Wellington Farmer v. Secretary, Florida Department

Filing

Opinion issued by court as to Appellant Wellington L. Farmer. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15982
Non-Argument Calendar
________________________
D.C. Docket No. 5:08-cv-00292-RS-MD

WELLINGTON L. FARMER,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(May 20, 2013)
Before HULL, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
Wellington Farmer, a Florida prisoner convicted of several offenses,
including aggravated battery on a law enforcement officer, appeals pro se the

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district court’s denial of his federal habeas petition, filed under 28 U.S.C. § 2254.
We granted a certificate of appealability (“COA”) on the following issues:
(1)

Whether the state post-conviction court unreasonably applied
the standard in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984), in finding that defense
counsel was not ineffective for failing to object when the trial
court instructed the jury regarding the “harm theory” of battery,
which was not charged in the information.

(2)

With respect to Claim 1-G of Farmer’s § 2254 petition:
(A) Whether the district court correctly determined that the state
court’s denial of relief was not entitled to deference under
28 U.S.C. § 2254(d); and
(B) Whether Farmer is entitled to relief on his claim that counsel
was ineffective in failing to argue, when moving for a
judgment of acquittal, that the evidence was insufficient to
establish the “touch-or-strike” theory of battery.

For the reasons set forth below, we affirm the denial of Farmer’s § 2254 petition.
I.
In 2008, Farmer filed a § 2254 habeas petition, raising numerous claims for
relief, including that his trial counsel was ineffective for: (1) failing to object when
the trial court instructed the jury regarding an alternative theory of aggravated
battery that was not charged in the information (“Claim 1-B-A”); and (2) failing to
move for a judgment of acquittal (“JOA”) by arguing that there was insufficient
evidence to support his aggravated battery conviction (“Claim 1-G”). Specifically,
as to Claim 1-B-A, Farmer alleged that the information did not follow the language
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of the aggravated battery statute, as it excluded the element of “intentionally
caused bodily harm.” However, the trial court’s jury instruction on aggravated
battery included the bodily harm element, and Farmer’s counsel did not object. As
to prejudice, he argued that counsel’s failure to object to the jury instruction:
(1) lowered the state’s burden of proof; (2) precluded appellate review of the jury
instruction; and (3) called the jury’s verdict into question. As to Claim 1-G,
Farmer asserted that the state failed to present any evidence to support his
aggravated battery conviction, as the alleged victim’s own testimony established
that Farmer did not touch or strike him. Although counsel moved for a JOA, he
failed to make a reasoned argument challenging the sufficiency of the evidence.
In response, the state argued that Farmer failed to properly exhaust Claims
1-B-A and 1-G of his § 2254 petition because he did not brief them to the state
appellate court after the denial of his Fla.R.Crim.P. 3.850 motion. With its
response, the state introduced the underlying state court record, which showed that
Farmer was charged with: (1) attempted second degree murder; (2) aggravated
battery on a law enforcement officer; (3) aggravated fleeing or attempting to elude
a law enforcement officer; and (4) resisting a law enforcement officer with
violence. Specifically, as to aggravated battery, the information charged that,
Farmer. . . did actually and intentionally touch or strike Joe Nugent, a
law enforcement officer, against the will [of Officer] Nugent, while
[Officer] Nugent was engaged in the lawful performance of a duty and
while [Farmer] knew that [Officer] Nugent was a law enforcement
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officer, and in committing said battery did use a motor vehicle, a
deadly weapon. . .
At trial, the state presented several witnesses, including Officer Nugent, who
testified regarding an incident involving Farmer and Officer Nugent. In sum,
evidence showed that, after Officer Nugent grabbed onto Farmer’s car in an
attempt to apprehend him, Farmer began driving with Officer Nugent hanging
“half in and half out” of the car, despite Officer Nugent’s pleas for Farmer to stop,
until Officer Nugent eventually dropped to the ground. After the state rested its
case, Farmer’s counsel moved for a JOA, arguing that, if the court declined to
dismiss the charge for attempted second degree murder, then the court must
dismiss the aggravated battery charge based on double jeopardy. Ultimately, the
state agreed to drop the attempted murder charge, and the trial court denied the
JOA motion as to the other counts. In his closing argument, Farmer’s counsel
argued that Farmer had acted in self defense.
At the close of trial, without objection, the trial court instructed the jury that,
before it could find Farmer guilty of aggravated battery on a police officer, the
state must prove certain elements beyond a reasonable doubt. Specifically, the
court stated, “[t]he first element is a definition of battery. []Farmer, the
[d]efendant, intentionally touched or struck Joe Nugent against his will, or
intentionally caused bodily harm to Joe Nugent.” The jury convicted Farmer on all
the charges presented.
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After an unsuccessful direct appeal, Farmer filed a Rule 3.850 motion for
post-conviction relief, raising numerous claims, including substantially the same
claims that he raised as Claims 1-B-A and 1-G in his federal habeas petition. After
an evidentiary hearing, the state court denied relief. As to counsel’s failure to
