[ DO NOT PUBLISH] 

## In the 

# United States Court of Appeals For the Eleventh Circuit

____________________ No. 20

- 14106 Non

- Argument Calendar

____________________
TROY CURRY

- PENNAMON, Petitioner

- Appellee

- Cross Appellant,

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

- Appellants

- Cross Appellees.

____________________ Appeal s from the United States Di strict Court for the Middle District of Florida D.C. Docket No. 3:18

- cv
- 01528

- HLA

- PDB

____________________ USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 1 of 172 Opinion of the Court 20

- 14106

Before WILLIAM PRYOR, Chief Judge, GRANT and BRASHER, Circuit Judges. PER CURIAM: The key issue in this appeal is whether the district court erred when it grant ed Troy Curry

- Pennamon , a Florida prisoner, a writ of habeas corpus

. See 28 U.S.C. § 2254. The district court vacated Curry

- Pennamon’ s conviction for attempted second

- degree murd er on the ground that his appellate counsel was ineffective for belatedly argu ing on rehearing that a jury instruction was fundamental error. But the district court rejected Curry

- Penn amon ’ s claims that his trial counsel was in effective

. Because the state courts did not unreasonably apply clearly established federal law when they rejected Curry

- Pennamon’s postconviction challenges , we affirm the denial of relief on his claims of ineffective trial counsel, reverse the grant of relief on his claim of ineffective appellate counsel, and remand for the district court to reinstate hi s c onviction. I. BACKGROUND We divide the background into three parts

. First, w e describe Curry

- Pennamon’s trial and direct appeal. Second, w e describe Curry

- P ennamon’ s unsuccessful state postconviction challenges t o trial counsel , s ee Fla. R. Crim. P. 3.850 , and to appellate counsel , s ee id. 9.141(d). Third, we describe Curry

- Pennamon’ s federal habeas corpus proceeding.
A. Curry

- Pennamon’s Trial and Direct Appe al USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 2 of 1720

- 14106 Opinion of the Court 3 In July 2013, a Florida court tried Curry

- Pennamon on charges of attempted first

- degree murder and of carr y i ng a concealed weapon. V ictim Ja c quan Holloway and his co workers at Walmart testified that Holloway b ecame angr y when hi s girlfriend and Curry

- Pennamon , who were also Walmart employees , flirt ed on the job . Holloway testified that he argu ed with Curry

- Pennamon inside Walmart and later in its parking lot, where Holloway threatened to “whip [Curry

- Pennamon’s] a ** ” and punched Curry

Pennamon , w ho fell to the ground. Curry

- Pennamon testified th at he armed himself with a gun he kept in h is glove compartment after seeing Holloway walk into the parking lot. An outdoor surveillance video camera record ed Curry

- Pennamon exit his vehicle and yell at Holloway . Holloway approached and then punched Curry

- Pennamon , who fell to the ground and drew his gun

. Curry

- Pennamon testifi ed that he stood up , chased , and shot at Holloway because it did not “register” that Holloway was running away . Curry

- Pennamon testified that Holloway “could have” turned and harm ed him

. After the state rested its case , and again at the end of all the eviden ce, defense counsel moved , without success, for a judgment of acquittal on both c ha rge s . C ounsel argued that, as an employee at his place of business, Curry

- Pennamon was not required to have a permit to carry a concealed weapon. S ee Fla. Stat. § 790.25(3)(n). The trial court rul ed that Curry

- Pennamon did not qualify for the exception because he wielded his gun outside of and not in defen se of Walmart. USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 3 of 174 Opinion of the Court 20

- 14106
The trial court instructed jurors t o consider all the circumstances in de termining whether Curry

- Pennamon’s use of deadly force was justif iable

. The tri al court stated that “ [a] person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another or the imminent commission of an aggravated assault upon

— against himself or another.” It instructed the jurors, “In deciding whether [Curry

