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                                                                                [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-15779
                              ________________________

                      D.C. Docket No. 2:12-cv-03974-RDP-TMP



DURRELL BESTER,

                                                                      Petitioner-Appellant,

                                           versus

WARDEN,
ATTORNEY GENERAL OF THE STATE OF ALABAMA,

                                                                  Respondents-Appellees.

                              ________________________

                     Appeal from the United States District Court
                        for the Northern District of Alabama
                            ________________________

                                   (September 2, 2016)

Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and LAMBERTH, *
District Judge.

ED CARNES, Chief Judge:
       *
       Honorable Royce C. Lamberth, United States District Judge for the District of
Columbia, sitting by designation.
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      Durrell Bester appeals the district court’s denial of his 28 U.S.C. § 2254

petition, which challenged his Alabama convictions for trafficking in cocaine,

failure to affix a tax stamp, and possession of drug paraphernalia. Bester contends

that his trial counsel rendered ineffective assistance by failing to request that the

jury be given a no-adverse-inference jury instruction, which would have told the

jurors that they could not infer from his failure to testify that he was guilty.

                                           I.

      On May 24, 2009, Sergeant Hattie French and Deputy Jude Washington of

the Jefferson County Sheriff’s Office were conducting surveillance on Bester’s

home in preparation for the execution of a search warrant when they saw two men

park a blue pickup truck in front of the house. After one of the men got Bester

from the house, he and Bester began throwing bags and luggage into the back of

the truck. Once the truck was loaded, Bester, carrying a white bag, got in the front

and the three men drove away. Sergeant French and Deputy Washington notified

some other officers and then followed the truck to an apartment complex where

Deputy Mark Eaton met up with them.

      At the apartment complex Bester and one of the other men got out of the

truck. Each was carrying a white bag. Bester’s bag was small and looked like a

plastic grocery bag, while the other man’s was larger and looked like a garbage

bag. They entered an apartment, which belonged to Bester’s mother. The men


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stayed in the apartment for a few minutes before leaving without the bags and

driving away in the same truck.

       Sergeant French and Deputy Washington stayed at the apartment complex

while Deputy Eaton and some other officers followed the truck. The officers at the

apartment complex obtained from Bester’s mother written consent to search her

apartment. She took them into a bedroom and told them that Bester had put his

bag in a corner behind a stereo. She also gave them a handwritten statement that

read: “I saw my son come home with bags + left + two white gu[y]s were with

him + he left come in [sic] with the white bag behind the [boom]box.”1

       Inside the small white grocery bag that they found behind the boombox, the

officers found digital scales and two smaller bags, one containing 43.5 grams of

powder cocaine and one containing 26.1 grams of crack cocaine. The officers also

found in the bedroom marijuana and the large white garbage bag, which itself

contained scales, baggies, and a glass Pyrex cup with residue in it.

       In the meantime, some officers had pulled over the truck Bester and his two

companions were in. Deputy Eaton conducted a dog sniff with his K-9 partner,

Pepsi, who indicated the presence of drugs in a black suitcase in the bed of the

truck. When Deputy Eaton searched the suitcase, he found “pieces of torn off


       1
         At trial Bester’s mother denied telling the officers that Bester had put the small white
grocery bag in the bedroom, saying that Bester’s companion was the one who had put it there.
The State impeached her denial with her written statement.
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Brillo pad, syringes, an ash tray, a pill splitter and a push rod that was burnt on the

end,” which is “typical of use in a crack pipe.” Bester later admitted to Deputy

Eaton that the suitcase was his. After conducting the car stop, Deputy Eaton went

back to Bester’s house and executed the search warrant. There, he found small

bags containing what appeared to be cocaine residue and a set of digital scales.

      Throughout Bester’s trial for trafficking in cocaine, failure to affix a tax

stamp, and possession of drug paraphernalia, the court permitted members of the

jury to ask the witnesses questions. While Deputy Eaton was on the stand, several

jurors asked him about the suitcase and the small white grocery bag. The trial

court permitted Deputy Eaton to explain to the jury that he did not have the

suitcase fingerprinted because Bester admitted that it was his, but the court refused

to let Deputy Eaton answer questions from the jury about the small white grocery

bag. Jurors were allowed to ask Sergeant French questions about who had carried

which bag into Bester’s mother’s apartment. Her answers incriminated Bester.

