                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 08-15410                   APRIL 13, 2009
                            Non-Argument Calendar            THOMAS K. KAHN
                                                                  CLERK
                          ________________________

                     D. C. Docket No. 06-00630-CV-BBM-1

BRUCE GLASS,



                                                             Petitioner-Appellant,

                                     versus

ROSE WILLIAMS,
in her official capacity as
Warden of Scott State Prison,

                                                           Respondent-Appellee.


                          ________________________

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

                                 (April 13, 2009)

Before DUBINA, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
       Petitioner/Appellant Bruce Glass, a state prisoner convicted of rape and

aggravated sexual battery, appeals through counsel the denial of his 28 U.S.C.

§ 2254 federal habeas petition as to his claim that the state violated his

constitutional rights when the state presented testimony at trial that Glass had

requested counsel when an officer served him with a warrant to collect DNA

evidence. The district court denied Glass’s petition based on its finding that his

claim was procedurally defaulted and that his claim of ineffective assistance of

counsel did not establish cause and prejudice to overcome the default. The district

court granted a certificate of appealability as to this issue.

       On appeal, Glass argues that he satisfied the cause-and-prejudice test to

overcome the procedural default because he received ineffective assistance of

counsel when his counsel failed to raise his claim on appeal. Specifically, he

argues that he was prejudiced by his counsel’s performance because the state’s

introduction of the testimony that he requested an attorney negatively impacted his

character and credibility, the sole basis of his defense.

       “When examining a district court’s denial of a § 2254 habeas petition, we

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

of fact for clear error.” Porter v. Attorney General, 552 F.3d 1260, 1267 (11th Cir.

2008) (quotation omitted).



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      Under the doctrine of procedural default, “[f]ederal courts are barred from

reaching the merits of a state prisoner’s federal habeas claim where the petitioner

has failed to comply with an independent and adequate state procedural rule.”

Siebert v. Allen, 455 F.3d 1269, 1271 (11th Cir. 2006). “A petitioner may obtain

federal review of a procedurally defaulted claim if he can show both cause for the

default and actual prejudice resulting from the default.” Jones v. Campbell, 436

F.3d 1285, 1304 (11th Cir. 2006).

      “Cause exists if there was some objective factor external to the defense that

impeded counsel’s efforts to comply with the State’s procedural rule.” Mize v.

Hall, 532 F.3d 1184, 1190 (11th Cir. 2008) (quotation and alteration omitted),

petition for cert. filed, (U.S. Jan. 23, 2009) (No. 08-8359). To establish prejudice,

a petitioner “must shoulder the burden of showing, not merely that the errors at his

trial created a possibility of prejudice, but that they worked to his actual and

substantial disadvantage, infecting his entire trial with error of constitutional

dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 1596,

(1982) (§ 2255 case); see also Murray v. Carrier, 477 U.S. 478, 494, 106 S. Ct.

2639, 2648, (1986) (describing the Frady standard by stating, “[s]uch a showing of

pervasive actual prejudice can hardly be thought to constitute anything other than a

showing that the prisoner was denied ‘fundamental fairness’ at trial.”).



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         “A petitioner can establish cause by showing that a procedural default was

caused by constitutionally ineffective assistance of counsel under Strickland v.

Washington.” Payne v. Allen, 539 F.3d 1297, 1314 (11th Cir.) (quotation omitted),

petition for cert. filed, (U.S. Dec. 15, 2008) (No. 08-8823). In Strickland, the

Supreme Court set out a two-part inquiry for ineffective-assistance-of-counsel

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

(1984). To obtain relief under Strickland, a petitioner must show that (1) his

counsel’s performance was constitutionally deficient, and (2) the deficient

performance prejudiced him. See id. A habeas petitioner must satisfy both prongs

of the Strickland test. Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir.

2004).

         In Doyle v. Ohio, the Supreme Court held that “use for impeachment

purposes of petitioners’ silence, at the time of arrest and after receiving Miranda

warnings, violated the Due Process Clause of the Fourteenth Amendment.” 426

U.S. 610, 619, 96 S. Ct. 2240, 2245, (1976). In Wainwright v. Greenfield, 474

U.S. 284, 295, 106 S. Ct. 634, 640-41, (1986), “[t]he Court later extended this

protection to post-Miranda invocations of the right to counsel.” Fugate v. Head,

261 F.3d 1206, 1222 (11th Cir. 2001). “If the prosecution violated the Greenfield

standard, then we must determine whether that error had substantial and injurious



                                           4
effect or influence in determining the jury’s verdict.” Id. at 1222-23 (quotation

omitted). This is the harmless-error standard applicable to Doyle and Greenfield

violations. See id.; Hill v. Turpin, 135 F.3d 1411, 1416-17 (11th Cir. 1998)

(applying this “harmless error standard” in the context of a Doyle violation).

      Because we conclude from the record that the evidence of Glass’s guilt was

overwhelming, any error the state made at trial in eliciting that he had invoked his

right to counsel was harmless. Therefore, Glass failed to establish prejudice under

the cause-and-prejudice test for us to review his procedurally defaulted claim.

Accordingly, we affirm the district court’s judgment denying habeas relief.

      AFFIRMED.




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