USCA11 Case: 20-12075 Date Filed: 12/01/2021 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12075
Non-Argument Calendar
____________________
LENNARD SIMMONS,
Petitioner-Appellant,
versus
GREGORY MCLAUGHLIN,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 3:19-cv-00083-TCB
____________________
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2 Opinion of the Court 20-12075
Before WILSON, GRANT and DUBINA, Circuit Judges.
PER CURIAM:
Petitioner Lennard Simmons, a counseled Georgia prisoner,
appeals the district court’s order denying his 28 U.S.C. § 2254 peti-
tion. A single judge of this Court issued a certificate of appealability
(“COA”) on “[w]hether appellate counsel was ineffective for failing
to argue that the state trial judge’s instructions to the jury and in-
quiry into their numerical split coerced a verdict, in violation of
Simmons’s rights to due process and a fair trial.” After reviewing
the record and reading the parties’ briefs, we affirm the district
court’s order denying Simmons relief on his § 2254 petition.
I.
“We review de novo [the] district court’s grant or denial of
a habeas corpus petition.” McNair v. Campbell, 416 F.3d 1291, 1297
(11th Cir. 2005). An ineffective-assistance-of-counsel claim is a
mixed question of law and fact that we review de novo. Jones v.
Campbell, 436 F.3d 1285, 1292 (11th Cir. 2006). However, our re-
view of counsel’s performance is “highly deferential,” and we avoid
second-guessing counsel’s performance. Id. at 1293.
The scope of appellate review is limited to the issues enu-
merated in the COA. 28 U.S.C. § 2253(c)(2)–(3); McKay v. United
States, 657 F.3d 1190, 1195 (11th Cir. 2011). Nevertheless, we will
construe “the issue specification in light of the pleadings and other
parts of the record,” and “[a] COA as including the threshold issue
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20-12075 Opinion of the Court 3
of procedural default as well as the merits” of an issue raised.
Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1258 (11th Cir.
2002) (quotation marks omitted).
II.
Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), there is a
“highly deferential standard for evaluating state-court rulings and
[it] demands that state-court decisions be given the benefit of the
doubt.” Renico v. Lett, 559 U.S. 766, 773, 130 S. Ct. 1855, 1862
(2010) (citation and quotation marks omitted). The AEDPA pro-
vides that, after a state court has adjudicated a claim on the merits,
a federal court may grant habeas relief only if the state court’s de-
cision was (1) contrary to, or involved an unreasonable application
of, clearly established federal law, as determined by the Supreme
Court, or (2) 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). Thus, “[w]e review de novo the district court’s
decision about whether the state court acted contrary to clearly es-
tablished federal law, unreasonably applied federal law, or made an
unreasonable determination of fact.” Reed v. Sec’y, Fla. Dep’t of
Corr., 593 F.3d 1217, 1239 (11th Cir. 2010) (quotation marks omit-
ted). In reviewing the district court’s findings, we are mindful that,
in essence, we are reviewing “the final state habeas judgment.” Id.
(quotation marks omitted).
“The question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but whether
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4 Opinion of the Court 20-12075
that determination was unreasonable—a substantially higher
threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933,
1939 (2007). A state-court decision represents an unreasonable ap-
plication of clearly established federal law if the state court cor-
rectly identifies the governing legal rule from Supreme Court cases
but unreasonably applies it to the facts of a case. Washington v.
Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003). The “unreasonable
application” inquiry requires that the state court decision “be more
than incorrect or erroneous”—it must be “objectively unreasona-
ble.” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166, 1174
(2003).
A decision that is based on state procedural grounds, how-
ever, is not an adjudication on the merits that is entitled to defer-
ence under § 2254(d). See Williams v. Alabama, 791 F.3d 1267,
1272–73 (11th Cir. 2015). A federal claim is subject to procedural
default where (1) the state court applies an independent and ade-
quate ground of state procedure to conclude that the petitioner’s
federal claim is barred or (2) the petitioner never raised a claim in
state court, and it is obvious that the unexhausted claim would now
be procedurally barred under state procedural rules. Owen v.
Sec’y, Dept. of Corr., 568 F.3d 894, 908, 908 n.9 (11th Cir. 2009).
Georgia’s procedural default rule provides an adequate and inde-
pendent state ground for denial of a habeas claim. See Ward v. Hall,
592 F.3d 1144, 1175–76 (11th Cir. 2010); O.C.G.A. § 9-14-48(d). This
rule provides that, absent a showing of cause and prejudice or a
miscarriage of justice, habeas corpus relief shall not be granted in
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20-12075 Opinion of the Court 5
connection with any claim that was not timely raised in accordance
with Georgia procedural rules. O.C.G.A. § 9-14-48(d). Under Geor-
gia law, a claim is procedurally defaulted and cannot be considered
on the merits in a habeas petition if the petitioner fails to raise it on
direct appeal. See Chatman v. Mancill, 626 S.E.2d 102, 105 (Ga.
2006); O.C.G.A. § 9-14-40.
