United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD United States District Judge
Khalid Mohd, an inmate of the Florida penal system, initiated
this action on May 11, 2015, by filing a pro se Petition for
Writ of Habeas Corpus (Petition; Doc. 1) under 28 U.S.C.
§ 2254. In the Petition, Mohd challenges a 2012 state
court (Putnam County, Florida) judgment of conviction for
attempted first degree murder with a weapon, arson, and
aggravated battery causing serious bodily injury with a
weapon. Respondents have submitted a memorandum in opposition
to the Petition. See Respondents' Response to
Petition (Response; Doc. 7) with exhibits (Resp. Ex.). On
September 4, 2015, the Court entered an Order to Show Cause
and Notice to Petitioner (Doc. 4), admonishing Mohd regarding
his obligations and giving Mohd a time frame in which to
submit a reply. Mohd submitted a brief in reply. See
Petitioner's Reply to Respondents' Response (Reply;
Doc. 8). This case is ripe for review.
7, 2012, the State of Florida charged Mohd with attempted
first degree murder with a weapon (count one), arson (count
two), and aggravated battery causing serious bodily injury
with a weapon (count three). See Resp. Ex. A at
139-40, Second Amended Information. Mohd proceeded to a jury
trial in June 2012, at the conclusion of which, on June 26,
2012, the jury found him guilty, as charged. See id.
at 268-70, Verdict; Resp. Ex. B, Transcript of the Jury Trial
(Tr.) at 641-43. On August 8, 2012, the court sentenced Mohd
to life imprisonment for count one, a term of imprisonment of
thirty years for count two, to run concurrently with count
one, and a term of imprisonment of thirty years for count
three, to run concurrently with count one. See Resp.
Exs. A at 275-86, Judgment; D.
direct appeal, Mohd, with the benefit of counsel, filed an
initial brief, raising the following issues: the cumulative
effect of impermissible evidence tainted the jury and denied
Mohd a fair trial (ground one); the prosecutor's
arguments to the jury regarding Mohd's religion and
alleged polygamy mischaracterized his culture and customs,
were more prejudicial than probative, and deprived him of his
Fourteenth Amendment rights to a fair trial and due process
of law (ground two); the trial court erred when it admitted
multiple gruesome photographs depicting the victim's
nude, burned body, and the photographs were redundant and
prejudicial (ground three); and the trial court erred when it
admitted testimony and a photograph of the family swimming
pool filled with sand because the evidence was more
prejudicial than probative (ground four). See Resp.
Ex. F at 1-30. The State filed an answer brief, see
id. at 31-49, and Mohd filed a reply brief, see
id. at 50-56. On July 30, 2013, the appellate court
affirmed Mohd's conviction and sentence without issuing a
written opinion, see Mohd v. State, 117 So.3d 1109
(Fla. 5th DCA 2013); Resp. Ex. F at 57, and the mandate
issued on August 23, 2013, see Resp. Ex. F at 58.
February 24, 2014, Mohd, with the benefit of counsel, filed a
motion for post-conviction relief pursuant to Florida Rule of
Criminal Procedure 3.850 (Rule 3.850 motion). See
Resp. Ex. G at 4-63. In his request for post-conviction
relief, he asserted that counsel (Garry Wood) was ineffective
because he failed to: properly memorialize witness testimony
and documents from Jordan (ground one); procure documents
from Jordan to show Mohd had divorced his other wife (ground
two); memorialize witness statements to impeach the victim
regarding her mental health and suicidal tendencies (ground
three); impeach key witnesses (ground four); impeach the
victim with her prior inconsistent statements regarding her
burns (ground five); determine and propound evidence
regarding the cultural significance of self-immolation among
Islamic women in the Middle East and Asia (ground six);
object to or propound evidence regarding the cultural and
religious significance of divorce and polygamy in Islamic
countries (ground seven); and raise defenses based on
exculpatory evidence (ground eight). The State responded,
see id. at 66-178, and the circuit court denied his
Rule 3.850 motion on September 29, 2014, see id. at
179-339. The appellate court affirmed the court's denial
of post-conviction relief per curiam on April 28, 2015,
see Mohd v. State, 166 So.3d 808 (Fla. 5th DCA
2015); Resp. Ex. G at 364, and later denied Mohd's
motions for rehearing and for a written opinion, see
Resp. Ex. G at 340-63. The mandate issued on June 22, 2015.
See id. at 365.
One-Year Limitations Period
Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d).
habeas corpus proceeding, the burden is on the petitioner to
establish the need for a federal evidentiary hearing. See
Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d
1057, 1060 (11th Cir. 2011). "In deciding whether to
grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the
petition's factual allegations, which, if true, would
entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007);
Jones v. Sec'y, Fla. Dep't of
Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016),
cert. denied, 137 S.Ct. 2245 (2017).
"It follows that if the record refutes the
applicant's factual allegations or otherwise precludes
habeas relief, a district court is not required to hold an
evidentiary hearing." Schriro, 550 U.S. at 474.