      Bester did not testify in his own defense at trial. His attorney did not ask the

trial court to give the jury a no-adverse-inference instruction. While the trial court

in opening and closing instructions did instruct the jury that it had to presume

Bester’s innocence, that the State had the burden of proving his guilt beyond a

reasonable doubt, and that Bester did not have to present any witnesses in his own

defense, it did not give a no-adverse inference instruction. The jury found Bester


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guilty of all three charges, and the trial court sentenced him to life imprisonment

without the possibility of parole for the drug-trafficking offense, 15 years

imprisonment for the failure-to-affix-a-tax-stamp offense, and 12 months in jail for

the drug-paraphernalia offense.

                                          II.

      In 2010 Bester filed a pro se Alabama Rule of Criminal Procedure 32

petition for post-conviction relief alleging, among other claims, that his trial

counsel was ineffective for failing to request a no-adverse-inference instruction.

Bester obtained habeas counsel, who represented him at an evidentiary hearing in

state court. After the evidentiary hearing the state habeas trial court denied

Bester’s Rule 32 petition, stating:

      [I]t is alleged that trial counsel failed to request or object to the Court
      not giving a jury instruction on the Petitioner’s failure to testify.
      There was no request made to the Court to give the instruction
      regarding a Defendant who does not testify during his trial and
      therefore the Court did not have an opportunity to rule on that issue.
      Therefore, the Court finds that [this] issue is without merit . . . .

      Bester, still represented by habeas counsel, appealed the state habeas trial

court’s denial of his Rule 32 petition. But habeas counsel abandoned Bester’s no-

adverse-inference-instruction claim, prompting Bester to file a pro se brief raising

that claim. The Alabama Court of Criminal Appeals permitted Bester’s habeas

counsel to withdraw and allowed Bester to proceed pro se, but it refused to

consider his pro se brief. In its order affirming the state habeas trial court’s denial
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of his Rule 32 petition, the Alabama Court of Criminal Appeals considered only

the claims that Bester’s attorney had raised in the brief he filed before being

dismissed as counsel. Bester applied for rehearing, arguing that the appellate court

had not addressed his claim that trial counsel was ineffective for failing to request

the no-adverse-inference instruction, but the court denied his application. The

Alabama Supreme Court denied Bester’s petition for certiorari, in which he had

again argued that the Alabama Court of Criminal Appeals failed to address his no-

adverse-inference-instruction claim.

                                          III.

      In 2012 Bester filed pro se in federal district court a § 2254 petition for writ

of habeas corpus. He claimed, among other things, that his trial counsel had

rendered ineffective assistance by failing to request a no-adverse-inference

instruction and that failure had prejudiced him because “it is more likely than not

that the jury assigned culpability to him by assuming . . . from his failure to testify

that petitioner had something to hide, and/or otherwise that he was guilty.” A

magistrate judge, while acknowledging that ineffective assistance of counsel claim,

apparently conflated it with a separate claim that trial counsel had not permitted

Bester to testify. Without holding an evidentiary hearing, the magistrate judge

recommended denying both claims because:

      The [state habeas] trial court heard the petitioner’s claim that he
      wanted to testify but was not allowed to, and his attorney’s testimony
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      that he advised the petitioner not to testify, even though he had a
      right to testify, and that the petitioner chose to accept the attorney’s
      advice. Under questioning, the petitioner admitted that his attorney
      advised him not to testify and that he thought his attorney was acting
      in his best interest. The record developed at the trial court’s Rule 32
      hearing does not demonstrate that the court made any unreasonable
      determination of any facts in light of the evidence presented. Neither
      has petitioner demonstrated that the trial court failed to follow any
      clearly established federal law with respect to his right to testify.

Despite Bester’s objection that the magistrate judge’s report and recommendation

did not address his claim that trial counsel was ineffective for failing to request a

no-adverse-inference instruction, the district court adopted the report, agreed with

the recommendation, and denied Bester’s § 2254 petition. This Court granted

Bester a certificate of appealability on the following issue:

      Whether [Bester’s] trial counsel rendered ineffective assistance of
      counsel by failing to request a no-adverse-inference jury instruction
      regarding petitioner’s right not to testify. See Carter v. Kentucky, 450
      U.S. 288, 101 S. Ct. 1112 (1981).

