                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                            No. 11-11848              MARCH 1, 2012
                                        Non-Argument Calendar           JOHN LEY
                                      ________________________           CLERK


                            D.C. Docket No. 8:08-cv-00176-EAK-EAJ

PATRICK A. CHAMBERS,

llllllllllllllllllllllllllllllllllllllll                         Petitioner-Appellant,

                                               versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

llllllllllllllllllllllllllllllllllllllll                       Respondents-Appellees.
                                      ________________________

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

                                           (March 1, 2012)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         Patrick Chambers, a Florida prison inmate proceeding pro se, appeals the

district court’s denial of his petition to set aside his conviction for aggravated
assault pursuant to 28 U.S.C. § 2254. The Florida District Court of Appeal, in

affirming his conviction and sentence in Chambers v. State (“Chambers I”),

described the State’s case against Chambers thusly:

             On March 21, 2002, Mr. Chambers knocked on the door of
      Marcia Radway's apartment. Ms. Radway claimed that he forced his
      way in and told her that he had been hired to kill her. He pulled out a
      gun and threatened her with it. At the time of these events, Richard
      Blair was in the bathroom of the apartment. Mr. Chambers allegedly
      threatened him with the gun and told him not to come out of the
      bathroom. A struggle then occurred between Ms. Radway and Mr.
      Chambers in which the gun discharged and shot her in the leg. Mr.
      Chambers then fled from the apartment. At trial, Ms. Radway testified
      that she had not known Mr. Chambers prior to this burglary. Ms.
      Radway is Jamaican and when the police first arrived at the scene of
      this crime, she told them that another Jamaican named “Zeke” had
      shot her.
             Mr. Chambers was arrested following a high-speed car chase
      during which he threw the gun involved in the shooting out the
      window of his car. Following his arrest, Mr. Chambers gave a
      recorded statement to the police in which he claimed that he and a
      man named “Dray” had gone to the apartment to purchase thirteen
      pounds of marijuana. Mr. Chambers stated that “Dray” was involved
      in the purchase of the marijuana in another room, while he merely
      waited in the living room. Mr. Chambers heard a scuffle in the other
      room and then a gunshot. Thereafter, the two men fled together.
      However, no one named “Dray” was ever located. The gunshot
      alerted neighbors to this event, and no neighbor saw anyone other
      than Mr. Chambers leave the apartment. It is interesting to note,
      however, that Mr. Blair left the apartment immediately after the
      shooting and did not return until the police had already begun their
      investigation.
             The State charged Mr. Chambers with armed burglary of a
      dwelling, aggravated assault of Richard Blair, attempted
      second-degree murder of Ms. Radway, and tampering with physical

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      evidence, i.e., the firearm. Mr. Chambers was found not guilty of the
      burglary and of the assault on Richard Blair. He was found guilty of
      tampering, but that conviction creates no issue for appeal.

880 So.2d 696, 698 (Fla. 2d Dist. Ct. App. 2004). The trial court instructed the

jury on the lesser included offenses of attempted second-degree murder:

aggravated battery, aggravated assault, felony battery, battery and assault.

Defense counsel did not object to the instructions. On appeal, Chambers argued

that aggravated battery was not a category one lesser-included offense, and,

moreover, that the charging document failed to allege the essential elements of the

offense. The District Court of Appeal agreed, but held that the error did not

amount to a fundamental error requiring reversal. Chambers I, 880 So.2d at 699.

Chambers then petitioned the appellate court for a writ of habeas corpus on the

ground that appellate counsel was ineffective for failing to argue that it was

fundamental error to instruct the jury on aggravated assault while discharging a

firearm resulting in great bodily injury, because the penalty for the offense was the

same as the penalty for attempted second-degree murder. The court denied his

petition on the ground that the instruction did not amount to fundamental error

because Chambers suffered no prejudice. Chambers v. State, 975 So.21d 444 (Fla.

2d Dist, Ct. App. 2007) (Chambers II). Chambers then moved the trial court

pursuant to Florida Rule of Criminal Procedure 3.850 to vacate his aggravated

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assault conviction on the ground that defense counsel was ineffective for failing to

object to the jury instruction on aggravated assault. The court denied his motion,

concluding that the effect of the District Court of Appeal’s holdings that

Chambers had not been “harmed by the unpreserved error” was that he had not

suffered Strickland prejudice. See Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). Chambers appealed the ruling, and the

District Court of Appeal affirmed per curiam. Chambers v. State, 905 So.2d 125

(Fla. 2d Dist. Ct. App. 2005).

