Opinion

Montgomery v. Secretary, Department of Corrections

Court: District Court, M.D. Florida
Filed: Apr 10, 2020
Cited by: 0 cases
Authority: More cited than 19.7%

allowing for a summary denial -rather than providing rationale- of a Rule 3.850 motion by incorporating a response from the state as long as the state has provided the necessary record documents

How later courts described this case

allowing for a summary denial -rather than providing rationale- of a Rule 3.850 motion by incorporating a response from the state as long as the state has provided the necessary record documents
holding that where a challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs where a jury instruction is so flawed as to deprive defendants claiming the defense of a fair trial
reviewing court may begin with either component
opining a petitioner bears the burden of establishing the need for an evidentiary hearing with more than speculative and inconcrete claims of need

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

STEVEN WILLIE MONTGOMERY,

Petitioner,

vs. Case No. 3:18-cv-227-J-39PDB

SECRETARY, DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

ORDER

I. INTRODUCTION

Petitioner, Steven Willie Montgomery, proceeding pro se,

challenges his state court (Duval County) conviction for second

degree murder with a weapon. In his Petition Under 28 U.S.C. §

2254 for Writ of Habeas Corpus By a Person in State Custody

(Petition) (Doc. 1), he raises fourteen grounds. Respondents

filed an Answer to Petition for Writ of Habeas Corpus (Response)

(Doc. 16).1 Petitioner filed a Reply to Respondents’ Response

(Doc. 23).2 See Order (Doc. 5).

1 The Court will hereinafter refer to the Exhibits (Doc. 16) as

"Ex." The page numbers referenced in this opinion are the Bates

stamp numbers at the bottom of the page of each exhibit or the

page number on the particular document.

2 With respect to the Petition, Response and Reply, the Court will

II. EVIDENTIARY HEARING

A habeas petitioner has the burden to establish a need for an

evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr.,

647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner bears

the burden of establishing the need for an evidentiary hearing

with more than speculative and inconcrete claims of need), cert.

denied, 565 U.S. 1120 (2012). Upon review, the Court can

"adequately assess [Petitioner's] claims without further factual

development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), cert. denied, 541 U.S. 1034 (2004). Petitioner has not

carried his burden and is not entitled to an evidentiary hearing.

Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

III. THE PETITION

The Petition is timely filed. Response at 7. Respondents

contend the first three grounds of the Petition present state law

claims, id. at 19-24, and the AEDPA (The Antiterrorism and

Effective Death Penalty Act) deference is applicable to the

remaining grounds.

IV. HABEAS REVIEW

Petitioner claims he is detained “in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C.

reference the page number assigned by the electronic filing system.

§ 2241(c)(3). This Court recognizes its authority to award habeas

corpus relief to state prisoners “is limited-by both statute and

Supreme Court precedent.” Knight v. Fla. Dep’t of Corr., 936 F.3d

1322, 1330 (11th Cir. 2019). The AEDPA governs a state prisoner's

federal petition for habeas corpus and “prescribes a deferential

framework for evaluating issues previously decided in state

court[,]” Sealey v. Warden, Ga. Diagnostic Prison, No. 18-10565,

2020 WL 1527977, at *9 (Mar. 31, 2020) (citation omitted), limiting

a federal court’s authority to award habeas relief. See 28 U.S.C.

§ 2254; Shoop v. Hill, 139 S. Ct. 504, 506 (2019) (per curiam)

(recognizing AEDPA imposes “important limitations on the power of

federal courts to overturn the judgments of state courts in

criminal cases"). As such, federal courts may not grant habeas

relief unless one of the claims: "(1)'was contrary to, or involved

an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,' or (2)

'was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.' 28 U.S.C.

§ 2254(d)." Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d

1298, 1300-1301 (11th Cir. 2019), cert. denied, No. 19-6918, 2020

WL 1325907 (U.S. Mar. 23, 2020). See Sealey, 2020 WL 1527977, at

*9.

In Knight, the Eleventh Circuit explained:

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 (2000)] at

413, 120 S. Ct. 1495. A state court decision

involves an unreasonable application of

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. To justify issuance of

the writ under the “unreasonable application”

clause, the state court’s application of

Supreme Court precedent must be more than just

wrong in the eyes of the federal court; it

“must be ‘objectively unreasonable.’”

Virginia v. LeBlanc, ––– U.S. ––––, 137 S. Ct.

1726, 1728, 198 L.Ed.2d 186 (2017)(quoting

Woods v. Donald, ––– U.S. –––, 135 S. Ct. 1372,

1376, 191 L.Ed.2d 464 (2015)); see also Bell

v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843,

152 L.Ed.2d 914 (2002) (explaining that “an

unreasonable application is different from an

incorrect one.”).

Knight, 936 F.3d at 1330–31.

To obtain habeas relief, the state court decision must

unquestionably conflict with Supreme Court precedent, not dicta.

Harrington v. Richter, 562 U.S. 86, 102 (2011). If some fair-

minded jurists could agree with the lower court's decision, habeas

relief must be denied. Meders v. Warden, Ga. Diagnostic Prison,

911 F.3d 1335, 1351 (11th Cir.), cert. denied, 140 S. Ct. 394

(2019). Therefore, unless the petitioner shows the state-court's

ruling was so lacking in justification that there was error well

understood and comprehended in existing law beyond any possibility

for fair-minded disagreement, there is no entitlement to habeas

relief. Burt v. Titlow, 571 U.S. 12, 19-20 (2013).

This Court must accept that a state court's finding of fact,

whether a state trial court or appellate court, is entitled to a

presumption of correctness under 28 U.S.C. § 2254(e)(1). “The

state court’s factual determinations are presumed correct, absent

clear and convincing evidence to the contrary.” Sealey, 2020 WL

1527977, at *9 (quoting 28 U.S.C. § 2254(e)(1)). This presumption

of correctness, however, applies only to findings of fact, not

mixed determinations of law and fact. Brannan v. GDCP Warden, 541

F. App'x 901, 903-904 (11th Cir. 2013) (per curiam) (recognizing

the distinction between a pure question of fact from a mixed

question of law and fact), cert. denied, 573 U.S. 906 (2014).

Where there has been one reasoned state court judgment rejecting

a federal claim followed by an unexplained order upholding that

judgement, federal habeas courts employ a "look through"

presumption: "the federal court should 'look through' the

unexplained decision to the last related state-court decision that

does provide a relevant rationale. It should then presume that the

unexplained decision adopted the same reasoning." Wilson v.

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

Thus, the reviewing federal court’s habeas corpus

consideration of a petition under AEDPA is a guard against extreme

malfunctions in the state criminal justice systems, not a mechanism

for ordinary error correction. Richter, 562 U.S. at 102-103

(citation and quotation marks omitted). As noted in Sealey, 2020

WL 1527977, at *9 (citations omitted), when reviewing whether there

has been an unreasonable application of federal law, “[t]he key

word is ‘unreasonable,’ which is more than simply incorrect.”

Consequently, state-court judgments will not easily be set aside

due to the applicability of the highly deferential AEDPA standard

that is intentionally difficult to meet. See Richter, 562 U.S.

at 102. Although a high hurdle, this high standard does not impose

a complete bar to issuing a writ, but it severely limits those

occasions to those "where there is no possibility fairminded

jurists could disagree that the state court's decision conflicts"

with Supreme Court precedent. Id.

V. GROUNDS ONE, TWO, AND THREE

GROUND ONE: THE TRIAL COURT COMMITTED FUNDAMENTAL ERROR BY

FAILING TO APPLY THE LAW OF THE CASE AND IMPOSING UPON PETITIONER

THE BURDEN TO PROVE THAT THE KILLING WAS AN ACT OF JUSTIFIABLE

HOMICIDE[.]

Petitioner alleges fundamental error committed by the trial

court in its failure to apply the law of the case and by imposing

a burden on the defense to prove the killing was an act of

justifiable homicide (Doc. 1-1 at 1). Petitioner raised a

comparable claim in Issue I of his counseled initial direct appeal

brief following his second jury trial. Ex. PP at i, 17-18. He

argued, “[s]ince the jury was instructed that the state bears the

burden of proof as to the elements of the offense, the jury may

have reasonably assumed[,]” the trial court’s self-defense

instruction shifted the burden to the defense to prove the defense

of self-defense or justifiable use of deadly force. Id. at 18.

The record demonstrates the trial court instructed: “[a]n issue in

this case is whether the defendant acted in self-defense. It is

a defense to the offense with which Steven Montgomery is charged

if the death of Tarnesha Ellis resulted from the justifiable use

of deadly force.” Ex. KK at 494. The court continued its

instruction on the Justifiable Use of Deadly Force,

Deadly force means force likely to cause

death or great bodily harm.

The use of deadly force is justifiable

only if the defendant reasonably believes that

the force is necessary to prevent imminent

death or great bodily harm to himself while

resisting, one, another’s attempt to murder

him or, number two, an attempt to commit an

aggravated assault upon him or, three, an

attempt to commit an aggravated assault upon

[or in] any dwelling, residence or vehicle

occupied by him.

Id.

On direct appeal, in a counseled brief, Petitioner argued the

instructions included an erroneous shifting of the burden of proof

on the disputed mens rea element of second degree murder or

manslaughter by act. Ex. PP at 23. Although acknowledging state

case law holding otherwise, id., Petitioner urged the 1st DCA to

find that the law of his case, State v. Montgomery, 39 So. 3d 252

(Fla. 2010), should take precedence over the rule of the court set

forth in Elliott v. State, 49 So. 3d 269 (Fla. 1st DCA 2010) (per

curiam), rev. denied, 69 So. 3d 277 (Fla. 2011) and Mosansky v.

