Anderson v. Jones

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

STEVE ANDERSON,

Petitioner,

v. Case No. 3:16-cv-1553-J-32MCR

SECRETARY, FLORIDA

DEPARTMENT OF

CORRECTIONS, et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, Steve Anderson, an inmate of the Florida penal system, initiated

this action by filing a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

§ 2254. See Doc. 1. He challenges his 2009 state court (Duval County, Florida)

convictions for first degree murder and carrying a concealed firearm. He is currently

serving a life term of incarceration.1 Respondents have responded. See Doc. 21;

Response.2 Petitioner filed a Reply. See Doc. 25. This case is ripe for review.

1 Prior to trial the state filed a notice of intent to seek the death penalty;

however, following Petitioner’s penalty phase, the jury recommended that Petitioner

be sentenced to life incarceration and the trial court followed that recommendation.

2 Attached to the Response are numerous exhibits. See Doc. 21-1 through Doc.

21-12. The Court cites to the exhibits as “Resp. Ex.”

II. Governing Legal Principals

A. Standard Under AEDPA

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a

state prisoner’s federal habeas corpus petition. 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)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the petitioner’s claims 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 an 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 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. But

the State may rebut the presumption by showing that the

unexplained affirmance relied or most likely did rely on

different grounds than the lower state court’s decision, such

as alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the record

it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a federal

court cannot grant habeas relief unless the state court’s adjudication of the claim was

“contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States,” or “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)(1), (2). A state court’s factual findings are

“presumed to be correct” unless rebutted “by clear and convincing evidence.” Id. §

2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that state-

court decisions be given the benefit of the doubt.” Renico v.

Lett, 559 U.S. 766, 773 (2010) (internal quotation marks

omitted). “A state court’s determination that a claim lacks

merit precludes federal habeas relief so long as fairminded

jurists could disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)

(internal quotation marks omitted). “It bears repeating that

even a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable.” Id. [at 102] (citing

Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The Supreme

Court has repeatedly instructed lower federal courts that an

unreasonable application of law requires more than mere

error or even clear error. See, e.g., Mitchell v. Esparza, 540

U.S. 12, 18 (2003); Lockyer, 538 U.S. at 75 (“The gloss of

clear error fails to give proper deference to state courts by

conflating error (even clear error) with unreasonableness.”);

Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n

unreasonable application of federal law is different from an

incorrect application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal citations

modified).

B. Exhaustion and 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 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); see also Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel

applies to the state collateral review process as well as the direct appeal process.”).

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,[3] supra, at 747–748,

111 S. Ct. 2546; Sykes,[4] 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, 566 U.S. 1, 9-10 (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

3 Coleman v. Thompson, 501 U.S. 722 (1991).

4 Wainwright v. Sykes, 433 U.S. 72 (1977).

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 and prejudice,

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).[5] 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).

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).

5 Murray v. Carrier, 477 U.S. 478 (1986).

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 effective assistance of

counsel. That right is denied when a defense counsel’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

ineffective assistance, a person must show that: (1) counsel’s performance was outside

the wide range of reasonable, professional assistance; and (2) counsel’s deficient

performance prejudiced the challenger in that there is a reasonable probability that

the outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

Notably, there is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010).

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.” 466 U.S. at 697.

“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 (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, 562

U.S. at 105. As such, “[s]urmounting Strickland’s high bar is never an easy task.”

Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “Reviewing courts apply a ‘strong

presumption’ that counsel’s representation was ‘within the wide range of reasonable

professional assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262

(11th Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is

combined with § 2254(d), the result is double deference to the state court ruling on

counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y,

Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,

concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

III. Analysis

A. Ground One

Petitioner argues that the trial judge abused his discretion in denying

Petitioner’s motion for mistrial. From the barebones allegations in the Petition, it

appears that trial counsel, Quentin Till, Esquire, moved for a mistrial after the trial

court allegedly hindered his ability to ask questions, under the “Colorado Life Jury

Selection Method,” about the jurors’ ability to weigh penalty phase evidence. Doc. 1 at

7-8.

To add context to this issue, the Court will summarize the relevant events that

occurred during jury selection. Both parties were permitted to ask the jurors about

their ability to weigh and consider aggravating and mitigating evidence if Petitioner’s

trial proceeded to a penalty phase. Resp. Ex. B at 163. Trial counsel asked the jurors

to rate themselves on a spectrum of how likely each juror would vote in favor of the

death penalty. The following exchange occurred:

MR. TILL: I look at this whole board and I see 80 percent

with a yes yes to Mr. De la Rionda’s question. What I would

like to do, and I’ll wrap this up, is I’d like to have you give

me a little better idea as to where we are. Now, you

understand if you could never vote for death, no matter

what the situation is, no matter how much mitigation there

is, then you’re not a person who is suitable for this jury

panel because you must weigh these aggravators that the

State presents and the mitigators that we present. And,

likewise, if you think that every murder case where there’s

a conviction of first degree murder, everybody automatically

gets the death penalty, then you’re not suitable to sit on this

jury panel because you’re not abiding by the law and looking

at the mitigators and the aggravators. So we’re looking at it

so these answers that I have here don’t tell me that. I need

to find where, between this side of the spectrum and this

side of the spectrum, you know, where are you in this – on

this matter. So we have the never vote for death and we

have the always vote for death on the other side. So let me

– let me ask the question this way to each of you to give me

a little better insight and just give it some thought. Let’s use

a scale of one to seven. I’ve given you two. One would be I’ll

never vote for death for religious purposes or whatever,

moral purposes, I could never vote for death. That’s a one.

Seven, if you’re guilty of first degree murder, I’m going to

kill you, it’s going to be a death penalty. Okay? So that’s one

and that’s seven. Okay. In between we’ll have a two, a

reluctant supporter of the death penalty possibly. Three, a

soft supporter, pro death or maybe vague reasons that you

may expound. Four, pro death but he’s a listener, feels

comfortable in the death penalty. Five, pro death, skeptic,

has his thoughts about the death penalty. Six, pretty close

to a pro death, but not quite there. A person who might

consider a life sentence equals an economic burden on

society. Death penalty is a deterrent so therefore, I’m a six.

And then there’s seven which is the automatic death

penalty. You’re guilty of first degree murder, that’s the end

of it, close the book. So from one to seven. Does anybody

have any questions about that?

(No response from prospective jurors.)

MR. TILL: And give it some thought.

THE COURT: Why don’t we make number four because it

seemed pretty close –

MR. TILL: Yes, Your Honor.

THE COURT: – that number four is that I would follow the

law that the Judge reads me and if the facts and law

warrant the death penalty I would impose it? Okay?

MR. TILL: I’m sorry, Judge.

THE COURT: Let’s let your example number four be I will

follow the instructions of law the Judge will give me and I’ll

consider all the facts and if the facts warrant the imposition

of the death penalty, I’ll vote for it.

MR. TILL: Okay, Judge.

THE COURT: Because that seemed pretty close to your

number four and then we can use your other numbers if they

understand them.

