                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            May 15, 2008
                             No. 07-11072                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

               D. C. Docket No. 06-00151-CV-ORL-19JGG

BRADLEY W. BOLAND,



                                                          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
                     _________________________

                              (May 15, 2008)

Before CARNES, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
      Bradley Boland, a Florida prisoner, appeals the denial of his petition for a

writ of habeas corpus. 28 U.S.C. § 2254. Boland argued that appellate counsel

was ineffective for failing to argue on direct appeal that the trial court violated

Boland’s rights under the Confrontation Clause when it admitted testimony from

his first trial at his second trial. We granted a certificate of appealability to resolve

“[w]hether the district court erred in evaluating the prejudice prong of appellant’s

ineffective-assistance-of-appellate-counsel claim.” Because it was not an

unreasonable application of clearly established federal law for the Florida courts to

conclude that the admission of the testimony was harmless error, we affirm.

                                  I. BACKGROUND

      Boland was charged for the first degree murder of Christopher Hilbert.

Boland was robbed at gunpoint and believed that Hilbert had participated in the

robbery. Boland enlisted Michael Kurpiewski and Hilbert to help Boland move

from his apartment but, after the two arrived at the apartment, Boland convinced

Hilbert to assist him with a robbery. Kurpiewski left Boland and Hilbert on a

remote road ostensibly to commit the robbery. When Kurpiewski returned, he saw

Boland standing alone on the road holding a chrome semi-automatic handgun.

      In response to Kurpiewski’s inquiries about Hilbert, Boland said that it was

“none of [Kurpiewski’s] business” and, if Kurpiewski said anything, he and his



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family “would be taken care of.” When Kurpiewski backed up to leave the road,

he saw a body and blood on the ground and thought he might have run over the

body. Kurpiewski surmised that Boland had killed Hilbert. Kurpiewski and

Boland used the car of Boland’s girlfriend to dispose of the gun and rented a U-

Haul trailer to move Boland’s belongings. Boland later disclosed to his girlfriend

that he had “set up” Hilbert.

      One issue at trial was the timeline of events. Boland alleged that he was

with his girlfriend at the time of the murder, but testimony from Kurpiewski and

Boland’s girlfriend placed Boland at the scene at the estimated time of Hilbert’s

death. To support the timeline, the state called Christopher Hoffman, an assistant

manager at U-Haul, to authenticate a time-stamped receipt from the store. Boland

did not cross-examine Hoffman and did not object to admission of the receipt. The

trial ended with a hung jury.

      At Boland’s second trial, the state moved to read Hoffman’s testimony into

evidence. Boland’s trial counsel objected and argued that admission of the former

testimony would violate Boland’s right to cross-examination. The state argued that

Hoffman was unavailable because he was on vacation. The trial court admitted the

testimony under a Florida statute that permitted the introduction of former

testimony without evidence that the witness was unavailable. See Fla. Stat. §



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90.803(22). The jury found Boland guilty of the murder, and Boland was

sentenced to life imprisonment without the possibility of parole. Boland appealed

his conviction and did not raise the Confrontation Clause issue. A Florida court

affirmed Boland’s conviction without opinion.

      Boland filed pro se a petition for a writ of habeas corpus in a Florida court.

Boland argued that appellate counsel provided inadequate assistance under

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), when he failed to

argue the Confrontation Clause issue. An appellate court denied the petition

without opinion and denied Boland’s motion for rehearing.

      Boland filed a federal habeas petition and repeated his claim of ineffective

assistance of appellate counsel. Boland alleged that he would have prevailed on

appeal because the Supreme Court of Florida declared the Florida statute

unconstitutional based on the Confrontation Clause while Boland’s case was

pending on direct appeal. See State v. Abreu, 837 So. 2d 400 (Fla. 2003). The

district court ruled that appellate counsel was “arguably deficient” when he failed

to raise the issue for appellate review, but the district court concluded that Boland

was not prejudiced by counsel’s oversight. The district court concluded that the

error was harmless because the testimony was not crucial and was “cumulative”

and “corroborated.”



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                          II. STANDARD OF REVIEW

      We review de novo the denial of a petition for a writ of habeas corpus.

Clark v. Crosby, 335 F.3d 1303, 1307 (11th Cir. 2003). An issue of ineffective

assistance of appellate counsel presents a mixed question of law and fact that we

review de novo. Id.

                                 III. DISCUSSION

      Boland presents three arguments on appeal. First, Boland argues that a

provision of a federal statute, 28 U.S.C. § 2254(d), is unconstitutional. Second,

Boland contends that the summary adjudication of his claim in state court is not

entitled to deference. 28 U.S.C. § 2254(d)(1). Third, Boland argues that he is

entitled to relief on his claim of ineffective assistance of appellate counsel. We

address each argument in turn.

      A. Boland’s Constitutional Argument Is Outside the Scope of the COA.

      Boland argues for the first time on appeal that section 2254(d) is

unconstitutional. Our scope of review is limited to those issues presented in the

certificate of appealability. Maharaj v. Sec’y for the Dep’t of Corr., 432 F.3d

1292, 1302 (11th Cir. 2005). Boland’s argument is outside the scope of the

certificate. We dismiss it.




