           Case: 17-13998   Date Filed: 04/10/2019   Page: 1 of 12


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13998
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:16-cv-22100-FAM



SANTOS CORALES-CARRANZA,

                                                         Petitioner - Appellant,

                                  versus

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

                                                     Respondents - Appellees.

                       ________________________

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

                              (April 10, 2019)

Before WILSON, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM:
              Case: 17-13998     Date Filed: 04/10/2019    Page: 2 of 12


      Santos Corales-Carranza, a Florida inmate, appeals pro se the district court’s

denial of his 28 U.S.C. § 2254 federal habeas petition. Corales-Carranza was

convicted of second-degree murder and sentenced to 40 years in prison. Following

unsuccessful challenges to his convictions on direct appeal and in collateral

proceedings in the Florida state courts, Corales-Carranza filed a federal habeas

petition in the United States District Court for the Southern District of Florida,

raising claims of ineffective assistance of trial and appellate counsel. The district

court denied Corales-Carranza’s petition with prejudice and denied him a

certificate of appealability. On appeal, Corales-Carranza’s motion for a certificate

of appealability was granted on his ineffective assistance of appellate counsel

claim. Specifically, a certificate of appealability was granted on the following

question: “Whether the District Court erred in its resolution of Mr. Corales-

Carranza’s ineffective assistance of appellate counsel claim, with respect to

counsel’s failure to supplement his appeal after the issuance of State v.

Montgomery, 39 So. 3d 252 (Fla. 2010).” 11th Cir. Doc. 14 at 3.

      We affirm the district court’s denial of Corales-Carranza’s § 2254 petition as

to the sole claim he is authorized to raise on appeal. We conclude that Corales-

Carranza has failed to show that the Florida state habeas court unreasonably

applied Strickland v. Washington, 466 U.S. 668 (1984), in determining that his




                                           2
                 Case: 17-13998       Date Filed: 04/10/2019        Page: 3 of 12


appellate counsel’s performance was not ineffective. Therefore, Corales-Carranza

cannot demonstrate a meritorious claim of ineffective assistance of counsel.

                                     I.      BACKGROUND

      The State of Florida charged Corales-Carranza by information with the

second-degree murder of Carlos Hernandez, pursuant to Fla. Stat. § 782.04(2). At

trial, the State argued that Corales-Carranza murdered the victim by brutally

stabbing and beating him. During his trial testimony, Corales-Carranza conceded

that the victim had been murdered but asserted in his defense that he had not

committed the crime.

      The trial court instructed the jury on second-degree murder and the lesser-

included offense of manslaughter-by-act. As to second-degree murder, the court

instructed the jury that “[i]n order to convict of second-degree murder it is not

necessary for the [S]tate to prove the defendant had intent to cause death.” Doc.

13-6 at 93. 1 As to manslaughter, the court read to the jury Florida’s 2006 standard

manslaughter-by-act jury instruction, which provided that the State had to prove

beyond a reasonable doubt that (1) Carlos Hernandez was dead and (2) “Santos

Corales-Carranza intentionally caused the death of Carlos Hernandez.” Id. The

jury found Corales-Carranza guilty of second-degree murder; he was sentenced to

40 years’ imprisonment.


      1
          “Doc #” refers to the numbered entries on the district court’s docket.
                                                 3
              Case: 17-13998     Date Filed: 04/10/2019    Page: 4 of 12


      Corales-Carranza directly appealed his sentence to the Florida Third District

Court of Appeal, arguing that the trial court had erred by failing to instruct the jury

on manslaughter-by-culpable-negligence as a freestanding, lesser-included offense,

or as part of the manslaughter instruction. Corales-Carranza filed his appellate

brief in December 2009. While his appeal remained pending, the Florida Supreme

Court held in State v. Montgomery, 39 So. 3d 252 (Fla. 2010), that the use of

Florida’s 2006 standard manslaughter-by-act jury instruction constituted

fundamental error when manslaughter was a lesser-included offense of second-

degree murder because the instruction erroneously required the jury to find that the

defendant intended to cause the victim’s death. 39 So. 3d at 259-60. Corales-

Carranza’s appellate counsel filed no supplemental brief challenging in light of

Montgomery the use of the 2006 standard manslaughter-by-act jury instruction.

The Third District Court of Appeal affirmed Corales-Carranza’s conviction and

sentence in July 2010. See Corales-Carranza v. State, 41 So. 3d 226 (Fla. Dist. Ct.

App. 2010).

      Proceeding pro se, Corales-Carranza filed a petition for writ of habeas

corpus in the Third District Court of Appeal, pursuant to Florida Rule of Appellate

Procedure 9.141(c), based on his appellate counsel’s failure to argue on direct

appeal that the use at his trial of Florida’s 2006 standard manslaughter-by-act jury

instruction constituted fundamental error. The Third District Court of appeal


                                           4
              Case: 17-13998     Date Filed: 04/10/2019    Page: 5 of 12


summarily denied the petition. See Corales-Carranza v. State, 49 So. 3d 1277

(Fla. Dist. Ct. App. 2010). Corales-Carranza then filed a motion for post-

conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 in state

court, again proceeding pro se. The court denied the motion with prejudice. The

Third District Court of Appeal summarily affirmed. See Corales-Carranza v.

