                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                     JUNE 4, 2008
                                                  THOMAS K. KAHN
                            No. 07-14174
                                                       CLERK
                         Non-Argument Calendar
                       ________________________

                   D. C. Docket No. 04-20964-CV-ASG

MICHAEL OJEDA,


                                                 Petitioner-Appellant,

                                  versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
Secretary, Department of Corrections,

                                                 Respondent-Appellee.

                       ________________________

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

                               (June 4, 2008)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:
       Petitioner Michael Ojeda (“Ojeda”), a Florida state prisoner proceeding pro

se, appeals the denial of his petition for habeas corpus. We granted a certificate of

appealability (“COA”) on the issue of whether Ojeda received ineffective

assistance of counsel. Ojeda argues that he received ineffective assistance of

counsel in three ways: (1) counsel failed to move to suppress a confession that he

never gave and was obtained in violation of the law; (2) counsel failed to

interview, depose, and investigate state and defense alibi witnesses; and (3)

counsel failed to investigate and introduce exculpatory evidence of a footprint

found at the scene of the crime.1

       “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).

       Because Ojeda filed his federal habeas petition after April 24, 1996, this case



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         Ojeda also argues that he should have been granted an evidentiary hearing on his claims
of ineffectiveness. While not specifically covered by the COA, we have jurisdiction to consider
the issue because it is subsumed into the question of whether counsel was ineffective. See
Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (finding that an evidentiary
hearing was warranted on an ineffective assistance of counsel claim even though the COA only
specifically addressed the issue of whether the movant received ineffective assistance). An
evidentiary hearing, however, was unnecessary because the trial transcripts sufficiently
addressed the issue, and thus
a hearing would not have added any new information. See Schriro v. Landrigan, 550 U.S. ___,
___, 27 S. Ct. 1933, 1940, 167 L. Ed. 2d 836 (2007) (holding that if the record refutes the factual
allegations in the petition or otherwise precludes habeas relief, a district court is not required to
hold an evidentiary hearing).

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is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

which “establishes a highly deferential standard for reviewing state court

judgments.” McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005) (citation

omitted). An application for a writ of habeas corpus may be granted when any

claim that was adjudicated on the merits in State court proceedings resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law or “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). The Supreme Court has said that

             Under the ‘contrary to’ clause, a federal habeas court may grant
      the writ if the state court arrives at a conclusion opposite to that
      reached by this Court on a question of law or if the state court decides
      a case differently than this Court has on a set of materially
      indistinguishable facts. Under the ‘unreasonable application’ clause, a
      federal habeas court may grant the writ if the state court identifies the
      correct governing legal principle from this Court’s decisions but
      unreasonably applies that principle to the facts of the prisoner’s case.


Williams v. Taylor, 529 U.S. 362, 412-413, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d

389 (2000). The determination of a factual issue made by a state court shall be

presumed to be correct unless rebutted by the applicant by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

      To demonstrate ineffective assistance of counsel, a prisoner must show that



                                          3
counsel’s performance was deficient and that the deficient performance prejudiced

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

80 L. Ed. 2d 674 (1984). There is no reason for a court deciding an ineffective-

assistance-of-counsel claim to approach the inquiry in the same order, or even to

address both components of the inquiry, if the petitioner makes an insufficient

showing on one. Id. at 697, 104 S. Ct. at 2069.

      The proper measure of attorney performance is reasonableness under the

prevailing professional norms, and judicial scrutiny of counsel’s performance must

be highly deferential. Id. at 688, 104 S. Ct. at 2065. If the record is incomplete or

unclear about counsel’s actions, then it is presumed that counsel exercised

reasonable professional judgment. Chandler v. United States, 218 F.3d 1305, 1314

n.15 (11th Cir. 2000) (en banc). Counsel is not incompetent so long as the

particular approach taken could be considered sound strategy. Id. at 1314.

      To prove prejudice, “[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. The court must also consider the totality of the evidence before the judge or

jury in making the prejudice determination. Id. at 695, 104 S. Ct. at 2069.

      “Th[e] correct approach toward investigation reflects the reality that lawyers



                                           4
do not enjoy the benefit of endless time, energy or financial resources.” Rogers v.

Zant, 13 F.3d 384, 387 (11th Cir. 1994). To be effective, a lawyer is not required

to “pursue every path until it bears fruit or until all hope withers.” Williams v.

Head, 185 F.3d 1223, 1237 (11th Cir. 1999) (citation omitted). “The question is

whether . . . ending an investigation short of exhaustion, was a reasonable tactical

decision. If so, such a choice must be given a strong presumption of correctness,

and the inquiry is generally at an end.” Mills v. Singletary, 63 F.3d 999, 1024 (11th

Cir. 1995) (citation omitted).

      A lawyer’s failure to raise a meritless issue cannot prejudice a client. See

United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992). The burden of

persuasion is on the petitioner to prove, by a preponderance of the evidence, that

counsel’s performance was unreasonable. Chandler, 218 F.3d at 1313.

      After reviewing the record, we conclude that Ojeda failed to demonstrate

that the state habeas court unreasonably applied federal law in denying his claims

of ineffective assistance of counsel because the motion to suppress would have

been meritless, and counsel’s decision to not call alibi witnesses was a reasonable

strategic decision. Moreover, we conclude that the district court did not err in

finding that counsel’s failure to introduce the footprint was not prejudicial to

Ojeda because the evidence would not have reasonably led to a different outcome.



                                           5
Accordingly, we affirm the judgment denying habeas relief.

      AFFIRMED.




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