object to the jury instruction on aggravated battery, the court found that the
evidence presented at trial was more than sufficient to allow the jury instruction
and, moreover, “counsel had no reason to object because the evidence presented
was consistent with the jury instruction.” Further, the court found that, even if
counsel erred by failing to object, the error “did not rise to the level that the
proceedings would have been different, nor that the defendant was fundamentally
prejudiced.” As to Farmer’s claim regarding counsel’s motion for a JOA, the court
found that his claim was meritless because his counsel had moved for a JOA.
Farmer appealed and, in his counseled appeal brief, he argued only that he received
ineffective assistance of counsel regarding his conviction for aggravated fleeing or
attempting to elude. The state appellate court affirmed.
In the instant § 2254 proceeding, Farmer filed a reply to the state’s response,
arguing that, as to exhaustion, he sought to appeal all of his Rule 3.850 claims but,
through no fault of his own, counsel prevented him from doing so. In support,
Farmer attached numerous exhibits, including correspondence between himself and
his Rule 3.850 counsel, Victoria Wiggins. Wiggins and Farmer each moved for
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the state appellate court to allow Farmer to file a supplemental pro se brief, but the
court denied those motions.
In a report and recommendation (“R&R”), the magistrate judge found that
Farmer had failed to exhaust the claims that he did not present to the Florida
appellate court. The district court vacated the R&R and remanded to the
magistrate for further consideration in light of Hitchcock v. Sec’y, Dep’t of Corr.,
360 F. App’x 82 (11th Cir. 2010), an unpublished decision from this Court.
Subsequently, the magistrate issued another R&R, finding that, applying the
reasoning in Hitchcock, the state’s procedural default defense should be rejected.
Specifically, Hitchcock involved a similar procedural history to the instant case
and, in Hitchcock, this Court concluded that Hitchcock’s claims were not
procedurally defaulted. The district court adopted the second R&R, rejected the
state’s procedural default argument, and ordered the parties to respond to the
merits of Farmer’s claims.
After the state’s response and Farmer’s reply, the magistrate issued a third
R&R, rejecting his claims on the merits. As to Claim 1-B-A, the magistrate found
that it must give deference to the state court’s factual finding that the evidence at
trial rendered the jury instruction appropriate and, thus, counsel had no reason to
object. Moreover, Farmer had not shown that the state court’s decision was
objectively unreasonable. Even conceding that counsel’s conduct was deficient,
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Farmer could not show that he was prejudiced by the error. First, Farmer’s claim
that counsel failed to preserve this issue for appeal is inaccurate because, under
Florida law, a claim of instructional error may be raised on appeal even absent a
contemporaneous objection if a fundamental error occurred. Second, applying the
“actual prejudice” standard and the appropriate deference, the record could support
the state court’s conclusion that the trial error, if any, was harmless. By asserting
self defense as an affirmative defense to aggravated battery, Farmer conceded that
he used his car, a deadly weapon, to strike a law enforcement officer, but he argued
that he used reasonable force. Thus, counsel could not be ineffective for failing to
object to an allegation that was essential to Farmer’s defense. In sum, the state
court’s ruling was not contrary to or an unreasonable application of federal law,
and it was not based on an unreasonable determination of the facts.
As to Claim 1-G, the magistrate first found that the state post-conviction
court failed to address Farmer’s claim on the merits and, as such, the magistrate
reviewed the claim de novo. However, Farmer’s claim, that his counsel was
ineffective for failing to move for a JOA on the aggravated battery count based on
sufficiency grounds, was meritless. Specifically, viewing the evidence in a light
most favorable to the prosecution, a rational trier of fact could find that the
evidence supported a guilty verdict based on the charged elements of touching or
striking Officer Nugent by using a deadly weapon. Thus, a motion for a JOA on
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sufficiency grounds would have failed, and counsel could not have been ineffective
for failing to file a meritless motion. Over Farmer’s objections, the district court
adopted the magistrate’s third R&R and denied his § 2254 petition.
II.
In its response brief, the state asserts that the claims on which we have
granted a COA are barred from federal habeas review because Farmer failed
properly to exhaust them in state court. Specifically, after the state post-conviction
court held an evidentiary hearing, Farmer did not reassert the instant ineffective
assistance claims to the state appellate court and, as such, those claims were
abandoned. On appeal, Farmer does not address the issue of exhaustion.
Exhaustion of state remedies presents a mixed question of law and fact,
subject to de novo review. Fox v. Kelso, 911 F.2d 563, 568 (11th Cir. 1990).
Likewise, whether a petitioner has procedurally defaulted a particular claim is a
mixed question of law and fact, which we review de novo. Bailey v. Nagle, 172
F.3d 1299, 1306 (11th Cir. 1999). We will not review issues that are outside the
scope of the COA. Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1356 (11th Cir.
2007). However, where the COA has been issued as to the merits of a claim, we
have construed the COA to encompass a threshold procedural issue. See Wright v.
Sec’y for Dep’t of Corr., 278 F.3d 1245, 1258 (11th Cir. 2002).

