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                                                                     [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14482
                       ________________________

                D.C. Docket No. 2:10-cv-00744-SPC-DNF



EMERSON PINKNEY,

                                                          Petitioner-Appellant,
                                  versus
SECRETARY, DOC,

                                                         Respondent-Appellee,

FLORIDA ATTORNEY GENERAL,

                                                                     Respondent.
                       ________________________

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

                            (December 6, 2017)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and DUBINA, Circuit
Judges.

ED CARNES, Chief Judge:
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      Emerson Pinkney filed a pro se amended 28 U.S.C. § 2254 petition alleging

that his appellate counsel was ineffective for failing to argue that a jury instruction

given by the trial court was fundamental error under Florida law. The district court

denied his § 2254 petition, and this Court granted a certificate of appealability and

appointed counsel for him. This is Pinkney’s appeal, which is all about Florida’s

fundamental error doctrine.

                                 I. BACKGROUND

      It was about 2:25 in the morning when Emerson Pinkney entered Barbara

Jones’ apartment. Two people who were in the apartment saw him walk in

pointing a gun. Pinkney says he was unarmed. Roy Williams was at the

apartment, and he had his own pistol. Williams and Pinkney were on bad terms

and it involved two women. Pinkney was dating the mother of Williams’ children,

and Pinkney believed that Williams had “cussed . . . out” Pinkney’s mother. Inside

the apartment, Williams and Pinkney started fighting. Pinkney shot Williams in

the head, killing him.

      The State’s second amended information charged Pinkney with four crimes:

manslaughter with a firearm, in violation of Florida Statutes §§ 782.07(1),

775.087; aggravated assault with a firearm, in violation of Florida Statutes

§§ 784.021, 775.087; first degree burglary with assault or battery while armed with

a deadly weapon, in violation of Florida Statutes §§ 810.02, 775.087; and



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possession of a firearm by a convicted felon, in violation of Florida Statutes

§§ 790.23, 775.087(2)(a)(1).

      During Pinkney’s four-day jury trial, the State presented several witnesses.

Latoya Woolfork was Williams’ girlfriend at the time of the shooting, and both she

and Jones were present at Jones’ apartment when Williams was shot. Jones

testified that Pinkney knocked on her apartment door, entered without permission,

and pointed a gun at her. She stated that Pinkney walked toward the right side of

the room after entering and did not see Williams, who was standing to the left side

of the room and also had a gun. Jones testified that she “got up and ran” to the

back of the house, while Woolfork and Williams both stayed in the room. She said

that she then heard a gunshot and Woolfork screaming and she later saw Williams

on the floor.

      Woolfork testified that earlier on the night of the shooting her boyfriend

Williams picked up his “small .22” caliber pistol from his sister’s house. He

decided to get the weapon because he had heard that Pinkney’s mother had told

Pinkney that Williams had “cussed her out.” According to Woolfork, Williams

was “upset” about that because “it was a lie.” She testified that, after they were

inside Jones’ apartment, Pinkney walked in with his gun pointed, and Williams

tried to grab Pinkney’s gun. As Pinkney and Williams started fighting, Woolfork

“was trying to break it up” and “was in the middle of it.” She said that Pinkney



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and Williams fell down, but Pinkney got up before Williams and shot him “[r]ight

straight down into his head.”

       The State also presented witnesses who had investigated the crime. The

detective assigned to the case testified that he did not find any guns or shell casings

at Jones’ apartment. 1 A medical examiner who reviewed Williams’ autopsy report

testified that a bullet entered the top of Williams’ head and went straight down to

the base of his skull. He also testified that, according to the report, there were no

“abnormalities or injuries” to Williams’ hands. And a crime lab analyst from the

Florida Department of Law Enforcement in Tampa testified that the projectile

removed from Williams’ head was from a “.38 Special caliber revolver[ ].”

       Pinkney took the stand in his own defense and was the last witness to testify.

