           Case: 18-12037   Date Filed: 04/23/2019   Page: 1 of 7


                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-12037
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:16-cv-24758-MGC



FREDDIE LEE WILSON,

                                                        Petitioner-Appellant,

                                    versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
STATE OF FLORIDA ATTORNEY GENERAL,

                                                     Respondents-Appellees.

                       ________________________

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

                              (April 23, 2019)

Before WILSON, NEWSOM, and HULL, Circuit Judges.

PER CURIAM:
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      Freddie Lee Wilson, a Florida state prisoner proceeding pro se, appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging

his conviction for second-degree murder and sentence of 35 years’ imprisonment.

Wilson’s § 2254 petition states four grounds for relief, alleging that his trial

counsel provided ineffective representation in failing to: (1) obtain a second

medical examiner’s opinion regarding the victim’s cause of death; (2) inform

Wilson of defenses to the charge against him, rendering his guilty plea involuntary;

(3) argue any defenses on Wilson’s behalf; and (4) argue that, because the killing

occurred in the “heat of passion,” Wilson was guilty only of manslaughter.

      When reviewing a district court’s denial of a § 2254 petition, we review de

novo mixed questions of law and fact—including claims of ineffective assistance

of counsel. Pardo v. Sec’y, Fla. Dep’t of Corr., 587 F.3d 1093, 1098 (11th Cir.

2009) (citations omitted). But de novo does not mean without deference. For one

thing, as explained in Strickland v. Washington, our analysis of Wilson’s

ineffectiveness claim is “highly deferential” and includes a “strong presumption”

that counsel provided reasonable professional assistance. 466 U.S. 668, 689

(1984). For another, because the Antiterrorism and Effective Death Penalty Act of

1996 applies to Wilson’s petition, we may not grant relief unless the state court’s

conclusions (1) were contrary to or involved an unreasonable application of clearly

established federal law or (2) resulted in a decision based on an unreasonable


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determination of the facts given the evidence presented in the state court

proceeding. 28 U.S.C. § 2254(d). Here as well, our review is “highly deferential.”

Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997). Thus, the Supreme Court has said

that when a Strickland claim is part of a dispute subject to the AEDPA, our review

is “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011). It will

therefore be a “rare case” in which an ineffective-assistance claim, denied on the

merits in state court, is found to warrant relief in a federal habeas proceeding.

Gissendaner v. Seabolt, 735 F.3d 1311, 1323 (11th Cir. 2013) (citations omitted).

       This is not such a case. To prove ineffective assistance of counsel, Williams

must show not only that his attorney made errors so serious that she ceased to

function as the counsel that the Sixth Amendment guarantees, but also that the

errors prejudiced his defense. Hill v. Lockhart, 474 U.S. 52, 58 (1985);

Strickland, 466 U.S. at 687.1

       One last point before turning to the merits: because the final state court

opinion does not explain that court’s rationale for affirming the prior opinion, we

“look through” its decision to the “last reasoned opinion” and assume that the final

state court adopted the lower court’s reasoning. Wilson v. Sellers, 138 S. Ct. 1188,

1192, 1194 (2018). When we do so, we conclude that the state court reasonably


1
  If Williams makes an insufficient showing on the prejudice prong, we need not address the
performance prong, and vice versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)
(citations omitted).
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assessed the facts relating to each of Wilson’s ineffectiveness of assistance claims

and reasonably applied federal law in deciding that Williams failed to carry his

burden of proof. See 28 U.S.C. § 2254(d).

                                          I

      Addressing Wilson’s first claim—that his attorney was ineffective in failing

to obtain the testimony of another medical examiner—the state court found that

Wilson did not indicate how a second medical examiner’s testimony would have

demonstrated that he was guilty of manslaughter rather than second-degree murder.

This determination was reasonable in light of the facts before the court; it was also

consistent with federal law. Although Wilson gestures toward the possibility of his

victim having a pre-existing condition, he offered the state court no evidence

showing why another medical examiner would review the evidence from the

incident—which indicated that the victim had been kicked and punched in the

chest, bled out internally, and been left dead for several days—and reach a

different conclusion than the first medical examiner. As for federal law,

ineffective assistance of counsel cannot be proven via conclusory assertion—see,

e.g., Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320, 1333–34 (11th Cir.

2012)—but that is all Wilson offered. The federal district court was therefore

correct in upholding the state court’s determination.




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      The state court consolidated its discussion of Wilson’s second and third

claims. This was reasonable, because both claims argued that Wilson’s counsel

was ineffective for failing to reveal to him, or raise at trial, various defenses to

Wilson’s charge of second-degree murder. Wilson asserts that had he known of

these defenses, he would not have pleaded guilty.

      The state court responded that it was incumbent on Wilson to provide his

attorney with adequate information to enable her to identify feasible defenses. On

the one hand, this is not necessarily how we would have chosen to address

Wilson’s claims. After all, Wilson has also stated that counsel told him that none

of his possible defenses would be meritorious—indicating that his attorney did not

stonewall Wilson so much as recognize and communicate to him the likely futility

of any defenses. On the other hand, and more importantly, our preferred approach

is just that—a preference. Wilson must show that the state court made an error that

“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 103. And a difference in approach hardly

amounts to an indisputable error. In addition, and in any case, Wilson’s second

and third claims are as conclusory as the first. Wilson does not indicate how or

why these defenses could have weakened the evidence against him—we are simply

told that they would. Therefore, even if we were to agree that his counsel was


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insufficiently communicative, Wilson will still have failed to meet his burden of

demonstrating prejudice. Strickland, 466 U.S. at 687. The district court was again

correct to uphold the state court’s decision.

      Finally, Wilson’s fourth claim concentrates on the particular defense of

“heat of passion.” Wilson contends that his counsel was ineffective in failing to

raise this mitigating defense. The state court rejected this claim because, during

Wilson’s plea colloquy, he stated that he had adequate time to discuss his case with

his attorney and understood the nature and consequences of the plea agreement.

The state court also noted that Wilson faced life imprisonment as a Prison Release

Reoffender when he chose to accept the plea agreement.

      Wilson has not shown why the “heat of passion” defense would have been

viable given the evidence before the state court, or why the state court’s

determination was contrary to federal law. He identifies cases in which we have

found that a counsel’s poor advice amounted to deficient performance, but does not

provide adequate facts to support the contention that his counsel’s advice was

similarly lacking. We do not doubt, for example, that Wilson and the victim had a

“turbulent relationship,” Doc. 13 at 23, but that fact alone does not demonstrate the

viability of a “heat of passion” defense, and Wilson provides no further

information that would suggest his counsel erred in recommending he avoid

risking life imprisonment. The state court’s decision was therefore neither


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contrary to federal law nor an unreasonable application of that law in light of the

evidence presented, as the district court correctly concluded.

                                         II

      The district court here correctly determined that Wilson was not eligible for

habeas relief because the state court reasonably assessed the facts, and reasonably

applied federal law applicable to Wilson’s ineffective assistance claims. Under

AEDPA, the district court’s denial of Wilson’s petition was therefore proper. See

28 U.S.C. § 2254(d). Accordingly, we affirm.


      AFFIRMED.




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