United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG JUDGE
McCullen, a Florida prisoner, timely filed a counseled
petition for writ of habeas corpus under 28 U.S.C. §
2254 (Dkt. 1) challenging his Hillsborough County conviction,
along with a supporting memorandum of law (Dkt. 2). The Court
ordered Respondent Secretary, Department of Corrections, to
show cause why the relief sought in the petition should not
be granted. (Dkt. 3). Respondent filed a response and the
state court record. (Dkts. 7, 9). Mr. McCullen filed a reply.
(Dkt. 14). Upon consideration, the petition will be denied.
McCullen was convicted after a jury trial of second degree
murder with a firearm. (Dkt. 9, Ex. 1, Vol. 1, p. 87). The
state trial court sentenced him to 35 years in prison,
followed by five years of probation. (Id., p. 100).
The sentence included a 25-year mandatory minimum term.
(Id., p. 101). The state appellate court per
curiam affirmed the conviction and sentence. (Dkt.
9, Ex. 4). Mr. McCullen filed a motion for postconviction
relief under Florida Rule of Criminal Procedure 3.850, and an
amended motion. (Dkt. 9, Ex. 5; Dkt. 9, Ex. 6, pp. 42-70).
The state court summarily denied all but one claim. (Dkt. 9,
Ex. 6, pp. 109-14). After conducting an evidentiary hearing
on the remaining claim, the state court entered a final order
denying postconviction relief. (Id., pp. 214-41).
The state appellate court per curiam affirmed. (Dkt.
9, Ex. 9).
Procedurally Defaulted Claims
Exhaustion of State Court Remedies; Procedural
federal habeas petitioner must exhaust his claims by raising
them in state court before presenting them in his petition.
28 U.S.C. § 2254(b)(1)(A); O 'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state
prisoner must give the state courts an opportunity to act on
his claims before he presents those claims to a federal court
in a habeas petition."). The exhaustion requirement is
satisfied if the petitioner fairly presents his claim in each
appropriate state court and alerts that court to the federal
nature of the claim. Picardv. Connor, 404 U.S. 270,
275-76 (1971). The doctrine of procedural default provides
that "[i]f the petitioner has failed to exhaust state
remedies that are no longer available, that failure is a
procedural default which will bar federal habeas relief,
unless either the cause and prejudice or the fundamental
miscarriage of justice exception is established."
Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir.
Trial Court Error Claims
Ground One, Mr. McCullen argues that the trial court erred in
allowing prosecution witness Tiffany Lively to testify about
a letter that Mr. McCullen purportedly wrote to the victim.
In Ground Two, he claims that the trial court erred when it
did not allow Melody McCullen to testify about the
victim's reputation for violence. Mr. McCullen alleges
violations of his right to a fair trial under the Sixth
Amendment and his right to due process under the Fourteenth
Mr. McCullen raised these issues on appeal, he presented them
solely in terms of state law. (Dkt. 9, Ex. 2, pp. 3-8). He
did not allege any federal constitutional violations or cite
any federal authority. (Id.). Because Mr. McCullen
failed to notify the state appellate court that he was
presenting federal claims, he did not satisfy the exhaustion
requirement. See Duncan v. Henry, 513 U.S. 364,
365-66 (1995) ("If state courts are to be given the
opportunity to correct alleged violations of prisoners'
federal rights, they must surely be alerted to the fact that
the prisoners are asserting claims under the United States
Constitution."); Preston v. Sec 'y Fla. Dep
7 of Corr., 785 F.3d 449, 457 (11th Cir. 2015)
("The crux of the exhaustion requirement is simply that
the petitioner must have put the state court on notice that
he intended to raise a federal claim.").
procedural rules do not provide for second appeals.
See Fla. R. App. P. 9.140(b)(3) (stating that a
notice of appeal must be filed within 30 days of the
rendition of the sentence). Since Mr. McCullen therefore
cannot return to state court to exhaust the federal claims,
they are procedurally defaulted. See Smith, 256 F.3d
at 1138. Mr. McCullen has not argued or established that
either the cause and prejudice or the fundamental miscarriage
of justice exception applies to excuse the default.
