United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD District Judge.
Adam Blizzard, an inmate of the Florida penal system,
initiated this action by filing a pro se Petition for Writ of
Habeas Corpus (Petition, Doc. 1) under 28 U.S.C. § 2254.
In the Petition, Blizzard challenges a 2008 state court
(Duval County, Florida) judgment of conviction for first
degree murder. Respondents have submitted a memorandum in
opposition to the Petition. See Respondent's
Answer in Response to Order to Show Cause and Petition for
Writ of Habeas Corpus (Response, Doc. 8) with exhibits (Resp.
Ex.). Blizzard submitted a brief in reply (Reply, Doc. 12),
and a notice of supplemental authority (Doc. 15). This case
is ripe for review.
December 6, 2007, the State of Florida charged Blizzard by
indictment with first degree murder. Resp. Ex. A, Indictment,
at 37-38. Blizzard proceeded to trial, and the jury found him
guilty on May 2, 2008. Resp. Ex. A at 124. Blizzard filed a
motion for new trial, which the court denied. Resp. Ex. A at
125-127. The court sentenced Blizzard to life imprisonment
without the possibility of parole. Resp. Ex. A at 153-58.
the benefit of counsel, Blizzard appealed his conviction to
the First District Court of Appeal. Resp. Ex. J. The State
filed an answer brief (Resp. Ex. K), and Blizzard filed a
reply brief. Resp. Ex. L. On November 20, 2009, the First
District Court of Appeal affirmed Blizzard's conviction
and sentence per curiam without issuing a written opinion.
Blizzard v. State, 22 So.3d 540 (Fla. 1st DCA 2009)
(table); Resp. Ex. M. The mandate issued on December 8, 2009.
Resp. Ex. N.
later filed a pro se petition for writ of habeas corpus in
the First District Court of Appeal (Resp. Ex. O), which the
court construed as a petition alleging ineffective assistance
of appellate counsel pursuant to Florida Rule of Appellate
Procedure 9.141. Resp. Ex. P. The First District Court of
Appeal issued a per curiam opinion expressly denying the
petition on the merits. Blizzard v. State, 44 So.3d
601 (Fla. 1st DCA 2010); Resp. Ex. Q. Blizzard filed a motion
for extension of time to file a motion for rehearing or
rehearing en banc, which the appellate court
denied. Resp. Exs. R, S.
One-Year Limitations Period
Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d).
habeas corpus proceeding, the burden is on the petitioner to
establish the need for a federal evidentiary hearing. See
Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d
1057, 1060 (11th Cir. 2011). “In deciding whether to
grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the
petition's factual allegations, which, if true, would
entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007)
(citation omitted); Jones v. Sec'y, Fla. Dep't of
Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016).
“It follows that if the record refutes the
applicant's factual allegations or otherwise precludes
habeas relief, a district court is not required to hold an
evidentiary hearing.” Schriro, 550 U.S. at
474. The pertinent facts of this case are fully developed in
the record before the Court. Because this Court can
“adequately assess [Blizzard's] claim[s] without
further factual development, ” Turner v.
Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an
evidentiary hearing will not be conducted.
Limits of Habeas Relief, Exhaustion and Procedural
Limits of Habeas Relief
habeas review “is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of
the United States.” Estelle v. McGuire, 502
U.S. 62, 68 (1991) (citations omitted). As such, federal
habeas “does not lie for errors of state law.”
Id. at 67 (quotations omitted). “[I]t is not
the province of a federal habeas court to reexamine
state-court determinations on state-law questions.”
Id. at 67-68. As such, federal courts may not review
claims based exclusively on state law issues even if the
claims are “couched in terms of equal protection and
due process.” Branan v. Booth, 861 F.2d 1507,
1508 (11th Cir. 1988) (quotation omitted).
bringing a § 2254 habeas action in federal court, a
petitioner must exhaust all state court remedies that are
available for challenging his state conviction. See
28 U.S.C. § 2254(b), (c). To exhaust state remedies, the
petitioner must “fairly present[ ]” every issue
raised in his federal petition to the state's highest
court, either on direct appeal or on collateral review.
