Case: 17-10931 Date Filed: 08/13/2018 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10931
Non-Argument Calendar
________________________
D.C. Docket No. 6:13-cv-01964-GKS-DCI
AARON PRESTON,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 13, 2018)
Before WILLIAM PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 17-10931 Date Filed: 08/13/2018 Page: 2 of 12
Aaron Preston, convicted in state court of second-degree murder and
sentenced to life in prison, appeals the district court’s denial of his pro se petition
for writ of habeas corpus under 28 U.S.C. § 2254. The district court granted a
certificate of appealability (“COA”) on the questions whether counsel rendered
ineffective assistance (1) by improperly advising Preston whether to testify at trial
or (2) by failing to move for a mistrial and request that the trial judge recuse
herself. We consider those issues in turn. The facts of the case are known to the
parties; we will not repeat them here.
I
We review a district court’s denial of a habeas corpus petition under § 2254
de novo, but we give deference to the state court’s decision. Davis v. Jones,
506
F.3d 1325, 1331 (11th Cir. 2007). We review mixed questions of law and fact,
such as those that arise in an ineffective-assistance claim, de novo, and we review
any underlying factual findings by the district court for clear error. Dell v. United
States,
710 F.3d 1267, 1272 (11th Cir. 2013). In a § 2254 proceeding, the state
court’s factual determinations are presumed to be correct, and the applicant has the
burden of rebutting the presumption of correctness by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Marquard v. Sec., Dep’t of Corr.,
429 F.3d
1278, 1303 (11th Cir. 2005).
2
Case: 17-10931 Date Filed: 08/13/2018 Page: 3 of 12
When reviewing the merits of a claim that was previously adjudicated in
state court, federal courts may not grant habeas relief unless the state court’s
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, or (2) resulted in a decision based on an unreasonable
determination of the facts based on the evidence presented to the state court. 28
U.S.C. § 2254(d). “A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could disagree on the correctness
of the state court’s decision.” Harrington v. Richter,
562 U.S. 86, 101 (2011).
To state a claim for ineffective assistance of counsel, a criminal defendant
must satisfy the two-pronged test outlined in Strickland v. Washington,
466 U.S.
668 (1984). In particular, he must establish both (1) that counsel’s performance
was deficient and (2) that he was prejudiced by counsel’s deficient performance.
Id. at 687. Performance is deficient only when it falls below an objective standard
of reasonableness and is outside the wide range of professionally competent
assistance. Johnson v. Sec’y, Dep’t of Corr.,
643 F.3d 907, 928 (11th Cir. 2011).
Even on direct review, consideration of counsel’s performance is highly
deferential; a reviewing court will presume that counsel’s conduct fell within the
range of reasonable professional assistance unless the defendant demonstrates that
no competent counsel would have taken the same action.
Id. Counsel is not
3
Case: 17-10931 Date Filed: 08/13/2018 Page: 4 of 12
incompetent so long as the particular approach that he took could be considered
sound strategy. Chandler v. United States,
218 F.3d 1305, 1314 (11th Cir. 2000)
(en banc).
To establish Strickland’s prejudice prong, a defendant must show 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. 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; rather, he must show that the result would have been
different.
Id. at 693.
Importantly here, when Strickland’s deferential standard for measuring
attorney performance is viewed through the lens of § 2254’s own highly
deferential standard, they combine to produce a doubly deferential form of review
that asks only “whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.”
Harrington, 562 U.S. at 105. This “double
deference is doubly difficult for a petitioner to overcome, and it will be a rare case
in which an ineffective assistance of counsel claim that was denied on the merits in
state court is found to merit relief in a habeas proceeding.” Gissendaner v.
Seaboldt,
735 F.3d 1311, 1323 (11th Cir. 2013).
II
4
Case: 17-10931 Date Filed: 08/13/2018 Page: 5 of 12
Preston first argues that his trial counsel rendered constitutionally ineffective
assistance by advising him that he should not testify at trial. In particular, Preston
contends that his counsel erroneously advised him that he should not testify
because, if he did, the state would be able to question him about his prior
convictions. Preston asserts that, but for counsel’s advice, he would have testified
and explained the events that led to the killing in question in a way that would have
supported a self-defense theory and resulted in an acquittal.
The district court did not err in concluding that Preston failed to show that
there was no “reasonable argument that counsel satisfied Strickland’s deferential
standard.”
Harrington, 562 U.S. at 105. It is true that we have held that a criminal
defendant’s trial counsel performs deficiently if he gives affirmative misadvice.
