Jose A. Torres, Sr. v. Secretary, Department of Corrections

J
       USCA11 Case: 20-11407   Date Filed: 02/03/2021    Page: 1 of 20



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 20-11407
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:16-cv-03194-CEH-JSS



JOSE A. TORRES, SR.,


                                                          Petitioner-Appellant,


                                 versus


SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,


                                                        Respondents-Appellees.

                       ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                           (February 3, 2021)
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Before BRANCH, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

       Jose Torres, a Florida prisoner proceeding pro se, appeals the district court’s

denial of his 28 U.S.C. § 2254 federal habeas petition. The district court issued a

certificate of appealability (“COA”) on the issue of whether Torres’s counsel was

ineffective for failing to object to a jury instruction concerning whether the alleged

victim was in the process of committing a burglary and a battery, which would

have rendered Torres’s use of deadly force was justified. Torres argues that his

counsel’s affirmative request for the erroneous instruction and failure to object to it

once it was given was prejudicial because the instruction shifted the burden of

proof regarding his use of force from the State to him and was confusing to the

jury.1 After careful review, we affirm.

                                     I.      Background




       1
         Torres also argues that the challenged jury instruction violated his due process rights
and that his conviction should be reversed on that basis. We will not address this issue as we
denied previously Torres’s request to expand the COA to include this claim. Murray v. United
States, 

145 F.3d 1249

, 1250–51 (11th Cir. 1998) (explaining that appellate review is limited to
the issues specified in the COA).

       Additionally, we grant Torres’s pending motion to amend his reply brief. We considered
the amended reply brief in resolving this appeal.

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      In 2009, Torres was charged in Florida with aggravated battery with a

deadly weapon in violation of Fla. Stat. § 784.045(1)(a)(2) for stabbing Ricky

Walton with a sword. At trial, Torres maintained that he acted in self-defense.

      Walton testified that he had known the Torres family for years, and, on

August 15, 2008, he was driving in the Torres’s neighborhood when he saw

Torres’s wife Marrie and a couple other people sitting outside Torres’s house.

Walton decided to stop and talk to them. According to Walton, Marrie asked him

if he could stay there for a bit because Torres was on his way home, was drunk,

and Marrie was afraid he was going to “hit her.” Approximately five minutes later,

Torres arrived home drunk and Marrie and Torres started arguing about whether

Torres was seeing other women, and Marrie went inside the house and locked the

door. Torres started beating on the doors and windows, but Marrie would not let

him in. Walton went inside and convinced Marrie to let Torres in so that he could

gather his belongings and leave. Torres came inside and he and Marrie started

arguing in the bedroom, at which point Walton told them they needed to separate.

Torres gathered some of his belongings and put them in his truck. He then came

back inside and stated to Walton “I got you mother f’r” and returned to the

bedroom. He emerged from the bedroom with some papers and what Walton

thought was a cane, but it turned out to be a sword, and Torres stabbed Walton in

the face. Walton testified that at no point had anyone asked him to leave the

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house. Walton ran from the house, and as he was running, he saw a police car and

flagged it down. Walton had a laceration on his jaw and underwent treatment for

several days at a medical center.

      Torres’s daughter Rebecca, who was seventeen and at her parent’s home at

the time of the incident, testified that she and her family knew Walton. She

confirmed that, on the day in question, both of her parents had been drinking and

they started arguing. She denied seeing any altercation between Walton and

Torres, but she admitted that she gave the police a written statement to the

contrary. In the written statement, she asserted that Torres was putting his

belongings in his car and then he returned to the house to get his sword, and then

said to Walton, “Here mother f’r,” and stabbed him. Rebecca testified that her

statement was based on what Walton’s friends had told her.

      A law enforcement officer who responded to the scene testified that Rebecca

was outside of the house when he arrived, and she told him that Torres had stabbed

Walton. He also testified that he found a sheath for a sword in the front yard.2

      Marrie testified that, on the day in question, she had been drinking and was

“drunk, drunk, drunk.” Specifically, after she arrived home from work, a couple of

friends (not Walton) came by and told her that they saw Torres with another

woman. After her friends left, she went inside with hers and Torres’s children.


      2
          Torres left in his truck before the police arrived. No sword was ever found.
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She explained that she never saw Walton outside and did not invite Walton into her

house—rather, she just walked out of a room and he was there inside the home.

