Emilio Jesus Nunez v. Fla. Dept. of Corrections , 338 F. App'x 793 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-15969 JUNE 25, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-61584-CV-AJ
EMILIO JESUS NUNEZ,
Petitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Walter A. McNeil, Secretary,
ATTORNEY GENERAL OF THE STATE OF FLORIDA,
Bill McCollum,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 25, 2009)
Before BIRCH, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Emilio Jesus Nunez, a Florida state prisoner proceeding pro se, appeals the
district court’s denial of his federal habeas petition filed pursuant to 28 U.S.C.
§ 2254. The district court granted a certificate of appealability on the following
issue: whether Nunez’s “trial counsel rendered ineffective assistance of counsel by
not putting on (and/or by not being prepared to put on) an insanity defense.”
Nunez argues that even though he informed counsel he did not want an insanity
defense, his counsel’s failure to prepare to present an insanity defense was
ineffective assistance because the state trial court suggested to counsel that he
should prepare to present the insanity defense in case Nunez changed his mind.
After careful review, we affirm.1
“When reviewing the district court’s denial of a habeas petition, we review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). As
amended by the Anti-Terrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), 28 U.S.C. § 2254(d)
forbids federal courts from granting habeas relief on claims that were previously
adjudicated on the merits in state court, unless the adjudication
(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
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In addition, Nunez’s motion to reconsider our denial of his prior motion to expand the
certificate of appealability, construed from his brief on appeal, is DENIED as untimely.
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(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). “[A] federal habeas court making the ‘unreasonable
application’ inquiry should ask whether the state court’s application of clearly
established law was objectively unreasonable.” Williams v. Taylor, 529 U.S. 362,
409 (2000). Moreover, “[i]t is the objective reasonableness, not the correctness per
se, of the state court decision that we are to decide.” Brown v. Head, 272 F.3d
1308, 1313 (11th Cir. 2001). Regarding factual findings, 28 U.S.C. § 2254(e)(1)
provides that “a determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1).
The U.S. Constitution provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for his
defense.” U.S. Const. amend. VI. The benchmark for judging a claim of
ineffective assistance of counsel is whether counsel’s performance so undermined
the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result. Strickland v. Washington, 466 U.S. 668, 686
(1984). To make such a showing, a petitioner must prove two things. Id. at 687.
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First, the petitioner must show that counsel’s performance was deficient. Second,
the petitioner must establish that the deficient performance prejudiced the defense.
Id. If a petitioner fails to show deficient performance, the court need not go on to
determine whether there was prejudice, and vice-versa. Holladay v. Haley, 209
F.3d 1243, 1248 (11th Cir. 2000).
“Counsel’s competence . . . is presumed, and the defendant must rebut this
presumption by proving that his attorney’s representation was unreasonable under
prevailing professional norms and that the challenged action was not sound
strategy.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986) (citation omitted).
There is a strong presumption that counsel’s conduct fell within the range of
reasonable professional assistance. Strickland, 466 U.S. at 689. If the record is
incomplete or unclear about counsel’s actions, then it is presumed that counsel
exercised reasonable professional judgment. Williams v. Head, 185 F.3d 1223,
1228 (11th Cir. 1999).
Although the question under § 2254(d)(1) hinges on Supreme Court law, our
application of Strickland is useful in illustrating whether the state court’s
application of Strickland was reasonable. In Gates v. Zant, we said, “[g]iven the
finite resources of time and money that face a defense attorney, it simply is not
realistic to expect counsel to investigate substantially all plausible lines of
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defense.” 863 F.2d 1492, 1498 (11th Cir. 1989). We further explained that
counsel renders effective assistance when his decision to not pursue a particular
defense is reasonable under the circumstances. Id. (citing Strickland, 466 U.S. at
691). And in Foster v. Strickland, 707 F.2d 1339, 1343 (11th Cir. 1983), the
petitioner had instructed his defense counsel to not present an insanity defense, but
then argued that his counsel was ineffective for failing to investigate an present an
insanity defense. We held that because defense counsel had an ethical obligation
to follow his client’s choice to not present an insanity defense, the petitioner could
not claim that counsel was ineffective for following the petitioner’s instructions.
