                                                                           [PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT                      FILED
                               ________________________           U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                        June 19, 2012
                                       No. 10-14966                      JOHN LEY
                                 ________________________                  CLERK

                             D.C. Docket No. 1:08-cv-00143-RS



STEPHEN BOOKER,

llllllllllllllllllllllllllllllllllllllllPetitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

llllllllllllllllllllllllllllllllllllllllRespondent - Appellee.

                                 ________________________

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

                                          (June 19, 2012)

Before DUBINA, Chief Judge, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

         Stephen Booker, a prisoner on Florida’s death row, appeals the district
court’s denial of his 28 U.S.C. § 2254 petition challenging his capital murder

conviction. We issued a Certificate of Appealability on one issue: Whether the

Florida Supreme Court’s decision denying Booker’s claim that the trial court erred

when refusing to instruct the jury about other consecutive sentences was contrary

to, or involved an unreasonable application of, the Supreme Court’s decision in

Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187 (1994). Booker bases

his claim on the trial court’s refusal to inform the advisory jury of his multiple

terms of incarceration that he would have to serve before becoming eligible for

parole.1 Finding the state court’s ruling to be neither contrary to nor an

unreasonable application of Simmons and its progeny, we affirm the district court.

                                                 I

       In December of 1977, the State of Florida charged Booker with first-degree

murder, sexual battery, and burglary related to the death of Lorine Demoss

Harmon. On direct appeal, the Florida Supreme Court summarized the facts of the

crime as follows:

             The victim, an elderly woman, was found dead in her apartment
       in Gainesville, Florida. The cause of death was loss of blood due to


       1
         The State questions whether Booker would have to satisfy his other terms of
imprisonment as a prerequisite to parole eligibility. We assume for purposes of this appeal that
Booker correctly states the issue of parole eligibility because, even construing this issue in his
favor, habeas relief is not warranted.

                                                 2
      several knife wounds in the chest area. Two knives, apparently used
      in the homicide, were embedded in the body of the victim. A
      pathologist located semen and blood in the vaginal area of the victim
      and concluded that sexual intercourse had occurred prior to death.
      The apartment was found to be in a state of disarray; drawers were
      pulled out and their contents strewn about the apartment.
      Fingerprints of the defendant were positively identified as being
      consistent with latent fingerprints lifted from the scene of the
      homicide. The defendant had a pair of boots which had a print
      pattern similar to those seen by an officer at the scene of the
      homicide.

            Test results indicated that body hairs found on the clothing of
      the defendant at the time of his arrest were consistent with hairs taken
      from the body of the victim.

            After being given the appropriate warnings, the defendant
      made a statement, speaking as an alternative personality named
      “Aniel.” The “Aniel” character made a statement that “Steve had
      done it.”

Booker v. State, 397 So. 2d 910, 912 (Fla. 1981). The jury found Booker guilty on

all three counts. Id. The jury recommended that Booker be sentenced to death,

and the trial judge imposed that sentence. Id. at 913.

      The Florida Supreme Court affirmed Booker’s convictions and sentences on

direct appeal, see id. at 918, and denied postconviction relief, Booker v. Dugger,

520 So. 2d 246, 249 (Fla. 1988) (per curiam). On habeas review, however, the

federal district court found that prejudicial constitutional error required that his

death sentence be vacated, and this court agreed. Booker v. Dugger, 922 F.2d 633,



                                           3
633–34 (11th. Cir. 1991). On remand, the state court held a new penalty phase

hearing in March of 1998. See Booker v. State, 773 So. 2d 1079, 1083 (Fla. 2000)

(per curiam). At the time of his resentencing, Booker was serving a consecutive

term of imprisonment of one-hundred years for the other crimes involving the

death of the victim as well as the assault of a corrections officer committed while

in prison. Applying Florida law as enacted at the time of Booker’s conviction, the

jury could recommend either the death penalty or life with the possibility of parole

after serving twenty-five years.

