Shaun Frederick vs Dept of Corrections, Attorney General of the State of Florida

438 F. App'x 801
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 17, 2011
Docket10-14024
StatusUnpublished

This text of 438 F. App'x 801 (Shaun Frederick vs Dept of Corrections, Attorney General of the State of Florida) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shaun Frederick vs Dept of Corrections, Attorney General of the State of Florida, 438 F. App'x 801 (11th Cir. 2011).

Opinion

PER CURIAM:

Petitioner was convicted in a Florida state court of burglary of an unoccupied structure, two counts of kidnaping with a weapon, robbery with a weapon, and resisting an officer without violence. After exhausting his state remedies, he petitioned the district court for a writ of habeas corpus, 28 U.S.C. § 2254. The court denied relief, and he appeals its decision.

The district court issued a certificate of appealability on three issues:

1. Whether petitioner was denied effective assistance of counsel, where his lawyer failed to object and/or file a motion to dismiss the Amended Information.
2. Whether petitioner was denied effective assistance of counsel, where his lawyer failed to object to and/or otherwise preserve as error the court’s confusing and otherwise misleading instructions to the jury.
3. Whether petitioner was denied effective assistance of counsel, where his lawyer failed to discover that one of the petitioner’s prior convictions did not qualify as a predicate offense for purposes of his habitual felony offender enhancement.

In his brief on appeal, petitioner failed to brief the third issue. We therefore treat it as abandoned, Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.2008), and turn to the first two issues.

We review a district court’s denial of § 2254 habeas relief de novo. Gamble v. Sec’y Fla. Dep’t of Corr., 450 F.3d 1245, 1247 (11th Cir.2006). A federal, court may grant a writ of habeas corpus only if the decision of the state court adjudicating the petitioner’s claim (1) “was contrary to, or involved an unreasonable application of, clearly established Federal 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 [sjtate court proceeding.” 28 U.S.C. § 2254(d)(1), (2).

A state court’s decision is “contrary to” federal law if “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). A state court’s decision involves “an unreasonable application” of federal law if “the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. at 1523.

To prevail on a claim of ineffective assistance of counsel, the petitioner must demonstrate both (1) that his counsel’s performance was deficient, i.e., the performance fell below an objective standard of reasonableness, and (2) that he suffered prejudice as a result of that deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). In determining whether counsel gave adequate assistance, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. at 2066. Counsel’s per *803 formance is deficient only if it falls below the wide range of competence demanded of attorneys in criminal cases. Id. at 688-89, 104 S.Ct. at 2065. To make such a showing, the petitioner must demonstrate that “no competent counsel would have taken the action that his counsel did take.” United States v. Freixas, 332 F.3d 1314, 1319-20 (11th Cir.2003) (quotation omitted). A lawyer cannot be deficient for failing to raise a meritless claim. Freeman v. Atty. Gen. 536 F.3d 1225, 1233 (11th Cir.2008). Prejudice is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is probability sufficient to undermine confidence in the outcome.” Strickland 466 U.S. at 694, 104 S.Ct. at 2068.

In a § 2254 proceeding, the petitioner must do more than satisfy the Strickland standard; the petitioner must also show that the state court applied Strickland in an objectively unreasonable manner. Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.2004); Knowles v. Mirzayance, 556 U.S. 111, -, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009) (noting that the standard of review is “doubly deferential” when “a Strickland claim [is] evaluated under the § 2254(d)(1) standard”). With these principles in hand, we consider the two issues before us.

I.

Under Florida law, an information may be substantively amended during trial, even over the objection of the defense, in the absence of a showing of prejudice to the substantial rights of the accused. See State v. Anderson, 537 So.2d 1373, 1375-76 (Fla.1989).

Florida criminal law provides the following as to the crime of burglary:

[ (1) ](b) For offenses committed after July 1, 2001, “burglary” means: 1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter;
(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment ... if, in the course of committing the offense, the offender:
(b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon;
(3) Burglary is a felony of the second degree ... if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:
(c) Structure, and there is another person in the structure at the time the offender enters or remains;

Fla. Stat. § 810.02 (2007). As to lesser included offenses, Fla. R.Crim. P.

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Related

United States v. Dolores Freixas
332 F.3d 1314 (Eleventh Circuit, 2003)
Arthur D. Rutherford v. James Crosby
385 F.3d 1300 (Eleventh Circuit, 2004)
Gamble v. Secretary, Florida Department of Corrections
450 F.3d 1245 (Eleventh Circuit, 2006)
Timson v. Sampson
518 F.3d 870 (Eleventh Circuit, 2008)
Freeman v. Attorney General
536 F.3d 1225 (Eleventh Circuit, 2008)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Williams v. Taylor
529 U.S. 362 (Supreme Court, 2000)
Knowles v. Mirzayance
556 U.S. 111 (Supreme Court, 2009)
State v. Anderson
537 So. 2d 1373 (Supreme Court of Florida, 1989)

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Bluebook (online)
438 F. App'x 801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaun-frederick-vs-dept-of-corrections-attorney-general-of-the-state-of-ca11-2011.