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                                                                                 [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 14-13772
                              ________________________

                           D.C. Docket No. 1:13-cv-01842-AT



RAFAEL SOLORIO PINEDA,

                                                         Petitioner - Appellant,

versus

WARDEN, CALHOUN STATE PRISON,

                                                         Respondent - Appellee.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________

                                   (September 21, 2015)

Before WILSON and MARTIN, Circuit Judges, and HODGES, ∗ District Judge.

MARTIN, Circuit Judge:

         ∗
         Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
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       Rafael Pineda, serving a thirty-year sentence for trafficking in cocaine,

appeals the District Court’s denial of his petition for habeas corpus under 28

U.S.C. § 2254. After a jury found him guilty, Mr. Pineda moved for a new trial,

alleging that his trial counsel was ineffective for failing to perfect a motion to

suppress key evidence. 1 He claims that the evidence supporting his conviction was

discovered only through an unconstitutional search and seizure, meaning that it

would have been excluded at trial had counsel effectively represented him.

       The search of Mr. Pineda’s apartment was aided by a misstatement made by

the investigating police officers. Specifically, those officers gained entry to Mr.

Pineda’s apartment by telling the property manager that they had observed through

a window that the apartment was abandoned. However, evidence at trial revealed

that the apartment’s layout made it impossible for the officers to have seen

anything. Responding to contact by the officers, the apartment manager

immediately decided to inspect the unit, and asked the officers to go with her for

safety. The officers’ false statement was the primary motivation for her search.

And it was during that search that the officers discovered the strongest evidence of

Mr. Pineda’s guilt.



1
 An ineffective assistance of counsel claim requires a showing that (1) counsel performed
deficiently; and (2) the defendant was prejudiced by counsel’s performance. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).



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       Despite the actions of the police in inducing the search, we must apply the

appropriate standard of review. Given the double deference we must afford the

Georgia Court of Appeals’ decision, Mr. Pineda is not eligible for habeas relief. 2

                                          BACKGROUND

    The critical facts of the search at issue are best summarized by the Georgia

Court of Appeals:

       In January 2009, members of the Sandy Springs Police Department’s
       Crime Suppression Team began an investigation of possible drug
       activity at a house on Angus Trail. On February 12, officers observed
       a Nissan Murano park in the house’s driveway and then leave about
       20 minutes later. Officers followed the car and conducted a traffic
       stop at the entrance to the Glen Lake Apartments complex. The driver
       of the car, Antonio Borja, was placed under arrest and, during a search
       of the car, officers found a garage door remote control that belonged
       to Apartment 6859-B in the Glen Lake complex (“the Glen Lake
       apartment”). The apartment was leased to [Mr. Pineda’s] aunt, and
       [Mr. Pineda], and two of his cousins were named as occupants. A few
       days after Borja’s arrest, officers went to the Glen Lake apartment,
       knocked on the door, and, after receiving no response, looked through
       a window and observed no furniture in the apartment. 3 They went to
       the leasing office and told the complex’s manager what they had done
       and observed, and the manager went with them to determine, as
       required by her job responsibilities, whether the lessee had, in fact,
       moved out of the apartment without giving notice.

              The manager unlocked the apartment’s door and had the
       officers enter in front of her for her safety. As they entered, they
       immediately smelled a “stench” that smelled like rotten food. The
2
 Our holding today is limited to this case’s procedural context, and should not be construed as a
holding that the police’s search would be constitutionally valid in any case other than a petition
brought under § 2254.
3
  Again, the trial court’s finding was that the officers could not have possibly observed anything
through Mr. Pineda’s apartment window.


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      electricity to the apartment had been turned off, and there was rotting
      food in the refrigerator. There was no one in the apartment, nor were
      there any clothes or personal items, and the only things left behind
      were a disheveled sofa, a disassembled bed, and scattered trash. On
      top of the refrigerator, officers found a cereal box in which they
      discovered a wrapped kilogram of cocaine hidden beneath some
      cereal. The officers also discovered four separately packaged
      kilograms of cocaine in the garage. The cocaine and some of the
      abandoned items were seized and examined for fingerprints. A partial
      fingerprint that matched [Mr. Pineda’s] “pinky” finger was found on
      the package of cocaine that had been hidden in the cereal box.
      Investigators secured an arrest warrant for [Mr. Pineda] and, about
      five weeks later, they discovered that [his] aunt was renting an
      apartment in DeKalb County. At the end of March 2009, the
      investigators went to the aunt’s new apartment, where they found and
      arrested [Mr. Pineda].

