Christin Bilotti v. Florida Department of Corrections

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11759

____________________

CHRISTIN BILOTTI,

Petitioner-Appellant,

versus

FLORIDA DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:22-cv-62068-RAR

____________________

Before ROSENBAUM, NEWSOM, and MARCUS, Circuit Judges.

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2 Opinion of the Court 23-11759

PER CURIAM:

Christin Bilotti was convicted of second-degree murder in

Florida state court. After exhausting her appeals, she sought post-

conviction relief in Florida. But Florida denied that relief. Then

Bilotti filed a federal habeas petition. The district court rejected

that claim. We granted a certificate of appealability on two of the

claims in Bilotti’s federal habeas petition.

First, Bilotti argues that her trial counsel was ineffective for

failing to preserve a religion-based challenge to the prosecution’s

strike of a prospective juror. So we must consider whether the

state court reasonably applied Strickland 1 in rejecting for lack of

prejudice Bilotti’s claim that her counsel failed to properly preserve

this voir dire issue for appeal.

But as things turn out, even if Bilotti can show prejudice on

this claim, she’s failed to meet the bar for deficient performance.

That’s so because at the time of Bilotti’s trial, the law was unsettled

as to whether, as a categorical matter, Batson 2 extends to religion-

based exclusions. So we can’t say that no reasonably competent

counsel, under then-prevailing professional norms, would have

failed to preserve this Batson claim for appeal.

To be sure, the certificate of appealability did not expressly

mention the deficient-performance aspect of Bilotti’s claim when it

noted the prejudice issue. But the district court ruled in the

1 Strickland v. Washington, 466 U.S. 668 (1984).

2 Batson v. Kentucky, 476 U.S. 79 (1986).

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23-11759 Opinion of the Court 3

alternative on the deficient-performance issue, and in any case, cer-

tificates of appealability do not limit our obligation to consider

whether other parts of the governing legal analysis would neces-

sarily cause a claim to fail on the record before us. Here, Bilotti’s

failure to show deficient performance means she cannot prevail on

her Strickland claim, even if she can show prejudice.

Second, Bilotti asserts that her trial counsel was ineffective

for failing to object to the court’s second-degree murder and “prin-

cipal” jury instructions. To show both deficiency and prejudice un-

der Strickland here, Bilotti must first establish that the jury instruc-

tions were erroneous. So the second issue we consider concerns

whether the state court reasonably found that Bilotti failed to show

that the jury instructions were erroneous when it rejected her

claim about trial counsel’s failure to object to them.

This claim fails, too. The state trial court used second-

degree murder and “principal” instructions that were substantively

identical to Florida’s standard jury instructions. And Florida’s high-

est court has repeatedly said that trial counsel can’t be deficient for

failing to object to standard jury instructions, when the Supreme

Court of Florida has not yet invalidated them. As the propriety of

state-court jury instructions presents an issue of state law, we must

defer to the Florida courts. Because Bilotti can’t show that these

instructions were likely erroneous under Florida law, she hasn’t es-

tablished that her counsel performed deficiently in failing to object

to their use. Nor has she shown prejudice because her argument

was unlikely to prevail in the state courts on appeal.

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4 Opinion of the Court 23-11759

For these reasons, we affirm the district court’s judgment.

I. BACKGROUND

A Florida jury indicted Christin Bilotti, her father Michael

Bilotti, his friend John Pacchiana, and two others on charges of

first-degree murder and conspiracy to commit first-degree murder,

for the 2005 killing of Richard Rojas. Bilotti was seventeen years

old at the time.

The evidence at trial established that Bilotti told her father

that Rojas—her on-again, off-again boyfriend—had raped her. Bi-

lotti’s father asked his friends to come over, and they discussed

finding Rojas. After Bilotti, Rojas, Bilotti’s father, and his friends

convened at Bilotti’s mother’s house, Pacchiana shot and killed Ro-

jas. At trial, the state urged the theory that Bilotti lured Rojas to

her mother’s house, knowing that Pacchiana intended to kill him.

The jury convicted Bilotti of the lesser-included crime of

second-degree murder on Count I, and it returned a not-guilty ver-

dict on the conspiracy count. The trial court sentenced Bilotti to

30 years’ imprisonment, plus two years on community control and

eight years of probation.

Bilotti raised a few issues on appeal. But we discuss only

those matters relevant to the Batson and jury-instruction

ineffective-assistance claims before us now.

A. Voir Dire

During jury selection, the state used a peremptory challenge

to strike a Black Jehovah’s Witness prospective juror (“Juror”).

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After defense counsel asked for “a race neutral reason” for the

strike, the prosecutor responded that it “gives [him] pause” that the

Juror is a Jehovah’s Witness because “they’ve always said they can’t

sit in judgment.” Defense counsel replied, “That’s a religious based

strike.” The court then asked the Juror directly how her religion

may affect her ability to be fair and impartial. She said that she

could make a decision fairly based on the evidence at trial, but that

she may be unable to sit impartially at the sentencing.

The court then heard counsels’ arguments about the state’s

attempt to strike the Juror. Defense counsel once again objected,

this time asking for “a race neutral reason” for the strike; and the

court overruled the race-based objection. The court found that the

Juror was excluded for a non-race-based reason—her religion—and

denied the challenge. But the court noted that the defense’s chal-

lenge to the Juror was “preserved.”

Five days later, before the jury was sworn in, defense coun-

sel moved for a mistrial and to select a new jury, now invoking a

religion-based objection to the Juror’s exclusion. The trial court

declined to extend Batson to religion but said that “all of [defense

counsel’s] objections are . . . preserved at this time.”

B. Jury Instructions

The next critical moment, for our purposes, occurred at the

jury-instructions phase of the trial. In charging the jury, the court

described the elements of the second-degree murder charge as fol-

lows:

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6 Opinion of the Court 23-11759

First, that Mr. Rojas is dead.

Second, the death was caused by the criminal act or

acts of Michael Bilotti, Christin Bilotti, and John Pacchiana.

And, Third, there was an unlawful killing of Richard

Rojas by an act imminently dangerous to another and

demonstrating a depraved mind without regard for human

life.

An “act” includes a series of related actions arising

from and performed pursuant to a single design or purpose.

