Troy Curry-Pennamon v. Secretary, Florida Department of Corrections

USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 1 of 17

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14106

Non-Argument Calendar

____________________

TROY CURRY-PENNAMON,

Petitioner-Appellee-Cross Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

FLORIDA ATTORNEY GENERAL,

Respondents-Appellants-Cross Appellees.

____________________

Appeals from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:18-cv-01528-HLA-PDB

____________________

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2 Opinion of the Court 20-14106

Before WILLIAM PRYOR, Chief Judge, GRANT and BRASHER,

Circuit Judges.

PER CURIAM:

The key issue in this appeal is whether the district court

erred when it granted Troy Curry-Pennamon, a Florida prisoner, a

writ of habeas corpus. See 28 U.S.C. § 2254. The district court va-

cated Curry-Pennamon’s conviction for attempted second-degree

murder on the ground that his appellate counsel was ineffective for

belatedly arguing on rehearing that a jury instruction was funda-

mental error. But the district court rejected Curry-Pennamon’s

claims that his trial counsel was ineffective. Because the state courts

did not unreasonably apply clearly established federal law when

they rejected Curry-Pennamon’s postconviction challenges, we af-

firm the denial of relief on his claims of ineffective trial counsel,

reverse the grant of relief on his claim of ineffective appellate coun-

sel, and remand for the district court to reinstate his conviction.

I. BACKGROUND

We divide the background into three parts. First, we de-

scribe Curry-Pennamon’s trial and direct appeal. Second, we de-

scribe Curry-Pennamon’s unsuccessful state postconviction chal-

lenges to trial counsel, see Fla. R. Crim. P. 3.850, and to appellate

counsel, see id. 9.141(d). Third, we describe Curry-Pennamon’s

federal habeas corpus proceeding.

A. Curry-Pennamon’s Trial and Direct Appeal

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In July 2013, a Florida court tried Curry-Pennamon on

charges of attempted first-degree murder and of carrying a con-

cealed weapon. Victim Jacquan Holloway and his coworkers at

Walmart testified that Holloway became angry when his girlfriend

and Curry-Pennamon, who were also Walmart employees, flirted

on the job. Holloway testified that he argued with Curry-Penna-

mon inside Walmart and later in its parking lot, where Holloway

threatened to “whip [Curry-Pennamon’s] a**” and punched Curry-

Pennamon, who fell to the ground.

Curry-Pennamon testified that he armed himself with a gun

he kept in his glove compartment after seeing Holloway walk into

the parking lot. An outdoor surveillance video camera recorded

Curry-Pennamon exit his vehicle and yell at Holloway. Holloway

approached and then punched Curry-Pennamon, who fell to the

ground and drew his gun. Curry-Pennamon testified that he stood

up, chased, and shot at Holloway because it did not “register” that

Holloway was running away. Curry-Pennamon testified that Hol-

loway “could have” turned and harmed him.

After the state rested its case, and again at the end of all the

evidence, defense counsel moved, without success, for a judgment

of acquittal on both charges. Counsel argued that, as an employee

at his place of business, Curry-Pennamon was not required to have

a permit to carry a concealed weapon. See Fla. Stat. § 790.25(3)(n).

The trial court ruled that Curry-Pennamon did not qualify for the

exception because he wielded his gun outside of and not in defense

of Walmart.

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4 Opinion of the Court 20-14106

The trial court instructed jurors to consider all the circum-

stances in determining whether Curry-Pennamon’s use of deadly

force was justifiable. The trial court stated that “[a] person is justi-

fied in using deadly force if he reasonably believes that such force

is necessary to prevent imminent death or great bodily harm to

himself or another or the imminent commission of an aggravated

assault upon—against himself or another.” It instructed the jurors,

“In deciding whether [Curry-Pennamon] was justified in the use of

deadly force, . . . [to] judge him by the circumstances by which he

was surrounded at the time the force was used” and that “[b]ased

upon appearances, [he] must have actually believed the danger was

real.” The trial court also instructed the jury about the right to

stand one’s ground if faced with imminent injury:

If the defendant was not engaged in an unlawful ac-

tivity and was attacked in any — in any place where

he had a right to be, he had no duty to retreat and he

had the right to stand his ground and meet force with

force, including deadly force, if he reasonably be-

lieved that it was necessary to do so to prevent death

or great bodily harm to himself or another or to pre-

vent the commission of a forcible felony.

