French v. Carter (828 F. Supp. 2d 1309, 2012)

ORDER

GEORGE R. SMITH, United States Magistrate Judge.

Convicted in state court for aggravated child molestation, French v. State, 288 Ga.App. 775, 655 S.E.2d 224 (2007), Eugene French petitions this Court for 28 U.S.C. § 2254 habeas relief, contending that his lawyer provided him with ineffective assistance of counsel (IAC). Doc. 1. As it did once before, doc. 8, the State moves to dismiss the petition as untimely. Doc. 45. The petition is untimely but equitable tolling applies. And further briefing is required.

Distilled from his multiple submissions, docs. 1, 5, 15, 16, 39, 53 & 55, French’s core argument is this: All of the evidence against him came from the testimony of two women — one his daughter (B.F.), the other her girlhood friend (A.S.) — about his molestation of them when they were 10 or 11 (they cannot remember for sure) years old. Both testified about it some eight or nine years after the fact, neither had contemporaneously complained when it happened, and no one could even say with reasonable precision when he committed the crimes. Doc. 9-5 at 97-100 (February 14, 2005 indictment: “between January 1, 1997 and December 31, 1999.”); see also doc. 9-7 at 16 (June 28-29, 2006 trial transcript).

French, both victims claimed, anally-penetrated them on different nights in his home, but while other people slept in nearby rooms. Yet, neither child cried out, and B.F. testified that she was not awakened by her panties being removed but awoke only after penetration. Nor did she claim to have been drugged beforehand.

French, a career military veteran with no criminal record, testified that his vindictive “ex” (his daughter’s mother) had been gunning for him because of child support and other issues, and had put B.F. up to it. (He is unclear about A.S.) He also claimed that B.F. had once falsely accused him of a felony (kidnapping her), but the trial judge excluded that evidence. The French appellate court declined to reach the merits of the false-kidnapping charge because defense counsel failed to perfect the record, French, 288 Ga.App. at 777, 655 S.E.2d 224, though it “nevertheless note[d] that [t]he state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury. OCGA § 24-9-68.” Id. French contends that the outcome here would have been different but for that IAC-level error. He only obliquely complains about certain record photos of his penis that were also excluded at trial and not raised on appeal — French does not mention them.

French raised these issues before the state habeas court. It simply ignored his penis photos issue. On the IAC claim, it recited counsel’s generalized testimony that he did a competent job, then ruled that counsel did a competent job — without explaining why. French also raised many other issues, as he does here. As this Court was recently reminded in Walker v. United States, 438 Fed.Appx. 855, 856 (11th Cir.2011), it is bound by Clisby v. Jones, 960 F.2d 925 (11th Cir.1992) (en banc), to reach all habeas issues raised before it, even at the expense of brevity.

I. TIMELINESS

The Court’s first Report and Recommendation (R & R) applied 28 U.S.C. § 2244(d)(l)(A)’s one year limitations period to grant the state’s first motion to dismiss. Doc. 17, reported at 2011 WL 675129. That one-year clock ticks from the moment a state court conviction becomes final. It is stopped while the defendant litigates his state collateral appeal (state habeas) remedies, i.e., during the period a “properly filed” petition for state relief is pending. Wall v. Kholi, — U.S. —, 131 S.Ct. 1278, 1283, 179 L.Ed.2d 252 (2011) (quoting § 2244(d)(2)). But states impose deadlines for filing such things, so when a prisoner misses one of those deadlines the federal clock keeps ticking and is stopped only when he makes his next filing. Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir.2001). When the state collateral appeal process ends, the defendant has whatever remains of that 365-day period to file his § 2254 petition. Gaps anywhere along the way, then, can be fatal. See, e.g., Hackett v. Parker, 2012 WL 380354 at *4 (N.D.Okla. Feb. 6, 2012).

Here the state focused on just such a gap. It insisted that French’s state court conviction became final after the French opinion issued. French was issued on December 7, 2007, and state appellate rules gave French another 10 days to further appeal, but French did not do so. The state concluded that he thus had until December 17, 2008 to file his state habeas petition. Since he did not file it until December 22, 2008, he used up his 365 days before he even got to this Court. Doc. 8. This Court agreed, but noted

that in the state habeas court French filed, possibly simultaneously with his state habeas petition, an [in forma pan peris (IFP)] motion that was marked by that court’s clerk “RECEIVED DEC 01 2008.” Yet, on the same page, the IFP motion is marked “FILED IN OFFICE DEC 22, 2008.” This Court has based its ruling above on the latter date, which is the date the State says his petition was filed. But if in fact French submitted his state habeas petition for filing at the same time he filed his IFP motion, then if his state habeas petition is deemed filed on December 1, 2008, his § 2254 petition here would be timely.

2011 WL 675129 at *2. Still,

French seem[ed] to accept the State’s contention that his state habeas petition was not filed until December 22, 2008, for he [did] not challenge that date or make any reference to the “DEC 01 2008” date stamp on his IFP motion. So, [the undersigned concluded,] the date discrepancy issue is waived. See Davis-O’Brien v. Astrue, 415 Fed.Appx. 137, 139-40 (11th Cir.2011) (claims not raised in district court are waived on appeal).

Id.

At first the district judge agreed and thus accepted the R & R, doc. docs. 27-29, reported at 2011 WL 841337, but then vacated that ruling upon French’s Fed. R.Civ.P. 72(b) Objection, docs. 26 & 30, then rejected the R & R and denied the dismissal motion. Doc. 31. The district judge “found that the state habeas court clerk’s office received both of French’s filings [his state habeas petition and accompanying IFP motion] on December 1, 2008 — within the one year limit.” Doc. 36 at 1, reported at 2011 WL 1790778. The state moved for reconsideration. Doc. 33. As described by the district judge, French’s warden asserted that

his office, and not the clerk’s office, stamped “Received Dec 01 2008” onto French’s IFP application to note when it received the document from French to mail to the [State Habeas] Court. Respondent [thus] argues that French’s case must be dismissed because his state habeas petition did not reach the [state habeas court] clerk’s office until after the one year period expired.

In other words, Respondent argues that French’s case must be dismissed because Respondent sat on French’s habeas petition for the final seventeen (17) days of French’s one year period before forwarding it to the court. This conflict of interest is one reason the federal government’s prisoner mailbox rule makes the date on which a prisoner delivers his filing to prison authorities for mailing the operative filing date. See Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).

Doc. 36 at 1 (footnote added; emphasis original and added).

