Larry Felton White, Jr. v. Secretary, Department of Corrections

USCA11 Case: 24-10739 Document: 35-1 Date Filed: 08/13/2025 Page: 1 of 22

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10739

Non-Argument Calendar

____________________

LARRY FELTON WHITE, JR.,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

FLORIDA ATTORNEY GENERAL,

Respondents-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:20-cv-01384-HES-MCR

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2 Opinion of the Court 24-10739

____________________

Before JILL PRYOR, NEWSOM, and GRANT, Circuit Judges.

PER CURIAM:

Larry White, Jr., a Florida prisoner serving a life sentence for

second-degree murder, appeals the district court’s denial of his

28 U.S.C. § 2254 petition for a writ of habeas corpus. After careful

consideration of the parties’ briefs and the record, we affirm.

I.

White, a Black man, had a strained relationship with his

next-door neighbor, Kevin Drew, a white man. One morning in

January 2006, White returned home after running errands. He says

that when he exited his car, Drew approached him, yelled racial

epithets at him, threatened to kill him, and punched him in the

face. White then pulled out a gun and pointed it at Drew. White

chased Drew approximately 175 feet onto a neighbor’s property

and shot him three times. By the time emergency personnel arrived

on the scene, Drew had died from the gunshot wounds.

After the shooting, White was charged in Florida state court

with second-degree murder. In this section, we review the proceed-

ings in White’s criminal case. We then discuss his direct appeal, his

post-conviction proceedings in Florida state court, and his habeas

proceedings in federal court.

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A.

In his first state criminal trial, a jury convicted White of sec-

ond-degree murder. But a Florida appellate court reversed the con-

viction because the trial court erred in instructing the jury on man-

slaughter, a lesser-included offense. White v. State, 16 So. 3d 1004

(Fla. Dist. Ct. App. 2009).

While awaiting retrial, White moved to dismiss the charges

against him. He argued that he was immune from prosecution be-

cause he was justified in using deadly force under the version of

Florida’s Stand Your Ground law in effect at the time of the shoot-

ing. See Fla. Stat. § 776.032 (2006) (“A person who uses force as per-

mitted in s. 776.012 . . . is justified in using such force and is im-

mune from criminal prosecution . . . . As used in this subsection,

the term ‘criminal prosecution’ includes arresting, detaining in cus-

tody, and charging or prosecuting the defendant.”). At that time,

§ 776.012 provided that a person was “justified in the use of deadly

force and d[id] not have a duty to retreat” if he “reasonably be-

lieve[d] that such force [was] necessary to prevent imminent death

or great bodily harm to himself . . . or another or to prevent the

imminent commission of a forcible felony.” Id. § 776.012 (2006).

White argued that the charge against him should be dismissed be-

cause at the time of the shooting he reasonably believed that deadly

force was necessary to prevent Drew from causing him imminent

death or great bodily harm or committing a forcible felony.

After an evidentiary hearing, the state trial court denied

White’s motion to dismiss. After weighing the evidence from the

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hearing, it concluded that White had not shown by a preponder-

ance of evidence that he was justified in using deadly force to de-

fend himself.

In September 2014, the case proceeded to a second trial. A

few months before the second trial, Florida amended its Stand Your

Ground law to add a provision that a person is justified in using

deadly force only if he “is not engaged in a criminal activity and is

in a place where he . . . has a right to be” at the time he uses that

force. See 2014 Fla. Sess. Law Serv. Ch. 2014-195, § 3 (West).

At trial, White argued that he was entitled to immunity be-

cause at the time of the shooting, he reasonably believed that it was

necessary to use deadly force to keep Drew from causing him great

bodily harm or death or committing a forcible felony. The State

asserted that White was not entitled to immunity for two reasons.

First, at the time of the shooting, Drew had retreated and thus no

longer posed an imminent threat to White. Second, at the time of

the shooting White had trespassed on his neighbor’s property and

thus was not in a place where he had a right to be. We now discuss

the evidence introduced at trial in more detail.

