Jossey v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LARRY G. JOSSEY, JR.,

Petitioner,

vs. Case No. 3:18-cv-464-J-39JBT

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

ORDER

I. INTRODUCTION

Larry G. Jossey, Jr., a petitioner proceeding pro se,

challenges his state court (Duval County) conviction for armed

robbery through a Petition Under 28 U.S.C. § 2254 for Writ of

Habeas Corpus By a Person in State Custody (Petition) (Doc. 1).

He raises eight grounds seeking post-conviction relief.

Respondents filed an Answer to Petition for Writ of Habeas Corpus

(Response) (Doc. 19).1 Petitioner filed a notice that he does not

intend to file a reply (Doc. 22). See Order (Doc. 8).

1 The Court will reference the page number assigned by the

electronic filing system with respect to all documents and

exhibits.

II. EVIDENTIARY HEARING

Petitioner carries 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). Petitioner has not met this burden.

The Court finds it 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).

Thus, Petitioner 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 6. Respondents

contend ground one is unexhausted and procedurally barred. Id.

at 18-19.

IV. HABEAS REVIEW

Through his Petition, Petitioner claims he is detained “in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3). The 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), petition

2

for cert. filed, (U.S. Apr. 20, 2019) (No. 19-8341). 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, 954 F.3d 1338, 1354 (11th Cir. 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).

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

3

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

4

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, 954 F.3d

at 1354 (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

5

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, 954

F.3d at 1354 (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. EXHAUSTION AND PROCEDURAL DEFAULT

The doctrine of procedural default requires the following:

Federal habeas courts reviewing the

constitutionality of a state prisoner's

conviction and sentence are guided by rules

designed to ensure that state court judgments

are accorded the finality and respect

necessary to preserve the integrity of legal

proceedings within our system of federalism.

These rules include the doctrine of procedural

default, under which a federal court will not

review the merits of claims, including

constitutional claims, that a state court

declined to hear because the prisoner failed

to abide by a state procedural rule. See,

6

e.g., Coleman,[2] supra, at 747-748, 111 S.

Ct. 2546; Sykes,[3] supra, at 84-85, 97 S. Ct.

2497. A state court's invocation of a

procedural rule to deny a prisoner's claims

precludes federal review of the claims if,

among other requisites, the state procedural

rule is a nonfederal ground adequate to

support the judgment and the rule is firmly

established and consistently followed. See,

e.g., Walker v. Martin, 562 U.S. ----, ----,

131 S. Ct. 1120, 1127-1128, 179 L.Ed.2d 62

(2011); Beard v. Kindler, 558 U.S.----, ----,

130 S. Ct. 612, 617-618, 175 L.Ed.2d 417

(2009). The doctrine barring procedurally

defaulted claims from being heard is not

without exceptions. A prisoner may obtain

federal review of a defaulted claim by showing

cause for the default and prejudice from a

violation of federal law. See Coleman, 501

U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012) (emphasis added).

A petition for writ of habeas corpus should not be entertained

unless the petitioner has first exhausted his state court remedies.

Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455

U.S. 509 (1982). A procedural default arises "when 'the

petitioner fails to raise the [federal] claim in state court and

it is clear from state law that any future attempts at exhaustion

would be futile.'" Owen v. Sec'y, Dep't of Corr., 568 F.3d 894,

908 n.9 (11th Cir. 2009) (quoting Zeigler v. Crosby, 345 F.3d 1300,

1304 (11th Cir. 2003)), cert. denied, 558 U.S. 1151 (2010).

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

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

7

There are, however, allowable exceptions to the procedural

default doctrine; "[a] prisoner may obtain federal review of a

defaulted claim by showing cause for the default and prejudice

from a violation of federal law." Martinez, 566 U.S. at 10

(citing Coleman, 501 U.S. at 750). To demonstrate cause, a

petitioner must show some objective factor external to the defense

impeded his effort to properly raise the claim in state court.

Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.), cert. denied, 528

U.S. 934 (1999). If cause is established, a petitioner must

demonstrate prejudice. To demonstrate prejudice, a petitioner

must show "there is at least a reasonable probability that the

result of the proceeding would have been different had the

constitutional violation not occurred." Owen, 568 F.3d at 908.

Alternatively, a petitioner may obtain review of a

procedurally barred claim if he satisfies the actual innocence

“gateway” established in Schlup v. Delo, 513 U.S. 298 (1995). The

gateway exception is meant to prevent a constitutional error at

trial from causing a miscarriage of justice and conviction of the

actually innocent. Kuenzel v. Comm’r, Ala. Dep’t of Corr., 690

F.3d 1311, 1314 (11th Cir. 2012) (per curiam) (quoting Schlup, 513

U.S. at 324), cert. denied, 569 U.S. 1004 (2013).

8

VI. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

Petitioner raises several claims of ineffective assistance of

trial counsel. To prevail on a Sixth Amendment claim, he 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,

9

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.

VII. THE GROUNDS

GROUND ONE: The principal instruction was fundamentally erroneous

in violation of the Sixth and Fourteenth Amendments.

Petitioner asserts he exhausted this ground on direct appeal.

Petition at 6. The record demonstrates that in Issue I of the

direct appeal brief, Petitioner alleged the principal instruction

was fundamentally erroneous. (Doc. 19-3 at 266-270, 347-350).

Upon review, although Petitioner claimed fundamental error in the

jury instructions, he did not raise a claim of constitutional

deprivation under the Sixth or Fourteenth Amendments of the United

States Constitution in the state court. Id.

