Wright v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

TAVARES J. WRIGHT,

Petitioner,

v. Case. No: 8:17-cv-974-T-02TGW

SECRETARY, DEPARTMENT OF

CORRECTIONS,

Respondent.

_____________________________/

ORDER DENYING AMENDED PETITION

Tavares Wright received two death sentences for two murders during a

crime spree in Polk County in 2000. He files this petition for relief from those

sentences under 28 U.S.C. § 2254. The Court has before it Wright’s amended

petition and memorandum in support, Docs. 36, 37, and 38, the State’s response,

Doc. 42, and Wright’s reply, Doc. 46. With the benefit of full briefing on both

sides, the Court finds that a hearing is unnecessary and denies the amended

petition.

FACTUAL BACKGROUND

The underlying events took place over a period of several days. The Florida

Supreme Court1 provided the factual details accurately here based upon the

undersigned’s reading of the trial transcript:

With the aid of codefendant Samuel Pitts, Wright carjacked, kidnapped,

robbed, and murdered David Green and James Felker while engaged in

a three-day crime spree that spanned several areas in Central Florida.2

During the crime spree, Wright was connected multiple times to a

stolen pistol that matched the caliber of casings discovered at the scene

of the murders. The trial court allowed the State to present evidence of

these collateral acts to demonstrate the context in which the murders

occurred and to explain Wright’s possession of the murder weapon.

2 Wright and Pitts were tried separately for the murders.

Pitts was convicted of two counts of first-degree murder

and other offenses related to this incident. He received

sentences of life imprisonment for the murders.

The spree began when Wright stole a pistol and a shotgun from the

Shank family’s residence in Lakeland on Thursday, April 20, 2000. On

the Friday morning following the burglary, Wright used the pistol to

commit a drive-by shooting in a neighborhood near the Shank

residence.3 That evening, Wright and Samuel Pitts abducted Green and

Felker in Lakeland, drove Green’s vehicle approximately fifteen miles

to Polk City, and murdered the victims in a remote orange grove.

Wright shot one victim with a shotgun, which was never recovered, and

the other victim with a pistol that used the same caliber bullets as the

gun stolen from the Shank residence. Wright then abandoned the

victim’s vehicle in a different orange grove in Auburndale. In nearby

Winter Haven, Wright used the Shank pistol in a carjacking that

occurred during the morning hours on Saturday, April 21, 2000. That

afternoon, law enforcement responded to a Lakeland apartment

1 Wright v. State, 19 So. 3d 277, 283–91 (Fla. 2009) (Wright I).

complex based on reports of a man matching Wright’s description

brandishing a firearm.

3 For the drive-by shooting, Wright was convicted of

attempted second-degree murder and two counts of

attempted felony murder.

When an officer approached, Wright fled, but he was eventually

arrested in the neighboring mobile home park. Ammunition matching

the characteristics of the ammunition stolen from the Shank residence

was found in his pocket. The stolen pistol was also recovered near the

location where Wright was arrested. Almost a week later, the bodies of

the victims were discovered. Thus, the following facts are presented in

chronological order to demonstrate the geographical nexus of the

offenses and to provide a complete picture of the interwoven events

surrounding the double murders.

The Crime Spree

The Shank Burglary: Thursday, April 20, 2000

On Thursday, April 20, 2000, Wright unlawfully entered a Lakeland

home with two accomplices. Wright testified that they separated to

search the house for items to steal. In one bedroom, Wright found and

handled a plastic bank filled with money. One of his accomplices

discovered a 12-gauge, bolt-action Mossberg shotgun and a loaded

Bryco Arms .380 semi-automatic pistol with a nine-round clip in

another bedroom.4 The accomplice also found four shells for the

shotgun in a dresser drawer. In exchange for marijuana, Wright

obtained possession of the pistol from the accomplice.

4 The stolen shotgun was never recovered. References to

the firearm stolen from the Shank residence relate to the

automatic pistol.

When Mark Shank returned home after work to discover his firearms

missing, he notified the Polk County Sheriff’s Office of the burglary.

The Sheriff’s Office lifted latent prints from the house, including

several from the plastic bank. An identification technician with the

Sheriff’s Office matched the latent palm print lifted from the plastic

bank to Wright’s palm print, confirming that Wright was inside the

house where the Shank firearms were stolen. The following day, Wright

used the stolen pistol during a drive-by shooting in a nearby Lakeland

neighborhood.

The Longfellow Boulevard Drive-By Shooting: Friday, April 21, 2000

At approximately 9 a.m. on Friday, April 21, 2000, Carlos Coney and

Bennie Joiner observed a black Toyota Corolla approaching slowly on

Longfellow Boulevard as they were standing outside a nearby house.

Wright and Coney had been embroiled in a continuing dispute since

their high school days. Joiner made eye contact with Wright, who was

sitting on the passenger side. The car made a U-turn and slowly

approached the house again. Wright leaned out the passenger side

window and fired multiple shots. One bullet struck Coney in his right

leg. Coney’s neighbor carried the wounded man to a car and drove

Coney and Joiner to a Lakeland hospital where a .380 caliber projectile

was removed from Coney’s leg.

While Coney was being treated at the hospital, crime-scene

technicians collected cartridge casings and projectiles from the

Longfellow Boulevard scene. Two projectiles had entered the house

and lodged in the living room wall and table. One spent .25 caliber

casing and three spent Winchester .380 caliber casings were recovered

from the driveway and the street. The projectile recovered from

Coney’s leg and the one removed from the living room table were

fired from the .380 pistol stolen from the Shank residence.5 The

recovered casings definitely had been loaded in the stolen pistol, but

the firearms analyst could not state with precision that they had been

fired from the pistol because the casings lacked the necessary

identifying characteristics.

5 However, a .380 handgun could not have fired the .25

caliber bullet. No explanation for the different shell casing

was presented at trial, though it was implied by the defense

that an exchange of gunfire occurred between Wright and

the victims. Coney and Joiner denied having a firearm at

the Longfellow Boulevard residence.

Approximately one hour after the drive-by shooting, Wright

unexpectedly visited James Hogan at a house in Lake Alfred, Florida.

Lake Alfred is approximately fourteen miles away from the Longfellow

Boulevard location. Wright testified that he and an accomplice from the

Shank burglary and Samuel Pitts traveled to see Hogan because the

accomplice wanted to sell the stolen shotgun. When they arrived, the

accomplice attempted to show Hogan the shotgun, but Hogan was not

interested. At that point, Wright pulled a small pistol from under the

floor mat in the front seat of the vehicle. This placed Wright in

possession of the possible murder weapon on the day of the murders.

The Double Murders in the Orange Grove: Friday, April 21, 2000

The trio remained with Hogan for approximately twenty minutes and

then left together to return to the Providence Reserve Apartments on

the north side of Lakeland. Wright and Samuel Pitts lived at that

apartment complex with Pitts’ family and girlfriend, Latasha Jackson.

To support his theory of defense that he did not possess the pistol during

the time the murders likely occurred, Wright testified that following the

drive-by shooting, he informed Samuel Pitts of the details of the

shooting. Wright explained that he had an obligation to disclose his

actions to Pitts, who was the leader of a gang of which Wright was a

member. According to Wright, the drive-by shooting upset Pitts, and

Pitts demanded that Wright surrender the pistol. Wright asserted that he

complied with Pitts’ demand.

According to Wright’s testimony, around twilight that Friday evening,

a customer messaged Wright to inquire about procuring marijuana.

Wright agreed to meet the customer at a supermarket parking lot and

started walking toward the store. Shortly after 7:15 that evening, a

female friend saw Wright walking down the street and offered him a

ride, which Wright accepted. Then, without provocation, Wright said,

“I ain’t even going to lie, I did shoot the boy in the leg yesterday,”

more likely than not referring to the Longfellow Boulevard drive-by

shooting. When they arrived at the store, Wright exited the vehicle in

the supermarket parking lot without further elaboration of the

statement.

Some time that night, James Felker and his cousin, David Green, were

abducted from that parking lot and murdered. The cousins left Felker’s

house at approximately 8 p.m. in Green’s white Chrysler Cirrus for a

night of bowling. Both men were carrying at least $100 at that time.

Several witnesses testified that Wright had willingly described the

details of the abduction. Wright had informed the witnesses that he

approached Felker and Green in the supermarket parking lot and

requested a cigarette. When they refused, Wright pulled out a pistol and

forced his way into the backseat of Green’s vehicle. Wright then

ordered Green to drive to the Providence Reserve Apartments, where

Pitts entered the vehicle.

As this group left the apartments between 10 and 10:45 p.m., Wright

ran a stop sign in the victim’s car. A detective observed the traffic

infraction and conducted a tag check as he followed the vehicle. The

tag check reported that the license plate was registered to an unassigned

Virginia plate for a blue, 1988, two-door Mercury, which did not match

the vehicle to which it was attached.

After receiving this report, the detective activated his emergency lights

and attempted to stop the white Chrysler. The Chrysler sped through

another stop sign and accelerated to sixty miles per hour. The detective

remained in pursuit for ten to fifteen minutes before his supervisor

ordered the pursuit terminated. An all-county alert was issued to law

enforcement to be on the lookout for the Chrysler. The identification

developed from the pursuit connected Wright to the victim’s vehicle on

the night of the murders.

R.R., a juvenile who also lived at the Providence Reserve Apartments,

testified that Wright informed him that Wright and Pitts drove the

victims ten miles from the abduction site to a remote orange grove in

Polk City. When the victims insisted that they had nothing to give the

assailants, Wright exited the car. One of the victims also exited,

possibly by force, and Wright shot him. The other victim then exited,

and Wright shot him as well. While one of the men continued to crawl

and moan, Pitts retrieved the shotgun from the trunk and handed it to

Wright, who then shot this victim in the head execution-style. Wright

and Pitts abandoned the bodies and drove away in the Chrysler.6

6 Wright testified, to the contrary, that after he arrived at

the supermarket, he conducted a drug transaction and then

visited other apartments in the area to sell more drugs.

After making stops at various apartments, he began

walking back to the Providence Reserve Apartments.

While he was walking, Pitts drove up in a white vehicle.

Pitts asked Wright if he wanted to drive, and as Wright

walked to the driver’s side, he noticed blood on the

vehicle. Wright suggested that they take the vehicle to an

apartment to wash it. Wright testified that it was while they

were driving to the apartment that the police chase

occurred.

