Herbert N. Price, Jr. v. Secretary, Florida Department of Corrections , 548 F. App'x 573 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________
No. 11-13446
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D. C. Docket No. 6:09-cv-01061-MSS-GJK
HERBERT PRICE, JR.,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
______________
(November 21, 2013)
Before JORDAN and ANDERSON, Circuit Judges, and ALBRITTON, ∗ District
Judge.
JORDAN, Circuit Judge:
∗
Honorable William H. Albritton III, United States District Judge for the Middle District of
Alabama, sitting by designation.
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In 2003, a Florida jury convicted Herbert Price Jr. of sexual battery on a
physically incapacitated person in violation of § 794.011(4)(f) of the Florida
Statutes. The trial court sentenced Mr. Price to ten years in prison followed by
fifteen years of probation. After exhausting direct appeals and state collateral
attacks, Mr. Price sought federal habeas relief in the United States District Court
for the Middle District of Florida, alleging that his trial counsel rendered
ineffective assistance by failing to object to the prosecution’s use of a peremptory
strike during jury selection.
The district court denied habeas relief, ruling that Mr. Price could not
establish prejudice under Eleventh Circuit precedent. See Price v. Sec’y., Dept. of
Corr., No. 6:09–cv–1061–Orl–35GJK, 2011 WL 2561246, at *8 (M.D. Fla. June
28, 2011). Nonetheless, the district court granted a certificate of appealability on
Mr. Price’s claim of ineffective assistance of counsel. Id. Our review is limited to
the issue specified in the certificate of appealability, see Murray v. United States,
145 F.3d 1249, 1250 (11th Cir. 1998), and for the reasons that follow, we affirm
the district court’s denial of relief.
I
Mr. Price, an African-American man charged with and convicted of a sex
crime against a blind Caucasian woman, alleges that his trial counsel rendered
constitutionally deficient assistance in failing to object to the prosecution’s use of a
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peremptory strike to remove Hilda Edlow, an African-American woman, from the
jury venire. See generally Strickland v. Washington, 466 U.S. 668 (1984); Batson
v. Kentucky, 476 U.S. 79 (1986). Throughout the examination of the venire, the
primary focus of both the prosecution and the defense was each prospective juror’s
ability to impartially examine the evidence and decide the guilt or innocence of a
man charged with a crime against a physically incapacitated person. The
prosecution and defense each devoted the vast majority of their inquiries to
determining whether the potential jurors would be unduly sympathetic to a blind
victim.
Ms. Edlow was one of the few members of the venire who gave any
indication that she might have difficulty applying the same standard to the sighted
and unsighted alike. But in the end, she agreed that, if the blind refuse to see
themselves as handicapped, society should hold them to the same standard as the
able-bodied. The prosecution struck prospective jurors who were initially hesitant
and ultimately equivocal, as well as those who said that the blind neither deserve
nor should receive any special accommodations or treatment at trial. When the
prosecution struck Ms. Edlow from the venire using one of its available
peremptory challenges, defense counsel did not object.
Mr. Price was subsequently convicted and sentenced to ten years in prison
followed by fifteen years of probation. Though his term of imprisonment recently
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expired, his term of probation and designation as a sexual predator remain, and that
means he is still “in custody” for purposes of 28 U.S.C. § 2254. See Duvallon v.
Florida, 691 F.2d 483, 484 (11th Cir. 1982) (“In the context of habeas
proceedings, the ‘in custody’ requirement may also be met where a petitioner is on
probation, parole or bail.”).
II
After his conviction became final, Mr. Price filed a motion for post-
conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. As to his
claim of ineffective assistance of counsel, the trial court denied relief without an
evidentiary hearing:
In Ground II, Defendant argues that Trial Counsel rendered
ineffective assistance by failing to object to the State’s peremptory
challenge to a black female venire person during jury selection. In
Ground III, Defendant argues that Trial Counsel rendered ineffective
assistance by failing to object to the State’s peremptory challenges to
one or more male venire persons during jury selection. The Court
finds that both of these claims are facially insufficient, in that
Defendant does not allege and cannot demonstrate that any biased
juror actually served on his jury. Jenkins v. State, 824 So. 2d 977, 984
(Fla. 4th DCA 2002). Accordingly, Grounds II and III are denied.
The Fifth District Court of Appeal affirmed, per curiam, the trial court’s denial of
Mr. Price’s Rule 3.850 motion. See Price v. State, 965 So. 2d 468 (Fla. 5th DCA
2007).