Consequently, Grounds One and Two are barred from federal
Ineffective Assistance of Trial Counsel Claims
Ground Five, Mr. McCullen claims that trial counsel was
ineffective in not calling Sheila Parsons at trial. In Ground
Six, Mr. McCullen argues that trial counsel was ineffective
in not calling his minor son at trial. In Ground Seven, Mr.
McCullen contends that he is entitled to relief based on the
cumulative effect of trial counsel's alleged errors.
McCullen raised these claims in his amended postconviction
motion. (Dkt. 9, Ex. 6, pp. 66-69). Respondent contends that
these claims are unexhausted because Mr. McCullen did not
raise them on collateral appeal. See Leonard v.
Wainwright, 601 F.2d 807, 808 (5th Cir. 1979) ("In
Florida, exhaustion usually requires not only the filing of a
Rule 3.850 motion, but an appeal from its
denial."); see also Boerckel, 526 U.S. at
845 (the exhaustion doctrine requires that a prisoner give
the state courts a full opportunity to resolve a federal
constitutional claim "by invoking one complete round of
the State's established appellate review process.").
McCullen did not identify or discuss any of these claims in
his collateral appellate brief. (Dkt. 9, Ex. 7, pp. 3-9). Mr.
McCullen asserts in his reply, however, that he properly
exhausted the claims because he was not required to brief
them. Florida Rule of Appellate Procedure 9.141 (b)(3)
applied to Mr. McCullen's collateral appeal. This rule
provides that when a postconviction motion has been resolved
after an evidentiary hearing was held on one or more claims,
an initial brief "shall be served within 30 days of
service of the record or its index." Fla. R. App. P.
9.141(b)(3)(C). Mr. McCullen argues that because the rule
"does not specifically state that the claims summarily
denied and not addressed at the evidentiary hearing require
briefing[, ]" this Court should conclude that he
exhausted his claims. (Dkt. 14, p. 3).
Second District Court of Appeal ("Second DCA"),
which heard Mr. McCullen's appeal, has addressed the
application of this rule. The Second DCA explained that
between December 2000 and October 2010, its internal policy
required briefing only for grounds that were denied after an
evidentiary hearing. Cunningham v. State, 131 So.3d
793, 794 (Fla. 2d DCA 2012). A merits review of any summarily
denied grounds was conducted automatically regardless of
whether such grounds were briefed. Id. But the
Second DCA abandoned this policy as of October 2010 and, when
considering an appeal under rule 9.141(b)(3), "no longer
conducts an independent review" of summarily denied
claims that were not briefed. Id. at 794-95.
Therefore, when at least one postconviction claim was
resolved after an evidentiary hearing, an appellant must
brief all claims he wishes the Second DCA to review,
including those claims summarily denied without a hearing.
This new policy was in place when Mr. McCullen filed his
Mr. McCullen failed to exhaust these claims because he did
not brief them on collateral appeal. See Coolen v.
State, 696 So.2d 738, 742 n.2 (Fla. 1997)
("Coolen's failure to fully brief and argue [his]
points constitutes a waiver of these claims." (citing
Duest v. Dugger, 555 So.2d 849, 852 (Fla. 1990))).
Mr. McCullen cannot return to state court to present the
claims because state procedural rules do not provide for
second collateral appeals. See Fla. R. Crim. P.
3.850(k) (stating that an appeal from a final order denying
postconviction relief may be taken within 30 days of the
rendition of the order). Accordingly, these claims are
procedurally defaulted. See Smith, 256 F.3d at 1138.
McCullen states in his federal habeas petition that his
postconviction appellate counsel did not raise these claims,
that he does not know why counsel failed to do so, and that
he asked counsel to raise all cognizable claims on appeal.
(Dkt. 1, pp. 15, 17, 19). The Court interprets these
statements as an argument that Mr. McCullen's
postconviction appellate counsel was ineffective in not
raising the claims, and that this ineffective assistance is
cause to excuse the default. Ineffective assistance can
constitute cause only when an attorney's error
"amounted to a deprivation of the constitutional right
to counsel." Rivera v. Sec 'y, Dep 't of
Corr., 731 Fed. App'x 946, 954 (11th Cir. 2018). But
"[t]here is no federal constitutional right to an
attorney in postconviction proceedings." Id. at
955. Accordingly, "ineffective assistance of
postconviction counsel does not typically provide a basis for
setting aside procedural default, and even less so in the
case of appellate postconviction counsel." Id.
