            Case: 13-13385   Date Filed: 05/27/2014   Page: 1 of 9


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13385
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 6:12-cv-00116-BAE-JEG



DAVID ICENHOUR,

                                                           Petitioner-Appellant,

                                   versus

JASON MEDLIN,
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,

                                                        Respondents-Appellees.

                       ________________________

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

                              (May 27, 2014)

Before PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:
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          David Icenhour, a Georgia prisoner serving a 20-year imprisonment

sentence, appeals the district judge’s denial of his petition for writ of habeas corpus

under 28 U.S.C. § 2254. We affirm.

                                        I. BACKGROUND

          In 2004, Icenhour was charged with aggravated battery on a correctional

officer and interference with government property, in violation of Georgia state

law. Ga. Code Ann. §§ 16-5-24; 16-7-24. Prior to trial, defense counsel requested

the pattern jury instruction on reasonable doubt, 1 but the state-trial judge gave a



1
    The requested pattern jury instruction read:

                  This Defendant is presumed to be innocent until proven guilty. The
          Defendant enters upon the trial of the case with a presumption of innocence in his
          favor. This presumption remains with the Defendant until it is overcome by the
          state with evidence which is sufficient to convince you beyond a reasonable doubt
          that the Defendant is guilty of the offense charged.
                  No person shall be convicted of any crime unless and until each element
          of the crime is proven beyond a reasonable doubt and to a moral and reasonable
          certainty.
                  The burden of proof rests upon the state to prove every material allegation
          of the indictment and every essential element of the crime charged beyond a
          reasonable doubt.
                  There is no burden of proof upon the Defendant whatever, and the burden
          never shifts to the Defendant to prove innocence.
                  However, the state is not required to prove the guilt of the accused beyond
          all doubt or to a mathematical certainty. Moral and reasonable certainty is all that
          can be expected in a legal investigation. A reasonable doubt means just what it
          says. It is a doubt of a fair-minded juror, honestly seeking the truth. It is a doubt
          based upon common sense and reason. It does not mean a vague or arbitrary
          doubt, but is a doubt for which a reason can be given, arising from a consideration
          of the evidence, a lack of evidence, a conflict in the evidence, or any combination
          of these.
                  If after giving consideration to all the facts and circumstances of this case,
          your minds are wavering, unsettled or unsatisfied, then that is a doubt of the law,
          and you should acquit the Defendant; but, if that doubt does not exist in your
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slightly altered instruction instead.2 Defense counsel reserved objections to the

jury instructions but did not specifically object to the reasonable-doubt charge.

The jury convicted Icenhour on both counts.

          Icenhour subsequently retained new counsel and moved for a new trial on

the basis his trial counsel had been ineffective for failing to ascertain his mental-

health history and had allowed him to take the witness stand and testify. The




          minds as to the guilt of the accused, then you would be authorized to convict the
          Defendant.
                 If the state fails to prove the Defendant’s guilt beyond a reasonable doubt,
          it would be your duty to acquit the Defendant.

R at 540.
2
    The trial judge’s instruction read:

                  The defendant enters upon the trial of a criminal case with the
          presumption of innocence in his favor. This presumption of innocence remains
          with him until and unless the State shall overcome and remove it by the
          introduction of evidence and proof to you sufficient to convince your minds
          beyond a reasonable doubt of his guilt.
                  However, the State is not required to prove the defendant guilty beyond all
          doubt or to a mathematical certainty.
                  A reasonable doubt means just what it says. It is not an imaginary,
          fanciful or arbitrary doubt; it is not a bare possibility of doubt; but it is a doubt of
          a fair-minded juror honestly seeking the truth. It may arise from the evidence,
          from a lack of the evidence, from a conflict in the evidence, or from the
          defendant’s testimony.
                  The burden of proof is on the State to prove every material allegation of
          this indictment and every essential element of the crimes charged beyond a
          reasonable doubt. There is no burden of proof upon this defendant whatsoever
          and the burden of proof never shifts to the defendant to prove that he is innocent.
                  Under our law, he is presumed to be innocent and remains so until or
          unless the State proves his guilt beyond a reasonable doubt.

