Reyes v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

DIONICIO DELAROSA REYES,

Petitioner,

v. Case No. 5:17-cv-231-Oc-39PRL

SECRETARY, DEPARTMENT

OF CORRECTIONS, and ATTORNEY

GENERAL, STATE OF FLORIDA,

Respondents.

_______________________________

ORDER

I. Background

Petitioner, Dionicio Delarosa Reyes, through his attorney, is

proceeding on a Petition for Writ of Habeas Corpus under 28 U.S.C.

§ 2254 (Doc. 1; Petition). Petitioner challenges his 2010 state

court (Marion County) conviction for attempted first-degree murder

with a firearm. See Petition at 1. He asserts four grounds: (1)

trial court error in prohibiting him from calling a

rebuttal/impeachment witness; (2) trial court error in instructing

the jury on the elements of attempted voluntary manslaughter; (3)

trial court error in denying his motion for postconviction relief

under Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motion)

as to his claim of ineffective assistance of counsel for counsel’s

failure to move to dismiss the charges under Florida’s “Stand Your

Ground” (SYG) law; and (4) trial court error in denying his

postconviction claim of ineffective assistance of counsel for

counsel’s failure to object to a flawed jury instruction. Id. at

5-10.

Respondents assert both procedural and merits-based defenses

(Doc. 6; Resp.). The Court afforded Petitioner an opportunity to

reply, see Order (Doc. 2), but Petitioner’s counsel chose not to

do so, see Docket. Thus, the Petition is ripe for review.

II. Timeliness

Respondents concede Petitioner timely filed his Petition. See

Resp. at 4. Accordingly, the Court accepts as undisputed that the

Petition is timely.

III. Evidentiary Hearing

Petitioner does not request an evidentiary hearing. Even if

he had, upon review, the Court can “adequately assess

[Petitioner’s] claim[s] without further factual development.” See

Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003). As such,

an evidentiary hearing is not warranted.

IV. Governing Legal Standards

A. Habeas Review

The Antiterrorism and Effective Death Penalty Act (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), limiting

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

§ 2254. See also 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”).

When a state court has adjudicated a petitioner’s claim on

the merits, a federal court cannot grant habeas relief unless the

state court’s adjudication of that 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). See also Nance v. Warden, Ga.

Diagnostic Prison, 922 F.3d 1298, 1300-01 (11th Cir. 2019), cert.

denied, No. 19-6918, 2020 WL 1325907 (U.S. Mar. 23, 2020). 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).

A federal district court must give appropriate deference to

a state court decision on the merits. Wilson v. Sellers, 138 S.

Ct. 1188, 1192 (2018). To qualify as an adjudication on the merits,

the state court need not issue an opinion explaining its rationale.

Id. Where the state court’s adjudication is unaccompanied by an

explanation, the district court should presume the unexplained

decision adopted the reasoning of the lower court:

[T]he 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.

Id. Under the federal habeas statute, a state court’s factual

findings are “presumed to be correct” unless rebutted “by clear

and convincing evidence.” 28 U.S.C. § 2254(e)(1).

The AEDPA standard is intended to be difficult for a

petitioner to meet. Harrington, 562 U.S. at 102. A showing of

“clear error will not suffice.” Virginia v. LeBlanc, 137 S. Ct.

1726, 1728 (2017). If some fair-minded jurists could agree with

the state court’s decision, habeas relief must be denied. Meders

v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1351 (11th Cir.

2019), 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 an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement,” there is no entitlement to habeas relief. Id. at

1349 (alteration in original). A district court’s obligation is to

“train its attention” on the legal and factual basis for the state

court’s ruling, not to “flyspeck the state court order or grade

it.” Id. (citing Wilson, 138 S. Ct. at 1191-92).

B. Exhaustion/Procedural Default

Before bringing a § 2254 habeas action in federal court, a

petitioner must exhaust all state court remedies that are

available. 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). To properly exhaust federal habeas claims, “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 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.

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.

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012).

Notwithstanding that a claim has been procedurally defaulted,

a federal court may still consider the claim if a state habeas

petitioner “can show cause for the default and actual prejudice

resulting from the alleged constitutional violation.” Ward v.

Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). In order for a

petitioner to establish cause,

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).[1] Under the

prejudice prong, [a petitioner] must show that

“the errors at trial 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 “in an extraordinary case, where a

constitutional violation has probably resulted in the conviction

of one who is actually innocent.” Ward, 592 F.3d at 1157 (quoting

Carrier, 477 U.S. at 496). “‘This exception is exceedingly narrow

in scope,’ however, and requires proof of actual innocence, not

just legal innocence.” Id. (quoting Johnson v. Alabama, 256 F.3d

1156, 1171 (11th Cir. 2001)).

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

C. Ineffective Assistance of Counsel

To demonstrate trial counsel was ineffective, a habeas

petitioner must satisfy a rigorous two-prong test by showing (1)

counsel’s performance was deficient, meaning it fell below an

objective standard of reasonableness, and (2) counsel’s deficient

performance prejudiced his defense. Strickland v. Washington, 466

U.S. 668, 688, 692 (1984). See also Yarborough v. Gentry, 540 U.S.

