                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________            FILED
                                                U.S. COURT OF APPEALS
                             No. 09-13363         ELEVENTH CIRCUIT
                                                      APRIL 19, 2010
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                         CLERK

               D. C. Docket No. 07-00647-CV-ORL-22DAB

ANDRE APPLEWHITE,



                                                          Petitioner-Appellant,

                                  versus

SECRETARY, DOC,
FL ATTORNEY GENERAL,


                                                       Respondents-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (April 19, 2010)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
       Petitioner Andre Applewhite is a Florida prison inmate. In 2003, a jury

found him guilty of escape. Because he was a habitual felony offender, the court

sentenced him to imprisonment for 30 years. His conviction and sentence were

affirmed on appeal, Applewhite v. State, 874 So.2d 1276 (Fla. 5 th DCA 2004).

After his motion for post-conviction relief, see Fla. R. Crim. P. 3.850, was denied,

he commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254. The

district court denied his petition and his application for a certificate of appealability

(“COA”). We granted a COA, and thus petitioner’s leave to appeal, with respect to

one issue: “Whether the district court erred in denying Applewhite’s claim that the

state’s special jury instruction amounted to a directed verdict of guilt as to the

charge of escape, in violation of his due process rights.”1

                                                I.

       In 2002, petitioner was a Florida prison inmate. He was charged with the

escape offense at issue here because, according to the State, he intentionally

escaped or attempted to escape the custody of a law enforcement official while

being transported to or from a place of confinement, in violation of Fla. Stat.

§ 944.40. At his trial, the court instructed the jury on escape as follows:


       1
        We decline to consider petitioner’s claim on appeal that the jury instructions violated
Supreme Court precedent defining “arrest” because it is a substantive issue that falls outside the
scope of the COA. See Newland v. Hall, 527 F.3d 1162, 1166 n.4 (11th Cir. 2008), cert. denied, 129
S.Ct. 1336 (2009) (“Our review is limited to the issues enumerated in the COA.”).

                                                2
      Before you can find the defendant guilty of Escape, the State must
      prove the following three elements beyond a reasonable doubt:

             1. The defendant was under arrest and in the lawful
             custody of a law enforcement official.

             2. While a prisoner, the defendant was being transported
             to a place of confinement.

             3. The defendant escaped or attempted to escape by
             intending to avoid lawful confinement.

The court also gave the following special jury instruction over petitioner’s

objection:

      It is not necessary for you to find or for the State of Florida to prove
      the law enforcement official had completed the act of acquiring total
      physical control of the defendant in the instant of escape or attempted
      escape so long as it is proven the law enforcement official had 1) a
      right to legal custody of the defendant and 2) there was a conscious
      and intentional act of the defendant in leaving or attempting to leave
      the established area of such custody.

      “Transportation to a place of confinement” begins at the time an
      individual is placed under arrest.

      In appealing his conviction, petitioner argued that the trial court “deprived

[him] of due process” by giving the State’s special jury instruction on escape,

“which amounted to a directed verdict of guilt” on that charge, and that the jury

instructions “were fundamentally unfair to the accused.” The district court of

appeal disagreed, concluding that the trial court did not abuse its discretion in

giving the challenged instruction because it was consistent with Florida law as

                                           3
explained in State v. Ramsey, 475 So.2d 671, 672 (Fla. 1985), and “more to the

point, [was] pertinent to the particular facts presented in [the appellant’s] case.”

The court summarized the holding in Ramsey as follows: “[A] defendant, who

upon being informed that he was under arrest, ran from scene . . . was properly

charged with escape, notwithstanding that he had not been restrained and arrest

procedure had not progressed to point where officer had removed handcuffs from

their carrying place.”

      In denying petitioner habeas relief, the district court noted that (1) jury

instructions that correctly state the law do not deprive a defendant of due process,

(2) jury instructions that are incorrect under state law provide no basis for federal

habeas relief, and (3) relief would be proper only if the instruction “so infected the

entire trial that the resulting conviction violates due process.” The court then

found that the district court of appeal’s conclusion that the trial court did not err by

giving the special jury instruction was not objectively unreasonable because the

instruction “was a correct statement of Florida law.”

                                           II.

      Section 2254 of Title 28 of the United States Code provides a remedy for a

state prisoner who claims that he is in custody in violation of the “Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2254(a). Under the Anti-



                                            4
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court

may grant habeas relief only if 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 was “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceedings.” 28 U.S.C. § 2254(d)(1)-(2). The phrase “clearly

established Federal law” refers to “the governing legal principle or principles set

forth by the Supreme Court at the time the state court renders its decision.”

Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 1172, 155 L.Ed.2d 144

(2003).

      In general, questions of state law rarely raise issues of federal constitutional

significance and, therefore, “[a] state’s interpretation of its own laws or rules

provides no basis for federal habeas corpus relief, since no question of a

constitutional nature is involved.” Carrizales v. Wainwright, 699 F.2d 1053, 1055

(11th Cir. 1983); see also Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir.

2000) (stating that the writ of habeas corpus was not enacted to enforce

state-created rights). Where the claim is merely that a jury instruction was

incorrect under state law, federal habeas relief is not available. Estelle v. McGuire,

502 U.S. 62, 71-72, 112 S.Ct. 475, 481-82, 116 L.Ed.2d 385 (1991). Accordingly,



                                           5
we review errors in state jury instructions in the § 2254 context solely to determine

whether the alleged errors were so critical or important to the outcome of the trial

that they rendered “the entire trial fundamentally unfair.” Carrizales, 699 F.2d at

1055.

