         Case: 13-15679   Date Filed: 09/08/2016   Page: 1 of 16




                                                        [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-15679
                     ________________________

                  D.C. Docket No. 9:13-cv-80050-KLR



TROY K. CONRAD,

                   Petitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                   Respondent - Appellee.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________

                          (September 8, 2016)
               Case: 13-15679       Date Filed: 09/08/2016      Page: 2 of 16


Before JORDAN, ROSENBAUM, and SILER, * Circuit Judges.

SILER, Circuit Judge:

       In 2003, Florida prisoner Troy Conrad was convicted of second-degree

murder and attempted second-degree murder. Ten years later, he filed the instant

habeas proceeding pursuant to 28 U.S.C. § 2254, asserting that his Sixth

Amendment right to effective assistance of counsel was violated when his trial

counsel failed to object to a portion of the jury instructions on self-defense.

Conrad argues that the forcible-felony provision of the instructions was circular,

confusing, and misleading, and that it impermissibly negated his sole defense at

trial—a self-defense justification.

       The magistrate judge found no error in the provision of the forcible-felony

instruction and recommended that Conrad’s petition be denied. The magistrate

judge further concluded that even if the instruction were erroneous, any error

would not constitute fundamental error on appeal and therefore was not prejudicial

under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). The district

court adopted the magistrate judge’s report and recommendations. Conrad now

appeals the district court’s denial of his petition for writ of habeas corpus. We

AFFIRM.



*
  Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
                                              2
              Case: 13-15679     Date Filed: 09/08/2016   Page: 3 of 16


                                 BACKGROUND

      The State of Florida’s (“the State”) indictment alleged that on January 21,

2002, Conrad shot with a firearm Edgar Padilla, who ultimately died from his

complications, and Carmelite Lefevre, who survived. The State charged Conrad

with second-degree murder with a firearm and attempted second-degree murder

with a firearm, both in violation of Florida law. During Conrad’s 2003 trial, the

State theorized that Conrad, a drug addict, killed Padilla, his dealer, in an effort to

obtain crack cocaine. It further alleged that Conrad attempted to kill Lefevre

because she had witnessed Padilla’s murder.

      At trial, Conrad admitted shooting Padilla and Lefevre but asserted that he

did so only in self-defense. He explained that he regularly purchased cocaine from

Padilla, who had threatened that if Conrad “play[ed] with” Padilla’s money, Padilla

would shoot him. Conrad testified that on the day of the shootings, he wanted to

buy crack cocaine but owed Padilla approximately two hundred dollars for past

purchases. When he paged Padilla that morning, Conrad possessed only twenty

dollars, but he assured Padilla that he would repay the remainder of his debt by that

afternoon. Padilla responded that if Conrad failed to produce the money, Padilla

would “bust a cap” in Conrad—that is, shoot him. In Conrad’s mind, Padilla’s

threat was not baseless: he knew that Padilla sometimes carried a gun wrapped in

a towel and was a member of a violent gang.


                                          3
                Case: 13-15679    Date Filed: 09/08/2016   Page: 4 of 16


         Later that day, Padilla arrived at Conrad’s home unannounced and

demanded the money. When Conrad told him that he did not have it, Padilla

became angry, grabbed Conrad by the shirt, and yelled at him to get the money or

else Padilla would “bust a cap.” Conrad observed that Padilla had a towel with

him at the time; he assumed that Padilla’s gun was wrapped inside the towel.

         Padilla then placed Conrad in the back seat of Padilla’s car and handed the

towel to Lefevre, who was seated in the front passenger seat. Conrad recognized

Lefevre, who had been present during previous drug transactions with Padilla.

Conrad agreed to ask his mother for the money that Padilla demanded. When she

refused, Padilla became livid. Conrad stated that he nodded off in the car and

awoke to Padilla’s holding a gun. He heard Padilla say to Lefevre, “I ought to off

this cracker.” At this time, Lefevre was holding the towel. Believing he was about

to be killed, Conrad reached forward, grabbed the gun from Padilla, and fired four

times.

