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                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 15-15650
                       Non-Argument Calendar
                     ________________________

                  D.C. Docket No. 1:14-cv-21137-UU




HUGO MARTINEZ,

                                                        Petitioner-Appellant,

                               versus

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

                                                     Respondents-Appellees.



                     ________________________

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

                           (August 10, 2018)
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Before MARTIN, JILL PRYOR, and EDMONDSON, Circuit Judges.



PER CURIAM:



      Hugo Martinez, a Florida prisoner convicted of second-degree murder,

appeals the district court’s denial of his 28 U.S.C. § 2254 petition for writ of

habeas corpus. Martinez contends that he received ineffective assistance of

counsel during his direct criminal appeal because his appellate lawyer failed to

argue that the trial court committed a fundamental error in its instructing the jury

about the lesser-included offense of manslaughter: the trial court included as an

offense element the need to show intent. No reversible error has been shown; we

affirm.

      The State of Florida charged Martinez with first-degree murder of Louis

Vasquez. Martinez proceeded to trial in October 2007. At trial, the state asserted

that Martinez shot Vasquez in connection with a botched drug deal. Martinez’s

chief defense was that he had been misidentified as the shooter. During his trial

testimony, Martinez denied expressly shooting Vasquez and named another person

as the gunman.

      The trial court instructed the jury on the lesser-included offenses of second-

degree murder and of manslaughter-by-act. About second-degree murder, the jury


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was instructed that “it is not necessary for the State to prove the defendant had an

intent to cause death.” About manslaughter, the court instructed the jury --

consistent with Florida’s then-standard 2006 jury instructions -- that the State had

to prove beyond a reasonable doubt that (1) Vasquez is dead and (2) Martinez

“intentionally caused the death of Louis Vasquez.” Martinez raised no objection to

the jury instructions. The jury found Martinez guilty of second-degree murder of

Vasquez, for which Martinez was sentenced to life imprisonment.

      Martinez appealed to the Florida Third District Court of Appeal (“Third

District”). On 2 May 2009, Martinez filed his initial brief in which he raised seven

grounds for appeal; Martinez raised no challenge to the jury instructions. On 31

March 2010, the Third District issued a per curiam affirmance without discussion.

Martinez v. State, 31 So. 3d 186 (Fla. Dist. Ct. App. 2010). The mandate issued on

16 April 2010.

      Martinez filed a state petition for a writ of habeas corpus on 4 March 2011.

In pertinent part, Martinez argued that his appellate counsel had rendered

ineffective assistance by failing to argue that the trial court’s manslaughter jury

instruction constituted fundamental error. Martinez noted that -- before his direct-

appeal lawyer filed the initial brief on appeal -- the First District Court of Appeals

(“First District”) issued its decision in Montgomery v. State, 70 So. 3d 603 (Fla.

Dist. Ct. App. 2009) (“Montgomery I”). In Montgomery I, a state-district appeals


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court concluded that Florida’s 2006 standard jury instruction added improperly an

intent element to the crime of manslaughter and that the addition constituted

fundamental error. Also, while Martinez’s direct appeal was pending, the Florida

Supreme Court certified a conflict between the state district courts of appeal

involving the manslaughter-by-act jury instruction.

      Then, on 8 April 2010 -- eight days before the mandate issued in Martinez’s

direct appeal -- the Florida Supreme Court issued its decision in State v.

Montgomery, 39 So. 3d 252 (Fla. 2010) (“Montgomery II”), concluding in that

case that the giving of Florida’s 2006 standard jury instruction on manslaughter

constituted fundamental error. Martinez contended that his appellate counsel,

however, did nothing to challenge the jury instruction based on Montgomery II.

      The Third District denied Martinez’s habeas petition without discussion. On

2 October 2012, Martinez filed a second state-court habeas petition, which was

again denied without discussion.

      In 2014, Martinez filed pro se his section 2254 petition at issue in this

appeal. The magistrate judge recommended that Martinez’s section 2254 petition

be denied. In particular, the magistrate judge determined that Martinez’s direct-

appeal lawyer could have determined reasonably that Martinez’s misidentification

defense prevented the manslaughter jury instruction from constituting fundamental




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error in his case. Over Martinez’s objections, the district court denied Martinez’s

section 2254 petition.

      We granted Martinez a certificate of appealability on this issue:

      Whether the state court unreasonably applied Strickland v.
      Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984),
      when it denied Martinez’s claim that his appellate counsel rendered
      ineffective assistance by failing to argue on appeal that, in light of
      State v. Montgomery, 39 So. 3d 252 (Fla. 2010), the manslaughter-by-
      act jury instruction given at Martinez’s trial was fundamental error.
      We review de novo the district court’s denial of a section 2254 habeas

petition. Rambaran v. Sec’y, Dep’t of Corr., 821 F.3d 1325, 1330 (11th Cir. 2016).

We review questions of law and mixed questions of law and fact de novo and

review factual findings for clear error. Id.

      A federal court may grant habeas relief on claims adjudicated previously on

the merits in state court only if the state court’s adjudication resulted in a decision

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

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

or (2) “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). Where --

as in this case -- a state court denies summarily a habeas petition without

discussion, we presume the denial is an adjudication on the merits entitled to

deference under section 2254. See Wilson v. Warden, Ga. Diagnostic Prison, 834



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F.3d 1227, 1235 (11th Cir. 2016) (en banc). The petitioner bears the burden of

showing that no reasonable basis exists for denying relief. Id.

