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Witherspoon v. Inch

United States District Court, N.D. Florida, Tallahassee Division

May 14, 2019

WILLIAM WITHERSPOON, Petitioner,
v.
MARK S. INCH, [1] Respondent.

          ORDER AND REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE.

         This 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.

         The 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.

         I. BACKGROUND AND PROCEDURAL HISTORY

         The relevant aspects of the procedural background of this case are established by the state court record (see ECF No. 26).[2] 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).

         Petitioner, 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).

         On July 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).

         Petitioner filed the instant federal habeas action on March 15, 2017 (ECF No. 1).

         On May 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).

         Petitioner filed the Second Amended Petition in this § 2254 proceeding on May 14, 2018 (ECF No. 30).

         II. STANDARD OF REVIEW

         Federal 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; or
(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).

         The 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 prisoner's case.

Id., 529 U.S. at 412-13 (O'Connor, J., concurring).

         Employing 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 omitted)).

         After 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).

         If the “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 (2011)).

         Section 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).

         When 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.

         Only if 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.

         III. 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. at 277-78.

         The 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.

         Additionally, 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. Id.

         Years 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.[3] 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.

         In 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. 2005):

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 record.'”

416 F.3d at 1302-03 (citations omitted).[4]

         An 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).

         The 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.[5] 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.

         To 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).

         Within this framework, the court will review Petitioner's claims.

         IV. PETITIONER'S CLAIMS

         A. 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.”

         Petitioner 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).

         Respondent 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.).

         Respondent 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).

         Petitioner 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.

         1. Federal Due Process Claim Based Upon Trial Court Error

         The 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).

         Petitioner's 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.

         Petitioner 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.

         2. IATC

         As previously discussed, Respondent concedes Petitioner exhausted the IATC claim asserted in Ground One.

         a. Clearly Established Federal Law

         The 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.

         The 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 Cir. 2001)).

         If the 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 representation”).

         As to 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).

         Finally, 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).

         b. Federal Review of State Court Decision

         Petitioner 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 ...


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