Turner v. Secretary, Florida Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ZACHERY KEITH TURNER,

Petitioner,

vs. Case No.: 3:17-cv-888-J-32MCR

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS,

Respondent.

/

ORDER

I. Status

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

filing a pro se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc.

1) and accompanying exhibits (Docs. 1-1 through 1-10, “Pet. Ex. __.”). He

challenges a state court (Duval County, Florida) judgment of conviction and

sentence for lewd and lascivious battery on a person less than 16 years of age.

Respondent opposes the Petition. (Docs. 25, 28). Petitioner filed a reply brief

(Doc. 30), and supplemental authority (Docs. 37, 41). The case is ripe for review.

II. Procedural Background

On April 14, 2011, Petitioner was charged by information with one count

of lewd and lascivious battery on a person less than 16 years of age, in violation

of Florida Statutes Section 800.04(4). (Resp. Ex. B1 at 14).1 Petitioner was

accused of sexually battering a runaway girl named D.S., whom he met while

working as a cab driver. Petitioner sought to represent himself at trial and,

after a hearing pursuant to Faretta v. California, 422 U.S. 806 (1975), the trial

court ruled Petitioner competent to waive the right to an attorney. (Resp. Ex.

B7 at 20-38). As such, Petitioner proceeded to trial pro se, but with the

assistance of standby counsel. A jury trial was held on September 30, 2011

(Resp. Ex. B3), after which the jury found Petitioner guilty as charged (Resp.

Ex. B1 at 66). On November 22, 2011, the trial court sentenced Petitioner to the

maximum sentence of 15 years in prison. (Id. at 122-31, 204).

Petitioner was represented by counsel on direct appeal, who initially filed

a brief pursuant to Anders v. California, 386 U.S. 739 (1967). (Resp. Ex. B9).

The First District Court of Appeal (First DCA) ordered additional briefing on

the following issue: “whether the trial court abused its discretion by failing sua

sponte to hold a competency hearing after counsel notified the court that she

scheduled a competency evaluation for appellant and requested a continuance

on that basis, which the court granted.” (Resp. Ex. B12). Counsel for both sides

filed briefs arguing the merits of that issue. (Resp. Ex. B13; Resp. Ex. B14A).

1 Unless otherwise noted, citations to Respondent’s exhibits refer to the Bates-

stamp page number on the bottom-center of the page. If a Bates-stamp page number

is unavailable, the citation refers to the page number in the upper-righthand corner.

Ultimately, the First DCA affirmed Petitioner’s conviction and sentence

without a written opinion. Turner v. State, 121 So. 3d 552 (Fla. 1st DCA 2013).

Thereafter, Petitioner filed several post-conviction motions and petitions

in state court, none of which succeeded.2 He filed two Petitions Alleging

Ineffective Assistance of Appellate Counsel (IAAC) in the First DCA, pursuant

to Florida Rule of Appellate Procedure 9.141. (Resp. Ex. C1 (First Petition

Alleging IAAC); Resp. Ex. D1 (Second Petition Alleging IAAC)). The First DCA

denied both petitions “on the merits.” Turner v. State, 145 So. 3d 890 (Fla. 1st

DCA 2014); Turner v. State, 164 So. 3d 699 (Fla. 1st DCA 2015).

On June 8, 2015, Petitioner filed a motion for post-conviction relief in the

trial court, pursuant to Florida Rule of Criminal Procedure 3.850, raising two

claims of trial court error and one claim of ineffective assistance of trial counsel.

(Resp. Ex. E2 at 139-73). He raised five more claims of trial court error through

two motions for leave to amend. (Resp. Ex. E1 at 1-22 (First Motion for Leave

to Amend); Resp. Ex. E2 at 174-94 (Second Motion for Leave to Amend)). The

trial court denied relief on all eight grounds. (Resp. Ex. E1 at 25-37).

Petitioner appealed the denial of the Rule 3.850 motion to the First DCA.

The First DCA affirmed without a written opinion. Turner v. State, 225 So. 3d

807 (Fla. 1st DCA 2017). The federal habeas petition followed.

2 For a more detailed procedural history, see Respondent’s brief (Doc. 25 at 2-6).

III. Governing Legal Principles

A. Standard of Review

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

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

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

2016). “‘The purpose of AEDPA is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice systems,

and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.

34, 38 (2011)).

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

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

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

state court need not issue an opinion explaining its rationale for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

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

unaccompanied by an explanation,

the federal court should “look through” the unexplained decision to

the last related state-court decision that does provide a relevant

rationale. It should then presume that the unexplained decision

adopted the same reasoning. But the State may rebut the

presumption by showing that the unexplained affirmance relied or

most likely did rely on different grounds than the lower state court’s

decision, such as alternative grounds for affirmance that were

briefed or argued to the state supreme court or obvious in the record

it reviewed.

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

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

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

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

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

States,” or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(1),

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

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

AEDPA “imposes a highly deferential standard for evaluating state

court rulings” and “demands that state-court decisions be given the

benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010)

(internal quotation marks omitted). “A state court’s determination

that a claim lacks merit precludes federal habeas relief so long as

fairminded jurists could disagree on the correctness of the state

court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)

(internal quotation marks omitted). “It bears repeating that even a

strong case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. [at 102] (citing Lockyer v.

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

repeatedly instructed lower federal courts that an unreasonable

application of law requires more than mere error or even clear

error. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18 (2003); Lockyer,

538 U.S. at 75 (“The gloss of clear error fails to give proper deference

to state courts by conflating error (even clear error) with

unreasonableness.”); Williams v. Taylor, 529 U.S. 362, 410 (2000)

(“[A]n unreasonable application of federal law is different from an

incorrect application of federal law.”).

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

citations modified).

B. Exhaustion and Procedural Default

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

action in federal court, a petitioner must exhaust all state court remedies that

are available for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A).

To exhaust state remedies, the petitioner must “fairly present[]” every issue

raised in his federal petition to the state’s highest court, either on direct appeal

or on collateral review. Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis

omitted). Thus, to properly exhaust a claim, “state prisoners must give the state

courts one full opportunity to resolve any constitutional issues by invoking one

complete round of the State’s established appellate review process.” O’Sullivan

v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope v. Rich, 358 F.3d 852, 854

(11th Cir. 2004) (noting “that Boerckel applies to the state collateral review

process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state prisoner

must exhaust available state remedies, 28 U.S.C. § 2254(b)(1),

thereby giving the State the “‘opportunity to pass upon and correct’

alleged violations of its prisoners’ federal rights.’” Duncan v. Henry,

513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d 865 (1995) (per

curiam) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509,

30 L.Ed.2d 438 (1971)). To provide the State with the necessary

“opportunity,” the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme court with

powers of discretionary review), thereby alerting that court to the

federal nature of the claim. Duncan, supra, at 365-366, 115 S. Ct.

