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                                                                                [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-15385
                               ________________________

                       D.C. Docket No. 4:10-cv-00141-BAE-GRS


EUGENE FRENCH,

                                                                       Petitioner-Appellant,

                                            versus

WARDEN, WILCOX STATE PRISON,
ATTORNEY GENERAL, STATE OF GEORGIA,

                                                                   Respondents-Appellees.

                              ________________________

                      Appeal from the United States District Court
                         for the Southern District of Georgia
                            ________________________

                                      (June 23, 2015)

Before MARTIN and ANDERSON, Circuit Judges, and MORENO,* District
Judge.

ANDERSON, Circuit Judge:

___________________

*Honorable Federico A. Moreno, United States District Judge for the Southern District of
Florida, sitting by designation.
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      Eugene French appeals the district court’s denial of his petition for a writ of

habeas corpus under 28 U.S.C. § 2254. French argues that he received ineffective

assistance of counsel in violation of the Sixth Amendment to the United States

Constitution because his trial counsel failed to proffer evidence that one of his

alleged victims had falsely accused him of kidnapping. His attorney’s failure to

perfect the record for appeal caused the Georgia Court of Appeals to decline to

address the issue. French also asserts that the trial court’s exclusion of this

evidence and prohibition of cross-examination with respect thereto violated his

rights under the Confrontation Clause of the Sixth Amendment and, relatedly, that

counsel was ineffective in failing to raise the Confrontation issue on direct appeal.

                                 I. BACKGROUND

      This case arises from French’s convictions for molesting his daughter, B.F.,

and her friend, A.S. The Georgia Court of Appeals summarized the facts as

follows:

      [W]hen B.F., French’s biological daughter, was 15 years old and
      living in Michigan with her mother, she entered a poetry contest and
      submitted a poem entitled, “A Child’s Pain.” A teacher who read the
      poem became concerned based on the poem’s content, that B.F. may
      have been the victim of child molestation. As a result of the teacher’s
      concern, B.F. was interviewed by Michigan social services personnel.
      During the interviews, B.F. revealed that she had lived with French
      when she was 11 or 12 years old and that he had in fact molested her.
      She recounted a specific instance when French entered her bedroom
      one night and sodomized her by inserting his penis inside of her anus.
      B.F.’s disclosures launched a police investigation which further led
      police to A.S., B.F.’s childhood friend.
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      When A.S. was interviewed, she was living in Florida and had not
      seen or spoken to B.F. in many years. As soon as police broached the
      subject with A.S., she began to cry. In a written statement, A.S.
      disclosed that French had molested her when she attended a slumber
      party for B.F.’s birthday at French’s residence. A.S. recalled that
      while the others were either sleeping or playing games, she found
      herself alone with French in his bedroom, with the lights off. As she
      lay on the bed with French, he sodomized her by inserting his penis
      inside of her anus.

French v. Georgia, 

, 225 (Ga. App. Ct. 2007).

      At trial, French’s chief theory of defense was that B.F.’s mother, with whom

he had once been romantically involved, pressured B.F. to fabricate allegations of

molestation to extort money from French. In support of this theory, French’s

attorney (hereinafter referred to as “attorney”) attempted to introduce evidence that

B.F. had falsely accused him of kidnapping her. Before trial, the prosecutor filed a

motion in limine to prevent French from mentioning the false kidnapping

accusation. Although the prosecutor acknowledged that the false accusation may

have occurred, the trial court granted the prosecutor’s motion, ruling that a prior

false accusation cannot be used to impeach a victim. The attorney did not proffer

any evidence of the incident to the court and did not raise the issue during trial.

French was subsequently convicted of two counts of aggravated child molestation

(one with respect to B.F. and one with respect to A.S.) and sentenced to concurrent

sentences of twenty years’ imprisonment.

      French appealed his conviction to the Georgia Court of Appeals. French
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was still represented on direct appeal by the same attorney. He argued, among

other things, that the trial court erroneously excluded the evidence of B.F.’s false

kidnapping accusation. 

