*

Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge

for the Seventh Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-4217.

Emilio J. CHATELOIN, Petitioner-Appellant,

v.

Harry K. SINGLETARY, Secretary, Department of Corrections, State

of Florida, Respondent-Appellee.

July 26, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 92-2189 CIV-DTKH), Daniel T.K. Hurley,

Judge.

Before HATCHETT and ANDERSON, Circuit Judges, and WOOD*

, Senior

Circuit Judge.

HATCHETT, Circuit Judge:

In this appeal, the court affirms the district court's ruling

that trial and appellate counsel did not render ineffective

assistance to the appellant.

FACTS AND PROCEDURAL HISTORY

On February 7, 1986, Emilio J. Chateloin and Angel Rodriguez

agreed to kidnap Geraldo Del Pino and Esteban Lemus and hold them

for ransom believing that they had cheated them in a drug

transaction. Later that day, Chateloin and Rodriguez accompanied

Lemus and Del Pino to an unknown destination. While riding in the

back seat of Lemus's Cadillac, Chateloin shot Lemus and Del Pino in

the back of the head. After the shooting, Rodriguez got into the

driver's seat, and he and Chateloin began driving around the city

in search of a place to drop off the bodies. After removing all
the jewelry from the victims, Chateloin and Rodriguez threw their

bodies off the Julia Tuttle Causeway into the water. Later that

evening, Lino Marante attempted to dispose of Lemus's car. Marante

drove the car to a residential neighborhood, ignited a sock and

placed it into the gas tank of the car. Residents in that

neighborhood notified the police of the burning car. After

extinguishing the fire, the police discovered large quantities of

blood and brain matter in the vehicle. The police also found wet

sand on the floor of the vehicle underneath the steering wheel. On

February 8, 1986, the police found Del Pino and Lemus's bodies on

the shore along side of the Julia Tuttle Causeway. Sometime later,

the police arrested Marante, Rodriguez, and Chateloin.

On May 29, 1986, Marante pleaded guilty to arson, accessory

after the fact, and conspiracy. On June 1, 1986, a state grand

jury returned an indictment charging Chateloin and Rodriguez with

first-degree murder in violation of Florida Statutes § 782.04,

armed robbery in violation of Florida Statutes § 812.13, conspiracy

to commit armed robbery and kidnapping in violation of Florida

Statutes §§ 812.13, 787.01, 775.087, and 777.04, and possession of

a firearm while engaged in a criminal offense in violation of

Florida Statutes § 790.07. On October 22, 1986, the state court

held a pretrial hearing. At the pretrial hearing, the state

represented that it would not seek the death penalty against either

Chateloin or Rodriguez, at which time Rodriguez's counsel stated:

"We waive a twelve-person jury." Chateloin's trial counsel, Vance

Carr, did not speak at the hearing. The next day, on October 22,

1986, Rodriguez entered into a negotiated plea with the state
agreeing to plead guilty in exchange for a ten-year sentence.

On November 12, 1995, the state tried Chateloin before a

six-member jury. Rodriguez and Marante testified and identified

Chateloin as the instigator of the kidnapping plot. Rodriguez also

identified Chateloin as the shooter. On November 14, 1986, the

case went to the jury. Shortly after jury deliberations commenced,

the jury submitted the following note to the trial court: "Please

explain if the defendant is guilty of [possession of a firearm

while engaged in a criminal offense as charged in] the indictment

if the state does not prove who held the gun." The trial judge

responded: "The law is as clear as I can make it. You must apply

the law to the facts and reach a decision." Two hours later, the

jury found Chateloin guilty on all counts. On January 22, 1987,

the trial court sentenced Chateloin to consecutive life sentences

with fifty years minimum mandatory. Chateloin also received

fifteen years concurrent on the robbery charges and five years

concurrent on the conspiracy and possession of firearm charges.