         After firing the last shot, Conrad scrambled to his house, told his girlfriend

to hide, and smeared ketchup onto his body so that he could pretend to be dead if

Padilla retaliated. He maintained that he had no time to think at the time of the

shooting but simply acted in fear for his life.        When police arrived, Conrad

willingly came out of his house but did not disclose that he had shot Padilla and

Lefevre. Instead, he told the officers that a rival drug dealer had shot them. At


                                            4
               Case: 13-15679     Date Filed: 09/08/2016   Page: 5 of 16


trial, Conrad emphasized that when he grabbed Padilla’s gun, he believed that

there was also a gun wrapped in the towel that Lefevre was holding and that he had

no time to hesitate or think.

      The court’s instructions to the jury discussed the law governing self-defense

as a legal defense to murder and attempted murder. As to the forcible-felony

exception to the self-defense justification, the court explained:

               [T]he use of force likely to cause death or great bodily
               harm is not justified if you find, one, Troy Conrad was
               attempting to commit, committing or escaping after the
               commission of an aggravated battery and/or aggravated
               assault . . . .

Neither party objected to this instruction.

      The jury found Conrad guilty of second-degree murder of Padilla and

attempted second-degree murder of Lefevre. The court denied Conrad’s motion

for a new trial and sentenced him to a term of life imprisonment for the second-

degree murder conviction and a concurrent fifteen-year term for the attempted

second-degree murder conviction. The state appellate court affirmed Conrad’s

convictions.

      After his initial efforts to obtain post-conviction relief failed, Conrad filed a

second post-conviction motion in state court, asserting for the first time that

counsel’s failure to object to the forcible-felony instruction constituted ineffective




                                              5
               Case: 13-15679    Date Filed: 09/08/2016   Page: 6 of 16


assistance. The court denied Conrad’s motion, and the Florida Fourth District

Court of Appeal affirmed.

        Conrad then filed this § 2254 action in federal court, maintaining that he was

denied effective assistance in light of his trial counsel’s failure to object to the

forcible-felony instruction.    A magistrate judge recommended that Conrad’s

petition be denied without a hearing. The district court adopted the magistrate’s

report and recommendation over Conrad’s objection. Conrad appealed to this

court, and we granted a certificate of appealability as to whether the district court

erred in rejecting Conrad’s claim.

                                     ANALYSIS

   I.      Standard of review

        “We review de novo a district court’s grant or denial of a habeas corpus

petition.” Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). We also review de

novo a district court’s legal conclusions and its resolution of mixed questions of

law and fact. Wellons v. Warden, 695 F.3d 1202, 1206 (11th Cir. 2012). Because

Conrad’s petition was filed after April 24, 1996, the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Conrad must

establish not only that his Sixth Amendment claim is meritorious, but also that the

state court’s adjudication of that claim:

              (1) resulted in a decision that was contrary to, or
                 involved an unreasonable application of, clearly
                                            6
             Case: 13-15679    Date Filed: 09/08/2016   Page: 7 of 16


               established Federal law, as determined by the
               Supreme Court of the United States; or

            (2) resulted in a decision that 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); see also Madison v. Comm’r, Ala. Dep’t of Corr., 677 F.3d

1333, 1336 (11th Cir. 2012). The Supreme Court has explained,

            The pivotal question [in a § 2554(d) claim] is whether the
            state court’s application of the Strickland standard was
            unreasonable. This is different from asking whether
            defense counsel’s performance fell below Strickland’s
            standard. Were that the inquiry, the analysis would be no
            different than if, for example, this Court were
            adjudicating a Strickland claim on direct review of a
            criminal conviction in a United States district court.
            Under AEDPA, though, it is a necessary premise that the
            two questions are different.           For purposes of
            § 2254(d)(1), “an unreasonable application of federal
            law is different from an incorrect application of federal
            law.” Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct.
            1495, 1498 (2000). A state court must be granted a
            deference and latitude that are not in operation when the
            case involves review under the Strickland standard itself.

Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 778 (2011).

      Conrad, therefore, confronts a “difficult” burden. Id. at 105. “The standards

created by Strickland and § 2254(d) are both highly deferential, and when the two

apply in tandem, review is doubly so.” Id. (internal quotation marks and citations

omitted). “When § 2254(d) applies, the question is not whether counsel’s actions

were reasonable. The question is whether there is any reasonable argument that


                                        7
              Case: 13-15679     Date Filed: 09/08/2016   Page: 8 of 16


counsel satisfied Strickland’s deferential standard.” Id.; see also Hill v. Humphrey,

662 F.3d 1335, 1343 (11th Cir. 2011) (en banc) (“Under AEDPA, our review of a

final state habeas decision is greatly circumscribed and is highly deferential to the

state courts.” (internal quotation marks omitted)).

