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                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16745
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 5:13-cv-00199-WTH-PRL



LAWRENCE ANDREW INGRAM,

                                                          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
                      ________________________

                              (June 1, 2018)

Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM:
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      Lawrence Andrew Ingram, a Florida prisoner proceeding pro se, appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We granted

a certificate of appealability on whether Ingram’s trial counsel was constitutionally

ineffective for failing to move for a new trial based on the state trial court’s

erroneous ruling that evidence excluded under Richardson v. State, 246 So. 2d 777

(Fla. 1971), could be admitted for impeachment purposes if Ingram testified. After

careful review, we affirm.

                                           I.

A.    TRIAL PROCEEDINGS

      Ingram was accused of long-term sexual abuse by his daughter in 2004.

Shortly before trial, the government disclosed that law enforcement found evidence

on Ingram’s computer showing visits to websites featuring incestuous sexual

relationships. Ingram’s trial counsel moved to exclude this evidence under

Richardson, arguing it was substantial evidence and its late disclosure was

extremely prejudicial to the defense because it would take an expert witness’s help

to prepare to rebut it. The state trial court granted the motion, noting it had taken a

forensic computer analyst to compile the evidence for the government; the

evidence was relevant and “materially injurious” to Ingram; and there was no

opportunity before trial for defense counsel to review the evidence. However, the

court also stated that if Ingram got on the stand and said “he’s never looked at


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pornography,” he would open the door to this evidence. His counsel said, “I

agree,” and did not object to the ruling.

      At trial, both Ingram’s daughter and son testified he had sexually abused

them. On June 10, 2005, before the defense began presenting its case, Ingram, his

counsel, and the court had an extended discussion about Ingram’s decision on

whether to testify. Ingram acknowledged he understood it was ultimately his

decision to testify or not. His counsel explained why he advised Ingram against

testifying. Counsel said he thought the computer evidence was “potentially

devastating.” Although counsel did not think Ingram’s general testimony denying

he had sexually abused his daughter would open the door to the computer

evidence, counsel was concerned that simply taking the stand would open Ingram

up to credibility attacks, including questions related to viewing pornography. The

court agreed: “[I]f [Ingram] chooses to be a witness, . . . I can picture the question,

[y]ou deny having sex with your children, but you like to watch web sites, don’t

you, or, you like to watch movies about that, don’t you?” The court said if Ingram

answered no, then the computer evidence would be in. Ingram and his counsel

both indicated they understood. Ingram then told the court he would not testify

because he knew it would lead to the admission of the computer evidence.




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      The jury convicted Ingram of sexually abusing his daughter, but not his son.

A Florida Appeals Court summarily affirmed. Ingram v. State, 939 So. 2d 113

(Fla. 5th DCA 2006) (table decision).

B.    POST-CONVICTION PROCEEDINGS

      1. State Court

      Ingram sought post-conviction relief under Florida Rule of Criminal

Procedure 3.850. In part, he alleged ineffective assistance of counsel based on his

lawyer’s (1) failure to object to the state trial court’s erroneous ruling that the

computer evidence could be used to impeach Ingram’s credibility, (2) failure to

move for a new trial based on the erroneous ruling because it prevented Ingram

from testifying, and (3) incorrect advice to Ingram on the night of June 9, 2005 that

the Richardson ruling was preserved for appeal regardless of whether he testified

the next day. The state habeas court held an evidentiary hearing in 2011.

      At the hearing, Ingram’s trial counsel said he talked to Ingram about

testifying many times before trial. Counsel believed that, in general, a defendant’s

testimony is important in a child abuse case if the defendant can explain why a

child might fabricate an allegation. Counsel said the main reason Ingram didn’t

testify was because it would lead to the admission of the computer evidence.

      Counsel also said he knew the state trial court’s Richardson ruling was

wrong and Ingram couldn’t legally be impeached by the computer evidence if he


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took the stand.1 He explained that he deliberately did not point out the error

because he believed the judge would have continued the trial to allow the defense

time to prepare a rebuttal to the computer evidence and then allowed that evidence

to come in not just for impeachment purposes, but also in the government’s case-

in-chief. Counsel had experience with judges doing this before: “cure the

Richardson hearing problem by doing a recess, having me take the deposition, and

then change his mind and let [the challenged evidence] in.” And because counsel

believed the computer evidence to be “devastating,” he did not want it “com[ing]

in in any shape or fashion.”

       Ingram’s trial counsel agreed that the trial court’s erroneous Richardson

ruling could have been raised in a motion for new trial and that there was no reason

not to include it because “at that point, [Ingram’s] convicted.” He further

explained the failure to file the motion for new trial resulted from a procedural

error in his office, for which he took responsibility. Counsel also agreed that

Ingram could not have knowingly waived his right to testify without being told that

the state trial court’s Richardson ruling was erroneous. Counsel could not recall

whether he told Ingram the Richardson ruling was erroneous or his concern that the

judge would respond by continuing the trial and allowing the government to bring

in the computer evidence in its case-in-chief.