Castille v. Peoples, 489 U.S. 346, 351 (1989)
(emphasis omitted). As the United States Supreme Court has
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C.
§ 2254(b)(1), thereby giving the State the
“‘“opportunity to pass upon and
correct” alleged violations of its prisoners'
federal rights.'” Duncan v. Henry, 513
U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam) (quoting Picard v. Connor, 404 U.S. 270,
275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). To provide the
State with the necessary “opportunity, ” the
prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court
to the federal nature of the claim. Duncan,
supra, at 365-366, 115 S.Ct. 887; O'Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144
L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004); see
also O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (“[S]tate prisoners must give the state courts
one full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process.”)
fairly present a claim, the petitioner must present it to the
state courts as a federal, constitutional claim rather than
as a matter of state law. See Duncan, 513 U.S. at
365-66; Preston v. Sec'y, Fla. Dep't of
Corr., 785 F.3d 449, 456-59 (11th Cir. 2015). To do so,
a petitioner can include “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, 541 U.S. at 32.
But raising a state law claim that “is merely similar
to the federal habeas claim is insufficient to satisfy the
fairly presented requirement.” Duncan, 513
U.S. at 366. Likewise, merely citing to the federal
constitution is insufficient to exhaust a claim in state
court. Anderson v. Harless, 459 U.S. 4, 7 (1982);
see also McNair v. Campbell, 416 F.3d 1291, 1302
(11th Cir. 2005) (“‘The exhaustion doctrine
requires a habeas applicant to do more than scatter some
makeshift needles in the haystack of the state court
record.'”) (quoting Kelley v. Sec'y for the
Dep't of Corr., 377 F.3d 1317, 1343-44 (11th Cir.
2004)). As explained by the Eleventh Circuit:
To “fairly present” a claim, the petitioner is
not required to cite “book and verse on the federal
constitution.” Picard v. Connor, 404 U.S. 270,
278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (quotation omitted).
Nevertheless, a petitioner does not “fairly
present” a claim to the state court “if that
court must read beyond a petition or a brief (or a similar
document) that does not alert it to the presence of a federal
claim in order to find material, such as a lower court
opinion in the case, that does so.” Baldwin,
541 U.S. at 32, 124 S.Ct. 1347. In other words, “to
exhaust state remedies fully the petitioner must make the
state court aware that the claims asserted present federal
constitutional issues.” Jimenez v. Fla. Dep't
of Corr., 481 F.3d 1337, 1342 (11th Cir. 2007) (quoting
Snowden v. Singletary, 135 F.3d 732, 735 (11th
Cir.1998)) (concluding that the petitioner's claims were
raised where the petitioner had provided enough information
about the claims (and citations to Supreme Court cases) to
notify the state court that the challenges were being made on
both state and federal grounds).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d
1342, 1352 (11th Cir. 2012). “The crux of the
exhaustion requirement is simply that the petitioner must
have put the state court on notice that he intended to raise
a federal claim.” Preston, 785 F.3d at 457
(11th Cir. 2015); see also French v. Warden, Wilcox State
Prison, 790 F.3d 1259, 1270-71 (11th Cir. 2015),
cert. denied, 136 S.Ct. 815 (2016).
Procedural Default and Exceptions
‘the petitioner fails to raise the [federal] claim in
state court and it is clear from state law that any future
attempts at exhaustion would be futile, ” a procedural
default occurs. Owen v. Sec'y, Dep't of
Corr., 568 F.3d 894, 908 n.9 (11th Cir. 2009) (quotation
omitted); see also Smith v. Jones, 256 F.3d 1135,
1138 (11th Cir. 2001) (“The teeth of the exhaustion
requirement comes from its handmaiden, the procedural default
doctrine.”). In such circumstances, federal habeas
review of the claim is typically precluded. Pope v.
