                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              MAR 06, 2007
                               No. 06-13158                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                     D. C. Docket No. 05-22922-CV-FAM

CURRY HAWKINS,



                                                           Petitioner-Appellant,

                                    versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                          Respondent-Appellee.


                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                               (March 6, 2007)

Before DUBINA, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Appellant Curry Hawkins, a Florida prisoner proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. Hawkins

argues that the victim and an eyewitness picked Hawkins’s photograph out of an

overly suggestive out-of-court photo lineup. The lead detective in the case told the

victim afterwards that the witness had chosen the same photograph that the victim

chose. Hawkins’s trial transpired over three-and-one-half years after the crime,

and both the victim and the witness identified Hawkins as the assailant at the trial.

Hawkins contends that his trial counsel was ineffective for failing to file a motion

to suppress both the out-of-court and in-court identifications by the victim and

eyewitness. Trial counsel’s failure to file a motion to suppress prejudiced

Hawkins’s defense because the only evidence linking him to the crime was allowed

in at trial.

        We review a district court’s grant or denial of a § 2254 petition de novo,

while we review the court’s factual findings for clear error. Nyland v. Moore, 216

F.3d 1264, 1266 (11th Cir. 2000). Mixed questions of law and fact, including

ineffective assistance of counsel claims, are also reviewed de novo. Sims v.

Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998).

        Where a claim was adjudicated on the merits in state court, federal courts

shall not grant habeas relief unless the adjudication of the claim:

        (1) resulted in a decision that was contrary to, or involved an
        unreasonable application of, clearly established Federal law, as

                                           2
      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). As separate bases for reviewing state court decisions,

      [a] state court decision is “contrary to” clearly established federal law
      if either (1) the state court applied a rule that contradicts the governing
      law set forth by Supreme Court case law, or (2) when faced with
      materially indistinguishable facts, the state court arrived at a result
      different from that reached in a Supreme Court case. . . . A state court
      conducts an “unreasonable application” of clearly established federal
      law if it identifies the correct legal rule from Supreme Court case law
      but unreasonably applies that rule to the facts of the petitioner’s case.
      An unreasonable application may also occur if a state court
      unreasonably extends, or unreasonably declines to extend, a legal
      principle from Supreme Court case law to a new context. Notably, an
      “unreasonable application” is an “objectively unreasonable”
      application.

Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (citations omitted). A state

court’s findings of fact “shall be presumed to be correct” and “[t]he applicant shall

have the burden of rebutting the presumption of correctness by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1).

      When a convicted defendant claims that his counsel’s assistance was

ineffective, the defendant 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, 104 S. Ct. 2052, 2064 (1984). “For performance



                                           3
to be deficient, it must be established that, in light of all the circumstances,

counsel’s performance was outside the wide range of professional competence.”

Putman, 268 F.3d at 1243. 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.” Strickland, 466 U.S. at

694, 104 S. Ct. 2068.

      Reviewing courts must be highly deferential in reviewing a counsel’s

performance and must utilize the strong presumption that counsel’s performance

was reasonable. Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000)

(en banc). “[B]ecause counsel’s conduct is presumed reasonable, for a petitioner

to show that the conduct was unreasonable, a petitioner must establish that no

competent counsel would have taken the action that his counsel did take.” Id. at

1315. The presumption of reasonable conduct is even stronger when reviewing an

experienced trial counsel’s performance. Id. at 1316. “[T]he defendant must

overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689, 104 S. Ct.

at 2065 (citation omitted).

      “The reasonableness of a counsel’s performance is an objective inquiry.”

Chandler, 218 F.3d at 1315. The test for reasonableness has nothing to do with



                                            4
what the best lawyers would have done or even what most good lawyers would

have done. Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). Instead, the

proper inquiry is “whether some reasonable lawyer at the trial could have acted, in

the circumstances, as defense counsel acted at trial.” White v. Singletary, 972 F.2d

1218, 1220 (11th Cir. 1992). “We are not interested in grading lawyers’

performances; we are interested in whether the adversarial process at trial, in fact,

worked adequately. Id. at 1221. The reasonableness of the defense counsel’s

performance is evaluated from counsel’s perspective at the time. Strickland, 466

U.S. at 689, 104 S. Ct. 2065. Further, because counsel’s performance is measured

against an objective standard, the fact that trial counsel admits at a post-conviction

hearing that his trial performance was deficient matters little. Chandler, 218 F.3d

at 1316, n.16.

