                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                  MAR 29, 2007
                                 No. 06-15758                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                      D. C. Docket No. 05-02723-CV-TWT-1

MIGUEL ANGEL DURAN,

                                                               Petitioner-Appellant,

                                       versus

WARDEN VICTOR WALKER,

                                                              Respondent-Appellee.

                           ________________________

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

                                 (March 29, 2007)

Before BIRCH, WILSON and FAY, Circuit Judges.

PER CURIAM:

      Miguel Angel Duran, a Georgia prisoner proceeding pro se, appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. Duran raises
two issues on appeal: (1) whether there was sufficient evidence to support his

convictions; and (2) whether his trial counsel was ineffective for failing to call an

expert witness. For the reasons set forth more fully below, we affirm.

                         I. Procedural and Factual History

      Duran, who is serving a 12-year sentence for aggravated sexual battery and

rape, filed a § 2254 petition in the district court alleging, among other things, that

the evidence was insufficient to support his convictions and that he received

ineffective assistance of his trial counsel. As to his insufficiency of the evidence

claim, Duran alleged that (1) despite the victim’s testimony that she had no bruises

on her body prior to the rape, two other witnesses testified that the victim did have

bruises on her body prior to the rape; (2) while the victim testified that she

screamed loudly during the rape, two witnesses that lived in the house where the

rape occurred testified that they did not hear the victim scream; and (3) the state’s

expert witness testified that there was no evidence of semen on the victim’s body

and that the bruises on her body could not be directly attributed to Duran.

Accordingly, Duran claimed that the jury’s verdict was inconsistent with the

evidence presented at trial. Concerning his ineffective-assistance-of-counsel claim,

he asserted that his trial counsel was ineffective for failing to call an expert

toxicologist as a witness in support of his defense that he was intoxicated from



                                            2
paint fumes at the time he provided statements to police. Duran maintained that,

had his counsel called an expert toxicologist, there was a reasonable probability

that the court would have suppressed his statements to police.

      Prior to trial, the state trial court held a suppression hearing, pursuant to

Jackson v. Denno1, in order to determine the admissibility of Duran’s statements

that he made during an interview with police. At the hearing, Eric Edkin, a

detective for the Gwinnett County Police Department, testified that he interviewed

Duran and read him Miranda2 warnings at the beginning of the interview.

Detective Edkin stated that Duran did not appear to be under the influence of

alcohol or narcotics during the interview, and that Duran responded to Edkin’s

questions coherently.

      Duran also testified at the suppression hearing. He stated that he worked as

a painter and had been painting with oil-based paints for 12 or 13 hours on the day

of his interview with police. He explained that, when he arrived home from

painting, there were police officers at his house. Duran testified that he told the

officers that he had been painting all day and “was feeling a little crazy.” He stated

that he was confused during the interview because of his exposure to the paint



      1
          Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
      2
          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                                3
chemicals and the police officer’s poor Spanish speaking skills.

      Also during the suppression hearing, the state played a videotape of the

officers’ interview of Duran. The trial court determined that, based upon the

videotape and the testimony, Duran knew and understood his rights, and provided

voluntary statements to police. Thus, the court denied the motion to suppress and

ruled that Duran’s statements were admissible at trial.

      At trial, the victim testified that she rented a room in Duran’s house. The

victim stated that, on the night of the rape, Duran had been out drinking and he

came to the victim’s room when he came home. She further testified that Duran

put his hand over her mouth, forced her legs open, inserted his penis into her

vagina, placed his mouth on her vagina, and penetrated her vagina with his fingers,

all without her consent. She explained that she resisted the encounter and

screamed for help. On cross-examination, the victim testified that there were four

other people in the house during the incident and that they were downstairs from

her room. At the end of the cross-examination, Duran’s counsel had the following

exchange with the victim:

      Duran’s counsel: But, in fact, [Duran] didn’t have sex with you; isn’t
      that correct?
      Victim: Yes, yes. He had - -
      Duran’s counsel: No further questions.
On re-direct, the victim stated that she did not have any bruises on her body at the



                                          4
time of the incident.

