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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-13331 Non-Argument Calendar ________________________
D.C. Docket No. 1:15-cv-22522-KMW
WILLIE WIGGINS,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(March 12, 2019)
Before WILLIAM PRYOR, ANDERSON, and JULIE CARNES, Circuit Judges.
PER CURIAM: Case: 17-13331 Date Filed: 03/12/2019 Page: 2 of 18
Petitioner Willie Wiggins, a Florida prisoner proceeding pro se, appeals the
district court’s denial of his petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254. On appeal, Petitioner argues that his trial counsel rendered
ineffective assistance by providing inadequate advice regarding the State’s pre-trial
plea offer. He also argues that the trial court erred by not declaring a mistrial
based on a comment made by the prosecutor during closing arguments that he
alleges violated his due process rights. After careful review, we affirm.
I. BACKGROUND
A. State Conviction and Post-Conviction Proceedings
In February 2009, Petitioner was charged in an information with (1) armed
robbery with a firearm, in violation of Florida Statutes §§ 812.13(2)(A), 775.087,
and (2) possession of a firearm by a convicted felon, in violation of Florida
Statutes §§ 790.23(1), 775.087.
At a pre-trial hearing, the trial court explained that, in addition to the present
charges of robbery with a firearm and possession of a firearm by a convicted felon,
Petitioner had five other pending criminal cases whose charges included attempted
armed robbery, possession of a firearm by a convicted felon, robbery with a
firearm, and aggravated assault with a firearm. As to the present armed robbery
charge, the trial court explained that Petitioner faced a possible sentence of up to
life imprisonment as a habitual violent felony offender and a mandatory life
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sentence as a prison releasee reoffender. As to the present felon-in-possession
charge, the trial court explained that Petitioner faced up to 30 years’ imprisonment
as a habitual felony offender and a 15-year mandatory minimum sentence as a
prison releasee reoffender. The State, however, had offered Petitioner a global
plea deal to close all of his pending cases, in exchange for a 15-year sentence as a
habitual violent felony offender, with 10 years’ imprisonment followed by 5 years’
probation. The trial court repeated this offer to Petitioner, explained his trial
rights, and then gave Petitioner time to discuss the State’s plea offer with his
attorney.
Following a recess, Petitioner’s trial counsel informed the court that
Petitioner did not want to accept the State’s plea offer. The prosecutor then
summarized the evidence against Petitioner as follows. Petitioner entered a
Goodwill Store, pulled out a firearm, and asked the cashier for money. The cashier
later identified Petitioner by the tattoos on his neck. Police recovered 15 latent
fingerprints from the Goodwill Store and of the 2 that were usable, neither matched
Petitioner’s fingerprints.
Petitioner’s trial counsel explained that the cashier’s description of Petitioner
was vague and that only one of the two eyewitnesses identified Petitioner in the
photo line-up. Trial counsel also informed the court that he had a recorded phone
call between a private investigator and the two eyewitnesses, in which one witness
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stated that she had guessed on the photo line-up and the other said that she did not
see the robber’s face. Trial counsel also intended to call Petitioner’s girlfriend and
niece to testify that he had obtained the neck tattoos—which were relied on by one
eyewitness to identify him—after the incident in question.
The trial court thereafter confirmed with Petitioner that he was rejecting the
State’s offer, which would have closed out all of the cases against him. Petitioner
confirmed that he had spoken to his attorney about the plea offer and that he was
rejecting it. The prosecutor declined Petitioner’s counteroffer to a deal involving
seven years’ imprisonment. Petitioner acknowledged that he understood the State
would not make any other plea offers.
Prior to trial, Petitioner moved to suppress the statement of the store cashier,
Barbara Velasquez, who had identified Petitioner as the robber. He also moved to
suppress the testimony of the detective who conducted the photo line-up. The trial
court denied the motion. Trial counsel then indicated that Petitioner was willing to
accept a plea and asked the prosecutor whether the original plea offer was
available. The prosecutor increased the offer to 20 years’ imprisonment followed
by 5 years of probation. Petitioner rejected the offer.
