           Case: 15-11740   Date Filed: 09/26/2016   Page: 1 of 14


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11740
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:12-cv-20557-PAS



JAMES C. MARSHALL,

                                                           Petitioner-Appellant,

                                  versus

DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                       ________________________

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

                            (September 26, 2016)

Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Petitioner James Marshall, proceeding pro se, appeals the district court’s

denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. On

appeal, Petitioner argues that his appellate counsel was ineffective for failing to file

a supplemental brief challenging the manslaughter jury instruction given by the

trial court. After careful review, we affirm.

I.    BACKGROUND

      A.     State Criminal Conviction and Direct Appeal

      On April 2, 2004, Shemeria Brown awoke in the middle of the night to

sounds of her grandmother, Marie Sanders, screaming. When Brown went to

investigate, she saw Petitioner with his hands around Sanders’s neck. Brown

called the police and tried to force Petitioner off of Sanders, but she was

unsuccessful. At some point, Sanders stopped screaming and fell to the floor.

After she fell, Petitioner continued to strangle her. When police arrived, Petitioner

still had his hands around Sanders’s neck and officers had to intervene. Officers

administered CPR but were not able to resuscitate Sanders.

      The State of Florida subsequently charged Petitioner in an information with

second-degree murder pursuant to Florida Statute § 782.04(2) for the strangulation

death of Marie Sanders. At trial, Petitioner requested an instruction on the lesser-

included offense of manslaughter. Following closing arguments, the trial court

instructed the jury on second-degree murder and the lesser-included offense of


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manslaughter. The trial court then stated that in order “to convict for second

degree murder it is not necessary for the State to prove that the defendant had an

intent to cause death.” Consistent with the 2006 standard jury instructions, the trial

court instructed the jury that in order to find Petitioner guilty of manslaughter, the

jury had to find beyond a reasonable doubt that: “One, Marie Sanders is dead.

Two, [Petitioner] intentionally caused the death of Marie Sanders; or the death of

Marie Sanders was caused by the culpable negligence of [Petitioner].” The trial

court defined culpable negligence as “a course of conduct showing a reckless

disregard of human life, or of the safety of persons exposed to its dangerous

effects, or such an entire want of care as to raise the presumption of a conscious

indifference to consequences.”

      The jury found Petitioner guilty of second-degree murder, and the trial

court sentenced him to 45 years’ imprisonment. On May 2, 2008, Petitioner

filed an appeal in the Third District Court of Appeal (“Third DCA”), arguing

that the evidence was insufficient to support the second-degree murder

conviction, the trial court erred by failing to conduct various hearings and

evaluations, and the trial court erred by not requiring a proper presentence

report.

      In February 2009, while Petitioner’s appeal was pending in the Third

DCA, Florida’s First District Court of Appeal (“First DCA”) held that the


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lesser-included offense of manslaughter does not require an intent to kill.

Montgomery v. State, 70 So. 3d 603, 604, 606–07 (Fla. 1st DCA 2009)

(“Montgomery I”). The First DCA explained that the 2006 standard

manslaughter-by-act jury instruction, which provided that the defendant

“intentionally caused [the victim’s death],” improperly imposed an

additional element of intent to kill, and such an error constituted

fundamental error. Id. at 70 So. 3d at 607–08. Based on the conflict among

the Florida intermediate appellate courts, the First DCA also certified the

following question to the Florida Supreme Court: “Is the state required to

prove that the defendant intended to kill the victim in order to establish the

crime of manslaughter by act?” Id. at 608.

         One month later, on March 25, 2009, the Third DCA per curiam

affirmed Petitioner’s conviction and sentence without a written opinion.

Petitioner filed a motion for rehearing, and on July 22, 2009, the Third DCA

withdrew its prior opinion, and substituted a new opinion addressing

Petitioner’s argument that the trial court erred by not having a Faretta 1

hearing. The Third DCA affirmed Petitioner’s conviction and sentence, and

the mandate issued on August 7, 2009. Petitioner filed a motion for belated

discretionary review with the Florida Supreme Court, but later moved to


1
    Faretta v. California, 422 U.S. 806 (1975).
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voluntarily dismiss that motion. Petitioner’s appellate counsel filed a

petition for writ of certiorari with the U.S. Supreme Court, which was denied

on April 19, 2010. See Marshall v. Florida, 130 S. Ct. 2103 (2010).

