[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________
No. 21

- 11058
Non

- Argument Calendar

____________________
STEPHEN BREWSTER,
Petitioner

- Appellant,

versus SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents

- Appellees.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:15

- cv

- 00448

- WFJ

- TGW

____________________ USCA11 Case: 21-11058 Date Filed: 03/21/2022 Page: 1 of 102 Opinion of the Court 21

- 11058

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and BRANCH, Circuit Judges.
PER CURIAM: Stephen Brewster, a Florida prisoner , appeals pro se the denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254 . We granted Brewster a certificate of appealability to address whether appellate counsel was ineffective for not argu ing that the trial court erred when it failed to renew an offer to appoint counsel for Brewster after h e twice waived that right in his pr obation revocation hear ing

. Because it was not an unreasonable application of clearly established federal law for the state postconviction court to r eject Brewster’s claim , we affirm.
I. BACKGROUND In 2009, Brewster plead ed guilty in 12 cases to 17 crimes , including credit card fraud, uttering a forged instrument, forgery, and burglary of a vehicle. A Florida court sentenced Brewster to 11 consecutive terms of 33 months of imprisonment followed by 27 months of probation in his 11 felony cases and to six months of probation for criminal mischief . Brewster did not appeal.
After Brewster completed his prison sentence , he committ ed a n ew offense
, and t he state petition ed to revoke his probation

. The petition mentioned all 12 of Brewster’s cases, but the

s upporting affidavit mentioned only 9 cases. USCA11 Case: 21-11058 Date Filed: 03/21/2022 Page: 2 of 1021

- 11058 Opinion of the Court 3

The trial court appointed counsel for Brewster

. Brewster moved to dismiss his attorneys as ineffective , but the trial court denied the motion.
B rewster’s revocation hearing last ed two days. At its commencement, Brewster mov ed to proceed pro se , and he was apprised o f t he advantages of having counsel and the risks of self

representation. See Faretta v. California , 422 U.S. 806, 835 (1975)

. The trial court twice warn ed Brewster not to waive his right to counsel because his attorney had superior expertise and Brewster faced a maximum sentence of 8 5 years of imprisonment

. Brewster stat ed that he was not “being stubborn” and was “doing this because [he had] reasons .

. . to defend [his] own case.” The trial court informe d Brewster that h e could change h is mind and
, if he “want [ed] an attorney to be re

- appointed, [it] would allow [him] to do that
, ” but “if [it were to] find that [he] violated [his] probation and [imposed] sentence . . ., [he] would not be able inthe future to say, well I change my mind, I should have had an attorney after all.” When asked whether
, “despite knowing what the dire and severe consequences are, [he] still wish[ed] to waive [his] right to an at torney,” Brewster responded, “Yes.” The trial court recessed for lunch and, a fter the break
, Brewster reaffirmed his desire to proceed pro se and “decline[d]” an “offer [f or ] the assistance of the public defender ’ s office. ” The prosecutor presented evidence that Brewster committed a new offense while on probation

. Brewster rested his case immediately and a rgued that revocation was unwarranted because USCA11 Case: 21-11058 Date Filed: 03/21/2022 Page: 3 of 104 Opinion of the Court 21

- 11058 the evidence was “hearsay and circumstantial

. ” T he trial court rule d that Brewster had viol ated his probation. But be cause of the “late hour” and the need to allow members of Brewster’s family

t o testify
, t he trial court set sentencing for the next day

. When the hearing resumed the next afternoon , the prosecutor remarked that Brewster was repr esenting himself and had declined an offer to “resolve . . . the substantive case . . . [of] auto burglary.” The trial court clarifie d that it “had the Faretta hearing with Mr. Brewster yesterday on the violation of probation cases only” and “he still has counsel on the new charge

. ” Brewster interjected, “I dismissed counsel completely
, ” but the trial court clarified that it did not consider his “motion [to proc eed pro se ] []as directed to the new case, . . . just . . . with the violations of probation

. . . . ” After Brewster sai d “No
, ” the trial court respond ed that it would address counsel for his new c harge later

. Brewster discussed his score sheet with the pr osecutor and then

sa i d, “just for . . . understanding, I’m probably going to have representation later on” “[f]or the new case

. ”
The trial court confirmed that it was revoking probation in nine instead of 12 cases . The prosecutor inqui red whether Brewster , who was “obviously representing himself at this point” “underst[ood] what the judge [was] saying.” T he trial court offered to

“ resolve [ the three additional cases] today as well ” because Brewster had “very recently . . . in one of the [three] cases .