An act is “imminently dangerous to another and

demonstrating a depraved mind” if it is an act or series of

acts that:

One, a person of ordinary judgment would know is

reasonably certain to kill or do serious bodily injury to an-

other; and,

Two, is done from ill will, hatred, spite, or an evil in-

tent; and,

Three, is of such a nature that the act itself indicates

an indifference to human life.

In order to convict of second degree murder, it is not neces-

sary for the State to prove the defendants had an intent to cause

death.

Trial Tr. at 4549–50, Doc. 9-3 (emphasis added).

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Besides the offense instructions, the court also gave the fol-

lowing “principal” instruction, which applied to Count I:

If a defendant helped another person or persons com-

mit or attempt to commit a crime, the defendant is a princi-

pal and must be treated as if they had done all the things the

other person or persons did if:

One, the defendant had a conscious intent that the criminal

act be done; and, Two, the defendant did some act or said

some word which was intended to and which did incite,

cause, encourage, assist, or advise the other person or per-

sons to actually commit or attempt to commit the crime.

To be a principal, the defendant does not have to be

present when the crime is committed or attempted.

Id. at 4555–56 (emphasis added).

Defense counsel did not object to these instructions.

C. Direct Appeal

On direct appeal, the Florida intermediate appellate court at

first reversed the second-degree murder conviction. Bilotti v. State,

238 So. 3d 827, 827 (Fla. Dist. Ct. App. 2018), review granted, decision

quashed, No. SC18-673, 2020 WL 2617044 (Fla. May 22, 2020). It

did so, it explained, “for all the reasons stated in” Pacchiana’s ap-

peal. Id. (citing Pacchiana v. State, 240 So. 3d 803, 805 (Fla. Dist. Ct.

App. 2018) (“Fourth DCA Case”), decision quashed, 289 So. 3d 857

(Fla. 2020)). Pacchiana, as we’ve noted, was one of Bilotti’s code-

fendants who also argued that the state’s peremptory strike

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8 Opinion of the Court 23-11759

violated Batson v. Kentucky, 476 U.S. 79 (1986). The Fourth DCA

agreed, concluding the state’s strike was pretextual, improper as a

religion-based strike, and an “impermissible ‘religious test’ in vio-

lation of the United States and Florida Constitutions.” Pacchiana,

240 So. 3d at 805; see also id. at 810–16. Based on these findings, the

Fourth DCA reversed Pacchiana’s and Bilotti’s convictions and re-

manded for a new trial. Id. at 816; Bilotti, 238 So. 3d at 827.

The Supreme Court of Florida then quashed the Fourth

DCA’s decision, as applied to both Pacchiana and Bilotti. Bilotti,

2020 WL 2617044, at *1; State v. Pacchiana, 289 So. 3d 857 (Fla.

2020). The state’s highest court did not reach the issue of the reli-

gion-based Batson challenge on the merits, instead finding that the

two petitioners had failed to properly preserve it at trial. Pacchiana,

289 So. 3d at 858. The Supreme Court of Florida determined the

objection was “unpreserved” because Florida law requires both

(1) a contemporaneous objection to a strike and (2) the renewal of

that objection before the court swears in the jury. Id. at 861. But

here, defense counsel failed to assert a religion-based contempora-

neous objection, so the issue wasn’t preserved; and the court con-

cluded it couldn’t consider the issue any further. Id. at 862. On

remand, the Fourth DCA affirmed Bilotti’s conviction and sen-

tence in accordance with the Florida Supreme Court’s ruling. Bi-

lotti v. State, 298 So. 3d 659, 660 (Fla. Dist. Ct. App. 2020) (per cu-

riam).

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D. State Postconviction Proceedings

Bilotti then initiated state postconviction proceedings. Two

issues she raised are relevant here. We summarize each of them,

along with the parties’ arguments, because the state postconviction

trial court adopted the state’s arguments as the bases for its denial

of Bilotti’s claims.

First, Bilotti argued that trial counsel was ineffective in fail-

ing to properly preserve the religion-based Batson challenge, and if

counsel had preserved it, she would’ve won on appeal. Bilotti as-

serted that in assessing prejudice for an unpreserved claim, we

should look to the effect of the error on her direct appeal, citing

Davis v. Secretary for the Department of Corrections, 341 F.3d 1310

(11th Cir. 2003) (per curiam). And if we do that here, she contin-

ued, we know that she suffered prejudice because this claim at first

did prevail on appeal. See Pacchiana, 240 So. 3d at 805, 816.

And second, Bilotti contended that defense counsel was in-

effective for failing to object to the second-degree-murder jury in-

structions and that she’d suffered prejudice as a result. As to coun-

sel’s performance, Bilotti asserted that the instructions the court

gave on the intent requirement—which provided that “it is not nec-

essary for the State to prove the defendants had an intent to cause

death,” and that she had to have had “a conscious intent that the

criminal act be done”—were erroneous.

In Bilotti’s view, these instructions conflicted with the way

that a Florida appellate court described the elements for a second-

degree-murder conviction on a principals theory in Hedgeman v.

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10 Opinion of the Court 23-11759

State, 661 So. 2d 87, 88 (Fla. Dist. Ct. App. 1995). Hedgeman was a

sufficiency-of-the-evidence case. See id. The court there said that

“to establish that Hedgeman was a principal to the crime commit-

ted by another, the state had to prove that Hedgeman intended the

crime be committed and did some act to assist the other person in

actually committing the crime.” Id. (emphasis added). But given a

lack of evidence that the defendant “knew that [the killer] intended

to kill the victim,” and “[a]bsent any testimony to establish that [the

killer] planned to kill the victim that night and that Hedgeman

knew of his plans,” the court determined that the state had not

proven that “Hedgeman intended that the crime be committed.”

Id. As a result, the court reasoned, the evidence was insufficient to

convict Hedgeman, on a principal theory, of second-degree mur-

der. Id. at 89. Bilotti argues that the court’s instruction that the

state did not have to prove that “the defendants had an intent to

cause [Rojas’s] death” conflicts with Hedgeman.

