United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
R. JONES, UNITED STATES MAGISTRATE JUDGE
initiated this case by filing a pro se Petition for
a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
(ECF No. 1). Petitioner is proceeding pursuant to a second
amended petition, ECF No. 27 (“Petition”). The
Petition stems from Petitioner's 2008 Leon County
conviction of arson of a dwelling, for which Petitioner
received a 30-year sentence as a prison releasee reoffender
(“PRR”). The Respondent has filed a response in
opposition to the petition, together with relevant portions
of the state-court record, and Petitioner has filed a reply.
ECF Nos. 38, 41. Upon due consideration of the pleadings and
the state-court record, the undersigned recommends that the
Petition be denied.
was charged by information with one count of arson of a
dwelling (Count I) and one count of violation of a domestic
violence injunction (Count II). ECF No. 41-1 at 13.
Petitioner was represented at trial by conflict counsel
Gregory J. Cummings. The evidence adduced at trial may be
summarized as follows.
Waltz testified that she is the mother of Petitioner's
then-girlfriend, Nichole Waltz. Barbara Waltz had a
restraining order against Petitioner, and she identified
Petitioner in court. Waltz lived in a ground floor apartment
in Building 300 at Savannah Sound apartments in Tallahassee.
Petitioner and Nichole had previously lived in the apartment.
In the early morning hours of August 23, 2006, Waltz awakened
to discover that an exterior wall of her apartment was on
fire. Waltz and other neighbors evacuated the building. Her
personal property within the apartment was damaged. ECF No.
41-1 at 115-22.
Barrington testified that she was working the night shift at
a Circle K gas station off of Capital Circle and Centerville
Road on the night of the fire. Petitioner arrived driving a
taxicab and came into the store. Barrington remembered
Petitioner because he mentioned that she was alone and
referred to himself as the “creepy white guy.”
Barrington recalled that Petitioner bought gasoline and a
cigarette lighter. Barrington identified security camera
photos showing the cab and Petitioner. Id. at
Fire Department (“TFD”) Battalion Chief Rod Jones
testified that he responded to a call for a multi-residential
fire at Savannah Sound Apartments around 2:30 in the morning
of August 23, 2006. Ultimately, 25 responders were on the
scene throughout the night and the rest of the following day.
The building consisted of eight apartments, all occupied.
Id. at 127-32.
Investigator Frank Mohr testified that when he arrived on the
scene the front of the building and part of the roof were
burned. Waltz's apartment had smoke, fire, and water
damage, and the apartment above her had heavy damage. Most of
the roof was burned off. Waltz told Mohr that she believed
Petitioner may have had something to do with the fire. Mohr
contacted the state Fire Marshal and requested the assistance
of a K-9 trained to detect fire accelerant. Detective Jason
Roberts arrived and deployed the dog, which alerted on
several places in front of the building. Mohr collected
samples from those areas for analysis by the Fire
Marshal's lab. Photographs of the scene and fire damage
were admitted into evidence. The investigation showed that
the fire originated in the front exterior of the building.
The front of the building was burned “from the
foundation all the way up to the top and went into the
attic.” Some of the pine straw mulch outside of the
building was burned also. Mohr could not determine whether
the fire started on the building or in the pine straw.
Id. at 132-43.
Jason Roberts testified that he smelled gasoline when he
walked up to the building. The K-9 alerted in several
locations, and samples were taken. Roberts determined that
the fire originated on the exterior of the building and
worked its way up the wall to the second floor in the roof
area. He could not determine whether the fire started on the
building or on the ground next to the building. The K-9 was
alerting within three feet of the building. It was determined
that the fire was intentionally set and involved a
“significant amount” of accelerant. Even after
the building had been through fire suppression, there was a
significant amount of accelerant that the K-9 alerted to and
that “everybody could smell.” Roberts also went
to the taxicab yard and worked the K-9 through Cab No. 90,
which was the cab driven by Petitioner. The K-9 alerted on
the interior near the trunk area and in the trunk. Roberts
also collected samples from the cab for analysis.
Id. at 143-62.
Joseph Steadman of the Florida State Fire Marshal's
Office testified that when he arrived at the scene of the
fire he noticed a very strong odor consistent with gasoline.
Mohr and Roberts informed Steadman that they had identified a
suspect. Steadman contacted ATF Special Agent Visnovske to
assist with the investigation. Steadman went to the taxicab
yard. When Petitioner arrived he was taken into custody.
