[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-15223

Non-Argument Calendar

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D.C. Docket No. 5:16-cv-00063-WTH-PRL

WAYNE EDWARD DRIGGERS, 

 Petitioner-Appellant,

 versus

SECRETARY, DEPARTMENT OF CORRECTIONS, 

ATTORNEY GENERAL, STATE OF FLORIDA, 

 Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(October 30, 2020)

Before LUCK, FAY, and EDMONDSON, Circuit Judges.

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PER CURIAM: 

Wayne Driggers, a Florida prisoner proceeding pro se,

1 appeals the district 

court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Driggers 

seeks to vacate his 2012 Florida convictions for attempted sexual battery of a child 

under 12 years’ old and for lewd and lascivious exhibition. No reversible error has 

been shown; we affirm.2

Driggers was found guilty after a jury trial. The state court sentenced 

Driggers to a total of 35 years’ imprisonment. Driggers’s convictions and sentence 

were affirmed on direct appeal. See Driggers v. Florida, 121 So.3d 1058 (Fla. 

Dist. Ct. App. 2013) (unpublished table decision).

Driggers filed a state habeas petition challenging his convictions and 

sentence. The state habeas court denied Driggers relief after conducting an 

evidentiary hearing. The state appellate court affirmed. See Driggers v. Florida, 

179 So.3d 336 (Fla. Dist. Ct. App. 2015) (unpublished table decision). 

1 We construe liberally pro se pleadings. See Tannenbaum v. United States, 148 F.3d 1262, 

1263 (11th Cir. 1998). 

2 Driggers’s motion to file a reply brief out of time is GRANTED.

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Driggers timely filed this federal habeas petition. The district court 

dismissed the petition on the merits. We granted a certificate of appealability on 

this issue: “Whether the district court erred by denying Claims 1 and 4 of Mr. 

Driggers’s 28 U.S.C. § 2254 habeas corpus petition, after determining that he 

failed to show that the state court’s rejection of those claims was contrary to, or an 

unreasonable application of, Strickland v. Washington, 466 U.S. 668 (1984).” 

When reviewing the district court’s denial of a section 2254 habeas petition, 

“we review questions of law and mixed questions of law and fact de novo, and 

findings of fact for clear error.” Rambaran v. Sec’y, Dep’t of Corr., 821 F.3d 

1325, 1330 (11th Cir. 2016). 

Under 28 U.S.C. § 2254, when the merits of a habeas claim have been 

already adjudicated in state court, our review is highly deferential to the state court. 

Crowe v. Hall, 490 F.3d 840, 844 (11th Cir. 2007). To obtain habeas relief, 

Driggers must show that the state court’s ruling “was contrary to, or involved an 

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

Supreme Court of the United States; or . . . was based on an unreasonable 

determination of the facts in light of the evidence presented in the State court 

proceeding.” See 28 U.S.C. § 2254(d); Crowe, 490 F.3d at 844. Moreover, the 

state court’s findings of fact “shall be presumed to be correct” and the habeas 

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petitioner bears “the burden of rebutting the presumption of correctness by clear 

and convincing evidence.” See 28 U.S.C. § 2254(e)(1). 

When -- as in this case -- the state appellate court affirms without an 

opinion, we “‘look through’ the unexplained decision to the last related state-court 

decision that does provide a relevant rationale,” and “presume that the unexplained 

decision adopted the same reasoning.” See Wilson v. Sellers, 138 S. Ct. 1188, 

1192 (2018). 

To prevail on a claim of ineffective assistance of counsel, a section 2254 

petitioner must show that (1) his lawyer’s performance was deficient and that (2) 

he suffered prejudice as a result of that deficient performance. Strickland v. 

Washington, 466 U.S. 668, 687 (1984). 

Under the first part of Strickland, the petitioner “must show that counsel’s 

representation fell below an objective standard of reasonableness.” Id. at 687-88. 

Our review of counsel’s performance is “highly deferential”: a “strong 

presumption” exists that “counsel’s conduct falls within the wide range of 

reasonable professional assistance.” Id. at 689.

To show prejudice under Strickland, a petitioner “must show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the 

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proceeding would have been different.” Id. at 694. A “reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id.

When the deferential standard for judging a lawyer’s performance is 

“combined with the extra layer of deference that § 2254 provides, the result is 

double deference and the question becomes whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.” Evans v. Sec’y, 

Fla. Dep’t of Corr., 699 F.3d 1249, 1268 (11th Cir. 2012) (quotations omitted). 

“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.” Id.

Applying the deferential standards under section 2254 and Strickland, we 

now consider whether the state habeas court acted “contrary to” clearly established 

federal law or relied on an unreasonable determination of the facts when it rejected 

Driggers’s ineffective-assistance-of-counsel arguments asserted in Claims 1 and 4.

Claim 1:

In Claim 1, Driggers alleged that his trial lawyer (M.J.) rendered ineffective 

assistance by failing to present evidence at trial that Driggers had “obvious” and 

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“impossible to miss” tattoos on his penis. Driggers says this evidence would have 

undermined the victim’s credibility because the victim testified at trial that she had 

seen Driggers’s penis on multiple occasions but that she had never seen tattoos on 

his penis. 

The state habeas court denied relief on this ground. The state court held an 

evidentiary hearing during which M.J. testified that -- in preparation for trial -- he 

hired a private investigator to photograph Driggers’s tattoos. By the time of trial, 

M.J. had the photographs, had disclosed the photographs to the state, and had listed 

the private investigator as a potential witness. 

