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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15535
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cv-24624-MGC
TIMOTHY SNEED,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
llllllllllllllllllllllllllllllllllllllll Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 7, 2012)
Before MARCUS, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
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Timothy Sneed, a Florida state prisoner, appeals pro se from the district court’s
denial of his 28 U.S.C. § 2254 habeas petition. He argues that the state court erred
in rejecting his claims that: (1) his amended information was invalid; (2) his speedy
trial rights were violated; (3) his trial counsel was ineffective for failing to adequately
object to the State’s use of peremptory strikes to remove black prospective jurors and
failing to preserve the issue for appeal; (4) his trial counsel was ineffective for failing
to object to the exclusion of homosexuals from the venire and petit jury; (5) his trial
counsel was ineffective for failing to adequately investigate juror misconduct; (6) his
trial counsel was ineffective for failing to object to the State’s improper closing
argument; (7) his continued incarceration is illegal due to the cumulative effect of his
trial counsel’s errors; and (8) his appellate counsel was ineffective for failing to raise
certain arguments on appeal. After careful review, we affirm.
We review the district court’s denial or grant of a § 2254 habeas petition de
novo. McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). We review
questions of law and mixed questions of law and fact de novo, and findings of fact
for clear error. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). A district
court’s determination regarding the sufficiency of an indictment is a question of law
subject to de novo review. United States v. Ndiaye, 434 F.3d 1270, 1280 (11th Cir.
2006). A claim for ineffective assistance of counsel is reviewed de novo as a mixed
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question of law and fact. Rhode v. Hall, 582 F.3d 1273, 1279 (11th Cir. 2009). The
pleadings of a pro se litigant must be construed liberally. Pugh v. Smith, 465 F.3d
1295, 1300 (11th Cir. 2006).
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996,
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim--
(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). So, although we review de novo the district court’s decision
about whether a state court reasonably applied federal law or determined the facts, we
owe deference to the final state habeas judgment. Hall v. Thomas, 611 F.3d 1259,
1284 (11th Cir. 2010). This deference applies whenever a claim was adjudicated “on
the merits.” Loggins v. Thomas, 654 F.3d 1204, 1218 (11th Cir. 2011).
For § 2254 purposes, a claim is presumed to be adjudicated on the merits if the
federal claim is presented to the state court and the state court has denied relief. Id.
at 1219. We have held that a state court’s summary rejection of a claim, without
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discussion, qualifies as an adjudication on the merits under § 2254(d), and, thus,
warrants deference. Wright v. Sec’y for the Dep’t of Corr., 278 F.3d 1245, 1253-54
(11th Cir. 2002). We reasoned that the plain language of the statute only required “a
rejection of the claim on the merits, not an explanation.” Id. at 1254-55.
Accordingly, although the state court’s March 2010 order only discussed one ground
in detail, it can be considered an adjudication on the merits of the other ten grounds
included in the certificate of appealability (“COA”) because the order mentioned that
the court had previously denied those claims.
The Supreme Court has clarified that the phrase “clearly established” in §
2254(d)(1) refers to the holdings, as opposed to the dicta, of the Supreme Court’s
decisions at the time of the relevant state court decision. Lockyer v. Andrade, 538
U.S. 63, 71 (2003). Thus, “clearly established Federal law” means the Supreme
Court’s governing legal principles at the time the state court renders its decision. Id.
at 71-72. A state court decision is “contrary to” established law: (1) if the state
arrives at a conclusion opposite to that reached by the Supreme Court on a legal
question; or (2) if a state court confronts facts that are “materially indistinguishable”
from relevant Supreme Court precedent, but arrives at an opposite result from that
arrived at by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
If no Supreme Court precedent is on point, a state court’s conclusion cannot be
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contrary to clearly established Federal law as determined by the U.S. Supreme Court.
Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003). A state court decision
“unreasonabl[y] appli[es]” clearly established law if the state court unreasonably
applies the established law to the facts of a case. Williams, 529 U.S. at 407.