Marrie knew who Walton was, but she did not “know him personally,” and denied

that he was a family friend. She acknowledged that she and Torres started arguing

when he got home, but she denied ever asking Walton for help, and stated that she

observed Walton push Torres. Marrie testified that she was too drunk to write a

statement when police arrived, and that someone, probably Rebecca, did it for her,

but she signed it. Her statement indicated that she saw Torres stab Walton with a

sword, but she maintained at the trial that was not what happened. She explained

that she signed the statement because she was mad at Torres, and she regretted it.

      Torance Calhoun, who was a friend of Torres’s and had been living with the

Torres family for several months at the time of the incident, testified that Walton

entered the house when Torres was gathering his belongings to leave following a

fight with Marrie. Calhoun did not believe that anyone had invited Walton into the

house. Calhoun testified that he observed Walton and Torres argue, Walton then

shoved Torres, and Torres punched Walton “hard” in the face. Calhoun did not see

Torres with a sword or any other weapon. Calhoun explained that he did not stay

to make a statement to the police because Calhoun thought there was a warrant out

for his arrest. On cross-examination, it was revealed that Calhoun had multiple

felony convictions.

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      Torres testified that when he got home Marrie was on the porch with two of

their friends (not Walton), and she started yelling at Torres, accusing him of

picking up other women. Torres stated he tried to ignore her because he was tired,

and he went inside the house and into the bedroom. All of a sudden Walton

opened the bedroom door. Torres explained that knew Walton from seeing him in

the neighborhood, but he denied that Walton was a friend. Walton told Torres to

“get out.” Torres testified that he did not know why Walton was in his house or

how he had gotten into the house and that he told Walton to leave. Torres

explained that he exited the bedroom to look for his cigarettes and Walton was

“running his mouth” and pushed Torres. Torres turned around and punched

Walton. Torres explained that he was intimidated by Walton because Walton was

bigger than him and younger. Torres stated he did not own a sword, and he denied

ever seeing the sheath that was found in the yard. He maintained that he was

wearing a large ring on the hand that he used to punch Walton.

      After the relevant testimony, Torres’s counsel requested that the jury

instruction on burglary with battery be given to the jury. Counsel explained as

follows:

      given that the justifiable use of deadly force includes the forcible
      entry to commit the felony. So the alleged felony in this case would
      be the alleged victim, Mr. Walton, having gone into the house
      uninvited and committing a burglary, so we just need to have the
      instructions for burglary with battery.

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The State agreed to the instruction. In closing arguments, the State explained that

it needed to prove two elements beyond a reasonable doubt: (1) that Torres

committed a battery against Walton, meaning he “intentionally touched or struck”

Walton against his will and/or intentionally caused Walton bodily harm; and (2) in

committing the battery Torres used a deadly weapon. The State noted that the jury

would also be instructed on self-defense, and that the justifiable use of deadly force

is permissible only when a person “reasonably believes that such force is necessary

to prevent, one, imminent death or great bodily harm to himself or another; or two,

the imminent commission of a forcible felony against himself or another.” The

State explained that

       the only forcible felony that fits there that Mr. Torres could have even
       contemplated was going to be committed against himself or another is
       called burglary with a battery. Burglary is when you enter a structure
       with the intent to commit a crime therein, that’s not even forcible, but
       it is a felony. What makes it forcible is that the crime you commit
       therein is then a battery.

Defense counsel, in relevant part, argued that the State had the burden of proving

that

       even if Mr. Torres caused that injury [to Walton], he did not do it in
       self-defense. . . . They have to prove it didn’t happen in self-defense.
       ...
       When [Torres] struck [Walton] with his fist, was he acting in
       self-defense. And the answer to that is yes. Mr. Walton was in his
       house, uninvited. Mr. Walton was giving him a hard time. Mr.
       Walton had interfered and had insinuated himself, interfered with,
       gotten himself involved with a very intimate, very difficult family
       situation and exploited it, and then got into Mr. Torres’ face and he
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      was not, again, in that house invited and Mr. Torres responded with a
      fist, causing some bleeding, and that’s it.

