Julio Garcia, IV v. Secretary, Florida Department of Corrections, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12461
Non-Argument Calendar
____________________
JULIO GARCIA, IV,
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
D.C. Docket No. 8:17-cv-02374-KKM-AAS
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2 Opinion of the Court 21-12461
____________________
Before L UCK , L AGOA , and ANDERSON, Circuit Judges.
PER C URIAM :
Julio Garcia appeals the district court’s denial of his 28 U.S.C.
section 2254 habeas petition. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Garcia was charged in 2013 with three counts of aggravated
battery with a deadly weapon under Florida Statutes section
784.045. The charges stemmed from a fight between Garcia and
three other men—Jesus Rivera, Justin Hageman, and Tyson Dun-
lap—outside a Polk County bar.
At trial, the state introduced evidence that Garcia started the
fight after a drunken argument outside the bar. During the fight,
Garcia used a knife to stab Mr. Dunlap in the side and slice Mr.
Rivera across the face and hand. Garcia’s defense theory was that
the victims attacked first, and he used the knife to defend himself
and his friends.
During the jury charge conference, the state trial court of-
fered to instruct the jury on the “justifiable use of deadly force” de-
fense but, the court explained, the jury didn’t need an additional
instruction for the justifiable use of non-deadly force. Garcia said
that he would “just like to keep that in there,” referring to the non-
deadly force instruction. The state objected because the evidence
was undisputed Garcia had used deadly force and a second
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21-12461 Opinion of the Court 3
instruction for non-deadly force would confuse the jury. In re-
sponse, the state trial court said it was not inclined to include the
non-deadly force instruction but would reserve ruling to research
the issue.
With the benefit of some extra time, the state trial court de-
clined to give the additional non-deadly force instruction. Garcia
did not object to the final instructions as read to the jury.
The jury convicted Garcia of two counts of aggravated bat-
tery. After denying his new trial motion, the state trial court sen-
tenced Garcia to two consecutive fifteen year prison terms.
On appeal, Garcia argued that the state trial court erred in
denying his new trial motion because the verdict was against the
greater weight of the evidence. The state appeals court disagreed
and affirmed Garcia’s conviction.
Garcia then petitioned the state appeals court for habeas re-
lief because his appellate counsel was ineffective. His appellate
counsel was ineffective, Garcia claimed, because counsel didn’t ar-
gue on appeal that the state trial court erred by leaving out the non-
deadly force instruction from the jury charge. The state appeals
court denied the habeas petition without an opinion.
Garcia raised the same claim in his federal habeas petition
under section 2254. Again, Garcia alleged that his appellate counsel
was ineffective because counsel did not raise the state trial court’s
error in failing to instruct the jury on the justifiable use of non-
deadly force.
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4 Opinion of the Court 21-12461
The district court denied Garcia’s federal habeas petition.
Whether appellate counsel was ineffective, the district court ex-
plained, depended on whether an appeal based on the non-deadly
force instruction would have been successful. And that issue, in
turn, depended on a question of state law that the state appeals
court necessarily answered by denying Garcia’s habeas petition.
The district court reasoned that the denial of Garcia’s state habeas
petition indicated either that Garcia had failed to preserve for direct
appeal the argument that the state trial court erred in failing to give
the non-deadly force instruction, or that, even if the jury instruc-
tion issue was preserved, it would have failed on the merits. Either
way, because Garcia’s claim failed as a matter of state law, the dis-
trict court concluded, his appellate counsel was not ineffective for
failing to raise it.
After the district court denied the section 2254 petition, Gar-
cia appealed. We issued a certificate of appealability on the ques-
tion whether appellate counsel was constitutionally ineffective for
failing to argue that Garcia was entitled to a non-deadly force jury
instruction.
STANDARD OF REVIEW
We review de novo the district court’s denial of a section
2254 habeas petition. Reed v. Sec’y, Fla. Dep’t of Corr., 593 F.3d 1217,
1239 (11th Cir. 2010). A state prisoner may obtain federal habeas
relief “only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). But where, as here, a state prisoner seeks review of an
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21-12461 Opinion of the Court 5
issue that state courts have already adjudicated, he must also show
that the state courts’ judgment “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as de-
termined by the Supreme Court of the United States” or depended
on “an unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” Id. § 2254(d).
DISCUSSION
The Sixth Amendment guarantees criminal defendants the
right to effective assistance of counsel. Strickland v. Washington, 466
U.S. 668, 686 (1984). A defendant can show he was denied effective
assistance where (1) his “counsel’s performance was deficient,” and
(2) “the deficient performance prejudiced [his] defense.” Id. at 687.
When we review a habeas petition under section 2254(d),
“[t]he question is not whether a federal court believes the state
court’s determination under the Strickland standard was incorrect
but whether that determination was unreasonable—a substantially
higher threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)
(marks and citation omitted). Our review here is thus “doubly def-
erential” to the state appeals court’s decision denying Garcia’s
claim of ineffective assistance of appellate counsel. Id. And here,
there is yet a third layer of deference: because the effectiveness of
Garcia’s counsel depended on the validity of a state-law defense,
we “must defer to the state’s construction of its own law” in deter-
mining whether the state court’s assessment of ineffective assis-
tance was reasonable. Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295
(11th Cir. 2017).