- Pennamon] was justified in the use of deadly force, . . . [to] judge him by the circumstances by which he was surrounded at the time the force was used” and that “[b]ased upon appe arances, [he] must have actually believed the danger was real.” The trial court also instructed the jury about the right to stand one’s ground if faced with imminent injury:If the defendant was not engaged in an unlawful activity and was attacked in any

— in any place where he had a right to be, he had no duty to retreat and he had the right to stand his ground and meet force withforce, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another or to prevent the commission of a forcible felony. Finally, the trial court instructed the jurors that “[c] arrying a concealed weapon constitutes unlawful activity. ” The jury found Curry

- Pennamon guilty of attempted second

- degree murd er, as a lesser

- included offense of attempted first

degree murder, and of carrying a concealed weapon . The trial court sentenced Curry

- Pennamon to 25 years of imprisonment for USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 4 of 1720

- 14106 Opinion of the Court 5 attempted murder and to a concurrent term of five years of imprisonment for his firearm offense

. On direct appeal, appellate counsel succeeded in having Curry

- Pennamon ’s firearm conviction revers ed. Curry

- Pennamon v. State , 159 So. 3d 158 (Fla. Dist. Ct. App. 2015). The First District Court of Appeals rul ed that Curry

- Pennamon had been entitled to a judgment of acquittal based on the place

- of

- business exception, Fla. Stat. § 790.25(3)(n). 159 So. 3d at 159

– 60. The appellate court

summar il y rejected Curry

- Pennamon ’s two challenges to his attempted murder convictio n
. Id. at 159. Curry

- Pennamon argued that the trial court g a v e conflicting jury instructions on the duty to
retreat

— instructing that he had to exhaust all means of escape before using deadly force and that he had no duty to retreat

— which confused the jury and negated his only defense. Curry

- Pennamon also argued that the trial court failed to instruct the jury that self

defense was a defense to attempted second

- degree murder. Appellate counsel p etition ed for rehearing

. Counsel argued , for the first time, that fundamental error occurred when the trial court instructed the jury that carrying a concealed gun was unlawful and that Curry

- Pennamon had a duty to retreat when he carri ed the gun lawfully

. The S tate responded that Curry

- Pennamon could
not rais e an unpreserved issue on rehearing . The State also argue d that the allegedly improper jury instructions did not amount to fundamental error because Curry

- Pennamon could not have reasonably believe d deadly force was necessary when he shot the victim as he r a n away. The appellate court summarily denied the USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 5 of 176 Opinion of the Court 20

- 14106 petition

. Curry

- Pennamon v. State , No. 1D13

- 4327 (Fla. Dist. Ct. App. Mar. 25, 2015 ).

B. Curr y

- Pennamon’s Unsuccessful State Postconviction Fil ings Curry

- Pennamon moved for postconviction relief and argued that trial counsel was ineffective for failing to request t wo jury instructions

. See Fla. R. Crim. P. 3.850. First, Curry

- Pennamon argued that counsel should have request ed a jury instruction on the place

- of

- busin ess exception and object ed to the instruct ion that carrying a concealed weapon was an unlawful activity because it negated his self

- defense argument

. Second, Curry

- Pennamon argued that his counsel should have requested a special instruction that he could arm himself due to prior threats by Holloway

. The S tate opposed the motion. The state postconviction court denied Curry

- Pennamon’s motion. The court ruled that counsel was not required to request

a n instruction o n an exception that t he trial court twice rule d did not apply to the facts of the case

. The court also ruled that c ounsel’s failure to request a prior

- threats instruction did not prejudice Curry

- Pennamon b ecause the jury was instructed to consider all circu mstances to determine whether the use of deadly force was justifiable

. Next, Curry

- Pennamon petitioned the First District Court of Appeal for postconviction relief based on ineffective assistance of appellate counsel. See Fla. R. Crim. P. 9.141(d). Curry

- P ennamon argued that appellate counsel failed timely to challeng e the faulty USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 6 of 1720