      In the meantime, Florida’s Second District Court of Appeal (“Second

DCA”) and the Third DCA determined that giving the standard

manslaughter-by-act jury instruction that included an intent to kill did not

constitute fundamental error. Valdes-Pino v. State, 23 So. 3d 871, 972 (Fla.

3d DCA 2009); Nieves v. State, 22 So. 3d 691, 692 (Fla. 2d DCA 2009).

The Florida Supreme Court took up this issue in April 2010, nearly one year

after the Third DCA affirmed Petitioner’s conviction and sentence. State v.

Montgomery, 39 So. 3d 252, 259 (Fla. 2010). In Montgomery, the Florida

Supreme Court held that the standard manslaughter-by-act jury instruction

improperly included an intent to kill and use of such an instruction

constituted fundamental error. Id. at 259–60. Shortly thereafter, the Third

DCA determined that the use of this manslaughter-by-act instruction did not

constitute fundamental error if the jury was also provided an instruction

regarding culpable negligence. Cubelo v. State, 41 So. 3d 263, 267–68 (Fla.

3d DCA 2010).

      B.     State Post-Conviction Proceedings




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       In December 2010, Petitioner filed a pro se state petition for a writ of

habeas corpus.2 He asserted that his appellate counsel performed deficiently

by failing to seek supplemental briefing on the issue of whether the

manslaughter-by-act jury instruction provided by the trial court constituted

fundamental error. Because the First DCA had decided that a manslaughter-

by-act jury instruction that included an intent to kill constituted fundamental

error, Petitioner argued that he was prejudiced by his appellate counsel’s

failure to raise this issue while his appeal was pending. In July 2011, the

Third DCA summarily denied Petitioner’s habeas petition. Marshall v.

State, 75 So. 3d 286 (Fla. 3d DCA 2011).

       C.      Federal Habeas Petition

       In 2012, Petitioner filed a pro se § 2254 petition, raising several

grounds for relief. Of relevance, Petitioner argued that his appellate counsel

was ineffective for failing to argue on direct appeal that the trial court

provided an erroneous manslaughter-by-act jury instruction. He asserted

that he was prejudiced by his counsel’s failure to seek supplemental briefing

on this issue following the First DCA’s issuance of Montgomery I during the

pendency of his direct appeal.

2
  Petitioner also filed a Florida Rule of Appellate Procedure 3.850 post-conviction motion raising
the same claim—that appellate counsel was ineffective for failing to appeal the manslaughter
jury instruction as fundamental error. The trial court dismissed this claim, so that it could be
properly raised in a state petition for a writ of habeas corpus.
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      The magistrate judge issued a Report and Recommendation (“R&R”),

recommending denying the petition. As to Petitioner’s ineffective-assistance

claim, the magistrate judge concluded that even if appellate counsel were

deficient for failing to file a supplemental brief following the First DCA’s

decision in Montgomery I, Petitioner could not show that he was prejudiced

because the Third DCA shortly thereafter held that the manslaughter-by-act

jury instruction at issue in Montgomery I was not fundamental error.

Moreover, although the Florida Supreme Court eventually held that a

manslaughter-by-act jury instruction including an intent to kill constituted

fundamental error, the Third DCA later determined that the error was not

fundamental if the trial court also instructed the jury on culpable negligence,

as the trial court did in Petitioner’s case. The magistrate judge therefore

concluded that the state court’s denial of Petitioner’s claim was not contrary

to, or an unreasonable application of, clearly established federal law.

      After considering Petitioner’s objections, the district court affirmed the R&R

in part, but referred the case back to the magistrate judge to consider Petitioner’s

ineffective-assistance claim in light of the Florida Supreme Court’s decision in

Haygood v. State, 109 So. 3d 735, 740–41 (Fla. 2013), which held that the

manslaughter instruction containing an element of intent to kill was fundamental




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error, and was not cured by a subsequent instruction on manslaughter by culpable

negligence.