R at 340-41.
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motion was denied and affirmed on appeal. Icenhour v. State, 659 S.E. 2d 858

(Ga. Ct. App. 2008).

      In March 2009, Icenhour filed an amended application for writ of habeas

corpus in Georgia state court and raised five grounds for relief. Icenhour argued he

had received ineffective assistance of appellate counsel when his appellate counsel

failed to raise an ineffective-assistance-of-trial-counsel claim based on trial

counsel’s failure to object to the trial judge’s jury instruction on reasonable doubt.

Because the trial judge’s reasonable-doubt charge omitted several important

sentences from the suggested pattern-jury instruction, Icenhour asserted it was

constitutionally deficient.

      The state post-conviction judge denied Icenhour’s habeas corpus application

and found Icenhour had failed to demonstrate that his appellate counsel’s

performance was deficient under Strickland v. Washington, 466 U.S. 668 (1984),

because the trial judge’s reasonable-doubt charge was proper. The post-conviction

judge also found Icenhour had failed to demonstrate his trial counsel had been

ineffective for failing to object to the reasonable-doubt charge, because his trial

counsel had reserved objections to the charges given. Icenhour subsequently filed

an application for a certificate of probable cause with the Supreme Court of

Georgia, which denied the application without discussion.




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      In December 2012, Icenhour filed a § 2254 habeas petition and raised three

grounds for ineffective assistance of appellate counsel. He argued he had received

ineffective assistance of appellate counsel and asserted the trial judge’s charge on

reasonable doubt had been incomplete and had omitted important parts of the

pattern charge.

      The district judge denied Icenhour’s § 2254 petition. The judge found

Icenhour’s assertions were conclusory, and he had provided no law or facts which

revealed, but for appellate counsel’s alleged ineffective assistance, the outcome of

his appeal would have been different. See Strickland, 466 U.S. at 694. The judge

granted a certificate of appealability (“COA”) on the following issue:

      Whether, given AEDPA’s deference to state court decisions,
      Icenhour’s appellate counsel’s failure to raise ineffective assistance of
      trial counsel based on trial counsel’s failure to object to the trial
      court’s reasonable doubt instruction itself constituted ineffective
      assistance of appellate counsel.

R at 824 (referencing 28 U.S.C. § 2254(d)).

                                 II. DISCUSSION

      Our review in § 2254 proceedings is limited to the issues specified in the

COA. Williams v. McNeil, 557 F.3d 1287, 1290 & n.4 (11th Cir. 2009). To obtain

review beyond the scope of the COA, the petitioner must move to expand the

COA. See Hodges v. Att’y Gen., 506 F.3d 1337, 1339 (11th Cir. 2007) (noting

petitioner could have moved for reconsideration of order denying a COA and


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asked for expansion of the COA). A petitioner abandons arguments not developed

in his brief on appeal. See Davis v. Jones, 506 F.3d 1325, 1330 n.8 (11th Cir.

2007) (recognizing, because petitioner had failed to develop an argument that the

state court made an unreasonable determination of the facts under § 2254(d)(2) by

not challenging any specific factual finding in his brief on appeal, he had

abandoned the argument).

      Icenhour does not address the certified issue on appeal. In his counseled

brief, he instead changes the nature of his argument. He concedes his trial counsel

properly preserved an objection to the reasonable-doubt instruction and argues his

appellate counsel was ineffective for failing to challenge the reasonable-doubt

instruction directly on appeal. Because Icenhour raises an issue not specified in

the COA and has not moved to expand the scope of the COA, we need not consider

his argument on appeal. See Williams, 557 F.3d at 1290 n.4; Hodges, 506 F.3d

at 1339. Since he does not provide any argument or law regarding the issue

actually specified in the COA, we deem that issue abandoned. See Davis, 506 F.3d

at 1330 n.8.

