           Case: 13-11898    Date Filed: 01/23/2015   Page: 1 of 22


                                                                      [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 13-11898
                         ________________________

                   D.C. Docket No. 5:10-cv-00755-SLB



CHRISTOPHER TAFT LANDERS,

                                               Petitioner - Appellant,

versus

WARDEN,
THE ATTORNEY GENERAL OF THE
STATE OF ALABAMA,

                                               Respondents – Appellees.

                         ________________________

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

                             (January 23, 2015)

Before HULL, MARCUS and DUBINA, Circuit Judges.

MARCUS, Circuit Judge:
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      Petitioner Christopher Taft Landers, an Alabama inmate, appeals from a

district court order denying his habeas petition without holding an evidentiary

hearing. Landers challenges the adequacy of the state court’s fact-finding

procedure on collateral review: he claims that the Alabama court’s finding that he

did not receive ineffective assistance of counsel — a finding the court made on the

basis of dueling affidavits, without an evidentiary hearing, pursuant to Rule 32 of

the Alabama Rules of Criminal Procedure — was “an unreasonable determination

of the facts” under 28 U.S.C. § 2254(d)(2) (2014). He also says that the federal

district court was wrong to deny his petition and his request for an evidentiary

hearing to further develop the factual basis of his claims. We disagree. Petitioner

cannot show that, when measured through the deferential lens of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), the state court’s fact-finding

methods in this case were so deficient as to render its factual determinations

unreasonable. Having determined that the state court did not run afoul of §

2254(d)(2), the district court properly denied petitioner’s request for an evidentiary

hearing. Accordingly, we affirm.

                                          I.

                                         A.

      On June 25, 2007, Christopher Landers pleaded guilty in Alabama’s Morgan

County Circuit Court to two counts of first-degree sodomy, one count of first-


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degree sexual abuse, and one count of enticing a child to enter a vehicle or house

for immoral purposes. The trial court sentenced Landers to concurrent terms of

eighteen years for the sodomy convictions and ten years each for the sexual abuse

and child enticement convictions.

       Landers timely filed a petition pro se seeking post-conviction relief pursuant

to Rule 32 of the Alabama Rules of Criminal Procedure, alleging that his trial

counsel, John Mays, misrepresented to him that Alabama’s “85% rule”1 would not

apply to his sentence and he would, therefore, be eligible for parole within six

years if he took the plea deal the government had offered. (In fact, Landers would

not be considered for parole until at least the year 2021, after he had served fifteen

years of his eighteen-year sentence.) Landers claimed that counsel’s misstatement

(1) rendered his guilty plea involuntary, and (2) constituted ineffective assistance

of counsel. He asked the trial court to allow him to withdraw his guilty plea,

release him on bond, or hold an evidentiary hearing.

       Landers included two brief affidavits with his petition: one from his mother,

Mary G. Long, and one from his step-father, Hillard Long, who each stated that

they were present at two meetings when Mays represented that Landers would be

eligible for parole in six years if he took the plea deal. They also said that at these


1
 Pursuant to Article I, section 9 of the Alabama Board of Pardons and Parole Rules and
Regulations, when an inmate is convicted of first-degree sodomy, the initial parole consideration
date is set upon the completion of 85% of his total sentence or fifteen years, whichever is less.
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meetings, Landers told Mays that he would accept the plea only if Mays was sure

that he would be eligible for parole in six years. The State filed a response refuting

Landers’s claims and attached an affidavit from counsel Mays in which he stated,

among other things, that he told Landers a minimum of twenty times that a first-

degree sodomy conviction was subject to the 85% rule. Mays’s affidavit was

appreciably longer and more detailed than either of the affidavits submitted by

Landers.

      The state habeas court denied Landers’s Rule 32 petition without holding an

evidentiary hearing. Based on the pleadings and affidavits, the court found “as a

matter of fact that [Mays] correctly advised [Landers] regarding the minimum

amount of time [he] would have to serve,” and, therefore, that Mays’s conduct did

not constitute ineffective assistance. The court observed that it could resolve the

disputed factual issues based upon the affidavits the parties had submitted where

(1) petitioner’s claims “are fully set out in a sworn petition and are supported by a

sworn affidavit,” and (2) the State’s response is supported by a sworn affidavit. In

doing so, the court cited Rule 32.9(a) of the Alabama Rules of Criminal Procedure,

which reads, in part:

      Unless the court dismisses the [Rule 32] petition, the petitioner shall
      be entitled to an evidentiary hearing to determine disputed issues of
      material fact, with the right to subpoena material witnesses on his
      behalf. The court in its discretion may take evidence by affidavits,
      written interrogatories, or depositions, in lieu of an evidentiary
      hearing, in which event the presence of the petitioner is not required,
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      or the court may take some evidence by such means and other
      evidence in an evidentiary hearing.

