                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-12155                ELEVENTH CIRCUIT
                                                             MARCH 8, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                 D. C. Docket No. 05-01074-CV-J-32-HTS

WAYNE B. GAEDTKE,



                                                          Petitioner-Appellant,

                                  versus

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


                                                       Respondents-Appellees.


                       ________________________

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

                             (March 8, 2010)

Before BIRCH, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      Wayne B. Gaedtke, through counsel, seeks review of the district court’s

denial of his habeas corpus petition, 28 U.S.C. § 2254, in which he raised, inter

alia, an ineffective assistance of counsel claim arising out of his attorney’s failure

to perform an adequate investigation before advising Gaedtke to plead no contest

to child molestation. We AFFIRM.

                                 I. BACKGROUND

      Gaedkte was charged in 2004 with lewd and lascivious molestation of a

person under the age of twelve (his granddaughter), in violation of Fla. Stat. Ann.

§ 800.04. Exh. Folder 9, Exh. E. The charge carried with it a maximum prison

sentence of thirty years. Id., Exh. A at 4. After spending thirty-four days in county

jail without seeing a lawyer, Gaedtke was brought before a judge during an en

masse arraignment. R1-1 at 7; Exh. Folder 16, Exh. G.

      At the arraignment, the presiding judge informed the defendants that any

plea offer they received that day would be the best offer they would ever receive,

and that the offer would only be good for the day. Exh. Folder 16, Exh. G at 4-5.

The judge also advised Gaedtke that he had to the right to plead not guilty and to a

trial by jury and that if he pleaded no contest, “the only thing that will be left to do

is to sentence [him].” Id. at 3-4. The state offered a plea of fifteen-years of

imprisonment. Exh. Folder 9, Exh. A at 3-4; Exh. Folder 16, Exh. F. The judge



                                            2
informed Gaedtke that the charge against him carried a maximum penalty of thirty

years in prison and that if he had any prior qualifying convictions he could be

declared a sexual predator and may be subject to commitment under Florida’s

Jimmy Ryce Civil Commitment Act. Exh. Folder 9, Exh. A at 4. Gaedtke told the

court that he understood he was forfeiting the right to trial by entering into the plea

agreement. Id. at 6. He denied any threats or coercion regarding his plea,

confirmed that he had discussed his case with appointed counsel, and stated that he

was satisfied with his representation. Id. at 6-7. Following the state’s proffer,

Gaedtke pleaded no contest and was sentenced to a term of fifteen years of

imprisonment. Id. at 7; Exh. Folder 9, Exh. E at 4.

      In April 2005, Gaedtke filed a motion for post-conviction relief in state

court, pursuant to Florida Rule of Criminal Procedure 3.850. Exh. Folder 9, Exh.

B. Gaedtke argued in his motion that his plea was not knowing and voluntary and

that his trial counsel rendered ineffective assistance by failing to perform an

investigation prior to advising him to plead no contest. Id. at 7, 9-11.

      The state trial court rejected Gaedtke’s arguments regarding the

knowingness and voluntariness of his plea, finding that they were “clearly refuted”

by the transcript of his plea hearing. Exh. Folder 9, Exh. C at 3. As to his

ineffective-assistance-of-counsel claim, the trial court found that while Gaedtke



                                           3
      assert[ed] that his attorney performed no research on his case,
      conducted no investigation, and urged him to plead guilty[,]
      [he] . . . does not indicate how these supposed deficiencies affected
      the outcome of his case, and does not allege that he was prejudiced in
      any way by his attorney’s actions. Since the Defendant has failed the
      prejudice prong of Strickland [v. Washington, 446 U.S. 668, 104 S.
      Ct. 2052 (1984)], there is no need to determine whether his attorney’s
      conduct was actually deficient.

