                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 06-10940                 OCTOBER 11, 2006
                           Non-Argument Calendar            THOMAS K. KAHN
                                                                CLERK
                         ________________________

                    D. C. Docket No. 04-01573-CV-CA,-1

RANDY BROWN,



                                                     Petitioner-Appellant,

                                    versus

WARDEN DWIGHT HAMRICK,

                                                     Respondent-Appellee.


                         ________________________

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

                              (October 11, 2006)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Randy Brown, a Georgia state prisoner proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. Because the

state court’s decision was not contrary to, or an unreasonable application of, clearly

established federal law, and because the decision was not based on an unreasonable

determination of the facts in light of the evidence presented, Brown is not entitled

to habeas relief. Accordingly, we affirm.

                                   BACKGROUND

       Brown, who is serving a fifty-year sentence for various burglary and

attempted rape offenses, filed a 28 U.S.C. § 2254 petition for writ of habeas corpus

in the district court alleging, inter alia, that his trial counsel was ineffective for

failing to object to the submission of evidence of his prior convictions for rape and

drug offenses to the jury. Brown claimed that his trial counsel was ineffective for

allowing the state’s exhibits, which were not in evidence, to go to the jury during

deliberations. He also argued that his appellate counsel was ineffective for failing

to challenge on direct appeal the trial court’s improper submission to the jury of

certified records of his prior convictions.

       During the evidentiary hearing in Brown’s state habeas proceeding, Brown’s

appellate counsel Michael Katz testified that he did not remember any issues

concerning evidence that had not been admitted going to the jury. Tim Saviello,

Brown’s trial counsel, also did not recall any exhibits that had not been admitted



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going to the jury. Saviello admitted that if records of Brown’s prior crimes had

been submitted to the jury, it would have had a significant impact on the case as

Brown’s credibility was at issue.

      In denying his state habeas petition, the state court applied Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1980), as the

standard for determining whether Brown’s counsel was ineffective. The court

found that Brown was competently represented during his trial and direct appeal.

Furthermore, to the extent that his counsel may have erred, Brown failed to

demonstrate prejudice. The state court only made a general finding as to the issue

of counsel’s effectiveness and did not address the specific claim that evidence had

been improperly submitted to the jury.

      In Brown’s federal habeas case, the State supported its brief with Brown’s

trial transcript and exhibits. Included among the exhibits were certified records of:

(1) a 1984 Georgia conviction for rape; (2) 1991 Georgia convictions for a drug

violation and possession of a firearm during the commission of a crime; and (3) a

1991 Georgia conviction for the sale of cocaine. The reports of the convictions

were labeled State’s Exhibits Five, Six, and Seven, respectively.

      According to the trial transcript, on the last day of Brown’s trial, the trial

court instructed the jury on the charges and then directed them to retire and elect a



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foreperson. After the jury retired, counsel discussed exceptions to the jury charge

and the condition in which the indictment would be sent back to the jury. The

discussion concluded with one of Brown’s counsel, Anna Blitz, stating: “At this

time, we are sending back to the jury the indictment, the verdict form, defendant’s

exhibits 4, and 6, and 1, state’s exhibits 1, 4, and 2.” The court then sent the

exhibits and indictment to the jury for deliberation. The jury convicted Brown of

all counts. At sentencing, the government introduced its Exhibits Five, Six, and

Seven, the certified records of Brown’s convictions.

      The federal magistrate judge found that the state court’s conclusions that

Brown’s trial and appellate counsel were not ineffective was not contrary to federal

law. Further, the magistrate found that Brown’s counsel’s performance was not

constitutionally suspect. Though the state habeas court did not directly address the

issue of the prior crimes evidence, the magistrate found that Brown only offered a

conclusory allegation and did not point to any evidence that the documents had

been submitted to the jury. The district court adopted the magistrate’s report and

recommendation over Brown’s objection.

      Brown moved for a certificate of appealability (“COA”), which the district

court denied. This Court granted a COA on the issue of: “Whether counsel was

ineffective, under the standard set forth in Strickland v. Washington, 466 U.S. 668,



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687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), for permitting the jury to be

provided with documents regarding appellant’s prior convictions, where the

documents never were admitted into evidence during trial?”

