                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            Aug. 19, 2009
                             No. 09-10988
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

               D. C. Docket No. 06-00005-CV-2-JHH-TMP

WILLIE LEON SCOTT,
                                                         Petitioner-Appellant,

                                  versus

WARDEN GRANT CULLIVER,
ATTORNEY GENERAL OFFICE STATE OF ALABAMA,


                                                      Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                             (August 19, 2009)

Before BIRCH, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
      Willie Leon Scott, an Alabama state prisoner proceeding pro se, appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas petition. In his petition,

Scott, who is serving a life sentence for capital murder, alleged that his trial

counsel was ineffective for (1) failing to object to testimony given by trial court

bailiff Mark Tinsley and (2) not requesting a mistrial on account of Tinsley’s

contact with the jury in his capacity as the court bailiff following his testimony.

      Scott’s appeal centers on the following facts1:

      During Scott’s jury trial, Tinsley, the court bailiff, took the stand and

testified that he had observed Marcus Scott, the petitioner’s brother, give money to

an individual accompanying a defense witness. As stated by Scott in an

amendment to his habeas petition, Tinsley’s testimony was offered by the

prosecution to impeach that witness by “insinuat[ing] that the money transaction

was a payoff for [that witness]’s trial testimony.” Scott’s trial attorney did not

object to Tinsley’s testimony.

      After testifying, Tinsley briefly continued to work as a bailiff in the

courtroom. According to Scott’s brief to the Alabama Court of Criminal Appeals,

Tinsley was “allowed to escort certain members of the jury outside to give them an

opportunity to smoke. Once this came to the attention of the attorney for [Scott],


      1
          The facts are set out more fully in the Magistrate Judge’s Report and Recommendation.

                                                2
the trial court directed that a different bailiff . . . replace Mark Tinsley to oversee

the jury members’ activities.” Ultimately, the jury convicted Scott.

      Scott appealed and raised, inter alia, the issues of Tinsley’s testimony and

Tinsley’s continued work as a bailiff. The Alabama appellate court affirmed

Scott’s conviction, finding that Scott’s claims were not preserved because he

failed to object at trial. The Alabama Supreme Court denied review.

      Scott later filed a post-conviction petition in state court pursuant to

Alabama Rule of Criminal Procedure 32, asserting that, inter alia, Scott’s trial

counsel provided ineffective assistance by failing to (1) object to the introduction

of Tinsley’s testimony and (2) move for a mistrial in light of Tinsley’s contact

with jurors following his testimony. The petition was denied. On appeal, the

Alabama Court of Criminal Appeals discussed the United States Supreme Court’s

standard for ineffective assistance of counsel claims under Strickland v.

Washington, 466 U.S. 668 (1984). The court noted the need for a petitioner to

establish prejudice by showing that the outcome of the case would have been

different but for the trial attorney’s errors. In reference to Scott’s claim regarding

the introduction of Tinsley’s testimony, the court stated:

      Tinsley’s testimony concerned Scott’s family interacting with
      witnesses, specifically that he observed Marcus Scott giving money to
      an individual in the courtroom who was accompanying a defense

                                            3
       witness. This testimony was clearly admissible for impeachment to
       show bias. An objection by counsel would properly have been
       overruled; thus, Scott can show no prejudice by counsel’s failure to
       object.

The Alabama court affirmed the trial court’s denial of Scott’s Rule 32 petition.

The court did not address the alleged error in allowing Tinsley to continue as

bailiff after testifying.

       Scott then filed his present habeas petition in federal court pursuant to 28

U.S.C. § 2254, asserting a multitude of errors in his jury trial. After a thorough

review of Scott’s claims, the Magistrate Judge issued a Report and

Recommendation recommending that Scott’s petition be denied. The district court

adopted the Magistrate Judge’s report and denied Scott’s petition.

       Scott filed a motion to appeal and was granted a certificate of appealability

(the “COA”) on the following issue:

       Was the determination by the Alabama Court of Criminal Appeals
       “contrary to” or an “unreasonable application of” Supreme Court
       precedent, and not entitled to deference under 28 U.S.C. § 2254(d),
       when it concluded that petitioner suffered no prejudice and did not
       receive ineffective assistance of counsel in violation of the Sixth
       Amendment when counsel failed to object to court bailiff Mark
       Tinsley continuing to assist the jury for a short period of time after he
       testified in petitioner’s trial to seeing petitioner’s brother pay money
       to a man who was with a defense witness?




