[P U B L IS H ]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILEDU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 12, 2006

N o . 03-16259

THOMAS K. KAHN

CLERK

D . C. Docket No. 02-01103-CV-T-26MSS

JE F F R E Y LEE ATWATER,

Petitioner-Appellant,

versus

JAMES V. CROSBY, JR., Secretary

Florida Department of Corrections,

CHARLIE CRIST, Attorney General

of the State of Florida,

Respondents-Appellees.

A p p e al from the United States District Court

fo r the Middle District of Florida

(J u n e 12, 2006)

B efo re TJOFLAT, BLACK and WILSON, Circuit Judges.

W I L S O N , Circuit Judge: Jeffrey Lee Atwater appeals the district court's denial of his 28U.S.C. § 2 2 5 4 petition challenging his death sentence. We granted a certificate of ap p ea lab ility to consider the following four claims: (1) the state violated Atwater's r ig h ts by striking the sole black juror from the venire; (2) trial counsel were in e f fe ctiv e for conceding guilt on a lesser included offense; (3) trial counsel were in effectiv e for failing to present mitigation evidence at the penalty phase of A tw ater's trial; and (4) trial counsel were ineffective for failing to call Atwater to testify at trial. After review and oral argument, we affirm Atwater's death s en te n c e.

I . Procedural History O n September 7, 1989, Jeffrey Atwater was indicted by a grand jury in P in ellas County, Florida, for the first degree murder and armed robbery of Kenneth S m ith , his aunt's fiancé. At trial, he was convicted of first degree murder and ro b b ery. The jury recommended death by a vote of eleven to one. The trial judge f o u n d three aggravating factors and no statutory mitigating factors, and Atwater w as sentenced to death on June 25, 1990. On direct appeal, the Florida Supreme C o u rt affirmed Atwater's convictions and death sentence. Atwater v. State (A tw a ter I), 626 So. 2d 1325 (Fla. 1993) (per curiam). A tw a te r then filed a petition for writ of certiorari in the United States S u p rem e Court, which was denied. Atwater v. State, 511 U.S. 1046, 114 S. Ct.

1 5 7 8 , 128 L. Ed. 2d 221 (1994). Pursuant to Florida Rule of Criminal Procedure 3 .8 5 0 , Atwater filed a motion for post-conviction relief in the state trial court, raisin g 24 claims. The trial court denied an evidentiary hearing on the penalty p h ase issues and granted an evidentiary hearing on some of the guilt phase issues.

On January 5, 1999, the trial court entered an order denying all claims for relief.

Atwater appealed, and the Florida Supreme Court affirmed the trial court's denial o f post-conviction relief. Atwater v. State (Atwater II), 788 So. 2d 223 (Fla. 2001) (p er curiam).

Atwater then filed a timely original petition for writ of habeas corpus p u r su a n t to 28U.S.C. § 2254 in United States District Court. The district court ad m in istrativ ely closed the case from August 23, 2002, until January 13, 2003, p en d in g decisions in Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002) (per curiam) an d King v. Moore, 831 So. 2d 143 (Fla. 2002) (per curiam), in light of Ring v. A rizo n a , 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). After reo p e n in g the case, the district court denied Atwater's request for an evidentiary h e a rin g and summarily denied the habeas petition in its entirety by Order dated O cto b er 21, 2003. A tw ater then filed a number of post-judgment pleadings in the district court, in clu d in g an application for a certificate of appealability and a motion to hold p ro ceed in g s in abeyance pending exhaustion because he had filed a successive m o tio n for post-conviction relief in the trial court asserting claims for relief under R in g and Nixon v. State, 857 So. 2d 172 (Fla. 2003), rev'd sub nom. Florida v. N ixo n , 543 U.S. 175 , 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004). The district court d en ied all relief on December 17, 2003.

W e granted Atwater's renewed motion to hold proceedings in abeyance on M a rc h 9, 2004. After the state trial court and the Florida Supreme Court denied A tw ater's motion for post-conviction relief based on Ring and Nixon, we reinstated th e case to active status. We then granted Atwater's renewed application for a c er tif ic ate of appealability with regard to the four issues outlined above.

I I. Facts T h e following recitation of facts is taken from the Florida Supreme Court's o p in io n affirming Atwater's conviction and sentence on direct appeal: O n August 11, 1989, Atwater entered the John Knox A p artm en ts in St. Petersburg, Florida, to see Ken Smith, the victim in th i s case. Upon entering the apartment building, Atwater proceeded to Smith's room where he remained for about twenty minutes. After A tw a te r left, Smith's body was discovered in the room. Smith was d ead and his money was missing. Atwater told several people that he h ad killed Smith. ....