      To prevail on a claim of ineffective assistance of appellate counsel, a section

2254 petitioner must show that (1) his appellate lawyer’s performance “fell below

an objective standard of reasonableness,” and (2) “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Brooks v. Comm’r, 719 F.3d 1292, 1300 (11th Cir. 2013) (citing

Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984)). There is a “strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland, 104 S. Ct. at 2065.

      When the deferential standard for judging appellate counsel’s performance is

“combined with the extra layer of deference that § 2254 provides, the result is

double deference and the question becomes whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.” Evans v. Sec’y,

Fla. Dep’t of Corr., 699 F.3d 1249, 1268 (11th Cir. 2012) (quotations omitted).

“Double deference is doubly difficult for a petitioner to overcome, and it will be a

rare case in which an ineffective assistance of counsel claim that was denied on the

merits in state court is found to merit relief in a federal habeas proceeding.” Id.

      Applying the deferential standards under section 2254 and Strickland, we

must determine whether the state habeas court acted “contrary to” clearly


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established law when it rejected Martinez’s argument that his appellate lawyer’s

failure -- given the circumstances -- to challenge the issuance of the 2006

manslaughter jury instruction constituted ineffective assistance.

      We addressed a similar question in Rambaran v Sec’y, Dep’t of Corr., 821

F.3d 1325, 1333 (11th Cir. 2016), and concluded that appellate counsel was not

ineffective for failing to raise a challenge to the 2006 standard manslaughter jury

instruction. The facts in Rambaran are similar to those presented in this appeal: (1)

Rambaran was found guilty of second-degree murder after the trial court issued the

then-standard 2006 jury instruction on manslaughter; (2) before Rambaran filed his

initial brief on direct appeal, the First District invalidated the 2006 jury instruction

in Montgomery I, and the Florida Supreme Court accepted jurisdiction to review

Montgomery I; (3) Rambaran’s lawyer raised no challenge to the manslaughter

jury instructions on direct appeal; (4) the Florida Supreme Court decided

Montgomery II after Rambaran’s convictions were affirmed, but before the

mandate issued; (5) Rambaran’s lawyer filed no supplemental brief and filed no

motion to recall the mandate in the light of Montgomery II.

      In Rambaran, we reversed the district court’s grant of relief under section

2254. We concluded that, when Rambaran’s lawyer filed the initial and reply

briefs on direct appeal, “the law was at best unsettled.” Rambaran, 821 F.3d at

1334. And “reasonably effective representation cannot and does not include a


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[r]equirement to make arguments based on predictions of how the law may

develop.” Id. We also concluded that counsel’s failure to file a motion to recall

the mandate in the light of Montgomery II was not deficient because appellate

counsel could have concluded reasonably that Rambaran’s case was

distinguishable from Montgomery II. Id. In particular, the jury in Rambaran’s

case had also been instructed on manslaughter-by-culpable-negligence: an

instruction not given in Montgomery II. Id. Because the law was unsettled and

because no holding of the Supreme Court clearly established that appellate counsel

performed ineffectively by failing to anticipate a later change in the law, we

concluded that the state habeas court acted reasonably in denying Rambaran

habeas relief.

      We see no meaningful distinction between the important circumstances of

this case and the circumstances in Rambaran. Because the law was unsettled at the

operative times in Martinez’s case -- as it was in Rambaran -- we conclude that the

state habeas court’s ruling denying Martinez habeas relief was not contrary to, or

an unreasonable application of, clearly-established federal law.

      That Martinez’s case involved no manslaughter-by-culpable-negligence

instruction does not make Rambaran’s guidance inapplicable here. The lawyer in

Rambaran could have believed reasonably that his case was significantly different

from Montgomery II and that a Montgomery II challenge was unavailable based on


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the issuance of the manslaughter-by-culpable-negligence instruction. We are

persuaded that Martinez’s lawyer would have had reasonable grounds to believe

that Martinez’s case was significantly different from Montgomery II and to believe

that a Montgomery II challenge was unavailable, given Martinez’s I-didn’t-do-it

misidentification defense.

      Under then-existing Florida law, an erroneous jury instruction constituted

fundamental error only when the error “is pertinent or material to what the jury

must consider in order to convict.” State v. Delva, 575 So. 2d 643, 645 (Fla.

1991). A dispute must exist in the record on the point to be covered by the

challenged instructions. Moreover, the Florida Supreme Court had concluded, for

elements of an offense, that “a dispute does not arise when mistaken identity is the

sole defense and the facts of the crime are conceded by the defendant.” Battle v.

State, 911 So. 2d 85, 89 (Fla. 2005) (concluding that a failure to instruct the jury

on an essential element of the offense constituted no fundamental error when that

element was not in dispute because the defendant only raised a defense of mistaken

identity). In the light of the then-existing Florida law and the United States

Supreme Court’s decisions, we cannot say that Martinez’s appellate lawyer

performed outside the “wide range of reasonable professional assistance” in failing

to challenge the jury instruction based on Montgomery II.




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      The district court committed no error by determining that the state court

applied reasonably the Strickland standard in determining that Martinez’s appellate

counsel was not ineffective for failing to raise a Montgomery II argument on direct

appeal.

      AFFIRMED.




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