# Johnson v. Secretary, Department of Corrections

> District Court, M.D. Florida · July 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10105513

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 7, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10105513

## How later opinions describe it (automated extraction)

- 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”
- 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)
- 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
- recognizing speculative assertions do not pass muster under a federal court’s “doubly deferential review”

## Opinion text

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

28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105513. Public record. Not legal advice.