                                                    [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                           MAY 11, 2007
                            No. 06-13067                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                D. C. Docket No. 04-02726-CV-T-23-MSS

DAVID M. REUTTER,

                                                         Petitioner-Appellant,

                                 versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,


                                                     Respondents-Appellees.

                      ________________________

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

                             (May 11, 2007)

Before ANDERSON, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Florida prisoner David M. Reutter appeals the district court’s denial of his

28 U.S.C. § 2254 habeas corpus petition. We issued a certificate of appealability

on the following issue: “[w]hether the district court erred in dismissing as

procedurally barred appellant’s ineffective-assistance-of-counsel claims.” We

conclude the district court erred in dismissing Reutter’s ineffective-assistance-of-

appellate-counsel claim, but conclude Florida’s Second District Court of Appeal’s

summary denial of this claim was not an unreasonable application of clearly

established law. Thus, we affirm.

                                   I. DISCUSSION

A. Procedural Bar

      Reutter asserts the district court erred by dismissing as procedurally barred

his ineffective-assistance-of-appellate-counsel claim. Reutter maintains the district

court erred in basing its finding of procedural default on the nature of the claim

underlying the ineffective-assistance-of-appellate-counsel claim, rather than the

ineffective-assistance claim itself.

      Before filing a federal habeas petition, a state prisoner must exhaust state

court remedies, either on direct appeal or in a state post-conviction motion. 28

U.S.C. § 2254(b), (c). Exhaustion presents a mixed question of law and fact,

subject to de novo review. Fox v. Kelso, 911 F.2d 563, 568 (11th Cir. 1990). To



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exhaust state remedies as to a federal constitutional issue, “state prisoners must

give the state courts one full opportunity to resolve any constitutional issues by

invoking one complete round of the State’s established appellate review process”

before filing a habeas petition. O’Sullivan v. Boerckel, 119 S. Ct. 1728, 1732

(1999). The issue of appellate counsel’s ineffectiveness, “even when based on the

failure of counsel to raise a state law claim–is one of constitutional dimension.”

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

      The State conceded both in the district court and on appeal that Reutter

exhausted his substantive federal claim of ineffective assistance of counsel based

on his appellate counsel’s failure to raise on direct appeal Reutter’s preserved

objection to the trial court’s “justifiable homicide” jury instruction that included a

“forcible felony” instruction. Moreover, the State conceded a claim of ineffective

assistance of appellate counsel is a federal constitutional claim.

      Both the district court and the State focused on the fact Reutter did not

present to the state courts a claim his appellate counsel was ineffective for failing

to argue federal constitutional error regarding the jury instruction itself. In other

words, they focused on the underlying jury instruction claim as a federal issue.

Even though Reutter’s ineffective-assistance-of-appellate-counsel claim was based

on counsel’s failure to raise a state-law issue, however, the ineffective-assistance



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claim itself was a federal constitutional claim. See Alvord, 725 F.2d at 1291.

Thus, the district court’s conclusion that Reutter’s claim was not exhausted

because he failed to argue the jury instruction was anything other than a state law

issue was incorrect in light of Alvord. Reutter’s substantive claim of

ineffectiveness based on counsel’s failure to challenge the jury instruction was a

federal constitutional claim. Accordingly, the district court erred in finding the

claim was not reviewable on the merits.

      Where the district court improperly finds a claim is procedurally barred, we

may review the merits of the claim in the first instance. See Peoples v. Campbell,

377 F.3d 1208, 1235-36 (11th Cir. 2004) (holding although the district court

improperly found the defendant’s ineffective-assistance-of-counsel claim was

procedurally barred, and, thus erred in failing to address that claim, we could reach

the merits of the claim in the first instance). Therefore, our analysis of the merits

of Reutter’s ineffective-assistance-of-appellate-counsel claim follows.

B. Merits of Ineffective-Assistance-of-Appellate-Counsel Claim

      Reutter asserts his appellate counsel was deficient for (1) not challenging the

jury instruction even though Reutter requested the issue be included in his direct

appeal; and (2) not focusing on opinions Reutter pointed out to counsel that

foreshadowed a 2002 decision from Florida’s Fourth District Court of Appeal



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supporting Reutter’s argument. Additionally, Reutter contends his appellate

counsel was deficient for failing to rely on the following cases in challenging the

jury instruction on appeal: Perkins v. State, 576 So. 2d 1310 (Fla. 1991); Marshall

v. State, 604 So. 2d 799 (Fla. 1992); and McGahee v. State, 600 So. 2d 9 (Fla. 3d

DCA 1992). Finally, Reutter maintains his case is comparable to Davis v. State,

886 So. 2d 332 (Fla. 5th DCA 2004) and Giles v. State, 831 So. 2d 1263 (Fla. 4th

DCA 2002).

      Under 28 U.S.C. § 2254(d), 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 [U.S.]

