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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13722
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-21145-CMA
DAVIS DORVIL,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 19, 2016)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
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Petitioner Davis Dorvil, a Florida prisoner convicted of second-degree
murder who proceeds with counsel, appeals the district court’s denial of his
petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On appeal,
Petitioner argues that his appellate counsel was ineffective because counsel failed
to argue on appeal that the state trial court committed fundamental error when it
instructed the jury that the lesser-included offense of manslaughter included as an
element a showing of intent. After careful review, we affirm.
I. BACKGROUND
A. State Criminal Conviction and Post-Conviction Proceedings
In 2004, the State of Florida charged Petitioner in an information with one
count of second-degree murder for the shooting and killing of his wife, Herminous
Dorvil, in violation of Fla. Stat. §§ 782.04(2), 775.087. According to the
magistrate judge’s summary of the evidence, Petitioner had been engaged in a
heated argument with his wife and was heard telling her that she had “two strikes.”
Seconds before a gunshot was heard, Petitioner yelled at his wife that he didn’t
care if he went to jail. The gunshot was fired in the head of his wife.
Even though Petitioner was a trained paramedic, he rendered no medical
assistance to his wife nor did he call 911. Instead, he left the residence and was
spotted talking “nonchalantly” on his cellular phone as he walked away from the
house. At some point during his walk, he buried the gun.
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When police and paramedics arrived at the scene, they discovered that
Petitioner’s wife had sustained a penetrating gunshot wound to the head, with the
gun having been fired at close range between 4-8 inches from her head.
Petitioner’s wife subsequently died and Petitioner turned himself into police within
two hours of the shooting.
The second-degree murder case against Petitioner went to trial in December
2006. At the request of the State, and with no objection from Petitioner, the trial
court instructed the jury on the lesser-included offense of manslaughter, in addition
to an instruction on the charged second-degree murder count.
At trial, Petitioner testified, and his counsel argued, that he shot his wife by
accident, and thus was guilty of no crime. Unsurprisingly, the State argued that the
shooting was no accident and that the jury should find Petitioner guilty of second-
degree murder. Specifically, the prosecutor first explained to the jury that the
lesser-included offense of manslaughter required a showing that the Petitioner had
been culpably negligent when he shot his wife. But the prosecutor argued that
Petitioner’s conduct in shooting his wife constituted much more than negligence.
Instead, the prosecutor urged the jury to find Petitioner guilty of the more serious
offense of second-degree murder, noting that Petitioner’s conduct met all of the
elements of second-degree murder and that the court would instruct the jury that it
had an obligation to convict Petitioner of the most serious offense proven beyond a
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reasonable doubt, which was second-degree murder. The prosecutor further went
over the verdict form with the jury, urging the latter to check off the box for
“second-degree murder.”
In response, defense counsel made clear that it was not seeking a conviction
on the lesser-included manslaughter offense, but instead wanted an outright
acquittal: “Again, as far as the state attorney wanting to have a lesser offense. We
don’t want that. Mr. Dorvil was involved in a terrible accident. A-c-c-i-d-e-n-t.
That’s what it was.”
The trial court gave an instruction on both the charged offense of second-
degree murder and its lesser-included manslaughter iteration. The court instructed
the jury that in order to find Petitioner guilty of second-degree murder, the State
had to prove beyond a reasonable doubt that: (1) “Herminous Dorvil is dead”;
(2) “the death was caused by the criminal act of” Petitioner; and (3) “there was an
unlawful killing of Herminous Dorvil by an act imminently dangerous to another
and demonstrating a depraved mind without regard for human life.” As to the
lesser-included offense of manslaughter, the court instructed the jury that it could
find Petitioner guilty of that offense if the State proved beyond a reasonable doubt
that: (1) “Herminous Dorvil is dead” and (2) Petitioner “intentionally caused the
death of Herminous Dorvil and/or the death of Heminous Dorvil was caused by the
culpable negligence of” Petitioner. The trial court explained that culpable
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negligence meant “gross and flagrant” negligence, which demonstrated a reckless
disregard for human life or the safety of others.
