              Case: 16-10390    Date Filed: 02/21/2017   Page: 1 of 8


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-10390
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:14-cv-03724-AT

JAMAROLE ALDRIDGE,

                                                               Petitioner-Appellant,

                                       versus

SCOTT CRICKMAR,

                                                              Respondent-Appellee.
                           ________________________

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

                                (February 21. 2017)

Before MARTIN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Jamarole Aldridge, a Georgia prisoner, appeals the district court’s denial of

his petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court

granted Aldridge a certificate of appealability (“COA”) on the claims that the
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prosecutor engaged in misconduct and his appellate counsel was ineffective for

failing to investigate and raise the resulting prosecutorial misconduct claim during

Aldridge’s direct appeal. Aldridge argues the prosecutor committed misconduct by

allowing Mesa Copeland, Aldridge’s codefendant, to testify that she would serve

three years in prison as part of her plea deal when she actually received only five

years of probation and by failing to reveal the actual plea deal. After careful

review, we affirm.

                                         I.
      Aldridge and Copeland forced a victim into the victim’s car. They then

made the victim drive them nearby and they forced her out, stealing her car, purse,

and other belongings. Aldridge v. State, 713 S.E.2d 682, 683–84 (Ga. Ct. App.

2011). A jury found Aldridge guilty of robbery by intimidation, aggravated

assault, and kidnapping. Id. at 684. The trial court sentenced him to 40-years

imprisonment. Id.

      At Aldridge’s trial, Copeland testified she had agreed to a deal with the State

to serve three years of a five-year sentence in exchange for testifying against

Aldridge. On cross-examination, Copeland revealed she would face as much as a

life sentence for her crimes if she had not taken the deal. About a month after trial

Copeland was sentenced to only five years of probation. Aldridge did not raise a

prosecutorial misconduct claim on direct appeal.


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      In his state habeas petition, Aldridge alleged the prosecutor engaged in

misconduct by not revealing Copeland’s deal and by allowing false testimony

about the deal. Also, Aldridge alleged that his appellate counsel provided

ineffective assistance by failing to raise the prosecutorial misconduct claims on

appeal. At the state postconviction evidentiary hearing, Aldridge testified that he

called his codefendant at her home five months into his sentence and she answered

the call. He said he asked his appellate lawyer to investigate how Copeland could

answer her phone if she was serving a three-year prison sentence. Aldridge’s

appellate lawyer contradicted this, and testified that Aldridge did not bring the

issue of Copeland’s whereabouts to her attention.

      The state postconviction court found the prosecutorial misconduct claims

had been procedurally defaulted because they were not raised at trial or on direct

appeal. It also found Aldridge failed to prove ineffective assistance of counsel

because he offered only speculation about Copeland’s alleged deal or false

testimony. The Supreme Court of Georgia denied Aldridge’s application for a

Certificate of Probable Cause (“CPC”) without explanation.

      Aldridge then filed a federal habeas petition under § 2254 that he later

amended to include the same prosecutorial misconduct and ineffective assistance

claims. The magistrate judge found that Aldridge’s prosecutorial misconduct

claim was procedurally barred. The magistrate also found that the record was not

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sufficient to show a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194

(1963),1 or Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972),2 and thus

not sufficient to show appellate counsel was ineffective for failing to pursue those

claims. On review of the magistrate judge’s report and recommendation, the

district court

       note[d] that it [was] troubled by the Giglio issue and in particular, the
       facts relating to the purportedly new plea agreement that Copeland
       received the benefit of—one for an entirely probated sentence—one
       month after the Defendant’s trial. It somewhat stretches credulity to
       believe that the Prosecutor did not know the terms of the plea
       agreement he had agreed to or would extend to Copeland in the event
       she hewed to testimony beneficial to the prosecution’s case.

However, the court was not willing to second guess the jury verdict given the

absence of evidence regarding the plea deal. The district court granted a COA on

these claims.




       1
         To prove a Brady violation, a petitioner must establish: (1) the evidence at issue is
favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the
evidence was suppressed by the State, either willfully or inadvertently; and (3) the petitioner
suffered prejudice as a result. Downs v. Sec’y, Florida Dep’t of Corr., 738 F.3d 240, 258 (11th
Cir. 2013).

