Ragland v. Florida Attorney General (Lee County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

TERRY RAGLAND,

Petitioner,

v. Case No: 2:16-cv-457-FtM-29MRM

SECRETARY, DOC,

Respondent.

OPINION AND ORDER

This 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 Petition.

I.

Petitioner 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).

Petitioner 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).

On June 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.

II.

a. The Antiterrorism Effective Death Penalty Act (AEDPA)

Under 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; or

(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).

“Clearly 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).

A state 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)).

Finally, 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 evidence”).

b. Standard for Ineffective Assistance of Counsel

In 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)).

The 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).

As to 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 outcome.” Id.

c. Exhaustion and Procedural Default

The 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).

Procedural 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. 2003).

The 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 324.

III.

Petitioner brings eleven grounds for relief.

Ground One

Petitioner 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.

Petitioner filed a Rule 3.850 motion which the Post-

Conviction Court denied, finding:

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

than denial.

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.

Eliminating 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.

Ground Two

Petitioner 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.

Under 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 act.” Id.

Petitioner filed a Rule 3.850 motion which the Post-

Conviction Court denied, finding:

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.

Petitioner’s 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).

Jamie 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 toe.”

Q. “Did they say anything?”

A. “Where’s the money? Where’s the bag of drugs? Where’s the

money?”

Q. “Okay. Were they wearing masks?”

A. “Yes.” . . .

Q. “Were they holding anything?”

A. “Guns.”

Q. “Once they came in the door and started demanding money

and drugs, what happened?”

A. “[the victim] said, I don’t know what you’re talking about.

I don’t have anything. I don’t have anything. I don’t know what

you’re talking about. Um [the victim] was hit. He fell to his

knees.”

Q. “How was [the victim] hit?”

A. “He was pistol-whipped, with a gun.”

Q. “What does it mean to be pistol-whipped?”

A. “Pistol-whipped means to be hit with the butt of the gun.”

Q. “And what part of his body was struck with the gun?”

A. His face. His head.”

(Ex. 9, Vol. III at 267).

Thorpe continued that after pistol whipping the victim, one

assailant [Petitioner] tased the victim. (Ex. 9, Vol. III at 268).

The victim said he would give them what they were after and took

the assailants to the back bedroom. (Ex. 9, Vol. III at 270-71).

Thorpe heard a scuffle and a loud pop she believed to be gun fire.

(Ex. 9, Vol. III at 271). The victim was shot once in the chest.

The assailants then threaten Thorpe and her child with a gun. (Ex.

9, Vol. III at 273-74). After a quick search of the residence,

the assailants fled.

The trial testimony of Thorpe and Zach Holmes shows Petitioner

was a willing participant in the underlying armed robbery and the

murder resulted of forces Petitioner set in motion by planning and

participating in the crime. Petitioner never indicated, and there

is no evidence to suggest, that Petitioner tried to flee the scene

or dissuade his Co-Defendant from using a gun during the commission

of the crime.

An independent doctrine jury instruction would have been

improper. Since Petitioner was not entitled to the jury

instruction, Trial Counsel was not constitutionally ineffective

for failing to assert a meritless argument. Denson v. United

States, 804 F. 3d 1339, 1342 (11th Cir. 2015).

Ground Three

Petitioner contends that Trial Counsel “rendered ineffective

assistance of counsel by failing to file a motion in limine and/or

object to the testimony of Detective Christie Ellis regarding

evidence/inferences of other suspects who were investigated and

excluded, excepting [Petitioner] and his Co-Felon; also the

mention of tips the police received without laying a proper

foundation.”

Respondent argues that given the evidence in the State court

proceeding Petitioner failed to establish the adjudication

resulted in a decision contrary to, or involved an unreasonable

application of, clearly established Supreme Court law, or resulted

in a decision based on an unreasonable determination of the facts.

Detective Ellis testified that she investigated numerous

individuals that had conflicts with the victim but cleared everyone

but Petitioner and his Co-Defendant. (Ex. 9, Vol. III at 479-503).

