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                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13179
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 3:10-cv-00015-MCR-MD


TIMOTHY LOUIS PARKER,

                                                           Petitioner-Appellant,

                                  versus


SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                       ________________________

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

                            (February 6, 2014)

Before CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

PER CURIAM:
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      Timothy Parker, a Florida inmate serving a 15-year sentence for aggravated

battery on a pregnant person, appeals the denial of his 28 U.S.C. § 2254 petition

for a writ of habeas corpus. We granted Parker a certificate of appealability (COA)

on a single claim raised in his federal habeas petition, in which he alleged that

counsel was ineffective for failing to object to the trial court’s jury instruction on

aggravated battery or to request a modified instruction that expressly required the

State to prove that the victim was pregnant at the time of the offense.

                                           I.

      In April 2003, Parker was charged in Florida state court with aggravated

battery on a pregnant person, in violation of Fla. Stat. § 784.045(1)(b). The

charging information, largely tracking the statutory language, alleged that on April

7, 2003, Parker committed “a battery upon Barbara Ann Lewis by actually and

intentionally touching or striking said person against her will, . . . and at the time of

the commission of said battery [Lewis] was pregnant and [Parker] knew or should

have known that [she] was pregnant.”

      At his trial, which began and ended on September 3, 2003, Lewis testified

that she and Parker were involved in a short-term relationship and briefly lived

together in a motel room. She testified that on April 7, 2003, Parker struck her in

the face with his closed fist after she rebuffed his sexual advances, and that only a

day before he hit her in the leg with a metal cane. Lewis testified that she was six


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months’ pregnant at the time and, although Parker was not father, he knew of the

pregnancy because they had “talked about being together when the baby came.”

Lewis admitted on cross-examination that she drank alcohol and smoked crack

cocaine while she was pregnant, though she denied that Parker had ever asked her

to stop using drugs during her pregnancy. Deputy Jeremy Jarman, the officer who

responded to the 911 call placed by Lewis, testified that when he arrived at the

couples’ motel room he noticed that Lewis had “massive swelling on the left side

of her face,” “a bruise to her right forearm,” and “swelling to her right leg.”

Deputy Jarman offered Lewis medical attention but she declined. Parker did not

testify or present any evidence in his defense.

      During closing arguments, defense counsel reminded the jury that Lewis had

admitted to drinking alcohol and using crack cocaine while pregnant, and

suggested that Lewis was retaliating against Parker because he had asked her to

stop those activities. Defense counsel also maintained that Lewis’ refusal to seek

medical treatment following the incident called into question her testimony that

Parker had hit her. The State, responding to defense counsel’s arguments, asserted

that the uncontroverted evidence showed that Lewis was battered by Parker, that

she was pregnant at the time, and that Parker was well aware of the pregnancy. In

rebuttal, defense counsel did not challenge the State’s assertion that Lewis was

pregnant at the time, instead arguing that Lewis declined medical treatment


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because she wasn’t “really hurt” and that she had to “accept some responsibility for

the situation she found herself in” because “[s]he kept going back” to Parker.

      In its instructions, the trial court told the jury that Parker had been accused

of battering Lewis while she was pregnant and with knowledge that she was

pregnant. The court, without objection from either side, then gave Florida’s

standard jury instruction on aggravated battery on a pregnant woman, apprising the

jurors that the State had to prove “two elements beyond a reasonable doubt” to

convict Parker of the charged offense: (1) that the “defendant intentionally

touched or struck Ms. Lewis against her will”; and (2) that the “defendant in

committing the battery knew or should have known that Ms. Lewis was pregnant.”

See Fla. Std. Jury Instr. (Crim.) 8.4 (2003). The jury found Parker guilty as

charged, and he was sentenced to 15 years imprisonment as a habitual felony

offender. Florida’s First District Court Appeal summarily affirmed Parker’s

conviction and sentence on April 21, 2005. See Parker v. State, 

(Fla. 1st DCA 2005).

      During the pendency of Parker’s direct appeal, but more than a year after his

trial, Florida’s First District Court of Appeal held that the standard jury instruction

on aggravated battery on a pregnant person was flawed because it omitted an

essential element of the offense — “that the victim was, in fact, pregnant at the

time of the battery.” Small v. State, 

, 864 (Fla. 1st DCA 2004).


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The Small court, in response to a properly preserved challenge to the instruction,

reasoned that the second element of the standard instruction — that the defendant

knew or should have known the victim was pregnant — “appear[ed] to presume

that the victim was pregnant” and, as such, the instruction as a whole “had the

effect of directing a verdict against [the defendant]” on the essential element that

the victim was pregnant. 

concluded that, under the circumstances of

that particular case, the erroneous instruction was not harmless because the

“alleged victim did not testify,” “much of the evidence came in because of

exceptions to the hearsay rule,” and the defendant requested a proper instruction at

trial. 

The court further noted that, even if the defendant had not

requested a proper instruction at trial, “the failure to give a proper instruction

would likely have qualified as fundamental error” exempt from harmless error

review “because the omitted element was disputed at trial.” 

of

appeals urged the Florida Supreme Court to modify the standard jury instruction on

aggravated battery on a pregnant person, 

state’s highest court

eventually did in July 2007, see In re Standard Jury Instructions in Criminal Cases,

, 313 (Fla. 2007).