State, 33 So. 3d 756 (Fla. 1st DCA 2010) (per curiam), rev. denied,

46 So. 3d 48 (Fla. 2010), to the extent inconsistent with the law

of the case. Ex. PP at 23-24.

The state, in its Answer Brief of Appellee, responded that

this issue was waived as the defense accepted the standard jury

instruction on justifiable and excusable homicide. Ex. QQ at 14-

16. Indeed, the record shows defense counsel, after reviewing the

proposed instructions, accepted all of the instructions, stating

“they’re fine as they are.” Ex. KK at 408. Thereafter, the trial

court instructed the jury as to the justifiable use of deadly

force. Id. at 494.

Also, notably, in its answer brief, the state explained that

in Petitioner’s case, Montgomery, the 1st DCA addressed the jury

instructions on manslaughter by act, not the issue of the operation

of the affirmative defense of self-defense. Ex. QQ at 20.

Moreover, it was noted that, recently, the 1st DCA had found the

issue raised by Montgomery without merit finding excusable and

justifiable homicide are not elements of the offense, but an

affirmative defense that in effect, legally excuses the defendant

from an act that otherwise would be a criminal offense. Id. at

20-21. As such, the state urged the 1st DCA to find any error in

the standard instruction harmless. Id. at 22-23. The First

District Court of Appeal (1st DCA) affirmed per curiam. Ex. SS.

In its response to the Petition, the state urges this Court

to find Petitioner fails to allege a violation of constitutional

dimension, but instead raises a state law claim of fundamental

error under Florida law. Response at 20. To the extent

Petitioner is claiming the jury instructions amount to fundamental

error, he presents an issue of state law. Even if the instructions

were erroneous under Florida law, “it is not the province of a

federal habeas court to reexamine state-court determination on

state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67 (1991).

Error, if any, did not rise to the level of a due process

violation.3 Moreover, to the extent the 1st DCA addressed the

matter, having affirmed without opinion, the court implicitly

3 “Cases in [the United States Supreme Court] have long

proceeded on the premise that the Due Process Clause guarantees

the fundamental elements of fairness in a criminal trial.”

Spencer v. State of Tex., 385 U.S. 554, 563-64 (1967).

found no fundamental error under Florida law. Otherwise, it would

have granted Petitioner relief.

Alternatively, Petitioner has not demonstrated the 1st DCA

unreasonably applied clearly established federal law, as

determined by the Supreme Court of the United States, in denying

any due process claim, if one was presented. Petitioner has not

shown the state court’s rejection of the claim was contrary to, or

an unreasonable application of, clearly established federal law;

therefore, AEDPA deference is due to the state court’s decision

rejecting this claim. Thus, Petitioner is not entitled to habeas

relief.

To the extent a due process claim was raised and addressed,

the adjudication of the state appellate court resulted in a

decision that involved a reasonable application of clearly

established federal law, as determined by the United States Supreme

Court. Therefore, Petitioner is not entitled to relief on this

ground because the 1st DCA's decision was not contrary to clearly

established federal law, did not involve an unreasonable

application of clearly established federal law, and was not based

on an unreasonable determination of the facts in light of the

evidence presented in the state court proceedings. Therefore,

ground one is due to be denied.

GROUND TWO: THE TRIAL COURT COMMITTED FUNDAMENTAL ERROR IN

INSTRUCTING THE JURY ON “JUSTIFIABLE USE OF DEADLY FORCE: BECAUSE

THE INSTRUCTION ERRONEOUSLY IMPOSED A DUTY TO RETREAT.[”]

Petitioner claims the trial court committed fundamental error

by giving the jury instruction on the justifiable use of deadly

force because the instruction improperly imposed a duty to retreat

through its instruction. (Doc. 1-1 at 2). Petitioner raised a

comparable issue in Issue II of his counseled initial brief on

direct appeal. Ex. PP at 18-19, 24-30. Petitioner urged the 1st

DCA to find the jury instructions were conflicting because they

instructed Petitioner had a duty to retreat while also instructing

Petitioner could stand his ground. Id. at 18-19. In its Answer,

the state responded the trial court adequately instructed the jury

on the stand your ground law while giving the broader, standard

instructions as well, properly instructing the jury that

Petitioner was relieved of the duty to retreat in certain

circumstances. Ex. QQ at 13. See Ex. KK at 495-96. The 1st DCA

affirmed. Ex. SS.

The record demonstrates, after the self-defense instruction

and the instruction on aggravated assault, the court charged:

The person is justified in using deadly

force if he reasonably believes that such

force is necessary to prevent, number one,

imminent death or great bodily harm to himself

or another or the imminent commission of an

aggravated assault against himself or another.

In deciding whether the defendant is

justified in the use of deadly force you must

judge him by the circumstances by which he was

surrounded at the time the force was used.

The danger facing the defendant need not

have been actual. However, to justify the use

of deadly force the appearance of danger must

have been so real that a reasonably cautious

and prudent person under the circumstances

would have believed the danger would have been

avoided only through the use of that force.

Based upon appearances the defendant must have

actually believed that the danger was real.

If the defendant was not engaged in an

unlawful activity and was attacked in any

place where he had a right to be he had no

duty to retreat and had the right to stand his

ground and meet force with force including

deadly force if he reasonably believed that it

was necessary to do so to prevent death or

great bodily harm to himself or to prevent the

commission of a forcible felony.

In considering the issue of self-defense

you may take into account the relative

physical abilities and capacities of the

defendant and Tarnesha Ellis.

Ex. KK at 495-96.

As noted by Respondents, in this ground, Petitioner claims

fundamental error under Florida law. Petitioner states he

presented some evidence of self-defense, but the justifiable use

of deadly force instruction directly conflicted with the stand

your ground instruction, essentially negating his only defense.

(Doc. 1-1 at 2-3).

As noted previously, defense counsel waived any complaints

about the jury instructions, accepting the instructions on the

record. The state, in its answer brief on direct appeal, countered

Petitioner’s argument: “[r]ead together, [the instructions] imply

a person with no duty to retreat still has a duty to use deadly

force only if reasonably necessary.” Ex. QQ at 25. The state

explained that just because retreat is no longer the first option

by law, it does not excuse outright unreasonable uses of deadly

force under Florida law. Id. In sum, the state argued, although

Petitioner was required to use reasonable means to avoid deadly

force, he still had no duty to retreat if he were acting lawfully

in a place where he had a right to be. Id. at 27. Finally, the

state urged the 1st DCA to find no fundamental error in light of

the complete jury instructions provided to the jury. Id. at 29.

The 1st DCA per curiam affirmed. Ex. SS.

This claim involves statutory interpretation of a state law

by state courts, not a claim of constitutional dimension that

Petitioner is in custody in violation of the Constitution or laws

or treaties of the United States. 28 U.S.C. § 2254(a). Indeed,

if erroneous, whether the giving of the instruction amounts to

fundamental error is a question of state law. Of course, the 1st

DCA, the arbiter of this question, rejected the claim. Thus, this

Court should not step into the fray to address a matter of state-

created rights. The writ of habeas corpus under 28 U.S.C. § 2254

“was not enacted to enforce State-created rights.” Cabberiza v.

Moore, 217 F.3d 1329, 1333 (11th Cir. 2000) (citing Branan v.

Booth, 861 F.2d 1507, 1508 (11th Cir. 1988)), cert. denied, 531

U.S. 1170 (2001).

The law in the Eleventh Circuit allows that only in cases of

federal constitutional error will a federal writ of habeas corpus

be available. See Jones v. Goodwin, 982 F.2d 464, 471 (11th Cir.

1993); Krasnow v. Navarro, 909 F.2d 451, 452 (11th Cir. 1990).

Consequently, federal habeas relief does not lie for errors of

state law. It is certainly not the province of this Court to

reexamine state-court determinations on issues of state law. See

Estelle v. McGuire, 502 U.S. at 67-68. "This limitation on federal

habeas review is of equal force when a petition, which actually

involves state law issues, is 'couched in terms of equal protection

and due process.'" Branan v. Booth, 861 F.2d 1507, 1508 (11th

Cir. 1988) (quoting Willeford v. Estelle, 538 F.2d 1194, 1198 (5th

Cir. 1976)).

The federal habeas corpus court will be bound by the Florida

court's interpretation of its own laws unless that interpretation

breaches a federal constitutional mandate. McCoy v. Newsome, 953

F.2d 1252, 1264 (11th Cir. 1992) (per curiam), cert. denied, 504

U.S. 944 (1992). Since this ground presents an issue that is not

cognizable in this habeas proceeding, it cannot provide a basis

for federal habeas corpus relief. Furthermore, there is no breach

of a federal constitution mandate and Petitioner is not entitled

to federal habeas relief on ground two.

GROUND THREE: THE IMPOSITION OF A SENTENCE OF LIFE IMPRISONMENT

MUST BE PRESUMED VINDICTIVE WHERE THE RECORD RELEVANT TO THE

QUESTION OF VINDICTIVENESS CANNOT BE RECONSTRUTED.

In support of this claim, Petitioner references a Florida

case, Delap v. State, 350 So. 2d 462 (Fla. 1977) (per curiam), and

argues he is entitled to a new trial because a conference was not

recorded by a court reporter and a record of the proceeding cannot

be reconstructed as the parties disagree as to precisely what

transpired at the proceeding and the presiding judge expressed

vindictive notions and is deceased. 4 (Doc. 1-1 at 3-4).

