MARCUS, Circuit Judge:
In this capital case, Daniel Burns appeals the district court's denial of his petition for a writ of habeas corpus. At the sentencing phase of his state court trial, Burns asked that the jury be instructed to draw no inference from his failure to testify. But the trial court refused to do so. On direct appeal, while the Florida Supreme Court concluded that the refusal violated Burns's Fifth Amendment privilege against self-incrimination, it also determined that any error was harmless. Burns collaterally attacked the Florida Supreme Court's harmless-error conclusion in federal court, again without success, and now appeals from that judgment.
After thorough review, we affirm. The Florida Supreme Court's determination is neither contrary to nor an unreasonable application of clearly established federal law. In fact, the Supreme Court has never held that the error Burns cites is immune from harmless-error review. Nor can we find that the failure to give a no-adverse-inference instruction had a substantial and injurious effect on the jury's recommendation.
The basic facts are these. In 1987, Daniel Burns and Samuel Williams traveled up Interstate 75, heading to Detroit from Fort Myers, Florida, when Jeff Young, a Florida Highway Patrol Trooper, pulled their car over. Burns v. State (Burns I), 609 So.2d 600, 602 (Fla.1992) (per curiam). Young asked Burns and Williams for identification, returned to his police car, and asked the radio dispatcher to check the identifications and the car's registration. Burns v. State (Burns II), 699 So.2d 646, 647-48 (Fla.1997) (per curiam). Young then asked Burns if he could check the car's trunk; Burns consented. Burns v.
Burns, as it turned out, was trafficking crack cocaine worth $10,000, some of which he hid in a bank bag in the car's trunk. Burns I, 609 So.2d at 602. Young found the cocaine and walked to his police car to report his discovery. Burns, however, rushed Young. A struggle ensued. Being far heavier than Trooper Young, Burns grabbed Young, wrestled him to the ground, and enveloped Young with his body. As Young sought to escape, Burns put him in a reverse bear hug, picked him off the ground, and flung him around. The two men struggled and eventually fell into a ditch by the side of the road. Burns choked and repeatedly punched Young. Burns then clawed Young's gun off its holster. Burns v. Dep't of Corr. (Burns IV), No. 07-cv-1275, 2011 WL 3563102, at *2 (M.D.Fla. Aug. 10, 2011). Bystanders gathered around the fight and almost intervened on Young's behalf, but Young instructed them to stay back because Burns had his firearm. Burns I, 609 So.2d at 602. Burns stood in front of Young with the gun aimed directly at the Trooper. On his knees, Young put his hands in front of his face to shield himself and told Burns that he did not have to do this, that Burns could just walk away. Id. at 602-03. Burns did not walk away. He fatally shot Young in the head. Burns then instructed Williams to drive off and hide the drugs. Williams sped off, and Burns "walked casually" into a nearby marshy area. Despite Burns's attempt to hide in the marshes, the police found and arrested him later that day. Burns IV, 2011 WL 3563102, at *2.
On May 3, 1998, Burns's trial began. The jury found Burns guilty of first-degree murder and drug trafficking. Burns I, 609 So.2d at 603. The state sought the death penalty, and, by a vote of ten to two, the jury recommended a sentence of death. The trial court followed the jury's recommendation and sentenced Burns to death. Id. The court found that one statutory mitigator (a lack of criminal history) and five nonstatutory mitigators applied to Burns, but the nonstatutory mitigators deserved little weight. Id. at 603 & nn. 3-4. It also found two compelling statutory aggravators — that Burns murdered to avoid arrest and that the murder was heinous, atrocious, and cruel. Burns appealed this decision to the Florida Supreme Court.
Florida's high court unanimously affirmed the conviction but found error in the sentencing proceeding. The murder was not heinous, atrocious, or cruel, the Florida Supreme Court reasoned, because the struggle between Burns and Young "was short" and the gunshot wound "caused rapid unconsciousness followed within a few minutes by death." Id. at 606. Since it could not determine what weight the trial court accorded the various aggravators and mitigators, the Florida Supreme Court vacated the sentence and remanded for a new proceeding. Id. at 607.