At trial, the cashier testified that she was shown a photo line-up
approximately two months after the robbery. She did not see the robber in this
line-up. When officers showed her a second line-up, she identified Petitioner, but
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told the officers that she needed to see a picture of his neck because she had
observed that the robber had neck tattoos—a “C” and an “E” on the right side and
a cursive “M” on the left side. After being shown a picture of Petitioner’s neck,
the cashier identified the tattoos as those she had seen on the robber’s neck. She
stated that she did not observe any tattoos on Petitioner’s hands. Before the close
of the State’s case-in-chief, Petitioner displayed his neck tattoos for the jury.
During closing arguments, the prosecutor summarized the evidence and
focused on the cashier’s identification of Petitioner based on his neck tattoos.
When it was defense counsel’s turn, he stated that the cashier had testified that the
robber did not have tattoos on his hands, but that it was clear when Petitioner
displayed his neck tattoos for the jury that he had tattoos all over his hands. In
rebuttal, the prosecutor explained that the jury had seen the tattoos on Petitioner’s
hands, but that three years had passed since the robbery and it was unclear when he
had gotten the hand tattoos.
After the jury retired for deliberations, Petitioner’s trial counsel moved for a
mistrial based on the prosecutor’s suggestion on rebuttal that Petitioner could have
gotten the hand tattoos in the three years since the robbery. Trial counsel argued
that this statement was improper given that the prosecutor knew that Petitioner had
been in custody for the past three years. The trial court denied the motion, noting
that many people get tattoos in prison and that Petitioner was not prejudiced by the
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prosecutor’s comment. The jury found Petitioner guilty of robbery with a firearm
and the trial court sentenced him to life imprisonment.
On appeal, Petitioner argued in relevant part that the trial court erred in
denying his motion for a mistrial on the ground that the prosecutor improperly
argued that Petitioner’s hand tattoos were obtained after the robbery. Specifically,
Petitioner argued that the prosecutor’s comment was not based on the trial
evidence and that it encouraged the jury to engage in speculation. The Florida
appellate court summarily affirmed Petitioner’s conviction and sentence in a per
curiam opinion.
Petitioner later filed a motion for post-conviction relief pursuant to Florida
Rule of Criminal Procedure 3.850. He argued that his trial counsel was ineffective
for advising him that the State’s evidence was weak and that he should reject the
plea offer. The state post-conviction court denied Petitioner’s 3.850 motion,
concluding in relevant part that Petitioner was “fully engaged in the plea
negotiations, and knowingly accepted the risks associated with multiple trials.”
The court further determined that trial counsel’s view of the strengths and
weaknesses of the case was reasoned and did not prejudice Petitioner. The Florida
appellate court affirmed in a per curiam decision without a written opinion.
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B. Federal Habeas Petition
In June 2015, Petitioner filed the present § 2254 petition, raising several
claims. As relevant here, Petitioner argued that the trial court erred in denying his
motion for a mistrial because the State had violated his due process rights by
implying that his hand tattoos were obtained after the robbery. He also asserted
that his trial counsel rendered ineffective assistance by misadvising him about the
State’s plea offer. Specifically, he argued that his trial counsel incorrectly advised
him to reject the State’s offer. He also argued that trial counsel inaccurately
described the offer as a 15-year mandatory minimum rather than a 10-year
sentence with 5 years of probation. He contended that he would have taken the
plea offer if he had been advised correctly.
