United States District Court, M.D. Florida, Orlando Division
ANTOON II UNITED STATES DISTRICT JUDGE
cause is before the Court on Petitioner Jason Allen
Tiszai's Petition for Writ of Habeas Corpus (Doc. 1)
filed pursuant to Title 28 United States Code Section 2254.
Respondents filed a response to the Petition and Appendix of
exhibits (Docs. 16, 20) in compliance with this Court's
instructions and with the Rules Governing Section 2254 Cases
in the United States District Courts. Petitioner filed a
reply to the response. (Doc. 23). For the reasons set forth
below, the petition is denied.
13, 2008, Petitioner was charged by Indictment with first
degree murder (Count One), burglary of a dwelling with
assault or battery (Count Two), and grand theft of a motor
vehicle (Count Three). (Doc. 20 Ex. 1 at 6-9). Petitioner was
arraigned on March 6, 2009, and waived any time periods.
(Id. at 11). In April of 2009, the trial court
determined that the effective date for application of the
Interstate Agreement on Detainers was October 30, 2008, and
calculated the expiration of the 180-day period under the IAD
as that day, April 28, 2009. (Id. at 17). Petitioner
filed a notice of expiration of speedy trial on April 29,
2009, which the Court found well-taken, and the trial began
on May 5, 2009. (Doc. 20 Ex. 1 at 38-39, 42, 46). The jury
found Petitioner guilty of first degree murder, burglary of a
dwelling with assault or battery, and grand theft of a motor
vehicle, and Petitioner was sentenced to the following terms:
natural life on Count One, twenty-five years on Count Two
(consecutive to Count One), and five years on Count Three
(concurrent with Count Two). (Doc. 20 Ex. 3 at 2-4, 6-9).
appealed his judgment and sentence, and the Florida Fifth
District Court of Appeal per curiam affirmed. (Doc. 20 Ex. 4
at 2-36, 92). He then filed a motion for rehearing, which was
denied. (Id. at 94-95, 97, 99). While the motion for
rehearing was pending, he petitioned the Florida Supreme
Court for review. (Id. at 101-02). The Florida
Supreme Court dismissed the petition for lack of
jurisdiction. (Id. at 108). He then filed a motion
for postconviction relief, pursuant to Rule 3.850 of the
Florida Rules of Criminal Procedure, which, as amended,
raised fifteen claims. (Doc. 20 Ex. 5 at 2-53). Grounds one
through six and eight through fifteen were denied, and ground
seven was denied after an evidentiary hearing. (Id.
at 76-89; Ex. 6 at 2-28, 30-36). Petitioner subsequently
filed a petition for writ of prohibition, which was denied
(Doc. 20 Ex. 6 at 81-83; Ex. 7 at 2), and, on request, was
permitted a belated appeal of his Rule 3.850 motion. (Doc. 20
Ex. 7 at 4-11, 13). The Florida Fifth District Court of
Appeal per curiam affirmed the trial court's denial of
Petitioner's Rule 3.850 motion. (Doc. 20 Ex. 8 at 61,
then filed the instant Section 2254 petition for writ of
habeas corpus,  alleging the following thirteen claims for
GROUND ONE: "Trial Court erred in denying motion for
judgment of acquittal on the charge of burglary with an
assault or battery and in sentencing him on that charge where
the evidence was insufficient to support a conviction."
(Doc. 1 at 5).
GROUND TWO: "Appellant is entitled to relief where his
failure to comply with the notice requirement of the
Interstate Agreement on Detainers Act (IADA) was the result
of government negligence in failing t[o] inform of his rights
under the Act." (Id. at 7).
GROUND THREE: "Trial Court erred by committing
Fundamental error by instructing the jury to convict
Appellant of a charge neither included in the indictment nor
designated as a lesser included offense to that of
indictment." (Id. at 8).
GROUND FOUR: "Prosecutor committed flagrant misconduct
during his closing arguments with impermissible
arguments." (Id. at 10).
GROUND FIVE: "Counsel was ineffective for failing to
object during prosecutor's highly prejudicial
arguments." (Id. at 12).