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As an initial matter, although we issued a COA on the merits of Claims 1-BA and 1-G of Farmer’s § 2254 petition, we construe the COA to encompass the
threshold procedural issue of exhaustion. See id. It appears that Farmer failed
adequately to exhaust these issues in state court because he did not brief them on
appeal from the denial of his Rule 3.850 motion. See Ward v. Hall, 592 F.3d 1144,
1156 (11th Cir. 2010) (holding that, to exhaust state remedies, the petitioner must
fairly present every issue in his federal petition to the state’s highest court, either
on direct appeal or on collateral review). Moreover, any further attempts by
Farmer to exhaust his claims in state court would be futile because he could have
pursued the claims during his first Rule 3.850 proceeding. See Bailey, 172 F.3d at
1305 (stating that we may treat unexhausted claims as procedurally defaulted if it
is clear from state law that any future attempts at exhaustion would be futile);
Frazier v. State, 898 So.2d 1183, 1183-84 (Fla. Dist. Ct. App. 2005) (explaining
that a successive Rule 3.850 motion is subject to dismissal if it raises grounds that
could have been raised in a prior Rule 3.850 motion).
Before the district court, Farmer argued that he attempted to preserve all of
his habeas claims during his state post-conviction proceedings. In support, Farmer
presented evidence that Wiggins, his state post-conviction counsel, refused to
include the claims in the appeal brief, despite Farmer’s requests that Wiggins do
so. Additionally, Farmer and Wiggins both requested permission for Farmer to
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present additional claims in a supplemental pro se brief, but the state appellate
court denied those requests. Farmer appeared to argue, essentially, that the
procedural default of his claims should be excused because his failure to preserve
the claims was due to his counsel’s refusal to brief the claims. However, a
“defendant cannot base his cause and prejudice for procedural default on his
attorney’s performance unless the attorney’s performance was constitutionally
ineffective,” and a “petitioner cannot establish constitutionally ineffective
assistance of counsel in state post-conviction proceedings because there is no
constitutional right to an attorney in such proceedings.” Jimenez v. Fla. Dep’t of
Corr., 481 F.3d 1337, 1344 (11th Cir. 2007). Because Farmer is not entitled to
effective assistance of counsel in a state habeas proceeding, he could not establish
cause for the procedural default by relying on Wiggin’s decision not to brief the
claims. See id.
In reaching the merits of Farmer’s claims, the district court relied on
Hitchcock, an unpublished, nonbinding, decision, in which we declined to apply
the procedural bar under similar factual circumstances. See Hitchcock, 360 F.
App’x at 83-88. Nonetheless, research does not reveal a published case in which
we have held that counsel’s refusal to brief an issue on appeal was sufficient cause
to excuse the procedural default of an unexhausted claim. Regardless, for the

