                Case: 11-13515       Date Filed: 08/24/2012       Page: 1 of 15

                                                                                   [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________

                                     No. 11-13515
                               ________________________

                      D. C. Docket No. 6:07-cv-00839-MSS-KRS

MACKLE VINCENT SHELTON,

                                                                         Petitioner-Appellee,

                                             versus

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

                                                                    Respondents-Appellants.

                               ________________________

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

                                       (August 24, 2012)

Before WILSON, ANDERSON and HIGGINBOTHAM,* Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

       A Florida state prisoner petitioned for federal habeas relief, challenging the

       *
         Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
                  Case: 11-13515         Date Filed: 08/24/2012   Page: 2 of 15

constitutionality of a Florida statute that altered the mens rea requirement for state

drug offenses.1 The district court, finding a due process violation, granted relief.

We conclude that the state court did not unreasonably apply clearly established

federal law, as determined by the U.S. Supreme Court, and reverse.

                                                  I.

                                        A. Legal Background

      Florida’s Comprehensive Drug Abuse Prevention and Control Act (“Act”)

provides that, except as otherwise authorized, “it is unlawful for any person to sell,

manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a

controlled substance” or “to be in actual or constructive possession of a controlled

substance.”2 Violations range from misdemeanor offenses to first-degree

felonies.3

      The statute does not specify a necessary mental state, an issue the Florida

Supreme Court first addressed in Chicone v. State.4 Reviewing a conviction for

cocaine possession, the court held that the State was required to prove that the



      1
          FLA. STAT. § 893.101.
      2
          Id. § 893.13(1)(a), (6)(a).
      3
          Id. § 893.13(1)-(2).
      4
          684 So. 2d 736 (Fla. 1996).

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defendant “knew of the illicit nature of the items in his possession.”5 The court

reaffirmed that holding six years later, making clear that the requisite mens rea

includes both knowledge of the presence of the controlled substance as well as

knowledge of its illicit nature.6

      The Florida Legislature responded swiftly to the latter decision. On May

13, 2002, it enacted a statute, now codified at FLA. STAT. § 893.101, amending the

Drug Abuse Prevention and Control Act. The amendment provides in full:

      (1) The Legislature finds that the cases of Scott v. State and Chicone
      v. State, holding that the state must prove that the defendant knew of
      the illicit nature of a controlled substance found in his or her actual or
      constructive possession, were contrary to legislative intent.

      (2) The Legislature finds that knowledge of the illicit nature of a
      controlled substance is not an element of any offense under this
      chapter. Lack of knowledge of the illicit nature of a controlled
      substance is an affirmative defense to the offenses of this chapter.

      (3) In those instances in which a defendant asserts the affirmative
      defense described in this section, the possession of a controlled
      substance, whether actual or constructive, shall give rise to a
      permissive presumption that the possessor knew of the illicit nature of
      the substance. It is the intent of the Legislature that, in those cases
      where such an affirmative defense is raised, the jury shall be
      instructed on the permissive presumption provided in this subsection.7


      5
          Id. at 744.
      6
          Scott v. State, 808 So. 2d 166, 169 (Fla. 2002).
      7
          FLA. STAT. § 893.101 (citations omitted).

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The Florida Supreme Court recently considered a facial challenge to the Act as

amended, brought under the Due Process Clauses of the Florida and United States

Constitutions,8 of which the district court in this case did not have the benefit. The

Florida Supreme Court upheld the statute as constitutional and in the process

provided its definitive interpretation,9 tracking the text of the statute:

       The statute . . . expressly eliminates knowledge of the illicit nature of
       the controlled substance as an element of controlled substance
       offenses and expressly creates an affirmative defense of lack of
       knowledge of the illicit nature of the substance. The statute does not
       eliminate the element of knowledge of the presence of the substance
       . . . .10

In short, the amendment did not completely eliminate mens rea for Florida drug

crimes: it converted one aspect of mens rea from an element of the crime into an

affirmative defense.

