United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Petitioner Terry
Ragland’s Petition for a Writ of Habeas Corpus under 28
U.S.C. § 2254 (Doc. #1) filed on June 13, 2016. The
Respondent Secretary of the Department of Corrections (DOC)
filed her Response (Doc. #10) on December 23, 2016.
Petitioner filed his Reply (Doc. #16) on March 10, 2017. The
Petition is briefed and ripe for the Court’s review.
For the reasons set forth below the Court denies the
was charged with second-degree murder with a firearm (Count
I), attempted home invasion robbery with a firearm causing
death or great bodily harm (Count II), and first-degree
burglary while armed (Count III). (Ex. 1, Vol. 1 at 20-22).
Petitioner was noticed as a habitual felony offender (Ex. 1,
Vol. I at 31). On February 8, 2012, the jury returned a
verdict of guilty on all three counts. (Ex. 1, Vol. VII at
162-163). The burglary count was vacated on double jeopardy
grounds. Petitioner was sentenced on April 11, 2012, to life
in prison on the second-degree murder Count I, to run
concurrently with the thirty-year prison sentence entered on
the attempted home invasion robbery Count II. Petitioner was
designated as a habitual felony offender (Ex. 1, Vol. VIII 8
at 355-362; Vol. IX at 418-428).
appealed his conviction and sentences to the Second District
Court of Appeal. (Ex. 2). The Second District Court of Appeal
affirmed per curium. Ragland v. State, 121
So.3d 47 (Fla. 2d DCA 2013) (Table).
11, 2014, Petitioner filed a Rule 3.850 post-conviction
motion raising nine claims of ineffective assistance of
counsel. On September 8, 2015, the Post-Conviction Court
denied Petitioner’s Rule 3.850 Motion. Petitioner then
appealed to the Second District Court of Appeal which
affirmed per curium and mandate issued on April 28,
2016. Ragland v. State, 189 So.3d 71 (Fla. 2d DCA
2016) (Table);(Ex. 10). Petitioner now files the instant
Petition. Respondent concedes the Petition is timely filed in
this Court but argues Grounds Ten and Eleven are unexhausted
and procedurally barred.
The Antiterrorism Effective Death Penalty Act
the AEDPA, federal habeas relief may not be granted regarding
a claim adjudicated on the merits in state court 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;
(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). This standard is both mandatory and
difficult to meet. White v. Woodall, 572 U.S. 415,
419 (2014). A state court’s summary rejection of a
claim, even without explanation, qualifies as an adjudication
on the merits which warrants deference. Ferguson v.
Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008).
established federal law” consists of the governing
legal principles, rather than the dicta, set forth in the
decisions of the United States Supreme Court at the time the
state court issues its decision. White, 572 U.S.
419; Carey v. Musladin, 549 U.S. 70, 74 (2006)
(citing Williams v. Taylor, 529 U.S. 362, 412
(2000)). A decision is “contrary to” clearly
established federal law if the state court either: (1)
applied a rule that contradicts the governing law set forth
by Supreme Court case law; or (2) reached a different result
from the Supreme Court when faced with materially
indistinguishable facts. Ward v. Hall, 592 F.3d
1144, 1155 (11th Cir. 2010); Mitchell v. Esparza,
540 U.S. 12, 16 (2003).
court decision involves an “unreasonable
application” of the Supreme Court’s precedents if
the state court correctly identifies the governing legal
principle, but applies it to the facts of the
petitioner’s case in an objectively unreasonable
manner, Brown v. Payton, 544 U.S. 133, 134 (2005);
Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir.
2000), or “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply”, Id. at 531 (quoting Williams,
529 U.S. at 406). The unreasonable application inquiry
“requires the state court decision to be more than
incorrect or erroneous, ” rather, it must be
“objectively unreasonable.” Lockyer v.
Andrade, 538 U.S. 63, 75-77 (2003) (citation omitted);
Mitchell, 540 U.S. at 17-18; Ward, 592 F.3d
at 1155. Petitioner must show that the state court's
ruling was “so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fair-minded disagreement.”
White, 572 U.S. at 419 (quoting Harrington v.
Richter, 562 U.S. 86, 101 (2011)).
the Supreme Court has stated that “a decision
adjudicated on the merits in a state court and 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[.]”
Miller–El v. Cockrell, 537 U.S. 322, 340
(2003) (dictum). When reviewing a claim under § 2254(d),
a federal court must remember that any “determination
of a factual issue made by a State court shall be presumed to
be correct [, ]” and the petitioner bears “the
burden of rebutting the presumption of correctness by clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1);
see, e.g., Burt v. Titlow, 571 U.S. 12,
15-16 (2013); 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 AEDPA,
“conclude the decision was unreasonable or that the
factual premise was incorrect by clear and convincing
Standard for Ineffective Assistance of Counsel
Strickland v. Washington, the Supreme Court
established a two-part test for determining whether a
convicted person is entitled to relief on the ground that his
counsel rendered ineffective assistance. 466 U.S. 668, 687-88
(1984). A petitioner must establish that counsel’s
performance was deficient and fell below an objective
standard of reasonableness and that the deficient performance
prejudiced the defense. Id. This is a “doubly
deferential” standard of review that gives both the
state court and the petitioner’s attorney the benefit
of the doubt. Burt, 571 U.S. at 13 (citing
Cullen v. Pinholster, 563 U.S. 170, 189 (2011)).
