              Case: 12-14637    Date Filed: 10/30/2013   Page: 1 of 3


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-14637
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:11-cv-23134-KMM



IVAN FERNANDEZ,

                                                              Petitioner-Appellant,

                                      versus

FLORIDA DEPARTMENT OF CORRECTIONS,

                                                             Respondent-Appellee.

                          ________________________

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

                                (October 30, 2013)

Before DUBINA, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

      Ivan Fernandez appeals the denial of his petition for a writ of habeas corpus

that challenged his conviction in a Florida court of second degree murder. See 28
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U.S.C. § 2254. We granted a certificate of appealability to decide whether

Fernandez fairly presented to the district court a claim that his trial counsel was

ineffective for failing to investigate and argue that Fernandez acted in self-defense.

After a careful review of the record, we answer that question in the negative and

affirm.

      Fernandez failed to present in his petition the claim that trial counsel was

ineffective for failing to argue about self-defense. Fernandez was required to

present that claim in clear and simple language so that it could be easily identified

and understood by the district court. See Smith v. Sec’y, Dep’t of Corr., 572 F.3d

1327, 1352 (11th Cir. 2009). Fernandez alleged in his petition that the “trial court

committed fundamental error by instructing the jury on the forcible felony

exception to self-defense” and that “trial counsel did not present[] a complete

defense,” but the district court understandably interpreted Fernandez’s allegations

as presenting a claim that trial counsel had been ineffective for failing to object to

the jury instruction. Fernandez “adopt[ed] . . . [and] incorporated by reference” his

brief on direct appeal in the state courts, which addressed only the alleged error of

the trial court in giving the instruction. Fernandez incorporated by reference into

his federal petition all the claims of ineffective assistance that he raised in his first

state postconviction motion, see Fla. R. Crim. P. 3.850, but that motion did not

include the claim that counsel was ineffective for failing to argue about self-


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defense. Although that claim of ineffective assistance of counsel was raised in

Fernandez’s second state postconviction motion, Fernandez did not even allude to

his second motion in his federal petition. See Smith, 572 F.3d at 1352. Fernandez

included his claim of ineffective assistance in his objection to the report and

recommendation, but we cannot say that the district court abused its discretion

when it refused to consider a claim that Fernandez had never presented to the

magistrate judge. See Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009)

(“[A] district court has discretion to decline to consider a party’s argument when

that argument was not first presented to the magistrate judge.”).

      We AFFIRM the denial of Fernandez’s petition for a writ of habeas corpus.




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