887; O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

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

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

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

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

procedural default as follows:

Federal habeas courts reviewing the constitutionality of a state

prisoner’s conviction and sentence are guided by rules designed to

ensure that state-court judgments are accorded the finality and

respect necessary to preserve the integrity of legal proceedings

within our system of federalism. These rules include the doctrine of

procedural default, under which a federal court will not review the

merits of claims, including constitutional claims, that a state court

declined to hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[3] supra, at 747–748, 111 S. Ct.

2546; Sykes,[4] supra, at 84–85, 97 S. Ct. 2497. A state court’s

invocation of a procedural rule to deny a prisoner’s claims precludes

federal review of the claims if, among other requisites, the state

procedural rule is a nonfederal ground adequate to support the

judgment and the rule is firmly established and consistently

followed. See, e.g., Walker v. Martin, 562 U.S. —, —, 131 S. Ct.

1120, 1127–1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S.

—, —, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417 (2009). The doctrine

barring procedurally defaulted claims from being heard is not

without exceptions. A prisoner may obtain federal review of a

defaulted claim by showing cause for the default and prejudice from

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

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

a violation of federal law. See Coleman, 501 U.S., at 750, 111 S. Ct.

2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

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

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

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

1144, 1157 (11th Cir. 2010). For a petitioner to establish cause and prejudice,

the procedural default “must result from some objective factor

external to the defense that prevented [him] from raising the claim

and which cannot be fairly attributable to his own conduct.” McCoy

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

477 U.S. at 488, 106 S. Ct. 2639).[5] 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 if the

petitioner can establish that a fundamental miscarriage of justice – that is, the

incarceration of one who is actually innocent – otherwise would result. The

Eleventh Circuit has explained:

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

another avenue for him to receive consideration on the merits of his

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

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

constitutional violation has probably resulted in the conviction of

one who is actually innocent, a federal habeas court may grant the

writ even in the absence of a showing of cause for the procedural

default.” Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however, and requires

proof of actual innocence, not just legal innocence. Johnson v.

Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

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

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

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

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

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

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

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

allegations of actual innocence are summarily rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective

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

performance falls below an objective standard of reasonableness and thereby

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

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

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

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

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

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

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

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

There is no “iron-clad rule requiring a court to tackle one prong of the

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

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

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

prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id.

(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in

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

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

be followed.” 466 U.S. at 697.

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

determination under the Strickland standard was incorrect but whether that

determination was unreasonable – a substantially higher threshold.” Knowles

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

“any reasonable argument that counsel satisfied Strickland’s deferential

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

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

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

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

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

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

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

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

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

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

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

IV. Petitioner’s Claims and Analysis

A. Ground One

Petitioner claims the trial court erred by failing to hold a competency

hearing before trial or to have him evaluated by at least two experts, despite

having grounds to believe he was incompetent. (Doc. 1 at 7-9). Petitioner states

that he was evaluated by only one expert and that no competency hearing was

held. Petitioner concludes that the “trial court’s failure to conduct a full

competency hearing constitutes an abuse of discretion violating the established

mandatory procedures set forth in Fla. R. Crim. P. 3.210(b) and the Petitioner’s

right to due process under the 14th Amendment . . . .” (Id. at 8-9).6

6 To the extent Petitioner claims that the trial court failed to comply with Florida

Rule of Criminal Procedure 3.210(b), “federal habeas corpus relief does not lie for

errors of state law.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (internal quotation

marks and citations omitted).

Respondent argues that Petitioner procedurally defaulted this claim

because allegations of trial court error must be preserved in the trial court and

raised on direct appeal. (Doc. 25 at 9-17). Respondent argues that Petitioner

failed to preserve this issue for appellate review because he neither requested

a competency hearing nor objected to the trial court’s failure to hold one.

Alternatively, Respondent argues that the First DCA correctly denied the claim

on the merits. (Id. at 33-40).

Before trial and prior to Petitioner waiving his right to trial counsel,

Petitioner’s public defender moved to continue trial so Petitioner could undergo

a competency evaluation, which the trial court allowed. (Resp. Ex. B5 at 20).

Dr. Larry Neidigh evaluated Petitioner and determined he was competent to

stand trial. (Resp. Ex. E2 at 168-73). While it does not appear that the report

was submitted to the trial court, Dr. Neidigh concluded that Petitioner “met all

competency criteria and it is my opinion that he should be adjudicated

Competent to Proceed.” (Id. at 173). After the evaluation, neither Petitioner nor

his attorney requested a competency hearing. During his Faretta hearing (Resp.

Ex. B7 at 20-38), the court asked about the competency evaluation and

Petitioner advised he had never been diagnosed with or treated for any mental

illness (id. at 31). After the Faretta colloquy, the judge found Petitioner

“competent to waive counsel” and that he did so knowingly and intelligently.

(Id. at 34-35). Neither Petitioner nor his public defender objected to the court

not holding a competency hearing.

On direct appeal, after appellate counsel filed an Anders brief, the First

DCA ordered additional briefing on “whether the trial court abused its

discretion by failing sua sponte to hold a competency hearing.” (Resp. Ex. B12).

Both sides filed briefs arguing the merits of the issue. In its answer brief, the

State remarked that Petitioner had failed to preserve the claim for appellate

review. (Resp. Ex. B14A at 3, 6). However, because the First DCA ordered the

parties to brief whether the trial court erred by not holding a competency

hearing, the State devoted most of its brief to the merits. (Id. at 3-4, 5-10). The

First DCA affirmed the judgment without explanation. Turner, 121 So. 3d 552.

Respondent’s argument that Petitioner procedurally defaulted Ground

One rests on the assumption that the First DCA denied the appeal on

procedural grounds. However, the First DCA more likely reached the merits of

the issue. A state court that denies relief on a federal claim is presumed to have

“adjudicated the claim on the merits in the absence of any indication or state-

law procedural principles to the contrary.” Harrington, 562 U.S. at 99. The First

DCA itself ordered the parties to brief “whether the trial court abused its

discretion by failing sua sponte to hold a competency hearing.” (Resp. Ex. B12).

Both parties focused on the merits of the issue in their briefs. (Resp. Ex. B13;

Resp. Ex. B14A). Although the State asserted that the competency hearing

claim was unpreserved for appellate review (Resp. Ex. B14A at 3, 6), it

dedicated most of its brief to arguing the merits because, as it recognized, the

First DCA ordered merits briefing (id. at 5-10). The State’s assertion that the

claim was unpreserved for appellate review was presented as a passing remark

more than a substantive argument. Thus, it is more likely the First DCA

disposed of the competency hearing claim on the merits rather than based on a

procedural bar. As such, the Court concludes that Ground One was exhausted.

