Vito Paul Cito, III v. Secretary, Department of Corrections, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10052
Non-Argument Calendar
____________________
VITO PAUL CITO, III,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF
CORRECTIONS,
ATTORNEY GENERAL, STATE OF
FLORIDA,
Respondents-Appellees.
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2 Opinion of the Court 21-10052
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:17-cv-02752-CEH-TGW
____________________
Before WILLIAM PRYOR, Chief Judge, BRANCH and BRASHER,
Circuit Judges.
PER CURIAM:
Vito Paul Cito, III, a Florida prisoner, appeals
pro se the de-
nial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254.
Cito challenges the denial of state postconviction relief on his
claims that trial and appellate counsel were ineffective for not con-
testing jury instructions. Because the state courts did not unreason-
ably apply clearly established federal law to Cito’s claims, we af-
firm.
I. BACKGROUND
We divide the background into three parts. First, we de-
scribe Cito’s trial and direct appeal. Next, we describe Cito’s un-
successful state postconviction proceedings. Finally, we describe
Cito’s federal habeas corpus proceeding.
A. Cito’s Trial and Direct Appeal
The State of Florida tried Cito for the aggravated assault of
Lance Tubbs and for discharging a firearm from a vehicle within
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21-10052 Opinion of the Court 3
1,000 feet of Tubbs. Tubbs and multiple eyewitnesses to the inci-
dent testified that Cito insulted Tubbs’s mother inside her home
and their verbal altercation continued as the two men walked out-
side and Cito climbed into his vehicle. Tubbs chased Cito’s vehi-
cle on foot yelling threats at him. As Cito sped ahead, he dis-
played his revolver outside his driver’s side window, and then he
shot backwards at Tubbs, who was unarmed. Cito argued that he
shot at Tubbs in self-defense.
In closing statements, the prosecutor argued that Cito
“wasn’t worried” about Tubbs, who had “no hope of” and
“wasn’t going to catch” Cito to burgle his vehicle. The prosecutor
also argued that, although Tubbs had been “outside throwing his
hands, acting tough, [and] talking tough,” “[h]e had been feet
away from [Cito] the whole time” and he had not tried to hit Cito
inside or outside the Tubbs’ house. The prosecutor recounted
that Cito’s passenger testified he asked Cito why he was shooting
at Tubbs and Cito responded, “I will shoot anyone I want to. I
don’t care.”
The trial court instructed jurors that “[a]n issue in this case
is whether [Cito] acted in self-defense” and that he had “a defense
to . . . both charges . . . if the actions against Lance Tubbs resulted
from the justifiable use of deadly force.” The trial court told jurors
that, if they found Cito acted “in necessary self-defense, you must
find him not guilty.” It also instructed jurors that if “you have a
reasonable doubt . . . [about] whether the defendant was justified
in the use of deadly force, you should find [him] not guilty,” but if
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4 Opinion of the Court 21-10052
they made a contrary finding, they “should find him guilty if all
the elements of the [criminal] charge have been proved.”
The trial court instructed jurors about what constitutes jus-
tifiable use of deadly force as follows:
A person is justified in using deadly force only
if the defendant reasonably believes that force is nec-
essary to prevent imminent death or great bodily
harm to himself while resisting, one, another’s at-
tempt to murder him, two, any attempt to commit
burglary upon him, or three, any attempt to commit
burglary upon or in any vehicle occupied by him.
A person is justified in using deadly force if he
reasonably believes that such force is necessary to
prevent, one, imminent death or great bodily harm to
himself or another, or two, the imminent commis-
sion of burglary against himself or another.”
However, the use of deadly force is not justifi-
able if you find, one, Vito Paul Cito initially provoked
the use of force against himself, unless A, the force
asserted toward the defendant was so great that he
reasonably believed that he was in imminent danger
of death or great bodily harm and exhausted every
reasonable means to escape the danger other than us-
ing deadly force on Lance Tubbs; B, . . . [i]n good
faith, the defendant withdrew from physical contact
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21-10052 Opinion of the Court 5
with Lance Tubbs and clearly indicated to Lance
Tubbs that he wanted to withdraw and stop the use
of deadly force, but Lance Tubbs continued or re-
sumed the use of force.
