[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-12525

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D. C. Docket No. 0:12-cv-60711-RNS

CARLOS VELAZCO,

 Petitioner-Appellant,

versus

DEPARTMENT OF CORRECTIONS,

Secretary,

 Respondent-Appellee.

________________________

Appeal from United States District Court 

for the Southern District of Florida

_______________________

(December 16, 2014)

Before WILLIAM PRYOR and JORDAN, Circuit Judges, and WALTER,

∗ District 

Judge.

 

∗ Honorable Donald E. Walter, United States District Judge for the Western District of 

Louisiana, sitting by designation.

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WILLIAM PRYOR, Circuit Judge: 

This appeal requires us to decide whether a district court erred when it 

denied a Florida prisoner’s petition for a writ of habeas corpus without holding an 

evidentiary hearing. After a Florida court convicted Carlos Velazco of attempted 

second degree murder, Velazco unsuccessfully argued in a state postconviction 

proceeding that his trial counsel had been ineffective in offering the testimony of 

two witnesses. When Velazco filed a federal petition and requested an evidentiary 

hearing, he argued that the Florida court had unreasonably applied clearly 

established federal law when it denied his claim of ineffective assistance of 

counsel. The district court refused to hold an evidentiary hearing and denied

Velazco’s petition. We granted a certificate of appealability on the question 

whether the district court abused its discretion when it denied Velazco’s petition 

without holding an evidentiary hearing. We affirm. 

I. BACKGROUND

On September 4, 2005, Carlos Velazco visited Arancello’s Restaurant in 

Hallandale, Florida, to celebrate his mother’s birthday. After he arrived, Velazco 

encountered Anthony DiCarlo, the owner of the restaurant, Chris Boyle, the 

bartender, Anthony Tafarella, who was helping out at the restaurant in the hope of 

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obtaining a job, and Carmen Mesa, a waitress. A security camera system at the

restaurant recorded their interactions. 

When Velazco complained to Mesa, his waitress, that his drink was too 

sweet, Tafarella came over to Velazco’s table to suggest another drink he might 

prefer. About one-and-a-half hours later, Velazco complained to Mesa that she had 

not given him correct change. Velazco then pushed Mesa three times. Tafarella 

intervened and grabbed Velazco’s arm. Velazco then tried to punch DiCarlo, who 

was standing nearby. Tafarella then placed Velazco in a headlock to restrain him. 

When Tafarella escorted Velazco to an exit, DiCarlo and Boyle followed and were 

standing behind Tafarella when he released Velazco from the headlock. But 

Tafarella continued to hold Velazco’s arm.

Velazco then produced a knife from his pocket and repeatedly stabbed 

Tafarella. DiCarlo and Boyle intervened and began beating Velazco. Tafarella 

suffered nine stab wounds and permanent nerve damage. Velazco suffered black 

eyes and a broken nose.

An information charged Velazco with attempted second degree murder with 

a weapon or a firearm. At his jury trial, Velazco argued that he acted in selfdefense. The prosecution called the officers who had investigated the incident, as 

well as Tafarella and Boyle, to testify. The prosecution also introduced the video 

recordings of the incident as evidence. 

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Defense counsel called four witnesses to testify, two of whom were Nancy 

Vieta, Velazco’s mother, and Lizbeth Pulgar, a friend of Nancy Vieta. Pulgar 

testified that Velazco acted “normal” on the night of the incident and never 

provoked anyone. She testified that Tafarella was “very aggressive” when he came 

over to their table. She testified that she never saw Velazco stab anyone. Vieta 

testified that she saw the men leave the restaurant while hitting Velazco. Vieta also 

testified that she never saw Velazco with a knife nor saw him stab anyone.

Although Pulgar and Vieta denied having given statements to the police, a 

police officer, called as a rebuttal witness for the state, testified that he took 

statements from both witnesses. The officer testified that Pulgar and Vieta denied 

having seen the incident. On cross-examination, the prosecution also elicited

internal inconsistencies in both Pulgar’s and Vieta’s testimony. 

The jury convicted Velazco of attempted second degree murder, and the trial 

judge sentenced him to 27 years in prison followed by three years of probation. 

The Florida Fourth District Court of Appeal affirmed without opinion. Velazco v. 

State, 992 So. 2d 270 (Fla. Dist. Ct. App. 2008). 

In a motion for postconviction relief in a Florida court, Fla. R. Crim. P. 

3.850, Velazco alleged that his counsel had been ineffective because they failed to 

investigate the accounts of Pulgar and Vieta before calling them to testify. The trial

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court denied the motion. The Florida Fourth District Court of Appeal affirmed 

without opinion. Velazco v. State, 83 So. 3d 739 (Fla. Dist. Ct. App. 2012). 

Velazco filed a federal petition for a writ of habeas corpus. He challenged 

the ruling that he had failed to establish ineffective assistance of counsel regarding 

the offering of Vieta’s and Pulgar’s testimony. He also requested an evidentiary 

hearing. The district court denied Velazco’s request for a hearing and his petition.

This Court granted a certificate of appealability to determine whether the district 

court abused its discretion by denying Velazco’s request for an evidentiary hearing 

to prove his claim of ineffective assistance of counsel.

II. STANDARD OF REVIEW

When we review a denial of a state prisoner’s petition, we review questions 

of law de novo, Grossman v. McDonough, 466 F.3d 1325, 1335 (11th Cir. 2006), 

but the Antiterrorism and Effective Death Penalty Act of 1996 establishes a 

“general framework of substantial deference [that] governs our review of 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). We will not disturb the decision of the state 

court unless that decision “was contrary to, or involved an unreasonable 

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

Court of the United States,” 28 U.S.C. § 2254(d)(1), or was “based on an 

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unreasonable determination of the facts in light of the evidence presented in the 

State court proceeding.” Id. § 2254(d)(2).