The jury found Petitioner guilty of second-degree murder, specifically
finding that Defendant discharged a firearm causing great bodily harm during the
commission of this crime. The trial court sentenced Petitioner to life
imprisonment.
Petitioner appealed to the Florida Third District Court of Appeal (“Third
District”) and filed his brief on January 28, 2008, asserting two errors: the trial
court’s denial of his motion to suppress and its consideration of Petitioner’s refusal
to accept responsibility in determining his sentence. On November 19, 2008, the
Third District affirmed the conviction, finding no error in the trial court’s refusal to
suppress the murder weapon. It, however, reversed the sentence, concluding that
the trial court should not have considered Petitioner’s refusal to accept
responsibility in making its sentencing decision. The state appellate court
therefore remanded the case to the trial court to resentence Petitioner without
consideration of that fact. See Dorvil v. State of Florida, 997 So. 2d 1138 (Fla. 3d
DCA 2008). At resentencing, the trial court again sentenced Petitioner to life
imprisonment.
On November 16, 2009, shortly after he had been resentenced to life
imprisonment, Petitioner filed a second notice of appeal with the Third District
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Court of Appeal. In July 2010, however, his appellate attorney moved to withdraw
as counsel under Anders v. California, 386 U.S. 738 (1967), and State v. Herzig,
208 So. 2d 619 (Fla. 1968), which caselaw sanctions such a motion when there are
no issues of arguable merit. On December 22, 2010, the Third District issued a per
curiam affirmance. Dorvil v. State, 50 So. 3d 1146 (Fla. 3d DCA 2010) (Table).
A few weeks later, in January 2011, Petitioner filed a state petition for a writ
of habeas corpus, arguing that his appellate counsel had rendered ineffective
assistance by not arguing that the trial court committed a fundamental error when it
instructed the jury that the State must prove intent to kill in order for the jury to
find Petitioner guilty of manslaughter. As a remedy, he requested permission to
file a belated appeal. He acknowledged that, at the time of his trial, the Florida
Supreme Court had not yet issued State v. Montgomery, 39 So. 3d 252 (Fla. 2010),
which held that the manslaughter-by-act instruction (which was given at
Petitioner’s trial) was erroneous because it required a showing of intent, and
moreover the error was a fundamental error. Nevertheless, he noted that another
Florida appellate court (albeit not the appellate court overseeing his appeal) had
determined by the time he filed his first appeal challenging his conviction that this
jury instruction was fundamental error. The Third District summarily denied
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Petitioner’s state habeas corpus petition. Dorvil v. State, 75 So. 3d 285 (Fla. 3d
DCA 2011) (Table). 1
B. Federal Habeas Petition
Thereafter, in 2013, Petitioner filed a pro se § 2254 petition in federal
district court. As relevant to this appeal, Petitioner asserted that his appellate
counsel was ineffective for failing to argue that the manslaughter-by-act instruction
given to the jury by the trial court [also referred to as “the 2006 instruction” or “the
2006 manslaughter-by-act instruction”] constituted fundamental error. He
reiterated the point made in his state habeas petition: that although the Florida
Supreme Court had admittedly not yet declared that the manslaughter-by-act
instruction constituted fundamental error at the time of Petitioner’s first direct
appeal, there was a split among the Florida appellate courts as to whether that
instruction constituted fundamental error.
A magistrate judge issued a report and recommendation (“R&R”),
recommending denying Petitioner’s claim. Because no Florida court had
disapproved of the standard manslaughter jury instruction at the time of
Petitioner’s trial, the magistrate judge found that Petitioner’s appellate counsel was
1
On February 8, 2012, Petitioner also filed a state petition for post-conviction relief under
Florida Rule of Appellate Procedure 3.850, raising three claims for relief not relevant to the
present appeal. The trial court denied the petition, and the mandate for the Third District’s
affirmance issued on December 3, 2012. Dorvil v. State, 100 So. 3d 702 (Fla. 3d DCA 2012)
(Table).
