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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13436
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 0:15-cv-61264-JIC



HARRY AUSTIN,

                                                           Petitioner-Appellant,

                                 versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

                                                       Respondents-Appellees.

                       ________________________

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

                              (April 6, 2018)

Before WILSON, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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          Petitioner Harry Austin appeals the district court’s denial of his habeas

corpus petition filed pursuant to 28 U.S.C. § 2254. On appeal, Petitioner argues

that his attorney was ineffective for failing to object on Confrontation Clause

grounds to the admission of a police officer’s testimony concerning a deceased

witness’s description and identification of Petitioner as a burglary suspect. After

careful review, we affirm.

I.        BACKGROUND

          A.     State Criminal Conviction and Post-Conviction Proceedings

          In 2007, a Florida jury found Petitioner guilty of burglary of a dwelling,

grand theft, possession of cocaine, possession of drug paraphernalia, and resisting

an officer without violence. On appeal, the Florida appellate court reversed

Petitioner’s convictions after concluding that Petitioner had been forced to

represent himself without an inquiry that satisfied Faretta v. California, 422 U.S.

806 (1975).

          Before commencement of the retrial, Petitioner’s trial counsel made an oral

motion in limine to exclude the testimony of Officer Eugene McCoy regarding the

contents of a “BOLO” 1 he issued and the statements made by an unavailable

witness regarding the description and identification of Petitioner as the burglar.

The State argued that identification “in and of itself” is not hearsay. The court


1
     “BOLO” stands for “be on the lookout.”
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determined that the existence of the BOLO, the officer’s testimony regarding his

actions in response to it, and the fact of the identification itself were admissible.

         At trial, Officer McCoy testified that he responded to a 911 call at a

residence in Fort Lauderdale around midnight on October 22, 2005. When he

arrived, he spoke with the caller, Joshua Saks,2 and obtained a description of the

suspect, which he used to place a BOLO on the police radio. Officer McCoy

observed that the rear bedroom window was broken, as well as the presence of

wires that were not attached to anything. Officer McCoy further testified that, after

Petitioner was detained, Saks identified him as the person who had been in his

home.

         Officer Shannon Dameron testified that he was in the vicinity when he was

alerted to a 911 call regarding a crime in progress. While responding to the call, he

heard a BOLO over the radio. Around the same time, he observed someone—later

identified as Petitioner—who matched the description on the BOLO. Petitioner

was running with a laptop computer in the opposite direction from where the crime

occurred. Officer Dameron attempted to make contact with him but, when

Petitioner did not stop, a foot pursuit ensued. After observing Petitioner throw the

laptop, Officer Dameron tackled him and arrested him. Upon searching Petitioner,

Officer Dameron found a crack pipe that contained cocaine residue.

2
    Saks died in a motorcycle accident prior to trial.

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      Lucien Sirois testified that when he left home on October 22, 2005, his

laptop was plugged in on his desk. When he returned home that evening, he saw

that the window in his room was broken and that his laptop computer was missing.

He later observed officers trying to take fingerprints off of his laptop.

      The jury found Petitioner guilty of burglary, grand theft, possession of

cocaine, possession of drug paraphernalia, and resisting an officer without

violence. Petitioner was sentenced to 30 years’ imprisonment.

      On appeal, Petitioner argued in relevant part that the trial court erred by

admitting Officer McCoy’s testimony about Saks’s description and identification

of Petitioner because it did not fall within the identification exception to the

hearsay rules and because Saks was not subject to cross-examination. The Florida

appellate court affirmed all of Petitioner’s convictions, except as to grand theft.

The appellate court reversed that conviction and remanded to the trial court to enter

judgment for the lesser included offense of petit theft. Petitioner’s motion for

rehearing was denied.

      Petitioner filed a motion for post-conviction relief, which he later amended,

pursuant to Florida Rule of Criminal Procedure 3.850. Of relevance to this appeal,

he argued that his trial counsel was ineffective for not objecting to the introduction

of Saks’s identification as a violation of the Confrontation Clause.




