           Case: 17-11828   Date Filed: 04/03/2019   Page: 1 of 15


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11828
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 2:12-cv-00644-JES-CM



AHMAD RASHED ALLEN,

                                                          Petitioner-Appellant,

                                  versus

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

                                                       Respondents-Appellees.

                       ________________________

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

                              (April 3, 2019)

Before WILSON, NEWSOM, and HULL, Circuit Judges.

PER CURIAM:
              Case: 17-11828     Date Filed: 04/03/2019   Page: 2 of 15


      Ahmad Rashed Allen, a Florida prisoner proceeding pro se, appeals the

district court’s dismissal of his 28 U.S.C. § 2254 petition. We granted a certificate

of appealability (COA) on the following issues: (1) whether Allen’s counsel was

ineffective for failing to seek a judgment of acquittal on his second-degree murder

charge; (2) whether Allen’s counsel was ineffective for failing to object to his life

sentence; and (3) whether the cumulative error of counsel’s alleged ineffective

assistance undermined the fairness of Allen’s convictions and sentences. After

careful review, we affirm.

                       I.    Factual and Procedural Background

                               A. State Court Proceedings

      In December 2005, Allen was charged with one count of second-degree

murder (Count 1) and two counts of aggravated battery with a firearm (Counts 2

and 3). The evidence presented at trial established the following. On November 5,

2005, Joe Bradley (Joe) and Manny Quintero agreed to meet at an apartment

complex to discuss jewelry and money that Joe allegedly stole from Quintero.

Joe’s mother, Gloria Bradley (Gloria), and sister, Latoya Bradley (Latoya), as well

as Latoya’s 1-year-old son, accompanied Joe to the apartment complex. Allen

accompanied Quintero.




                                          2
               Case: 17-11828   Date Filed: 04/03/2019   Page: 3 of 15


      Upon arrival, Joe and Quintero began arguing. The argument escalated into

a physical altercation wherein Joe jumped on Quintero and started punching him.

At this point, Gloria, holding her grandson, approached the men and attempted to

separate them. Allen then emerged from a nearby car and discharged his weapon,

killing Gloria after shooting her in the head. Upon hearing the gunshots, Joe

stopped fighting and started running away. Allen continued firing, shooting Joe

several times. Joe recovered after several months in the hospital.

      At the close of the State’s case, Allen moved for a judgment of acquittal on

Count 3, which the state court granted. The jury then found Allen guilty of Counts

1 and 2. As to Count 1, the court sentenced Allen to life in prison without parole

under Florida’s prison release reoffender statute. See Fla. Stat. § 775.082. As to

Count 2, the court sentenced Allen to a concurrent life sentence with a minimum

mandatory sentence of twenty-five years based on the 10-20-Life statute. See Fla.

Stat. § 775.087. The sentencing order indicated that Allen was sentenced as a

habitual felony offender, see Fla. Stat § 775.084, and prison release reoffender on

both counts.




                                         3
              Case: 17-11828     Date Filed: 04/03/2019     Page: 4 of 15


      On direct appeal, Allen raised four grounds for relief. In relevant part, he

argued that there was insufficient evidence to support his conviction for second-

degree murder. Specifically, he argued that the state failed to prove that he acted

out of ill will, hatred, spite, or evil intent. In support of this argument, Allen noted

that Quintero’s girlfriend, a witness, had testified that it did not appear that Allen

shot anyone on purpose. Florida’s Second District Court of Appeals (DCA)

rejected each argument and affirmed.

                        B. State Post-Conviction Relief Proceedings

      On August 5, 2009, Allen, proceeding pro se, filed his first post-conviction

motion under Florida Rule of Criminal Procedure 3.800(a). Allen argued that the

trial court erred in sentencing him as both a habitual felony offender and a prison

release reoffender. The court agreed and entered a new sentence. The new

sentence lacked the habitual felony offender designation but was otherwise the

same as the original sentence.

      On March 14, 2011, Allen, again proceeding pro se, filed a post-conviction

relief motion under Rule 3.850. He raised five claims of ineffective assistance of

counsel based on: (1) counsel’s failure to object to the prosecutor’s comments

during closing argument regarding transferred intent; (2) counsel’s failure to object

to the court’s justifiable use of a deadly force jury instruction; (3) counsel’s failure

to object to the excusable homicide jury instruction; (4) counsel’s failure to object


                                           4
              Case: 17-11828      Date Filed: 04/03/2019   Page: 5 of 15


to the manslaughter jury instruction; and (5) the cumulative effect of counsel’s

errors deprived him of a fair trial.

      The state post-conviction court denied Allen’s Rule 3.850 motion. Allen

moved for a rehearing, which was also denied. Allen appealed the denial of his

Rule 3.850 motion, which the Second DCA affirmed.