The relevant state court decision, for purposes of applying AEDPA’s standard

of review, is the First DCA’s decision on direct appeal.7

That said, the First DCA’s decision was not contrary to, or an

unreasonable application of, clearly established federal law, nor was it based on

an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(1), (d)(2). “The

Due Process Clause . . . guarantees a right to a competency hearing when the

7 Petitioner also raised a competency claim in his pro se “Motion for Habeas

Corpus Under Rule 3.820,” which he filed in the trial court on December 31, 2013.

(Resp. Ex. J9). Petitioner did not identify the claim as arising under federal law, but

instead argued that the trial court erred under Rule 3.210(b) by not appointing two

competency experts and not holding a competency hearing. (Id.). The state court

denied the Rule 3.820 motion and Petitioner did not appeal that decision. (See Resp.

Ex. J5). Petitioner then realleged substantially the same claim in ground one of his

Rule 3.850 motion. (Resp. Ex. E2 at 140-43). The trial court denied the claim as

procedurally barred because under Florida law, claims of trial court error cannot be

raised on post-conviction review. (Resp. Ex. E1 at 27-28). The First DCA summarily

affirmed the denial of Rule 3.850 relief. Turner, 225 So. 3d 807.

Although the state court applied a procedural bar to the competency hearing

claim on post-conviction review, the relevant state court decision remains the First

DCA’s decision on direct appeal.

court learns of information that raises a bona fide doubt regarding the

defendant’s competence.” United States v. Cometa, 966 F.3d 1285, 2020 WL

4432259, at *5 (11th Cir. Aug. 3, 2020) (internal quotation marks and citation

omitted); see also James v. Singletary, 957 F.2d 1562, 1570 (11th Cir. 1992)

(comparing substantive due process competency claims and claims regarding

the failure to hold a competency hearing). “To prevail on the procedural claim,

a petitioner must establish that the state trial judge ignored facts raising a bona

fide doubt regarding the petitioner's competency to stand trial.” Medina v.

Singletary, 59 F.3d 1095, 1106 (11th Cir. 1995) (internal quotation marks and

citation omitted). Three factors influence whether the trial court erred by not

holding a competency hearing: (1) whether the defendant evidenced irrational

behavior before the court; (2) whether his demeanor indicated a lack of

competence; and (3) whether the court was aware of any prior medical opinion

regarding the defendant’s competence. Fallada v. Dugger, 819 F.2d 1564, 1568

(11th Cir. 1987) (citing Drope v. Missouri, 420 U.S. 162, 172 (1975)).

The fact alone that defense counsel requested a continuance for Petitioner

to undergo a competency evaluation, weighed against the entire record, was not

enough to raise a bona fide doubt about Petitioner’s competence to stand trial.

See Cometa, 966 F.3d 1285, 2020 WL 4432259, at *6 (rejecting claim that the

district court was required to hold a competency hearing after defendant’s

lawyer voiced concerns about defendant’s competency at trial). There were no

indicia that Petitioner was incompetent to proceed. For one, Petitioner

displayed a rational understanding of the proceedings, such as during the

Faretta hearing, where he demonstrated that he understood his rights, the

charges against him, and the consequences of a conviction. (Resp. Ex. B7 at 20-

38). Second, there is no indication Petitioner behaved bizarrely during the

proceedings, such that the court had reason to doubt his competence. Third,

after conducting a competency evaluation, Dr. Neidigh found that Petitioner

was competent to stand trial. (Resp. Ex. E2 at 168-73). When the court inquired

about the competency evaluation at the Faretta hearing, Petitioner advised he

had not been treated for or diagnosed with any mental illness. (Resp. Ex. B7 at

31). Nor did Petitioner or his attorney request a competency hearing.

Under these facts, the First DCA reasonably could have determined that

the trial court did not err by failing to sua sponte conduct a competency hearing.

Thus, Ground One does not warrant relief under 28 U.S.C. § 2254(d).8

8 In his second notice of supplemental authority, Petitioner points to a Florida

Fourth DCA case, Johnson v. State, 254 So. 3d 1035 (Fla. 4th DCA 2018), where the

appellate court reversed the trial court for not holding a competency hearing after it

ordered an evaluation, and remanded for the trial court to make a retroactive

assessment of whether the defendant was competent. (Doc. 41). That case, which relied

on Florida law, does not establish that the First DCA’s decision here was contrary to,

or an unreasonable application of, clearly established federal law as determined by

the United States Supreme Court. 28 U.S.C. § 2254(d)(1).

B. Ground Two

Petitioner claims that appellate counsel gave ineffective assistance by

failing to raise a fundamental error claim on direct appeal. (Doc. 1 at 11-13).

According to Petitioner, the trial court violated his due process rights “by failing

to conduct a full Faretta hearing before allowing the Petitioner to represent

himself at trial.” (Id. at 11). This error, Petitioner contends, compounded the

issue of his alleged incompetency. Petitioner argues that appellate counsel

performed deficiently by failing to brief this issue on direct appeal. He further

contends that the First DCA’s rejection of this claim was an unreasonable

application of clearly established federal law.

As noted earlier, appellate counsel initially filed an Anders brief on direct

appeal (Resp. Ex. 11), but the First DCA ordered counsel to brief one issue:

whether the trial court erred by failing to hold a competency hearing sua sponte

(Resp. Ex. B12). Appellate counsel filed a merits brief, arguing that the trial

court erred by not conducting a competency hearing. (Resp. Ex. B13). However,

appellate counsel did not challenge the adequacy of the Faretta colloquy. The

First DCA affirmed Petitioner’s conviction and sentence without a written

decision. Turner, 121 So. 3d 552.

In his second pro se Petition Alleging IAAC, filed in the First DCA on

January 16, 2015, Petitioner claimed that appellate counsel was ineffective for

not challenging the adequacy of the Faretta hearing. (Resp. Ex. D1 at 12-17).

The First DCA rejected the claim, stating only that “[t]he petition alleging

ineffective assistance of appellate counsel is denied on the merits.” Turner, 164

So. 3d at 700. As such, Respondent concedes that Petitioner exhausted Ground

Two. (Doc. 25 at 17). However, Respondent argues that the claim does not merit

relief under 28 U.S.C. § 2254(d). (Id. at 40-43).

The Court agrees. Strickland’s two-part test, deficient performance and

prejudice, applies when reviewing the effectiveness of appellate counsel. Smith

v. Robbins, 528 U.S. 259, 285 (2000). In Faretta v. California, the Supreme

Court held that a defendant in a criminal proceeding has the right to waive

counsel and to represent himself, provided he does so “competently and

intelligently.” 422 U.S. at 835. A defendant must be “made aware of the dangers

and disadvantages of self-representation, so that the record will establish that

he knows what he is doing and his choice is made with eyes open.” Id. (internal

quotation marks and citations omitted). The “competence that is required of a

defendant seeking to waive his right to counsel is the competence to waive the

right, not the competence to represent himself.” Godinez v. Moran, 509 U.S.

