           Case: 17-14288   Date Filed: 03/13/2019   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14288
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 2:17-cv-00070-RWS



STANLEY JAMES OLIVER,

                                                           Petitioner-Appellant,

                                   versus

GLENN JOHNSON,
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,

                                                       Respondents-Appellees.

                       ________________________

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

                             (March 13, 2019)

Before WILSON, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Stanley Oliver, a Georgia state prisoner serving a total life sentence, appeals

the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. The

district court granted a certificate of appealability (“COA”) on whether Oliver’s

trial counsel was ineffective for opening the door on cross-examination of the

victim to testimony of Oliver’s prior acquittal on similar charges against another

person. We expanded the COA to include the issue of whether his trial counsel

was also ineffective for not requesting a limiting instruction once this testimony

came in. After careful review, we affirm the denial of his § 2254 petition.

                                         I.

      After a jury trial, Oliver was convicted of kidnapping, rape, and aggravated

assault of his former girlfriend, F.W., during March 2008. In the light most

favorable to the verdict, the evidence showed the following. Oliver and F.W. had

split up in February 2008 after Oliver became violent with her, but they

reconnected on March 8 when Oliver came to F.W.’s mother’s house, where F.W.

was staying, and claimed that he wanted to “work things out.” Oliver took F.W. to

his house, where she remained until March 12.

      Between March 8 and 12, Oliver beat F.W. with his fists, a leather strap, and

a fireplace poker; he ripped out some of her hair; he stabbed her in the leg with a

knife; and he threatened to kill her. On her last night in the home, F.W. and Oliver

had sexual intercourse; she testified that she did not want to but “thought that was


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the only way I was gonna get to leave.” F.W. escaped on March 12 while Oliver

was in the bathroom, after seeing her mother’s car in the driveway. F.W. went to a

hospital and received treatment. The sheriff’s deputy who was dispatched to the

hospital testified that F.W. was “contused from head to foot,” with a large patch of

hair having been pulled out of her scalp, a puncture wound in her thigh, and

various lacerations and abrasions over her body. Pictures of her injuries were

entered into evidence. The fire poker, leather strap, and knife were recovered at

Oliver’s house.

      At trial, the state elicited testimony from F.W. about Oliver’s earlier

acquittal on charges of similar crimes against another person. The trial judge

permitted the state to elicit this testimony because Oliver’s trial counsel on cross-

examination had questioned her failure to contact police about Oliver’s alleged

prior violent acts against her in February. The trial judge found that Oliver’s

counsel had opened the door to evidence to explain F.W.’s conduct in the period

leading up to March 8.

      After trial, a different trial judge heard Oliver’s motion for new trial and

granted a new trial on the ground that F.W.’s testimony about Oliver’s earlier

acquittal on similar charges was inadmissible and prejudicial. The new judge

found that Oliver’s counsel had not opened the door to testimony about the prior

charges through his cross-examination of F.W.


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      The state appealed, and the Georgia Court of Appeals reversed. See State v.

Oliver, 755 S.E.2d 2d 293, 296–97 (Ga. Ct. App. 2014). The appellate court found

that the challenged testimony was admissible, even though it implicated Oliver’s

character, because it “was relevant to explain F.W.’s conduct in the period leading

up to March 8, after Oliver’s counsel on cross-examination questioned her failure

to notify law enforcement about Oliver’s prior violent acts against her.” Id. at 297.

      On remand, the trial court considered Oliver’s remaining grounds for a new

trial, including that trial counsel was ineffective in the following two ways:

(1) opening the door to admission of evidence of the prior charges; and (2) failing

to request a limiting instruction on that same evidence. After holding a hearing at

which trial counsel testified, the trial court denied Oliver’s motion for new trial.

      The Georgia Court of Appeals affirmed. See Oliver v. State, 786 S.E.2d

701, 705–07 (Ga. Ct. App. 2016). The appellate court first found that “questioning

F.W. about her prior failure to contact law enforcement was a reasonable strategy,”

as there were “few avenues of defense in this case other than challenging F.W.’s

story by attacking her credibility.” Id. at 706. Moreover, according to the court,

while counsel’s questioning ultimately misfired, “it was not a foregone conclusion

that trial counsel’s questioning was going to result in admission of Oliver’s

acquitted charges.” Id. The court explained that, while it “ultimately ruled that

this opened the door to admission of the prior acquittals, . . . the motion judge’s


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earlier ruling to the contrary indicated that reasonable minds can differ on this

point.” Id.