In addressing the question of exhaustion, the district court

must ask whether the claim was raised in the state court

proceedings and whether the state court was alerted to the federal

nature of the claim:

Before seeking § 2254 habeas relief in federal

court, a petitioner must exhaust all state

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court remedies available for challenging his

conviction. See 28 U.S.C. § 2254(b), (c). For

a federal claim to be exhausted, the

petitioner must have "fairly presented [it] to

the state courts." McNair v. Campbell, 416

F.3d 1291, 1302 (11th Cir. 2005). The Supreme

Court has suggested that a litigant could do

so by including in his claim before the state

appellate court "the federal source of law on

which he relies or a case deciding such a claim

on federal grounds, or by simply labeling the

claim 'federal.'" Baldwin v. Reese, 541 U.S.

27, 32, 124 S. Ct. 1347, 158 L.Ed.2d 64 (2004).

The Court's guidance in Baldwin "must be

applied with common sense and in light of the

purpose underlying the exhaustion

requirement"-namely, giving the state courts

"a meaningful opportunity" to address the

federal claim. McNair, 416 F.3d at 1302. Thus,

a petitioner could not satisfy the exhaustion

requirement merely by presenting the state

court with "all the facts necessary to support

the claim," or by making a "somewhat similar

state law claim." Kelley,[4] 377 F.3d at 134-

44. Rather, he must make his claims in a manner

that provides the state courts with "the

opportunity to apply controlling legal

principles to the facts bearing upon (his)

[federal] constitutional claim." Id. at 1344

(quotation omitted).

Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351-52 (11th Cir.

2012), cert. denied, 568 U.S. 1104 (2013).

On direct appeal, Petitioner failed to reference the federal

source of law or any case deciding the claim on federal grounds,

and he did not label the claim as federal. Thus, Petitioner never

4 Kelley v. Sec’y for the Dep’t of Corr., 377 F.3d 1317 (11th Cir.

2004), cert. denied, 545 U.S. 1149 (2005).

11

gave the state court a meaningful opportunity to address either a

Sixth Amendment or Fourteenth Amendment federal constitutional

claim.

After a thorough review of the record before the Court, the

Court concludes Petitioner failed to exhaust a Sixth Amendment or

Fourteenth Amendment claim in the state courts. It is clear from

state law that any future attempts at exhaustion of this ground

would be futile. As such, Petitioner has procedurally defaulted

this ground for relief. Petitioner has failed to show cause and

prejudice or that a fundamental miscarriage of justice will result

if the Court does not reach the merits of ground one.

Consequently, ground one is due to be denied.

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 19-20. 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

12

violation. 5 Moreover, the 1st DCA addressed Petitioner’s

contention that the 1st DCA should find error in Florida’s standard

jury instruction on principals, and in affirming with an opinion,

the 1st DCA found Petitioner failed to establish fundamental error

and denied relief. (Doc. 19-4 at 39-40).

As noted by Respondents, Florida’s interpretation of its own

jury instructions is not subject to federal habeas review.

Therefore, in an alternative ruling, the Court finds Petitioner’s

claim that the jury instruction on principals was fundamentally

erroneous is not cognizable in this proceeding and ground one is

due to be denied.

GROUND TWO: The jury’s verdict was ambiguous and must be construed

to reject the claim that Petitioner actually or personally carried

a firearm during the commission of the offense.

Petitioner raised this claim in Issue II of his direct appeal.

(Doc. 19-3 at 271-79). Respondents assert this is not a cognizable

federal claim. Response at 22-23. Indeed, it is quite apparent

Petitioner presented a state law claim in ground two. Id. at 23-

24. This Court should refrain from addressing state law claims.

It is not the province of this Court to reexamine a state-court

5 “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).

13

determination on issues of state law. Estelle. As there has been

no breach of a federal constitutional mandate, this Court is bound

by the Florida court’s decision. Petitioner is not entitled to

habeas relief on ground two. Ross v. McDonough, No. 5:08-cv-188-

MCR-AK, 2008 WL 2704502, at *5 (N.D. Fla. July 3, 2008) (finding

no constitutional basis for the claim that the verdict was

ambiguous and recognizing the state court’s findings highlight the

state law nature of the claim).

GROUND THREE: The Prison Releasee Reoffender statute violates

Apprendi and Alleyne.

In this ground, Petitioner claims the Prison Releasee

Reoffender (PRR) statute violates Apprendi6 and Alleyne7 as it

requires the trial court to make a number of factual findings,

findings which, Petitioner asserts, should be submitted to a jury

pursuant to Supreme Court law. Petition at 9. In his supporting

facts, Petitioner contends the trial court erred in its failure to

submit the PRR predicate findings to a jury. Id.

Petitioner raised a comparable claim in ground one of his

Rule 3.800(b)(2) motion to correct sentencing error (Doc. 19-3 at

213-28). The trial court, in its Order Denying Defendant’s Motion

6 Apprendi v. New Jersey, 530 U.S. 466 (2000).

7 Alleyne v. United States, 133 S. Ct. 2151 (2013).

14

to Correct Sentencing Error, denied this claim on its merits. Id.

at 229-32. The court initially found Petitioner was convicted and

sentenced for armed robbery (“Foremost, Defendant was convicted

and sentenced for armed robbery.”). Id. at 230. The court then

explained its reasoning for denying relief:

In the instant case, the trial judge

imposed a mandatory minimum term of life upon

Defendant solely based on Defendant’s status

as a recidivist felon. The Florida Supreme

Court has held that the sentencing enhancement

scheme found in the PRR Act, under which

Defendant received his life mandatory minimum

sentence, is unaffected by Apprendi. Gudinas

v. State, 879 So. 2d 616, 618 (Fla. 2004)

(holding that Florida’s PRR statute is not

invalidated by Apprendi); see Robinson v.

