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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-11587
Non-Argument Calendar
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D.C. Docket No. 5:16-cv-00684-CEH-PRL
CHESTER L. SCOTT,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 24, 2021)
Before NEWSOM, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
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Chester L. Scott, a Florida prisoner, appeals the district court’s denial of his
petition for a writ of habeas corpus filed under
28 U.S.C. § 2254. He contends that
the district court erred in denying his two claims of ineffective assistance of
counsel. First, Scott contends that his trial counsel was deficient for not
challenging the trial court’s instruction to the jury that it could find him guilty as a
principal to his charge of conspiracy to traffic in cocaine. Second, he argues that
his state appellate counsel was deficient for not raising the same issue on direct
appeal.
We review the district court’s denial of habeas corpus relief under
28 U.S.C.
§ 2254 de novo and any factual findings for clear error. Sims v. Singletary,
155
F.3d 1297, 1304 (11th Cir. 1998). An ineffective assistance of counsel claim is a
mixed question of law and fact that we review de novo.
Id. Our review under
§ 2254 is limited to the issues specified in the certificate of appealability (“COA”).
Spencer v. Sec’y, Dep’t of Corr.,
609 F.3d 1170, 1180 (11th Cir. 2010). 1
Under § 2254, as amended by the Antiterrorism and Effective Death Penalty
Act, a federal court may not grant habeas relief on a claim that was previously
adjudicated on the merits in state court, unless the adjudication was (1) “contrary
1
The district court granted a certificate of appealability to determine “whether Petitioner is
entitled to relief on the ground that his trial counsel and appellate counsel rendered ineffective
assistance in failing to object to the jury instructions challenged in Grounds Four and Five of the
petition.”
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to, or involved an unreasonable application of, clearly established [f]ederal law, as
determined by the Supreme Court,” or (2) “based on an unreasonable
determination of the facts in light of the evidence presented in the [s]tate court
proceeding.”
28 U.S.C. § 2254(d). A state court’s factual findings are presumed
correct absent clear and convincing evidence to the contrary. See
id. § 2254(e)(1).
A state-court decision is contrary to clearly established federal law if the
state court applied a rule that contradicted governing law set forth in a Supreme
Court case or if the state court confronted a set of facts that were materially
indistinguishable from those in a decision of the Supreme Court and nevertheless
arrived at a different result. Williams v. Taylor,
529 U.S. 362, 405-06 (2000). A
decision involves an unreasonable application of clearly established law if the
decision “correctly identifies the governing legal rule but applies it unreasonably to
the facts.”
Id. at 407–08. In determining unreasonableness, the court does not ask
whether the state court decided an issue correctly but whether the court’s decision
was objectively unreasonable. Renico v. Lett,
559 U.S. 766, 772 (2010).
A federal habeas court reviewing an unexplained state-court decision on the
merits should “look through” that decision to the last related state-court decision
that provides a relevant rationale and presume that the unexplained decision
adopted the same reasoning. Wilson v. Sellers,
138 S. Ct. 1188, 1193-96 (2018).
Where there is no underlying state court decision accompanied by a statement of
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reasons, a state court’s summary adjudication of a petitioner’s claim is still an
adjudication on the merits and is entitled to deference. Harrington v. Richter,
562
U.S. 86, 99-100 (2011).
To establish ineffective assistance of counsel, a petitioner must show that
(1) his attorney’s performance was deficient and (2) the deficient performance
prejudiced his defense. Strickland v. Washington,
466 U.S. 668, 687 (1984).
Deficient performance “requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.”
Id. To make such a showing, a defendant must demonstrate that
“no competent counsel would have taken the action that his counsel did take.”
United States v. Freixas,
332 F.3d 1314, 1319-20 (11th Cir. 2003) (internal
quotations omitted); Chandler v. United States,
218 F.3d 1305, 1314 n.15 (11th
Cir. 2000) (en banc). With respect to prejudice, the petitioner must show that there
is a “reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland,
466
U.S. at 694. Failure to establish either prong is fatal and makes it unnecessary to
consider the other.
Id. at 697.
