                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-14024            ELEVENTH CIRCUIT
                                        Non-Argument Calendar          AUGUST 17, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                                D.C. Docket No. 1:09-cv-22220-MGC

SHAUN FREDERICK,

llllllllllllllllllllllllllllllllllllllll                            Petitioner-Appellant,

                                                versus

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

llllllllllllllllllllllllllllllllllllllll                         Respondents-Appellees.


                                     ________________________

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

                                           (August 17, 2011)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Petitioner was convicted in a Florida state court of burglary of an

unoccupied structure, two counts of kidnaping with a weapon, robbery with a

weapon, and resisting an officer without violence. After exhausting his state

remedies, he petitioned the district court for a writ of habeas corpus, 28 U.S.C. §

2254. The court denied relief, and he appeals its decision.

      The district court issued a certificate of appealability on three issues:

      1. Whether petitioner was denied effective assistance of counsel, where his
      lawyer failed to object and/or file a motion to dismiss the Amended
      Information.

      2. Whether petitioner was denied effective assistance of counsel, where his
      lawyer failed to object to and/or otherwise preserve as error the court’s
      confusing and otherwise misleading instructions to the jury.

      3. Whether petitioner was denied effective assistance of counsel, where his
      lawyer failed to discover that one of the petitioner’s prior convictions did
      not qualify as a predicate offense for purposes of his habitual felony
      offender enhancement.

      In his brief on appeal, petitioner failed to brief the third issue. We therefore

treat it as abandoned, Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008), and

turn to the first two issues.

      We review a district court’s denial of § 2254 habeas relief de novo. Gamble

v. Sec’y, Fla. Dep’t of Corr., 450 F.3d 1245, 1247 (11th Cir. 2006). A federal

court may grant a writ of habeas corpus only if the decision of the state court



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adjudicating the petitioner’s claim (1) “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court,” or (2) “was based on an unreasonable determination of the facts

in light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2).

        A state court’s decision is “contrary to” federal law if “the state court arrives

at a conclusion opposite to that reached by [the Supreme Court] on a question of

law or if the state court decides a case differently than th[e] Court has on a set of

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120

S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). A state court’s decision involves “an

unreasonable application” of federal law if “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.” Id. at 413, 120 S.Ct. at

1523.

        To prevail on a claim of ineffective assistance of counsel, the petitioner

must demonstrate both (1) that his counsel’s performance was deficient, i.e., the

performance fell below an objective standard of reasonableness, and (2) that he

suffered prejudice as a result of that deficient performance. Strickland v.

Washington, 466 U.S. 668, 687-88, 104 S.Ct 2052, 2064-65, 80 L.Ed.2d 674

                                            3
(1984). In determining whether counsel gave adequate assistance, “counsel is

strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id. at 690, 104

S.Ct. at 2066. Counsel’s performance is deficient only if it falls below the wide

range of competence demanded of attorneys in criminal cases. Id. at 688-89,

104 S.Ct. at 2065. To make such a showing, the petitioner must demonstrate that

“no competent counsel would have taken the action that his counsel did take.”

United States v. Freixas, 332 F.3d 1314, 1319-20 (11th Cir. 2003) (quotation

omitted). A lawyer cannot be deficient for failing to raise a meritless claim.

Freeman v. Atty. Gen. 536 F.3d 1225, 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. A reasonable probability is probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694,

104 S.Ct. at 2068.

      In a § 2254 proceeding, the petitioner must do more than satisfy the

Strickland standard; the petitioner must also show that the state court applied

Strickland in an objectively unreasonable manner. Rutherford v. Crosby, 385 F.3d

1300, 1309 (11th Cir. 2004); Knowles v. Mirzayance, 556 U.S. __, __, 129 S.Ct.

1411, 1420, 173 L.Ed.2d 251 (2009) (noting that the standard of review is “doubly

                                          4
deferential” when “a Strickland claim [is] evaluated under the § 2254(d)(1)

standard”). With these principles in hand, we consider the two issues before us.

