              Case: 11-11255     Date Filed: 02/12/2013    Page: 1 of 6

                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 11-11255
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 4:06-cv-00554-MP-EMT



ANDRE MCKENZIE,

                                                                Petitioner-Appellant,

                                       versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                               Respondent-Appellee.

                           ________________________

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

                                 (February 12, 2013)

Before BARKETT, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Andre McKenzie, a Florida prisoner serving a life sentence, appeals the

district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus.
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We granted McKenzie a certificate of appealability on the issue of “[w]hether the

district court erred by denying McKenzie’s claim that his trial counsel furnished

ineffective assistance by failing to object to witness Anthony Williams’s testimony

regarding how he became a state witness.” On appeal, McKenzie argues that his

trial counsel’s failure to object to Williams’s hearsay testimony, request a limiting

instruction, or move for a mistrial, and the cumulative effect of these errors,

constituted ineffective assistance of counsel.

      A habeas petition based on ineffective assistance of counsel presents a

mixed question of law and fact that we review de novo. Sims v. Singletary, 155

F.3d 1297, 1304 (11th Cir. 1998). Under § 2254(d), a federal court may not grant

habeas relief on claims that were previously adjudicated in state court, unless the

state court’s adjudication “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court,” 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.

28 U.S.C. § 2254(d)(1)-(2). A state court’s factual determinations are presumed

correct unless the petitioner can rebut that presumption by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

      “The ‘contrary to’ and ‘unreasonable application’ clauses of § 2254(d)(1)

are separate bases for reviewing a state court’s decisions.” Putman v. Head, 268


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F.3d 1223, 1241 (11th Cir. 2001). A state court’s decision is “contrary to” federal

law if (1) the court arrives at a conclusion opposite to that reached by the U.S.

Supreme Court on a question of law, or (2) the court confronts facts that are

“materially indistinguishable” from relevant Supreme Court precedent, but arrives

at a different result from that arrived at by the Supreme Court. Id. An

“unreasonable application” of federal law occurs when the state court either

(1) correctly identifies the legal rule from Supreme Court precedent but

unreasonably applies the rule to the facts of the case, or (2) “unreasonably extends,

or unreasonably declines to extend, a legal principle from Supreme Court case law

to a new context.” Id.

      To succeed on an ineffective-assistance claim under Strickland v.

Washington, 466 U.S. 668, 687 (1984), a petitioner must show that (1) his

attorney’s performance was deficient, and (2) the deficient performance prejudiced

his defense. Under Strickland, counsel’s performance is deficient only if it falls

below an objective standard of reasonableness considering all the circumstances,

and a court considering a claim of ineffective assistance must apply a strong

presumption that counsel’s representation was “within the wide range of

reasonable professional assistance.” 466 U.S. at 688-90. With regard to the

prejudice prong, “[t]he defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would


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have been different.” Id. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. “When a defendant

challenges a conviction, the question is whether there is a reasonable probability

that, absent the errors, the factfinder would have had a reasonable doubt respecting

guilt.” Id. at 695. To make this determination, we review “the totality of the

evidence before the judge or jury.” Id.

      With regard to McKenzie’s claim relating to his trial counsel’s failure to

object to Williams’s hearsay testimony, the state court concluded that McKenzie’s

trial counsel’s performance was not “unreasonably deficient.” Strickland requires

only that a trial counsel’s performance be considered “deficient,” and thus, the

state court’s decision is arguably contrary to clearly established law on Strickland’s

deficiency prong. However, we need not decide if the state court’s ruling was

contrary to Strickland and therefore owed no deference under 28 U.S.C. 2254(d),

because we cannot say on de novo review that that McKenzie has established that

he received ineffective assistance of counsel as to the prejudice prong. See

Berghuis v. Thompkins, 130 S. Ct. 2250, 2265 (2010) (explaining that courts can

deny writs of habeas corpus by engaging in de novo review when it is unclear

whether AEDPA deference applies, because a petitioner is not be entitled to a writ

of habeas corpus if his or her claim is rejected on de novo review).




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      McKenzie argues that he proved both deficient performance and prejudice

based on his trial counsel’s failure to object or to move to strike the testimony of

the state’s witness, Williams, who explained that it was only after the police told

him that another person, Coy Evans, had already told the police what happened on

the night of the murder of Derrick McKinney that he agreed to be a witness against

McKenzie. He argues that Williams’s testimony was not only double hearsay but

prejudicial because the hearsay evidence of Evans’s statement to the police

corroborated Williams’s version of the events surrounding the murder of

McKinney.

      We need not resolve whether McKenzie’s counsel was deficient when he

failed to object to Williams’s testimony because we cannot say that McKenzie has

established that the error prejudiced him, i.e. that there is a reasonable probability

that, but for the failure to object, the jury would have had reasonable doubt

regarding McKenzie’s guilt. See Strickland, 466 U.S. at 697 (explaining that a

court need not address the performance component of a Strickland ineffective

assistance of counsel claim where the defendant fails to make a sufficient showing

of prejudice). By the time the allegedly prejudicial question was asked, Williams

had already testified consistently with three other witnesses as to (1) the motive for

the murder of McKinney; (2) McKinney being in the car with McKenzie;

(3) McKinney attempting to lead McKenzie to the individuals who had earlier in


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the day robbed McKenzie; and (4) McKinney being unable to find the robbers for

McKenzie. If anything, the testimony provided McKenzie’s trial counsel with a

new opportunity to attempt to impeach Williams by showing that Williams had at

first lied to the police, Williams only spoke to police after Evans implicated

Williams, and Evans was charged with murdering a police officer. Moreover,

McKenzie’s trial counsel used the testimony to argue in closing that Williams was

unreliable and that his testimony was motivated by pressure from the police.

Accordingly, the totality of the evidence before the jury was such that, even if

McKenzie’s trial counsel had objected, McKenzie did not establish Strickland

prejudice.

      AFFIRMED.




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