Ricardo Vega v. Secretary, Department of Corrections

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-14778

________________________

D.C. Docket No. 6:15-cv-00321-PGB-GJK

RICARDO VEGA,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(September 28, 2021)

Before MARTIN, LUCK, and BRASHER, Circuit Judges.

LUCK, Circuit Judge:

Ricardo Vega robbed an Orlando area Mexican restaurant with a ball bearing

(“BB”) gun. A Florida jury convicted Vega of robbery with a deadly weapon. After

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his conviction was affirmed on direct appeal, Vega claimed that his trial counsel was

constitutionally ineffective for failing to move for a judgment of acquittal because,

under the Florida courts’ interpretation of the robbery statute, the state did not prove

that the BB gun Vega used to rob the restaurant was a deadly weapon. The state

habeas court denied Vega’s ineffective assistance of counsel claim because the

evidence was sufficient to find that the BB gun was a deadly weapon, and thus, trial

counsel could not have been ineffective under Strickland v. Washington, 466 U.S.

668 (1984) for failing to move for a judgment of acquittal on that basis. The district

court concluded that the state habeas court’s determination that trial counsel was not

ineffective was not contrary to, and was not an unreasonable application of,

Strickland. After appointing counsel, reviewing the state court record and the briefs,

and hearing oral argument, we agree and affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The robbery and Vega’s arrest

On the evening of September 27, 2005, law enforcement officers were

watching Jalapeno’s Restaurant in Orange County, Florida because it had been

robbed the week before. While the officers were watching, Detective Brisinte saw

a Hispanic man put on a black ski mask, pull out a handgun from his waistband, and

enter the restaurant. The Hispanic man came out of the restaurant a short time later,

took off his mask, and ran behind the building. There, he ran into Detective Fink.

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But Det. Fink wasn’t able to arrest the Hispanic man because he ran away into the

nearby woods. Det. Brisinte ran after the Hispanic man but couldn’t find him.

One of the victims inside Jalapeno’s called 9-1-1. The victim told the 9-1-1

operator that someone wearing a black ski mask pointed a semi-automatic handgun

at her and demanded money. In fear for her life, the victim gave the masked man

$200 from the cash register.

A few days later, Detective Funk helped with the investigation of an armed

home invasion robbery in Orange County. Law enforcement officers arrested

Ricardo Vega for using a black BB gun, which looked like a semi-automatic

handgun, in the home invasion. Det. Funk sent Vega’s picture to Det. Brisinte and

Det. Fink. Det. Brisinte and Det. Fink were one-hundred-percent sure that Vega was

the Hispanic man that they tried to arrest for the Jalapeno’s robbery.

The trial

Vega was charged with robbery with a deadly weapon.1 The information

alleged that Vega “by force, violence, assault or putting in fear,” took money from

Azucena Zoriano “with the intent to temporarily or permanently deprive” her of the

1

Vega was also charged with aggravated assault with a deadly weapon and resisting arrest

without violence, but those charges are not relevant to this appeal. The state dismissed the

aggravated assault charge, the jury found Vega guilty of resisting arrest without violence, and he

was sentenced 364 days in the county jail, which was less than the time he had already served.

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“right to the property . . . and in the course of committing said robbery,” Vega carried

“a deadly weapon, to-wit: a BB gun or handgun.”

At trial, the victim, Ms. Zoriano, testified that she was working at Jalapeno’s

on September 27, 2005—the night of the robbery. She headed over to one of the

tables when a man with a mask entered the restaurant with a real-looking gun in his

hand. The masked man pointed the gun at Ms. Zoriano and told her to “give me the

money.” Afraid that he was going to shoot her, Ms. Zoriano went to the cash

register, took out the money, and put it in a bag that the masked man had placed on

the counter. While he was waiting for Ms. Zoriano to put the cash register money

in the bag, the masked man demanded money from a customer standing by the

register. But the customer said he didn’t have any money, so the masked man took

the bag with the cash register money and headed for the back of the restaurant.

Ms. Zoriano couldn’t identify the robber because of his mask.

Det. Brisinte testified that he was in the Jalapeno’s parking lot on the night of

September 27, 2005. Det. Brisinte saw a Hispanic man pace back and forth in front

of the restaurant and look inside “several times.” Then, the Hispanic man went to

the front door, pulled down his hat into a ski mask with holes, took out what appeared

to be a firearm, and pointed it at the folks inside the restaurant. Det. Brisinte saw

the people inside the restaurant dive for cover. The masked man then went to the

cash register and pointed the gun at Ms. Zoriano. The masked man took “what

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appeared to be money” and then walked out the front door. He put the gun in a bag,

lifted the ski mask so it looked like a hat, and walked away towards the back of the

restaurant. Det. Brisinte identified Vega as the masked man. Det. Fink, who was

also with Det. Brisinte in the parking lot, approached Vega but Vega ran into a

nearby wooded area. Det. Brisinte went into the woods but he didn’t find Vega.

Det. Fink testified that he was behind the restaurant during the robbery. He

was wearing a “smock” that said “sheriff” in large white letters across the front.

When the robber left the restaurant and walked behind the store, Det. Fink

confronted him with his department-issued shotgun and yelled “police, stop.” The

robber—holding the money bag—kept walking and then ran to the wooded area

behind the restaurant. Det. Fink identified Vega as the man he confronted behind

the restaurant after the robbery.

A week or so after the robbery, Det. Fink interviewed Vega. When Det. Fink

walked into the interview room, Vega was nervous and wouldn’t look at him.

Det. Fink asked if Vega remembered him because he had a shotgun in Vega’s face

on the night of the robbery. Vega said, “I don’t know, I’m on drugs, I was on drugs,

I don’t remember.” When Det. Fink asked again if Vega remembered him, Vega

jumped up and screamed for a correctional officer to “come and take him out of” the

interview room.