As for prejudice, Bilotti pointed to a juror’s email to the

judge after trial, noting that the juror had had trouble convicting

Bilotti. As the juror explained her conflict, she “felt that . . . [Bilotti]

did not mean for [Rojas] to be killed.” Bilotti asserted that this

shows the jury misunderstood the required mens rea to convict her

of second-degree murder as a principal.

The state countered Bilotti’s arguments on these issues. On

the voir dire claim, the state urged that, to show prejudice under

Strickland, Bilotti had to establish that “a biased juror actually

served on the jury.” See Jenkins v. State, 824 So. 2d 977, 982 (Fla.

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Dist. Ct. App. 2002). Not only that, the state said, but Bilotti’s reli-

ance on Davis was “without merit.” In the state’s view, Davis is

narrow, and the Florida Supreme Court expressly rejected Davis

and its reasoning in Carratelli v. State, 961 So. 2d 312 (Fla. 2007). So

the state postconviction court shouldn’t look to the effect of coun-

sel’s alleged error on Bilotti’s appeal, the state argued.

Rather, the state asserted that Carratelli and King v. State, 211

So. 3d 866, 887–88 (Fla. 2017) (per curiam), controlled. These de-

cisions reiterated that “when considering the failure to preserve a

challenge to potential jurors in voir dire, the reviewing court

should focus on the defendant’s trial, not his appeal” in assessing

prejudice. Id. at 887. And they explained that, “[u]nder such cir-

cumstances, . . . a defendant must show that a biased juror served

during the defendant’s trial to satisfy Strickland’s [prejudice] re-

quirement.” Id. Based on these cases, the state argued that the

state postconviction court should deny Bilotti’s claim because she

hadn’t shown that a biased juror sat on her jury. On this voir dire

issue, the state was silent on Strickland’s deficient-performance

prong.

As for Bilotti’s jury-instructions claim, the state described Bi-

lotti’s reliance on Hedgeman as “misplaced.” As the state saw things,

the Hedgeman court “reversed the conviction based on insufficient

evidence, not on an erroneous jury instruction.” And unlike in

Hedgeman, the state continued, the state court here had found on

direct appeal that sufficient evidence supported Bilotti’s conviction.

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12 Opinion of the Court 23-11759

The state postconviction court denied Bilotti’s petition. It

stated simply that it “adopt[ed] the reasoning as set forth in the re-

sponse of the State, which contains a thorough recital of the rele-

vant issues and law.” State v. Bilotti, No. 08-3720CF10B, 2021 Fla.

Cir. LEXIS 12698, at *1 (Fla. Cir. Ct. Nov. 15, 2021). When Bilotti

appealed, the state postconviction appellate court affirmed per cu-

riam, without explaining its reasons. Bilotti v. State, 345 So. 3d 1284

(Fla. Dist. Ct. App. 2022) (per curiam). So the most recent expla-

nation we have from the state courts for their denial of Bilotti’s

Strickland claims comes from the state trial court’s rejection of her

petition, based on the reasons that the state’s response to Bilotti’s

petition set forth.

This matters to the review we must conduct under the An-

titerrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. 104–132, 110 Stat. 1214. After all, when the state court does

not explain its reasoning, we must “‘look through’ the unexplained

decision to the last related state-court decision that does provide a

relevant rationale,” “presum[ing] that the unexplained decision

adopted the same reasoning.” Wilson v. Sellers, 584 U.S. 122, 125

(2018).

E. Federal Habeas Petition

Bilotti next filed her Section 2254 petition. The district court

denied her petition, adopting the reasons that the magistrate

judge’s report and recommendation (“R&R”) set forth.

The R&R found that the state courts reasonably applied

Strickland when they rejected Bilotti’s claims. For the voir dire

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claim, the R&R concluded that the state courts were “bound to fol-

low” King and Carratelli when they required Bilotti to show that a

biased juror sat on her jury, to prevail on the prejudice prong. And

the R&R distinguished Davis’s decision to look to the effect on ap-

peal because it was an AEDPA case that applied de novo review—

not AEDPA deference—since the state courts in Davis’s case didn’t

opine on the merits of the Strickland claim there. And because Da-

vis isn’t clearly established Supreme Court law, the R&R reasoned,

Bilotti cannot rely on it under AEDPA. So the R&R determined

that Bilotti failed to establish prejudice. The R&R added that Bi-

lotti would lose on deficient-performance grounds, too. As the

R&R reasoned, counsel couldn’t have performed below an objec-

tively reasonable standard because three Florida appellate judges

thought counsel had adequately preserved the religion-based objec-

tion.

On the jury-instructions claim, the R&R again recom-

mended denying Bilotti’s petition. Noting that the trial court’s in-

structions to the jury were identical to Florida’s standard jury in-

structions, the R&R reasoned that they weren’t erroneous. The

R&R also rejected Bilotti’s argument that Hedgeman showed that

the instructions were erroneous. In the magistrate judge’s view,

Hedgeman could be reconciled with the standard jury instructions

because second-degree murder is a general-intent crime, so all the

state needs to show is a “conscious intent to participate in a de-

praved-mind act.” R&R at 30–32, Doc. 12 (quoting Jamerson v.

State, 677 So. 2d 1299, 1301 (Fla. Dist. Ct. App. 1996) (per curiam)

(Pariente, J., dissenting)). And because the R&R determined that

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14 Opinion of the Court 23-11759

the jury instructions weren’t erroneous, it likewise concluded that

Bilotti’s counsel wasn’t deficient in failing to object to their use and

that the instructions didn’t prejudice Bilotti.

The district court agreed with the R&R in full, denying Bi-

lotti’s petition.

We granted a certificate of appealability on two issues:

(1) Whether, in denying Bilotti’s claim that trial counsel failed

to properly preserve an issue for appeal, related to the state’s

allegedly improper use of a peremptory strike to remove a

potential juror from the venire, the state court reasonably

applied Strickland v. Washington, 466 U.S. 668 (1984), in con-

cluding that she could not establish prejudice?; and

(2) Whether, in rejecting Bilotti’s claim that trial counsel failed

to object to the jury instructions, the state court reasonably

found that she did not demonstrate that the jury instructions

were erroneous?

II. DISCUSSION

On a Section 2254(d) petition, we review de novo the district

court’s conclusions on legal issues and mixed questions of law and

fact. Terrell v. GDCP Warden, 744 F.3d 1255, 1261 (11th Cir. 2014).