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not ineffective for failing to challenge the manslaughter-by-act instruction in the
first direct appeal, briefed in 2008. Moreover, although Montgomery was issued in
April 2010—after Petitioner’s resentencing hearing and two months before his
appellate counsel filed an Anders brief in July 2010—during the pendency of
Petitioner’s second appeal following his re-sentencing, Florida appellate courts had
held that the erroneous 2006 manslaughter-by-act instruction was cured if a trial
court had also instructed the jury on manslaughter-by-culpable-negligence, which
the trial court had done at Petitioner’s trial.
In his objections to this first R&R, Petitioner reiterated that his appellate
counsel rendered ineffective assistance by failing to argue that the manslaughter
instruction constituted fundamental error, which prevented the jury from finding
him guilty of a lesser-included offense. He specifically contended that his
appellate counsel should have raised the issue in supplemental briefing during the
eight months following the issuance of Montgomery, and while his second direct
appeal was still pending in the Third District.
The district court agreed that no ineffective assistance occurred as a result of
appellate counsel’s failure to raise the instruction issue during the first appeal,
which was two years before Montgomery’s issuance. But concluding that
Petitioner’s appellate counsel may have been objectively unreasonable in failing to
submit supplemental briefing raising the manslaughter-by-act jury instruction issue
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while the second appeal was pending in the Third District, the district court
referred Petitioner’s ineffective-assistance claim to the magistrate judge for
reconsideration. The district court also noted that the magistrate judge’s
conclusion that the trial court’s manslaughter-by-culpable-negligence instruction
cured the error was contrary to the Florida Supreme Court’s recent decision in
Haygood v. State, 109 So. 3d 735 (Fla. 2013).
After the magistrate judge appointed counsel for Petitioner and ordered
supplemental briefing, Petitioner asserted that the trial court’s manslaughter
instruction constituted fundamental error because the evidence demonstrated that
he committed an intentional act but did not intend to kill the victim, and there was
therefore no evidence supporting a verdict of manslaughter by culpable
negligence. 2 In particular, Petitioner argued that if his appellate counsel had
challenged the 2006 manslaughter jury instruction during his second direct appeal,
his case would have been in the “pipeline” of cases that were eventually afforded
relief following the Florida Supreme Court’s 2013 decision in Haygood.
In a supplemental R&R, the magistrate judge again recommended that the
district court deny Petitioner’s § 2254 petition. The magistrate judge concluded
that Petitioner had not preserved his claim of ineffective-assistance-of-appellate
2
We note that, to the extent Petitioner is suggesting that there was evidence that he intentionally
shot his wife, but no evidence indicating any culpable negligence on his part, Petitioner’s own
testimony asserted that the shooting was an accident, which would appear to fit as neatly into a
culpable negligence category, as into an intentional act niche.
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counsel during the second direct appeal because he had raised that claim only in
his objections to the R&R; and in any event, the claim was not exhausted and was
thus procedurally barred. Alternatively, as to the merits, the magistrate judge
determined that appellate counsel in Petitioner’s second direct appeal was not
deficient because counsel would have been procedurally barred from raising the
manslaughter-by-act jury instruction issue given that it was not raised in
Petitioner’s first direct appeal, which challenged his conviction (as opposed to his
second direct appeal, which followed Petitioner’s resentencing hearing on remand).
In short, the magistrate judge concluded that the state court properly rejected
Petitioner’s ineffective-assistance-of-appellate counsel claim.
