PABLO GUZMAN

v.

SECRETARY, DEPARTMENT OF CORRECTIONS

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:17-cv-20220-CMA

I.

In 2013, Pablo Guzman was tried by a Florida jury. He had been charged with attempted first-degree murder, and the state

20-14181 Opinion of the Court 3 court instructed the jury to consider three lesser-included crimes as well: attempted second-degree murder, attempted voluntary manslaughter, and aggravated battery. Ultimately, the jury convicted Guzman of attempted second-degree murder, and he was sentenced to forty years in prison. Guzman now claims that the jury instructions on attempted voluntary manslaughter were incomplete because they lacked an explanation of “excusable homicide.” Under Florida law, a killing qualifies as excusable homicide when it was committed “by accident and misfortune,” with “sudden and sufficient provocation,” or “upon a sudden combat,” without “any dangerous weapon being used.” Fla. Stat. § 782.03. When Guzman’s counsel asked for an instruction explaining excusable homicide, the prosecution protested that such a theory of the case had not been pursued and could not possibly apply. The court agreed with the prosecution and omitted the instruction. Here is the problem—the decision should have gone the other way at the time. The Florida Supreme Court had said that a “complete instruction on manslaughter requires an explanation that justifiable and excusable homicide are excluded from the crime.” State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994) (emphasis added). And it did not matter that Guzman was convicted of attempted second degree murder—not manslaughter. Under Lucas, the jury needed to hear the complete instructions on manslaughter, even if the evidence was sufficient for second-degree murder. See id. at 426–

20-14181 Opinion of the Court 5 But Lucas did not last much longer. Two years later—before the district court ruled on Guzman's § 2254 petition—the Florida Supreme Court walked back this line of cases in Knight v. State, 286 So. 3d 147 (Fla. 2019). Like Guzman, the defendant in Knight was convicted of attempted second-degree murder. Id. at 148. He argued that the jury instructions for attempted voluntary manslaughter were incorrect, and thus reversible error. Id. at 150– 51. But this time the court disagreed. Because “there was no error in the jury instruction on the offense of conviction”—attempted second-degree murder—nor any claim that the evidence at trial was insufficient to support that conviction, reversal was not required. Id. at 151 (emphasis added). The district court recognized this change in the law and rejected Guzman's Lucas-based arguments. “If Lucas remained good law," the court conceded, then his claim for ineffective assistance of counsel would have succeeded. But relying on Lockhart v. Fretwell, which held that the prejudice step of such a claim turns on current law, the court analyzed Guzman's claim under Knight instead. See Fretwell, 506 U.S. at 371–72. And based on Knight, the court denied Guzman's petition. When Guzman appealed, we granted him a certificate of appealability on this issue. As stated by Guzman, “the determinative fact for this Court to consider is the applicability of Lockhart v. Fretwell to his claim.”

II.

We review a district court’s denial of a § 2254 federal habeas petition de novo. Smith v. Sec’y, Dep’t of Corr., 572 F. 3d 1327, 1332 (11th Cir. 2009).

III.

The Sixth Amendment guarantees criminal defendants the right to counsel at trial and on direct appeal. See Strickland v. Washington, 466 U.S. 668, 685–86 (1984); United States v. Berger, 375 F. 3d 1223, 1226 (11th Cir. 2004). And “the right to counsel is the right to the effective assistance of counsel.” Strickland, 466 U.S. at 686 (quotation omitted and emphasis added). To show that trial counsel or appellate counsel was constitutionally ineffective, a defendant generally must prove two things: deficient performance by counsel, and prejudice to the defendant. See id. at 687; Johnson v. Alabama, 256 F. 3d 1156, 1187 (11th Cir. 2001). We take for granted that Guzman’s counsel was likely deficient for failing to raise the excusable homicide instruction. But Strickland still requires a conclusion that the petitioner was prejudiced by counsel’s deficiency. A typical description of the prejudice inquiry is that a defendant must show “a reasonable probability of a different result in the appeal had the claim been presented in an effective manner.” Butts v. GDCP Warden, 850 F. 3d 1201, 1204 (11th Cir. 2017). The logic of Guzman’s prejudice argument flows from this typical standard—he says that if his counsel had challenged the omission of the excusable homicide

