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                                                           [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-15414
                          Non-Argument Calendar
                        ________________________

                 D.C. Docket No. 8:11-cv-01363-JSM-AEP



ALTON E. PACE,


                                                            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
                       ________________________

                             (January 16, 2014)
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Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      Alton Pace is a Florida state prisoner who pled guilty to multiple violent

felonies, including attempted murder of his common-law wife and aggravated

assault with a firearm of another victim. This appeal involves only Pace’s

sentence. The statutory maximum for Pace’s attempted murder and aggravated

assault crimes was life. The high end of Florida’s sentencing guidelines range was

16 years and 9 months for Pace’s crimes. The government requested a thirty-year

sentence. Pace argued for a ten-year sentence, and the state court imposed a

twenty-year sentence.

      Pace appeals the district court’s denial of his 28 U.S.C. § 2254 habeas

corpus petition. He asserts that his trial counsel was constitutionally ineffective at

his sentencing for failing to object to unsworn statements made by the victim wife

and others. Pace argues that without these statements, the state court would have

imposed a lower sentence. After review, we affirm because Pace has not shown

that the state court’s finding—that he failed to show prejudice—was unreasonable.

                           I. BACKGROUND FACTS

A.    Offense and State Charges

      In August 1997, Pace entered the home of his estranged common-law wife,

Joice Massa, and shot her with a firearm. At the time of the shooting, other people


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were also in the home, including Tim and Michelle Spalding, Massa’s then-

boyfriend, Monti Andrews, and Massa’s two children with Pace.

      In September 1997, the State of Florida charged Pace with: (1) attempted

first degree murder (of Massa), in violation of Florida Statutes §§ 777.04, 782.04

(Count 1); (2) armed burglary of a dwelling, in violation of Florida Statutes

§ 810.02(2)(b) (Count 2); (3) aggravated assault (of Andrews) with a firearm, in

violation of Florida Statutes § 784.021 (Count 3); and (4) misdemeanor criminal

mischief, in violation of Florida Statutes § 806.13(1)(b)(1) (Count 4). Pace faced a

maximum life sentence for Counts 1 and 2 and a maximum five-year sentence on

Count 3. Under the Florida Sentencing Guidelines, Pace’s guidelines range was

121 to 201.25 months (or 16 years and 9 months) of imprisonment.

      An assistant public defender, Marie Samuels, represented Pace during

pretrial discovery and early plea negotiations. In September 1999, Pace substituted

retained counsel, Michael Giordano. The state offered a plea deal of 14 years in

prison. Pace counteroffered ten years in prison, which the state rejected.

Ultimately, Pace entered an open guilty plea to all four counts at a combined plea

and sentencing hearing.

B.    Plea and Sentencing Hearing

      During the hearing, the state court placed Pace under oath and inquired

about his decision to plead guilty and the rights he was giving up. Pace indicated


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that he had consulted with his attorney and that he was freely and voluntarily

pleading guilty to the four charged counts.

      As for the factual basis for the plea, the prosecutor stated that, on August 16,

1997, Pace broke into Joice Massa’s home, damaging the door, pointed a gun at

Monti Andrews, and attempted to kill Massa by shooting her “approximately seven

or eight times” while she lay on the floor. The night before the shooting, Pace saw

Massa at a local bar and there was a confrontation. The next day, Massa was at

home with Andrews watching television. Pace and Massa’s two children were also

present. At this point in the prosecutor’s statement, Pace’s defense counsel

objected “to this being outside the factual basis of the charges here.” When the

prosecutor indicated that there were more facts, the state court asked whether

sentencing would occur “right now or are we going to set it off?” Defense counsel

stated, “We are prepared.”

      The prosecutor continued reciting the factual basis for the plea, asserting that

the two children were inside the home and that Pace broke through the door of the

home, chased Massa into the kitchen where she was on the ground, and then shot

her “at least eight times.” The prosecutor stated that “[t]he children at some point

were very close by according to Ms. Massa’s testimony to me. They were in

danger of also getting hit as well.”




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      The state court asked Massa how she was doing physically. Massa, who was

not under oath, responded that she was doing better, but that her recovery was

taking a long time. Massa introduced her two children, mother, and stepfather.

      The state court asked defense counsel whether Pace wished to say anything.