The pertinent facts of this case are fully developed in the
record before the Court. Because this Court can
"adequately assess [Mohd's] claim[s] without further
factual development, " Turner v. Crosby, 339
F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will
not be conducted.
Governing Legal Principles
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner's federal petition for habeas
corpus. 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)
(quotation marks omitted)). As such, federal habeas review of
final state court decisions is "'greatly
circumscribed' and 'highly deferential.'"
Id. (quoting Hill v. Humphrey, 662 F.3d
1335, 1343 (11th Cir. 2011) (quotation marks omitted)).
first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the claim
on the merits. See Marshall v. Sec'y, Fla. Dep't
of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The
state court need not issue an opinion explaining its
rationale in order for the state court's decision to
qualify as an adjudication on the merits. See
Harrington v. Richter, 562 U.S. 86, 100 (2011).
Where the state court's adjudication on the merits is
unaccompanied by an explanation, the United States Supreme
Court recently stated:
[T]he federal court should "look through" the
unexplained decision to the last related state-court decision
that does provide a relevant rationale. It should then
presume that the unexplained decision adopted the same
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). The
presumption may be rebutted by showing that the higher state
court's adjudication most likely relied on different
grounds than the lower state court's reasoned decision,
such as persuasive alternative grounds that were briefed or
argued to the higher court or obvious in the record it
reviewed. Id. at 1192, 1196.
claim was "adjudicated on the merits" in state
court, § 2254(d) bars relitigation of the claim unless
the state court's decision (1) "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) "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); Richter, 562 U.S. at 97-98. As the Eleventh
Circuit has explained:
First, § 2254(d)(1) provides for federal review for
claims of state courts' erroneous legal conclusions. As
explained by the Supreme Court in Williams v.
Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000), § 2254(d)(1) consists of two distinct clauses: a
"contrary to" clause and an "unreasonable
application" clause. The "contrary to" clause
allows for relief only "if the state court arrives at a
conclusion opposite to that reached by [the Supreme] Court on
a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of
materially indistinguishable facts." Id. at
413, 120 S.Ct. at 1523 (plurality opinion). The
"unreasonable application" clause allows for relief
only "if the state court identifies the correct
governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case." Id.
Second, § 2254(d)(2) provides for federal review for
claims of state courts' erroneous factual determinations.
Section 2254(d)(2) allows federal courts to grant relief only
if the state court's denial of the petitioner's claim
"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)(2). The Supreme
Court has not yet defined § 2254(d)(2)'s
"precise relationship" to § 2254(e)(1), which
imposes a burden on the petitioner to rebut the state
court's factual findings "by clear and convincing
evidence." See Burt v. Titlow, 571 U.S. ___,
___, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord
Brumfield v. Cain, 576 U.S. ___, ___, 135 S.Ct. 2269,
2282, 192 L.Ed.2d 356 (2015). Whatever that "precise
relationship" may be, "'a state-court factual
determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the
first instance.'" Titlow, 571 U.S. at ___, 134
S.Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,
301, 130 S.Ct. 841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir.
2016), cert. denied, 137 S.Ct. 2298 (2017).
Also, deferential review under § 2254(d) generally is
limited to the record that was before the state court that
adjudicated the claim on the merits. See Cullen v.
Pinholster, 563 U.S. 170, 182 (2011) (stating the
language in § 2254(d)(1)'s "requires an
examination of the state-court decision at the time it was
made"). Thus, "AEDPA erects a formidable barrier to
federal habeas relief for prisoners whose claims have been
adjudicated in state court." Burt v. Titlow,
134 S.Ct. 10, 16 (2013). "Federal courts may grant
habeas relief only when a state court blundered in a manner
so 'well understood and comprehended in existing law'
and 'was so lacking in justification' that 'there
is no possibility fairminded jurists could
disagree.'" Tharpe, 834 F.3d at 1338
(quoting Richter, 562 U.S. at 102-03). This standard
is "meant to be" a "difficult" one to
meet. Richter, 562 U.S. at 102. Thus, to the extent
that Mohd's claims were adjudicated on the merits in the
state courts, they must be evaluated under 28 U.S.C. §
are prerequisites to federal habeas review. Before bringing a
§ 2254 habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for
challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the
petitioner must "fairly present" every issue
raised in his federal petition to the state's highest
court, either on direct appeal or on collateral review.
Castille v. Peoples, 489 U.S. 346, 351 (1989)
(emphasis omitted). Thus, to properly exhaust a claim,
"state prisoners must 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 v. Boerckel,
526 U.S. 838, 845 (1999).
addressing exhaustion, the United States Supreme Court
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C.
§ 2254(b)(1), thereby giving the State the
"'"opportunity to pass upon and correct"
alleged violations of its prisoners' federal
rights.'" Duncan v. Henry, 513 U.S. 364,
365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam)
(quoting Picard v. Connor, 404 U.S. 270, 275, 92
S.Ct. 509, 30 L.Ed.2d 438 (1971)). To provide the State with
the necessary "opportunity, " the prisoner must
"fairly present" his claim in each appropriate
state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the
federal nature of the claim. Duncan, supra,
at 365-366, 115 S.Ct. 887; O'Sullivan v.
Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
prisoner's failure to properly exhaust available state
remedies results in a procedural default which raises a
potential bar to federal habeas review. The United States
Supreme Court has explained the doctrine of procedural
default as follows:
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, 132 S.Ct. 1309, 1316 (2012). Thus,
procedural defaults may be excused under certain
circumstances. Notwithstanding that a claim has been
procedurally defaulted, a federal court may still consider
the claim if a state habeas petitioner can show either (1)
cause for and actual prejudice from the default; or (2) a
fundamental miscarriage of justice. Ward v. Hall,
592 F.3d 1144, 1157 (11th Cir. 2010). In order for a
petitioner to establish cause,
the procedural default "must result from some objective
factor external to the defense that prevented [him] from
raising the claim and which cannot be fairly attributable to
his own conduct." McCoy v. Newsome, 953 F.2d
1252, 1258 (11th Cir. 1992) (quoting Carrier, 477
U.S. at 488, 106 S.Ct. 2639). Under the prejudice prong, [a
petitioner] must show that "the errors at trial actually
and substantially disadvantaged his defense so that he was
denied fundamental fairness." Id. at 1261
(quoting Carrier, 477 U.S. at 494, 106 S.Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir.
absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally
defaulted claim if the petitioner can establish that a
fundamental miscarriage of justice, the continued
incarceration of one who is actually innocent, otherwise
would result. The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive consideration
on the merits of his procedurally defaulted claim. "[I]n
an extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in
the absence of a showing of cause for the procedural
default." Carrier, 477 U.S. at 496, 106 S.Ct.
at 2649. "This exception is exceedingly narrow in scope,
" however, and requires proof of actual innocence, not
just legal innocence. Johnson v. Alabama, 256 F.3d
1156, 1171 (11th Cir. 2001).
Ward, 592 F.3d at 1157. "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." Johnson v. Alabama, 256
F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)). Additionally,
"'[t]o be credible, ' a claim of actual
innocence must be based on reliable evidence not presented at
trial." Calderon v. Thompson, 523 U.S. 538, 559
(1998) (quoting Schlup, 513 U.S. at 324). With the
rarity of such evidence, in most cases, allegations of actual
innocence are ultimately summarily rejected. Schlup,
513 U.S. at 324.
Ineffective Assistance of Trial 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), and Strickland v. Washington, 466 U.S. 668,
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, 104 S.Ct. 2052. 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, 104
S.Ct. 2052. 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, 104 S.Ct.
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, 104 S.Ct. 2052. It is
not enough "to show that the errors had some conceivable
effect on the outcome of the proceeding." Id.,
at 693, 104 S.Ct. 2052. 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, 104
Richter, 562 U.S. at 104. The Eleventh Circuit has
recognized "the absence of any iron-clad rule requiring
a court to tackle one prong of the Strickland test
before the other." Ward, 592 F.3d at 1163.
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." Id. (citing Holladay v.
Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated
in Strickland: "If it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course
should be followed." Strickland, 466 U.S. at
court's adjudication of an ineffectiveness claim is
accorded great deference.
"[T]he standard for judging counsel's representation
is a most deferential one." Richter, - U.S. at
-, 131 S.Ct. at 788. But "[e]stablishing that a state
court's application of Strickland was
unreasonable under § 2254(d) is all the more difficult.
The standards created by Strickland and §
2254(d) are both highly deferential, and when the two apply
in tandem, review is doubly so." Id. (citations
and quotation marks omitted). "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, 129 S.Ct. 1411, 1420, 173
L.Ed.2d 251 (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, - U.S. at -, 131 S.Ct. at 788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th
Cir. 2014); Knowles v. Mirzayance, 556 U.S. 111, 123
(2009). "In addition to the deference to counsel's
performance mandated by Strickland, the AEDPA adds
another layer of deference___this one to a state court's
decision___when we are considering whether to grant federal
habeas relief from a state court's decision."
Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.
2004). As such, "[s]urmounting Strickland's
high bar is never an easy task." Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).
Findings of Fact and Conclusions of Law
ground one, Mohd asserts that the cumulative effect of
impermissible evidence tainted the jury and denied him a fair
trial. See Petition at 4-7 (citing Tr. at 20, 21,
39, 50, 52-53, 56, 59, 61, 63-64, 66, 97). Additionally, he
states that counsel was ineffective because he failed to
object to the impermissible evidence, including the testimony
of Rema (Mohd's wife, the victim) and A.J. (Mohd's
eldest son) regarding Rema's injuries, the family
swimming pool filled with sand, and Mohd's other wife.
See Petition at 7. Respondents argue that Mohd's
claims are procedurally barred, see Response at
10-11, and this Court agrees since Mohd failed to raise the
claims in a procedurally correct manner. Mohd has not shown