                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                  JUL 13, 2006
                                 No. 05-14847                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                       D. C. Docket No. 04-60989-CV-DLG

MARK HARRIS,

                                                               Petitioner-Appellant,

      versus

SECRETARY FOR THE DEPARTMENT OF
CORRECTIONS, James McDonough,

                                                              Respondent-Appellee.

                           ________________________

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

                                  (July 13, 2006)

Before ANDERSON, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      Mark Harris, a state prisoner proceeding pro se, appeals the district court’s

denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Harris argues
that he received ineffective assistance of counsel, in violation of his Sixth

Amendment rights, because his trial counsel mistakenly told him that voluntary

intoxication was not a possible defense to his first-degree murder charge for the

November, 1998 killing of his long-time girlfriend. Harris argues that counsel’s

failure to pursue this defense could not have been a tactical decision because

counsel misinformed him of the applicable law. Harris also argues that the alleged

deficiency prejudiced him because, had the jury been informed that he was

voluntarily intoxicated, it would either have acquitted him or convicted him of the

lesser offense of manslaughter.

      In March 2003, Harris filed a motion for post-conviction relief in Florida

state court. The Florida trial court denied his motion and the Fourth District Court

of Appeals affirmed. Harris then filed his petition for writ of habeas corpus with

the federal district court. Under 28 U.S.C. § 2254(d), a federal court may not grant

habeas relief on claims that were previously adjudicated in state court, unless the

adjudication “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law . . . or resulted in a

decision based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” A state court’s summary,

unexplained rejection of a constitutional issue qualifies as an adjudication that is



                                           2
entitled to deference. Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1254

(11th Cir. 2002). The state court only is required to reject a claim on the merits,

not to provide an explanation for § 2254(d)(1) to apply. Id. at 1255. A state court

decision that does not rest on procedural grounds alone is an adjudication on the

merits, regardless of the form in which it is expressed. Id. at 1255-56.

       To demonstrate ineffective assistance of counsel, a prisoner first “must

show that counsel’s performance was [constitutionally] deficient” (“performance

prong”). Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80

L.Ed.2d 674 (1984). Second, the prisoner must establish that the deficient

performance prejudiced the defense (“prejudice prong”). Id. “[T]here is no reason

for a court deciding an ineffective assistance claim to approach the inquiry in the

same order or even to address both components of the inquiry if the defendant

makes an insufficient showing on one.” Id. at 697, 104 S.Ct. at 2069.

      To prove the deficient performance prong of the Strickland test, the prisoner

must show that counsel made errors so serious that he or she was not functioning

as the counsel guaranteed by the Sixth Amendment. Id. at 687, 104 S.Ct. at 2064.

The proper measure of attorney performance is reasonableness under prevailing

professional norms. Id. at 688, 104 S.Ct. at 2065. The guiding principle is

“whether counsel’s conduct so undermined the proper functioning of the



                                           3
adversarial process that the trial cannot be relied on as having produced a just

result.” Id. at 686, 104 S.Ct. at 2064. Judicial scrutiny of counsel’s performance

must be highly deferential, and there is a strong presumption that counsel’s

conduct fell within the range of reasonable professional assistance. Id. at 689, 104

S.Ct. at 2065.

        To prove prejudice, “[t]he defendant 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. 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 errors had some

conceivable effect on the outcome of the proceeding.” Id. at 693, 104 S.Ct. at

2067.

        A petitioner raising an ineffective assistance of counsel claim must satisfy a

heavy burden of proof in order to prevail. “Given the strong presumption in favor

of competence, the petitioner’s burden of persuasion—though the presumption is

not insurmountable—is a heavy one.” Chandler v. United States, 218 F.3d 1305,

1314 (11th Cir. 2000) (en banc); see also Rogers v. Zant, 13 F.3d 384, 386 (11th

Cir. 1994) (noting that “the cases in which habeas petitioners can properly prevail

on the ground of ineffective assistance of counsel are few and far between”). “The



                                            4
test has nothing to do with what the best lawyers would have done. Nor is the test

even what most good lawyers would have done. We ask only whether some

reasonable lawyer at the trial could have acted, in the circumstances, as defense

counsel acted at trial.” White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992).

      In Florida, before October 1, 1999, voluntary intoxication was a recognized

defense to specific intent crimes such as first-degree murder. Effective as of

October 1, 1999, voluntary intoxication has been eliminated as a defense in

Florida. See Fla. Stat. § 775 .051 (1999). The defense was not a complete defense,

however, but available to negate specific intent. Gardner v. State, 480 So.2d 91, 92

(Fla. 1985); Chestnut v. State, 538 So. 2d 820, 822 (Fla. 1989). Thus, the defense

of voluntary intoxication was available only to reduce the charged offense to a

lesser-included offense. Voluntary intoxication was not an available defense for

general intent crimes, including second-degree murder or manslaughter. Wilson v.

State, 871 So. 2d 298, 301 (Fla. 1st Dist. Ct. App. 2004).

      Although Harris contends that his counsel should have correctly instructed

him as to the voluntary-intoxication defense, these allegations are not enough to

overcome the heavy burden of proof required to show ineffective assistance. See

Chandler, 218 F.3d at 1314. Harris offers no explanation as to why his trial

counsel should have pursued the voluntary-intoxication defense. The evidence



                                          5
presented at trial and at the suppression hearing demonstrated that Harris was not

intoxicated or under the influence at the time he committed the offense. Therefore,

any argument that counsel would have made regarding voluntary intoxication

would have been inconsistent with the evidence. See, e.g., White, 972 F.2d at

1221 (holding that defense counsel’s failure to present voluntary intoxication as a

defense in a capital-murder prosecution was not beyond the range of reasonable

professional judgment and, thus, did not amount to ineffective assistance, in view

of inconsistency of intoxication defense with deliberateness of the defendant’s

actions during the shootings). Because Harris has not produced any evidence to

rebut the presumption of competence, he has not shown that his counsel was

ineffective. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

      Moreover, Harris’s claim also fails because there was no prejudice. The

voluntary-intoxication defense was not a complete defense, but available only to

negate specific intent and reduce the charged offense to a lesser-included offense.

Harris was found guilty of only the lesser-included offense of second-degree

murder, which is a general-intent crime to which voluntary intoxication was not a

defense. See Wilson, 871 So. 2d at 301. In other words, a voluntary intoxication

defense could not have assisted Harris on the second-degree murder charge. Since

Harris was convicted of only the lesser-included offense, due at least in part to the



                                           6
efforts of defense counsel, he suffered no prejudice. Accordingly, the district court

was correct that the state court’s decision was not contrary to, nor involved an

unreasonable application of, clearly established Federal law, and, thus, the district

court did not err in denying Harris’s § 2254 petition for writ of habeas corpus. See

28 U.S.C. § 2254(d). Therefore, we affirm the district court.

      Upon a review of the record and upon consideration of the parties’ briefs, we

discern no reversible error.

      AFFIRMED.




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