              Case: 17-14236    Date Filed: 10/11/2018   Page: 1 of 6


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-14236
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 2:16-cv-14555-RLR

CHRISTOPHER BROWN,

                                                              Petitioner-Appellant,

                                      versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                          Respondent-Appellee.

                          ________________________

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

                                (October 11, 2018)

Before TJOFLAT, WILSON, and NEWSOM, Circuit Judges.

PER CURIAM:

      Christopher Brown, a Florida prisoner proceeding pro se, appeals the district

court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. A judge
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of this Court granted Brown a certificate of appealability on the sole issue of

whether Brown was denied effective assistance of counsel. After review, we

conclude that the district court correctly denied Brown’s petition and affirm the

district court.

                                           I.

       In 2010, Brown was convicted of conspiracy to traffic cocaine and perjury in

an official proceeding. In 2016, Brown filed a 28 U.S.C. § 2254 petition claiming

ineffective assistance of counsel. Brown claimed that his trial counsel was

ineffective by failing to join Brown’s codefendant’s request to admit certain

exculpatory evidence, and by failing to join his codefendant’s subsequent objection

to the trial court’s exclusion of that evidence. In support of his habeas petition,

Brown pointed to the fact that a Florida state appeals court later determined that

the trial court abused its discretion in excluding this exculpatory evidence and,

accordingly, overturned his codefendant’s convictions.

       The district court denied Brown’s claim as procedurally barred, as Brown

failed to raise the claim in his state post-conviction proceedings. The district court

also concluded that the procedural default was not excusable under Martinez v.

Ryan, 566 U.S. 1 (2012), as Brown had failed to show his ineffective assistance of

counsel claim was “substantial.” Alternatively, the district court concluded




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Brown’s claim could be denied on the merits. This Court later granted a certificate

of appealability on Brown’s claim.

       On appeal, Brown acknowledges that his ineffective assistance of counsel

claim is procedurally barred, but argues that his failure should be excused under

Martinez because he was without counsel during his initial state collateral

proceeding. Brown argues that his claim is both substantial under Martinez and

viable on the merits.

      After review, we affirm the district court’s denial of Brown’s petition. This

Court need not address whether the procedural default of Brown’s claim is excused

under Martinez, because, even assuming such procedural default was excused,

Brown’s ineffective assistance of counsel claim fails on the merits.

                                         II.

      When reviewing the district court’s denial of a habeas petition, this Court

reviews questions of law and mixed questions of law and fact de novo, and

findings of fact for clear error. Ferguson v. Sec’y, Dep’t of Corr., 580 F.3d 1183,

1193 (11th Cir. 2009). We may affirm the denial of habeas relief for any ground

supported by the record. Trotter v. Sec'y, Dep't of Corr., 535 F.3d 1286, 1291

(11th Cir. 2008).

      In order to succeed on a claim for ineffective assistance of counsel, a

criminal defendant must satisfy the two-pronged test outlined in Strickland v.


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Washington, 466 U.S. 668 (1984). Specifically, the defendant must demonstrate

(1) that his counsel’s performance was deficient, and (2) that he suffered prejudice

as a result of counsel’s deficient performance. Id. at 687. A habeas petitioner

claiming ineffective assistance of counsel must succeed on both prongs. Johnson

v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001). If the defendant fails to

establish either prong, the reviewing court need not address the other prong.

Strickland, 446 U.S. at 697.

      To succeed on Strickland’s deficient-performance prong, “a defendant must

demonstrate 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, Dep’t of Corr., 588 F.3d 1331,

1356 (11th Cir. 2009) (quotation omitted). There is a strong presumption that

counsel’s performance falls within the “wide range” of reasonable professional

competence. Strickland, 466 U.S. at 689. To overcome this presumption, the

defendant must show that “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id. at 687.

      To succeed on Strickland’s prejudice prong, 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. “A reasonable


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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.

      At Brown’s trial, the state provided extensive evidence of Brown’s

conspiracy to traffic cocaine, including more than fifty recorded telephone

conversations from wiretaps of the defendants’ phones. The recorded calls

included Brown’s discussions with Mark Leakes, a witness for the state,

concerning planned sales of cocaine. Leakes testified that he had previously

helped Brown and his codefendant, Risto Wyatt, purchase cocaine, although

Leakes had little interaction with Wyatt. Leakes identified Brown as the one who

“handle[d] business,” meaning Brown was the one responsible for paying Leakes

and checking the quality of the narcotics. Leakes also testified that Brown would

pay for the cocaine in cash, which was rubber-banded in $1,000 increments.

      At trial, the state also introduced evidence that Brown and Wyatt were once

stopped for speeding, where police discovered approximately $16,000 in cash,

which was rubber-banded in $1,000 increments. At a forfeiture hearing, Wyatt’s

girlfriend, Rashonda James, testified that the cash belonged to her and that the

defendants had borrowed her car without permission. At trial, Wyatt’s attorney,

but not Brown’s attorney, sought to introduce James’s testimony from the

forfeiture hearing.


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      Brown argues that had his counsel also sought to introduce this testimony, a

Florida appeals court would have overturned his conviction, just as the court

overturned Wyatt’s convictions. We find Brown’s argument unpersuasive. While

James’s testimony would have given Brown an alternate explanation for the cash,

the state’s case against Brown was much stronger than its case against Wyatt.

Most importantly, only Brown was captured on the recorded phone calls discussing

the sale of narcotics. According to the trial evidence, Leakes directly identified

Brown—not Wyatt—as the individual who arranged the narcotics transactions,

handed over the money, and cooked the cocaine to test its purity.

      As the Supreme Court has instructed, “a court hearing an ineffectiveness

claim must consider the totality of the evidence before the judge or jury,” including

taking into account the evidence unaffected by the errors. Strickland, 466 U.S. at

695. Here, the recorded phone calls and Leakes’s testimony strongly supported

Brown’s guilt, and would have been largely unaffected by James’s testimony.

Under these circumstances, Brown has not shown a reasonable probability that, but

for the inclusion of James’s testimony, “the result of the proceeding would have

been different,” as Strickland requires. Id. at 694. Accordingly, we affirm.

      AFFIRMED.




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