                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-13564                 ELEVENTH CIRCUIT
                                                                APRIL 12, 2010
                           Non-Argument Calendar
                                                                 JOHN LEY
                         ________________________
                                                                  CLERK

                      D. C. Docket No. 08-21601-CV-AJ

JOSEPH P. MANNING,



                                                            Petitioner-Appellant,

                                     versus

STATE OF FLORIDA,
Bill McCollum,

                                                           Respondent-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________
                                (April 12, 2010)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

     Joseph P. Manning, a Florida state prisoner proceeding pro se, appeals the
district court’s denial of his habeas corpus petition, 28 U.S.C. § 2254, alleging that

his trial attorney was ineffective for failing to strike a particular juror during jury

selection. After a thorough review, we affirm.

       Manning was indicted by a Florida grand jury for first-degree premeditated

murder. During voir dire, defense counsel asked potential juror Paula Paul

whether she felt that the defense had to prove anything during the trial, and she

replied that it did. Counsel then explained that the state had the burden of proving

beyond a reasonable doubt that Manning had committed the crime and asked Paul

if she still wanted the defense to provide something. Paul again replied that she

did. Despite these comments, both the state and the defense accepted Paul as a

juror. Manning testified in his own defense, was found guilty, and was sentenced

to life without parole. The state appeals court affirmed Manning’s conviction and

sentence on direct appeal.

       Manning then filed a pro se motion for state post-conviction relief under

Fla.R.Crim.P. 3.850, alleging, inter alia, that his trial counsel was ineffective for

failing to strike juror Paul.

       At an evidentiary hearing, the assistant public defender who had represented

Manning at trial, Michael Melinek, testified that his trial strategy was to argue self-

defense. Because this defense necessitated Manning’s testimony at trial, and Paul



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had stated that she wanted to hear from the defense, Melinek decided not to strike

Paul from the panel. Moreover, there was other background information that led

Melinek to believe she would be a favorable juror for the defense. After voir

dire was complete, Melinek went over his notes with Manning, and they discussed

issues. Melinek did not recall Manning’s objecting to any of the jurors.

      The state trial court denied Manning’s post-conviction motion in a written

order, finding that Melinek had made a valid and reasonable decision to keep Paul

on the jury panel. Manning then filed the instant § 2254 petition.

      A magistrate judge recommended that the district court deny Manning’s

§ 2254 petition because the state court’s factual determination was amply

supported by the evidence and Manning could not establish prejudice arising from

counsel’s alleged deficient performance. The district court adopted the

magistrate’s recommendation over Manning’s objections. Although the district

court noted Paul’s problematic answers during voir dire, it concluded that there

was no evidence Paul was biased because, under Florida law, a defendant has the

initial burden of producing evidence to support a prima facie case of self defense.

Accordingly, the district court concluded that under the specific circumstances of

the case, the state court’s decision was not contrary to or an unreasonable

application of federal law.



                                          3
      Manning requested a certificate of appealability, which the district court

granted with respect to whether Manning’s trial counsel rendered ineffective

assistance when he failed to strike prospective juror Paul during jury selection.

      On appeal, Manning argues that Melinek erred in failing to strike potential

juror Pauline Paul because she indicated that she was biased and unable to render a

fair or impartial verdict. Manning argues that, regardless of counsel’s trial

strategy, Paul should have been removed because reasonable doubt existed as to

whether she was impartial.

      “When reviewing the district court’s denial of a habeas petition, we review

questions of law and mixed questions of law and fact de novo, and findings of fact

for clear error.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). Federal

courts are forbidden from granting habeas relief on claims that were previously

adjudicated in 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 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). Additionally, “a determination of a factual issue made by a

State court shall be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence.” 28

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U.S.C. § 2254(e)(1).

      To prove ineffective assistance of counsel under federal law, a defendant

must show both (1) that counsel’s performance was deficient; and (2) that the

deficient performance prejudiced the defendant. Strickland v. Washington, 466

U.S. 668, 687 (1984). Where a defendant makes an insufficient showing on one

prong of the Strickland test, we need not address the other. Id. at 697. “When a

convicted defendant complains of the ineffectiveness of counsel’s assistance, the

defendant must show that counsel’s representation fell below an objective standard

of reasonableness.” Id. at 687-88.

      The Supreme Court has instructed that courts’ scrutiny of counsel’s

performance should be “highly deferential,” specifying that

      [a] court must indulge a strong presumption that counsel’s conduct
      falls within the wide range of reasonable professional assistance; that
      is, the defendant must overcome the presumption that, under the
      circumstances, the challenged action “might be considered sound trial
      strategy.” There are countless ways to provide effective assistance in
      any given case. Even the best criminal defense attorneys would not
      defend a particular client in the same way.

Id. at 689 (citation and quotations omitted). Additionally, under Florida law,

“[w]hen the defense of self-defense is asserted, a defendant has the burden of

producing enough evidence to establish a prima facie case demonstrating the

justifiable use of force.” Fields v. State, 988 So. 2d 1185, 1188 (Fla. Dist. Ct. App.



                                          5
2008).

         Here, the district court properly denied Manning’s § 2254 petition because

he failed to show that trial counsel was deficient or that he was prejudiced as a

result of counsel’s strategic decision. Under state law, Manning retained the

burden to show a prima facie case of self defense. Therefore, under the

circumstances, Melinek’s decision not to strike Paul was a reasonable trial strategy.

Because counsel’s performance was not deficient, the state court’s decision to deny

relief was not contrary to or an unreasonable application of federal law. The denial

of Manning’s § 2254 petition is

         AFFIRMED.




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