The trial court instructed jurors they had to “judge [Cito’s use of
deadly force] by the circumstances by which he was surrounded
at the time the force was used.” And it explained that “[t]he dan-
ger facing [Cito] need not have been actual” but it “must have
been so real that a reasonably cautious and prudent person under
the same circumstances would have believed that the danger
could be avoided only through the use of that force.”
The trial court also instructed the jury about the right to
stand one’s ground if faced with imminent injury:
If the defendant was not engaged in an unlaw-
ful activity and was attacked in any place where he
had a right to be, he had no duty to retreat and had
the right to stand his ground and meet force with
force, including deadly force, if he reasonably be-
lieved that it was necessary to do so to prevent death
or great bodily harm to himself or another or to pre-
vent the commission of a forcible felony.
At Cito’s request, the trial court instructed the jury on at-
tempt and burglary. Initially, the trial court read the standard jury
instructions that the State had to prove beyond a reasonable
doubt that “the defendant” was the wrongdoer. Defense counsel
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6 Opinion of the Court 21-10052
objected to those instructions. The trial court discussed its plan to
reinstruct the jurors and Cito acknowledged he had no objection.
The trial court recalled the jurors and stated it had “read the
wrong names when it came to the definition of burglary and the
definition of attempt to commit a crime.” The trial court re-in-
structed jurors that the State had to prove beyond a reasonable
doubt that “Lance Tubbs” had attempted to commit burglary.
The jury found Cito guilty of both crimes and returned a
special verdict that he discharged a firearm during the aggravated
assault. The district court sentenced Cito to concurrent terms of
20 years for his two crimes.
Cito appealed, but he did not challenge the jury instruc-
tions. Cito argued, and the State agreed, that his sentence for dis-
charging a firearm was illegal because it exceeded the maximum
sentence of 15 years. The Second District Court of Appeal vacated
Cito’s sentence for his firearm offense and remanded for resen-
tencing.
Cito v. State, 150 So. 3d 829 (Fla. Dist. Ct. App. 2014).
B. Cito’s Unsuccessful State Postconviction Proceedings
Cito moved
pro se for postconviction relief on the ground
that trial counsel was ineffective.
See Fla. R. Crim. P. 3.850. Cito
argued that counsel should have challenged the jury instructions
requiring proof of attempted burglary “beyond a reasonable
doubt” and the prosecutor’s closing argument that the victim
posed Cito no danger negated his theory of self-defense. But the
state postconviction court denied Cito’s motion on the ground
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21-10052 Opinion of the Court 7
that “[t]rial counsel did his best, and was successful in ensuring
that the issue of self-defense was presented to the jury.” The state
appellate court affirmed summarily.
Cito v. State, 208 So. 3d 78
(Fla. Dist. Ct. App. 2015),
cause dismissed sub nom. Cito v. Jones,
No. SC17-1023 (Fla. June 22, 2017).
Cito next petitioned
pro se for postconviction relief on the
ground that appellate counsel should have challenged the jury in-
structions.
See Fla. R. Crim. P. 9.141(d). The state appellate court
summarily denied Cito’s petition,
Cito v. State, 229 So. 3d 327
(Fla. Dist. Ct. App. 2016), and the Florida Supreme Court dis-
missed Cito’s appeal.
Cito v. Jones, No. SC17-1023 (Fla. June 22,
2017).
Cito tried twice to relitigate his claim of ineffectiveness of
trial counsel. The state court denied Cito’s second motion for
postconviction relief on the ground that his claim was procedur-
ally barred, Fla. R. Crim. P. 3.850(h)(2), and the state appellate
court affirmed summarily,
Cito v. State, 250 So. 3d 13 (Fla. Dist.
Ct. App. 2018). The Florida Supreme Court dismissed Cito’s peti-
tion for a writ of habeas corpus, Fla. R. Crim. P. 9.100, on the
ground that “relief [was] not authorized.”
Cito v. State, No. SC17-
1023 (Fla. June 22, 2017).
C. Federal Habeas Corpus Proceeding
Cito petitioned the district court for a writ of habeas corpus
and repeated his arguments that trial and appellate counsel were
ineffective for failing to object to the jury instructions.
