United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS UNITED STATES DISTRICT JUDGE
challenges a 2013 Clay County conviction for aggravated
assault (deadly weapon). See Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody (Petition) (Doc. 1). In the Petition, he raises
thirteen grounds for habeas relief, but he has abandoned the
thirteenth ground, a claim of ineffective assistance of trial
counsel. See Order (Doc. 23). In the twelve
remaining grounds, Petitioner raises the following: (1) a
claim of denial of due process of law asserting his
Miranda warnings were not read to him; (2) a claim
of lack of probable cause to arrest him; (3) a claim of an
equal protection violation based on actual innocence; (4) a
claim of racial discrimination; (5) a claim of denial of due
process of law asserting he acted in self-defense; (6) a
claim of spousal immunity; (7) a claim of a
Brady violation based on the state's alleged
failure to disclose Petitioner's ripped shirt and
scratches; (8) a claim of denial of due process of law based
on the state's constructive amendment of the information
by stating that Petitioner could be found guilty of the
lesser included offense of improper exhibition of a firearm
or dangerous weapon; (9) a claim of an improper jury
instruction requiring unanimity, without providing room for
individual decisions and without giving an Allen charge; (10)
a claim of prosecutorial misconduct; (11) a claim of judicial
misconduct; and (12) a claim of altered transcripts.
filed an Answer in Response to Order to Show Cause (Response)
(Doc. 24). In support of their Response, they submitted
Exhibits (Doc. 24). Petitioner filed a Reply to
Respondents' Answer to Order to Show Cause (Reply) (Doc.
25). See Order (Doc. 5). Respondents urge this Court
to deny the Petition. Response at 8-28. The Court will
address the twelve remaining grounds, See Clisby
v. Jones, 960 F.2d 925, 936 (11th Cir. 1992), but no
evidentiary proceedings are required in this Court.
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner's federal petition for habeas
corpus. See 28 U.S.C. § 2254; Ledford v. Warden, Ga.
Diagnostic & Classification Prison, 818
F.3d 600, 642 (11th Cir. 2016), petition for
cert. filed, - U.S. - (U.S. Oct. 14, 2016) (No.
16-6444). "'The purpose of AEDPA is to ensure that
federal habeas relief functions as a guard against extreme
malfunctions in the state criminal justice systems, and not
as a means of error correction.'" Id.
(quoting Greene v. Fisher, 132 S.Ct. 38, 43 (2011)).
Under AEDPA, when a state court has adjudicated the
petitioner's claim on the merits, a federal court may not
grant habeas relief unless 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, " 28 U.S.C. §
2254(d)(1), or "was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding, " id. §
2254(d)(2). A state court's factual findings are presumed
correct unless rebutted by clear and convincing
evidence. Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir.
..."It bears repeating that even a strong case for
relief does not mean the state court's contrary
conclusion was unreasonable." [Harrington v.
Richter, 562 U.S. 86, 101 (2011)] (citing Lockyer v.
Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d
144 (2003)). The Supreme Court has repeatedly instructed
lower federal courts that an unreasonable application of law
requires more than mere error or even clear error.
See, e.g., Mitchell v. Esparza,
540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003);
Lockyer, 538 U.S. at 75 ("The gloss of clear
error fails to give proper deference to state courts by
conflating error (even clear error) with
unreasonableness."); Williams v. Taylor, 529
U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)
("[A]n unreasonable application of federal law is
different from an incorrect application of federal
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th
Cir. 2013), cert. denied, 135 S.Ct. 67
applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its
merits. See Wilson v. Warden, Ga. Diagnostic Prison,
834 F.3d 1227, 1235 (11th Cir. 2016) (en banc),
cert. granted, 2017 WL 737820 (U.S. Feb.
27, 2017); Marshall v. Sec'y, Fla. Dep't of
Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). Regardless
of whether the last state court provided a reasoned opinion,
"it may be presumed that the state court adjudicated the
claim on the merits in the absence of any indication or
state-law procedural principles to the contrary."
Richter, 562 U.S. at 99; see also Johnson v.
