                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                  FILED
                                                           U.S. COURT OF APPEALS
                                No. 07-15682                 ELEVENTH CIRCUIT
                            Non-Argument Calendar              November 17, 2008
                          ________________________            THOMAS K. KAHN
                                                                   CLERK
                    D. C. Docket No. 05-02034-CV-JFG-NW

COREY L. LEE,

                                                              Petitioner-Appellant,

                                      versus

GRANT CULLIVER,
ATTORNEY GENERAL OF THE
STATE OF ALABAMA, THE,
                                                           Respondents-Appellees.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                         _________________________
                               (November 17, 2008)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Corey Lee, a state prisoner acting pro se, appeals the district court’s denial

of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging

a 2002 conviction and life sentence for burglary and attempted murder. We granted
a certificate of appealability on the issue of “[w]hether the district court properly

concluded that Lee was not denied the right to testify on his own behalf at his

criminal trial.” After thorough review, we affirm.

      We review the district court’s denial of a § 2254 petition de novo but we are

“highly deferential” to the state court’s decision. Davis v. Jones, 506 F.3d 1325,

1331 (11th Cir. 2007). Pursuant to § 2254(d), federal courts may only grant habeas

relief on claims previously adjudicated in state court, as in this case, if 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 (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 summary rejection

of a claim, without discussion, qualifies as an adjudication on the merits under

§ 2254(d) and, thus, warrants deference. Wright v. Sec’y for Dep’t of Corr., 278

F.3d 1245, 1253-54 (11th Cir. 2002).

      A criminal defendant has a fundamental constitutional right to testify on his

own behalf at trial, and this right cannot be waived by defense counsel. Gallego v.

United States, 174 F.3d 1196, 1197 (11th Cir. 1999). “A claim of ineffective

assistance of counsel is the proper framework to analyze defendant’s allegation



                                          2
that his attorney has violated his right to testify.” Id. To demonstrate ineffective

assistance of counsel, a defendant must prove that (1) counsel’s performance was

deficient, and (2) the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984). To prove the deficient performance prong

of the Strickland test, the defendant must show that counsel made errors so serious

that he was not functioning as the counsel guaranteed by the Sixth Amendment.

Id. Under 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 694. But “there is no reason for a

court deciding an ineffective assistance claim to approach the inquiry in the same

order or even to address both components of the inquiry if the defendant makes an

insufficient showing on one. In particular, a court need not determine whether

counsel’s performance was deficient before examining the prejudice suffered by

the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697.

      We need not address whether Lee’s counsel was deficient for failing to call

Lee to testify, because Lee cannot show that he was prejudiced under Strickland.

See id.; see also Trotter v. Sec’y, Dep’t of Corr., 535 F.3d 1286, __ (11th Cir.

2008) (recognizing that we may affirm on any ground supported by the record).

As the record shows, the evidence in support of Lee’s attempted murder conviction



                                           3
included testimony from the victim, Harvey Summerhill, who was the new

boyfriend of Lee’s ex-girlfriend, Felicia Moore, and who testified that Lee had

approached him one morning on his way to work and shot him. Summerhill said

that right before he was shot, he saw Lee in the light and knew “exactly” who he

was. In addition, police officer Brad Regan, a former classmate of Summerhill’s

and Moore’s, testified against Lee. Regan said that he had been on patrol near a

party that Summerhill and Moore attended two days after the shooting, and was

summoned into the party to listen in on a phone call that Moore had received.

Regan heard Moore say, “so what are you saying?”; the voice on the other end say

“you better step back”; Moore say “so what are you saying, if I don’t you will kill

me, too?”; and the voice say, “step back or I will take you, too.” Having noted

from the caller ID that the call had come from Eliza Coffee Memorial in Florence,

Alabama, Regan then contacted the Florence police department, a Florence officer

went to the coffee shop, found Lee there, and picked him up.

      Moore also testified about the phone call, which she knew came from Lee

because she recognized his voice, and gave a similar account of the statements

made to her. Specifically, Moore testified that during the call, Lee repeatedly told

her to stay away from Summerhill, she kept asking Lee why he was “doing this,”

and Lee told her to “get away” from Summerhill or Lee would “get [her], too.”



                                         4
      In Lee’s defense, his new girlfriend, Renae Hollingsworth, testified that he

was with her at the time of the shooting; and Moore’s mother testified that

Summerhill had told her that he thought it was a drunk or drug user who had shot

him, but that he was going to say it was Lee. Lee asserts on habeas that had he

testified, he would have corroborated that he did not shoot Summerhill because he

was at Hollingsworth’s residence at the time of the shooting.

      While this is a close case, we cannot say that it is as close as Nichols v.

Butler, 953 F.2d 1550 (11th Cir. 1992) (en banc), where the Court held that a

petitioner -- who had been coerced by trial counsel into remaining silent and not

testifying at trial -- had been prejudiced under Strickland. There, the only evidence

that the petitioner was the person involved in the crime for which he was convicted

was eyewitness identification of him by one store employee who had glimpsed him

only briefly. Id. at 1554. In the circumstances of that “very close case,” where

only the store employee’s perception supported the petitioner’s conviction, the

Court thus concluded that the petitioner should have been allowed to testify to his

version of events. Id.

      Here, by contrast, there was unwavering eyewitness testimony from the

victim, who knew and recognized Lee as the shooter. In addition, two different

witnesses -- both Moore and a police officer -- testified that they independently



                                          5
heard Lee threaten Moore that he would “get” her “too,” plainly suggesting that

Lee had admitted to Summerhill’s shooting. On this record, we are compelled to

conclude that there is no reasonable probability that the results of the trial would

have been different had Lee testified in his own defense.1 Since Lee’s claim of

prejudice is unsupported on the face of the record, we further conclude that no

evidentiary hearing was required in the district court. See Tejada v. Dugger, 941

F.2d 1551, 1559 (11th Cir. 1991) (no hearing is required if allegations fail to state

a claim when viewed against the record). Thus, the state court’s application of

Strickland was not unreasonable, and we affirm the district court’s denial of Lee’s

§ 2254 petition.

       AFFIRMED.




       1
          The evidence supporting Lee’s burglary conviction was similarly strong, and as a result,
we cannot say that there is a reasonable probability that the results of the trial would have been
different had Lee testified that he lived with Moore at the time of the burglary. While Moore’s
mother testified in Lee’s defense that Lee had a key to the apartment and that she had witnessed
Moore sign an affidavit providing that Lee had lived with her at the time of the burglary, Moore
herself testified that Lee had broken into the apartment and did not reside with her, and
explained that her mother had given her the affidavit to sign, that it was untrue, and that she had
signed it because she wanted the burglary charge to “go away” so that she would not have to go
through two separate trials. Moreover, Summerhill testified that he saw Lee break into the
apartment and strike her. And finally, a police officer testified that on the night of the burglary,
he had searched the apartment for men’s clothes and shoes to determine if Lee lived there, and
found no signs of a man living there.

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