                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            APR 12, 2007
                             No. 06-15397                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 06-60764-CV-WPD

JOSEPH C. MAGNOTTI,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY FOR THE DEPARTMENT
OF CORRECTIONS,

                                                        Respondent-Appellee.


                       ________________________

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

                             (April 12, 2007)

Before DUBINA, CARNES and FAY, Circuit Judges.

PER CURIAM:
       Joseph C. Magnotti, a Florida prisoner serving a 25-year sentence for

robbery, appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habeas

corpus petition. The Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-32, 110 Stat. 1214 (1996), governs this appeal because

Magnotti filed his § 2254 petition after the effective date of the AEDPA. The

district court granted a certificate of appealability (“COA”) as to the following two

issues: (1) whether sufficient evidence supported Magnotti’s conviction; and

(2) whether Magnotti received ineffective assistance of his trial counsel. For the

reasons set forth more fully below, we affirm.

       Magnotti filed a 28 U.S.C. § 2254 petition in the district court alleging that

the evidence was insufficient to support his conviction and that he received

ineffective assistance of his trial counsel.1 With regard to his ineffective-

assistance-of-counsel claim, Magnotti asserted that his trial counsel was ineffective

for failing to request jury instructions on the lesser included offenses of theft and

attempted robbery, and for requesting instructions on the lesser included offense of

robbery by sudden snatching, where the evidence supporting the robbery charge


       1
         Magnotti raised two separate claims of ineffective assistance of trial counsel: (1) counsel
failed to request jury instructions on lesser included offenses; and (2) counsel failed to object to
the prosecutor’s improper arguments. The district court granted a COA only as to Magnotti’s
argument that his counsel was ineffective for failing to request jury instructions on lesser
included offenses. Accordingly, Magnotti’s remaining claim of ineffective assistance is not
presently before this Court.

                                                 2
was not overwhelming. The state opposed Magnotti’s § 2254 petition and attached

relevant portions of the state court record, which set forth the following procedural

and factual history.

      At Magnotti’s trial, Sally Wood testified as the state’s first witness. Wood

testified that, on July 13, 2001, she had been working as a bank teller for

approximately one and one half months. As part of her training for her bank teller

job, she was instructed that, if the bank was robbed, she should do exactly what the

robber asked and, after the robbery was over, she should write down all the details

and not talk to anyone. At approximately 3:30 on a busy Friday afternoon at the

bank, Wood called the next customer in line to her window. Magnotti walked up

to Wood’s window and said, “[t]his is a hold-up, I want your hundreds, fifties and

twenties, now.” Magnotti did not display a weapon. Wood began to put money up

on her counter and she felt “[e]xtremely upset, nervous, afraid.” Wood stated that,

because there was a very thick wall between herself and Magnotti, she knew that

he could not get to her, but that she “was deathly afraid.” Wood then gave

Magnotti the money and he left the bank. Wood next went to the back room of the

bank and wrote down her description of Magnotti.

      On cross-examination, Wood testified that she did not think any person

could get to her through the glass that separated her from the customers and that



                                          3
Magnotti did not yell or make any threats. She further stated that she “was not in

fear of death, but [she] was deathly scared, the mere fact of somebody coming up

and demanding money.” Wood stated that she knew she could not be hurt because

of the wall between her and Magnotti. On re-direct, Wood testified that she did not

see a weapon, but that she had no idea whether Magnotti had a weapon or not. She

further stated that she was scared to death and she was in fear.

      Magnotti elected not to testify in his own defense, nor did he provide any

defense witnesses. Magnotti moved for judgment of acquittal, arguing that the

evidence did not support the charge of robbery. The district court denied the

motion. Magnotti’s counsel then requested that the court instruct the jury on the

lesser included offense of robbery by sudden snatching, but declined to request

instructions on any other lesser included offenses. The trial court next gave the

jury charge, instructing the jury that, if it found that the state had not proved the

elements of robbery beyond a reasonable doubt, that it would have to decide if the

state proved the elements of the lesser included offense of robbery by sudden

snatching. The jury found Magnotti guilty of robbery as charged in the

information. Thereafter, the trial court sentenced Magnotti to 25 years’

imprisonment.