Before seeking federal habeas relief, a state prisoner must ex-
haust his federal constitutional claims in state court by presenting
them to the state’s highest court, either on direct appeal or collat-
eral review. Ward, 592 F.3d at 1156. Federal review of a procedur-
ally defaulted claim is available if a petitioner can show both cause
for the default and actual prejudice resulting from it. Harris v.
Comm’r, Ala. Dep’t of Corr., 874 F.3d 682, 688 (11th Cir. 2017).
Ineffective assistance of counsel may be cause for a procedural de-
fault, but attorney error short of ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984), is not. Jackson v. Herring, 42 F.3d 1350, 1358 (11th Cir.
1995). “In order to establish prejudice to excuse a default, the peti-
tioner must show that there is at least a reasonable probability that
the result of the proceeding would have been different absent the
constitutional violation.” Raleigh v. Sec’y, Fla. Dept. of Corr.,
827 F.3d 938, 957 (11th Cir. 2016) (quotation marks omitted).
Turning to the Sixth Amendment’s guarantee of the right to
the assistance of counsel during criminal proceedings, to prevail on
a claim of ineffective assistance of counsel, a petitioner must
demonstrate that (1) his counsel’s performance was deficient, i.e.,
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6 Opinion of the Court 20-12075
the performance fell below an objective standard of reasonable-
ness; and (2) he suffered prejudice as a result of that deficiency.
Strickland, 466 U.S. at 687–88. The benchmark for judging a claim
of ineffective assistance of counsel is whether counsel’s perfor-
mance so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just
result. Id. at 686.
When the deferential standard of Strickland is combined
with the deferential standard of the AEDPA, the result is a doubly
deferential standard of review in federal court. Harrington v. Rich-
ter, 562 U.S. 86, 105, 131 S. Ct. 770, 788 (2011). Under § 2254(d),
“[t]he 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.” Knowles v. Mirzayance, 556 U.S. 111, 123, 129
S. Ct. 1411, 1420 (2009) (quotation marks omitted). “It was meant
to be, and is, difficult for a petitioner to prevail under that stringent
standard.” Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298,
1301 (11th Cir. 2019), cert. denied, Nance v. Ford, 140 S. Ct. 2520
(2020).
In applying Strickland to an attorney’s failure to object or
move for a mistrial, we ask whether there is a reasonable probabil-
ity of a different result, had counsel objected or moved for a mis-
trial, which requires an error meriting an objection or a mistrial.
Brewster v. Hetzel, 913 F.3d 1042, 1052 (11th Cir. 2019). A defend-
ant who is tried by a jury is entitled to an uncoerced verdict. Id. at
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20-12075 Opinion of the Court 7
1053. “[S]imple pressure to agree” is not coercion, as that pressure
is a natural characteristic of jury deliberations. See id. (quotation
marks omitted). Pressure on a jury becomes coercive when the
court’s actions result in a juror sacrificing her “conscientious scru-
ples for the sake of reaching agreement.” Id. (quotation marks
omitted). A trial court may direct a deadlocked jury to continue
deliberating but may not coerce a juror to surrender an honest be-
lief. Id.
Trial courts have broad discretion in conducting trials, and
we will normally not intervene absent a clear showing of abuse of
that discretion. United States v. Gabay, 923 F.2d 1536, 1541 (11th
Cir. 1991). When appropriate, we will also review the trial court’s
use of an Allen1 charge, a direction used for when jury deliberations
initially fail to result in a verdict, for abuse of discretion, and a court
abuses its discretion only if such a charge was inherently coercive.
See United States v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008).
In considering whether a trial court’s statement unduly co-
erced a jury into rendering a verdict, we “look[] to the language
employed and that language’s impact, under the circumstances, on
the finders of facts.” United States v. Blevinal, 607 F.2d 1124, 1127
(5th Cir. 1979) (quotation marks omitted); see also United States v.
Grow, 977 F.3d 1310, 1329 (11th Cir. 2020) (“The applicable
1
Allen v. United States, 164 U.S. 492, 17 S. Ct. 154 (1896).
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8 Opinion of the Court 20-12075
standard . . . is whether under the totality of the circumstances the
trial judge’s instruction to the jury was coercive.”).
In giving an Allen charge, the district court “instructs a dead-
locked jury to undertake further efforts to reach a verdict.” United
States v. Bush, 727 F.3d 1308, 1311 n.1 (11th Cir. 2013) (quotation
marks omitted). Although we have “criticized the practice of giv-
ing Allen charges, we have squarely held that they are permissible,”
as long as the trial court does not “coerce any juror to give up an
honest belief.” United States v. Anderson, 1 F.4th 1244, 1269 (11th
Cir. 2021) (quotation marks omitted).
We examine the totality of the circumstances to determine
if the trial court’s actions created a substantial risk that one or more
jurors would be coerced into abandoning their honest beliefs.
