United States District Court, N.D. Florida, Tallahassee Division
ORDER AND REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE.
cause is before the court on Petitioner's Second Amended
Petition, filed pursuant to 28 U.S.C. § 2254 (ECF No.
30). Respondent filed an answer (ECF No. 35) and relevant
portions of the state court record (see ECF No. 26).
The court provided Petitioner an opportunity to file a reply
(see ECF No. 36), but he has not done so.
case was referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2(B); see also 28 U.S.C. §
636(b)(1)(B), (C) and Fed.R.Civ.P. 72(b). After careful
consideration of the issues presented by the parties, it is
the opinion of the undersigned that no evidentiary hearing is
required for the disposition of this matter, Rule 8(a), Rules
Governing Section 2254 Cases. It is further the opinion of
the undersigned that the pleadings and attachments before the
court show that Petitioner is not entitled to relief.
BACKGROUND AND PROCEDURAL HISTORY
relevant aspects of the procedural background of this case
are established by the state court record (see ECF
No. 26). Petitioner was charged in the Circuit
Court in and for Leon County, Florida, No. 2008-CF-3112, with
four counts of kidnapping to facilitate a felony with a
firearm and four counts of armed robbery with a firearm (Ex.
A at 7-8). Petitioner was tried by a jury on all counts (Ex.
B). When the State rested its case, Petitioner's trial
counsel made a motion for judgment of acquittal
(“JOA”) on all counts (id. at 283). The
trial court granted the motion with respect to three of the
four robbery counts, on the ground that the evidence could
support only one robbery (id. at 285). The jury
found Petitioner guilty as charged of the four kidnapping
counts and the remaining armed robbery count (Ex. A at
58-62). On August 24, 2010, the court sentenced Petitioner to
concurrent terms of twenty-five (25) years in prison on all
counts, with a 10-year mandatory minimum and pre-sentence
jail credit of 727 days (Ex. A at 70-79, Ex. C). Petitioner
filed a motion to correct sentencing error, pursuant to Rule
3.800(b)(2) of the Florida Rules of Criminal Procedure (Ex. D
at 130-46). The trial court summarily denied the motion on
April 6, 2011 (id. at 147-50). Petitioner filed a
second Rule 3.800(b)(2) motion on April 19, 2011 (Ex. E at
280-84). On June 3, 2011, the trial court granted the motion
to the extent that Petitioner sought correction of his
Criminal Punishment Code scoresheet, but denied the motion to
the extent Petitioner sought resentencing (id. at
292-94). Petitioner filed a third rule 3.800(b)(2) motion on
July 7, 2011 (Ex. F at 298-301). The trial court summarily
denied the motion on July 13, 2011 (id. at 302-03).
through counsel, appealed the judgment and sentence to the
Florida First District Court of Appeal (“First
DCA”), No. 1D10-5081 (Ex. G). The First DCA affirmed
the judgment per curiam without written opinion on April 4,
2012 (Ex. J). Witherspoon v. State, 85 So.3d 490
(Fla. 1st DCA 2012) (Table). The mandate issued April 20,
2012 (Ex. K).
3, 2013, Petitioner's counsel filed a motion for
post-conviction relief in the state circuit court, pursuant
to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex.
O at 1-17). The state circuit court struck the motion as
facially insufficient, without prejudice to Petitioner's
filing an amended motion (id. at 35- 36, 195).
Petitioner filed an amended motion on December 21, 2013
(id. at 198- 204). The court held an evidentiary
hearing on October 23, 2015 (id. at 232-94). The
court issued a final order denying the amended Rule 3.850
motion on October 30, 2015, relying upon the reasons stated
on the record at the evidentiary hearing (id. at
221-22). Petitioner appealed the decision to the First DCA,
No. 1D15-4968 (Ex. P). The First DCA affirmed the decision
per curiam without written opinion on February 22, 2017 (Ex.
S). Witherspoon v. State, 230 So.3d 436 (Fla. 1st
DCA 2017) (Table). The mandate issued March 10, 2017 (Ex. T).
filed the instant federal habeas action on March 15, 2017
(ECF No. 1).