Petitioner believes the trial judge had some pre-disposed

inclination to sentence Petitioner to a greater sentence after the

second trial based on some of the court’s comments at a conference.

Id. Petitioner raised a similar claim in Issue III of his direct

appeal brief.5 Ex. PP, Initial Brief of Appellant, at 30-33.

4 Petitioner states in the Petition the conference occurred pre-

trial, on January 6, 2001 [sic] (Doc. 1-1 at 4).

5 Although this issue is presented somewhat inconsistently

throughout the Petitioner’s pleadings, on appeal, Petitioner

claimed, “the trial court instructed the parties, before trial, to

research this issue.” Ex. PP, Initial Brief of Appellant, at 14.

The state noted the unreported conference in question occurred

between trial and sentencing. Ex. QQ, Answer Brief of Appellee,

In his second trial, tried before the late Honorable Jefferson

Morrow, a conference occurred in chambers, unrecorded, between

trial and sentencing. Ex. QQ, Answer Brief of Appellee, at 30.

Apparently, Judge Morrow asked for briefing on sentencing, and the

parties satisfied his request, with the state filing a memorandum

on January 28, 2011, and the defense filing a memorandum on January

31, 2011. Ex. HH at 564-68, 569-73.

In the close of the defense memorandum, defense counsel

argued:

In conclusion, because the same evidence

was adduced at trial as the first; Defendant

earning his G.E.D. (among other

certifications) since being imprisoned; the

employing of the same defense strategy; the

Court’s request of the parties to research

this issue while in chambers prior to trial

and before any evidence had been heard-any

sentence imposed greater than 45 years will

compel Defense to argue that such is

unfounded, violates due process, and is

clouded with vindictiveness.

Id. at 573 (emphasis added).

At sentencing, during closing argument, the state argued it

was the defendant’s burden to show vindictiveness if the court

were to sentence Petitioner to a sentence greater than 45 years.

Ex. HH at 611, Sentencing Transcript of February 2, 2011. The

state also distinguished Petitioner’s case from other published

at 30. The trial occurred on January 10-12, 2011. Ex. II; Ex.

JJ; Ex. KK.

vindictiveness cases, pointing out Petitioner had a new judge for

the second trial, eliminating any notion of vindictiveness on the

part of the initial trial judge relating to a defendant prevailing

on appeal of the first trial. Id. at 611-12. The state posited

it was within the trial court’s discretion to sentence Petitioner

to the maximum penalty, life, and the state urged the court to do

so. Id. at 613. In closing, the prosecutor said his recollection

of what happened in chambers (at the un-recorded conference) was

entirely different from defense counsel’s recollection. Id. at

613-14. The prosecutor recalled he expressed the position that

Petitioner could be given a greater sentence, and then told the

court the state would be providing law to back that notion up.

Id. He further recalled, the court, upon hearing the state’s

position and stated intention to provide law, said, “I’d like to

hear law from both sides so that I will be educated to that

issue[.]” Id. at 614. The prosecutor said, thereafter, based on

the court’s directive, the parties provided memoranda. Id.

Defense counsel, in closing argument, stated, when the court

asked the parties to research the sentencing issue, counsel was

“not saying it was vindictive at that time[.]” Id. at 617. Defense

counsel surmised that the trial court was asking questions “because

it was contemplating giving a sentence in excess of 45 years.”

Id. Thereafter, defense counsel acknowledged that the court has

“wide discretion” in sentencing, but argued, it could be inferred,

by asking for briefing, the court was contemplating giving a

greater sentence before hearing any of the sentencing facts. Id.

at 617-18. After argument, Petitioner took the stand, apologized

to the victim’s family, and asked the court to not be vindictive.

Id. at 620-21.

The court, in pronouncing sentence, said it had “no

vindictiveness” against Petitioner due to his exercising his

appellate rights. Id. at 621. The court, however, found “the

physical facts astounding.” Id. The court said the facts showed

a gruesome and brutal killing, evincing a medieval torture scene.

Id.at 621-22. The court also noted the first trial was tried

under a first degree murder theory with the question of

premeditation going to the jury, whereas the second trial was tried

under a second degree murder theory. Id. at 622. The court

pointed out that, at the second trial, the prosecutor presented

evidence concerning the child seeing the mother and testimony from

a blood splatter expert witness (who did not testify as an expert

at the first trial). Id.

In making its ruling, the court specifically said it was not

issuing the sentence in vindictiveness, but, “the facts cry out

for a life sentence, period.” Id. at 623. The court explained,

the victim, a 23-year-old woman, in a horrible scene, was beaten

throughout the house, tortured, and murdered. Id. The court

sentenced Petitioner to life in prison. Id.

Upon review, Petitioner raised a comparable claim in Issue

III of his brief on direct appeal of the second trial. Ex. PP at

29-38. The 1st DCA affirmed per curiam. Ex. SS.

In the counseled direct appeal brief, it was first noted,

generally, there is no presumption of vindictiveness if a defendant

is resentenced by a successor judge, which is what occurred in

Petitioner’s case. Ex. PP at 31. Appellate counsel recognized

Petitioner had the burden to prove “actual vindictiveness.” Id.

The state, in its answer brief, said:

Montgomery’s sentence was largely based on the

extreme brutality of the crime, buttressed by

the additional blood spatter evidence. It was

also based on the different theory of

prosecution in the second trial; and, in

passing, on the evidence the victim’s young

son saw his mother’s condition. The court

expressly disavowed any vindictiveness based

on Montgomery’s exercise of his appellate

rights.

Ex. QQ, Answer Brief of Appellee, at 33.

Although Petitioner provided the circuit court with a

Statement of the Evidence, stating the facts giving rise to the

vindictiveness claim occurred in an in-chamber conversation on

January 6, 20016 [sic] (alleged date of final pretrial), when the

6 Later in the statement, counsel referred to the in-chambers

meeting taking place on January 6, 2011. Ex. NN, Statement of the

court inquired as to whether it was bound by the prior 45-year

sentence. Ex. NN, Statement of the Evidence, at 1. Defense

counsel related that a friendly debate ensued concerning the state

of the law, and because the parties disagreed as to the controlling

law, the court instructed the parties to research the issue. Id.

Defense counsel “presumed” the court intended to impose a stiffer

sentence. Id. The circuit court, after reviewing Petitioner’s

statement and the state’s submission of the transcript of the

sentencing hearing on February 2, 2011, stated it was “unable to

resolve the parties dispute because the undersigned did not preside

over the proceedings in dispute.” Ex. NN, Order on Statement of

the Evidence. The circuit court also noted the presiding and

sentencing judge is deceased. Id.

Based on all of the above, it is clear, the prophylactic rule

of North Carolina v. Pearce, 395 U.S. 711 (1969) is inapplicable

to Petitioner’s situation as Petitioner had a different judge for

the second trial. Texas v. McCullough, 475 U.S. 134, 138, 140

(1986). Moreover, Petitioner did not raise a due process claim

on direct appeal, nor does he raise a due process claim in his

Petition.7

Evidence, at 2. This is apparently the correct date of the un-

recorded proceeding as the second trial occurred in 2011, not 2001.

7 Due process of law requires that vindictiveness against a

defendant for successfully attacking his conviction should play

McCullough teaches vindictiveness of the sentencing judge is

the evil to be prevented, not the enlargement of a sentence after

a new trial. Id. at 138. If a second court imposes a longer

sentence, the presumption is inapplicable. Id. (citing Colten v.

Ky., 407 U.S. 104 (1972)). Indeed, unlike a trial judge who has

been reversed, a new judge has “no motivation to engage in self-

vindication.” Id. at 139 (quoting Chaffin v. Stynchcombe, 412

U.S. 17, 27 (1973)).

Relying on mere speculation or the personal impression of

defense counsel and/or Petitioner, the defense raised the specter

of vindictiveness, even while admitting the trial court was not

acting vindictively at the time it asked for briefing on the

sentencing question after the second trial. Of import, Judge

Morrow was not the trial/sentencing judge for the first trial. On

the record, he provided a wholly logical, non-vindictive reason

for sentencing Petitioner to life in prison and announced he was

not acting vindictively. This sentencing decision was well within

the court’s broad discretion.

Judge Morrow sentenced Petitioner to life in prison although

Petitioner had previously been sentenced to forty-five years in

prison after the first trial. See Ex. HH, Sentencing Transcript

absolutely no part in the re-sentencing decision made by a judicial

officer.

of February 2, 2011. On this record, the judge’s rational for

sentencing Petitioner to life in prison did not evince

vindictiveness against the Petitioner for having successfully

appealed his first conviction and sentence. This record lacks

“actual vindictiveness.”

As noted by Respondents, Petitioner “does not seek relief in

federal habeas on the ground that the trial court’s imposition of

a life sentence following retrial violates due process.” Response

at 23. Consequently, Petitioner does not raise a claim of

constitutional dimension. Any entitlement to relief under state

law for satisfying the conditions set forth in Delap is not

something to be addressed on federal habeas review as it would

simply be correction of an error based on state law. As such,

Petitioner is not entitled to federal habeas relief on ground

three.