      Holly West, a medical examiner for the Gwinnett Sexual Assault Center,

testified that she performed a sexual assault examination on the victim. West

identified pictures that she took of the victim during the examination, which

showed bruises on the victim’s chin and neck. West stated that she did not find

any semen on the victim. West also testified that the victim had injuries to her

vagina. On cross-examination, West stated that she could not ascertain the identity

of the object that injured the victim.

      Eva Avila testified as a witness for Duran. Avila stated that she lived in

Duran’s house at the time of the incident. Avila explained that she saw the victim

the morning after the incident and she saw that the victim was crying and had

bruises on her body. Avila testified that she was downstairs during the night of the

incident and did not hear any screams.

      Azala Alejandro, another resident living at Duran’s house during the

incident, also testified for the defense. Duran’s attorney asked Alejandro whether

she saw the victim “prior to the alleged rape, and did she have any marks or bruises

on her body.” Alejandro answered “yes.” Alejandro also testified that she did not

hear any screams on the night of the incident. Alejandro stated that she found the

victim crying in her room after the incident occurred and that the victim told



                                          5
Alejandro that she hoped “this never happens to your children, what he did to me.”

      Duran testified in his own defense. He stated that he never had sex with the

victim on the date of the alleged rape, but that he only had kissed and touched her.

He testified that the victim never screamed during their encounter. Duran also

stated that, after the encounter with the victim, he went to work painting all day.

He explained that, when he arrived home from work, police officers were at his

house and he was confused about why the officers were there. On cross-

examination, the state played the videotape of Duran’s interview with the officers,

and the court allowed Duran, over objection from the state, to explain his actions

during the interview. Duran stated that he “had been working with paint with

chemicals, thinner, for 12 to 13 hours. That means that I was not feeling very well

when they were interviewing me at that time.”

      The jury found Duran guilty of rape and aggravated sexual battery. The

court sentenced Duran to 12 years’ imprisonment, followed by 8 years’ probation.

Duran moved for a new trial, but the court denied his motion. Duran then appealed

his convictions and the denial of his motion for a new trial to the Georgia Court of

Appeals.

      On direct appeal, Duran argued, among other things, that the evidence was

insufficient to support his conviction and that his counsel was ineffective for



                                           6
failing to call an expert to testify concerning the effects of paint fumes on his

mental state during the police interview. See Duran v. State, 619 S.E.2d 388, 390-

91 (Ga. Ct. App. 2005). The court made the following findings of fact:

              Viewed in the light most favorable to the verdict, the evidence
       shows that on July 26, 2000 the victim was living in a rented room in
       Duran’s house. That morning, Duran returned to the residence after a
       night of drinking and entered the victim’s bedroom with the intent of
       having sex with her. He started touching her, forcing her legs apart
       and holding her face so she would not yell, and placed his mouth upon
       and inserted his penis and finger into her vagina. She resisted and
       began to scream. After the encounter, she left the residence in tears.
              On the night of his arrest, Duran was taken to the Gwinnett
       County Police Department for a videotaped interrogation. The
       questions were asked and answered in both English and Spanish,
       depending upon Duran’s need for translation. At the outset of the
       interrogation, he was instructed of his Miranda rights in Spanish, after
       which he agreed to answer questions without the presence of counsel.

Id. at 390.

       As to Duran’s sufficiency of the evidence argument, the court cited to

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and

found that the evidence was sufficient for a rational trier of fact to find Duran

guilty of rape and aggravated sexual battery beyond a reasonable doubt because

(1) the victim’s testimony establishing forcible penetration was alone sufficient to

sustain the conviction; (2) the medical examiner’s testimony indicated that the

victim’s wounds were consistent with her account of sexual assault and indicated

forced penetration; and (3) the jury was well within its province to disbelieve the

                                           7
testimony of Duran and the other witnesses. Duran, 619 S.E.2d at 390-91.

