Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cummings v. Secretary, Florida Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

June 5, 2017

BENJAMIN CUMMINGS, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS AND ATTORNEY GENERAL OF THE STATE OF FLORIDA, Respondents.

          ORDER

          BRIAN J. DAVIS United States District Judge

         I. INTRODUCTION

         Petitioner Benjamin Cummings challenges his 2010 Clay County, Florida conviction for second degree murder (count one) and possession of a firearm by a convicted felon (count three). See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1), with exhibits (Pet. Ex.). In the Petition, Petitioner raises thirty grounds for relief. Respondents filed an Answer to Petition for Writ of Habeas Corpus (Response) (Doc. 21), with exhibits (Resp. Ex.). Petitioner then filed a Reply to Respondent's Answer to Petition for Writ of Habeas Corpus (Reply) (Doc. 24). This case is ripe for review. Because the Court can "adequately assess [Petitioner'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.

         II. PROCEDURAL HISTORY

         On July 30, 2009, by information, the State of Florida charged Petitioner with second degree murder of Kenneth William Davis (count one), aggravated assault of Angela Cummings[1] (count two), and possession of a firearm by a convicted felon (count three). Resp. Ex. 4. In July 2010, Petitioner proceeded to trial on counts one and two, Resp. Ex. 13, at the conclusion of which, on July 28, 2010, a jury found him guilty of second degree murder (count one), but not guilty of aggravated assault (count two). Resp. Ex. 15. Immediately after the conclusion of the trial on counts one and two, a trial on count three commenced and concluded, Resp. Ex. 16, with the jury finding Petitioner guilty of possession of a firearm by a convicted felon. Resp. Ex. 17. On August 2, 2010, the state trial court sentenced Petitioner to a term of imprisonment of forty years with a twenty-five year minimum mandatory term of imprisonment on count one, and a concurrent term of imprisonment of fifteen years with a three-year minimum mandatory term of imprisonment on count three. Resp. Exs. 20, 21.

         Petitioner appealed, Resp. Ex. 22, and the First District Court of Appeal (First DCA) per curiam affirmed Petitioner's convictions and sentences without opinion on September 12, 2011. Pet. Ex. D. The First DCA denied Petitioner's motion for written opinion, rehearing, and certification on October 26, 2011, Pet. Ex. F, and the mandate on Petitioner's appeal issued on November 14, 2011. Pet. Ex. E.

         On April 10, 2012[2], Petitioner filed a petition for writ of habeas corpus (State Habeas Petition) alleging ineffective assistance of appellate counsel with the First DCA. Pet. Ex. G. The First DCA per curiam denied the State Habeas Petition "on the merits, " but without an opinion on May 15, 2012. Pet. Ex. H. Thereafter, on May 25, 2012, Petitioner filed an initial motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 with the state trial court, Pet. Ex. I, and then an amended motion for post-conviction relief (Amended 3.850 Motion) on October 26, 2012.[3] Resp. Ex. 24. The state trial court summarily denied the Amended 3.850 Motion, Resp. Ex. 25, on November 14, 2013, and denied a request for rehearing on December 13, 2013. Pet. Ex. O. Petitioner appealed, Pet. Ex. P, and the First DCA per curiam affirmed the denial of the Amended 3.850 Motion without opinion on April 15, 2014. Pet. Ex. V; Cummings v. State, 138 So.3d 441 (Fla. 1st DCA 2011). Petitioner's motion for rehearing was denied on May 16, 2014, and the mandate was issued on June 3, 2014. Pet. Ex. X.

         Prior to the issuance of the mandate, Petitioner filed a petition for writ of certiorari with the Florida Supreme Court seeking review of the First DCA's per curiam decision on appeal from the denial of his Amended 3.850 motion. Pet. Ex. Y. The Florida Supreme Court dismissed the petition for writ of certiorari on June 11, 2014, for lack of jurisdiction. Pet. Ex. Z; Cummings v. State, 145 So.3d 822 (Fla. 1st DCA 2014).

         On July 22, 2014, Petitioner filed this Petition. The Court finds, and the Respondents concede, that this Petition is timely. Response at 7.