MR. TILL: Do you understand that, how the Judge just

modified it? Thank you, Judge. Okay. Now, Ms. Ortiz, let

me ask you a question. Where do you stand? I know we’ve

already talked about this. Where would you stand on a scale

of one to seven?

PROSPECTIVE JUROR: Could you repeat what’s number

four again?

MR. TILL: Four?

PROSPECTIVE JUROR: I just want to make sure.

MR. TILL: A pro death –

PROSPECTIVE JUROR: Um-hum.

MR. TILL: – listener, a person, though, who can follow the

law and the instructions from the court, who feels

comfortable and secure in the death penalty, that wants to

hear both sides, will listen to mitigation and could give a life

sentence, if the mitigation outweighs the aggravators. And

that would be a four. Okay? So with that said –

MR. De la RIONDA: That’s not what the Court said.

MR. TILL: I’m sorry, Judge.

THE COURT: Well, you just changed the definition, which

is fine. As long as everybody – as long as everyone

understands it, that’s fine.

PROSPECTIVE JUROR: I’ll have number six.

MR. TILL: Six?

PROSPECTIVE JUROR: Yes.

MR. TILL: Okay, ma’am. Mr. Howell.

PROSPECTIVE JUROR: Seven. I was going to go with four,

but now that’s changed. I have to go back to seven.

THE COURT: Well, let’s back up a minute then because I’m

sure everybody is almost as confused as I am.

Start all over again, Mr. Till.

Ladies and gentlemen, what I want you to do is if –

what I don’t want you to do is agree with a number just to

agree with a number. Obviously we all know this is a very

serious matter. What Mr. Till is trying to find out is if you’re

so pro death penalty you don’t care what the aggravators

and mitigators are, you’re just going to vote for the death

penalty if Mr. Anderson is found guilty of first degree

murder. He wants to know if any of those folks are out there.

MR. TILL: Correct, Your Honor. Right.

THE COURT: And I want to know if there are folks out

there that will listen to the instructions of law and the facts

of this case and make a decision whether death or life

without parole is appropriate. And then the other end of the

scale, if you will, are individuals who would never vote for

the death penalty and for that reason could not vote for

guilty in the first phase of the trial.

So can’t we go down to just three places, Mr. Till?

That is number one is I’m not going to vote for the death

penalty regardless.

MR. TILL: Okay. If you don’t mind me asking the question.

THE COURT: Then the second choice is that I’ll follow the

law and the facts and I’ll decide and then the third group of

people would be folks who would automatically impose the

death penalty in the event of a conviction.

MR. TILL: That’s fine, Judge.

THE COURT: Okay.

MR. TILL: One, two, and three.

THE COURT: Okay.

MR. TILL: But I would like to ask a little bit more in detail.

THE COURT: Try it.

MR. TILL: Okay. With the modification, okay, it changes

this, where do you stand on the death penalty with now it’s

two, but then again, what is two? I’ll follow the law and

facts.

Judge, I don’t think it’s a funny matter.

THE COURT: Well, they just saw me put my hands over my

head like this because I already told them what two was and

you’re changing it again. You’re right, it’s nothing funny at

all about it, but if I had hair, I’d be pulling it out because I

already told them what two was. Let me ask the question

for you.

Ladies and gentlemen, is there anybody out there –

and I think there probably are some because I’ve heard this

before. Are there people out there that simply would not

vote for the death penalty under any circumstances? If so,

raise your hand.

(Prospective jurors indicating.)

THE COURT: Okay. And we have Mr. Gooden, Ms. Nunn,

and Ms. Barber. All right.

Now, if during the guilty phase the defendant is

found guilty of first degree murder, is there anybody who,

because you found him guilty of first degree murder, would

automatically vote for the death penalty if so, raise your

hand?

(Prospective juror indicating.)

THE COURT: I see no hands.

PROSPECTIVE JUROR: There’s one.

THE COURT: Raise your hand for me.

(Prospective juror indicating.)

THE COURT: And that’s Ms. Wisniewski? Am I on the

wrong row? Ms. Garner?

PROSPECTIVE JUROR: Yes.

THE COURT: So if the defendant is found guilty of first

degree murder, would you automatically vote for the death

penalty?

PROSPECTIVE JUROR: (Nods head.)

PROSPECTIVE JUROR: Thank you.

And as far as everyone else, can you follow the law

that I will instruct you, in the event of a finding of guilt, and

weigh the aggravators and mitigators and either

recommend death or life, depending on what’s warranted by

the facts and the law in this case? Can the rest of you do

that?

(Affirmative response from prospective jurors.)

Resp. Ex. B at 175-82.

The next day, trial counsel filed a written motion for mistrial, because the trial

judge “grabbed his head in frustration, and made some comment about if he had hair

he would be pulling it out” when trial counsel was in the process of using a death

penalty grading chart. Resp. Ex. A.2 at 679-80. The trial court denied the motion for

mistrial and provided the parties with a written opinion supporting his denial. Resp.

Exs. A.2 at 678; A.3 at 949-51. On direct appeal, Petitioner, through appellate counsel,

challenged the trial court’s denial of the motion for mistrial. Resp. Ex. C. The state

filed an answer brief, see Resp. Ex. D, and Petitioner filed a reply brief, see Resp. Ex.

E. The First District Court of Appeal per curium affirmed the trial court’s denial

without a written opinion. Resp. Ex. I. To the extent that Ground One can be liberally

construed as a federal constitutional challenge6 and to the extent that the First DCA

addressed this claim on the merits, the Court will address the claim in accordance

with the deferential standard for federal court review of state court adjudications.

While a defendant on trial for his life must be permitted on voir dire to ascertain

whether his prospective jurors would impose death regardless of the facts and

circumstances and law, see Morgan v. Illinois, 504 U.S. 719, 729 (1992), judges are

accorded ample discretion in determining how best to conduct voir dire, see Rosales-

Lopez v. United States, 451 U.S. 182, 188-89 (1981). In its written opinion denying

Petitioner’s motion for mistrial, the trial court explained that “[w]hen defense counsel

tried to ask a question concerning the 1-7 scale of the jurors’ attitude on the death

penalty it was obvious to the Court that the question was misleading and not

understood by the Court much less the prospective jurors.” Resp. Ex. A.3 at 950. As

such, the trial court used its discretion and “helped defense counsel rephrase the

question and a fair panel was chosen.” Id. Further, because the empaneled jury

ultimately recommended that Petitioner be sentenced to life in prison, and the trial

court followed that recommendation when it sentenced him, Petitioner cannot

demonstrate that the trial judge’s denial of his motion for mistrial rendered his trial

unfair.

As such, upon review of the record, the Court concludes that the state court’s

6 Respondents assert that this claim is unexhausted because Petitioner failed

to present it to the state court as a federal constitutional claim. Resp. at 21-26. Even

if Petitioner failed to cite to federal case law when raising this claim in state court, the

state court was given an opportunity to fully address the underlying issue, and thus,

the Court finds it exhausted.

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. Ground One is due to be denied.

