                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 07-13113                   March 28, 2008
                         Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                       ________________________

                 D. C. Docket No. 03-02699-CV-T-23MSS

MICHAEL DESHON BALL,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

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

                             (March 28, 2008)

Before TJOFLAT, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Michael Deshon Ball, a federal prisoner proceeding pro se, appeals the

denial of his 28 U.S.C. § 2255 motion to vacate his sentence. After review, we

affirm.

                                I. BACKGROUND

A.    Ball’s Trial and Direct Appeal

      Ball was charged with two counts of armed bank robbery, in violation of 18

U.S.C. § 2113(a) and (d) (Counts 1 and 2), brandishing a firearm during the second

bank robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 3), and being a

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 4).

Ball pled not guilty.

      At trial, the government presented evidence of two bank robberies. The first

bank robbery occurred on May 10, 2001 at Chemical & Industrial Federal Credit

Union (“Chemical”). A Chemical bank teller, Elizabeth Styron, testified that a

dark-complected black man entered, grabbed her hand and demanded that she give

him all her money. The robber had a small silver revolver with a black handle.

Styron gave the robber $10,784, and he left. Styron immediately called 911.

Styron gave police a description of the robber and assisted in developing a

composite sketch, which generally matched Ball.

      The second bank robbery occurred on June 1, 2001 at Colonial Bank. The



                                          2
robber pointed a revolver at the teller and demanded money. The teller gave the

robber $2,271 with a dye pack surrounded by “bait bills.” Other bank employees

saw the robber get in a car and called out the license plate number. Bank

employees gave the police the license plate number and a description of the robber

and the car.

      Shortly thereafter, police spotted a car matching the description of the bank

robber’s car. This car belonged to Ball, who was arrested. A search of Ball’s car

revealed $2,271, the “bait bills,” and a chrome-plated revolver. Police also found

stubs for $8,000 in money orders issued on May 11, 2001, the day after the

Chemical bank robbery, and on May 22, 2001. Ball was taken to Colonial Bank,

where a bank employee identified him as the bank robber.

      At trial, Styron testified that Ball was the man who robbed Chemical. Ball’s

trial counsel did not file a pretrial motion to suppress Styron’s in-court

identification or object to her in-court identification during trial. Instead, Ball’s

trial counsel cross-examined Styron about her earlier inability to identify Ball

during a photo lineup prior to trial and about the police officers’ suggestive

procedures during that photo lineup. Ball’s counsel also got Styron to admit that

photographs taken by the bank’s surveillance camera during the robbery showed a

man who appeared to be lighter complected. During closing arguments, Ball’s



                                            3
counsel argued that Styron’s in-court identification of Ball was a result of the

suggestive photo lineup and was unreliable.

       The jury found Ball guilty on all counts. The district court imposed

concurrent 109-month sentences on Counts 1, 2 and 4 and a consecutive 84-month

sentence on Count 3, the brandishing-a-firearm offense.

       In his direct appeal, Ball argued, among other things, that the admission of

Styron’s in-court identification violated due process.1 Reviewing for plain error,

this Court concluded that there was no reversible error. United States v. Ball, No.

02-10453, slip op. at 13-14 (11th Cir. Oct. 30, 2002). Specifically, the Court

concluded that, even assuming there was plain error that affected Ball’s substantial

rights, the admission of this testimony under the circumstances did not seriously

affect the fairness, integrity and public reputation of the judicial proceeding. Id. at

13. The Court explained that this was so because Ball’s counsel had chosen a trial

strategy of using the weaknesses in Styron’s in-court identification to impeach her,

as follows:

              At trial, rather than object to the admission of this testimony,
       Ball’s counsel opted to cross-examine Styron and draw out her earlier
       inability to identify Ball during the photo line-up and her subsequent
       certainty only after suggestive identification procedures [were] used.
       Indeed, discrediting Styron’s identification appeared to be defense


       1
       Shortly after Ball filed his notice of direct criminal appeal, his trial counsel died in an
automobile accident.

                                                  4
       counsel’s entire strategy with regard to the Chemical robbery count.
       Defense counsel reemphasized this strategy during closing argument,
       when he challenged Styron’s credibility and reliability as a witness,
       based on her testimony that she had been unable to identify him in the
       photographic line-up.
              Because Ball chose to develop Styron’s testimony highlighting
       the unreliability of her identification and then to capitalize on it in
       closing argument, any error did not seriously affect the fairness,
       integrity and public reputation of the judicial proceedings. We
       conclude this is particularly so because of the other evidence linking
       Ball to the Chemical robbery, including the composite sketch, the
       positive identification of his firearm later found in his car, and the
       $8,000 in money order stubs also found in his car.

Id. at 13-14 (citation omitted).

B.     Ball’s § 2255 Motion

       On December 24, 2003, Ball, pro se, filed this § 2255 motion, claiming, inter

alia, that his trial counsel was ineffective by failing (1) to call available alibi

witnesses to testify, and (2) to move to suppress Styron’s in-court identification.

