Joseph E. Nichols, Jr. v. Secretary, Florida Department of Corrections

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-14262 Non-Argument Calendar ____________________

JOSEPH E. NICHOLS, JR., Petitioner-Appellant, versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, FLORIDA ATTORNEY GENERAL,

Respondents-Appellees.

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Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:19-cv-00184-BJD-JBT

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Generally, a petitioner must exhaust state court remedies before seeking federal relief. Id. § 2254(b)(1)(A). Ineffective assistance of counsel in a criminal proceeding violates the Sixth Amendment and amounts to a constitutional violation that qualifies for federal habeas review. See McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (“It has long been recognized that the right to counsel is the right to the effective assistance of counsel.”) (emphasis added). When claiming ineffective assistance of counsel, a petitioner must demonstrate that (1) “counsel’s performance was deficient” and (2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). We adopt a strong presumption “that counsel’s perfor- mance falls within the ‘wide range of professional assistance.’” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strick- land, 466 U.S. at 689). Thus, counsel’s “strategic choices made after thorough investigation of law and facts . . . are virtually unchal- lengeable.” Strickland, 466 U.S. at 690. A claim for ineffective assis- tance of appellate counsel “is governed by the same standards ap- plied to trial counsel.” Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020). And appellate counsel need not raise “every ‘colorable’ claim suggested by a client.” Jones v. Barnes, 463 U.S. 745, 754 (1983). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) superimposes a deferential lens on this framework. See Renico v. Lett, 559 U.S. 766, 773 (2010) (noting that state court de- cisions on habeas questions should “be given the benefit of the

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doubt”) (quotation omitted). Under AEDPA, a federal court may grant habeas relief only if the state court’s decision was (1) “con- trary to, or involved an unreasonable application of, clearly estab- lished Federal law” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court pro- ceeding.” 28 U.S.C. § 2254(d)(1)–(2). Applying AEDPA deference requires us to “evaluate the highest state-court decision” that decided the claim on the merits. Marshall v. Sec’y, Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). If a state court does not explain its reasoning in denying a habeas petition, we presume that it adjudicated the claim on the merits, absent “any indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). When reviewing a summary affirmance by a state court, a federal habeas court “must determine what arguments or theories supported or . . . could have supported” denial of habeas relief. Id. at 102 (empha- sis added). We must then “ask whether it is possible fairminded ju- rists could disagree that those arguments or theories are incon- sistent with” a prior Supreme Court decision. Id. at 102. Because Strickland and AEDPA create highly deferential standards inde- pendently, our review is “doubly” deferential when the two stand- ards “apply in tandem.” Jenkins v. Comm’r, Ala. Dep’t of Corr., 963 F.3d 1248, 1265 (11th Cir. 2020). Thus, when Strickland and AEDPA converge in a claim for ineffective assistance of counsel, we must decide “not whether counsel’s actions were reasonable,”

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but “whether there is any reasonable argument that counsel satis- fied Strickland’s deferential standard.” Id. B.

The crux of Nichols’ appeal hinges on the alleged strategic misstep by his counsel on the direct appeal. There, Nichols’ counsel argued that the state trial court abused its discretion by admitting unduly prejudicial statements made during the post-arrest inter- view with Detective Marmo. Appellate counsel contended that am- biguity inhered in statements like, “You got me for the rest of my life,” because it was unclear whether Nichols was referring to the sexual assault or to his probation violation. Denying the motion in limine, so the argument goes, resulted in admission of inculpatory statements that pressured Nichols into testifying. The Fifth District Court of Appeal of Florida rejected this reasoning when it summar- ily affirmed Nichols’ conviction. That same court also summarily denied Nichols’ state habeas petition that alleged ineffective assis- tance of appellate counsel. In his federal habeas petition, Nichols reasserts his claim of ineffective assistance of appellate counsel. He posits that his lawyer should have challenged the state trial court’s admission of the inculpatory statements under Miranda—Nichols suggests his requests to return to his cell constituted an invocation of his right to remain silent—instead of under evidentiary rules. See Miranda v. Arizona, 384 U.S. 436, 467–68, 479 (1966) (“[I]f a person in custody is to be subjected to interrogation, he must first be in- formed in clear and unequivocal terms that he has the right to re- main silent.”).