Petitioner filed a Rule 3.850 motion regarding Trial Counsel’s

failure to file a motion in limine to exclude Detective Ellis’

testimony.

The Post-Conviction Court held:

In the third allegation, Defendant alleges

that counsel was ineffective for failing to

file a motion in limine or contemporaneously

object to testimony from the case agent,

Detective Christy Ellis, regarding the extent

of the police investigation in this matter.

Specifically, Defendant alleges that Ellis’s

testimony that other suspects were

investigated and excluded, and that law

enforcement received numerous tips and other

information that validated Defendant and his

co-felon as perpetrators of the crime.

Defendant further alleges that these improper

remarks, which concluded Defendant’s guilt,

were admitted without the proper foundation

and “improperly tipped the scales in the

State’s favor, leading to the verdict.” See

footnote 7, p. 13 of Defendant’s motion.

Contrary to Defendant’s allegations in issue

three, the record demonstrates that the

questions asked by the State were proper

direct examination questions. Furthermore,

counsel did object during Ellis’s testimony

when it was proper to do so. See Court Exhibit

D, Christy Ellis’s trial testimony, Vol. III,

pp. 479-503 of the trial transcript, attached

hereto. Ellis was given specific names of

people by Thorpe, who Thorpe believed had a

conflict with the victim. The questions to

Ellis were both relevant and admissible.

Therefore, Defendant’s allegations in issue

three are conclusively refuted by the record.

(Ex. 9, Vol. I at 655-56). The Second District Court of Appeal

affirmed per curium.

A review of the record shows that Trial Counsel objected at

trial to Detective Ellis’ testimony.

Q. “And though out the course of that

day, July 10th of 2010, did you follow up in

the people who Ms. Thorpe had provided to you

as potential suspects in this case?”

A. “Yes. I’m not sure if it was that

Saturday or if it was later on Sunday, but.

Yes.”

Q. “And throughout the course of this

investigation, were you able to eliminate

those people that Ms. Thorpe had initially

mentioned to you as possible suspects in the

case?”

Objection: “I’m going to object, hearsay

Judge.”

Judge: “Overruled.”

A. “Yes, we were.”

(Ex. 9, Vol. III at 487).

And again, when Detective Ellis testified about Thorpe’s

identification of Petitioner’s Co-Defendant, Trial Counsel

objected.

Q. “Was a photo line-up eventually put together

containing a picture of TJ Tuttle”

A. “Yes.”

Q. “Was that shown to Ms. Thorpe to make any identification

in that photo lineup?”

A. “Yes she identified one of the suspects as Timothy Tuttle,

also known as TJ Tuttle.”

Q. “Were you able to determine a relationship existing between

Michael Homes, his son Zachary and the Ragland family, including

Tommy and Terry Raglan?”

A. “Yes.”

Q. “What was that relationship?”

Objection: “Hearsay.”

Judge: “Overruled.”

Thus, Trial Counsel did object to the testimony of Detective Ellis.

Although Petitioner argues Trial Counsel should have filed a

motion in limine preventing Detective Ellis’ from testifying,

whether to file a motion in limine is a strategic decision. Here,

Trial Counsel’s decision not to file a motion inline was reasonable

and did not result in prejudice to Petitioner. The questions

Ellis was asked were relevant, and Trial Counsel’s objections were

overruled, and there is no suggestion that a motion in limine would

have resulted in a different ruling by the court. Consequently,

Trial Counsel’s decision to not file a motion in limine was not

ineffective assistance under the Strickland.

Ground Four

Petitioner claims Trial Counsel was ineffective by failing to

object and move for a mistrial during eyewitness Jamie Thorpe’s

testimony because it was highly prejudicial. The Respondent

counters that Thorpe’s testimony was relevant to events that took

place in the residence during the robbery.

