David Icenhour v. Jason Medlin

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13385
Non-Argument Calendar
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D.C. Docket No. 6:12-cv-00116-BAE-JEG
DAVID ICENHOUR,
Petitioner-Appellant,
versus
JASON MEDLIN,
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Georgia
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(May 27, 2014)
Before PRYOR, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
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David Icenhour, a Georgia prisoner serving a 20-year imprisonment
sentence, appeals the district judge’s denial of his petition for writ of habeas corpus
under 28 U.S.C. § 2254. We affirm.
I. BACKGROUND
In 2004, Icenhour was charged with aggravated battery on a correctional
officer and interference with government property, in violation of Georgia state
law. Ga. Code Ann. §§ 16-5-24; 16-7-24. Prior to trial, defense counsel requested
the pattern jury instruction on reasonable doubt, 1 but the state-trial judge gave a
1
The requested pattern jury instruction read:
This Defendant is presumed to be innocent until proven guilty. The
Defendant enters upon the trial of the case with a presumption of innocence in his
favor. This presumption remains with the Defendant until it is overcome by the
state with evidence which is sufficient to convince you beyond a reasonable doubt
that the Defendant is guilty of the offense charged.
No person shall be convicted of any crime unless and until each element
of the crime is proven beyond a reasonable doubt and to a moral and reasonable
certainty.
The burden of proof rests upon the state to prove every material allegation
of the indictment and every essential element of the crime charged beyond a
reasonable doubt.
There is no burden of proof upon the Defendant whatever, and the burden
never shifts to the Defendant to prove innocence.
However, the state is not required to prove the guilt of the accused beyond
all doubt or to a mathematical certainty. Moral and reasonable certainty is all that
can be expected in a legal investigation. A reasonable doubt means just what it
says. It is a doubt of a fair-minded juror, honestly seeking the truth. It is a doubt
based upon common sense and reason. It does not mean a vague or arbitrary
doubt, but is a doubt for which a reason can be given, arising from a consideration
of the evidence, a lack of evidence, a conflict in the evidence, or any combination
of these.
If after giving consideration to all the facts and circumstances of this case,
your minds are wavering, unsettled or unsatisfied, then that is a doubt of the law,
and you should acquit the Defendant; but, if that doubt does not exist in your
2
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slightly altered instruction instead.2 Defense counsel reserved objections to the
jury instructions but did not specifically object to the reasonable-doubt charge.
The jury convicted Icenhour on both counts.
Icenhour subsequently retained new counsel and moved for a new trial on
the basis his trial counsel had been ineffective for failing to ascertain his mental-
health history and had allowed him to take the witness stand and testify. The
minds as to the guilt of the accused, then you would be authorized to convict the
Defendant.
If the state fails to prove the Defendant’s guilt beyond a reasonable doubt,
it would be your duty to acquit the Defendant.
R at 540.
2
The trial judge’s instruction read:
The defendant enters upon the trial of a criminal case with the
presumption of innocence in his favor. This presumption of innocence remains
with him until and unless the State shall overcome and remove it by the
introduction of evidence and proof to you sufficient to convince your minds
beyond a reasonable doubt of his guilt.
However, the State is not required to prove the defendant guilty beyond all
doubt or to a mathematical certainty.
A reasonable doubt means just what it says. It is not an imaginary,
fanciful or arbitrary doubt; it is not a bare possibility of doubt; but it is a doubt of
a fair-minded juror honestly seeking the truth. It may arise from the evidence,
from a lack of the evidence, from a conflict in the evidence, or from the
defendant’s testimony.
The burden of proof is on the State to prove every material allegation of
this indictment and every essential element of the crimes charged beyond a
reasonable doubt. There is no burden of proof upon this defendant whatsoever
and the burden of proof never shifts to the defendant to prove that he is innocent.
Under our law, he is presumed to be innocent and remains so until or
unless the State proves his guilt beyond a reasonable doubt.