B. Ground Two

Petitioner argues that the trial court erred in denying his motion for judgment

of acquittal because the evidence failed to establish the elements of the carrying a

concealed firearm charge. Doc. 1 at 9-11.

To add context to this claim, the Court will summarize the relevant record

evidence. At the close of the state’s case, trial counsel moved for a judgment of

acquittal arguing, in pertinent part, that the state failed to meet its burden of proving

that the gun was concealed because both detectives testified that the gun was in plain

view. Resp. Ex. B at 632. In response, the state argued that it was relying on

eyewitness Steven Ellis’ trial testimony to support that charge. Notably, the trial court

and the state engaged in the following colloquy:

THE COURT: Mr. De la Rionda, tell me what evidence there

is that the firearm was concealed from the ordinary view of

a person.

MR. De la RIONDA: Mr. Ellis has testified that [defendant]

took it out from his back or that he couldn’t remember if it

was the waist or his pockets specifically. I’m not relying on

the officer’s observations of the defendant, but on that. And

there were also, I believe, other witnesses that said he was

doing something with his back as he was walking by and

they observed his backside. Specifically Mr. Ellis said when

the defendant approached from the back, he had either the

gun in his waistband or his pocket. He took the gun out of

that position and that’s where it would have been concealed.

THE COURT: Is it your position that Mr. Ellis did not see a

gun but he saw him reach in some concealed area of his body

and pull it out?

MR. De la RIONDA: That is correct, yes, sir.

Resp. Ex. B at 635-36. The Court then explained that “at this point I’m going to deny

your motion and I’ll revisit it at the end of all the evidence in the case . . . and then I’ll

check that part of the testimony of Mr. Ellis and we’ll talk about it further.” Id. at 637.

Following trial counsel’s presentation of the defense witnesses, trial counsel renewed

the motion for judgment of acquittal. Id. at 691. Outside the presence of the jury and

upon the trial court’s request, the court reporter read aloud Mr. Ellis’ testimony

regarding the firearm. Id. The following colloquy then occurred:

THE COURT: Mr. De la Rionda, the only direct evidence

that I’ve heard on the issue of concealment of a firearm was

just read where Mr. Ellis testified that the defendant pulled

out a gun and he had it in his waist or his both [sic]. Do you

have any other?

MR. De la RIONDA: No, sir, I believe that was the

testimony that he pulled it out of his waist or out of his

pocket. That’s correct.

THE COURT: And from that it’s your position that you can

argue to the jury it was concealed?

MR. De la RIONDA: That is correct.

THE COURT: And, Mr. Till, it’s your position that it could

have been partially concealed?

MR. TILL: Yes, Your Honor.

THE COURT: Okay. Well, I think there’s at least sufficient

evidence to permit the jury to decide that question so I will

permit the jury to determine whether or not it was concealed

or not. So I’ll deny your motion.

Id. at 692-93. On direct appeal, with the help of appellate counsel, Petitioner argued

that the trial court erred in denying his motion for judgment of acquittal regarding

the carrying a concealed firearm charge. Resp. Ex. C at 23. The state filed an answer

in opposition, and Petitioner filed a reply brief. Resp. Exs. D; E. The First DCA per

curiam affirmed the trial court’s denial without a written opinion. Resp. Ex. I. To the

extent that the First DCA affirmed the trial court’s denial of Petitioner’s motion for

judgment of acquittal on the merits, the Court will address the claim in accordance

with the deferential standard for federal court review of state court adjudications.

When reviewing an insufficiency of the evidence claim in a habeas petition, a

federal court must determine “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,

319 (1979). The court must assume that the jury resolved any evidentiary conflicts in

favor of the prosecution, and the court must defer to that resolution. Id. The jury found

Petitioner guilty of carrying a concealed firearm contrary to the provisions of section

790.01(2), Florida Statutes. Resp. Ex. A.3 at 991. For a firearm to be concealed, it

must be: (1) carried on or about the person, and (2) in such a manner as to be hidden

from the ordinary sight of another person. § 790.001(2), Fla. Stat. The main issue is

whether an individual, standing near a person with a firearm, may by ordinary

observation know the questioned object is a firearm. Ensor v. State, 403 So. 2d 349,

354-55 (Fla. 1981). Absolute invisibility is not a necessary element to finding

concealment. Id.

At trial, eyewitness Ellis testified that saw Petitioner shoot the victim. Resp.

Ex. B at 265-71. According to Ellis, on the day of the shooting, he and the victim had

driven back to the victim’s apartment to retrieve the tickets to their high school prom.

Id. Ellis waited in the car while the victim went inside. Id. He testified that the victim

walked out of his apartment and towards the driver’s side of the vehicle. Id. at 271.

Ellis then explained the following:

A When Jerome [the victim] came to the driver’s

side of the door, he [Petitioner] came and

pulled out a gun on my side of the car.

Q Okay. So does he come from your side of the

car?

A Yes, sir.

Q Okay. What did the gun look like?

A It was a black gun.

Q Okay. And when you say he pulled it out, what

do you mean by that?

A Seemed like he pulled it out of his waist or his

pocket.

Q And did he have it in his hand?

A Yes, sir.

Q Okay. What happened then?

A He came around to the driver’s side where

Jerome was.

Q So did he go around the back of your truck or

in front of you?

A He came around the back.

Q How were you able to see him when he was

coming around the back?

A In the rear view mirror.

Q Okay. And were you able to say anything to

Mr. Dawson, that here’s this man with a gun?

A No, sir.

Resp. Ex. B at 274-75. Ellis testified that Petitioner then yelled “come here, boy” to

the victim, and when the victim began to run back up to his apartment, Petitioner

began shooting the victim in the back. Id. at 276-77. Other residents in the apartment

complex testified that they heard gunshots and then saw a man running. Id. at 378-

80. The man appeared to be adjusting something heavy in his pants or had his hands

behind his back adjusting something. Id. at 382, 404.

While the evidence on the concealed weapon charge was thin, taken in the light

most favorable to the state, the Court nevertheless finds there was sufficient evidence

to permit a rational trier of fact to find Petitioner guilty of carrying a concealed

firearm. Further, it is apropos to note that upon his conviction for carrying a concealed

firearm, Petitioner received a 16.65-month term of incarceration to run concurrent

with his life sentence on count one. See Resp. at 2. Thus, the concealed firearm

conviction did not affect the sentence Petitioner ultimately received. As such, upon

review of the record, 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. Ground Two is due to be denied.

C. Ground Three and Ground Four

In Ground Three, Petitioner alleges that trial counsel was ineffective for failing

to raise and argue that the statements Petitioner made at the time of his arrest were

obtained in violation of his Miranda7 rights. Doc. 1 at 12. In Ground Four, Petitioner

asserts that trial counsel was ineffective for failing to file a written argument

supporting Petitioner’s pretrial motion to suppress the statements made during

Petitioner’s arrest. Doc. 1 at 14-15. In both of these Grounds, Petitioner also seems to

allege that the trial court erred in denying Petitioner’s motion to suppress.

