                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 06-14108                   MAR 14, 2007
                            Non-Argument Calendar            THOMAS K. KAHN
                          ________________________               CLERK


                     D. C. Docket No. 05-00629-CV-TWT-1

ABDULLAH M. RASHEED,

                                                             Petitioner-Appellant,

                                     versus

HUGH SMITH, Warden,

                                                           Respondent-Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                        _________________________

                                (March 14, 2007)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Abdullah M. Rasheed, a pro se Georgia prisoner convicted of armed

robbery, aggravated assault, and false imprisonment and serving a 25-year term of

imprisonment, appeals the district court’s denial of his 28 U.S.C. § 2254 petition
for writ of habeas corpus. In his petition, Rasheed asserted, among other things,

the following claims: (1) that the evidence was insufficient to support his

conviction for armed robbery; and (2) that he received ineffective assistance of

counsel based on trial counsel’s failure to challenge the indictment, to investigate

the backgrounds of a state witness and the victims, and to move for a mistrial or

renew Rasheed’s motion for a severance.1 The district court denied habeas relief.

After careful review, we affirm.

       We review a district court’s grant or denial of a § 2254 petition de novo, and

the district court’s underlying factual findings for clear error.                      See Sims v.

Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). In reviewing a state court’s

decision denying habeas relief, a federal court is prohibited from granting habeas

relief unless the state decision was (1) “contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the United States

Supreme Court,” or (2) “based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.”                        28 U.S.C. §



        1
          We discern no error in the district court’s conclusion that the state courts’ analysis of
Rasheed’s ineffective-assistance-of-appellate-counsel claims was not contrary to, nor an
unreasonable application of, clearly established federal law. To the extent Rasheed raises claims
that he did not assert in the district court -- including the assertion that his trial counsel was
ineffective for failing to quash the original indictment, and that his appellate counsel was ineffective
for failing to raise an ineffective-assistance claim against his trial counsel for not challenging the
indictment -- we will not consider them for the first time here.


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2254(d). Moreover, factual findings of state courts are presumed to be correct, and

a habeas petitioner can rebut them only by clear and convincing evidence. See 28

U.S.C. § 2254(e)(1).

      A state court decision is “contrary to” clearly established federal law if either

“(1) the state court applied a rule that contradicts the governing law set forth by

Supreme Court case law, or (2) when faced with materially indistinguishable facts,

the state court arrived at a result different from that reached in a Supreme Court

case.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). An “unreasonable

application” of clearly established federal law may occur if the state court

“identifies the correct legal rule from Supreme Court case law but unreasonably

applies that rule 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.” Id.

      First, Rasheed argues that there was inadequate evidence to support his

conviction for armed robbery. The Supreme Court has held, in the context of a

state prisoner’s habeas challenge to the sufficiency of the evidence to support his

conviction, that the “critical inquiry” is “whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found



                                          3
the essential elements of the crime beyond a reasonable doubt.”         Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original), overruled on other

grounds by Schlup v. Delo, 513 U.S. 298 (1995). The Court noted that it is the

duty of the trier of fact “to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts,” and

stressed that a reviewing court may not substitute its judgment as to whether it

believes the evidence to be sufficient to sustain a conviction. Id. In weighing the

sufficiency of the evidence, the evidence need not rule out every hypothesis except

that of guilt beyond a reasonable doubt. Martin v. Alabama, 730 F.2d 721, 724

(11th Cir. 1994).

      In Georgia, the elements of armed robbery are (1) intent to commit a theft;

(2) taking property of another from a person or the immediate presence of another;

and (3) the use of an offensive weapon to accomplish the taking. O.C.G.A. § 16-8-

41. At Rasheed’s trial, the state presented testimony that co-defendant Vetena Garr

took property from the immediate presence of the victims by the use of an

offensive weapon, within the meaning of § 16-8-41. There was also testimony that

Garr acted with Rasheed’s encouragement and went along with the robbery

because she (Garr) feared that Rasheed would kill or hurt her if she did not comply.




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Moreover, Rasheed testified that he was present during the robbery, and admitted

in a statement that he shared in the proceeds of the crime.

