                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                       No. 11-13597                  MARCH 1, 2012
                                   Non-Argument Calendar               JOHN LEY
                                 ________________________               CLERK

                             D.C. Docket No. 1:10-cv-23344-MGC

LUIS A. HERNANDEZ,

lllllllllllllllllllll                                              Petitioner-Appellant,

                                            versus

FLORIDA DEPARTMENT OF CORRECTIONS,

lllllllllllllllllllll                                             Respondent-Appellee.

                                ________________________

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

                                       (March 1, 2012)

Before MARCUS, MARTIN and FAY, Circuit Judges.

PER CURIAM:

         Luis Hernandez, a Florida prisoner serving a total life sentence after being

convicted by a jury on charges of aggravated battery, burglary with assault, armed
carjacking, armed robbery, and armed kidnaping, appeals pro se the district court’s

denial of his federal habeas petition filed pursuant to 28 U.S.C. § 2254. For the

reasons set forth below, we affirm.

                                      I. Facts

      On July 31, 2002, an armed man wearing a ski mask and sunglasses robbed

Stella Von Klan at her home, causing substantial injuries to her head and hand.

The robber stole Von Klan’s jewelry and car. During the robbery, Von Klan

managed to take off the robber’s sunglasses, which the police later found at the

scene of the crime. Hernandez was subsequently arrested and charged as the

perpetrator.

      At Hernandez’s trial, the state called several witnesses, including Adriana

Kristaly, a forensic biologist and an expert in DNA analysis. Kristaly testified that

she obtained a DNA sample from the sunglasses and found a mixture of DNA

profiles in the sample. The DNA profiles of Von Klan, her husband, and

Hernandez could not be excluded from the DNA mixture. However, Kristaly

could not say that the DNA sample matched any of the three individuals.

      The state also introduced the testimonies of two police officers, Anthony

Feria and Luis Iglesis. Feria testified that on August 15, 2002, after Hernandez’s

arrest, Feria interviewed him at the police station along with Iglesis. At this

                                          2
interview, after being read his Miranda1 rights, Hernandez refused to sign the

Miranda waiver form. However, he verbally waived his rights and admitted his

guilt, explaining in detail how he robbed Von Klan. After Hernandez confessed,

Feria and Iglesis went with him to search for the stolen jewelry and car, but did not

find anything. When they returned to the police station, Feria met the lead

detective in the case, Kimberly Llambes, and told her about Hernandez’s

confession. Llambes, Feria, and Hernandez then went back into the interview

room, where Hernandez signed a Miranda waiver form and provided a brief

synopsis of his earlier confession. Feria testified that he could not recall whether

Iglesis was present during the latest confession, but believed Iglesis was not there.

Iglesis essentially corroborated Feria’s testimony and stated that, after the search

for the stolen property, Iglesis had no more involvement in the case.

      Twice during the trial, the court asked Hernandez and his counsel whether

they wanted jury instructions on any lesser-included offenses. Both Hernandez

and his counsel assured the court that they did not. In instructing the jury, the

court described the offenses charged in each count of the state’s information

(battery, burglary, carjacking, robbery, and kidnaping, respectively), the elements

of those offenses, and the meaning of various aggravating factors. Specifically,


      1
          Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                             3
with regard to Count 3, the court told the jury: “Before you can find the defendant

guilty of Carjacking as charged in Count Three of the Information, the State must

prove the following three elements beyond a reasonable doubt.” The court

explained all the elements of carjacking and the various terms contained in the

definition of the offense.

      The court further instructed the jurors that it was their responsibility to

decide what evidence was reliable and not reliable. The court described several

factors that the jury should look for in assessing the credibility of witnesses and

stated: “You may rely upon your own conclusion about the witness. A juror may

believe or disbelieve all or any part of the evidence or the testimony of any

witness.”

      When instructing the jury on the state’s burden of proof, the court explained

that the defendant is presumed innocent unless that presumption “has been

overcome by the evidence to the exclusion of and beyond a reasonable doubt.”

