noting that “[w]here joint possession of the premises is shown, the knowledge element may be met by contraband in plain view in the common areas of the premises.”
How later courts described this case
- noting that “[w]here joint possession of the premises is shown, the knowledge element may be met by contraband in plain view in the common areas of the premises.”
- stating the language in § 2254(d)(1)’s “requires an examination of the state-court decision at the time it was made”
- noting that “the failure to include an essential element of a crime does not necessarily render an indictment fundamentally defective when the indictment references a specific section of the criminal code which sufficiently details all the elements of the offense.”
- holding counsel cannot be ineffective for failing to raise a meritless argument
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LOUIS THORNTON,
Petitioner,
v. Case No. 3:17-cv-64-J-34JBT
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Louis Thornton, an inmate of the Florida penal system, initiated this
action on December 16, 2016,1 by filing a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254 (Petition; Doc. 1). In the Petition, Thornton challenges a 2011 state court
(Duval County, Florida) judgment of conviction for aggravated battery and possession of
a firearm by a convicted felon. Thornton raises eight grounds for relief. See Petition at 7-
23.2 Respondents have submitted a memorandum in opposition to the Petition. See
Answer to Petition for Writ of Habeas Corpus (Response; Doc. 28) with exhibits (Resp.
Ex.). Thornton did not file a reply brief.3 This case is ripe for review.
1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
2 For purposes of reference, the Court will cite the page number assigned by the
Court’s electronic docketing system.
3 Thornton filed a motion for extension of time to file a reply (Doc. 30), which the
Court granted (Doc. 31), but he ultimately failed to file a reply.
II. Relevant Procedural History
On February 24, 2010, the State of Florida (State) charged Thornton by way of
Information with aggravated battery with a deadly weapon (count one), aggravated
assault (count two), and possession of a firearm by a convicted felon (count three). Resp.
Ex. A at 13-14. Thornton proceeded to a jury trial, with the jury first deciding Thornton’s
guilt or innocence as to counts one and two and then returning to deliberate over count
three. At the conclusion of the trial, the jury found him guilty as to counts one and three
but not guilty as to count two. Id. at 115-18. As to count one, the jury found that Thornton
used a deadly weapon during the commission of the offense. Id. at 115. As to count three,
however, the jury found that although Thornton legally possessed a firearm, he did not
actually possess a firearm during the commission of the offense. Id. at 118. On May 3,
2011, the circuit court adjudicated Thornton to be a habitual felony offender (HFO) and
sentenced him to a term of incarceration of sixteen years in prison as to both counts one
and three, with each count running concurrently. Id. at 139-45.
Thornton appealed his conviction and sentence to Florida’s First District Court of
Appeal (First DCA). Id. at 150-51. On December 5, 2011, Thornton, with the assistance
of counsel, filed a motion to correct sentencing error pursuant to Florida Rule of Criminal
Procedure 3.800(b)(2), in which he challenged his adjudication as a HFO. Resp. Ex. D at
1-15. The circuit court failed to rule on the motion. Resp. Ex. E. Thornton then filed an
initial brief with the First DCA in which he argued that (1) the circuit court erred in failing
to instruct the jury on the standard for constructive possession of a firearm in jointly
occupied premises and (2) his HFO adjudication was illegal. Resp. Ex. F. The State filed
an answer brief. Resp. Ex. G. On January 22, 2013, the First DCA per curiam affirmed
Thornton’s conviction and sentence without a written opinion, Resp. Ex. H, and issued
the Mandate on February 7, 2013. Resp. Ex. I.
On May 7, 2013, Thornton filed a pro se motion for postconviction relief pursuant
to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motion). Resp. Ex. J at 1-18. In
the Rule 3.850 Motion, Thornton alleged his counsel was ineffective for failing to: (1)
present evidence; (2) investigate a potential witness; (3) object to a jury instruction; (4)
impeach the victim’s testimony; (5) impeach a state witness; (6) object to his adjudication
as an HFO; and (7) request a jury instruction. Id. at 2-17. On September 14, 2015, the
circuit court denied the motion. Id. at 31-46. On January 29, 2016, the First DCA per
curiam affirmed the denial without a written opinion, Resp. Ex. M, and issued the Mandate
on February 24, 2016. Resp. Ex. N.
On February 22, 2016, Thornton petitioned the Florida Supreme Court to invoke
its discretionary jurisdiction to review the denial of his Rule 3.850 Motion. Resp. Ex. O.
The Florida Supreme Court dismissed the petition for lack of jurisdiction. Resp. Ex. P.
Thornton again attempted to get the Florida Supreme Court to review the denial of his
Rule 3.850 Motion by filing a petition for writ of habeas corpus in that court on April 1,
2016. Resp. Ex. Q. On May 19, 2016, the Florida Supreme Court entered an order treating
the petition for writ of habeas corpus as a petition for writ of mandamus and transferring
it to the First DCA. Resp. Ex. R. On June 8, 2016, the First DCA per curiam denied the
petition without a written opinion. Resp. Ex. S.
On February 12, 2016, Thornton filed a petition for writ of habeas corpus with the
circuit court, in which he argued the evidence presented at his trial did not support his
convictions. Resp. Ex. T. At the time Respondents filed their Response the circuit court
had yet to rule on the petition. Resp. Ex. U.
III. One-Year Limitations Period
This proceeding was timely filed within the one-year limitations period. See 28
U.S.C. § 2244(d).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner to establish the
need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d
1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an applicant to prove
the petition’s factual allegations, which, if true, would entitle the applicant to federal
habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t
of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017).
“It follows that if the record refutes the applicant’s factual allegations or otherwise
precludes habeas relief, a district court is not required to hold an evidentiary hearing.”
Schriro, 550 U.S. at 474. The pertinent facts of this case are fully developed in the record
before the Court. Because the Court can “adequately assess [Thornton’s] claim[s] without
further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an
evidentiary hearing will not be conducted.
V. Governing Legal Principles
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a
state prisoner’s federal petition for habeas corpus. See Ledford v. Warden, Ga.
Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137
S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure that federal habeas relief
functions as a guard against extreme malfunctions in the state criminal justice systems,
and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38
(2011) (quotation marks omitted)). As such, federal habeas review of final state court
decisions is “‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v. Humphrey,
662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).
The first task of the federal habeas court is to identify the last state court decision,
if any, that adjudicated the claim on the merits. See Marshall v. Sec’y, Fla. Dep’t of Corr.,
828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue a written opinion
explaining its rationale in order for the state court’s decision to qualify as an adjudication
on the merits. See Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s
adjudication on the merits is unaccompanied by an explanation, the United States
Supreme Court has instructed:
[T]he federal court should “look through” the unexplained
decision to the last related state-court decision that does
provide a relevant rationale. It should then presume that the
unexplained decision adopted the same reasoning.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be rebutted by
showing that the higher state court’s adjudication most likely relied on different grounds
than the lower state court’s reasoned decision, such as persuasive alternative grounds
that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at
1192, 1196.