In denying Petitioner’s Rule 3.850 motion, the Post-

Conviction Court reasoned:

In the fourth allegation, Defendant alleges

that counsel was ineffective for failing to

object, move for a mistrial, or impeach Jamie

Thorpe’s prejudicial testimony with her prior

inconsistent statements. Specifically,

Defendant alleges that Thorpe’s pretrial

testimony that “one of the men that was in my

house went in his room and put a gun on him”

should have been used to impeach her trial

testimony one of the gunmen had a gun on her

19 month old son “[i]n his face, pretty much

in his mouth.” Defendant alleges that this

statement, by itself, could have caused the

jury to want a conviction regardless of the

circumstances. In addition, Defendant alleges

that Thorpe could have been impeached with her

conflicting prior statements concerning the

height and weight of the perpetrators and the

location of the victim in the house when he

was shot. Defendant submits that these

omissions by counsel clearly were prejudicial

since Thorpe was the only actual eyewitness to

the home invasion. Defendant further alleges

that Thorpe had a motive to lie since “the

entire episode could have been a drug deal

gone bad...” See Defendant’s motion p. 19.

As the State points out, Thorpe’s statements

concerning the fact that one of the defendants

held a gun on her son were not inconsistent

statements. She was only more specific at

trial as to where the gun was positioned.

While Defendant may feel that this specific

statement unjustly prejudiced him, the

statement was made as a recollection of

ongoing events by Thorpe that took place

during the robbery and murder. Also, contrary

to Defendant’s allegations, counsel did, in

fact, try to discredit Thorpe and her

testimony during cross-examination. See Court

Exhibit E, Jamie Thorpe’s trial testimony Vol.

II, pp. 261-296 of the trial transcript,

attached hereto. Therefore, Defendants fourth

allegation is without merit.

(Ex. 9, Vol I at 656-67).

A review of Thorpe’s testimony shows that Trial Counsel tried

to impeach Thorpe’s credibility during cross examination. Thorpe

was impeached regarding whether she knew of the victim’s drug

dealing and whether she had ever aided the victim’s drug

activities. (Ex. 9, Vol. III at 280-82; 282-84). Trial Counsel

also impeached Thorpe’s identification testimony with a video of

her description of the assailants’ height, eye color, and build to

the police sketch artist. (Ex. 9, Vol. III at 289-93).

Thorpe’s testimony was not unduly prejudicial because she

merely testified to Petitioner’s actions at her residence during

the robbery. Thorpe’s testimony was relevant and aided the jury

in determining Petitioner’s guilt or innocence, so the probative

value of Thorpe’s testimony substantially outweighed any prejudice

to the Petitioner. See United States v. Edouard, 485 F.3d 1324,

1346 (11th Cir. 2007) (holding “[I]n a criminal trial relevant

evidence is inherently prejudicial; it is only when unfair

prejudice substantially outweighs probative value that the rule

permits exclusion.”). Consequently, a motion for mistrial on this

ground would have been meritless and it is not deficient

performance to fail to make a meritless motion. Denson, 804 F.

3d at 1342.

Ground Five

Petitioner alleges ineffective assistance of counsel because

Trial Counsel failed to advise him of a viable defense ― the

independent act doctrine ― and that the failure of counsel to

discuss this defense with him prevented him from making an informed

decision about whether to testify.

Petitioner filed a Rule 3.850 motion which was denied by the

Post-Conviction Court as follows:

In the fifth allegation, Defendant alleges

that counsel was ineffective for failing to

advise Defendant of a viable defense, thereby,

preventing Defendant from making a fully

informed decision regarding his right to

testify. This allegation is again referring to

the independent act theory. While Defendant

admits going to the victim’s house to rob him

of drugs, money, or both, and tasering the

victim, Defendant alleges that he abandoned

the robbery after his co-defendant, Tuttle,

pulled out a gun and began pistol whipping

Eric, the victim. Defendant further submits

that he was waiting outside near the truck

when he heard a shot fired and that he had no

knowledge nor did he intend to commit an

aggravated battery or murder. Therefore,

Defendant concludes that counsel was

ineffective for failing to pursue an available

defense to the charges, However, as pointed

out in paragraph 7, Defendant was not entitled

to the independent act instruction or “theory”

based on the evidence. Moreover, Defendant’s

recollection of events is contrary to the

evidence. In any event, counsel could not have

been ineffective for failing to advise

Defendant about a theory that was not a viable

defense based on the evidence.

