FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 27, 2005

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-15902

________________________

D. C. Docket No. 96-07266-CV-DTKH

TERRY M. JAMERSON, 

Petitioner-Appellant, 

versus 

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, 

Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

 (May 27, 2005)

Before ANDERSON, PRYOR and HILL, Circuit Judges.

PRYOR, Circuit Judge:

The sole issue in this appeal is whether Terry M. Jamerson is entitled to
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federal habeas relief because a Florida trial court allegedly instructed the jury that

it could find Jamerson guilty as an accomplice to second-degree murder if the jury

found Jamerson guilty of any lesser-included offense. Because the jury

instructions, in the context of the entire charge, fairly and correctly stated the law

of Florida, we conclude, under the highly deferential standard of habeas review,

that Jamerson was not denied due process. We affirm the denial of habeas relief.

I. BACKGROUND

Jamerson’s conviction arises from the 1992 murder of Luyen Nguyen, a 19-

year-old student of Vietnamese descent, who was beaten to death by a group of

drunken young men. According to testimony at Jamerson’s trial, Nguyen and two

friends, Jeff Sintay and Ryan Guerra, attended a party in Coral Springs, Florida on

August 15, 1992. The three left the party after 45 minutes. Sintay testified that, as

they were leaving the apartment where the party was held, Sintay overheard

several derogatory remarks directed at Nguyen. Those remarks included the racial

slurs “chink” and “Vietcong.”

Sintay told Nguyen about the epithets. Nguyen said that he wanted to return

to the party to “talk” about the insults. Concerned about “the type of element” at

the party, Sintay convinced Nguyen not to return to the party. 

On the sidewalk outside the apartment building, Sintay, Guerra, and Nguyen
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encountered Bradley Mills, who had also attended the party. Nguyen asked Mills

about the comments made at the party. Mills then called several partygoers

gathered on a balcony overlooking the sidewalk and said “this kid’s got a

problem.” Mills also called for “Chris” and “Jammer” to come down to the

sidewalk.

Sintay testified that several persons, including Jamerson, surrounded

Nguyen. An argument ensued, and Jamerson pushed Nguyen after another person

slapped Nguyen in the face. After Jamerson pushed Nguyen, members of the

group surrounding Nguyen struck him numerous times. Sintay testified that, after

the attack, Jamerson ran past Sintay and stated, “We got him good, but someone

got me good too.” Nguyen died from a blow to the head that broke his neck and

severed an artery.

Other witnesses corroborated Sintay’s testimony. David Michaelson

testified that he saw a group of persons “kicking and punching and jumping on”

Nguyen, and Jamerson was part of that group. John Russ testified that he heard a

“lot of yelling,” including the phrase “I hate Vietnamese.” Russ also testified that

he saw Jamerson and another person walking away from where Nguyen lay on the

ground after the beating. Mathew Metzger, who knew Jamerson and was a

resident of the apartment complex, testified that Jamerson came to his apartment
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that night, used Metzger’s telephone, and asked Metzger about the best way to

leave the apartment complex without being seen. 

Jamerson and two others were charged with second-degree murder and tried

as principals in the first degree. At the close of evidence, the state trial court

instructed the jury on the elements of second-degree murder, along with the lesserincluded offenses of manslaughter, aggravated battery, and battery. The trial court

also instructed the jury regarding the Florida law of principals, which holds

accountable, as a principal in the first degree, any person who aids in the

commission of any criminal offense, regardless of whether that person was present

at the commission of the offense. Fla. Stat. § 777.011. 

The trial court gave the Florida Standard Jury Instruction then in effect

regarding principal liability: 

If two or more persons help each other commit a crime and the

Defendant is one of them, the Defendant is a principal and must be

treated as if he had done all of the things the other person or persons did

if the Defendant:

Number one, knew what was going to happen.

And, number two, intended to participate actively or by sharing

in an expected benefit.

And, number three, actually did something by which he intended

to help commit the crime.
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Help means to aid, plan or assist.

To be a principal, the Defendant does not have to be present when

the crime is committed.

During deliberations, the jury asked the trial court the following question:

“Regarding the principals clause in number one, ‘knew what was going to

happen,’ do we interpret this to mean death/serious bodily injury or fight?” After

extensive argument, and over the objections of defense co-counsel, the trial court

answered that the liability of a principal applied to each criminal charge:

Members of the jury, the law of principals applies to the main

accusation, second degree murder. It also applies to the lesser included

offenses of manslaughter, aggravated battery and battery.

In answer to your specific question, quote, knew what was going

to happen, unquote, that pertains to a criminal act. Knew what was

going to happen pertains to a criminal act. 

