United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS UNITED STATES DISTRICT JUDGE
Donnie Lappale Hughes, in his Petition Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody
(Petition) (Doc. 1), challenges a 2010 Duval County
conviction for dealing in stolen property (count one) and
false verification of ownership on pawnbroker transaction
form (count three). Petitioner raises four grounds in the
Petition. Respondents filed an Answer to Petition for Writ of
Habeas Corpus (Response) (Doc. 14) and a Notice of Filing and
Serving Exhibits (Doc. 15). Petitioner filed a Notice of
Intent Not to File Reply (Doc. 18). See Order (Doc.
CLAIMS OF PETITION
four claims raised in the Petition are: (1) the trial court
erred in instructing the jury that proof of the sale of
stolen property below the fair market value, where there was
no evidence presented of fair market value, gives rise to an
inference the seller knew or should have known the property
was stolen, resulting in a due process violation; (2) the
ineffective assistance of counsel for failure to call two
exculpatory witnesses, (3) the ineffective assistance of
counsel by misadvising Petitioner not to testify at trial,
and (4) the ineffective assistance of counsel for failure to
present a valid defense and misadvising Petitioner to reject
the state's plea offer.
seeks an evidentiary hearing. Petition at 1. It is
Petitioner's burden to establish the need for a federal
evidentiary hearing, and he has not met the burden.
Chavez v. Sec'y, Fla. Dep't of Corr., 647
F.3d 1057, 1060 (11th Cir. 2011), cert.
denied, 565 U.S. 1120 (2012). In this regard, a
district court is not required to hold an evidentiary hearing
if the record refutes the asserted factual allegations or
otherwise precludes habeas relief. Schriro v.
Landrigan, 550 U.S. 465, 474 (2007). After a
comprehensive review of the record before the Court, the
Court finds that the pertinent facts are fully developed in
this record or the record otherwise precludes habeas relief.
Consequently, this Court is able to "adequately assess
[Petitioner's] claim[s] without further factual
development, " Turner v. Crosby, 339 F.3d 1247,
1275 (11th Cir. 2003), cert. denied, 541
U.S. 1034 (2004).
Court will address all four grounds, see Long v. United
States, 626 F.3d 1167, 1169 (11th Cir. 2010) ("The
district court must resolve all claims for relief raised on
collateral review, regardless of whether relief is granted or
denied.") (citing Clisby v. Jones, 960 F.2d
925, 936 (11th Cir. 1992) and Rhode v. United
States, 583 F.3d 1289, 1291 (11th Cir. 2009)), but no
evidentiary proceedings are required in this Court.
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act (AEDPA) governs
a state prisoner's federal petition for habeas corpus.
See 28 U.S.C. § 2254; Ledford v. Warden,
Ga. Diagnostic & Classification Prison, 818 F.3d
600, 642 (11th Cir. 2016), cert. denied,
137 S.Ct. 1432 (2017). "AEDPA limits the scope of
federal habeas review of state court judgments[.]"
Pittman v. Sec'y, Fla. Dep't of Corr., 871
F.3d 1231, 1243 (11th Cir. 2017). This narrow scope of review
under AEDPA provides for habeas relief only if there are
extreme malfunctions, certainly not to be used as a means to
correct state court errors. Ledford, 818 F.3d at 642
(quoting Greene v. Fisher, 132 S.Ct. 38, 43 (2011)).
courts may not grant habeas relief:
on "any claim that was adjudicated on the merits in
State court proceedings unless the adjudication of the
claim" either "(1) 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; or (2) resulted in a decision
that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d). "When
deciding that issue, we review one decision:
'the last state-court adjudication on the
merits.'" Wilson v. Warden, Ga. Diagnostic
Prison, 834 F.3d 1227, 1232 (11th Cir. 2016) (en banc)
(emphasis added) (quoting Greene v. Fisher, 565 U.S.
34, 40, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011)). This narrow
evaluation is highly deferential, for "[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, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664,
124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). We also must presume
that "a determination of a factual issue made by a State
court [is] correct, " and the petitioner "ha[s] the
burden of rebutting the presumption of correctness by clear
and convincing evidence." 28 U.S.C. § 2254(e)(1).