. Although the appellate court

observed that “[t]he state of a witness’s feelings toward the parties and his

relationship to them may always be proved for the consideration of the jury,” it

ultimately concluded that it could not reach the merits of French’s claim because

the attorney “did not perfect the record with a sufficient proffer of the excluded

evidence.” 

n.2. The court expounded on the attorney’s error, observing

that

       [w]here the error alleged is that certain evidence has been wrongfully
       excluded, the rule is well settled that there must have been a proffer or
       offer of a definite sort that both courts can know whether the
       witnesses really exist and that the evidence really exists. The record
       [must] show . . . what questions were asked or what answers were
       expected from the witnesses. In the absence of this information, the
       assignment of error is so incomplete as to preclude its consideration
       by this court.

(citation omitted).

       After the Georgia Court of Appeals denied the attorney’s motion for

reconsideration, French filed a pro se state habeas petition, raising various claims

of ineffective assistance of counsel. In pertinent part, French asserted that his

attorney provided ineffective assistance by failing to make a sufficient proffer of

the false kidnapping accusation.

       An evidentiary hearing was held, at which French tried to introduce “a few
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affidavits” pertaining to an unspecified matter. The State objected to the

introduction of the affidavits on the basis that French had not given proper notice

of the affidavits pursuant to O.C.G.A. § 9-14-48(c),1 thus preventing the State from

calling the witnesses for cross-examination. French then requested that the court

leave the record open for thirty days in order to submit the affidavits. The State

objected, stating that would not resolve the problem; namely, its ability to cross-

examine the affiants. When the State asked French if he was asking for a

continuance, he affirmatively rejected that position and instead reiterated his

question: “What I’m asking is if the record is left open and I provide counsel

copies of these affidavits would that facilitate the requirement?” The court

responded, “No it will not.” After the attorney testified, and at the conclusion of

the hearing, French, without reference to the earlier unsuccessful attempt to

introduce affidavits, requested that the court leave the record open for thirty days

“[t]o submit supporting documentation.” The court granted French’s request and

directed him to send a copy of his supporting documentation to the Attorney

General’s office.

       The state habeas court denied French’s petition. After holding that French’s

several claims of trial court error were procedurally barred, the habeas court

1
        “If sworn affidavits are intended by either party to be introduced into evidence, the party
intending to introduce such affidavits shall cause it to be served on the opposing party at least ten
days in advance of the date set for a hearing in the case.” O.C.G.A. § 9-14-48(c).

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addressed French’s ineffective assistance of counsel claims. The state habeas court

fully adopted the attorney’s testimony, and concluded that French “failed to

establish that counsel was in any way deficient or unreasonable in his

representation” at trial. In the crucial holding for purposes of the issues before us,

the state habeas court held that French failed to show a reasonable likelihood that

the attorney’s performance affected the outcome of French’s case. The Georgia

Supreme Court denied French’s application to appeal the denial of his petition.

      French, proceeding pro se, timely filed the instant federal habeas corpus

petition in the Southern District of Georgia. Initially, the magistrate judge issued a

report and recommendation directing further briefing from the State, “particularly

on the issue [of] whether an evidentiary hearing is warranted to adduce the

evidence [the attorney] failed to proffer, and to also show why the state habeas

judge’s ruling is not ‘§ 2254(d) unreasonable.’” French v. Carter, 

, 1343 (S.D. Ga. 2012). In particular, the magistrate judge expressed concern

that “in ruling against French [the state habeas court] . . . simply rehashed [the

attorney’s] own testimony about his general, trial preparation efforts, and did not

discuss any testimony or evidence on th[e] particular claim” with respect to the

attorney’s failure to perfect the record. 

      After briefing, the magistrate judge declined to hold an evidentiary hearing

or consider the additional affidavits because “French failed to perfect the record


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before the state habeas court in much the same way that he faults [his attorney] for

failing to perfect it at trial.” French v. Carter, No. CV410-141, 

,

at *2 (S.D. Ga. Aug. 16, 2012), report and recommendation adopted, No. CV410-

141, 

(S.D. Ga. Oct. 2, 2012). Further, the magistrate judge

concluded that French failed to satisfy either the performance prong or prejudice

prong of Strickland v. Washington. 2 As to the prejudice prong, the magistrate

judge noted that French received the same twenty-year concurrent sentence with

respect to A.S., and that nothing in the record suggests that the jury’s verdict with

respect to A.S. was tainted by B.F.’s testimony. 

Applying the deferential

§ 2254(d)(1) standard, the magistrate judge found against French on the prejudice

prong. 

court adopted the magistrate judge’s recommendation, and

French timely appealed that order. We appointed counsel on appeal.