      Following closing arguments, the trial court instructed the jury that the State

was required to prove the elements of aggravated battery beyond a reasonable

doubt. It also instructed the jury that the justifiable use of deadly force was a

defense to the charged offense and a person would be justified in using deadly

force where he “reasonably believes that the force is necessary to prevent

imminent death or great bodily harm to himself while resisting[:] (1) another’s

attempt to murder him, or; (2) any attempt to commit burglary with battery upon

him or; (3) any attempt to commit burglary with battery upon or in any dwelling by

him.” Additionally, the court instructed the jury that deadly force would be

justified if a person “reasonably believes” that it is necessary to prevent “imminent

death or great bodily harm to himself or another.” The court noted that “[t]he

danger facing [Torres] need not have been actual . . . to justify the use of deadly

force,” but instead, “the appearance of danger must have been so real that a

reasonably cautious and prudent person under the same circumstances would have

believed that the danger could be avoided only through the use of that force.” It

further instructed the jury that:

      [i]f in your consideration of the issue of self-defense you have a
      reasonable doubt on the question of whether [Torres] was justified in
      the use of deadly force, you should find [him] not guilty. However, if
      from the evidence you are convinced that [Torres] was not justified in

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      the use of deadly force, you should find him guilty if all the elements
      of the charge have been proved.

      13.1, burglary, Florida Statutes 810.02. To prove the crime of
      burglary the following three elements must be proven beyond a
      reasonable doubt:
      (1) Ricky Walton entered a structure owned by or in the possession of
      [Torres].

      (2) At the time of entering the structure Ricky Walton had the intent
      to commit an offense in that structure.

      (3) Ricky Walton was not invited to enter the structure. . . .

      If you find Ricky Walton committed a burglary, you must also
      determine if it has been proven beyond a reasonable doubt whether in
      the course of committing the burglary Ricky Walton battered any
      person. A battery is an actual and intentional touching or striking of
      another person against that person’s will or the intentional causing of
      bodily harm to another person.
      Next, the court instructed the jury that the justifiable use of non-deadly force

was a defense to aggravated battery. Finally, the court instructed the jury that it

was required to presume that Torres was innocent unless that presumption had

been “overcome by the evidence to the exclusion of and beyond a reasonable

doubt.” And that Torres was “not required to present evidence or prove anything.”

Defense counsel did not raise any objection to the jury instructions.

      After approximately an hour and twenty minutes of deliberation, the jury

found Torres guilty as charged. Torres was sentenced to 15 years’ imprisonment.

      On direct appeal, Torres argued, in relevant part, that the trial court

committed fundamental reversible error when it instructed the jury that he had to

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prove beyond a reasonable doubt that Walton was committing both a burglary and

a battery as this statement improperly shifted the burden of proof to Torres and

indicated that unless this burden was met Torres’s use of deadly force was not

justified. Alternatively, he argued that his trial counsel was ineffective on the face

of the record for agreeing to the contested instruction. Florida’s Second District

Court of Appeal (“DCA”) summarily affirmed without written opinion.

Thereafter, the Second DCA denied Torres’s petition for rehearing and request for

a written opinion.

       Torres subsequently filed a motion for postconviction relief pursuant to

Florida Rule of Criminal Procedure 3.850. 3 He asserted, in relevant part, that his

trial counsel was ineffective for agreeing to the jury instruction which provided

that he had to prove beyond a reasonable doubt that Walton was committing both a

burglary and a battery. Citing numerous state court cases, Torres maintained that

the instruction prejudiced his trial because it shifted the burden of proof to him and

negated his claim of self-defense or defense of his dwelling.

       In response, the State noted that Torres had challenged the jury instruction

on direct appeal as fundamental reversible error, and the Second DCA had rejected




       3
         Torres filed numerous state postconviction filings between the conclusion of his direct
appeal in May 2011 and the filing of his federal habeas petition in 2016. This opinion discusses
only the state postconviction filings relevant to the issue upon which the district court granted a
COA.
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this argument, which demonstrated that Torres did not suffer any prejudice from

the erroneous instruction. The State also noted that the burden of proof was

properly explained during closing arguments. And regardless, the justifiable use of

deadly force instruction was not implicated by Torres’s theory of the case, which

was that he did not cause Walton’s injury, he did not use a sword to stab Walton,

and he punched Walton in self-defense.

      The trial court denied Torres’s Rule 3.850 motion, explaining that the

justifiable use of deadly force instruction, which was independent of the burglary

and battery instruction, “ma[de] it clear that the justifiable use of deadly force

[was] based upon [Torres’s] reasonable belief.” The trial court also affirmatively

agreed with the State’s proffered reasons that Torres could not establish he was

prejudiced by the instruction. Torres appealed, and the Second DCA affirmed

without written opinion. The Second DCA subsequently denied Torres’s motion

for rehearing and request for a written opinion.

