            Case: 11-15163   Date Filed: 11/07/2012       Page: 1 of 14




                                                                [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 11-15163
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:10-cv-24280-MGC



GIOVANNI SAIRRAS,

                               llllllllllllllllllllllllllllllllllllllllPetitioner-Appellant,

                                    versus

FLORIDA DEPARTMENT OF CORRECTIONS,

                              llllllllllllllllllllllllllllllllllllllllRespondent-Appellee.

                       ________________________

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

                             (November 7, 2012)

Before DUBINA, Chief Judge, HULL and FAY, Circuit Judges.

PER CURIAM:
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      Appellant Giovanni Sairras, a Florida state prisoner proceeding pro se,

appeals the district court’s denial of his petition for writ of habeas corpus, filed

pursuant to 28 U.S.C. § 2254. On appeal, Sairras argues that the Florida court’s

adjudication of his each of his claims was contrary to, or involved an unreasonable

application of, clearly established Federal law, or was based on an unreasonable

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

proceeding.

      First, Sairras argues that, under State v. Warner, 762 So. 2d 507 (Fla. 2000),

there was a presumption of judicial vindictiveness in his sentencing that

constituted a reversible error, and his counsel was ineffective in failing to object

on this basis. Second, Sairras argues that his trial counsel was ineffective for

failing to file a motion to dismiss the charges against him on the basis that the

state did not receive sworn testimony from a material witness before commencing

the prosecution. Third, Sairras argues that his trial counsel was ineffective for

failing to move to suppress unlawfully intercepted communications that were

utilized at trial. Fourth, Sairras contends that trial counsel was ineffective for

failing to object to and agreeing with the trial court’s answer given to the jury’s

request for a definition of “distribution.” Fifth, Sairras argues that his appellate

counsel was ineffective in failing to argue on appeal that the prosecutor’s

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improper comments during closing argument rendered his trial fundamentally

unfair. The specific comments are that (1) Sairras was “part of an underworld

where drugs were bought and sold for a price,” and should not be compared to

“regular law abiding citizens,” (2) “[w]hen the ecstacy deal doesn’t work because

the defendant says, oh, but I can probably get you cocaine. The defense of

entrapment means that he has no predisposition in the world to be able to do it,”

(3) “at no point in time did he say no, no, no,” (4) [n]ormal law abiding citizens

don’t talk that way,” and (5) “crimes conceived in hell are not witnessed by

angels.” Sixth, Sairras argues that during closing argument, his trial counsel was

constitutionally ineffective for disclosing his incarcerated status to the jury.

Finally, Sairras argues that the trial court erred by denying his renewed motion to

dismiss and motion for judgment of acquittal, as the evidence established that he

was entrapped as a matter of law.

      After reviewing the record, and reading the parties’ briefs, we affirm.

                                           I.

      We review a district court’s denial of a habeas petition under 28 U.S.C.

§ 2254 de novo and its factual findings for clear error. Sims v. Singletary, 155

F.3d 1297, 1304 (11th Cir. 1998). A habeas petition based on ineffective

assistance of counsel presents a mixed question of law and fact that we review de

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novo. Id.

      A person in custody pursuant to the judgment of a state court shall not be

granted habeas relief unless the state court’s decision on the merits was

(1) “contrary to, or involved an unreasonable application of, clearly established

Federal law as determined by the Supreme Court of the United States; or (2) . . .

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). When a state

court’s application of governing federal law is challenged, the decision “must be

shown to be not only erroneous, but objectively unreasonable.” Yarborough v.

Gentry, 540 U.S. 1, 5, 124 S. Ct. 1, 4, 157 L. Ed. 2d 1 (2003). When reviewing a

state court’s decision applying federal law, a federal court must not determine the

accuracy of the result, but rather, whether the result was unreasonable, which is “a

substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.

Ct. 1933, 1939, 167 L. Ed. 2d 836 (2007). A state court’s factual determinations

are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1).

      In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d

674 (1984), the Supreme Court set out a two-part inquiry for ineffective assistance

of counsel claims:

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      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
      show that the deficient performance prejudiced the defense. This
      requires showing that counsel’s errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064. A habeas petitioner claiming ineffective

assistance of counsel must succeed on both prongs of the Strickland test. Johnson

v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001). If the defendant makes an

insufficient showing on the prejudice prong, the court need not address the

performance prong, and vice versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th

Cir. 2000).

      “To establish deficient performance, a defendant must show that his

counsel’s representation fell below an objective standard of reasonableness in light

of prevailing professional norms at the time the representation took place.”

Cummings v. Secretary for Dept. of Corrections, 588 F.3d 1331, 1356 (11th Cir.

