                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________          FILED
                                               U.S. COURT OF APPEALS
                            No. 09-14520         ELEVENTH CIRCUIT
                                                     MAY 3, 2010
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                       CLERK

                 D. C. Docket No. 08-01518-CV-ODE-1

ANTONIO BERNARD COCHRAN,



                                                         Petitioner-Appellant,

                                 versus

DAVID FRAZIER,

                                                       Respondent-Appellee.


                      ________________________

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

                             (May 3, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
      Antonio Bernard Cochran appeals, pro se, the district court’s denial of his 28

U.S.C. § 2254 habeas petition. Cochran was convicted in 1998 of felony murder,

aggravated assault, and possession of a firearm, after shooting an unarmed person

who approached his car. He argues that he received ineffective assistance of

counsel on appeal because his attorney failed to argue the ineffectiveness of his

trial attorney in not requesting a jury instruction on the use of force in defense of

habitation. Cochran claims that in Benham v. State, 591 S.E.2d 824 (Ga. 2004),

the Georgia Supreme Court found on similar facts that an attorney’s failure to

request an instruction on the specific defense of habitation was ineffective

assistance of counsel. Therefore, Cochran argues, the state habeas court’s denial of

his ineffective-assistance claim was contrary to or an unreasonable application of

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).

He also contends that the state court decision was based on an unreasonable

determination of the facts. Moreover, he asserts that the state habeas court violated

the Georgia Constitution by not following the decision of the Georgia Supreme

Court in Benham.

      When reviewing the denial of a § 2254 petition, we review “questions of law

and mixed questions of law and fact, including ineffective assistance of counsel

claims, de novo, and review[s] findings of fact for clear error.” Pardo v. Secretary,



                                           2
Florida Dept. of Corrs., 587 F.3d 1093, 1098 (11th Cir. 2009). We may decline to

address an issue where a party fails to provide arguments on the merits in its brief.

See United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006).

      A federal court may not grant a writ of habeas corpus for a state prisoner

where the claim was adjudicated on the merits by a state court unless the state

habeas court’s decision “was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1). A federal court may grant relief,

however, if the state court’s adjudication of the claim “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.” Id. at § 2254(d)(2).

      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). “[O]nly Supreme

Court precedent can clearly establish the law.” Van Poyck v. Florida Dept. of

Corrs., 290 F.3d 1318, 1322 n.4 (11th Cir. 2002). An “unreasonable application”

of clearly established federal law may occur if the state court “identifies the correct



                                           3
legal rule from Supreme Court case law but unreasonably applies that rule to the

facts of the petitioner’s case.” Putman, 268 F.3d at 1241. “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.

      Criminal defendants have a right to effective assistance of counsel.

Strickland, 466 U.S. at 684-86, 104 S. Ct at 2063. To prevail on a claim of

ineffective assistance of counsel, the defendant must demonstrate both (1) that his

counsel’s performance was deficient, i.e., the performance fell below an objective

standard of reasonableness, and (2) that he suffered prejudice as a result of that

deficient performance. Id. at 687-88, 104 S. Ct at 2064-65. A court need not

“address both components of the inquiry if the defendant makes an insufficient

showing on one.” Id. at 697, 104 S. Ct. at 2069. “The inquiry into whether a

lawyer has provided effective assistance is an objective one: a petitioner must

establish that no objectively competent lawyer would have taken the action that his

lawyer did take.” Van Poyck, 290 F.3d at 1322.

      “To establish deficient performance, a defendant must show that his

counsel’s representation fell below an objective standard of reasonableness in light

of prevailing professional norms at the time the representation took place.”



                                           4
Cummings v. Secretary for Dept. of Corrections, 588 F.3d 1331, 1356 (11th Cir.

2009) (quotation omitted). “In judging the reasonableness of counsel’s

performance, the issue is not what is possible or what is prudent or appropriate, but

only what is constitutionally compelled[, and performance must fall] . . . . outside

the wide range of professionally competent assistance” to be considered deficient.

Id. (quotation omitted). “The Federal Constitution imposes one general

requirement: that counsel make objectively reasonable choices.” Id. (quotation

omitted). “Courts indulge a strong presumption that counsel’s performance was

reasonable and that counsel made all significant decisions in the exercise of

reasonable professional judgment.” Id. (quotation omitted). We have “held many

times that reasonably effective representation cannot and does not include a

requirement to make arguments based on predictions of how the law may

develop.” Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (quotation

omitted).

      Georgia law allows a person to use force to prevent or terminate another

person’s unlawful entry into or attack upon a habitation. However, the person

may only use deadly force if, inter alia, “the entry is attempted in a violent and

tumultuous manner and he reasonably believes that the entry is attempted . . . for

the purpose of assaulting or offering personal violence to any person . . . therein



                                           5
and that such force is necessary to prevent the assault or offer of personal

violence.” See O.C.G.A. § 16-3-23(1) (1997). In July 1998 the Georgia legislature

added to the governing statutory title a definition of habitation, and such definition

included a motor vehicle. O.C.G.A. §16-3-24.1;

http://www.legis.ga.gov/legis/1997_98/leg/fulltext/hb1360.htm.

      In Benham, the Georgia Supreme Court held that trial counsel provided

ineffective assistance of counsel when she failed to request a jury instruction on the

use of force in defense of habitation. 591 S.E.2d at 825. According to the

evidence, the defendant was in her car, and she slashed the victim, who was

attacking from the outside, with a box cutter. Id. The victim struck the first blow

by attacking the defendant through the car window, and it took two attempts to

restrain the victim from continuing the attack. Id. at 825-26. Defense counsel

requested a self-defense instruction, but did not request an instruction on defense

of habitation because she believed self-defense was the best defense for the

defendant. Id. at 826. The Georgia Supreme Court held that counsel was

ineffective under Strickland for not requesting the habitation instruction because

that defense allowed the use of deadly force even if such force “was not necessarily

required” to repel the attack. Id. at 826-27.




                                           6
      The state habeas court’s decision was not contrary to clearly established

federal law because the state court utilized the proper Strickland standard to

determine whether Cochran’s appellate counsel was ineffective, and there does not

exist a Supreme Court case with facts that are materially indistinguishable from the

instant case. Furthermore, the state habeas court’s decision did not involve an

unreasonable application of Strickland. Specifically, trial counsel was not

ineffective for failing to predict either the addition of the definition of habitation

(which included automobiles) to the statutory scheme or the Benham holding and,

therefore, appellate counsel was not ineffective for failing to argue that trial

counsel was ineffective on this ground. We decline to address Cochran’s

conclusory assertion that the state habeas court’s decision was based on an

unreasonable interpretation of the facts in light of the evidence.

AFFIRMED.      1




      1
             Cochran’s request for oral argument is denied.

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