      A jury convicted Mr. Pineda of drug trafficking. He then hired different

counsel and filed a motion for a new trial, alleging that trial counsel was

ineffective for failing to suppress the cocaine evidence. The trial court held an

evidentiary hearing, after which it denied Mr. Pineda’s motion on the grounds that

counsel’s strategic decision to distance Mr. Pineda from the cocaine was

reasonable and Mr. Pineda suffered no prejudice. The Georgia Court of Appeals

affirmed. It explained that trial counsel was not deficient, and Mr. Pineda lacked

standing to challenge the search, so counsel’s failure to perfect the motion to

suppress did not prejudice him. The court did not analyze the reasonableness of

the search, because that issue was mooted in light of its holding on standing.

      Mr. Pineda filed a § 2254 petition. The District Court adopted the

Magistrate Judge’s Report and Recommendation (R&R), and dismissed Mr.


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Pineda’s petition because the Georgia Court of Appeals’ decision was entitled to

deference. The District Court issued a certificate of appealability on its deference

analysis. The District Court noted concern with trial counsel’s failure to challenge

a critical constitutional violation as well as the police officers’ obvious

misrepresentation that induced the search of Mr. Pineda’s apartment.

                                          ANALYSIS
       Our resolution of this appeal turns on whether the Georgia Court of Appeals’

decision is entitled to deference under the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). Under AEDPA, a state court’s determination is not

entitled to deference if it “(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or (2) resulted in a decision

that was 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). 4 Under

the deferential standard, a state court’s determination that a claim lacks merit bars


4
  To receive deference, a state court’s decision must also be “on the merits.” 28 U.S.C.
§ 2254(d). The Georgia Court of Appeals did not evaluate the constitutionality of the officers’
search. Because the court concluded that Mr. Pineda lacked standing to challenge the search—
meaning he could not have been prejudiced by trial counsel’s inaction—it concluded that the
question of the search’s constitutionality was moot. Contrary to Mr. Pineda’s assertion, the state
court need not analyze every separate part of an ineffective assistance claim for its determination
to be on the merits. Here, the state court engaged in both prongs of the ineffective assistance
analysis, making its decision “on the merits” for purposes of § 2254(d). Cf. Ferrell v. Hall, 640
F.3d 1199, 1224–25 (11th Cir. 2011) (noting that the state court denied a petitioner’s claim on
only the first Strickland prong, and reviewing the second prong de novo).


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federal habeas relief unless no “fairminded jurists” could agree with the court’s

decision. See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011).

      I.           The Georgia Court of Appeals’ Decision Did Not Involve an
                   Unreasonable Interpretation of the Facts

      Mr. Pineda claims that the Georgia Court of Appeals’ decision is not entitled

to deference because it involved three unreasonable determinations of fact. He

alleges these errors: (1) determining that the officers looked into the apartment,

despite the fact that the trial court had found that was impossible; (2) determining

that Mr. Pineda had abandoned his apartment; and (3) concluding that the property

manager entered the apartment as part of her job and took the officers along for

safety, when she was really acting as an instrument of the government.

      On error one, Mr. Pineda correctly points out that the Georgia Court of

Appeals made an incorrect and unreasonable factual finding about the officers’

view of the apartment. The trial court found that such a view was physically

impossible. However, the appeals court’s order remains sufficiently supported

even without this evidence. The District Court reached a similar conclusion:

though the statement about the officers’ observation was error, the Georgia Court

of Appeals’ order is entitled to deference because it can be based on reasonable

factual determinations, notwithstanding any evidence allegedly seen through the

window. See Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011) (asking

whether the state court’s ultimate conclusion can rest on a sufficient factual basis


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apart from any erroneous factfindings). The finding about the officers’ purported

view could only have impacted an analysis of the search’s constitutionality under

the prejudice prong of Strickland. The Georgia Court of Appeals never reached

that question because Mr. Pineda lacked standing. As discussed below, reasonable

jurists could agree that Mr. Pineda abandoned the apartment and therefore did not

have standing to challenge the constitutionality of the search. This factual error

does not impact the outcome of his appeal.

      Alleged errors two and three were not unreasonable determinations of fact.

