              Case: 15-15196     Date Filed: 12/01/2016   Page: 1 of 6

                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                            _______________________

                                  No. 15-15196
                              Non-Argument Calendar
                            _______________________

                       D.C. Docket No. 5:14-cr-00034-RH-l



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                versus

KENNETH HOBSON,

                                                             Defendant-Appellant.

                           ________________________

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


                                (December 1, 2016)


Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      On July 18, 2014, Kenneth Hobson, a federal prisoner, was housed at

Mariana Federal Correctional Institution. While in his cell for a strip search by Lt.
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Benjamin Noblin, Hobson refused to comply; instead, he asked to go to the Lieutenant's

office. As Hobson was going up some steps leading to that office, he concluded that Lt.

Noblin had stepped on his heel. He reacted by striking Lt. Noblin in the face repeatedly,

knocking him unconscious, and while Noblin was unconscious, kicking him in the

head.

        A jury convicted Hobson of assault on a correctional officer, in violation of 18

U.S.C. § 111(a)(1) and (b), and the District Court sentenced him to prison for a term of 92

months. Hobson appeals his conviction, arguing that the Court erred in instructing the jury

on self-defense that self-defense required his actions to have been the "only practical way

to avoid" the correctional officer's use of excessive force. He also argues that the Court

made numerous errors in instructing the jury on the elements of the charged offense and

his defense such that the cumulative effect was to deny him a fair trial. Having considered

the record in the light of the arguments the parties advanced in their briefs, we affirm.

                                              I.

        We review objections to jury instructions de novo to determine whether they

misstated the law or prejudiced the objecting party by misleading the jury. United States

v. House, 684 F.3d 1173, 1196 (11th Cir. 2012). In charging the jury before it retired to

deliberate, the Court instructed them as follows on self-defense:




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         An inmate who uses force against a correctional officer acts in self-defense
      only if three things are all true. First, the inmate must reasonably believe that
      the officer is about to use excessive force against the inmate —that a use of
      excessive force is imminent. Second, the inmate must reasonably believe that
      the only practical way to avoid the officer's use of excessive force is for the
      inmate to himself use force against the officer. And third, the inmate must use
      only the amount of force that the inmate reasonably believes is necessary to
      avoid the officer's use of excessive force against the inmate.

         An inmate 'reasonably believes' something only if the inmate actually
      believes it and, in addition, a reasonable person in the same circumstances
      would believe it. What an inmate 'actually believes' is a subjective
      standard—it refers to what the specific, individual inmate believes. What a
      reasonable person would believe is an objective standard—it refers to what a
      reasonable person would believe in the same circumstances, not what this
      specific, individual inmate actually believes. An inmate acts in self-defense
      only when the subjective and objective standards are both met.

Doc. 64-2 at 7-8 (emphasis added).

      On appeal, Hobson argues that the District Court should have instructed the

jury that his use of force must only have been "reasonably necessary" to qualify as

self-defense. He contends that the Court erred by requiring the jury to find that he

acted in self-defense only if his actions were the "only practical way" he could

have avoided bodily harm—that its instruction imposed a duty to retreat that the

common law of self-defense does not impose. The error, he says, likely affected

the verdict because the issue of self-defense was "hotly contested" and much of the

Government's argument relied on the erroneous "only practical way" standard.




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       Hobson did not object to the self-defense instruction in conformance with

Federal Rule of Criminal Procedure 30(d).1 Where, as here, the defendant objects to

a jury instruction for the first time on appeal, we review the objection only for plain

error. Id. To demonstrate plain error, the defendant must establish that:

(1) the district court erred; (2) the error was plain or obvious; (3) the error affected his

substantial rights; and (4) the error damaged the fairness, integrity, or

reputation of the court proceedings. See House, 684 F.3d at 1197. To be plain or

obvious, the error must be contrary to an explicit statutory provision or our on-point

precedent or on-point precedent of the Supreme Court. United States v. Hoffman,

710 F.3d 1228, 1232 (11th Cir. 2013).

       A defendant who is violently assaulted in a place where he has a right to be

has the right to use force against his assailant. Beard v. United States, 158 U.S. 550,

562, 15 S. Ct. 962, 966, 39 L. Ed. 1086 (1895). Under Beard, the defendant's use of

force is justified if he reasonably believed that use of force was necessary to prevent

death or great bodily harm. Id.
___________________
      1
        Rule 30. Jury Instructions, states, in pertinent part:

       (d) Objections to Instructions. A party who objects to any portion of the
       instructions or to a failure to give a requested instruction must inform the court of
       the specific objection and the grounds for the objection before the jury retires to
       deliberate. An opportunity must be given to object out of the jury's hearing and, on
       request, out of the jury's presence. Failure to object in accordance with this rule
       precludes appellate review, except as permitted under Rule 52(b).
Fed. R. Crim. P. 30(d). Rule 52(b) provides for plain error review of an objection not
brought to the trial court's attention.
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       We have noted that a defendant claiming self-defense is under a duty to retreat and

avoid confrontation, but that the duty is not absolute. United States v. Blevins, 555 F.2d

1236, 1238-39 (5th Cir. 1977). We explained that there is an exception to the duty where

the defendant reasonably believed that he was in imminent danger of death or serious

bodily harm. Id. In Blevins, the District Court instructed the jury that the defendant "must

avoid the attack if it is possible to do so, and the right of self-defense does not arise until he

has done everything in his power to prevent its necessity." Id. at 1239. While we have

determined that the "better practice" is for a self-defense instruction to be phrased

positively—that is, to state that the defendant is not required to retreat if he reasonably

believes that he is in imminent danger of death or serious bodily harm—we have also

upheld jury instructions phrased negatively—that is, stating that the defendant is required

to retreat unless he reasonably believes that he is in imminent danger of death or serious

bodily harm. Id. at 1239 n.l.

       We review for plain error Hobson's challenge to the District Court's use of the

phrase "only practical way to avoid" in its self-defense instruction because he only

objects to the absence of an additional instruction to clarify that phrase. He does not

contend that the Court's instruction prescribed an incorrect legal standard. Hobson has not

shown that the Court's instruction was plainly erroneous because he has pointed to no

on-point, binding precedent showing that the instruction


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misstated the law and probably caused an incorrect verdict. See Wright, 392 F.3d at

1279.

                                           II.

        The so-called cumulative-error doctrine provides for a reversal where an

aggregation of non-reversible errors yields a denial of the constitutional right to a

fair trial. United States v. Capers, 708 F.3d 1286, 1299 (11th Cir. 2013). Where

there is no error in any of the district court's rulings, reversal under the

cumulative-error doctrine is obviously inappropriate. See United States v. Taylor,

All F.3d 1176, 1182 (11th Cir. 2005). Here, Hobson must demonstrate plain error

because, as noted above, he did not object to the Court instructions in conformance

with Rule 33(d). He has failed to do that.

        AFFIRMED.




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