1, 5 (2003). There is no “iron-clad rule requiring a court to

tackle one prong of the Strickland test before the other.” Ward,

592 F.3d at 1163. Thus, “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)).

The performance prong is highly deferential, requiring 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)

(internal quotation marks omitted) (quoting Strickland, 466 U.S.

at 689). Accordingly, “to show that counsel’s performance was

unreasonable, the petitioner must establish that no competent

counsel would have taken the action that his counsel did take.”

Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001).

(emphasis in original). The prejudice prong requires a showing

that there is a reasonable probability that, but for counsel’s

deficiencies, the result of the proceeding would have been

different. Strickland, 466 U.S. at 695.

When the “strong presumption” standard of Strickland is

applied “in tandem” with the highly deferential AEDPA standard, a

review of the state court’s determination as to the “performance”

prong is afforded double deference. Richter, 562 U.S. at 105. As

such, the question for a federal court is not whether trial

counsel’s performance was reasonable, but “whether there is any

reasonable argument that counsel satisfied Strickland’s

deferential standard.” Id. If there is “any reasonable argument

that counsel satisfied Strickland’s deferential standard,” a

federal court may not disturb a state-court decision denying the

claim. Id. As such, “[s]urmounting Strickland’s high bar is never

an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

V. Analysis

A. Ground One

First, Petitioner asserts the trial court erred in denying

his request to call Deputy Jacob as a witness to rebut the

testimony of Paul Straight. Petition at 5. Respondents argue

Petitioner did not exhaust this ground for relief because, on

direct appeal, Petitioner “did not alert the state court that he

was specifically raising a federal constitutional claim.” Resp. at

7.2 Additionally, Respondents argue, ground one presents solely a

state evidentiary issue. Id. at 13-14.

Through counsel, Petitioner appealed his conviction to

Florida’s Fifth District Court of Appeal (Fifth DCA). Exs. H, I.

The Fifth DCA affirmed Petitioner’s conviction per curiam, Ex. K,

and issued its mandate, Ex. L.

Initially, to the extent Petitioner urges that the state court

erred under Florida law when it ruled Petitioner could not call a

rebuttal witness, his claim is not cognizable on federal habeas

review. “As a general rule, a federal court in a habeas corpus

case will not review the trial court’s actions concerning the

admissibility of evidence,” because the state court “has wide

discretion in determining whether to admit evidence at trial[.]”

Alderman v. Zant, 22 F.3d 1541, 1555 (11th Cir. 1994); see also

Baxter v. Thomas, 45 F.3d 1501, 1509 (11th Cir. 1985) (“[A] federal

habeas corpus case is not a vehicle to correct evidentiary

rulings.”); Boykins v. Wainwright, 737 F.2d 1539, 1543 (11th Cir.

1984) (noting that federal courts, on habeas review, “are not

2 Petitioner concedes he did not exhaust his state remedies

as to ground one, though not for the reason Respondents offer. He

says he failed to exhaust his remedies because “[t]he factual

testimony provided at the evidentiary hearing did not support a

good faith basis to raise the issue on appeal.” Petition at 5. It

appears Petitioner is referencing the appeal of his Rule 3.850

Motion, not his direct appeal. Respondents assert Petitioner

failed to exhaust this claim because he did not present it to the

appellate court on direct appeal.

empowered to correct erroneous evidentiary rulings”). “Where a

claim of constitutional magnitude is lacking, the federal court in

the habeas corpus context will not review a state trial court’s

actions concerning the admissibility of evidence.” Nelson v.

Sec’y, Fla. Dep’t of Corr., 610 F. Supp. 2d 1323, 1332 (M.D. Fla.

2009). Thus, Petitioner’s claim that the trial court’s evidentiary

ruling was incorrect is not cognizable.

Additionally, to the extent ground one raises a federal

constitutional challenge, this claim is unexhausted because

Petitioner’s counsel did not present the federal nature of this

claim to the Fifth DCA on direct appeal. With respect to whether

a federal habeas petitioner fairly presented a federal claim to

the state court, the Eleventh Circuit has articulated the following

standard:

In order to be exhausted, a federal claim must

be fairly presented to the state courts.

Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct.

509, 512, 30 L.Ed.2d 438 (1971). “It is not

sufficient merely that the federal habeas

petitioner has been through the state courts

... nor is it sufficient that all the facts

necessary to support the claim were before the

state courts or that a somewhat similar state-

law claim was made.” Kelley[3], 377 F.3d at

1343-44 (citing Picard, 404 U.S. at 275-76, 92

S.Ct. at 512 and Anderson v. Harless, 459 U.S.

4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982)).

Rather, in order to ensure that state courts

have the first opportunity to hear all claims,

federal courts “have required a state prisoner

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

Cir. 2004).

to present the state courts with the same

claim he urges upon the federal courts.”

