United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD UNITED STATES DISTRICT JUDGE.
Wenzel Eugene Norman, an inmate of the Florida penal system,
initiated this action on August 16, 2015, by filing a pro se
Petition for Writ of Habeas Corpus (Petition; Doc. 1) under
28 U.S.C. § 2254. In the Petition, Norman challenges a 2007
state court (Duval County, Florida) judgment of conviction
for trafficking in heroin and trafficking in cocaine.
Respondents have submitted a memorandum in opposition to the
Petition. See Respondents' Answer to Petition
for Writ of Habeas Corpus (Resp.; Doc. 20) with exhibits
(Resp. Ex.). On February 24, 2017, the Court entered an Order
(Doc. 21) giving Norman a time frame in which to submit a
reply. Norman submitted a brief in reply. See
Petitioner's Reply to Respondents' Answer to the
Petition (Reply; Doc. 26). This case is ripe for review.
August 28, 2006, the State of Florida charged Norman with
trafficking twenty-eight grams or more, but less than thirty
kilograms, of heroin (count one); trafficking four grams or
more, but less than fourteen grams, of heroin (count two);
trafficking twenty-eight grams or more, but less than 200
grams, of cocaine (count three); and possession of a firearm
by a convicted felon (count four). See Resp. Ex. 1
at 8. On June 21, 2007, with the assistance of counsel,
Petitioner filed a motion to sever count four from the
remaining counts. Resp. Ex. 1 at 28-29. The circuit court
granted Petitioner's motion to sever the same day.
Id. The state later nolle prossed count four.
See State v. Norman, 2006-CF-12343 (Fla. 4th Cir.
proceeded to a jury trial on counts one, two, and three, at
the conclusion of which, on August 16, 2007, the jury found
him guilty, as charged. See Resp. Ex. 1 at 54-56. On
October 9, 2007, the circuit court sentenced Norman to
incarceration for a minimum mandatory term of twenty-five
years for count one, and a twenty-five-year term with a
three-year minimum mandatory for each count two and three, to
run concurrently with count one. See Resp. Ex. 1 at
direct appeal, Norman, with the benefit of counsel, filed an
initial brief pursuant to Anders v. California, 386
U.S. 738 (1967) representing that no good faith argument of
reversible error could be made. Resp. Ex. 3. The First
District Court of Appeal (First DCA) granted Norman leave to
file a pro se initial brief. Resp. Ex. 4. Norman then filed a
pro se initial brief raising the following issues: the trial
court erred in denying Norman's motion in limine
regarding evidence of a crime for which Norman was not
charged (issue one); the trial court erred in allowing a
state witness to violate Norman's confrontation rights
under Crawford v. Washington, 541 U.S. 36 (2004)
(issue two); and the trial court erred in permitting
Detective Lavell Thomas (Detective Thomas) to bolster the
testimony of Detective Bertrand Hollins (Detective Hollins)
(issue three). Resp. Ex. 5. The state did not file an answer
brief. See Resp. Ex. 6. On December 16, 2008, the
First DCA per curiam affirmed Norman's convictions and
sentences without a written opinion. See id.;
Norman v. State, 997 So.2d 409 (Fla. 1st DCA 2008).
The First DCA issued its mandate on January 13, 2009. Resp.
December 29, 2009, Norman filed a pro se motion for
postconviction relief pursuant to Florida Rule of Criminal
Procedure 3.850, raising the same claims as those raised in
issue two and issue three of his pro se initial brief on
direct appeal, and an additional claim that the trial court
erred in omitting a jury instruction for simple possession of
heroin as a lesser included offense for count one. Resp. Ex.
7 at 1-13. Norman filed a motion to amend his Rule 3.850
motion on October 23, 2013. Id. at 14-17. That same
day, Norman filed an amended Rule 3.850 motion for
postconviction relief asserting that trial counsel (Katherine
Littell) was ineffective because she failed to: object to the
jury instruction and verdict forms as to the lesser included
offenses (ground one); object to hearsay testimony (ground
two); object to Detective Thomas bolstering the testimony of
Detective Hollins (ground three); adequately advise Norman
about testifying on his own behalf (ground four); and the
cumulative effect of trial counsel's errors violated his
Sixth Amendment and due process rights (ground five).
Id. at 18-41.
circuit court granted Norman's motion for leave to amend,
and on September 23, 2014, struck ground four of Norman's
amended Rule 3.850 motion and gave him sixty days to file a
facially sufficient claim. Id. at 42-46. In
response, Norman withdrew ground four. Id. at 47. On
December 23, 2014, the circuit court summarily denied
Norman's Rule 3.850 motions. Id. at 54-62. The
First DCA affirmed the circuit court's denial per curiam
on April 29, 2015, and issued its mandate on March 10, 2016.
Resp. Ex. 10.
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
[Norman'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 Norman'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 1 (1999).
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.
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).
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, 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, 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. 2052.
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 S.Ct. 2052.
Richter, 562 U.S. at 104. The Eleventh Circuit has
recognized “the absence of any ironclad 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
Findings of Fact and Conclusions of Law
Ground One ]
alleges that the circuit court erred in denying his pretrial
motion in limine and allowing the introduction of improper
collateral crimes evidence. Doc. 1 at 5. Specifically, Norman
contends that the prior drug transactions that occurred at
Norman's residence were not sufficiently similar to the
charged offense, and the prejudicial effect of allowing such
evidence outweighed any probative value. Id.
