                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 08-15969                   JUNE 25, 2009
                            Non-Argument Calendar            THOMAS K. KAHN
                          ________________________               CLERK


                       D. C. Docket No. 07-61584-CV-AJ

EMILIO JESUS NUNEZ,

                                                             Petitioner-Appellant,

                                     versus

FLORIDA DEPARTMENT OF CORRECTIONS,
Walter A. McNeil, Secretary,
ATTORNEY GENERAL OF THE STATE OF FLORIDA,
Bill McCollum,

                                                          Respondents-Appellees.
                          ________________________

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

                               (June 25, 2009)

Before BIRCH, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Emilio Jesus Nunez, a Florida state prisoner proceeding pro se, appeals the

district court’s denial of his federal habeas petition filed pursuant to 28 U.S.C.
§ 2254. The district court granted a certificate of appealability on the following

issue: whether Nunez’s “trial counsel rendered ineffective assistance of counsel by

not putting on (and/or by not being prepared to put on) an insanity defense.”

Nunez argues that even though he informed counsel he did not want an insanity

defense, his counsel’s failure to prepare to present an insanity defense was

ineffective assistance because the state trial court suggested to counsel that he

should prepare to present the insanity defense in case Nunez changed his mind.

After careful review, we affirm.1

       “When reviewing the district court’s denial of a habeas petition, we review

questions of law and mixed questions of law and fact de novo, and findings of fact

for clear error.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). As

amended by the Anti-Terrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), 28 U.S.C. § 2254(d)

forbids federal courts from granting habeas relief on claims that were previously

adjudicated on the merits in 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
       determined by the Supreme Court of the United States; or




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          In addition, Nunez’s motion to reconsider our denial of his prior motion to expand the
certificate of appealability, construed from his brief on appeal, is DENIED as untimely.

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      (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] federal habeas court making the ‘unreasonable

application’ inquiry should ask whether the state court’s application of clearly

established law was objectively unreasonable.” Williams v. Taylor, 529 U.S. 362,

409 (2000). Moreover, “[i]t is the objective reasonableness, not the correctness per

se, of the state court decision that we are to decide.” Brown v. Head, 272 F.3d

1308, 1313 (11th Cir. 2001). Regarding factual findings, 28 U.S.C. § 2254(e)(1)

provides that “a determination of a factual issue made by a State court shall be

presumed to be correct.     The applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing evidence.”              28 U.S.C.

§ 2254(e)(1).

      The U.S. Constitution provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to have the Assistance of Counsel for his

defense.”   U.S. Const. amend. VI.        The benchmark for judging a claim of

ineffective assistance of counsel is whether counsel’s performance so undermined

the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.      Strickland v. Washington, 466 U.S. 668, 686

(1984). To make such a showing, a petitioner must prove two things. Id. at 687.



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First, the petitioner must show that counsel’s performance was deficient. Second,

the petitioner must establish that the deficient performance prejudiced the defense.

Id. If a petitioner fails to show deficient performance, the court need not go on to

determine whether there was prejudice, and vice-versa. Holladay v. Haley, 209

F.3d 1243, 1248 (11th Cir. 2000).

      “Counsel’s competence . . . is presumed, and the defendant must rebut this

presumption by proving that his attorney’s representation was unreasonable under

prevailing professional norms and that the challenged action was not sound

strategy.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (citation omitted).

There is a strong presumption that counsel’s conduct fell within the range of

reasonable professional assistance. Strickland, 466 U.S. at 689. If the record is

incomplete or unclear about counsel’s actions, then it is presumed that counsel

exercised reasonable professional judgment. Williams v. Head, 185 F.3d 1223,

1228 (11th Cir. 1999).