Nevertheless, the district judge was prepared to rule in the state’s favor. Georgia, he explained, does not follow the federal mailbox rule, so French’s state habeas petition was filed on “ ‘the date upon which the paper [was] handed to the [state habeas court] clerk to be filed.’ Lavan v. Philips, 184 Ga.App. 573, 574, 362 S.E.2d 138 (1987).” Doc. 36 at 1; see also Hall v. Oubre, 2010 WL 5652769 at *3 (S.D.Ga. Dec. 30, 2010) (“the ‘mailbox rule’ does not apply to the initial filing of state habeas petitions in Georgia.”). Yet, the judge denied the reconsideration motion — only because the warden had failed to “attach an affidavit or personally sign his motion. [The warden’s] motion would require the Court to give dispositive weight to a factual representation made by [his] attorneys one month after the Court ruled on this matter. The Court will not overturn its ruling on such a showing.” Doc. 36 at 2.

That was a cue for the state to in fact supply the missing affidavit. Alas, it did not. Meanwhile, to move the case along, the district judge directed it to respond to French’s petition on the merits. Id., reported at 2011 WL 1558124 at *2. It did. Doc. 37-1. But in its response it continued to insist “that Petitioner filed a state habeas corpus petition on December 22, 2008, after the one-year federal limitations already had expired. (Resp. Ex. 2.)” Id. at 1; see also id. at 2 (“Respondent respectfully maintains that the petition was untimely filed.”).

Since the state obviously intended to pursue the untimeliness issue on appeal, the undersigned directed it to file all evidence (affidavits, etc.) supporting its assertion that French untimely filed his 2254 petition. Doc. 41, reported at 2011 WL 2491595. The state then tendered the missing affidavit. Doc. 42-1. But it did not then renew its untimeliness-based, motion to dismiss. So, the Court again nudged it along. Doc. 44 (Order directing it to renew its motion). The state then renewed its dismissal motion, doc. 45, which French opposes. Doc. 50. He has also filed, and the Court denies, an incomprehensible motion to strike. Doc. 51.

The state now reiterates its earlier argument. Doc. 45. It again insists that French failed to stop the clock when he failed to further litigate French, as required by Georgia rules, within 10 days of the December 7, 2007 French ruling. Doc. 45-1 at 8. It again insists he had until December 17, 2008, to file his state habeas petition, so his December 22, 2008 filing is too late. To that end, the warden’s “Business Manager” certifies inmate account balances (and such certifications are required by courts considering IFP applications). Doc. 42-1 at 1. She swears that the December 1, 2008 stamp on French’s state court IFP motion is his prison’s filing stamp, and not the state habeas court’s stamp. And it is her practice to process such IFP forms and turn them around to the submitting inmate within 24 hours. Doc. 42-1 at 2-3.

The warden’s office, asserts the state, thus processed French’s IFP paperwork within 24 hours and therefore did not materially contribute to his delay in filing his state habeas opinion. So, he must bear his own failure to stop 2244(d)(l)(A)’s one-year clock. And since the December 22, 2008 state court filing stamp controls, the state concludes, French was five days late, thus time-barring his § 2254 petition. Doc. 45-1 at 11-12.

French challenges none of this. Those facts are now established. Nor does he dispute the state’s reiteration of federal and state statutory time limits applicable here. That is, the judgment against him became final upon “the conclusion of direct review or the expiration of the time for seeking such review,” § 2244(d)(1)(A). French thus had ten days after the Georgia Court of Appeals affirmed his conviction to, under Georgia Supreme Court Rule 38, file a notice of intent to apply for certiorari to the Georgia Supreme Court. He did not.

But when exactly was his conviction affirmed? For the state, the French opinion’s December 7, 2007 publication date is determinative, and it has made its time computations based on that. French says the date of the Georgia Court of Appeal mandate remittitur controls. That was issued December 28, 2007, and entered in the trial court on December 31, 2007. Doc. 50 at 1-2. So, he concludes, the one-year clock did not start to tick until December 28, 2007, if not the 31st. Id. at 1-2.

The state has not responded. Nevertheless, French’s “judgment became final when his time for seeking review with the [Georgia Supreme Court] expired.” Gonzalez v. Thaler, — U.S. —, 132 S.Ct. 641, 656, 181 L.Ed.2d 619 (2012). Here French never took his case beyond his reconsideration motion before the Georgia Court of Appeals. That court denied reconsideration on December 7, 2007, French, 288 Ga.App. at 778, 655 S.E.2d 224, so French thus had, per Georgia Supreme Court rule 38, ten days (until December 17, 2007) to pursue a writ of certiorari from that court. Thus at the end of that ten day period (December 17, 2007), the one-year clock began to run against him. Gonzalez, 132 S.Ct. at 656.

Based on the “December 22, 2008” file-stamp on the state habeas petition, it is not timely. But French has submitted proof (a U.S. Post Office “Certified Mail Receipt”) and has personally affirmed that he mailed his state habeas petition on December 9, 2008. Doc. 52 at 2, 6. Moreover, a “Wilcox Co. Courthouse” official signed for it on December 10, 2008. Id. at 6. That places French well before the December 17, 2008 deadline on which the state now stands. And the state, he reminds, has not rebutted or otherwise challenged this. Doc. 56 at 3; doc. 57 at 1.

The district judge did rule that Georgia does not follow the mailbox rule. But French is proceeding pro se, so his pleadings are construed liberally, Sanders v. United States, 113 F.3d 184, 187 (11th Cir.1997), and in substance he argues equitable tolling. Doc. 52 at 4 (“It is understood that a pro se petitioner in a habeas proceeding should be afforded some lenity as he is not a professional in the field of law”). His unrebutted proof shows that the state habeas court clerk received his petition on December 10, 2008, but evidently did not get around to opening his envelope and stamp-filing it until December 22, 2008. Id. at 2.

“There are no bright lines in determining whether equitable tolling is warranted in a given case. Rather, the particular circumstances of each petitioner must be taken into account.” Pabon v. Mahanoy, 654 F.3d 385, 399 (3rd Cir.2011) (applying Holland). Given French’s unrebutted showing that (a) he mailed off his petition with 8 days to spare; (b) it was reasonable to expect it to be delivered within 3-5 days; (c) in fact it arrived the next day, and (d) a court clerk’s putative indolence obstructed his timely filing (by receiving it on December 10 but not stamp-filing it until December 22), that constitutes adequate diligence on French’s part, plus a sufficiently extraordinary circumstance (not to mention a § 2244(d)(1)(B), state-created impediment) to support equitable tolling. Cf. Knight v. Schofield, 292 F.3d 709, 711 (11th Cir.2002) (tolling where clerk of state supreme court failed to notify petitioner of decision denying relief, as clerk had promised, petitioner then demonstrated diligence in pursuing information when it did not do so). “The diligence required for equitable tolling purposes,” after all, “is reasonable diligence ... not maximum feasible diligence.” Holland, 130 S.Ct. at 2565 (quotes and cites omitted). Hence, even under the stricter reading of the limitations law, the state’s Second Motion to Dismiss nevertheless must be denied. Doc. 45. That, in turn, requires this Court to VACATE its earlier ruling that denied his petition amendment motion (doc. 5) as moot because his petition was thought untimely. See doc. 18 at 4; see also docs. 15, 16, 39 & 55 (unopposed amendments).