8, 2017, Petitioner filed a successive Rule 3.850 motion in
the state circuit court (Ex. U at 3-36). The circuit court
denied the motion as untimely and successive (id. at
37-40). Petitioner appealed the decision to the First DCA,
No. 1D17-3099 (see Ex. U at 41; see also
Ex. V). The First DCA affirmed the decision per curiam
without written opinion on October 6, 2017 (Ex. W).
Witherspoon v. State, 235 So.3d 824 (Fla. 1st DCA
2017) (Table). The mandate issued November 3, 2017 (Ex. X).
filed the Second Amended Petition in this § 2254
proceeding on May 14, 2018 (ECF No. 30).
STANDARD OF REVIEW
courts may grant habeas corpus relief for persons in state
custody pursuant to 28 U.S.C. § 2254, as amended by the
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Pub. L. 104-132, § 104, 110 Stat.
1214, 1218-19. Section 2254(d) provides, in relevant part:
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(1) 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;
(2) 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.
28 U.S.C. § 2254(d) (2011).
United States Supreme Court explained the framework for
§ 2254 review in Williams v. Taylor, 529 U.S.
362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The appropriate
test was described by Justice O'Connor as follows:
Under the “contrary to” clause, a federal habeas
court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this court on a
question of law or if the state court decides a case
differently than this Court has on a set of materially
indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant
the writ if the state court identifies the correct governing
legal principle from this Court's decisions but
unreasonably applies that principle to the facts of the
Id., 529 U.S. at 412-13 (O'Connor, J.,
the Williams framework, on any issue raised in a
federal habeas petition upon which there has been an
adjudication on the merits in a state court proceeding, the
federal court must first ascertain the “clearly
established Federal law, ” namely, “the governing
legal principle or principles set forth by the Supreme Court
at the time the state court render[ed] its decision.”
Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct.
1166, 155 L.Ed.2d 144 (2003). The law is “clearly
established” only when a Supreme Court holding at the
time of the state court decision embodies the legal principle
at issue. Thaler v. Haynes, 559 U.S. 43, 47, 130
S.Ct. 1171, 175 L.Ed.2d 1003 (2010); Woods v.
Donald, __ U.S. __, 135 S.Ct. 1372, 1376, 191 L.Ed.2d
464 (2015) (“We have explained that clearly established
Federal law for purposes of § 2254(d)(1) includes only
the holdings, as opposed to the dicta, of this Court's
decisions.” (internal quotation marks and citation
identifying the governing legal principle(s), the federal
court determines whether the state court adjudication is
contrary to the clearly established Supreme Court case law.
The adjudication is not contrary to Supreme Court precedent
merely because it fails to cite to that precedent. Rather,
the adjudication is “contrary” only if either the
reasoning or the result contradicts the relevant Supreme
Court cases. Early v. Packer, 537 U.S. 3, 8, 123
S.Ct. 362, 154 L.Ed.2d 263 (2002) (“Avoiding th[e]
pitfalls [of § 2254(d)(1)] does not require citation to
our cases-indeed, it does not even require awareness of our
cases, so long as neither the reasoning nor the result of the
state-court decision contradicts them.”). Where there
is no Supreme Court precedent on point, the state court's
conclusion cannot be contrary to clearly established federal
law. See Woods, 135 S.Ct. at 1377 (holding, as to
claim that counsel was per se ineffective in being absent
from the courtroom for ten minutes during testimony
concerning other defendants: “Because none of our cases
confront the specific question presented by this case, the
state court's decision could not be contrary to any
holding from this Court.” (internal quotation marks and
citation omitted)). If the state court decision is contrary
to clearly established federal law, the federal habeas court
must independently consider the merits of the
petitioner's claim. See Panetti v. Quarterman,
551 U.S. 930, 954, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).
“contrary to” clause is not satisfied, the
federal habeas court next determines whether the state court
“unreasonably applied” the governing legal
principles set forth in the Supreme Court's cases. The
federal court defers to the state court's reasoning
unless the state court's application of the legal
principle(s) was “objectively unreasonable” in
light of the record before the state court.
Williams, 529 U.S. at 409; see Holland v.
Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d
683 (2004) (per curiam). In applying this standard, the
Supreme Court has emphasized:
When reviewing state criminal convictions on collateral
review, federal judges are required to afford state courts
due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong. Federal
habeas review thus exists as “a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through
appeal.” Harrington, supra, at
102-103, 131 S.Ct. 770 (internal quotation marks omitted).
