              Case: 12-15386    Date Filed: 09/18/2013   Page: 1 of 9


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-15386
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 5:12-cv-00038-LGW-JEG



JAMES KURTZ,

                                                              Petitioner-Appellant,

                                      versus

WARDEN, CALHOUN STATE PRISON,

                                                             Respondent-Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                         ________________________

                               (September 18, 2013)

Before DUBINA,WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Appellant James Kurtz, a Georgia prisoner, appeals the district court’s denial

of his 28 U.S.C. § 2254 petition for writ of habeas corpus challenging his 2004
               Case: 12-15386     Date Filed: 09/18/2013    Page: 2 of 9


Georgia convictions for one count of child molestation, two counts of sexual

assault against a person in custody, one count of aggravated child molestation, one

count of statutory rape, and one count of cruelty to children. In his § 2254 petition,

he argued that his appellate counsel was ineffective for failing to raise trial

counsel’s ineffectiveness in failing to present character witnesses at trial.

      At a new trial hearing after Kurtz’s criminal trial, Kurtz’s trial counsel

testified that he did not call any good character witnesses because he thought that

the jury would assume Kurtz’s character from Kurtz’s profession and he wanted to

preserve the final closing argument. After the state trial court denied Kurtz a new

trial and the Georgia Court of Appeals affirmed his convictions, Kurtz filed a state

application for writ of habeas corpus, asserting trial counsel’s ineffectiveness for

failing to present a good character defense, and appellate counsel’s ineffectiveness

for failing to raise that issue on appeal. In a deposition submitted at the state

habeas court evidentiary hearing, Kurtz’s appellate counsel testified that he

decided not to raise the issue of trial counsel’s failure to present good character

evidence because he believed that trial counsel knew of potentially damaging

rebuttal testimony and he did not want to give the state the opportunity to present

that evidence. The state habeas court denied Kurtz’s application for habeas relief,

crediting appellate counsel’s testimony explaining his reason for not bringing the




                                           2
               Case: 12-15386    Date Filed: 09/18/2013    Page: 3 of 9


ineffective-assistance-of-trial-counsel claim on appeal over trial counsel’s

explanation.

      In the federal habeas proceeding, a magistrate judge recommended the

denial of Kurtz’s § 2254 petition, finding that the state court did not unreasonably

apply Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). The district

court, however, determined that the state habeas court made an unreasonable

determination of fact, under § 2254(d)(2), in finding that appellate counsel decided

not to raise trial counsel’s ineffectiveness on appeal because he thought that trial

counsel knew of potentially damaging character evidence. The district court,

therefore, reviewed the state habeas court’s decision de novo, but concluded that

Kurtz failed to show a reasonable probability that the outcome of the appeal would

have been different if appellate counsel had raised trial counsel’s ineffective

assistance on appeal.

      We granted a certificate of appealability on a single issue:

      Whether the district court erred in finding that Kurtz’s appellate
      counsel was not ineffective in failing to raise trial counsel’s alleged
      ineffective assistance in not presenting character witnesses at trial.

We also directed the parties to discuss the effect, if any, of the deference standard

under 28 U.S.C. § 2254(d).

      On appeal, Kurtz argues that the district court erred in denying his § 2254

petition because appellate counsel’s reason for failing to raise the ineffectiveness


                                           3
               Case: 12-15386    Date Filed: 09/18/2013    Page: 4 of 9


of trial counsel was demonstrably false, thus showing his deficient performance.

He further contends that the deficient performance prejudiced him because his trial

was essentially a credibility dispute between himself and the victim, so there is a

reasonable probability that evidence of Kurtz’s good character would have

changed the outcome of the trial. After reviewing the record and reading the

parties’ briefs, we affirm.

      When reviewing the district court’s denial of a § 2254 petition, we review

“questions of law and mixed questions of law and fact, including ineffective

assistance of counsel claims, de novo, and review findings of fact for clear error.”

Pardo v. Sec’y, Fla. Dep’t of Corrs., 587 F.3d 1093, 1098 (11th Cir. 2009).

However, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. No. 104-132, 110 Stat. 1214 (1996), imposes a “highly deferential standard

for evaluating state-court rulings . . . and demands that state-court decisions be

given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, __, 130 S. Ct. 1855,

1862 (2010) (internal quotation marks omitted). Thus, we review the district

court’s decision de novo, but review the state habeas court’s decision with

deference. Reed v. Sec’y, Fla. Dep’t of Corrs., 593 F.3d 1217, 1239 (11th Cir.

2010).




