                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________
                                                                     FILED
                                                            U.S. COURT OF APPEALS
                                No. 09-10495                  ELEVENTH CIRCUIT
                                                                JANUARY 25, 2010
                            Non-Argument Calendar
                                                                    JOHN LEY
                          ________________________                ACTING CLERK


                     D. C. Docket No. 03-00249-CV-CAR-5

LEWIS BOGAN,



                                                             Petitioner-Appellant,

                                     versus

PAUL THOMPSON,
Warden, Telfair State Prison,

                                                           Respondent-Appellee.


                          ________________________

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

                                (January 25, 2010)

Before BIRCH, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:
      Lewis Bogan, a Georgia prisoner proceeding pro se, appeals the district

court’s dismissal of his 28 U.S.C. § 2254 petition.

      On December 30, 1996, Bogan snatched a woman’s purse in the parking lot

of a restaurant in Perry, Georgia, and jumped into a nearby pickup truck. The

woman’s husband pursued Bogan and managed to grab on to the driver’s side of

the truck. Bogan drove off, dragging the husband with him until he managed to

shake the man from the truck, leaving him injured on the ground. Three days later,

an employee of an auto shop in Perry called police to report a man offering to sell a

like-new pickup truck for much less than it was worth. Police confirmed that the

vehicle, which matched the description of the truck used in the robbery, had been

stolen several days earlier from Florida. They found Bogan and the truck’s

ignition key in the store’s darkened restroom.

      Bogan was convicted in state court of theft by receiving stolen property in

relation to the truck, robbery by sudden snatching, and aggravated assault against

the husband. The Georgia Court of Appeals affirmed Bogan’s convictions on

direct review, rejecting his claims of ineffective assistance of counsel. In

dismissing Bogan’s habeas petition, the district court concluded that the state

court’s resolution of his claims was not contrary to nor an unreasonable application

of clearly established federal law.

      We granted a certificate of appealability (COA) on two questions: (1)
                                           2
“Whether the district court erred in determining that the state court’s

decision—that trial counsel’s failure to interview any of the state’s sixteen

witnesses prior to trial did not constitute deficient performance—was not contrary

to, or an unreasonable application of, clearly established federal law?” and (2)

“Whether the district court erred in determining that the state court’s

decision—that counsel’s failure to file a motion to sever the theft charge from the

other charges in the indictment constituted a reasonable tactical decision—was not

contrary to, or an unreasonable application of, clearly established federal law?”

                                           I.

      We review de novo a district court’s denial of a habeas petition under 28

U.S.C. § 2254, but we review its factual findings only for clear error. See Sims v.

Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). A habeas petition based on

ineffective assistance of counsel presents a mixed question of law and fact that we

review de novo. Id. A federal court may not grant habeas relief on claims that

were previously adjudicated in state court, unless the state-court adjudication

“resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established [f]ederal law, as determined by the Supreme

Court of the United States; or . . . resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the

[s]tate court proceeding.” 28 U.S.C. § 2254(d)(1)–(2). “A state-court decision is
                                           3
contrary to . . . clearly established precedents if it applies a rule that contradicts the

governing law set forth in [the Supreme Court’s] cases, or if it confronts a set of

facts that is materially indistinguishable from a [Supreme Court] decision . . . but

reaches a different result.” Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432,

1438–39 (2005) (citing Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495,

1519 (2000), and Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002)). “A

state-court decision involves an unreasonable application of . . . clearly established

precedents if the state court applies [the Supreme] Court’s precedents to the facts

in an objectively unreasonable manner.” Id. (citing Williams, 529 U.S. at 405, 120

S. Ct. at 1519, and Woodford v. Visciotti, 537 U.S. 19, 24–25, 123 S. Ct. 357, 360,

(2002)).

         A state court’s determination of a factual issue is presumed correct, unless

the petitioner rebuts it by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

However, because an ineffectiveness claim is a mixed question of law and fact, the

state court’s conclusion that counsel rendered effective assistance is not entitled to

a presumption of correctness. Coulter v. Herring, 60 F.3d 1499, 1503 (11th Cir.

1995).

         In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

(1984), the Supreme Court set out a two-part inquiry for ineffective assistance of

counsel claims:
                                             4
      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
      show that the deficient performance prejudiced the defense. This
      requires showing that counsel’s errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable.

A habeas petitioner claiming ineffective assistance of counsel must succeed on

both prongs of the Strickland test. Johnson v. Alabama, 256 F.3d 1156, 1176 (11th

Cir. 2001). Because we conclude that Bogan has failed to make a sufficient

showing of deficient performance on either of his claims, we need not address

prejudice. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

      When evaluating the performance prong, counsel’s representation is judged

by an objective standard of reasonableness under all the circumstances, and

“[j]udicial scrutiny of counsel’s performance must be highly deferential.” See id.

at 688–89, 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. at 689, 104 S. Ct. at 2065. In

order to demonstrate deficient performance, the petitioner must overcome a “strong

presumption that counsel’s conduct [fell] within the wide range of reasonable

professional assistance” and that “under the circumstances, the challenged action

might be considered sound trial strategy.” Id. (quotation marks omitted). The
                                           5
petitioner bears the heavy burden of proving that “no competent counsel would

have taken the action that his counsel did take.” Johnson, 256 F.3d at 1176–77

(citation omitted).

