[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-15277 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 22, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-24322-MGC
MOISES E. BURE,
Petitioner-Appellant,
versus
STATE OF FLORIDA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 22, 2012)
Before TJOFLAT, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
On June 10, 2008, in the Circuit Court for Miami-Dade County, Florida, a
jury found Moises E. Bure guilty of Unlawful Driving as a Habitual Traffic
Offender, a felony of the third degree, see Fla. Stat. § 322.34(5), and, on
December 11, 2008, the Circuit Court sentenced him to prison for 10 years, with a
five-year mandatory sentence as an habitual offender. See Fla. Stat. § 775.084(4).
He appealed his conviction and sentence, and the District Court of Appeal
affirmed. Bure v. State, 50 So.3d 1145 (Fla. App. 3d Dist. 2010). He is before
this court on an appeal of an order of the United States District Court for the
Southern District of Florida denying his petition for writ of habeas corpus. See 28
U.S.C. § 2254. The District Court granted a certificate of appealability (“COA”)
on three issues: (1) whether Bure’s “conviction is the result of prosecutorial
misconduct in that the prosecutor made improper remarks during closing
argument”; (2) whether “the State failed to provide [Bure] with adequate
discovery”; and (3) whether “the trial court improperly permitted [Bure] to
proceed pro se at trial and sentencing.”
I.
The federal habeas corpus statute, 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and as
interpreted by the United States Supreme Court, limits the power of a federal court
to grant a writ of habeas corpus vacating the conviction of a state prisoner on the
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ground that the conviction was obtained in violation of the Constitution of the
United States. First, a writ may not issue unless, with certain exceptions, the
prisoner has exhausted his state remedies. See 28 U.S. C. § 2254(b), (c); Cullin v.
Pinholster, ___ U.S. ____, 131 S. Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). The
prisoner exhausts his state remedies by presenting his constitutional claim to the
State courts, to afford them an opportunity to correct any error that may have
occurred. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d
865 (1995). If the prisoner has done this, and the State courts “adjudicated” his
claim “on the merits,” the writ
shall not be granted . . . unless the adjudication . . .
(1) resulted in 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; or
(2) resulted in a decision that was 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).
The statutory phrase “clearly established Federal law” refers only to “the
holdings, as opposed to the dicta,” of the Supreme Court decisions extant at the
time of the State court adjudication. Williams v. Taylor, 529 U.S. 362, 412, 120 S.
Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). A State court decision is “contrary to”
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a Supreme Court holding “if the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the state court decides a
case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Id. at 412–13, 120 S. Ct. at 1523.1 A State court decision
involves an unreasonable application of a Supreme Court holding if the State court
correctly identifies the holding but unreasonably applies it to the facts of the
prisoner’s case. Id. at 407, 120 S.Ct. at 1520.
An unreasonable application of a Supreme Court holding is different from
an incorrect application of a Supreme Court holding. Harrington v. Richter, 562
U. S. ____, 131 S. Ct. 770, 785, 178 L. Ed.2d 624 (2011) (quoting Williams, 529
U.S. at 410, 120 S. Ct. at 1522). A federal habeas court might consider the State
court’s application of a Supreme Court holding incorrect were it reviewing the
State court’s decision as an appellate court would on direct appeal. But the habeas
court is not conducting such review. AEDPA, having limited the court’s authority
to grant the writ, precludes the court from issuing the writ even when it “concludes
in its independent judgment that the state-court decision applied [the Supreme
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“When no Supreme Court precedent is on point, . . . a state court’s conclusion cannot be
‘contrary to clearly established Federal law.’” Dombrowski v. Mingo, 543 F.3d 1270, 1274 (11th
Cir. 2008) (quoting Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003).
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Court holding] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 25, 123 S. Ct.
357, 360, 154 L. Ed.2d 279 (2002). “[T]he purpose of AEDPA is to ensure that
federal habeas corpus relief functions as a ‘guard against extreme malfunctions in
the state criminal justice systems,’ and not as a means of error correction.” Greene
v. Fisher, ___ U.S. ___, ___, 132 S. Ct. 38, 43–44, 181 L. Ed.2d 336 (2011)
(quoting Harrington, 562 U.S. at ____, 131 S. Ct. at 786).
Section 2254(d)’s “standard for evaluating state-court rulings [is therefore]
highly deferential”, Woodford, 537 U.S. at 24, 123 S. Ct. at 360, and “difficult to
meet,” Harrington, 562 U.S. at ____, 131 S. Ct. a 786; it “demands that state-court
decisions be given the benefit of the doubt.” Woodford, 537 U.S. at 24, 123 S. Ct.
at 360.2 To obtain habeas relief, a state prisoner must show that “there is no
possibility fairminded jurists could disagree that the state court's decision conflicts
with [the Supreme] Court's precedents . . . ., that the state court's ruling . . . was so
lacking in justification that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at ____, 131 S. Ct. at 786. With these principles in hand, we
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The extent of deference accorded a State court’s decision will depend, in part, on the
specificity of the Supreme Court holding the State court applied. If the holding is specific, the range
of reasonableness may be narrow. If the holding is general, the range of reasonableness may be
broad. Yarrough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149, 158 L. Ed.2d 938 (2004).