389, 399 (1993) (emphasis in original). “In Godinez v. Moran, the Supreme

Court held that the standard for determining competency to waive the right to

an attorney is the same as the standard for determining competency to stand

trial.” Muhammad v. Sec'y, Dep’t of Corr., 554 F.3d 949, 956 (11th Cir. 2009)

(citing Godinez, 509 U.S. at 396-97). That is, the defendant must have

“‘sufficient present ability to consult with his lawyer with a reasonable degree

of rational understanding’ and ha[ve] ‘a rational as well as factual

understanding of the proceedings against him.’” Godinez, 509 U.S. at 396

(quoting Dusky v. United States, 362 U.S. 402, 402 (1960)).

A finding that a defendant is competent to stand trial, however, is

not all that is necessary before he may be permitted to … waive his

right to counsel. In addition to determining that a defendant who

seeks to … waive counsel is competent, a trial court must satisfy

itself that the waiver of his constitutional rights is knowing and

voluntary.

Id. at 400 (citations omitted).

Appellate counsel reasonably could have decided not to challenge the

adequacy of the Faretta hearing. Petitioner alleges that the trial court only

“conducted a limited hearing and found that because the Petitioner was 46

years of age; spoke English; had attained the eighth grade; and was not under

the influence of any drugs or alcohol, he was competent to waive his right to

counsel and represent himself.” (Doc. 1 at 12). But this mischaracterizes the

scope of the trial court’s Faretta inquiry.

The record shows that, over the course of 16 transcript pages, the trial

judge queried Petitioner about his decision to represent himself. (Resp. Ex. B7

at 20-35). The court reminded Petitioner he had the right to a court-appointed

attorney, free of charge. (Id. at 20, 32). The court advised Petitioner about the

advantages of proceeding with a lawyer (id. at 21-23), and the disadvantages of

proceeding without a lawyer (id. at 23-27). While informing Petitioner about

these considerations, the court touched on the intricacies of trying a case, such

as complying with the rules of evidence and courtroom procedure. Petitioner

stated that he understood all these things. (Id. at 27). The court ensured that

Petitioner understood the charges against him and the consequences of a

conviction. (Id. at 27-30). The court ascertained that Petitioner was 46 years

old, able to read and write in English, that he had completed the eighth grade,

and that he was not under the influence. (Id. at 31). The court confirmed that

Petitioner had undergone a competency evaluation (in which Dr. Neidigh found

him competent), and Petitioner advised he had not been diagnosed with or

treated for any mental illness. (Id.). The court also ensured that Petitioner did

not have any speech, hearing, or visual impairments. (Id. at 31-32).

Following this detailed discussion, Petitioner assured the court that he

did not want to be represented by counsel (id. at 33), and that he made this

choice voluntarily (id. at 32). The court offered to appoint standby counsel to

assist Petitioner – which he accepted – but reminded him that he remained

solely responsible for organizing and presenting his case. (Id. at 33-34). The

court concluded that Petitioner was “competent to waive counsel and he has

done so freely, knowingly, intelligently and voluntarily understanding the

consequences of that.” (Id. at 34-35). Petitioner did not object to that finding.

The record shows that Petitioner was competent to waive the right to

counsel, Faretta, 422 U.S. at 835, and that he made the waiver knowingly and

voluntarily, Godinez, 509 U.S. at 400. As such, appellate counsel reasonably

could have decided not to raise this (unpreserved) issue on direct appeal, which

would have required her to meet the heightened standard of fundamental error.

See Harrell v. State, 894 So. 2d 935, 941 (Fla. 2005) (issues not preserved by

contemporaneous objection may only be reviewed for fundamental error). The

First DCA’s rejection of the ineffective assistance claim was not contrary to

clearly established federal law, did not involve an unreasonable application of

it, nor was the decision based on an unreasonable determination of the facts. 28

U.S.C. § 2254(d)(1), (d)(2). Relief on Ground Two is due to be denied.

C. Ground Three

Next, Petitioner claims the trial court erred under Crawford v.

Washington, 541 U.S. 36 (2004), and the Sixth Amendment by allowing

testimony that violated his right to confront the accuser. (Doc. 1 at 14-15). The

victim, D.S., did not testify at trial because neither Petitioner nor the State

could find her, despite an investigator’s efforts to locate D.S. at her high school

and last known residence. (See Resp. Ex. B2 at 109-11; Resp. Ex. B3 at 121-27).

However, Rachel Thomas, a nurse practitioner with the Child Protection Team,

testified about statements D.S. made to her during a rape evaluation. (Resp.

Ex. B3 at 195-207). Ms. Thomas testified that D.S. told her she had gone to a

hotel with a man in his 40’s, where they had sex three times. (Id. at 201-03).

Petitioner (who represented himself) did not object to Ms. Thomas’s testimony.

Petitioner declined to cross-examine Ms. Thomas as well. (Id. at 207).

Petitioner now claims that because he was denied the opportunity to

cross-examine D.S., he was denied his confrontation rights under Crawford.

Petitioner states that had he been able to confront D.S., “the jury and the court

would have learned that the victim was a runaway who was prostituting to

support herself; told the Petitioner that she was 18 years old; that she called

the Petitioner for a ride; and that the sex was consensual.” (Doc. 1 at 15).

Respondent argues that Petitioner procedurally defaulted this claim

because he failed to raise an objection at trial and failed to raise the issue on

direct appeal. (Doc. 25 at 17-21). Alternatively, Respondent argues that the

claim was reasonably denied on the merits. (Id. at 43-51).

Petitioner presented the Crawford claim in ground six of his Rule 3.850

motion, which he added by motion for leave to amend. (Resp. Ex. E1 at 13-15).

The trial court denied the claim as procedurally barred and meritless. (Id. at

33-35). The court explained:

In his sixth ground for relief, Defendant argues his right to confront

his accuser under Crawford v. Washington, 541 U.S. 36 (2004), was

violated when Ms. Rachel Thomas of the Child Protection Team

testified about what the victim told her during the sexual assault

examination. (Def’s Am. Mot. 13.) Defendant argues he requested

the victim be present for trial through a subpoena, but the victim

“could not be found and was unavailable for trial.” (Def.’s Am. Mot.

14.) Defendant argues if the victim had testified, she would have

stated their sexual encounter was consensual, and this would have

changed the outcome of his trial.