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      The State responded that Petitioner’s Confrontation Clause argument was

procedurally barred to the extent it raised trial court error. To the extent Petitioner

asserted ineffective assistance of counsel on this ground, the State argued that he

could not show that counsel was deficient but, even if he could, he had not

demonstrated prejudice. The trial court denied Petitioner’s 3.850 motion, citing

the State’s response. Petitioner filed a motion for rehearing, which was denied.

      Petitioner subsequently filed a petition for belated appeal with the Florida

appellate court. The Florida appellate court granted his motion. Petitioner argued

that his trial counsel was ineffective for failing to object on Confrontation Clause

grounds to the admission of Saks’s identification of Petitioner. The Florida

appellate court affirmed in a per curiam decision without a written opinion.

Petitioner filed a motion for rehearing, which was denied.

      B.       Federal Habeas Corpus Petition

      In June 2015, Petitioner filed the present habeas corpus petition pursuant to

28 U.S.C. § 2254. Of relevance, Petitioner asserted that his trial counsel was

ineffective for failing to object on Confrontation Clause grounds to the testimony

of Officer McCoy regarding Saks’s description and identification of Petitioner as

the burglar.

      The magistrate judge issued a Report and Recommendation (“R&R”),

recommending that the § 2254 petition be denied. In particular, the magistrate


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judge concluded that the state court’s denial of Petitioner’s ineffective assistance of

counsel claim was not contrary to, or an unreasonable application of, clearly

established federal law because Petitioner failed to demonstrate that counsel was

deficient. But to the extent there was any error, the magistrate judge concluded

that it was harmless based on the overwhelming evidence of Petitioner’s guilt.

         Over Petitioner’s objections, the district court adopted the R&R and denied

the § 2254 petition. The district court also denied a certificate of appealability

(“COA”). A member of this Court later granted Petitioner a COA on the following

issue:

         Whether the state court unreasonably applied Strickland v.
         Washington, 466 U.S. 668 (1984), when it denied [Petitioner’s] claim
         that his trial counsel rendered ineffective assistance by failing to
         object on Confrontation Clause grounds to Officer McCoy’s
         testimony concerning a deceased witness’s description and
         identification of the robber.

This Court also appointed Petitioner counsel to represent him on appeal.

II.      DISCUSSION

         A.    Standard of Review

         We review a district court’s denial of a habeas petition under § 2254

de novo. Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1245 (11th Cir.

2014). Although we review the district court’s factual findings for clear error, we

review its rulings on questions of law and mixed questions of law and fact de novo.

Id. An ineffective assistance claim “presents a mixed question of law and fact that
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we review de novo.” Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 1254, 1261

(11th Cir. 2014).

      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets

forth a standard that makes granting habeas relief difficult on a claim that the state

court has adjudicated on the merits. See White v. Woodall, 572 U.S. __, 134 S. Ct.

1697, 1702 (2014). Under AEDPA, a federal court may only grant habeas relief on

a claim if the state court’s decision “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 the State court

proceeding.” 28 U.S.C. § 2254(d).

      A state court decision is “contrary” to clearly established federal law if the

state court “arrives at a conclusion opposite to that reached by” the Supreme Court

or decides a case differently than the Supreme Court when faced with a case

involving materially indistinguishable facts. Wellington v. Moore, 314 F.3d 1256,

1260 (11th Cir. 2002). Moreover, a state court decision constitutes an

“unreasonable application” of clearly established federal law, where the court

identifies the correct governing principles, but unreasonably applies those

principles to a petitioner’s case. Id. at 1261.

      In the present case, the Florida appellate court denied Petitioner’s

ineffective-assistance claim without a written opinion. Because we interpret the


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Florida appellate court’s decision as a denial on the merits, it is entitled to

deference under § 2254(d). See Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245,

1254–55 (11th Cir. 2002) (concluding that the state court’s summary denial of a

claim is considered an adjudication on the merits for purposes of § 2254(d)(1)).

