Patrick A. Chambers v. Secretary, Department of Corrections , 459 F. App'x 852 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11848 MARCH 1, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 8:08-cv-00176-EAK-EAJ
PATRICK A. CHAMBERS,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
llllllllllllllllllllllllllllllllllllllll Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 1, 2012)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Patrick Chambers, a Florida prison inmate proceeding pro se, appeals the
district court’s denial of his petition to set aside his conviction for aggravated
assault pursuant to 28 U.S.C. § 2254. The Florida District Court of Appeal, in
affirming his conviction and sentence in Chambers v. State (“Chambers I”),
described the State’s case against Chambers thusly:
On March 21, 2002, Mr. Chambers knocked on the door of
Marcia Radway's apartment. Ms. Radway claimed that he forced his
way in and told her that he had been hired to kill her. He pulled out a
gun and threatened her with it. At the time of these events, Richard
Blair was in the bathroom of the apartment. Mr. Chambers allegedly
threatened him with the gun and told him not to come out of the
bathroom. A struggle then occurred between Ms. Radway and Mr.
Chambers in which the gun discharged and shot her in the leg. Mr.
Chambers then fled from the apartment. At trial, Ms. Radway testified
that she had not known Mr. Chambers prior to this burglary. Ms.
Radway is Jamaican and when the police first arrived at the scene of
this crime, she told them that another Jamaican named “Zeke” had
shot her.
Mr. Chambers was arrested following a high-speed car chase
during which he threw the gun involved in the shooting out the
window of his car. Following his arrest, Mr. Chambers gave a
recorded statement to the police in which he claimed that he and a
man named “Dray” had gone to the apartment to purchase thirteen
pounds of marijuana. Mr. Chambers stated that “Dray” was involved
in the purchase of the marijuana in another room, while he merely
waited in the living room. Mr. Chambers heard a scuffle in the other
room and then a gunshot. Thereafter, the two men fled together.
However, no one named “Dray” was ever located. The gunshot
alerted neighbors to this event, and no neighbor saw anyone other
than Mr. Chambers leave the apartment. It is interesting to note,
however, that Mr. Blair left the apartment immediately after the
shooting and did not return until the police had already begun their
investigation.
The State charged Mr. Chambers with armed burglary of a
dwelling, aggravated assault of Richard Blair, attempted
second-degree murder of Ms. Radway, and tampering with physical
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evidence, i.e., the firearm. Mr. Chambers was found not guilty of the
burglary and of the assault on Richard Blair. He was found guilty of
tampering, but that conviction creates no issue for appeal.
880 So.2d 696, 698 (Fla. 2d Dist. Ct. App. 2004). The trial court instructed the
jury on the lesser included offenses of attempted second-degree murder:
aggravated battery, aggravated assault, felony battery, battery and assault.
Defense counsel did not object to the instructions. On appeal, Chambers argued
that aggravated battery was not a category one lesser-included offense, and,
moreover, that the charging document failed to allege the essential elements of the
offense. The District Court of Appeal agreed, but held that the error did not
amount to a fundamental error requiring reversal. Chambers I, 880 So.2d at 699.
Chambers then petitioned the appellate court for a writ of habeas corpus on the
ground that appellate counsel was ineffective for failing to argue that it was
fundamental error to instruct the jury on aggravated assault while discharging a
firearm resulting in great bodily injury, because the penalty for the offense was the
same as the penalty for attempted second-degree murder. The court denied his
petition on the ground that the instruction did not amount to fundamental error
because Chambers suffered no prejudice. Chambers v. State, 975 So.21d 444 (Fla.
2d Dist, Ct. App. 2007) (Chambers II). Chambers then moved the trial court
pursuant to Florida Rule of Criminal Procedure 3.850 to vacate his aggravated
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assault conviction on the ground that defense counsel was ineffective for failing to
object to the jury instruction on aggravated assault. The court denied his motion,
concluding that the effect of the District Court of Appeal’s holdings that
Chambers had not been “harmed by the unpreserved error” was that he had not
suffered Strickland prejudice. See Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). Chambers appealed the ruling, and the
District Court of Appeal affirmed per curiam. Chambers v. State, 905 So.2d 125(Fla. 2d Dist. Ct. App. 2005).
