                                                                  [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________
                                                                            FILED
                                                                   U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                     No. 04-13059
                                                                         June 16, 2005
                               ________________________
                                                                       THOMAS K. KAHN
                                                                           CLERK
                        D. C. Docket No. 99-00889-CV-J-25-TJC

HAROLD B. CLARK,

                                                                         Petitioner-Appellee,
                                            versus

JAMES CROSBY,
CHARLIE CRIST,
Florida Attorney General,

                                                                   Respondents-Appellants.

                               ________________________

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

                                      (June 16, 2005)

Before BLACK and HULL, Circuit Judges, and HODGES *, District Judge.

PER CURIAM:




       *
         Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
      The district court granted Harold Clark’s 28 U.S.C. § 2254 petition,

concluding the state court’s adjudication of Clark’s ineffective assistance of

appellate counsel claim was an unreasonable application of Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). The State filed this appeal.

We affirm.

      Clark was charged in state court with breaking into the dwelling of his

former girlfriend, and attempting to kill her by cutting her throat while she slept.

During closing arguments at trial, the State told the jury that in order to prove

Clark guilty of attempted first-degree murder, the State could show either

premeditation or that the act of cutting the victim’s throat was done in the course of

another felony. The jury found Clark guilty of attempted first-degree murder and

burglary.

      After Clark’s conviction, the Florida Supreme Court decided State v. Gray,

654 So. 2d 552 (Fla. 1995), receding from a prior decision and holding attempted

felony murder was not a crime in Florida. Id. at 554. In Gray, the Court stated its

decision should be applied to all cases pending on direct appeal. Id. At the time

the Gray decision was rendered, Clark’s direct appeal was pending, but briefing

had been completed. Clark’s attorney did not raise an argument based on Gray.

On May 23, 1995, the state appellate court affirmed Clark’s conviction.



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      In September 1995, Clark filed a petition for writ of habeas corpus in state

court, arguing, inter alia, that his appellate counsel was ineffective for failing to

raise an argument based on the Gray holding that attempted felony murder is not a

crime in Florida. The state court summarily denied Clark’s petition.

      Clark then filed a motion for post-conviction relief, pursuant to Florida Rule

of Criminal Procedure 3.850. After an evidentiary hearing, the state court denied

Clark’s Rule 3.850 motion. The court noted that Clark’s ineffective-assistance

claim was cognizable only in the habeas corpus proceeding before the court that

decided Clark’s direct appeal. The denial of Rule 3.850 relief was affirmed on

appeal.

          Clark, initially proceeding pro se, filed this § 2254 petition arguing,

inter alia, that: (1) his conviction was obtained by use of a non-existent crime

under Florida law (attempted first-degree felony murder); and (2) he was denied

effective assistance of appellate counsel based on his appellate attorney’s failure to

argue he was convicted of a non-existent crime. The district court denied Clark’s

petition. On the ineffective assistance of appellate counsel claim, the district court

concluded Clark’s appellate counsel’s performance was not deficient. The district

court did not address the Strickland prejudice prong.




                                              3
      On appeal, we appointed counsel. We vacated the district court’s judgment

on the ineffective assistance of counsel claim. See Clark v. Crosby, 335 F.3d 1303,

1313 (11th Cir. 2003), cert. denied, 540 U.S. 1155, 124 S. Ct. 1159 (2004). We

remanded the case, stating: “Without an evidentiary hearing, the record in this

case does not support a finding regarding th[e] constitutional adequacy of Clark’s

appellate counsel’s performance.” Id. at 1312.

      On remand, the district court conducted an evidentiary hearing and entered a

very thorough opinion granting Clark’s petition with respect to his ineffective

assistance of appellate counsel claim. The State appealed.

      We heard oral argument on the State’s appeal. After hearing oral argument

and reviewing the briefs and the record in this case, we hold there was no

reversible error and affirm.

      AFFIRMED.




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