He admitted that he killed Williams, but said that he was not armed on the night of

the incident, and that the shooting was “[o]n accident” and occurred as he was

fighting for his life. He stated that, a few hours before the incident, he had told

Jones that he would swing by her apartment later. When he got to her apartment,

according to Pinkney, he knocked on the door and someone unlocked it. He

testified that, after he entered through the door, someone approached him from

behind and put a gun to the left side of his head, and “out of reflex,” he tried to


       1
          Revolvers do not leave shell casings unless you open the cylinder and dump out the
shells, while semiautomatic pistols immediately eject a spent shell casing upon firing. Williams’
.22 pistol was a semiautomatic.


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grab the gun and fight the person. Pinkney told the jury that he and the other

person each had a hand on the gun, but that he (Pinkney) never had his finger on

the trigger or had complete control of the gun. It was as he was “fighting for [his]

life” that Pinkney heard a “pop!” and saw the other person, along with the gun, fall

to the floor.

       Pinkney insisted that the shooting was accidental. When asked “who killed

Roy Williams,” Pinkney responded: “I did, sir. On accident.” He later confirmed

once more that it was an accident and added: “I didn’t intentionally shoot

[Williams].” He explained to the jury that although he was “angry” and “mad”

after hearing that Williams had disrespected his mother, he was not “mad to the

point where [he wanted] to kill somebody.” Pinkney stated that when he was

fighting Williams, he was fighting for his life, and that there “[a]in’t no fair rules in

fighting for your life,” but he acknowledged that he did not have any cuts on his

hands or any bruises from fighting Williams.

       After closing arguments, the trial court instructed the jury. It first instructed

on the manslaughter charge, stating: “If you find Roy Williams was killed by

Emerson Pinkney, you will then consider the circumstances surrounding the killing

in deciding if the killing was Manslaughter With a Firearm, Manslaughter, or

whether the killing was excusable or resulted from justifiable use of deadly force.”

The court also instructed the jury that the “killing of a human being is excusable,



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and therefore, lawful” if it is “committed by accident” under certain circumstances.

It then told the jury about Pinkney’s affirmative defense of self-defense and the

forcible felony exception to that defense:

       An issue in this case is whether the defendant acted in self defense. It
       is a defense to the offense with which Emerson Pinkney is charged if
       the death of Roy Williams resulted from the justifiable use of force
       likely to cause death or great bodily harm.

       The use of force likely to cause death or great bodily harm is
       justifiable only if the defendant reasonably believes that the force is
       necessary to prevent imminent death or great bodily harm to himself
       while resisting:

               1. Any attempt to commit Manslaughter With a Firearm upon
               him. However, the use of force likely to cause death or great
               bodily harm is not justifiable if you find:

                       (1) Emerson Pinkney was attempting to commit,
                       committing, or escaping after the commission of
                       Manslaughter With a Firearm. 2

Pinkney’s counsel did not object to any of the instructions. The jury found

Pinkney guilty of all four charged crimes, and the court sentenced him to life in

prison.

       Pinkney appealed his conviction. Although his appellate counsel raised

several contentions, he did not challenge the trial court’s forcible felony

instruction. The Florida Second District Court of Appeal summarily affirmed his

conviction. Pinkney v. State, 911 So. 2d 111 (Fla. 2d DCA 2005) (table).

       2
         We will refer to the underlined portion of the trial court’s instructions as the “forcible
felony instruction” or the “forcible felony exception instruction.”


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      A few months later Pinkney filed in the Florida Second District Court of

Appeal a pro se Florida Rule of Appellate Procedure 9.141 petition for writ of

habeas corpus contending, among other things, that his appellate counsel was

ineffective for failing to argue that the trial court committed “fundamental error”

under Florida law in instructing the jury on the forcible felony exception to self-

defense. The court of appeal summarily denied Pinkney’s petition. Pinkney v.

State, 941 So. 2d 379 (Fla. 2d DCA 2006) (table).

      Pinkney then filed in federal court an amended pro se § 2254 petition for

habeas corpus claiming, among other things, that his “appellate counsel was

ineffective for fail[ing] to raise fundamental error in [the] jury instructions.” The

district court rejected that claim, stating that the instruction was “constitutionally

acceptable” and that Pinkney’s appellate counsel “cannot be faulted for [not]

raising a meritless issue.” The court dismissed some of his remaining claims and

denied the others, and Pinkney appealed.

