Case: 12-12441    Date Filed: 03/06/2014   Page: 1 of 6


                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-12441
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:09-cv-20586-JAL



JACK L. PRICE,

                                                           Petitioner-Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                        ________________________

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

                               (March 6, 2014)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jack Price, a Florida prisoner, appeals the denial of his petition for writ of

habeas corpus. See 28 U.S.C. § 2254. Price argued that trial counsel was

ineffective for failing to strike a prospective juror whose responses during voir dire

suggested that she thought a defendant should testify at trial. We issued a

certificate of appealability to resolve “[w]hether the district court erred in finding

that Price’s consent to the jury panel precluded him from establishing that counsel

was ineffective for failing to challenge juror Magda Brau for cause.” Because it

was not an unreasonable application of clearly established federal law for the

Florida courts to conclude that Price could not argue that counsel had been

ineffective for failing to strike a juror that Price had approved, we affirm.

      During voir dire, defense counsel asked the jury panel if they “would expect

Mr. Price or any defendant to sit on that witness stand and testify.” Juror Brau’s

responses arguably suggested that she thought a defendant should testify:

      Mr. Friedman: . . . Do you understand [the defendant] has no burden
      whatsoever placed upon him and that is the way the law is created.
      The defendant doesn’t have to defend himself or he doesn’t have to do
      anything?

      Prospective Juror Brau: Doesn’t he want to help himself because he
      already hired you? Doesn’t he want to help himself as well?

      Mr. Friedman: Perhaps the evidence states that the case against Mr.
      Price is so week (sic) that he doesn’t have to get in the witness stand.
      That is a possibility. Perhaps he is the type of individual who doesn’t
      speak well in front of others and he gets so nervous and fluster[ed]
      that he wouldn’t present himself as a good witness. There could be
      multiple scenarios of why a person choses (sic) not to testify for

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      himself. You understand the way our legal system [was] created, the
      fifth amendment doesn’t allow you to incriminate against yourself.
      They have to proffer everything. Ms. Brau?

      Prospective Juror Brau: As far as I am concerned, he is here. Why is
      he here? Wouldn’t he have to go up there to say why he is here?

      Mr. Friedman: Are you saying there are absolutely no scenarios where
      a person who does not testify on his own behalf end up being found
      [not] guilty. That is possible isn’t it?

      Prospective Juror Brau: I am sure it is. I haven’t—I don’t know. It
      feels like he should defend himself.

      Mr. Friedman: I appreciate your honesty.

      Defense counsel and the State accepted Juror Brau for the petit jury. Before

the jurors returned to the courtroom, the district court asked Price if he was

satisfied with the jurors seated by his attorney, and he responded affirmatively.

      The Court: Mr. Price, you have been sitting here throughout this
      process. Do you agree with the jurors that have been selected by your
      lawyer?

      The Witness [Price]: Yes, I do.

      The jury convicted Price of aggravated battery with a deadly weapon. See

Fla. Stat. §§ 775.087, 784.045(1)(a)(2). The verdict form stated that Juror Brau

served as the foreperson of the jury. The Florida court sentenced Price to 15 years

of imprisonment. Later, the state appellate court affirmed Price’s conviction and

sentence. Price v. State, 

(Fla. Dist. Ct. App. 2006).




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      Price filed a motion for postconviction relief, see Fla. R. Crim. P. 3.850,

which a Florida court denied. Relevant to this appeal, Price argued that his trial

counsel was ineffective for failing to remove Brau from the jury panel. Price

argued that Brau was biased because she thought he needed to prove his innocence

and that he was prejudiced because Brau served as the foreperson of the jury. The

Florida court ruled that Price could not acquiesce in counsel’s decision to select

Brau as a juror and later relitigate that decision in a collateral proceeding under the

guise of ineffective assistance of counsel. The state appellate court affirmed

summarily. Price v. State, 

(Fla. Dist. Ct. App. 2008).

      Price filed a federal petition for a writ of habeas corpus and raised the same

claim of ineffective assistance of counsel. The district court accepted the

recommendation of a magistrate judge and denied Price’s petition. The district

court ruled that “Price produced no evidence proving trial counsel’s deficiency”

when “Price consented to the selection of the jury, including Brau” and the “denial

of [Price’s] claim [was] not contrary to or an unreasonable application of

Strickland.”

      Price must “[s]urmount[] [a particularly] high bar” to obtain a writ of habeas

corpus on his claim of ineffective assistance of counsel. Padilla v. Kentucky, 

, 371, 

, 1485 (2010). Under the Antiterrorism and

Effective Death Penalty Act, a petitioner is entitled to a writ of habeas corpus if the


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state court reached a decision that was “contrary to, or involved an unreasonable

application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A state

court makes an “unreasonable application” of clearly established federal law only

when the court “ ‘identifies the correct governing legal principle from [the]

decisions [of the Supreme Court] but unreasonably applies that principle to the

facts’ of petitioner’s case.” Wiggins v. Smith, 

, 520, 

,

2534–35 (2003) (quoting Williams v. Taylor, 

, 413, 

,

1523 (2000)). “If [the] Court has not broken sufficient legal ground to establish an

asked-for constitutional principle, the lower federal courts cannot themselves

establish such a principle with clarity sufficient to satisfy the AEDPA bar.”

, 120 S. Ct. at 1506–07.

      The district court correctly denied Price’s petition. The state courts ruled

that Price could not prove that his counsel had been deficient for failing to remove

a juror whom Brau had agreed should be impaneled. See Strickland v.

Washington, 

, 691, 

, 2066 (1984) (“The

reasonableness of counsel’s actions may be determined or substantially influenced

by the defendant’s own statements or actions.”); see also United States v. Olano,

, 733, 

, 1777 (1993) (“[W]aiver is the intentional

relinquishment or abandonment of a known right.” (internal quotation marks and

citation omitted)). Price cites no precedent of the Supreme Court establishing that


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“the state court’s ruling . . . was so lacking in justification that there was an error

well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 562 U.S. ____, 

,

786–87 (2011). The decision by the state court that trial counsel was not

ineffective is not contrary to or an unreasonable application of clearly established

federal law.

      We AFFIRM the denial of Price’s petition for a writ of habeas corpus.




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