Blackmon v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JOVAN BLACKMON,

Petitioner,

v. Case No. 8:17-cv-121-T-35SPF

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________/

O R D E R

This cause comes before the Court on Jovan Blackmon’s timely-filed pro se

petition for the writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 4) Upon consideration

of the petition, the response (Doc. 16) and Blackmon’s reply (Doc. 17), and in accordance

with the Rules Governing Section 2254 Cases in the United States District Courts, the

Court ORDERS that the petition is DENIED:

PROCEDURAL HISTORY

Blackmon was convicted after a jury trial of first degree felony murder and

aggravated child abuse. (Doc. 16-7 Ex. 4) He was sentenced to concurrent terms of life

imprisonment for felony murder and 30 years in prison for aggravated child abuse. (Doc.

16-7 Ex. 5) The state appellate court per curiam affirmed Blackmon’s convictions and

sentences. (Doc. 16-7 Ex. 14) Blackmon’s first motion for postconviction relief under

Florida Rule of Criminal Procedure 3.850 was dismissed. (Doc. 16-7 Exs. 17, 18) The

state court denied Blackmon’s amended motion. (Doc. 16-8 Exs. 19, 20, 24) The state

appellate court per curiam affirmed the denial of postconviction relief. (Doc. 16-8 Ex. 29)

FACTUAL BACKGROUND; TRIAL TESTIMONY AND ARGUMENT1

I. Factual Background

Blackmon and his girlfriend Sonya Hannor had three children, including 10-month-

old Demetrius. On the morning of July 26, 2005, Blackmon, Hannor, and the three children

got into the family’s van. After dropping Hannor off at work, Blackmon and the children

went to the home of Blackmon’s sister, Chantrell Walker. Walker’s three children were

present. Walker’s friend Connetia White, along with White’s three children, were also at

the house. White was sick and napped on and off during the day.

After arriving, Blackmon went upstairs to play video games and left Demetrius

downstairs. Later in the morning, Blackmon left to go to an appointment. Demetrius

remained at the house. When Blackmon returned, he got something to eat downstairs,

but continued to spend most of the time upstairs. In the afternoon, Walker’s friend

Teramesha Brown came over to the house.

Over the course of the day, the children played in a room downstairs. Demetrius

was the youngest child, and the only child who was still crawling. The other children

ranged from approximately one to 10 years old. Walker, White, and Brown interacted with

Demetrius, and observed that he seemed happy, playful, and alert during the day. None

of them had reason to be concerned about Demetrius or saw Blackmon or anyone else

hit Demetrius. Connetia White testified, however, that at one point she saw Blackmon

holding a belt in his hand and standing over Demetrius. Believing that Blackmon was

about to hit Demetrius, White kicked Blackmon in the buttocks and told him to stop.

1 This summary is derived from the trial transcript and appellate briefs.

Blackmon was surprised; he stopped and asked who kicked him but was not angry with

White.

At approximately 3:00 p.m., Blackmon drove Connetia White on an errand. They

took Demetrius with them in the van. White recalled that Demetrius screamed when he

saw Blackmon inside the van. When White asked Blackmon why Demetrius screamed,

Blackmon responded that Demetrius just did not like him. Blackmon had made a similar

comment to Teramesha Brown about a week prior, stating that Demetrius did not like him

and he did not like Demetrius.

After the errand, they picked up Sonya Hannor from work and went back to

Blackmon and Hannor’s apartment so Hannor could get her laptop for her evening

classes. When Hannor got into the van, she observed Demetrius acting normally. When

they arrived at the apartment, White stayed in the van with Demetrius. After dropping

Hannor off at school, they returned to Walker’s house. Demetrius ate dinner and was

laughing and acting playful afterwards.

At about 9:00 p.m., Blackmon and his three children, along with White and her

three children, left to pick up Hannor at school. After they got Hannor, Blackmon dropped

off White and her children. Blackmon, Hannor, and their three children returned home,

where Hannor got the children ready for bed. Hannor fed Demetrius a bottle at

approximately 11:00 p.m. and put him down to sleep. Nothing about Demetrius’s

demeanor caused Hannor concern; he had been awake and made eye contact with her.

Hannor came to the living room, where Blackmon was located, and fell asleep

watching a movie. She remained asleep until Blackmon woke her up and told her that

Demetrius was not breathing. Demetrius had previously experienced instances of

difficulty breathing, including an event several days prior. Upon observing Demetrius

struggling to breathe and staring blankly Hannor “wondered if something else was going

on” and called 911. The 911 call was received at 12:15 a.m. on July 27, 2005.

Blackmon testified at trial that he fell asleep in the living room with Hannor, but that

he woke up 20 or 30 minutes later. He checked on the children and saw Demetrius having

trouble breathing. Blackmon picked up Demetrius, tried to console him, and tried to blow

some air into his mouth. But Demetrius was limp and “didn’t look right,” so Blackmon woke

Hannor.

After Hannor called 911, Demetrius was transported to a hospital. He was brain

dead and no treatment or possibility for recovery existed. Demetrius was taken off life

support on August 3, 2005.