      We granted a certificate of appealability on one question: “Whether the

district court erred when it denied Pinkney’s claim that his appellate counsel

rendered ineffective assistance by failing to argue that the state trial court

committed a fundamental error when it instructed the jury on the defenses of self-

defense and justifiable use of deadly force?” We appointed Michael Pusateri to

represent Pinkney in this appeal.



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                                 II. DISCUSSION

                 A. The Strickland And Section 2254(d) Standards

      A federal court may not grant habeas relief on claims that were previously

adjudicated in state court unless the adjudication resulted in a decision that “was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States,” or “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). Where a state court’s decision is

unaccompanied by an opinion explaining why the court denied relief, a federal

habeas court “must determine what arguments or theories . . . could have

supported[ ] the state court’s decision; and then it must ask whether it is possible

fairminded jurists could disagree that those arguments or theories are inconsistent

with the holding in a prior decision of [the Supreme] Court.” See Harrington v.

Richter, 562 U.S. 86, 98, 102, 131 S. Ct. 770, 784, 786 (2011).

      To succeed on an ineffective assistance of counsel claim, a defendant must

establish (1) “that counsel’s performance was deficient” and (2) “that the deficient

performance prejudiced the defense.” See Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984). To show deficient performance, the defendant

“must establish that no competent counsel would have taken the action that his

counsel did take.” United States v. Freixas, 332 F.3d 1314, 1320 (11th Cir. 2003)



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(quotation marks omitted). To show prejudice, 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. at 2068.

      “Surmounting Strickland’s high bar is never an easy task.” Harrington, 562

U.S. at 105, 131 S. Ct. at 788 (quotation marks omitted). And “[e]stablishing that

a state court’s application of Strickland was unreasonable under § 2254(d) is all the

more difficult. The standards created by Strickland and § 2254(d) are both ‘highly

deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id.

(citations omitted). As a result, when § 2254(d) applies, as it does here, “the

question is not whether counsel’s actions were reasonable. The question is

whether there is any reasonable argument that counsel satisfied Strickland’s

deferential standard.” Id. And although “the issue of ineffective assistance —

even when based on the failure of counsel to raise a state law claim — is one of

constitutional dimension,” we “must defer to the state’s construction of its own

law” when the validity of the claim that appellate counsel failed to raise turns on

state law. Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984),

superseded by statute on other grounds, Insanity Defense Reform Act of 1984,

Pub. L. No. 98-473, 98 Stat. 2057; see Agan v. Vaughn, 119 F.3d 1538, 1549 (11th




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Cir. 1997) (“[S]tate courts are the final arbiters of state law, and federal habeas

courts should not second-guess them on such matters.”).

                             B. Why The Instruction Was Error

      As Pinkney contends, and the State concedes, the forcible felony instruction

the trial court gave was erroneous. Under Florida law a person is justified in using

deadly force if he reasonably believes that it is necessary to prevent “imminent

death or great bodily harm to himself” or another. Fla. Stat. § 776.012(2). But that

defense is subject to exceptions, one of which is known as the forcible felony

exception, which provides that the “justification [defense] is not available to a

person who . . . [i]s attempting to commit, committing, or escaping after the

commission of, a forcible felony . . . .” Id. § 776.041(1).

      Florida courts have held that the forcible felony exception instruction applies

only when the defendant is committing an independent forcible felony separate

from the one for which he is claiming self-defense. See Martinez v. State, 981 So.