State, 190 So. 3d 643 (Fla. Dist. Ct. App. 2016).

      Corales-Carranza filed a § 2254 petition in the United States District Court

for the Southern District of Florida. In this petition, he alleged at least two grounds

for habeas relief, including a claim that his appellate counsel was ineffective for

failing to argue on direct appeal that the use of the 2006 standard manslaughter-by-

act instruction was fundamental error. A magistrate judge recommended that the

district court deny Corales-Carranza’s petition and deny him a certificate of

appealability. As to the ineffective assistance of appellate counsel claim, the

magistrate judge concluded that Corales-Carranza had failed to show that the state

court unreasonably applied Strickland. Lacking any objection, the district court

adopted the magistrate judge’s recommendation, denied Corales-Carranza’s

petition, and denied him a certificate of appealability.

      Corales-Carranza was granted a certificate of appealability only on his

ineffective assistance of counsel claim based on his appellate counsel’s failure to

supplement his appeal after the Florida Supreme Court issued Montgomery.


                                           5
                Case: 17-13998       Date Filed: 04/10/2019        Page: 6 of 12


                            II.     STANDARD OF REVIEW

       We review the denial of a § 2254 habeas petition de novo and factual

findings for clear error. Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998).

“An ineffective assistance of counsel claim is a mixed question of law and fact

which we review de novo.” Id.

                                    III.    DISCUSSION

       On appeal, Corales-Carranza argues that his appellate counsel performed

deficiently because counsel failed to supplement Corales-Carranza’s appeal with

an argument based on Montgomery. According to Corales-Carranza, he was

prejudiced by this deficient performance because had counsel supplemented his

appeal, he would have been placed in the Montgomery “pipeline.” 2 Appellant’s

Br. at 21. He thus argues that he is entitled to relief because the state habeas

court’s ruling on this issue was “contrary to, or involved an unreasonable

application of” Strickland. See 28 U.S.C. § 2254(d)(1). The State responds that

Corales-Carranza is entitled to no relief because he cannot show Strickland

prejudice when, at the time of his appeal, no Florida District Court of Appeal

decision had held that the use of the 2006 standard manslaughter-by-act jury



       2
          As we have described it in another opinion, “[t]he Florida ‘pipeline’ theory is one under
which certain decisions announcing a new rule of law are applied retrospectively to all appellants
whose appeals are not final at the time the new rule is announced.” Rambaran v. Sec’y, Dep’t of
Corr., 821 F.3d 1325, 1330 n.5 (11th Cir. 2016) (citing Mitchell v. Moore, 786 So. 2d 521, 530
n.8 (Fla. 2001)).
                                                6
              Case: 17-13998        Date Filed: 04/10/2019   Page: 7 of 12


instruction constituted fundamental error when, as in Corales-Carranza’s case,

intent was not disputed at trial.

      A state inmate may petition a federal court for habeas relief “only on the

ground that he is in custody in violation of the Constitution or laws or treaties of

the United States.” 28 U.S.C. § 2254(a). Under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), a federal court is generally barred from

granting habeas relief to a petitioner in state custody on a claim that the state court

adjudicated on the merits unless the state court’s ruling (1) “was contrary to, or

involved an unreasonable application of, clearly established [f]ederal law, as

determined by the Supreme Court,” or (2) “was based on an unreasonable

determination of the facts in light of the evidence presented in the [s]tate court

proceeding.” Id. § 2254(d)(l)-(2). When, as here, a state court summarily denies a

habeas claim, see Corales-Carranza v. State, 49 So. 3d 1277 (Fla. Dist. Ct. App.

2010), the denial is considered an adjudication on the merits for § 2254(d)(1)

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

2002).

      “‘Clearly established’ in § 2254(d)(1) refers to the holdings, as opposed to

the dicta, of the Supreme Court’s cases at the time of the relevant state court

decision.” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1258 (11th Cir.

2016) (second internal quotation marks omitted). “‘Contrary to’ means the state


                                             7
              Case: 17-13998     Date Filed: 04/10/2019    Page: 8 of 12


court applied a rule different from the governing law set forth in Supreme Court

cases, or it decided a case differently than the Supreme Court has done on a set of

materially indistinguishable facts.” Id. at 1258-59 (alterations adopted) (second

internal quotation marks omitted). “An ‘unreasonable application’ under

§ 2254(d)(1) occurs when a state court decision (1) identifies the correct governing

legal rule from the Supreme Court’s cases but unreasonably applies it to the facts

of the particular state prisoner’s case, or (2) either unreasonably extends a legal

principle from Supreme Court precedent to a new context where it should not

apply or unreasonably refuses to extend that principle to a new context where it

should apply.” Id. at 1259 (alterations adopted) (second and third internal

quotation marks omitted). “The ‘unreasonable application’ inquiry asks whether

the state court’s application of clearly established federal law was objectively

unreasonable, which requires the state court decision to be more than incorrect or

erroneous.” Id. at 1259 (alterations adopted) (second and third internal quotation

marks omitted) (citation omitted). In sum, “AEDPA erects a formidable barrier to

federal habeas relief for prisoners whose claims have been adjudicated in state

court.” Id. at 1260 (internal quotation marks omitted).

