                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                        FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                             No. 10-15245                 MAY 23, 2012
                         Non-Argument Calendar             JOHN LEY
                       ________________________             CLERK

                D.C. Docket No. 3:09-cv-00497-HLA-TEM



GARRETT SIMS,

                                                         Petitioner-Appellant,


                                  versus

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

                                                      Respondents-Appellees.

                      ________________________

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

                              (May 23, 2012)

Before HULL, FAY and ANDERSON, Circuit Judges.
PER CURIAM:

       Garrett Sims, a Florida prisoner, pro se appeals the denial of his 28 U.S.C.

§ 2254 petition for a writ of habeas corpus. After review, we affirm.

                                    I. BACKGROUND

       After his first trial ended in a mistrial, Sims was convicted in his second

trial. To understand the issue on appeal, we review what happened at both trials.

A.     First State Court Trial and Mistrial

       In 2001, Sims was charged with two counts of driving under the influence,

causing serious bodily injury, in violation of Florida Statutes § 316.193(3).1 Sims

stopped his pickup truck in the middle of the highway at night. Another vehicle

then struck Sims’s stopped truck, resulting in injuries to the other vehicle’s

occupants.

       During the 2003 trial, Roy Welch, a truck driver, testified that on the night

of July 27, 2001, he encountered a pickup truck stopped in the middle of the road

with its lights on. As Welch maneuvered his 18-wheeler around the pickup truck,

he could not see anyone inside the pickup truck or on the side of the road. Welch

       1
        To convict a person under § 316.193(3), the state must show that, in addition to the
defendant being guilty of the offense of driving under the influence by “driving or in actual
physical control of a vehicle” with a blood-alcohol level of 0.08 or more, the defendant also
“operate[d] a vehicle” and “by reason of such operation” caused or contributed to causing serious
bodily injury to another. See Fla. Stat. § 316.193(1), (3).

                                                2
drove to his nearby home and called 911 to advise authorities of the stopped

pickup truck.

      Within about fifteen minutes, Welch returned to the stopped pickup truck to

place flashers around it. By that time, another vehicle already had struck the

pickup truck from behind. Welch found Defendant Sims walking around the crash

site and saw beer cans scattered across the road.

      Ronald Allen, the driver of the other vehicle, testified that he was driving

with his four-year-old son sleeping next to him. Allen looked down at his son and

then up and saw the pickup truck stopped in the middle of the road, with the driver

slumped over the wheel. Allen applied his brakes, but collided with the rear of the

pickup truck. Allen went through the front windshield, landed in the road and

broke his sternum. His son had a broken leg. A helicopter flew Allen and his son

to the hospital.

      Trooper Richard Gill, a Florida Highway Patrolman, responded to the crash

and testified about his investigation. After smelling alcohol on Defendant Sims’s

breath, Trooper Gill administered field sobriety tests, which indicated that Sims

was impaired. Although Trooper Gill did not personally observe Sims driving,

Sims admitted he was driving the truck. Trooper Gill did not observe any visible

injuries on Sims, and Sims told Trooper Gill he was not hurt. Sims also told

                                         3
Trooper Gill he was a diabetic, but Sims did not appear to be affected by his

diabetes at the time, only intoxicated. When Trooper Gill asked Sims whether he

needed medical assistance, Sims initially indicated he did not need to go to the

hospital. When Trooper Gill explained that Sims could either be arrested at the

scene or transported to the hospital, Sims elected to go to the hospital. A later

blood test indicated that Sims’s blood alcohol level was .113 or .114, above the

legal limit of .08.

       Sims’s defense was that he had not been driving the truck. Sims’s defense

counsel elicited testimony from several witnesses to the aftermath of the

crash—including Welch, Trooper Gill, another trooper and a paramedic—that

Sims was outside the truck and appeared uninjured.