The jury returned to its deliberations, but later asked a second question

about principal liability, which was accompanied by a diagram: 

[I]f we have established that a specific crime was committed

between C and D, and there is a chart here for [the court], under the law

of principals, could anyone who committed a lesser related crime

between A and C be charged as a principal with the crime committed

between C and D? 

Over the objections of defense co-counsel, the trial court told the jury to read the

earlier instructions again:
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With respect to this question, I would ask all of you to deliberate

further. Reread my instructions on the law. And since you have already

focused in on the law of principals, I would ask you to reread the law of

principals.

Hopefully, whatever facts you have established will be able to

answer this question under the law as I have already given it to you . .

. .

You are free to revisit this specific question or a related question.

If you can answer this question from what I have just said, and if it

triggers some other type of related question, in short, take another hard

look at the instructions on the law.

If your question is a factual one, I can’t answer that. I have no

right to. If you feel that your question is purely a legal question in

which you are asking me to expand or amplify on either the law of

principals or some other legal concept, ask the question again.

The jury asked no additional questions and, after further deliberations,

found Jamerson guilty of second-degree murder. The trial court sentenced

Jamerson to 22 years in prison. Jamerson appealed.

On direct appeal, Jamerson argued that the trial court misstated the law in its

answers to the jury’s questions regarding the phrase “knew what was going to

happen.” Jamerson contended that the trial court instructed the jury that so long as

the jury found Jamerson guilty of any crime, it could convict him of second-degree

murder under the law of principals. The appellate court rejected this argument,

with one judge dissenting, and affirmed Jamerson’s conviction without a written
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opinion. Jamerson v. State, 677 So. 2d 1299 (Fla. Dist. Ct. App. 1996) (per

curiam). The dissenting judge contended that the answers given by the trial judge

“beg[ged] the question asked by the jury” and “could have potentially misled the

jury to believe that if a defendant knew any criminal act was going to happen, then

that defendant could be convicted of second-degree murder.” Id. at 1300

(Pariente, J., dissenting).

In October 1996, Jamerson filed in the Southern District of Florida a

petition for a writ of habeas corpus, under 28 U.S.C. section 2254. A magistrate

judge issued a report and recommendation that the petition be denied, and the

district court adopted that recommendation in December 1998. Jamerson appealed

to this Court, where we concluded that the district court did not apply the correct

standard to determine whether the alleged error deprived Jamerson of due process. 

Jamerson v. Sec’y for the Dep’t of Corrs., No. 00-15605, slip op. at 3 (11th Cir.

June 26, 2001) (per curiam). We stated that the proper standard was whether the

error had “substantial and injurious effect or influence in determining the jury’s

verdict.” Id. at 2 (quoting California v. Roy, 519 U.S. 2, 5, 117 S. Ct. 337, 338

(1996)). We remanded the case for review under the correct standard and possible

review for harmless error:

[T]he district court is free to determine in the first instance
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whether the jury instruction and supplemental explanation in question

constituted federal constitutional error under the proper standard and, if

the court decides it did, then decide whether the error was harmless

under the proper standard. Or the court may initially determine if the

alleged error was harmless. 

Id. at 4 (footnote omitted).

The magistrate judge issued a report and recommendation that the petition

be denied. The magistrate judge stated that the jury instructions and later answers

to the jury’s questions, viewed as a whole, fairly and accurately stated the law. 

The magistrate judge further recommended that, even if the instructions were

erroneous, the error was harmless. The magistrate judge noted that “the mere

possibility of jury confusion does not establish the substantial and injurious effect

on the jury’s verdict” that is required for habeas relief, and “consideration of the

jury instructions as a whole and the trial record” showed that the jury determined

Jamerson intended to participate in second-degree murder. 

After the magistrate judge issued the report and recommendation, but before

the district court issued its ruling, Jamerson was released unconditionally from

custody. The district court ordered supplemental briefing on the issue of

mootness. After hearing from the parties, the district court concluded that, under

Minor v. Dugger, 864 F.2d 124, 127 (11th Cir. 1989), Jamerson’s petition was not

moot, because of the “possibility of collateral legal consequences” from
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Jamerson’s conviction. The district court then adopted the report and

recommendation of the magistrate judge and denied Jamerson’s petition. This

appeal followed. 

II. STANDARD OF REVIEW

We review de novo the denial of a petition for writ of habeas corpus. 