2d 449, 454 (Fla. 2008); see also Giles v. State, 831 So. 2d 1263, 1265 (Fla. 4th

DCA 2002) (explaining that the plain language of § 776.041(1) “indicates that it is

applicable only under circumstances where the person claiming self-defense is

engaged in another, independent ‘forcible felony’ at the time”). For that reason,

Florida appellate courts have held that an instruction is erroneous if it lists the

forcible felony with which the defendant is charged as the one that keys the



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exception which locks out self-defense. See Zuniga v. State, 869 So. 2d 1239,

1240 (Fla. 2d DCA 2004); see also, e.g., Martinez, 981 So. 2d at 453–54 (holding

that the trial court erred in instructing the jury that the use of deadly force would

not be justifiable if the defendant was attempting to commit an attempted murder

or aggravated battery because those were “the very crimes [the defendant]

attempted to justify as having been committed in self-defense”); Giles, 831 So. 2d

at 1266 (holding that the trial’s court forcible felony instruction was erroneous

because the defendant had been charged with only one forcible felony and, as a

result, the instruction “basically negated [the defendant’s] defense” because it

“improperly told the jury that the very act [the defendant] sought to justify itself

precluded a finding of justification”).

      In giving the self-defense instruction on the manslaughter charge, the trial

court instructed the jury that Pinkney was not entitled to claim self-defense to the

charge of manslaughter if he was committing or attempting to commit

manslaughter. That instruction was circular because under it the act of

manslaughter ruled out the defense of self-defense to the charge of manslaughter.

See Martinez, 981 So. 2d at 453–54; Zuniga, 869 So. 2d at 1240. It was error for

the trial court to give an instruction that had the effect of removing the defense of

self-defense from the case.




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      In deciding otherwise, the district court noted that “both trial counsel and

appellate counsel found no error” in the instruction. But that does not matter

because courts decide issues of law, counsel do not. The district court added that

the instruction “mirrors” Florida’s model jury instruction on the justifiable use of

deadly force. But the question is not whether the instruction that was given

misstated the model jury instruction language on the subject, but whether it suffers

from a flaw that the Florida appellate courts have held renders it erroneous. It

does. Because Pinkney asserted self-defense to the manslaughter charge and the

instruction listed manslaughter as an exception to the forcible felony doctrine in a

manslaughter case, it was error under Florida law. See Zuniga, 869 So. 2d at 1240.

That does not necessarily mean that Pinkney is entitled to habeas relief. That

depends on whether the error is fundamental error under Florida law.

          C. Why It Matters If The Error Was Fundamental Under Florida Law

      Under Florida law, if a defendant fails to object to a jury instruction at trial,

the instruction may be challenged on appeal only if it amounts to “fundamental

error.” See State v. Delva, 575 So. 2d 643, 644 (Fla. 1991) (“Instructions . . . are

subject to the contemporaneous objection rule, and, absent an objection at trial, can

be raised on appeal only if fundamental error occurred.”). That means unless the

unpreserved jury instruction error that appellate counsel failed to raise is

fundamental error, the Florida appellate courts would not have granted relief even



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if counsel had raised it on appeal. See id.; Rutherford v. Moore, 774 So. 2d 637,

646 (Fla. 2000) (“Because this issue was not preserved for review, if it had been

raised on appeal, it would have warranted reversal only if it constituted

fundamental error . . . .”). Fundamental error, the Florida decisions teach, is “error

that reaches down into the validity of the trial itself to the extent that a verdict of

guilty could not have been obtained without the assistance of the alleged error.”

Kilgore v. State, 688 So. 2d 895, 898 (Fla. 1996) (alteration and quotation marks

omitted).

      It follows that, unless the instruction error is fundamental, Pinkney’s claim

of ineffective assistance of appellate counsel fails for two reasons. First, an

attorney will not be held to have performed deficiently for failing to perform a

futile act, one that would not have gotten his client any relief. See Lindsey v.

Smith, 820 F.2d 1137, 1152 (11th Cir. 1987) (holding that a habeas petitioner who

claims counsel should have followed a strategy that would itself have proven futile

has not shown that counsel’s performance was deficient); Freeman v. Att’y Gen.,

536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot be deficient for failing to

raise a meritless claim.”); Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136,

1142 (11th Cir. 2005) (“Under Florida law, an error that passed without objection

cannot be raised on appeal; appellate counsel, therefore, is not ineffective for

failure to raise a meritless argument.”); Chandler v. Moore, 240 F.3d 907, 917



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(11th Cir. 2001) (holding that appellate counsel could not be ineffective under

Strickland for failing to raise a futile issue); see also Aparicio v. Artuz, 269 F.3d

78, 96 (2d Cir. 2001) (holding that appellate counsel could not be ineffective for

failing to make an argument that “would have been futile because the argument

had already been waived by trial counsel’s failure to raise the objection”).