State, 793 So. 2d 891, 893 (Fla. 2001).

Likewise, Alleyne does not affect the validity

of the PRR statute, and Defendant’s PRR

sentence is unaffected. See Swatzie, 2013 WL

5566488, at *1.

Moreover, “’proof to the jury of a

defendant’s release which subjects a defendant

to a sentence under the [PRR] Act is not

required.’” Gudinas, 879 So. 2d at 618

(quoting Robinson, 793 So. 2d at 893). For

the PRR mandatory sentencing to be imposed,

the State is required by statute to prove a

defendant is a PRR by a preponderance of

evidence. § 775.082(9)(a)3; see Ellington v.

State, 96 So. 3d 1131, 1131 (Fla. 1st DCA 2012)

(“It is well-settled that, once the State

proves by a preponderance of the evidence that

a defendant qualifies as a prison releasee

reoffender, the trial court must sentence the

defendant in accordance with the provisions of

section 775.082(9), Florida Statutes.”). The

court’s decision in Alleyne did not change the

15

standard of proof required for a PRR

designation. See Chester v. Warden, No. 12-

15119, 2014 WL 104150, at *4 (11th Cir. Jan.

13, 2014) (reiterating that “recidivism is not

an element of an offense that must be proved

to a jury beyond a reasonable doubt”).

(Doc. 19-3 at 231-32). In its conclusion, the court found:

Conclusively, as of the date of this

Order, neither the Florida Supreme Court nor

the United States Supreme Court has determined

that Florida’s recidivist statutes, sections

775.082 and 775.084, are unconstitutional as

applied to mandatory minimum punishments.

The Court, therefore, finds that Alleyne is

inapplicable to the instant case and declines

to overturn Defendant’s PRR portion of his

sentence. Thus, Defendant’s argument in this

construed ground for relief is without merit

and is denied.

(Doc. 19-3 at 232).

Petitioner also raised a similar claim in Issue III of his

direct appeal (Doc. 19-3 at 248, 279-83). The First District

Court of Appeal (1st DCA) affirmed. (Doc. 19-4 at 39-40).

The record demonstrates the following. The state filed a

Notice of Intent to Classify Defendant as a Prison Release Re-

Offender, announcing the state’s intent to rely on Petitioner’s

prior conviction and sentence (Duval County) for Driving While

License Suspended or Revoked as a Habitual Traffic Offender on May

4, 2009, and stating Petitioner was released from incarceration

within three years of the date of the commission of the newly

16

charged crimes. (Doc. 19-1 at 37). At sentencing, on July 9,

2013, the state apprised the trial court that the state had filed

a PRR notice. (Doc. 19-2 at 107). In its sentencing decision,

the court referenced the exhibits, prior judgments and sentences,

including one for possession of cocaine and driving while license

suspended or revoked from 2009. Id. at 107. The court noted the

state had also provided the court with a record from the Florida

Department of Corrections showing Petitioner’s most recent release

date of April 15, 2010. Id. at 107-108. The defense announced

it would not present any argument as the sentence the court “must

impose is mandatory[.]” Id. at 114. The state also said it would

not present argument as “[m]andatory life is the only sentence

available to the Court.” Id. at 115. The court, recognizing

Petitioner had been convicted by a jury of armed robbery and

finding that based upon the documentation introduced by the state

that Petitioner is a PRR recently released from prison on April

15, 2010 with a new crime date of February 1, 2012, sentenced

Petitioner to life as a PRR. Id. at 116. The court entered

judgment and sentence on July 9, 2013. Id. at 45-51. The sentence

reflects Petitioner is a PRR sentenced to life in prison. Id. at

48-51.

17

Respondents assert Petitioner cannot establish the trial

court’s decision denying this claim for relief was contrary to or

in violation of federal constitutional law. Response at 32. The

record demonstrates the trial court relied on the records submitted

to the court. Moncus v. State, 69 So. 3d 341, 343 (Fla. 4th DCA

2011) (certified copies and official court records required for

enhancement purposes); Slade v. State, 898 So. 2d 120 (Fla. 4th

DCA 2005) (per curiam) (affirming reliance on record evidence of

certified copies of convictions and court files to support finding

of habitual offender status). The state court’s decision

rejecting Petitioner’s claim is supported by the record and the

law.

To the extent Petitioner is claiming he did not get fair

notice, the record shows otherwise. The state filed the required

notice. Not only did the court receive evidence of Petitioner’s

prior conviction, it also received evidence that Petitioner was

released from prison within three years of the date of the offense

(armed robbery) for which he was convicted.

As noted by Respondents, Response at 33, as the Supreme Court

refused to re-address Almendarez-Torres v. United States, 523 U.S.

224 (1998), it is still the governing law;8 therefore, Petitioner’s

8 Although there is a risk that Almendarez-Torres may be overruled

18

sentence, based on his prior felony conviction and his release

date from prison, will not be revisited by this Court. United

States v. Boatley, 551 F. App’x 535, 536 (11th Cir.) (per curiam),

cert. denied, 572 U.S. 1040 (2014). See United States v. Harris,

741 F.3d 1245, 1250 (11th Cir. 2014) (recognizing the tension

between Almendarez-Torres and Alleyne and Apprendi, but

acknowledging the court is bound to follow Almendarez-Torres). As

explained in Williams v. State, 143 So. 3d 423, 424 (Fla. 1st DCA

2014),

“The touchstone for determining whether

a fact must be found by a jury beyond a

reasonable doubt is whether the fact

constitutes an ‘element’ or ‘ingredient’ of

the charged offense.” Alleyne, ––– U.S. at ––

––, 133 S. Ct. at 2158 (emphasis added). The

key fact pertinent to PRR sentencing—whether

the defendant committed the charged offense

within three years of release from prison—is

not an ingredient of the charged offense.

