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Full Opinion
USCA11 Case: 22-12801 Document: 36-1 Date Filed: 09/16/2025 Page: 1 of 20
NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12801
Non-Argument Calendar
____________________
MICHAEL TRAMEL,
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
D.C. Docket No. 3:19-cv-01071-MMH-MCR
____________________
Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
USCA11 Case: 22-12801 Document: 36-1 Date Filed: 09/16/2025 Page: 2 of 20
2 Opinion of the Court 22-12801
Michael Tramel appeals the denial of his petition for a writ
of habeas corpus under 28 U.S.C. section 2254. After careful re-
view, we aļ¬rm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Tramelās half-brother was shot and killed. At the funeral, in
front of his family, Tramel got into a fight with Johnathan Key be-
cause Key had not returned Tramelās calls for help to find his
brotherās killer. The family members who saw the fight each had
a slightly different account of how it unfolded. But one thing they
all agreed on was that the fight ended with Tramel stabbing Key.
Trial
On August 13, 2012, the State of Florida charged Tramel by
information with aggravated battery with a deadly weapon. He
was arraigned on August 29, 2012, and counsel was appointed. The
case was set for trial on December 10, 2012.
But, near the start of November, Tramelās counsel had to
withdraw and new counsel was appointed to Tramelās case. And
then, on November 30, 2012, the state served additional discovery,
including medical records of the victim and jailhouse call record-
ings of Tramel. On December 7, 2012, Tramelās new counsel
moved to continue the jury trial because of the new discovery and
because depositions had not yet been completed. The state trial
court granted the continuance motion.
The next month, Tramelās counsel filed a notice of expira-
tion of speedy trial under Florida Rule of Criminal Procedure 3.191.
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22-12801 Opinion of the Court 3
But the state trial court struck the notice, finding that Tramel
waived the right to speedy trial when he moved for a continuance.
At the same time, the state amended the information to charge
Tramel with attempted first-degree murder and aggravated battery
with a deadly weapon.
Jury selection began on January 22, 2013. Tramel confirmed
that he wanted to proceed to trial even though all the witnesses
had not yet been deposed by counsel.
On January 23, 2013, Tramel filed a motion to dismiss based
on Floridaās Stand Your Ground statute. After an evidentiary hear-
ing, the state trial court denied the motion.
Finally, on March 14, 2013, Tramel was tried and convicted
of attempted second-degree murder (a lesser-included offense) and
aggravated battery with a deadly weapon. The state trial court sen-
tenced him to eleven years in prison followed by one year of pro-
bation.
Direct Appeal
On direct appeal, Tramel argued āthat the jury instructions
regarding the duty to retreat were fundamentally erroneous.ā The
state appellate court rejected that argument and affirmed based on
State v. Floyd, 186 So. 3d 1013 (Fla. 2016). In Floyd, the Florida Su-
preme Court held that the standard jury instruction for the duty to
retreat correctly stated the law and was not āconfusing, misleading,
USCA11 Case: 22-12801 Document: 36-1 Date Filed: 09/16/2025 Page: 4 of 20
4 Opinion of the Court 22-12801
or contradictory with regard to the duty to retreat where there is a
question of fact as to who was the initial aggressor.ā Id. at 1023.
State Postconviction Motion
After his conviction became final, Tramel moved for post-
conviction relief. Five claims in his motion are relevant here. First,
Tramel claimed that his trial counsel was ineffective for failing to
object to the stateās misconduct and seek Tramelās pretrial dis-
charge based on violations of Tramelās constitutional rights
(ground one). Second, Tramel alleged that his trial counsel was
ineffective for failing to challenge adequately the violation of his
speedy trial rights (ground two). Third, Tramel argued that his trial
counsel was ineffective for failing to investigate witnesses, suppress
evidence, and impeach the stateās witnesses (ground six). Fourth,
Tramel asserted that his trial counsel was ineffective for failing to
object to the amended information on double jeopardy grounds
(ground seven). And fifth, Tramel claimed that his trial counsel
was ineffective for failing to request relevant jury instructions and
object to inapplicable ones (ground nine).