      Having no success in the Florida courts, Chambers repaired to the federal

district court for relief under § 2254. The district court agreed with the Florida

courts that Chambers failed to establish Strickland prejudice and thus denied the

writ. We granted a certificate of appealability as to whether Chambers’s trial

counsel rendered ineffective assistance by failing to object to the inclusion of an

aggravated assault instruction in the court’s charge to the jury.

      In his brief, Chambers argues that the state habeas court unreasonably

applied Strickland when it determined that he was not prejudiced by his trial

counsel’s performance. Specifically, Chambers argues that if aggravated assault

was not listed on the jury verdict form, the jury would have, at most, selected

felony battery, the next lowest offense, because the jury did not select the lesser

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included offenses listed above aggravated assault.

      We review a district court’s denial of a habeas petition under 28 U.S.C.

§ 2254 de novo and its factual findings for clear error. Sims v. Singletary, 155

F.3d 1297, 1304 (11th Cir. 1998). A habeas petition based on ineffective

assistance of counsel presents a mixed question of law and fact that we review de

novo. Id. “Pro se pleadings are held to a less stringent standard than pleadings

drafted by attorneys and will, therefore, be liberally construed.” Boxer X v.

Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (quotation omitted).

      Under 28 U.S.C. § 2254(d), a federal court may not grant habeas relief on

claims that were previously adjudicated in state court, unless the state court’s

adjudication resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Supreme Court law, or resulted in

a decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the state court. 28 U.S.C. § 2254(d)(1)-(2).

      In Strickland, the Supreme Court set out a two-part inquiry for ineffective

assistance of counsel claims:

      First, the defendant must show that counsel’s performance was deficient.
      This requires showing that counsel made errors so serious that counsel
      was not functioning as the “counsel” guaranteed the defendant by the
      Sixth Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that

                                          5
      counsel’s errors were so serious as to deprive the defendant of a fair
      trial, a trial whose result is reliable.


466 U.S. at 687, 104 S.Ct. at 2064. A habeas petitioner claiming ineffective

assistance of counsel must succeed on both prongs of the Strickland test. Johnson

v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001). If the defendant makes an

insufficient showing on the prejudice prong, we need not address the performance

prong, and vice versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).

      A prisoner must establish prejudice in order to succeed on an ineffective

assistance claim, even if there was a structural error in the criminal proceedings.

Purvis v. Crosby, 451 F.3d 734, 743 (11th Cir. 2006). Prejudice 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. A reasonable probability is one sufficient to undermine confidence in the

outcome. Id. It is not enough for the defendant to show that the error had some

conceivable effect on the outcome of the proceeding. Id. at 693, 104 S.Ct. at

2067. He must show that the result would have been different. See id.

      The standard of review is “doubly deferential” when we evaluate a

Strickland claim is under the § 2254(d)(1) standard. Knowles v. Mirzayance, 556

U.S. 111, ___, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009). “The question is

                                           6
not whether a federal court believes the state court’s determination under the

Strickland standard was incorrect but whether that determination was

unreasonable—a substantially higher threshold.” Id. (quotation omitted).

      Here, Chambers has not shown that the District Court of Appeal’s denial of

his ineffective assistance claim based on the lack of prejudice was contrary to, or

an unreasonable application of, Strickland. In this case, the issue of prejudice

comes down to whether, absent the inclusion of aggravated assault on the verdict

form and in the jury instruction, the jury would have selected the lesser included

offense of aggravated battery, which contains the same statutory minimum

sentence as aggravated assault, or the offense of felony battery, which would have

resulted in a significantly lower sentence. The District Court of Appeal reasoned

that it was highly unlikely that a jury would have selected the next lesser offense

of felony battery, and concluded that, therefore, Chambers had not been prejudiced

under Strickland. Given the fact that it is arguable that the jury would have

selected aggravated battery or felony battery, the state court did not unreasonably

determine that the jury would have selected the higher offense of aggravated

battery. See Knowles, 556 U.S. at ___, 129 S.Ct. at 1420 (stating that the inquiry

is whether the state court’s Strickland determination was unreasonable). While

Chambers’s argument that the jury would have selected felony battery is plausible,

                                          7
Chambers cannot meet his burden by merely establishing that the error had some

conceivable effect on the outcome of the proceeding. See Strickland, 466 U.S. at

693, 104 S.Ct. at 2067. Accordingly, because the District Court of Appeal did not

unreasonably determine that Chambers failed to meet the prejudice prong of

Strickland, we affirm the denial of his § 2254 petition.

      AFFIRMED.




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