. . filed a motion for Nelson hearing/Faretta hearing
, ” but the trial court did not resolve the three additional cases. USCA11 Case: 21-11058 Date Filed: 03/21/2022 Page: 4 of 1021

- 11058 Opinion of the Court 5

B rewster asser ted that a discrepancy existed in the evidence identifying him as the burglar
, and t he trial court allowed Brewster to reope n his case and introduce his evidence

. Brewster contest ed revocation of the probation on the ground that he was “under an illegal sentence ” due to “records . . . be[ing] falsified

. ” Thetrial court considered Brewster’s evidence and ruled that its “decisio n regarding the state having proven the allegations ha [d] not changed” and Brewster was “ i n violation of

. . . probation as indicated yesterday.”

Brewster stated he had no objection to the calculation o f his sentence
, and t he prosecutor requested a maximum sentence of 60 month s of imprisonment with 27 months left to serve after crediting the 33 months Brewster had already serv ed . The prosecutor recounted that Brewer had “ over 50 felony convictions ” and

“ 20 or 30 misdemeanors ” for which he had “been to prison already five times
, ” that “less than one year” after being “ released from prison on March 19, 2011,

. . . he picked up this new burglary of a car case
, ” and he had several “ county jail sentences.” The prosecutor also recounted Brewster’s “numerou s opportunities at treatment,” includ ing “negative discharge[s]” after several months of treatment in 2000
, in 2004, and in 2006 when he “ tested positive for cocaine ,” “ missed his groups ,” and refused to “ take the drug test .” T he trial court revoked Brewster’ s probation and sentenced him to eight consecutive terms of 60 months of imprisonment for his felony offenses and to time served for his misdemeanor offense

. USCA11 Case: 21-11058 Date Filed: 03/21/2022 Page: 5 of 106 Opinion of the Court 21

- 11058 On appeal, Brewster ’ s appointed counsel argued that there were no issues of merit and moved to withdraw

. See Anders v. California , 386 U.S. 738 (1967)

. Brewster filed a pro se brief and challenged the sufficien cy of t he evidence. The state appellate court affirmed summarily. Brewster v. State , 155 So. 3d 3 45 (Fla. Dist. Ct. App. 2014).
Brewster petitioned for state postconviction relief based on ineffective assistance of appellate counsel

. Fla. R. App. P. 9.100
, 9.141(d) . He a rgue d that counsel overlooked the failure of the trial court t o renew an offer to appoint counsel on the second day of his revocation hearing

. See Fed. R. Crim. P. 3.111(d)(5)

. The

state respond ed that Brewster ask ed to represent himself and

st ated , after being reminded of his right to counsel on the second day of the hearing
, that he desire d counsel only for his new

c harge

. T he state court summarily denied Brewster’s petition. Brewster v. State , 208 So.3d 706 (Fla. Dist. Ct. App. 2015)

. Brewster petitioned for a federal writ of habeas corpus and repeated his claim of ineffecti ve assistance of appellate counsel. 28 U.S.C. § 2254. The district court denied the petition . The district

court ruled that no reasonable probability existed that appellate counsel would have prevailed on an argument that a r enew ed offer to appoint counsel was required in Brewster’s case

. II. STANDARD OF REVIEW A petition for a writ of habeas corpus challenging the effectiveness of appellate counsel presents a mixed question of law and USCA11 Case: 21-11058 Date Filed: 03/21/2022 Page: 6 of 1021

- 11058 Opinion of the Court 7

fact that we review de novo

. Tuomi v. Sec ’ y, Fla. Dep ’ t of Corr.
, 980 F.3d 787, 794 (11th Cir. 2020), cert. denied sub nom. Tuomi v. Inch , 141 S. Ct. 1721 (2021)

. “A state court’s determination that aclaim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correc tness of the state court’s decision.” Woods v. Etherton , 136 S. Ct. 1149, 1151 (2016) (quoting Harrington v. Richter , 562 U.S. 86, 101 (2011)). Even a summary, unexplained rejection of a constitutional issue on the merits constitute s an adjudication that i s entitled to deference. Richter , 562 U.S. at 98

– 99. For a petitioner t o obtain habeas relief when a state court applies clearly established law
, its decision

must “be more than incorrect or erroneous”

— it must be “objectively unreasonable.” Lockyer v. Andr ade , 538 U.S. 63, 75 (2003).
III. DISCUSSION A claim of ineffective assistance of appellate counsel is governed by the standard established in Strickland v. Washington
, 466 U.S. 668 (1984). Tuomi , 980 F.3d at 795. Under Strickland
,“the standard for judging counsel’s performance is a most deferential one” that focuses on “whether [counsel’s] representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom .” Premo v. Moore , 562 U.S. 115, 122 (2011) (quoting Richter
, 562 U.S. at 105 )

. “The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” Richter , 562 U.S. at 105

. “ [T] he question is not whether counsel’s actions were reasonable”; USCA11 Case: 21-11058 Date Filed: 03/21/2022 Page: 7 of 108 Opinion of the Court 21

- 11058instead, “[t]he question is whether there is any reasonable argument that counsel satisfied Strickland ’s deferential standard.” Id.

