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                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-12526
                          Non-Argument Calendar
                        ________________________

                  D.C. Docket No. 3:12-cv-00326-LC-CJK

DANA G. SMITH,


                                                         Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,


                                                        Respondent-Appellee.

                        ________________________

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

                            (September 9, 2015)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Dana Smith, a Florida state prisoner proceeding pro se, appeals from the

district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. Smith sought federal habeas corpus relief based on alleged ineffective

assistance of his state trial counsel for failing to seek admission of exculpatory

evidence. After careful review, we affirm.

                                        I.

      Smith was arrested and indicted in 2007 for the murder of his half-brother.

He was tried by a jury in March 2009. At trial, three eyewitnesses testified that

Smith came to the carport of the victim’s home, where the victim and the witnesses

were talking and drinking, early in the morning hours of August 10, 2007. Smith,

who was drinking from a clear plastic cup, greeted everyone, and the conversation

continued. At some point, the victim told Smith that “his girl” had been calling

and that she wanted Smith to “get his butt home.” Smith pulled out a gun and shot

the victim. He then walked away towards his car, which he parked two houses

down from the victim’s home.

      Smith was found guilty and convicted of first-degree premeditated murder.

He was sentenced to life imprisonment without the possibility of parole. His

conviction was affirmed on direct appeal, and he then moved for post-conviction

relief under Rule 3.850, Fla. R. Crim. P., alleging that his trial counsel was




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constitutionally ineffective for failing to admit as evidence the negative results of a

gunshot-residue test performed on him after the shooting.

      The state court denied Smith’s Rule 3.850 motion without holding an

evidentiary hearing. The court stated that the gunshot-residue test results would

not have proven his innocence because he testified at trial that he took a bath on

the night of the shooting, so any residue would have “washed away in the bath.”

Further, the court stated, the state persuasively commented at trial that, because

Smith, the victim, and the witnesses were all in close proximity at the time of the

shooting, the test results would not have been probative. The court concluded,

             [I]f counsel would have presented evidence that a
             gunshot residue test was performed on Defendant with
             negative results as he alleges, it would not have changed
             the outcome of the proceedings. The record reflects that
             defense counsel was aware of the gunshot residue tests
             performed on the witnesses, and the Court concludes that
             it is likely that counsel chose not to highlight the test
             allegedly performed on Defendant because it was not
             probative. This would have been a reasonable decision
             within counsel’s professional judgment. As counsel was
             not deficient, and Defendant was not prejudiced by any
             inaction on counsel’s part, Defendant is not entitled to
             relief.

The state court of appeals summarily affirmed the denial of his Rule 3.850 motion.

      Smith then pursued habeas relief in federal courts under § 2254. In his

§ 2254 petition, Smith again contended that his trial counsel was ineffective for

failing to admit the gunshot residue test results, and he argued that the state court’s


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denial of his Rule 3.850 motion was based on a misunderstanding of the trial

testimony. A magistrate judge found that the state court’s determinations were not

unreasonable and recommended that Smith’s § 2254 petition be denied. Over

Smith’s     objections,   the   district   court   adopted   the   magistrate   judge’s

recommendation, denied Smith’s § 2254 petition, and denied a certificate of

appealability (“COA”).

      Smith now brings this appeal, for which a judge of this Court issued the

following COA: “Whether the state court unreasonably applied Strickland v.

Washington, 

, 

, 

(1984), or made

unreasonable findings of fact in its conclusion that defense counsel was not

ineffective for failing to move to admit evidence of the gunshot residue test

results.”

                                            II.

      On appeal from a district court’s denial of habeas relief, we review questions

of law and mixed questions of law and fact de novo, and we review findings of fact

for clear error. Burgess v. Comm’r, Ala. Dep’t of Corr., 

, 1315 (11th

Cir. 2013). Whether counsel is constitutionally ineffective is a mixed question of

law and fact reviewed de novo. Ward v. Hall, 

, 1155 (11th Cir.

2010).

                                           III.


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      Because Smith filed his § 2254 petition after April 1996, this case is

governed by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA’”). Under the AEDPA, we may not grant federal habeas relief on

claims that were previously “adjudicated on the merits in State court proceedings”

unless the state court’s decision (1) “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) “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). In short, under the AEDPA, we “ordinarily defer to both the

state court’s legal and factual determinations.” Jones v. Walker, 

,

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

      But “this Court is not bound to defer to unreasonably-found facts or to the

legal conclusions that flow from them.” 

n.5. Where a petitioner can

meet the requirement of § 2254(d)(2) by showing that the state’s decision was

based on an unreasonable factual determination, we will review the petitioner’s

claim de novo, without deference to the state court’s decision. 

& n.5;

see Cooper v. Sec’y, Dep’t of Corr., 

, 1353 (11th Cir. 2011) (“When

a state court unreasonably determines the facts relevant to a claim, we do not owe

the state court’s findings deference under AEDPA, and we apply the pre-AEDPA

de novo standard of review to the habeas claim.” (internal quotation marks


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omitted)). A state court’s determination of the facts is unreasonable only if no

fairminded jurist could agree with the determination. Lee v. Comm’r, Ala. Dep’t of

Corr., 

, 1192 (11th Cir. 2013).

       Here, the state court appears to have denied Smith’s claim of ineffective

assistance of counsel based, at least in part, on its finding that Smith showered on

the evening of the shooting, so he would have washed away any gunshot residue.

The testimony the state court references for that contention, however, reflects that

Smith testified that he showered before the time of the shooting. As a result, Smith

contends, the state court’s decision was based on an unreasonable finding of fact.