We review for clear error the district court’s factual findings. Id.

A. Legal Standard

AEDPA “imposes a highly deferential standard for review-

ing the state court rulings on the merits of constitutional claims

raised by a petitioner.” Id. Under Section 2254(d), federal courts

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may grant habeas relief only if the claim either “(1) resulted in a

decision that was contrary to, or involved an unreasonable applica-

tion of, clearly established Federal law, as determined by the Su-

preme Court of the United States; or (2) 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.” 28 U.S.C.

§ 2254(d).

Bilotti brings claims under Section 2254(d)(1). Under that

section, “contrary to” and “unreasonable application” set high bars

for relief (or low bars for the state courts). As we’ve explained,

The phrase “contrary to” means that the state court decision

applied a rule that contradicts the governing law set forth by

the United States Supreme Court, or when faced with mate-

rially indistinguishable facts, it arrived at a result that differs

from Supreme Court precedent. An “unreasonable applica-

tion” of clearly established federal law occurs when “the

state court correctly identifies the governing legal princi-

ple . . . but unreasonably applies it to the facts of the partic-

ular case.”

Terrell, 744 F.3d at 1261 (quoting Bell v. Cone, 535 U.S. 685, 694

(2002)) (other citations omitted).

And the Supreme Court has clarified that an “unreasonable”

application of the law requires more than a merely “incorrect” ap-

plication of it. See Williams v. Taylor, 529 U.S. 362, 410 (2000). So

long as “some fairminded jurists could agree with the state court’s

decision,” we must deny habeas relief. Loggins v. Thomas, 654 F.3d

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1204, 1220 (11th Cir. 2011). Put simply, AEDPA imposes a “highly

deferential” standard of review. Renico v. Lett, 559 U.S. 766, 773

(2010) (citation and internal quotation marks omitted).

That said, AEDPA’s deferential review applies only if the

state court adjudicated the claim on the merits. But if no state court

did so, then AEDPA’s deferential standard of review doesn’t apply,

and we review the claim de novo. Reaves v. Sec’y, Fla. Dep’t of Corr.,

872 F.3d 1137, 1151 (11th Cir. 2017).

Like AEDPA, Strickland, too, is deferential. The test looks

for (1) counsel’s deficient performance and (2) prejudice. To show

deficient performance, the movant must establish “that counsel

made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Strickland, 466 U.S. at 687–88. That is, counsel’s performance must

have fallen below “an objective standard of reasonableness,” under

“prevailing professional norms.” Id. So when it comes to counsel’s

performance, Strickland and AEDPA “combine to produce a dou-

bly deferential form of review that asks only ‘whether there is any

reasonable argument that counsel satisfied Strickland’s deferential

standard.’” Gissendaner v. Seaboldt, 735 F.3d 1311, 1323 (11th Cir.

2013) (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)). Our

job “is not to point out counsel’s errors, but to determine whether

counsel’s performance was below prevailing professional norms to

such an extent that the defendant was denied [the] Sixth Amend-

ment right to the assistance of counsel.” Nelson v. Nagle, 995 F.2d

1549, 1554 (11th Cir. 1993) (per curiam). And “because counsel’s

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conduct is presumed reasonable, for a petitioner to show that the

conduct was unreasonable, a movant must establish that no com-

petent counsel would have taken the action that his counsel did

take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000)

(en banc).

As far as prejudice goes, the movant must show that coun-

sel’s errors were “so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.

Indeed, the movant “must show that there is a reasonable proba-

bility 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 out-

come.” Id. at 694.

Finally, we need not address both prongs of the Strickland

inquiry if a petitioner fails to satisfy one. See Terrell, 744 F.3d at

1262. Given AEDPA and Strickland’s high bar, “it is a rare case in

which a petitioner obtains federal habeas relief on an ineffective as-

sistance of counsel claim that the state court denied on the merits.”

Id.; see also Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298,

1301 (11th Cir. 2019) (acknowledging how “difficult” this “stringent

standard” is).

Bilotti has not met this bar here.

B. Even if she suffered prejudice, Bilotti has failed to show deficient

performance on her voir dire claim.

Bilotti asks us to review her voir dire claim de novo. She

asserts that the state courts unreasonably applied Strickland’s

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18 Opinion of the Court 23-11759

prejudice prong in requiring her to show that a biased juror sat on

her jury. If we were to review the claim de novo, Bilotti argues,

we should apply Davis and find the prejudice prong satisfied. After

all, Bilotti urges, but for her counsel’s alleged error, she would’ve

won on appeal.

Our recent precedent might support Bilotti’s claim. In

Guardado v. Secretary, Florida Department of Corrections, we held that

Florida’s requirement for a petitioner to show that a biased juror

sat on her jury unreasonably applies Strickland’s prejudice prong.

See 112 F.4th 958, 990–94 (2024). We reached that decision because

Carratelli’s “heightened actual bias test” imposes a more stringent

standard than Strickland’s “reasonable probability test,” which is

“more lenient[.]” Id. at 990–91. So we said that Carratelli unrea-

sonably applied Strickland. Id. at 991–95. For that reason, we con-

cluded we didn’t owe any deference to the state court’s determina-

tion under AEDPA. Id. at 992 (citing Calhoun v. Warden, Baldwin

State Prison, 92 F.4th 1338, 1347–49 (11th Cir.), cert. denied sub nom.

Calhoun v. Warden, 145 S. Ct. 443 (2024); Debruce v. Comm’r, Ala.

Dep’t of Corr., 758 F.3d 1263, 1266 (11th Cir. 2014)).

