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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12898
Non-Argument Calendar
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D.C. Docket No. 4:18-cv-00309-RH-MJF
ERIC MICHAEL CRAPSER,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(May 17, 2021)
Before ROSENBAUM, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Eric Crapser, a counseled Florida prisoner, appeals the district court’s denial
of his petition for a writ of habeas corpus filed under
28 U.S.C. § 2254. The district
court granted a certificate of appealability as to whether trial counsel rendered
ineffective assistance by failing to request a lesser-included-offense instruction.
Crapser was charged with sexual battery (Count I) and lewd or lascivious
molestation (Count II) of his seven-year-old stepdaughter. Crapser’s trial counsel
requested a lesser-included-offense instruction for Count I, but not for Count II. The
jury ultimately found Crapser guilty of misdemeanor battery, a lesser-included
offense of Count I, and of lewd or lascivious molestation as charged in Count II. He
was sentenced to time served for the battery offense and twenty-five years in prison
for the molestation offense, followed by a lifetime on sex offender probation. The
Florida courts affirmed his convictions and denied his motion for postconviction
relief. Crapser then filed a federal § 2254 petition, which the district court denied.
Crapser appeals, arguing that his trial counsel rendered ineffective assistance
under Strickland v. Washington,
466 U.S. 668 (1984), by failing to request a lesser-
included-offense jury instruction as to Count II. He contends that, had his trial
counsel requested such an instruction, there is a reasonable probability that the jury
would have convicted him of the lesser offense, as it did on Count I, notwithstanding
that the evidence supported his conviction for the greater offense.
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We review the district court’s denial of a state prisoner’s § 2254 petition de
novo but review the state habeas court’s decision with deference. Reed v. Sec’y, Fla.
Dep’t of Corr.,
593 F.3d 1217, 1239 (11th Cir. 2010); Wright v. Sec’y for Dep’t of
Corr.,
278 F.3d 1245, 1254–55 (11th Cir. 2002).
To succeed on an ineffective-assistance-of-counsel claim, a defendant must
show that his counsel’s performance was deficient and that the deficient
performance prejudiced his defense. Strickland,
466 U.S. at 687. The prejudice
prong requires the petitioner to show that there is a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.”
Id. at 694. In evaluating prejudice, according to Strickland, “a court
should presume, absent challenge to the judgment on grounds of evidentiary
insufficiency, that the judge or jury acted according to law. An assessment of the
likelihood of a result more favorable to the defendant must exclude the possibility
of arbitrariness, whimsy, caprice, ‘nullification,’ and the like.”
Id. In other words,
“[a] defendant has no entitlement to the luck of a lawless decisionmaker.”
Id. at 695.
Under
28 U.S.C. § 2254(d), we may grant the writ of habeas corpus only if
the Florida appellate court’s decision denying Crapser relief on his Strickland claim
“was contrary to, or involved an unreasonable application of” Strickland, or “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).
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Crapser relies on the “unreasonable application” prong, arguing that the
Florida Supreme Court’s decision in Sanders v. State,
946 So. 2d 953, 960 (Fla.
2006), which held that the failure to request an instruction on a lesser-included
offense cannot establish Strickland prejudice as a matter of law, constitutes an
unreasonable application of Strickland.1 Crapser asserts that Strickland prohibits
such “bright-line” rules and instead requires courts to conduct case-specific
determinations of performance and prejudice.
In Sanders, the Florida Supreme Court explained that ineffective-assistance
claims alleging a failure to request an instruction on a lesser-included offense cannot
establish Strickland prejudice because they are based solely on the possibility of a
“jury pardon.” A jury pardon “allows the jury to acquit a defendant of a greater
offense and convict him or her of a lesser one even though the evidence supports
both crimes.”
946 So. 2d at 957–58. “By definition,” Sanders explains, “jury
pardons violate the oath jurors must take before trial, as well as the instructions the
trial court gives them.”
Id. at 958. These instructions require a jury to “render a true
verdict according to the law and the evidence” and to convict of a lesser-included
offense “only if it decides that the main accusation has not been proved beyond a
reasonable doubt.”
Id. So when a jury has convicted a defendant of a greater
1
Crapser’s factual claim—that the state court made an unreasonable determination of the
facts by failing to find prejudice—is entirely derivative of his legal challenge.