The state postconviction court denied Tramelās motion. As
to ground one, the court read Tramelās motion as alleging trial
counsel was ineffective for failing to object āto his bond; to his not
being charged timely; to the court allowing perjured testimony; to
the sufficiency of the evidence; to his failure to have twelve jurors
and to the state misrepresenting facts in closing.ā Trial counsel was
not ineffective, the state postconviction court concluded, because
āthe record reflect[ed] that at all times pertinent counsel filed the
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22-12801 Opinion of the Court 5
appropriate motion to address these issuesā, and ācounsel did ob-
ject in closing and was overruled.ā
As to ground two, the state postconviction court explained
that, because ācounsel needed more time to depose all the wit-
nesses[,] the trial could not be held within the speedy trial time and
counsel was forced to move for a continuance.ā Even so, ādespite
counsel not having been able to depose some state witnesses,ā
Tramel āwanted to proceed to trial.ā
As to ground six, the state postconviction court found that:
trial counsel ācontacted all his witnessesā; any suppression motion
would have been meritless; Tramel did not allege the names of wit-
nesses trial counsel should have called to testify at trial, the sub-
stance of their testimony, and how the lack of testimony prejudiced
the outcome of the trial; and trial counsel ādid in fact impeachā the
stateās witness. As to ground seven, the state postconviction court
concluded that trial counsel was not ineffective āfor failing to raise
a meritless argument or motion.ā And as to ground nine, the state
postconviction court ruled that trial counsel was not ineffective be-
cause the transcript and record showed that the jury was given the
instruction the evidence supported.
Federal Habeas Petition
Tramel then petitioned the district court for federal habeas
relief under section 2254 and raised the same five grounds. The
district court denied the petition, explaining, as to ground one, that,
āto the extent Tramel argue[d] that the cumulative impact of his
USCA11 Case: 22-12801 Document: 36-1 Date Filed: 09/16/2025 Page: 6 of 20
6 Opinion of the Court 22-12801
trial counselās errors prejudiced him at trial, his claim [was] due to
be deniedā because āall [his] individual claims [were] meritless.ā
As to ground two, the district court ruled that āthe record
support[ed] the postconviction courtās conclusionā because trial
counsel āreceived supplemental discovery from the [s]tate on No-
vember 30th, and he needed to review the discovery and prepare
for its use at trial.ā āIt was . . . not unreasonable for counsel toā
move for a continuance āgiven the significance of the Novem-
ber 30th discovery and his recent appointment to the case at that
time.ā In any event, Tramel was not prejudiced by the continuance
because it āallowed counsel to file a motion to dismiss pursuant to
Stand Your Ground.ā
As to ground six, the district court found that ā[t]he record
demonstrates Tramel insisted on proceeding with a trial despite the
trial court and counsel advising him that the defense had not com-
pleted depositions.ā āIn the months before trial, Tramel prioritized
proceeding with a trial in an expeditious manner over obtaining
additional discovery.ā The record also āreflect[ed] that during trial,
counsel extensively cross-examinedā the stateās witness, and āim-
peached him.ā Trial counsel also objected to the motive testimony
during trial, and was overruled by the state trial court.
As to ground seven, the district court determined that the
ineffectiveness claim was āwithout meritā because ā[c]onvictions
for attempted second-degree murder and aggravated battery with
a deadly weapon do not violate double jeopardy.ā ā[A]ttempted
murder requires proof of an element that aggravated battery with
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22-12801 Opinion of the Court 7
a deadly weapon does not.ā Finally, as to ground nine, the district
court concluded that the jury instructions adequately and correctly
explained the duty to retreat.
The district court denied a certificate of appealability. But
we granted one on five issues:
(1) Whether the district court erred by denying
[g]round [o]ne because none of the alleged errors ren-
dered Tramelās trial āfundamentally unfairā?
(2) Whether the district court erred in denying
[g]round [t]wo by declining to consider each of the
reasons for delay identified by Tramel, and by con-
cluding that Tramel was not prejudiced by any delay
without discussing the effect a delayed trial could
have had on potential defense witnesses?
