                                                              [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 11-12204         ELEVENTH CIRCUIT
                            Non-Argument Calendar        APRIL 26, 2012
                          ________________________        JOHN LEY
                                                            CLERK
                      D.C. Docket No. 1:10-cv-22406-MGC



BRUCE L. SMALL,


                                                           Petitioner-Appellant,

                                     versus

FLORIDA DEPARTMENT OF CORRECTIONS,

                                                           Respondent-Appellee.

                          ________________________

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

                                 (April 26, 2012)

Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Bruce Small, a Florida state prisoner, appeals the district court’s denial of
his petition for habeas corpus pursuant to 28 U.S.C. § 2254. A Florida state jury

convicted Small of selling heroin. At trial, Small argued a misidentification

defense, and attempted to, in part, demonstrate the arresting officers’ uncertainty as

to the parties to the drug transaction by showing that they knew that a third party

named “Rooster” was a local drug dealer. The only witness that Small called

during his defense was one of the arresting officers in order to clarify his testimony

during the prosecution’s case.

      Pursuant to the district court’s certificate of appealability, Small argues on

appeal that (1) the trial court violated his Sixth Amendment right to confront

adverse witnesses when it sustained the prosecution’s objection to his question of

an arresting officer regarding the specific types of dealings the officer previously

had with Rooster; (2) his attorney rendered ineffective assistance by failing to call

Andre McMillan to testify, who would have testified that Small did not engage in

the drug transaction; and (3) his attorney rendered ineffective assistance by failing

to investigate and call Blance Boldos, the alleged buyer and Small’s co-defendant,

who would have testified that he did not buy the heroin from Small. The state

responds that Small cannot show he was prejudiced by the trial court’s ruling and

that his ineffective assistance of counsel claims are procedurally




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barred because the Florida courts dismissed them during post-conviction

proceedings on independent and adequate state procedural grounds.

       We review de novo a district court’s denial of a habeas corpus petition.

McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Where a state court

renders an adjudication of a claim on the merits, relief may only be granted where

the state court’s ruling was contrary to, or involved an unreasonable application of,

clearly established federal law, as determined by the United States Supreme Court,

or if it was based upon an unreasonable determination of the facts in light of the

evidence before the state courts. 28 U.S.C. § 2254(d).

       A state court decision is contrary to federal law if the state court arrives at a

conclusion opposite to that reached by the United States Supreme Court on a

question of law or if the state court decides a case differently than the United States

Supreme Court has on a set of materially indistinguishable facts. Childers v.

Floyd, 642 F.3d 953, 971 (11th Cir.) (en banc), petition for cert. filed, (U.S. July

6, 2011) (No. 11-42). An unreasonable application of federal law occurs where the

state court identifies the correct legal principle, but unreasonably applies it to the

facts. Id. A state court’s determination precludes relief so long as fairminded

jurists could disagree on the

correctness of the state court’s decision, and it is insufficient that the state court’s


                                             3
decision was incorrect unless it was also unreasonable. Id.

      Factual determinations made by a state court are presumed to be correct, and

the petitioner bears the burden of rebutting this presumption by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

                     I. Right to Confront Adverse Witnesses

      That a state court resolves a constitutional claim without explanation does

not lessen the deference its decision is due. Wright v. Sec’y for Dep’t of Corr., 278

F.3d 1245, 1254 (11th Cir. 2002). Thus, we have concluded that deference is due

to a state court’s summary adjudication where neither party questioned that a

federal constitutional issue was raised in and decided by the state court, and where

grave doubt as to such did not exist. See id. In such a situation, the habeas

petitioner must show that 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).

      The Sixth Amendment guarantees criminal defendants the right to be

confronted with adverse witnesses. U.S. Const. amend. VI. The main purpose of

this right is to secure the opportunity for cross-examination, but a defendant does

not have the right to cross-examination that is effective in whatever way, and to

whatever extent, he might wish. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106

S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). The right does not prevent reasonable


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limitations based upon concerns about, among other things, harassment, prejudice,

confusion of the issues, witness safety, or repetitive or marginally relevant

testimony. See id. A defendant states a violation of his right to confrontation by

showing that he was prohibited from engaging in otherwise appropriate

cross-examination designed to expose facts from which jurors could appropriately

draw inferences relating to the reliability of the witness. Van Arsdall, 475 U.S. at

680, 106 S.Ct. at 1436. Defendants must be permitted to engage in

cross-examination where a reasonable jury might receive a significantly different

impression of a witness’s credibility based on the questioning. See id.

      On habeas review, we give the state court doubly deferential review due to

the ordinary discretion trial courts have in evidentiary matters and the deference

mandated by § 2254. Childers, 642 F.3d at 975-77. We have held that, for the

purposes of defining “clearly established federal law” under § 2254, a state court

satisfies the “significantly different impression” test when it permits some

questioning about a witness’s biases. Id. at 975. As to how deeply state courts

must permit defendants to delve into the biases, we have noted trial courts’ wide

discretion to limit cross-examination when they have allowed the defendant to

expose some evidence of bias. Id.




                                           5
      Although the state courts did not produce a reasoned opinion, the Florida

appellate court’s decision is entitled to deference. Small has not demonstrated that

there is no reasonable basis upon which the Florida appellate court could have

denied his Sixth Amendment claim because the evidence that he sought to elicit on

cross-examination was already before the jury, and Small was able to fully argue

his misidentification defense in closing arguments. Accordingly, the Florida

appellate court could have reasonably concluded that any Sixth Amendment error

was harmless, and its decision was not contrary to, or an unreasonable application

of, federal law.