      Second, a petitioner cannot show prejudice from the failure of an appellate

counsel to raise an issue that would not have been considered on appeal because it

was not raised in the trial court. See Diaz, 402 F.3d at 1144–45 (concluding that

the failure to raise an issue in the trial court rendered the claim non-meritorious,

and as a result appellate counsel did not provide ineffective assistance by failing to

raise that claim on appeal); see also Brown v. United States, 720 F.3d 1316, 1335

(11th Cir. 2013) (“It is . . . crystal clear that there can be no showing of actual

prejudice from an appellate attorney’s failure to raise a meritless claim.”).

Prejudice requires a reasonable probability of a different result, Strickland, 466

U.S. at 694, 104 S. Ct. at 2068, and there is no reasonable probability that the

result of an appeal would have been different if appellate counsel had raised an

issue the court would have refused to consider because it was not preserved in the

trial court. So prejudice, as well as performance deficiency, turns on whether the

instruction error was fundamental.




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    D. The Florida Court’s Decision Was Based On The Instruction Not Being
                Fundamental Error, Which Is A State Law Issue

      The State contends that the fundamental error determination is not really up

to us. It argues that, in assessing a claim of ineffective assistance based on

appellate counsel’s failure to raise an unpreserved error, Florida courts must first

determine whether the error was fundamental error. And only if those courts

determine that the error was fundamental can they conclude that counsel was

ineffective. Because the Florida Second District Court of Appeal denied Pinkney’s

state habeas petition, the State contends that the Florida court has already

determined, albeit implicitly, that the error was not fundamental error, and this

Court must defer to the “Florida court’s underlying determinations of state law.” If

so, Pinkney cannot show ineffective assistance under Strickland. We agree.

      As the Supreme Court stated in its Harrington decision, our task is to

determine what arguments or theories “could have supported” the state court’s

decision, and we must deny relief if it “is possible fairminded jurists could” find

that decision was not “contrary to, or involved an unreasonable application of” the

holding in an earlier Supreme Court decision. 562 U.S. at 102, 131 S. Ct. at 786;

see 28 U.S.C. § 2254(d)(1). There are two arguments or theories that could have

supported the Florida appellate court’s decision. One is that while the forcible

felony exception instruction was error, it was not fundamental error. As a result,

appellate counsel’s failure to raise the claim was not professionally deficient for

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Strickland purposes; as we have explained, an attorney is not required to raise on

appeal issues that will not lead to any relief for the defendant, and that includes

issues that were not properly preserved in the trial court. See supra pp. 13–14. In

addition, as we have also explained, a petitioner cannot show prejudice from an

appellate counsel’s failure to raise an issue that would not have been decided

because it was not preserved in the trial court. See supra p. 14.

      The only other argument or theory that could have supported the Florida

appellate court’s decision denying Pinkney relief is that, even if the instruction

error did amount to fundamental error under Florida law, counsel’s failure to raise

it was not ineffective assistance of counsel. That theory, we may and do assume,

would have been contrary to or an unreasonable application of prior Supreme

Court decisions: Strickland and its progeny. We may make that assumption

because it does not matter to the result of this case. It doesn’t matter to the result

because when faced with a summary state court decision that is subject to more

than one interpretation, we must choose the interpretation of the decision that is

consistent with the state court knowing and correctly applying federal law,

including ineffective assistance of counsel law. Wilson v. Warden, Ga. Diagnostic

Prison, 834 F.3d 1227, 1240 (11th Cir. 2016) (“[T]he Supreme Court has

instructed us to presume that state courts know and follow the law.”) (alteration

and quotation marks omitted); Allen v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740,



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748 (11th Cir. 2010) (“The usual presumption that state courts know and follow

the law is even stronger in the AEDPA context because § 2254(d)’s highly

deferential standard for evaluating state-court rulings . . . demands that state-court

decisions be given the benefit of the doubt.”) (alteration in original and quotation

marks omitted); Ventura v. Att’y Gen., Fla., 419 F.3d 1269, 1285 (11th Cir. 2005)

(“[T]he Supreme Court has explained that ‘§ 2254(d) requires that state-court

decisions be given the benefit of the doubt. Readiness to attribute error is

inconsistent with the presumption that state courts know and follow the law.’”)