                                  B. Procedural Background

       A Florida jury convicted petitioner Mackle Vincent Shelton of five counts,


       8
           State v. Adkins, No. SC11-1878, — So. 3d —, 2012 WL 2848903 (Fla. July 12, 2012).
       9
       See Wisconsin v. Mitchell, 508 U.S. 476, 483 (1993) (“There is no doubt that we are
bound by a state court’s construction of a state statute.”).
       10
         Adkins, 2012 WL 2848903, at — (plurality opinion); see also id. at — (Pariente, J.,
concurring) (“The Act is facially constitutional only because it . . . continues to require the State
to prove that a defendant had knowledge of the presence of the controlled substance as an
element of drug-related offenses . . . .”); id. at — (“Significantly, the State still bears the burden
of proving a defendant’s knowledge of presence in order to establish a defendant’s actual or
constructive possession of the controlled substance.”).

                                                   4
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one of which was for delivery of crack cocaine. Shelton’s trial, which took place

in 2005, postdated the amendment to Florida’s Drug Abuse Prevention and

Control Act. Accordingly, the jury was not instructed that Shelton’s knowledge of

cocaine’s illicit nature was an element of the offense.11 Rather, the jury was

instructed as follows:

       To prove the crime of delivery of cocaine, the State must prove the
       following two elements beyond a reasonable doubt:
       [1] That Mackle Vincent Shelton delivered a certain substance; and,
       [2] That the substance was cocaine.12

The jury convicted, and Shelton was sentenced to eighteen years in prison.

       Shelton appealed his conviction and sentence. Florida’s Fifth District Court

of Appeal affirmed without elaboration.13 Shelton then pursued state post-

conviction relief, which the trial court denied. Again, the court of appeal affirmed

without comment.14 At each stage, Shelton made a due process argument akin to



       11
         Shelton did not assert lack of knowledge of cocaine’s illicit nature as an affirmative
defense, as Section 893.101 permits. Because this does not affect our jurisdiction, see Bond v.
United States, 131 S. Ct. 2355, 2367-68 (2011) (Ginsburg, J., concurring), and because we find
no procedural default, we will assume without deciding that Shelton is entitled to bring a facial
challenge despite failing to avail himself of the statute’s full protection.
       12
          “Deliver” or “delivery,” in both the statute and the jury instruction, is defined as “the
actual, constructive, or attempted transfer from one person to another of a controlled substance,
whether or not there is an agency relationship.” See FLA. STAT. § 893.02(6).
       13
            Shelton v. State, 932 So. 2d 212 (Fla. Dist. Ct. App. 2006) (table decision).
       14
            Shelton v. State, 951 So. 2d 856 (Fla. Dist. Ct. App. 2007) (table decision).

                                                    5
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the one presented here. Shelton then turned to federal habeas corpus relief, filing

the petition giving rise to this case on May 18, 2007.

       Shelton sought federal habeas relief on nine grounds. The district court

rejected eight,15 but was persuaded on one ground: that the Act as amended is

facially unconstitutional under the Due Process Clause. The court first concluded

that “no deference is due to the state court’s decision,”16 leading it to review

Shelton’s constitutional argument de novo.17 It then held that the Act as amended

is facially unconstitutional because (1) its penalties are too harsh, (2) violations

lead to substantial social stigma, and (3) it reaches inherently innocent conduct.18

The court granted habeas relief on that basis, staying relief pending appeal.19 The

State timely appealed.20

                                                II.


       15
         Shelton v. Sec’y, Dep’t of Corrections, 802 F. Supp. 2d 1289, 1308-15 (M.D. Fla. 2011).
The district court denied Shelton a certificate of appealability on those eight claims, id. at 1315,
and Shelton has not attempted to argue them before us. We therefore do not consider them.
       16
            Id. at 1297.
       17
            Id.
       18
            Id. at 1297-1306.
       19
            Id. at 1315.
       20
         A certificate of appealability is not required because a representative of Florida is
appealing the district court’s grant of habeas relief. See FED. R. APP. P. 22(b)(3); Lawhorn v.
Allen, 519 F.3d 1272, 1276 n.1 (11th Cir. 2008).