Rather, it relates to the fact of a prior

conviction.

Accordingly, we hold that Alleyne does

not require a jury to make the PRR factual

determination. See Lopez v. State, 135 So.3d

539 (Fla. 2d DCA 2014).

This Court and other federal courts have reached similar

conclusions, finding comparable state court adjudications

at some point, to date, it is still governing law. Thus, this

Court is bound by Almendarez-Torres.

19

concerning denial of relief on claims asserting a jury did not

find the date of release from custody not to be contrary to or an

unreasonable application of federal law. McGriff v. Sec’y, Dep’t

of Corr., No. 3:15-cv-1281-J-39JBT, 2018 WL 354956, at *6 (M.D.

Fla. Jan. 10, 2018) (“the fact that Petitioner committed his

offenses within three years of being released from the FDOC is

analogous to the fact of a prior conviction as it demonstrates

recidivism”); Hackley v. Inch, No. 4:17-cv435-WS/CAS, 2019 WL

1548583, at *15 (N.D. Fla. Jan. 28, 2019) (the fact of release

from custody is subsumed within the prior conviction exception in

Apprendi), report and recommendation adopted by 2019 WL 1548575

(N.D. Fla. April 9, 2019).

Moreover, error, if any, would have been subject to harmless

error analysis as failure to submit a sentencing factor to the

jury is a non-structural error. Washington v. Recuenco, 548 U.S.

212, 218-19 (2006). See United States v. King, 751 F.3d 1268,

1279 (11th Cir.) (Apprendi-type errors and extensions of Apprendi

are subject to harmless error review), cert. denied, 574 U.S. 946

(2014). As such, in affirming, even if the 1st DCA, sub silentio,

agreed that a jury should have made the finding, the error would

have been subject to harmless error analysis and denial on that

ground would have not been an unreasonable application of any

20

federal law. “Because we review errors under Apprendi and its

progeny [including Alleyne] for harmless error,” these types of

errors are subject to harmless error review. King, 751 F.3d at

1279. Thus, ground three is due to be denied.

Petitioner is not entitled to relief on this ground because

the state court’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 based on the evidence presented in the

state court proceedings. Therefore, ground three is due to be

denied. The Court concludes AEDPA deference is due and Petitioner

is not entitled to federal habeas relief.

GROUND FOUR: Ineffective assistance of trial counsel for failure

to object to and preserve for appellate review the erroneous jury

instruction on principals.

In this ground, Petitioner asserts his trial counsel was

ineffective for failure to object to the trial court’s instruction

that permitted the jury to find Petitioner guilty of armed robbery

under the principal theory without the jury having to consider

whether or not Petitioner knew in advance that a co-defendant would

use a firearm. Petition at 11. He raised a comparable claim in

ground one of his Rule 3.850 motion. (Doc. 19-4 at 65-69). The

circuit court rejected this claim finding the issue had previously

21

been raised and addressed on direct appeal and concluding

Petitioner may not relitigate procedurally barred claims by

couching the claims in terms of ineffective assistance of counsel.

Id. at 88-89. The 1st DCA affirmed per curiam. Id. at 151.

On direct appeal, after noting there was no objection below

to the standard jury instruction on principals, the 1st DCA opined

Petitioner did not establish fundamental error and declined to

reach the issue raised on appeal. Id. at 39-40. In his appeal

brief, Petitioner asked the 1st DCA to apply the reasoning of

Rosemond v. United States, 572 U.S. 65 (2014) to find error in the

standard instruction because it allowed a defendant to be convicted

as a principal for robbery with the use of a firearm based upon

evidence that he intended that the robbery be committed without

requiring any showing that the defendant intended that a firearm

be used.

In their Response at 44, Respondents contend, “[b]ecause the

Court found no fundamental error, [the defendant] fails to

demonstrate that counsel's failure to object to the comments

resulted in prejudice sufficient to undermine the outcome of the

trial under Strickland.” Lowe v. State, 2 So.3d 21, 38 (Fla.

2008) (per curiam). See Clarke v. State, 102 So. 3d 763, 764-65

(Fla. 2012) (per curiam) (the affirmance with opinion reveals the

22

court found no fundamental error occurred, as such, the defendant

fails to demonstrate counsel’s failure resulted in prejudice

sufficient for Strickland purposes); Braddy v. State, 219 So. 3d

803, 823 (Fla. 2017) (per curiam) (same, finding counsel’s failure

insufficient to undermine the outcome of the trial under

Strickland).

In this instance, the Florida court, the 1st DCA, determined

the alleged error was not shown to be fundamental; therefore, this

Court “must defer to the ‘Florida court’s underlying

determinations of state law.’” Pinkney v. Sec’y, DOC, 876 F.3d

1290, 1297-98 (11th Cir. 2017), cert. denied, 139 S. Ct. 193

(2018). Thus, even if the giving of the challenged instruction

was error, it was not fundamental error. Therefore, Petitioner

has failed to demonstrate any failure on counsel’s part to object

to the standard instruction resulted in prejudice sufficient for

Strickland purposes. As such, Petitioner cannot prevail on his

claim of ineffective assistance of counsel since he has failed to

satisfy one of the Strickland prongs: the prejudice prong.