                            II. STANDARD OF REVIEW

      We review de novo the district court’s denial of federal habeas relief.

Peterka v. McNeil, 

, 1200 (11th Cir. 2008). However, our review of

the state habeas court’s decision is constrained by § 2254(d) of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), which “imposes a highly

deferential standard for evaluating state court rulings and demands that state-court

2
      

, 

(1984).

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decisions be given the benefit of the doubt.” Bishop v. Warden, GDCP, 

, 1253 (11th Cir. 2013), cert. denied, ___ U.S. ___, 

(2014)

(internal quotation omitted). Pursuant to the AEDPA, this Court is prohibited from

granting relief if a state court has adjudicated a claim on the merits unless the state

court’s decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceedings,” 

MOTION TO SUPPLEMENT THE RECORD OR REMAND

      To address the merits of this petition, we must first clarify the scope of our

review in light of French’s “Motion to Supplement the Record on Appeal or, in the

Alternative, for Remand for Evidentiary Hearing.” Therein, French asks us to

admit five affidavits that pertain to B.F.’s false kidnapping accusation.

Alternatively, French requests a limited remand for the district court to hold an

evidentiary hearing on whether he diligently sought to perfect the state habeas

record. [While we initially granted French’s request to supplement the record, we

now vacate that order.

      French concedes that the state habeas record does not include the affidavits.

In Cullen v. Pinholster, ___ U.S. ___, 

(2011), the Supreme Court


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held that, even in a case in which a habeas petitioner can satisfy the requirements

of 28 U.S.C. § 2254(e)(2)3 with respect to obtaining an evidentiary hearing in

federal court, the § 2254(d)(1) review by the federal court nevertheless must be

based on the state court record. See id. at ___, 131 S. Ct. at 1400 (“If a claim has

been adjudicated on the merits by state court, a federal habeas petitioner must

overcome the limitation of § 2254(d)(1) on the record that was before that state

court.”); see also Landers v. Warden, 

, 1295 (11th Cir. 2015) (We

cannot consider evidence that was not before the state court in evaluating the

merits of a claim unless a petitioner first “demonstrate[s] a clearly-established

federal law error or an unreasonable determination of fact on the part of the state

court, based solely on the state court record.”). It is undisputed in this case that the

state habeas court did in fact adjudicate the merits of French’s ineffective

assistance of counsel claims—both with respect to the performance prong and the

prejudice prong of Strickland. It is also undisputed that, although French

attempted to introduce a few affidavits, the state habeas court ruled that French had

failed to provide the required ten-day notice prior to the evidentiary hearing, thus

precluding the State from calling the witnesses and subjecting them to cross-

examination. French expressly denied requesting a continuance, but did request


3
       In light of our holding, we need not address whether French could satisfy the demanding
requirements of § 2254(e)(2).

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that the court leave the record open for thirty days so he could submit the

affidavits, asking the court if that would cure the notice problem. The habeas court

ruled that it would not cure the problem. Finally, it is undisputed that the affidavits

were not in the state habeas court record, and that the state habeas court denied

French’s ineffective assistance of counsel claims on the merits without the benefit

of the affidavits. Under Pinholster, our § 2254(d)(1) review must be conducted on

the basis of the record that was before the state habeas court when it adjudicated

the merits of French’s ineffective assistance of counsel claims. See ___ U.S. at

____, 131 S. Ct. at 1399 (“Our cases emphasize that review under § 2254(d)(1)

focuses on what a state court knew and did.”) Accordingly, French’s motion to

supplement the record must be denied.

      For the same reasons, French’s alternative motion to remand for an

evidentiary hearing in federal court is denied. Any evidence from such an

evidentiary hearing would have “no bearing on [our] § 2254(d)(1) review.” Id. at

___, 131 S. Ct. at 1400.

      Accordingly, we now turn to French’s arguments on appeal.

                IV. INEFFECTIVE ASSISTANCE OF COUNSEL

      French contends his trial and appellate attorney was ineffective because he

failed to perfect the record for appeal, thereby defaulting French’s claim that B.F.’s




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false kidnapping accusation was wrongfully excluded.4 Ineffective assistance of

counsel claims, even when reviewed de novo, present substantial hurdles to

petitioners who must prove both that counsel’s performance was deficient and the

deficient performance prejudiced his defense. Strickland v. Washington, 

, 687, 

, 2064 (1984). To prove deficient performance, the

petitioner must show that counsel made errors so serious that he or she was not

functioning as the counsel guaranteed by the Sixth Amendment. 

measure of attorney performance is reasonableness under prevailing professional

norms, and judicial scrutiny is highly deferential. 