Sometime between 10 p.m. and midnight, Pitts and Wright drove the

Chrysler to a Lakeland apartment complex to wash blood spatter off the

vehicle. When they arrived at the apartment, Pitts ordered Wright to

wash the car while Pitts removed items from the vehicle, including a

phone, a black bag, and a Polaroid camera. Pitts placed the items in his

sister’s vehicle. She had arrived with R.R., who testified that when they

arrived, Pitts and Wright were acting nervous and scared. On the ride

back to the apartment complex, Pitts told R.R. “that they pulled off a

lick and that things was getting crazy.”

Wright testified that before Pitts left, he ordered Wright to burn the car

and throw the weapon into a lake. Instead, Wright kept the pistol and

later drove back to Hogan’s house in Lake Alfred. Hogan suggested

that Wright dump the car in an Auburndale orange grove, and Wright

followed that suggestion.

The Winter Haven Carjacking: Saturday, April 22, 2000

In the vicinity of the Auburndale orange grove where the homicide

victim’s vehicle was abandoned, Ernesto Mendoza and Adam

Granados were addressing a car battery problem in the parking lot of a

fast-food restaurant. It was during those early morning hours of

Saturday, April 21, that Wright allegedly approached them, pointed a

small handgun at a female with them, and announced that he was going

to take the car.7 Wright immediately entered Mendoza’s vehicle and

sped away. Granados and Mendoza quickly entered a truck and pursued

Wright. The car chase continued through several streets before Wright

ran the vehicle onto the curb near a car dealership in Lake Alfred.

Wright exited the vehicle, fired several gunshots at Granados and

Mendoza, and then escaped across the car lot in the direction of James

Hogan’s house.

7 Wright refused to testify about the details of the

carjacking because he was not charged with this offense.

Several .380 caliber casings were also collected from this scene. These

casings were later identified as having been fired from the pistol stolen

from the Shank residence. One latent print was lifted from the interior

side of the driver’s window of Mendoza’s car, and three were lifted

from the steering wheel. All of these latent prints matched Wright’s

known fingerprints.

Hogan, whose house was within walking distance of the car dealership

from which Wright was seen fleeing, testified that when he returned

home at approximately 12:30 a.m. on Saturday, he found Wright seated

there. Wright asked Hogan to drive him back to the Providence Reserve

Apartments, and on the way there, Wright spontaneously said “they had

shot these two boys,” and that he had also “got into it with some

Mexicans.” Wright confessed to Hogan that they had transported two

white men to an orange grove and shot both men with a pistol and a

shotgun. Wright also confirmed that they engaged in a high-speed chase

with police in Lakeland. However, at that point, Wright did not disclose

the identity of the other person who aided in the murders.

The Providence Reserve Foot Chase and Subsequent Investigation:

Saturday, April 22, 2000

After Hogan returned Wright to the apartment complex following the

Winter Haven carjacking, Wright was observed throughout Saturday

handling a pistol at the Providence Reserve Apartments. He also spoke

with people regarding the murders. Wright confessed to R.R. that he

received a cellular phone from a “lick,” meaning it had been stolen. He

also described to R.R. the details of the abduction and murders. Wright

then gave the stolen phone to R.R.

Later that day, Wright was seated with Latasha Jackson on the steps of

the apartment building, and Wright had a small firearm resting in his

lap. During their conversation, Wright told Jackson that he shot two

white men in an orange grove and that he had shot one in the head. Soon

after this, the police responded to a report of an armed man, who

matched Wright’s description, at that location.8

8 Wright was charged with aggravated assault related to

this incident, but was acquitted.

A uniformed officer approached Wright and Jackson and stated that he

needed to speak with Wright. Wright jumped over the balcony railing

and raced down the stairs. As Wright ran from the apartment, his tennis

shoes fell off. Jackson picked up the shoes and placed them by the

apartment door. The police later seized these sneakers from the

apartment during the murder investigation. James Felker’s DNA was

determined to match a blood sample secured from the left sneaker.

Though Wright contended that the shoes were not his and that he had

never worn them, both Wright and Pitts were required to try on the

shoes. The shoes were determined to be a better fit for Wright than for

Pitts.

Several officers chased Wright from the Providence Reserve

Apartments to a nearby mobile home park, which was located across a

field from the apartment complex. During the chase, the officers

noticed Wright holding his pants pocket as if he carried something

inside. Wright was arrested at the mobile home park, and his pocket

contained live rounds and a box of ammunition containing both .380

Federal and Winchester caliber of rounds. This was the same caliber

ammunition as that recovered from the drive-by shooting, the murders,

and the carjacking.

After the police departed, a resident of that mobile home park entered

her car to leave for dinner. Her vehicle had been parked there with the

windows down when Wright had been arrested near her front door. As

she entered her vehicle, she discovered a pistol, which was not hers.

This weapon was determined to be the pistol stolen from the Shank

residence.

Wright was taken into custody pending resolution of the aggravated

assault charges. While Wright was in custody, Auburndale police

officers discovered David Green’s white Chrysler abandoned in an

orange grove. Crime-scene technicians discovered blood on both the

exterior of the vehicle and on the interior left side. Four of the blood

samples from the vehicle matched James Felker’s DNA profile. Further

investigation revealed that prints lifted from multiple locations on the

vehicle matched known prints of Wright.9

9 None of the latent prints lifted from the Chrysler matched

the known fingerprints of Pitts or R.R.

A deputy with the Polk County Sheriff’s Office linked this abandoned

vehicle with a missing persons report for David Green and James

Felker. After the vehicle was discovered, the family of the victims

gathered at the orange grove to search for any items that might aid in

the missing persons investigations. Green had his personal Nextel

cellular phone and a soft black bag filled with special computer tools

that he utilized for his work in the Chrysler. A Polaroid camera had also

been left in Green’s vehicle. Green's fiancée discovered her son's jacket

in that grove, but Green’s workbag, tools, cellular phone, and camera

were all missing from the vehicle.

A couple of days after the murders, Pitts attempted to sell the black bag

that contained Green’s computer tools to a pawnshop. R.R. assisted his

stepfather in securing proceeds for the Polaroid camera from another

pawnshop. The police had begun contacting pawnshops looking for the

items missing from Green’s car and recovered the black computer bag

and the pawn tickets, which led them to Pitts and R.R.10 Further

investigation established that three latent fingerprints from the black

bag matched Wright’s known fingerprints.

10 During trial, Green’s fiancée identified the Polaroid

camera as the one she purchased with Green. She also

identified his black workbag.

Following the information obtained from the pawnshop, the police

traveled to R.R.’s residence where they identified and seized the Nextel

cellular phone Wright had given R.R. The phone seized from R.R.’s

residence matched the serial number of David Green’s phone. R.R. told

the police that Wright, who was still in jail on the aggravated assault

arrest, had given him the phone.

A few hours later, a detective questioned Pitts, who revealed the general

location of the bodies. Six days following the disappearance of David

Green and James Felker, their bodies were discovered in a remote

orange grove in Polk City. Each man had been shot three times, and

spent bullet cases surrounded the bodies. David Green was face-up,

with bullet wounds in his chest and in his head. From his outstretched

hand, the police recovered a wallet that contained Green’s license.

James Felker was face-down in the same area, with three bullet wounds

in his head. Green’s cause of death was determined to be multiple

gunshot wounds to the chest, the forehead, and the back of his neck. A

medical examiner removed a projectile from Green’s face and a

deformed projectile from his throat. Felker’s cause of death was

determined to be gunshot wounds to the head, one by a .380 caliber

projectile to the forehead and two by a shotgun blast to the back of the

head. Except for the gunshot wound to Green’s chest, any of the

gunshot wounds would have rendered the victims unconscious

instantaneously.

Law enforcement never recovered the shotgun used in these murders.

However, a Florida Department of Law Enforcement firearms expert

inspected the pistol recovered from the mobile home park, which was

identified as the pistol stolen from the Shank residence, and the

firearms-related evidence collected from the various crime scenes. The

expended projectiles from the pistol and those found in Wright’s

possession were of the same caliber but were different brands. Due to

the damage sustained by some of the projectiles, the expert was unable

to conclusively establish that the pistol stolen from the Shank residence

fired all .380 caliber bullets discovered at the scene of the murders.

However, the projectiles and the firearm were of the same caliber and

displayed similar class characteristics. Five Federal .380 caliber casings

discovered near the victims were positively identified as having been

fired from the pistol. Thus, the stolen Shank pistol had likely been used

in, and connected with, the Longfellow Boulevard drive-by shooting,

the double murders of David Green and James Felker, and the Winter

Haven carjacking.

The underlying case history is as follows: Petitioner was charged on May 11,

2000 with carjacking, two counts of kidnapping, two counts of robbery, and two

counts of first degree murder. A2 at 341–47.2 The case was mis-tried twice, once

for an evidentiary mishap during trial, and the second one due to a jury deadlock.

On the third trial in late 2004, the jury convicted Petitioner of all counts. A4 at

707–15. Petitioner waived jury at the penalty phase. A33 at 5047–123. On

October 12, 2005 the trial court entered its sentencing order, imposing the death

sentence for the two murders. The trial court found four aggravating

circumstances, three statutory mitigating circumstances, and several nonstatutory

mitigating circumstances.3

The Florida Supreme Court affirmed on direct appeal, with the factual

recitation set forth above. Wright I, 19 So. 3d at 283. Petitioner underwent a full

2 The physical record, in five boxes in good order, is indexed at Doc. 43. The trial record on

appeal bears prefix “A.” The postconviction record has prefix “B.” The U.S. Supreme Court

certiorari record has a “C” prefix.

3 The four statutory aggravating circumstances were 1) previous conviction of another capital

felony or felony involving violence to the person (great weight); 2) felony for pecuniary gain (no

weight); 3) homicide committed in cold, calculated, and premediated manner without any

pretense of moral or legal justification (great weight); and 4) felony committed for purpose of

avoiding or preventing lawful arrest (great weight). The trial court found three statutory

mitigating circumstances, and gave them some weight: 1) offense committed under the influence

of extreme mental or emotional disturbance; 2) Petitioner’s capacity to appreciate the criminality

of his conduct or to conform his conduct to the requirements of law was substantially impaired;

and 3) Petitioner was 19 years old at the time of the homicides. Petitioner offered approximately

34 non-statutory mitigating circumstances and the Court found several including those related to

Petitioner’s low IQ, low self-esteem, emotional deprivation during his upbringing, substance

abuse, neurological impairments, which affected his impulse control and reasoning ability, lack

of mature coping skills, and lack of capacity to develop mature, health relationships. Wright I,

19 So. 3d at 290 n.16.

round of state collateral review with no success, some of which is discussed below

when it is pertinent to one or more grounds for relief. Petitioner now brings this

amended petition for federal habeas relief under 28 U.S.C. § 2254, Doc. 36, and

memorandum in support. Doc. 38. The State has filed a response, Doc. 42, to

which Petitioner replied. Doc. 46.

