ORDER

STEVEN D. MERRYDAY, District Judge.

Warren Reed Tensley petitions for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) and challenges the validity of his state convictions for sale or delivery of cocaine and possession of cocaine. Tensley alleges three grounds of trial court error and three grounds of ineffective assistance of trial counsel. Numerous exhibits ("Respondent's Exhibit ___") support the response. (Doc. 8)

I. EXHAUSTION AND PROCEDURAL BAR

Grounds One, Five, and Six

In ground one Tensley contends that the trial judge committed fundamental error and violated the prohibition against double jeopardy by instructing the jury on both possession of cocaine and possession with intent to sell the same quantity of cocaine. Tensley raised this issue on direct appeal but argued a violation of state law — not federal law — and cited only state cases. In ground five Tensley contends (1) that the trial judge committed an ex post facto violation "by using [a] new standard jury instruction on principals, which enabled the state to establish guilt without proving two elements contained in the standard instruction in effect when [Tensley]'s alleged crime[s] w[ere] committed," (2) that the trial judge violated Tensley's due process right by giving the newer principal instruction and, (3) by not instructing the jury on either the law of "controlled buys" or the defense of entrapment. In ground six Tensley relies on Shelton v. Fla. Sec'y, Dep't of Corr., 802 F.Supp.2d 1289 (M.D. Fla. 2011), to challenge the federal constitutionality of Section 893.13, Florida Statutes.1 Tensely presented neither ground five nor ground six to the state court on direct appeal or in a post-conviction motion. The respondent argues that grounds one, five, and six are procedurally barred from federal review.

The failure to present a federal claim to the state court renders the claim unexhausted. Under 28 U.S.C. § 2254(b)(1)(A) and (b)(1)(C), before a federal court may grant habeas relief, a federal habeas petitioner must exhaust every available state court remedy for challenging his conviction, either on direct appeal or in a state post-conviction motion. "[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.") (citations omitted). To exhaust a claim, a petitioner must present the state court with the particular legal basis for relief in addition to the facts supporting the claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the state prisoner `fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its prisoners' federal rights.'") (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).

The requirement that a federal habeas corpus petitioner exhaust available state court remedies as a prerequisite to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state court and alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971). A petitioner may raise a federal claim in state court "by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such claim on federal grounds, or by simply labeling the claim `federal.'" Baldwin v. Reese, 541 U.S. 27, 32 (2004). A petitioner must "do more than scatter some makeshift needles in the haystack of the state court record." McNair v. Campbell, 416 F.3d 1291, 1302-03 (11th Cir. 2005) (quotations and citations omitted).

Tensley's failure to present to the state court the federal claims alleged in grounds one, five, and six deprived the state court of a "full and fair opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Boerckel, 526 U.S. at 845. See also Anderson v. Harless, 459 U.S. 4, 5-6 (1982) ("It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made."). Consequently, the exhaustion requirement remains unsatisfied, Henry, 513 U.S. at 365, rendering grounds one, five, and six procedurally defaulted.

Under the procedural default doctrine, "[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner "must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimension. United States v. Frady, 456 U.S. 152 (1982). In other words, a petition must show at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892.

Without a showing of cause or prejudice, a petitioner may obtain federal habeas review of a procedurally defaulted claim only if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Murray v. Carrier, 477 U.S. 478, 495-96 (1986). A fundamental miscarriage of justice occurs in an extraordinary case if a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception requires a petitioner's "actual" innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of acquittal absent the constitutional error. Schlup, 513 U.S. at 327.

Tensley fails to demonstrate cause and prejudice excusing the default of each federal claim. Carpenter, 529 U.S. at 451; Carrier, 477 U.S. at 495-96. He neither alleges nor shows that the fundamental miscarriage of justice exception applies. Henderson, 353 F.3d at 892. Because Tensley fails to proffer specific facts showing an exception to procedural default, grounds one,2 five, and six are procedurally barred from federal review.

II. MERITS

Tensley's remaining grounds are exhausted and entitled to review on the merits.