Assuming Guardado governs, 3 we’d conclude that the state

court unreasonably applied Strickland’s prejudice prong to Bilotti’s

3 The posture of the case in Guardado differed from the posture of Bilotti’s case.

For instance, Guardado involved an ineffective-assistance claim where counsel

failed to challenge or peremptorily strike certain allegedly biased jurors, see

Guardado, 112 F.4th at 981, and not a failure to preserve a challenge to a partic-

ular juror, id. at 990 n.3. Guardado also arose in the context of voir dire during

the penalty phase of a capital trial, id. at 966, so the relevant prejudice standard

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23-11759 Opinion of the Court 19

case, the same way it did to Guardado’s: by holding Bilotti to a

higher standard than Strickland allows. So we’d review the preju-

dice prong de novo for the voir dire claim. See Calhoun, 92 F.4th at

1347–49; Debruce, 758 F.3d at 1266. In doing so, we’d apply Davis

and find that Bilotti has established prejudice here. That is, a rea-

sonable probability exists that, but for counsel’s failure to preserve

the religion-based objection, the outcome on appeal would have

been different. In fact, it’s more than a reasonable probability be-

cause we know the outcome would’ve been different. Indeed, the

Fourth DCA originally ruled in Bilotti’s favor on the religion-based

Batson challenge. Pacchiana, 240 So. 3d at 805; see also Herring v.

Sec’y, Dep’t of Corr., 397 F.3d 1338, 1354–55 (11th Cir. 2005) (observ-

ing that where a Florida court “already has told us how the issues

would have been resolved under Florida state law,” “[i]t is a ‘fun-

damental principle that state courts are the final arbiters of state

law, and federal habeas courts should not second-guess them on

such matters’” (citation omitted)).

But even if Bilotti can prevail on the prejudice prong, she has

failed to establish that her counsel was unconstitutionally deficient.

there was “whether the petitioner has shown ‘a reasonable probability that,

absent [counsel’s] errors, the sentencer . . . would have concluded that the

balance of aggravating and mitigating circumstances did not warrant death,’”

id. at 990 (citation omitted). Still, as we explained in Guardado, these differ-

ences were seemingly immaterial to the Court’s analysis of the Carratelli

framework, because Carratelli “set out a unified prejudice standard for claims

of ineffective assistance in ‘failing to preserve or raise a cause challenge before

a jury is sworn.’” Id. at 990 n.3 (quoting Carratelli, 961 So. 2d at 327).

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20 Opinion of the Court 23-11759

From the start, we must reject Bilotti’s assertion that consid-

ering the district court’s alternative holding that Bilotti’s Strickland

claim fails on the deficiency prong extends beyond the scope of the

certificate of appealability (“COA”). To be sure, we generally re-

view only the issues that the certificate of appealability specifies.

Freeman v. Comm’r, Alabama Dep’t of Corr., 46 F.4th 1193, 1215 (11th

Cir. 2022). That said, we “construe the issue specified in the COA

‘in light of the pleadings and other parts of the record.’” Id. (quot-

ing Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (per

curiam)); cf. id. (adding that we also construe the COA “to encom-

pass any issue that ‘must be resolved before reaching the merits’ of

a claim identified in the COA” (citation omitted)).

Certificates of appealability don’t somehow alter the normal

rule that “we may affirm on any ground the record supports.” See

Santos v. United States, 982 F.3d 1303, 1309 n.3 (11th Cir. 2020). The

statute providing for certificates of appealability, 28 U.S.C. § 2253,

does not suggest otherwise. In relevant part, the statute provides

that a litigant may not appeal “the final order” in a Section 2255

proceeding “[u]nless a circuit justice or judge issues a certificate of

appealability[.]” 28 U.S.C. § 2253(c)(1). Then the statute sets forth

the requirements for COAs, which “may issue . . . only if the appli-

cant has made a substantial showing of the denial of a constitu-

tional right.” Id. § 2253(c)(2). And the COA “shall indicate which

specific issue or issues satisfy the showing required by paragraph

(2).” Id. § 2253(c)(3).

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23-11759 Opinion of the Court 21

This text limits only what a movant may appeal, not what

the court may consider. Indeed, none of this language purports to

suggest that we can’t affirm on any alternative ground that the rec-

ord supports. Once a specific ground for appeal is before us, we

may decide the case like any other appeal. 4

That’s especially so in a case like this one, where the district

court made an alternative holding denying relief on the claim. In-

deed, when the district court denied Bilotti’s Juror-related Strick-

land claim, it alternatively reasoned that counsel had not per-

formed deficiently. And we’ve explained that, “[t]o obtain reversal

of a district court judgment that is based on multiple, independent

grounds, an appellant must convince us that every stated ground

4 The U.S. Supreme Court appears to have suggested as much in Jennings v.

Stephens, 574 U.S. 271 (2015). In Jennings, a habeas petitioner had obtained

relief in the district court on two of his original three theories of ineffective

assistance. Id. at 273. On appeal, the petitioner attempted to defend the dis-

trict court’s judgment on all three grounds. Id. The Court considered whether

he needed to first obtain a COA to argue the third theory, which the district

court had rejected below. Id. It concluded that the petitioner did not. Id. at

282. As the Court explained, the requirement for the petitioner to obtain a

certificate of appealability, by the plain text of Section 2253(c), “does not em-

brace the defense of a judgment on alternative grounds.” See id. at 282–83. In

other words, Section 2253(c) does not require the petitioner, when defending

the judgment below, to obtain a COA to make an alternative-grounds argu-

ment when the record supports it. See id.; see also id. at 279 (stating, in explain-

ing that the petitioner needn’t obtain a cross-appeal either to advance this the-

ory, that “even a successful applicant . . . defending his judgment on appeal is

confined to those alternative grounds present in the record” (emphasis in origi-

nal)). The same reasoning applies here, only more so, given that the district

court alternatively held that Bilotti failed to establish deficient performance.

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22 Opinion of the Court 23-11759

for the judgment against him is incorrect.” Sapuppo v. Allstate Flo-

ridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).

For her part, Bilotti recognized her burden to establish both

prongs of her Strickland claim on appeal, despite the COA’s focus

on Strickland’s prejudice prong. See Tuomi v. Sec’y, Fla. Dep’t of

Corr., 980 F.3d 787, 795 (11th Cir. 2020) (noting that the movant

bears the burden at all times to show “both that (1) [her] counsel’s

performance was deficient; and (2) the deficient performance prej-

udiced [her] defense” (emphases added)). And she briefed and ar-

gued the deficient-performance issue. As we’ve explained,

“[f]ailure to establish either [Strickland] prong is fatal and makes it

unnecessary to consider the other.” Id.