II. MERITS

To reiterate, the district judge directed the state to respond to French’s § 2254 petition on the merits, and it has. Docs. 37 & 43. Summarized, the evidence against French shows:

that when B.F., French’s biological daughter, was 15 years old and living in Michigan with her mother, she entered a poetry contest and submitted a poem entitled, “A Child’s Pain.” A teacher who read the poem became concerned, based on the poem’s content, that B.F. may have been the victim of child molestation. As a result of the teacher’s concern, B.F. was interviewed by Michigan social services personnel.

During the interviews, B.F. revealed that she had lived with French when she was 11 or 12 years old and that he had in fact molested her. She recounted a specific instance when French entered her bedroom one night and sodomized her by inserting his penis inside of her anus. B.F.’s disclosures launched a police investigation which further led police to A.S., B.F.’s childhood friend.

When A.S. was interviewed, she was living in Florida and had not seen or spoken to B.F. in many years. As soon as police broached the subject with A.S., she began to cry. In a written statement, A.S. disclosed that French had molested her when she attended a slumber party for B.F.’s birthday at French’s residence. A.S. recalled that while the others were either sleeping or playing games, she found herself alone with French in his bedroom, with the lights off. As she lay on the bed with French, he sodomized her by inserting his penis inside of her anus. Based upon this evidence, the jury convicted French of two counts of aggravated child molestation.

French, 288 Ga.App. at 775, 655 S.E.2d 224.

At both trial and on appeal French was represented by retained counsel, Lorenzo C. Merritt. Doc. 9-5 at 10. On direct appeal, Merritt contended “that the trial court erred in denying his motion for issuance of out-of-state subpoenas duces tecum [seeking background information]; in denying his motions for continuance; and in excluding evidence of an alleged false report by B.F. that French had kidnapped her and evidence that B.F.’s sister had been molested by her stepfather.” French, 288 Ga.App. at 775, 655 S.E.2d 224. According to the appellate court, French failed to satisfy the legal requirements for the subpoenas, failed to show that the trial court abused its discretion in denying his continuance motions, and failed to perfect the record on the “false kidnapping charge” claim. Nor did he show abuse of discretion on the “stepfather molestation” issue. Id. at 775-778, 655 S.E.2d 224.

Proceeding pro se, French next presented his collateral appeal claims to the state habeas court. Doc. 9-2. His habeas petition there raised three claims on his preprinted habeas petition form:

GROUND ONE: Ineffective assistance of counsel. Counsel failed to prepare witnesses for trial, notify court of former prosecution of case, use conflicting evidence to impeach witness, and induce reasonable doubt or reversible error, failed to request mistrial due to judicial bias and court error. Counsel failed to assert any and all reasonable grounds for appeal. Failed to obtain expert witnesses for trial.

GROUND TWO: Double Jeopardy. Case was previously tried and dismissed in the state of Michigan.

GROUND THREE: Due process. Insufficiency of evidence.

Doc. 9-12 at 4. The next page of that petition bears a section preprinted with this: “Part III: OTHER CLAIMS NOT PRESENTED TO A COURT BEFORE THIS.” Doc. 9-2 at 5. There French wrote: “None of the grounds were presented due to ineffective counsel.” Id. He then expanded on his claims in a supporting, prehearing amendment, id. at 15-34, which he read at the state habeas evidentiary hearing, alleging that Merritt

[flailed to assert any and all reasonable grounds for appeal, counsel’s lack of investigation and preparedness was inadequate for trial, counsel failed to prepare witnesses for trial, counsel failed to inform court of former prosecution, failed to use evidence of previous denial and false allegations, seek witness impeachment, failed to use conflicting evidence to induce reasonable doubt, reversible error or seek witness impeachment, failed to request judge to recuse himself for judicial bias.

Doc. 9-5 at 5.

French presented evidence and elaborated on his claims at the evidentiary hearing. Id. at 20-43. The state habeas judge subsequently denied him relief. Doc. 9-3. He recited governing standards, then determined that French raised just three grounds. Id. at 2-4. The judge denied ground three — French’s evidentiary insufficiency claim — because Georgia law does not recognize it in habeas. Id. at 3. And since Merritt failed to raise ground two (encompassing two trial court errors) on direct appeal, it was procedurally barred. Id. at 3-4.

The habeas judge acknowledged that IAC can supply cause for overcoming procedural default. Doc. 9-3 at 4-5. Hence, “ground one” — that Merritt was ineffective — was pivotal for French since IAC essentially enables the back-door review of claims that competent counsel should have raised. In denying that claim, the habeas judge recapitulated Merritt’s generalized testimony about his own performance:

[Mjerritt testified that he and petitioner had been in constant contact, and that there was a complete exchange between the two of them..... [H]e did “all the customary things” that he felt he should do in a case of such a nature.... In regards to the appeal, Mr. Merritt testified that he and the petitioner had discussions about it, and were “pretty much in accord.” He testified that he reviewed the record, and then tried to pursue the strongest and most meritorious grounds on which he would have an opportunity to get a reversal____ He testified that he ultimately felt that he had raised the most meritorious and viable issues on appeal.

Id. at 7. Then — without explaining why Merritt performed effectively, much less citing to the trial transcripb — the judge ruled

that the petitioner has failed to establish that counsel was in any way deficient or unreasonable in his representation of the petitioner at trial, or in determining which errors to assert on appeal. This Court further finds that the petitioner has failed to show that there existed a reasonable likelihood that but for counsel’s alleged errors the outcome of the petitioner’s case would have been significantly different. Therefore, this Court finds that the petitioner did not receive ineffective assistance of counsel.

Id. at 7.

