                                                                [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT            FILED
                           ________________________ U.S. COURT OF APPEALS
                                                                ELEVENTH CIRCUIT
                                                                   JULY 1, 2008
                                 No. 07-14025
                                                                 THOMAS K. KAHN
                             Non-Argument Calendar
                                                                     CLERK
                           ________________________

                       D. C. Docket No. 06-21725-CV-FAM

ROOSEVELT BROWN,

                                                      Petitioner-Appellant,

                                       versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
JAMES MCDONOUGH,
                                   Respondent-Appellee.

                           ________________________

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

                                    (July 1, 2008)

Before ANDERSON, BIRCH and PRYOR, Circuit Judges.

PER CURIAM:

      Roosevelt Brown, a Florida prisoner proceeding pro se, appeals the district

court’s denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2254. The certificate of appealability (COA) addressed a claim not raised in

Brown’s petition and not squarely addressed by the district court: whether the

admission of a police officer’s identification testimony violated Brown’s

constitutional rights under the Sixth Amendment by limiting the scope of cross-

examination. Because we have the discretion to address the issue presented by the

COA or any other issue presented by the parties, we also review the Confrontation

Clause argument advanced by Brown since it arises out of the same undisputed

facts as the evidentiary issue identified in the COA. For the reasons that follow,

we AFFIRM the denial of habeas corpus relief.

                                 I. BACKGROUND

      Brown, imprisoned for armed robbery following his 2003 conviction, filed

this pro se § 2254 petition alleging, inter alia, that his conviction was obtained

through the use of prejudicial identification testimony by Javier Rodriguez, a law

enforcement officer. R1-1 at 5-6, Statement of Facts. A magistrate judge ordered

McDonough to file an answer to show cause why the petition should not be

granted and to file a “transcript of [Brown’] trial, copies of the briefs on filed on

direct appeal, and any motions seeking [postconviction relief], or state habeas

corpus, orders entered thereon, and briefs on appeal therefrom.” R1-8 at 1.

      Prior to his jury trial in Dade County, Florida, Brown filed a motion in



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limine, requesting that the trial court prohibit Rodriguez from identifying Brown in

a videotape surveillance footage of the crime. R1-18 at Florida District Court of

Appeals Record on Appeal (“ROA”) Vol. II at 217-18. Brown argued that the

testimony would cause prejudice since the jury could infer from Rodriguez’s

occupation as a police officer that Brown had prior contact with the police.

Additionally, Brown asserted that, if he did not inquire into Rodriguez’s

occupation, his ability to cross-examine the witness for bias would be

unconstitutionally restricted and thus deny him a fair trial. Upon hearing the

state’s argument, the trial court denied Brown’s motion, finding that Rodriguez’s

testimony was admissible so long as he did not reveal his occupation. Id. at 222.

Further, the court agreed to admonish any officer called to testify that Rodriguez’s

occupation could not be revealed to the jury.

      At trial, the state called Herbert Anderson, the owner of the insurance

company allegedly robbed by Brown and three other men. R1-18 at Florida Circuit

Court Jury Trial Transcript (“TT”) at 214-19. He positively identified Brown as

one of the robbers from the video surveillance footage. During cross-examination,

however, Anderson conceded that at his deposition he had stated that he “did not

do a lot of observing” during the crime. Id. at 228-29, 237. Further, he incorrectly

reported Brown’s weight to the police, observed him for three minutes or less over



                                          3
three years prior to trial, and did not wear his glasses during the robbery. Id. at

243-47.

      The state called Rodriguez to testify. Prior to Rodriguez’s testimony, the

court instructed him not to disclose his occupation as a police officer. Id. at

284-85. Brown renewed his objections to Rodriguez’s testimony, asserting that the

jury might infer from his clothing that he was an undercover officer but the trial

judge commented that Rodriguez was “dressed pretty normal.” Id. at 285.

Thereafter, Rodriguez testified that, before the alleged robbery, he had contact with

Brown for approximately six to eight hours. Id. at 287. He identified the person in

the surveillance videotape as Brown. Id. at 288-89. During the direct testimony,

neither the prosecution nor the witness referenced his occupation as a police

officer. Id. at 286-289. After direct examination, Brown conducted the following

cross-examination:

      Q.     Mr. Rodriguez, on January 14, 1999[,] you were not there at the
      scene . . . at . . . 7803 N.W. 27th Avenue . . . , right?

