            Case: 19-12131   Date Filed: 08/31/2020   Page: 1 of 9



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-12131
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 3:17-cv-00494-BJD-PDB

JAMEL MOBLEY,


                                                           Petitioner-Appellant,


                                  versus


SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,


                                                       Respondents-Appellees.

                       ________________________

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

                             (August 31, 2020)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LAGOA, Circuit
Judges.
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PER CURIAM:

       Jamel Mobley—a Florida state prisoner serving a 35-year sentence for

attempted second-degree murder, attempted armed robbery, and aggravated

assault—appeals the district court’s denial of his 28 U.S.C. § 2254 petition. On

appeal, he argues that his trial counsel was constitutionally ineffective for failing to

preserve for appeal a challenge under Batson v. Kentucky, 476 U.S. 79 (1986),1 to

the state’s use of peremptory strikes during voir dire in his underlying criminal

proceedings. He contends that the state habeas court unreasonably applied

Strickland v. Washington, 466 U.S. 668 (1984), and that his counsel’s failure to

preserve the issue was prejudicial because the Batson violation would have

warranted an automatic reversal of his conviction on appeal or resulted in a

reasonable probability that the state trial court would have reversed its rulings on

the peremptory strikes had his counsel renewed the objection. After careful

consideration and review, we affirm the district court’s denial of relief.

       In 2009, Mobley was charged with attempted first-degree murder, attempted

felony murder, attempted armed robbery, and aggravated assault stemming from a

failed carjacking. Two years later, a jury found him guilty of attempted second-



       1
         Mobley originally articulated his challenge with reference to State v. Neil, 457 So. 2d
481 (Fla. 1984). In the interest of clarity, we refer simply to Batson, given that Neil is Florida’s
counterpart to Batson. See King v. Moore, 196 F.3d 1327, 1331 (11th Cir. 1999) (stating that
Neil anticipated Batson’s holding by two years).

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degree murder, attempted felony murder, attempted armed robbery, and aggravated

assault. Thereafter, he was sentenced to serve three concurrent 30-year prison

terms in addition to a consecutive five-year sentence. Mobley appealed his

conviction, raising various issues on direct appeal.

       Among the issues Mobley raised was a Batson claim. He argued that the

trial court erred in overruling his attorney’s Batson challenge and allowing the

state to exercise peremptory strikes against three prospective Black jurors. The

Florida First District Court of Appeal declined to address Mobley’s claim because

his attorney failed to preserve the issue for appeal. See Mobley v. State, 97 So. 3d

344, 345 (Fla. Dist. Ct. App. 2012). As a result, the court affirmed the second-

degree murder, attempted armed robbery, and the aggravated assault convictions.2

       Mobley later filed a Florida Rule of Criminal Procedure 3.850 motion in

which he alleged, among other things, that he received ineffective assistance of

counsel because his trial counsel failed to preserve his Batson challenge. That

motion was denied based on the state habeas court’s conclusion that “failure to

preserve issues for appeal does not show the necessary prejudice under Strickland”

and that “prejudice must be assessed based upon its effect on the results of the trial,




       2
        The state conceded that the attempted felony murder conviction was invalid under the
merger doctrine. Upon remand, the trial court struck the attempted felony murder count.

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not on its effect on appeal.” Doc. 21-7 at 107 (internal quotation marks omitted).3

The state habeas court determined that Mobley had not shown that counsel's failure

to preserve the Batson issue for appeal was prejudicial to the outcome of his trial.

The First District Court of Appeal affirmed the denial without issuing a written

opinion.

       In April 2017, Mobley filed a 28 U.S.C. § 2254 petition for a writ of habeas

corpus in the United States District Court for the Middle District of Florida. In his

petition, he raised several claims, including the Batson claim. As to the Batson

claim, the district court concluded that the state habeas court’s decision to deny the

claim was not contrary to or an unreasonable application of Strickland or based on

an unreasonable determination of the facts. This appeal followed. A judge of this

Court granted Mobley a certificate of appealability on the following issue:

       Whether the district court erred by denying Mr. Mobley’s claim that
       counsel was ineffective for failing to preserve for appeal his challenge
       to the state’s use of peremptory strikes, after concluding that the state
       court’s rejection of it was not contrary to, or an unreasonable
       application of, Strickland v. Washington, 466 U.S. 668 (1984).4

       When examining a district court’s denial of a § 2254 habeas petition, “we

review questions of law and mixed questions of law and fact de novo, and findings


       3
           “Doc. #” refers to the corresponding numbered entry on the district court’s docket.
       4
         We do not address Mobley’s argument that the denial of the Batson challenge at trial was
error because the certificate of appealability is limited to Mobley’s ineffective assistance of
counsel claim. In addition, Mobley has not challenged the district court’s denial of that claim as
procedurally defaulted, so the issue has been abandoned.
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of fact for clear error.” LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1259

(11th Cir. 2005). The district court’s determination that the state court decision

was reasonable is reviewed de novo. Id.

      Under the Sixth Amendment of the Constitution, a defendant has the right to

effective assistance of counsel. U.S. Const. amend. VI; Strickland, 466 U.S. at

686. To establish ineffective assistance of counsel, a defendant must show:

(1) that counsel’s representation fell below an objective standard of

reasonableness, and (2) that the defendant was prejudiced as a result, meaning that

there is a reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different. Strickland, 466 U.S. at 688, 694.

