               Case: 13-12525       Date Filed: 12/16/2014      Page: 1 of 10


                                                                                [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 13-12525
                              ________________________

                         D. C. Docket No. 0:12-cv-60711-RNS


CARLOS VELAZCO,

                                                                       Petitioner-Appellant,
                                            versus


DEPARTMENT OF CORRECTIONS,
Secretary,


                                                                     Respondent-Appellee.
                              ________________________

                        Appeal from United States District Court
                          for the Southern District of Florida
                             _______________________

                                   (December 16, 2014)

Before WILLIAM PRYOR and JORDAN, Circuit Judges, and WALTER, ∗ District
Judge.




∗
 Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
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WILLIAM PRYOR, Circuit Judge:

      This appeal requires us to decide whether a district court erred when it

denied a Florida prisoner’s petition for a writ of habeas corpus without holding an

evidentiary hearing. After a Florida court convicted Carlos Velazco of attempted

second degree murder, Velazco unsuccessfully argued in a state postconviction

proceeding that his trial counsel had been ineffective in offering the testimony of

two witnesses. When Velazco filed a federal petition and requested an evidentiary

hearing, he argued that the Florida court had unreasonably applied clearly

established federal law when it denied his claim of ineffective assistance of

counsel. The district court refused to hold an evidentiary hearing and denied

Velazco’s petition. We granted a certificate of appealability on the question

whether the district court abused its discretion when it denied Velazco’s petition

without holding an evidentiary hearing. We affirm.

                                I. BACKGROUND

      On September 4, 2005, Carlos Velazco visited Arancello’s Restaurant in

Hallandale, Florida, to celebrate his mother’s birthday. After he arrived, Velazco

encountered Anthony DiCarlo, the owner of the restaurant, Chris Boyle, the

bartender, Anthony Tafarella, who was helping out at the restaurant in the hope of




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obtaining a job, and Carmen Mesa, a waitress. A security camera system at the

restaurant recorded their interactions.

      When Velazco complained to Mesa, his waitress, that his drink was too

sweet, Tafarella came over to Velazco’s table to suggest another drink he might

prefer. About one-and-a-half hours later, Velazco complained to Mesa that she had

not given him correct change. Velazco then pushed Mesa three times. Tafarella

intervened and grabbed Velazco’s arm. Velazco then tried to punch DiCarlo, who

was standing nearby. Tafarella then placed Velazco in a headlock to restrain him.

When Tafarella escorted Velazco to an exit, DiCarlo and Boyle followed and were

standing behind Tafarella when he released Velazco from the headlock. But

Tafarella continued to hold Velazco’s arm.

      Velazco then produced a knife from his pocket and repeatedly stabbed

Tafarella. DiCarlo and Boyle intervened and began beating Velazco. Tafarella

suffered nine stab wounds and permanent nerve damage. Velazco suffered black

eyes and a broken nose.

      An information charged Velazco with attempted second degree murder with

a weapon or a firearm. At his jury trial, Velazco argued that he acted in self-

defense. The prosecution called the officers who had investigated the incident, as

well as Tafarella and Boyle, to testify. The prosecution also introduced the video

recordings of the incident as evidence.

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      Defense counsel called four witnesses to testify, two of whom were Nancy

Vieta, Velazco’s mother, and Lizbeth Pulgar, a friend of Nancy Vieta. Pulgar

testified that Velazco acted “normal” on the night of the incident and never

provoked anyone. She testified that Tafarella was “very aggressive” when he came

over to their table. She testified that she never saw Velazco stab anyone. Vieta

testified that she saw the men leave the restaurant while hitting Velazco. Vieta also

testified that she never saw Velazco with a knife nor saw him stab anyone.

      Although Pulgar and Vieta denied having given statements to the police, a

police officer, called as a rebuttal witness for the state, testified that he took

statements from both witnesses. The officer testified that Pulgar and Vieta denied

having seen the incident. On cross-examination, the prosecution also elicited

internal inconsistencies in both Pulgar’s and Vieta’s testimony.

      The jury convicted Velazco of attempted second degree murder, and the trial

judge sentenced him to 27 years in prison followed by three years of probation.

The Florida Fourth District Court of Appeal affirmed without opinion. Velazco v.

State, 992 So. 2d 270 (Fla. Dist. Ct. App. 2008).

      In a motion for postconviction relief in a Florida court, Fla. R. Crim. P.

3.850, Velazco alleged that his counsel had been ineffective because they failed to

investigate the accounts of Pulgar and Vieta before calling them to testify. The trial




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court denied the motion. The Florida Fourth District Court of Appeal affirmed

without opinion. Velazco v. State, 83 So. 3d 739 (Fla. Dist. Ct. App. 2012).

      Velazco filed a federal petition for a writ of habeas corpus. He challenged

the ruling that he had failed to establish ineffective assistance of counsel regarding

the offering of Vieta’s and Pulgar’s testimony. He also requested an evidentiary

hearing. The district court denied Velazco’s request for a hearing and his petition.

This Court granted a certificate of appealability to determine whether the district

court abused its discretion by denying Velazco’s request for an evidentiary hearing

to prove his claim of ineffective assistance of counsel.