      A.     No, I was not.

      Q.     You just viewed a video tape, right?

      A.     Photograph and video tape, yes, sir.

      Q.     The video tape is only a few seconds, right?

      A.     I don’t know how long it is. I saw a few seconds of it.

                                           4
      Q.    Mr. Brown is approximately how many pounds would you,
      estimate he is?
      ....

      [A.]   I believe maybe 320 pounds.

      Q.     So you would estimate around 320 or so?

      A.     Yes. I am not sure.

Id. at 290. Following cross-examination, the state rested its case, and Brown

renewed his objection to Rodriguez’s identification testimony, which the trial court

denied. Id. at 291-92. The jury found Brown guilty, and he was sentenced to life

imprisonment. R1-18 at ROA Vol. II at 156, 169-71.

      Subsequently, Brown filed a counseled direct appeal, arguing, in pertinent

part, that the admission of Rodriguez’s testimony denied his right to a fair trial.

R1-17, Exh. C at 11-16. He asserted that the jury inferred that Rodriguez was a

police officer from his testimony and that Rodriguez identified Brown based on his

prior contacts with law enforcement. The state appellate court affirmed the

judgment of conviction and sentence. Brown v. State, 861 So. 2d 1161 (Fla. Dist.

Ct. App. 2003). Brown filed a pro se motion for postconviction relief, alleging,

inter alia, that the admission of Rodriguez’s testimony denied his right to a fair trial

because it was highly prejudicial and the state had other adequate identification

testimony. R1-17, Exh. E at 7-8. He also asserted that the trial court denied his



                                           5
right to fully cross-examine the witness. The trial court denied relief, finding that

the issue was “without merit and not cognizable on a collateral attack as [it] was

raised on direct appeal.” Id., Exh. F at Order Denying Defendant’s Pro Se Motion

for Postconviction Relief. Brown’s motion for a rehearing was also denied. Id.,

Exh. F at Order Denying Defendant’s Request for Rehearing on His Motion for

Postconviction Relief. On appeal, the state appellate court denied relief. Brown v.

State, 932 So. 2d 201 (Fla. Dist. Ct. App. 2006). While his motion for

postconviction relief appeal was pending, Brown filed a petition for writ of habeas

corpus with the state appellate court, alleging ineffective assistance of counsel.

R1-17, Exh. G. The petition was denied. Brown v. State, 913 So. 2d 606 (Fla.

Dist. Ct. App. 2005).

      In a supplemental response to Brown’s § 2254 petition, the state argued that

Brown’s claim was barred from federal habeas review because the state trial court

found that his motion for postconviction relief failed to state a claim for relief and

was not cognizable on collateral attack. R1-22 at 3-4. Further, it contended that

the state trial court properly admitted the identification testimony because

Rodriguez did not reveal his occupation as a police officer. It also maintained that

the state court’s decision did not result in a “fundamentally unfair trial,” contradict

federal law, or unreasonably apply relevant Supreme Court precedent. Id. at 10.



                                           6
      Brown replied that his claim was not procedurally defaulted because it was

properly raised on direct appeal. R1-25 at 4-5. He maintained that the state trial

court erred in admitting Rodriguez’s identification testimony because the state

presented other adequate identification testimony. He also, for the first time in the

habeas proceedings, alleged that the admission of the testimony limited his ability

to cross-examine Rodriguez because his occupation could not be revealed to the

jury without substantial prejudice. Id. at 6-7, n.2.

      In the Report and Recommendation (“R&R”), the magistrate judge

concluded that Brown’s claim was not procedurally barred because he properly

presented it on direct appeal. R1-26 at 5-6. The R&R also concluded that the state

trial court did not err in admitting Rodriguez’s identification testimony. It noted

that Rodriguez’s testimony was based upon his “personal previous observations of

Brown” and “was helpful to the jury.” Id. at 17. Further, it stated that the

testimony did not prejudice Brown because Rodriguez “was never identified as a

police officer in connection with his ability to identify [Brown].” Id.. Moreover,

the state trial court “specifically instructed the prosecution and the witness not to

divulge the occupation of the witness before the jury.” Id. at 18. It concluded that

the decision neither violated Florida law nor adversely affected the fundamental

fairness of the trial. Id. at 18-19. Accordingly, it recommended that the district



                                           7
court deny relief on the claim. Id. at 20. The R&R did not address whether the

admission of Rodriguez’s testimony violated his rights under the Confrontation

Clause. Id. at 17-20.