(3) Whether the district court erred under Clisby v.
Jones, 960 F.2d 925, 936, 938 (11th Cir. 1992) (en banc),
by denying [g]round [s]ix without addressing whether
counsel was ineffective for (1) failing to cross-exam-
ine Angelina Key about discrepancies between her
deposition and trial testimony; and (2) failing to argue
that the state violated Giglio v. United States, 405 U.S.
150, 154ā55 (1972), by putting on perjured testimony;
and (3) failing to address whether counsel effectively
deposed witnesses, including by waiving Tramelās
right to be present?
USCA11 Case: 22-12801 Document: 36-1 Date Filed: 09/16/2025 Page: 8 of 20
8 Opinion of the Court 22-12801
(4) Whether the district court violated Clisby [in
ground seven] by declining to address whether the
state violated the Double Jeopardy Clause by amend-
ing the information to include new charges based on
the same circumstances?
(5) Whether the district court erred in holding that
Tramelās arguments in [g]round [n]ine were fore-
closed by the Florida Supreme Courtās holding in
State v. Floyd, 186 So. 3d 1013 (Fla. 2016)?
STANDARD OF REVIEW
āWe review de novo the district courtās denial of a 28 U.S.C.
[section] 2254 petition.ā Smith v. Commār, Ala. Depāt of Corr., 924 F.3d
1330, 1336 (11th Cir. 2019) (citation omitted). But our review is
governed by the Antiterrorism and Eļ¬ective Death Penalty Act of
1996 (AEDPA). See Mendoza v. Secāy, Fla. Depāt of Corr., 761 F.3d
1213, 1234 (11th Cir. 2014). Under AEDPA, we must aļ¬rm the
state courtās decision unless that decision was: (1) āācontrary to, or
involved an unreasonable application of, clearly established
[f ]ederal law, as determined by the Supreme Court of the United
States,ā or (2) ābased on an unreasonable determination of the
facts in light of the evidence presented in the [s]tate court proceed-
ing.ā Id. at 1235 (quoting 28 U.S.C. Ā§ 2254(d)).
āAn unreasonable application of clearly established federal
law occurs when the state court correctly identiļ¬es the governing
legal principle but unreasonably applies it to the facts of the partic-
ular case.ā Terrell v. GDCP Warden, 744 F.3d 1255, 1261 (11th Cir.
USCA11 Case: 22-12801 Document: 36-1 Date Filed: 09/16/2025 Page: 9 of 20
22-12801 Opinion of the Court 9
2014) (internal quotation marks omitted) (alterations adopted).
āTo meet the āunreasonable applicationā standard, āa prisoner must
show far more than that the state courtās decision was merely
wrong or even clear error.āā Guardado v. Secāy, Fla. Depāt of Corr.,
112 F.4th 958, 983 (11th Cir. 2024) (internal quotation marks and
citations omitted). Instead, āa state prisoner must show that the
state courtās ruling on the claim being presented in federal court
was so lacking in justiļ¬cation that there was an error well under-
stood and comprehended in existing law beyond any possibility for
fairminded disagreement.ā Harrington v. Richter, 562 U.S. 86, 103
(2011) (emphasis added). In making this determination, āwe re-
view the last state-court adjudication on the merits.ā Sears v. War-
den GDCP, 73 F.4th 1269, 1280 (11th Cir. 2023) (internal quotation
marks and citation omitted).
Finally, āwe review de novo the legal question of whether
the district court violated the rule announced in Clisby.ā Dupree v.
Warden, 715 F.3d 1295, 1299ā1300 (11th Cir. 2013).
