Abdullah M. Rasheed v. Hugh Smith , 221 F. App'x 832 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-14108 MAR 14, 2007
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-00629-CV-TWT-1
ABDULLAH M. RASHEED,
Petitioner-Appellant,
versus
HUGH SMITH, Warden,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 14, 2007)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Abdullah M. Rasheed, a pro se Georgia prisoner convicted of armed
robbery, aggravated assault, and false imprisonment and serving a 25-year term of
imprisonment, appeals the district court’s denial of his 28 U.S.C. § 2254 petition
for writ of habeas corpus. In his petition, Rasheed asserted, among other things,
the following claims: (1) that the evidence was insufficient to support his
conviction for armed robbery; and (2) that he received ineffective assistance of
counsel based on trial counsel’s failure to challenge the indictment, to investigate
the backgrounds of a state witness and the victims, and to move for a mistrial or
renew Rasheed’s motion for a severance.1 The district court denied habeas relief.
After careful review, we affirm.
We review a district court’s grant or denial of a § 2254 petition de novo, and
the district court’s underlying factual findings for clear error. See Sims v.
Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). In reviewing a state court’s
decision denying habeas relief, a federal court is prohibited from granting habeas
relief unless the state decision 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 State court proceeding.” 28 U.S.C. §
1We discern no error in the district court’s conclusion that the state courts’ analysis of
Rasheed’s ineffective-assistance-of-appellate-counsel claims was not contrary to, nor an
unreasonable application of, clearly established federal law. To the extent Rasheed raises claims
that he did not assert in the district court -- including the assertion that his trial counsel was
ineffective for failing to quash the original indictment, and that his appellate counsel was ineffective
for failing to raise an ineffective-assistance claim against his trial counsel for not challenging the
indictment -- we will not consider them for the first time here.
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2254(d). Moreover, factual findings of state courts are presumed to be correct, and
a habeas petitioner can rebut them only by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1).
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.First, Rasheed argues that there was inadequate evidence to support his
conviction for armed robbery. The Supreme Court has held, in the context of a
state prisoner’s habeas challenge to the sufficiency of the evidence to support his
conviction, that the “critical inquiry” is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
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the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original), overruled on other
grounds by Schlup v. Delo, 513 U.S. 298 (1995). The 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
stressed that a reviewing court may not substitute its judgment as to whether it
believes the evidence to be sufficient to sustain a conviction. Id. In weighing the
sufficiency of the evidence, the evidence need not rule out every hypothesis except
that of guilt beyond a reasonable doubt. Martin v. Alabama, 730 F.2d 721, 724
(11th Cir. 1994).
In Georgia, the elements of armed robbery are (1) intent to commit a theft;
(2) taking property of another from a person or the immediate presence of another;
and (3) the use of an offensive weapon to accomplish the taking. O.C.G.A. § 16-8-
41. At Rasheed’s trial, the state presented testimony that co-defendant Vetena Garr
took property from the immediate presence of the victims by the use of an
offensive weapon, within the meaning of § 16-8-41. There was also testimony that
Garr acted with Rasheed’s encouragement and went along with the robbery
because she (Garr) feared that Rasheed would kill or hurt her if she did not comply.
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Moreover, Rasheed testified that he was present during the robbery, and admitted
in a statement that he shared in the proceeds of the crime.
The Georgia Court of Appeals’ analysis of the sufficiency of the evidence
was not contrary to nor an unreasonable application of clearly established federal
law. The state court specifically cited to the controlling Supreme Court precedent
on such a claim and applied the standard in reaching its decision. The evidence in
this case, viewed in the light most favorable to the jury’s verdict, demonstrates that
a rational juror could have found Rasheed guilty beyond a reasonable doubt of
armed robbery, under Georgia law. Accordingly, the state courts’ analysis was not
contrary to, or an unreasonable application of, the principles of Jackson.
