           Case: 13-15931   Date Filed: 08/12/2014   Page: 1 of 6


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-15931
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 7:12-cv-02874-RDP-TMP



WILLIE LEON BANKS,

                                             Petitioner - Appellant,

versus

WARDEN,
ATTORNEY GENERAL OF THE STATE OF ALABAMA,

                                             Respondents - Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                            (August 12, 2014)

Before WILSON, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Willie Banks, a pro se Alabama state prisoner, appeals the district court’s

denial of his habeas petition. See 28 U.S.C. § 2254. The district court granted Mr.

Banks a certificate of appealability as to “whether he received ineffective

assistance of trial counsel when counsel failed to discover and marshal evidence

indicating that [he] was incarcerated during the time the victim testified she was

raped by him, even though [Mr. Banks] never advised trial counsel that he was

incarcerated.” See D.E. 23 at 1.

      Mr. Banks argues on appeal that a reasonable investigation would have

uncovered that he could not have committed the rape because he was incarcerated

in a secure state prison. We affirm the district court’s denial of § 2254 relief.

      Mr. Banks was convicted of rape in the first degree on April 25, 2007,

following a jury trial, and the trial court sentenced him as a habitual offender to life

in prison without possibility of parole. At trial and at sentencing, he was

represented by attorney Tessie Clements. Mr. Banks appealed his conviction,

asserting that the trial court had erred in denying his motion for acquittal based

upon insufficiency of the evidence. The Alabama Court of Criminal Appeals

affirmed, and the Alabama Supreme Court denied his petition for certiorari.

      In 2009, Mr. Banks filed a petition pursuant to Alabama Rule of Criminal

Procedure 32, claiming that Ms. Clements rendered ineffective assistance for

failing to conduct a proper investigation that would have led to evidence that he


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was incarcerated at the time of the alleged rape. The trial court appointed counsel

for Mr. Banks, and held several hearings on the petition. The trial court denied the

petition, emphasizing that Mr. Banks never told counsel that he was in custody at

the time that the victim testified she was raped. The Alabama Court of Appeals

affirmed the denial of the Rule 32 petition, and the Alabama Supreme Court

declined review.

      On August 31, 2012, Mr. Banks filed the instant pro se § 2254 petition. The

district court denied Mr. Banks’ petition, agreeing with the unwillingness of the

state court to impose an independent duty to research Mr. Banks’ prior

incarceration history. The district court also ruled that “even if that duty existed,

[Mr. Banks] failed to demonstrate prejudice because he . . . failed to show that his

‘custody’ was more confining than a type of work release, which still left him with

sufficient freedom to commit the rape.” D.E. 11 at 7.

      Federal courts cannot grant habeas relief unless the state court’s decision

was (1) contrary to, or an unreasonable application of, clearly established federal

law as defined by Supreme Court precedent, or (2) based on an unreasonable

determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d). We

review the district court’s decision de novo, but “owe deference to the final state

habeas judgment.” See Hall v. Thomas, 611 F.3d 1259, 1284 (11th Cir. 2010).




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      In order to succeed on an ineffective assistance of counsel claim, a petitioner

must show both (1) that his “counsel’s performance was deficient” and (2) that

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

466 U.S. 668, 687 (1984). “[C]ounsel is strongly presumed to have rendered

adequate assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Id. The Strickland analysis is not applied de novo, “but

rather through the additional prism of AEDPA deference.” See Lawrence v Sec’y,

Fla. Dep’t of Corr., 700 F.3d 464, 477 (11th Cir. 2012).

      Mr. Banks has not demonstrated that his trial counsel performed deficiently

in failing to discover evidence that would establish that he was incarcerated in

spring of 2001, the time at which the victim testified the rape occurred. Under a

Strickland analysis, “the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.” Id.

at 689. Indeed, “[d]efense counsel are allowed a considerable breadth to choose

their trial strategies.” Fleming v. Kemp, 748 F.2d 1435, 1451 (11th Cir. 1984).

      “The reasonableness of counsel’s actions may be determined or substantially

influenced by the defendant’s own statements or action. Counsel’s actions are

usually based . . . on information supplied by the defendant.” Strickland, 466 U.S.

at 691. Here, Mr. Banks did not tell Ms. Clements that he was incarcerated during

the time of the attack; rather, he told her that he was on a work release program or


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in a halfway house or group home. See, e.g., Holladay v. Haley, 209 F.3d 1243,

1251-52 (11th Cir. 2000) (“Counsel have a duty to investigate but this duty is

confined to reasonable investigation); Funchess v. Wainwright, 772 F.2d 683, 689-

90 (11th Cir. 1985) (finding counsel was not ineffective for failing to investigate a

defendant’s prior mental health difficulties because he never told counsel of any

problems and the competency evaluation did not indicate that any problems

existed).

      Additionally, Ms. Clements would not have known prior to trial that the

victim would specifically testify that she was raped in the spring of 2001, because

the victim had previously given conflicting dates as to the date of the attack. In

light of this conflicting information, Ms. Clements testified in the Rule 32 hearings

that she had decided to challenge the victim’s credibility, rather than trying to

establish Mr. Banks’ whereabouts at the time of the attack. This decision was

reasonable trial strategy. See Strickland, 466 U.S. at 689.

      Even if we were to reach the prejudice prong of Strickland, Mr. Banks

cannot demonstrate 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. The evidence presented at the Rule 32 hearing indicates that even if Ms.

Clements had investigated, she would have discovered that Mr. Banks was in a

halfway house or work release program and, therefore, could have had sufficient


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ability to rape the victim. Given this information and the fact that the victim

testified that Mr. Banks raped her, there is no reasonable probability that, but for

Ms. Clements’ actions, the result would have been different. Mr. Banks therefore

cannot demonstrate prejudice.

      In sum, the state court’s decision was not an unreasonable application of

federal law or an unreasonable determination of the facts. Accordingly, we affirm

the district court’s denial of § 2254 relief.

      AFFIRMED.




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