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B. The Summary Adjudication of Boland’s Ineffective Assistance Claim by the State
                       Court Is Entitled to Deference.

      Boland’s argument that the summary decision of the state court is not

entitled to deference fails. The plain language of section 2254(d) requires “a

rejection of the claim on the merits, not an explanation.” Wright v. Sec’y for the

Dep’t of Corr., 278 F.3d 1245, 1254–55 (11th Cir. 2002). A summary rejection,

without discussion, qualifies as an adjudication on the merits and warrants

deference. Id. at 1253–54; e.g., Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338,

1347 (11th Cir. 2005) (“Even a summary, unexplicated rejection of a federal claim

qualifies as an adjudication entitled to deference under § 2254(d).” (citing Parker v.

Sec’y for the Dep’t of Corr., 331 F.3d 764, 775–76 (11th Cir. 2003)). Although

the state court denied Boland’s claim of ineffective assistance of appellate counsel

without explanation or citation to authority, the summary denial qualifies as an

adjudication on the merits and is entitled to deference under section 2254(d)(1).

Parker, 331 F.3d at 776 (“the summary nature of [the] . . . decision does not lessen

the deference that [it] is due” (quoting Wright, 278 F.3d at 1254)). The district

court correctly gave deference to the decision by the state court.

   C. The Decision by the State Court Was Not Contrary To or an Unreasonable
                 Application of Clearly Established Federal Law.

      A petitioner is entitled to a writ of habeas corpus only if the state court



                                           6
reached a decision that was “contrary to, or involved an unreasonable application

of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A decision is

“contrary to” precedent if either the state court reached a conclusion opposite to

that reached by Supreme Court on a question of law or the state court was

presented with facts that are “materially indistinguishable” from relevant Supreme

Court precedent, but arrived at a contrary result. Putman v. Head, 168 F.3d 1223,

1241 (11th Cir. 2001). A state court makes an “unreasonable application” of

clearly established federal law if the 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.

      To establish ineffective assistance of appellate counsel, a defendant must

prove that counsel provided deficient representation and the performance

prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Cross v.

United States, 893 F.2d 1287, 1290 (11th Cir. 1990). Counsel’s performance is

deficient only if it falls below the wide range of competence demanded of

attorneys in criminal cases. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; Heath

v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). A petitioner satisfies the prejudice

element if he establishes that “counsel’s conduct so undermined the proper

functioning of the adversarial process that the [appeal] cannot be relied on as



                                           7
having produced a just result.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064. To

determine prejudice, the reviewing court must first review the merits of the claim

omitted from the direct appeal. Cross, 893 F.2d at 1290. That examination

requires that we determine whether the state court would have applied harmless

error review. Heath, 941 F.2d at 1136–37.

      We must consider whether there was a reasonable probability that on direct

appeal the state court, if informed that Boland objected to the admission of

testimony under the Florida statute later declared unconstitutional, Fla. Stat. §

90.803(22), would have granted Boland a new trial. See Clark v. Crosby, 335 F.3d

1303, 1312 n.9 (11th Cir. 2003). While Boland’s case was pending on appeal, the

state appellate court held that section 90.803(22) violated the Confrontation

Clause. See Abreu, 804 So. 2d at 443; see also Jenkins v. State, 803 So. 2d 783,

786–87 & n.2 (Fla. Dist. Ct. App. 2001) (applying Abreu to depositions presented

in a civil commitment hearing). That potential violation of Boland’s right to

confrontation was subject to review for harmless error. See Hopkins v. State, 632

So. 2d 1372, 1377 (Fla. 1994) (citing Coy v. Iowa, 487 U.S. 1012, 1021–22, 108 S.

Ct. 2798, 2803 (1988)).

      On collateral review, it was reasonable for the state court to conclude that

Boland could not establish “prejudice” because the decision to admit Hoffman’s



                                           8
testimony was harmless error. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

Hoffman’s testimony was relevant to establish that Kurpiewski rented a U-Haul

trailer at 1:17 p.m., but this fact was cumulative to testimony from Boland’s

girlfriend that she drove Boland and Kurpiewski to the U-Haul rental office around

12:30 p.m., and testimony from Kurpiewski that he had rented a U-Haul after the

murder. Other circumstantial evidence also proved Boland’s guilt. Kurpiewski

testified that he saw Boland at the scene of the crime with a gun in his hand and he

observed Hilbert’s bloody body on the rural road. Kurpiewski also explained

Boland’s motive to kill Hilbert. Boland admitted to his girlfriend that he had “set

up” Hilbert, and he used her vehicle to dispose of the murder weapon.

      The district court correctly denied Boland habeas relief. It was reasonable

for the state courts to conclude that Boland was not prejudiced when counsel failed

to argue the Confrontation Clause issue on direct appeal because the error was

harmless. The conclusion by the state court that appellate counsel was not

ineffective is not contrary to or an unreasonable application of clearly established

federal law.

                                IV. CONCLUSION

      The denial of Boland’s petition is AFFIRMED.




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