In Crawford, the United States Supreme Court held “the

confrontation clause of the Sixth Amendment excludes from

evidence any out of court, testimonial statements unless the

witness is found to be unavailable and the defense is provided a

prior opportunity for cross-examination.” Mencos v. State, 909 So.

2d 349, 351 (Fla. 4th DCA 2005) (citing Crawford, 541 U.S. at 68).

See § 90.804(1), Fla. Stat. (2011) (explaining “unavailability as a

witness”); State v. Contreras, 979 So. 2d 896, 904 (Fla. 2008)

(holding statements child victim made to member of child

protection team testimonial in nature).

. . . .

Foremost, this Court notes that even if the victim testified that her

encounter with Defendant was consensual, such testimony would

have been inconsequential to his conviction and would not have

changed the outcome of his trial. Specifically, consent is a

“prohibited defense” for the crime in which Defendant was

convicted, and the victim’s “misrepresentation of her age” cannot be

raised as a valid defense to Lewd or Lascivious Battery. See §

800.04(2), (3), Fla. Stat. (2011) (stating, “[n]either the victim’s lack

of chastity nor the victim’s consent is a defense to the crimes

proscribed by this section.” … “[t]he perpetrator’s ignorance of the

victim’s age, the victim’s misrepresentation of his or her age, or the

perpetrator’s bona fide belief of the victim’s age cannot be raised as

a defense in a prosecution under this section.”).

Here, the record does not show that the trial court made the

findings required by section 90.803(23) [for admitting hearsay

statements by a child victim]. However, this Court finds

Defendant’s argument fails because Defendant could and should

have raised this claim on direct appeal. See Hernandez v. State, 946

So. 2d 1270, 1274, 1271, 1277-86 (Fla. 2d DCA 2007). To the extent

Defendant seeks to argue fundamental error occurred in this

respect, this Court finds “[w]hen a postconviction claim is raised

with an allegation that it is a matter of fundamental error, the

defendant essentially invites the trial court … to dismiss the claim

as one that could and should have been resolved on direct appeal.”

Hughes v. State, 22 So. 3d 132, 135 (Fla. 2d DCA 2009).

Assuming arguendo this claim was not procedurally barred, it still

fails. Defendant argues that trial counsel objected to Ms. Thomas’s

testimony. (Def.’s Am. Mot. 15.) However, as noted supra,

Defendant represented himself pro se during trial. As a pro se party

during trial, it was Defendant’s responsibility to argue his

confrontation rights were violated by Ms. Thomas’s testimony, not

counsel’s responsibility. Defendant did not bring this issue to the

trial court’s attention prior to Ms. Thomas’s testimony, nor did he

object to Ms. Thomas’s testimony. (Ex. E.) Defendant was given the

opportunity to cross-examine Ms. Thomas, but he refrained from

doing so. (Ex. E at 207.) Additionally, the record shows the State

and the State’s investigator made numerous attempts to locate the

victim, but she could not be found. (Ex. D at 109-11; Ex. E at 121-

27.) In view of the foregoing, therefore, this Court finds Defendant

has failed to demonstrate he is entitled to the relief he seeks. Thus,

Ground Six is denied.

(Resp. Ex. E1 at 33-35).

Petitioner appealed the denial of the Rule 3.850 motion to the First DCA.

The First DCA affirmed the trial court’s ruling without a written opinion.

Turner, 225 So. 3d 807. Because the First DCA did not explain its decision, this

Court “looks through” to the trial court’s written decision to understand the

First DCA’s reasoning. Wilson, 138 S. Ct. at 1192.

To begin with, the trial court denied the claim based on an adequate and

independent state procedural rule. The court rejected the claim “because

Defendant could and should have raised this claim on direct appeal.” (Resp. Ex.

E1 at 34) (citation omitted); accord Fla. R. Crim. P. 3.850(c) (“This rule does not

authorize relief based on grounds that could have or should have been raised at

trial and, if properly preserved, on direct appeal of the judgment and

sentence.”). The Eleventh Circuit recognizes that the procedural requirements

of Rule 3.850 constitute adequate and independent state procedural grounds for

rejecting a claim. Whiddon v. Dugger, 894 F.2d 1266, 1267-68 (11th Cir. 1990).

Petitioner has not overcome the default through a showing of cause-and-

prejudice or actual innocence. As such, this claim is procedurally defaulted.

Alternatively, the state court reasonably denied this claim on the merits.

In Crawford, the Supreme Court held that the Sixth Amendment’s

Confrontation Clause bars the admission of a witness’s testimonial out-of-court

statement, unless the witness is unavailable and the defendant had a prior

opportunity to cross-examine him. 541 U.S. at 53-54. However, Crawford claims

raised in a collateral proceeding are subject to harmless error review under

Brecht v. Abrahamson, 507 U.S. 619 (1993). See Grossman v. McDonough, 466

F.3d 1325, 1339-40 (11th Cir. 2006). Under Brecht, an error is harmless unless

it “had substantial and injurious effect or influence in determining the jury’s

verdict.” 507 U.S. at 637 (internal quotation marks and citation omitted).

At trial, Ms. Thomas testified that during a post-assault evaluation, D.S.

told her she had gone to a hotel with a man in his 40’s, where they had

intercourse three times. (Resp. Ex. B3 at 201-03). Petitioner never denied the

substance of D.S.’s statements: he neither denied having sex with D.S. nor that

D.S. was under the age of 16. (Id. at 252-57 (Petitioner’s closing argument)).

Petitioner admitted that he was a “John” and that he had been soliciting

prostitution. (Id.); (accord id. at 183-90 (testimony by Jacksonville Sheriff’s

Office Detective Donna Beasley that Petitioner admitted having sex with D.S.);

id. at 218-30 (testimony by crime lab analyst Nicole Lee that DNA from D.S.’s

vaginal swab matched Petitioner’s DNA profile)). Petitioner’s defense was that

D.S. was a prostitute, that the sex was consensual, and that he did not know

D.S. was underage or a runaway. (Id. at 252-57). In his current Petition, he

claims that had he been able to confront D.S., “the jury and the court would

have learned that the victim was a runaway who was prostituting to support

herself; told the Petitioner that she was 18 years old; that she called the

Petitioner for a ride; and that the sex was consensual.” (Doc. 1 at 15).

As the trial court explained, none of these arguments is a defense to the

charge of lewd and lascivious battery. Rather, the statute explicitly forecloses

such defenses. Fla. Stat. § 800.04(2), (3) (2011). Thus, even if D.S. had testified

that her encounter with Petitioner was consensual, or that she misrepresented

her age, such testimony would not have changed the outcome as a matter of

law. Thus, any Crawford violation regarding D.S. and her statements, assuming

one occurred, was harmless under any standard.

