                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-12850                ELEVENTH CIRCUIT
                                                           AUGUST 9, 2010
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

                D. C. Docket No. 06-00350-CV-J-32TEM

GARY KENNETH WILLIAMS,



                                                         Petitioner-Appellant,

                                 versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF FLORIDA,


                                                      Respondents-Appellees.


                      ________________________

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

                            (August 9, 2010)

Before EDMONDSON, BLACK and MARTIN, Circuit Judges.

PER CURIAM:
       Gary Kenneth Williams, a Florida state prisoner serving a 30-year sentence

following his conviction for aggravated battery upon an elderly victim, appeals the

district court’s denial of his pro se 28 U.S.C. § 2254 federal habeas petition. The

district court granted a certificate of appealability (COA) as to Williams’ claim the

inculpatory evidence adduced at trial was insufficient to support his conviction

because that evidence was based solely on the victim’s prior inconsistent

statements (insufficient-evidence claim). This Court then expanded the COA to

include Williams’ claim his trial attorney was ineffective for failing to object to the

State’s use of those prior inconsistent statements (ineffective-assistance claim).

After, review, we affirm the district court.1

                                                I.

       Williams first contends the district court erred in denying his

insufficient-evidence claim because, without the victim’s prior inconsistent

statements, the State could not have proven the elements of the offense. Williams




       1
           We note the State, on appeal, has changed its position on exhaustion as to the
insufficient-evidence claim. Specifically, while the State conceded exhaustion in the district
court, it now asserts that exhaustion is incomplete. Despite the State’s arguments, however, we
will examine the merits of Williams’ insufficient-evidence claim. The district court ruled on the
merits of the claim and exhaustion is not jurisdictional. See Mauk v. Lanier, 484 F.3d 1352,
1357 (11th Cir. 2007) (noting the exhaustion requirement is not jurisdictional). As the district
court did not examine the exhaustion issue because of the State’s apparent concession or waiver
of the issue, we decline to examine the exhaustion issue for the first time on appeal.

                                                2
asserts Supreme Court precedent holds a conviction based solely on such evidence

violates due process.

      When considering a district court’s denial of a 28 U.S.C. § 2254 petition, we

review the district court’s factual findings for clear error and its legal

determinations de novo. Owen v. Sec’y for Dep’t of Corr., 568 F.3d 894, 907 (11th

Cir. 2009), cert. denied, 130 S. Ct. 1141 (2010). We will not grant habeas relief on

a state prisoner’s claim that was denied on the merits in state court unless the state

court 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 the facts

in light of the evidence presented in the State court proceeding.’” Putman v. Head,

268 F.3d 1223, 1240-41 (11th Cir. 2001) (quoting 28 U.S.C. § 2254(d)).

      Jackson v. Virginia, 99 S. Ct. 2781 (1979), provides the federal due process

benchmark for evidentiary sufficiency in criminal cases. See Green v. Nelson, 595

F.3d 1245, 1252-53 (11th Cir. 2010). “[T]he relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson, 99 S. Ct. at 2789.




                                            3
       A conviction for aggravated battery upon an elderly victim under

§ 784.08(2)(A), Fla. Stat., requires proof the defendant intended to cause the

elderly victim great bodily harm, permanent disability, or permanent

disfigurement. See §§ 784.045(1)(a), 784.08, Fla. Stat.; Beard v. State, 842 So. 2d

174, 175-76 (Fla. 2d DCA 2003). Intent “must be determined by surrounding

circumstances.” Beard, 842 So. 2d at 176.

       The district court did not err in denying Williams’ insufficient-evidence

claim. Notably, even assuming prior inconsistent statements, standing alone, are

insufficient to sustain a criminal conviction,2 Williams’ conviction did not rest

solely on such evidence. In particular, the State introduced two admissions by

Williams that he had struck the victim. These admissions, along with evidence of

the victim’s injuries, the victim’s vulnerable age, and other surrounding

circumstances, sufficiently established each element of Williams’ offense.




       2
           We note that neither Jackson nor the other two Supreme Court cases cited by Williams
provide that prior inconsistent statements are insufficient to sustain a criminal conviction. See
Jackson, 99 S. Ct. at 2792 (holding the circumstantial evidence in the record supported a finding
of intent to kill); Fiore v. White, 121 S. Ct. 712, 713-14 (2001) (holding the petitioner’s
conviction for operating a hazardous waste facility without a permit violated due process
because the prosecution presented no evidence of failure to possess a permit); Bridges v. Wixon,
65 S. Ct. 1443, 1452 (1945) (holding only that a court may not admit hearsay for substantive, as
opposed to impeachment, purposes).

                                                4
                                           II.

      Williams next asserts the district court erred in denying his

ineffective-assistance claim. He asserts his trial attorney’s failure to object to the

State’s use of the victim’s prior inconsistent statements as the only substantive

evidence of guilt amounted to deficient performance. Further, according to

Williams, this deficient performance was prejudicial because his conviction rested

solely on those prior inconsistent statements.

      An ineffective-assistance claim presents a mixed question of law and fact

which we review de novo. Williams v. Allen, 598 F.3d 778, 788 (11th Cir. 2010).

To succeed on an ineffective-assistance claim, the petitioner must show his Sixth

Amendment right to counsel was violated because (1) his attorney’s performance

was deficient, and (2) the deficient performance prejudiced his defense. Strickland

v. Washington, 104 S. Ct. 2052, 2064, 2070 (1984). The first prong requires the

petitioner to show, “considering all the circumstances,” his attorney’s

“representation fell below an objective standard of reasonableness.” Id. at 2064-

65. Judicial review of an attorney’s performance “must be highly deferential,” and

the court must “eliminate the distorting effects of hindsight” and evaluate the

attorney’s performance from that attorney’s perspective at the time the challenged

conduct occurred. Id. at 2065. To meet the second prong, the petitioner must



                                            5
“affirmatively prove prejudice.” Id. at 2067. 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.” Id. at 2068.

      The district court did not err in denying Williams’ ineffective-assistance

claim. Specifically, Williams’ trial attorney was not deficient for failing to object

to the State’s use of the victim’s prior inconsistent statements as the only

substantive evidence of guilt. As discussed in issue one, there was other evidence

that sufficiently established Williams’ guilt, and such an objection would have

been meritless. Further, even assuming deficient performance, Williams suffered

no prejudice because the totality of the evidence before the jury renders it

reasonably improbable that, without the prior inconsistent statements, the jury

would have had a reasonable doubt respecting guilt.

      AFFIRMED.




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