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1. To succeed on a Strickland claim for ineffective assistance of counsel, a petitioner must first prove that “counsel’s performance was deficient.” Strickland, 466 U.S. at 687. Deficiency means that “counsel made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Though the Fifth District Court of Appeal of Florida sum- marily denied Nichols’ state habeas petition without opinion, we treat that decision as an adjudication on the merits, which entitles it to AEDPA deference. Harrington, 562 U.S. at 99. Because Strick- land and AEDPA apply in tandem, we must determine what argu- ments could have supported the state court’s denial of habeas re- lief. Id. at 102. Nichols’ claim of ineffective assistance of appellate counsel will fail if there is “any reasonable argument that counsel satisfied Strickland’s deferential standard.” Jenkins, 963 F.3d at 1265 (alteration omitted). First, even if a Miranda violation occurred because Nichols was sleep-deprived and under the influence of pain medication, as he maintains, Nichols did not argue these points in either his mo- tion to suppress or motion in limine, precluding his lawyer from raising them on appeal. See Tillman v. State, 471 So. 2d 32, 34–35 (Fla. 1985); see also Steinhorst v. State, 412 So. 2d. 332, 338 (Fla. 1982) (“[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the

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objection, exception, or motion below.”). His appellate counsel was not ineffective for failing to argue foreclosed claims. Second, Nichols mentioned in his motion to suppress that he “affirmatively stated” that he wished to cease speaking with De- tective Marmo. But his primary argument in that motion was that the state trial court should suppress inculpatory statements made after he requested to return to his cell, not after his first request to terminate the interview. Again, the Miranda arguments made by trial counsel in the motion to suppress limited the panoply of chal- lenges available at the appellate stage. See id. We cannot fault ap- pellate counsel for refusing to advance claims—like a broader Mi- randa violation—that he was barred from raising. The only issue for us to decide is whether appellate counsel was deficient for failing to reargue the Miranda violation to sup- press statements Nichols made after requesting to return to his cell. This argument has something to commend it. At least two Florida courts have noted that an arrestee’s demand to return to his cell terminates a custodial interrogation. See, e.g., Shorter v. State, 98 So. 3d 685, 689 (Fla. Dist. Ct. App. 2012) (observing that an ar- restee’s “request to return to his jail cell” provides “sufficient clar- ity” for “any reasonable law enforcement officer” to know that the arrestee “desire[s] to terminate the interview”); Scott v. State, 151 So. 3d 567, 578 (Fla. Dist. Ct. App. 2014) (same). But both Shorter and Scott were decided after Nichols’ direct appeal was denied. Reasonably effective representation does not require predicting

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developments in the law. Rambaran v. Sec’y, Dep’t of Corr., 821 F.3d 1325, 1334 (11th Cir. 2016). Notably, Nichols made inculpatory statements before ask- ing to return to his cell. Thus, it was plausibly a better strategy for appellate counsel to argue that the state trial court should have sup- pressed these statements on evidentiary grounds rather than under Miranda. If appellate counsel succeeded with the evidentiary argu- ment, every inculpatory statement would have been suppressed. Conversely, a Miranda argument would not have excluded Nich- ols’ prejudicial statement made before he asked to return to his cell (a version of “You got me for the rest of my life.”). Admittedly, Nichols’ lawyer could have raised both evidentiary and Miranda arguments on the direct appeal, but there is no requirement “to raise every nonfrivolous issue that a defendant wants raised” if ap- pellate counsel makes a professional judgment “not to present those points.” Id. at 1332. Nichols has not established that his appellate counsel “made errors so serious” as to violate the Sixth Amendment. Strickland, 466 U.S. at 687. Accordingly, counsel’s performance was not defi- cient. 2. The second Strickland element requires showing that coun- sel’s “deficient performance” prejudiced the defense. Id. at 687. The prejudice prong of Strickland “asks whether it is “‘reasonably likely’ the result would have been different” but for counsel’s

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ineffectiveness. Harrington, 562 U.S. at 111 (quoting Strickland, 466 U.S. at 696). That is, “[t]he likelihood of a different result must be substantial, not just conceivable.” Id. at 112. The two-part Strickland test is conjunctive—“both parts . . . must be satisfied in order to show a violation of the Sixth Amendment . . . .” Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000). Several arguments could have supported the state court’s summary denial of Nichols’ habeas petition on the prejudice ground, none of which conflict with a prior Supreme Court deci- sion. Harrington, 562 U.S. at 102. For example, the state court may have concluded that, even if Nichols’ Miranda argument had been well-founded, it would not have warranted a reversal of his convic- tion. “The erroneous admission of statements obtained in violation of Miranda rights is subject to harmless error analysis.” Mansfield v. State, 758 So. 2d 636, 644 (Fla. 2000) (quoting Caso v. State, 524 So. 2d 422, 425 (Fla. 1988)). Here, Nichols’ Miranda argument would have warranted the exclusion of only some of the inculpa- tory statements that he made to the officers. And his Miranda ar- gument would have affected none of the other, substantial evi- dence of his guilt. It was not objectively unreasonable to conclude that his counsel’s failure to raise the Miranda argument on appeal did not prejudice him. IV.

The district court is AFFIRMED.