The standards by which this petition is adjudged are set forth as follows:

Because it was filed after April 24, 1996, this case is governed by the

Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254

(“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Woodford v.

Garceau, 538 U.S. 202, 210 (2003).

Under the AEDPA, a writ of habeas corpus cannot be granted unless the

petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1);

see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S.

509, 510 (1982). To exhaust state remedies, the petitioner must “fairly present” his

claims to the state’s highest court in a procedurally appropriate manner.

O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). A claim is “fairly presented” if

the petitioner has described the operative facts and the federal legal theory on

which his claim is based so that the state courts have a fair opportunity to apply

controlling legal principles to the facts bearing upon his constitutional claim.

Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275–

78 (1971). Unless the petitioner clearly alerts the state court that he is alleging a

specific federal constitutional violation, he has not fairly presented the claim. A

petitioner must make the federal basis of a claim explicit either by citing specific

provisions of federal law or federal case law, or by citing state cases that explicitly

analyze the same federal constitutional claim. Howell v. Mississippi, 543 U.S. 440,

443–44 (2005).

A habeas petitioner’s claims may be precluded from federal review in two

ways. First, a claim may be procedurally defaulted in federal court if it was

actually raised in state court but found by that court to be defaulted on state

procedural grounds. Coleman, 501 U.S. at 729–30. Second, a claim may be

procedurally defaulted if the petitioner failed to present it in state court and “the

court to which the petitioner would be required to present his claims in order to

meet the exhaustion requirement would now find the claims procedurally barred.”

Id. at 735 n.1.

The AEDPA established a “substantially higher threshold for habeas relief”

with the “acknowledged purpose of ‘reducing delays in the execution of state and

federal criminal sentences.’” Schriro v. Landrigan, 550 U.S. 465, 475 (2007)

(quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003)). The AEDPA’s

“‘highly deferential standard for evaluating state-court rulings,’ demands that state-

court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S.

19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7

(1997)).

Under the AEDPA, a petitioner is not entitled to habeas relief on any claim

“adjudicated on the merits” by the state court unless that adjudication: (1) resulted

in a decision that was contrary to, or involved an unreasonable application of,

clearly established federal law, as determined by the Supreme Court of the United

States; or (2) resulted in a decision that 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). The relevant state court decision is the last

reasoned state decision regarding a claim. Kernan v. Hinojosa, 136 S. Ct. 1603,

1605–06 (2016) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991)).

“The threshold question under the AEDPA is whether [a petitioner] seeks to

apply a rule of law that was clearly established at the time his state-court

conviction became final.” Williams v. Taylor, 529 U.S. 362, 390 (2000).

Therefore, to assess a claim under subsection (d)(1), the Court must first identify

the “clearly established Federal law,” if any, that governs the sufficiency of the

claims on habeas review. “Clearly established” federal law consists of the

holdings of the Supreme Court at the time the petitioner’s state court conviction

became final. Williams, 529 U.S. at 412; see Carey v. Musladin, 549 U.S. 70, 74

(2006).

The Supreme Court has provided guidance in applying each prong of §

2254(d)(1). The Court has explained that a state court decision is “contrary to” the

Supreme Court’s clearly established precedents if the decision applies a rule that

contradicts the governing law set forth in those precedents, thereby reaching a

conclusion opposite to that reached by the Supreme Court on a matter of law, or if

it confronts a set of facts that is materially indistinguishable from a decision of the

Supreme Court but reaches a different result. Williams, 529 U.S. at 405–06; see

Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). In characterizing the claims

subject to analysis under the “contrary to” prong, the Court has observed that “a

run-of-the-mill state-court decision applying the correct legal rule from [the

Supreme Court’s] cases to the facts of the prisoner’s case would not fit

comfortably within § 2254(d)(1)’s ‘contrary to’ clause.” Williams, 529 U.S. at

406.

Under the “unreasonable application” prong of § 2254(d)(1), a federal

habeas court may grant relief where a state court “identifies the correct governing

legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts

of the particular . . . case” or “unreasonably extends a legal principle from

[Supreme Court] precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context where it should

apply.” Williams, 529 U.S. at 407. For a federal court to find a state court’s

application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the

petitioner must show that the state court’s decision was not merely incorrect or

erroneous, but “objectively unreasonable.” Id. at 409; Visciotti, 537 U.S. at 25.

Under the standard set forth in § 2254(d)(2), habeas relief is available only if

the state court decision was based upon an unreasonable determination of the facts.

Miller–El v. Dretke, 545 U.S. 231, 240 (2005) (Miller–El II). A state court decision

“based on a factual determination will not be overturned on factual grounds unless

objectively unreasonable in light of the evidence presented in the state-court

proceeding[.]” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (Miller–El I). In

considering a challenge under 2254(d)(2), state court factual determinations are

presumed to be correct, and a petitioner bears the “burden of rebutting this

presumption by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Miller–

El II, 545 U.S. at 240. However, only the state court’s factual findings, not its

ultimate decision, are subject to 2254(e)(1)’s presumption of correctness. Miller–

El I, 537 U.S. at 341–42 (“The clear and convincing evidence standard is found in

§ 2254(e)(1), but that subsection pertains only to state-court determinations of

factual issues, rather than decisions.”).

PETITIONER’S GROUNDS ONE, TWO, AND THREE

These three grounds comprise the bulk of the petition. They address

Petitioner’s mental status and claimed intellectual disability. They are related, and

the Court combines them here for discussion. Ground I, which spans 82 pages of

the 160-page petition, seeks relief because Petitioner is intellectually disabled and

thus may be not be put to death under the eighth amendment to the U.S.

Constitution.4 Ground II seeks relief because Florida Statutes § 921.137(4),5

which requires a defendant in the death phase to establish intellectual disability by

clear and convincing evidence, imposes a standard of proof upon a defendant that

violates the defendant’s due process rights under the fifth, sixth, eighth and

fourteen amendments.6

4 To quote the petition: “Ground One: Wright is intellectually disabled, and his execution is

barred by the eighth amendment of the United States Constitution. The state court’s resolution

of Wright’s claim was an unreasonable application of clearly established federal law, including

Atkins v. Florida, 536 U.S. 304, Hall v. Florida, 134 S. Ct. 1986 (2014), and Moore v. Texas,

137 S. Ct. 1039 (2017). Further, the state court made an unreasonable determination of the facts

in light of the state court record.” Doc. 36 at 9.

5 This statute, entitled “Imposition of the death sentence upon an intellectually disabled

defendant prohibited” states in pertinent part: “After a defendant who has given notice of his or

her intention to raise intellectual disability as a bar to the death sentence is convicted of a capital

felony . . . the defendant may file a motion to determine whether the defendant is intellectually

disabled. Upon receipt of the motion, the court shall appoint two experts in the field of

intellectual disabilities who shall evaluate the defendant and report their findings to the court . . .

. At the final sentencing hearing, the court shall consider the findings of the court-appointed

experts and consider the findings of any other expert which is offered by the state or the defense

on the issue of whether the defendant has an intellectual disability. If the court finds, by clear

and convincing evidence, that the defendant has an intellectual disability . . . the court may not

impose a sentence of death and shall enter a written order that sets forth with specificity the

findings in support of the determination.”

6 To quote the petition: “Ground Two: Fla. Stat. § 921.137(4) is unconstitutional and violates

Wright’s due process rights as protected by the fifth, sixth, eighth, and fourteen amendments to

the United States Constitution. The state court’s resolution of Wright’s claim was an

unreasonable application of clearly established federal law. Further, in many respects, the state

court made an unreasonable determination of facts in light of the state court record.” Doc. 36 at

91.

Ground III also addresses mental disability. It alleges that trial counsel

provided ineffective assistance of counsel by failing adequately to present

mitigation evidence (related to mental disability) at the penalty phase.7

Procedural Background of these Claims: After conviction below,

Petitioner waived the jury recommendation in the penalty phase, and the jury was

discharged. During the penalty hearing, Petitioner filed a motion to bar the death

penalty due to intellectual disability (“ID”), then known under the term “mental

retardation.” A5 at 743–44. The trial court conducted a lengthy penalty phase

hearing, receiving several mental health expert witnesses, including two retained

by Petitioner and two that the Court appointed. The Court found Petitioner was not

intellectually disabled, primarily due to his tested IQ of 75, 77, and 82.8 The Court

did not consider adaptive functioning specifically at this penalty phase. A5 at 829.

Petitioner did not bring this point on direct appeal. Wright I.

In his postconviction proceedings, Petitioner received a first hearing, in

October 2012 lasting several days, on his collateral ID claims and other trial-

7 To quote the petition: “Ground Three: Wright received prejudicial ineffective assistance of

counsel at the penalty phase of his trial when trial counsel failed to adequately investigate,

prepare and present available mitigation. The state court’s resolution of Wright’s claim was an

unreasonable application of clearly established law, including Strickland v. Washington, 366

U.S. 668 (1984), Wiggins v. Smith, 539 U.S. 510 (2003), Williams v. Taylor, 529 U.S. 362

(2000), Porter v. McCollum, 558 U.S. 30 (2009), Sears v. Upton, 130 S. Ct. 3259 (2010), and

Rompilla v. Beard, 545 U.S. 374 (2005). Further, in many respects, the state court made an

unreasonable determination of facts in light of the state court record.” Doc. 36 at 93.

8 A5 at 755, 789, 791.

related claims. He called multiple witnesses. The state circuit court ruled against

Petitioner after this hearing, in a lengthy order. Doc. 37 at 26–116. But during the

pendency of Petitioner’s appeal from this ruling, the U.S. Supreme Court issued its

opinion in Hall v. Florida, in which it held Florida’s intellectual disability scheme

unconstitutional insofar as it equated adaptive functioning to a strict IQ score

requirement. 572 U.S. 701, 704–05 (2014). Thereafter, the Florida Supreme Court

relinquished jurisdiction of Petitioner’s appeal and allowed him to file a renewed

motion for determination of ID with the postconviction court.

After Petitioner refiled his postconviction ID motion post-Hall, the

postconviction court granted a renewed evidentiary hearing on ID, where the court

heard from additional witnesses, including more mental health experts. Doc. 37 at

118–29. The state circuit court denied Petitioner’s renewed motion in 2015, id.,

and Petitioner appealed.