2009) (internal quotation marks omitted). “In judging the reasonableness of

counsel’s performance, the issue is not what is possible or what is prudent or

appropriate, but only what is constitutionally compelled [, and performance must

fall] . . . . outside the wide range of professionally competent assistance” to be

considered deficient. Id. (internal quotation marks omitted). “The Federal

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Constitution imposes one general requirement: that counsel make objectively

reasonable choices.” Id. (internal quotation marks omitted). Reviewing courts

employ a strong presumption that trial counsel’s performance was reasonable and

that counsel exercised reasonable professional judgment in making all significant

decisions. Id.

       Prejudice is a “reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466

U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is one sufficient to

undermine confidence in the outcome. Id. It is not enough for the defendant to

show that the error had some conceivable effect on the outcome of the proceeding.

Id. at 693, 104 S. Ct. at 2067. He must show that the result would have been

different. See id.

      The standard of review is “doubly deferential” when a Strickland claim is

evaluated under the § 2254(d)(1) standard. Knowles v. Mirzayance, 556 U.S. 111,

123, 129 S. Ct. 1411, 1420, 173 L. Ed. 2d 251 (2009). “The question is not

whether a federal court believes the state court’s determination under the

Strickland standard was incorrect but whether that determination was

unreasonable—a substantially higher threshold.” Id. (internal quotation marks

omitted).

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      Florida law does not proscribe judicial participation in the plea bargaining

process, but rather, sets certain limits on judicial involvement in order to

“minimize the potential coercive effect on the defendant, to retain the function of

the judge as a neutral arbiter, and to preserve the public perception of the judge as

an impartial dispenser of justice.” Warner, 762 So. 2d at 513 (internal quotation

marks omitted). Where the trial judge participates in plea negotiations and then

imposes a harsher sentence after the defendant is convicted in a jury trial, instead

of applying a presumption of vindictiveness, Florida has adopted a totality of the

circumstances test to determine whether there is a “reasonable likelihood” that the

harsher sentence was imposed in retaliation for the defendant exercising his right

to a jury trial. In evaluating the totality of the circumstances, the reviewing court

considers: (1) whether the trial judge initiated the plea discussions in violation of

Warner; (2) whether the trial judge appears to have departed from his role as an

impartial arbiter, either by urging the defendant to accept a plea, or by implying or

stating that the sentence imposed would hinge on future procedural choices;

(3) the disparity between the plea offer and the sentence imposed; and (4) the lack

of any facts on the record that explain the reason for the increased sentence.

Wilson v. State, 845 So. 2d 142, 156 (Fla. 2003).

      Here, we conclude from the record that the Florida court’s determination

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under the Strickland standard was not unreasonable. Although the court’s

initiation of the plea discussions is a factor, a totality of the circumstances analysis

shows that there was not a reasonable likelihood that the harsher sentence was

imposed in retaliation for Sairras’s exercise of his right to a jury trial. Therefore,

there was no judicial vindictiveness under Florida law, and, consequently,

Sairras’s counsel could not have been deficient in failing to object on this basis.

Because counsel’s performance was not deficient, we need not analyze prejudice

under Strickland.

                                          II.

      Florida Statute § 923.03(2) requires that any indictment or information

contain a sworn oath of the state attorney certifying that “the allegations as set

forth in the foregoing information are based upon facts that have been sworn to as

true and which, if true, would constitute the offense therein charged.” FLA. STAT.

§ 923.03(2) (2010).

      Again, we conclude from the record that the state court’s adjudication of

this claim was reasonable because Sairras did not meet his burden of showing that

his counsel’s performance was deficient. To establish that his counsel was

ineffective in this regard, Sairras would have to show that the state did not receive

sworn testimony from a material witness before commencing the prosecution, and

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that his counsel knew that the state had not received such testimony. However,

there is no indication in the record that such testimony was not received, and

Sairras does not assert that his trial counsel was aware of the alleged deficiency.

                                         III.

      For purposes of obtaining evidence of a criminal act, FLA. STAT.

§ 934.03(2)(c), authorizes a law enforcement officer to intercept a communication

electronically when one of the parties to the communication has given prior

consent. State v. Welker, 536 So. 2d 1017, 1020 (Fla. 1988). Proof of consent for

this purpose is governed by the traditional rules of evidence, and there is no

requirement that consent be proven by the testimony of the consenting party. Id.

      Sairras has failed to show that his counsel’s performance was deficient in

failing to file a motion to suppress. Counsel filed a motion in limine seeking to

prevent the state from mentioning, introducing, or inviting any hearsay statements

made by the confidential informant (“CI”) and any testimony regarding any

audiotapes of recorded conversations between the CI and Sairras, and counsel

objected to the disputed testimony at trial. Thus, while it would have been possible

for Sairras’s counsel to file a motion to suppress the evidence, counsel’s choice to

utilize a motion in limine to keep the disputed evidence from the jury was not

objectively unreasonable. Further, Sairras cannot establish prejudice because he

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has not shown that the trial court would have granted a motion to suppress the

recordings and any related testimony. It is clear from the testimony at trial that the

confidential informant consented to the recording, which is sufficient to prove

consent for purposes of FLA. STAT. § 934.03(2)(c).