II. Medical Testimony Presented At Trial

Dr. William Brooks was referred by the Department of Children and Families to

determine whether child abuse was involved in this case. He testified for the State as an

expert in the field of pediatrics as related to suspected child abuse cases. Dr. Brooks,

who first observed Demetrius on August 1, 2005, testified that Demetrius suffered severe

brain injuries and opined that the injuries were intentionally inflicted. Although Dr. Brooks

could not pinpoint exactly when the injuries occurred, he opined that Demetrius likely

received the injuries a short time before entering the hospital. Dr. Brooks believed that if

Demetrius was acting normally at around 11:00 p.m., Demetrius likely did not receive the

injuries prior to that time.

On cross-examination, Dr. Brooks testified concerning a report prepared by Dr.

Nancy Rogers-Neame, a neurologist, which concluded that Demetrius’s injuries could

have occurred from six to 24 hours prior to his admission to the hospital.2 When asked

about Dr. Rogers-Neame’s report, Dr. Brooks stated that he did not disagree with the

range she provided and that it was possible Demetrius could have been injured within six

hours prior to admission to the hospital. But Dr. Brooks thought it was unlikely the injuries

were suffered up to 24 hours prior to admission to the hospital. Dr. Brooks further

conceded that based on this type of injury, a child would not necessarily be rendered

unconscious immediately. Dr. Brooks acknowledged that the head injuries were not

detected the first time the CAT scan and MRI were examined.

Dr. Leszek Chrostowski, the associate medical examiner who conducted

Demetrius’s autopsy, testified for the prosecution as an expert in the field of forensic

pathology. Dr. Chrostowski opined that Demetrius died due to cranial cerebral trauma

and that the manner of death was homicide. Dr. Chrostowski observed multiple impact

points where Demetrius suffered traumatic injury, and opined that the injuries were

consistent with blunt force trauma. Dr. Chrostowski testified that the injuries were not

consistent with normal activity. He believed that a child under the age of one year who

suffered such injuries likely would have been rendered unconscious almost immediately.

However, Dr. Chrostowski did not disagree with Dr. Rogers-Neame’s conclusion that the

injuries could have been sustained between six and 24 hours prior to hospitalization.

Dr. Mariano Fiallos, a prosecution witness, was a pediatric hospital and intensive

care physician who first saw Demetrius on July 27, 2005. Dr. Fiallos testified consistently

with Dr. Brooks that the brain injuries were not observed during the first review of the CAT

scan and MRI. However, Dr. Fiallos explained, another radiologist looked at the scans

2 Dr. Rogers-Neame did not testify at trial.

and observed subdural bleeding, hemorrhages in the brain, and retinal hemorrhages and

detachment. Dr. Fiallos testified that the circumstances were “highly suspicious of

nonaccidental injury.” Dr. Fiallos agreed with Dr. Rogers-Neame’s time range for when

the injuries might have occurred. Dr. Fiallos further testified that it was possible the injuries

could have occurred in the afternoon but that Demetrius did not begin to exhibit signs or

symptoms until much later. He clarified, however, that it was also possible the injuries

occurred much closer in time to Demetrius’s admission to the hospital.

Blackmon called Dr. Ronald Uscinski, who testified as an expert in the area of

neurosurgery. Dr. Uscinski found no “hard evidence” of any direct trauma to the brain. He

testified that the injuries could be consistent with blunt trauma to the head, but that it was

not necessarily a major trauma. Dr. Uscinski opined that the injuries were consistent with

trauma that can be accidental, and that injuries of this nature may appear insignificant at

first but become more serious over time and manifest hours later in a dramatic way. He

explained that even a seemingly trivial injury to the head can later lead to seizure activity,

which in turn may cause a person to stop breathing and suffer oxygen deprivation in the

brain. Dr. Uscinski testified that the scans showed Demetrius’s brain had been deprived

of oxygen. When asked about Dr. Rogers-Neame’s report, Dr. Uscinski opined that her

24-hour timeframe was consistent with the with injuries and, further, that he would extend

that timeframe to 36 to 48 hours.

III. The Parties’ Theories And Argument

The State theorized that Blackmon caused Demetrius’s injuries at night, when

Hannor was asleep in the living room and Blackmon had the opportunity to be alone with

Demetrius. Blackmon theorized that the injuries occurred during the day when Demetrius

was with the other caregivers and children. Defense counsel asserted in her opening

statement (Doc. 16-3 Ex. 3 Vol. 3 at 285-86, 293):

This case boils down to an equation. Time of injury plus multiple caregivers

equals this man is not guilty. Time of injury. [The prosecutor] has already

told you about the range. The State’s own doctors will tell that the injury

could have occurred anywhere between six hours before the child was

admitted to the hospital and as much as 24 hours before the child was

admitted to the hospital, that is the range. Time of injury.

The State has already told you that this child during the course of a 24-hour

period had multiple caregivers. Three adult women who were also caring

for six other children including this baby. Later on the mother. So this case

is going to boil down to that[ ] equation. Time of injury, the range of injury,

plus multiple caregivers means Mr. Blackmon is not guilty.