At trial, the State called a number of witnesses including

Drew’s girlfriend, his sister, several police officers who investigated

the shooting and earlier incidents between Drew and White, a

neighbor who owned the property where the shooting occurred,

and a medical examiner who testified about the autopsy of Drew’s

body.

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Several of these witnesses testified about White and Drew’s

strained relationship. The jury heard about an incident that oc-

curred several days before the shooting when an alarm went off at

White’s home. Upon learning of the alarm, White came home to

find that someone had kicked in his front door and ransacked his

home. White told officers who responded to the alarm that he

thought Drew was responsible. In addition, Drew’s sister testified

that two days before the shooting White and Drew had a confron-

tation. During the confrontation, White brought out a gun and

threatened that Drew “would get his.” Doc. 12-13 at 81. 1 After that

incident, Drew’s sister called the police.

Drew’s girlfriend and his sister testified about the confronta-

tion between White and Drew that led to the shooting. That morn-

ing, they were gathered with Drew and others in the front yard of

Drew’s home. When White drove up, he jumped out of his car and

immediately began to argue with Drew. During the argument,

White and Drew both used profanity. White patted the right side

of his belt and said, “I got something for you, Big Boy.” Doc. 12-12

at 148.

Drew’s sister and girlfriend testified that during the confron-

tation, White pushed Drew in the chest. Drew responded by

punching White in the mouth and knocking out one of his teeth.

After Drew punched White, White pulled a gun out of his

waistband. Both Drew’s sister and his girlfriend described Drew’s

1 “Doc.” numbers refer to the district court’s docket entries.

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retreat after White pulled out the gun. Drew turned around and

ran away from White toward a neighbor’s property. White chased

Drew. After Drew fled into a neighbor’s fenced backyard, White

leaned over the fence, pointed his gun, and shot Drew multiple

times. Both Drew’s girlfriend and sister testified that after the

shooting White waved his gun and smiled. He then told Drew’s

sister that Drew “shouldn’t have knocked out my tooth.” Doc. 12-

13 at 62.

The State also called a medical examiner who testified about

the autopsy performed on Drew’s body. She reported that Drew

was shot three times and died of the gunshot wounds. She ex-

plained that one of the shots was to the back of his head and that

the shooter was about 18 inches from him at the time of the shoot-

ing.

The neighbor who owned the house where the shooting oc-

curred also testified. She stated that White did not have permission

to be on her property at the time of the shooting.

White called several witnesses to testify on his behalf. These

witnesses included neighbors who testified that Drew had a repu-

tation for violence. White also called his ex-wife as a witness. She

testified that Drew and his family displayed Confederate flags out-

side their house and that two days before the shooting Drew and

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his family called White names and “us[ed] the N word.” Doc. 12-

14 at 73. 2

White also called expert witnesses in crime scene recon-

struction and forensic pathology who opined about how the shoot-

ing occurred. The crime scene reconstruction expert testified,

based on the path of the gunshot wounds, that Drew was shot

twice in his left side and then once in the back of the head. He

opined that when the first shot was fired, Drew’s left side was

turned toward White. He determined based on blood splatter evi-

dence that the shooting occurred while Drew was climbing over

the neighbor’s fence. The crime scene expert testified that he could

not tell whether Drew’s body was turned to the side when the first

shot was fired because he was climbing over the fence or because

he was taking a fighting posture.

The forensic pathologist testified about the conclusions that

could be drawn from the autopsy of Drew’s body. Based on Drew’s

injuries, he testified that Drew was about three to four feet from

White when the shooting began and that his left side was facing

White. White also elicited testimony from the forensic pathologist

that it was possible that Drew was still alive after the second shot

and had turned to run away from White.

White testified in his own defense. He described the history

of his troubled relationship with Drew. He described one occasion

2 Because White’s ex-wife was not home at the time of the shooting, she did

not offer any testimony about what occurred during the incident.

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8 Opinion of the Court 24-10739

when he came home to find that his front door had been kicked

open, his house ransacked, and his property stolen. He said that

upon returning home, he found Drew lurking along the side of his

house.