Picard, 404 U.S. at 275, 92 S.Ct. at 512

(citations omitted). While we do not require

a verbatim restatement of the claims brought

in state court, we do require that a

petitioner presented his claims to the state

court “such that a reasonable reader would

understand each claim’s particular legal basis

and specific factual foundation.” Kelley, 377

F.3d at 1344-45 (citing Picard, 404 U.S. at

277, 92 S.Ct. at 513).

McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005).

In some circumstances, identifying a claim as “federal” or

referencing the federal law upon which the claim relies may be

enough. Id. (citing Baldwin v. Reese, 541 U.S. 27, 32 (2004)).

However, “[b]riefing an issue as a matter of state law . . . is

not sufficient to exhaust a federal claim of the equivalent

ground.” Nelson, 610 F. Supp. 2d at 1332. A district court should

apply “common sense” when determining whether a petitioner

“afford[ed] the state courts a meaningful opportunity to consider

allegations of legal error . . . .” McNair, 416 F.3d at 1302. To

afford a state court a meaningful opportunity to consider a claim,

a habeas petitioner must “do more than scatter some makeshift

needles in the haystack of the state court record.” Id. at 1303

(quoting Kelley, 377 F.3d at 1345). In the state court, a

petitioner must have “plainly defined” the federal question.

Kelley, 377 F.3d at 1345. “Oblique references which hint that a

theory may be lurking in the woodwork will not turn the trick.”

Id.

In his appellate brief, Petitioner framed this claim as a

state evidentiary issue. He claimed, “the lower court erred in

prohibiting the defense from calling a critical

rebuttal/impeachment witness.” Ex. I at 12. In support of his

argument on appeal, Petitioner relied upon a provision of the

Florida Evidence Code, which prohibits evidence of a prior

inconsistent statement unless the witness, after being questioned

about the prior statement, denies having made it “or does not

distinctly admit making the prior inconsistent statement.” Id.

(quoting Fla. Stat. § 90.614(2)). He also cited Florida case law

and a Florida treatise. Id. at 13.

In a parenthetical citation, Petitioner referenced a United

States Supreme Court decision, Chambers v. Mississippi, 410 U.S.

284 (1973). Id. Petitioner’s main citation was to a Florida

appellate court decision, Mateo v. State 932 So. 2d 376, 379 (Fla.

2d DCA 2006). Petitioner’s counsel quoted from Mateo, which cited

Chambers. In his appellate brief, Petitioner’s counsel wrote:

Florida law is clear that “where evidence

tends in any way, even indirectly, to

establish a reasonable doubt of defendant's

guilt, it is error to deny its admission.”

Mateo v. State, 932 So. 2d 376, 379 (Fla. 2d

DCA 2006) (citing Rivera v. State, 561 So. 2d

536, 539 (Fla. 1990)[)]. This principle is

based, in part, on the United States Supreme

Court’s holding that “[f]ew rights are more

fundamental than that of an accused to present

witnesses in his own defense.” Mateo, id.

[sic] (citing Chambers v. Mississippi, 410

U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d

297 (1973)).

Id. at 13 (emphasis added).

Despite an indirect reference to a Supreme Court decision,

Petitioner argued the trial court improperly applied Florida

Statutes section 90.614 in ruling the witness’s prior statement

was inadmissible. He asserted the State’s witness did not

“distinctly admit” making the prior statement, and thus, the trial

court’s ruling to the contrary “was an abuse of discretion and a

denial of [his] due process rights.” Id. at 15, 16. In its answer

brief, the State responded to the issue as Petitioner presented

it—as an alleged evidentiary error. Ex. J at 4-7. Petitioner’s

counsel did not file a reply brief.

While Petitioner parenthetically cited Chambers and

referenced the phrase “due process,” Petitioner did not rely on

federal constitutional principles, nor did he “plainly define[]”

a federal claim for the appellate court’s consideration. See

Kelley, 377 F.3d at 1345. Indeed, Petitioner’s citation to Chambers

appears to have been a weak attempt to avoid over-quoting the Mateo

decision, not a deliberate decision to invoke constitutional

principles on appeal. See Mateo, 932 So. 2d at 379.

Even if Petitioner’s citation to Chambers was a deliberate

attempt to invoke constitutional principles, he could not have

expected the appellate court to discover a potential federal claim

“lurking in the woodwork.” See Kelley, 377 F.3d at 1345. Notably,

the Mateo court did not discuss or apply Chambers or federal

constitutional principles in its decision. Mateo, 932 So. 2d at

381. Additionally, the Chambers decision provided no apparent

support for Petitioner’s argument on appeal. In Chambers, the Court

held the defendant was denied his constitutional right to confront

the witnesses against him because the trial court denied his

request to cross-examine his own witness whose testimony was

“damning” to his defense. 410 U.S. at 1045-46.

