United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE
Michael Dunbar, an inmate of the Florida penal system,
initiated this action on August 20, 2015, by filing a pro se
Petition for Writ of Habeas Corpus (Doc. 1) under 28 U.S.C.
§ 2254. He filed an Amended Petition (Doc. 8) on June 9,
2016, and a Second Amended Petition (Amended Petition; Doc.
13) on December 5, 2016. In the Amended Petition, Dunbar
challenges a 2008 state court (Duval County, Florida)
judgment of conviction for attempted first degree murder.
Respondents have submitted a memorandum in opposition to the
Amended Petition. See Respondents' Amended
Answer to Petition for Writ of Habeas Corpus (Response; Doc.
28) with exhibits (Resp. Ex.). On October 13, 2016, the Court
entered an Order to Show Cause and Notice to Petitioner (Doc.
10), admonishing Dunbar regarding his obligations and giving
Dunbar a time frame in which to submit a reply. Dunbar, with
the benefit of counsel, submitted a brief in reply on December
1, 2017. See Reply to the Respondents' Response
to Mr. Dunbar's Petition for Writ of Habeas Corpus
(Reply; Doc. 36). This case is ripe for review.
September 26, 2007, the State of Florida charged Dunbar with
attempted first degree murder (count one), and possession of
a firearm by a convicted felon (count two). See
Resp. Ex. A at 11-12, Information; see also
16-2007-CF-013715-AXXX-MA (Fla. 4th Cir. Ct.), docket entries
9, 10, Information. Dunbar proceeded to a jury trial on count
one in February 2008, at the conclusion of which, on February
28, 2008, the jury found him guilty, as charged, with a
specific finding that he discharged a firearm causing great
bodily harm to another during the commission of the offense.
See id. at 78-79, Verdict; Resp. Exs. B; C,
Transcript of the Jury Trial (Tr.) at 765. On April 11, 2008,
the court sentenced Dunbar to life imprisonment. See
Resp. Ex. A at 96-101, Judgment, 114-53, Transcript of the
direct appeal, Dunbar, with the benefit of counsel, filed an
initial brief pursuant to Anders v. California, 386
U.S. 738 (1967). See Resp. Ex. D. Dunbar filed a pro
se brief, arguing that the trial court erred when it denied
his motion for judgment of acquittal. See Resp. Ex.
E. On April 27, 2009, the appellate court affirmed
Dunbar's conviction and sentence without issuing a
written opinion, see Resp. Ex. F, and issued the
mandate on May 26, 2009, see Resp. Ex. G.
23, 2009, Dunbar filed a pro se motion for post-conviction
relief pursuant to Florida Rule of Criminal Procedure 3.850
(Rule 3.850 motion). See Resp. Ex. H at 1-18. In his
request for post-conviction relief, Dunbar asserted that
counsel (Valerie Limoge) was ineffective because she failed
to challenge the investigatory stop (ground one), and
properly impeach Officer N.A. Rodgers' testimony (ground
two). The circuit court denied his Rule 3.850 motion on
October 28, 2010. See id. at 19-105. On July 15,
2011, the appellate court affirmed the circuit court's
denial of post-conviction relief per curiam, see
Resp. Ex. J, and issued the mandate on August 10, 2011,
see Resp. Ex. K.
December 19, 2011, Dunbar filed a pro se motion to correct
illegal sentence pursuant to Florida Rule of Criminal
Procedure 3.800 (Rule 3.800 motion). See Resp. Ex.
L. On July 2, 2014, the circuit court denied the Rule 3.800
motion. See Resp. Ex. M. The appellate court
affirmed the circuit court's denial of the motion per
curiam on November 25, 2014, see Resp. Ex. O, and
issued the mandate on December 23, 2014, see Resp.
about May 1, 2013, Dunbar filed a pro se petition for writ of
habeas corpus, see Resp. Ex. Q, and on November 25,
2014 filed an amended petition, see Resp. Ex. R at
1-18. In the petitions, Dunbar asserted that the trial court
lacked subject matter jurisdiction, and the judgment is a
nullity because the Information omitted one or more of the
essential elements of the crime of attempted first degree
murder. On May 7, 2015, the circuit court stated that Dunbar
should have raised the claim in a Rule 3.850 motion, and
denied it as procedurally barred. See id. at 19-29.
On appeal, Dunbar filed a pro se brief, see Resp.
Ex. S, and the State filed an answer brief, see
Resp. Ex. T. The appellate court affirmed the circuit
court's denial per curiam on September 2, 2015,
see Resp. Ex. U, and later denied his motion for
rehearing, see Resp. Exs. V; W. The mandate issued
on November 18, 2015. See Resp. Ex. X.
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 [Dunbar'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
"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 Dunbar's claims
were adjudicated on the merits in the state courts, they must
be evaluated under 28 U.S.C. § 2254(d).
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 Re Davis,
565 F.3d 810, 821 (11th Cir. 2009). 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.
Martinez, the Supreme Court modified the general
rule in Coleman to expand the "cause" that
may excuse a procedural default. 132 S.Ct. at 1315.
Allowing a federal habeas court to hear a claim of
ineffective assistance of trial counsel when an
attorney's errors (or the absence of an attorney) caused
a procedural default in an initial-review collateral
proceeding acknowledges, as an equitable matter, that the
initial-review collateral proceeding, if undertaken without
counsel or with ineffective counsel, may not have been
sufficient to ensure that proper consideration was given to a
substantial claim. From this it follows that, when a State
requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim in a collateral
proceeding, a prisoner may establish cause for a default of
an ineffective-assistance claim in two circumstances. The
first is where the state courts did not appoint counsel in
the initial-review collateral proceeding for a claim of
ineffective assistance at trial. The second is where
appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). To overcome the default, a prisoner must also
demonstrate that the underlying