                                          IV.

      We review de novo a district court’s denial of a § 2254 petition. Ferguson v.

Sec’y, Fla. Dep’t of Corr., 716 F.3d 1315, 1330 (11th Cir. 2013). Under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court

cannot grant habeas relief on a claim adjudicated on the merits in state court unless

the state court’s decision (1) “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) “was based on an unreasonable determination of
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the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d). In this case, it appears that none of the state courts adjudicated

on the merits Bester’s claim that trial counsel was ineffective for failing to request

the no-adverse-inference instruction.

      “When a state court rejects a federal claim without expressly addressing that

claim, a federal habeas court must presume that the federal claim was adjudicated

on the merits — but that presumption can in some limited circumstances be

rebutted.” Johnson v. Williams, 568 U.S. __, 133 S. Ct. 1088, 1096 (2013). For

example, the Supreme Court suggested in Johnson that “[w]hen the evidence leads

very clearly to the conclusion that a federal claim was inadvertently overlooked in

state court, § 2254(d) entitles the prisoner to an unencumbered opportunity to make

his case before a federal judge.” Id. at 1097; Childers v. Floyd, 736 F.3d 1331,

1334 (11th Cir. 2013) (en banc) (“To determine whether the presumption has been

rebutted, we look to the state court’s decision and the record in the case to

determine whether the evidence leads very clearly to the conclusion that the federal

claim was inadvertently overlooked in state court.”) (footnote, quotation marks,

and alteration omitted). The presumption has been rebutted in this case.

      The Alabama Court of Criminal Appeals, while permitting Bester to proceed

pro se, rejected his pro se brief — not the arguments in his brief, but the brief

itself — and considered only the claims that his (dismissed) habeas counsel had


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raised, which did not include a claim of ineffective assistance for failing to request

a no-adverse-inference instruction. While the state appellate court may not have

“inadvertently overlooked” Bester’s claim, it did not adjudicate the claim on the

merits either. See Johnson, 133 S. Ct. at 1097. Neither did the state trial court.

      In the state collateral proceeding, the trial court acknowledged Bester’s

claim that trial counsel was ineffective for failing to request a no-adverse-inference

instruction. But the reason for its denial of the claim, paradoxically, was that the

trial court had not had the opportunity to decide whether to give the instruction

because counsel had not requested it. Which was the point of the ineffective

assistance of counsel claim, a point that the state court’s circular reasoning missed.

In the terms of the Johnson decision, the state trial court “inadvertently

overlooked” the actual claim, failing to rule on the merits of it. Johnson, 133 S. Ct.

at 1097. We therefore must decide the claim de novo. See id. at 1096.

                                          V.

      The Supreme Court has held that “a criminal trial judge must give a ‘no-

adverse-inference’ jury instruction when requested by a defendant to do so.”

Carter, 450 U.S. at 300, 101 S. Ct. at 1119. The right to such an instruction is

necessary to protect “[t]he freedom of a defendant in a criminal trial to remain

silent unless he chooses to speak in the unfettered exercise of his own will.” Id. at

305, 101 S. Ct. at 1121 (quotation marks omitted). That is because “the failure to


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limit the jurors’ speculation on the meaning of that silence, when the defendant

makes a timely request that a prophylactic instruction be given, exacts an

impermissible toll on the full and free exercise of the privilege.” Id. (emphasis

added). But the Supreme Court has also said in dicta that “[i]t may be wise for a

trial judge not to give [a no-adverse-inference jury] instruction over a defendant’s

objection.” Lakeside v. Oregon, 435 U.S. 333, 340, 98 S. Ct. 1091, 1095 (1978).

Neither the Supreme Court nor this Court has ever held that a trial court must give

a no-adverse-inference instruction if one is not requested. Nor has either court

held that it is ineffective assistance of counsel not to request such an instruction.

      Bester raises that ineffective assistance claim, contending trial counsel was

ineffective for failing to request a no-adverse-inference instruction. To establish

his claim of ineffective assistance, he must show that counsel’s performance was

deficient and that the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Counsel performs

deficiently if “in light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance.” Id. at 690,

104 S. Ct. at 2066. A counsel’s deficient performance prejudices the defense if

“there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068.