DISCUSSION
Tramel raises five arguments on appealāone for each
ground. As to ground one, he argues that cumulative trial court
errors deprived him of his Sixth Amendment right to a fair trial. As
to ground two, Tramel contends that trial counsel was ineffective
by failing to challenge the violation of Tramelās right to speedy
trial. As to ground six, Tramel asserts that the district court made
a Clisby error by failing to address whether counsel was ineffective
for errors in the cross-examination and deposition of witnesses. As
USCA11 Case: 22-12801 Document: 36-1 Date Filed: 09/16/2025 Page: 10 of 20
10 Opinion of the Court 22-12801
to ground seven, Tramel maintains that the district court made an-
other Clisby error by failing to address whether the state violated
the Double Jeopardy Clause by amending the information to in-
clude new charges based on the same circumstances. And as to
ground nine, Tramel argues that trial counsel was ineffective when
he failed to ensure that the jury instructions on Floridaās Stand
Your Ground statute, attempted manslaughter, and justifiable
homicide were consistent with the law and evidence at trial.
Ground One
As to ground one, Tramel argues that cumulative trial court
1
errors deprived him of his Sixth Amendment right to a fair trial.
Tramel claims that: (1) the state attempted to suppress the favora-
ble testimony of witness Latoria Beckett; (2) the trial court refused
to allow Tramel to use medical records to refute the stateās claims
regarding Keyās injuries; (3) the trial court was biased against
Tramel and prohibited him from being tried by a twelve-person
jury; and (4) the state engaged in prosecutorial misconduct during
1
We have expressed doubt as to whether a cumulative-error claim is cogniza-
ble for federal habeas relief, but we need not decide the issue today since
Tramelās claim would fail on the merits. See Morris v. Secāy, Depāt of Corr., 677
F.3d 1117, 1132 & n.3 (11th Cir. 2012) (āWe need not determine today
whether, under the current state of Supreme Court precedent, cumulative er-
ror claims reviewed through the lens of AEDPA can ever succeed in showing
that the state courtās decision on the merits was contrary to or an unreasona-
ble application of clearly established law.ā).
USCA11 Case: 22-12801 Document: 36-1 Date Filed: 09/16/2025 Page: 11 of 20
22-12801 Opinion of the Court 11
its closing argument by misrepresenting facts and using rhetoric to
inļ¬ame the jury.
āThe cumulative error doctrine provides that an aggregation
of non-reversible errors (i.e., plain errors failing to necessitate re-
versal and harmless errors) can yield a denial of the constitutional
right to a fair trial, which calls for reversal.ā United States v. Baker,
432 F.3d 1189, 1223 (11th Cir.2005) (internal quotation marks omit-
ted), abrogated on other grounds by Davis v. Washington, 547 U.S. 813
(2006). We address cumulative-error claims āby ļ¬rst considering
the validity of each claim individually, and then examining any er-
rors that we ļ¬nd in the aggregate and in light of the trial as a whole
to determine whether the appellant was aļ¬orded a fundamentally
fair trial.ā Morris, 677 F.3d at 1132 (citation omitted).
First, Tramel did not speciļ¬cally allege that the state at-
tempted to suppress Beckettās testimony in his section 2254 peti-
tion. In fact, his section 2254 petition does not mention Beckett.
So, we do not have to address that part of Tramelās claim. See Mayle
v. Felix, 545 U.S. 644, 655ā56, (2005) (explaining that habeas corpus
pleading requirements are āmore demandingā than ordinary civil
pleading requirements and a petition āmust āspecify all the grounds
for relief available to the petitionerā and āstate the facts supporting
each groundāā (citing Habeas Corpus Rule 2(c))).
Second, Tramel made only a āpassing referenceā to his argu-
ment about the medical records, devoting a single sentence in his
brief to argue that the state trial court āwould not allow [him] to
use the medical records to refute the [s]tateās false claim that the
USCA11 Case: 22-12801 Document: 36-1 Date Filed: 09/16/2025 Page: 12 of 20
12 Opinion of the Court 22-12801
injuries were life-threatening.ā And he did not cite any law or por-
tion of the record to support his argument. So, this part of
Tramelās claim is not properly preserved for our review. See Bates v.
Secāy, Fla. Depāt of Corr., 768 F.3d 1278, 1300 n.10 (11th Cir. 2014)
(āBates did include a single citation to Lockett in his appellate brief,
but that passing reference is not enough to preserve the issue for
appellate review.ā).