As to the claims of ineffective assistance of counsel alleged in Grounds Three

and Four, Petitioner raised these claims in his state court motion for postconviction

relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Resp. Ex. N at 5-7.

The trial court conducted an evidentiary hearing on an unrelated ground. Thereafter,

the trial court summarily denied these claims as follows:

In Ground One, Defendant claims counsel was

ineffective for failing to file a motion to suppress the

incriminating statement, “I’m the one that you are looking

for,” because Defendant was not Mirandized[] when he

made the statement. Similarly, in Ground Two, Defendant

maintains that counsel was ineffective for failing to provide

the trial court with written argument to support

Defendant’s Motion to Suppress Physical Evidence and

Statements. These claims are refuted by the record.

7 Miranda v. Arizona, 384 U.S. 436 (1966).

The record shows that on February 1, 2009, counsel

filed a Motion to Suppress Physical Evidence and

Statements, which specifically requested the trial court

suppress the incriminating statement, “I’m the one that you

are looking for,” along with other incriminating statements

and certain physical evidence. (Ex. B.) On February 19,

2009, the trial court held a hearing on the Motion, during

which the State presented three witnesses. (Ex. C.) On

February 23, 2009, the trial court held another hearing on

the Motion to allow the parties to present oral argument.

(Ex. D.) At the hearing, trial counsel announced he was not

prepared to present oral argument, so the trial court invited

both parties to submit written closing arguments. (Ex. D. at

19.) On February 26, 2009, the trial court entered an Order

Denying the Motion to Suppress Physical Evidence and

Statements, finding the statements made by Defendant

were freely and voluntarily made and were not in response

to questions asked by law enforcement. (Ex. E.) The trial

court also noted that neither party submitted a written

closing argument. (Ex. E.) However, at a hearing held the

same day, the trial court stated “it did not make a

difference” that counsel did not file a written closing

argument, “because quite frankly, I’m very knowledgeable

of the law in the State of Florida. I did consider all of the

facts, and I have prepared an order denying the motion to

suppress.” (Ex. F at 3-4.) Subsequently, counsel filed a

Motion for Rehearing, which the trial court denied in open

court on March 2, 2009. (Exs. G, H.)

Contrary to Defendant’s claims, Counsel did file a

motion to suppress Defendant’s incriminating statement.

Furthermore, the record establishes that Defendant was not

prejudiced by counsel’s failure to file a written closing

argument, as the trial court’s statements show there is no

reasonable probability it would have granted the motion to

suppress had counsel filed a written argument. As such,

Defendant is not entitled to relief.

Resp. Ex. N.2 at 424-25. Petitioner appealed the trial court’s order denying his Rule

3.850 motion; however, his pro se brief filed on appeal did not contain argument

regarding the trial court’s summary denial of these two claims. Resp. Ex. O. As such,

Respondents argue that these two Grounds are unexhausted and procedurally

defaulted. Resp. at 37-45.

An appeal following a postconviction proceeding for which an evidentiary

hearing was held requires briefs, and failure to include issues in the appellate brief is

abandonment of those claims even when the evidentiary hearing is not held on all

grounds. Fla. R. App. P. 9.141(b)(3)(C); Cortes v. Gladish, 216 F. App’x 897 (11th Cir.

2007) (finding failure to address issues in an appellate brief following an evidentiary

hearing on a Rule 3.850 motion would constitute a waiver of the unbriefed issue);

Rogers v. Sec’y, Dep’t of Corr., No. 8:07-CV-1375-T-30TGW, 2010 WL 668261, at *53

(M.D. Fla. Feb. 19, 2010) (citing Cortes and finding Rogers waived and defaulted his

claim by not briefing the claim after receiving an evidentiary hearing on his Rule 3.851

motion in state court).

Here, Petitioner received an evidentiary hearing on his Rule 3.850 motion.

Resp. Ex. N.2 at 423. As such, Petitioner was required to file an appellate brief

addressing each claim he wanted the appellate court to review when appealing the

trial court’s order denying his Rule 3.850 motion. Although he filed an appellate brief,

he did not brief the claims raised at bar, electing to brief other issues. Petitioner’s

failure to fully brief and argue points on appeal constituted a waiver of the allegations

in Grounds Three and Four. Thus, they are not exhausted and are now procedurally

defaulted.

In his Reply, Petitioner appears to argue that postconviction counsel was

ineffective for failing to brief these issues during Petitioner’s state postconviction

appeal. See Doc. 25 at 5-8. A review of the trial court docket shows that counsel was

appointed to represent Petitioner during the evidentiary hearing. However, following

its denial of Petitioner’s Rule 3.850 motion, the trial court denied Petitioner’s request

for counsel to represent him during the postconviction appeal. Id. Petitioner now

seems to argue the equitable rule outlined in Martinez to overcome his failure to brief

these issues in his pro se appellate brief. Under Martinez, Petitioner must

demonstrate more than the general assertion that the trial court did not appoint

counsel in the initial-review collateral proceeding. 566 U.S. at 14. Petitioner 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.” Id. (citations omitted); see also Lambrix v. Sec’y Fla. Dept. of Corr., 851

F.3d 1158, 1164 (11th Cir. 2017). Conversely, his claim is “insubstantial” if “it does

not have any merit or . . . is wholly without factual support.” Id. at 16.

The Court finds that Petitioner cannot demonstrate that his underlying

ineffective assistance of counsel claims are substantial in order to overcome his

procedural default under Martinez. Indeed, trial counsel filed a motion to suppress

and the trial court conducted an extensive hearing on the motion. Resp. Ex. A.4 at

1140-1268. During the hearing, Officer Israel Warren testified that he responded to

the dispatcher’s call that a shooting had taken place at an apartment complex. Id. at

1146. He heard a description of the suspect on the call. Id. at 1147. According to

Warren, as soon as he turned on the street of the apartment complex, he saw Petitioner

who matched the suspect’s description. Id. at 1148-49. He explained that Petitioner

saw his patrol car and immediately approached it. Id. at 1149. Warren testified that

as soon as he advised Petitioner that he was conducting an investigation, Petitioner

responded “I’m the one you’re looking for.” Id. According to Warren, Petitioner did not

make the statement in response to any questioning from Warren. Id. at 1150. Warren

testified that he then put Petitioner into handcuffs as Petitioner, unprovoked, made

the following statements: “I’m the one you’re looking for. I did it, officer. Man, I was

trying – I was tired of his shit, I told him to leave me alone, he kept bothering me. Y’all

was called last night about the same bullshit, talk to Officer Stanford.” Id. at 1151.

Following the hearing, the trial court entered a written order denying the

motion to suppress, finding that the evidence presented at the evidentiary hearing

showed that all the statements made by Petitioner were freely and voluntarily made

and were not in response to questions asked by law enforcement. Id. at 473-74.

