FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 11, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-13349

Non-Argument Calendar

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D. C. Docket No. 08-80731-CV-DTKH

ROBERT CARRATELLI,

Petitioner-Appellant,

versus

ERNEST STEPP,

the Warden of South Bay

Correctional Institution,

SECRETARY, WALTER A. MCNEIL,

Florida Department of Corrections

Secretary Florida Department of Corrections,

BILL MCCOLLUM,

Attorney General State of Florida,

Respondents-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(June 11, 2010)
Before DUBINA, Chief Judge, CARNES and MARTIN, Circuit Judges.

PER CURIAM:

Appellant Robert Carratelli, a Florida state prisoner serving a 15-year

sentence for his conviction for six counts of vehicular manslaughter under Fla.

Stat. § 782.071(1), appeals the district court’s denial of his 28 U.S.C. § 2254

petition. On appeal, he argues that his trial attorneys were constitutionally

ineffective for failing to properly preserve for appeal cause challenges to jurors.

He contends that the state court decisions were contrary to or were unreasonable

applications of clearly established federal law when the state courts determined

whether or not he was prejudiced by his attorneys’ failures at trial, instead of

examining whether he was prejudiced on appeal. He also argues that, in any event,

the state courts erred by concluding that a juror—Inman—was not actually biased,

and therefore that he was prejudiced at trial.

When examining a district court’s denial of a § 2254 habeas petition, “we

review questions of law and mixed questions of law and fact de novo, and findings

of fact for clear error.” LeCroy v. Sec'y, Fla. Dep't of Corr., 421 F.3d 1237, 1259

(11th Cir. 2005). The district court’s determination that the state court decision

was reasonable is reviewed de novo. Id.

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

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a federal court may only grant habeas relief with respect to a claim adjudicated in

state court if the state court proceedings: “(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);

Maharaj v. Sec’y Fla. Dep’t. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). “[A]

determination of a factual issue made by a State court shall be presumed to be

correct. The applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

In Florida, “to preserve for appellate review a claim that the trial court

improperly denied a cause challenge to a juror, a defendant must exhaust his

peremptory challenges, request an additional peremptory challenge from the court,

and demonstrate that an objectionable juror was seated.” Jenkins v. State, 824 So.

2d 977, 981 (Fla. Dist. Ct. App. 2002). When the record demonstrates a properly

preserved objection, and the court finds error involving the seating of an

objectionable juror on direct appeal, “reversal is automatic, even where the trial is

otherwise perfect, even if the questioned juror actually served with the wisdom of

Solomon.” Carratelli v. State, 832 So. 2d 850, 857 (Fla. Dist. Ct. App. 2002).

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However, when the issue is raised in postconviction proceedings without being

properly preserved, the defendant must show that a biased juror actually served on

the jury. Jenkins, 824 So. 2d at 982.

Under the Sixth Amendment of the Constitution, a defendant has the right to

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104

S. Ct. 2052, 2063-64 (1984). To establish ineffective assistance of counsel, a

defendant must show: (1) that counsel’s representation fell below an objective

standard of reasonableness, and (2) that the defendant was prejudiced as a result,

meaning that there is a reasonable probability that, but for counsel’s errors, the

result of the proceeding would have been different. Id. at 688, 104 S. Ct. at 2065.

In Roe v. Flores-Ortega, the Supreme Court examined a case involving trial

counsel’s failure to file a notice of appeal on behalf of a defendant. 528 U.S. 470,

474, 120 S. Ct. 1029, 1033 (2000). The Supreme Court held that “when counsel's

constitutionally deficient performance deprives a defendant of an appeal that he

otherwise would have taken, the defendant has made out a successful ineffective

assistance of counsel claim entitling him to an appeal.” Id. at 484, 120 S. Ct. at

1039. The Court noted that counsel’s performance deprived the defendant of an

appellate proceeding altogether.

In Strickland, the Supreme Court held that “[w]hen a defendant challenges a

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conviction, the question is whether there is a reasonable probability that, absent the

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

Strickland, 466 U.S. at 695, 104 S. Ct. at 2068-69. It contrasted this with a

prejudice inquiry regarding ineffective assistance at the sentencing phase of a

capital case, at issue there, where the inquiry was whether there was a reasonable

possibility the factfinder would have concluded that the balance of mitigating and

aggravating circumstances did not warrant the death penalty. Id. at 695, 104 S. Ct.

at 2069.

In Davis v. Sec. for Dep’t of Corrs., the petitioner argued that his trial

attorney was ineffective, under Strickland, for failing to preserve a Batson claim

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for appeal. Davis, 341 F.3d 1310, 1313 (11th Cir. 2003). We determined that the

dispute was whether this failure prejudiced Davis’s trial or his appeal. Id. at 1314.