                          C. Federal Habeas Proceedings

      On December 3, 2012, Allen, proceeding pro se, filed a petition for a writ of

habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the

Middle District of Florida. His amended petition asserted ten grounds for relief,

including, in relevant part, that counsel was ineffective for: (1) not moving for a

judgment of acquittal on the charge of second-degree murder on the basis that the

evidence was insufficient to support a finding that Allen acted with a depraved

mind; (2) not asserting that Allen’s life sentence under the 10-20-Life statute for

aggravated battery was impermissible; and (3) not objecting to Allen’s life

sentence for aggravated battery when the trial court imposed a 25-year minimum

mandatory sentence under the 10-20-Life statute. Allen also argued that the

cumulative effect of counsel’s ineffective assistance undermined the fairness and

reliability of his convictions and sentence.

      The district court denied relief on all grounds. Because he did not raise it in

the state court proceedings, the district court determined that Allen’s claim that his


                                           5
                Case: 17-11828    Date Filed: 04/03/2019   Page: 6 of 15


counsel was ineffective for failing to move for a judgment of acquittal was

unexhausted. According to the court, the claim was also procedurally defaulted

under Florida law. The court held that the procedural default could not be excused

under Martinez v. Ryan, 566 U.S. 1 (2012), because the claim was not

“substantial.” Alternatively, the court concluded that the claim was meritless.

      Regarding Allen’s argument that counsel was ineffective for failing to object

to his life sentence, the court concluded that such an argument raised a sentencing

issue exclusively concerning Florida law for which federal habeas relief was not

appropriate. Accordingly, the court determined that the claim was not cognizable.

      As to the cumulative error claim, the court held that because Allen had not

shown error of constitutional dimensions on any of his individual ineffective

assistance of counsel claims, he could not show that he was entitled to habeas relief

based on the cumulative effect of the alleged errors. We granted a COA as to those

three issues.

                         II.     Writ of Habeas Corpus Standard

      Section 2254 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). To warrant relief under § 2254, a petitioner must show that

the state court rendered a decision on the merits that “was contrary to, or involved

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


                                           6
              Case: 17-11828      Date Filed: 04/03/2019    Page: 7 of 15


the Supreme Court” or “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” Id. § 2254(d)(1),

(2). A state court’s determination of a factual issue is presumed correct unless

rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

      Before filing a habeas petition in federal court, a petitioner must exhaust all

available state court remedies. 28 U.S.C. § 2254(b), (c). A failure to exhaust

occurs “when a petitioner has not fairly presented every issue raised in his federal

petition to the state’s highest court, either on direct appeal or on collateral review.”

Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (internal

quotation marks and brackets omitted).

      If a petitioner fails to exhaust state remedies, the district court must dismiss

the claims without prejudice to allow the petitioner to present the claims before a

state court. Jimenez v. Fla. Dep’t of Corr., 481 F.3d 1337, 1342 (11th Cir. 2007).

If it is obvious that the unexhausted claim would be procedurally barred in state

court, however, the federal court should treat the unexhausted claim as

procedurally defaulted. Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir.

2003); see also Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999) (per curiam)

(“[F]ederal courts may treat unexhausted claims as procedurally defaulted, even

absent a state court determination to that effect, if it is clear from state law that any

future attempts at exhaustion would be futile.”).


                                            7
              Case: 17-11828     Date Filed: 04/03/2019     Page: 8 of 15


      If a state prisoner has “defaulted his federal claims in state court pursuant to

an independent and adequate state procedural rule, federal habeas review of the

claims is barred unless the prisoner can demonstrate cause for the default and

actual prejudice as a result of the alleged violation.” Lambrix v. Sec’y, Fla. Dep’t

of Corr., 756 F.3d 1246, 1259–60 (11th Cir. 2014) (quotation omitted). To

demonstrate cause, the petitioner must show that some objective factor external to

the defense impeded his ability to raise his claim properly in state court.

Henderson, 353 F.3d at 892. To show prejudice, the petitioner must demonstrate a

reasonable probability that the result of the proceeding would have been different.

Id.

      In general, the lack of an attorney or an attorney error that led to the default

of certain claims in state court cannot serve as cause to excuse a procedural default

in federal habeas review. See Coleman v. Thompson, 501 U.S. 722, 757 (1991). In

Martinez v. Ryan, however, the Supreme Court recognized that, in limited

circumstances, an allegation of ineffective assistance of counsel in a post-

conviction proceeding may constitute cause to excuse a procedural default. 566

U.S. 1, 13–14 (2012). Specifically, where a prisoner fails to raise ineffective

assistance of trial counsel claims in initial review, the claims may be excepted

from procedural default where (1) state law required the prisoner to raise

ineffective assistance of trial counsel claims at an initial review collateral


                                           8
              Case: 17-11828     Date Filed: 04/03/2019   Page: 9 of 15


proceeding; (2) the prisoner did not have counsel or his counsel was ineffective

during those proceedings; and (3) the prisoner’s claims are “substantial.” Id. at 14.