White also discussed the confrontation that occurred two

days before the shooting. White testified that after going on a walk,

he encountered Drew. Drew and another man approached White,

swearing at him. Drew told White, “I’ll fuck you up, n*****”, be-

cause White had pointed Drew out to the police. Doc. 12-18 at 104.

White testified that his ex-wife called the police after this incident.

He stated that he was not carrying a gun during this confrontation

and denied pulling one out.

White described in detail what happened on the day of the

shooting. He explained that in the morning he drove to a corner

store. When he returned home, Drew and several other individuals

were gathered in Drew’s front yard. When White exited his car,

Drew and two other men approached him. Drew walked up to

White saying, “I’m going to kill you, you fucking n*****.” Id. at

116.

White begged Drew to calm down, but the conflict esca-

lated. White said that Drew’s sister joined the group of men and

began yelling, “Kick his ass. Beat his fucking ass.” Id. at 118. Drew

then punched White in the face, and White lost a tooth. White de-

nied pushing Drew before the punch.

White testified that after Drew punched him, he pulled out

a gun he was carrying in a holster in his waistband. He admitted

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that when he pulled out the gun, Drew ran away from him, and he

pursued Drew. White testified that while they were running, Drew

turned back to face him and put up his fists. White stated that he

fired his gun because he believed that Drew was going to attack

him and was in fear for his life.

On cross-examination, the prosecution confronted White

with several inconsistencies in his statements about the shooting.

The first inconsistency was about what White was doing on the

day of the shooting before the confrontation with Drew. Although

White testified that he had run to the corner store, when police

interviewed him shortly after the shooting, he reported working in

the yard for nearly two hours before the confrontation and did not

mention driving to a store. Instead, he told police that a friend had

used his car that morning.

The second inconsistency was about what Drew said to

White before punching him. In the police interview, White said

that immediately before the punch, Drew called him a “n*****”

and stated he was going to “beat [White’s] ass,” but White did not

mention that Drew threatened to kill him. Doc. 12-20 at 25. At trial,

White testified that Drew had threatened to kill him.

The third inconsistency was about whether White was car-

rying a gun when Drew punched him. White told police after the

shooting that after Drew punched him, he ran inside the house and

retrieved a gun from the kitchen. But at trial White testified that he

was carrying the weapon in a holster in his waistband.

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The fourth inconsistency was about the location of the

shooting. In the police interview, White initially stated that the

shooting occurred in his front yard and denied chasing Drew. But

when the police mentioned that they had not found any shell cas-

ings in White’s front yard, he admitted to pursuing Drew into the

neighbor’s yard.

At trial, when the State confronted White with these incon-

sistencies, he said that he had spoken with the police shortly after

the shooting. He testified that he had been in shock and had made

misstatements to the police because his brain was foggy after the

shooting.

Before closing arguments, the court held a charge confer-

ence. Both the State and White sought modifications to Florida’s

pattern instruction about when the use of deadly force is justified.

First, the State sought to remove language directing that the immi-

nent commission of a crime could be included as a circumstance

that would justify the use of deadly force. The court refused to

modify the charge because there was evidence that when White

shot Drew, White believed that Drew was going to punch him

again.

Second, defense counsel sought to add language to the pat-

tern instruction that the jury could consider Drew’s reputation for

violence. The court agreed to this modification.

Third, defense counsel asked the court to add an instruction

that the jury could consider that Drew was the initial aggressor.

The court refused to give this instruction because it concluded that

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whether Drew was the initial aggressor was irrelevant to whether

White’s use of force was justified because there was some evidence

that Drew had retreated when White pulled out the gun.

Fourth, defense counsel requested an instruction that

Drew’s retreat was not a factor for the jury to consider. The court

refused to give this instruction, stating that it was confusing.

In its closing, the State argued to the jury that White’s use

of force was not justified. First, the State argued that even if Drew

was the initial aggressor in the conflict, he was no longer a threat

to White at the time of the shooting. It explained that when White

pulled out the gun, Drew retreated and attempted to run away.