The second sentencing proceeding began in April 1994. At pre-trial conference, the state asked if it could introduce evidence of Burns's lack of remorse in its case in chief. The sentencing court answered that the state could not, characterizing the effort as "improper." That said, the sentencing court ruled that the state could discuss Burns's remorse in rebuttal if Burns introduced any remorse-related evidence. The state did not mention remorse in its case in chief. Instead, it presented witnesses who described the egregious nature of the
Burns presented thirty-five witnesses in his defense. At least four of them — the defendant's aunt, one of his sisters, one of his brothers, and a family pastor — testified that Burns evinced genuine remorse for Trooper Young's death. However, none of them remembered Burns describing the facts surrounding the shooting or that he was transporting crack cocaine when the fatal shots were fired. The defendant's aunt specifically recounted that Burns "had receive[d] the Lord," that he was now a different person, that he was sorry for killing Young, and that he knew life was precious in God's sight. But Burns never spoke of his attempt to transport cocaine.
Burns's sister likewise said her brother was unable to understand how the murder happened, was "so sad," and was "extremely sorry for [Young's] family." On cross-examination, however, she conceded Burns never told her about crack cocaine or explained how he killed the Trooper. And like some of the other defense witnesses, the sister explained that Burns considered the murder an "accident." Another sibling, the defendant's brother, explained, when asked about remorse, that Burns was filled with sorrow and the Trooper's death was a "tragedy, mistake, accident." He too conceded that Burns never told him about crack cocaine. The defendant also called a family friend and pastor who visited Burns regularly in prison. He explained that Burns had grown spiritually, he had sorrow in his heart, and the sorrow grew out of the defendant's remorse. But like the others, the pastor recounted that Burns had not confessed to the facts surrounding the murder.
Several witnesses (including his friends and a former girlfriend) testified that Burns had an impoverished childhood, that he regularly sacrificed himself for the good of his family, and that he was a "very nice person." One witness observed that the defendant was depressed, and several others described him as a religious, caring, and spiritual person. None of the defendant's witnesses ever recalled the defendant explaining the circumstances surrounding the shooting and none recalled Burns ever mentioning that he was transporting crack cocaine in his trunk when he was stopped.
Burns never testified at sentencing, and at the charge conference, he requested a no-adverse-inference instruction that the jurors should not draw any negative inference from his failure to testify. Although the law was by then clear that, if a criminal defendant sought a no-adverse-inference instruction at trial, the judge was obliged to give one, the state objected because this was a sentencing proceeding. The sentencing court agreed that the instruction was unnecessary. During closing argument, the state sought to counter Burns's claim that he felt true remorse, underscoring that the defendant had refused to share the basic facts about the murder with his family, his friends, or his pastor. "[O]ne cannot truly show remorse," the state argued, "unless one is honest with oneself, unless one is honest with one's family, unless one is honest with others and telling them what you have truly done."
This time the jury returned a unanimous recommendation of death, and the court followed the jury's recommendation. In
Burns appealed the capital sentence to the Florida Supreme Court, claiming among other errors that the sentencing court violated his Fifth Amendment privilege against self-incrimination when it refused to give a no-adverse-inference instruction. Burns II, 699 So.2d at 647, 651. The Florida Supreme Court agreed that the Fifth Amendment privilege against self-incrimination required giving on request a no-adverse-inference instruction in a capital sentencing proceeding. Id. The Florida Supreme Court relied on Carter v. Kentucky, a Supreme Court opinion from 1981, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), reasoning that "[t]he United States Supreme Court has recognized... that a defendant who does not testify may suffer a penalty if `the jury is left to roam at large with only its untutored instincts to guide it.'" Burns II, 699 So.2d at 651 (quoting Carter, 450 U.S. at 301, 101 S.Ct. 1112). Nevertheless, the Florida Supreme Court thought the error did not warrant automatic reversal, and
Burns unsuccessfully petitioned for a writ of certiorari from the Supreme Court. Burns v. Florida, 522 U.S. 1121, 118 S.Ct. 1063, 140 L.Ed.2d 123 (1998). He also sought post-conviction relief from Florida's courts, but this was unsuccessful as well. Burns III, 944 So.2d at 249. Burns then filed this federal habeas petition, raising seven claims, in the United States District Court for the Middle District of Florida. First, and relevant for our purposes, he argued that the sentencing court violated his constitutional privilege against self-incrimination when it denied his request for a no-adverse-inference instruction. The district court denied Burns's petition too. Burns IV, 2011 WL 3563102, at *1. Burns then sought a certificate of appealability, which we granted only as to Burns's claim that the resentencing court erred by failing to give the no-adverse-inference instruction.
