           Case: 15-14041   Date Filed: 02/27/2017   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-14041
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 4:12-cv-00457-RH-CAS



MATTHEW JOHNSON,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee,

KENNETH TUCKER, et al.,

                                                                    Respondents.

                      ________________________

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

                            (February 27, 2017)
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Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Proceeding pro se, Matthew Johnson, a Florida prisoner serving a 30-year

sentence for lewd or lascivious molestation of a child less than 12 years of age,

appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of

habeas corpus. The district court granted a certificate of appealability on two

issues: (1) whether Johnson’s trial attorneys “rendered ineffective assistance by

failing to present testimony of the alleged victim’s [brother] (who the alleged

victim said was in the room at the time of the offense) that he did not see the

offense”; and (2) whether his attorneys “rendered ineffective assistance by failing

to present documentary evidence supporting the argument that the petitioner was in

custody at the time of the offense.” After a careful review of the record and

consideration of the parties’ briefs, we affirm.

                                          I.

      We review de novo a district court’s denial of a § 2254 habeas corpus

petition. Bester v. Warden, 836 F.3d 1331, 1336 (11th Cir. 2016). We liberally

construe the filings of pro se litigants. Winthrop-Redin v. United States, 767 F.3d

1210, 1215 (11th Cir. 2014).

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), federal courts cannot grant habeas relief on a claim adjudicated on the


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merits in state court unless the state court’s decision (1) “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court” or (2) “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).

      Johnson does not contend that the state court’s decision was based on an

unreasonable determination of the facts. Rather, his argument is that the state court

unreasonably applied clearly established federal law, specifically Strickland v.

Washington, 466 U.S. 668 (1984). Under the “unreasonable application” prong,

relief is appropriate only if the state court’s application of clearly established

federal law is “objectively unreasonable,” not simply incorrect. Bell v. Cone, 535

U.S. 685, 694 (2002).

      To establish a claim of ineffective assistance of counsel under Strickland,

Johnson must show both that “counsel’s performance was deficient and that the

deficient performance prejudiced the defense.” Bester, 836 F.3d at 1337; see

Strickland, 466 U.S. at 687–88.       “Because the failure to demonstrate either

deficient performance or prejudice is dispositive of the claim against the

petitioner,” we may consider the prongs in either order and need not address both.

Windom v. Sec’y, Dep’t of Corr., 578 F.3d 1227, 1248 (11th Cir. 2009).




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      For counsel’s performance to be constitutionally deficient, it must fall

“below an objective standard of reasonableness.” Harrington v. Richter, 562 U.S.

86, 104 (2011) (quoting Strickland, 466 U.S. at 688).            Review of counsel’s

performance is highly deferential, and it is presumed that counsel’s conduct fell

within the range of reasonable professional assistance. Johnson v. Sec’y, Dep’t of

Corr., 643 F.3d 907, 928 (11th Cir. 2011). To overcome that presumption, the

petitioner “must show that no competent counsel would have taken the action that

his counsel did take.” Id. (internal quotation marks omitted).

      To establish prejudice, “a challenger must demonstrate ‘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.’” Harrington, 562 U.S. at 104

(quoting Strickland, 466 U.S. at 694). The likelihood of a different result must be

substantial, not just conceivable. Id.

      When the deferential standards created by Strickland and § 2254(d) apply in

tandem, our review is “doubly” deferential as to the performance prong. Id. at 105.

When both apply, “the question is not whether counsel’s actions were reasonable.

The question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Id. Because of this double deference, it will be

a rare case in which an ineffective-assistance claim denied on the merits in state


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court is found to merit relief in a federal habeas proceeding. Gissendaner v.

Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013).

                                             II.

       Johnson first alleges that trial counsel was ineffective for failing to

investigate and present at trial mitigating testimony from the victim’s brother. 1

During trial, the victim testified that her brother and her cousin were also in the

room when Johnson pulled out his penis and had the victim rub it. After Johnson

was convicted, the victim’s brother prepared an affidavit stating that he had never

seen any inappropriate touching occur between Johnson and the victim. Johnson

contends that trial counsel could have used the brother’s testimony to impeach the

victim’s credibility, which he asserts was already in some doubt due to other

inconsistencies in her testimony.

       Here, the state court’s determination that Johnson was not prejudiced by

counsel’s performance is not an unreasonable application of Strickland. As the

state court explained, the brother’s testimony that he did not witness the alleged

offense would not have refuted the victim’s trial testimony because she indicated

only that her brother was in the room, not that he witnessed the offense. “Just

because [the brother] did not see anything, as he avers,” the state court reasoned,


       1
          We decline to address the state’s contention that both of Johnson’s claims are
unexhausted and procedurally defaulted. The district court addressed the claims on the merits,
and Johnson has not shown that he is entitled to relief on the merits, in any event.
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“does not mean that nothing happened.” Because the brother’s testimony did not

actually contradict the victim’s testimony, the state court reasonably determined

that the testimony likely would have had no effect on the result. See Strickland,

466 U.S. at 694. Since the state court’s prejudice determination requires us to deny

habeas relief, we do not address whether counsel’s performance was deficient. See

Windom, 578 F.3d at 1248. Accordingly, the district court properly denied relief

on this claim.

