FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 11, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-16016

Non-Argument Calendar

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D. C. Docket No. 06-00334-CV-JEC-1

ANTONIO EVANS, 

Petitioner-Appellant, 

versus 

VICTOR WALKER, 

Respondent-Appellee. 

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(July 11, 2007)

Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

Georgia state prisoner Antonio Evans appeals pro se the denial of his
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petition for a writ of habeas corpus. The district court granted a certificate of

appealability on the issue whether Evans’s trial counsel was ineffective for failing

to object, move for a curative instruction, and move for a mistrial after a state

witness arguably placed Evans’s character in issue. Because Evans failed to

establish that the decision of the state court was “contrary to” or “an unreasonable

application of” Supreme Court precedent, 28 U.S.C. § 2254(d)(1), we affirm.

At Evans’s trial for felony murder and possession of a firearm by a

convicted felon, defense counsel asked a state witness during cross-examination

whether the witness sold drugs. The state witness then denied selling drugs and

volunteered that Evans sold drugs. Evans argues that his trial counsel was

ineffective for failing to object, move for a curative instruction, and move for a

mistrial. Evans maintains that this error undermined the validity of the verdict, and

that there is a reasonable probability that, but for this error, the result of the trial

would have been different. 

We review de novo the denial of habeas relief by the district court, McNair

v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005), cert. denied, 126 S. Ct. 1828

(2006), but Crowe’s habeas petition is governed by the Antiterrorism and Effective

Death Penalty Act of 1996, which limits our review of the decisions of the state

courts and establishes a “general framework of substantial deference” for
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reviewing “every issue that the state courts have decided.” Diaz v. Sec’y for the

Dep’t of Corr., 402 F.3d 1136, 1141 (11th Cir. 2005). A federal court may not

grant habeas relief on claims that were previously adjudicated in state court unless

the adjudication “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court . . . or . . . resulted in a decision that 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)(1)-(2). A state court decision is “contrary to”

established law if (1) the state court arrives at a conclusion opposite to that reached

by the Supreme Court on a question of law, or (2) a state court confronts facts

“materially indistinguishable” from relevant Supreme Court precedent, but reaches

an opposite result. Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519

(2000). A state court decision is an “unreasonable application” of clearly

established law if the state court unreasonably applies controlling law, or

unreasonably extends, or fails to extend, a legal principle to a new context. Id. at

407, 120 S. Ct. at 1520. “[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). 
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To establish ineffective assistance of counsel, a defendant must prove that

(1) the performance of his attorney was constitutionally deficient, and (2) he was

prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984). An attorney’s performance is measured for “reasonableness

under prevailing professional norms.” Id. at 688, 104 S. Ct. at 2065. To prove

prejudice, Evans “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694, 104 S. Ct. at 2068. If the defendant fails to satisfy his

burden under either part of this test, we need not address the other part. Id. at 697,

104 S. Ct. at 2069. 

Under Georgia law, the government is not allowed to introduce evidence of

the character of a defendant unless the defendant first puts his character in issue,

either through his own unsworn statements or by witnesses who testify about his

reputation in the community. Jones v. State, 363 S.E.2d 529, 532 (Ga. 1988). A

nonresponsive answer “does not place the defendant’s character in issue,” even if

the answer impacts negatively on the character of the defendant. Id. In Hansley v.

State, for example, when a state witness was asked if he was familiar with the

murder weapon, he volunteered that he had previously seen Hansley draw the

weapon and point it at a friend of the witness. 472 S.E.2d 305, 306 (Ga. 1996). 
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Hansley unsuccessfully moved for a mistrial on the ground that the statement of

the witness put his character in issue. Id. The Georgia Supreme Court affirmed

the order of the trial court denying Hansley’s motion for a new trial, reasoning that

“[a] nonresponsive answer that impacts negatively on a defendant’s character does

not improperly place the defendant’s character in issue.” Id. 

The conclusion of the state habeas court that Evans failed to satisfy the

Strickland test was not an unreasonable application of federal law. Evans failed to

establish that his trial counsel was ineffective for failing to object to the testimony

of the state witness that Evans sold drugs because there was no basis for an

objection under Georgia law. See Jones, 363 S.E.2d at 535. Evans failed to prove

that the performance of his attorney was deficient. 

The denial of Evans’s petition for a writ of habeas corpus is

AFFIRMED.