United States District Court, M.D. Florida, Jacksonville Division
J. DAVIS UNITED STATES DISTRICT JUDGE.
a Petition under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody (Petition) (Doc. 1),
Petitioner, Shuron Antwoune Hester, challenges his state
court (Duval County) conviction for one count of sexual
battery, one count of lewd or lascivious molestation, and two
counts of child abuse. Respondents, in response, filed an
Answer to Petition for Writ of Habeas Corpus (Response) (Doc.
Petitioner opted to file a Reply to the State's Response
to the Petition for Writ of Habeas Corpus (Reply) (Doc. 32).
has the burden to establish 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). In this
case, the pertinent facts are fully developed in this record
or the record otherwise precludes habeas
relief; therefore, the Court can "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).
Petitioner has not met his burden as the record refutes the
asserted factual allegations or otherwise precludes habeas
relief. Thus, the Court finds Petitioner is not entitled to
an evidentiary hearing. Schriro v. Landrigan, 550
U.S. 465, 474 (2007).
Petition presents eleven grounds for habeas relief; however,
Petitioner abandoned ground eleven. See Notice of Abandonment
of Claim (Doc. 6). The remaining ten grounds before the Court
are: (1) the trial court erred in allowing testimony
regarding allegations that related to separate child abuse
charges against Petitioner; (2) the ineffective assistance of
counsel for failure to object to defects in count 3 of the
information; (3) the ineffective assistance of counsel for
failure to conduct a meaningful voir dire by failing to
question the prospective jurors as to their state of mind if
Petitioner did not testify or present a defense; (4) the
ineffective assistance of counsel for failure to object to
numerous improper closing remarks; (5) the denial of due
process because the evidence was legally insufficient to
sustain his convictions for sexual battery and lewd and
lascivious molestation; (6) the ineffective assistance of
counsel for failure to request a jury instruction as to the
permissive lesser included offenses for lewd and lascivious
molestation; (7) the ineffective assistance of counsel for
failure to impeach the victim with prior inconsistent
statements; (8) the ineffective assistance of counsel for
failure to impeach Detective Maynard's testimony; (9) the
ineffective assistance of counsel for failure to investigate,
consult, and obtain an expert witness to refute Ms.
Green's testimony; and (10) the ineffective assistance of
counsel for failure to videotape the deposition of the
STANDARD OF REVIEW
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.)
(citing Virginia v. LeBlanc, 137 S.Ct. 1726, 1728
(2017) (per curiam)), cert. denied, 2019 WL 5150550 (2019).
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.
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).
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).
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).
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).
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).
does not satisfy the “in custody” requirement of
28 U.S.C. § 2254(a) as to the two child abuse counts
(state Nos. 2012-CF-5805 & 2012-CF-5806). Response at
10-11. The trial court sentenced Petitioner to concurrent
sentences of 468 days and credited him with 468 days of time
incarcerated for these convictions. Ex. K. Therefore,
Petitioner's sentences for child abuse expired at
does meet the “in custody” requirement as to the
sexual battery and lewd and lascivious molestations counts.
The trial court granted a motion for judgment of acquittal as
to an additional count of sexual battery, charged in count 2
of the information. Thus, the only convictions open to
collateral attack in this federal habeas proceeding are
counts one (sexual battery) and count three (lewd and
lascivious molestation, which became count two at trial).
EXHAUSTION AND PROCEDURAL DEFAULT
ground one Petitioner claims the trial court erred in
allowing testimony regarding allegations that related to
separate child abuse charges. Petition at 4. Respondents
assert Petitioner never exhausted a claim of constitutional
dimension with respect to ground one and Petitioner does not
present a claim of constitutional dimension in this Petition.
Respondents submit that Petitioner raises a claim of trial
court error, a state law claim, by asserting: “[t]he
trial court erred in allowing testimony that the Petitioner
had previously physically abused A.B. the victim in this
case, by hitting her with his hand or with an electrical type
cord.” Petition at 4.
raised this same contention on direct appeal. Ex. F at 18-25.
