           Case: 12-15098   Date Filed: 10/29/2013   Page: 1 of 9


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-15098
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 0:11-cv-62246-UU



JOSEPH STEFFEN,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                       ________________________

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

                            (October 29, 2013)

Before DUBINA, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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      Joseph Steffen, a Florida prisoner, appeals the district court’s denial of his

28 U.S.C. § 2254 petition for writ of habeas corpus challenging his 2003 Florida

convictions for four counts of burglary and three counts of grand theft. The state

court denied Steffen’s amended motion for post-conviction relief, and the state

appellate court affirmed.

      In the federal habeas proceeding, a magistrate judge recommended the

denial of Steffen’s § 2254 petition because, applying Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052 (1984), the magistrate judge concluded that the state

court’s denial of post-conviction relief was neither contrary to nor an unreasonable

application of clearly established federal law or based on an unreasonable

determination of the facts. The district court adopted the magistrate judge’s

recommendation and denied Steffen’s § 2254 petition.

      We granted Steffen a certificate of appealability on the following issue:

“Whether trial counsel was ineffective in failing to argue that Steffen’s statements

to the police should have been suppressed because the Miranda warnings that

Steffen received were inadequate?”

      On appeal, Steffen argues that he was not advised in a “catchall phrase” that

he had the right to use any of the rights outlined in Miranda v. Arizona, 384 U.S.

436, 86 S.Ct. 1602 (1966), at any time during his police interview. Accordingly,

he understood the given Miranda rights to limit the right to have counsel present to


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the time before he made any statement and was not advised that he had the right to

have an attorney present during questioning. Steffen argues that no competent

attorney would have concluded that filing a motion to suppress his statements

would be a meritless endeavor, and that his trial counsel’s failure in this regard was

not the result of an alternate trial strategy. 1

       When reviewing the district court’s denial of a § 2254 petition, we review

“questions of law and mixed questions of law and fact, including ineffective

assistance of counsel claims, de novo, and review findings of fact for clear error.”

Pardo v. Sec’y, Fla. Dep’t of Corr., 587 F.3d 1093, 1098 (11th Cir. 2009).

However, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. No. 104-132, 110 Stat. 1214 (1996), imposes a “highly deferential standard

for evaluating state-court rulings . . . and demands that state-court decisions be

given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855,

1862 (2010) (internal quotations marks omitted). Thus, we review the district

court’s decision de novo, but we review the state court’s decision with deference.

Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1239 (11th Cir. 2010).



       1
         Steffen also contends that, under the doctrine of estoppel, the state should not be
allowed to now argue that Steffen’s trial counsel did not move for suppression based on
inadequate Miranda warnings because of a trial strategy. The state correctly notes that issues of
estoppel are beyond the certified question on appeal. See Murray v. United States, 145 F.3d
1249, 1250-51 (11th Cir. 1998) (holding that “in an appeal brought by an unsuccessful habeas
petitioner, appellate review is limited to the issues specified in the [certificate of
appealability].”). Accordingly, we do not review Steffen’s arguments regarding estoppel.
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      A federal court may not grant a writ of habeas corpus for a state prisoner

where the claim was adjudicated on the merits by a state court unless the state

court’s decision:

      (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)(1), (2); see also Harrington v. Richter, 562 U.S. ___, ___, 131

S.Ct. 770, 784-85 (2011) (holding that the state court decision need not be

accompanied by an explanation or a statement of reasons, so long as the judgment

is on the merits).

      The phrase “clearly established” refers to the holdings of the Supreme

Court’s decisions as of the time of the relevant state court decision. Lockyer v.

Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 1172 (2003). A state court decision

can be contrary to established law in two ways: “(1) it applies a rule contradicting

the governing law as set forth by Supreme Court case law, or (2) the state court, in

a case with facts indistinguishable from those in a decision of the Supreme Court,

arrives at a different result.” Washington v. Crosby, 324 F.3d 1263, 1265 (11th

Cir. 2003). If there is no Supreme Court precedent on point, a state court’s

conclusion cannot be contrary to clearly established federal law as determined by


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the Supreme Court. Id. A state court decision also represents an unreasonable

application of clearly established federal law if the state court correctly identifies

the governing legal rule from Supreme Court cases and unreasonably applies the

established law to the facts of a case. Id. Even if we conclude that the state court

applied federal law incorrectly, relief is only appropriate if that application is also

objectively unreasonable. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850

(2002).