      Thereafter, Torres filed the underlying pro se § 2254 habeas petition. He

argued, in relevant part, that his trial counsel was ineffective for agreeing to, and

otherwise failing to object to, the jury instructions concerning burglary and battery,

which shifted the burden of proof to Torres. Specifically, Torres maintained that

the instructions provided that he had to prove beyond a reasonable doubt that

Walton was committing a burglary and a battery, which implied that unless Torres

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proved this fact, his use of deadly force in self-defense or in defense of his home

was not justified. The State responded that the state court’s denial of this claim

was not contrary to, or an unreasonable application of, Strickland v. Washington,

466 U.S. 668

(1984), because as the state court concluded, Torres failed to

demonstrate prejudice—i.e., a reasonable probability that the outcome of the trial

would have been different had counsel objected to the instruction.

      In reply, Torres reiterated that his counsel had improperly requested the

instruction on burglary with battery and asserted that under Florida law he was not

required to prove that Walton committed either offense before he would be

justified in using deadly force. He maintained that his counsel’s performance was

prejudicial because it negated his defense, precluded a fundamentally fair trial, and

confused or mislead the jury.

      The district court denied Torres’s ineffective-assistance claim, concluding

that the state court’s determination that Torres failed to establish prejudice was not

objectively unreasonable. The district court determined that the record, when

considered in its entirety, demonstrated that the State retained the burden of proof

throughout the trial. It reasoned that, although the jury was instructed that it was

required to find that Walton committed burglary with battery beyond a reasonable

doubt, it was never instructed that Torres had the burden to prove anything or that

it could find that Torres acted in self-defense only if it was proven beyond a

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reasonable doubt that Walton was committing a burglary or a battery against him at

the time Torres used deadly force. Further, the district court concluded that due to

the substantial evidence against Torres at trial, he could not show that there was a

reasonable probability of a different outcome at trial absent the alleged error.

Nevertheless, the district court granted Torres a COA on this ineffective-

assistance-of-counsel claim. This appeal followed. Torres moved to expand the

COA in this Court to include an argument that the jury instruction violated his due

process rights, but his motion was denied. Thus, the only issue before us is the

ineffective-assistance-of-counsel claim.

                                       II.      Discussion

       Torres argues on appeal that the state court erred in denying his

ineffective-assistance claim because he suffered prejudice as a result of the battery

and burglary instruction. He argues that the instruction improperly shifted the

burden of proof to him and undermined confidence in the outcome of the trial,

given that the instruction was confusing and negated his defense. 4 He maintains


       4
          In his pro se brief, Torres also asserts that he was prejudiced because burden-shifting is
a violation of his due process rights. However, whether or not any impermissible burden shifting
may have violated his due process rights is not relevant to the Strickland prejudice inquiry,
which, as discussed further in this opinion examines whether there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” 

Strickland, 466 U.S. at 694

. Thus, it is not enough for Torres to allege or even show
a due process violation. Rather, to succeed on his ineffective-assistance-of-counsel claim, he
must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”

Id. 13

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that the state court’s decision denying this ineffective-assistance claim was

contrary to, and an unreasonable application of, federal law as set forth in

Strickland, Sullivan v. Louisiana, 

508 U.S. 275

(1993), In re Winship, 

397 U.S. 358

(1970), and Francis v. Franklin, 

471 U.S. 307

(1985).5

       We review the district court’s denial of a § 2254 habeas petition de novo.

Morrow v. Warden, Ga. Diagnostic Prison, 

886 F.3d 1138

, 1146 (11th Cir. 2018).

Yet the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) also

governs this appeal, which establishes a “highly deferential standard for evaluating

state-court rulings, [and] demands that state-court decisions be given the benefit of

the doubt.” Cullen v. Pinholster, 

563 U.S. 170

, 181 (2011) (quoting Woodford v.