      After hearing from both sides, the jury began to confer about Booker’s

sentence. Soon after they began to deliberate, the jury sent a question to the

sentencing court asking: “Will time already served be considered as gain time in a

life sentence without possibility of parole for 25 years?” The trial court answered:

“You must not consider issues not presented to you for your consideration in these

proceedings. You must base your advisory recommendation on the evidence

presented to you in this proceeding and on the law on which you have been

instructed.” By a vote of eight to four, the jury again recommended that Booker

be sentenced to death, and the trial judge followed that recommendation. Id. at

1086. The Florida Supreme Court affirmed Booker’s sentence on direct appeal.




                                          4
Id. at 1096.2

       In July of 2008, Booker filed the instant § 2254 petition in federal district

court. The district court denied relief, and we granted a Certificate of

Appealability on the Simmons issue, which the Florida Supreme Court denied on

the merits on direct appeal.

                                               II

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.

L. No. 104-132, 110 Stat. 1218, prohibits federal courts from granting habeas

relief unless the state court’s adjudication of the claim for relief “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.” 28 U.S.C. § 2254(d)(1). “‘[C]learly established Federal law’ under

§ 2254(d)(1) is the governing legal principle or principles set forth by the Supreme

Court at the time the state court renders its decision.” Lockyer v. Andrade, 538

U.S. 63, 71–72, 123 S. Ct. 1166, 1172 (2003). A state court adjudication is

“contrary to” federal law in two situations: “(1) ‘if the state court applies a rule

that contradicts the governing law set forth in [Supreme Court] cases,’ or (2) ‘if


       2
         Booker also timely filed a motion to vacate his sentence pursuant to Florida Rule of
Criminal Procedure 3.851. Relief was ultimately denied on all claims, Booker v. State, 969 So.
2d 186, 200–01 (Fla. 2007) (per curiam), and none of those issues is relevant to this appeal.

                                               5
the state court confronts a set of facts that are materially indistinguishable from a

decision of [the Supreme] Court and nevertheless arrives at a result different from

[the Supreme Court’s] precedent.’” Guzman v. Sec’y, Dep’t of Corr., 663 F.3d

1336, 1346 (11th Cir. 2011) (alterations in original) (quoting Williams v. Taylor,

529 U.S. 362, 405–06, 120 S. Ct. 1495, 1519–20 (2000)). An unreasonable

application of clearly established federal law permits habeas relief where “the state

court identifies the correct governing legal principle from [the Supreme Court’s]

decisions but unreasonably applies that principle to the facts of the prisoner’s

case.” Williams, 529 U.S. at 412–13, 120 S. Ct. at 1523. The Supreme Court

recently clarified that relief under AEDPA’s “unreasonable application” prong is

not warranted “so long as ‘fairminded jurists could disagree’ on the correctness of

the state court’s decision.” Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770,

785–86 (2011).

                                          III

      Booker argues that the state court violated his due process rights when it

refused to instruct the jury regarding his other consecutive sentences, which he

claims functionally barred him from ever being paroled because those sentences

would have to be served prior to his release. The Florida Supreme Court

adjudicated his claim on the merits and explained:

                                           6
       In Nixon v. State, 572 So. 2d 1336, 1345 (Fla. 1990), we held
that a capital murder defendant, who had been convicted of three
additional noncapital offenses carrying lengthy maximum penalties,
was not entitled to an instruction informing the jury of the maximum
sentences that could be imposed for the other crimes. See also
Franqui v. State, 699 So. 2d 1312, 1326 (Fla. 1997) (following
Nixon); Marquard v. State, 641 So. 2d 54, 57–58 (Fla. 1994) (same);
Gorby v. State, 630 So. 2d 544, 548 (Fla. 1993) (stating that,
according to Nixon, “during the penalty phase, there is no need to
instruct the jury on the penalties for noncapital crimes a defendant has
been convicted of”). Booker argues that Nixon is not controlling here
because, unlike the defendant in that case, Booker has already been
sentenced for the crimes other than the first-degree murder
conviction. In making this argument, however, Booker overlooks
several of our prior decisions applying Nixon to facts substantively
identical to those in this case.

        In Campbell v. State, 679 So. 2d 720, 722 (Fla. 1996), the
defendant directly appealed a death sentence imposed on him after a
resentencing hearing. After finding that the prosecutor had
committed various acts of misconduct during the hearing, we reversed
the defendant’s sentence and again remanded for resentencing. See
id. at 724–25. Before doing so, however, we addressed “several
additional claims to aid in resentencing.” Id. at 725. Particularly
relevant to this case, we stated:

      At the time of resentencing, Campbell had already been
      sentenced to consecutive life terms for other related
      crimes and now claims that the court erred in preventing
      him from pointing this out to prospective jurors and in
      declining to instruct the jury on this. This issue has
      already been decided adversely to Campbell. See, e.g.,
      Nixon v. State, 572 So. 2d 1336 (Fla. 1990), cert. denied,
      502 U.S. 854, 112 S. Ct. 164 (1991). We find no error.