      An ineffective assistance of appellate counsel claim is “governed by the

same standards applied to trial counsel under Strickland.” Brooks v. Comm’r, Ala.

Dep’t of Corr., 719 F.3d 1292, 1300 (11th Cir. 2013) (internal quotation marks


                                           8
              Case: 17-13998     Date Filed: 04/10/2019    Page: 9 of 12


omitted). To show a meritorious Sixth Amendment claim of ineffective assistance

of appellate counsel, a petitioner must demonstrate (1) deficient performance,

indicating that the attorney failed to function as required by the Sixth Amendment;

and (2) that counsel’s deficient performance prejudiced the petitioner. Strickland,

466 U.S. at 687.

      “Under the first prong, [the petitioner] must show that his direct appellate

counsel’s performance ‘fell below an objective standard of reasonableness.’”

Brooks, 719 F.3d at 1300 (quoting Strickland, 466 U.S. at 688). There exists “a

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

reasonable professional assistance.” Strickland, 466 U.S. at 689. Further,

“[a]ppellate counsel has no duty to raise every non-frivolous issue and may

reasonably weed out weaker (albeit meritorious) arguments.” Overstreet v.

Warden, 811 F.3d 1283, 1287 (11th Cir. 2016). “Under Strickland’s second prong,

[the petitioner] must show that there ‘is a reasonable probability that, but for

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

different.’” Brooks, 719 F.3d at 1300 (quoting Strickland, 466 U.S. at 694). “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. (internal quotation marks omitted). “‘The standards created by

Strickland and § 2254(d) are both highly deferential, and when the two apply in

tandem, review is doubly so.’” Overstreet, 811 F.3d at 1287 (quoting Harrington


                                           9
             Case: 17-13998    Date Filed: 04/10/2019   Page: 10 of 12


v. Richter, 562 U.S. 86, 105 (2011)). Under this “double deference,” then, “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) (internal quotation marks omitted).

      Applying this double deference required by § 2254 and Strickland, we must

determine whether the Florida state habeas court acted “contrary to” or

unreasonably applied clearly established law when that court rejected Corales-

Carranza’s argument that his appellate counsel’s failure to supplement his direct

appeal with an argument based on Montgomery amounted to ineffective assistance.

      Here, with regard to the deficient performance prong of Strickland, a

competent attorney reasonably might have concluded that the use of the 2006

manslaughter-by-act jury instruction failed to constitute fundamental error in

Corales-Carranza’s case. By the time Corales-Carranza brought his appeal, the

Florida Supreme Court had made clear that the use of a jury instruction containing

an inaccurately defined element constitutes fundamental error only when the

inaccurately defined element is disputed. Reed v. State, 837 So. 2d 366, 369 (Fla.

2002). Further, at the time of Corales-Carranza’s appeal, the Florida Supreme

Court had held that “a dispute [as to an element of an offense] 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). Corales-Carranza


                                         10
               Case: 17-13998        Date Filed: 04/10/2019       Page: 11 of 12


conceded in his testimony that the victim had been murdered but raised a

misidentification defense by claiming that someone else had committed the crime.

Appellate counsel reasonably might have concluded that Corales-Carranza thus

failed to dispute intent at trial and that the use of the manslaughter-by-act jury

instruction, which erroneously stated the requisite intent, constituted no

fundamental error. Accordingly, counsel reasonably might have concluded that

Montgomery would afford Corales-Carranza no relief. We cannot conclude, then,

that the state court, in denying Corales-Carranza’s ineffective assistance of

appellate counsel claim, unreasonably applied Strickland. 3 Cf. Harrington, 562

U.S. at 105 (“When § 2254(d) applies, the question is not whether counsel’s

actions were reasonable. The question is whether there is any reasonable argument

that counsel satisfied Strickland’s deferential standard.”).

       We recognize that the Florida Supreme Court clarified in 2015 that “a sole

defense of misidentification does not concede or fail to place in dispute intent or

any other element of the crime charged except identity when the offense charged is

an unlawful homicide.” Griffin v. State, 160 So. 3d 63, 67 (Fla. 2015). But as

precedent instructs, in assessing whether counsel provided ineffective assistance,

this Court “must avoid the ‘distorting effects of hindsight’ by viewing the


       3
          We do not discuss the prejudice prong of the Strickland analysis because “[f]ailure to
make the required showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim.” Strickland, 466 U.S. at 700.
                                                11
              Case: 17-13998    Date Filed: 04/10/2019   Page: 12 of 12


performance as it appeared to counsel at the time.” Bolender v. Singletary, 16 F.3d

1547, 1557 (11th Cir. 1994) (quoting Strickland, 466 U.S. at 689). We therefore

lack the benefit of Griffin in assessing whether the state court unreasonably applied

Strickland.

                               IV.   CONCLUSION

      For the foregoing reasons, we affirm the district court’s denial of Corales-

Carranza’s habeas petition.

      AFFIRMED.




                                         12