. . .

We know the symptoms. We don’t know when the injury occurred. That’s

for you, the jury, to decide. Because if you know the when, then you may

know the who. And with this many caregivers over this long a period of time,

that’s the question you have to decide in this case. This case boils down to

that equation. Time of injury plus multiple caregivers means Mr. Blackmon

is not guilty.

In closing argument, counsel highlighted the evidence that the injuries could have

been suffered in the 24 to 36 hours prior to arrival at the hospital and that the injuries

could have initially appeared minor. Counsel asserted that the injuries could have

occurred during a “range [of time that] is so large it’s impossible to tell at what point this

could have occurred and who the child was with when it occurred. And the fact that it

could have been an accidental injury, a minor injury that went unnoticed and then

blossomed into something more serious.” (Doc. 16-6 Ex. 3 Vol. 7 at 994) Counsel argued

about the circumstances in the house (Doc. 16-6 Ex. 3 Vol. 7 at 991):

[T]hat injury could have occurred while he was being cared for by his aunt

and her two friends and playing with those eight children in that small living

room. You know, he said well, his couldn’t happen in regular child play.[3]

3 It appears counsel was referring to Dr. Chrostowski’s testimony that the injuries were not consistent with

normal activity.

But you know what, the scene that they painted was a daycare center gone

bad. You got eight kids in a small living room from ages ten to two bouncing

around a baby who’s crawling on the floor. One woman’s sick and sleeping

on the couch the other two were in and out. They don’t know what happened

to that baby. And it’s entirely consistent with what the defense expert and

other experts have said is that Dr. Fiallos, their expert, it could have been

the type of injury that starts small; you wouldn’t even notice it. That’s why

they missed it at the hospital.

Counsel argued that Blackmon had presented a reasonable hypothesis of

innocence that the injuries were accidental (Doc. 16-6 Ex. 3 Vol. 7 at 1001):

A reasonable hypothesis of innocence is accident. The reasonable

hypothesis of innocence is that because the time frame is so wide, we don’t

even know who or when or where it happened. We know it happened. We’re

not disputing that this baby got hurt. What we’re disputing is how the injury

occurred. We presented a reasonable hypothesis to how this injury could

have occurred and that hypothesis is accident. That hypothesis is one of

innocence. And the law is very clear that if we present a reasonable

hypothesis of innocence, you must, not you may, you must find Mr.

Blackmon not guilty.

STANDARD OF REVIEW

I. AEDPA

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this

proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief

can only be granted if a petitioner is in custody “in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that federal

habeas relief cannot be granted on a claim adjudicated on the merits in state court unless

the state court’s adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.

A decision is “contrary to” clearly established federal law “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.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A

decision involves an “unreasonable application” of clearly established federal law “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.

AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that state-

court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.

685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s application

of clearly established federal law is objectively unreasonable, and . . . an unreasonable

application is different from an incorrect one.” Id. at 694; see also Harrington v. Richter,

562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal court,

a state prisoner must show that the state court’s ruling on the claim being presented in

federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.”).

The state appellate court affirmed the denial of postconviction relief without

discussion. This decision warrants deference under § 2254(d)(1) because “the summary

nature of a state court’s decision does not lessen the deference that it is due.” Wright v.

Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). When a state appellate court issues a silent

affirmance, “the federal court should ‘look through’ the unexplained decision to the last

related state-court decision that does provide a relevant rationale” and “presume that the

unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S.Ct. 1188,

1192 (2018).

II. Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are analyzed under the test established in

Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient

performance by counsel and resulting prejudice. Id. at 687. Deficient performance is

established if, “in light of all the circumstances, the identified acts or omissions [of counsel]

were outside the wide range of professionally competent assistance.” Id. at 690. However,

“counsel is strongly presumed to have rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id.

Blackmon must show that counsel’s alleged error prejudiced the defense because

“[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside

the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at

691. To demonstrate prejudice, Blackmon must show “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.

Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal

habeas review because “[t]he standards created by Strickland and § 2254(d) are both

highly deferential, and when the two apply in tandem, review is doubly so.” Richter, 562

U.S. at 105 (internal quotation marks and citations omitted); see also Burt v. Titlow, 571

U.S. 12, 15 (2013) (stating that this doubly deferential standard of review “gives both the

state court and the defense attorney the benefit of the doubt.”). “The question [on federal

habeas review of an ineffective assistance claim] ‘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) (quoting Schriro v. Landrigan, 550 U.S. 465, 473

(2007)).

EXHAUSTION OF STATE REMEDIES

A federal habeas petitioner must exhaust his claims by raising them in state court

before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel,

526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity

to act on his claims before he presents those claims to a federal court in a habeas

petition.”). The exhaustion requirement is satisfied if the petitioner fairly presents his claim

in each appropriate state court and alerts that court to the federal nature of the claim.

