           Case: 16-14993   Date Filed: 01/09/2018   Page: 1 of 3


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-14993
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 4:13-cv-00345-RH-CAS



DANIEL L. TAPPEN,

                                                     Petitioner - Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                     Respondent - Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     ________________________

                            (January 9, 2018)

Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:
                Case: 16-14993        Date Filed: 01/09/2018       Page: 2 of 3


       Daniel Tappen, a Florida inmate serving a life sentence for first degree

murder, appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a

writ of habeas corpus. The district court granted Tappen a certificate of

appealability on one issue: whether admission at trial of the surreptitious recording

of a conversation between Tappen and his attorney violated the Sixth Amendment.

       While Tappen was detained pretrial, he obtained permission to walk through

the scene of the crime—his residence—while accompanied by his attorney but

remaining in the custody of police. While the walk-through took place, Tappen

discussed the case with his attorney while handcuffed to a deputy. Unbeknownst

to Tappen or his attorney, the State video and audio recorded the walk-through,

capturing Tappen’s discussion with his attorney. Over Tappen’s objection, the

State offered the recording into evidence at trial.1 The jury convicted Tappen of

the murder. On appeal, Tappen again asserted that admission of the surreptitious

recording was in error; the appellate court affirmed his conviction without an

opinion. See Tappen v. State, 75 So. 3d 274 (Fla. Dist. App. 2011).

       Tappen filed a federal habeas petition, relying for his Sixth Amendment

claim on Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1996), a case granting a

petitioner relief under circumstances similar to Tappen’s. Because he filed his
       1
         Defense counsel objected based on the attorney-client privilege and did not invoke the
United States Constitution. Despite the fact that Tappen apparently procedurally defaulted his
Sixth Amendment claim by failing to object on that ground in the trial court, the district court
reached the merits of Tappen’s Sixth Amendment claim. We do so as well, assuming for
purposes of this opinion that Tappen’s claim was presented properly to the state courts.
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               Case: 16-14993     Date Filed: 01/09/2018    Page: 3 of 3


federal petition after April 24, 1996, it was governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). Generally, AEDPA bars federal

courts from granting habeas relief to a petitioner on a claim that was adjudicated

on the merits in state court unless the state court’s 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 district court denied Tappen’s petition, noting as relevant here that

Haworth was not a Supreme Court decision and thus could not satisfy Tappen’s

burden to overcome AEDPA deference. On appeal, Tappen criticizes the district

court for failing to account for the egregiousness of the facts in his case. But, as in

the district court, Tappen has failed to identify any Supreme Court precedent

establishing that his Sixth Amendment right was violated. More specifically, he

has failed to show that the state court’s rejection of his claim was contrary to or

involved an unreasonable application of clearly established law as determined by

the Supreme Court. Thus we, like the district court, must reject his petition.

      AFFIRMED.




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