United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE
Lee Simms, an inmate of the Florida penal system, initiated
this action by filing a pro se Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody. Doc. 1. Petitioner is proceeding on an Amended
Petition. Doc. 17. He challenges a state court (Duval County,
Florida) judgment of conviction for aggravated battery with a
deadly weapon. He is currently serving a twenty-year term of
incarceration as a Habitual Felony Offender. Respondents
filed a Response(Doc. 43; Resp.) and a Supplemental
Response (Doc. 45; Supp. Resp.). Petitioner filed a Reply
(Doc. 48) and a Supplemental Reply (Doc. 49). This case is
ripe for review.
Governing Legal Principals
Standard Under AEDPA
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner's federal habeas corpus
petition. See Ledford v. Warden, Ga. Diagnostic &
Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016), cert. denied, 137 S.Ct. 1432 (2017).
“‘The purpose of AEDPA is to ensure that federal
habeas relief functions as a guard against extreme
malfunctions in the state criminal justice systems, and not
as a means of error correction.'” Id.
(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).
first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the
petitioner's claims on the merits. See Marshall v.
Sec'y Fla. Dep't of Corr., 828 F.3d 1277, 1285
(11th Cir. 2016). The state court need not issue an opinion
explaining its rationale in order for the state court's
decision to qualify as an adjudication on the merits. See
Harrington v. Richter, 562 U.S. 86, 100 (2011). Where
the state court's adjudication on the merits is
unaccompanied by an explanation,
the federal court should “look through” the
unexplained decision to the last related state-court decision
that does provide a relevant rationale. It should then
presume that the unexplained decision adopted the same
reasoning. But the State may rebut the presumption by showing
that the unexplained affirmance relied or most likely did
rely on different grounds than the lower state court's
decision, such as alternative grounds for affirmance that
were briefed or argued to the state supreme court or obvious
in the record it reviewed.
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
state court has adjudicated a petitioner's claims on the
merits, a federal court cannot grant habeas relief unless the
state court's adjudication of the claim was
“contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States, ” or “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)(1), (2). A state court's
factual findings are “presumed to be correct”
unless rebutted “by clear and convincing
evidence.” Id. § 2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that
state-court decisions be given the benefit of the
doubt.” Renico v. Lett, 559 U.S. 766, 773
(2010) (internal quotation marks omitted). “A state
court's determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court's
decision.” Harrington v. Richter, 562 U.S. 86,
101 (2011) (internal quotation marks omitted). “It
bears repeating that even a strong case for relief does not
mean the state court's contrary conclusion was
unreasonable.” Id. [at 102] (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The
Supreme Court has repeatedly instructed lower federal courts
that an unreasonable application of law requires more than
mere error or even clear error. See, e.g.,
Mitchell v. Esparza, 540 U.S. 12');">540 U.S. 12, 18 (2003);
Lockyer, 538 U.S. at 75 (“The gloss of clear
error fails to give proper deference to state courts by
conflating error (even clear error) with
unreasonableness.”); Williams v. Taylor, 529
U.S. 362, 410 (2000) (“[A]n unreasonable application of
federal law is different from an incorrect application of
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th
Cir. 2013) (internal citations modified).
Exhaustion and Procedural Default
are prerequisites to federal habeas review. Before bringing a
§ 2254 habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for
challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the
petitioner must “fairly present” every issue
raised in his federal petition to the state's highest
court, either on direct appeal or on collateral review.
Castille v. Peoples, 489 U.S. 346, 351 (1989)
(emphasis omitted). Thus, to properly exhaust a claim,
“state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process.” O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999); see also Pope v. Rich, 358
F.3d 852, 854 (11th Cir. 2004) (noting “that
Boerckel applies to the state collateral review
process as well as the direct appeal process.”).
addressing exhaustion, the United States Supreme Court
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C.