679 So. 2d at 725. Thus, in Campbell, we clearly determined that
Nixon is controlling in cases such as this.

                                   7
              More recently, in Bates v. State, 750 So. 2d 6 (Fla. 1999), we
       again applied our holding in Nixon to facts substantively identical to
       those presented here. In Bates, the defendant appealed from a death
       sentence imposed on resentencing for a murder that occurred in 1982.
       See id. at 8. Relevant to this case, we stated the following in rejecting
       Bates’ claim that the jury should have been informed of his
       previously imposed sentences:

              [A]ppellant contends that the fact that he was already
              sentenced to two life terms plus fifteen years and that
              those sentences were to run consecutively to the sentence
              for the murder was relevant mitigation “in the sense that
              [it] might serve as a basis for a sentence less than death.”
              We have rejected similar arguments in Franqui v. State,
              699 So. 2d 1312, 1326 (Fla. 1997); Marquard v. State,
              641 So. 2d 54 (Fla. 1994); and Nixon v. State, 572 So. 2d
              1336 (Fla. 1990).

              These other sentences are not relevant mitigation on the
              issue of whether appellant will actually remain in prison
              for the length of those sentences. The length of actual
              prison time is affected by many factors other than the
              length of the sentence imposed by the sentencing court.
              The introduction of this evidence would open the door to
              conjecture and speculation as to how much time a
              prisoner serves of a sentence and distract jurors from the
              relevant issue of what is the appropriate sentence for the
              murder conviction.

       Bates, 750 So. 2d at 11. Accordingly, based on our prior decisions,
       we reject Booker’s claim here on the merits.

Booker, 773 So. 2d at 1087–88.3


       3
         Although the state court did not refer to any Supreme Court precedent in disposing of
Booker’s claim, AEDPA deference is not conditioned on the state court’s citation of federal
authority. See Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002) (per curiam).

                                                8
       In Simmons v. South Carolina, the Supreme Court held that, when future

dangerousness is an issue at sentencing and the defendant would be ineligible for

parole under a life sentence, due process requires that a jury be informed of the

defendant’s parole ineligibility. 512 U.S. at 168–69, 114 S. Ct. at 2196 (plurality

opinion); id. at 177–78, 114 S. Ct. at 2201 (O’Connor, J., concurring). At the

same time, the Court explained that nothing in the Constitution prevented the State

from informing the jury about parole eligibility if the defendant is eligible under

state law. Id. at 168, 114 S. Ct. at 2196 (plurality opinion); id. at 176, 114 S. Ct. at

2200 (O’Connor, J., concurring).

       In 2000, the Court clarified that Simmons did not endorse a functional

approach to instruction on parole ineligibility. In Ramdass v. Angelone, the Court

ruled that due process did not require the jury to be informed that the defendant

would have been ineligible for parole under the state’s “three strikes” law.4 530

U.S. 156, 159, 120 S. Ct. 2113, 2116 (2000) (plurality opinion) (“Simmons is

inapplicable to petitioner since he was not parole ineligible when the jury

considered his case . . . .”); id. at 180, 120 S. Ct. at 2127 (O’Connor, J.,



       4
         At the time of his capital sentencing, Ramdass had been found guilty but not yet
sentenced for the crime that would be the “third strike” to render him parole ineligible. Ramdass,
530 U.S. at 160–61, 120 S. Ct. at 2117. Under state law, that conviction was not final until the
sentencing had been imposed. Id. at 160, 120 S. Ct. at 2117.

                                                9
concurring) (“Ramdass . . . was not ineligible for parole when the jury considered

his sentence . . . .”). Because life with parole was still technically a legal

possibility at the time of Ramdass’s capital sentencing proceeding, the Court

found that Simmons did not control. See id. at 181, 120 S. Ct. at 2128 (O’Connor,

J., concurring) (“Simmons entitles the defendant to inform the capital sentencing

jury that he is parole ineligible where the only alternative sentence to death is life

without the possibility of parole. And unlike [Simmons], Ramdass was eligible

for parole under state law at the time of his sentencing.”).