On February 20, 1987, Chateloin filed a timely notice of

appeal to the Third District Court of Appeal of Florida (Third

District). Sometime later, the state appointed Chateloin appellate

counsel. On August 27, 1987, Chateloin's appellate counsel filed

a brief stating that he could discern no appealable issues. The

Third District upheld Chateloin's conviction in a per curiam

memorandum opinion. In November of 1989, Chateloin filed a motion

for post-conviction relief pursuant to Florida Rule of Criminal

Procedure 3.850, claiming ineffective assistance of trial and

appellate counsel and denial of equal protection in the trial
 **Chateloin also asserted that the state denied him due

process and equal protection because it tried him before a

six-person jury. The magistrate judge found that this assertion

did not constitute a cognizable claim because the United States

Constitution does not grant criminal defendants a right to a

trial before a twelve-person jury. 

court. The trial judge denied Chateloin's motion. On February 4,

1991, Chateloin appealed the trial court's denial of 3.850 relief

to the Third District. The Third District affirmed the trial court

without an opinion.

On September 21, 1992, Chateloin filed a petition for habeas

corpus relief in the Southern District of Florida pursuant to 28

U.S.C. § 2254 asserting that he received ineffective assistance of

trial and appellate counsel. ** On March 23, 1994, a magistrate

judge held an evidentiary hearing on Chateloin's petition for writ

of habeas corpus. On December 28, 1994, the magistrate judge

issued a report recommending to the district court that it deny

Chateloin habeas corpus relief. Chateloin timely filed objections

to the magistrate judge's report and recommendation. On January

24, 1995, the district court, adopting the magistrate judge's

report and recommendation, denied Chateloin habeas corpus relief.

CONTENTIONS

Chateloin contends that he received ineffective assistance of

trial counsel because counsel waived his right to a twelve-person

jury after the state had independently decided not to seek the

death penalty. Chateloin argues that trial counsel's waiver of the

right to a twelve-person jury was objectively unreasonable because

he gave up a fundamental right of great importance while receiving

nothing in exchange for the waiver. Chateloin also contends that
he received ineffective assistance of appellate counsel because

appellate counsel, on direct appeal, failed to argue that the

record did not show his personal waiver and failed to argue that

the record did not show any expressed waiver from his trial

counsel.

The state contends that Chateloin's trial counsel made a

strategic decision to waive the right to a twelve-person jury. The

state also contends that appellate counsel's failure to raise the

lack of personal waiver and the lack of trial counsel's express

waiver of the twelve-person jury fell within the wide range of

professionally competent assistance.

DISCUSSION

 We review the district court's denial of habeas corpus relief

de novo. Agan v. Singletary, 12 F.3d 1012, 1017 (11th Cir.1994).

The Sixth Amendment guarantees criminal defendants the right to

effective assistance of counsel. Strickland v. Washington, 466

U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674 (1984). In

order to prevail on a claim of ineffective assistance of counsel,

a defendant must show: (1) that his counsel's assistance fell

below an objective standard of reasonableness; and (2) that the

deficient performance prejudiced the defense such that it deprived

the defendant of a fair trial. Strickland, 466 U.S. at 687, 104

S.Ct. at 2064; Matire v. Wainwright, 811 F.2d 1430, 1435 (11th

Cir.1987) ("The standard for ineffective assistance is the same for

trial and appellate counsel."). A strong presumption exists that

the challenged action constitutes sound trial strategy. Courts

therefore must review the reasonableness of counsel's assistance in
light of the facts of the particular case at the time of counsel's

conduct.

A convicted defendant making a claim of ineffective assistance

must identify the acts or omissions of counsel that are

alleged not to have been the result of reasonable professional

judgment. The court must then determine whether, in light of

all the circumstances, the identified acts or omissions were

outside the wide range of professionally competent assistance.

Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. In this case,

Chateloin contends that he received ineffective assistance of

counsel at both the trial and appellate level. We first address

Chateloin's ineffective assistance claim against his trial counsel.

A. Ineffective Assistance of Trial Counsel

 Chateloin contends that he received ineffective assistance of

trial counsel because his trial counsel waived the right to a

twelve-person jury without receiving anything in return for the

waiver. Florida law guarantees criminal defendants a twelve-person

jury in all capital cases. Fla.Stat.Ann. § 913.10 (West 1985).

Where the state waives its right to seek the death penalty in a

capital case, the defendant may agree, with the consent of the

state and the approval of the court, to a jury of six persons.

State v. Griffith, 561 So.2d 528 (Fla.1990).

In this case, the district court assumed for the purpose of

Chateloin's claim that, as a matter of law, a trial counsel's

performance is objectively unreasonable under Strickland where

counsel waives his client's right to a twelve-person jury and

receives nothing in return. The district court found, however,

that Chateloin's trial counsel waived the right to a twelve-person

jury in exchange for the state's waiver of the death penalty.