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court review of a state court adjudication, states in pertinent part:

In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 526 U.S. 86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that we are to decide."). The phrase "clearly established Federal law" encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Cone, 535 U.S. at 693. A federal court must afford due deference to a state court's decision. "AEDPA prevents defendants — and federal courts — from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559 U.S. 766 (2010). See also Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011) ("This is a `difficult to meet,' . . . and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt'. . . .") (citations omitted).

In a per curiam decision without a written opinion the state appellate court on direct appeal affirmed Tensley's convictions and sentences. (Respondent's Exhibit 5) The state appellate court's per curiam affirmance warrants deference under Section 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 131 S. Ct. at 784-85 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.").

Review of the state court decision is limited to the record that was before the state court.

Pinholster, 131 S. Ct. at 1398. Tensley bears the burden of overcoming by clear and convincing evidence a state court factual determination. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001).

Standard for Ineffective Assistance of Counsel

Tensley claims ineffective assistance of counsel, a difficult claim to sustain. "[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:

Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).

Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." 466 U.S. at 690. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 466 U.S. at 690.

Tensley must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S. at 691-92. To meet this burden, Tensley must show "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." 466 U.S. at 694.

Strickland cautions that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." 466 U.S. at 690-91. Tensley cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. . . . [T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no duty to raise a frivolous claim).

Tensley must prove that the state court's decision was "(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States 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. § 2254(d). Sustaining a claim of ineffective assistance of counsel is very difficult because "[t]he standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Richter, 131 S. Ct. at 788. See also Pinholster, 131 S. Ct. at 1410 (A petitioner must overcome this "`doubly deferential' standard of Strickland and the AEDPA."), and Johnson v. Sec'y, Dep't of Corr., 643 F.3d 907, 911 (11th Cir. 2011) ("Double deference is doubly difficult for a petitioner to overcome, and 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.").

Ground Two

Prosecutor Scott Rosenwasser represented the state in Tensley's case. During voir dire, venireman Julia King disclosed that she was an administrator at a local law firm and may have previously spoken to Rosenwasser by telephone in the course of her employment (Respondent's Exhibit 1, Vol. II, pp. 27-28, 34, 56-59):

After voir dire concluded, both attorneys exercised for-cause challenges and peremptory challenges resulting in the selection of five jurors. After further discussion between the trial judge and counsel,3 the final juror was selected.

Tensley alleges that "[a]fter [King] stated that she and the prosecutor had, in fact, spoken, [counsel]4 failed to object or move for a mistrial" and "failed to request a new jury panel." (Doc. 5, p. 8) Tensley claims that counsel's errors resulted in a denial of his right to a fair trial.

The state post-conviction court rejected this claim in Tensley's Rule 3.850 motion:

(Respondent's Exhibit 13, p. 3) (court's record citations omitted)

"The constitutional standard of fairness requires that the criminally accused have a panel of impartial, indifferent jurors." Murphy v. Fla., 421 U.S. 794, 799 (1975). "The purpose of voir dire is to ascertain whether potential jurors can render a verdict solely on the basis of evidence presented and the charge of the trial court." Wilcox v. Ford, 813 F.2d 1140, 1150 (11th Cir. 1987). See also J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 143-44 (1994) ("Voir dire provides a means of discovering actual or implied bias and a firmer basis upon which the parties may exercise their peremptory challenges intelligently."); Mu'Min v. Va., 500 U.S. 415, 431 (1991) ("Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges."). "Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored." Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981).

Effective assistance of counsel is required during voir dire. Brown v. Jones, 255 F.3d 1273, 1278-79 (11th Cir. 2001). Counsel's questions and tactics during voir dire are a matter of trial strategy. Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001). "A decision regarding trial tactics cannot be the basis for a claim of ineffective assistance of counsel unless counsel's tactics are shown to be `so ill chosen that it permeates the entire trial with obvious unfairness.'" Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995). Because empaneled jurors are presumed impartial, see Smith v. Phillips, 455 U.S. 209, 215 (1982), to satisfy Strickland's prejudice requirement Tensley must show that the juror selection process produced a juror that was actually biased against him. Hughes, 258 F.3d at 458. See also Rogers v. McMullen, 673 F.2d 1185, 1189 (11th Cir. 1982) (finding no violation of a defendant's Sixth Amendment right to a fair and impartial jury absent a showing that a jury member hearing the case was actually biased against him).

