                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                            No. 10-15412             FEB 27, 2012
                                        Non-Argument Calendar         JOHN LEY
                                      ________________________         CLERK

                                D.C. Docket No. 2:08-cv-14440-DLG



MICHAEL THEODORE JAWORSKI,

llllllllllllllllllllllllllllllllllllllll                            Petitioner-Appellant,


                                                 versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

llllllllllllllllllllllllllllllllllllllll                           Respondent-Appellee.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (February 27, 2012)

Before MARCUS, MARTIN and FAY, Circuit Judges.

PER CURIAM:
      Michael Theodore Jaworski, a Florida prisoner, appeals the district court’s

order denying his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254.

In 1999, a state jury found Jaworski guilty of robbery with a dangerous weapon and

possession of a firearm by a convicted felon, and he received a life sentence. His

convictions were initially overturned on appeal, but on rehearing, the state appellate

court reversed itself, affirming his convictions. See Jaworski v. State, 804 So.2d 415,

418 (Fla. 4th Dist. Ct. App. 2001). In 2011, Jaworski filed in federal district court his

§ 2254 petition, alleging, among other things, that: (1) the state trial judge violated

his constitutional rights by leaving to attend an investiture ceremony for another

judge during jury deliberations (Ground 1); and (2) trial and appellate counsel were

ineffective for failing to assert his right to be present at a bench conference during

trial at which the parties agreed to introduce exculpatory evidence through hearsay,

as opposed to live, testimony (Ground 5). The district court denied Jaworski’s § 2254

petition in its entirety, and specifically concluded that Jaworski failed to exhaust

Ground 1, and that Ground 5 failed because Jaworski did not demonstrate that either

trial or appellate counsel’s conduct relating to the bench conference resulted in

prejudice.   The district court granted a certificate of appealability (“COA”)

designating Grounds 1 and 5.



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      On appeal, Jaworski raises the following arguments concerning Grounds 1 and

5: (1) he exhausted, and did not procedurally default Ground 1 by presenting it to the

state court as a violation of his federal rights; (2) the judge’s absence from the

courtroom while a question from the jury was pending violated his constitutional right

to have a judge present during a critical stage of his proceedings; (3) defense counsel

performed deficiently by purporting to waive his presence at the bench conference

because he had a constitutional right to be present to offer his input on whether to call

a “crucial defense witness,” and was prejudiced by the resulting introduction of less

reliable hearsay testimony; and (4) appellate counsel performed deficiently by

premising his direct appeal on the incorrect state rule of criminal procedure, causing

the state court of appeal to affirm his convictions. After careful review, we affirm.

      When we examine a district court’s denial of a § 2254 habeas petition on the

merits, we review questions of law and mixed questions of law and fact de novo, and

findings of fact for clear error. Rhode v. Hall, 582 F.3d 1273, 1279 (11th Cir. 2009).

A claim for ineffective assistance of counsel is reviewed de novo as a mixed question

of law and fact. Id. In reviewing an ineffective assistance claim, we apply a “doubly”

deferential standard that takes into account § 2254’s deference to state courts and the

ordinarily deference to counsel, affirming if “there is any reasonable argument that

counsel” acted pursuant to prevailing professional standards. See Harrington v.

                                           3
Richter, 562 U.S. __, 131 S.Ct. 770, 788 (2011). We may affirm the judgment of the

district court “on any ground supported by the record.” Trotter v. Sec’y, Dep’t of

Corr., 535 F.3d 1286, 1291 (11th Cir. 2008) (quotation omitted).

      First, we reject Jaworski’s argument that the district court erred in denying

Ground 1 of his petition. Under 28 U.S.C. § 2254, as amended by the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA),

      [a]n application for a writ of habeas corpus on behalf of a person in
      custody pursuant to the judgment of a State court shall not be granted
      with respect to any claim that was adjudicated on the merits in State
      court proceedings unless the adjudication of the claim--

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or

      (2) resulted in a decision that 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). Thus, although we review de novo the district court’s decision

about whether a state court reasonably applied federal law or determined the facts, we

“owe deference to the final state habeas judgment.” Hall v. Thomas, 611 F.3d 1259,

1284 (11th Cir. 2010) (quotation omitted). This deference applies whenever a claim

was adjudicated “on the merits.” Loggins v. Thomas, 654 F.3d 1204, 1218 (11th Cir.

