[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 12, 2007
No. 06-15397 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-60764-CV-WPD
JOSEPH C. MAGNOTTI,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 12, 2007)
Before DUBINA, CARNES and FAY, Circuit Judges.
PER CURIAM:
Joseph C. Magnotti, a Florida prisoner serving a 25-year sentence for
robbery, appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habeas
corpus petition. The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-32, 110 Stat. 1214 (1996), governs this appeal because
Magnotti filed his § 2254 petition after the effective date of the AEDPA. The
district court granted a certificate of appealability (“COA”) as to the following two
issues: (1) whether sufficient evidence supported Magnotti’s conviction; and
(2) whether Magnotti received ineffective assistance of his trial counsel. For the
reasons set forth more fully below, we affirm.
Magnotti filed a 28 U.S.C. § 2254 petition in the district court alleging that
the evidence was insufficient to support his conviction and that he received
ineffective assistance of his trial counsel.1 With regard to his ineffective-
assistance-of-counsel claim, Magnotti asserted that his trial counsel was ineffective
for failing to request jury instructions on the lesser included offenses of theft and
attempted robbery, and for requesting instructions on the lesser included offense of
robbery by sudden snatching, where the evidence supporting the robbery charge
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Magnotti raised two separate claims of ineffective assistance of trial counsel: (1) counsel
failed to request jury instructions on lesser included offenses; and (2) counsel failed to object to
the prosecutor’s improper arguments. The district court granted a COA only as to Magnotti’s
argument that his counsel was ineffective for failing to request jury instructions on lesser
included offenses. Accordingly, Magnotti’s remaining claim of ineffective assistance is not
presently before this Court.
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was not overwhelming. The state opposed Magnotti’s § 2254 petition and attached
relevant portions of the state court record, which set forth the following procedural
and factual history.
At Magnotti’s trial, Sally Wood testified as the state’s first witness. Wood
testified that, on July 13, 2001, she had been working as a bank teller for
approximately one and one half months. As part of her training for her bank teller
job, she was instructed that, if the bank was robbed, she should do exactly what the
robber asked and, after the robbery was over, she should write down all the details
and not talk to anyone. At approximately 3:30 on a busy Friday afternoon at the
bank, Wood called the next customer in line to her window. Magnotti walked up
to Wood’s window and said, “[t]his is a hold-up, I want your hundreds, fifties and
twenties, now.” Magnotti did not display a weapon. Wood began to put money up
on her counter and she felt “[e]xtremely upset, nervous, afraid.” Wood stated that,
because there was a very thick wall between herself and Magnotti, she knew that
he could not get to her, but that she “was deathly afraid.” Wood then gave
Magnotti the money and he left the bank. Wood next went to the back room of the
bank and wrote down her description of Magnotti.
On cross-examination, Wood testified that she did not think any person
could get to her through the glass that separated her from the customers and that
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Magnotti did not yell or make any threats. She further stated that she “was not in
fear of death, but [she] was deathly scared, the mere fact of somebody coming up
and demanding money.” Wood stated that she knew she could not be hurt because
of the wall between her and Magnotti. On re-direct, Wood testified that she did not
see a weapon, but that she had no idea whether Magnotti had a weapon or not. She
further stated that she was scared to death and she was in fear.
Magnotti elected not to testify in his own defense, nor did he provide any
defense witnesses. Magnotti moved for judgment of acquittal, arguing that the
evidence did not support the charge of robbery. The district court denied the
motion. Magnotti’s counsel then requested that the court instruct the jury on the
lesser included offense of robbery by sudden snatching, but declined to request
instructions on any other lesser included offenses. The trial court next gave the
jury charge, instructing the jury that, if it found that the state had not proved the
elements of robbery beyond a reasonable doubt, that it would have to decide if the
state proved the elements of the lesser included offense of robbery by sudden
snatching. The jury found Magnotti guilty of robbery as charged in the
information. Thereafter, the trial court sentenced Magnotti to 25 years’
imprisonment.
