Hightower v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

NATHAN NAPOLEON

HIGHTOWER, III,

Petitioner,

v. Case No. 3:17-cv-968-J-32JRK

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, initiated this case with

the help of counsel by filing a Petition for Writ of Habeas Corpus Under 28

U.S.C. § 2254, Doc. 1, and a Memorandum of Law, Doc. 2. He is challenging a

state court (Duval County, Florida) judgment of conviction for burglary of a

dwelling. He is currently serving a twenty-two-year term of incarceration as a

habitual felony offender, with a fifteen-year minimum mandatory as a prison

releasee reoffender. Doc. 1. Respondents have responded. See Doc. 17;

Response.1 Petitioner filed a Reply. See Doc. 18. This case is ripe for review.

II. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal habeas corpus petition. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure

that federal habeas relief functions as a guard against extreme malfunctions in

the state criminal justice systems, and not as a means of error correction.’” Id.

(quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the petitioner’s claims on the merits. See

Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The

state court need not issue an opinion explaining its rationale in order for the

state court’s decision to qualify as an adjudication on the merits. See Harrington

v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s adjudication on the

merits is unaccompanied by an explanation,

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

1 Attached to the Response are numerous exhibits. See Doc. 17-1 through

Doc. 17-6. The Court cites to the exhibits as “Resp. Ex.”

same reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

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

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “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)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

Renico v. Lett, 559 U.S. 766, 773 (2010) (internal

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotation marks omitted). “It bears

repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade,

538 U.S. 63, 75 (2003)). The Supreme Court has

repeatedly instructed lower federal courts that an

unreasonable application of law requires more than

mere error or even clear error. See, e.g., Mitchell v.

Esparza, 540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at

75 (“The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness.”); Williams v. Taylor,

529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Exhaustion and Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254

habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”

every issue raised in his federal petition to the state’s highest court, either on

direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351

(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners

must give the state courts one full opportunity to resolve any constitutional

issues by invoking one complete round of the State’s established appellate

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘opportunity to pass upon and correct’ alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,” the

prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

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, e.g., Coleman,[2] supra, at 747–

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

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). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

procedurally defaulted, a federal court may still consider the claim if a state

habeas petitioner can show either (1) cause for and actual prejudice from the

default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause and

prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

raising the claim and which cannot be fairly

attributable to his own conduct.” McCoy v. Newsome,

953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Carrier,

477 U.S. at 488, 106 S. Ct. 2639).[4] Under the prejudice

prong, [a petitioner] must show that “the errors at trial

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

4 Murray v. Carrier, 477 U.S. 478 (1986).

actually and substantially disadvantaged his defense

so that he was denied fundamental fairness.” Id. at

1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, there

remains yet another avenue for him to receive

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.” Carrier,

477 U.S. at 496, 106 S. Ct. at 2649. “This exception is

exceedingly narrow in scope,” however, and requires

proof of actual innocence, not just legal innocence.

Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it

is more likely than not that no reasonable juror would have convicted him’ of

the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam)

(citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a

person must show that: (1) counsel’s performance was outside the wide range of

reasonable, professional assistance; and (2) counsel’s deficient performance

prejudiced the challenger in that there is a reasonable probability that the

outcome of the proceeding would have been different absent counsel’s deficient

performance. Strickland, 466 U.S. at 687.

Notably, there is no “iron-clad rule requiring a court to tackle one prong

of the Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th

Cir. 2010). Since both prongs of the two-part Strickland test must be satisfied

to show a Sixth Amendment violation, “a court need not address the

performance prong if the petitioner cannot meet the prejudice prong, and vice-

versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As

stated in Strickland: “If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will often be so, that

course should be followed.” 466 U.S. at 697.

“The question is not whether a federal court believes the state court’s

determination under the Strickland standard was incorrect but whether that

determination was unreasonable - a substantially higher threshold.” Knowles

v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is

“any reasonable argument that counsel satisfied Strickland’s deferential

standard,” then a federal court may not disturb a state-court decision denying

the claim. Richter, 562 U.S. at 105. As such, “[s]urmounting Strickland’s high

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

“Reviewing courts apply a ‘strong presumption’ that counsel’s representation

was ‘within the wide range of reasonable professional assistance.’” Daniel v.

Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting

Strickland, 466 U.S. at 689). “When this presumption is combined with §

2254(d), the result is double deference to the state court ruling on counsel’s

performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y, Dep’t

of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,

concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

III. Petitioner’s Claims and Analysis

A. Ground One

Petitioner argues that the trial court erred in denying his motion to

suppress. Doc. 1 a 5-7. According to Petitioner, trial counsel, on behalf of

Petitioner, sought to suppress evidence of two state eyewitness’, Curtis and

Diane Goodell, pretrial identifications of Petitioner because they were obtained

through impermissibly suggestive means that caused “a substantial likelihood

of irreparable misidentification.” Id. Petitioner asserts that the trial court

violated his constitutional rights when it allowed the state to present such

evidence.

Prior to trial, trial counsel filed an amended motion to suppress Mr. and

Mrs. Goodell’s show-up identifications of Petitioner as one of the individuals

seen breaking into the victim’s home. Resp. Ex. A at 144-49. The crux of

Petitioner’s argument was that while the police officers were still at the scene

of the burglary, the officers told Mr. and Mrs. Goodell that the suspects they

had described to the 911 dispatcher were in custody, suggesting that they

already arrested the correct individuals. Id. at 154. Police then immediately

took the Goodells to the Walmart parking lot where they had Petitioner, Leigh

Pinckney, and Sharenda Freeman waiting in the back of police cruisers. Id. The

police then presented Petitioner to the Goodells while he was still in handcuffs,

and the Goodells identified Petitioner as one of the individuals who they saw

break into the victim’s home. Petitioner sought suppression of their

identifications, arguing that the means used to obtain them were unduly

suggestive. In conformance with the parties’ prior agreement, the trial court

heard argument on the motion to suppress during trial and considered proffered

testimony from Mr. and Mrs. Goodell outside the presence of the jury. Resp. Ex.

E at 153-54.

Before the trial court heard this proffered testimony, Mr. Goodell testified

at trial that he and the victim, Don Blanton, are direct neighbors. Id. at 238.

Mr. Goodell explained that on the day of the burglary, he was working in the

yard, his wife was inside, and the victim was at work. Id. at 240. He stated that

he went inside to eat lunch when Mrs. Goodell noticed a man and a woman

walking up the victim’s driveway toward the victim’s front door and a car

parked near the victim’s driveway. Id. at 242, 324. There was a third person in

the driver’s seat of the vehicle. The Goodells explained that the vehicle was a

silver or gray, mid-sized sedan and they could not describe the features of the

driver of the vehicle. Id. However, they did have a clear view of the man and

woman who were walking toward the victim’s front door.

Mr. Goodell described the male as African American, medium build, about

5’10”, medium length hair, and wearing a black shirt and black pants. Id. at

245. Mr. Goodell explained that the female was also African American, about

5’5”, medium build, and wearing black shorts and a black and white blouse. Id.

at 245. According to Mr. Goodell, he and his wife then heard “a boom” before his

wife exclaimed that the couple was breaking into the victim’s home. Id. at 245.

Notably, Mrs. Goodell testified that she actually saw the male and female go

inside the victim’s home. Id. at 327.

Mr. Goodell immediately ran outside to document the vehicle’s tag

number while Mrs. Goodell called 911. Id. at 243. He testified that when the

male ran out of the victim’s home, he was carrying a “nine-by-five” object but

Mr. Goodell admitted he could not identify the object. Id. at 246. He stated that

while he was writing down the tag number, the male and female suspects

running from the victim’s home were about fifteen feet away from him. Id. at

247. Mr. Goodell explained that when he saw the two suspects running, nothing

was obstructing his view. Id. The female got into the rear driver’s-side seat of

the vehicle and the male got into the front passenger-side seat. Id. at 247-48.

He provided a description of the vehicle and the tag number to the 911 operator.

Id. He testified that police were on scene approximately five minutes after the

suspects drove away. Id.

