             Case: 13-11318      Date Filed: 03/12/2014    Page: 1 of 11


                                                                [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-11318
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 6:12-cv-01397-GKS-KRS


GILBERT HARRIS, JR.,

                                                                Petitioner-Appellant,

                                        versus

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

                                                             Respondents-Appellees.

                           ________________________

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

                                  (March 12, 2014)

Before MARCUS, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Gilbert Harris Jr., a Florida prisoner, appeals pro se the denial of his petition

for a writ of habeas corpus. 28 U.S.C. § 2254. Harris argued that trial counsel was
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ineffective for failing to object when the trial court denied the jury’s request for a

transcript of a witness’s testimony because that ruling led the jury to believe that it

was impermissible to recite that testimony. Because it was not an unreasonable

application of clearly established federal law for the Florida courts to conclude that

Harris failed to establish that his counsel acted deficiently or that he was

prejudiced by counsel’s conduct, we affirm.

                                 I. BACKGROUND

      Harris proceeded to trial on charges of armed sexual battery and false

imprisonment. Before voir dire, the trial court introduced the court reporter. The

district court explained that the reporter was “making a record of everything that’s

being said in the courtroom” and could “later, upon request, make a written version

of her notes so anybody can read what was said during trial.”

      At trial, the victim, Harris’s wife, Janelle Harris, testified that, while she was

separated briefly from Harris, he sexually abused and restrained her. Janelle

testified that, about a year earlier, she was living in her mother’s house, but

returned to the family home to spend the night. The next morning, Harris forced

his way into the house wielding a knife that they routinely left on the front porch to

open the door. Harris told Janelle repeatedly to hush as he pushed her onto a bed,

told her that he was going to rape and kill her, and placed duct tape over her

mouth. When Harris tried to tape Janelle’s wrists to the frame of the bed, she

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resisted and grabbed the knife. Harris began to strangle Janelle, who managed to

bite Harris’s arm, and he bit her in return. The couple tumbled onto the floor, and

then Harris raped Janelle.

      As he was leaving, Harris warned Janelle not to tell anyone about the

incident and not to appear for a court date, and he instructed her to tell her male

“friend” that “it was over.” Harris said that he was watching Janelle, she would

not be harmed if she followed his instructions, and he would return in a week to

“be a family.” After Harris left, Janelle “laid . . . on the floor for a while and

cried.”

      Janelle eventually cleaned her body, got dressed, and drove to the police

station, where she reported the incident. Janelle identified photographs taken of

bruises and bite marks on her body, but she explained that some of her injuries had

been inflicted a week earlier. On cross-examination, Janelle stated that she had not

been raped and had acquiesced to Harris’s request to have sex.

      Harris called Janelle’s mother, Mary Lovett, as a witness in his defense.

Lovett testified that, on the morning of the incident, she visited the Harris home

around 8:30 a.m. to obtain some clothes for her grandsons to wear to church; she

was surprised to see Harris’s car parked in the driveway; and she entered the house

to find Janelle sleeping peacefully in her room. Lovett returned to the house a little

before 11:00 a.m. and met Janelle as she was walking out the front door. Janelle,

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without explanation, asked her mother to keep the boys. Lovett could not

remember if Janelle had been upset, but after Lovett had her memory refreshed

with her statement to the police, she recalled that Janelle appeared to have been

crying as she left the house. Lovett acknowledged that she did not want anything

to happen to Harris.

      Harris admitted that he had assaulted Janelle. He testified that he entered

their home with his key, woke Janelle, and “coerced her, pretty much, . . . to have

sex.” Later in the morning, he allowed Lovett to enter the home and retrieve

clothes for the boys, and the situation remained peaceful until Janelle received a

telephone call and would not identify the caller. A fight ensued and, after Janelle

admitted to talking to another man, Harris began to choke Janelle. According to

Harris, Janelle retrieved a knife from under her pillow, tried to stab Harris, and

then bit him. Harris admitted that he taped Janelle’s mouth and one of her arms

and then warned her not to call the police before he left the house.

