that Cherry does not apply to ineffective-assistance claims that could not have

been raised on appeal, such as the one presented here, i.e. counsel’s “silence in the

face of an objectionable comment by the prosecutor.” See Knight, 710 S.2d at 649.

Because the state court’s procedural default ruling did not rest on adequate state

grounds, the district court’s finding of procedural default with respect to this claim

is also erroneous. See Harris, 489 U.S. at 262, 109 S.Ct. at 1043. In other words,

the district court should have reached and resolved the claim.

      Because the procedural default issue is resolved on this basis in Smith’s

favor, we need not address Smith’s arguments that the state waived the default

argument, the claim was not independent of federal law, and the state court did not

clearly state the claim was procedurally barred.



                                           7
II.    Did Smith Suffer Prejudice at Trial as a Result of Ineffective Counsel?

       Smith has failed to establish that his counsel’s failure to object to the

prosecutor’s comments on the unrebutted nature of the state’s case prejudiced his

defense.2 To make a showing of ineffective assistance of counsel in violation of

the Sixth Amendment, a prisoner must show that the counsel’s performance was

deficient and must establish that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d

674 (1984). To prove prejudice, “[t]he 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.” Id. at 694, 104 S.Ct. at 2038.

       Smith argues that the comments were unconstitutional in that they infringed


       2
         We may address the merits of Smith’s ineffective assistance of counsel claim,
notwithstanding the fact that the state court and the district court failed to reach the merits of this
claim. First, § 2254(a) provides that this Court “shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on
the ground that he is in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. 2254(a). Smith’s ineffective assistance of counsel claim is a claim that his Sixth
Amendment right to counsel was violated. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Next, the prohibition contained in § 2254(d) against granting an application for a writ of habeas
corpus with respect to any claim that was adjudicated on the merits in state court proceedings,
except in certain specified circumstances, is not applicable here because the state court did not
adjudicate this ineffective assistance of counsel claim on its merits – it imposed a state
procedural bar. 28 U.S.C. 2254(d); Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1254-55
(11th Cir. 2002) (holding that the state court is required to reject a claim on the merits for
§ 2254(d)(1) to apply and a decision that does not rest on procedural grounds alone is an
adjudication on the merits). Last, we may affirm a decision of the district court “on any
adequate ground, even if it is other than the one on which the court actually relied.” Parks v.
City of Warner Robins, 43 F.3d 609, 613 (11th Cir. 1995) (holding such in a 42 U.S.C. § 1983
action).

                                                   8
on his right to remain silent and improperly referred to his failure to call witnesses

or present witnesses to rebut the state’s case. With respect to prejudice, Smith

asserts only that these comments resulted in the State encouraging the jury to infer

his guilt from his silence. This is insufficient in this case to show a reasonable

probability that, but for counsel’s error, the result of the proceeding would have

been different.

       At the two trials, three witnesses gave consistent eye-witness testimony as

to Smith’s involvement in the offenses of conviction. The witnesses generally

testified to the following: (1) Smith asked two people known to Smith for a ride in

their car, for both himself and an unidentified individual; (2) the driver of the car

consented; (3) once in the car, the unidentified individual pulled a gun on the

driver, and Smith demanded money; (4) Smith asked the driver of the car to pull

over; (5) after pulling over the car, the driver fled into a nearby house; (6) Smith

and the unidentified individual chased the driver into the house; (7) a shot was

fired (apparently by the unidentified individual) inside the house, and (8) a resident

of the house, not the driver, was hit by a bullet and injured.

      The entirety of Smith’s case in the first trial consisted of the alibi testimony

of Smith’s sister, who testified that Smith was fishing with her during the time the

offense was committed. In the second trial, the defense offered no witnesses or



                                           9
evidence. Had Smith’s counsel objected to the offending comments and curative

instructions resulted, the weight of the evidence against Smith makes it impossible

to conclude that as a consequence Smith would have fared better in the two

proceedings.

      Because Smith has failed to establish that his counsel’s failure to object to

the prosecutor’s comments on the unrebutted nature of the state’s case prejudiced

his defense, we affirm the denial of his § 2254 claim. As to Smith’s appellate

claims that (1) the prosecutor made improper statements indicating his personal

belief that Smith was guilty of the offenses, and, (2) in light of Booker, his

sentence was improperly enhanced, these claims exceed the scope of Smith’s

certificate of appealability and, therefore, we are precluded from reviewing them.

See McIntyre v. Williams, 216 F.3d 1254, 1256 n.2 (11th Cir. 2000).

      AFFIRMED.




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