      Because the trial judge’s reasonable-doubt instruction was constitutionally

acceptable, Icenhour has failed to demonstrate his appellate counsel’s performance

was deficient under Strickland. An ineffective-assistance-of-counsel claim under

Strickland is a mixed question of law and fact and is subject to de novo review.


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Brooks v. Comm’r, Ala. Dep’t of Corr., 719 F.3d 1292, 1300 (11th Cir. 2013).

Pursuant to AEDPA, a federal judge may not grant a state prisoner habeas relief on

a claim the state judge denied on the merits unless the state judge’s decision: (1)

“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) “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).

      The Sixth Amendment provides a criminal defendant shall have the right to

“the Assistance of Counsel for his defence.” U.S. Const. amend. VI. To succeed

on an ineffective-assistance claim under Strickland, a petitioner must show his

Sixth Amendment right to counsel was violated because (1) his attorney’s

performance was deficient, and (2) the deficient performance prejudiced

his defense. Strickland, 466 U.S. at 687, 697. A court need not “address both

components of the inquiry if the defendant makes an insufficient showing on one.”

Id. at 697.

      Claims of ineffective assistance of appellate counsel are governed by the

same standards applied to trial counsel under Strickland. Brooks, 719 F.3d

at 1300. Under the Strickland standard, counsel’s performance is deficient if it

falls below an objective standard of reasonableness. Strickland, 466 U.S. at 688.

Appellate counsel is not ineffective for failing to raise a non-meritorious claim on


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direct appeal. Diaz v. Sec., Dep’t of Corr., 402 F.3d 1136, 1144-45 (11th Cir.

2005). Prejudice occurs when there 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.

      In a criminal case, the government must prove each element of a charged

offense beyond a reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 5 (1994). The

beyond-a-reasonable-doubt standard is a requirement of due process, “but the

Constitution neither prohibits trial courts from defining reasonable doubt nor

requires them to do so as a matter of course.” Id. As long as a trial judge

“instructs the jury on the necessity that the defendant’s guilt be proved beyond a

reasonable doubt, the Constitution does not require that any particular form of

words be used in advising the jury of the government’s burden of proof.” Id.

(citation omitted). Taken as a whole, the jury instructions must convey the concept

of reasonable doubt correctly to the jury. Id. When reviewing the correctness of

reasonable-doubt charges, the inquiry is “whether there is a reasonable likelihood

that the jury understood the instructions to allow conviction based on” a lower

burden of proof than that required by the Constitution. Johnson v. Alabama, 256

F.3d 1156, 1191 (11th Cir. 2001) (citation and internal quotation marks omitted).

      In this case, the trial judge’s reasonable-doubt charge emphasized there was

a “presumption of innocence” in Icenhour’s favor, and the burden of proof was on


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the state “to prove every material allegation of [the] indictment and every essential

element of the crimes charged beyond a reasonable doubt.” R at 340-41. The trial

judge also stated the burden of proof never shifted to Icenhour, he defined

“reasonable doubt” as “a doubt of a fair-minded juror honestly seeking the truth,”

and he noted a reasonable doubt could arise from the evidence, the lack of

evidence, a conflict in the evidence, or Icenhour’s testimony. R at 340-41.

Emphasizing the state’s burden and the jury’s obligation to focus on the evidence

presented, the entire instruction establishes it was not reasonably likely the jury

applied the instruction in an unconstitutional manner. See Victor, 511 U.S. at 5;

Johnson, 256 F.3d at 1190-94.

      Furthermore, Icenhour has failed to provide any caselaw establishing the

trial judge was required to use the pattern jury instruction or the omission of

certain phrases from the pattern instruction was error. Consequently, Icenhour’s

appellate counsel was not ineffective for failing to challenge the reasonable-doubt

instruction directly on appeal or by failing to raise an ineffective-assistance-of-

trial-counsel claim based on trial counsel’s failure to object to the instruction. See

Diaz, 402 F.3d at 1144-45.

      AFFIRMED.




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