The result of the appeal was a detailed opinion, Wright II, in which the

Florida Supreme Court undertook a very detailed examination of the record on

Petitioner’s ID claims, and stated: “Given that Wright has not even demonstrated

by a preponderance of the evidence either of the first two prongs for a

determination of intellectual disability, we conclude that he has not demonstrated

that he belongs to that category of individuals that are categorically ineligible for

execution.” Wright v. State, 213 So. 3d 881, 902 (Fla. 2017) (Wright II), cert.

granted, vacated and remanded, 138 S. Ct. 360 (2017).

Two weeks after the Florida Supreme Court issued Wright II, the U.S.

Supreme Court issued an opinion out of Texas on capital punishment intellectual

disability issues, Moore v. Texas, 137 S. Ct. 1039 (2017). Moore was issued in

spring 2017. Petitioner filed a certiorari petition from Wright II that the Supreme

Court first addressed upon returning from their 2017 summer recess. That Court

granted, vacated, and remanded (“GVR”) Wright II in light of Moore. Wright II

thus came back on remand to the Florida Supreme Court in late 2017 without

opinion for reconsideration in light of Moore. Wright v. Florida, 138 S. Ct. 360

(2017). The Florida Supreme Court then issued Wright III. Wright v. State, 256

So. 3d 766 (Fla. 2018) (Wright III).

In Wright III the Florida Supreme Court first discussed, correctly, that the

“GVR” remand after Moore was not a merits determination nor precedential. 256

So. 3d at 769. The Wright III court set forth to “reconsider this case in light of

Moore to determine if a different outcome is warranted.” Id. at 770. It again

reviewed the two main elements of ID, quantitative intelligence (basically, IQ) and

adaptive functioning, to determine if the Moore opinion changed matters. Upon its

detailed review of the evidence and consideration of Moore, the Florida Supreme

Court held:

At the ID hearing, the parties presented all the evidence that they could

muster, which resulted in an outcome adverse to Wright. Because that

decision was supported by competent, substantial evidence, which we

thoroughly detailed, [in Wright II], we can again conclude that Wright

failed to prove adaptive deficits by clear and convincing evidence—a

conclusion that Moore did not alter.

Wright III, 256 So. 3d 778.

The Florida Supreme Court in Wright III thus reaffirmed denial of

Petitioner’s ID petition. Petitioner’s certiorari petition on Wright III was denied in

June 2019, Wright v. Florida, 139 S. Ct. 2671 (2019), and he filed the instant

amended federal habeas petition shortly thereafter. The petition is timely.

The summary of events is as follows:

April 20–22, 2000: 3-day crime spree and murders

October 18, 2004: the instant (third) trial starts

November 13, 2004: jury guilty verdicts

May 10–11, 2005: penalty phase bench trial

September 22, 2005: penalty phase ID bench hearing

October 12, 2005: sentencing order, death sentence entered

September 3, 2009: direct appeal (Wright I) aff’d by Fla. Sup. Ct.

November 5, 2010: state postconviction petition filed

March 9, 2012: amended state postconviction petition filed

October 16–18, 2012: trial court hearing on postconviction claims

May 22, 2013: trial court denies postconviction claims, appealed

May 27, 2014: U.S. Sup. Ct. issues Florida v. Hall

October 7, 2014: Fla. Sup. Ct. relinquishes pending appeal to trial court for

reconsideration in light of Florida v. Hall

January 5–6 & February 11, 2015: 3 days of hearings on post-Hall ID

motion

March 26, 2015: trial court denies post-Hall ID motion, appealed

March 16, 2017: postconviction appeal aff’d by Fla. Sup. Ct., revising an

earlier 2016 affirmance (Wright II)

October 16, 2017: on cert. petition, U.S Sup. Ct. grants GVR of Wright II in

light of new case Moore v. Texas

Sept. 27, 2018: Fla. Sup. Ct. affirms postconviction denial (Wright III)

June 3, 2019: U.S. Sup. Ct. denies cert. on Wright III

The Legal Test for The Intellectual Disability Defense: In Atkins v.

Virginia, the Supreme Court held that the eighth amendment to the U.S.

Constitution “restrict[s] . . . the State’s power to take the life of” an intellectually

disabled individual. 536 U.S. 304, 321 (2002). Adjudications of intellectual

disability should be ‘informed by the views of medical experts.” Hall v. Florida,

572 U.S. at 721. The “generally accepted” approach, according to the Moore

Court, is to consider 1) intellectual functioning deficits, indicated by an IQ score

roughly two standard deviations below the mean, 2) adaptive deficits, which are

the inability to learn basic skills and adjust behavior to changing circumstances,

and 3) require onsets of these deficits while still a minor. Moore, 137 S. Ct. at

1045; see also Atkins, 536 U.S. at 308 n.3.

The Florida Courts Reasonably Held Petitioner is Not Mentally Disabled:

Trial Evidence Shows No Mental Disability

Before delving into what the Florida courts did to adjudicate Petitioner’s

intellectual disability claim in the penalty and postconviction phases, it is

worthwhile to simply state, in lay terms, what the trial record shows about

Petitioner’s mind. The record shows this: Tavares Wright is not intellectually

disabled. Tavares Wright is not, in the former term, mentally retarded.

The one portion of this record in which Petitioner could neither malinger

about nor script, and had to show his full wits, was in his trial direct examination

and more importantly in his cross examination. The trial record shows that

Petitioner ably and clearly testified in his defense. A30 at 4517–626. He was

coherent. He was clear. On both direct and cross he understood the questions and

his answers were responsive, concise, and lucid. He underwent a thorough cross

examination. He responded politely and firmly, and held up well. He portrayed an

entire and complete version of facts, chronologically, that exculpated him on the

murders and placed blame on the separately-tried codefendant Mr. Pitts. A30 at

4567–622. Petitioner did not stray or deviate from the defense theme and clear

factual version that mapped the path to acquittal.

Petitioner was firm and rational in refusing to testify about the second,

uncharged Mendoza/Winter Haven carjacking for which he could have faced

future criminal exposure. He identified every question that touched on this

uncharged criminal exposure, and he declined to answer them, correctly noting

why. A30 at 4576–79. He effectively parried the prosecutor’s questions. See,

e.g., A30 at 4576, 4606. His trial testimony addressed unimpeachable points of the

State’s case. For example, he noted that he leaned against the victim’s car when

Pitts drove it up, which addressed any fingerprints thereon. A30 at 4547. He had a

plausible and firmly stated reason why bullets that matched the murder weapon

were in his pocket at his arrest. A30 at 4611 (Pitts bought them and later asked

Petitioner to discard along with the gun). He ably and consistently set up a factual

scenario, without logical holes or gaps, whereby Mr. Pitts disappeared alone, and

returned somewhat later driving the victims’ blood-marked car. No one can read

Petitioner’s direct and cross examination and rightly say this man is so bereft of

mind that the eighth amendment bars this punishment.9

In addition to his capable trial testimony other concrete facts in this record

show Petitioner’s mental ability. He earned his GED while in juvenile boot camp.

A39 at 367.10 He did not have a driver’s license because he could not pass the

written test, but he was a capable driver, at one point outrunning the police after a

chase, and later driving the dead victims’ car away to abandon it. A30 at 4547,

4554, 4556, 4563–64; B24 at 1304. He managed his marijuana sales business,

receiving pages from regular customers, and traveling to call on customers and

doling out bags of marijuana and collecting money. A30 at 4521, 4539–41, 4544.

He exchanged marijuana for the pistol used in the murders. Id. at 4520.

9 The Florida Supreme Court stated that “Wright gave extensive testimony during trial, where he

told a coherent narrative of his version of events. He testified at length and was not generally

aided by leading questions. Furthermore, he endured a strong cross-examination by the State….”

Wright II, 213 So. 3d at 900. The state circuit judge who issued the postconviction order found

Petitioner’s trial testimony was “very telling and compelling in gauging the Defendant’s

intellectual functioning and adaptive behavior.” Doc. 37 at 123.

10 A defense expert testified this was not a real high school graduate equivalency degree, but was

a certificate which evidenced something much less. Doc. 36 at 106–07.

He not infrequently criticized his lawyer’s work and strategy, questioning

and suggesting alternate steps. B21 at 733; accord Wright II, 213 So. 3d at 900–01

(“Wright assessed the performance of his counsel across all three of his trials,

sometimes expressing dissatisfaction with their inability to elicit certain evidence

that had been elicited during a previous trial.”). He argued to the state trial court

that his defense lawyers should have prior transcripts on hand to impeach

witnesses. A22 at 2969. He lucidly addressed the court about his worry concerning

trial fairness and engaged in other lucid colloquy with the judge. A4 at 669–75;

A20 at 2581–88. He articulately waived a jury finding on the record, in the penalty

phase, A33 at 5083–92. At that time his lawyer said Petitioner is “articulate,

bright, aware of what’s going on in his reasoning.” He said, “I understood

everything.” A33 at 5092–93.

Family relatives testified that Petitioner reads the Bible often in prison,

writes letters and cards, and asked for a college-level dictionary. A38 at 293–94.

They testified that he learned to work in a fast-paced shelving job at a grocery

store, did not have problems understanding them, and knew how to use the city bus

system. Wright III, 256 So. 3d at 778. In police interviews he recalled addresses

and phone numbers of others. B25 at 1475. The Florida Supreme Court noted

“[t]he interview is inconsistent with an intellectually disabled defendant.” Wright

II, 213 So. 3d at 901.

Florida Court Used Appropriate Procedures and Made Reasonable Findings

Florida statute § 921.137(2) states that “[a] sentence of death may not be

imposed upon a defendant convicted of a capital felony if it is determined in

accordance with this section that the defendant is intellectually disabled.” Section

921.137(1) further states:

As used in this section, the term “intellectually disabled” or

“intellectual disability” means significantly subaverage general

intellectual functioning existing concurrently with deficits in adaptive

behavior and manifested during the period from conception to age 18.

The term “significantly subaverage general intellectual functioning,”

for the purpose of this section, means performance that is two or more

standard deviations from the mean score on a standardized intelligence

test specified in the rules of the Agency for Persons with Disabilities.

The term “adaptive behavior,” for the purpose of this definition, means

the effectiveness or degree with which an individual meets the

standards of personal independence and social responsibility expected

of his or her age, cultural group, and community. . . .

The conclusions of the Florida courts that Petitioner did not meet the

definition of intellectually disabled under this definition are sound, and reasonable.