. . . [T]he State presented testimony showing that Atwater had o b ta in e d money from Smith on previous occasions, that Smith feared A tw ater, and that, on the day of the murder, Smith told a friend that he w a s not going to give Atwater any more money. Further, there was ev id en ce that Smith had cash in his trousers pocket shortly before the k illin g . When the body was found, the pockets were turned out and th e only money found in the room was a few pennies on the floor.

....

T h e victim in this case was stabbed at least forty times. The sen ten cin g order recites: T h e Court has carefully reviewed the evidence and finds, in fact, that [the heinous, atrocious, or cruel aggravating] facto r does exist beyond a reasonable doubt. In reaching th is conclusion, the Court has considered evidence that th e Defendant killed his sixty-four (64) year old victim b y inflicting nine (9) stab wounds to the back, eleven (1 1 ) incised wounds to the face, six (6) incised wounds to th e neck, one (1) incised wound to the left ear, one (1) i n c i s ed wound to the right shoulder, one (1) incised w o u n d to the right thumb, nine (9) stab wounds to the c h e st area including heart and lungs, two (2) superficial p u n ctu re wounds to the abdomen, a scalp laceration on th e back of the head as a result of blunt trauma, multiple ab rasio n s and contusions about the body, blunt trauma resu ltin g from fractured thyroid cartilage, and blunt trau m a to the chest causing multiple rib fractures. The m e d ic al examiner . . . testified that these injuries occurred w h ile Kenneth Smith was alive, and that death or u n co n scio u sn ess would not have occurred until one to tw o minutes after the most serious, life threatening w o u n d s to the heart were inflicted.

. . . The evidence also shows that the stab wounds were more lik e ly inflicted in the order of increasing severity and that the fatal w o u n d s to the heart were probably inflicted last. Additionally, A tw ater beat his victim prior to or during the stabbing.

A tw a ter I, 626 So. 2d at 1327-29.

I II . Standard of Review B ecau se Atwater filed his petition after the effective date of the AntiT erro rism and Effective Death Penalty Act of 1996 ("AEDPA"), this case is g o v ern ed by 28U.S.C. § 2254 as modified by the Act. Lindh v. Murphy, 521 U.S.

3 2 0 , 326, 117 S. Ct. 2059, 2063, 138 L. Ed. 2d 481 (1997). According to § 2 2 5 4 (e)(1 ), "a determination of a factual issue made by a State court shall be p resu m ed to be correct," and "[t]he applicant shall have the burden of rebutting the p r e su m p tio n of correctness by clear and convincing evidence." As to claims that th e state court adjudicated on the merits, § 2254(d)(1) restricts issuance of habeas c o r p u s to those that "resulted in a decision that was contrary to, or involved an u n reaso n ab le application of, clearly established Federal law, as determined by the S u p rem e Court of the United States." Section 2254(d)(2) allows a petition for writ o f habeas corpus to be granted when the state court determination "resulted in a d ecisio n that was based on an unreasonable determination of the facts in light of th e evidence presented in the State court proceeding." "A state-court decision will certainly be contrary to our clearly established p r e ce d e n t if the state court applies a rule that contradicts the governing law set f o r th in our cases. " Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519, 1 4 6 L. Ed. 2d 389 (2000). "A state-court decision will also be contrary to this C o u r t's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless a rr iv e s at a result different from our precedent." Id. at 406, 120 S. Ct. at 1519-20.

"[ A ]n unreasonable application of federal law is different from an incorrect o r erroneous application of federal law." Id. at 412, 120 S. Ct. at 1523 (emphasis o m itte d ) . "[C]learly established Federal law . . . refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant s ta te -c o u r t decision." Id. "Under the `unreasonable application' clause, a federal h ab eas court may grant the writ if the state court identifies the correct governing leg al principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S. Ct. at 1523.

With these principles in mind, we turn to Atwater's claims.

IV . Batson Claim A t trial, Atwater objected to the state's use of a peremptory challenge to rem o v e Antoinette Ellison, the only black member of the jury venire, based on the S u p rem e Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L . Ed. 2d 69 (1986). The Batson challenge was confined to the following c o llo q u y : [ D EFENSE COUNSEL]: Judge, at this time the Defense would ask the State to state the reason as to why they're striking the sole b lack juror in this panel.