                            STANDARD OF REVIEW

      We review a district court’s grant or denial of a § 2254 petition de novo,

while the court’s factual findings are reviewed for clear error. Sims v. Singletary,

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

ineffective assistance of counsel claims, 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.

28 U.S.C. § 2254(d). As we have explained:

      A state court decision is “contrary to” clearly established federal law
      if either (1) the state court applied a rule that contradicts the governing
      law set forth by Supreme Court case law, or (2) when faced with
      materially indistinguishable facts, the state court arrived at a result
      different from that reached in a Supreme Court case. . . .
              A state court conducts an “unreasonable application” of clearly
      established federal law if it identifies the correct legal rule from
      Supreme Court case law but unreasonably applies that rule to the facts

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      of the petitioner’s case. An unreasonable application may also occur
      if a state court unreasonably extends, or unreasonably declines to
      extend, a legal principle from Supreme Court case law to a new
      context. Notably, an “unreasonable application” is an “objectively
      unreasonable” application.

Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (internal citations omitted).

Finally, the state court’s findings of fact “shall be presumed to be correct” and

“[t]he applicant shall have the burden of rebutting the presumption of correctness

by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

                                   DISCUSSION

      Brown alleges that both his trial counsel and his counsel on direct appeal

were ineffective when they failed to challenge the trial court’s submission to the

jury of records not admitted into evidence. The Sixth Amendment provides that a

criminal defendant shall have the right to the assistance of counsel. U.S. Const.

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

ineffective, the defendant must show that (1) counsel’s performance was deficient;

and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. 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 when examining counsel’s performance, and must



                                           6
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. Under

the prejudice prong, “[t]he 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.” Strickland, 466 U.S. at 694, 104 S. Ct. at

2068.

        The state court found that neither Brown’s trial counsel nor his appellate

counsel was aware of any deprivation of constitutional rights in Brown’s trial. The

state court further found that Brown’s counsel competently and adequately

represented Brown in his trial and on direct appeal. Applying Strickland, the state

court concluded that Brown was afforded effective assistance of counsel at trial

and on appeal.

        The state court’s decision was not contrary to, or an unreasonable

application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). First,

the state court correctly identified Strickland as the controlling law governing

ineffective assistance of counsel claims. Second, Brown does not argue, and the



                                           7
record does not suggest, that the facts of Brown’s case are materially

indistinguishable from the facts in Strickland. Third, the state court’s decision that

Brown’s counsel was not deficient was not objectively unreasonable.

      Both Brown’s trial and appellate counsel testified that they were not aware

of the improper introduction of evidence of Brown’s past convictions. Further,

Brown’s trial transcript revealed that his counsel discussed which exhibits were

admitted and were to be published to the jury during deliberations. The exhibits

did not include the certified records of his convictions. Though the conviction

records were attached to the transcript, there is no evidence that they were

introduced any other time other than during Brown’s sentencing hearing. As

Brown did not establish that the jury considered the records of his prior

convictions, he has not established that his counsel was defective for failing to

object to the jury’s consideration of his prior convictions. Because Brown did not

demonstrate that his counsel was deficient under the first prong of Strickland, it is

unnecessary to address the second prong, namely, whether his counsel’s conduct

prejudiced Brown’s defense.

      To the extent that Brown argues on appeal that the state court’s decision

“was based on an unreasonable determination of the facts in light of the evidence

presented,” see id. § 2254(d)(2), Brown has not met his burden of proving that the



                                           8
state court’s finding that his counsel was competent was incorrect. As discussed

above, the evidence in the record indicates that the jury did not consider the

certified records of Brown’s prior convictions during deliberations. On appeal,

Brown does not present any evidence, much less clear and convincing evidence,

that the state court’s decision was incorrect. Based on the foregoing, Brown has

not met his burden under 28 U.S.C. § 2254(d).

                                   CONCLUSION

      Because the state court’s decision was not contrary to, or an unreasonable

application of, clearly established federal law, and because the decision was not

based on an unreasonable determination of the facts in light of the evidence

presented, Brown is not entitled to habeas relief. Accordingly, we find no

reversible error in the district court’s denial of Brown’s petition and affirm its

decision.

      AFFIRMED.




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