Outside the presence of the jury, the state then proffered Mr. Goodell’s

identification testimony. Id. at 249-54. During the proffer, Mr. Goodell testified

that two police officers arrived on scene and entered the victim’s home while

Mr. Goodell stood outside. Id. at 254. According to Mr. Goodell, the two officers

then “in a dramatic fashion” left the scene while telling Mr. Goodell “we got a

fix on the car.” Id. Mr. Goodell explained that he interpreted the officers’

statement and actions to mean that they had spotted the suspect vehicle. Id.

The officers then left and told Mr. Goodell to keep a watch on the victim’s home,

but soon returned to pick up Mr. Goodell to take him to a nearby Walmart

parking lot to identify the vehicle and the individuals apprehended from the

vehicle. Id. at 255. The first arrestee that police brought out was a female, she

was not in handcuffs, and Mr. Goodell advised police that he did not recognize

her. Id. at 256. The second individual that police presented for identification

was a male (Petitioner), Mr. Goodell could not recall if he was wearing

handcuffs at the time of the identification. Id. Mr. Goodell advised police that

he did recognize the male; specifically, he testified that he recognized “his build,

his gender, and his attire.” Id. at 256-57. He explained that he was “very sure”

that the male was the one he saw running from the victim’s home. Id. at 257.

He testified that the police then brought out a third individual. Id. He stated

that it was a female and he recognized her build and her attire. Id. He explained

that no one assisted him in identifying the individuals, he made the two

identifications approximately 25 minutes after he saw them running from the

victim’s home, and he recognized the male immediately. Id. at 258.

During the proffer, the trial court inquired whether Mr. Goodell was

identifying Petitioner as the male suspect because he “knew that the police had

caught him in that car that [he] ha[d] identified or [if] [he] actually . . .

recognize[d] his build, his gender, his general” appearance as the person he saw

running from the victim’s home. Id. at 277. In response, Mr. Goodell stated, “I’m

going to say part of each. . . .” Id. at 278. Based on that response, the trial court

ruled as follows:

THE COURT: [T]he court’s ruling is going to be that

this witness can tell the jurors only that he went to the

show up and when the man was presented to him, that

he had on similar clothing and a similar build. And

what was the other? Build, gender, clothes.

He can say that. But to the extent that he’s now

told me that he wasn’t really positive identifying him,

and if he hadn’t known he was coming from the car. So

I don’t think that it would be proper to have the witness

testify to the jury that he was positive it was the

defendant.

He doesn’t identify his face. . . .

So therefore - - I still think it’s proper for him to

say that he did go and he saw a man of familiar - - and

you can lead him on this, State. Otherwise it might

come out wrong.

But don’t tell him you’re positive.

Id. at 280-81. In compliance with the trial court’s limiting instruction, Mr.

Goodell then testified before the jury that when he was brought to the Walmart

to identify the apprehended suspects, he identified the male in custody as one

of the offenders because he looked similar to the individual he saw running from

the victim’s home because he recognized the clothing. Id. at 293.

Following Mr. Goodell’s trial testimony, the trial court clarified its ruling

on the motion to suppress, finding that the procedure used by the police was not

unduly suggestive. Id. at 309. It also noted that the witness did not make a

positive facial identification, but in an abundance of caution, the trial court

limited the witnesses’ testimony to statements that they recognized that

Petitioner’s clothing and build at the time of the identification was similar to

that of the male offender. Id. at 309-11. The trial court also explained that its

ruling also applied to any pretrial identification by Mrs. Goodell. Id. at 311.

The state then proffered Mrs. Goodell’s identification. Id. at 313. She

testified that she identified Petitioner as one of the offenders because he was

wearing similar clothing and had a similar build. Id. at 315. She also explained

that prior to her identification of Petitioner, she did not discuss any descriptions

with her husband and that she was able to identify Petitioner immediately upon

seeing him. Id. at 315. Upon consideration of that proffer, the trial court again

found that the police procedure was not unduly suggestive, and instead found

that Mrs. Goodell’s identification seemed “even more positive” than her

husband’s, and thus, allowed the witness to testify about similar clothing and

build. Id. at 317. Pursuant to the trial court’s directive, Mrs. Goodell limited her

identification testimony. Id. at 332-35.