Morrow v. Warden, No. 17-10311, 2018 WL 1474837, at
*5 (11th Cir. Mar. 27, 2018).
standard of proof is demanding, requiring that a claim be
highly probable. Bishop v. Warden, GDCP, 726 F.3d
1243, 1258 (11th Cir. 2013), cert. denied,
135 S.Ct. 67 (2014). Also, the trial court's
determination will not be superseded if reasonable minds
might disagree about the factual finding. Brumfield v.
Cain, 135 S.Ct. 2269, 2277 (2015). Also of note,
"[t]his presumption of correctness applies equally to
factual determinations made by the state trial and appellate
courts." Pope v. Sec'y for Dep't of
Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting
Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)),
cert. denied, 568 U.S. 1233 (2013).
noted above in Morrow, in applying AEDPA deference,
the first step is to identify the last state court decision
that evaluated the claim on its merits. Marshall v.
Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285
(11th Cir. 2016). Once identified, the Court reviews the
state court's decision, "not necessarily its
rationale." Pittman, 871 F.3d at 1244 (quoting
Parker v. Sec'y for Dep't of Corr., 331 F.3d
764, 785 (11th Cir. 2003) (citation omitted)).
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."
Harrington v. Richter, 562 U.S. 86, 99 (2011).
"The presumption may be overcome when there is reason to
think some other explanation for the state court's
decision is more likely." Richter, 562 U.S. at
99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803
the last adjudication on the merits is unaccompanied by an
explanation, the petitioner must demonstrate there was no
reasonable basis for the state court to deny relief.
Id. at 98. "[A] habeas court must determine
what arguments or theories supported or, as here, 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."
Richter, 562 U.S. at 102; Marshall, 828
F.3d at 1285.
the § 2254(d) standard is difficult to meet, the
standard is meant to be difficult. Rimmer v. Sec'y,
Fla. Dep't of Corr., 876 F.3d 1039, 1053 (11th Cir.
2017) (opining that to reach the level of an unreasonable
application of federal law, the ruling must be objectively
unreasonable, not merely wrong or even clear error),
petition for cert. docketed by (U.S. Mar.
9, 2018) (No. 17-8046). This Court recognizes, applying the
AEDPA standard, state court decisions must be given the
benefit of the doubt. Trepal v. Sec'y, Fla. Dep't
of Corr., 684 F.3d 1088, 1107 (11th Cir. 2012)
(quotation and citation omitted), cert.
denied, 568 U.S. 1237 (2013). Thus, in order to
obtain habeas relief, "a state prisoner must show that
the state court's ruling on the claim being presented . .
. was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement."
Richter, 562 U.S. at 103.
procedural history will provide context for the claims. In an
information, Petitioner was charged with dealing in stolen
property, burglary of a structure, and false verification of
ownership on pawnbroker transaction form. Ex. A at 14-15. The
state filed a Notice of Intent to Classify Defendant as an
Habitual Felony Offender. Id. at 16. On July 7,
2010, the trial court conducted a jury trial. Ex. B. The jury
returned a verdict of guilty as two counts one and three, and
not guilty as to count two. Id. at 166-67; Ex. A at
38-40. Petitioner moved for a new trial, Ex. A at 77-78, and
the trial court denied it. Id. at 80.
October 6, 2010, the trial court held a sentencing
proceeding. Id. at 116-37. The court sentenced
Petitioner as a habitual felony offender to thirty years in
prison on count one, concurrent with a ten-year sentence on
count three. Id. at 134-35. The court entered
judgment and sentence on October 6, 2010. Id. at
appealed his conviction. Id. at 106. Through
counsel, Petitioner filed an appeal brief. Ex. C. The state
filed an answer brief. Ex. D. On March 6, 2012, the First
District Court of Appeal (1st DCA) affirmed with a written
opinion. Ex. E. The mandate issued on March 22, 2012. Ex. F.
Petitioner sought discretionary review, Ex. G, but the
Supreme Court of Florida declined to accept jurisdiction and
denied the petition for review. Ex. H.
filed a Motion for Postconviction Relief (Rule 3.850 motion),
pursuant to the mailbox rule, on October 12, 2012. Ex. I. He
filed an Amended Motion for Post-Conviction Relief (amended
Rule 3.850 motion) on November 20, 2013. Ex. J. After being
directed to do so by the trial court, the state filed a
Response to Defendant's Amended Motion for Post
Conviction Relief addressing ground four of the amended
motion (ground eight, as designated by the trial court). Ex.