       The State sought to introduce Sims’s hospital records indicating that Sims

was injured when he struck his head on the windshield of his pickup truck. The

State subpoened the hospital records to complete its file. Neither the State nor

Sims’s counsel saw the contents of the hospitals records until the records

custodian produced them in court the day of trial. Sims’s counsel objected

because the government had not produced the records during discovery and had

not followed Florida law in obtaining them. However, Sims’s counsel added that

he did “not in any way mean[ ] to suggest that the State was trying to ambush the

                                          4
defense . . . .”

       The state trial court found that allowing the records to come in “at the last

minute” was “highly prejudicial.” The state trial court refused to admit the records

because they “should have been disclosed” during discovery, and both parties

“should have known about them way before now.” The State asked to “reserve the

right to call it for rebuttal if the defendant puts on evidence that he [was] not in the

vehicle.” The trial court ruled that the records could not be admitted on rebuttal.

       The State then indicated that it intended to recall Trooper Gill to testify that,

after the crash, Sims said he was wearing the driver-side seatbelt and was injured

in the crash. The trial court expressed concern about the prosecutor recalling

Trooper Gill to ask questions about injuries documented in the excluded hospital

records. Sims’s counsel objected to Trooper Gill being recalled, stating, “[I]f

they’re inclined to go into that, then I would move for a mistrial. I don’t want to

move for a mistrial at this point in time based on the state of the record. However,

you know, I mean it’s real difficult when you get certain questions and answers

out of witnesses and you proceed along and then all of a sudden there’s going to

be a change.”

       The trial court stressed that the hospital records “bring[ ] out things that are

not even close to what’s coming out here on the testimony.” After further

                                           5
discussion, the trial court stated that it was going to declare a mistrial. The State

requested permission to speak with Sims’s counsel before the trial court declared a

mistrial. The State’s and Sims’s counsel then had a brief, off-the-record

discussion in the hallway. When they returned, Sims’s counsel stated, “Judge,

we’ll abide by the Court’s ruling I think is the consensus.”

      The state trial court then declared a mistrial and discharged the jury. The

trial court agreed to defense counsel’s request to place the case on a sixty-day

calendar so Sims could take depositions.

B.    Second State Court Trial

      In October 2003, prior to the second trial, Sims’s counsel filed a motion to

dismiss on double jeopardy grounds. The motion argued that the trial court’s sua

sponte declaration of a mistrial barred retrial because Sims did not adopt the

mistrial ruling and jeopardy attached. The State responded that trial counsel’s

statement that Sims would “abide” by the trial court’s ruling amounted to a

consent to the mistrial under Florida law, citing Adkins v. Smith, 205 So. 2d 530,

531 (1967) (finding defense counsel’s statement that he had “nothing to say” on

the state’s proposed motion for a mistrial was consent).

      The state trial court denied the motion to dismiss. The trial court stated:

      I have gone over this and go back looking at the record and

                                           6
      remembering what took place. I just felt at that time that the problem
      with the record - - the records would have led in if I said they were
      coming in, then the defense would have been highly prejudiced. If I
      didn’t let them in the state was going to be prejudiced and I felt like
      using the language they used here with the totality of the situation and
      all it was going on at that particular point in order for justice to be
      served that a mistrial needed to be declared and get that discovery and
      deal with it and then come back and try the case. So I am going to deny
      the motion, Mr. Taylor, and go to trial.

In the second trial, the jury found Sims guilty on both counts. Sims was sentenced

to consecutive terms of 60 months’ and 43 months’ imprisonment.

      Sims appealed the convictions, arguing that the trial court had erred in

denying his motion to dismiss because Sims did not consent to the mistrial and the

mistrial was not supported by manifest necessity. The First District Court of

Appeal (“First DCA”) summarily affirmed.

      Sims then filed a pro se state petition for habeas corpus relief with the First

DCA, alleging, inter alia, that his trial counsel was ineffective for consenting to

the mistrial. The First DCA denied Sims’s state habeas petition.