Brewster, 913 F. 3d at 1056 (reviewing court may begin with either

component).

The Court is also not convinced Petitioner has shown his

counsel performed deficiently by failing to object to the

23

instruction that permitted the jury to find Petitioner guilty of

armed robbery under the principal theory without the jury having

to consider whether or not Petitioner knew in advance that a co-

defendant would use a firearm. The trial record demonstrates the

state proved facts sufficient to support a principal instruction.

Consequently, counsel was not ineffective for failure to make an

objection to the Florida standard principal instruction. Under

Strickland, the standard is reasonable performance, not

perfection. Brewster, 913 F.3d at 1056 (citation omitted).

Counsel’s actions were well within the scope of permissible

performance. This is particularly so since the decision in

Rosemond, 572 U.S. at 67, upon which Petitioner relies for his

argument that trial counsel performed deficiently for failure to

object to the standard jury instruction, was not rendered until

March 5, 2014, long after Petitioner was convicted and sentenced

on July 9, 2013. (Doc. 19-2 at 45-51. Trial counsel are not

expected to predict the future to be considered effective counsel.

Indeed, “[d]efense counsel is competent if he acts upon the law as

it exists at the time of the trial, and has no duty to predict the

future.” Byrd v. McNeil, No. 3:06-cv-1115-J-33HTS, 2008 WL

2025316, at *14 (M.D. Fla. May 9, 2008) (citation omitted) (finding

sufficient proof for the state to argue either theory of guilt and

24

the case the petitioner relied upon to assert otherwise was decided

after the trial and counsel had no duty to predict the future).

In conclusion, the Court is not convinced defense counsel’s

performance fell below an objective standard of reasonableness

through failure to object to the standard jury instruction. Thus,

Petitioner has not satisfied the performance prong of Strickland.

Without satisfying the performance prong of Strickland, Petitioner

cannot prevail on his claim of ineffective assistance of counsel.

Ground four is due to be denied and Petitioner is not entitled to

habeas relief on this ground.

GROUND FIVE: The ineffective assistance of counsel for failure

to move to set aside general verdict.

In the supporting facts for this ground, Petitioner states

the jury was presented with alternative theories under which it

could convict Petitioner of armed robbery, the first being based

on evidence presented from the testimony of two co-defendants, and

the second being based on the theory that Petitioner was guilty

under the principal theory. Petition at 14. Petitioner states

the jury returned a general verdict after being instructed on

alternate theories upon which to convict Petitioner. Id.

Petitioner complains it is impossible to determine which theory

the jury relied upon to find Petitioner guilty of armed robbery.

Id. He further alleges that the jury did not find that he actually

25

possessed a deadly weapon because the standard principal

instruction given by the court was not in keeping with the ruling

in Rosemond. Id. In essence, Petitioner claims this erroneous

instruction allowed the jury to find him guilty of armed robbery

upon a legally inadequate theory, and due to the general verdict,

there is no way of knowing which theory the jury relied upon to

convict Petitioner.

Petitioner raised a comparable claim in ground two of his

Rule 3.850 motion. (Doc. 19-4 at 69-78). The trial court denied

the claim finding the underlying issue had been rejected on appeal.

Id. at 89. Petitioner appealed the denial of his Rule 3.850 motion

and the 1st DCA affirmed per curiam. Id. at 151.

The record demonstrates, on direct appeal, Petitioner raised

the following in Issue II of his appeal brief: “[t]he trial court

erred in sentencing appellant for armed robbery; the jury’s verdict

was ambiguous and must be construed to reject the claim that

appellant actually or personally carried a firearm during the

commission of the offense.” (Doc. 19-3 at 248). The 1st DCA, in

a written opinion, affirmed each issue raised on appeal. (Doc.

19-4 at 39-40).

As he did in ground four of the federal Petition, Petitioner

predicates ground five on the theory that Florida’s standard

26

principal instruction is fundamentally erroneous. The 1st DCA

found Petitioner failed to establish that fact. As noted

previously, the decision in Rosemond came down after Petitioner

was convicted. Trial counsel was not ineffective for failure to

predict the ruling in Rosemond and for failure to move to set aside

the general verdict based on the reasoning set forth in Rosemond.

See Cochran v. Frazier, 377 F. App’x 870, 872 (11th Cir. 2010)

(per curiam) (trial counsel found not ineffective for failure to

predict a holding); United States v. Andrews, No. CR94cr62-MHT,

2010 WL 1252415, at *2 (M.D. Ala. Feb. 22, 2010) (“as a matter of

law in this circuit, counsel cannot be ineffective for failing in

1994 to predict what the Supreme Court would hold in 1999), report

and recommendation adopted by 2010 WL 1252433 (Mar. 25, 2010).

Petitioner’s counsel was not ineffective for failure to move

to set aside the verdict based upon a claim of a legally inadequate

principal theory and a general verdict allowing a conviction based

upon this allegedly inadequate theory. As previously noted,

Rosemond did not come down until Petitioner’s case was on appeal;

therefore, trial counsel was not obliged to predict the future

during the course of the trial.

The record reveals the trial court instructed the jury on

robbery, robbery with a deadly weapon, and principals. (Doc. 19-

27

1 at 117-119). In pertinent part, the court charged the jury with

Florida’s standard instruction on principals:

If the defendant helped another person or

persons commit a crime, the defendant is a

principal and must be treated as if he had

done all the things the other person or

persons did if:

1. The defendant had a conscious intent that

the criminal act be done and

2. The defendant did some act or said some

word which was intended to and which did

incite, cause, encourage, assist, or advise

the other person or persons to actually commit

the crime.