(quoting Holland v. Jackson, 542 U.S. 649, 655, 124 S. Ct. 2736, 2739 (2004)).

      Giving the Second District Court of Appeal decision the benefit of the doubt

and assuming, as we must, that court knew and followed Strickland and other

Supreme Court decisions on ineffective assistance of counsel, we conclude that the

Second District Court of Appeal would have granted Pinkney relief if it had

decided that the instruction error was fundamental error. It would have granted

relief because if the error was fundamental, the direct appeal court could have

decided the issue on the merits, which would mean that appellate counsel’s failure

to raise the issue was ineffective assistance of counsel.

      For these reasons, we interpret the Second District Court of Appeal decision

rejecting Pinkney’s ineffective assistance of appellate counsel claim as having

been based on the theory that while the forcible felony exception instruction was



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error, it was not fundamental error and, as a result, the direct appeal court would

not have decided that claim on the merits if appellate counsel had raised the claim.

      Pinkney argues, in effect, that we should not interpret the Second District

Court of Appeal decision that way because the instruction error was fundamental;

he says, in effect, that the state appellate court was wrong not to recognize the error

as fundamental. That argument fails for two reasons. One is that the fundamental

error question is an issue of state law, and state law is what the state courts say it

is. See Alvord, 725 F.2d at 1291; Agan, 119 F.3d at 1549. As the Supreme Court

and this Court have repeatedly acknowledged, it is not a federal court’s role to

examine the propriety of a state court’s determination of state law. See Estelle v.

McGuire, 502 U.S. 62, 67–68, 112 S. Ct. 475, 480 (1991) (“[I]t is not the province

of a federal habeas court to reexamine state-court determinations on state-law

questions.”); Wainwright v. Goode, 464 U.S. 78, 84, 104 S. Ct. 378, 382 (1983)

(stating that the views of state appellate courts with respect to state law “are

binding on the federal courts”); see also Bates v. Sec’y, Fla. Dep’t of Corr., 768

F.3d 1278, 1303 (11th Cir. 2014) (“[T]he Florida Supreme Court’s interpretation

of state law . . . is binding on federal courts.”); Reaves v. Sec’y, Fla. Dep’t of

Corr., 717 F.3d 886, 903 (11th Cir. 2013) (same). The second reason we reject

Pinkney’s argument is that we ourselves don’t believe that the instruction error was

fundamental error.



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         E. Why The Error Was Not Fundamental Error Under Florida Law

       Alternatively, even if the issue were ours to decide, we would conclude that

the error involving the forcible felony exception instruction was not fundamental

error under Florida law. As we explained earlier, Florida courts define

fundamental error as “error that reaches down into the validity of the trial itself to

the extent that a verdict of guilty could not have been obtained without the

assistance of the alleged error.” Kilgore, 688 So. 2d at 898 (alteration and

quotation marks omitted). Given that demanding standard, the Florida Supreme

Court has explained that the “doctrine of fundamental error should be applied only

in rare cases where a jurisdictional error appears or where the interests of justice

present a compelling demand for its application.” Smith v. State, 521 So. 2d 106,

108 (Fla. 1988). “The fundamental nature of [an] error can be gleaned only from a

review of the full record on appeal.” Baker v. State, 877 So. 2d 856, 858 (Fla. 2d

DCA 2004) (quotation marks omitted). The facts of the cases involving the issue

illustrate that.

       The Smith case involved a “faulty instruction” on the defense of insanity.

See Smith, 521 So. 2d at 107. Although the Florida Supreme Court in an earlier

decision had determined that the same instruction did not “completely and

accurately state th[e] law,” see id. (quoting Yohn v. State, 476 So.2d 123, 128 (Fla.




