[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12574

Non-Argument Calendar

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JEFREY ROSARIO, 

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, 

Respondent-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:21-cv-00226-MW-MAF

____________________

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Before JORDAN, BRANCH, and BLACK, Circuit Judges.

PER CURIAM:

Jefrey Rosario challenges the district court’s denial of his 

counseled 28 U.S.C. § 2254 petition. The district court granted a 

certificate of appealability (COA) on one issue: “whether Petitioner

was prejudiced by counsel’s deficient performance in failing to object to the state trial court’s erroneous ‘unlawful activity’ instruction.” Rosario asserts his trial counsel performed deficiently by failing to object to the state trial court’s instruction requiring him to 

retreat before using deadly force if he was engaged in unlawful activity and that counsel’s deficient performance prejudiced him because it negated his sole defense theory of self-defense. The State 

responds the instruction did not result in prejudice because the evidence at trial established Rosario was acting in retaliation, not defending himself, and the instruction was not the focus of the attorneys’ arguments. After review,1 we affirm.

I. BACKGROUND

Rosario is a Florida prisoner who is serving a 40-year sentence for two counts of attempted second-degree murder. At trial, 

Rosario’s defense attorneys argued Luis Torres-Gutierrez was 

robbed after Rosario drove him to deliver drugs and there would 

1 We review a district court’s denial of a § 2254 petition de novo. Bester v. Warden, 836 F.3d 1331, 1336 (11th Cir. 2016). The district court’s determination 

the state-court decision was reasonable is reviewed de novo. LeCroy v. Sec’y, 

Fla. Dep’t of Corr., 421 F.3d 1237, 1259 (11th Cir. 2005).

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not be a dispute that it was Torres-Gutierrez’s drug deal. Rosario 

thought someone would get hurt when Levar Morant punched 

Torres-Gutierrez and snatched marijuana from Torres-Gutierrez, 

so Rosario grabbed a gun from Torres-Gutierrez and started shooting at Morant and Steven Key. Counsel contended Rosario was 

justified in shooting. In instructing the jury on the justifiable use 

of deadly force, the trial court included language stating, “[i]f the 

defendant was not engaged in an unlawful activity and was attacked in any place where he had the right to be, he had no duty to 

retreat and had the right to stand his ground and meet force with 

force, including deadly force.” The jury convicted Rosario on two 

counts of attempted second-degree murder. 

At the time of Rosario’s offense conduct, Florida law provided:

[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 felony[.]

Fla. Stat. § 776.012(1) (effective Oct. 1, 2005, to June 19, 2014). 

However, in June 2014, Florida amended § 776.012 to provide that 

a person is justified in using deadly force and does not have a duty 

to retreat if, among other things, he is not engaged in criminal activity. See Fla. Stat. § 776.012(2) (effective June 20, 2014).

In a state postconviction motion under Florida Rule 3.850. 

Rosario first brought a claim that his trial counsel performed 

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ineffectively by failing to object to the jury instruction stating he 

could not stand his ground if he was engaged in unlawful activity, 

which negated his sole defense theory of self-defense. Rosario contended the “unlawful activity” instruction given did not apply to 

his conduct in 2011 because the amendment including the “unlawful activity” language became effective in 2014, so the state trial 

court committed fundamental error when it read a jury instruction 

including that language. He argued his sole defense was self-defense, but there was evidence he was engaged in a drug deal, so the 

“unlawful activity” instruction deprived him of his sole defense. 

The state trial court denied relief after conducting an evidentiary 

hearing. The state trial court determined any potential error to be 

harmless beyond a reasonable doubt based on the overwhelming 

evidence in the case. The Florida First District Court of Appeal 

then per curiam affirmed without opinion. 

Rosario filed a counseled 28 U.S.C. § 2254 petition. As relevant to this appeal, Rosario’s third ground alleged his trial counsel 

performed ineffectively by failing to object to the jury instruction 

stating he could not stand his ground if he was engaged in unlawful 

activity, which negated his sole defense theory of self-defense. In 

recommending the district court deny Rosario’s § 2254 petition, 

the magistrate judge concluded Rosario was not prejudiced by his 

trial attorneys’ failure to object to the jury instruction. The magistrate judge concluded the first prong of an ineffective assistance of 

counsel claim was satisfied, but the deficient performance did not 

result in prejudice because Rosario was not deprived of a self-defense claim. The magistrate judge noted the trial court provided 

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four other instructions related to self-defense and the evidence at 

trial suggested the shooting was retaliatory and not in self-defense

because Rosario used the gun after the snatching, from fifty feet 

away, and while the victims were running away. The magistrate 

judge concluded the state court did not unreasonably apply Strickland v. Washington, 466 U.S. 668 (1984), or make an unreasonable 

determination of the facts.