Woods, 135 S.Ct. at 1376 (quoting Harrington v.
Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624
2254(d) also allows federal habeas relief for a claim
adjudicated on the merits in state court where 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.” 28
U.S.C. § 2254(d)(2). The “unreasonable
determination of the facts” standard is implicated only
to the extent the validity of the state court's ultimate
conclusion is premised on unreasonable fact finding.
See Gill v. Mecusker, 633 F.3d 1272, 1292
(11th Cir. 2011). As with the “unreasonable
application” clause, the federal court applies an
objective test. Miller-El v. Cockrell, 537 U.S. 322,
340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (holding that a
state court decision based on a factual determination
“will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented
in the state court proceeding.”). Federal courts
“may not characterize . . . state-court factual
determinations as unreasonable merely because we would have
reached a different conclusion in the first instance.”
Brumfield v. Cain, __ U.S. __, 135 S.Ct. 2269, 2277,
192 L.Ed.2d 356 (2015) (quotation marks omitted).
performing review under § 2254(d), the federal court
presumes that all factual determinations made by the state
court are correct. 28 U.S.C. § 2254(e)(1). The
petitioner bears “the burden of rebutting the
presumption of correctness by clear and convincing
evidence.” Id.; see, e.g.,
Miller-El, 537 U.S. at 340 (explaining that a
federal court can disagree with a state court's factual
finding and, when guided by the AEDPA, “conclude the
decision was unreasonable or that the factual premise was
incorrect by clear and convincing evidence”). Neither
the Supreme Court nor the Eleventh Circuit has interpreted
how § 2254(d)(2) and § 2254(e)(1) interact in the
context of fact-based challenges to state court
adjudications. See Cave v. Sec'y for Dep't of
Corr., 638 F.3d. 739 (11th Cir. 2011). However, the
Eleventh Circuit has declined to grant habeas relief under
§ 2254(d)(2) in the context of a state appellate
court's summary affirmance, where it found that the
validity of the state court decision was not premised on the
trial court's unreasonable fact finding, and that the
petitioner failed to demonstrate “by clear and
convincing evidence that the record reflect[ed] an
insufficient factual basis for affirming the state
court's decision.” Gill, 633 F.3d at 1292.
the federal habeas court finds that the petitioner satisfied
the AEDPA and § 2254(d), does the court take the final
step of conducting an independent review of the merits of the
petitioner's claims. See Panetti, 551 U.S. at
954. Even then, the writ will not issue unless the petitioner
shows that he is in custody “in violation of the
Constitution or laws and treaties of the United
States.” 28 U.S.C. § 2254(a). “If this
standard is difficult to meet, that is because it was meant
to be.” Richter, 562 U.S. at 102.
EXHAUSTION AND PROCEDURAL DEFAULT
It is a
long-standing prerequisite to the filing of a federal habeas
corpus petition that the petitioner exhaust available state
court remedies, see 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) (quoting Picard v. Connor, 404 U.S. 270, 275,
92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (citation omitted)). To
satisfy the exhaustion requirement, the petitioner must
“fairly present” his claim in each appropriate
state court, alerting that court to the federal nature of the
claim. Duncan, 513 U.S. at 365-66;
O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard, 404 U.S.
Supreme Court has provided lower courts with guidance for
determining whether a habeas petitioner has met the
“fair presentation” requirement. In Picard v.
Connor, the Court held that, for purposes of exhausting
state remedies, a claim for relief in habeas corpus must
include reference to a specific federal constitutional
guarantee, as well as a statement of the facts which entitle
the petitioner to relief. 404 U.S. at 277. In announcing that
“the substance of a federal habeas corpus claim must
first be presented to the state courts, ” id.,
404 U.S. at 278, the Court rejected the contention in that
case that the petitioner satisfied the exhaustion requirement
by presenting the state courts only with the facts necessary
to state a claim for relief.
the Court has indicated that it is not enough that a
petitioner makes a general appeal to a constitutional
guarantee as broad as due process to present the
“substance” of such a claim to a state court.
Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74
L.Ed.2d 3 (1982). In Anderson, the Sixth Circuit
Court of Appeals granted the habeas petition on the ground
that a jury instruction violated due process because it
obviated the requirement that the prosecutor prove all the
elements of the crime beyond a reasonable doubt. 459 U.S. at
7 (citing Sandstrom v. Montana, 442 U.S. 510, 99
S.Ct. 2450, 61 L.Ed.2d 39 (1979)). The only manner in which
the habeas petitioner cited federal authority was by
referring to a state court decision in which “the
defendant . . . asserted a broad federal due process right to
jury instructions that properly explain state law.”
Anderson, 459 U.S. at 7. On review by the Supreme
Court, the Court expressed doubt that a defendant's
citation to a state-court decision predicated solely on state
law was sufficient to fairly apprise a reviewing court of a
potential federal claim merely because the defendant in the
cited case advanced a federal claim. Id.,
459 U.S. at 7 & n.3. Furthermore, the Court clarified
that such a citation was obviously insufficient when the
record satisfied the federal habeas court that the federal
claim asserted in the cited case was not the same as the
federal claim on which federal habeas relief was sought.
later, the Supreme Court readdressed the “fair
presentation” requirement in Duncan v. Henry,
513 U.S. 364. The Duncan Court strictly construed
the exhaustion requirement so as to mandate that, if state
and federal constitutional law overlap in their applicability
to a petitioner's claim, the petitioner must raise his
issue in terms of the applicable federal right in state court
in order to obtain federal review of the issue. The Supreme Court
explained, “[i]f a habeas petitioner wishes to claim
that an evidentiary ruling at a state court trial denied him
the due process of law guaranteed by the Fourteenth
Amendment, he must say so, not only in federal, but in state
court.” Duncan, 513 U.S. at 365-66.
Baldwin v. Reese, the Supreme Court again focused
upon the requirement of “fair presentation, ”
holding that “ordinarily a state prisoner does not
‘fairly present' a claim to a state court if that
court must read beyond a petition or a brief (or a similar
document) that does not alert it to the presence of a federal
claim in order to find material, such as a lower court
opinion in the case, that does so.” 541 U.S. 27, 32,
124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). The Baldwin
court commented that “[a] litigant wishing to raise a
federal issue can easily indicate the federal law basis for
his claim in a state-court petition or brief, for example, by
citing in conjunction with the claim the federal source of
law on which he relies or a case deciding such a claim on
federal grounds, or by simply labeling the claim
‘federal.'” Id., 541 U.S. at 32.
With regard to this language, the Eleventh Circuit explained
in McNair v. Campbell, 416 F.3d 1291 (11th Cir.
If read in a vacuum, this dicta might be thought to create a
low floor indeed for petitioners seeking to establish
exhaustion. However, we agree with the district court that
this language must be “applied with common sense and in
light of the purpose underlying the exhaustion requirement[:]
‘to afford the state courts a meaningful opportunity to
consider allegations of legal error without interference from
the federal judiciary.'” McNair [v.
Campbell], 315 F.Supp.2d at 1184 (quoting Vasquez v.
Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 620, 88
L.Ed.2d 598 (1986)). This is consistent with settled law
established by the Supreme Court. . . . We therefore hold
that “‘[t]he exhaustion doctrine requires a
habeas applicant to do more than scatter some makeshift
needles in the haystack of the state court
416 F.3d at 1302-03 (citations omitted).
issue that was not properly presented to the state court and
which can no longer be litigated under state procedural rules
is considered procedurally defaulted, that is, procedurally
barred from federal review. See Bailey v. Nagle, 172
F.3d 1299, 1302-03 (11th Cir. 1999). This court will also
consider a claim procedurally defaulted if it was presented
in state court and rejected on the independent and adequate
state ground of procedural bar or default. See Coleman v.
Thompson, 501 U.S. 722, 734-35 & n.1, 111 S.Ct.
2546, 115 L.Ed.2d 640 (1991); Caniff v. Moore, 269
F.3d 1245, 1247 (11th Cir. 2001) (“[C]laims that have
been held to be procedurally defaulted under state law cannot
be addressed by federal courts.”); Chambers v.
Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998)
(applicable state procedural bar should be enforced by
federal court even as to a claim which has never been
presented to a state court); accord Tower v.
Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker
v. Dugger, 876 F.2d 1470 (11th Cir. 1990), rev'd
on other grounds, 498 U.S. 308, 111 S.Ct. 731, 112
L.Ed.2d 812 (1991). In the first instance, the federal court
must determine whether any future attempt to exhaust state
remedies would be futile under the state's procedural
default doctrine. Bailey, 172 F.3d at 1303. In the
second instance, a federal court must determine whether the
last state court rendering judgment clearly and expressly
stated its judgment rested on a procedural bar. Id.
A federal court is not required to honor a state's
procedural default ruling unless that ruling rests on
adequate state grounds independent of the federal question.
See Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038,
103 L.Ed.2d 308 (1989). The adequacy of a state procedural
bar to the assertion of a federal question is itself a
federal question. Lee v. Kemna, 534 U.S. 362, 122
S.Ct. 877, 885, 151 L.Ed.2d 820 (2002).
Eleventh Circuit has set forth a three-part test to determine
whether a state court's procedural ruling constitutes an
independent and adequate state rule of decision. Judd v.
Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). First, the
last state court rendering judgment must clearly and
expressly state it is relying on state procedural rules to
resolve the federal claim. Second, the state court's decision
on the procedural issue must rest entirely on state law
grounds and not be intertwined with an interpretation of
federal law. Id. Third, the state procedural rule
must be adequate. Id. The adequacy requirement has
been interpreted to mean the rule must be firmly established
and regularly followed, that is, not applied in an arbitrary
or unprecedented fashion. Id.
overcome a procedural default, the petitioner must show cause
for the default and prejudice resulting therefrom, or that
the federal court's failure to reach the merits of the
claim would result in a fundamental miscarriage of justice.
Tower, 7 F.3d at 210; Parker, 876 F.2d
1470. “For cause to exist, an external impediment,
whether it be governmental interference or the reasonable
unavailability of the factual basis for the claim, must have
prevented petitioner from raising the claim.”
McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct.
1454, 113 L.Ed.2d 517 (1991) (quoting Murray v.
Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986)). To satisfy the miscarriage of justice exception,
the petitioner must show that “a constitutional
violation has probably resulted in the conviction of one who
is actually innocent.” Schlup v. Delo, 513
U.S. 298, 327, 115 S.Ct. 85, 130 L.Ed.2d 808 (1995).
“To establish the requisite probability, the petitioner
must show that it is more likely than not that no reasonable
juror would have convicted him.” Schlup, 513
U.S. at 327. Further:
a substantial claim that constitutional error has caused the
conviction of an innocent person is extremely rare. To be
credible, such a claim requires [a] petitioner to support his
allegations of constitutional error with new reliable
evidence-whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence-that was not presented at trial.
Id. Although a habeas petitioner asserting a
convincing claim of actual innocence need not prove diligence
to overcome a procedural bar, timing is a factor relevant in
evaluating the reliability of a petitioner's proof of
innocence. See McQuiggin v. Perkins, __ U.S. __, 133
S.Ct. 1924, 1935, 185 L.Ed.2d 1019 (2013). As the Court
stated in Schlup, “[a] court may consider how
the timing of the submission and the likely credibility of [a
petitioner's] affiants bear on the probable reliability
of . . . evidence [of actual innocence].” 513 U.S. at
332; see also House v. Bell, 547 U.S. 518, 537, 126
S.Ct. 2064, 165 L.Ed.2d 1 (2006).
this framework, the court will review Petitioner's
Ground One: “Where [sic] the jury instruction under
“A Principle” [sic] was read to the jury and the
Petitioner sentenced and convicted as such violates due
process and equal protection.”
contends he was denied due process and equal protection when
the trial court read to the jury, without objection from
defense counsel, the instruction on principal liability (ECF
No. 30 at 7-8). Petitioner contends the jury instruction was
given in error, because the charging document did not charge
him as a principal (id.). Petitioner asserts if the
instruction on principal liability had not been given, the
jury possibly would not have found him guilty of at least
one, if not all, charges (id.). Petitioner asserts
he presented Ground One in his Rule 3.850 motion
(id. at 9).
contends to the extent Petitioner presents a due process
claim based upon alleged trial court error, the claim was not
presented to the state courts and is thus unexhausted (ECF
No. 35 at 23). Respondent argues Petitioner presented, as
Issue III on direct appeal, a claim that the jury instruction
on principal liability resulted in an ambiguous verdict, but
Petitioner did not present the claim as a federal
constitutional issue (id.).
further contends to the extent Petitioner presents a claim of
ineffective assistance of trial counsel (“IATC”),
based upon defense counsel's failure to object to the
principal instruction, Petitioner exhausted the claim by
presenting it in Ground 3 of his Rule 3.850 motion (ECF No.
