The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUL 13, 2006
No. 05-14847 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60989-CV-DLG
MARK HARRIS,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF
CORRECTIONS, James McDonough,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 13, 2006)
Before ANDERSON, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Mark Harris, a state prisoner proceeding pro se, appeals the district court’s
denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Harris argues
that he received ineffective assistance of counsel, in violation of his Sixth
Amendment rights, because his trial counsel mistakenly told him that voluntary
intoxication was not a possible defense to his first-degree murder charge for the
November, 1998 killing of his long-time girlfriend. Harris argues that counsel’s
failure to pursue this defense could not have been a tactical decision because
counsel misinformed him of the applicable law. Harris also argues that the alleged
deficiency prejudiced him because, had the jury been informed that he was
voluntarily intoxicated, it would either have acquitted him or convicted him of the
lesser offense of manslaughter.
In March 2003, Harris filed a motion for post-conviction relief in Florida
state court. The Florida trial court denied his motion and the Fourth District Court
of Appeals affirmed. Harris then filed his petition for writ of habeas corpus with
the federal district court. Under 28 U.S.C. § 2254(d), a federal court may not grant
habeas relief on claims that were previously adjudicated in state court, unless the
adjudication “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law . . . or resulted in a
decision based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” A state court’s summary,
unexplained rejection of a constitutional issue qualifies as an adjudication that is
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entitled to deference. Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1254
(11th Cir. 2002). The state court only is required to reject a claim on the merits,
not to provide an explanation for § 2254(d)(1) to apply. Id. at 1255. A state court
decision that does not rest on procedural grounds alone is an adjudication on the
merits, regardless of the form in which it is expressed. Id. at 1255-56.
To demonstrate ineffective assistance of counsel, a prisoner first “must
show that counsel’s performance was [constitutionally] deficient” (“performance
prong”). Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80
L.Ed.2d 674 (1984). Second, the prisoner must establish that the deficient
performance prejudiced the defense (“prejudice prong”). Id. “[T]here is no reason
for a court deciding an ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the inquiry if the defendant
makes an insufficient showing on one.” Id. at 697, 104 S.Ct. at 2069.
To prove the deficient performance prong of the Strickland test, the prisoner
must show that counsel made errors so serious that he or she was not functioning
as the counsel guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064.
The proper measure of attorney performance is reasonableness under prevailing
professional norms. Id. at 688, 104 S.Ct. at 2065. The guiding principle is
“whether counsel’s conduct so undermined the proper functioning of the
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adversarial process that the trial cannot be relied on as having produced a just
result.” Id. at 686, 104 S.Ct. at 2064. Judicial scrutiny of counsel’s performance
must be highly deferential, and there is a strong presumption that counsel’s
conduct fell within the range of reasonable professional assistance. Id. at 689, 104
S.Ct. at 2065.
To prove prejudice, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. A
reasonable probability is one sufficient to undermine confidence in the outcome.
Id. “It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S.Ct. at
2067.
A petitioner raising an ineffective assistance of counsel claim must satisfy a
heavy burden of proof in order to prevail. “Given the strong presumption in favor
of competence, the petitioner’s burden of persuasion—though the presumption is
not insurmountable—is a heavy one.” Chandler v. United States, 218 F.3d 1305,
1314 (11th Cir. 2000) (en banc); see also Rogers v. Zant, 13 F.3d 384, 386 (11th
Cir. 1994) (noting that “the cases in which habeas petitioners can properly prevail
on the ground of ineffective assistance of counsel are few and far between”). “The
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test has nothing to do with what the best lawyers would have done. Nor is the test
even what most good lawyers would have done. We ask only whether some
reasonable lawyer at the trial could have acted, in the circumstances, as defense
counsel acted at trial.” White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992).
In Florida, before October 1, 1999, voluntary intoxication was a recognized
defense to specific intent crimes such as first-degree murder. Effective as of
October 1, 1999, voluntary intoxication has been eliminated as a defense in
Florida. See Fla. Stat. § 775 .051 (1999). The defense was not a complete defense,
however, but available to negate specific intent. Gardner v. State, 480 So.2d 91, 92
(Fla. 1985); Chestnut v. State, 538 So. 2d 820, 822 (Fla. 1989). Thus, the defense
of voluntary intoxication was available only to reduce the charged offense to a
lesser-included offense. Voluntary intoxication was not an available defense for
general intent crimes, including second-degree murder or manslaughter. Wilson v.
State, 871 So. 2d 298, 301 (Fla. 1st Dist. Ct. App. 2004).
Although Harris contends that his counsel should have correctly instructed
him as to the voluntary-intoxication defense, these allegations are not enough to
overcome the heavy burden of proof required to show ineffective assistance. See
Chandler, 218 F.3d at 1314. Harris offers no explanation as to why his trial
counsel should have pursued the voluntary-intoxication defense. The evidence
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presented at trial and at the suppression hearing demonstrated that Harris was not
intoxicated or under the influence at the time he committed the offense. Therefore,
any argument that counsel would have made regarding voluntary intoxication
would have been inconsistent with the evidence. See, e.g., White, 972 F.2d at
1221 (holding that defense counsel’s failure to present voluntary intoxication as a
defense in a capital-murder prosecution was not beyond the range of reasonable
professional judgment and, thus, did not amount to ineffective assistance, in view
of inconsistency of intoxication defense with deliberateness of the defendant’s
actions during the shootings). Because Harris has not produced any evidence to
rebut the presumption of competence, he has not shown that his counsel was
ineffective. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Moreover, Harris’s claim also fails because there was no prejudice. The
voluntary-intoxication defense was not a complete defense, but available only to
negate specific intent and reduce the charged offense to a lesser-included offense.
Harris was found guilty of only the lesser-included offense of second-degree
murder, which is a general-intent crime to which voluntary intoxication was not a
defense. See Wilson, 871 So. 2d at 301. In other words, a voluntary intoxication
defense could not have assisted Harris on the second-degree murder charge. Since
Harris was convicted of only the lesser-included offense, due at least in part to the
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efforts of defense counsel, he suffered no prejudice. Accordingly, the district court
was correct that the state court’s decision was not contrary to, nor involved an
unreasonable application of, clearly established Federal law, and, thus, the district
court did not err in denying Harris’s § 2254 petition for writ of habeas corpus. See
28 U.S.C. § 2254(d). Therefore, we affirm the district court.
Upon a review of the record and upon consideration of the parties’ briefs, we
discern no reversible error.
AFFIRMED.
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