      The merits of Conrad’s ineffective-assistance-of-counsel claim are “squarely

governed” by Strickland, 466 U.S. 668; see Williams v. Taylor, 529 U.S. 362, 390,

120 S. Ct. 1495, 1497 (2000). Pursuant to Strickland, Conrad must demonstrate

that “counsel’s performance was deficient” and that “the deficient performance

prejudiced the defense.” Strickland, 466 U.S. at 687. To establish ineffectiveness,

Conrad “must show that counsel’s representation fell below an objective standard

of reasonableness.” Id. at 688. To establish prejudice, he must demonstrate “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

      But because AEDPA deference also governs Conrad’s claims, he must prove

not only a reasonable probability of a more favorable outcome, but that no

reasonable jurist could have reached the state court’s conclusion. If fair-minded

jurists could disagree as to that decision’s soundness, the state court’s application

of Strickland cannot be said to be unreasonable, and AEDPA precludes the grant of




                                          8
                Case: 13-15679    Date Filed: 09/08/2016   Page: 9 of 16


habeas relief. Evans v. Sec’y, Dep’t of Corrs., 703 F.3d 1316, 1326-27 (11th Cir.

2013) (en banc).

         As Conrad has failed to satisfy Strickland’s first prong, we need not reach

the second prong. See Strickland, 466 U.S. at 697 (“[T]here is no reason for a

court deciding an ineffective assistance claim to . . . address both components of

the inquiry if the defendant makes an insufficient showing on one.”). We find that

Conrad’s ineffective-assistance claim is unpersuasive.

   II.      The relevant statute and the effect of Giles

         Conrad maintains that the state court’s decision was “contrary to” or

unreasonably applied Strickland. See § 2254(d)(1). He asserts that the state court

“misunderstood its own law” in its rejection of his ineffective-assistance claim.

According to Conrad, the forcible-felony instruction is proper only where the

defendant has committed an independent forcible felony other than the one for

which he claims self-defense.

         The instruction at issue is based on Florida Statute § 776.041(1) (2002),

which provides:

               The [self-defense] justification described in the preceding
               sections of this chapter is not available to a person who:

               (1) Is attempting to commit, committing, or escaping
                   after the commission of, a forcible felony . . . .




                                           9
             Case: 13-15679     Date Filed: 09/08/2016   Page: 10 of 16


See Williams v. State, 901 So. 2d 899, 900 (Fla. Dist. Ct. App. 2005) (noting that

the instruction concerning situations when the defense of justifiable use of force is

unavailable is drawn from Fla. Stat. § 776.041); see also Fla. Std. Jury Instr.

(Crim.) 3.6(f).

      In 2002—the year prior to Conrad’s trial—the Florida Court of Appeal

addressed a jury instruction that arose from this statute. Giles v. State, 831 So. 2d

1263 (Fla. Dist. Ct. App. 2002), held that the forcible-felony instruction is proper

only where the forcible felony is a separate and independent one. Giles was

convicted of aggravated battery after a fight with his opponent in a poker game

resulted in Giles hitting the man in the mouth with a brick. Id. at 1264. The trial

court instructed the jury, “The use of force not likely to cause death or great bodily

harm is not justifiable if you find that the defendant was attempting to commit,

committing or escaping after the commission of an aggravated battery.”             Id.

Accordingly, the court’s jury instruction on self-defense provided:

             The defendant would be justified in using force not likely
             to cause death or great bodily harm against [the victim] if
             the following two facts were proved.

             Number one, the defendant must have reasonably
             believed that such conduct was necessary to defend
             himself against [the victim’s] imminent use of unlawful
             force against the defendant.

             Number two, the use of unlawful force by [the victim]
             must have appeared to the defendant ready to take place.


                                         10
               Case: 13-15679    Date Filed: 09/08/2016   Page: 11 of 16


               The use of force not likely to cause death or great bodily
               harm is not justifiable if you find that the defendant was
               attempting to commit, committing or escaping after the
               commission of an aggravated battery.