Rather than explain why Merritt was not ineffective, the ruling, once stripped of its declaratory conclusions, simply travels on hollow reasoning: Merritt was not ineffective on a particular issue ... because he said he did a competent job generally. That IAC ruling, in turn, drove the judge’s application of procedural default to French’s two non-IAC habeas claims: “Furthermore, this Court finds that petitioner has not shown sufficient cause and prejudice [ (i.e., he showed no IAC) ] to warrant this Court to overlook any default from failing to raise these issues on direct appeal. Therefore, this Court finds that ground two [which raised those claims] is proeedurally defaulted.” Id. at 4. Finally, and as will be shown below, the judge simply did not reach some of French’s habeas claims.

Merritt initially raised the following § 2254 claims here (verbatim):

Ground one: Evidence obtained by irreparable misidentification and insufficient evidence. Complainant testified to not seeing [French] before, during, or after incident. That [French] was not there when she went to sleep. And that there were other males in the house. Ground two: Conviction [was] obtained by violation of protection against double jeopardy. Petitioner was prosecuted in Michigan and the case was dismissed at bench trial, afterwards Georgia prosecuted and convicted petitioner for the same allegations.

Ground three: Conviction obtained by collaterally estopped issues. Petitioner was prosecuted in Michigan and case was dismissed at bench trial. After-wards Georgia prosecuted and convicted petitioner for same allegations.

Ground four: Conviction obtained by violation of the requirement for the trial court to have personal jurisdiction to prosecute. Petitioner was prosecuted in Michigan and the case was dismissed at bench trial but the state of Georgia never appealed the dismissal, thus] leaving Michigan with jurisdiction.

Doc. 1 at 6.

In his motion to amend, doc. 5 — unopposed per Local Rule 7.5 but previously denied as moot given the Court’s untimeliness ruling (doc. 18) — French for the most part has amplified on his original IAC claims. Inexplicably numbering his later briefed claims starting at Ground Ten, he lists a smorgasbord of trial errors by counsel in an effort to overcome procedural default and thus back-door those claims through an IAC finding. He also adds (numerically skipping over grounds eleven through twelve) “Ground thirteen: Conviction obtained by violation of jurisdiction requirement supporting facts: Case in Michigan for same crime was dismissed at bench trial and Michigan court still has jurisdiction over petitioner.” Id.

In a later brief (he has basically self-amended his petition but the state has not objected), doc. 58, as amended, doc. 55, he challenges his conviction on venue grounds, essentially elaborating on Grounds Two, Three and Four above — his molestation conduct in Michigan had nothing to do with Georgia, and thus the prosecutor in his case failed to establish venue. Id. at 1-2. He also argues that Merritt was ineffective for failing to challenge venue. Id. at 3-4.

Finally, French raises additional grounds in supplemental filings, docs. 15, 16, 39, to which the state has also responded. Docs. 37, 37-1 & 43. Since the state has not opposed the act of raising additional claims (but instead opposes them on the merits), the Court has not applied Fed. R.Civ.P. 15(c)(1)(B). See Davenport v. United States, 217 F.3d 1341, 1344 (11th Cir.2000) (‘“Relation back’ causes an otherwise untimely claim to be considered timely by treating it as if it had been filed when the timely claims were filed.”); Johnson v. United States, 2011 WL 3320565 at *3 n. 6 (S.D.Ga. Aug. 1, 2011).

A. Governing Standards

In both his direct and collateral appeals the Georgia courts issued written opinions. Rulings on fully adjudicated issues must “be given the benefit of the doubt,” Felkner v. Jackson, — U.S. —, 131 S.Ct. 1305, 1307, 179 L.Ed.2d 374 (2011) (quotes and cite omitted), which means this Court cannot disturb them unless they

(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) (emphasis and footnote added).

This is a highly deferential, “difficult to meet” standard that petitioners must overcome. Harrington v. Richter, 562 U.S. —, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011); Cullen v. Pinholster, — U.S. —, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). “[A] state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Har rington, 131 S.Ct. at 786-87, quoted in Hill v. Humphrey, 662 F.3d 1335, 1345 (11th Cir.2011) (en banc).

And “2254(d) applies even to summary state court opinions, as well as to opinions that do not cite Supreme Court precedent.” Means v. Sec’y, Dep’t of Corrs., 433 Fed.Appx. 852, 853 (11th Cir.2011) (citing Harrington, 131 S.Ct. at 784). So if a state court’s decision is unaccompanied by any legal analysis or explanation, the petitioner must still show that there was no reasonable basis for the state court to deny relief. Johnson v. Sec’y, Dep’t of Corrs., 643 F.3d 907, 930 n. 9 (11th Cir.2011). This Court also must presume state court factual determinations to be correct; petitioners must rebut that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e).

Ineffective assistance of counsel (IAC) claims, even when reviewed de novo, are subject to a standard that packs its own internal layer of deference. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[A] defendant must show both deficient performance by counsel and prejudice.” Knowles v. Mirzayance, 556 U.S. 111, 121, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009). Thus, he must show that his lawyer’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Courts apply a “strong presumption” that counsel’s representation was within the “wide range” of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052. Strickland error must be so serious “that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. On the prejudice prong the petitioner must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

“‘Surmounting Strickland’s high bar is never an easy task,’ ” Harrington, 131 S.Ct. at 788 (quotes and cite omitted), and no hindsight or second-guessing is permitted. Id. But where a state court has already ruled on IAC claims, the petitioner’s burden of

[establishing that [its] application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both ‘highly deferential,’ id., at 689 [104 S.Ct. 2052]; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is ‘doubly’ so, Knowles, 556 U.S., at 123, 129 S.Ct., at 1420. The Strickland standard is a general one, so the range of reasonable applications- is substantial. 556 U.S., at 123 [129 S.Ct., at 1420]. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2251(d). When § 2251(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.

Id. at 788 (emphasis added). Because this “[d]ouble deference is doubly difficult for a petitioner to overcome ... 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.” Johnson, 643 F.3d at 911; Hamner v. Deputy Sec’y of the Fla. Dep’t of Corrs., 438 Fed.Appx. 875, 880 (11th Cir.2011) (“Our standard of review is ‘doubly deferential’ when ‘a Strickland claim [is] evaluated under the § 2254(d)(1) standard.’”) (quoting Knowles, 129 S.Ct. at 1420).

Before the state court French had to meet the Strickland standard by establishing both that (a) his counsel’s performance was deficient in that “it fell below an objective standard of reasonableness,” and (b) but for the attorney’s errors, there is a reasonable probability that the result of the proceeding would have been different. Harrington, 131 S.Ct. at 787. He thus was required to plead and prove that (a) counsel erred; (b) no reasonable lawyer would have done what her lawyer did; and (c) his act or omission was outcome-altering. Borden v. Allen, 646 F.3d 785, 822-23 (11th Cir.2011) (IAC claim denied because petitioner failed to plead it with adequate specificity).

