           Case: 14-11513   Date Filed: 12/09/2014   Page: 1 of 14


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11513
                       ________________________

                 D.C. Docket No. 3:11-cv-00311-BJD-JRK


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

                                                         Petitioners-Appellants,

                                  versus

SHKELQIM FANA,

                                                         Respondent-Appellee.

                       ________________________

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

                            (December 9, 2014)

Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.

PER CURIAM:
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      We have had the benefit of oral argument in this case, and have carefully

reviewed the briefs and relevant parts of the record. The district court in this case

granted relief to Fana on three grounds of his petition for writ of habeas corpus

brought pursuant to 28 U.S.C. § 2254. The State appeals, challenging the

judgment of the district court on each of the three grounds. We address each

ground in turn.

                                           A.

      The district court held that Fana’s trial counsel rendered ineffective

assistance of counsel in failing to object to the Florida standard jury instruction on

the forcible-felony exception to self-defense. The forcible-felony instruction given

at Fana’s trial provides:

              However, the use of force . . . [by Fana] is not justified if you
      find . . . [that] Fana was attempting to commit, committing, or
      escaping after the commission of attempted first-degree murder.

Trial Tr. at 929. Fana thereafter contended in his state post-conviction petition for

relief that trial counsel’s failure to object to the instruction constituted ineffective

assistance of counsel. The state habeas court denied the claim, stating:

      The Standard Jury Instructions, as approved by the Supreme Court of
      Florida, were provided to the jury in this case. In this case, the model
      jury instructions were followed when instructing the jury and counsel
      cannot be termed ineffective for failing to object to a standard jury
      instruction which has not been invalidated at the time of a defendant’s
      sentencing. Thompson v. State, 759 So. 2d 650, 665 (Fla. 2000). The
      failure to object to a jury instruction, which is later found to be


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      improper is not ineffective assistance. Thomas v. State, 838 So. 2d
      535 (Fla. 2003).

Fana v. State, No. 16-2000-CF-4473-AXXX at *6-*7 (Fla. Cir. Ct. Jan. 15, 2010)

(emphasis added). This ruling was affirmed on appeal to the First District Court of

Appeal. Fana v. State, 54 So. 3d 492 (Fla. 1st DCA Feb. 17, 2011).

      On federal habeas review, the district court acknowledged that these state

court decisions were adjudications on the merits, and thus warranted deference

pursuant to 28 U.S.C. §2254(d), but it concluded that “the state courts’

adjudications of this claim involved an unreasonable application of clearly

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

District Court Order, Docket 33, at 44. Yet, the actual analysis of the district court

gave no deference to these state court decisions, which had found no ineffective

assistance by trial counsel as a result of the latter’s failure to object to a standard

jury instruction that had not yet been invalidated at the time of trial; see id. at 52–

54. Nor did the district court adequately explain why these state court decisions

constituted an unreasonable application of clearly-established federal law. We

therefore conclude that the district court erred.

      Applying the appropriate deference, we disagree that the state court

decisions “resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. §2254(d)(1). The clearly-established
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federal law is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

(1984). See discussion infra. We find no basis to conclude that the state court

decision constituted an unreasonable application of Strickland. At the time of trial,

no Florida District Court of Appeal, including the First District Court of Appeal,

had held that the standard instruction which Fana now challenges was invalid or

that the instruction could be used only where the person claiming self-defense is

engaged in another, independent “forcible felony.” It is true that a different

District Court of Appeals, the Fourth District Court of Appeal, so held after

completion of the trial in this case. Giles v. State, 831 So. 2d 1263, 1265–66 (Fla.

4th DCA 2002).1 However, numerous decisions of this Court have construed

Strickland as not requiring counsel to make arguments based on predictions of how

the law may develop. See, e.g., Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir.

1995) (“To be effective within the bounds set by Strickland, an attorney need not

anticipate changes in the law.”); Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th

Cir. 1994) (“We have held many times that reasonably effective representation

cannot and does not include a requirement to make arguments based on predictions


1
        Indeed, in McGahee v. State, 600 So. 2d 9 (Fla. 3d DCA 1992), the majority had rejected
an argument articulated by the dissent which foreshadowed the Giles holding that the forcible-
felony instruction was appropriate only where the person claiming self-defense was engaged in
another, independent forcible felony. Id. at 10. Thus, as of the time of trial, not only had no case
adopted the position of the McGahee dissent (i.e., the later position of the Giles court), but there
was an on-point case in still another District Court of Appeal indicating that the instruction was
not erroneous.