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After the state rested, Vega’s trial counsel moved for a judgment of acquittal.

He argued that the evidence was insufficient because only one witness, Det. Brisinte,

identified Vega as the robber. The other witnesses either didn’t see the robbery or

couldn’t identify Vega because the robber was wearing a mask. The state trial court

denied the judgment of acquittal motion because Det. Brisinte saw Vega rob

Jalapeno’s and it was for the jury to determine his credibility. As to “each one of

the elements” of robbery with a deadly weapon, the state trial court said, “there is

something that has been said about them that the jury may interpret in the light most

favorable to the state.”

At the end of the state’s rebuttal case, Vega’s trial counsel renewed his

judgment of acquittal motion. The state trial court denied the renewed motion

because there was evidence that, if the jury believed it, would support a conviction

for robbery with a deadly weapon.

The jury found Vega guilty of robbery with a deadly weapon as charged in

the information. The state trial court sentenced Vega to life imprisonment. The state

appellate court affirmed Vega’s conviction and sentence.

Postconviction motion

Vega moved for postconviction relief under Florida Rule of Criminal

Procedure 3.850. Vega claimed that his trial counsel “was ineffective in failing to

[move] for judgment of acquittal as to the robbery verdict, when the [s]tate failed to

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introduce at trial the BB gun alleged by the charging information.” 2 The state, Vega

argued, “offered no proof to show that the BB gun is a deadly weapon” and “Florida

law does not provide that a BB gun is a deadly weapon.” If a “BB pistol is not

introduced at trial,” Vega continued, “where it may be inspected and tested by the

jury a conviction for robbery with a deadly weapon will not be sustained.” His trial

counsel, Vega said, “should have moved for judgment of acquittal in this matter as

reasonable jurists would conclude that a BB gun is not a deadly weapon.” “[T]here

stands a reasonable probability that had counsel moved for a judgment of acquittal

as to the robbery verdict based on the foregoing the motion would have been granted,

or if denied, the issue preserved for appellate review supported by substantial case

law that would warrant reversal.”

The state habeas court denied Vega’s claim that his trial counsel was

ineffective for failing to move for a judgment of acquittal because the state offered

no proof that the BB gun was a deadly weapon and the BB gun was not introduced

at trial and could not be inspected by the jury. The state habeas court found that

Vega was charged with using a BB gun to commit the Jalapeno’s robbery, rather

2

Vega also claimed that his trial counsel was ineffective for: delaying the case; not

investigating alibi witnesses; not investigating fingerprint and video evidence; not investigating

eyewitnesses; not objecting to the state’s leading questions and finger pointing; failing to move for

a mistrial after improper questioning; and failing to object to improper closing argument. But

these postconviction claims were denied by the state habeas court and they are not at issue in this

appeal.

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than a firearm, because “he was caught with a BB gun ‘replica’ of a semiautomatic

pistol when committing a home invasion robbery three days later.”

As to Vega’s claim that his trial counsel should have moved for a judgment

of acquittal because the state offered no proof to show that the BB gun was a deadly

weapon, the state habeas court found that “[t]he testimony at trial was sufficient to

convict of robbery with a deadly weapon.” The state habeas court pointed to

Ms. Zoriano’s testimony, “[w]hen asked if the gun appeared real,” that, “I believe it

was, yes.” And the state habeas court relied on Det. Brisinte’s testimony that he was

familiar with firearms and the gun Vega used during the robbery “appeared to be a

firearm”—“a regular gun that shoots bullets.”

As to Vega’s claim that trial counsel was ineffective because a judgment of

acquittal motion should be granted where the state does not introduce the BB gun

for the jury to inspect and test, the state habeas court found that “[t]here is no

requirement that a firearm or deadly weapon be introduced into evidence before

convicting of robbery with a firearm or deadly weapon.” The state appellate court

affirmed the denial of Vega’s ineffective assistance of counsel claim.

After the denial of his postconviction motion, Vega petitioned the federal

district court for a writ of habeas corpus under 28 U.S.C. section 2254. Like he did

in his state postconviction motion, Vega claimed that his trial counsel was

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ineffective for “fail[ing] to move for judgment of acquittal based on the [s]tate’s

failure to introduce [the] BB pistol into evidence.”

Vega alleged that he was arrested a few days after the Jalapeno’s robbery “for

a non-related home invasion robbery” and “a BB pistol was recovered as evidence.”

The state, Vega said, charged him with the Jalapeno’s robbery “based on the premise

[that] the recovered BB gun had been used in the robbery, and it qualified as a deadly

weapon.” Vega conceded that “[u]nder Florida law, a BB gun can, in some

circumstances, be a deadly weapon” if it “is likely to produce death or great bodily

harm.” “[T]he determination of the deadliness of the BB gun is a factual issue” and

“this determination by the jury must be made after” it has “had the opportunity to

view the weapon first hand.” At Vega’s trial, “[t]he [s]tate showed the jury pictures

of the recovered BB gun, but did not provide them the opportunity to view or

examine the BB pistol itself.” “The jury,” Vega argued, “made a factual

determination [that] the BB gun was a deadly weapon without competent substantial

evidence based on their first hand viewing of the weapon.”

Vega contended that his trial counsel “should have moved for a judgment of

acquittal (JOA) on the charge of robbery with a firearm or deadly weapon at the

conclusion of the [s]tate’s case-in-chief, and prior to the jury entering deliberations,”

because “the [s]tate[] fail[ed] to produce the BB gun as evidence and allow the jury

to determine if the BB pistol was a deadly weapon.” Trial counsel’s failure to move

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for a judgment of acquittal on this ground was “deficient” and “prejudiced” Vega

because he would have been found guilty only of robbery with a weapon, which is

“a less onerous crime” with a maximum sentence of thirty years rather than life.