The Supreme Court noted that, to be substantial, the prisoner’s claim must have

some merit. Id. We have further clarified this standard, holding that, to show that

an underlying claim is substantial, the petitioner must show that reasonable jurists

would debate its merits. Hittson v. GDCP Warden, 759 F.3d 1210, 1269–70 (11th

Cir. 2014).

                                III.   Standard of Review

      We review a district court’s denial of a § 2254 petition de novo. Bester v.

Warden, 836 F.3d 1331, 1336 (11th Cir. 2016). We review mixed questions of fact

and law de novo, and findings of fact for clear error. Nyland v. Moore, 216 F.3d

1264, 1266 (11th Cir. 2000) (per curiam). Whether a petitioner exhausted state

court remedies is a mixed question of law and fact, which we review de novo.

Green v. Nelson, 595 F.3d 1245, 1254 (11th Cir. 2010). Similarly, we review a

district court’s determination that the petitioner is procedurally barred from raising

a claim in federal court de novo. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317,

1345 (11th Cir. 2004). In an appeal brought by an unsuccessful habeas petitioner,

the scope of our review is limited to the issues specified in the COA. Maharaj v.

Sec’y for Dep’t of Corr., 432 F.3d 1292, 1302 (11th Cir. 2005).




                                          9
             Case: 17-11828     Date Filed: 04/03/2019   Page: 10 of 15


                 IV.   Counsel’s Failure to Seek a Judgment of Acquittal

      To succeed on an ineffective assistance of counsel claim, a federal habeas

petitioner must satisfy the two-part test established in Strickland v. Washington.

466 U.S. 668, 687 (1984). First, the petitioner must show that his attorney’s

performance was deficient. Id. Second, the petitioner must show that the deficient

performance prejudiced his defense. Id. Notably, an attorney cannot be deemed

ineffective for failing to raise claims that are “reasonably considered to be without

merit.” United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (quotation

omitted).

      Florida Rule of Criminal Procedure 3.850 provides, in relevant part, that a

prisoner may file a motion to vacate his sentence on the grounds that the sentence

imposed violates the Constitution or exceeds the maximum authorized by law. Fla.

R. Crim. P. 3.850(a)(1). A Rule 3.850 motion must be filed within two years after

the judgment and sentence become final, which, in Florida, is when direct review

has concluded. Fla. R. Crim. P. 3.850(b). Notably, Florida defendants are

generally required to raise ineffective assistance of counsel claims in these Rule

3.850 post-conviction proceedings. See Reynolds v. State, 99 So. 3d 459, 474 (Fla.

2012) (noting how “claims of ineffective assistance of counsel generally are not

cognizable on direct appeal and are properly raised in postconviction

proceedings”).


                                          10
             Case: 17-11828      Date Filed: 04/03/2019    Page: 11 of 15


      In Florida, the offense of second-degree murder is defined as “[t]he unlawful

killing of a human being, when perpetrated by any act imminently dangerous to

another and evincing a depraved mind regardless of human life,” although without

any premeditation. Fla. Stat. § 782.04(2). Thus, the elements of second-degree

murder are: (1) the victim is dead; (2) the defendant caused the death by a criminal

act; and (3) the unlawful killing was caused by an act “imminently dangerous to

another and evincing a depraved mind regardless of human life.” Duckett v. State,

686 So. 2d 662, 663 (Fla. 2d DCA 1996). Florida courts describe such conduct

evincing a depraved mind as characterized by

             an act or series of acts that (1) a person of ordinary
             judgment would know is reasonably certain to kill or do
             serious bodily injury to another, and (2) is done from ill
             will, hatred, spite, or an evil intent, and (3) is of such a
             nature that the act itself indicates an indifference to human
             life.

State v. Montgomery, 39 So. 3d 252, 255–56 (Fla. 2010) (quotation omitted). In

Florida, firing a gun into a crowd of people constitutes second-degree murder

where a person is killed as a result. See Pressley v. State, 395 So. 2d 1175, 1177

(Fla. 3d DCA 1981).