Williams, 133 S.Ct. 1088, 1096 (2013).
the last adjudication on the merits is
"'unaccompanied by an explanation, ' a
petitioner's burden under section 2254(d) is to 'show
[ ] there was no reasonable basis for the state court to deny
relief.'" Wilson, 834 F.3d at 1235 (quoting
Richter, 562 U.S. at 98). "[A] habeas court
must determine what arguments or theories supported or, as
here, could have supported, the state court's decision;
and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the]
Court." Richter, 562 U.S. at 102; see also
Wilson, 834 F.3d at 1235; Marshall, 828 F.3d at
1285. To determine which theories could have supported the
state appellate court's decision, the federal habeas
court may look to a state trial court's previous opinion
as one example of a reasonable application of law or
determination of fact; however, the federal habeas court is
not limited to assessing the reasoning of the lower court.
Wilson, 834 F.3d at 1239. As such,
even when the opinion of a lower state court contains flawed
reasoning, [AEDPA] requires that [the federal court] give the
last state court to adjudicate the prisoner's claim on
the merits "the benefit of the doubt, "
Renico [v. Lett, 449 U.S. 766, 733 (2010)]
(quoting [Woodford v. Visciotti, 537 U.S. 19, 24
(2002)]), and presume that it "follow[ed] the law,
" [Woods v. Donald, __ U.S. __, 135 U.S. 1372,
1376 (2015)] (quoting Visciotti, 537 U.S. at 24).
Wilson at 1238; see also Williams, 133
S.Ct. at 1101 (Scalia, J., concurring).
Response at 1-2, Respondents provide a brief procedural
Petitioner was convicted of two offenses in the Florida
Circuit Court for the Fourth Judicial Circuit in Clay
County. (Ex. A.) Petitioner appealed to the First
District, which per curiam affirmed his conviction on May 20,
2014. (Ex. B); Crawford v. State, 139 So.3d 303
(Fla. 1st DCA May 20, 2014). The First District issued its
mandate on June 17, 2014. (Ex. B).
On January 11, 2014, Petitioner filed a state petition for
writ of habeas corpus in the Florida Supreme Court, which
that court transferred to the First District on April 24,
2014, which that court dismissed for failure to comply with
orders of that court on May 29, 2014. (Exs. C, D.)
On September 17, 2014, Petitioner filed a Petition Alleging
Ineffective Assistance of Appellate Counsel in the First
District, which was denied on the merits on October 21, 2014.
(Ex. E); Crawford v. State, - So.3d -, 2014 WL
5335291 (Fla. 1st DCA Oct. 21, 2014).
Petitioner has filed no other requests for post-conviction
relief. (Ex. A.) Petitioner filed a Petition for Writ of
Habeas Corpus on July 17, 2014. (Doc. 1.)
Reply, Petitioner contends that he is actually innocent of
aggravated assault, and his conviction constitutes a
miscarriage of justice. Reply at 1-2.
EXHAUSTION AND PROCEDURAL DEFAULT
are prerequisites to a federal habeas review. Respondents
assert that Petitioner failed to properly exhaust the
remaining twelve grounds. Response at 5-27. In addressing the
question of exhaustion, this Court must ask whether
Petitioner's claim was properly raised in the state court
Before seeking § 2254 habeas relief in federal court, a
petitioner must exhaust all state court remedies available
for challenging his conviction. See 28 U.S.C. §
2254(b), (c). For a federal claim to be exhausted, the
petitioner must have "fairly presented [it] to the state
courts." McNair v. Campbell, 416 F.3d 1291,
1302 (11th Cir. 2005). The Supreme Court has suggested that a
litigant could do so by including in his claim before the
state appellate court "the federal source of law on
which he relies or a case deciding such a claim on federal
grounds, or by simply labeling the claim
'federal.'" Baldwin v. Reese, 541 U.S.
27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). The
Court's guidance in Baldwin "must be
applied with common sense and in light of the purpose
underlying the exhaustion requirement"-namely, giving
the state courts "a meaningful opportunity" to
address the federal claim. McNair, 416 F.3d at 1302.
Thus, a petitioner could not satisfy the exhaustion
requirement merely by presenting the state court with
"all the facts necessary to support the claim, " or
by making a "somewhat similar state-law claim."
