[DO NOT PUBLISH]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.

____________________

Appeals from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:18-cv-01528-HLA-PDB

____________________

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2 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 granted 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 

murder on the ground that his appellate counsel was ineffective for 

belatedly arguing on rehearing that a jury instruction was fundamental error. But the district court rejected Curry-Pennamon’s 

claims that his trial counsel was ineffective. 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 his conviction.

I. BACKGROUND

We divide the background into three parts. First, we describe Curry-Pennamon’s trial and direct appeal. Second, we describe Curry-Pennamon’s unsuccessful state postconviction challenges to trial counsel, see Fla. R. Crim. P. 3.850, and to appellate 

counsel, see id. 9.141(d). Third, we describe Curry-Pennamon’s 

federal habeas corpus proceeding.

A. Curry-Pennamon’s Trial and Direct Appeal

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In July 2013, a Florida court tried Curry-Pennamon on 

charges of attempted first-degree murder and of carrying a concealed weapon. Victim Jacquan Holloway and his coworkers at 

Walmart testified that Holloway became angry when his girlfriend

and Curry-Pennamon, who were also Walmart employees, flirted

on the job. Holloway testified that he argued with Curry-Pennamon inside Walmart and later in its parking lot, where Holloway 

threatened to “whip [Curry-Pennamon’s] a**” and punched CurryPennamon, who fell to the ground.

Curry-Pennamon testified that he armed himself with a gun 

he kept in his glove compartment after seeing Holloway walk into

the parking lot. An outdoor surveillance video camera recorded

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 testified 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 harmed him.

After the state rested its case, and again at the end of all the 

evidence, defense counsel moved, without success, for a judgment 

of acquittal on both charges. Counsel argued that, as an employee 

at his place of business, Curry-Pennamon was not required to have 

a permit to carry a concealed weapon. See Fla. Stat. § 790.25(3)(n). 

The trial court ruled that Curry-Pennamon did not qualify for the 

exception because he wielded his gun outside of and not in defense 

of Walmart.

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The trial court instructed jurors to consider all the circumstances in determining whether Curry-Pennamon’s use of deadly 

force was justifiable. The trial 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 appearances, [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 with 

force, 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 murder, as a lesser-included offense of attempted firstdegree murder, and of carrying a concealed weapon. The trial 

court sentenced Curry-Pennamon to 25 years of imprisonment for 

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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 reversed. Curry-Pennamon 

v. State, 159 So. 3d 158 (Fla. Dist. Ct. App. 2015). The First District 

Court of Appeals ruled 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 

summarily rejected Curry-Pennamon’s two challenges to his attempted murder conviction. Id. at 159. Curry-Pennamon argued 

that the trial court gave 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 selfdefense was a defense to attempted second-degree murder.

Appellate counsel petitioned 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 carried 

the gun lawfully. The State responded that Curry-Pennamon could 

not raise an unpreserved issue on rehearing. The State also argued

that the allegedly improper jury instructions did not amount to 

fundamental error because Curry-Pennamon could not have reasonably believed deadly force was necessary when he shot the victim as he ran away. The appellate court summarily denied the

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petition. Curry-Pennamon v. State, No. 1D13-4327 (Fla. Dist. Ct. 

App. Mar. 25, 2015).

B. Curry-Pennamon’s Unsuccessful State Postconviction Filings

Curry-Pennamon moved for postconviction relief and argued that trial counsel was ineffective for failing to request two jury 

instructions. See Fla. R. Crim. P. 3.850. First, Curry-Pennamon argued that counsel should have requested a jury instruction on the 

place-of-business exception and objected to the instruction 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 State opposed the motion.

The state postconviction court denied Curry-Pennamon’s 

motion. The court ruled that counsel was not required to request 

an instruction on an exception that the trial court twice ruled did 

not apply to the facts of the case. The court also ruled that counsel’s 

failure to request a prior-threats instruction did not prejudice 

Curry-Pennamon because the jury was instructed to consider all 

circumstances 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-Pennamon

argued that appellate counsel failed timely to challenge the faulty 

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jury instruction on carrying a concealed firearm. The appellate 

court summarily denied 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 petitioned for a writ of habeas corpus on 

four grounds. 28 U.S.C. § 2254. First, Curry-Pennamon reasserted

that trial counsel should have requested jury instructions on the 

place-of-business exception and on prior threats. Next, Curry-Pennamon argued, for the first time, that his trial counsel should have

requested an instruction that he could stand his ground and use 

deadly force as “necessary to prevent imminent death or great bodily harm,” see Fla. Stat. § 776.012(1), regardless of whether he was

engaged in an unlawful activity. And Curry-Pennamon argued it 

did not matter the claim was procedurally defaulted because the 

failure of postconviction counsel “to raise the[] 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 reasserted that appellate counsel earlier should have challenged the 

faulty instruction on carrying a concealed weapon.

The State opposed the petition. First, the State argued that 

trial counsel did not have to raise the place-of-business exception

issue a third time. Second, the State argued that Curry-Pennamon 

lacked cause to excuse his procedural default because his argument 

for trial counsel to request an instruction on section 776.012 was 

not substantial. See id. Alternatively, the State argued that trial 

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counsel’s inaction was harmless because Curry-Pennamon “was 

still accorded the protections of the Stand Your Ground law.”