[ P ROSECUTION]: I would like to state, Judge, under the most recen t Supreme Court case that a white defendant does not have s ta n d in g to challenge ­ or does not have standing to assert that we are ex ercisin g our challenges in a racially biased method.

T HE COURT: I'd like to hear, in an abundance of caution, I'd lik e to hear a reason.

[ P ROSECUTION]: In an abundance of caution, if you would r ec all back to her demeanor when I was asking her the questions when I asked about the death penalty, she very much clammed up to a shell.

H er voice lowered to where she could hardly speak. I think that she h as reservations about a juror ­ you know, based on being a juror in th is case.

[ D EFENSE COUNSEL]: Judge, I think that she clearly and u n eq u iv o cally, I think that the court was right on point when he asked [th e prosecution] to restate his question to make sure the juror u n d ersto o d the question. I think when [the prosecution] restated it in a fashion that she was capable of understanding, she did answer the q u e s tio n .

A g ain , I would suggest to the Court that the only reason the S tate is striking Ms. Ellison is because she is the sole black person on th e jury panel.

T HE COURT: The Court, in observing that particular juror, th o u g h t that she did respond with difficultly to the questions that were ask ed . Based upon the answers she gave and the demeanor, I believe th e State's peremptory challenge will be well-taken.

[ D EFENSE COUNSEL]: Just for the preservation of my record, w e would move for a mistrial based on the fact that the State has strick en the sole black person on the jury panel and deny [sic] my clien t a fair trial by a jury of his peers.

T HE COURT: Thank you. Any additional challenges of this p a n e l? [ D EFENSE COUNSEL]: No, your Honor.

[ P ROSECUTION]: No further challenges at this time.

T ran scrip t of Record on Appeal at 851-53, Florida v. Atwater, No. CRC 89-13299.

In his habeas petition, Atwater claims that the trial court's application of B a tso n was unreasonable because other non-black jurors expressed reluctance reg ard in g the death penalty, while Ellison said that she would not refuse to c o n s id e r the death penalty or allow her views about the death penalty to affect her d ecisio n on guilt or innocence. Thus, Atwater asserts that a comparative juror an alysis compels the conclusion that Ellison was struck because of her race. This c o m p a r ativ e juror argument was not made at the time that the Batson challenge w as made at the trial court. Atwater also contends that the state courts failed to a d d r e ss the third step of Batson in evaluating his claim, and therefore, there is no d eterm in atio n to which this Court must defer.

The state argues that the district court properly denied relief because Atwater failed to meet his burden of rebutting the presumption of correctness afforded state c o u r t factual findings or establishing that the state court's legal conclusions were a n unreasonable application of, or contrary to, federal law. The state maintains that b ased on the combination of Ellison's answers and her demeanor, the state courts d id not err in applying Batson. The state further claims that the state courts' treatm en t of Atwater's Batson claim was adequate.

In Batson, the Supreme Court articulated a three-part test to evaluate equal p r o te ctio n challenges to a prosecutor's use of peremptory challenges. The initial b u rd en of establishing a prima facie case of discrimination rests with the d efen d an t. Batson, 476 U.S. at 96, 106 S. Ct. at 1723. In determining whether the d efen d an t has met this burden, the court should consider "the totality of relevant facts" about a prosecutor's conduct. Id.

A fter the defendant makes a prima facie showing, the state must come f o r w a rd with a race neutral explanation for challenging a black juror that is related to the particular case to be tried. Id. at 97, 98, 106 S. Ct. at 1723, 1724. The issue in this step of Batson is the facial validity of the reason given by the prosecutor; th erefo re, the reason will be deemed race neutral unless a discriminatory intent in h eres in the prosecutor's explanation. Hernandez v. New York, 500 U.S. 352, 3 6 0 , 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395 (1991) (plurality opinion).

Although there are a number of bases upon which a prosecutor may desire to strike a juror not excusable for cause, at this step, the prosecutor is required to provide a "`clear and reasonably specific' explanation of his `legitimate reasons' for e x e rc is in g the challenges." Id. at 98 n.20, 106 S. Ct. at 1724 n.20 (quoting Texas D ep t. of Community Affairs v. Burdine, 450 U.S. 248, 258, 101 S.Ct. 1089, 1096, 6 7 L. Ed. 2d 207 (1981)). A "legitimate reason" is not required to make sense, be p e r su a s iv e or even plausible; it need only be one that does not deny equal p ro tectio n . Purkett v. Elem, 514 U.S. 765, 768-69, 115 S. Ct. 1769, 1771, 131 L.