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turn to the three issues set out in the COA, considering them in order.
II.
Bure claims that during closing argument, the prosecutor infringed his Fifth
Amendment right to remain silent by improperly commenting on his failure to
testify by reminding the jury that his statements were not evidence.
The Fifth Amendment of the United States Constitution provides that “No
person shall . . . be compelled in any criminal case to be a witness against
himself.” U.S. Const. Amend. V. In United States v. McGarity, we explained
that a prosecutor’s statement is an improper comment on a defendant’s decision to
exercise this right to remain silent if “(1) the statement was manifestly intended to
be a comment on the defendant’s failure to testify; or (2) the statement was of such
a character that a jury would naturally and necessarily take it to be a comment on
the failure of the accused to testify.” 669 F.3d 1218, 1241 (11th Cir. 2012)
(quotations omitted).
In Duncan v. Stynchcombe, 704 F.2d 1213, 1215–16 (11th Cir. 1983), the
prosecutor stated: “There has been no evidence in this case from the defense at all
that [the defendant] Duncan was not in that house on Monday.” Duncan
contended that “the remark was an impermissible reference to his failure to testify,
and that it had the effect of shifting the burden of proof to [him].” We said,
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It appears more likely that the prosecutor was attempting to point out
to the jury the lack of evidence concerning Duncan's whereabouts at
the time of the robbery. A comment on the failure of the defense, as
opposed to that of the defendant, to counter or explain the testimony
presented or evidence introduced is not an infringement of the
defendant's fifth amendment privilege. The prosecutor's comment did
not shift the burden of proof to Duncan, because any possible
prejudice which might otherwise have resulted from the comment was
cured by the court's instructions regarding the burden of proof.
Id. (citations omitted).
In Griffin v. California, the prosecutor, in closing argument to the jury,
discussed the defendant’s failure to testify and told the jury that it could consider
the defendant’s failure to take the stand. The Court held that the comments
violated “the Self-Incrimination Clause of the Fifth Amendment.” 380 U.S. 609,
611-13, 85 S.Ct. 1229, 1231-32, 14 L.Ed.2d 106 (1965).
Bure has not shown that the Florida District Court of Appeal, in rejecting
his argument, rendered a decision that is not entitled to ADEPA deference. Bure
represented himself at trial but did not testify. During closing argument, the
prosecutor explained to the jury that it could consider only the evidence that was
presented, not any comments that Bure made while representing himself. Because
the prosecutor’s statements were not such that a jury would necessarily perceive
them as commentary on Bure’s failure to testify, the record did not establish a
Fifth Amendment violation.
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II.
Bure claims that the State failed to provide him with adequate discovery
pretrial. The Fifth Amendment of the United States Constitution protects a
defendant from the deprivation of his “life, liberty, or property, without due
process of law.” U.S. Const. Amend. V. The Constitution, however, provides no
general right to discovery in criminal cases. Weatherford v. Bursey, 429 U.S. 545,
559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977). If the prosecution suppresses
requested evidence favorable to an accused which is material to guilt or
punishment, that suppression violates due process. Brady v. Maryland, 373 U.S.
83, 87, 83 S.Ct. 1194, 1196–97, 10 L.Ed.2d 215 (1963). The prosecution need not
disclose its entire file to the defense, only evidence that would deprive the accused
of a fair trial if it were suppressed. United States v. Bagley, 473 U.S. 667, 675,
105 S.Ct. 3375, 3379, 87 L.Ed.2d 481 (1985). Such evidence is material if “there
is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” Id. at 682, 105 S.Ct. at 3383.
Here, liberally construing Bure’s discovery claim as one invoking due
process rights or Brady, the record shows that he received the documents
concerning his case before trial. Bure did not explain exactly what other
“evidence” should have been disclosed, nor did he explain how the alleged
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omission deprived him of a fundamentally fair trial or how disclosure would have
resulted in a more favorable outcome at trial.
III.
Bure claims that the Circuit Court improperly permitted him to represent
himself.
The Sixth Amendment grants an accused the right to represent himself at
trial. Faretta v. California, 422 U.S. 806, 819–20, 95 S.Ct. 2525, 2533, 45
L.Ed.2d 562 (1975). Before representing himself, a defendant must make a clear
and unequivocal request to do so and be made aware of the benefits he
relinquishes by doing so. Id. at 835, 95 S.Ct. at 2541. The court must ensure that
he knowingly and intelligently chooses to forego these benefits by making him
aware of the “dangers and disadvantages of self-representation, so that the record
will establish that he knows what he is doing and his choice is made with eyes
open.” Id. (quotation omitted). A court may find a defendant competent to waive
his right to counsel and represent himself if he has a “rational understanding” of
the proceedings. Muhammad v. Sec’y, Dept. of Corr., 554 F.3d 949, 956 (11th
Cir. 2009).
The record shows that the Circuit Court complied with Faretta before
allowing Bure to represent himself. There is nothing in the record that would have
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put the court on notice that Bure was not competent waive the right to counsel and
represent himself. In short, there is nothing in the record that would support an
argument that the decision to allow Bure to represent himself was contrary to, or
an unreasonable application of, a United States Supreme Court
holding—specifically, Faretta v. California.
The judgment of the District Court is, accordingly,
AFFIRMED.
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