                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-14976                ELEVENTH CIRCUIT
                                                             APRIL 2, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                    D. C. Docket No. 07-21801-CV-ASG

LUTHER A. COLLIE,



                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS,
ATTORNEY GENERAL OF THE STATE
OF FLORIDA,


                                                       Respondents-Appellees.


                       ________________________

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

                              (April 2, 2009)

Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:

      Luther Collie, a Florida prisoner, appeals the denial of his petition for a writ

of habeas corpus. 28 U.S.C. § 2254. Collie argued that his trial counsel was

ineffective for failing to object when the State removed by peremptory challenge

an African-American member of the venire after the trial court denied a challenge

for cause against that member of the venire. The district court denied the writ but

granted Collie a certificate of appealability to resolve whether trial counsel was

ineffective “for [his] failure to object to or request a race-neutral reason for the

prosecutor’s use of a peremptory challenge to strike the lone eligible prospective

African-American juror from the venire.” Because it was not an unreasonable

application of clearly established federal law for the Florida courts to conclude that

Collie failed to state a claim of ineffective assistance of counsel, we affirm.

                                  I. BACKGROUND

      Collie participated in the armed robbery of a truck owned by the United

Postal Service and the kidnapping of its driver. After the authorities arrested

Collie, the driver of the truck identified Collie as one of his assailants, and Collie

admitted his involvement in the crimes. Collie was charged by information for

four crimes: armed carjacking, display of a weapon during the commission of a

felony, armed kidnapping, and burglary of an occupied conveyance.



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      During voir dire, the prosecutor questioned a member of the venire, Jean

Baptiste, about his recent graduation from high school, lack of employment, and

future plans. Baptiste responded negatively when the prosecutor asked him if

Collie’s youth would “play a role” in Baptiste’s verdict. When Baptiste was asked

by the prosecutor what his verdict would be if the State proved Collie’s guilt

beyond a reasonable doubt, Baptiste responded equivocally, but when the trial

court asked Baptiste a similar question, he stated he would find Collie guilty.

      The trial court advised Collie to consult with his counsel about the venire.

After a break, the trial court asked Collie if he had “sufficient time to go over the

jurors with [his] attorney,” and Collie responded affirmatively. The trial court

seated six jurors, after which the judge asked Collie if he was “in agreement with

those six,” and he responded affirmatively. The prosecutor and defense counsel

then used backstrikes to seat two alternate jurors.

      After the trial court seated one alternate juror, the prosecutor challenged

Baptiste for cause. The trial court denied the challenge for cause but allowed the

prosecutor to use a peremptory challenge against Baptiste. The trial court seated

the next individual on the list as the second alternate juror. After defense counsel

stated that he would “accept that,” the trial court asked Collie to consider the six

petit jurors and two alternates and, before they were sworn, to state any objection



                                           3
that he had to those jurors. When asked by the trial court, Collie confirmed that he

was “in agreement” with the jurors.

       Collie was convicted of armed carjacking, armed kidnapping, and burglary

of an occupied conveyance and sentenced to twenty-five years of imprisonment.

The state appellate court affirmed Collie’s convictions and sentences summarily.

       Collie filed pro se in Florida court a motion for post-conviction relief. See

Fla. R. Crim. P. 3.850. Collie argued that his trial counsel was ineffective for

“fail[ing] to object to the state’s peremptory strike of a black juror without giving

non-racial reasons for doing so.” Collie alleged that the “prosecution did not want

[Baptiste] on the jury,” Collie “liked Mr. Baptiste,” and counsel should have

objected to the challenge and “force[d] the court to request non-racial reasons for

the strike[.]”

       The trial court denied Collie’s motion. The court ruled that Collie failed to

“allege[] that the challenge was, in fact, racially motivated.” The court cited Cook

v. State, 792 So. 2d 1197 (Fla. 2001), where the Supreme Court of Florida rejected

a collateral attack on trial counsel’s failure to object to the removal of two African-

American prospective jurors because the petitioner failed to allege a racial

motivation for the removal. The trial court found that Collie “agreed to the panel

that was chosen and sworn to hear the evidence” in his case and concluded that



                                           4
Collie could not “now complain simply because they did not return the verdict he

had hoped for.” Collie appealed, and the state appellate court affirmed summarily.

       Collie filed a federal petition for a writ of habeas corpus and repeated his

argument that trial counsel was ineffective. Collie alleged that he “indicated he

wanted . . . Baptiste on his jury”; Collie was “dismayed” when counsel failed to

object to the peremptory challenge by the state; and that omission by counsel

“resulted in [Collie’s] loss of his constitutional right to be tried by a jury of his

peers.”