                                             III.

       Next, Johnson argues that trial counsel was ineffective for failing to

introduce records showing that he had been sentenced to six months in county jail

on July 14, 2004. These records, according to Johnson, would have demonstrated

that he “was in jail for a substantial portion of the timeframe that the victim

testified that the acts occurred and limited them to occurring in January 2005, if

they occurred at all.”

       Johnson contends that we may review this claim de novo because the state

court did not address this claim on the merits. A review of the record shows that

this particular claim was not addressed. 2 “When a state court rejects a federal

claim without expressly addressing that claim, a federal habeas court must presume
       2
            That may be because Johnson framed his allegations on this matter as a claim of
prosecutorial misconduct, which the state court addressed, and not ineffective assistance. The
state also notes that Johnson’s theory of why he is entitled to relief based on the records has
shifted over the course of his post-conviction proceedings. Regardless, Johnson has not shown
that he is entitled to relief based on the arguments he presents on appeal.
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that the federal claim was adjudicated on the merits—but that presumption can in

some limited circumstances be rebutted.”        Bester, 836 F.3d at 1336 (quoting

Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013)); see Harrington, 562 U.S. at

99–100 (holding that a state court’s summary, unexplained rejection of a

constitutional issue generally qualifies as an adjudication that is entitled to

deference). The presumption is rebutted when the evidence clearly shows that the

federal claim was “inadvertently overlooked” in state court. Bester, 836 F.3d at

1336. In such a case, federal courts may review the claim de novo. Id. at 1337.

      Here, even assuming without deciding that de novo review applies, Johnson

has not shown that he is entitled to relief. See Berghuis v. Thompkins, 560 U.S.

370, 390 (2010) (stating that courts can “deny writs of habeas corpus under § 2254

by engaging in de novo review when it is unclear whether AEDPA deference

applies”). Johnson has not shown that “counsel’s performance was deficient [or]

that the deficient performance prejudiced the defense.” Bester, 836 F.3d at 1337.

      First, Johnson’s trial counsel was not deficient under Strickland because

counsel’s performance fell within the range of reasonable professional assistance.

Trial counsel presented to the jury the substance of Johnson’s allegations regarding

his time in jail. Specifically, counsel called as a trial witness Johnson’s father, who

testified that Johnson was in jail from January 2003 to September 2003 and then

from July 2004 to November 2004. These periods are consistent with Johnson’s


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own allegations in his state court post-conviction proceedings. 3 Then, in closing

arguments, counsel used that testimony to argue that doubt existed as to whether

Johnson even could have committed the offense against the victim because he was

in jail for substantial portions of the timeframe in which the offense allegedly

occurred. 4 Accordingly, the record shows that trial counsel knew of Johnson’s jail

time, brought it out at trial, and argued that it supported the defense.

       Johnson argues that it was unreasonable for counsel to elicit testimony from

his father instead of introducing the court records because the jury would have

been more likely to disbelieve a relative of the defendant. But that is the kind of

second-guessing of counsel’s actions that we must avoid when conducting our

highly deferential review of counsel’s performance. Chandler v. United States,

218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). And “[e]ven if many reasonable

lawyers would not have done as defense counsel did at trial, no relief can be

granted on ineffectiveness grounds unless it is shown that no reasonable lawyer, in

the circumstances, would have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th

Cir. 1994). Johnson has not made that showing here.

       3
         For example, in Johnson’s April 2009 Rule 3.850 motion in state court, he alleged that
he was released from county jail on November 10, 2004.
       4
          The indictment broadly alleged that the offenses—against multiple victims, not just the
single victim relevant to this appeal—were committed on various occasions between January
2002 and January 2005. Of the four counts charged in the indictment, the district court granted a
judgment of acquittal as to one, and a state appellate court held that judgment of acquittal should
have been granted as to two others. The remaining conviction, which gave rise to these
proceedings, was affirmed.
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      Moreover, Johnson has not shown that he was prejudiced by counsel’s

failure to introduce the court records. Even Johnson does not go so far as to assert

that the records could have proved that he simply did not commit the offense as the

victim testified. Rather, his position is that the records would have narrowed the

timeframe in which the offense could have occurred. But that does little to cast

doubt on whether the crime in fact occurred during the narrower timeframe. In

these circumstances, we do not think that the likelihood of a different result is

“substantial.” See Harrington, 562 U.S. at 104. Accordingly, the district court

properly denied relief on this claim, even under de novo review.

                                        IV.

      For the foregoing reasons, the district court properly denied Johnson’s

petition for a writ of habeas corpus under 28 U.S.C. § 2254.

      AFFIRMED.




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