Pablo Guzman v. Secretary, Department of Corrections, et al.

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14181
____________________
PABLO GUZMAN,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF THE STATE OF FLORIDA,
STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:17-cv-20220-CMA
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2 Opinion of the Court 20-14181
____________________
Before J ILL PRYOR , NEWSOM , and G RANT, Circuit Judges.
G RANT, Circuit Judge:
The question here is whether Pablo Guzman was prejudiced
when his appellate counsel failed to make a particular argument.
But there is a catch: while the neglected argument may have
succeeded at the time of his appeal—and even during his state
court habeas petition—it fails under current Florida law.
Guzman’s counsel may have erred in the past, but that error
does not prejudice him in the present—at least not according to
Lockhart v. Fretwell, 506 U.S. 364 (1993). There, the Supreme Court
instructed that when the law has changed in a way to render a legal
problem obsolete, prejudice is measured against current law. See
id. at 371–72. That direction decides this case. We do not need to
decide whether Guzman’s counsel made an error—though by all
accounts, he did. But prejudice review in habeas corpus is
dedicated to deciding whether a proceeding was truly unfair or
unreliable—so much so that to let the result stand would violate
the Constitution. Here, the result for Guzman may have been
unlucky, but it was neither unfair nor unreliable because under
current Florida law, Guzman got the correct result. We affirm the
district court’s denial of Guzman’s petition.
I.
In 2013, Pablo Guzman was tried by a Florida jury. He had
been charged with attempted first-degree murder, and the state
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20-14181 Opinion of the Court 3
court instructed the jury to consider three lesser-included crimes
as well: attempted second-degree murder, attempted voluntary
manslaughter, and aggravated battery. Ultimately, the jury
convicted Guzman of attempted second-degree murder, and he
was sentenced to forty years in prison.
Guzman now claims that the jury instructions on attempted
voluntary manslaughter were incomplete because they lacked an
explanation of “excusable homicide.” Under Florida law, a killing
qualifies as excusable homicide when it was committed “by
accident and misfortune,” with “sudden and sufficient
provocation,” or “upon a sudden combat,” without “any dangerous
weapon being used.” Fla. Stat. § 782.03. When Guzman’s counsel
asked for an instruction explaining excusable homicide, the
prosecution protested that such a theory of the case had not been
pursued and could not possibly apply. The court agreed with the
prosecution and omitted the instruction.
Here is the problem—the decision should have gone the
other way at the time. The Florida Supreme Court had said that a
“complete instruction on manslaughter requires an explanation
that justifiable and excusable homicide are excluded from the crime.”
State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994) (emphasis added). And
it did not matter that Guzman was convicted of attempted second-
degree murder—not manslaughter. Under Lucas, the jury needed
to hear the complete instructions on manslaughter, even if the
evidence was sufficient for second-degree murder. See id. at 426–
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4 Opinion of the Court 20-14181
27. So at the time of Guzman’s trial, Florida law required the
missing instruction.
Even so, Guzman’s counsel did not raise this missing
instruction on direct appeal, and the conviction was affirmed.
Guzman v. State, 151 So. 3d 1256 (Fla. Dist. Ct. App. 2014)
(unpublished table decision). In 2015, Guzman petitioned that
same state appellate court for habeas relief based on ineffective
assistance of appellate counsel. Among the enumerated errors was
failure to appeal the omitted excusable homicide instruction. The
appellate court denied the petition without explanation. Guzman
v. State, 206 So. 3d 712 (Fla. Dist. Ct. App. 2015) (unpublished table
decision).
In 2017, Guzman turned to federal court. He filed a habeas
petition under 28 U.S.C. § 2254 and raised several grounds for relief,
including ineffective assistance of appellate counsel. Before the
district court ruled on the petition, Guzman filed another habeas
petition in state court—nearly identical to his 2015 petition—which
was also denied without explanation. See Guzman v. State, 348 So.
3d 505 (Fla. Dist. Ct. App. 2019) (unpublished table decision). That
same year, the Florida Supreme Court reaffirmed its Lucas line of
cases in State v. Spencer, 216 So. 3d 481, 485–86 (Fla. 2017).1
1 Spencer recognized two exceptions to the rule in Lucas that the jury must have
complete manslaughter instructions, but neither applies to Guzman’s case.
See 216 So. 3d at 485–86.
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20-14181 Opinion of the Court 5
But Lucas did not last much longer. Two years later—before
the district court ruled on Guzman’s § 2254 petition—the Florida
Supreme Court walked back this line of cases in Knight v. State, 286
So. 3d 147 (Fla. 2019). Like Guzman, the defendant in Knight was
convicted of attempted second-degree murder. Id. at 148. He
argued that the jury instructions for attempted voluntary
manslaughter were incorrect, and thus reversible error. Id. at 150–
51. But this time the court disagreed. Because “there was no error
in the jury instruction on the offense of conviction”—attempted
second-degree murder—nor any claim that the evidence at trial
was insufficient to support that conviction, reversal was not
required. Id. at 151 (emphasis added).
