United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.
cause is before the court on Petitioner's amended
petition for writ of habeas corpus and supporting memorandum,
filed pursuant to 28 U.S.C. § 2254 (ECF Nos. 5, 6).
Respondent filed an answer and relevant portions of the state
court record (ECF No. 27). Petitioner filed a reply (ECF No.
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 all 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. 27). Petitioner was charged in the Circuit
Court in and for Escambia County, Florida, No. 2011-CF-417,
with one count of attempted armed kidnapping with a weapon
(Count 1), one count of aggravated assault by threat with a
firearm (Count 2), and one count of felony failure to appear
(Count 3) (Ex. B1 at 3). On August 17, 2011, a jury trial was
held on Counts 1 and 2; Count 3 was severed for trial (Ex. B2
at 106-200, Ex. B3 at 201-364). At the conclusion of trial,
the jury found Petitioner guilty of attempted armed
kidnapping as charged, with specific findings that Petitioner
carried or used a weapon, actually possessed a firearm, and
discharged a firearm during commission of the offense (Ex. B1
at 36-37). The jury also found Petitioner guilty of
aggravated assault as charged, with specific findings that he
carried and actually possessed a firearm, and discharged a
firearm during commission of the offense (id.). On
September 28, 2011, the court sentenced Petitioner to
concurrent mandatory minimum terms of twenty (20) years in
prison, with jail credit of 137 days (id. at 41-84).
The State filed a nolle prosequi on Count 3 on September 30,
2011 (id. at 87).
through counsel, appealed the judgment to the Florida First
District Court of Appeal (“First DCA”), No.
1D11-5564 (Ex. B4). The First DCA affirmed the judgment per
curiam without written opinion on April 17, 2013 (Ex. B7).
Stallworth v. State, 110 So.3d 445 (Fla. 1st DCA
2013) (Table). The mandate issued May 3, 2013 (Ex. B8). On
June 5, 2013, the First DCA denied Petitioner's motion
for rehearing and/or written opinion (Ex. B10).
October 30, 2013, Petitioner filed a motion for
post-conviction relief and supporting memorandum in the state
circuit court, pursuant to Rule 3.850 of the Florida Rules of
Criminal Procedure (Ex. C1 at 96-113). The court granted a
limited evidentiary hearing on two of Petitioner's five
claims (Grounds Two and Four), and appointed counsel for
Petitioner (id. at 120-21). At the commencement of
the evidentiary hearing on March 17, 2015, Petitioner's
counsel announced they were abandoning Ground Four, and would
proceed only on Ground Two (id. at 136-59). On June
30, 2015, the circuit court issued an order denying
Petitioner's Rule 3.850 motion (id. at 160-65).
Petitioner appealed the decision to the First DCA, No.
1D15-3657 (Ex. C2). The First DCA affirmed the lower
court's decision per curiam without written opinion on
June 21, 2016 (Ex. C5). Stallworth v. State, 193
So.3d 891 (Fla. 1st DCA 2016) (Table). The mandate issued
July 19, 2016 (Ex. C6).
August 2, 2016, Petitioner filed a “Motion for
Evidentiary Hearing Alleging Extraordinary
Circumstances” in the state circuit court (Ex. D1 at
1-4). The court summarily denied the motion on January 31,
2017 (id. at 10-11). Petitioner appealed the
decision to the First DCA, No. 1D17-0843 (Ex. D2). The First
DCA affirmed the lower court's decision per curiam
without written opinion on August 25, 2017 (Ex. D4).
Stallworth v. State, 232 So.3d 987 (Fla. 1st DCA
2017) (Table). The mandate issued September 22, 2017 (Ex.
filed the instant federal habeas action on December 19, 2017
(ECF No. 1).
STANDARD OF REVIEW
courts may grant habeas corpus relief for persons in state
custody pursuant to 28 U.S.C. § 2254. 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).
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. See Early v. Packer, 537 U.S. 3, 8, 123
S.Ct. 362, 154 L.Ed.2d 263 (2002). 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
§ 2254(d), does the court take the final step of
conducting an independent review of the merits of the
petitioner's claim. 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.
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 and 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.
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 federal court
“lacks jurisdiction to entertain a federal claim on
review of a state court judgment, if that judgment rests on a
state law ground that is both independent of the merits of
the federal claim and an adequate basis for the court's
decision.” Foster v. Chatman, - U.S. -, 136
S.Ct. 1737, 1745, 195 L.Ed.2d 1 (2016) (internal quotation
marks and citation omitted). Even where a state court has
ruled in the alternative, addressing both the independent
state procedural ground and the merits of the federal claim,
the federal court should apply the state procedural bar and
decline to reach the merits of the claim. Alderman v.
Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) (citing
Harris, 489 U.S. at 264 n.10).
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).
this framework, the court will review Petitioner's
A. Ground One: “Ineffective assistance of counsel
for failing to object to State's recall of victim to
rebut the testimony of defense witness Jasper Hurd.
Petitioner claims counsel was deficient because he objected
on an incorrect basis.”
Ground Three: “Ineffective assistance of counsel
(trial) for failing to object to verdict form and failing to
request a special interrogatory be added for the jury to
deliberate and find that the discharge was
Ground Four: “Ineffective assistance of counsel for
failing to investigate and call witness Ricky Henderson to
testify at trial.”
Ground One, Petitioner contends his trial counsel was
deficient for failing to properly object when the State
recalled the victim to rebut the testimony of defense witness
Jasper Hurd (ECF No. 5 at 5, 15-18). Petitioner acknowledges
defense counsel objected to the rebuttal testimony, but
Petitioner contends counsel objected on the wrong grounds
(id.). Petitioner also contends defense counsel
should have requested a Richardson hearing, because
the victim's rebuttal testimony had not been disclosed to
the defense (id.). Petitioner further alleges that
if defense counsel had deposed the victim and Jasper Hurd,
counsel would have avoided “opening the door” to
the victim's rebuttal testimony (id.).
