            Case: 16-16496   Date Filed: 05/23/2018   Page: 1 of 8


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16496
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 3:13-cv-00733-TJC-JRK



ERSKINE L. CURRY,

                                                           Petitioner-Appellant,

                                   versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

                                                        Respondents-Appellees.

                       ________________________

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

                              (May 23, 2018)

Before TJOFLAT, JULIE CARNES and HULL, Circuit Judges.

PER CURIAM:
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                                          I.

      In 2005, Erskine L. Curry was charged with two counts of sexual battery on

a mentally or physically incapacitated person, in violation of Fla. Stat.

§ 794.011(4)(d). Count one involved a woman named M.L., and count two

involved a woman named K.W. The state trial court severed the counts before

trial. The State proceeded first on count two, involving K.W.

      In the jury trial for the count-two offense, held in March 2006, the court

allowed the State to introduce as similar fact evidence the testimony of M.L.

regarding the severed count one. See Fla. Stat. § 90.404(2)(a). The court allowed

the testimony even though a DNA test of clothing worn by M.L. during the alleged

sexual battery—which Curry believed would exculpate him of any crime against

M.L.—was underway but had not concluded. Further, at trial a State witness

named Allen Carnley, who had spent time in jail with Curry, testified that Curry

had asked him to lie to an investigator from the Public Defender’s office by saying

that K.W. smoked crack and had “cried rape before on another guy.” Carnley was

initially a defense witness, called by defense counsel at Curry’s pretrial bond

hearing, but turned adverse after testifying during cross-examination at the bond

hearing that Curry had asked him to lie to the Public Defense investigator. The

jury convicted Curry of the lesser-included offense of sexual battery, and the court




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sentenced him to thirty years in prison. Curry filed an appeal, and a Florida district

court of appeal affirmed per curiam shortly thereafter.

       Curry then moved under Fla. R. Crim. P. 3.853 to obtain DNA testing of

M.L.’s clothing, but the motion was denied after the State responded that testing

was not completed in the M.L. case. Curry also filed for state postconviction relief

from his conviction in the K.W. case under Fla. R. Crim. P. 3.850. He raised, in

relevant part, claims of ineffective assistance of counsel based on counsel’s failure

to get the DNA test results regarding M.L. 1 and failure to investigate and depose

Carnley before trial. The postconviction trial court denied Curry relief and a

Florida district court of appeal affirmed summarily. Next, Curry filed a 28 U.S.C.

§ 2254 petition in the United States District Court for the Middle District of

Florida raising numerous claims, including ineffective-assistance claims similar to

those raised in the state postconviction proceedings.

       The District Court addressed and denied Curry’s numerous claims, and then

granted Curry a certificate of appealability (“COA”) as to two of them:

       1. Whether[,] assuming the claim . . . was neither procedurally barred
          nor addressed by the state court on the merits, Curry’s counsel was




       1
           The state postconviction courts did not address this precise ineffective-assistance claim,
and thus the District Court held that the claim was neither procedurally barred nor addressed on
the merits in state court. The District Court then denied the claim on the merits. This all informs
the first issue in the COA granted by the District Court, quoted infra.
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           constitutionally ineffective with respect to his failure to obtain
           DNA test results in the M.L. case.[2]

       2. Whether Curry’s counsel was constitutionally ineffective by failing
          to investigate witness Allen Carnley before trial, such that the state
          court’s adjudication of [this] claim . . . was contrary to or an
          unreasonable application of Strickland v. Washington, 466 U.S.
          668, 687 (1984), or was based on an unreasonable determination of
          the facts in light of the evidence presented in the state court
          proceeding.

These claims are the subject of Curry’s pro se appeal. 3 We address them in turn,

and ultimately affirm the District Court’s denial of Curry’s § 2254 petition.

                                                II.

       We review the first ineffective-assistance claim posed in the COA de novo.

See Berghuis v. Thompkins, 560 U.S. 370, 390, 130 S. Ct. 2250, 2265 (2010).4 Pro


       2
          We likewise assume this claim was not procedurally barred or addressed on the merits
in state court.
       3
        Curry’s appellate brief lists five arguments, three addressing issues not presented in the
COA. Our review is generally limited to the specific issues set out in the COA. Murray v.
United States, 145 F.3d 1249, 1250–51 (11th Cir. 1998). Further, this Court issued a July 10,
2017 order denying Curry’s motion to expand the COA, and then on February 12, 2018 denied
Curry’s motion for reconsideration of the July 10 order. We thus consider only the two issues in
the COA.
        We also note that Curry has tied into his first ineffective-assistance claim—regarding
counsel’s failure to obtain DNA test results in the M.L. case—an argument that counsel was
ineffective in allowing the State to engage in Brady and Giglio violations. See Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); Giglio v. United States, 405 U.S. 150, 92 S. Ct.
763 (1972). The state postconviction courts found no Brady or Giglio violation, and the District
Court recognized this and tailored the COA to preclude any Brady or Giglio aspects.
Accordingly, we do not reach any Brady or Giglio issues.
       4
        As stated in note 2, supra, we assume that this claim was not addressed by the state
courts. We therefore do not apply 28 U.S.C. § 2254(d)’s harsher standard of review. Cf.
Berghuis, 560 U.S. at 390, 130 S. Ct. at 2265 (“Courts can . . . deny writs of habeas corpus under
§ 2254 by engaging in de novo review when it is unclear whether [§ 2254(d)] deference applies,
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se pleadings are liberally construed. Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998).