Kelley, 377 F.3d at 1343-44. Rather, he must make
his claims in a manner that provides the state courts with
"the opportunity to apply controlling legal principles
to the facts bearing upon (his) [federal] constitutional
claim." Id. at 1344 (quotation omitted).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d
1342, 1351-52 (11th Cir. 2012), cert.
denied, 133 S.Ct. 875 (2013).
urge this Court to find that all twelve grounds are
procedurally defaulted. The Court is mindful that the
doctrine of procedural default requires the following:
Federal habeas courts reviewing the constitutionality of a
state prisoner's conviction and sentence are guided by
rules designed to ensure that state-court judgments are
accorded the finality and respect necessary to preserve the
integrity of legal proceedings within our system of
federalism. These rules include the doctrine of procedural
default, under which a federal court will not review the
merits of claims, including constitutional claims, that a
state court declined to hear because the prisoner failed to
abide by a state procedural rule. See,
e.g., Coleman, supra, at 747-748,
111 S.Ct. 2546; Sykes, supra, at 84-85, 97
S.Ct. 2497. A state court's invocation of a procedural
rule to deny a prisoner's claims precludes federal review
of the claims if, among other requisites, the state
procedural rule is a nonfederal ground adequate to support
the judgment and the rule is firmly established and
consistently followed. See, e.g.,
Walker v. Martin, 562 U.S. __, __, 131 S.Ct. 1120,
1127-1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler,
558 U.S. __, __, 130 S.Ct. 612, 617-618, 175 L.Ed.2d 417
(2009). The doctrine barring procedurally defaulted claims
from being heard is not without exceptions. A prisoner may
obtain federal review of a defaulted claim by showing cause
for the default and prejudice from a violation of federal
law. See Coleman, 501 U.S., at 750, 111 S.Ct. 2546.
Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012).
defaults may be excused under certain circumstances;
"[a] petitioner who fails to exhaust his claim is
procedurally barred from pursuing that claim on habeas review
in federal court unless he shows either cause for and actual
prejudice from the default or a fundamental miscarriage of
justice from applying the default." Lucas, 682
F.3d at 1353 (citing Bailey v. Nagle, 172 F.3d 1299,
1306 (11th Cir. 1999) (per curiam)). The fundamental
miscarriage of justice exception is only available in
extraordinary cases upon a showing of "'actual'
innocence" rather than mere "'legal'
innocence." Johnson v. Alabama, 256 F.3d 1156,
1171 (11th Cir. 2001) (citations omitted), cert.
denied, 535 U.S. 926 (2002).
did not fairly and/or properly present these federal
constitutional claim to the state courts. Any further
attempts to seek post conviction relief in the state courts
on these grounds will be unavailing. As such, he has
procedurally defaulted these claims. Therefore, he must
demonstrate cause and prejudice. First, Petitioner must
demonstrate cause for his default. This cause has to result
from an objective factor external to the defense, and that
factor had to prevent Petitioner from raising his
constitutional claim which cannot be fairly attributable to
his own conduct. Wright v. Hopper, 169 F.3d 695, 706
(11th Cir.), cert. denied, 528 U.S. 934
(1999) (citation omitted). In order for Petitioner to
establish prejudice, he must show that the alleged errors
actually and substantially disadvantaged his defense
resulting in a denial of fundamental fairness. Id.
review, the Court finds that Petitioner has not shown cause
and prejudice. Additionally, he has failed to show that
failure to address these claims on the merits would result in
a fundamental miscarriage of justice. The Court finds this is
not an extraordinary case as Petitioner has not made a
showing of actual innocence rather than mere legal innocence.
one through twelve are unexhausted and procedurally
defaulted. The fundamental miscarriage of justice exception
is inapplicable to the case at bar. Thus, Petitioner is
barred from pursuing grounds one through twelve in federal
court. The Court will, however, address each ground
individually, including the question of exhaustion and
procedural default, and will provide alternative holdings.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
first ground, Petitioner raises a due process claim,
asserting Miranda warnings were not read to him.
Petition at 5. Respondents urge this Court to conclude that
the claim is unexhausted and procedurally defaulted. Response
at 5. They base this assertion on the fact that Petitioner
never filed a pretrial motion to suppress his confession or
admission, nor did he raise the matter on direct appeal.
