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Flowers v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

August 9, 2019

MICHAEL L. FLOWERS, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          BRIAN J. DAVIS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner Michael L. Flowers, an inmate of the Florida penal system proceeding pro se, challenges his state court (Duval County) conviction for two counts of aggravated battery through a Second Amended Petition for writ of habeas corpus (Petition) (Doc. 13) pursuant to 28 U.S.C. § 2254. He is serving a term of life imprisonment on count one and a concurrent term of twenty years in prison on count two. Petition at 1. Respondents filed an Answer to Petition for Writ of Habeas Corpus (Response) (Doc. 32).[1]Thereafter, Petitioner filed a Reply to Respondents' Answer to Petitioner's Petition for Writ of Habeas Corpus (Reply) (Doc. 37). The Petition is timely filed. See Response at 16-19.

         II. EVIDENTIARY HEARING

         The pertinent facts are fully developed in this record or the record otherwise precludes habeas relief; therefore, the Court is able to "adequately assess [Petitioner's] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004). As the record refutes the asserted factual allegations or otherwise precludes habeas relief, the Court finds Petitioner is not entitled to an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Petitioner has not met his burden of demonstrating a need for an evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner bears the burden of establishing the need for an evidentiary hearing with more than speculative and inconcrete claims of need), cert. denied, 565 U.S. 1120 (2012).

         III. CLAIMS OF PETITION

         In his Petition, Petitioner raises fourteen grounds seeking post conviction relief. He primarily raises claims of ineffective assistance of trial counsel, but also raises two claims of ineffective assistance of appellate counsel. The fourteen grounds are: (1) the ineffective assistance of trial counsel by opening the door to prejudicial evidence of Petitioner's post-arrest silence and post-Miranda invocation of right to counsel; (2) the ineffective assistance of trial counsel for failure to adequately prepare for the state's impeachment of Shantell Smith regarding delay in coming forward with alibi information; (3) the ineffective assistance of trial counsel for failure to object to the prosecutor's closing argument with regard to excessive comments on Petitioner's post-arrest silence and post-Miranda invocation of right to counsel; (4) the ineffective assistance of trial counsel for failure to object to the trial court's handling of a jury question and refusal to read-back Jerry Strickland's testimony; (5) the ineffective assistance of appellate counsel for failure to raise on appeal the trial court's error in denying the motion to dismiss information; (6) the ineffective assistance of appellate counsel for failure to timely raise a sentencing issue on appeal; (7) the ineffective assistance of trial counsel for failure to call Sgt. Butler as a defense witness; (8) the ineffective assistance of counsel for failure to request a cautionary instruction on reliability of identification; (9) the ineffective assistance of counsel for failure to file a motion to suppress Petitioner's identification based on an impermissibly suggestive photo line-up; (10) the ineffective assistance of counsel for failure to investigate and introduce reverse Williams' rule evidence; (11) the ineffective assistance of counsel for failure to object to prosecutorial misconduct during closing argument; (12) the ineffective assistance of trial counsel for failure to obtain Petitioner's phone records and present the records at trial to support the alibi defense; (13) the ineffective assistance of counsel for failure to object to a sleeping juror, Ms. Batton; and (14) the cumulative effect of trial counsel's errors rendered counsel's assistance ineffective and deprived Petitioner of a fair trial. In each ground, Petitioner claims deprivations of his Sixth and Fourteenth Amendment rights.

         IV. STANDARD OF REVIEW

         The Antiterrorism and Effective Death Penalty Act (AEDPA) governs a state prisoner's federal petition for habeas corpus. See 28 U.S.C. § 2254. This statute "imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases." Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam). The AEDPA statute: "respects the authority and ability of state courts and their dedication to the protection of constitutional rights." Id. Therefore, "[u]nder AEDPA, error is not enough; even clear error is not enough." Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir. 2019) (citing Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017) (per curiam)).

         Applying the statute as amended by AEDPA, federal courts may not grant habeas relief unless one of the claims: "(1)'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) '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)." Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298, 1300-1301 (11th Cir. 2019).

         Thus, in order to obtain habeas relief, the state court decision must unquestionably conflict with Supreme Court precedent. Harrington v. Richter, 562 U.S. 86, 102 (2011). If some fair-minded jurists could agree with the lower court's decision, habeas relief must be denied. Meders, 911 F.3d at 1351. As noted in Richter, unless the petitioner shows the state court's ruling was so lacking in justification that there was error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement, there is no entitlement to habeas relief. Burt v. Titlow, 571 U.S. 12, 19-20 (2013).