Because Petitioner’s allegations that trial counsel was ineffective for failing to file a

motion to suppress lacks any factual support and because his claim that counsel was

ineffective for failing to submit a written argument lacks merit, Petitioner’s Strickland

claims are unsubstantial. Therefore, Petitioner cannot benefit from the Supreme

Court’s holding in Martinez, and he must satisfy Coleman’s cause and prejudice

standard or satisfy the fundamental miscarriage of justice exception. He cannot meet

either exemption. As such, this Court finds the ineffective assistance of counsel claims

in Grounds Three and Four are procedurally defaulted. See Coleman, 501 U.S. at 729-

30.

Insofar as, Petitioner alleges that the trial court erred in denying Petitioner’s

motion to suppress, there is no record evidence that Petitioner exhausted these claims

in state court. Thus, they are unexhausted and procedurally defaulted and Petitioner

fails to show cause or prejudice to excuse this procedural default. He further fails to

demonstrate a fundamental miscarriage of justice. Ground Three and Ground Four

are due to be denied.

D. Ground Five

Petitioner alleges that trial counsel was ineffective for failing to

contemporaneously file a motion for mistrial when, during jury selection, the trial

court exhibited the alleged noticeable signs of frustration summarized in Ground One

above. Doc. 1 at 16-17. Petitioner maintains that trial counsel’s decision to wait until

the next day to file a written motion for mistrial was inadequate to correct the error.

Petitioner raised these allegations in his Rule 3.850 motion. Resp. Ex. N.1 at 9-

10. The trial summarily denied the allegations as follows:

In Ground Three, Defendant maintains that counsel

was ineffective for failing to file a timely, contemporaneous

motion for mistrial during jury selection. This claim is

refuted by the record. Jury selection began on August 3,

2009. The next day, counsel filed a Motion for Mistrial

arguing the trial court prohibited counsel from posing

certain hypothetical questions during jury selection and the

trial court improperly pantomimed the act of “tearing one’s

hair out.” (Ex. L) Counsel acknowledges in the motion that

he did not make a contemporaneous oral motion for mistrial

during jury selection when the events in question took place.

The trial court denied the motion for mistrial in open court

on August 4, 2009. (Ex. J.) However, on August 17, 2009,

the trial court entered a written order setting forth the

reasons for denying the motion for mistrial, in which the

trial court considered the merits of the Motion. (Ex. K.) As

such, Defendant has failed to show that he was prejudiced

by counsel’s failure to contemporaneously move for a

mistrial during jury selection. As such, Defendant is not

entitled to relief.

Resp. Ex. N.2 at 426. Petitioner briefed this issue in his pro se appellate brief filed

during his appeal of the trial court’s order denying his Rule 3.850 motion, see Resp.

Ex. O at 11, and the state filed an answer brief, see Resp. Ex. P. The First DCA per

curiam affirmed the trial court’s summary denial without a written opinion. Resp. Ex.

R. To the extent that the First DCA affirmed the trial court’s denial on the merits, the

Court will address the claim in accordance with the deferential standard for federal

court review of state court adjudications.

Petitioner argues that trial counsel’s motion for mistrial was filed “too late to

allow for correction of any asserted error.” While trial counsel may not have filed the

motion for mistrial until the day after the trial court allegedly showed signs of

frustration and after the jury was selected, the trial court denied the motion for

mistrial on the merits. On direct appeal, Petitioner challenged the trial court’s denial

of the motion for mistrial and the First DCA affirmed the trial court’s decision.

Because Petitioner’s motion for mistrial was fully adjudicated on the merits in state

court, Petitioner has failed to show how trial counsel’s failure to contemporaneously

object during jury selection deemed the objection “too late to allow for corrections.”

Further, as discussed in the Court’s analysis of Ground One above, after observing

that the jurors were clearly confused with trial counsel’s questioning, the trial court

used its discretion to rephrase trial counsel’s questions. Petitioner has failed to

demonstrate prejudice, and after a review of the record and the applicable law, the

Court concludes that the state court’s adjudication of the 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. Ground Five is

due to be denied.

E. Ground Six

Petitioner argues that the state’s failure to inform Petitioner that Ellis’ trial

testimony would be different than his deposition testimony violated Petitioner’s rights

under the Sixth and Fourteenth Amendment. In support of this claim, Petitioner

contends that during trial, Ellis testified that he saw Petitioner standing behind the

vehicle and he pulled a gun from either his waistband or his pocket. However,

according to Petitioner, during his deposition, Ellis testified that he saw Petitioner

pull the gun from his waistband and never mentioned it might have been in his pocket.

Petitioner avers that the trial court relied on Ellis’ inaccurate trial testimony to deny

Petitioner’s motion for judgment of acquittal on the carrying a concealed weapon

charge.

Petitioner appears to have raised this claim in his Rule 3.850 motion by alleging

that the state’s failure to disclose Ellis’ change in testimony amounted to a

Richardson8 violation. Resp. Ex. 11-12. The trial court summarily denied the claim in

relevant part:

In Ground Four, Defendant contends the trial court

erred by not holding a Richardson[] hearing when the State

8 Richardson v. State, 246 So. 2d 771 (Fla. 1971).

failed to inform Defendant of a conflict between witness

Steven Ellis’s deposition testimony and trial testimony.

Defendant contends the State’s failure to inform Defendant

of the change in the witness’s testimony was “tantamount

to failing to disclose witness and thus state committee [sic]

discovery violation . . . .” (Def.’s Mot. 11.) Defendant’s

allegation that the trial court should have held a Richardson

hearing could have been raised on direct appeal and is

therefore not proper in a motion for postconviction relief.

Stallings v. State, 319 So. 2d 640, 641 (Fla. 1st DCA I 975)

(“A motion to vacate and set aside judgment and sentence is

properly denied when the matters could have been raised on

direct appeal.”) (citation omitted). The purpose of a rule

3.850 motion is to provide a means of inquiry into the

alleged constitutional infirmity of a judgment or sentence,

not to review ordinary trial errors cognizable by means of a

direct appeal. Ratliff v. State, 256 So. 2d 262, 264 (Fla. 1st

DCA 1972). In addition, even if Defendant’s claim was

cognizable in the instant rule 3.850 Motion, the Court finds

that Mr. Ellis’s trial testimony did not conflict with his

deposition testimony such that it was “tantamount to failing

to disclose a witness.” (Exs. L, M, N.) At his Deposition, Mr.

Ellis gave the following testimony:

Q: So did you say anything to Jerome[9] about

the gun?

A: No, ma’am.

Q: Okay. And when you say “waistband,” you

don’t know if he’s pulling it out of his

waistband or from the area or from the pocket

or just?

A: All I seen was he just pulled it out

(demonstrating).

(Ex. L at l3.) Similarly, Mr. Ellis testified at trial that it

“[s]eemed like he pulled [the gun] out of his waist or his

pocket.” (Ex. N at 274.) Mr. Ellis seemed unable to pin point

the exact location from which Defendant pulled his gun both

9 Jerome is the victim in this case.

times he provided testimony on the matter. Accordingly,

Defendant is not entitled to relief on this claim.