Id. at 177-78.
interviewed Petitioner at the Leon County Sheriff's
Office. When Steadman and Visnovske entered the interrogation
room where Petitioner had been waiting, they detected a
strong odor of gasoline. They advised Petitioner of his
Miranda rights, and Petitioner executed a written
waiver of his rights. Petitioner appeared nervous and had a
cough, which he said was due to childhood bronchitis.
Petitioner told the officers that he did not smoke except
occasionally when he is out at a bar but that it had been
several weeks since he had done that. He told the officers
about Waltz's injunction against him. Petitioner told the
officers that he had gotten gasoline on his clothing while
working on his motorcycle. He stated that he had taken the
gas tank off of the motorcycle and put it in the back of his
cab, and a valve on the bottom of the tank leaked. Steadman
subsequently went to Petitioner's house and inspected the
motorcycle. There was no indication that gasoline had leaked
from the tank. Id. at 178-84.
a break in the interview, the officers confronted Petitioner
with the video evidence from the Circle K store showing that
he had purchased gasoline and a lighter shortly before the
fire. Petitioner dropped his head and said “well,
I'm f***ed” and stated that he needed to speak with
Nichole in order to take care of some financial and personal
matters for her. Petitioner admitted that he was angry with
Waltz. He admitted that he bought gasoline for his cab and
put about 2 gallons of gasoline into a plastic bucket in the
trunk of the cab. Petitioner admitted that he purchased a
lighter. He became emotional and told the officers several
times that he dumped the gasoline on the grass by the
apartment and did not mean to burn the building. Id.
crime laboratory analysts testified that the submitted
samples from the fire scene and cab tested positive for
gasoline. Id. at 164-75, 195-205.
close of the state's case in chief, Cummings moved for a
judgment of acquittal on the arson count. Counsel argued that
the State had not established a prima facie case on
the intent element of the arson charge. The court denied the
motion, finding that there was sufficient circumstantial
evidence of intent to create a fact issue for the jury.
Id. at 218-24.
court conducted a colloquy with Petitioner regarding his
decision to testify on his own behalf. The court also
addressed the fact that the videotape of Petitioner's
interrogation was not admitted into evidence. Petitioner
stated that “I think it would help if we put it in, but
I think Mr. Cummings did a good job going over, I guess, what
I would have wanted the jury to see anyway.” Cummings
stated that there were “a lot of issues about the tape
that the Court doesn't know about, ” such as
statements by Petitioner regarding criminal charges in
Georgia and many comments about his relationship with Ms.
Waltz. The court explained that irrelevant matter could be
edited out. Petitioner stated “I don't want it in.
I was just saying I thought it could have helped, but Mr.
Cummings pointed out the same things that if they seen it, I
feel he accomplished the same thing.” The court
reiterated that the tape could be edited if Petitioner wanted
it admitted, and that if Petitioner did not want the tape
admitted he could not “complain later that your lawyer
was ineffective for not showing you the tape or not editing
it or not admitting it because [sic] sat right here and told
me you decided not to look at it, you decided to trust your
attorney, and that's fine to trust him, but these are
judgment calls he has made . . . . You can't second guess
him later, if you are sitting in prison and decide to look at
this tape. It will be too late, and that's all I need to
settle, is that you understand you are making an important
decision here.” Petitioner responded “yes,
ma'am.” Id. at 215-29.
called Nichole Waltz as a defense witness. Waltz testified
that Petitioner did not smell like gasoline when he came home
early in the morning after the fire. She testified that
Petitioner told her that “he had lit the ground on
fire” outside the apartment and did not know that the
building burned until later in the day when Waltz's
grandfather called to tell her. She testified that Petitioner
was “shocked” at the news. Id. at
testified that on the night of the fire he was drinking and
taking prescription medication for anxiety due to an
“earlier situation” with Barbara Waltz that had
upset him. He went to the Circle K and bought gasoline, a
soda, a candy bar, a small cigar, and a lighter. Petitioner
put gasoline in his cab and also put one-and-a-half to two
gallons of gasoline in a five-gallon bucket in his trunk.
