           Case: 14-14675   Date Filed: 01/14/2016   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14675
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 3:11-cv-00688-HLA-JBT


RUSS GEORGE THOMAS,
                                                         Petitioner-Appellant,

                               versus

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,


                                                     Respondentss-Appellees.

                      ________________________

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

                            (January 14, 2016)

Before HULL, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:
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      Russ George Thomas, convicted in Florida of burglary of a dwelling and

possession of burglary tools, appeals the district court’s denial of his petition for a

writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254(d). The district court

granted a certificate of appealability on three issues. The first is whether Mr.

Thomas’ appellate counsel rendered ineffective assistance in failing to argue that

the trial court erred in admitting the jail recordings between he and his wife despite

lack of authentication. The second is whether Mr. Thomas’ trial counsel rendered

ineffective assistance in failing to object to the prosecutor’s questions and closing

argument concerning his post-arrest silence. The third is whether the state trial

court violated Mr. Thomas’ Sixth Amendment rights when it admitted into

evidence testimonial hearsay. For the reasons which follow, we affirm the district

court’s denial of habeas relief.

                                           I

      We assume the parties are familiar with the background of this case. Thus,

we summarize the facts and proceedings only insofar as necessary to provide

context for our decision.

                                           A

      In a § 2254 proceeding, we review the district court’s denial of a habeas

petition de novo, and factual findings for clear error. See Ward v. Hall, 592 F.3d

1144, 1155 (11th Cir. 2010). A claim of ineffective assistance of counsel is a


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mixed question of law and fact that we review de novo. See id. We liberally

construe pro se filings, including pro se applications for relief pursuant to § 2254.

See Dupree v. Warden, 715 F.3d 1295 (11th Cir. 2013). In the context of an

unsuccessful § 2254 petition, our review is limited to the issues raised in the COA.

See Hodges v. Att’y Gen., State of Fla., 506 F.3d 1337, 1340-42 (11th Cir. 2007).

      To establish ineffective assistance of counsel, a petitioner must show that

counsel’s performance was deficient and that the deficient performance prejudiced

his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove

deficient performance, the petitioner must show that counsel’s performance fell

below an objective standard of reasonableness, and that “no competent counsel

would have taken the action that his counsel did take.” Chandler v. United States,

218 F.3d 1305, 1313 (11th Cir. 2000) (en banc). When Strickland’s deferential

standard for measuring attorney performance is viewed through the lens of

AEDPA’s own deferential standard, the result is a doubly deferential form of

review that asks only “whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.” Harrington v. Richter, 562 U.S. 86, 89

(2011). We have stated that it will be a “rare case” when an ineffective assistance

claim denied on the merits in state court is found to qualify for relief in a federal

habeas proceeding. See Gissander v. Seabolt, 735 F.3d 1311, 1323 (11th Cir.

2013).


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                                         B

      Mr. Thomas first argues that he received ineffective assistance when his

appellate counsel failed to argue that the admission of jail recordings of

conversations between he and his wife lacked authentication. Mr. Thomas also

contends that he received ineffective assistance of counsel when his trial counsel

attorney failed to object to (1) questions asked by the prosecutor concerning other

witnesses’ testimony and Mr. Thomas’ failure to tell police what he later testified

to at trial, and (2) statements during closing arguments regarding Mr. Thomas’

post-Miranda silence.

      Here, there was no ineffective assistance concerning the jail recordings.

Proper authentication of an audio recording in Florida requires only “evidence

sufficient to support a finding that the matter in question is what its proponent

claims.” See Fla. Stat. § 90.901. Detective Joe Vargo listened to all four phone

calls in question and recognized the voices of Mr. Thomas and his wife, Sharon

Kelly, as he had spoken to each of them before. Because the recordings had not

been altered or tampered with, the requirement of authentication was satisfied.

      Mr. Thomas’ second ineffective assistance of counsel claim is that trial

counsel failed to object to questions and closing argument by the prosecutor


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concerning his post-arrest silence. On cross-examination, the prosecutor asked Mr.

Thomas whether he had told the police what he had testified to on direct

examination (e.g., that the man police were looking for had taken off through the

woods). Mr. Thomas responded that he had not made that statement to the police.

During closing argument, the prosecutor told the jury that Mr. Thomas had given

(in his trial testimony) a couple of versions of how he had ended up in the area of

the burglary, but had not discussed those matters with the police.

      We agree with the district court, see D.E. 33 at 63, that the prosecutor’s

questions and comments during closing argument were likely improper under

Doyle v. Ohio, 426 U.S. 610, 619 (1976) (forbidding use of post-Miranda silence

to impeach a defendant who testifies at trial). But we also agree with the district

court that Mr. Thomas suffered no prejudice under Strickland from his counsel’s

deficient performance. First, in his direct examination, Mr. Thomas had already

explained why he had not implicated the other person after his arrest. Second, the

evidence against Mr. Thomas — both direct and circumstantial — was strong and

conclusive. See D.E. 33 at 9-12.

      Mr. Thomas’ final claim is that the admission of the recorded calls between

he and his wife violated his Sixth Amendment rights. We disagree, and conclude

that the district court properly denied habeas relief on this claim. The Supreme

Court has held that the Confrontation Clause prohibits the admission of


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“testimonial hearsay” unless the declarant is unavailable and the defendant had a

previous opportunity to cross-examine the declarant. See Crawford v. Washington,

541 U.S. 36 (2004). Testimonial statements are ones that a declarant “would

reasonably expect to be used prosecutorially.” See id. at 51-52.         Here, the

conversations in question were not testimonial in nature given that they were

between husband and wife, and not ones that someone would reasonably expect to

be used at trial. See Malone v. Kramer, 2010 WL 1404286, *16-*17 (E.D. Ca.

2010). And even if we found that the admission of the recorded calls between Mr.

Thomas and his wife violated the Confrontation Clause, that error would be

harmless because it did not have a substantial and injurious effect on the jury’s

verdict.   As noted, the state presented a substantial amount of direct and

circumstantial evidence of Mr. Thomas’ guilt. See Brecht v. Abrahamson, 507

U.S. 619, 638 (1993).

                                       III

      We affirm the district court’s denial of Mr. Thomas’ § 2254 petition.

      AFFIRMED.




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