[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-12898

Non-Argument Calendar

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D.C. Docket No. 4:18-cv-00309-RH-MJF

ERIC MICHAEL CRAPSER, 

 Petitioner-Appellant,

 versus

SECRETARY, DEPARTMENT OF CORRECTIONS, 

 Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Florida

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(May 17, 2021)

Before ROSENBAUM, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Eric Crapser, a counseled Florida prisoner, appeals the district court’s denial 

of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. The district 

court granted a certificate of appealability as to whether trial counsel rendered 

ineffective assistance by failing to request a lesser-included-offense instruction. 

Crapser was charged with sexual battery (Count I) and lewd or lascivious 

molestation (Count II) of his seven-year-old stepdaughter. Crapser’s trial counsel 

requested a lesser-included-offense instruction for Count I, but not for Count II. The 

jury ultimately found Crapser guilty of misdemeanor battery, a lesser-included 

offense of Count I, and of lewd or lascivious molestation as charged in Count II. He 

was sentenced to time served for the battery offense and twenty-five years in prison 

for the molestation offense, followed by a lifetime on sex offender probation. The 

Florida courts affirmed his convictions and denied his motion for postconviction 

relief. Crapser then filed a federal § 2254 petition, which the district court denied.

Crapser appeals, arguing that his trial counsel rendered ineffective assistance 

under Strickland v. Washington, 466 U.S. 668 (1984), by failing to request a lesserincluded-offense jury instruction as to Count II. He contends that, had his trial 

counsel requested such an instruction, there is a reasonable probability that the jury 

would have convicted him of the lesser offense, as it did on Count I, notwithstanding 

that the evidence supported his conviction for the greater offense. 

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We review the district court’s denial of a state prisoner’s § 2254 petition de 

novo but review the state habeas court’s decision with deference. Reed v. Sec’y, Fla. 

Dep’t of Corr., 593 F.3d 1217, 1239 (11th Cir. 2010); Wright v. Sec’y for Dep’t of 

Corr., 278 F.3d 1245, 1254–55 (11th Cir. 2002). 

To succeed on an ineffective-assistance-of-counsel claim, a defendant must 

show that his counsel’s performance was deficient and that the deficient 

performance prejudiced his defense. Strickland, 466 U.S. at 687. The prejudice 

prong requires the petitioner to show that there is a “reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Id. at 694. In evaluating prejudice, according to Strickland, “a court 

should presume, absent challenge to the judgment on grounds of evidentiary 

insufficiency, that the judge or jury acted according to law. An assessment of the 

likelihood of a result more favorable to the defendant must exclude the possibility 

of arbitrariness, whimsy, caprice, ‘nullification,’ and the like.” Id. In other words, 

“[a] defendant has no entitlement to the luck of a lawless decisionmaker.” Id. at 695. 

Under 28 U.S.C. § 2254(d), we may grant the writ of habeas corpus only if 

the Florida appellate court’s decision denying Crapser relief on his Strickland claim 

“was contrary to, or involved an unreasonable application of” Strickland, or “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). 

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Crapser relies on the “unreasonable application” prong, arguing that the 

Florida Supreme Court’s decision in Sanders v. State, 946 So. 2d 953, 960 (Fla. 

2006), which held that the failure to request an instruction on a lesser-included

offense cannot establish Strickland prejudice as a matter of law, constitutes an 

unreasonable application of Strickland.

1 Crapser asserts that Strickland prohibits 

such “bright-line” rules and instead requires courts to conduct case-specific 

determinations of performance and prejudice. 

In Sanders, the Florida Supreme Court explained that ineffective-assistance 

claims alleging a failure to request an instruction on a lesser-included offense cannot 

establish Strickland prejudice because they are based solely on the possibility of a 

“jury pardon.” A jury pardon “allows the jury to acquit a defendant of a greater 

offense and convict him or her of a lesser one even though the evidence supports 

both crimes.” 946 So. 2d at 957–58. “By definition,” Sanders explains, “jury 

pardons violate the oath jurors must take before trial, as well as the instructions the 

trial court gives them.” Id. at 958. These instructions require a jury to “render a true 

verdict according to the law and the evidence” and to convict of a lesser-included 

offense “only if it decides that the main accusation has not been proved beyond a 

reasonable doubt.” Id. So when a jury has convicted a defendant of a greater 

1 Crapser’s factual claim—that the state court made an unreasonable determination of the 

facts by failing to find prejudice—is entirely derivative of his legal challenge. 

