Shaun Frederick vs Dept of Corrections, Attorney General of the State of Florida , 438 F. App'x 801 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14024 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 17, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cv-22220-MGC
SHAUN FREDERICK,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF THE STATE OF FLORIDA,
llllllllllllllllllllllllllllllllllllllll Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 17, 2011)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Petitioner was convicted in a Florida state court of burglary of an
unoccupied structure, two counts of kidnaping with a weapon, robbery with a
weapon, and resisting an officer without violence. After exhausting his state
remedies, he petitioned the district court for a writ of habeas corpus, 28 U.S.C. §
2254. The court denied relief, and he appeals its decision.
The district court issued a certificate of appealability on three issues:
1. Whether petitioner was denied effective assistance of counsel, where his
lawyer failed to object and/or file a motion to dismiss the Amended
Information.
2. Whether petitioner was denied effective assistance of counsel, where his
lawyer failed to object to and/or otherwise preserve as error the court’s
confusing and otherwise misleading instructions to the jury.
3. Whether petitioner was denied effective assistance of counsel, where his
lawyer failed to discover that one of the petitioner’s prior convictions did
not qualify as a predicate offense for purposes of his habitual felony
offender enhancement.
In his brief on appeal, petitioner failed to brief the third issue. We therefore
treat it as abandoned, Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008), and
turn to the first two issues.
We review a district court’s denial of § 2254 habeas relief de novo. Gamble
v. Sec’y, Fla. Dep’t of Corr., 450 F.3d 1245, 1247 (11th Cir. 2006). A federal
court may grant a writ of habeas corpus only if the decision of the state court
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adjudicating the petitioner’s claim (1) “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court,” or (2) “was based on an unreasonable determination of the facts
in light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2).
A state court’s decision is “contrary to” federal law if “the state court arrives
at a conclusion opposite to that reached by [the Supreme Court] on a question of
law or if the state court decides a case differently than th[e] Court has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120
S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). A state court’s decision involves “an
unreasonable application” of federal law if “the state court identifies the correct
governing legal principle from [the Supreme Court’s] decisions but unreasonably
applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. at
1523.
To prevail on a claim of ineffective assistance of counsel, the petitioner
must demonstrate both (1) that his counsel’s performance was deficient, i.e., the
performance fell below an objective standard of reasonableness, and (2) that he
suffered prejudice as a result of that deficient performance. Strickland v.
Washington, 466 U.S. 668, 687-88, 104 S.Ct 2052, 2064-65, 80 L.Ed.2d 6743
(1984). In determining whether counsel gave adequate assistance, “counsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. at 690, 104
S.Ct. at 2066. Counsel’s performance is deficient only if it falls below the wide
range of competence demanded of attorneys in criminal cases. Id. at 688-89,
104 S.Ct. at 2065. To make such a showing, the petitioner must demonstrate that
“no competent counsel would have taken the action that his counsel did take.”
United States v. Freixas, 332 F.3d 1314, 1319-20 (11th Cir. 2003) (quotation
omitted). A lawyer cannot be deficient for failing to raise a meritless claim.
Freeman v. Atty. Gen. 536 F.3d 1225, 1233 (11th Cir. 2008). Prejudice is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694,
104 S.Ct. at 2068.
In a § 2254 proceeding, the petitioner must do more than satisfy the
Strickland standard; the petitioner must also show that the state court applied
Strickland in an objectively unreasonable manner. Rutherford v. Crosby, 385 F.3d
1300, 1309 (11th Cir. 2004); Knowles v. Mirzayance, 556 U.S. __, __, 129 S.Ct.
1411, 1420, 173 L.Ed.2d 251 (2009) (noting that the standard of review is “doubly
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deferential” when “a Strickland claim [is] evaluated under the § 2254(d)(1)
standard”). With these principles in hand, we consider the two issues before us.
I.
Under Florida law, an information may be substantively amended during
trial, even over the objection of the defense, in the absence of a showing of
prejudice to the substantial rights of the accused. See State v. Anderson, 537
So.2d 1373, 1375-76 (Fla. 1989).
Florida criminal law provides the following as to the crime of burglary:
[(1)](b) For offenses committed after July 1, 2001, “burglary” means:
1. Entering a dwelling, a structure, or a conveyance with the intent to
commit an offense therein, unless the premises are at the time open to
the public or the defendant is licensed or invited to enter;
...
(2) Burglary is a felony of the first degree, punishable by
imprisonment for a term of years not exceeding life
imprisonment . . . if, in the course of committing the offense, the offender:
...
(b) Is or becomes armed within the dwelling, structure, or
conveyance, with explosives or a dangerous weapon;
...
(3) Burglary is a felony of the second degree . . . if, in the course of
committing the offense, the offender does not make an assault or
battery and is not and does not become armed with a dangerous
weapon or explosive, and the offender enters or remains in a:
...
(c) Structure, and there is another person in the structure at the time
the offender enters or remains;
...
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Fla. Stat. § 810.02 (2007). As to lesser included offenses, Fla. R. Crim. P. 3.490
provides: “[i]f the indictment or information charges an offense divided into
degrees, the jury may find the defendant guilty of the offense charged or any lesser
degree supported by the evidence. The judge shall not instruct on any degree as to
which there is no evidence.”
The Florida Standard Jury Instructions for criminal cases appear on the
Florida Supreme Court’s website. The burglary instruction specifically provides
that burglary of an occupied structure, in violation of Fla. Stat. § 810.02(3)(c), is a
lesser included offense of armed burglary, in violation of Fla. Stat. § 810.02(2)(b).
http://www.floridasupremecourt.org/jury_instructions/instructions
.shtml#, Chapter 13.1 at 4-5.
The state court reasonably determined, pursuant to Strickland, that
petitioner’s lawyer rendered effective assistance even though counsel failed to
object or move to dismiss the amended information. Here, counsel did not object
to the amended information because the lawful amendment decreased the severity
of the charged offense, which benefitted the defendant. Moreover, because
burglary of an occupied structure is a lesser included offense of armed burglary
under Florida law, the court likely would have instructed the jury as to the lesser
offense even without the amendment. Fla. R. Crim. P. 3.490. Thus, counsel’s
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performance in failing to object did not fall below the wide range of competence
demanded of attorneys in criminal cases. Strickland, 466 U.S. at 688, 104 S.Ct. at
2065. Furthermore, petitioner has failed to establish that the outcome of the
proceedings would have been different had his counsel objected to the amended
information, and thus, he has failed to establish that he suffered any prejudice as a
result of counsel’s performance. Id. at 687, 104 S.Ct. at 2064.
II.
The state court reasonably determined, pursuant to Strickland, that
petitioner’s attorney rendered effective assistance even though counsel failed to
object to a jury instruction that, petitioner contends, was confusing or misleading.
Here, even though the court initially misstated that the defendant was charged
with armed burglary, the court read the standard burglary instruction and then
instructed the jury to determine whether the structure was occupied. The
instruction itself did not mention the word “armed” and it did not instruct the jury
to determine whether the defendant was guilty of armed burglary. Because the
trial court read the proper instruction and the initial misstatement was minor, the
district court did not err in finding that the state court reasonably applied
Strickland in determining that counsel’s performance was not deficient. Freeman
v. Atty. Gen. 536 F.3d 1225, 1233 (11th Cir. 2008). Moreover, because petitioner
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failed to establish that the court’s misstatement impacted the jury’s verdict, the
trial court reasonably applied Strickland in concluding that petitioner was not
prejudiced by his counsel’s failure to object to the jury instruction. Rutherford,
385 F.3d at 1309; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
AFFIRMED.
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