Bauder v. Dept. of Corr. State of Fla.,
619 F.3d 1272, 1275 (11th Cir. 2010).
Here, though, Preston has not established—and certainly has not established
beyond “reasonable argument”—that his lawyer’s advice was incorrect. Although
Preston is right that Florida law typically prevents the state from asking questions
about the specifics of a criminal defendant’s prior convictions, the state
nonetheless could have asked Preston about his criminal history generally, and
could have elicited specifics if Preston opened the door. In particular, under
Florida law, a party may attack the credibility of any witness, including the
accused in a criminal prosecution, with evidence that he has been convicted of a
5
Case: 17-10931 Date Filed: 08/13/2018 Page: 6 of 12
felony or a crime that involved dishonesty or a false statement. Stallworth v. State,
53 So. 3d 1163, 1165 (Fla. 1st Dist. Ct. App. 2011). The witness may be asked
whether he has ever been convicted of such a crime and, if so, how many times.
Id. If the witness responds truthfully, the questions about his criminal history must
cease, but if he denies a conviction, he may be impeached with a certified record of
the conviction.
Id. Preston’s counsel, therefore, did not give him any affirmative
misadvice because he was correct that Preston’s criminal history could come out if
he testified and, further, that the details of that history could come out if Preston
opened the door.
Preston’s ineffective-assistance claim is further undermined by the facts (1)
that the trial court told him (accurately) that his prior history could come out if he
testified and (2) that Preston indicated that he understood. The trial court also
explained Preston’s right to testify to him and emphasized that the final decision
was up to him, but Preston responded that he did not want to testify. Indeed, on
appeal, Preston seems to concede that, at the very least, the jury would have
learned that he was a convicted felon if he testified. Under these circumstances,
Preston did not establish that there was not even “any reasonable argument” that
counsel satisfied Strickland’s deferential standard by advising him not to testify.
Harrington, 562 U.S. at 105.
6
Case: 17-10931 Date Filed: 08/13/2018 Page: 7 of 12
Moreover, even if counsel had misadvised Preston, he has not established—
as he must—that there is no “reasonable argument” that he did not suffer prejudice
as a result. The facts that Preston says he would have testified to in order to
support his claim of self-defense were largely duplicative of the balance of the
evidence at trial. He claims that he would have added a few details—for instance,
that the victim had a tire iron and directed someone else to get a shotgun, and that
Preston and the victim were struggling over a gun when Preston shot him. These
differences, though, do not clearly establish a reasonable probability that the
outcome would have been different, particularly where the other testimony already
showed that the victim and/or his friends had a tire iron and boat paddle during the
incident. See
Strickland, 466 U.S. at 693–94 (emphasizing that it is not enough to
show that the error may have had some conceivable effect on the outcome).
Moreover, as already explained, if Preston had testified, he would have been
subject to cross-examination and the jury would have learned that he had a
criminal history, which could have damaged his credibility and undermined his
self-defense claim. Accordingly, on the facts here, Preston has not shown—
certainly not to a degree that might satisfy § 2254’s stringent standard—that the
outcome of his trial would have been different had he testified.
III
7
Case: 17-10931 Date Filed: 08/13/2018 Page: 8 of 12
Preston next argues that his trial counsel rendered ineffective assistance by
failing to move for a mistrial and request that the trial judge recuse herself. In
particular, Preston contends that his lawyer should have moved for a mistrial and
the trial judge’s recusal on the grounds that the judge reprimanded his lawyer
several times in front of the jury, glared at his lawyer, and had a “personal
vendetta” against counsel—all of which, Preston contends, undermined the fairness
of the trial.
Defendants have the right to an impartial jury and judge. Wellons v.
Warden, Ga. Diagnostic and Classification Prison,
695 F.3d 1202, 1211 (11th Cir.
2012). In particular, due process requires a jury that is willing to decide the case
solely on the evidence before it, and a trial judge who is watchful to prevent
prejudicial occurrences and to determine the effect of such occurrences when they
happen.
Id. There are a few situations in which the probability of a judge’s actual
bias is too high to be constitutionally tolerable—for instance, where the judge has a
pecuniary interest in the outcome of the case. Whisenhant v. Allen,
556 F.3d 1198,
1209 (11th Cir. 2009). When, as here, a judge is alleged to have demonstrated bias
based on comments made during trial, those comments must be pervasive and
prejudicial. Hamm v. Members of Bd. of Regents of State of Fla.,
708 F.2d 647,
651 (11th Cir. 1983). Neither rulings adverse to a party nor friction between the
court and counsel constitute pervasive bias.
