Justin Willis v. Secretary, Florida Department of Corrections, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11130
Non-Argument Calendar
____________________
JUSTIN WILLIS,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:20-cv-00594-GKS-GJK
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2 Opinion of the Court 22-11130
____________________
Before N EWSOM, BRASHER , and A BUDU , Circuit Judges.
PER CURIAM:
Justin Willis, a Florida prisoner, asks us to consider whether
a district court erred by denying his petition for habeas corpus. He
argues that the state court unreasonably applied clearly established
federal law when it denied his ineffective assistance of counsel
claim. But the district court rightly found that the state court rea-
sonably determined Willis did not suffer prejudice. Accordingly, af-
ter a careful review, we affirm.
I.
A jury convicted Justin Willis of murder and robbery in
2012. After he was sentenced to life in prison, he challenged his
conviction by arguing that his counsel, Leslie Sweet, ineffectively
assisted him during trial. As relevant to this appeal, she did not ob-
ject when the trial judge mistakenly limited Willis to nine peremp-
tory challenges, preventing him from excluding a juror who had
been the victim of a bank robbery. Sweet also failed to preserve
that issue for appeal.
The state court disagreed that Sweet ineffectively assisted
Willis and denied him any postconviction relief. So he petitioned
the federal district court for a writ of habeas corpus. But, again, he
faced resistance. The district court concluded that the state court
reasonably applied clearly established law in denying his ineffective
assistance claims and denied his petition.
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22-11130 Opinion of the Court 3
We granted a certificate of appealability on one issue: “[d]id
Willis’s trial counsel provide ineffective assistance, under Strickland
v. Washington, 466 U.S. 668 (1984), during jury selection with re-
spect to Willis’s peremptory challenges, and by failing to preserve
for appellate review any issue with the peremptory challenges?”
II.
We review a district court’s denial of a petition for a writ of
habeas corpus de novo. Bester v. Warden, 836 F.3d 1331, 1336 (11th
Cir. 2016). But we review only those issues specified in the certifi-
cate of appealability. Hodges v. Att’y Gen., State of Fla., 506 F.3d 1337,
1340–42 (11th Cir. 2007). And although the parties also disagree
whether Willis properly exhausted his claim in state court under 28
U.S.C. § 2254(b)(1)(A), we can skip that question if the petition is
easier to deny on the merits. Santiago-Lugo v. Warden, 785 F.3d 467,
475 (11th Cir. 2015).
III.
As relevant here, under the Antiterrorism and Effective
Death Penalty Act, a district court cannot grant a state prisoner’s
petition for a writ of habeas corpus unless the state court unreason-
ably applied clearly established federal law as determined by the
Supreme Court. See 28 U.S.C. § 2254(d)(1). Willis argues that the
state court unreasonably applied clearly established law when it de-
cided that Sweet effectively assisted him. We disagree.
A petitioner claiming ineffective assistance must establish
that his counsel’s performance was deficient and that the deficiency
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4 Opinion of the Court 22-11130
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). For the deficient performance component, he must estab-
lish that his counsel so seriously erred that counsel did not function
like one guaranteed by the Sixth Amendment. Id. For the prejudice
component, he must establish that his counsel’s errors were so se-
rious that they deprived him of a fair, or reliable, trial. Id. In other
words, he needs to establish that there is a reasonable probability
that, but for his counsel’s errors, the trial’s outcome would be dif-
ferent. Id. at 694.
Willis argues the state court unreasonably applied clearly es-
tablished federal law in deciding that he did not demonstrate prej-
udice from his counsel’s failure to object when the trial judge mis-
takenly limited him to nine peremptory challenges. Willis says, but
for Sweet’s errors, he would have been able to exclude juror four-
teen, which he argues would have changed the trial’s outcome. But
he points to nothing in the record that establishes that juror four-
teen held any bias against him, nor that this bias may have affected
the outcome of his trial.
Willis contends Garza v. Idaho holds that “no showing of
prejudice is necessary ‘if the accused is denied counsel at a critical
stage of his trial.’” 139 S. Ct. 738, 744 (2019) (citing United States v.
Cronic, 466 U.S. 648, 659 (1984)). And, citing Peretz v. United States,
501 U.S. 923, 934 (1991), and Gomez v. United States, 490 U.S. 858,
873 (1989), he says jury selection is a critical stage.
But Garza and Cronic refer to situations when a defendant
has no legal assistance, not when counsel is subpar. See Cronic, 466
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22-11130 Opinion of the Court 5
U.S. at 659 n.25 (noting that “[t]he Court has uniformly found con-
stitutional error without any showing of prejudice when counsel
was either totally absent, or prevented from assisting the accused
during a critical stage of the proceeding”). Sweet assisted Willis
during jury selection—just maybe not as well as he would have
liked.