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of how the law may develop.”); Funchess v. Wainwright, 772 F.2d 683, 691 (11th

Cir. 1985) (“The failure of counsel to anticipate that an otherwise valid jury

instruction would later be deemed improper by the state judiciary does not

constitute ineffective assistance of counsel.”). Accordingly, we conclude that the

state court’s rejection of Fana’s claim of trial counsel’s ineffective assistance was

not an unreasonable application of federal law.

                                           B.

      The second ground on which the district court granted habeas relief for Fana

was Fana’s claim that his appellate counsel was ineffective in failing to argue on

direct appeal that the trial court’s giving of the forcible-felony instruction

constituted fundamental error. This was Fana’s Ground 14 in the district court, and

is sometimes referred to herein as Ground 14. The district court applied de novo

review to this claim. In its brief to this Court, the State appears to have conceded

that although this claim was presented to the state courts, the latter did not rule on

it; that the claim is exhausted and free from procedural bar; and that the district

court properly exercised de novo review (i.e., gave no deference to the state court

decision). Accordingly, we likewise apply de novo review to this claim, and

address its merits.

      As noted above, Fana’s trial counsel did not object to the forcible-felony

instruction. Likewise, appellate counsel did not assert on appeal that the trial court


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committed error when it gave this instruction: an omission that Fana now contends

to have constituted ineffective assistance. But, as set out above, it was not until

after conclusion of the trial in this case that a Florida court ever held that the

forcible-felony instruction is appropriate only when the person claiming self-

defense was engaged in a separate, independent forcible felony. See Giles, supra.

At the time Giles was issued, Fana’s direct appeal was pending, with Fana’s brief

having been filed several months earlier. Fana argues that once Giles had been

issued, appellate counsel should have sought leave to supplement his initial brief

on direct appeal to raise this Ground 14 as an additional issue. The district court

agreed that appellate counsel’s failure to do so constituted ineffective assistance,

and granted relief for Fana on this ground. We disagree, and reverse.

      To prevail on his claim that appellate counsel was ineffective in failing to

allege that the trial court had erred by giving the standard, approved instruction on

self-defense, Fana must establish both deficient performance by appellate counsel

and prejudice. Strickland, 466 U.S. 688, 104 S.Ct. 2052. To satisfy the

performance prong of the test, Fana must show that his appellate counsel’s

representation fell below an objective standard of reasonableness. Id. at 687, 104

S. Ct. at 2064. To meet the prejudice prong, Fana must establish a reasonable

probability that, but for counsel’s errors, the outcome would have been different.




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Id. at 694, 104 S.Ct. at 2068. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id.

      The district court concluded that appellate counsel performed deficiently

because he should have become aware of the Giles decision during the appeals

process and then should have sought leave to supplement his initial brief in order

to raise the erroneous jury instruction claim. We disagree that appellate counsel’s

failure to so act rendered his performance deficient under Strickland. First, even if

we assume that an appellate attorney should, during the pendency of the appeal,

continue monitoring applicable case law from the appellate court reviewing the

appeal, Fana’s appellate counsel would have never discovered Giles through such a

process. This is so because Fana’s appeal was before the First District Court of

Appeal, but Giles was a decision by a different appellate court: the Fourth District

Court of Appeal. As such, it was not binding in the First District Court of Appeal

in which Fana’s direct appeal was pending. Pardo v. State, 596 So. 2d 665, 667

(Fla. 1992) (“As between District Courts of Appeal, a sister district’s opinion is

merely persuasive.” (quoting State v. Hayes, 333 So. 2d 51, 53 (Fla. 4th DCA

1976))).

