# Blackmon v. Secretary, Department of Corrections

> District Court, M.D. Florida · February 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10104580

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10104580

## How later opinions describe it (automated extraction)

- stating that this doubly deferential standard of review “gives both the state court and the defense attorney the benefit of the doubt.”
- stating that a court will “not address arguments raised for the first time in a pro se litigant’s reply brief.”
- stating that a state court’s credibility finding is a factual finding

## Opinion text

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

26

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104580. Public record. Not legal advice.