         III. STANDARD OF REVIEW

         The 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). "[T]he 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." Greene v. Fisher, 132 S.Ct. 38, 43 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). "AEDPA thus imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010).

Under AEDPA, when the 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). "Under § 2254(d)(1)'s 'contrary to' clause, we grant 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.'" Jones v. GDCP Warden, 753 F.3d 1171, 1182 (11th Cir. 2014) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). "Under § 2254(d)(1)'s 'unreasonable application' clause, we grant 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.'" ]d, (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495).
For § 2254(d), clearly established federal law includes only the holdings of the Supreme Court - not Supreme Court dicta, nor the opinions of this Court. White v. Woodall, __ U.S. __, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014). To clear the § 2254(d) hurdle, "a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). "[A]n 'unreasonable application of [Supreme Court] holdings must be 'objectively unreasonable, ' not merely wrong; even 'clear error' will not suffice." Woodall, 134 S.Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). A state court need not cite or even be aware of Supreme Court cases "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); accord Richter, 131 S.Ct. at 784.

Taylor v. Sec'y, Fla. Dep't of Corn, 760 F.3d 1284, 1293-94 (11th Cir. 2014), cert- denied, 135 S.Ct. 2323(2015).

         IV. EXHAUSTION AND PROCEDURAL DEFAULT

         The AEDPA requires that "a petitioner must exhaust all state court remedies available for challenging his conviction" before he can seek federal habeas corpus relief. Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351 (11th Cir. 2012) (citing 28 U.S.C. § 2254(b), (c)). To exhaust state court remedies, the petitioner must "fairly present" the federal claim to the state court in a manner that allows "the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010) ('[l]n order to exhaust state remedies, a 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."). Additionally, "the petitioner must comply with all 'independent and adequate' state procedures." Powell v. Allen, 602 F.3d 1263, 1269 (11th Cir. 2010).

         If "a petitioner has failed to exhaust his claim by failing to fairly present it to the state courts and the state court remedy is no longer available" or has failed to comply with state procedures, the failure constitutes a procedural default. McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir. 2005); Powell, 602 F.3d at 1269 ("In the process of exhausting a [federal] claim, the petitioner must [also] comply with all 'independent and adequate' state procedures, else the petitioner will have procedurally defaulted on that claim."). Now, the Eleventh Circuit Court of Appeals applies a three-part test to determine

when a state court's procedural ruling constitutes an independent and adequate state rule of decision. First, the last state court rendering a judgment in the case must clearly and expressly state that it is relying on state procedural rules to resolve the federal claim without reaching the merits of that claim. Secondly, the state court's decision must rest solidly on state law grounds, and may not be "intertwined with an interpretation of federal law." Finally, the state procedural rule must be adequate; La, it must not be applied in an arbitrary or unprecedented fashion. The state court's procedural rule cannot be "manifestly unfair" in its treatment of the petitioner's federal constitutional claim to be considered adequate for the purposes of the procedural default doctrine.

Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001) (internal citations omitted).

         Notwithstanding the procedural default, a federal court may still consider a federal claim if the petitioner can show either (1) cause and prejudice from the default; or (2) a fundamental miscarriage of justice. See Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001) ("If the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established."); Alderman v. Zant, 22 F.3d 1541, 1551 (11th Cir. 1994) (quoting Harris v. Reed, 489 U.S. 255, 262 (1989)) ("An adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto, ' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'"). To establish cause for a default, a petitioner "must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To establish prejudice resulting from the default, a petitioner must demonstrate "that there is at least a reasonable probability that the result of the proceeding would have been different." Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003) (citing Wright, 169 F.3d at 703; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002)). In the absence of a showing of cause and prejudice, the petitioner may rely on the fundamental miscarriage of justice exception, by demonstrating that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986).

         V. INEFFECTIVE ASSISTANCE OF COUNSEL

         With regard to a claim of ineffective assistance of counsel, a petitioner "must meet both the deficient performance and prejudice prongs of" Strickland v. Washington, 466 U.S. 668 (1984). Wong v. Belmontes, 558 U.S. 15, 16 (2009).