On appeal, Petitioner did not argue he was denied the right

to confront witnesses against him, nor did he argue he was denied

a fair trial. Ex. I at 15. Rather, he argued the trial court abused

its discretion in finding that Mr. Straight could not be impeached

under the Florida Evidence Code because Mr. Straight did not deny

having made the prior statement.4 Id. Thus, Petitioner’s indirect

4 At trial, Mr. Straight testified that he saw Petitioner

approach the victim, who had just parked and exited his own truck.

Ex. B at 233. Mr. Straight said the victim’s toolbox, which was in

the back of the victim’s truck, was open, and the victim was

looking inside the toolbox. Id. at 234, 236. Mr. Straight testified

at trial that he did not think he saw the victim attempting to

retrieve a hammer out of his open toolbox. Id. at 234. However, on

cross-examination, he conceded he may have told Deputy Jacob,

immediately after the shooting, that he saw the victim attempting

to retrieve a hammer. Id. at 235. He stated, “I don’t remember

saying that, . . . but if that’s what [Deputy Jacob] has in my

statement then that’s what I said.” Id. Because Mr. Straight did

not deny making the prior statement, the judge denied defense

reference to Chambers constitutes the metaphoric scattering of a

needle in a haystack. See Hartge v. McDonough, 210 F. App’x 940,

943 (11th Cir. 2006) (holding the petitioner’s single reference to

a fair trial and one citation to a Supreme Court decision was “no

more than the scattering of ‘some makeshift needles in the haystack

of the state court record’” (quoting, with emphasis, McNair, 416

F.3d at 1303)).

Because Petitioner did not fairly present a federal claim on

direct appeal, ground one is unexhausted and procedurally

defaulted, and Petitioner fails to show cause for the default or

prejudice from the alleged constitutional violation. Thus,

Petitioner is not entitled to relief on ground one.

B. Ground Two

Second, Petitioner asserts the lower court “committed

fundamental error in instructing the jury on the elements of

Attempted Voluntary Manslaughter.” Petitioner at 7. Respondents

maintain Petitioner did not exhaust this claim and presents purely

a state-law issue. Resp. at 9, 14.

On direct appeal, Petitioner framed the issue as follows:

“The lower court committed fundamental error in instructing the

jury on the elements of attempted voluntary manslaughter.” Ex. I

at 16. Petitioner cited solely Florida case and statutory law in

counsel’s motion to call Deputy Jacob as a rebuttal witness. Id.

at 321.

support of his claim. Id. at 17-20. And the topic sentence for his

discussion of legal authority indicated his claim relied on the

application of state law only: “Florida law on the attempted

voluntary manslaughter instruction.” Id. at 17. Thus, because

Petitioner did not fairly present a federal claim on direct appeal,

ground two is unexhausted and procedurally defaulted, and

Petitioner fails to show cause for the default or prejudice from

the alleged constitutional violation.

Additionally, this purely state-law issue is not cognizable

on federal habeas review. The Supreme Court has emphasized “that

it is not the province of a federal habeas court to reexamine

state-court determinations on state-law questions.” Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991). Even if the trial court

incorrectly instructed the jury on the elements of attempted

voluntary manslaughter, such an error is not a basis upon which to

seek federal habeas review. See id. (holding a deficient jury

instruction “is not a basis for habeas relief” absent a showing

that the instruction itself was applied in a way that violates the

Constitution). See also Joseph v. Sec’y, Dep’t of Corr., 567 F.

App’x 893, 894 (11th Cir. 2014) (holding the petitioner failed to

raise a constitutional claim because he argued only that “the trial

court erred when it instructed the jury that intent to kill was an

element of the lesser-included crime of manslaughter”).

Petitioner does not argue the jury applied the flawed jury

instruction in a way that violates the Constitution. See Petition

at 7. He merely argues the instruction was incorrect under Florida

law. Id. As such, he fails to present a cognizable claim for this

Court’s review.

For these reasons, Petitioner is not entitled to relief on

ground two.

C. Ground Three

Third, Petitioner asserts the postconviction court erred in

finding his trial counsel was not ineffective for counsel’s failure

to move to dismiss the charges against him under Florida’s SYG

law. Petition at 8 (citing Fla. Stat. § 776.032). Other than

asserting that he had a lawful right to be where he was at the

time of the shooting and that the victim had a reputation for

violence, Petitioner does not explain why his counsel was

ineffective under the highly deferential AEDPA/Strickland

standard. See id.

Respondents counter that Petitioner could not have benefited

from SYG immunity because he was a convicted felon in possession

of a gun at the time of the shooting. Resp. at 20. Respondents

also argue Petitioner fails to allege any deficient performance by

his trial counsel prejudiced his defense. Id. at 21.

Petitioner raised this claim in his Rule 3.850 Motion.5 Ex. M

at 11. After conducting an evidentiary hearing, Ex. P, the

postconviction court found the claim without merit, Ex. Q at 6.

The Fifth DCA affirmed per curiam, Ex. U, and issued its mandate,

Ex. V. To the extent the Fifth DCA affirmed the postconviction

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. See Wilson, 138 S. Ct. at 1194. As

such, the Court will “look through” the unexplained opinion to the

postconviction court’s order on Petitioner’s Rule 3.850 Motion.