(Ex. 9, Vol. I at 657). The Second District Court of Appeal

affirmed per curium.

As discussed by the Court above, Petitioner was not entitled

to an independent act jury instruction because the evidence

established Petitioner was a willing participant in the underlying

armed robbery and the murder was the result of forces he helped

set in motion by planning and participating in the crime. See supra

at 12. An independent act defense would have been meritless, and

counsel is not constitutionally ineffective for failing to advise

Petitioner about a meritless defense. Denson, 804 F. 3d at 1342.

Ground Six

Petitioner argues that he received ineffective assistance of

Counsel because Trial Counsel did not move to suppress the tainted

or prejudicial identification testimony of Jamie Thorpe, who

identified Petitioner’s Co-Defendant T.J. Tuttle. Petitioner

argues the Prosecutor used Petitioner’s connection to Tuttle

during closing arguments to connect him to the crime scene.

Petitioner claims that Trial Counsel owed him a duty to suppress

Thorpe’s identification of Tuttle.

Respondent argues that given the evidence in the State court

proceeding the claim was adjudicated on the merits in State Court

and Petitioner failed to establish the adjudication resulted in a

decision contrary to, or involved an unreasonable application of,

clearly established Supreme Court law, or resulted in a decision

based on an unreasonable determination of the facts.

Thorpe testified that she saw Tuttle’s face because his mask

was pulled up during a scuffle with the victim. (Ex. 9, Vol. III

at 270-71). During her testimony, Thorpe did not identify the Co-

Defendant other than to say he was not in the courtroom. However,

Detective Ellis testified that Thorpe provided her with a

description of Tuttle who was one of the assailants and she used

Petitioner’s connection to Tuttle and the testimony of Zachary

Holmes ― another participant in the crime ― to place Petitioner at

the crime scene. (Ex. 9, Vol. III at 490-91).

In denying Petitioner’s Rule 3.850 motion, the Post-

Conviction Court stated:

In the sixth allegation, Defendant alleges

that counsel was ineffective for failing to

move to suppress Thorpe’s prejudicial

identification of Defendant’s co-defendant

Tuttle, which “was the only evidence, per se,

absent the testimony of Zachary Holmes that

connected Ragland to the crime.” See

Defendant’s motion pp. 24-25. Defendant

further alleges that her identification of

Tuttle was paramount in putting Defendant at

the scene. As the State points out, Defendant

fails to allege any viable grounds for moving

to suppress Thorpe’s identification of co-

defendant Tuttle. In order to file a motion to

suppress, counsel would have to show that

Defendant’s Fourth Amendment rights were

violated, which was not the case in this

instance. Zakzewski v. State, 866 So. 2d 688,

694 (Fla. 2001). Therefore, counsel could not

have been ineffective for failing to raise a

meritless issue. Schoenwetter v. State, 46 So.

3d 535, 546 (Fla. 2010).

(Ex. 9, Vol. I at 657-58). The Second District Court of Appeal

affirmed per curium.