       A magistrate judge recommended that the district court deny Collie’s

petition. The magistrate judge concluded that trial counsel was “not ineffective for

failing to object to the prosecutor’s action” because “the record . . . did not

demonstrate that Baptiste was stricken because he was African American” and

Collie had “come forward with no evidence in the state court or [the] collateral

proceeding that the prosecutor exercised his peremptory challenge against Baptiste

because he was an African American.” The magistrate judge found that the state

“had legitimate, race-neutral concerns regarding Baptiste,” and cited the concerns

of the prosecutor that Baptiste would be “sympathetic” to Collie “because of the

similarity in their ages, and the fact that Baptiste had stated he would have a

difficult time convicting” Collie. The magistrate judge also concluded that Collie



                                             5
was not prejudiced by the failure of trial counsel to preserve the Batson objection

for review on appeal because an objection by counsel to the peremptory challenge

would have lacked merit, and the decision of the state court to deny Collie’s post-

conviction motion was “factually reasonable and in accord with . . . federal

principles.”

      The district court adopted the findings and recommendation of the

magistrate judge. “Based on [its] review of the record, the Report and

Recommendation, [Collie’s] Objection, and the entire case file,” the district court

concluded that Collie failed to “establish[] the necessary elements of a claim for

ineffective assistance of counsel.”

                          II. STANDARDS OF REVIEW

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

McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). A petitioner is

entitled to a writ of habeas corpus if the state court 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” clearly

established federal law 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



                                           6
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. We presume that the findings of fact by the state court are

correct unless rebutted by clear and convincing evidence. 28 U.S.C. 2254(e)(1).

                                     III. DISCUSSION

      Collie contends that his trial counsel was ineffective for failing to object and

demand an explanation from the prosecutor about the reason he exercised a

peremptory challenge against Baptiste. Collie argues that had counsel objected

under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), “[i]n all

probability” Baptiste would have served on his jury. Collie also argues for the first

time that, had counsel objected, the issue would have been preserved for the state

court to review on appeal. Collie’s arguments fail.

      To establish ineffective assistance of counsel, a defendant must prove that

counsel provided deficient representation and the performance prejudiced the

defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984). Counsel’s performance is deficient only if it falls below the wide range of

competence demanded of attorneys in criminal cases. Id. at 688, 104 S. Ct. at



                                            7
2065; Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). “When a convicted

defendant complains of the ineffectiveness of counsel’s assistance, the defendant

must show that counsel’s representation fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688, 104 S. Ct. at 2064.

      We assess the reasonableness of counsel’s decision not to object to a

peremptory challenge for racial bias by first considering the standard established

by the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).

Batson requires that the defendant establish a prima facie case that the prosecutor

exercised its peremptory challenge on the basis of race before the prosecutor is

required to explain the reason for the challenge. Id. at 96–97, 106 S. Ct. at 1723;

Bui v. Haley, 321 F.3d 1304, 1313–14 (11th Cir. 2003). To establish a prima facie

case, the defendant must prove that the veniremember “is a member of a

cognizable racial group and that the prosecutor has exercised peremptory

challenges to remove from the venire members of the defendant’s race” and “these

facts and any other relevant circumstances raise an inference that the prosecutor

used that practice to exclude the venire[member] from the [panel] on account of

[his] race.” Batson, 476 U.S. at 96, 106 S. Ct. at 1723 (citation omitted); Bui, 321

F.3d at 1313.

      It was reasonable for the state court to rule that Collie failed to state a claim



                                           8
for relief under Strickland and Batson. As the trial court explained, the removal of

a member of the venire based on his race would violate the Constitution, Miller-El

v. Dretke, 545 U.S. 231, 238, 125 S. Ct. 2317, 2324 (2005); Batson, 476 U.S. at

89, 106 S. Ct. at 1719, but the removal of a single African-American from the

venire, without more, does not allow an inference that the challenge was racially

motivated. The Court in Batson explained that a defendant must identify facts and

circumstances that support an inference of discrimination, such as the pattern of

challenges exercised by the prosecution, disparate questioning by the prosecutor

during voir dire, and the selection by the prosecutor of non-African Americans

who share characteristics used to remove African-Americans from the venire.

Miller-El, 545 U.S. at 241, 125 S. Ct. at 2325; Batson, 476 U.S. at 97, 106 S. Ct. at

1722, 1723.

      The district court correctly denied Collie habeas relief. The state court

reasonably concluded that Collie failed to allege deficient performance by his trial

counsel. Collie alleged no facts to support an inference of discriminatory animus

by the prosecutor and, as a consequence, provided nothing to support his argument

that trial counsel overlooked a potentially meritorious objection. It was reasonable

for the state court to rule that Collie failed to allege that the performance of trial

counsel was deficient. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. That



                                            9
conclusion was not contrary to or an unreasonable application of clearly

established federal law.

                                  IV. CONCLUSION

      The denial of Collie’s petition is AFFIRMED.




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