The district court concluded that the state habeas court’s denial of Vega’s

ineffective assistance of counsel “claim was not contrary to, or an unreasonable

application of, Strickland” because the district court could not “say that counsel’s

actions amount[ed] to deficient performance or that but for counsel’s actions, the

result of the proceeding would have been different.” Vega, the district court

continued, had “not demonstrated that a motion for a judgment of acquittal would

have been granted.”

The district court explained that Vega had not shown that a judgment of

acquittal motion would have been granted because, under Florida law, a “jury can

conclude that a weapon is either dangerous or deadly if it is implied by the

defendant’s words or actions.” “Florida law does not require the introduction of the

weapon into evidence.”

In Vega’s case, the district court said, Vega’s words and actions showed that

the BB gun was dangerous or deadly, even though it was not introduced into

evidence. Ms. Zoriano testified that Vega pointed what looked like a real gun at her

and demanded money. Det. Brisinte also testified that Vega pointed his gun at the

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people inside the restaurant. He was familiar with firearms and, to him, Vega’s gun

“appeared to be regular gun that shot bullets.”

The district court concluded that “[t]his testimony was sufficient to submit the

issue to the jury.” “Florida law allows for a case to be submitted to the jury in these

circumstances,” the district court explained, because “the testimony indicated that

the defendant implied that the weapon was deadly or dangerous and that he would

use it against the victim.”

The district court found that Vega was not entitled to a certificate of

appealability because he had not made a substantial showing that he had been denied

a federal constitutional right. We granted a certificate of appealability to address

“[w]hether the district court erred in denying Vega’s claim that his counsel was

ineffective for failing to move for a judgment of acquittal because the weapon used

during the robbery was a BB gun.”

STANDARD OF REVIEW

Vega’s habeas petition is governed by the Antiterrorism and Effective Death

Penalty Act of 1996. See Mendoza v. Sec’y, Fla. Dep’t of Corr., 761 F.3d 1213,

1234 (11th Cir. 2014). Because “state courts are adequate forums for the vindication

of federal rights,” the Act “ensure[s] that federal habeas relief functions as a guard

against extreme malfunctions in the state criminal justice system[], and not as a

means of error correction.” Id. (citations omitted).

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The Act allows a federal court to grant habeas relief only where the state

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

application of, clearly established Federal law, as determined by the Supreme Court

of the United States,” or (2) “based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.”3 28 U.S.C. § 2254(d).

“An unreasonable application of clearly established federal law occurs when the

state court correctly identifies the governing legal principle but unreasonably applies

it to the facts of the particular case.” Terrell v. GDCP Warden, 744 F.3d 1255, 1261

(11th Cir. 2014) (internal quotation marks omitted) (alterations adopted). “[A]n

unreasonable application of federal law is different from an incorrect application of

federal law.” Williams v. Taylor, 529 U.S. 362, 410 (2000). “[T]he ruling must be

objectively unreasonable, not merely wrong; even clear error will not suffice.”

Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (internal quotations omitted).

“Therefore, we must deny federal habeas relief as long as some fairminded jurists

could agree with the state court’s decision, although others might disagree.” Terrell,

744 F.3d at 1261 (internal quotation marks omitted).

3

We evaluate “the highest state-court decision that evaluated the claim on the merits.”

Marshall v. Sec’y, Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016) (internal quotation

marks omitted). Because the state appellate court here affirmed without an opinion, we “look

through” it to the rationale of the postconviction court, presume the appellate court adopted its

reasoning, and evaluate that decision. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

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Where a convicted defendant claims ineffective assistance of counsel, the

relevant clearly established federal law is Strickland. See Marshall, 828 F.3d at

1285. Under Strickland’s two-pronged test, the defendant must show both that:

(1) “counsel’s performance was deficient” and (2) “the deficient performance

prejudiced the defense.” 466 U.S. at 687. A conviction will be reversed only where

there has been “so serious” an error by counsel that it resulted in “a breakdown in

the adversary process that renders the result unreliable.” Id.

“Where the highly deferential standards mandated by Strickland and [the Act]

both apply, they combine to produce a doubly deferential form of review that asks

only whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Terrell, 744 F.3d at 1262 (quotation marks omitted). “The

question is not whether a federal court believes the state court’s determination under

the Strickland standard was incorrect but whether that determination was

unreasonable—a substantially higher threshold.” Mendoza, 761 F.3d at 1236

(quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). “If there is any

reasonable argument that counsel satisfied Strickland’s deferential standard, then a

federal court may not disturb a state court decision denying the claim.” Id.

(quotation omitted).

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DISCUSSION

Vega contends that the state habeas court unreasonably applied Strickland’s

performance prong by finding that his trial counsel was not ineffective for failing to

move for a judgment of acquittal based on the state’s failure to present competent

substantial evidence under Florida law that the BB gun was a deadly weapon. The

state habeas court, Vega argues, “ruled based on two statements that the victim and

law enforcement officer thought the gun was real, with no evidence about the [BB]

gun’s likelihood to produce any harm at all, and without the gun even coming into

evidence despite being in the custody of the prosecution.” “This,” Vega says, “was

patently unreasonable based on then existing Florida law.”

Vega’s “argument that the state court unreasonably applied Strickland

obviously depends upon our determining [trial counsel’s] performance was

deficient, but first we would have to conclude the state court misinterpreted state

law, i.e.”—what, under Florida law, is competent substantial evidence to show that

a BB gun is a deadly weapon as that term is used in the robbery statute. See Callahan

v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005). This is because, under Florida

law, a conviction is legally sufficient and survives a motion for a judgment of

acquittal where it is “supported by competent, substantial evidence.” Johnson v.