         In undertaking its review, this Court is not obliged "to flyspeck the state court order or grade it." Meders, 911 F.3d at 1349. Indeed, specificity and thoroughness of the state court decision is not required; even if the state court fails to provide rationale or reasoning, AEDPA deference is due "absent a conspicuous misapplication of Supreme Court precedent." Id. at 1350 (citation and quotation marks omitted).

         Of importance, a state court's finding of fact, whether a state trial court or appellate court, is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). But, this presumption of correctness applies only to findings of fact, not mixed determinations of law and fact. Brannan v. GDCP Warden, 541 Fed.Appx. 901, 903-904 (11th Cir. 2013) (per curiam) (recognizing the distinction between a pure question of fact from a mixed question of law and fact), cert. denied, 573 U.S. 906 (2014).

         Where there has been one reasoned state court judgment rejecting a federal claim followed by an unexplained order upholding that judgement, federal habeas courts employ a "look through" presumption: "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." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (Wilson).

         Once a claim is adjudicated in state court and a prisoner seeks relief in the federal court system, AEDPA's formidable barrier to habeas relief comes into play, and it is very difficult for a petitioner to prevail under this stringent standard. As such, state-court judgments will not easily be set aside once the Court employs this highly deferential standard that is intentionally difficult to meet. See Richter, 562 U.S. at 102. Although AEDPA does not impose a complete bar to issuing a writ, it severely limits those occasions to those "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts" with Supreme Court precedent. Id. In sum, application of the standard set forth in 28 U.S.C. § 2254(d) ensures that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, and not a mechanism for ordinary error correction. Richter, 562 U.S. at 102-103 (citation and quotation marks omitted).

         V. INEFFECTIVE ASSISTANCE OF COUNSEL

         Petitioner raises numerous claims of ineffective assistance of counsel. To prevail on his Sixth Amendment claims, Petitioner must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 688 (1984), requiring that he show both deficient performance (counsel's representation fell below an objective standard of reasonableness) and prejudice (there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different). See Brewster v. Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019) (reviewing court may begin with either component).

         In order to obtain habeas relief, a counsel's errors must be so great that they actually adversely effect the defense. In order to satisfy this prejudice prong, the reasonable probability of a different result must be "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

         The standard created by Strickland is a highly deferential standard, requiring a most deferential review of counsel's decisions. Richter, 562 U.S. at 105. Not only is there the "Strickland mandated one layer of deference to the decisions of trial counsel[, ]" there is the added layer of deference required by AEDPA: the one to a state court's decision. Nance, 922 F.3d at 1303. Thus,

Given the double deference due, it is a "rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding." Johnson v. Sec'y, DOC, 643 F.3d 907, 911 (11th Cir. 2011). And, for the reasons we have already discussed, it is rarer still for merit to be found in a claim that challenges a strategic decision of counsel.

Nance, 922 F.3d at 1303.

         VI. INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

         The two-part Strickland standard is applicable to this claim. Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016). The Eleventh Circuit describes Strickland's governance of this type of claim:

To prevail on a claim of ineffective assistance of appellate counsel, a habeas petitioner must establish that his counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Brooks v. Comm'r, Ala. Dep't of Corr., 719 F.3d 1292, 1300 (11th Cir. 2013) ("Claims of ineffective assistance of appellate counsel are governed by the same standards applied to trial counsel under Strickland.") (quotation marks omitted). Under the deficient performance prong, the petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064.

Rambaran v. Sec'y, Dep't of Corr., 821 F.3d 1325, 1331 (11th Cir. 2016), cert. denied, 137 S.Ct. 505 (2016).

         As with a claim of ineffective assistance of trial counsel, the combination of Strickland and § 2254(d) requires a doubly deferential review of a state court decision. See Richter, 562 U.S. at 105. When considering deficient performance by appellate counsel,

a court must presume counsel's performance was "within the wide range of reasonable professional assistance." Id.[2] at 689, 104 S.Ct. 2052. Appellate counsel has no duty to raise every non-frivolous issue and may reasonably weed out weaker (albeit meritorious) arguments. See Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009). "Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)); see also Burger v. Kemp, 483 U.S. 776, 784, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (finding no ineffective assistance of counsel when the failure to raise a particular issue had "a sound strategic basis").

Overstreet, 811 F.3d at 1287; see also Owen v. Sec'y, Dep't of Corr., 568 F.3d 894, 915 (11th Cir. 2009) (footnote omitted) (since the underlying claims lack merit, "any deficiencies of counsel in failing to raise or adequately pursue [meritless issues on appeal] cannot constitute ineffective assistance of counsel"), cert denied, 558 U.S. 1151 (2010).