Before this Court, he must show that the state court’s application of the Strickland standard was “unreasonable” which “is different from an incorrect application of federal law.” Harrington, 131 S.Ct. at 785 (emphasis in original). Indeed, “even a strong case for relief does not mean the state court’s contrary conclusion is unreasonable.” Id. at 786. A state court’s decision is unreasonable only if “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents.” Harrington, 131 S.Ct. at 786. In other words, if “there is any reasonable argument that counsel satisfied Strickland’s deferential standard,” federal habeas relief must be denied. Id. at 788; Hunt, 666 F.3d at 729; Johnson, 643 F.3d at 910-11.

B. Analysis

As noted earlier, a core theme animates French’s petition — that his accusers’ memories were eroded by time and his daughter’s was corrupted by a malicious “ex.” B.F. was 11 or 12 when French molested her, and 19 when she testified about it. Doc. 9-7 at 60. Her co-victim friend, AS., was 10 and 18, respectively. Both, he contends, completely fabricated their testimony, and all these things put together spell insufficient evidence to support his conviction. Hence, he reasons, counsel was ineffective in litigating this and the state courts ruled unreasonably on this issue. Doc. 9-2 at 17-18; doc. 5 at 1; doc. 15 at 9-12; doc. 55 at 3-4.

But in his effort to show evidentiary insufficiency to support his IAC claim (i.e., that Merritt failed to adduce key impeachment and “venue” evidence which would have produced reasonable doubt and thus rendered the evidence insufficient), French only selectively cites portions of the trial while ignoring others. Recapitulating the evidence beyond the French court’s above-excerpted summarization will show how French fails to show § 2254(d) unreasonableness on all but two of his other claims, which require further briefing.

B.F., who was 19 when she testified at the trial in this case, doc. 9-7 at 57, was the only daughter of French and Indi Ellington. Doc. 9-7 at 68, 87; doc. 9-9 at 108. She lived with French in Hinesville, Georgia, for “about 2 years” starting when she was “[a]bout 10 or 11” years old. Doc. 9-7 at 60, 97; see also id. at 120 (“from about [1997] until [1999]”). A.S. was one of her female friends. Doc. 9-7 at 61. French, B.F.’s stepmother and three stepbrothers then lived with her, while French was then a U.S. Army soldier. Id. at 62-63. B.F.’s stepbrothers came home from school about 30-45 minutes after her, id. at 65, and it was in that time frame that French started showing her pornographic films, including one named “Mr. Buttman.” id While she watched them on a couch with French, he showed her his erect penis. Id. at 66-67.

Q. Okay. And he offered you some explanation about what you were — what he was showing you?

A. Yeah. He showed me what the head was and what the balls were, and he just showed me — just told me what they were for. And, of course, I knew they made babies, but ...

Q. Well, did he tell you they made babies?

A. Yes.

Q. And all the while, was this movie still going?

A. Yes.

Doc. 9-7 at 67-68. French then got down on the floor and had her get on top of him, with her clothes on, with his penis still erect, “and he kind of just moved me a certain way and asked me what it felt like and just how it felt, and I said it kind of hurt a little bit, but — I don’t know. It was just like that.” Id. at 68. This occurred when B.F. was “[a]bout 11.” Id. at 69.

On another occasion, B.F. was in her bedroom, on her bed naked from her waist down — as French requested. Id. at 70-71. He then brought her a vibrator, turned it on, inserted it into her vagina, and asked her how it felt. Id. at 71-72. “He would move it and say, What does it feel like now? Doesn’t feel like anything. And he asked me if I was nervous. And I was like, Yeah, a little bit.” Id. Afterwards, he explained that it was her stepmother’s but she could use it whenever she wanted, just be sure and clean it afterwards. Id. at 73. French never apologized or expressed regret to her for these actions; “He would just say it was just teaching.” Id.

Also while living with French, B.F. developed a rash “[o]n my elbows, on my knees, [and] on my stomach.” Id. at 74. Having sensitive skin, she’d had this problem prior to living with him. Id. He took her to a dermatologist. Id. She received an ointment to treat it. Id. at 75. French later told her that she was supposed to see that doctor again but the doctor could not see her, so French would have to videotape her naked body to send to the doctor. Id. at 76 (“I want to say I was completely naked because he had to record my stomach.”). He had her “get up on all fours,” videotaped her, then showed it to her afterwards, zooming in and out on her body parts, including her behind. Id. at 77-79. She was 10 or 11 at this time. Id. at 79. It “seemed regular” to her. Id.

French also “educated” her about keeping her vaginal area clean, odor free, and moist. Id. at 79-80. She recalled awakening once to discover him putting a solution into her vagina. Id. at 80. And, from time to time, French slept in her bed with her, though “[i]t wasn’t very often,” and “[s]ometimes he had clothes on.” Id. at 81. French also gave her and her stepbrothers alcohol mixed in punch, and she recalls then getting drunk with him and two of her stepbrothers. Doc. 9-7 at 84-85, 104-05. She never asked him for alcohol. Id. at 85. French’s sexual contact with her, however, happened only when they were sober. Id. at 107.

All of this evidence came from B.F. The state indicted French for four counts of child molestation based on these events. The jury acquitted him on all four counts. Doc. 9-11 at 51. One explanation for this is that it did not believe B.F. Another is that it simply reached a compromise verdict when it convicted him of the aggravated child molestation counts discussed infra. This much is certain: All impeachment evidence obviously was critical to French’s defense.

The aggravated child molestation count regarding B.F. is supported by the following evidence: One night French got into B.F.’s bed while she slept, removed her panties and penetrated her with something. Doc. 9-7 at 81. “And I woke up, and I just — I can’t explain the feeling. It was just something — I don’t know what woke me up. I woke up and felt something inside me.” Id. The prosecution inquired further:

Q. Okay. When you say inside you, inside where?

A. In my behind.

Id. at 82. The prosecution, however, never asked for any more details. But Merritt did:

Q. [B.F.], you testified just a little bit ago that you were asleep and you woke up to find your daddy’s penis in your anus—

A. Right.

Q. —is that correct?

A. Yes.

Q. And you were not awake when this happened?

A. No. And not until I woke up.

Q. And you woke up to find his penis in your anus—

A. Yes.

Q. Is that correct?

A. Yes.

Doc. 9-7 at 111-12 (emphasis added). B.F. then got up and ran into the bathroom, stopping along the way to pick up her panties from the floor. Id. at 83-84. She never discussed it with him thereafter, she “[j]ust pretended like it didn’t happen[.]” Id.