Defense counsel responded that: (1) Pace had never denied his guilt; (2) Pace had

shown remorse by writing a letter apologizing to Massa and his children; and (3)

the state had offered 14 years, followed by ten years of probation. Defense counsel

asked for a sentence at the low end of the guidelines range. Pace addressed the

court and apologized to Massa and his children. Pace stated that he had a drinking

problem and would not have committed the offenses if he had not been drinking.

      The state court asked Massa if there was anything she wanted to say. Massa,

who was still not under oath, stated that her two children watched Pace shoot her

and that William, her son, was standing close behind her. As to her injuries, Massa

could not feel anything on her right side or use her hand. While hospitalized,

Massa had chest tubes because Pace shot her lung twice. The doctors had to “cut

meat away from [her] hand” twice each day to allow “the hole to grow back

together” and had to “unpack [her] stomach and repack it back together because

they couldn’t sew it shut.” Massa returned to the doctor once every two months to

have shrapnel removed, and the doctors removed “bullet number eight” last

October. Massa still had shrapnel in her side and hip, where a bullet hit her back,


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and she still had a bullet in her collar bone. Massa still had problems with her leg

and went to therapy.

      Massa also stated that when she was shot, her son “was close enough that he

was able to get under my head and hold my head and then he pulled my fingers

together and he kept patting me on the back telling me it will be all right,” and

“[a]bout the last four shots he was” right behind Massa. Massa stated that,

although Pace blamed his offenses on the alcohol, “[h]e was just as mean sober as

he was when he drank and it never ended. That’s why I left him.” At no time

during Massa’s statements did Pace’s attorney object and ask that she be sworn.

      Massa’s mother, Betty Humphrey, made an unsworn statement to the court.

Humphrey witnessed Pace abuse Massa and their children for years. Humphrey

said that Pace had shortened Massa’s life, that half of Massa’s insides were

missing, that Massa was “scared for her life,” and that her children were

traumatized by the incident. Massa’s stepfather, E.W. Humphrey, made an

unsworn statement that Massa was going to die at an early age because of her

injuries. Defense counsel did not object to the Humphreys’ statements or ask that

they be sworn.

      The prosecutor asked the court to “depart upward” and impose a thirty-year

sentence because: (1) one of Massa’s children was close to Massa when Pace shot

her, which created a substantial risk of death or great bodily harm to the child; (2)


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Massa “was shot while on the ground in a helpless position at least eight times,”

which showed she suffered extraordinary physical and emotional trauma or

permanent physical injury and was treated with particular cruelty; (3) Massa was

shot in the presence of her child; and (4) the offense involved multiple victims and

multiple incidents per victim.

       In response, defense counsel acknowledged that Massa’s injuries were very

serious, but argued that the severity of her injuries was already reflected in the

guidelines calculations. Defense counsel disputed the prosecutor’s facts, including

the number of shots Pace fired, whether Pace chased Massa through the house,

whether Pace continued to fire after Massa lay on the floor, and whether the

children were present. Defense counsel stated that the Florida Department of Law

Enforcement reports refuted that eight shots were fired. Rather, Massa had

suffered from shrapnel injuries.

       Defense counsel explained that “[t]here was a bone of contention” about

who was present during the shooting “and that’s why the depositions should have

been taken.” But, defense counsel stated that he “decided not to do certain things

to upset this family further . . . .”

       The state court stated that during plea negotiations about a plea to a 14-year

sentence, the state court had not known the facts. Having now heard the facts, the




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state court was not inclined to stay within the guidelines and expressly offered to

let Pace withdraw his guilty plea, as follows:

              Based on what I now know, sir, I cannot assure you or your
      attorney that I will stay within the guidelines. And I think you need to
      know that so if you want to withdraw your plea and go to trial, you
      have that right. I want you to understand that if I sentence you to 30
      years, you can’t say, woe, wait a minute.
              You also need to know that if I reject it that we are going to go
      to trial and depositions will be taken and we will have a trial date.

The state court recessed to allow Pace to consult with his attorney.