C.    Rule 3.850 Motion for Post-conviction Relief

      In April 2006, Sims filed a pro se motion for post-conviction relief pursuant

to Florida Rule of Criminal Procedure 3.850 in the Circuit Court of the Third

Judicial Circuit of Florida (“3.850 court”). Relevant to this appeal, Sims argued

that his trial counsel was ineffective in consenting to the trial court’s sua sponte

                                           7
declaration of a mistrial because there was no manifest necessity for a mistrial and

counsel’s consent deprived Sims of his double jeopardy rights.

      The 3.850 court initially denied relief on Sims’s ineffective assistance

claim, but then granted Sims’s motion for rehearing and scheduled an evidentiary

hearing. At the hearing, Sims’s 3.850 counsel stated that trial counsel was unable

to attend. Instead, Sims submitted two letters by trial counsel, which were

admitted in lieu of testimony.

      Trial counsel’s first letter, dated October 31, 2003, advised Sims, inter alia,

that he might have an ineffective assistance claim that he may raise in a 3.850

motion. Trial counsel’s letter stated:

      That motion would allege, if the facts bear out, that I should have
      specifically renewed my objection to a mistrial in the first trial. That
      renewal or filing of an objection should have been done once the court
      indicated on its own that it was going to declare a mistrial. I knew I had
      told the court that I did not want a mistrial, but the record reflects that
      it was done before the court entered its order and not after. That issue
      may be significant down the road, and in that regard, you would need
      another attorney to handle that portion of your case.

The letter also stated that trial counsel was “upset that the jury did not agree with

[Sims’s] version of events,” and admitted that “as is always the case when there is

an unsuccessful trial verdict, this lawyer rehashes and rethinks and second guesses

questions that should have been asked, others that should not have been asked,



                                           8
etc.”

        Trial counsel’s second letter, dated September 18, 2007, was sent to the

State prosecutor and enclosed the first, October 31, 2003 letter. In the second

letter, trial counsel stated, inter alia, that the October 31, 2003 letter was an

accurate statement of trial counsel’s recollection of what occurred during the first

trial and that trial counsel believed he had “failed” Sims by stating to the trial

court that Sims “would ‘abide’ by the ruling re the mistrial.”

D.      Denial of 3.850 Motion

        The 3.850 court denied Sims’s ineffective assistance claim. At the outset,

the 3.850 court clarified that it need not determine whether Sims’s counsel had

consented to the mistrial because that question was already decided when

Florida’s First DCA on direct appeal affirmed the trial court’s denial of Sims’s

motion to dismiss. Therefore, the only issue before the 3.850 court was whether,

under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), trial

counsel’s consent constituted deficient performance that prejudiced Sims. The

3.850 court concluded that Sims had not shown deficient performance or

prejudice.

        As to performance, the 3.850 court found that Sims had not carried his

burden to show that his trial counsel’s “consent to a mistrial was deficient and not

                                            9
the product of a sound trial strategy.” The 3.850 court found that trial counsel’s

letter was a second-guessing of himself through hindsight, that Sims had presented

no evidence as to whether the first trial was going favorably or unfavorably at that

point in time and that Sims had not overcome the presumption that trial counsel’s

actions were reasonable, as follows:

             This letter serves only to prove that Trial Counsel has rehashed,
      rethought, and second guessed his decisions stemming from an
      unfavorable trial, which is consistent with his practice after all
      unsuccessful trial verdicts. As stated by the Florida Supreme Court, an
      attorney’s second guessing himself through the beneficial lens of
      hindsight is of little persuasion in those proceedings. Further, this Court
      points out that neither party secured the attendance of Trial Counsel to
      testify at the evidentiary hearing. Accordingly, there was no evidence
      presented regarding whether the trial was progressing favorably or
      unfavorably, whether the State had yet proven or not yet proven the
      elements of the crime, or whether Trial Counsel’s observations of the
      jury led him to believe a favorable verdict was more or less likely.
      Without evidence regarding the totality of the circumstances as they
      existed, this Court find that the Defendant has not overcome the
      presumption that Trial Counsel’s actions were reasonable and effective.