Petitioner fails to state a cognizable ineffective assistance

claim. An individual can urge suppression of evidence only if his

Fourth Amendment rights were violated by the challenged search or

seizure. United States v. Padilla, 508 U.S. 77, 81 (1993); Alderman

v. United States, 394 U.S. 165, 171–72(1969). Fourth Amendment

rights are personal and cannot be vicariously asserted. United

States v. Payner, 447 U.S. 727, 731 (1980); United States v. Ramos,

12 F.3d 1019, 1023 (11th Cir. 1994). Petitioner fails to show how

his Fourth Amendment rights were violated by Thorpe’s

identification of Tuttle, and no other constitutional violation is

established. A motion to suppress based on Thorpe’s

identification of Tuttle would have been meritless and it is not

deficient performance to fail to make a meritless motion. Denson,

804 F. 3d at 1342.

Ground Seven

Petitioner claims ineffective assistance of counsel because

Trial Counsel failed to object to improper remarks made during the

prosecution’s closing argument. Respondent claims that given the

evidence in the State court proceeding Ground Seven was adjudicated

on the merits in State Court and that Petitioner failed to

establish the adjudication was contrary to or involved an

unreasonable application of, clearly established Supreme Court

law, or resulted in a decision based on an unreasonable

determination of the facts.

The Post-Conviction Court reviewed the prosecutor’s

statements and found:

In the seventh allegation, Defendant alleges

that counsel was ineffective for failing to

object to improper comments made by the State

during closing arguments. Specifically,

Defendant alleges that the State’s remark that

“you shoot someone in the back that pretty

much qualifies” to demonstrate a depraved mind

was a misstatement of the law. See Defendant’s

motion p. 27. Defendant further alleges that

the actual shooter, who was convicted in a

separate trial, was only convicted of

manslaughter. Defendant also alleges that the

State’s comments that “Eric was killed in

front of his son” and “[t]hey turned a living

father into a dead man” were highly

prejudicial, along with the statement that

“He’s guilty, its [sic] been proven.” See

Defendant’s motion p. 28. Defendant states

that the prosecutor was giving his personal

opinion on the evidence and bolstered the

testimony of the Cape Coral Police Department

Defendant submits that all of the

aforementioned comments should have been

objected to by counsel.

In order to satisfy the first prong of

Strickland, Defendant must show that counsel

made an error so serious that he was not

functioning as counsel guaranteed by the Sixth

Amendment. The Court has reviewed the State’s

closing argument and finds nothing improper in

the comments made by the State. See Court

Exhibit F, State’s Closing Argument, Vol. IV,

pp. 637-650 and 660-665 of the trial

transcript, attached hereto. Furthermore,

attorneys have a degree of latitude in

fashioning closing arguments and can advance

all legitimate arguments that can be inferred

from the evidence. Matthews v. State, 834 So.

2d 900, 901 (Fla. 4th DCA 2003). Therefore,

counsel could not have been ineffective for

failing to object or to raise a meritless

issue. Schoenwetter, at 546.

Ex. 9, Vol. I at 658-59). The Second District Court of Appeal

affirmed per curium.

Attorneys are given wide latitude during closing argument “to

review the evidence and to explicate those inferences which may

reasonably be drawn from the evidence.” Owens v. Sec’y, Fla. Dep’t

of Corr., No. 3:16-CV-889-J-39JRK, 2018 WL 1535721, at *5 (M.D.

Fla. Mar. 29, 2018) (citing Bertolotti v. State, 476 So. 2d 130,

134 (Fla. 1985)). “An attorney is allowed to argue reasonable

inferences from the evidence and to argue credibility of witnesses

or any other relevant issue so long as the argument is based on

the evidence.” Id. (citing Miller v. State, 926 So. 2d 1243, 1254–

55 (Fla. 2006)).

Here, the Prosecutor’s closing offered the jury her view of

the evidence. The Prosecutor asked the jury to draw logical

inferences from the evidence presented at trial and find the

Petitioner guilty. The Prosecutor’s closing did not violate

clearly established Supreme Court law or encourage a result based

on an unreasonable determination of the facts considering the

evidence at Petitioner’s trial. Thus, any objection would have

been meritless and failure to make a meritless objection is not

ineffective assistance of counsel. Denson, 804 F.3d at 1342.

Ground Eight

Petitioner claims Trial Counsel was ineffective for failing

to object or file a motion in limine to prohibit the State from

introducing prejudicial inferences that mislead the jury.