We review a district court's decision to grant or deny habeas relief de novo. Fotopoulos v. Sec'y, Dep't of Corr., 516 F.3d 1229, 1232 (11th Cir.2008). This habeas petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, and AEDPA imposes an "exacting standard" of review. Maharaj v. Sec'y, Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir.2005). Where a state court adjudicates a claim on the merits, a federal court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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).
"Clearly established Federal law" means the holding, as opposed to the dicta, of a Supreme Court decision as of the time of the relevant state-court decision. Gary v. Hall, 558 F.3d 1229, 1254 (11th Cir.2009). A state court's decision is "`contrary to' established federal law" if the decision "applies a rule that contradicts the governing law set forth in" Supreme Court opinions. Id. A state court's decision is an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal rule but unreasonably applies it to the facts of the particular state prisoner's case," or if the state court "unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context." Reese v. Sec'y, Fla. Dep't of Corr., 675 F.3d 1277, 1286 (11th Cir.2012) (quoting Greene v. Upton, 644 F.3d 1145, 1154 (11th Cir.2011)).
The only claim here is that the Florida Supreme Court erred when it applied Chapman harmless-error review and concluded that any error was harmless beyond
Burns first says that the failure to give a no-adverse-inference instruction is so fundamental, so structural that reversal would be automatic. We are not persuaded.
Burns claims the instant error is structural, but in 1997 there was no clearly established Supreme Court law that the failure to afford a no-adverse-inference instruction was structural, as opposed to trial error. Indeed, the Supreme Court has never offered an opinion about the matter,
Nor was the Florida Supreme Court's decision an unreasonable application of clearly established federal law. "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Renico v. Lett, 559 U.S. 766, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (emphasis omitted). A state court's ruling is an unreasonable application of clearly established federal law if the ruling "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Reese, 675 F.3d at 1286 (quoting Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011)). Nothing suggests that the Florida Supreme Court's decision was unreasonable, given the state of the law in 1997. To the contrary, Carter did not demand that the Florida Supreme Court apply the structural error doctrine. Fulminante itself recognized that most errors will be harmless. 499 U.S. at 306, 111 S.Ct. 1246. Although the failure to give a no-adverse-inference instruction may be serious, the conclusion that it does not pervade or infect the entire trial and may be quantitatively assessed from a trial record is not so lacking in justification as to be an unreasonable application of clearly established Supreme Court law. Cf. United States v. Burgess, 175 F.3d 1261, 1266 (11th Cir.1999) ("[T]he failure of a court upon proper request to deliver a no-adverse-inference instruction would be classified as a classic trial error, able to be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." (quoting Fulminante, 499 U.S. at 309, 111 S.Ct. 1246) (internal quotation marks omitted)). Plainly, it is not like a case, say, where a defendant lacks a lawyer or where the judge is biased against the defendant yet nonetheless presides over an entire trial. See Gideon, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Tumey, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749.
In short, the Florida Supreme Court's conclusion was neither contrary to nor an unreasonable application of clearly established federal law.
In addition to claiming that the trial court's failure to give a no-adverse-inference
On direct review, a federal constitutional error is harmless where a reviewing court can "declare a belief that it was harmless beyond a reasonable doubt." Chapman, 386 U.S. at 24, 87 S.Ct. 824. But because this is an AEDPA case in which the Florida Supreme Court applied the Chapman harmless-error standard, we could grant habeas relief only if the Florida Supreme Court applied the Chapman standard unreasonably, see Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam), a standard widely known as AEDPA/Chapman.
