           Case: 11-15753   Date Filed: 05/19/2014   Page: 1 of 8




                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 11-15753
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 8:11-cv-01721-JDW-MAP



JOSE ANTONIO HEREDIA,

                                                          Petitioner-Appellant,

versus

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

                                                       Respondents-Appellees.

                      ________________________

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

                             (May 19, 2014)

Before HULL, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jose Heredia, a Florida state prisoner proceeding pro se, appeals the district

court’s denial of his petition for writ of habeas corpus, filed pursuant to 28 U.S.C.

§ 2254, which challenged the validity of his Florida state court conviction and his

sentence for aggravated battery. On appeal, Heredia argues that the Florida

court’s adjudication of his claim of ineffective assistance of counsel was

unreasonable because his trial counsel was constitutionally deficient for failing to

request a jury instruction on self-defense where his testimony supported a self-

defense theory. He further asserts that he had a constitutional right to be served

with the exhibits to the State’s response to his petition, and the district court

violated his Due Process rights by ruling on the petition without requiring the State

to serve him with those exhibits.

      Upon careful review of the record and consideration of the parties’ briefs,

we affirm.

                                               I.


      We review a district court’s denial of a habeas petition under 28 U.S.C.

§ 2254 de novo and its factual findings for clear error. Sims v. Singletary, 155 F.3d

1297, 1304 (11th Cir. 1998). A habeas petition based on ineffective assistance of

counsel presents a mixed question of law and fact that we review de novo. Id.

      A person in custody pursuant to the judgment of a state court shall not be

granted habeas relief unless the state court’s decision on the merits was

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(1) “contrary to, or involved an unreasonable application of, clearly established

Federal law as determined by the Supreme Court of the United States; or

(2) . . . 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). When a

state court’s application of governing federal law is challenged, the decision “must

be shown to be not only erroneous, but objectively unreasonable.” Yarborough v.

Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003). The standard of

review is “doubly deferential” when a Strickland claim is evaluated under the

§ 2254(d)(1) standard. Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411,

1420, 173 L.Ed.2d 251 (2009). “The question is not whether a federal court

believes the state court’s determination under the Strickland standard was incorrect

but whether that determination was unreasonable—a substantially higher

threshold.” Id. (quotation omitted). A state court’s factual determinations are

presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1).

      In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984), the Supreme Court set out a two-part inquiry for ineffective assistance of

counsel claims:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious
      that counsel was not functioning as the “counsel” guaranteed the
      defendant by the Sixth Amendment. Second, the defendant must
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      show that the deficient performance prejudiced the defense. This
      requires showing that counsel’s errors were so serious as to deprive
      the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S.Ct. at 2064. A habeas petitioner claiming ineffective

assistance of counsel must succeed on both prongs of the Strickland test. Johnson

v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001).

      “To establish deficient performance, a defendant must show that his

counsel’s representation fell below an objective standard of reasonableness in light

of prevailing professional norms at the time the representation took place.”

Cummings v. Sec’y, Dep’t of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009)

(quotation omitted). “In judging the reasonableness of counsel’s performance, the

issue is not what is possible or what is prudent or appropriate, but only what is

constitutionally compelled [, and performance must fall] . . . . outside the wide

range of professionally competent assistance” to be considered deficient. Id.

(quotation omitted). “Courts indulge a strong presumption that counsel’s

performance was reasonable and that counsel made all significant decisions in the

exercise of reasonable professional judgment.” Id. (quotation omitted). Strategic

or tactical decisions, made after a thorough investigation of the law and facts, “are

virtually unchallengeable” in an ineffective assistance claim. Strickland, 466 U.S.

at 690, 104 S.Ct. at 2066. Moreover, when a state court makes a factual finding

that counsel strategically decided not to pursue a certain defense, that finding is


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entitled to a presumption of correctness under § 2254(e)(1). Fotopoulos v. Sec’y

Dep’t of Corr., 516 F.3d 1229, 1233 (11th Cir. 2008).

      Prejudice 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. A reasonable probability is one sufficient to

undermine confidence in the outcome. Id. It is not enough for the defendant to

show that the error had some conceivable effect on the outcome of the proceeding.

Id. at 693, 104 S.Ct. at 2067. Rather, he must show that the result would have been

different. See id.