       1
       See Elledge v. State, 613 So. 2d 434, 436 (Fla. 1993) (“[T]here is neither a rebuttal nor
impeachment exception to the Richardson rule.”).
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      Ingram also testified at the evidentiary hearing. Ingram said his testimony at

trial would have (1) denied the allegations; (2) expanded on his alibi defense for

one instance of sexual abuse; (3) described the “dynamics” of his household,

including his relationship with his daughter and possible reasons she might have

had to fabricate the charges; (4) explained the context for statements he made after

his arrest; (5) rebutted or explained the contents of his daughter’s journal; and (6)

generally “explain[ed] the whole family picture of how we got before the Court

that day.” Ingram then gave this testimony in detail. He also said that on the night

of June 9, 2005, he and his trial counsel discussed whether the Richardson ruling

was preserved for appeal in the context of whether he should testify.

      The state habeas court denied post-conviction relief. In relevant part, the

court determined Ingram’s trial counsel’s performance was not deficient because

he had “ample strategic reasons” not to challenge the state trial court’s erroneous

Richardson ruling and these reasons were “reasonable.” The state habeas court

also determined Ingram couldn’t show prejudice because “[t]here [was] no

showing that had [Ingram] testified, the outcome of the proceeding would have

been different.” The court noted Ingram would have only denied the sexual

allegations, and the witnesses against him were cross-examined. The state habeas

court also concluded Ingram could not show prejudice from counsel’s failure to




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file a motion for new trial on the basis of the erroneous Richardson ruling because

that ruling “was tested on appeal.”

      The state habeas court determined there was nothing in the record or that

came out in the evidentiary hearing to support Ingram’s claims that his counsel

misadvised him about whether he needed to testify to preserve the erroneous

Richardson ruling for appeal. That court said “the matter was discussed and

counsel advised the Defendant about the consequences of him testifying, and the

Defendant elected not to testify.” Ingram appealed the denial of post-conviction

relief, but it was affirmed without written opinion. Ingram v. State, 100 So. 3d 712

(Fla. 5th DCA 2012) (per curiam).

      2. Federal Court

      Ingram then filed a motion under 28 U.S.C. § 2254 in federal court. After

the State responded, the district court denied relief. Ingram filed a motion to alter

or amend judgment, which was denied. The district court also denied a certificate

of appealability (“COA”). After Ingram filed a notice of appeal, this Court granted

a COA on the following issue:

      Whether counsel was ineffective for failing to file a motion for a new
      trial on the basis that the trial court’s ruling regarding the evidence of
      incest-related material on Mr. Ingram’s computer violated Richardson
      v. State, 246 So. 2d 777 (Fla. 1971).




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                                          II.

      When a state habeas court has adjudicated a claim on the merits, the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) allows a

federal court to grant habeas relief only if the state court’s decision was (1)

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

Federal law, as determined by the Supreme Court,” or (2) “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 federal court must

presume the correctness of the state court’s factual findings unless the petitioner

overcomes them by clear and convincing evidence. See id. § 2254(e)(1); Putman

v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). Thus, while we review de novo the

federal district court’s decision, we review the state habeas court’s decision with

deference. Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217, 1239 (11th Cir.

2010).

      To prove ineffective assistance of counsel, the petitioner must show his

attorney’s performance was deficient and that the deficient performance prejudiced

him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

An attorney’s performance is deficient if it falls below “the range of competence

demanded of attorneys in criminal cases.” Id. (quotation omitted). Courts apply a

“strong presumption that counsel’s conduct falls within the wide range of


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reasonable professional assistance” and the petitioner must “overcome the

presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.” Id. at 689, 104 S. Ct. at 2065 (quotation omitted).

“When this presumption is combined with § 2254(d), the result is double deference

to the state court ruling on counsel’s performance.” Daniel v. Comm’r, Ala. Dep’t

of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016). Prejudice means “there 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.

                                          III.

        At the state evidentiary hearing, Ingram’s trial counsel acknowledged his

mistake in failing to file a motion for new trial, in which he would have included

the erroneous Richardson ruling as a basis for relief. The state habeas court

determined the erroneous Richardson ruling was tested on appeal, and so there was

no prejudice from the failure to file a motion for new trial for this reason.

However, the district court found Ingram did not challenge the Richardson ruling

on appeal, and the State does not dispute this finding. Thus, the state habeas

court’s decision that Ingram couldn’t show prejudice under Strickland was based

on an “unreasonable determination of the facts.” See 28 U.S.C. § 2254(d)(2),

(e)(1). We must therefore resolve Ingram’s ineffective assistance claim “without


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the deference AEDPA otherwise requires.” Panetti v. Quarterman, 551 U.S. 930,

953, 127 S. Ct. 2842, 2858 (2007).

      Applying the Strickland test, however, we conclude Ingram cannot show

prejudice. That is, he cannot show he would have been entitled to a new trial if his

counsel had filed a motion based on the trial court’s erroneous Richardson ruling.

See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

      Under Florida law, a trial court shall grant a new trial if “[t]he court erred in

the decision of any matter of law arising during the course of the trial” and the

“substantial rights of the defendant were prejudiced thereby.” Fla. R. Crim. P.