If the claim was “adjudicated on the merits” in state court, § 2254(d) bars relitigation
of the claim unless the state court’s decision (1) “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States;” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited
scope of federal review pursuant to § 2254 as follows:
First, § 2254(d)(1) provides for federal review for claims of
state courts’ erroneous legal conclusions. As explained by the
Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct.
1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two
distinct clauses: a “contrary to” clause and an “unreasonable
application” clause. The “contrary to” clause allows for relief
only “if the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the
state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.” Id. at
413, 120 S. Ct. at 1523 (plurality opinion). The “unreasonable
application” clause allows for relief only “if the state court
identifies the correct governing legal principle from [the
Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id.
Second, § 2254(d)(2) provides for federal review for claims of
state courts’ erroneous factual determinations. Section
2254(d)(2) allows federal courts to grant relief only if the state
court’s denial of the petitioner’s claim “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)(2). The Supreme Court has not yet defined §
2254(d)(2)’s “precise relationship” to § 2254(e)(1), which
imposes a burden on the petitioner to rebut the state court’s
factual findings “by clear and convincing evidence.” See Burt
v. Titlow, 571 U.S. ---, ---, 134 S. Ct. 10, 15, 187 L.Ed.2d 348
(2013); accord Brumfield v. Cain, 576 U.S. ---, ---, 135 S. Ct.
2269, 2282, 192 L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court factual determination is
not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first
instance.’”[4] Titlow, 571 U.S. at ---, 134 S. Ct. at 15 (quoting
Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849, 175
L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S. Ct. 2298
(2017). Also, deferential review under § 2254(d) generally is limited to the record that was
before the state court that adjudicated the claim on the merits. See Cullen v. Pinholster,
563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1)’s “requires an examination
of the state-court decision at the time it was made”).
Thus, “AEDPA erects a formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16
(2013). “Federal courts may grant habeas relief only when a state court blundered in a
manner so ‘well understood and comprehended in existing law’ and ‘was so lacking in
justification’ that ‘there is no possibility fairminded jurists could disagree.’” Tharpe, 834
F.3d at 1338 (quoting Richter, 562 U.S. at 102-03). This standard is “meant to be” a
“difficult” one to meet. Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s
claims were adjudicated on the merits in the state courts, they must be evaluated under
28 U.S.C. § 2254(d).
B. Exhaustion/Procedural Default
There are prerequisites to federal habeas review. Before bringing a § 2254 habeas
action in federal court, a petitioner must exhaust all state court remedies that are available
for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To exhaust state
remedies, the petitioner must “fairly present[]” every issue raised in his federal petition to
4 The Eleventh Circuit has described the interaction between § 2254(d)(2) and §
2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th
Cir. 2016), cert. denied, 137 S. Ct. 1103 (2017).
the state’s highest court, either on direct appeal or on collateral review. Castille v.
Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust a claim,
“state prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate
review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C. §
2254(b)(1), thereby giving the State the “‘“opportunity to pass
upon and correct” alleged violations of its prisoners’ federal
rights.’” Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887,
130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard v.
Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438
(1971)). To provide the State with the necessary “opportunity,”
the prisoner must “fairly present” his claim in each appropriate
state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the federal
nature of the claim. Duncan, supra, at 365-366, 115 S. Ct.
887; O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct.
1728, 144 L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner’s failure to properly exhaust available state remedies results in a
procedural default which raises a potential bar to federal habeas review. The United
States Supreme Court has explained the doctrine of procedural default as follows:
Federal habeas courts reviewing the constitutionality of a
state prisoner’s conviction and sentence are guided by rules
designed to ensure that state-court judgments are accorded
the finality and respect necessary to preserve the integrity of
legal proceedings within our system of federalism. These
rules include the doctrine of procedural default, under which a
federal court will not review the merits of claims, including
constitutional claims, that a state court declined to hear
because the prisoner failed to abide by a state procedural rule.
See, e.g., Coleman,[5] supra, at 747–748, 111 S. Ct. 2546;
Sykes,[6] supra, at 84–85, 97 S. Ct. 2497. A state court’s
invocation of a procedural rule to deny a prisoner’s claims
precludes federal review of the claims if, among other
requisites, the state procedural rule is a nonfederal ground
adequate to support the judgment and the rule is firmly
established and consistently followed. See, e.g., Walker v.
Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179
L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct.
612, 617–618, 175 L.Ed.2d 417 (2009). The doctrine barring
procedurally defaulted claims from being heard is not without
exceptions. A prisoner may obtain federal review of a
defaulted claim by showing cause for the default and
prejudice from a violation of federal law. See Coleman, 501
U.S., at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may be
excused under certain circumstances. Notwithstanding that a claim has been procedurally
defaulted, a federal court may still consider the claim if a state habeas petitioner can show
either (1) cause for and actual prejudice from the default; or (2) a fundamental miscarriage
of justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). In order for a petitioner to
establish cause,
the procedural default “must result from some objective factor
external to the defense that prevented [him] from raising the
claim and which cannot be fairly attributable to his own
conduct.” McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.
1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[7]
Under the prejudice prong, [a petitioner] must show that “the
errors at trial actually and substantially disadvantaged his
defense so that he was denied fundamental fairness.” Id. at
1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
5 Coleman v. Thompson, 501 U.S. 722 (1991).
6 Wainwright v. Sykes, 433 U.S. 72 (1977).
7 Murray v. Carrier, 477 U.S. 478 (1986).
In the absence of a showing of cause and prejudice, a petitioner may receive
consideration on the merits of a procedurally defaulted claim if the petitioner can establish
that a fundamental miscarriage of justice, the continued incarceration of one who is
actually innocent, otherwise would result. The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive consideration
on the merits of his procedurally defaulted claim. “[I]n an
extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in
the absence of a showing of cause for the procedural default.”
Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This exception
is exceedingly narrow in scope,” however, and requires proof
of actual innocence, not just legal innocence. Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).
Ward, 592 F.3d at 1157. “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.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be credible,’ a claim of actual
innocence must be based on reliable evidence not presented at trial.” Calderon v.
Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity
of such evidence, in most cases, allegations of actual innocence are ultimately summarily
rejected. Schlup, 513 U.S. at 324.
C. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants the effective assistance of
counsel. That right is denied when a defense attorney’s performance falls below an
objective standard of reasonableness and thereby prejudices the defense.” Yarborough
v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521
(2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)).
To establish deficient performance, a person challenging a
conviction must show that “counsel’s representation fell below
an objective standard of reasonableness.” [Strickland,] 466
U.S. at 688, 104 S. Ct. 2052. A court considering a claim of
ineffective assistance must apply a “strong presumption” that
counsel’s representation was within the “wide range” of
reasonable professional assistance. Id., at 689, 104 S. Ct.
2052. The challenger’s burden is to show “that counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id., at 687, 104 S. Ct. 2052.
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id., at 694, 104 S. Ct.
2052. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id., at
693, 104 S. Ct. 2052. Counsel’s errors must be “so serious as
to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id., at 687, 104 S. Ct. 2052.