Chateloin argues that the district court's finding that Carr waived
the twelve-person jury in exchange for the waiver of the death

penalty is clearly erroneous because Carr did not testify that he

had to waive the twelve-person jury to secure a death penalty

waiver. In fact, Chateloin notes that Carr testified that he had

no specific recollection of bargaining for the death penalty

waiver.

In further support of his argument that Carr waived his right

to a twelve-person jury after the state had already told Carr that

it intended to waive the death penalty, Chateloin asserts that Carr

did not discuss the death penalty with him at anytime prior to

trial or inform him of his right to a twelve-person jury. The

district court discredited Chateloin's testimony. Based on Carr's

testimony regarding his habits and patterns in death penalty cases,

the district court found that Carr would not have allowed Chateloin

to proceed before a jury of only six persons had the state not

waived the death penalty in return. Consequently, the district

court held that Chateloin suffered no Sixth Amendment violation of

his right to effective representation at trial.

 We review the district court's factual findings for clear

error giving due regard to the district court's opportunity to

judge the credibility of witnesses. Amadeo v. Zant, 486 U.S. 214,

223, 108 S.Ct. 1771, 1777, 100 L.Ed.2d 249 (1988); Smith v.

Singletary, 61 F.3d 815, 817 (11th Cir.1995). Because the

determination of whether Carr waived Chateloin's right to a

twelve-person jury in return for the state's waiver of the death

penalty is a factual one, we must affirm the district court unless

we are left with "the definite and firm conviction that a mistake
has been committed." United States v. United States Gypsum Co.,

333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Like

the district court, we assume for purposes of this discussion that

trial counsel's waiver of the right to a twelve-person jury for

"nothing" in return is objectively unreasonable.

 In this case, both Carr and the state prosecutor lacked

specific recollection of their conversations concerning the death

penalty in this case. At the time of the waiver, the state,

however, regularly entered into agreements with defense counsel to

waive the death penalty in exchange for the defendant's waiver of

his right to a twelve-person jury. The state prosecutor testified

that the state may have entered into such an agreement in this

case. No documentary evidence exists with respect to the existence

or nonexistence of such an agreement. Carr testified, at the

evidentiary hearing, that in defending any capital case, his single

most important objective is to prevent the client from receiving a

sentence of death. Carr also testified that it was his pattern in

capital cases to "give and take a little bit" where necessary to

get the state to drop the death penalty. Carr further testified

that he believed it was reasonable to give up the right to a

twelve-person jury in exchange for the state not seeking the death

penalty against his client and that he considered such action a

strategic move. In addition, Carr testified that he always

explained and discussed with his client the possibility that the

state would seek the death penalty for the capital offense.

The district court in crediting Carr's testimony noted that

prior to representing Chateloin, Carr had handled numerous homicide
cases as an assistant state attorney and in private practice. The

district court also noted that in 1987, Carr actively represented

two people who received the death penalty. Based on the facts of

this case and the evidence in the record, we cannot conclude that

the district court's finding that counsel waived the right to a

twelve-person jury in exchange for the waiver of the death penalty

constitutes clear error. Therefore, we affirm the denial of habeas

corpus on Chateloin's ineffective assistance of trial counsel

claim.

B. Ineffective Assistance of Appellate Counsel

We now address Chateloin's ineffective assistance of appellate

counsel claims. Chateloin contends that his appellate counsel

rendered ineffective assistance for failing to raise on appeal the

fact that the record did not show his personal waiver of the

twelve-person jury. Chateloin also contends that his appellate

counsel rendered ineffective assistance of counsel because he

failed to raise on appeal that the record did not show any express

waiver—either by him or his counsel. The district court found that

in 1986 and 1987, the time of Chateloin's direct appeal, Florida

law did not clearly require either personal waiver of a

twelve-person jury on the record or a written waiver of the right

to a twelve-person jury. Since the time of Chateloin's direct

appeal, the Florida Supreme Court in State v. Griffith has held

that an effective waiver of the right to a twelve-person jury does

not require an on-the-record showing of the defendant's personal

knowledge and intelligent waiver. Griffith, 561 So.2d at 530.