The State argued that once Drew retreated, White no longer had a

reasonable fear that Drew would cause him great bodily harm or

death or would commit an imminent felony.

The State also relied on a second theory about why White’s

use of deadly force was not justified. It argued that the shooting

had occurred on a neighbor’s property where White was trespass-

ing. It asserted that White’s use of deadly force was not justified

because at the moment of the shooting he was engaged in an un-

lawful activity—that is, trespassing onto his neighbor’s property

while armed.

In his closing, White argued that the jury should find his use

of force justified. He argued that at the moment of the shooting

Drew had turned back to face him and re-engaged in the attack,

leaving White in fear for his life.

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After closing arguments, the court charged the jury. It

charged that the issue in the case was whether “the death of Kevin

Drew resulted from the justifiable use of deadly force.” Doc. 12-22

at 12. It explained that a person was justified in using deadly force

and did not commit a crime if he “reasonably believe[d] that such

force [was] necessary to prevent . . . imminent death or great bod-

ily harm to himself or another, or . . . the imminent commission of

an aggravated battery against himself.” Id. It added that the use of

deadly force was not justified if the jury found that Drew, in good

faith, withdrew from the physical contact with White and clearly

indicated that he wanted to withdraw and stop the use of force, but

White continued to use or resumed the use of force.

The court also instructed the jury that to be authorized to

use deadly force, White could not have been committing another

crime at the time he used deadly force. It explained that if White

“was not engaged in an unlawful activity and was attacked in any

place where he had a right to be,” then he “had the right to stand

his ground and meet force with force including deadly force, if he

reasonably believed that it was necessary to do so to prevent death

or great bodily harm to himself or to prevent the commission of a

forcible felony.” Id. at 12–13. The upshot of this portion of the in-

struction was that the jury was told that White was not authorized

to use deadly force if he was committing another crime—such as

armed trespass—at the time he shot Drew.

The jury found White guilty of second-degree murder. It

also found that White possessed and discharged a firearm during

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the commission of the offense that caused Drew’s death. The trial

court sentenced White to life imprisonment.

B.

White appealed. He raised several issues on direct appeal,

including whether the trial court erred in instructing the jury on

the justifiable use of force. He argued that the court’s jury instruc-

tions about Drew’s retreat included an incorrect statement of the

law and misled the jury. Florida’s First District Court of Appeal af-

firmed without a written opinion.

C.

White then sought postconviction relief in Florida state

court. He filed a motion under Florida Rule of Criminal Procedure

3.850 in state circuit court seeking post-conviction relief. In the mo-

tion, he raised several claims, including that his trial counsel was

ineffective in failing to object to the jury instruction that White had

a duty to retreat if he was engaged in unlawful activity. White ex-

plained that at the time of his trial in 2014, the Florida legislature

had recently amended the Stand Your Ground law to provide that

a person was not justified in using deadly force if he was engaged

in unlawful activity when he used the force. Because the version of

the law in effect at the time of the shooting did not contain a similar

provision, White argued that the court erred in instructing the jury

that a person was not justified in using deadly force if he was en-

gaged in an unlawful activity at the time. He argued that his trial

counsel rendered ineffective assistance by failing to object to the

instruction.

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14 Opinion of the Court 24-10739

He also argued that he was prejudiced by the erroneous in-

struction. He pointed out that the State had elicited testimony from

the neighbor who owned the property where Drew was shot that

White had no permission to enter her property. And in closing ar-

guments, the prosecutor argued that White had committed an

armed trespass on the neighbor’s property and that his use of force

was not justified because he was engaged in unlawful activity at the

time of the shooting.

The state post-conviction court denied the Rule 3.850 mo-

tion. As to the ineffective assistance claim based on trial counsel’s

failure to object to the jury instruction about unlawful activity, the

court concluded that trial counsel had not been ineffective. It ex-

plained that trial counsel had challenged the jury instructions about

“retreat and self-defense” and that counsel was not ineffective

simply because the trial judge had made an adverse ruling. Doc. 12-

37 at 3. White appealed the denial of his Rule 3.850 motion. Flor-

ida’s First District Court of Appeal affirmed without opinion.

