                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                       U.S. COURT OF APPEALS
                             No. 06-15574                ELEVENTH CIRCUIT
                                                             APRIL 17, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                                CLERK

                D. C. Docket No. 03-00264-CV-4-SPM-AK

ROBERT LEE WILLIAMS, IV,



                                                          Petitioner-Appellant,

                                  versus

WALTER A. MCNEIL, as Secretary Department of
Corrections State of Florida,

                                                        Respondent-Appellee.


                       ________________________

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

                              (April 17, 2009)

Before BIRCH, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
      Robert Lee Williams, IV, a Florida prisoner convicted of two DUI felony

charges, filed the present habeas corpus petition alleging, among other things, that

his trial counsel was constitutionally ineffective by failing to inform the trial court

that a juror improperly communicated with his family during his trial. The district

court denied his 28 U.S.C. § 2254 habeas petition, finding that his claim was

factually and legally meritless. For reasons set forth below, we affirm.

                                          I.

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

U.S.C. § 2254 and its factual findings 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 fact and law requiring

application of legal principles to the historical facts of the case.” Coulter v.

Herring, 60 F.3d 1499, 1503 (11th Cir. 1995).

       Under 28 U.S.C. § 2254(d), a federal court may not grant habeas relief on

claims that were previously adjudicated in state court unless the decision 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). Here, the district court apparently



                                            2
assumed that the state court failed to address Williams’s ineffective assistance

claim although he properly raised it. Therefore, the district court apparently

assumed that the present controversy falls outside of § 2254(d)(1)'s requirement

that we defer to state court decisions that are not contrary to, or an unreasonable

application of, clearly established federal law. Davis v. Sec’y for Dept. of

Corrections, 341 F.3d 1310, 1313 (11th Cir. 2003). Thus, the district court denied

Williams’ claim on the merits. On appeal, the State does not argue that there

should be deference to the state court decision. Accordingly, we too address the

merits without the ordinary deference.

      In order to prove ineffective assistance of counsel, a defendant must

overcome the strong presumption that his counsel’s performance was “within the

wide range of reasonable professional assistance. Strickland v. Washington, 466

U.S. 668, 688-89, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). If he

overcomes this presumption, the petitioner must also affirmatively prove that, but

for his counsel’s errors, there is a reasonable probability that the result of the

proceeding would have been different. Johnson v. Alabama, 256 F.3d 1156, 1177

(11th Cir. 2001) (requiring proof of attorney error so “egregious that the trial was

rendered unfair and the verdict rendered suspect.”).

      The district court correctly denied Williams’ §2254 petition. For purposes



                                            3
of this opinion, we accept Williams’ allegation that his attorney was aware of the

alleged juror contact to Williams’ family, and that the gist of the contact was as

follows:

      After the jury was seated at one point during a break, a black female
      juror came over to where we were standing and asked [petitioner’s]
      parents if he was their son. Then she said, “I know how it feels, my
      boy is in prison. You folks got nothing to worry about.”

The gist of Williams’ argument is that his trial attorney had an ethical duty to

report the juror contact to the court, and that his failure to do so constituted

ineffective assistance of counsel.

      We agree with the district court that Williams’ allegations failed to establish

deficient performance. The juror’s alleged communication to Williams’ family

obviously suggested to counsel that the juror was favorable to the defense. The

attorney’s failure to report same to the court may have violated an ethical duty to

the court, but it was not an action against the best interest of the client such as to

rise to the level of ineffective assistance of counsel. In a very similar situation, the

Third Circuit so held:

      If counsel breaches a duty to the court, this does not necessarily mean
      that the representation of his client was ineffective. Assuming that
      Joseph did violate some ethical duty to the court that would warrant
      disciplinary sanctions against him, that breach would provide no
      justification for a remedy that would, in effect, impose a sanction
      upon the government. Indeed, we believe that overturning a
      conviction in a situation of this kind on the basis of counsel’s breach

                                            4
      of an ethical duty to the court would create a perverse incentive for
      defense counsel to “build in” reversible error for their clients by
      violating their duties as officers of the court.

Government of Virgin Islands v. Weather Wax, 77 F.3d 1425, 1438 (3 rd Cir. 1996)

(emphasis in original). See also United States v. Jones, 597 F.2d 485, 489 n.3 (5 th

Cir. 1979) (“Another line of cases forcefully shows the relevance of a defendant’s

knowledge or lack of knowledge before the verdict of jury tampering. These cases

teach that a defendant cannot learn of juror misconduct during the trial, gamble on

a favorable verdict by remaining silent, and then complain in a post-verdict motion

that the verdict was prejudicially influenced by that conduct.”).

      Because we conclude that Williams cannot establish deficient performance,

we need not address the prejudice prong.

      Accordingly, the judgment of the district court is

      AFFIRMED.      1




      1
             Williams’s request for oral argument is denied.

                                              5