        The Due Process Clause “prohibits the State from using evidentiary

presumptions in a jury charge that have the effect of relieving the State of its

burden of persuasion beyond a reasonable doubt of every essential element of a

crime.” Francis v. Franklin, 471 U.S. 307, 313, 105 S.Ct. 1965, 1970, 85 L.Ed.2d

344 (1985); see In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d

368 (1970) (holding that due process requires proof beyond a reasonable doubt of

every fact necessary to constitute the crime charged). “[A] conclusive presumption

on [an] issue . . . is the functional equivalent of a directed verdict on that issue.”

Connecticut v. Johnson, 460 U.S. 73, 84, 103 S.Ct. 969, 976, 74 L.Ed.2d 823, 832

(1983); see Smelcher v. Att’y Gen. of Ala., 947 F.2d 1472, 1476 (11th Cir. 1991)

(“It is beyond dispute that a judge may not direct a verdict of guilty in a criminal

jury trial.”).

        In contrast to a mandatory presumption, which “instructs the jury that it must

infer the presumed fact if the State proves certain predicate facts,” a permissive

inference “suggests to the jury a possible conclusion to be drawn if the State



                                            6
proves predicate facts, but does not require the jury to draw that conclusion.”

Francis, 471 U.S. at 314, 105 S.Ct. at 1971. A permissive inference does not

violate the Due Process Clause as long as the suggested conclusion “is . . . one that

reason and common sense justify in light of the proven facts before the jury.” Id.

at 314-15, 105 S.Ct. at 1971. This is true because “the State still has the burden of

persuading the jury that the suggested conclusion should be inferred based on the

predicate facts proved.” Estelle, 502 U.S. at 78-79, 112 S.Ct. at 485.

      To determine whether an impermissible evidentiary presumption arose

following a particular instruction, courts first must consider the specific language

challenged. Francis, 471 U.S. at 315, 105 S.Ct. at 1971. If there is “a reasonable

likelihood” that the jury understood “a specific portion of the jury charge,

considered in isolation . . . as creating a presumption that relieves the State of its

burden of persuasion on an element of an offense, the potentially offending words

must be considered in the context of the charge as a whole” in order to determine if

other instructions “explain the particular infirm language.” Boyde v. California,

494 U.S. 370, 378-80, 110 S.Ct. 1190, 1197-98, 108 L.Ed.2d 316 (1990); Francis,

471 U.S. at 315, 105 S.Ct. at 1971.

      In Francis, the defendant was charged with malice murder under Geogia law

and “intent to kill” was an essential element of that charge. See Francis, 471 U.S.



                                            7
at 316 n.4, 105 S.Ct. at 1972 n.4. The Supreme Court held that a jury instruction

that “[t]he acts of a person of sound mind and discretion are presumed to be the

product of the person’s will,” and that “[a] person of sound mind and discretion is

presumed to intend the natural and probable consequences of his acts” created a

mandatory presumption that violated the defendant’s due process rights, even

though the trial court also instructed the jury that “the presumption may be

rebutted.” Id. at 315-18, 105 S.Ct. at 1971-73 (quotations omitted); see also

Sandstrom v. Montana, 442 U.S. 510, 512-13, 524, 99 S.Ct. 2450, 2453, 2459, 61

L.Ed.2d 39 (1979) (rejecting a similar instruction where the defendant was charged

with deliberate homicide).

      By contrast, in a case where the defendants were charged with illegally

possessing firearms found in an automobile, the Supreme Court upheld, as a

permissive inference, an instruction that the jurors “were entitled to infer

possession from the defendants’ presence in the car.” County Court of Ulster

County, N.Y. v. Allen, 442 U.S. 140, 145, 157-65, 99 S.Ct. 2213, 2218, 2224-29,

60 L.Ed.2d 777 (1979). There, the jury instructions, as a whole, made it clear “that

the [permissive] presumption was merely a part of the prosecution’s case,” and that

the state retained the burden of proving possession beyond a reasonable doubt

“without regard to how much evidence the defendants introduced.” Id. at 160-62,



                                           8
99 S.Ct. at 2226-27. Further, under the facts of the case, it was rational for the jury

to make the connection permitted by the inference. Id. at 163-67, 99 S.Ct. at 2228-

29; see also Baxter v. Thomas, 45 F.3d 1501, 1509 (11th Cir. 1995) (holding, in a

pre-AEDPA habeas case, that an instruction that the state’s proof of certain

predicate facts “would be a circumstance along with the other evidence in the case

from which the jury may infer the guilt of the defendant” was a permissive

inference that was not “irrational”).

      We conclude that the district court properly denied the due process claim at

issue. The challenged special jury instruction did not create a mandatory

presumption that amounted to a directed verdict on the charge of escape because,

unlike the instructions previously rejected by the Supreme Court, it contained no

burden shifting language. When read in conjunction with the standard jury

instructions the trial court gave, the instructions, as a whole, merely clarified the

definition of “under arrest and in custody” pursuant to Florida law and the

circumstances under which the jury could conclude that the State had met its

burden of proof. Furthermore, such a conclusion was not irrational on the facts of

the case. Thus, petitioner failed to establish either an independent due process

violation or that the district court of appeal decision was contrary to, or involved an

unreasonable application of, clearly established Federal law.



                                            9
AFFIRMED.




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