           Case: 17-12427   Date Filed: 07/19/2018   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-12427
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 0:16-cv-62836-BB



ANGEL LOPEZ,

                                                          Petitioner-Appellant,

                                versus

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

                                                      Respondents-Appellees.

                      ________________________

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

                             (July 19, 2018)



Before MARCUS, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
                 Case: 17-12427        Date Filed: 07/19/2018        Page: 2 of 6


       Florida prisoner Angel Lopez appeals the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition. Lopez contends his trial counsel’s choice of

an insanity defense was unreasonable. He asserts the evidence supported a theory

of self-defense, and his counsel was ineffective in choosing a defense strategy. 1

After review,2 we affirm the district court.

       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). Because the state

appellate court affirmed without discussion Lopez’s claim that trial counsel was

ineffective for failing to develop and utilize the defense of self-defense, we “look


       1
          The district court granted Lopez a certificate of appealability as to all of the grounds he
raised in his § 2254 petition. On appeal, however, Lopez limits his arguments to his counsel’s
ineffectiveness regarding his choice of defense.
       2
          We review the district court’s denial or grant of a § 2254 habeas petition de novo.
McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Ineffective-assistance-of-counsel
claims are mixed questions of law and fact, which we review de novo. 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 (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.
(quotation marks omitted).




                                                  2
              Case: 17-12427     Date Filed: 07/19/2018    Page: 3 of 6


through” to the state post-conviction court’s denial of Lopez’s Florida Rule of

Criminal Procedure 3.850 motion as the state court decision on the merits. See

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) (explaining if the last state court to

decide a prisoner’s federal claim does not set out its reasons for denying the

prisoner’s claim, we “look through” to the last related state-court decision that

provides a relevant rationale). We presume the unexplained state court decision

adopted the same reasoning unless the State rebuts that presumption. Id.

      To succeed on an ineffective-assistance-of-counsel claim, a defendant must

show (1) his counsel’s performance was deficient, and (2) the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). “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. Sec’y for Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009)

(quotation marks omitted). 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. A reasonable probability is one sufficient

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

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

at 693.


                                          3
              Case: 17-12427     Date Filed: 07/19/2018    Page: 4 of 6


      The district court did not err in denying Lopez’s § 2254 petition because the

state post-conviction court’s denial of his ineffective-assistance-of-counsel claim

was not an unreasonable application of Strickland. The state post-conviction trial

court’s determination that trial counsel’s decision to argue both self-defense and

insanity did not prejudice Lopez because the evidence did not support a

meritorious self-defense theory alone was not contrary to, or an unreasonable

application of federal law, nor was it based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.

      The evidence Lopez points to on appeal does not establish he was in

imminent fear of danger at the time of the shooting. See Pinkney v. Sec’y, DOC,

876 F.3d 1290, 1295 (11th Cir. 2017) (“Under Florida law a person is justified in

using deadly force if he reasonably believes that it is necessary to prevent

imminent death or great bodily harm to himself or another.” (quotation marks

omitted)). Even if the evidence supports that Lopez rationally believed he was in

danger in the parking lot and while he was leaving the parking lot, he did not shoot

Yahtavian Bellamy at that time. The evidence did not establish a rational fear of

harm at the relevant time that Lopez pulled alongside Bellamy’s car, shooting into

it several times. Lopez himself testified that he could not recall shooting into

Bellamy’s car, thus making a self-defense theory nearly impossible to prove in the

absence of Lopez’s inability to rationalize what he was thinking at the time of the


                                          4
               Case: 17-12427     Date Filed: 07/19/2018    Page: 5 of 6


shooting. Additionally, in concluding the state court did not unreasonably apply

Strickland, the district court did not err in ascribing more weight to Deputy Scott

Popick’s and Brandon Burton’s testimony over Erika Jayska’s testimony. Jayska’s

testimony, even if strongly credited, cannot overcome Burton’s and Popick’s, due

to her limited visibility from the rearview mirror and her incomplete picture of the

entire actual shooting. See id.

      Lastly, counsel did present the self-defense theory to the jury. Despite

counsel’s admission that Lopez had a delusional belief that he was in imminent

fear of danger, counsel presented evidence of self-defense. The jury was exposed

to all of the defense witnesses who testified they were in fear of Bellamy in the

parking lot and received a self-defense instruction, but still rejected it. As the jury

heard the self-defense theory and rejected it, there was not a reasonable probability

that presenting a theory of self-defense alone instead of presenting both insanity

and self-defense would have changed the outcome of the proceeding. See

Strickland, 466 U.S. at 694.

      As Lopez’s claim does not meet the prejudice prong of Strickland, we need

not address whether his counsel’s performance was also deficient. See Holladay v.

Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (explaining if the defendant makes an

insufficient showing on the prejudice prong, we need not address the performance

prong, and vice versa).


                                           5
              Case: 17-12427     Date Filed: 07/19/2018   Page: 6 of 6


      In sum, there was a reasonable basis for the state court to conclude Lopez’s

counsel’s choice of defense did not prejudice him, and the district court did not err

when it determined the state-post-conviction court’s denial of Lopez’s ineffective-

assistance-of-counsel claim was not an unreasonable application of Strickland.

      AFFIRMED.




                                          6