Sec'y for Dep't of Corr., 680 F.3d 1271, 1284
(11th Cir. 2012); Smith, 256 F.3d at 1138.
Nevertheless, a federal court may still consider the claim if
a state habeas petitioner can show either (1) cause for and
actual prejudice from the default; or (2) a fundamental
miscarriage of justice. See Coleman v. Thompson, 501
U.S. 722, 750 (1991); Ward v. Hall, 592 F.3d 1144,
1157 (11th Cir. 2010).
cause for a procedural default, “the petitioner must
demonstrate ‘some objective factor external to the
defense' that impeded his effort to raise the claim
properly in state court.” Ward, 592 F.3d at
1157 (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986)). “[T]o show prejudice, a petitioner must
demonstrate that ‘the errors at trial actually and
substantially disadvantaged his defense so that he was denied
fundamental fairness.'” Id. (quoting
McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir.
1992) (per curiam)).
claim for ineffective assistance of counsel, if both
exhausted and not procedurally defaulted, may constitute
cause.” Henry v. Warden, Ga. Diag. Prison, 750
F.2d 11226, 1230 (11th Cir. 2014); see also Murray v.
Carrier, 477 U.S. 478, 488 (1986); Philmore v.
McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (citing
Edwards v. Carpenter, 529 U.S. 446, 451 (2000))
(“An attorney's constitutional ineffectiveness in
failing to preserve a claim for review in state court may
constitute ‘cause' to excuse a procedural
default.”). But the petitioner must first present his
ineffective assistance claim to the state courts as an
independent claim before he may use it to establish cause to
excuse the procedural default of another claim.
Carrier, 477 U.S. at 488; see also Henderson v.
Campbell, 353 F.3d 880, 896 n.22 (11th Cir. 2003). If
the secondary ineffective assistance claim is itself
procedurally defaulted, the “procedurally defaulted
ineffective assistance of counsel claim can serve as cause to
excuse the procedural default of another habeas claim only if
the habeas petitioner can satisfy the ‘cause and
prejudice' standard with respect to the ineffective
assistance claim itself.” Henderson, 353 F.3d
at 897 (citing Edwards, 529 U.S. at 446 and
Carrier, 477 U.S. at 478).
absence of a showing of cause and prejudice, a petitioner may
obtain consideration on the merits of a procedurally
defaulted claim if he can establish that a failure to
consider the claim will result in a fundamental miscarriage
of justice. Coleman, 501 U.S. at 724. This exception
has been described as “exceedingly narrow in scope as
it concerns a petitioner's ‘actual' innocence
rather than his ‘legal' innocence.”
Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.
2001). “To meet this standard, a petitioner must
‘show that it is more likely than not that no
reasonable juror would have convicted him' of the
underlying offense.” Id. (quoting Schlup
v. Delo, 513 U.S. 298, 327 (1995)), cert.
denied, 535 U.S. 926 (2002)). Additionally,
“'[t]o be credible, ' a claim of actual
innocence must be based on reliable evidence not presented at
trial.” Calderon v. Thompson, 523 U.S. 538,
559 (1998) (quoting Schlup, 513 U.S. at 324). With
the rarity of such evidence, in most cases, allegations of
actual innocence are ultimately summarily rejected.
Schlup, 513 U.S. at 324.
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). “‘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, 565 U.S. 34, 38 (2011)). As such, federal habeas
review of final state court decisions is “'greatly
circumscribed' and ‘highly deferential.'”
Id. (quoting Hill v. Humphrey, 662 F.3d
1335, 1343 (11th Cir. 2011)).
first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the claim
on the merits. See Wilson v. Warden, Ga. Diagnostic
Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc),
cert. granted, Wilson v. Sellers, 137 S.Ct.
1203 (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.”