Petitioner filed objections to the magistrate judge’s second R&R. In its
review of Petitioner’s objections, the district court disagreed with the magistrate
judge’s conclusion that Petitioner’s new objections should not be considered
because they were not raised in the first objections. As noted, the magistrate judge
had also concluded that appellate counsel would have been procedurally barred
from challenging the manslaughter-by-act jury instruction in the second appeal
following the resentencing proceeding, because Petitioner had failed to raise the
instruction issue in the challenge to his conviction made in his first direct appeal in
2008. The district court, however, made no determination as to the correctness of
this latter conclusion by the magistrate judge because, on the merits, the court
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concluded that the state habeas court was not objectively unreasonable in finding
that Petitioner’s appellate counsel in the second appeal did not perform
deficiently. 3 Specifically, intervening appellate court decisions issued during the
pendency of the second appeal had found no fundamental error under facts similar
to those in this case, meaning that appellate counsel could reasonably have
concluded that supplemental briefing on the Montgomery issue would not have
been successful.
The district court issued Petitioner a certificate of appealability (“COA”) on
the following issue: “[I]s [Petitioner] entitled to a writ of habeas corpus on the
merits of his ineffective assistance of appellate counsel claim with respect to his
counsel’s performance in his Second Appeal?”
II. DISCUSSION
A. Standard of Review Under AEDPA
We review a district court’s denial of a habeas petition under § 2254 de
novo. Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1245 (11th Cir.
2014), cert. denied, 135 S. Ct. 1562 (2015). Although we review the district
court’s factual findings for clear error, we review its rulings on questions of law
and mixed questions of law and fact de novo. Id.
3
The district court did conclude, however, that the state court was objectively unreasonable in
finding that Petitioner suffered no prejudice as a result of appellate counsel’s actions. But, given
its finding that counsel did not deficiently perform, the existence of prejudice did not warrant a
ruling that counsel had rendered ineffective assistance.
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Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a federal court may only grant habeas relief on a claim that was
adjudicated on the merits by a state court if the latter’s decision “was contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d). The tandem effect of the deference
given generally to state court decisions under AEDPA, combined with the
deferential standard applied to review of an attorney’s performance when
challenged as being ineffective, means that “it will be a rare case in which an
ineffective assistance of counsel claim that was denied on the merits in state court
is found to merit relief in a federal habeas proceeding.” See Rambaran v. Sec’y,
Fla. Dept. of Corr., 821 F.3d 1325, 1331 (11th Cir. 2016) (quoting Gissendaner v.
Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013). “If this standard is difficult to
meet, that is because it was meant to be.” Rambaran, 821 F.3d at 1331 (quoting
Harrington v. Richter, 562 U.S. 86, 102 (2011)).
B. Standard of Review for Ineffective Assistance of Counsel Claim
Petitioner asserts that the district court erred in denying his § 2254 petition
because appellate counsel in his second direct appeal rendered ineffective
assistance by failing to argue that the trial court’s manslaughter-by-act jury
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instruction constituted fundamental error. To establish ineffective assistance of
counsel, a § 2254 petitioner must show that (1) counsel’s performance was
deficient, falling below an objective standard of reasonableness and (2) the
petitioner suffered prejudice as a result of the deficient performance. Strickland v.
Washington, 466 U.S. 668, 687–88 (1984). Prejudice requires a showing “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. Because a § 2254
petitioner must establish both Strickland prongs to prevail on an ineffective-
assistance claim, a court need not consider both prongs if the petitioner fails to
show either deficient performance or prejudice. Cox v. McNeil, 638 F.3d 1356,
1362 (11th Cir. 2011).
In the present case, the Third District Court of Appeal summarily denied
Petitioner’s habeas claim, meaning it provided no explanation of its reasoning. See
Dorvil v. State, 75 So. 3d 285 (Fla. 3d DCA 2011) (Table). We interpret such a
decision as a denial on the merits. See Wright v. Sec’y for Dep’t of Corr., 278 F.3d
1245, 1254 (11th Cir. 2002) (concluding that state court’s summary denial of claim
is considered an adjudication on the merits for purposes of § 2254(d)(1)). Thus,
the Third District’s decision is entitled to the deference mandated by § 2254(d).
