                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             January 17, 2006
                             No. 04-15351                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 03-22851-CV-ASG

MIGUEL SALDO,



                                                          Petitioner-Appellant,

                                  versus

SECRETARY, James Crosby,

                                                        Respondent-Appellee.


                       ________________________

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

                            (January 17, 2006)


Before ANDERSON, BIRCH and WILSON, Circuit Judges.

PER CURIAM:
      Miguel Saldo, a state prisoner proceeding pro se, appeals the district court’s

dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. §

2254, challenging his 30-year state prison sentence for aggravated battery with a

firearm and possession of a firearm by a convicted felon. In his petition, Saldo

raised several claims of ineffective assistance of counsel. The district court

dismissed Saldo’s petition because he did not meet the standard the Supreme Court

set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984). Saldo was granted a certificate of appealability on the issue of

ineffective assistance of counsel, based on his claims that his Sixth Amendment

rights were violated because: (1) counsel threatened to withdraw if he testified; (2)

counsel failed to investigate and call a witness who would testify that he neither

had a gun nor shot the victim; (3) counsel opened the door for prejudicial evidence

from the victim; and (4) counsel failed to investigate and call witnesses who would

provide an alibi to show that he never threatened to kill the victim.

      We review the district court’s denial of habeas corpus relief de novo, and its

findings of fact for clear error. Pruitt v. Jones, 348 F.3d 1355, 1356 (11th Cir.

2003), cert. denied, 125 S. Ct. 218, 160 L. Ed. 2d 60 (2004). Because Saldo filed

his petition after the effective date of the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 (1996), the



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provisions of the act govern this appeal. In order to obtain habeas relief, Saldo

must demonstrate that the state court’s ruling “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court . . . or . . . 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). An unreasonable application of clearly established federal law is

one in which the “state court identifies the correct governing legal rule from [the

Supreme] Court’s cases but unreasonably applies it to the facts of the [petitioner’s]

case,” or “either unreasonably extends a legal principle from [the Supreme Court’s]

precedent to a new context where it should not apply or unreasonably refuses to

extend that principle to a new context where it should apply.” Williams v. Taylor,

529 U.S. 362, 407, 120 S. Ct. 1495, 1520, 146 L. Ed. 2d 389 (2000). This standard

requires the application of federal law “to be not only erroneous, but objectively

unreasonable.” Yarborough v. Gentry, 540 U.S. 1, 5, 124 S. Ct. 1, 4, 157 L. Ed. 2d

1 (2003) (per curiam). A state court’s factual findings are presumed correct, and a

petitioner bears the burden of rebutting the presumption by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1). Questions whose resolution depend heavily on

the trial court’s appraisal of witness credibility and demeanor are deemed questions

of fact. See Freund v. Butterworth, 165 F.3d 839, 862 (11th Cir. 1999) (en banc).



                                          3
       To prove ineffective assistance of counsel, the petitioner has the burden to

show that: (1) his counsel’s performance was deficient, and (2) there is a

reasonable probability that the outcome would have been different, but for

counsel’s deficient performance. Strickland, 466 U.S. at 687, 694, 104 S. Ct. at

2064, 2068. “[T]here is no reason for a court deciding an ineffective assistance

claim to approach the inquiry in the same order or even to address both

components of the inquiry if the defendant makes an insufficient showing on one.”

Id. at 697, 104 S. Ct. at 2069. To prove the deficient performance prong, Saldo

must show that counsel made an error so serious that he was not functioning as the

counsel guaranteed by the Sixth Amendment. Id. at 687, 104 S. Ct. at 2064. There

is a strong presumption that counsel’s performance was reasonable and adequate,

with great deference to reasonable strategic choices. Rogers v. Zant, 13 F.3d 384,

386 (11th Cir. 1994). Thus, “for a petitioner to show that the conduct was

unreasonable, [he] must establish that no competent counsel would have taken the

action that his counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315

(11th Cir. 2000) (en banc).