2011). For § 2254 purposes, a claim is presumed to be adjudicated on the merits



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“unless the state court clearly states that its decision was based solely on a state

procedural rule . . . “ Id. at 1217 (quotation omitted).

      “[C]learly established Federal law” refers to Supreme Court holdings that were

in effect at the time of the relevant state court decision. Ward v. Hall, 592 F.3d 1144,

1155 (11th Cir.), cert. denied, 131 S.Ct. 647 (2010). To act contrary to clearly

established federal law, the state court must have either: (1) applied a rule that

contradicted a ruling by the Supreme Court; or (2) reached a different result than the

Supreme Court “when faced with materially indistinguishable facts.” Id. (quotation

omitted). Thus, where the law at the time is unclear as to an issue, a habeas petitioner

will be unable to demonstrate that it was “clearly established.” See Anderson v.

Sec’y for Dep’t of Corr., 462 F.3d 1319, 1327-28 (11th Cir. 2007).

      An unreasonable application of federal law occurs when the state court

identifies the correct governing legal rule, but “unreasonably applies that principle

to the facts of the prisoner’s case.” Cox v. McNeil, 638 F.3d 1356, 1360 (11th Cir.

2011) (quotations omitted), cert. denied, 132 S.Ct. 309 (2011). But review under §

2254(d)(1) “goes no farther” than inquiring into whether “there is no possibility

fairminded jurists could disagree that the state court’s decision conflicts with this

Court’s precedents.” Cave v. Sec’y, Dep’t of Corr., 638 F.3d 739, 744 (11th Cir.

2011) (quotations omitted).

                                           5
        Even if the district court was mistaken in concluding that the claim that

Jaworski raised in Ground 1 was exhausted and thus, procedurally barred, his claim

is meritless. Neither the Supreme Court nor this Court has published an opinion

addressing an assertion of constitutional error when a judge in a criminal case

absented himself during jury deliberations. Given the lack of binding precedent that

“squarely address[es]” the constitutional implications of a trial judge’s absence under

the circumstances presented in this case, Jaworksi’s claim on Ground 1 failed to make

the required showing that the state court acted contrary to “clearly established”

federal law. See Anderson, 462 F.3d at 1327-28.1 Accordingly, we affirm on the

        1
           Furthermore, assuming arguendo that clearly established federal law prohibited the state
trial judge from leaving during jury deliberations, any error in this respect was harmless. Lamarca
v. Sec’y, Dep’t of Corr., 568 F.3d 929, 942 (11th Cir. 2009) (quotation omitted) (“[S]ome
constitutional errors may be so unimportant and insignificant that they may, consistent with the
Federal Constitution, be deemed harmless.”). Indeed, in McElroy v. Firestone Tire & Rubber Co.,
894 F.2d 1504, 1510 (11th Cir. 1990), on the second day of deliberations in a trial on a civil action,
and after the judge had gone home, the deputy clerk assigned to excuse the jury witnessed one of the
jurors “crying and expressing a desire to be with her family.” The judge could not be reached, and
clerk informed attorneys for both sides about the situation. Id. On appeal, the plaintiff below alleged
that the trial judge had “abandon[ed] the jury during deliberations and fail[ed] to communicate with
the jury upon request.” Id. (alterations in original). This Court rejected that claim, holding that there
was no evidence that the judge, if available, “would, should, or could” have done anything
differently, nor was there any evidence that the jury had something to communicate. Id. The Court
further observed that there was no reason to suspect that the circumstances of the case led the jury
to rush to a verdict. Id. Like in McElroy, the trial judge in Jaworski’s case, before leaving for the
investiture, did not give the jury an opinion on the evidence or say what, if anything, the jury should
consider while it was waiting to hear replayed testimony, and informed the jury that he did not want
it to rush to judgment. Moreover, the jury did not quickly reach a verdict or otherwise appear to be
“chilled,” by the trial judge’s absence but rather, was still deliberating -- and had asked another
question -- when the trial judge returned from the investiture. In addition, the trial judge, upon his
return, offered the jurors an opportunity to hear the replayed testimony as it originally requested, but
the jury did not repeat its request. That the jury never heard the testimony replayed is not itself