      During deliberations, the jury sent a note to the trial court that asked,

“Mother and in-law’s testimony, can we see, please?” The trial court interpreted

the note as requesting either the “transcript of the testimony, which [it was] not

going to permit” because “[w]e can’t type” it, or the written statement that Lovett

provided to the police, which was inadmissible and could not be considered by the

jury. The prosecutor and the trial court agreed that the jury should rely on their

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recollection of the testimony. Harris agreed with the decision, “assuming that [the

trial court did not] want to read back her testimony,” and the trial court responded,

“No, we’re not going to do that.”

       After the jury returned to the courtroom, the trial court told the jury that the

court reporter could not produce a written transcript and that they should rely on

their recollection of the testimony:

              If you’re asking to have the oral testimony transcribed by the
       court reporter to be read back in there, the answer would be no
       because it would be time consuming and not possible to have her type
       that up that quickly. So that answers that part of it.

             If you’re asking to see those handwritten things that were used
       during the trial, the answer is no, because they’re not in evidence.
       And so that answers your question.

             So you will have to rely on your collective memory, if you will,
       as to the testimony you’ve hear from the witness stand and the
       evidence that’s back there in the room with you. I know you may be
       disappointed, but, again, that’s the law. Thank you very much,
       though. Any other questions, we’ll be glad to try to answer them.

       After the jury resumed its deliberations, the trial court mentioned that it

intended to revise its initial instructions to the jury.

              I think they wanted me to — when I said that, they pointed at
       her. One of them went like that (indicating) to the court reporter. So I
       think I’m going to change my initial instruction. When I introduce all
       the people, I make the mistake, I think, of telling them that the court
       reporter can type it up and read it back to us, if needed, which I never
       do it.



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       The jury found Harris guilty of the lesser-included offense of sexual battery

and false imprisonment, and Harris received a sentence of 12 years for sexual

battery and a sentence of five years for false imprisonment. Harris appealed and

argued that the trial court lacked jurisdiction because the affidavit supporting his

arrest warrant and the charging document was defective. The Fifth District Court

of Appeal affirmed summarily. Harris v. State, 15 So. 3d 596 (Fla. Dist. Ct. App.

2009).

       Harris filed pro se a motion for post-conviction relief in which he raised two

claims of ineffective assistance of counsel. See Fla. R. Crim. P. 3.850. Relevant

to this appeal, Harris argued that trial counsel was ineffective for failing to object

when the trial court denied the jury’s request for a transcript of Lovett’s testimony.

Harris contended that the response of the trial court to the jury’s question and its

remark that it “never” provided a transcript to a jury caused it to believe that it was

not entitled to have testimony read back. Harris argued that he was prejudiced

because a recitation of the testimony might have led the jury to acquit him and

because, had the issue been preserved for appellate review, he would have been

entitled to a new trial.

       A Florida court denied Harris’s motion. The state court applied the standard

for reviewing claims of ineffective assistance provided in Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and ruled that counsel had not

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deficiently in failing to object because “the trial judge had broad discretion to deny

the read-back during jury deliberations”; the judge’s remark about never providing

a transcript was not communicated to and could not have misled the jury; and the

judge’s remarks “[did] not indicate that the read-back [was] being denied because

it [was] prohibited.” The state court also ruled that Harris could not “establish

prejudice where Counsel failed to object to the denial of the read-back in order to

preserve it for appellate review” and when Harris “failed to indicate how” reading

the “testimony would have assisted the jury in finding him not guilty.” The Fifth

Circuit affirmed summarily. Harris v. State, 94 So. 3d 607 (Fla. Dist. Ct. App.

2012).

      Harris filed a federal petition for a writ of habeas corpus and repeated his

claim of ineffective assistance of counsel. The district court denied the writ and

“defer[red] to the . . . conclusion [of the state court] that [Harris] could not

establish prejudice at trial where counsel failed to object to the denial of the read-

back.” The district court noted that counsel “may have been deficient for failing to

object to the [trial] court’s summary denial of the jury’s request” because decisions

of the Florida courts issued after Harris’s trial “expressly prohibited the [trial]

court’s refusal to consider a read back,” but the district court found it “unnecessary

. . . to decide whether [those decisions] . . . [could] be retroactively applied to make

a determination that counsel performed deficiently.”