                                          IV.

      Florida law gives courts discretion in responding to jury questions. FLA. R.

CRIM. P. 3.410 (upon request by the jurors, “the court may give them additional

instructions”). Further, Florida courts can define terms in the jury instructions by

referring the jurors to the instructions previously given, or giving them a “brief,

clear response.” See Perriman v. State, 731 So. 2d 1243, 1247 (Fla. 1999). The

court should not give instructions which are confusing or unclear. Id. at 1246–47.

      Here, we conclude that Sairras’s counsel was not ineffective in failing to

object to the trial court’s answer to the jury’s request for a definition of the word

“distribution.” The court’s instruction for the jurors to use their experience and

common sense to interpret the term was brief and clear, not confusing or

misleading. Thus, because the trial court’s response to the jury’s question was

appropriate, Sairras’s counsel could not have been deficient for failing to object to

the response.

                                          V.

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      Claims of ineffective assistance of appellate counsel are governed by the

same standards applied to claims of ineffective assistance of trial counsel under

Strickland. See Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). In assessing

an appellate attorney’s performance, we are mindful that “the Sixth Amendment

does not require appellate advocates to raise every non-frivolous issue.” Id. at

1130-31. Rather, an effective attorney will weed out weaker arguments, even

though they may have merit. See id. at 1131. In order to establish prejudice, we

must review the merits of the omitted claim. See id. at 1132. Counsel’s

performance will be deemed prejudicial if we find that “the neglected claim would

have a reasonable probability of success on appeal.” Id. Where an issue is not

preserved for appellate review, appellate counsel’s failure to raise the issue is not

constitutionally deficient as it is based on the reasonable conclusion that the

appellate court will not hear the issue on its merits. Atkins v. Singletary, 965 F.2d

952, 957 (11th Cir. 1992); see also Farina v. State, 937 So. 2d 612, 629 (Fla.

2006) (appellate counsel may not be deemed ineffective for failing to challenge an

unpreserved issue on appeal unless it resulted in fundamental error).

      Pursuant to Florida law, failing to raise a contemporaneous objection when

improper closing argument comments are made waives any claim concerning such

comments for appellate review. Brooks v. State, 762 So. 2d 879, 898 (Fla. 2000).

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“The sole exception to the general rule is where the unobjected-to comments rise

to the level of fundamental error, which has been defined as error that reaches

down into the validity of the trial itself to the extent that a verdict of guilty could

not have been obtained without the assistance of the alleged error.” Id. at 898-99.

      The role of the attorney in closing arguments is to assist the jury in

analyzing, evaluating, and applying the evidence. Ruiz v. State, 743 So. 2d 1, 4

(Fla. 1999). “Comments on matters outside the evidence are clearly improper.”

Pope v. Wainwright, 496 So. 2d 798, 803 (Fla. 1986).

      The record demonstrates that all but one of the contested statements were

comments on matters in evidence, and were, therefore, not improper. On the other

hand, the comment—“[w]hen the ecstacy deal doesn’t work because the defendant

says, oh, but I can probably get you cocaine. The defense of entrapment means

that he has no predisposition in the world to be able to do it,”— was improper

because it referred to testimony that had been specifically struck by the court and

not admitted as evidence. However, the comment did not amount to fundamental

error under Florida law. Accordingly, appellate counsel was not deficient in failing

to raise this issue on appeal.

                                          VI.

      Viewed in the context of the trial as a whole, Sairras’s counsel chose to

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reveal that Sairras was still incarcerated in an attempt to appeal to the jury’s

sympathy, a choice which was not objectively unreasonable. Sairras has not

pointed to any authority establishing that revealing his incarcerated status was

constitutionally erroneous. Further, even if the comment was improper, Sairras has

not established prejudice, because there is not a reasonable probability that this

single, isolated comment changed the outcome of the proceeding. Accordingly, we

conclude that the state court’s application of Strickland to this issue was not

unreasonable.

                                          VII.

        It is well-settled that the defense of entrapment is not of constitutional

dimension. United States v. Russell, 411 U.S. 423, 433, 93 S. Ct. 1637, 1643, 36

L. Ed. 2d 366 (1983). However, the Supreme Court has recognized that there may

arise “a situation in which the conduct of law enforcement agents is so outrageous

that due process principles” would bar the prosecution. Id. at 431-32, 93 S. Ct. at

1643.

        Here, there was no outrageous government conduct that would implicate

Due Process. The CI was supervised throughout the investigation, and an officer

instructed the CI prior to any meeting with Sairras. Thus, there is no indication

that the CI was allowed to operate in a manner that could be deemed outrageous.

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The Florida court’s adjudication of this issue was reasonable.

      For the aforementioned reasons, we affirm the district court’s judgment

denying habeas relief.

      AFFIRMED.




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