                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                           APRIL 16, 2009
                            No. 08-14268                 THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                  D. C. Docket No. 07-02283-CV-BE-S

DELVIN LENTER WILLIAMS,



                                                         Petitioner-Appellant,

                                 versus

COMMISSIONER RICHARD ALLEN,
THE ATTORNEY GENERAL OF THE STATE OF ALABAMA,


                                                      Respondents-Appellees.


                      ________________________

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

                             (April 16, 2009)

Before DUBINA, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
      Appellant Delvin Lenter Williams appeals the denial of his petition for a

writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 . We granted a certificate

of appealability to resolve whether, in light of Ferguson v. Culliver, 527 F.3d 1144

(11th Cir. 2008), the district court erred by relying solely on the state appellate

court’s findings, in lieu of reviewing the state trial records, to determine that:

(1) the trial court’s admission of the victim’s out-of-court statements did not result

in a denial of due process; (2) the trial court did not err in denying appellant’s

motion for judgment of acquittal; (3) trial counsel did not render ineffective

assistance in regard to his investigation of the credibility of two state witnesses and

his statements during closing argument; and (4) appellate counsel was not

ineffective for failing to raise a claim of ineffective assistance of trial counsel.

Williams argues that the district court violated Ferguson because it did not

consider the state court trial transcripts before evaluating these claims for habeas

relief. He also contends that he should receive an evidentiary hearing.

      We review a district court’s denial of habeas corpus relief de novo. Gamble

v. Sec’y, Fla. Dep’t of Corr., 450 F.3d 1245, 1247 (11th Cir. 2006). The scope of

review is limited to the issue specified in the COA. See Murray v. United States,

145 F.3d 1249, 1250–51 (11th Cir. 1998) (addressing a § 2255 motion).

      As amended by the Antiterrorism and Effective Death Penalty Act of 1996



                                            2
(“AEDPA”), 28 U.S.C. § 2254(d) forbids a federal court from granting habeas

relief on claims that were previously adjudicated on the merits by a state court

unless the adjudication:

      (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).

      A state court’s decision is contrary to clearly established federal law if the

state court (1) arrives at a conclusion opposite to that reached by the Supreme

Court on a question of law; or (2) decides a case differently than the Supreme

Court has on a set of materially indistinguishable facts. Ventura v. Att’y Gen., Fla.,

419 F.3d 1269, 1280–81 (11th Cir. 2005). A state court’s decision is an

unreasonable application of clearly established federal law if the state court

unreasonably applies the established law to the facts of a case. Williams v. Taylor,

529 U.S. 362, 407–08, 120 S. Ct. 1495, 1520, 146 L. Ed. 2d 389 (2000).

Additionally, “[f]actual determinations by state courts are presumed correct absent

clear and convincing evidence to the contrary, § 2254(e)(1), and a decision

adjudicated on the merits in a state court and based on a factual determination will



                                           3
not be overturned on factual grounds unless objectively unreasonable in light of the

evidence presented in the state-court proceeding, § 2254(d)(2).” Miller-El v.

Cockrell, 537 U.S. 322, 324, 123 S. Ct. 1029, 1033, 154 L. Ed. 2d 931 (2003).

      We recently held in Ferguson that, despite the presumption of correctness

given to the state court’s factual determinations, where the appellant raised

fact-intensive self-representation claims that required the state court to ensure that

the appellant knowingly and voluntarily waived his right to counsel and to

determine whether standby counsel substantially interfered with tactical decisions

or the questioning of witnesses, “the absence of the trial record precluded the

district court from conducting a meaningful review of the trial court decision.”

Ferguson, 527 F.3d at 1149. Accordingly, we held that “[t]o review the actions of

a state trial court with respect to self-representation claims, federal habeas courts

must examine the state trial court record, rather than rely solely on the state

appellate court’s findings as to what the trial record contains.” Id. In an

explanatory footnote, we clarified that we “[were] simply holding that in order to

conduct a meaningful review of the state court rulings, federal courts must have the

opportunity of reviewing the trial transcripts and state court records underlying

those rulings.” Id. at 1149 n.4.