       The Supreme Court has since extended and clarified Simmons in two cases.5

In Shafer v. South Carolina, the Court faced a situation where South Carolina

changed its death penalty statute in the wake of Simmons to preclude parole

eligibility for capital offenses. 532 U.S. 36, 46 n.3, 121 S. Ct. 1263, 1270 (2001).

The Court reaffirmed Simmons and held that “whenever future dangerousness is at

issue in a capital sentencing proceeding under South Carolina’s new scheme, due

process requires that the jury be informed that a life sentence carries no possibility

of parole.” Id. at 51, 121 S. Ct. at 1273. Next, Kelly v. South Carolina extended

the rule of parole ineligibility to sentencing proceedings in which future


       5
         Although neither case was decided at the time of the Florida Supreme Court’s decision,
they clarify that Simmons has never been interpreted to carry the weight that Booker attributes to
it.

                                                10
dangerousness is implied. 534 U.S. 246, 255–57, 122 S. Ct. 726, 732–33 (2002).

      We do not read Simmons or its progeny to clearly establish that Booker was

entitled to the instruction he sought in this case. Moreover, the Supreme Court’s

Ramdass decision compels the conclusion that the Florida Supreme Court’s

adjudication of this claim was neither contrary to nor an unreasonable application

of clearly established federal law. Simmons does not control where the defendant

is statutorily eligible for release on parole. See Ramdass, 530 U.S. at 181, 120 S.

Ct. at 2128 (O’Connor, J., concurring). Moreover, Ramdass rejected the

functional approach to parole ineligibility that Booker urges us to adopt here. See

Campbell v. Polk, 447 F.3d 270, 288–89 (4th Cir. 2006) (detailing the practical

problems associated with a functional analysis of parole eligibility and declining

to adopt that approach); see also Cantu v. Quarterman, 341 F. App’x 55, 59 (5th

Cir. 2009) (per curiam) (denying a Certificate of Appealability on petitioner’s

claim that the trial court erred in refusing to inform the jury that petitioner would

not be eligible for parole for thirty-five years if sentenced to life imprisonment).

Even if the state court’s resolution of this claim “clearly violates the spirit of . . .

Simmons,” Booker, 773 So. 2d at 1097 (Anstead, J., dissenting in part) (emphasis

added), that does not mean that it constitutes an unreasonable application of

clearly established federal law, which thus far has only addressed jury instructions

                                            11
in the circumstance of statutory parole ineligibility.

      At oral argument, Booker relied more heavily on Gardner v. Florida, 430

U.S. 349, 97 S. Ct. 1197 (1977), and Skipper v. South Carolina, 476 U.S. 1, 106 S.

Ct. 1669 (1986). In Gardner, the Court considered the constitutionality of “a

capital-sentencing procedure which permits a trial judge to impose the death

sentence on the basis of confidential information which is not disclosed to the

defendant or his counsel.” 430 U.S. at 358, 97 S. Ct. at 1205 (plurality opinion).

In four separate opinions, the Court ruled that a death sentence imposed under

those circumstances was unconstituitonal. Id. at 351, 97 S. Ct. at 1200 (finding a

due process violation); id. at 364, 97 S. Ct. at 1208 (White, J.) (finding an Eighth

Amendment violation); id. (Blackmun, J.) (concurring based on precedent); id.

(Brennan, J.) (finding a due process violation). In Skipper, the Court addressed

whether the defendant was entitled to present the jury with mitigating evidence

about his good behavior while in prison to illustrate his temperament and

adaptability to prison life. 476 U.S. at 4, 106 S. Ct. at 1671. The Court held that

such evidence could not be excluded from the jury’s consideration. Id. at 8–9, 106

S. Ct. at 1673. It is evident that neither Gardner nor Skipper presented an issue

comparable to instructing on parole eligibility. As a result, they do not clearly

establish law with respect to the necessity of an instruction to inform the jury of

                                          12
the length of a defendant’s likely term of imprisonment.

      In sum, Booker cannot prevail on his claim for relief. None of the Supreme

Court precedent upon which he relies illustrates that the Florida Supreme Court

rendered a decision that was contrary to, or an unreasonable application, clearly

established law under 28 U.S.C. § 2254(d).

      AFFIRMED.




                                         13