Respondents contend that Norman failed to fairly present the
federal nature of this claim in the state court, and as such,
his claim is unexhausted and procedurally defaulted. Resp. at
15-24. They also assert that this claim is not cognizable and
otherwise without merit. Id.
to the extent Norman urges that the state court erred under
Florida law when it allowed the state to present this
evidence, this assertion is not cognizable on federal habeas
review. “As a general rule, a federal court in a habeas
corpus case will not review the trial court's actions
concerning the admissibility of evidence, ” because the
state court “has wide discretion in determining whether
to admit evidence at trial[.]” Alderman v.
Zant, 22 F.3d 1541, 1555 (11th Cir. 1994); see
also Baxter v. Thomas, 45 F.3d 1501, 1509 (11th
Cir. 1985) (federal habeas corpus is not the proper vehicle
to correct evidentiary rulings); Boykins v.
Wainwright, 737 F.2d 1539, 1543 (11th Cir. 1984)
(federal courts are not empowered to correct erroneous
evidentiary rulings in state court except where rulings deny
petitioner fundamental constitutional protections). Thus,
Norman's allegations that the trial court violated state
law are not proper for the Court's consideration.
while Norman attempts to add a claim in his Reply that the
trial court's error violated his Fourteenth Amendment
right to a fair and impartial trial, see Reply at 3,
the Court need not consider this claim raised for the first
time in his Reply brief. Norman did not seek leave to amend
his Petition to add a Fourteenth Amendment claim after
Respondents filed their Response. See Fla. R. Civ.
P. 15(a)(2); see also Oliveiri v. United States, 717
Fed.Appx. 966, 967 (11th Cir. 2018) (affirming district
court's decision to not construe reply brief as a request
for leave to amend § 2255 petition to add new claim as
amendment would be untimely and futile); Garcia v.
Sec'y, Dept. of Corr., No. 8:10-cv-2116-T-27MAP,
2013 WL 3776674, at *4-5 (M.D. Fla., July 17, 2013) (noting
that habeas petitioner's new claim raised in his reply
was not authorized, where the Rules Governing Habeas Corpus
Cases Under Section 2254 required all grounds for relief to
be stated in the petition, and petitioner failed to seek
leave to amend his petition after a response had been
served); Ware v. Crews, No. 3:12cv524, 2013 WL
3546474, at *14 (N.D. Fla., July 11, 2013) (finding
petitioner did not properly raise forfeiture of gain time
claim where petitioner raised it for the first time in reply
to respondents' answer, petitioner did not seek leave to
amend petition, and reply expressly stated intent that
document be deemed reply to answer). Instead, in his Reply,
Norman adds one conclusory sentence invoking his Fourteenth
Amendment right to due process. The Court declines to
construe this conclusory allegation lacking in any support or
discussion to be a proposed amended petition or even a
request to amend his Petition. Thus, to the extent Norman
attempts to add a Fourteenth Amendment claim, the Court need
not address it.
extent Ground One can be liberally construed as a federal
constitutional challenge, this claim is unexhausted because
Norman did not present the federal nature of this claim to
the state appellate court. Norman raised this exact claim as
issue one of his pro se initial brief on direct appeal. Resp.
Ex. 5 at 4-7. When briefing this issue, Norman did not state
or suggest that it was a federal claim about due process or
any other federal constitutional guarantee. Id.
Instead, Norman argued, in terms of state law only, that the
trial court failed to heed the evidentiary standard outlined
in section 90.403, Florida Statutes, and that the collateral
crimes and the charged crimes did not demonstrate a unique
pattern of criminal activity. Id. at 6 (citing
Donley v. State, 694 So.2d 149 (Fla. 4th DCA 1997);
Blackburn v. State, 314 So.2d 634 (Fla. 4th DCA
1975); Black v. State, 630 So.2d 609, 617 (Fla. 1st
DCA 1993)). Although Norman referenced the Sixth Amendment of
the United States Constitution in his brief, Norman failed to
articulate and fairly present a federal constitutional claim.
Resp. Ex. 5 at 7. Merely citing to the federal constitution
is insufficient to exhaust a claim in state court. See
Anderson v. Harless, 459 U.S. 4, 7 (1982). As
such, Ground One is unexhausted and procedurally defaulted,
and Norman has failed to show cause for or prejudice from
this procedural bar.
assuming this claim is exhausted and properly presented to
the Court, it is still without merit because the state
court's evidentiary ruling did not “‘so
infuse the trial with unfairness as to deny due process of
law.'” Smith v. Jarriel, 429 Fed.Appx.
936, 937 (11th Cir. 2011) (quoting Felker v. Turpin,
83 F.3d 1303, 1311-12 (11th Cir. 1996)). The circuit court
conducted a pretrial hearing on Norman's motion in
limine. Resp. Ex. 1 at 76-86. During the hearing,
Norman's trial counsel requested that the court prohibit
Detective Hollins from testifying that he purchased drugs
from Norman on two prior occasions. Id. at 80. In
response, the prosecutor conceded and explained the
[T]he State doesn't intend to ask Detective Hollins about
prior criminal activity. All the State wants to do is have
Detective Hollins testify that he had been to Mr.
Norman's house previously and had met with him at that
house. I don't intend to put on a single piece of
evidence about that meeting being actually a drug
transaction. The purpose is to show that that house was
occupied by Mr. Norman, which goes right to the heart of
counts two and three because that was the narcotics recovered
upon the search warrant.
Id. at 80-81. Norman avers that the prosecutor
disregarded his assurance and elicited improper collateral
crimes testimony. Doc. 1 at 5-6. However, the testimony that
Norman cites to support this allegation is unpersuasive.
Id. Specifically, at trial, the following ...