Finally, the trial court instructed the jurors that “[c]arrying

a concealed weapon constitutes unlawful activity.”

The jury found Curry-Pennamon guilty of attempted sec-

ond-degree murder, as a lesser-included offense of attempted first-

degree murder, and of carrying a concealed weapon. The trial

court sentenced Curry-Pennamon to 25 years of imprisonment for

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20-14106 Opinion of the Court 5

attempted murder and to a concurrent term of five years of impris-

onment for his firearm offense.

On direct appeal, appellate counsel succeeded in having

Curry-Pennamon’s firearm conviction reversed. Curry-Pennamon

v. State, 159 So. 3d 158 (Fla. Dist. Ct. App. 2015). The First District

Court of Appeals ruled that Curry-Pennamon had been entitled to

a judgment of acquittal based on the place-of-business exception,

Fla. Stat. § 790.25(3)(n). 159 So. 3d at 159–60. The appellate court

summarily rejected Curry-Pennamon’s two challenges to his at-

tempted murder conviction. Id. at 159. Curry-Pennamon argued

that the trial court gave conflicting jury instructions on the duty to

retreat—instructing that he had to exhaust all means of escape be-

fore using deadly force and that he had no duty to retreat—which

confused the jury and negated his only defense. Curry-Pennamon

also argued that the trial court failed to instruct the jury that self-

defense was a defense to attempted second-degree murder.

Appellate counsel petitioned for rehearing. Counsel argued,

for the first time, that fundamental error occurred when the trial

court instructed the jury that carrying a concealed gun was unlaw-

ful and that Curry-Pennamon had a duty to retreat when he carried

the gun lawfully. The State responded that Curry-Pennamon could

not raise an unpreserved issue on rehearing. The State also argued

that the allegedly improper jury instructions did not amount to

fundamental error because Curry-Pennamon could not have rea-

sonably believed deadly force was necessary when he shot the vic-

tim as he ran away. The appellate court summarily denied the

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6 Opinion of the Court 20-14106

petition. Curry-Pennamon v. State, No. 1D13-4327 (Fla. Dist. Ct.

App. Mar. 25, 2015).

B. Curry-Pennamon’s Unsuccessful State Postconviction Filings

Curry-Pennamon moved for postconviction relief and ar-

gued that trial counsel was ineffective for failing to request two jury

instructions. See Fla. R. Crim. P. 3.850. First, Curry-Pennamon ar-

gued that counsel should have requested a jury instruction on the

place-of-business exception and objected to the instruction that car-

rying a concealed weapon was an unlawful activity because it ne-

gated his self-defense argument. Second, Curry-Pennamon argued

that his counsel should have requested a special instruction that he

could arm himself due to prior threats by Holloway. The State op-

posed the motion.

The state postconviction court denied Curry-Pennamon’s

motion. The court ruled that counsel was not required to request

an instruction on an exception that the trial court twice ruled did

not apply to the facts of the case. The court also ruled that counsel’s

failure to request a prior-threats instruction did not prejudice

Curry-Pennamon because the jury was instructed to consider all

circumstances to determine whether the use of deadly force was

justifiable.

Next, Curry-Pennamon petitioned the First District Court of

Appeal for postconviction relief based on ineffective assistance of

appellate counsel. See Fla. R. Crim. P. 9.141(d). Curry-Pennamon

argued that appellate counsel failed timely to challenge the faulty

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jury instruction on carrying a concealed firearm. The appellate

court summarily denied Curry-Pennamon’s postconviction peti-

tion. Curry-Pennamon v. State, 197 So. 3d 45 (Fla. Dist. Ct. App.