Harrington v. Richter, 562 U.S. 86, 99 (2011);
see also Johnson v. Williams, 568 U.S. 289, --, 133
S.Ct. 1088, 1096 (2013). Thus, the state court need not issue an
opinion explaining its rationale in order for the state
court's decision to qualify as an adjudication on the
merits. See Richter, 562 U.S. at 100; Wright v.
Sec'y for the Dep't of Corr., 278 F.3d 1245,
1255 (11th Cir. 2002).
claim was “adjudicated on the merits” in state
court, § 2254(d) bars relitigation of the claim, unless
the state court's decision (1) “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States, ” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding.” 28 U.S.C. §
2254(d); Richter, 562 U.S. at 98. As the Eleventh
Circuit has explained:
First, § 2254(d)(1) provides for federal review for
claims of state courts' erroneous legal conclusions. As
explained by the Supreme Court in Williams v.
Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000), § 2254(d)(1) consists of two distinct clauses: a
“contrary to” clause and an “unreasonable
application” clause. The “contrary to”
clause allows for relief only “if the state court
arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a
set of materially indistinguishable facts.”
Id. at 413, 120 S.Ct. at 1523 (plurality opinion).
The “unreasonable application” clause allows for
relief only “if the state court identifies the correct
governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Id.
Second, § 2254(d)(2) provides for federal review for
claims of state courts' erroneous factual determinations.
Section 2254(d)(2) allows federal courts to grant relief only
if the state court's denial of the petitioner's claim
“was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2). The Supreme
Court has not yet defined § 2254(d)(2)'s
“precise relationship” to § 2254(e)(1),
which imposes a burden on the petitioner to rebut the state
court's factual findings “by clear and convincing
evidence.” See Burt v. Titlow, 571 U.S. ___,
___, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord
Brumfield v. Cain, 576 U.S. ___, ___, 135 S.Ct. 2269,
2282, 192 L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court
factual determination is not unreasonable merely because the
federal habeas court would have reached a different
conclusion in the first instance.'” Titlow,
571 U.S. at ___, 134 S.Ct. at 15 (quoting Wood v.
Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 849, 175
L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir.
2016); see also Daniel v. Comm'r, Ala. Dep't of
Corr., 822 F.3d 1248, 1259 (11th Cir. 2016). Also,
deferential review under § 2254(d) generally is limited
to the record that was before the state court that
adjudicated the claim on the merits. See Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (regarding §
2254(d)(1)); Landers v. Warden, Att'y Gen. of
Ala., 776 F.3d 1288, 1295 (11th Cir. 2015) (regarding
the state court's 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). Thus,
“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. Wilson,
834 F.3d at 1239; see also Butts v. GDCP
Warden, 850 F.3d 1201, 1204 (11th Cir. 2017). However,
in Wilson, the en banc Eleventh Circuit stated that
the federal habeas court is not limited to assessing the
reasoning of the lower court. 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).
Id. at 1238; see also Williams, 133 S.Ct.
at 1101 (Scalia, J., concurring).
“AEDPA erects a formidable barrier to federal habeas
relief for prisoners whose claims have been adjudicated in
state court.” Titlow, 134 S.Ct. at 16 (2013).
“Federal courts may grant habeas relief only when a
state court blundered in a manner so ‘well understood
and comprehended in existing law' and ‘was so
lacking in justification' that ‘there is no
possibility fairminded jurists could disagree.'”
Tharpe, 834 F.3d at 1338 (quoting Richter,
562 U.S. at 102-03). “If this standard is difficult to
meet, that is because it was meant to be.”
Richter, 562 U.S. at 102.
Ineffective Assistance of Appellate Counsel
Sixth Amendment guarantees criminal defendants effective
assistance of counsel. That right is denied when a defense
counsel's performance falls below an objective standard
of reasonableness and thereby prejudices the defense.”
Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per
curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521
(2003), and Strickland v. Washington, 466 U.S. 668,
687 (1984)). This two-part Strickland standard also
governs a claim of ineffective assistance of appellate
counsel. Overstreet v. Warden, 811 F.3d 1283, 1287
(11th Cir. 2016).
considering deficient performance by appellate counsel,
a court must presume counsel's performance was
“within the wide range of reasonable professional
assistance.” Id. at 689, 104 S.Ct. 2052.
Appellate counsel has no duty to raise every non-frivolous
issue and may reasonably weed out weaker (albeit meritorious)
arguments. See Philmore v. McNeil, 575 F.3d 1251,
1264 (11th Cir.2009). “Generally, only when ignored
issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be
overcome.” Smith v. Robbins, 528 U.S. 259,
288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (quoting Gray
v. Greer, 800 F.2d 644, 646 (7th Cir.1986)); see
also Burger v. Kemp, 483 U.S. 776, 784, 107 S.Ct. 3114,
97 L.Ed.2d 638 (1987) (finding no ineffective assistance of
counsel when the failure to raise a particular issue had
“a sound strategic basis”).
Id.; see also Owen v. Sec'y, Dep't of
Corr., 568 F.3d 894, 915 (11th Cir. 2009)
(“failing to raise or adequately pursue [meritless
issues on appeal] cannot constitute ineffective assistance of
satisfy the prejudice prong, a petitioner must show a
reasonable probability that “but for the deficient
performance, the outcome of the appeal would have been
different.” Black v. United States, 373 F.3d
1140, 1142 (11th Cir. 2004); see also Philmore, 575
F.3d at 1264-65 (prejudice results only if “the
neglected claim would have a reasonable probability of
success on appeal”). Also,
[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id., at
694, 104 S.Ct. 2052. It is not enough “to show that the
errors had some conceivable effect on the outcome of the
proceeding.” Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be “so serious as to deprive
the defendant of a fair trial, a trial whose result is
reliable.” Id., at 687, 104 S.Ct. 2052.
Richter, 562 U.S. at 104. As such,
“[a]ppellate counsel might fail to identify a mediocre
or obscure basis for reversal without being ineffective under
Strickland.” Overstreet, 811 F.3d at
1287 (citation omitted).
there is no “iron-clad rule requiring a court to tackle
one prong of the Strickland test before the
other.” Ward, 592 F.3d at 1163. Since both
prongs of the two-part Strickland test must be
satisfied to show a Sixth Amendment violation, “a court
need not address the performance prong if the petitioner
cannot meet the prejudice prong, and vice-versa.”
Id. (citing Holladay v. Haley, 209 F.3d
1243, 1248 (11th Cir. 2000)). As stated in
Strickland: “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed.” 466 U.S. at 697.
“the standard for judging counsel's representation
is a most deferential one.” Richter, 562 U.S.
at 105. “Reviewing courts apply a ‘strong
presumption' that counsel's representation was
‘within the wide range of reasonable professional
assistance.'” Daniel, 822 F.3d at 1262
(quoting Strickland, 466 U.S. at 689). “When
this presumption is combined with § 2254(d), the result
is double deference to the state court ruling on
counsel's performance.” Id. (citing
Richter, 562 U.S. at 105); see also Evans v.
Sec'y, Dep't of Corr., 703 F.3d 1316, 1333-35
(11th Cir. 2013) (en banc) (Jordan, J., concurring);
Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.
question is not whether a federal court believes the state
court's determination under the Strickland
standard was incorrect but whether that determination was
unreasonable - a substantially higher threshold.”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)
(quotation marks omitted). If there is “any reasonable
argument that counsel satisfied Strickland's
deferential standard, ” then a federal court may not
disturb a state-court decision denying the claim.
Richter, 562 U.S. at 105. As such,
“[s]urmounting Strickland's high bar is
never an easy task.” Padilla v. Kentucky, 559
U.S. 356, 371 (2010).
Findings of Fact and Conclusions of Law