USCA11 Case: 21-11000 Date Filed: 10/31/2022 Page: 1 of 9

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-11000 Non-Argument Calendar ____________________

SCOTT L. HUSS, Petitioner-Appellant, versus SECRETARY, FLORIDA 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. 2:18-cv-00241-JLB-NPM ____________________ USCA11 Case: 21-11000 Date Filed: 10/31/2022 Page: 2 of 9

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Before JILL PRYOR, NEWSOM, and BRANCH, Circuit Judges. PER CURIAM: Scott Huss, who is incarcerated in Florida, appeals the dis- trict court’s denial of his 28 U.S.C. § 2254 petition for a writ of ha- beas corpus. A judge of this Court granted a certificate of appeala- bility on whether trial counsel was ineffective for failing to object to a manslaughter jury instruction. After careful review, we affirm. I. Huss was charged and convicted with the murder of his es- tranged wife. The district court summed up the facts this way: On April 25, 2007, Yana Huss was fatally stabbed multiple times in the neck, chest, and abdo- men at her home in Port Charlotte, Florida. On June 4, 2007, the State of Florida charged [Huss], the vic- tim’s husband, by information with second-degree murder with a knife or similar sharp object. [Huss] pleaded not guilty and proceeded to a five-day jury trial [in 2010].

At trial, the jury heard testimony from wit- nesses—including a witness to the murder—who tes- tified that Yana Huss was afraid of [Huss] and that [Huss] felt she had ruined his life. The medical exam- iner testified that Ms. Huss had numerous defensive wounds to her hands but died from at least eleven USCA11 Case: 21-11000 Date Filed: 10/31/2022 Page: 3 of 9

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stab and slash wounds. [Huss] testified that he did not kill the victim.

Doc. 35 at 1–2 (citations omitted). 1 At the close of trial, the court instructed the jury on second- degree murder and the lesser-included offense of manslaughter. The trial court instructed: In this case, Scott Lee Huss is accused of Second-De- gree Murder. Murder in the Second Degree includes the lesser crime of Manslaughter, both of which are unlawful.

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To prove the crime of Second-Degree Murder, the State must prove the following three elements be- yond a reasonable doubt:

Yana Huss is dead.

The death was caused by the criminal act of Scott Lee Huss; and

There was an unlawful killing of Yana Huss by an act immediately dangerous to another and demonstrat- ing a depraved mind without regard for human life.

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1 “Doc.” numbers refer to the district court’s docket entries. USCA11 Case: 21-11000 Date Filed: 10/31/2022 Page: 4 of 9

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In order to convict of Second-Degree Murder, it is not necessary for the State to prove the defendant had an intent to cause death.

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[I]f you decide that the main accusation [of second- degree murder] has not been proved beyond a rea- sonable doubt, you will next need to decide if the de- fendant is guilty of any lesser-included crimes.

The lesser crime indicated in the definition of Second- Degree Murder is Manslaughter.

I will now instruct you on what constitutes Man- slaughter.

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasona- ble doubt:

Yana Huss is dead; and

Scott Lee Huss’[s] act or acts caused the death of Yana Huss.

However, the defendant cannot be guilty of Man- slaughter if the killing was either justifiable or excus- able homicide.

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If you return a verdict of guilty, it should be for the highest offense which has been proven beyond a rea- sonable doubt.

Doc. 12-3 at 479–84, 492. The jury found Huss guilty of second-degree murder. The trial court sentenced him to life in prison without the possibility of parole. At sentencing, the trial court emphasized that “[t]here was a lot of evidence in this case that would indicate that [Huss] con- templated killing [his] wife for quite a while.” Id. at 554. After filing an unsuccessful direct appeal that did not con- cern the issue we address today, Huss filed a postconviction motion under Rule 3.850 of the Florida Rules of Criminal Procedure. In his motion, as relevant here, Huss argued that his trial counsel was in- effective for failing to object to the trial court’s manslaughter jury instruction. 2 Huss stated that the manslaughter instruction failed to indicate to the jury that the State did not have to prove that Huss intended to cause his wife’s death. Huss argued that when the man- slaughter instruction was considered with the second-degree mur- der instruction, the manslaughter instruction was confusing and misleading and made it appear that manslaughter was a more

2 In a later postconviction proceeding, Huss argued that his appellate counsel was ineffective for failing to raise on direct appeal the allegedly erroneous manslaughter jury instruction. The state courts denied Huss relief on this claim, and he does not have a certificate of appealability to argue the claim here. Thus, we limit our discussion to trial counsel’s failure to object to the instruction. USCA11 Case: 21-11000 Date Filed: 10/31/2022 Page: 6 of 9

