Case: 13-13192   Date Filed: 06/13/2014   Page: 1 of 11


                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13192
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:09-cv-00177-MP-GRJ


MARCUS ISOM,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                       ________________________

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

                              (June 13, 2014)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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      Marcus Isom is a Florida prison inmate serving a life sentence for murder

and thirty years for conspiracy to commit first-degree murder.1 He was convicted

of these offenses in August 2002, following a jury trial. After his convictions and

sentences were affirmed on direct appeal, Isom v. State, 

(Fla. 1st

DCA 2003) (Table), and the District Court of Appeal affirmed the trial court’s

denial of his post-conviction motion to set aside his convictions, 2 Isom v. State,

(Fla. 1st DCA 2008) (Table), he petitioned the United States

District Court for the Northern District of Florida for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The District Court denied his petition. He appealed,

and this court issued a certificate of appealability (“COA”), see 28 U.S.C. §

2253(c), on one issue:


      Whether the state court unreasonably applied clearly established
      federal law, as established by the Supreme Court, in determining that
      Isom failed to establish prejudice with regard to his claim that his trial
      counsel misadvised him concerning his right to testify.

      We commence our discussion of this issue by summarizing the facts the

evidence established at Isom’s murder trial. Then, after setting out the standards

that govern our review of the state court’s decision rejecting the claim stated in the

COA, we determine whether the state court unreasonably applied clearly

      1
          Isom was convicted of these offenses in August 2002. His sentences are concurrent.
      2
          See Fla. R. Crim. P. 3.850
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established Supreme Court precedent as Isom contends. At the end of the day, we

conclude that the state court did not.

                                              I.

       The District Court, in denying habeas relief, adopted the Magistrate Judge’s

recitation of the facts established at Isom’s trial. 3

               In the early morning hours of December 9, 2001, Lemuel
       “Lem” Larkin was shot and killed outside a nightclub in Archer,
       Florida. Larkin’s girlfriend, Mary Edwards, testified that she was
       with Larkin at the time of his death. Larkin went outside to go to the
       bathroom, she followed him, and as she was walking toward him saw
       a man with a gun run up to the building. Edwards heard a gunshot
       and saw Larkin fall to the ground. Larkin died from a single gunshot
       wound to the head. Edwards viewed two photo lineups but was
       unable to identify the shooter. Another witness, Kevin Patterson,
       testified that he heard the gunshot and saw a man run from the rear of
       the building. Patterson viewed a photo lineup and identified Truth
       Miller as the man he saw running from the nightclub. Another
       witness, Pamela Curtis, also heard the gunshot and saw a tall, slender,
       dark-skinned man running down the road. Truth Miller was described
       by a key witness for the state as being tall, slender, and black.

               The state’s key witness in the case was Victor Smith, who
       testified pursuant to an agreement with the state. Smith testified that
       he was friends with Larkin, sold drugs for Petitioner, and was
       acquainted with Miller. As part of his dealings with Petitioner, Smith
       held money for Petitioner–proceeds from drug sales. In December
       2001, Smith staged a break-in at his apartment to steal Petitioner’s
       money, approximately $15,000. Smith had a friend take the money,
       reported a burglary to police, and told Petitioner that someone had
       stolen the $15,000. Petitioner suggested that Smith go to Georgia to

       3
        The District Court referred Isom’s petition to a Magistrate Judge, who issued a Report
and Recommendation recommending that the District Court deny the petition.
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      ask a spiritual adviser named “The Root Man” who stole the money.
      Smith saw The Root Man the same day. The Root Man said that
      Smith’s ex-girlfriend’s brother took the money. Smith’s ex-girlfriend
      had two brothers–Lem Larkin and Tony Larkin. Smith told Petitioner
      he didn’t believe The Root Man and did not believe Lem Larkin
      would break into his house. The next day, Petitioner and Truth Miller
      came from Orlando to Smith’s apartment in Gainesville. There, they
      contacted Miss Cleo’s psychic hotline for a description of the
      “burglar.” The psychic described the person as light-skinned, 5' 6",
      with a facial disfigurement. The description matched Lem Larkin,
      who had a glass eye. Later that day, Petitioner himself drove to
      Valdosta to see The Root Man. The Root Man told Petitioner that
      Smith’s ex-girlfriend’s brother broke into the house. When Petitioner
      returned from Georgia, he, Smith, and Truth Miller left in
             Petitioner’s rental car to look for Lem Larkin. They eventually
      spotted him walking outside a nightclub in Archer. Petitioner had a
      gun under a towel in the front seat, handed the gun to Truth Miller
      (who was in the passenger seat), and told Miller “to get him.” Miller
      went behind the building and shot Larkin. Petitioner, Miller, and
      Smith drove away from the nightclub and to a lake, where Miller
      threw the .357 revolver. A dive team later searched the lake but did
      not recover the weapon. Truth Miller eventually became a suspect in
      the murder. However, before his arrest warrant could be served, he
      was found dead, less than a week after Lem Larkin’s death.
            The defense’s theory of the case was that Victor Smith’s
      testimony was not credible because he himself had motive to kill Lem
      Larkin, he received a suspended sentence for his testimony, and he
      had previously lied to authorities about what happened. The defense
      maintained that while Petitioner did come to Gainesville to talk to
      Lem Larkin about the burglary, he spent the night in a hotel room and
      was there at the time of the murder.
Doc. 45 at 2–4 (footnotes omitted).