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offense, it has decided that guilt was proved beyond a reasonable doubt.
Id. “To
assume that, given the choice, the jury would now acquit the defendant of the same
crime of which it convicted him, and instead convict of a lesser offense, is to assume
that the jury would disregard its oath and the trial court’s instructions.”
Id. In other
words, “any finding of prejudice resulting from defense counsel’s failure to request
an instruction on lesser-included offenses necessarily would be based on a faulty
premise: that a reasonable probability exists that, if given the choice, a jury would
violate its oath, disregard the law, and ignore the trial court’s instructions.”
Id. at
959. Because defendants are not entitled to “the luck of a lawless decisionmaker”
under Strickland, the Court stated, the possibility of a jury pardon, which does not
call into question the validity of the offense of conviction, “cannot form the basis for
a finding of prejudice.”
Id. at 960.
Here, Crapser is not entitled to relief under § 2254. Under Florida law, a jury
must “render a true verdict according to the law and the evidence” and, therefore, a
jury is permitted to convict of a lesser included offense “only if it decides that the
main accusation has not been proved beyond a reasonable doubt.” Id. at 958; see
Williams v. Singletary,
78 F.3d 1510, 1515 (11th Cir. 1996) (stating that we are
bound by decisions of the relevant state supreme court when addressing issues of
state law). Strickland requires that we assume the jury in Crapser’s trial followed
this rule of law. See Strickland,
466 U.S. at 694 (“[A] court should presume, absent
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challenge to the judgment on grounds of evidentiary insufficiency, that the judge or
jury acted according to law.”). The jury concluded that the evidence against him
supported his conviction for the molestation offense on which it was instructed.
Therefore, even if the lesser-offense instructions had been given, the jury would not
have been permitted to convict Crapser of the lesser-included offenses because it
had concluded that the evidence established that he was guilty of the greater
offenses. See Sanders,
946 So. 2d at 958.
Crapser’s claim does not undermine the validity of his conviction or sentence
on Count II. 2 His assertion of prejudice depends, as he admits, on the possibility of
a jury pardon—that is, that the jury would have disregarded its oath and violated its
instructions by acquitting him of the greater offense and convicting him of a lesser
one even though the evidence supported both crimes. See
id. at 957–58. But he says
that the possibility of a jury pardon is sufficient to establish prejudice in this case
because the jury’s verdict affirmatively demonstrates that it violated its oath by
convicting him of a lesser-included offense on Count I, despite evidence supporting
the greater offense. So in his view, there is a reasonable probability that the jury
would have exercised the same leniency had trial counsel requested a lesser-
included-offense instruction on Count II.
2
Arguably, therefore, trial counsel’s alleged ineffective assistance did not result in
Crapser’s being held “in custody in violation of the Constitution or laws or treaties of the United
States.”
28 U.S.C. § 2254(a).
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Even if we assume he is right about that as a practical matter, though, that
reasoning cannot be squared with Strickland. In Strickland, the Supreme Court made
clear that “[a] defendant has no entitlement to the luck of a lawless decisionmaker”
and that the prejudice inquiry excludes the “particular idiosyncrasies” of the jury and
“the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like,” such
as a jury pardon.
466 U.S. at 695. These limitations follow from the nature of the
prejudice inquiry, which is “whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt respecting guilt.”
Id. It is
not, as Crapser proposes, whether the jury would have reached a different verdict for
any reason, such as a desire for mercy or leniency.
Because Crapser is not entitled to the “luck of a lawless decisionmaker,”
which is essentially all that he seeks, the state court reasonably concluded that he
had no recourse under Strickland, notwithstanding that the outcome of the trial may
have been more favorable had counsel requested lesser-included instructions as to
Count II. To the extent there is some fairminded disagreement among jurists as to
whether the failure to request a lesser-included-offense instruction can establish
Strickland prejudice, see Crace v. Herzog,
798 F.3d 840, 849 (9th Cir. 2015)
(“Nothing in Strickland, therefore, forbids courts from considering the possibility
that a jury would have convicted on a lesser included offense if given the option to
do so.”), that is not enough to show that the state court’s decision was an
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unreasonable application of Strickland. See Harrington v. Richter,
562 U.S. 86, 101
(2011) (“A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as fairminded jurists could disagree on the correctness of the
state court’s decision.” (quotation marks omitted)).
AFFIRMED.
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