(Citation, quotation marks and footnote omitted).

      As to prejudice, the 3.850 court concluded that Sims had not shown that,

absent trial counsel’s consent to the mistrial, the State was barred from retrying

him. The 3.850 court noted that the trial court’s comments, both at the first trial

and at the hearing before the second trial, made clear that the trial judge

considered a mistrial manifestly necessary, whether or not Sims’s counsel

                                          10
consented, and that Sims had not called the trial judge to testify to the contrary.

The 3.850 court emphasized that the trial court’s denial of Sims’s motion to

dismiss on double jeopardy grounds was raised on direct appeal and affirmed. The

First DCA affirmed the denial of Sims’s 3.850 motion.

E.    Section 2254 Petition

      In June 2009, Sims filed his pro se § 2254 petition alleging that: (1) his

second trial violated the Double Jeopardy Clause; and (2) that his trial counsel was

ineffective for consenting to a mistrial at his first trial. The district court denied

Sims’s § 2254 petition. This Court granted a certificate of appealability (“COA”)

on the issue of “[w]hether Sims was denied effective assistance of counsel when

his attorney failed to object after the court sua sponte declared a mistrial.”

                                  II. DISCUSSION

A.    Ineffective Assistance of Counsel

      To establish constitutionally ineffective assistance, the defendant must show

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

prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To

establish deficient performance, the petitioner must show his counsel’s

performance was objectively unreasonable in light of prevailing professional

norms. Id. at 687-88, 104 S. Ct. at 2064-65. To satisfy Strickland’s prejudice

                                           11
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.” Id. at 694, 104 S. Ct. at 2068.

       Furthermore, a federal court may not grant habeas relief on ineffective

assistance claims that were previously decided in state court, unless the state court

decision was (1) “contrary to, or involved an unreasonable 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). Section

2254(d) “imposes a highly deferential standard for evaluating state-court rulings . .

. .” Hardy v. Cross, 565 U.S. —, 132 S. Ct. 490, 491 (2011) (quoting Felkner v.

Jackson, 562 U.S. —, 131 S. Ct. 1305, 1307 (2011)).2

       Our standard of review is “doubly deferential” when “a Strickland claim [is]

evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S.

111, 123, 129 S. Ct. 1411, 1420 (2009). “The question is not whether a federal

court believes the state court’s determination under the Strickland standard was



       2
         We review de novo the district court’s determination whether the state court acted
contrary to, or unreasonable applied, clearly established federal law or made an unreasonable
determination of the facts. Reed v. Sec’y, Fla. Dep’t of Corrs., 593 F.3d 1217, 1239 (11th Cir.),
cert. denied, 131 S. Ct. 177 (2010).

                                                12
incorrect but whether that determination was unreasonable – a substantially higher

threshold.” Id. (quotation marks omitted).

B.    Sims’s Claim

      Sims has not shown that the 3.850 court’s denial of his ineffective

assistance of trial counsel claim was contrary to, or an unreasonable application of,

Strickland or based on an unreasonable determination of the facts. Sims claims

that his trial counsel was ineffective for consenting, rather than objecting, to the

district court’s sua sponte declaration of a mistrial in the first trial. Sims’s

ineffective assistance claim rests on the assumption that if his trial counsel had

objected to the mistrial, the state trial court necessarily would have still granted a

mistrial, and Sims then would have prevailed on his subsequent motion to dismiss

on double jeopardy grounds. For several reasons, we cannot say the 3.850 court

unreasonably concluded that Sims had not shown deficient performance or

prejudice.

      First, there is no showing that if defense counsel had objected, the state trial

court would have still declared a mistrial to even create a double jeopardy issue.