                                        II.


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       The claim giving rise to the COA is Isom’s argument that his trial counsel

rendered ineffective assistance of counsel—and thus denied him his Sixth

Amendment right to the effective assistance—regarding his desire to testify in his

own defense at trial.4 Isom contends that he wanted to testify, but that counsel

erroneously told him that if he did, the State could inform the jury of the specific

nature of his prior convictions, including a prior murder conviction. Doc. 45 at 41.

Isom presented this claim to the state trial court in a motion filed under Fla. R.

Crim. P. 3.850.

       In his motion, Isom informed the trial court that this is the testimony he

would have given had his attorney called him to the witness stand:

             I would have testified that I did not participate in the murder of
       Lemuel Larkin and remained at the hotel all that night (from at least
       11:00 PM until the following morning) with Quanesha Holland. I
       would have testified my only intent, which I had been insistent on
       with Victor Smith, was to speak with Lemuel Larkin to ascertain
       whether or not Victor Smith had himself been involved in the
       burglary/theft of my money and that I had no intentions or designs of
       harming any person. I would also have informed the jury that since I
       was a convicted felon, upon learning from Victor Smith the next
       morning when he brought our car back to the hotel that Lemuel Larkin
       had been shot, I returned to Orlando because I was afraid of being

       4
          The Sixth Amendment, which has been made applicable to the States, see Gideon v.
Wainwright, 

, 345, 

, 797, 

(1963), states, in pertinent
part, “In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his
defence,” U.S. Const. amend. VI. The “Assistance of Counsel” means the “effective” assistance
of counsel. See, e.g., Strickland v. Washington, 

, 687, 

, 2064, 

(1984

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       accused of being involved since I had been looking for Larkin the
       previous day.

       In deciding whether Isom’s attorney had denied him the effective assistance

of counsel, the state trial court applied the two-pronged test for ineffective

assistance of counsel established by Strickland v. Washington, 

, 

, 

(1984). To prevail on his ineffective assistance claim,

Isom had to demonstrate: (1) that his counsel’s performance was deficient, i.e., the

performance fell below an objective standard of reasonableness; and (2) that he

suffered prejudice as a result of that deficient performance. 

–88, 104 S. Ct. at 2064–65. To establish prejudice under Strickland, “[i]t is

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

on the outcome of the 

, 104 S. Ct. at 2067. Rather,

“[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. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” 

104 S. Ct. at 2068. The trial court assumed

for sake of argument that Isom established Strickland’s first prong, and, moving to

the second prong, found that Isom had failed to show the requisite prejudice. The

trial court explained why Isom had failed to establish prejudice, thusly:
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        Defendant alleges that, had he taken the stand, he would have
testified to the Defendant alleges that, had he taken the stand, he
would have testified to the following: (1) he "did not participate in the
murder of Lemuel Larkin [the victim]""; (2) on the day before the
murder, he was looking for the victim, but only" to ascertain whether
or not Victor Smith had himself been involved in the burglary/theft
of[his] money"; (3) he had "no intentions or designs of harming any
person"; (4) he remained in his motel room "from at least 11:00 p.m."
the night before the murder "until the following morning" with
Quanesha Holland; and, (5) "since [Defendant is] a convicted felon,
upon learning from Victor Smith the next morning[,] when he brought
[their] car back to the hotel[,] that Lemuel Larkin had been shot,
[Defendant] returned to Orlando because [he] was afraid of being
accused of being involved since [he] had been looking for Larkin the
previous day." With the exception of point #5, Defendant's proposed
testimony is essentially defense counsel's closing argument to the jury.
        When weighed against the testimony actually presented at trial,
Defendant's proposed testimony does not create a reasonability
probability that the outcome of the proceeding would have been different.
First, the testimony of Victor Smith, as described in ground (VI)
above, places Defendant at the crime scene directing Truth Miller to kill
the victim. Second, Truth Miller was identified by witnesses as the
person who shot the victim. Third, it is undisputed that Defendant was
looking for the victim before the murder. The testimony at trial reflects
that Defendant was looking for the victim between 10:00 p.m. and
11:00 p.m. on the night of Saturday, December 8, 2001. The murder
occurred at, approximately, 2:00 a.m. on Sunday, December 9, 2001,
which is only a few hours after Defendant started looking for the
victim. Fourth, it is undisputed that Truth Miller came to Gainesville
from Orlando with Defendant. Finally, it is undisputed that Defendant
left Gainesville and returned to Orlando within hours after the
murder.