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of any iron-
clad rule requiring a court to tackle one prong of the Strickland test before the other.”
Ward, 592 F.3d at 1163. Since both prongs of the two-part Strickland test must be
satisfied to show a Sixth Amendment violation, “a court need not address the performance
prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id. (citing
Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at
697.
A state court’s adjudication of an ineffectiveness claim is accorded great
deference.
“[T]he standard for judging counsel’s representation is a most
deferential one.” Richter, - U.S. at -, 131 S. Ct. at 788. But
“[e]stablishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is
doubly so.” Id. (citations and quotation marks omitted). “The
question is not whether a federal court believes the state
court’s determination under the Strickland standard was
incorrect but whether that determination was unreasonable -
a substantially higher threshold.” Knowles v. Mirzayance, 556
U.S. 111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)
(quotation marks omitted). If there is “any reasonable
argument that counsel satisfied Strickland’s deferential
standard,” then a federal court may not disturb a state-court
decision denying the claim. Richter, - U.S. at -, 131 S. Ct. at
788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v. Mirzayance,
556 U.S. 111, 123 (2009). In other words, “[i]n addition to the deference to counsel’s
performance mandated by Strickland, the AEDPA adds another layer of deference--this
one to a state court’s decision--when we are considering whether to grant federal habeas
relief from a state court’s decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.
2004). As such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).
VI. Findings of Fact and Conclusions of Law
A. Ground One
Thornton alleges that the circuit court fundamentally erred when it failed to instruct
the jury regarding constructive possession of a firearm in a jointly occupied premises.
Petition at 7-8. According to Thornton, his possession of the firearm was disputed at trial
and the evidence established that the premises in which the firearm was discovered was
jointly occupied between he and Nikki Freeman. Id. at 7. However, the circuit court gave
an incomplete jury instruction because it failed to explain what the State was required to
prove when joint occupancy was an issue. Id. Thornton avers that the State did not
present independent proof establishing he knew of the firearm’s presence or that he had
the ability to control it. Id. at 8.
Respondents contend this claim is not cognizable in federal habeas proceedings
because Thornton did not raise a federal constitutional issue; instead, this issue is a
matter solely of state law. Response at 21-23. “[T]he fact that [an] instruction was
allegedly incorrect under state law is not a basis for habeas relief.” Estelle v. McGuire,
502 U.S. 62, 71-72 (1991). The Eleventh Circuit has “held that errors in state jury
instructions are federal constitutional issues only where they render the entire trial
fundamentally unfair.” Erickson v. Sec’y, Dept. of Corr., 243 F. App’x 524, 528 (11th Cir.
2007) (citing Jones v. Dugger, 888 F.2d 1340, 1343 (11th Cir. 1989)); see also Jamerson
v. Sec’y for Dep’t of Corr., 410 F.3d 682, 688 (11th Cir. 2005) (quoting Estelle, 502 U.S.
at 72) (“[u]nlike state appellate courts, federal courts on habeas review are constrained
to determine only whether the challenged instruction, viewed in the context of both the
entire charge and the trial record, ‘so infected the entire trial that the resulting conviction
violate[d] due process.’”).
Thornton first raised this issue in state court on direct appeal as a claim of
fundamental error. Resp. Ex. F at 12-17. He did not raise any federal due process issue
nor did he otherwise rely on federal constitutional law. Id. (citing Moton v. State, 8 So. 3d
483 (Fla. 1st DCA 2009); Wagner v. State, 950 So. 2d 511 (Fla. 2d DCA 2007); Mitchell
v. State, 958 So. 2d 496 (Fla. 4th DCA 2007); and Brickley v. State, 12 So. 3d 311 (Fla.
4th DCA 2009)). Likewise, here, Thornton does not argue that his due process rights were
violated, nor does he allege any federal constitutional violation. Therefore, Thornton’s
claim is entirely a matter of state law and is not cognizable in federal habeas proceedings.
See Estelle, 502 U.S. at 71-72; Erickson, 243 F. App’x at 528.
Even if Thornton had framed this issue as a federal due process issue, he would
not be entitled to relief. Under Florida law, “[w]hen the ‘premises where contraband is
found is in joint, rather than exclusive, possession of a defendant . . . knowledge of the
contraband's presence and the ability to control it will not be inferred from the ownership
but must be established by independent proof.’” Kemp v. State, 166 So. 3d 213, 217 (Fla.
1st DCA 2015) (quoting Julian v. State, 545 So. 2d 347, 348 (Fla. 1st DCA 1989)). Here,
the record reflects that the victim, Kenneth Benn, and his girlfriend, Nicole Lester, went
to Thornton and his girlfriend, Nikki Freeman’s, apartment to confront Freeman about her
failure to pay back a $1,000 loan Lester had given to her a month prior to the incident.
Resp. Ex. B at 28-30, 131-34. According to Benn and Lester, Thornton opened the door
and either immediately or a short while thereafter pointed a gun at Benn’s head. Id. at 31-
32, 134, 163-67. Thornton eventually exchanged the gun for a knife, which Freeman had
given him, and cut Benn on the head, which resulted in a wound requiring eight staples
to close. Id. at 33-34, 121-22, 135. Notably, Lester testified at trial that Freeman had
recently moved into that apartment about a week and half before the incident and
Thornton was always there. Id. 140-41. According to Lester, it was evident to her that
Thornton lived there as well. Id. When police arrived, Freeman told Officer Lisa Coyle that
there was a firearm in the closet of the master bedroom inside a box. Id. at 56, 58. When
police searched the residence, Officer William Whittlesey found an unloaded .32 caliber
semiautomatic pistol. Id. at 80-81. When asked where he recovered the pistol, Whittlesey
testified that “[i]t was on the side, kind of like the floor on the side of the bed.” Id. at 81.
The prosecutor asked Whittlesey if he “also move[d] the bed a little bit to find the firearm?”,
and he answered “[y]es, we did” while identifying the location in a photograph. Id. 81-82.
Whittlesey also found an empty magazine on a shelf in the closet. Id. at 82-83.
The jury was first tasked with determining Thornton’s guilt as to counts one and
two. Id. at 342-43. After the jury returned its verdict of guilty as to count one but not guilty
as to count two, the circuit court informed the jury that it was to determine Thornton’s guilt
as to count three. Id. The parties did not introduce additional evidence or make further
arguments. Id. at 343. Instead, the circuit court read instructions to the jury concerning
the law as it applied to count three. Id. at 343-48. Those instructions read, in part, as
follows:
To prove the crime of Possession of a Firearm by a
Convicted Felon, the State must prove the following two
elements beyond a reasonable doubt:
1. LOUIS CHRISTOPHER THORNTON had been
previously convicted of a felony.
2. After the conviction, LOUIS CHRISTOPHER
THORNTON knowingly had in his care, custody, possession,
or control, a firearm.
. . . .
To “posses” means to have personal charge of or
exercise the right of ownership, management, or control over
the thing possessed.
Possession may be actual or constructive.