Magnotti appealed his conviction and sentence to the Fourth District Court
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of Appeal of Florida, arguing that the trial court had erred in denying his motions
for acquittal and a new trial on the grounds that the evidence presented at trial did
not establish beyond a reasonable doubt that Wood would have been in fear of
great bodily injury or death, as was required by the robbery statute. The state
appellate court affirmed Magnotti’s conviction and sentence. In so doing, the state
court cited Florida’s robbery statute, Fla. Stat. § 812.13(1). The court found that
the “fear” contemplated by the robbery statute would be established “if the
circumstances attendant to the robbery were such as to ordinarily induce fear in the
mind of a reasonable person,” regardless of the actual state of mind of the victim.
The court then concluded that, in Magnotti’s case, the victim testified that she was
afraid and, moreover, the circumstances were such that the jury could conclude that
the victim would have had fear of death or great bodily harm because:
(1) Magnotti’s use of the phrase “hold-up” connoted a forcible robbery; (2) an
ordinary person in Wood’s place would have feared that Magnotti had a weapon
that he would have used to get the money; and (3) the glass between Magnotti and
Wood would not have sufficed to remove the fear of an ordinary person in Wood’s
position. The court thereafter denied Magnotti’s motion for rehearing and mandate
issued on May 23, 2003. On September 5, 2003, the Florida Supreme Court
declined to exercise its discretionary jurisdiction.
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Magnotti then petitioned for post-conviction relief pursuant to Fla.R.Crim.P.
3.850, arguing, among other things, that his trial counsel was ineffective for
requesting the jury instruction on robbery by sudden snatching and for failing to
request jury instructions on the lesser included offense of petit theft. The state
responded that Magnotti had not demonstrated that he suffered prejudice, as
required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), because the evidence overwhelmingly established that
Magnotti committed robbery and, further, that there was no reasonable probability
that the jury would have convicted him of a lesser offense. The state court denied
Magnotti’s Rule 3.850 motion for the reasons indicated in the state’s response.
Magnotti appealed the denial of his Rule 3.850 motion to the state appellate court,
and the court denied the motion without opinion. After the state appellate court
denied Magnotti’s motions for certification and rehearing, mandate issued on
March 10, 2006.
Based upon the above-detailed record, the district court denied Magnotti’s
§ 2254 petition. Magnotti moved for a COA, which the district court granted on
these two issues only: (1) whether there was sufficient evidence to support
Magnotti’s robbery conviction; and (2) whether Magnotti’s counsel was ineffective
for failing to request jury instructions on lesser included offenses.
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We review a district court’s grant or denial of a § 2254 petition de novo,
while the court’s factual findings are reviewed for clear error. See Sims v.
Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). Mixed questions of law and
fact, including ineffective assistance of counsel claims, are reviewed de novo. Id.
As amended by the AEDPA, 28 U.S.C. § 2254(d) forbids federal courts
from granting habeas relief on claims that were previously adjudicated in state
court, unless the adjudication was (1) “contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the United States
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). 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.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). An
“unreasonable application” of clearly established federal law may occur if the state
court “identifies the correct legal rule from Supreme Court case law but
unreasonably applies that rule to the facts of the petitioner’s case.” Id. “An
unreasonable application may also occur if a state court unreasonably extends, or
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unreasonably declines to extend, a legal principle from Supreme Court case law to
a new context.” Id.
Moreover, a state court’s factual findings are presumed correct, and the
petitioner can rebut them only by clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1). As such, for a state court’s adjudication to result in an unreasonable
determination of the facts in light of the evidence presented, “[n]ot only must the
factual determination have been unreasonable, but the state court’s factual findings
must be shown unreasonable by clear and convincing evidence.” Callahan v.
Campbell, 427 F.3d 897, 926 (11th Cir. 2005), cert. denied, 127 S.Ct. 427 (2006).