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1985)),3 in Smith the Florida Supreme Court reasoned that the erroneous

instruction was not “so flawed as to deprive [the] defendants claiming the defense

of insanity a fair trial” because “the [old] standard jury instructions, as a whole,

made it quite clear that the burden of proof was on the state to prove all the

elements of the crime beyond a reasonable doubt.” Id. at 108. As a result, the

error was not fundamental. Id.

       Along the same lines, in Holiday v. State, the Florida Supreme Court

considered whether the trial court committed fundamental error in giving an

instruction on the affirmative defense of entrapment that did not accurately set

forth the burden of proof. 753 So. 2d 1264, 1265 (Fla. 2000). The court held that,

because “the situation” was “substantially similar to the situation” in the Smith

decision, based on the Smith court’s reasoning, “it was not fundamental error to

give [that] instruction on entrapment even though such instruction did not

accurately reflect the burden of proof analysis set forth by this Court in [an earlier

decision].” Id. at 1269–70. The court also noted that “the entrapment defense in

this case was tenuous at best and the facts [did] not present a compelling demand

for relief.” Id. at 1270 n.3.



       3
          The old version of the instruction, which was the one given at Smith’s trial, was not
clear on the point that under Florida law, if there is enough evidence presented to create a
reasonable doubt about sanity, “the presumption of sanity vanishes and the state must prove
beyond a reasonable doubt that the defendant was sane.” Smith, 521 So. 2d at 108.


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       The Florida Supreme Court’s decision in Martinez addressed the

“interaction” between an erroneous forcible felony instruction and fundamental

error, which is the issue before us. 981 So. 2d at 451, 454–55. The defendant was

charged with attempted premeditated murder and aggravated battery with a deadly

weapon for the single act of stabbing his girlfriend, and he asserted self-defense.

Id. at 450. He did not object to the trial court’s erroneous forcible felony

instruction. Id. He appealed his conviction for attempted first degree premeditated

murder arguing that the forcible felony instruction that was given was fundamental

error. Id. at 450–51.

       The Florida Supreme Court disagreed. Id. at 457. It explained that an

erroneous jury instruction on an affirmative defense does not always constitute

fundamental error. See id. at 455. Instead, it held, “fundamental error only occurs

where a jury instruction is ‘so flawed as to deprive defendants claiming the defense

. . . of a fair trial.’” Id. (alteration in original) (quoting Smith, 521 So. 2d at 108).

After reviewing the record, the court provided two reasons why fundamental error

did not occur in that case. Id. at 455–56. “First,” it stated, “self-defense was not

the only strategy pursued by [the defendant].” Id. at 456. So “although the

forcible-felony instruction was erroneous and could have confused the jury, it did

not deprive [the defendant] of his sole, or even his primary, defense strategy.” Id.

Second, the defendant’s “claim of self-defense was extremely weak.” Id. The



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court said that the defendant’s self-defense claim “strained even the most remote

bounds of credulity” and that he provided inconsistent testimony and a “very

questionable hypothesis” about how the victim got one of her wounds. Id. For

those reasons, the court concluded, “even if an erroneous forcible-felony

instruction could constitute fundamental error in some circumstances — an issue

we decline to address today — the instant case most certainly does not present a

compelling demand for the application of the fundamental-error doctrine.” Id. at

457.

       Pinkney’s case also does not “present a compelling demand” for application

of the fundamental error doctrine. Smith, 521 So. 2d at 108. As noted earlier, he

testified at his trial that the shooting was accidental and occurred as he was

fighting for his life. The trial court instructed the jury that, in certain

circumstances, the “killing of a human being is excusable, and therefore, lawful” if

it is “committed by accident.” And, of course, it also instructed the jury on self-

defense and the forcible felony exception to that defense. So even if we agreed

with Pinkney’s contention that his accidental shooting theory did not contradict his

self-defense theory, it is apparent that self-defense was not his only defense.

       Not only that, but the evidence that Pinkney shot in self-defense was

tenuous. His own testimony undermined that defense. For example, although

Pinkney stated that the shooting occurred as he was fighting for his life, he also



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testified that he never had complete control of the gun and never even had his

finger on the trigger. Instead, he testified that Williams’ finger was on the trigger.