      With regard to Duran’s ineffective-assistance-of-counsel argument, the court

found that there was sufficient evidence to support the trial court’s finding that

Duran’s custodial statements were voluntarily given. Id. The court specifically

determined that (1) Duran’s Miranda warnings were proper; (2) Duran indicated

that he understood his rights during the interview and indicated that he was willing

to cooperate without the presence of counsel; and (3) the police officer testified at

the suppression hearing that Duran responded to the questions coherently, he did

not appear to be under the influence of alcohol or drugs, and that his statements

were voluntarily given. Id. The court thus concluded that, because Duran’s

statements were voluntary, he could not show that he was “prejudiced by his

counsel’s failure to call an expert to provide cumulative evidence about the alleged

effects of paint fumes . . . . Such testimony would not have changed the fact that

the trial court properly admitted the custodial statements . . . .” Id. In so finding,

the court cited Johnson v. State, 570 S.E.2d 344, 345 (Ga. Ct. App. 2002), which in

turn cited the ineffective-assistance-of-counsel standard set forth in Strickland.

Duran, 619 S.E.2d at 391-92.

      Based upon the above-detailed record, the magistrate judge recommended

denying Duran’s § 2254 petition. Concerning Duran’s sufficiency of the evidence



                                            8
claim, the magistrate found that the state court cited and relied upon the proper

controlling Supreme Court authority, Jackson v. Virginia, in concluding that the

evidence was sufficient to support Duran’s convictions. The magistrate also found

that Duran had not provided clear and convincing evidence to dispute the state

court’s factual findings, and, thus concluded that the state court’s decision was not

based on an unreasonable determination of the facts in light of the evidence

presented.

      As to Duran’s claim of ineffective assistance of trial counsel, the magistrate

determined that, while the state court did not explicitly cite Strickland, it utilized

the proper standard from Strickland when it found that Duran was not prejudiced

by his counsel’s failure to call an expert witness. The magistrate found that Duran

had not offered evidence disputing the state court’s factual findings that his

statements were voluntary and that he was not prejudiced by counsel’s failure to

call an expert witness. The magistrate also noted that Duran could not show that

he was prejudiced because he did not point to any evidence that established that he

was intoxicated at the time he gave his custodial statements and he failed to

sufficiently develop his argument.

      Duran objected to the magistrate’s report and recommendation, reiterating

the arguments he presented in his § 2254 petition. Over Duran’s objection, the



                                            9
district court adopted the magistrate’s report and recommendation and denied

Duran’s § 2254 petition. Duran filed a notice of appeal, which the district court

construed as an application for a certificate of appealability (“COA”). The district

court granted Duran a COA on the following two issues: (1) whether there was

sufficient evidence to support Duran’s convictions; and (2) whether Duran

received ineffective assistance of his trial counsel.

                                     II. Analysis

      We review a district court’s grant or denial of a § 2254 petition de novo,

while the court’s factual findings are reviewed for clear error. See Sims v.

Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). Mixed questions of law and

fact, including ineffective assistance of counsel claims, are reviewed de novo. Id.

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.

L. No. 104-32, 110 Stat. 1214 (1996), governs this appeal because Duran filed his

§2254 petition after the effective date of the AEDPA. As amended by the AEDPA,

28 U.S.C. § 2254(d) forbids federal courts from granting habeas relief on claims

that were previously adjudicated in state court, unless the adjudication was

(1) “contrary to, or involved an unreasonable application of, clearly established

federal law, as determined by the United States Supreme Court,” or (2) “based on

an unreasonable determination of the facts in light of the evidence presented in the



                                           10
State court proceeding.” 28 U.S.C. § 2254(d). A state court decision is “contrary

to” clearly established federal law if either “(1) the state court applied a rule that

contradicts the governing law set forth by Supreme Court case law, or (2) when

faced with materially indistinguishable facts, the state court arrived at a result

different from that reached in a Supreme Court case.” Putman v. Head, 268 F.3d

1223, 1241 (11th Cir. 2001). An “unreasonable application” of clearly established

federal law may occur if the state court “identifies the correct legal rule from

Supreme Court case law but unreasonably applies that rule to the facts of the

petitioner’s case.” Id. “An unreasonable application may also occur if a state court

unreasonably extends, or unreasonably declines to extend, a legal principle from

Supreme Court case law to a new context.” Id.