                                          4
              Case: 12-15386     Date Filed: 09/18/2013    Page: 5 of 9


      A federal court may not grant a writ of habeas corpus for a state prisoner

where the claim was adjudicated on the merits by a state court unless the state

court’s decision:

      (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)(1), (2). The Supreme Court decision applicable in an

ineffective-assistance case is Strickland. See Premo v. Moore, 562 U.S. __, __,

131 S. Ct. 733, 739 (2011). “The standards created by Strickland and § 2254(d)

are both highly deferential, and when the two apply in tandem, review is doubly

so.” Harrington v. Richter, 562 U.S. __, __, 131 S. Ct. 770, 788 (2011) (internal

quotation marks omitted). “A certain amount of deference is always given to a

trial court’s credibility determinations,” and a credibility determination in a case on

habeas review receives heightened deference. Gore v. Sec’y for Dep’t of Corrs.,

492 F.3d 1273, 1300 (11th Cir. 2007).

      The Supreme Court has held that “a state-court factual determination is not

unreasonable merely because the federal habeas court would have reached a

different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301, 130

S.Ct. 841, 849 (2010). A habeas court cannot supersede the trial court’s


                                           5
              Case: 12-15386     Date Filed: 09/18/2013   Page: 6 of 9


determination “even if [r]easonable minds reviewing the record might disagree

about the finding in question.” Id. (internal quotation marks omitted) (alteration in

original).

      Under § 2254(e)(1), a state court’s factual determinations are presumed

correct unless the petitioner can rebut that presumption by clear and convincing

evidence. Id. § 2254(e)(1). The Supreme Court has stated that § 2254(d)(2) and

(e)(1) have independent requirements, and that “AEDPA does not require

petitioner to prove that a decision is objectively unreasonable by clear and

convincing evidence.” Miller-El v. Cockrell, 537 U.S. 322, 341, 123 S. Ct. 1029,

1042 (2003). We have indicated that, if a petitioner establishes that the state court

made an unreasonable factual determination based on the evidence presented in the

state habeas proceeding, we are “not bound to defer to unreasonably-found facts or

to the legal conclusions that flow from them” and may review the claim de novo,

without deference to the state court’s decision. Jones v. Walker, 540 F.3d 1277,

1288 & n.5 (11th Cir. 2008) (en banc).

      To succeed on an ineffective-assistance claim under Strickland, a petitioner

must show that (1) his attorney’s performance was deficient, and (2) the deficient

performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct.

at 2064. Under § 2254(d), “the question is not whether counsel’s actions were

reasonable [but] whether there is any reasonable argument that counsel satisfied


                                          6
              Case: 12-15386     Date Filed: 09/18/2013   Page: 7 of 9


Strickland’s deferential standard.” Harrington, 562 U.S. at __, 131 S.Ct. at 788.

“Claims of ineffective assistance of appellate counsel are governed by the same

standards applied to trial counsel under Strickland.” Philmore v. McNeil, 575 F.3d

1251, 1264 (11th Cir. 2009). “In order to establish prejudice, we must first review

the merits of the omitted claim.” Id. at 1264-65. If the defendant makes an

insufficient showing on the prejudice prong, we need not address the performance

prong, and vice versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).

      With respect to the deficient-performance prong, “a defendant must show

that his counsel’s representation fell below an objective standard of reasonableness

in light of prevailing professional norms at the time the representation took place.”

Cummings v. Sec’y for Dep’t of Corrs., 588 F.3d 1331, 1356 (11th Cir. 2009)

(internal quotation marks omitted). A district court considering a claim of

ineffective assistance must apply a strong presumption that counsel’s

representation was “within the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. A fair assessment of counsel’s

performance “requires that every effort be made to eliminate the distorting effects

of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time.” Id. In assessing

an appellate attorney’s performance, we are “mindful that the Sixth Amendment

does not require appellate advocates to raise every non-frivolous issue. Rather, an


                                          7
              Case: 12-15386     Date Filed: 09/18/2013    Page: 8 of 9


effective attorney will weed out weaker arguments, even though they may have

merit.” Philmore, 575 F.3d at 1264 (internal quotation marks omitted).

      With regard to the prejudice prong, “[t]he defendant must show that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct.

at 2068. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome,” but “some conceivable effect on the outcome of the

proceeding” is not a reasonable probability. Id. at 693-94, 104 S.Ct. at 2067-68.

“When a defendant challenges a conviction, the question is whether there is a

reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.” Id. at 695, 104 S.Ct. at 2068-69. Appellate

counsel’s performance will be deemed prejudicial if we find that “the neglected

claim would have a reasonable probability of success on appeal.” Philmore, 575

F.3d at 1265 (internal quotation marks omitted). Where a claim of ineffective

assistance is based on counsel’s failure to call a witness, the burden to show

prejudice is heavy because “often allegations of what a witness would have

testified to are largely speculative.” Sullivan v. DeLoach, 459 F.3d 1097, 1109

(11th Cir. 2006) (internal quotation marks omitted).

      Although the district court erred in concluding that the state habeas court

made an unreasonable determination of the facts and, therefore, used the wrong


                                           8
              Case: 12-15386     Date Filed: 09/18/2013    Page: 9 of 9


standard of review, the district court correctly determined that Kurtz failed to

establish that he was prejudiced by his appellate counsel’s failure to raise the issue

of ineffective assistance of trial counsel on appeal. Accordingly, we affirm the

judgment denying federal habeas relief.

      AFFIRMED.




                                          9