                           II. Failure to Call McMillan

      Whether a claim is subject to the doctrine of procedural default is a mixed

question of law and fact that we review de novo. Doorbal v. Dep’t of Corr., 572

F.3d 1222, 1227 (11th Cir. 2009). We will not review questions of federal law

presented in a habeas petition where the state court’s decision rests upon a

state-law ground that is independent of the federal question and adequate to

support the judgment. Id. We apply a three-part test in order to determine whether

a state court judgment rested upon an independent and adequate state law ground:

(1) the last state court rendering judgment must have clearly and expressly stated

that it relied upon state procedural rules without reaching the merits of the claim;


                                           6
(2) the state court’s decision must rest solidly on state law grounds, and may not be

intertwined with an interpretation of federal law; (3) the state

procedural rule must be adequate, i.e., it must not be applied in an arbitrary,

unprecedented, or manifestly unfair fashion. Id.

      The Sixth Amendment right to counsel guarantees the right to effective

counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64,

80 L.Ed.2d 674 (1984). In order to prevail on an ineffective assistance of counsel

claim, the petitioner must show that counsel’s performance was deficient and that

the attorney’s deficient performance prejudiced the petitioner. Strickland, 466 U.S.

at 687, 104 S.Ct. at 2064. In order to demonstrate prejudice, the petitioner must

show that there is a reasonable probability that, but for counsel’s deficient

performance, the result of the proceedings would have been different. Strickland,

466 U.S. at 694, 104 S.Ct. at 2068. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Id. A court does not have to

address the deficiency prong if the petitioner cannot show sufficient prejudice.

Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.

      Under Florida law, a post-conviction movant must, as part of the

requirement to show prejudice under Strickland, allege that a witness was available

to testify at trial if the movant wishes to raise an ineffective assistance of counsel


                                            7
claim based upon a failure to call a witness to testify. Nelson v. State, 875 So.2d

579, 583-84 (Fla. 2004).

      The Florida trial court, in the only reasoned decision addressing this claim,

did not make a clear and express statement that it relied upon state procedural law

when it dismissed Small’s claim for failing to allege that McMillan was available

to testify at his trial, and its determination was intertwined with an interpretation of

federal law. Accordingly, Small’s claim is not procedurally barred.

      The Florida appellate court’s denial of Small’s ineffective assistance of

counsel claim regarding McMillan was not contrary to, or an unreasonable

application of, Strickland. The trial court identified Strickland as the applicable

law, and did not confront a materially indistinguishable set of facts. Further, Small

did not show prejudice because the substance of McMillan’s prospective testimony

was in evidence, and Small was able to fully present his misidentification defense

in closing arguments. The Florida appellate court, therefore, reasonably concluded

that Small did not establish a claim under Strickland.

                    III. Failure to Investigate and Call Boldos

      Procedural default arises where the state court correctly applies a procedural

default principle of state law in concluding that the petitioner’s federal claims are

barred. Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999). Further, where


                                            8
there is grave doubt that the state court applied the correct rule of governing federal

law, it is tantamount to applying a rule that contradicts governing law. See Romine

v. Head, 253 F.3d 1349, 1365 (11th Cir. 2001). Thus, where such grave doubt

exists, § 2254 deference does not apply. Id.

      Under Florida law, a judge may dismiss a second or successive

post-conviction motion if it does not allege new or different grounds for relief and

the claim was previously determined on the merits. Fla.R.Crim.P. 3.850(f). If the

movant raised a new claim, a judge may dismiss a second or successive

post-conviction motion as successive if he determines that the movant’s failure to

raise that claim in a previous post-conviction motion constituted an abuse of

post-conviction procedures. Id.

      In order to meet Strickland’s deficiency prong, a petitioner must show that

his counsel’s representation fell below some objective standard of reasonableness

as measured under prevailing professional norms. Blankenship, 542 F.3d at

1272-73. More specifically, the petitioner must show that no competent counsel

would have taken the course of action that his attorney took. Id. at 1273. This

review is highly deferential, and courts must indulge the strong presumption that

counsel’s performance was reasonable and that all significant decisions were made

in the exercise of reasonable professional judgment. Id. We will review the


                                           9
sufficiency of an attorney’s investigation, but strategic choices made after thorough

investigation are virtually unchallengeable. Id. Whether to call a witness is the

epitome of a strategic decision, and is one that we will seldom, if ever, second

guess. Conklin v. Schofield, 366 F.3d 1191, 1204 (11th Cir. 2004). The petitioner

must also show that any deficiency in counsel’s performance created a reasonable

probability that, but for counsel’s deficient performance, the result of the

proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at

2068.

        Small raised this claim in two state post-conviction motions. There is grave

doubt that the Florida courts resolved this claim in Small’s first post-conviction

proceedings because, while the trial court specifically addressed the failure to call

McMillan, it omitted any reference to, or indication that it recognized, the failure to

call Boldos. Moreover, the Florida courts did not correctly apply state procedural

law by dismissing this claim as successive in Small’s second post-conviction

motion because they had not previously resolved the claim on its merits.

Accordingly, this claim is not procedurally barred, and the Florida appellate court’s

decision is not entitled to any deference.

        Nonetheless, Small failed to demonstrate that his attorney’s failure to

investigate and call Boldos as a witness constituted deficient performance or


                                             10
prejudiced him. Small did not make any showing that it would have been

unreasonable to believe that Boldos would not have waived his right against

self-incrimination, and, beyond his own conclusory statements, did not make any

showing that Boldos would have favorably testified. Accordingly, Small has failed

to establish a claim under Strickland.

      After careful review of the record and the parties’s briefs, we affirm the

district court’s denial of Small’s petition for habeas corpus.

      AFFIRMED.




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