Ala. R. Crim. P. 32.9(a) (2014).

      Landers, still pro se, filed a Motion to Reconsider and Retract the habeas

court’s order and again requested an evidentiary hearing. In his motion, Landers

indicated that he “had no idea” the court would rule solely on the basis of the

affidavits, and that if he had known, he would have submitted an affidavit from a

second attorney, Christy Miller, to support his claims with circumstantial evidence.

Attached to his motion, Landers submitted an affidavit in which he stated that

Miller had visited him in June and July 2007 and had informed him that Mays had

told her that Landers would be eligible for parole after only five years. Landers

stated that, if he had been granted an evidentiary hearing, he would have

subpoenaed Miller to testify about her conversation with Mays, and that he had not

sought an affidavit from her initially because he did not think the court would rule

on the affidavits alone.

      In response to Landers’s motion, on June 6, 2008, the state habeas court

vacated its prior order and granted Landers thirty days to file an affidavit from

Miller. The court deferred ruling on Landers’s request for an evidentiary hearing

until the court received the affidavit. Twenty-six days later, Landers filed a

response again requesting an evidentiary hearing so he could subpoena Miller to

testify and subpoena jail records showing the dates of Miller’s and Mays’s visits.
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He also recounted his efforts to have Miller submit an affidavit, explained that she

had not responded, and stated that an evidentiary hearing was necessary for him to

subpoena Miller because she did not appear willing to comply voluntarily.

      On July 28, 2008, the state habeas court vacated its earlier June 6th order

and reinstated its initial ruling denying relief. The court determined that Landers

was not entitled to relief from the initial order because Rules 32.3 and 32.6 of the

Alabama Rules of Criminal Procedure “place an affirmative duty” on the petitioner

“to fully disclose the factual basis for the claims . . . in his petition.” Moreover,

“upon further consideration,” the court concluded that Landers’s motion for

reconsideration was “in effect an untimely motion to amend his petition,” because

Landers sought to present new facts that he had not initially alleged. Thus, the

court ruled that it had no authority to grant the motion. In the alternative, the court

concluded that, even if Landers’s motion was characterized as a proper motion for

reconsideration, the factual allegations contained in his affidavit did not create a

genuine issue of material fact regarding his claim. Specifically, the alleged facts

did not directly refute the content of the lawyer’s detailed affidavit, and to the

extent that the additional facts constituted circumstantial evidence, they were

insufficient to rebut the presumption that Mays’s conduct was not deficient. The

court noted that the presumption of competence in this case was bolstered by “the

Court’s personal knowledge of the proceedings and of counsel’s significant


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experience representing criminal defendants.” The court added that, at the time of

his guilty plea, Landers had certified in writing to the court that he had not been

offered any inducement or reward to plead guilty; therefore, he was estopped from

asserting a contrary position in state habeas.

       Landers appealed to the Alabama Court of Criminal Appeals, arguing in part

that the state habeas court had abused its discretion by denying his Rule 32 petition

without holding an evidentiary hearing and without adequately explaining why it

had credited Mays’s affidavit over his own. The Court of Criminal Appeals

affirmed 2 the trial court’s denial of Landers’s petition, noting that the court relied

on “a detailed affidavit” from Mays. The Supreme Court of Alabama denied

certiorari.

                                                B.

