James Marshall v. Department of Corrections

Filing

Opinion issued by court as to Appellant James C. Marshall. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11740
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-20557-PAS

JAMES C. MARSHALL,
Petitioner-Appellant,
versus
DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 26, 2016)
Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:

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Petitioner James Marshall, proceeding pro se, appeals the district court’s
denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. On
appeal, Petitioner argues that his appellate counsel was ineffective for failing to file
a supplemental brief challenging the manslaughter jury instruction given by the
trial court. After careful review, we affirm.
I.

BACKGROUND
A.

State Criminal Conviction and Direct Appeal

On April 2, 2004, Shemeria Brown awoke in the middle of the night to
sounds of her grandmother, Marie Sanders, screaming. When Brown went to
investigate, she saw Petitioner with his hands around Sanders’s neck. Brown
called the police and tried to force Petitioner off of Sanders, but she was
unsuccessful. At some point, Sanders stopped screaming and fell to the floor.
After she fell, Petitioner continued to strangle her. When police arrived, Petitioner
still had his hands around Sanders’s neck and officers had to intervene. Officers
administered CPR but were not able to resuscitate Sanders.
The State of Florida subsequently charged Petitioner in an information with
second-degree murder pursuant to Florida Statute § 782.04(2) for the strangulation
death of Marie Sanders. At trial, Petitioner requested an instruction on the lesserincluded offense of manslaughter. Following closing arguments, the trial court
instructed the jury on second-degree murder and the lesser-included offense of
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manslaughter. The trial court then stated that in order “to convict for second
degree murder it is not necessary for the State to prove that the defendant had an
intent to cause death.” Consistent with the 2006 standard jury instructions, the trial
court instructed the jury that in order to find Petitioner guilty of manslaughter, the
jury had to find beyond a reasonable doubt that: “One, Marie Sanders is dead.
Two, [Petitioner] intentionally caused the death of Marie Sanders; or the death of
Marie Sanders was caused by the culpable negligence of [Petitioner].” The trial
court defined culpable negligence as “a course of conduct showing a reckless
disregard of human life, or of the safety of persons exposed to its dangerous
effects, or such an entire want of care as to raise the presumption of a conscious
indifference to consequences.”
The jury found Petitioner guilty of second-degree murder, and the trial
court sentenced him to 45 years’ imprisonment. On May 2, 2008, Petitioner
filed an appeal in the Third District Court of Appeal (“Third DCA”), arguing
that the evidence was insufficient to support the second-degree murder
conviction, the trial court erred by failing to conduct various hearings and
evaluations, and the trial court erred by not requiring a proper presentence
report.
In February 2009, while Petitioner’s appeal was pending in the Third
DCA, Florida’s First District Court of Appeal (“First DCA”) held that the
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lesser-included offense of manslaughter does not require an intent to kill.
Montgomery v. State, 70 So. 3d 603, 604, 606–07 (Fla. 1st DCA 2009)
(“Montgomery I”). The First DCA explained that the 2006 standard
manslaughter-by-act jury instruction, which provided that the defendant
“intentionally caused [the victim’s death],” improperly imposed an
additional element of intent to kill, and such an error constituted
fundamental error. Id. at 70 So. 3d at 607–08. Based on the conflict among
the Florida intermediate appellate courts, the First DCA also certified the
following question to the Florida Supreme Court: “Is the state required to
prove that the defendant intended to kill the victim in order to establish the
crime of manslaughter by act?” Id. at 608.
One month later, on March 25, 2009, the Third DCA per curiam
affirmed Petitioner’s conviction and sentence without a written opinion.
Petitioner filed a motion for rehearing, and on July 22, 2009, the Third DCA
withdrew its prior opinion, and substituted a new opinion addressing
Petitioner’s argument that the trial court erred by not having a Faretta 1
hearing. The Third DCA affirmed Petitioner’s conviction and sentence, and
the mandate issued on August 7, 2009. Petitioner filed a motion for belated
discretionary review with the Florida Supreme Court, but later moved to