She moved away from French’s home “in the beginning of the 6th grade.” Id. at 86. She went to live with her mother (Indi Ellington) in Michigan, where she completed high school. Id. at 87. In the 10th grade she entered a poetry contest where she submitted a poem she titled “A Child’s Pain.” Id. at 87-89; doc. 9-8 at 89. It related that her father molested her, violated her love and trust, and damaged her, then concluded: “And I love you the same.” Id. at 90.

A teacher approached her and asked if that happened. B.F. initially denied, but then confirmed its truth once confronted by county social services investigators. Id. at 91. Michigan authorities brought no prosecution but instead handed their findings off to the Hinesville, Georgia police department, since these crimes were committed in French’s Hinesville home. Doc. 9-9 at 7,116-17.

In addition to the anal-penetration questions, Merritt’s cross examination of B.F. focused on the simple child molestation counts for which the jury acquitted French. This included the relatively short (30-45 minute) afternoon time window for French to have exploited, with the threat of her brothers, a stepsister and stepmother coming and going in the same house. Doc. 9-7 at 98-101. He also elicited from her the fact that just before Christmas 2002, she revealed to her mother that French had been giving her alcohol. Ellington asked her “has he ever did anything to you, touched you?” and B.F. then denied it. Id. at 109-110.

B.F. admitted, on further cross-examination, that there were no independent facts (injuries, witnesses, photos) — or any other form of evidence other than her testimony — that any molestation or other complained of activity occurred. Doc. 9-8 at 28-29. And before the case erupted following her 2003 poem, she had only mentioned the porn-watching with one of her brothers (and in passing, at that) and related the actual molestation details to an aunt during the Christmas 2002 season. Id. at 29. Merritt thus illuminated the relative dearth of communication, let alone complaints, from B.F. about her father.

A.S., who was 18 when she testified at French’s trial, doc. 9-9 at 32, was one of B.F.’s friends who some eight years before attended B.F.’s slumber birthday party. Id. at 37. French was there, as were some of B.F.’s other friends and one of B.F.’s brothers. Id. A.S., then in the fifth grade, id. at 50, and thus “probably about 9 or 10” years old, id. at 45, somehow (she did not remember) wound up in French’s bed that night. Id. at 38. It was dark outside, and the lights were out in his bedroom. Id. at 38. She was in her pajamas and wearing underwear. French evidently slipped them off, applied Vaseline to “my behind,” then, while she was lying on her stomach, slipped his penis “into my behind.” Id. at 39-44; see also id. at 64 (on Merritt’s cross-examination: “Q. And you indicate that you were anally raped in the room; is that correct? A. Yes.”); id. at 73. She does not remember for how long. Id. at 61.

After French finished with her, she possibly then went to sleep, id. at 60, 65, but later left the room — with her underwear and pajama bottoms back on — and played video games with one of B.F.’s brothers. Id. at 45. The next morning her mother picked her up and she said nothing. Id. at 45. She did not tell her mother what French had done. Id. at 69. She never spoke to any of her friends about it, either. Id. at 73. But, because she feared French, she never returned to the French household. Id. at 79.

Some eight years later she was questioned by Hinesville, Georgia police Detective Melvin Kesner. Id. at 12. Kesner had first met with Ellington, then B.F., who told him about A.S. Id. at 7-8. He also spoke with AS.’s mother over the phone. Id. at 26. From A.S.’s parents he obtained photos of AS. and showed them to B.F., who confirmed that A.S. was at B.F.’s birthday party that night. Id. at 26-27. When Kesner met with A.S. he informed her

that I was there for a reason, and that reason was that when she was 10 years old, she had gone to a birthday party at a girl by the name of [B.S’s] house. [¶]. And I told her — I said, You spent the night over there, and during that night something happened. I says, Could you tell what happened that night?

Q. Did she say anything to you, What are you talking about?

A. She said nothing. She sat there and immediately started crying.

Id. at 13.

A.S. then refused to talk about the incident but wrote out a statement about it for Kesner. Id. at 29-30. She ultimately testified at French’s trial, corroborating that statement. Id. at 75. She conceded, on cross examination, that other than her word there is no other evidence (no contemporaneous medical examination, no witnesses, etc.) to corroborate her testimony. Id. at 77.

Merritt put up one of French’s sons (B.F.’s stepbrother) as a defense witness. Eugene French, II, testified that he remembered the birthday party and that nothing improper went on. All the girls, he recalled, slept in either the living room or B.F.’s bedroom. The defendant never acted improperly toward B.F. or any other of his children, he never gave them alcohol, and he never saw B.F. drunk. Id. at 87-92. And when the molestation allegations that led to this prosecution first surfaced in 2003, he was surprised. Id. at 92. B.F., he testified, never exhibited “abuse” related behavior around him, including at a Christmas 2002 family gathering. Id. at 94. And he never heard of any porn films in the family home. Id. at 145.

Merritt also called French’s mother, Vera French, to impeach AS.’s testimony. From a conversation with B.F., Vera learned that A.S. had claimed something happened with French but B.F. did not believe her. Also, AS. “was telling people that she liked” French before the birthday party. Doc. 9-10 at 44-45.

French himself testified, denying all charges and asserted misbehaviors. Id. at 120-46. He stated that Ellington had constantly fought with him for custody, etc., over the years, until December 2002. Id. at 111-13. He also noted a 2004 “Michigan proceeding.” Id. at 113. “The purpose of [that action was]- — -the same actions was filed in Michigan claiming child molestation. Michigan found no evidence, and they dropped the case.” Id. at 114. Upon the prosecutor’s objection, the trial judge removed the jury and inquired:

THE COURT: Were you prosecuted in Michigan for—

THE WITNESS: No, sir.

THE COURT: — child molestation?

THE WITNESS: No, sir.

THE COURT: Was there a civil action against you for child molestation?

THE WITNESS: The actions that the experts [who testified in this case] spoke about in Michigan, and they followed their criteria- — or they followed their process.

THE COURT: What kind of action was it?

THE WITNESS: I don’t know, sir.

DETECTIVE KESNER: Probably talking about the investigation starting up there, sir, and being moved down here because the jurisdiction was in [Hinesville, Georgia].

THE COURT: Okay. Is that what you’re talking about?

MR. MERRITT: That’s what I’m sure he’s talking about.