“Because both parts of the test must be satisfied in order to show a violation of the


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Sixth Amendment, the court need not address the performance prong if the

defendant cannot meet the prejudice prong, or vice versa.” Holladay v. Haley, 209

F.3d 1243, 1248 (11th Cir. 2000) (citation omitted). We will take advantage of

that option and forego deciding whether trial counsel performed deficiently by not

requesting the no-adverse-inference instruction. We can skip over that issue

because Bester has not established a reasonable probability that the result of his

proceeding would have been different if the instruction had been requested and

given.

         Bester argues that the evidence that he possessed cocaine and drug

paraphernalia was “not overwhelming” and that the jury’s questions about the

small white plastic bag show that it had doubts about whether he possessed the

items inside it. He relies heavily on this Court’s decision in United States v.

Burgess, 175 F.3d 1261 (11th Cir. 1999). In that case, the defendant requested a

no-adverse-inference instruction but the district court failed to give it. Id. at 1263–

64. While deliberating, the jury asked the court for further instruction about the

law on Burgess’ defense of entrapment and stated that “[t]here is some reasonable

doubt that the Defendant would have [committed the crime] if the police did not

send [him an email], is this nothing more than the Govt. offering an opportunity.”

Id. at 1268. In the end the jury convicted Burgess. Id. at 1264. On direct appeal

we reversed his convictions because the evidence against Burgess was not


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overwhelming, especially in light of the jury question explicitly stating that it had

reasonable doubt about the sufficiency of the evidence on the entrapment issue. Id.

at 1267–69.

      Bester’s reliance on the Burgess decision is misplaced. Even if the facts in

this case were identical to those in Burgess (which they are not), the Burgess

decision would not establish that Bester has shown the necessary prejudice because

that case and this one are governed by different burdens of persuasion and different

prejudice standards. In Burgess we held that the district court’s failure to give a

no-adverse-inference instruction when the defendant had requested one is

constitutional error, id. at 1265–66, a “classic trial error,” id. at 1266 (quotation

marks omitted), subject to “constitutional harmless error” review. Id. at 1267.

And “before a federal constitutional error can be held harmless, the court must be

able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman

v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967). The government, not the

defendant, bears the burden of establishing that a constitutional error is harmless.

What the Burgess decision holds is that where the evidence against the defendant

was not overwhelming and, after all of the evidence was in, the jury stated it had a

reasonable doubt about guilt, the government has not carried its burden of proving

beyond a reasonable doubt that the failure to give the instruction was not harmless.

Burgess, 175 F.3d at 1267–69.


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      Bester, on the other hand, has asserted a claim of ineffective assistance in a

§ 2254 proceeding, so the burden on the prejudice or harm issue is on the other

side of the courtroom. The state does not have the burden of showing that any

error was harmless beyond a reasonable doubt, or harmless by any standard at all.

Instead, Bester has the burden of establishing prejudice under the Strickland

standard. See Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1256

(11th Cir. 2012) (“To succeed on his ineffective assistance of counsel claim, [the

petitioner] has the burden of showing [deficient performance and prejudice] under

Strickland.”). He must show that there is a “reasonable probability that, but for

counsel’s [claimed] unprofessional errors, the result of the proceeding would have

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

      Bester has not carried his burden of showing prejudice. The evidence

against him was overwhelming and the jurors’ mid-trial questions did not show

that they had doubts about this guilt. Sergeant French testified that she saw Bester

and a companion carrying the white grocery bag and the black suitcase from his

house to the truck, and both Sergeant French and Deputy Eaton testified that they

saw Bester carrying the small white grocery bag from the truck to his mother’s

apartment. Bester’s mother gave the officers a written statement that Bester had

brought a white bag into her house and placed it behind the boombox, where the

officers found the small white grocery bag. In addition to Bester’s mother’s


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written statement, three officers testified that she had told them that her son had

brought a small white grocery bag into her apartment. That bag contained digital

scales, a bag of powder cocaine, and a bag of crack cocaine.