K. See Ex. M at 80. Petitioner replied. Ex. L.
trial court denied the Rule 3.850 motion and amended Rule
3.850 motion in its Order Denying Defendant's Motion for
Postconviction Relief and Amended Motion for Postconviction
Relief. Ex. M. Petitioner moved for rehearing. Ex. N. The
trial court denied rehearing. Ex. O. Petitioner appealed. Ex.
P. The state filed a notice that it would not file a brief.
Ex. Q. The 1st DCA, on February 18, 2016, per curiam
affirmed. Ex. R. The mandate issued on March 15, 2016. Ex. S.
INEFFECTIVE ASSISTANCE OF COUNSEL
order to prevail on these Sixth Amendment claims, Petitioner
must satisfy the two-pronged test set forth in Strickland
v. Washington, 466 U.S. 668, 688 (1984), requiring that
he show both deficient performance (counsel's
representation fell below an objective standard of
reasonableness) and prejudice (there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different). Recently, the Eleventh Circuit, in Reaves v.
Sec'y, Fla. Dep't of Corr., 872 F.3d 1137, 1148
(11th Cir. 2017) (quoting Strickland, 466 U.S. at
687), instructed: a counsel's performance is deficient
only if counsel's errors are "so serious that
counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." And
importantly, with regard to the establishment of prejudice
requirement, the Eleventh Circuit provided that the
reasonable probability of a different result must be "a
probability sufficient to undermine confidence in the
outcome. Id. (quoting Strickland, 466 U.S.
in order to prevail on a claim of ineffective assistance of
counsel, both parts of the Strickland test must be
satisfied. Bester v. Warden, Att'y Gen. of the State
of Ala., 836 F.3d 1331, 1337 (11th Cir. 2016) (citing
Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.
2000)), cert. denied, 137 S.Ct. 819 (2017).
However, a court need only address one prong, and if it is
found unsatisfied, the court need not address the other
FINDINGS OF FACT AND CONCLUSIONS OF LAW
first ground, Petitioner claims the trial court erred in
instructing the jury that proof of the sale of stolen
property below the fair market value, where there was no
evidence presented of fair market value, gives rise to an
inference the seller knew or should have known the property
was stolen, resulting in a due process violation. Petition at
15. Petitioner contends this issue boils down to a due
process violation as the state was allowed to infer guilt but
not present evidence to support the inference on essential
elements of the crime of dealing in stolen property.
Id. In the Response, Respondents assert that the due
process claim is unexhausted and procedurally barred.
Response at 11, 24-27.
addressing the question of exhaustion, this Court must ask
whether Petitioner's claim was fairly raised in the state
Before seeking § 2254 habeas relief in federal court, a
petitioner must exhaust all state court remedies available
for challenging his conviction. See 28 U.S.C. §
2254(b), (c). For a federal claim to be exhausted, the
petitioner must have "fairly presented [it] to the state
courts." McNair v. Campbell, 416 F.3d 1291,
1302 (11th Cir. 2005). The Supreme Court has suggested that a
litigant could do so by including in his claim before the
state appellate court "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.'" Baldwin v. Reese, 541 U.S.
27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). The
Court's guidance in Baldwin "must be
applied with common sense and in light of the purpose
underlying the exhaustion requirement"-namely, giving
the state courts "a meaningful opportunity" to
address the federal claim. McNair, 416 F.3d at 1302.
Thus, a petitioner could not satisfy the exhaustion
requirement merely by presenting the state court with
"all the facts necessary to support the claim, " or
by making a "somewhat similar state-law claim."
Kelley, 377 F.3d at 1343-44. Rather, he must make
his claims in a manner that provides the state courts with
"the opportunity to apply controlling legal principles
to the facts bearing upon (his) [federal] constitutional
claim." Id. at 1344 (quotation omitted).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d
1342, 1351-52 (11th Cir. 2012), cert.
denied, 568 U.S. 1104 (2013).