R at 340-41.
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motion was denied and affirmed on appeal. Icenhour v. State, 659 S.E.2d 858
(Ga. Ct. App. 2008).
In March 2009, Icenhour filed an amended application for writ of habeas
corpus in Georgia state court and raised five grounds for relief. Icenhour argued he
had received ineffective assistance of appellate counsel when his appellate counsel
failed to raise an ineffective-assistance-of-trial-counsel claim based on trial
counsel’s failure to object to the trial judge’s jury instruction on reasonable doubt.
Because the trial judge’s reasonable-doubt charge omitted several important
sentences from the suggested pattern-jury instruction, Icenhour asserted it was
constitutionally deficient.
The state post-conviction judge denied Icenhour’s habeas corpus application
and found Icenhour had failed to demonstrate that his appellate counsel’s
performance was deficient under Strickland v. Washington, 466 U.S. 668 (1984),
because the trial judge’s reasonable-doubt charge was proper. The post-conviction
judge also found Icenhour had failed to demonstrate his trial counsel had been
ineffective for failing to object to the reasonable-doubt charge, because his trial
counsel had reserved objections to the charges given. Icenhour subsequently filed
an application for a certificate of probable cause with the Supreme Court of
Georgia, which denied the application without discussion.
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In December 2012, Icenhour filed a § 2254 habeas petition and raised three
grounds for ineffective assistance of appellate counsel. He argued he had received
ineffective assistance of appellate counsel and asserted the trial judge’s charge on
reasonable doubt had been incomplete and had omitted important parts of the
pattern charge.
The district judge denied Icenhour’s § 2254 petition. The judge found
Icenhour’s assertions were conclusory, and he had provided no law or facts which
revealed, but for appellate counsel’s alleged ineffective assistance, the outcome of
his appeal would have been different. See Strickland, 466 U.S. at 694. The judge
granted a certificate of appealability (“COA”) on the following issue:
Whether, given AEDPA’s deference to state court decisions,
Icenhour’s appellate counsel’s failure to raise ineffective assistance of
trial counsel based on trial counsel’s failure to object to the trial
court’s reasonable doubt instruction itself constituted ineffective
assistance of appellate counsel.
R at 824 (referencing 28 U.S.C. § 2254(d)).
II. DISCUSSION
Our review in § 2254 proceedings is limited to the issues specified in the
COA. Williams v. McNeil, 557 F.3d 1287, 1290 & n.4 (11th Cir. 2009). To obtain
review beyond the scope of the COA, the petitioner must move to expand the
COA. See Hodges v. Att’y Gen., 506 F.3d 1337, 1339 (11th Cir. 2007) (noting
petitioner could have moved for reconsideration of order denying a COA and
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asked for expansion of the COA). A petitioner abandons arguments not developed
in his brief on appeal. See Davis v. Jones, 506 F.3d 1325, 1330 n.8 (11th Cir.
2007) (recognizing, because petitioner had failed to develop an argument that the
state court made an unreasonable determination of the facts under § 2254(d)(2) by
not challenging any specific factual finding in his brief on appeal, he had
abandoned the argument).
Icenhour does not address the certified issue on appeal. In his counseled
brief, he instead changes the nature of his argument. He concedes his trial counsel
properly preserved an objection to the reasonable-doubt instruction and argues his
appellate counsel was ineffective for failing to challenge the reasonable-doubt
instruction directly on appeal. Because Icenhour raises an issue not specified in
the COA and has not moved to expand the scope of the COA, we need not consider
his argument on appeal. See Williams, 557 F.3d at 1290 n.4; Hodges, 506 F.3d
at 1339. Since he does not provide any argument or law regarding the issue
actually specified in the COA, we deem that issue abandoned. See Davis, 506 F.3d
at 1330 n.8.