       Saldo first argues that he was denied effective assistance of counsel when

trial counsel threatened to withdraw if he testified at trial.1 However, the trial


       1
       As part of this argument, Saldo claims that the district court should have considered
whether the state court granted a fair evidentiary hearing. However, because Saldo did not raise

                                                4
record forecloses Saldo’s argument. Sworn statements on the record, as well as the

judge’s findings, pose a “formidable barrier in any subsequent collateral

proceedings.” Blackledge v. Allison, 431 U.S. 63, 74-75, 97 S. Ct. 1621, 1629, 52

L. Ed. 2d 136 (1977). Saldo initially denied that he had been coerced into not

testifying but subsequently recanted those statements. After giving Saldo an

opportunity to testify, the trial court found that Saldo was not coerced. These facts

alone suffice to subject Saldo’s claim to summary dismissal. As an additional

matter, however, at the evidentiary hearing for post-conviction relief, the state

court found that counsel testified credibly, and that Saldo did not. Saldo has not

presented any evidence other than his testimony to substantiate his claim of

ineffective assistance of counsel, nor has he presented any evidence that the state

court was incorrect. Consequently, Saldo has not overcome the presumption

established in 28 U.S.C. § 2254(e)(1).

       Saldo next argues that he received ineffective assistance of counsel because

trial counsel failed to investigate and call a witness who would have testified that

he neither possessed a gun nor shot the victim.

       The district court correctly found that the state court’s conclusions were



this argument when he applied for a certificate of appealability before the district court, we will
not consider the issue. See Diaz v. Sec’y for Dep’t of Corr., 362 F.3d 698, 702 (11th Cir. 2004)
(per curiam).

                                                 5
neither contrary to, nor an unreasonable application of, Strickland. The trial record

shows that the trial judge informed Saldo he could call any other witnesses his

attorney did not call and even indicated that there were officers waiting to go get

the witnesses. Saldo’s sworn statement was that he did not wish to call anyone

else. Moreover, Saldo has failed to show prejudice. When Saldo shot the victim, a

police officer chased him down and arrested him within minutes, and two other

eyewitnesses identified him as the perpetrator. In light of these facts, Saldo has

failed to show a reasonable probability that contradictory testimony from one

witness would have led to a different result. See Strickland, 466 U.S. at 694, 104

S. Ct. at 2068.

      In his third claim, Saldo argues that he received ineffective assistance of

counsel because his trial counsel opened the door to prejudicial information about

his altercation with an elderly woman when examining the victim.

      The district court did not err in finding that the state court’s decision was

neither contrary to, nor an unreasonable application of, federal law. Saldo did not

show prejudice and so did not meet the second prong of the Strickland test.

Evidence that Saldo and the victim had been in a fistfight had already been

introduced to the jury, thus providing a motive. Saldo has merely made a

conclusory statement that evidence regarding his altercation with an elderly woman



                                           6
was prejudicial but has not shown a reasonable probability that the outcome would

have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

       Finally, Saldo argues that he received ineffective assistance of counsel

because trial counsel failed to investigate and call alibi witnesses to defend against

allegations that, between shooting the victim and trial, Saldo approached the

victim’s brother and threatened to kill the victim.2

       As to this issue, the district court correctly found that the state court’s

conclusions were neither contrary to, nor an unreasonable application of,

Strickland. Again, Saldo was informed that he could call any witnesses that his

attorney did not call, and he stated under oath that he did not wish to do so.

Furthermore, Saldo has not shown how such information could create a reasonable

probability that the jury would not convict him of shooting the victim. See

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

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

conclude that the district court did not err in finding that Saldo’s Sixth Amendment

rights were not violated based upon his claims of ineffective assistance of counsel.

Accordingly, we affirm.

       AFFIRMED.

       2
         Saldo has requested an evidentiary hearing as part of his argument on this claim. We
will not consider this request, however, because “[a]ppellate review in a [habeas] proceeding is
limited to the issues specified in the certificate of appealability.” Diaz, 362 F.3d at 702.

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