State, 238 So. 3d 726, 739 (Fla. 2018). “Deadly weapon” is not defined in the

robbery statute. See Mitchell v. State, 698 So. 2d 555 (Fla. Dist. Ct. App.), approved,

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703 So. 2d 1062 (Fla. 1997) (“The robbery statute does not define” “weapon,”

“deadly weapon,” or “firearm.”). Instead, it has been defined by the Florida courts.

See Dale v. State, 703 So. 2d 1045, 1047 (Fla. 1997) (Dale II) (quoting the definition

of “deadly weapon” from caselaw).

“[A]lthough ‘the issue of ineffective assistance—even when based on the

failure of counsel to raise a state law claim—is one of constitutional dimension,’ we

‘must defer to the state’s construction of its own law’ when the validity of the claim

that [trial] counsel failed to raise turns on state law.” Pickney v. Sec’y, DOC, 876

F.3d 1290, 1295 (11th Cir. 2017) (citation omitted). Where the Florida courts

“already ha[ve] told us how the issues would have been resolved under Florida state

law had [trial counsel] done what [Vega] argues he should have done,” “federal

habeas courts should not second-guess them on such matters.” Herring v. Sec’y,

Dep’t of Corrs., 397 F.3d 1338, 1354–55 (11th Cir. 2005) (quotation omitted).

Vega’s ineffective assistance of counsel claim turns on a question of Florida

law: the special state-court created rules for proving that a BB gun is a deadly

weapon under the robbery statute. As Vega explains, the state habeas court

“concluded under Florida law that the statements made by the lay robbery victim

[Ms. Zoriano] and the law enforcement witness [Det. Brisinte] that they thought the

replica [BB] gun looked like a real gun was competent and substantial enough to

show that the gun was likely to cause death or great bodily harm.” The state

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appellate court affirmed the state habeas court’s conclusion. Having concluded that

Ms. Zoriano and Det. Brisinte’s testimony was sufficient under state law to show

that the BB gun was a deadly weapon, we should not second-guess state courts on

determinations of state law.

Vega essentially argues, by citing other Florida cases, that the state habeas

court misinterpreted Florida law and trial counsel was ineffective based on a correct

reading of state law. The petitioner in Pickney made the same argument. 876 F.3d

at 1299 ([“Petitioner] says, in effect, that the state appellate court was wrong not to

recognize the error as fundamental.”). But we said the petitioner’s argument

“fail[ed]” because the issue was one “of state law, and state law is what the state

courts say it is. . . . [I]t is not a federal court’s role to examine the propriety of a

state court’s determine of state law.” Id.; see also Callahan, 427 F.3d at 931–32

(rejecting the argument that a “state court misinterpreted state law” and deferring to

an Alabama court’s interpretation of a state-court created double jeopardy rule).

Here, too, Vega’s argument that the state habeas court unreasonably applied

Florida law fails. The state habeas court and state appellate court have told us that

Ms. Zoriano and Det. Brisinte’s testimony was sufficient under state law for the jury

to find that the BB gun was a deadly weapon. Just as in Pickney, it is not our role to

examine the propriety of their determination of state law.

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Put another way, under the federal habeas statute, 28 U.S.C. section

2254(d)(1), our review is limited to determining whether the state courts reached a

result contrary to or involving an unreasonable application of clearly established

federal law. See 28 U.S.C. § 2254(d)(1) (“An application for a writ of habeas corpus

on behalf of a person in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim . . . resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States . . . .”). The state

habeas court’s decision that Vega’s trial counsel was not ineffective—because the

evidence at trial was sufficient for the jury to find that the BB gun was a deadly

weapon—rests on its interpretation of Florida law. It does not conflict with or

unreasonably apply any federal law.

But even if we could review the state habeas court’s determination that trial

counsel was not ineffective because the evidence was sufficient under Florida law

to prove that the BB gun was a deadly weapon, applying Strickland and AEDPA

double deference, Vega has failed to show that no fairminded jurist could agree with

the state habeas court’s conclusion. At the time of Vega’s trial, the state appellate

courts had found similar evidence in BB gun cases to be sufficient proof of robbery

with a deadly weapon.

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For example, in Mitchell, the defendant, “while armed with a BB pistol that

appeared to be a firearm . . . went to the home of his estranged wife,” but “[a]nother

man was at the house.” 698 So. 2d at 557. The defendant “entered the house without

permission. He pulled the BB pistol from his jacket and threatened to kill both his

wife and her friend. He took money from his wife and attempted to take money from

the man.” Id.

The defendant was charged with, and convicted of, robbery with a deadly

weapon. Id. Reviewing the sufficiency of the evidence on appeal, the Mitchell court

set out two critical components of Florida law. First, whether a BB gun is a deadly

weapon tends to be a factual question for the jury. See id. at 560 (“Case law

considering the status of BB guns tends to make the deadliness or dangerousness of

a BB gun a factual question for the jury.”). And second, evidence is sufficient to

convict for armed robbery even if the jury doesn’t have the BB gun. See id. at 559

(“In this case, numerous witnesses testified that [the defendant] committed crimes

while carrying what they thought was a firearm. If [the defendant] had discarded his

gun between the events at the chiropractor’s office and his arrest at the mobile park,

such evidence may have been sufficient to support convictions involving firearms.”).

The jury doesn’t need the BB gun because its deadliness is assessed “from a

reasonable victim’s perceptive and not from the perspective of the defendant.” Id.

at 562. “[R]eliance upon a victim’s perspective,” the Mitchell court explained, “is a

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correct application of the law.” Id. Because the defendant’s “words and actions . . .

implied that the gun was loaded and operable,” and “[n]othing visible to any victim

in this case would lead any rational person to conclude that the BB gun was not a

loaded and operable, deadly or dangerous weapon,” the state appellate court

concluded that the evidence was sufficient. Id.