Id.

The postconviction court concluded Petitioner’s counsel was

not ineffective because Petitioner “was not eligible to claim the

[SYG] immunity” under Florida Statutes section 776.013(3) given

Petitioner was engaged in an “unlawful activity” at the relevant

time. Ex. Q at 24. The court noted Petitioner’s counsel testified

at the evidentiary hearing that “he reviewed the law [and] did not

5 Respondents contend Petitioner’s claim is partially

unexhausted because in his Rule 3.850 Motion, he challenged his

counsel’s failure to move to dismiss the charges against him before

trial. Resp. at 9. According to Respondents, Petitioner did not

reference his counsel’s failure to move for a dismissal of the

charges during trial, as he does in his Petition. Id. The Court

finds Petitioner exhausted this claim because he argued in his

Rule 3.850 Motion that his counsel was ineffective for failing to

raise the SYG defense, Ex. M at 11, and he appealed the denial of

his Rule 3.850 Motion, Ex. R.

believe the [Petitioner] was eligible to claim the immunity because

he was a convicted felon.” Id.

Petitioner is unable to establish the state court’s

adjudication of the claim was contrary to clearly established

federal law, involved an unreasonable application of clearly

established federal law, or was based on an unreasonable

determination of the facts. In its order denying Petitioner’s Rule

3.850 Motion, the postconviction court set forth the applicable

two-prong Strickland test. Id. at 1-2. The record demonstrates the

postconviction court properly applied the Strickland standard. See

Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990) (“Counsel

cannot be labeled ineffective for failing to raise issues which

have no merit.”).

Nevertheless, even if the state court’s adjudication of this

claim is not entitled to deference, Petitioner fails to assert

facts or argument showing that “no competent counsel would have

taken the action that his counsel did take.” See Grayson, 257 F.3d

at 1216 (emphasis omitted). Petitioner was represented by an

attorney, Jack Maro, during his Rule 3.850 Motion proceedings. At

the evidentiary hearing, Mr. Maro questioned Petitioner’s trial

counsel about SYG immunity, which Mr. Maro acknowledged was a

relatively new law. Ex. P at 14.

Mr. Maro asked counsel why he did not move to dismiss the

charges under the SYG law. Id. Petitioner’s trial counsel responded

that he understood the law at the time (in 2008) extended immunity

only if the person using force was not a convicted felon. Id. at

16. He testified as follows:

I think originally as written, I don’t know if

[Petitioner] was qualified for it as it was

originally written. And I think they went back

and made it so that could [sic] anybody could

file it. But I want to say originally, I

thought convicted felons weren’t eligible for

it or something to that effect. And I mean I

probably could have filed something to test

the law at that point, but I didn’t because I

read the law and I saw what the legislature

wrote, I guess.

Id. at 15-16 (emphasis added).

Petitioner does not say why his counsel’s assessment, which

counsel said was informed by his review and understanding of the

law at the time, should not be afforded deference. And, upon review

of the relevant law at the time, the Court concludes counsel’s

decision was reasonable under the circumstances. See Kimmelman v.

Morrison, 477 U.S. 365, 381 (1986) (“The reasonableness of

counsel’s performance is to be evaluated from counsel’s

perspective at the time of the alleged error and in light of all

the circumstances, and the standard of review is highly

deferential.”).

Florida’s SYG law was enacted in 2005 under Florida Statutes

chapter 766. The provision that grants immunity for the use of

force is found in section 776.032. That provision provides, “A

person who uses . . . force as permitted in s. 776.012, s. 776.013,

or s. 776.031 is justified in such conduct and is immune from

criminal prosecution . . . .” Fla. Stat. § 776.032. Per the plain

language of the statute, a person who uses force is entitled to

immunity under section 776.032 only if his conduct was permitted

under one of three other provisions. See, e.g., Little v. State,

111 So. 3d 214 (Fla. 2d DCA 2013) (explaining the history of the

SYG law and the interplay between the statutory provisions

comprising the law).

Based on the facts of Petitioner’s case, the provisions that

potentially could have applied are 776.012 and 776.013(3).6 In

2008, when Petitioner was charged, both sections 776.012 and

776.013(3) authorized the use of force if the person using force

“reasonably believ[ed] that such force [was] necessary” to prevent

“imminent death or great bodily harm,” in the case of section

776.012, or to “prevent death or great bodily harm,” in the case

of section 776.013. See Fla. Stat. §§ 776.012(1), 776.013(3)

(2005). The main difference between the two provisions, as relevant

to Petitioner’s case, was that, under the 2005 version of the SYG

law, section 776.013(3) extended immunity only if the person using

force was “not engaged in unlawful activity.” See Fla. Stat. §

6 Section 776.031 pertains to the use of force in the

protection of property. See Fla. Stat. § 776.031.

