           Case: 14-12286   Date Filed: 05/06/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12286
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 8:10-cv-01678-JDW-AEP



CURTIS LEE SHULER,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

                                                       Respondents-Appellees.

                      ________________________

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

                              (May 6, 2015)

Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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      Curtis Shuler, a Florida prisoner proceeding pro se, appeals the District

Court’s denial of his 28 U.S.C. § 2254 habeas corpus petition for relief from his

convictions and resulting life sentence without the possibility of parole for felony

first degree murder and attempted burglary stemming from an attempted

carjacking. The District Court granted a certificate of appealability as to whether

Shuler was denied due process in violation of Giglio v. United States, 405 U.S.

150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), when the State elicited misleading

testimony on cross-examination.

      Briefly, the salient facts are these. During his defense, Shuler called his co-

defendant, Sylathum Streeter, who had previously stated under oath that Shuler

was responsible for shooting the victim. On the stand, Streeter testified that

another conspirator, Victor Lester, was responsible, and that his previous testimony

was the result of an agreement with Lester to frame Shuler. On cross, the State

elicited testimony that Streeter had participated in several other shootings after the

carjacking at issue, but when subsequently questioned by police, had admitted his

involvement in the other crimes while only implicating Shuler in the carjacking.

      In fact, Streeter had implicated Shuler in at least one of those crimes, and

both Shuler and the State were aware of that fact. Shuler did not object, however,

and did not correct the misleading impression on re-direct. Shuler raised the issue




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in his direct appeal, but the Florida District Court of Appeal affirmed without

opinion. Shuler v. State, 888 So. 2d 35 (Fla. 2d DCA 2004) (table).

      In the instant appeal, Shuler argues that the District Court erred in finding no

Giglio violation. He asserts that the misleading testimony was material and left

him in the “untenable position” of having to testify to his other crimes in order to

contradict the impression that Streeter had not implicated him in any other crime.

      “We review de novo the grant or denial of a writ of habeas corpus by a

district court.” Hittson v. GDCP Warden, 759 F.3d 1210, 1230 (11th Cir. 2014)

(quoting Muhammad v. Sec’y, Fla. Dep’t of Corr., 733 F.3d 1065, 1071 (11th Cir.

2013)). Thus, we review Shuler’s Giglio claim using the standard established by

28 U.S.C. § 2254—the same standard the District Court used.

      Under that statute, we may not grant habeas relief with respect to claims

adjudicated on the merits in state court unless the judgment of the state court, here

the Florida District Court of Appeal, (1) resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established federal law, as

determined by the Supreme Court of the United States; or (2) resulted in a decision

that 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” established federal law if (1) the state

arrives at a conclusion opposite to that reached by the Supreme Court on a question


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of law, or (2) a state court confronts facts “materially indistinguishable” from

relevant Supreme Court precedent, but reaches an opposite result. Williams v.

Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519, 146 L. Ed. 2d 389 (2000).

      An adjudication on the merits in state court is defined as “any state court

decision that does not rest solely on a state procedural rule.” Shelton v. Sec’y

Dep’t of Corr., 691 F.3d 1348, 1353 (11th Cir. 2012) (quotations omitted). Thus, a

state appellate court’s affirmance of an appellant’s conviction and sentence without

written opinion is entitled to deference, “unless the state court clearly states that its

decision was based solely on a state procedural rule.” Id. (quotation omitted).

However, in this situation, “instead of deferring to the reasoning of the state trial

court, [we] ask[] whether there was any reasonable basis for the [state appellate

court] to deny relief.” Wilson v. Ga. Diagnostic Prison, 774 F.3d 671, 678 (11th

Cir. 2014).

      “Giglio error, a species of Brady [v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,

10 L. Ed. 2d 215 (1963)] error, occurs when the undisclosed evidence demonstrates

that the prosecution’s case included perjured testimony and that the prosecution

knew, or should have known, of the perjury.” Ford v. Hall, 546 F.3d 1326, 1331

(11th Cir. 2008) (quotations omitted and emphasis added).

      Here, there was no Giglio violation because there was no undisclosed

evidence. See Hammond v. Hall, 586 F.3d 1289, 1308–09 (11th Cir. 2009)


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(holding that Giglio claim failed because the evidence was known by defense

counsel). Shuler knew exactly what the State knew—that Streeter had actually

implicated Shuler in one or more collateral crimes—and made a strategic decision

not to go further down that road, either by objecting or by clarifying on re-direct.

See Stephens v. Hall, 407 F.3d 1195, 1206 (11th Cir. 2005) (“There is no violation

of due process resulting from prosecutorial non-disclosure of false testimony if

defense counsel is aware of it and fails to object.” (quoting Routly v. Singletary, 33

F.3d 1279, 1286 (11th Cir. 1994)).

      Furthermore, when he called Streeter in his defense, Shuler opened the door

to vigorous cross-examination about Streeter’s credibility. Having made that

choice, Shuler cannot then complain about being forced to make a difficult

decision between trying to patch up Streeter’s credibility and minimizing

discussion of his own involvement in collateral criminal activity.

      We conclude that the Florida District Court of Appeal did not misapply the

Supreme Court’s holding in Giglio, because the State’s cross-examination of

Streeter did not constitute a Giglio violation.

      AFFIRMED.




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