The state circuit court and Florida Supreme Court followed Atkins, Hall, and

Moore, supra.

Concerning the element of “general intellectual functioning,” a rough,

general inquiry is whether the Petitioner exhibited IQ scores below 70, which is

two standard deviations below the mean. One must take into account the standard

error of measurement (“SEM”) with these tests. Taking the SEM into account,

ranges in the 70 to 75 level still require consideration of adaptive functioning, and

a Petitioner even with a 75 IQ could prove intellectual disability by showing

substantial adaptive deficits. Hall, 572 U.S. at 722 (quoting Atkins, 536 U.S. at

309 n.5).

The IQ scores present in this record are generally higher than those recently

reviewed by the Eleventh Circuit in a capital case affirming denial of relief. See

Clemons v. Comm’r, Ala. Dept. Corr., __ F.3d __, 2020 WL 4370963, at *13 (11th

Cir. July 30, 2020) (Clemons’ IQ scores were 51, 58 adjusted to 66, 67 adjusted to

60, 73, 77, 84).

Both the state circuit court11 and Florida Supreme Court noted that Petitioner

has taken a total of nine IQ tests, all of them reported full-scale scores of 75 or

above. His highest was a full-scale score of 82. As to this 82, Petitioner’s own

expert testified it was “valid and free of any practice effect concerns.” Wright II,

213 So. 3d at 897. These tests started at age ten. On the IQ testing element alone,

Petitioner clearly is not disabled.12 Even if one factored in the SEM, and

hypothetically said every test taken was too high by the maximum SEM rate,

Petitioner is still over 70 on each of them save two, as he scored 75 on two of

11 The postconviction trial court’s detailed 2013 order can be found at Doc. 37 at 26. The same

court’s order, after remand due to Hall can be found at Doc. 37 at 118. Both orders show a very

detailed, fact-based postconviction inquiry with several dozen witnesses. The postconviction

court heard testimony, all told, from at least seven mental health experts.

12 Petitioner scored a 76, 80, and 81 on his first three IQ tests at age 10 or 11. Doc. 36 at 89, 102.

He scored 75 on his next test at age 16. Id. He took two abbreviated tests in 2001 and 2004. He

took two full tests in 2005, scoring 82 and 75, respectively. Doc. 36 at 15, 103.

them. The data simply shows, no matter how it is viewed, tests almost universally

over 70 and some over 80. Summarizing all the IQ test evidence accurately, the

Wright II court held: “Wright has not proven even by a preponderance of the

evidence, and certainly not by clear and convincing evidence, that he is of

subaverage intellectual functioning.” 213 So. 3d at 896–98. These various IQ

tests, by various practitioners spanning over a decade, are in the record; all of them

augur against Petitioner on the first “general intellectual functioning” element of

mental disability. Id. The Florida Supreme Court reaffirmed this proper finding

after the Moore remand, in Wright III. 256 So. 3d at 771–72. The Wright III court

held: “Based on the competing medical testimony of Dr. Kasper and Dr.

Gamache—along with numerous IQ test scores above 70 after SEM adjustments—

there was competent, substantial evidence for the postconviction court to conclude

that Wright failed to prove significant subaverage intellectual functioning by clear

and convincing evidence.” 256 So. 3d at 771–72.

The record that Petitioner suffers no qualifying ID is strengthened by the

indication in this record that Petitioner may have been malingering in some tests.

The State expert expressed these concerns and the Florida Supreme Court was

reasonable in considering the likelihood of malingering when reviewing this

record. Wright II, 213 So. 3d at 898. In Clemons, supra, the Court noted that “it is

abundantly clear that a state court may discount IQ scores where there is evidence

of malingering.” 2020 WL 4370963, at *13 (citing Carroll v. Sec’y DOC, 574

F.3d 1354, 1359, 1367–68 (11th Cir. 2009)).

Additionally, the Florida courts properly considered the second ID element

of “adaptive functioning,” consistent with prevailing U.S. Supreme Court

pronouncements. The Florida Supreme Court consulted and followed modern

medical advice, citing to the authoritative AAIDD-11 and DSM-5 definitions of

adaptive functioning and discussing how those authorities impacted Petitioner’s

case.13 Wright III, 256 So. 3d at 773. The state courts properly found Petitioner

had not proven adaptive functioning deficits. Considering the multiple mental

health experts who examined Petitioner at length and testified on this topic at

length in the hearings on mental disability, the lay witnesses, the crimes at bar and

the trial testimony, the Wright II court found “all of these types of evidence refute

that Wright has concurrent deficits in adaptive functioning.” 213 So. 3d at 898–99.

The Florida Supreme Court provided a detailed, multi-page summary in this

regard, id. at 898–902, which is well based in the evidentiary record. The Florida

Supreme Court then readdressed the findings at length, including a full discussion

of the AAIDD-11 and DSM-5 standards in Wright III. 256 So. 3d at 773–78. This

13 These sources are DSM-5, i.e. American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders 37 (5th ed. 2013) and AAIDD-11, American Association of

Intellectual Development Disabilities, Intellectual Disability: Definition, Classification, and

Systems of Supports 5 (11th ed. 2010). See Wright III, 256 So. 3d at 771–76.

discussion closely followed Hall and Moore. It is noteworthy that even

Petitioner’s expert agreed that Petitioner did not have current deficits in the social

and practical skills domains. Wright III, 256 So. 3d at 777; Wright II, 213 So. 3d

at 900. The only adaptive deficit that Petitioner’s expert Dr. Kasper could point to

is in the subcategory of conceptual skills.

In crediting the State’s expert, both the trial court and the Florida Supreme

Court exercised reasonable judgment based upon the extensive record, consistent

with federal constitutional principles. As noted above, the only adaptive function

in dispute was in regard to conceptual skills. And:

To a large extent, [the State expert’s] findings with regard to conceptual

skills related to Wright’s ability to read and write, understand numbers

and time, comprehend his current legal circumstances, and conduct

monetary transactions prior to incarceration. [citation omitted] These

findings all directly impact and are connected with adaptive functioning

within the conceptual domain. See DSM-5, at 37 (identifying

“memory, language, reading, writing, math reasoning, acquisition of

practical knowledge, problem solving, and judgment in novel

situations” as hallmarks of the conceptual domains).

Wright III, 256 So. 3d at 777 (citing Moore, 137 S. Ct. at 1045–47).

Under the standard set forth in §2254(d)(2), habeas relief is available only if

the state decision was based upon an unreasonable determination of the facts.

Miller-El II, 545 U.S. at 240. This determination that Petitioner was not suffering

from ID is well founded. Thus Ground One is denied.

In Ground Two, Petitioner asserts that the Florida statute is unconstitutional

and violates his right to due process because it places upon him the burden to prove

intellectual disability by clear and convincing evidence. This ground is due to be

dismissed and denied for three reasons.

First, as the Respondent notes, this is ground is unexhausted, and therefore

procedurally barred, subject to dismissal. This ground was not squarely presented

to the Florida courts in a manner to get a proper merits ruling. Petitioner raised

this point for the first time in his written closing arguments to the state circuit

court, submitted after his final intellectual disability hearing. At the outset of the

hearing Petitioner’s counsel had acknowledged that this was the applicable

standard. B20 at 628–29. The claim that this standard and burden of proof was

unconstitutional did not arise until written closing arguments, where Petitioner

argued in favor of a preponderance standard. B26 at 1715–17. Raising the issue

for first time in a written closing argument does not preserve it under Florida well-

established pleading requirements, as the Wright II court noted. 213 So. 3d at 896

n.3. The federal issue was thus not squarely presented for state court review, and

the point was denied on an adequate and independent state law ground as

unpreserved under Florida procedural rules. “It is a ‘fundamental principle that

state courts are the final arbiters of state law, and federal habeas courts should not

second-guess them on such matters.’” Herring v. Sec’y, Dep’t of Corr., 397 F.3d

1338, 1355 (11th Cir. 2005) (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th

Cir. 1997)). It is thus not reviewable here and should be dismissed. See, e.g.,

Coleman v. Thompson, 501 U.S. 722, 750 (1991); Wainwright v. Sykes, 433 U.S.

72, 78 (1977).

Second, this ground is almost certainly foreclosed by the Eleventh Circuit’s

holding in Raulerson v. Warden, 928 F.3d 987, 1001–04 (11th Cir. 2019). The

Raulerson court held that the Georgia capital sentencing statute did not violate due

process by requiring the capital defendant to prove beyond a reasonable doubt his

intellectual disability. The Georgia beyond a reasonable doubt standard of proof is

greater than Florida’s clear and convincing standard. Petitioner’s claim cannot

survive Raulerson and is without merit until the Eleventh Circuit or Supreme Court

changes that ruling. Just as in Raulerson, Petitioner here does not cite controlling

federal precedent that bars this part of the Florida sentencing procedure. Thus the

Florida court’s decision, even if this Court could presume it was presented to them

squarely, was not “contrary to, or involved an unreasonable application of, clearly

established Federal law.” 28 U.S.C. § 2254(d)(1).

Third, Ground Two is to be denied because of this detailed factual record.

Petitioner did not establish mental disability by clear and convincing evidence, nor

could he establish it by a preponderance. The record, especially the trial evidence,

shows clearly as a matter of fact that he is not intellectually disabled. On his

record, he could meet no standard of proof whatsoever, as the Florida Supreme

Court has noted correctly. Wright II, 213 So. 3d at 898, 902.

Petitioner’s third ground is also related to intellectual disability and the

Court turns to it now. Petitioner asserts that his two defense lawyers provided

constitutionally ineffective assistance of counsel in the penalty phase by

improperly marshaling and presenting mitigating evidence, which mostly related to

intellectual disability. As the petition states, Petitioner claimed that trial counsel

failed to acquire documents, failed to present mitigation witnesses, and failed to

present expert testimony about the “Flynn effect” and the practice effect on IQ

scores. Doc. 38 at 42. The state circuit court held an evidentiary hearing on this

claim, which it denied. The Florida Supreme Court affirmed on this point. Wright

II, 213 So. 3d at 905–08. Thus, Ground Three is exhausted.

This ground requires consideration of the familiar precepts of Strickland v.

Washington, 466 U.S. 668, (1984). This is a very familiar standard and the Court

will not repeat the boilerplate case law here. Suffice it to say, Petitioner must

establish both that his penalty phase lawyers were deficient, and that the deficient

performance prejudiced him so as to deprive him of a reliable proceeding. Id. at

687. Both Florida courts reviewing this matter hewed closely to the constitutional

doctrines set forth in Strickland and federal law. See, e.g., Doc. 37 at 101–09;

Wright II, 213 So. 3d at 903–09.