- 14106 Opinion of the Court 7 jury instruction on carrying a concealed firearm

. T he appellate
court summarily d enied Curry

- Pennamon’s postconviction petition

. Curry

- Pennamon v. State , 197 So. 3d 45 (Fla. Dist. Ct. App. 2016). C. Federal Habeas Corpus Proceeding Curry

- Pennamon petition ed for a writ of habeas corpus on four grounds

. 28 U.S.C. § 2254. First, Curry

- Pennamon re a ssert ed that t rial counsel should have requested jury instruction s on the place

- of

- business exception and on prior threats. Next, Curry

- Pennamon argued , for the first time, that his t rial counsel should have request ed a n instruction that he could stand his ground and use deadly force as “necessary to prevent imminent dea th or great bodily harm , ” s ee Fla. Stat. § 776.012(1), regardless of whether he was engaged in an unlawful activity. And Curry

- Pennamon a rgued it did not matter the claim was procedurally defaulted because the failure of postconviction counsel “to raise th e[] claim[] in his original Rule 3.850 motion” provided cause to excuse the default. See Martinez v. Ryan , 566 U.S. 1 (2012). Finally , Curry

- Pennamon reasserte d that appellate counsel earlier should have challenge d the faulty instruction on carrying a concealed weapon

. The S tate opposed the petition . First , t he S tate argu ed that trial counsel did not have to raise the place

- of

- business exception issue a third time

. Second, t h e S tate argued that Curry

- Pennamon lacked cause to excuse his p rocedural default because his argument for trial counsel t o request a n instruction on section 776.012 was not substantial. See id. Alternatively, the S tate argued that trial USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 7 of 178 Opinion of the Court 20

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counsel’s inaction w as harmless because Curry

- Pennamon “was still accorded the pro tections of the Stand Your Ground law.” Third, the S tate argued that appellate counsel exercised reasonable professional judgment by arguing that the jury instructions were confusing, internally conflict ing , and negated Curry

- Pennamon’ s theory of self

- defense

. The district court rejected Curry

- Pennamon’s claims that trial counsel was ineffective, but it issued the writ on his claim involving appellate counsel. The district court r eason ed that appellate counsel was deficient in waiting until rehear ing to raise the strongest challenge to Curry

- Pennamon’ s attempted second

- degree murder conviction, which resulted in the motion being denied

on procedural grounds instead of being entertained on the merits

. A nd the district court r eason ed that a ppellate c ounsel’s error prejudiced Curry

- Pennamon because the jury would not have convicted him without the erroneous instruction that “painted [ him ]
as a non
- law

- abiding citizen who had a duty to retreat

. ” The district court refused to defer to the decision of the state court because it did not cite Strickland v . Washington , 466 U.S. 668 (1984), and, in the alternative, for unreasonabl y appl ying Strickland

. Both t he S tate and Curry

- Pennamon appealed . We granted Curry

- Pennamon a certificate of appeal ability to address his claims that his trial counsel was ineffective. See 28 U.S.C. § 2253(c)

. II. STANDARD OF REVIEW We review de novo the grant or denial of a petition for a USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 8 of 1720

- 14106 Opinion of the Court 9 writ of habeas corpus. Reed v. Sec’y, Fla. Dep’t of Corr. , 767 F.3d 1252, 126 0 (11th Cir. 2014)

. The Antiterrorism and Effective Death Penalty Act “imposes a highly deferential standard for evaluating
state

- court rulings.” Id. at 126 1 ( quoting Renico v. Lett , 559 U.S. 766, 773 (2010)). A state prisoner is entitled to a writ of h abeas corpus only if the state court reached a decision that “involved an unreasonable application of

. . . clearly established Federal law.” 28 U.S.C. § 2254(d)(1). T hat is, the state court must have “ identif ie [ d ] the correct governing legal principle fro m the Supreme Court ’ s decisions but unreasonably applie [d] that principle to the facts of the prisoner ’ s case.” Reed , 767 F.3d at 1260 (internal quotation marks omitted and alterations adopted). “ [ A ] n unreasonable applicationof . . . [a Supreme Court decision] must be objectively unreasonable, not merely wrong; even clear error will not suffice.” White v. Woodall, 572 U.S. 415, 419 (2014) (internal quotation marks omitted). The prisoner “must show th at the state court’s ruling on the claim

