United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN United States District Judge
an inmate of the Florida penal system, initiated this case by
filing a pro se Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 (Doc. 1) (Petition).He challenges his
2010 state court (Duval County) judgment of conviction for
one count of armed trespass (a lesser-included offense); two
counts of assault (a lesser-included offense); one count of
possession of a firearm by a convicted felon (with a specific
jury finding that Petitioner actually possessed a firearm
during the commission of the offense); and three counts of
aggravated assault (each with a specific jury finding that
Petitioner actually possessed a firearm during the commission
of the offense). Petitioner was sentenced to a total term
of imprisonment of 20 years. Respondents filed a Response
(Doc. 9) (Response),  and Petitioner filed a Reply (Doc. 12)
(Reply). The case is ripe for review.
Governing Legal Principles
Standard of Review Under the Antiterrorism Effective Death
Penalty Act (AEDPA)
governs a state prisoner's federal habeas corpus
petition. See Ledford v. Warden, Ga. Diagnostic &
Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016), cert. denied, 137 S.Ct. 1432 (2017).
“‘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)).
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. 2011).
AEDPA “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 (2010)
(internal quotation marks omitted). “A state
court's determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court's
decision.” Harrington v. Richter, 562 U.S. 86,
101 (2011) (internal quotation marks omitted). “It
bears repeating that even a strong case for relief does not
mean the state court's contrary conclusion was
unreasonable.” Id. (citing Lockyer v.
Andrade, 538 U.S. 63, 75 (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');">540 U.S. 12, 18 (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 (2000) (“[A]n
unreasonable application of federal law is different from an
incorrect application of federal law.”).
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th
federal court reviewing the judgment of a state court must
first identify the last adjudication on the merits. It does
not matter whether that adjudication provided a reasoned
opinion because section 2254(d) ‘refers only to a
decision' and does not ‘requir[e] a statement of
reasons.'” Wilson v. Warden, Ga. Diagnostic
Prison, 834 F.3d 1227, 1235 (11th Cir. 2016), cert.
granted, 137 S.Ct. 1203 (2017), (quoting
Richter, 562 U.S. at 98). 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 (citation omitted). When 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 . . . 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.'” Id.
(quoting Richter, 562 U.S. at 102).
When the reasoning of the state trial court was reasonable,
there is necessarily at least one reasonable basis on which
the state supreme court could have denied relief and our
inquiry ends. In this way, federal courts can use previous
opinions as evidence that the relevant state court decision
under review is reasonable. But the relevant state court
decision for federal habeas review remains the last
adjudication on the merits, and federal courts are not
limited to assessing the reasoning of the lower court.
Id. at 1239.
Exhaustion and Procedural Default
are prerequisites to federal habeas review. Before filing a
habeas petition in federal court, a petitioner must exhaust
all available state court remedies. To exhaust state
remedies, the petitioner must “fairly present”
each issue raised in his federal petition to the state's
highest court. Castille v. Peoples, 489 U.S. 346,
351 (1989) (emphasis omitted). To properly exhaust a claim, a
“state prisoner must give the state courts an
opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition.”
O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); Raleigh v. Sec'y, Fla. Dep't of
Corr., 827 F.3d 938, 956 (11th Cir. 2016), cert.
denied, Raleigh v. Jones, 137 S.Ct. 2160 (2017)
(“The petitioner must have presented the claim in a
manner that affords the State a full and fair opportunity to
address and resolve the claim on the merits.”
(quotations and citation omitted)). It is not
“sufficient merely that the federal habeas petitioner
has been through the state courts, nor is it sufficient that
all the facts necessary to support the claim were before the
state courts or that a somewhat similar state-law claim was
made.” Preston v. Sec'y, Fla. Dep't of
Corr., 785 F.3d 449, 457 (11th Cir. 2015). Rather,
“[t]he 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.”
to exhaust results in a procedural default which raises a
potential bar to federal habeas review. “A state
prisoner may overcome the prohibition on reviewing
procedurally defaulted claims if he can show
‘cause' to excuse his failure to comply with the
state procedural rule and ‘actual prejudice resulting
from the alleged constitutional violation.'”
Davila v. Davis, 137 S.Ct. 2058, 2064-65 (2017)
(citing Wainwright v. Sykes, 433 U.S. 72, 84 (1977);
Coleman v. Thompson, 501 U.S. 722, 750 (1991)). To
show 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)).
petitioner may also obtain review of a federal habeas claim
that is procedurally defaulted if he can show that a
“constitutional violation has probably resulted in the
conviction of one who is actually innocent[.]”
Murray, 477 U.S. at 479-80. Actual innocence means
factual innocence, not legal insufficiency. Bousley v.
United States, 523 U.S. 614, 623 (1998). 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. Schlup v.
Delo, 513 U.S. 298, 327 (1995). “To be credible, a
claim of actual innocence must be based on [new] reliable
evidence not presented at trial.” Calderon v.
Thompson, 523 U.S. 538, 559 (1998) (quoting
Schlup, 513 U.S. at 324).
Standard for Ineffective Assistance of Counsel
Sixth Amendment guarantees criminal defendants the effective
assistance of counsel. That right is denied when a defense
attorney'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); Strickland v. Washington, 466 U.S. 668,
To establish deficient performance, a person challenging a
conviction must show that “counsel's representation
fell below an objective standard of reasonableness.”
[Strickland, ] 466 U.S. at 688. 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. Id. at 689. 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.” Id. at 687.
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.” Id. at 694. It is not enough
“to show that the errors had some conceivable effect on
the outcome of the proceeding.” Id. at 693.
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.
Richter, 562 U.S. at 104; Marshall, 828
F.3d at 1284 (recognizing that to proceed on a claim of
ineffective assistance of trial counsel, “the
petitioner has to show both that his counsel's
performance was deficient and that that deficient performance
was prejudicial- that is, that there is a ‘reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.'” (quoting Strickland, 466 U.S.
at 687, 694)). 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.” Ward v. Hall, 592 F.3d
1144, 1163 (11th Cir. 2010) (citing Holladay v.
Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)).
standards created by Strickland and § 2254(d) are both
highly deferential, and when the two apply in tandem, review
is doubly so.'” Marshall, 828 F.3d at
1285(quoting Overstreet v. Warden, 811 F.3d 1283,
1287 (11th Cir. 2016)).
“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 (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 86.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th
Cir. 2014); see Knowles v. Mirzayance, 556 U.S. 111,