104 S. Ct. at 2065.

There is a strong presumption that counsel’s conduct fell within the range of

reasonable professional assistance. 

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.”                

104 S. Ct. at 2068.              A

reasonable probability is one sufficient to undermine confidence in the outcome,

and it is not enough for the defendant to show that the error had some conceivable

effect on the outcome of the proceeding. 

104 S. Ct. at 2067. In short,


4
        In addition to his claim with respect to the attorney’s failure to perfect the record, French
claims that he received ineffective assistance of counsel because the attorney’s failure to cross-
examine B.F. with regard to the false kidnapping accusation fatally undermined his defense.
Because we find that French has failed to establish prejudice with respect to the actual evidence
of the false accusation, this claim is likewise unavailing.

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“[c]ounsel’s errors must be so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Harrington v. Richter, 

, 104, 

, 787-88 (2011) (internal quotation omitted). “Surmounting Strickland’s high

bar is never an easy task.” 

131 S. Ct. at 788 (internal quotation

omitted). However, when a state court has already ruled on the merits of an

ineffective assistance of counsel claim, as occurred in this case, the petitioner’s

burden of

      [e]stablishing that [its] application of Strickland was unreasonable
      under § 2254(d) is all the more difficult. The standards created by
      Strickland and § 2254(d) are both “highly deferential,” . . . and when
      the two apply in tandem, review is “doubly” so. . . . The Strickland
      standard is a general one, so the range of reasonable applications is
      substantial. . . . Federal habeas courts must guard against the danger
      of equating unreasonableness under Strickland with unreasonableness
      under § 2254(d). When § 2254(d) applies, the question is not whether
      counsel’s actions were reasonable. The question is whether there is
      any reasonable argument that counsel satisfied Strickland’s deferential
      standard.

AEDPA “preserves authority to issue the writ in cases where there

is no possibility fairminded jurists would disagree that the state court’s decision

conflicts with [the Supreme] Court’s precedents.” 

131 S. Ct. at 786.

Moreover, as noted above, a federal court’s § 2254(d)(1) review is based solely on

the record before the state court that adjudicated the claim on the merits. See

Pinholster, ___ U.S. at ___, 131 S. Ct. at 1399.


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      Similarly, under § 2254(d)(2), “[t]he question . . . is not whether the federal

court believes the state court’s decision was incorrect but whether the

determination was unreasonable—a substantially higher threshold.” Schriro v.

Landrigan, 

, 473, 

, 1939 (2007). “[T]he Supreme

Court has found state factual findings unreasonable under § 2254(d)(2) when the

direction of the evidence, viewed cumulatively, was too powerful to conclude

anything but [the petitioner’s factual claim] . . . and when a state court’s finding

was clearly erroneous.” Landers v. Warden, 

, 1294 (11th Cir. 2015)

(internal quotations omitted). In accordance with Wiggins v. Smith, 

,

(2003), we consider the reasonableness of the state habeas court’s

factual determinations separately with respect to each of Strickland’s prongs. 

123 S. Ct. at 2542.

      Consequently, “it will be a rare case in which an ineffective assistance of

counsel claim that was denied on the merits in state court is found to merit relief in

a federal habeas proceeding.” Johnson v. Sec’y Dep’t of Corr., 

, 911

(11th Cir. 2011). In the “rare case” a petitioner meets this high standard, we

conduct a de novo review, without deference to the state court’s decision. Jones v.

Walker, 

, 1288 (11th Cir. 2008) (en banc).

                                          A.

      We begin with Strickland’s performance prong. The state habeas court held


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that French “failed to establish that counsel was in any way deficient or

unreasonable in his representation,” citing the attorney’s general testimony that he

“did ‘all the customary things’ that he felt one should do in a case of such nature . .

. . He testified that ultimately the case was fully investigated, comprehensive, and

prepared for trial.” French contends that this conclusion was based on an

unreasonable determination of the facts because the attorney’s failure to proffer

evidence of the false kidnapping accusation precluded appellate review. We agree.