Id. at 116-17. The trial judge then had French confirm for the jury that in fact he had never before been prosecuted for child molestation and that the instant case simply originated in Michigan. Id. at 118.

1. Double Jeopardy, Venue Claims

A cluster of French’s claims revolve around the concept of Double Jeopardy —because Michigan “tried” him for the aggravated molestation and dismissed the charges against him, Georgia could not re-prosecute him for the same charges. Doc. 1 at 6 (“Petitioner was prosecuted in Michigan and the case was dismissed after a bench trial. Afterwards, Georgia prosecuted and convicted petitioner for the same allegations.”); see also doc. 5, ground two (same claim, reiterated); doc. 15 at 12-13 (same claim, reiterated); id. at 13-14 (same claim, reiterated); doc. 9-2 (this was presented to the state habeas court); doc. 9-3 (habeas judge failed to reach it). As revealed by French’s own trial testimony, this assertion is just plain false.

Unsurprisingly, French, on whom the burden rests to both plead, argue, and prove all claims with specificity and supply evidence, Borden, 646 F.3d at 822-23 (IAC claim denied because petitioner failed to plead it with adequate specificity); Chavez v. Sec’y Fl. Dep’t of Corrs., 647 F.3d 1057, 1061 (11th Cir.2011), cites no evidence of any prior prosecution. He also ignores the fact that he admitted, during trial, that there was no such prosecution. See also doc. 9-5 at 17, 37 (Merritt reminded him of this at the state habeas hearing and French did not challenge him on it). It therefore is not surprising that Merritt did not raise such issue on appeal, and thus it is properly deemed procedurally defaulted and not overcome by IAC-grounded cause and prejudice. Doc. 37 at 2-3. This claim is simply frivolous, as is French’s related IAC claim against Merritt for failing to raise it. Doc. 15 at 15-16.

French also argues that Georgia lacked venue over him because he “believes the area [on which the] alleged crimes [occurred was a part of military property, and] therefore in military jurisdiction and not the state.” Doc. 55 at 2. He also claims that the state failed to establish venue by never establishing that the crime occurred within the county in which he was prosecuted. Id. at 2.

Setting aside for the moment procedural default and untimeliness (for these claims are new), French’s “military venue” claim fails outright. He “believes” the crime occurred on military property, but then says and shows nothing more. As noted earlier, it is his burden to plead and prove his right to § 2254 relief, and he has not made even the barest attempt here. And venue, for that matter, is not a federal constitutional claim. Hance v. Zant, 696 F.2d 940, 957 (11th Cir.1983) (although under Georgia law venue is part of state’s case and must be proved beyond reasonable doubt, Georgia treats venue as jurisdictional fact, not as element of offense of murder; hence, the federal constitution does not require that venue be proved beyond a reasonable doubt), overruled on other grounds by Brooks v. Kemp, 762 F.2d 1383 (11th Cir.1985). Indeed, if a trial court charges the jury generally on the law of reasonable doubt and there is sufficient evidence of venue, then it need not even specifically charge that proof of venue is material allegation of the indictment. Id. at 957.

Relatedly, French faults Merritt for failing to challenge venue. The state, he says, proved only that the acts took place in Hinesville, Georgia, but not that Hinesville is in Liberty County, Georgia. That was reversible error, he contends, and he was prejudiced because his conviction would have been reversed had Merritt litigated this issue. Doc. 55 at 3-4. French cites Melton v. State, 282 Ga.App. 685, 688, 639 S.E.2d 411 (2006) (state failed to prove venue for two acts of aggravated sodomy and aggravated sexual battery; it presented no evidence that defendant’s residence where sexual acts occurred or that city of defendant’s residence was located in county, and proving that the crime took place within á city without also proving that city was entirely within county did not establish venue); see also Alexander v. State, 311 Ga.App. 95, 95, 714 S.E.2d 739 (2011) (state failed to prove venue, because no evidence showed that the city of Millegeville, where the incident in question occurred, is entirely within Baldwin county); doc. 9-7 at 62, 63, 70 (prosecutor asked B.F. about living in Hinesville when French molested her but not in what county that was located).

But French failed to raise this claim before the state habeas court. See doc. 9-2 at 1-34 (his state habeas petition and amendment); see also id. at 33 (he raised lack of “personal jurisdiction” in state habeas court, but the case law he cites there clarifies that, he was not raising venue, much less an IAC claim based on it); doc. 9-5 (state habeas evidentiary transcript). The “state habeas court [thus] would hold [this claim] to be procedurally defaulted and not decide [it] on the merits, because [it was] not presented in his initial state habeas petition. It follows that [this claim is] procedurally barred from review in this federal habeas proceeding. ...” Chambers v. Thompson, 150 F.3d 1324, 1327 (11th Cir.1998); Conner v. Hall, 645 F.3d 1277, 1288 n. 10 (11th Cir.2011) (“When applied to ordinary habeas petitioners who simply failed to include available claims in their initial petitions, the Georgia successor statute, O.C.G.A. § 9-14-51, is a valid procedural bar.”); doc. 7 at 3-4 (state raised § 9-14-51 defense against French’s “personal jurisdiction” and any other “new” claims). This claim therefore also must be denied.

2. Evidence-Based Claims

French faults Merritt for failing to move for a directed verdict of acquittal. Doc. 53 at 3; see also doc. 15 at 9-11 (same claim, reiterated); doc. 9-2 at 17-18 (as presented in state habeas petition). Under the IAC standards set forth supra, this claim fails- outright in that the above-described B.F. and A.S. testimony alone supplies enough evidence to support guilt beyond a reasonablé doubt. It cannot be said that the state court rulings were § 2254-unreasonable.

French complains that his “[c]onvietion [was] obtained by irreparable misidentification and insufficient evidence. Complainant [B.F.] testified to not seeing petitioner before, during or after incident, that petitioner was not there when she went to sleep, and that there were other males in the house.” Doc. 1 at 6, as briefed, doc. 15 at 5-8; doc. 39 at 1-7. As the above factual recitation shows, French evidently is trying to exploit the darkness that surrounded B.F. the night that he got into her bed and molested her.

French shows nothing unreasonable about the state court rulings here, either. Ample evidence enabled the jury to find that B.F. knew her own father’s feel and smell, the sound of his voice, breath, etc., and thus her identification of him as the perpetrator of the crime against her was well within the scope of what would support a rational jury’s reasonable-doubt level finding. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Means, 433 Fed.Appx. at 854-55 (evidence was sufficient to support defendant’s conviction under Florida law for sexual battery upon a child less than 12 years of age; although there were inconsistencies in the victim’s statements in describing the details of the incident, these were attributable to her age, and her overall account was not inconsistent).