To “actually possess” a firearm means that the
defendant
(a) carried a firearm on his person; or
(b) had a firearm within immediate physical reach
with ready access with the intent to use the firearm during the
commission of the crime; or
(c) the firearm is so close as to be within ready
reach and is under the control of the person.
Mere proximity to an object is not sufficient to establish
control over the object when the object is not in a place over
which the person has control.
Constructive possession means the object is in a place
over which defendant has control, or in which defendant has
concealed it.
If an object is in a place over which defendant does not
have control, the State establishes constructive possession if
it proves that defendant (1) has knowledge that the object was
within defendant’s presence, and (2) has control over the
object.
If a person has exclusive possession of an object,
knowledge of its presence may be inferred or assumed.
If a person does not have exclusive possession of an
object, knowledge of its presence may not be inferred or
assumed.
Resp. Ex. A at 113-14 (emphasis added). This last portion of the quoted instruction, while
not directly addressing joint occupancy, does, however, task the jury with determining
Thornton’s knowledge of the firearm by means other than inference or assumption if they
determine he did not have exclusive possession. Notably, the standard jury instructions
did not include a provision regarding joint occupancy. Fla. Std. Jury Instr. (Crim.) 10.15.
The Court notes that Thornton relies heavily on the fact that the jury ultimately
determined he was innocent as to count two and did not actually possess a firearm as to
count three. These conclusions, Thornton argues, demonstrate that he did not have
exclusive possession, thus, requiring the jury to determine the knowledge element by
means other than inference or assumption. However, Thornton’s reliance on the verdicts
to demonstrate fundamental error is misplaced. The verdict as to count two included a
special interrogatory where the jury could choose if Thornton actually possessed a firearm
or did not, and also included an interrogatory for the lesser-included offense of assault.
Resp. Ex. A at 116. The jury ultimately decided Thornton did not even commit an assault.
Thornton asserts that this demonstrates that the jury did not believe Benn and Lester’s
testimony about Thornton possessing a gun. However, this is not necessarily the only
conclusion the jury could have reached, as they could have determined the State failed
to prove any one single element of assault, without ever getting to the firearm element.
For example, the jury could have concluded Thornton’s use of a firearm at his own door
was not an intentional or unlawful threat to do violence against Benn but self-defense.
Regardless of the jury’s actual thinking, the verdict as to count two did not negate Benn
and Lester’s trial testimony as evidence for the jury to consider as to count three.
Likewise, the not guilty verdict on count two does not negate the evidence of Thornton
living in the home where police recovered the firearm. Therefore, Thornton’s reliance on
the verdict for count two does not support his argument that no evidence was presented
to support a finding of constructive possession. Thus, the Court does not find any due
process violation occurred by the circuit court’s failure to read the instructions Thornton
advances in his Petition.
Moreover, even if the circuit court had instructed the jury as Thornton alleges it
should have, the record does not support a conclusion that the outcome of the trial would
have been different and, therefore, no due process violation occurred. The evidence
reflects that Thornton lived with his girlfriend, Freeman, and that a firearm was found on
the floor on the side of the bed in their shared bedroom. Accordingly, there was evidence
to infer Thornton had knowledge of the firearm. See Mitchell v. State, 958 So. 2d 496,
500 (Fla. 4th DCA 2007) (noting that “[w]here joint possession of the premises is shown,
the knowledge element may be met by contraband in plain view in the common areas of
the premises.”). The firearm was found in a place over which Thornton had control, their
shared bed in their shared bedroom. As to control, a DNA analysis of the firearm
determined that a mixture was found on the firearm of at least two individuals including at
least one female contributor and one male contributor. Resp. Ex. B at 213-15. Due to the
limited DNA on the firearm, the analyst could neither include nor exclude Thornton as a
contributor. Id. Notably, there was no evidence that anyone other than Freeman and
Thornton handled the firearm. Although Thornton could not be excluded, the jury was free
to infer from this evidence that Thornton handled the weapon because the gun was found
in Thornton’s shared bedroom with Freeman, which would support an inference that
Freeman was the female contributor and he was the male contributor. The Court notes
that “the dominion and control element may be met where the defendant has the ability
[to] exercise control over the premises where the contraband is found.” Duncan v. State,
986 So. 2d 653, 655 (Fla. 4th DCA 2008). The evidence presented at trial showed that
Thornton had the ability to exercise control over the premises where he was the one that
opened the door for Benn and Lester. Resp. Ex. B at 31, 133-34. As such, even if this
instruction were read, a jury could properly have concluded he constructively possessed
the firearm. When viewed in the context of both the entire charge and the trial record, it
cannot be said this instruction infected the entire trial to the point that the resulting
conviction violated due process. See Jamerson, 410 F.3d at 688. For the foregoing
reasons, the relief Thornton seeks in Ground One is due to be denied.
B. Ground Two
In Ground Two, Thornton avers that his trial counsel was ineffective for failing to
present evidence that Benn cut himself when he broke the window in Thornton’s car.
Petition at 10-11. According to Thornton, Benn broke the window of the car and cut
himself but lied to police about it; instead saying Thornton cut him so he could avoid
criminal prosecution for damaging the car. Id. Thornton contends that his counsel should
have introduced a redacted video-recorded statement in which Thornton told police Benn
cut himself by breaking the window. Id. He further asserts that counsel should have cross-
examined Benn and Lester on this issue and, although counsel introduced a photo of a
car with a broken window, counsel should have introduced evidence that the car belonged
to Thornton. Id.
Thornton raised a similar claim as ground one of his Rule 3.850 Motion. Resp. Ex.
J at 2-5. The circuit court denied the claim, explaining:
This Court finds the record refutes Defendant’s
contentions. First, counsel argued during opening arguments
that the victims committed property damage against
Defendant. Second, and most importantly, the record shows
evidence was presented regarding the damaged vehicle and
that Mr. Benn could have caused the damage. Mr. Benn
testified during trial, during both direct and cross-examination,
that Defendant accused him of busting the window out of
Defendant’s vehicle. Counsel elicited from Officer Carl Kahre
of the Jacksonville Sheriff’s Office (“JSO”), a responding
officer, that when he arrived at the crime scene, he noticed a
vehicle with a broken window. Counsel further elicited from
Officer Dwayne Gray of JSO that, when he arrived at the crime
scene, he saw a damaged vehicle located in close proximity
to the crime scene. During cross-examination of Officer Wes
Stevenson of JSO, counsel asked the officer if the victim could
have busted the window of Defendant’s vehicle, although the
victim was not arrested for it; the Officer indicated the victim
could have busted the window out.
Assuming arguendo counsel should have presented
further evidence to advance the theory suggested by
Defendant, that Mr. Benn cut his own forehead and head while
busting the window out of Defendant’s vehicle, this Court finds
Defendant has failed to demonstrate such evidence would
have changed the outcome of his trial. Indeed, the record
shows the State presented overwhelming evidence against
Defendant showing he cut Mr. Benn during an argument over
$1,000. Further, Officer Gray testified during trial he
responded to the crime scene and made contact with the
victim, Mr. Benn. Officer Gray described the stab wounds the
victim suffered and opined that, in his training, knowledge,
and experience as a police officer, the injuries were consistent
with having been caused by a knife. Officer Stevenson
testified he was on crime walk patrol in the apartment complex
where the incident occurred when the police radio called for
assistance about a stabbing at the complex. Officer
Stevenson testified about the vehicle with the rear window
busted out, and he opined the evidence at the scene,
including the victim’s injuries, did not indicate the victim had
cut his head on the rear window of the vehicle.