VI. REMAINING GROUNDS

In the remaining grounds, Petitioner raises claims of

ineffective assistance of trial counsel. To prevail on a Sixth

Amendment claim, Petitioner must satisfy the two-pronged test set

forth in Strickland v. Washington, 466 U.S. 668, 688 (1984),

requiring that he show both deficient performance (counsel's

representation fell below an objective standard of reasonableness)

and prejudice (there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different). See Brewster v. Hetzel, 913 F.3d

1042, 1051-52 (11th Cir. 2019) (reviewing court may begin with

either component).

In order to obtain habeas relief, a counsel's errors must be

so great that they adversely affect the defense. In order to

satisfy this prejudice prong, the reasonable probability of a

different result must be "a probability sufficient to undermine

confidence in the outcome." Strickland, 466 U.S. at 694.

The standard created by Strickland is a highly deferential

standard, requiring a most deferential review of counsel's

decisions. Richter, 562 U.S. at 105. Not only is there the

"Strickland mandated one layer of deference to the decisions of

trial counsel[,]" there is the added layer of deference required

by AEDPA: the one to a state court's decision. Nance, 922 F.3d

at 1303. Thus,

Given the double deference due, it is a "rare

case in which an ineffective assistance of

counsel claim that was denied on the merits in

state court is found to merit relief in a

federal habeas proceeding." Johnson v. Sec'y,

DOC, 643 F.3d 907, 911 (11th Cir. 2011). And,

for the reasons we have already discussed, it

is rarer still for merit to be found in a claim

that challenges a strategic decision of

counsel.

Nance, 922 F.3d at 1303.

GROUND FOUR: INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL RENDERED

I.A.C. BY FAILING TO OBJECT TO IMPROPER ARGUMENT/COMMENTS BY THE

PROSECUTION DURING ITS’ OPENING STATEMENT.

Petitioner raised a comparable claim in ground one of his

Rule 3.850 motion. Ex. WW at 3-5. The trial court directed the

state to respond, id. at 26-27, and the state responded to

Petitioner’s allegations. Id., Response to Defendant’s Motion for

Post-Conviction Relief (Rule 3.850 Response), at 56-61. In

denying post-conviction relief, the trial court stated: “[u]pon

review, the record refutes Defendant’s entitlement to relief

[Exhibit D].” Id. at 311 (footnote omitted). Exhibit D contains

the very detailed Rule 3.850 Response and supporting attachments.

The court also referenced Barnes v. State, 38 So. 3d 218 (Fla. 2d

DCA 2010) (allowing for a summary denial -rather than providing

rationale- of a Rule 3.850 motion by incorporating a response from

the state as long as the state has provided the necessary record

documents).

Of import, the state, in its Rule 3.850 Response, specifically

referenced the two-pronged Strickland standard. Rule 3.850

Response at 57-58. The state, incapsulating Petitioner’s

complaint about the allegedly objectionable comments made by the

prosecutor in opening statement, summarized the four areas: (1)

the statements concerning the weapons used to beat the victim and

the means used to accomplish the victim’s death; (2) the statements

playing on the sympathy of the jury by describing the victim, her

son, and the fact that the victim bought a house and was doing the

best she could to keep her household; (3) the statements that

Petitioner removed the phone cords from the walls, preventing the

victim from getting help, while Petitioner beat the victim to

death; and, (4) the statements about blood being everywhere. Id.

at 58-61. The state noted there was evidence presented at trial

supporting the comments, including testimony of the medical

examiner; testimony from the victim’s mother that although a single

parent, the victim kept a neat and clean home; testimony from the

evidence technician that the phone was on the floor and the cord

and jack were damaged and out of the wall; and finally, testimony

from the blood spatter expert about blood being all over, including

the ceiling, and the possible use of household items as weapons.

Id.

The state argued, as evidence was put forth supporting the

opening statement, any failure of defense counsel to object did

not amount to deficient performance. Id. at 61. The state also

submitted Petitioner failed to demonstrate prejudice. Id. After

adopting the state’s response (with attachments), the trial court

denied post-conviction relief. Ex. WW at 311-12.

As this was the second trial for Petitioner, defense counsel

was well aware of the evidence that was going to be put on by the

prosecutor. Here, failure to raise meritless objections to the

prosecutor’s opening statement did not prejudice Petitioner’s

case. At trial, the state presented a wealth of evidence against

Petitioner. Since the prosecutor’s comments in opening were an

interpretation of the evidence to be presented at trial, and

clearly based on the actual testimony and evidence presented, there

was no deficiency in counsel’s performance in failing to object to

the comments based on the evidence. Petitioner has also failed

to demonstrate prejudice. As such, Petitioner has not established

that the state court decision was contrary to or an unreasonable

application of federal law, nor that there was an unreasonable

determination of the facts.

Petitioner appealed the denial of his Rule 3.850 motion.

Pursuant to Wilson, it is assumed the 1st DCA adopted the reasoning

of the trial court in denying the motion. Ex. XX. The state has

not attempted to rebut this presumption. Deference under AEDPA

should be given to the last adjudication on the merits provided by

the 1st DCA. Upon review, the Florida court’s decision is not

inconsistent with Supreme Court precedent, including Strickland

and its progeny. Moreover, the state court’s adjudication of this

claim is not contrary to or an unreasonable application of

Strickland or based on an unreasonable determination of the facts.

As such, ground four is due to be denied.

GROUND FIVE: INEFFECTIVE ASSISTANCE OF COUNSEL; COUNSEL RENDERED

I.A.C. BY FAILING TO OBJECT TO HEARSAY STATEMENTS OF THE VICTIM’S

3-YEAR-OLD SON AND/OR FILE A MOTION IN LIMINE TO PROHIBIT SAME.

In the supporting facts for this ground, Petitioner states

the victim’s grandmother, Mercie Ellis, testified as to a hearsay

statement of the victim’s son: “Momma got ketchup all over her

hand and face.” (Doc. 1-1 at 6). Petitioner surmises this

comment “took away any presumption that [the child] did not witness

the event in question.” Id. Petitioner also asserts the

prosecutor’s comment in opening statement that there were no

eyewitnesses to the murder, and the child was too young to testify,

improperly implied the child witnessed the crime. Id.

Petitioner asserts his counsel was ineffective for failure to

file a pre-trial motion in limine to prohibit any mention of the

child witnessing the event or the introduction of hearsay testimony

concerning what he may have said. Id. Petitioner raised a

comparable claim in ground two of his Rule 3.850 motion. Ex. WW

at 5-6. The state, in its Rule 3.850 Response, argued the

statement of the child was a spontaneous statement to the great

grandmother and non-testimonial; therefore, the statement was

admissible regardless of the availability of the child witness.

Id. at 62-63. As such, the state urged the trial court to find

Petitioner failed to demonstrate a legal deficiency in failing to

object to the statement as it was properly admitted. Id. at 63.

Alternatively, the state argued any admission of the statement was

harmless because there was cumulative evidence there was blood

scattered about the scene and on the victim. Id.

The record demonstrates, in opening statement, the prosecutor

said: “[a]nd you’ll hear that there were no eyewitnesses to the

murder. The boy was too young in order to be able to testify but

– and he was in another room[.]” Ex. II at 20. Mercie Ellis

testified, without objection, that her great grandson, when he was

brought to her house, held up his hand and said, “my mama had got

ketchup on her hand and all over her face.” Id. at 45.

Based on a review of the state’s opening statement in its

entirety, the prosecutor first said there were no eyewitnesses to

the murder, and then he clarified his comment about the child being

too young to testify by stating the boy was in a different room.

Reviewing the comments in context, defense counsel’s performance

was not deficient for failure to file a pre-trial motion in limine.

The prosecutor never said the child witnessed the killing. In

fact, the prosecutor said the boy was in a different room. As to

the great grandmother’s testimony as to the child’s spontaneous

statement to her that the victim, the boy’s mother, had ketchup on

her hand and face, defense counsel did not perform below an

objective standard of reasonableness by failing to file a motion

in limine to prohibit this testimony. As noted by Respondents,

this was not a testimonial statement but rather a spontaneous

statement made by the child to his great grandmother. Thus, the

statement was properly introduced into evidence and any objection

would have been fruitless and any attempt to obtain relief through

a motion in limine unsuccessful.

Alternatively, due to cumulative evidence presented at trial

regarding blood being found throughout the house and on the victim,

there was no prejudice to the defense based on any failure by

counsel to file a motion in limine as subscribed by Petitioner.

Petitioner has failed to satisfy the prejudice prong of Strickland;

the result of the proceeding would not have changed as numerous

witnesses testified to the extent of the victim’s wounds and the

blood and food found on her person and throughout the house. See

Arins v. McNeil, No. 07-60999-Civ-COHN, 2008 WL 2264503, at *9

(S.D. Fla. Mar. 28, 2008) (finding error harmless beyond a

reasonable doubt given the overall strength of the prosecution’s

case, consisting of more than hearsay evidence), report and

recommendation adopted by 2008 WL 2264499 (S.D. Fla. June 2, 2008).

The 1st DCA affirmed the decision of the trial court rejecting

this claim of ineffective assistance of counsel. Ex. XX. The 1st

DCA’s decision, although unexplained, is entitled to AEDPA

deference. Applying the look through presumption described in

Wilson, the state court’s ruling is based on a reasonable

determination of the facts and a reasonable application of the

law. Thus, the Florida court’s decision is not inconsistent with

Supreme Court precedent, including Strickland, and the state

court’s adjudication of the claim is not contrary to or an

unreasonable application of Strickland or based on an unreasonable

determination of the facts. Thus, ground five is due to be denied.