Section 2254(d) review asks only if “there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with [the Supreme] Court’s
precedents.” Cave v. Sec’y, Dep’t of Corr., 638 F.3d 739, 744 (11th Cir.) (quotation
omitted), cert. denied, 132 S. Ct. 473 (2011). Thus, “a state prisoner must show that
the state court’s ruling on the claim being presented in federal court was so lacking
in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Id. (quotation omitted).
To overcome the deference owed to state court factual determinations, a petitioner
must present clear and convincing evidence that the state court’s factual findings were
unreasonable. Id. at 745; 28 U.S.C. § 2254(e)(1).
I.
First, we are unpersuaded by Sneed’s claim that the state court improperly
rejected his argument that his amended information was invalid (Grounds 4 and 6 of
his petition). “The sufficiency of a state indictment is an issue on federal habeas
corpus only if the indictment was so deficient that the convicting court was deprived
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of jurisdiction.” Heath v. Jones, 863 F.2d 815, 821 (11th Cir. 1989). We have held
that, “[i]f an indictment specifically refers to the statute on which the charge was
based, [that] reference . . . adequately informs the defendant of the charge.” United
States v. Fern, 155 F.3d 1318, 1325 (11th Cir. 1998). “Moreover, the constitutional
standard is fulfilled by an indictment that tracks the wording of the statute, as long
as the language sets forth the essential elements of the crime.” Ndiaye, 434 F.3d at
1299 (quotation omitted). The elements of second degree murder under Florida law
as it existed in 1998 were: (1) unlawful killing of a human being; (2) when
perpetrated by any act imminently dangerous to another and evincing a depraved
mind regardless of human life; and (3) without any premeditated design to cause
death. FLA. STAT. § 782.04(2) (1998).
Here, the wording of the amended information both provided the citation to the
specific statutes for the offense and used language nearly identical to the statute,
which contained all the essential elements of the crime. Id. Therefore, the indictment
was constitutionally adequate and sufficiently informed Sneed of the charge. Fern,
155 F.3d at 1325; Ndiaye, 434 F.3d at 1304-05. The state court’s rejection of this
claim was not contrary to or an unreasonable application of Supreme Court law.
II.
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We also find no merit to Sneed’s claim that the state court improperly rejected
his speedy trial argument (Ground 5). There are three sources of speedy trial rights
for criminal defendants: (1) the Sixth Amendment to the U.S. Constitution; (2) the
federal Speedy Trial Act; and (3) state speedy trial rules. The Sixth Amendment
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a
speedy . . . trial.” U.S. Const. amend. VI. In determining whether the right to a
speedy trial was violated, we consider: (1) the length of the delay; (2) the reason for
the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant.
Barker v. Wingo, 407 U.S. 514, 530 (1972). We have held that if the state pursued
prosecution with reasonable diligence, then the defendant must show actual prejudice
to prevail on a Sixth Amendment speedy trial claim. United States v. Harris, 376 F.3d
1282, 1290 (11th Cir. 2004).
“The first factor serves a triggering function; unless some ‘presumptively
prejudicial’ period of delay occurred, we need not conduct the remainder of the
analysis.” United States v. Register, 182 F.3d 820, 827 (11th Cir. 1999). “A delay
is considered presumptively prejudicial as it approaches one year” from indictment
to trial. United States v. Schlei, 122 F.3d 944, 987 (11th Cir. 1997); see also Harris,
376 F.3d at 1290 (an 18-month delay is presumptively prejudicial). Different weights
are assigned to different reasons for delay. Barker, 407 U.S. at 531. A deliberate
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attempt to hinder the defense is weighted heavily against the State, negligence or
overcrowded courts are weighted less heavily, and legitimate reasons like a missing
witness justify an appropriate delay. Id. at 531, 534. Pretrial delay is often inevitable
and “wholly justifiable” because the State may need time to, inter alia, collect
witnesses against the accused. Doggett v. United States, 505 U.S. 647, 656 (1992).
The federal Speedy Trial Act, 18 U.S.C. §§ 3161-3174, does not apply to state
court proceedings. See United States v. Bell, 833 F.2d 272, 277 (11th Cir. 1987).