1

Faretta v. California, 422 U.S. 806 (1975).
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voluntarily dismiss that motion. Petitioner’s appellate counsel filed a
petition for writ of certiorari with the U.S. Supreme Court, which was denied
on April 19, 2010. See Marshall v. Florida, 130 S. Ct. 2103 (2010).
In the meantime, Florida’s Second District Court of Appeal (“Second
DCA”) and the Third DCA determined that giving the standard
manslaughter-by-act jury instruction that included an intent to kill did not
constitute fundamental error. Valdes-Pino v. State, 23 So. 3d 871, 972 (Fla.
3d DCA 2009); Nieves v. State, 22 So. 3d 691, 692 (Fla. 2d DCA 2009).
The Florida Supreme Court took up this issue in April 2010, nearly one year
after the Third DCA affirmed Petitioner’s conviction and sentence. State v.
Montgomery, 39 So. 3d 252, 259 (Fla. 2010). In Montgomery, the Florida
Supreme Court held that the standard manslaughter-by-act jury instruction
improperly included an intent to kill and use of such an instruction
constituted fundamental error. Id. at 259–60. Shortly thereafter, the Third
DCA determined that the use of this manslaughter-by-act instruction did not
constitute fundamental error if the jury was also provided an instruction
regarding culpable negligence. Cubelo v. State, 41 So. 3d 263, 267–68 (Fla.
3d DCA 2010).
B.

State Post-Conviction Proceedings

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In December 2010, Petitioner filed a pro se state petition for a writ of
habeas corpus.2 He asserted that his appellate counsel performed deficiently
by failing to seek supplemental briefing on the issue of whether the
manslaughter-by-act jury instruction provided by the trial court constituted
fundamental error. Because the First DCA had decided that a manslaughterby-act jury instruction that included an intent to kill constituted fundamental
error, Petitioner argued that he was prejudiced by his appellate counsel’s
failure to raise this issue while his appeal was pending. In July 2011, the
Third DCA summarily denied Petitioner’s habeas petition. Marshall v.
State, 75 So. 3d 286 (Fla. 3d DCA 2011).
C.

Federal Habeas Petition

In 2012, Petitioner filed a pro se § 2254 petition, raising several
grounds for relief. Of relevance, Petitioner argued that his appellate counsel
was ineffective for failing to argue on direct appeal that the trial court
provided an erroneous manslaughter-by-act jury instruction. He asserted
that he was prejudiced by his counsel’s failure to seek supplemental briefing
on this issue following the First DCA’s issuance of Montgomery I during the
pendency of his direct appeal.
2

Petitioner also filed a Florida Rule of Appellate Procedure 3.850 post-conviction motion raising
the same claim—that appellate counsel was ineffective for failing to appeal the manslaughter
jury instruction as fundamental error. The trial court dismissed this claim, so that it could be
properly raised in a state petition for a writ of habeas corpus.
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The magistrate judge issued a Report and Recommendation (“R&R”),
recommending denying the petition. As to Petitioner’s ineffective-assistance
claim, the magistrate judge concluded that even if appellate counsel were
deficient for failing to file a supplemental brief following the First DCA’s
decision in Montgomery I, Petitioner could not show that he was prejudiced
because the Third DCA shortly thereafter held that the manslaughter-by-act
jury instruction at issue in Montgomery I was not fundamental error.
Moreover, although the Florida Supreme Court eventually held that a
manslaughter-by-act jury instruction including an intent to kill constituted
fundamental error, the Third DCA later determined that the error was not
fundamental if the trial court also instructed the jury on culpable negligence,
as the trial court did in Petitioner’s case. The magistrate judge therefore
concluded that the state court’s denial of Petitioner’s claim was not contrary
to, or an unreasonable application of, clearly established federal law.
After considering Petitioner’s objections, the district court affirmed the R&R
in part, but referred the case back to the magistrate judge to consider Petitioner’s
ineffective-assistance claim in light of the Florida Supreme Court’s decision in
Haygood v. State, 109 So. 3d 735, 740–41 (Fla. 2013), which held that the
manslaughter instruction containing an element of intent to kill was fundamental