Moreover, as a federal habeas court, we apply a different harmless error analysis than the one articulated in Chapman. On collateral review, a federal constitutional error is harmless unless there is "actual prejudice," meaning that the error had a "substantial and injurious effect or influence" on the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). "To show prejudice under Brecht, there must be more than a reasonable possibility that the error contributed to the conviction or sentence." Mansfield v. Sec'y, Dep't of Corr., 679 F.3d 1301, 1313 (11th Cir.2012). Harmlessness under the Brecht standard is a question of law that we review de novo. Vining v. Sec'y, Dep't of Corr., 610 F.3d 568, 571 (11th Cir.2010) (per curiam). "[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the `substantial and injurious effect' standard set forth in Brecht, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the `harmless beyond a reasonable doubt' standard set forth in Chapman." Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (citation omitted). The standard set forth in Brecht is more favorable and less onerous on the state, and thus less favorable to the defendant, than the Chapman standard. Brecht, 507 U.S. at 637, 113 S.Ct. 1710. Thus, there are two possible harmless-error standards, and "[i]t is clear that when a state court on direct review has determined that the alleged constitutional error was harmless under Chapman," as the Florida Supreme Court did here, "a habeas petition cannot be successful unless it satisfies both AEDPA/Chapman and Brecht." Mansfield, 679 F.3d at 1307. But we need not apply both standards in every case. "[I]t certainly makes no sense to require formal application of both tests (AEDPA/Chapman and Brecht) when the latter obviously subsumes the former." Fry, 551 U.S. at 120, 127 S.Ct. 2321. Accordingly, "relief may be denied on the basis of Brecht alone." Mansfield, 679 F.3d at 1308. Applying the Brecht standard here, we conclude that the failure to give a no-adverse-inference instruction did not have a substantial and injurious effect or influence on the jury's sentence recommendation.
Burns could not have been prejudiced by the failure to give the instruction, because the state never once commented on
In fact, the state's questions about remorse arose only on cross-examination and were offered only in response to Burns's claim that he was remorseful. This matters, because, although Burns could introduce evidence concerning remorse as a nonstatutory mitigator under Florida law, see Ault v. State, 53 So.3d 175, 193 (Fla. 2010) (per curiam), the state had a legitimate interest in counteracting that evidence once he did so, see Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). And statements "clearly responsive" to a defendant's argument, like the state's questions and comments here, are generally not considered as "intended in any respect to comment adversely" on the criminal defendant's decision to remain silent. United States v. Thompson, 422 F.3d 1285, 1299 (11th Cir. 2005); see also United States v. Herring, 955 F.2d 703, 709 (11th Cir.1992) ("The prosecutor's comment [on the defendant's silence] was fairly intended to rebut a defense lawyer's improper objection ... [and] was not manifestly intended to comment on [the defendant's] right not to testify.").
Moreover, the mitigators here were weak and the aggravators were strong. The claimed error could not have had a substantial and injurious effect or influence on the jury's sentencing recommendation. The failure to give the jury instruction could only have affected one of five mitigators (Burns's remorse); the supposed error could not have affected any of the other mitigators or aggravators. As far as we can tell, remorse had no influence on the conclusion that Burns killed to avoid or prevent his lawful arrest or that Burns murdered to disrupt law enforcement or, finally, that Burns killed Trooper Young while Young was engaged in his official duties as a police officer. Likewise, remorse could not affect the weight of the other mitigators — that Burns was 42 years old when he murdered Young, that Burns had no significant history of criminal activity, that Burns grew up in a poor, rural
These mitigators, including remorse, pale in comparison to the merged aggravator. The facts overwhelmingly establish that Burns bought crack cocaine in order to sell it and that, when Young discovered the drugs in Burns's car, Burns did not surrender. Instead, he brutally attacked Young, using his considerable size advantage to clamp, choke, and pummel Young, and to seize Young's weapon. Once on his knees after the battering he sustained, Young begged Burns to walk away. Burns nevertheless aimed the gun at Young's face in front of a few witnesses, all of whom Young ordered to stay away, even though they might have saved him. Rather than disabling Young or fleeing, Burns shot Young through his hands and in the face.
We add that it wasn't only Burns's failure to fully disclose the details of his crime that evinced a lack of remorse. Some of the defendant's witnesses also said Burns described the murder as an accident, a mistake, or a "terrible accident." Since an accident may be an undesirable and fortuitous event that occurs unintentionally, whereas remorse connotes a sense of culpability or acceptance of wrongdoing, Burns's description of the Trooper's death also could be seen as manifesting a lack of remorse. This evidence came from the defendant's witnesses, and only on cross-examination. Reviewing the record as a whole and applying Brecht, we conclude the claimed error did not have a substantial and injurious effect on the jury's capital sentence recommendation.
AFFIRMED.
Fla. Stat. § 921.141(5). Section 921.141 also lists statutory mitigators. "Mitigating circumstances shall be the following: (a) The defendant has no significant history of prior criminal activity .... (g) The age of the defendant at the time of the crime." Id. § 921.141(6). The sentencing court considered age a mitigating factor because it demonstrated, when coupled with Burns's lack of history of prior criminal activity, that Burns followed the law for many years.