      The procedure for introducing impeachment evidence is “well settled” under

Georgia law: “there must have been a proffer or offer of a definite sort that both

courts can know whether the witnesses really exist and that the evidence really

exists.” Wand v. State, 

, 775 (Ga. Ct. App. 1998) (quoting

Thompson v. State, 

, 524 (Ga. Ct. App. 1988)) (internal quotation

marks omitted); see also Dent v. State, 

, 313 (Ga. Ct. App. 1996)

(declining to review admissibility issue because “it [was] clear from [the record]

that defendant made no proffer of the substance of any ‘admission’ purportedly

admissible against [the] non-party witness”). The attorney’s failure to follow this

clear procedural requirement constitutes deficient performance.

      As noted above, the Georgia Court of Appeals on direct appeal refused to

consider whether the trial court erred in excluding evidence of B.F.’s prior false

accusation because the attorney failed to perfect the record by way of a proffer.


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. In the state habeas proceedings, French repeatedly

argued that he had received ineffective assistance of counsel because the attorney

failed to proffer evidence of the prior false accusation, thus precluding a successful

appeal with respect to that issue. For example, French asked the attorney during

his testimony: “Did you recognize the point that defense has to request a hearing

to have the information, the false allegations, admitted during trial?”, and “did you

follow the procedures for preferring [sic] evidence?” However, the attorney

simply responded that he “followed the procedure that is outlined.”

      The state habeas court made an unreasonable determination of the facts

when it simply accepted the attorney’s testimony that he “went through the proper

procedures.” When the attorney decided to introduce the false kidnapping

accusation, he was required to follow the clearly-established state law procedures

to preserve that evidence for appellate review. This mistake of law cannot be

equated to a simple strategic misstep. See Hinton v. Alabama, ___ U.S. ___, ___,

, 1088 (2014) (“An attorney’s ignorance of a point of law that is

fundamental to his case combined with his failure to perform basic research on that

point is a quintessential example of unreasonable performance under Strickland.”);

see also Kimmelman v. Morrison, 

, 385, 

, 2588 (1986)

(finding deficient performance in part because “[c]ounsel’s failure to request

discovery . . . was not based on ‘strategy,’ but on counsel’s mistaken beliefs that


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the State was obliged to take the initiative and turn over all of its inculpatory

evidence to the defense”). Accordingly, we conclude that French has satisfied

Strickland’s performance prong.

                                          B.

      Having determined that the attorney’s performance was deficient, we must

now decide whether his actions prejudiced French’s defense. “When a defendant

raises the unusual claim that trial counsel, while efficacious in raising an issue,

nonetheless failed to preserve it for appeal, the appropriate prejudice inquiry asks

whether there is a reasonable likelihood of a more favorable outcome on appeal

had the claim been preserved.” Davis v. Sec’y for Dep’t of Corr., 

,

1316 (11th Cir. 2003) (per curiam); see also Eagle v. Linahan, 

, 943

(11th Cir. 2001) (“If we conclude that the omitted claim would have had a

reasonable probability of success, then counsel’s performance was necessarily

prejudicial because it affected the outcome of the appeal.”). In other words, we

must determine whether French had a reasonable likelihood of securing a new trial

if the attorney had properly preserved the evidence of B.F.’s false kidnapping

accusation.

      The state habeas court held that French “failed to show . . . a reasonable

likelihood that but for counsel’s alleged errors the outcome of [his] case would

have been significantly different.” Applying § 2254(d)(1), we cannot conclude


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that the state habeas court’s ruling was an unreasonable application of Strickland.

French has not demonstrated that the state court’s analysis of the prejudice prong

was contrary to clearly established Supreme Court precedent or factually

unreasonable based on the evidence presented in the state court proceedings.

There is simply no evidence in the record of the fact of the prior false accusation or

the testimony that cross-examination would have elicited which can be weighed on

French’s side to find there is a reasonable probability of a different result on

appeal. In fact, the Georgia Court of Appeals knew from the discussion at the

motion in limine hearing before the trial judge that the prosecutor’s understanding

of the alleged prior false accusation involved French’s keeping B.F. longer at his

house than she was supposed to be there, and the authorities in Lawrenceville were

called. Indeed, French’s brief on direct appeal quoted the relevant colloquy from

the hearing on the motion in limine. However, the Georgia Court of Appeals

concluded that it did not have enough information about the substance of that

accusation to even entertain the merits of that evidentiary issue on direct appeal. In

that crucial holding, the state appellate court concluded that this meager

information was insufficient to warrant reversal and a new trial.