      Brown filed objections to the R&R, arguing that the admission of

Rodriguez’s testimony was improper because the prosecution had other adequate

sources of identification testimony. R1-29 at 4-5. Further, he claimed that the trial

court restrained his ability to effectively cross-examine Rodriguez, thereby

violating his Confrontation Clause rights under Davis v. Alaska, 415 U.S. 308, 94

S. Ct. 1105 (1974). Id. at 5-6. He also maintained that the prejudicial effect of the

testimony outweighed its probative value in direct conflict with Old Chief v.

United States, 519 U.S. 172, 117 S. Ct. 644 (1997).

      The district court adopted the R&R, overruled Brown’s objections, and

denied his § 2254 petition. R1-30. Brown filed a motion for COA, which stressed

that the admission of Rodriguez’s testimony violated his cross-examination rights

under the Confrontation Clause. R1-32 at 4-5. The district court granted Brown’s

motion for COA as to:

      Whether or not the admission of identification testimony by a police
      officer whose testimony followed the unequivocal identification of the
      petitioner by an eyewitness to the bank robbery, whose occupation
      (police officer) was kept secret from the jury, and who identified the
      petitioner from a still photograph of the bank robbery violated the
      petitioner’s constitutional right to cross-examination of the police

                                          8
      officer because the defendant feared that his prior contacts with the
      police would be revealed to the jury.

R1-35.

                                  II. DISCUSSION

      An erroneously issued COA does not deprive us of appellate jurisdiction.

Thomas v. Crosby, 371 F.3d 782, 784 (11th Cir. 2004). The purpose of the COA

requirement is to “eliminate those appeals that have little or no merit, thereby

preserving judicial resources.” Id. at 785. “Once the parties have briefed and

argued the issue set out in a COA and we have reached the point of considering an

appeal on the merits, the time for scrutinizing the COA has long since passed.” Id.

Thus, we will generally not address issues outside of the scope of a COA on

appeal. Maharaj v. Sec’y for the Dep’t of Corrs., 432 F.3d 1292, 1302-03 (11th

Cir. 2005). Nevertheless, given an erroneous COA, we may exercise our discretion

to (1) remand to the district court for enumeration of issues or (2) retain

jurisdiction and rule on any issues raised by the petitioner that we deem worthy of

a COA. Putman v. Head, 268 F.3d 1223, 1228 (11th Cir. 2001).

      Brown asserted a violation of his right to cross-examine Rodriguez under the

Confrontation Clause in his reply to the state’s supplemental response to the order

to show cause and in his objections to the R&R. See R1-25, 29. Brown did not,

however, originally advance the argument in his § 2254 petition, and the district

                                           9
court did not consider the issue below. See R1-1, 30. Instead, the district court’s

order adopted the R&R in full, which addressed whether the state trial court erred

in admitting Rodriguez’s identification testimony because of its prejudicial effect.

See R1-26 at 17-19. Nevertheless, Brown raised the Confrontation Clause issue in

his request for COA, which the district court granted. See R1-32, 35.

      Despite the defects in the COA, we have discretion to address the issue in

the COA or any other issue we deem worthy. See Putman, 268 F.3d at 1228; see

also Thomas, 371 F.3d at 785. As to the evidentiary issue raised in Brown’s

petition and squarely addressed by the magistrate judge and the district court, we

need not address whether the admission of Rodriguez’s testimony violated Florida

evidentiary law or denied Brown a fair trial since reasonable jurists would not

“find the district court’s assessment of the constitutional claims debatable or

wrong.” See Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000).

Brown did not argue that the Florida evidentiary law allowing the admission of

officer identification testimony is unconstitutional. See R1-29 at 4-5. Moreover,

the record reveals that the trial testimony did not disclose Rodriguez’s occupation

as a police officer. See R1-18, TT at 286-89. Thus, Brown’s claim that the jury

inferred his prior contacts with the police from Rodriguez’s testimony is purely

speculative and did not establish a “substantial showing of the denial of a



                                          10
constitutional right” under Old Chief. See § 2253(c)(2).