As his sole issue on direct appeal, Petitioner, with the help of appellate

counsel, challenged the trial court’s denial of his motion to suppress the

Goodells’ identification testimony. Resp. Ex. H. In its answer brief, the state

argued that the identification was not impermissibly suggestive. Resp. Ex. I.

Thereafter, the First District Court of Appeal per curiam affirmed Petitioner’s

judgment and conviction without a written opinion. Resp. Ex. J. Presumptively

an adjudication on the merits, the First DCA’s decision is entitled to deference

under § 2254(d).

In applying such deference, the Court notes that the Supreme Court has

recognized “a due process check on the admission of eyewitness identification,

applicable when the police have arranged suggestive circumstances leading the

witness to identify a particular person as the perpetrator of a crime.” Perry v.

New Hampshire, 565 U.S. 228, 232 (2012). An out-of-court identification is

subject to exclusion if the identification procedure was unduly suggestive such

that it created a substantial risk of misidentification. Neil v. Biggers, 409 U.S.

188, 199 (1972). In determining whether an identification violates due process,

a court undertakes a two-part analysis. “First, we must determine whether the

original identification procedure was unduly suggestive . . . . If we conclude that

the identification procedure was suggestive, we must then consider whether,

under the totality of the circumstances, the identification was nonetheless

reliable.” Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir. 1988) (citing Biggers,

409 U.S. at 199).

In Biggers, the Supreme Court identified five factors to be considered in

determining whether the identification was reliable. They are: the witness’s

opportunity to view the suspect at the time of the crime, the witness’s degree of

attention, the accuracy of the description of the suspect, the level of certainty of

the identification, and the length of time between the crime and the

identification. See Biggers, 409 U.S. at 199. In Manson v. Brathwaite, 432 U.S.

98 (1977), the United States Supreme Court stated that absent “a very

substantial likelihood of irreparable misidentification,” the identification of a

suspect by a witness is evidence for the jury to weigh. Id. at 116.

Under the totality of the circumstances, the Goodells’ identification of

Petitioner as the male offender seen breaking into the victim’s home was

reliable. Applying the five Biggers factors: (1) the Goodells viewed the offender

committing the crime; (2) the Goodells’ ability to describe the clothing, build,

and gender supports their degree of attention; (3) while the trial court

prohibited the witnesses from positively identifying Petitioner as the person

they saw committing the crime, they did accurately describe the physical

appearance of the male offender and the vehicle, and those descriptions

matched Petitioner and the car he was apprehended from; (4) Mr. Goodell was

“very sure” that the male he identified at the Walmart was the same male he

saw running from the victim’s home, Resp. Ex. E at 257, and Mrs. Goodell knew

right away that the male she identified in the parking lot was the same man

she saw commit the offense, id. at 315; and (5) the Goodells made their

identifications within an hour of the incident.

In consideration of the foregoing, the Court concludes that the state

appellate court’s summary adjudication of this claim was neither contrary to,

nor an unreasonable application of, clearly established federal law. Nor was

the state appellate court’s adjudication based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceedings. As such, Ground One is due to be denied.

B. Ground Two, Ground Three, and Ground Four

In Ground Two, Petitioner argues that trial counsel was ineffective for

failing to adequately argue on the motion for judgment of acquittal that defense

witness Leigh Pinckney’s prior inconsistent statements were not substantive

evidence of Petitioner’s guilt, and that Pinckney’s testimony “exonerated

Petitioner.” Doc. 1 at 8; Doc. 2 at 15. In Ground Three, Petitioner asserts that

trial counsel was ineffective for failing to request a limiting jury instruction

regarding Pinckney’s prior inconsistent statements. Doc. 1 at 9; Doc. 2 at 16.

And in Ground Four, Petitioner claims that trial counsel was ineffective for

failing to object to inadmissible hearsay evidence presented by the state

through Detective Thompson’s rebuttal testimony regarding out-of-court

statements made by Pinckney. Doc. 1 at 10; Doc. 2 at 19-22.