III. DISCUSSION

The certificate of appealability erroneously assumes that we review for 

abuse of discretion the denial of Velazco’s request for an evidentiary hearing. To 

be sure, when a federal prisoner files a motion to vacate his sentence, 28 U.S.C. § 

2255, we review the denial of an evidentiary hearing for “abuse of discretion.” 

Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002). But when a state 

prisoner files a petition for a writ of habeas corpus, 28 U.S.C. § 2254, we follow a 

“clear, emphatic rule” that, “if a state court has adjudicated the claim on the merits, 

then a petitioner must satisfy § 2254(d)(1) based only on the record before that 

state court.” Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 1254, 1263 (11th Cir. 

2014) (citing Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388 (2011)). If a 

petitioner satisfies that burden, we then review for abuse of discretion the denial of 

an evidentiary hearing. See Burgess v. Comm’r, Alabama Dep’t of Corr., 723 F.3d 

1308, 1319–20 (11th Cir. 2013) (reviewing denial of evidentiary hearing for abuse 

of discretion after concluding that petitioner had satisfied his burden under section 

2254(d)(2)).

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The district court correctly examined only the state record. Section 2254 

governs Velazco’s petition. The state appellate court summarily denied Velazco’s 

motion for postconviction relief, Velazco, 83 So. 3d 739, and that decision was an 

“adjudication on the merits,” Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348, 1353 

(11th Cir. 2012). Velazco bears the burden of establishing, on the basis of the state 

record alone, that the decision of the state court “was contrary to, or involved an 

unreasonable application of, clearly established Federal law.” 28 U.S.C.

§ 2254(d)(1). 

To obtain state postconviction relief on his claim of ineffective assistance of 

counsel, Velazco had to establish both that his counsel performed deficiently and 

that “the deficient performance prejudiced the defense.” Strickland v. Washington, 

466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). And in our review of the denial 

of that claim, “‘[i]f it is easier to dispose of an ineffectiveness claim on the ground 

of lack of sufficient prejudice, which we expect will often be so, that course should 

be followed.’” Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1326 (11th Cir. 

2013) (en banc) (quoting Strickland, 466 U.S. at 697, 104 S. Ct. at 2069). In our

review of whether he established prejudice, Velazco “has to show that every fairminded jurist would conclude that there is a reasonable probability that, but for 

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

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different.” Jones v. GDCP Warden, 753 F.3d 1171, 1184 (11th Cir. 2014) (internal 

quotation marks and citation omitted). 

The Florida court could have reasonably concluded that Velazco failed to 

establish prejudice regarding his trial counsel’s alleged failure to investigate the 

accounts of Vieta and Pulgar. Velazco argues that the witnesses “harmed the 

credibility of the defense” when they were impeached. But Velazco fails to explain 

how, in the absence of this supposed blow to the defense’s credibility, the result of 

the trial would have been different. Velazco contends that, because neither witness 

“observe[d] most of the incident,” they had nothing useful to offer the defense. 

But even if these witnesses had nothing to offer that would support a theory of selfdefense, that contention establishes only that Vieta and Pulgar were not helpful. 

Velazco provides no reason to believe that, had his attorneys adequately 

investigated the witnesses’ unhelpfulness, the verdict might have swung in 

Velazco’s favor. 

Moreover, the state record establishes that the witnesses were useful to the 

defense. Pulgar testified that Tafarella had been “very aggressive” toward Velzaco 

before the attempted murder. And Vieta testified that Tafarella was speaking “[i]n 

a very loud voice and making [gestures]” when he came over to Velazco’s table

and that Velazco was “scared” by Tafarella’s aggression. This testimony supported

Velazco’s theory of self-defense. 

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Velazco also fails to acknowledge the overwhelming evidence against him. 

Multiple witnesses described Velazco’s sudden attack. One of the investigating 

officers testified that “all [of the restaurant] workers” he interviewed agreed about 

the events. And the prosecution offered extensive video recordings of the incident. 

Before imposing Velazco’s sentence, the trial judge explained that the video 

recordings obviated the need for speculation about the attempted murder:

[Neither t]he court, nor the jury, had to speculate on what 

occurred. . . . The restaurant . . . had extremely sophisticated video 

recordings. . . . The event showed an absolutely senseless act. And an 

act of such extreme aggression by . . . Velazco. [What] just absolutely 

amazes this Court is the speed with which [] Velazco reached into his 

pocket[,] opened or withdrew a knife . . . and proceeded on his 

ruthless attack. . . . [N]o one was holding him. No one was chasing 

him. . . . When for some reason he made a life altering decision. 

Because Velazco has failed to satisfy his burden under section 2254(d)(1) “based 

only on the record before that state court,” our inquiry is at an end. Pope, 752 F.3d 

at 1263. Cf. Madison v. Comm’r, Alabama Dep’t of Corr., 761 F.3d 1240, 1249–50 

(11th Cir. 2014) (“Nothing in Pinholster, or any other principle of habeas corpus, 

bars a District Court from conducting an evidentiary hearing where . . . (1) the 

federal claim was adjudicated on the merits in state court; (2) there is a 

determination based only on the state court record that the petitioner has cleared 

the § 2254(d) hurdle; and (3) the habeas petitioner tried, but was not given the 

opportunity to develop the factual bases of the claim in state court.”) (footnote 

omitted).

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IV. CONCLUSION

We AFFIRM the denial of Velazco’s petition.

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