Petitioner then drove to Waltz's apartment complex. He
testified that most of the gas spilled and there was maybe a
gallon left in the bucket. He poured the gas on the ground to
spell the word “bitch” at what he thought was a
safe distance away from the building. He testified that the
area where he poured the gas was about a foot-and- a-half to
two-and-a-half feet wide by one foot tall. He set the bucket
in front of the word, lit the word and bucket on fire, and
left. Petitioner denied pouring any gas on the building. He
started the fire between three and five feet from the
building at what he thought was a safe distance, “but I
was inebriated, so obviously I wasn't right.” He
described his actions later to Nichole as a “prank to
upset her mother.” Id. at 239-48.
cross-examination, Petitioner admitted that he initially lied
to investigators following his arrest. Petitioner testified
that he didn't know whether he told the investigators
that he spelled the word “bitch” in the grass
with the gasoline. He testified that he drank about eight rum
and cokes before deciding to go to Waltz's apartment and
start a fire. He was also taking Xanax. Id. at
248-54; ECF No. 41-2 at 255.
State called Lt. Steadman as a rebuttal witness. Steadman
testified that during his interview Petitioner never said he
used gasoline to spell the word “bitch” in front
of Waltz's apartment. ECF No. 41-2 at 2. No. additional
witnesses were called. Cummings did not renew his motion for
a judgment of acquittal at the close of all of the evidence.
to Petitioner's testimony, the court discussed the
proposed jury instructions. After conferring with Petitioner,
Mr. Cummings informed the court that Petitioner wanted a jury
instruction on arson, but not the lesser- included offense of
attempted arson, and a jury instruction on criminal mischief
causing more than $1000 in damage, a third-degree felony.
Petitioner stipulated that the damage to the building was at
least $100, 000. The court delivered the requested standard
jury instructions without objection by the defense. ECF 41-1
the jury was deliberating, the court conducted a colloquy
with Petitioner during which Petitioner stated that he was
satisfied with Cummings' services and there were no
witnesses or defenses that Petitioner asked him to
investigate that he failed or refused to investigate. ECF No.
42-2 at 45. The court asked Cummings if he had any concerns
about Petitioner's legal competency, and Cummings
responded that he had no such concerns, and that Petitioner
had been “properly screened” for competency and
for insanity at the time of the offense. Id. at
jury found Petitioner guilty of arson of a dwelling and
violation of a domestic violence injunction. Petitioner was
sentenced to a mandatory 30-year term as a prison releasee
reoffender. Id. at 50-52. Petitioner appealed,
arguing that the evidence was insufficient to convict him of
arson and that the jury instructions for arson were
incomplete and confusing to the jury. Id. at 58-88.
The First DCA affirmed, per curiam, without written
opinion, and denied rehearing. Id. at 118, 137.
sought postconviction relief. For purposes of this case, the
relevant state postconviction proceeding is Petitioner's
third amended Rule 3.850 postconviction motion, in which he
asserted 27 claims for relief. ECF No. 41-6 at 31-189; ECF
No. 41-7 at 1-41. The trial court (Judge Frank E. Sheffield)
entered a nonfinal order summarily denying postconviction
relief on Petitioner's Grounds 1-10, 12, 17, 21-25 and
27. The court set nine claims (Grounds 11, 13, 14, 15, 16,
18, 19, 20 and 26) for an evidentiary hearing. ECF No. 41-7
at 86-98. Petitioner filed a motion for disqualification and
recusal of Judge Sheffield, arguing that Judge Sheffield had
been an attorney of record appointed to represent Petitioner
for a two-month period while his criminal case was pending.
Judge Sheffield recused himself and following additional
recusals Petitioner's postconviction proceeding was
ultimately presided over by Judge James C. Hankinson. ECF No.
41-9 at 56-177. The court appointed postconviction counsel
for Petitioner, but subsequently discharged counsel on
Petitioner's motion. ECF 41-8 at 69. At the conclusion of
the evidentiary hearing, the court denied Petitioner's
remaining postconviction claims. ECF No. 41-9 at 171-77.
Petitioner appealed, and the First DCA affirmed the denial of
relief per curiam, without a written opinion. ECF
No. 41-10 at 145.
instant federal petition, which Respondent concedes is
timely, followed. Petitioner asserts nine claims for relief:
(1) His arrest on a Georgia warrant was unlawful and counsel
was ineffective for failing to move to suppress his
subsequent confession; (2) His confession was obtained in
violation of his Miranda rights; (3) Counsel was
ineffective with respect to the jury instructions on arson
and criminal mischief; (4) His conviction reflects
“fundamental error” because the evidence was
insufficient to convict him of arson; (5) Counsel was
ineffective for failing to raise a “relevant”
defense; (6) Florida's PRR sentencing statute is
unconstitutional; (7) Cumulative errors by counsel; (8) Trial
court error for failing to hold a Faretta-type
hearing on Petitioner's motion to discharge
postconviction counsel; and (9) Petitioner's
constitutional rights were violated when Judge Sheffield
summarily denied 18 of his postconviction claims. ECF No. 27.