French next complains that there was a “fatal variance” between what he was charged with and what was proved at trial. Doc. 15 at 8. He faults Merritt for failing to challenge this, too. Id. at 10. The state correctly contends that this is a new claim and thus procedurally defaulted. Doc. 37-1 at 3. French has shown no cause to overcome that, so it is denied on those grounds alone. Even if he did, this claim would still fail. He was indicted for “child molestation” and “aggravated child molestation” under O.C.G.A. § 16-6-4. Doc. 9-7 at 95-100. The indictment’s operative wording includes committing “an act of sodomy upon [B.F.], a child under the age of sixteen (16) years, by placing his penis at her anus.... ” Doc. 9-5 at 98. It did the same for A.S. Id. French reasons that, because neither victim used the word “penis” but instead said “something,” this constitutes a fatal variance, thus violating his due process. Doc. 15 at 8-9. As noted earlier, however, Merritt — as part of his defense strategy continued here — asked both victims if French penetrated her with his penis and both said yes. Hence, this claim also fails on the merits. Note too, that French does not even mention A.S. on this claim, yet his conviction also rests on what he did to her.

In Ground 7 French raises a due process violation because prosecution witness Amy Allen, employed by the Michigan child advocacy center that investigated the case upon receipt of B.F.’s poem and other information, doc. 9-8 at 41-42, “bolstered” B.F.’s testimony by opining, says French, that B.F. was “not coached.” Doc. 15 at 17 (citing “T-206 L-22-23,” which can be found in doc. 9-8 at page 83). The state contends that this is a “new claim” and thus procedurally defaulted. Doc. 37 at 4-5. That is correct, except that French presented this issue within an IAC claim against Merritt, (doc. 9-2 at 16, 23-24; doc. 9-5 at 30) and, as noted earlier, that can supply cause and prejudice to overcome the default. And the state habeas court, as explained earlier, at best reached it in the generic sense. Doc. 9-3; see also doc. 15 at 16-17 (claim represented here). Still, under the “reverse-engineering” rule, see swpra n. 12, French must show that its ruling was § 2254(d)-unreasonable.

Allen testified that she found no influence when asked if she ruled out the possibility of “third-party influence.” “Sometimes,” Allen explained,

children will tell you that it [an incident, for example] happened at Eastertime because when — they hear that that’s when they visited Grandpa — it was Eastertime — from their parents. That doesn’t necessarily mean that they were coached by their parents, but they hear, during the course of their allegation, that it was Eastertime because that’s when they went to Florida. [¶] So a third-party influence can come into a child’s statement. It sometimes is accurate information from that child, and sometimes it is a third-party influence. In this case, there wasn’t an occasion that the distinction needed to be made.

Q. You found no influence?

A. Not that — none that I found.

Doc. 9-8 at 83.

French cites only that passage as evidence of “bolstering.” It could not be said to have rendered his trial fundamentally unfair within the meaning of Felker v. Turpin, 83 F.3d 1303, 1311-12 (11th Cir.1996); see also Cooper v. Wise, 426 Fed.Appx. 689, 692 (11th Cir.2011). Hence, French’s IAC claim faulting Merritt for failing to object to it is properly denied for failure to show prejudice. See Damerow, 310 Ga.App. at 537, 714 S.E.2d 82 (applying Strickland standards to conclude that trial counsel’s failure to object to forensic interviewer’s testimony that victim’s demeanor during interview was consistent with her molestation allegations was not ineffective assistance of counsel, as testimony only addressed interviewer’s objective observations of victim’s behavior, not whether she found victim’s statements believable or credible, and defendant did not suffer prejudice as result to admission of testimony).

In Grounds 16 & 17, French argues that the state violated his Sixth Amendment Confrontation Clause rights by admitting Detective Melvin Kesner’s testimony about what A.S. said to him (Ground 17). He then faults Merritt (Ground 16) for “failing to investigate” the investigative process employed by Kesner, see doc. 9-9 at 6-16. Doc. 16 at 3-10. He specifically cites Merritt’s failure to “ensure [that] the [victim] statements the detective obtained [from A.S.] had particularized guarantees of trustworthiness.” Doc. 16 at 3. Kesner, French insists, was biased and failed to videotape his interview, so a competent defense lawyer would have shown how the investigative results (namely, what Kesner learned from A.S.) “lacked ‘indicia of reliability.’ ” Id. at 4. “Had this been presented to the court and ruled upon,” French contends, “the issue [presumably AS.’s testimony against him, French does not say] would have been deemed inadmissible and the outcome of the trial would have been different.” Id.

As the state points out, doc. 37 at 8-9; doc. 37-1 at 3, this claim is procedurally defaulted. Even if not, it fails on the merits. A.S. herself personally testified against French at his trial, doc. 9-9 at 32, while Kesner — who also testified and thus was subject to cross-examination — simply provided the details as to how A.S. wound up being brought to trial some 8 years after the fact, and why she had kept quiet about his molestation in the meantime. Id. at 6-16.

Nor, for that matter, does French explain how Kesner stepped over the constitutional line here. He cites Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), for “reliability requirements,” the need for videotaping, and “indicia of reliability,” but he never does plead and prove — as is his burden — how his Confrontation Clause rights were violated to a Brecht-prejudicial degree (i.e., harmful error) Conclusory claims that something was done wrong fetch no § 2254 relief, not even an evidentiary hearing.

In Ground 9, French argues prosecutorial misconduct based on the prosecutor calling him a “pervert” and “child molester that he is” during his opening argument, where he also argued that French “molested his daughter.” Doc. 15 at 19. This violated French’s due process rights, he contends. Id. at 19-20. Such comments are evaluated to determine whether they so unfairly affected the trial as to deny due process, but they must be considered in the context of the entire trial and in light of any curative instructions. Parker v. Allen, 565 F.3d 1258, 1273-74 (11th Cir.2009).

But French fails to show this Court where he raised it before the state appellate and habeas courts, and so the state correctly argues default here. Doc. 37-1 at 5-6. Plus this claim fails even on the merits because, after the jury heard French’s own daughter testify how he penetrated her anally, one could hardly imagine any undue prejudice from labeling him a “pervert.” French’s parallel IAC claim (Ground 10, doc. 15 at 20-21) — that Merritt was ineffective for failing to object to these statements — is thus correspondingly without merit.

In Ground 11, French faults Merritt for failing to prepare