Petitioner raised these three issues in his motion for postconviction relief

filed pursuant to Florida Rule of Criminal Procedure 3.850. Resp. Ex. K at 15-

19. The trial court summarily denied the claims, addressing the issues in

concert as follows:

In Ground Five, Defendant contends that trial

counsel was ineffective for failing to request a jury

instruction stating “the jury could not convict the

defendant based on a prior inconsistent statement.”

(Def.’s Mot. 15.) Defendant also claims counsel was

ineffective for failing “to argue on a motion for

judgment of acquittal that without the prior

inconsistent [statements] of Ms. Pinckney there was

not sufficient evidence for a jury to convict Defendant

or to object to the improper closing argument of the

State that the jury could use Ms. Pinckney’s prior

inconsistent statement to convict the Defendant.”

(Def.’s Mot. 15.) Likewise, in Ground Six, Defendant

contends counsel was ineffective for failing to “make a

best evidence and hearsay objection to the use of oral

testimony regarding the statements of Defendant’s co-

defendant, Ms. Pinckney, to law enforcement” through

the testimony of Detective E.M. Thompson. (Def.’s Mot.

18.) Defendant maintains the prior inconsistent

identification of Defendant could only be used to

impeach Ms. Pinckney’s testimony, not as substantive

evidence of his guilt.

At trial, Defendant presented the testimony of

Leigh Pinckney, who was in the car with Defendant on

the day of the burglary and had already entered a plea

to a burglary charge. Ms. Pinckney testified that on the

day of the burglary, Defendant never got out of the car

and he never went inside the victim’s house. (Ex. F at

386.) Ms. Pinckney testified that she and the other

female in the car with them - Sharenda Freeman - were

the only ones to enter the victim’s home. (Ex. F at 386.)

According to Ms. Pinckney, Ms. Freeman kicked in the

door and stole the laptop. (Ex. F at 386-88.) During his

direct examination, counsel asked Ms. Pinckney about

her prior inconsistent statement to JSO that it was

Defendant who kicked in the door and stole the laptop,

while she remained in the car. Ms. Pinckney explained

that she lied in her first statement to JSO to protect

Ms. Freeman. (Ex. F at 390-391.) Ms. Pinckney further

testified that she was under the influence of drugs and

alcohol when she made the statement to JSO. (Ex. F at

391.)

In response, the State presented the rebuttal

testimony of Detective E.M. Thompson. (Ex. F at 412.)

Detective Thompson testified about Ms. Pinckney’s

prior inconsistent statements. Detective Thompson

also testified that he did not believe Ms. Pinckney was

under the influence of drugs or alcohol at the time she

made the prior inconsistent statements. (Ex. F at 416-

17.) The State offered the testimony of Detective

Thompson to show that Ms. Pinckney’s trial testimony

was not credible. Through this testimony, the State

demonstrated that Ms. Pinckney made two different

statements concerning material facts, so the jury would

not place great weight on her in-court testimony.

Detective Thompson’s testimony was not being offered

for the truth of the matter asserted, and, as such, his

testimony was not hearsay. See Elmer v. State, 114 So.

3d 198, 202 (Fla. 5th DCA 2012) (“[A] prior inconsistent

statement admitted for impeachment purposes is not

hearsay because it is not being offered for the truth of

the matter asserted.”).

Similarly, during closing arguments, the State

focused on Ms. Pinckney’s trial testimony that she was

high when she gave her statement to JSO, and

Detective Thompson’s statement that he found her to

be coherent at the time. Even if Detective Thompson’s

testimony about Ms. Pinckney’s prior inconsistent

statements was hearsay, or if the State’s comments

during closing arguments were improper, Defendant

was not prejudiced by the testimony. The jury already

knew the details of Ms. Pinckney’s prior statement,

because counsel asked Ms. Pinckney to explain them

during direct examination. Moreover, the trial court

cautioned the jury not to consider an attorney’s

statement during closing as evidence. (Ex. F at 419-20.)

