                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                     FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              October 25, 2006
                             No. 05-16591                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                    D. C. Docket No. 04-00670-CV-B-S

DEMETRIUS EUGENE BERRY,



                                                          Petitioner-Appellant,

                                  versus

WARDEN FERRELL,
ATTORNEY GENERAL OF ALABAMA,


                                                      Respondents-Appellees.


                       ________________________

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

                            (October 25, 2006)

Before TJOFLAT, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
      Alabama state prisoner Demetrius Eugene Berry, proceeding pro se, appeals

the district court’s denial of his habeas corpus petition filed pursuant to 28 U.S.C.

§ 2254. We granted Berry a certificate of appealability regarding whether the state

court’s determination that counsel was not ineffective for failing to call a potential

alibi witness at trial was contrary to, or involved an unreasonable application of,

clearly established federal law.

      In his petition, Berry asserted he received ineffective assistance of counsel

because his trial attorneys failed to call a witness, Latonya James, in support of his

alibi defense. He stated prior to his trial he and his attorneys decided an alibi

defense would be his sole affirmative defense, and in their opening statement, the

attorneys told the jury about James and her testimony before deciding not to call

her. The state court denied Berry’s habeas petition, concluding the decision not to

call James was a strategic decision, and the district court concluded the state

court’s decision was not contrary to, or did not involve an unreasonable application

of, federal law.

      We review a district court’s grant or denial of a habeas corpus petition de

novo. McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005), cert. denied,

126 S. Ct. 1828 (2006). “The district court’s factual findings are reviewed for

clear error, while mixed questions of law and fact are reviewed de novo.” Id. “An



                                           2
ineffective assistance of counsel claim is a mixed question of law and fact subject

to de novo review.” Id.

       A federal court may issue a petition for habeas corpus relief only if 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 proceedings. 28 U.S.C. § 2254(d).1 Additionally, a state court’s factual

determinations are presumed correct unless rebutted by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

       Under the ‘contrary to’ clause, a federal habeas court may grant the
       writ if the state court arrives at a conclusion opposite to that reached
       by [the Supreme Court] on a question of law or if the state court
       decides a case differently than [the Supreme Court] has on a set of
       materially indistinguishable facts. The ‘contrary to’ clause suggests
       that the state court’s decision must be substantially different from the
       controlling legal precedent. A state court’s decision that applies the
       correct legal rule would not fit within the ‘contrary to’ clause even if
       the federal court might have reached a different result relying on the
       same law.

Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002) (quotations and

citations omitted).




       1
         Because Berry filed his federal habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996, the provisions of that act apply.

                                                3
       Under the ‘unreasonable application’ clause, a federal habeas court
       may grant the writ if the state court identifies the correct governing legal principle from [a S
applies that principle to the facts of the prisoner’s case. In deciding this issue, the
federal court should consider whether the state court’s application of the law was
objectively unreasonable and should not apply the subjective ‘all reasonable
jurists’ standard.

Id. at 1261 (quotations and citation omitted). “[W]hether a state court’s decision

was unreasonable must be assessed in light of the record the court had before it.”

Holland v. Jackson, 124 S. Ct. 2736, 2737-2738 (2004).

      “It is well established that the Supreme Court’s decision in [Strickland] is

the controlling legal authority to be applied to ineffective assistance of counsel

claims.” Wellington, 314 F.3d at 1260 (internal quotations omitted). To succeed

on a claim of ineffective assistance of counsel, a petitioner must show that (1) his

counsel’s performance was deficient; and (2) that the deficient performance

prejudiced his defense. Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984).

Under the performance prong, the relevant inquiry is whether counsel’s

representation was “objectively reasonable.” Crawford v. Head, 311 F.3d 1288,

1311 (11th Cir. 2002). “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Strickland, 104 S. Ct. at 2066. A petitioner can rebut this

presumption only by proving his attorney’s representation was unreasonable under

prevailing professional norms. Chandler v. United States, 218 F.3d 1305, 1314

                                           4
n.15 (11th Cir. 2000) (en banc). “Therefore, where the record is incomplete or

unclear about [counsel]'s actions, we will presume that he did what he should have

done, and that he exercised reasonable professional judgment.” Id. (quotations and

citation omitted). “[S]trategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support limitations on investigation.”

Strickland, 104 S. Ct. 2066.

      The petitioner’s burden of demonstrating prejudice is high. Under the
      prejudice prong, it is not enough for the defendant to show that the
      errors had some conceivable effect on the outcome of the proceeding.
      Instead, the petitioner must show that there is a reasonable probability
      that, but for counsel’s unprofessional errors, the result of the
      proceeding would have been different. A reasonable probability is a
      probability sufficient to undermine confidence in the outcome.

Wellington, 314 F.3d at 1260 (quotations and citations omitted).

      The state court’s determination that counsel was not ineffective for failing to

call a potential alibi witness at trial was not contrary to, or did not involve an

unreasonable application of, clearly established federal law. The state court

recognized Strickland was the controlling law with regard to Berry’s ineffective

assistance of counsel claim, and its decision was not contrary to Strickland.

Recognizing Berry had to show his counsel’s performance was deficient, the state



                                            5
court found his attorneys’ decision not to call James during his trial was a strategic

decision. Although Berry presented evidence regarding his attorneys’ initial

decision to pursue an alibi defense, the evidence does not clearly and convincingly

show the attorneys did not subsequently determine that it would be more beneficial

to Berry’s defense not to call James in light of the evidence presented during the

trial. As such, the court reasonably applied Strickland’s strong presumption of

effective performance and concluded that Berry failed to establish his ineffective

assistance claim.2

       AFFIRMED.




       2
           While its underlying facts may be similar, Lee v. Kemna, 122 S. Ct. 877 (2002), has no
bearing on the instant case as it considered a different unrelated issue. Lee also involved a
criminal defendant whose sole defense was an alibi defense. Id. at 880. Although Lee had three
alibi witnesses scheduled to testify on his behalf, he could not locate the witnesses when he
sought to present their testimony. Id. Lee requested a continuance so that he could locate the
witnesses; however, the trial court denied his motion. A jury convicted Lee, and the state
appeals court affirmed the trial court’s denial of his motion for a continuance, finding Lee had
not conformed with procedural rules regarding the requirements of a motion for a continuance.
Id. Unlike the instant case, the Supreme Court’s decision in Lee considered the issue of whether
the state ground indicated by the state appellate court for denying Lee’s claim was adequate to
preclude federal habeas corpus review. Id.

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