      When the state court reconvened, Pace stated that he wanted to plead guilty,

but asserted that this was the first time he had ever hurt someone. The state court

responded, “It sounds to me like you’ve been giving her a hard time for a long

time, Mr. Pace.” Defense counsel stated that he wanted to address this and other

factual issues. The state court indicated that defense counsel could “say anything

[he] want[ed] to say,” but that the court thought a twenty-year sentence was “the

fair resolution in this case” because Pace pulled the trigger with the intent to kill

the victim. The state court explained that “the fact is he pulled the trigger” was

“inexcusable. And he kept -- your intentions were to kill her that night, Mr. Pace.

You just didn’t succeed. Your intentions were to kill her, but you didn’t.” The

state court concluded, “Again, I’ll hear whatever he wants to say. But understand

that’s my intentions right now. He may say something and I may give him 30

years.”


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      Defense counsel responded that the court had only “heard one side of the

facts” and that he wanted to “round out the facts for the court.” Defense counsel

represented that based on police reports, Pace entered the home through a door to

the bedroom where Andrews was watching television. Andrews said “please don’t

kill me,” and Pace ignored him, walked by him and entered into the living room.

Massa heard Andrews say “don’t shoot, turned and saw Mr. Pace and got shot.”

Defense counsel disputed Massa’s claim that Pace chased her through the home.

      Defense counsel stated, “I want the court to understand that there are two

sides. We’re not denying the shooting. But there’s two sides to this picture here.”

Counsel explained that Pace spent the previous night with Massa, had been in and

out of the home several times that day, and had become enraged when he saw

Massa with Andrews. Counsel reiterated that Pace was extremely intoxicated at

the time of the shooting. Counsel clarified that Pace was not disputing his guilty

plea, that he was “here to take his medicine,” and that “these are the arguments that

would have been made to the jury.”

      Defense counsel argued that in her deposition, Massa said she was in the

bathroom when she heard “a bang of the door” as Pace entered the bedroom, and

that she was shot as she came around the corner. Defense counsel acknowledged

that “we had some discrepancy as to who was present there” during the shooting.

Defense counsel stated that, although he had decided not to take further depositions


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(presumably of the children) to resolve the dispute, he had “real problems” with

Massa’s hearing statement in light of her above deposition testimony. Defense

counsel reiterated his request for the 14-year guidelines sentence originally offered

in November 1999.

      In response, the prosecutor stated that he was part of the original plea

negotiations, and his recollection was that Pace rejected the state’s 14-year offer

because he wanted a ten-year plea deal. The prosecutor did not challenge what

defense counsel said and admitted that Massa spent the night with Pace the night

before the shooting. The prosecutor contended that Massa did so because she felt

threatened by him.

      At this point, the state court found that there was a factual basis for the plea

and adjudicated Pace guilty of all four counts. The state court stated that it would

have rejected the 14-year plea deal once it had heard the factual basis for the guilty

plea and thus Pace was not harmed by his defense counsel’s representation.

Although the prosecutor requested thirty years, the state court sentenced Pace to a

twenty-year prison term on Counts 1 and 2, a five-year prison term on Count 3, and

time served on Count 4, each sentence to run concurrently.

      In a written list of reasons for departing from the sentencing guidelines, the

state court noted four aggravating factors: (1) the “[o]ffense created substantial risk

of death or great bodily harm to many persons or to one or more small children”;


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(2) the “[v]ictim suffered extraordinary physical or emotional trauma or permanent

physical injury, or was treated with particular cruelty”; (3) the [v]ictim was

physically attacked by the defendant in the presence of one or more members of

the victim’s family”; and (4) the “[o]ffense involved multiple victims or multiple

incidents per victim.”

B.    2000 Direct Appeal in State Court

      In 2000, Pace appealed his state convictions and sentences. On appeal, Pace

argued that the trial court abused its discretion in imposing a sentence above the

sentencing guidelines and that the state had not presented sufficient evidence to

support the upward departure. As to the aggravating factors, Pace argued that: (1)

the only evidence supporting the first and third factors—the risk of harm to one or

more small children and the attack in the presence of Massa’s family—was

Massa’s unsworn testimony; (2) the state presented no evidence to support the

second factor as to the extent of Massa’s injuries or emotional trauma; and (3) the

fourth factor, relating to the number of victims or incidents, applied only to

economic crimes.

