FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 27, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-15061

Non-Argument Calendar

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D. C. Docket No. 05-00164-CV-BAE-4

TEXACO TEMPLE, 

Petitioner-Appellant, 

versus 

WARDEN CALVIN MORTON, 

ATTORNEY GENERAL THURBERT BAKER, 

Respondents-Appellees. 

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Appeal from the United States District Court

for the Southern District of Georgia

_________________________

 (July 27, 2007)

Before ANDERSON, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
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Texaco Temple, a Georgia prisoner, filed a pro se petition, pursuant to 28

U.S.C. § 2254, challenging his state convictions for aggravated assault and

possession of a firearm by a convicted felon. In his petition, Temple made various

claims relating to his trial counsel’s failure to introduce a gunshot residue analysis

that indicated that Temple did not have gunshot residue on his hands when he was

tested immediately following the incident that resulted in his conviction. This

Court granted a certificate of appealability (“COA”) as to “(1) Whether the results

of the firearms residue analysis were ‘presented in the State court proceeding’

under § 2254(d)(2); (2) If so, whether the district court erred in finding that trial

counsel was not ineffective for failing to introduce the results of the firearms

residue analysis at trial; and (3) Whether appellant’s appellate counsel was

ineffective for failing to call trial counsel to testify at the motion for new trial

hearing.”

“When reviewing the district court’s denial of a habeas petition, we review

questions of law and mixed questions of law and fact de novo, and findings of fact

for clear error.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). As

amended by the AEDPA, 28 U.S.C. § 2254(d) forbids federal courts from granting

habeas relief on claims that were previously adjudicated on the merits in state

court, unless the adjudication 
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(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 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). “[A] federal habeas court making the ‘unreasonable

application’ inquiry should ask whether the state court’s application of clearly

established law was objectively unreasonable.” Williams v. Taylor, 529 U.S. 362,

409, 120 S.Ct. 1495, 1521 (2000). Furthermore, we have stated that “[i]t is the

objective reasonableness, not the correctness per se, of the state court decision that

we are to decide.” Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001). 

Regarding factual findings, 28 U.S.C. § 2254(e)(1) provides that “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).

The United States Constitution provides that “[i]n all criminal prosecutions,

the accused shall enjoy the right . . . to have the Assistance of Counsel for his

defense.” U.S. Const. amend. VI. The benchmark for judging a claim of

ineffective assistance of counsel is whether counsel’s performance so undermined

the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result. Strickland v. Washington, 466 U.S. 668, 686, 104
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S.Ct. 2052, 2064 (1984). To make such a showing, a prisoner must prove two

things. Id. at 687, 104 S.Ct. at 2064. First, the prisoner must show that counsel’s

performance was deficient. Second, the prisoner must establish that the deficient

performance prejudiced the defense. Id. “Counsel’s competence . . . is presumed,

and the defendant must rebut this presumption by proving that his attorney’s

representation was unreasonable under prevailing professional norms and that the

challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S.

365, 384, 106 S.Ct. 2574, 2588 (1986) (citation omitted). There is a strong

presumption that counsel’s conduct fell within the range of reasonable professional

assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. If the record is

incomplete or unclear about counsel’s actions, then it is presumed that counsel

exercised reasonable professional judgment. Chandler v. United States, 218 F.3d

1305, 1314 n.15 (11th Cir. 2000) (en banc).

A. Ineffective Assistance of Trial Counsel

The gunshot residue analysis does not appear in the state court records until

it was “proffered,” but “not admitted as evidence,” after the state court had

determined that Temple’s second habeas petition was to be dismissed as

successive. This proffer of the gunshot residue analysis is insufficient because it

occurred after the direct appeal and first habeas courts had already addressed the
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claim, and, therefore, Temple did not present the gunshot residue analysis in any

proceeding where the state court addressed the merits of Temple’s ineffectiveassistance-of-trial-counsel claim. See 28 § 2254(d)(2). Temple’s failure to present

the gunshot residue analysis made it reasonable for the Georgia Court of Appeals

to conclude that Temple had failed to show that his trial counsel had access to, but

failed to present, the gunshot residue analysis. See 28 U.S.C. § 2254(d)(2). 

Therefore, it was reasonable for the Georgia Court of Appeals to hold that Temple

failed to show that his counsel had been deficient. See 28 U.S.C. § 2254(d)(1). 

Accordingly, we will not disturb the Georgia Court of Appeals’s finding that

Temple’s ineffective assistance of trial counsel claim failed. See id.; Strickland,

466 U.S. at 687, 104 S.Ct. at 2064.

B. Ineffective Assistance of Appellate Counsel

The Supreme Court has held that the Strickland analysis also applies to

claims of ineffective assistance of appellate counsel. Smith, 528 U.S. at 287-88,

120 S.Ct. at 765. In addition, we have stated that “[w]hich witnesses, if any, to

call, and when to call them, is the epitome of a strategic decision, and it is one that

we will seldom, if ever, second guess.” See Waters v. Thomas, 46 F.3d 1506, 1512

(11th Cir. 1995).
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The state court reviewing Temple’s first habeas proceeding reasonably

found that Temple failed to show that his appellate counsel was ineffective. 

Temple’s appellate counsel testified that he had a strategic reason for not calling

Temple’s trial counsel to testify at the motion for a new trial. However, Temple

did not cross-examine his appellate counsel or present any evidence that his

appellate counsel’s actions were not sound strategy. Therefore, Temple failed to

show that his representation was unreasonable and did not constitute sound

strategy. Accordingly, it was reasonable for the state court to find that Temple had

failed to show that his appellate counsel was ineffective. See § 2254(d)(1);

Kimmelman, 477 U.S. at 384, 106 S.Ct. at 2588; see also Strickland, 466 U.S. at

689, 104 S.Ct. at 2065. Thus, we affirm the district court’s dismissal of Temple’s

§ 2254 habeas petition.

AFFIRMED.