Further, Petitioner must show that there was “no reasonable basis” for the state
court’s decision. See Wilson v. Warden, Ga. Diagnostic Prison, __ F.3d __, 14-
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10681, manuscript op. at 14–15 (11th Cir. Aug. 23, 2016) (en banc) (“Where a
state court’s decision is unaccompanied by an explanation,” a petitioner must show
“there was no reasonable basis for the state court to deny relief.” (quotations
omitted)). In short, because Petitioner does not dispute any factual findings, he can
succeed on this appeal only if he shows that the state court’s ruling on his habeas
claim was contrary to, or an unreasonable application of, clearly established federal
law, as determined by the United States Supreme Court. See 28 U.S.C.
§ 2254(d)(1).
“It is well established that the Supreme Court’s decision in Strickland is the
controlling legal authority to be applied to ineffective assistance of counsel
claims.” Sullivan v. DeLoach, 459 F.3d 1097, 1108 (11th Cir. 2006) (quotations
omitted); Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (“Claims of
ineffective assistance of appellate counsel are governed by the same standards
applied to trial counsel under Strickland.”). Under Strickland’s performance
prong, we presume counsel’s performance was “within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688–89. And in the
context of a direct appeal, appellate counsel does not have a duty to raise every
non-frivolous issue, as an effective attorney will winnow out the weaker
arguments, even if they have some merit. Philmore, 575 F.3d at 1264.
C. Whether Appellate Counsel Rendered Ineffective Assistance in
the Second Appeal
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Under current Florida law, the giving of the now defunct portion of the 2006
manslaughter instruction (that is, the portion that is ambiguous as to whether intent
to cause death is an element) constitutes a fundamental error, even if the defendant
failed to object to the instruction at the time of trial and, under certain
circumstances, even if the still-viable culpable negligence instruction was also
given (as it was in this case). Thus, were Petitioner on direct appeal now on his
murder conviction, he might well 4 be entitled to relief.
Petitioner, however, is not here on direct appeal of his conviction, but
instead appeals the district court’s “affirmance” of the state habeas court’s decision
rejecting Petitioner’s claim of ineffective assistance of counsel. That being so, a
preliminary question before us is whether appellate counsel’s failure to anticipate
the change in the law that subsequently occurred, and thus to file supplemental
briefing on the above issue during the second appeal, constituted ineffective
assistance. But the determinative question is whether the state habeas court acted
contrary to clearly-established law when it concluded that appellate counsel did not
render ineffective assistance by his failure to anticipate the later change in Florida
law.
4
For the reasons discussed infra at 23, we do not speak with certainty that Petitioner would be
entitled to relief even now on direct appeal.
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Our recent decision in Rambaran v. Secretary, Department of Corrections,
821 F.3d 1325, 1333 (11th Cir. 2016), which deals with the impact of the same
Florida rulings and involves similar facts, answers this question. Like the case
before us, in Rambaran, a jury had found the defendant guilty of second-degree
murder under Florida law, following the giving of the 2006 instruction on
manslaughter-by-act that was later struck by the Florida Supreme Court in
Montgomery. Shortly before Rambaran filed his direct appeal, the Florida First
District Court of Appeal held that giving the 2006 manslaughter-by-act instruction
was error because it improperly included, as an element, an intent to kill. In
addition, the error was fundamental, meaning it was reviewable even though no
objection had been made. The First District certified the question underlying its
ruling to the Florida Supreme Court. Id. at 1328.
In May 2009, the Florida Supreme Court accepted jurisdiction to decide the
certified question. About a month later, Rambaran filed his direct appeal, arguing
only that the guilty verdict was against the weight of the evidence and that the trial
court should have granted a mistrial. While the appeal was pending, the Second
District issued a decision holding that the 2006 manslaughter instruction was not
error. The Second District certified its decision to the Florida Supreme Court on
October 9, 2009. Id. at 1328
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A couple of months later, in December 2009, the Third District, which was
the circuit before which Rambaran’s appeal was pending (and which happens to
have been the same Florida appellate court to whom Petitioner’s direct appeal was
filed) held that it was not fundamental error to give the 2006 manslaughter
instruction, meaning that an objection in the trial court was necessary to preserve
the issue. Id. at 1328. Thereafter, Rambaran’s attorney filed a reply brief in his
appeal, but did not seek to raise any issue regarding the manslaughter instruction.