E d . 2d 834 (1995) (per curiam). Nor is it not necessary that such a reason rise to th e level supporting a challenge for cause, although general assertions, including assu m p tio n s or intuitive judgments that a black juror will be partial to a defendant, are insufficient. Batson, 476 U.S. at 97, 106 S. Ct. at 1723. Also unacceptable are m ere denials of discriminatory motive or affirmations of good faith in exercising th e strike. Id. at 98, 106 S. Ct. at 1723-24.

Once the prosecutor articulates a race neutral reason for the strike, the third s te p of Batson requires the trial court to determine if the defendant has established p u rp o sefu l discrimination. Batson, 476 U.S. at 98, 106 S. Ct. at 1724. At this stag e, the persuasiveness of the prosecutor's justification for his peremptory strike is the critical issue. Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 338-39, 123 S . Ct. 1029, 1040 154 L. Ed. 2d 931 (2003). "[I]mplausible or fantastic ju stificatio n s" may be found to be pretextual, and in these cases, the question is w h eth er the prosecutor's race neutral explanations are credible. Id. at 339, 123 S.

C t. at 1040 (quoting Purkett, 514 U.S. at 768, 115 S. Ct. at 1769). In assessing the c re d ib ility of the prosecutor's stated reasons, the court may look to, among other th in g s, the prosecutor's demeanor; the reasonableness or the improbability of the ex p lan atio n s; and whether the reason is grounded in acceptable trial strategy. Id.

Likewise, "[i]f a prosecutor's proffered reason for striking a black panelist applies ju st as well to an otherwise-similar nonblack who is permitted to serve, that is ev id en ce tending to prove purposeful discrimination to be considered at Batson's th ir d step." Miller-El v. Dretke (Miller-El II), 545 U.S. 231,, 125 S. Ct. 2317, 2 3 2 5 , 162 L. Ed. 2d 196 (2005). We emphasize that "the ultimate burden of p ersu asio n regarding racial motivation rests with, and never shifts from, the o p p o n e n t of the strike." Purkett, 514 U.S. at 768, 115 S. Ct. at 1771.

H ere, the Florida Supreme Court engaged in the following analysis of A tw ater's Batson claim: A tw ater claims that the trial court erred in allowing the State to ex ercise a peremptory challenge removing the sole black person in the v e n ir e. We disagree. Upon Atwater's objection to the peremptory c h a lle n g e , the trial court inquired as to the State's reasons. The record reflec ts that the court's inquiry was adequate and the record supports th e State's explanation for exercising the challenge. The court ex p ressly noted that the prospective juror had difficulty answering the q u estio n s put to her and her demeanor indicated that she was hesitant an d uncomfortable regarding the death penalty. This is a valid, race-n eu tral reason for exercising a peremptory challenge, and the c o u r t did not abuse its discretion in upholding the challenge.

A tw a ter I, 626 So. 2d at 1327.

From this discussion, it appears that the Florida Supreme Court improperly c o n d e n s ed the second and third steps of Batson. As stated above, in the second s te p of Batson, a prosecutor need only offer a race neutral reason for the strike, no m atter how silly or implausible. It is not until the third step in the analysis that the p ersu asiv en ess of the prosecutor's proferred reasons becomes relevant in d eterm in in g whether the defendant has established purposeful discrimination. 476 U .S . at 98, 106 S. Ct. at 1724. The Supreme Court reiterated the importance of a d d r e ss in g each distinct step of Batson in Purkett, 514 U.S. at 768, 115 S. Ct. at 1 7 7 1 (concluding that the Court of Appeals incorrectly applied Batson by co m b in in g its second and third steps into one), and subsequently in Miller-El II, 5 4 5 U.S. at, 125 S. Ct. at 2325 (stating that "side-by-side comparisons of some b la ck venire panelists who were struck and white panelists allowed to serve" are r ele v a n t considerations at the third step of Batson). We strongly caution courts th a t the failure to address each of Batson's steps creates the risk of serious co n stitu tio n al error. See Hightower v. Schofield, 365 F.3d 1008, 1041-44 (11th C ir. 2004) (Wilson, J., concurring), vacated,U.S., 125 S. Ct. 2929, 152 L. E d . 2d 863 (2005) (remanding for further consideration in light of Miller-El II).