focus of inquiry under Strickland’s performance prong
is “reasonableness under prevailing professional
norms.” Strickland, 466 U.S. at 688-89. In
reviewing counsel's performance, a court must adhere to a
strong presumption that “counsel’s conduct falls
within the wide range of reasonable professional
assistance.” Id. at 689. Indeed, the
petitioner bears the heavy burden to “prove, by a
preponderance of the evidence, that counsel’s
performance was unreasonable[.]” Jones v.
Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court
must “judge the reasonableness of counsel’s
conduct on the facts of the particular case, viewed as of the
time of counsel’s conduct, ” applying a
“highly deferential” level of judicial scrutiny.
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)
(quoting Strickland, 466 U.S. at 690).
the prejudice prong of the Strickland standard,
Petitioner’s burden to demonstrate prejudice is high.
Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir.
2002). Prejudice “requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687. That is, “[t]he
defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Id. at 694. A reasonable probability is “a
probability sufficient to undermine confidence in the
Exhaustion and Procedural Default
AEDPA precludes federal courts, absent exceptional
circumstances, from granting habeas relief unless a
petitioner has exhausted all means of available relief under
state law. Exhaustion of state remedies requires that the
state prisoner “fairly presen[t] federal claims to the
state courts in order to give the State the opportunity to
pass upon and correct alleged violations of its
prisoners’ federal rights[.]” Duncan v.
Henry, 513 U.S. 364, 365 (1995) (citing Picard v.
Connor, 404 U.S. 270, 275-76 (1971)). The petitioner
must apprise the state court of the federal constitutional
issue, not just the underlying facts of the claim or a
similar state law claim. Snowden v. Singletary, 135
F.3d 732 (11th Cir. 1998). In addition, a federal habeas
court is precluded from considering claims that are not
exhausted but would clearly be barred if returned to state
court. Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991) (if a petitioner has failed to exhaust state remedies
and the state court to which the petitioner would be required
to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred,
there is a procedural default for federal habeas purposes
regardless of the decision of the last state court to which
the petitioner actually presented his claims). Finally, a
federal court must dismiss those claims or portions of claims
that have been denied on adequate and independent procedural
grounds under state law. Coleman, 501 U.S. at 750.
If a petitioner attempts to raise a claim in a manner not
permitted by state procedural rules, he is barred from
pursuing the same claim in federal court. Alderman v.
Zant, 22 F.3d 1541, 1549 (11th Cir. 1994).
default will be excused only in two narrow circumstances.
First, a petitioner may obtain federal review of a
procedurally defaulted claim if he can show both
“cause” for the default and actual
“prejudice” resulting from the default. “To
establish cause for a procedural default, a petitioner must
demonstrate that some objective factor external to the
defense impeded the effort to raise the claim properly in
state court.” Wright v. Hopper, 169 F.3d 695,
703 (11th Cir. 1999). To establish prejudice, a petitioner
must show that there is at least a reasonable probability
that the result of the proceeding would have been different.
Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir.
second exception, known as the fundamental miscarriage of
justice, only occurs in an extraordinary case, where a
“constitutional violation has probably resulted in the
conviction of one who is actually innocent[.]”
Murray v. Carrier, 477 U.S. 478, 479-80 (1986).
Actual innocence means factual innocence, not legal
insufficiency. Bousley v. United States, 523 U.S.
614, 623 (1998). 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. Schlup v. Delo, 513 U.S. 298,
327 (1995). In addition, “[t]o be credible, a claim of
actual innocence must be based on [new] reliable evidence not
presented at trial.” Calderon v. Thompson, 523
U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at
brings eleven grounds for relief.
alleges Trial Counsel was ineffective for making deliberate
or misleading remarks during his opening statement regarding
what the evidence would establish. Trial Counsel stated:
The State will be presenting several witnesses. Pay attention
to what they don’t have. I expect the State’s
evidence is not going to show that Mr. Ragland was involved
in this crime. There is not any physical evidence. I
don’t think you’ll hear any physical evidence of
him being there, ” and “You are not going to hear
any evidence of him being there. Their cases [sic] is going
to come down to one young man named Zach.