Id. at 1343-44.
As applied here, the state court’s determination that counsel was not
ineffective was not objectionably unreasonable. As the record shows, Nunez
instructed his counsel as early as February 1999 to “abandon all mental health
issues.” Nunez later explained that an insanity defense was not in his best interest
because, if he was acquitted on the basis of insanity, his release from a state
hospital would be at the discretion of the court, while if he was convicted of first-
degree murder, he would only need to serve an additional 16 to 17 years’
imprisonment before being eligible for parole because of the time he had already
served. In September 1999, Nunez told the court that his counsel was still
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planning to use the insanity defense, despite Nunez’s instructions not to, and the
court confirmed that counsel understood that he could not put forth an insanity
defense without Nunez’s permission. At a status conference in December 1999,
Nunez informed the court he was still refusing the insanity defense. A month later,
during a break in voir dire, Nunez’s counsel told the court that he had prepared
what he thought was the best insanity defense he had ever seen as a lawyer;
however, Nunez continued to refuse the defense, and counsel had abandoned it.
While the trial court reminded counsel that it had previously suggested that he be
prepared to present an insanity defense in case Nunez changed his mind, counsel
explained that it was unrealistic for him to prepare the insanity defense and
Nunez’s requested defense -- crime-of-passion -- because of the amount of time
required to prepare the case for trial. The court opined that “Nunez has made the
decision he didn’t want to pursue an insanity defense. I previously ruled he was
competent by those two doctors. He gets to call that shot. It is in direct opposition
to the advice of counsel . . . He has chose to make this decision.”
Following his conviction and appeals, Nunez filed a petition in state court
for post-conviction relief, which included an ineffective-assistance-of-counsel
claim asserting that even though he told his counsel he did not want an insanity
defense, his counsel was ineffective for not preparing an insanity defense because
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the trial court told counsel to have the insanity defense ready in case Nunez
changed his mind. The state habeas court denied Nunez’s claim, concluding that
his counsel was not ineffective because Nunez precluded counsel from proceeding
with an insanity defense. Nunez later filed this same claim in his § 2254 petition in
federal district court, which similarly denied Nunez’s petition.
On the record here, we reject Nunez’s claim that the state court’s
determination that trial counsel was not constitutionally ineffective was an
unreasonable application of Supreme Court law. As our case law shows, it was a
reasonable choice for counsel to not prepare a defense his client had repeatedly
refused because he did not think it was an appropriate use of his limited trial
preparation time, which is a choice left to counsel’s reasonable discretion. See
Gates, 863 F.2d at 1498 (holding that counsel renders effective assistance of
counsel when he makes a choice, that is reasonable under the circumstances, to not
use his limited amount of preparation time to pursue a defense that he did not think
was viable); Foster, 707 F.2d at 1343-44 (holding that a petitioner may not
complain of his counsel following his instructions to not investigate and prepare an
insanity defense). Because this is the same reason that the state court used -- i.e.
Nunez’s instruction to counsel to not pursue the insanity defense -- Nunez cannot
show that the state court’s application of Strickland was objectively unreasonable.
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Since Nunez has not shown that counsel’s performance was deficient under
the first prong of Strickland, he cannot show that his counsel was constitutionally
ineffective. 466 U.S. at 687. We therefore need not consider whether Nunez
changed his mind as to wanting the insanity defense or whether the insanity
defense would have prevailed at trial because those issues are part of the prejudice
prong of Strickland. Holladay, 209 F.3d at 1248. Accordingly, we affirm the
district court’s denial of Nunez’s § 2254 petition.
AFFIRMED.
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