In his Reply, Petitioner argues that such reasoning misapprehends his

claim. (Doc. 30 at 14-15). He argues that he would have presented D.S.’s

testimony not as a defense to the charge, but to lay the groundwork for a “jury

pardon.” (Id.). A “jury pardon” is the jury’s “inherent power” to acquit the

defendant of a greater offense and convict him of a lesser one “even though the

evidence supports both crimes.” Sanders v. State, 946 So. 2d 953, 957 (Fla. 2006)

(citations omitted). However, “the jury pardon remains a device without legal

foundation.” Id. at 958. “By definition, jury pardons violate the oath jurors must

take before trial, as well as the instructions the trial court gives them.” Id. As

the Florida Supreme Court explained, “the jury must anchor its verdict in, and

only in, the applicable law and the evidence presented.” Id. To assume that,

given the choice, a jury would acquit the defendant of a charge supported by

sufficient evidence and instead convict of a lesser offense, “is to assume that the

jury would disregard its oath and the trial court’s instructions.” Id. Thus, the

Florida Supreme Court has held that a lawyer’s failure to seek a jury pardon

instruction, even if deficient, cannot satisfy Strickland’s prejudice prong

because “any finding of prejudice … necessarily would be based on a faulty

premise: that a reasonable probability exists that, if given the choice, a jury

would violate its oath, disregard the law, and ignore the trial court’s

instructions.” Id. at 959.

Likewise, the notion that D.S.’s testimony might have laid the foundation

for a jury pardon cannot establish prejudice from the Crawford error. A finding

that the error was non-harmless would necessarily rest on the same faulty

premise that “a jury would violate its oath, disregard the law, and ignore the

trial court's instructions.” Id. However, a defendant is not entitled to “the luck

of a lawless decisionmaker.” Strickland, 466 U.S. at 695. That is equally true

on collateral review regardless of whether the claim is ineffective assistance or

a due process error. See Bell v. Sec’y, Dep’t of Corr., No. 6:14-cv-90-Orl-31DAB,

2016 WL 11689837, at *2 (M.D. Fla. May 20, 2016) (trial court’s failure to give

instruction on jury pardon was harmless under the Brecht standard).

Accordingly, relief on Ground Three is due to be denied. Ground Three is

defaulted and, alternatively, the First DCA reasonably could have denied relief

on the merits.

D. Ground Four

Petitioner claims the trial court abused its discretion when it “abruptly

cut off both the Petitioner and standby counsel, during trial, ordering them both

[to] shut up, sit down, and not to object.” (Doc. 1 at 17). He claims that the

court’s actions “resulted in key issues not being preserved for appellate review

and denying the Petitioner a fair trial.” (Id. at 17-18). According to Petitioner,

he asked standby counsel to “take over” and object to the State’s reference to

D.S.’s hearsay statements during rebuttal argument, but the judge told counsel

she was not to make any objections for Petitioner. (Id. at 18) (citing Pet. Ex. G,

p. 242, lines 4-9; see also Resp. Ex. B3 at 259, lines 4-9). Afterward, Petitioner

allegedly tried to object to D.S. not being available as a witness, but he claims

“he was rudely told in front of the jury to sit down, and shut up or he would be

removed from the courtroom and the trial will continue without you.” (Id.).

Petitioner claims that after the judge told him to be silent, “neither the

Petitioner [nor] his standby counsel were allowed to speak [for] the remainder

of the trial.” (Id. at 19) (citing Pet. Ex. G, pp. 242-59; see also Resp. Ex. B3 at

259-76). Because he represented himself, Petitioner claims that the judge’s

order not to speak for the rest of the proceeding deprived him of a fair trial.

Petitioner alleges that the “trial court’s scolding of the Petitioner does not

appear on the face of the record due to the judge striking it from the record.”

(Id. at 18). However, he claims that evidence of the scolding exists in three post-

trial motions alleging judicial bias, which Petitioner claims the court did not

resolve. (Id. at 18) (citing Pet. Ex. I) (Petitioner filed these motions pro se,

contrary to his claim that counsel filed them).

The part of trial where Petitioner alleges he was disallowed from

speaking anymore was near the end, during the State’s rebuttal argument. By

that point, Petitioner had rested his case and given his closing argument.

During the State’s rebuttal, the following exchange occurred:

[PROSECUTOR]: Detective Beasley sat on that witness stand and

told you that he admitted to her they had sex. Rachel Thomas sat

on the witness stand and said they had sex – or not – that, excuse

me, that [D.S.] had told her during the medical examination that

they had had sexual intercourse in that motel.

MS. HART [STANDBY COUNSEL]: Objection, Your Honor. That

was not in evidence. There’s no testimony as to it was Zachery

Turner.[9]

THE COURT: Ms. Hart, you’re not making any objections.

MS. HART: I’m sorry, Your Honor.

[PROSECUTOR]: I’ll rephrase that.

She said – you can rely on your own memory as to what was said.

But Rachel Thomas said that [D.S.] told her they had sex in the

motel. And this was all confirmed by what Nickie Lee testified to,

that his DNA profile, his semen was on [D.S.’s] vaginal swabs that

were taken that afternoon.

(Resp. Ex. B3 at 258-59). The record contains no indication that the judge told

Petitioner, in front of the jury, to “shut up, sit down, and not to object.”

Respondent divides Ground Four into four subclaims: (1) whether the

trial court abused its discretion by cutting off Petitioner and standby counsel

and allegedly telling them to “shut up, sit down, and not to object”; (2) whether

the trial court erred by not allowing standby counsel to object to hearsay, i.e.,

the State’s rebuttal argument concerning D.S.’s statements to Ms. Thomas; (3)

whether the trial court violated Petitioner’s due process rights by allegedly

silencing him when he objected to being tried without D.S.’s testimony; and (4)

9 According to Ms. Thomas, D.S. did not identify Petitioner as the man with whom

she had sex. (Resp. Ex. B3 at 201-03). D.S. said only that she had gone to a hotel with

a man in his 40’s, where they had sex three times. (Id.). However, Detective Beasley

testified that Petitioner admitted to having sex with D.S. (id. at 183-90), and lab

analyst Nicole Lee testified that Petitioner’s DNA matched male DNA taken from

D.S.’s vaginal swabs (id. at 218-30).

whether the trial court failed to address Petitioner’s motions alleging bias by

the trial judge. (Doc. 25 at 21-22). Respondent argues that these subclaims are

procedurally defaulted (id. at 21-25) and meritless (id. at 51-56).

Petitioner did not present any of these claims on direct appeal. (Resp. Ex.