(Doc. #1 at 4; Ex. 9, Vol. III at 258-59). Petitioner claims
the trial evidence refuted Trial Counsel’s opening
especially the testimony of Zach Holmes which placed him at
the scene. (Doc. #1 at 4). Respondent counters that Trial
Counsel’s opening statement did not mislead the jury so
there is no prejudice under Strickland.
filed a Rule 3.850 motion which the Post-Conviction Court
In the first allegation, Defendant alleges that counsel was
ineffective for making misleading comments during opening
statement concerning the evidence. Specifically, Defendant
alleges that counsel made misrepresentations to the jury when
he said that the jury would not hear about any physical
evidence showing that Defendant was involved in the crime,
except for the testimony of one witness, named Zachary
Holmes. See Defendant’s motion p. 4. However, Defendant
submits that besides Holmes’ testimony, the State also
presented the testimony of Jamie Thorpe, Michael Holmes,
Ralph Goodwin, and Detective Christy Ellis, who all presented
incriminating testimony against Defendant. Defendant
concludes that counsel’s misleading opening remarks,
that Defendant was not at the scene of the crime, likely led
the jury to believe counsel was purposely deceiving them in
light of [the] fact that counsel provided no other defense
As the State points out, and a review of defense
counsel’s opening statement reveals, counsel was not
“purposely deceiving” the jury. See Court Exhibit
C, Defense’s Opening Argument Pp. Vol. II, pp. 258-259
of the trial transcript, attached hereto. In the usual
manner, counsel presented an overview of the defense’s
version of the case to the jury. Furthermore, counsel did not
misstate the fact that there was no physical evidence
introduced by the State that put Defendant at the scene of
the crime. The victim’s girlfriend only identified the
codefendant as one of the perpetrators not Defendant. Because
counsel’s opening statement was, in fact, a true
representation of the evidence or lack of evidence against
Defendant, Defendant’s allegation that counsel
purposely misled the jury is without merit and conclusively
refuted by the record.
(Ex. 9, Vol. I at 653-54). The Second District Court of
Appeal affirmed per curium.
Trial Counsel’s opening statement would not have
changed the outcome of the trial because the evidence
mentioned in the opening statement was accurately presented.
Accordingly, Trial Counsel’s opening statement did not
rise to the level of ineffective assistance because there was
neither deficient performance nor prejudice under Strickland.
alleges Trial Counsel rendered ineffective assistance of
counsel by failing to request a special jury instruction
under the independent act doctrine. Petitioner argues the
evidence supports an independent act jury instruction because
the murder of the victim was outside the original design of
the planned robbery. Respondent replies that Petitioner
admitted to the common plan to commit an armed robbery, of
which he was a willing participant and that the evidence
refuted Petitioner’s claim he did not know that a
firearm would be used.
Florida law, the independent act doctrine applies “when
one co-felon, who previously participated in a common plan,
does not participate in acts committed by his co-felon,
‘which fall outside of, and are foreign to, the common
design of the original collaboration.’” Ray
v. State, 755 So.2d 604, 609 (Fla. 2000) (quoting
Ward v. State, 568 So.2d 452, 453 (Fla. 3d DCA 1990)).
Under these limited circumstances, “a defendant whose
co-felon exceeds the scope of the original plan is exonerated
from any punishment imposed as a result of the independent
filed a Rule 3.850 motion which the Post-Conviction Court
In the second allegation, Defendant alleges that counsel was
ineffective for failing to request a special jury instruction
based on the independent act doctrine embodied in the
standard jury instructions on principals and independent acts
where evidence existed to support the instruction.
Specifically, Defendant alleges that counsel should have
advised or consulted Defendant concerning this defense and
failing to request the instruction, Therefore, Defendant
maintains that counsel was ineffective for falling to pursue
an independent act theory, which also impacted
Defendant’s decision not to testify. Defendant further
alleges that had counsel pursued this defense, he would have
testified in order to show that his co-felon acted outside
the original plan or collaboration, which was to take drugs
or money with non-deadly force.
In regard to the second allegation, as the State points out,
Defendant was not entitled to an independent act instruction,
therefore, he cannot show prejudice. Where a defendant was a
willing participant in the underlying felony and the murder
is a result of forces they set in motion, no independent act
instruction is appropriate. Ray v. State, 775 So.2d
604, 609 (Fla. 2000). In fact, even Defendant admits that the
State could have refuted the independent act theory because
“Jamie Thorpe testified that the assailants both bad
guns upon entering and pistol-whipped Eric....” See
Defendant’s motion p. 10.
Moreover, nor did Defendant abandon the robbery upon seeing
his co-felon holding a gun. Trial testimony shows that during
the entire episode Defendant continued as an active
participant in the robbery and resulting murder. Based on the
foregoing, counsel could not have been ineffective for
failing to request an inappropriate instruction.
(Ex. 9, Vol. I at 654-55). The Second District Court of
Appeal affirmed per curium.
claim is not supported by the evidence from the record. Trial
witness Zachary Holmes was in the vehicle with the Petitioner
and his Co-Defendant as they drove to the victim’s
residence on the night of the murder. (Ex. 9, Vol. III at
391). Holmes told Cape Coral Police that Petitioner and his
Co-Defendant said they were going to commit a robbery and
offered him money to guide him to the victim’s
residence. (Ex. 9, Vol. III at 404-05).
Thorpe, an eyewitness to the robbery who was present during
the murder, testified that she and the victim were at home
after 2:00 a.m. when two men dressed in black wearing masks
entered their home through the front door. Thorpe testified:
Q. “then what happened”
A. “I saw two men in black covered from head to
Q. “Did they say anything?”
A. “Where’s the money? Where’s the bag of