           Case: 17-14638   Date Filed: 10/17/2019   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-14638
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 6:15-cv-01869-ACC-DCI



WILLIAM ARTHUR BISHOP,

                                                          Petitioner-Appellant,

                                 versus

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

                                                      Respondents-Appellees.

                      ________________________

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

                            (October 17, 2019)

Before WILSON, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM:
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      William Bishop is a Florida prisoner. He is serving 30 years’ imprisonment

for crimes connected to the molestation of a young girl near a pool at a Disney

resort. He appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a

writ of habeas corpus.

      Bishop makes two arguments. He first says that his counsel was ineffective

for not impeaching his victim’s father, James Lanza, about a possible financial

interest that Lanza may have had in Bishop’s conviction. He then argues that the

district court failed to resolve his claim that his counsel was ineffective for failing

to seek a hearing to address the potential effect of pretrial publicity on his trial,

violating Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc).

      We affirm the district court on the first point. We vacate and remand on the

second.

                                            I.

      28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), guides our analysis of a federal habeas petition.

Downs v. Sec’y, Fla. Dep’t of Corr., 738 F.3d 240, 256 (11th Cir. 2013). And we

review de novo a district court’s denial of a federal habeas petition based on

ineffective assistance of counsel. Johnson v. Sec’y, DOC, 643 F.3d 907, 929 (11th

Cir. 2011).




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      “Section 2254(d) reflects Congress’ decision to restrict federal courts’

authority to grant habeas relief to cases in which the state court’s decision

unquestionably conflicts with Supreme Court precedent.” Nance v. Warden, Ga.

Diagnostic Prison, 922 F.3d 1298, 1301 (11th Cir. 2019). Once a state court has

adjudicated a claim on the merits, a federal court may grant habeas relief only if

the state court’s decision was (1) contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the Supreme Court

of the United States, or (2) based on an unreasonable determination of the facts

given the evidence presented to the state court. 28 U.S.C. § 2254(d). To justify

federal habeas relief under these standards, “the state court’s decision must be so

lacking in justification that there was an error . . . beyond any possibility for

fairminded disagreement.” Nance, 922 F.3d at 1301 (internal quotation mark

omitted).

      As for ineffective assistance, the Sixth Amendment gives criminal

defendants the right to effective assistance of counsel. McMann v. Richardson,

397 U.S. 759, 771 (1970). To succeed on an ineffective-assistance claim, a

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

deficient conduct prejudiced his defense. Strickland v. Washington, 466 U.S. 668,

687 (1984).




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      When considering whether counsel’s performance was deficient, we review

counsel’s actions in a “highly deferential” manner and apply “a strong presumption

. . . of reasonable professional assistance.” Johnson, 643 F.3d at 928. To

overcome this presumption, a petitioner must show that “no competent counsel

would have taken the action that his counsel did take.” Id. Then, to establish

prejudice, a petitioner must show “that, but for his counsel’s deficient

performance, there is a reasonable probability that the result of the proceeding

would have been different.” Id.

      Under these stacked standards of deference, showing that “a state court’s

application of Strickland was unreasonable . . . is all the more difficult.” Downs,

738 F.3d at 258. For when “the highly deferential standards mandated by

Strickland and AEDPA both apply, they combine to produce a doubly deferential

form of review that asks only whether there is any reasonable argument that

counsel satisfied Strickland[’s] deferential standard.” Id. (internal quotation mark

omitted). It is thus “a rare case in which an ineffective assistance of counsel claim

that was denied on the merits in state court is found to merit relief in a federal

habeas proceeding.” Nance, 922 F.3d at 1303 (internal quotation mark omitted).

      Bishop cannot overcome this double deference here, as the state court’s

finding that Bishop was not prejudiced by his counsel’s failure to impeach Lanza

about a possible financial motive does not fall within either of § 2254(d)’s relief


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standards. To start, the victim, JL, identified Bishop—both on the day of the incident

and in court—as the man who touched her. JL made her in-court identification after

testifying that she knew the difference between the truth and a lie and promised to

tell the truth. Her testimony tracked her videotaped child forensic interview from

the day of the incident. And although Bishop implies that JL was the only witness

to her being touched, witness David Silva Jr. corroborated JL’s testimony, swearing

that he saw Bishop touching JL.

