Antwan B. Chance v. Secretary, Florida Department of Corrections

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14103
Non-Argument Calendar
____________________
ANTWAN B. CHANCE,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:13-cv-01399-MSS-TGW
____________________
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2 Opinion of the Court 22-14103
Before J ORDAN, L AGOA, and B LACK , Circuit Judges.
PER CURIAM:
Antwan Chance appeals the denial of his 28 U.S.C. § 2254
petition for a writ of habeas corpus. He argues that, because the
evidence introduced at his state court trial did not support his con-
viction, his trial and appellate counsel were unconstitutionally in-
effective by (1) being insufficiently specific while moving for a judg-
ment of acquittal, (2) not objecting to the State’s closing argument,
(3) failing to file a motion for a new trial, and (4) not arguing on
direct appeal that his trial had fundamental error. After review,1
we affirm the district court.
I. DISCUSSION
To establish ineffective assistance of counsel, a petitioner
must show his attorney’s performance was deficient, and that the
deficient performance prejudiced his defense. Strickland v. Wash-
ington, 466 U.S. 668, 687 (1984). Deficient performance requires
that no competent counsel would have taken the action. Pinkney
v. Sec., Fla. Dept. of Corr., 876 F.3d 1290, 1295 (11th Cir. 2017).
1 We review de novo a district court’s denial of a § 2254 petition but are highly
deferential to the state court’s decision. Ferguson v. Culliver, 527 F.3d 1144,
1146 (11th Cir. 2008). A claim in a § 2254 petition that was adjudicated on the
merits in state court proceedings cannot be granted unless the state court’s
adjudication of the claim (1) resulted in a decision that unreasonably applied
clearly established federal law or (2) was an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding. 28 U.S.C.
§ 2254(d).
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22-14103 Opinion of the Court 3
Prejudice requires 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. When the state court
applies the correct governing federal legal principle to the facts of
the case, the petitioner must show that the state court’s error in
applying the standard was so obviously wrong that it was “beyond
any possibility for fair-minded disagreement.” Shinn v. Kayer, 141
S. Ct. 517, 523 (2020).
A. Specificity of Judgment of Acquittal
Chance contends the State did not present sufficient evi-
dence to support his conviction; specifically, he argues the record
contained no evidence that he had put his finger in—as opposed to
“on”—the victim’s vagina. Under Florida law, sexual battery re-
quires penetration or union with a sexual organ, or penetration by
an object. Fla. Stat. § 794.011(1); Seagrave v. State, 802 So. 2d 281,
287 n.7 (Fla. 2001). “Union” can be contact, while penetration “re-
quires some entry into the relevant [body] part, however slight.”
Seagrave, 802 So. 2d at 287 n.7.
A Florida trial court may enter a judgment of acquittal upon
motion by a party if the evidence is insufficient to warrant a con-
viction. Fla. R. Crim. P. 3.380(a). The trial court should not grant
the motion unless the evidence is such that the jury could not have
lawfully come to its verdict. Lynch v. State, 293 So. 2d 44, 45 (Fla.
1974).
The Florida post-conviction court did not unreasonably ap-
ply clearly established federal law. See 28 U.S.C. § 2254(d). It
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4 Opinion of the Court 22-14103
explained the trial court would not have sustained a more detailed
motion for judgment of acquittal, as there was sufficient evidence
to present a question to the jury under Florida law. Chance cannot
show this determination was beyond any possibility for fair-
minded disagreement. See Shinn, 141 S. Ct. at 523. The victim
made several statements that could result in an inference that
Chance penetrated the victim’s vagina—she said yes when asked if
she had been touched “in” her vagina, and said yes on cross-exam-
ination when asked if she was testifying that Chance had touched
her “in” her vagina. See Seagrave, 802 So. 2d at 287 n.7. And even
if Chance were correct in arguing that this was an incorrect con-
struction of Florida law, this Court could not grant his habeas peti-
tion on that ground. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010)
(stating a prisoner may not obtain federal habeas relief purely as a
result of an error of state law). The district court did not err in
denying Chance’s petition on this ground.