The test is “whether the state habeas court was objectively reasonable in its

Strickland inquiry,” not an independent assessment of whether counsel’s actions

were reasonable. Putnam v. Head, 268 F.3d 1223, 1244 n.17 (11th Cir. 2001).

Even so, when one reads the trial record and the penalty phase record, one is

impressed by the thorough and effective lawyers who defended Petitioner with

vigor and dedication.

The Florida Supreme Court reviewed in detail the efforts of Petitioner’s

lawyers in the sentencing phase, and we need not detail all that action here. In

summary, as to the alleged failure to acquire documents, during the postconviction

evidentiary hearing Petitioner’s counsel presented his compete school records,

from two states, which indicated Petitioner had several independent “special”

education plans and was both emotionally handicapped and specific learning

disabled. Two of these school reports contained psychological reports that

contained early IQ. One of Petitioner’s mental health experts testified he reviewed

these records, and Petitioner’s family members testified, corroborating these points

as well. It was also established Petitioner’s mother was receiving social security

benefits due to his mental state. The Florida Supreme Court found that documents

complained-of as missing were simply cumulative to this type of evidence. Wright

II, 213 So. 3d at 905–08. The record bears this out. For example, school records

that his present lawyers offer, see amended petition at Doc. 36 at 95, are

cumulative. It was abundantly clear that this man suffers from mental deficits,

severe learning disabilities, and was in special education classes. His precise

mental state was quite apparent and presented by the time the penalty phase

concluded.

Concerning the alleged failure to properly present penalty-phase witnesses,

the Florida Supreme Court noted that:

Wright’s penalty phase counsel pursued the presentation of evidence

of mitigating circumstances diligently and ultimately retained five

expert witnesses. Indeed, trial counsel testified that they specifically

retained Dr. Waldman and Dr. Sesta after the original experts did not

find that Wright was intellectually disabled. Furthermore, as discussed

above, the record reflects that Wright’s trial counsel at times believed

that Wright was bright, a conclusion that was reasonable in light of

Wright’s input with regard to objections across the three trials and his

extensive trial testimony.

Wright II, 213 So. 3d at 906.

These findings are record-based, and sound. As to the claimed failure to

present mitigation witnesses, Petitioner’s lawyers presented additional mitigating

evidence at the penalty phase, beyond that presented at the guilt phase.

The Eleventh Circuit recently addressed this type of claim in a capital case

where, unlike here, additional witnesses were not presented in the penalty phase:

No absolute duty exists to introduce mitigating or character evidence.

[citation omitted] And we have held, in a capital case, that counsel’s

performance was not deficient when he chose to rely on the mitigating

evidence presented in the guilt phase instead of presenting additional

evidence during the penalty phase. [citation omitted] We explained that

“[w]hich witnesses, if any, to call, and when to call them, is the epitome

of a strategic decision, and it is one that we will seldom, if ever, second

guess.”

Raulerson, 928 F.3d at 998 (quoting Waters v. Thomas, 46 F.3d 1506, 1512 (11th

Cir. 1995) (en banc)).

Concerning failure to present penalty phase evidence about various mental

deficits, at the initial penalty phase the defense presented mitigation evidence of

Petitioner’s unfortunate, traumatic childhood which included abandonment and

neglect. One of Petitioner’s experts testified about Petitioner’s in utero exposure to

alcohol and cocaine, which caused microencephaly, a smaller brain and cranium.

He also suffered mild traumatic injuries as a child which the trial court heard

about. Wright I, 19 So. 3d at 289. The sentencing judge received the defense’s

expert testimonial evidence concerning fetal alcohol syndrome and

microencephaly during the penalty phase. Wright II, 213 So. 3d at 906; Doc. 36 at

89 n.15; Doc. 37 at 107.

Likewise, Petitioner’s present argument that counsel were Strickland-

ineffective due to failure to argue the “Flynn effect” is unavailing. This effect

describes an apparently upward drift in IQ scores in this country over the years.

See Doc. 36 at 100. Petitioner contends that means his IQ scores are actually lower

on the older standard that what he registered. A key problem with this argument is

that he took IQ tests quite a long time ago, starting at age 9. They have remained

fairly consistent, and almost always they land him in the area above 70. For this

same reason, Petitioner’s arguments about the “practice effect,”—that scores go up

when you take more tests—fails. Id. As the petition notes, “Wright received a

full-scale 76 on this first test [in 1991].” Id. at 102.

As to the “Flynn effect,” there is no medical/legal consensus. See

Raulerson, 928 F.3d at 1008 (“No adjustment for the Flynn effect is required in

this Circuit.”); Thomas v. Allen, 607 F.3d 749, 757–58 (11th Cir. 2010). Here, the

facts do not fit well to establish such an effect anyway. The courts below were all

quite aware that Petitioner was profoundly impaired, had fetal alcohol syndrome,

and a low IQ. Wright II, 213 So. 3d at 906–07. Under no fair reading of this

record can Petitioner’s trial counsel be described as incompetent to the point of

“not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Strickland, 466 U.S. at 687, 690. And no matter how the Flynn

effect might be deemed in the future, there is voluminous evidence in this case

concerning Petitioner’s mind, and the Florida courts reviewed it in a not

unreasonable manner, consistent with controlling federal law.

The postconviction court took testimony about the Flynn and practice effects

and found no prejudice. The postconviction trial court held:

This Court does not find that [trial] counsel was deficient in not

presenting experts to argue the Flynn Effect and Practice Effect. As

mentioned above, the Defendant scored above 70 on all the IQ tests he

took, and when the scores were adjusted by [defense expert] Dr.

Kasper, the Defendant only scored below 70 on one of the adjusted test

scores. The Court does not find that the Trial Court would have come

to any different conclusion with regard to weighing the mitigation and

aggravation of it had been presented with information about the Flynn

Effect and Practice Effect.”

Doc. 37 at 106–07.

The finding was affirmed by the Wright II court, which held that:

[T]he expert testimony indicated that Wright’s first IQ score was his

most accurate and that all of his subsequent IQ scores fell in the range

derived from his first IQ score after adjusting for the SEM,

notwithstanding any practice effect or Flynn effect concerns.

Furthermore, there was testimony that Wright’s IQ examinations were

far enough apart in time that they would not have been affected by the

practice effect.

Wright II, 213 So. 3d at 906.

To sum up the discussion of Petitioner’s mental state which is set forth in

various arguments in Grounds One, Two and Three, about the best that can be said

for his case was found in 2009 by the Wright I court. There the Florida Supreme

Court noted: “Thus, although we recognize that certain evidence may indicate

some inability for Wright to premeditate daily activities, we conclude that the

mental health evidence does not eradicate the evidence that he committed these

murders in a cold, calculated, and premeditated manner.” Wright I, 19 So. 3d at

277.

This record contains the testimony of at least seven mental health experts

who opined on Petitioner’s mental state.14 The Florida courts quite properly found,

and reasonably relied upon, the extensive evidence showing no ID, and the courts

did so in a manner true to the controlling U.S. Supreme Court standards.

PETITIONER’S GROUND FOUR

Ground Four states that trial counsel rendered ineffective assistance in the

penalty phase by failing adequately to challenge evidence offered in aggravation.15

While incarcerated pending the instant trial, Petitioner was involved in two very

violent jailhouse aggravated batteries, for which he was convicted separately. The

State presented these in aggravation at the penalty phase. The first battery

involved inmate Cassada who testified that Petitioner and others beat him nearly to

death, which placed him in a coma for 30 days. A37–A38 at 159–162. Petitioner

and one other inmate were convicted of the Cassada aggravated battery. The

second involved a very violent battery upon jail deputy Connelly committed by

Petitioner alone, for which he was convicted. Evidence was that Petitioner struck

14 Dr. Mary Kasper testified in both the 2012 and 2015 ID hearings. Drs. Michael Kindeln and

Michael Gamache testified at the 2015 hearing. Drs. Joel Fried, Alan Waldman, William

Kremper, and Joseph Sesta testified in the 2005 penalty phase hearings. See Doc. 36 at 10–11.

15 To quote the petition: “Ground Four: Trial counsel provided prejudicial ineffective assistance

during the penalty phase of Wright’s capital trial when they failed to challenge evidence argued

in aggravation. The state court’s resolution of Wright’s claim was an unreasonable application

of clearly established federal law, including Strickland v. Washington, 366 U.S. 668 (1984) and

Wiggins v. Smith, 539 U.S. 510 (2003). Further, in many respects, the state court made an

unreasonable determination of facts in light of the state court record.” Doc. 36 at 123.

Connelly, knocking him unconscious, and then struck him repeatedly thereafter.

Connelly was hospitalized, and went on light duty work and then retired, still

receiving mental health counseling in his retirement due to the incident. A37 at

141–48.

At the postconviction phase, Petitioner argued that his lawyers were

ineffective in not mitigating this evidence, primary by calling two inmates as

witnesses. These inmates would have testified that Petitioner was only one of

many in the Cassada attack, and that officer Connelly taunted and provoked

Petitioner prior to the attack. The state circuit court granted Petitioner a hearing on

these arguments, and found no Strickland violation. B16 at 2760–63.

At this postconviction hearing, two inmates testified that Connelly verbally

harassed Petitioner. One inmate testified Connelly started the assault by throwing

the first punch. B10 at 1692–96; B11 at 1813–28.

Petitioner’s trial counsel (handling both the jail battery cases and the instant

case) testified he was aware of the information concerning Connelly allegedly

provoking the assault, but that Connelly’s alleged provocation did not “justify a

guard being beat half to death,” and the two inmates were poor witnesses in the jail

battery trials. According to the lawyer, their “minimal mitigation” did not amount

“to a hill of beans.” B13 at 2147–48, 2171. The trial lawyer had cross-examined

Connelly intently during the aggravated battery trial, and “that had already been

explored” and it was not successful in front of a jury. Doc. 37 at 64–65; B13 at

2144. Before the court at the murder penalty phase, in contrast, the trial counsel

said that “I see very little profit in doing so unless the provocation were very

extreme. And, as I recall, it was not and certainly not—it wasn’t physical

provocation . . . . It was more taunting and, you know, playing games with people.”

Doc. 37 at 65; B13 at 2145. In the penalty phase, these facts were “not of the

degree that I think is mitigating.” B13 at 2147.