      To be sure, Bishop argues that Lanza had an incentive to tell JL to lie given a

possible financial interest in a lawsuit against the resort at which the crime occurred.

He claims that this evidence, if drawn out, would have undermined JL’s testimony.

But the prosecution did not hinge solely on JL’s testimony. Fellow resort-attendee

Silva Jr. corroborated JL’s story when he told his father, David Silva Sr., that he saw

Bishop touching JL. Silva Sr. then conveyed this information to resort lifeguard

Michael Charette, who in turn found Bishop with JL behind the shed. Further, all

three of them testified that they saw a man with JL before Lanza learned about the

incident; all three of them identified Bishop as that man in court; and none of them

have a purported financial interest in Bishop’s conviction.

      To this Bishop asserts that Silva Jr.’s and Silva Sr.’s identifications are suspect

because they stem from repeatedly seeing his picture during their media

appearances. But Silva Sr. testified that his identification of Bishop was based on


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his observation of Bishop from the day of the incident, not from Bishop’s media

presence. Given all this, there is a reasonable argument that Bishop’s counsel

satisfied Strickland’s deferential standard because multiple uninterested witnesses

corroborated JL’s and Lanza’s testimony, and therefore any failure to impeach Lanza

does not undermine confidence in Bishop’s conviction, even if this failure

constituted deficient performance. See Strickland, 466 U.S. at 687, 694, 697;

Downs, 738 F.3d at 258; Johnson, 643 F.3d at 928. Bishop thus has not shown that

the state court’s finding was “so lacking in justification that there was an error . . .

beyond any possibility for fairminded disagreement.” See Nance, 922 F.3d at 1301.

The district court properly denied relief.

                                             II.

      In Clisby, we held that when a district court fails to address all the claims in

a § 2254 petition, we “will vacate the district court’s judgment without prejudice

and remand the case for consideration of all remaining claims.” 960 F.2d at 938

(noting that we will vacate and remand “whenever the district court has not

resolved all such claims” (emphasis added)). We defined a “claim for relief” in

Clisby as “any allegation of a constitutional violation.” Id. at 936.

      In Williams v. Griswald, we held that it is “well established that prejudicial

publicity may deprive a criminal defendant of the constitutional right to a fair

trial.” 743 F.2d 1533, 1537 (11th Cir. 1984). To prevail on a pretrial-publicity


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claim, a defendant must show that pretrial publicity caused either actual or

presumed prejudice. Mills v. Singletary, 63 F.3d 999, 1009 (11th Cir. 1995).

       We conclude that the district court committed Clisby error because Bishop

asserted a constitutional claim—i.e., his counsel should have moved for a bias-

determination hearing to address the effect that the media may have had on his

trial—that the district court did not address when it dismissed Bishop’s petition. See

Clisby, 960 F.2d at 936, 938; Williams, 743 F.2d at 1537. Indeed, Bishop’s claim

was part of his overall ground for relief that his counsel was ineffective for failing

to impeach witnesses for their biases and alternative motives, and Clisby suggests

that we must remand whenever a district court fails to address and resolve all

constitutional claims—including claims that the petitioner groups into an overall

ground for relief—regardless of harmless error. See Clisby, 960 F.2d at 934–36,

938.

       Though the state argues that the district court inherently addressed the factual

basis for Bishop’s pretrial-publicity claim when it addressed his overall ground for

relief, the district court’s only finding related to that issue was that Bishop’s counsel

cross-examined Silva Jr. and Silva Sr. about their media appearances and

identification of Bishop. The district court did not address the specific issue of

whether counsel was ineffective for failing to seek a hearing on whether these media

appearances caused either actual or presumed prejudice and thus deprived Bishop of


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his constitutional right to a fair trial. See Mills, 63 F.3d at 1009; Williams, 743 F.2d

at 1537. In fact, the state concedes that the district court did not address this issue.

      The court thus committed Clisby error because it did not specifically address

Bishop’s claim that his counsel was ineffective for failing to seek a hearing to

address the potential effect of pretrial publicity on Bishop’s trial. We therefore

vacate the district court’s denial of habeas relief on this discrete issue and remand

to the district court for consideration.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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