The Court need not determine whether counsel

adequately argued a motion for judgment of acquittal

or whether counsel should have requested a limiting

instruction as to Ms. Pinckney’s prior inconsistent

statements, because Defendant cannot demonstrate

prejudice. “A fair assessment of attorney performance

requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the

time.” Strickland, 466 U.S. at 689. The record shows

that counsel moved for a judgment of acquittal and that

the trial court denied the motion. (Ex. F at 377-78.)

Even if counsel had advocated more strongly for a

judgment of acquittal, there is no reasonable

probability that the trial court would have granted the

motion. See Hunter v. State, 8 So. 3d 1052, 1066 (Fla.

2008) (“A motion for judgment of acquittal should not

be granted by the trial court unless there is no view of

the evidence which the jury might take favorable to the

opposite party that can be sustained under the law.”)

(internal citation and quotation marks omitted).

Likewise, even if counsel had requested the jury

instruction, the Court finds there is no reasonable

probability the outcome of the trial would have been

different. The evidence presented by the State provided

overwhelming evidence of Defendant’s guilt, including

the following: Officers stopped a car that matched the

license plate number reported by two eye witnesses; the

car was stopped a few miles away from the victim’s

house and only minutes after the 911 call was made;

the victim’s laptop computer was discovered in the car;

after officers stopped Defendant’s car he was identified

by two eye witnesses as the man they saw leaving the

victim’s house; and Defendant’s co-defendant testified

against him at trial. As the State introduced sufficient

evidence, the question of guilt was properly left to the

jury and the Court finds a jury instruction would not

have affected the outcome of the trial. Accordingly,

Grounds Five and Six are summarily denied.

Resp. Ex. K at 71-74. The First DCA per curiam affirmed the trial court’s denial

without a written opinion. Resp. Ex. N. To the extent that the First DCA

affirmed the trial court’s denial on the merits, the Court will address these

claims in accordance with the deferential standard for federal court review of

state court adjudications.

In applying such deference, the Court finds that the state court

adequately determined that Petitioner failed to demonstrate prejudice from

trial counsel’s alleged errors regarding his handling of Pinckney’s prior

inconsistent statements. At trial, Petitioner presented the testimony of co-

defendant Pinckney who testified that it was her and Freeman who burglarized

the home, while Petitioner stayed in the vehicle. Resp. Ex. E at 387. On direct

examination, Pinckney acknowledged that this version was inconsistent with

her pretrial statement that Petitioner was the one who entered the home and

took the laptop. Id. at 391. She attempted to explain the discrepancy in her

statements by testifying that she was under the influence when she gave the

pretrial statement. Id. On rebuttal, the state presented testimony from

Detective Thompson who confirmed what Pinckney has already testified to, and

explained that Pinckney appeared sober and coherent when she issued the

pretrial statement. Id. at 412-17. As such, Petitioner was not prejudiced by

Detective Thompson’s alleged hearsay testimony because Pinckney’s

inconsistent pretrial declarations were already before the jury.

Further, even assuming that trial counsel should have objected or argued

that evidence of this inconsistent pretrial statement did not demonstrate

Petitioner’s guilt, such exclusion would not have affected the other evidence

supporting Petitioner’s culpability. Notably, Petitioner’s other co-defendant,

Freeman, testified at trial that at the direction of Petitioner, she drove

Petitioner and Pinckney to a residential neighborhood where Petitioner and

Pinckney exited the car and walked toward a stranger’s house. Id. at 205.

Freeman stayed in the vehicle until Petitioner and Pinckney ran back to the car

carrying a laptop and demanding that Freeman drive away. Id. at 205-06. A few

minutes later, police pulled her over and she stopped the vehicle in a Walmart

parking lot where she, Petitioner, and Pinckney were arrested. Id. at 207-09.

She explained that Pinckney was not under the influence of drugs or alcohol on

the day of the offense. Id. She stated that she was also facing burglary charges

for her participation in the crime, and that Petitioner and his family threatened

her not to cooperate with police or testify against him. Id. at 210.

Further, Mr. and Mrs. Goodell testified that they witnessed the crime and

that one of the two individuals who went into the house was a male. Id. at 390-

91. Officer D.N. Logan testified that he pulled over a vehicle matching the

description of the car given to the 911 dispatcher. Id. at 352-53. Officer Logan

stated that there was a male in the front passenger seat of the vehicle at the

time of contact and he identified that man as Petitioner. Id. at 355. The victim’s

laptop was also found in the vehicle. Id. at 367.