H o w ev er, given the great deference afforded the determinations of state co u rts under § 2254, we cannot reach the conclusion that the trial court or the F lo rid a Supreme Court unreasonably applied Batson in this case. Here, the trial co u rt went beyond a mere finding that the state articulated a race neutral reason for th e strike ­ the trial court engaged in some evaluation of the prosecutor's reasons f o r the strike and determined that the race neutral reason given for striking venire m e m b e r Ellison was supportable. Therefore, the third step of the Batson analysis w a s touched. The trial judge upheld the peremptory strike after agreeing that E lliso n exhibited some difficulty with her responses to the prosecution question.

The defendant then failed to follow through, or come forward with any concrete p retex t evidence or argument. "When an allegation of pretext is raised, the d e f en d a n t bears the burden of convincing the district court that the proferred r ea so n s are pretextual by introducing evidence of comparability." United States v. A lsto n , 895 F.2d 1362, 1374 (11th Cir. 1990) (Hatchett, J., concurring). No such effo rt was made in this case. Although Atwater presented comparative evidence of d is cr im in a tio n to the post-conviction courts and in his petition for habeas relief, co n sp icu o u sly absent from the trial record is some argument or evidence of c o m p a r ab ility at the time that the Batson challenge was made to refute the p r o s e cu to r 's reason for the strike. Here, then, "[t]he lesson to claimants of Batson v io la tio n s and prosecutors is that comparisons must be made between the black ju r o r s removed from jury service and the white jurors remaining for service." Id. at 1374-75. Without this comparison evidence, Atwater's Batson claim fails.

V . Ineffective Assistance of Counsel A . Concession of Guilt on Lesser Included Offense I n his state post-conviction proceedings and on habeas review in district co u rt, Atwater argued that his counsel was ineffective for telling the jury during clo sin g argument that the evidence supported a finding of second degree murder.

This claim was the subject of an evidentiary hearing in the state trial court, alth o u g h the trial court did not resolve the factual dispute over whether Atwater's law yers discussed this strategy with him. Instead, the trial court found that the co n ce ss io n of guilt was a "legitimate trial strategy even without the defendant's k n o w led g e or consent." Order Den. Mot. Post-Conviction Relief, Jan. 5, 1999, citin g McNeal v. Wainwright, 722 F.2d 674 (11th Cir. 1984) (per curiam). The F lo rid a Supreme Court affirmed the denial of the Atwater's claim, finding that the trial court properly relied upon and applied McNeal. Atwater II, 788 So. 2d at 2 3 0 -3 1 .

Atwater asserts that his attorneys failed to discuss trial strategy with him and th at their decision to concede guilt on second degree manslaughter deprived him of th e right to hold the prosecution to its burden of proof beyond a reasonable doubt.

In Florida v. Nixon, the Supreme Court stated that an attorney must "consult with th e client regarding important decisions," including the decision to plead guilty.

543 U.S. at 187, 125 S. Ct. at 560 (internal quotation marks omitted). Therefore, A tw a te r asserts that his counsel were required to obtain his consent before c o n c e d in g second degree murder in their closing argument, which in effect co n stitu ted a guilty plea. Further, Atwater contends that this case is d istin g u ish ab le from McNeal because instead of arguing that the state had not p r o v e n the element of premeditation, his counsel forcefully argued in favor of a c o n v ic tio n for second degree murder.

T h e state responds that the Florida Supreme Court was correct in d istin g u ish in g Nixon from the instant case, as the trial strategy that Atwater's co u n sel employed did not amount to a guilty plea but rather was a strategy in ten d ed to save Atwater's life. See Atwater, 788 So. 2d at 232. Additionally, as th e state courts recognized, Atwater is unable to demonstrate that his counsel were in e f fe ctiv e because he is unable to satisfy the Strickland standard.

In order to succeed on a claim of ineffective assistance of counsel, a d efen d an t must show that counsel's performance was deficient and that this d eficien cy prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 1 0 4 S. Ct. 2052, 2064, 180 L. Ed. 2d 674 (1984). "[T]he question is whether there is a reasonable probability that, absent the errors, the sentencer § 2254, we must find that the Florida Supreme Court's d ecisio n was contrary to, or an unreasonable application of, Strickland in order to g ran t Atwater's petition.

T h e Florida Supreme Court found that Atwater failed to show either d ef icien t performance or prejudice. With regard to the issue of whether counsel's p erfo rm an ce was deficient, it concluded that Atwater's counsel subjected the state's case to "a meaningful adversarial testing," conducting "meaningful c ro s s -e x a m in a tio n of fifteen of [the state's twenty] witnesses." Atwater II, 788 So.

