Johnson v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

GEORGE JOHNSON,

Petitioner,

v. Case No. 5:17-cv-301-Oc-39PRL

SECRETARY, DEPARTMENT

OF CORRECTIONS and FLORIDA

ATTORNEY GENERAL,

Respondents.

_______________________________

ORDER

I. Background

Petitioner, George Johnson, is proceeding pro se on a Petition

for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1;

Petition). Petitioner challenges his 2011 state court (Marion

County) conviction for armed burglary of an occupied dwelling with

battery for which he is serving a life sentence. See Petition at

1. Petitioner raises six grounds for relief, which he presents as

two. In ground one, Petitioner asserts the trial court erred in

instructing the jury to disregard testimony about a picture. In

ground two, which has five sub-parts, Petitioner asserts his trial

counsel was ineffective for counsel’s failure to (1) convey a plea

offer, (2) investigate the case, (3) move for a judgment of

acquittal, (4) object to the verdict form, which did not require

the jury to indicate whether it found Petitioner possessed a weapon

during the burglary, and (5) object to a sleeping juror.

Respondents assert both procedural and merits-based defenses

(Doc. 11; Resp.). Petitioner filed a reply (Doc. 16; Reply).

II. Timeliness

Respondents concede Petitioner timely filed his Petition. See

Resp. at 5. Accordingly, the Court accepts as undisputed that the

Petition is timely.

III. Evidentiary Hearing

Petitioner requests an evidentiary hearing. See Petition at

22; Reply at 3, 5, 6. Petitioner has the burden to establish an

evidentiary hearing is necessary. See Chavez v. Sec’y, Fla. Dep’t

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

petitioner bears the burden of establishing the need for an

evidentiary hearing with more than speculative claims of need).

Petitioner “has not identified, much less proffered, any

additional evidence” he would present in support of his grounds

for relief. See Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003). And, upon review, the Court can “adequately assess

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

Accordingly, Petitioner is not entitled to an evidentiary hearing.

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

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 (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 because “[f]ederal habeas

courts . . . 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, 566 U.S. 1, 9 (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). 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

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

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)).

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

Petitioner asserts the trial court erred in instructing the

jury “not to consider argument or testimony regarding [a] picture.”

Petition at 5. He claims the state court’s adjudication of the

claim was contrary to or involved an unreasonable application of

federal law, referencing only by label the Sixth and Fourteenth

Amendments. Id. at 6.

Respondents contend ground one is unexhausted because

Petitioner did not present to the state appellate court a federal

claim. Resp. at 7-8. Additionally, Respondents assert, ground one

involves purely a state-law issue. Id. at 16. In his reply,

Petitioner asserts he exhausted ground one because his attorney

filed an Anders2 brief on direct appeal, and because he references

the Sixth and Fourteenth Amendments in his Petition. Reply at 1.

To exhaust a claim, a federal habeas petitioner must have

“fairly presented” a federal claim to the state courts. McNair v.

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

Connor, 404 U.S. 270, 275 (1971)). In other words, in the state

court, a petitioner must have “plainly defined” the federal

question. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1345

(11th Cir. 2004). It is not enough that a habeas petitioner briefed

an issue on appeal without identifying it as a federal claim.

Nelson v. Sec’y, Fla. Dep’t of Corr., 610 F. Supp. 2d 1323, 1332

(M.D. Fla. 2009) (“Briefing an issue as a matter of state law … is

not sufficient to exhaust a federal claim of the equivalent

ground.”).

2 Anders v. California, 386 U.S. 738 (1967).

Upon review of his Anders brief, Ex. G, it is apparent

Petitioner did not exhaust this ground for relief. In his Anders

brief, Petitioner’s counsel identified as a possible issue for

review the trial court’s instruction to the jury to ignore

testimony or defense counsel’s argument about the lack of a photo

lineup. Ex. G at i, 5-6.3 Petitioner’s counsel did not fairly

present a federal claim to the state appellate court, but rather

presented the issue as one of potential trial court error under

state law. Petitioner’s counsel did not even cite a federal case

or constitutional provision, which could possibly have alerted the

appellate court to a federal claim. Id. at ii-iii. Cf. Sandstrom

v. Butterworth, 738 F.2d 1200, 1206 (11th Cir. 1984) (holding the

petitioner exhausted his claim because a review of the appellate

court’s opinion, which referenced a landmark Supreme Court

decision, “ma[de] it clear that the court was aware of a federal

constitutional basis for petitioner’s claim”).

