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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14262
Non-Argument Calendar
____________________
JOSEPH E. NICHOLS, JR.,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:19-cv-00184-BJD-JBT
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2 Opinion of the Court 21-14262
____________________
Before GRANT, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
A jury convicted Joseph Nichols, Jr. of sexual battery, simple
battery, and burglary. The state trial court sentenced him to life
imprisonment with a twenty-five-year minimum for the sexual bat-
tery and a concurrent life sentence for the burglary. It also imposed
two concurrent 364-day jail sentences for the lesser included bat-
teries. In this pro se appeal of a final order denying his petition for
a writ of habeas corpus, Nichols claims ineffective assistance of ap-
pellate counsel. Nichols contends that his appellate counsel should
have challenged the state trial court’s admission of certain state-
ments by Nichols to law enforcement under Miranda instead of un-
der evidentiary rules. But the district court correctly found that
Nichols’ appellate counsel satisfied the deferential Strickland stand-
ard. His appellate counsel made a reasonable strategic choice when
weighing the potential pitfalls of a Miranda argument. Accordingly,
we affirm.
I.
On April 13, 2010, Nichols sexually assaulted his friend’s
daughter-in-law in her home. The assault occurred at knife point
while the victim’s three children slept upstairs. The victim at-
tempted to defend herself against Nichols’ attack, but after a vio-
lent struggle, Nichols subdued her. He threatened to kill all the
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21-14262 Opinion of the Court 3
children in the house if the victim did not submit. After the assault,
Nichols departed.
The police arrested Nichols and advised him of his Miranda
rights. Central to this appeal, Detective Thomas Marmo of the St.
John’s Sheriff’s Department interviewed Nichols. After Detective
Marmo introduced himself, Nichols made several statements
against interest. Nichols stated, “Y’all got me. The bad guy’s behind
bars and I will be for the rest of my life.” Detective Marmo read-
vised Nichols of his Miranda rights and asked whether Nichols un-
derstood the charges against him. Nichols responded, “It really
doesn’t matter . . . . [I]t could be murder for all I care because I’m
going down for the rest of my life anyway.” Soon after, Nichols
told Detective Marmo that he wished to return to his cell. Detec-
tive Marmo continued conversing with Nichols, and Nichols
stated, “You’ve got me hook, line, and sinker for the rest of my life
. . . .” Nichols again requested to return to his cell. Before Detective
Marmo complied with the request, Nichols said, “[Y]ou’ve got me
for the rest of my life,” and noted that an attorney could not rem-
edy his predicament.
The State of Florida charged Nichols by information with
three counts of sexual battery and one count of burglary. Nichols
moved to suppress the interview with Detective Marmo, but the
trial judge denied that motion after reviewing a tape of the inter-
view. The state trial court also denied Nichols’ motion in limine to
exclude four inculpatory statements made during the interview. At
trial, the state introduced portions of the interview between
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4 Opinion of the Court 21-14262
Detective Marmo and Nichols into evidence and brought up the
interview during closing argument. A jury convicted Nichols of
one count of sexual battery with a deadly weapon, two counts of
simple battery (the lesser included offense of sexual battery), and
the burglary as charged. Because the state trial court concluded
that Nichols was a dangerous sexual felony offender, he was sen-
tenced to life imprisonment with a twenty-five-year minimum for
the sexual battery. The state trial court imposed a consecutive life
sentence for the burglary and two concurrent 364-day sentences for
the simple batteries.
Several appeals ensued. Nichols appealed his conviction, ar-
guing in relevant part that the state trial court abused its discretion
by admitting unduly prejudicial statements from the interview
with Detective Marmo. The Fifth District Court of Appeal of Flor-
ida affirmed the conviction without opinion.
Nichols then filed a motion for state postconviction relief
under Fla. R. Crim. P. 3.850, including a claim for ineffective assis-
tance of trial counsel. After an evidentiary hearing, the state trial
court denied Nichols’ motion for postconviction relief. The Fifth
District Court of Appeal of Florida affirmed that denial without
opinion. During the pendency of his postconviction motions, Nich-
ols also submitted a state habeas corpus petition, arguing, among
other things, ineffective appellate counsel, which was summarily
denied.