§ 2254(b)(1), thereby giving the State the
“‘“opportunity to pass upon and
correct” alleged violations of its prisoners'
federal rights.'” Duncan v. Henry, 513
U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam) (quoting Picard v. Connor, 404 U.S. 270,
275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). To provide the
State with the necessary “opportunity, ” the
prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme court with
powers of discretionary review), thereby alerting that court
to the federal nature of the claim. Duncan,
supra, at 365-366, 115 S.Ct. 887; O'Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144
L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
prisoner's failure to properly exhaust available state
remedies results in a procedural default which raises a
potential bar to federal habeas review. The United States
Supreme Court has explained the doctrine of procedural
default as follows:
Federal habeas courts reviewing the constitutionality of a
state prisoner's conviction and sentence are guided by
rules designed to ensure that state-court judgments are
accorded the finality and respect necessary to preserve the
integrity of legal proceedings within our system of
federalism. These rules include the doctrine of procedural
default, under which a federal court will not review the
merits of claims, including constitutional claims, that a
state court declined to hear because the prisoner failed to
abide by a state procedural rule. See,
e.g., Coleman,  supra, at 747-748,
111 S.Ct. 2546; Sykes,  supra, at 84-85, 97
S.Ct. 2497. A state court's invocation of a procedural
rule to deny a prisoner's claims precludes federal review
of the claims if, among other requisites, the state
procedural rule is a nonfederal ground adequate to support
the judgment and the rule is firmly established and
consistently followed. See, e.g.,
Walker v. Martin, 562 U.S.__, __, 131 S.Ct. 1120,
1127- 1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler,
558 U.S.__, __, 130 S.Ct. 612, 617-618, 175 L.Ed.2d 417
(2009). The doctrine barring procedurally defaulted claims
from being heard is not without exceptions. A prisoner may
obtain federal review of a defaulted claim by showing cause
for the default and prejudice from a violation of federal
law. See Coleman, 501 U.S., at 750, 111 S.Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus,
procedural defaults may be excused under certain
circumstances. Notwithstanding that a claim has been
procedurally defaulted, a federal court may still consider
the claim if a state habeas petitioner can show either (1)
cause for and actual prejudice from the default; or (2) a
fundamental miscarriage of justice. Ward v. Hall,
592 F.3d 1144, 1157 (11th Cir. 2010). In order for a
petitioner to establish cause and prejudice,
the procedural default “must result from some objective
factor external to the defense that prevented [him] from
raising the claim and which cannot be fairly attributable to
his own conduct.” McCoy v. Newsome, 953 F.2d
1252, 1258 (11th Cir. 1992) (quoting Carrier, 477
U.S. at 488, 106 S.Ct. 2639). Under the prejudice prong, [a
petitioner] must show that “the errors at trial
actually and substantially disadvantaged his defense so that
he was denied fundamental fairness.” Id. at
1261 (quoting Carrier, 477 U.S. at 494, 106 S.Ct.
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir.
absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally
defaulted claim if the petitioner can establish that a
fundamental miscarriage of justice, the continued
incarceration of one who is actually innocent, otherwise
would result. The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive consideration
on the merits of his procedurally defaulted claim.
“[I]n an extraordinary case, where a constitutional
violation has probably resulted in the conviction of one who
is actually innocent, a federal habeas court may grant the
writ even in the absence of a showing of cause for the
procedural default.” Carrier, 477 U.S. at 496,
106 S.Ct. at 2649. “This exception is exceedingly
narrow in scope, ” however, and requires proof of
actual innocence, not just legal innocence. Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).
Ward, 592 F.3d at 1157. “To meet this
standard, a petitioner must ‘show that it is more
likely than not that no reasonable juror would have convicted
him' of the underlying offense.” Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting
Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Additionally, “‘[t]o be credible,' a claim of
actual innocence must be based on reliable evidence not
presented at trial.” Calderon v. Thompson, 523
U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at
324). With the rarity of such evidence, in most cases,
allegations of actual innocence are ultimately summarily
rejected. Schlup, 513 U.S. at 324.
Ineffective Assistance of Counsel
Sixth Amendment guarantees criminal defendants effective
assistance of counsel. That right is denied when a defense
counsel's performance falls below an objective standard
of reasonableness and thereby prejudices the defense.”
Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per
curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521
(2003), and Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish ineffective assistance, a person
must show that: (1) counsel's performance was outside the
wide range of reasonable, professional assistance; and (2)
counsel's deficient performance prejudiced the challenger
in that there is a reasonable probability that the outcome of
the proceeding would have been different absent counsel's
deficient performance. Strickland, 466 U.S. at 687.
there is no “iron-clad rule requiring a court to tackle
one prong of the Strickland test before the
other.” Ward v. Hall, 592 F.3d 1144, 1163
(11th Cir. 2010). Since both prongs of the two-part
Strickland test must be satisfied to show a Sixth
Amendment violation, “a court need not address the
performance prong if the petitioner cannot meet the prejudice
prong, and vice-versa.” Id. (citing
Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir.
2000)). As stated in Strickland: “If it is
easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often
be so, that course should be followed.” 466 U.S. at
question is not whether a federal court believes the state
court's determination under the Strickland
standard was incorrect but whether that determination was
unreasonable - a substantially higher threshold.”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)
(quotation marks omitted). If there is “any reasonable
argument that counsel satisfied Strickland's
deferential standard, ” then a federal court may not
disturb a state-court decision denying the claim.
Richter, 562 U.S. at 105. As such,
“[s]urmounting Strickland's high bar is
never an easy task.” Padilla v. Kentucky, 559
U.S. 356, 371 (2010). “Reviewing courts apply a
‘strong presumption' that counsel's
representation was ‘within the wide range of reasonable
professional assistance.'” Daniel v.
Comm'r, Ala. Dep't of Corr., 822 F.3d 1248, 1262
(11th Cir. 2016) (quoting Strickland, 466 U.S. at
689). “When this presumption is combined with §
2254(d), the result is double deference to the state court
ruling on counsel's performance.” Id.
(citing Richter, 562 U.S. at 105); see also
Evans v. Sec'y, Dep't of Corr., 703 F.3d 1316,
1333-35 (11th Cir. 2013) (en banc) (Jordan, J., concurring);
Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.
alleges that trial counsel was ineffective for failing to
move for a mistrial when the state failed to call the victim
Michael Smith (a.k.a. Shorty Cool) as a witness at trial in
violation of his Sixth Amendment right to confrontation. Doc.
17 at 5. Petitioner further alleges that because the evidence
was insufficient, the state amended the Information to omit
the use of a deadly weapon element; however, trial counsel
failed to inform Petitioner or the jury about the amendment.
ground one of his motion for postconviction relief under
Florida Rule of Criminal Procedure 3.850, Petitioner raised
his claim regarding the state's failure to call the
victim as a witness. Resp. Ex. H at 34. The trial court
denied the allegation as follows:
Defendant's sixth sub-claim alleges his counsel was
ineffective for failing to file a motion for mistrial on the
grounds that he was denied the right to confront his accuser
because the State failed to call the victim at trial. Here
again, Defendant's claim is without merit. An attorney is
not ineffective for failing to raise a non-meritorious issue.
Lugo [v. State, 2 So.3d 1, 21 (Fla. 2008)];
Parker [v. State, 611 So.2d 1224, 1227 (Fla. 1993)].
The Confrontation Clause prevents admission of testimonial
evidence by a witness who does not appear at trial in order
to preserve a defendant's right to cross-examine, or
confront, the witness against him. Davis v.
Washington, 547 U.S. 813, 813 (2006). The State did not
attempt to admit any testimonial evidence from the alleged
victim. Therefore, no violation of the Confrontation Clause
occurred. Rather, the State used available witnesses to
present testimonial evidence of the crime for which Defendant
was convicted. Defendant was provided the opportunity to
cross-examine these witnesses. Because Defendant's
underlying ground for the motion is without merit, counsel
cannot be deemed to be ineffective for failing to file the
motion. Accordingly, Defendant fails to show counsel's
performance was deficient. Furthermore, Defendant's sixth
sub-claim has already been addressed by the Court. On August
5, 2013, the Court held a hearing to discuss Defendant's
request to remove counsel from representation. (Ex. D.)
During discussions with the trial judge, Defendant
specifically indicated the lack of victim testimony as one
reason for counsel's removal. (Ex. D at 4.) The Court
acknowledged this complaint, along with others, and denied
Defendant's request, finding that counsel's
performance was not deficient. (Ex. D at 7.) Therefore,
Defendant's sixth sub-claim is also barred by the
principle of collateral estoppel discussed supra.
Defendant's sixth sub-claim for relief is denied.
Resp. Ex. H at 51-52. The First District Court of Appeal per
curiam affirmed the trial court's denial without a