                                                                [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-10641         ELEVENTH CIRCUIT
                                                            SEPTEMBER 28, 2011
                                   Non-Argument Calendar
                                                                 JOHN LEY
                                 ________________________
                                                                  CLERK

                           D.C. Docket No. 5:06-cv-00048-SPM-MD



JAVIER RAMOS,

lllllllllllllllllllll                                             Petitioner - Appellant,

                                           versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

lllllllllllllllllllll                                            Respondent - Appellee.


                                ________________________

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

                                     (September 28, 2011)



Before HULL, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
       Javier Ramos, a Florida state prisoner, appeals, through counsel, the district

court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. The district court granted a certificate of appealability (“COA”) as to the

following five claims: whether Ramos’s counsel, Richmond1, was ineffective for

failing to (1) object to the state medical examiner’s testimony as scientifically

unreliable, speculative, and beyond the medial examiner’s expertise; (2) object to

the use of the state’s computer-generated animation on the basis that the state did

not lay a proper foundation as required by Pierce v. State, 718 So. 2d 806, 809

(Fla. Dist. Ct. App. 1997); (3) hire a forensic expert to rebut the medical

examiner’s testimony; (4) file a motion to suppress Ramos’s post-arrest statement

where counsel testified that he strategically decided not to file such a motion; and

(5) object to the state’s closing argument as being inflammatory and expressing an

opinion as to Ramos’s guilt. We expanded the COA to consider whether the

district court erroneously found that Ramos had not exhausted his claims that the

trial court violated his right to due process when it: (1) admitted the medical

examiner’s testimony, (2) admitted the state’s computer-generated animation, (3)




       1
          Ramos had two trial attorneys, Harold and Jim Richmond. For ease of discussion, we
refer to trial counsel simply as “Richmond.”

                                               2
denied his motion for a judgment of acquittal, and (4) denied his request for an

“independent acts” jury instruction.

                                BACKGROUND

      Javier Ramos and Joe Clark shared an apartment in Panama City, Florida in

late summer of 1994. Ramos then moved to Miami but returned to Panama City

on October 2, 1994. Before he left Miami, he told a dancer at the exotic dance

club he managed that he had to take care of people in Panama City. When she

asked him if he planned to murder anyone, he said he would if he had to.

      While in Panama City, Ramos gave Clark a .22 caliber pistol. Ramos

owned a .38 Beretta. They entered a nightclub called the Show-N-Tail to speak

with Chris McConnell, the manager. It is unclear what happened after they

entered the club—but four men were dead when the shooting ended including

Tony Lands, a maintenance man who was in the club to collect his paycheck.

There were sixteen gunshot wounds among the four men, and each had been shot

twice in the head. Ramos drove Clark to their old apartment and then continued

on to Miami. Ramos was arrested shortly after he arrived in Miami.

      Ramos asked for a lawyer in Miami and was not questioned. He was

transported to Panama City in a small plane with police officers from Panama

City. During the ride he was told that Clark cooperated with the police. At

                                         3
Panama City headquarters, he again asked for a lawyer but was advised it would

take some time for one to be appointed, so he gave a statement. His statement

indicated that Clark shot two of the men suddenly and without warning. He said

that Clark then unexpectedly shot McConnell. Ramos also stated he shot Lands in

self-defense because Lands appeared suddenly, and he saw Lands move his hands

as if he were reaching for a gun (which Ramos knew Lands carried). Clark and

Ramos were charged with four counts of first degree murder. In a joint trial with

two separate juries, Clark was acquitted on all counts and Ramos was convicted of

first degree murder of Lands, second degree murder of McConnell, and

manslaughter of the other two men. Ramos was sentenced to life imprisonment

for Lands’s murder and lengthy concurrent sentences for the other homicides.

Ramos’s conviction and sentences were affirmed without opinion on direct appeal.

Ramos’s motion for post-conviction relief was denied, and the denial was affirmed

on appeal without opinion. Ramos v. State, No. 04-0672 (Fla. Dist. Ct. App. Sept.

27, 2005). Ramos filed this timely petition for a writ of habeas corpus which the

district court denied. This appeal followed.

                                  DISCUSSION

      We review the district court’s denial of a habeas petition de novo and

factual findings for clear error. McNair v. Campbell, 416 F.3d 1291, 1297 (11th

                                         4
Cir. 2005). Mixed questions of law and fact, like an ineffective assistance of

counsel claim, are reviewed de novo. Id. Under 28 U.S.C. § 2254(d):

         An application for a writ of habeas corpus on behalf of a person in
         custody pursuant to the judgment of a State court shall not be granted
         with respect to any claim that was adjudicated on the merits in State
         court proceedings unless the adjudication of the claim–

         (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.

