            Case: 14-11351    Date Filed: 02/03/2016    Page: 1 of 11


                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 14-11351
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 6:12-cv-01217-GKS-GJK



ANTHONY WILLIAMS,

                                                              Petitioner-Appellant,

                                     versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                          Respondents-Appellees.

                         ________________________

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

                               (February 3, 2016)

Before WILLIAM PRYOR, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:

     Anthony Williams, a Florida prisoner, appeals the denial of his petition for a
              Case: 14-11351     Date Filed: 02/03/2016   Page: 2 of 11


writ of habeas corpus. 28 U.S.C. § 2254. We issued a certificate of appealability to

address Williams’s argument that “he was denied his Sixth Amendment right to

counsel when his counsel allegedly dozed or slept during a part of [his] trial.”

Because it was not an unreasonable application of clearly established federal law

for the state trial court to conclude that Williams was not prejudiced by counsel

“[falling] asleep a couple of times” while the state replayed a recording of an

interview that was cumulative to earlier testimony from the interviewee, we affirm.

                                I. BACKGROUND

      We divide the discussion into three parts. First, we discuss Williams’s

indictment and his trial. Second, we discuss the unsuccessful state postconviction

challenges filed by Williams. Third, we discuss the denial of Williams’s federal

petition for a writ of habeas corpus.

                          A. Williams’s Indictment and Trial

      When Austin Joseph Paine intercepted burglars in his home, they shot and

killed him. Chad Michael Leon afterward overdosed on morphine and checked

himself into a hospital, where he implicated himself, Williams, and Randy Carter

Jr. in Paine’s murder. Leon later showed officers where in the ocean he had

discarded a revolver and a semiautomatic firearm used by Williams and Carter.

      A Florida grand jury indicted Williams, Carter, and Leon for first degree

murder and for armed burglary. Leon pleaded guilty to the lesser crimes of second-


                                          2
             Case: 14-11351     Date Filed: 02/03/2016   Page: 3 of 11


degree murder and armed burglary.

      At trial, the state introduced testimony and forensic evidence that connected

Williams to the crimes. Jarod Parrish testified that he introduced Williams to

Carter and Leon and overheard the three men planning the burglary at a bar and at

his house. Joshua Bartman testified that he saw Williams and Carter with a .38

caliber revolver and a nine millimeter semiautomatic handgun a few days before

the murder. Carter’s mother testified about renting a car for Carter, meeting

Williams in Pennsylvania, Williams’s relocation to the Carters’ home, and

Williams’s exodus after the murder. Paine’s girlfriend described how Paine

bounded from bed after hearing the sound of glass breaking and a voice near a

sliding door outside their bedroom, and then Rachel Vargas testified that she rented

a hotel room on the night of the murder at the behest of Williams and Parrish with

money that Williams provided. Leon testified about meetings with Williams and

Carter; a botched attempt to burgle Paine’s home; Williams’s and Carter’s

admissions to shooting Paine; his role as the getaway driver; his disposal of

Williams’s revolver and Carter’s semiautomatic handgun; and his interview with

Mike Spadafora, an agent of the Brevard County Sheriff’s Office.

      Defense counsel questioned every witness. Counsel cross-examined Parrish

and Paine’s girlfriend about inconsistencies in their testimonies, and counsel

elicited from Carter’s mother that Williams planned to return to Pennsylvania


                                          3
              Case: 14-11351     Date Filed: 02/03/2016   Page: 4 of 11


before the murder occurred and from Vargas that she never heard Williams or his

cohorts discuss a burglary before asking her to rent the hotel room. Defense

counsel objected repeatedly to Bartman’s and Leon’s testimonies, and the trial

court allowed defense counsel to question Leon outside the presence of the jury

before allowing him to testify about his conversations with Parrish.

      Agent Spadafora authenticated the recording of Leon’s interview and the

state offered the recording as a prior consistent statement. Defense counsel

objected and requested that the trial court examine the recording and allow him to

question Leon without the jury present, but counsel later withdrew the objection.

When questioned, Williams verified that he agreed with counsel’s decision.

      The prosecutor played the recording of Leon’s interview, which consumed

about 71 pages of the trial transcript. When the state turned on the audiotape,

defense counsel complained that he couldn’t “hear it over here.” After the

recording ended, defense counsel immediately cross-examined Agent Spadafora.

The prosecutor requested a five minute break and defense counsel interjected, “I

need to take a break; I fell asleep a couple of times.”