Picard v. Connor, 404 U.S. 270, 275-76 (1971). The doctrine of procedural default

provides that “[i]f the petitioner has failed to exhaust state remedies that are no longer

available, that failure is a procedural default which will bar federal habeas relief, unless

either the cause and prejudice or the fundamental miscarriage of justice exception is

established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).

DISCUSSION

I. Ground One

A. Introduction

As addressed, counsel argued that a third party was responsible for accidentally

inflicting Demetrius’s injuries. Blackmon contends that trial counsel was ineffective in

failing to develop a defense of excusable homicide based on the theory that Demetrius

was accidentally injured while Blackmon played and wrestled with him but that Blackmon

did not realize the severity of Demetrius’s injuries at the time. Blackmon claims that he

“acknowledged being with the child during the time period alleged by the State, and

wrestling with the child, but denied culpability in the child’s death.” (Doc. 4 at 5) Blackmon

argues (Doc. 4 at 6):

Petitioner contends trial counsel rendered ineffective assistance in her

failure to develop and establish evidence supporting an excusable homicide

defense, which was consistent with her opening and closing arguments at

trial, as even acknowledged by the trial court. Counsel however failed to

advance any argument that the child’s death could have occurred as a result

of Petitioner’s play with the child, and that Petitioner may have not known

that the child was injured; argument that would have supported excusable

homicide defense. Counsel failed to elicit or establish any evidence

supporting such theory, which was not only viable, but consistent with the

facts of Petitioner’s case.

Had trial counsel advanced such argument, or established evidence that

the child’s death may have resulted from Petitioner’s innocent wrestling and

play with the child, and that Petitioner was unaware that the child was

injured during such play, a reasonable probability exists the jury may have

found the excusable homicide viable, and returned a verdict of not guilty on

the first-degree murder charge. Counsel’s failure to therefore establish such

evidence denied Petitioner constitutionally effective assistance of counsel

as guaranteed by the Sixth Amendment to the United States Constitution.

In the response, Respondent identifies Blackmon’s claim. (Doc. 16 at 4-5)

Respondent concedes that Blackmon presented the claim in his Rule 3.850 proceedings

and that the claim is therefore exhausted for federal habeas review. (Doc. 16 at 5)

However, the specific claim Blackmon raises in his federal habeas petition is

distinguishable from the claim he raised in his Rule 3.850 motion. Blackmon’s Rule 3.850

motion raised a generalized claim that counsel was ineffective in not developing an

excusable homicide defense. But Blackmon did not specifically state in the Rule 3.850

motion, or during the evidentiary hearing on the motion, that counsel should have argued

Demetrius’s injuries were accidentally sustained when Blackmon played and wrestled

with Demetrius. (Doc. 16-8 Ex. 19 at 11-16, Doc. 16-8 Ex. 23 at 13-17)

Thus, the claim of ineffective assistance presented in Blackmon’s federal habeas

petition is unexhausted. See Weeks v. Jones, 26 F.3d 1030, 1044-46 (11th Cir. 1994)

(rejecting petitioner’s argument that “the general claim of ineffective assistance in state

court preserves for federal review all alleged instances of ineffectiveness, regardless of

whether evidence of a particular act was presented to the state court.”); Footman v.

Singletary, 978 F.2d 1207, 1211 (11th Cir. 1992) (“[A] habeas petitioner may not present

instances of ineffective assistance of counsel in his federal petition that the state court

has not evaluated previously.”).

Nevertheless, the Court notes that in presenting his ineffective assistance claim in

his federal habeas petition, Blackmon states that he exhausted the claim in state court.

(Doc. 4 at 7) The Court therefore interprets Blackmon’s overall claim that trial counsel

was ineffective in failing to develop a defense of excusable homicide as raising the same

claim that he raised in his Rule 3.850 motion and will review that claim under AEDPA’s

deferential standard. In considering Blackmon’s new, unexhausted claim, however, the

Court must accept Respondent’s concession as a waiver of the exhaustion requirement.

See 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion

requirement or be estopped from reliance upon the requirement unless the State, through

counsel, expressly waives the requirement.”). Given Respondent’s waiver of the

exhaustion requirement, Blackmon’s unexhausted claim is subject to de novo review. Cf.

Davis v. Sec’y, Dep’t of Corr., 341 F.3d 1310, 1313 (11th Cir. 2003) (de novo review is

appropriate when the state courts fail to resolve the merits of a federal habeas petitioner’s

claim that was presented to the state courts).

B. Exhausted Ineffective Assistance Claim

Blackmon alleged in his Rule 3.850 motion that counsel was ineffective in “fail[ing]

to develop and build a defensive theory upon excusable homicide.” (Doc. 16-8 Ex. 19 at

11) (emphasis in original)4 In support, he claimed that his attorneys knew that the identity

of the person responsible for Demetrius’s death was at issue; that undisputed evidence

established multiple caregivers watched Demetrius during the 24-hour window when his

injuries could have been sustained; and that Blackmon’s “theory of innocence” was that

the injuries were accidental or were caused by another person. (Doc. 16-8 Ex. 19 at 13)

The state court denied Blackmon’s claim after an evidentiary hearing (Doc. 16-8 Ex. 24

at 3-6) (court’s record citations omitted):

In claim two, Defendant alleges that trial counsel was ineffective for failing

to develop and build a defensive theory upon excusable homicide.

