             Case: 13-14680    Date Filed: 01/05/2015   Page: 1 of 7


                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-14680
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket Nos. 1:12-cv-03676-TCB,
                          1:09-cr-00105-TCB-GGB-1

SHAUN LEE THOMAS,

                                                             Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                          ________________________

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

                                (January 5, 2015)

Before MARCUS, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Shaun Lee Thomas, a federal prisoner, appeals the district court’s denial of

his 28 U.S.C. § 2255 motion to vacate sentence, alleging that his trial counsel
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provided ineffective assistance because: (1) they failed to object to a witness’s

testimony, which improperly bolstered the credibility of the victim; and (2) they

failed to call two defense witnesses. After careful review, we affirm.

      In a § 2255 proceeding, we review a district court’s legal conclusions de

novo and factual findings for clear error. Devine v. United States, 520 F.3d 1286,

1287 (11th Cir. 2008). We review de novo a claim of ineffective assistance of

counsel, which is a mixed question of law and fact. Payne v. United States, 566

F.3d 1276, 1277 (11th Cir. 2009). A district court’s denial of an evidentiary

hearing is reviewed for abuse of discretion. Winthrop-Redin v. United States, 767

F.3d 1210, 1215 (11th Cir. 2014). Under § 2255, “[a] petitioner is entitled to an

evidentiary hearing if he alleges facts that, if true, would entitle him to relief.” Id.

at 1216 (quotation omitted). However, an evidentiary hearing is not required if the

allegations are “patently frivolous, based upon unsupported generalizations, or

affirmatively contradicted by the record.” Id. (quotations omitted).

      To establish ineffective assistance of counsel, a movant must show that: (1)

counsel’s performance was deficient; and (2) the deficient performance prejudiced

the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first

prong, the movant must demonstrate that counsel’s performance was unreasonable

under prevailing professional norms.        Id. at 688.    Our review of counsel’s

performance is highly deferential, and we apply a “strong presumption” that


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counsel’s performance was reasonable and that all significant decisions were made

in the exercise of reasonable professional judgment. Chandler v. United States,

218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). We conduct an objective inquiry

into the reasonableness of counsel’s performance, such that “a petitioner must

establish that no competent counsel would have taken the action that his counsel

did take.” Id. at 1315. “[S]trategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable.”

Strickland, 466 U.S. at 690.

      A movant may satisfy the prejudice prong of the Strickland test by showing

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

the proceeding would have been different.           A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. at 694. The

Supreme Court has elaborated that “[t]he likelihood of a different result must be

substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, ___, 131

S.Ct. 770, 792 (2011). The defendant must affirmatively prove prejudice because

attorney errors are as likely to be “utterly harmless” as they are to be prejudicial.

Gilreath v. Head, 234 F.3d 547, 551 (11th Cir. 2000) (quotation omitted).

      A defendant is guilty of aggravated sexual abuse of a child under 12 if he

“crosses a State line with intent to engage in a sexual act with a person who has not

attained the age of 12 years, or [while] in the special maritime and territorial


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jurisdiction of the United States . . . knowingly engages in a sexual act with

another person who has not attained the age of 12 years.” 18 U.S.C. § 2241(c).

      In Snowden v. Singletary, a 28 U.S.C. § 2254 case, we held that an expert

witness’s testimony bolstering the credibility of the victim was improper and

denied the petitioner due process. 135 F.3d 732, 737–38 (11th Cir. 1998). There,

the expert had testified that 99.5% of children tell the truth and that he, in his own

experience with children, had not encountered an instance where a child had

invented a lie about abuse.     Id. at 737.    We determined that the credibility-

bolstering testimony constituted a denial of fundamental fairness because the case

was based almost entirely upon the testimony of the victim and two other children,

without any significant physical evidence, and the prosecutor relied heavily upon

the credibility testimony in closing argument. Id. at 738.

      However, in Dorsey v. Chapman, involving another § 2254 petition, we

denied relief despite the witness’s improper credibility-bolstering testimony. 262

F.3d 1181, 1186 (11th Cir. 2001). In that case, we held that the testimony was

improper, but that the petitioner failed to demonstrate prejudice because trial

counsel used the credibility testimony to discredit the state’s expert witness, and

the state presented other evidence that supported the conviction. Id.