                                          II.

      Bogan argues that his counsel performed deficiently because he did not

interview any of the state’s witnesses before trial, and instead merely reviewed the

witness statements provided in discovery. “‘[C]ounsel has a duty to make

reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary,’” but we apply a strong presumption of reasonableness

to counsel’s investigation. Mitchell v. Kemp, 762 F.2d 886, 888–89 (11th Cir.

1985) (quoting Strickland, 466 U.S. at 691, 104 S. Ct. at 2066).

      Bogan’s trial counsel attested that he had twice reviewed the prosecutor’s

file and the statements of the sixteen witnesses, that he had familiarized himself

with their potential testimony, and that he believed he had been adequately

prepared for trial. The state court correctly identified Strickland as the appropriate

legal standard for ineffective-assistance claims, and it concluded Bogan had failed

to prove that counsel’s decision was deficient under the performance prong of

Strickland. Bogan points to no specific instance in which counsel was surprised by

a witness’s testimony or failed to perform an effective cross-examination. Apart

from the bare assertion that failure to interview witnesses reflects inadequate
                                           6
preparation, Bogan does not offer any argument against the adequacy of his

counsel’s pretrial investigation.1 Thus, he has not shown that the state court

applied Strickland unreasonably. See Brown, 544 U.S. at 141, 125 S. Ct. at

1438–39; Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065. The district court did

not err in deferring to the state court’s holding and dismissing Bogan’s claim. See

28 U.S.C. § 2254(d)(1); Sims, 155 F.3d at 1304.

                                              III.

       Bogan also contends that trial counsel was ineffective because he did not

move to sever the stolen-property charge from the robbery and assault charges.

Without evidence connecting Bogan to the truck, he argues, there would have been

little to identify him as the perpetrator of the robbery. Bogan’s counsel stated after

trial that, in hindsight, he realized he “probably should have filed a Motion to

Sever” and that “Lewis Bogan would NOT have been convicted of Aggravated

Assault . . . or Robbery . . . if a severance had been granted.”

       As noted above, the courts must apply a “strong presumption that . . . under

the circumstances, the challenged action might be considered sound trial strategy.”

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (quotation marks omitted). Georgia

courts generally consider the decision whether to move for severance to be a matter
       1
         Bogan’s argument focuses instead on his counsel’s failure to subpoena two other
potential witnesses who might have impeached the testimony of some of the state’s witnesses.
This issue is outside the scope of the COA, so we decline to consider it. See Murray v. United
States, 145 F.3d 1249, 1250–51 (11th Cir. 1998).
                                                7
of trial tactics, Scott v. State, 506 S.E.2d 880, 881 (Ga. Ct. App. 1998), though it is

possible to prove that such failure constituted deficient performance, see Harris v.

State, 557 S.E.2d 452, 453–54 (Ga. Ct. App. 2001).

      We note also that while it is possible a severance might have improved his

chances, Bogan would not automatically have been entitled to one even had his

attorney asked. In a situation where multiple charges arise out of the same course

of conduct or a series of connected acts, whether to grant severance is left to the

discretion of the trial court. Davis v. State, 477 S.E.2d 639, 641 (Ga. Ct. App.

1996); see O.C.G.A. § 16-1-7(c). The stolen truck was used to commit the assault

and to escape from the scene of the robbery, and Bogan’s use of the truck during

the robbery was part of the continuing offense of receiving stolen property.

Evidence that Bogan was later arrested with a truck matching the description of

that used in the robbery helped connect him to the other crime. In this case, the

Georgia court concluded that Bogan had not established deficient performance

because he had done nothing more than raise the possibility that he might have

benefited from separate trials. Counsel’s later admission that he wished he had

done things differently does not indicate that his failure to file the motion was due

to oversight rather than simply a poor strategic choice. See Grayson v. Thompson,

257 F.3d 1194, 1222 (11th Cir. 2001) (counsel’s own hindsight does not establish

deficient performance). “Because ineffectiveness is a question which we must
                                           8
decide, admissions of deficient performance by attorneys are not decisive.” Harris

v. Dugger, 874 F.2d 756, 761 n.4 (11th Cir. 1989). The Georgia Court of Appeals

did not unreasonably apply clearly established federal law when it concluded that

Bogan had failed to show that counsel’s performance was outside the wide range

of reasonable professional assistance. See Strickland, 466 U.S. at 689, 104 S. Ct.

at 2065.

      AFFIRMED.




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