Turning to Rasheed’s claims of ineffective assistance of counsel, we review
de novo a determination that a habeas claim was procedurally defaulted. Brownlee
v. Haley, 306 F.3d 1043, 1058 (11th Cir. 2002). We also review mixed questions
of law and fact, including ineffective-assistance-of-counsel claims, de novo. Id.The clearly established law on ineffective-assistance-of-counsel claims is set
forth in Strickland v. Washington, 466 U.S. 668 (1984), in which the Supreme
Court established a two-prong test for adjudicating such claims. First, a petitioner
must show that counsel’s performance was deficient. Id. at 687. The proper
measure of performance is “reasonableness under prevailing professional norms.”
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Id. at 688. Counsel is “strongly presumed” to have rendered adequate assistance
and to have exercised reasonable professional judgment. Id. at 690. Counsel’s
performance is deficient if counsel made errors so egregious that he was not
functioning as the counsel guaranteed under the Sixth Amendment. Id. at 687.
Second, a movant must show that the deficient performance prejudiced the
defense. Id. To prove prejudice, a movant must show that there is a reasonable
probability that the outcome would have been different but for counsel’s
unprofessional errors. Id. at 694. “It is not enough for the defendant to show that
the errors had some conceivable effect on the outcome of the proceeding.” Id. at
693.
Here, the Georgia Court of Appeals’ analysis of Rasheed’s ineffective-
assistance-of-counsel claim based on trial counsel’s alleged failure to investigate
was neither contrary to, nor an unreasonable application of, the well-established
law of Strickland. The state court identified the correct standard and applied it to
the factual findings, which were not clearly erroneous and, indeed, were fully
supported by the testimony presented at the evidentiary hearing on Rasheed’s
motion for a new trial. The Georgia court found that Rasheed’s trial counsel had
made a tactical decision concerning the scope of his investigation into whether the
scene of the armed robbery -- a food mart -- was, in actuality, a drug dealing
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establishment. Counsel testified that such a theory was inconsistent with
Rasheed’s theory of defense, which was that Rasheed had no connection to the
robbery other than merely being present. Thus, the Georgia court concluded
Rasheed had not satisfied his burden on the performance prong of the Strickland
ineffective-assistance test.2 This conclusion was not contrary to, or an
unreasonable application of, Strickland.
Likewise, the denial of Rasheed’s claim of ineffective assistance of counsel
for failure to move for a mistrial or renew a motion for a severance was not
contrary to, or an unreasonable application of, Strickland. During the hearing on
Rasheed’s motion for a new trial, the trial court specifically stated that had counsel
moved for a mistrial, it would not have granted the motion. Moreover, the Georgia
Court of Appeals noted that if such a motion had been filed, and denied, such a
ruling would not have been disturbed on appeal. Thus, trial counsel’s performance
was not deficient under Strickland -- the filing of a mistrial motion, or a motion for
severance, would have been futile and thus, counsel’s decision not to pursue this
2
Given Rasheed’s failure to satisfy the first prong, the state court was not required to
consider the second prong. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000). We
observe, however, that the court concluded that Rasheed’s ineffective-assistance claim based on trial
counsel’s investigation also failed on the prejudice prong.
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course of action was not deficient under Strickland. For the same reasons, Rasheed
has failed to show prejudice as to this claim.3
Accordingly, the district court did not err in denying the petition for writ of
habeas corpus.
AFFIRMED.
3
With respect to Rasheed’s ineffective-assistance claim for failure to file a renewed
motion for a severance, the Georgia Court of Appeals concluded that Rasheed had waived this claim
by not raising it on direct appeal. The existence of an adequate and independent state ground for
denial of the claim procedurally bars this Court’s review. See Upshaw v. Singletary, 70 F.3d 576,
579 (11th Cir. 1995). Moreover, Rasheed has not shown cause for the default and actual prejudice,
nor has he established a fundamental miscarriage of justice sufficient to excuse the default.
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