      Here, Thomas has failed to meet his burden of showing that trial counsel

provided ineffective assistance by failing to object to the testimony of defense


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witness Karen Delano, when she observed on redirect examination that the victim

appeared to be credible. To begin with, Thomas has not overcome the “strong

presumption” that counsel’s performance was reasonable. As the record shows,

trial counsel previously had successively objected to another witness’s credibility-

bolstering testimony on the basis that it was improper, and obtained a jury

instruction that only the jury could determine the credibility of witnesses. Further,

trial counsel used Delano’s observation that she found the victim credible to elicit

testimony from Delano that the victim’s prior viewing of pornographic film covers

at her grandfather’s house “could explain some things.” Trial counsel then argued,

in closing, that the victim was not credible, relying in part on that testimony. As a

result, counsels’ decision not to object to Delano’s testimony appears to be a

reasonable, strategic choice made in the exercise of their professional judgment.

      As for Thomas’s claim that we must conclude that trial counsels’ reason for

failing to object was not reasonable or strategic, since the district court did not hold

an evidentiary hearing, we disagree. The test is whether counsels’ representation

fell below an objective standard of reasonableness, not whether counsel could

provide some explanation for their actions. Cf. Strickland, 466 U.S. at 687-88;

Chandler, 218 F.3d at 1315. Because the record establishes that counsels’ decision

not to object was objectively reasonable, an evidentiary hearing was unnecessary.

Winthrop-Redin, 767 F.3d at 1216. And, in any event, even if counsel performed


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deficiently by failing to object to the credibility-bolstering testimony, Thomas did

not demonstrate that his defense was prejudiced by that failure because the

government presented strong evidence of his guilt. See Strickland, 466 U.S. at

694; Harrington, 131 S.Ct. at 792; Gilreath, 234 F.3d at 551.

      We also reject Thomas’s claim that trial counsel’s failure to call two defense

witnesses amounted to ineffective assistance of counsel. We’ve said that “[w]hich

witnesses, if any, to call, and when to call them, is the epitome of a strategic

decision, and it is one that we will seldom, if ever, second guess.” Waters v.

Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) (en banc). Nevertheless, the failure

to call an exculpatory witness is more likely to be prejudicial when the conviction

is based on little evidence of guilt. Fortenberry v. Haley, 297 F.3d 1213, 1228-29

(11th Cir. 2002) (concluding that there was no prejudice because the jury had

strong evidence of the § 2254 petitioner’s guilt).        The movant cannot show

prejudice if the omitted evidence is aggravating, cumulative, or incompatible with

the defense strategy. See Rhode v. Hall, 582 F.3d 1273, 1287 (11th Cir. 2009).

      Here, Thomas has failed to show that his trial counsel were ineffective for

failing to call his aunt, Delighter Baker, and his cousin, D’Neille Ellis, as

witnesses. He claims that their testimonies would have called into doubt the

physical evidence -- the child-sized underwear that his girlfriend at the time of the

offense, Nykia Cheeks, found in his luggage and provided to the government.


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Specifically, he says that Baker and Ellis would have said that Cheeks told them

that she knowingly provided investigators from the Federal Bureau of

Investigations (“FBI”) with underwear that she knew was unrelated to the

allegations against him because the government threatened to take away her

children if she did not do so. However, as the record reveals, Cheeks herself

testified that she was not sure whether the underwear that she gave the FBI was the

same underwear that she found in Thomas’s luggage. Moreover, an FBI agent

testified that investigators did not find Thomas’s or the victim’s DNA on the

underwear.    Most importantly, Baker’s and Ellis’s testimonies about which

underwear Cheeks gave the FBI were not exculpatory or relevant because they

would have had no impeaching effect on the testimonies of Cheeks or her daughter

that they found the underwear in Thomas’s luggage, and that Thomas admitted that

the underwear belonged to the victim. Thus, Thomas did not demonstrate that trial

counsel was ineffective for failing to present non-exculpatory testimony by Baker

and Ellis.

      AFFIRMED.




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