2016).

C. Federal Habeas Corpus Proceeding

Curry-Pennamon petitioned for a writ of habeas corpus on

four grounds. 28 U.S.C. § 2254. First, Curry-Pennamon reasserted

that trial counsel should have requested jury instructions on the

place-of-business exception and on prior threats. Next, Curry-Pen-

namon argued, for the first time, that his trial counsel should have

requested an instruction that he could stand his ground and use

deadly force as “necessary to prevent imminent death or great bod-

ily harm,” see Fla. Stat. § 776.012(1), regardless of whether he was

engaged in an unlawful activity. And Curry-Pennamon argued it

did not matter the claim was procedurally defaulted because the

failure of postconviction counsel “to raise the[] claim[] in his origi-

nal Rule 3.850 motion” provided cause to excuse the default. See

Martinez v. Ryan, 566 U.S. 1 (2012). Finally, Curry-Pennamon re-

asserted that appellate counsel earlier should have challenged the

faulty instruction on carrying a concealed weapon.

The State opposed the petition. First, the State argued that

trial counsel did not have to raise the place-of-business exception

issue a third time. Second, the State argued that Curry-Pennamon

lacked cause to excuse his procedural default because his argument

for trial counsel to request an instruction on section 776.012 was

not substantial. See id. Alternatively, the State argued that trial

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8 Opinion of the Court 20-14106

counsel’s inaction was harmless because Curry-Pennamon “was

still accorded the protections of the Stand Your Ground law.”

Third, the State argued that appellate counsel exercised reasonable

professional judgment by arguing that the jury instructions were

confusing, internally conflicting, and negated Curry-Pennamon’s

theory of self-defense.

The district court rejected Curry-Pennamon’s claims that

trial counsel was ineffective, but it issued the writ on his claim in-

volving appellate counsel. The district court reasoned that appel-

late counsel was deficient in waiting until rehearing to raise the

strongest challenge to Curry-Pennamon’s attempted second-de-

gree murder conviction, which resulted in the motion being denied

on procedural grounds instead of being entertained on the merits.

And the district court reasoned that appellate counsel’s error prej-

udiced Curry-Pennamon because the jury would not have con-

victed him without the erroneous instruction that “painted [him]

as a non-law-abiding citizen who had a duty to retreat.” The district

court refused to defer to the decision of the state court because it

did not cite Strickland v. Washington, 466 U.S. 668 (1984), and, in

the alternative, for unreasonably applying Strickland.

Both the State and Curry-Pennamon appealed. We granted

Curry-Pennamon a certificate of appealability to address his claims

that his trial counsel was ineffective. See 28 U.S.C. § 2253(c).

II. STANDARD OF REVIEW

We review de novo the grant or denial of a petition for a

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20-14106 Opinion of the Court 9

writ of habeas corpus. Reed v. Sec’y, Fla. Dep’t of Corr., 767 F.3d

1252, 1260 (11th Cir. 2014). The Antiterrorism and Effective Death

Penalty Act “imposes a highly deferential standard for evaluating

state-court rulings.” Id. at 1261 (quoting Renico v. Lett, 559 U.S.

766, 773 (2010)). A state prisoner is entitled to a writ of habeas cor-

pus only if the state court reached a decision that “involved an un-

reasonable application of . . . clearly established Federal law.” 28

U.S.C. § 2254(d)(1). That is, the state court must have “identifie[d]

the correct governing legal principle from the Supreme Court’s de-

cisions but unreasonably applie[d] that principle to the facts of the

prisoner’s case.” Reed, 767 F.3d at 1260 (internal quotation marks

omitted and alterations adopted). “[A]n unreasonable application

of . . . [a Supreme Court decision] must be objectively unreasona-

ble, not merely wrong; even clear error will not suffice.” White v.

