                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT                  FILED
                                    ________________________        U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                          MAY 20, 2011
                                            No. 10-14870
                                                                           JOHN LEY
                                      ________________________              CLERK

                            D.C. Docket No. 3:07-cv-00665-MMH-JBT

JAMES BELCHER,

llllllllllllllllllllllllllllllllllllllll                         Petitioner - Appellant,

                                           versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                         Respondents - Appellees.


                                     ________________________

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

                                           (May 20, 2011)

Before CARNES, BARKETT and MARTIN, Circuit Judges.

PER CURIAM:

         James Belcher, a Florida prisoner on death row, appeals from the district
court’s denial of his petition for a writ of habeas corpus, brought pursuant to 28

U.S.C. § 2254. This court granted a certificate of appealability on three issues

concerning Belcher’s trial counsel’s performance:

      1.     Whether Belcher’s trial counsel was constitutionally ineffective
             for failing to object to prosecution statements in violation of
             Caldwell v. Mississippi, 472 U.S. 320 (1985).

      2.     Whether Belcher’s trial counsel was constitutionally ineffective
             for failing to object to prosecution questions during the penalty
             phase aimed at proving a non-statutory aggravating
             circumstance—that prison life was not harsh—unrelated to the
             crime or the defendant.

      3.     Whether the combined effect of these instances of
             ineffectiveness cumulatively denied Belcher effective
             assistance of counsel.

After careful review of the record and the parties’ arguments, and with the benefit

of oral argument, we affirm.

                               I. Procedural History

      James Belcher was charged in Duval County, Florida, with first degree

murder and sexual battery. The evidence at trial indicated that Belcher entered the

victim’s home, sexually assaulted her, and killed her by strangling and drowning

her in the bathtub. The jury found Belcher guilty of first degree murder on the

theories of both premeditation and felony murder, and guilty of sexual battery.

After a penalty phase hearing, the jury voted, nine to three, in favor of a death

sentence. The trial court followed the jury’s recommendation and imposed a death

                                          2
sentence for first-degree murder and sentenced Belcher to twenty-five years

imprisonment for sexual battery. 1 The Supreme Court of Florida affirmed

Belcher’s convictions and the death sentence on direct appeal. Belcher v. State,

       1
           The Florida Supreme Court on direct appeal summarized the findings at sentencing as
follows:

       The trial court found that the State proved beyond a reasonable doubt the following
       aggravators in support of Belcher’s death sentence: (1) the defendant has been
       previously convicted of a felony involving the use or threat of violence to some
       person (great weight); (2) the capital felony was committed while the defendant was
       engaged in the commission of the crime of sexual battery (great weight); and (3) the
       capital felony was especially heinous, atrocious, or cruel (HAC) (great weight). The
       trial court found that all of the mitigating factors that were presented were proven
       sufficiently for the Court to give them consideration. The mitigating factors in this
       case, all of which were nonstatutory, were: (1) in his relationship with family
       members, Belcher is considerate, generous and concerned; (2) Belcher loves his
       parents, brother, sisters, cousins, aunts, and uncles, and they love him; (3) Belcher
       has not lured anyone else in his family into trouble with the law, he has actually
       discouraged family members from engaging in criminal behavior and used himself
       as an example as to why they should not get involved in criminal activity; (4) Belcher
       has done many kind things for his family; (5) in spite of personal problems, Belcher
       has encouraged his cousins to do well; (6) Belcher has often been a mentor and a role
       model of integrity to his relatives; (7) Belcher has maintained contact with relatives
       even while in prison and continues to provide them advice and counsel, sometimes
       over the phone; (8) Belcher was raised in a high crime area in New York and was
       evidently unable to resist the temptations of crime; (9) Belcher was sent to adult
       prison at an early age and it affected his development; (10) Belcher has never abused
       alcohol or drugs; (11) Belcher has shown concern for younger inmates at Appalachee
       Correctional Institute (ACI) and has had a positive effect on their lives by being a
       tutor, basketball coach, a good listener, a counselor to young inmates, and a
       peacemaker; (12) Belcher can continue to help other inmates in the future, as
       evidenced by those who testified at the penalty phase; (13) Belcher has not been a
       discipline problem either in prison or in the pretrial detention facility for the period
       of his recent incarceration; (14) Belcher displayed proper behavior during trial; and
       (15) Belcher displayed appropriate remorse and genuine concern for the distress
       caused to his family and the victim’s family during the Spencer hearing. The
       sentencing order indicates that the trial court assigned “some weight” to all of the
       mitigators, except for (11) and (12), to which it assigned “greater weight.”