A. Sufficiency of the Evidence
Magnotti argues on appeal that, pursuant to the Florida robbery statute and
case law cited by the state appellate court, the state had to prove that Wood had
fear of death or great bodily harm from his actions. Magnotti maintains that a
finding that a reasonable person would have been objectively afraid is unsupported
by the evidence because: (1) Wood testified that she was not in fear of death or
bodily harm; (2) there was a secure barrier between Wood and Magnotti; (3) the
bank’s procedures required Wood not to resist Magnotti’s demands; (4) Magnotti
did not have a weapon; and (5) Magnotti did not make any threats or loud, sudden
movements. He further argues that even a subjective fear of death or bodily injury
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was not present in his case in light of Wood’s testimony. He also asserts that the
state court’s reliance on certain state precedent was contrary to established
Supreme Court precedent.
In Jackson v. Virginia, the Supreme Court held that, when reviewing the
sufficiency of the evidence, the “critical inquiry” is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89 (emphasis in original). The
Supreme Court noted that it is the duty of the trier of fact “to resolve conflicts in
the testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts,” and a reviewing court may not substitute its judgment as to
whether it believes the evidence to be sufficient to sustain a conviction. Id.
In Florida, the offense of robbery is defined as:
the taking of money or other property which may be the subject of
larceny from the person or custody of another, with intent to either
permanently or temporarily deprive the person or the owner of the
money or other property, when in the course of the taking there is the
use of force, violence, assault, or putting in fear.
Fla. Stat. § 812.13(1).
Here, to the extent that Magnotti argues that the sufficiency-of-the-evidence
standard used by the state appellate court was contrary to, or an unreasonable
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application of, clearly established federal law, his argument is without merit. It is
noteworthy that the state court did not cite Jackson in reviewing Magnotti’s
sufficiency-of-the-evidence challenge. Nonetheless, Magnotti does not point out
any part of the state court’s decision that was contrary to Jackson, and the record
establishes that the state court considered the evidence in the light most favorable
to the state, cited the relevant state law, and did not re-weigh the evidence. See
Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89; see also Early v. Packer, 537
U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002) (holding that a state court
does not have to cite to Supreme Court “cases–indeed, [§2254(d)] does not even
require awareness of [its] cases, so long as neither the reasoning nor the result of
the state-court decision contradicts them”).
As to the question of whether there was sufficient evidence to support the
“putting in fear” element of Magnotti’s robbery conviction, the state court
determined that its precedent required a showing that the robbery would have
“ordinarily induced fear in the mind of a reasonable person.” See State v. Baldwin,
709 So.2d 636, 637 (Fla. Dist. Ct. App. 1998). According to Baldwin, the state
does not have to prove that the defendant’s conduct was itself threatening or
forceful, but only that “the conduct would induce fear in the mind of a reasonable
person notwithstanding that the conduct is not expressly threatening.” Baldwin,
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709 So.2d at 637-38. Magnotti does not contend that the Baldwin standard is not
the proper standard for determining whether he put Wood in fear during the
incident. Rather, he argues that the evidence established that Wood had no fear.
The evidence presented at trial demonstrated that Magnotti walked into a bank,
stated that it was a “hold-up,” and demanded money. Moreover, Wood testified
that she was “deathly afraid” during the robbery as she placed the money on the
counter. Such evidence was sufficient to establish that Magnotti’s conduct would
have induced fear in the mind of a reasonable person, notwithstanding Magnotti’s
argument that his conduct was not expressly threatening. See Baldwin, 709 So.2d
at 637-38. Thus, the state court’s analysis was not contrary to, and did not involve
an unreasonable application of, clearly established federal law. Accordingly, the
district court did not err in denying Magnotti’s § 2254 petition as to his
insufficiency-of-the-evidence claim.