Instead, as a Florida prisoner, Sneed’s rights were governed by Florida’s speedy trial
rules. See Fla.R.Crim.P. 3.191. These rules are not controlling, however, because
they are not based on clearly established federal law, having been promulgated by
Florida and not the U.S. Supreme Court. See 28 U.S.C. § 2254(d). Indeed, questions
of state law rarely raise issues of federal constitutional significance and, therefore,
“[a] state’s interpretation of its own laws or rules provides no basis for federal habeas
corpus relief, since no question of a constitutional nature is involved.” Carrizales v.
Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983). A violation of Florida’s speedy
trial rules does not “go to the fundamental fairness of the trial” so that it is cognizable
in a § 2254 petition. Davis v. Wainwright, 547 F.2d 261, 264 (5th Cir. 1977).1
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
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Here, the central question is whether the determination by the Florida court that
Sneed was not deprived of the right to a speedy trial was contrary to or involved an
unreasonable application of clearly established federal law. To the extent that Sneed
alleged a violation of Florida’s speedy trial rules, that type of claim is not cognizable
on federal habeas review because it only involves state procedural rules rather than
errors of federal constitutional dimension.
To the extent that Sneed’s petition, liberally construed, asserted a violation of
his federal speedy trial rights, his claim still fails. As noted above, the federal Speedy
Trial Act does not apply to state courts, so Sneed has to rely on the Sixth Amendment
as expressed in the Barker factors. But even assuming arguendo that two Barker
factors -- the length of the delay and prejudice -- weigh against the State, Sneed has
not shown that the remaining two factors -- when the defendant asserted his right
(nearly four years after the amended information was filed) and the reason for the
delay (unclear from the record) -- weigh in his favor. As a result, Sneed has not
shown that “there is no possibility fairminded jurists could disagree that the state
court’s decision conflicts with [the Supreme] Court’s precedents.” Cave, 638 F.3d
at 744 (quotation omitted).
III.
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Nor do we agree with Sneed’s claim that the state court erred in rejecting his
argument that his trial counsel was ineffective for failing to adequately object to the
State’s use of peremptory strikes to remove black prospective jurors and failing to
preserve the issue for appeal (Grounds 9 and 10). The United States Constitution
provides that in “all criminal prosecutions, the accused shall enjoy the right . . . to
have the Assistance of Counsel for his defen[se].” U.S. Const. amend. VI. To make
a successful claim of ineffective assistance of counsel, a defendant must show that:
(1) counsel’s performance was deficient; and (2) the deficient performance prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Both parts of the
test must be met, thus, if a defendant cannot satisfy the performance prong, a court
does not need to address the prejudice prong, and vice versa. Michael v. Crosby, 430
F.3d 1310, 1319 (11th Cir. 2005).
In determining whether counsel’s performance was deficient, “counsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S.
at 690. “The test for reasonableness is not whether counsel could have done
something more or different; instead,” the petitioner must show that counsel’s
performance fell outside the “wide range” of professionally competent assistance.
Payne v. Allen, 539 F.3d 1297, 1317 (11th Cir. 2008) (quotation omitted). Courts
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apply a “doubly” deferential standard in the ineffective-assistance context that takes
into account § 2254’s deference to state courts and the ordinary deference to counsel,
affirming if “there is any reasonable argument that counsel” acted pursuant to
prevailing professional standards as set forth in controlling law. See Harrington v.
Richter, 562 U.S. __, __, 131 S.Ct. 770, 788 (2011).
To establish prejudice, the petitioner has the burden to show more than that the
error had “some conceivable effect on the outcome of the proceeding.” Marquard v.
Sec’y for Dep’t of Corr., 429 F.3d 1278, 1305 (11th Cir. 2005) (quotation omitted).
“Rather, the petitioner must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. (quotation omitted). When evaluating prejudice, we look at the “entire
evidentiary picture.” Agan v. Singletary, 12 F.3d 1012, 1019 (11th Cir. 1994).