Id. at 1329.
The Third District affirmed Rambaran’s conviction in March 2010. On
April 8, 2010, just one day before the mandate issued in Rambaran’s case, the
Florida Supreme Court issued its decision in Montgomery, which held that giving
the 2006 standard manslaughter-by-act instruction constituted fundamental error.
Notably, the Supreme Court did not address whether this error could be cured by
the giving of the companion manslaughter instruction concerning the element of
culpable negligence. Id. at 1329.
After the mandate had issued on April 9, 2010, Rambaran’s attorney had
until July 13 to move to recall the mandate, but he never did so. In the meantime,
on June 2, 2010, the Third District held that giving the erroneous 2006
manslaughter-by-act instruction was not fundamental error if the trial court had
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also instructed the jury on manslaughter by culpable negligence. Id. at 1329 (citing
Cubelo v. State, 41 So. 3d 263, 267–68 (Fla. 3d DCA 2010)).
Within this same time period for recall of the mandate, Rambaran filed a
state habeas petition in the Third District, in May 2010. He made one argument:
that his appellate counsel had rendered ineffective assistance by not arguing on
direct appeal that use of the 2006 standard manslaughter instruction was
fundamental error. The Third District denied his claim in a one-sentence order, on
October 22, 2010. Id. at 1329.
Thereafter, in 2012, Rambaran sought a federal writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging the Third District’s denial of his state
habeas petition. In February 2013, while these federal proceedings were ongoing
in federal district court, the Florida Supreme Court in Haygood v. State, 109 So. 3d
735 (Fla. 2013) held that giving the erroneous manslaughter-by-act instruction
constituted fundamental error on the facts before it, even though a manslaughter-
by-culpable negligence instruction had also been given. Rambaran, 821 F.3d at
1329. Based on the Haygood decision, the federal district court granted
Rambaran’s § 2254 petition, concluding that his appellate counsel’s failure to
anticipate the change in the law and raise a Montgomery claim was ineffective
assistance because had counsel done so, then Rambaran’s appeal would have
remained in the “pipeline,” allowing him to later gain relief when the Florida
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Supreme Court issued Haygood in 2013. Id. at 1329–30. As we explained in
Rambaran, under the Florida “pipeline” theory, a decision announcing a new rule
of law can apply retrospectively, in appropriate circumstances, to all appellants
whose appeals were not final at the time the new rule was announced. Id. at 1330
n.5.
On appeal by the State of the district court’s decision granting the habeas
petition in Rambaran, we reversed. We explained that the district court should
have been looking at the reasonableness of the state habeas court’s denial of
Rambaran’s ineffective assistance claim, “but instead it bypassed that test and went
straight to the reasonableness of appellate counsel’s actions.” Id. at 1331. In doing
so, the district court failed to apply the double-deference standard mandated by
§ 2254 and Strickland. Id. That is, under § 2254, a federal court may grant habeas
relief only if the state court’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” Id. at 1330. Clearly-established law of the
Supreme Court refers to that Court’s “holdings, as opposed to [its] dicta.” Id. As
to Strickland, it imposes an objective standard of reasonableness, and, as noted
supra, this double-deference standard “is doubly difficult for a petitioner to
overcome, and it will be a rare case in which an ineffective assistance of counsel
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claim that was denied on the merits in state court is found to merit relief in a
federal habeas proceeding.” Id. at 1331 (citation omitted).