         To satisfy the prejudice prong, a petitioner must show "but for the deficient performance, the outcome of the appeal would have been different." Black v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004) (citations omitted), cert. denied, 543 U.S. 1080 (2005); see Philmore v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009) (per curiam) ("In order to establish prejudice, we must first review the merits of the omitted claim. Counsel's performance will be deemed prejudicial if we find that 'the neglected claim would have a reasonable probability of success on appeal.'") (citations omitted), cert. denied, 559 U.S. 1010 (2010).

         VII. FINDINGS OF FACT AND CONCLUSIONS OF LAW

         A. Ground One

         In his first ground, Petitioner claims the ineffective assistance of trial counsel by opening the door to prejudicial evidence of Petitioner's post-arrest silence and post-Miranda invocation of right to counsel. Petition at 5. Petitioner raised a similar claim in his September 5, 2013 Amended Motion for Postconviction Relief (Rule 3.850 motion). Ex. GGG at 707-15. The circuit court denied the motion. Id. at 1249-1403. In its order, the circuit court incorporated the arguments set forth in the state's response, and attached and incorporated the same attachments attached to and referenced in the state's response. Id. at 1249-50. See id. at 1092-1243.

         In denying relief, the circuit court found Petitioner failed to establish either ineffectiveness or resulting prejudice. Id. at 1249. The court held:

In its response to defendant's motion, the State of Florida addressed each of defendant's eight separate grounds stated in his motion for post-conviction relief. The Court has carefully reviewed defendant's motion and the State's response. Having done so, the Court concludes that the State has demonstrated, by its legal argument and references to attachments from the record of the case, that the record conclusively refutes defendant's arguments that he is entitled to post-conviction relief. Specifically, as to each ground defendant raised in support of his motion, the record conclusively demonstrates that defendant did not receive ineffective assistance of counsel and that defendant did not suffer prejudice resulting from the actions of his trial counsel that were alleged by defendant to be ineffective. When viewed in the context of the entire trial transcript, each of the allegedly deficient acts by trial counsel appears reasonably calculated to advance a legitimate interest of Defendant or not to have resulted in any prejudice to Defendant.

Id. (emphasis added).

         Petitioner exhausted this ground by appealing its denial to the First District Court of Appeal 1st DCA (1st DCA). Id. at 1404-1405. On February 12, 2016, the 1st DCA affirmed per curiam without explanation. Ex. JJJ. The mandate issued March 9, 2016. Ex. KKK. This affirmance is an adjudication on the merits entitled to AEDPA deference. This Court will employ the "look through" presumption; the Court will "look through" the unexplained decision to the last related state court decision that provides relevant rationale (the circuit court's decision denying post conviction relief) and will presume the unexplained 1st DCA decision adopted the same reasoning as the circuit court. Wilson.

         Notably, in its response to the Rule 3.850 motion, the state appropriately referenced the Strickland standard, addressed the claim, and attached relevant portions of the record. Ex. GGG at 1092-99. The Court is convinced that fairminded jurists could agree with the circuit court's decision. Thus, the trial court's ruling incorporating the state's response and affirmed by the 1st DCA is entitled to AEDPA deference. The decision is not inconsistent with Supreme Court precedent, and the state court's adjudication of this claim is not contrary to or an unreasonable application of Strickland, or based on an unreasonable determination of the facts. Thus, AEDPA deference is due, and Petitioner is not entitled to relief on ground one.

         Upon review, Petitioner failed to overcome the presumption that counsel's performance fell within the wide range of reasonably professional assistance. The record demonstrates, initially, the defense called Shantell Smith out of order. Ex. C at 449. Ms. Smith testified that upon Petitioner's arrest, [3] Ms. Smith spoke to the police, as she was in Petitioner's sister's apartment when Petitioner was arrested. Id. at 456. Ms. Smith said the police asked for her driver's license, which she provided. Id. Thus, based on her testimony, the police were advised of her identity on the date of Petitioner's arrest and the police also knew where Petitioner's sister lived. Ms. Smith testified she asked the police questions, but the police never came back and questioned her. Id.

         On cross examination, the state asked whether Ms. Smith had called the police with information concerning the alibi defense. Id. at 465. Ms. Smith said she called Petitioner's lawyer, but she also said she did not call the police because the police had already been informed that Petitioner was with her at the time of the offense. Id. at 465-66. Additionally on cross examination, Ms. Smith testified:

Yes. Well see, my instinct was he informed the detectives that he was with me. Their job was to get in contact with me. When they didn't get in contact with me I got in contact with his lawyer and told his lawyer about the situation. And she, I thought that she was going to take it upon herself to find out why they didn't contact me. But I thought they had that information already.