      Allen now contends that his counsel’s failure to move for a judgment of

acquittal on his second-degree murder charge constituted ineffective assistance of

counsel. It is undisputed that Allen did not raise this claim in state court; therefore,

the claim is unexhausted. Pope, 680 F.3d at 1284. Typically, a federal district
                                          11
              Case: 17-11828     Date Filed: 04/03/2019     Page: 12 of 15


court should dismiss unexhausted claims without prejudice. Jimenez, 481 F.3d at

1342. But “federal courts may treat unexhausted claims as procedurally

defaulted . . . if it is clear from state law that any future attempts at exhaustion

would be futile.” Bailey, 172 F.3d at 1305. Under Florida law, a prisoner must file

all ineffective assistance of counsel claims within two years of the final judgment.

Fla. R. Crim. P. 3.850(a)(1). Because Allen’s judgment and sentence became final

in June 2012, the district court correctly concluded that his claim is procedurally

defaulted.

      Allen argues that the default should be excused based on the Martinez v.

Ryan, 566 U.S. at 13–14, exception. But Allen’s claim does not satisfy the third

Martinez requirement—that the claim is “substantial.” To be considered

“substantial,” the claim must have “some merit.” Id. Allen’s claim that his

counsel was ineffective for failing to move for a judgment of acquittal on his

second-degree murder charge, however, is meritless. First, Allen cannot show that

his counsel acted deficiently as required by Strickland. It is established in Florida

that shooting a gun toward a group of people constitutes second-degree murder.

See Pressley, 395 So. 2d at 1177. Any argument to the contrary would be

meritless, and Allen’s counsel cannot be deemed deficient for failing to raise a

meritless argument. Nyhuis, 211 F.3d at 1344. Allen likewise fails to satisfy

Strickland’s second prong; that is, he has not shown that the result of his trial


                                           12
             Case: 17-11828      Date Filed: 04/03/2019    Page: 13 of 15


would have been different if counsel had moved for a judgment of acquittal. This

conclusion is bolstered by the fact that, on direct appeal, Allen’s appellate counsel

argued that there was insufficient evidence to convict Allen of second-degree

murder. The appellate court rejected this argument and affirmed his conviction.

      Ultimately, Allen’s claim did not have “some merit” and thus cannot be

considered “substantial.” Accordingly, his procedural default cannot be excused.

Because the district court correctly dismissed the claim as procedurally defaulted,

we affirm.

               V.    Counsel’s Failure to Object to Allen’s Life Sentence

      The writ of habeas corpus was not enacted to enforce state-created rights.

Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000). 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, 1054–55 (11th Cir. 1983) (per curiam).

Regarding state sentencing guidelines specifically, we have held that “federal

courts can not review a state’s alleged failure to adhere to its own sentencing

procedures.” Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (per curiam).

“This limitation on federal habeas review is of equal force when a petition, which




                                           13
             Case: 17-11828     Date Filed: 04/03/2019    Page: 14 of 15


actually involves state law issues, is couched in terms of equal protection and due

process.” Id. (quotation marks omitted).

      Florida Rule of Criminal Procedure 3.800 provides that “[a] court may at

any time correct an illegal sentence imposed by it.” Fla. R. Crim. P. 3.800(a)(1).

The Florida Supreme Court has noted that Rule 3.800 motions can be filed long

after the sentence is final, but that they “must address errors apparent on the face of

the record.” Brooks v. State, 969 So. 2d 238, 238 (Fla. 2007).

      The district court improperly characterized Allen’s ineffective assistance

claim based on counsel’s failure to object to his life sentence as an issue purely

concerning Florida law. Based on this mischaracterization, the district court

determined that the claim was not cognizable. In fact, this claim is couched in the

Sixth Amendment’s right to counsel and is therefore fully cognizable in federal

court. Despite the district court’s flawed reasoning, we may affirm on any ground

supported by the record. Moody v. Holman, 887 F.3d 1281, 1292 (11th Cir. 2018).

We affirm because Allen’s claim that counsel was ineffective for failing to object

to his life sentence is meritless. In Florida, “[a] court may at any time correct an

illegal sentence imposed by it.” Fla. R. Crim. P. 3.800(a)(1). Because Allen can

object to his sentence at any time, he cannot show that he was prejudiced by his

counsel’s failure to object to the sentence. Accordingly, he cannot satisfy the

second prong of the Strickland test.


                                           14
              Case: 17-11828     Date Filed: 04/03/2019     Page: 15 of 15


                                  VI.    Cumulative Error

      The cumulative error doctrine provides that the aggregation of non-

reversible errors “can yield a denial of the constitutional right to a fair trial, which

calls for reversal.” Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir.

2012) (quotation marks omitted). We first address the validity of each of the

petitioner’s claim individually and then examine any errors in the aggregate and in

light of the trial as a whole. Id. Where there is no actual error, the cumulative-

error claim has no merit. Id.

      Allen’s cumulative error claim has no merit because he has failed to show

any actual errors committed by his trial counsel, as discussed in Parts IV and V.

We therefore affirm.

      AFFIRMED.




                                           15
