                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-10607                 JULY 12, 2011
                                                                     JOHN LEY
                                   Non-Argument Calendar               CLERK
                                 ________________________

                           D.C. Docket No. 3:06-cv-00403-TJC-TEM

JERRY MEANS,

lllllllllllllllllllll                                              Petitioner-Appellant,

                                            versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
PAUL DECKER, Warden,

lllllllllllllllllllll                                           Respondents-Appellees.

                                ________________________

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

                                        (July 12, 2011)

Before EDMONDSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
      Jerry Means, a state prisoner proceeding pro se, appeals the district court’s

denial of his 28 U.S.C. § 2254 habeas petition. In his petition, Means asserted

several claims for relief, including that (1) there was insufficient evidence to

support his conviction, and (2) his counsel was ineffective for failing to challenge

on direct appeal the trial court’s finding that the victim was competent to testify.

The district court granted a certificate of appealability only as to the ineffective

assistance claim, and we expanded the certificate of appealability to include the

insufficient evidence claim.

                                           I.

      On appeal, Means first argues that the evidence at trial was insufficient to

support his conviction for sexual battery upon a child less than 12 years of age.

Specifically, he asserts that the evidence consisted solely of the inconsistent

testimony and out-of-court statements of his alleged victim, and that the state

failed to prove essential elements of the crime charged. Accordingly, he contends

that the state court unreasonably applied the Supreme Court’s decision in Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979)—as interpreted by state

and federal courts—thus entitling him to relief under 28 U.S.C. § 2254(d).

Alternatively, he argues that § 2254(d) does not apply where the state court failed

to cite to controlling Supreme Court precedent or to make explicit factual findings,

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and thus that he is entitled to relief even if the state court reasonably misapplied

the Jackson standard.

      When considering a district court’s denial of a § 2254 petition, we review

the district court’s factual findings for clear error and its legal determinations de

novo. Owen v. Sec’y for Dep’t of Corr., 568 F.3d 894, 907 (11th Cir. 2009), cert.

denied, 130 S.Ct. 1141 (2010). At the same time, however, we are essentially

reviewing a state court’s decision on the issue. Putman v. Head, 268 F.3d 1223,

1240 (11th Cir. 2001). Thus, pursuant to § 2254(d), we will not grant habeas

relief on a state prisoner’s claim that was denied on the merits in state court unless

the state court decision: “‘(1) . . . was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or (2) . . . was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.’” Id.

at 1240-41 (quoting 28 U.S.C. § 2254(d)) (emphasis added). The Supreme Court

recently reiterated that § 2254(d) applies even to summary state court opinions, as

well as to opinions that do not cite Supreme Court precedent. Harrington v.

Richter, 562 U.S. ___, ___, 131 S.Ct. 770, 784 (2011).

      The Supreme Court has further explained that the “contrary to” and

“unreasonable application” clauses of § 2254(d)(1) have “independent meaning.”

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Williams v. Taylor, 529 U.S. 362, 404-05, 120 S. Ct. 1495, 1519 (2000).

Specifically, a state court decision is “contrary to” clearly established federal law

if it “contradicts [the Supreme] Court on a settled question of law or holds

differently than did that Court on a set of materially indistinguishable facts.”

Green v. Nelson, 595 F.3d 1245, 1248 (11th Cir.), cert. denied, 131 S. Ct. 827

(2010). On the other hand, a decision is an unreasonable application of clearly

established federal law if it “identifies the correct governing legal principle as

articulated by the United States Supreme Court, but unreasonably applies that

principle to the facts of the petitioner’s case.” Id. “In other words, it is one that

‘unreasonably extends [the] principle . . . to a new context where it should not

apply or unreasonably refuses to extend [it] to a new context where it should

apply.’” Id. (quoting Williams, 529 U.S. at 407, 120 S. Ct. at 1520). Importantly,

clearly established federal law is not the case law of the lower federal courts,

including our decisions, but rather “refers to the holdings, as opposed to the dicta,

of the Supreme Court’s decisions as of the time of the relevant state court

decision.” Putman, 268 F.3d at 1241 (quotation and alteration omitted).

      The Supreme Court’s decision in Jackson v. Virginia provides the federal

due process benchmark for evidentiary sufficiency in criminal cases. See Green,

595 F.3d at 1252. Under that benchmark, “the relevant question is whether, after

                                           4
viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. “This familiar

standard gives full play to the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” Id.

      Substantively, the Florida offense of sexual battery on a child under 12

years of age involves “oral, anal, or vaginal penetration by, or union with, the

sexual organ” of such child by a person over 18 years of age. Fla. Stat.

§ 794.011(1)(h), (2)(a). The “union with” language in the statute permits a

conviction based on contact with the relevant portion of anatomy, whereas

“penetration” requires some entry into the relevant part, however slight. Seagrave

v. State, 802 So. 2d 281, 287 n.7 (Fla. 2001). Thus, “[i]t is illegal for a man to

touch the mouth, anus or vagina of the victim with his penis.” Richards v. State,

738 So. 2d 415, 418 (Fla. 2d Dist. Ct. App. 1999).

      In the instant case, Means’s contention that the district court erred by

choosing to apply the § 2254(d) analysis is without merit, since that analysis

applies even to summary opinions. In applying the analysis, the district court

correctly found that the state court reasonably applied the Jackson standard,

                                            5
because there was a sufficient basis in the record for concluding that the

inconsistencies in the victim’s statements were attributable to her age. The state

appellate court explicitly found that EC was “remarkably consistent” in describing

Means’s conduct and our review of the evidence supports that finding. Although

she was sometimes inconsistent in describing the details of the incident, her

overall account was not. Accordingly, a rational trier of fact could have found the

essential elements of sexual battery beyond a reasonable doubt.