Applying the above standards to Rambaran’s facts, we concluded that there
was no clearly-established law that would give rise to an inference that
Rambaran’s appellate counsel had performed ineffectively by failing to anticipate a
later change in the law. We noted that the raising of the manslaughter-instruction
issue at any of the pertinent times on appeal would not have afforded Rambaran
relief. Id. at 1334. Specifically, when Rambaran’s counsel filed his initial brief in
the Third District Court of Appeal, only one district court of appeals (not the
Third) had invalidated the jury instruction. By the time of the filing of the reply
brief, two other district courts of appeal (including the Third) had held that the
instruction was not erroneous. Id. Although the Florida Supreme Court’s decision
in Montgomery invalidating the instruction was issued prior to the deadline for
requesting withdrawal of the mandate on the Third District’s decision affirming
Rambaran’s conviction, the failure to request withdrawal of the mandate was also
not unreasonable. Id. Specifically, Montgomery held only that the instruction was
fundamental error. “It said nothing about whether giving that instruction was
fundamental error even if the jury was also instructed on manslaughter by culpable
negligence.” Id. Appellate counsel could have reasonably concluded that
Rambaran’s case was distinguishable from Montgomery because the trial court did
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give the culpable negligence instruction there. Id. “In fact, during the window of
time in which Rambaran might have moved to recall the mandate, the Third
District Court of Appeal made just that distinction in holding that giving the
erroneous manslaughter by act instruction was not fundamental error if the trial
court also instructed the jury on manslaughter by culpable negligence.” Id.
In short, in Rambaran, we concluded that the law “was at best unsettled.”
Id. That being the case, and no holding of the Supreme Court clearly establishing
that to perform within the wide range of reasonable professional assistance,
“counsel must accurately predict how the law will turn out or hedge every bet in
the hope of a favorable development,” we concluded that the state habeas court had
not acted unreasonably in denying habeas relief to Rambaran. Id.
Applying Rambaran to the facts in this case dictates a conclusion that the
law was equally unsettled when Petitioner’s appellate counsel filed his Anders
brief, meaning that the district court correctly ruled that the state habeas court’s
ruling denying habeas relief to Petitioner was not contrary to, not did it involve an
unreasonable application of, clearly-established federal law. As set out above,
while Petitioner’s second appeal, filed after his resentencing hearing, was pending
before the Third District Court of Appeal, the Florida Supreme Court issued its
ruling in Montgomery in April 2010, holding that the standard manslaughter-by-act
instruction was fundamental error. That court did not, however, indicate whether
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fundamental error would still be deemed to have occurred if the trial court had also
instructed the jury on manslaughter by culpable negligence. And, as noted, a
culpable negligence instruction was given in the present case.
In fact, just two months after Montgomery, in June 2010, the Third District
ruled in Cubelo that there was no fundamental error if the invalid manslaughter-by-
act instruction was coupled with a manslaughter-by-culpable negligence
instruction. Thus, when Petitioner’s appellate counsel filed an Anders brief in July
2010, asserting that there was no arguably meritorious issue remaining on appeal,
there was in fact no meritorious issue available, as the Third District’s ruling in
Cubelo knocked the legs out of any argument that fundamental error had occurred
in Petitioner’s case. Further, in July 2010, no other Florida appellate court had
held that the erroneous manslaughter-by-act instruction constituted fundamental
error where the jury was also instructed on culpable negligence.
Indeed, even now it is unsettled whether Petitioner would even benefit from
Haygood. In Dawkins v. State, 170 So. 3d 81 (Fla. 3d DCA 2015), the Third
District noted the limitations of the holding in Haygood. Specifically, Haygood
held that the giving of a culpable negligence instruction would not cure the error
inherent in giving the invalid manslaughter-by-act instruction if “the evidence
supports a finding of manslaughter to act, but does not reasonably support a
finding that the death occurred due to the culpable negligence of the defendant.”
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Dawkins, 170 So. 3d at 82. In Haygood, it was undisputed that the defendant had
acted intentionally in committing the acts that led to the victim’s death, meaning
the evidence did not support a theory of culpable negligence. In contrast with the
dearth of evidence in Haygood, in Dawkins, there was “some evidence from which
the jury reasonably could have found Dawkins guilty of manslaughter by culpable
negligence.” Id. And a culpable negligence instruction had been given. For this
reason, the Third District concluded that no fundamental error occurred. Id. at 82–
83. Similarly, in this case, Petitioner’s own testimony, along with the absence of
any eyewitness testimony, provided some evidence from which the jury could have
inferred culpable negligence in the shooting of his wife.