         Second, the state appellate court found that Oliver was not prejudiced by

trial counsel’s failure to request a limiting instruction once evidence of the prior

charges against him was admitted. Id. at 706–07. The court assumed without

deciding that trial counsel performed deficiently by failing to request the

instruction. Id. at 707. But the court found that the failure was not prejudicial

because the evidence against Oliver was strong, the state did not bring out the

specific facts of the underlying charges, and the evidence concerned an acquittal,

not a conviction. Id.

         After the Georgia Supreme Court denied Oliver’s petition for certiorari,

Oliver filed the instant § 2254 habeas corpus petition pro se in federal district

court.       The district court denied the petition upon a magistrate judge’s

recommendation and then granted a COA as to whether trial counsel rendered

ineffective assistance by opening the door on cross-examination of F.W. to

damaging evidence of Oliver’s prior bad acts. Oliver appealed to this Court, and

we appointed counsel 1 and expanded the COA to include the issue of whether

counsel was ineffective for failing to request a limiting instruction regarding that

same evidence.

         1
          We are grateful to Howard W. Anderson, III, court-appointed counsel, for ably
representing Oliver in this appeal.
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                                        II.

      We review de novo a district court’s denial of a 28 U.S.C. § 2254 petition,

“but we owe deference to the final judgment of the state court.” Reed v. Sec’y,

Fla. Dep’t of Corr., 593 F.3d 1217, 1239 (11th Cir. 2010) (quotation marks

omitted). In particular, under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), federal courts cannot grant habeas relief on claims adjudicated

on the merits in state court 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).

This standard is “highly deferential” and “demands that state-court decisions be

given the benefit of the doubt.”     Renico v. Lett, 559 U.S. 766, 773 (2010)

(quotation marks omitted).

      The “clearly established” law relevant to Oliver’s claims of ineffective

assistance comes from Strickland v. Washington, 466 U.S. 668 (1984). Cullen v.

Pinholster, 563 U.S. 170, 189 (2011). The state-court decision was not “contrary

to” Strickland because the court identified and applied the governing legal

principles from Strickland, and Oliver has not shown that the Supreme Court has

reached a different result when faced with materially indistinguishable facts. See

Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). So our inquiry is whether the

state-court decision involved an “unreasonable application” of Strickland.


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      A state-court decision involves an “unreasonable application” of Supreme

Court precedent if the state court correctly identifies the governing legal principle,

but unreasonably applies that principle to the facts of the petitioner’s case. Evan v.

Sec’y, Dep’t of Corr., 703 F.3d 1316, 1325 (11th Cir. 2013) (en banc). “The

“unreasonable application” clause requires that the state-court decision be more

than simply incorrect or erroneous—it must be “objectively unreasonable.”

Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The standard is, and was meant to be,

difficult to meet. Harrington v. Richter, 562 U.S. 86, 102 (2011). “[E]ven a

strong case for relief does not mean the state court’s contrary conclusion was

unreasonable.” Id. A state prisoner “must show that the state court’s ruling on the

claim being presented in federal court was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement.” Id. at 103.

                                          III.

      To make out a successful claim of ineffective assistance of counsel under

Strickland, a defendant must show both that (1) his counsel’s performance was

deficient and (2) the deficient performance prejudiced his defense. Strickland, 466

U.S. at 687. Failure to establish either prong is fatal and makes it unnecessary to

consider the other. Id. at 697.




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      Counsel’s performance is measured under an objective standard of

reasonableness, and there is a strong presumption that counsel’s conduct falls

within the range of reasonable performance. Id. at 687, 690. When evaluating

counsel’s performance, “every effort must be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at

689. Deficient performance “requires showing that counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Id. To make such a showing, a defendant must demonstrate

that “no competent counsel would have taken the action that his counsel did take.”

Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc).

      Prejudice in this context means a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.”    Strickland, 466 U.S. at 694.   The petitioner must show that the

likelihood of a different result is substantial, not just conceivable. Richter, 562

U.S. at 112.