Specifically, Defendant alleges that his attorneys were aware that one of

the theories of defense was that the injury was the result of an accident.

Defendant further alleges that counsel knew that identity, timing, and the

fact that there were multiple caregivers for the child were issues in his case

and supported Defendant’s theory of innocence. Defendant cites to the trial

transcript to show that counsel did not want an excusable homicide

instruction given. It is Defendant’s contention that the failure of trial counsel

severely prejudiced the outcome of his trial and appellate proceedings.

After reviewing the allegations, the court file, the testimony, and the record,

the Court finds that Defendant has failed to demonstrate deficient

4 The instruction on excusable homicide read to Blackmon’s jury provided (Doc. 16-6 Ex. 3 Vol. 7 at 1025-

26):

The killing of a human being is excusable and therefore lawful under any one of the

following three circumstances: One, when the killing is committed by accident and

misfortune and in doing any lawful act by lawful means with usual, ordinary caution and

without any unlawful intent; or, two, when the killing occurs by accident and misfortune in

the heat of passion upon any sudden and sufficient provocation; or, three, when the killing

is committed by accident and misfortune resulting from a sudden combat if a dangerous

weapon is not used and the killing is not done in a cruel or unusual manner.

performance. To gain post-conviction relief based on a claim of ineffective

assistance of counsel, a defendant must show that counsel’s performance

was deficient and that this deficient performance prejudiced the defense.

Strickland, 466 U.S. at 687.

At the evidentiary hearing, Defendant’s trial counsel . . . first testified that

the instruction for excusable homicide was ultimately given at trial.

[Counsel] further testified that “if you look at [the] opening statement, from

the opening statement, [the] theory was time and timeframe for the injury,

multiple caregivers, [which would] mean [Defendant was] not guilty.”

[Counsel] went on to testify that she elicited from the State’s experts that

the time frame could have been anywhere from four to twenty-four hours

and that the child was with eight other children and cared for by three other

adults while Defendant was playing video games. [Counsel] testified that

she also called a defense expert who expanded the timeframe and testified

that the injury was of the type that could appear to be insignificant at first,

but over the course of time progress into something that would be life-

threatening.

[Counsel] also testified regarding the testimony Defendant gave at trial, in

which he stated that he was not “blaming anyone” and was not “pointing the

finger at anyone.” [Counsel] testified that “nonetheless, that was still the

heart of [her] defense and [she] made the argument in JOA, because [she]

asked for a circumstantial evidence instruction and mere presence

instruction.” Additionally, [counsel] testified that she talked to Defendant

“constantly” about this theory, so she was surprised during cross-

examination when Defendant said he was not pointing the finger at anyone.

On cross-examination, [counsel] testified that there was no evidence to

show that Defendant was the “actor” in any of the three situations that are

covered by the excusable homicide instruction. [Counsel] testified that was

why her theory was to argue that “it would have been a third party [and]

that’s why [counsel] developed the fact that the child was playing with other

children, at least eight other children all day, in a small room.”

Defendant testified that counsel did inform him of the theory of defense, but

he “never really paid attention” and did not understand how it related to the

accidental portion of the theory.

After reviewing the allegations, the court file, the testimony, and the record,

the Court finds trial counsel[’s] testimony to be more credible than that of

Defendant. Here, the record demonstrates that [counsel] reviewed the

theory of defense with Defendant “constantly.” This is supported by

[counsel’s] testimony that she was surprised when Defendant testified at

trial that he was not pointing the finger at anyone, since they had discussed

that the theory was based on a third party being at fault. Further, the record

reflects that the instruction for excusable homicide was given at Defendant’s

trial.

The Court finds Defendant has failed to establish that his trial counsel’s

performance was ineffective. Moreover, the Court finds that trial counsel

employed reasonable trial strategy in electing to argue that a third party was

responsible for the injury to the child and that this theory was thoroughly

discussed with Defendant.

As previously discussed, there is a strong presumption that trial counsel’s

performance was not ineffective. See Strickland, 466 U.S. at 690. The

defendant carries the burden to “overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial

strategy.’” Id. (quoting Michel v. State of LA, 350 U.S. 91, 101 (1955)).

Further, “strategic decisions do not constitute ineffective assistance of

counsel if alternative courses have been considered and rejected and

counsel’s decision was reasonable under the norms of professional

conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000). As such,

it cannot be said that [counsel] performed below an objective standard of

reasonableness or that trial counsel’s performance was unreasonable

under professional norms. Therefore, no relief is warranted.