776.013(3) (2005). At the time, section 776.012 did not expressly

include such a limitation.7

In his Petition, Petitioner does not explain why the

postconviction court’s ruling was incorrect or his attorney

ineffective. It is uncontradicted that Petitioner was a convicted

felon when he shot the victim. Ex. B at 325-26, 637. Thus, the

postconviction court correctly concluded Petitioner could not have

benefitted from immunity by application of section 776.013(3)

because Petitioner was engaged in unlawful activity at the time of

the shooting (being a convicted felon in possession of a firearm).

Petitioner’s argument only becomes clear upon review of his

brief on appeal. Ex. S. On appeal, Petitioner argued, through

counsel, that his trial counsel “was not properly versed [in] or

miscalculated the law.” Id. at 19. According to Petitioner’s

appellate counsel, his trial counsel failed to appreciate that

section 766.012 did not include the “unlawful activity” exception

unlike section 766.013(3). Id. Petitioner’s appellate counsel

noted the postconviction court, too, failed to appreciate the

distinction. Id. Petitioner’s counsel encouraged the appellate

7 The legislature amended the SYG law in 2014. Section 776.012

now includes the limiting language included in section 776.013(3).

Section 776.012 now provides, “A person who uses . . . deadly force

. . . does not have a duty to retreat and has the right to stand

his or her ground if the person using . . . the deadly force is

not engaged in a criminal activity.” Fla. Stat. § 776.012(2) (2020)

(emphasis added).

court to review two cases “to fully understand” the subtle

difference between sections 776.012 and 766.013(3). Id. at 20

(citing Miles v. State, 162 So. 3d 169 (Fla. 5th DCA 2015); Dorsey

v. State (Dorsey II), 149 So. 3d 144 (Fla. 4th DCA 2014)).

Contrary to Petitioner’s argument in his appellate brief, it

does not appear his trial counsel was misinformed or “not properly

versed” in the law. See Ex. S at 19. In fact, Petitioner’s counsel

testified at the evidentiary hearing that he considered whether he

had a good-faith argument to assert SYG immunity and concluded,

based on his understanding of the law at the time, that such an

argument would have been meritless. Ex. P at 15-16.

Upon review of the applicable law at the time, Petitioner’s

counsel’s understanding of the SYG law was reasonable. The 2005

version of section 766.013(3), which courts commonly referred to

as the “Stand Your Ground” law, provided as follows:

A person who is not engaged in an unlawful

activity and who is attacked in any other

place where he or she has a right to be has no

duty to retreat and has the right to stand his

or her ground and meet force with force,

including deadly force . . . .

Fla. Stat. § 766.013(3) (2005). See, e.g., State v. Hill (Hill I),

95 So. 3d 434, 435 (Fla. 4th DCA 2012) (describing the SYG law as

being codified in section 766.013(3), which includes the “unlawful

activity” exception); Dorsey v. State (Dorsey I), 74 So. 3d 521,

527 (Fla. 4th DCA 2011) (same).

The 2005 version of section 776.012 provided as follows:

[A] person is justified in the use of deadly

force and does not have a duty to retreat if:

(1) He or she reasonably believes that such

force is necessary to prevent imminent death

or great bodily harm to himself or herself or

another or to prevent the imminent commission

of a forcible felony; or

(2) Under those circumstances permitted

pursuant to s. 776.013.

Fla. Stat. § 766.012 (2005). This provision included no express

“unlawful activity” exception, though some practitioners and

courts interpreted section 766.012 as engrafting onto it, by

reference to section 766.013, the “unlawful activity” exception

contained in that provision. In fact, Florida appellate courts

eventually started to note and address the controversy the 2005

law sparked regarding whether section 776.012, by reference to

section 776.013, incorporated the “unlawful activity” exception.

See, e.g., Hill v. State (Hill II), 143 So. 3d 981, 984 (Fla. 4th

DCA 2014). See also Brown v. State, 135 So. 3d 1160, 1160 n.1,

1162 (Fla. 4th DCA 2014).

Given the controversy engendered by the 2005 law, in 2013,

the Second DCA certified a question to the Florida Supreme Court,

which pinpointed a perceived inter-district conflict. See Little,

111 So. 3d at 222-23. In Little, the court held the defendant was

entitled to immunity under section 776.012(1) even though his use

of force was not permitted under section 776.013(3) because the

“unlawful activity” exception applied. Id. at 222. The Second DCA

noted that a Fourth DCA decision, Hill I, could be read broadly as

holding the opposite—“that a defendant who is engaged in an

unlawful activity is not entitled to immunity under section

776.032(1),” which incorporates by reference section 776.012. Id.

(emphasis added).

Recognizing that its decision conflicted with the Fourth

DCA’s Hill I decision, the Second DCA certified the following

question to the Florida Supreme Court: “Is a defendant who

establishes . . . that his use of deadly force is permitted in

section 776.012(1), Florida Statutes (2009), entitled to immunity

under section 776.032(1) even though he is engaged in an unlawful

activity at the time he uses the deadly force?”8 Id. Significantly,

the court noted that it could find no case law addressing this

specific issue. Id.

