FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 10, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-15696

Non-Argument Calendar

________________________

D. C. Docket No. 07-61422-CV-WPD

PETER GIDEON,

Petitioner-Appellant,

versus

DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 10, 2008)

Before ANDERSON, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Peter Gideon, a Florida state prisoner proceeding pro se, appeals the district
court’s denial of his habeas corpus petition regarding his conviction for possession

of a firearm by a convicted felon. He argues that his counsel was ineffective for

failing to call an exculpatory witness. He also contends that the state court

decision denying him relief involved an unreasonable application of federal law. 

Specifically, Gideon argues that his counsel knew that Boniface Choete was

a relevant witness and listed him on the witness list but failed to subpoena him to

testify. He argues that the failure to call Choete to testify resulted in an unfair trial

as Choete’s testimony would have established Gideon had no knowledge of the

guns police found in his truck.

We review the district court's denial of a 28 U.S.C. § 2254 petition de novo

but we are “highly deferential” to the state court's decision. Davis v. Jones, 506

F.3d 1325, 1331 (11th Cir. 2007). Pursuant to § 2254(d), as amended by the

Antiterrorism and Effective Death Penalty Act of 1996, (“AEDPA”), federal courts

may only grant habeas relief on claims previously adjudicated in state court if the

adjudication (1) resulted in a decision that was contrary to, or involved an

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

Supreme Court of the United States; or (2) resulted in a decision 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).

2
In this case, the state court ruled that Gideon's ineffective assistance of

counsel argument failed as he did not allege that Choete was available to testify,

and did not identify what testimony he would provide. See Nelson v. State, 875

So.2d 579, 583 (Fla. 2004), (a defendant must identify the testimony that would

have been provided, and allege that the witness was available to testify in order to

establish prejudice under Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984).)

The district court subsequently denied Gideon's federal petition here noting

that Gideon had failed to explain how Choete would be able to testify that Gideon

had no knowledge of the guns, and that although Choete's testimony may have

been relevant to impeach the testimony of the arresting officer, it would not have

affected Gideon's constructive possession of the firearm.

We find no error. The state court denied Gideon’s claim on its merits and

applied the correct legal rule, thus, the decision was not “contrary to” federal law.

The holding that Gideon could not show prejudice because he did not allege that

Choete was available to testify, was a reasonable application of federal law to the

facts of the case. As such, we defer to the state trial court’s decision under §

2254(d). Accordingly, the district court did not err in denying Gideon’s petition. 

AFFIRMED. 

3