Third, Tramel did not argue in his section 2254 petition that
the trial court was biased against him and prohibited him from be-
ing tried by a twelve-person jury. So, similar to the suppressed tes-
timony claim, Tramel did not speciļ¬cally allege this part of his
claim. See Mayle, 545 U.S. at 655ā56. But even if he had, the state
trial courtās decision was not contrary to, or an unreasonable appli-
cation of, federal law because the Supreme Court has held that a
six-person jury is constitutional. See Williams v. Florida, 399 U.S. 78,
103 (1970).
Fourth, Tramel arguably abandoned his prosecutorial mis-
conduct claim as well because he did not identify any allegedly im-
proper comment made by the state. Bates, 768 F.3d at 1300 n.10.
But even if he hadnāt, the state trial courtās decision was not con-
trary to, or an unreasonable application of, federal law because the
closing argument would have had to contain comments that could
be considered as āso infect[ing] the trial with unfairness as to make
the resulting conviction a denial of due process.ā See Reese v. Secāy,
Fla. Depāt of Corr., 675 F.3d 1277, 1291 (11th Cir. 2012) (internal quo-
tation marks and citation omitted). Here, the record does not
USCA11 Case: 22-12801 Document: 36-1 Date Filed: 09/16/2025 Page: 13 of 20
22-12801 Opinion of the Court 13
reļ¬ect that the stateās comments were improper, let alone that they
met the high bar for a due process violation. See id.
Ultimately, there were no errors, much less cumulative er-
rors. āThis Court has made clear that where ā[t]here [is] no error
in any of the [trial] courtās rulings, the argument that cumulative
trial error requires that this Court reverse [the defendantās] convic-
tions is without merit.āā Morris, 677 F.3d at 1132 (quoting United
States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005)) (alterations in
original).
Ground Two
As to ground two, Tramel contends that trial counsel was
ineļ¬ective by failing to challenge the violation of Tramelās right to
speedy trial. And the district court erred in denying his argument
without addressing prejudice.
To establish ineffective assistance of counsel, a defendant
must show that (1) counselās performance was deficient, and
(2) the deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The performance prong āre-
quires showing that counsel made errors so serious that counsel
was not functioning as the ācounselā guaranteed the defendant by
the Sixth Amendment.ā Id. Counselās performance is considered
deficient if it was objectively unreasonable āunder prevailing pro-
fessional norms.ā Id. at 688. The prejudice prong requires a ārea-
sonable probability that, but for counselās unprofessional errors,
the result of the proceeding would have been different.ā Id. at 694.
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14 Opinion of the Court 22-12801
Under Strickland, a defendant must prove both the deļ¬cient
performance and prejudice prongs. Id. at 687. But āthere is no rea-
son for a court deciding an ineļ¬ective assistance claim to approach
the inquiry in the same order or even to address both [prongs] of
the inquiry if the defendant makes an insuļ¬cient showing on one.ā
Id. at 697. Therefore, if the court determines that counsel was not
deļ¬cient, it does not have to discuss whether the defendant was
prejudiced. See id.
Because āthe standards created by Strickland and [section]
2254(d) are both highly deferential, . . . when the two apply in tan-
dem, review is doubly so.ā Richter, 562 U.S. at 105 (internal quota-
tion marks and citations omitted). Thus, ā[t]he question is not
whether a federal court believes the state courtās determination un-
der the Strickland standard was incorrect but whether [that deter-
mination] was unreasonableāa substantially higher threshold.ā
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal quotation
marks omitted). And if there is āany reasonable argument that
counsel satisļ¬ed Stricklandās deferential standard,ā then a federal
court may not disturb a state courtās decision denying the claim.
Richter, 562 U.S. at 105.
In denying his post-conviction claim, the state court ex-
plained:
It [wa]s clear from the record and his motion that
counsel was not prepared for the trial of this magni-
tude within the speedy trial time. Counsel ļ¬led a
[n]otice of [e]xpiration however, as counsel needed
more time to depose all the witnesses the trial could
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22-12801 Opinion of the Court 15
not be held within the speedy trial time and counsel
was forced to move for a continuance.