      In response, the government argued that: (1) Pace “failed to preserve” for

appeal the issue of Massa’s unsworn testimony by objecting to it during the plea

and sentencing hearing; (2) the appellate court should not substitute its judgment

for that of the trial court’s with respect to Massa’s credibility and the weight to be


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given her testimony; (3) Massa’s statements supported the trial court’s first three

aggravating factors; and (4) the admitted invalidity of the fourth factor was

harmless because, under Florida law, only one valid reason is needed to support a

departure sentence.

      In 2001, the state appellate court affirmed Pace’s convictions and sentences.

See Pace v. State, 804 So. 2d 1256 (Fla. Dist. Ct. App. 2001) (unpublished table

decision).

C.    Pro Se State Petition for Habeas Corpus

      In 2002, Pace filed a pro se “Petition for Belated Appeal Ineffective

Assistance of Counsel” in the Florida Second District Court of Appeals, which was

construed as a habeas petition. Pace’s petition claimed that the sentencing court

failed to put the witnesses under oath and that Pace’s trial counsel was ineffective

for failing to object to the trial court’s reliance on unsworn statements to support

the upward departure sentence.

      The state responded that Pace’s trial counsel was not ineffective because he

raised the issue of Massa’s unsworn testimony on appeal, and that in any event,

Pace was not prejudiced by the failure to place Massa under oath. Specifically, the

state argued that “[h]ad the witness been sworn, she still would have given the

same testimony and had trial counsel timely objected, the judge would merely have

sworn the witness.”


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      The Florida Second District Court of Appeals denied Pace’s habeas petition

and later denied Pace’s motion for rehearing and rehearing en banc.

D.    Rule 3.850 Post-Conviction Motion

      In 2003, Pace filed in state court a pro se motion for post-conviction relief,

pursuant to Florida Rule of Criminal Procedure 3.850. Pace argued that his trial

counsel was ineffective for, inter alia, failing to object to, and preserve for direct

appeal, the unsworn statements of Massa, her mother, and her stepmother at the

sentencing hearing. Pace asked that he be resentenced to a guidelines sentence.

      In 2003, the state 3.850 court denied Pace’s motion with respect to Pace’s

claim about the unsworn statements. The state 3.850 court found that Pace had not

shown prejudice under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052

(1984), because the victim’s unsworn statements were not the sole basis for the

upward departure and the state court had valid reasons for its departure sentence

without those statements.

      The state 3.850 court’s order allowed two of Pace’s other ineffective

assistance claims—failure to conduct adequate presentencing investigation into the

victim’s version of events and failure to object to the trial court’s reasons for the

departure— to proceed to an evidentiary hearing. Pace then filed “newly

discovered evidence,” consisting of 2004 affidavits of Massa and her son William

Pace. Massa’s affidavit averred that she made misstatements at Pace’s plea-


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sentencing hearing because she was in shock the night she was shot and was not

sure what actually happened. Massa felt pressured by family and friends to say

things at the hearing that she was unsure about. Now, seven years later, Massa

contended that she was shot only three times. She and her son William both

averred that Massa’s children were not in the room when she was shot and that

William entered the room only afterward.

      At the evidentiary hearing, Massa testified that she had no independent

recollection of the night of the shooting, but that she had since obtained the

ballistic reports, police reports, and information from the bullet manufacturer.

Based on this information, Massa now believed that she was shot only three times

and that many of her injuries were caused by fragments from the splintering bullets

or were exit wounds. Massa’s two children testified that they were not present in

the room when Pace shot Massa. Massa’s son William stated that after his mother

was shot and his father fled, he entered the room and held his mother’s head.

      After the evidentiary hearing, the state 3.850 court denied Pace’s remaining

claims. Pace appealed, and the state appellate court affirmed. See Pace v. State,

973 So. 2d 451 (Fla. Dist. Ct. App. 2007) (unpublished table decision).

E.    Section 2254 Petition

      In 2011, following state proceedings not relevant to this appeal, Pace filed

the instant pro se § 2254 petition, asserting multiple grounds for relief. Ground


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Two alleged that Pace’s trial counsel was constitutionally ineffective by failing to

object at sentencing to the unsworn statements of Massa and her family and that

the state trial court relied upon those statements to impose the upward-departure

sentence. Pace’s § 2254 petition requested a new sentencing hearing. In 2012, the

district court denied Pace’s § 2254 petition on all grounds.

       Pace appealed. This Court granted a certificate of appealability as to

“[w]hether the district court erred in denying Ground Two of Pace’s habeas corpus

petition.”