Blackmon has not shown that the state court unreasonably denied his claim. The

state court’s findings that counsel’s testimony was more credible than that of Blackmon

and that counsel made a strategic decision in choosing which defense to present are

findings of fact. See Rolling v. Crosby, 438 F.3d 1296, 1301 (11th Cir. 2006) (stating that

a state court’s credibility finding is a factual finding); DeBruce v. Comm’r, Ala. Dep’t of

Corr., 758 F.3d 1263, 1273 (11th Cir. 2014) (stating that a question “regarding whether

an attorney’s decision is ‘strategic’ or ‘tactical’ is a question of fact[.]”). These findings of

fact are presumed correct, and Blackmon must present clear and convincing evidence in

order to rebut the presumption. See 28 U.S.C. § 2254(e)(1) (providing that in a § 2254

proceeding, “a determination of a factual issue made by a State court shall be presumed

to be correct. The applicant shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.”).

Blackmon has not presented clear and convincing evidence to rebut the

presumption of correctness afforded to the state court’s factual findings. Nor does

Blackmon show that counsel’s strategic decision was unreasonable. An attorney’s

strategic choice will only constitute ineffective assistance if it was patently unreasonable.

See Dingle v. Sec’y for Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007) (stating that

a strategic choice “will he held to have been ineffective assistance only if it was ‘so

patently unreasonable that no competent attorney would have chosen it.’” (quoting Adams

v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983))).

At the evidentiary hearing, counsel explained the development and presentation

of the defense. The state court’s order accurately reflects counsel’s evidentiary hearing

testimony concerning the evidence she adduced at trial, the defense she presented, and

her discussion of the defense with Blackmon. The testimony that the state court found

credible indicates counsel chose to argue that Demetrius’s injuries were accidentally

caused by a third party in light of evidence that other adults and children were around

Demetrius during the day; that the injuries could have been inflicted during the course of

the day but may have at first appeared insignificant; and that there was no evidence that

Blackmon, who spent much of the time upstairs playing video games, was the actor who

caused the injuries. (Doc. 16-8 Ex. 23 at 6-10) Under these circumstances, Blackmon

fails to show that counsel’s choice in presenting the defense that a third party caused

Demetrius’s injuries was so patently unreasonable as to constitute ineffective assistance.

Additionally, the presentation of an excusable homicide defense would have significantly

conflicted with the principal defense theory, strategically chosen by counsel, that the

injuries were most likely caused by a third party who had more significant physical

interaction with Demetrius during the day.

Blackmon has not established that the state court’s denial of his claim involved an

unreasonable application of Strickland or was based on an unreasonable factual

determination. He is not entitled to relief.

C. Unexhausted Ineffective Assistance Claim

Blackmon argues that counsel was ineffective in not presenting the defense that

Demetrius’s injuries were caused when Blackmon played and wrestled with Demetrius

but that Blackmon did not realize the severity of the injuries at the time. Blackmon

contends that he told counsel that “he played with Demetrius” but did not intend to kill

Demetrius. (Doc. 17 at 5) This claim is afforded de novo review.

Blackmon is not entitled to relief because he has not established either prong of

Strickland. “Even under de novo review, the standard for judging counsel’s representation

is a most deferential one. Unlike a later reviewing court, the attorney observed the

relevant proceedings, knew of materials outside the record, and interacted with the client,

with opposing counsel, and with the judge.” Richter, 562 U.S. at 105. Rogers v. Zant, 13

F.3d 384, 386 (11th Cir. 1994), further explains the high standard facing a petitioner who

alleges ineffective assistance:

When reviewing whether an attorney is ineffective, courts “should always

presume strongly that counsel’s performance was reasonable and

adequate.” Atkins v. Singletary, 965 F.2d 952, 958 (11th Cir. 1992). And, “a

court should be highly deferential to those choices . . . that are arguably

dictated by a reasonable trial strategy.” Devier v. Zant, 3 F.3d 1445, 1450

(11th Cir. 1993).

Even if many reasonable lawyers would not have done as defense counsel

did at trial, no relief can be granted on ineffectiveness grounds unless it is

shown that no reasonable lawyer, in the circumstances, would have done

so. This burden, which is petitioner’s to bear, is and is supposed to be a

heavy one. And, “[w]e are not interested in grading lawyers’ performances;

we are interested in whether the adversarial process at trial . . . worked

adequately.” See White v. Singletary, 972 F.2d 1218, 1221 (11th Cir. 1992).

Blackmon fails to show that his trial counsel performed deficiently in not presenting

the defense Blackmon now proposes. Blackmon’s vague and conclusory argument lacks

supporting factual allegations. He does not describe when or in what manner he played

and wrestled with Demetris. Nor does Blackmon assert how Demetrius sustained his

injuries. Blackmon’s own expert witness, Dr. Uscinski, testified that Demetrius’s head was

impacted in at least one place and possibly in multiple places. (Doc. 16-5 Ex. 3 Vol. 6 at

805-06) Blackmon’s claim lacks any factual allegations explaining how an impact to

Demetrius’s head—even an accidental impact—occurred during the alleged playing and

wrestling. See Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (stating that a federal court

cannot grant habeas relief “on the basis of little more than speculation with slight

support.”); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (a petitioner’s vague

and conclusory statements, unsupported by specific facts, cannot sustain an ineffective

assistance claim).