Because the trial judge’s reasonable-doubt instruction was constitutionally
acceptable, Icenhour has failed to demonstrate his appellate counsel’s performance
was deficient under Strickland. An ineffective-assistance-of-counsel claim under
Strickland is a mixed question of law and fact and is subject to de novo review.
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Brooks v. Comm’r, Ala. Dep’t of Corr., 719 F.3d 1292, 1300 (11th Cir. 2013).
Pursuant to AEDPA, a federal judge may not grant a state prisoner habeas relief on
a claim the state judge denied on the merits unless the state judge’s decision: (1)
“was 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).
The Sixth Amendment provides a criminal defendant shall have the right to
“the Assistance of Counsel for his defence.” U.S. Const. amend. VI. To succeed
on an ineffective-assistance claim under Strickland, a petitioner must show his
Sixth Amendment right to counsel was violated because (1) his attorney’s
performance was deficient, and (2) the deficient performance prejudiced
his defense. Strickland, 466 U.S. at 687, 697. A court need not “address both
components of the inquiry if the defendant makes an insufficient showing on one.”
Id. at 697.
Claims of ineffective assistance of appellate counsel are governed by the
same standards applied to trial counsel under Strickland. Brooks, 719 F.3d
at 1300. Under the Strickland standard, counsel’s performance is deficient if it
falls below an objective standard of reasonableness. Strickland, 466 U.S. at 688.
Appellate counsel is not ineffective for failing to raise a non-meritorious claim on
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direct appeal. Diaz v. Sec., Dep’t of Corr., 402 F.3d 1136, 1144-45 (11th Cir.
2005). Prejudice occurs when there 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.
In a criminal case, the government must prove each element of a charged
offense beyond a reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 5 (1994). The
beyond-a-reasonable-doubt standard is a requirement of due process, “but the
Constitution neither prohibits trial courts from defining reasonable doubt nor
requires them to do so as a matter of course.” Id. As long as a trial judge
“instructs the jury on the necessity that the defendant’s guilt be proved beyond a
reasonable doubt, the Constitution does not require that any particular form of
words be used in advising the jury of the government’s burden of proof.” Id.
(citation omitted). Taken as a whole, the jury instructions must convey the concept
of reasonable doubt correctly to the jury. Id. When reviewing the correctness of
reasonable-doubt charges, the inquiry is “whether there is a reasonable likelihood
that the jury understood the instructions to allow conviction based on” a lower
burden of proof than that required by the Constitution. Johnson v. Alabama, 256
F.3d 1156, 1191 (11th Cir. 2001) (citation and internal quotation marks omitted).
In this case, the trial judge’s reasonable-doubt charge emphasized there was
a “presumption of innocence” in Icenhour’s favor, and the burden of proof was on
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the state “to prove every material allegation of [the] indictment and every essential
element of the crimes charged beyond a reasonable doubt.” R at 340-41. The trial
judge also stated the burden of proof never shifted to Icenhour, he defined
“reasonable doubt” as “a doubt of a fair-minded juror honestly seeking the truth,”
and he noted a reasonable doubt could arise from the evidence, the lack of
evidence, a conflict in the evidence, or Icenhour’s testimony. R at 340-41.
Emphasizing the state’s burden and the jury’s obligation to focus on the evidence
presented, the entire instruction establishes it was not reasonably likely the jury
applied the instruction in an unconstitutional manner. See Victor, 511 U.S. at 5;
Johnson, 256 F.3d at 1190-94.
Furthermore, Icenhour has failed to provide any caselaw establishing the
trial judge was required to use the pattern jury instruction or the omission of
certain phrases from the pattern instruction was error. Consequently, Icenhour’s
appellate counsel was not ineffective for failing to challenge the reasonable-doubt
instruction directly on appeal or by failing to raise an ineffective-assistance-of-
trial-counsel claim based on trial counsel’s failure to object to the instruction. See
Diaz, 402 F.3d at 1144-45.
AFFIRMED.
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