United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN, UNITED STATES DISTRICT JUDGE.
an inmate of the Florida penal system, initiated this action
by filing a Petition Under 28 U.S.C. § 2254 for a Writ
of Habeas Corpus (Doc. 1) (Petition). He challenges his 2010
state court (Duval County, Florida) judgment of conviction
for burglary while wearing a hood or mask. He was sentenced
to thirty years in prison as a habitual felony offender.
Respondents filed a Response to Petition for Writ of Habeas
Corpus (Doc. 9) (Response) with Exhibits (Docs. 9-1 to 9-5)
(Ex.). Petitioner filed a Reply (Doc. 14). The case is ripe
Governing Legal Principles
Standard of Review
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 the effective
assistance of counsel. That right is denied when a defense
attorney'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, 592 F.3d at 1163. 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 697.
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.” Hittson v. GDCP Warden, 759 F.3d
1210, 1248 (11th Cir. 2014) (quoting 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
Marshall, 828 F.3d at 1285 (“The standards created
by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is
doubly so.” (quotations and citation omitted)).
September 25, 2009, the State of Florida charged Petitioner
by information with burglary (structure/conveyance), a
third-degree felony. Ex. A at 16. On December 22, 2009, the
state filed an amended information charging Petitioner with
burglary while wearing a hood or mask, a second-degree
felony. Id. at 26. Petitioner was represented at
trial by Todd Niemczyk, Esquire and Senovia Lance, Esquire.
At the conclusion of the trial, the jury found Petitioner
guilty as charged. See id. at 57. He challenges his
judgment of conviction on the following fifteen
argues that his trial counsel was ineffective for failing to
object or move to exclude any evidence pertaining to his
identification. Doc. 1 at 3-11. In support of this ground, he
attacks the testimony of Mike Zager, the owner of the store
that was burglarized, asserting that Mr. Zager's
identification of him was unreliable; he argues that counsel
was ineffective for failing to call Detective Fusco; and he
claims that the photospread was suggestive and counsel was
ineffective for failing to object to it. See i d .
at 5-9. Petitioner also asserts that the trial court erred in
allowing the photospread into evidence without a proper
predicate. Id. at 8-9. He acknowledges that he did
not exhaust these claims in state court, but he argues that
Martinez v. Ryan, 566 U.S. 1 (2012), excuses the
procedural bar and permits this Court to hear the claims on
Martinez, the U.S. Supreme Court enunciated a narrow
exception to the general rule that the lack of an attorney or
attorney error in state post-conviction proceedings does not
establish cause to excuse the procedural default of a
substantive claim.” Lambrix v. Sec'y, Fla.
Dep't of Corr., 851 F.3d 1158, 1164 (11th Cir.),
cert. denied, 138 S.Ct. 217 (2017). Under this
exception, not only must Petitioner demonstrate that the
trial court failed to appoint counsel or his counsel was
ineffective in the initial collateral proceedings, but he
must also demonstrate that the underlying ineffective
assistance of trial counsel claim that he seeks to raise is a
“substantial” one, meaning that the claim must
have “some merit.” Martinez, 566 U.S. at
14; see also Luciano v. Sec'y, Dep't of
Corr., 701 Fed.Appx. 792, 793 (11th Cir. 2017);
Sullivan v. Sec'y, Fla. Dep't of Corr., 837
F.3d 1195, 1201 (11th Cir. 2016). Conversely, his claim is
“insubstantial” if “it does not have any
merit or . . . is wholly without factual support.”
Martinez, 566 U.S. at 16. For the reasons that
follow, the Court finds that Petitioner cannot demonstrate
that his underlying ineffective assistance of counsel claims
are substantial under Martinez.
to trial, Petitioner's counsel filed motions in limine to
exclude any testimony regarding an anonymous tip implicating
Petitioner in the burglary and the introduction of a
surveillance tape showing Petitioner in the subject store the
day before the burglary. Ex. A at 35-36, 38-39. The trial
court granted in part the motion regarding the anonymous tip
but denied the motion regarding the surveillance video.