The magistrate judge issued a Report and Recommendation (“R&R”),
recommending the denial of Petitioner’s § 2254 petition. First, the magistrate
judge concluded that the state trial court did not abuse its discretion by denying
Petitioner’s motion for a mistrial because the prosecutor’s comments regarding
Petitioner’s hand tattoos were a fair response to trial counsel’s argument that the
victim’s identification was questionable because she had not observed any hand
tattoos. As to Petitioner’s ineffective-assistance claim, the magistrate judge
determined that Petitioner was well aware that he faced a sentence of life
imprisonment if he went to trial. The magistrate judge concluded that Petitioner’s
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conviction did not render trial counsel’s advice concerning the strength of the
State’s case unreasonable. Accordingly, the magistrate judge recommended that
the district court deny the § 2254 petition.
Over Petitioner’s objections, the district court adopted the R&R and denied
the petition. However, the district court determined that reasonable jurists could
debate the merits of whether Petitioner’s due process rights were violated by the
prosecutor’s comments during closing arguments and whether trial counsel
rendered ineffective assistance when advising him about the State’s plea offer.
Accordingly, the district court granted a certificate of appealability as to those two
issues.
II. DISCUSSION
A. General Principles
We review a district court’s denial of a § 2254 habeas petition de novo.
Madison v. Comm’r, Ala. Dep’t of Corr., 761 F.3d 1240, 1245 (11th Cir. 2014).
Although we review the district court’s factual findings for clear error, we review
de novo its rulings on questions of law and mixed questions of law and fact. Id.
An ineffective assistance claim “presents a mixed question of law and fact that we
review de novo.” Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 1254, 1261 (11th
Cir. 2014).
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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, 134 S. Ct. 1697, 1702
(2014). Under AEDPA, a federal court may only grant habeas relief on a claim if
the state court’s decision “was contrary to, or involved an unreasonable application
of, clearly established Federal law” 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).
A state court decision is “contrary to” clearly established 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 [the
Supreme Court] on a set of materially indistinguishable facts.” Wellington v.
Moore, 314 F.3d 1256, 1260 (11th Cir. 2002) (quotation marks omitted). A state
court decision constitutes an “unreasonable application” of clearly established
federal law, where the court identifies the correct governing principles, but
unreasonably applies those principles to a petitioner’s case. Id. at 1261. “This
Court has stressed that in applying AEDPA deference federal courts are not to take
a magnifying glass to the state court opinion or grade the quality of it.” Meders v.
Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1350 (11th Cir. 2019).
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When conducting federal habeas review, a federal court must identify the
last state court decision that adjudicated the claim on the merits. Marshall v. Sec’y,
Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). To constitute an
adjudication on the merits, a state court need not provide an explanation for its
decision. See Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245, 1254–55 (11th
Cir. 2002) (concluding that a state court’s summary denial of a claim is considered
an adjudication on the merits for purposes of § 2254(d)(1)).
In Wilson v. Sellers, 138 S. Ct. 1188 (2018), the Supreme Court held that,
when a state court’s adjudication on the merits has no reasoned opinion, a “federal
court should ‘look through’ the unexplained decision to the last related state-court
decision that does provide a relevant rationale. It should then presume that the
unexplained decision adopted the same reasoning.” Id. at 1192. That presumption
does not hold, however, “[w]here there are convincing grounds to believe the silent
court had a different basis for its decision than the analysis followed by the
previous court . . . .” Id. at 1197. Moreover, because Wilson concerned which
state-court decision a federal court should review, not “the specificity or
thoroughness with which state courts must spell out their reasoning to be entitled to
AEDPA deference or the level of scrutiny that we are to apply to the reasons that
they give,” we have held that “[o]ur no-grading-papers, anti-flyspecking rule
remains the law of the circuit.” Meders, 911 F.3d at 1350.
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B. Ineffective-Assistance-of-Counsel Claim
Petitioner argues that his trial counsel was ineffective for providing
inadequate advice regarding the State’s plea offer before trial.
To establish ineffective assistance of counsel, a § 2254 petitioner must show
that (1) counsel’s performance was deficient, falling 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).