       To succeed on an ineffective-assistance claim under Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), the petitioner must

show that (1) counsel was deficient (2) to the level that it prejudiced the defense.

To be found deficient, counsel must have “made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. There is a strong presumption that counsel’s conduct fell within

a range of reasonable professional assistance. Id. at 689, 104 S. Ct. 2065.

Prejudice is shown when there is a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id.

at 694, 104 S. Ct. at 2068.

       Here, Curry argues that trial counsel was ineffective in failing to obtain

DNA test results in the M.L. case. Counsel, however, asked for the DNA test

results prior to trial; the test was incomplete. Then, at trial, he used their absence

strategically, arguing that there was no physical evidence that any sexual activity

between Curry and M.L. took place. Counsel’s actions constituted reasonable

professional assistance. Moreover, even if the DNA test had been completed and

revealed none of Curry’s DNA—or revealed the DNA of someone other than

because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is
rejected on de novo review.”).
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Curry—on M.L.’s clothing, this would not with reasonable probability have led to

his exoneration of the alleged sexual battery committed against K.W. 5 The District

Court did not err in denying Curry’s ineffective-assistance claim related to the

unobtained DNA test results.

                                              III.

       Curry next argues that trial counsel was ineffective in failing to investigate

Carnley after he gave adverse testimony at Curry’s pretrial bond hearing. Had

counsel done so, Curry avers, counsel would have gotten a better sense of what

Carnley would testify to at trial and would have been able to impeach various

aspects of Carnley’s testimony. The state postconviction courts denied this claim

on the merits, and the District Court held that the state courts did not unreasonably

apply Strickland.

       The Antiterrorism and Effective Death Penalty Act of 1996 provides that,

after a state court has adjudicated a claim on its merits, a federal court may grant

habeas relief only if the state court’s decision was: (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States”; or (2) “based on an unreasonable

determination of the facts in light of the evidence presented in the State court

       5
        M.L. was only a fact witness at the trial involving K.W. Further, M.L. testified that
Curry wore a condom when he sexually battered her, which could reasonably explain a lack of
his DNA. Finally, Curry did not specify when the police obtained M.L.’s clothes, or explain
where the clothes had been prior to or after the alleged sexual battery.
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proceeding.” 28 U.S.C. § 2254(d). Curry’s argument falls under § 2254(d)’s first

prong: the state courts’ decisions were contrary to, or involved an unreasonable

application of, Strickland, which the District Court failed to recognize.

      Section 2254(d)’s “highly deferential standard . . . demands that state-court

decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170,

181, 131 S. Ct. 1388, 1398 (2011) (quotation omitted). Moreover, judicial review

of a Strickland claim is “doubly deferential” when, as here, a federal court reviews

a petition from a state-court decision. Knowles v. Mirzayance, 556 U.S. 111, 123,

129 S. Ct. 1411, 1420 (2009). The pertinent inquiry under § 2254(d) becomes

“whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770, 788

(2011).

      Counsel has a duty to make reasonable investigations. Strickland, 466 U.S.

at 691, 104 S. Ct. at 2066. However, this duty is not absolute and counsel is not

required to investigate specific facts and lines of defense. Everett v. Sec’y, Fla.

Dep’t of Corr., 779 F.3d. 1212, 1249–50 (11th Cir. 2015). “The evaluation of

whether an attorney has adequately conducted pre-trial investigation is complex,

depending upon such factors as the number of issues in the case, the relative

complexity of those issues, the strength of the government’s case, and the overall

strategy of trial counsel.” Mulligan v. Kemp, 771 F.2d 1436, 1440–41 (11th Cir.


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1985) (quotation omitted). This assessment is heavily deferential to counsel’s

judgment. See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066.

       Here, counsel testified at an evidentiary hearing that Carnley’s bond-hearing

testimony sufficed for purposes of counsel’s trial strategy, and added that he

believed further investigation of Carnley might help the State develop its theory

that Curry was asking witnesses to lie. It was reasonable for the state

postconviction courts to credit as reasonable counsel’s strategic decision to eschew

further investigation of Carnley. The state postconviction courts therefore did not

unreasonably apply Strickland, which the District Court properly recognized.

                                              IV.

       For the foregoing reasons, we affirm the District Court’s denial of Curry’s

§ 2254 petition. 6

       AFFIRMED.




       6
        Curry also filed a letter with this Court on March 26, 2018, which was construed as a
renewed motion for reconsideration of this Court’s July 10, 2017 order denying his motion to
expand the COA. See supra note 3. That motion is DENIED.
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