Id. at 1265.

      The Florida Court of Appeal deemed this instruction erroneous, finding it

“reasonably calculated to confuse or mislead the jury.”         Id. (quoting Barton

Protective Servs., Inc. v. Faber, 745 So. 2d 968, 974 (Fla. Dist. Ct. App. 1999));

see also Wadman v. State, 750 So. 2d 655, 658 (Fla. Dist. Ct. App. 1999) (noting

that a trial court “should not give instructions which are confusing, contradictory,

or misleading”). Giles held that the self-defense instruction was “misleading and

confusing such that the effect was to negate Giles’ only defense to the charge of

aggravated battery.” Id. (citing Davis v. State, 804 So. 2d 400, 404 (Fla. Dist. Ct.

App. 2001) (deeming it fundamental error to give an inaccurate and misleading

instruction where the effect of that instruction is to negate a defendant’s only

defense); Harris v. State, 570 So. 2d 397, 399 (Fla. Dist. Ct. App. 1990)

(instructing that the trial court should give a complete and accurate instruction so

as not to negate the defendant’s theory of self-defense)).

      Giles noted that although aggravated battery is indeed a forcible felony, the

Florida statute’s plain language reflects that it applies “only under circumstances

where the person claiming self-defense is engaged in another, independent

‘forcible felony’ at the time.” 831 So. 2d at 1265 (citing Perkins v. State, 576 So.
                                          11
             Case: 13-15679     Date Filed: 09/08/2016    Page: 12 of 16


2d 1310 (Fla. 1991) (holding that cocaine trafficking was not a forcible felony so

as to preclude the defense of self-defense when the killing occurred during an

attempt to traffic in cocaine)). That is, “[t]he instruction is normally given in

situations where the accused is charged with at least two criminal acts, the act for

which the accused is claiming self-defense and a separate forcible felony.” Id. at

1265 (citations omitted).

      Though Giles committed only one act, the instruction conveyed that the act

that Giles sought to justify—the alleged aggravated battery—precluded a finding

of justification. “Essentially, the jury was instructed that [Section] 776.041(1)

would apply to preclude a self-defense claim, when it is claimed that the acts with

which the defendant is charged are themselves committed in appropriate self-

defense.” Id. at 1266. Therefore, even if the jury determined that Giles threw the

brick in self-defense, his action was nonetheless unjustifiable because the act itself

was a forcible felony. This reading of the statute is erroneous, the court said.

Instead, “the proper test for determining the applicability of the instruction is not

whether the self-defense act itself could qualify as a forcible felony, but whether, at

the time of the self-defense, the accused was engaged in a separate forcible

felonious act.” Id. at 1266 (citing Perkins, 576 So. 2d at 1311). Therefore, the

trial court’s instruction was “circular and confusing to the jury such that it basically

negated Giles’ defense.” Id. (citations omitted).


                                          12
             Case: 13-15679     Date Filed: 09/08/2016   Page: 13 of 16


   III.   Giles’ progeny and application to Strickland

      Conrad argued to the state court that he was denied effective assistance of

counsel when his trial counsel failed to object to the forcible-felony instruction in

light of Giles. He maintains that because Giles predated his trial, his counsel

should have known that the forcible-felony instruction did not apply and thus

should have objected.

      As stated above, counsel’s performance is deficient when it falls below an

objective standard of reasonableness and is “outside the wide range of

professionally competent assistance.” Johnson v. Sec’y, DOC, 643 F.3d 907, 928

(11th Cir. 2011) (quotation omitted). The “test has nothing to do with what the

best lawyers would have done. Nor is the test even what most good lawyers would

have done. We ask only whether some reasonable lawyer at the trial could have

acted, in the circumstances, as defense counsel acted at trial.” Waters v. Thomas,

46 F.3d 1506, 1512 (11th Cir. 1995) (en banc) (quotation marks omitted). Conrad

must therefore establish that “no competent counsel would have taken the action

that his counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th

Cir. 2000) (en banc). Here, the required “objective inquiry,” Castillo v. Fla. Sec’y

of DOC, 722 F.3d 1281, 1285 n.2 (11th Cir. 2013), entails asking “whether any

reasonable lawyer could have elected not to object for strategic or tactical reasons,”




                                         13
             Case: 13-15679     Date Filed: 09/08/2016    Page: 14 of 16


not whether “the actual defense counsel was . . . subjectively motivated by those

reasons.” Id.