3.600(b)(6). Generally, Florida courts cannot “entertain[] a motion for new trial

. . . absent an objection.” State v. Goldwire, 762 So. 2d 996, 998 (Fla. 5th DCA

2000); accord State v. Brockman, 827 So. 2d 299, 303 (Fla. 1st DCA 2002). The

purpose of this “contemporaneous objection rule” is “to give trial judges an

opportunity to address objections made by counsel in trial proceedings and correct

errors.” State v. Rhoden, 448 So. 2d 1013, 1016 (Fla. 1984), rev’d on other

grounds by Cargle v. State, 770 So. 2d 1151, 1152–54 (Fla. 2000). “The rule

prohibits trial counsel from deliberately allowing known errors to go uncorrected

as a defense tactic and as a hedge to provide a defendant with a second trial if the

first trial decision is adverse to the defendant.” Id.




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      However, a Florida trial court can consider a claimed error on a motion for a

new trial even when there wasn’t a contemporaneous objection, if the error was

“fundamental.” See Goldwire, 762 So. 2d at 998. Fundamental errors “go[] to the

foundation of the case.” Jackson v. State, 983 So. 2d 562, 568 (Fla. 2008)

(quotation omitted). This type of error “reach[es] down into the validity of the trial

itself to the extent that a verdict of guilty could not have been obtained without the

assistance of the alleged error.” Goldwire, 762 So. 2d at 998 (quotation omitted).

But even fundamental errors will escape review if defense counsel affirmatively

agreed to the trial court’s conduct—that is, they were aware of the court’s omission

or error, and affirmatively agreed to it or asked for it. See Blandon v. State, 657

So. 2d 1198, 1199 (Fla. 5th DCA 1995) (“Fundamental error analysis would not

apply if the defendant knowingly waived the [objection],” that is, if “defense

counsel makes a tactical decision” not to object).

      During the Richardson hearing and during the trial court’s discussion with

Ingram and his counsel about Ingram’s decision to testify, counsel did not object to

the trial court’s ruling that the computer evidence could come in as impeachment if

Ingram testified. Absent a contemporaneous objection or fundamental error, the

trial court could not have entertained a motion for new trial on this ground. See

Goldwire, 762 So. 2d at 998.




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       Even assuming the erroneous Richardson ruling was a fundamental error

under Florida law so that the contemporaneous-objection rule did not apply,

Blandon would still have barred the trial court from entertaining a motion for new

trial on this ground. At the state evidentiary hearing, trial counsel testified he

knew the trial court’s Richardson ruling was erroneous at the time it was made. He

said he did not object to it because he knew, from experience, that the court would

simply grant a continuance to cure the prejudice from the late disclosure of the

computer evidence, and then allow it to come in. Counsel believed this evidence

would be “devastating” to his client’s case. Based on this testimony, the state

habeas court determined counsel’s failure to object was not deficient performance

because he had “ample strategic reasons” not to challenge the trial court’s

erroneous Richardson ruling and “[t]hose reasons were, under the circumstances,

reasonable.” The state court’s finding that counsel’s failure to object was not

deficient is owed double deference. See Daniel, 822 F.3d at 1262. Ingram has not

shown this finding was contrary to, or involved an unreasonable application of,

clearly established federal law, and we denied a COA on the issue of counsel’s

deficient performance for failure to object.2 See 28 U.S.C. § 2254(d)(1);

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.


       2
         Ingram argues his counsel’s tactical decision was unreasonable because it interfered
with his right to testify. Even if this argument were not waived by Ingram’s failure to raise it in
his opening brief, see Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682–83 (11th Cir.
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       Trial counsel’s failure to object was not deficient conduct, but a reasonable

tactical choice. Under Blandon, the tactical choice means counsel affirmatively

agreed to the trial court’s ruling, “knowingly waived” his objection, and could not

“benefit from that decision” on a motion for new trial. See Blandon, 657 So. 2d at

1199; Goldwire, 762 So. 2d at 998. Therefore, even if counsel had filed a motion

for new trial based on the erroneous Richardson ruling, Ingram would not have

been entitled to a new trial under Florida law. Ingram cannot show prejudice from

counsel’s failure to file a motion for a new trial, and thus cannot prove ineffective

assistance of counsel. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

       AFFIRMED.




2014), it is without merit. Ingram’s argument is another ineffective assistance of counsel
claim—this one alleging counsel’s failure to inform Ingram that the state trial court’s Richardson
ruling was erroneous and include him in the strategic decision-making prejudiced Ingram by
preventing him from making a knowing decision not to testify. Ingram testified at the state
evidentiary hearing, however, that he and his counsel discussed whether the Richardson ruling
was preserved for appeal on the night of June 9, 2005 in the context of whether or not Ingram
should testify. Inherent in that discussion is an explanation of why the Richardson ruling was
appealable—that is, why it was erroneous or objectionable. Thus, the record belies Ingram’s
claim of ineffective assistance on this ground.
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