Respondent argues that Petitioner failed to establish he is

entitled to relief on Ground Eight.

During Petitioner’s trial, Ralph Goodwin testified that he

gave Petitioner a police taser about a month before the crime.

(Ex. 9, Vol. IV at 625-26). A cartridge was found at the murder

scene that matched the cartridges used by the police taser given

to Petitioner. (Ex. 9, Vol. III at 494-Vol. IV at 495).

The prosecutor stated in closing:

You heard from Detective Ellis as well as

Jamie Thorpe and as well as Ms. Caron, the

crime scene tech. That the taser used in this

case was one that actually had projectiles.

And it was unique because it was a police

issued taser. It had green doors. This isn’t

something everyone has. It was unique.

What did Mr. Goodwin just tell you? Well,

LCSO had been out to his house, and there was

a scuffle and they dropped a taser, and it was

found. He gave that taser to the Defendant,

that unique police issued taser, which just

happens to end up being used at the murder of

Eric.

(Ex. 9, Vol. IV at 639-40).

No one testified that the taser used at the murder scene was

the same one that Petitioner was given by Goodwin. Petitioner

argues the inference by the Prosecutor during her closing argument

misled the jury to believe that it was the Petitioner’s taser.

Petitioner argues that the closing statements prejudiced the jury

because the fact that Goodwin gave the Petitioner the same model

taser strongly inferred that the taser was the same one used during

the robbery.

Petitioner raised this issue in his Rule 3.850 motion. The

Post-Conviction Court held:

In the eighth allegation, Defendant alleges

that counsel was ineffective for falling to

file a motion in limine or contemporaneously

object to the State introducing prejudicial

inferences that served to confuse or mislead

the jury. Specifically, Defendant is referring

to the evidence concerning a police officer

taser that a witness, Goodwin, testified he

gave to Defendant a month before the incident.

Defendant admits that no one testified that

the taser cartridge at the scene of the crime

was from the one and the same taser, but that

the jury could have inferred that from the

testimony.

However, as the State points out, that is the

job of the jury to draw conclusions from the

evidence that is presented. Goodwin testified

that he gave the police taser to Defendant. As

Defendant, himself, admits no one testified

that the taser cartridge at the scene of the

crime was from the one and the same taser.

Furthermore, attorneys are allowed during

closing argument to draw logical inference

from the evidence and to advance all

legitimate arguments. Matthews, at 901.

Therefore, counsel could not have been

ineffective for failing to object or to raise

a meritless issue. Schoenwetter, at 546.

Likewise, it is highly doubtful that a motion

in limine would have been granted to exclude

relevant and admissible evidence.

(Ex. 9, Vol. I at 659). The Second District Court of Appeal

affirmed per curium.

While a prosecutor is expected to refrain from offering her

personal views on a defendant’s guilt or innocence, “a prosecutor

is free to suggest during oral argument what the jury should

conclude from the evidence before it.” United States v. Rivera,

780 F.3d 1084, 1100 (11th Cir. 2015). Thus, the Prosecutor’s

closing did not violate clearly established Supreme Court law or

encourage a result based on an unreasonable determination of the

facts about the taser.

The taser evidence was relevant, and the probative value

outweighed any prejudice to the Petitioner. See Edouard, 485 F.3d

at 1346. Any objection to the testimony about the taser evidence

would have been meritless, and failure to make a meritless

objection is not ineffective assistance of counsel. Denson, 804 F.

3d at 1342. Similarly, the decision not to file a motion in limine

did not unfairly prejudice the Petitioner’s case. The decision

was a strategic decision which was reasonable given the evidence

in the record.

Ground Nine

Petitioner alleges that although Trial Counsel filed a motion

for new trial, the motion was inadequate. Petitioner sets forth

seven factual assertions he believes Trial Counsel should have

raised in the motion for new trial:

1. The State’s witness Zachary Holmes’ testimony was not

credible.

2. The State’s witness Jamie Thorpe’s gave inconsistent

testimony.