      The state introduced testimony from its experts and a second agent of the

Brevard County Sheriff’s Office. A forensic expert testified about discovering

Paine’s DNA on the armrest, inside the driver’s door, and on a seatbelt in the back

of the rental vehicle. On cross-examination, the forensic expert acknowledged that


                                           4
              Case: 14-11351     Date Filed: 02/03/2016    Page: 5 of 11


he had excluded Williams as a contributor of the DNA found in Paine’s fingernail

clippings. After a latent print expert testified about matching Williams’s left palm

print and thumb print to a handprint discovered on the hood of the rental vehicle,

defense counsel elicited from the expert that she had compared the handprint to

only four samples. A firearms expert testified that a bullet discovered in the rental

car matched ammunition that could be used in a nine millimeter pistol and that two

of the three bullets extracted from Paine were fired from the same gun, and on

cross-examination, the expert acknowledged that it was common to find bullets

with similar class characteristics in semiautomatic weapons and revolvers and that

she could not determine whether the bullets extracted from Paine were shot from

the same clip. Over defense counsel’s objections, Agent Gary Harrell testified that

he interviewed Carter and Leon and that Leon admitted to driving the getaway car

and discarding the murder weapons. On cross-examination, Agent Harrell

acknowledged that Carter did not implicate Williams.

      Defense counsel argued about inconsistencies in the evidence. Defense

counsel recalled Leon and identified discrepancies in the statements that he made

to different officers. And during closing statements, defense counsel argued that

Leon’s statements conflicted with the forensic evidence.

      The jury found Williams guilty of first degree felony murder and armed

burglary of a dwelling. Later, the trial court sentenced Williams to imprisonment


                                          5
              Case: 14-11351      Date Filed: 02/03/2016    Page: 6 of 11


for life.

       Williams, assisted by new counsel, argued on direct appeal that the trial

court erred by denying his motion to suppress. The Fifth District Court of Appeal

affirmed Williams’s conviction and certified a question involving the right to

counsel during interrogation to the Supreme Court of Florida. Williams v. State, 38

So. 3d 188, 190–94 (Fla. Dist. Ct. App. 2010). That court “decline[d] to exercise

[its] jurisdiction” and denied summarily Williams’s petition for review. Williams v.

State, 39 So. 3d 1266 (Fla. 2010).

                B. Williams’s Unsuccessful State Postconviction Filings

       Williams petitioned a state appellate court to issue a writ of habeas corpus.

Williams argued that his appellate counsel should have argued that trial counsel

was ineffective for falling asleep during the trial. The Fifth District Court denied

Williams’s petition summarily. Williams v. State, No. 5D11-787 (Fla. Dist. Ct.

App. June 1, 2011).

       Williams next moved for state postconviction relief, in part, based on the

same claim of ineffectiveness of trial counsel. See Fla. R. Crim. P. 3.850. The trial

court denied Williams relief under Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052 (1984). Although defense counsel had “remark[ed] on the record that he

had fallen asleep,” the trial court found that “just two pages earlier . . . he [had

been] actively cross-examining a State’s witness.” After a careful examination of


                                            6
              Case: 14-11351      Date Filed: 02/03/2016     Page: 7 of 11


the trial transcript, the trial court found “it [was] clear that throughout the entire

trial, defense counsel actively and vigorously cross-examined each of the State’s

witnesses, asking questions relevant to the testimony they had just offered,” “[h]e

interjected appropriate objections, [and] he seemed to be actively engaged in the

entire process.” Because Williams did not “point to any specific portion of the trial

or any specific piece of testimony or evidence that counsel overlooked as the result

of his alleged sleeping,” the trial court ruled that Williams “fail[ed] to allege or

demonstrate prejudice on [his] claim.” The state appellate court affirmed without

opinion. Williams v. State, 90 So. 3d 304 (Fla. Dist. Ct. App. 2012).

              C. Williams’s Federal Petition for a Writ of Habeas Corpus

      Williams filed in the district court a petition for a writ of habeas corpus and

argued that he was denied the assistance of counsel because he was “sleeping

through the trial.” See 28 U.S.C. § 2254. The district court determined that United

States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984), did not control the analysis

of Williams’s claim because the record did not reflect that “counsel slept through a

substantial portion of the trial.” And the state court did not apply Strickland

unreasonably, the district court ruled, because Williams “ha[d] not shown that

counsel’s actions resulted in prejudice.” The district court based its decision on

factual findings that, “[a]lthough defense counsel indicated that he fell asleep for a

portion of the time period during which the taped statement was played,” Williams


                                            7
              Case: 14-11351     Date Filed: 02/03/2016    Page: 8 of 11


failed to “point to any other instance of counsel sleeping during the trial,” and that

a “review[] [of] the entire record” revealed that “defense counsel appear[ed] to

have been alert during trial, properly respond[ed] to objections and questions, and

cross-examin[ed] each witness.”