Importantly, for our purposes, the Mitchell court certified a question of great

public importance to the Florida Supreme Court: “If the state fails to prove that a

BB pistol is loaded and operable at the time of an offense, can it be classified as a

dangerous or deadly weapon when the defendant’s actions cause the victim to

reasonably believe that the BB pistol is loaded and operable?” Id. at 557. The

Florida Supreme Court “approve[d]” the Mitchell decision because “whether a BB

gun—loaded or unloaded—is a deadly weapon is a jury question.” Mitchell v. State,

703 So. 2d 1062, 1062 (Fla. 1997).

Also, in Dale v. State, 669 So. 2d 1112 (Fla. Dist. Ct. App. 1996), the

defendant had been convicted of robbery with a deadly weapon after robbing a

bakery with a BB gun. Id. at 1112–13. He argued on appeal “that under the facts of

the instant case the evidence was legally insufficient to establish that [his] use of a

BB gun met the statutory definition of a deadly weapon.” Id. at 1112. Relying on

an earlier decision, Gooch v. State, 652 So. 2d 1189 (Fla. Dist. Ct. App. 1995), the

state appellate court held that the “trial court correctly presented this issue to the

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jury” because “whether an air or gas operated gun is a deadly weapon depends on

the manner in which it is used, and whether it will be classified as a deadly weapon

is a question for the jury.” Dale, 669 So. 2d at 1113 (cleaned up). But the court

acknowledged “some confusion in the case law.” Id.

The Florida Supreme Court cleared up the confusion in its Dale II decision.

The Florida Supreme Court approved the state appellate court’s decision. Dale II,

703 So. 2d at 1046. “The issue,” the Court explained, “is whether the ‘deadliness’

of a BB gun is properly a jury question, or whether a BB gun is so innocuous that it

is always a non-deadly weapon as a matter of law.” Id. at 1047. The Florida

Supreme Court said that “pertinent caselaw” from the state appellate courts showed

that they “have overwhelmingly concluded that a BB or pellet gun can be a deadly

weapon, and that the issue of ‘deadliness’ is a jury question.” Id. The Court agreed

with the “overwhelming” authority from the lower courts and held “that whether a

BB or pellet gun is a deadly weapon—i.e., whether it is likely to produce death or

great bodily injury—is a factual question to be answered by the jury in each case.”

Id. (quotation omitted).

Based on Mitchell and Dale, fairminded jurists would conclude, as the state

habeas court did, that trial counsel was not ineffective for failing to move for a

judgment of acquittal because the evidence was sufficient to show that Vega’s BB

gun was a deadly weapon. The state habeas court, following Mitchell and Dale,

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focused on the manner in which Vega used the BB gun and his words and actions

during the robbery. The state habeas court cited Ms. Zoriano’s testimony that Vega

had a gun in his hands and pointed it at her. She testified that she was afraid that he

would shoot her. And that, because of her fear, she followed his orders and gave

him the money in the register. As in Mitchell, the state habeas court assessed “the

likelihood of injury from [Ms. Zoriano’s] perspective.” 698 So. 2d at 562. When

asked, “Did the gun appear real to you?,” Ms. Zoriano answered, “I believe it was,

yes.” Like the Mitchell victim, Vega’s victim believed that the gun was real.

The state habeas court also cited Det. Brisinte’s testimony. Det. Brisinte saw

the robbery from his car in the parking lot and testified that Vega “[p]roduced a

firearm, started pointing his gun at people. People went to the ground. He went to

the cash register, held the gun to the cash register, a person was at the cash

register . . . .” Vega’s gun also “appeared to be” a regular gun that, in Det. Brisinte’s

view, shot bullets.

“With both words and actions,” Vega “implied that the gun was loaded and

operable. Nothing visible to any victim in this case would lead any rational person

to conclude that the BB gun was not a loaded and operable, deadly or dangerous

weapon.” Id. To the Mitchell court, “this evidence [was] sufficient to support” the

robbery with a deadly weapon conviction. Id. And if the evidence was sufficient,

at the very least, there’s a reasonable argument that counsel satisfied Strickland’s

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deferential standard by not raising a judgment of acquittal motion that would have

been denied.

Vega argues that the evidence in Dale II, which the Florida Supreme Court

found to be sufficient, was stronger than the evidence in his case. There’s no doubt

that it was. But Dale did not, and could not, hold that the evidence in this case was

insufficient. Indeed, the Florida Supreme Court approved the state appellate court’s

decision that “whether an air or gas operated gun is a deadly weapon depends on the

manner in which it is used, and whether it will be classified as a deadly weapon is a

question for the jury.” Dale, 669 So. 2d at 1113. The Florida Supreme Court agreed

that “whether a BB or pellet gun is a deadly weapon—i.e., whether it is likely to

produce death or great bodily injury—is a factual question to be answered by the

jury in each case.” Dale II, 703 So. 2d at 1047 (cleaned up; emphasis added). Here,

the manner in which Vega used the gun—pointing it at the cashier and the restaurant

customers, demanding money, and taking the money—was sufficient to create a

reasonable belief in his victims that the gun was a real one that would likely cause

death or great bodily harm.

Vega also argues that the state appellate courts in Jones v. State, 869 So. 2d

1240 (Fla. Dist. Ct. App. 2004) and E.S. v. State, 886 So. 2d 311 (Fla. Dist. Ct. App.

2004) reversed robbery with deadly weapon convictions because the evidence was

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insufficient that the BB guns used in those robberies were deadly weapons. 4 But in

both cases the undisputed evidence was that the BB guns were not deadly weapons.

In Jones, “the only evidence of the BB gun’s capacity to inflict injury was the

[defendant]’s testimony that the gun ‘couldn’t hurt a fly.’” 869 So. 2d at 1242. And,

in E.S., “[t]he evidence showed that the gun had no cartridge in it and could not

discharge pellets.” 886 So. 2d at 213.