Counsel’s performance was deficient only if “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. To establish prejudice in the context of a rejected guilty
plea, the petitioner must establish a reasonable probability that: (1) he would have
accepted the plea but for counsel’s ineffective assistance; (2) the plea would have
been entered without the prosecution canceling it or the trial court refusing to
accept it; and (3) the plea would have resulted in a lesser charge or a lower
sentence. Missouri v. Frye, 566 U.S. 134, 147 (2012). “Because a petitioner’s
failure to establish either deficient performance or prejudice is fatal to a Strickland
claim, we need not address both Strickland prongs if the petitioner fails to satisfy
either one of them.” Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 1284 (11th
Cir. 2012).
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“The standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is doubly so.” Hittson v.
GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (quotation marks omitted).
The Supreme Court has stated that “[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) (quotation marks
omitted).
Here, the Florida appellate court summarily affirmed the Florida post-
conviction court’s denial of Petitioner’s ineffective-assistance claim, so we must
“look through” the appellate court’s unexplained decision and evaluate the post-
conviction court’s rationale for denying Petitioner’s claim. See Wilson, 138 S. Ct.
at 1192. The state post-conviction court concluded that counsel was not ineffective
for allegedly advising Petitioner to reject the State’s plea offer. Specifically, the
court determined that counsel’s view of the strengths and weaknesses of the case
was reasoned and, in light of Petitioner’s exposure, did not prejudice Petitioner.
The state post-conviction court’s denial of Petitioner’s claim was not
contrary to, or an unreasonable application of, clearly established federal law.
Rather, the state court correctly determined that counsel provided reasoned advice,
given that, from counsel’s perspective at the time of the plea offer, the State’s case
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suffered from several weaknesses. See Strickland, 466 U.S. at 689 (“A fair
assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.”). In addition to the fact that no fingerprints linked Petitioner to the crime,
counsel believed that he could secure witnesses who would testify that Petitioner’s
neck tattoos—which one eyewitness used to identify Petitioner as the robbery
suspect—were obtained after the incident in question. Moreover, one of the two
eyewitnesses had told a private investigator that she could not identify the suspect
and the other eyewitness said she had guessed during the photo line-up. The fact
that Petitioner ultimately lost at trial does not render counsel’s assessment of the
relative strengths of Petitioner’s case unreasonable. See id. at 689 (“It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or
adverse sentence . . . .”); see also Premo v. Moore, 562 U.S. 115, 132 (2011)
(“[H]indsight cannot suffice for relief when counsel’s choices were reasonable and
legitimate based on predications of how the trial would proceed.”).
Because Petitioner cannot prevail under Strickland’s deficient-performance
prong, we need not address the state court’s analysis of the prejudice prong. Pope,
680 F.3d at 1284. On this record, the state post-conviction court’s rejection of
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Petitioner’s ineffective-assistance-of-counsel claim was not contrary to, or an
unreasonable application of, Strickland.
C. Motion for a Mistrial
Petitioner also argues that the district court erred when it rejected his claim
that the prosecutor’s comment regarding his hand tattoos during closing arguments
violated his due process rights and that the trial court’s refusal to grant a mistrial
based on those statements failed to remedy that violation. As noted, Petitioner
challenged the trial court’s denial of his motion for a mistrial based on the
prosecutor’s comment on direct appeal, but the Florida appellate court summarily
affirmed the conviction.