Woodall, 572 U.S. 415, 419 (2014) (internal quotation marks omit-

ted). The prisoner “must show that the state court’s ruling on the

claim . . . was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possi-

bility for fairminded disagreement.” Harrington v. Richter, 562

U.S. 86, 103 (2011).

III. DISCUSSION

Both the State and Curry-Pennamon challenge the judg-

ment of the district court. The State argues that the district court

gave no deference to the decision of the state court that appellate

counsel did not render ineffective assistance. Curry-Pennamon ar-

gues that trial counsel was ineffective for failing to request jury

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10 Opinion of the Court 20-14106

instructions on the place-of-business exception, prior threats, and

the state stand-your-ground law.

Curry-Pennamon must “[s]urmount[] . . . [a] high bar” to

overcome the presumption that his trial counsel performed ade-

quately. See Richter, 562 U.S. at 105. Not only must Curry-Penna-

mon prove that his trial counsel committed an error that was “so

serious as to deprive [him] of a fair trial,” Strickland, 466 U.S. at

687, he also must overcome the “‘doubly deferential’ [standard that

applies] when, as here, a state court has decided that counsel per-

formed adequately.” Dunn v. Reeves, 141 S. Ct. 2405, 2410 (2021).

“[I]n more concrete terms, a federal court may grant relief only if

every fairminded jurist would agree that every reasonable lawyer

would have made a different decision.” Id. at 2411 (internal quota-

tions marks omitted and alteration adopted).

A. The District Court Erred by Rejecting the Decision of the State

Court that Curry-Pennamon’s Claim of Ineffective Assistance of

Appellate Counsel Failed “on the Merits.”

Curry-Pennamon argued at trial that he shot Holloway in

self-defense. Florida law as follows allowed the use of deadly force

when justifiable:

A person who is not engaged in an unlawful activity

and who is attacked in any . . . place where he . . . has

a right to be has no duty to retreat and has the right

to stand his . . . ground and meet force with force,

including deadly force if he . . . reasonably believes it

is necessary to do so to prevent death or great bodily

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20-14106 Opinion of the Court 11

harm to himself . . . .

Fla. Stat. § 776.013(3) (effective Oct. 1, 2005, to June 19, 2014). The

law forbade carrying a concealed firearm without a permit, id.

§ 790.01, but it allowed a person without a permit to carry a con-

cealed firearm at his place of business, id. § 790.25(3)(n).

When selecting what issues to raise on appeal, Curry-Penna-

mon’s appellate counsel was bound by rules of issue preservation.

In Florida, “trial counsel’s failure to object to . . . [an alleged error]

operates as a procedural bar that generally precludes appellate re-

view of such an unpreserved error.” Jimenez v. State, 167 So. 3d

497, 499 (Fla. Dist. Ct. App. 2015). “Unpreserved errors cannot suc-

cessfully be raised on appeal unless they amount to fundamental

error.” Valentine v. State, 98 So. 3d 44, 57–58 (Fla. 2012). To be

fundamental, an error must be “patent,” such that it has a “qualita-

tive effect” on the proceeding, and be “serious.” Thomas v. State,

763 So. 2d 316, 316 (Fla. 2000).

Appellate counsel faced a difficult task in obtaining relief on

an unpreserved argument involving a jury instruction.“[F]or jury

instructions to constitute fundamental error, the error must reach

down into the validity of the trial itself to the extent that a verdict

of guilty could not have been obtained without the assistance of

the alleged error.” Garzon v. State, 980 So. 2d 1038, 1042 (Fla. 2008)

(internal quotation marks omitted). “Where the challenged jury in-

struction involves an affirmative defense, as opposed to an element

of the crime, fundamental error only occurs where a jury instruc-

tion is so flawed as to deprive defendants claiming the defense of a

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12 Opinion of the Court 20-14106

fair trial.” Martinez v. State, 981 So. 2d 449, 455 (Fla. 2008) (internal

quotation marks omitted).