2 d at 231. According to the Florida Supreme Court, [a]t no point during the opening statement or during any of the testim o n y did defense counsel concede Atwater's guilt. During the f ir st part of defense counsel's closing argument, defense counsel arg u ed that the State failed to prove robbery and therefore could not p ro v e felony murder. Defense counsel stated in the first part of clo sin g arguments that he would address premeditation after the S tate's closing argument. The State argued in closing argument that it h a d proven robbery and premeditation, and discussed the evidence p resen ted which included: Atwater had threatened to kill Smith a w eek before; Smith was afraid of Atwater and hid from him; on the n ig h t of the murder Atwater signed in on the clerk's log at Smith's a p a rtm e n t building; Atwater exited approximately twenty minutes la te r and told the desk clerk that nobody answered the door; Atwater h a d blood on his shoes and pants that was not from Atwater himself; a n d Atwater told his aunt and cousin that he killed Smith and enjoyed it. In response, then, and in rebuttal closing argument, defense co u n sel addressed premeditation and argued that the evidence might s u p p o r t the lesser offense of second-degree murder, but there was n o th in g to support premeditation. In light of the overwhelming e v id en ce of guilt presented by the State, which we acknowledged in o u r opinion on the direct appeal, defense counsel's argument was re a s o n ab le. . . . [D]efense counsel did subject the State's case to m ean in g fu l testing, and only after the State's case was presented and f u lly argued did defense counsel resort to making some concession ­ a trial strategy intended to save Atwater's life. Under the c ir cu m s ta n c es , this strategy was reasonable.

Id . at 231-32.

A d d itio n ally, at the state trial court evidentiary hearing, one of Atwater's trial lawyers testified that as an experienced attorney of seventeen years with five o r six capital trials and over a hundred criminal trials, he did not believe Atwater h ad a chance at getting an acquittal, and his strategy was to save Atwater's life.

Given these considerations, we cannot conclude that the Florida Supreme Court u n r ea so n a b ly applied, or reached a decision contrary to, clearly established federal law . Therefore, Atwater is not entitled to habeas relief on this ground.

B . Failure to Call Atwater to Testify A tw a te r also argues that his lawyers' failure to allow him to take the stand at trial violated the right of the accused to testify, as recognized in Faretta v. C a lifo rn ia , 422 U.S. 806, 820 n.15, 95 S. Ct. 2525, 2533 n.15, 45 L. Ed. 2d 562 (1 9 7 5 ). Atwater claims that only a defendant may waive this right regardless of tactical considerations. United States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1 9 9 2 ) (en banc). He further notes that the post-conviction court acknowledged the factu al dispute over whether Atwater's attorneys ever told him that he had the right to "overrule them" and testify but decided the issue on the prejudice prong of S trickla n d only. According to Atwater, the state court's conclusions conflict with th e classification of an accused's decision to testify as personal to the defendant.

See id.

T h e state first notes that this claim was found to be procedurally barred by th e district court due to Atwater's failure to raise the claim in the Florida Supreme C o u rt, a determination reviewed de novo. Kelley v. Sec'y for Dep't of Corr., 377 F .3 d 1317, 1345 (11th Cir. 2004), cert. denied sub nom. Kelley v. Crosby,U.S., 125 S. Ct. 2462, 162 L. Ed. 2d 906 (2005). Pursuant to state procedural rules, ab an d o n m en t of an issue results from submission of a brief without argument th ereo n in an appeal of an order denying relief after an evidentiary hearing. See, e.g ., Shere v. State, 742 So. 2d 215, 217 n.6 (Fla. 1999) (per curiam). Because A tw ater has not shown cause or prejudice to excuse the default, the state argues, he is unable to raise his claim now. Even if Atwater could show valid cause, which th e state does not concede, he does not demonstrate actual prejudice in view of the o v erw h elm in g evidence of his guilt of first degree murder. The state alternatively co n ten d s that the state trial court properly found that Atwater was unable to show p r e ju d ic e under Strickland.

Regarding the issue of procedural default, Atwater states that on appeal of p o st-co n v ictio n relief, the facts about whether counsel interfered with the d efen d an t's right to testify were raised in connection with the claim about c o u n s el's concession of guilt, although the two issues were not formatted as sep arate grounds for relief.