The Florida Supreme Court affirmed this ruling. Wright II, 213 So. 3d at

908–09, finding in part:

This claim is meritless. Competent, substantial evidence supports

the postconviction court’s findings.

First, Wright has failed to establish prejudice. None of the evidence

presented during the postconviction evidentiary hearing negates the fact

that Wright had previous convictions for battery. Furthermore, even if

those prior convictions were omitted, the trial court still considered

Wright’s contemporaneous convictions for first-degree murder of the

other victim, carjacking, kidnapping, and robbery with a firearm in

finding the prior violent felony conviction aggravating circumstance.

As the postconviction court noted, the contemporaneous convictions

were arguably more serious than the convictions Wright claims were

not properly rebutted. . . . [T]wo of the three aggravating circumstances

found below are among the weightiest aggravating circumstances. [cite

omitted] In addition, the previously undiscovered evidence concerning

the attack on Cassada would have been merely cumulative to the

concessions elicited from Cassada during penalty phase cross-

examination and the evidence presented by Wright’s trial counsel.

Specifically, evidence was introduced that one other person was

convicted in connection with the attack on Cassada, and Cassada

conceded that perhaps five individuals attacked him and he did not

know whether Wright actually struck him. . . .

Moreover, the record reflects that Wright’s trial counsel made a

tactical decision to not present the testimony of other inmates

concerning Connelly’s alleged provocation of Wright. Wright’s trial

counsel testified that he did not consider the provocation sufficient

justification for Wright to attack Connelly, and even if it were,

presentation of such evidence would not have changed the fact that

Wright was convicted for the attack. Furthermore, Wright’s trial

counsel represented Wright in the case concerning his attack on

Connelly and presented those witnesses in that case. Thus, Wright’s

penalty phase counsel were well aware of the inmates’ testimony when

they elected to not present the inmates as penalty phase witnesses. In

addition, Wright’s lead penalty phase counsel testified that he did not

consider the inmate witnesses to be good witnesses. The decision to not

present rebuttal witnesses concerning the prior conviction for attacking

Connelly was a reasonable tactical decision. Therefore, the

postconviction court’s findings that Wright’s counsel were not

ineffective for failing to present additional witnesses concerning

Wright’s prior battery convictions are supported by competent,

substantial evidence.

Wright II, 213 So. 3d at 908–09. This sound finding is not an unreasonable

application of clearly established federal law. “A petitioner cannot establish that

the outcome of the proceeding would have been different when ‘[t]he new

evidence largely duplicated the mitigation evidence at trial.’” Raulerson, 928 F.3d

at 999 (citing Cullen v. Pinholster, 563 U.S. 170, 200 (2011)).

PETITIONER’S GROUNDS FIVE AND SIX

Grounds Five and Six contend that Petitioner suffered ineffective assistance

of trial counsel by his lawyers’ failure to impeach two jailhouse informant-

witnesses during trial, Wesley Durant and Byron Robinson.16

Concerning Ground Five, witness Durant was an inmate barber at the jail.

He testified Petitioner confessed to the murders during a haircut. A26 at 3721–25.

Durant testified that jail guard Faulkner overheard this confession, told Durant he

needed to contact detectives, and Faulkner “got the ball rolling” with the homicide

detective. A26 at 3728–29. On cross examination, Petitioner’s trial counsel

elicited that Durant had ten felonies including two crimen falsi, had two pending

serious charges, was seeking “help” on his charges; refused to give a taped

statement until he got a deal, and denied seeing news reports about the case. Trial

counsel then elicited that Durant earlier admitted to seeing news reports, and

16 To quote the petition: “Ground Five: Wright received prejudicially ineffective assistance of

counsel when trial counsel failed to impeach state witness Wesley Durant. The state court’s

resolution of Wright’s claim was an unreasonable application of clearly established federal law,

including Strickland v. Washington, 366 U.S. 668 (1984). Further, in many respects, the state

court made an unreasonable determination of facts in light of the state court record.” Doc. 36 at

130.

Ground Six states: “Wright received prejudicial ineffective assistance of counsel when trial

counsel failed to impeach a jailhouse informant who indicated that he was going to commit

perjury. The state court’s resolution of Wright’s claim was an unreasonable application of

clearly established federal law, including Strickland v. Washington, 366 U.S. 668 (1984).

Further, in many respects, the state court made an unreasonable determination of facts in light of

the state court record.” Doc. 36 at 136.

further that Durant was mistaken about Petitioner’s hair style and his knowledge of

the codefendants. A26 at 3735–59.

At the postconviction hearing, jail guard Faulkner testified he had overheard

no haircut confession or other confession by Petitioner. B10 at 1717–19.

Petitioner’s trial counsel testified at the hearing and understood at the time “that

the officer was present and apparently the conversation was reported to him, but he

did not actually hear any admissions made by . . . the defendant. That was my

understanding. Where that came from, I’m not sure.” B13 at 2155. Trial counsel

testified that in calling any other witness beyond the defendant, he always weighed

“losing the sandwich.” That means in Florida parlance losing both opening and

rebuttal closings (i.e. closing both first and last) which former Florida procedure

entitled a defendant to do if he called no witnesses beyond himself in his case.

B13 at 2175.

Also at the postconviction hearing Durant’s nephew, an inmate, testified.

He stated that Durant is untrustworthy and a known “snitch.” B10 at 1747–48.

The nephew spoke with defense lawyers prior to trial but was never called. B10 at

1749–50.

Similarly, Ground Six asserts ineffective assistance due to failure to properly

impeach witness Robinson. Robinson testified that he was a cell mate of

Petitioner, and Petitioner confessed to the murders. A28 at 4201. Towards the end

of the trial, defense counsel informed the court they had recently spoken to several

jail inmates, who claimed to have information about Robinson and another state

witness. A30 at 4502–03. After Petitioner testified in his defense, defense counsel

asked for a court colloquy in which it was discussed with Petitioner whether to call

these impeachment witnesses, and it was noted on the record “that he does not

wish to present any further witnesses, thus, preserving first and last closing[.]”

A30 at 4640–43.

At the postconviction hearing four inmates testified. Doc. 36 at 137. One

testified that Robinson stated an intent to “jump into somebody’s case” to help

himself. Id. at 138. Another testified Robinson was a known “snitch” and he

heard Robinson say he was going to jump into Petitioner’s case and lie. This

witness informed Petitioner about the Robinson statements prior to trial. Two

others testified similarly. B11 at 1802–06. Trial counsel at the postconviction

hearing testified he had no recollection of his tactical reasons for not calling these

inmate witnesses, but did recall some of the inmates were facing very serious

charges and would not talk to the defense, and their testimony was of limited

value. B13 at 2148–51.

The postconviction court found Petitioner failed to establish either

deficiency or prejudice under Strickland concerning these witnesses. Doc. 37 at

92–97. The Florida Supreme Court affirmed, stating:

Competent, substantial evidence supports the postconviction court’s

findings that Wright has not established deficiency with regard to the

decision to not present witnesses to impeach the credibility of Durant

or Robinson. Rather, the record reflects that the decision was the

product of reasonable trial strategy. For instance, trial counsel testified

that he felt “Durant was such an easy target and so incredible” that he

was not going to look for any witnesses to impeach him. The record

further reflects that trial counsel extensively and successfully cross-

examined Durant with the goal of discounting his credibility. In

addition, trial counsel testified that they rejected the presentation of

additional witnesses, with Wright’s approval, to preserve opening and

closing remarks. Moreover, trial counsel testified that he did not

consider inmates to be strong witnesses and the he did not consider their

testimony sufficient to justify sacrificing the retention of opening and

closing remarks.

Wright also did not suffer prejudice. As an initial matter, Wright

testified that he never confessed to either Durant or Robinson.

Therefore, any testimony concerning the credibility of Durant or

Robinson with regard to Wright’s alleged confession would have been

merely cumulative to Wright’s testimony. Wright’s attorneys

extensively cross-examined each of them and even if their testimony

was completely discredited, there were still other non-prisoner

witnesses who testified that Wright confessed to them. Furthermore,

this Court has previously concluded that prejudice was not established

for failure to object to improper guilt phase prosecutorial comments

when the evidence of guilt was strong. [citation omitted] Here, the

remaining evidence of guilt was strong because, among other evidence,

Wright’s fingerprints were found on the car, he possessed the murder

weapon, and blood attributed to one of the victims was found on a shoe

attributed to Wright. Thus, this claim fails.

Wright II, 213 So. 3d at 909–10. This conclusion is based in controlling federal

law, is based in a fair review of the entire record, and is reasonable given the

deference due to trial counsel.

Review of these trial lawyers’ strategic decisions is done in a “highly

deferential” manner, applying “a strong presumption . . . of reasonable professional

assistance.” Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 928 (11th Cir. 2011),

(quoting Strickland, 466 U.S. at 689). Experienced trial lawyers know that

“considering the realities of the courtroom, more is not always better.” Raulerson,

928 F.3d at 998, (quoting Chandler v. United States, 218 F.3d 1305, 1319 (11th

Cir. 2000) (en banc)). Accordingly, Petitioner is not entitled to relief on Grounds

Five and Six.

PETITIONER’S GROUND SEVEN

Petitioner’s Seventh Ground claims that trial counsel was constitutionally

ineffective in failing to object to the prosecutor’s closing argument regarding

Petitioner’s character or propensity to commit violence.17 The reader will recall

the factual setting of the instant case: A weekend crime spree where Petitioner

burgled a house and did a drive-by shooting of local rival Carlos Coney with the

17 Ground Seven states: “Defense counsel’s failure to object to the improper argument regarding

Wright’s propensity to commit violence constituted ineffective assistance of counsel. The state

court’s resolution of Wright’s claim was an unreasonable application of clearly established

federal law, including Strickland v. Washington, 366 U.S. 668 (1984). Further, in many respects,

the state court made an unreasonable determination of facts in light of the state court record.”

Doc. 36 at 141.

stolen pistol, then kidnapped and shot the victims with the pistol, ditching their car

and needing a ride which caused him to engage in a third shooting to carjack a ride

home. Thus the admitted res gestae involved three disparate shootings in a short

period of time, all which tied Petitioner to the main murder weapon.

Petitioner contends that the prosecutor’s closing argument, which was not

objected to due to Strickland-level ineffectiveness, crossed the line from evidence

summation to an argument that Petitioner had a propensity or character for

violence. The prosecutor referred to Petitioner as a ‘hoodlum,” “murderer,” “cold-

blooded,” and a “criminal.” A31 at 4819, 4820, 4823, 4835; A32 at 4839, 4851.

