[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11544 ELEVENTH CIRCUIT
DECEMBER 4, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-01364-CV-T-27-TGW
KONSTANTY O. SABILLO,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 4, 2009)
Before TJOFLAT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Konstanty Sabillo, a Florida prisoner, appeals the denial of his petition for a
writ of habeas corpus. 28 U.S.C. § 2254. We granted a certificate of appealability
to resolve two issues: (1) whether Sabillo was denied his right to due process when
the jury was not read an instruction about third degree murder as a lesser-included
offense of Sabillo’s charge of first degree murder; and (2) whether Sabillo’s trial
counsel was ineffective for failing to request an instruction on third degree murder.
We affirm.
I. BACKGROUND
Sabillo was arrested and indicted for the first degree murder of Geri Duke.
Evidence at trial established that Sabillo, a physician, had a romantic relationship
with Duke. Sabillo became upset and said he was going to kill someone after he
learned that Duke’s former husband planned to move back to Duke’s apartment
complex. Sabillo stabbed Duke six times in her neck, cutting her vertebral artery
and fracturing a portion of her seventh cervical vertebrae. Duke called 911, and
the emergency service recorded Duke’s plea for assistance and the attack that
followed. A police officer discovered Sabillo inside Duke’s apartment, where
Duke was lying in a pool of blood. Duke told the officer that Sabillo had stabbed
her, and Duke died later of exsanguination. An autopsy revealed, in addition to the
stab wounds, six defensive wounds on Duke’s left hand.
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Sabillo testified that he did not hurt or intend to kill Duke. Sabillo stated
that he was at Duke’s apartment to celebrate her birthday and she was very
intoxicated. According to Sabillo, Duke wanted to drive her car, and when Sabillo
told her she could not leave her apartment, Duke called the police on her cordless
telephone and cut Sabillo on the hand with a knife he had used to cut Duke’s
birthday cake. When Duke lunged to stab Sabillo a second time, he struggled to
gain control of the knife, he noticed that Duke was bleeding profusely from a large
cut on the left side of her collarbone, and he blacked out. After Sabillo regained
consciousness, he started to administer medical assistance, and Duke screamed for
Sabillo to get off her. Sabillo told the 911 operator that he did not stab Duke, but
he felt responsible for pushing her hand into her neck.
During a charge conference, the trial court stated that it was going to omit
from its charge an instruction about third degree murder, and Sabillo did not
object. When the trial court asked Sabillo at the end of the conference if he
requested any instructions, Sabillo responded negatively. The trial court instructed
the jury about first degree murder and, as lesser-included offenses, second degree
murder, manslaughter, and aggravated battery. Sabillo did not object to the
instructions.
The jury convicted Sabillo of second degree murder, and the trial court
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sentenced Sabillo to 25 years of imprisonment. Sabillo appealed his conviction,
and a Florida appellate court affirmed his conviction without opinion.
Sabillo filed pro se a petition for a writ of habeas corpus in a Florida court.
See Fla. R. Crim. P. 3.850. Sabillo argued that the trial court violated his right to
due process by failing to instruct the jury about third degree murder and his
attorney was ineffective for failing to request the jury instruction. A state court
denied Sabillo’s petition. The court ruled that Sabillo had raised the due process
issue on direct appeal and, in the alternative, “the alleged error did not amount to a
denial of due process and thus, a fundamental error was not committed.” The court
also ruled that Sabillo failed to prove that his attorney was ineffective because
Sabillo was not entitled to an instruction about third degree murder. The district
court explained that, to obtain an instruction about third degree murder, a
defendant had to commit felony murder “in the perpetration of, or in the attempt to
perpetrate, any felony other than” an enumerated underlying felony, one of which
was the “murder of another human being.” Fla. Stat. § 782.04(4) (1999). The
court determined that Sabillo was ineligible for an instruction about third degree
murder because he had murdered Duke. An appellate court affirmed without
opinion.
Sabillo filed a federal habeas corpus petition and repeated his arguments that
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he was denied due process and the effective assistance of counsel. The district
court denied the petition. The district court ruled that “there [was] no evidence to
support a third-degree murder conviction” and Sabillo’s attorney could not be
ineffective for failing to request that instruction.
II. STANDARDS OF REVIEW
We review de novo the denial of a petition for a writ of habeas corpus and
we consider related findings of fact for clear error. McNair v. Campbell, 416 F.3d
1291, 1297 (11th Cir. 2005). An issue of ineffective assistance of appellate
counsel presents a mixed question of law and fact that we review de novo. Id.
Our review is circumscribed by the Antiterrorism and Effective Death
Penalty Act, which “establishes a highly deferential standard for reviewing state
court judgments.” Parker v. Sec’y for the Dep’t of Corr., 331 F.3d 764, 768 (11th
Cir. 2003). A petitioner is entitled to a writ of habeas corpus if the state court
reached a decision that was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). A decision is “contrary to” clearly
established federal law if either the state court reached a conclusion opposite to
that reached by the Supreme Court on a question of law or the state court was
presented with facts that are “materially indistinguishable” from relevant Supreme
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Court precedent, but arrived at a contrary result. Putman v. Head, 168 F.3d 1223,
1241 (11th Cir. 2001). A state court makes an “unreasonable application” of
clearly established federal law if the 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. We presume that the findings of fact by the state court are
correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
III. DISCUSSION
Sabillo challenges the denial of the writ of habeas corpus on two grounds.
First, Sabillo argues that the omission of a jury instruction about third degree
murder violated his right to due process based on the reasoning of the Supreme
Court in Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382 (1980). Second, Sabillo
argues that his trial attorney was ineffective by failing to request the instruction.
The district court correctly denied Sabillo habeas relief.
The decision of the state court that Sabillo was not entitled to an instruction
about third degree murder was not contrary to or an unreasonable application of
federal precedent. Sabillo argues that due process required that he receive a lesser-
included instruction, but the Supreme Court has never addressed “whether the Due
Process Clause would require the giving of such instructions in a noncapital case.”
Beck v. Alabama, 447 U.S. 625, 635, 100 S. Ct. 2382, 2389 (1980). The Court has
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since suggested that it would not extend its reasoning in Beck. See Howell v.
Mississippi, 543 U.S. 440, 444–45, 125 S. Ct. 856, 859 (2005) (“The Mississippi
Supreme Court . . . holds that [Beck is] inapplicable where the jury has the
additional option of life imprisonment—a conclusion that finds some support in
our cases, see Hopkins v. Reeves, 524 U.S. 88, 98, 118 S. Ct. 1895 . . . (1998);
Schad v. Arizona, 501 U.S. 624, 646, 111 S. Ct. 2491 . . . (1991).” (citation and
quotations omitted)).
Sabillo also has not established that the decision of the state courts to deny
his ineffectiveness argument is contrary to or an unreasonable application of
Strickland v. Washington,466 U.S. 668, 104 S. Ct. 2052 (1984). The state courts
concluded that Sabillo was not entitled to an instruction about third degree murder
based on the evidence at trial, and we defer to that conclusion. See Callahan v.
Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (“‘It is a fundamental principle that
state courts are the final arbiters of state law, and federal habeas courts should not
second-guess them on such matters.’ ” (quoting Herring v. Sec’y, Dep’t of Corr.,
397 F.3d 1338, 1355 (11th Cir. 2005)). We will not fault counsel for failing to
request a jury instruction to which Sabillo was not entitled. See Strickland,466
U.S. at 692–94, 104 S. Ct. at 2067–68.
The denial of Sabillo’s petition is AFFIRMED.
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