[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10902 MARCH 23, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 8:05-cv-01964-VMC-EAJ
LARRY W. ARGO,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
llllllllllllllllllllllllllllllllllllllll Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 23, 2012)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Larry Argo, a Florida state prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2254 petition for habeas corpus. We granted a
certificate of appealability (COA) on a single issue:
Whether the district court erred by finding that the state court’s denial
of Argo’s claim–that his trial counsel was ineffective for failing to
correctly advise Argo, the prosecution, and the court that he was
being charged with a second degree felony, not a first degree felony
as listed in the indictment–was not contrary to, or an unreasonable
application of, federal law or based on an unreasonable determination
of the facts.
After a thorough review of the record, we affirm.
I. Argo’s state conviction
On October 4, 2000, Argo was charged by Information with attempted
robbery with a deadly weapon (a knife) and driving with a suspended license.1
The Information incorrectly listed the robbery offense as a first-degree felony and
cited Fla. Stat. Ann. §§ 812.13(2)(a) and 777.04.2
1
Argo’s conviction for driving with a suspended license is not at issue in this appeal, and
thus we do not discuss it further.
2
Subsection (2)(a) of § 812.13 covers robbery with a deadly weapon and identifies this
crime as a first-degree felony subject to life imprisonment. Subsection (2)(b) covers robbery
with a weapon and identifies this crime as a first-degree felony. Subsection (2)(c) covers robbery
without the use of a weapon and identifies this crime as a second-degree felony. Section 777.04
is the statute for attempt crimes and provides that an attempt to commit a first-degree felony is
classified as a second-degree felony.
2
At trial, the victim testified that Argo displayed a switch-blade type knife
during the robbery. The court instructed the jury that
[i]f you find that the defendant carried a knife . . . and that the knife
was a deadly weapon, you should find him guilty of attempted
robbery with a deadly weapon. If you find that the defendant carried
a weapon that was not a deadly weapon, you should find him guilty of
attempted robbery with a weapon. If you find that the defendant
carried no weapon . . . but did commit the robbery, you should find
him guilty of only attempted robbery.
The jury convicted Argo of attempted robbery with a weapon, which was a
lesser-included offense to the charged offense of attempted robbery with a deadly
weapon. The court sentenced Argo to the mandatory minimum sentence of fifteen
years’ imprisonment.
Argo’s conviction was affirmed on direct appeal. Argo then filed a state
habeas petition alleging ineffective assistance of counsel. The claim was denied
without discussion. Thereafter, Argo filed state motions for post-conviction relief
under Florida Rule of Criminal Procedure 3.850 and 3.800(a), both of which were
denied. Argo filed a second Rule 3.850 motion in which he argued that the
offense for which he was charged in the Information was a second-degree felony,
and not a first-degree felony as his counsel had advised him. Argo explained that
he learned of the error when he obtained a correct copy of his Information in 2004.
Based on this information, Argo claimed that counsel was ineffective for failing to
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(1) recognize that the charged offense was a second-degree felony; (2) properly
advise Argo of the crime for which he had been charged; and (3) ensure the jury
instructions cited the correct lesser-included offenses.
The state court conducted an evidentiary hearing at which Argo and his
former counsel, Bruce Johnson, testified. Johnson stated that, at the time of
Argo’s trial, the parties and the court understood Argo’s offense to be a first-
degree felony, which carried a thirty-year sentence, and the Information had
identified the offense as a first-degree felony. He noted that the state offered Argo
a plea deal in exchange for a fifteen-year sentence. Johnson could not say what, if
any, plea deal there would have been had the parties understood the offense was
actually a second-degree felony. At some point after the trial, the Information was
amended to reflect that the charge was actually a second-degree felony. Johnson
stated that the degree of the offense had no impact on his preparation for trial or
his strategy.
Argo testified that he specifically asked Johnson about the offense and the
difference between first- and second-degree charges. He explained that the
fifteen-year plea deal the state had offered him seemed too severe, so he did not
accept it. He also had not believed that the state could prove that the pocket knife
he had used during the robbery was a deadly weapon, and therefore, he had not
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wanted to enter into a plea deal. But Argo stated that, had everyone understood
the offense was a second-degree felony, he would have accepted a deal if the offer
was less than fifteen years’ imprisonment.
The state court denied relief, finding that Argo had not shown a reasonable
probability that the outcome of the proceedings would have been different had
Johnson properly understood the offense to be a second-degree felony.
Specifically, the court stated that there was no evidence that the state would have
offered a plea deal of less than fifteen years, and it was speculation that Argo
would have accepted any such deal. Addressing counsel’s failure to object to the
inclusion of an improper lesser-included offense, the court found that the offense
of attempted robbery with a weapon was a necessary-included offense of
attempted robbery with a deadly weapon. But, although the court agreed that a
challenge to the jury instruction and verdict form would have been proper, the
court nevertheless concluded that Argo could not show either that counsel’s
performance was deficient or that Argo was prejudiced because he was, in fact,
acquitted of the charged offense. The court found no evidence that Argo would
have been convicted of armed robbery had such a crime been included on the
verdict form as the lesser-included offense. The court further noted that Argo’s
status as a repeat offender subjected him to a mandatory fifteen-year term, and that
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the state’s initial intent to seek an enhanced penalty made it less likely it would
have offered a plea deal with a lower sentence. Accordingly, the state court
denied relief.
Argo appealed, and a state district court of appeals affirmed without
discussion. Argo then filed the instant federal habeas petition.
II. Argo’s § 2254 petition3
In his petition, Argo alleged, among other claims, ineffective assistance of
counsel based on counsel’s failure to ascertain that the charged offense, attempted
robbery with a deadly weapon, was not a first-degree felony. The state responded
that Argo was correctly charged under the relevant statute, and that he has not
shown prejudice from counsel’s alleged acts.
