                                                               [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                           ________________________           FILED
                                                     U.S. COURT OF APPEALS
                                  No. 10-11391         ELEVENTH CIRCUIT
                              Non-Argument Calendar     OCTOBER 27, 2010
                            ________________________        JOHN LEY
                                                             CLERK
                      D.C. Docket No. 3:07-cv-00155-TJC-JRK

MARIO SPAN,

llllllllllllllll                                           lllll Petitioner-Appellant,


                                       versus


SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

                                       lllllllllll    llllllllllRespondents-Appellees.

                           ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                 (October 27, 2010)

Before TJOFLAT, BLACK and ANDERSON, Circuit Judges.

PER CURIAM:
       Mario Span, a Florida state prisoner proceeding through counsel, appeals

the denial of his federal habeas corpus petition, 28 U.S.C. § 2254. The district

court granted a certificate of appealability (COA) as to the following issue:

“Whether [the district court] erred in deferring to the state court’s decision to deny

petitioner’s claim that he was denied the effective assistance of counsel when

counsel failed to raise and argue a dispositive illegal detention issue.” Consistent

with the district court’s COA, Span argues his trial counsel’s performance was

deficient and prejudicial, because if his counsel had pursued a motion to suppress

based on the legality of his initial stop and detention, the motion would have been

dispositive of the charges against him. A Florida state court rejected this claim on

the merits because counsel made a strategic decision not to pursue the argument.

After review,1 we affirm the denial of Span’s § 2254 petition.

       Under 28 U.S.C. § 2254(d), a federal court cannot grant habeas relief from a

state court judgment unless the state court’s decision on the merits of the issue was

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




       1
         We review de novo the district court’s decision about whether the state court acted
contrary to or unreasonably applied clearly established federal law, or made an unreasonable
determination of fact. Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1239 (11th Cir. 2010),
petition for cert. filed, (U.S. Jun. 7, 2010) (No. 09-11314). A habeas petition based on
ineffective assistance of counsel presents a mixed question of law and fact that we review de
novo. Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998).

                                                2
as determined by the Supreme Court of the United States;2 or (2) 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); Powell v. Allen, 602 F.3d 1263,

1268-69 (2010).

       To make a successful claim of ineffective assistance of counsel, a defendant

must show his counsel’s performance was deficient and the deficient performance

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Once a court has determined that the defendant fails to establish either the

performance or prejudice prong, it need not address the remaining prong. Id. at

697. Where defense counsel’s failure to litigate a Fourth Amendment claim

competently is the principal allegation of ineffectiveness, the defendant must also

prove his Fourth Amendment claim is meritorious and there is a reasonable

probability the verdict would have been different absent the excludable evidence

in order to demonstrate actual prejudice. Kimmelman v. Morrison, 477 U.S. 365,

375 (1986).

       When evaluating the performance prong, counsel’s representation is judged

       2
        A state court’s decision is “contrary to” federal law if (1) the court arrives at a
conclusion opposite to that reached by the U.S. Supreme Court on a question of law, or (2) the
court confronts facts that are “materially indistinguishable” from relevant Supreme Court
precedent, but arrives at an opposite result from that arrived at by the Supreme Court. Williams
v. Taylor, 529 U.S. 362, 412-13 (2000).


                                                3
by an objective standard of reasonableness under all the circumstances, and there

is a “strong presumption that counsel’s conduct [fell] within the wide range of

reasonable professional assistance” and that “under the circumstances, the

challenged action might be considered sound trial strategy.” Strickland, 466 U.S.

at 689. “[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable.” Id. at 690-91. “When

counsel focuses on some issues to the exclusion of others, there is a strong

presumption that he did so for tactical reasons rather than through sheer neglect.”

Yarborough v. Gentry, 540 U.S. 1, 8 (2003).

      The state court’s decision denying Span’s post-conviction claim for

ineffective assistance of counsel was not contrary to, or an unreasonable

application of, clearly established federal law. Even assuming the police had

detained Span unlawfully, based on the record, counsel’s performance was not

deficient in pursuing what he decided was the stronger argument of a later

suggestive identification. Counsel deposed two police officers and listened to the

dispatch tape before making a tactical decision to pursue what he believed to be

the strongest basis for suppressing the identifications. Span has not shown

counsel’s strategic decision to argue for the suppression of the suggestive

identification, instead of the legality of the stop and detention, fell below an

                                           4
objective standard of reasonableness. Accordingly, we affirm the denial of Span’s

§ 2254 habeas petition.

      AFFIRMED.




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