                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT         FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                 July 19, 2005
                                No. 05-10129
                                                              THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                     D.C. Docket No. 00-02597-CV-CAM-1

MARK JOSEPH FOGARTY,

                                                          Petitioner-Appellant,

      versus

TONY HOWERTON, Warden,

                                                          Respondent-Appellee.

                         __________________________

               Appeal from the United States District Court for the
                          Northern District of Georgia
                         _________________________

                                  (July 19, 2005)

Before DUBINA, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

      Mark Joseph Fogarty, a Georgia state prisoner, appeals, through counsel,

the denial of his petition for a writ of habeas corpus brought under 28 U.S.C.
§ 2254. Because Fogarty filed his motion after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.

104-132, 110 Stat. 1214 (1996), the provisions of that act apply. On appeal,

Fogarty claims (1) the state violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194, 10 L. Ed. 2d 215 (1963), when it withheld certain evidence, including eight

vehicle license tag numbers reported to police of vehicles that were being driven

by a person who matched a description of the suspect; and (2) he received

ineffective assistance of counsel based on his counsel’s compensation agreement.

      Habeas relief from a state court decision may not be granted unless it “(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). Quoting Williams v. Taylor, 529 U.S. 362,

412-13, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000), we explained that

      [u]nder the “contrary to” clause, a federal court may grant the writ if the
      state court arrives at a conclusion opposite to that reached by [the
      Supreme Court] on a question of law or if the state court decides a case
      differently than [the Supreme Court] has on a set of materially
      indistinguishable facts. Under the “unreasonable application” clause, a
      federal habeas court may grant the writ if the state court identifies the



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      correct governing legal principle from [the Supreme Court’s] decisions
      but unreasonably applies that principle to the facts of the prisoner’s case.

Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001). The state court’s factual

findings are presumed correct unless rebutted by the petitioner by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1). The district court’s findings of fact

“are reviewed under the clearly erroneous standard.” Parker, 244 F.3d at 836.

“Mixed questions of law and fact are reviewed de novo, as are questions of law.”

Id.

                                           I.

      Fogarty argues that the characterization of the withheld evidence as “minor”

is unreasonable and contrary to clearly established federal law because he was

acquitted on some charges, which provides for a reasonable probability of a

different result. He asserts specifically that the withheld license tag numbers are

per se exculpatory under Kyles v. Whitley, 514 U.S. 419, 115 S. Ct. 1555, 131 L.

Ed. 2d 490, 496-497 (1995).

      “[S]uppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.” Brady,

373 U.S. at 87, 83 S. Ct. at 1196-97. “[E]vidence is material only if there is a



                                           3
reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different. A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome.” United States v.

Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481 (1985).

Although evidence is to be considered collectively, “the Constitution is not

violated every time the government fails or chooses not to disclose evidence that

might prove helpful to the defense.” Kyles, 514 U.S. at 436-37, 115 S.Ct. at 1567.

      [T]here is never a real “Brady violation” unless the nondisclosure was
      so serious that there is a reasonable probability that the suppressed
      evidence would have produced a different verdict. There are three
      components of a true Brady violation: The evidence at issue must be
      favorable to the accused, either because it is exculpatory, or because it
      is impeaching; that evidence must have been suppressed by the State,
      either willfully or inadvertently; and prejudice must have ensued.

Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286

(1999).

      The district court did not err by denying Fogarty’s Brady claim. The

Georgia Court of Appeals held that Fogarty’s trial counsel was aware of much of

the contested evidence, and Fogarty has not rebutted this finding. Although

Fogarty adequately preserved below claims regarding the 10 pieces of evidence he

listed in his § 2254 petition, he failed to properly brief before us all of these

claims, except for his claim regarding the license plate numbers. Thus, he has

                                           4
abandoned those claims not briefed here. United States v. Jernigan, 341 F.3d

1273, 1283 n.8 (11th Cir. 2003) (holding that issues raised in passing in an initial

brief are considered abandoned and not addressed by this Court).