Tensley fails to cite any record evidence establishing that King lacked the ability to be fair and impartial at trial. Tensely neither shows actual bias nor establishes that, if trial counsel had successfully stricken King, the outcome of the trial would have been different. Strickland, 466 U.S. at 694. Tensley fails to establish that the state post-conviction court either unreasonably applied Strickland or unreasonably determined the facts in rejecting ground two.5 28 U.S.C. § 2254(d)(1), (2).

Ground Three

The prosecutor introduced into evidence at trial two aerial photographs of the location of the drug transaction. (Respondent's Exhibit 1, Vol. III, pp. 126-27) Trial counsel raised no objection. Tensley contends that his trial counsel rendered ineffective assistance by not challenging the admission of the photographs.

The state post-conviction court rejected this ground in Tensley's Rule 3.850 motion:

(Respondent's Exhibit 13, pp. 3-4) (court's record citation omitted)

While Tensley's ineffective assistance of counsel claim is of federal constitutional dimension, the basis for the claim is a challenge to the admissibility of evidence under state evidentiary rules. Both the state post-conviction court in rejecting Tensley's ground of ineffective assistance of counsel and the state district court of appeal in affirming that rejection have answered the question of what would have happened if counsel had objected at trial to the admission of the photographs. The state courts' interpretation of state law is afforded deference. See Will v. Sec'y, Dep't of Corr., 278 Fed. App'x 902, 908 (11th Cir. 2008)6 ("Although an ineffective assistance of counsel claim is a federal constitutional claim, which we consider in light of the clearly established rules of Strickland, when `the validity of the claim that [counsel] failed to assert is clearly a question of state law, . . . we must defer to the state's construction of its own law.'") (citing Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)); Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) ("The Florida Supreme Court already has told us how the issues would have been resolved under state law had [petitioner's counsel] done what [petitioner] argues he should have done. . . . It is a `fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.'") (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)); Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) ("[T]he Alabama Court of Criminal Appeals has already answered the question of what would have happened had [petitioner's counsel] objected to the introduction of [petitioner's] statements based on [state law] — the objection would have been overruled. . . . Therefore, [petitioner's counsel] was not ineffective for failing to make that objection."). Because the photographs were admissible under state evidentiary rules, Tensley establishes neither deficient performance nor resulting prejudice from counsel's alleged error. Strickland, 466 U.S. at 691-92. Tensley fails to meet his burden of proving that the state court unreasonably applied controlling Supreme Court precedent or unreasonably determined the facts in rejecting this ground. 28 U.S.C. § 2254(d)(1), (2).

Ground Four

Tensley contends that his trial counsel rendered ineffective assistance by not objecting during the prosecutor's rebuttal closing argument when the prosecutor repeatedly implored the jury to use "common sense" in evaluating the case.7 The state post-conviction court rejected8 this ground in Tensley's Rule 3.850 motion because the record shows that counsel did, in fact, object during the prosecutor's rebuttal argument. (Respondent's Exhibit 1, Vol. III, pp. 207-08) Tensley acknowledges in his memorandum of law (Doc. 5, p. 12) "that counsel objected but was overruled." Consequently, he satisfies neither Strickland's deficient performance requirement nor Strickland's prejudice requirement to support a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 691-92. The state post-conviction court neither unreasonably applied Strickland nor unreasonably determined the facts in rejecting this ground.9

Accordingly, Tensley's petition for the writ of habeas corpus (Doc. 1) is DENIED. The clerk must enter a judgment against Tensley and close this action.

DENIAL OF BOTH A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS

Tensley is not entitled to a certificate of appealability ("COA"). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a COA, Aumuller must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Because he fails to show that reasonable jurists would debate either the merits of the claims or the procedural issues, Tensley is entitled to neither a certificate of appealability nor an appeal in forma pauperis.

Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Tensley must obtain permission from the circuit court to appeal in forma pauperis.

ORDERED.