      The problem that French faces before this Court is that we have no more

information about the substance of B.F.’s accusation against French than did the

Georgia Court of Appeals. Because French failed at the evidentiary hearing in the


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state habeas court to get before the habeas court the five affidavits pertaining to

B.F.’s false accusation (or other evidence of significance relating to the substance

thereof), the state habeas court had no more information about B.F.’s accusation

than did the Georgia Court of Appeals on French’s direct appeal. With that meager

information, the state habeas court held that French had “failed to show that there

existed a reasonable likelihood that, but for counsel’s alleged error, the outcome of

petitioner’s case would have been significantly different.”

      The issue before us is whether that holding of the state habeas court—i.e.,

that French failed to satisfy the prejudice prong of Strickland—was an

unreasonable application of Strickland. See § 2254(d)(1). And, pursuant to

Pinholster, our review is “limited to the record that was before the state court that

adjudicated the claim on the merits.” ___ U.S. at ___, 131 S. Ct. at 1398. Just like

the state habeas court, we have no more information about the substance of B.F.’s

accusation against French than did the Georgia Court of Appeals on French’s

direct appeal. We cannot conclude that the ruling of the state habeas court was an

unreasonable application of Strickland pursuant to § 2254(d)(1). The state habeas

court had precisely the same information that the Georgia Court of Appeals had, so

we cannot conclude that there is a reasonable probability that the result in the

Georgia Court of Appeals on direct appeal would have been different.

Accordingly, we certainly cannot conclude that the ruling of a state habeas court to


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the same effect was an unreasonable application of the Strickland prejudice prong

pursuant to § 2254(d)(1).5

                             V. CONFRONTATION CLAUSE

       Finally, French contends that the trial court’s exclusion of the false

kidnapping accusation and the trial court’s ruling prohibiting cross-examination

with respect thereto violated his rights under the Confrontation Clause of the Sixth

Amendment 6 and, relatedly, that the attorney was ineffective in failing to raise the

issue on direct appeal. 7 These claims are procedurally barred.

       These claims are procedurally barred because French did not fairly present

them to the state habeas court. The “fair presentation” requirement is designed to

ensure that state courts have the opportunity to hear all claims. Picard v. Connor,


5
        In light of our holding, we need not address the holding of the magistrate judge that the
state habeas court ruling is not unreasonable because French received the same concurrent
twenty-year sentence for his conviction with respect to A.S.
6
       As the Supreme Court explained in Delaware v. Van Arsdall, 

, 

(1986),

       [A] criminal defendant states a violation of the Confrontation Clause by showing
       that he was prohibited from engaging in otherwise appropriate cross-examination
       designed to show a prototypical form of bias on the part of the witness, and
       thereby to expose to the jury the facts from which jurors could appropriately draw
       inferences relating to the reliability of the witness.

106 S. Ct. at 1436.
7
        Ineffective assistance of counsel for failure to raise a Confrontation Clause claim on
direct appeal cannot succeed for two reasons: first, it was raised for the first time in the
counseled brief on appeal to us; and second, the claim was not fairly presented to the state habeas
court, as addressed below.

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, 275, 

, 512 (1971). Accordingly, federal courts require

a petitioner to present his claims to the state court “such that a reasonable reader

would understand each claim’s particular legal basis and specific factual

foundation.” Kelley v. Sec’y Dept. of Corr., 

, 1344-45 (11th Cir.

2004). As this Court has observed, a petitioner cannot “scatter some makeshift

needles in the haystack of the state court record. The ground relied upon must be

presented face-up and squarely; the federal question must be plainly defined.

Oblique references which hint that a theory may be lurking in the woodwork will

not turn the trick.” 

(internal quotation omitted).