For this reason, even “when a state court’s decision on an

ineffective assistance claim clearly rests on only one prong of the

Strickland test, we conduct a plenary review of the other one, if

necessary.” See, e.g., Reaves, 872 F.3d at 1151; see also Tuomi, 980

F.3d at 795. So we consider the deficient-performance issue for this

claim, even though the certificate of appealability expressly dis-

cussed only the prejudice prong.

As we’ve noted, the state court made no findings on the mer-

its of the deficient-performance prong. So we review that issue de

novo. Reaves, 872 F.3d 1137, 1151.

In conducting our review, we keep in mind that when the

law was “unsettled” at the time of counsel’s challenged action, we

don’t generally find that counsel rendered constitutionally ineffec-

tive assistance. See Jones v. United States, 224 F.3d 1251, 1258 (11th

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23-11759 Opinion of the Court 23

Cir. 2000). To the contrary, we’ve repeatedly stated that effective

assistance of counsel does not require counsel to predict how the

law might develop. See Sullivan v. Wainwright, 695 F.2d 1306, 1309

(11th Cir. 1983); Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir.

1994).

And that’s exactly the problem for Bilotti here. To be sure,

Bilotti points to two Florida appellate decisions suggesting that

counsel should have been on notice that the state’s religion-based

use of a peremptory challenge could have been unconstitutional.

But as we explain, these two cases did not settle the law in Florida

for purposes of a deficient-performance inquiry under Strickland.

The first case explains that Batson-like challenges can be

“properly applied” outside the context of race-based exclusions

alone. See Joseph v. State, 636 So. 2d 777, 779 (Fla. Dist. Ct. App.

1994). The court there found that excluding a venireperson from

the jury for being Jewish was unconstitutional. Id. at 780–71. The

second case Bilotti relies on found constitutional error when a pro-

spective juror was excluded “either” because of his Pakistani eth-

nicity or his Muslim beliefs. See Olibrices v. State, 929 So. 2d 1176,

1180 (Fla. Dist. Ct. App. 2006). 5

To understand why these cases didn’t establish that religion-

based strikes violate the Sixth Amendment or the Florida

5 Bilotti also cites a Minnesota case involving the exclusion of a Jehovah’s Wit-

ness during voir dire. See State v. Davis, 504 N.W.2d 767, 772 (Minn. 1993).

But of course, a Minnesota case could not settle the law in Florida.

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24 Opinion of the Court 23-11759

constitution, we recount the line of Florida cases applying Batson

and Florida’s state constitutional Batson analogs: State v. Neil, 457

So. 2d 481 (Fla. 1984), and State v. Slappy, 522 So. 2d 18 (Fla. 1988).

Like a Batson challenge, a “Neil-Slappy objection” alleges that the

opposing party struck a prospective juror from the venire solely

because of her race. See Jones v. State, 923 So. 2d 486, 490 (Fla. 2006).

The Florida Supreme Court has been clear that it addresses the ap-

plicability of Neil-Slappy to “other groups . . . as such cases ar[i]se.”

State v. Alen, 616 So. 2d 452, 454 (Fla. 1993) (emphasis added). In-

deed, Joseph itself stated as much. See 636 So. 2d at 779 (“While Neil

involved racial discrimination, the [Florida] Supreme Court recog-

nized that discrimination could be based upon other factors, such

as religious, ethnic, and sexual differences, and specifically stated

that ‘[t]he applicability [of this decision] to other groups will be left

open and will be determined as such cases arise.’” (quoting Neil,

457 So. 2d at 487)).

By the time of Bilotti’s trial, the Supreme Court of Florida

had extended Neil-Slappy violations to exclusions based on a pro-

spective juror’s race, gender, and ethnicity. See Dorsey v. State, 868

So. 2d 1192, 1202 n.8 (Fla. 2003) (collecting cases). But the Florida

Supreme Court explained that it had “not extended Neil’s protec-

tions beyond” those groups—such as to any “other economic, so-

cial, religious, political, or geographic group . . . .” Id. (emphasis

added). Neil prohibited peremptory strikes based on race alone.

457 So. 2d at 482. Alen did so based on Hispanic ethnicity. 616 So.

2d at 454. And Florida explicitly added gender to the list in Abshire

v. State, 642 So. 2d 542, 544 (Fla. 1994).

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23-11759 Opinion of the Court 25

But neither Olibrices nor Joseph clearly added religion as a cat-

egory, full stop. Rather, both cases dealt with the exclusion of pro-

spective jurors from the venire for apparently dual ethnicity- and

religion-based reasons.

We consider Olibrices first. There, the Fourth DCA deter-

mined that Neil-Slappy covered Pakistani Muslims as a class because

the state had “excluded [the juror] because of his ethnicity.” 929

So. 2d at 1180. Rather than categorically including religion as a

qualifying classification, the court explained that “Dorsey’s dis-

claimer of any holding applying Neil Slappy equally to the singular

classification of religion does not yield the conclusion that the princi-

ple may not be applied where a common religious heritage is also

involved in the shared identity of a given ethnic group.” Id. at 1178

(emphases added). In other words, the court reasoned that just be-

cause the Florida Supreme Court had expressly recognized in

Dorsey that it had not extended Neil-Slappy to religion as a category,

this did not preclude the Fourth DCA from applying Neil-Slappy

when the state struck the juror because of his ethnicity and his reli-

gion. Indeed, the court explained that the Pakistani Muslim popu-

lation’s “culture, language, history and—yes—its religion, make it

objectively and discernibly large, distinct and homogeneous

enough to be deemed an ethnic group capable of identification.” Id.

at 1179 (emphasis added). For that reason, the court continued, “it

was error for the trial judge to conclude that no ethnicity violation

could be shown because Pakistanis are not recognizable as an ethnic

group under Neil Slappy.” Id. at 1180 (emphases added).

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26 Opinion of the Court 23-11759

True, the court mentioned religion in its analysis. And the

court said that “whether the juror was challenged because he is of

Pakistani origin or because his religious belief is Muslim, it would

be a Neil Slappy violation to exercise a peremptory challenge of him

on either account.” Id. But in context, it’s clear that the court so

held based on its conclusion that Pakistani Muslims were a “recog-

nizable . . . ethnic group under Neil Slappy.” Id. (emphasis added).