      On appeal, Brown argues that the district court erred in dismissing the

petition because the state trial court violated the Confrontation Clause by limiting

the scope of Rodriguez’s cross-examination and excluding reference to his

occupation as a police officer. Further, he maintains that a reasonable jury could

have found that Rodriguez lacked credibility had he been able to fully cross-

examine the witness. Relying on United States v. Pierce, 136 F.3d 770 (11th Cir.

1998), he asserts that the testimony was unnecessary because the state had other

adequate identification testimony, and he would have suffered prejudice by

revealing Rodriguez’s occupation as an officer. He submits that the error had a

substantial, injurious effect on the jury’s verdict because Rodriguez’s identification

testimony was “half of the [s]tate’s case.” Appellant’s brief at 13.

      The state responds that Pierce is distinguishable as it involved a federal trial.

It argues that the admission of Rodriguez’s identification testimony did not violate

the Florida laws of evidence because the video footage was admitted into evidence.

Further, it notes that Florida evidentiary law allows an officer to present lay

opinion identification testimony so long as the state does not disclose the

occupation of the witness. It submits that, even if Rodriguez’s identification

testimony was not necessary to the state’s case, it was still relevant and admissible.



                                          11
It asserts that Brown has failed to present more than a mere conclusory allegation

of an adverse effect on his right to cross-examination. It concludes that any error

was harmless given the other substantial evidence of Brown’s guilt.

      In reviewing “a district court’s denial of a 2254 petition, we review

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

for clear error.” Stewart v. Sec’y, Dep’t of Corrs., 476 F.3d 1193, 1208 (11th Cir.

2007). Under § 2254 as amended by the Anti-Terrorism and Effective Death

Penalty Act of 1996, our review is limited and “highly deferential” to the decisions

of the state courts. Id. The state court’s factual determinations are “presumed to

be correct” and the petitioner bears “the burden of rebutting the presumption . . . by

clear and convincing evidence.” Marquard v. Sec’y for the Dep’t of Corrs., 429

F.3d 1278, 1303 (11th Cir. 2005). Habeas relief is available only in cases where

the claims were adjudicated on the merits and the adjudication “resulted in a

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

established federal law” or “was based on an unreasonable determination of the

facts in light of the evidence presented in state court.” Crowe v. Hall, 490 F.3d

840, 844 (11th Cir. 2007), cert. denied,    U.S.   ,   S. Ct.   (Apr 21, 2008).

      Clearly established federal law embraces “the holdings, as opposed to the

dicta, of the United States Supreme Court as of the time of the relevant state court



                                           12
decision.” Stewart, 476 F.3d at 1208. Further, a decision is “contrary to”

established law if (1) the state court arrived at an opposite conclusion on a question

of law as interpreted by the Supreme Court or (2) the court arrived at a different

result when confronted with “materially indistinguishable” facts from relevant

Supreme Court precedent. Jennings v. McDonough, 490 F.3d 1230, 1236 (11th

Cir. 2007), cert. denied,   U.S.   , 122 S. Ct. 846 (2008). An application of

established law is unreasonable “if the state court unreasonably extends or fails to

extend a clearly established legal principle to a new context.” Id.

      “In all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him . . . .” U.S. Const. amend. VI. The right

is secured for defendants in state as well as federal criminal proceedings by the

Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 1068

(1965). The Confrontation Clause necessarily includes the right to cross-

examination a witness. Smith v. Illinois, 390 U.S. 129, 131, 88 S. Ct. 748, 749

(1968). Where credibility is at issue, the trial court cannot ordinarily prohibit the

defense from inquiring into a witness’s identity and residence. Id. at 131, 88 S. Ct.

at 750. Those questions are “not only an appropriate preliminary to the cross-

examination of the witness, but . . . [are] an essential step in identifying the witness

with his environment, to which cross-examination may always be directed.” Id. at



                                           13
132, 88 S. Ct. at 750 (quoting Alford v. United States, 282 U.S. 687, 693, 51 S. Ct.

218, 220 (1931)). Similarly, the trial court cannot limit the scope of cross-

examination to preclude an inquiry into a witness’s probationary status as a

juvenile delinquent to show bias or motive. Davis, 415 U.S. at 318, 94 S.