. . . was so lacking in justification that there was an error wellunderstood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter , 562 U.S. 86, 103 (2011). III . DISCUSSION Both the S tate and Curry

- Pennamon challenge the judgment of the district court. The State argues that the district court gave no deference to the decision of the state court that appellate counsel did not render ineffective assistance. Curry

- Pennamon argues that trial counsel was ineffective for failing to request jury USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 9 of 1710 Opinion of the Court 20

- 14106

instruction s on the place

- of

- business exception , prior threats , and the state stand

- your
- ground law

. Curry

- Pennamon must “[s]urmount [] . . . [a] high bar” to overcome the presumption that his trial counsel performed adequately

. See Richter , 562 U.S. at 10 5. Not only must Curry

- Pennamon prove that his trial counsel committed an error that was “so serious as to deprive [him] of a fair tria l,” Strickland , 466 U.S. at 687, he also must overcome the “ ‘ doubly deferential ’ [standard that applie s] when, as here, a state court has decided that counsel performed adequately.” Dunn v. Reeves , 141 S. Ct. 2405, 2410 (2021). “[I ] n more concrete terms, a federal court may grant relief only if every fairminded jurist would agree that every reasonable lawyer would have made a different decision.” Id. at 2411 (internal quotations marks omitted and alteration adopted)

. A. The District Court Erred by Rejecting the Decision of the State

Court that Curry

- Pennamon’s Claim of Ineffective Assistance of Appellate Counsel Failed “on the Merits.” Curry

- Pennamon argued at trial that he shot Holloway in self

- defense. Florida law as follows allowed the use of deadly force when justifiable : A person who is not engaged in an unlawful activity and who is attacked in any

. . . place where he

. . . ha s a right to be h a s no duty to retreat and ha s the right to stand his

. . . ground and meet force with force, including deadly force if he

. . . reasonably believe s it is necessary to do so to prevent death or great bodily USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 10 of 1720

- 14106 Opinion of the Court 11
harm to himself

. . . . Fla. Stat. § 776.013(3) (effective Oct. 1, 2005 , to June 19, 2014)

. The law forbade carrying a concealed f irearm without a permit, id. § 790.01, but it allowed a person without a permit to carry a concealed firearm at hi s place of business, id. § 790.25(3)(n)

. When selecting what issues to rais e on appeal, Curry

- Pennamon’s appellate counsel was bound by rules of issue preservation. In Florida, “ t rial counsel’s failure to object to . . . [ an alleged error]operates as a procedural bar that generally precludes appellate review of such an unpreserv ed error.” Jimenez v. State , 167 So. 3d 497, 499 (Fla. Dist. Ct. App. 2015)

. “ U npreserved errors cannot successfully be raised on appeal unless they amount to fundamental error.” Valentine v. State , 98 So. 3d 44, 57

– 58 (Fla. 2012). To be fundamental, an er ror must be “patent , ” such that it has a “qualitative effect” on the proceeding , and be “serious.” Thomas v. State , 763 So. 2d 316, 316 (Fla. 2000). Appellate counsel face d a d ifficult task in obtaining relief on

an unpreserved argument involving a jury i nstruction. “[F]or jury instructions to constitute fundamental error, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Garzon v. State , 980 So. 2d 1038, 1042 (Fla. 2008) (internal quotation marks omitted). “Where the challenged jury instruction involves an affirmative defense, as opposed to an elementof the crime, fundamental error only occurs where a jury instruction is so flawed as to deprive defendants claiming the defense of a USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 11 of 1712 Opinion of the Court 20