doctrine of procedural default requires the following:
Federal habeas courts reviewing the constitutionality of a
state prisoner's conviction and sentence are guided by
rules designed to ensure that state-court judgments are
accorded the finality and respect necessary to preserve the
integrity of legal proceedings within our system of
federalism. These rules include the doctrine of procedural
default, under which a federal court will not review the
merits of claims, including constitutional claims, that a
state court declined to hear because the prisoner failed to
abide by a state procedural rule. See,
e.g., Coleman, supra, at 747-748,
111 S.Ct. 2546; Sykes, supra, at 84-85, 97
S.Ct. 2497. A state court's invocation of a procedural
rule to deny a prisoner's claims precludes federal review
of the claims if, among other requisites, the state
procedural rule is a nonfederal ground adequate to support
the judgment and the rule is firmly established and
consistently followed. See, e.g.,
Walker v. Martin, 562 U.S. __, __, 131 S.Ct. 1120,
1127-1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler,
558 U.S. __, __, 130 S.Ct. 612, 617-618, 175 L.Ed.2d 417
(2009). The doctrine barring procedurally defaulted claims
from being heard is not without exceptions. A prisoner may
obtain federal review of a defaulted claim by showing cause
for the default and prejudice from a violation of federal
law. See Coleman, 501 U.S., at 750, 111 S.Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012).
Supreme Court has imparted that a petition for writ of habeas
corpus should not be entertained unless the petitioner has
first exhausted his state court remedies. Castille v.
Peoples, 489 U.S. 346, 349 (1989); Rose v.
Lundy, 455 U.S. 509 (1982). A procedural default arises
"when 'the petitioner fails to raise the [federal]
claim in state court and it is clear from state law that any
future attempts at exhaustion would be futile.'"
Owen v. Sec'y, Dep't of Corr., 568 F.3d 894,
908 n.9 (11th Cir. 2009) (quoting Zeigler v. Crosby,
345 F.3d 1300, 1304 (11th Cir. 2003)), cert.
denied, 558 U.S. 1151 (2010).
review, the record shows Petitioner did not raise the federal
due process claim in his appeal brief. Ex. C. Thus, he did
not fairly present a federal constitutional claim to the
state courts. In this case, it is clear that any future
attempts at exhaustion would be futile.
are, however, allowable exceptions to the procedural default
doctrine; "[a] prisoner may obtain federal review of a
defaulted claim by showing cause for the default and
prejudice from a violation of federal law." Martinez
v. Ryan, 566 U.S. at 10 (citing Coleman v.
Thompson, 501 U.S. 722, 750 (1991)). If cause is
established, a petitioner is required to demonstrate
prejudice. In order to demonstrate prejudice, a petitioner
must show "that there is at least a reasonable
probability that the result of the proceeding would have been
different had the constitutional violation not
occurred." Owen, 568 F.3d at 908.
particularly, to demonstrate cause, a petitioner must show
that some objective factor external to the defense impeded
his effort to properly raise the claim in state court.
Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.),
cert. denied, 528 U.S. 934 (1999). Here,
Petitioner fails to point to some factor external to the
has failed to show cause, and he does not meet the prejudice
or manifest injustice exceptions. Although a petitioner may
obtain review of the merits of a procedurally barred claim if
he satisfies the actual innocence "gateway"
established in Schlup v. Delo, 513 U.S. 298 (1995),
Petitioner has not done so. The gateway is meant to prevent a
constitutional error at trial from causing a miscarriage of
justice and "'the conviction of one who is actually
innocent of the crime.'" Kuenzel v. Comm'r,
Ala. Dep't of Corr., 690 F.3d 1311, 1314 (11th Cir.
2012) (per curiam) (quoting Schlup, 513 U.S. at
324), cert. denied, 569 U.S. 1004 (2013).
The fundamental miscarriage of justice exception is only
available in extraordinary cases upon a showing of
"'actual' innocence" rather than mere
"'legal' innocence." Johnson v.
Ala., 256 F.3d 1156, 1171 (11th Cir. 2001) (citations
omitted), cert. denied, 535 U.S. 926
(2002). With respect to this unexhausted ground, Petitioner
has failed to identify any fact warranting the application of
the fundamental miscarriage of justice
conclusion, the Court finds ground one is unexhausted and
procedurally defaulted. As Petitioner has failed to establish
cause and prejudice or any factors warranting the application
of the fundamental miscarriage of justice exception to
overcome the default, this ground is due to be denied as
ground two, Petitioner raises a claim of ineffective
assistance of counsel for failure to call two exculpatory
witnesses. Petition at 18. Petitioner exhausted this ground
by raising it in ground three of his Rule 3.850 motion and
ground one (renumbered as ground five) of the Amended Rule
3.850 motion and ...