Third, the State argued that appellate counsel exercised reasonable 

professional judgment by arguing that the jury instructions were 

confusing, internally conflicting, 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 reasoned that appellate counsel was deficient in waiting until rehearing 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. 

And the district court reasoned that appellate counsel’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 unreasonably applying Strickland.

Both the State and Curry-Pennamon appealed. We granted 

Curry-Pennamon a certificate of appealability 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 

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writ of habeas corpus. Reed v. Sec’y, Fla. Dep’t of Corr., 767 F.3d 

1252, 1260 (11th Cir. 2014). The Antiterrorism and Effective Death 

Penalty Act “imposes a highly deferential standard for evaluating 

state-court rulings.” Id. at 1261 (quoting Renico v. Lett, 559 U.S. 

766, 773 (2010)). A state prisoner is entitled to a writ of habeas 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). That is, the state court must have “identifie[d]

the correct governing legal principle from 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 application 

of . . . [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 that the state court’s ruling on the 

claim . . . was so lacking in justification that there was an error well 

understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 

U.S. 86, 103 (2011).

III. DISCUSSION

Both the State 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 

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instructions 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 105. Not only must Curry-Pennamon prove that his trial counsel committed an error that was “so 

serious as to deprive [him] of a fair trial,” Strickland, 466 U.S. at

687, he also must overcome the “‘doubly deferential’ [standard that 

applies] 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 . . . has

a right to be has no duty to retreat and has the right

to stand his . . . ground and meet force with force, 

including deadly force if he . . . reasonably believes it

is necessary to do so to prevent death or great bodily 

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harm to himself . . . .

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

law forbade carrying a concealed firearm without a permit, id.

§ 790.01, but it allowed a person without a permit to carry a concealed firearm at his place of business, id. § 790.25(3)(n).

When selecting what issues to raise on appeal, Curry-Pennamon’s appellate counsel was bound by rules of issue preservation.

In Florida, “trial counsel’s failure to object to . . . [an alleged error] 

operates as a procedural bar that generally precludes appellate review of such an unpreserved error.” Jimenez v. State, 167 So. 3d 

497, 499 (Fla. Dist. Ct. App. 2015). “Unpreserved 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 error 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 faced a difficult task in obtaining relief on 

an unpreserved argument involving a jury instruction.“[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 element 

of the crime, fundamental error only occurs where a jury instruction is so flawed as to deprive defendants claiming the defense of a 

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fair trial.” Martinez v. State, 981 So. 2d 449, 455 (Fla. 2008) (internal 

quotation marks omitted).

To determine whether the state court unreasonably applied

clearly established federal law when it summarily rejected CurryPennamon’s claim of ineffective appellate counsel, “our task is to 

determine what arguments or theories could have supported the 

state 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” Strickland. Pinkney v. 

Sec’y, Dep’t of Corrs., 876 F.3d 1290, 1298 (11th Cir. 2017). As in 

Pinkney, we interpret that decision “as having been based on the 

theory that while the [concealed weapon] instruction was error, it 

was not fundamental error and, as a result, the direct appeal court 

would 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 would 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 that evidence, the state court could have concluded 

that the jury would have found 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 

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of the state court. The district court incorrectly rejected the decision of the state court as unreasonable based on its failure to provide “an opinion . . . explaining [its] reasoning” or to cite Strickland. 

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 writ to CurryPennamon based on ineffective appellate counsel.

B. The State Court Reasonably Applied Strickland by Denying 

Curry-Pennamon’s Claim that Trial Counsel Should Have Requested 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 

determined that it 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. The State Court Reasonably Decided that Curry-Pennamon

Was Not Prejudiced by Trial Counsel’s Failure to Request a Jury 

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Instruction on Prior Threats.

Fairminded jurists could also agree that trial counsel’s failure 

to request a prior-threats instruction did not prejudice Curry-Pennamon. Trial counsel did not need to further highlight uncontested 

evidence that 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 is 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 instruction 

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 an Instruction 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 engaged in an unlawful 

activity, see 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). 

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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.” Martinez, 566 U.S. at 14.

When Curry-Pennamon went to trial, a person could be immune 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 defendant 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 stand 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] reasonably 

believes 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.

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Id. § 776.012(1). 

Three months before Curry-Pennamon’s trial, the Second 

District Court of Appeals certified a question to the Florida Supreme Court asking it to decide whether a defendant engaged in an 

unlawful activity could be immune from prosecution under section 

776.012(1). Little v. State, 111 So. 3d 214, 222–23 (Fla. Dist. 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 decision potentially conflicted with a decision of the 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. Dist. Ct. App. 2012). Although the state 

supreme court never answered the question, effective June 20, 

2014, amended 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).

The uncertainty as to section 776.012(2) at the time of 

Curry-Pennamon’s trial established that his claim of ineffective trial 

counsel was not substantial and did not provide cause to excuse his 

procedural default. See Martinez, 566 U.S. at 14. Trial 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 

without a permit. See Rambaran v. Sec’y, Dep’t of Corr., 821 F.3d 

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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 objection 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.

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