Id. at 7-8.
in his Reply at 2-3, contends that the First District Court
of Appeal (1st DCA) had the opportunity to address his claims
because the Florida Supreme Court transferred his state
Petition for Writ of Habeas Corpus, Ex. J, to the 1st DCA.
Ex. P. There is a fundamental weakness in Petitioner's
reasoning; the 1st DCA dismissed the petition for
Petitioner's failure to comply with its order. Ex. R.
Thus, even if the merits of the petition could have been
considered by the 1st DCA, they were never considered due to
Petitioner's failure to comply with a court order.
has not shown cause for his default. "Because [the
petitioner] has failed to establish one element of the cause
and prejudice exception, he cannot show the exception
applies. Johnson v. Singletary, 938 F.2d 1166, 1175
(11th Cir. 1991)(citing Engle v. Isaac, 456 U.S.
107, 134 n. 43 (1982)), cert. denied, 506
U.S. 930 (1992). Also, Petitioner has not met the actual
innocence exception, referred to as the fundamental
miscarriage of justice exception. Since he has failed to make
a colorable showing of actual innocence, Crawford v.
Head, 311 F.3d 1288, 1327 (11th Cir. 2002) (citation
omitted), cert. denied, 540 U.S. 956
(2003), the Court will apply the default to ground one.
came to this Court without a final state court ruling on his
claim. Therefore, the claim raised in ground one is
unexhausted and procedurally defaulted. Since Petitioner has
failed to show cause and he has failed to make a colorable
showing of actual innocence, the Court will not address the
merits of ground one. This is not an extraordinary case as
Petitioner has not made a showing of actual innocence rather
than mere legal innocence. Thus, Petitioner is barred from
pursuing this claim in federal court.
the claim has no merit. See Response at 8-10.
recently noted by the Eleventh Circuit,
"Miranda warnings are required only where there has been
such a restriction on a person's freedom as to render him
'in custody.'" Oregon v. Mathiason, 429
U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). To
determine whether someone is "in custody, " we
first look at the "circumstances surrounding the
interrogation." Thompson v. Keohane, 516 U.S.
99, 112, 116 S.Ct. 457, 465, 133 L.Ed.2d 383 (1995).
"Given those circumstances, " we then consider
whether a "reasonable person [would] have felt he or she
was not at liberty to terminate the interrogation and
leave." Id. The "ultimate inquiry is
simply whether there is a formal arrest or restraint on
freedom of movement of the degree associated with a formal
arrest." California v. Beheler, 463 U.S. 1121,
1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (quotation
Cordera v. Sec'y, Fla. Dept. of Corr., 636
F.App'x 552, 555 (11th Cir. 2016).
called the police to his home and the police officer spoke to
him. He was not "in custody." Although Petitioner
makes an unsupported by the record allegation that the police
blocked the street, Petition at 5, Petitioner requested the
police come to his home, and he could have walked away from
the officers, excused himself, or declined to answer any
questions. It is noted that Petitioner did decline to
complete a written statement. He makes no assertion that he
was placed under arrest or threatened with arrest during the
interviews. Since there was no custodial interrogation, there
is no merit to the claim raised in ground one.
second ground, Petitioner contends that he was arrested
without probable cause. Petition at 7. Respondents urge this
Court to find that Petitioner has procedurally defaulted this
ground. Response at 10. The record demonstrates that
Petitioner did not challenge the existence of probable cause
before the trial, or raise the matter on direct appeal. As a
result, the claim is unexhausted and procedurally defaulted.
Petitioner has failed to demonstrate cause and prejudice. The
Court concludes that a fundamental miscarriage of justice
will not result if the Court declines to address this ground.
alternative, the claim has no merit. The victim, Tali
Crawford, as well as her ten-year-old daughter, M.C.,
provided a verbal statement to the police. Ex. F at 1-3.