Resp. Ex. N.2 at 426-27. Petitioner appealed the trial court’s order denying his Rule

3.850 motion; however, his pro se brief filed on appeal did not contain argument

regarding the trial court’s summary denial of this claim. Resp. Ex. O. As such,

Respondents argue that this Ground is unexhausted and procedurally defaulted. Resp.

at 68-70.

Petitioner’s failure to brief this issue during his postconviction appeal renders

it unexhausted and procedurally defaulted. See Cortes, 216 F. App’x at 897. In his

Reply, Petitioner recognizes this claim is unexhausted, but argues that the Court

should overlook this procedural bar because he was denied effective postconviction

counsel. Doc. 25 at 11-12 (citing Martinez, 566 U.S. at 9-10). However, the holding in

Martinez is narrow and only applies to overcome the procedural default of an

ineffective assistance of trial counsel claim. See Gore v. Crews, 720 F.3d 811, 816 (11th

Cir. 2013) (“By its own emphatic terms, the Supreme Court’s decision in Martinez is

limited to claims of ineffective assistance of trial counsel otherwise procedurally

barred due to the ineffective assistance of post-conviction counsel.”). Thus, Petitioner’s

reliance on Martinez is misplaced and inapplicable. Nevertheless, even if Martinez

were applicable to this claim, this claim is unsubstantial because it lacks factual

support and is meritless. As the trial court noted in its order, Ellis’ deposition

testimony was substantially the same as his trial testimony. See Resp. Ex. N.2 at 427.

Thus, Ground Six is due to be denied.

F. Ground Seven

In Ground Seven, Petitioner argues that trial counsel was ineffective for failing

to file a motion to recuse the trial judge when he showed signs of frustration during

jury selection. Doc. 1 at 20-21. The alleged signs of frustration are described in Ground

One of this Order.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. N.1 at 13-14.

The trial court summarily denied the claim as follows:

In Ground Five, Defendant claims counsel was

ineffective for failing to move to recuse the trial judge when

he exhibited “signs of frustration, illness and or intolerance”

during jury selection. (Def.’s Mot. 13.) Claims of judicial bias

during trial should be raised on direct appeal and are

procedurally barred in postconviction proceedings.

Rodriguez v. State, 919 So. 2d 1252, 1274 (Fla. 2005); Wilacy

v. State, 967 So. 2d 131, 142 (Fla. 2007) (holding

postconviction claim that trial counsel was ineffective for

failing to move to recuse trial judge should have been raised

on direct appeal). As such, Defendant is not entitled to

relief.

Resp. Ex. N.2 at 427-28. Petitioner briefed this issue in his pro se appellate brief filed

during his postconviction appeal, arguing that the trial court erred in not allowing

Petitioner an opportunity to amend this claim before summarily denying it. Resp. Ex.

O at 18. The First DCA per curiam affirmed the trial court’s denial without a written

opinion. Resp. Ex. R. Although the state court declined to consider this claim on the

merits and found it was not cognizable on collateral review, Respondents do not assert

the affirmative defense of procedural default. Resp. at 46-67. Nevertheless, the Court

need not decide the adequacy of the state’s procedural bar or the question of whether

Respondents waived such defense as this claim fails on the merits.

The Florida Rules of Judicial Administration provide for the disqualification of

a judge on the ground “that the party fears that he or she will not receive a fair trial

or hearing because of specifically described prejudice or bias of the judge.” Fla. R. Jud.

Admin. 2.330(d)(1); see also Thompson v. State, 990 So. 2d 482, 489–90 (Fla. 2008).

“[T]he legal sufficiency of a motion to disqualify depends on ‘whether the facts alleged

would place a reasonably prudent person in fear of not receiving a fair and impartial

trial.’” Thompson, 990 So. 2d at 490 (quoting Livingston v. State, 441 So. 2d 1083, 1087

(Fla. 1983)). Counsel’s failure to file a sufficient motion to disqualify may constitute

deficient performance under Strickland. See id. at 489. The defendant may show

prejudice if the deficiency renders the result of the proceeding unreliable and

undermines confidence in the outcome. See id. at 490;

As an initial matter, Petitioner’s claim, as presented in the Petition, is too

general and conclusory to support a claim for federal habeas relief. See Tejada v.

Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported

allegations cannot support an ineffective assistance of counsel claim). The only

evidence that Petitioner offers to support this claim is that the trial judge exhibited

frustration at trial counsel’s confusing questions during voir dire. However, there was

no basis for moving to disqualify the trial judge, and trial counsel was not deficient in

failing to file such a motion.

Further, Petitioner cannot show prejudice resulting from trial counsel’s failure

to move to disqualify the trial judge. As the trial judge explained in his opinion denying

Petitioner’s motion for mistrial, “if the [trial] [c]ourt felt that it’s statements or rulings

were in any way prejudicial a continuance would have been granted and a new jury

selected.” Resp. Ex. A.3 at 950. Notably, the trial court clarified that “[t]he best

evidence of the fact that defendant received a fair trial by an impartial jury was the

actual excusal of several jurors for cause because of their attitude toward the death

penalty and the fact that the selected jury recommended life imprisonment to the

[trial] [c]ourt when the evidence was overwhelming that the defendant shot the victim

in the back five times causing his death.” Id. The trial court also followed the

recommendation of the jury and sentenced Petitioner to life imprisonment.

Accordingly, Petitioner has not demonstrated prejudice under Strickland. Ground

Seven is due to be denied.

G. Ground Eight

Petitioner argues that the state violated his due process rights by requiring him

“to stand trial and defraud himself against charges that it [knew were] based upon

perjured” testimony from material witness Officer S.S. Russo.10 Doc. 1 at 22-23. He

also appears to allege that trial counsel was ineffective for failing to challenge the

Indictment because it was based on perjured testimony.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. N.1 at 15. The

trial court summarily denied this issue, finding in relevant part:

In Ground Six, Defendant challenges the sufficiency

of the indictment and claims the State “violated Florida’s

due process clause by requiring Defendant to stand trial and

defraud himself against charges that it knows are based

upon perjured, material testimony witness and detective,

10 Officer S.S. Russo was the officer who completed Petitioner’s arrest and

booking report. Resp. Ex. A.1 at 1-4.

defense counsel failed to impeach.” (Def.’s Mot. l5.)

Defendant contends counsel was ineffective for failing to

challenge the allegedly defective indictment. Specifically,

Defendant complains that counsel never knew who testified

before the grand jury, and that counsel should have objected

because it was based on perjured testimony and that “S.S.

Russo #6281 is not a material witness.” (Def.’s Mot. 15.)

The record shows that counsel filed a Motion for

Transcripts of Grand Jury Proceedings on February 2, 2009

at Defendant’s request. (Ex. O.) In the Motion, counsel

requested the transcripts to “[a]scertain[] whether the

testimony of the witness is consistent with the testimony of

the witness which will be given by the witness before the

Court.” (Ex. O at 1.) On February 5, 2009, the trial court

heard argument in support of the Motion, but ultimately

denied the Motion, citing Murry v. State, 3 So. 3d 1108, 1119

(Fla. 2009). (Ex. P.) Moreover, Officer Russo did not testify

at trial, so counsel never had the opportunity to cross

examine him to impeach his grand jury testimony. (Ex. N at

403, 604.)