Further, the record does not corroborate Blackmon’s theory. Blackmon

characterizes the relevant period as the time when Demetrius was in the room with other

children. (Doc. 4 at 5) However, multiple witnesses testified consistently with one another

that Blackmon spent little time interacting with Demetrius during the day. Chantrell Walker

testified that Blackmon played video games in an upstairs bedroom. (Doc. 16-3 Ex. 3 Vol.

3 at 307) Walker stated that Demetrius was never upstairs with Blackmon, that Blackmon

did not take care of Demetrius, and that she did not believe Blackmon was alone with

Demetrius at her house. (Doc. 16-3 Ex. 3 Vol. 3 at 322, 324, 327) Teramesha Brown

testified that she never saw Blackmon interact with Demetrius, that Blackmon was not

watching Demetrius, and that Blackmon stayed upstairs playing video games most of the

time. (Doc. 16-3 Ex. 3 Vol. 3 at 440-42) Connetia White similarly testified that Blackmon

spent most of the time upstairs playing video games. (Doc. 16-4 Ex. 3 Vol. 4 at 455, 477)

Contrary to Blackmon’s assertion in his federal habeas petition, these witnesses did not

testify that they saw Blackmon playing with Demetrius.

Furthermore, Blackmon’s own trial testimony offers no support for his new theory.

Blackmon testified that he played video games upstairs and that, as far as he was

concerned, the other adults were taking care of his children downstairs. (Doc. 16-5 Ex. 3

Vol. 6 at 868-711) Although Blackmon stated that he went downstairs to “eat and play

and talk with everybody,” he agreed that he spent most of the time upstairs. (Doc. 16-5

Ex. 3 Vol. 6 at 876-77, 902) Blackmon specifically mentioned playing with Demetrius only

when addressing Connetia White’s testimony that she saw him holding a belt and

standing over Demetrius. Blackmon initially testified (Doc. 16-5 Ex. 3 Vol. 6 at 877-78):

Q. Okay. You heard Ms. Walden[5] testify yesterday about you holding a

child’s belt over the baby. Do you remember that?

A. Yes, ma’am.

Q. Okay. Tell me about that.

A. Well I came - -

Q. Were you spanking the baby?

A. No, ma’am.

Q. Tell me what was happening.

A. Okay. When I came downstairs, I went to play with the baby. I had the

belt over like him [sic] I was going it [sic] spank him.

5 Connetia White had also used the last name Walden. (Doc. 16-4 Ex. 3 Vol. 4 at 474)

Q. Was this an adult belt or - -

A. No, it was a little children’s belt.

Q. Did the baby cry?

A. No, ma’am.

Q. Okay. Did you touch the baby with it?

A. No, ma’am.

Q. Okay. So you - - you were playing with the baby?

A. Yes, ma’am.

Q. Okay. So at any time before that or after that, did the baby cry?

A. No, ma’am.

Q. Okay. Now, Ms. Walden said she actually kicked you?

A. Um-hmm.

Q. Did that make you angry?

A. No she was playing.

Q. Okay. So you didn’t get upset?

A. No.

Later in his testimony, Blackmon testified that he did things like “playing” with

Demetrius with the belt and making comments that Demetrius did not like him in order to

aggravate Chantrell Walker and Connetia White (Doc. 16-5 Ex. 3 Vol. 6 at 882-83):

Q. Okay. So what did you mean by that [the comment to the effect of the

baby did not like him and he did not like the baby]? Did you mean you didn’t

like your baby?

A. I said things that I know they’ll get mad at me. Like when I was playing

with the baby with a belt, I know it’s going to aggravate my sister and them

playing with him like that.

Q. Okay.

A. You know. So I did stuff like to aggravate them because I know they’re

going to say something to me.

Q. So you were doing this in jest to aggravate them?

A. Yes, playing. Not to - - the baby has nothing to do with it. I’m playing, but

it’s messing with them because they going to mess with me. You know what

I’m saying? Because I’m messing with the baby, I know they’re going to

mess with me. It’s playing. That’s it.

On cross-examination, Blackmon maintained that he was playing with Demetrius

when he held the belt over the baby (Doc. 16-5 Ex. 3 Vol. 6 at 907-08):

Q. Now, I want to talk about the incident with the belt. Okay? Specifically,

you agree that Ms. - - Ms. Walden White saw you with the belt; and you - -

it looked as if you were going to strike the baby with the belt, correct?

A. Striking to hurt my child? Or which way did you put it?

Q. Well, it like you ready [sic] to hit the child. It looked like you were going

to hit the child with the belt.

A. I was playing with the child.

Q. Okay. And you would agree, though, that it looked like you were going

to hit the child with the belt?

A. I had a belt in my hand. I was playing with my child.

Q. And you had your hands in a manner and in a position?

A. Yes, sir. I had my hands up in a manner.

Q. As if you were going to strike the child with the belt?

A. But I wasn’t fixing to strike my child.

Q. Okay. And you mentioned that when she kicked you, you didn’t get upset,

correct?