The Florida Supreme Court recognized that an evidentiary hearing was held o n the issue of whether trial counsel prevented Atwater from testifying on his own b eh alf. Atwater II, 788 So. 2d at 227 n.2. However, Atwater did not raise the rig h t-to -testify issue in his initial brief on appeal from the denial of his 3.850 m o tio n in the Florida Supreme Court. See id. at 227-28. Although Atwater asserted the issue in his reply brief, according to Florida law, it was too late. See, e.g ., Shere, 742 So. 2d at 217 n.6 (in Florida, an issue raised in an appellate brief w h ich contains no argument is abandoned); see also Gen. Mortgage Assoc., Inc. v. C a m p o lo Realty & Mortgage Corp., 678 So. 2d 431, 431 (Fla. Dist. Ct. App. 1996) ("T h e fact that [an] issue was raised for the first time in the reply brief alone p r e clu d e s our consideration of the matter."). It is well-settled that "if the petitioner failed to exhaust state remedies and the court to which the petitioner would be req u ired to present his claims in order to meet the exhaustion requirement would n o w find the claims procedurally barred . . .[,] there is a procedural default for p u r p o s e s of federal habeas . . . ." Coleman v. Thompson, 502 U.S. 722, 735 n.1, 1 1 1 S. Ct. 2546, 2557 n.1, 115 L. Ed. 2d 640 (1991). Because Atwater did not p ro p erly exhaust this claim in state court, this issue is defaulted.

T h is being the case, we may only consider the issue on appeal if the d e f en d a n t shows both cause for noncompliance with the state rule and actual p r e ju d ic e resulting from the alleged constitutional violation, or "if a constitutional v io la tio n has probably resulted in the conviction of one who is actually innocent." Smith v. Murray, 477 U.S. 527, 533, 537, 106 S. Ct. 2661, 2665-66, 2668, 91 L.

E d . 2d 434 (1986). Here, Atwater has neither alleged nor shown cause and p reju d ice or actual innocence in order to excuse his default of the issue. He is th erefo re barred from raising it now.

In any event, even if Atwater had properly preserved the issue for review, w e cannot say that the state trial court's conclusion that he failed to meet the S trickla n d standard was unreasonable or contrary to federal law. The state trial c o u r t found that Atwater "failed to meet his burden to show how he was prejudiced b y not testifying at his trial."1 Order Den. Mot. Post-Conviction Relief, Jan. 5, 1 9 9 9 . It also found that "the trial record show[ed] that the defendant's first-person p ro fessio n of innocence, when weighed against the substantial evidence to the c o n tr ar y presented by the State, would not have changed the jury's verdict." Id.

Considering the overwhelming evidence of Atwater's guilt, see Atwater II, 788 So.

2 d at 231-32, the state trial court's finding that Atwater is unable to demonstrate p reju d ice as required by Strickland is neither an unreasonable application of, nor co n trary to, federal law. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2069 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient p reju d ice . . . that course should be followed."). Therefore, this claim lacks merit.

C . Failure to Present Mitigation Evidence A tw a te r makes several arguments in support of his contention that his trial co u n sel were ineffective for failing to present available mitigation evidence in the p en alty phase of the trial. First, he claims the district court erred in denying A tw a te r's request for an evidentiary hearing. Second, he asserts that his counsel d id not adequately prepare for the penalty phase of his trial. Third, he argues that h is counsel's penalty phase presentation was prejudicially deficient. Finally, he co n ten d s that his counsel's failure to investigate and present available mitigation ev id en ce prejudiced him.

As an initial matter, we address Atwater's argument that his requests for an e v id e n tia ry hearing on penalty phase ineffectiveness in both the state and federal co u rts were improperly denied. Atwater notes that the district court denied the req u est on the basis that, contrary to the due diligence requirement of 28U.S.C. § 2 2 5 4 (e)(2 ), Atwater failed to apprise the state courts of the proferred testimony of tw o expert witnesses. However, according to Atwater, Florida law at that time did n o t require that a post-conviction movant allege the identities of the witnesses, the n atu re of their testimony, or their availability to testify. Gaskin v. State, 737 So. 2d 5 0 9 , 514 n.10 (Fla. 1999) (per curiam), receded from by Nelson v. State, 875 So. 2d 5 7 9 , 582-83 (Fla. 2004). Furthermore, Atwater says that the district court faulted h im for not proffering Dr. Cowardin's testimony about adult attention deficit d iso rd er ("ADD"), when the factual substance of the claim was presented and co n sid ered by the Florida Supreme Court even if Dr. Cowardin's name was not. T h e r ef o r e, Atwater claims that the district court erred in applying § 2254(e)(2).