Petitioner contends absent counsel's errors, the outcome
of trial would have been different (id.).
Ground Three, Petitioner contends the mandatory-minimum
provision of his sentences was not appropriate absent a jury
finding that the discharge of the firearm was intentional
(ECF No. 5 at 8, 21-23). Petitioner contends defense counsel
should have objected to the verdict form and requested a
special interrogatory requiring the jury to find whether the
discharge was intentional (id.).
Ground Four, Petitioner contends defense counsel should have
presented testimony from Ricky Henderson (ECF No. 5 at 10,
24-27). Petitioner acknowledges that on the morning of trial,
he “reluctantly agreed” to proceed without Mr.
Henderson's testimony, but Petitioner asserts his
agreement was based upon defense counsel's misadvice
(id.). Petitioner contends absent counsel's
failure to present Henderson's testimony, and
counsel's misadvice, there is a reasonable probability
the result of trial would have been different (id.).
asserts an exhaustion defense as to these three claims (ECF
No. 27 at 8-11). Respondent contends Petitioner presented the
claims in his Rule 3.850 motion, but he abandoned Ground Four
in the circuit court proceedings, and he abandoned Grounds
One and Three in the post-conviction appeal (id.).
Petitioner's reply, he insists he did not abandon any of
his claims; therefore, they are not procedurally barred from
federal review (see ECF No. 31 at 1-6). Petitioner
additionally contends this court should review Ground Four
(i.e., trial counsel was ineffective for failing to call
Ricky Henderson as a defense witness) due to
“extraordinary circumstances” (id.).
Florida Rules of Appellate Procedure provide that in a case
where a movant's Rule 3.850 motion is denied after an
evidentiary hearing was held on one or more claims, as was
the case here, a movant wishing to appeal the denial of his
motion must file an initial brief. See Fla. R. App.
P. 9.141(b)(3). The movant must present argument on all
issues for which he seeks appellate review in his initial
brief, regardless of whether the claim was summarily denied
or litigated at the evidentiary hearing. See Kelley v.
State, 109 So.3d 811, 812 n.1 (Fla. 1st DCA 2013);
Prince v. State, 40 So.3d 11 (Fla. 4th DCA 2010);
Pennington v. State, 34 So.3d 151, 153 n.1 (Fla. 1st
DCA 2010) (briefing is required in appeal from non-summary
denial of Rule 3.850 motion); Hammond v. State, 34
So.3d 58 (Fla. 4th DCA 2010) (claim for which appellant did
not present argument, or for which he provided only
conclusory argument, was insufficiently presented for
appellate review, regardless of whether claim was among those
claims litigated at evidentiary hearing or among those claims
summarily denied by trial court); Williams v. State,
24 So.3d 1252 (Fla. 1st DCA 2009) (where appellant received
evidentiary hearing on some of his post-conviction claims and
others were summarily denied, appellate court would review
only those summarily denied claims which movant argued in
Florida procedural rule deeming as waived or abandoned those
claims for which an appellant has not presented any argument
in his initial brief, even when the post-conviction
evidentiary hearing was limited in scope to some but not all
post-conviction claims and the appellant's insufficiently
presented claims were summarily denied by the trial court, is
a firmly established and regularly followed procedural rule
for purposes of federal habeas. See, e.g.,
Granberry v. Tucker, No. 5:10cv129/RH/EMT, 2012 WL
2891245, at *26 (N.D. Fla. May 4, 2012), Report and
Recommendation Adopted, 2012 WL 2890780 (N.D. Fla. July
14, 2012) (nonbinding but recognized as persuasive
authority); Daniels v. Tucker, No. 5:09cv328/RS/EMT,
2011 WL 7153921, at *18 (N.D. Fla. Nov. 22, 2011), Report
and Recommendation Adopted, 2012 WL 379590 (N.D. Fla.
Feb. 3, 2012); Stoudmire v. Tucker, No.
3:09cv48/MCR/EMT, 2011 WL 5426239, at *9-11 (N.D. Fla. Aug.
30, 2011), Report and Recommendation Adopted, 2011
WL 5442091 (N.D. Fla. Nov. 9, 2011); Green v.
McNeil, No. 1:09cv204/MMP/GRJ, 2011 WL 2790167, at *7
(N.D. Fla. June 22, 2011), Report and Recommendation
Adopted, 2011 WL 2790180 (N.D. Fla. July 15, 2011);
Curry v. Buss, No. 3:08cv539/LAC/EMT, 2011 WL
2174038 (N.D. Fla. Apr. 26, 2011), Report and
Recommendation Adopted, 2011 WL 2149544 (N.D. Fla. June
Petitioner filed an initial brief in the Rule 3.850 appeal,
but he did not present any argument on Grounds One, Three, or
Four (see Ex. C2), and thus did not properly exhaust
them in the state courts. Moreover, Petitioner cannot now
take a second appeal from the denial of his Rule 3.850 motion
to attempt to successfully exhaust Grounds One, Three, and
Four. Therefore, Grounds One, Three, and Four are
has not alleged cause for his failure to present Grounds One,
Three, and Four in his post-conviction appellate brief.
However, the court construes Petitioner's
“extraordinary circumstance” argument as an
attempt to satisfy the miscarriage of justice exception to
the procedural bar by arguing that he would not have been
convicted if the jury had heard Ricky Henderson's
previously discussed, 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, 513 U.S. at 327. “To establish the
requisite probability, the petitioner must show that it is
more likely than not that no reasonable juror would have
convicted him.” Id. 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,