To establish deficient performance, a person challenging a conviction must show that counsel's representation fell below an objective standard of reasonableness. A court considering a claim of ineffective assistance must apply a strong presumption that counsel's representation was within the wide range of reasonable professional assistance. The challenger's burden is to show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.
With respect to prejudice, a challenger must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. Counsel's errors must be so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Richter, 562 U.S. at 104 (citations and quotations omitted). Because both prongs of the two-part Strickland test must be satisfied to show a violation, "a court need not address the performance prong if the petitioner cannot meet the prejudice prong, and vice-versa." Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010) (citation omitted).

"[T]he standard forjudging counsel's representation is a most deferential one." Richter, - U.S. at -, 131 S.Ct. at 788. But "[establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so." ]d, (citations and quotation marks omitted). "The 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, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (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, - U.S. at -, 131 S.Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v. Mirzayance, 556 U.S. 111, 123(2009).

         VI. FINDINGS OF FACT AND CONCLUSIONS OF LAW

         In grounds one through twenty-one of the Petition, Petitioner raises claims of ineffective assistance of counsel. Petition at 10-24. Petitioner presented these claims in his Amended 3.850 Motion. Resp. Ex. 24. The state trial court, after recognizing the applicable two-pronged Strickland standard summarily denied the Amended 3.850 Motion. Resp. Ex. 25. The First DCA affirmed the denial of the Amended 3.850 Motion without opinion. Pet. Ex. V. Therefore, Petitioner exhausted these claims. Further, the Court concludes that the First DCA adjudicated these claims on the merits, see Richter, 562 U.S. at 99, and therefore, AEDPA deference is warranted in review of these claims. The Court will now address each claim in turn.

         A. Ground One

         Petitioner asserts trial counsel was ineffective for failing to "follow up on pretrial motions and argue them, due in part, because counsel went to trial within fifty six (56) days of being appointed to represent the petitioner in a murder trial." Petition at 10. The pretrial motions Petitioner specifically refers to are the "Motion for Statement of Particulars, " Resp. Ex. 5, filed on August 13, 2009; the "Motion to Compel Response to Discovery, " Resp. Ex. 8, and the "Motion for Continuance, " Resp. Ex. 9, each filed on March, 18, 2010; and the "Motion for Severance of Counts, " Resp. Ex. 11, filed on July 13, 2010. The state trial court denied the claim stating in pertinent part that Petitioner could not demonstrate prejudice under Strickland and "[g]iven the evidence against Defendant, there [was] no reasonable probability that the outcome of the proceedings would have been different if counsel had formally followed up on the above-mentioned motions." Resp. Ex. 25 at 3. The First DCA affirmed the state trial court's denial of this claim.

         Upon thorough review of the record, the Court concludes that the state appellate court's adjudication of the claim was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state trial court proceedings. In fact, the record reveals that the "Motion for Continuance" was granted on April 14, 2010. Resp. Ex. 1. Further, while the record does not reflect a specific ruling made by the state trial court, it is evident that the state trial court implicitly granted the "Motion for Severance of Counts" because Petitioner's trial was bifurcated with count three having been tried separate and apart from counts one and two. See Resp. Exs. 13, 16. Therefore, Petitioner received the outcome he sought from the motions. Moreover, with respect to the "Motion for Statement of Particulars" and "Motion to Compel Response to Discovery, " Petitioner provides only a conclusory allegation that "counsel's failure to do pre-trial follow-up on any and all motions before the court prejudiced the Defendant, and denied him a fair trial, " Petition at 11, yet fails to explain how he was prejudiced. Such conclusory allegation of ineffective assistance of counsel is insufficient to warrant habeas relief. See Jones v. Sec'y, Fl. Dep't of Corn, 834 F.3d 1299, 1318-19 (11th Cir. 2016); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (recognizing that vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim). Petitioner is not entitled to relief on ground one.