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error, and was not cured by a subsequent instruction on manslaughter by culpable
negligence.
In a supplemental R&R, the magistrate judge concluded that the state court’s
rejection of Petitioner’s ineffective-assistance claim was not contrary to, or an
unreasonable application of, clearly established federal law because Petitioner’s
appellate counsel was not unreasonable for failing to anticipate the change in
Florida law regarding the manslaughter instruction. Indeed, Petitioner’s direct
appeal proceedings had concluded long before the Florida Supreme Court’s
decisions in Montgomery II and Haygood. Moreover, even after the Florida
Supreme Court determined that the instruction constituted fundamental error, the
Third DCA repeatedly held that the trial court’s use of the erroneous jury
instruction was cured where the trial court also instructed the jury on culpable
negligence.
Over Petitioner’s objections, the district court adopted the supplemental
R&R and denied Petitioner’s § 2254 petition. However, the district court granted
Petitioner a certificate of appealability on his ineffective-assistance claim, stating
that “[a] reasonable jurist might find that appellate counsel’s failure to raise
Montgomery I constituted ineffective assistance of counsel.”
II. DISCUSSION
A.

Applicable Standard
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We review a district court’s denial of a habeas petition under § 2254 de
novo. Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1245 (11th Cir.
2014), cert. denied, 135 S. Ct. 1562 (2015). Although we review the district
court’s factual findings for clear error, we review its rulings on questions of law
and mixed questions of law and fact de novo. Id.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets
forth a standard that makes granting habeas relief difficult on a claim that the state
court has adjudicated on the merits. See White v. Woodall, 572 U.S. __, 134 S. Ct.
1697, 1702 (2014). Under AEDPA, a federal court may only grant habeas relief on
a claim that was adjudicated on the merits if the state court’s decision “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States” or “was 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).
B.

Ineffective Assistance of Appellate Counsel

Petitioner asserts that the district court erred in denying his § 2254 petition
because his appellate counsel rendered ineffective assistance by failing to
challenge the trial court’s manslaughter-by-act jury instruction following the First
DCA’s decision in Montgomery I. To establish ineffective assistance of counsel, a
§ 2254 petitioner must show that (1) counsel’s performance was deficient, falling
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below an objective standard of reasonableness, and (2) the petitioner suffered
prejudice as a result of the deficient performance. Strickland v. Washington, 466
U.S. 668, 687–88 (1984). Prejudice requires showing “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. Because a § 2254 petitioner
must establish both Strickland prongs to prevail on an ineffective-assistance claim,
a court need not consider both prongs if the petitioner fails to show either deficient
performance or prejudice. Cox v. McNeil, 638 F.3d 1356, 1362 (11th Cir. 2011).
In the present case, the Third DCA denied Petitioner’s ineffectiveassistance claim without explanation. See Marshall v. State, 75 So. 3d 286
(Fla. 3d DCA 2011). Because we interpret the Third DCA’s decision as a
denial on the merits, it is entitled to deference under § 2254(d). See Wright
v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002)
(concluding that state court’s summary denial of claim is considered an
adjudication on the merits for purposes of § 2254(d)(1)). Petitioner must
therefore show that there was “no reasonable basis” for the state court’s
decision. See Wilson v. Warden, Ga. Diagnostic Prison, __ F.3d __, 1410681, manuscript op. at 14–15 (11th Cir. Aug. 23, 2016) (“Where a state
court’s decision is unaccompanied by an explanation,” a petitioner must
show “there was no reasonable basis for the state court to deny relief.”
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(quotations omitted)). Petitioner has not disputed any facts, and therefore
any claim for relief must be based on whether the state court’s ruling was
contrary to, or an unreasonable application of, clearly established federal
law. See 28 U.S.C. § 2254(d)(1).
“It is well established that the Supreme Court’s decision in Strickland is the
controlling legal authority to be applied in ineffective assistance of counsel
claims.” Sullivan v. DeLoach, 459 F.3d 1097, 1108 (11th Cir. 2006) (quotations
omitted); Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (“Claims of
ineffective assistance of appellate counsel are governed by the same standards
applied to trial counsel under Strickland.”). Under Strickland’s performance
prong, we presume counsel’s performance was “within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688–89. And in the
context of a direct appeal, appellate counsel does not have a duty to raise every
non-frivolous issue, as an effective attorney will winnow out the weaker
arguments, even if they have some merit. Philmore, 575 F.3d at 1264.
Here, Petitioner has not shown that the state court’s denial of his ineffectiveassistance claim was contrary to, or an unreasonable application of, clearly
established federal law. See Early v. Packer, 537 U.S. 3, 8 (2002) (concluding that
§ 2254(d) does not require the state court to cite to a Supreme Court decision, so
long as the state court’s reasoning does not contradict any Supreme Court
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decisions). Petitioner argues that his appellate counsel was ineffective for failing
to argue that the trial court’s manslaughter-by-act jury instruction was erroneous.
However, at the time Petitioner filed his direct appeal in May 2008, neither the
Florida Supreme Court nor any Florida appellate court had deemed the instruction
invalid. It was not until February 2009, while Petitioner’s direct appeal was
pending, that the First DCA determined that the standard manslaughter jury
instruction constituted fundamental error. See Montgomery I, 70 So. 3d at 607.
Even assuming that appellate counsel is required to keep abreast of relevant case
law during the pendency of an appeal, Montgomery I was a decision of the First
DCA, not the Third DCA where Petitioner’s appeal was pending. See Pardo v.
State, 596 So. 2d 665, 667 (Fla. 1992) (“[A]s between District Courts of Appeal, a
sister’s circuit’s opinion is merely persuasive.”). What’s more is that Montgomery
I was distinguishable from the facts of the present case because the trial court in
Montgomery I only provided the jury with the manslaughter-by-act instruction
containing the intent-to-kill element. See Montgomery I, 70 So. 3d at 603–04. It
did not also instruct the jury on manslaughter by culpable negligence, as the trial
court did in the present case. See id. Because Montgomery I had no precedential
authority in the Third DCA, and because the facts of the present case were
distinguishable from Montgomery I, the state court could have reasonably