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                                A. AEDPA Deference Generally

       As in so many federal habeas cases reviewing state convictions, setting the

proper scope and standard of federal court review is critical.21 A federal court may

not grant a petitioner habeas relief on a claim that was adjudicated on the merits by

the state court unless the state court decision was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court,” or (2) “was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.”22 The state

court’s factual findings are presumed correct unless the petitioner rebuts those

findings with clear and convincing evidence.23 Because Shelton brings a facial

challenge, the state court’s factual findings are not in dispute and Section

2254(d)(2) is not implicated.

       The Supreme Court has explained the requirements of Section 2254(d)(1) as

follows:

       Under the “contrary to” clause, a federal habeas court may grant the
       writ if the state court arrives at a conclusion opposite to that reached


       21
        Because Shelton filed his federal habeas petition after April 24, 1996, the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) governs our review. See Land v. Allen, 573
F.3d 1211, 1215 (11th Cir. 2009).
       22
            28 U.S.C. § 2254(d).
       23
            Id. § 2254(e)(1).

                                                7
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      by this Court on a question of law or if the state court decides a case
      differently than this Court has on a set of materially indistinguishable
      facts. Under the “unreasonable application” clause, a federal habeas
      court may grant the writ if the state court identifies the correct
      governing legal principle from this Court’s decisions but
      unreasonably applies that principle to the facts of the prisoner’s
      case.24

That is, “an unreasonable application of federal law is different from an incorrect

application of federal law,”25 the former “a substantially higher threshold.”26 To

obtain relief under § 2254(d), the petitioner “must show that the state court’s

ruling on the claim being presented in federal court was so lacking in justification

that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.”27

                               B. Deference in Shelton’s Case

      When reviewing the district court’s grant or denial of habeas relief, we

review its conclusions on legal questions and mixed questions of law and fact de

novo.28 In this case, that review begins with the district court’s determination of

its standard of review. Drawing on the Supreme Court’s recent decision in

      24
           Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
      25
           Id. at 410.
      26
           Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
      27
           Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).
      28
           Roberts v. Comm’r, Ala. Dep’t of Corrections, 677 F.3d 1086, 1089 (11th Cir. 2012).

                                                 8
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Harrington v. Richter,29 the district court concluded that the Florida appellate

court rulings in Shelton’s case were not “adjudications on the merits” entitled to

deference because they were one-word summary affirmances.

       In Harrington, the Supreme Court held that “[w]hen a federal claim has

been presented to a state court and the state court has denied relief, it may be

presumed that the state court adjudicated the claim on the merits in the absence of

any indication or state-law procedural principles to the contrary.”30 Under

Harrington’s general rule, then, a state court’s simple one-word affirmance is

presumed to be an adjudication on the merits of the petitioner’s claim.31 But the

district court located what it considered to be a “state-law procedural principle to

the contrary” in a 1983 Florida Supreme Court case.32 In that case, according to

the district court, the Florida Supreme Court supplied a state-law procedural

principle “that a per curiam affirmance has no precedential value and is not an

adjudication on the merits.”33

       29
            131 S. Ct. 770.
       30
            Id. at 784-85.
       31
         “The presumption may be overcome when there is reason to think some other
explanation for the state court’s decision is more likely,” id. at 785, a showing that Shelton has
not attempted to make here.
       32
            Dep’t of Legal Affairs v. Dist. Court of Appeal, 5th Dist., 434 So. 2d 310 (Fla. 1983).
       33
            Shelton, 802 F. Supp. 2d at 1297 (citing Dep’t of Legal Affairs, 434 So. 2d at 311).