      Magnotti appealed his conviction and sentence to the Fourth District Court



                                            4
of Appeal of Florida, arguing that the trial court had erred in denying his motions

for acquittal and a new trial on the grounds that the evidence presented at trial did

not establish beyond a reasonable doubt that Wood would have been in fear of

great bodily injury or death, as was required by the robbery statute. The state

appellate court affirmed Magnotti’s conviction and sentence. In so doing, the state

court cited Florida’s robbery statute, Fla. Stat. § 812.13(1). The court found that

the “fear” contemplated by the robbery statute would be established “if the

circumstances attendant to the robbery were such as to ordinarily induce fear in the

mind of a reasonable person,” regardless of the actual state of mind of the victim.

The court then concluded that, in Magnotti’s case, the victim testified that she was

afraid and, moreover, the circumstances were such that the jury could conclude that

the victim would have had fear of death or great bodily harm because:

(1) Magnotti’s use of the phrase “hold-up” connoted a forcible robbery; (2) an

ordinary person in Wood’s place would have feared that Magnotti had a weapon

that he would have used to get the money; and (3) the glass between Magnotti and

Wood would not have sufficed to remove the fear of an ordinary person in Wood’s

position. The court thereafter denied Magnotti’s motion for rehearing and mandate

issued on May 23, 2003. On September 5, 2003, the Florida Supreme Court

declined to exercise its discretionary jurisdiction.



                                            5
      Magnotti then petitioned for post-conviction relief pursuant to Fla.R.Crim.P.

3.850, arguing, among other things, that his trial counsel was ineffective for

requesting the jury instruction on robbery by sudden snatching and for failing to

request jury instructions on the lesser included offense of petit theft. The state

responded that Magnotti had not demonstrated that he suffered prejudice, as

required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984), because the evidence overwhelmingly established that

Magnotti committed robbery and, further, that there was no reasonable probability

that the jury would have convicted him of a lesser offense. The state court denied

Magnotti’s Rule 3.850 motion for the reasons indicated in the state’s response.

Magnotti appealed the denial of his Rule 3.850 motion to the state appellate court,

and the court denied the motion without opinion. After the state appellate court

denied Magnotti’s motions for certification and rehearing, mandate issued on

March 10, 2006.

      Based upon the above-detailed record, the district court denied Magnotti’s

§ 2254 petition. Magnotti moved for a COA, which the district court granted on

these two issues only: (1) whether there was sufficient evidence to support

Magnotti’s robbery conviction; and (2) whether Magnotti’s counsel was ineffective

for failing to request jury instructions on lesser included offenses.



                                           6
      We review a district court’s grant or denial of a § 2254 petition de novo,

while the court’s factual findings are reviewed for clear error. See Sims v.

Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). Mixed questions of law and

fact, including ineffective assistance of counsel claims, are reviewed de novo. Id.

      As amended by the AEDPA, 28 U.S.C. § 2254(d) forbids federal courts

from granting habeas relief on claims that were previously adjudicated in state

court, unless the adjudication was (1) “contrary to, or involved an unreasonable

application of, clearly established federal law, as determined by the United States

Supreme Court,” or (2) “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). A state court decision is “contrary to” clearly established federal law if

either “(1) the state court applied a rule that contradicts the governing law set forth

by Supreme Court case law, or (2) when faced with materially indistinguishable

facts, the state court arrived at a result different from that reached in a Supreme

Court case.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). An

“unreasonable application” of clearly established federal law may occur if the state

court “identifies the correct legal rule from Supreme Court case law but

unreasonably applies that rule to the facts of the petitioner’s case.” Id. “An

unreasonable application may also occur if a state court unreasonably extends, or



                                           7
unreasonably declines to extend, a legal principle from Supreme Court case law to

a new context.” Id.

      Moreover, a state court’s factual findings are presumed correct, and the

petitioner can rebut them only by clear and convincing evidence. See 28 U.S.C.

§ 2254(e)(1). As such, for a state court’s adjudication to result in an unreasonable

determination of the facts in light of the evidence presented, “[n]ot only must the

factual determination have been unreasonable, but the state court’s factual findings

must be shown unreasonable by clear and convincing evidence.” Callahan v.

Campbell, 427 F.3d 897, 926 (11th Cir. 2005), cert. denied, 127 S.Ct. 427 (2006).