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                          II. STANDARD OF REVIEW

      We review de novo the denial of a petition for a writ of habeas corpus that

alleges ineffective assistance of counsel. Johnson v. Sec’y, DOC, 643 F.3d 907,

929 (11th Cir. 2011). A petitioner is entitled to a writ of habeas corpus only if the

state court reached a decision that was “contrary to, or involved an unreasonable

application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state

court makes an “unreasonable application” of clearly established federal law only

if the court “ ‘identifies the correct governing legal principle from [the] decisions

[of the Supreme Court] but unreasonably applies that principle to the facts’ of

petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct. 2527, 2534–35

(2003) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495, 1523

(2000)). To prevail on an argument involving an unreasonable application of

federal law, a petitioner “must show that the state court’s ruling on the claim being

presented in federal court was so lacking in justification that there was an error

well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770,

786–87 (2011).

                                 III. DISCUSSION

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      Harris must “[s]urmount[] [a particularly] high bar” to obtain a writ of

habeas corpus based on ineffective assistance of counsel. Padilla v. Kentucky, 559

U.S. 356, 371, 130 S. Ct. 1473, 1485 (2010). Harris must not only prove that his

counsel committed an error and that error was “so serious as to deprive [him] of a

fair trial,” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, but he also must

overcome the “doubly deferential” standard applied to the decisions of counsel in

habeas corpus review. Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S. Ct.

1411, 1420 (2009). We are required to determine “not whether counsel’s actions

were reasonable[,]” but instead “whether there [was] any reasonable argument that

counsel satisfied Strickland’s deferential standard.” Harrington, 131 S. Ct. at 788.

      Harris’s claim of ineffective assistance fails. Harris argued that counsel was

ineffective for failing to object when the trial court denied the jury’s request for a

transcript and counsel’s request to instruct the jury that it could request a read-

back. The Florida courts reasonably concluded that Harris’s counsel would

conclude that an objection would fail “in [the] light of information then available

to counsel.” Premo v. Moore, 562 U.S. at ____, 131 S. Ct. 733, 741 (2011); see

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (“A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.”). At the time of

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Harris’s trial, trial courts exercised broad discretion in determining whether to read

back a witness’s testimony to the jury. See Frasilus v. State, 46 So. 3d 1028, 1029

(Fla. Dist. Ct. App. 2010); see also In re Amends. to the Fla. Rules of Civil Proc.,

967 So. 2d 178, 183 (Fla. 2007) (providing standard instructions for trial courts to

either grant, defer, or deny a jury’s request to have testimony read back). “In fact,

the Florida Supreme Court [had] observed that ‘courts [had] found no abuse of

discretion even where the trial judge [had], without much consideration, entirely

rejected the jury’s request for a read back.’ ” Frasilus, 46 So. 3d at 1029 (quoting

Francis v. State, 808 So. 2d 110, 130 (Fla. 2001)). Although the Second District

Court of Appeals had held years earlier that a failure to advise a jury of the right to

have testimony read back to them had been fundamental error, LaMonte v. State,

145 So. 2d 889, 892–93 (Fla. Dist. Ct. App. 1962), that decision had been based on

a statute that made a read-back mandatory, and that statute had since been repealed

and replaced with a rule that “eliminate[d] the mandatory language” and gave trial

courts discretion whether to read back testimony, Frasilus, 46 So. 3d at 1031–32.

      Moreover, the Florida courts reasonably concluded that Harris was not

prejudiced. As explained by the state court, Harris “failed to indicate how he was

actually prejudiced” by counsel’s conduct. Lovett’s testimony was not such

powerful evidence in support of Harris’s defense that it was unreasonable for the

state court to conclude that the jury would not have acquitted Harris even had the

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testimony had been read back, particularly in the light of Harris’s admissions that

he “coerced” his wife into having sex with him and he bound her so she would not

report the incident to the police. The state court reasonably determined that Harris

failed to establish that his counsel was ineffective.

                                IV. CONCLUSION

      We AFFIRM the denial of Harris’s petition for a writ of habeas corpus.




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