      As for the black suitcase, Deputy Eaton found it in the bed of the truck

Bester was riding in when the police pulled him and his companions over. Deputy

Eaton’s K-9 partner Pepsi indicated the presence of drugs in the black suitcase.

The suitcase contained “an ash tr[a]y, a pill splitter, three syringes, small pieces of

torn off Brillo pad, [and] a burn push rod, typical of use in a crack pipe,” which

Deputy Eaton testified were items “commonly used for the injection of drugs.”

And Deputy Eaton testified that Bester had admitted that the suitcase was his.

There was no evidence to refute or cast doubt on any of that testimony.

      Bester relies on the questions that several jurors asked during the trial about

the small white grocery bag that he carried into his mother’s apartment. He would

have us believe those questions show that the jury had “doubts about the

evidence.” We are not persuaded. Questions that the jury as a whole sends to the

judge during deliberations may indicate some doubt about the strength of the

evidence, as they did in the Burgess case. But in the unusual trial where individual

jurors are permitted to submit questions to clarify testimony while a witness is still

on the stand, juror questions will seldom indicate that the jury has doubts about

guilt. First, the questions come from individual jurors and not the jury as a whole.


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Second, when a question is allowed by the judge and answered by the witness, the

answer may well resolve any concern or doubt that the juror had. Third, even if a

question indicated some doubt in an individual juror’s mind at that point in the

trial, there is no way to know whether that doubt survived the presentation of other

evidence, the judge’s closing instructions to the jury, and the arguments of counsel.

In this case, the most that the jurors’ questions show is that at least some of them

were paying attention to the trial evidence and conscientiously attempting to clarify

any ambiguities in the evidence while they had the opportunity to do so.

      In light of the overwhelming evidence of his guilt, Bester has not carried his

burden of showing that the jury inferred his guilt because of the lack of a no-

adverse-inference instruction. He has not shown a “reasonable probability that . . .

the result of the proceeding would have been different” if counsel had requested

and the court had given a no-adverse-inference instruction. Strickland, 466 U.S. at

694, 104 S. Ct. at 2068.

                                               VI.

      At oral argument Bester asserted that he was entitled to an evidentiary

hearing on this claim. A hearing might arguably be relevant to the performance

deficiency issue in an ineffective assistance of counsel claim. But see Harrington

v. Richter, 562 U.S. 86, 109, 131 S. Ct. 770, 790 (2011) (“The Court of Appeals

erred in dismissing strategic considerations . . . as an inaccurate account of


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counsel’s actual thinking . . . . Strickland . . . calls for an inquiry into the objective

reasonableness of counsel’s performance, not counsel’s subjective state of mind.”);

Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc) (“The

reasonableness of a counsel’s performance is an objective inquiry. And because

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.”) (footnotes and citations omitted).

We have, however, skipped over the deficiency issue and affirmed the denial of the

claim because of Bester’s failure to show prejudice. It is difficult, if not

impossible, to imagine any facts outside the record that are relevant to the question

of whether there is a reasonable probability of a different result if a particular jury

instruction had been given. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366,

370 (1985) (explaining that, in an ineffectiveness case involving the alleged failure

of counsel to discover or present potentially exculpatory evidence, the prejudice

inquiry “will depend in large part on a prediction whether the evidence likely

would have changed the outcome of a trial”). Bester has not proffered any facts

that would be relevant to that issue in this case. That is enough, by itself, to rule

out an evidentiary hearing.

       And there is another reason to do so. Absent certain exceptions not

applicable here, a federal court may not hold an evidentiary hearing in a § 2254


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proceeding if the applicant failed to develop the factual basis for the claim in state

court proceedings. 28 U.S.C. § 2254(e)(2); Williams v. Taylor, 529 U.S. 420, 430,

120 S. Ct. 1479, 1487 (2000) (“If the prisoner has failed to develop the facts, an

evidentiary hearing cannot be granted unless the prisoner’s case meets the other

conditions of § 2254(e)(2).”). Bester has offered no justification for his failure

during the evidentiary hearing held in the state collateral proceeding to develop

whatever facts he thinks may be relevant to the prejudice issue. He is not entitled

to another shot at it in federal court. See 28 U.S.C. § 2254(e)(2).

      AFFIRMED.




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