Id. Where a judge reprimands counsel
8
Case: 17-10931 Date Filed: 08/13/2018 Page: 9 of 12
for failing to follow established rules, and where those reprimands were largely
given out of the presence of the jury, the court has not displayed bias sufficient to
warrant recusal. United States v. Pritchett,
908 F.2d 816, 819 n.4 (11th Cir. 1990).
Here, Preston did not establish that there was no “reasonable argument” (1)
that his lawyer satisfied Strickland’s deferential standard in declining to move for a
mistrial or seek the judge’s recusal or (2) that he was prejudiced by his lawyer’s
failure to do so.
Harrington, 562 U.S. at 105.
First, it is not beyond “reasonable argument” that Preston’s lawyer
performed deficiently by failing to move for a mistrial or recusal.
Harrington, 562
U.S. at 105. For starters, those motions had no reasonable likelihood of success.
Denson v. United States,
804 F.3d 1339, 1342 (11th Cir. 2015) (counsel is not
required to raise meritless arguments). Although the trial judge admonished
Preston’s counsel on several occasions, the majority of those instances were
outside the hearing of the jury. The few instances in which the judge admonished
Preston’s lawyer in front of the jury pertained to the conduct of the trial, not to
“extrajudicial sources.”
Hamm, 708 F.2d at 651. In any event, any supposed
friction between the court and Preston’s counsel did not constitute the required
“pervasive” bias, and the court’s reprimands that occurred in front of the jury did
not represent bias because (in context) they were merely “gentle reminders.” See
id. (friction between the court and counsel could not constitute pervasive bias);
9
Case: 17-10931 Date Filed: 08/13/2018 Page: 10 of 12
United States v. Pritchett,
908 F.2d 816, 819 n.4 (11th Cir. 1990) (“gentle
reminders” in front of the jury do not represent bias). Similarly, under established
Florida law, the trial judge was permitted to reprimand Preston’s counsel in front
of the jury because he had continually failed to follow the judge’s orders. Gomez
v. State,
751 So. 2d 630, 633 (Fla. 3d Dist. Ct. App. 1999).
Moreover, and in any event, although Preston’s lawyer did not move for a
mistrial or recusal during the trial, he did file a motion for a new trial after the trial
ended. Counsel’s strategic decision to refrain from asking for a mistrial and
instead to move for a new trial after the conclusion of the proceedings was
reasonable here, particularly given the tension that had developed between him and
the trial judge. See United States v. Burke,
257 F.3d 1321, 1324 (11th Cir. 2001)
(decision to refrain from asking for a mistrial is a tactical decision entrusted to
defense counsel). Under these circumstances, Preston did not establish that there
was no “reasonable argument” that counsel satisfied Strickland’s deferential
standard.
Harrington, 562 U.S. at 105.
Nor has Preston established that there is no “reasonable argument” that he
suffered no prejudice as a result of his lawyer’s decision. As already explained,
most of the trial judge’s admonishments occurred outside the presence of the jury,
and those that the jury heard qualify (again, in context) as “gentle reminders.” The
judge also carefully instructed the jurors that the lawyers were not the ones on trial
10
Case: 17-10931 Date Filed: 08/13/2018 Page: 11 of 12
and that their feelings about the lawyers should not influence their decision in the
case. Finally, when Preston’s lawyer told the trial judge that she had been shaking
her head and glaring, the court disagreed and explained that she had been watching
the jury to protect against prejudice. The judge reiterated the same points when
she denied Preston’s motion for a new trial. And, of course, the court’s denial of
the new-trial motion further indicates that a mistrial motion or recusal motion
likewise would have failed. Under these circumstances, Preston has not shown
that there was no “reasonable argument” that he suffered no prejudice as result of
his lawyer’s failure to move for a mistrial or recusal.
IV
Finally, Preston raises three additional ineffective-assistance claims, but they
are beyond the scope of the COA granted by the district court. Appellate review is
limited to the issues specified in the COA. See, e.g., Williams v. Allen,
598 F.3d
778, 795 (11th Cir. 2010).
To the extent that Preston now contends that the COA should have been
expanded to include other issues in his § 2254 petition, the time for seeking that
relief has passed. Preston filed a motion to expand the COA with this Court,
arguing that a COA should have been granted on each of his other claims as well.
This Court denied his motion. Preston subsequently moved for an extension of
time to file a motion for reconsideration of the denial of his motion to expand the
11
Case: 17-10931 Date Filed: 08/13/2018 Page: 12 of 12
COA. This Court granted Preston a 14-day extension, but Preston never filed a
motion for reconsideration. He cannot resurrect that argument now.
AFFIRMED.
12