Dr. Deborah Swartz testified she treated Mr. Benn for
his scalp laceration at the Emergency Room at Baptist
Hospital. She noted Mr. Benn told his nurse the injury was
caused by a knife; Dr. Swartz opined the injury was a cut from
some type of sharp object, and it was likely not caused by a
minor car accident. Finally, Ms. Shana Mills, a forensic
biologist and DNA analyst, tested the swabs taken from the
blade of the knife recovered from the crime scene; she
obtained a single source profile matching the DNA profile of
Mr. Benn. Further, Ms. Mills testified, as to the handle of the
knife, she obtained alleles that are in common with
Defendant’s DNA. Therefore, this Court finds counsel was not
deficient for failing to set forth the evidence and/or theory now
advanced by Defendant, because the evidence contradicts it
and it would not have prevailed. Because Defendant has
failed to meet his burdens under Strickland, Ground One is
denied.
Id. at 33-35 (record citations omitted). The First DCA per curiam affirmed the denial of
this claim without a written opinion. Resp. Exs. M; N.
To the extent that the First DCA decided the claim on the merits,8 the Court will
address the claim in accordance with the deferential standard for federal court review of
state court adjudications. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings. Thus, Thornton is not entitled to
relief on the basis of this claim.
Even if the state appellate court’s adjudication of the claim is not entitled to
deference, the claim in Ground Two is meritless because he cannot demonstrate
prejudice. As noted by the circuit court, a DNA analysis of the knife Benn and Lester
accused Thornton of using demonstrated that Benn’s DNA was on the blade of the knife
and, although the analyst could not include or exclude Thornton as a contributor to the
DNA profile on the handle of the knife, she noted that there were several alleles in
common with Thornton’s DNA. Resp. Ex. B at 211, 213-15. In light of the presence of
Benn’s DNA on the blade of the knife, there is no reasonable probability the outcome of
the trial would have been different had counsel introduced Thornton’s self-serving
8 Throughout this order, in looking through the appellate court’s per curiam
affirmance to the circuit court’s “relevant rationale,” the Court presumes that the appellate
court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.
statement, cross-examined the witnesses more thoroughly on this issue, or presented
evidence that Thornton owned the car with the broken window. Based on the foregoing,
relief on the claim in Ground Two is due to be denied.
C. Ground Three
As Ground Three, Thornton asserts that his trial counsel was ineffective for failing
to call his girlfriend, Freeman, as a witness. Petition at 14. Thornton asserts that had
counsel called Freeman, she would have testified that she observed Benn break the
window of Thornton’s car with the knife officers found in the trashcan of Thornton’s
apartment, that Benn dropped the knife and fled after breaking the window, and that
Freeman picked up the knife and placed it in her trashcan for safety reasons. Id.
Thornton raised a substantially similar claim in his Rule 3.850 Motion. Resp. Ex. J
at 5-6. In denying this claim, the circuit court wrote:
Initially, this Court notes Ms. Freeman could not testify
she was present with Defendant while the incident occurred,
but that Defendant also had an alibi to the offenses. These
two arguments are inherently inconsistent with one another
and Defendant may not prevail on both of them. Assuming
arguendo Defendant seeks to argue Ms. Freeman would have
offered him a defense that he did not commit the offenses but
was present at the scene, this Court finds the record refutes
assertions that counsel was ineffective. The record shows
counsel was fully aware of Ms. Freeman and the evidence she
could provide at trial. The State’s Discovery Exhibit, provided
to counsel, listed Ms. Freeman as a Category A witness.
Counsel’s own Disclosure to Prosecution listed Ms. Freeman
as a potential witness. Counsel’s two Motions in Limine
sought to exclude incriminating evidence against Defendant
which Ms. Freeman provided to law enforcement. Counsel’s
First Motion in Limine sought to exclude incriminating
evidence against Defendant which Ms. Freeman provided to
law enforcement. Counsel’s First Motion in Limine explicitly
stated counsel would not be presenting Ms. Freeman as a
witness during trial. During trial, the judge discussed the
redaction of statements from a taped interview, and how Ms.
Freeman “the girlfriend, who never was going to testify” would
have provided impeachment testimony if she testified.
As such, the record shows counsel had investigated
Ms. Freeman, reviewed the evidence she could provide,
sought to exclude her statements, and ultimately determined
to not use her as a witness at trial. Accordingly, this Court
finds Defendant has failed to establish counsel rendered
deficient performance as alleged by Defendant. Ground Two
is denied.
Id. at 35-36. (record citations omitted). The First DCA per curiam affirmed the denial of
this claim without a written opinion. Resp. Exs. M; N.
To the extent that the First DCA decided the claim on the merits, the Court will
address the claim in accordance with the deferential standard for federal court review of
state court adjudications. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings. Thus, Thornton is not entitled to
relief on the basis of this claim.
Nevertheless, even if the First DCA’s adjudication of this claim is not entitled to
deference, the claim in Ground Three is without merit. Counsel’s filing of a motion in limine
to prevent the State from introducing prejudicial comments Freeman made to police at
the time of the investigation demonstrates that counsel investigated Freeman as a
witness. Resp. Ex. A at 86-87. Notably, the circuit court commented that Freeman’s
statement in the recorded video would have been impeachment. Resp. Ex. B at 243. Even
assuming Freeman testified as Thornton claims she would, it would have opened the door
to these prejudicial comments. Accordingly, counsel’s decision not to call her as a witness
was not deficient. Moreover, Thornton claims Freeman would have testified that Benn
broke the window, cut himself on the shards of glass, and then fled. However, three
officers dispatched to the scene testified that Benn was present at the scene bleeding. Id.
at 55, 61-62, 99-100. Therefore, the record refutes any assertion that Benn fled the scene
after breaking the window. Notably, one of the responding officers who took photos of the
victim’s injury testified that based on his training and experience Benn’s injury was
consistent with a knife wound. Id. at 99-103. Likewise, the doctor who treated Benn’s
injury testified that Benn’s wound was not similar to car accident wounds where glass
shatters and cuts someone, similar to what would have occurred under Thornton’s theory
of the facts. Id. at 122-23. Based on this evidence that is inconsistent with facts Thornton
asserts Freeman would have testified to, the Court finds there is no reasonable probability
the outcome of the trial would have been different had counsel called Freeman as a
witness. As Thornton has failed to demonstrate deficient performance or prejudice, relief
on his claim in Ground Three is due to be denied.