Petitioner declined to submit a pro se brief. In fact, he

notified the appellate court that he had reviewed his counsel’s

brief and the transcript and accepted his counsel’s Anders brief.

Ex. J. Thus, the appellate court was presented with only a state-

law issue, as presented in Petitioner’s Anders brief, which did

3 Exhibits are referenced according to the State’s letter

designations in their Appendix (Doc. 11-1). Pinpoint citations are

to the internal page numbers for each exhibit.

not identify a federal claim or reference a federal source of law.

And Petitioner, by declining to file his own brief, chose not to

present a federal claim to the appellate court for its review. The

appellate court affirmed Petitioner’s conviction in a per curiam

opinion, Ex. K, and issued its mandate, Ex. M.

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

In his second ground for relief, which Petitioner identifies

as ground two sub-claim one, Petitioner asserts his counsel was

ineffective for failing to communicate a plea offer by the State.

Petition at 9. Plaintiff says his counsel did not inform him of

the State’s plea offer until after trial. Id. Petitioner contends

that, had he learned of the plea offer, he would have accepted it.

Id. at 11.4

4 Petitioner also complains the postconviction court denied

his motion for appointment of counsel to assist him during the

postconviction phase, which hampered his ability to effectively

present evidence at the evidentiary hearing. Petition at 10; Reply

at 2. Petitioner does not raise this as a separate claim.

Additionally, such a claim, even if Petitioner had raised it

separately, is not cognizable on federal habeas review because it

involves an alleged error of state law. See Estelle v. McGuire,

502 U.S. 62, 67 (1991). Prisoners are not constitutionally entitled

to the appointment of counsel during postconviction proceedings.

Petitioner raised this claim as ground one in his motion for

postconviction relief under Florida Rule of Criminal Procedure

3.850 (Rule 3.850 Motion). Ex. N-1 at 2. After conducting an

evidentiary hearing on this claim, Ex. Q, the postconviction court

denied it. Ex. R at 2. Petitioner appealed the denial of his Rule

3.850 Motion to Florida’s Fifth District Court of Appeal (Fifth

DCA). Ex. U. The Fifth DCA affirmed the postconviction court’s

order per curiam, Ex. X, and issued its mandate, Ex. Y.

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 denying Petitioner’s claim, the postconviction court noted

the State conveyed a written plea offer to Petitioner on March 11,

2008, years before Petitioner’s trial. Ex. R at 2. The written

plea offer, the court noted, included the following language in

enlarged, bold, and underlined font: “This plea offer expires on

Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (noting that

“fundamental fairness mandated by the Due Process Clause does not

require that the State supply a lawyer” when a defendant chooses

to collaterally attack his conviction).

May 10, 2008.” Id.5 The postconviction court found credible

counsel’s testimony at the evidentiary hearing that it was her

practice to convey plea offers to her clients, “which is what she

did in [Petitioner’s] case.” Id. at 2. Additionally, the court

found Petitioner failed to demonstrate prejudice resulted from any

alleged deficiency in counsel’s performance because “there is no

reasonable probability [he] would have accepted the 15-year plea

offer,” given his counsel testified that Petitioner told her he

would not “accept of a plea offer of more than 10 years.” 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.

Moreover, this Court must defer to the state court’s findings

of fact, 28 U.S.C. § 2254(e)(1), including applying deference to

the postconviction court’s credibility determinations, Baldwin v.

5 According to the state docket, the trial court appointed

the office of the public defender on March 10, 2008, and Petitioner

entered a plea of not guilty on March 14, 2008. See Online Court

Records Search for Marion County, Florida, available at

https://www.civitekflorida.com/ocrs/county/42/ (last visited June

26, 2020).

Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) (noting a federal

court, on habeas review, “must accept the state court’s credibility

determination,” applying a “presumption of correctness” (citing

Coulter v. Herring, 60 F.3d 1499, 1503 (11th Cir. 1995))). See

also Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842, 845 (11th

Cir. 2011) (“Determining the credibility of witnesses is the

province and function of the state courts, not a federal court

engaging in habeas review.”).

Accordingly, this Court must accept the postconviction

court’s credibility determination and its finding that

Petitioner’s counsel conveyed the plea offer to Petitioner.

Petitioner has not rebutted the presumption of correctness by clear

and convincing evidence. See 28 U.S.C. § 2254(e)(1). For these

reasons, Petitioner is not entitled to relief on this claim.

C. Ground Three

In his third ground for relief, which Petitioner identifies

as ground two sub-claim two, Petitioner asserts his trial counsel

was ineffective for her failure to investigate his case. Petition

at 11. Petitioner contends, had his counsel followed up on

information he told her, she would have discovered he had been

misidentified and was never at the crime scene. Id. Petitioner

says his counsel’s deficient performance prejudiced him because,

had his counsel properly investigated, the result of the case would

have been different because he “would have entered [a] plea.” Id.

at 12.6

Petitioner raised this claim as ground two in his Rule 3.850

Motion. Ex. N-1 at 3. As he does in his Petition, Petitioner argued

he told his trial counsel there was a second red car with a white

bumper in town, but his counsel did not attempt to locate the

second car despite the fact that witnesses connected him to the

scene of the crime in part based on the description of a vehicle.

Ex. N-1 at 3; Ex. N-2 at 2-3. The postconviction court denied the

claim without the necessity of an evidentiary hearing. Ex. O at 3.

The Fifth DCA affirmed the postconviction court’s order per curiam.

Ex. X. 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

6 Respondents maintain Petitioner only partially exhausted

this claim because in his Rule 3.850 Motion, he did not argue he

would have accepted the plea but rather argued the outcome of the

trial would have been different. Resp. at 9. The Court finds

Petitioner exhausted this claim. Because Petitioner is proceeding

pro se, the Court must liberally construe his filings. In both his

pro se Rule 3.850 Motion and his Petition, Petitioner asserts had

his counsel adequately investigated the case, the result of the

proceedings would have been different, citing the Strickland

standard. See Petition at 11; Ex. N-2 at 3. Respondents assert the

same partial-exhaustion defense with respect to grounds four and

five (identified in the Petition as grounds two sub-claim three

and two sub-claim four, respectively). For the reasons stated here,

the Court finds Respondents’ argument in this regard unpersuasive.

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

Id.

In denying Petitioner’s claim, the postconviction court

referenced the 2009 deposition of Daryl Johnson, the brother of

Petitioner’s co-defendant, Vernon. Ex. O at 3. At deposition, Daryl

testified he purchased a red Mercury Cougar for his son, but he

allowed Vernon to use the car. The postconviction court explained

that Daryl’s deposition testimony “directly linked” Petitioner to

the Mercury Cougar:

On February 4, 2008, the day of the Armed

Burglary, Vernon asked Daryl for the keys to

the Cougar and borrowed it. After the

burglary, Daryl saw an article in the

newspaper that named the [Petitioner] as a

suspect for the crime and that the article

mentioned a vehicle with a mask. After reading

the article Daryl called law enforcement. The

part of the article that stuck out to Daryl

was the mention of the mask.[7] He bought the

mask around Halloween and put it in the car as

a decoration. The article also described the

car as red with a white bumper, which is what

the Cougar was, and that there was a missing

mask. Daryl searched the car for the mask but

was unable to find it.

Based on the deposition testimony of

Daryl Johnson that directly linked

[Petitioner] to the car, it cannot be shown

that he was prejudiced by Counsel failing to

investigate the potential existence of another

red car with a white bumper . . . .

Id.

7 The victims testified at trial that Petitioner’s co-

perpetrator wore a mask during the burglary. Ex. B at 28, 62-63,

78.

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.

Petitioner’s conclusory and self-serving assertion that his

counsel’s performance prejudiced him is insufficient to overcome

AEDPA’s and Strickland’s doubly deferential review. See Fayson v.