28 U.S.C. § 2254(d). “[C]learly established Federal law” refers to the “governing

legal principle or principles set forth by the Supreme Court at the time the state

court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72, 123 S. Ct.

1166, 1172 (2003) citing Williams v. Taylor, 529 U.S. 362, 412 (2000). We

review a petitioner’s claim de novo where the state court “made an unreasonable

factual determination.” Jones v. Walker, 540 F.3d 1277, 1288 (11th Cir. 2008) (en

banc).

                  I. INEFFECTIVE ASSISTANCE OF COUNSEL

         In habeas petitions, state court and district court findings of historical fact

are subject to the presumption of correctness unless clearly erroneous. Collier v.



                                              5
Turpin 177 F.3d 1184, 1198 (11th Cir. 1999). Ineffective assistance of counsel is

a mixed question of law and fact, so we review the district court’s determinations

de novo. McNair, 416 F.3d at 1297. To prevail on a claim of ineffective

assistance of counsel, a habeas petitioner must show that: (1) counsel’s

performance was deficient, falling below an objective standard of reasonableness;

and (2) “the deficient performance prejudiced the defense.” Strickland v.

Washington, 466 U.S. 668, 687– 88, 104 S. Ct. 2052, 2064 (1984).

      In challenging the sufficiency of counsel’s performance, habeas petitioners

must overcome a strong presumption that counsel was adequate and exercised

reasonable professional judgment when making significant decisions. Id. at 690,

104 S. Ct. at 2066; Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir.

2000) (en banc) (citation omitted). Counsel will not be found ineffective if the

approach taken could be considered sound trial strategy. Strickland, 466 U.S. at

1314, 104 S. Ct. at 2065. Courts must approach counsel’s challenged conduct

from the counsel’s perspective at the time. Id. at 689, 104 S. Ct. at 2065.

      The prejudice prong requires a showing of reasonable probability that the

outcome would have been different but for counsel’s errors. Id. at 694, 104 S. Ct.

at 2068. For guilt phase claims of ineffective assistance, it is not enough to show

that the error had a “conceivable effect on the outcome”; the error must undermine

                                          6
confidence in the outcome and create a reasonable doubt as to whether, without

the challenged error, the fact finder would have found reasonable doubt. Id. at

695, 104 S. Ct. at 2067-68. To make this determination, we review “the totality of

the evidence before the judge or jury.” Id. at 693, 104 S. Ct. at 2069.

      To succeed on an ineffective assistance of counsel claim, the defendant

must prove both prongs of the test; a reviewing court need not address the

performance prong of the test if the petitioner cannot meet the prejudice prong and

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

                                         A.

      Ramos first claims that Richmond’s representation was ineffective due to

his failure to object to the medical examiner’s testimony as scientifically

unreliable, speculative, and beyond the medial examiner’s expertise. The medical

examiner testified as to the position of the victims’ bodies when they were shot.

      The district court found that the state court’s ruling on this claim was

unreasonable, so we review it de novo. 28 U.S.C. § 2254(d); Jones v. Walker, 540

F.3d at 1288 n.5. We begin our analysis with the prejudice prong of the Strickland

test. Ramos can only prevail if he can prove that Richmond’s proper objection

could have reasonably led to the creation of reasonable doubt in the mind of the

fact finder.

                                          7
      The decision to admit expert testimony in Florida is left to the trial court’s

discretion and reversed only on a finding of clear error. Terry v. State, 668 So. 2d

954, 960 (Fla. 1996). The court must make two factual determinations prior to

certification of an expert. The court must decide first whether the subject matter is

proper for expert testimony and, second, whether the witness is adequately

qualified to express an opinion in the matter. Id. (citations omitted). Experts may

express opinions on matters in which they have expertise when it is in response to

facts disclosed at or before trial. Id.

      Ramos argues that the medical examiner’s use of conditional language in

explaining her theory (“either...or,” “may have,” “could have”) rendered her

testimony unhelpful to the jury. This language presents multiple possibilities for

body location to the jury, which the jury was free to weigh. Juries may weigh the

evidence presented by witnesses, including expert witnesses, based on credibility.

This language does not render the state court’s finding of helpfulness clearly

erroneous.

