                                                   [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________              FILED
                                                 U.S. COURT OF APPEALS
                           No. 09-10085            ELEVENTH CIRCUIT
                                                       MAY 12, 2010
                       Non-Argument Calendar
                                                        JOHN LEY
                     ________________________
                                                         CLERK

                D. C. Docket Nos. 03-00302-CV-RLV-4,
                         97-00035-CR-RLV-4

RODNEY SMITH,



                                                   Petitioner-Appellant,

                               versus

UNITED STATES OF AMERICA,

                                                   Respondent-Appellee.
                     ________________________

                           No. 09-10086
                       Non-Argument Calendar
                     ________________________

                D. C. Docket Nos. 03-00301-CV-RLV-4,
                         97-00035-CR-RLV-4

RICKY LAMAR WADE,



                                                   Petitioner-Appellant,
                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

                             No. 09-10087
                         Non-Argument Calendar
                       ________________________

                  D. C. Docket Nos. 03-00300-CV-RLV-4,
                           97-00035-CR-RLV-4

BARBARA SUE CULBERSON,



                                                          Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

                Appeals from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                              (May 12, 2010)

Before PRYOR, MARTIN and FAY, Circuit Judges.



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PER CURIAM:

      Rodney Smith, Ricky Wade, and Barbara Culberson appeal the denial of

their motions to vacate, set aside, or correct their sentences. 28 U.S.C. § 2255. We

granted a certificate of appealability to determine “whether counsel was ineffective

for failing to object when the prosecutor, during closing arguments, referred to

what ‘did not happen’ before the grand jury.” We affirm.

      At trial, the government introduced evidence that agents of the Drug

Enforcement Agency observed Smith, Wade, and Culberson transport to

Culberson’s house a collection of substances and glassware commonly used to

manufacture methamphetamine. During a search of the house, agents discovered

sufficient methylamine to manufacture 2000 grams of methamphetamine. Agents

also discovered a handwritten note containing a recipe for manufacturing

methamphetamine.

      Federal agents testified about the discovery of the note. Agent Mel

Schabilion testified that he had discovered the note in “part of a coiled notebook

that was on top of a nightstand adjacent to the bed in the master bedroom of Miss

Culberson’s house.” Agent David Gray also testified that the note was found on a

night stand. On cross-examination, Gray explained that he had mistakenly stated

in his affidavit in support of the search warrant that the note was found in a purse.



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      During closing arguments, defense counsel for Smith and Culberson

discussed conflicting evidence about who had found the note and where the note

had been discovered. Counsel for Culberson argued that Gray had made

statements about the note in his “original testimony,” before a judge, and at trial.

The prosecutor responded that Agent Gray mistakenly had made conflicting

statements about the note and asked the jury to consider the facts in evidence:

             Contrary to what [Culberson’s counsel] said, Agent Gray did
      not testify that he said he found the notes in the purse. Agent Gray, in
      the criminal complaint, said that other agents found the note in the
      purse, and he was mistaken about that. That’s not where the note was
      found, but he did not claim that he found it. And you have not heard
      any evidence about the grand jury, where supposedly Agent Gray said
      that he found the note. You’ve heard no evidence of that. It did not
      happen.
             Agent Gray, as you know and as we admitted, made some
      mistakes in the search warrant affidavit and the criminal complaint.
      Those kind of things have to be done in a big hurry. . . . Mistakes get
      made when that happens. And it’s made Agent Gray a target here for
      unfair allegations that something was done wrong when in fact
      nothing happened.

Defense counsel did not object to the prosecutor’s argument. The district court

later instructed the jury that “[t]he lawyer’s statements are not evidence.”

      The jury found Smith guilty of four crimes: conspiracy with intent to

distribute methamphetamine, 21 U.S.C. §§ 841, 846; possession of a listed

chemical, id. § 841(c)(1); 18 U.S.C. § 2; possession of a prohibited flask, id. § 2;

21 U.S.C. § 841, 843(a)(6); and use of a communication facility to commit a drug

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offense, id. §§ 841, 843(b). Wade and Culberson were convicted of three crimes:

conspiracy with intent to distribute methamphetamine, id. §§ 841, 846; possession

of a listed chemical, id. § 841(c)(1); 18 U.S.C. § 2; and possession of a prohibited

flask, id. § 2; 21 U.S.C. § 841, 843(a)(6). The district court sentenced all three

defendants to 360 months of imprisonment. This Court affirmed their convictions

and sentences on direct appeal. United States v. Smith, 240 F.3d 927 (11th Cir.

2001).

         Smith, Wade, and Culberson moved to vacate their sentences. 28 U.S.C. §

2255. Smith, Wade, and Culberson argued that trial counsel was ineffective for

failing to object when the prosecutor allegedly vouched for the credibility of Agent

Gray. Smith, Wade, and Culberson alleged that the prosecutor stated that she

“personally did not believe Gray had intentionally lied or omitted information in

preparing the search warrant affidavit.”

         The district court denied the motions to vacate. The district court stated that

it was “somewhat troubled by the prosecutor’s reference to what ‘did not happen’

before the grand jury” but “in viewing the prosecutor’s argument as a whole and in

the context of arguments made by defense counsel,” the court concluded that the

prosecutor did not vouch for Agent Gray. The district court ruled that trial counsel

was not ineffective for failing to object to the prosecutor’s argument.



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      Smith, Wade, and Culberson argue that counsel made a professional mistake

that prejudiced the outcome of their trials, but we disagree. Counsel reasonably

could have determined that an objection was unnecessary. See Zakrzewski v.

McDonough, 455 F.3d 1254, 1259–60 (11th Cir. 2006). Counsel for Culberson

referred to Gray’s “original testimony” about discovering the note, and the

prosecutor, who interpreted counsel’s remark as a reference to testimony before a

grand jury, was entitled to respond that no testimony before the grand jury had

been mentioned during trial and the jurors could not consider facts not in evidence.

See United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009) (recognizing, as

an exception to the prohibition against vouching for a witness, that “a prosecutor

[is entitled] to respond to arguments advanced by defense counsel in his or her

statement to the jury’”). Even if we were to assume that the failure to object

constituted deficient performance, there is no evidence of prejudice. The district

court instructed the jury that the arguments of counsel were not evidence, id., and

the government presented ample proof that Smith, Wade, and Culberson possessed

illegal paraphernalia and precursor materials sufficient to manufacture a large

quantity of methamphetamine, see Sims v. Singletary, 155 F.3d 1297, 1309 (11th

Cir. 1998). The district court did not err by denying the motions to vacate.

      AFFIRMED.



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