         B. Ground Two

         Petitioner asserts that trial counsel was ineffective for failing "to have the Petitioners (sic) truck tested for his own blood trace evidence in the interior of said truck in which the Petitioner left the scene." Petition at 13. Petitioner contends his blood would have corroborated his account that he was grazed by a bullet fired by the victim. The state trial court denied the claim stating, in pertinent part, that

... at trial the State presented the testimony of Ernie Simmons, a Clay County Sheriff's Office Crime Scene Technician. Officer Simmons participated in the forensic investigation of both Defendant's house and truck following the shooting. Officer Simmons first testified that he searched throughout the interior of Defendant's house, where Defendant initially ran after the shooting, but did not find any traces of blood. (Ex. C at 44.) Officer Simmons also searched the interior of Defendant's truck and found no blood inside the vehicle. (Ex. C at 56-57.) Furthermore, the trial testimony of Rodney Padgett, a friend of Defendant, also casts doubt on Defendant's claim that the victim shot and grazed his arm. (Ex. C. at 146-47.) After the shooting, Defendant drove to Mr. Padgett's home and asked Mr. Padgett to drive him to a nearby creek. (Ex. C at 146-47.) Mr. Padgett testified that during his interaction with Defendant, he did not notice any marks, cuts or bruises on Defendant. (Ex. C at 152.) Based on the testimony cited above, the Court finds trial counsel did not perform deficiently with respect to failing to have the truck tested for blood. Furthermore, in light of Officer Simmons' testimony that there was no blood either inside Defendant's house or car, along with Mr. Padgett's testimony that Defendant had no marks or cuts, the Court finds Defendant cannot demonstrate prejudice as a result of counsel's alleged omissions.

Resp. Ex. 25 at 4. The First DCA affirmed the state trial court's denial of this claim.

         Upon thorough review of the record, the Court concludes that the state appellate court's adjudication of the claim was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Even assuming there was testimony that Petitioner's blood was found in the truck, it would not have been a material fact in this case. At most, the testimony would have revealed that Petitioner, at some point in time, was injured when he was either the driver or passenger of the truck. The indication of blood in the truck would not have revealed where Petitioner was injured, how Petitioner was injured, or what injury Petitioner sustained. Further, the Court notes that Petitioner's own testimony fails to even suggest that he was ever shot at or grazed by a bullet. Thus, Petitioner fails to demonstrate that there was a reasonable probability that the outcome of the proceedings would have been different. Petitioner is not entitled to relief on ground two.

         C. Ground Three

         Petitioner asserts that trial counsel was ineffective for failing to subpoena and call as an expert witness, the emergency medical technician (E.M.T.) who treated him at the time of his arrest. Petitioner contends that the E.M.T. would have refuted the "prosecutor's claims that [Petitioner's] injuries were from thorn bushes." Petition at 16. The state trial court denied the claim stating that "Defendant has failed to demonstrate that trial counsel performed deficiently or that he suffered prejudice as a result of counsel's alleged omissions." Resp. Ex. 25 at 5. To reach this conclusion, the state trial court relied on the following testimony from trial: (1) "Deputy Clark indicated that Defendant was found wrapped in the branches of a thorn bush, " (2) "Deputy Clark also opined that the injuries to Defendant's arms were consistent with being scraped by the thorn bushes, " (3) "Officer Simmons testified that there was no blood found either inside Defendant's house or truck, " and (4) "Mr. Padgett testified that he did not observe any cuts or injuries to Defendant prior to dropping him off at the creek where he was later apprehended." Resp. Ex. 25 at 5. The First DCA affirmed the state trial court's denial of this claim.

         "Which witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess." Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). As such, "the decision will be held to have been ineffective assistance only if it was 'so patently unreasonable that no competent attorney would have chosen it.'" Dingle v. Sec'y for Dep't of Corn, 480 F.3d 1092, 1099 (11th Cir. 2007) (quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir.1983)). Here, given there was not even a hint of evidence that the victim possessed a gun or shot a gun, and the fact that Petitioner's own testimony does not place a gun in the victim's hand, Petitioner's conclusory claim that the E.M.T's testimony would have refuted the "prosecutor's claims that [Petitioner's] injuries were from thorn bushes" is speculative. Therefore, if trial counsel chose not to introduce the testimony of the E.M.T., it was not a decision "so patently unreasonable that no competent attorney would have chosen it."