Belcher v. State, 851 So. 2d 678, 681-82 (Fla. 2003) (footnote omitted).


                                                  3
851 So. 2d 678 (Fla. 2003). Belcher’s petition for writ of certiorari in the Supreme

Court of the United States was denied. Belcher v. Florida, 540 U.S. 1054 (2003).

Belcher then filed, in state court, a motion for post-conviction relief pursuant to

Fla. R. Crim. P. 3.851. Belcher raised fourteen claims, nearly all of which

concerned defense counsel’s alleged ineffectiveness. The state trial court held an

evidentiary hearing and subsequently denied the motion for post conviction relief.

The Florida Supreme Court again affirmed and denied an additional state habeas

petition filed by Belcher. Belcher v. State, 961 So. 2d 239 (Fla. 2007). The

Supreme Court again denied certiorari. Belcher v. Florida, 552 U.S. 1026 (2007).

      Belcher then filed the instant petition, which was also denied and from

which he now appeals.

                     II. Standard of Review and Legal Test

      Belcher’s habeas petition is governed by the standards of review set forth in

28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty

Act of 1996. Because Becher’s claim was adjudicated on the merits in his state

post-conviction proceedings, § 2254(d) allows federal habeas relief only if the

state court adjudication

      (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.

                                          4
28 U.S.C. § 2254(d).2

       Belcher’s claims of ineffective assistance of counsel must be reviewed

under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

“Strickland requires a petitioner to show both that his counsel’s performance was

deficient, and that the deficiency prejudiced his defense.” Philmore v. McNeil,

575 F.3d 1251, 1260 (11th Cir. 2009). Counsel’s performance is deficient only if

it “fell below an objective standard of reasonableness.” Strickland, 466 U.S. at

688. We will find prejudice only if “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Id. at 694.

       Thus, we will grant relief only if we find that the Florida Supreme Court’s

decision, affirming the trial court’s denial of his ineffective assistance claims, was

contrary to or an unreasonable application of U.S. Supreme Court law.




       2
           A decision is “contrary to” federal law if it contradicts the Supreme Court on settled law
or gives a different holding than the Court’s on a set of materially indistinguishable facts—in
short, it is a decision “substantially different from the [Supreme Court’s] relevant precedent . . .
.” Williams v. Taylor, 529 U.S. 362, 405 (2000). A decision unreasonably applies federal law if
it identifies the correct governing legal principle as articulated by the United States Supreme
Court but unreasonably applies that principle to the facts of the petitioner’s case, “unreasonably
extends [the] principle . . . to a new context where it should not apply, or unreasonably refuses to
extend [it] to a new context where it should apply.” Id. at 407.

                                                  5
                                       III. Discussion

       On appeal, Belcher argues that his trial counsel were constitutionally

ineffective for two reasons. We address each in turn.

       A.      Failure to Make Caldwell Objection

       First, Belcher asserts that trial counsel were ineffective for failing to object

to the prosecutor’s repeated references to the jury’s sentence recommendation as

advisory, which Belcher claims violates Caldwel1 v. Mississippi, 472 U.S. 320

(1985), and that the failure to object prejudiced him.

       In Caldwell, the Supreme Court ruled in a partially divided opinion that the

Eighth Amendment is violated when a jury is “led to believe that responsibility for

determining the appropriateness of a death sentence rests not with the jury but

with the appellate court which later reviews the case.” 472 U.S. 320, 323.

Caldwell involved a death sentence in Mississippi, where the jury had the sole

responsibility for imposing the sentence and appellate courts reviewed the

sentence with a “presumption of correctness.” See Id. at 331-32. Because only

four Justices joined part of the majority’s analysis in Caldwell, the Court in

Romano v. Oklahoma3 adopted Justice O’Connor’s Caldwell concurrence as


       3
         512 U.S. 1, 8-9 (1994). The Romano court addressed the related question of whether
admitting irrelevant evidence of a defendant’s death sentence for another murder “impermissibly
undermine[d] the sentencing jury’s sense of responsibility for determining the appropriateness of
the defendant’s death.”