      Although it is difficult to “pinpoint the minimum requirements that a habeas

petitioner must meet in order to exhaust his remedies,” it is clear that French’s

pleadings did not meet this threshold. See McNair v. Campbell, 

,

1302 (11th Cir. 2005); see, e.g., Lucas v. Sec’y, Dep’t of Corr., 

,

1352 (11th Cir. 2012) (“Simply referring to a ‘constitutional right of confrontation

of witnesses’ is not a sufficient reference to a federal claim . . . .”). French

mentioned the word “confrontation” only one time in his state habeas petition, and

this mention was buried in a paragraph claiming that French’s appellate counsel

was ineffective for failure to assert judicial bias. The relevant paragraph stated as

follows:

      5) Appeal counsel failed to assert trial judge judicial bias for denying
      defense to present evidence of false allegations. TT, VLI, PG 6-8
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      Trial judge denied defense to present evidence of prior false
      allegations after determining falsity exists and stating evidence was
      admissible, thereby prejudicing defendant, denying his right of
      confrontation, and right to a full defense. Trial counsel admitted to
      judges bias in habeas corpus hearing.

      Before admitting evidence of prior false accusations trial court,
      outside the presence of the jury, must determine “that a reasonable
      probability of falsity exists.” Ellison v. State, 

, 

, 361 (1990)

      Ellison v. State: Trial court erred in refusing to admit evidence of
      prosecutrix’s prior false allegations after falsity was proved

      Under canon 3C(1)(A) of GA Code of Judicial Conduct, a judge
      should disqualify himself in a proceeding in which his impartiality
      might reasonably be questioned, including but not limited to instances
      where he has a personal bias or prejudice concerning a party. Mann v.
      State, 154 Ga. App. 677(1), 

Not only was the bare mention of the word “confrontation” buried in a paragraph

addressing judicial bias, but French cited only Ellison v. State, 

(Ga. App. Ct. 1990), which only discusses Georgia’s specific procedure for

admitting evidence of prior false allegations. 

Similarly, in an entirely

separate part of his state habeas petition, French referenced the Sixth Amendment

in a passing citation, tacking it onto his general assertion that “counsel must make

an effort to investigate the obvious.” These bare statements and authority would

not have alerted the state habeas court to the particular claims French now

advances. Because French did not fairly present these claims to the state habeas

court, they are not exhausted and are now procedurally barred. French has not


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attempted to show cause and prejudice to excuse this procedural bar. Accordingly,

we cannot consider these claims on appeal.

                                    VI. CONCLUSION

       In sum, although we conclude that the attorney’s performance was deficient,

we cannot conclude that French has overcome the § 2254(d)(1) deference we owe

to the state habeas court’s holding that French failed to surmount the prejudice

prong of Strickland. Thus, French is not entitled to relief on this ineffective

assistance of counsel claim. Because French has not satisfied his burden under §

2254(d)(1) on the record before the state habeas court, his motion to supplement

the record or, alternatively, for a limited remand, is denied. Finally, French’s

Confrontation Clause claims are procedurally barred. For the foregoing reasons, 8

the judgment of the district court is

       AFFIRMED.




8
       Any other claims asserted by French on appeal to us are rejected without need for further
discussion.



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MARTIN, Circuit Judge, concurring:

      This is the kind of case that keeps me up at night. I have a real question,

based on the record I have reviewed here, about whether Eugene French actually

committed the awful crime for which he is now imprisoned. And every member of

this panel agrees that there were problems with the process that resulted in his

conviction. To begin, his trial lawyer was ineffective. See Panel Op. 15. At trial,

that lawyer tried to introduce evidence that Mr. French’s alleged molestation

victim previously and falsely accused Mr. French of kidnapping her. That

evidence was vital to raising doubts about the credibility of the victim—the State’s

star witness—and it should have been admitted under Georgia’s evidentiary rules.

The trial court made a mistake when it excluded that evidence, and Mr. French’s

lawyer was ineffective in his efforts to preserve the issue for appeal. Yet because

of the myriad procedural hurdles that exist in Georgia and federal courts on post-

conviction review, we cannot address the merits of Mr. French’s case.

      At bottom, the outcome of this appeal turns on whether we can consider a set

of affidavits describing the victim’s earlier false accusation against Mr. French.

For instance, in an affidavit Mr. French tried to file on state and federal habeas

review, the victim’s aunt (sister of the victim’s mother) testified that the victim

was repeatedly told by her mother to fabricate charges against Mr. French.

According to that aunt, on the same night the victim first accused Mr. French of


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molestation, the victim called 911 from Mr. French’s home and falsely alleged that

Mr. French had kidnapped her. Once police arrived, the victim told them her

mother had directed her to make the call. Once they left, the aunt claims that the

victim said “her mother forced her to make the false allegation of kidnapping to the

police,” that “her mother persistently compelled her to say that [Mr. French]

molested her,” and that the victim “denied being molested by [Mr. French] at any

time and said her mother was doing this because [the mother] wanted money from

[Mr. French].” This evidence could only have served to undermine the State’s

case.