      The Georgia Court of Appeals’ analysis of the sufficiency of the evidence

was not contrary to nor an unreasonable application of clearly established federal

law. The state court specifically cited to the controlling Supreme Court precedent

on such a claim and applied the standard in reaching its decision. The evidence in

this case, viewed in the light most favorable to the jury’s verdict, demonstrates that

a rational juror could have found Rasheed guilty beyond a reasonable doubt of

armed robbery, under Georgia law. Accordingly, the state courts’ analysis was not

contrary to, or an unreasonable application of, the principles of Jackson.

      Turning to Rasheed’s claims of ineffective assistance of counsel, we review

de novo a determination that a habeas claim was procedurally defaulted. Brownlee

v. Haley, 306 F.3d 1043, 1058 (11th Cir. 2002). We also review mixed questions

of law and fact, including ineffective-assistance-of-counsel claims, de novo. Id.

      The clearly established law on ineffective-assistance-of-counsel claims is set

forth in Strickland v. Washington, 466 U.S. 668 (1984), in which the Supreme

Court established a two-prong test for adjudicating such claims. First, a petitioner

must show that counsel’s performance was deficient.           Id. at 687.    The proper

measure of performance is “reasonableness under prevailing professional norms.”



                                          5
Id. at 688. Counsel is “strongly presumed” to have rendered adequate assistance

and to have exercised reasonable professional judgment. Id. at 690.       Counsel’s

performance is deficient if counsel made errors so egregious that he was not

functioning as the counsel guaranteed under the Sixth Amendment. Id. at 687.

       Second, a movant must show that the deficient performance prejudiced the

defense. Id. To prove prejudice, a movant must show that there is a reasonable

probability that the outcome would have been different but for counsel’s

unprofessional errors. Id. at 694. “It is not enough for the defendant to show that

the errors had some conceivable effect on the outcome of the proceeding.” Id. at

693.

       Here, the Georgia Court of Appeals’ analysis of Rasheed’s ineffective-

assistance-of-counsel claim based on trial counsel’s alleged failure to investigate

was neither contrary to, nor an unreasonable application of, the well-established

law of Strickland. The state court identified the correct standard and applied it to

the factual findings, which were not clearly erroneous and, indeed, were fully

supported by the testimony presented at the evidentiary hearing on Rasheed’s

motion for a new trial. The Georgia court found that Rasheed’s trial counsel had

made a tactical decision concerning the scope of his investigation into whether the

scene of the armed robbery -- a food mart -- was, in actuality, a drug dealing



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establishment.       Counsel testified that such a theory was inconsistent with

Rasheed’s theory of defense, which was that Rasheed had no connection to the

robbery other than merely being present.                Thus, the Georgia court concluded

Rasheed had not satisfied his burden on the performance prong of the Strickland

ineffective-assistance test.2         This conclusion was not contrary to, or an

unreasonable application of, Strickland.

       Likewise, the denial of Rasheed’s claim of ineffective assistance of counsel

for failure to move for a mistrial or renew a motion for a severance was not

contrary to, or an unreasonable application of, Strickland. During the hearing on

Rasheed’s motion for a new trial, the trial court specifically stated that had counsel

moved for a mistrial, it would not have granted the motion. Moreover, the Georgia

Court of Appeals noted that if such a motion had been filed, and denied, such a

ruling would not have been disturbed on appeal. Thus, trial counsel’s performance

was not deficient under Strickland -- the filing of a mistrial motion, or a motion for

severance, would have been futile and thus, counsel’s decision not to pursue this




       2
           Given Rasheed’s failure to satisfy the first prong, the state court was not required to
consider the second prong. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000). We
observe, however, that the court concluded that Rasheed’s ineffective-assistance claim based on trial
counsel’s investigation also failed on the prejudice prong.


                                                 7
course of action was not deficient under Strickland. For the same reasons, Rasheed

has failed to show prejudice as to this claim.3

       Accordingly, the district court did not err in denying the petition for writ of

habeas corpus.

       AFFIRMED.




       3
           With respect to Rasheed’s ineffective-assistance claim for failure to file a renewed
motion for a severance, the Georgia Court of Appeals concluded that Rasheed had waived this claim
by not raising it on direct appeal. The existence of an adequate and independent state ground for
denial of the claim procedurally bars this Court’s review. See Upshaw v. Singletary, 70 F.3d 576,
579 (11th Cir. 1995). Moreover, Rasheed has not shown cause for the default and actual prejudice,
nor has he established a fundamental miscarriage of justice sufficient to excuse the default.


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