                                                6
limiting the case’s reach:

      Caldwell [is] relevant only to certain types of comment—those that
      mislead the jury as to its role in the sentencing process in a way that
      allows the jury to feel less responsible than it should for the
      sentencing decision. Thus, [t]o establish a Caldwell violation, a
      defendant necessarily must show that the remarks to the jury
      improperly described the role assigned to the jury by local law.

512 U.S. 1, 9 (1994) (citations and quotation marks omitted) (second alteration in

Romano).

      The capital sentencing scheme in Florida, unlike that in Mississippi and

Oklahoma, treats the jury’s verdict as advisory, albeit one carrying great weight

that a judge can override only if “virtually no reasonable person could differ” as to

the correct result. Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975). In Davis v.

Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997), this Court applied Caldwell and

Romano to Florida’s sentencing scheme, noting that Romano required that the

comments misstate the law on the jury’s responsibility. In Davis, the jury

instructions and prosecutor’s comments contained “references to and descriptions

of the jury’s sentencing verdict . . . as an advisory one, as a recommendation to the

judge, and of the judge as the final sentencing authority.” Id. We held that such

comments “accurately characterize the jury’s and judge’s sentencing roles under

Florida law” and so “are not error under Caldwell.” Id. Thus, defense counsel here

could have validly objected only if the prosecutor inaccurately stated the jury’s


                                          7
role in such a way that would “allow[] the jury to feel less responsible than it

should for the sentencing decision.” Romano, 512 U.S. at 9.

      Having reviewed the record, we cannot say that the state misrepresented the

law regarding the jury’s role. The remarks made by the prosecutor, viewed in

context, accurately portrayed the relationship between the judge and jury and did

not denigrate the jury’s role in the proceedings. Indeed, the prosecutor repeatedly

stressed that the jury’s recommendation held “great weight” in the judge’s

decision. Thus, counsel’s performance in declining to object was not deficient,

and we cannot say the Florida courts’ denial of his ineffective assistance claim on

this ground was contrary to or an unreasonable application of federal law.

      B.     Failure to Object to Non-Statutory Mitigator

      Belcher also alleges that counsel was deficient in failing to object when the

government elicited testimony from Belcher’s mitigation witnesses about

prisoners’ leisure activities, meals, and opportunities to work outside prison walls

and on legal filings. Belcher had presented witnesses who described him as a man

who coached a basketball team, tutored inmates seeking equivalency diplomas,

mentored younger inmates to encourage them to avoid violence and disciplinary

problems, and generally lived a life worth sparing. The trial court noted that this

evidence of Belcher’s life in prison and his future potential to be the most

persuasive of the fifteen mitigating circumstances he found.

                                          8
      On cross-examination, the state sought at times to elicit a view of prison life

as relatively pleasant. Defense counsel did not object and instead asked questions

on re-direct to show that prison was in fact an unpleasant place in which people

would not want to live. Belcher claims the decision not to object constituted

ineffective assistance. Even assuming that Belcher’s reliance on the evidence of

his life in prison as a mitigator did not open the door to these questions on cross-

examination, we cannot say that counsel’s decision to address the issues on re-

direct without objecting “fell below an objective standard of reasonableness.”

Strickland, 466 U.S. at 688. One of Belcher’s trial counsel at the post-conviction

hearing testified that he decided as matter of strategy that it would be better not to

object because he found the cross-examination “silly.” As a result, he thought he

could more effectively address the issues on redirect. For example, the

prosecution elicited testimony on cross-examination of one witness about how

some minimum-security inmates can work outside the prison walls supervised by a

guard who has no gun. On re-direct, counsel clarified that some inmates’

convictions, no matter how well behaved they may be in prison, prevent them from

moving beyond “close custody” status—thus preventing them from ever working

off the prison grounds or without an armed guard. Counsel similarly rebutted

suggestions about the alleged desirability of the food served and circumstances in

which prisoners receive visitors. To prove deficient performance, Belcher “must

                                           9
overcome the presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.” Strickland, 466 U.S. at 689. Belcher

has not shown that the Florida Supreme Court’s decision—that the presumption of

“sound trial strategy” was not overcome—was contrary to or an unreasonable

application of Supreme Court law.4

       Accordingly, we find no reversible error and so affirm the district court’s

denial of Belcher’s petition for habeas corpus.

       AFFIRMED.




       4
         Not having found deficient performance on either of Belcher’s claims, we need not
address his cumulative error argument.

                                              10