       2
          “To establish a Giglio claim, a habeas petitioner must prove: (1) the prosecutor
knowingly used perjured testimony or failed to correct what he subsequently learned was false
testimony; and (2) such use was material, i.e., that there is any reasonable likelihood that the
false testimony could have affected the judgment.” Guzman v. Sec’y, Dep’t of Corr., 663 F.3d
1336, 1348 (11th Cir. 2011) (quotation omitted and alteration adopted).


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                                         II.

      We review de novo the district court’s denial of a habeas petition under 28

U.S.C. § 2254. Maharaj v. Sec’y for the Dep’t of Corr., 304 F.3d 1345, 1348 (11th

Cir. 2002) (per curiam). “An ineffective assistance of counsel claim is a mixed

question of law and fact subject to de novo review.” Ward v. Hall, 592 F.3d 1144,

1155 (11th Cir. 2010) (quotation omitted).

      28 U.S.C. § 2254(d) prohibits federal courts from granting habeas relief on

claims previously adjudicated on the merits in state court unless the state court

decision (1) “was contrary to, or involved an unreasonable application of, clearly

established federal law as determined by the Supreme Court,” or (2) “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)(1)-(2). In addition, federal habeas

review of a claim is typically precluded when the petitioner procedurally defaulted

the claim in state court. Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 1284

(11th Cir. 2012). A petitioner may overcome procedural default, however, if he

shows cause for the default and actual prejudice resulting from the alleged

constitutional violation. Ward, 592 F.3d at 1156.

      The state postconviction court found that Aldridge’s prosecutorial

misconduct claim was procedurally defaulted. Aldridge does not contend that he




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has established “cause and prejudice” to overcome this procedural bar. As a result,

federal habeas review of this claim is precluded.

      This leaves Aldridge’s claim that his appellate counsel was ineffective for

failing to raise a prosecutorial misconduct claim on direct appeal. “Claims of

ineffective assistance of appellate counsel are governed by the same standards

applied to trial counsel under Strickland.” Brooks v. Comm’r, Ala. Dep’t of Corr.,

719 F.3d 1292, 1300 (11th Cir. 2013) (quotation omitted). Thus, to succeed on his

ineffective assistance claim, Aldridge must show (1) counsel’s representation fell

below an objective standard of reasonableness, and (2) counsel’s deficient

performance prejudiced him. Nejad v. Att’y Gen., 830 F.3d 1280, 1290 (11th Cir.

2016) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)).

“[A] defendant is prejudiced by his counsel’s deficient performance if there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Porter v. McCollum, 558 U.S. 30, 40, 130

S. Ct. 447, 453 (2009) (per curiam) (quotation omitted). “The standards created by

Strickland and § 2254(d) are both highly deferential, and when the two apply in

tandem, review is doubly so.” Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct.

770, 788 (2011) (quotation and citations omitted).

      We conclude that Aldridge cannot overcome this highly deferential standard.

At the state postconviction evidentiary hearing, Aldridge provided no evidence of

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Copeland’s eventual sentence other than his testimony that five months after his

conviction Copeland had answered the telephone at her home. Although Aldridge

later submitted evidence with his federal habeas petition that Copeland was

sentenced to only five years of probation, this evidence was not presented in state

court. Because our review under § 2254 “is limited to the record that was before

the state court that adjudicated the claim on the merits,” Cullen v. Pinholster, 563

U.S. 170, 181, 131 S. Ct. 1388, 1398 (2011), we may not consider this evidence of

Copeland’s actual sentence.

      The state postconviction court found that Aldridge had failed to show

ineffective assistance of counsel because he offered only speculation about

Copeland’s alleged deal or false testimony. The record is silent about what

happened between Copeland’s testimony and her sentencing. Aldridge did not

introduce evidence of Copeland’s plea deal itself or Copeland’s sentencing

hearing. Neither did he introduce evidence in state court about the sentence

Copeland actually received. Thus, the record before the state postconviction court

was insufficient to show that Copeland falsely testified about the deal she received

for testifying against Aldridge. In the absence of more specific evidence

concerning the plea deal and Copeland’s actual sentence, the state court’s

determination that any prosecutorial misconduct was purely speculative—and thus

appellate counsel was not ineffective for failing to pursue such a claim on appeal—

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was not unreasonable under § 2254. On this record, we must affirm the district

court’s denial of habeas relief.

      AFFIRMED.




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