GROUND SIX: INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL RENDERED

I.A.C. BY FAILING TO REQUEST THE SPECAIL JURY INSTRUCTIONS

REGARDING USE OF EXCESSIVE FORCE WHERE EVIDENCE EXISTED TO WARRANT

SUCH INSTRUCTION.

Petitioner claims, in ground six, trial counsel’s performance

was deficient for failure to request a special jury instruction

that if the jury were to find the claim of self-defense

insufficiently supported, the killing may arguably be manslaughter

if the jury finds from the result of sudden heat of passion, the

defendant used more force than reasonable. (Doc. 1-1 at 7).

Petitioner raised a comparable claim in ground three of his Rule

3.850 motion. Ex. WW at 6-8. The state, in its Rule 3.850

Response, pointed out that in the first trial, defense counsel

requested four special jury instructions relating to the use of

excessive force and manslaughter; however, the trial court denied

all four requests. Id. at 65. Moreover, the state related,

Petitioner’s proposed instruction “quotes the exact language and

case law cited from the previously offered special instructions.”

Id. (citation omitted). The state recognized the trial court

declined to adopt the special instructions, finding the standard

jury instructions sufficient. Id. at 65-66.

Notably, the state argued the standard jury instructions are

presumed to be correct and are generally given preference over

other instructions, relying on Stephens v. State, 787 So. 2d 747,

755-756 (Fla. 2001) (per curiam), cert. denied, 534 U.S. 1025

(2001). Id. at 67. The state urged the trial court to conclude

defense counsel was not ineffective for failure to request the

special instructions Petitioner’s believed suitable in the second

trial because the proposed instructions had already been rejected

by the trial court in the first trial and the standard instructions

were sufficient to address Petitioner’s concerns about the use of

excessive force in defending himself. Id. at 68. In conclusion,

the state urged the court to deny post-conviction relief because

Petitioner failed to demonstrate legal deficiency on the part of

counsel, or any prejudice to himself, in any failure to request

special jury instructions for the second trial. Id.

The trial court denied post-conviction relief. Ex. WW at

311-12. The 1st DCA affirmed. Ex. XX.

The record demonstrates the court charged: “[i]f you find

that Tarnesha Ellis was killed by Steven Montgomery you will then

consider the circumstances surrounding the killing in deciding if

the killing was murder in the second degree or manslaughter or

whether the killing was excusable or resulted from justifiable use

of deadly force.” Ex. KK at 489. The court then instructed the

jury on homicide, second degree murder, manslaughter, and self-

defense (the justifiable use of deadly force). Id. at 490-494.

The record shows that during the first trial, Petitioner

requested special jury instructions on the use of excessive force.

Ex. A at 59-66. The trial court, after hearing counsel’s request

and argument, declined to give the special instructions, finding

they were not sufficient to supplant the standard instructions and

would not be read in addition to the standard instructions. Ex.

F at 656-57.

As such, it can be concluded defense counsel in the second

trial had a reasonable basis not to request these same special

instructions in the second trial as they had already been rejected

in the first. Based on the record, it would likely be an effort

in futility to make these same requests in the second trial. The

record demonstrates the trial court gave the standard jury

instructions on the justifiable use of deadly force and stand your

ground law in the second trial without objection.

There was no deficient performance, and Petitioner has not

demonstrated prejudice under Strickland as the instructions given

addressed the theory of defense, that Petitioner’s actions started

as self-defense but evolved into manslaughter in the heat of

passion. The 1st DCA affirmed without an opinion and explanation.

Ex. XX. This decision, although unexplained, is entitled to AEDPA

deference. Applying the look through presumption described in

Wilson, the state court’s ruling is based on a reasonable

determination of the facts and a reasonable application of the

law.

The Florida court’s decision is not inconsistent with Supreme

Court precedent, including Strickland, and the state court’s

adjudication of the claim is not contrary to or an unreasonable

application of Strickland or based on an unreasonable

determination of the facts. Ground six is due to be denied.

GROUND SEVEN: INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL

RENDERED I.A.C. BY FAILING TO FILE A MOTION IN LIMINE TO PRECLUDE

SPECULATION OR OPINION TESTIMONY REGARDING THE ALLEGED ITEMS OR

OBJECTS USED AS WEAPONS, WHEN ONLY AN IRON AND/OR METAL BROOMSTICK

WERE CHARGED IN THE INFORMATION.

Petitioner raised a comparable claim in ground four of his

Rule 3.850 motion. Ex. WW at 8-10. The state, in its Rule 3.850

Response, addressed this ground, asserting the state could

properly admit any weapon arguably used to kill the victim. Id.

at 68-72. Thus, the state urged the court to deny the claim, as

counsel would not have prevailed in his request. Id. at 70.

Although the Indictment charged Petitioner with a killing “by

strangulation, and/or suffocation, and/or blunt force trauma, and

during the commission of aforementioned murder . . ., [Petitioner]

carried, displayed, used, threatened to use, or attempted to use

a weapon, to-wit: a clothing iron and/or a metal broomstick,

contrary to the provisions of sections 782.04(1)(a) and

775.087(1), Florida Statutes[,]” Ex. A at 44, the use of a weapon

is not an element of the crime. Response at 53. See Mitchell v.

State, 888 So. 2d 665, 668 (Fla. 1st DCA 2004) (per curiam) (citing

In the Interest of W.M., 491 So. 2d 1263 (Fla. 4th DCA 1986)).

The language identifying the weapon or means of killing is

“surplusage.” Id. at 668. Weapons are named for classification

purposes under Fla. Stat. § 775.087(1), but they are not limiting.

Connolly v. State, 172 So. 3d 893, 906 (Fla. 3d DCA 2015)

(reference to section 775.087 puts “defendant on notice that a

conviction for a lesser included offense in that count could

subject him to an enhancement and/or a reclassification of the

lesser offense”). See Ex. A at 88-89.

Thus, any failure of counsel to file a motion in limine or to

object to the testimony about various weapons and means of killing

would not have amounted to deficient performance. Upon review of

the trial transcript, “the testimony showed that any number of the

collected items could have been used as a weapon to injure the

victim, which made the items relevant to the death of the victim

by blunt force trauma.” Ex. WW at 71. Also, the state presented

the expert testimony of Dr. Scheuermann that the victim died from

manual strangulation in association with blunt force trauma. Id.

This testimony was relevant and admissible, and Petitioner has

failed to demonstrate any legal deficiency or prejudice in

counsel’s failure to challenge the admission of the various items

or the testimony on strangulation.

Of import, the defense did put on its own expert, Dr. Stanton

Kessler, to challenge the state’s expert’s testimony and his

conclusion that strangulation played a part in the victim’s death.

Ex. KK at 414-86. Dr. Kessler attested there was an insufficient

basis to support Dr. Scheuermann’s conclusion of manual

strangulation. Id. at 437.

The record shows defense counsel performed effectively by

putting on the defense’s own witness to testify that the victim

died of multiple injuries due to blunt trauma in a setting of

multiple left rib fractures, left hemopneumothorax (blood and air

in the lung), and fat emboli to the lungs, but not strangulation.

Id.

The Court concludes AEDPA deference is warranted. The record

shows the 1st DCA affirmed the decision of the trial court, Ex.

XX, and the Court presumes that the appellate court adjudicated

the claim on its merits, as there is an absence of any indication

of state-law procedural principles to the contrary. Since the

last adjudication is unaccompanied by an explanation, it is

Petitioner’s burden to show there was no reasonable basis for the

state court to deny relief. He has failed in this endeavor. Thus,

the Court finds the state court’s adjudication of this claim is

not contrary to or an unreasonable application of Strickland or

based on an unreasonable determination of the facts. As such,

ground seven is due to be denied.

GROUND EIGHT: INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL RENDERED

I.A.C. BY FAILING TO OBJECT TO THE VICTIM’S PHOTO BEING SHOWN

DURING THE ENTIRE CLOSING ARGUMENT.

Petitioner complains, during closing argument, the prosecutor

displayed a large photograph of the victim. (Doc. 1-1 at 10).

Petitioner asserts his counsel performed deficiently by failing to

object to this display which allegedly served to invoke the

sympathy of the jury. Id. Petitioner raised this same issue in

ground five of his Rule 3.850 motion. Ex. WW at 10-11. The

state, in its Rule 3.850 Response, explained the photograph shown

during closing was the identification photograph of the victim

used by the medical examiner. Id. at 72-73. The state urged the

court to deny the claim of ineffective assistance of counsel

because photographs are useful and may be displayed when the manner

of death is contested or when otherwise relevant to the facts and

issues of the case. Id. at 73. See Stephens v. State, 975 So.

2d 405, 416-17 (Fla. 2007) (per curiam) (“Counsel is not

ineffective for making a tactical decision not to object to

statements and photographs introduced during the State's closing

arguments when those statements and photographs were not

improper.”). As noted previously, the manner of death was

contested, as the defense was challenging the state’s expert’s

conclusion that strangulation played a part in the victim’s death.

The state submitted, under the circumstances presented, defense

counsel did not perform deficiently, and Petitioner was not

prejudiced by any failure to object. Id. at 73.

The trial court denied relief. Ex. WW at 311-12. The 1st

DCA per curiam affirmed. Ex. XX. As such, the state court

determined Petitioner failed to satisfy the requirements to

prevail under Strickland. Without meeting the Strickland two-

pronged standard, Petitioner cannot prevail on his claim of

ineffective assistance of trial counsel. Thus, ground eight is

due to be denied. Defense counsel’s representation was not so

filled with serious errors that defense counsel was not functioning

as counsel guaranteed by the Sixth Amendment. The state court’s

determination that Petitioner failed to satisfy the performance

and prejudice prongs of Strickland is consistent with federal

precedent.