White also filed a petition for habeas corpus in Florida’s First

District Court of Appeal. He alleged that he received ineffective as-

sistance on appeal because his attorney failed to raise on direct ap-

peal a challenge to the jury instruction regarding justified use of

force and unlawful activity. The court denied the petition without

an opinion.

D.

White filed a federal habeas petition pursuant to 28 U.S.C.

§ 2254. He alleged that he received ineffective assistance of trial

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counsel because his counsel failed to object to the jury instruction

stating that the use of deadly force is not justified if a person is en-

gaged in unlawful activity. He also claimed that he received inef-

fective assistance of appellate counsel because appellate counsel did

not raise this issue on direct appeal.

The district court denied White’s petition. For the ineffec-

tive assistance of trial counsel claim, the court concluded that the

state court decision rejecting this claim was entitled to deference.

The court alternatively determined that even if the state court de-

cision was not entitled to deference, White’s claim failed on the

merits under de novo review.

The court concluded that the ineffective assistance of trial

counsel claim failed on the merits because trial counsel’s perfor-

mance was not deficient. The court noted that the instruction

White was challenging “was part of the standard jury instruction

on the justifiable use of deadly force” and that under Florida law,

“standard instructions are presumed to be correct.” Doc. 16 at 22.

The court concluded that trial counsel did not provide deficient

performance by failing “to object to a standard instruction that had

not been invalidated by the Florida Supreme Court.” Id.

For similar reasons, the court concluded that White was not

entitled to relief on his ineffective assistance of appellate counsel

claim. The court concluded that (1) the Florida appellate court’s

decision denying White’s habeas petition raising this claim was en-

titled to deference and (2) the claim failed even under de novo re-

view because appellate counsel’s performance was not deficient.

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16 Opinion of the Court 24-10739

Although the district court denied White’s habeas petition,

it granted him a certificate of appealability on the ineffective assis-

tance of trial counsel claim. This appeal followed.

II.

We review de novo a district court’s denial of a petition for a

writ of habeas corpus. Morrow v. Warden, Ga. Diagnostic Prison,

886 F.3d 1138, 1146 (11th Cir. 2018).

The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA) governs our review of federal habeas petitions. See

28 U.S.C. § 2254(d). “AEDPA prescribes a highly deferential frame-

work for evaluating issues previously decided in state court.”

Sears v. Warden GDCP, 73 F.4th 1269, 1279 (11th Cir. 2023). Under

AEDPA, a federal court may not grant habeas relief on a claim that

was “adjudicated on the merits in [s]tate court” unless the state

court’s decision was (1) “contrary to, or involved an unreasonable

application of, clearly established [f]ederal law, as determined by

the Supreme Court of the United States,” or (2) “based on an un-

reasonable determination of the facts in light of the evidence pre-

sented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d).

A state court decision is “contrary to” clearly established law

if the court “applie[d] a rule that contradicts the governing law” set

forth by the United States Supreme Court or the state court con-

fronted facts that were “materially indistinguishable” from United

States Supreme Court precedent but arrived at a different result.

Williams v. Taylor, 529 U.S. 362, 405–06 (2000). To meet the unrea-

sonable-application-of-law standard, “a prisoner must show far

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more than that the state court’s decision was merely wrong or even

clear error.” Shinn v. Kayer, 592 U.S. 111, 118 (2020) (internal quo-

tation marks omitted). The decision must be “so obviously wrong

that its error lies ‘beyond any possibility for fairminded disagree-

ment.’” Id. (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

This standard is “difficult to meet and . . . demands that state-court

decisions be given the benefit of the doubt.” Raulerson v. Warden,

928 F.3d 987, 996 (11th Cir. 2019) (quoting Cullen v. Pinholster,

563 U.S. 170, 181 (2011)).

We also must defer to a state court’s determination of facts

unless its decision “was based on an unreasonable determination of

the facts in light of the evidence presented in the [s]tate court pro-

ceeding.” 28 U.S.C. § 2254(d)(2). “We may not characterize . . .

state-court factual determinations as unreasonable ‘merely because

we would have reached a different conclusion in the first in-

stance.’” Brumfield v. Cain, 576 U.S. 305, 313–14 (2015) (alteration

adopted) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). We pre-

sume that a state court’s factual determinations are correct, absent

clear and convincing evidence to the contrary. See Pye v. Warden,

Ga. Diagnostic Prison, 50 F.4th 1025, 1035 (11th Cir. 2022) (en banc).