Id. The state appellate court denied Gaedtke’s appeal without opinion as well as

his subsequent motions for rehearing and rehearing en banc. See Gaedtke v. State,

908 So. 2d 1080 (Fla Dist. Ct. App. 2005); Exh. Folder 9, Exh. D.

      On 17 October 2005, Gaedtke filed a 28 U.S.C. § 2254 petition for a writ of

habeas corpus, in which he raised the same arguments that he raised in the state

post-conviction proceedings. See R1-1 at 4, 6-9. In support of his petition,

Gaedtke filed a memorandum stating that he would have pled not guilty at his

arraignment had his counsel investigated his case and informed him that a plea of

“no contest” was tantamount to a guilty plea and would result in no trial and

immediate sentencing. R1-8 at 9-12. The state argued in response that Gaedtke’s

counsel was not ineffective because Gaedtke was able to secure a plea agreement

that halved the term of imprisonment Gaedtke faced under the charges. R1-9 at 6-

10.

      The district court found that further development of the record was

necessary and appointed a federal public defender to represent Gaedtke. R1-17,

                                          4
19. The district court also sua sponte ordered further briefing on the issue of

prejudice resulting from the alleged ineffectiveness of counsel. R1-31.

         At the evidentiary hearing, Gaedtke testified that his appointed counsel had

not read the case file before meeting with him and met with him for only ten to

fifteen minutes. During that meeting, counsel’s only advice to Gaedtke was to take

the plea offered by the state. R3 at 17-27. According to Gaedtke, counsel did not

explain the consequences of his plea (i.e., that there would be no trial), and

Gaedtke would not have accepted the plea had he been informed of those

consequences. Id. at 25-29. Gaedtke admitted that the only three witnesses to the

alleged crime had already given statements to the police at the time of his

arraignment and explained that he did not seek to withdraw his plea upon learning

the he would be sentenced immediately because he was “in shock.” Id. at 36-40,

43-44.

         James Jacobs, Gaedtke’s appointed counsel, testified that he reviewed the

discovery exhibit and case file provided by the state at the arraignment and met

with Gaedtke for about fifteen to thirty minutes to discuss his case and the plea

deal. Id. at 163-66. Viewing his contemporaneous notes, he stated that they

discussed the Jimmy Ryce Act, the thirty-year maximum sentence, and the fifteen-

year offer. Id. at 165-66. He testified that the case file contained a written



                                            5
confession by Gaedtke and that Gaedtke never denied the charges against him and

never told him that his confession had been coerced. Id. at 166-67; 171-71. Jacobs

further testified that the discovery exhibit contained Gaedtke’s criminal history,

which showed that he had six prior felony convictions for sexually molesting his

two stepdaughters. Id. at 168, 193-95. Finally, Jacobs stated that said he would

not have allowed Gaedtke to accept the plea deal if there had been any indication

that Gaedtke was hesitant about the agreement or had been coerced by law

enforcement. Id. at 206-08.

      Post-hearing briefs were permitted by the district court and were filed by

both parties. See generally R1-49, 52, 53. The state argued that Gaedtke’s

ineffective-assistance-of-counsel claim was procedurally barred because, insofar as

he did not allege prejudice, he failed to sufficiently plead an ineffective-assistance-

of-counsel claim in the state proceedings. R1-52 at 11-13. The state argued

alternatively that Gaedtke’s claim failed on the merits, as he demonstrated neither

deficient performance nor prejudice. Id. at 16-22.

      The district court issued a 51-page order denying Gaedtke’s petition on 25

March 2009. R1-56. The court first found that Gaedtke’s ineffective-assistance-

of-counsel claim was not procedurally barred because the state court’s adjudication

of that claim was not clearly and expressly based on independent and adequate



                                           6
state procedural grounds. Id. at 8-9. The district court further ruled that Gaedtke’s

ineffective-assistance-of-counsel claim was sufficiently pled in the state court for

procedural default purposes because Gaedtke “‘presented his claim[] to the state

court such that a reasonable reader would understand [the] claim’s particular legal

basis and specific factual foundation.’” Id. at 9 (citing Williams v. Allen, 542 F.3d

1326, 1345 (11th Cir. 2008), cert. denied, 129 S. Ct. 2383 (2009)).

      The district court then found that, given the seriousness of the charges and

penalties Gaedtke faced, it was objectively unreasonable for counsel to advise him

to plead no contest at his arraignment after only a cursory review of the file and a

short personal interview. Id. at 35-43. The district court reasoned that counsel had

an affirmative duty, regardless of Gaedtke’s admissions of guilt, to further

investigate the charges and evidence against Gaedtke before considering a plea

offer. Id. at 39-40.

