Ojeda v. Secretary for Department of Corrections , 279 F. App'x 953 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 4, 2008
THOMAS K. KAHN
No. 07-14174
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 04-20964-CV-ASG
MICHAEL OJEDA,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
Secretary, Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 4, 2008)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Petitioner Michael Ojeda (“Ojeda”), a Florida state prisoner proceeding pro
se, appeals the denial of his petition for habeas corpus. We granted a certificate of
appealability (“COA”) on the issue of whether Ojeda received ineffective
assistance of counsel. Ojeda argues that he received ineffective assistance of
counsel in three ways: (1) counsel failed to move to suppress a confession that he
never gave and was obtained in violation of the law; (2) counsel failed to
interview, depose, and investigate state and defense alibi witnesses; and (3)
counsel failed to investigate and introduce exculpatory evidence of a footprint
found at the scene of the crime.1
“When reviewing the district court’s denial of a habeas petition, we review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).
Because Ojeda filed his federal habeas petition after April 24, 1996, this case
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Ojeda also argues that he should have been granted an evidentiary hearing on his claims
of ineffectiveness. While not specifically covered by the COA, we have jurisdiction to consider
the issue because it is subsumed into the question of whether counsel was ineffective. See
Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (finding that an evidentiary
hearing was warranted on an ineffective assistance of counsel claim even though the COA only
specifically addressed the issue of whether the movant received ineffective assistance). An
evidentiary hearing, however, was unnecessary because the trial transcripts sufficiently
addressed the issue, and thus
a hearing would not have added any new information. See Schriro v. Landrigan, 550 U.S. ___,
___, 27 S. Ct. 1933, 1940, 167 L. Ed. 2d 836 (2007) (holding that if the record refutes the factual
allegations in the petition or otherwise precludes habeas relief, a district court is not required to
hold an evidentiary hearing).
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is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
which “establishes a highly deferential standard for reviewing state court
judgments.” McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005) (citation
omitted). An application for a writ of habeas corpus may be granted when any
claim that was adjudicated on the merits in State court proceedings resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law or “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). The Supreme Court has said that
Under the ‘contrary to’ clause, a federal habeas court may grant
the writ if the state court arrives at a conclusion opposite to that
reached by this Court on a question of law or if the state court decides
a case differently than this Court has on a set of materially
indistinguishable facts. Under the ‘unreasonable application’ clause, a
federal habeas court may grant the writ if the state court identifies the
correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-413, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d
389 (2000). The determination of a factual issue made by a state court shall be
presumed to be correct unless rebutted by the applicant by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
To demonstrate ineffective assistance of counsel, a prisoner must show that
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counsel’s performance was deficient and that the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674 (1984). There is no reason for a court deciding an ineffective-
assistance-of-counsel claim to approach the inquiry in the same order, or even to
address both components of the inquiry, if the petitioner makes an insufficient
showing on one. Id. at 697, 104 S. Ct. at 2069.
The proper measure of attorney performance is reasonableness under the
prevailing professional norms, and judicial scrutiny of counsel’s performance must
be highly deferential. Id. at 688, 104 S. Ct. at 2065. If the record is incomplete or
unclear about counsel’s actions, then it is presumed that counsel exercised
reasonable professional judgment. Chandler v. United States, 218 F.3d 1305, 1314
n.15 (11th Cir. 2000) (en banc). Counsel is not incompetent so long as the
particular approach taken could be considered sound strategy. Id. at 1314.
To prove 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.” Strickland, 466 U.S. at 694, 104 S. Ct. at
2068. The court must also consider the totality of the evidence before the judge or
jury in making the prejudice determination. Id. at 695, 104 S. Ct. at 2069.
“Th[e] correct approach toward investigation reflects the reality that lawyers
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do not enjoy the benefit of endless time, energy or financial resources.” Rogers v.
Zant, 13 F.3d 384, 387 (11th Cir. 1994). To be effective, a lawyer is not required
to “pursue every path until it bears fruit or until all hope withers.” Williams v.
Head, 185 F.3d 1223, 1237 (11th Cir. 1999) (citation omitted). “The question is
whether . . . ending an investigation short of exhaustion, was a reasonable tactical
decision. If so, such a choice must be given a strong presumption of correctness,
and the inquiry is generally at an end.” Mills v. Singletary, 63 F.3d 999, 1024 (11th
Cir. 1995) (citation omitted).
A lawyer’s failure to raise a meritless issue cannot prejudice a client. See
United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992). The burden of
persuasion is on the petitioner to prove, by a preponderance of the evidence, that
counsel’s performance was unreasonable. Chandler, 218 F.3d at 1313.
After reviewing the record, we conclude that Ojeda failed to demonstrate
that the state habeas court unreasonably applied federal law in denying his claims
of ineffective assistance of counsel because the motion to suppress would have
been meritless, and counsel’s decision to not call alibi witnesses was a reasonable
strategic decision. Moreover, we conclude that the district court did not err in
finding that counsel’s failure to introduce the footprint was not prejudicial to
Ojeda because the evidence would not have reasonably led to a different outcome.
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Accordingly, we affirm the judgment denying habeas relief.
AFFIRMED.
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