After the Little decision, there was a flurry of case law

clarifying that sections 776.012 and 776.013(3) provide distinct

avenues through which to invoke immunity under section 776.032,

and that only one section conditioned immunity on a person’s lawful

conduct.9 The Fourth DCA even issued a decision to “eliminate any

8 The Florida Supreme Court did not exercise its discretion

to resolve the perceived conflict.

9 In addition to the decisions discussed in this Order, see,

for example, Miles, 162 So. 3d at 171-72 (agreeing with the Second,

Third, and Fourth DCAs that a defendant who is unable to proceed

perceived conflict between [the DCA’s] positions on this issue.”

Hill II, 143 So. 3d at 983 n.2. The Fourth DCA receded from its

statement in Hill I “that a felon in possession of a firearm cannot

claim immunity ‘under the Stand Your Ground law’ because the

statement unintentionally went beyond the statutory provision at

hand – section 766.013(3).” Id. at 985 (emphasis in original). See

also Brown, 135 So. 3d at 1160 n.1, 1162 (noting the imprecise

common parlance “Stand Your Ground” should be avoided because it

caused confusion as “illustrated by the certified conflict”

presented in the Little decision).

Upon careful review of case law interpreting the pre-2014 SYG

law, and of the law itself, Petitioner fails to demonstrate his

trial counsel’s performance was deficient under Strickland simply

because counsel failed to know in 2008 what Florida appellate

courts did not make clear until at least 2014. The two cases

Petitioner cited in his appellate brief certainly illuminate the

issue and eviscerate any doubt whether the 2005 version of section

776.012 incorporated the “unlawful activity” exception expressly

included in section 776.013(3). However, Miles and Dorsey II were

under section 776.013(3) because of the “unlawful activity”

prohibition may proceed under the pre-2014 version of section

776.012(1)), and Garrett v. State, 148 So. 3d 466, 471 (Fla. 1st

DCA 2014) (citing with approval Little and Hill II in rejecting

the State’s argument that the self-defense privilege extended

under all provisions of the SYG law is “reserved for law-abiding

citizens only”).

decided many years after Petitioner was arrested and tried.10 As

discussed, at least before 2013, the apparent understanding of the

SYG law was that immunity was unavailable to convicted felons in

possession of guns.

Even if Petitioner’s trial counsel could have argued in 2008

that section 776.012 should apply regardless of a defendant’s

unlawful activity, under the circumstances, his failure to do so

was reasonable. See Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000)

(“The relevant question is not whether counsel’s choices were

strategic, but whether they were reasonable.”). The Strickland

standard does not demand criminal defense attorneys be legal

trailblazers or statutory interpretation scholars. Bates v. Sec’y,

Fla. Dep’t of Corr., 768 F.3d 1278, 1295 (11th Cir. 2014) (“[The

Strickland] test ‘has nothing to do with what the best lawyers

would have done. . . . [or] even what most good lawyers would have

done.”).

Accordingly, Petitioner fails to demonstrate his trial

counsel’s performance was deficient. See Brown v. United States,

219 F. App’x 917, 918 (11th Cir. 2007) (“Unless the petitioner can

rebut the ‘strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance,’ he cannot

establish that counsel’s performance was constitutionally

10 Petitioner was charged by Information on November 13, 2008,

see Ex. A, and his trial began in May 2010, see Ex. B.

deficient.”). But assuming counsel’s performance was deficient,

Petitioner is unable to demonstrate prejudice. Other than by

speculation and conjecture, Petitioner does not assert a motion to

suppress his charges under the SYG law, as interpreted in 2008,

would have succeeded. Notably, the postconviction court agreed

with trial counsel’s assessment of the law, concluding that section

776.013(3)’s “unlawful activity” exception would have barred

Petitioner from seeking SYG immunity.11

For the above reasons, Petitioner is not entitled to relief

on ground three.

D. Ground Four

Fourth, Petitioner asserts the postconviction court erred in

denying his ineffective assistance of counsel claim relating to a

jury instruction. Petition at 10. Petitioner states his trial

counsel did not object to a “flawed Standard Jury Instruction of

Attempted Voluntary Manslaughter.” Id. Petitioner asserts the

Florida Supreme Court, the month before his trial, held the

11 Ironically, Petitioner’s imprecise nomenclature in his Rule

3.850 Motion illustrates the confusion engendered by the 2005

version of the SYG law. In his Rule 3.850 Motion, Petitioner simply

asserted he was entitled to immunity under the “Stand Your Ground”

law, which he cited by reference to the overarching provision,

section 766.032. See Ex. M at 11. In his three-sentence argument,

Petitioner made no reference to, or distinction between, sections

776.012 or 776.013(3). Id.

standard jury instruction for attempted voluntary manslaughter was

“inappropriate.” Id.