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reasons discussed below, even if Farmer had adequately exhausted his claims, the
district court did not err in denying his claims on the merits.
III.
We review the district court’s denial of a habeas petition de novo, the district
court’s factual findings for clear error, and mixed questions of law and fact de
novo. McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). “An ineffective
assistance of counsel claim is a mixed question of law and fact subject to de novo
review.” Id.
If a state court has adjudicated a claim on the merits, a federal court may
grant habeas relief only if the decision of the state court (1) “was contrary to, or
involved an unreasonable application of, clearly established [f]ederal law, as
determined by the Supreme Court,” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the [s]tate court
proceeding.” 28 U.S.C. § 2254(d)(1), (2). A state court’s factual findings are
presumed correct absent clear and convincing evidence to the contrary. 28 U.S.C.
§ 2254(e)(1).
For an ineffective-assistance-of-counsel claim raised in a § 2254 petition, the
inquiry turns upon whether the relevant state court decision was contrary to, or an
unreasonable application of Strickland. See Cullen v. Pinholster, 563 U.S. ___,
___, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011). To succeed on an ineffective11

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assistance claim under Strickland, the § 2254 petitioner must show that his Sixth
Amendment right to counsel was violated because (1) his attorney’s performance
was deficient, and (2) the deficient performance prejudiced his defense.
Strickland, 466 U.S. at 687, 697, 104 S.Ct. at 2064, 2070. Counsel’s performance
is deficient only if it falls below the range of competence demanded of attorneys in
criminal cases. Id. at 687-88, 104 S.Ct. at 2064. 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. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. “[S]ome conceivable effect on the outcome of the proceeding” is
insufficient to show prejudice. Id. at 693, 104 S.Ct. at 2067. “When a defendant
challenges a conviction, the question is whether there is a reasonable probability
that, absent the errors, the factfinder would have had a reasonable doubt respecting
guilt.” Id. at 695, 104 S.Ct. at 2068-69. To make this determination, we review
“the totality of the evidence before the judge or jury.” Id., 104 S.Ct. at 2069.
Because judicial review of counsel’s performance already “must be highly
deferential,” a federal habeas court’s review of a state court decision denying a
Strickland claim is thus “doubly deferential.” See Cullen, 563 U.S.at ___, 131
S.Ct. at 1403. The pertinent inquiry “is whether there is any reasonable argument