      Ramos next argues that the medical examiner did not have the requisite

expertise to testify as she did. Here, the trial court reviewed the medical

examiner’s record and made a determination that her education, knowledge, skill,

experience, and training qualified her as a forensic pathologist capable of

                                          8
expressing opinions on the position of the bodies. This determination is not

clearly erroneous. See Terry, 668 So. 2d at 960–61 (stating that while there may

be a dispute over the weight to be given to a medical examiner’s testimony

regarding a victim’s body position before death, admissibility of such an expert to

testify is within the trial court’s discretion and does not represent a clear showing

of error.).

       As a result, Ramos is unable to convince us that, had trial counsel objected

to the medical examiner’s testimony or expertise, the testimony would have been

disallowed. Absent this showing, he does not meet the prejudice prong of the

Strickland test and is therefore not entitled to relief on this ground.

       Additionally, while the medical examiner’s testimony damaged Ramos’s

self-defense theory, even without the testimony of the medical examiner there was

sufficient evidence of Ramos’s guilt on which a reasonable jury could base a

guilty conviction. Prior to leaving Miami, Ramos had a conversation with a

dancer at his nightclub who testified that he told her he had to take care of people

in Panama City and would kill if necessary. Ramos testified at trial that he shot

Tony Lands first in the chest, and then again after Lands’s legs buckled in self-

defense. Since Ramos testified, the jury was free to disbelieve his self-defense

argument and to use his testimony as substantive evidence that he shot Lands with

                                           9
premeditation. United States v. Williamson, 339 F.3d 1295, 1301 n.14 (11th Cir.

2003) (“[The defendant] testified in her own defense . . . [so] the jury was free to

disbelieve her and use her testimony as substantive evidence proving her guilt.”).

Based on this evidence, there is no reasonable probability that the jury would have

found that Ramos did not shoot Lands with premeditation absent the medical

examiner’s testimony. Accordingly, Ramos is not entitled to relief on this ground.

                                                  B.

       Ramos next contends that Richmond was ineffective because he failed to

object to the computer-generated animation showing the position of Lands’s body

when he was shot for failure to lay a proper foundation, as required by Pierce v.

State, 718 So. 2d 806 (Fla. Dist. Ct. App. 1997).2 This animation was prepared

using the medical examiner’s testimony. The district court found that the state

court did not properly address the issue raised, so we review the Strickland claim

de novo.



       2
         Pierce stated that for a court to admit a computer animation, the proponent must
establish that “(1) the opinion evidence [is] helpful to the trier of fact; (2) the witness [is]
qualified as an expert; (3) the opinion evidence [is] applied to evidence offered at trial; and (4)...
the evidence, although technically relevant, [does] not present a substantial danger of unfair
prejudice that outweighs its probative value.” 718 So. 2d at 809 (citation omitted). The
proponent must also “establish that the facts or data on which the expert relied in forming the
opinion expressed by the computer animation are of a type reasonably relied upon by experts in
the subject area”, and that “the computer animation [is] a fair and accurate depiction of that
which it purports to be.” Id.

                                                  10
      Pierce is not instructive here. It was decided two years after Ramos’s trial,

and the deciding court recognized that the issue was addressed by “no appellate

court in Florida and by few in other jurisdictions.” Pierce, 718 So. 2d at 807.

Attorneys are not required to make arguments based on predictions of how law

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

(citations and quotation marks omitted). Given this background, Ramos has not

proven that even had the objection been made, the trial court would have excluded

the animation.

      Because Ramos fails to prove that his case was prejudiced by Richmond’s

failure to object to the evidence, Ramos is not entitled to habeas relief on this

ground.

                                           C.

      Ramos next argues that Richmond was ineffective for failing to hire a

forensic expert. The state court applied Strickland to this issue and found that no

grant of extra time or hiring of other forensic experts would have changed the

outcome of the case.

      It is uncontested that the state disclosed the medical examiner who would be

called to testify at trial as a possible witness less than one month before trial.

Through no fault of his own, Richmond was unable to depose this witness and

                                           11
learn that her opinions were contrary to the original medical examiner’s opinions

until four days before the trial began. Richmond moved for continuances for

authorization to retain an expert and to prepare a computer animation. His

motions and continuances were denied, and it does not appear from the record

before us that his motion to retain an expert and to prepare a computer animation

was granted.

      Richmond’s performance is not deficient merely because it is not perfect.

To prove the performance prong of Strickland, Ramos must prove that no other

competent lawyer would have failed to anticipate the state’s tardy disclosure and

the court’s refusal to grant a continuance. He has not done so. Therefore, the state

court’s ruling was consistent with clearly established federal law and reasonably

determined that Richmond’s failure to hire a forensic expert was dictated by time

and cost restrictions, not by deficient performance. Ramos is not entitled to relief

on this ground.

                                         D.

