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

> District Court, M.D. Florida · May 15, 2020

URL: https://www.frixlaw.com/law-library/cases/10105146

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 15, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10105146

## How later opinions describe it (automated extraction)

- holding that Florida’s PRR statute is not invalidated by Apprendi
- recognizing the tension between Almendarez-Torres and Alleyne and Apprendi, but acknowledging the court is bound to follow Almendarez-Torres
- recognizing the tension between Almendarez-Torres and Alleyne and Apprendi, but acknowledging the court is bound to follow Almendarez-Torres

## Opinion text

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

10
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105146. Public record. Not legal advice.