      “Surmounting Strickland’s high bar is never an easy task,” and AEDPA

raises the bar even higher. Id. at 105. “The standards created by Strickland and §

2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is

‘doubly’ so.” Id. (citations omitted). “When § 2254(b) applies, the question is not


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whether counsel’s actions were reasonable. The question is whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.

                                        A.

      We first consider Oliver’s argument that trial counsel was ineffective for

“unintentionally opening the door” to evidence of prior bad acts. After the trial

court found that counsel had opened the door, F.W. testified that Oliver had been

acquitted on similar charges, that she had overheard some conversation indicating

that Oliver was, in fact, guilty of those charges, and that the acquittal had

influenced her decision not to contact police. The state appellate court found that

counsel’s questioning of F.W. about her prior failure to contact law enforcement

was a “reasonable strategy” because there were “few avenues of defense in this

case other than challenging F.W.’s story by attacking her credibility.” Oliver, 786

S.E.2d at 705–06.

      In Oliver’s view, counsel could and should have handled the matter

differently. He says that counsel, before deciding how to proceed with cross-

examination, should have approached the bench and asked whether questioning

F.W. about why she failed to report the prior violent incident to police would open

the door to questioning about the prior charges. But it’s always true that trial

counsel “could have done something more or something different.” Chandler, 218

F.3d at 1313. And we must evaluate the reasonableness of “the action his counsel


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did take” “from counsel’s perspective at the time,” without “the distorting effects

of hindsight.” Id. (quotation marks omitted).

      Here, the district court was correct to conclude that the state appellate

court’s application of Strickland was reasonable. Because the case against Oliver

hinged largely on F.W.’s credibility, it was reasonable for counsel to question F.W.

about her prior failure to report Oliver’s previous uncharged offenses against her.

This strategy carried risks, but “[i]t was not a foregone conclusion that trial

counsel’s questioning was going to result in admission of Oliver’s acquitted

charges.” Oliver, 786 S.E.2d at 706. As the state court noted, counsel did not

directly question F.W. about the source of her fear of Oliver, and a trial judge

found that counsel’s cross-examination did not open the door to admission of the

prior charges.     While counsel’s cross-examination ultimately misfired, “a

defendant is not guaranteed errorless counsel.” Stanley v. Zant, 697 F.2d 955, 962

(11th Cir. 1983). Viewing “the action [Oliver’s] counsel did take” “from counsel’s

perspective at the time,” Chandler, 218 F.3d at 1313, we conclude that the state

court presented a “reasonable argument that counsel satisfied Strickland’s

deferential standard,” Richter, 562 U.S. at 105. So we defer to the state court’s

resolution of this claim.

                                        B.




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      Oliver’s second argument is that he was prejudiced by trial counsel’s failure

to request a limiting instruction once evidence of the prior charges against him was

admitted.   The state appellate court found that, even assuming counsel was

deficient, the error was not prejudicial because there was not a reasonable

probability of a different outcome had counsel requested the instruction.

      The district court did not err in determining that the state appellate court’s

application of Strickland was reasonable. The state appellate court reasonably

concluded that there was no reasonable probability of a different result because the

“evidence against Oliver was strong.” Oliver, 786 S.E.2d at 707. As the court put

it, this was not a “‘he said, she said’ credibility contest” type of case. Id. at 705.

Rather, this was “a ‘he said, she said, with a lot of physical evidence corroborating

what she said’ case.” Id. As we have indicated, “F.W. presented at the hospital

with bruising all over her body, a large clump of hair missing, and a wound in her

leg, supporting her claim that Oliver had assaulted her, including stabbing her

when she tried to leave his home.” Id. Police also “found at Oliver’s home clumps

of F.W.’s hair, and the items she claimed Oliver had assaulted her with.” Id. Plus,

as the court noted, the state did not bring out the specific facts of the prior charges,

and Oliver was acquitted of the charges, not convicted.

      In light of the physical evidence corroborating many aspects of F.W.’s

testimony and the other factors cited by the state appellate court, Oliver has not


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shown that the state court’s ruling on this claim “was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.” Richter, 562 U.S. at 103. When we

givie the state-court decision the benefit of the doubt, as we must, Renico, 559 U.S.

at 773, the state court’s conclusion that a limiting instruction would not have had a

substantial effect on the jury’s deliberations was reasonable.

      For these reasons, we affirm the denial of Oliver’s § 2254 petition.

      AFFIRMED.




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