                                           4
       In reviewing the district court’s denial of a habeas petition, we review

questions of law de novo and findings of fact for clear error. Nyland v. Moore,

216 F.3d 1264, 1266 (11th Cir. 2000).

       A habeas petition brought by an individual in custody pursuant to a state

court judgment

       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,2 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). A state court’s decision is “contrary to” federal law if (1) the

court arrives at a conclusion opposite to that reached by the United States Supreme

Court on a question of law, or (2) the court confronts facts that are “materially

indistinguishable” from relevant Supreme Court precedent, but arrives at an

opposite result from that arrived at by the Supreme Court. Putnam v. Head, 268

F.3d 1223, 1241 (11th Cir. 2001). An “unreasonable application” of federal law

occurs when the state court either (1) correctly identifies the legal rule from


       2
         The phrase “clearly 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 (2003).

                                                5
Supreme Court precedent but unreasonably applies the rule to the facts of the case,

or (2) “unreasonably extends, or unreasonably declines to extend, a legal principle

from Supreme Court case law to a new context.” Id.

      Under clearly established federal law, a habeas petition based on an asserted

claim of ineffective assistance of counsel will prevail only if the petitioner shows

that (1) “counsel’s performance was deficient” because it “fell below an objective

standard of reasonableness,” and (2) “the deficient performance prejudiced the

defense.” Strickland, 466 U.S. at 687-88. A reviewing court need not address the

performance prong of the test if the defendant cannot meet the prejudice prong, or

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

determining whether the trial counsel was deficient, “counsel is strongly presumed

to have rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. With

regard to the prejudice prong, the defendant must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 669.




                                           6
       Scott argues that his trial counsel’s performance was deficient because he

failed to object to the bailiff’s testimony that he observed Scott’s brother handing

money to someone accompanying a defense witness.3

       The Alabama Court of Criminal Appeals noted that Tinsley’s testimony

“concerned Scott’s family interacting with witnesses” and “was clearly admissible

for impeachment to show bias.” Because the testimony was admissible, the court

noted that any objection by Scott’s attorney would have been properly overruled

and found that Scott could show no prejudice by counsel’s failure to object to

Tinsley’s testimony. The court discussed the Strickland standard and concluded

that the lack of prejudice to Scott established that counsel’s error did not rise to

the level of “ineffective assistance.”




       3
          The state argues that the COA limited the issue on appeal to only the question of
Tinsley’s continuing presence as a bailiff after his testimony and that, therefore, counsel’s failure
to object to the testimony is outside the COA and should not be addressed by this court.
Although it is true that we are limited to the issues presented in the COA, we read the issue
specified in the COA as including both the question of Tinsley’s contact with the jury following
the testimony and the introduction of the testimony itself because the issues are intertwined.
Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (holding that the issues specified
in the COA may be construed in light of the pleadings and other parts of the record). In the
conclusion of his opening brief to this court, Scott raises additional arguments regarding errors
made by his trial counsel in not better impeaching one of the prosecution's witnesses and by not
objecting to the prosecution's decision to re-test Scott's pants for blood. These issues are beyond
the scope of the COA, even if liberally read in light of the pleadings and the record, and will not
be reviewed. Murray, 145 F.3d at 1251. Furthermore, Scott mentions these issues only briefly
and only in his conclusion; arguments made only in passing are deemed abandoned. See
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

                                                  7
      The Alabama court’s resolution of this issue was not contrary to nor an

unreasonable application of federal law. The court identified the applicable

federal law on ineffective assistance of claims as set forth in Strickland and

correctly discussed the requirement that Scott must demonstrate prejudice

resulting from any error. The court also correctly applied Strickland; the court

determined that the testimony would be admissible under Alabama rules of

evidence and thus there was no prejudice by failing to object. We, therefore, deny

Scott’s habeas petition as to his claim that his counsel rendered ineffective

assistance for failing to object to Tinsley’s testimony.