      Though troubled by counsel’s deficient performance and what it described

as “structural deficiencies” in the state proceedings, the district court nevertheless

concluded that Gaedtke was not prejudiced thereby. Id. at 43-50. The court first

found that, notwithstanding counsel’s errors and any defects in the procedures

employed by the state courts, Gaedtke’s case did not represent the type of

“fundamental breakdown of the adversarial process” giving rise to a presumption



                                           7
of prejudice. Id. at 44-45. This was especially so, the court observed, in light of

“the additional overlay of AEDPA deference due to the state court’s decision that

there was no prejudice.” Id. The district court noted that such deference must be

given to that decision, even though “it [was] not entirely clear whether the state

habeas court found that Gaedtke had failed to adequately allege prejudice or

whether it found that prejudice had not been shown.” Id. at 45 n.16.

      The court further found that, given the strength of the state’s case, which

included Gaedtke’s signed confession; the testimony of the child victim, or, at the

very least, the victim’s statements to her mother, father, and grandmother;

Gaedtke’s prior felony convictions for molesting his two stepdaughters; and the

sworn statement of Gaedtke’s wife establishing Gaedtke’s access to the victim and

opportunity to commit the crime – all of which would have been admissible at trial

– Gaedtke could not affirmatively establish prejudice under Strickland. Id. at 48-

49. The court dismissed Gaedtke’s assertions that there were other witnesses who

could testify that they had access to the house on the day of the crime, that his

wife’s statement to police had been coerced, and that he had not been read his

Miranda1 rights. The district court first found that the testimony of the proposed

witnesses would most likely be irrelevant given that there were only three people



      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

                                                8
in the house at the time of the offense – Gaedtke, his wife, and the victim – and

each had provided statements to the police that day. Id. at 46-47. The court further

found that Gaedtke’s contention that his wife’s sworn statement was coerced was

contradicted by evidence that his wife had made a prior consistent statement to the

responding deputy on the day of the incident. Id. at 47. Finally, the court found

that because the discovery file contained a written and signed Miranda waiver,

there was no merit to Gaedtke’s claim that he was not advised of his Miranda

rights and it was thus “highly unlikely that the confession would have been

suppressed.” Id. The district court therefore concluded that the record contained

“nothing to suggest the likelihood that anything that counsel could have or would

have done . . . would have led counsel to change his recommendation as to the

plea, because there [was] in turn no likelihood that any actions by counsel likely

would have changed the outcome of trial.” Id. at 49 (quotation marks and citation

omitted).

      The district court denied Gaedtke’s petition in its entirety, and a final

judgment to that effect was entered on 26 March 2009. R1-57. On 28 April 2009,

the district court granted Gaedtke’s motion for a certificate of appealability as to its

ruling on his ineffectiveness-of-counsel claim only, stating that “[r]easonable

jurists would find [its] assessment of the constitutional claim debatable or wrong.”



                                            9
R1-60.

                                  II. DISCUSSION

      On appeal, Gaedtke argues that the district court erred in refusing to apply a

presumption of prejudice under United States v. Cronic 466 U.S. 648, 104 S. Ct.

2039 (1984) because his appointed counsel did not subject the state’s case to any

“meaningful adversarial testing” before recommending that he enter a plea at his

arraignment. Gaedtke contends alternatively that, even without a presumption of

prejudice, the district court erred in denying his ineffective-assistance-of-counsel

claim because he demonstrated a reasonable probability, as required by Strickland,

that, absent counsel’s errors, he would not have pled no contest and would have

insisted on going to trial. We disagree.

      Because Gaedtke filed his habeas petition after 24 April 1996, this case is

governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28

U.S.C. § 2254, “which establishes a highly deferential standard for reviewing state

court judgments.” Carroll v. Sec’y, Dept. of Corr., 574 F.3d 1354, 1364 (11th Cir.

