Antonio Bernard Cochran v. David Frazier , 377 F. App'x 870 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14520 ELEVENTH CIRCUIT
MAY 3, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-01518-CV-ODE-1
ANTONIO BERNARD COCHRAN,
Petitioner-Appellant,
versus
DAVID FRAZIER,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 3, 2010)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Antonio Bernard Cochran appeals, pro se, the district court’s denial of his 28
U.S.C. § 2254 habeas petition. Cochran was convicted in 1998 of felony murder,
aggravated assault, and possession of a firearm, after shooting an unarmed person
who approached his car. He argues that he received ineffective assistance of
counsel on appeal because his attorney failed to argue the ineffectiveness of his
trial attorney in not requesting a jury instruction on the use of force in defense of
habitation. Cochran claims that in Benham v. State, 591 S.E.2d 824 (Ga. 2004),
the Georgia Supreme Court found on similar facts that an attorney’s failure to
request an instruction on the specific defense of habitation was ineffective
assistance of counsel. Therefore, Cochran argues, the state habeas court’s denial of
his ineffective-assistance claim was contrary to or an unreasonable application of
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984).
He also contends that the state court decision was based on an unreasonable
determination of the facts. Moreover, he asserts that the state habeas court violated
the Georgia Constitution by not following the decision of the Georgia Supreme
Court in Benham.
When reviewing the denial of a § 2254 petition, we review “questions of law
and mixed questions of law and fact, including ineffective assistance of counsel
claims, de novo, and review[s] findings of fact for clear error.” Pardo v. Secretary,
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Florida Dept. of Corrs., 587 F.3d 1093, 1098 (11th Cir. 2009). We may decline to
address an issue where a party fails to provide arguments on the merits in its brief.
See United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006).
A federal court may not grant a writ of habeas corpus for a state prisoner
where the claim was adjudicated on the merits by a state court unless the state
habeas court’s decision “was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). A federal court may grant relief,
however, if the state court’s adjudication of the claim “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.” Id. at § 2254(d)(2).
A state court decision is “contrary to” clearly established federal law if either
“(1) the state court applied a rule that contradicts the governing law set forth by
Supreme Court case law, or (2) when faced with materially indistinguishable facts,
the state court arrived at a result different from that reached in a Supreme Court
case.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). “[O]nly Supreme
Court precedent can clearly establish the law.” Van Poyck v. Florida Dept. of
Corrs., 290 F.3d 1318, 1322 n.4 (11th Cir. 2002). An “unreasonable application”
of clearly established federal law may occur if the state court “identifies the correct
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legal rule from Supreme Court case law but unreasonably applies that rule to the
facts of the petitioner’s case.” Putman, 268 F.3d at 1241. “An unreasonable
application may also occur if a state court unreasonably extends, or unreasonably
declines to extend, a legal principle from Supreme Court case law to a new
context.” Id.Criminal defendants have a right to effective assistance of counsel.
Strickland, 466 U.S. at 684-86, 104 S. Ct at 2063. To prevail on a claim of
ineffective assistance of counsel, the defendant must demonstrate both (1) that his
counsel’s performance was deficient, i.e., the performance fell below an objective
standard of reasonableness, and (2) that he suffered prejudice as a result of that
deficient performance. Id. at 687-88, 104 S. Ct at 2064-65. A court need not
“address both components of the inquiry if the defendant makes an insufficient
showing on one.” Id. at 697, 104 S. Ct. at 2069. “The inquiry into whether a
lawyer has provided effective assistance is an objective one: a petitioner must
establish that no objectively competent lawyer would have taken the action that his
lawyer did take.” Van Poyck, 290 F.3d at 1322.
“To establish deficient performance, a defendant must show that his
counsel’s representation fell below an objective standard of reasonableness in light
of prevailing professional norms at the time the representation took place.”
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Cummings v. Secretary for Dept. of Corrections, 588 F.3d 1331, 1356 (11th Cir.
2009) (quotation omitted). “In judging the reasonableness of counsel’s
performance, the issue is not what is possible or what is prudent or appropriate, but
only what is constitutionally compelled[, and performance must fall] . . . . outside
the wide range of professionally competent assistance” to be considered deficient.
Id. (quotation omitted). “The Federal Constitution imposes one general
requirement: that counsel make objectively reasonable choices.” Id. (quotation
omitted). “Courts indulge a strong presumption that counsel’s performance was
reasonable and that counsel made all significant decisions in the exercise of
reasonable professional judgment.” Id. (quotation omitted). We have “held many
times that reasonably effective representation cannot and does not include a
requirement to make arguments based on predictions of how the law may
develop.” Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (quotation
omitted).
Georgia law allows a person to use force to prevent or terminate another
person’s unlawful entry into or attack upon a habitation. However, the person
may only use deadly force if, inter alia, “the entry is attempted in a violent and
tumultuous manner and he reasonably believes that the entry is attempted . . . for
the purpose of assaulting or offering personal violence to any person . . . therein
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and that such force is necessary to prevent the assault or offer of personal
violence.” See O.C.G.A. § 16-3-23(1) (1997). In July 1998 the Georgia legislature
added to the governing statutory title a definition of habitation, and such definition
included a motor vehicle. O.C.G.A. §16-3-24.1;
http://www.legis.ga.gov/legis/1997_98/leg/fulltext/hb1360.htm.
In Benham, the Georgia Supreme Court held that trial counsel provided
ineffective assistance of counsel when she failed to request a jury instruction on the
use of force in defense of habitation. 591 S.E.2d at 825. According to the
evidence, the defendant was in her car, and she slashed the victim, who was
attacking from the outside, with a box cutter. Id. The victim struck the first blow
by attacking the defendant through the car window, and it took two attempts to
restrain the victim from continuing the attack. Id. at 825-26. Defense counsel
requested a self-defense instruction, but did not request an instruction on defense
of habitation because she believed self-defense was the best defense for the
defendant. Id. at 826. The Georgia Supreme Court held that counsel was
ineffective under Strickland for not requesting the habitation instruction because
that defense allowed the use of deadly force even if such force “was not necessarily
required” to repel the attack. Id. at 826-27.
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The state habeas court’s decision was not contrary to clearly established
federal law because the state court utilized the proper Strickland standard to
determine whether Cochran’s appellate counsel was ineffective, and there does not
exist a Supreme Court case with facts that are materially indistinguishable from the
instant case. Furthermore, the state habeas court’s decision did not involve an
unreasonable application of Strickland. Specifically, trial counsel was not
ineffective for failing to predict either the addition of the definition of habitation
(which included automobiles) to the statutory scheme or the Benham holding and,
therefore, appellate counsel was not ineffective for failing to argue that trial
counsel was ineffective on this ground. We decline to address Cochran’s
conclusory assertion that the state habeas court’s decision was based on an
unreasonable interpretation of the facts in light of the evidence.
AFFIRMED. 1
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Cochran’s request for oral argument is denied.
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