Case: 11-13446       Date Filed: 11/21/2013       Page: 1 of 8


                                                                       [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                                       _____________

                                        No. 11-13446
                                       _____________


                       D. C. Docket No. 6:09-cv-01061-MSS-GJK

HERBERT PRICE, JR.,

                                                                   Petitioner-Appellant,

                                             versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                                   Defendant-Appellee.

                                      ______________

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

                                    (November 21, 2013)

Before JORDAN and ANDERSON, Circuit Judges, and ALBRITTON, ∗ District
Judge.

JORDAN, Circuit Judge:

∗
 Honorable William H. Albritton III, United States District Judge for the Middle District of
Alabama, sitting by designation.
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       In 2003, a Florida jury convicted Herbert Price Jr. of sexual battery on a

physically incapacitated person in violation of § 794.011(4)(f) of the Florida

Statutes. The trial court sentenced Mr. Price to ten years in prison followed by

fifteen years of probation. After exhausting direct appeals and state collateral

attacks, Mr. Price sought federal habeas relief in the United States District Court

for the Middle District of Florida, alleging that his trial counsel rendered

ineffective assistance by failing to object to the prosecution’s use of a peremptory

strike during jury selection.

       The district court denied habeas relief, ruling that Mr. Price could not

establish prejudice under Eleventh Circuit precedent. See Price v. Sec’y., Dept. of

Corr., No. 6:09–cv–1061–Orl–35GJK, 

, at *8 (M.D. Fla. June

28, 2011). Nonetheless, the district court granted a certificate of appealability on

Mr. Price’s claim of ineffective assistance of counsel. 

is limited to

the issue specified in the certificate of appealability, see Murray v. United States,

, 1250 (11th Cir. 1998), and for the reasons that follow, we affirm

the district court’s denial of relief.

                                                I

       Mr. Price, an African-American man charged with and convicted of a sex

crime against a blind Caucasian woman, alleges that his trial counsel rendered

constitutionally deficient assistance in failing to object to the prosecution’s use of a


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peremptory strike to remove Hilda Edlow, an African-American woman, from the

jury venire. See generally Strickland v. Washington, 

(1984); Batson

v. Kentucky, 

(1986). Throughout the examination of the venire, the

primary focus of both the prosecution and the defense was each prospective juror’s

ability to impartially examine the evidence and decide the guilt or innocence of a

man charged with a crime against a physically incapacitated person.            The

prosecution and defense each devoted the vast majority of their inquiries to

determining whether the potential jurors would be unduly sympathetic to a blind

victim.

      Ms. Edlow was one of the few members of the venire who gave any

indication that she might have difficulty applying the same standard to the sighted

and unsighted alike. But in the end, she agreed that, if the blind refuse to see

themselves as handicapped, society should hold them to the same standard as the

able-bodied. The prosecution struck prospective jurors who were initially hesitant

and ultimately equivocal, as well as those who said that the blind neither deserve

nor should receive any special accommodations or treatment at trial. When the

prosecution struck Ms. Edlow from the venire using one of its available

peremptory challenges, defense counsel did not object.

      Mr. Price was subsequently convicted and sentenced to ten years in prison

followed by fifteen years of probation. Though his term of imprisonment recently


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expired, his term of probation and designation as a sexual predator remain, and that

means he is still “in custody” for purposes of 28 U.S.C. § 2254. See Duvallon v.

Florida, 

, 484 (11th Cir. 1982) (“In the context of habeas

proceedings, the ‘in custody’ requirement may also be met where a petitioner is on

probation, parole or bail.”).

                                           II

      After his conviction became final, Mr. Price filed a motion for post-

conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. As to his

claim of ineffective assistance of counsel, the trial court denied relief without an

evidentiary hearing:

      In Ground II, Defendant argues that Trial Counsel rendered
      ineffective assistance by failing to object to the State’s peremptory
      challenge to a black female venire person during jury selection. In
      Ground III, Defendant argues that Trial Counsel rendered ineffective
      assistance by failing to object to the State’s peremptory challenges to
      one or more male venire persons during jury selection. The Court
      finds that both of these claims are facially insufficient, in that
      Defendant does not allege and cannot demonstrate that any biased
      juror actually served on his jury. Jenkins v. State, 

, 984
      (Fla. 4th DCA 2002). Accordingly, Grounds II and III are denied.