On each claimed basis for relief, we review “the last state-

court adjudication on the merits.” Greene v. Fisher, 565 U.S. 34, 40

(2011). If the last state court to render a decision did so without

opinion, we must “look through” it to the last related state court

decision that provided reasoning and presume that the higher state

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court implicitly adopted it. Wilson v. Sellers, 584 U.S. 122, 125

(2018).

III.

The United States Constitution provides that “[i]n all crimi-

nal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI. The

right to counsel includes the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 686 (1984). To establish inef-

fective assistance of counsel, a petitioner must demonstrate that

(1) counsel’s performance was deficient and (2) he was prejudiced

by the deficient performance. Id. at 687. A court deciding an inef-

fective assistance claim need not “address both components of the

inquiry if the [petitioner] makes an insufficient showing on one.”

Id. at 697.

White asserts that he received ineffective assistance of coun-

sel at trial when his counsel failed to challenge the jury instruction

stating that a person was not justified in using deadly force if he

was engaged in illegal conduct at the time he used deadly force. As

a refresher, the court instructed the jury that a person was author-

ized to use deadly force only if he “was not engaged in an unlawful

activity and was attacked in any place where he had a right to be.”

Doc. 12-22 at 12–13. White argues that his counsel performed defi-

ciently in failing to challenge this portion of the instruction because

under the version of Florida’s Stand Your Ground law in effect at

the time of offense, a person could use deadly force if he “reasona-

bly believe[d] that such force [was] necessary to prevent imminent

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death or great bodily harm to himself.” Fla. Stat. § 776.012(1)

(2006). As Florida courts have recognized, this version of § 776.012

permitted the use of deadly force even if the person who used

deadly force also was committing a crime such as trespassing on

someone else’s land. See Eady v. State, 229 So. 3d 434, 437 (Fla. Dist.

Ct. App. 2017) (recognizing that this version of § 776.012 did not

bar the use of deadly force simply because a person was engaged in

an unlawful activity). Florida courts have also recognized that the

later version of the Stand Your Ground law—that barred a person

committing an unlawful activity from using deadly force—applies

only to “conduct [that] occurred after the legislature’s 2014 amend-

ment” went into effect. Id. at 438. White says that his trial counsel

was ineffective in failing to challenge the court’s jury instruction

because it applied the wrong version of Florida’s Stand Your

Ground law.

Here, we need not decide whether the state court decision

rejecting this ineffective assistance claim is entitled to deference be-

cause even if this claim was “eligible for de novo review, it would

still fail.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); see Reese v.

Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1291 (11th Cir. 2012) (ex-

plaining that, even when it is clear that AEDPA deference applies,

we may affirm the denial of federal habeas relief based on de novo

review). White’s claim fails under de novo review because he failed

to establish prejudice.

To establish prejudice, a petitioner “must show that there is

a reasonable probability that, but for counsel’s unprofessional

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errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. That is, “the question is whether there

is a reasonable probability that, absent the errors, the factfinder

would have had a reasonable doubt respecting guilt.” Id. at 695. A

reasonable probability is one “sufficient to undermine confidence

in the outcome.” Id. at 694. “It is not enough to show that the errors

had some conceivable effect on the outcome of the proceeding.”

Richter, 562 U.S. at 104 (internal quotation marks omitted). Instead,

“[c]ounsel’s errors must be so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.” Id. (internal quotation

marks omitted omitted).