Reasonable jurists could conclude that Mr. Pineda had abandoned his apartment at

the time the property manager opened the door because there was a smell of rotting

food, the electricity was off, he had given away his garage access remote, he lived

in another apartment, and there was almost no remaining furniture or property in

the apartment. Similarly, reasonable jurists could conclude that the property

manager entered the apartment as part of her job, and not solely to assist with the

officers’ investigation. The property manager testified that she made clear to

tenants that she had the right to enter apartments at any time to check for

abandonment, and that she made the decision herself to enter Mr. Pineda’s

apartment, asking the officers to accompany her for safety purposes. The manager

also testified that she has a policy of investigating abandoned apartments, and that

she had suspicions about Mr. Pineda’s apartment for some time. Despite strong



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evidence suggesting that the manager’s search was motivated by the officers’

misrepresentation, there is enough evidence in the record to support the conclusion

that she had an interest separate from that of the officers in entering the apartment

and asked them to accompany her solely for safety.

      II.           The Georgia Court of Appeals’ Decision Was Not an
                    Unreasonable Application of Supreme Court Precedent

      Mr. Pineda next claims that the Georgia Court of Appeals’ decision should

not be given deference because it was an unreasonable application of Strickland.

Mr. Pineda argued that his trial counsel was ineffective for not perfecting a motion

to suppress cocaine found in his former apartment. To succeed on that claim, Mr.

Pineda must show that his counsel was deficient, and that he was prejudiced as a

result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The prejudice must be such

that the result of his proceeding would have been different but for counsel’s error.

Id. In the context of a motion to suppress, this means that he must make a “strong

showing” that the evidence would have been suppressed had counsel properly filed

a motion. “Establishing that a state court’s application of Strickland was

unreasonable under § 2254(d) is all the more difficult. The standards . . . are both

highly deferential, and when the two apply in tandem, review is doubly so.”

Harrington, 562 U.S. at 105, 131 S. Ct. at 788 (quotations omitted).

      The Georgia Court of Appeals reasonably determined that trial counsel was

not deficient for failing to challenge the cocaine evidence. To show that trial


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counsel was deficient, Mr. Pineda must establish that counsel made errors so

serious that she was not functioning as the “counsel” guaranteed by the

Constitution. Strickland, 466 U.S. at 687, 106 S. Ct. at 2064. We review counsel’s

performance under a “highly deferential” standard, asking whether her decision

was outside the range of competent counsel, considering the conduct from her

perspective at the time. Id. at 689–90, 106 S. Ct. at 2065–66.

       At the hearing on Mr. Pineda’s motion for a new trial, trial counsel testified

that she did not challenge the evidence because she did not think Mr. Pineda would

have standing, and because her trial strategy was to convince the jury that Mr.

Pineda did not live in the apartment and therefore could not have owned the

cocaine.

       Reasonable jurists could agree that the first reason trial counsel gave for her

decision—that Mr. Pineda lacked standing—was within the range of competent

representation.5 The Georgia Court of Appeals noted that trial counsel knew that

Mr. Pineda had not lived in the apartment for several weeks; that he had a new

lease with his aunt at another apartment; and that he had given away his garage

remote and had no access to the apartment. The court concluded that counsel’s



5
  In contrast, trial counsel’s second reason—not wanting to jeopardize her chosen trial strategy—
was unreasonable. As the District Court correctly explained, trial counsel could have challenged
the search in a separate hearing that would not have been admissible at trial. See Simmons v.
United States, 390 U.S. 377, 394, 88 S. Ct. 967, 976 (1968). Thus, a decision to not challenge
the search solely to avoid sacrificing her trial strategy would have been deficient performance.


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inaction “was the result of conscious, reasonable strategic decisions she made . . .

on the defendant’s undisputed statements to her.”

      The Magistrate Judge concluded that trial counsel’s decision was “based . . .

on a misunderstanding of the law, i.e., her failure to recognize that petitioner had

standing to challenge the search as a trespass based on his property interest in the

apartment.” Similarly, the District Court found that trial counsel’s performance

was “unreasonably deficient,” and that her “failure to recognize [Mr. Pineda’s

property interest as a] basis for standing to challenge the search does not support a

finding that her failure to pursue the suppression motion was a reasonable strategic

decision.” Both judges cited United States v. Jones, 565 U.S. ___, ___, 132 S. Ct.

945, 949, 952 (2012), for the proposition that Mr. Pineda had standing under the

common-law trespassory test because his rent was paid through the end of the

month.

      First, Jones was issued in November 2012, more than two years after Mr.

Pineda’s trial in August 2010. We would not find counsel deficient for failing to

anticipate the Supreme Court’s clarification of the then-binding “reasonable

expectation of privacy” test from Katz v. United States, 389 U.S. 347, 88 S. Ct.

507 (1967). See United States v. Ardley, 273 F.3d 991, 993 (11th Cir. 2001) (“In

this circuit, we have a wall of binding precedent that shuts out any contention that

an attorney's failure to anticipate a change in the law constitutes ineffective



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assistance of counsel.”). Expecting trial counsel to have anticipated Jones was

error.