The Fifth District Court of Appeal affirmed, per curiam, the trial court’s denial of

Mr. Price’s Rule 3.850 motion. See Price v. State, 

(Fla. 5th DCA

2007).

         The district court rejected the ineffective assistance of counsel claim on the

prejudice prong of Strickland, ruling that Mr. Price “ha[d] not established that a

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reasonable probability exists that a race or gender balanced jury would have been

more likely to acquit or convict him of a lesser offense.”          Price, 

, at *7. The district court then observed our apparent consternation in

Eagle v. Linahan, 

, 943 n. 22 (11th Cir. 2001), as well as its own,

with the practical implications of requiring a showing of Strickland prejudice in

this context and granted a certificate of appealability on the ineffectiveness claim.

                                         III

        Under the Antiterrorism and Effective Death Penalty Act (AEDPA) we may

not grant federal habeas relief unless the state court’s adjudication of Mr. Price’s

claim

  (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). Mr. Price argues that the standard articulated by the state

court is not, in fact, the federal standard for a Batson-based Strickland claim. If

Mr. Price were right that the state court failed to apply the appropriate federal

standard, its decision would not be entitled to AEDPA deference. See Romine v.

Head, 

, 1365 (11th Cir. 2001) (“In other words, when there is grave

doubt about whether the state court applied the correct rule of governing federal


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law, § 2254(d)(1) does not apply. That is what we have here, so we proceed to

decide the issue de novo, as the district court did.”).

      Because Mr. Price cannot show that his counsel’s conduct was prejudicial in

the Strickland sense under de novo review, “we need not determine whether

AEDPA’s deferential standard of review . . . applies in this situation.” Trepal v.

Sec’y, Fla. Dept of Corr., 

, 1109 (11th Cir. 2012) (quoting Berghuis

v. Thompkins, 

, (2010)). “That is[,] even if AEDPA deference does

not apply, [Mr. Price] cannot show [prejudice] under de novo review, the more

favorable standard of review for [him].” 

to succeed on his ineffective assistance of counsel claim, Mr. Price

must show−in addition to deficient performance−a reasonable probability that “the

result of the proceeding would have been different.” 

.

Although a successful Batson claim requires automatic reversal on direct appeal,

see Rivera v. Illinois, 

, 161 (2009), the same is not true on collateral

review. Despite Mr. Price’s arguments to the contrary, “the law of this circuit [is]

that an ineffective assistance of counsel claim based on the failure to object to a

structural error at trial requires proof of prejudice.” Purvis v. Crosby, 

, 742 (11th Cir. 2006) (addressing partial closing of a courtroom during trial).

In Jackson v. Herring, 

, 1361 (11th Cir. 1995), for example, we

addressed the showing Strickland requires of petitioners alleging ineffective


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assistance of counsel for failure to raise an equal protection objection under Swain

v. Alabama, 

(1965). We proceeded to “determine whether there

[was] a ‘reasonable probability’ of a different result sufficient to undermine our

confidence in the outcome of [the] case.” 

. We are bound

to do the same here, despite having expressed some concerns about Jackson in

n. 22.

      Having conducted a thorough review of the record, we agree with the district

court that “there is no evidence that an African American juror would have seen

the evidence any differently than the white jurors seated on the jury.” Price, 

, at *7. As the district court noted, race was not the central theme of

this case, and did not play a significant role. To be sure, the victim in this case was

Caucasian, and both Ms. Edlow and Mr. Price were African-American. But that

alone does not establish that “there is a ‘reasonable probability’ of a different result

sufficient to undermine our confidence in the outcome of this case.” 

. Significantly, Mr. Price does not attempt to show otherwise.

                                                IV

      Under our precedent, Mr. Price was not prejudiced under Strickland by his

counsel’s failure to object to the prosecution’s strike of Ms. Edlow. We therefore

affirm the district court’s denial of habeas relief.

      AFFIRMED.


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ANDERSON, Circuit Judge, concurring:

      I join the opinion for the court. In addition, I note that affirmance is also

required for a separate and independent reason – i.e., the record reveals an absence

of evidence that the performance of defendant’s trial counsel was deficient under

Strickland v. Washington, 

(1984). There is on the face of the voir

dire record a race-neutral reason for the prosecutor’s strike of Ms. Edlow.

Moreover, that record also reveals a good reason why the defense counsel might

not have wanted to object to the strike. Finally, Price has adduced no evidence of

deficient performance, and has failed to preserve any possible error with respect to

the failure to hold an evidentiary hearing.




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