He argued the evidence was improperly admitted and should
have been excluded. Id. at 24.
addressing the question of exhaustion, this Court must ask
whether the claim was raised in the state court proceedings
and whether the state court was alerted to the federal nature
of the claim:
Before seeking § 2254 habeas relief in federal court, a
petitioner must exhaust all state court remedies available
for challenging his conviction. See 28 U.S.C. § 2254(b),
(c). For a federal claim to be exhausted, the petitioner must
have "fairly presented [it] to the state courts."
McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir.
2005). The Supreme Court has suggested that a litigant could
do so by including in his claim before the state appellate
court "the federal source of law on which he relies or a
case deciding such a claim on federal grounds, or by simply
labeling the claim 'federal.'" Baldwin v.
Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64
(2004). The Court's guidance in Baldwin "must be
applied with common sense and in light of the purpose
underlying the exhaustion requirement"-namely, giving
the state courts "a meaningful opportunity" to
address the federal claim. McNair, 416 F.3d at 1302.
Thus, a petitioner could not satisfy the exhaustion
requirement merely by presenting the state court with
"all the facts necessary to support the claim," or
by making a "somewhat similar state law claim."
Kelley, 377 F.3d at 1343-44. Rather, he must make
his claims in a manner that provides the state courts with
"the opportunity to apply controlling legal principles
to the facts bearing upon (his) [federal] constitutional
claim." Id. at 1344 (quotation omitted).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d
1342, 1351-52 (11th Cir. 2012), cert. denied, 568 U.S. 1104
direct appeal, Petitioner failed to reference the federal
source of law or any case deciding the claim on federal
grounds, and he did not label the claim as federal. Thus,
Petitioner never gave the state courts a meaningful
opportunity to address a constitutional claim.
thorough review of the record before the Court, the Court
concludes Petitioner failed to exhaust a constitutional claim
in the state courts with respect to ground one. It is clear
from state law that any future attempts at exhaustion would
be futile. To the extent Petitioner is attempting to raise a
constitutional claim at this juncture, the claim is
unexhausted and procedurally defaulted.
has failed to show cause and prejudice or that a fundamental
miscarriage of justice will result if the Court does not
reach the merits of ground one. Consequently, ground one is
due to be denied.
two, three, five, and eight are also procedurally defaulted.
Although Petitioner presented these grounds in his Rule 3.850
post-conviction motion, after denial of post-conviction
relief, he did not include these grounds in his Amended
Initial Brief of Appellant. Ex. Q. As noted by Respondents,
“[a]lthough Petitioner appealed following the circuit
court's denial of post-conviction relief after an
evidentiary hearing on other grounds, he did not present its
summary denial of [these] claims of ineffective assistance of
counsel” within his brief on appeal. Response at 28,
37-38, 53, 73. As such, Respondents assert Petitioner has
failed to exhaust grounds two, three, five, and eight, and as
a result, these grounds are procedurally barred in federal
First District Court of Appeal (1st DCA), in 2018, explained:
Before 2014, Rule 9.141(b)(2) was entitled “Summary
Grant or Denial of Motion Without Evidentiary Hearing.”
Fla. R. App. P. 9.141(b)(2) (2013). This rule set forth
special appellate rules, which provided for a limited record
and limited briefing, and applied whenever the trial court
denied the motion without any evidentiary hearing.
If the trial court held an
evidentiary hearing, this rule did not apply, even if the
defendant was appealing the denial of a claim for which the
court did not hold an evidentiary hearing. See
Williams v. State, 24 So.3d 1252, 1252 n.1 (Fla. 1st
DCA 2009). Instead, Rule 9.141(b)(3) (entitled “Grant
or Denial of Motion after Evidentiary Hearing”), which
contains essentially routine appellate rules regarding the
record and briefing, applied to appeals of such mixed
This rule was made even clearer in 2014, when the Supreme
Court amended the title of Rule 9.141(b)(2) to read
“Summary Grant or Denial of All Claims Raised in a
Motion Without Evidentiary Hearing.” Fla. R. App. P.
9.141(b)(2) (2014) (emphasis supplied). See In re
Amendments to Fla. Rules of Appellate Procedure, 183
So.3d 245, 255 (Fla. 2014). It is now beyond dispute that
Rule 9.141(b)(2) applies only when the trial court
holds no evidentiary hearing at all.