B. Assistance of Counsel
Magnotti argues that his counsel was deficient in requesting a jury
instruction on the offense of robbery by sudden snatching because that offense was
not actually a lesser included offense to robbery and, further, was not supported by
the evidence from his trial. He further argues that, in light of the facts of his case,
his counsel should have requested jury instructions on simple theft, grand theft,
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and attempted robbery. Magnotti contends that his counsel’s decision to not
request instructions on other offenses was not entitled to deference because, as the
district court noted, it was an inexplicable decision. He also asserts that he
suffered prejudice as a result of his counsel’s decisions because the evidence left
the jury with nothing to debate as to his guilt on the robbery charge and, because
his counsel did not request instructions on lesser included offenses, the jury had no
alternative offense for which to convict him. Magnotti lastly argues that the state
court and district court erred in denying his request for an evidentiary hearing on
the issue of his counsel’s ineffective assistance.
The Sixth Amendment provides that a criminal defendant shall have the
right to “the assistance of counsel for his defense.” U.S. Const. amend. VI. 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. Reviewing courts must be
highly deferential in reviewing a counsel’s performance, and must utilize the
strong presumption that counsel’s performance was reasonable. Chandler v.
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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 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. “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id.
In Magnotti’s case, the state court decision was not contrary to, or an
unreasonable application of, clearly established federal law. First, while the state
court decision denying Magnotti’s ineffective-assistance-of-counsel claim did not
directly cite Strickland, the court nonetheless denied the claim for the reasons
indicated in the state’s response to Magnotti’s Rule 3.850 motion, which explicitly
relied upon Strickland. Thus, the state court correctly identified Strickland as the
controlling law and properly applied it to Magnotti’s ineffective-assistance-of-
counsel claim. See Robinson v. Moore, 300 F.3d 1320, 1343 (11th Cir. 2002)
(holding that, “[i]t 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”) (quotation omitted).
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Moreover, the state court did not unreasonably apply the law from
Strickland to the facts of Magnotti’s case. Here, the state court and the district
court determined that Magnotti failed to establish that he suffered prejudice as a
result of his counsel’s decisions. As discussed in issue one above, the evidence
presented at Magnotti’s trial was sufficient to sustain a conviction for robbery. As
such, even assuming without deciding that Magnotti’s counsel was deficient in
failing to request jury instructions on other lesser included offenses, that deficiency
does not suggest that there was a reasonable probability that the outcome would
have been different because the jury had sufficient evidence to find Magnotti guilty
of the greater offense of robbery. See Strickland, 466 U.S. at 694-94, 104 S.Ct. at
2068 (explaining that a reviewing court should presume that the jury acted
according to law). Therefore, Magnotti’s argument, that the jury would have
convicted him of a lesser offense had it been given the instructions on such an
offense, is not conclusive where the jury properly convicted him of robbery based
upon the evidence presented at trial. Furthermore, the jury would have performed
its duties in violation of the law had it convicted Magnotti of a lesser offense in the
face of sufficient evidence for the greater offense. See id. (holding that “[a]
defendant has no entitlement to the luck of a lawless decisionmaker, even if a
lawless decision cannot be reviewed. The assessment of prejudice should proceed
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on the assumption that the decisionmaker is reasonably, conscientiously, and
impartially applying the standards that govern the decision. It should not depend
on the idiosyncracies of the particular decisionmaker, such as unusual propensities
toward harshness or leniency”). Similarly, Magnotti’s counsel’s request for
instructions on the lesser offense of robbery by sudden snatching did not prejudice
Magnotti because the jury found Magnotti guilty of robbery based upon sufficient
evidence in the record. Accordingly, the district court properly denied Magnotti’s
§ 2254 petition as to his ineffective-assistance-of-counsel claim because he failed
to show that he suffered prejudice as a result of his counsel’s decisions.
Magnotti has not met his burden under 28 U.S.C. § 2254(d). In light of the
foregoing, the district court’s denial of Magnotti’s § 2254 petition is
AFFIRMED.
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