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that counsel satisfied Strickland’s deferential standard.” Harrington v. Richter,
562 U.S. __, ___, 131 S. Ct. 770, 788, 178 L.Ed.2d 624 (2011).
Florida courts have recognized that “due process prohibits a defendant from
being convicted of a crime not charged in the information or indictment.” Crain v.
State, 894 So.2d 59, 69 (Fla. 2009). For this reason, under Florida law, it is
“fundamental error” to instruct the jury on a theory of the crime not charged in the
information, where evidence and argument are presented on the uncharged theory.
Brown v. State, 41 So.3d 259, 262 (Fla. Dist. Ct. App. 2010). When constitutional
rights are implicated, the Florida Supreme Court has considered issues that were
not preserved by an objection during trial. Crain, 894 So.2d at 68-69.
Under Florida law, the offense of simple battery can be proven based on one
of two theories. See Fla. Stat. § 784.03(1)(a). The first theory, referred to as the
“touch-or-strike theory,” is satisfied when the defendant “[a]ctually and
intentionally touches or strikes another person against the will of the other.” Id. A
second theory, referred to as the “harm theory,” is satisfied when the defendant
“intentionally causes bodily harm to another person.” Id. The offense of
aggravated battery occurs when the defendant uses a deadly weapon in committing
a simple battery. See Fla. Stat. § 784.045(1)(a)(2).
In this case, as the state concedes, the trial court improperly instructed the
jury on both the touch-or-strike theory and the harm theory of battery, as the
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indictment alleged only that Farmer intentionally touched or struck Officer Nugent
against his will. See Brown, 41 So.3d at 262. Thus, it appears that counsel was
likely deficient for failing to object to the erroneous jury instruction. Regardless,
the state court properly applied the two-prong test under Strickland and found that,
even assuming that counsel’s performance was deficient, Farmer could not show
prejudice. In light of the double deference that we afford to a state court’s
adjudication of an ineffective-assistance-of-counsel claim, Farmer has not
established that there is no reasonable argument that counsel satisfied Strickland’s
deferential standard. See Cullen, 563 U.S.at ___, 131 S.Ct. at 1403; Harrington,
562 U.S. at ___, 131 S.Ct. at 788. Specifically, viewing the record evidence as a
whole, it does not appear that, but for trial counsel’s failure to object to the jury
instruction, Farmer would not have been convicted. See Strickland, 466 U.S. at
694-95, 104 S.Ct. at 2068-69. Here, evidence at trial was sufficient to establish
that Farmer committed aggravated battery under a touch-or-strike theory of battery.
Although Farmer did not touch or strike Officer Nugent with his body, Farmer
continued driving his car while Officer Nugent was hanging from the car and
asking Farmer to stop. Farmer’s operation of the car caused Officer Nugent’s legs
to drag the ground, and forced Officer Nugent to drop from a moving car, hit the
ground, and roll several times in the road. Moreover, eyewitnesses stated that the
car ran over both of Officer Nugent’s legs.
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While the same evidence may have also supported a jury finding that Farmer
intentionally caused Officer Nugent bodily harm, the jury verdict stated that it
found Farmer guilty of aggravated battery as charged. Moreover, the trial
evidence supported a verdict that, as charged in the information, Farmer used his
car to touch-or-strike Officer Nugent against his will or, by extension, to cause
Officer Nugent to strike the ground. Further, on appeal, Farmer asserts that the
state did not present evidence that Officer Nugent sustained injuries, which
undermines his claim that the jury convicted him based on a theory that he
intentionally caused bodily harm to Officer Nugent.
Notably, it is also possible that, even if counsel had objected to the jury
instruction, the prosecutor, in response, would have moved to amend the
information to include the harm theory. Under Florida law, trial judges have
discretion to allow mid-trial amendments “unless there is a showing of prejudice to
the substantial rights of the defendant.” See State v. Clements, 903 So.2d 919, 921
(Fla. 2005) (emphasis removed). Here, the trial court may have allowed the
amendment because the evidence suggesting that Farmer intentionally caused
Officer Nugent to strike the pavement also suggested that Farmer caused Officer
Nugent to suffer bodily harm. Thus, presumably, defense counsel would not have
approached the trial any differently if the harm theory had been charged from the

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outset, and the trial court may have concluded that a mid-trial amendment would
not affect Farmer’s substantial rights.
Additionally, Farmer argues that counsel’s failure to object precluded
appellate review of the jury instruction. However, this argument is misplaced, as
Florida appellate courts may review a claim of fundamental error, even if it was
not preserved by an objection. See Crain, 894 So.2d at 69; Brown, 41 So.3d at
262. In sum, Farmer has not shown a reasonable likelihood that, if counsel had
challenged the jury instruction for including the harm element, the outcome of
Farmer’s trial would have been different. See Strickland, 466 U.S. at 694-95, 104
S.Ct. at 2068-69. Thus, under the deferential standard that applies to a state court’s
adjudication of a claim of ineffective assistance of counsel, the state court’s
decision did not result in an unreasonable application of Strickland, such that there
was no reasonable argument to support it. See Cullen, 563 U.S.at ___, 131 S.Ct. at
1403; Harrington, 562 U.S. at ___, 131 S. Ct. at 788.
IV.
Under § 2254(d), if a state court has adjudicated a claim on the merits, a
federal court may grant habeas relief only if the decision of the state court (1) “was
contrary to, or involved an unreasonable application of, clearly established
[f]ederal law, as determined by the Supreme Court,” or (2) “was based on an