Concerning Petitioner’s testimony about self defense in the drive-by shooting of

the rival, the prosecutor argued, “Well, that’s crap. It doesn’t make any sense. He

stole the gun on Thursday. He used the gun on Friday. He shot a man with it. He

certainly doesn’t have any problems shooting people. He shot Carlos Coney.”

A31 at 4822–23. The Petitioner also complains about other “propensity

arguments” which are set forth below.18

18 The prosecutor argued concerning Petitioner’s self-defense testimony: “When you have a

carjacking and murder like this that’s senseless, it’s an irrational act, and you cannot for the life

of you understand why that happened. You’ll never understand why T.J Wright chose to shoot

Carlos Coney or chose to shoot [the two murder victims]. It’s—it’s an irrational thing to do.”

A31 at 3824. “Carlos Coney and Bennie Joiner both know the guy. He shoots them, a man that

he knows. The man—the police come, he goes, ‘Yeah, who shot you?’ ‘T.J. Wright shot me.’

Okay, It wasn’t a mystery. So how’s he going to refute that? Say he didn’t shoot him? So he

does the next best thing. Well, I thought maybe [Coney] was going for something. You know,

you can’t believe T.J. This guy wants you to believe that somebody that he has an acrimonious

relationship with, they don’t get along, he’s driving by, sees the guy, has a gun in his car, and

The prosecutor’s closing was not objected to. Petitioner raised this objection

first in his direct appeal. The Florida Supreme Court addressed the matter in the

broader context of extrinsic evidence/collateral crimes. Wright I, 19 So. 3d at 295.

Concerning the prosecutor’s closing, the Wright I court addressed Florida state law

evidentiary standards. It stated, “Multiple statements that Wright ‘certain[ly]

doesn’t have any problems shooting people’ lean toward an impermissible

propensity-toward-violence argument.” Id. “[W]hen [the State] cast Wright as a

violent character who acts upon his desire to shoot people, the State abused

[favorable rulings] by inappropriately taking it beyond the edge of propriety in

contradiction of the evidence doctrine of Florida.” Id. The Florida Supreme Court

concluded that the comments were harmless error because no contemporaneous

objection was lodged, and the similarities between the related crimes did not

become a feature of the trial. Id. It concluded the unpreserved comments did not

rise to fundamental error. Id.

Petitioner asserted in his state postconviction motion that failure to object to

these prosecutorial statements in the guilt phase closing arguments was ineffective

tells his buddy turn around and go back, I want to talk to him. Bull crap. He wanted to shoot

him. That’s why he told [the driver] turn around. That’s exactly what he did. He shot him.”

A31 at 4827–28.

Later, when summing evidence related to the Winter Haven/Mendoza carjacking, the

prosecutor stated: “But the second time, when you look at this map, after he dumped [the

victims’] car on Bolender Road and went and carjacked the Mexicans, he comes up to right

there, and that’s when he flees. That’s where he shoots at Mr. Mendoza and the owner of the car

who’s since died in a car accident. That’s where he shoots at him.” A31 at 4829.

assistance of counsel under Strickland. Petitioner received a hearing on the merits

of this argument. Trial counsel testified that, as a general rule, he was reluctant to

object to the prosecutor’s closing argument lest the same objections be visited

upon him. He also did not tactically think it was wise to let the jury think that he is

being obstructive, and “trying to pull the wool over their eyes.” B13 at 2166.

After reviewing the transcripts, trial counsel stated in hindsight, he should have

objected to the comments. B13 at 2166–67. In denying the claim, the

postconviction court noted the state’s evidence included Petitioner’s admissions

describing his involvement, evidence that clearly tied the Petitioner to the murder

weapon, his fingerprints were on the victim’s car, and the victim’s blood was on

his shoes: “The Court finds no reasonable probability that, but for counsel’s

deficiency with regard to the un-objected to comments of the prosecutor that the

result of the proceeding would have been different.” B16 at 2748. After reviewing

the record on this point, the Florida Supreme Court found no prejudice. Wright II,

213 So. 3d at 911.

This state court holding is not contrary to or an unreasonable application of

clearly established federal law. Given the crime spree that was proven here (and

no claim is now made that collateral evidence or extrinsic evidence is grounds for

relief), the closing argument comments were factual, accurate, and a fair summary

of what the jury had heard. There is no basis for relief in this seventh ground.

PETITIONER’S EIGHTH AND NINTH GROUNDS

In Ground Eight, Petitioner contends his death sentence is unconstitutional

under Hurst v. Florida, 136 S. Ct. 616 (2016)19 and in his ninth ground,20

Petitioner claims the Florida death penalty is unconstitutional under Ring v.

Arizona, 536 U.S. 584 (2002). In a nutshell, Hurst and Ring require every fact

supporting a death penalty, i.e. aggravators, etc., to be determined and found by a

jury as fact-finder, not a jury sitting as an advisory jury. In other words, all

predicates and facts to support the death penalty require a jury finding. See Hurst,

136 S. Ct. at 621–22. Hurst, which came after Ring and after Petitioner’s

sentencing, invalidated part of the Florida death penalty statute and required a full

jury finding on every contested factual element of the death penalty.

But Hurst is entirely inapt here because Petitioner elected a strategy to

forego the jury finding at the penalty phase, believing his best chances were with

the bench. Here Petitioner clearly and at length, waived his right to proceed with a

19 This ground states: “Ground Eight: Wright’s death sentence is unconstitutional under Hurst v.

Florida. The state court’s resolution of Wright’s claim was an unreasonable application of

clearly established federal law, including Hurst v. Florida, 136 S. Ct. 616 (2016), Ring v.

Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000). Further, in

many respects, the state court made an unreasonable determination of facts in light of the state

court record.” Doc. 36 at 144.

20 “Ground Nine: The trial court erred in denying Wright’s motions that the Florida’s death

sentencing statutes are unconstitutional under the fifth, sixth, and fourteenth amendments of the

United States constitution as shown in Ring v. Arizona. The state court’s resolution of Wright’s

claim was an unreasonable application of clearly established federal law, including Ring v.

Arizona, 536 U.S. 584 (2002) and Apprendi v. New Jersey, 530 U.S. 466 (2000). Further, in

many respects, the state court made an unreasonable determination of facts in light of the state

court record.” Doc. 36 at 152.

jury at penalty phase. He gave up his right to jury findings at the penalty stage.

Instead, he opted for strategic reasons to have the judge make findings in the

penalty phase. In effect he opted for a bench trial on that subject. The Florida

Supreme Court quite properly found “Wright knowingly, intelligently, and

voluntarily waived his right to a penalty-phase jury . . . . Wright concedes that he

waived his right to a penalty-phase jury, thus barring this claim.” Wright I, 19 So.

3d at 297. Thus Hurst and Ring afford Petitioner nothing.

One cannot fault Petitioner for opting against jury consideration at the

penalty phase. He testified at length and the jury by its verdict chose to disbelieve

every material thing he said. Further, the jury had already found the existence of

two death phase aggravators. By its verdicts of armed kidnapping with a firearm

and robbery with a firearm the jury had already established two aggravating

circumstances: 1) a previous conviction of another capital felony or one involving

the use or threat of violence to a person, and 2) commission of the murder for

pecuniary gain.

Petitioner’s main argument appears to suggest his jury trial waiver at the

penalty phase was improper and not knowing, due to ID that became apparent only

after the penalty phase was well underway. See Doc. 36 at 146–50. Although

contrary to the record as a whole, this argument cites mostly the postconviction

testimony of Petitioner’s defense lawyers. But during this extensive factual waiver

at the time of the penalty phase the defense lawyer stated that Petitioner was lucid,

and did understand, and did give a knowing waiver of the jury at penalty phase.

See A33 at 5092 (“[Petitioner] appears and has appeared for the last several days to

be articulate, bright, [and] aware of what’s going on in his reasoning.”). Both

defense lawyers and the defense investigator stated to the court that they had seen

nothing “which would indicate this to be other than a knowing, intelligent, and

voluntary waiver at this point[.]” Id. at 5093–94. And Petitioner’s reasons for

asking the jury to be discharged before the penalty phase were rational: Petitioner

told his lawyer “[h]e felt they didn’t like him, that they were going to recommend a

death penalty, that they had already made up their minds, they weren’t going to be

fair, and he wanted to waive his right to a jury recommendation.” Doc. 37 at 63.

Because Petitioner waived his right to a jury during the penalty phase, Hurst

and Ring do not provide Petitioner grounds for relief. The state courts’ holdings on

this matter are not contrary to or an unreasonable application of clearly established

federal law. There is no basis for relief on Grounds Eight and Nine.

PETITIONER’S TENTH GROUND

In his final ground Petitioner asserts cumulative error deprived him of a fair

trial, especially in light of the ineffective assistance of counsel he received.21

21 “Ground Ten: Cumulative error deprived Wright of the fundamentally fair trial guaranteed

under the sixth, eighth, and fourteenth amendments. The state court’s resolution of Wright’s

claim was an unreasonable application of clearly established federal law, including Strickland v.

Although this ground does appear to be exhausted, it contains no content in the

amended petition, nor substantive content in the memorandum, beyond matters

already considered and found to be wanting. Doc. 36 at 154–56; Doc. 38 at 73–75.

In his memorandum, Petitioner argues that the Florida Supreme Court, in

reviewing this ground, adopted a “nonsensical standard of proof for cumulative

error claims . . . .” Doc. 38 at 73. The amended petition fails entirely to state

which errors, insufficient in themselves but cumulatively sufficient, exist or fall

under this ground. In the undersigned’s view, this non-list is not surprising.

Petitioner received an energetic, detailed, and vigorous defense, handled with

thoughtfulness and fairness by the Florida state courts. There were no errors

presented that could cumulate or conglomerate to create a grounds for relief under

ground number ten.

The amended petition is without merit and denied. No issue or ground

presented would give reasonable jurists cause to conclude there is any basis for

relief or any portion with merit. Title 28 U.S.C. § 2253(c)(2) permits the Court to

issue a certificate of appealability “only if the applicant has made a substantial

showing of the denial of a constitutional right.” That showing has not been made

here. See generally Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v.

Washington, 366 U.S. 668 (1984). Further, in many respects, the state court made an

unreasonable determination of facts in light of the state court record.” Doc. 36 at 154.

Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Therefore, the undersigned denies a

certificate of appealability, and denies a request to proceed on appeal in forma

pauperis. Petitioner must obtain permission from the court of appeals to proceed

in forma pauperis.

DONE AND ORDERED at Tampa, Florida, on August 19, 2020.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record