Id. at 34, 37; see Ex. B at 6-11.
trial, Mr. Zager testified that he reviewed the video of the
burglary, and he realized that one of the individuals in the
video had been in his store earlier.
Q And after watching that video was there anything that
struck you about the people that came into the store?
A Yes, not when I originally watched it but before the
detective came, when I was making the copy for it I realized
that the individual that was behind the counter . . . was in
earlier that day, had the same exact shorts, same exact
shirt, same exact tennis shoes, tattoos on the arms, just
never bothered to change clothes . . . .
Q And this individual had his face covered in the video that
Q But could you tell if he had the similar or same build?
A Same build, same clothes, same shorts, same shoes.
Q So that prompted you then to look at your video from
earlier that day?
A It did. I went back because I remembered seeing that
individual and I went back and watched earlier in the
Q Well, let's talk about earlier that afternoon. That
would have been the day before?
A Day before, correct.
Q So July 8th, around what time were you able to figure out
from the video did that person that you saw on this video of
the burglary come into your store?
A It was probably somewhere between 12:30 and 1:00
o'clock, somewhere in that ball park.
Q . . . Do you remember when they entered how many people
Q And can you describe for me what they did when they came
in, what you remember?
A They came in looking for television sets. Two of them
walked over to the television area, were asking questions in
regards to TVs and what we carry and what our prices are. And
one of them walked over to the other sides of the building by
the counter or toward that other room that you see over
Q When you say counter, is that the register area?
A The register area, correct.
Q What was the man that walked over to the register area
A Black shirt, black shorts with the design on the side,
white tennis shoes with the black stripe on the back.
Q And you had interaction with all three of these men, right?
Q You got to talk to them, see their faces, they asked you
Q . . . After viewing that video of your interaction earlier
in the day and the video of the burglary, did you alert the
detectives as to your suspicion about the person that was
dressed in the black shirt and the black shorts?
A Yes, when the detective came for the video, I showed her,
not only gave her the DVD, I also showed her the video and
showed her the tape from earlier in the afternoon and said
that the individual that broke into our building never even
changed clothes, they wore the same shorts, the same shirt,
paused it where he was behind the counter where you could see
the tattoos on his arm, also when he was walking in front of
the counter earlier in the day similar tattoos on the arm
that were there, same outfit.
Q Let's talk about those tattoos because you mentioned
you also noticed tattoos. What body part did you notice was
tattooed that stuck out in your mind from your interaction?
A The left arm cause that was the side as he walked in front
of the counter, probably the one, I mean, he has on both arms
but in the video what I noticed was the ones on the left arms
cause he's got a full sleeve, and on the one when
you're walking in front of the counter you can see those
Q Okay. So when you saw the video of the burglary which is a
still shot depicted in . . . State's 18, you right away
remembered those tattoos were similar to what you had seen
during your interaction in the store?
A The first thing I noticed was the same shorts, the same
shirt, and the same shoes. Then I noticed the arm on one of
the pictures that you have there as he was coming across, and
then I went back and looked at the other video to confirm and
the same tattoos.
Ex. B at 41-44, 50-51, 54-55.
cross-examination, Petitioner's counsel elicited
testimony from Mr. Zager that the shorts and shoes worn by
Petitioner when he was legally in the store the day before
the burglary were removable,  and that he's not the only
African American male in Jacksonville with the same build as
the burglar. Id. at 63-64. Counsel also
elicited testimony that the videos were too blurry to
specifically recognize the tattoos. Id. at 64. In
closing argument, Petitioner's counsel discussed the
unreliability of the identification and the lack of evidence
proving beyond a reasonable doubt that Petitioner committed
the burglary, and he urged the jury to closely review all of
the evidence. See id. at 130-41.
review, this Court finds that Petitioner has failed to show
his counsel was deficient in the manner suggested. Petitioner
is simply unhappy with how the jury weighed the evidence.