         In light of the evidence presented in the state court proceedings, the Court does not find that the state appellate court's adjudication of this claim was unreasonable. Further, the Court concludes that the state appellate court's adjudication of the claim was neither contrary to clearly established federal law nor did not involve an unreasonable application of clearly established federal law. Therefore, Petitioner is not entitled to relief on ground three.

         D. Ground Four

         Petitioner asserts that trial counsel was ineffective for failing to seek a psychological expert witness to explain "post-traumatic stress" and how it affected Petitioner. Petition at 18. The state trial court denied the claim stating that

While a psychological expert may have been able to provide testimony concerning Defendant's inability to remember the events during a video-taped interview shortly after the incident, the testimony would not have overcome the overwhelming evidence indicating that Defendant shot an unarmed victim. (Ex. C.) Rimmerv. State, 50 So.3d 763, 778 (Fla. 2010). Because there is no reasonable probability that the outcome of the proceeding would have been different if a psychologist had testified about post-traumatic stress as related to Defendant's actions following the shooting, Defendant is not entitled to relief for this claim.

Resp. Ex. 25 at 5-6. The First DCA affirmed the state trial court's denial of this claim.

         Upon due consideration, the Court agrees with the state trial court that Petitioner has failed to demonstrate prejudice. As such, Petitioner has failed to demonstrate that the state appellate court's adjudication of the claim was contrary to, or an unreasonable application of, clearly established federal law, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Petitioner is not entitled to relief on ground four.

         E. Grounds Five and Nine

         In grounds five and nine, Petitioner asserts that trial counsel was ineffective for failing to seek a firearms expert or cross-examine the State's firearms expert witness, Maria Pagan regarding the diameter of the shotgun blast or the spread of the pellets as it related to where the victim was struck. Petitioner alleges such testimonies would have "cast doubt on the Defendant's guilt as to intentionally shooting the victim" and support his claim "that he was not aiming directly at the victim, but over his head as a warning shot." Petition at 22. The state trial court denied ground five stating

. . . Defendant cannot demonstrate prejudice as a result of counsel's alleged omissions. While testimony from another firearms expert or cross-examination of the State's firearms expert could have proved limited testimony in support of Defendant's claim that he did not intentionally shoot the victim, such testimony would not have been beneficial to Defendant's asserted defense at trial. As alleged in grounds two and three, Defendant's primary defense at trial was that his shooting of the victim constituted justifiable use of deadly force. The jury instruction for this defense states that if a defendant was not engaged in illegal activity and was attacked in a place where he had a right to be, he had no duty to retreat. Rather, there was a right to stand his ground and to meet force, including deadly force, if it was reasonable believed to be necessary to prevent great harm or death to himself or another. (Ex. C at 283-86.) By raising this defense, Defendant conceded that he used deadly force on the victim, but only because he reasonable believed it was necessary to prevent death or great bodily harm to himself or another. As such, the Court finds that any argument or testimony in support of Defendant's assertion that he never meant to shoot the victim could have had a negative impact on the jury as to the issue of whether Defendant's use of deadly force was justifiable.

Resp. Ex. 25 at 6-7. The state trial court denied ground nine "for the same reasons articulated in Ground Five" stating "the Court finds that Defendant cannot demonstrate he was prejudiced by counsel's failure to cross-examine Ms. Pagan about pellet spread." Resp. Ex. 25 at 10. The First DCA affirmed the state trial court's denial of these claims.

         The state trial court's application of the Strickland standard was not unreasonable. Intent to kill is not an element of second degree murder or a self-defense claim. See Fla. Std. Jury Instr. 7.4 (Crim.) (2005) ("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."). Therefore, testimony regarding the diameter of the shotgun blast or the spread of the pellets was neither material to the case nor obviously advantageous to Petitioner's self-defense theory.

         Accordingly, upon thorough review of the record, the Court concludes that the state appellate court's adjudication of the claim was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.