For Brewster to prevail, he must prove that his appellate

couns el’s performance was deficient and that he was prejudiced by the deficient performance. Strickland , 466 U.S. at 687. Counsel’s performance is deficient only if it falls “ below an objective standard of reasonableness.” Id. at 688

. “In considering the reasonableness of an attorney’s decision not to raise a particular claim [on appeal], we must consider ‘all the circumstances, applying a heavy measure of deference to counsel’s judgments. ’ ” Eagle v. Linahan , 279 F.3d 926, 940 (11th Cir. 2001) (quoting Stricklan d

, 466 U.S. at 691). A defendant is prejudiced if counsel fails to make an argument that has “a reasonable probability of success on appeal

. ” Tuomi , 980 F.3d at 795. An indigent defendant is entitled to the appointment of counsel “at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” Mempa v. Rhay
, 389 U.S. 128, 134 (1967). In addition, Florida requires that , “[i]f a

w aiver [of counsel] is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.” Fla. R. Crim. P. 3.111(d)(5). That “ruledoes not require a renewed offer of counsel each time the defendant appears in court ; rather, a court must renew the offer of counsel at ‘ critical ’ stages of the proceedings
, ” Woodbury v. State , 320 So. 3d 631, 650 (Fla. 2021), cert. denied sub nom. Woodbury v. USCA11 Case: 21-11058 Date Filed: 03/21/2022 Page: 8 of 1021

- 11058 Opinion of the Court 9

Fla. , No. 21

- 6393 (U.S. Feb. 22, 2022)
, like sentencing, Daughtrey v. State , 823 So. 2d 857, 858 (Fla. Dist. Ct. App. 2002). Despite these protections, a defendant can forego legal representation by asserting his right to self

- representation a nd then knowingly, voluntarily, and intelligently waiving his right to counsel. Faretta , 422 U.S. at 835

. The state postconviction court could have reasonably determin ed that appellate counsel reason ed that the trial court was not required to renew its offer of appointed counsel to Brewster. Rule 3.111(d)(5) does not require the trial court “ to offer counsel to the defendant each time he appears in court

. . . . ” Knight v. State , 770 So. 2d 663, 669

– 70 n.6 (Fla. 2000)

. Appellate counsel could have reason ed that the second day of Brewster’s revocation hearing , in which he was allowed to reopen his case and introduce additional evidence, w as a c ontinua tion of the evidentiary stage of the proceeding. And a s Brewster had waived his right to counsel twice already
, there was no need to renew an offer of legal assistance because “[w]here the right to counsel has been properly waived, the State may proceed with the stage in issue.” Tr aylor v. State , 596 So. 2d 95 7, 968 (Fla. 1992). Appellate counsel also could reasonably deduce from Brewster’s statements that heintended to continue to represent himself. After the parties discussed Brewster’s right to counsel, he insisted that he had “dismissed counsel completely” and wanted legal assistance only “later on” “for [his] new case.” USCA11 Case: 21-11058 Date Filed: 03/21/2022 Page: 9 of 1010 Opinion of the Court 21

- 11058

Brewster argue s that appellate counsel was ineffective in overlooking that the revocation of probation in nine instead of 12

cases w as a “substantial change in circumstances ” that required the trial court to “reassess its Faretta hearing decision.” But we will not address Brewster’s argument because it is outside the scope of the certificate of appealability. See Spencer v. Sec ’ y, Dep ’ t of Corr. , 609 F.3d 1170, 1180 (11th Cir. 2010)

. Florida treats

a defendant’s request for self

- representation and a renewal of the offer for appointed counsel differently and requir es a Faretta inquiry for the former, but not the latter. Noetzel v. State , 328 So. 3d 933 (Fla. 2021). The certificate we issued is limited to the failure to renew an o ffer t o appoint counse l

.The district court did not err by denying Brewster’s petition for a writ of habeas corpus. The state postconviction court reasonably could have determined that appellate counsel ’s choice

not to raise a “nonmeritorious claim . . . [did] not constitute ineffective assistance of counsel

. ” See Diaz v. Sec’y for the Dep’t of Corr. , 402 F.3d 1136, 1145 (11th Cir. 2005). Th at determination of the state court , even if “incorrect or erroneous , ” is not “objectively unreasonable

. ” See Lockyer , 538 U.S. at 75

. IV. CONCLUSION
We AFFIRM the denial of Brewster’s petition for a writ of habeas corpus. USCA11 Case: 21-11058 Date Filed: 03/21/2022 Page: 10 of 10