Cuomo v. State, 257 So.3d 584, 586 (Fla. 1st DCA
2018) (emphasis added) (footnote omitted).
review, effective January 1, 2015, the 2014 changes to the
rule made it abundantly clear that if an evidentiary hearing
is held on one or more claims, briefs must be filed. Rule
9.141(b)(3), Fla. R. App. P. In Florida, the issue must not
only be raised in the appeal brief, it must contain argument
or be deemed abandoned. Atwater v. Crosby, 451 F.3d
799, 810 (11th Cir. 2006), cert. denied, 549 U.S. 1124
(2007); Marshall v. State, 854 So.2d 1235, 1252
(Fla. 2003) (per curiam) (citing Shere v. State, 742
So.2d 215, 218 n.6 (Fla. 1999) (per curiam)); Carroll v.
State, 815 So.2d 601, 609 n.7 (Fla. 2002).
a petitioner must exhaust state court remedies prior to
presenting a claim to this Court:
An applicant's federal writ of habeas corpus will not be
granted unless the applicant exhausted his state court
remedies. 28 U.S.C. § 2254(b), (c). A claim must be
presented to the highest court of the state to satisfy the
exhaustion requirement. O'Sullivan v. Boerckel,
526 U.S. 838 (1999); Richardson v. Procunier, 762
F.2d 429, 430(5th Cir. 1985); Carter v. Estelle, 677
F.2d 427, 443 (5th Cir. 1982). In a Florida non-capital case,
this means the applicant must have presented his claims in a
district court of appeal. Upshaw v. Singletary, 70
F.3d 576, 579 (11th Cir. 1995). The claims must be presented
in State court in a procedurally correct manner. Id.
Moreover, the habeas applicant must have presented the State
courts with the same federal constitutional claim that is
being asserted in the habeas petition. "It is not
sufficient merely that the federal habeas petitioner has been
through the state courts ... nor is it sufficient that all
the facts necessary to support the claim were before the
state courts or that a somewhat similar state law claim was
made." Kelley v. Sec'y, Dep't of Corr.,
377 F.3d 1317 (11th Cir. 2004) (citing Picard v.
Connor, 404 U.S. 270, 275-76 (1971)); Anderson v.
Harless, 459 U.S. 4, 6 (1982). A petitioner is required
to present his claims to the state courts such that the
courts have the "opportunity to apply controlling legal
principles to the facts bearing upon [his] constitutional
claim." Picard v. Connor, 404 U.S. 270, 275-77
(1971). To satisfy this requirement, "[a] petitioner
must alert state courts to any federal claims to allow the
state courts an opportunity to review and correct the claimed
violations of his federal rights." Jimenez v. Fla.
Dep't of Corr., 481 F.3d 1337 (11th Cir. 2007)
(citing Duncan v. Henry, 513 U.S. 364, 365 (1995).)
"Thus, to exhaust state remedies fully the petitioner
must make the state court aware that the claims asserted
present federal constitutional issues." Snowden v.
Singletary, 135 F.3d 732, 735 (11th Cir. 1998).
Aguilera v. Jones, No. 15-CV-20406, 2016 WL 791506,
at *7 (S.D. Fla. Jan. 13, 2016), report and recommendation
adopted by 2016 WL 932808 (S.D. Fla. Mar. 10, 2016).
failing to present grounds two, three, five, and eight in his
appeal brief and include argument, Petitioner abandoned these
grounds. As such, he did not properly exhaust these claims in
state court. See Atwater, 451 F.3d at 810 (finding
failure to meet the exhaustion requirement would result in
the claims being procedurally barred, resulting in a
procedural default for federal habeas purposes).
Reply, Petitioner does not attempt to show cause and
prejudice or that a fundamental miscarriage of justice will
result if grounds two, three, five, and eight are not
addressed on the merits. Due to Petitioner's abandonment
of the claims in the state court, the Court finds these
claims unexhausted and procedurally defaulted. Thus,
Petitioner is procedurally barred from ...