The district court accepted the magistrate judge’s report and 

recommendation and denied Rosario’s § 2254 petition, but granted 

a COA on “whether Petitioner was prejudiced by counsel’s deficient performance in failing to object to the state trial court’s erroneous ‘unlawful activity’ instruction.” 

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act (AEDPA) 

provides that, after a state court has adjudicated a claim on the merits, a federal court may grant habeas relief only if the state court’s 

decision was (1) contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or (2) based on an unreasonable 

determination of the facts in light of the evidence presented to the 

state court. 28 U.S.C. § 2254(d)(1)-(2). AEDPA imposes a “highly 

deferential standard for evaluating state-court rulings and demands 

that state-court decisions be given the benefit of the doubt.” Renico 

v. Lett, 559 U.S. 766, 773 (2010) (quotation marks and citation omitted). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could 

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disagree on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks omitted).

The Sixth Amendment gives criminal defendants the right 

to effective assistance of counsel. U.S. Const., amend. VI. To establish ineffective assistance of counsel, a petitioner must show 

that (1) his attorney’s performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland, 466 U.S. at 

687. Failure to establish either prong of the test is fatal and makes 

it unnecessary for us to consider the other. See id. at 697. Prejudice 

occurs when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Id. at 694. “A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id. A petitioner must establish “that counsel’s errors were so serious as to 

deprive the defendant of a fair trial, a trial whose result is reliable.” 

Id. at 687. A court must consider the totality of the evidence before 

the jury. Id. at 695.

The district court did not err in denying relief because Rosario has not established prejudice.2 Rosario asserts the state courts 

unreasonably applied Strickland when assessing prejudice, and although he cites several Florida cases, those cases are inapplicable 

2 We do not address Rosario’s arguments regarding his trial counsel’s deficient 

performance because the COA does not address this prong of the analysis and 

the district court found there was deficient performance. See Hodges v. Att’y 

Gen., State of Fla., 506 F.3d 1337, 1340-42 (11th Cir. 2007) (explaining in the 

context of an unsuccessful § 2254 petition, the scope of our review is limited 

to the issues specified in the COA). 

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when deciding whether the state court unreasonably applied 

clearly established federal law. 28 U.S.C. § 2254(d)(1). Applying the 

Strickland standard alongside § 2254(d) deference, it is not clear that 

every fairminded jurist would conclude that prejudice was established. See Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 

1351 (11th Cir. 2019) (explaining when applying § 2254(d) deference 

to the prejudice prong of the Strickland standard, the question is 

“whether every fairminded jurist would conclude that prejudice 

has been established”). 

Considering the totality of the evidence, every fairminded 

jurist would not conclude there is a reasonable probability that but 

for defense counsel’s error in failing to object to the “unlawful activity” jury instruction, the jury would have found Rosario was justified in using self-defense. See id.; Strickland, 466 U.S. at 694-95. 

There was evidence presented at trial that Rosario was present 

while Torres-Gutierrez was engaged in a drug deal and was thus 

engaged in unlawful activity, but the court granted a judgment of 

acquittal on Rosario’s possession with intent to sell charge. While 

there was evidence of a robbery between Torres-Gutierrez and 

Morant with Torres-Gutierrez telling Rosario, “they got me,” there 

was also evidence Rosario shot at Morant and Key while they were 

running away over 50 feet from him, suggesting he was not in fear 

of imminent death, great bodily harm, or being robbed. The lawyers’ closing arguments did not highlight the “unlawful activity” 

instruction. The defense relied heavily on self-defense, but defense 

counsel only mentioned the “unlawful activity” instruction to say 

the court took care of that count, so the jury did not need to worry 

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about that instruction. And although the State mentioned the drug 

deal, it did not argue that Rosario could not defend himself or was 

required to retreat because he was part of an unlawful activity, but 

argued there was not an imminent threat because the victims were 

running away. 

Every fairminded jurist would not necessarily conclude that 

prejudice was established given the other evidence suggesting Rosario was not in fear of imminent death, great bodily harm, or robbery. Meders, 911 F.3d at 1351. Therefore, fairminded jurists could 

disagree about the correctness of the state trial court’s decision that 

the jury instruction did not result in prejudice, and the conclusion 

was not an unreasonable application of clearly established federal 

law under Strickland. See Harrington, 562 U.S. at 101; 28 U.S.C. 

§ 2254(d)(1). Accordingly, we affirm. 

AFFIRMED.

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