      In a supplemental R&R, the magistrate judge concluded that the state court’s

rejection of Petitioner’s ineffective-assistance claim was not contrary to, or an

unreasonable application of, clearly established federal law because Petitioner’s

appellate counsel was not unreasonable for failing to anticipate the change in

Florida law regarding the manslaughter instruction. Indeed, Petitioner’s direct

appeal proceedings had concluded long before the Florida Supreme Court’s

decisions in Montgomery II and Haygood. Moreover, even after the Florida

Supreme Court determined that the instruction constituted fundamental error, the

Third DCA repeatedly held that the trial court’s use of the erroneous jury

instruction was cured where the trial court also instructed the jury on culpable

negligence.

      Over Petitioner’s objections, the district court adopted the supplemental

R&R and denied Petitioner’s § 2254 petition. However, the district court granted

Petitioner a certificate of appealability on his ineffective-assistance claim, stating

that “[a] reasonable jurist might find that appellate counsel’s failure to raise

Montgomery I constituted ineffective assistance of counsel.”

II. DISCUSSION

      A.      Applicable Standard


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      We review a district court’s denial of a habeas petition under § 2254 de

novo. Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1245 (11th Cir.

2014), cert. denied, 135 S. Ct. 1562 (2015). Although we review the district

court’s factual findings for clear error, we review its rulings on questions of law

and mixed questions of law and fact de novo. Id.

      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets

forth a standard that makes granting habeas relief difficult on a claim that the state

court has adjudicated on the merits. See White v. Woodall, 572 U.S. __, 134 S. Ct.

1697, 1702 (2014). Under AEDPA, a federal court may only grant habeas relief on

a claim that was adjudicated on the merits if the state court’s decision “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.” 28 U.S.C. § 2254(d).

      B.     Ineffective Assistance of Appellate Counsel

      Petitioner asserts that the district court erred in denying his § 2254 petition

because his appellate counsel rendered ineffective assistance by failing to

challenge the trial court’s manslaughter-by-act jury instruction following the First

DCA’s decision in Montgomery I. To establish ineffective assistance of counsel, a

§ 2254 petitioner must show that (1) counsel’s performance was deficient, falling


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below an objective standard of reasonableness, and (2) the petitioner suffered

prejudice as a result of the deficient performance. Strickland v. Washington, 466

U.S. 668, 687–88 (1984). Prejudice requires showing “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. Because a § 2254 petitioner

must establish both Strickland prongs to prevail on an ineffective-assistance claim,

a court need not consider both prongs if the petitioner fails to show either deficient

performance or prejudice. Cox v. McNeil, 638 F.3d 1356, 1362 (11th Cir. 2011).

      In the present case, the Third DCA denied Petitioner’s ineffective-

assistance claim without explanation. See Marshall v. State, 75 So. 3d 286

(Fla. 3d DCA 2011). Because we interpret the Third DCA’s decision as a

denial on the merits, it is entitled to deference under § 2254(d). See Wright

v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002)

(concluding that state court’s summary denial of claim is considered an

adjudication on the merits for purposes of § 2254(d)(1)). Petitioner must

therefore show that there was “no reasonable basis” for the state court’s

decision. See Wilson v. Warden, Ga. Diagnostic Prison, __ F.3d __, 14-

10681, manuscript op. at 14–15 (11th Cir. Aug. 23, 2016) (“Where a state

court’s decision is unaccompanied by an explanation,” a petitioner must

show “there was no reasonable basis for the state court to deny relief.”


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(quotations omitted)). Petitioner has not disputed any facts, and therefore

any claim for relief must be based on whether the state court’s ruling was

contrary to, or an unreasonable application of, clearly established federal

law. See 28 U.S.C. § 2254(d)(1).

      “It is well established that the Supreme Court’s decision in Strickland is the

controlling legal authority to be applied in ineffective assistance of counsel

claims.” Sullivan v. DeLoach, 459 F.3d 1097, 1108 (11th Cir. 2006) (quotations

omitted); Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (“Claims of

ineffective assistance of appellate counsel are governed by the same standards

applied to trial counsel under Strickland.”). Under Strickland’s performance

prong, we presume counsel’s performance was “within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 688–89. And in the

context of a direct appeal, appellate counsel does not have a duty to raise every

non-frivolous issue, as an effective attorney will winnow out the weaker

arguments, even if they have some merit. Philmore, 575 F.3d at 1264.