At any rate, the law being as unsettled at the operative time periods in
Petitioner’s case as it was in Rambaran, we likewise conclude that the state habeas
court did not act contrary to clearly-established law in denying Petitioner’s habeas
petition based on appellate counsel’s failure to raise a Montgomery claim.
Petitioner argues, however, that because appellate counsel filed only an Anders
brief in the second appeal (albeit a merits brief had been filed in the first appeal),
then the state habeas court’s conclusion that appellate counsel did not perform
ineffectively was contrary to law clearly established by the Supreme Court.
In essence, this argument by Petitioner assumes that counsel may not have
performed ineffectively had he filed, in this second appeal, a second substantive
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merits brief that identified some issue—any issue—while at the same time omitting
the Montgomery issue. For example, following this resentencing hearing, had
counsel simply filed a brief once again challenging the sentence, then appellate
counsel’s failure to raise the instruction issue would not have constituted deficient
performance for the reasons set out in Rambaran: the law was too unsettled on
that point to brand as ineffective an attorney who failed to advance the issue. But
because appellate counsel filed no merits brief identifying an unrelated issue, at
least in this second go-round, then, according to Petitioner, counsel’s assistance
was ineffective.
As for the established Supreme Court authority in favor of this proposition,
Petitioner cites to Smith v. Robbins, 528 U.S. 259 (2000). In Robbins, the Supreme
Court held that states may adopt procedures that deviate from those suggested in
Anders for withdrawing as counsel in frivolous appeals, so long as those new
procedures sufficiently protect a defendant’s right to appellate counsel. 528 U.S. at
264–65. That was the Supreme Court’s holding. Rambaran, 821 F.3d at 1332.
The holding that Petitioner extrapolates from Robbins, however, is that
although appellate counsel’s failure to raise a particular issue may not constitute
deficient performance, given the relative lack of merit of the issue, the failure to
raise this same non-meritorious issue may morph into a deficiency if appellate
counsel has declined to file any brief at all on the ground that there is no non-
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frivolous issue available. Why? Because in Robbins, the majority opinion
predicted that “it will be easier for a defendant-appellant to satisfy the first part of
the Strickland test” requiring deficient performance when appellate counsel has
filed no brief at all than when counsel has filed a brief identifying some, but not all
issues, that the defendant believes counsel should have raised.
That prediction may be accurate, but for the reasons set out in Rambaran
when addressing another statement in Robbins, the statement is not a holding, but
is only dictum. Id. at 1332–33. As to Petitioner’s reliance on Robbins’ statement
that to demonstrate that appellate counsel was deficient in filing an Anders brief, a
defendant must show “that a reasonably competent attorney would have found one
nonfrivolous issue warranting a merits brief….,” it is true that Robbins so stated
the general standard. Robbins, 528 U.S. at 288. But we specifically held in
Rambaran that Robbins cannot be read as establishing that appellate counsel
“performs deficiently by failing to anticipate a change in the law….” Rambaran,
821 F.3d at 1332. Given that holding, we cannot read Robbins as clearly
establishing that an attorney is not expected to anticipate a change in the law as to
a particular issue only so long as he files an appellate brief that identifies other
unrelated issues. The second clause of the above sentence is a non sequitur.
Indeed, Robbins did not address appellate counsel’s duty to anticipate changes in
the law.
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In summary, for the above reasons, we conclude that the district court
correctly decided that the state habeas court’s denial of Petitioner’s habeas petition
was not contrary to, nor an unreasonable application of, law clearly determined by
the United States Supreme Court. Accordingly, we affirm the district court’s
denial of Petitioner’s § 2254 petition.
AFFIRMED. 5
5
Petitioner’s unopposed motion to file a reply brief out of time is GRANTED.
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