To determine whether the state court unreasonably applied

clearly established federal law when it summarily rejected Curry-

Pennamon’s claim of ineffective appellate counsel, “our task is to

determine what arguments or theories could have supported the

state court’s decision, and . . . [to] deny relief if it is possible fair-

minded jurists could find that decision was not contrary to, or in-

volved an unreasonable application of” Strickland. Pinkney v.

Sec’y, Dep’t of Corrs., 876 F.3d 1290, 1298 (11th Cir. 2017). As in

Pinkney, we interpret that decision “as having been based on the

theory that while the [concealed weapon] instruction was error, it

was not fundamental error and, as a result, the direct appeal court

would not have decided that claim on the merits if appellate coun-

sel had raised the claim.” Id. at 1299.

The state court could have concluded that the faulty jury in-

struction did not create “error so prejudicial as to vitiate the entire

trial.” See Jimenez, 167 So. 3d at 499. The state court could have

concluded that the jury would have returned the same verdict even

if instructed that Curry-Pennamon carried the firearm lawfully. Af-

ter all, Curry-Pennamon pursued and shot Holloway as he ran

away. Based on that evidence, the state court could have concluded

that the jury would have found Curry-Pennamon did not reasona-

bly believe the use of deadly force was “necessary . . . to prevent

death or great bodily harm to himself.” See Fla. Stat. § 776.013(3).

The district court erred by refusing to defer to the decision

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20-14106 Opinion of the Court 13

of the state court. The district court incorrectly rejected the deci-

sion of the state court as unreasonable based on its failure to pro-

vide “an opinion . . . explaining [its] reasoning” or to cite Strickland.

See Richter, 562 U.S. at 98. The district court also erroneously re-

viewed appellate counsel’s conduct de novo. See Shinn v. Kayer,

141 S. Ct. 517, 523 (2020). We reverse the grant of the writ to Curry-

Pennamon based on ineffective appellate counsel.

B. The State Court Reasonably Applied Strickland by Denying

Curry-Pennamon’s Claim that Trial Counsel Should Have Re-

quested a Jury Instruction on the Place-of-Business Exception.

Curry-Pennamon’s claim that trial counsel was ineffective

for failing to request an instruction on the place-of-business excep-

tion fails. See Dunn, 141 S. Ct. at 2411. The state court reasonably

determined that it would have been futile for trial counsel to re-

quest a place-of-business exception instruction after the trial court

twice rejected arguments that the exception applied to Curry-Pen-

namon. See Pinkney, 876 F.3d at 1297 (“[A]n attorney will not be

held to have performed deficiently for failing to perform a futile act

. . . .”). The state court reasonably applied Strickland.

C. The State Court Reasonably Decided that Curry-Pennamon

Was Not Prejudiced by Trial Counsel’s Failure to Request a Jury

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14 Opinion of the Court 20-14106

Instruction on Prior Threats.

Fairminded jurists could also agree that trial counsel’s failure

to request a prior-threats instruction did not prejudice Curry-Pen-

namon. Trial counsel did not need to further highlight uncontested

evidence that Holloway threatened Curry-Pennamon. Meders v.

Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1354 (11th Cir.

2019) (“[I]t is not prejudicial for an attorney to fail to point out to

the jury something that is obvious from the evidence.”). And the

trial court directed the jury to consider Holloway’s threats in de-

termining whether Curry-Pennamon’s use of deadly force was jus-

tifiable. The trial court instructed the jury “[i]n deciding whether

[Curry-Pennamon] was justified in the use of deadly force . . . [to]

judge him by the circumstances by which he was surrounded at the

time the force was used.” The state court reasonably concluded

that trial counsel’s failure to request a prior-threats instruction

would not have changed the outcome of Curry-Pennamon’s trial.

See Richter, 562 U.S. at 105.

D. Curry-Pennamon Failed to Establish Cause to Excuse His Pro-

cedurally Defaulted Claim that Trial Counsel Should Have Re-

quested an Instruction that His Use of Force was Justified.