In fact, the Fourth DCA was careful to thread the needle between

the Florida Supreme Court’s failure at that time to recognize reli-

gion as a categorical basis for prohibited juror strikes and its recog-

nition of ethnicity as an acknowledged basis for prohibited juror

strikes. So it certainly wouldn’t have been objectively unreasona-

ble for a competent attorney to read Olibrices as not supporting a

challenge to the striking of a juror solely because the potential juror

was a Jehovah’s Witness.

The Third DCA threaded the needle the same way in Joseph.

It started by noting that it addressed only “the narrow question” of

whether “Jews constitute a cognizable class under Alen . . . .” 636

So. 2d at 780 (emphasis added). In concluding they do, the court

determined that Jews meet the Florida Supreme Court’s definition

of a “cognizable class,” which, the court said, “applies only to ethnic

groups.” See id. at 780 & n.2 (emphasis added). That definition

requires satisfaction of a two-part test under Alen: (1) “the group’s

population is large enough that the general community recognizes

it as an identifiable group,” and (2) the group is “internal[ly] cohe-

sive.” Id. at 780. As the court explained, the Jewish population in

Dade County, from which the venire panel was drawn, comprised

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23-11759 Opinion of the Court 27

about 10% of the population, making it “large enough that the gen-

eral community recognizes it as an identifiable group.” Id. Plus,

Jews’ shared religious customs and persecution established their

“internal cohesiveness . . . .” Id.

Like Olibrices, Joseph did not establish that religion-based

strikes categorically violate Florida’s constitution (or the U.S. Con-

stitution, for that matter). Rather, Joseph added to the list of Florida

cases that confirmed that Florida addressed Batson-type challenges

to peremptory strikes on a case-by-case basis. See Alen, 616 So. 2d

at 454; Joseph 636 So. 2d at 779. (And Joseph did not consider federal

law at all. See Joseph, 636 So. 2d at 781 (“We are careful to point out

that our decision is grounded upon principles of state constitutional

law. . . . [W]e do not analyze this issue under the federal constitu-

tion or caselaw.”)).

That brings us to Pacchiana, which as we’ve noted, involved

Bilotti’s codefendant. When the Fourth DCA addressed the ques-

tion of whether Batson covers Jehovah’s Witnesses, it discussed Jo-

seph and Olibrices. Pacchiana, 240 So. 3d at 813–14. The court ob-

served that each case found the respective group member pro-

tected because they were members of a “cognizable class” that met

the two-prong Alen test. Id. Then the court concluded that mem-

bers of the Jehovah’s Witnesses also met that test. See id.

In its discussion, the court characterized Olibrices as having

held that “striking a potential juror due to his or her religious faith

is unconstitutional.” Id. at 814. But as we’ve explained, that’s not

quite accurate. Olibrices and Joseph found the strikes there to violate

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28 Opinion of the Court 23-11759

Florida law because the stricken jurors were members of an “eth-

nic” group. To be sure, the jurors’ religious affiliations made or

assisted in making them members of an ethnic group. But the point

is, both Olibrices and Joseph studiously avoided holding that strikes

based on religion as religion necessarily violated the law.

In hindsight, extending the logic of Olibrices and Joseph to

cover Jehovah’s Witnesses like the Juror in Bilotti’s case might

seem obvious. But that’s not the standard for deficiency under

Strickland. The test is not “whether the best criminal defense attor-

neys might have done more,” but “whether some reasonable attor-

ney could have acted, in the circumstances, as [this attorney] did

. . . . ” Waters v. Thomas, 46 F.3d 1506, 1518 (11th Cir. 1995) (en

banc). For the same reason, it’s also “not enough” for petitioners

to assert simply that their counsel “was ignorant” of state law; ra-

ther, petitioners must show that their counsel took an approach

that “would not have been used by professionally competent coun-

sel.” Harich v. Dugger, 844 F.2d 1464, 1470 (11th Cir. 1988) (en

banc). This is a high bar.

Here, at the time of Bilotti’s trial, Florida had no established

rule that Batson categorically extends to religion-based exclusions.

Nor had any Florida court found a Batson violation for the exclu-

sion of a Jehovah’s Witness during voir dire. 6 As we’ve explained,

6 Cf. French v. Warden, Wilcox State Prison, 790 F.3d 1259, 1268–69 (11th Cir.

2015) (finding deficient performance where counsel “decided to introduce”

some evidence yet failed to “follow the clearly-established state law proce-

dures to preserve that evidence for appellate review”); see also id. (stating that

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23-11759 Opinion of the Court 29

Strickland requires us to assess counsel’s performance with “a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” 466 U.S at 689 (emphasis

added). Under the circumstance we’ve described, we can’t say Bi-

lotti’s trial counsel’s failure to lodge a religion-based Batson-type

challenge here fell below “an objective standard of reasonable-

ness,” under “prevailing professional norms,” such that counsel

failed to function adequately under the Sixth Amendment. See id.

at 687–88.

Plus, although we have found deficiency in the past when

counsel failed to raise a race-based Batson challenge during voir dire,

see, e.g., Davis, 341 F.3d at 1314; Jackson v. Herring, 42 F.3d 1350,

1360 (11th Cir. 1995), we’ve never found deficiency for the failure

to raise a religion-based challenge. That’s so because, as we’ve

noted, under Florida law, courts address these questions on a case-

by-case basis. See Alen, 616 So. 2d at 454. And under the state of

the law at the time of Bilotti’s trial, no Florida court had extended

Batson to religion-based claims as a categorical matter.

So Bilotti’s voir dire claim fails. In sum, even if she can show

prejudice, she’s failed to establish deficiency under Strickland.

counsel’s mistaken beliefs of law or “ignorance of a point of law that is funda-

mental to his case” can constitute deficient performance).

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30 Opinion of the Court 23-11759

C. The state court reasonably concluded that Bilotti failed to show the

jury instructions were erroneous.

Bilotti’s jury-instructions claim also fails. The problem is

that she can’t establish the jury instructions were likely erroneous.

As a result, Bilotti can show neither deficiency nor prejudice.