This Court will presume the state court, the 1st DCA,

adjudicated the claim on its merits as there is an absence of any

indication or state-law procedural principles to the contrary.

Applying the “look-through” presumption of Wilson, the rejection

of the claim of ineffective assistance of counsel for failure to

make an objection to the display of the victim’s photograph during

closing was based on a reasonable determination of the facts and

a reasonable application of Strickland. Petitioner has failed to

show there was no reasonable basis for the 1st DCA to deny relief.

The state court’s adjudication of this claim is not contrary to or

an unreasonable application of Strickland or based on an

unreasonable determination of the facts. Therefore, Petitioner

is not entitled to habeas relief on ground eight.

GROUND NINE: INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL RENDERED

I.A.C. BY FAILING TO HAVE THE PETITIONER’S STATEMENT PUT INTO

EVIDENCE AS IT CONTAINED FACTS SUPPORTING THE DEFENSE THEORY AND

WOULD HAVE DISPROVED THE ELEMENTS OF SECOND DEGREE MURDER.

Petitioner raised a comparable claim in ground six of his

Rule 3.850 motion. Ex. WW at 11-14. Generally, Petitioner said

he spoke with the detectives and provided them with his version of

the events concerning the victim’s death. Id. at 11. Petitioner

claimed he and the victim fought, and Petitioner struck the victim

multiple times with his hands and other objects in an attempt to

disarm the victim as she came after Petitioner with a knife. Id.

He said he poured bleach and food items over the victim in various

areas of the house. Id. When the victim became unconscious,

Petitioner attempted to revive her using C.P.R., and when his

attempts to revive her proved unsuccessful, he made sure rescue

was called, and after rescue arrived, he left because he was

afraid. Id. He mentioned the victim went to the kitchen to get

a second knife once disarmed. Id. at 12. Petitioner said when

the victim had difficulty breathing and asked for water, Petitioner

provided her with water and wiped off food and blood. Id.

Petitioner argues his counsel should have brought out the

substance of this statement through cross-examination of Dennis

Sullivan, the lead detective, after the state opened the door by

asking a question that brought forth mention of Petitioner’s

statement. Id. at 12. Petitioner asserts counsel improperly

advised Petitioner that the statement could not be brought forth

without Petitioner taking the stand. Id.

The state responded to the post-conviction motion, relying on

the Strickland standard. Id. at 57-58. The state noted there was

no mention of Petitioner’s interview on direct. Id. at 74. The

trial record demonstrates the following. On direct, Detective

Dennis Sullivan testified he came into contact with Petitioner on

October 13, 2005, stating Petitioner was arrested and brought to

Jacksonville, where on October 14, 2005, photographs were taken of

him. Ex. JJ at 394-95. The questions on direct that followed

concerned the content of the photographs, except for a few

questions about obtaining a DNA sample from Petitioner on January

18, 2006. Id. at 395-97. On cross-examination, defense counsel

inquired about the detective’s opportunity to interview

Petitioner. Id. at 399. Defense counsel asked about the length

of the interview, whether Petitioner was read his rights and

understood those rights, whether Petitioner answered the

detective’s questions, and whether Petitioner was upset during the

interview. Id. at 399-400. Detective Sullivan responded

affirmatively to all of these questions. Id. When defense

counsel attempted to cross examine Detective Sullivan concerning

the events that happened, the prosecutor objected on the basis of

hearsay and the court sustained the objection. Id. at 400. When

a second attempt was made to inquire as to the information

Petitioner provided, another objection was made. Id.

The prosecutor expounded upon his objection: “[m]y objection

is the defendant can testify about anything he wants, but they

can’t elicit from this witness what the defendant said or what

they derived from the defendant because it’s all hearsay.” Id.

at 404. The court responded: “[i]ts self-serving.” Id. The

prosecutor said although the state could introduce it, the

defendant cannot get the statement in through another witness as

it is hearsay. Id. The court said it sounded like questions were

getting close, so the court sustained the state’s objection. Id.

The court told defense counsel he could ask other things, “other

things except his statements.” Id. When defense counsel tried

to inquire about the officer finding the knife based on

Petitioner’s answers to questions, the state objected again

stating it is hearsay. Id. at 404-405. The court ruled

Petitioner could ask around the issue but could not ask about

Petitioner’s statements as the statements would be hearsay. Id.

at 405. Defense counsel then asked the detective if an

investigation was going on at the scene as well as Petitioner being

interviewed, and the detective responded affirmatively, without

objection. Id. Defense counsel asked if Petitioner was

cooperative during the interview, and the detective responded

affirmatively. Id. at 405-406.

The state in its Rule 3.850 Response noted the trial court

sustained the state’s objections based upon hearsay. Ex. WW at

74. The state argued defense counsel was not ineffective because

counsel tried to elicit as much as he could from the detective,

“but the trial court properly ruled that the exculpatory statement

was inadmissible hearsay.” Id. The trial court, adopting the

state’s response (with exhibits), denied post-conviction relief.

Id. at 311-12. The 1st DCA affirmed. Ex. XX.

It is important to recognize that counsel’s advice to

Petitioner that he could not introduce Petitioner’s statement

without Petitioner taking the stand was absolutely correct as the

out-of-court exculpatory statement would be inadmissible hearsay.

Defense counsel was able to elicit helpful testimony from the

detective concerning Petitioner’s willingness to cooperate with

the police, his state of mind (being upset), the length of the

interview, and a few other non-statement matters through effective

cross examination. Otherwise, the state’s objections based on

hearsay were sustained. Defense counsel’s performance was not

deficient in this regard, nor was Petitioner prejudiced by

counsel’s performance.

The 1st DCA’s decision, although unexplained, is entitled to

AEDPA deference. Applying the look through presumption described

in Wilson, the state court’s ruling is based on a reasonable

determination of the facts and a reasonable application of the

law. Thus, the Florida court’s decision is not inconsistent with

Supreme Court precedent, including Strickland, and the state

court’s adjudication of the claim is not contrary to or an

unreasonable application of Strickland or based on an unreasonable

determination of the facts. Thus, ground nine is due to be denied.

GROUND TEN: INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL RENDERED

I.A.C. BY FAILING TO FILE A MOTION IN LIMINE TO PREVENT SPECULATION

ON WHAT SPATTER CONSTITUTED BLOOD.

Petitioner raised a comparable claim of ineffective

assistance of trial counsel in ground seven of his Rule 3.850

motion. Ex. WW at 14-15. Petitioner claimed, for his counsel to

be effective, he “should have filed a motion in limine to prevent

speculation or prejudicial inferences that all of the smears or

spatter was blood, where evidence to the contrary existed.” Id.

at 14. Petitioner added that counsel should have, at least,

objected to the testimony on blood spatter. Id. at 15. In a

detailed response, the state addressed Petitioner’s contention.

Id. at 75-78.

First and foremost, the record demonstrates defense counsel

did file a motion in limine. Ex. HH at 535-36. He sought to

prohibit the state from introducing any testimony of the state’s

witness, Michael Knox, as an expert in blood spatter analysis.

Id. at 535. Defense counsel added that Mr. Knox may intend to

recreate the crime scene, and he should not be allowed to testify

as to the crime scene. Id. The substance of the motion in limine

was taken up at trial. The state proposed that Mr. Knox would

testify as to the type of blood spatter and the direction of force.

Ex. II at 159. The court denied the motion in limine. Id. at

162. However, defense counsel added that he was not arguing that

the height and direction-of-force testimony was objectionable, but

he was concerned Mr. Knox would attempt to expand his testimony to

include descriptions of the victim crawling, sitting, and

kneeling. Id. at 163. The court agreed with defense counsel that

any testimony concerning the victim’s position would be kept out.

Id.

Thereafter, the court found Mr. Knox qualified as an expert.

Id. at 170. Mr. Knox provided testimony concerning height,

direction, and velocity of blood spatter. He did not testify as

to the victim’s position. He also testified there was food and

blood throughout the house.

The record shows defense counsel was successful in obtaining

a partial granting of his request to limit the testimony of the

expert, and he certainly attempted to further limit more of the

expert’s testimony. For example, on direct, defense counsel

objected when the expert attempted to testify about the swinging

of an item, and his objection was sustained. Id. at 193. Defense

counsel also objected to the expert’s speculative testimony

concerning the swing of a broom handle, and that objection was

sustained. Ex. JJ at 206.

The record also shows defense counsel very effectively cross-

examined the expert. The expert, on cross, admitted that a lot

of the items he tested were negative for blood. Id. at 221. The

expert attested that alternative light source testing was not

utilized. Id. The expert testified the victim’s clothes were not

tested for blood, nor were Petitioner’s. Id. at 222. The expert

testified there was food, including food of a reddish or brownish

color, scattered about. Id. at 222-23. The expert stated there

were food remnants on the blade of the knife found in the home.

Id. at 224. The expert testified he did not test some of the

spatter patterns for the presence of blood. Id. at 226. He did

attest there were two areas that were positive for blood. Id.

The trial court denied the Rule 3.850 motion. Ex. WW at 311-

12. The 1st DCA affirmed. Ex. XX. The 1st DCA’s decision,

although unexplained, is entitled to AEDPA deference. Applying

the look through presumption described in Wilson, the state court’s

ruling is based on a reasonable determination of the facts and a

reasonable application of the law. Thus, the Florida court’s

decision is not inconsistent with Supreme Court precedent,

including Strickland, and the state court’s adjudication of the

claim is not contrary to or an unreasonable application of

Strickland or based on an unreasonable determination of the facts.