      Ramos argues that Richmond’s decision not to file a motion to suppress his

confession constituted ineffective assistance of counsel. The state court applied

Strickland and determined that Richmond’s decision not to file a motion to

suppress to avoid testimony by the codefendant and to pursue a self-defense claim

                                         12
was a reasonable strategic choice and did not constitute ineffective assistance of

counsel. Whether a choice is a tactical one is a question of fact, entitled to a

presumption of correctness. Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th

Cir. 1998). The reasonableness of such a choice is a question of law and subject

to de novo review. Hardwick v. Crosby, 320 F.3d 1127, 1163 (11th Cir. 2003).

And, as we have stated, habeas relief is only granted when the trial court’s

decision is contrary to or an objectively unreasonable application of clearly

established federal law. 28 U.S.C. § 2254(d)(1).

      The state court found that Richmond’s decision not to file the motion was

tactical. When Richmond made this decision, he had at least two of Ramos’s

codefendant’s statements, he had deposed the firearms expert, he had spent twelve

hours researching the issue and reviewing Ramos’s statement, and he had

determined that Ramos’s position as to who committed the murders was contrary

to his codefendant’s position on the matter. With this information, Richmond

made the decision not to file a motion to suppress. Upon review of the record, we

cannot say that the state court’s application of Strickland was unreasonable in

concluding that Richmond made a reasonable tactical decision not to file the

motion to suppress. Therefore, Ramos is not entitled to relief on this ground.

                                          E.

                                          13
      Ramos’s final Strickland claim is based on Richmond’s failure to object to

the prosecutor’s closing arguments. The state court held that the prosecutor’s

statements were not improper. As stated above, habeas relief is only granted when

the trial court’s decision is contrary to or an objectively unreasonable application

of clearly established federal law. 28 U.S.C. § 2254(d)(1).

      In evaluating prosecutorial indiscretion, the relevant question is “whether

the comments so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181,

106 S. Ct. 2464, 2471 (1986) (citation and quotation marks omitted). A lawyer

may not make “[i]mproper suggestions, insinuations, [or] assertions calculated to

mislead or inflame the jury’s passions” in his closing argument. United States v.

Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009), cert. denied, 131 S. Ct. 413 (2010).

However, improper remarks are harmless error if there is “sufficient independent

evidence of guilt” in the record. Lopez, 590 F.3d at 1256. (citation and quotation

marks omitted).

      At various times during the closing argument, the prosecutor stated that

Ramos “shaded his testimony” and “just wants to con you.” He also described the

defense’s case strategy as like a “jigsaw puzzle” where you have to take the pieces




                                         14
and “fit them in backwards and upside down and corner wise, etc.” Finally, the

prosecutor stated that Ramos was “guilty, guilty, guilty.”

       We cannot say that these statements “infected the trial with unfairness.”

Darden, 477 U.S. at 181, 106 S. Ct. at 2471. Because Ramos testified, the

prosecutor could comment on his testimony. Even without these statements, there

was sufficient evidence to uphold the guilty verdict.3 Thus, the state court’s

application of federal law was neither contrary to clearly stated federal law nor

unreasonable, so Ramos is not entitled to relief on this claim.

                                    II. EXHAUSTION

       Findings of exhaustion by the district court in § 2254 cases are mixed

questions of law and fact, and we review them de novo. Mauk v. Lanier, 484 F.3d

1352, 1357 n.3 (11th Cir. 2007).

       For a federal court to hear a habeas claim resulting from a state conviction,

the petitioner must first exhaust the remedies available in his state’s courts. 28

U.S.C. § 2254(b)(1)(A). This requirement is not satisfied if the prisoner fails to

raise a federal claim in the state court, see, e.g., Bailey v. Nagle, 172 F.3d 1299,

       3
         At the time of closing argument, there was (1) testimony that Ramos told an employee he
was going to Panama City to deal with some people, killing them if necessary, (2) Ramos’s
testimony on the stand that he supplied his codefendant with a weapon used in the shooting and
that he shot one of the victims in self-defense, (3) evidence of Ramos’s ownership of one of the
two guns recovered by the police, and (4) identification evidence of Ramos at the scene of the
crime immediately after the murders occurred.

                                              15
1303 (11th Cir. 1999) (per curiam), or fails to raise a claim in terms of federal law,

see, e.g., Gray v. Netherland, 518 U.S. 152, 162–63, 116 S. Ct. 2074, 2081 (1996)

(“[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus

must include reference to a specific federal constitutional guarantee, as well as a

statement of the facts that entitle the petitioner to relief.”). A claim is only

exhausted if it is fairly presented to the state courts, meaning that the same claim

must be brought before both the state and federal courts and presented in such a

way “that a reasonable reader would understand [the] claim’s particular legal basis

and specific factual foundation.” McNair v. Campbell, 416 F.3d 1291, 1302 (11th

Cir. 2005) (citation and quotation marks omitted).