        Notwithstanding the obvious relevance and import of these affidavits to

showing the prejudice caused by counsel’s ineffectiveness, however, the affidavits

did not make it into the state habeas record. Following his direct appeal, Mr.

French filed a handwritten, pro se petition. State law does not entitle him to be

represented by counsel in his habeas action. See Gibson v. Turpin, 

, 187 (Ga. 1999). But the petition he wrote and filed claimed—correctly, as

today’s majority has found—that he received ineffective assistance of counsel. In

light of his complete lack of legal training, Mr. French was an extraordinary

advocate for himself, except that he made one minor, but now decisive, error. At

the evidentiary hearing before the state habeas court, Mr. French tried on his own

to introduce the affidavits detailing the victim’s false kidnapping claim. The State


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objected to Mr. French’s submission, arguing that he failed to serve the affidavits

on the state prior to the hearing as required by O.C.G.A. § 9-14-48(c). The state

habeas court—correctly, I think—told Mr. French that he could not cure these

notice problems with any further submissions. Thus, although he made the claim

that his counsel was ineffective for failing to proffer evidence of the prior false

accusation at trial, Mr. French did not get the actual evidence of the accusation into

the state habeas record.

      That seemingly insignificant procedural error has now metastasized into a

roadblock prohibiting all federal habeas relief. After all, “review under

§ 2254(d)(1) is limited to the record that was before the state court that adjudicated

the claim on the merits.” Cullen v. Pinholster, 563 U.S. ___, ___, 

,

1398 (2011). And we cannot question the state habeas court’s application of § 9-

14-48(c) to prevent Mr. French’s good-faith attempt to enter the affidavits into the

state habeas record. See Agan v. Vaughn, 

, 1549 (11th Cir. 1997)

(“[S]tate courts are the final arbiters of state law.”). Our hands are therefore tied

by procedure and we must turn a blind eye to the merits of the case.

      Although the majority is right on the law, the result is troubling. It is an

“obvious truth” that “any person haled into court, who is too poor to hire a lawyer,

cannot be assured a fair trial unless counsel is provided for him.” Gideon v.

Wainwright, 

, 344, 

, 796 (1963). So too is every


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criminal defendant assured counsel at his “first appeal, [when] granted as a matter

of right to rich and poor alike, from a criminal conviction.” Douglas v. California,

, 356, 

, 816 (1963) (citation omitted). But on collateral

review—the first time a prisoner can challenge his counsel’s ineffectiveness 1—it is

commonplace and accepted that he must proceed without counsel. Thus, many fail

to put forth coherent or colorable claims at all. Even when a petitioner is

uncommonly skilled like Mr. French, it is still no wonder that he missed one of the

scores of procedural rules that can stand as impediments to relief. Of course I

recognize that these impediments serve purposes. § 9-14-48(c) for instance is

intended to prevent parties from springing affidavits on opposing parties without

advance notice. My quarrel is not with the rule itself, but with our insistence that

petitioners know and follow each and every rule without any legal assistance in

their efforts to obtain relief on even the most persuasive claim.

       Finally, being a lifelong citizen of the State of Georgia, I like to think of my

State as striving to be on the right side of truth and justice. But from the pretrial

hearing nine years ago to this appeal today, the State has sought to exclude the

evidence of Mr. French’s victim’s prior false allegations against him. And to what

1
       “Because an attorney cannot reasonably be expected to assert or argue his or her own
ineffectiveness, claims of ineffective assistance of counsel are often properly raised for the first
time in a habeas corpus petition.” White v. Kelso, 

, 734 (Ga. 1991).




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end? Those affidavits are a critical part of the story undergirding this prosecution.

The State—in its search for the correct outcome, not merely a successful

conviction—should want that evidence aired in court. But without any judge or

jury having considered what the testimony contained in the affidavits means about

whether Mr. French is guilty or innocent, I continue to have doubts about whether

he committed the crimes of which he was convicted and for which he is serving a

twenty-year sentence. In the end, however, Mr. French’s case is decided by our

precedent, so I concur in the panel’s opinion.




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