The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 24, 2007
No. 06-13399 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00117-CV-J-32MCR
CEDRIC JONES,
Petitioner-Appellant,
versus
JAMES MCDONOUGH,
ATTORNEY GENERAL OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 24, 2007)
Before ANDERSON, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Cedric Jones (“Jones”), a Florida state prisoner proceeding through counsel,
appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition.
The district court granted a certificate of appealability as to “whether trial
counsel’s performance was deficient for failing to object to a jury instruction
concerning efforts to evade prosecution.” On appeal, Jones argues that his
counsel’s failure to rely upon Fenelon v. State, 594 So. 2d 292 (Fla. 1992)
(holding that a jury instruction on consciousness of guilt based on evidence of
flight was an impermissible judicial comment on the evidence), while objecting to
a special jury instruction on subornation of perjury, constituted ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052 (1984). Jones argues that he has satisfied the Strickland standard because his
counsel’s performance was deficient, and there is a reasonable probability that
preservation of the Fenelon issue would have resulted in a new trial on appeal. He
argues that the district court unreasonably applied the Strickland standard.
We review de novo a district court’s denial of a § 2254 habeas corpus
petition. Conklin v. Schofield, 366 F.3d 1191, 1199 (11th Cir. 2004). Where a
claim was adjudicated on the merits in state court, federal courts may not grant
habeas relief unless the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
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Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
As we explained in Putman v. Head, “[t]he ‘contrary to’ and ‘unreasonable
application’ clauses of § 2254(d)(1) are separate bases for reviewing a state court’s
decisions.” 268 F.3d 1223, 1241 (11th Cir. 2001).
A state court decision is “contrary to” clearly established federal law
if either (1) the state court applied a rule that contradicts the governing
law set forth by Supreme Court case law, or (2) when faced with
materially indistinguishable facts, the state court arrived at a result
different from that reached in a Supreme Court case.
...
A state court conducts an “unreasonable application” of clearly
established federal law if it identifies the correct legal rule from
Supreme Court case law but unreasonably applies that rule to the facts
of the petitioner’s case. . . . [or] unreasonably extends, or
unreasonably declines to extend, a legal principle from Supreme Court
case law to a new context.
Id. (citation omitted).
In deciding whether the state court applied federal law in an unreasonable
manner, we consider whether the state court’s application was objectively
unreasonable. Wellington v. Moore, 314 F.3d 1256, 1261 (11th Cir. 2002). “[A]
federal habeas court may not issue the writ under the reasonable application clause
simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreasonable.” Williams v.
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Taylor, 529 U.S. 362, 411 120 S. Ct. 1495, 1522 (2000).
In addition, state courts need not explain their merits rulings to qualify for
deference under the Antiterrorism and Effective Death Penalty Act (“AEDPA”).
Wright v. Sec’y for the Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002). “All
that is required under § 2254(d)(1) is an adjudication on the merits, not a full state
court opinion.” Parker v. Sec’y for the Dep’t of Corr., 331 F.3d 764, 776 (11th
Cir. 2003). “Even a summary, unexplicated rejection of a federal claim qualifies as
an adjudication entitled to deference under § 2254(d).” Herring v. Sec’y for the
Dep’t of Corr., 397 F.3d 1338, 1347 (11th Cir.), cert denied, 126 S. Ct. 171 (2005).
When a convicted defendant claims that his counsel’s assistance was
ineffective, the defendant must show that (1) counsel’s performance was deficient,
and (2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at
687, 104 S. Ct. at 2064. “For performance to be deficient, it must be established
that, in light of all the circumstances, counsel’s performance was outside the wide
range of professional competence.” Putman, 268 F.3d at 1243. We are highly
deferential in reviewing counsel’s performance, and must utilize the strong
presumption that counsel’s performance was reasonable. Chandler v. United
States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). “[B]ecause counsel’s
conduct is presumed reasonable, for a petitioner to show that the conduct was
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unreasonable, a petitioner must establish that no competent counsel would have
taken the action that his counsel did take.” Id. at 1315.
Under the prejudice prong, the 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.” Strickland, 466 U.S. at 694, 104 S. Ct.
2068. We have noted that in the context of requests for habeas relief predicated
upon ineffective assistance of counsel by state prisoners, the petitioner must do
more than satisfy the Strickland standard. Rutherford v. Crosby, 385 F.3d 1300,
1309 (11th Cir. 2004). The petitioner must also show that the state court “applied
Strickland to the facts of his case in an objectively unreasonable manner.” Id.
(citing Bell v. Cone, 535 U.S. 685, 699, 122 S. Ct. 1843, 1852 (2002).
We have held that reasonably effective representation does not include a
requirement to make arguments based on predictions of how the law might
develop. Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994). Even if a
claim based upon an anticipated change in the law is reasonably available at the
time counsel failed to raise it, such failure does not constitute ineffective
assistance. See Pitts v. Cook, 923 F.2d 1568, 1573-74 (11th Cir. 1991).
As an initial matter, the state court decision is entitled to deference under the
AEDPA because it was an adjudication on the merits. Despite the state trial court’s
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lack of an explanatory opinion, Jones identified Strickland as the controlling law
governing ineffective assistance of counsel claims before the court, and the court
acknowledged considering and reviewing Jones’s claims. Thus, the state court’s
decision was not contrary to Strickland.
Moreover, the state trial court’s decision was not an objectively
unreasonable application of clearly established federal law. The trial transcript
shows that Jones’s counsel did object to the special jury instruction. Thus, Jones’s
sole contention is that the objection was not specific enough because his trial
counsel did not explicitly rely upon the rule in Fenelon. However, Jones admits
that no Florida appellate case has extended the Fenelon restriction on jury
instructions with respect to evidence of flight to a case that involves evidence of
subornation. Accordingly, it cannot be said that the state trial court’s decision was
an objectively unreasonable application of Strickland when it found that the failure
to argue the Fenelon restriction on jury instructions respecting flight did not
constitute ineffective assistance when objecting to a subornation instruction.
Therefore, it is unnecessary to address the second prong of Strickland, namely
whether Jones’s counsel’s conduct prejudiced his defense, because Jones did not
establish that his counsel was deficient under the first prong of Strickland.
The state court’s decision denying Jones’s post-conviction motion was
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neither contrary to, nor an unreasonable application of, clearly established federal
law, and the district court did not err in denying habeas relief.
AFFIRMED.
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