The district court determined that the state court’s conclusion that Argo did
not show prejudice was reasonable and entitled to deference. The district court
denied Argo’s request for a COA; we then granted a COA on a single ineffective-
assistance claim.
III. Argo’s appeal
Argo argues that he suffered prejudice because, had the verdict form not
3
Argo’s original § 2254 petition was stayed pending his return to state court to exhaust
certain claims. After his case was reopened, Argo filed an amended § 2254 petition. It is this
amended petition that we consider.
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included attempted robbery with a weapon as a lesser-included offense, the jury
would have necessarily convicted him of the lesser-included offense of attempted
robbery, a third-degree felony. Argo also asserts that, had counsel recognized and
communicated Argo’s proper sentencing exposure, the state would have made a
more favorable plea offer, which he would have accepted. Argo contends that the
state court held his attempts to prove prejudice to a standard of certainty, rather
than the proper reasonable probability standard. Alternatively, Argo contends that
his counsel’s ineffectiveness was tantamount to constructive denial of counsel,
and because no counsel could have provided effective assistance without a correct
understanding of the possible penalties, he is entitled to a presumption of
prejudice.
We review de novo a district court’s denial of a § 2254 petition. McNair v.
Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Our review of the state court’s
judgment is highly deferential, and we may only grant habeas corpus relief if the
state court’s determination of a federal claim was (1) contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the
U.S. Supreme Court; or (2) based upon an unreasonable determination of the facts
in light of the evidence presented at the state court proceedings. 28 U.S.C.
§ 2254(d); McGahee v. Ala. Dep’t of Corr., 560 F.3d 1252, 1255 (11th Cir. 2009).
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We presume the state court’s determination of the facts is correct, and the
petitioner bears the burden of rebutting this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
A state court decision is contrary to the U.S. Supreme Court’s clearly
established precedent if the state court applies a rule that contradicts the governing
law as set forth in the U.S. Supreme Court’s cases. Atwater v. Crosby, 451 F.3d
799, 804 (11th Cir. 2006). The “unreasonable application” clause will permit us to
grant relief if the state court identifies the correct legal principle, but unreasonably
applies it to the facts of the case. McGahee, 560 F.3d at 1256. In determining
unreasonableness, we do not ask whether the state court decided an issue
correctly, but only whether the court’s decision was objectively unreasonable.
Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1256 (11th Cir. 2002).
To succeed on a claim of ineffective assistance of counsel, a petitioner must
show both that his counsel’s performance was deficient and that this deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). To establish deficient performance, a defendant must show that counsel
acted unreasonably in light of prevailing professional norms. Id. at 688. To
establish prejudice, the defendant must show a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
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different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. at 694. If the defendant cannot satisfy the
prejudice prong, we need not address the deficient performance prong, and vice
versa. Id. at 697. We have held that counsel’s affirmative misadvice can
constitute ineffective assistance. Bauder v. Dept. of Corr., Fla., 619 F.3d 1272,
1274-75 (11th Cir. 2010).
Here, the district court afforded the proper deference to the state court’s
conclusions and we affirm the denial of habeas relief. Argo does not argue that
the state court identified the wrong legal principle; therefore, the only question is
whether the state court’s application of Strickland in this case was unreasonable.
McGahee, 560 F.3d at 1256.
The state court concluded that Argo did not suffer prejudice at the plea
bargaining stage. Argo has failed to demonstrate that this conclusion was
objectively unreasonable. Johnson testified that the error with regard to the felony
level did not affect his preparation or strategy. See Strickland, 466 U.S. at 694.
Although it is possible that the state would have offered a plea deal with a lower
sentence had all parties been properly apprised of the correct felony level, Argo
has offered only speculation to suggest that such an offer would have been
forthcoming. Such speculation is insufficient to demonstrate that the state court’s
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conclusions were unreasonable. Similarly, the state court reasonably concluded
that Argo’s after-the-fact assertion that he would have accepted a lower offer was
speculative and was belied by his testimony that he decided to proceed to trial
because he did not believe the state could prove its case. Nothing in the record
indicates that the state court held Argo to a standard higher than reasonable
probability in his attempt to prove that the result of the proceeding would have
been different but for his counsel’s error. See id.
Moreover, regarding the jury instruction and verdict form, Argo failed to
show that he suffered prejudice. The state court concluded that it was pure
speculation that the jury would have convicted Argo of the lesser-included offense
of armed robbery. This finding is objectively reasonable, and therefore the district
court did not err in according it deference. See Wright, 278 F.3d at 1256.
Finally, Argo has also failed to establish that a presumption of prejudice
was appropriate. In a case decided the same day as Strickland, the Supreme Court
held that, in certain limited situations, a defendant may establish a violation of a
right to effective assistance of counsel without having to prove prejudice. Cronic,
466 U.S. 648, 658-60 (1984). This presumption of prejudice would generally
apply in four situations: (1) when the defendant is completely denied counsel;
(2) when counsel is denied during a critical stage of the proceeding; (3) when
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counsel entirely fails to subject the prosecution’s case to meaningful adversarial
testing; and (4) when no competent lawyer, even if available, could likely provide
adequate representation. Id.; Conklin v. Schofield, 366 F.3d 1191, 1201 (11th Cir.
2004). Argo has failed to demonstrate that his case is one of the rare instances in
which no counsel could have provided effective assistance. Given Johnson’s
testimony that the error with regard to the felony level did not affect his trial
preparation and strategy, this is not such a case.
AFFIRMED.
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