Having no success in the Florida courts, Chambers repaired to the federal
district court for relief under § 2254. The district court agreed with the Florida
courts that Chambers failed to establish Strickland prejudice and thus denied the
writ. We granted a certificate of appealability as to whether Chambers’s trial
counsel rendered ineffective assistance by failing to object to the inclusion of an
aggravated assault instruction in the court’s charge to the jury.
In his brief, Chambers argues that the state habeas court unreasonably
applied Strickland when it determined that he was not prejudiced by his trial
counsel’s performance. Specifically, Chambers argues that if aggravated assault
was not listed on the jury verdict form, the jury would have, at most, selected
felony battery, the next lowest offense, because the jury did not select the lesser
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included offenses listed above aggravated assault.
We review a district court’s denial of a habeas petition under 28 U.S.C.
§ 2254 de novo and its factual findings for clear error. Sims v. Singletary, 155
F.3d 1297, 1304 (11th Cir. 1998). A habeas petition based on ineffective
assistance of counsel presents a mixed question of law and fact that we review de
novo. Id. “Pro se pleadings are held to a less stringent standard than pleadings
drafted by attorneys and will, therefore, be liberally construed.” Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (quotation omitted).
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 state court’s
adjudication resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Supreme Court law, 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. 28 U.S.C. § 2254(d)(1)-(2).
In Strickland, the Supreme Court set out a two-part inquiry for ineffective
assistance of counsel claims:
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that
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counsel’s errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
466 U.S. at 687, 104 S.Ct. at 2064. A habeas petitioner claiming ineffective
assistance of counsel must succeed on both prongs of the Strickland test. Johnson
v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001). If the defendant makes an
insufficient showing on the prejudice prong, we need not address the performance
prong, and vice versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
A prisoner must establish prejudice in order to succeed on an ineffective
assistance claim, even if there was a structural error in the criminal proceedings.
Purvis v. Crosby, 451 F.3d 734, 743 (11th Cir. 2006). Prejudice is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at
2068. A reasonable probability is one sufficient to undermine confidence in the
outcome. Id. It is not enough for the defendant to show that the error had some
conceivable effect on the outcome of the proceeding. Id. at 693, 104 S.Ct. at
2067. He must show that the result would have been different. See id.The standard of review is “doubly deferential” when we evaluate a
Strickland claim is under the § 2254(d)(1) standard. Knowles v. Mirzayance, 556
U.S. 111, ___, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009). “The question is
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not whether a federal court believes the state court’s determination under the
Strickland standard was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Id. (quotation omitted).
Here, Chambers has not shown that the District Court of Appeal’s denial of
his ineffective assistance claim based on the lack of prejudice was contrary to, or
an unreasonable application of, Strickland. In this case, the issue of prejudice
comes down to whether, absent the inclusion of aggravated assault on the verdict
form and in the jury instruction, the jury would have selected the lesser included
offense of aggravated battery, which contains the same statutory minimum
sentence as aggravated assault, or the offense of felony battery, which would have
resulted in a significantly lower sentence. The District Court of Appeal reasoned
that it was highly unlikely that a jury would have selected the next lesser offense
of felony battery, and concluded that, therefore, Chambers had not been prejudiced
under Strickland. Given the fact that it is arguable that the jury would have
selected aggravated battery or felony battery, the state court did not unreasonably
determine that the jury would have selected the higher offense of aggravated
battery. See Knowles, 556 U.S. at ___, 129 S.Ct. at 1420 (stating that the inquiry
is whether the state court’s Strickland determination was unreasonable). While
Chambers’s argument that the jury would have selected felony battery is plausible,
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Chambers cannot meet his burden by merely establishing that the error had some
conceivable effect on the outcome of the proceeding. See Strickland, 466 U.S. at
693, 104 S.Ct. at 2067. Accordingly, because the District Court of Appeal did not
unreasonably determine that Chambers failed to meet the prejudice prong of
Strickland, we affirm the denial of his § 2254 petition.
AFFIRMED.
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