Thus, ground ten is due to be denied.

Alternatively, the record demonstrates counsel performed

within the bounds of the standards of reasonableness. He filed a

motion in limine. After hearing defense counsel’s argument, the

court agreed to limit the expanse of the expert’s testimony.

Furthermore, defense counsel successfully objected to portions of

the expert’s testimony and effectively cross-examined the expert.

Any error of counsel was not so great that it adversely affected

the defense. Finally, Petitioner has not established prejudice

under Strickland. Petitioner is not entitled to habeas relief on

ground ten.

GROUND ELEVEN: INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL RENDERED

I.A.C. BY FAILING TO OBJECT AND/OR PRESERVE FOR APPEAL HIGHLY

INFLAMMATORY COMMENTS BY THE PROSECUTOR THAT PREJUDICED THE

OUTCOME OF THE TRIAL.

In his eleventh ground for relief, Petitioner raises a claim

of ineffective assistance of counsel for failure to object to

prosecutorial misconduct during closing argument. (Doc. 1-1 at

14). Petitioner contends the comments in question were

speculative, improperly bolstered the state’s case, played on the

sympathy of the jury, and constituted improper argument. Id. at

14-15.

Petitioner raised a comparable claim in his Rule 3.850 motion

in his eighth ground. Ex. WW at 15-18. The state responded,

relying on the guidelines of Strickland, and succinctly summarized

the comments Petitioner found objectionable: (1) it was not a

fight because only the victim was hit and was naked; (2) it was a

systematic killing and the defendant ensured the victim was going

to die; (3) the defendant ensured the victim could not call for

help by yanking the phone cords out of the wall; (4) the victim

could not testify because the defendant silenced her; (5) the

defendant was mad at the victim for returning to an ex-boyfriend;

(6) the defendant took a bath or shower after killing the victim;

(7) the victim did not enter the child’s room to ensure his safety;

(8) the victim cowered in the closet as she was struck by

defendant; (9) the defendant kept hitting the victim although she

could not breathe and had difficulty describing her pain when her

ribs punctured her lungs; (10) the defendant derived pleasure from

striking a naked woman; (11) the prosecutor told the jury they

could speculate regarding the evidence; and (12) the defendant

used multiple weapons. Ex. WW at 79.

The state argued none of these comments were objectionable;

therefore, Petitioner’s counsel was not ineffective for failure to

object to the content of the prosecutor’s argument. Id. at 82.

The state submitted these were reasonable conclusions drawn from

the evidence presented at trial and could be properly drawn from

this evidence. Id. at 82-83. “Thus, the objected to arguments

were merely inferences and conclusions that could be drawn from

the evidence that was presented.” Id. at 83. As such, the state

moved the court to deny the Rule 3.850 motion as Petitioner “failed

to demonstrate a legal deficiency in his attorney’s failure to

object to the State’s closing argument.” Id.

In addressing a claim of ineffective assistance of trial

counsel, this Court's inquiry is "whether, in light of all the

circumstances, the identified acts or omissions were outside the

wide range of professionally competent assistance." Strickland,

466 U.S. at 690. "[H]indsight is discounted by pegging adequacy

to 'counsel's perspective at the time' . . . and by giving a 'heavy

measure of deference to counsel's judgments.'" Rompilla v. Beard,

545 U.S. 374, 381 (2005) (citations omitted). The standard is

reasonably effective counsel, not the perfect assistance of

counsel.

Of importance, attorneys are allowed wide latitude during

closing argument as they review evidence and explicate inferences

which may reasonably be drawn from it. Tucker v. Kemp, 762 F.2d

1496, 1506 (11th Cir. 1985). In order to establish a substantial

error by counsel for failure to object to prosecutorial misconduct,

the prosecutor's "comments must either deprive the defendant of a

fair and impartial trial, materially contribute to the conviction,

be so harmful or fundamentally tainted as to require a new trial,

or be so inflammatory that they might have influenced the jury to

reach a more severe verdict than it would have otherwise." Walls

v. State, 926 So. 2d 1156, 1167 (Fla. 2006) (per curiam) (citation

omitted). Also, there must be a showing that there was no tactical

reason for failure to object. Id. Without a showing of the

above, a petitioner fails to demonstrate the requisite prejudice.

Id.

Failure to object during closing argument rarely amounts to

ineffective assistance of counsel, particularly if the errors, if

any, are insubstantial. Upon review, any failure on defense

counsel’s part to object to the state’s closing argument did not

contribute significantly to the verdict. Petitioner has failed

to show his counsel’s representation fell below an objective

standard of reasonableness. He has also failed to show there was

a reasonable probability that the results of the trial would have

been different but for the actions and/or omissions of his counsel.

Petitioner appealed the denial of his Rule 3.850 motion and

the 1st DCA affirmed. Ex. XX. Pursuant to Wilson, this Court

assumes the 1st DCA adopted the reasoning of the trial court in

denying post-conviction relief. No attempt to rebut this

presumption has been made by the state. The Court concludes

deference under AEDPA should be given to the last adjudication on

the merits provided by the 1st DCA. It is also this Court’s

conclusion the Florida court’s decision is not inconsistent with

Supreme Court precedent, including Strickland and its progeny.

The state court’s adjudication of this ground is not contrary to

or an unreasonable application of Strickland or based on an

unreasonable determination of the facts. Thus, ground eleven is

due to be denied.

GROUND TWELVE: INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL

RENDERED I.A.C. BY FAILING TO FILE A SUFFICIENT MOTION FOR NEW

TRIAL ON THE WEIGHT AND/OR SUFFICIENCY OF THE EVIDENCE.

Petitioner, in his supporting facts for this ground, states

that although his counsel did file a motion for new trial, it was

deficient because it “failed to point-out sufficient facts[.]”

(Doc. 1-1 at 18). Petitioner raised a comparable claim in ground

nine of his Rule 3.850 motion. Ex. WW at 19-20. The state

responded. Of import, the state highlighted the fact that defense

counsel filed a detailed and well-reasoned motion for a new trial.

The record supports this contention. Ex. HH at 561-63. Not only

did Petitioner’s counsel argue that the trial court erred in

denying the motion for judgment of acquittal, he also argued that

the trial court erred in limiting the cross examination of Dr.

Scheuermann and Detective Sullivan. Id. at 561-62. Defense

counsel further claimed the trial court erred in not granting the

motion for judgment of acquittal at the close of the evidence.

Id. at 562. Counsel urged the court to find the verdict contrary

to the weight of the evidence and to law. Id. The trial court

denied the motion for new trial. Id. at 575, 602.

The state in its Rule 3.850 Response noted Petitioner’s

argument supporting this ground for relief is essentially a re-

cap, a cumulative error argument, re-raising the issues raised in

grounds one through eight of the Rule 3.850 motion, which were

individually rejected by the trial court. Ex. WW at 85. As such,

“[w]here allegations of individual error are found to be without

merit, . . ., a cumulative error argument based thereon must fail

also.” Id. at 86 (citation omitted). The state further noted,

as the underlying claims lacked merit, counsel’s performance could

not be deemed deficient for failure to raise the same claims in a

motion for new trial. Id. (citation omitted). Finally, the state

argued, a speculative claim that a more elaborate motion for new

trial would have convinced the trial court to grant the motion for

new trial should not prevail as Petitioner “failed to demonstrate

any individual error demonstrating a legal deficiency by his

attorney, or prejudice to himself[.]” Id.

The trial court denied relief. Id. at 311-12. The 1st DCA

affirmed per curiam. Ex. XX.

Notably, the record shows defense counsel did not submit a

formulaic motion for new trial. Instead, he presented a detailed

and well supported motion. His performance did not fall below an

objective standard of reasonableness. Speculation cannot be the

foundation of the claim of ineffective assistance of counsel, and

Petitioner’s suppositions do not satisfy the performance prong of

Strickland. Moreover, Petitioner has not shown that the outcome

would have changed had defense counsel included the issues

Petitioner suggests should have been raised in the motion for new

trial, particularly in light of the fact that the issues

individually did not carry the day.

There is no expectation that competent counsel will be

flawless in his performance. Richter, 562 U.S. at 110. To

demonstrate ineffectiveness, a petitioner must show his counsel’s

choice was so patently unreasonable that no competent attorney

would have chosen that path. Also, it is clear that the outcome

would not have changed had counsel performed as Petitioner claims

he should have. In sum, defense counsel’s representation was not

so filled with serious errors that counsel was not functioning as

counsel guaranteed by the Sixth Amendment. Petitioner has neither

satisfied the performance or prejudice prong of Strickland. As

such, Petitioner is not entitled to habeas relief on ground twelve.

Deference under AEDPA should be given to the last adjudication

on the merits provided by the 1st DCA. The Florida court’s

decision is not inconsistent with Supreme Court precedent,

including Strickland and its progeny, and the court’s adjudication

of this claim is not contrary to or an unreasonable application of

Strickland or based on an unreasonable determination of the facts.

Ground twelve is due to be denied.

GROUND THIRTEEN: INEFFRECTIVE ASSISTANCE OF COUNSEL: COUNSEL

RENDERED I.A.C. BY FAILING TO OBJECT TO THE COURT’S FAILURE TO

APPLY THE LAW OF THE CASE AND THE IMPROPER SHIFTING OF THE BURDEN

OF PROOF TO MONTGOMERY TO PROVE THAT THE KILLING WAS NOT AN ACT OF

JUSTIFIABLE HOMICIDE.