                                           4
                                            I.

      Although a federal court reviewing a state prisoner’s habeas petition may not

“reexamine state-court determinations on state-law questions,” Estelle v. McGuire

502 U.S. 62, 67–68, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991), it may review

state evidentiary rulings to determine whether the rulings violated the petitioner’s

due process rights. Felker v. Turpin, 83 F.3d 1303, 1311–12 (11th Cir. 1996). In

such instances, the inquiry is limited to determining whether evidentiary errors

“‘so infused the trial with unfairness as to deny due process of law.’” Id. (quoting

Lisenba v. California, 314 U.S. 219, 228, 62 S. Ct. 280, 286, 86 L. Ed. 166

(1941)). The determination of whether an evidentiary error is of such magnitude as

to deny fundamental fairness is to be made in light of the evidence as a whole. Id.

at 1312.

      In this case, the state admits that it did not file the trial transcripts, and the

record does not indicate that the transcripts were filed. The district court could not

have meaningfully reviewed whether the admission of the victim’s out-of-court

statement testimony so infused the trial with unfairness as to deny due process of

law without reviewing the state trial transcripts.

                                            II.

      In reviewing allegations of the sufficiency of evidence, we ask “whether,



                                             5
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 v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,

61 L. Ed. 2d 560 (1979). In weighing the sufficiency of the evidence, “[i]t is not

required that the evidence rule out every hypothesis except that of guilt beyond a

reasonable doubt.” Martin v. State of Alabama, 730 F.2d 721, 724 (11th Cir.

1984). Pursuant to 28 U.S.C. § 2254(f), where a petitioner challenges the

sufficiency of the evidence used to support the state court’s factual determinations,

the petitioner normally bears the burden of providing the district court with the

relevant portions of the state trial record. 28 U.S.C. § 2254(f); Ferguson, 527 F.3d

at 1147. Nevertheless, if the petitioner “because of indigency or other reason is

unable to produce such part of the record, then the State shall produce such part of

the record and the Federal court shall direct the State to do so.” 28 U.S.C.

§ 2254(f).

       Here, despite the fact that the magistrate judge ordered the state to file the

relevant trial record, the state did not file the trial transcripts. Although the district

court stated that it conducted an “independent review of the record” to determine

that the evidence was sufficient for the trial court to deny the judgment of acquittal

motion, the district court could not have conducted a meaningful review without



                                             6
the trial transcripts.

                                          III.

       The Sixth Amendment provides that a criminal defendant shall have the

right to “the [a]ssistance of [c]ounsel for his defense.” U.S. Const. Amend. VI. To

prove ineffective assistance of counsel, the defendant must show that (1) counsel’s

performance was deficient, and (2) the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80

L. Ed. 2d 674 (1984). The standards applicable to claims of ineffectiveness against

trial counsel apply equally to claims against appellate counsel. Johnson v.

Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001).

       Here, too, we conclude that the district court needed the trial transcripts to

resolve whether it was reasonable for the state court to conclude that trial counsel

had (1) thoroughly questioned the credibility of the witnesses and (2) not admitted

during closing argument that he failed to investigate, because these conclusions

were fact-based. Further, the district court needed the trial record to determine

whether it was reasonable for the state to conclude that the appellate counsel could

not have filed a timely motion for a new trial or brought claims of ineffective

assistance on appeal.

       Thus, we vacate the dismissal of Williams’s petition for a writ of habeas



                                            7
corpus to the extent that it presents issues about the admission of a victim’s

out-of-court statement, whether the trial court erroneously denied the judgment of

acquittal motion, whether trial counsel was ineffective in challenging the

credibility of two state witnesses and during closing argument, and whether

appellate counsel was ineffective for failing to raise a claim of ineffective

assistance of trial counsel. Further, on remand, we instruct the district court to

make explicit its consideration of the trial record. We decline to express an

opinion about whether Williams is entitled to prevail on the merits of his petition

and whether he should receive an evidentiary hearing because these issues are

outside the scope of the COA.

      VACATED AND REMANDED.




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