      On July 13, 2005, Parker filed a state post-conviction motion under Florida

Rule of Criminal Procedure 3.850, contending, in relevant part, that trial counsel

was constitutionally ineffective in failing to object to the standard jury instruction


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on the ground that it did not explicitly require the State to prove that the victim was

pregnant at the time of the battery, and in failing to request a modified instruction

that included this requirement. The state trial court rejected the foundation of

Parker’s ineffective assistance claim, finding that it was “conclusively refuted by

the record” because “the Court properly instructed the jury regarding the elements

of the offense charged in this case.” On February 23, 2006, Florida’s First District

Court of Appeal summarily affirmed the denial of Parker’s ineffective assistance

claim without further discussion. See Parker v. State, 

, 337 (Fla. 1st

DCA 2006). It did so despite its earlier decision in Small and without even

mentioning that decision.

      After filing additional state post-conviction motions, which were dismissed

as successive and untimely, Parker filed his federal habeas petition in January

2010, reiterating his claim of ineffective assistance of counsel. He asserted that

counsel should have known that the jury instruction did not fully track the

language of Fla. Stat. § 784.045(1)(b), and while he acknowledged that Lewis’

unrebutted trial testimony indicated that she was pregnant at the time of the

battery, he asserted that she “was not in fact pregnant” and that the State had failed

to present any medical evidence to corroborate her testimony.

      The district court denied the § 2254 petition, finding that trial counsel was

not ineffective for failing to request a different jury instruction because, at the time


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of Parker’s trial, no state court had held that the standard jury instruction on

aggravated battery was deficient. The court emphasized that an attorney cannot be

deemed ineffective for failing to anticipate a later change in the law, which

occurred when the First District Court of Appeal issued its decision in Small more

than a year after the trial of this case.

                                            II.

       In accordance with our COA, Parker broadly contends that his trial attorney

rendered ineffective assistance of counsel in failing to object to the standard jury

instruction on aggravated battery or to request a modified instruction that explicitly

required the State to prove that the victim was pregnant at the time of the offense.

However, he devotes the bulk of his counseled brief to arguing that the trial court’s

jury instruction, by omitting an essential element of the offense, violated his due

process right to a fair trial. That due process claim is not properly before us

because it was not raised in Parker’s § 2254 petition and is outside the scope of the

COA. See Murray v. United States, 

, 1251 (11th Cir. 1998) (holding

that appellate review in a habeas case “is limited to the issues specified in the

COA”). Although the due process claim that Parker attempts to pursue on appeal

is factually related to the ineffective assistance claim encompassed by the COA,

the two claims are legally and analytically distinct. See Bailey v. Nagle, 

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1299, 1304 n.8 (11th Cir. 1999) (“An ineffective-assistance claim is analytically

distinct from the substantive claim underlying it.”).

      As to the ineffective assistance of counsel claim properly before us in this

appeal, we review de novo the district court’s rejection of that claim. See McNair

v. Campbell, 

, 1297 (11th Cir. 2005). To prevail on an ineffective

assistance claim, a petitioner must demonstrate both deficient performance and

prejudice — that “counsel’s representation fell below an objective standard of

reasonableness,” and that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington, 

, 688, 694, 

, 2064, 2068

(1984). There is a “strong presumption that counsel’s conduct [fell] within the

wide range of reasonable professional assistance,” 

104 S.Ct. at 2065,

and a petitioner seeking to overcome that presumption must establish “that no

competent counsel would have taken the action that his counsel did take,”

Chandler v. United States, 

, 1315 (11th Cir. 2000) (en banc). Where

a petitioner challenges his conviction based on the alleged errors of counsel, the

prejudice inquiry asks “whether there is a reasonable probability that, absent the

errors, the factfinder would have had a reasonable doubt respecting guilt.”

, 104 S.Ct. at 2068–69. In making this determination,




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we “must consider the totality of the evidence before the judge or jury.” 

104 S.Ct. at 2069.

      Federal habeas review of claims adjudicated on the merits in state court,

however, is generally circumscribed by two principles of deference, one dealing

with questions of federal law and the other with questions of state law. First, the

Antiterrorism and Effective Death Penalty Act (AEDPA) precludes the grant of

federal habeas relief on a claim adjudicated on the merits in state court unless the

state court’s decision involved an unreasonable application of clearly established

federal law or was based on an unreasonable determination of the facts. 28 U.S.C.

§ 2254(d). Second, because state courts are the ultimate expositors of state law,

federal habeas courts are bound by state-court determinations on state-law

questions. See Estelle v. McGuire, 

, 67–68, 

, 480 (1991)

(“[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.”); Mullaney v. Wilbur, 

, 691,

, 1886 (1975) (“This Court . . . repeatedly has held that state courts

are the ultimate expositors of state law, and that we are bound by their

constructions except in extreme circumstances . . . .”) (citation omitted); Cargill v.