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fair trial.” Martinez v. S tate , 981 So. 2d 449, 455 (Fla. 2008) (internal quotation marks omitted ). T o determine whether the state court unreasonably applied clearly established federal law when it summarily rejected Curry

Pennamon’s claim of ineffective appellate counsel , “ o ur tas k is to determine what arguments or theories could have supported thestate court’s decision, and . . . [to] deny relief if it is possible fairminded jurists could find that decision was not contrary to, or involved an unreasonable application of” Strickla nd

. Pinkney v. Sec’y, Dep’t of Corrs. , 876 F.3d 1290, 1298 (11th Cir. 2017). As in Pinkney , we interpret th at d ecision “as having been based on the theory that while the [concealed weapon] instruction was error, it was not fundamental error and, as a resul t, the direct appeal courtwould not have decided that claim on the merits if appellate counsel had raised the claim.” Id. at 1299. The state court could have concluded that the faulty jury instruction did not create “ error so prejudicial as to vitiate the entire trial.” See Jimenez , 167 So. 3d at 499. The state court could have concluded that the jury w ould have returned the same verdict even if instructed that Curry

- Pennamon carried the firearm lawfully

. After all, Curry

- Pennamon pursued and shot Holloway as he ran away. Based on th at evidence , the state court could have concluded that the jury would have f oun d Curry

- Pennamon did not reasonably believe the use of deadly force was “necessary

. . . to prevent death or great bodily harm to himself.” See Fla. Stat. § 776.013(3). The district court erred by refusing to defer to the decision USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 12 of 1720

- 14106 Opinion of the Court 13
of the state court. The district court incorrectly rejected the decision of the state court as un reasonable based on its failure to provide “ an opinion

. . . explaining [ its] reasoning ” or to cite S trickland

. See Richter , 562 U.S. at 98. The district court also erroneously reviewed appellate counsel’s conduct de novo

. See Shinn v. Kayer , 141 S. Ct. 517, 523 (2020). We reverse the grant of the wr it t o Curry

Pennamon based on ineffective appellate counsel.
B. T he State Court R easonably Applied Strickland b y Denying Curry

- Pennamon’ s Claim that Trial Counsel Should Have Request ed a Jury Instruction on the Place

- of

- Business Exception. Curry

- Pennamon’ s claim that trial counsel was ineffective for failing to request an instruction on the place

- of

- business exception fails

. See Dunn , 141 S. Ct. at 2411

. The state court reasonably deter mined that i t would have been futile for trial counsel to request a place

- of

- business exception instruction after the trial court twice rejected arguments that the exception applied to Curry

- Pennamon. See Pinkney , 876 F.3d at 1297 (“ [A] n attorney will not be held to have performed deficiently for failing to perform a futile act

. . . . ” ). The state court reasonably applied Strickland

.

C. T he State Court Reasonably Decide d that Curry

- Pennamon Was Not Prejudiced by Trial Counsel’s Failure to Request a Jury USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 13 of 1714 Opinion of the Court 20

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Instruction on Prior Threats.
F airminded jurists could also agree that trial counsel ’ s failure to request a prior

- threats instruction did not prejudice Curry

- Pennamon. Trial counsel did not n eed to further highlight uncontested evidence th at Holloway threatened Curry

- Pennamon. Meders v. Warden, Ga

. Diagnostic Prison , 911 F.3d 1335, 1354 (11th Cir. 2019) (“ [I] t is not prejudicial for an attorney to fail to point out to the jury something that i s obvious from the evidence

. ”). And the trial court directed the jury to consider Holloway’s threats in determining whether Curry

- Pennamon’ s use of deadly force was justifiable. The trial court instructed the jury “[i] n deciding whether [Curry

- Pennamon] was justified in the use of deadly force . . . [to] judge him by the circumstances by which he was surrounded at the time the force was used

. ” The state court reasonably concluded that trial counsel’s failure to request a prior