To be a principal, the defendant does not

have to be present when the crime is

committed.

Id. at 119.

The record shows the jury returned a verdict finding

Petitioner guilty of robbery, as charged in the information.9 Id.

at 113. The jury further found: “the Defendant carried,

displayed, or used a deadly weapon.” Id.

In Vilme v. McNeil, No. 08-23138-CIV, 2010 WL 430762, at *18

n.17 (S.D. Fla. Feb. 5, 2010), the federal district court

explained:

9 The information for armed robbery charged that Petitioner, “with

the intent to permanently or temporarily deprive James Russell of

the money or other property, and in the course of committing said

robbery, carried a deadly weapon[.]” (Doc. 19-1 at 23).

28

Florida law is clear that a person may be

convicted of a criminal offense if he aided

and abetted its principals. See Fla. Stat. §

777.011 (aider or abettor may be convicted as

principal even if not actually or

constructively present at commission of

offense); Voto v. State, 509 So. 2d 1291,

1292-93 (Fla. 4 DCA 1987); Ramirez v. State,

371 So. 2d 1063, 1065 (Fla. 3 DCA), cert.

denied, 383 So. 2d 1201 (Fla. 1980). Thus, a

person who participates in a crime is

responsible for the acts of his accomplices,

as long as the crime committed by the

accomplice is within the participants' common

design. Parker v. State, 458 So. 2d 750 (Fla.

1984), cert. denied, 470 U.S. 1088, 105 S. Ct.

1855, 85 L.Ed.2d 152 (1985). See also Jacobs

v. State, 396 So. 2d 713, 717 (Fla. 1981) (“One

who participates with another in a common

criminal scheme is guilty of all crimes

committed in furtherance of that scheme

regardless of whether he or she physically

participates in that crime.”)

There was adequate evidentiary support for both theories of

guilt. Assuming arguendo an Alleyne error occurred, it is

harmless (subject to a harmless error analysis). After reviewing

the entire record, based on the evidence presented in this case

and the jury’s findings, any error was harmless beyond a reasonable

doubt. See Brown v. State, 277 So. 3d 616, 620-23 (Fla. 3rd DCA

Nov. 28, 2018) (the jury found the defendant guilty of first degree

murder, attempted armed robbery, and the offenses were committed

with a firearm that he used).

29

At trial, Petitioner’s co-defendant, Michael Hall, testified

Petitioner was the driver of the car. (Doc. 19-2 at 329). Hall

attested both he and Petitioner went into the Chevron Station to

purchase items. Id. Hall said when Petitioner returned to the

vehicle, Petitioner mentioned seeing a customer “with stuff[:]” a

lot of money. Id. at 333.

Hall then testified to the following. Petitioner and his co-

defendants waited in the vehicle for the customer to come out of

the store. Id. at 334. After the customer came out of the store,

with Petitioner driving, the perpetrators followed the victim home

and stopped in front of the victim’s driveway. Id. at 334-35. At

that point, Petitioner and one of his sons, Larry Jossey, III

(Jossey), jumped out of the car. Id. at 335. When Petitioner got

out of the car, Hall saw a gun in the bottom of Petitioner’s jacket

and Hall watched Petitioner pull the gun out. Id. Petitioner and

Jossey walked up to the victim and grabbed him, then Jossey jumped

in the victim’s car and drove off. Id. at 336. Petitioner ran

back to the car he had been driving, returned to the driver’s seat,

and drove off. Id. Mr. Hall saw that Petitioner had the victim’s

wallet. Id. Petitioner drove back to the gas station and

“crashed the car.” Id. Petitioner was driving the entire time.

Id. Upon returning to Petitioner’s house, all of the perpetrators

30

searched the victim’s car, which was now at Petitioner’s house,

for money, jewelry, or anything left in the car. Id. at 340-41.

Hall testified the gun Petitioner wielded was a .380 and Hall had

seen Petitioner with the gun numerous times before. Id. at 357.

Another co-defendant, Jossey, testified at trial as well.

Id. at 382. He testified as follows. Petitioner invited Jossey

to Petitioner’s house because he “was going to go make some money.”

Id. at 385. Petitioner got in the driver’s seat of Jossey’s stolen

car. Id. at 386. Jossey rode in the front passenger seat. Id.

Jossey’s brother was sitting behind Jossey in the rear seat. Id.

Hall was sitting behind Petitioner in the other rear seat of the

car. Id. At the Chevron Station, Petitioner and Hall got out of

the car and went into the store. Id. at 388. A conversation

followed that a man getting inside of his car at the store had

money. Id. at 388. Petitioner announced he was going to follow

the man. Id. at 389.

Petitioner was driving. Id. Petitioner followed the victim,

and when the victim pulled inside his driveway, Petitioner parked

in front of the victim’s house and turned to Jossey and said

“[c]ome with me[.]” Id. at 390. Jossey did not see Petitioner

with a gun until Petitioner got out of the car. Id. Jossey

attested he saw Petitioner with a .38. Id. Petitioner approached

31

the victim and asked him for his money and the keys to his car.