T h e state responds that a district court's decision to deny an evidentiary h earin g is reviewed for abuse of discretion, and an evidentiary hearing is not req u ired "unless [a petitioner] can demonstrate that his factual allegations, if p ro v en , would indicate that the Florida Supreme Court acted contrary to, or u n r ea so n a b ly applied, clearly established federal law." Breedlove v. Moore, 279 F .3 d 952, 959, 961 (11th Cir. 2002). As Atwater observes, his claim was denied o n due diligence grounds. However, the state argues that the district court also fo u n d that Atwater's claim failed because he did not meet the prejudice prong of S trickla n d and because he failed to demonstrate that the Florida Supreme Court a cte d in a way that was contrary to, or unreasonably applied, clearly established fed eral law when it rejected Atwater's ineffective assistance claim.

A s the state points out, we review the district court's denial of an evidentiary h earin g for abuse of discretion. Id. at 959. The AEDPA provides the standards g o v e r n in g the power of federal courts to order an evidentiary hearing in habeas cases. Section 2254(e)(2) provides: If the applicant has failed to develop the factual basis of a claim in S ta te court proceedings, the court shall not hold an evidentiary h earin g on the claim unless the applicant shows that ­ (A) the claim relies on ­ (i) a new rule of constitutional law, made retroactive to cases on co llateral review by the Supreme Court, that was previously u n av ailab le; or ( ii) a factual predicate that could not have been previously discovered th ro u g h the exercise of due diligence; and (B ) the facts underlying the claim would be sufficient to establish by cle a r and convincing evidence that but for constitutional error, no reaso n ab le factfinder would have found the applicant guilty of the u n d e r ly in g offense.

I n this case, Atwater sought an evidentiary hearing regarding this claim at th e state post-conviction court and from the Florida Supreme Court. The state c o u r ts denied his requests and as a result, Atwater was unable to develop a factual b asis for his claim in state court. In light of this fact, § 2254(e)(2) does not p reclu d e an evidentiary hearing in Atwater's case. See Breedlove, 279 F.3d at 960.

Even so, "it would still be appropriate to deny [Atwater] an evidentiary h e a rin g if such a hearing would not assist in the resolution of his claim." Id.

(citin g Bolender v. Singletary, 16 F.3d 1547, 1555 n.9 (11th Cir.1994)). "[I]t is w ell established that a habeas petitioner is entitled to an evidentiary hearing if he or s h e alleges facts that, if proved at the hearing, would entitle petitioner to relief." Id. (quoting Meeks v. Singletary, 963 F.2d 316, 319 (11th Cir.1992)). Therefore, an evidentiary hearing is not required unless Atwater can demonstrate that his factu al allegations, if proven, would indicate that the state courts acted contrary to, o r unreasonably applied, clearly established federal law when they rejected his in effectiv e assistance of counsel claim. See 28U.S.C. § 2254(d)(1).

In this case, the trial court found that: [D ]efen se mitigation witness Dr. Merin, a psychologist, testified to essen tially the same information about defendant's early life and f a m i ly situation as outlined in defendant's claim. Defense counsel a l s o presented testimony from Dr. Merin and from three witnesses reg ard in g defendant's alcohol use. The State points out that the d e f en d a n t does not suggest what other witnesses should have been c alle d by the defense counsel to testify to mitigation. The Court ad o p ts the State's response as to this claim, and finds that defendant d o e s not meet the performance component of Strickland v. W a sh in g to n , 466 U.S. 668 (1984).

O rd er Den. Am. Mot. To Vacate J. And Sentence In Part and Order Granting E v id en tiary Hr'g In Part, June 29, 1998.

T h e Florida Supreme Court also addressed the issue and concluded that "[ t]h e record shows that the evidence [outlined in Atwater's claim] was considered in mitigation, and that the trial court did not find that this nonstatutory mitigation ev id en ce outweighed the aggravating factors. There is no reasonable probability th at re-presenting virtually the same evidence through other witnesses would have a lte re d the outcome in any manner." Atwater II, 788 So. 2d at 234.

We cannot say that these determinations are unreasonable applications of, or co n trary to, federal law. See 28U.S.C. § 2254(d)(1). Therefore, Atwater is not en titled to an evidentiary hearing. For the same reasons, the substance of his in effectiv e assistance of counsel claim likewise fails.

VI. Conclusion F o r the foregoing reasons, we find that Atwater's claims are without merit.

The district court's denial of his petition for writ of habeas corpus is affirmed.

A F F IR M E D .

1 The Florida Supreme Court did not address this issue because it was not presented on appeal from the denial of Atwater's Rule 3.850 motion to vacate his conviction and sentence.