Thus, the Florida trial court and the Florida appellate court adjudicated this
claim on the merits. That being so, under AEDPA, a federal court may only grant
habeas relief on this claim if the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law” 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). The clearly
established federal law for assessing whether a prosecutor’s improper comments
violated a petitioner’s due process rights was articulated in Darden v. Wainright,
477 U.S. 168 (1986). Parker v. Matthews, 567 U.S. 37, 45–49 (2012). In Darden,
the prosecutor had made remarks during closing argument that were later
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condemned by all reviewing courts. Darden, 477 U.S. at 179. Nevertheless, the
Supreme Court held that, regardless of the impropriety of the remarks, as a
constitutional matter, “[t]he relevant question is whether the prosecutors’
comments so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Id. at 181 (quotation marks omitted). The Court further
clarified that “the appropriate standard of review for such a claim on writ of habeas
corpus is the narrow one of due process, and not the broad exercise of supervisory
power.” Id. (quotation marks omitted). The Court likewise noted that, when
determining whether a statement has infected the trial as a whole, a reviewing
court may consider the extent to which a prosecutor’s remarks were invited by
opposing counsel. Id. at 181–82. Applying this standard to the case before it, the
Supreme Court concluded that Darden’s trial was not fundamentally unfair. Id. at
183.
In his closing argument in the present case, Petitioner’s counsel argued, in
essence, that the jury should conclude that Petitioner was not the robber because
the eyewitness said that the robber had no tattoos on his hands, but, when
Petitioner displayed his neck tattoos for the jury, the jury had seen that Petitioner
had tattoos on his hands. Counsel’s exact words were: “Mrs. Velasquez went on
to say that the person who did the robbery had no tattoos on his hands. Now, let
me remind you[,] when Mr. Wiggins came up and showed you the tattoos [on his
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neck], you saw he has tattoos all over both hands, okay.” The prosecutor
responded in his rebuttal argument: “Tattoos on hands. You saw them. Do we
know when he got those tattoos? It has been three years since the robbery.”
After the conclusion of closing arguments, Petitioner moved for a mistrial
based on prosecutorial misconduct, arguing that the prosecutor’s suggestion that
Petitioner could have gotten his hands tattooed at some point during the three-year
period since the robbery was a knowingly false argument because the prosecutor
was aware that Petitioner had been incarcerated throughout this three-year period.
Responding that “many people get tattoos in jail or in prison” and finding that
Petitioner was not prejudiced, the trial court denied the motion for a mistrial.
Petitioner challenged the trial court’s denial of this motion on direct appeal and the
Florida appellate court affirmed the judgment without written explanation.
Here, the state trial court’s explanation for denying the motion for mistrial
was admittedly terse, but in context one can glean its gist. The state trial court, in
shorthand fashion, concluded that the prosecutor did not knowingly make a false
statement, and thereby mislead the jury, because it was entirely possible that
Petitioner got his tattoos after the robbery, while he was imprisoned. This finding
is entitled to deference, as is the court’s decision that a mistrial was not warranted
on this basis, and the court’s conclusion was not contrary to, or an unreasonable
application of, clearly established federal law. See Meders, 911 F.3d at 1351 (“It
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would be irrational to afford deference to a decision with no stated explanation but
not afford deference to one that states reasons, albeit not as thoroughly as it could
have.”).
In addition to the fact that the prosecutor’s isolated remark did not misstate
any evidence, we also note that the comment was made in direct response to
defense counsel’s closing argument. See Darden, 477 U.S. at 181–82. Indeed, by
questioning Velasquez’s identification based on Petitioner’s hand tattoos, defense
counsel invited the prosecutor’s response that the record did not contain any
evidence regarding when Petitioner had obtained the tattoos. See Whisenhant v.
Allen, 556 F.3d 1198, 1207 (11th Cir. 2009) (concluding that the prosecutor’s
remark about the lack of evidence regarding defendant’s insanity was an invited
response to the defense’s closing argument and did not render the trial
fundamentally unfair). Under the circumstances, the prosecutor’s limited and fair
response to defense counsel’s remark did not render the entire trial fundamentally
unfair.
In short, the state trial court’s determination that the prosecutorial comment
was not improper, and thus did not warrant a mistrial, meaning that Petitioner’s
due process rights were not violated, was not contrary to, or an unreasonable
application of, clearly established federal law. Accordingly, the district court
properly denied habeas relief on this claim.
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III. CONCLUSION
The district court’s denial of Petitioner’s § 2254 petition is AFFIRMED.