Here, unlike in those cases, the only reasonable inference from the evidence

was that Vega’s BB gun was a deadly weapon. With Vega’s “words and actions, he

implied that the gun was loaded and operable.” See Mitchell, 698 So. 2d at 562.

And “[n]othing visible to [Ms. Zoriano] in this case would lead any rational person

to conclude that the BB gun was not a loaded and operable, deadly or dangerous

weapon.” See id. Just as it was in Mitchell, “this evidence is sufficient to support”

the robbery with a deadly weapon conviction. See id.

4

Vega also relies on K.C. v. State, 49 So. 3d 841 (Fla. Dist. Ct. App. 2010). But K.C.

isn’t helpful because it was decided well after the 2007 trial. The question for the state habeas

court was whether trial counsel’s decision was deficient in 2007. Decisions discussing Florida law

after 2007 aren’t helpful to whether trial counsel was ineffective in 2007. See Strickland, 466 U.S.

at 689 (“A fair assessment of attorney performance requires that every effort be made to eliminate

the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time.”); Davis v. Singletary,

119 F.3d 1471, 1476 (11th Cir. 1997) (“It was not professionally deficient for [counsel] to fail to

anticipate that the law in Florida would be changed in the future to bar the admission of” certain

evidence); Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (“We have held many

times that reasonably effective representation cannot and does not include a requirement to make

arguments based on predictions of how the law may develop.”) (cleaned up).

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In any event, Vega’s argument misses the point. Applying the double

deference due to the state habeas court’s determination that the evidence was

sufficient—and thus, trial counsel was not ineffective for failing to move for a

judgment of acquittal—our review is limited to whether a fairminded jurist could

agree with the state court’s decision, although others might disagree. Even if Jones

and E.S. supported Vega’s position (they don’t), Dale and especially Mitchell do

not.

CONCLUSION

For these reasons, we affirm the district court’s conclusion that the state

habeas court’s determination that Vega’s trial counsel was not ineffective was not

contrary to, or an unreasonable application of, Strickland.

AFFIRMED.

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MARTIN, Circuit Judge, concurring in the result:

In this appeal, Ricardo Vega asks us to review his claim that his trial counsel

was ineffective because she did not seek a judgment of acquittal (“JOA”) based on

the state’s failure of proof on the issue of whether the weapon Vega was charged

with using during a robbery was a deadly weapon under Florida law. My review

of the record persuades me that the postconviction court gave short shrift to Mr.

Vega’s claim. On the one hand, it acknowledged that the weapon attributed to Mr.

Vega was a “BB gun ‘replica’ of a semiautomatic pistol.” On the other, the court

showed no concern that the only evidence the jury heard was that Mr. Vega

possessed a “gun” or a “firearm.” In the end, the postconviction court summarily

denied Mr. Vega’s claim by simply adopting the state’s argument against it.

I understand the Florida law governing the crime for which Mr. Vega was

convicted to require proof that the weapon attributed to him was a deadly weapon.

But the state failed to produce evidence sufficient to prove Mr. Vega’s BB gun was

a deadly weapon. The jury never heard, for example, whether the weapon was

even operational. Neither did the jury have any opportunity to examine the

weapon. Despite my concerns, I am aware that our Court must review the work of

Florida’s postconviction court under the deferential standard established by

AEDPA. And under that standard, I cannot say that the postconviction court’s

decision was contrary to, or involved an unreasonable application of, clearly

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established federal law, or that it resulted in a decision that was based on an

unreasonable determination of the facts. For this reason, I concur in the result

reached by the majority opinion. I write separately because I do not share the

certainty expressed in the majority opinion that the postconviction court did the

right thing. I would have preferred that Mr. Vega’s ineffective assistance claim to

get a closer look.

I.

As the reader surely knows by now, Mr. Vega’s appeal centers on his

argument that trial counsel was ineffective for failing to move for JOA on the

ground that the state did not put forward sufficient evidence that the BB gun used

in the robbery was a deadly weapon.1 I think the Florida postconviction court

should have more closely scrutinized the performance of Mr. Vega’s counsel on

this issue.

Mr. Vega argues that the state’s evidence was insufficient to prove the BB

gun was a deadly weapon and that his counsel’s performance was deficient

because she failed to bring this problem to the court’s attention by way of a motion

for JOA. He says the jurors were required to find that he possessed a deadly

1

As the reader also knows by now, in order to prove a claim of ineffective assistance of

counsel, a person must show not only that his lawyer’s performance was deficient, but also that

the lawyer’s poor performance had a bad effect or prejudiced him. I address Mr. Vega’s

argument about his lawyer’s poor performance because his ineffective assistance claim turns on

that prong.

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weapon. Yet his jury was never even informed that Mr. Vega had only a BB gun.

Because the only evidence the jury heard about the weapon was that it “‘appeared’

to be a real firearm,” Mr. Vega says they were never equipped to consider the

pertinent issue: whether the BB gun itself was actually deadly in this case.

Under Florida law, “the State is required to prove each and every element of

the offense charged beyond a reasonable doubt to establish a prima facie case.”

Greenwade v. State, 124 So. 3d 215, 220 (Fla. 2013). “If the prosecution fails to

meet this burden, the case should not be submitted to the jury, and a judgment of

acquittal should be granted.” Id.; see also Woodall v. State, 94 So. 3d 666, 668

(Fla. 5th DCA 2012) (“The State’s failure to prove that the offense was committed

in the manner charged may serve as grounds for a motion for a judgment of

acquittal.”). In this way, the purpose of a motion for judgment of acquittal is to

test the legal sufficiency of the evidence presented by the State. State v. Lalor, 842

So. 2d 217, 219 (Fla. 5th DCA 2003). The inquiry thus becomes whether Mr.

Vega’s counsel could have—or should have—moved for JOA. This, of course,

turns on Florida law.2

Mr. Vega was charged with robbery with a deadly weapon under Fla. Stat.