      Moreover, a state court’s factual findings are presumed correct, and the

petitioner can rebut them only by clear and convincing evidence. See 28 U.S.C.

§ 2254(e)(1). As such, for a state court’s adjudication to result in an unreasonable

determination of the facts in light of the evidence presented, “[n]ot only must the

factual determination have been unreasonable, but the state court’s factual findings

must be shown unreasonable by clear and convincing evidence.” Callahan v.

Campbell, 427 F.3d 897, 926 (11th Cir. 2005), cert. denied, 127 S.Ct. 427 (2006).

                           A. Sufficiency of the Evidence



                                            11
      Duran argues on appeal that the evidence produced at his trial was

insufficient to support his convictions and that the jury’s verdict was inconsistent

with the evidence presented at trial. Duran points to four specific facts that he

claims do not support his convictions: (1) the victim testified that she did not have

any bruises on her body prior to the rape, but Avila and Alejandro testified that

they each saw bruises on the victim’s body before the rape occurred; (2) the

victim’s testimony, that she screamed loudly during the rape, was contradicted by

Avila’s and Alejandro’s testimonies that they were in the house at the time of the

rape and did not hear any screams; (3) there was no physical evidence to connect

him with the rape, especially in the light of West’s testimony that there was no

semen found during the sexual assault examination of the victim and the wounds

on the victim could not be directly linked to Duran; and (4) when his counsel asked

the victim whether she had sex with Duran, the victim answered “no.” Duran also

broadly states that the state appellate court’s decision was contrary to, or involved

an unreasonable application of, Jackson v. Virginia, and that the state court’s

determination of the facts in light of the evidence presented was objectively

unreasonable. Accordingly, Duran states that he is entitled to federal habeas relief.

      In Jackson v. Virginia, the Supreme Court held that, when reviewing the

sufficiency of the evidence, the “critical inquiry” is “whether, after viewing the



                                          12
evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89 (emphasis in original). The

Supreme Court noted that it is the duty of the trier of fact “to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts,” and a reviewing court may not substitute its judgment as to

whether it believes the evidence to be sufficient to sustain a conviction. Id.

      In Georgia, “[a] person commits the offense of rape when he has carnal

knowledge of . . . [a] female forcibly and against her will.” O.C.G.A. § 16-6-

1(a)(1). “Carnal knowledge in rape occurs when there is any penetration of the

female sex organ by the male sex organ.” O.C.G.A. § 16-6-1(a). “A person

commits the offense of aggravated sexual battery when he or she intentionally

penetrates with a foreign object the sexual organ or anus of another person without

the consent of that person.” O.C.G.A. § 16-6-22.2(b).

      Here, to the extent that Duran argues that the sufficiency-of-the-evidence

standard used by the Georgia Court of Appeals was contrary to, or an unreasonable

application of, clearly established federal law, his argument is without merit. In

reviewing Duran’s sufficiency claim, the state appellate court relied upon the

standard set forth in Jackson, and this standard is the proper one for reviewing



                                           13
appellate challenges to the sufficiency of the evidence. See Duran, 619 S.E.2d at

390; see also Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Moreover, the

state court properly found, as discussed in more detail below, that the evidence

produced at Duran’s trial was sufficient for a rational trier of fact to find Duran

guilty beyond a reasonable doubt. See Duran, 619 S.E.2d at 390-91. Thus, Duran

is ineligible for habeas relief under the first prong of § 2254(d).

      The crux of Duran’s argument centers on the second prong of § 2254(d): that

the state court’s decision 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). It is well established, however, that a federal court will presume that

the state court’s factual determinations were correct, and a petitioner may rebut

that presumption only with clear and convincing evidence. See 28 U.S.C.