Id. at 390-91. Jossey had the victim start the car and then Jossey

drove off in the victim’s car. Id. at 391. Petitioner returned

to the car he had been driving and drove off. Id. Jossey followed

Petitioner. Id. The car Petitioner was driving broke down, and

Jossey kept going in the victim’s car until Jossey arrived at his

father’s house. Id. at 392. Once all of them returned back to

the house, they all searched the victim’s car. Id. They found

money in the victim’s car. Id. Petitioner retrieved money from

both the victim and the victim’s car. Id. at 392-93.

Petitioner, in a recorded statement to the police played for

the jury, admitted to driving the car to the scene but said he did

not know anything. Id. at 445. Petitioner also said: “Me and

[Petitioner’s minor son] have a gun.” (Doc. 91-3 at 1).

Detective Potter testified, after obtaining a search warrant, the

police found a .380 caliber shell casing in the vehicle Petitioner

was driving. (Doc. 19-3 at 4).

Considering the evidence presented at trial, assuming

arguendo an Alleyne error occurred and applying harmless error

analysis, any error was harmless. Petitioner is not entitled to

habeas relief on ground five.

GROUND SIX: The cumulative error of counsel deprived Petitioner

of his right to a fair trial.

32

Petitioner raised a comparable claim in ground three of his

Rule 3.850 motion. (Doc. 19-4 at 79-80). The trial court denied

post-conviction relief, finding the alleged errors are either

procedurally barred or without merit, consequently, the claim of

cumulative error necessarily fails. Id. at 89. The 1st DCA

affirmed. Id. at 151.

To the extent Petitioner is claiming trial counsel's errors

deprived Petitioner of a fair trial in violation of the Fourteenth

Amendment's Due Process Clause, the Court concludes he is not

entitled to habeas relief. Through his Petition, Petitioner has

not shown he was deprived of a fair trial:

[he] has not demonstrated error by trial

counsel; thus, by definition, [Petitioner] has

not demonstrated that cumulative error of

counsel deprived him of a fair trial. See

Yohey v. Collins, 985 F.2d 222, 229 (5th Cir.

1993) (explaining that because certain errors

were not of constitutional dimension and

others were meritless, petitioner "has

presented nothing to cumulate").

Miller v. Johnson, 200 F.3d 274, 286 n.6 (5th Cir.), cert. denied,

531 U.S. 849 (2000).

In considering a claim of cumulative error when addressing an

ineffective assistance of trial counsel contention, under the

cumulative error doctrine, the district court considers whether:

33

"an aggregation of non-reversible errors

(i.e., plain errors failing to necessitate

reversal and harmless errors) can yield a

denial of the constitutional right to a fair

trial, which calls for reversal." United

States v. Baker, 432 F.3d 1189, 1223 (11th

Cir. 2005) (internal quotation marks omitted).

We address claims of cumulative error by first

considering the validity of each claim

individually, and then examining any errors

that we find in the aggregate and in light of

the trial as a whole to determine whether the

appellant was afforded a fundamentally fair

trial. See United States v. Calderon, 127 F.3d

1314, 1333 (11th Cir. 1997).

Morris v. Sec'y, Dept. of Corr., 677 F.3d 1117, 1132 (11th Cir.

2012). In Forrest v. Fla. Dep't of Corr., 342 F. App'x 560, 564

(11th Cir. 2009) (per curiam) (citing United States v. Cronic, 466

U.S. 648, 659 n.26 (1984)), cert. denied, 562 U.S. 589 (2010), the

Eleventh Circuit explained, although the Supreme Court has not

specifically addressed the applicability of the cumulative error

doctrine when addressing an ineffective assistance of trial

counsel claim, it has held there is no basis for finding a

constitutional violation unless the petitioner can point to

specific errors of counsel which undermined the reliability of the

finding of guilt. Thus, a cumulative errors of counsel claim

lacks merit without a showing of specific errors of counsel which

undermine the conviction in their cumulative effect, amounting to

prejudice.

34

In his Petition, Petitioner has not demonstrated any of his

trial counsel's alleged errors, considered alone, rise to the level

of ineffective assistance of counsel; therefore, there are no

errors to accumulate, and Petitioner is not entitled to habeas

relief. See Spears v. Mullin, 343 F.3d 1215, 1251 (10th Cir.

2003) (when the sum of various zeroes remains zero, the claim of

prejudicial effect of cumulative errors is nil and does not support

habeas relief), cert. denied, 541 U.S. 909 (2004). As the

threshold standard of Strickland has not been met, Petitioner has

failed to demonstrate that his trial was fundamentally unfair and

his counsel ineffective. Simply, Petitioner has not shown

specific errors which undermine the conviction in their cumulative

effect; therefore, he has failed to demonstrate prejudice. Even

considered cumulatively, his assertions do not render the claim of

ineffective assistance of counsel sufficient. Robertson v. Chase,

No. 1:07-CV-0797 RWS, 2011 WL 7629549, at *23 (N.D. Ga. Aug. 12,

2011) (citations omitted), report and recommendation adopted by

2012 WL 1038568 (N.D. Ga. Mar. 26, 2012), aff'd by 506 F. App'x

951 (11th Cir. 2013), cert. denied, 571 U.S. 842 (2013). As such,

Petitioner is not entitled to habeas relief on his claim that

cumulative errors of counsel deprived him of a fair trial.

35

The state court decision passes AEDPA muster as singularly or

cumulatively, the proposed deficient conduct does not meet the

Strickland standard and Petitioner was not deprived of a fair

trial. As such, Petitioner is not entitled to habeas relief and

ground six is due to be denied.

Ground Seven: The trial court erred in sentencing Petitioner to a

minimum mandatory term of life for armed robbery because the PRR

statute violates Apprendi and Alleyne.