                                     II. DISCUSSION

A.     AEDPA and Ineffective Assistance

       Pursuant to § 2254(d), as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), federal courts may only grant habeas relief on

claims previously adjudicated on the merits in state court if the state court’s

decision was (1) “contrary to, or involved an reasonable application of, clearly

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

or (2) “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).1



       1
        We review de novo the district court’s determination as to whether the state court acted
contrary to or unreasonably applied clearly established federal law, or made an unreasonable
determination of fact. Hall v. Thomas, 611 F.3d 1259, 1284 (11th Cir. 2010). In reviewing the
§2254 petition de novo, however, we “owe deference to the final state habeas judgment.” Id.
(quotation marks omitted).
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      To establish constitutionally ineffective assistance under Strickland, the

§ 2254 petition must show that his Sixth Amendment right to counsel was violated

because (1) his counsel’s performance was deficient, and (2) the deficient

performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at

2064-65.

      Here, the state 3.850 court found that Pace had not satisfied the second

prong of Strickland by showing prejudice from his counsel’s failure to object to the

unsworn statements of Massa and her family. Prejudice is “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694, 104 S. Ct. at 2068. “It is not

enough for the [petitioner] to show that the error[ ] had some conceivable effect on

the outcome of the proceedings.” Id. at 693, 104 S. Ct. at 2067. Rather, a

reasonable probability is one sufficient to undermine confidence in the outcome.

Id.

B.     Pace’s Sentence

      Considering the record as a whole, we cannot say that the state court’s

determination as to prejudice was unreasonable. As background, Florida law

specifically provides that a victim may “[a]ppear before the sentencing court for

the purpose of making a statement under oath for the record.” Fla. Stat.

§ 921.143(1)(a) (emphasis added). And, “[a]n unsworn witness is not competent to


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testify.” Willis v. Romano, 972 So. 2d 294, 294 (Fla. Dist. Ct. App. 2008)

(quotation marks omitted). Thus, Pace’s trial counsel should have objected to the

victim’s unsworn testimony and preserved that issue for direct appellate review.

But, even without that original-sentencing testimony, the record shows that at the

3.850 hearing, the witnesses, under oath, testified that: (1) Pace shot Massa three

times and seriously injured her, (2) their two children were in the house, and, (3)

even if her son was not nearby, he entered the room just after the shooting and held

his mother’s head in his lap while she lay on the floor. Notably, at the 3.850

hearing, Massa never denied these facts or recanted her prior statements about the

serious nature and extent of her massive injuries. This is not an attempted-murder

case where the defendant shot and missed, but one where Pace shot several times

and inflicted massive and serious injuries and significant emotional trauma.

      Florida Statutes § 921.0016, applicable at the time of Pace’s 1997 offense,

set forth a “nonexclusive list of grounds for departure, i.e., aggravating and

mitigating factors.” See Banks v. State, 732 So. 2d 1065, 1067 n.2 (Fla. 1999); see

also Fla. Stat. § 921.0016(3)-(4) (1995). In addition, the state appellate court

would uphold a trial court’s departure sentence when at least one § 921.0016




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sentencing factor justified the departure, regardless of whether other factors did or

did not justify the departure. Fla. Stat. § 921.001(6) (1995). 2

       Here, the upward departure was supported by this one aggravating factor

alone in § 921.0016: “[t]he victim suffered extraordinary physical or emotional

trauma or permanent physical injury, or was treated with particular cruelty.” See

Fla. Stat. § 921.0016(3)(l) (1995). Further, the statutory maximum was life, the

state requested at least a thirty-year sentence, and the state court imposed a twenty-

year sentence. Under the record as a whole, Pace has not carried his burden to

show a reasonable probability of a different result, and we cannot say the state

3.850 court’s finding as to prejudice was unreasonable.

                                    III. CONCLUSION

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

§ 2254 petition with respect to his ineffective assistance claim alleged in Ground 2.

       AFFIRMED.




       2
         Parts of Chapter 921 of the Florida Statutes were repealed on October 1, 1998, including
the provisions governing departure sentences, but the former version of the statute remains in
effect for any offense committed before October 1, 1998. See Fla. Stat. § 921.001 (2013); 1997
Fla. Laws ch. 97-194, § 1.
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