M.J. also testified, however, that he believed that admitting the photographs 

into evidence would be “extremely offensive” to the jury. M.J. said he discussed 

the offensive nature of the photographs with Driggers and with Driggers’s brother 

and that Driggers agreed not to admit the photographs. 

The state habeas court concluded that not introducing the tattoo evidence 

“was clearly a strategic decision” made by M.J. and that Driggers had failed to 

show that “no competent attorney would have made the same decision.” Given 

other evidence of Driggers’s guilt, the state court also determined that Driggers had 

failed to show that the introduction of the tattoo evidence would have altered the 

outcome of the trial. 

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We review under a “clear and convincing evidence standard” the state 

court’s factual determination that M.J.’s decision not to introduce the tattoo 

evidence was one of strategy. See Kimbrough v. Sec’y, Fla. Dep’t of Corr., 565 

F.3d 796, 804 (11th Cir. 2009). We review de novo the state court’s legal 

conclusion about whether M.J.’s tactical decision was reasonable. See id. We 

have recognized that “[i]t is especially difficult to succeed with an ineffective 

assistance claim questioning the strategic decision to trial counsel who [was] 

informed of the available evidence.” Nance v. Warden, Ga. Diagnostic Prison, 922 

F.3d 1298, 1302 (11th Cir. 2019).

The record supports the state habeas court’s conclusion that M.J. made a 

reasonable strategic decision not to introduce the photographs or testimony about 

Driggers’s penis tattoos. M.J. had taken the necessary steps to investigate and to 

introduce the tattoo evidence but decided -- after considering the available 

evidence and discussing the issue with Driggers -- that the photographs would be 

unduly offensive to the jury. We have said that decisions about what issues to 

pursue and what witnesses to call during trial “are, without a doubt, strategic.” See 

Nance, 922 F.3d at 1302-03. M.J. also believed the photographs and testimony of 

the private investigator would have little impeachment value absent evidence 

establishing that the tattoos had in fact been present at the time of the charged 

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offenses. M.J.’s professional assessment that the offensive nature of the tattoo 

evidence outweighed the evidence’s potential beneficial value was not objectively 

unreasonable. 

On this record, we cannot say that the state habeas court’s ruling on Claim 1

was contrary to or an unreasonable application of clearly established law or based 

on an unreasonable determination of the facts. 

Claim 4:

In Claim 4, Driggers alleged that his trial lawyer performed deficiently by 

failing to inform him adequately about his right to testify on his own behalf. 

The state habeas court denied this ground for relief. At the evidentiary 

hearing, Driggers testified that M.J. never discussed with him whether he should 

testify in his own defense. M.J. testified that he could not recall specifically 

discussing this issue with Driggers. But M.J. testified that he “always” talks with 

his clients -- both before trial and during trial -- about whether they wanted to 

testify and about the advantages and disadvantages of taking the stand. M.J. said 

he would have discussed with Driggers the likely difficulty Driggers would have 

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answering questions about both the victim’s testimony and the testimony of a 

second witness about an earlier similar incident involving Driggers. 

The state habeas court said that “[a]lthough [M.J.] had no independent 

recollection of the conversation, his testimony was unwavering that he would have 

discussed these matters with the defendant.” To the extent Driggers’s testimony 

conflicted with M.J.’s testimony, the state habeas court found that M.J.’s testimony 

was more credible: a finding based on the state judge’s observations during the 

evidentiary hearing of each witness’s demeanor and memory.

In the alternative, the state habeas court also determined that -- even if it

found Driggers credible and accepted Driggers’s testimony as true -- Driggers 

failed to demonstrate prejudice under Strickland. The state court described 

Driggers as having testified during the evidentiary hearing that “had he been 

informed of his rights concerning testifying at trial, he did not know if he would

have testified or not; rather, he could have made an informed decision.” Based on 

this testimony and other evidence of Driggers’s guilt, the state habeas court 

concluded that Driggers could not show a “reasonable probability that, but for 

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

different.” 

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The state habeas court’s decision was neither contrary to or an unreasonable 

application of Strickland or based on an unreasonable determination of the facts. 

Even assuming (without deciding) that M.J. performed deficiently and failed to 

advise Driggers of his right to testify, Driggers has demonstrated no reasonable 

probability that -- but for that error -- he would have been found not guilty. 

To prove prejudice, Driggers would have to show two critical components: 

(1) that he would in fact have testified in his own defense had he been informed 

adequately about his right to do so, and (2) that his proposed testimony would have 

altered the outcome of the trial. In the light of Driggers’s sworn testimony that he 

was unsure whether or not he would have testified, Driggers cannot satisfy his 

burden of showing prejudice. 

Nor has Driggers shown a reasonable probability that his proposed 

testimony -- describing his penis tattoo and asserting that the tattoo was present 

before he met the victim -- would have altered the outcome of the trial. Driggers 

says his proposed testimony would have damaged the victim’s credibility. But the 

record shows that M.J. did challenge the victim’s credibility by introducing 

evidence that the victim had given conflicting statements to authorities, used 

language not consistent with her age, and reported Driggers’s conduct only after 

she got in trouble with her parent. Moreover, Driggers’s proposed testimony 

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would not have rebutted the victim’s testimony describing the details of Driggers’s 

offense conduct or called into question the non-victim witness testimony that 

Driggers had engaged in similar conduct with her. 

Because Driggers failed to demonstrate that he was prejudiced by M.J.’s 

purportedly deficient performance, he is unentitled to habeas relief on this claim.

The district court committed no error by determining that the state habeas 

court applied reasonably the Strickland standard. We affirm the denial of 

Driggers’s 28 U.S.C. § 2254 petition.

AFFIRMED.

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