Considering the weight of the evidence contradicting Pinckney’s trial

testimony, Petitioner cannot demonstrate that but for trial counsel’s alleged

errors, the outcome of his trial would have been different. Thus, upon thorough

review of the record and the applicable law, the Court concludes that the state

court’s decision to deny Petitioner’s claims was neither contrary to nor an

unreasonable application of Strickland, and it is not based on an unreasonable

determination of the facts in light of the evidence presented to the state court.

See 28 U.S.C. § 2254(d). Ground Two, Ground Three, and Ground Four are

denied.

C. Ground Five

Petitioner argues that trial counsel was ineffective for failing to object to

the state’s improper closing statements. Doc. 1 at 12. He asserts that the trial

court limited evidence of the Goodells’ identification of Petitioner by only

allowing them to testify that they recognized Petitioner to be one of the

offenders because at the time of the identification, he had the same build,

gender, and clothing. Id. However, according to Petitioner, during closing, the

state exceeded the scope of the trial court’s limitation by arguing that the

Goodells “were able to identify the other two people. The only male found in the

car, Mr. Hightower and Miss Pinckney, the two that they saw coming from the

victim’s home.” Id.

Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. K at 55-

57. The trial court summarily denied the claim, finding in pertinent part:

In Ground Ten,[] Defendant argues that counsel

was ineffective for failing “to object to improper

comment by the prosecutor that misled the jury and

was also a violation of motion in limine.” (Def.’s Supp.

Mot. 2.) Specifically, Defendant states that during trial,

“the court concluded that the witness Mr. Goodell,

never identified the Defendant in court and ruled that

the witness would be limited to only say that the

clothing, build and gender were similar, that the man

looked similar, but not a positive identification, nor a

facial identification.” (Def.’s Supp. Mot. 3.) Defendant

contends that, despite the trial court’s ruling, “during

closing arguments, the State prosecutor informed the

jury that the witnesses were able to identify the

Defendant.” Defendant reasons that if counsel had

objected to the improper argument, then “this lack of

identification . . . would have created strong doubt

within the minds of the jury.” (Def.’s Supp. Mot. 4.)

During closing arguments, the State argued,

“But [the Goodells] were able to identify the other two

people. The only male found in the car, Mr. Hightower

and Miss Pinckney, the two that they saw coming from

the victim’s home.” (Ex. F at 436.) This argument was

not improper. The trial court denied Defendant’s

motion to suppress and allowed the Goodells to testify

about their out-of-court identifications. The trial court

only limited Mr. Goodell’s testimony so that he could

not testify that he recognized Defendant’s face, and

that he recognized Defendant by his build, gender, and

clothing. It was up to the jury to determine whether

these identifications were credible in light of the

discrepancies between Mr. Goodell’s description of

Defendant to the 911 operator and Defendant’s actual

appearance and clothing. Moreover, the trial court

cautioned the jury not to consider an attorney’s

statement during closing arguments as evidence. (Ex.

F at 419-20.) Finally, even assuming the State’s

arguments were excluded, the Court finds that it would

not have created strong reasonable doubt in the minds

of the jurors. As discussed infra in Grounds Five and

Six, there was overwhelming evidence of guilt in this

case. Accordingly, counsel was not deficient for failing

to object during the State’s closing arguments, and

Ground Ten is denied.

Resp. Ex. K at 78-79. The First DCA per curiam affirmed the trial court’s denial

without a written opinion. Resp. Ex. N. To the extent that the First DCA

affirmed the trial court’s denial on the merits, the Court will address the claim

in accordance with the deferential standard for federal court review of state

court adjudications.

Upon thorough review of the record and the applicable law, the Court

concludes that the state court’s decision to deny Petitioner’s claim was neither

contrary to nor an unreasonable application of Strickland, and it is not based

on an unreasonable determination of the facts in light of the evidence presented

to the state court. See 28 U.S.C. § 2254(d). Ground Five is denied.