Seeking federal relief, Nichols filed a habeas petition in the
U.S. District Court for the Middle District of Florida under 28
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21-14262 Opinion of the Court
5
U.S.C. § 2254. The district court denied the petition, concluding
that Nichols failed to establish that his appellate counsel was inef-
fective under Strickland, as well as a certificate of appealability.
Nichols asks us to review that order, and we granted a certificate
of appealability solely on the issue of whether his appellate counsel
was ineffective.
II.
We review a district court’s denial of a petition for habeas
corpus de novo and factual findings for clear error. Ward v. Hall,
592 F.3d 1144, 1155 (11th Cir. 2010). A claim of ineffective assis-
tance of counsel is a mixed question of law and fact, subjecting it
to de novo review.
Id.
III.
On appeal, Nichols claims that his appellate counsel was in-
effective for not advancing a Miranda argument when challenging
the state trial court’s failure to suppress certain statements from the
post-arrest interview. He contends that the failure to raise a poten-
tial Miranda violation deprived him of a reasonably competent at-
torney and prejudiced the outcome of his appeal. Thus, he posits,
the district court erred in denying his habeas petition. We disagree.
A.
A federal court may grant a writ of habeas corpus to a person
convicted in state court only if a “violation of the Constitution or
laws or treaties of the United States” occurred. 28 U.S.C § 2254(a).
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6 Opinion of the Court 21-14262
Generally, a petitioner must exhaust state court remedies before
seeking federal relief. Id. § 2254(b)(1)(A). Ineffective assistance of
counsel in a criminal proceeding violates the Sixth Amendment
and amounts to a constitutional violation that qualifies for federal
habeas review. See McMann v. Richardson,
397 U.S. 759, 771 n.14
(1970) (“It has long been recognized that the right to counsel is the
right to the effective assistance of counsel.”) (emphasis added).
When claiming ineffective assistance of counsel, a petitioner must
demonstrate that (1) “counsel’s performance was deficient” and (2)
“the deficient performance prejudiced the defense.” Strickland v.
Washington,
466 U.S. 668, 687 (1984).
We adopt a strong presumption “that counsel’s perfor-
mance falls within the ‘wide range of professional assistance.’”
Kimmelman v. Morrison,
477 U.S. 365, 381 (1986) (quoting Strick-
land,
466 U.S. at 689). Thus, counsel’s “strategic choices made after
thorough investigation of law and facts . . . are virtually unchal-
lengeable.” Strickland,
466 U.S. at 690. A claim for ineffective assis-
tance of appellate counsel “is governed by the same standards ap-
plied to trial counsel.” Tuomi v. Sec’y, Fla. Dep’t of Corr.,
980 F.3d
787, 795 (11th Cir. 2020). And appellate counsel need not raise
“every ‘colorable’ claim suggested by a client.” Jones v. Barnes,
463
U.S. 745, 754 (1983).
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) superimposes a deferential lens on this framework. See
Renico v. Lett,
559 U.S. 766, 773 (2010) (noting that state court de-
cisions on habeas questions should “be given the benefit of the
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21-14262 Opinion of the Court 7
doubt”) (quotation omitted). Under AEDPA, a federal court may
grant habeas relief only if the state court’s decision was (1) “con-
trary to, or involved an unreasonable application of, clearly estab-
lished Federal law” or (2) “based on an unreasonable determination
of the facts in light of the evidence presented in the State court pro-
ceeding.”
28 U.S.C. § 2254(d)(1)–(2).
Applying AEDPA deference requires us to “evaluate the
highest state-court decision” that decided the claim on the merits.
Marshall v. Sec’y, Fla. Dep’t of Corr.,
828 F.3d 1277, 1285 (11th Cir.
2016). If a state court does not explain its reasoning in denying a
habeas petition, we presume that it adjudicated the claim on the
merits, absent “any indication or state-law procedural principles to
the contrary.” Harrington v. Richter,
562 U.S. 86, 99 (2011). When
reviewing a summary affirmance by a state court, a federal habeas
court “must determine what arguments or theories supported or .
