[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

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

ELEVENTH CIRCUIT

FEB 23, 2007

THOMAS K. KAHN

N o . 06-13680

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 05-00289-CV-TWT-1

M A T T H E W ROSS, III,

Petitioner-Appellant,

versus

DON JARRIEL,

Respondent-Appellee.

A p p e al from the United States District Court

fo r the Northern District of Georgia

(F eb ru a ry 23, 2007)

B efo re TJOFLAT, HULL and PRYOR, Circuit Judges.

P E R CURIAM:

M atth ew Ross II, a Georgia prisoner, pro se, appeals the denial of his p e titio n for a writ of habeas corpus. Ross argues, among other things, that his trial co u n sel failed to explain the consequences of stipulating to certain facts, "reserve th e right to object to any of the stipulated facts" at the bench trial, or investigate p rio r convictions. We affirm.

R o s s was charged with possession of cocaine with intent to distribute, p o s se ss io n of a firearm during the commission of a crime, possession of cocaine, p o s se ss io n of a firearm by a convicted felon, and a traffic violation. Ross's trial co u n sel moved to suppress the gun and drugs. The trial court denied the motion.

Ross then agreed to stipulate to facts establishing guilt and waive his right to a jury trial, rather than enter a guilty plea or have a trial on the merits. At the stipulation h earin g , Ross said that he understood that he was stipulating facts that would prove g u ilt as a means to appeal the denial of his motion to suppress and he would be w aiv in g his right to a jury trial. At the short bench trial that followed Ross's factu al stipulations, the government submitted certified copies of three prior felony co n v ictio n s to establish that Ross was a recidivist. The court found Ross guilty an d sentenced Ross to thirteen years of incarceration followed by probation. The G e o r g ia Court of Appeals affirmed, and the Supreme Court of Georgia denied c e r tio r a r i. R o s s filed a state habeas petition and argued that his trial counsel was in ef fe ctiv e. The state habeas court held an evidentiary hearing, and Ross's atto rn ey was the only witness. The attorney testified that he consulted with Ross ab o u t the stipulation procedure and informed him of the facts that would be stip u lated at the hearing. The attorney admitted that he did not reserve the right to o b ject to any of the stipulated facts, but he explained that Ross's stipulation of guilt a n d waiver of a jury trial eliminated the need to do so. The attorney admitted that h e stipulated to Ross's three prior convictions without investigation because the S ta te presented certified copies of the convictions. The state court denied habeas r e lie f .

R o s s filed a federal habeas petition. Ross argued, among other things, that h is attorney rendered ineffective assistance of counsel. The district court denied h ab eas relief. The district court granted a certificate of appealability on the issue o f whether Ross received ineffective assistance of counsel.

We review de novo the denial of a habeas petition. Sims v. Singletary, 155 F .3 d 1297, 1304 (11th Cir. 1998).

"The Sixth Amendment guarantees criminal defendants the effective assistan ce of counsel." Yarbrough v. Gentry, 540 U.S. 1, 5, 124 S. Ct. 1, 4 (2003).

To prove ineffective assistance, a petitioner must establish both that counsel's p erfo rm an ce was deficient and a reasonable probability that the outcome would h av e been different but for counsel's deficient performance. Strickland v. W as h in g to n , 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). An attorney's p e r fo r m a n c e is measured for "reasonableness under prevailing professional n o rm s." Id. at 688, 104 S. Ct. at 2065.

After our review of the record, we conclude that the decision of the state h a b e a s court that Ross's counsel was not ineffective was not contrary to federal law or based on an unreasonable determination of the facts. See 28U.S.C. § 2 2 5 4 (d ). The only evidence presented in Ross's state habeas proceeding e sta b lis h e d that Ross was advised of the purpose of the stipulation of the evidence an d that he voluntarily agreed to the procedure. The record establishes that Ross ag reed to the tactical decision of stipulating at a bench trial, rather than demanding a trial on the merits, because the only colorable argument in Ross's favor was that th e search that revealed he possessed cocaine and a handgun violated the C o n s titu tio n . The attorney explained that he had no cause to investigate or object to the introduction of Ross's previous felony convictions because, in Georgia, the S tate may prove a previous conviction by introducing a certified copy. See, e.g., S p e e d v. State, 270 Ga. 688, 693, 512 S.E. 2d 896, 905 (1999).

E v en if any of these actions had been unreasonable, Ross could not establish in the state habeas court that the result would have been different to a "probability su fficien t to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 1 0 4 S. Ct. 2068. The only evidence presented at his the suppression hearing, the testim o n y of the arresting officers, established that Ross committed the crimes with w h ic h he had been charged. Ross did not contradict this testimony at his bench trial or at his habeas hearing.

W h en liberally construed, see Tannenbaum v. United States, 148 F.3d 1262, 1 2 6 3 (11th Cir. 1998), both Ross's pro se federal habeas petition and his pro se b r ie fs on appeal purport to raise a host of other issues about the process afforded b y the state court and the adequacy of his trial attorney, but we need not reach their m e rits . To the extent that Ross's federal habeas petition raised issues not presented to the state habeas court, these issues are procedurally barred. See Lynd v. Terry, 4 7 0 F.3d 1308, 1313 (11th Cir. 2006). To the extent that his briefs on appeal raise issu es not presented in the district court or covered by the certificate of a p p e a la b ility , those issues are not properly before this court. See Murray v. United S ta te s, 145 F.3d 1249, 1250-51 (11th Cir. 1998).

T h e denial of Ross's habeas petition is A F F IR M E D .