United States District Court, M.D. Florida, Jacksonville Division
DALE B. GREEN, Petitioner,
SECRETARY OF THE FLORIDA DEPARTMENT OF CORRECTIONS and FLORIDA ATTORNEY GENERAL, Respondents.
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 challenges his 2009 state
court (Putnam County) judgment of conviction for first degree
arson. He was sentenced to thirty-years imprisonment as a
prison releasee reoffender. Respondents filed an Amended
Response to the Petition (Doc. 8) and exhibits (Doc. 7-1 to
7-20; Ex.). Petitioner filed a Reply (Doc. 10) with exhibits
(Doc. 11) and several supplements (Docs. 13, 15, 16,
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) (“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)), cert.
denied, Raleigh v. Jones, 137 S.Ct. 2160
(2017). 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 may result 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 v. Sec'y,
Fla. Dep't of Corr., 828 F.3d at 1277, 1284 (11th
Cir. 2016) (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 at 1163 (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
refers to ground three of his Rule 3.850 motion, in which he
claimed his trial counsel, John Stephenson, Esquire,
ineffective during jury selection. See Petition at
5-6. Petitioner avers that some of the potential jurors
indicated they knew some of the witnesses, and those
potential jurors “vouched” for the witnesses'
“credibility by saying that they were ‘honest
men, ' ‘good men, ' and anything they say
should be believed.” Ex. M at 5. He acknowledges that
his counsel advised the court of his concerns that the
potential jurors' comments prejudiced the entire panel,
but asserts that his “counsel failed to
contemporaneously object and preserve for appellate review
the trial court's refusal to replace the jurors.”
Id. (capitalization omitted).
jury selection, one of the potential jurors acknowledged that
she knew Detective Michael Lee Knowles and stated, “I
would be more inclined to believe what he was saying. . . . I
know him and he was a good man then”
(referring to about 15 years prior). Doc. 1-2 at 3-4
(emphasis added). Another potential juror indicated that he
knew Lieutenant Mark Lynady. Id. at 4. When asked if
the potential juror's knowledge of the witness would
cause him to give any greater or lesser weight to his
testimony, the potential juror stated: “I would be
inclined to say that he would be telling the truth, you know.
I've known Mark a long time.” Id. A third
potential juror indicated he knew Michael Kelly, but he
confirmed that his knowledge of the witness would not affect
his ability to weigh the testimony. Id. at 4-5. A
sidebar conference was held:
MR. STEPHENSON: Your Honor, Mr. Green is very concerned. He
feels like the whole panel here has been prejudiced. I guess
the auditory remarks about some of the prospective witnesses
in this case, and certainly, Mr. Lynady is a key witness, as
is Detective Kelly. He's just concerned that the jurors
who don't know the people would be influenced to believe
them more based on what was said.
THE DEFENDANT: They would.
MR. STEPHENSON: The comment - - yeah, it's a ...