D. Ground Four
Thornton argues that his trial counsel was ineffective for failing to object to the jury
instructions read for count three. Petition at 16-17. Specifically, he contends that the State
only charged him with actual possession of a firearm by a convicted felon and, therefore,
the jury should not have been instructed on constructive possession. Id. He contends that
the jury determined he did not actually possess a firearm as to count three, and thus,
maintains that he was convicted of a uncharged crime. Id.
Thornton raised a similar claim in his Rule 3.850 Motion. Resp. Ex. J at 7-9. The
circuit court denied the claim, stating:
The charging information indicates the State charged
Defendant with Possession of a Firearm By a Convicted
Felon, in violation of section 790.23(1)(a), Florida Statutes.
Said statute relevantly reads:
(1) It is unlawful for any person to own or to
have in his or her care, custody, possession,
or control any firearm, ammunition, or electric
weapon or device, or to carry a concealed
weapon, including a tear gas gun or chemical
weapon or device, if that person has been:
(a) Convicted of a felony in the courts of this
state.
§ 790.23(1)(a), Fla. Stat. (2009) (emphasis added). As such,
this Court finds the charging information did not limit
Defendant’s possession of the firearm to only actual
possession.
Initially, this Court notes Defendant’s Arrest and
Booking Report indicates he resided at the apartment where
the incident occurred. The record further shows the jury
received instruction on “constructive possession” as well as
“actual possession.” With its verdict, the jury found Defendant
constructively possessed the firearm. Indeed, upon review,
this Court finds the instructions the jury received were the
standard jury instructions for Possession of a Firearm By a
Convicted Felon. [S]ee Fla. Std. Jury Instr. (Crim.) 10.15
(2010). Counsel was not ineffective for failing to object to
standard jury instructions. See Rodriguez v. State, 919 So. 2d
1252, 1272 (Fla. 2005) (quoting Thompson v. State, 759 So.
2d 650, 665 (Fla. 2000)) (holding “‘trial counsel’s failure to
object to standard jury instructions that have not been
invalidated by this Court does not render counsel’s
performance deficient’”). Moreover, the parties and the trial
judge discussed this matter at length during the charge
conference as to Count Three. In light of the record before it,
this Court finds counsel cannot be deemed ineffective. This
Court also adopts it reasoning infra denying Ground Seven.
Accordingly, Ground Three is denied.
Id. at 36-37. (record citations omitted). The First DCA per curiam affirmed the denial of
this claim without a written opinion. Resp. Exs. M; N.
To the extent that the First DCA decided the claim on the merits, the Court will
address the claim in accordance with the deferential standard for federal court review of
state court adjudications. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings. Thus, Thornton is not entitled to
relief on the basis of this claim.
Nevertheless, even if the state appellate court’s adjudication of this claim is not
entitled to deference, the claim here is meritless. Here, in count three of the Information,
the State charged Thornton as follows:
LOUIS CHRISTOPHER THORNTON on January 19,
2010, in the County of Duval and the State of Florida, did
actually possess a firearm, to-wit: firearm, having been
convicted of a felony in the courts of the State of Florida, to-
wit: Sale or Delivery of Cocaine, the Circuit Court, in and for
the Fourth Judicial Circuit of Florida, on September 12, 2003,
contrary to the provisions of Sections 790.23(1)(a) and
775.087(2)(a)(1), Florida Statutes.
Resp. Ex. A at 13. The First DCA has recently held that a similarly worded charging
document does not preclude a conviction for either actual or constructive possession.
See Birch v. State, 248 So. 3d 1213, 1217-18 (Fla. 1st DCA 2018). Moreover, the
Information here cited to the relevant statue regarding possession of a firearm by a
convicted felon, Resp. Ex. A at 13, a statute that has been interpreted under Florida law
as meaning actual or constructive possession. See Birch, 248 So. 3d at 1217. As such,
the Information was not defective and properly charged Thornton with both actual and
constructive possession. See State v. Burnette, 881 So. 2d 693, 695 (Fla. 1st DCA 2004)
(noting that “the failure to include an essential element of a crime does not necessarily
render an indictment fundamentally defective when the indictment references a specific
section of the criminal code which sufficiently details all the elements of the offense.”).
Accordingly, there would have been no basis for counsel to object and counsel cannot be
deemed defective for failing to raise a meritless objection. See Diaz v. Sec’y for the Dep’t
of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005) (holding counsel cannot be ineffective for
failing to raise a meritless argument); Bolender v. Singletary, 16 F.3d 1547, 1573 (11th
Cir. 1994) (noting that “it is axiomatic that the failure to raise nonmeritorious issues does
not constitute ineffective assistance.”). As such, Thornton is not entitled to relief on the
basis of the claim raised in Ground Four.
E. Ground Five
Thornton maintains that his trial counsel was ineffective for failing to adequately
cross-examine and impeach the victim, Benn. Petition at 18. According to Thornton, Benn
told police at the time of the incident, as reflected in the arrest and booking report, that
Thornton cut him with a black-handled kitchen knife. Id. However, at trial, Benn testified
that Thornton cut him with a blue-handled pocketknife. Id. Thornton maintains that
counsel should have impeached Benn with his statement to police. Id.
Thornton raised a substantially similar claim in his Rule 3.850 Motion. Resp. Ex. J
at 9-10. In rejecting this claim, the circuit court explained:
[T]his Court finds counsel did impeach Mr. Benn during cross-
examination, albeit on different grounds than those alleged by
Defendant. The record shows counsel impeached Mr. Benn
with his prior, sworn deposition testimony regarding the
amount of time that had passed since Ms. Lester loaned Ms.
Freeman $1,000, and the incident at issue occurred. Mr. Benn
testified during his deposition two to three months had gone
by, but he testified during trial only one month had passed.
This line of questioning served to discredit and cast doubt on
Mr. Benn’s testimony, the same directive and purpose as
impeachment of Mr. Benn about the color of the knife
Defendant used. Since counsel did impeach Mr. Benn,
Defendant has failed to establish the outcome of his trial
would have been different had counsel impeached Mr. Benn
on the additional grounds asserted.
Moreover, the record indicates counsel questioned
Officer Kahre, who responded to the crime scene and spoke
with Mr. Benn. Counsel asked Officer Kahre whether Mr. Benn
had given him a description of the knife Defendant had used
to cut him: whether the knife was blue, whether it was a
folding knife, whether it was a switchblade knife. Officer Kahre
indicated he did not recall if Mr. Benn had described the knife
to him. Counsel further asked Officer Kahre if this information
would have been written in the Arrest and Booking Report,
and Officer Kahre stated it would have been, had Mr. Benn
described the knife. This questioning served to cast doubt on
Mr. Benn’s description of the knife, the same purpose as
impeachment of Mr. Benn about this issue would have. Based
on the foregoing, this Court finds Defendant has failed to fulfill
the requirements of Strickland, such that the outcome of his
trial would have been different had counsel impeached Mr.
Benn as alleged. Accordingly, Defendant is not entitled to
relief and Ground Four is denied.
Id. at 37-39 (emphasis in original and record citations omitted). The First DCA per curiam
affirmed the denial of this claim without a written opinion. Resp. Exs. M; N.