B. Closing Argument
Chance contends the prosecutor went beyond the evidence
at closing argument by stating Chance’s fingers penetrated the vic-
tim’s vagina. Under Florida law, proper closing arguments review
the evidence and explain the reasonable inferences that could be
drawn from it. Gonzalez v. State, 990 So. 2d 1017, 1028-29 (Fla.
2008).
The Florida post-conviction court similarly did not unrea-
sonably apply clearly established federal law when rejecting
Chance’s claim that his trial counsel should have argued that the
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22-14103 Opinion of the Court 5
state’s closing argument impermissibly went beyond the evidence,
as the evidence presented could reasonably lead to an inference of
digital penetration. See 28 U.S.C. § 2254(d); Gonzalez, 990 So. 2d at
1028-29. Its determination is not beyond the possibility for fair-
minded disagreement, so the district court did not err by denying
Chance’s petition on this ground. See Shinn, 141 S. Ct. at 523.
C. New Trial
Chance contends his trial counsel should have moved for a
new trial, based on the same theory of lack of evidence of digital
penetration. A Florida criminal court grants a new trial if “the ver-
dict is contrary to law or the weight of the evidence.” Fla. R. Crim.
P. 3.600(a)(2).
The Florida post-conviction court did not unreasonably ap-
ply clearly established federal law when rejecting Chance’s claim
that his counsel should have moved for a new trial. See 28 U.S.C.
§ 2254(d). It found that such a motion would have been futile un-
der Florida law, and that Chance’s counsel could not have violated
Strickland by failing to file a futile motion. Chance’s counsel had
already filed two unsuccessful motions for judgment of acquittal
and the evidence presented at trial supported his conviction. He
has not shown that no competent counsel would have failed to
move for a new trial or that not doing so resulted in prejudice. See
Strickland, 466 U.S. at 687; Pinkney, 876 F.3d at 1295. Accordingly,
we affirm as to this issue.
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D. Appellate Counsel
Lastly, Chance asserts his appellate counsel should have ar-
gued on direct appeal that his trial had fundamental error. The
same Strickland standard of review applies to claims of ineffective
appellate assistance as to trial assistance. Tuomi v. Sec’y, Fla. Dep’t
of Corr., 980 F.3d 787, 795 (11th Cir. 2020). Under Florida law, fun-
damental error requires error that reaches down into the validity
of the trial itself, such that a verdict of guilty could not have been
obtained without the alleged error. Kilgore v. State, 688 So. 2d 895,
898 (Fla. 1996).
The Florida post-conviction court did not unreasonably ap-
ply clearly established federal law when rejecting Chance’s claim
that his appellate counsel should have argued that his trial had fun-
damental error. See 28 U.S.C. § 2254(d). Its decision implicitly de-
termined that Chance’s trial did not have fundamental error under
Florida law. See Harrington v. Richter, 562 U.S. 86, 98-99 (2011) (ex-
plaining when a state post-conviction court denies a habeas peti-
tion without opinion and there is no lower court state opinion to
look through to, the federal habeas court must determine what ar-
guments or theories could have supported the state court’s deci-
sion). Chance has not shown his trial had fundamental error, be-
cause the evidence presented by the state at trial supported his con-
viction. See Kilgore, 688 So. 2d at 898.
II. CONCLUSION
The evidence was sufficient for the jury to conclude Chance
penetrated the victim’s vagina with his finger. As a result, the trial
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22-14103 Opinion of the Court 7
court would not have sustained a more detailed motion for judg-
ment of acquittal, the state’s closing argument’s references to digi-
tal penetration did not go beyond the evidence, Chance has not
shown that no competent lawyer would have failed to move for a
new trial, and his trial did not have fundamental error. Therefore,
we affirm.
AFFIRMED.
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