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6 Opinion of the Court 21-12461
The state appeals court denied Garcia’s habeas petition with-
out explanation. Without a reasoned decision from the state court,
we must (1) “determine what arguments or theories” it could have
relied on, and then (2) decide “whether it is possible fairminded ju-
rists could disagree that those arguments or theories are incon-
sistent with the holding in a prior decision of the Supreme Court.”
Id. (quoting Harrington v. Richter, 562 U.S. 86, 98 (2011) (alteration
accepted). We therefore discuss the two possible rationales the
state appeals court could have relied on to deny Garcia’s ineffective
assistance claim: (1) Garcia did not preserve the issue for appeal;
and (2) he was not entitled to the non-deadly force instruction as a
matter of state law.
First, the state appeals court could have reasonably con-
cluded that appellate counsel wasn’t deficient because Garcia, as a
matter of state law, hadn’t properly objected to the exclusion of the
non-deadly force instruction at trial. See Castor v. State, 365 So. 2d
701, 703 (Fla. 1978) (“Where the alleged error is giving or failing to
give a particular jury instruction, we have invariably required the
assertion of a timely objection. . . . [O]bjections must be explicit
[and] direct the attention of the trial judge to the purported error
in a way which will allow him to respond in a timely fashion.”). At
trial, Garcia said that he “would just like to keep” the non-deadly
force instruction and that he’d “still be asking for it” after the trial
court indicated it was inclined to omit the instruction. Later, Gar-
cia didn’t raise any objection to the final jury instructions—which
lacked a non-deadly force instruction.
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21-12461 Opinion of the Court 7
Based on this record, the state appeals court reasonably
could have concluded that Garcia did not preserve his jury instruc-
tion issue as a matter of state law. Without a proper objection,
appellate counsel would not have been deficient for failing to raise
the jury instruction issue on appeal. See Pinkney, 876 F.3d at 1298
(explaining that “a petitioner cannot show prejudice from the fail-
ure of appellate counsel to raise an issue that would not have been
considered on appeal because it was not raised in the trial court”);
Diaz v. Sec’y, Dep’t of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005)
(“Under Florida law, an error that passed without objection cannot
be raised on appeal; appellate counsel, therefore, is not ineffective
for failure to raise a meritless argument.” (citation omitted)).
Second, the state appeals court could have determined that
Garcia’s appellate counsel wasn’t deficient because, on the merits,
Garcia wasn’t entitled to the non-deadly force instruction under
Florida law. In Florida, the use of a knife in an altercation may
constitute non-deadly force or deadly force, depending on the cir-
cumstances. See Larsen v. State, 82 So. 3d 971, 974 (Fla. Dist. Ct.
App. 2011) (“A knife can be used with deadly or without deadly
force.”). But a defendant is not entitled to a jury instruction on a
particular defense unless there is at least some “evidence in the rec-
ord to support it.” See Cliff Berry, Inc. v. State, 116 So. 3d 394, 407
(Fla. Dist. Ct. App. 2012).
At Garcia’s trial, the undisputed evidence showed that he
used a knife to stab Mr. Dunlap in the side and slash Mr. Rivera
across the face and hand. The state appeals court reasonably could
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8 Opinion of the Court 21-12461
have concluded that this undisputed evidence only supported the
use of deadly force instruction rather than the non-deadly force in-
struction. See Thompson v. State, 257 So. 3d 575, 581 (Fla. Dist. Ct.
App. 2018) (finding that the use of a 15-inch-blade sword to slash
and stab a victim’s torso was deadly force as a matter of law);
Larsen, 82 So. 3d at 975 (explaining that a sharp knife used to strike
the victim in the neck constituted deadly force as a matter of law);
Waldo v. State, 728 So. 2d 280, 281 (Fla. Dist. Ct. App. 1999) (holding
that the act of thrusting a knife into a victim’s chest constituted
deadly force as a matter of law), quashed on other grounds, 759 So. 2d
674 (Fla. 2000). If so, then it reasonably could have denied Garcia’s
state habeas petition because “[a]ppellate counsel is not ineffective
for failing to raise claims ‘reasonably considered to be without
merit.’” United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000)
(quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)).
Because “state courts are the final arbiters of state law, . . .
federal habeas courts should not second-guess them on such mat-
ters.” Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997). So, if
the state appeals court found that appellate counsel was not defi-
cient because state law foreclosed a successful appellate argument
regarding the jury instruction, we will not second guess that judg-
ment. And, if these were the grounds the state appeals court relied
on, it didn’t unreasonably apply Strickland’s deficient performance
prong in doing so. See Freeman v. Att’y Gen., 536 F.3d 1225, 1233
(11th Cir. 2008) (“A lawyer cannot be deficient for failing to raise a
meritless claim.”).
AFFIRMED.
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