Chambers v. Sec'y, Dep't of Corr., 11-11848

• Decision Date: 01 March 2012
• Docket Number: No. 11-11848,D.C. Docket No. 8:08-cv-00176-EAK-EAJ,11-11848
• Parties: PATRICK A. CHAMBERS, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

PATRICK A. CHAMBERS, Petitioner-Appellant,

v. SECRETARY, DEPARTMENT OF CORRECTIONS,ATTORNEY GENERAL, STATE OF FLORIDA, Respondents-Appellees.

No. 11-11848

D.C. Docket No. 8:08-cv-00176-EAK-EAJ

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

Dated: March 1, 2012

[DO NOT PUBLISH]

Non-Argument Calendar

Appeal from the United States District Court

for the Middle District of Florida

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Patrick Chambers, a Florida prison inmate proceeding pro se, appeals the district court's denial of his petition to set aside his conviction for aggravatedassault pursuant to 28 U.S.C. § 2254. The Florida District Court of Appeal, in affirming his conviction and sentence in Chambers v. State ("Chambers I"), described the State's case against Chambers thusly:

On March 21, 2002, Mr. Chambers knocked on the door of Marcia Radway's apartment. Ms. Radway claimed that he forced his way in and told her that he had been hired to kill her. He pulled out a gun and threatened her with it. At the time of these events, Richard Blair was in the bathroom of the apartment. Mr. Chambers allegedly threatened him with the gun and told him not to come out of the bathroom. A struggle then occurred between Ms. Radway and Mr. Chambers in which the gun discharged and shot her in the leg. Mr. Chambers then fled from the apartment. At trial, Ms. Radway testified that she had not known Mr. Chambers prior to this burglary. Ms. Radway is Jamaican and when the police first arrived at the scene of this crime, she told them that another Jamaican named "Zeke" had shot her.

Mr. Chambers was arrested following a high-speed car chase during which he threw the gun involved in the shooting out the window of his car. Following his arrest, Mr. Chambers gave a recorded statement to the police in which he claimed that he and a man named "Dray" had gone to the apartment to purchase thirteen pounds of marijuana. Mr. Chambers stated that "Dray" was involved in the purchase of the marijuana in another room, while he merely waited in the living room. Mr. Chambers heard a scuffle in the other room and then a gunshot. Thereafter, the two men fled together. However, no one named "Dray" was ever located. The gunshot alerted neighbors to this event, and no neighbor saw anyone other than Mr. Chambers leave the apartment. It is interesting to note, however, that Mr. Blair left the apartment immediately after the shooting and did not return until the police had already begun their investigation.

The State charged Mr. Chambers with armed burglary of a dwelling, aggravated assault of Richard Blair, attempted second-degree murder of Ms. Radway, and tampering with physicalevidence, i.e., the firearm. Mr. Chambers was found not guilty of the burglary and of the assault on Richard Blair. He was found guilty of tampering, but that conviction creates no issue for appeal.

880 So.2d 696, 698 (Fla. 2d Dist. Ct. App. 2004). The trial court instructed the jury on the lesser included offenses of attempted second-degree murder: aggravated battery, aggravated assault, felony battery, battery and assault. Defense counsel did not object to the instructions. On appeal, Chambers argued that aggravated battery was not a category one lesser-included offense, and, moreover, that the charging document failed to allege the essential elements of the offense. The District Court of Appeal agreed, but held that the error did not amount to a fundamental error requiring reversal. Chambers I, 880 So.2d at 699. Chambers then petitioned the appellate court for a writ of habeas corpus on the ground that appellate counsel was ineffective for failing to argue that it was fundamental error to instruct the jury on aggravated assault while discharging a firearm resulting in great bodily injury, because the penalty for the offense was the same as the penalty for attempted second-degree murder. The court denied his petition on the ground that the instruction did not amount to fundamental error because Chambers suffered no prejudice. Chambers v. State, 975 So.21d 444 (Fla. 2d Dist, Ct. App. 2007) (Chambers II). Chambers then moved the trial court pursuant to Florida Rule of Criminal Procedure 3.850 to vacate his aggravatedassault conviction on the ground that defense counsel was ineffective for failing to object to the jury instruction on aggravated assault. The court denied his motion, concluding that the effect of the District Court of Appeal's holdings that Chambers had not been "harmed by the unpreserved error" was that he had not suffered Strickland prejudice. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Chambers appealed the ruling, and the District Court of Appeal affirmed per curiam. Chambers v. State, 905 So.2d 125 (Fla. 2d Dist. Ct. App. 2005).

Having no success in the Florida courts, Chambers repaired to the federal district court for relief under § 2254. The district court agreed with the Florida courts that Chambers failed to establish Strickland prejudice and thus denied the writ. We granted a certificate of appealability as to whether Chambers's trial counsel rendered ineffective assistance by failing to object to the inclusion of an aggravated assault instruction in the court's charge to the jury.

In his brief, Chambers argues that the state habeas court unreasonably applied Strickland when it determined that he was not prejudiced by his trial counsel's performance. Specifically, Chambers argues that if aggravated assault was not listed on the jury verdict form, the jury would have, at most, selected felony battery, the next lowest offense, because the jury did not select the lesserincluded offenses listed above aggravated assault.

We review a district court's denial of a habeas petition under 28 U.S.C. § 2254 de novo and its factual findings for clear error. Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). A habeas petition based on ineffective assistance of counsel presents a mixed question of law and fact that we review de novo. Id. "Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (quotation omitted).

Under 28 U.S.C. § 2254(d), a federal court may not grant habeas relief on claims that were previously adjudicated in state court, unless the state court's adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Supreme Court law, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254(d)(1)-(2).

In Strickland, the Supreme Court set out a two-part inquiry for ineffective assistance of counsel claims:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant

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