Sec’y, Fla. Dep’t of Corr., 568 F. App’x 771, 774 (11th Cir. 2014)

(recognizing speculative assertions do not pass muster under a

federal court’s “doubly deferential review”).

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

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

counsel’s performance was deficient, Petitioner fails to

demonstrate prejudice under the deferential Strickland standard.

Assuming another red car with a white bumper was in the area on

the day of the burglary, the State presented overwhelming evidence

of Petitioner’s guilt. First, and most damaging to Petitioner’s

defense, the three victims testified against him. All three not

only identified Petitioner in court as one of the armed burglars

(who was not wearing a mask), but they also testified that,

immediately after the burglary and before the police arrived, they

identified Petitioner through a photograph they saw online. Ex. B

at 35-36, 64, 81.

Additionally, a witness testified he called the police on the

night of the burglary because he saw a vehicle he had never seen

before in the small, tight-knit community: a red car with a white

bumper. Id. at 97, 101. That witness was unable to identify the

driver, id., but a different witness, who was familiar with

Petitioner, testified to having seen Petitioner on the day of the

burglary riding in a red car with a white bumper. Id. at 104. At

trial, that witness identified Petitioner as the man she saw riding

in the car on the day of the burglary. Id. at 105.

Even without testimony about a suspicious car in the area

that a witness linked to Petitioner, given the victims’ consistent

testimony, the State would have proven its case against Petitioner.

Petitioner fails to argue, much less demonstrate, why the existence

of another similar car would have changed the outcome.8 Thus,

Petitioner fails to demonstrate his counsel’s decision not to

8 Petitioner also does not explain why he would have entered

a plea had his attorney investigated the case more thoroughly.

Notably, the record shows the last plea offer the State extended

was before trial, and Petitioner declined the offer. Ex. Q at 9-

10. According to the state docket, the plea cut off date before

trial was April 15, 2011. See Online Court Records Search for

Marion County, Florida, available at

https://www.civitekflorida.com/ocrs/county/42/ (last visited June

26, 2020).

investigate whether a second red car with a white bumper was in

the area prejudiced his defense. See Richter, 562 U.S. at 112 (“The

likelihood of a different result must be substantial, not just

conceivable.”).

For the above reasons, Petitioner is not entitled to relief

on this claim.

D. Ground Four

In ground four, which Petitioner identifies as ground two

sub-claim three, Petitioner asserts his counsel was ineffective

for not moving for a judgment of acquittal at the close of the

State’s case. Petition at 12. Petitioner contends his attorney

effectively conceded his guilt by failing to argue the State did

not present a prima facie case. Id.

Petitioner raised this claim as ground three in his Rule 3.850

Motion. Ex. N-1 at 4. The postconviction court denied Petitioner’s

claim without the necessity of an evidentiary hearing, Ex. O at 4-

7, and the Fifth DCA affirmed per curiam, Ex. X. 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 denying Petitioner’s claim, the postconviction court noted

Petitioner’s counsel did not concede his guilt but rather

acknowledged a motion for judgment of acquittal would have failed

because the State established a prima facie case. Ex. O at 5, 7.9

After quoting the relevant jury instructions, the court explained

the State presented evidence on all elements of the crime charged:

The testimony of [the victims], when

viewed in the light most favorable to the

State, established a prima facie case.

T’Neisha testified that she did not give the

[Petitioner] permission to come into her home

[relevant to the “unlawful entry” and intent

elements]. Jeanette testified that two men,

one with a knife and one with a rifle, entered

the home. The man with the rifle was wearing

a mask. Jeanette identified the man with the

knife as the [Petitioner]. She further

testified that the [Petitioner] grabbed her by

her hair and held the knife up to her and said

“Give me your money” [relevant to whether

Petitioner was armed with a dangerous weapon

and engaged in an assault or battery]. The

[Petitioner] also tried to pull Jeanette’s

rings from her fingers [relevant to whether

Petitioner engaged in an assault or battery].

Kayla’s testimony was consistent with the

other two women’s testimony.