To the extent that the First DCA decided the claim on the merits, the Court will
address the claim in accordance with the deferential standard for federal court review of
state court adjudications. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings. Thus, Thornton is not entitled to
relief on the basis of this claim.
Nevertheless, even if the state appellate court’s adjudication of this claim is not
entitled to deference, the claim in Ground Five is without merit because Thornton can not
demonstrate prejudice under Strickland. The record reflects that Benn testified at trial that
Thornton used a “fold-up” knife, which he described as “dark blue, almost black.” Resp.
Ex. B at 33. Notably, Benn stated Thornton had the handle covered and he only saw the
knife “when he turned and slashed me.” Id. Based on these facts, any value to impeaching
Benn with his statement to police at the time of the incident would have been minimal
given Benn’s trial testimony that he did not get a good look at the knife and the color of
the handle was dark, nearly black. Moreover, Benn had a laceration on his head that
required eight staples. Id. at 121-22. Additionally, officers found a knife in a trash can in
the apartment Thornton shared with his girlfriend, which had Benn’s blood on the blade.
Id. at 211. On this record, there is no reasonable probability the outcome of the trial would
have been different had counsel impeached Benn in the manner suggested, as the State
presented substantial evidence of Thornton’s guilt. In light of the above, relief on the claim
in Ground Five is due to be denied.
F. Ground Six
In Ground Six, Thornton argues that his trial counsel was ineffective for failing to
impeach Nicole Lester. Petition at 19. Thornton asserts that counsel should have
impeached Lester’s trial testimony that she saw Thornton with a gun with the statement
she gave to police, memorialized in the arrest and booking report, in which she told police
she did not see a gun. Id. According to Thornton, had counsel impeached Lester on this
subject, there is a reasonable probability the jury would have disbelieved her entire
testimony and he would not have been found guilty. Id.
Thornton raised a similar claim as ground five of his Rule 3.850 Motion. Resp. Ex.
J at 11-12. The circuit court denied this claim, writing:
This Court . . . further finds Ms. Lester’s credibility was
impeached during trial. Specifically, Ms. Lester testified she
had recently gotten in trouble with the law and had been
arrested. Counsel impeached Ms. Lester during cross-
examination with her previous inconsistent statements she
made during her deposition, about how she and Mr. Benn
went to Defendant’s home because she and Ms. Freeman
“had a lot of laundry to air out.” Counsel elicited further
inconsistent statements from Ms. Lester about her
explanation of how the altercation began at Defendant’s home
and the events which subsequently transpired, specifically
involving the knife and the gun. For example, Ms. Lester
testified during her deposition she saw Defendant hand the
gun to Ms. Freeman, and this statement contradicted her trial
testimony. Most importantly, counsel questioned Ms. Lester
about her description of the gun she saw Defendant holding,
and Ms. Lester provided only a vague description of it.
Because counsel impeached Ms. Lester, albeit on
different grounds than those alleged, counsel’s questioning
served the same purpose: the jury should not find credence
in Ms. Lester’s testimony. Defendant has not established his
trial would have been different had counsel questioned Ms.
Lester as he asserts, especially since the jury found
Defendant not guilty of Aggravated Assault with a Firearm
(Count Two). Through their verdicts as to Count Two, the
jurors did not find Defendant used a firearm during the incident
with Mr. Benn. As such, Defendant cannot demonstrate he
suffered prejudice as required by Strickland. Ground Five is
denied.
Id. at 40-41 (record citation omitted). The First DCA per curiam affirmed the denial of this
claim without a written opinion. Resp. Exs. M; N.
To the extent that the First DCA decided the claim on the merits, the Court will
address the claim in accordance with the deferential standard for federal court review of
state court adjudications. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings. Thus, Thornton is not entitled to
relief on the basis of this claim.
Nevertheless, even if the First DCA’s adjudication of this claim is not entitled to
deference, this claim is unavailing. Thornton’s claim of prejudice under Strickland is
speculative because impeaching a person on one fact does not necessarily mean a jury
would find everything that witness said lacked credibility. Moreover, the jury acquitted
Thornton on count two, the offense for which the State alleged Thornton used a firearm,
and the jury found Thornton did not actually possess a firearm as to count three; instead,
relying on constructive possession. As such, is appears the jury concluded Benn and
Lester’s testimony concerning the gun was not credible; therefore, any impeachment on
matters of the gun would not have had a reasonable probability of changing the outcome
of the trial. Accordingly, as Thornton has failed to demonstrate prejudice, the relief he
seeks in Ground Six is due to be denied.
G. Ground Seven
Thornton also contends that his counsel was ineffective for failing to object to his
HFO sentencing, as Thornton maintains that he does not qualify as such. Petition at 20-
21. One of the two convictions the State relied on in establishing Thornton’s HFO status
was a conviction for driving with a license suspended or revoked (DWLSR conviction),
which Thornton asserts is a misdemeanor conviction, not a felony. Id. at 20. Thornton
acknowledges that his previous DWLSR conviction resulted in him be designated a
habitual traffic offender at the time, which would have made this conviction a felony, not
a misdemeanor. Id. However, he contends that his adjudication as a habitual traffic
offender was wrong as well because he did not have the necessary convictions to qualify
for this status either. Id. at 20-21. According to Thornton, had counsel objected to the use
of the DWLSR conviction, he would not have been adjudicated as an HFO. Id.
Thornton raised a substantially similar claim in his Rule 3.850 Motion. Resp. Ex. J
at 12-15. In denying this claim, the circuit court ruled:
The record indicates, in classifying Defendant as an
HFO, the State relied on his previous convictions for
Possession of Cocaine on August 10, 2009, and Driving While
License Suspended or Revoked-Habitual Offender on
December 11, 2008. During Defendant’s sentencing hearing,
the State filed certified copies of said convictions, neither
which have been overturned or vacated. The certified copy of
Defendant’s conviction for Driving While License Suspended
or Revoked - Habitual Offender lists said offense as a third-
degree felony. Indeed, as discussed supra, said offense is a
third-degree felony.
Further, the record shows Defendant did not object to
his conviction for Driving While License Suspended or
Revoked - Habitual Offender; he testified under oath the
conviction was his, it was a felony, and it had not been set
aside or vacated. The record further shows Defendant
committed the instant offenses on January 19, 2010, well
within five years of the date of his most recent prior felony
conviction on August 10, 2009. As such, this Court finds the
documentation provided by the State during Defendant’s
sentencing hearing shows Defendant was lawfully sentenced
as an HFO. Therefore, counsel was not ineffective for failing
to object because any objection on the basis now suggested
by Defendant would have been without merit and overruled.
See Willacy v. State, 967 So. 2d 131, 140 (Fla. 2007) (citation
omitted) (finding “counsel is not ineffective for failing to make
a futile objection”). Additionally, this Court notes the State
outlined Defendant’s extensive criminal history in great detail
during the sentencing hearing, which includes seven felony
convictions.