      According to Conrad, the two charges for which he stood trial—second-

degree murder and second-degree attempted murder—were not separate,

independent felonies. Instead, he portrays his shooting of Lefevre and Padilla as

part of the same transaction, a unified attempt at self-defense.

      Conrad acknowledges that he was charged with two felonies for which he

claimed self-defense, while the Giles defendant confronted only one charge.

However, he characterizes this fact as “a distinction without a difference” because

he claimed self-defense as to both charges, which were related to victims acting in

concert in the same chain of events. Conrad submits that the forcible-felony

instruction was confusing and misleading, as he was not charged with any felony

other than those to which self-defense provided a complete defense.

      The State responds that Conrad’s counsel should not have been expected to

know that that the forcible-felony instruction did not apply, as the Florida Supreme

Court did not amend its standard jury instructions to reflect the Giles principle until

2006, three years after Conrad’s trial. See In re Std. Jury Instructions in Criminal

Cases (No. 2005-4), 930 So. 2d 612, 614 (Fla. 2006) (mem.) (instructing courts to

give the forcible-felony instruction “only if the defendant is charged with more

than one forcible felony” pursuant to Giles). Instead, during Conrad’s 2003 trial,


                                          14
             Case: 13-15679     Date Filed: 09/08/2016   Page: 15 of 16


Florida’s jury instructions indicated that the forcible-felony instruction was proper

where the defendant claiming self-defense was engaged in another independent

forcible felony.     The allegations against Conrad reflected exactly these

circumstances, as Conrad was charged with two distinct felonies.

      The State’s reasoning is persuasive. The instruction was not erroneous

according to Florida law at the time of the trial.         We have observed that

“[r]easonably effective representation cannot and does not include a requirement to

make arguments based on predictions of how the law may develop.” Spaziano v.

Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (alteration in original) (citations

omitted); see also Jackson v. Herring, 42 F.3d 1350, 1359 (11th Cir. 1995) (“To be

effective within the bounds set by Strickland, an attorney need not anticipate

changes in the law.”).

      What is more, though Giles represents the genesis of the court’s reasoning

regarding the forcible-felony instruction, that case did not address the precise issue

at hand here—that is, the application of the instruction when a defendant claims

self-defense as to more than one victim. The Florida Court of Appeal confronted

the issue only in Shepard v. Crosby, 916 So. 2d 861 (Fla. Dist. Ct. App. 2005)—




                                         15
               Case: 13-15679        Date Filed: 09/08/2016        Page: 16 of 16


which was decided two years after Conrad’s trial. Whatever Shepard’s effect,

counsel was not deficient in failing to raise the case.1

       Florida precedent indicates that trial counsel’s failure to object to standard

jury instructions that had not been invalidated by the Florida Supreme Court do not

render counsel’s performance deficient.               Therefore, Conrad has not satisfied

Strickland’s performance prong.            The district court did not err by dismissing

Conrad’s petition for habeas relief.


                                        CONCLUSION

       Because Conrad was charged with more than one forcible felony, the

magistrate judge and the district court determined that the forcible-felony

instruction was not improper. We agree. Because the provision of the forcible-

felony instruction at Conrad’s trial comported with Florida law at the time of the

trial, Conrad’s trial counsel did not violate constitutional standards. We therefore

conclude that the district court’s finding was not an unreasonable determination of

the facts in light of the evidence presented in the state court proceeding.

       AFFIRMED.



1
  Shepard provides scant background information and sheds little light on the issue before us.
Florida courts have called Shepard’s precedential value into question. See, e.g., Martinez v.
State, 933 So. 2d 1155, 1167 (Fla. Dist. Ct. App. 2006) (“As [this] extremely brief opinion[]
reveal[s] very little, if anything, regarding the analysis performed or articulate[s] the facts upon
which [it is] based, we conclude that [it] . . . [is] of no precedential value.” (citing Shepard, 916
So. 2d 861)). Accordingly, our analysis does not rely upon Shepard.
                                                 16