       On March 3, 2010, Landers timely filed a § 2254 habeas petition in the

United States District Court for the Northern District of Alabama, presenting the

same claims he had presented in his state habeas petition: (1) that his guilty plea

was involuntary, and (2) that his trial counsel had rendered ineffective assistance of

counsel, both on the basis of Mays’s alleged misrepresentation regarding Landers’s

parole eligibility. Landers argued that it was an abuse of discretion for the state

2
  In a series of procedural steps irrelevant to the resolution of the case, the Court of Criminal
Appeals originally dismissed Landers’s appeal as untimely. The Alabama Supreme Court
granted certiorari and reversed. Ex parte Landers, 53 So. 3d 877, 878 (Ala. 2009). On remand,
the appeals court affirmed the trial court in an unpublished memorandum opinion.
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trial court to make its factual findings without conducting an evidentiary hearing

since the State’s motion to dismiss was supported by only one affidavit while

Landers’s petition was supported by three. He argued that the court abused its

discretion by not holding an evidentiary hearing in which Miller could be

subpoenaed. He also claimed that the lack of an evidentiary hearing deprived him

of a fair proceeding, in violation of “[t]he intent” of Rule 32 of the Alabama Rules

of Criminal Procedure. The State argued, in turn, among other things, that the trial

court’s factual determination on the basis of the affidavits was appropriate under

Rule 32.9.

      A federal magistrate judge recommended that the case be referred for a

federal evidentiary hearing, having determined that the state trial court and the

Alabama Court of Criminal Appeals had applied Rule 32.9 in a manner that

deprived Landers of a full and fair hearing. The magistrate judge cited several

opinions from this Court that questioned whether a court could make credibility

determinations without hearing live testimony, including Smith v. Zant, 887 F.2d

1407, 1433 (11th Cir. 1989) (en banc) (Kravitch, J., concurring in part and

dissenting in part), and Agee v. White, 809 F.2d 1487, 1494 n.3 (11th Cir. 1987).

Therefore, the magistrate judge determined that the state court’s findings were an

unreasonable determination of the facts.




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       The district court rejected the magistrate judge’s Report and

Recommendation. The court noted that “a district court is not required to hold an

evidentiary hearing” when “the state-court record precludes habeas relief under the

limitations of § 2254(d),” and that a petitioner must “overcome the limitation of [§

2254(d)(2)] on the record that was before the state court.” Landers v. Mitchem,

2013 WL 1282131, No. 5:10-CV-0755-HGD, at *1 (N.D. Ala. Mar. 27, 2013)

(quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1399-1400 (2011) (quotation marks

omitted)). The court “found no case holding that Alabama’s procedure of allowing

. . . credibility determinations” in habeas proceedings on the basis of affidavits,

pursuant to Rule 32.9, “violate[d] petitioner’s constitutional rights.” Id. at *3. The

district court emphasized that the magistrate judge had cited cases decided before

the passage of AEDPA and quoted an outdated version of § 2254(d). 3 Id. The

court found that, in the absence of any case law, not all reasonable jurists would

agree that making a credibility determination on the basis of affidavits was “an

unreasonable determination of the facts” pursuant to § 2254(d)(2), and, therefore,

the state habeas court’s factual finding was not unreasonable. Id. at *3-4. Thus,

the court denied Landers’s petition without an evidentiary hearing.

3
  Under the pre-AEDPA version of § 2254(d), the presumption of correctness of a state court’s
factual findings was inapplicable if any of several factors were met, including “that the
factfinding procedure employed by the State court was not adequate to afford a full and fair
hearing.” 28 U.S.C. § 2254(d) (1994). In AEDPA, these factors were eliminated. See Valdez v.
Cockrell, 274 F.3d 941, 949-51 (5th Cir. 2001). The magistrate judge cited this since-removed
language from the outdated version of § 2254(d)(2).


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      Landers timely appealed, arguing that the district court erred in denying his

habeas petition without conducting an evidentiary hearing because the state court’s

decision was based on an unreasonable determination of fact pursuant to §

2254(d)(2).

                                          II.

                                          A.

      We review de novo the denial of a state prisoner’s federal habeas petition.

Bates v. Sec’y, Fla. Dep’t of Corr., 768 F.3d 1278, 1287 (11th Cir. 2014).

However, the scope of our review in this case is further governed by AEDPA.

When a state court has adjudicated a petitioner’s claim on the merits — and the

parties agree that the state court adjudicated the claim on the merits and that

AEDPA governs this inquiry — AEDPA prohibits relief unless the state court’s

decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,”

28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding,” id. §

2254(d)(2). Only § 2254(d)(2) has been invoked today.

      “AEDPA ‘imposes a highly deferential standard for evaluating state court

rulings’ and ‘demands that state-court decisions be given the benefit of the doubt.’”