Bilotti argues that Hedgeman and another sufficiency-of-the-

evidence case suggest the state had to prove that Bilotti intended

to kill Rojas, or at least that she knew her father and Pacchiana in-

tended to do so. So in Bilotti’s view, the court’s instruction that

the state did not need to prove that “the defendants had an intent

to cause [Rojas’s] death” was erroneous. And because her attorney

did not object to this allegedly erroneous instruction, Bilotti con-

tinues, he performed deficiently. Plus, Bilotti argues, that allegedly

deficient performance prejudiced Bilotti. She asserts that an email

from a juror shows that the jury misunderstood the mens rea ele-

ment when it convicted her of second-degree murder on the prin-

cipal theory.

This argument fails. Whether the jury instructions were

correct is a matter of state law. Jones v. Kemp, 794 F.2d 1536, 1540

(11th Cir. 1986) (per curiam). That means we must defer to the

state courts’ construction of that law. See Pinkney v. Sec’y, DOC, 876

F.3d 1290, 1295 (11th Cir. 2017); see also Agan v. Vaughn, 119 F.3d

1538, 1549 (11th Cir. 1997).

Here, the jury charge on second-degree murder and the

principals instruction were substantively identical to Florida’s

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23-11759 Opinion of the Court 31

standard jury instructions at the time of Bilotti’s trial in 2015. 7 See

In re Standard Jury Instructions In Crim. Cases, 137 So. 3d 995, 1011

(Fla. 2014) (per curiam) (the second-degree murder charge); Stand-

ard Jury Instructions in Crim. Cases (95-2), 665 So. 2d 212, 214 (Fla.

1995) (per curiam) (the principals instruction). And the Supreme

Court of Florida had not invalidated the standard jury instructions

that the court used in her case.

The Supreme Court of Florida has repeatedly said that “trial

counsel’s failure to object to standard jury instructions that have

not been invalidated by this Court does not render counsel’s per-

formance deficient.” Thompson v. State, 759 So. 2d 650, 665 (Fla.

2000) (per curiam); accord Lukehart v. State, 70 So. 3d 503, 520 (Fla.

2011) (per curiam). So the state court reasonably concluded that

the jury instructions were not erroneous, denying Bilotti’s Strick-

land claim in turn. In other words, counsel’s failure to object to the

use of these standard jury instructions was not deficient perfor-

mance. See Thompson, 759 So. 2d at 665; Lukehart, 70 So. 3d at 520.

Nor was it prejudicial, given that the state court reasonably con-

cluded the jury instructions weren’t erroneous to begin with. See,

e.g., Pinkney, 876 F.3d at 1297; United States v. Winfield, 960 F.2d 970,

7 We look to the standard jury instructions in place at the time of Bilotti’s trial

because Strickland requires us to assess counsel’s performance at the time, and

not in hindsight. See 466 U.S. at 689. And the only differences between the

court’s instructions and Florida’s standard jury instructions were the trial

court’s use of an “a” instead of a “the” in one place, and a plural “defendants”

instead of the singular “defendant” in another. But Bilotti doesn’t challenge

these minute differences.

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32 Opinion of the Court 23-11759

974 (11th Cir. 1992) (per curiam) (“[A] lawyer’s failure to preserve

a meritless issue plainly cannot prejudice a client.”).

We don’t find Bilotti’s arguments to the contrary convinc-

ing. Neither Hedgeman nor the other case Bilotti relies on—Cornejo

v. State, 892 So. 2d 1160 (Fla. Dist. Ct. App. 2005)—requires the con-

clusion that the jury instructions here were likely erroneous. And

as intermediate appellate decisions, they couldn’t have made coun-

sel’s decision not to challenge Florida’s standard jury instructions

one that no reasonably competent attorney would have made. See

Lukehart, 70 So. 3d at 520.

On a more specific level, the magistrate judge thoughtfully

explained why Hedgeman and Cornejo cannot provide Bilotti relief.

In short, it’s because their statements of the elements required to

prove second-degree murder on a principal theory are not neces-

sarily inconsistent with the court’s instruction that the state didn’t

have to prove that “the defendants had an intent to cause death.”

Then-Judge Pariente explained this in her dissenting opinion in

Jamerson, 677 So. 2d at 1301 (Pariente, J., dissenting), and the Flor-

ida appellate court in Wright v. State, 402 So. 2d 493, 499 (Fla. Dist.

Ct. App. 1981), had reached the same conclusion. As then-Judge

Pariente explained, “second-degree murder is a general intent

crime,” so the state must prove only that the defendant intended

for a “depraved-mind act” to be committed. See Jamerson, 677 So.

2d at 1301 (Pariente, J., dissenting); accord Wright, 402 So. 2d at 499

(“[E]vidence that the aider and abettor knew that the principal had

a premeditated design to kill or a depraved mind, will support the

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23-11759 Opinion of the Court 33

aider and abettor’s conviction for . . . second degree murder.” (em-

phasis added)). In other words, Wright and the Jamerson dissent

suggest that Bilotti did not need to have intended for Rojas to be

killed, nor did she need to have known of her father’s or Pacchi-

ana’s specific intentions to kill Rojas; she needed only to have in-

tended for a “depraved-mind act” to occur.

Of course, Bilotti correctly observes that dissents are not

binding precedent. But then-Judge Pariente’s reasoning explains

how a reasonably competent attorney could have concluded that

the Florida standard jury instructions and Hedgeman could peace-

fully coexist. And in any case, as we’ve explained, Florida law re-

quires that the Supreme Court of Florida—not an intermediate appel-

late court—have invalidated standard jury instructions for a Strick-

land claim like this to prevail. See Thompson, 759 So. 2d at 665; Luke-

hart, 70 So. 3d at 520.

Last, Bilotti argues that even if the jury instructions from her

case matched the standard ones, her counsel still was ineffective for

failing to object to “inapplicable standard jury instructions.” But

Bilotti doesn’t explain how the jury instructions here were “inap-

plicable.” And given that the state sought to convict her of second-

degree murder on the principal theory as a lesser-included offense

of the charged offense (first-degree murder), it’s not self-evident to

us how they could be “inapplicable.” Indeed, in response to the

state’s noted confusion about this argument in its responsive brief,

Bilotti offered no reply.

So Bilotti’s jury-instructions claim fails.

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34 Opinion of the Court 23-11759

III. CONCLUSION

For the reasons we’ve described, we affirm the district

court’s judgment.

AFFIRMED.