Wright v. Hopper, 169 F.3d 695, 701 (11th Cir. 1999), cert. denied, 528 U.S. 934,

120 S. Ct. 336 (1999). Because Jamerson filed his petition after April 24, 1996,

this case is governed by the Antiterrorism and Effective Death Penalty Act

(AEDPA), which establishes a “highly deferential standard for reviewing state

court judgments,” Parker v. Sec’y for the Dep’t of Corrs., 331 F.3d 764, 768 (11th

Cir. 2003), and “prevent[s] federal habeas ‘retrials’ . . . to ensure that state-court

convictions are given effect to the extent possible under law.” Bell v. Cone, 535

U.S. 685, 693, 122 S. Ct. 1843, 1849 (2002). A federal court can grant habeas

relief from a state conviction in two circumstances: (1) where the state court

proceeding “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) where the state court proceeding

“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. §
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2254(d); see also Diaz v. Sec’y for the Dep’t of Corrs., 402 F.3d 1136, 1141 (11th

Cir. 2005).

Federal habeas proceedings “are not forums in which to relitigate state

trials.” Barefoot v. Estelle, 463 U.S. 880, 887, 103 S. Ct. 3383, 3392 (1983). The

writ of habeas corpus protects persons against “extreme malfunctions in the state

criminal justice systems,” Jackson v. Virginia, 443 U.S. 307, 332 n.5, 99 S. Ct.

2781, 2796 n.5 (1979) (Stevens, J., concurring in the judgment), and habeas relief

has historically been limited “to those whom society has grievously wronged.” 

Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1721 (1993) (citation

and quotation marks omitted). Because “[d]irect review is the principal avenue for

challenging a conviction,” and habeas proceedings are “secondary and limited,”

id. at 633, 113 S. Ct. at 1719, “an error that may justify reversal on direct appeal

will not necessarily support a collateral attack on a final judgment.” Id. at 634,

113 S. Ct. at 1720 (citations and quotation marks omitted).

Federal habeas relief is unavailable “for errors of state law.” Estelle v.

McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 480 (1991) (quoting Lewis v. Jeffers,

497 U.S. 764, 780, 110 S. Ct. 3092, 3102 (1990)). A jury instruction that “was

allegedly incorrect under state law is not a basis for habeas relief,” id. at 71-72,

112 S. Ct. at 482, because federal habeas review “is limited to deciding whether a
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conviction violated the Constitution, laws, or treaties of the United States.” Id. at

68, 112 S. Ct. at 480. Unlike state appellate courts, federal courts on habeas

review are constrained to determine only whether the challenged instruction,

viewed in the context of both the entire charge and the trial record, “‘so infected

the entire trial that the resulting conviction violate[d] due process.’” Id. at 72, 112

S. Ct. at 482 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400-01

(1973)).

III. DISCUSSION

To resolve this appeal, we must review two issues. We first address our

jurisdiction and consider whether the unconditional discharge of Jamerson’s 

sentence renders this appeal moot. We then consider whether the jury instructions

given by the trial court violated the federal guarantee of due process.

A. Jamerson’s Appeal is Not Moot.

Although Florida does not contend that Jamerson’s petition is moot based

on the unconditional discharge of his sentence, we must ensure that we have

jurisdiction to consider this appeal. Cuban Am. Bar Ass’n, Inc. v. Christopher, 43

F.3d 1412, 1422-23 (11th Cir. 1995). Section 2254, by its literal terms, applies to

persons “in custody,” but the Supreme Court has held that section 2254(a) is

satisfied so long as the petitioner is in custody when the petition is filed. Maleng
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v. Cook, 490 U.S. 488, 490-91, 109 S. Ct. 1923, 1925 (1989) (per curiam). 

Completion of a criminal sentence does not render a petition for habeas relief

moot, because the ongoing collateral consequences of a wrongful conviction, such

as the possible enhancement of a later criminal sentence on the basis of the earlier

wrongful conviction, satisfy the case-or-controversy jurisdictional requirement of

Article III of the Constitution. Spencer v. Kemna, 523 U.S. 1, 7-8, 118 S. Ct. 978,

983 (1998). The unconditional discharge of Jamerson’s sentence, therefore, does

not moot this appeal.

B. The Jury Instructions Did Not Violate Due Process. 

Jamerson contends that the answers of the trial court to the jury’s questions

erroneously permitted the jury, in violation of In re Winship, 397 U.S. 358, 90 S.

Ct. 1068 (1970), to convict Jamerson of second-degree murder without a finding

of the required state of mind. Jamerson contends that the instructions incorrectly

stated that, if the jury found Jamerson guilty of any crime, the jury could find

Jamerson guilty of second-degree murder. We disagree. The instructions of the

trial court correctly stated the law and, therefore, did not deprive Jamerson of due

process. See Estelle v. McGuire, 502 U.S. at 72, 112 S. Ct. at 482.

Jamerson was prosecuted as a principal in the first degree. See Fla. Stat. §

777.011. The Supreme Court of Florida has held that to be guilty as a principal for
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a crime committed by another, the defendant “must intend that the crime be

committed and do some act to assist the other person in actually committing the

crime.” Staten v. State, 519 So. 2d 622, 624 (Fla. 1988). In other words, to be

liable as a principal for a criminal act, Jamerson must have intended that the crime

charged be committed.

