           Case: 11-12589   Date Filed: 01/10/2013   Page: 1 of 7

                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 11-12589
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 1:10-cv-21268-AJ



MICHAEL A. RENDER,

                                                          Petitioner-Appellant,

                                  versus

FLORIDA DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                      ________________________

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

                            (January 10, 2013)

Before CARNES, WILSON and BLACK, Circuit Judges.



PER CURIAM:
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       Michael Render appeals the district court’s denial of his petition for a writ of

habeas corpus, pursuant to 28 U.S.C. § 2254 of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA). Render argues that the state trial court

violated his constitutional rights by not sufficiently inquiring into a juror who

stated she felt ill before taking the verdict in his original trial. After review, 1 we

affirm the district court.2

                                                  I.

       In 1990, Michael Render was charged with one count of attempted first-

degree murder, one count of robbery, two counts of armed burglary, and one count

of unlawful possession of a firearm while engaged in a criminal offense. In 1992,

Render was convicted on the first four counts. As a habitual offender, the state

court sentenced him to a term of natural life imprisonment on each of the four

counts, set to run concurrently.

       During the trial that led to his conviction, a juror felt ill and asked to be

excused. The state court and attorneys discussed available options and instructed

the bailiff to inquire about the nature of the juror’s illness. When the bailiff

returned from attempting to retrieve the jury, he noted that the jury foreman had



       1
        We review de novo the district court’s determination of whether the state court decision
contravened clearly established federal law or unreasonably applied federal law under 28 U.S.C.
§ 2254. Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1332 (11th Cir. 2009).
       2
           Render’s motion to submit his reply brief out of time is granted.


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asked for a little more time. Shortly thereafter, the jury returned, indicating it had

reached a verdict.

       Render argued that the court should not proceed given the ill juror’s request.

The state court, however, decided to accept the verdict and poll the jury afterwards.

After announcing the guilty verdict, the jury was polled and confirmed that the

verdict was supported by each member, including the ill juror.

                                                  II.

       In his petition for a writ of habeas corpus before this Court, Render argues

that the state court committed constitutional error in failing to hold a hearing to

determine whether the ill juror should have been retained. According to Render,

federal law3 requires courts to inquire into a juror’s illness. Additionally, Render

argues that prejudice should be assumed because the verdict was rendered soon

after the ill juror asked to be excused. In Render’s view, the close proximity in

time between the verdict and the ill juror’s request demonstrates the juror was

forced to surrender her honest belief in Render’s innocence.

       We disagree. Habeas corpus relief “is a guard against extreme malfunctions

in the state criminal justice system, not a substitute for ordinary error correction

through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (internal
       3
           Specifically, Render relies on the Sixth and Fourteenth Amendments of the Constitution
for his federal law habeas claims. See U.S. Const. amend. VI (“In all criminal prosecutions, the
accused shall enjoy the right to a . . . trial, by an impartial jury . . . .”); U.S. Const. amend. XIV,
§ 1 (“No state shall . . . deprive any person of life, liberty, or property, without due process of
law . . . .”).


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quotation marks omitted). Under § 2254(d)(1) of AEDPA, the petitioner must

prove that a state court adjudicated the merits of his claim in a manner that was

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

Federal law, as determined by the Supreme Court of the United States.” 4 28

U.S.C. § 2254(d)(1); see also Woodford v. Visciotti, 537 U.S. 19, 24, 123 S. Ct.

357, 360 (2002) (per curiam) (establishing that petitioner carries the burden of

proof for habeas claims brought under 28 U.S.C. § 2254(d)).

       First, § 2254(d)(1)’s phrase “clearly established Federal law” refers to

Supreme Court holdings that were in effect at the time of the relevant state court

decision. Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523 (2000).

