text:                                                                   [PUBLISH]
  
               IN THE UNITED STATES COURT OF APPEALS
  
                       FOR THE ELEVENTH CIRCUIT                  FILED
                                                        U.S. COURT OF APPEALS
                         ________________________         ELEVENTH CIRCUIT
                                                               12/08/99
                                                            THOMAS K. KAHN
                               No. 99-10002                     CLERK
                         ________________________
  
                      D. C. Docket No. 96-03288-CV-N-S
  
  
  TIMOTHY FULLER,
  
                                                       Petitioner-Appellee,
  
                                    versus
  
  ATTORNEY GENERAL OF THE STATE OF ALABAMA,
  
                                                       Respondent-Appellant.
  
                         ________________________
  
                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________
                             (December 8, 1999)
  
  
  Before ANDERSON, Chief Judge, COX and HULL, Circuit Judges.
  
  PER CURIAM:
        The district court granted relief to Timothy Fuller on his 28 U.S.C. § 2254
  
  petition challenging an Alabama conviction for possession of cocaine. Alabama’s
  
  attorney general appeals, and we reverse.
  
                                       Background
  
        Fuller was arrested in a drug raid on an apartment in Midfield, Alabama.
  
  Two or three other men were in the apartment at the time. One of them jumped out
  
  the back window, injuring himself, and another was caught rushing to the
  
  bathroom with about 25 gm of cocaine.
  
        According to police testimony at trial, the raiders found Fuller seated on a
  
  sofa in the sparsely furnished living room. Before him on a coffee table were
  
  various tools of the drug trade, including baggies, wire, and a beeper. There was
  
  also a set of keys that included a key to the apartment; the police attested that
  
  Fuller admitted ownership of the keys, and they indeed returned all the keys but the
  
  apartment key to him. In addition to this evidence of Fuller’s connection with the
  
  apartment, the State introduced mail addressed to Fuller that was found in the
  
  kitchen trash can.
  
        Fuller took the stand on his own behalf. He denied ownership of anything in
  
  the apartment. He had been in the apartment, he explained, to pick up a car for his
  
  employer, a garage, and he had only been in the apartment for about five minutes
  
  before the raid. Fuller’s boss corroborated this testimony. Fuller also swore that
  
  
  
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  the baggies were not on the coffee table until the police arrived and placed them
  
  there.
  
           Fuller’s direct appeal from his cocaine-possession conviction failed. He
  
  then sought postconviction relief under Alabama Rule of Criminal Procedure 32.
  
  One of his claims was that his trial lawyer, Daniel Wainscott, did not provide
  
  effective assistance of counsel because he failed to interview or call as a witness
  
  Floyd Griffin. Griffin was another one of the men in the apartment at the time of
  
  the raid; he pleaded guilty to possession of cocaine and was incarcerated at the
  
  time of Fuller’s trial. According to Griffin’s affidavit, which Fuller filed in the
  
  Rule 32 proceedings, Griffin would have testified that all of the drugs and tools of
  
  the drug trade in the apartment belonged to him, and that Fuller arrived only
  
  minutes before the raid on an innocent mission to get a car.
  
           The state courts rejected this claim. The trial court found that Wainscott’s
  
  failure to call Griffin smacked of a tactical decision, and that Fuller had failed to
  
  overcome the presumption of reasonableness afforded such decisions. The
  
  Alabama Court of Criminal Appeals agreed, and it added a further reason for
  
  denying relief: there was no reasonable probability that the jury would have
  
  acquitted Fuller after hearing Griffin’s testimony, both because Griffin was, as a
  
  convict, incredible and because by saying the baggies were his, he would have
  
  
  
  
                                              3
  contradicted Fuller’s implication that the police had planted the baggies on the
  
  coffee table.
  