Additionally, Ms. Crawford provided a sworn written statement
to the police. Id. at 3. "A warrantless arrest
is supported by probable cause if the arresting officer, at
the time of arrest, had reasonable grounds to believe that a
felony was being, or had been, committed and that the person
to be arrested participated in that felony." Jarrell
v. Balkcom, 735 F.2d 1242, 1249 (11th Cir. 1984),
cert. denied, 471 U.S. 1103 (1985). See
Case v. Eslinger, 555 F.3d 1317, 1327 (11th
Cir.2009)("Probable cause to arrest exists when law
enforcement officials have facts and circumstances within
their knowledge sufficient to warrant a reasonable belief
that the suspect had committed or was committing a
crime.") (citation omitted).
import, probable cause does not require overwhelmingly
convincing evidence, but simply requires reasonably
trustworthy information. Id. (citations and
quotations omitted). There was certainly sufficient
information gathered showing a "probability or chance of
criminal activity." Id. (quoting Illinois
v. Gates, 462 U.S. 213, 245 n.13 (1983)). Therefore,
ground two is due to be denied.
and alternatively, this claim has been rendered moot as the
jury found Petitioner guilty of aggravated assault (deadly
weapon). Response at 12. Petitioner is not entitled to habeas
third ground, Petitioner claims actual innocence. Petition at
8. He mentions the Equal Protection Clause of the Fourteenth
Amendment; however, he fails to offer any support for an
equal protection claim. Even if Petitioner had adequately
presented an equal protection claim, he failed to exhaust
such a claim in the state court system. Thus the claim would
be unexhausted and procedurally defaulted. Petitioner has not
shown cause and prejudice or that a fundamental miscarriage
of justice would result.
review, Petitioner's claim of actual innocence "is
itself the constitutional basis of the habeas petition."
Trease v. Sec'y, Dep't of Corr., No.
8:11-cv-233-T-23TBM, 2014 WL 4791996, at *2 (M.D. Fla. Sept.
24, 2014). See Petition at 8; Reply at 2-3. Whether
a claim of actual innocence constitutes a freestanding claim
for habeas corpus relief is a question that remains
unresolved by the United States Supreme Court. See
McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013)
(recognizing that the issue of whether a freestanding claim
of actual innocence presents a claim for habeas relief
remains unresolved). In this Circuit, precedent forbids
granting federal habeas relief for freestanding, noncapital
claims of actual innocence. Rozzelle v. Sec'y, Fla.
Dep't of Corr., 672 F.3d 1000, 1010-11 (11th Cir.)
(per curiam) (citing Herrera v. State, 506 U.S. 390,
400 (1993)), cert. denied, 133 S.Ct. 351
Herrera, 506 U.S. at 400, the Supreme Court noted
that "[c]laims of actual innocence based on newly
discovered evidence have never been held to state a ground
for federal habeas relief absent an independent
constitutional violation occurring in the underlying state
criminal conviction." The Supreme Court explained:
"[t]his rule is grounded in the principle that federal
habeas courts sit to ensure that individuals are not
imprisoned in violation of the Constitution - not to correct
errors of fact." Id. Finally, the Supreme Court
warned: "[f]ew rulings would be more disruptive of our
federal system than to provide for federal habeas review of
freestanding claims of actual innocence." Id.
Petitioner is raising an actual innocence claim as the
constitutional basis for ground three. The Eleventh Circuit,
however, has stated, "[f]or what it is worth, our
precedent forbids granting habeas relief
based upon a claim of actual innocence, anyway, at least in
non-capital cases." Jordan v. Sec'y, Dep't
of Corr., 485 F.3d 1351, 1356 (11th Cir.) (citing
Brownlee v. Haley, 306 F.3d 1043, 1065 (11th Cir.
2002)) (emphasis added), cert. denied, 522
U.S. 979 (2007).
underlying conviction is not a capital case. Therefore, this
Court cannot grant habeas relief on Petitioner's claim of
actual innocence; absent an independent constitutional
violation occurring in the underlying state criminal
proceeding, the claim of actual innocence raised in ground
three does not state a ground for federal habeas relief.
See In re: Davis, 565 F.3d 810, 817 (11th Cir. 2009)
(per curiam) (discussing freestanding actual innocence
claims); Graddy v. Crews, No. 5:13cv317-WS/GRJ, 2014
WL 5341834, at *3 (N.D. Fla. Oct. 20, 2014) ("a
free-standing claim of actual innocense [sic] is not
recognized as a valid claim for habeas relief"). In sum,
it is clear that no federal habeas relief is available for
freestanding, non-capital claims of actual innocence.
Murrah v. McDonough, 256 F.App'x 323, 325 (11th
Cir. 2007) (per curiam) (a certificate of appealability was
granted on the ...