. . could have supported” denial of habeas relief.
Id. at 102 (empha-
sis added). We must then “ask whether it is possible fairminded ju-
rists could disagree that those arguments or theories are incon-
sistent with” a prior Supreme Court decision.
Id. at 102. Because
Strickland and AEDPA create highly deferential standards inde-
pendently, our review is “doubly” deferential when the two stand-
ards “apply in tandem.” Jenkins v. Comm’r, Ala. Dep’t of Corr.,
963
F.3d 1248, 1265 (11th Cir. 2020). Thus, when Strickland and
AEDPA converge in a claim for ineffective assistance of counsel,
we must decide “not whether counsel’s actions were reasonable,”
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8 Opinion of the Court 21-14262
but “whether there is any reasonable argument that counsel satis-
fied Strickland’s deferential standard.”
Id.
B.
The crux of Nichols’ appeal hinges on the alleged strategic
misstep by his counsel on the direct appeal. There, Nichols’ counsel
argued that the state trial court abused its discretion by admitting
unduly prejudicial statements made during the post-arrest inter-
view with Detective Marmo. Appellate counsel contended that am-
biguity inhered in statements like, “You got me for the rest of my
life,” because it was unclear whether Nichols was referring to the
sexual assault or to his probation violation. Denying the motion in
limine, so the argument goes, resulted in admission of inculpatory
statements that pressured Nichols into testifying. The Fifth District
Court of Appeal of Florida rejected this reasoning when it summar-
ily affirmed Nichols’ conviction. That same court also summarily
denied Nichols’ state habeas petition that alleged ineffective assis-
tance of appellate counsel. In his federal habeas petition, Nichols
reasserts his claim of ineffective assistance of appellate counsel. He
posits that his lawyer should have challenged the state trial court’s
admission of the inculpatory statements under Miranda—Nichols
suggests his requests to return to his cell constituted an invocation
of his right to remain silent—instead of under evidentiary rules. See
Miranda v. Arizona,
384 U.S. 436, 467–68, 479 (1966) (“[I]f a person
in custody is to be subjected to interrogation, he must first be in-
formed in clear and unequivocal terms that he has the right to re-
main silent.”).
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1.
To succeed on a Strickland claim for ineffective assistance of
counsel, a petitioner must first prove that “counsel’s performance
was deficient.” Strickland,
466 U.S. at 687. Deficiency means that
“counsel made errors so serious that [he] was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id.
Though the Fifth District Court of Appeal of Florida sum-
marily denied Nichols’ state habeas petition without opinion, we
treat that decision as an adjudication on the merits, which entitles
it to AEDPA deference. Harrington,
562 U.S. at 99. Because Strick-
land and AEDPA apply in tandem, we must determine what argu-
ments could have supported the state court’s denial of habeas re-
lief.
Id. at 102. Nichols’ claim of ineffective assistance of appellate
counsel will fail if there is “any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Jenkins, 963 F.3d at 1265
(alteration omitted).
First, even if a Miranda violation occurred because Nichols
was sleep-deprived and under the influence of pain medication, as
he maintains, Nichols did not argue these points in either his mo-
tion to suppress or motion in limine, precluding his lawyer from
raising them on appeal. See Tillman v. State,
471 So. 2d 32, 34–35
(Fla. 1985); see also Steinhorst v. State,
412 So. 2d. 332, 338 (Fla.
1982) (“[I]n order for an argument to be cognizable on appeal, it
must be the specific contention asserted as legal ground for the
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10 Opinion of the Court 21-14262
objection, exception, or motion below.”). His appellate counsel
was not ineffective for failing to argue foreclosed claims.