That decision was not contrary to, or involved the unrea-
sonable application of, clearly established federal law. Under Flor-
ida law, āan attorney may waive speedy trial without consulting
the client and even against the clientās wishes.ā McKenzie v. State,
153 So. 3d 867, 875 (Fla. 2014) (citations omitted). Because trial
counsel was new to the case, the state supplemented its discovery
response with new informationāincluding with more than twenty
hours of jailhouse telephone calls wherein Tramel made āstate-
ments . . . placing himself at [the] scene of [the] offense, arming
himself, admitting use of [a] knife on [the] victim, [and] various at-
tempts to persuade [and] coerceā witnessesāand neither party had
completed depositions, it was not unreasonable for the state post-
conviction court to determine that trial counsel was not deficient
for asking for more time to prepare for trial. And because the state
trial courtās deficiency finding was not unreasonable, there was no
need to discuss the prejudice prong. Strickland, 466 U.S. at 697.
Ground Six
As to ground six, Tramel asserts that the district court made
a Clisby error by failing to address whether counsel was ineffective
for: (1) failing to cross-examine Angelina Key about discrepancies
between her deposition and trial testimony; (2) failing to argue that
the state violated Giglio by putting on perjured testimony; and
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16 Opinion of the Court 22-12801
(3) failing to address whether trial counsel effectively deposed wit-
nesses, including by waiving Tramelās right to be present.
In Clisby, we held that district courts must resolve all claims
for relief that are raised in a section 2254 petition. 960 F.2d at 936.
If a district court fails to consider a claim raised on collateral review,
we will vacate the decision without prejudice and remand to allow
the district court to consider the claim. Id. at 938. That said, peti-
tioners must present their claims in clear, simple language so dis-
trict courts do not misunderstand them. Dupree, 715 F.3d at 1299.
Clisby errors do not occur when a petitioner fails to clearly present
the claim to a district court. Barritt v. Secāy, Fla. Depāt of Corr., 968
F.3d 1246, 1251 (11th Cir. 2020).
Here, the district court did not make a Clisby error. First,
Tramelās federal habeas petition did not claim that trial counsel
failed to cross-examine Angelina Key. Instead, he only referenced
Angelina as one of three witnesses whose testimonyāhad it not
been for trial counselās failure to depose other witnessesāwould
have been called into question by other defense witnesses.
Second, Tramel did not present a Giglio claim in his federal
habeas petition. Tramel only speculated that depositions would
have brought out contradictions between witnesses, but he did not
claim that the state knowingly used perjured testimony. See United
States v. Vallejo, 297 F.3d 1154, 1163-64 (11th Cir. 2002) (For a Giglio
claim, āthe defendant must demonstrate that the prosecutor know-
ingly used perjured testimony, or failed to correct what he
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22-12801 Opinion of the Court 17
subsequently learned was false testimony, and that the falsehood
was material.ā (internal quotation marks omitted)).
Third, Tramelās claim that trial counsel erred by failing to
ensure his presence at deposition was hidden within his general
claim that counsel failed to act reasonably. Because this part of the
claim was not clearly presented, the district court did not commit
a Clisby error when it failed to address it. See Barritt, 968 F.3d at
1251.
Ground Seven
As to ground seven, Tramel maintains that the district court
made a Clisby error by failing to address whether the state violated
the Double Jeopardy Clause by amending the information to in-
clude new charges based on the same circumstances.
The Double Jeopardy Clause of the Fifth Amendment pro-
tects a defendant against successive prosecutions for the same crim-
inal oļ¬ense, providing that no person may ābe twice put in jeop-
ardy of life or limb.ā U.S. Const. amend. V. To decide whether two
oļ¬enses are the same, the Supreme Court established a test in
Blockburger v. United States, which provides that there is no Double
Jeopardy Clause violation when each crime requires proof of an
additional element that the other does not require. See 284 U.S. 299,
304 (1932).
Florida has statutorily adopted the Blockburger test. Fla. Stat.