Id. at 467.

         On re-direct, when asked if she remembered contacting Miss Limoge, defense counsel, Ms. Smith said she contacted Miss Limoge when she found out she was going to be Petitioner's defender. Id. at 470. Ms. Smith explained that she contacted Miss Limoge because no one, meaning no detectives, had tried to get in contact with her to obtain any information. Id.

         The state called Officer Robert Monroe. Id. at 473. On cross examination, he testified that during the investigation, he did not know a Ms. Smith and never made any attempt to contact her. Id. at 526-27. Thereafter, the state offered to allow questioning in regards to the interview of Petitioner, as long as Petitioner stipulated to the statement being freely and voluntarily made by him after the reading of his constitutional rights. Id. at 530-31. Ms. Limoge asked to confer with Petitioner. Id. at 531. After a conference, Ms. Limoge said the defense would stipulate to the voluntariness. Id. The court made further inquiry, asking Petitioner if he agreed with the stipulation. Id. at 531-33. Petitioner responded in the affirmative. Id. at 532. After providing further explanation, the court asked Petitioner whether he agreed to the stipulation, and he confirmed that he was in agreement and he wanted counsel to agree to the stipulation. Id. at 532-33.

         Based upon the stipulation, the following occurred. Officer Monroe attested that after Petitioner was advised of his constitutional rights and acknowledged he understood his rights, he told the detectives he was aware of the incident but he was not there, and during the time of the incident he was at his girlfriend's house. Id. at 539. Petitioner also told the police it must be a case of mistaken identity. Id. Petitioner clarified that he had knowledge of the incident because he had received a phone call and was told two guys jumped another guy. Id. at 540. Petitioner repeated that he was with his girlfriend and it was a case of mistaken identity. Id. Petitioner concluded his statement by saying that if the detectives had further questions, they would have to ask Petitioner's attorney. Id.

         Officer Monroe admitted he did not follow-up on the girlfriend, nor did he attempt to contact any of Petitioner's family members, although Officer Monroe stated he was partly responsible for the investigation in conjunction with the homicide unit. Id. at 541. When asked if it was the responsibility of the citizen to contact the police to help conduct an investigation, Mr. Monroe responded no. Id.

         Officer Monroe said he did interview Petitioner in June and Petitioner agreed to talk to him, and Petitioner told the officer his girlfriend's name was Shantell Smith, but again, Officer Monroe did not follow-up on the information. Id. at 542. On re-direct, the state asked what happens when an individual asks for an attorney, and Officer Monroe responded the interview is concluded. Id. at 555-56. On re-cross examination, Officer Monroe was again asked if Petitioner mentioned Shantell Smith on June 26, 2004, and Officer Monroe responded that Petitioner said he may have been with his girlfriend Shantell Smith. Id. at 566. Officer Monroe stated he never made any attempt to contact Shantell Smith. Id. at 567. After review of the video of the interview, Officer Monroe admitted that Petitioner said he was at Shantell Smith's house on Dunn Avenue during the time of the incident, not that he may have been with his girlfriend. Id. at 578.

         The Court is not convinced defense counsel's performance fell below an objective standard of reasonableness "by opening the door" to evidence of post-arrest silence and post-Miranda invocation of right to counsel. Defense counsel's actions were well within the scope of permissible performance. She laid the foundation with Ms. Smith by asking if she were present at the time of Petitioner's arrest and eliciting testimony about providing identification, a driver's license, which would necessarily include an address. Also of import, although Officer Monroe said he did not know who Ms. Smith was, he later admitted that Petitioner told him during an interview that Petitioner's girlfriend's name was Shantell Smith. Significantly, when the state attempted to discredit Ms. Smith's alibi testimony, defense counsel asked Officer Monroe if it were a citizen's responsibility to contact the police to help conduct an investigation, and Officer Monroe responded in the negative, after admitting that he never followed-up by reaching out to Ms. Smith during the investigation.

         With respect to the stipulation to allow questioning in regards to the initial interview of Petitioner, the record is clear that defense counsel conferred with Petitioner about the proposed agreement before accepting the agreement, the court explained the agreement and asked Petitioner several times if he agreed with the stipulation, and ultimately, Petitioner decided to accept the agreement and enter into the stipulation. Indeed, with Petitioner's consent and agreement, defense counsel decided to put Petitioner's statement into evidence although it allowed the jury to learn of his request for counsel during the initial interrogation because it was necessary to corroborate Ms. Smith's testimony that the alibi was not a recent fabrication since Petitioner promptly told the detectives he was at his girlfriend's house in the initial interview.

