           Case: 13-14214   Date Filed: 08/26/2014   Page: 1 of 10




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14214
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:10-cv-00408-SPC-UAM



LEROY C. MCDONALD,

                                                          Petitioner-Appellant,

                                 versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

                                                       Respondents-Appellees.

                       ________________________

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

                             (August 26, 2014)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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      Petitioner Leroy C. McDonald seeks a writ of habeas corpus setting aside his

conviction at the hands of a Lee County, Florida, jury for robbing a Merita Bread

store on June 5, 2003. The District Court denied the writ, and he appeals its

judgment. We issued a certificate of appealability (“COA”) on two issues:


      (1) Whether the admission of Barbie Edison’s in-court identification,
      Despite the suggestive identification procedures used by Detective
      Matthew Sellers, violated McDonald’s right to due process. See Neil v.
      Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382, 34 L. Ed.2d 401
      (1972).

      (2) Whether McDonald’s counsel rendered ineffective assistance by
      failing to call Officer Randy Jelks and Detective Dennis Keen at the
      suppression hearing in order to undermine Edison’s testimony that she
      provided a precise description of the robber prior to Seller’s
      suggestive procedures. See Strickland v. Washington, 466 U.S. 668,
      696, 104 S. Ctr. 2052, 2064, 2079, 80 L. Ed.2d 674 (1984).

      Under 28 § 2254(d), as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996),

a federal court may not grant habeas relief on claim that was previously

adjudicated in state court on the merits unless the state court’s adjudication

resulted in a decision that was contrary to, or involved an unreasonable application

of, a clearly established Supreme Court holding, or resulted in a decision that was

based on an unreasonable determination of the facts in light of the evidence

presented in the state court. 28 U.S.C. § 2254(d)(1)-(2). A state court’s decision is

contrary to clearly established Supreme Court precedent if it arrives at a conclusion


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opposite to that reached by the Supreme Court on a question of law or if the state

court decides a case differently than the Supreme Court has on a set of materially

indistinguishable facts. Borden v. Allen, 646 F.3d 785, 817 (11th Cir. 2011). The

“unreasonable application[] of clearly established Federal law” clause within

§ 2254(d)(1) permits federal habeas relief if the state court correctly identified the

governing legal principle from Supreme Court precedent but unreasonably applied

that principle to the facts of the petitioner’s case. Id. “An unreasonable

application may also occur if a state court unreasonably extends, or unreasonably

declines to extend, a legal principle from Supreme Court case law to a new

context. Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001).

      In the instant scenario, the Florida District Court of Appeal, in rejecting the

first issue on direct appeal and the second issue on collateral attack, did not explain

the reason for its decisions. The Supreme Court has instructed us on how to treat

an appellate court decision that is not accompanied with an explanation. Where a

state court's decision is unaccompanied by an explanation, the habeas petitioner's

burden still must be met by showing there was no reasonable basis for the state

court to deny relief. Harrington v. Richter, 131 S. Ct. 770, 784, 178 L. Ed.2d 624

(2011). Our task in the present situation is to review the record before the Florida

District Court of Appeal and “determine what arguments or theories supported or,




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as here, could have supported, [its] decision.” Cullen v. Pinholster, __ U.S. __,

131 S. Ct. 1388, 1402, 179 L. Ed. 2d 557 (2011).

      With these principles in hand, we consider the two issues the COA presents

after recounting how robbery at issue occurred and where Edison was situated at

the time.

      The robbery place while Edison was waiting in line to make a purchase at

the Bread store’s check-out counter. Petitioner was standing in front of her. He

had two cakes in his hands. He placed the cakes on the counter, then turned

around to warn Edison to step back because he didn’t want her involved. She

stepped back, and Petitioner, facing the clerk, Dawn Blue, ordered her to give him

all the money in the cash register. After Blue filled a couple of bread bags with

money, Petitioner made Blue and Edison to go to the back of the store and a

moment later left the premises.

      Following his arrest, the State Attorney for Lee County filed an information

in the Lee County Circuit Court charging Petitioner with robbery with a firearm. 1

Prior to trial, Petitioner moved the Circuit Court to suppress Edison’s photo

identification of him on the ground that the identification was tainted. Following




      1
          As indicated above, Petitioner was convicted of the lesser-included offense of robbery.
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an evidentiary hearing, the court suppressed the identification. 2 At trial, both

Edison and Blue identified Petitioner as the culprit.3

                                                 I.

       Petitioner challenged the validity of Edison’s in-court identification in

appealing his conviction to the Florida District Court of Appeal. In affirming

Petitioner’s conviction, the court rejected the challenge “without comment.”

McDonald v. State, 946 So.2d 1266 (Fla. 2d DCA 2007).

       A conviction “based on eyewitness identification at trial following a pretrial

identification by photograph [should be set aside] only if the photographic

identification procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” Simmons v. United States,

390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). If, as here, the

court determines that the original identification procedure was unduly suggestive,

it must consider whether, under the totality of the circumstances, the identification

was nonetheless reliable. United States v. Diaz, 248 F.3d 1065, 1102 (11th Cir.

2001). To determine if an identification is reliable, the court considers the factors

the Supreme Court established in Neil v. Biggers: (1) the witness’s opportunity to

       2
          The police had obtained Edison’s identification of Petitioner’s photograph by showing
her the photograph after she failed to identify him when shown a six-card photo-pac line-up.
       3
          The court overruled, though, defense counsel’s objection to Edison’s in-court
identification of Petitioner. We note that before Edison testified, the court informed defense
counsel that he could cross-examine Edison about the suggestive procedure the police had used
(during its investigation of the robbery) to obtain her identification of Petitioner’s photograph.
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view the perpetrator; (2) the degree of attention; (3) the accuracy of the

description; (4) the witness’s level of certainty at the time of confrontation; and (5)

the length of time between the crime and the identification. 409 U.S. 188,

199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); see also Diaz, 248 F.3d at

1102. When the indicia of reliability are outweighed by the corrupting effect of the

suggestive practices, the identification should be suppressed. Manson v.

Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977).

Although the ultimate conclusion as to the reliability of the identification is a

mixed question of law and fact not governed by the § 2254(d) presumption of

correctness, analysis of each of the Biggers factors is an issue of fact governed by

the presumption. Jones v. Newsome, 846 F.2d 62, 64 (11th Cir. 1988).

      In considering Petitioner’s Biggers claim, the District Court referred to the

Circuit Court’s finding that Edison’s identification of Petitioner was reliable.

             The testimony was that the defendant . . . robbed the store in
      which [Edison] was a customer. [Edison] testified that she stood side
      by side with the defendant for several moments and the defendant
      noticing that at that time, he then took further action and told the
      witness to get in the back room. The witness then looked directly in
      the face for a few seconds and she also indicated that she told the
      detective handling the investigation a complete full description of the
      defendant and was fairly precise in that description. The witness was
      then called to the Police Department several days later but could not
      come so the detectives came to her house where the lineup of pictures
      were shown to the witness.
             The Court further finds that the testimony of the time that the
      witness was able to view the victim during the crime plus her
      description given to the detective before any pictures were shown
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      established sufficiently that the witness was identifying the defendant
      from her own personal observations and her recollections were
      indicated to the Police Department before any pictures were shown.
      Therefore, any direct identification of the defendant by this witness
      will not be suppressed.

See Order on Mot. Suppress, Exh. 1, Vol. II at 24-25. The District Court

concluded, and we do as well, that the District Court of Appeal’s decision

affirming trial court’s in-court identification ruling was not based on “an

unreasonable determination of the facts in light of the evidence presented,” nor was

it “contrary to, or an unreasonable application of,” the Supreme Court’s holding in

Biggers. AEDPA therefore requires that we affirm the District Court’s resolution

of the first issue on appeal.

                                          II.

      Petitioner litigated his ineffective assistance of counsel claim collaterally

under Florida Rule of Criminal Procedure 3.850. The Circuit Court denied the

claim based on the records of suppression hearing on Petitioner’s motion to

suppress Edison’s photo identification of Petitioner as the robber and the trial

proceedings, and the District Court of Appeal affirmed, without opinion.

McDonald v. State, 36 So.3d 98 (Fla. 2d DCA 2010) (Table).

      In assessing the appellate courts’ disposition of Petitioner’s claim, we apply

a “doubly” deferential standard which takes into account § 2254’s deference to

state court decisions and the deference to counsel performance, affirming the state


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court’s “there is any reasonable argument that counsel” acted pursuant to

prevailing professional standards. See Harrington v. Richter, 562 U.S. at ____,

131 S.Ct. at 788 (quotations omitted).

      The Supreme Court set out a two-part inquiry for ineffective assistance of

counsel claims:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
      show that the deficient performance prejudiced the defense. This
      requires showing that counsel’s errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable.


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

674 (1984). A habeas petitioner claiming ineffective assistance of counsel bears

the burden of proof and must prove both prongs of the Strickland test. Johnson v.

Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001). If the defendant makes an

insufficient showing on the either prong, the court need not address the other

prong. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).

      To establish deficient performance, the petitioner must show his counsel’s

performance was objectively unreasonable in light of prevailing professional

norms at the time the representation occurred. Strickland, 466 U.S. at 687-88, 104

S.Ct. at 2064-65. In determining whether counsel’s performance was deficient,

“counsel is strongly presumed to have rendered adequate assistance and made all

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significant decisions in the exercise of reasonable professional judgment.” Id. at

690, 104 S.Ct. at 2066. “The decision as to which witnesses to call is an aspect of

trial tactics that is normally entrusted to counsel.” Blanco v. Singletary, 943 F.2d

1477, 1495 (11th Cir. 1991).

      Prejudice is a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466

U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is one sufficient to

undermine confidence in the outcome. Id. “It is not enough for the defendant to

show that the error[] had some conceivable effect on the outcome of the

proceeding.” Id. at 693, 104 S.Ct. at 2067.

      Petitioner’s ineffective assistance claim was Ground 3 of his Rule 3.850

motion. The trial court rejected the claim thusly:

             Defendant claims that counsel was ineffective for failing to call
      as witnesses Detective Keen, Officer Jelks, and Officer Mansell. [He]
      alleges these . . . witnesses would have testified that [Blue] and
      [Edison] gave no, or vague, descriptions of the suspect, and that
      fingerprints lifted from the scene did not match Defendant. However,
      this information was elicited from [Blue] and [Edison] and testimony
      by [Keen, Jelks, and Mansell] would have been cumulative. Trial
      counsel’s failure to subpoena [the] witnesses is not prejudicial where
      the testimony is presented to the jury by other evidence. Counsel is
      not ineffective for failing to present evidence that was cumulative to
      evidence already presented.

Record, Vol. 10, Tab 16 at 3.




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      The District Court of Appeal, in affirming the trial court’s denial of Rule

3.850 relief, found no error in this ruling. The District Court, in turn, concluded

that the decision was not infirm under § 2254(d)(1) or (2). We find no error in the

District Court’s decision and accordingly affirm its rejection of Petitioner’s

ineffective assistance claim and consequent denial of habeas relief.

                                         III.

      For the foregoing reasons, the judgment of the District Court is

      AFFIRMED.




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