The district court denied Ball’s § 2255 motion, finding that the decisions of Ball’s

trial counsel had been reasonable strategic choices. Ball filed a motion for

reconsideration, which the district court denied.

       Ball filed this appeal. We granted a certificate of appealability as to:

whether the district court erred in finding that Ball’s trial counsel was not

ineffective for failing: (1) to call alibi witnesses to testify with regard to the

Chemical bank robbery, and (2) to move to suppress Styron’s in-court



                                             5
identification of Ball as the Chemical bank robber.

                                 II. DISCUSSION

A.    Ineffective Assistance of Counsel

      To prevail on a claim of ineffective assistance, a petitioner must show that

(1) counsel’s performance was deficient, meaning that it fell below an objective

standard of reasonableness; and (2) the deficient performance prejudiced the

defendant. Chandler v. United States, 218 F.3d 1305, 1312-13 (11th Cir. 2000) (en

banc). In deciding whether counsel’s performance was deficient, judicial scrutiny

is “‘highly deferential’” and requires us to “‘indulge [the] strong presumption that

counsel’s performance was reasonable and that counsel ‘made all significant

decisions in the exercise of reasonable professional judgment.’” Id. at 1314

(quoting Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 2065-

66 (1984)).

      Accordingly, we will not “second-guess counsel’s strategy.” Id. at 1314

n.14. Strategic choices, even those “made after less than complete investigation,”

are evaluated for their reasonableness and “counsel’s reliance on particular lines of

defense to the exclusion of others–whether or not he investigated those other

defenses–is a matter of strategy and is not ineffective unless the petitioner can

prove the chosen course, in itself, was unreasonable.” Id. at 1318 (quoting



                                           6
Strickland, 446 U.S. at 690-91, 104 S. Ct. at 2066).

       “[W]e are not interested in grading lawyers’ performances; we are interested

in whether the adversarial process at trial . . . worked adequately.” Rogers v. Zant,

13 F.3d 384, 386 (11th Cir. 1994) (quotation marks omitted). The petitioner’s

burden is a heavy one. To be unreasonable, the performance must be such that

“no competent counsel would have taken the action that [the petitioner’s] counsel

did take.” Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001) (emphasis

omitted). In other words, “[e]ven if many reasonable lawyers would not have done

as defense counsel did at trial, no relief can be granted on ineffectiveness grounds

unless it is shown that no reasonable lawyer, in the circumstances, would have

done so.” Rogers, 13 F.3d at 386.2

B.     Alibi Witnesses

       Ball argues that his trial counsel should have called Ball’s wife, brothers and

cousin, who told Ball’s trial counsel that Ball had been shopping with them at the

time of the Chemical robbery or at a minimum conducted follow-up interviews of



       2
          When reviewing the district court’s denial of a § 2255 motion, we review factual
findings for clear error and legal conclusions de novo. Lynn v. United States, 365 F.3d 1225,
1232 (11th Cir. 2004). “A claim of ineffective assistance of counsel is a mixed question of law
and fact that we review de novo.” Gordon v. United States,___ F.3d ___, 2008 WL 614189, at *4
(11th Cir. Mar. 7, 2008).
         A district court’s denial of an evidentiary hearing is reviewed for an abuse of discretion.
Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002). We reject Ball’s claim that the
district court was required to conduct an evidentiary hearing.

                                                 7
those witnesses.3

       Trial counsel’s decisions with regard to Ball’s alibi witnesses were

quintessential trial strategy. See Chandler, 218 F.3d at 1314 n.14 (describing the

decision to call some witnesses and not others as “the epitome of a strategic

decision” (quotation marks omitted)); Blanco v. Singletary, 943 F.2d 1477, 1495

(11th Cir. 1991) (“The decision as to which witnesses to call is an aspect of trial

tactics that is normally entrusted to counsel.”). Ball has failed to show that his

counsel’s strategic decisions were unreasonable.

       The record shows that Ball’s counsel spoke with the alibi witnesses and

knew what they would have said on the stand. Nothing in these witnesses’

affidavits suggests that they told trial counsel something that would have indicated

to any reasonable attorney that further interviews were required.4



       3
         Ball filed affidavits of: (1) his wife, one brother and his cousin attesting that they were
shopping with Ball from 10:00 a.m. to 4:00 p.m. on May 10, 2001; and (2) his mother stating
that she had spoken with her son on the telephone at 11:15 a.m. on May 10, 2001 and that Ball
had told her he was shopping with his wife, brothers and cousin at the mall. All affiants had
discussed this information with Ball’s counsel, but they were not thereafter contacted by him.
Ball’s wife averred that when Ball’s counsel failed to follow up with them, Ball’s wife
confronted him about it. Ball’s trial counsel responded that he “knew what he was doing and
had the case won.”
       4
         We do not evaluate decisions not to investigate further in hindsight. See Rogers, 13
F.3d at 388 (“Once we conclude that declining to investigate further was a reasonable act, we do
not look to see what a further investigation would have produced.”). However, we note that Ball
does not claim that his counsel would have uncovered new information if he had conducted
follow-up interviews.