Ā§ 775.021(4). Further, Florida law provides that ā[t]he intent of the
Legislature is to convict and sentence for each criminal oļ¬ense
committed in the course of one criminal episode or transactionā
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18 Opinion of the Court 22-12801
with an exception being ā[o]ļ¬enses which are degrees of the same
oļ¬ense as provided by statute.ā Fla. Stat. Ā§ 775.021(4)(b)(2). Flor-
ida law also recognizes the merger doctrine which is āa principle of
statutory construction . . . designed to generally prevent the gov-
ernment from charging felony murder when the underlying felony
was assault.ā Raja v. State, 317 So. 3d 139, 146 (Fla. Dist. Ct. App.
2021) (citation omitted).
Here, the district court did not commit a Clisby error be-
cause it properly applied the Blockburger test to Tramelās claim. Cit-
ing to United States v. Davis, 854 F.3d 1276, 1286 (11th Cir. 2017) and
Schirmer v. State, 837 So. 2d 586, 589 (Fla. Dist. Ct. App. 2003), the
district court explained that convictions for attempted second de-
gree murder and aggravated battery with a deadly weapon do not
violate the Double Jeopardy Clause under the Blockburger test.
ā[T]he elements for aggravated battery are: 1) the defendant
committed a battery against a victim, and 2) in committing the bat-
tery, the defendant intentionally or knowingly caused great bodily
harm, permanent disability or permanent disļ¬gurement to the vic-
tim or used a deadly weapon.ā Schirmer, 837 So. 2d at 589.
ā[M]urder entails bodily injuryā but āis not a necessary component
of attempted murder.ā Id. āAnd, attempted second degree murder
requires proof of an act which could have resulted in death-an ele-
ment not required for aggravated battery.ā Id. Because the two
oļ¬enses were separate under Blockburger, the district court did not
have to discuss the degree variance test. And because Tramel was
not convicted of felony murder, the merger doctrine did not apply.
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22-12801 Opinion of the Court 19
Ground Nine
Finally, as to ground nine, Tramel argues that trial counsel
was ineļ¬ective when he failed to ensure that the jury instructions
for the Stand Your Ground defense, attempted manslaughter, and
justiļ¬able homicide, were consistent with the law and evidence at
trial.
ā[A]lthough the issue of ineļ¬ective assistanceāeven when
based on the failure of counsel to raise a state law claimāis one of
constitutional dimension, we must defer to the stateās construction
of its own law when the validity of the claim that [trial] counsel
failed to raise turns on state law.ā Pinkney v. Secāy, Depāt of Corrs.,
876 F.3d 1290, 1295 (11th Cir. 2017) (internal quotation marks and
citation omitted). Where the Florida courts āalready ha[ve] told us
how the issues would have been resolved under Florida state law
had [trial counsel] done what [the petitioner] argues he should have
done . . . federal habeas courts should not second-guess them on
such matters.ā Herring v. Secāy, Dep't of Corrs., 397 F.3d 1338, 1354ā
55 (11th Cir. 2005) (internal quotation marks omitted).
In Floyd, the Florida Supreme Court addressed the question
whether Floridaās jury instructions regarding the justiļ¬able use of
deadly force and the duty to retreat were āconfusing, contradictory,
or misleading.ā Floyd, 186 So. 3d at 1019. The Floyd court ex-
plained that the instructions properly described Floridaās duty to
retreat and the right to stand your ground and use deadly force. Id.
at 1020ā21. The jury instructions, the court concluded, were
USCA11 Case: 22-12801 Document: 36-1 Date Filed: 09/16/2025 Page: 20 of 20
20 Opinion of the Court 22-12801
proper and not confusing because they correctly guided the jury on
the relevant law. Id. at 1022.
The district court did not err in denying Tramelās jury in-
struction claim because it was foreclosed by Floyd as a matter of
state law. Floyd established that Floridaās instructions on the justiļ¬-
able use of deadly force and the duty to retreat were proper and
not confusing or misleading. So, trial counsel could not have been
ineļ¬ective in failing to object to the jury instructions.
CONCLUSION
In short, the district court did not err in denying Tramelās
federal habeas petition. We aļ¬rm.
AFFIRMED.
Case Information
- Court
- 11th Cir.
- Decision Date
- September 16, 2025
- Status
- Precedential