      The Georgia Court of Appeals, citing to Kyles, held that the remaining

evidence, of which Fogarty’s counsel was unaware, was minor, and its effect on

the outcome was speculative. Fogarty suggests that because he was acquitted of

some of the charges, the disclosure of the license tag numbers would lead to a

reasonable probability of a different result under Kyles. Kyles involved withheld

license plate numbers, but did not hold that the numbers themselves were per

se exculpatory. Rather, the Supreme Court held that the list was material because

it led to a reasonable probability that the outcome at trial would have been

different in light of the effect on other evidence and testimony. Kyles, 514 U.S. at

450-53, 115 S.Ct. at 1573-75. The facts of Kyles are materially distinguishable,

and Fogarty has not explained how the Georgia Court of Appeals unreasonably

applied Brady or Kyles. Therefore, we must defer to the decision of the Georgia

Court of Appeals on Fogarty’s Brady claim.

                                         II.

      Fogarty argues that an actual conflict of interest existed in this case based

on his trial counsel’s compensation agreement. He asserts that the Georgia

                                          5
Supreme Court disregarded clearly established federal law by holding that the

compensation agreement did not create a conflict of interest. He contends that his

trial counsel tailored his defense to fit the agreement, which demonstrates an

actual conflict of interest.

      We review de novo a claim of ineffective assistance of counsel, as it is a

mixed question of law and fact. Caderno v. United States, 256 F.3d 1213, 1216-17

(11th Cir. 2001). To prevail on a claim of ineffective assistance of counsel, a

habeas petitioner must show that (1) “counsel’s performance was deficient” in that

it “fell below an objective standard of reasonableness,” and (2) “the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,

687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). Regarding the first

prong, there is a strong presumption that counsel’s conduct fell within the range of

reasonable professional assistance and judicial scrutiny of counsel’s performance

must be highly deferential. Id. at 689, 104 S.Ct. at 2065. If the record is

incomplete or unclear about counsel’s actions, then it is presumed that counsel

exercised reasonable professional judgment. Chandler v. United States, 218 F.3d

1305, 1314 n.15 (11th Cir. 2000) (en banc). Regarding the second prong,

prejudice occurs when a petitioner establishes that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

                                           6
proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at

2068. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. A reviewing court need not address the

performance prong of the test if the defendant cannot meet the prejudice prong, or

vice versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).

      “Prejudice [stemming from counsel’s conflict of interest] is presumed only

if the defendant demonstrates that counsel actively represented conflicting

interests and that an actual conflict of interest adversely affected his lawyer’s

performance.” Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 (quotation omitted).

“An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that

adversely affects counsel’s performance.” Mickens v. Taylor, 535 U.S. 162, 172

n.5, 122 S. Ct. 1237, 1244 n.5, 152 L. Ed. 2d 291 (2002). “To prove adverse

effect, a habeas corpus petitioner must show: (1) the existence of a plausible

alternative defense strategy or tactic that might have been pursued; (2) that the

alternative strategy or tactic was reasonable under the facts; and (3) a link between

the actual conflict and the decision to forgo the alternative strategy of defense.”

Pegg v. United States, 253 F.3d 1274, 1278 (11th Cir. 2001).

      The district court did not err by denying Fogarty’s ineffective assistance of

counsel claim. The Georgia Supreme Court, analyzing the case under Strickland

                                           7
and Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980),

determined that Fogarty’s counsel’s fee agreement did not create an actual conflict

of interest, and Fogarty did not show that his counsel’s performance was defective

and prejudiced him. Even if counsel actively represents conflicting interests, a

habeas petitioner must show that the conflict adversely affected counsel’s

performance. Fogarty has not shown any link between the alleged conflict and his

counsel’s decision to forgo any alternative strategies of defense. Therefore, he has

not shown any adverse effect of any conflict of interest, nor has he shown how the

Georgia Supreme Court’s decision was contrary to or an unreasonable application

of federal law. Therefore, we must defer to the Georgia Supreme Court on this

issue.

         For the foregoing reasons, we affirm the district court’s judgment denying

habeas relief.

         AFFIRMED.




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