The court further explained that “mere possible doubt, a speculative, imaginary or

forced doubt” must not influence the jurors to return a not-guilty verdict if they

have “an abiding conviction of guilt.” The court then stated, according to the trial

transcript:

      On the other hand, if, after carefully considering, comparing and

                                          4
      weighing all the evidence, there is not an abiding conviction of guilt,
      or, if, having a conviction, it is one which is not stable but one which
      waivers and vacillates, then the charge is proved beyond every
      reasonable doubt and you must find the defendant not guilty because
      the doubt is reasonable.

In the written jury instructions, however, the last clause of the second paragraph

above provided: “then the charge is not proved beyond every reasonable doubt.”

Subsequently, the state obtained an affidavit from the court reporter, who affirmed

that she erroneously transcribed the jury instruction at issue, and that the correct

reading should be, “Then the charge is not proved.”

      The court gave the jury a printed copy of the instructions and the charging

information to take to the jury room. The court also provided the jury with a

verdict form, which asked the jury to check a box labeled guilty or not guilty on

each count. With regard to Count 3, the verdict form designated the charged

offense as “Robbery/Carjacking.” In explaining the verdict form to the jury, the

court stated: “The verdict form for Count Three is Carjacking.” The jury

ultimately found Hernandez guilty on all counts.

      After Hernandez’s direct criminal proceedings and his state post-conviction

proceedings ended, he filed the instant § 2254 habeas petition in the district court,

alleging multiple claims of ineffective assistance of counsel. In relevant part,

Hernandez alleged that his counsel rendered ineffective assistance by (1) failing to

                                           5
request Florida’s Standard Instruction 3.9(a) on the testimony of expert witnesses,

as a result of which the jury may have given undue weight to the DNA expert’s

opinion testimony; (2) failing to object to the apparently erroneous instruction on

reasonable doubt; (3) failing to impeach or otherwise challenge the testimonies of

officers Feria and Iglesis because they testified inconsistently on whether Iglesis

was present during Hernandez’s confession; and (4) failing to object to the

ambiguous verdict form concerning Count 3 of the charging information. The

district court denied Hernandez’s § 2254 petition but granted a certificate of

appealability on the above four claims.

                                    II. Analysis

       We review the district court’s denial of a § 2254 petition de novo, but

accord deference to the state court’s decision on the merits of a claim. Davis v.

Jones, 506 F.3d 1325, 1331 (11th Cir. 2007). Federal courts may not grant habeas

relief on claims previously adjudicated on the merits in a state court unless the

state court’s decision was “contrary to, or involved an unreasonable application of,

clearly established federal law, as determined by the Supreme Court of the United

States,” or “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.”




                                          6
28 U.S.C. § 2254(d); Davis, 506 F.3d at 1331.2

       To prevail on a claim of ineffective assistance of counsel, a defendant must

establish two elements, namely, (1) that counsel’s performance was deficient, and

(2) that the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

The standard for measuring attorney performance is whether counsel acted

reasonably under the “prevailing professional norms,” and a court “must indulge a

strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 688-89, 104 S.Ct. at 2065. To establish

prejudice, a defendant must show 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.

       Hernandez failed to meet the elements of Strickland on all four of his

ineffective-assistance-of-counsel claims. First, Hernandez failed to show any



       2
          We note that Hernandez’s first claim, regarding the instructions on expert witness
testimony, may not have been addressed on the merits in the state courts. See Bellizia v. Florida
Dep’t of Corr., 614 F.3d 1326, 1328 n.1 (11th Cir. 2010) (stating that § 2254(d) deference is not
required if the state court failed to address the merits of a petitioner’s claim). However, we need
not decide whether § 2254(d) deference is due on this issue, as we can readily deny Hernandez
claim after reviewing it de novo. See Berghuis v. Thompkins, 560 U.S. __, __, 130 S.Ct. 2250,
2265, 176 L.Ed.2d 1098 (2010) (stating that a court may deny a habeas petition on de novo
review when it is not clear whether deference applies, as the petitioner will not be entitled to
habeas relief if his claim is rejected on de novo review).

                                                 7
prejudice resulting from his counsel’s failure to request a jury instruction on

expert testimony. Florida’s standard instruction on expert witnesses provides:

      Expert witnesses are like other witnesses, with one exception — the
      law permits an expert witness to give [his] [her] opinion.

      However, an expert’s opinion is reliable only when given on a subject
      about which you believe [him] [her] to be an expert.

      Like other witnesses, you may believe or disbelieve all or any part of
      an expert’s testimony.