The district court rejected the ineffective assistance of counsel claim on the
prejudice prong of Strickland, ruling that Mr. Price “ha[d] not established that a
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reasonable probability exists that a race or gender balanced jury would have been
more likely to acquit or convict him of a lesser offense.” Price, 2011 WL
2561246, at *7. The district court then observed our apparent consternation in
Eagle v. Linahan, 279 F.3d 926, 943 n. 22 (11th Cir. 2001), as well as its own,
with the practical implications of requiring a showing of Strickland prejudice in
this context and granted a certificate of appealability on the ineffectiveness claim.
III
Under the Antiterrorism and Effective Death Penalty Act (AEDPA) we may
not grant federal habeas relief unless the state court’s adjudication of Mr. Price’s
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). Mr. Price argues that the standard articulated by the state
court is not, in fact, the federal standard for a Batson-based Strickland claim. If
Mr. Price were right that the state court failed to apply the appropriate federal
standard, its decision would not be entitled to AEDPA deference. See Romine v.
Head, 253 F.3d 1349, 1365 (11th Cir. 2001) (“In other words, when there is grave
doubt about whether the state court applied the correct rule of governing federal
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law, § 2254(d)(1) does not apply. That is what we have here, so we proceed to
decide the issue de novo, as the district court did.”).
Because Mr. Price cannot show that his counsel’s conduct was prejudicial in
the Strickland sense under de novo review, “we need not determine whether
AEDPA’s deferential standard of review . . . applies in this situation.” Trepal v.
Sec’y, Fla. Dept of Corr., 684 F.3d 1088, 1109 (11th Cir. 2012) (quoting Berghuis
v. Thompkins, 560 U.S. 370, (2010)). “That is[,] even if AEDPA deference does
not apply, [Mr. Price] cannot show [prejudice] under de novo review, the more
favorable standard of review for [him].” Id.
In order to succeed on his ineffective assistance of counsel claim, Mr. Price
must show−in addition to deficient performance−a reasonable probability that “the
result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
Although a successful Batson claim requires automatic reversal on direct appeal,
see Rivera v. Illinois, 556 U.S. 148, 161 (2009), the same is not true on collateral
review. Despite Mr. Price’s arguments to the contrary, “the law of this circuit [is]
that an ineffective assistance of counsel claim based on the failure to object to a
structural error at trial requires proof of prejudice.” Purvis v. Crosby, 451 F.3d
734, 742 (11th Cir. 2006) (addressing partial closing of a courtroom during trial).
In Jackson v. Herring, 42 F.3d 1350, 1361 (11th Cir. 1995), for example, we
addressed the showing Strickland requires of petitioners alleging ineffective
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assistance of counsel for failure to raise an equal protection objection under Swain
v. Alabama, 380 U.S. 202 (1965). We proceeded to “determine whether there
[was] a ‘reasonable probability’ of a different result sufficient to undermine our
confidence in the outcome of [the] case.” Jackson, 42 F.3d at 1361. We are bound
to do the same here, despite having expressed some concerns about Jackson in
Eagle, 279 F.3d at 943 n. 22.
Having conducted a thorough review of the record, we agree with the district
court that “there is no evidence that an African American juror would have seen
the evidence any differently than the white jurors seated on the jury.” Price, 2011
WL 2561246, at *7. As the district court noted, race was not the central theme of
this case, and did not play a significant role. To be sure, the victim in this case was
Caucasian, and both Ms. Edlow and Mr. Price were African-American. But that
alone does not establish that “there is a ‘reasonable probability’ of a different result
sufficient to undermine our confidence in the outcome of this case.” Jackson, 42
F.3d at 1361. Significantly, Mr. Price does not attempt to show otherwise.
IV
Under our precedent, Mr. Price was not prejudiced under Strickland by his
counsel’s failure to object to the prosecution’s strike of Ms. Edlow. We therefore
affirm the district court’s denial of habeas relief.
AFFIRMED.
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ANDERSON, Circuit Judge, concurring:
I join the opinion for the court. In addition, I note that affirmance is also
required for a separate and independent reason – i.e., the record reveals an absence
of evidence that the performance of defendant’s trial counsel was deficient under
Strickland v. Washington, 466 U.S. 668 (1984). There is on the face of the voir
dire record a race-neutral reason for the prosecutor’s strike of Ms. Edlow.
Moreover, that record also reveals a good reason why the defense counsel might
not have wanted to object to the strike. Finally, Price has adduced no evidence of
deficient performance, and has failed to preserve any possible error with respect to
the failure to hold an evidentiary hearing.
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