Moreover, unless an indictment or information is

fundamentally defective, the failure to file a timely motion

to dismiss waives the defect and it may not be raised for the

first time after trial. Jones v. State, 415 So. 2d 852, 853 (Fla.

5th DCA l982). A charging document is fundamentally

defective if it totally omits an essential element of the crime

or is so vague, indistinct, and indefinite as to mislead the

defendant. Id. (citing State v. Fields, 390 So. 2d 128 (Fla.

4th DCA 1980)). Defects in charging documents “are not

always fundamental where the omitted matter is not

essential, where the actual notice provided is sufficient, and

where all the elements of the crime in question are proved

at trial.” Carbajal v. State, 75 So. 3d 258, 262 (Fla. 2011)

(quoting State v. Gray, 435 So. 2d 816, 818 (Fla. 1983)).

Further, “[i]f the information recites the appropriate statute

alleged to be violated, and if the statute clearly includes the

omitted words, it cannot be said that the imperfection of the

information prejudiced the defendant in his defense.” Jones,

415 So. 2d at 853 (citation omitted).

Defendant’s indictment refers to the relevant

statutory provisions, Florida Statutes sections 782.04-(l)(a)

and 775.087(1), and states that Defendant “did then and

there kill [the victim] . . . by shooting him, and during the

commission of the aforementioned Murder in the First

Degree . . . [Defendant] carried, displayed or used a firearm

. . . .” (Ex. R.) Thus, Defendant was on notice of the offenses

charged, the victim’s name, and the date and location of the

crime. (Ex. R.) Finally, to the extent Defendant argues the

State violated his due process rights by requiring Defendant

to stand trial based on fraudulent perjured testimony, the

Court finds these are direct appeal issues. See Stallings, 319

So. 2d at 641 (“A motion to vacate and set aside judgment

and sentence is properly denied when the matters could

have been raised on direct appeal.”) (citation omitted). As

Defendant’s indictment was not fundamentally defective,

Defendant waived any challenges to the indictment by not

raising them at trial.

Resp. Ex. N.2 at 428-29. Petitioner appealed the trial court’s denial; however, he did

not brief this issue in his pro se appellate brief filed during the postconviction appeal.

Resp. Ex. O. As such, Respondents assert that this claim is unexhausted and

procedurally defaulted. Resp. at 71-72. Petitioner appears to acknowledge that this

claim is unexhausted, but he argues that the Court should excuse this procedural bar

pursuant to Martinez. Doc. 25 at 13-14.

To the extent that Petitioner claims that the state violated his due process

rights by allegedly obtaining perjured testimony from Russo to pursue charges against

Petitioner, he cannot rely on Martinez to overcome the procedural default of such

claim. Notably, Martinez only applies to procedurally barred claims of ineffective

assistance of trial counsel. See Gore, 720 F.3d at 816.

To the extent Petitioner relies on Martinez to overcome the procedural default

of his claim that trial counsel was ineffective for failing to challenge the Indictment,

the Court finds such claim insubstantial. To challenge an indictment in a federal

habeas proceeding, the charging document must be so defective that it deprives the

court of jurisdiction. See DeBenedictis v. Wainwright, 674 F.2d 841, 842 (11th Cir.

1982) (citations omitted) (“The sufficiency of a state indictment or information is not

properly the subject of federal habeas corpus relief unless the indictment or

information is so deficient that the convicting court is deprived of jurisdiction.”). The

Indictment set forth the charges and circumstance of the offense, and it was clearly

not “so deficient” that it deprived the trial court of jurisdiction. Resp. Ex. A.1 at 25-26.

Therefore, Petitioner cannot benefit from the Supreme Court’s holding in Martinez,

and he must satisfy Coleman’s cause and prejudice standard before he would be

entitled to federal habeas corpus relief. This Court finds Petitioner fails to

demonstrate cause and prejudice, and he fails to satisfy the fundamental miscarriage

of justice exception. As such, this Court finds the claim is procedurally defaulted. See

Coleman, 501 U.S. at 729-30. Ground Eight is due to be denied.

H. Ground Nine

Petitioner asserts that he “should not [have been] charged with carrying a

concealed firearm where state witness could only presume actually where the weapon

was and there [were] inconsistent statements.” Doc. 1 at 24. He claims that the only

evidence supporting this crime was Ellis’ testimony; however, the state “never

presented any testimony that the gun was anywhere other than the hand of”

Petitioner.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. N.1 at 17. The

trial court summarily denied this claim, finding in pertinent part:

In Ground Seven, Defendant claims he “should not be

charged with carrying a concealed firearm where state

witness could only presume where the weapon was and

there was inconsistent statements.” Defendant’s allegation

that the State did not have sufficient evidence to charge him

with carrying a concealed firearm could have been raised on

direct appeal and is therefore not proper in a motion for

postconviction relief. Childers v. State, 782 So. 2d 946, 947

(Fla. 4th DCA 2001) (“Appellant’s challenge to the

sufficiency of the evidence was an issue for direct appeal,

and therefore not cognizable under rule 3.850.”) (citations

omitted). As such, Defendant is not entitled to relief on this

claim.

Resp. Ex. N.2 at 430. Petitioner briefed this issued in his pro se appellate brief

appealing the trial court’s summary denial. Resp. Ex. O at 26. The First DCA per

curiam affirmed the trial court’s summary denial without a written opinion. Resp. Ex.

R.

Respondents contend that this claim is procedurally barred because the state

court declined to consider it based on an independent and adequate state procedural

ground. Resp. at 73-75. A procedural default may result from non-compliance with

state procedural requirements. See Coleman, 501 U.S. at 729-30. Federal courts are

barred from reaching the merits of a state prisoner’s federal habeas claim where the

petitioner has failed to comply with an independent and adequate state procedural

rule. Wainwright v. Sykes, 433 U.S. 72, 85-86 (1977). The procedurally correct way to

raise a claim challenging the sufficiency of the evidence in state court is by direct

appeal, and the procedural bar imposed in Petitioner’s case is firmly established and

regularly followed in the Florida courts. See Fla. R. Crim. P. 3.850(7); Betts v. State,

792 So. 2d 589, 590 (Fla. 1st DCA 2001) (“To the extent that the allegations challenged

the factual basis and sufficiency of the evidence, such claims cannot be raised in a Rule

3.850 motion, especially where (as occurred in the instant case) a direct appeal was

taken.”); Teffeteller v. State, 734 So. 2d 1009, 1016 (Fla. 1999) (holding substantive

claims procedurally barred because they could have been raised on direct appeal);

Smith v. State, 445 So. 2d 323, 325 (Fla. 1983) (“Issues which either were or could

have been litigated at trial and upon direct appeal are not cognizable through

collateral attack.”).