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253 (11th Cir. 2013) (quoting Renico


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v. Lett, 559 U.S. 766, 773 (2010)), cert. denied, 135 S. Ct. 67 (2014). Under §

2254(d)(2), 4 “[t]he question . . . is not whether a federal court believes the state

court’s determination was incorrect but whether that determination was

unreasonable — a substantially higher threshold.” Schriro v. Landrigan, 550 U.S.

465, 473 (2007). The Supreme Court has conceded that “the term ‘unreasonable’

is no doubt difficult to define,” Wood, 558 U.S. at 301 (quoting Williams v.

Taylor, 529 U.S. 362, 410 (2000) (internal quotation marks omitted)), but the

Court has instructed that it is not sufficient that “the federal habeas court would

have reached a different conclusion in the first instance,” id. That is, the state

court’s determination must be “objectively unreasonable.” Miller-El v. Cockrell,

537 U.S. 322, 340 (2003). The Supreme Court has found state factual findings

unreasonable under § 2254(d)(2) when the direction of the evidence, viewed

cumulatively, was “too powerful to conclude anything but [the petitioner’s factual

claim],” Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 265 (2005), and when a

4
  AEDPA also prescribes that “a determination of a factual issue made by a State court shall be
presumed to be correct,” and that the petitioner has “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The interaction between
(d)(2) and (e)(1), which appear to articulate different standards for reviewing state factual
findings, is an open question in this circuit. Cave v. Sec’y for Dep’t of Corr., 638 F.3d 739, 744-
47 & 747 n.6 (11th Cir. 2011); see Wood v. Allen, 558 U.S. 290, 300 (2010). Because Landers
does not meet even the arguably more forgiving § 2254(d)(2) standard, and “our view of the
reasonableness of the state court’s factual determination in this case does not turn on any
interpretive difference regarding the relationship between these provisions,” Wood, 558 U.S. at
300, we are not required to address the relationship between these provisions in this case. See id.
at 293; Cave, 638 F.3d at 747 (“We have not yet had an occasion to completely define the
respective purviews of (d)(2) and (e)(1), and this case presents no such opportunity . . . . The
state court’s decisions on Cave’s claims were not based on unreasonable factual determinations
in light of the evidence before it under any standard.”).
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state court’s finding was “clearly erroneous,” Wiggins v. Smith, 539 U.S. 510,

528-29 (2003).

       The Supreme Court has been clearer about explicating the standard for

§ 2254(d)(1) (“contrary to, or . . . an unreasonable application of . . . Federal law”).

In that context, the Court has said that habeas relief is precluded “so long as

fairminded jurists could disagree on the correctness of the state court’s decision.”

Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (internal quotation marks

omitted). 5 We apply this same standard when evaluating the reasonableness of a

state court’s decision under § 2254(d)(2). See Holsey v. Warden, Ga. Diagnostic

Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (“A state court’s . . . determination of

facts is unreasonable only if no ‘fairminded jurist’ could agree with the state

court’s determination . . . .”); accord Ferguson v. Sec’y, Fla. Dep’t of Corr., 716

F.3d 1315, 1332 (11th Cir.), cert. denied sub nom. Ferguson v. Crews, 134 S. Ct.

33 (2013).

                                               B.

       At issue in this case are two intertwined determinations made by the district

court: its denial of Landers’s request for a federal evidentiary hearing and its

outright denial of Landers’s petition for habeas relief. Recent Supreme Court law


5
  Although the language in Richter sometimes describes § 2254(d) as a whole, without
specifying which prong is being explicated, see 131 S. Ct. at 786-87, only § 2254(d)(1) was at
issue in that case.
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suggests that in a § 2254 case, these two determinations usually go hand-in-hand.

The Supreme Court has clarified the limited role of federal evidentiary hearings in

habeas proceedings. In Cullen v. Pinholster, the Court held that “review under §

2254(d)(1) is limited to the record that was before the state court that adjudicated

the claim on the merits,” 131 S. Ct. at 1398, and therefore “evidence introduced in

federal court has no bearing on § 2254(d)(1) review.” 131 S. Ct. at 1400. As the

Ninth Circuit has noted, “[t]his effectively precludes federal evidentiary hearings

for such claims because the evidence adduced during habeas proceedings in federal

court could not be considered in evaluating whether the claim meets the

requirements of § 2254(d).” Gulbrandson v. Ryan, 738 F.3d 976, 993-94 (9th Cir.

2013), cert. denied, 134 S. Ct. 2823 (2014).

