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Norman v. Secretary, Florida Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

June 13, 2018

WENZEL EUGENE NORMAN, Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          MARCIA MORALES HOWARD UNITED STATES DISTRICT JUDGE.

         I. Status

         Petitioner 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.[1] 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.

         II. Procedural History

         On 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. Ct.).

         Norman 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 60-68.

         On 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. Ex. 6.

         On 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.

         The 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.

         III. One-Year Limitations Period

         The Petition appears to be timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d).

         IV. Evidentiary Hearing

         In a 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.

         V. Governing Legal Principles

         A. Standard of Review

         The 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)).

         The 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 reasoning.

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.

         If the 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.'”[2] 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 Norman's claims were adjudicated on the merits in the state courts, they must be evaluated under 28 U.S.C. § 2254(d).

         B. Exhaustion/Procedural Default

         There 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).

         In addressing exhaustion, the United States Supreme Court explained:

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).

         A state 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, [3] supra, at 747-748, 111 S.Ct. 2546; Sykes, [4] 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).[5] 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. 1999).

         In the 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.

         C. Ineffective Assistance of Trial Counsel

         “The 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 697.

         A state 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).

         VI. Findings of Fact and Conclusions of Law

         A. Ground One ]

         Norman 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.

         Initially, 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.

         Additionally, 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.

         To the 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.

         Nevertheless, 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 following:

[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 ...


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