A. (Witness shakes head.) No, sir.

Q. Okay. But she got upset, correct?

A. Yeah.

Q. And she explained to you why she was upset?

A. Yeah. But her upset - -

Q. Like she testified yesterday?

A. Excuse me. Her upsetness wasn’t like she was going to call the police,

take me outside and beat me. She was like, you know, and you know,

upsetness where you have a dog-out fight. It wasn’t - - I don’t want it to get

taken out of context because it wasn’t - - at that time, it wasn’t like that.

Q. You don’t want me to misquote you, correct?

A. However you want to put it. I just don’t want it to be taken out of context

because we was both playing, you know. I played with them all my life. We

played.

Q. And so you think she was playing with you, correct?

A. If you want to say I think, we can go with that, too. At that time, we was

playing. All of us was playing.

No part of this testimony supports Blackmon’s assertion that he could have

accidentally caused Demetrius’s injuries by wrestling and playing with Demetrius.

Blackmon was only seen standing over Demetrius, and his testimony contained no

explanation or suggestion of how Demetrius’s injuries could have occurred. Blackmon’s

vague and conclusory claim that counsel should have presented an argument devoid of

factual or record support is insufficient to establish deficient performance. See Tejada,

941 F.2d at 1559. In addition, Blackmon has not met his burden to show a reasonable

probability of a different outcome had counsel argued a generalized theory, unsupported

by any specific facts and inconsistent with significant portions of the evidence, that

Blackmon accidentally inflicted the injuries while playing or wrestling with Demetrius.

Accordingly, Blackmon has not met his burden to establish deficient performance and

resulting prejudice under Strickland. As Blackmon therefore fails to establish ineffective

assistance of trial counsel, he is not entitled to relief on Ground One.

II. Blackmon’s Reply

In Blackmon’s reply, he contends that his postconviction counsel was ineffective.

Blackmon also raises new claims of ineffective assistance of trial counsel that he did not

raise in his habeas petition. He claims that trial counsel was ineffective in misadvising him

not to take a plea, misadvising him that he would not receive a life sentence, and failing

to investigate “all the children or adults.” (Doc. 17 at 2) Blackmon may not bring new

claims in his reply. See Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir.

2005) (“[A]rguments raised for the first time in a reply brief are not properly before a

reviewing court.”) (citation omitted); see also Timson v. Sampson, 518 F.3d 870, 874

(11th Cir. 2008) (stating that a court will “not address arguments raised for the first time

in a pro se litigant’s reply brief.”).

Further, a claim of ineffective assistance of postconviction counsel is not a

cognizable claim for federal habeas relief because there is no federal constitutional right

to postconviction counsel. See Lambrix v. Sec’y, Fla. Dep’t of Corr., 756 F.3d 1246, 1263

(11th Cir. 2014) (recognizing that “[l]ongstanding U.S. Supreme Court precedent holds

that a habeas petitioner cannot assert a viable, freestanding claim for the denial of the

effective assistance of state collateral counsel in post-conviction proceedings.”); Chavez

v. Sec’y, Fla. Dep’t of Corr., 742 F.3d 940, 944 (11th Cir. 2014) (stating that since there

is no constitutional right to postconviction counsel, there is no viable, freestanding claim

for the denial of effective assistance in postconviction proceedings).

Blackmon’s ineffective assistance of trial counsel claims raised in the reply are

unexhausted because Blackmon did not present them in his Rule 3.850 motion. (Doc. 16-

8 Ex. 19) Blackmon would be time-barred from raising them in another Rule 3.850 motion.

See Fla. R. Crim. P. 3.850(b). Accordingly, the claims are procedurally defaulted, and

Blackmon makes no argument showing that an exception applies to excuse the default.

See Smith, 256 F.3d at 1138. The claims in Blackmon’s reply do not warrant federal

habeas relief.

Accordingly, Blackmon’s petition for the writ of habeas corpus (Doc. 4) is DENIED.

The CLERK is directed to enter a judgment against Blackmon and to CLOSE this case.

CERTIFICATE OF APPEALABILITY

AND

LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

IT IS FURTHER ORDERED that Blackmon is not entitled to a certificate of

appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to

appeal a district court’s denial of his petition. 28 U.S. § 2253(c)(1). Rather, a court must

first issue a certificate of appealability. Section 2253(c)(2) limits the issuing of a certificate

of appealability “only if the applicant has made a substantial showing of the denial of a

constitutional right.” To merit a certificate of appealability, Blackmon must show that

reasonable jurists would find debatable both the merits of the underlying claims and the

procedural issues. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000);

Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Because he fails to make this

showing, Blackmon is not entitled to a certificate of appealability. Therefore, he is not

entitled to appeal in forma pauperis.

Accordingly, a certificate of appealability is DENIED. Leave to proceed in forma

pauperis on appeal is DENIED. Blackmon must obtain permission from the circuit court

to appeal in forma pauperis.

DONE AND ORDERED in Tampa, Florida, on this 25th day of February, 2020.

hg ft f)

SI KAS

MARYS. SCRIVEN

UNITED STATES DISTRICT JUDGE

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