2009) (quotation marks and citation omitted). Under AEDPA, federal courts may

not grant habeas relief on any claim that was previously “adjudicated on the

merits” by the state court, unless the adjudication

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as

                                           10
       determined by the Supreme Court of the United States; or

       (2) resulted in a decision 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)(1), (2) (2009) (emphasis added).2

       “A state court decision is contrary to clearly established federal law if it

applies a rule that contradicts the governing law set forth in Supreme Court cases

or confronts facts that are materially indistinguishable from a relevant Supreme

Court precedent and arrives at a result opposite to the Court’s.” Windom v. Sec’y,

Dept. of Corr., 578 F.3d 1227, 1247 (11th Cir. 2009) (quotation marks, alteration,

and citation omitted) (per curiam). A state-court decision involves an unreasonable

application of federal law where the state court unreasonably applies the correct

governing legal principle to the facts, “unreasonably extends a legal

principle . . . to a new context where it should not apply[,] or unreasonably refuses

       2
           Gaedtke argues on appeal that the state court denied his ineffective-assistance-of-
counsel claim as facially insufficient and, therefore, it was not an adjudication on the merits
entitled to deference under § 2254(d). Although § 2254(d)(1)’s requirement of deference does
not apply where the state court fails to resolve a federal constitutional claim on the merits, see
Davis v. Sec’y for Dep’t of Corr., 341 F.3d 1310, 1313 (11th Cir. 2003) (per curiam), we think it
is fairly clear that the state court, in concluding that Gaedtke “failed the prejudice prong of
Strickland,” Exh. Folder 9, Exh. C at 3, denied the claim “on the merits,” so as to trigger
2254(d)(1)’s deference requirement, see Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.
2008) (per curiam) (stating that “a state court’s summary rejection of a claim qualifies as an
adjudication on the merits under § 2254(d) so as to warrant deference”); Wright v. Sec’y for
Dept. of Corr., 278 F.3d 1245, 1254-55 (11th Cir. 2002) (holding that under the plain language
of § 2254(d)(1), “all that is required is a rejection of the claim on the merits, not an
explanation”). Accordingly, we reject Gaedtke’s argument that deference is not owed to the
state court’s decision in this case.

                                                11
to extend that principle to a new context where it should apply.” Williams v.

Taylor, 529 U.S. 362, 407, 120 S. Ct. 1495, 1520 (2000).

      A federal court may also grant habeas relief if the state court’s decision “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)(2). The state

court’s factual determinations are entitled to a presumption of correctness that may

be rebutted only by clear and convincing evidence that the state court’s factual

determinations were erroneous. Id. § 2254(e)(1); see Parker v. Head, 244 F.3d

831, 835-36 (11th Cir. 2001). To prevail on a claim of ineffective-assistance-of-

counsel, a petitioner must demonstrate that: (1) counsel’s performance was

deficient, and (2) the deficient performance prejudiced the outcome of the

proceedings. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. “Because both

parts of the test must be satisfied in order to show a violation of the Sixth

Amendment, the court need not address the performance prong if the defendant

cannot meet the prejudice prong, or vice versa.” Holladay v. Haley, 209 F.3d

1243, 1248 (11th Cir. 2000) (citation omitted). Because we conclude, for the

reasons set forth below, that Gaedtke has failed to establish the required prejudice

prong of his ineffective-assistance claim, we do not address the performance

prong. See Sullivan v. DeLoach, 459 F.3d 1097, 1099 (11th Cir. 2006).



                                           12
      To show prejudice under Strickland, the petitioner must demonstrate a

reasonable probability, which is “a probability sufficient to undermine confidence

in the outcome,” that, but for counsel’s deficient performance, the result of the

proceeding would have been different. 466 U.S. at 694, 104 S. Ct. at 2068. “It is

not enough for the defendant to show that the errors had some conceivable effect

on the outcome of the proceeding.” Id. at 693, 104 S. Ct. at 2067.

      In the context of a guilty plea, “the defendant must show that there is a

reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52,

59, 106 S. Ct. 366, 370 (1985). Where the alleged error is the failure to adequately

investigate, the prejudice inquiry will “depend on the likelihood that discovery of

the evidence would have led counsel to change his recommendation as to the plea.”

Id. “This assessment, in turn, will depend in large part on a prediction whether the

evidence likely would have changed the outcome of a trial.” Id.