Assuming that Smith has met his burden of showing that this factual finding was

unreasonable, it is unclear to what extent the state court relied on this finding in

determining that counsel “likely” made a strategic decision in not seeking to admit

evidence of the results of the gunshot-residue test or in concluding that Smith

suffered no prejudice. In any case, even applying de novo review to Smith’s

ineffective-assistance claim, he has not shown that he is entitled to habeas relief

based on counsel’s failure to move to admit the negative gunshot-residue test

results.1 See 

.



       1
          We also note that the state court appears to have applied a standard contrary to
Strickland in assessing Smith’s claim of ineffective assistance. See 

(“A
state court decision is ‘contrary to’ clearly established federal law if it applies a rule that
contradicts the governing law set forth by the United States Supreme Court . . . .”). The state
court stated that if counsel would have admitted the gunshot residue tests it “would not have
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       “Even under de novo review, the standard for judging counsel’s

representation is a most deferential one.” Harrison v. Richter, 

, 105,

, 788 (2011). Under Strickland, Smith must make two showings.

Johnson v. Sec’y, Dep’t of Corr., 

, 928 (11th Cir. 2011). First, he

must show that counsel’s performance was deficient. 

deficient

when it falls “below an objective standard of reasonableness” and is “outside the

wide range of professionally competent assistance.” 

466

U.S. at 688, 

, 2066). Review of counsel’s performance is

“highly deferential,” and we presume “that counsel’s conduct falls within the wide

range of reasonable professional assistance.” 

466 U.S. at

689, 

. To overcome this presumption, Smith must show that no

competent counsel would have taken the same action as his counsel. 

must show prejudice:                He must “show that, but for his

counsel’s deficient performance, there is a reasonable probability that the result of

the proceeding would have been different—that is, our confidence in the outcome

must be undermined by counsel’s deficient performance.” 

“[I]t is

not enough for the defendant to show that the errors had some conceivable effect

on the outcome of the proceeding.” 

, 104 S. Ct. at




changed the outcome of the proceedings,” which is a higher standard than Strickland’s
“reasonable probability” of a different result. See 

, 104 S. Ct. at 2068.
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2067. Likewise, the question under Strickland is not “whether it is possible a

reasonable doubt might have been established if counsel acted differently.”

, 131 S. Ct. at 791. Instead, it must be “reasonably likely”

that the result would have been different. 

at 792. “The likelihood of

a different result must be substantial, not just conceivable.” 

131 S. Ct.

at 792.

       “Because both parts of the test must be satisfied in order to show a violation

of the Sixth Amendment, the court need not address the performance prong if the

defendant cannot meet the prejudice prong, or vice versa.” Holladay v. Haley, 

, 1248 (11th Cir. 2000).

       As both the state court and the federal district court did, we take as true

Smith’s allegations that a gunshot-residue test was performed on him, that the

results were negative, and that counsel was aware of the negative results at the time

of trial. 2   Defense counsel appeared to have pursued two strategies at trial:

(1) highlight the shoddy police investigation into the shooting, including the failure

to take gunshot-residue test on all the witnesses; and (2) argue that Smith was not

present at the time of the shooting and that the witnesses pointed the finger at him

to cover up their own involvement. Not moving to admit the negative gunshot-

       2
         No evidentiary hearing was held in this matter, so we do not have the benefit of
counsel’s testimony on these points. The state contends in its brief that a gunshot-residue test
was taken from Smith, but the results were never analyzed. However, this is not part of the state
record before us, so we do not address this contention.
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residue tests from Smith arguably bolsters the first strategy, but the results also

would have supported Smith’s contention that he was not the shooter. Given that

the first strategy (shoddy investigation) is in service of the second (actually

innocent), we find it difficult to accept that reasonable counsel would, as a matter

of strategy, elect not to introduce exculpatory evidence.

      In any case, even if we assume that counsel’s performance was

constitutionally deficient, Smith is not entitled to relief because he has not

established prejudice. Smith contends that he was prejudiced by counsel’s failure

to introduce evidence of the allegedly negative gunshot-residue test results because

the jury questioned whether there were gunshot-residue tests performed on Smith

and, if so, what the results were. While the jury’s question indicates that the

failure to admit the tests “had some conceivable effect on the outcome of the

proceeding,” 

, 104 S. Ct. at 2067, the prejudice prong of

Strickland requires the petitioner to show that the likelihood of a different result

was “substantial, not just conceivable.” Richter, 562 U.S. at 

.

      We are not persuaded that Smith has met his burden of showing that

counsel’s deficient performance renders the guilty verdict in his case unreliable.

At trial, the State’s evidence included the following: (1) three eyewitnesses who

testified that Smith was the shooter; (2) the testimony of Smith’s cellmate who

stated that Smith admitted shooting the victim and said that the only thing linking


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him to the crime was a cup; (3) a plastic cup recovered from the scene of the

shooting with DNA on it that matched Smith’s; and (4) the testimony of the

victim’s neighbor, who testified that he called 911 when he heard gun shots and

saw Smith’s vehicle pull away from the scene as the police arrived. The gunshot-

residue test, while indirectly supporting Smith’s alibi defense that he was not

present for the shooting, does not directly refute any of this testimony and

evidence. Nor is it apparent that negative test results over six hours after the

shooting would necessarily show that Smith was not the shooter. In addition, the

jury asked two other questions in the same note as the question about the test

results, a fact that indicates that the jury was thoroughly evaluating the evidence,

not that the test results would be dispositive.

      Even if we assume that Smith has shown a “reasonable doubt might have

been established if counsel acted differently,” 

, 131 S. Ct.

at 791, we cannot say that there is a “substantial” likelihood of a different result in

view of the other evidence of Smith’s guilt presented at trial. See id at 

.

      Accordingly, we AFFIRM the denial of Smith’s § 2254 habeas petition.




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