Supreme Court, . . . or resulted in a decision that 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)(1)-(2). A state court decision is “contrary to”

established law if (1) the state arrives at a conclusion opposite to that reached by

the Supreme Court on a question of law, or (2) a state court confronts facts

“materially indistinguishable” from relevant Supreme Court precedent, but reaches

an opposite result. Williams v. Taylor, 120 S. Ct. 1495, 1519 (2000). A state

appellate court’s rejection of a claim, without discussion, is an adjudication on the



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merits, and, thus, is entitled to the same deference under § 2254(d) as if the

appellate court had entered written findings. Wright v. Sec. for Dept. of Corr., 278

F.3d 1245, 1253-54 (11th Cir. 2002).

      An ineffective-assistance-of-appellate-counsel claim is considered under the

same two-part test announced in Strickland. Grubbs v. Singletary, 120 F.3d 1174,

1176 (11th Cir. 1997). In order to prove ineffective assistance of appellate

counsel, a defendant must show (1) counsel’s performance was constitutionally

deficient, and (2) he was prejudiced as a result. Strickland v. Washington, 104 S.

Ct. 2052, 2064 (1984). If the defendant makes an insufficient showing on one

component, the court need not address the other. Id. at 2069. Unless the petitioner

can rebut the “strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance,” he cannot show that counsel’s

performance was constitutionally deficient. Id. at 2065.

      Reutter cannot show his appellate counsel was deficient for several reasons.

First, although Reutter requested his appellate counsel include the jury instruction

issue in his appeal, the cases Reutter claims his appellate counsel should have

cited, namely, Perkins and Marshall, did not address the issue of whether the

“forcible felony” instruction is improper when the defendant is only charged with

one felony. See Perkins, 576 So. 2d at 1311-14; Marshall, 604 So. 2d at 802-03.



                                           6
Further, the majority opinion in McGahee found a similar jury instruction to the

one given in Reutter’s case was not prejudicial, and the court did not vacate

McGahee’s conviction. See McGahee, 600 So. 2d at 10.

      Second, appellate counsel’s failure to anticipate the Fourth District Court of

Appeal’s decision in Giles does not fall outside the wide range of professional

assistance because (1) “we have held many times that reasonably effective

representation cannot and does not include a requirement to make arguments based

on predictions of how the law may develop,” Spaziano v. Singletary, 36 F.3d

1028, 1039 (11th Cir. 1994) (quotations and alterations omitted); and (2) “[t]o be

effective within the bounds set by Strickland, an attorney need not anticipate

changes in the law,” Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir. 1995).

Additionally, decisions by the Fourth District Court of Appeal are not binding on

the Second District Court of Appeal.

      Third, even if the jury instruction issue had merit, appellate counsel’s failure

to raise the issue was not unreasonable under prevailing professional norms

because (1) “the Sixth Amendment does not require appellate advocates to raise

every non-frivolous issue,” and (2) “effective advocates ‘winnow out’ weaker

arguments even though the weaker arguments may be meritorious.” See Heath v.

Jones, 941 F.2d 1126, 1130-31 (11th Cir. 1991) (citing Jones v. Barnes, 103 S. Ct.


                                          7
3308, 3313 (1983)). Reutter’s counsel’s appellate advocacy must be judged in its

entirety. See id. at 1131. The record as a whole reveals appellate counsel raised

several important claims on direct appeal, including challenging the sufficiency of

the evidence as to premeditation and challenging the sufficiency of the

circumstantial evidence that the government offered to disprove Reutter’s self-

defense claim. Appellate counsel’s failure to include the jury instruction claim

may have been a strategic decision to “winnow out the weaker arguments,” given

the lack of law supporting Reutter’s jury instruction claim. See id. at 1130-31.

      Finally, Reutter’s reliance on Davis is misplaced because: (1) Davis was

decided after the Second District Court of Appeal denied Reutter’s habeas petition;

(2) Davis was decided by the Fifth District Court of Appeal, whose decisions are

not binding on the Second District Court of Appeal; (3) Davis did not apply the

Strickland test; and (4) as discussed above, the Second District Court of Appeal did

not misapply the federal law regarding ineffective-assistance-of-counsel claims. In

sum, the Second District Court of Appeal’s denial of Reutter’s habeas petition with

respect to this issue was not “contrary to” established law because the state arrived

at a conclusion consistent with Supreme Court precedent and our precedent.

Williams, 120 S. Ct. at 1519. We do not reach Strickland’s prejudice prong




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because Reutter’s appellate counsel’s performance was not deficient. Strickland,

104 S. Ct. at 2069.

                                 II. CONCLUSION

      The district court erred in finding Reutter’s ineffective-assistance-of-

appellate-counsel claim was procedurally barred. Reviewing the claim in the first

instance, we conclude the Second District Court of Appeal’s finding that Reutter’s

appellate counsel was not ineffective for failing to raise a challenge to the

justifiable homicide jury instruction was not an unreasonable application of clearly

established federal law regarding ineffective-assistance-of-counsel claims.

      AFFIRMED.




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