Willis next argues that the state court unreasonably ignored
several federal court precedents—Garza, 139 S. Ct. 738, Roe v. Flo-
res-Ortega, 528 U.S. 470 (2000), and Davis v. Sec’y, Fla. Dep’t of Corr.,
341 F.3d 1310 (11th Cir. 2003). Taken together, he argues they sug-
gest that a petitioner can establish ineffective assistance if his appeal
suffered from his trial counsel’s error. Because Sweet failed to pre-
serve the peremptory challenge issue for appeal, he argues his ap-
peal was adversely affected, granting him a valid ineffective assis-
tance claim.
We disagree. The state court’s decision is not unreasonable
under Garza or Flores-Ortega. To meet the “unreasonable applica-
tion” standard, “a prisoner must show far more than that the state
court’s decision was merely wrong or even clear error.” Shinn v.
Kayer, 141 S. Ct. 517, 523 (2020) (quotation marks omitted). The
decision must be “so obviously wrong that its error lies beyond any
possibility for fairminded disagreement.” Id. (quotation marks
omitted). “A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as fair-minded jurists could
disagree on the correctness of the state court’s decision.” Harring-
ton v. Richter, 562 U.S. 86, 101 (2011) (quotation marks omitted).
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It is true that Garza and Flores-Ortega hold that “prejudice is
presumed ‘when counsel’s constitutionally deficient performance
deprives a defendant of an appeal that he otherwise would have
taken.’” Garza, 139 S. Ct. at 744 (quoting Flores-Ortega, 528 U.S. at
484). But this reasoning can be interpreted in two ways. First, we
could presume prejudice when the outcome of the defendant’s ap-
peal is adversely affected. Second, we could presume prejudice
when the defendant is deprived of any appellate proceeding at all.
In Davis, we arguably adopted the former position. 341 F.3d
at 1316. But our decision in Davis does not reflect clearly estab-
lished law under AEDPA. The question under AEDPA is whether
a state court unreasonably applied clearly established federal law as
determined by the Supreme Court. See 28 U.S.C.§ 2254(d)(1). Davis
is not a Supreme Court precedent. And, in Davis, we did not apply
AEDPA. Instead, we held on de novo review that a lower court
erred when it denied a habeas petition that raised ineffective assis-
tance of counsel for the failure to preserve a Batson claim. We ex-
plained that “the likelihood of a different outcome on appeal is the
appropriate focus of our inquiry” and held that it was unnecessary
for a petitioner to establish the likelihood of a different trial out-
come. See Davis, 341 F.3d at 1316. Our decisions on de novo review
are not controlling for purposes of AEDPA. See Hammond v. Hall,
586 F.3d 1289, 1340 n.21 (11th Cir. 2009). And we later recognized
that our decision in Davis is difficult to square with the Supreme
Court’s precedents. See Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir.
2006).
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22-11130 Opinion of the Court 7
For its part, the Florida Supreme Court has plainly adopted
the latter interpretation of Garza and Flores-Ortega. In Carratelli v.
State, 961 So. 2d 312, 322–23 (Fla. 2007), it thoughtfully engaged
with this issue. Specifically, the Florida Supreme Court explained
how its position was consistent with Flores-Ortega. It explained that
Flores-Ortega still “requir[ed] a showing of actual prejudice … when
the proceeding in question was presumptively reliable.” 961 So. 2d
at 322 (quoting 528 U.S. at 484). Under Flores-Ortega, courts only
“presum[ed] prejudice with no further showing from the defendant
of the merits of his underlying claims when the violation of the
right to counsel rendered the proceeding presumptively unreliable
or entirely nonexistent.” Id. (quoting 528 U.S. at 484). So the Flor-
ida Supreme Court concluded that the Supreme Court did not ac-
tually hold that prejudice should be presumed based on the out-
come of an appeal. Id. at 323. Instead, it thought the Supreme
Court meant “prejudice may be presumed when the defendant es-
sentially was deprived of any proceeding at all.” Id.
We cannot say the Florida Supreme Court’s interpretation
of these precedents is unreasonable. At least one circuit has echoed
its approach. See Taylor v. United States, 279 F. App’x 368, 369 (6th
Cir. 2008). And another recognized the debate and concluded that
both positions are reasonable. See Kennedy v. Kemna, 666 F.3d 472,
486 (8th Cir. 2012).
We make no comment about who is right about these prec-
edents. We conclude only that the Florida Supreme Court’s posi-
tion is not so unreasonable as to be beyond the possibility of fair-
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8 Opinion of the Court 22-11130
minded debate. Harrington, 562 U.S. at 101. Accordingly, the state
court did not unreasonably apply clearly established federal law as
determined by the Supreme Court when deciding that Willis
needed to demonstrate prejudice for his ineffective assistance
claim. Because we cannot say the state court unreasonably decided
that Willis cannot demonstrate prejudice, we need not consider
Sweet’s alleged deficient performance. See Strickland, 466 U.S. at
697.
IV.
For the reasons above, the district court is AFFIRMED.
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