Rambaran v. Sec'y, Dep't of Corr.

• Decision Date: 09 May 2016
• Docket Number: No. 14–14242.,14–14242.
• Citation: 821 F.3d 1325
• Parties: Richard O. RAMBARAN, Petitioner–Appellee, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

821 F.3d 1325

Richard O. RAMBARAN, Petitioner–Appellee

v.SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent–Appellant.

No. 14–14242.

United States Court of Appeals, Eleventh Circuit.

May 9, 2016.

Janice Louise Bergmann, Federal Public Defender's Office, Fort Lauderdale, FL, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Petitioner–Appellee.

Douglas J. Glaid, Pam Bondi, Richard L. Polin, Attorney General's Office, Miami, FL, for Respondent–Appellant.

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

Before ED CARNES, Chief Judge, MARTIN, Circuit Judge, and WALTER,^* District Judge.

ED CARNES

, Chief Judge:

Richard Rambaran is a Florida prisoner serving a life sentence after his convictions in 2008 for second degree murder, armed burglary of an occupied dwelling with battery, and trespass with battery but without a weapon. While his case was on direct appeal to Florida's Third District Court of Appeal, some district courts of appeal certified to the Florida Supreme Court questions or conflicts in decisions involving the standard jury instruction on the crime of manslaughter by act. That jury instruction had been given at Rambaran's trial because the crime of manslaughter by act is a lesser included offense of first and second degree murder. Rambaran's attorney did not raise on appeal any issue involving the instruction.

After the Third District Court of Appeal had affirmed Rambaran's convictions but one day before the mandate issued, the Florida Supreme Court held in another case that the same manslaughter by act jury instruction given in Rambaran's trial was not only error but fundamental error (meaning that no objection at trial was required to preserve it). After unsuccessfully seeking collateral relief in state court, Rambaran filed a petition for federal habeas relief, which the district court granted on the ground that appellate counsel had rendered ineffective assistance by failing to anticipate the Florida Supreme Court's decision on the jury instruction issue and raise it before the Third District Court of Appeal. This is the State of Florida's appeal from the district court's order granting habeas relief.

This is the question: Is a state court's denial of an ineffective assistance claim unreasonable where that claim is based on counsel's failure to anticipate a change in the law? The answer lies in our decisions holding that counsel is not required to anticipate changes in the law.

I.

After Rambaran and his girlfriend Leeah Thurston broke up, he repeatedly threatened her with a knife and, on one occasion, beat her so badly she needed stitches. They attempted to reconcile and when that failed, Rambaran approached Thurston's new boyfriend, Shay Williams, and threatened to kill him. A passing police car prevented Rambaran from carrying out that threat. Later the same night, he and a friend found Williams, who was driving Thurston's car, and chased him at high speeds, with Rambaran shooting at him four or five times. After Williams took refuge at a police station, Rambaran called Thurston and told her: “[Y]ou know what, I'm going to get you and I'm going to get him and I'm going to get your whole family and I'm going to put all of you in a body bag.” She hung up on him, but he continued calling her.

Thurston's cousin, Latoya Johnson, spent that night at Thurston's house. Shortly before Thurston fell asleep, Rambaran called her and asked her which room she was sleeping in, but she refused to tell him. Later in the night she was awakened by banging on the wall that her room shared with Johnson's room. After the banging got louder and she began to hear muffled screams, Thurston “peeked in” Johnson's room and saw Rambaran holding a pillow over her head, telling her to shut up. Thurston ran back into her bedroom, locked the door, and called 911. The police arrived, but it was too late. By the time they got there, Rambaran had stabbed Johnson six times, twice in the back of her head and four times in the back of her neck. Three of the stab wounds

were fatal.

A.

The State charged Rambaran with first degree murder of Johnson, attempted felony murder of Thurston, armed burglary of a dwelling with assault or battery, and armed burglary of a conveyance with assault or battery.¹ Rambaran's trial took place in April 2008.

As required by Florida law, the trial court instructed the jury on first degree murder and its lesser included offenses of second degree murder, manslaughter by act, and manslaughter by culpable negligence. See State v. Weller, 590 So.2d 923, 926 (Fla.1991)

(“The law requires that an instruction be given for any lesser offense all the elements of which are alleged in the accusatory pleadings and supported by the evidence adduced at trial.”). The court used Florida's then-applicable 2006 standard jury instructions for each of those offenses. It instructed the jury that to find Rambaran guilty of second degree murder, “it is not necessary for the State to prove a defendant had an intent to cause death.” It also instructed that manslaughter by act required the jury to find that “Rambaran intentionally caused the death of Latoya Johnson.” And the trial court defined culpable negligence as “consciously doing an act or following a course of conduct that the defendant must have known or reasonably should have known was likely to cause death or great bodily injury.” All in accord with the standard jury instructions at the time and all without objection from Rambaran.