The Equal Protection Clause prohibits States from denying “to any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, §
1. The Supreme Court has held that a prosecutor’s use of peremptory challenges to
exclude African Americans for race-related reasons from serving on a jury violates
the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 89 (1986). We have
interpreted Batson such that “criminal defendants and excluded jurors alike are
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denied equal protection of the laws when the trial jury is constructed in a racially
discriminatory manner.” Eagle v. Linaham, 279 F.3d 926, 943 (11th Cir. 2001).
Batson requires a court to undertake a three-step analysis to evaluate equal
protection challenges to a prosecutor’s use of peremptory challenges. 476 U.S. at
96-98; McGahee v. Alabama Dep’t of Corr., 560 F.3d 1252, 1256 (11th Cir. 2009).
First, a defendant must make a prima facie showing of purposeful discrimination
based upon a prohibited ground. Batson, 476 U.S. at 96-97. A prima facie case is
established where a defendant shows that “he is a member of a cognizable racial
group and that the relevant circumstances raise an inference that the prosecution has
exercised peremptory challenges to remove from the venire members of his race.”
Bui v. Haley, 321 F.3d 1304, 1313 (11th Cir. 2003) (quotation and alterations
omitted). Upon such a showing, the burden of proof shifts to the State to provide a
race-neutral explanation for excluding the jurors. Batson, 476 U.S. at 97. Finally, in
light of the parties’ submissions, the trial court has the duty to determine if the
defendant established purposeful discrimination. Id. at 98.
When assessing the credibility of the prosecutor’s proffered reasons, the trial
court may look to the prosecutor’s demeanor, the reasonableness or improbability of
the reasons, and whether the reason is grounded in proper trial strategy. Miller-El v.
Cockrell, 537 U.S. 322, 338-39 (2003). Likewise, that the prosecutor’s reasons for
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striking a juror apply equally as well to an otherwise similar juror of a different class
is evidence of purposeful discrimination. See Miller-El v. Dretke, 545 U.S. 231, 241
(2005). The implausibility of a reason may evidence pretext for discrimination. See
Cockrell, 537 U.S. at 339. The ultimate burden of persuasion regarding improper
motivation rests with, and never shifts from, the party challenging the peremptory
strike. Purkett v. Elem, 514 U.S. 765, 768 (1995).
In this case, we cannot say that the Florida state court’s judgment was contrary
to, or an unreasonable application of clearly established federal law, specifically the
Supreme Court’s holding in Batson. As for the State’s strike of the first black
prospective juror, the interaction between the parties and the state court (where, upon
being challenged, the State revealed that it wished to strike this juror because two
prosecutors had seen her sleeping during the jury selection process, and the trial court
then moved onto the next juror) was adequate under Batson, so trial counsel was not
ineffective in that respect. See Hightower v. Terry, 459 F.3d 1067, 1072 n.9 (11th
Cir. 2006) (recognizing that a trial judge can implicitly find a prosecutor’s proffered
reasons credible). Moreover, even assuming that Sneed’s counsel erred by not
making further efforts to preserve a Batson challenge for appeal, Sneed did not show
prejudice; i.e., because his Batson claim would have been meritless, it would not have
had a reasonable probability of success on appeal. Strickland, 466 U.S. at 687.
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As for the State’s strike of the second black prospective juror, the record
indicates that Sneed’s counsel did not object to the strike. But even if counsel was
deficient for failing to challenge the State’s strike pursuant to Batson, Sneed could
not establish the prejudice prong of Strickland. Indeed, Sneed has not shown that,
had counsel objected, his challenge would have been successful, nor is it clear that
the second prospective black juror being on the jury would have carried a reasonable
probability of changing the outcome of the trial. Marquard, 429 F.3d at 1305.
IV.
We also find no merit in Sneed’s remaining arguments on appeal, which we
dispose of quickly. As for his ineffective assistance argument based on trial counsel’s
failure to object to the exclusion of homosexuals from the venire and petit jury
(Ground 17), Sneed has presented no evidence concerning the sexual orientation of
the members of the jury pool or the petit jury, nor did he establish how many
homosexuals, if any, were among the venire or petit jury. Because he did not
demonstrate that homosexuals were underrepresented, he failed to make his fair
cross-section claim under the Sixth Amendment and his discriminatory jury selection
claim under the Equal Protection Clause of the Fourteenth Amendment. Duren v.