Petitioner raised a comparable claim in ground ten of his

Rule 3.850 motion. Ex. WW at 21-22. The state responded. Id.

at 87-89. Adopting this response, the trial court denied relief.

Id. at 311-12. The 1st DCA affirmed. Ex. XX.

It is important to recognize the underlying claim, the claim

upon which the claim of ineffective assistance of counsel is based,

was raised and rejected on direct appeal. As Issue I of the direct

appeal, Petitioner claimed the trial court committed fundamental

error by failing to apply the law of the case and imposing upon

appellant the burden to prove the killing was not an act of

justifiable homicide. Ex. PP. at i. The state responded and

argued the jury was correctly given the standard jury instruction

on justifiable and excusable homicide, without objection from

defense counsel, and the jury was separately instructed on self-

defense. Ex. QQ at 21. See Ex. KK, Trial Transcript at 489-98.

The state further noted defense counsel affirmatively accepted the

instructions. Ex. QQ at 16-17.

Significantly, in the Response at 92, Respondents point out,

in Elliot v. State, 49 So. 3d 269 (Fla. 1st DCA 2010) (per curiam),

the court rejected the underlying claim the instructions were

erroneous. In Elliot, the trial court gave the standard

instructions on excusable and justifiable homicide and on burden

of proof. Id. at 270. It further noted,

this Court recently found no error where the

jury was not specifically instructed that the

State had the burden to disprove self-defense

beyond a reasonable doubt. See Mosansky v.

State, 33 So.3d 756, 758-59 (Fla. 1st DCA

2010) (holding that where a challenged jury

instruction involves an affirmative defense,

as opposed to an element of the crime,

fundamental error only occurs where a jury

instruction is so flawed as to deprive

defendants claiming the defense of a fair

trial).

Elliot v. State, 49 So. 3d at 270 (emphasis added).

A defense counsel need not make meritless motions or lodge

futile objections that would not have obtained relief. Brewster,

913 F.3d 1056 (citations omitted). Under these circumstances,

defense counsel would not have prevailed through an objection, as

evinced by the decision of the trial court in denying post-

conviction relief. Ex. WW at 311-12. Just as excusable and

justifiable homicide not elements of the offense of second degree

murder, neither is self-defense an element of the offense, rather

it is an affirmative defense, and the instructions were not

erroneous as given.

Petitioner has failed to satisfy the Strickland requirements

and he is not entitled to habeas relief on ground thirteen. The

affirmance of the trial court’s decision is entitled to deference.

The 1st DCA affirmed the decision of the trial court. Ex. XX.

Applying Wilson’s look-through presumption, the rejection of the

claim of ineffective assistance of counsel for failure to object

to the jury instructions was based on a reasonable determination

of the facts and a reasonable application of Strickland. Finally,

the Florida court’s decision is not inconsistent with Supreme court

precedent nor is it contrary to Strickland. Accordingly,

Petitioner is not entitled to habeas relief on ground thirteen.

GROUND FOURTEEN: INEFFECTIVE ASSISTANCE OF COUNSEL: COUNSEL

RENDERED I.A.C. BY FAILING TO REQUEST THE STANDARD JURY INSTRUCTION

FOR SECTION 776.013(3)(F) FLORIDA STATUTES AND FAILED TO OBJECT TO

SECTION 3.6(F) WHICH IMPOSES A DUTY TO RETREAT, BOTH CLEARLY

CONFLICT WITH EACH OTHER AND LIKELY CONFUSED THE JURY.

In his final ground, Petitioner raises another claim of

ineffective assistance of counsel, this time asserting his

counsel’s performance was deficient for failure to object to

allegedly conflicting instructions on “justifiable use of deadly

force” (which Petitioner claims imposed a duty to retreat), and

the stand-your-ground instruction. (Doc. 1-1 at 22-23).

Petitioner raised a comparable claim in ground eleven of his Rule

3.850 motion. Ex. WW at 23-24.

A review of the trial court’s instructions is in order. The

court instructed the jury on self-defense:

An issue in the case is whether the

defendant acted in self-defense. It is a

defense to the offense with which Steven

Montgomery is charged if the death of Tarnesha

Ellis resulted from the justifiable use of

deadly force.

Deadly force means force likely to cause

death or great bodily harm.

The use of deadly force is justifiable

only if the defendant reasonably believes that

the force is necessary to prevent imminent

death or great bodily harm to himself while

resisting, one, another’s attempt to murder

him or, number two, an attempt to commit an

aggravated assault upon him or, three, an

attempt to commit an aggravated assault upon

any dwelling, residence or vehicle occupied by

him.

Ex. KK at 494.

The court provided further instruction in pertinent part:

In deciding whether the defendant is

justified in the use of deadly force you must

judge him by the circumstances by which he was

surrounded at the time the force was used.

The danger facing the defendant need not

have been actual. However, to justify the use

of deadly force the appearance of danger must

have been so real that a reasonably cautious

and prudent person under the same

circumstances would have believed the danger

would have been avoided only through the use

of that force. Based upon appearances the

defendant must have actually believed that the

danger was real.

If the defendant was not engaged in an

unlawful activity and was attacked in any

place where he had a right to be he had no

duty to retreat and had the right to stand his

ground and meet force with force including

deadly force if he reasonably believed that it

was necessary to do so to prevent death or

great bodily harm to himself or to prevent the

commission of a forcible felony.

In considering the issue of self-defense

you may take into account the relative

physical abilities and capacities of the

defendant and Tarnesha Ellis.

If in your consideration of the issue of

self-defense you have a reasonable doubt on

the question of whether the defendant was

justified in the use of deadly force you

should find the defendant not guilty.

However, if from the evidence you’re convinced

the defendant was not justified in the use of

deadly force you should find him guilty if all

the elements of the charge have been proved.

Id. at 495-96 (emphasis added).

Of import Petitioner raised the underlying claim of trial

court error on direct appeal. Ex. PP at i. The state responded:

There was no inconsistency in the jury

instructions. Read together, they imply a

person with no duty to retreat still has a

duty to use deadly force only if reasonably

necessary. Just because retreat is no longer

the first option by law, does not mean

unreasonably [sic] deadly force is

automatically excused.

Ex. QQ at 25. The state urged the 1st DCA to consider and address

the instructions as a whole and deny relief. Id. at 27 (“Under

the self-defense instruction as a whole, the jury was correctly

told Montgomery did not have to retreat if he were acting lawfully

in a place he had a right to be, but he first had to use other

reasonable means to ‘avoid’ deadly force.”). The 1st DCA affirmed

per curiam. Ex. SS.

The trial court denied the Rule 3.850 motion raising the claim

of ineffective assistance of counsel for failure to object to the

instructions given or to request particular instructions. Ex. WW

at 311-12. The 1st DCA affirmed. Ex. XX. In doing so, the

Florida court rejected Petitioner’s contention that his counsel

was ineffective for failing to request instructions and/or object

to the instructions given. Of course, the state courts are the

expositors of state law and the state courts found no error in the

manner in which the jury was instructed. Bradshaw v. Richey, 546

U.S. 74, 76 (2005) (per curiam) (“We have repeatedly held that a

state court's interpretation of state law, including one announced

on direct appeal of the challenged conviction, binds a federal

court sitting in habeas corpus.”) (citations omitted). Counsel

will not be found ineffective for failing to raise a meritless

objection or for failure to request instructions when the

instructions given were without error. Petitioner has failed to

satisfy both the performance and prejudice prong of Strickland and

he is not entitled to habeas relief on his final ground.

Pursuant to Wilson, this Court assumes the 1st DCA adopted

the reasoning of the trial court in rejecting Petitioner’s claim

and denying post-conviction relief. The Court concludes deference

under AEDPA should be given to the 1st DCA’s last adjudication on

the merits. The Florida court’s decision is not inconsistent with

Supreme Court precedent, including Strickland and its progeny.

The state court’s adjudication of this ground is not contrary to

or an unreasonable application of Strickland or based on an

unreasonable determination of the facts. Thus, ground fourteen

is due to be denied.

Accordingly, it is now

ORDERED AND ADJUDGED:

1. The Petition for Writ of Habeas Corpus (Doc. 1) is

DENIED.

2. This action is DISMISSED WITH PREJUDICE.

3. The Clerk shall enter judgment accordingly and close

this case.

4. If Petitioner appeals the denial of his Petition for

Writ of Habeas Corpus (Doc. 1), the Court denies a certificate of

appealability. ° Because this Court has determined that a

certificate of appealability is not warranted, the Clerk shall

terminate from the pending motions report any motion to proceed on

appeal as a pauper that may be filed in this case. Such

termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida, this 10th day of

April, 2020.

4 De

af J. DAVIS

United States District Judge

sa 4/6

Cc:

Steven Willie Montgomery

Counsel of Record

® This Court should issue a certificate of appealability only if a

petitioner makes "a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253 (2). To make this

substantial showing, Petitioner "must demonstrate that reasonable

jurists would find the district court's assessment of the

constitutional claims debatable or wrong," Tennard v. Dretke, 542

U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)), or that "the issues presented were ‘adequate to deserve

encouragement to proceed further,'" Miller-El v. Cockrell, 537

U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)). Upon due consideration, this Court will

deny a certificate of appealability.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.