- threats ins truction would not have changed the outcome of Curry

- Pennamon’s trial. See Richter , 562 U.S. at 105. D. Curry

-Pennamon Failed to Establish Cause to Excuse His Procedurally Defaulted Claim that Trial Counsel Should Have Requested a n In struction that His Use of Force was Justified

. Curry

- Pennamon never presented and procedurally defaulted his claim that his trial counsel should have requested a jury instruction that his use of deadly force was justifiable because he faced imminent harm even though he was eng aged in an unlawful activity , s ee Fla. Stat. § 776.012(1) (effective Oct. 1, 2005 , to June 19, 2014)

. See Coleman v. Thompson , 501 U.S. 722, 735 n.1 (1991)

. USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 14 of 1720

- 14106 Opinion of the Court 15
So Curry

- Pennamon could not litigate his claim in his federal habeas corpus proceeding unless he could establish cause and prejudice to excuse his default. Id. at 750. To establish cause, Curry

- Pennamon had to prove that his claim was “a substantial one . . . [in that] the claim has some merit.” Martin ez , 566 U.S. at 14. When Curry

- Pennamon went to trial , a person could be immun e from prosecution if his use of deadly force was permitted under sections 776.012 or 776.013 of the Florida Statutes. Fla. Stat. § 776.032(1). Under section 776.013, a defendan t could use deadly force to stand his ground if he was engaged in a lawful activity: A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to st and his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. Id. § 776.013(3). Under section 776.012, a defendant could use deadly force to prevent imminent injury regardless of the lawfulness of his activity : [A] person is justified in the use of deadly force and does not have a duty to retreat if . . . [he] reason ablybelieves that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felon

. USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 15 of 1716 Opinion of the Court 20

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Id. § 776.012 (1). Three months before Curry

- Pennamon’s trial, t he SecondDistrict Court of Appeals certified a question to the Florida Supreme Court asking it to decid e whether a defendant engaged in an unlawful activity could be immun e from prosecution under section 776.012(1)

. Little v. State , 111 So. 3d 214, 222

– 23 (Fla. Dis t. Ct. App. 2013). The court in Little held that a felon in possession of a firearm at the time of the shooting could not avoid prosecution under section 776.013 but could do so under section 776.012(1). Id. at 218

– 22. But the court acknowledged that its d ecision potentially conflicted with a decision of t he Fourth District Court of Appeals that a felon in possession of a firearm at the time of the shooting could not be immune from prosecution under section 776.013

. State v. Hill , 95 So. 3d 434, 434 (Fla. D ist. Ct. App. 2012)

. Although t he state supreme court never answered the question , effective June 20, 2014, amend ed section 776.012 provides that a person is justified in using deadly force only if he is not engaged in criminal activity , Fla. Stat. § 776.012(2). T h e u ncertainty as to section 776.012(2) at the time of Curry

- Pennamon’s trial establish ed that hi s claim of ineffective trial counsel was not substantial and did not provide cause to excuse his proce dural default

. See Martinez , 566 U.S. at 14. T rial counsel could not predict whether Curry

- Pennamon could justify his use of deadly force when , according to the trial court, he had been engaged in the unlawful activity of carrying a concealed weapon withou t a permit. See Rambaran v. Sec’y, Dep’t of Corr. , 821 F.3d USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 16 of 1720

- 14106 Opinion of the Court 17 1325, 1334 (11th Cir. 2016) (“ [W] e have held many times that reasonably effective representation cannot and does not include a requirement to make arguments based on predictions of how the law may develop

. ” ). So trial counsel was not ineffective in failing to request a jury instruction based on section 776.012(1)

. See Brewster v. Hetzel , 913 F.3d 1042, 1057 (11th Cir. 2019) (“ It is not ineffective assistance for counsel to fail to make an objec tion or motion that depends on the future development of the law. ”). IV. CONCLUSION We AFFIRM in part , REVERSE in part , and REMAND for the district court to reinstate Curry

- Pennamon’s conviction. USCA11 Case: 20-14106 Date Filed: 08/16/2022 Page: 17 of 17