3. Michael Holmes’ testimony that Petitioner had provided

him with a 9mm handgun the day before the murder.

Petitioner argues Holmes’ testimony was self-serving and

designed to transfer blame for the shooting onto

Petitioner.

4. The State failed to present enough evidence that

Petitioner acted as a principle. Petitioner argues that

not a single witness could testify that he had conscious

intent to commit the crime.

5. The identification of Co-Defendant Tuttle was not

reliable.

6. The improper remarks by the Prosecutor in closing

argument likely contributed to the jury’s verdict.

7. The introduction of prejudicial evidence that confused

or misled the jury.

(Doc. #1 at 14-15). Respondent responds that it is unreasonable

to suggest that any more detailed or more artfully worded motion

or argument would have resulted in a different outcome.

In denying Petitioner’s Rule 3.850 motion, the Post-

Conviction Court held:

In the ninth allegation Defendant alleges that

counsel was ineffective for falling to file an

adequate motion for a new trial. Specifically,

Defendant alleges that counsel should have

pointed to the false and perjured testimony of

Zachary Holmes; Jamie Thorpe’s inconsistent

testimony and unreliable identification of

Tuttle; and Michael Holmes’ testimony about

the 9mm handgun. Based on these issues,

Defendant claims that the State failed to

prove that “Ragland acted as a principle

[sic]”. See Defendant’s motion p.33. However,

this allegation is conclusively refuted by the

record. See Court Exhibit G, March 30, 2012,

Transcript of Proceedings, attached hereto,

which concerns the hearing on the Motion for

New Trial. After hearing arguments of counsel,

the trial court weighed all the evidence and

concluded that a new trial was not warranted.

(Ex. 9, Vol. I at 660). The Second District Court of Appeal

affirmed per curium.

Petitioner speculates that the outcome of the motion for a

new trial would have been different had Trial Counsel argued as

proposed in Ground Nine. Speculative allegations in support of

claims of ineffective assistance of counsel are insufficient. See

Cox v. Sec'y, DOC & Fla. Attorney Gen., No. 2:13-CV-65-FTM-29CM,

2015 WL 7015426, at *10 (M.D. Fla. Nov. 12, 2015) (quoting Bradford

v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992)( Petitioner cannot

satisfy the second prong of Strickland with mere speculation and

conjecture).

The purpose of analyzing the reasonableness of counsel’s

representation under Strickland’s first prong is not to grade

counsel’s skill; rather, it is to determine whether the counsel’s

performance was constitutionally acceptable. “The test has nothing

to do with what the best lawyers would have done. Nor is the test

even what most good lawyers would have done. We ask only whether

some reasonable lawyer at the trial could have acted, in the

circumstances, as defense counsel acted at trial.” Crisp v. United

States, No. 2:07-CR-95-FTM-34SPC, 2014 WL 1285894, at *12 (M.D.

Fla. Mar. 31, 2014) (quoting Waters v. Thomas, 46 F.3d 1506, 1512

(11th Cir. 1995)).

In his motion for a new trial, Trial Counsel argued that the

verdict was contrary to the weight of the evidence because of the

unreliable testimony of Zach Holmes, and that the Court erred in

allowing the testimony of Detective Ellis regarding her

elimination of other suspects. Trial Counsel argued that

Detective Ellis relied on broad conclusions to eliminate other

suspects without testifying as to how she reached those

conclusions. (Ex. 1, Vol. VIII at 316). Based on the record before

the Court, Trial Counsel’s motion for a new trial was reasonable

given the evidence presented at trial. Petitioner failed to

establish either deficient performance or prejudice under

Strickland; therefore, Ground Nine is denied.

Grounds Ten and Eleven

In Ground Ten, Petitioner claims Trial Counsel rendered

ineffective assistance of counsel by failing to object that

conviction of the principle felon must precede or accompany that

of one charged as being accessory before the fact. In Ground

Eleven, Petitioner claims Trial Counsel rendered ineffective

assistance by failing to raise an inconsistent verdict objection

based on his conviction for second degree murder while his Co-

Defendant was convicted of manslaughter.