We must consider together the instructions on each criminal charge and

principal liability in reviewing whether the later answers of the trial court to the

jury’s questions violated due process. Estelle v. McGuire, 502 U.S. at 72, 112 S.

Ct. at 482. It is undisputed that the trial court correctly instructed the jury on the

elements of second-degree murder, including the required mental state, and the

trial court correctly instructed the jury on the lesser-included offenses of

manslaughter, aggravated battery, and battery. It is also undisputed that the trial

court gave the standard jury instruction then in effect on the law of principals.

With those indisputably correct instructions in mind, we next consider the

questions of the jury and the answers provided by the trial court. Regarding the

phrase “knew what was going to happen” in the instruction about principal

liability, the jury asked “do we interpret this to mean death/serious bodily injury or

fight?” The trial court answered that “the law of principals applies to the main

accusation, second degree murder. It also applies to the lesser included offenses
14

of manslaughter, aggravated battery and battery. In answer to your specific

question, quote, knew what was going to happen, unquote, that pertains to a

criminal act.” 

This answer to the jury’s question correctly stated the relevant law. The

trial court explained that the law of principals applied to all offenses the jury was

considering—second-degree murder, manslaughter, aggravated battery, and

battery—and correctly stated that “knew what was going to happen” pertained to

each of those criminal acts. By instructing the jury that “knew what was going to

happen” pertained to a criminal act, the trial court correctly answered the jury’s

question. This appeal is not even as close as Estelle v. McGuire, where the

Supreme Court held, on habeas review, that a deviation by a trial court from a

standard California jury instruction regarding evidence of a characteristic plan or

scheme did not violate due process. Id. at 71, 75, 112 S. Ct. at 481, 484. The

Court held that there was not a “reasonable likelihood” that the jury misused the

nonstandard instruction, because the instruction had to be read in the context of

the entire charge and the trial court gave a limiting instruction. Id. at 74-75, 112

S. Ct. 483-84. 

Even if the answer of the trial court to the jury’s first question could have

been clearer, we may not judge it “in artificial isolation,” but must consider the
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jury instructions as a whole. Id. at 72, 112 S. Ct. at 482 (quoting Cupp, 414 U.S.

at 147, 94 S. Ct. at 400-01). Viewed in that context, the answer of the trial court

did not “so infect[] the entire trial that the resulting conviction violate[d] due

process.” Id. (citation and quotation marks omitted). The trial court correctly

instructed the jury about the elements of each charge and stated that the jury had to

find Jamerson possessed a depraved mind to convict him of second-degree

murder: “Before you can find any Defendant guilty of second degree murder, the

State must prove . . . [that] there was an unlawful killing of Luyen Nguyen by an

act imminently dangerous to another and evincing a depraved mind regardless of

human life.” In the standard jury instruction on principals, the jury was also

required to determine whether Jamerson “actually did something by which he

intended to help commit the crime.” That instruction did not say “help commit

any crime,” and the trial court did not say, in its answer to the jury’s first question,

that “knew what was going to happen” pertained to any crime.

In response to a follow-up question, the trial court instructed the jury to

review and consider all of the earlier instructions. The jury asked whether

“anyone who committed a lesser related crime between A and C [could] be

charged as a principal with the crime committed between C and D,” and the trial

court instructed the jury to “[r]eread my instructions on the law.” Because we
16

presume that juries follow instructions, Stevens v. Zant, 968 F.2d 1076, 1086

(11th Cir. 1992), we presume that the jury in Jamerson’s trial followed the

instructions on second-degree murder, lesser-included offenses, and the law of

principals, which, taken as a whole, correctly stated the law. The admonition of

the trial court to read again all of the earlier instructions reinforces our conclusion

that Jamerson was not denied due process. 

We recognize that the trial court could have answered the jury’s questions in

greater detail, but the Constitution “entitles a criminal defendant to a fair trial, not

a perfect one.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431,

1436 (1986). Our inquiry also is not whether the challenged instructions were

“undesirable, erroneous, or even universally condemned;” our inquiry is whether

the instructions “so infected the entire trial that the resulting conviction violates

due process.” Estelle v. McGuire, 502 U.S. at 72, 112 S. Ct. at 482 (citation and

quotation marks omitted). Because the instructions fairly and correctly stated the

law, United States v. Russell, 717 F.2d 518, 521 (11th Cir. 1983), they did not

violate due process.

IV. CONCLUSION 

Because the trial court correctly stated the law in its answers to the

questions from the jury, Jamerson’s conviction did not violate due process. The
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ruling of the district court, therefore, is 

AFFIRMED.