The district court recognized this change in the law and
rejected Guzman’s Lucas-based arguments. “If Lucas remained
good law,” the court conceded, then his claim for ineffective
assistance of counsel would have succeeded. But relying on
Lockhart v. Fretwell, which held that the prejudice step of such a
claim turns on current law, the court analyzed Guzman’s claim
under Knight instead. See Fretwell, 506 U.S. at 371–72. And based on
Knight, the court denied Guzman’s petition.
When Guzman appealed, we granted him a certificate of
appealability on this issue. As stated by Guzman, “the determinative
fact for this Court to consider is the applicability of Lockhart v.
Fretwell” to his claim.
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6 Opinion of the Court 20-14181
II.
We review a district court’s denial of a § 2254 federal habeas
petition de novo. Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1332
(11th Cir. 2009).
III.
The Sixth Amendment guarantees criminal defendants the
right to counsel at trial and on direct appeal. See Strickland v.
Washington, 466 U.S. 668, 685–86 (1984); United States v. Berger, 375
F.3d 1223, 1226 (11th Cir. 2004). And “the right to counsel is the
right to the effective assistance of counsel.” Strickland, 466 U.S. at
686 (quotation omitted and emphasis added). To show that trial
counsel or appellate counsel was constitutionally ineffective, a
defendant generally must prove two things: deficient performance
by counsel, and prejudice to the defendant. See id. at 687; Johnson
v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001).
We take for granted that Guzman’s counsel was likely
deficient for failing to raise the excusable homicide instruction. But
Strickland still requires a conclusion that the petitioner was
prejudiced by counsel’s deficiency. A typical description of the
prejudice inquiry is that a defendant must show “a reasonable
probability of a different result in the appeal had the claim been
presented in an effective manner.” Butts v. GDCP Warden, 850 F.3d
1201, 1204 (11th Cir. 2017). The logic of Guzman’s prejudice
argument flows from this typical standard—he says that if his
counsel had challenged the omission of the excusable homicide
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20-14181 Opinion of the Court 7
instruction, there is a “strong probability” that his conviction
would have been vacated.
But not every case is typical. In Lockhart v. Fretwell, the
Supreme Court faced the same atypical issue animating this appeal:
a change in the law. There, as here, the petitioner claimed that his
counsel was ineffective for failing to make an objection (at trial
rather than on appeal). Fretwell, 506 U.S. at 367. And there, as here,
by the time the district court decided his federal habeas case, the
legal basis for the objection no longer existed because the necessary
precedent had been overruled. Id. at 367–68. Relying on the older
law, the district court granted habeas relief (and the appellate court
affirmed) because the omitted objection would have succeeded had
it been made at the time of trial. Id.
The Supreme Court reversed, holding that a Strickland
prejudice analysis “focusing solely on mere outcome
determination, without attention to whether the result of the
proceeding was fundamentally unfair or unreliable, is defective.”
Id. at 369. Put another way, even if a defendant can show “a
reasonable probability of a different result” without counsel’s
error, that is not always the end of the matter under Strickland. See
id. at 369–70. “The essence of an ineffective-assistance claim is that
counsel’s unprofessional errors so upset the adversarial balance
between defense and prosecution that the trial was rendered unfair
and the verdict rendered suspect.” Id. at 369 (quoting Kimmelman
v. Morrison, 477 U.S. 365, 374 (1986)). Thus, Strickland prejudice
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8 Opinion of the Court 20-14181
also requires that the result of a defendant’s proceeding be “unfair
or unreliable.” Id.
In refining the prejudice analysis in this way, the Court
emphasized that it was “neither unfair nor unreliable” to evaluate
the result of an earlier proceeding through the lens of current law.
Id. at 371. More specifically, no prejudice exists “if the
ineffectiveness of counsel does not deprive the defendant of any
substantive or procedural right to which the law entitles him”—
present tense. Id. at 372 (emphasis added). So unless the defendant
would be entitled to habeas relief under current state law, there is
no prejudice.
That case decides this appeal. Under Fretwell, current
Florida law is the proper basis for the prejudice inquiry. Guzman
does not argue that he can show prejudice under current law, so
we conclude that the result of his direct appeal is “neither unfair
nor unreliable.” Id. at 371. He has not been deprived of “any
substantive or procedural right to which the law entitles him,” and
so his conviction does not offend the Constitution’s guarantee of
effective counsel on direct appeal.2 Id. at 372.
Guzman contends that, in spite of the facial similarity
between his case and Fretwell, the Supreme Court’s holding there
2 To be clear, this is no technicality. Guzman was convicted of attempted
second-degree murder, and the jury received a correct instruction on second-
degree murder.
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20-14181 Opinion of the Court 9
does not apply to his ineffective assistance claim for three reasons.
Each is unpersuasive.
First, he argues that Fretwell applies only to claims of
ineffective assistance of counsel at the trial level—not on appeal.
This misses the thrust of Fretwell, which is based on the prejudice
analysis, not the procedural posture. Fretwell does nothing to limit
itself to the trial context—no language cabins its reasoning or
holding in that way. To the contrary, the Fretwell court frequently
refers to Strickland writ large, and Strickland’s analysis applies to
both trials and appeals. See Fretwell, 506 U.S. at 369–73; Philmore v.
McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009). Fretwell must also
apply to both.
We are not alone in reading Fretwell this way. Several other
circuits have already applied that case when evaluating Strickland
prejudice for an appellate ineffective assistance claim. See Bunkley
v. Meachum, 68 F.3d 1518, 1521–22 (2d Cir. 1995); United States v.
Baker, 719 F.3d 313, 321 (4th Cir. 2013); Schaetzle v. Cockrell, 343 F.3d
440, 448 (5th Cir. 2003); Evans v. Hudson, 575 F.3d 560, 566 & n.2
(6th Cir. 2009). Others have applied it when considering different
parts of the Strickland analysis or otherwise considering ineffective
assistance of appellate counsel claims. See Shaw v. Wilson, 721 F.3d
908, 918 (7th Cir. 2013); Matthews v. Workman, 577 F.3d 1175, 1195
(10th Cir. 2009); Becht v. United States, 403 F.3d 541, 545–46 (8th Cir.
2005). No circuit has limited Fretwell to the trial context, and we
see no reason to be the first.
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10 Opinion of the Court 20-14181
Second, Guzman emphasizes that in Fretwell the repudiated
objection had been available for only four years and clearly never
should have been. Here, he points out, Lucas was good law for
almost twenty years, and was less obviously a mistake. But
Fretwell’s basic logic does not turn on how long a case was good
law or the degree of its error. And nothing suggests that the case
is limited to its facts.
Guzman argues that Justice O’Connor’s Fretwell
concurrence states otherwise. She said, as he points out, that the
case was “unusual.” Fretwell, 506 U.S. at 373 (O’Connor, J.,
concurring). But she did not stop there. What she termed
“unusual” was the defendant’s attempt to rely on an argument that
was “wholly meritless under current governing law.” Id. at 373–74
(O’Connor, J., concurring). So too here.
Finally, Guzman tries to persuade us that AEDPA either
overruled or modified Fretwell. See generally Antiterrorism and
Effective Death Penalty Act of 1996 § 104(3), 110 Stat. 1214,
codified at 28 U.S.C. § 2254(d). AEDPA was enacted in 1996, three
years after Fretwell was decided, and added a new subsection (d) to
the existing § 2254. Id.; see also Fretwell, 506 U.S. at 364. The new
provision tightened a federal court’s ability to overturn state
convictions:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
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20-14181 Opinion of the Court 11
court proceedings unless the adjudication of the
claim—
(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 of the United States; or
(2) resulted in a decision that 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) (emphasis added). According to Guzman, this
past-tense language repudiates Fretwell and creates a new federal
habeas right. In his view, § 2254(d) requires federal courts
reviewing habeas petitions to look to the law at the time of the state
decision rather than the law of the present, as Fretwell demands.
Section 2254(d)’s past-focused language, he says, shifts the inquiry
to the time of the state habeas petition.
But AEDPA offers no new habeas power to the federal
courts. In fact, it restrains their power. Under § 2254(d)’s text, a
writ of habeas corpus “shall not be granted with respect to any claim
that was adjudicated on the merits in State court proceedings
unless” it resulted in a decision contrary to clearly established
federal law. 28 U.S.C. § 2254(d) (emphasis added). That
provision’s only affirmative instruction is that federal courts cannot
grant habeas corpus except in a few limited circumstances. What
it does not say is that habeas must be granted—in any circumstance.
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12 Opinion of the Court 20-14181
The limits AEDPA sets on federal courts considering habeas corpus
petitions from state prisoners do not create a new right to grant
those petitions by freezing the law at some point in the past.
This conclusion is consistent with how the Supreme Court
has described AEDPA. In general, the “federal habeas scheme
leaves primary responsibility with the state courts,” and § 2254(d)
in particular “demands that state-court decisions be given the
benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181–82
(2011) (quotations omitted). Against the backdrop of this renewed
deference to state courts, § 2254(d) “places new constraints on the
power of a federal habeas court”—not new avenues for relief.
Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quotation omitted
and alteration adopted); see also Cullen, 563 U.S. at 181 (noting that
AEDPA “sets several limits on the power of a federal court”).
What’s more, both the Supreme Court and this Court have
reaffirmed Fretwell post-AEDPA with no mention of overruling or
modification. See, e.g., Lafler v. Cooper, 566 U.S. 156, 166–67 (2012);
Williams v. Taylor, 529 U.S. 362, 391–94 (2000); Allen v. Sec’y, Florida
Dep’t of Corr., 611 F.3d 740, 754 (11th Cir. 2010). We see no reason
to change course. AEDPA’s restrictions on prisoners’ federal
habeas rights do not create an end run around Fretwell.
* * *
Fretwell establishes that the result of a defendant’s
proceeding is neither unfair nor unreliable in the present when
current law does not provide the right that the defendant seeks to
vindicate. To blind ourselves to current Florida law would grant
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20-14181 Opinion of the Court 13
Guzman “a windfall to which the law does not entitle him.”
Fretwell, 506 U.S. at 370. Because the district court correctly applied
Fretwell to this case, we AFFIRM the court’s denial of his § 2254
petition.
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