      Pinholster’s holding governs only claims brought under § 2254(d)(1), but its

logic applies even more clearly to § 2254(d)(2), which contains an explicit textual

restriction to evaluate the state court ruling only “in light of the evidence presented

in the State court proceeding.” See Pinholster, 131 S. Ct. at 1400 n.7 (noting “[t]he

additional clarity of § 2254(d)(2) on this point”). As best we can tell, every circuit

court to consider this issue has held that the Pinholster restriction applies to

§ 2254(d)(2) claims, as well. See Murray v. Schriro, 745 F.3d 984, 1001 (9th Cir.

2014); Garuti v. Roden, 733 F.3d 18, 23 (1st Cir. 2013); Blue v. Thaler, 665 F.3d

647, 655-56 (5th Cir. 2011); Rountree v. Balicki, 640 F.3d 530, 538 (3d Cir. 2011);


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cf. Black v. Workman, 682 F.3d 880, 895 (10th Cir. 2012). Therefore, before a

habeas petitioner may be entitled to a federal evidentiary hearing on a claim that

has been adjudicated by the state court, he must demonstrate a clearly established

federal-law error or an unreasonable determination of fact on the part of the state

court, based solely on the state court record.

         Once a petitioner has demonstrated such an error or unreasonable

determination, “the decision to grant [an evidentiary] hearing rests in the discretion

of the district court.” Landrigan, 550 U.S. at 468; cf. Velazco v. Dep’t of Corr.,

No. 13-12525, 2014 WL 7102328, at *2 (11th Cir. Dec. 16, 2014) (“If a petitioner

satisfies [his] burden [under § 2254(d)(1)], we then review for abuse of discretion

the denial of an evidentiary hearing.”). Thus, we turn to petitioner’s § 2254(d)(2)

claim.

                                           C.

         Landers alleges that the state habeas 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), because the fact-finding

procedure the court employed (relying on dueling affidavits without an evidentiary

hearing) was not reasonable to make the credibility determination in his case. The

exact doctrinal basis of this claim is unclear: at different points in his time before

the federal courts, he appears to have alleged that the state court’s procedure


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misapplied Alabama law, violated his Fourteenth Amendment due process rights,

or simply rendered the state court’s factual conclusions unreasonable under the

terms of § 2254(d)(2). We address each of these claims in turn.

                                          1.

      At times in his briefing before the federal district court and this Court,

Landers seems to allege that the state habeas court incorrectly applied Rule 32.9 of

the Alabama Rules of Criminal Procedure. Insofar as this is his claim, it is a non-

starter. “[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68

(1991) (rejecting the court of appeals’ argument that petitioner was due habeas

relief in part because evidence in state court was incorrectly admitted pursuant to

California law); see Taylor v. Sec’y, Fla. Dep’t of Corr., 760 F.3d 1284, 1295

(11th Cir. 2014). If the Alabama state habeas court violated Alabama state law,

that is for the Alabama appellate courts to determine — unless the fact-finding

procedure itself violated federal law, the issue to which we now turn.

                                          2.

      At oral argument before this Court, Landers’s counsel insisted that his client

was arguing not only that the state court’s inadequate fact-finding procedures

rendered its decision unreasonable under § 2254(d)(2), but also that they violated

his Fourteenth Amendment due process rights. In theory, a due process claim


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could arguably be advanced in habeas on the basis of § 2254(d)(1), asserting that

the state court’s procedures violated clearly established Supreme Court case law.

      However, as counsel subsequently conceded at the lectern, no such claim

appeared in any of petitioner’s post-conviction filings. Accordingly, the petitioner

has waived this claim in three separate ways. First, he failed to “‘fairly present’ his

claim in each appropriate state court . . . thereby [failing to] alert[] that court to the

federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004); see

Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam) (reversing grant of

habeas petition where “[r]espondent did not apprise the state court of his claim that

the evidentiary ruling of which he complained was not only a violation of state

law, but denied him the due process of law guaranteed by the Fourteenth

Amendment”). Second, he failed to present this claim before the district court.

See Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir. 2013) (“A habeas petitioner

must present a claim in clear and simple language such that the district court may

not misunderstand it.”). Finally, he failed to present this claim in any brief before

this Court. See APA Excelsior III L.P. v. Premiere Technologies, Inc., 476 F.3d

1261, 1269 (11th Cir. 2007) (“[W]e do not consider claims not raised in a party’s

initial brief and made for the first time at oral argument.”).