                          II. STANDARD OF REVIEW

      When we review a denial of a state prisoner’s petition, we review questions

of law de novo, Grossman v. McDonough, 466 F.3d 1325, 1335 (11th Cir. 2006),

but the Antiterrorism and Effective Death Penalty Act of 1996 establishes a

“general framework of substantial deference [that] governs our review of every

issue that the state courts have decided.” Diaz v. Sec’y for the Dep’t of Corr., 402

F.3d 1136, 1141 (11th Cir. 2005). We will not disturb the decision of the state

court unless that decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” 28 U.S.C. § 2254(d)(1), or was “based on an




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unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” Id. § 2254(d)(2).



                                 III. DISCUSSION

      The certificate of appealability erroneously assumes that we review for

abuse of discretion the denial of Velazco’s request for an evidentiary hearing. To

be sure, when a federal prisoner files a motion to vacate his sentence, 28 U.S.C. §

2255, we review the denial of an evidentiary hearing for “abuse of discretion.”

Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002). But when a state

prisoner files a petition for a writ of habeas corpus, 28 U.S.C. § 2254, we follow a

“clear, emphatic rule” that, “if a state court has adjudicated the claim on the merits,

then a petitioner must satisfy § 2254(d)(1) based only on the record before that

state court.” Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 1254, 1263 (11th Cir.

2014) (citing Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388 (2011)). If a

petitioner satisfies that burden, we then review for abuse of discretion the denial of

an evidentiary hearing. See Burgess v. Comm’r, Alabama Dep’t of Corr., 723 F.3d

1308, 1319–20 (11th Cir. 2013) (reviewing denial of evidentiary hearing for abuse

of discretion after concluding that petitioner had satisfied his burden under section

2254(d)(2)).




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      The district court correctly examined only the state record. Section 2254

governs Velazco’s petition. The state appellate court summarily denied Velazco’s

motion for postconviction relief, Velazco, 83 So. 3d 739, and that decision was an

“adjudication on the merits,” Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348, 1353

(11th Cir. 2012). Velazco bears the burden of establishing, on the basis of the state

record alone, that the decision of the state court “was contrary to, or involved an

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

§ 2254(d)(1).

      To obtain state postconviction relief on his claim of ineffective assistance of

counsel, Velazco had to establish both that his counsel performed deficiently and

that “the deficient performance prejudiced the defense.” Strickland v. Washington,

466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). And in our review of the denial

of that claim, “‘[i]f it is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice, which we expect will often be so, that course should

be followed.’” Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1326 (11th Cir.

2013) (en banc) (quoting Strickland, 466 U.S. at 697, 104 S. Ct. at 2069). In our

review of whether he established prejudice, Velazco “has to show that every fair-

minded jurist would conclude that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been




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different.” Jones v. GDCP Warden, 753 F.3d 1171, 1184 (11th Cir. 2014) (internal

quotation marks and citation omitted).

      The Florida court could have reasonably concluded that Velazco failed to

establish prejudice regarding his trial counsel’s alleged failure to investigate the

accounts of Vieta and Pulgar. Velazco argues that the witnesses “harmed the

credibility of the defense” when they were impeached. But Velazco fails to explain

how, in the absence of this supposed blow to the defense’s credibility, the result of

the trial would have been different. Velazco contends that, because neither witness

“observe[d] most of the incident,” they had nothing useful to offer the defense.

But even if these witnesses had nothing to offer that would support a theory of self-

defense, that contention establishes only that Vieta and Pulgar were not helpful.

Velazco provides no reason to believe that, had his attorneys adequately

investigated the witnesses’ unhelpfulness, the verdict might have swung in

Velazco’s favor.

      Moreover, the state record establishes that the witnesses were useful to the

defense. Pulgar testified that Tafarella had been “very aggressive” toward Velzaco

before the attempted murder. And Vieta testified that Tafarella was speaking “[i]n

a very loud voice and making [gestures]” when he came over to Velazco’s table

and that Velazco was “scared” by Tafarella’s aggression. This testimony supported

Velazco’s theory of self-defense.

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      Velazco also fails to acknowledge the overwhelming evidence against him.

Multiple witnesses described Velazco’s sudden attack. One of the investigating

officers testified that “all [of the restaurant] workers” he interviewed agreed about

the events. And the prosecution offered extensive video recordings of the incident.

Before imposing Velazco’s sentence, the trial judge explained that the video

recordings obviated the need for speculation about the attempted murder:

      [Neither t]he court, nor the jury, had to speculate on what
      occurred. . . . The restaurant . . . had extremely sophisticated video
      recordings. . . . The event showed an absolutely senseless act. And an
      act of such extreme aggression by . . . Velazco. [What] just absolutely
      amazes this Court is the speed with which [] Velazco reached into his
      pocket[,] opened or withdrew a knife . . . and proceeded on his
      ruthless attack. . . . [N]o one was holding him. No one was chasing
      him. . . . When for some reason he made a life altering decision.

Because Velazco has failed to satisfy his burden under section 2254(d)(1) “based

only on the record before that state court,” our inquiry is at an end. Pope, 752 F.3d

at 1263. Cf. Madison v. Comm’r, Alabama Dep’t of Corr., 761 F.3d 1240, 1249–50

(11th Cir. 2014) (“Nothing in Pinholster, or any other principle of habeas corpus,

bars a District Court from conducting an evidentiary hearing where . . . (1) the

federal claim was adjudicated on the merits in state court; (2) there is a

determination based only on the state court record that the petitioner has cleared

the § 2254(d) hurdle; and (3) the habeas petitioner tried, but was not given the

opportunity to develop the factual bases of the claim in state court.”) (footnote

omitted).
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                       IV. CONCLUSION

We AFFIRM the denial of Velazco’s petition.




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