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unreasonable determination of the facts in light of the evidence presented in the
[s]tate court proceeding.” 28 U.S.C. § 2254(d)(1), (2).
As an initial matter, the state correctly notes that Farmer’s appeal brief does
not specifically address whether the district court erred in determining that, as to
Claim 1-G of his federal habeas petition, the state court’s decision was not entitled
to deference. Thus, Farmer has abandoned any argument on this issue. See
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (holding that issues not
raised by a pro se litigant in his initial brief before this Court are deemed
abandoned). Regardless, the district court correctly found that the state postconviction court did not reach the merits of Claim 1-G of Farmer’s § 2254 petition.
In both his Rule 3.850 motion and his federal habeas petition, Farmer specifically
asserted that his trial counsel was ineffective for failing to move for a JOA by
challenging the sufficiency of the evidence to support the aggravated battery
charge. However, in its decision, the state post-conviction court mischaracterized
this claim as asserting that counsel did not file a motion for a JOA on any basis,
which was a claim that was contradicted by the record. Thus, the state court
misconstrued the substance of Farmer’s claim—that counsel should have
specifically raised a sufficiency challenge, and, thus, the court failed to address its
merits. As such, the district court did not err in finding that the state court’s
decision was not entitled to deference under § 2254(d).
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V.
The Due Process Clause of the Fourteenth Amendment requires the state to
prove each element of the offense charged beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560 (1979). Under
Jackson, federal courts must look to state law for the substantive elements of the
criminal offense, but to federal law for the determination of whether the evidence
was sufficient under the Due Process Clause. Coleman v. Johnson, 566 U.S. __,
__, 132 S.Ct. 2060, 2064, 182 L.Ed.2d 978 (2012). As discussed above, under
Florida law, to prove aggravated battery under the touch-or-strike theory, the state
must prove that the defendant: (1) intentionally touched or struck another person;
(2) against the will of that person; and (3) used a deadly weapon in doing so. See
Fla. Stat. §§ 784.03(1)(a), 784.045(1)(a)(2). Moreover, under Florida law, a motor
vehicle can qualify as a “deadly weapon” for purposes of Florida’s aggravatedbattery statute. See, e.g., Clark v. State, 746 So.2d 1237, 1239 (Fla. 1999). For
federal sufficiency review, the relevant question is whether, “after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Coleman, 566 at ___, 132 S.Ct. at 2064 (emphasis in original).
In denying Farmer’s § 2254 petition, the district court did not err in finding
that counsel was not ineffective for failing to argue, in support of the motion for a
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JOA, that the evidence was insufficient to establish a “touch-or-strike” theory of
battery.

Specifically, viewing the evidence in a light most favorable to the

prosecution, a rational trier of fact could have found that Farmer (1) intentionally
touched or struck Officer Nugent; (2) against Nugent’s will; (3) by using a deadly
weapon—Farmer’s car. See Fla. Stat. §§ 784.03(1)(a), 784.045(1)(a)(2); Clark,
746 So.2d at 1239.

Although Officer Nugent testified that he initially made

contact with Farmer’s car in an attempt to apprehend Farmer, he also testified that
he begged Farmer to stop the car so that he would not be killed. However, despite
Officer Nugent’s requests, Farmer continued to drive the car, while Officer
Nugent’s feet dragged the across the ground. Farmer’s conduct forced Officer
Nugent to drop to the ground from a moving car and roll several times across the
ground. Thus, while Farmer did not touch or strike Officer Nugent with his hands
or feet or drive his car into Officer Nugent, he used his car—a deadly weapon—to
cause Officer Nugent to strike the ground. Moreover, Officer Nugent’s testimony
that he begged Farmer to stop supported the jury’s conclusion that Officer
Nugent’s contact with the car was against his will.
Because a reasonable trier of fact could have found Farmer guilty of battery
under a touch-or-strike theory, Farmer’s trial counsel was not deficient for failing
to raise a sufficiency challenge in support of the motion for a JOA. See Strickland,
466 U.S. at 687-88, 104 S.Ct. at 2064. Regardless, for the same reasons, there
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appears to be no reasonable likelihood that, if counsel had raised such an argument,
Farmer’s trial would have resulted in an acquittal. See id. at 694-95, 104 S.Ct. at
2067-68. Thus, the district court did not err in finding that under Strickland,
Farmer failed to establish that his trial counsel was deficient or that he was
prejudiced as a result.
For the foregoing reasons, we affirm the district court’s denial of Farmer’s
§ 2254 petition.
AFFIRMED.

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JORDAN, Circuit Judge, concurring:
I concur in all of the majority’s opinion, except for the statement in Part III
that a state court’s decision on the prejudice prong of Strickland v. Washington,
466 U.S. 668 (1984), is entitled to double deference on federal habeas review. In
my view, we give only single deference (the deference required by AEDPA) to a
state court’s prejudice ruling. See Evans v. Secretary, 703 F.3d 1316, 1334-36
(11th Cir. 2013) (en banc) (Jordan, J., concurring). Applying that single deference,
habeas relief is not warranted for the reasons stated on pages 14-16 of the majority
opinion.

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