      The closest Landers came to making this argument was his assertion before

the state court, the district court, and this Court, that he did not receive a “fair”


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proceeding in the state habeas court. Notably, however, he used this phrase as part

of an argument that the state court had undermined the purposes of Rule 32 of the

Alabama Rules of Criminal Procedure; he did not make a due process or

Fourteenth Amendment claim. Indeed, no citations to the Fourteenth Amendment

and no mention of “due process” appear anywhere in Landers’s post-conviction

briefs before any court. Although we construe pro se petitions liberally, 6 Dupree,

715 F.3d at 1299, we will not infer a claim out of thin air. This is particularly

important in situations where, as here, petitioner “provides no citation of any case

that might have alerted the court to the . . . nature of the claim.” Baldwin, 541 U.S.

at 33. It is no surprise, then, that none of the other courts in this case that had

addressed Landers’s claims, state or federal, considered the Due Process Clause as

a basis for his claims. 7 Landers’s failure to fairly present a due process claim

deprived the state courts of an “‘opportunity to pass upon and correct’” any alleged

due process violations. Id. at 29 (quoting Duncan, 513 U.S. at 365). Any due

process claim has not been properly preserved, and we decline to consider it now.



6
 Landers proceeded pro se in his habeas proceedings until he reached this Court, at which point
he was appointed counsel.
7
  The magistrate judge did appear to base his Report and Recommendation on the ground that the
state court evidentiary procedures deprived Landers of “a full and fair hearing.” However, he
never linked this standard to the Due Process Clause; instead, he appeared to draw the standard
from an outdated version of § 2254 and the Supreme Court’s pre-AEDPA case Townsend v.
Sain, 372 U.S. 293, 312-13 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1
(1992), superseded by 28 U.S.C. § 2254(e)(2).
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      In any event, Landers did have an opportunity to be heard and he cited no

Supreme Court precedent requiring an evidentiary hearing or precluding a court

from making a factual finding on the basis of dueling affidavits. Thus, he has no

clearly established law to support this claim.

                                          3.

      Finally, we turn to Landers’s only viable claim: that the state habeas court’s

fact-finding procedure — resolving a credibility dispute on the basis of dueling

affidavits, without an evidentiary hearing — was so inadequate as to render its

factual determinations “unreasonable” under § 2254(d)(2), stripping them of

AEDPA deference and opening the door for de novo review and habeas relief.

      We begin with the observation that there does not appear to be any binding

Supreme Court or Eleventh Circuit precedent on whether § 2254(d)(2) deference is

conditioned on a state court having held an evidentiary hearing in these

circumstances. More broadly, the Supreme Court seems to have foreclosed a per

se rule that a state court must conduct an evidentiary hearing to resolve every

disputed factual question. In Schriro v. Landrigan, the state court had found,

without holding an evidentiary hearing, that the habeas petitioner had instructed his

attorney not to provide mitigating evidence at his sentencing hearing. 550 U.S. at

471. The Ninth Circuit, en banc, found this determination to be “unreasonable”

under § 2254(d)(2). Id. at 472. The Supreme Court reversed, holding that the state


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court’s factual finding was reasonable under § 2254(d)(2), despite the absence of

an evidentiary hearing. 550 U.S. at 476; see Hibbler v. Benedetti, 693 F.3d 1140,

1147 (9th Cir. 2012). Thus, we conclude that an evidentiary hearing in state court

cannot be a requirement for § 2254(d)(2) deference for all disputed factual issues

in a state court proceeding.

      Nevertheless, we do not foreclose the possibility that a state court’s fact-

finding procedure could be so deficient and wholly unreliable as to result in an

unreasonable determination of the facts under § 2254(d)(2) and to strip its factual

determinations of deference. But we are mindful that, consistent with AEDPA’s

statutory scheme, “this standard is difficult to meet . . . because it was meant to

be.” Richter, 131 S. Ct. at 786.

      As we see it, in this case the state court had plausible reasons to credit the

attorney’s version of the facts over the petitioner’s; taken together, these

considerations render the state court’s determination reasonable. Most notably, the

dueling affidavits in this case bear strikingly different indicia of reliability.