      Second, even had appellate counsel happened upon the Giles decision after

filing his brief, his failure to seek leave to add a Giles claim would not necessarily

have been unreasonable. Besides the fact that, arising out of a different district


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appeals court, Giles had no precedential effect in the First District, Giles could be

readily distinguished from Fana’s case for another significant reason. That is,

Giles had objected at trial to the giving of the forcible-felony instruction; Fana had

not. Fana’s failure to object at trial meant that on appeal, merely showing error in

the instruction would have been insufficient to obtain relief. Instead, Fana would

have had to show that the giving of the forcible-felony instruction constituted

“fundamental error.” And it was not until after Fana’s conviction had been

affirmed on appeal that a Florida appellate court had held that the erroneous giving

of the forcible-felony instruction could constitute “fundamental error.” 2 See Fair

v. Crosby, 858 So. 2d 1103, 1104–05 (Fla. 4th DCA 2003), abrogation recognized

by Clark v. State, 23 So. 3d 1213, 1215 (Fla. 4th DCA 2009).

       In short, on the above facts, we do not find appellate counsel’s failure to

seek to amend his appeal brief to add a Giles claim to have fallen below an

objective standard of reasonableness. But even were we to assume that it had, the

district court still erred in granting him relief, because Fana has not demonstrated

prejudice, as is required by Strickland. That is, he has not established by a

reasonable probability that, but for appellate counsel’s errors, the outcome would



2
        And it was not until September 11, 2006 that the First District Court of Appeal ruled that
the giving of the forcible-felony instruction could constitute fundamental error. See Williams v.
State, 937 So. 2d 771, 774 (Fla. 1st DCA 2006). This was some three years after Fana’s
conviction had been affirmed by the above court.


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have been different. As noted, “[a] reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Supra at 7.

      In addressing this prejudice prong of the analysis, the district court focused

on whether the outcome of the trial would have been different had the jury not

been given the forcible-felony instruction. The court concluded that the jury likely

would not have convicted, absent this instruction. We disagree. To explain why,

an examination of the evidence presented at trial is necessary.

      Bujari, the victim of the attempted murder for which Fana was convicted,

survived and testified at Fana’s trial. He testified that he and Fana had been

friends, but had fallen out several months prior. On the night of the crime, Bujari

testified that he received twenty calls from someone who remained silent when

Bujari answered. Unable to sleep, he went to work at the bakery where he was

employed. He was alone at work, unloading the bread truck, when he turned and

saw Fana holding a knife. Fana cursed him and stabbed him in the stomach. A

struggle ensued. Fana pulled out a second knife from behind his back, and kept

stabbing Bujari. Bujari thought he blacked out at some point. After Fana left,

Bujari regained consciousness and managed to call 911. In the 911 recording,

which was played for the jury, Bujari said, “Help, I am dying,” and he identified

Fana as the one who had stabbed him with a knife and tried to kill him.




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      The officers who arrived at the scene testified that they found Bujari lying

on the floor, holding his intestines, surrounded by a large amount of blood. Bujari

told the officers that Fana had attacked him and gave them his name and address.

The officers went to that address to arrest Fana. After being Mirandized, Fana

essentially confessed that he had tried to kill Bujari:

      I went there to kill him because he was fucking my wife. I took two
      knives and I don’t know where they are now. . . .I went over to kill
      that mother fucker. Is he dead?

Trial Tr. at 458–59.

      Notwithstanding this admission, at trial Fana testified that he went to the

bakery and went inside, where he saw his friend Bujari. When Fana asked how

Bujari was doing, the latter grabbed two big knives and attacked Fana. Fana

testified that he was scared and thought Bujari was trying to kill him. So, Fana

found a knife on a table and fought back to defend himself.

      Besides the fact that this testimony was contradicted by Fana’s admission to

police officers that he had gone to the bakery, armed with two knives and the

intention to kill Bujari, it was likewise undermined by other testimony. As to

Fana’s testimony that he had just happened upon a knife at the bakery, Fana’s son,

Jurgen, testified that he had observed his father take knives, wrap them in a brown

paper towel, and place them in the back of his waistband before leaving the house

on the night of the attack. Jurgen identified the knives in a photograph. Moreover,


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an employee and owner of the bakery testified that the knives left at the scene were

not knives of the bakery, nor of the same type as the knives there.

       As for Fana’s testimony that Bujari was the aggressor and that he, Fana, was

merely trying to protect himself from Bujari’s unprovoked attack, testimony of

medical professionals undermined that statement as well. A doctor who had

examined Bujari after the attack testified that the contents of Bujari’s abdomen

were exposed, there was damage to his lungs and liver, and there was an estimated

blood loss of up to 30%. A nurse testified that she evaluated Fana’s medical

condition on his arrival at jail. She reported that he had only superficial lacerations

on his right arm and the knuckle of his left hand, and some scratches on his face.