Moreover, with the instant argument attempting to
demonstrate his conviction for Driving While License
Suspended or Revoked - Habitual Offender is not a qualifying
prior felony, this Court finds Defendant is seeking to overturn
said conviction, couched in terms of ineffective assistance of
counsel. Indeed, Defendant detailed his belief that said
offense is not a felony, as it pertains to his specific factual
criminal past, for two pages in his instant Motion. If Defendant
seeks to challenge the underlying facts in support of his prior
HFO-qualifying conviction, he must challenge said conviction
in his previous case number, 2008-CF-16565. He may not do
so in the instant case. In sum, because Defendant has failed
to establish counsel rendered deficient performance for failing
to object to the State’s prior felony convictions in support of its
HFO notice, Ground Six is denied.
Id. at 41-43 (record citations omitted). The First DCA per curiam affirmed the denial of
this claim without a written opinion. Resp. Exs. M; N.
To the extent that the First DCA decided the claim on the merits, the Court will
address the claim in accordance with the deferential standard for federal court review of
state court adjudications. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings. Thus, Thornton is not entitled to
relief on the basis of this claim.
Nonetheless, even if the First DCA’s adjudication of this claim is not entitled to
deference, Thornton cannot demonstrate that habeas relief is warranted on this claim.
The record reflects that the State introduced a certified copy of Thornton’s conviction for
DWLSR. Resp. Ex. A at 134-38. That conviction was listed as a third-degree felony on
the certified judgment and sentence form. Id. During the sentencing hearing, Thornton
stated to the circuit court, under oath, that he had reviewed the judgment and sentence
for the DWLSR conviction, admitted he had previously been convicted of that crime, and
that the conviction had not been vacated and he had not been pardoned. Id. at 160-62.
As the DWLSR conviction had not been vacated, counsel had no basis to object to the
imposition of an HFO sentence on these grounds. Had counsel put forth the argument
Thornton advances in his Petition, the circuit court would have overruled the objection
based on the existence of a certified judgment and sentence reflecting a felony conviction
and Thornton’s own testimony on the matter. Accordingly, counsel cannot be deemed
deficient for failing to present a meritless objection. See Diaz, 402 F.3d at 1142; Bolender,
16 F.3d at 1573. Therefore, Thornton’s claim in Ground Seven is due to be denied.
H. Ground Eight
Finally, in his last ground, Thornton asserts that his trial counsel was ineffective for
failing to request a jury instruction on the standard for constructive possession of a firearm
in a jointly occupied premises. Petition at 22-23. For the same reasons Thornton urges in
support of his claim in Ground One that the circuit court erred in failing to read this
instruction, he now argues his counsel should have requested a jury instruction on this
matter. Id.
Thornton raised a similar claim as ground seven of his Rule 3.850 Motion. Resp.
Ex. J at 15-17. The circuit court denied this claim, explaining:
This Court finds that, even had counsel requested such
instruction, the outcome of Defendant’s trial would not have
been different. The evidence presented shows Defendant
jointly occupied the apartment with his girlfriend Ms. Freeman
and their child, and he shared the master bedroom with Ms.
Freeman. Specifically, testimony was presented during trial
describing the apartment as “their house” and, on the day of
the incident, Mr. Benn and Ms. Lester went “over there” to
discuss the $1,000 at issue with Ms. Freeman and Defendant.
As discussed supra in Ground Three, Defendant’s Arrest and
Booking Report indicates he lived at the apartment, as
demonstrated by his listed address.
Further, Officer Lisa Coyle of JSO testified she
responded to the scene first, and Ms. Freeman told her about
a firearm inside a box in the master bedroom. Officer William
Whittlesey of JSO also responded to the scene, and he
located a weapon, specifically a .32 caliber pistol, in the
master bedroom next to the bed. Officer Whittlesey also
recovered a magazine in the closet belonging to the pistol.
Counsel asked Officer Whittlesey and Officer Gray if they
could state who placed the firearm in the master bedroom and
when it was placed there, and both officers indicated they
could not.
As such, as the instruction and corresponding case law
demonstrate, even if the firearm was jointly possessed when
law enforcement found it, both Defendant and Ms. Freeman
were deemed to possess it and have knowledge of it. Indeed,
had counsel requested such instruction, an inference would
have applied that Defendant had knowledge, dominion, and
control over the contraband in the jointly occupied premises.
Therefore, Defendant would have still been found in
possession of the firearm if counsel had requested such
instruction. This Court also adopts its reasoning denying
Ground Three supra regarding the instructions the jury
received as to “possession” of a firearm. Accordingly,
because this Court finds Defendant has failed to establish the
requirements of Strickland, Ground Seven is denied.
Id. at 43-44 (citations and record citations omitted). The First DCA per curiam affirmed
the denial of this claim without a written opinion. Resp. Exs. M; N.
To the extent that the First DCA decided the claim on the merits, the Court will
address the claim in accordance with the deferential standard for federal court review of
state court adjudications. After a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of this claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings. Thus, Thornton is not entitled to
relief on the basis of this claim.
Nonetheless, even if the state appellate court’s adjudication of this claim is not
entitled to deference, this claim is meritless. In Florida, if a defendant cannot demonstrate
an error was fundamental on appeal, he or she can likewise not demonstrate prejudice
under Strickland. Chandler v. State, 848 So. 2d 1031, 1046 (Fla. 2003). As noted above
in the Court’s analysis of Ground One, Thornton raised the circuit court’s failure to read
this same instruction as a claim of fundamental error, but the First DCA found it unavailing.
As such, under Florida law, Thornton cannot demonstrate prejudice. See id. Moreover,
for the reasons the Court explained above as to Ground One, and which the Court hereby
adopts as part of its analysis of Ground Eight, even had this instruction been read, there
is no reasonable probability the outcome of the trial would have been different. The State
produced sufficient independent proof to establish Thornton’s knowledge and control over
the firearm. Accordingly, because Thornton cannot demonstrate prejudice, his claim in
Ground Eight is due to be denied.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Thornton seeks issuance of a certificate of appealability, the undersigned opines
that a certificate of appealability is not warranted. The Court should issue a certificate of
appealability only if the petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial showing, Thornton
“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) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further,’” Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)).
Where a district court has rejected a petitioner’s constitutional claims on the merits,
the petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484.
However, when the district court has rejected a claim on procedural grounds, the
petitioner must show that “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Id. Upon
consideration of the record as a whole, the Court will deny a certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED WITH
PREJUDICE.
2. The Clerk of the Court shall enter judgment denying the Petition and
dismissing this case with prejudice.
3. If Thornton appeals the denial of the Petition, the Court denies a certificate
of appealability. Because the Court has determined that a certificate of appealability is
not warranted, the Clerk shall terminate from the pending motions report any motion to
proceed on appeal as a pauper that may be filed in this case. Such termination shall serve
as a denial of the motion.
4. The Clerk of the Court is directed to close this case and terminate any
pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 16th day of October, 2019.
he Meal Lou
United States District Judge
Jax-8
C: Louis Thornton #J23047
Anne Catherine Conley, Esq.
38