The [Petitioner’s] motion fails to show

any likelihood that a motion for a judgment of

acquittal would have been successful. This

claim is without merit.

Id. at 6-7 (internal citations omitted).

9 Petitioner’s counsel informed the court she would not be

making a motion after the jury left the courtroom. Ex. O at 5.

Thus, even if her comment could have suggested to a layperson she

was “conceding” her client’s guilt, the jurors did not hear the

comment.

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, e.g., Senelus v. Attorney Gen., Fla., 806 F. App’x 806, 809

(11th Cir. 2020) (holding Petitioner failed to demonstrate his

counsel’s conduct was deficient because counsel chose not to

advance a meritless motion (citing Bolender v. Singletary, 16 F.3d

1547, 1573 (11th Cir. 1994))). Thus, Petitioner is not entitled to

relief on this claim.

E. Ground Five

In ground five, which Petitioner identifies as ground two

sub-claim four, Petitioner asserts his counsel was ineffective for

her failure to object to the jury verdict insofar as the verdict

form did not require the jury to explicitly indicate Petitioner

possessed a weapon at the time of the burglary. Petition at 14.

Petitioner says, if not for counsel’s deficient performance, he

would have entered a plea. Id. at 15.10

10 In addition to asserting Petitioner only partially

exhausted this claim because he did not argue in his Rule 3.850

Petitioner raised this claim in his Rule 3.850 Motion, Ex. N-

1 at 5; Ex. N-2 at 5, and appealed the postconviction court’s

ruling, Ex. U. The Fifth DCA affirmed per curiam. Ex. X. 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.

Without the necessity of an evidentiary hearing, the

postconviction court found Petitioner’s claim was “not supported

by the record” because the jury found him guilty of “armed

burglary” as opposed to “burglary.” Ex. O at 7. As such, the

verdict implies the jury found Petitioner “possessed or used a

weapon during the commission of the burglary.” 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

Motion that he would have entered a plea but for counsel’s

deficient performance, Respondents argue this ground for relief

does not present a federal question because Petitioner contests

the sufficiency of the verdict form. Resp. at 10, 17. Petitioner

contends his counsel was ineffective under the Sixth Amendment.

Thus, he raises a federal question.

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.

Accordingly, Petitioner is not entitled to relief on this claim.

F. Ground Six

In his final ground for relief, which Petitioner identifies

as ground two sub-claim five, Petitioner asserts his trial counsel

was ineffective for her failure to object to a sleeping juror.

Petition at 15. Petitioner says he told his attorney, during trial,

that one of the jurors had been sleeping. Id. According to

Petitioner, his counsel said she would “observe the juror” and

concluded the juror had only been “resting his eyes.” Id. at 15-

16. Petitioner contends he asked his attorney to request the juror

be removed, and counsel declined to do so. Id. at 16. But for

counsel’s deficient performance, Petitioner asserts, the result

would have been different because he would have entered a plea.

Id. at 17.

Petitioner raised this claim as ground six in his Rule 3.850

Motion. Ex. N-1 at 6; Ex. N-2 at 7. After conducting an evidentiary

hearing at which Petitioner’s counsel testified Petitioner did not

inform her of the possibility of a sleeping juror, Ex. Q, the

postconviction court denied Petitioner’s claim, Ex. R at 4.

Petitioner appealed to the Fifth DCA, Ex. U, though he did not

brief the issue and instead “adopt[ed] the argument put forth in

his [Rule 3.850] motion,” Ex. V at 16.

Respondents argue this ground is unexhausted and procedurally

defaulted because Petitioner, in his brief on appeal, simply

referenced his Rule 3.850 Motion and failed to brief the issue.

Resp. at 11. In his reply, Petitioner asserts he is entitled to

the benefit of the ruling in Martinez because he was not

represented by counsel during his postconviction proceedings.

Reply at 6.

To preserve an issue for appeal in Florida, an appellant must

elucidate the issue, not “merely refer to arguments presented

during the postconviction proceedings.” Doorbal v. State, 983 So.