We noted the Supreme Court’s holding in Flores-Ortega “thus establishes that the

prejudice showing required by Strickland is not always fastened to the forum in

which counsel performs deficiently: even when it is trial counsel who represents a

client ineffectively in the trial court, the relevant focus in assessing prejudice may

be the client's appeal.” Id. at 1315. We observed that, in Davis’s case, “the only

effect of trial counsel’s negligence was on Davis’ appeal.” Id. Therefore, we held

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. (1986). 1

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that “when a defendant raises the unusual claim that trial counsel, while efficacious

in raising an issue, nonetheless failed to preserve it for appeal, the appropriate

prejudice inquiry asks whether there is a reasonable likelihood of a more favorable

outcome on appeal had the claim been preserved.” Id. at 1316. Of significance, in

coming to this conclusion, we noted that§ 2254(d)(1) deference, necessitating a

finding that the state court’s ruling was contrary to or an unreasonable application

of established federal law, was not required because the state courts did not resolve

the merits of his case. Id. at 1313.

In Purvis v. Crosby, 451 F.3d 734, 739-40 (11th Cir. 2006), the defendant

argued that his trial counsel’s failure to object to the state court clearing the

courtroom of most of the public during a young victim’s testimony failed to

preserve the issue for appeal, and that, had it been preserved, the case would have

been reversed. Purvis, 451 F.3d at 739. We noted that, first, had he objected at

trial, the trial court might have agreed with the defendant and corrected the error.

Id. Second, we cited Strickland for the proposition that when an error is claimed at

the guilt stage of a trial, the focus of the prejudice inquiry is the result at trial. Id.

at 739 (citing Strickland, 466 U.S. at 694-95, 103 S. Ct. at 2068-69). We

distinguished our holding in Davis by noting that “because the failure of counsel

was solely in his role as appellate counsel at trial (those are not the words we used

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in Davis, but it is what we meant), the prejudice inquiry should focus on the effect

that counsel’s omission at trial had on the appeal.” Id. at 739 (emphasis added).

We noted that this was distinguishable from another case, Jackson v. Herring, 42

F.3d 1350 (11th Cir. 1995), where the failure to raise a Batson complaint was held

to be a trial failure, not an appellate one, because in Jackson the attorney was

entirely silent and did not bring the issue to the court’s attention at all. Purvis, 451

F.3d at 739 (citing Jackson, 42 F.3d at 1361-62). We noted that Purvis’s case was

similar to Jackson, in that his attorney did not raise the issue at all, and therefore

the prejudice inquiry was focused on the outcome at trial. Id. at 739-40. Notably,

we stated that Purvis, unlike Davis, was not:

the “unusual case” involving the “peculiar circumstances” where

counsel recognized and pressed an issue before the trial court and then

neglected to take some step that is relevant only to the appellate stage.

This is the more typical ineffective assistance of trial counsel case

where the claim is that trial counsel did not raise the issue at all. The

broad, generally applicable rule of measuring prejudice in terms of

impact on the result of the trial instead of on the result of the appeal,

which is set out in Strickland and followed in decisions like Jackson,

applies; the razor thin exception recognized in the Davis case does

not.

Id. at 740. Finally, we also stated, “[o]ur reasoning and the result in Davis

arguably were pushing things given what the Supreme Court said in Strickland

about measuring the effect of counsel's errors at the guilt stage of a trial against the

result of the trial instead of the appeal.” Id. at 739.

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Our decision in Davis is not clearly-established federal law under the

AEDPA. See Hammond v. Hall, 586 F.3d 1289, 1340 n.21 (11th Cir. 2009). In

any event, assuming arguendo that the facts of this case are similar to Davis, the

standard of review is different. In Davis, the court’s review was de novo, and in

this case we review whether the state courts’ decisions were contrary to or an

unreasonable application of clearly established federal law. In Strickland, the

Supreme Court indicated that the prejudice inquiry focuses on the forum where it

occurred. In Flores-Ortega, it indicated that this is not always the case, but it did

not address a situation such as this one, where the issue was raised but not properly

preserved. Thus, there is no clearly established federal law by the Supreme Court

specifically addressing whether the federal court should examine the prejudice on

appeal rather than at trial in a case like this one. Accordingly, the district court

correctly affirmed the state court decisions holding that the relevant prejudice

inquiry should focus on trial, not the appeal, under the facts presented in this case.

Under Florida law, to obtain relief in a postconviction motion where the

alleged error is counsel’s failure to preserve a cause challenge, a movant must

demonstrate that a biased juror actually served on the jury. Carratelli v. State, 961

So. 2d 312, 324 (Fla. 2007). A juror is competent if he or she “can lay aside any

bias or prejudice and render his verdict solely upon the evidence presented and the

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instructions on the law given to him by the court.” Lusk v. State, 446 So. 2d 1038,

1041 (Fla. 1984). The defendant must demonstrate that the juror was not impartial,

meaning he or she was biased against the defendant, and the bias was evidenced on

the face of the record. Carratelli, 961 So. 2d at 324.

Carratelli has not demonstrated by clear and convincing evidence that the

state courts erroneously concluded that Inman was not actually biased. The court

found that Inman admitted to having some exposure to the case and having been

affected by it, but he also indicated that he had not formed a definitive opinion and

would listen to all the evidence with a blank slate. Under the circumstances,

Carratelli has not rebutted by clear and convincing evidence the state court’s

conclusion. Therefore, Carratelli did not demonstrate he was prejudiced at trial by

his attorneys’ failure to obtain a definitive ruling on the denial of his motion to

strike Inman and other jurors for cause.

For the aforementioned reasons, we affirm the district court’s judgment

denying Carratelli federal habeas relief.

AFFIRMED.

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