§ 812.13(2)(a). Section 812.13(2) says:

2

I do not challenge the conclusion of the majority that a Florida court’s interpretation of

Florida law “does not conflict with or unreasonably apply any federal law.” See Maj. Op. at 17.

My difference is with the majority’s interpretation of Florida law.

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(2)(a) If in the course of committing the robbery the offender carried a

firearm or other deadly weapon, then the robbery is a felony of the first

degree, punishable by imprisonment for a term of years not exceeding

life imprisonment or as provided in s. 775.082, s. 775.083, or s.

775.084.

(b) If in the course of committing the robbery the offender carried a

weapon, then the robbery is a felony of the first degree, punishable as

provided in s. 775.082, s. 775.083, or s. 775.084.

A “deadly weapon” is a weapon “likely to produce death or great bodily injury.”

Dale v. State, 703 So. 2d 1045, 1047 (Fla. 1997) (quotation marks omitted).

“Whether or not the weapon involved is to be classed as ‘deadly’ is a factual

question to be resolved by the jury under appropriate instructions, id. (quotation

marks omitted), “taking into consideration its size, shape, and material and the

manner in which it was used,” Lynn v. State, 567 So. 2d 1043, 1045 (Fla. 5th DCA

1990).

The State charged Mr. Vega with “carry[ing] a deadly weapon, to-wit: a BB

gun or a handgun.” At trial, the jury heard from Ms. Zoriano that Mr. Vega

entered Jalapeno’s “with a weapon in his hand.” The State asked Ms. Zoriano

whether Mr. Vega had a gun, and she said he did. She said he pointed the gun

toward her and said “give me the money.” She testified she was afraid Mr. Vega

was going to shoot her because she believed the gun was real. Detective Brisinte

testified he witnessed Mr. Vega go into Jalapeno’s and “start[] pointing his gun at

people.” He agreed with the State’s characterization that the weapon Mr. Vega

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carried “appeared to be a firearm,” it “appear[ed] to be a regular gun that shoot[s]

bullets.” In sum, and as the state said in closing, the only evidence introduced at

trial was that “there was a handgun.”

The jury was then instructed:

If you find the defendant carried a deadly weapon described in the

charge in the course of committing the robbery and that the deadly

weapon described in the charge was a deadly weapon, you should find

the defendant guilty of robbery with a deadly weapon. If you find the

defendant carried a weapon that was not a deadly weapon in the course

of committing the robbery, you should find the defendant guilty of

robbery with a weapon. If you find that the defendant carried no

firearm or weapon in the course of committing the robbery, but did

commit the robbery, you should find the defendant guilty only of

robbery.

The state court then defined “firearm,” “deadly weapon,” and “weapon.” 3

Mr. Vega’s counsel did not argue that the evidence was insufficient to prove that

Vega had a deadly weapon.

The postconviction court denied Mr. Vega relief. First, it found that “[t]he

only reason” the State did not charge Mr. Vega with robbery with a firearm was

because “he was caught with a BB gun ‘replica’ of a semiautomatic pistol when

committing a home invasion robbery three days later.” The postconviction court

3

The court told the jury a “firearm” is “any weapon including a starter gun, which will, is

designed to, or may be readily converted to expel a projectile by the action of any explosive, the

frame or receiver of any such weapon, any firearm muffler or firearm silencer, any destructive

device, or any machine gun. . . .” The jury was also told that a “weapon” is “any object that

could be used to cause death or inflict serious bodily harm.” Finally, the jury was instructed that

a “weapon is a deadly weapon if it is used or threatened to be used in a way likely to produce

death of great bodily.”

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said the prosecutor gave Mr. Vega “the benefit of the doubt and assumed that he

had used the same replica in [the Jalapeno’s] robbery.” It then found Ms.

Zoriano’s and Detective Brisinte’s trial testimony sufficient to convict Mr. Vega of

robbery with a deadly weapon and recited that there is “no requirement that a

firearm or a deadly weapon be introduced into evidence.”

In this appeal, the state says “[w]hether the gun used to commit the robbery

was a BB gun or a deadly weapon or a handgun, was not an issue at trial.” To the

contrary, I understand the jury was charged with deciding whether Mr. Vega used a

deadly weapon. It therefore seems to me that the state’s characterization of the

weapon at trial, and the postconviction court’s view of that characterization,

matters.

Again, the postconviction court in Mr. Vega’s case acknowledged that the

actual weapon at issue was a “BB gun ‘replica’ of a semiautomatic pistol.” Based

on this fact, the court also acknowledged that Mr. Vega was not charged with

robbery with a firearm. But as I’ve said, the jury never heard about the BB gun.

The jurors heard only that Mr. Vega had a “gun” or a “firearm.” On this record,

the postconviction court summarily ruled that the testimony that the weapon

“appeared to be a gun” was sufficient. So in Mr. Vega’s case, the postconviction

court engaged in a flawed process: it credited the state with charging Vega with a

“BB gun ‘replica’ of a semiautomatic pistol,” thereby recognizing the actual

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weapon used, but then went on to find the testimony indicating that Vega

possessed an entirely different type of weapon was sufficient to convict him of

robbery with a deadly weapon.

Under Florida law, a gun is not necessarily a “firearm.” Neskovski v. State,

568 So. 2d 468, 469 (Fla. 5th DCA 1990) (per curiam); see also id. at 469–70

(Goshorn, J., concurring) (explaining that there is a statutory definition that a

“gun” must meet in order to qualify as a “firearm”). True too, a gun, a “firearm-

looking weapon” (like a BB gun), or other weapon may qualify as a deadly

weapon. See Dale, 703 So. 2d at 1047; Mitchell v. State, 274 So. 3d 1136, 1140

(Fla. 5th DCA 2019). However, this important distinction is fact-based, and is left

to the jury to be answered “in each case.” Dale, 703 So. 2d at 1047. The jury may

certainly consider a victim’s testimony about the defendant’s words and actions—

which may have implied the weapon was operational and capable of causing

deadly injury—to support a finding that the weapon met a certain statutory

definition under Florida law. See, e.g., Akins v. State, 838 So. 2d 637, 639 (Fla.