                                          II.

      Second, Means argues that the district court erred in denying his ineffective

assistance claim because the Florida habeas court unreasonably applied

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

Specifically, he asserts that his counsel was constitutionally ineffective in failing

to appeal the trial court’s determination that his alleged victim was competent to

testify. He further contends that the district court was required to conduct an

independent evidentiary hearing on his ineffective assistance claim because he

was not permitted to adequately develop the record in state court.

      An ineffective assistance claim presents a mixed question of law and fact,

which we review de novo. Williams v. Allen, 598 F.3d 778, 788 (11th Cir. 2010),

cert. denied, 131 S. Ct. 906 (2011). In the context of an ineffective assistance

                                           6
claim raised in a § 2254 petition, the inquiry turns upon whether the state decision

was contrary to or an unreasonable application of Strickland. See Woodford v.

Visciotti, 537 U.S. 19, 22, 24-25, 123 S. Ct. 357, 358-60 (2002). Thus, “[i]n

addition to the deference to counsel’s performance mandated by Strickland, the

AEDPA adds another layer of deference—this one to a state court’s

decision—when we are considering whether to grant federal habeas relief from a

state court’s decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004). Notably, where “the record refutes [a petitioner’s] factual allegations or

otherwise precludes habeas relief, a district court is not required to hold an

evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933,

1940 (2007).

      To prevail on an ineffective assistance claim, a defendant must demonstrate

both: (1) that his counsel’s performance fell below an objective standard of

reasonableness, and (2) that counsel’s deficient performance prejudiced the

defendant. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Notably, a court need

not address both components of the inquiry if the defendant makes an insufficient

showing on one. Id. at 697, 104 S. Ct. at 2069.

      The performance prong of the ineffective assistance standard entails a

deferential review of counsel’s conduct. Reed v. Sec’y, Fla. Dep’t of Corr., 593

                                          7
F.3d 1217, 1240 (11th Cir.), cert denied, 131 S. Ct. 177 (2010). “In assessing the

reasonableness of counsel’s performance, courts must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. (quotation omitted). Thus, the Sixth Amendment

does not require criminal defense attorneys to take a “nothing to lose” approach

and “raise every available nonfrivolous defense.” Knowles v. Mirzayance, 556

U.S. ___, ___, 129 S. Ct. 1411, 1419, 1422 (2009).

      With respect to prejudice, courts ask whether “there is a reasonable

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

proceeding would have been different.” Strickland, 466 U.S. at 687, 104 S. Ct. at

2064. In the context of a claim that counsel was ineffective on appeal, “the court

must first perform a review of the merits of the omitted or poorly presented claim.”

Heath v. Jones, 941 F.2d 1126, 1132 (11th Cir. 1991) (quotation and alteration

omitted). The defendant carries his burden of establishing prejudice if the court

finds that the neglected claim would have had a reasonable probability of success

on appeal. See id.

      Substantively, under Florida law, the competency of a child witness is

assessed based on: “(1) whether the child is capable of observing and recollecting

facts, (2) whether the child is capable of narrating those facts to the court or to a

                                           8
jury, and (3) whether the child has a moral sense of the obligation to tell the truth.”

Griffin v. State, 526 So. 2d 752, 753 (Fla. 1st Dist. Ct. App. 1988). This inquiry is

“one that must be announced on the record and it must be supported by findings of

fact.” Barton v. State, 704 So. 2d 569, 574 (Fla. 1st Dist. Ct. App. 1997). Further,

the trial court is obligated to make an “adequate inquiry” concerning the child’s

sense of duty to tell the truth. S.C. v. State, 837 So. 2d 1159, 1160 (Fla. 1st Dist.

Ct. App. 2003). In reviewing a trial court’s competency determination, Florida

appellate courts consider “the entire context of [a witness’s] testimony and

whether [that] testimony is corroborated by other evidence.” Bennett v. State, 971

So. 2d 196, 201 (Fla. 1st Dist. Ct. App. 2007). Notably, we have recognized that

state courts are the final arbiters of state law and that their conclusions should not

be second-guessed by federal courts. See Callahan v. Campbell, 427 F.3d 897,

932 (11th Cir. 2005) (denying habeas relief where a state court had explicitly

found that the petitioner’s unraised state-law claim lacked merit).

      Even assuming that the failure to appeal the competency determination by

Means’s appellate counsel fell below an objective standard of reasonableness, the

Florida habeas court’s denial of this claim was nevertheless reasonable in light of

Strickland’s prejudice prong. The trial record provides a sufficient basis for

concluding that the victim was competent to testify under state law, since there

                                           9
was evidence showing that she could recall facts and that she had a sense of duty

to tell the truth. Accordingly, the district court did not err in denying Means’s

§ 2254 petition without first holding an evidentiary hearing.

      Based on a review of the record and the parties’ briefs, we affirm the district

court’s decision.

      AFFIRMED.1




      1
               Means’s motion to supplement the record is DENIED. Means’s motion for leave
to amend his initial brief is GRANTED.

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