      Second, even if the state trial court still would have declared a mistrial, the

state trial court can properly do so even over a defendant’s objection. In the case

of a mistrial, the double jeopardy bar to a second trial can be lifted either by the

                                           13
defendant’s consent to the mistrial or by the trial court’s finding, over the

defendant’s objection, that the mistrial is a “manifest necessity.” Oregon v.

Kennedy, 456 U.S. 667, 671-72, 102 S. Ct. 2083, 2087-88 (1982). When the

defendant does not consent, trial judges still have broad discretion to sua sponte

declare a mistrial “‘whenever, in their opinion, taking all the circumstances into

consideration, there is a manifest necessity for doing so.’” See Renico v. Lett, ___

U.S. ___, 130 S. Ct. 1855, 1863 (2010) (quoting United States v. Perez, 22 U.S. (9

Wheat.) 579, 580 (1824)). The trial court need not make an explicit finding of

manifest necessity or articulate on the record the factors that led to that

conclusion. Id. at 1863-64. “A trial judge properly exercises his discretion to

declare a mistrial if an impartial verdict cannot be reached, or if a verdict of

conviction could be reached but would have to be reversed on appeal due to an

obvious procedural error in the trial.” Illinois v. Somerville, 410 U.S. 458, 464, 93

S. Ct. 1066, 1070 (1973).3

       Third, in any event, Sims did not submit any evidence showing that no

reasonable attorney in his trial counsel’s shoes would have consented (or failed to


       3
         To the extent Sims argues on appeal that the 3.850 court unreasonably applied the
manifest necessity doctrine in analyzing whether the trial court’s denial of his motion to dismiss
violated his double jeopardy rights, this question is not within the scope of the COA. Thus, we
address only trial counsel’s failure to object to the district court’s sua sponte declaration of a
mistrial after a finding of manifest necessity.

                                                14
object) to the trial court’s sua sponte mistrial, especially given the strong evidence

against Sims at that point in time. Trial counsel’s correspondence says nothing

about the progress of the trial at that point in time or counsel’s decisionmaking or

counsel’s reasons for abiding by the trial court’s ruling. The letters do not even

admit that trial counsel consented to the mistrial or did so erroneously. Contrary

to Sims’s claim, the letters do not show trial counsel’s ignorance of the legal

standards applicable to double jeopardy and mistrials. As the 3.850 court

explained, these letters amount only to trial counsel’s “rehashing” with the benefit

of hindsight and do not prove that trial counsel’s consent (or failure to object) to

the trial court’s sua sponte declaration of a mistrial was objectively unprofessional

at the point in time it occurred.

      Moreover, we know from the record of the first trial that the State had

already presented sufficient evidence from Allen, Welch and Trooper Gill at that

point in time to convict Sims. The jury already had heard that Sims’s truck was

stopped in the middle of the road, that the victim saw someone slumped over the

steering wheel, that Sims was present at the scene and appeared impaired, that

Sims admitted he had been driving and that Sims’s blood-alcohol level still was

above the legal limit over four hours after the crash. The trial, if anything, was not

going favorably for Sims.

                                          15
      Under these circumstances, Sims simply did not present any evidence to

provide the kind of context that might rebut the presumption of reasonableness.

As such, we cannot say the 3.850 court unreasonably concluded that Sims did not

overcome the “strong presumption” that trial counsel’s conduct fell within the

wide range of reasonable professional assistance and, therefore, that Sims’ did not

carry his burden to show deficient performance.

      As to prejudice, the record, if anything, shows that the trial court declared

the mistrial sua sponte primarily based on manifest necessity due to the hospital

records, and not necessarily based on Sims’s consent. As the trial court explained

when it denied Sims’s motion to dismiss, the trial court’s decision to declare a

mistrial was based on the “totality of the situation” and because justice required a

mistrial to allow the parties to obtain “discovery and deal with it and then come

back and try the case.”

      For all of these reasons, the 3.850 court did not act contrary to, or

unreasonably apply, Strickland in rejecting Sims’s ineffective assistance of trial

counsel claim.

      AFFIRMED.




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