Section 2254 Exhaustion Requirement
bringing a habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for
challenging his conviction, either on direct appeal or in a
state post-conviction motion. 28 U.S.C. § 2254(b)(1),
(c). Exhaustion requires that prisoners give the state courts
a “full and fair opportunity” to resolve all
federal constitutional claims by “invoking one complete
round of the State's established appellate review
process.” O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). To properly exhaust a federal claim, a
petitioner must “fairly present” the claim in
each appropriate state court, thereby affording the state
courts a meaningful opportunity to “pass upon and
correct alleged violations of its prisoners' federal
rights.” Baldwin v. Reese, 541 U.S. 27, 29
(2004) (quotation omitted).
petitioner fails to properly exhaust a federal claim in state
court, and it is obvious that the unexhausted claim would now
be procedurally barred under state law, the claim is
procedurally defaulted. Bailey v. Nagle, 172 F.3d
1299, 1303 (11th Cir. 1999). Federal habeas courts
are precluded from reviewing the merits of procedurally
defaulted claims unless the petitioner can show either (1)
cause for the failure to properly present the claim and
actual prejudice from the default, or (2) that a fundamental
miscarriage of justice would result if the claim were not
considered. Id. at 1302, 1306. A fundamental
miscarriage of justice exists “where a constitutional
violation has probably resulted in the conviction of one who
is actually innocent.” Ward v. Hall, 592 F.3d
1144, 1157 (11th Cir. 2010). To state a credible
claim of actual innocence, a petitioner must present new
reliable evidence that was not presented at trial showing
that “it is more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable
doubt.” Schlup v. Delo, 513 U.S. 298, 324
Section 2254 Standard of Review
28 U.S.C. § 2254(d)(2), a federal court may not grant a
state prisoner's application for a writ of habeas corpus
based on a claim already adjudicated on the merits in state
court unless that adjudication “resulted in a decision
that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.” Under § 2254(e)(1), “a
determination of a factual issue made by a State court shall
be presumed to be correct, ” and the petitioner
“shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.”
“‘[A] state-court factual determination is not
unreasonable merely because the federal habeas court would
have reached a different conclusion in the first
instance.'” Burt v. Titlow,
___U.S.___, 134 S.Ct. 10, 15 (2013) (quoting
Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841
legal findings, a petitioner is entitled to federal habeas
relief only if the state court's adjudication of the
merits of the federal claim “resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States.” § 2254(d)(1);
see Burt, 134 S.Ct. at 15 (standard for reviewing
claims of legal error by state courts is “highly
deferential”). This standard “recognizes a
foundational principle of our federal system: State courts
are adequate forums for the vindication of federal
rights.” Id. This highly deferential standard
carries special force in habeas cases asserting ineffective
assistance claims: “Especially where a case involves
such a common claim as ineffective assistance of counsel
under Strickland-a claim state courts have now
adjudicated in countless criminal cases for nearly 30
years-‘there is no intrinsic reason why the fact that a
man is a federal judge should make him more competent, or
conscientious, or learned . . . than his neighbor in the
state courthouse.'” Id. (quoting Stone
v. Powell, 428 U.S. 465, 494, n. 35, 96 S.Ct. 3037
of the deference afforded to the state courts'
adjudication of constitutional claims, “AEDPA erects a
formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court. AEDPA
requires ‘a state prisoner [to] show that the state
court's ruling on the claim being presented in federal
court was so lacking in justification that there was an error
. . . beyond any possibility for fairminded
disagreement.'” Id. at 15-16 (quoting
Harrington v. Richter, 562 U.S.____, 131 S.Ct. 770,
786-787 (2011). “‘If this standard is difficult
to meet'-and it is---‘that is because it was meant
to be.'” Id. at 16 (quoting
Harrington, 131 S.Ct. at 786). “We will not
lightly conclude that a State's criminal justice system
has experienced the ‘extreme malfunction' for which
federal habeas relief is the remedy.” Id.
(quoting Harrington, 131 S.Ct. at 786).
Claim (1): “Unlawful” Arrest and Ineffective
contends that he was unlawfully arrested pursuant to a
“non-extradition” warrant from Lowndes County,
Georgia. Petitioner argues that the Georgia warrant was
facially insufficient, and that his subsequent interrogation
by Fire Marshal Steadman resulted ...