When coupled with § 2254(d), Strickland review of a lawyer’s performance
is “doubly” deferential. See Harrington,
562 U.S. at 105. Under § 2254(d), “the
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question is not whether counsel’s actions were reasonable.” Id. Rather, “[t]he
question is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id. While a claim of “‘ineffective assistance—
even when based on the failure of counsel to raise a state law claim—is one of
constitutional dimension,’ we ‘must defer to the state’s construction of its own
law’ when the validity of the claim that appellate counsel failed to raise turns on
state law.” Pinkney v. Sec’y, Dept. of Corr.,
876 F.3d 1290, 1295 (11th Cir. 2017)
(quoting Alvord v. Wainwright,
725 F.2d 1282, 1291 (11th Cir. 1984)).
Under Florida law, evidence that a defendant aided or abetted another in the
commission of an offense is sufficient to convict the defendant as a principal to the
offense, but insufficient to convict the defendant of a conspiracy to commit the
subject offense. Evans v. State,
985 So. 2d 1105, 1106 (Fla. Dist. Ct. App. 2007).
Giving an instruction on the law of principals in conjunction with a conspiracy
offense creates a danger that a jury could find the defendant guilty of being a
member of the conspiracy if it concludes that he aided or abetted the underlying
crime.
Id. at 1107. Florida appellate courts thus have consistently vacated the
defendant’s conspiracy conviction when the principal instruction was given in
conjunction with a conspiracy offense. See, e.g., Hilbert v. State,
992 So. 2d 441,
441 (Fla. Dist. Ct. App. 2008).
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In Florida, “[j]ury instructions are subject to the contemporaneous objection
rule, and in the absence of a contemporaneous objection at trial, relief regarding
error in the instructions can be granted on appeal only if that error is fundamental.”
Floyd v. State,
850 So. 2d 383, 403 (Fla. 2002). For an error to be fundamental, it
“must reach down into the validity of the trial itself to the extent that a verdict of
guilty could not have been obtained without the assistance of the alleged error.”
Brown v. State,
124 So. 2d 481, 484 (Fla. 1960).
Here, the Florida state court’s decision denying Scott’s claims of ineffective
assistance of trial and appellate counsel was not objectively unreasonable.
Because the last state court decision—the Fifth District Court of Appeal’s per
curiam decision, Scott v. State,
198 So. 3d 639 (Fla. Dist. Ct. App. 2015)—is
unexplained, we “look through” to the state trial court’s decision. See Wilson,
138
S. Ct. at 1193–96. With respect to ineffective assistance of trial counsel, the state
circuit court denied the claim because counsel’s failure to object to the principal
instruction didn’t prejudice Scott. The state court based its decision on the
overwhelming evidence admitted against Scott in trial, including 30 intercepted
phone call recordings pertaining to drug trafficking, video evidence showing Scott
picking up cocaine, and the testimony of Kadrinne Brewton and Ivan Starkes about
their drug activity with Scott. Thus, the court explained, Scott’s argument that he
was convicted only because of the principal jury instruction was merely
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“speculation.” In light of the strong evidence presented against Scott at trial that
supported the conspiracy to traffic in cocaine charge, we cannot say that the state
court’s decision was objectively unreasonable. Scott has not shown how the state
court unreasonably applied Strickland or shown by clear and convincing evidence
that the state court made an unreasonable determination of the facts.
Because trial counsel did not object to the principal jury instruction, Scott’s
ineffective assistance of appellate counsel claim turns on whether the alleged trial
error is “fundamental” under Florida law. If the error is not fundamental, then
Scott’s appellate counsel would have been procedurally barred from raising it on
appeal, and so he could not have been ineffective for failing to raise it. See Floyd,
850 So. 2d at 403; Pinkney, 876 F.3d at 1298–99. It appears that Florida courts are
split on whether a trial court’s giving the principal instruction in conjunction with a
conspiracy offense constitutes a fundamental error. Compare Rondon v. State,
157
So. 3d 360, 362 (Fla. Dist. Ct. App. 2015) (Fourth District holding error is not
fundamental), with Hilbert,
992 So. 2d at 441 (Third District holding error is
fundamental). The state trial court here sided with the Fourth District and ruled
that the error was not fundamental, and the Fifth District summarily affirmed.
Given that whether an error is “fundamental” is a question of Florida law, “it is not
[our] role to examine the propriety” of that decision. Pinkney, 876 F.3d at 1298–
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99. Thus, we cannot conclude that it was objectively unreasonable for the state
court to reject Scott’s ineffective assistance of appellate counsel claim.
AFFIRMED.
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