      Although the question under § 2254(d)(1) hinges on Supreme Court law, our

application of Strickland is useful in illustrating whether the state court’s

application of Strickland was reasonable. In Gates v. Zant, we said, “[g]iven the

finite resources of time and money that face a defense attorney, it simply is not

realistic to expect counsel to investigate substantially all plausible lines of



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defense.”    863 F.2d 1492, 1498 (11th Cir. 1989).        We further explained that

counsel renders effective assistance when his decision to not pursue a particular

defense is reasonable under the circumstances. Id. (citing Strickland, 466 U.S. at

691).     And in Foster v. Strickland, 707 F.2d 1339, 1343 (11th Cir. 1983), the

petitioner had instructed his defense counsel to not present an insanity defense, but

then argued that his counsel was ineffective for failing to investigate an present an

insanity defense. We held that because defense counsel had an ethical obligation

to follow his client’s choice to not present an insanity defense, the petitioner could

not claim that counsel was ineffective for following the petitioner’s instructions.

Id. at 1343-44.

        As applied here, the state court’s determination that counsel was not

ineffective was not objectionably unreasonable.       As the record shows, Nunez

instructed his counsel as early as February 1999 to “abandon all mental health

issues.” Nunez later explained that an insanity defense was not in his best interest

because, if he was acquitted on the basis of insanity, his release from a state

hospital would be at the discretion of the court, while if he was convicted of first-

degree murder, he would only need to serve an additional 16 to 17 years’

imprisonment before being eligible for parole because of the time he had already

served.     In September 1999, Nunez told the court that his counsel was still



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planning to use the insanity defense, despite Nunez’s instructions not to, and the

court confirmed that counsel understood that he could not put forth an insanity

defense without Nunez’s permission. At a status conference in December 1999,

Nunez informed the court he was still refusing the insanity defense. A month later,

during a break in voir dire, Nunez’s counsel told the court that he had prepared

what he thought was the best insanity defense he had ever seen as a lawyer;

however, Nunez continued to refuse the defense, and counsel had abandoned it.

While the trial court reminded counsel that it had previously suggested that he be

prepared to present an insanity defense in case Nunez changed his mind, counsel

explained that it was unrealistic for him to prepare the insanity defense and

Nunez’s requested defense -- crime-of-passion -- because of the amount of time

required to prepare the case for trial. The court opined that “Nunez has made the

decision he didn’t want to pursue an insanity defense. I previously ruled he was

competent by those two doctors. He gets to call that shot. It is in direct opposition

to the advice of counsel . . . He has chose to make this decision.”

      Following his conviction and appeals, Nunez filed a petition in state court

for post-conviction relief, which included an ineffective-assistance-of-counsel

claim asserting that even though he told his counsel he did not want an insanity

defense, his counsel was ineffective for not preparing an insanity defense because



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the trial court told counsel to have the insanity defense ready in case Nunez

changed his mind. The state habeas court denied Nunez’s claim, concluding that

his counsel was not ineffective because Nunez precluded counsel from proceeding

with an insanity defense. Nunez later filed this same claim in his § 2254 petition in

federal district court, which similarly denied Nunez’s petition.

      On the record here, we reject Nunez’s claim that the state court’s

determination that trial counsel was not constitutionally ineffective was an

unreasonable application of Supreme Court law. As our case law shows, it was a

reasonable choice for counsel to not prepare a defense his client had repeatedly

refused because he did not think it was an appropriate use of his limited trial

preparation time, which is a choice left to counsel’s reasonable discretion. See

Gates, 863 F.2d at 1498 (holding that counsel renders effective assistance of

counsel when he makes a choice, that is reasonable under the circumstances, to not

use his limited amount of preparation time to pursue a defense that he did not think

was viable); Foster, 707 F.2d at 1343-44 (holding that a petitioner may not

complain of his counsel following his instructions to not investigate and prepare an

insanity defense). Because this is the same reason that the state court used -- i.e.

Nunez’s instruction to counsel to not pursue the insanity defense -- Nunez cannot

show that the state court’s application of Strickland was objectively unreasonable.



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      Since Nunez has not shown that counsel’s performance was deficient under

the first prong of Strickland, he cannot show that his counsel was constitutionally

ineffective. 466 U.S. at 687.      We therefore need not consider whether Nunez

changed his mind as to wanting the insanity defense or whether the insanity

defense would have prevailed at trial because those issues are part of the prejudice

prong of Strickland. Holladay, 209 F.3d at 1248. Accordingly, we affirm the

district court’s denial of Nunez’s § 2254 petition.

      AFFIRMED.




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