                                                   6
merits the district court’s denial of the claim that Jaworski raised in Ground 1.

Trotter, 535 F.3d at 1291.

       We also find no merit to Ground 5. The United States Constitution provides

that in “all criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defen[se].” U.S. Const. amend. VI. To make a

successful claim of ineffective assistance of counsel, a defendant must show that: (1)

counsel’s performance was deficient; and (2) the deficient performance prejudiced

his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Both parts of the

test must be met, thus, if a defendant cannot satisfy the performance prong, a court

does not need to address the prejudice prong, and vice versa. Michael v. Crosby, 430

F.3d 1310, 1319 (11th Cir. 2005).

       In determining whether counsel’s performance was deficient, “counsel is

strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S.

at 690. Well-researched strategic choices are “virtually unchallengeable.” Id. at

690-91. Appellate counsel need not raise meritless issues on direct appeal. Owens




prejudicial, as the jurors could have simply decided to proceed on their recollection. Absent any
evidence of express or implied intimidation, there is little in the record to suggest that the trial
judge’s temporary absence during the deliberations had any effect on the jury’s ultimate guilty
verdict, and the error, if any, was harmless.

                                                 7
v. Sec’y, Dep’t of Corr., 568 F.3d 894, 915 (11th Cir. 2009). Rather, “[e]xperienced

advocates since time beyond memory have emphasized the importance of winnowing

out weaker arguments on appeal and focusing on one central issue if possible, or at

most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52 (1983).

      To establish prejudice, the petitioner has the burden to show more than that the

error had “some conceivable effect on the outcome of the proceeding.” Marquard v.

Sec’y for Dep’t of Corr., 429 F.3d 1278, 1305 (11th Cir. 2005) (quotation omitted).

“Rather, the petitioner 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. (quotation omitted). Where ineffective assistance is based on

counsel’s failure to call a witness, the burden to show prejudice is heavy because

“often allegations of what a witness would have testified to are largely speculative.”

Sullivan v. DeLoach, 459 F.3d 1097, 1109 (11th Cir. 2006).

      In this case, neither defense counsel nor appellate counsel were ineffective for

failing to assert Jaworksi’s right to be present at a bench conference during trial at

which the parties agreed to introduce exculpatory evidence through hearsay, as

opposed to live, testimony. As the record shows, Jaworski was confronted at trial

with defense counsel’s decision to use hearsay testimony but, raised no objection at

the time. In addition, counsel repeatedly made the jury aware of reasons to doubt

                                          8
testimony from the state’s witnesses identifying Jaworksi as the suspect, but the jury

convicted him nonetheless. Consequently, Jaworski has failed to demonstrate that,

but for defense counsel’s decision to reach a compromise with the state about the

hearsay testimony outside of his presence, he would not have been convicted. See

Marquard, 429 F.3d at 1305.

      As for his claim that appellate counsel performed deficiently by premising his

direct appeal on Rule 3.180(a)(3), instead of Rule 3.180(a)(6), the state court of

appeals already has determined that the rule of criminal procedure which he now

invokes was inapposite. See Jaworski, 804 So.2d at 419 (holding that “defendant’s

presence was not required by rule 3.180[(a)(6)]”). Because an argument that Rule

3.180(a)(6) guaranteed Jaworski’s presence would not have succeeded, appellate

counsel was not ineffective for failing to raise that non-meritorious argument. See

Owens, 568 F.3d at 915. Accordingly, we affirm.

      AFFIRMED.




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