      Scott also argues that his trial counsel’s performance was deficient for

failing to request a mistrial when Tinsley was allowed to continue as a bailiff after

he testified for the prosecution.

      The Alabama Court of Criminal Appeals did not address this issue in its

ruling on Scott’s Rule 32 petition, although Scott did raise the issue in his brief

before that court. We note first that a habeas petitioner is deemed to have

exhausted his state remedies by raising an issue to the state court, even if the state

court fails to address the issue in its opinion. Smith v. Digmon, 434 U.S. 332, 333

(1978). Second, a state court decision that resolves claims on the merits – rather

than on procedural grounds – is still an “adjudication on the merits” entitled to

                                           8
deference under 28 U.S.C. § 2254(d)(1). Wright v. Sec’y for the Dept. of Corr.,

278 F.3d 1245, 1255-56 (11th Cir. 2002). Thus, we will grant Scott’s habeas

petition on this issue only if Alabama’s decision was contrary to or an

unreasonable application of federal law, even though it did not squarely address

the question of Tinsley’s contact with jurors after testifying.

      In Turner v. State of Louisiana, 379 U.S. 466, 474 (1965), the U.S. Supreme

Court held that a defendant’s trial is unconstitutionally prejudiced when two key

prosecution witnesses also serve as the jurors’ official guardians and have a

“continuous and intimate association” with the jury “throughout a three-day trial.”

In Turner, the two principal witnesses for the prosecution were deputy sheriffs

who investigated the crime of which the defendant was accused and testified at

trial as to their investigative findings and the defendant’s confession. Id. at 467.

These same deputies also served as “guardians” to the jury, remained in “close and

continual association” with the jurors throughout the trial, and even accompanied

the jurors to meals and place of lodging, conversing regularly with jurors. Id. at

467-68. The Court found that such extensive contact would lend credibility to the

deputy sheriffs’ testimony and that allowing two key prosecution witnesses to

establish credibility with the jurors would prejudice the defendant, especially

where the “credibility which the jury attached to the testimony of these two key

                                           9
witnesses must inevitably have determined whether [the defendant] was to be sent

to his death.” Id. at 473-74.

      This case is distinguishable from Turner. See Beto v. Gonzales, 405 U.S.

1052, 1054 (1972) (“Turner, of course, did not set down a rigid, per se rule

automatically requiring the reversal of any conviction whenever any Government

witness comes into any contact with the jury.”) Tinsley was not a “key”

prosecution witness; his testimony merely impeached the testimony of one defense

witness. Furthermore, his association with the jury following his testimony was

not “close and continual.” Rather, according to Scott, he simply escorted a few

jurors to a cigarette break and was not with the jurors for longer than five minutes.

Tinsley’s testimony occurred at the very end of the trial, and immediately after he

testified, the attorneys delivered their closing arguments. By the time the trial

court gave the jury its instructions, another officer had replaced Tinsley as court

bailiff. Such brief and limited contact with jurors does not establish that Scott’s

trial was prejudiced. Id. (“The Court’s opinion [in Turner] specifically indicated

that association with the jury by a witness whose testimony was ‘confined to some

uncontroverted or merely formal aspect of the case for the prosecution’ would

hardly present a constitutional problem.”); see also Williams v. Thurmer, 561 F.3d

740, 743-44 (7th Cir. 2009) (concluding that a witness who gave only rebuttal

                                          10
testimony and had minimal contact with the jury in the form of courtroom security

does not require reversal of the conviction under Turner); United States v. Britton,

68 F.3d 262, 264 (8th Cir. 1995) (finding no Turner error where a government

witness merely instructed jurors on the use of courtroom audio equipment after

testifying). Accordingly, the Alabama Court of Criminal Appeals’s decision to

deny habeas relief for the asserted failure of Scott’s trial counsel to move for a

mistrial on account of the bailiffs continued presence as a bailiff after testifying

against Scott was not contrary to or an unreasonable application of federal law.

      For the foregoing reasons, we AFFIRM the denial of Scott’s § 2254 habeas

petition.




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