                                         I.

      Under Florida law, an information may be substantively amended during

trial, even over the objection of the defense, in the absence of a showing of

prejudice to the substantial rights of the accused. See State v. Anderson, 537

So.2d 1373, 1375-76 (Fla. 1989).

      Florida criminal law provides the following as to the crime of burglary:

      [(1)](b) For offenses committed after July 1, 2001, “burglary” means:
      1. Entering a dwelling, a structure, or a conveyance with the intent to
      commit an offense therein, unless the premises are at the time open to
      the public or the defendant is licensed or invited to enter;
      ...
      (2) Burglary is a felony of the first degree, punishable by
      imprisonment for a term of years not exceeding life
      imprisonment . . . if, in the course of committing the offense, the offender:
      ...
      (b) Is or becomes armed within the dwelling, structure, or
      conveyance, with explosives or a dangerous weapon;
      ...
      (3) Burglary is a felony of the second degree . . . if, in the course of
      committing the offense, the offender does not make an assault or
      battery and is not and does not become armed with a dangerous
      weapon or explosive, and the offender enters or remains in a:
      ...
      (c) Structure, and there is another person in the structure at the time
      the offender enters or remains;
      ...



                                          5
Fla. Stat. § 810.02 (2007). As to lesser included offenses, Fla. R. Crim. P. 3.490

provides: “[i]f the indictment or information charges an offense divided into

degrees, the jury may find the defendant guilty of the offense charged or any lesser

degree supported by the evidence. The judge shall not instruct on any degree as to

which there is no evidence.”

      The Florida Standard Jury Instructions for criminal cases appear on the

Florida Supreme Court’s website. The burglary instruction specifically provides

that burglary of an occupied structure, in violation of Fla. Stat. § 810.02(3)(c), is a

lesser included offense of armed burglary, in violation of Fla. Stat. § 810.02(2)(b).

http://www.floridasupremecourt.org/jury_instructions/instructions

.shtml#, Chapter 13.1 at 4-5.

      The state court reasonably determined, pursuant to Strickland, that

petitioner’s lawyer rendered effective assistance even though counsel failed to

object or move to dismiss the amended information. Here, counsel did not object

to the amended information because the lawful amendment decreased the severity

of the charged offense, which benefitted the defendant. Moreover, because

burglary of an occupied structure is a lesser included offense of armed burglary

under Florida law, the court likely would have instructed the jury as to the lesser

offense even without the amendment. Fla. R. Crim. P. 3.490. Thus, counsel’s

                                           6
performance in failing to object did not fall below the wide range of competence

demanded of attorneys in criminal cases. Strickland, 466 U.S. at 688, 104 S.Ct. at

2065. Furthermore, petitioner has failed to establish that the outcome of the

proceedings would have been different had his counsel objected to the amended

information, and thus, he has failed to establish that he suffered any prejudice as a

result of counsel’s performance. Id. at 687, 104 S.Ct. at 2064.

                                          II.

      The state court reasonably determined, pursuant to Strickland, that

petitioner’s attorney rendered effective assistance even though counsel failed to

object to a jury instruction that, petitioner contends, was confusing or misleading.

Here, even though the court initially misstated that the defendant was charged

with armed burglary, the court read the standard burglary instruction and then

instructed the jury to determine whether the structure was occupied. The

instruction itself did not mention the word “armed” and it did not instruct the jury

to determine whether the defendant was guilty of armed burglary. Because the

trial court read the proper instruction and the initial misstatement was minor, the

district court did not err in finding that the state court reasonably applied

Strickland in determining that counsel’s performance was not deficient. Freeman

v. Atty. Gen. 536 F.3d 1225, 1233 (11th Cir. 2008). Moreover, because petitioner

                                           7
failed to establish that the court’s misstatement impacted the jury’s verdict, the

trial court reasonably applied Strickland in concluding that petitioner was not

prejudiced by his counsel’s failure to object to the jury instruction. Rutherford,

385 F.3d at 1309; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

      AFFIRMED.




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