Bernard McGee v. Secretary, Florida Department

Filing

Opinion issued by court as to Appellant Bernard C. McGee. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 11-15490

Date Filed: 05/08/2013

Page: 1 of 2

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15490
Non-Argument Calendar
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D.C. Docket No. 4:08-cv-00411-RH-GRJ

BERNARD C. MCGEE,
Plaintiff-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
____________________________
(May 8, 2013)
Before JORDAN, KRAVITCH and ANDERSON, Circuit Judges.
PER CURIAM:
Bernard McGee is serving a 40-year sentence following his 2004 Florida
conviction for robbery with a firearm and possession of a firearm. The sole issue in

Case: 11-15490

Date Filed: 05/08/2013

Page: 2 of 2

this habeas corpus appeal is whether Mr. McGee’s appellate counsel rendered
ineffective assistance by failing to order a transcript of the voir dire proceedings.
Applying the deference required by 28 U.S.C. § 2254(d), see Harrington v.
Richter, 131 S. Ct. 770, 786-87 (2011), we affirm the district court’s denial of
habeas relief. Even if we were to assume that counsel’s failure to order the
transcript of voir dire constituted deficient performance, Mr. McGee cannot show
prejudice. As explained by the magistrate judge [D.E. 28 at 13-17] and the district
court [D.E. 32 at 3-4], Mr. McGee’s allegations do not demonstrate that his
counsel would have been able to successfully argue on appeal that the trial court
erred in not striking two jurors for cause. The district court therefore did not abuse
its discretion in denying relief without requiring the state to produce the transcript
and without holding an evidentiary hearing. See, e.g., Chavez v. Sec’y Fla. Dep’t of
Corr., 647 F.3d 1057, 1073 (11th Cir. 2011) (evidentiary hearing is not required if
habeas petitioner’s allegations fail to make out a claim).
AFFIRMED.

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