2d 464, 482 (Fla. 2008). The Eleventh Circuit presumes “that when

a procedural default is asserted on appeal and the state appellate

court has not clearly indicated that in affirming it is reaching

the merits, the state court’s opinion is based on the procedural

default.” Bennett v. Fortner, 863 F.2d 804, 807 (11th Cir. 1989).

When a state court applies a firmly established procedural rule in

denying a claim, a petitioner may not seek federal review. See

Martinez, 556 U.S. at 9. However, “a procedural default will not

bar a federal habeas court from hearing a substantial claim of

ineffective assistance at trial if, in the initial-review

collateral proceeding, there was no counsel or counsel in that

proceeding was ineffective.” Id. at 17. A claim is substantial if

it has “some merit.” Id. at 14.

In its answer brief to the Fifth DCA, the State argued

Petitioner abandoned this claim since he failed to brief it in

contravention of the Florida Rules of Appellate Procedure. Ex. W

at 6, 17. Petitioner did not file a reply brief. The Fifth DCA

affirmed per curiam. Ex. X. Because the State asserted on appeal

that Petitioner abandoned his claim, the Fifth DCA’s per curiam

affirmance is presumed to be based on the procedural default, which

was firmly established in Florida. See Bennett, 863 F.2d at 807.

See also Doorbal v. Dep’t of Corr., 572 F.3d 1222, 1228 (11th Cir.

2009) (recognizing the Supreme Court of Florida regularly applies

its well-established rule that a claim is waived on appeal if the

appellant fails to argue the merits of the issue and instead

references arguments asserted below (citing cases)). Accordingly,

Petitioner’s claim is unexhausted and procedurally defaulted.

Petitioner argues his procedural default is excusable because

he was not represented by counsel during his postconviction

proceedings. Reply at 6. Even though Petitioner was not represented

during his Rule 3.850 proceedings, he fails to demonstrate the

narrow Martinez exception applies because his ineffective-

assistance-of-counsel claim lacks merit. As to Strickland’s

performance prong, this Court applies a strong presumption in favor

of competence. See Anderson v. Sec’y, Fla. Dep’t of Corr., 752

F.3d 881, 904 (11th Cir. 2014). On this record, there is no

evidence showing counsel’s representation fell outside the wide

range of reasonably professional assistance. Petitioner’s counsel

testified at the evidentiary hearing that Petitioner did not inform

her during trial of a sleeping juror. Ex. Q at 10, 11. Counsel

said that if she had been made aware of the issue during trial,

she would have approached the bench to alert the trial judge.11 Id.

And had counsel later become aware of a potentially sleeping juror,

she would have “ordered a copy of the video recording, and . . .

filed a motion for new trial.” Id. at 10. This Court must accept

the postconviction court’s determination that counsel’s testimony

was credible and that she did not notice a sleeping juror. See

Baldwin, 152 F.3d at 1316; Consalvo, 664 F.3d at 845. Petitioner

has not rebutted the presumption of correctness by clear and

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

As to the prejudice prong, Petitioner’s speculative assertion

that the outcome of the case would have been different had his

attorney objected to an alleged sleeping juror does not satisfy

the Strickland standard. As discussed above, the evidence of

Petitioner’s guilt was overwhelming. See Tejada v. Dugger, 941

F.2d 1551, 1559-60 (11th Cir. 1991) (holding the petitioner failed

11 Additionally, the trial judge noted on the record that “the

Court looks at jurors during the trial too, and if the Court sees

one that appears to be sleeping or drowsy, [the Court will] take

a recess.” Ex. Q at 14.

to demonstrate his counsel’s alleged errors prejudiced his defense

because his allegations were conclusory and the evidence against

him was overwhelming).

Considering the above, Petitioner fails to demonstrate a

substantial ineffective-assistance-of-counsel claim to benefit

from the Martinez exception. Thus, his procedural default cannot

be excused. Petitioner is not entitled to relief on this claim.

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.12 The Clerk shall

terminate from the pending motions report any motion to proceed on

12 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.

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 7th day of

July 2020.

4 7 De

af J. DAVIS

United States District Judge

Jax-6

Cc:

George Johnson

Counsel of Record

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