# Ragland v. Florida Attorney General (Lee County)

> District Court, M.D. Florida · September 23, 2019

URL: https://www.frixlaw.com/law-library/cases/10103767

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** September 23, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10103767

## How later opinions describe it (automated extraction)

- 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.”
- 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”

## Opinion text

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
Copies:
All Parties of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10103767. Public record. Not legal advice.