See 28
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8 Opinion of the Court 21-10052
U.S.C. § 2254. After the State responded, the district court denied
the petition. The district court ruled that Cito was not prejudiced
by trial counsel’s failure to object to the jury instruction or by ap-
pellate counsel’s failure to raise an unpreserved argument that did
not amount to fundamental error.
We granted Cito a certificate of appealability to address his
claims of ineffective assistance of counsel.
See 28 U.S.C. § 2253(c).
III. STANDARD OF REVIEW
We review
de novo the grant or denial of a petition for a
writ of habeas corpus.
Reed v. Sec’y, Fla. Dep’t of Corr., 767 F.3d
1252, 1260 (11th Cir. 2014). The Antiterrorism and Effective
Death Penalty Act “imposes a highly deferential standard for eval-
uating state-court rulings.”
Id. at 1261 (quoting
Renico v. Lett, 559
U.S. 766, 773 (2010)). A state prisoner is entitled to a writ of ha-
beas corpus only if the state court reached a decision that “in-
volved an unreasonable application of . . . clearly established Fed-
eral law.” 28 U.S.C. § 2254(d)(1). That is, the state court must
have “identifie[d] the correct governing legal principle from the
Supreme Court’s decisions but unreasonably applie[d] that princi-
ple to the facts of the prisoner’s case.”
Reed, 767 F.3d at 1260 (in-
ternal quotation marks omitted and alterations adopted). “[A]n
unreasonable application of . . . [a Supreme Court decision] must
be objectively unreasonable, not merely wrong; even clear error
will not suffice.”
White v. Woodall, 572 U.S. 415, 419 (2014) (in-
ternal quotation marks omitted). The prisoner “must show that
the state court’s ruling on the claim . . . was so lacking in
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21-10052 Opinion of the Court 9
justification that there was an error well understood and compre-
hended in existing law beyond any possibility for fairminded disa-
greement.”
Harrington v. Richter, 562 U.S. 86, 103 (2011).
III. DISCUSSION
Cito maintains that trial and appellate counsel were ineffec-
tive in failing to contest the jury instructions about justifiable use
of force. He argues that the instructions erroneously required
proof that Tubbs attempted to commit burglary against him, and
he argues that his trial and appellate counsel should have chal-
lenged that error.
Cito must prove that his counsel’s performance was defi-
cient and that he was prejudiced by the deficient performance.
Strickland v. Washington, 466 U.S. 668, 687 (1984). The prejudice
component requires that Cito prove “there is a reasonable proba-
bility that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.”
Id. at 694. “A reasona-
ble probability” “requires a ‘substantial,’ not just ‘conceivable,’
likelihood of a different result.”
Cullen v. Pinholster, 563 U.S. 170,
189 (2011). And Cito must overcome the “doubly deferential”
standard that applies in a habeas corpus proceeding by proving “it
was necessarily unreasonable for . . . [the Florida courts] to con-
clude . . . that he had failed to undermine confidence in the jury’s
[verdicts].”
Id. at 190.
Even if we assume, like the district court, that trial counsel
performed deficiently by not objecting to the poorly-worded jury
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instructions, the state court reasonably determined that Cito was
not prejudiced by counsel’s oversight. Cito could not have pre-
vailed on his claim of self-defense because his use of deadly force
was not justifiable. As the state trial court instructed Cito’s jury,
Florida law allows the use of deadly force only if “[a] person is not
engaged in an unlawful activity and . . . is attacked . . . [and] rea-
sonably believes [using deadly force] is necessary . . . to prevent
death or great bodily harm to himself . . . .” Fla. Stat. § 776.013(3)
(effective Oct. 1, 2005, to June 19, 2014). Multiple eyewitnesses
testified that Cito shot at Tubbs from a distance when Tubbs was
incapable of harming Cito. There is no reasonable probability that
the jury would have found that Cito acted in self-defense. And be-
cause, in Florida, appellate counsel could not raise on appeal an
unpreserved issue that did not amount to fundamental error,
see
Valentine v. State, 98 So. 3d 44, 57–58 (Fla. 2012), the state court
reasonably rejected Cito’s claim of ineffective assistance of appel-
late counsel too.
IV. CONCLUSION
We AFFIRM the denial of Cito’s petition for a writ of ha-
beas corpus.
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