         Second, and most importantly, standing to challenge a trespass can be lost

by way of abandonment. Both the Magistrate Judge and the District Court

impliedly assumed that standing was automatic if Mr. Pineda maintained his

possessory interest in the apartment. This is simply not an accurate statement of

law. Even though he had paid rent, Mr. Pineda could (and likely did) abandon his

possessory interest in a way that would eliminate his standing to challenge the

fruits of the search. See United States v. Brazel, 102 F.3d 1120, 1147–48 (11th

Cir. 1997) (evaluating whether a tenant maintained a legitimate expectation of

privacy in a leased apartment); see also 1 Wayne LaFave, Search and Seizure: A

Treatise on the Fourth Amendment § 2.3(a) (5th ed. 2014) (“The question of

abandonment for Fourth Amendment purposes does not turn on strict property

concepts but on whether the accused has relinquished his interest in the property.

. . . This principle has been applied to find abandonment where a tenant has left

residential premises even though he may retain the lawful right to possession.”

(quotation omitted)). Trial counsel did not unreasonably misunderstand the law;

rather, she correctly understood that a person can abandon his possessory interest

in a way that eliminates his standing to challenge a search.




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      Both the Magistrate Judge’s R&R and the District Court’s Order collapse the

question of whether Mr. Pineda abandoned his apartment for purposes of standing

with the analysis of whether the search was constitutional because the apartment

was abandoned. Our analysis of abandonment for standing purposes looks to the

totality of the circumstances, asking whether the property was in fact abandoned at

the time of the search. In contrast, when determining whether a search was

reasonable, we review abandonment from the limited perspective of the officer at

the time of the search. LaFave, § 2.3(a) at n.10 (“When the question is one of

standing, the perspective of the inquiry regarding the abandonment changes. The

object of measurement shifts from reasonable appearances to historic reality. What

finally matters shifts from what the policeman reasonably believed out on the street

to what the suppression hearing judge ultimately knows in the courtroom.”

(quotation omitted)).

      The R&R explains that Mr. Pineda had a possessory interest in the property

because his rent was current, but then analyzes abandonment from the officers’

perspective. The District Court did not make an explicit finding about standing,

but it evaluated abandonment by looking to what a reasonable officer would have

known at the time of the search—an analysis reserved for the merits, not for

standing. This was error.




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      Had trial counsel sought to suppress the apartment search, the court would

have weighed Mr. Pineda’s ongoing possessory interest with other evidence of his

abandonment. As Mr. Pineda points out, trial counsel had additional (and

privileged) information that she learned from speaking with him, including that he

had moved out of the apartment 8–10 weeks earlier and that he had no access to

the apartment because he gave his entry remote to his friend. Though this precise

information may not have been admissible at trial, the government did have access

to similar evidence. This includes the condition of the apartment at the time of the

search, Mr. Pineda’s new address where he was arrested, and the fact that another

person was in possession of the remote assigned to Mr. Pineda’s old apartment.

Even assuming that the government had no additional evidence, this would have

been enough for the trial court to conclude that Mr. Pineda had “voluntarily

discarded, left behind, or otherwise relinquished his interest in the property in

question so that he could no longer retain a reasonable expectation of privacy with

regard to it at the time of the search.” United States v. Lehder-Rivas, 955 F.2d

1510, 1522 (11th Cir. 1992) (emphasis omitted) (quotation omitted) (analyzing

standing). See also United States v. Ramos, 12 F.3d 1019, 1024–25 (11th Cir.

1994) (evaluating the same question in the context of a leased condominium and

concluding that officers had the right to be in the abandoned premises, but not to

open a locked briefcase found inside).



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       It is certainly possible that Mr. Pineda’s trial counsel could have argued

against abandonment, leading the trial court to find he had standing. But that is not

the analysis we must conduct under AEDPA. Rather, on these facts, we must only

conclude that reasonable jurists could agree that counsel was not deficient when

she did not perfect a motion to suppress because she thought Mr. Pineda lacked

standing. Because the Georgia Court of Appeals reasonably determined that trial

counsel rendered sufficient performance, we affirm the District Court’s order

dismissing Mr. Pineda’s habeas petition. 6

    AFFIRMED.




6
  Because Mr. Pineda did not make a sufficient showing on the performance prong, we need not
reach the question whether the Georgia Court of Appeals’ prejudice determination involved an
unreasonable application of Supreme Court precedent. Strickland, 466 U.S. at 697, 106 S. Ct. at
2069.



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