                                                  8
      Furthermore, as the district court noted, Ball’s alibi witnesses were all close

family members with a strong motive to fabricate an alibi defense for him. As

such, their testimony would not have been particularly compelling and would have

been subjected to vigorous impeachment. If trial counsel had called these alibi

witnesses and the jury had disbelieved them, the jury also could have inferred that

Ball was in fact the Chemical bank robber. Thus, by placing Ball’s family

members on the stand, trial counsel ran the risk of undermining the effectiveness of

his impeachment of Styron’s identification. Under the circumstances, we cannot

say that no competent counsel would have made the strategic choices that Ball’s

trial counsel made with regard to these alibi witnesses.

C.    Styron’s In-court Identification

      As this Court’s opinion noted in Ball’s direct appeal, trial counsel used

Styron’s inability to identify Ball in the photo lineup and the police’s suggestive

procedures to impeach her credibility rather than to try and suppress her in-court

testimony. Because this strategic decision is presumed to be reasonable, Ball was

required to show that no competent counsel would have made that decision. See

Grayson, 257 F.3d at 1216; Chandler, 218 F.3d at 1315. The test is not “what the

best lawyers would have done,” or “what most good lawyers would have done,”

but “whether some reasonable lawyer at the trial could have acted, in the



                                           9
circumstances, as defense counsel acted at trial.” Waters v. Thomas, 46 F.3d 1506,

1512 (11th Cir. 1995) (en banc) (quoting White v. Singletary, 972 F.2d 1218, 1220

(11th Cir. 1992)).

      As the Supreme Court has explained, “[t]here are countless ways to provide

effective assistance in any given case.” Strickland, 466 U.S. at 689, 104 S. Ct. at

2065. In determining whether counsel’s conduct falls “outside the wide range of

professionally competent assistance,” we are to “keep in mind that counsel’s

function, as elaborated in prevailing professional norms, is to make the adversarial

testing process work in a particular case.” Id. at 690, 104 S. Ct. at 2066. “If a

defense lawyer pursued course A, it is immaterial that some other reasonable

courses of defense . . . existed . . . . The lawyer’s strategy was course A. And, our

inquiry is limited to whether this strategy, that is, course A, might have been a

reasonable one.” Chandler, 218 F.3d at 1315 n.16.

      An unduly suggestive photographic lineup does not necessarily require the

suppression of an in-court identification. See, e.g., Manson v. Brathwaite, 432

U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977) (rejecting a per se rule requiring

exclusion of an identification when it was obtained following unduly suggestive

procedures). Instead, whether an in-court identification tainted by suggestive

police procedures should be suppressed turns on its reliability as assessed by a



                                          10
variety of factors, called the Biggers factors. See Neil v. Biggers, 409 U.S. 188,

199-200, 93 S. Ct. 375, 382 (1972); Code v. Montgomery, 725 F.2d 1316, 1319-20

(11th Cir. 1984). These factors include the witness’s opportunity to view the

criminal, the degree of attention, the accuracy of the witness’s prior description of

the criminal, the level of the witness’s certainty and the length of time between the

crime and the identification. Biggers, 409 U.S. at 199-200, 93 S. Ct. at 382. The

in-court identification will be suppressed only if, after considering these factors,

there is a “very substantial likelihood of irreparable misidentification.” See

Manson, 432 U.S. at 116, 97 S. Ct. at 2254 (explaining that short of a “very

substantial likelihood of irreparable misidentification . . . . such evidence is for the

jury to weigh”) (quotation marks omitted).

      Some of the Biggers factors weighed in favor of admission in Styron’s case

(such as the fact that Styron had a good opportunity to view the bank robber and

gave an accurate description of Ball right after the robbery, as reflected in the

composite sketch), and we cannot say suppression was a forgone conclusion.

Furthermore, the government did not rely solely upon Styron’s identification of

Ball, but presented other evidence linking Ball to the Chemical bank robbery,

including the composite sketch (which was not tainted by suggestive procedures),

the positive identification of the firearm found in Ball’s car, and Ball’s $8,000 in



                                           11
money order stubs.

      Under the circumstances, competent counsel could have concluded that,

rather than telegraph his impeachment strategy as to Styron in a possibly

unsuccessful motion to suppress, he would save it in hopes that his cross-

examination would be more effective. Thus, we cannot say no reasonable attorney

would have opted to risk Styron identifying Ball in court and then used the

damaging information challenging the reliability of her identification to discredit

her. We certainly cannot say that trial counsel’s choice in Ball’s case caused the

adversarial testing process not to work, which is our ultimate concern.

      Because Ball has not carried his burden to show that trial counsel’s decisions

not to pursue an alibi defense and not to move to suppress Styron’s in-court

identification were objectively unreasonable, the district court did not err in

denying Ball’s § 2255 motion.

      AFFIRMED.




                                          12
