[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-11941 FEB 15, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:07-cv-00161-MSS-KRS
ALFONSO JOSE ALZAMORA,
lllllllllllllllllllll Petitioner - Appellant,
versus
SECRETARY DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
lllllllllllllllllllll Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 15, 2012)
Before TJOFLAT and BARKETT, Circuit Judges, and SMOAK,* District Judge.
*
Honorable Richard Smoak, United States District Judge for the Northern District of
Florida, sitting by designation.
PER CURIAM:
Alfonso Jose Alzamora appeals the district court’s dismissal of his petition
for habeas relief, filed pursuant to 28 U.S.C. § 2254, and argues that the district
court erred when it determined that the Florida Supreme Court’s decision
upholding his conviction did not involve an unreasonable application of Supreme
Court precedent under AEDPA. Specifically, the district court granted Alzamora a
certificate of appealability on whether due process requires the retroactive
application of the Florida Supreme Court’s decision in Thompson v. State, 695
So.2d 691 (Fla. 1997), which held that knowledge of a victim’s status as a police
officer was a necessary element of the offense of attempted murder of a police
officer in Florida, of which Alzamora was convicted. Alzamora argues that the
state court’s failure to apply Thompson retroactively is an unreasonable
application of the United States Supreme Court’s decision in Fiore v. White, 121
S.Ct. 712 (2001), which involved a similar issue of whether a state court’s
interpretation of its own statute to require an additional element of proof should
apply retroactively.
I. Standard of review under AEDPA
Under 28 U.S.C. § 2254(d), a federal court cannot grant habeas relief from a
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state court judgment unless the state court’s decision on the merits of the issue was
(1) contrary to, or an unreasonable application of, clearly established federal law
as determined by the U.S. 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); Powell v. Allen, 602 F.3d 1263, 1268-69 (11th
Cir. 2010), cert. denied, (U.S. Jan. 18, 2011) (No. 10-7039). This Court reviews
de novo the district court’s decision about whether the state court acted contrary to
or unreasonably applied clearly established federal law, or made an unreasonable
determination of fact, but this Court owes deference to the state court’s final
habeas judgment. Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1239 (11th
Cir.), cert. denied, 131 S.Ct. 177 (2010).
II. Discussion
Alzamora argues that at his trial he was entitled to a jury instruction
explaining that knowledge of the victim’s status as a law enforcement officer was
an essential element of the crime charged. We need not reach this question
because we conclude that the failure to give this instruction, under the facts of this
case, constituted harmless error, and, therefore, he is not entitled to relief from this
Court. See, e.g., Neder v. United States, 527 U.S. 1, 15 (1999) (“The omission of
an element from the jury instructions is subject to harmless-error analysis.”); see
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also Agan v. Vaughn, 119 F.3d 1538, 1545 (11th Cir. 1997) (“A defendant’s right
to due process is not violated unless an erroneous instruction, when viewed in
light of the entire trial, was so misleading as to make the trial unfair.”). We look
to the trial record to determine whether the trial judge’s failure to instruct the jury
as to the knowledge element of attempted felony-murder of a police officer
rendered the trial unfair.
That record reflects overwhelming evidence that Alzamora knew that the
victim was a police officer. The victim, Detective Ron Johnson testified at trial
that he was a member of the arrest team during the sting operation to arrest
Alzamora. He testified that when he approached Alzamora’s car from the driver’s
side, he was wearing “a black flap jacket which looks like a ski jacket with the
word ‘police’ on the front and back.” This jacket was admitted as evidence, and
Agent Johnson put it on to show the jurors. Agent Johnson further testified that
Alzamora looked at him while the “takedown” was in progress, and that when he
opened Alzamora’s car door, he was yelling “police.” At this point Alzamora
started his car, dragging Detective Johnson to the ground. The door or another
part of the car hit Johnson in the head, injuring him severely.
Likewise, Officer Lanferseik, another member of the sting operation,
testified that as Detective Johnson approached Alzamora’s car from the side, he
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heard Johnson shout, “Police! You’re under arrest!” while he attempted to open
Alzamora’s car door. Agent Johnson and Agent Lanferseik both testified that
Agent Johnson and other agents were yelling “police” and “policia” during the
incident. A government informant who was also at the scene testified that he
heard the agents shout “police.” Further, Agent Johnson stated that it was his
practice to yell the word “police” while doing this type of “takedown.”
Based on these facts, we conclude that the weight of the evidence shows
that the jury would likely have found that Alzamora knew his victim was a police
officer at the time of the offense. The failure to so instruct was therefore harmless
error, and Alzamora is not entitled to relief.
AFFIRMED.
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