Footnotes

[2] Opinion of the Court 21-14262 ____________________ Before GRANT, LAGOA, and BRASHER, Circuit Judges. PER CURIAM: A jury convicted Joseph Nichols, Jr. of sexual battery, simple battery, and burglary. The state trial court sentenced him to life imprisonment with a twenty-five-year minimum for the sexual bat- tery and a concurrent life sentence for the burglary. It also imposed two concurrent 364-day jail sentences for the lesser included bat- teries. In this pro se appeal of a final order denying his petition for a writ of habeas corpus, Nichols claims ineffective assistance of ap- pellate counsel. Nichols contends that his appellate counsel should have challenged the state trial court’s admission of certain state- ments by Nichols to law enforcement under Miranda instead of un- der evidentiary rules. But the district court correctly found that Nichols’ appellate counsel satisfied the deferential Strickland stand- ard. His appellate counsel made a reasonable strategic choice when weighing the potential pitfalls of a Miranda argument. Accordingly, we affirm. I. On April 13, 2010, Nichols sexually assaulted his friend’s daughter-in-law in her home. The assault occurred at knife point while the victim’s three children slept upstairs. The victim at- tempted to defend herself against Nichols’ attack, but after a vio- lent struggle, Nichols subdued her. He threatened to kill all the 21-14262 Opinion of the Court 3 children in the house if the victim did not submit. After the assault, Nichols departed. The police arrested Nichols and advised him of his Miranda rights. Central to this appeal, Detective Thomas Marmo of the St. John’s Sheriff’s Department interviewed Nichols. After Detective Marmo introduced himself, Nichols made several statements against interest. Nichols stated, “Y’all got me. The bad guy’s behind bars and I will be for the rest of my life.” Detective Marmo read- vised Nichols of his Miranda rights and asked whether Nichols un- derstood the charges against him. Nichols responded, “It really doesn’t matter . . . . [I]t could be murder for all I care because I’m going down for the rest of my life anyway.” Soon after, Nichols told Detective Marmo that he wished to return to his cell. Detec- tive Marmo continued conversing with Nichols, and Nichols stated, “You’ve got me hook, line, and sinker for the rest of my life . . . .” Nichols again requested to return to his cell. Before Detective Marmo complied with the request, Nichols said, “[Y]ou’ve got me for the rest of my life,” and noted that an attorney could not rem- edy his predicament. The State of Florida charged Nichols by information with three counts of sexual battery and one count of burglary. Nichols moved to suppress the interview with Detective Marmo, but the trial judge denied that motion after reviewing a tape of the inter- view. The state trial court also denied Nichols’ motion in limine to exclude four inculpatory statements made during the interview. At trial, the state introduced portions of the interview between

[4] Opinion of the Court 21-14262 Detective Marmo and Nichols into evidence and brought up the interview during closing argument. A jury convicted Nichols of one count of sexual battery with a deadly weapon, two counts of simple battery (the lesser included offense of sexual battery), and the burglary as charged. Because the state trial court concluded that Nichols was a dangerous sexual felony offender, he was sen- tenced to life imprisonment with a twenty-five-year minimum for the sexual battery. The state trial court imposed a consecutive life sentence for the burglary and two concurrent 364-day sentences for the simple batteries. Several appeals ensued. Nichols appealed his conviction, ar- guing in relevant part that the state trial court abused its discretion by admitting unduly prejudicial statements from the interview with Detective Marmo. The Fifth District Court of Appeal of Flor- ida affirmed the conviction without opinion. Nichols then filed a motion for state postconviction relief under Fla. R. Crim. P. 3.850, including a claim for ineffective assis- tance of trial counsel. After an evidentiary hearing, the state trial court denied Nichols’ motion for postconviction relief. The Fifth District Court of Appeal of Florida affirmed that denial without opinion. During the pendency of his postconviction motions, Nich- ols also submitted a state habeas corpus petition, arguing, among other things, ineffective appellate counsel, which was summarily denied. Seeking federal relief, Nichols filed a habeas petition in the U.S. District Court for the Middle District of Florida under 28 21-14262 Opinion of the Court 5 U.S.C. § 2254. The district court denied the petition, concluding that Nichols failed to establish that his appellate counsel was inef- fective under Strickland, as well as a certificate of appealability. Nichols asks us to review that order, and we granted a certificate of appealability solely on the issue of whether his appellate counsel was ineffective. II. We review a district court’s denial of a petition for habeas corpus de novo and factual findings for clear error. Ward v. Hall,

[592] F.3d 1144, 1155 (11th Cir. 2010). A claim of ineffective assis- tance of counsel is a mixed question of law and fact, subjecting it to de novo review. Id. III. On appeal, Nichols claims that his appellate counsel was in- effective for not advancing a Miranda argument when challenging the state trial court’s failure to suppress certain statements from the post-arrest interview. He contends that the failure to raise a poten- tial Miranda violation deprived him of a reasonably competent at- torney and prejudiced the outcome of his appeal. Thus, he posits, the district court erred in denying his habeas petition. We disagree. A. A federal court may grant a writ of habeas corpus to a person convicted in state court only if a “violation of the Constitution or laws or treaties of the United States” occurred. 28 U.S.C § 2254(a).