      The Supreme Court decision applicable in an ineffective-assistance-of-

counsel case is Strickland. See Premo v. Moore, 562 U.S. ___, ___, 131 S.Ct. 733,

739 (2011). “The standards created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is doubly so.” Harrington,

562 U.S. at ___, 131 S.Ct. at 788 (internal quotation marks and citations omitted).

To succeed on an ineffective-assistance-of-counsel claim under Strickland, a

petitioner must show that (1) his attorney’s performance was deficient, and (2) the

deficient performance prejudiced his defense. Strickland, 466 U.S. at 687,

104 S.Ct. at 2064. Under § 2254(d), “the question is not whether counsel’s actions

were reasonable [but] whether there is any reasonable argument that counsel

satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at ___, 131 S.Ct.

at 788.




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      With respect to Strickland’s deficient-performance prong, “a defendant must

show that his counsel’s representation fell below an objective standard of

reasonableness in light of prevailing professional norms at the time the

representation took place.” Cummings v. Sec’y for Dep’t of Corr., 588 F.3d 1331,

1356 (11th Cir. 2009) (internal quotation marks omitted). A district court

considering a claim of ineffective assistance must apply a strong presumption that

counsel’s representation was “within the wide range of reasonable professional

assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. “A fair assessment of

attorney performance requires that every effort 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.

      To prove prejudice, a 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, 104 S.Ct. at 2068. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome,” but “some conceivable effect on the outcome of the proceeding” is not a

reasonable probability. Id. at 693-94, 104 S.Ct. at 2067-68.

      Before being questioned by the police, an individual in custody must be

“clearly informed” that he has, among other rights, “the right to consult with a

lawyer and to have the lawyer with him during interrogation.” Miranda, 384 U.S.


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at 471, 86 S.Ct. at 1626. Miranda prescribed that an individual must be given the

following warnings: (1) “that he has the right to remain silent”; (2) “that anything

he says can be used against him in a court of law”; (3) “that he has the right to the

presence of an attorney”; and (4) “that if he cannot afford an attorney one will be

appointed for him prior to any questioning if he so desires.” Id. at 479, 86 S.Ct. at

1630.

        In Roberts v. State, 874 So.2d 1225 (Fla. Dist. Ct. App. 2004), the state

appellate court declared the Broward County Sheriff’s Office Miranda warnings

inadequate because, while they stated an attorney may be present before

questioning, they did not inform a defendant that he has the right to have counsel

present during interrogation. Id. at 1226, 1228. Under Roberts, the use of “before”

misleads a defendant into believing that an attorney could not be present during

questioning. However, a subsequent decision by the United States Supreme Court

holds that “the term ‘before’ merely conveyed when [an individual’s] right to an

attorney became effective—namely, before he answered any questions at all.

Nothing in the words used indicated that counsel’s presence would be restricted

after the questioning commenced.” Florida v. Powell, 559 U.S. 50, 63, 130 S.Ct.

1195, 1205 (2010). Thus, temporal language such as “before” does not render

Miranda warnings inadequate if the warnings are “sufficiently comprehensive and

comprehensible when given a commonsense reading.” Id.; see id. at 60, 130 S.Ct.


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at 1204 (“[T]his Court has not dictated the words in which the essential

information must be conveyed.”). The Miranda rights at issue in Powell included

a catchall phrase that the defendant had the “right to use any of these rights at any

time you want during this interview.” Id. at 54, 130 S.Ct. at 1195.

      Here, we conclude from the record that Steffen has not overcome the doubly

deferential standard of review required by Strickland and § 2254(d) to establish

that the state court’s rejection of his ineffective-assistance-of-counsel claim was

objectively unreasonable. See Harrington, 562 U.S. at ___, 131 S.Ct. at 788.

There is a reasonable argument that Steffen’s counsel satisfied Strickland’s

deferential standard. See id. At trial, Steffen’s attorney advocated Steffen’s

position that he never received any Miranda warnings. Counsel’s decision not to

argue also that Steffen actually received warnings, but that they were inadequate,

was within the wide range of reasonable professional assistance. See Strickland,

466 U.S. at 689, 104 S.Ct. at 2065. This is especially true given that, under the

pre-Roberts law as it existed at the time of Steffen’s 2003 trial, it appeared that the

Miranda warnings were constitutionally adequate, and the constitutionality of

those warnings finds support in the Supreme Court’s recent Powell decision. See

id.; Cummings, 588 F.3d at 1356. Accordingly, because Steffen has not met the

first prong of Strickland, the state court’s rejection of his ineffective-assistance-of-

counsel claim was neither contrary to, nor an unreasonable application of, clearly


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established federal law. Thus, we affirm the district court’s judgment denying

Steffen’s petition for writ of habeas corpus.

      AFFIRMED.




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