      In Baldwin v. Reese, the Supreme Court stated that citing the federal source

of law in conjunction with the state law claim, or citing a case deciding such a

claim on federal grounds, or simply labeling the claim federal is sufficient to fairly

present a claim. 541 U.S. 27, 32, 124 S. Ct. 1347, 1351 (2004). In McNair, we

applied this standard by looking at the underlying purpose of exhaustion—to

“afford the state courts a meaningful opportunity to consider allegations of legal

error without interference from the federal judiciary.” McNair, 416 F.3d at 1302

(citation and quotation marks omitted). Given this purpose, we held that the

Baldwin language discussing adequate means to identify federal issues to the

                                           16
lower state courts was dicta and that a federal issue requires more than a

sprinkling of federal citations, and more than “some makeshift needles in the

haystack of the state court record.” McNair, 416 F.3d at 1303.

      Ramos claims that his federal due process rights were violated when the

court (1) admitted the medical examiner’s testimony, (2) admitted the state’s

computer generated animation, (3) denied his motion for a judgment of acquittal,

and (4) denied his request for an “independent acts” jury instruction.

      First, Ramos claims denial of due process in the admission of the testimony

of the medical examiner into evidence. In his brief to the District Court of Appeal

of Florida, Ramos made one passing reference to federal law. He stated that “this

evidence was so devastatingly prejudicial that its introduction violated his Florida

and federal constitutional rights to due process and a fair trial and the error was

fundamental and, thus, must be considered by this court even absent objection.”

Nowhere in his argument does he argue federal standards, nor does he include

references to federal case law. While other Circuits have interpreted Baldwin

differently, as Ramos discusses in his brief, we have required more than “needles

in the haystack.” McNair, 416 F.3d at 1303. But see Jackson v. Edwards, 404

F.3d 612, 618–22 (2d Cir. 2005) (focusing on the degree of similarity of the state

law claims and federal law claims in deciding exhaustion for the purpose of

                                          17
habeas). In McNair, we found that a citation to a single federal case in a string of

cases, and a passing reference in the conclusion of an argument to various

amendments of the Constitution did not fairly present the federal issue to the state

court, barring federal habeas review for lack of exhaustion in the state courts. 416

F.3d at 1303-04.

      Similarly, here Ramos mentions his federal constitutional rights only in an

opening paragraph. This reference did not fairly present the issue to the state

court, and so it has not been exhausted. Our holding in McNair does not depend

on whether the state and federal standards for each issue were identical, but rather

whether the state court was on notice of the federal claim. Id. at 1304. Here, the

state court was not on notice of the due process claim in his objection to the

admission of evidence, so the issue was not properly exhausted in the state court.

      Second, Ramos argues that the admission of the computer-generated

animation violated his due process rights. In his appellate brief in the state court,

he mentioned that the admission of the animation violated his “constitutional right

to a fair trial” and due process rights. Again, his legal argument is confined to

state law and state standards. Applying McNair, Ramos’s brief did not put the

state court on notice of the federal issue, and so he did not exhaust the federal

question in state court and we therefore cannot grant the relief he seeks.

                                          18
      Next, Ramos argues that the state did not sufficiently prove his guilt as to

the premeditation of the murder of Lands, and so his motion for acquittal was

improperly denied. Ramos did not address any federal law in this argument,

except for a passing reference to the Constitution. He states “[t]he [circumstantial

evidence] rule implicates a defendant’s Florida and federal constitutional rights to

due process.” These passing references to the Constitution are akin to the

“needles in the haystack” that we explicitly sought to avoid in our interpretation of

Baldwin. McNair, 416 F.3d at 1303. This reference did not properly put the state

court on notice of the federal issue, and so we find that his claim has not been

exhausted by the state courts.

      Finally, Ramos argues that the trial court erred in denying his request for an

“independent acts” jury instruction. As with the other three issues, Ramos makes

no reference to federal law other than in the conclusion of his law section, stating

that the failure to issue such an instruction denies “Florida and federal

constitutional rights to due process and a fair trial.” Here again, Ramos failed to

properly exhaust the federal issue in the state court, and so we cannot grant relief.

                                   CONCLUSION

      Ramos’s counsel was not constitutionally ineffective, and Ramos failed to

fully exhaust the federal issues in the state courts.

                                           19
AFFIRMED.




            20