Florida Standard Jury Instruction 3.9(a) (adopted in 1981). Hernandez argues that,

absent this instruction, the jury may have given undue weight to Kristaly’s

testimony regarding the DNA found on the perpetrator’s sunglasses. However, the

trial court instructed the jurors that it was up to them to decide what evidence was

reliable or unreliable. The court also described several factors to be considered in

evaluating the testimony of witnesses and told the jurors that they “may believe or

disbelieve all or any part of the evidence or the testimony of any witness.” In light

of these instructions, it is highly unlikely that the jury believed that it had to accept

Kristaly’s testimony as true. See Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct.

727, 733, 145 L.Ed.2d 727 (2000) (“A jury is presumed to follow its

instructions.”). Accordingly, Hernandez failed to show a reasonable probability

that, but for his counsel’s failure to request instruction 3.9(a), the outcome of the



                                            8
trial would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. at

2068.

        Second, Hernandez failed to show that his counsel acted deficiently by not

objecting to the apparently erroneous instruction on reasonable doubt. The

affidavit of the court reporter, coupled with the written instructions, indicates that

the court correctly instructed the jury on the state’s burden of proof and that the

error reflected in the trial transcript—omission of the word “not”—occurred only

in transcription. In any event, in light of the court’s other instructions on

reasonable doubt, no reasonable jury could have construed the court’s erroneous

statement literally, especially after looking at the correct phrasing in the written

instructions. Thus, even if counsel was deficient for not objecting to the error,

Hernandez failed to establish any prejudice.

        Third, Hernandez’s counsel did not perform deficiently by failing to

challenge or impeach the testimonies of officers Feria and Iglesis. A review of the

transcript does not reveal any inconsistencies in their statements about whether

Iglesis was present during Hernandez’s confession. Both Feria and Iglesis

testified that Iglesis was present during the initial confession, at which Hernandez

refused to sign the Miranda waiver form. Both Feria and Iglesis also indicated

that Iglesis was not present during the second confession, which occurred after the

                                           9
search for the victim’s jewelry and car, and during which Hernandez actually

signed the Miranda waiver form. Thus, Hernandez’s counsel had no reason to

challenge the officers’ testimonies.

      Finally, Hernandez failed to show any prejudice stemming from his

counsel’s failure to challenge the verdict form on Count 3. Hernandez argues that

he suffered prejudice because the ambiguity in the verdict form precluded him

from being convicted on carjacking’s lesser-included offense, that is, robbery. See

Baynham v. State, 862 So.2d 808, 808-10 (Fla. Dist. Ct. App. 2003) (holding that

robbery is a lesser-included offense of carjacking). However, Hernandez himself

expressly declined to instruct the jury on any lesser-included offenses. Thus, he

cannot now complain that he was denied the opportunity to be convicted of

robbery rather than carjacking on Count 3 of the information. See Leverett v.

Spears, 877 F.2d 921, 924 (11th Cir. 1989) (holding that the doctrine of invited

error precluded a habeas petitioner from challenging a jury instruction on a lesser-

included offense, as the petitioner had requested the instruction in the trial court).

      To the extent Hernandez argues that the inclusion of robbery on the verdict

form prevented him from being acquitted on Count 3 (which charged carjacking),

he again failed to show prejudice. The district court instructed the jury on the

elements of carjacking with respect to Count 3, told the jury that the “verdict form

                                          10
for Count Three is Carjacking,” and provided the jury with the written instructions

and the charging information. Thus, the jurors understood that they would have to

acquit Hernandez on Count 3 if the evidence was insufficient to prove all the

elements of carjacking beyond a reasonable doubt. See Weeks, 528 U.S. at 234,

120 S.Ct. at 733. Accordingly, Hernandez failed to show a reasonable likelihood

of a different outcome but for counsel’s failure to object to the verdict form. See

Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

      Because Hernandez failed to establish all the elements of Strickland with

respect to any of his claims, the state court did not unreasonably apply federal law

and did not unreasonably determine the facts in denying his claims of ineffective

assistance of counsel. See 28 U.S.C. § 2254(d); Davis, 506 F.3d at 1331.

Accordingly, we affirm the district court’s denial of his § 2254 petition.

      AFFIRMED.




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