                          A. Sufficiency of the Evidence

      Magnotti argues on appeal that, pursuant to the Florida robbery statute and

case law cited by the state appellate court, the state had to prove that Wood had

fear of death or great bodily harm from his actions. Magnotti maintains that a

finding that a reasonable person would have been objectively afraid is unsupported

by the evidence because: (1) Wood testified that she was not in fear of death or

bodily harm; (2) there was a secure barrier between Wood and Magnotti; (3) the

bank’s procedures required Wood not to resist Magnotti’s demands; (4) Magnotti

did not have a weapon; and (5) Magnotti did not make any threats or loud, sudden

movements. He further argues that even a subjective fear of death or bodily injury



                                          8
was not present in his case in light of Wood’s testimony. He also asserts that the

state court’s reliance on certain state precedent was contrary to established

Supreme Court precedent.

      In Jackson v. Virginia, the Supreme Court held that, when reviewing the

sufficiency of the evidence, the “critical inquiry” is “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89 (emphasis in original). The

Supreme Court noted that it is the duty of the trier of fact “to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts,” and a reviewing court may not substitute its judgment as to

whether it believes the evidence to be sufficient to sustain a conviction. Id.

      In Florida, the offense of robbery is defined as:

      the taking of money or other property which may be the subject of
      larceny from the person or custody of another, with intent to either
      permanently or temporarily deprive the person or the owner of the
      money or other property, when in the course of the taking there is the
      use of force, violence, assault, or putting in fear.

Fla. Stat. § 812.13(1).

      Here, to the extent that Magnotti argues that the sufficiency-of-the-evidence

standard used by the state appellate court was contrary to, or an unreasonable



                                            9
application of, clearly established federal law, his argument is without merit. It is

noteworthy that the state court did not cite Jackson in reviewing Magnotti’s

sufficiency-of-the-evidence challenge. Nonetheless, Magnotti does not point out

any part of the state court’s decision that was contrary to Jackson, and the record

establishes that the state court considered the evidence in the light most favorable

to the state, cited the relevant state law, and did not re-weigh the evidence. See

Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89; see also Early v. Packer, 537

U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002) (holding that a state court

does not have to cite to Supreme Court “cases–indeed, [§2254(d)] does not even

require awareness of [its] cases, so long as neither the reasoning nor the result of

the state-court decision contradicts them”).

      As to the question of whether there was sufficient evidence to support the

“putting in fear” element of Magnotti’s robbery conviction, the state court

determined that its precedent required a showing that the robbery would have

“ordinarily induced fear in the mind of a reasonable person.” See State v. Baldwin,

709 So.2d 636, 637 (Fla. Dist. Ct. App. 1998). According to Baldwin, the state

does not have to prove that the defendant’s conduct was itself threatening or

forceful, but only that “the conduct would induce fear in the mind of a reasonable

person notwithstanding that the conduct is not expressly threatening.” Baldwin,



                                          10
709 So.2d at 637-38. Magnotti does not contend that the Baldwin standard is not

the proper standard for determining whether he put Wood in fear during the

incident. Rather, he argues that the evidence established that Wood had no fear.

The evidence presented at trial demonstrated that Magnotti walked into a bank,

stated that it was a “hold-up,” and demanded money. Moreover, Wood testified

that she was “deathly afraid” during the robbery as she placed the money on the

counter. Such evidence was sufficient to establish that Magnotti’s conduct would

have induced fear in the mind of a reasonable person, notwithstanding Magnotti’s

argument that his conduct was not expressly threatening. See Baldwin, 709 So.2d

at 637-38. Thus, the state court’s analysis was not contrary to, and did not involve

an unreasonable application of, clearly established federal law. Accordingly, the

district court did not err in denying Magnotti’s § 2254 petition as to his

insufficiency-of-the-evidence claim.

                              B. Assistance of Counsel

      Magnotti argues that his counsel was deficient in requesting a jury

instruction on the offense of robbery by sudden snatching because that offense was

not actually a lesser included offense to robbery and, further, was not supported by

the evidence from his trial. He further argues that, in light of the facts of his case,

his counsel should have requested jury instructions on simple theft, grand theft,



                                           11
and attempted robbery. Magnotti contends that his counsel’s decision to not

request instructions on other offenses was not entitled to deference because, as the

district court noted, it was an inexplicable decision. He also asserts that he

suffered prejudice as a result of his counsel’s decisions because the evidence left

the jury with nothing to debate as to his guilt on the robbery charge and, because

his counsel did not request instructions on lesser included offenses, the jury had no

alternative offense for which to convict him. Magnotti lastly argues that the state

court and district court erred in denying his request for an evidentiary hearing on

the issue of his counsel’s ineffective assistance.