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determined that appellate counsel’s failure to file supplemental briefing based on
Montgomery I did not fall below the objective standard of reasonableness. 3
Furthermore, effective representation does not require an attorney to
anticipate changes in the law. See 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 of how the law may develop.” (quotations omitted)). Again, no
court had even considered the manslaughter-by-act jury instruction issue when
appellate counsel filed Petitioner’s initial brief. Further, the only district court of
appeal to consider the issue during the pendency of Petitioner’s appellate
proceedings was not the court where Petitioner filed his direct appeal. See
Montgomery I, 70 So. 3d at 607–08. Moreover, the Florida Supreme Court did not
determine that the manslaughter jury instruction given during Petitioner’s trial—
which included both the instruction on the element of intent to kill and
manslaughter by culpable negligence—was erroneous until nearly four years after
Petitioner’s conviction and sentence were affirmed. See Haygood, 109 So. 3d at
740–41. Accordingly, Petitioner’s appellate counsel was not ineffective for failing
3

To the extent Petitioner relies on Florida appellate court decisions in support of his argument
that counsel performs deficiently by failing to raise favorable issues decided in other Florida
intermediate appellate courts during the pendency of a direct appeal, his reliance is misplaced.
See Rambaran v. Sec’y, Dep’t of Corrs., 821 F.3d 1325, 1333 (11th Cir. 2016) (explaining that
the decision of a state intermediate appellate court does not clearly establish federal law for
purposes of § 2254).
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to anticipate, and challenge on appeal, that the manslaughter jury instruction given
during Petitioner’s trial would eventually be deemed improper. See Rambaran,
821 F.3d at 1334 (affirming denial of petitioner’s § 2254 petition raising a claim
that appellate counsel was ineffective for failing to challenge Florida’s
manslaughter-by-act jury instruction because “[n]o holding of the Supreme Court
clearly establishes that in order to perform with the ‘wide range of reasonable
professional assistance,’ counsel must accurately predict how the law will turn out
or hedge every bet in hope of a favorable development.” (citation omitted)).
Because Petitioner’s appellate counsel did not perform deficiently, Petitioner
cannot show that the state court’s denial of his claim was incorrect, much less that
it involved an unreasonable application of clearly established federal law.
III. CONCLUSION
For the reasons stated above, we affirm the denial of Petitioner’s § 2254
petition for a writ of habeas corpus.
AFFIRMED.

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