In his Reply, Petitioner recognizes this claim is unexhausted, but argues that

the Court should overlook this procedural bar because he was denied effective

postconviction counsel. Doc. 25 at 15 (citing Martinez, 566 U.S. at 9-10). However, as

previously indicated, Petitioner’s reliance on Martinez is misplaced as Martinez only

applies to overcome the procedural default of an ineffective assistance of trial counsel

claim. See Gore, 720 F.3d at 816. Therefore, Petitioner cannot benefit from the holding

in Martinez, and he must satisfy Coleman’s cause and prejudice standard before he

would be entitled to have this default excused.

This Court finds Petitioner fails to demonstrate cause and prejudice, nor has he

satisfied the fundamental miscarriage of justice exception. As such, this Court finds

the claim is procedurally defaulted. See Coleman, 501 U.S. at 729-30. In any event, as

described in the Court’s analysis of Ground Two, the Court finds there was sufficient

evidence to permit a rational trier of fact to find Petitioner guilty of carrying a

concealed firearm. As such, Ground Nine is due to be denied.

I. Ground Ten

Petitioner alleges that trial counsel was ineffective for advising Petitioner not

to testify at trial and for “not stating the comments [t]hat victim said coming

downstairs.” Doc. 1 at 27-31. Petitioner raised this claim in his Rule 3.850 motion.

Resp. Ex. N.1 at 19-21. The trial court conducted an evidentiary hearing on this claim.

Id. at 271. Thereafter, the trial court found the following:

In Ground Eight, Defendant alleges that counsel was

ineffective for advising Defendant not to testify because his

past criminal record would become known to the jury. At the

evidentiary hearing, Defendant testified that counsel

advised him not to testify at trial, because the jury would

hear the number of previous convictions and the facts and

circumstances surrounding the convictions. (Evidentiary

Hr’g Tr. at 9-10.) Defendant also stated that he decided not

[to] testify at trial because of that advice. (Id. at 10.)

Defendant also stated that if he had testified, he probably

would have had to admit that he shot the victim. (Id. at 20.)

Counsel testified that he has been practicing criminal

law for forty-four years. (Id. at 24.) Counsel stated that he

keeps current in his field about litigation strategies and

techniques in representing capital defendants through

attending seminars and part of his current duties at the

public defender’s office is to mentor and train and observe

attorneys who try homicide cases. (Id. at 26-27.) Counsel

stated that he has tried approximately 125 homicide cases

since 1969, of which approximately 40 were death penalty

cases. (Id. at 29.) Counsel explained that the State’s

evidence against Defendant was strong, so the focus of the

defense was on the penalty phase. (Id. at 41-45.)

Counsel testified that he advised Defendant that if he

testified the number of his prior felonies could be brought

before the jury. (Id. at 52.) Counsel further testified that

defendants can accidentally “open the door” to more

information on cross by presenting misleading testimony

about their prior convictions. (Id. at 48-49.) Counsel

testified that he never advised Defendant, that without

opening the door, the jury would learn the substance of his

convictions. (Id. at 53.) Counsel also opined that

Defendant’s testimony during the guilt phase of his trial

would have only harmed his case, because “[i]t would have

been [Defendant’s] testimony, opposed to seven

eyewitnesses, incriminating statements made by

[Defendant], the gun found that murdered this individual

found [sic] in his back pocket, and eyewitnesses all over that

complex, and as he was fleeing the scene, when he got as far

as seven blocks away.” (Id. at 57-58.) Moreover, Counsel

testified that Defendant was adamant that he was not going

to testify at trial. According to counsel, Defendant “made it

quite clear, you’re the attorneys, you carry the ball, I’m not

going to testify.” (Id. at 54.)

The Court finds counsel’s testimony that he did not

advise Defendant the jury would learn the nature of his

convictions if he testified at trial to be more credible than

Defendant’s testimony. See Moore v. State, 458 So. 2d 61,

61 (Fla. 3d DCA 1984) (during hearing on 3.850 motion trial

court may reject defendant’s testimony in favor of

conflicting testimony of counsel); Ballard v. State, 200 So.

2d 597, 598 (Fla. 3d DCA 1967) (trial court is entitled to

deny motion for postconviction relief based on trial counsel’s

testimony). According to counsel’s testimony, he advised

Defendant that the jury would not learn the nature of his

convictions as long as he testified truthfully about the

number of his convictions. In addition, the Court also finds

that Defendant has not established he would have testified

were it not for counsel’s alleged misadvice, as counsel

testified that Defendant was consistently unyielding in his

decision that he would not testify at trial. The Court finds

that counsel was not deficient, and, as such, Defendant is

not entitled to relief. See Stewart v. State, 801 So. 2d 59, 65

(Fla. 2001) (“[B]ecause the Strickland standard requires

establishment of both prongs, when a defendant fails to

make a showing as to one prong, it is not necessary to delve

into whether he has made a showing as to the other prong.”)

(citations omitted).

Resp. Ex. N.2 at 430-32. Petitioner appealed the trial court’s denial, see Resp. Ex. O,

and the First DCA per curiam affirmed the trial court’s denial without a written

opinion, see Resp. Ex. R. To the extent that the First DCA affirmed the trial court’s

denial on the merits, the Court will address the claim in accordance with the

deferential standard for federal court review of state court adjudications.

In his Rule 3.850 motion, Petitioner argued that his trial testimony was

necessary to support his self-defense theory. Resp. Ex. N.1 at 19. He claimed that he

would have testified that the victim was threatening to kill Petitioner and that he shot

the victim because the victim was running toward Petitioner. Id. However, at trial,

Petitioner advised the trial court that he did not wish to testify and that he had an

adequate opportunity to consider his decision. Resp. Ex. B at 641-42. Further, at the

evidentiary hearing, Mr. Till testified that Petitioner was adamant about not wanting

to testify at trial. Resp. Ex. N.1 at 370, 374. Trial counsel also explained that it would

not have been in Petitioner’s best interest to testify because Petitioner’s testimony

would have been “in direct conflict to the seven eyewitnesses” who saw or heard the

murder. Id. at 377-78. As such, trial counsel stated that in his opinion, Petitioner’s

trial testimony would have harmed trial counsel’s penalty phase strategy. Id. at 378.

The state court found trial counsel’s evidentiary hearing testimony credible. Petitioner

has failed to demonstrate that the state court’s rejection of this claim was contrary to

or an unreasonable application of Strickland, or an unreasonable determination of the

facts in light of the evidence adduced in state court. Ground Ten is due to be denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED and this case is DISMISSED WITH

PREJUDICE.

2. The Clerk of Court shall enter judgment accordingly, terminate any

pending motions, and close this case.

3. If Petitioner appeals this Order, 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.!!

DONE AND ORDERED at Jacksonville, Florida, this 27th day of January,

2020.

TIMOTHY J. CORRIGAN

United States District Judge

11 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, 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) (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)).

Here, after consideration of the record as a whole, the Court will deny a certificate of

appealability.

42

Jax-7

C: Steve Anderson, #097275

Anne Catherine Conley, Esquire