Petitioner must therefore show that there was “no reasonable basis” for the state

court’s decision. See Harrington v. Richter, 562 U.S. 86, 98 (2011) (“Where a

state court’s decision is unaccompanied by an explanation, the habeas petitioner’s

burden still must be met by showing that there is no reasonable basis for the state

court to deny relief.”).

      B.     Ineffective-Assistance-of-Counsel Claim

      To establish ineffective assistance of counsel, a § 2254 petitioner must show

that (1) counsel’s performance was deficient, falling below an objective standard

of reasonableness, and (2) the petitioner suffered prejudice as a result of the

deficient performance. Strickland v. Washington, 466 U.S. 668, 687–88 (1984).

To establish 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.” Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Harrington, 562

U.S. at 104. Because a § 2254 petitioner must establish both Strickland prongs to

prevail on an ineffective-assistance claim, a court need not consider both prongs if


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the petitioner fails to show either deficient performance or prejudice. Cox v.

McNeil, 638 F.3d 1356, 1362 (11th Cir. 2011).

      “The standards created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is doubly so.” Hittson v.

GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (quotations omitted). The

Supreme Court has stated that “[t]he question is not whether a federal court

believes the state’s determination under the Strickland standard was incorrect but

whether that determination was unreasonable—a substantially higher threshold.”

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quotations omitted). Courts

must ask whether “there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Harrington, 562 U.S. at 105.

      Here, prior to the retrial, Petitioner’s trial counsel moved in limine to

exclude Officer McCoy’s testimony regarding Saks’s identification of Petitioner as

the burglar. However, trial counsel’s objection appears to have been based on

hearsay grounds, as she did not specifically object that the testimony would violate

the Confrontation Clause. See Williams v. State, 967 So.2d 735, 747 n.11 (Fla.

2007) (explaining that a general objection to inadmissible hearsay does not

preserve a Confrontation Clause argument). But regardless, even if Petitioner’s

trial counsel rendered deficient performance, it would have been reasonable for the

state court to conclude that Petitioner was not prejudiced by trial counsel’s failure


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to object to Officer McCoy’s testimony on Confrontation Clause grounds. That is,

Petitioner cannot show a reasonable probability that, but for trial counsel’s failure

to object to Officer McCoy’s testimony on this basis, the outcome of the

proceeding would have been different.

      Even without Officer McCoy’s testimony that Saks identified Petitioner as

the burglar, the other evidence presented at trial showed that: (1) a laptop was

stolen from a home around midnight; (2) Officer Dameron observed Petitioner

running in the vicinity of the burglary with a laptop; (3) Petitioner refused Officer

Dameron’s orders to stop and a foot chase ensued; (4) while chasing Petitioner,

Officer Dameron observed Petitioner throw a laptop in the bushes; (5) a crack pipe

with cocaine residue was found in Petitioner’s possession; and (6) Lucien Sirois

testified that his bedroom window was broken and that there was no reason

Petitioner should have had his laptop. Given the other evidence of guilt, the

likelihood of a different outcome was not substantial. See Harrington, 562 U.S. at

112 (explaining that to establish prejudice “[t]he likelihood of a different result

must be substantial, not just conceivable”). Because the state court had a

reasonable basis to conclude that Petitioner had not shown prejudice, the state




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court’s rejection of Petitioner’s ineffective assistance of counsel claim was not

contrary to, or an unreasonable application, of Strickland. 3

       For the above reasons, the district court’s denial of Petitioner’s § 2254

petition is AFFIRMED.




3
  Petitioner also argues that the district court erred by denying him an evidentiary hearing and
that his counsel was ineffective due to a conflict of interest and for failing to object to Saks’s
identification on hearsay grounds. Because those issues are outside the scope of the COA, we do
not address those issues in this appeal. See Murray v. United States, 145 F.3d 1249, 1251 (11th
Cir. 1998) (holding that appellate review is limited to issues specified in the COA).
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