      The Sixth Amendment provides that a criminal defendant shall have the

right to “the assistance of counsel for his defense.” U.S. Const. amend. VI. When

a convicted defendant claims that his counsel’s assistance was ineffective, the

defendant must show that (1) counsel’s performance was deficient, and (2) the

deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.

Ct. at 2064. “For performance to be deficient, it must be established that, in light

of all the circumstances, counsel’s performance was outside the wide range of

professional competence.” Putman, 268 F.3d at 1243. Reviewing courts must be

highly deferential in reviewing a counsel’s performance, and must utilize the

strong presumption that counsel’s performance was reasonable. Chandler v.



                                           12
United States, 218 F.3d 1305, 1314 (11th Cir. 2000) (en banc). “[B]ecause

counsel’s conduct is presumed reasonable, for a petitioner to show that the conduct

was unreasonable, a petitioner must establish that no competent counsel would

have taken the action that his counsel did take.” Id. at 1315. Under the prejudice

prong, the defendant must show “that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694, 104 S. Ct. 2068. “A reasonable probability

is a probability sufficient to undermine confidence in the outcome.” Id.

      In Magnotti’s case, the state court decision was not contrary to, or an

unreasonable application of, clearly established federal law. First, while the state

court decision denying Magnotti’s ineffective-assistance-of-counsel claim did not

directly cite Strickland, the court nonetheless denied the claim for the reasons

indicated in the state’s response to Magnotti’s Rule 3.850 motion, which explicitly

relied upon Strickland. Thus, the state court correctly identified Strickland as the

controlling law and properly applied it to Magnotti’s ineffective-assistance-of-

counsel claim. See Robinson v. Moore, 300 F.3d 1320, 1343 (11th Cir. 2002)

(holding that, “[i]t is well established that the Supreme Court’s decision in

Strickland is the controlling legal authority to be applied to ineffective assistance

of counsel claims”) (quotation omitted).



                                           13
      Moreover, the state court did not unreasonably apply the law from

Strickland to the facts of Magnotti’s case. Here, the state court and the district

court determined that Magnotti failed to establish that he suffered prejudice as a

result of his counsel’s decisions. As discussed in issue one above, the evidence

presented at Magnotti’s trial was sufficient to sustain a conviction for robbery. As

such, even assuming without deciding that Magnotti’s counsel was deficient in

failing to request jury instructions on other lesser included offenses, that deficiency

does not suggest that there was a reasonable probability that the outcome would

have been different because the jury had sufficient evidence to find Magnotti guilty

of the greater offense of robbery. See Strickland, 466 U.S. at 694-94, 104 S.Ct. at

2068 (explaining that a reviewing court should presume that the jury acted

according to law). Therefore, Magnotti’s argument, that the jury would have

convicted him of a lesser offense had it been given the instructions on such an

offense, is not conclusive where the jury properly convicted him of robbery based

upon the evidence presented at trial. Furthermore, the jury would have performed

its duties in violation of the law had it convicted Magnotti of a lesser offense in the

face of sufficient evidence for the greater offense. See id. (holding that “[a]

defendant has no entitlement to the luck of a lawless decisionmaker, even if a

lawless decision cannot be reviewed. The assessment of prejudice should proceed



                                           14
on the assumption that the decisionmaker is reasonably, conscientiously, and

impartially applying the standards that govern the decision. It should not depend

on the idiosyncracies of the particular decisionmaker, such as unusual propensities

toward harshness or leniency”). Similarly, Magnotti’s counsel’s request for

instructions on the lesser offense of robbery by sudden snatching did not prejudice

Magnotti because the jury found Magnotti guilty of robbery based upon sufficient

evidence in the record. Accordingly, the district court properly denied Magnotti’s

§ 2254 petition as to his ineffective-assistance-of-counsel claim because he failed

to show that he suffered prejudice as a result of his counsel’s decisions.

      Magnotti has not met his burden under 28 U.S.C. § 2254(d). In light of the

foregoing, the district court’s denial of Magnotti’s § 2254 petition is

      AFFIRMED.




                                          15