Turpin, 

, 1381 (11th Cir. 1997) (“We are not at liberty to challenge

[a] state court determination of state law.”).




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      Both of these principles are implicated in this case. The state trial court, in a

decision summarily affirmed by Florida’s First District Court of Appeal, rejected

the state-law underpinnings of Parker’s ineffective assistance claim by finding that

the jury was, as a matter of state law, properly instructed on the elements of

aggravated battery on a pregnant person. Ordinarily, we would be bound by the

states courts’ determination that the challenged jury instruction was proper, which,

in turn, would fatally undermine Parker’s contention that his trial attorney was

ineffective for failing to object to that instruction. But the deference generally

owed to state-court determinations on state-law questions is complicated in this

case by the fact that, less than two years earlier, Florida’s First District Court of

Appeal — the same appellate court that summarily affirmed the denial of Parker’s

ineffective assistance claim — held that the same standard instruction that was

given at Parker’s trial was defective.

      Although these seemingly contradictory state-law rulings raise an interesting

theoretical question, we need not resolve it. Nor do we need to decide how to

apply AEDPA deference when a state court’s decision on a question of federal law

hinges upon a disputed interpretation of state law. The reason we need not decide

these issues is because, even if we were to assume that the challenged jury

instruction was improper as a matter of state law, Parker would still not be entitled

to federal habeas relief under de novo review. See Berghuis v. Thompkins, 560


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, 390, 

, 2265 (2010) (“Courts can . . . deny writs of habeas

corpus under § 2254 by engaging in de novo review when it is unclear whether

AEDPA deference applies . . . .”). Parker would not be entitled to such relief for

two independent reasons.

      First, as the district court properly concluded, Parker has not shown that his

trial counsel rendered deficient performance in failing to object to the jury

instruction on aggravated battery, which was drawn almost verbatim from the then-

existing standard instruction that had been approved by the Florida Supreme Court.

At the time of his trial in September 2003, no Florida court had held that the

standard jury instruction was flawed. The Smalls decision was not issued until

November 30, 2004, more than a full year after Parker’s trial. It is well settled in

this circuit that an attorney cannot be deemed ineffective for failing to anticipate a

later change in the law. See Black v. United States, 

, 1144, 1146

(11th Cir. 2004) (holding that counsel does not render deficient performance in

“failing to predict what was not yet a certain holding” and where, at the relevant

time, “the legal principle at issue [was] unsettled”); United States v. Ardley, 

, 993 (11th Cir. 2001) (noting that “we have a wall of binding precedent

that shuts out any contention that an attorney’s failure to anticipate a change in the

law constitutes ineffective assistance of counsel,” and that precedent applies even

when the “issue was, in hindsight, a sure fire winner”); Jackson v. Herring, 

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1350, 1359 (11th Cir. 1995) (“To be effective within the bounds set by Strickland,

an attorney need not anticipate changes in the law.”); Spaziano v. Singletary, 

, 1039 (11th Cir. 1994) (“We 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.”) (quotation marks

and brackets omitted).

      We recognize that the Florida Supreme Court has long adhered to the view

that standard jury instructions are not necessarily correct and that its approval of

those instructions does not foreclose parties from requesting alternative

instructions or contesting the correctness of the approved instructions. See

Standard Jury Instructions in Criminal Cases, 

, 123 (Fla. 1998).

Nevertheless, we cannot conclude that no reasonable trial attorney would have

failed to object to the standard jury instruction that had yet to be questioned, much

less disparaged, by any state appellate court, particularly given that the undisputed

evidence presented at Parker’s trial showed that the victim was pregnant at the time

of the offense. Parker has therefore failed to show that trial counsel’s performance

was constitutionally deficient.

      Second, Parker has also failed to demonstrate that he was prejudiced by

counsel’s allegedly deficient performance. Lewis’ testimony that she was six

months’ pregnant at the time of the offense was not contradicted by any other


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evidence introduced at trial. In light of that uncontradicted testimony, there is no

reasonable probability that the jury would have acquitted Parker of the charged

offense had the trial court specifically instructed it that the State had to prove the

victim’s pregnancy beyond a reasonable doubt. Throughout his federal habeas

proceedings, Parker has espoused the view that Lewis’ testimony, though

unrebutted, was insufficient to support his conviction because the State did not

offer any conclusive medical evidence to corroborate her claimed pregnancy. That

is wrong. Lewis’ testimony, if believed by the jury, was alone sufficient to

establish beyond a reasonable doubt that she was pregnant at the time of the

battery. See, e.g., Craig v. Singletary, 

, 1044 (11th Cir. 1997)

(explaining that even “the uncorroborated testimony of a co-conspirator or

accomplice is sufficient to prove guilt beyond a reasonable doubt”). The jury was

entitled to credit her testimony. See United States v. Prince, 

, 959 n.3

(11th Cir. 1989) (“Weighing the credibility of witnesses . . . is within the province

of the jury, and the jury is free to believe or disbelieve any part or all of the

testimony of a witness.”).

      Because Parker cannot prevail on his ineffective assistance of counsel claim

on de novo review, we affirm the district court’s denial of his § 2254 habeas

petition.

      AFFIRMED.


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