D. Ground Six

Petitioner asserts that trial counsel was ineffective for failing to introduce

exculpatory evidence that revealed the shoeprint on the victim’s door, where

Petitioner allegedly kicked the door in, did not match the shoeprint impression

that police took of Petitioner’s shoe. Doc. 1 at 13; Doc. 2 at 25-29. Petitioner

admits that this claim is unexhausted and procedurally barred. Doc. 2 at 27.

However, he attempts to overcome this procedural default by relying on

Martinez v. Ryan, 566 U.S. 1 (2012), and arguing that he can show “cause” to

excuse his default because he did not have counsel when he filed his Rule 3.850

motion. Doc. 2 at 28.

Under Martinez, Petitioner must demonstrate more than the general

assertion that the trial court did not appoint counsel in the initial-review

collateral proceeding. 566 U.S. at 14. Petitioner must “also demonstrate that

the underlying ineffective-assistance-of-trial-counsel claim is a substantial one,

which is to say that the prisoner must demonstrate that the claim has some

merit.” Id. (citations omitted); see also Lambrix v. Sec’y Fla. Dept. of Corr., 851

F.3d 1158, 1164 (11th Cir. 2017). Conversely, his claim is “insubstantial” if “it

does not have any merit or . . . is wholly without factual support.” Id. at 16. For

the reasons that follow, the Court finds that even if Petitioner demonstrates

that his lack of postconviction counsel caused his procedural default, he cannot

demonstrate that his underlying ineffective-assistance-of-counsel claim is

substantial in order to establish prejudice under Martinez.

In his Reply, Petitioner argues that he has demonstrated prejudice under

Martinez because “the only evidence that could possibly have led the jury to

convict [Petitioner] is the testimony of his codefendant [Freeman], which was

rebutted by defense witness Pinckney.” Doc. 18 at 9. He argues that “[h]ad trial

counsel presented direct evidence, i.e., the footprint, that refuted and

completely impeached the testimony of Freeman (the State’s witness), there is

zero probability that [Petitioner] would have been convicted.” Id. This argument

is flawed for multiple reasons. First, even if the shoe impression found on the

door did not match Petitioner’s shoe impression,5 such evidence does not prove

that Petitioner did not participate in the burglary. Rather, it merely contradicts

the evidence that Petitioner was the individual who kicked the door during the

course of the burglary. Second, this evidence does not refute the Goodells’

eyewitness testimony that they saw a man and a woman walking up to the

victim’s door and break in. Nor does it refute the evidence that when Petitioner

was apprehended, he was wearing the same clothing and had the same body

type as that of the male who was seen breaking into the victim’s home. Third,

5 Respondents also argue that it is unclear if shoeprint evidence exists.

See Resp. at 40-41. Petitioner does not offer an argument refuting Respondents’

position, but merely claims that he is entitled to an evidentiary hearing to

attempt to adduce the existence of such evidence. Doc. 18 at 8.

it does not refute the evidence that the victim’s laptop was found in the car

where Petitioner was a passenger. Fourth, Pinckney’s trial testimony was

severely impeached by her own prior inconsistent statements incriminating

Petitioner. As such, because this claim is unsubstantial and lacks merit,

Petitioner cannot rely on Martinez to excuse the procedural default of this

claim. Likewise, Petitioner has failed to demonstrate that failure to consider

this claim on the merits will result in a fundamental miscarriage of justice.

Ground Six is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED and this case is DISMISSED

WITH PREJUDICE.

2. The Clerk of Court shall enter judgment accordingly, terminate

any pending motions, and close this case.

3. If Petitioner appeals this Order, the Court denies a certificate of

appealability. Because the 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 25th day of June,

2020.

TIMOTHY J. CORRIGAN

United States District Judge

Jax-7

C: Nathan Napoleon Hightower, III

Counsel of Record

8 The Court should issue a certificate of appealability only if the Petitioner

makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(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. 4738, 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 (2008) (quoting Barefoot v. Estelle,

463 U.S. 880, 893 n.4 (1988)). Here, after consideration of the record as a whole,

the Court will deny a certificate of appealability.

30