      Under Florida law, the offense of simple battery occurs when a person

“actually and intentionally touches or strikes another person against the will of the

other.” Fla. Stat. § 784.03(1)(a)1. (emphasis added). Thus, a defendant can avoid

a battery conviction by proving that his injury of another was accidental. See

Williams v. State, 588 So.2d 44, 45 (Fla. Dist. Ct. App. 1991). As a general matter,

an assertion of accidental injury will preclude an instruction on self-defense, since

self-defense claims require the defendant to admit to the charged conduct. Id.

However, at least two Florida appellate courts have held that where a defendant’s

assertions of accidental injury and self-defense “are so intertwined that the jury

could reasonably find that the accident resulted from the justifiable use of force,” a

self-defense instruction should be given. Id; accord Mills v. State, 490 So.2d 204,


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205 (Fla. Dist. Ct. App. 1986). In order to elevate a simple battery to an

aggravated battery, the prosecution must prove an additional element, such as the

use of a deadly weapon. See Fla. Stat. § 784.045(1)(a)(2).

      Here, the district court correctly found that the state court’s decision was not

unreasonable. The record supports the state court’s factual finding that counsel

strategically decided to forego a self-defense claim, because, based on Heredia’s

account of the altercation, counsel could have reasonably concluded that the best

chance to defeat the aggravated-battery charge was to focus on proving that

Heredia did not intentionally strike the victim. Thus, even if counsel could have

theoretically pursued both defenses, he was not constitutionally deficient for

declining to do so. See Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.

      Furthermore, even if Heredia had shown a constitutional deficiency, he

failed to satisfy Strickland’s prejudice prong. See Johnson, 256 F.3d 1176.

Heredia’s trial turned on an evaluation of two conflicting versions of the

altercation. Thus, by finding Heredia guilty of aggravated battery, the jury

implicitly credited the victim’s testimony over Heredia’s. Because the jury

disbelieved Heredia’s testimony, the outcome at trial would not have been any

different if counsel had requested a self-defense instruction. Strickland, 466 U.S.

at 694, 104 S.Ct. at 2068.

                                              II.


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      We review constitutional claims de novo. United States v. Nash, 438 F.3d

1302, 1304 (11th Cir. 2006). The Fifth Amendment provides that “[n]o person

shall be . . . deprived of life, liberty, or property, without due process of law.” U.S.

Const. Amend. V. The essence of due process is an opportunity to be heard at a

meaningful time and in a meaningful way. Reams v. Irvin, 561 F.3d 1258, 1263

(11th Cir. 2009).

      Congress has addressed circumstances under which the clerk may provide

copies of documents from the record to a petitioner without cost in a federal habeas

proceeding:

      If on any application for writ of habeas corpus an order has been made
      permitting the petitioner to prosecute the application in forma
      pauperis, the clerk of any court of the United States shall furnish to
      the petitioner without cost certified copies of such documents or parts
      of the record on file in his office as may be required by order of the
      judge before whom the application is pending.

28 U.S.C. § 2250.

      Here, the district court’s refusal to compel the State to serve the exhibits on

Heredia before ruling on his petition did not deny him due process of law. Heredia

was given a copy of the State’s answer and had notice that the exhibits had been

filed, and was therefore aware of the exhibits that the State was relying on in

opposing his § 2254 petition. Further, a review of the record indicates that Heredia

had access to the trial transcript, as he cited specific page numbers in his § 2254

petition. He would have been sufficiently familiar with the other proceedings to
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object if there were any material misrepresentations by the State or the district

court. Therefore, Heredia was not prejudiced by the lack of service. See Reams,

561 F.3d at 1263. Furthermore, Heredia could have obtained free copies of the

State’s exhibits by applying to proceed in forma pauperis. See 28 U.S.C. § 2250.

Accordingly, the State was not constitutionally required to serve Heredia with the

exhibits to its answer. 1

       AFFIRMED.




1
       We note that this Court recently held, in Rodriguez v. Florida, __ F.3d __ (11th Cir. April
14, 2014), that the state’s failure to provide the referenced appendix documents violated the
Federal Rules of Civil Procedure and the Rules Governing Section 2254 Cases. However,
Heredia failed to raise that argument; he has raised only a constitutional right under the Due
Process clause.
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