                                                                     [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     _____________________                  FILED
                                                                   U.S. COURT OF APPEALS
                                                No. 11-13501         ELEVENTH CIRCUIT
                                           Non-Argument Calendar         JULY 5, 2012
                                           _____________________          JOHN LEY
                                                                           CLERK
                            D.C. Docket No. 6:09-cv-00880-MSS-KRS



ABIMAEL SANTIAGO,

llllllllllllllllllllllllllllllllllllllll                              Petitioner-Appellant,

                                                   versus


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

llllllllllllllllllllllllllllllllllllllll                           Respondents-Appellees.

                                     ________________________

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

                                               (July 5, 2012)

Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:

      Abimael Santiago, a Florida prisoner proceeding pro se, appeals the district

court’s denial of his petition for a writ of habeas corpus filed pursuant to 28

U.S.C. § 2254. Santiago was convicted in Florida of trafficking in heroin,

conspiring to traffick in heroin, and delivering heroin, and was sentenced to a

cumulative total of twenty-five years’ imprisonment. After his conviction was

affirmed and his motion for postconviction relief was denied in state court,

Santiago filed his federal petition for a writ of habeas corpus, which was denied by

the district court. Santiago now appeals the judgment of the district court, arguing

that his trial counsel rendered ineffective assistance under Strickland v.

Washington, 466 U.S. 668 (1984), by failing to request lesser-included-offense

jury instructions as to the drug trafficking and conspiracy charges.

      In order to prevail on his claim that his trial counsel was constitutionally

ineffective, Santiago must show that his trial counsel’s performance fell below an

objective standard of reasonableness measured by prevailing professional norms,

and that this deficiency prejudiced the defense. See Strickland, 466 U.S. at

687-88. Under 28 U.S.C. § 2254(d), we may grant the writ of habeas corpus only

if the Florida appellate court’s decision denying Santiago relief on his Strickland

claims “was contrary to, or involved an unreasonable application of” Strickland, or

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“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) (2006).

      Santiago contends that, had his trial counsel requested a lesser-included-

offense instruction as to the offenses of trafficking and conspiracy, the jury might

have elected to convict him of the lesser offenses notwithstanding that the

evidence supported his conviction for the greater offenses. However, under

Florida law, a jury is permitted to convict of a lesser included offense “only if it

decides that the main accusation has not been proved beyond a reasonable doubt.”

Sanders v. State, 946 So. 2d 953, 958 (Fla. 2006) (internal quotation marks

omitted). Strickland requires that we assume the jury in Santiago’s trial followed

this rule of law. Strickland, 466 U.S. at 694 (“[A] court should presume, absent

challenge to the judgment on grounds of evidentiary insufficiency, that the judge

or jury acted according to law. An assessment of the likelihood of a result more

favorable to the defendant must exclude the possibility of . . . ‘nullification[.]’” ).

The jury in Santiago’s trial concluded that the evidence against him supported his

conviction for the greater offenses on which it was instructed; therefore, even if

the lesser-offense instructions had been given, the jury would not have been

permitted to convict Santiago of the lesser included offenses because it had

concluded that the evidence established that he was guilty of the greater offenses.


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See Sanders, 946 So. 2d at 958. Accordingly, we cannot say that the Florida

appellate court unreasonably applied Strickland in concluding that Santiago’s

counsel’s failure to request the lesser included offense instructions did not

prejudice his defense.

      AFFIRMED




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