Scott A. Stanley v. Secretary, Florida Department of COrrections , 594 F. App'x 610 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11813
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D.C. Docket No. 4:09-cv-00162-SPM-CAS
SCOTT A. STANLEY,
Petitioner-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
________________________
(February 27, 2015)
Before ED CARNES, Chief Judge, COX and GILMAN, ∗ Circuit Judges.
PER CURIAM:
∗
Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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Scott A. Stanley was convicted of aggravated stalking in violation of a court
order. See Fla. Stat. § 784.048(4). He appeals from the district court’s denial of
his federal habeas petition. We granted a certificate of appealability on two issues,
only one of which we need to decide in order to dispose of this appeal. That issue
is whether his appellate counsel was ineffective in failing to argue that a jury
instruction should have been given regarding Stanley’s knowledge that the court
order at issue was in effect when he allegedly committed the offense. Because the
parties and the district court are familiar with the procedural history and the facts,
we will skip straight to our reasoning.
Knowledge that an order or injunction is in effect at the time of the conduct
that violates it is an essential element of the crime of aggravated stalking. Gaspard
v. State, 848 So. 2d 1161, 1162 (Fla. 1st DCA 2003). Under Florida law, the
failure to instruct the jury on an essential element of the offense that is disputed is
fundamental error. State v. Delva, 575 So. 2d 643, 644–45 (Fla. 1991); Wiley v.
State, 830 So. 2d 889, 890 (Fla. 1st DCA 2002). And fundamental error is not
subject to harmless error review. Reed v. State, 837 So. 2d 366, 369–70 (Fla.
2002). The only question is whether the knowledge element was disputed at trial.
The district court’s error was in answering that question in the negative.
In his opening statement, Stanley’s trial counsel put into dispute whether his
client had known that the injunction prohibiting him from contacting Crystal Berry
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was still in effect at the time that he contacted her. Trial counsel argued that Berry
had led Stanley to believe she had withdrawn the injunction. Stanley supported
that defense by testifying that Berry had told him that she “had dissolved it,” and
that he had spoken with an attorney about the matter. He testified that “[t]o [his]
knowledge, it was not in effect.” Although the injunction itself states that its terms
“may not be changed by either party alone or by both parties together,” it also
states that “[e]ither party may ask the Court to change or end this injunction.”
A jury certainly could have found Stanley’s testimony unworthy of belief,
but that does not make his knowledge of the injunction being in effect an
undisputed fact. The existence of that essential element was disputed, making the
failure to give an instruction on it a fundamental error that would have required
reversal of the conviction if appellate counsel had raised the issue. See Reed, 837
So. 2d at 369–70; Wiley, 830 So. 2d at 890. There can be no question that
Stanley’s counsel was aware of the issue because Stanley had brought it to the
attention of both his counsel and the court in a supplemental pro se brief. The
Gaspard decision was on the books at the time of the trial and appeal, and it was
from the state appellate court with jurisdiction over Stanley’s appeal.
Deficient performance is established because any reasonably effective
appellate counsel would have raised the issue, especially after his client pointed out
Gaspard to him. And if the issue had been raised, Stanley’s conviction would have
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been reversed, which is enough to establish prejudice. See Ferrell v. Hall, 640
F.3d 1199, 1236 (11th Cir. 2011). It follows that Stanley has established both
components of his ineffective assistance of appellate counsel claim. The state
court’s conclusion to the contrary was an objectively unreasonable application of
federal law. See Middleton v. McNeil, 541 U.S. 433, 436, 124 S. Ct. 1830, 1832
(2004) (“Where, as here, the state court’s application of governing federal law is
challenged, it must be shown to be not only erroneous, but objectively
unreasonable.”) (internal quotation marks omitted).
In granting this relief, we are mindful of the “strong presumption that
counsel’s conduct [fell] within the wide range of reasonable professional
assistance,” see Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052,
2065 (1984), and that a petitioner seeking to overcome the presumption must
establish “that no competent counsel would have taken the action that his counsel
did take,” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en
banc). But we believe that the circumstances in the case before us overcome this
strong presumption of reasonable professional assistance. Stanley’s appellate
counsel was made aware of a fundamental error by the trial court that mandated
reversal under Florida law, yet declined to raise the issue on appeal. Even under
AEDPA’s high bar for an ineffective assistance of counsel claim, this deficient
conduct calls out for habeas relief.
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The district court’s judgment is therefore REVERSED and the case is
REMANDED with instructions to grant the writ.
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