§ 2254(e)(1). Here, the state court determined that (1) Duran entered the victim’s

room with the intent of having sex with her; (2) Duran touched the victim, forced

her legs apart, and held her face so that she would not yell; and (3) Duran inserted

his finger and penis into the victim’s vagina while the victim resisted. Duran, 619

S.E.2d at 390. As the state appellate court recognized, the victim’s testimony as to

forcible penetration was alone sufficient to support the conviction, and Duran’s

arguments concerning the discrepancies between the victim’s testimony and the



                                           14
witnesses’s testimonies do not amount to clear and convincing evidence sufficient

to overcome the presumption of correctness of the state court’s factual findings. It

was within the province of the jury to weigh the credibility of all the witnesses

testimony and to determine that the victim’s testimony was credible. See Jackson,

443 U.S. at 318-19, 99 S.Ct. at 2788-89 (explaining that it is the duty of the trier of

fact “to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts”). Thus, any discrepancies

between the victim’s testimony and the testimonies of Avila and Alejandro

concerning the victim’s bruising or screaming were properly resolved by the jury

as the trier of fact and, further, the state appellate court correctly deferred to the

jury’s credibility determinations.

       Similarly, Duran’s argument that there was no physical evidence to link him

to the offense is also without merit. Although West could not directly link Duran

to the crime, she testified at trial that the victim had bruises and wounds that were

consistent with rape. See Duran, 619 S.E.2d at 391. In light of that evidence, and

the victim’s own testimony, there was sufficient evidence to support the jury’s

verdict, even though the medical expert testified that she did not find semen on the

victim and could not link the victim’s wounds directly to Duran.

       Lastly, as to Duran’s assertion that the victim actually testified that Duran



                                            15
did not have sex with her, Duran’s argument does not amount to clear and

convincing evidence to rebut the presumption that the state appellate court

correctly determined that Duran did forcibly penetrate the victim. In support of his

argument, Duran points to the transcript of his counsel’s cross-examination of the

victim:

      Duran’s counsel: But, in fact, [Duran] didn’t have sex with you; isn’t
      that correct?
      Victim: Yes, yes. He had - -
      Duran’s counsel: No further questions.

This exchange between Duran’s counsel and the victim is not clear and convincing

evidence that Duran did not have sex with the victim because Duran’s counsel

never allowed the victim to finish her statement. In light of the fact that the victim

testified in Spanish and had her testimony interpreted, the transcript is not clear as

to whether the victim was answering Duran’s counsel’s question in the affirmative

or was acknowledging counsel’s question before she further explained her answer.

As such, it appears that Duran is taking the victim’s testimony out of context in an

effort to support his position that no rape occurred. Such deceptive reliance on the

victim’s trial testimony, however, is not sufficient to rebut the state court’s factual

finding that a rape actually occurred.



      Accordingly, the state appellate court’s finding that there was sufficient

                                           16
evidence to support Duran’s convictions was not based on an unreasonable

determination of the facts in light of the evidence presented at trial.

                        B. Ineffective Assistance of Counsel

      Duran argues that his trial counsel was ineffective for failing to call an

expert witness at trial to testify regarding the effects that the paint fumes had on

Duran’s mental state at the time he gave statements to the police. Duran contends

that, had an expert testified, there was a reasonable probability that his statements

to police would have been suppressed or that the expert’s testimony would have

bolstered his involuntary intoxication defense. He further asserts that the expert’s

testimony would have made the jury more inclined to disregard his statements to

police because juries tend to always believe experts over the testimony of

defendants. Duran also broadly argues that the state court’s decision was contrary

to, or an unreasonable application of, Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984), and was an unreasonable determination of the

facts in light of the evidence presented at trial. Accordingly, he argues that this

Court should grant him federal habeas relief.

      The Sixth Amendment provides that a criminal defendant shall have the

right to “the assistance of counsel for his defense.” U.S. Const. amend. VI. When

a convicted defendant claims that his counsel’s assistance was ineffective, the



                                           17
defendant must show that (1) counsel’s performance was deficient, and (2) the

deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.

Ct. at 2064. “For performance to be deficient, it must be established that, in light

of all the circumstances, counsel’s performance was outside the wide range of

professional competence.” Putman, 268 F.3d at 1243. Reviewing courts must be

highly deferential in reviewing a counsel’s performance, and must utilize the

strong presumption that counsel’s performance was reasonable. Chandler v.