B9; Resp. Ex. B11; Resp. Ex. B13; Resp. Ex. B15).10 He did claim, in his First

Petition Alleging IAAC, that appellate counsel was deficient for failing to

challenge (1) the State’s reference to D.S.’s statements during rebuttal

argument, and/or (2) the trial court’s ruling that standby counsel could not

object to the argument on Petitioner’s behalf. (Resp. Ex. C1 at 45). But as

Respondent points out, Petitioner couches Ground Four in terms of trial court

error, whereas claims of ineffective assistance are separate and distinct. (Doc.

25 at 22-23); Pietri v. Fla. Dep’t of Corr., 641 F.3d 1276, 1289 (11th Cir. 2011);

LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1260 n.24 (11th Cir. 2005).

Thus, Ground Four was not exhausted by the First Petition Alleging IAAC.

In ground four of his Rule 3.850 motion, Petitioner raised the subject of

subclaims one through three as an allegation of trial court error. (Resp. Ex. E1

at 3-6). Although he alleged that the judge abruptly cut him off, he did not

specifically allege that the judge told him to “shut up, sit down, and not to

10 In a pro se reply brief on direct appeal, Petitioner did attach as exhibits two pro

se motions alleging judicial bias or misconduct. (Resp. Ex. B15). However, these

attachments were not accompanied by any argument. (See id.).

object,” or that the judge struck this exchange from the record. (See id.). He also

did not raise subclaim four: that the trial court failed to address his motions

alleging judicial bias. The court rejected ground four of the Rule 3.850 motion

as barred, explaining that claims of trial court error are not cognizable in a

motion for postconviction relief. (Resp. Ex. E1 at 27-28 & n.4).

Petitioner appealed the denial of the Rule 3.850 motion to the First DCA,

which affirmed the trial court’s ruling without explanation. Turner, 225 So. 3d

807. Because the First DCA did not explain its decision, this Court “looks

through” to the trial court’s opinion to understand the First DCA’s reasoning.

Wilson, 138 S. Ct. at 1192.

Ground Four is procedurally defaulted because Petitioner failed to raise

any of the sub-claims on direct appeal. And, he also failed to present the fourth

sub-claim (claiming the trial court failed to address the motions alleging judicial

bias) in the Rule 3.850 motion as well. As the trial court explained in denying

the Rule 3.850 motion, claims of trial court error must be raised on direct appeal

and are not cognizable on collateral review. (Resp. Ex. E1 at 27-28); accord Fla.

R. Crim. P. 3.850(c). By failing to present these issues on direct appeal,

Petitioner denied “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, 526 U.S. at 845. Rule 3.850’s procedural

requirements are adequate and independent state procedural grounds on which

to deny a claim. Whiddon, 894 F.2d at 1267-68. Because the trial court applied

an adequate and independent state procedural bar, federal habeas relief is not

available. Petitioner has not shown he can overcome the default through a

showing of cause-and-prejudice or actual innocence.11

Alternatively, if the First DCA reached the merits in affirming the denial

of the Rule 3.850 motion, its opinion was not contrary to, or based on an

unreasonable application of, clearly established federal law, nor was it based on

an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(1), (2). To the

extent Petitioner claims the trial court erred by not allowing standby counsel to

raise a hearsay objection regarding D.S.’s statements, “Faretta does not require

a trial judge to permit ‘hybrid’ representation …. A defendant does not have a

constitutional right to choreograph special appearances by counsel.” McKaskle

v. Wiggins, 465 U.S. 168, 183 (1984); see also United States v. LaChance, 817

F.2d 1491, 1498 (11th Cir. 1987). Insofar as Petitioner claims the trial court

violated his due process rights by preventing him from objecting to the State’s

failure to produce D.S. as a witness, such error (if one occurred) was harmless.

As explained under Ground Three, Petitioner never denied having sex with D.S.

11 Contrary to Petitioner’s claim that the trial court never addressed his post-trial

motions alleging judicial bias (Doc. 1 at 18-19), the trial court denied the motions on

January 9, 2012. (Resp. Ex. J8). In none of these motions did Petitioner identify his

claims as arising under the federal Constitution. (Pet. Ex. I). Because Petitioner did

not alert the court to the federal nature of his claims, subclaim four is unexhausted

for this reason as well. Baldwin, 541 U.S. at 29.

or that D.S. was underage. Instead, he wanted to confront D.S. to support

defenses that were foreclosed by law. See Fla. Stat. § 800.04(2), (3) (2011).

Moreover, the transcript contains no indication that the trial judge told

Petitioner to “shut up, sit down, and not to object” for the rest of trial, let alone

that she did so in front of the jury. Petitioner submits three affidavits from

family members, written more than two years after trial, in which they state

that the judge told Petitioner to “shut up” and sit down, and that the judge

thought Petitioner was out looking for girls. (Pet. Ex. I at CM/ECF 5-7). These

affidavits give no context for the judge’s remarks, do not state that the judge

said these things in the jury’s presence, nor do they state that the judge ordered

Petitioner to be silent for the rest of trial. Petitioner offers no support for his

conclusory claim that the judge had her remarks stricken from the record.

Accordingly, the claims in Ground Four are procedurally defaulted as well

as meritless. Relief is due to be denied.

E. Ground Five

Finally, Petitioner argues that the trial court imposed a vindictive

sentence to punish him for exercising his right to trial. (Doc. 1 at 21-22). He

asserts that before trial, the State extended plea offers of 18 months, three

years, and seven years in prison in exchange for a guilty plea. (Id. at 21).

According to Petitioner, the trial judge “stopped short of affirmatively

recommending that the Petitioner accept a plea offer,” but that the judge made

statements that “constituted judicial participation in the plea negotiation

process.” (Id.). Petitioner claims that the judge’s “comments differ[ed] from

comments routinely made in explaining the state’s offers.” (Id. at 22). In the

end, the court imposed the statutory maximum sentence of 15 years in prison.

(Id.); see also Fla. Stat. §§ 800.04(4)(b), 775.082(3)(d). Petitioner contends that

no aggravating factor could explain such a sentence. (Doc. 1 at 22). He asserts

that the court imposed the maximum sentence to penalize him for going to trial,

in violation of his rights under the Fifth and Fourteenth Amendments. (Id.).

Respondent argues that Petitioner procedurally defaulted this claim

because he failed to raise an objection at sentencing and failed to raise the issue

on direct appeal. (Doc. 28 at 2-8). Alternatively, Respondent argues that the

state court reasonably denied this claim on the merits. (Id. at 8-12).

As Petitioner acknowledges, he did not raise this issue on direct appeal.