      Although Strickland generally requires defendants alleging deficient

performance to affirmatively prove prejudice, see 466 U.S. at 693, 104 S. Ct. at

2067, the Supreme Court held in Cronic that a showing of prejudice is not required

“if there are ‘circumstances that are so likely to prejudice the accused that the cost

of litigating their effect in a particular case is unjustified.’” Chadwick v. Green,



                                           13
740 F.2d 897, 900 (11th Cir. 1984) (quoting Cronic, 466 U.S. at 658, 104 S. Ct. at

2046). Circumstances giving rise to a presumption of prejudice include those in

which the accused is denied counsel at a critical stage of his trial, the accused’s

counsel “entirely fails to subject the prosecution’s case to meaningful adversarial

testing,” or the accused is “denied the right of effective cross-examination.”

Cronic, 466 U.S. at 659, 104 S. Ct. at 2047 (quotation marks and citation omitted).

“It is within this narrow range of cases exemplified by such circumstances that the

petitioner’s ineffective assistance claim must fall to gain relief without a showing

of prejudice.” Chadwick, 740 F.2d at 900. To the extent it applies, the burden of

proof under Cronic is “a very heavy one.” Smith v. Wainwright, 777 F.2d 609, 620

(11th Cir. 1985) (stating that “[w]e have yet to find that a petitioner received

ineffective assistance of counsel under the Cronic standard based solely on his

counsel’s performance, without regard to some interference attributable to the

state”).

       In this case, Gaedtke alleges that his appointed counsel failed to conduct an

adequate investigation prior to advising him to plead no contest to the charge

against him. We have held, however, that counsel’s failure “to investigate and

pursue all avenues of defense is best characterized as a failure by counsel in the

performance of his investigative duties, which is to be analyzed under [Strickland],



                                           14
rather than as a fundamental breakdown of the adversarial process such that

prejudice is presumed under Cronic.” Chadwick, 740 F.2d at 901. Because

Gaedtke’s ineffective-assistance-of-counsel claim pertains solely to appointed

counsel’s failure to investigate, we cannot say that it falls within that “very narrow

spectrum of cases where the circumstances leading to counsel’s ineffectiveness are

so egregious that the defendant was in effect denied any meaningful assistance at

all.” Id.

       Because Gaedtke is not entitled to a presumption of prejudice, he must

affirmatively prove prejudice under Strickland. This he cannot do. The record

reflects that, at the time of Gaedtke’s arraignment, the state’s case consisted of the

following: (1) a signed confession from Gaedtke, admitting that he had fondled his

granddaughter; (2) a written statement from his wife establishing that Gaedtke had

the opportunity to commit the crime; (3) admissible prior statements from

Gaedtke’s stepdaughters claiming similar abuse when they were young girls;

(4) Gaedtke’s convictions in Virginia for molestation of his stepdaughters; and

(5) either the live testimony of the child victim alleging molestation by Gaedtke or

prior consistent statements she made to relatives about the abuse.

       Although Gaedtke claimed that there were additional witnesses who would

testify that they had access to the house on the day of the crime, that his wife’s



                                           15
statement was coerced, and that he did not receive his Miranda warnings, the

district court found that the proposed witness testimony would have limited, if any,

probative value, that Gaedtke’s wife had given a prior consistent statement to the

officer on the scene the day before, and that the case file contained a signed

Miranda waiver. Because the evidence Gaedtke claims his counsel should have

discovered through investigation would not likely have changed the outcome of the

trial, we fail to see how it would have led counsel to change his plea

recommendation. See Hill, 474 U.S. at 59, 106 S. Ct. at 370. Accordingly, we

agree with the district court that the state court did not unreasonably apply

Strickland when it found that Gaedtke failed to show that he was prejudiced by

counsel’s failure to conduct a pre-plea investigation.

                                III. CONCLUSION

      Gaedtke appeals from the district court’s denial of his § 2254 petition for a

writ of habeas corpus, in which he alleged that he received ineffective assistance

from his trial counsel during the plea process. For the reasons set forth herein, the

judgment of the district court denying petition for a writ of habeas corpus is

AFFIRMED.




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