                                                   9
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       The district court is only half-right, and not on the half that counts for

federal habeas purposes. The Florida Supreme Court never held that a “per curiam

appellate court decision with no written opinion” is not an adjudication on the

merits; all it did was hold that the decision holds no precedential value for future

cases.34 Indeed, a Florida district court of appeal recently “reiterate[d] that a per

curiam affirmance without opinion is not an indication that the case was not

considered on the merits.”35 That position is consonant with this Circuit’s recent

en banc decision in another Florida habeas case, which held that “an ‘adjudication

on the merits’ is best defined as any state court decision that does not rest solely

on a state procedural bar” and that deference is presumed “unless the state court

clearly states that its decision was based solely on a state procedural rule.”36 Here,

the state court on direct appeal did not apply a procedural bar, and we are therefore

compelled to presume that the court rendered an “adjudication on the merits”

entitled to AEDPA deference.37


       34
            Dep’t of Legal Affairs, 434 So. 2d at 311.
       35
            Crittenden v. State, 67 So. 3d 1184, 1185 n.1 (Fla. Dist. Ct. App. 2011).
       36
           Childers v. Floyd, 642 F.3d 953, 968, 969 (11th Cir. 2011) (en banc); see also Wright v.
Sec’y for the Dep’t of Corrections, 278 F.3d 1245, 1254 (11th Cir. 2002) (agreeing with six
circuits, in another Florida habeas case, that “the summary nature of a state court’s decision does
not lessen the deference that is due”).
       37
            See supra note 31 (explaining that Shelton has not attempted to rebut this presumption).

                                                   10
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      That conclusion significantly circumscribes the scope of our review. Unless

we find that the state court’s decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court,”38 we must deny relief.

                                              III.

      In order for Shelton to prevail here, he must be able to point to Supreme

Court precedent clearly establishing that the Due Process Clause forbids the partial

elimination of mens rea as an element of crimes analogous to those in Florida’s

Drug Abuse Prevention and Control Act, beyond any possibility for fairminded

disagreement. That is a tall order, and as it happens, an impossible one.

      It bears noting at the outset that, while the Florida Supreme Court’s decision

upholding the Act under the Due Process Clause39 does not bind us, it illustrates

that five Justices of the Florida Supreme Court agree that no U.S. Supreme Court

precedent renders the Act as amended unconstitutional. Were we to grant relief

for Shelton here, we would necessarily imply that those Justices unreasonably

applied clearly established federal law, as determined by the U.S. Supreme Court.

If nothing else, that improbable outcome illustrates the uphill battle Shelton faces.


      38
           28 U.S.C. § 2254(d)(1).
      39
           State v. Adkins, No. SC11-1878, — So. 3d —, 2012 WL 2848903 (Fla. July 12, 2012).

                                               11
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       As it turns out, a fine-grained parsing of Supreme Court precedents is

unnecessary to resolve our constricted inquiry. One very general principle can be

distilled from the Court’s cases in this area: legislatures have “wide latitude . . . to

declare an offense and to exclude elements of knowledge and diligence from its

definition,”40 but they still must “act within any applicable constitutional

constraints”41 when defining the elements of a criminal offenses. The Court has

not drawn lines around this principle sufficient to dictate a particular result of the

Florida court here, especially considering that Florida’s elimination of mens rea

was only partial. The Supreme Court has acknowledged that its work in this area

has only just begun, noting twice that no court “‘has undertaken to delineate a

precise line or set forth comprehensive criteria for distinguishing between crimes

that require a mental element and crimes that do not.’”42 Absent a Supreme Court

case directly on point or a case so closely analogous that fairminded jurists would

agree that its rule must extend to the present scenario, the Court’s

acknowledgment of uncertainty in this key principle effectively answers the


       40
            Lambert v. California, 355 U.S. 225, 228 (1957).
       41
         Liparota v. United States, 471 U.S. 419, 424 n.6 (1985); see also Patterson v. New
York, 432 U.S. 197, 210 (1977) (“[T]here are obviously constitutional limitations beyond which
the States may not go in this regard.”).
       42
        Staples v. United States, 511 U.S. 600, 620 (1994) (quoting Morissette v. United States,
342 U.S. 246, 260 (1952)).