Griffith, however, is not relevant to this inquiry because, as
previously discussed, we review the reasonableness of counsel's

assistance in light of the facts and law that existed at the time

of the challenged conduct.

Chateloin argues that had the appellate counsel raised the

lack of personal waiver and express waiver on appeal state law

would have entitled him to an automatic reversal on direct review.

In support of his argument that Florida law at the time of his

direct appeal required a written waiver of the right to a

twelve-person jury, he cites Jones v. State, 452 So.2d 643 (Fla.

4th D.C.A.1984). In Jones, the defendant exercised his right to a

twelve-person jury, and the court empaneled a jury of twelve

persons. Prior to the trial, however, the state and defense

counsel decided not to choose an alternate juror and agreed in the

event a juror became unable to serve, the trial would continue with

the eleven remaining jurors. During the trial, one of the twelve

jurors injured herself and requested the court to excuse her from

jury duty. The defendant's counsel agreed to the dismissal of this

juror. The court continued the trial with the remaining eleven

jurors as previously stipulated. The Jones court reversed and

remanded for a new trial, finding that the joint stipulation prior

to the commencement of the trial did not constitute an effective

waiver of the defendant's right to a twelve-person jury.

Specifically, the court held that where a trial is held before an

eleven-person jury, the defendant must sign a written waiver of his

right to a twelve-person jury.

 Chateloin argues, notwithstanding the factual differences of

Jones and this case, that the holding in Jones entitles him to a
new trial because this record lacks a written waiver of his right

to a twelve-person jury. Chateloin also argues that appellate

counsel rendered ineffective assistance through failing to raise

the lack of personal waiver in the record. He cites Nova v. State

for the proposition that a defendant must voluntarily and

intelligently waive his right to a twelve-person jury in order to

constitute a valid waiver. Nova v. State, 439 So.2d 255, 262

(Fla.3d D.C.A.1983). We reject Chateloin's contention that the law

at the time of his direct appeal clearly established that waivers

of the right to a twelve-person jury in a capital case required

that the defendant personally waive his right to a twelve-person

jury in writing or on the record in open court. We note that

during the same period of time of the Jones and Nova decisions, the

state court decided Groomes v. State, 401 So.2d 1139 (Fla.3d

D.C.A.1981). In Groomes, the court declined to address the

defendant's assertion that the waiver of his right to a

twelve-person jury was not knowingly and intelligently made,

finding that the defendant did not properly preserve this issue for

review because he failed to object to the stipulation during the

trial. Groomes, 401 So.2d at 1140. Like Groomes, Chateloin did

not object to the waiver of his right to a twelve-person jury.

Accordingly, it was reasonable for Chateloin's appellate counsel to

believe that the court would not entertain the "knowing and

intelligent waiver" claim.

Although the Third District decided Groomes prior to Jones and

Nova, Groomes remained good law at the time of Chateloin's direct

appeal to the state court. Moreover, Nova does not support
Chateloin's contention that state law requires the defendant to

personally waive his right to a twelve-person jury because the

court in Nova did not require that the defendant personally waive

his right to a twelve-person jury in open court. In fact, the

holding in Nova was much more limited. The Nova court specifically

held that where the defendant did not receive the agreed upon

sentence in exchange for his waiver of the twelve-person jury, the

waiver is involuntary and therefore must be set aside. Nova, 439

So.2d at 263. Because the case law at the time of Chateloin's

direct appeal did not clearly require a defendant to either

personally waive his right to a twelve-person jury in open court or

sign a written waiver of such right, we conclude that Chateloin's

appellate counsel's failure to raise the lack of personal waiver

claim did not fall below an objective standard of reasonableness.

 Similarly, we reject Chateloin's argument that Rodriguez's

counsel did not effectively waive Chateloin's right to a

twelve-person jury when he stated, speaking on behalf of himself

and Carr, Chateloin's trial counsel, at the pretrial hearing, that

"We waive a twelve-person jury." In rejecting this argument, we

note that Carr was present during Rodriguez's counsel statement and

did not object to counsel's representation to the court.

Accordingly, we conclude that appellate counsel's performance did

not prejudice the defense such that it deprived the defendant of a

fair trial.

CONCLUSION

For the foregoing reasons, we conclude that the district court

properly denied Chateloin's petition for habeas corpus relief.
AFFIRMED.