Ct. at 1111. Defense counsel must be able “to make a record from which to argue

why [a witness] might have been biased or otherwise lacked that degree of

impartiality expected of a witness at trial.” Id. He must be “permitted to expose to

the jury the facts from which jurors, as the sole triers of fact and credibility, could

appropriately draw inferences relating to the reliability of the witness.” Id.

      Nevertheless, the right to cross-examination is not without limits, as “the

Confrontation Clause guarantees an opportunity for effective cross-examination,

not cross-examination that is effective in whatever way, and to whatever extent, the

defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 294

(1985). The scope of cross-examination regarding a particular line of inquiry is

“within the sound discretion of the trial court,” and “it may exercise a reasonable

judgment in determining when [a] subject is [inappropriate].” Alford, 282 U.S. at

694, 51 S. Ct. at 220. “[T]rial judges retain wide latitude . . . to impose reasonable

limits on such cross-examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues, the witness’[s] safety, or



                                           14
interrogation that is repetitive or only marginally relevant.” Delaware v. Van

Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435 (1986).

      The state trial court limited the scope of cross-examination by instructing

Rodriguez not to reveal his profession to the jury. See R1-18 at TT at 222-23.

Under Smith and its progeny, such a limitation could violate Brown’s rights under

the Confrontation Clause by preventing “the opponent the opportunity of cross-

examination.” See Davis, 415 U.S. at 315-16, 94 S. Ct. at 1110. It prevented the

defense counsel from, among other things, challenging the circumstances of

Rodriguez’s prior contact with Brown. R1-18 at TT at 290. However, the trial

court nevertheless had discretion to impose “reasonable limits” on the cross-

examination based on its concern of possible prejudice to Brown inferred from his

prior contact with law enforcement. See Van Arsdall, 475 U.S. at 679, 106 S. Ct.

at 1435; see also Old Chief, 519 U.S. at 181, 117 S. Ct. at 650 (“[T]he risk that a

jury will convict for crimes other than those charged-or that, uncertain of guilt, it

will convict anyway because a bad person deserves punishment-creates a

prejudicial effect that outweighs ordinary relevance.”). Thus, the state court’s

decision was not “contrary to” the controlling federal law in existence at the time

of its decision. See Jennings, 490 F.3d at 1236.

      Moreover, the relevant Supreme Court precedent is distinguishable from



                                           15
Brown’s case as Rodriguez’s testimony involved potential prejudice to the

defendant rather than the possibility of prejudice to a witness. See, e.g., Olden v.

Kentucky, 488 U.S. 227, 232, 109 S. Ct. 480, 483(1988) (refusal to allow cross-

examination regarding witness’s interracial relationship with boyfriend violated

Confrontation Clause); Van Arsdall, 475 U.S. at 676, 106 S. Ct. at 1433-34 (refusal

to allow cross-examination regarding dismissal of witness’s public drunkenness

charge violated Confrontation Clause); Davis, 415 U.S. at 310-11, 94 S. Ct.

at 1107-08 (refusal to allow cross-examination regarding witness’s probationary

status violated Confrontation Clause). Because the Supreme Court has never

considered facts “materially indistinguishable” from Brown’s case, the state court’s

decision could not have been “contrary to” federal law as it existed at the time. See

Jennings, 490 F.3d at 1236.

      Brown asserts that the state trial court acted unreasonably in excluding

reference to Rodriguez’s occupation because the state had other adequate

identification testimony. However, as Brown conceded on direct appeal, the

defense counsel significantly diminished the potency of Anderson’s identification

testimony on cross-examination. See R1-17, Exh. C at 15. Thus, Rodriguez’s

positive identification of Brown became the crux of the state’s case, and the trial

court did not act unreasonably in admitting the evidence. See Pierce, 136 F.3d at



                                          16
776 (discouraging use of lay opinion identification by officers absent other

adequate identification testimony). Because the trial court’s decision to limit the

scope of Rodriguez’s testimony was neither contrary to, nor an unreasonable

application of, the relevant Supreme Court precedent, the district court did not err

in denying Brown’s petition.

                                III. CONCLUSION

      For the reasons stated above, we AFFIRM the denial of Brown’s petition

for writ of habeas corpus pursuant to 28 U.S.C. § 2254.




                                          17