      Here, Petitioner has not shown that the state court’s denial of his ineffective-

assistance claim was contrary to, or an unreasonable application of, clearly

established federal law. See Early v. Packer, 537 U.S. 3, 8 (2002) (concluding that

§ 2254(d) does not require the state court to cite to a Supreme Court decision, so

long as the state court’s reasoning does not contradict any Supreme Court


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decisions). Petitioner argues that his appellate counsel was ineffective for failing

to argue that the trial court’s manslaughter-by-act jury instruction was erroneous.

However, at the time Petitioner filed his direct appeal in May 2008, neither the

Florida Supreme Court nor any Florida appellate court had deemed the instruction

invalid. It was not until February 2009, while Petitioner’s direct appeal was

pending, that the First DCA determined that the standard manslaughter jury

instruction constituted fundamental error. See Montgomery I, 70 So. 3d at 607.

Even assuming that appellate counsel is required to keep abreast of relevant case

law during the pendency of an appeal, Montgomery I was a decision of the First

DCA, not the Third DCA where Petitioner’s appeal was pending. See Pardo v.

State, 596 So. 2d 665, 667 (Fla. 1992) (“[A]s between District Courts of Appeal, a

sister’s circuit’s opinion is merely persuasive.”). What’s more is that Montgomery

I was distinguishable from the facts of the present case because the trial court in

Montgomery I only provided the jury with the manslaughter-by-act instruction

containing the intent-to-kill element. See Montgomery I, 70 So. 3d at 603–04. It

did not also instruct the jury on manslaughter by culpable negligence, as the trial

court did in the present case. See id. Because Montgomery I had no precedential

authority in the Third DCA, and because the facts of the present case were

distinguishable from Montgomery I, the state court could have reasonably




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determined that appellate counsel’s failure to file supplemental briefing based on

Montgomery I did not fall below the objective standard of reasonableness. 3

       Furthermore, effective representation does not require an attorney to

anticipate changes in the law. See Spaziano v. Singletary, 36 F.3d 1028, 1039

(11th Cir. 1994) (“We have held many times that reasonably effective

representation cannot and does not include a requirement to make arguments based

on predictions of how the law may develop.” (quotations omitted)). Again, no

court had even considered the manslaughter-by-act jury instruction issue when

appellate counsel filed Petitioner’s initial brief. Further, the only district court of

appeal to consider the issue during the pendency of Petitioner’s appellate

proceedings was not the court where Petitioner filed his direct appeal. See

Montgomery I, 70 So. 3d at 607–08. Moreover, the Florida Supreme Court did not

determine that the manslaughter jury instruction given during Petitioner’s trial—

which included both the instruction on the element of intent to kill and

manslaughter by culpable negligence—was erroneous until nearly four years after

Petitioner’s conviction and sentence were affirmed. See Haygood, 109 So. 3d at

740–41. Accordingly, Petitioner’s appellate counsel was not ineffective for failing


3
  To the extent Petitioner relies on Florida appellate court decisions in support of his argument
that counsel performs deficiently by failing to raise favorable issues decided in other Florida
intermediate appellate courts during the pendency of a direct appeal, his reliance is misplaced.
See Rambaran v. Sec’y, Dep’t of Corrs., 821 F.3d 1325, 1333 (11th Cir. 2016) (explaining that
the decision of a state intermediate appellate court does not clearly establish federal law for
purposes of § 2254).
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to anticipate, and challenge on appeal, that the manslaughter jury instruction given

during Petitioner’s trial would eventually be deemed improper. See Rambaran,

821 F.3d at 1334 (affirming denial of petitioner’s § 2254 petition raising a claim

that appellate counsel was ineffective for failing to challenge Florida’s

manslaughter-by-act jury instruction because “[n]o holding of the Supreme Court

clearly establishes that in order to perform with the ‘wide range of reasonable

professional assistance,’ counsel must accurately predict how the law will turn out

or hedge every bet in hope of a favorable development.” (citation omitted)).

Because Petitioner’s appellate counsel did not perform deficiently, Petitioner

cannot show that the state court’s denial of his claim was incorrect, much less that

it involved an unreasonable application of clearly established federal law.

III. CONCLUSION

      For the reasons stated above, we affirm the denial of Petitioner’s § 2254

petition for a writ of habeas corpus.

      AFFIRMED.




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