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). He subsequently obtained
counsel and is currently proceeding on a Second Amended
Petition (Doc. 22) that includes a supporting Memorandum of
Law and Fact (Doc. 22-1). Petitioner challenges his 2007
state court (Duval County) judgment of conviction for first
degree murder, for which he is serving life imprisonment.
Respondents filed an Answer (Doc. 28) including exhibits
(Ex.). Petitioner, through counsel, filed a Reply (Doc. 31).
The case is ripe for review.
Governing Legal Principles
Standard of Review
Antiterrorism and 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, 773
(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. [at 102] (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
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th
Cir. 2013) (internal citations modified).
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) (quoting
Richter, 562 U.S. at 98), cert. granted,
137 S.Ct. 1203 (2017). 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). This means that 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
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 v. Hall, 592
F.3d 1144, 1157 (11th Cir. 2010) (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
petitioner may also obtain review of a federal habeas claim
that is procedurally defaulted if he can show that a
fundamental miscarriage of justice has occurred; meaning that
a “constitutional violation has probably resulted in
the conviction of one who is actually innocent[.]”
Murray, 477 U.S. at 496. 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).
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, 687 (1984)).
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
argues that his trial “counsel was ineffective for
failing to investigate and properly argue against the false
evidence in the affidavit for the search warrant and in
conceding to the facts in the search warrant.” Second
Amended Petition at 6 (capitalization and emphasis omitted).
Respondents contend that this claim is procedurally barred,
and this Court agrees.
did not present this claim in his initial Rule 3.850 motion
as an ineffectiveness claim; rather, he presented it as a
trial court error claim. Ex. I at 3-7. Before the state court
ruled on the motion, Petitioner filed a motion for leave to
amend recognizing “that he inadvertently included
claims of trial court errors that are not cognizable under
Rule 3.850” and he requested leave “to add
additional claims related to the ineffectiveness of trial
counsel.” Id. at 24. The court granted his
request, id. at 27-28, and he filed an amended Rule
3.850 motion raising two ineffective assistance of trial
counsel claims-neither of which related to the search warrant
affidavit or the motion to suppress. Id. at 29-33.
After holding an evidentiary hearing on one of
Petitioner's claims, the postconviction court entered an
order acknowledging that the trial court error claim
regarding the search warrant affidavit was not cognizable in
a Rule 3.850 proceeding. Id. at 52-53.
appealed, and raised one issue: “Trial court abused
it's [sic] discretion when it denied Defendant's
motion, and multiple oral request[s ] for appointment of
3.850 counsel.” Ex. J. at 4 (some capitalization
omitted). Petitioner's substantive argument focused on
the postconviction court's denial of his requests for
counsel. See i d. at 4-8. The state responded on the
merits, arguing that the postconviction court did not abuse
its discretion in denying Petitioner's requests for
counsel. Ex. K. The First District Court of Appeal (DCA)
entered a per curiam affirmance without issuing a written
opinion, Ex. L, and subsequently denied Petitioner's
motion for rehearing, Ex. O.
filed a second or successive Rule 3.850 motion, in which he
argued that his counsel was ineffective for conceding at the
suppression hearing that only the killer and law enforcement
would have known that the victim had been covered in
household cleaner. Ex. P. The postconviction court found the
motion to be untimely filed, but then denied the claim on the
merits. Ex. Q.
Even if Defendant filed the instant Motion within two years
of his judgment and sentence becoming final, his claim would
fail. In his original Motion for Postconviction Relief,
Defendant included a ground contending the detective
investigating the crime “entered false statements in
his affidavit for the search warrant.” The Court
dismissed this ground because it was not cognizable in a rule
3.850 motion. Defendant now raises the same issue as one of
ineffective assistance of counsel.
Defendant asserts counsel was ineffective for conceding to an
integral fact at the Motion to Suppress hearing held on June
4, 2007. According to Defendant, the search warrant was based
on a detective's “material false statement”
that the victim's body smelled as if it had been washed
with a household cleaner. Defendant contends the detective
included that fact only to corroborate Linette Resto's
statement to the police and when counsel conceded to that
statement he “disadvocated the Defendant's
cause.” Resto, Defendant's former girlfriend,
testified at trial that Defendant told her he “slit
[the victim's] throat, and that he cut out eyeballs and
that he moved her body and he poured Clorox and Pinesol on
her.” Detective Warkentien testified the fact that the
victim's clothes smelled like Pinesol was not made
At the suppression hearing, counsel told the Court the
affidavit for the search warrant contained information that
Resto “knew . . . the victim was covered with household
cleaner.” Counsel went on to say, “the only fact
that [Resto] reported which was unknown to the general public
was the household cleaner. And I agree with that because we
have not been able to find anybody else who knew
It was reasonable for counsel to concede to the fact that no
one else knew the victim's clothes smelled like household
cleaner when the detectives did not make this fact public and
when Resto expressed knowledge of that fact. See
Strickland, 466 U.S. at 689 (finding strong presumption
counsel's performance “falls within the wide range
of reasonable professional assistance”). Here,
Defendant merely speculates that because “no one who
came in contact with the victim while she was still alive, or
deceased, mentioned that the victim smelled of a cleaning
solution[, ]” then these individuals did not
detect the odor of household cleaner. Defendant's Motion
lacks specific examples, necessary detail, or appropriate
supporting documentation. See id. at 690 (explaining
ineffective assistance claim must identify with specificity
acts or omissions defendant alleges to be outside range of
professional conduct). So, even if the Court finds-and it
does not-counsel acted unreasonably, Defendant does not show
how this prejudiced the outcome of the proceedings.