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serious offense than second-degree murder. Huss contended that his trial counsel was deficient in failing to object to the instruction and that the deficient performance prejudiced his defense. The state courts rejected Huss’s claim. Huss thereafter filed a § 2254 petition in federal district court, in which he raised the in- effective-assistance-of-counsel claim related to counsel’s failure to object to the manslaughter instruction. The district court rejected his claim and denied him a certificate of appealability. Huss appealed, and a judge on this Court granted him a cer- tificate of appealability on the question of whether his trial counsel was ineffective in failing to object to the trial court’s manslaughter instruction. II. When evaluating a district court’s denial of a § 2254 petition, we review questions of law and mixed questions of law and fact de novo, and findings of fact for clear error. Tanzi v. Sec’y, Fla. Dep’t of Corr., 772 F.3d 644, 651 (11th Cir. 2014). We may affirm the de- nial of habeas relief on any ground supported by the record. Moody v. Holman, 887 F.3d 1281, 1292 (11th Cir. 2018). III. Before we begin, we note an important assumption that sim- plifies our analysis. See Castillo v. Fla. Sec’y of DOC, 722 F.3d 1281, 1283–84 (11th Cir. 2013) (making “simplifying assumptions in favor of the petitioner” to facilitate the Court’s analysis). Although ordi- narily a claim a state court adjudicates on the merits is subject to USCA11 Case: 21-11000 Date Filed: 10/31/2022 Page: 7 of 9

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the deferential standards of the Antiterrorism and Effective Death Penalty Act of 1996, see 28 U.S.C. § 2254, here we assume that Huss’s claim is subject to de novo review. See Berghuis v. Thomp- kins, 560 U.S. 370, 390 (2010) (“Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo review when it is un- clear whether AEDPA deference applies, because a habeas peti- tioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.”). For a claim of ineffective assistance of counsel, a petitioner must demonstrate both that (1) counsel’s performance was defi- cient, meaning that it fell below an objective standard of reasona- bleness, and (2) the petitioner was prejudiced by the deficient per- formance, meaning there was a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been dif- ferent. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). Because a petitioner must satisfy both parts of the Strickland test, we need not address the performance prong if the defendant can- not meet the prejudice prong, or vice versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000). In this case, we need only undertake a limited inquiry: whether Huss has shown a reasonable probability that, had his trial counsel objected to the manslaughter instruction, he would not have been convicted of second-degree murder. Because we con- clude that he has failed to make this showing, we do not address counsel’s alleged deficient performance. See id. USCA11 Case: 21-11000 Date Filed: 10/31/2022 Page: 8 of 9

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On appeal, as in his previous proceedings, Huss contends that had his trial counsel objected to the trial court’s manslaughter jury instruction, the jury would have known that it did not need to find beyond a reasonable doubt that he intended to kill his wife. To show prejudice, though, Huss also must show a reasonable proba- bility that the jury would not have found him guilty of second-de- gree murder. See Strickland, 466 U.S. at 695; see also Doc. 12-3 at 492 (“If you return a verdict of guilty, it should be for the highest offense which has been proven beyond a reasonable doubt.”). Huss does not challenge his second-degree murder conviction—includ- ing the evidence to support it or the instructions the trial court gave about it. The upshot of Huss’s burden of proof on this particular claim is that he is entitled to habeas relief only on a theory of jury nullification or pardon—that is, that had it been instructed cor- rectly on manslaughter, the jury would have pardoned him of the second-degree murder charge (which the evidence supported) and instead convicted him of the lesser included offense. Although it is within a jury’s “‘inherent power’” to pardon a defendant in this way, Knight v. State, 286 So. 3d 147, 152 (Fla. 2019) (quoting Sand- ers v. State, 946 So. 2d 953, 957 (Fla. 2006)), the possibility of a jury pardon cannot form the basis for Strickland prejudice. That is be- cause a jury pardon is “essentially a not guilty verdict rendered con- trary to the law and evidence,” Sanders, 946 So. 2d at 958 (internal quotation marks omitted), and under Strickland “[a]n assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullifica- tion,’ and the like,” Strickland, 466 U.S. at 695 (emphasis added). USCA11 Case: 21-11000 Date Filed: 10/31/2022 Page: 9 of 9

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Strickland requires that “[t]he assessment of prejudice . . . proceed on the assumption that the decisionmaker is reasonably, conscien- tiously, and impartially applying the standards that govern the de- cision. It should not depend on the idiosyncrasies of the particular decisionmaker, such as unusual propensities toward harshness or leniency.” Id. Because Huss cannot demonstrate that he is entitled to relief on his Strickland claim without reliance on a possible jury pardon, he cannot prevail in his appeal. The district court rightly denied him habeas relief. AFFIRMED.