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AEDPA inquiry in Florida’s favor.

      Today, we need not march through all Supreme Court cases to prove the

negative that the Supreme Court has never addressed Shelton’s issue head-on,

much less addressed it in his favor. It suffices to note that only once, in Lambert

v. California, has the Supreme Court held a criminal provision unconstitutional

under the Due Process Clause for failing to require sufficient mens rea. Lambert

was an as-applied challenge to a Los Angeles municipal ordinance requiring

felons to register with the city.43 The Court held that because failing to register is

“wholly passive,” the defendant lacked any notice whatsoever of her wrongdoing,

violating her due process rights.44 The actions criminalized by the Florida Act as

amended are sufficiently distinguishable—requiring affirmative acts of selling,

manufacturing, delivering, or possessing, in addition to knowledge of the presence

of the substance, all with an affirmative defense of lack of knowledge

available—that we cannot say the state courts were unreasonable not to import

Lambert’s reasoning into this very different context.

      Other cases that Shelton and the district court relied on are not square due

process holdings. Rather, those cases avoid the due process question, sometimes


      43
           Lambert, 355 U.S. 225.
      44
           Id. at 228.

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invoking the rule of lenity, by reading a mens rea requirement into otherwise silent

or ambiguous statutes.45 As Florida’s statute is explicit in its partial elimination of

mens rea, those rulings are no aid in Shelton’s struggle to overcome AEDPA

deference. Constitutional avoidance is little help to someone in search of clearly

established constitutional law.

       It must be said, too, that at a similar level of generality, a number of the

Court’s cases cut Florida’s way,46 many of which the Florida Supreme Court relied

on in upholding the amendment.47 It is plain that the analysis of the district court,

addressing the due process question de novo, conflicts with the analysis of the

Florida Supreme Court, but the district court implicitly concedes that its own

result was not commanded by Supreme Court precedent in the manner



       45
          United States v. X-Citement Video, Inc., 513 U.S. 64 (1994); Staples, 511 U.S. 600;
Liparota, 471 U.S. 419; United States v. U.S. Gypsum Co., 438 U.S. 422 (1978); Morissette, 342
U.S. 246. See generally Shelton, 802 F. Supp. 2d at 1298 (“[T]he issue typically arises where a
statute is silent as to knowledge . . . .”).
       46
          See Patterson, 432 U.S. 197 (upholding against a due process challenge New York’s
statute making extreme emotional distress an affirmative defense to a murder charge); United
States v. Int’l Minerals & Chem. Corp., 402 U.S. 558 (1971); United States v. Freed, 401 U.S.
601, 607-10 (1971); United States v. Balint, 258 U.S. 250 (1922) (upholding against a due
process challenge the Narcotic Act of 1914, which lacked a knowledge requirement (deliberately,
as the Court found), and declining to read one into the statute); see also Staples, 511 U.S. at 616
n.11 (“Of course, if Congress thinks it necessary to reduce the Government’s burden at trial to
ensure proper enforcement of the [National Firearms] Act, it remains free to amend [it] by
explicitly eliminating a mens rea requirement.”).
       47
            Adkins, 2012 WL 2848903.

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contemplated by AEDPA. Its error here was made at the beginning—failing to

accord deference to the state court decision on the erroneous view that it was not

an adjudication on the merits of Shelton’s appeal. To be clear, this Court

expresses no view on the underlying constitutional question, as we limit our

analysis to AEDPA’s narrow inquiry. That inquiry leads us to conclude that

nothing in the U.S. Reports decides or implies resolution of the novel issue of the

Florida Act’s constitutionality, and we cannot find Florida’s adjudication to be

unreasonable under AEDPA.

                                                IV.

       The district court’s grant of habeas relief is REVERSED.48




       48
          Shelton’s motions to strike are denied. The previous contrary order on the motion to
strike a paragraph of the reply brief, entered by a single judge of this court as an administrative
ruling, is vacated.

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