                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                             No. 05-10962                    September 2, 2005
                         Non-Argument Calendar             THOMAS K. KAHN
                       ________________________                CLERK


                 D. C. Docket No. 04-00027-CV-4-RH-WCS

WALTER HARRIS,


                                                          Petitioner-Appellant,

                                  versus

JAMES CROSBY,
CHARLES CRIST,


                                                      Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________
                            (September 2, 2005)



Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
       Walter Harris is a Florida prisoner serving a 25-year sentence for several

offenses arising from his sexual battery of a 12-year-old student while Harris was a

teacher and coach. He appeals pro se the denial of his federal habeas petition,

which was filed pursuant to 28 U.S.C. § 2254.

       Because Harris filed his petition after the effective date of the Antiterrorism

and Effective Death Penalty Act of 1996, the provisions of that Act apply. That

Act “prevents a federal court from granting habeas relief unless the state court’s

decision either was ‘contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States’

or ‘was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.’” Rutherford v. Crosby, 385 F.3d 1300,

1306 (11th Cir. 2004) (quoting 28 U.S.C. § 2254(d)).

       The State of Florida filed six counts against Harris. Each charged sexual

battery, in violation of Fla. Stat. § 794.011(8)(b), and the lesser included offense of

battery, in violation of Fla. Stat. § 784.03. Harris first argues that he was denied

due process because the state trial court refused to instruct the jury on an additional

statute that Harris contends is also a lesser included offense of Fla. Stat.

§ 794.011(8)(b).1 We have held, however, that in non-capital cases, like this one,


       1
          Harris’ brief cites Fla. Stat. § 794.011(5) as the lesser included offense on which he wanted
the jury instructed. We, like the State, assume that Harris meant to cite Fla. Stat. § 800.04(4), which

                                                  2
the “Due Process Clause does not require a state court to instruct the jury on lesser

included offenses.” Perry v. Smith, 810 F.2d 1078, 1080 (11th Cir. 1987). Thus,

the argument is meritless.

       Harris’ initial brief can be fairly construed as also asking this Court to

review whether the state trial court’s failure to provide the additional lesser

included offense instruction was an error under state law. We will not reach the

merits of that argument. “[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions. In conducting habeas

review, a federal court is limited to deciding whether a conviction violated the

Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S.

62, 68, 112 S. Ct. 475, 480 (1991). As we have said, there is no federal due

process violation, and that is all we need decide.

       Harris’ second argument is that his trial counsel was constitutionally

ineffective for requesting that the jury be instructed that Fla. Stat. § 800.04(4)(a) is

a lesser included offense of Fla. Stat. § 794.011(8)(b). It is undisputed that trial

counsel erred in requesting that instruction because counsel was referring to the

revised version of Fla. Stat. § 800.04(4)(a) that went into effect in October 1999,



is the statute that Harris had relied on in his § 2254 petition and argued to the district court. Harris
cannot switch statutes on appeal. Of course, as the discussion in the text reflects, which statute is
at issue is irrelevant to our resolution of the merits of this argument.

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and thus did not apply to Harris’ crimes, which had occurred in March and April of

1999. Harris says that he was prejudiced by counsel’s error because counsel

should have requested a lesser included offense instruction about a statute that

applied to the proceedings (his brief doesn’t say which statute) and that, had

counsel done so, the jury would have likely convicted Harris of that other lesser

included offense.

       Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), provides

the “clearly established . . . federal law governing ineffective assistance claims.”

Rutherford, 385 F.3d at 1308. Under Strickland, Harris “must demonstrate that his

counsel’s performance was outside the wide range of professionally competent

assistance . . . [and] he must establish a reasonable probability that, but for his

counsel’s deficient performance, the result of the proceedings would have been

different.” Rutherford, 385 F.3d at 1308 (internal marks and citations omitted).

“[F]ailure to establish either is fatal and makes it unnecessary to consider the

other.” Id.

      On its face, Harris’ argument is that his trial counsel erred simply by

requesting that the jury be instructed on the October 1999 version of Fla. Stat. §

800.04(4)(a). Harris cannot demonstrate that he suffered prejudice from that error.

No prejudice attached merely because counsel asked for that to which Harris was



                                            4
not entitled.

         Liberally construing Harris’ brief, it may be read to argue that his trial

counsel erred by not requesting that the jury be instructed on a different statute.

Under this construction as well Harris cannot demonstrate “that, but for his

counsel’s deficient performance, the result of the proceedings would have been

different.” Rutherford, 385 F.3d at 1308. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. (internal

marks and citations omitted). Harris’ assertions that he would have been convicted

of the lesser included offense, as opposed to the greater offense, are pure

speculation—speculation both that the state trial court would have decided to

instruct the jury on the lesser included offense and that the jury, if instructed on the

lesser included offense, would have convicted on it instead of the higher offense.

That speculation is insufficient to undermine our confidence in the outcome of his

trial.

         AFFIRMED.




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