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offense, it has decided that guilt was proved beyond a reasonable doubt. Id. “To 

assume that, given the choice, the jury would now acquit the defendant of the same 

crime of which it convicted him, and instead convict of a lesser offense, is to assume 

that the jury would disregard its oath and the trial court’s instructions.” Id. In other 

words, “any finding of prejudice resulting from defense counsel’s failure to request 

an instruction on lesser-included offenses necessarily would be based on a faulty 

premise: that a reasonable probability exists that, if given the choice, a jury would 

violate its oath, disregard the law, and ignore the trial court’s instructions.” Id. at 

959. Because defendants are not entitled to “the luck of a lawless decisionmaker” 

under Strickland, the Court stated, the possibility of a jury pardon, which does not 

call into question the validity of the offense of conviction, “cannot form the basis for 

a finding of prejudice.” Id. at 960. 

Here, Crapser is not entitled to relief under § 2254. Under Florida law, a jury 

must “render a true verdict according to the law and the evidence” and, therefore, a 

jury is permitted to convict of a lesser included offense “only if it decides that the 

main accusation has not been proved beyond a reasonable doubt.” Id. at 958; see 

Williams v. Singletary, 78 F.3d 1510, 1515 (11th Cir. 1996) (stating that we are

bound by decisions of the relevant state supreme court when addressing issues of 

state law). Strickland requires that we assume the jury in Crapser’s trial followed 

this rule of law. See Strickland, 466 U.S. at 694 (“[A] court should presume, absent 

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challenge to the judgment on grounds of evidentiary insufficiency, that the judge or 

jury acted according to law.”). The jury concluded that the evidence against him 

supported his conviction for the molestation offense on which it was instructed. 

Therefore, even if the lesser-offense instructions had been given, the jury would not 

have been permitted to convict Crapser of the lesser-included offenses because it 

had concluded that the evidence established that he was guilty of the greater 

offenses. See Sanders, 946 So. 2d at 958. 

Crapser’s claim does not undermine the validity of his conviction or sentence 

on Count II.

2

 His assertion of prejudice depends, as he admits, on the possibility of 

a jury pardon—that is, that the jury would have disregarded its oath and violated its 

instructions by acquitting him of the greater offense and convicting him of a lesser 

one even though the evidence supported both crimes. See id. at 957–58. But he says 

that the possibility of a jury pardon is sufficient to establish prejudice in this case 

because the jury’s verdict affirmatively demonstrates that it violated its oath by 

convicting him of a lesser-included offense on Count I, despite evidence supporting 

the greater offense. So in his view, there is a reasonable probability that the jury 

would have exercised the same leniency had trial counsel requested a lesserincluded-offense instruction on Count II. 

2 Arguably, therefore, trial counsel’s alleged ineffective assistance did not result in 

Crapser’s being held “in custody in violation of the Constitution or laws or treaties of the United 

States.” 28 U.S.C. § 2254(a). 

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Even if we assume he is right about that as a practical matter, though, that 

reasoning cannot be squared with Strickland. In Strickland, the Supreme Court made 

clear that “[a] defendant has no entitlement to the luck of a lawless decisionmaker”

and that the prejudice inquiry excludes the “particular idiosyncrasies” of the jury and 

“the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like,” such 

as a jury pardon. 466 U.S. at 695. These limitations follow from the nature of the 

prejudice inquiry, which is “whether there is a reasonable probability that, absent the 

errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. It is 

not, as Crapser proposes, whether the jury would have reached a different verdict for 

any reason, such as a desire for mercy or leniency. 

Because Crapser is not entitled to the “luck of a lawless decisionmaker,”

which is essentially all that he seeks, the state court reasonably concluded that he 

had no recourse under Strickland, notwithstanding that the outcome of the trial may 

have been more favorable had counsel requested lesser-included instructions as to 

Count II. To the extent there is some fairminded disagreement among jurists as to 

whether the failure to request a lesser-included-offense instruction can establish 

Strickland prejudice, see Crace v. Herzog, 798 F.3d 840, 849 (9th Cir. 2015) 

(“Nothing in Strickland, therefore, forbids courts from considering the possibility 

that a jury would have convicted on a lesser included offense if given the option to 

do so.”), that is not enough to show that the state court’s decision was an 

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unreasonable application of Strickland. See Harrington v. Richter, 562 U.S. 86, 101 

(2011) (“A state court’s determination that a claim lacks merit precludes federal 

habeas relief so long as fairminded jurists could disagree on the correctness of the 

state court’s decision.” (quotation marks omitted)). 

AFFIRMED.

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