Jose Antonio Heredia v. Secretary, Florida Department of Corrections

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15753
Non-Argument Calendar
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D.C. Docket No. 8:11-cv-01721-JDW-MAP
JOSE ANTONIO HEREDIA,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 19, 2014)
Before HULL, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Jose Heredia, a Florida state prisoner proceeding pro se, appeals the district
court’s denial of his petition for writ of habeas corpus, filed pursuant to 28 U.S.C.
§ 2254, which challenged the validity of his Florida state court conviction and his
sentence for aggravated battery. On appeal, Heredia argues that the Florida
court’s adjudication of his claim of ineffective assistance of counsel was
unreasonable because his trial counsel was constitutionally deficient for failing to
request a jury instruction on self-defense where his testimony supported a self-
defense theory. He further asserts that he had a constitutional right to be served
with the exhibits to the State’s response to his petition, and the district court
violated his Due Process rights by ruling on the petition without requiring the State
to serve him with those exhibits.
Upon careful review of the record and consideration of the parties’ briefs,
we affirm.
I.
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.
A person in custody pursuant to the judgment of a state court shall not be
granted habeas relief unless the state court’s decision on the merits was
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(1) “contrary to, or involved an unreasonable application of, clearly established
Federal law as determined by the Supreme Court of the United States; or
(2) . . . 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). When a
state court’s application of governing federal law is challenged, the decision “must
be shown to be not only erroneous, but objectively unreasonable.” Yarborough v.
Gentry, 540 U.S. 1, 5, 124 S. Ct. 1, 4, 157 L. Ed. 2d 1 (2003). The standard of
review is “doubly deferential” when a Strickland claim is evaluated under the
§ 2254(d)(1) standard. Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S. Ct. 1411,
1420, 173 L. Ed. 2d 251 (2009). “The question is 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). A state court’s factual determinations are
presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), 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
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show that the deficient performance prejudiced the defense. This
requires showing that 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).
“To establish deficient performance, a defendant must show that his
counsel’s representation fell below an objective standard of reasonableness in light
of prevailing professional norms at the time the representation took place.”
Cummings v. Sec’y, Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009)
(quotation omitted). “In judging the reasonableness of counsel’s performance, the
issue is not what is possible or what is prudent or appropriate, but only what is
constitutionally compelled [, and performance must fall] . . . . outside the wide
range of professionally competent assistance” to be considered deficient. Id.
(quotation omitted). “Courts indulge a strong presumption that counsel’s
performance was reasonable and that counsel made all significant decisions in the
exercise of reasonable professional judgment.” Id. (quotation omitted). Strategic
or tactical decisions, made after a thorough investigation of the law and facts, “are
virtually unchallengeable” in an ineffective assistance claim. Strickland, 466 U.S.
at 690, 104 S.Ct. at 2066. Moreover, when a state court makes a factual finding
that counsel strategically decided not to pursue a certain defense, that finding is
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entitled to a presumption of correctness under § 2254(e)(1). Fotopoulos v. Sec’y
Dep’t of Corr., 516 F.3d 1229, 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.” 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. Rather, he must show that the result would have been
different. See id.
Under Florida law, the offense of simple battery occurs when a person
“actually and intentionally touches or strikes another person against the will of the
other.” Fla. Stat. § 784.03(1)(a)1. (emphasis added). Thus, a defendant can avoid
a battery conviction by proving that his injury of another was accidental. See
Williams v. State, 588 So. 2d 44, 45 (Fla. Dist. Ct. App. 1991). As a general matter,
an assertion of accidental injury will preclude an instruction on self-defense, since
self-defense claims require the defendant to admit to the charged conduct. Id.
However, at least two Florida appellate courts have held that where a defendant’s
assertions of accidental injury and self-defense “are so intertwined that the jury
could reasonably find that the accident resulted from the justifiable use of force,” a
self-defense instruction should be given. Id; accord Mills v. State, 490 So. 2d 204,
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205 (Fla. Dist. Ct. App. 1986). In order to elevate a simple battery to an
aggravated battery, the prosecution must prove an additional element, such as the
use of a deadly weapon. See Fla. Stat. § 784.045(1)(a)(2).
Here, the district court correctly found that the state court’s decision was not
unreasonable. The record supports the state court’s factual finding that counsel
strategically decided to forego a self-defense claim, because, based on Heredia’s
account of the altercation, counsel could have reasonably concluded that the best
chance to defeat the aggravated-battery charge was to focus on proving that
Heredia did not intentionally strike the victim. Thus, even if counsel could have
theoretically pursued both defenses, he was not constitutionally deficient for
declining to do so. See Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
Furthermore, even if Heredia had shown a constitutional deficiency, he
failed to satisfy Strickland’s prejudice prong. See Johnson, 256 F.3d 1176.
Heredia’s trial turned on an evaluation of two conflicting versions of the
altercation. Thus, by finding Heredia guilty of aggravated battery, the jury
implicitly credited the victim’s testimony over Heredia’s. Because the jury
disbelieved Heredia’s testimony, the outcome at trial would not have been any
different if counsel had requested a self-defense instruction. Strickland, 466 U.S.
at 694, 104 S.Ct. at 2068.
II.
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We review constitutional claims de novo. United States v. Nash, 438 F.3d
1302, 1304 (11th Cir. 2006). The Fifth Amendment provides that “[n]o person
shall be . . . deprived of life, liberty, or property, without due process of law.” U.S.
Const. Amend. V. The essence of due process is an opportunity to be heard at a
meaningful time and in a meaningful way. Reams v. Irvin, 561 F.3d 1258, 1263
(11th Cir. 2009).
Congress has addressed circumstances under which the clerk may provide
copies of documents from the record to a petitioner without cost in a federal habeas
proceeding:
If on any application for writ of habeas corpus an order has been made
permitting the petitioner to prosecute the application in forma
pauperis, the clerk of any court of the United States shall furnish to
the petitioner without cost certified copies of such documents or parts
of the record on file in his office as may be required by order of the
judge before whom the application is pending.
28 U.S.C. § 2250.
Here, the district court’s refusal to compel the State to serve the exhibits on
Heredia before ruling on his petition did not deny him due process of law. Heredia
was given a copy of the State’s answer and had notice that the exhibits had been
filed, and was therefore aware of the exhibits that the State was relying on in
opposing his § 2254 petition. Further, a review of the record indicates that Heredia
had access to the trial transcript, as he cited specific page numbers in his § 2254
petition. He would have been sufficiently familiar with the other proceedings to
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object if there were any material misrepresentations by the State or the district
court. Therefore, Heredia was not prejudiced by the lack of service. See Reams,
561 F.3d at 1263. Furthermore, Heredia could have obtained free copies of the
State’s exhibits by applying to proceed in forma pauperis. See 28 U.S.C. § 2250.
Accordingly, the State was not constitutionally required to serve Heredia with the
exhibits to its answer. 1
AFFIRMED.
1
We note that this Court recently held, in Rodriguez v. Florida, __ F.3d __ (11th Cir. April
14, 2014), that the state’s failure to provide the referenced appendix documents violated the
Federal Rules of Civil Procedure and the Rules Governing Section 2254 Cases. However,
Heredia failed to raise that argument; he has raised only a constitutional right under the Due
Process clause.
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