Because Petitioner cannot show his counsel was ineffective,
this claim lacks merit, and thus it is not a
“substantial” claim warranting application of the
Martinez exception. Petitioner has not otherwise
shown both cause for and actual prejudice from the default.
Nor has he shown that he is entitled to the fundamental
miscarriage of justice exception. Accordingly, Petitioner is
not entitled to federal habeas relief on this claim.
extent Petitioner also argues his counsel was ineffective for
failing to call Detective Fusco as a witness, his claim is
not substantial. Petitioner argues that Detective Fusco was
“solely responsible for implicating the [P]etitioner as
the burglar, and providing the tip that included the
[P]etitioner's photo being included in a photo
spread.” Doc. 1 at 8. Petitioner's assertions are
not supported by the record. In response to an intelligence
bulletin which included photos of the suspects from the
surveillance video, Petitioner was identified through an
anonymous tip. As a result, his photograph was included in a
photospread, and he was identified by Mr. Zager. Moreover,
“‘[w]hich witnesses, if any, to call, and when to
call them, is the epitome of a strategic decision, and it is
one that we will seldom, if ever, second guess.'”
Ledford v. Warden, Ga. Diagnostic & Classification
Prison, 818 F.3d 600, 647 (11th Cir. 2016) (quoting
Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.
1995)). Counsel could have reasonably determined that calling
Detective Fusco as a witness would have been more harmful to
Petitioner's case, given that Detective Fusco could have
testified that she personally interviewed Petitioner, he
admitted to being in the store the day before the burglary,
and his tattoos matched those of the suspect on the
surveillance video. Considering the record on the whole, the
Court finds that Petitioner has failed to show his counsel
was deficient for not calling Detective Fusco as a witness,
and therefore, this claim has no merit; thus,
Martinez does not apply. Petitioner has not
otherwise shown cause and prejudice to excuse his default,
nor is he entitled to the fundamental miscarriage of justice
exception. Petitioner is not entitled to federal habeas
relief on this claim.
as Petitioner argues that his counsel was ineffective for
failing to object to the photospread as being unduly
suggestive, such claim is also insubstantial and procedurally
barred. An out-of-court identification is subject to
exclusion if the identification procedure was unduly
suggestive such that it created a substantial risk of
misidentification. See Neil v. Biggers, 409 U.S.
188, 199 (1972). In determining whether an identification
violates due process, a court undertakes a two-part analysis.
“First, [the court] must determine whether the original
identification procedure was unduly suggestive . . . . If
[the court] conclude[s] that the identification procedure was
suggestive, [the court] must then consider whether, under the
totality of the circumstances, the identification was
nonetheless reliable.” Cikora v. Dugger, 840
F.2d 893, 895 (11th Cir. 1988) (citing Biggers, 409
U.S. at 199).
Biggers, the Supreme Court identified five factors
to be considered in determining whether the identification
was reliable. They are: the witness's opportunity to view
the suspect at the time of the crime, the witness's
degree of attention, the accuracy of the description of the
suspect, the level of certainty of the identification, and
the length of time between the crime and the identification.
See Biggers, 409 U.S. at 199. In Manson v.
Brathwaite, 432 U.S. 98, 116 (1977), the United States
Supreme Court stated that absent “a very substantial
likelihood of irreparable misidentification, ” the
identification of a suspect by a witness is evidence for the
jury to weigh.
trial, Mr. Zager testified that during the investigation, a
detective showed him a photospread. He then described that
Q The detective that came, what did they do, what did they
A It was a detective I hadn't met before, it was not the
detective that was originally came on the case. He showed and
said I have some photos, I want to know if you can - - if you
see anybody that you recognize.
Q And did he allow you to look through the photos? Describe
for the jury how they were shown to you.
A He put the photos down and laid them out on the counter.
Q Did that detective do anything to indicate which photo you
Q Did he do anything to suggest which photo was relevant?
Q Were you able to identify the person that you had
interacted with that day prior to the burglary?
Q Is this the photospread that you were shown by the
Q And did you pick out from those photos a ...