A state court’s decision is “contrary to” clearly established federal law, only when

it either (1) applies a rule “that contradicts the governing law set forth by Supreme

Court case law,” or (2) reaches a different result from the Supreme Court “when

faced with materially indistinguishable facts.” Ward v. Hall, 592 F.3d 1144, 1155




       4
        Appellant also alleged a violation of 28 U.S.C. § 2254(d)(2) at the conclusion of his
opening brief. There, he asserted that the state court’s decision was “based on an unreasonable
determination of the facts in light of the evidence presented to the State court.” Appellant,
however, has not supported his § 2254(d)(2) contention with any legal or factual argument, and
thus we do not consider it. See, e.g., United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th
Cir. 2003) (“[A] party seeking to raise a claim or issue on appeal must plainly and prominently
so indicate. Otherwise, the issue . . . will be considered abandoned.”); Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (concluding that because a party
“elaborate[d] no arguments on the merits as to this issue in its initial or reply brief,” the “issue is
deemed waived”).


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(11th Cir.) (internal quotation marks omitted), cert. denied, Hall v. Ward, 131 S.

Ct. 647 (2010).

      Second, under § 2254(d)(1), an “unreasonable application of . . . Federal

law” occurs (1) when the state court’s decision does not square with Supreme

Court rulings on “materially indistinguishable facts,” Williams, 529 U.S. at 413, or

(2) or when the state court “unreasonably extends or fails to extend a clearly

established legal principle to a new context,” Ward, 592 F.3d at 1155 (internal

quotation marks omitted). An application of federal law is not unreasonable

simply because an appellate court thinks it incorrect or erroneous. Id. Rather, an

unreasonable application must be “objectively unreasonable,” Williams, 529 U.S.

at 409, such that there is “no possibility fairminded jurists could disagree that the

state court’s decision conflicts with [the Supreme] Court’s precedents,”

Harrington, 131 S. Ct. at 786.

      Here, Render has not met the requirements for habeas relief articulated in 28

U.S.C. § 2254(d). First, the state court did not violate “clearly established Federal

law.” When the jury convicted Render in 1992, Supreme Court precedent did not

clearly require an inquiry into the juror’s illness beyond that which the state court

performed. Hence, the state court did not violate “clearly established Federal law”

on that issue. See, e.g., Anderson v. Sec’y Dep’t of Corr., 462 F.3d 1319, 1327–28

(11th Cir. 2007).



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      Render, however, argues that this Court’s decision in Green v. Zant

established clear federal law requiring the state court to determine in greater depth

whether the ill juror could continue. In Green, a state trial court discharged and

replaced a juror without inquiry three hours into jury deliberations when she fell to

the floor and repeatedly cried, “I can’t do it.” Green v. Zant, 715 F.2d 551, 554–56

(11th Cir. 1983). We vacated the district court’s denial of habeas relief and

remanded for the purpose of conducting an evidentiary hearing on whether the

juror had been capable of continuing prior to her dismissal. Id. at 555–59. But in

concluding that a hearing on remand was appropriate, Green did not articulate a

principle of federal law requiring state courts to conduct searching inquiry into the

capabilities of jurors who wish to be excused. Rather, Green held that substitution

of a juror during deliberations, if done for improper reasons, may constitute a due

process violation. Id. Thus, Render’s reliance on Green is misplaced. Because no

potentially improper juror substitution occurred in Render’s case, the state court

did not violate “clearly established Federal law” within the meaning of § 2254(d).

      Second, the state court did not “unreasonably apply” federal law as it stood

in 1992. The state court instructed the bailiff to ask members of the jury whether

they were capable of proceeding. They were. The state court also polled the jury

after the verdict was announced to ensure each member stood by the verdict. They

did. Federal law, as it existed in 1992, did not demand a specific or more elaborate



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type of inquiry in order to retain a juror under these circumstances. Cf. Green, 715

F.2d at 556 (“Where the disability of the juror is less certain or obvious . . . some

hearing or inquiry into the situation is appropriate to the proper exercise of judicial

discretion.” (emphasis added)). The record shows that the state court

conscientiously inquired into the capacities and convictions of all members of the

jury, and thus did not unreasonably apply federal law in Render’s 1992 trial.

Accordingly, we affirm.

                                          III.

      The district court’s decision denying Render’s petition for habeas corpus is

affirmed.

      AFFIRMED.




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