        Twice rebuffed in state court, Fuller filed this § 2254 petition in December
  
  1996, after the effective date of the Anti-Terrorism and Effective Death Penalty
  
  Act of 1996 (AEDPA),1 again asserting this ineffective-assistance-of-counsel
  
  claim. This time, it fell on more receptive ears. On a magistrate judge’s
  
  recommendation, the district court refused to defer to the state-court findings of
  
  fact because the state court failed to hold a hearing. It then ordered an evidentiary
  
  hearing. Notwithstanding 28 U.S.C. § 2254(d), which requires deference to most
  
  state-court findings of fact and conclusions of law,2 the district court concluded
  
  that Wainscott provided ineffective assistance and granted the writ.
  
  
  
  
        1
                  Pub. L. No. 104-132, 110 Stat. 1214 (1996).
        2
                  To quote:
  
                  (d) An application for a writ of habeas corpus on behalf of a person
                  in custody pursuant to the judgment of a State court shall not be
                  granted with respect to any claim that was adjudicated on the merits
                  in State court proceedings unless the adjudication of the claim—
  
                         (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).
  
                                                   4
        The state appeals, arguing that the state courts were right and that the federal
  
  courts must defer to them. We review de novo the district court’s conclusions of
  
  law and mixed conclusions of law and fact. See Allen v. Thomas, 161 F.3d 667,
  
  670 (11th Cir. 1998).
  
                                       Discussion
  
        To prove ineffective assistance of counsel, Fuller has to show both that his
  
  counsel performed deficiently and that there is a reasonable probability that the
  
  outcome would have been different but for the deficient performance. See
  
  Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068
  
  (1984). Whether Fuller has satisfied the second element is a mixed question of fact
  
  and law. See id. at 698, 104 S. Ct. at 2070. The Alabama Court of Criminal
  
  Appeals resolved this question against Fuller.
  
        Federal courts owe the court of criminal appeals’ conclusion a measure of
  
  deference under the post-AEDPA version of § 2254(d). See 28 U.S.C. §
  
  2254(d)(1) (as amended by Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1218
  
  (1996)). How much deference, though, is not a completely settled question of law.
  
  This circuit has prescribed a standard based on the statute. See Neelley v. Nagle,
  
  138 F.3d 917, 924 (11th Cir. 1998) (adopting an error-not-debatable-among-
  
  reasonable-jurists standard for mixed questions of fact and law). But the Supreme
  
  Court has granted certiorari to consider, and presently has under submission, a case
  
  
  
                                            5
  presenting the question of § 2254(d)(1)’s import. See Williams v. Taylor, 119 S.
  
  Ct. 1355 (1999) (grant of certiorari in part to address Fourth Circuit’s construction
  
  of § 2254(d)(1)).
  
        Rather than build on shifting sand, we conclude here that even if we were
  
  applying § 2254(d) in its pre-AEDPA form — under which we owed no deference
  
  at all to state-court conclusions on mixed questions of law and fact,3 although we
  
  respected record-supported state fact-finding4 — we would still have to reverse the
  
  district court. The court of criminal appeals found, and the record implies, that
  
  Griffin’s story undermined Fuller’s testimony that the police placed the baggies on
  
  the table in front of him. The state court also found, with record support from
  
  Griffin’s affidavit, that Griffin was convicted for drug possession for his actions in
  
  the same apartment Fuller was in; thus, the jury could well have viewed Fuller as a
  
  bird of the same feather. Finally, the state court found, again with support from
  
  Griffin’s affidavit, that Griffin was a convict offering exculpatory testimony to a
  
  companion at no cost to himself. That fact, as the state courts reasonably noted,
  
  cast a significant cloud on Griffin’s potential credibility before the jury. All of
  
  these circumstances persuade us that there is no reasonable probability that, but for
  
  the lack of Griffin’s testimony, the jury would have acquitted Fuller. Fuller thus
  
  
  
        3
               See Horton v. Zant, 941 F.2d 1449, 1461 (11th Cir. 1991).
        4
               See Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998).
  
                                               6
  did not satisfy Strickland’s prejudice prong, and he was not entitled to relief on his
  
  Strickland claim.
  
                                       Conclusion
  
        For the foregoing reasons, we reverse the district court’s grant of relief.
  
        REVERSED.
  
  
  
  
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