       5
          Additionally, Torres cites a number of Florida cases which he alleges demonstrate that
jury instructions, like those given in his case, constitute fundamental, reversible error under
Florida law. Those cases clearly relate to Torres’s substantive claim that the instructions in
question violated his due process rights, which is not the issue before us. To the extent Torres
relies on those cases to establish that he suffered prejudice from his counsel’s failure to object to
the instructions, his reliance is misplaced because at best those cases establish that perhaps the
Second DCA got it wrong when it denied his fundamental error claim on direct appeal. The
cases do not establish that, but for his counsel’s error, there is a reasonable probability that the
outcome of his trial would have been different. See Purvis v. Crosby, 

451 F.3d 734

, 739 (11th
Cir. 2006) (“The Supreme Court in Strickland told us that when the claimed error of counsel
occurred at the guilt stage of a trial (instead of on appeal) we are to gauge prejudice against the
outcome of the trial: whether there is a reasonable probability of a different result at trial, not on
appeal.”). To the extent Torres relies on the cited Florida cases to demonstrate that the denial of
his ineffective-assistance claim conflicted with state law, his reliance is also misplaced. As
discussed further in this opinion, in order to be granted federal habeas relief, Torres must show
that the state court’s decision denying his claim on the merits (1) “was contrary to, or involved
an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme
Court,” or (2) “was based on an unreasonable determination of the facts in light of the evidence
presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d)(1), (2) (emphasis added).

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Visciotti, 

537 U.S. 19

, 24 (2002) (per curiam)). Thus, under AEDPA, our review

of a final state habeas decision is greatly circumscribed, and where a state court has

adjudicated a claim on the merits,6 a federal court may grant habeas relief only if

the decision of the state court:

       (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)(1)–(2).

       “[C]learly established law” under § 2254(d) refers to the holdings of the

Supreme Court at the time of the relevant state court decision. Yarborough v.

Alvarado, 

541 U.S. 652

, 660–61 (2004). “A state court acts contrary to clearly

established federal law if it confronts a set of facts that are materially

indistinguishable from a decision of the Supreme Court of the United States and

nevertheless arrives at a result different from its precedent.” Reese v. Sec’y, Fla.

Dep’t of Corr., 

675 F.3d 1277

, 1286 (11th Cir. 2012) (quotation omitted). A state



       6
          Because the Second DCA affirmed the trial court’s decision denying Torres’s
ineffective-assistance claim without explaining its reasoning, we “look through” to the last
reasoned decision and assume that the Second DCA adopted that reasoning. See Wilson v.
Sellers, 

138 S. Ct. 1188

, 1192 (2018) (holding that when the final state court to adjudicate the
merits of a petitioner’s claim simply affirms or denies a lower court’s decision without
explaining its reasoning, the federal habeas court should “look through” to the last reasoned state
court decision and assume that the unexplained decision adopted that reasoning).
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court’s decision is based on an unreasonable application of clearly established

federal law if it “identifies the correct governing legal rule but unreasonably

applies it to the facts of the particular state prisoner’s case, or when it unreasonably

extends, or unreasonably declines to extend, a legal principle from Supreme Court

case law to a new context.”

Id. (quotation omitted). To

be clear, the state court’s

application of federal law “must be ‘objectively unreasonable.’ This distinction

creates ‘a substantially higher threshold’ for obtaining relief than de novo review.”

Renico v. Lett, 

559 U.S. 766

, 773 (2010) (quotation omitted); White v. Woodall,

572 U.S. 415

, 419 (2014) (explaining that, for purposes of § 2254(d)(1), the State’s

court’s application of clearly established federal law must be “‘objectively

unreasonable,’ not merely wrong; even ‘clear error’ will not suffice” (quoting

Lockyer v. Andrade, 

538 U.S. 63

, 75 (2003))). “A state court’s application of

federal law is not unreasonable so long as fairminded jurists could disagree on the

correctness of the state court’s decision.” Kilgore v. Sec’y, Fla. Dep’t of Corr.,

805 F.3d 1301

, 1312 (11th Cir. 2015) (quotation omitted).

      To make a successful claim of ineffective assistance of counsel, a defendant

must show both that (1) his counsel’s performance was deficient; and (2) the

deficient performance prejudiced his defense. 

Strickland, 466 U.S. at 687

. Thus,

where the ineffective-assistance claim is based on trial counsel’s failure to object

to a jury instruction, the defendant must show that “the instruction was improper,

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that a reasonably competent attorney would have objected to the instruction, and

the failure to object was prejudicial.” Daughtery v. Dugger, 

839 F.2d 1426

, 1428

(11th Cir. 1988). Prejudice occurs when there is a “reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” 

Strickland, 466 U.S. at 694

. Failure to establish either the deficient

performance prong or the prejudice prong is fatal and makes it unnecessary to

consider the other.

