United States District Court, N.D. Florida, Gainesville Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING
PETITION FOR WRIT OF HABEAS CORPUS
cause comes on for consideration upon the Magistrate
Judge's Report and Recommendation dated December 26,
2017. (ECF. No. 25). The parties have been furnished a copy
of the Report and Recommendation and have been afforded an
opportunity to file objections pursuant to Title 28, United
States Code, Section 636(b)(1). Petitioner has filed
objections at ECF No. 27. This Court has made a de novo
review based on those objections.
considered the Report and Recommendation, and the timely
filed objection, this Court has determined that the Report
and Recommendation should be adopted. Petitioner asserted
three grounds for habeas corpus relief: (1) the
circumstantial evidence was insufficient to find him guilty
and therefore the trial court erred in denying his motion for
judgment of acquittal; (2) the trial court erred by giving a
jury instruction on “principals;” and (3) trial
counsel was ineffective for failing to inform the court of
his mental health issues.
Court agrees with the Magistrate Judge that Grounds One and
Two can be analyzed together, as Ground One explicitly
concerns the sufficiency of the evidence, and Ground Two - as
the Magistrate Judge found - restates petitioner's
sufficiency-of-the-evidence argument. In short, with both
Grounds One and Two, petitioner failed to exhaust all state
court remedies that are available for challenging his
Court also agrees that Grounds One and Two are both
procedurally defaulted for federal habeas corpus review
because they were not exhausted. Exhaustion requires that
prisoners give the State a “full and fair
opportunity” to resolve a federal constitutional claim
by “invoking one complete round of the State's
established appellate review process.”
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). To properly exhaust a federal claim, a petitioner
must “fairly present” the claim in each
appropriate state court. Baldwin v. Reese, 541 U.S.
27, 29 (2004).
Court finds that petitioner never provided the state with a
“full and fair opportunity” to consider Grounds
One and Two as federal constitutional claims. In
petitioner's motions for post-conviction relief, with
respect to Grounds One and Two, petitioner never cites to any
federal cases, or Constitutional Amendments, and only
mentions “Due Process” and “fair
trial” in passing. ECF 17-3 at 224-28; 265-267.
Additionally, in petitioner's amended motion for
post-conviction relief, he once again only mentions
“Due Process, ” and “fair trial” in
passing, and only in reference to his state law claims.
Id. at 341-43. The mere incantation of
constitutional buzzwords, unaccompanied by any federal
constitutional analysis, does not suffice to carry the burden
of demonstrating fair presentment of a federal claim.
Adelson v. Dipaola, 131 F.3d 259, 263 (1st Cir.
1997). In Preston v. Sec'y, Fla. Dep't of
Corr., 785 F.3d 449, 457 (11th Cir. 2015), the Eleventh
Circuit reviewed a habeas petition wherein the petitioner
asserted that he fairly presented a federal claim in state
court by referencing the Constitution, and using terms such
as “sufficiency of the evidence, ” and “Due
Process, ” in his briefs and motions. The
Preston court opined that referencing a federal
claim does not require the use of “magic words or
talismanic phrases;” however, “simply
referring” to sufficiency of the evidence, and Due
process “is not a sufficient reference to a federal
claim” Id. at 459. Additionally, in Lucas
v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1352
(11th Cir. 2012) the Eleventh Circuit stated that
“referring to a ‘constitutional right of
confrontation of witnesses' is not a sufficient reference
to a federal claim.” Further, the Supreme Court found
in Baldwin, that a state prisoner does not
"fairly present" a claim to a 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 to find material - such as a lower court opinion in the
case - that does so. Baldwin, at 32-33.
Categorically, a petitioner's passing reference to
constitutional buzzwords such as “sufficiency of the
evidence, ” “Due Process, ” and “a
constitutional right” is not a sufficient reference to
a federal claim that would provide the state with a full and
fair opportunity to adjudicate the federal claim. Therefore,
petitioner must “do more than scatter some makeshift
needles in the haystack of the state court record” to
fairly present a federal claim. McNair v. Campbell,
416 F.3d 1291, 1297 (11th Cir. 2005) (quotations and
citations omitted). Accordingly, because petitioner failed to
fairly present Grounds One and Two as federal questions,
these claims are not exhausted and are procedurally barred
from habeas corpus review.
even if petitioner had exhausted Grounds One and Two, his
claims would still fail on the merits. The evidence against
the petitioner that could lead a rational trier of fact to
find petitioner guilty includes:
1. One of the suspects fleeing the burglary was wearing a
black flat-billed baseball cap, while the other had on a
yellow jacket or shirt, and a backpack. Officer Sweeting
identified petitioner as the man wearing the black
flat-billed baseball cap.
2. Officers searched a tan Buick not belonging to any
residents. Inside the Buick, officers found a silver cell
phone; the “wallpaper” of the cell phone was
identified by Officers as the man in the baseball cap
3. The owner of the tan Buick was Tashieka Holmes
4. Tyrese Kirksy was apprehended, and identified as the
suspect in the yellow shirt with the backpack.
5. Officers recovered the black baseball cap, the yellow
long-sleeved shirt, and the backpack with stolen items.
6. Petitioner was taken into custody and searched. In
petitioner's possession was a set of Buick car keys - for
the tan Buick.
7. Petitioner admitted to being with Tyrese Kirksy in the
complex, and in the Buick.
8. Tyrese Kirksy's fingerprints were discovered on the
cell phone's interior screen. Petitioner's
fingerprints were discovered: on the cell phone's
battery; the exterior driver's door ...