GROUND SIX: "Prosecutor, during closing arguments[, ]
committed [i]nexcusable fundamental error by misrepresenting
material evidence and making arguments not based on facts in
evidence or reasonable inferences that can be drawn
therefrom." (Id. at 13).
GROUND SEVEN: "Failure to object to the State's
misrepresentation of material evidence and highly prejudicial
closing arguments, which had been a decisive factor
injury's verdict, constituted [ineffective assistance of
counsel]. "(Id. at 15).
GROUND EIGHT: Trial Counsel was ineffective for her failure
to request a viable self-defense jury instruction and
erroneously advising [Petitioner] to waive such
instruction." (Id. at 16).
GROUND NINE: "Trial Counsel's failure to request an
evidentiary hearing to determine the probative value of fewer
gruesome autopsy photos, where a limited number would have
been sufficient for the state's case." (/<sf. at
GROUND TEN: "Trial Counsel's failure to petition
and/or obtain psychological examination to determine
[Petitioner's] criminal liability at time of crime-when
sanity was an issue presented by the defense- constituted
[ineffective assistance of counsel]." (Id. at
GROUND ELEVEN: "Trial Counsel's failure to object to
the jurors being instructed on Felony murder where it was
excluded-failing to include the essential elements of crime,
statutory language[, ] or citations-from indictment, clearly
constituted [ineffective assistance of counsel]."
(Id. at 20).
GROUND TWELVE: "Trial Court erred instructing jurors on
a charge not included in Defendant's indictment,
therefore constituting a 5th Amendment and 14th Amendment
violation (due process violation)." (Id. at
GROUND THIRTEEN: "[Petitioner's] 14th Amendment 
Right to due process  was violated by being convicted of a
charge not sufficiently proved through the evidence produced
by the State. (Freedom from a wholly arbitrary deprivation of
liberty)." (Id. at 22).
Court will address related grounds together.
Habeas Relief Under the Antiterrorism Effective Death Penalty
standard for habeas relief is clear and unambiguous: relief
cannot be granted with respect to a claim adjudicated on the
merits in a state court unless the adjudication
"resulted in a decision that 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). AEDPA thus
provides two avenues for relief: one based on a determination
that the outcome was itself contrary to clearly established
federal law; the other based on a determination that the
outcome was infected by an unreasonable application of such
law to the facts. As the Supreme Court explained:
Under the "contrary to" clause, a federal court may
grant the writ if the state court arrives at a conclusion
opposite to that reached by this Court on a question of law
or if the state court decides a case differently than this
Court has on a set of materially indistinguishable facts.
Under the "unreasonable application" clause, a
federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from [the
United States Supreme Court's] decisions but unreasonably
applies that principle to the facts of the prisoner's
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
Regardless of the avenue taken, however, a prisoner
"must show that the state court's ruling on the
claim . . . was so lacking in justification that there was an
error well understood and comprehended in existing law beyond
any possibility for fair-minded disagreement."
Harrington v. Richter, 562 U.S. 86, 103 (2011).
Ineffective Assistance of Counsel
standard for relief based on ineffective assistance of
counsel is also clear and unambiguous: a person is entitled
to relief only when counsel's conduct fell below an
objective standard of reasonableness and, in addition, there
is a reasonable probability that the outcome would have been
different if counsel had acted reasonably (i.e., that the
departure from objective reasonableness prejudiced the case
and, by extension, the client). Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). In evaluating
counsel's performance, courts apply a "strong
presumption" that the representation "fell within
the 'wide range' of reasonable professional
assistance." Harrington, 562 U.S. at 104. As
the Eleventh Circuit explained:
[The test for ineffective assistance] has nothing to do with
what the best lawyers would have done. Nor is the test even
what most good lawyers would have done. We ask only whether
some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted at trial. Courts also
should at the start presume effectiveness and should always
avoid second guessing with the benefit of hindsight.
Strickland encourages reviewing courts to allow
lawyers broad discretion to represent their clients by
pursuing their own strategy. We are not interested in grading
lawyers' performances; we are interested in whether the
adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th
Cir. 1992). It is therefore not an understatement to say that
"[s]urmounting Strickland's high bar is
never an easy task." Padilla v. Kentucky, 559
U.S. 356, 371 (2010).