Id. at 697.

Further, “[t]he standards created by Strickland and

§ 2254(d) are both highly deferential, and when the two apply in tandem, review is

doubly so.” Harrington v. Richter, 

562 U.S. 86

, 105 (2011) (quotations omitted).

      Here, the state court concluded that Torres could not establish prejudice, and

Torres has failed to establish that the state court’s denial of his claim was contrary

to, or an unreasonable application of, Strickland. As the state court determined,

despite the “beyond a reasonable doubt” burglary and battery instruction, the

record confirms that the jury was properly instructed that: (1) the State bore the

ultimate burden of proof; (2) the justifiable use of deadly force was based on

whether Torres reasonably believed that force was necessary to prevent imminent

death or great bodily harm while resisting an attempt to commit burglary with

battery upon him; (3) Torres was entitled to a presumption of innocence, and

(4) Torres did not have to prove anything or present any evidence. Additionally,

during closing arguments, defense counsel explained to the jury that the State bore

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the burden of disproving Torres’s self-defense theory. Further, contrary to

Torres’s assertion, there is no indication that the jury was confused by the

instruction. The jury deliberated for approximately an hour and twenty minutes

before returning the verdict of guilt, and it asked no questions during that time.

Moreover, as the district court noted, the evidence against Torres was substantial,

and, therefore, he cannot show that there is a reasonable probability that, but for

the beyond a reasonable doubt battery and burglary instruction, the outcome of the

proceeding would have been different. Thus, when the jury instructions and the

record are considered in the entirety, the state court’s determination that, despite

the erroneous instruction, the State retained the burden of proof and Torres failed

to establish prejudice is not an objectively unreasonable application of Strickland

or its progeny. See 

Kilgore, 805 F.3d at 1312

(“A state court’s application of

federal law is not unreasonable so long as fairminded jurists could disagree on the

correctness of the state court’s decision.” (quotation omitted)).

      Similarly, Torres’s reliance on the Supreme Court’s decisions in In re

Winship, Sullivan, and Francis is misplaced. Each of those cases is factually and

legally distinguishable. Specifically, in Winship, the Supreme Court held that, in

the scheme of criminal procedure, the beyond a reasonable doubt standard was an

essential component of constitutional due process as it “protects the accused

against conviction except upon proof beyond a reasonable doubt of every fact

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necessary to constitute the crime with which he is 

charged.” 397 U.S. at 364

.

Therefore, the Supreme Court held that the beyond a reasonable doubt standard

also applied to juvenile delinquency proceedings in which juveniles were charged

with criminal violations.

Id. at 368.

In Sullivan, a Louisiana trial court gave a jury

instruction in a murder trial that included an unconstitutional definition of

“reasonable 

doubt.” 508 U.S. at 276

–77. The defendant was convicted, and the

Louisiana Supreme Court affirmed the conviction on appeal, concluding the

instruction was harmless error.

Id. at 277.

The Supreme Court reversed, holding

that the erroneous instruction was a structural error that deprived the defendant of

his Sixth Amendment right to a jury trial because it prevented the jury from

producing a constitutional verdict of guilt beyond a reasonable doubt.

Id. at 277– 82.

Lastly, in Francis, the Supreme Court held that where there are contradictory

jury instructions as to intent and one of those instructions creates an

unconstitutional understanding as to the allocation of the burden of persuasion, the

verdict must be set aside “unless other language in the charge explains the infirm

language sufficiently to eliminate” the possibility that the jury “understood the

instruction in an unconstitutional 

manner.” 471 U.S. at 323

n.8 (emphasis in

original). At best, these cases relate to Torres’s due process argument, but that

argument is not before us. Rather, the only issue before this Court is whether

Torres’s counsel was ineffective for failing to object to the battery and burglary

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         USCA11 Case: 20-11407       Date Filed: 02/03/2021    Page: 20 of 20



jury instruction. In order to prevail on that issue, Torres has to demonstrate that

there is a reasonable probability that, but for the erroneous instruction, the outcome

of the trial would have been different. As explained previously, the state court

concluded that, based on the record as a whole, he failed to establish prejudice, and

Torres has not shown that the state court’s decision was contrary to, or an

unreasonable application of, federal law. Accordingly, the district court did not err

in denying Torres’s claim, and we affirm.

      AFFIRMED.




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