Missouri, 439 U.S. 357, 364 (1979); Castaneda v. Partida, 430 U.S. 482, 494 (1977).
Moreover, the Supreme Court has never held that homosexuality is a protected class
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for purposes of analyzing discrimination in jury selection under Batson. See United
States v. Ehrmann, 421 F.3d 774, 781-82 (8th Cir. 2005). Further, since all of
Sneed’s jury selection claims regarding homosexuals are without merit, trial counsel
was not ineffective for failing to raise them before the state habeas court. Chandler
v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (counsel is not ineffective for failing
to raise a non-meritorious objection). Accordingly, the state court’s decision denying
Sneed’s claim in this regard was not contrary to or an unreasonable application of
clearly established federal law.
As for Sneed’s ineffective assistance claim based on trial counsel’s failure to
adequately investigate juror misconduct (Grounds 7 and 8), the state court did not
clearly err by concluding that the subject of the juror notes that Sneed found in the
trash can was not relevant to Sneed’s trial, since nothing on the papers referred to
Sneed, the trial, his race, or his sexual orientation. Because there was no juror
misconduct, the state court’s conclusion that trial counsel was not ineffective for
failing to further investigate the notes could not have been contrary to or an
unreasonable application of Supreme Court law.
Nor was the state court’s rejection of his ineffective assistance claim based on
trial counsel’s failure to object to the State’s improper closing argument (Ground 15)
contrary to or an unreasonable application of Supreme Court law. As the record
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shows, the remarks in the prosecutor’s closing argument -- that Sneed and his counsel
were “talking out of both sides of [their] mouth[s],” that Sneed had put on a
performance on the stand, and that Sneed testified after hearing other witnesses testify
-- were isolated comments that did not tend to mislead the jury. Further, competent
evidence likely supported the verdict because juries at two trials convicted Sneed, and
there thus was no reasonable probability that the outcome may have been different
otherwise. Donnelly v. DeChristoforo, 416 U.S. 637, 642-45 (1974); Hance v. Zant,
696 F.2d 940, 950 n.7 (11th Cir. 1983), overruled on other grounds, Brooks v. Kemp,
762 F.2d 1383 (11th Cir. 1985). In addition, the Supreme Court has never found a
prosecutor’s closing argument so improper that it violated the defendant’s due
process rights, so we cannot say that the state court unreasonably applied federal law
in denying Sneed’s claim for relief. Reese v. Sec., Fla. Dep’t of Corr., 675 F.3d 1277,
1287-88 (11th Cir. 2012).
As for Sneed’s cumulative error claim (Ground 18), neither error listed in his
initial brief -- the State’s use of peremptory strikes and the exclusion of homosexuals
from the jury venire and petit jury -- has merit, as we’ve already discussed.
Accordingly, there are no errors to accumulate, and the state court’s rejection of this
claim was not contrary to or an unreasonable application of Supreme Court law. See
Borden v. Allen, 646 F.3d 785, 823 (11th Cir. 2011) (“Because Borden has not
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sufficiently pled facts that would establish prejudice -- cumulative or otherwise -- we
decline to elaborate further on [a cumulative-effect ineffective assistance of counsel
claim] for fear of issuing an advisory opinion on a hypothetical issue.”).
Finally, the state court’s rejection of Sneed’s appellate-counsel-ineffectiveness
claim was not contrary to or an unreasonable application of Supreme Court law. As
we’ve already discussed, none of Sneed’s challenged alleged errors, so far as they are
encompassed in the COA, are meritorious; as a result, appellate counsel cannot be
deemed ineffective for failing to have raised them on direct appeal. See Card v.
Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990) (holding that appellate counsel is not
required to raise meritless issues on appeal). Moreover, Sneed was not prejudiced by
counsel’s failure to raise those issues since the arguments had no reasonable
probability of success. Eagle, 279 F.3d at 943.
AFFIRMED.
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