Petitioner raised this claim as ground four in his Rule 3.850

Motion. Ex. M at 11. The postconviction court found Petitioner was

not entitled to relief. Ex. Q at 6-7. The Fifth DCA affirmed per

curiam. Ex. U. To the extent the Fifth DCA affirmed the

postconviction 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. See Wilson, 138 S. Ct.

at 1194. As such, the Court will “look through” the unexplained

opinion to the postconviction court’s order on Petitioner’s Rule

3.850 Motion. Id.

In its order denying Petitioner’s Rule 3.850 Motion, the

postconviction court found trial counsel was not deficient because

the Florida Supreme Court’s decision, issued before the trial,

“did not become final until June 28, 2010 [after Petitioner’s

trial], when a motion for rehearing was denied.” Ex. Q at 7. The

postconviction court noted the law in effect at the time was that

stated in the Fifth DCA case Barton v. State, 507 So. 2d 638 (Fla.

5th DCA 1987), with which the jury instruction complied. Id. The

court concluded as follows:

Because the jury instruction given at

[Petitioner’s] trial was proper, given the law

at the time of the [Petitioner’s] trial, the

Court finds that [trial counsel] was not

ineffective in failing to object to the

attempted voluntary manslaughter instruction.

… Here, there was no deficient performance …

and the [Petitioner] has failed to establish

that there was a reasonable probability a

different instruction would have been given to

the jury had [counsel] objected.

Id.

Petitioner’s counsel does not explain why the postconviction

court’s adjudication of the claim was contrary to or an

unreasonable application of Strickland. See Petition at 10. Nor

does counsel address either Strickland prong. Id. As such,

Petitioner is unable to establish the state court’s adjudication

of the claim was contrary to clearly established federal law,

involved an unreasonable application of clearly established

federal law, or was based on an unreasonable determination of the

facts.12 In its order denying Petitioner’s Rule 3.850 Motion, the

postconviction court set forth the applicable two-prong Strickland

test. Id. at 1-2. The record demonstrates the postconviction court

properly applied the Strickland standard.

Nevertheless, even if the state court adjudication of this

claim is not entitled to deference, and assuming counsel’s

performance was deficient, Petitioner fails to demonstrate

prejudice. Petitioner was charged with attempted first-degree

12 To the extent Petitioner asserts the improper instruction

amounts to trial court error, his claim is not cognizable on

federal habeas review. See Joseph, 567 F. App’x at 894.

murder, Ex. A, which requires the State to prove Petitioner “did

some act intended to cause the death of [the victim].” Ex. C

(emphasis added). The jury found Petitioner guilty as charged. Ex.

D.

Petitioner contests not the jury instruction for attempted

first-degree murder, but for the lesser-included offense of

attempted voluntary manslaughter. See Petition at 10. In pertinent

part, the trial judge charged the jury as follows:

To prove the crime of Attempted Voluntary

Manslaughter, the State must prove the

following element beyond a reasonable doubt:

[Petitioner] committed an act, which was

intended to cause the death of [the victim]

and would have resulted in the death of [the

victim] except that someone prevented

[Petitioner] from killing [the victim] or he

failed to do so.

Ex. C. (emphasis added).

Petitioner maintains his attorney should have objected to the

attempted voluntary manslaughter instruction because, the month

before his trial, the Florida Supreme Court issued a decision

holding “intent to kill” is not an element of the crime of

manslaughter. See Petition at 10; Ex. S at 28 (citing Montgomery

v. State, 39 So. 3d 352 (Fla. 2010)). Assuming the reference to an

intent to cause death was incorrect, the same instruction informed

the jury that a premeditated intent to cause death is not an

element of the crime of attempted voluntary manslaughter. Ex. C.

The instruction included the following additional language:

In order to convict of attempted

voluntary manslaughter[,] it is not necessary

for the State to prove that the [Petitioner]

had a premeditated intent to cause death, only

an intent to commit an act which caused death.

Id.

To the extent the jurors were confused as to whether intent

to cause death was an element of attempted voluntary manslaughter,

any such confusion had no impact on the outcome of the trial. The

jury found Petitioner acted with an intent to kill the victim, as

is evident from the verdict for attempted first-degree murder. See

Ex. D. Accordingly, even if Petitioner’s counsel should have

objected to the standard jury instruction, Petitioner fails to

demonstrate a reasonable probability that, but for counsel’s

deficiencies, the result of the proceeding would have been

different. See Strickland, 466 U.S. at 695. Petitioner’s implicit

suggestion to the contrary is not only vague but speculative. Thus,

Petitioner is not entitled to relief on ground four.

Accordingly, it is now

ORDERED AND ADJUDGED:

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

DENIED.

2. This action is DISMISSED WITH PREJUDICE.

3. The Clerk shall enter judgment accordingly and close

this case.

4. If Petitioner appeals the denial of his Petition, the

Court denies a certificate of appealability.!* 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 30th day of

June 2020.

4 De

af J. DAVIS

United States District Judge

Jax-6

Cc:

Counsel of Record

13 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(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. 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.

33