       We conclude that with such overwhelming evidence contradicting Fana’s

claim of self-defense, there is no reasonable probability that the jury would have

reached a different verdict had the instructions not included the now-prohibited

forcible-felony language. Indeed, so inconsequential was this language to Fana’s

case that neither the prosecutor nor defense counsel ever mentioned the substance

of the instruction in either of their closing arguments. For the same reasons, we

conclude that Fana nonetheless received a fair trial and giving the forcible-felony

instruction did not constitute fundamental error under Florida law. 3 See Holiday v.


3
       As noted supra at 5, we are required to review this issue de novo, because, although the
Florida First District Court of Appeal rejected Fana’s argument that appellate counsel rendered


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State, 753 So. 2d 1264, 1268–70 & n.3 (Fla. 2000) (holding that an erroneous

instruction on an affirmative defense was not fundamental error where the

defendant’s use of the defense was “tenuous” and the instruction did not otherwise

violate due process); Smith v. State, 521 So. 2d 106, 108 (Fla. 1988) (holding that

the doctrine of fundamental error should be applied only in rare cases where either

a jurisdictional error appears or where the interests of justice present a compelling

demand for its application, and concluding that an incorrect jury instruction on an

affirmative defense was not fundamental error because it was not “so flawed as to

deprive defendants claiming the defense . . . of a fair trial”).

        Because we conclude that giving the forcible-felony instruction at Fana’s

trial was not fundamental error, it follows that the performance of Fana’s appellate

counsel was not constitutionally deficient. Appellate counsel could have

reasonably concluded that it would have been futile to attempt to raise an

unpreserved claim absent an ability to show that fundamental error had occurred.

Indeed, at the time of the direct appeal here, no Florida appellate court had held

that the giving of the forcible-felony instruction was a fundamental error and the

First District Court of Appeal had not even found the instruction, itself, to be

erroneous. From our conclusion that the instruction did not constitute fundamental


ineffective assistance by failing to assert error in the trial court’s giving of the forcible-felony
instruction, it did not do so on the merits of the claim, but instead summarily denied Fana’s
request to amend his habeas petition to include this ground.


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error also arises the inference that there is not a reasonable probability of a

different result on appeal, even had appellate counsel attempted to belatedly raise

this claim.

                                                C.

       Finally, the district court granted relief on Ground 13—ineffective assistance

of appellate counsel for failing to raise on direct appeal the unpreserved alleged

error in sentencing Fana on the basis of the crime of attempted second degree

murder with a deadly weapon, as opposed to the crime that he was convicted of,

attempted second degree murder with a weapon. Order at 69. The district court

concluded that appellate counsel was deficient and that Fana also satisfied the

prejudice prong of Strickland. Id. at 74. We conclude that the district court erred

in several respects. The district court reviewed the issue de novo, and failed to

afford the state court judgment the deference it was due on this issue. Moreover,

the alleged error, even if error, was unpreserved, and clearly was not fundamental

error which appellate counsel could raise. 4 Finally, the district court’s conclusion




4
       Even if appellate counsel could have moved in the trial court to correct the alleged error,
and even if we entertain that possibility despite Fana not having raised it sooner, appellate
counsel clearly would not have been deficient in failing to do so for the reasons noted in the next
sentence in the text and in footnote 5.



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that the alleged error resulted in a different outcome is pure speculation. 5 We

reverse the judgment of the district court with respect to this issue.

       In sum, we reverse the judgment of the district court on each of the three

claims on which the district court granted relief. The case is remanded with

instructions to enter judgment denying Fana’s petition for writ of habeas corpus.

       REVERSED and REMANDED.




5
        The sentencing judge tried this case and heard all of the gruesome evidence. In this case,
the knives used by Fana were not only “weapons,” they were used in a “deadly” manner. The
First District Court of Appeal considered this claim on the merits, and denied it. We agree with
the implicit ruling of that court that there is little or no likelihood that the sentencing judge would
have changed the sentence had the alleged error been pointed out; and, in any event, the First
District Court of Appeal clearly was not unreasonable in applying the Strickland standard.


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