      The improper use of photographs by police may reduce the trustworthiness

of a subsequent lineup or courtroom identification. Simmons v. United States, 390

U.S. 377, 383-84, 88 S. Ct. 967, 971 (1968). “The danger that use of the technique

may result in convictions based on misidentification may be substantially lessened

by a course of cross-examination at trial which exposes to the jury the method’s

potential for error.” Id. at 384, 88 S. Ct. at 971. “[E]ach case must be considered

on its own facts, and . . . convictions based on eyewitness identification at trial



                                           5
following a pretrial identification by photograph will be set aside on that ground

only if the photograph identification procedure was so impermissibly suggestive as

to give rise to a very substantial likelihood of irreparable misidentification.” Id.

“Where suggestive pretrial confrontations may have created a substantial

likelihood of irreparable misidentification at trial, the core question is whether

under the totality of the circumstances, the in-court identification was reliable.”

Jones v. Newsome, 846 F.2d 62, 64 (11th Cir. 1988). The following factors should

be considered in making that determination: (1) whether the witness had the

opportunity to view the criminal at the time of the crime; (2) the degree of attention

by the witness; (3) the accuracy of the witness’s prior description; (4) the level of

certainty displayed by the witness; and (5) the length of time between the crime

and the identification. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382

(1972). “While the ultimate conclusion as to the reliability of identification

evidence is a mixed question of law and fact not governed by the Section 2254(d)

presumption, each of the Neil v. Biggers factors is considered an issue of fact

governed by the presumption.” Jones, 846 F.2d at 64.

      Here, we conclude from the record that the state court’s decision was not

contrary to clearly established law. First, although the state court did not mention

it by name, it correctly analyzed the case under Strickland as the controlling law



                                           6
governing ineffective assistance of counsel claims. Further, Hawkins does not

argue, and the record does not suggest, that the facts of this case are materially

indistinguishable from the facts in Strickland.

      Moreover, the state court’s decision, that Hawkins’s counsel was not

deficient, did not involve an unreasonable application of clearly established law,

nor was it objectively unreasonable. Although he believed the out-of-court

identifications were overly suggestive and likely inadmissible, counsel also

believed that the in-court identifications were admissible based on the victim’s and

the witness’s independent recollections of the offender at the time of the crime,

and, therefore, counsel determined that it was Hawkins’s best defense to allow the

out-of-court identifications to come in and then attack the procedures used by the

detective. In determining whether counsel’s decision was reasonable, the state

court correctly analyzed whether the in-court identifications would be reliable and

therefore admissible by applying the factors enumerated in Biggers. After

reviewing the pretrial depositions of the victim and the witness, the state court

found, and the record supports, that (1) both witnesses had a “very good

opportunity to view the perpetrator at the time of the crime,” (2) both witnesses

paid close enough attention that they were able to give a detailed description of the

assailant’s physical characteristics and what he was wearing, (3) prior to the photo



                                           7
lineup, both witnesses gave a detailed description to law enforcement, (4) the

witness was “very certain” of his photo identification, and the victim was confident

she could identify the assailant in person, and (5) the identifications were made

within five months of the crime.

      The state court’s findings on each of the Biggers factors are entitled to a

presumption of correctness, and Hawkins has not shown that those findings were

clearly erroneous. In addition, the presumption that counsel’s performance was

reasonable was strong in this case because of counsel’s extensive experience in

criminal trials. Based on the totality of circumstances as found by the state court

and viewed by counsel at the time, it cannot be said that there was a very

substantial likelihood of irreparable misidentification that would have led to the

exclusion of the identification evidence. Therefore, because counsel’s decision to

challenge the identification process was not unreasonable under the circumstances,

Hawkins has not overcome the presumption that the action was sound trial

strategy. Further, because Hawkins did not establish that his counsel was deficient

under the first prong of Strickland, it is unnecessary to address the second prong,

namely, whether his counsel’s conduct prejudiced Hawkins’s defense.

      Based on the foregoing, Hawkins has not met his burden under 28 U.S.C.

§ 2254(d), and, thus, we affirm the district court's judgment denying Hawkins



                                          8
habeas relief.

      AFFIRMED.




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