Second, Nichols mentioned in his motion to suppress that
he “affirmatively stated” that he wished to cease speaking with De-
tective Marmo. But his primary argument in that motion was that
the state trial court should suppress inculpatory statements made
after he requested to return to his cell, not after his first request to
terminate the interview. Again, the Miranda arguments made by
trial counsel in the motion to suppress limited the panoply of chal-
lenges available at the appellate stage. See
id. We cannot fault ap-
pellate counsel for refusing to advance claims—like a broader Mi-
randa violation—that he was barred from raising.
The only issue for us to decide is whether appellate counsel
was deficient for failing to reargue the Miranda violation to sup-
press statements Nichols made after requesting to return to his cell.
This argument has something to commend it. At least two Florida
courts have noted that an arrestee’s demand to return to his cell
terminates a custodial interrogation. See, e.g., Shorter v. State,
98
So. 3d 685, 689 (Fla. Dist. Ct. App. 2012) (observing that an ar-
restee’s “request to return to his jail cell” provides “sufficient clar-
ity” for “any reasonable law enforcement officer” to know that the
arrestee “desire[s] to terminate the interview”); Scott v. State,
151
So. 3d 567, 578 (Fla. Dist. Ct. App. 2014) (same). But both Shorter
and Scott were decided after Nichols’ direct appeal was denied.
Reasonably effective representation does not require predicting
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21-14262 Opinion of the Court 11
developments in the law. Rambaran v. Sec’y, Dep’t of Corr.,
821
F.3d 1325, 1334 (11th Cir. 2016).
Notably, Nichols made inculpatory statements before ask-
ing to return to his cell. Thus, it was plausibly a better strategy for
appellate counsel to argue that the state trial court should have sup-
pressed these statements on evidentiary grounds rather than under
Miranda. If appellate counsel succeeded with the evidentiary argu-
ment, every inculpatory statement would have been suppressed.
Conversely, a Miranda argument would not have excluded Nich-
ols’ prejudicial statement made before he asked to return to his cell
(a version of “You got me for the rest of my life.”). Admittedly,
Nichols’ lawyer could have raised both evidentiary and Miranda
arguments on the direct appeal, but there is no requirement “to
raise every nonfrivolous issue that a defendant wants raised” if ap-
pellate counsel makes a professional judgment “not to present
those points.”
Id. at 1332.
Nichols has not established that his appellate counsel “made
errors so serious” as to violate the Sixth Amendment. Strickland,
466 U.S. at 687. Accordingly, counsel’s performance was not defi-
cient.
2.
The second Strickland element requires showing that coun-
sel’s “deficient performance” prejudiced the defense.
Id. at 687. The
prejudice prong of Strickland “asks whether it is “‘reasonably likely’
the result would have been different” but for counsel’s
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12 Opinion of the Court 21-14262
ineffectiveness. Harrington,
562 U.S. at 111 (quoting Strickland,
466 U.S. at 696). That is, “[t]he likelihood of a different result must
be substantial, not just conceivable.” Id. at 112. The two-part
Strickland test is conjunctive—“both parts . . . must be satisfied in
order to show a violation of the Sixth Amendment . . . .” Holladay
v. Haley,
209 F.3d 1243, 1248 (11th Cir. 2000).
Several arguments could have supported the state court’s
summary denial of Nichols’ habeas petition on the prejudice
ground, none of which conflict with a prior Supreme Court deci-
sion. Harrington,
562 U.S. at 102. For example, the state court may
have concluded that, even if Nichols’ Miranda argument had been
well-founded, it would not have warranted a reversal of his convic-
tion. “The erroneous admission of statements obtained in violation
of Miranda rights is subject to harmless error analysis.” Mansfield
v. State,
758 So. 2d 636, 644 (Fla. 2000) (quoting Caso v. State,
524
So. 2d 422, 425 (Fla. 1988)). Here, Nichols’ Miranda argument
would have warranted the exclusion of only some of the inculpa-
tory statements that he made to the officers. And his Miranda ar-
gument would have affected none of the other, substantial evi-
dence of his guilt. It was not objectively unreasonable to conclude
that his counsel’s failure to raise the Miranda argument on appeal
did not prejudice him.
IV.
The district court is AFFIRMED.