35 at 24). Respondent argues the state court's
adjudication of the IATC claim was not contrary to or an
unreasonable application of clearly established federal law,
nor was it based upon an unreasonable determination of facts
in light of the evidence in the state court record
(id. at 24-26).
did not file a reply, and thus did not respond to
Respondent's exhaustion and procedural default arguments
with respect to the claim of trial court error.
Federal Due Process Claim Based Upon Trial Court
state court record supports Respondent's exhaustion
argument. Petitioner presented the following argument as
Issue III on direct appeal
The entry of judgment of conviction for armed kidnapping and
armed robbery was fundamentally erroneous because the
jury's verdict was ambiguous and therefore must be
construed to support a finding of guilt for simple kidnapping
and simple robbery.
(Ex. G at 28-29). Petitioner argued that to support a
conviction for armed kidnapping and armed robbery, the jury
must make a finding that the defendant had actual possession
of a weapon during the commission of the crime (id.
at 28). Petitioner argued that the jury instruction on
principal liability created an ambiguity in the jury's
verdict, because it was unclear whether the jury found that
Petitioner actually possessed a weapon during commission of
the crimes, or whether he had “actual possession”
because his principal had actual possession of a firearm
(id.). Petitioner argued that the trial court was
required to resolve ambiguity in the verdict in the
defendant's favor, so the trial court should have
construed it as a verdict of guilt for simple kidnapping and
simple robbery (id. at 28-29).
substantive argument did not cite in conjunction with his
claim a federal source of law on which he relied, nor did he
label the claim “federal” or otherwise indicate a
federal law basis for his claim. Petitioner did not make even
a passing reference to due process, fundamental fairness, a
fair trial, federal law, or the United States Constitution.
Similarly, Petitioner did not cite a single federal case; and
the sole state case he cited did not cite to, or decide the
claim on, federal grounds. The undersigned concludes that
Petitioner did not “fairly present” a federal due
process or equal protection claim in the state courts, as he
now does in Ground One of his federal petition.
is now barred by state procedural rules from returning to
state court to present the claim of trial court error as a
federal constitutional claim. See Hall v. State, 823
So.2d 757, 763 (Fla. 2002) (“[A]n issue not raised in
an initial brief is deemed abandoned”); Fla. R. Crim.
P. 3.850(c) (“This rule does not authorize relief based
on grounds that could have or should have been raised at
trial and, if properly preserved, on direct appeal of the
judgment and sentence.”). Because further relief is not
available in the state courts, the due process and equal
protection claim is considered procedurally defaulted.
Petitioner does not allege he is entitled to federal review
of the procedurally defaulted claim through any recognized
exception to the procedural bar. Therefore, Petitioner is not
entitled to relief on this claim.
previously discussed, Respondent concedes Petitioner
exhausted the IATC claim asserted in Ground One.
Clearly Established Federal Law
standard for evaluating claims of ineffective assistance of
counsel is set forth in Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To
obtain relief under Strickland, Petitioner must show
(1) deficient performance by counsel and (2) a reasonable
probability that, but for counsel's deficient
performance, the result of the proceeding would have been
different. Id. at 687-88. If Petitioner fails to
make a showing as to either performance or prejudice, he is
not entitled to relief. Id. at 697.
focus of inquiry under the performance prong of
Strickland is whether counsel's assistance was
reasonable considering all the circumstances and under
prevailing professional norms.” Strickland,
466 U.S. at 688-89, 691. “The petitioner's burden
to prove, by a preponderance of the evidence, that
counsel's performance was unreasonable is a heavy
one.” Jones v. Campbell, 436 F.3d 1285, 1293
(11th Cir. 2006) (citing Chandler v. United States,
218 F.3d 1305, 1313 (11th Cir. 2000) (en banc)).
“Judicial scrutiny of counsel's performance must be
highly deferential, ” and courts should make every
effort to “eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.” Id. at
689. “[T]here are no ‘absolute rules'
dictating what reasonable performance is . . . .”
Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir.
2005) (quoting Chandler, 218 F.3d at 1317). Indeed,
“‘[a]bsolute rules would interfere with
counsel's independence-which is also constitutionally
protected-and would restrict the wide latitude counsel have
in making tactical decisions.'” Id.
(quoting Putman v. Head, 268 F.3d 1223, 1244 (11th
record is not complete regarding counsel's actions,
“then the courts should presume ‘that what the
particular defense lawyer did at trial-for example, what
witnesses he presented or did not present-were acts that some
lawyer might do.” Jones, 436 F.3d at 1293
(citing Chandler, 218 F.3d at 1314-15 n.15).
“Even if many reasonable lawyers would not have done as
defense counsel did at trial, no relief can be granted on
ineffectiveness grounds unless it is shown that no reasonable
lawyer, in the circumstances, would have done so.”
Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
Counsel's performance is deficient only if it is
“outside the wide range of professional
competence.” Jones, 436 F.3d at 1293 (citing
Strickland, 466 U.S. at 690); Lancaster v.
Newsome, 880 F.2d 362, 375 (11th Cir. 1989) (emphasizing
that petitioner was “not entitled to error-free
the prejudice prong of the Strickland standard,
Petitioner's burden of demonstrating prejudice is high.
See Wellington v. Moore, 314 F.3d 1256, 1260 (11th
Cir. 2002). To establish prejudice, Petitioner must show
“that every fair-minded jurist would conclude
‘that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.'” Jones
v. GDCP Warden, 753 F.3d 1171, 1184 (11th Cir. 2014)
(quoting Strickland, 466 U.S. at 694). “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome, ” not that
counsel's conduct more likely than not altered the
outcome of the proceeding. Id. (citation omitted).
And Petitioner must show that the likelihood of a different
result is substantial, not just conceivable. Williamson
v. Fla. Dep't of Corr., 805 F.3d 1009, 1016 (11th
Cir. 2015) (citing Richter, 562 U.S. at 112).
“When a defendant challenges a conviction, the question
is whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt
respecting guilt.” Strickland, 466 U.S. at
695. The prejudice assessment does “not depend on the
idiosyncracies [sic] of the particular decisionmaker, ”
as the court should presume that the judge or jury acted
according to law. Id. at 695. Further, when the
claimed error of counsel occurred at the guilty stage of
trial (instead of on appeal), Strickland prejudice
is gauged against the outcome of trial, not on appeal.
See Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir.
2006) (citing Strickland, 466 U.S. at 694-95).
when a district court considers a habeas petition, the state
court's findings of historical facts in the course of
evaluating an ineffectiveness claim are subject to the
presumption of correctness, while the performance and
prejudice components are mixed questions of law and fact.
Strickland, 466 U.S. at 698; Collier v.
Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999).
“Surmounting Strickland's high bar is
never an easy task.” Padilla v. Kentucky, 559
U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
“Establishing that a state court's application of
Strickland was unreasonable under § 2254(d) is all the
more difficult.” Richter, 131 S.Ct. at 788. As
the Richter Court explained:
The standards created by Strickland and §
2254(d) are both “highly deferential, ” and when
the two apply in tandem, review is “doubly” so.
The Strickland standard is a general one, so the
range of reasonable applications is substantial. Federal
habeas courts must guard against the danger of equating
unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland's deferential standard.
Id. (citations omitted).
Federal Review of State Court Decision
was represented by counsel throughout the Rule 3.850
proceedings. As Ground 3 of Petitioner's Rule 3.850
motion, he claimed that trial counsel was ineffective for
failing to properly object to the jury instruction on
principal liability (Ex. J at 8-10). Petitioner alleged he
was charged as the actual perpetrator of the offenses charged
in the Information. He alleged after the State rested its
case, the prosecutor requested a jury instruction on
principal liability. Petitioner alleged trial counsel should
have argued that it was erroneous to instruct the jury on
principal liability, because the Information did not charge a
principal theory, and the trial evidence did not support it.
Petitioner further alleged trial counsel should have objected
to the verdict, on the ground that it did not indicate on
which alternative legal basis ...