Torrance L. Jenkins v. Secretary Department of Corrections , 520 F. App'x 871 ( 2013 )

Case: 11-14097 Date Filed: 05/31/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 11-13693, 11-14097
Non-Argument Calendar
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D.C. Docket No. 6:09-cv-01961-GKS-GJK
TORRANCE L. JENKINS,
a.k.a. Terry L. Davis,
Petitioner-Appellant,
versus
SECRETARY DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
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Appeals from the United States District Court
for the Middle District of Florida
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(May 31, 2013)
Before HULL, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
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Torrance Jenkins, a Florida prisoner proceeding pro se, appeals the district
court’s denial of his petition for writ of habeas corpus, filed pursuant to 28 U.S.C.
§ 2254, challenging his conviction for resisting an officer with violence. 1 We
consider only the claim on which the district court granted Jenkins a COA:
“whether counsel rendered ineffective assistance by failing to request a jury
instruction on the justifiable use of non-deadly force.” See Hodges v. Att’y Gen.,
State of Fla., 506 F.3d 1337, 1340 (11th Cir. 2007) (providing that our review is
limited to the issues specified in the COA). After review, we affirm the district
court’s denial of Jenkins’ §2254 petition.2
Jenkins’ request for federal habeas corpus relief is governed by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). Under § 2254(d), a federal court
may not grant habeas relief on claims that were denied on the merits in state court
unless the state court decision was (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
1
This appeal is consolidated with Jenkins’ appeal from the district court’s order denying
his motion to quash the order dismissing his case. Jenkins was not granted a Certificate of
Appealability (COA) as to the order denying his motion to quash and he has not made any
argument regarding that appeal in his brief. As such, we consider his appeal from the district
court’s order denying his motion to quash abandoned. See Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008) (“[I]ssues not briefed on appeal by a pro se litigant are deemed
abandoned.”).
2
A habeas petition based on ineffective assistance of counsel presents a mixed question
of law and fact that we review de novo. Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir.
1998).
2
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Court,” or (2) “based on an unreasonable determination of the facts in light of the
evidence presented” in the state court. 28 U.S.C. § 2254(d)(1)-(2). 3
The merits of an ineffective-assistance-of-counsel claim are governed by the
standard announced in Strickland v. Washington, 104 S. Ct. 2052 (1984). Under
Strickland, a petitioner must show both (1) that his “counsel’s performance was
deficient” and (2) that “the deficient performance prejudiced the defense.”
Strickland, 104 S. Ct. at 2064. Strickland is not applied de novo, “but rather
through the additional prism of AEDPA deference.” Lawrence v. Sec’y, Fla. Dep’t
of Corr., 700 F.3d 464, 477, 480 (11th Cir. 2012). Thus, “the pivotal question is
whether the state court’s application of the Strickland standard was unreasonable.”
Id. at 477 (internal quotation marks and alteration omitted).
With regard to the first element of § 2254(d)(1), there is no merit to Jenkins’
argument that the state court’s decision was contrary to clearly established federal
law because the state court utilized the Strickland standard. Jenkins argues the
court should have analyzed his claim under United States v. Cronic, 104 S. Ct.
2039 (1984), because his counsel’s failure to request a self-defense instruction
effectively denied him counsel at a critical stage of his trial. However, at no point
during his trial was Jenkins actually or constructively denied the presence of
3
Jenkins does not argue that the state court’s decision was based on an unreasonable
determination of the facts in light of the evidence, nor does he identify any facts that the state
court unreasonably determined.
3
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counsel. See Bell v. Cone, 122 S. Ct. 1842, 1851 & n.3 (2002). The failure to
request a jury instruction is a specific attorney error that is subject to Strickland’s
performance and prejudice components. Cf. id. at 1851-52 (holding that the failure
of an attorney to perform specific tasks was insufficient for the second Cronic
exception and should be judged under the Strickland standard). Thus, the state
court correctly identified the principles announced in Strickland as those governing
the analysis of Jenkins’ claim.
With regard to the second element of § 2254(d)(1), the state court did not
unreasonably apply Strickland to the facts of Jenkins’ case when it determined that
Jenkins failed to establish either deficient performance or prejudice. The state
court found that defense counsel’s conduct was not deficient and that an instruction
on the justifiable use of deadly force was inconsistent with the theory of the case
because Jenkins: (1) presented an actual-innocence defense and argued that any
violence was the result of his involuntary muscle reaction and that any allegations
otherwise were fabrications by the officer; and (2) did not present any evidence of
the affirmative defense of self-defense. This was not an unreasonable conclusion
based on Florida precedent regarding jury instructions. See Bertolotti v. State, 534
So. 2d 386, 387 (Fla. 1988) (holding defense counsel was not ineffective for failing
to request a jury instruction that was not warranted by the evidence); Phillips v.
State, 874 So. 2d 705, 707 (Fla. 1st DCA 2004) (holding the trial court correctly
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denied a self-defense instruction where the defendant refused to acknowledge that
he even wielded a knife).
As for prejudice, Jenkins must show a reasonable probability that the
outcome of the proceedings would have been different but for the alleged
deficiency in counsel’s performance. Strickland, 104 S. Ct. at 2068. The state
court’s determination that Jenkins was not prejudiced as a result of his counsel’s
actions was not unreasonable because any request for an instruction on the
justifiable use of deadly force would likely have been denied where no evidence of
self-defense was presented. See Phillips, 874 So. 2d at 707.
AFFIRMED.
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