(Doc. 1 at 22; Resp. Ex. B13). However, he did allege in ground five of his Rule

3.850 motion that the trial judge imposed a vindictive sentence. (Resp. Ex. E1

at 7-12). The court denied the claim as procedurally barred because claims of

trial court error are not cognizable under Rule 3.850. (Id. at 27-28). In addition,

the trial court denied the claim on the merits:

As to Ground Five … this Court briefly addresses this argument to

the extent Defendant seeks to argue the trial judge imposed a

vindictive sentence upon him. This Court notes “the sentencing

term ‘vindictive’ has become a ‘term of art,’ describing the legal

effect of a given objective course of action, generally not implying

any personal or subjective animosity on the part of the trial judge.”

Naim v. State, 837 So. 2d 519, 520 (Fla. 3d DCA 2003). See Frazier

v. State, 467 So. 2d 447 (Fla. 3d DCA 1985) (citations omitted).

Indeed, a sentence is “vindictive” only when a defendant is

punished by the trial judge for exercising his due process rights.

Wilson v. State, 845 So. 2d 142, 150 (Fla. 2003). A presumption of

vindictiveness in sentencing is rare, and surfaces only in situations

where there exists a “reasonable likelihood” that an increase in

sentence resulted from actual vindictiveness. Alabama v. Smith,

490 U.S. 794, 799 (1989). In fact, “[s]ince there is no presumption of

vindictiveness, the burden of proving actual vindictiveness is on

[the defendant].” Allende v. State, 942 So. 2d 950, 951 (Fla. 5th DCA

2006) (citing Richardson v. State, 821 So. 2d 428, 430 (Fla. 5th DCA

2002)).

In the instant case as to Ground Five, Defendant has failed to fulfill

his burden of showing the trial judge punished him for exercising

his due process rights. The only complaints Defendant raises are

based on the trial court judge’s reasons and justifications for

imposing the sentence she did. After listening to the evidence and

testimony presented by Defendant’s attorney on behalf of

Defendant during the sentencing hearing, the trial judge stated she

also considered Defendant’s Pre-Sentence Investigation Report and

letters written on his behalf. (Ex. G at 31.) The trial court outlined

the reasons for her sentence, including that Defendant took

advantage of the victim’s vulnerability and circumstances. (Ex. G

at 31.) This Court finds the trial court’s reasons for forming

Defendant’s sentence were lawful justifications in support of the

sentence. Such do not demonstrate a vindictive sentence or that the

judge was biased or prejudiced.

(Resp. Ex. E1 at 28-29).

Petitioner appealed the denial of the Rule 3.850 motion, but the First

DCA affirmed without a written opinion. Turner, 225 So. 3d 807. Because the

First DCA did not explain its decision, this Court looks through to the trial

court’s opinion to understand its reasoning. Wilson, 138 S. Ct. at 1192.

This claim is procedurally defaulted because the trial court denied relief

based on an adequate and independent state procedural rule. In rejecting the

vindictive sentencing claim, the court explained that allegations of trial court

error must be raised on appeal and are not cognizable in a Rule 3.850 motion.

(Resp. Ex. E1 at 27-28); accord Fla. R. Crim. P. 3.850(c). Because Rule 3.850’s

procedural requirements are adequate and independent state procedural

grounds, Whiddon, 894 F.2d at 1267-68, this claim is barred from federal habeas

review. Petitioner has not shown he can overcome the default under the cause

and prejudice or actual innocence standards.

Alternatively, if the First DCA reached the merits in affirming the denial

of Rule 3.850 relief, its decision was not contrary to, or based on an

unreasonable application of, clearly established federal law, nor was its decision

based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(1), (2).

“Due process forbids vindictive sentencing by increasing a defendant’s sentence

because the defendant exercised a constitutional right.” Butler v. Sec’y, Dep’t of

Corr., No. 8:12-cv-56-T-27TGW, 2015 WL 859487, at *11 (M.D. Fla. Feb. 27,

2015) (citing North Carolina v. Pearce, 395 U.S. 711, 725 (1969)). However, the

“imposition of a longer sentence than a defendant would have received had he

pleaded guilty does not automatically amount to punishment for the

defendant’s exercising his right to stand trial.” Creed v. Dep’t of Corr., 330 F.

App’x 771, 773 (11th Cir. 2009) (citing Frank v. Blackburn, 646 F.2d 873, 882-

85 (5th Cir. 1980), and Bordenkircher v. Hayes, 434 U.S. 357 (1978)). “A trial

judge may reasonably increase a defendant’s sentence after trial because the

trial gives the judge the benefit of hearing testimony, becoming aware of the

facts of the case, and understanding ‘the flavor of the event and the impact upon

any victims.’” Id. (quoting Frank, 646 F.2d at 885).

Such is the case here. In explaining the sentence, the judge recounted:

[I]t’s clear you didn’t care that [D.S.] was a poor, young, troubled

girl, who another much younger man, maybe half your age, could

see was a troubled young woman out on the street. You picked her

up, she was – I think you said at one point, something about trying

to get her food or whatever, so you knew she was hungry, you knew

she was vulnerable, and you took advantage of that, of a 14 year old

girl, with children older than that yourself, Mr. Turner.

It’s not just a poor decision. This is an evil crime, to take advantage

of a troubled teen like that.

(Resp. Ex. B1 at 204). There is no evidence that the trial judge imposed the

sentence in retaliation for Petitioner exercising his right to trial.12

Ground Five is procedurally defaulted, and alternatively, does not

warrant relief under 28 U.S.C. § 2254(d). As such, relief is due to be denied.

12 To the extent Petitioner alleges that the trial judge interjected herself into plea

negotiations, the record refutes that claim. Before jury selection, the court reviewed

the plea offers, advised Petitioner about his plea options, and notified Petitioner about

the potential penalties. (Doc. 1-5 at CM/ECF 25-28). The trial judge specifically

advised Petitioner “I don’t get involved in negotiations.” (Id. at CM/ECF 27).

V. Conclusion

The Court has reviewed each of Petitioner’s claims and concludes that

none merits relief under 28 U.S.C. § 2254.

Accordingly, it is hereby ORDERED:

1. Petitioner Zachery Keith Turner’s Petition for Writ of Habeas Corpus

Under 28 U.S.C. § 2254 (Doc. 1) is DENIED and this case is

DISMISSED WITH PREJUDICE.

2. The Clerk shall enter judgment accordingly, terminate any pending

motions, and close the file.

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

appealability (COA). Because the Court has determined that a COA

is not warranted, the Clerk shall terminate from the pending motions

report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida this 27th day of

August, 2020.

TIMOTHY J. CORRIGAN

United States District Judge

le 19

Copies:

Counsel of record

Zachery Keith Turner

13 The Court should issue a COA only if the Petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this

showing, Petitioner “must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong,” Tennard _v.

Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 4738, 484 (2000)),

or that “the issues presented were ‘adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot □□□

Estelle, 463 U.S. 880, 893 n.4 (1983)). After consideration of the record as a whole, the

Court will deny a COA.

40