We assume for purposes of our prejudice analysis that if

White’s counsel had objected to the jury instruction, the state trial

court would have removed the portion of the instruction stating

that a person who is engaged in unlawful activity is not authorized

to use deadly force. It is true that without this instruction, the jury

could not have found that White’s use of force was unjustified

based on the fact that at the time of the shooting he was commit-

ting an armed trespass onto his neighbor’s property. See Fla. Stat.

§ 810.09 (making it a felony to trespass onto another’s property

while “armed with a firearm”). Even so, White cannot show a rea-

sonable probability that the jury would have found that Drew’s

death resulted from the justifiable use of force.

After all, the jury still would have been instructed that the

use of deadly force was not justified if White used force after Drew

withdrew from the physical contact and clearly indicated that he

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24-10739 Opinion of the Court 21

wanted to withdraw and stop the use of force. The evidence here

showed that once White drew his weapon, Drew ceased physical

contact and clearly indicated that he wanted to withdraw and stop

the use of force by running away from White. Despite Drew’s

withdrawal, White chased Drew approximately 175 feet until

Drew came to a neighbor’s fence. When Drew slowed down to

cross the fence, White shot him multiple times at an extremely

close range, including once in the back of the head.

White says that this analysis is flawed because when Drew

was at the fence, he stopped fleeing and engaged again in physical

combat with White. White did, in fact, offer this testimony. But his

account of the events widely diverges from the other eyewitnesses,

who did not report seeing Drew re-engage with White. And even

assuming that White is correct that Drew’s body was turned to the

side when the shooting began, White’s own expert admitted that

Drew’s body could have been turned because he was climbing over

the neighbor’s fence, not because he was beginning to attack again.

After reviewing the entire record, we cannot say that there is a rea-

sonable probability that the jury’s verdict would have been differ-

ent if White’s trial counsel had objected to the jury instruction ad-

dressing unlawful activities. 3 Accordingly, the district court did not

err in denying White’s habeas petition.

3 In his appellate brief, White also argues that the district court erred in deny-

ing his ineffective assistance of appellate counsel claim related to the same jury

instruction. But a petitioner has a limited right to appeal from the denial of a

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22 Opinion of the Court 24-10739

AFFIRMED.

habeas corpus petition and must obtain a certificate of appealability by making

a “substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c). The certificate of appealability identifies the issues that

justify appellate review to ensure that “[t]he decision about which issues are

to be considered . . . [is] made on the front end of an appeal, before the issues

are briefed.” Hodges v. Att’y Gen., State of Fla., 506 F.3d 1337, 1340 (11th Cir.

2007).

In his appellate brief, White raises the issue whether the district court erred in

denying his ineffective assistance of appellate counsel claim. But we cannot

consider this issue because the district court did not grant him a certificate of

appealability on it, and he never filed a motion in our Court to expand the

certificate of appealability. See Raleigh v. Sec’y, Fla. Dep’t of Corr., 827 F.3d 938,

963 (11th Cir. 2016) (recognizing that as a general matter we are limited to

review on appeal only those issues for which the prisoner received a certificate

of appealability).

White suggests in his appellate briefing that we should expand the certificate

of appealability to cover the ineffective assistance of appellate counsel claim.

But a petitioner granted a certificate of appealability on one issue may not

“simply brief other issues as he desires in an attempt to force both the Court

and his opponent to address them.” Dell v. United States, 710 F.3d 1267, 1272

(11th Cir. 2013); see Tompkins v. Moore, 193 F.3d 1327, 1332 (11th Cir. 1999)

(explaining that a motion to expand a certificate of appealability “must be filed

promptly, well before the opening brief is due” and that “[a]rguments in a brief

addressing issues not covered in the certificate . . . will not be considered as a

timely application for expansion of the certificate; those issues simply will not

be reviewed”). It is true that in an “extraordinary case” a merits panel may

expand a certificate of appealability. But we are not persuaded that this appeal

presents an extraordinary case. See, e.g., Dell, 710 F.3d at 1272–73 (concluding

that extraordinary case exception applied in case where prisoner initially pro-

ceeded pro se on appeal but this Court later appointed counsel and directed

appointed counsel to submit a brief addressing expanding the certificate of ap-

pealability).