Respondent argues Grounds Ten and Eleven are unexhausted and

procedurally barred because they were not raised in the State Court

and the time to do so has expired. Petitioner does not dispute

that Grounds Ten and Eleven are unexhausted but argues they are

not procedurally barred based upon the Supreme Court’s holding in

Trevino v Thaler, 569 U.S. 413, 429 (2013). The Trevino Court

relied on the reasoning from Martinez v. Ryan, 566 U.S. 1, 17

(2012), which held that “a procedural default will not bar a

federal habeas court from hearing a substantial claim of

ineffective assistance at trial if, in the initial-review

collateral proceeding, there was no counsel or counsel in that

proceeding was ineffective.” 569 U.S. at 429. In such instances,

the prisoner “must also demonstrate that the underlying

ineffective-assistance-of-trial-counsel claim is a substantial

one, which is to say that the prisoner must demonstrate that the

claim has some merit.” Krum v. Sec’y, Fla. Dep’t of Corr., No.

2:13-CV-422-FTM-29MRM, 2016 WL 2610195, at *9 (M.D. Fla. May 6,

2016).

In Ground Ten, Petitioner argues that Trial Counsel rendered

ineffective assistance by failing to object to his conviction of

second-degree murder since conviction of a principle felon must

precede or accompany that of one charged as being accessory before

the fact. Petitioner’s argument fails. The common law rule

espoused by Petitioner was rendered obsolete in 1957 with the

enactment of Fla. Stat. § 776.011, (1957), later renumbered §

777.011. See Brown v. Florida, 672 So. 2d 861, 864 (Fla. 3d DCA

1996).

Petitioner’s Martinez argument in Ground Eleven also fails

because his Co-Defendant had not yet been tried and convicted, so

Trial Counsel could not have objected to an inconsistent verdict.

Petitioner was charged with second-degree murder. Second-degree

murder is the “[t]he unlawful killing of a human being, when

perpetrated by any act imminently dangerous to another and evincing

a depraved mind regardless of human life, although without any

premeditated design to effect the death of any particular

individual.” Fla. Stat. § 782.04(2). The record before the Court

shows that Petitioner was an active participant in the robbery

that led to the victim’s murder and supports Petitioner’s

conviction for second-degree murder.

Petitioner has not shown cause and prejudice, or a fundamental

miscarriage of justice to overcome the procedural default. No

exception, including Martinez, overcomes Petitioner’s procedural

default of Grounds Ten and Eleven. Consequently, Ground Ten and

Eleven will be dismissed as unexhausted and procedurally barred.

CERTIFICATE OF APPEALABILITY

Petitioner is not entitled to a certificate of appealability

on either petition. A prisoner seeking to appeal a district

court's final order denying his petition for writ of habeas corpus

has no absolute entitlement to appeal but must obtain a certificate

of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Harbison v.

Bell, 556 U.S. 180, 184 (2009). “A [COA] may issue . . . only if

the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a

showing, Petitioner “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional

claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282

(2004) or, that “the issues presented were adequate to deserve

encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.

322, 335-36 (2003)(citations omitted). Petitioner has not made

the requisite showing in these circumstances. Finally, because

Petitioner is not entitled to a certificate of appealability, he

is not entitled to appeal in forma pauperis.

Accordingly, it is hereby

ORDERED:

1. Petitioner Terry Ragland’s Petition for a Writ of Habeas

Corpus under 28 U.S.C. § 2254 (Doc. #1) is DENIED.

2. The Clerk of Court shall enter judgment accordingly,

terminate any pending motions, and close the file.

DONE and ORDERED at Fort Myers, Florida, this 23rd day

of September 2019.

—_— □ 2, _ f

JGHH E. STEELE

5 IGOR UNITED STATES DISTRICT JUDGE

SA: FTMP-2

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