That evidence may support Pinkney’s claim that the shooting was accidental, but it

weakens his claim that it was in self-defense.

      Other evidence at the trial contradicted Pinkney’s testimony and weakened

his assertion of self-defense. Jones and Woolfork both testified that Pinkney

entered the apartment pointing a gun. The evidence also showed that the bullet

that killed Williams entered the top of Williams’ head and went straight down to

the base of his skull. That objective evidence contradicts Pinkney’s testimony that

both he and Williams had a hand on the gun when he shot Williams. The evidence

of the bullet’s path also supports Woolfork’s testimony that Pinkney was “standing

over [Williams]” and had the gun “aiming down at his head.”

      The bullet retrieved from Williams’ head was from a .38 caliber revolver,

not from a .22 caliber semiautomatic pistol like the one Williams was carrying.

That is consistent with the detective’s testimony that there were no shell casings

found at the scene because, as noted earlier, revolvers do not eject shell casings,

while semiautomatic pistols do. See supra note 1. Pinkney also acknowledged that

he had no bruises or cuts on his hands from fighting Williams, and the medical

examiner testified that the autopsy report showed that Williams had no bruises or

cuts on his hands. The upshot is that the evidence in the record undermines



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Pinkney’s assertion of self-defense, as well as his testimony that he was not armed

when he went to Jones’ apartment.

      It is true that in Zuniga the Florida Second District Court of Appeal found

that a trial court’s erroneous forcible felony instruction amounted to fundamental

error, see Zuniga, 869 So. 2d at 1240, but that case is distinguishable from this

case. In Zuniga the defendant was charged with aggravated battery with a deadly

weapon. Id. at 1239. In instructing the jury on self-defense, the trial court stated

that: “[T]he use of force likely to cause death or great bodily harm is not

justifiable if you find [that the] defendant was attempting to commit, or committing

or escaping after the commission of an aggravated battery. . . .” Id. (alteration in

original and emphasis omitted). After concluding that that instruction was

erroneous, the appellate court considered whether it was fundamental error. Id. at

1240. It explained that the “only disputed issue at trial was whether [the

defendant] acted in self-defense,” and that the “self-defense instruction can be

likened to an element of the offense for its importance to the defendant.” Id.

(emphasis added). The court concluded that the error was fundamental. Id.

      Unlike the Zuniga case, in this case self-defense was not the only disputed

issue. Of course, it was disputed whether Pinkney acted in self-defense in shooting

Williams, but it was also disputed whether Pinkney shot Williams in the head

intentionally or accidentally. And it was disputed whether Pinkney was armed



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when he entered Jones’ apartment and shot Williams. While the Zuniga decision

was one of those “rare cases . . . where the interests of justice present[ed] a

compelling demand” for application of the fundamental error doctrine, Smith, 521

So. 2d at 108, the evidence in that case was materially different from the evidence

in this one. And because the fundamental error analysis turns on the evidence in

the record, see Baker, 877 So. 2d at 858, the Zuniga decision does not establish

that the Florida Second District Court of Appeal could not have reasonably

concluded that fundamental error did not occur in this case.

      Considering all of the evidence presented at trial, we are convinced that the

error in the forcible felony jury instruction did not “reach[ ] down into the validity

of the trial itself to the extent that [the] verdict of guilty could not have been

obtained without the assistance of the alleged error.” Kilgore, 688 So. 2d at 898

(quotation marks omitted). This is not one of those “rare cases where a

jurisdictional error appears or where the interests of justice present a compelling

demand for [the] application” of the fundamental error doctrine. Smith, 521 So. 2d

at 108. So even if the state law issue were ours to decide, we would decide it

consistently with the result in the Second District Court of Appeal decision. That

court, we are convinced, rejected Pinkney’s ineffective assistance of appellate

counsel claim because the error was not fundamental error and, for that reason,




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would not have gotten Pinkney any relief on direct appeal if his counsel had raised

it. It follows that it wasn’t ineffective assistance of counsel not to raise the issue.

      AFFIRMED.




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