Reutter v. Secretary for the Department of Corrections , 232 F. App'x 914 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 11, 2007
No. 06-13067 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-02726-CV-T-23-MSS
DAVID M. REUTTER,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 11, 2007)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Florida prisoner David M. Reutter appeals the district court’s denial of his
28 U.S.C. § 2254 habeas corpus petition. We issued a certificate of appealability
on the following issue: “[w]hether the district court erred in dismissing as
procedurally barred appellant’s ineffective-assistance-of-counsel claims.” We
conclude the district court erred in dismissing Reutter’s ineffective-assistance-of-
appellate-counsel claim, but conclude Florida’s Second District Court of Appeal’s
summary denial of this claim was not an unreasonable application of clearly
established law. Thus, we affirm.
I. DISCUSSION
A. Procedural Bar
Reutter asserts the district court erred by dismissing as procedurally barred
his ineffective-assistance-of-appellate-counsel claim. Reutter maintains the district
court erred in basing its finding of procedural default on the nature of the claim
underlying the ineffective-assistance-of-appellate-counsel claim, rather than the
ineffective-assistance claim itself.
Before filing a federal habeas petition, a state prisoner must exhaust state
court remedies, either on direct appeal or in a state post-conviction motion. 28
U.S.C. § 2254(b), (c). Exhaustion presents a mixed question of law and fact,
subject to de novo review. Fox v. Kelso, 911 F.2d 563, 568 (11th Cir. 1990). To
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exhaust state remedies as to a federal constitutional issue, “state prisoners must
give the state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established appellate review process”
before filing a habeas petition. O’Sullivan v. Boerckel, 119 S. Ct. 1728, 1732
(1999). The issue of appellate counsel’s ineffectiveness, “even when based on the
failure of counsel to raise a state law claim–is one of constitutional dimension.”
Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984).
The State conceded both in the district court and on appeal that Reutter
exhausted his substantive federal claim of ineffective assistance of counsel based
on his appellate counsel’s failure to raise on direct appeal Reutter’s preserved
objection to the trial court’s “justifiable homicide” jury instruction that included a
“forcible felony” instruction. Moreover, the State conceded a claim of ineffective
assistance of appellate counsel is a federal constitutional claim.
Both the district court and the State focused on the fact Reutter did not
present to the state courts a claim his appellate counsel was ineffective for failing
to argue federal constitutional error regarding the jury instruction itself. In other
words, they focused on the underlying jury instruction claim as a federal issue.
Even though Reutter’s ineffective-assistance-of-appellate-counsel claim was based
on counsel’s failure to raise a state-law issue, however, the ineffective-assistance
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claim itself was a federal constitutional claim. See Alvord, 725 F.2d at 1291.
Thus, the district court’s conclusion that Reutter’s claim was not exhausted
because he failed to argue the jury instruction was anything other than a state law
issue was incorrect in light of Alvord. Reutter’s substantive claim of
ineffectiveness based on counsel’s failure to challenge the jury instruction was a
federal constitutional claim. Accordingly, the district court erred in finding the
claim was not reviewable on the merits.
Where the district court improperly finds a claim is procedurally barred, we
may review the merits of the claim in the first instance. See Peoples v. Campbell,
377 F.3d 1208, 1235-36 (11th Cir. 2004) (holding although the district court
improperly found the defendant’s ineffective-assistance-of-counsel claim was
procedurally barred, and, thus erred in failing to address that claim, we could reach
the merits of the claim in the first instance). Therefore, our analysis of the merits
of Reutter’s ineffective-assistance-of-appellate-counsel claim follows.
B. Merits of Ineffective-Assistance-of-Appellate-Counsel Claim
Reutter asserts his appellate counsel was deficient for (1) not challenging the
jury instruction even though Reutter requested the issue be included in his direct
appeal; and (2) not focusing on opinions Reutter pointed out to counsel that
foreshadowed a 2002 decision from Florida’s Fourth District Court of Appeal
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supporting Reutter’s argument. Additionally, Reutter contends his appellate
counsel was deficient for failing to rely on the following cases in challenging the
jury instruction on appeal: Perkins v. State, 576 So. 2d 1310 (Fla. 1991); Marshall
v. State, 604 So. 2d 799 (Fla. 1992); and McGahee v. State, 600 So. 2d 9 (Fla. 3d
DCA 1992). Finally, Reutter maintains his case is comparable to Davis v. State,
886 So. 2d 332 (Fla. 5th DCA 2004) and Giles v. State, 831 So. 2d 1263 (Fla. 4th
DCA 2002).
Under 28 U.S.C. § 2254(d), a federal court may not grant habeas relief on
claims that were previously adjudicated in state court, unless the adjudication
“resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the [U.S.]