5th DCA 2003) (“[T]he victim’s testimony that she thought the weapon was a

sawed off shotgun, coupled with Akins’s nonverbal implication that he would use

it against the victim, sufficed to support a finding that Akins possessed a firearm

during the robbery.”). If that evidence is sufficient, a BB gun can be a deadly

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weapon. I don’t disagree with the majority’s summary of Florida law on this topic,

so far as it goes. See Maj. Op. at 18–21.

My concern is that the evidence introduced at Mr. Vega’s trial did not allow

the jury to make an informed decision about whether he used a deadly weapon.

My review of Florida cases shows that in almost every case in which Florida courts

have upheld the jury’s finding that a weapon was a deadly weapon, the evidence

consisted of some combination of the following: the weapon was introduced into

evidence and jurors were able to view the weapon; jurors were given a description

of the weapon; or the issue of whether the weapon was operational when it was

used was introduced to the jury. 4 And in other cases like this one—in which it was

4

See Dale, 703 So. 2d at 1046–47 (holding there was sufficient evidence to show a BB

gun was a deadly weapon because the jury “view[ed] the weapon first-hand” (a fact of “key

importance”), and officers testified about the gun’s condition and showed the jury “in detail how

the gun operated”); Gartner v. State, 118 So. 3d 273, 275, 277 (Fla. 5th DCA 2013) (holding

there was sufficient evidence that a BB gun was a deadly weapon where witness identified the

BB gun as the weapon used during the robbery, the BB gun was entered into evidence, and

defense counsel raised the issue of whether the BB gun in evidence “was the exact weapon

used”); Gayden v. State, 184 So. 3d 1203, 1204 & n.1 (Fla. 5th DCA 2016) (holding evidence of

use of a deadly weapon as sufficient where the .380 mm handgun was described as a “handgun,”

and firearms technician testified the handgun was functional and there were several reasons why

it failed to shoot a bullet when the trigger was pulled); Bunkley v. State, 882 So. 2d 890, 891

(Fla. 2004) (holding there was sufficient evidence that a “dangerous weapon” was used where

witnesses testified the weapon was a “good sized buck knife,” an officer testified that the knife

was dangerous because it could be locked in the open position and the defendant admitted the

knife could cut a throat, and jury could examine the knife for themselves); Lynn v. State, 567 So.

2d 1043, 1045 (Fla. 5th DCA 1990) (holding that evidence was sufficient to show that an air

pellet pistol was a deadly weapon even though, when it was seized by police, it was inoperable,

because it “was not unreasonable for the jury to infer that the pistol was loaded and operational”

when the defendant used it in light of his threat to use it and witness testimony that the defendant

went shopping for a CO2 cartridge for the pellet gun the morning of the robbery); see also

Browne v. State, 239 So. 3d 171, 172–74 (Fla. 5th DCA 2018) (overturning conviction for

robbery with a weapon when the record showed only that the barrel of the double-barreled

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not clear whether the weapon was a firearm—defense counsel made a case that the

weapon did not have the capacity to cause serious injury, affirmatively placing the

“deadly weapon” issue before the jury.5

In Mr. Vega’s case, the BB gun was not introduced as evidence. The jury

never saw the weapon and only heard testimony describing it as a gun or firearm.

The only testimony about how it operated came when Detective Brisinte agreed

with the State’s characterization that the weapon Mr. Vega carried “appear[ed] to

be a regular gun that shoot[s] bullets.” But Mr. Vega’s counsel never argued the

weapon was not a gun and did not challenge whether it was deadly. Nevertheless,

the postconviction court never considered these nuances when it summarily denied

Mr. Vega’s ineffective assistance claim. Instead, it adopted the state’s apples-to-

oranges comparison of the evidence the jury heard about the weapon—that it

shotgun was detached from the stock and firing mechanism, and the defendant pointed the barrel

at the victim but did not use it as a club or bludgeon, meaning that there was not sufficient

evidence the shotgun barrel was a “weapon” under Florida law); Brown v. State, 86 So. 3d 569,

570, 573–74 (Fla. 5th DCA 2012) (overturning conviction for aggravated battery with a deadly

weapon when the only evidence in the record was that the defendant hit the victim with “two

hollow, flimsy, plastic broomsticks,” and “the jury did not have the ability to view the

broomsticks to determine if they were of the size, shape, and material to cause serious injury”).

5

See Mitchell, 274 So. 3d at 1137–38, 1140 (upholding finding that the “firearm-looking

weapon” was a deadly weapon where the defendant threatened to use it in a way to produce

death or great bodily harm and defendant’s counsel had the opportunity to expressly argue “‘we

don’t know if it’s a real gun or not’ or ‘if it was a gun’”); Davis v. State, 235 So. 3d 320, 321

(Fla. 2018) (upholding jury’s finding that a “firearm or a BB gun replica of a firearm” was a

weapon, not a deadly weapon).

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appeared to be a firearm—with what the actual weapon was—“a BB gun ‘replica’

of a semiautomatic pistol.”6

The state postconviction court missed an opportunity to take a closer look at

Mr. Vega’s claim and draw out these important nuances. Had it done so, it may

have given Mr. Vega the chance he never received to develop his claim that he was

convicted of a crime for which the state failed to prove all elements. I think he

should have been given that chance.

6

The postconviction court’s order is almost a verbatim copy of the State’s argument in

response to Mr. Vega’s postconviction motion.

34