Petitioner bases his claim of a violation of Apprendi and

Alleyne on (1) the temporal relationship (within 3 years) between

the current offense and release from prison being determined by a

judge rather than the jury; (2) the lack of extenuating

circumstances precluding the just imposition of a PRR sentence

being determined by a prosecutor rather than the jury; and, (3)

the qualifications for Petitioner to be deemed a PRR were deemed

established by a preponderance of the evidence rather than the

jury finding the qualifications beyond a reasonable doubt.

Petition at 15. Petitioner exhausted his claim in the state courts

by raising it in Issue I of a Rule 3.800(b)(2) motion before the

circuit court (Doc. 19-3 at 207-209, 210-18) and by presenting the

claim on direct appeal in issue III of his brief (Doc. 19-3 at

246-48, 279-83). The 1st DCA affirmed Petitioner’s conviction and

36

sentence on direct appeal in a written opinion. (Doc. 19-4 at 39-

40).

In denying the Rule 3.800(b)(2) motion, the circuit court

found Petitioner had been convicted and sentenced for armed

robbery. (Doc. 19-3 at 230). The court reasoned that Alleyne

simply expanded the holding in Apprendi, applying the rule

announced in Apprendi to mandatory minimum sentences. (Doc. 19-3

at 230). The court further explained that Alleyne extended the

holding in Apprendi to any fact, other than a prior conviction,

that increases the minimum mandatory term. Id. at 230-31. As

such, the court concluded that the sentencing enhancement scheme

set forth in the PRR Act unaffected by Apprendi and Alleyne,

specifically finding that the date of a defendant’s release from

prison does not have to be submitted to a jury for determination

and Alleyne does not change the standard of proof required for PRR

designation allowing for proof by a preponderance of evidence.

Id. at 231-32.

After providing its reasoning, the court held:

Conclusively, as of the date of this

Order, neither the Florida Supreme Court nor

the United States Supreme Court has determined

that Florida’s recidivist statutes, sections

775.082 and 775.084, are unconstitutional as

applied to mandatory minimum punishments.

The Court, therefore, finds that Alleyne is

inapplicable to the instant case and declines

37

to overturn Defendant’s PRR portion of his

sentence. Thus, Defendant’s argument in this

construed ground for relief is without merit

and is denied.

(Doc. 19-3 at 232).

For the same reasons provided in denying ground three of the

Petition, Petitioner is not entitled to habeas relief on ground

seven. The Supreme Court has not revisited Almendarez-Torres;

therefore, it is the governing law in this case. Chester v.

Warden, 552 F. App’x 887, 891 (11th Cir. 2014) (per curiam). The

Court finds AEDPA deference is due; the Florida court’s decision

is not inconsistent with Supreme Court precedent, and the state

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

unreasonable application of Supreme Court law or based on an

unreasonable determination of the facts. Thus, ground seven of

the Petition is due to be denied.

Ground Eight: “Appellant’s score sheet is incorrect because he was

actually convicted of armed robbery; the jury’s verdict supports

only a sentencing for simple robbery.”

Petitioner, in his supporting facts, argues “the jury’s

verdict does not support a finding of actual possession because

the jury was instructed on the principle [sic] theory of

prosecution.” Petition at 15. Petitioner exhausted this ground

in the state court system by presenting it in his Rule 3.800(b)(2)

38

motion (Doc. 19-3 at 218-27) in Issue II. The circuit court

rejected this claim. Id. at 232-33. Upon review of the record,

the court concluded the jury found Petitioner guilty of robbery as

charged in the information, and additionally, guilty of carrying,

displaying, or using a deadly weapon. Id. The court additionally

noted Petitioner’s scoresheet reflected scores for armed robbery,

resulting in a sentencing range of thirty-four and a half months

to a maximum of life. Id. at 233. Notably, the court concluded

the scoresheet made no difference because Petitioner was sentenced

as a PRR, as shown on the scoresheet. Id. As such, the court

denied relief finding Petitioner’s claim without merit. Id. As

a PRR offender, Petitioner was “not eligible to be sentenced under

the sentencing guidelines” and was sentenced to life in prison as

a PRR. Id. at 232 (citing Dolansky v. State, 964 So. 2d 188 (Fla.

1st DCA 2007) (per curiam)).

Upon review, the Criminal Punishment Code Scoresheet shows

Petitioner’s offense level as 8 for armed robbery with a score of

74 points. (Doc. 19-2 at 52-53). The sentence computation is

34.5 months to life. Id. at 53. The total sentence imposed is

life in prison as a PRR. Id.

39

Petitioner raised a comparable claim in Issue II of his direct

appeal brief. (Doc. 19-3 at 271-79). The 1st DCA affirmed in a

written opinion. (Doc. 19-4 at 39-40).

Apparently, Petitioner is reiterating the claim that his

conviction and sentence are in violation of Apprendi and Alleyne.

As previously stated in the review of grounds three and seven of

the Petition, Florida’s PRR statute is not invalidated by Apprendi

nor circumscribed by Alleyne. Thus, Petitioner is not entitled

to habeas relief.

To the extent the state court reached a claim of

constitutional dimension, the state court’s ruling is entitled to

AEDPA deference. The state court’s adjudication of the claim is

not contrary to or an unreasonable application of clearly

established Supreme Court law and it is not based on an

unreasonable determination of the facts in light of the record.

Thus, ground eight 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.

40

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 14th day of

May, 2020.

4 7 De

af J. DAVIS

United States District Judge

10 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.

41

sa 5/12

c:

Larry G. Jossey, Jr.

Counsel of Record

42