                                                                      [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS
                       FOR THE ELEVENTH CIRCUIT
                                                                              FILED
                          -------------------------------------------U.S. COURT OF APPEALS
                                       No. 04-16035                    ELEVENTH CIRCUIT
                                                                        FEBRUARY 3, 2006
                                 Non-Argument Calendar
                         -------------------------------------------- THOMAS K. KAHN
                                                                             CLERK

                       D.C. Docket No. 04-21203-CV-WPD

GERALD BENJAMIN FISHBONE,

                                                          Petitioner-Appellant,

                                           versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,

                                                          Respondent-Appellee.

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                    Appeal from the United States District Court
                         for the Southern District of Florida
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                                   (February 3, 2006)

Before EDMONDSON, Chief Judge, BIRCH and BARKETT, Circuit Judges.


PER CURIAM:

      Defendant Gerald Fishbone appeals the denial of his habeas corpus petition,

claiming defense counsel failed to inform him he had the right to testify at trial.

No reversible error has been shown; we affirm.
      On 6 August 1998, Defendant shot and killed Richard Deville during an

appointment in Defendant’s office at Seminole Tools. Defendant claims he acted

in self-defense. Deville had called Defendant the day before to schedule an

appointment to discuss purchasing tools. Because of a fraudulent transaction that

occurred in 1997, Defendant feared Deville was a hit man. Defendant claims that

after he led Deville into his office, Deville walked up and shoved him twice

against his desk with a crazy look in his eyes. Defendant drew a gun. Deville

cursed at Defendant. Defendant told Deville he was not playing around, the gun

was loaded, and Deville should put his hands on his head. Deville again cursed at

Defendant and lunged for the gun. Defendant closed his eyes and fired. The shot

hit Deville in the neck, severing his spinal cord. Deville died minutes later.

Defendant was convicted of second degree murder in June 2000 after a four-day

trial. The district court denied Defendant’s lengthy petition for habeas corpus in

October 2004. It later granted Defendant’s certificate of appealability on a single

issue: whether Petitioner was denied the right to testify at trial.

      A criminal defendant has a fundamental constitutional right to testify on his

own behalf at trial that cannot be waived by defense counsel. U.S. v. Teague, 953

F.2d 1525, 1532 (11th Cir. 1992). Defense counsel bears the responsibility for

advising the defendant of his right to testify or not to testify, of the strategic

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implications of each choice, and that it is ultimately for the defendant himself to

decide. Id. at 1533. The appropriate vehicle for claims that defense counsel’s

acts let to a violation of this right is an ineffective assistance of counsel claim. Id.

at 1534. To prevail, a petitioner must establish that 1) his or her counsel’s

representation fell below an objective standard of reasonableness, and 2) but for

the deficiency in representation, a reasonable possibility exists that the result of

the proceedings would have been different. Strickland v. Washington, 104 S.Ct.

2052 (1984).1

       A court may decline to reach the performance element of an ineffective

assistance of counsel claim if convinced that the prejudice prong cannot be

satisfied. Waters v. Thomas, 46 F.3d 1506, 1510 (11th Cir. 1995). Assuming

arguendo that Defense counsel interfered with Defendant’s right to testify and

provided ineffective counsel in so doing, we are convinced that Defendant was not

prejudiced.2


  1
    The Parties dispute whether the state court adjudicated the merits of Defendant’s claim that he
was deprived of the right to testify. If so, 28 U.S.C. § 2254(d) (2000) prohibits habeas relief unless
the decision was “contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court.” If not, we review ineffective assistance of counsel claims
de novo. LeCroy v. Sec’y, Fla. Dept. of Corrections, 421 F.3d 1237, 1262 (11th Cir. 2005). Under
either standard, we would look to the Strickland test and reach the same result.
  2
    Because we do not reach the issue of whether Defendant was deprived of his right to testify, we
also decline to consider Defendant’s claim that he is entitled to an evidentiary hearing on this issue.


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      Defendant made two sworn statements to police–the contents of which were

introduced at trial by the State. In his habeas petition, Defendant did not offer the

proffered testimony he claims would change the outcome of the case. Assuming

Defendant’s testimony would have matched the detailed claims he made in his

Objection to State’s Response to Order to Show Cause, the testimony would have

mirrored Defendant’s earlier statements with the following additions: as Deville

lunged at Defendant he covered Defendant’s hand, tried to turn the gun towards

Defendant, and ducked to avoid being shot. When Deville was shot, his body

rolled to the right because the lunge made him off-balance. There is no reason to

believe a jury would have found this testimony credible. Dr. Fackler, an expert on

wound ballistics, testified that if the victim lunged forward as Defendant alleges,

the victim would have landed with his head facing the gun–the opposite of how

the body was found. Dr. Rao, the forensic pathologist that performed the autopsy

and investigated the scene, also testified that the victim’s wound and body

position were inconsistent with Defendant’s version of events. The defense

presented no medical expert to support Defendant’s story.

      The jury heard other evidence that Defendant was not credible. Defendant

claims that he was shoved twice against his desk, but the desk appeared orderly.

When Officer Martinez mentioned this orderliness, Defendant claimed he had

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straightened the desk before police arrived. After Defendant shot Deville,

Defendant’s first call was not to 911, but to a customer, Konstantinos Piliouras

(“Gus”). Defendant told Gus what happened without mentioning that Deville

shoved him or lunged for the gun. Defendant then called 911 but lied to the

operator, claiming Deville had pushed his way into the office uninvited and

appeared to be a robber.

       If Defendant had testified, defense counsel would have lost the right under

Florida law to present the final rebuttal argument. See Kelley v. Sec’y for D.O.C.,

377 F.3d 1317, 1353 (11th Cir. 2004). Defendant would also have exposed himself

to damaging rebuttal and impeachment evidence. In 1997, after appraising

equipment for Richard Lee, Defendant received an unsolicited check for $49,000

with paperwork indicating he sold the appraised equipment to a leasing company,

which he had not. At Lee’s request, Defendant deposited the check in his own

account. He allegedly attempted to return the money after he became concerned

about fraud, but was unable to do so because the companies involved did not exist.

He then received threatening phone calls, which contributed to his fear that

Deville was a hit man. At trial, the State was prepared to present evidence that the

companies did exist, Defendant lied about his efforts to return the money, and

Defendant was only threatened with lawful action. But the district court ruled that

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this evidence would only be admitted if Defendant testified. Defense counsel

made a tactical decision not to put Defendant on the stand.

      Because Defendant’s proposed testimony conflicted with that of two

medical experts and would have exposed Defendant to damaging impeachment

evidence, no reasonable possibility exists that the result of the proceedings would

have differed if Defendant had testified. We therefore do not reach the issue of

whether Defendant was in fact deprived of his right to testify or received

ineffective assistance of counsel. The district court judgment is AFFIRMED.




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