Brewster, 913 F.3d at 1053. Relevant circumstances include the fol-
lowing:
(1) the total length of deliberations; (2) the number of
times the jury reported being deadlocked and was in-
structed to resume deliberations; (3) whether the
judge knew of the jury’s numerical split when he in-
structed the jury to continue deliberating;
(4) whether any of the instructions implied that the
jurors were violating their oaths or acting improperly
by failing to reach a verdict; and (5) the time between
the final supplemental instruction and the jury’s ver-
dict.
Id. This list is not exhaustive; whether there was a substantial risk
of coercion depends on the totality of the circumstances and an
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20-12075 Opinion of the Court 9
assessment of their cumulative effect. Id. Pressure on jurors is
heightened when the trial court, knowing how the jury is split and
in what direction, instructs the jury to keep trying to reach a unan-
imous verdict. Id. at 1054.
III.
The petitioner relies on Brewster to support his claim that
the trial court violated his rights when it inquired into the jury’s
numerical division and coerced the jury into compromising their
verdict. In Brewster, we found that the trial court’s conduct had
coerced the jury’s verdict, where the jurors “faced the cumulative
effect of a formal Allen charge, three additional instructions from
the court to continue deliberating after the judge knew that there
was only one holdout left, and the removal of all reading material
from the jury room” in response to a report that the holdout juror
was using that material to avoid pressure from the other jurors.
See 913 F.3d at 1054. In particular, the jurors sent six notes to the
trial court stating that they could not reach a verdict and disclosed
how they were divided six times, including how many favored a
guilty verdict and how many did not. Id. at 1047. The trial court
gave a formal Allen charge and additional admonitions that the ju-
rors had to continue deliberating throughout the jury’s deadlock.
Id. When the one juror who would not vote to convict was doing
crossword puzzles, the trial court ordered all reading materials re-
moved from the jury room, and 18 minutes later, the juror re-
turned a guilty verdict. Id. During all this time, Brewster’s counsel
did not object or move for a mistrial. Id.
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10 Opinion of the Court 20-12075
On appeal of the district court’s denial of his § 2254 petition,
Brewster argued that his trial counsel had rendered ineffective as-
sistance by failing to object or move for a mistrial at any point dur-
ing the “deadlocked deliberations.” Id. at 1047. Brewster raised the
same claim in his § 2254 petition that he raised in the state habeas
and state appellate courts, which had rejected his claim after con-
struing it as an attack on one of the trial court’s supplemental in-
structions without specifying which one. Id. at 1051. As a result,
this court concluded that Brewster’s actual substantive claim had
not been decided on the merits in state courts and reviewed it de
novo. Id.
We held that counsel’s performance was deficient because
there was no reasonable strategy for failing to object and move for
a mistrial, where the jury had already made five declarations of
deadlock, two different judges had given four written and oral in-
structions to continue deliberating, the second judge implied that
the holdout juror was violating her oath by not joining the other
jurors, and the jury had periodically disclosed numerical break-
downs in favor of convicting the defendant. Id. at 1057–59. We
also held that counsel’s failure to object and move for a mistrial was
prejudicial, given that the coercive circumstances that led to the
verdict—the judge pressuring a deadlocked jury numerous times
to reach a verdict—undermined the reliability of the verdict and
the fundamental fairness of the trial. Id. at 1056.
Simmons’s reliance on Brewster is misplaced because, re-
viewing the record and considering the totality of the
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20-12075 Opinion of the Court 11
circumstances, the trial court did not violate his constitutional
rights when it made comments to the jury, inquired into its numer-
ical split and instructed the jury to continue deliberations. Neither
party objected to the trial court’s comments to the jury, inquiry
regarding the jury’s numerical split, or the trial court’s instructions.
Further, both parties acknowledged on the record that they were
satisfied with the trial court’s comments, inquiries, and instruc-
tions.
Moreover, the substantive claim that the state trial court’s
conduct violated Simmons’s Fourteenth Amendment rights is pro-
cedurally barred from federal review. The state habeas court de-
nied the claim on the adequate and independent state-law ground
that he failed to raise the claim on direct appeal. Simmons must
demonstrate cause to overcome this procedural bar by showing
that appellate counsel rendered ineffective assistance under Strick-
land when he failed to argue on appeal that the state trial court co-
erced the verdict by its comments and instructions to the jury.
We conclude from the record that the district court cor-
rectly denied Simmons habeas relief because Simmons failed to
show that his appellate counsel was deficient or that any deficiency
was prejudicial to his fair trial rights. Consequently, Simmons failed
to show cause to overcome the procedural default of his underly-
ing claim that the trial court’s conduct violated his constitutional
rights. Simmons has not established cause to overcome the proce-
dural bar because the record demonstrates that his appellate coun-
sel did not act unreasonably by failing to raise the claim on direct
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12 Opinion of the Court 20-12075
appeal, as the state trial court’s comments and instructions did not
coerce the jury’s verdict, under applicable federal law. Accordingly,
based on the aforementioned reasons, we affirm the district court’s
order denying Simmons relief on his § 2254 habeas petition.
AFFIRMED.