                          II. STANDARDS OF REVIEW

      We review de novo the denial of a petition for a writ of habeas corpus that

alleges ineffective assistance of counsel. Williamson v. Fla. Dep’t of Corr., 805

F.3d 1009, 1016 (11th Cir. 2015). A petitioner is entitled to a writ of habeas corpus

only if the state court reached a decision that was “contrary to, or involved an

unreasonable application of, clearly established Federal law.” 28 U.S.C.

§ 2254(d)(1). A state court makes an “unreasonable application” of clearly

established federal law if the court “identifies the correct governing legal principle

from [the] decisions [of the Supreme Court] but unreasonably applies that principle

to the facts of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct.

2527, 2534–35 (2003) (internal quotations and citation omitted). To establish an

unreasonable application of federal law, a petitioner “must show that the state

court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 103, 131 S. Ct. 770, 786–87 (2011).


                                           8
              Case: 14-11351     Date Filed: 02/03/2016   Page: 9 of 11




                                 III. DISCUSSION

      Williams maintains that he is entitled to habeas corpus relief. Defense

counsel’s admission that he fell asleep twice while the jury listened to Leon’s

interview, Williams argues, constituted a denial of counsel and was prejudicial per

se under Cronic. Because the state court reasonably evaluated Williams’s claim

under Strickland and Williams does not argue that he was prejudiced by counsel’s

conduct, we affirm the denial of Williams’s petition for a writ of habeas corpus.

      Williams failed to establish that the state court unreasonably applied clearly

established federal law. “[C]learly established Federal law for purposes of

§ 2254(d)(1) includes only the holdings . . . of [the Supreme] Court’s decisions.”

Woods v. Donald, 575 U.S. __, 135 S. Ct. 1372, 1376 (2015) (internal quotation

marks and citation omitted). The Supreme Court has not addressed whether the

rule in Cronic applies if counsel dozes twice while a recording of an interview that

is cumulative of earlier testimony and unobjectionable is played for the jury.

      Williams cannot establish that the refusal of the state court to apply Cronic

to his claim of ineffective assistance “was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement,” Harrington, 562 U.S. at 103, 131 S. Ct. at 786–87.

A defendant is entitled to a presumption of prejudice if defense counsel’s conduct


                                           9
               Case: 14-11351     Date Filed: 02/03/2016    Page: 10 of 11


resulted in a “complete denial of counsel . . . at a critical stage” of trial or an

“entire[] fail[ure] to subject the prosecution’s case to meaningful adversarial

testing,” Cronic, 466 U.S. at 659–60, 104 S. Ct. at 2047. The Supreme Court has

held that Strickland, not Cronic, applies when “counsel failed to oppose the

prosecution . . . [only] at specific points.” Bell v. Cone, 535 U.S. 685, 697, 122 S.

Ct. 1843, 1851 (2002). And the Supreme Court in Woods held that it was not

contrary to or an unreasonable application of clearly established federal law for a

state court to apply Strickland to a claim involving the absence of defense counsel

from the courtroom for ten minutes while government witnesses testified about

other defendants. Woods, 135 S. Ct. 1377–78. In the absence of controlling

precedent, fairminded jurists could disagree about whether a defendant is entitled

to a presumption of prejudice because defense counsel, who was otherwise actively

engaged in the trial, “fell asleep a couple of times” while the jury listened to a

recorded interview that was cumulative to testimony earlier provided by the

interviewee.

       Williams has abandoned any challenge that he could have made to the

determination that he was not prejudiced by counsel’s conduct. The state court

ruled that Williams failed to “demonstrate prejudice,” see Strickland, 466 U.S. at

694, 104 S. Ct. at 2068, and Williams makes no argument about that ruling.

Because “[i]ssues not clearly raised in the briefs are considered abandoned,”


                                            10
            Case: 14-11351    Date Filed: 02/03/2016   Page: 11 of 11


Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995), we need not address

whether Williams was prejudiced by counsel’s sleeping.

                              IV. CONCLUSION

      We AFFIRM the denial of Williams’s petition for a writ of habeas corpus.




                                       11