Supreme Court, . . . or 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)(1)-(2). A state court decision is “contrary to”
established law if (1) the state arrives at a conclusion opposite to that reached by
the Supreme Court on a question of law, or (2) a state court confronts facts
“materially indistinguishable” from relevant Supreme Court precedent, but reaches
an opposite result. Williams v. Taylor, 120 S. Ct. 1495, 1519 (2000). A state
appellate court’s rejection of a claim, without discussion, is an adjudication on the
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merits, and, thus, is entitled to the same deference under § 2254(d) as if the
appellate court had entered written findings. Wright v. Sec. for Dept. of Corr., 278
F.3d 1245, 1253-54 (11th Cir. 2002).
An ineffective-assistance-of-appellate-counsel claim is considered under the
same two-part test announced in Strickland. Grubbs v. Singletary, 120 F.3d 1174,
1176 (11th Cir. 1997). In order to prove ineffective assistance of appellate
counsel, a defendant must show (1) counsel’s performance was constitutionally
deficient, and (2) he was prejudiced as a result. Strickland v. Washington, 104 S.
Ct. 2052, 2064 (1984). If the defendant makes an insufficient showing on one
component, the court need not address the other. Id. at 2069. Unless the petitioner
can rebut the “strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance,” he cannot show that counsel’s
performance was constitutionally deficient. Id. at 2065.
Reutter cannot show his appellate counsel was deficient for several reasons.
First, although Reutter requested his appellate counsel include the jury instruction
issue in his appeal, the cases Reutter claims his appellate counsel should have
cited, namely, Perkins and Marshall, did not address the issue of whether the
“forcible felony” instruction is improper when the defendant is only charged with
one felony. See Perkins, 576 So. 2d at 1311-14; Marshall, 604 So. 2d at 802-03.
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Further, the majority opinion in McGahee found a similar jury instruction to the
one given in Reutter’s case was not prejudicial, and the court did not vacate
McGahee’s conviction. See McGahee, 600 So. 2d at 10.
Second, appellate counsel’s failure to anticipate the Fourth District Court of
Appeal’s decision in Giles does not fall outside the wide range of professional
assistance because (1) “we have held many times that reasonably effective
representation cannot and does not include a requirement to make arguments based
on predictions of how the law may develop,” Spaziano v. Singletary, 36 F.3d
1028, 1039 (11th Cir. 1994) (quotations and alterations omitted); and (2) “[t]o be
effective within the bounds set by Strickland, an attorney need not anticipate
changes in the law,” Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir. 1995).
Additionally, decisions by the Fourth District Court of Appeal are not binding on
the Second District Court of Appeal.
Third, even if the jury instruction issue had merit, appellate counsel’s failure
to raise the issue was not unreasonable under prevailing professional norms
because (1) “the Sixth Amendment does not require appellate advocates to raise
every non-frivolous issue,” and (2) “effective advocates ‘winnow out’ weaker
arguments even though the weaker arguments may be meritorious.” See Heath v.
Jones, 941 F.2d 1126, 1130-31 (11th Cir. 1991) (citing Jones v. Barnes, 103 S. Ct.
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3308, 3313 (1983)). Reutter’s counsel’s appellate advocacy must be judged in its
entirety. See id. at 1131. The record as a whole reveals appellate counsel raised
several important claims on direct appeal, including challenging the sufficiency of
the evidence as to premeditation and challenging the sufficiency of the
circumstantial evidence that the government offered to disprove Reutter’s self-
defense claim. Appellate counsel’s failure to include the jury instruction claim
may have been a strategic decision to “winnow out the weaker arguments,” given
the lack of law supporting Reutter’s jury instruction claim. See id. at 1130-31.
Finally, Reutter’s reliance on Davis is misplaced because: (1) Davis was
decided after the Second District Court of Appeal denied Reutter’s habeas petition;
(2) Davis was decided by the Fifth District Court of Appeal, whose decisions are
not binding on the Second District Court of Appeal; (3) Davis did not apply the
Strickland test; and (4) as discussed above, the Second District Court of Appeal did
not misapply the federal law regarding ineffective-assistance-of-counsel claims. In
sum, the Second District Court of Appeal’s denial of Reutter’s habeas petition with
respect to this issue was not “contrary to” established law because the state arrived
at a conclusion consistent with Supreme Court precedent and our precedent.
Williams, 120 S. Ct. at 1519. We do not reach Strickland’s prejudice prong
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because Reutter’s appellate counsel’s performance was not deficient. Strickland,
104 S. Ct. at 2069.
II. CONCLUSION
The district court erred in finding Reutter’s ineffective-assistance-of-
appellate-counsel claim was procedurally barred. Reviewing the claim in the first
instance, we conclude the Second District Court of Appeal’s finding that Reutter’s
appellate counsel was not ineffective for failing to raise a challenge to the
justifiable homicide jury instruction was not an unreasonable application of clearly
established federal law regarding ineffective-assistance-of-counsel claims.
AFFIRMED.
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