      In summary, the sole issue that the jury had to decide was
whether or not they believed the testimony of Victor Smith: Victor
Smith was the only witness at trial who could place Defendant at the
crime scene; Victor Smith himself had an apparent motive to kill the
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      victim (to cover up Smith's theft of Defendant's money); Victor Smith
      had a motive to lie at the trial (he received a sentence reduction in
      exchange for his testimony); and, most importantly, Victor Smith told
      Defendant that the victim was the person who stole Defendant's
      money, which was the catalyst for Defendant's search for the victim
      (and use of two psychics for confirmation). All of these facts, which
      weigh heavily in Defendant's favor, were known to the jury when they
      found Defendant guilty of first-degree murder and conspiracy to
      commit first-degree murder.
             Defendant's proposed testimony contradicts, but does not refute,
      Victor Smith's claim that Defendant was at the scene ofthe murder. It
      does not refute the fact that Defendant drove from Orlando to-
      Gainesville, for the purpose ofconfronting the victim about his stolen
      money, with the person (Truth Miller) who, ultimately, shot the
      victim. It does not refute the fact that Defendant was actively looking
      for the victim mere hours before the murder, as well as telling the
      victim's family that the victim had better give him his money by
      moming. It does not refute the fact that Defendant left Gainesyille,
      and returned to Orlando, mere hours after the murder. Furthermore,
      according to trial counsel's testimony during a prior evidentiary
      hearing, Quanesha Holland (Defendant's alleged alibi witness) could
      not support Defendant's claim that he was with her in the motel room
      between 11 :00 p.m. on Saturday and 8:00 a.m. on Sunday. Had
      Defendant testified as he alleges, there is not a reasonable probability
      that the outcome would have been different. This claim is without
      merit.
Doc. 14-31, at 33–35 (record citations omitted). As noted above, the trial

court’s Rule 3.850 decision was affirmed on appeal. 

.

                                          III.


      A federal court may only grant habeas relief on a claim previously

adjudicated in state court if the adjudication: (1) resulted in a decision that was
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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 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 explained the meaning of some of the phrases

contained in §§ 2254(d)(1) and (2). In § 2254 (d)(1), the phrase “clearly

established Federal law” refers only to “the holdings, as opposed to the dicta, of

[the Supreme] Court’s decisions as of the time of the relevant state-court decision.”

Williams v. Taylor, 

, 412, 

, 1523, 

(2000). A state court decision is “contrary to” a Supreme Court holding “if the

state court (1) arrives at a conclusion opposite to that reached by [the Supreme]

Court on a question of law or (2) decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.” 

120 S. Ct.

at 1523. A state court decision “involve[s] an unreasonable application of” a

Supreme Court holding “if the state court identifies the correct governing legal

principle from [the] Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case.” 

120 S. Ct. at 1523. Merely incorrect

application of federal law, however, is not enough to warrant habeas relief.

Instead, “[a] state court’s determination that a claim lacks merit precludes federal

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habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the

state court’s decision.” Harrington v. Richter, ___U.S. ___, ___, 

,

786, 

(2011) (quoting Yarborough v. Alvarado, 

,

664, 

, 2149, 

(2004)).

      In deciding whether the state court decision is based on an unreasonable

determination of the facts in light of the evidence presented in the state court, we

must indulge the presumption that the state court’s findings of fact are correct. 28

U.S.C. § 2254(e)(1).


                                          IV.

      Isom argues that the state court’s decision rejecting his ineffective assistance

claim constituted an unreasonable application of Strickland. We are not persuaded.

A review of the transcript of Isom’s trial reveals, first, that had Isom testified as

proposed, his testimony would have been contradicted by the testimony of the

State’s witnesses. Next, had Isom testified, he would have been subject to

cross-examination, which would have potentially undermined any persuasive value

his testimony on direct examination may have had. Further, his attorney presented

to the jury in closing argument the points Isom’s testimony would have covered.

In fact, his proposed testimony mirrored his attorney’s closing argument to the

jury. In sum, it was not objectively unreasonable for the state trial court to
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conclude that, had Isom testified as proposed, the outcome of his trial would not

have been different. See 

. Accordingly, the district court

did not err in denying Isom’s § 2254 petition.

      AFFIRMED.




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