Landers’s affidavits are each less than half a page long. Each follows an identical

structure, as if stamped from the same mold. And each alleges only the barest

factual skeleton needed to support an ineffective assistance claim; there are no

details at all. A court could reasonably find that the Landers affidavits do not have

the ring of credulity.


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      Attorney Mays’s affidavit, in sharp contrast, is nearly five full single-spaced

pages long. It describes in great detail the nature and timeline of the plea

negotiation process, in which the prosecutor’s office initially refused to plea

bargain, Mays prepared for trial until a key witness recanted, and the prosecutors

ultimately insisted that any plea include a count of first-degree sodomy. It also

enumerates the factors that pointed in favor of going to trial and those that

counseled in favor of a plea. Mays recounts explaining to Landers that “if the state

would not dismiss the Sodomy I counts or reduce them to Sex Abuse I” then

Landers “would serve 85% of the sentence,” and describes the prosecutor’s

unwillingness to drop a charge of first-degree sodomy. The affidavit details three

different specific occasions when Mays explained to Landers that Alabama’s 85%

Rule would apply to any first-degree sodomy conviction: first, after seeing the

indictment; then, after Mays’s first meeting with representatives from the Alabama

Attorney General’s office; and, finally, after receiving an initial plea bargain offer

approximately one month before trial. Indeed, Mays summarizes that he told

Landers “a minimum of [twenty] times during [his] representation” that a first-

degree sodomy conviction “required the defendant to serve 85% of his sentence.”

Faced with these affidavits of notably differing credibility, the state judge had

reasonable grounds for choosing one over the others. See Strong v. Johnson, 495

F.3d 134, 139 (4th Cir. 2007) (“Choosing between conflicting affidavits without a


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hearing may be reasonable when one affidavit is . . . conclusory . . . and the other

affidavit sets out a detailed account of events.”). Further, the state habeas judge

had also presided over the underlying conviction, and was, as he expressly noted,

personally familiar with the quality and care of the lawyer in the proceedings at

issue.

         On this record, we cannot say that making a credibility determination on the

basis of these affidavits in this case was objectively unreasonable. The evidence in

this case is a far cry from being “too powerful to conclude anything but [the

petitioner’s factual claim],” Miller-El II, 545 U.S. at 265, nor is the state court’s

finding close to “clearly erroneous,” Wiggins, 539 U.S. at 529.

         Our conclusion that the state court’s factual determination was not

unreasonable is bolstered by the apparent disagreement among our sister circuits

on the extent to which § 2254(d)’s deference is conditioned, if at all, on the state

court’s fact-finding procedures, and whether procedures like those used in

Alabama’s courts in this case result in factual determinations that satisfy §

2254(d)(2)’s standard. Compare Earp v. Ornoski, 431 F.3d 1158, 1168-70 (9th

Cir. 2005) (holding that a state court’s rejection of petitioner’s habeas claim was

unreasonable under § 2254(d)(2) where the court made credibility determinations

on the basis of a paper record, without an evidentiary hearing), and Taylor v.

Maddox, 366 F.3d 992, 1001 (9th Cir. 2004) (describing cases that satisfy


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§ 2254(d)(2) “where . . . the fact-finding process itself is defective,” and stating

that “[i]f . . . a state court makes evidentiary findings without holding a hearing and

giving petitioner an opportunity to present evidence, such findings clearly result in

an ‘unreasonable determination’ of the facts”), with Strong, 495 F.3d at 139-41

(applying § 2254(d) deference to and affirming a state court’s denial of a habeas

petitioner’s ineffective assistance of counsel claim where the state court resolved a

credibility dispute between the petitioner and the lawyer on the basis of dueling

affidavits, without an evidentiary hearing), and Valdez, 274 F.3d at 951 (“[A] full

and fair hearing [in state court] is not a precondition to . . . applying § 2254(d)’s

standards of review.”). Given these disparate outcomes across the circuit courts of

appeals, it is apparent that this question is not “beyond any possibility for

fairminded disagreement.” Richter, 131 S. Ct. at 787. In the face of the plausible

bases for the state court’s fact-finding here and this disagreement among

fairminded jurists, we cannot say that the state court’s determination in this case

was unreasonable within the meaning of § 2254(d).

      Thus, we agree with the district court that the petitioner has not met his

considerable burden under § 2254(d)(2). As a result, the petitioner can neither

attain habeas relief nor an evidentiary hearing.

      AFFIRMED.




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