      Mobley argues that the district court erred in denying his claim that his trial

counsel was ineffective for failing to preserve for appeal his challenge to the state’s

use of peremptory strikes, after concluding that the state court’s rejection of it was

not contrary to, or an unreasonable application of, Strickland. In Mobley’s view,

he suffered prejudice because proper preservation of the Batson challenge

(renewing the objection to the racially motivated strikes at the conclusion of voir

dire, before the jury was sworn in) would have resulted in either a reversal on

appeal or “a reasonable probability that the court would have realized its errors”

and would not have allowed the state to strike the three Black jurors. Appellant’s

Br. at 26. Thus, he contends, the district court erred in denying his claim. We

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reject Mobley’s argument because it fails to recognize the role of federal courts in

reviewing habeas petitions based on postconviction claims adjudicated in state

courts.

      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a

federal court may grant habeas relief with respect to a claim adjudicated in state

court only if the state court proceedings resulted in a decision that was

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

Federal law, as determined by the Supreme Court of the United States” 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); Maharaj v. Sec’y

for Dep’t. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005).

      “A state court acts contrary to clearly established federal law if it confronts a

set of facts that are materially indistinguishable from a decision of the Supreme

Court of the United States and nevertheless arrives at a result different from its

precedent.” Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1286 (11th Cir.

2012) (internal quotation marks omitted). A state court’s decision is based on an

unreasonable application of clearly established federal law if it “identifies the

correct governing legal rule but unreasonably applies it to the facts of the particular

state prisoner’s case, or when it unreasonably extends, or unreasonably declines to

extend, a legal principle from Supreme Court case law to a new context.” Id.

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(internal quotation marks omitted). Here, Mobley cannot establish that the state

habeas decision was contrary to clearly established federal law because the

Supreme Court has not addressed a set of materially indistinguishable facts.

Further, as discussed below, he cannot establish that the state unreasonably applied

Strickland to the facts of this case.

      Under Florida law, simply objecting to the state’s possibly discriminatory

strikes, and then countering any purportedly race-neutral explanation given by the

prosecution, does not suffice to preserve a Batson claim for appeal. Rather, trial

counsel must press the already-rejected challenge a second time at the conclusion

of voir dire, either by expressly renewing the objection or by accepting the jury

pursuant to a reservation of this claim. Joiner v. State, 618 So. 2d 174, 176 (Fla.

1993); see also Melbourne v. State, 679 So. 2d 759, 765 (Fla. 1996) (ruling that a

defendant “failed to preserve” a claim of discriminatory jury selection “because

she did not renew her objection before the jury was sworn”).

      Citing Davis v. Sec’y for Dep’t of Corr., 341 F.3d 1310 (11th Cir. 2003),

Mobley argues that he was substantially prejudiced by his counsel’s failure to

preserve the Batson challenge. In Davis, this Court considered the issue of

whether an attorney’s failure to preserve a Batson claim for appeal prejudiced the

defendant. 341 F.3d at 1314. We held that “when a defendant raises the unusual

claim that trial counsel, while efficacious in raising an issue, nonetheless failed to

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preserve it for appeal, the appropriate prejudice inquiry asks whether there is a

reasonable likelihood of a more favorable outcome on appeal had the claim been

preserved.” Id. at 1316. In reaching this conclusion, however, we noted that

affording § 2254(d)(1) deference—thus requiring us to determine that the state

court’s ruling was contrary to or an unreasonable application of established federal

law—was not necessary because the state courts did not resolve the merits of

Davis’s claim. Id. at 1313. But such deference is necessary in this case. Here, we

consider the issue of whether the state habeas court unreasonably applied

Strickland in concluding that counsel’s failure to preserve the Batson challenge did

not result in the requisite prejudice for affording habeas relief. Accordingly, Davis

is inapposite and does not apply to this appeal. Further, Mobley has not identified

any clearly established federal law with materially indistinguishable facts and thus

cannot show that the state courts acted contrary to clearly established federal law.

We thus move on to whether the state unreasonably applied the prejudice prong of

Strickland to the facts of this case.

      Florida courts have previously concluded that failing to preserve a Batson

challenge does not automatically demonstrate Strickland prejudice. In Carratelli v.

State, the Florida Supreme Court concluded that, in the postconviction context, “a

defendant alleging that counsel was ineffective for failing to object or preserve a

claim of reversible error in jury selection must demonstrate prejudice at the trial,

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not on appeal.” 961 So. 2d 312, 323 (Fla. 2007). In that case, the defendant

argued that his counsel was ineffective for failing to renew his objection to the trial

court’s denial of his cause challenges during voir dire. Id. at 316. The Florida

Supreme Court concluded that prejudice should be measured at trial rather than on

appeal. Accordingly, the Florida Supreme Court held that a finding of prejudice

under Strickland requires the defendant to show that a juror was actually biased

against him. Id. at 324. In so holding, the Court specifically noted that Davis

misconstrued Florida law. Id. at 321. Florida appellate courts have applied this

actual bias standard to ineffective assistance claims involving counsel’s failure to

object to potentially racially motivated peremptory strikes. See, e.g., Jones v.

State, 10 So. 3d 140, 142 (Fla. Dist. Ct. App. 2009). Mobley did not attempt to

establish that a juror placed on the jury despite his Batson challenge was actually

biased against him. Thus, the state habeas court did not unreasonably apply

Strickland in concluding that Mobley could not demonstrate prejudice and denying

his ineffective assistance of counsel claim.

      Because Mobley cannot establish that the state court acted contrary to or

unreasonably applied clearly established federal law, the district court did not err in

denying his habeas petition.

      AFFIRMED.




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