Curry-Pennamon never presented and procedurally de-

faulted his claim that his trial counsel should have requested a jury

instruction that his use of deadly force was justifiable because he

faced imminent harm even though he was engaged in an unlawful

activity, see Fla. Stat. § 776.012(1) (effective Oct. 1, 2005, to June

19, 2014). See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).

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So Curry-Pennamon could not litigate his claim in his federal ha-

beas corpus proceeding unless he could establish cause and preju-

dice to excuse his default. Id. at 750. To establish cause, Curry-Pen-

namon had to prove that his claim was “a substantial one . . . [in

that] the claim has some merit.” Martinez, 566 U.S. at 14.

When Curry-Pennamon went to trial, a person could be im-

mune from prosecution if his use of deadly force was permitted

under sections 776.012 or 776.013 of the Florida Statutes. Fla. Stat.

§ 776.032(1). Under section 776.013, a defendant could use deadly

force to stand his ground if he was engaged in a lawful activity:

A person who is not engaged in an unlawful activity

and who is attacked in any other place where he or

she has a right to be has no duty to retreat and has the

right to stand his or her ground and meet force with

force, including deadly force if he or she reasonably

believes it is necessary to do so to prevent death or

great bodily harm to himself or herself or another or

to prevent the commission of a forcible felony.

Id. § 776.013(3). Under section 776.012, a defendant could use

deadly force to prevent imminent injury regardless of the lawful-

ness of his activity:

[A] person is justified in the use of deadly force and

does not have a duty to retreat if . . . [he] reasonably

believes that such force is necessary to prevent immi-

nent death or great bodily harm to himself or herself

or another or to prevent the imminent commission of

a forcible felon.

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16 Opinion of the Court 20-14106

Id. § 776.012(1).

Three months before Curry-Pennamon’s trial, the Second

District Court of Appeals certified a question to the Florida Su-

preme Court asking it to decide whether a defendant engaged in an

unlawful activity could be immune from prosecution under section

776.012(1). Little v. State, 111 So. 3d 214, 222–23 (Fla. Dist. Ct. App.

2013). The court in Little held that a felon in possession of a firearm

at the time of the shooting could not avoid prosecution under sec-

tion 776.013 but could do so under section 776.012(1). Id. at 218–

22. But the court acknowledged that its decision potentially con-

flicted with a decision of the Fourth District Court of Appeals that

a felon in possession of a firearm at the time of the shooting could

not be immune from prosecution under section 776.013. State v.

Hill, 95 So. 3d 434, 434 (Fla. Dist. Ct. App. 2012). Although the state

supreme court never answered the question, effective June 20,

2014, amended section 776.012 provides that a person is justified in

using deadly force only if he is not engaged in criminal activity, Fla.

Stat. § 776.012(2).

The uncertainty as to section 776.012(2) at the time of

Curry-Pennamon’s trial established that his claim of ineffective trial

counsel was not substantial and did not provide cause to excuse his

procedural default. See Martinez, 566 U.S. at 14. Trial counsel

could not predict whether Curry-Pennamon could justify his use of

deadly force when, according to the trial court, he had been en-

gaged in the unlawful activity of carrying a concealed weapon

without a permit. See Rambaran v. Sec’y, Dep’t of Corr., 821 F.3d

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20-14106 Opinion of the Court 17

1325, 1334 (11th Cir. 2016) (“[W]e have held many times that rea-

sonably effective representation cannot and does not include a re-

quirement to make arguments based on predictions of how the law

may develop.”). So trial counsel was not ineffective in failing to re-

quest a jury instruction based on section 776.012(1). See Brewster

v. Hetzel, 913 F.3d 1042, 1057 (11th Cir. 2019) (“It is not ineffective

assistance for counsel to fail to make an objection or motion that

depends on the future development of the law.”).

IV. CONCLUSION

We AFFIRM in part, REVERSE in part, and REMAND for

the district court to reinstate Curry-Pennamon’s conviction.