AEDPA's "Unreasonable Application" Standard and
Ineffective Assistance of Counsel Claims
court's application of Strickland to a
post-conviction claim of ineffective assistance of counsel is
subject to review in a habeas proceeding. But establishing
that a state court's application of Strickland
was unreasonable for purposes of AEDPA is especially
difficult. As the Supreme Court explained:
The standards created by Strickland and [Section]
2254(d) are both "highly deferential" and when the
two apply in tandem, review is "doubly so." The
Strickland standard is a general one, so the range
of reasonable applications is substantial. Federal habeas
courts must guard against the danger of equating
unreasonableness under Strickland with
unreasonableness under § 2254(d). When §2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland's
Harrington, 562 U.S. at 105 (emphasis added). More
to the point:
The pivotal question is whether the state court's
application of the Strickland standard was
unreasonable. This is different from asking whether defense
counsel's performance fell below
Strickland's standard. Were that the inquiry,
the analysis would be no different than if, for example, this
Court were adjudicating a Strickland claim on direct
review of a criminal conviction in a United States district
court. Under AEDPA, though, it is a necessary premise that
the two questions are different. For purposes of [Section]
2254(d)(1), "an unreasonable application of federal law
is different from an incorrect application of federal
law." A state court must be granted a deference and
latitude that are not in operation when the case involves
review under the Strickland standard itself.
Id. at 101 (citation omitted).
contends that, in violation of his constitutional right to
due process, the state trial court erred in denying his
motion for judgment of acquittal on the charge of burglary
with assault or battery. (Doc. 1 at 5). Petitioner states
that evidence at trial demonstrated that he rented a room in
the dwelling at issue and was employed by the homeowner, he
had his own key to the dwelling, he had travelled out of
state but was expected to return, the bedroom he rented still
contained his personal property, and there was no forced
entry. (Id.). He also asserts that there was no
evidence of a physical altercation within the dwelling and
that the State failed to prove the essential
elements of the crime. (Id.). Petitioner
argues that "there was no legal eviction notice nor an
injunction between [himself] and the victim. There was no
evidence of forced entry" and the State did not present
"evidence that his permission to remain therein was ever
withdrawn, " that he "remained therein to
attempt... a forcible felony, " that he was asked to
move out, or that he intended to steal the victim's car.
(Doc. 23 at 3).
raised this argument as issue one in his direct appeal (Doc.
20 Ex. 4 at 16-20) and issue eight in his Rule 3.850 motion.
(Doc. 20 Ex. 5 at 31, 36). However, as Respondents contend,
Petitioner did not allege a violation of his constitutional
AEDPA provides, in pertinent part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the
courts of the State; or
(B)(i) there is an absence of available State corrective
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
order to satisfy the exhaustion requirement, a state
petitioner must "fairly presen[t] federal claims to the
state courts in order to give the State the opportunity to
pass upon and correct alleged violations of its
prisoners' federal rights." Duncan v.
Henry, 513 U.S. 364, 365 (1995) (quoting Picard v.
Conner, 404 U.S. 270, 275-76 (1971)). See also
O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)
("[T]he 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."). The
petitioner must apprise the state court of the federal
constitutional issue, not just the underlying facts of the
claim or a similar state law claim. See Henderson v.
Campbell, 353 F.3d 880, 898 n.25 (11th Cir. 2003)
("Both the legal theory and the facts on which the
federal claim rests must be substantially the same for it to
be the substantial equivalent of the properly exhausted
his direct appeal and his Rule 3.850 motion for
post-conviction relief, Petitioner challenged the sufficiency
of the evidence but did not argue that his constitutional
rights were violated in any way; further, he cited only
state, rather than federal, case law. (Doc. 20 Ex. 4 at 16-20;
Doc. 20 Ex. 5 at 31, 36). See Baldwin v. Reese, 541
U.S. 27, 32 (2OO4)("A litigant... can easily indicate
the federal law basis for his claim in a state-court petition
or brief, for example, by citing ... 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.' "). Because nothing in
Petitioner's state court appeal or Rule 3.850 motion
presented the federal nature of his claims to the state
appellate court, Petitioner failed to exhaust Ground One, and
Ground One is denied.
contends that his rights under the Interstate Agreement on
Detainers ["IAD"] were violated, entitling him to
other things, he explains that, while incarcerated to serve a
state prison sentence in Michigan, "Orange County,
Florida[, ] placed a detainer against him for murder."