20-14181 Opinion of the Court 7 instruction, there is a "strong probability" that his conviction would have been vacated. But not every case is typical. In Lockhart v. Fretwell, the Supreme Court faced the same atypical issue animating this appeal: a change in the law. There, as here, the petitioner claimed that his counsel was ineffective for failing to make an objection (at trial rather than on appeal). Fretwell, 506 U.S. at 367. And there, as here, by the time the district court decided his federal habeas case, the legal basis for the objection no longer existed because the necessary precedent had been overruled. Id. at 367–68. Relying on the older law, the district court granted habeas relief (and the appellate court affirmed) because the omitted objection would have succeeded had it been made at the time of trial. Id. The Supreme Court reversed, holding that a Strickland prejudice analysis "focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective.” Id. at 369. Put another way, even if a defendant can show "a reasonable probability of a different result" without counsel's error, that is not always the end of the matter under Strickland. See id. at 369-70. “The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect." Id. at 369 (quoting Kimmelman v. Morrison, 477 U.S. 365, 374 (1986)). Thus, Strickland prejudice

20-14181 Opinion of the Court 9 does not apply to his ineffective assistance claim for three reasons. Each is unpersuasive. First, he argues that Fretwell applies only to claims of ineffective assistance of counsel at the trial level—not on appeal. This misses the thrust of Fretwell, which is based on the prejudice analysis, not the procedural posture. Fretwell does nothing to limit itself to the trial context—no language cabins its reasoning or holding in that way. To the contrary, the Fretwell court frequently refers to Strickland writ large, and Strickland’s analysis applies to both trials and appeals. See Fretwell, 506 U.S. at 369–73; Philmore v. McNeil, 575 F. 3d 1251, 1264 (11th Cir. 2009). Fretwell must also apply to both. We are not alone in reading Fretwell this way. Several other circuits have already applied that case when evaluating Strickland prejudice for an appellate ineffective assistance claim. See Bunkley v. Meachum, 68 F. 3d 1518, 1521–22 (2d Cir. 1995); United States v. Baker, 719 F. 3d 313, 321 (4th Cir. 2013); Schaetzle v. Cockrell, 343 F. 3d 440, 448 (5th Cir. 2003); Evans v. Hudson, 575 F. 3d 560, 566 & n.2 (6th Cir. 2009). Others have applied it when considering different parts of the Strickland analysis or otherwise considering ineffective assistance of appellate counsel claims. See Shaw v. Wilson, 721 F. 3d 908, 918 (7th Cir. 2013); Matthews v. Workman, 577 F. 3d 1175, 1195 (10th Cir. 2009); Becht v. United States, 403 F. 3d 541, 545–46 (8th Cir. 2005). No circuit has limited Fretwell to the trial context, and we see no reason to be the first.

20-14181 Opinion of the Court 11 court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 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) (emphasis added). According to Guzman, this past-tense language repudiates Fretwell and creates a new federal habeas right. In his view, § 2254(d) requires federal courts reviewing habeas petitions to look to the law at the time of the state decision rather than the law of the present, as Fretwell demands. Section 2254(d)’s past-focused language, he says, shifts the inquiry to the time of the state habeas petition. But AEDPA offers no new habeas power to the federal courts. In fact, it restrains their power. Under § 2254(d)’s text, a writ of habeas corpus “shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless” it resulted in a decision contrary to clearly established federal law. 28 U.S.C. § 2254(d) (emphasis added). That provision’s only affirmative instruction is that federal courts cannot grant habeas corpus except in a few limited circumstances. What it does not say is that habeas must be granted—in any circumstance.

20-14181 Opinion of the Court 13 Guzman “a windfall to which the law does not entitle him.” Fretwell, 506 U.S. at 370. Because the district court correctly applied Fretwell to this case, we AFFIRM the court’s denial of his § 2254 petition.

[fn 1]: Spencer recognized two exceptions to the rule in Lucas that the jury must have complete manslaughter instructions, but neither applies to Guzman's case. See 216 So. 3d at 485-86. [fn²]: To be clear, this is no technicality. Guzman was convicted of attempted second-degree murder, and the jury received a correct instruction on seconddegree murder.