Id. at 2-4 (footnote and citations omitted). The
court also recognized that counsel argued at the suppression
hearing “that relying on Resto's comment was not
enough to find probable cause, ” because the search
warrant affidavit failed to contain any information
“‘about her credibility, so the credibility
determination would have to be made entirely on'”
the fact regarding the household cleaner. Id. at 3
n.1 (quoting Ex. A at 142). The court's order
specifically advised Petitioner that he had thirty days to
file a notice of appeal, but he did not do so. Id.
Petitioner did not raise this claim in his initial Rule 3.850
proceeding and he did not file an appeal in his second Rule
3.850 proceeding,  he failed to “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.” O'Sullivan, 526
U.S. at 845. He cannot now return to state court and properly
exhaust this claim; thus, the claim is procedurally barred on
federal habeas review.
argues that Martinez v. Ryan, 566 U.S. 1 (2012),
excuses the procedural bar and permits this Court to hear the
claim on the merits.
In Martinez, the U.S. Supreme Court enunciated a
narrow exception to the general rule that the lack of an
attorney or attorney error in state post-conviction
proceedings does not establish cause to excuse the procedural
default of a substantive claim. The Supreme Court, however,
set strict parameters on the application of this exception.
It applies only where (1) state law requires a prisoner to
raise ineffective-trial-counsel claims during an initial
collateral proceeding and precludes those claims during
direct appeal; (2) the prisoner failed to properly raise
ineffective-trial-counsel claims during the initial
collateral proceeding; (3) the prisoner either did not have
counsel or his counsel was ineffective during those initial
state collateral proceedings; and (4) failing to excuse the
prisoner's procedural default would result in the loss of
a “substantial” ineffective-trial-counsel claim.
Lambrix v. Sec'y, Fla. Dep't of Corr., 851
F.3d 1158, 1164 (11th Cir. 2017), cert. denied, 138
S.Ct. 217 (2017) (citations omitted); see Luciano v.
Sec'y, Dep't of Corr., 701 F. App'x 792, 793
(11th Cir. 2017); Sullivan v. Sec'y, Fla. Dep't
of Corr., 837 F.3d 1195, 1201 (11th Cir. 2016). The
Supreme Court expressly limited its holding:
The rule of Coleman governs in all but the limited
circumstances recognized here. The holding in this case does
not concern attorney errors in other kinds of proceedings,
including appeals from initial-review collateral proceedings,
second or successive collateral proceedings, and petitions
for discretionary review in a State's appellate courts.
It does not extend to attorney errors in any proceeding
beyond the first occasion the State allows a prisoner to
raise a claim of ineffective assistance at trial, even though
that initial-review collateral proceeding may be deficient
for other reasons.
Martinez, 566 U.S. at 16.
Martinez applies, the Court finds that Petitioner
has failed to show this is a “substantial” claim,
because as explained below, the claim is without
Second Amended Petition, Petitioner argues that counsel was
ineffective for conceding at the suppression hearing that Ms.
Resto (the witness on whose statement the search warrant
affidavit was based) knew about a fact (the victim was
covered in household cleaner) that only the killer and law
enforcement would have known, and for failing “to argue
that several relevant facts were omitted from the affidavit
and several facts contained within the affidavit were
misstatements.” Second Amended Petition at 9-10.
trial, Petitioner's counsel filed a motion to suppress
the DNA swabs and resulting DNA evidence. Ex. A at 37-39. He
1. On March 23, 2006, Quentin Simmons was transported from
the jail to the Homicide section of the Police Memorial
Building where he was interviewed by Detectives Warkent[ie]n,
Durfee and Dingee about a homicide that had occurred on March
7, 2005. At the time of this interview Mr. Simmons was in
jail on an unrelated charge.
2. During the interview Mr. Simmons denied being involved in
the homicide and denied telling his girlfriend, Linette
Resto, anything about the murder.
3. After talking for a while Mr. Simmons invoked his right to
remain silent and also refused to give his consent to cheek
swabs for DNA.
4. Detective Warkent[ie]n then held Mr. Simmons in the
interview room while he prepared an Affidavit for Search
Warrant and presented the Affidavit to Honorable Hugh A.