                                                                  [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                  FILED
                                                      U.S. COURT OF APPEALS
                       ________________________         ELEVENTH CIRCUIT
                                                             12/08/99
                                                          THOMAS K. KAHN
                             No. 99-10002                     CLERK
                       ________________________

                    D. C. Docket No. 96-03288-CV-N-S


TIMOTHY FULLER,

                                                     Petitioner-Appellee,

                                  versus

ATTORNEY GENERAL OF THE STATE OF ALABAMA,

                                                     Respondent-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________
                           (December 8, 1999)


Before ANDERSON, Chief Judge, COX and HULL, Circuit Judges.

PER CURIAM:
      The district court granted relief to Timothy Fuller on his 28 U.S.C. § 2254

petition challenging an Alabama conviction for possession of cocaine. Alabama’s

attorney general appeals, and we reverse.

                                     Background

      Fuller was arrested in a drug raid on an apartment in Midfield, Alabama.

Two or three other men were in the apartment at the time. One of them jumped out

the back window, injuring himself, and another was caught rushing to the

bathroom with about 25 gm of cocaine.

      According to police testimony at trial, the raiders found Fuller seated on a

sofa in the sparsely furnished living room. Before him on a coffee table were

various tools of the drug trade, including baggies, wire, and a beeper. There was

also a set of keys that included a key to the apartment; the police attested that

Fuller admitted ownership of the keys, and they indeed returned all the keys but the

apartment key to him. In addition to this evidence of Fuller’s connection with the

apartment, the State introduced mail addressed to Fuller that was found in the

kitchen trash can.

      Fuller took the stand on his own behalf. He denied ownership of anything in

the apartment. He had been in the apartment, he explained, to pick up a car for his

employer, a garage, and he had only been in the apartment for about five minutes

before the raid. Fuller’s boss corroborated this testimony. Fuller also swore that



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the baggies were not on the coffee table until the police arrived and placed them

there.

         Fuller’s direct appeal from his cocaine-possession conviction failed. He

then sought postconviction relief under Alabama Rule of Criminal Procedure 32.

One of his claims was that his trial lawyer, Daniel Wainscott, did not provide

effective assistance of counsel because he failed to interview or call as a witness

Floyd Griffin. Griffin was another one of the men in the apartment at the time of

the raid; he pleaded guilty to possession of cocaine and was incarcerated at the

time of Fuller’s trial. According to Griffin’s affidavit, which Fuller filed in the

Rule 32 proceedings, Griffin would have testified that all of the drugs and tools of

the drug trade in the apartment belonged to him, and that Fuller arrived only

minutes before the raid on an innocent mission to get a car.

         The state courts rejected this claim. The trial court found that Wainscott’s

failure to call Griffin smacked of a tactical decision, and that Fuller had failed to

overcome the presumption of reasonableness afforded such decisions. The

Alabama Court of Criminal Appeals agreed, and it added a further reason for

denying relief: there was no reasonable probability that the jury would have

acquitted Fuller after hearing Griffin’s testimony, both because Griffin was, as a

convict, incredible and because by saying the baggies were his, he would have




                                            3
contradicted Fuller’s implication that the police had planted the baggies on the

coffee table.

      Twice rebuffed in state court, Fuller filed this § 2254 petition in December

1996, after the effective date of the Anti-Terrorism and Effective Death Penalty

Act of 1996 (AEDPA),1 again asserting this ineffective-assistance-of-counsel

claim. This time, it fell on more receptive ears. On a magistrate judge’s

recommendation, the district court refused to defer to the state-court findings of

fact because the state court failed to hold a hearing. It then ordered an evidentiary

hearing. Notwithstanding 28 U.S.C. § 2254(d), which requires deference to most

state-court findings of fact and conclusions of law,2 the district court concluded

that Wainscott provided ineffective assistance and granted the writ.




      1
                Pub. L. No. 104-132, 110 Stat. 1214 (1996).
      2
                To quote:

                (d) An application for a writ of habeas corpus on behalf of a person
                in custody pursuant to the judgment of a State court shall not be
                granted with respect to any claim that was adjudicated on the merits
                in State court proceedings 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).

                                                 4
      The state appeals, arguing that the state courts were right and that the federal

courts must defer to them. We review de novo the district court’s conclusions of

law and mixed conclusions of law and fact. See Allen v. Thomas, 161 F.3d 667,

670 (11th Cir. 1998).

                                     Discussion

      To prove ineffective assistance of counsel, Fuller has to show both that his

counsel performed deficiently and that there is a reasonable probability that the

outcome would have been different but for the deficient performance. See

Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068

(1984). Whether Fuller has satisfied the second element is a mixed question of fact

and law. See id. at 698, 104 S. Ct. at 2070. The Alabama Court of Criminal

Appeals resolved this question against Fuller.

      Federal courts owe the court of criminal appeals’ conclusion a measure of

deference under the post-AEDPA version of § 2254(d). See 28 U.S.C. §

2254(d)(1) (as amended by Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218

(1996)). How much deference, though, is not a completely settled question of law.

This circuit has prescribed a standard based on the statute. See Neelley v. Nagle,

138 F.3d 917, 924 (11th Cir. 1998) (adopting an error-not-debatable-among-

reasonable-jurists standard for mixed questions of fact and law). But the Supreme

Court has granted certiorari to consider, and presently has under submission, a case



                                          5
presenting the question of § 2254(d)(1)’s import. See Williams v. Taylor, 119 S.

Ct. 1355 (1999) (grant of certiorari in part to address Fourth Circuit’s construction

of § 2254(d)(1)).

      Rather than build on shifting sand, we conclude here that even if we were

applying § 2254(d) in its pre-AEDPA form — under which we owed no deference

at all to state-court conclusions on mixed questions of law and fact,3 although we

respected record-supported state fact-finding4 — we would still have to reverse the

district court. The court of criminal appeals found, and the record implies, that

Griffin’s story undermined Fuller’s testimony that the police placed the baggies on

the table in front of him. The state court also found, with record support from

Griffin’s affidavit, that Griffin was convicted for drug possession for his actions in

the same apartment Fuller was in; thus, the jury could well have viewed Fuller as a

bird of the same feather. Finally, the state court found, again with support from

Griffin’s affidavit, that Griffin was a convict offering exculpatory testimony to a

companion at no cost to himself. That fact, as the state courts reasonably noted,

cast a significant cloud on Griffin’s potential credibility before the jury. All of

these circumstances persuade us that there is no reasonable probability that, but for

the lack of Griffin’s testimony, the jury would have acquitted Fuller. Fuller thus



      3
             See Horton v. Zant, 941 F.2d 1449, 1461 (11th Cir. 1991).
      4
             See Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998).

                                             6
did not satisfy Strickland’s prejudice prong, and he was not entitled to relief on his

Strickland claim.

                                     Conclusion

      For the foregoing reasons, we reverse the district court’s grant of relief.

      REVERSED.




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