(Doc. 1 at 7). He "became aware by a prison law clerk
that he could invoke Article 3 of the IAD" and
"followed [Michigan Department of Corrections']
policy and procedure by contacting prison authorities of his
wish to invoke Article 3 ... his efforts were disregarded
with responses instructing him that 'he' could invoke
it himself by contacting the 'Clerk of Court' and/or
the 'Law Enforcement Agency' who lodged the
detainer." (Id.). He then "exercised due
diligence and contacted both the Orange County Sheriffs
Dep[artment] and Orange County Circuit Court Clerk-the latter
responding there was no case pending. Petitioner continued efforts
and eventually caused the courts to respond."
Petitioner sent a letter to the Orange County Sheriff on
October 13, 2008, "asking why a detainer was placed on
him if there were not pending charges against him, per the
response of the court clerk." (Doc. 23 at 5). The Orange
County Sheriff forwarded the letter "to the court clerk,
who then forwarded it to Judge Marc Lubet, who subsequently
forwarded it to the state attorney." (Doc. 23 at 5-6).
Petitioner states that, "[d]uring pretrial hearings[, ]
[he] presented return mail receipts showing that his 180 days
under the IAD Article 3 had expired." (Doc. 1 at 7).
But, his pro se notice of expiration was stricken,
he "argued for dismissal with prejudice-which was denied
on the grounds that [he] never served a copy [on the] State
attorney's office." (Id.).
contends that "the burden of compliance [does not] fall
on [the] prisoner, but is governed by law that prison
officials [from the sending state] are responsible, "
and that the Michigan Department of Corrections'
"failure to comply deprived Petitioner of the securities
of the IAD-Article 3." (Doc. 1 at 7). He raised this
claim as issue three on direct appeal and the state appellate
court affirmed his convictions and sentences per curiam.
(Doc. 20 Ex. 4 at 3, 16, 23-29; Doc. 20 Ex. 4 at 92).
IAD, codified at Section 941.45, Florida Statutes, "is a
compact among 48 states, the District of Columbia, and the
United States. . . . [It] establishes procedures by which one
jurisdiction may obtain temporary custody of a prisoner
incarcerated in another jurisdiction for the purpose of
bringing that prisoner to trial." Cuyler v.
Adams, 449 U.S. 433, 435 n. 1 (1981). "[T]he
Detainer Agreement establishes procedures under which a
prisoner may initiate his transfer to the receiving State and
procedures that ensure protection of the prisoner's
speedy trial rights." Id.
III of the IAD provides, in pertinent part:
Whenever a person has entered upon a term of imprisonment in
a penal or correctional institution of a party state, and
whenever during the continuance of the term of imprisonment
there is pending in any other party state any untried
indictment, information, or complaint on the basis of which a
detainer has been lodged against the prisoner, he or she
shall be brought to trial within 180 days
after the prisoner shall have caused to be delivered to the
prosecuting officer and the appropriate court of the
prosecuting officer's jurisdiction written notice of the
place of his or her imprisonment and the prisoner's
request for a final disposition to be made of the indictment,
information, or complaint[.]
IAD, art. Ill(a) (emphasis added).
initial matter, violations of the IAD are not generally
cognizable on federal habeas proceedings, absent a showing of
prejudice. Seymore v. State of Ala., 846 F.2d 1355,
1359 (11th Cir. 1988). Although the IAD is considered a law
of the United States,
not all violations of a "law[ ] of the United
States" may be asserted in a habeas corpus proceeding. .
. . "the appropriate inquiry [is] whether the claimed
error of law [is] a fundamental defect which inherently
results in a complete miscarriage of justice, and
whether [i]t... present[s] exceptional circumstances where
the need ...