         "The standard for effective assistance is reasonableness, not perfection." Brewster, 913 F.3d at 1056 (citations omitted). Petitioner has failed to establish that no competent counsel would have taken the steps counsel did in this trial.

         Petitioner failed to carry his burden of showing that counsel's representation fell outside the wide range of reasonably professional assistance. Even assuming deficient performance by counsel, Petitioner has not shown resulting prejudice. There is not a reasonable probability that the outcome of the case would have been different if trial counsel had taken the actions suggested by Petitioner. Defense counsel's performance did not fall below an objective standard of reasonableness prejudicing the defense. As such, ground one is due to be denied.

         B. Ground Two

         In his second ground, Petitioner raises a claim of the ineffective assistance of trial counsel for failure to adequately prepare for the state's impeachment of Shantell Smith regarding delay in coming forward with alibi information. Petition at 8. Petitioner raised this issue in the second ground of his Rule 3.850 motion. Ex. GGG at 716-20. The circuit court denied relief. Id. at 1249-50. The 1st DCA per curiam affirmed. Ex. JJJ.

         The circuit court, in addressing Petitioner's claims of ineffective assistance of counsel, adopted the state's response, which set forth the two-pronged Strickland standard of review for the claims grounded in the Sixth Amendment. Ex. GGG at 1249-50. Finding no deficient performance or prejudice, the circuit court denied relief. Id.

         The record demonstrates defense counsel made a concerted effort to diminish the impact of the state's cross examination of Ms. Smith. As noted under ground one, the defense decided to enter into a stipulation in order to counter the state's contention of recent fabrication. As the trial court stated, it is a common question to ask an alibi witness if the witness ever tried to contact the police. Ex. C at 692. In this instance, Ms. Smith had contacted defense counsel, not the police. Thus, the trial court concluded that what Ms. Smith told defense counsel was irrelevant to the state's impeachment. Id. As such, Petitioner failed to demonstrate prejudice, because even if his attorney had testified herself or called someone from her office to testify, it would not have affected the impact of the state's cross examination of Ms. Smith; therefore, it would not have resulted in a different outcome. Consequently, there was no deficient performance.

         Moreover, the trial record demonstrates Petitioner's attorney adequately prepared Ms. Smith for impeachment. Ms. Smith testified she thought the police had been informed that Petitioner was with her at the time of the offense.[4] Furthermore, Ms. Smith testified she believed it was part of the detectives's job to contact her and obtain relevant information. She also expressed her concern when the detectives did not contact her. Finally, she testified that she took it upon herself to contact defense counsel as soon as she found out the identity of counsel, noting that no detectives had contacted her.

         The 1st DCA per curiam affirmed the circuit court's decision. Ex. JJJ. This decision is an adjudication on the merits and is entitled to deference under 28 U.S.C. § 2254(d). Applying Wilson's look-through presumption, the rejection of the claim of ineffective assistance of counsel for failure to adequately prepare Ms. Smith for the state's impeachment was based on a reasonable determination of the facts and a reasonable application of Strickland.

         The 1st DCA's decision is not inconsistent with Supreme Court precedent, and the state court's adjudication of this claim is not contrary to or an unreasonable application of Strickland, or based on an unreasonable determination of the facts. When considering the claim of ineffective assistance of counsel, this Court must try to eliminate the distorting effects of hindsight, as counseled to do so in Strickland, 466 U.S. at 689.

         The Court recognizes, "[t]here are countless ways to provide effective assistance in any given case." Id. The trial court found neither deficient performance or prejudice. As stated previously, AEDPA deference is warranted. The record shows the 1st DCA affirmed the decision of the trial court in denying this ground, and this Court will presume that the state court adjudicated the claim on its merits, as there is an absence of any indication or state-law procedural principles to the contrary. Since the last adjudication on the merits is unaccompanied by an explanation, it is Petitioner's burden to show there was no reasonable basis for the state court to deny relief. He has failed to do so. The Court concludes that the state court's adjudication of this claim is not contrary to or an unreasonable application of Strickland, or based on an unreasonable determination of the facts. Based on the above, Petitioner is not entitled to habeas relief on ground two.

         C. Ground Three

         In his third ground for relief, Petitioner raises a claim of ineffective assistance of trial counsel for failure to object to the prosecutor's closing argument with regard to excessive comments on Petitioner's post-arrest silence and post-Miranda invocation of right to counsel. Petition at 10. Petitioner raised this claim in ground three of his Rule 3.850 motion. Ex. GGG at 721-22. The circuit court denied post conviction relief on this ground. Id. ...


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