                                                                      [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                       No. 10-11941                     FEB 15, 2012
                                 ________________________                JOHN LEY
                                                                          CLERK
                           D.C. Docket No. 6:07-cv-00161-MSS-KRS



ALFONSO JOSE ALZAMORA,

lllllllllllllllllllll                                                Petitioner - Appellant,

                                           versus

SECRETARY DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

lllllllllllllllllllll                                            Respondents - Appellees.

                                ________________________

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

                                     (February 15, 2012)

Before TJOFLAT and BARKETT, Circuit Judges, and SMOAK,* District Judge.


         *
         Honorable Richard Smoak, United States District Judge for the Northern District of
Florida, sitting by designation.
PER CURIAM:

      Alfonso Jose Alzamora appeals the district court’s dismissal of his petition

for habeas relief, filed pursuant to 28 U.S.C. § 2254, and argues that the district

court erred when it determined that the Florida Supreme Court’s decision

upholding his conviction did not involve an unreasonable application of Supreme

Court precedent under AEDPA. Specifically, the district court granted Alzamora a

certificate of appealability on whether due process requires the retroactive

application of the Florida Supreme Court’s decision in Thompson v. State, 695

So.2d 691 (Fla. 1997), which held that knowledge of a victim’s status as a police

officer was a necessary element of the offense of attempted murder of a police

officer in Florida, of which Alzamora was convicted. Alzamora argues that the

state court’s failure to apply Thompson retroactively is an unreasonable

application of the United States Supreme Court’s decision in Fiore v. White, 121

S.Ct. 712 (2001), which involved a similar issue of whether a state court’s

interpretation of its own statute to require an additional element of proof should

apply retroactively.

                        I. Standard of review under AEDPA

      Under 28 U.S.C. § 2254(d), a federal court cannot grant habeas relief from a



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state court judgment unless the state court’s decision on the merits of the issue was

(1) contrary to, or an unreasonable application of, clearly established federal law

as determined by the U.S. 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); Powell v. Allen, 602 F.3d 1263, 1268-69 (11th

Cir. 2010), cert. denied, (U.S. Jan. 18, 2011) (No. 10-7039). This Court reviews

de novo the district court’s decision about whether the state court acted contrary to

or unreasonably applied clearly established federal law, or made an unreasonable

determination of fact, but this Court owes deference to the state court’s final

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

Cir.), cert. denied, 131 S.Ct. 177 (2010).

                                    II. Discussion

      Alzamora argues that at his trial he was entitled to a jury instruction

explaining that knowledge of the victim’s status as a law enforcement officer was

an essential element of the crime charged. We need not reach this question

because we conclude that the failure to give this instruction, under the facts of this

case, constituted harmless error, and, therefore, he is not entitled to relief from this

Court. See, e.g., Neder v. United States, 527 U.S. 1, 15 (1999) (“The omission of

an element from the jury instructions is subject to harmless-error analysis.”); see

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also Agan v. Vaughn, 119 F.3d 1538, 1545 (11th Cir. 1997) (“A defendant’s right

to due process is not violated unless an erroneous instruction, when viewed in

light of the entire trial, was so misleading as to make the trial unfair.”). We look

to the trial record to determine whether the trial judge’s failure to instruct the jury

as to the knowledge element of attempted felony-murder of a police officer

rendered the trial unfair.

      That record reflects overwhelming evidence that Alzamora knew that the

victim was a police officer. The victim, Detective Ron Johnson testified at trial

that he was a member of the arrest team during the sting operation to arrest

Alzamora. He testified that when he approached Alzamora’s car from the driver’s

side, he was wearing “a black flap jacket which looks like a ski jacket with the

word ‘police’ on the front and back.” This jacket was admitted as evidence, and

Agent Johnson put it on to show the jurors. Agent Johnson further testified that

Alzamora looked at him while the “takedown” was in progress, and that when he

opened Alzamora’s car door, he was yelling “police.” At this point Alzamora

started his car, dragging Detective Johnson to the ground. The door or another

part of the car hit Johnson in the head, injuring him severely.

      Likewise, Officer Lanferseik, another member of the sting operation,

testified that as Detective Johnson approached Alzamora’s car from the side, he

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heard Johnson shout, “Police! You’re under arrest!” while he attempted to open

Alzamora’s car door. Agent Johnson and Agent Lanferseik both testified that

Agent Johnson and other agents were yelling “police” and “policia” during the

incident. A government informant who was also at the scene testified that he

heard the agents shout “police.” Further, Agent Johnson stated that it was his

practice to yell the word “police” while doing this type of “takedown.”

      Based on these facts, we conclude that the weight of the evidence shows

that the jury would likely have found that Alzamora knew his victim was a police

officer at the time of the offense. The failure to so instruct was therefore harmless

error, and Alzamora is not entitled to relief.

      AFFIRMED.




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