                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           SEPT 9, 2008
                            No. 08-11074
                                                         THOMAS K. KAHN
                        Non-Argument Calendar
                                                             CLERK
                      ________________________

               D. C. Docket No. 04-01767-CV-ORL-18KRS

JEFFERY C. WEBSTER,



                                                        Petitioner-Appellant,

                                 versus

SECRETARY, DOC,
FL ATTORNEY GENERAL,


                                                     Respondents-Appellees.

                      ________________________

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

                          (September 9, 2008)

Before BARKETT, MARCUS and WILSON , Circuit Judges.
PER CURIAM:

      Jeffery Webster, a Florida prisoner convicted of robbery with a deadly

weapon, appeals pro se the denial of his habeas corpus petition, which was

brought pursuant to 28 U.S.C. § 2254, alleging ineffective assistance of counsel.

The district court granted a certificate of appealability on the limited issue of

whether Webster’s trial counsel was ineffective because, during Webster’s trial, he

did not fully examine, enhance, and present a surveillance video of the crime.

      On appeal, Webster argues, first, that, by failing to investigate the

surveillance video and photographic stills from the video, his counsel failed to

investigate Webster’s “one plausible line of defense that could scientifically prove

his innocence” and was, therefore, ineffective. He argues that: (1) geometric

measurements reveal that it was physically impossible for him to have been the

individual on the video; (2) the jury considered the video and the photographic

stills during its deliberations; and (3) no reasonable attorney would have failed to

conduct an investigation. Webster stresses that he and his attorney discussed the

physical differences between himself and the individual on the video, but his

counsel did not investigate these differences and, therefore, had little to present to




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the jury. Using “photogrammetry,”1 he argues that there are differences between

his own body, particularly in arm length, and the body of the individual in the

video and the stills. He argues that, if his counsel had presented the facts related

to the photogrammetry at trial, the charges against him would have been

dismissed. Webster, second, argues that the district court’s decision to dismiss his

habeas petition without an evidentiary hearing was unreasonable.

                                              I.

      We review a district court’s denial of a § 2254 petition de novo, while the

court’s factual findings are reviewed for clear error. See Sims v. Singletary, 155

F.3d 1297, 1304 (11th Cir. 1998). Mixed questions of law and fact, including

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

      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
      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.



      1
          A technique where geometric properties of objects are determined using photographic
images.

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28 U.S.C. § 2254(d).

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

ineffective, the defendant must show that (1) his counsel was deficient, i.e., made

errors so serious that counsel was not functioning as guaranteed under the Sixth

Amendment, and (2) there is a reasonable probability that, but for counsel’s

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

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d

674 (1984). “Unless a defendant makes both showings, it cannot be said that the

conviction . . . resulted from a breakdown in the adversary process that renders the

result unreliable.” Id. at 687, 104 S. Ct. at 2064.

      “For performance 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. Reviewing courts must be

highly deferential and 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. A reasonable probability of a different result at trial is one sufficient to

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undermine confidence in the outcome, and the defendant must do more than show

that the error had some conceivable effect on the outcome of the proceeding.

Strickland, 466 U.S. at 693-94, 104 S.Ct. at 2067-68. When an individual

challenges a state court’s Strickland decision, “it is not enough to convince a

federal habeas court that, in its independent judgment, the state-court decision

applied Strickland incorrectly. . . . he must show that the [state court] applied

Strickland to the facts of his case in an objectively unreasonable manner.” Bell v.

Cone, 535 U.S. 685, 699, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002).

      Upon review of the record and consideration of the briefs of the parties, we

discern no reversible error. Webster was positively identified by an eyewitness

who also identified Webster’s vehicle in addition to the surveillance video.

Moreover, Webster has not shown that additional investigation by his attorney

with respect to the video would have resulted in exonerating clarification of the

video. The district court did not err in denying his claim for habeas relief based on

ineffective assistance of counsel.

                                          II.

      We review a district court’s decision to deny an evidentiary hearing for an

abuse of discretion. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1333 (11th

Cir. 2004). The applicable federal habeas statute provides that:

                                           5
      [i]f the applicant has failed to develop the factual basis of a claim in
      State court proceedings, the court shall not hold an evidentiary
      hearing on the claim unless the applicant shows that--

      (A) the claim relies on--

      (i) a new rule of constitutional law, made retroactive to cases on
      collateral review by the Supreme Court, that was previously
      unavailable; or

      (ii) a factual predicate that could not have been previously discovered
      through the exercise of due diligence; and

      (B) the facts underlying the claim would be sufficient to establish by
      clear and convincing evidence that but for constitutional error, no
      reasonable factfinder would have found the applicant guilty of the
      underlying offense.

28 U.S.C. § 2254(e)(2). The U.S. Supreme Court has held that:

      [f]or state courts to have their rightful opportunity to adjudicate
      federal rights, the prisoner must be diligent in developing the record
      and presenting, if possible, all claims of constitutional error. If the
      prisoner fails to do so, himself or herself contributing to the absence
      of a full and fair adjudication in state court, § 2254(e)(2) prohibits an
      evidentiary hearing to develop the relevant claims in federal court,
      unless the statute's other stringent requirements are met. Federal
      courts sitting in habeas are not an alternative forum for trying facts
      and issues which a prisoner made insufficient effort to pursue in state
      proceedings.

Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 1491, 146 L.Ed.2d 435

(2000).




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      Because Webster did not develop his claim fully in state court, and his claim

did not rely on a new rule of constitutional law, nor a factual predicate that could

not have been previously discovered, the district court did not abuse its discretion

in denying Webster’s petition without an evidentiary hearing. Accordingly, we

affirm.

      AFFIRMED.




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