United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). “[B]ecause

counsel’s conduct is presumed reasonable, for a petitioner to show that the conduct

was unreasonable, a petitioner must establish that no competent counsel would

have taken the action that his counsel did take.” Id. at 1315. Under the prejudice

prong, the 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.” Strickland, 466 U.S. at 694, 104 S. Ct. 2068.

      Here, the state court’s decision was not contrary to, or an unreasonable

application of, clearly established law. First, while the state court did not expressly

cite Strickland, it nonetheless cited Johnson v. State, 570 S.E.2d 344, 345 (Ga. Ct.

App. 2002), which in turn cited the ineffective-assistance-of-counsel standard set

forth in Strickland. See Duran, 619 S.E.2d at 391-92. Moreover, the state court



                                          18
analyzed Duran’s claim in order to determine whether he suffered any prejudice as

a result of his counsel’s actions. Id. at 391. Thus, the state court correctly

identified Strickland as the controlling law and properly applied it to Duran’s

ineffective-assistance-of-counsel claim. See Robinson v. Moore, 300 F.3d 1320,

1343 (11th Cir. 2002) (holding that, “[i]t is well established that the Supreme

Court’s decision in Strickland is the controlling legal authority to be applied to

ineffective assistance of counsel claims”) (quotation omitted). Further, Duran does

not argue, and the record does not suggest, that the facts of this case are materially

indistinguishable from the facts in Strickland. See Putman, 268 F.3d at 1241.

      To the extent that Duran argues on appeal that the state court’s decision

“was based on an unreasonable determination of the facts in light of the evidence

presented,” he has not met his burden of proving by clear and convincing evidence

that the state court’s factual findings were incorrect. See 28 U.S.C. § 2254(d)(2),

(e)(1). At the suppression hearing, Detective Edkin testified that Duran did not

appear to be under the influence of alcohol or narcotics during the interview, and

he responded to Edkin’s questions coherently. The trial court also viewed a

videotape of Duran’s interview. Thus, there was sufficient evidence to support the

trial court’s conclusion that Duran’s statements were knowing and voluntary, and

Duran offered no evidence to show that he actually was intoxicated or that his



                                           19
statements were otherwise involuntary. Moreover, in light of the fact that the trial

court determined at the pre-trial suppression hearing that Duran’s custodial

statements were voluntary, it would have served no purpose for counsel to call an

expert witness at trial in an effort to show that Duran’s mental state at the time of

the police interview rendered his statements involuntary. Therefore, counsel had

no grounds upon which to challenge the voluntariness of his statements, and

counsel cannot be deemed ineffective for failing to raise an issue that has no merit.

Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990).

      Furthermore, other than his speculative assertion that the trial court would

have suppressed his statements had his counsel called an expert witness to testify

about the effects of inhaling paint fumes, Duran offers no evidence to show that an

expert would have caused the trial court to suppress his statements, especially since

the trial court already had found during the pre-trial suppression hearing that his

statement was voluntary. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064

(explaining that, to establish ineffective assistance of counsel, a counsel’s deficient

performance must have prejudiced the defendant). Similarly, Duran’s claim that

an expert witness would have prompted the jury to believe his testimony and

disregard the statements he made during the police interview is conclusory and

speculative, and does not amount to a showing of prejudice. See Tejada v. Dugger,



                                           20
941 F.2d 1551, 1559 (11th Cir. 1991) (explaining that a petitioner is not entitled to

an evidentiary hearing or federal habeas relief on his ineffective-assistance-of-

counsel claims where the claims are conclusory or wholly incredible). Duran thus

failed to satisfy either prong of the Strickland standard because he did not show

that his counsel’s decision not to call an expert witness was deficient or that, to the

extent the decision was deficient, he suffered prejudice as a result. See Strickland,

466 U.S. at 687, 104 S. Ct. at 2064 (holding that, “[u]nless a defendant makes both

showings, it cannot be said that the conviction . . . resulted from a breakdown in

the adversary process that renders the result unreliable”).

      Duran has not met his burden under 28 U.S.C. § 2254(d). In light of the

foregoing, the district court’s denial of Duran’s § 2254 petition is

      AFFIRMED.




                                           21
