[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 20-14602 ____________________

DEMETRIUS CAREY, Petitioner-Appellant, versus DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:17-cv-62458-DPG ____________________ USCA11 Case: 20-14602 Document: 62-1 Date Filed: 01/17/2023 Page: 2 of 16

2 Opinion of the Court 20-14602

Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, and MARCUS, Circuit Judges. WILLIAM PRYOR, Chief Judge: This appeal from the denial of a petition for a writ of habeas corpus requires us to decide whether trial counsel provided ineffec- tive assistance by requesting that the jury be instructed on lesser included offenses. We hold that counsel did not. And because the petitioner’s claim that insufficient evidence supported his convic- tion was denied by the state courts based on an adequate and inde- pendent state procedural ground, he is also not entitled to relief on that claim. We affirm the denial of the petition. I. BACKGROUND

Elena Carrasco was shot and killed during a robbery in 2005. Fourteen-year-old Demetrius Carey was charged with Carrasco’s murder and with armed robbery. The indictment charged premed- itated murder “and/or” felony murder. The indictment also charged Carey with using a firearm to commit both crimes, and the use of a firearm would reclassify the felonies as higher-degree of- fenses and enhance his sentence. See generally FLA. STAT. § 775.087. The prosecutors’ theory at trial was that Carey commit- ted the robbery and the murder by shooting the victim. Carey de- nied any involvement. During the charging conference, the parties and trial judge discussed jury instructions on lesser offenses at length. They began with the murder charge. At first, defense counsel did not request USCA11 Case: 20-14602 Document: 62-1 Date Filed: 01/17/2023 Page: 3 of 16

20-14602 Opinion of the Court 3

jury instructions on any lesser offenses. But after the prosecutors requested jury instructions on second-degree murder “with a fire- arm” and manslaughter “with a firearm,” defense counsel re- quested instructions on “all” lesser included offenses. Regarding the armed robbery charge, both parties at first did not request in- structions on lesser offenses, but defense counsel later requested jury instructions on the lesser included offenses of robbery with a weapon and robbery. The jury convicted Carey of second-degree murder and rob- bery. The verdict form also included interrogatories about the fire- arm enhancement. The jury had to determine whether Carey “ac- tually possess[ed],” “actually discharge[d],” or “actually inflict[ed] death . . . as a result of discharging” a firearm. The jury answered “no” to all three firearm interrogatories regarding both crimes. Carey moved for a new trial. He argued that because the victim was undisputedly shot, the jury’s finding that Carey did not