The jury found Rambaran guilty of second degree murder (a lesser included offense of first degree murder), armed burglary of an occupied dwelling with battery, and trespass with battery and without a weapon (a lesser included offense of burglary of an occupied conveyance).² The court sentenced him to life for the murder, 30 years for the burglary, and 42 months for the trespass. He filed an appeal to the Third District Court of Appeal.

B.

In February 2009, before Rambaran filed his initial brief in the Third District Court of Appeal, the First District Court of Appeal issued its decision in Montgomery v. State, 70 So.3d 603, 604, 606–08 (Fla. 1st DCA 2009)

(Montgomery I ), holding that manslaughter by act does not require an intent to kill and for that reason Florida's 2006 standard jury instruction on that crime improperly added an element. Adding an element to a crime being considered as a lesser included offense was, the court concluded, fundamental error.³

Id. at 607–08. In the same opinion, the First District Court of Appeal certified to the Florida Supreme Court the question about whether the State was required to prove intent to kill in order to establish manslaughter by act.⁴

Id. at 608. In May 2009 the Florida Supreme Court accepted jurisdiction to review Montgomery I.

State v. Montgomery, 11 So.3d 943 (Fla.2009) (unpublished table decision).

About a month after the Florida Supreme Court accepted jurisdiction to decide the certified question, Rambaran's attorney filed his initial brief in the Third District Court of Appeal, raising two issues: (1) whether the trial court erred in denying his motion for a new trial on the murder and burglary counts because the verdicts were against the manifest weight of the evidence, and (2) whether the trial court erred in denying his motion for a mistrial based on the introduction of evidence that the court had previously ruled was inadmissible. He did not challenge any part of the 2006 standard jury instructions that were used at his trial.

While Rambaran's direct appeal was pending, the Second District Court of Appeal weighed in on the propriety of the standard 2006 manslaughter by act instruction, holding in two cases that giving that instruction was not error. See Zeigler v. State, 18 So.3d 1239, 1245 (Fla. 2d DCA 2009)

; Nieves v. State, 22 So.3d 691, 692 (Fla. 2d DCA 2009). In both of those decisions the court certified to the Florida Supreme Court the conflict between its decisions and the First District Court of Appeal's decision in Montgomery I. See

Zeigler, 18 So.3d at 1245–46 ; Nieves, 22 So.3d at 692.

In December 2009 the Third District Court of Appeal, which is the court that had Rambaran's appeal pending before it, held in another case that the standard 2006 manslaughter by act instruction was not fundamental error, meaning that an objection in the trial court was necessary to preserve the issue. See Valdes–Pino v. State, 23 So.3d 871, 872 (Fla. 3d DCA 2009)

. It also certified to the Florida Supreme Court the conflict between that decision and the decision of the First District Court of Appeal in Montgomery I. See id.

On February 5, 2010, which was after the Second District Court of Appeal had held that giving the 2006 standard instruction was not error and the Third District Court of Appeal had held it was not fundamental error, Rambaran's attorney filed in the Third District Court of Appeal a reply brief that did not raise the issue. In March 2010 the Third District Court of Appeal affirmed his convictions. Rambaran v. State, 30 So.3d 506 (Fla. 3d DCA 2010)

(unpublished table decision).

On April 8, 2010, only one day before the mandate issued in Rambaran's case, the Florida Supreme Court issued its decision in State v. Montgomery, 39 So.3d 252, 259–60 (Fla.2010)

(Montgomery II ), holding that giving Florida's 2006 standard instruction was fundamental error because it erroneously required the jury to find an intent to kill in order to convict on manslaughter by act. The Florida Supreme Court did not address in its decision whether giving the standard manslaughter by culpable negligence instruction cured any error in the manslaughter by act instruction. See

id. at 256.

Rambaran's attorney had from April 9, 2010 until July 13, 2010 to move to recall the mandate, but he did not do so. During that window of time, on June 2, 2010, the Third District held that giving the erroneous 2006 manslaughter by act instruction was not...