Therefore, Mr. McCullen cannot establish the cause and
prejudice exception by claiming that his postconviction
appellate counsel was ineffective in not raising the claims.
Mr. McCullen has not asserted another basis to establish the
cause and prejudice exception. Nor has he argued or
established that he meets the fundamental miscarriage of
justice exception. Accordingly, Grounds Five, Six, and Seven
are procedurally defaulted and are barred from federal habeas
Standard of Review Under AEDPA
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") governs this proceeding. Carroll v.
Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009).
Habeas relief can only be granted if a petitioner is in
custody "in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. §
2254(a). Section 2254(d) provides that federal habeas relief
cannot be granted on a claim adjudicated on the merits in
state court unless the state court's adjudication:
(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.
decision is "contrary to" clearly established
federal law "if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially
indistinguishable facts." Williams v. Taylor,
529 U.S. 362, 413 (2000). A decision is an "unreasonable
application" of clearly established federal law "if
the state court identifies the correct governing legal
principle from [the Supreme] Court's decisions but
unreasonably applies that principle to the facts of the
prisoner's case." Id.
was meant "to prevent federal habeas 'retrials'
and to ensure that state-court convictions are given effect
to the extent possible under law." Bell v.
Cone, 535 U.S. 685, 693 (2002). Accordingly, "[t]he
focus ... is on whether the state court's application of
clearly established federal law is objectively unreasonable,
and... an unreasonable application is different from an
incorrect one." Id. at 694. See also
Harrington v. Richter, 562 U.S. 86, 103 (2011) ("As
a condition for obtaining habeas corpus from a federal court,
a state prisoner must show that the state court's ruling
on the claim being presented in federal court was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
state appellate court affirmed Mr. McCullen's conviction
and sentence, as well as the denial of postconviction relief,
without discussion. These decisions warrant deference under
§ 2254(d)(1) because "the summary nature of a state
court's decision does not lessen the deference that it is
due." Wright v. Moore, 278 F.3d 1245, 1254
(11th Cir. 2002). When a state appellate court issues a
silent affirmance, "the federal court should 'look
through' the unexplained decision to the last related
state-court decision that does provide a relevant
rationale" and "presume that the unexplained
decision adopted the same reasoning." Wilson v.
Sellers, 138 S.Ct. 1188, 1192 (2018).
McCullen claims that the State's evidence was
insufficient to rebut his showing of self- defense. He
asserts a violation of his right to due process under the
Fourteenth Amendment. Respondent contends that this claim is
unexhausted because Mr. McCullen did not raise it as a
federal claim on direct appeal. Respondent is correct that
Mr. McCullen presented his claim as one of state law. (Dkt.
9, Ex. 2, pp. 9-10).
it may be possible to exhaust a federal sufficiency of the
evidence claim by presenting an analogous state claim in
state court when the state and federal courts apply the same
standard of review. Mulnix v. Sec 'yfor Dep 't oj
Corr.,254 Fed.Appx. 763 (11th Cir. 2007). The
sufficiency of the evidence standard applied by federal
courts, and applied by the state court in Mr. McCullen's
appeal,  asks whether, after viewing the evidence
in the light most favorable to the prosecution, a rational
trier of fact could have found guilt beyond a reasonable
doubt. Jackson v. Virginia,443 U.S. 307, 319
(1979); Simmons v. State,934 So.2d 1100, 1111 (Fla.
2006). Rebutting a prima facie showing of
self-defense is a part of the State's burden of proof to
obtain a conviction. See Fields v. State, 988 So.2d
1185, 1188 (Fla. 5th DCA 2008) ("The burden of proving
guilt beyond a reasonable doubt, including the burden of
proving that a defendant did not act in self-defense, never
shifts from the State."); Jenkins v. State, 942
So.2d 910, 914 (Fla. 2d DCA 2006) (stating that the
prosecution's burden of ...