Harris v. Secretary, Department of Corrections (Flagler County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MAJOR HARRIS, III

Petitioner,

vs. Case No. 3:18-cv-1075-J-39JRK

SECRETARY, DEPARTMENT

OF CORRECTIONS, et al.,

Respondents.

ORDER

I. INTRODUCTION

Petitioner Major Harris, III, is challenging his state court

(Flagler County) conviction for aggravated battery (firearm),

aggravated assault (firearm), kidnapping (inflict bodily

harm/terrorize victim) through a Petition Under 28 U.S.C. § 2254

for Writ of Habeas Corpus By a Person in State Custody (Petition)

(Doc. 1). Respondents filed a Response to Petition (Response)

(Doc. 11). Thereafter, Petitioner filed his Reply to Respondents’

Response (Doc. 13).1

1 Respondents filed a Notice of Filing Appendix (Doc. 12). The

Court will refer to the Exhibits in the Appendix as “Ex.” Where

provided, the page numbers referenced in this opinion are the Bates

stamp numbers at the bottom of each page of the exhibit.

Otherwise, the page number on the document will be referenced.

For the Petition, Response and Reply, the Court references the

page numbers assigned by the electronic filing system.

II. EVIDENTIARY HEARING

“In a habeas corpus proceeding, the burden is on the

petitioner to establish the need for an evidentiary hearing.”

Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318 (11th

Cir. 2016) (citations omitted), cert. denied, 137 S. Ct. 2245

(2017). To be entitled to an evidentiary hearing, the petitioner

must allege “facts that, if true, would entitle him to relief.”

Martin v. United States, No. 18-12643, 2020 WL 543343, at *5 (11th

Cir. Feb. 4, 2020) (quoting Aron v. United States, 291 F.3d 708,

715 (11th Cir. 2002)). See Chavez v. Sec'y, Fla. Dep't of Corr.,

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

the burden of establishing the need for an evidentiary hearing

with more than speculative and inconcrete claims of need), cert.

denied, 565 U.S. 1120 (2012); Dickson v. Wainwright, 683 F.2d 348,

351 (11th Cir. 1982) (same).

If the allegations are contradicted by the record, patently

frivolous, or based upon unsupported generalizations, the court is

not required to conduct an evidentiary hearing. Martin, 2020 WL

543343, at *5 (quotation and citation omitted). In this case, the

pertinent facts are fully developed in this record or the record

otherwise precludes habeas relief; therefore, the Court can

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"adequately assess [Petitioner's] claim[s] without further factual

development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), cert. denied, 541 U.S. 1034 (2004).

Petitioner has not met his burden as the record refutes the

asserted factual allegations or otherwise precludes habeas relief.

Therefore, the Court finds Petitioner is not entitled to an

evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474

(2007).

III. PETITION

Petitioner presents five grounds for habeas relief: (1) the

ineffective assistance of counsel for failure to adequately

investigate and/or present a defense and/or otherwise subject the

state’s case to meaningful adversarial testing; (2) the

ineffective assistance of counsel for failure to argue and/or

object to the convictions and sentences for aggravated assault and

kidnapping as being in violation of double jeopardy; (3) the

ineffective assistance of counsel for failure to move for

judgment of acquittal and/or for directed verdict based on

inadequate evidence to support the conviction for kidnapping; (4)

the trial court erred by failing to grant Petitioner’s motion for

mistrial based upon cumulative error; and (5) the ineffective

assistance of counsel for denying Petitioner his right to testify.

Petition at 4, 9, 11, 15, 19.

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IV. HABEAS REVIEW

In this case, Petitioner claims he is detained “in violation

of the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2241(c)(3). The Antiterrorism and Effective Death

Penalty Act (AEDPA) governs a state prisoner's federal petition

for habeas corpus and “prescribes a deferential framework for

evaluating issues previously decided in state court[,]” Sealey v.

Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir. 2020)

(citation omitted), limiting a federal court’s authority to award

habeas relief. See 28 U.S.C. § 2254; Shoop v. Hill, 139 S. Ct.

504, 506 (2019) (per curiam) (recognizing AEDPA imposes “important

limitations on the power of federal courts to overturn the

judgments of state courts in criminal cases"). Recently, the

Eleventh Circuit opined:

[federal courts] are prohibited from granting

a state prisoner’s habeas corpus petition

unless the relevant state court decision on

the merits of the petitioner’s claim ‘was

contrary to, or involved an unreasonable

application of, clearly established Federal

law, as determined by the Supreme Court of the

United States,’ or (2) ‘was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.’

James v. Warden, Holman Correctional Facility, 957 F.3d 1184, 1190

(11th Cir. 2020) (quoting 28 U.S.C. § 2254(d)(1)-(2)).

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The Eleventh Circuit explained the analysis which must take

place pursuant to AEDPA:

A decision is “contrary to” clearly

established federal law if the state court

applied a rule that contradicts governing

Supreme Court precedent, or if it reached a

different conclusion than the Supreme Court

did in a case involving materially

indistinguishable facts. Williams v. Taylor,

529 U.S. 362, 412-13, 120 S. Ct. 1495, 146

L.Ed.2d 389 (2000). A state court decision

involves an “unreasonable application” of

clearly established federal law if the court

identifies the correct legal principle but

applies it unreasonably to the facts before

it. Id. “The question under AEDPA is not

whether a federal court believes the state

court’s determination was incorrect but

whether that determination was unreasonable –

a substantially higher threshold.” Schriro

v. Landrigan, 550 U.S. 465, 127 S. Ct. 1933,

167 L.Ed.2d 836 (2007).

James, 957 F.3d at 1190-91.

A state court's finding of fact, whether a state trial court

or appellate court, is entitled to a presumption of correctness

under 28 U.S.C. § 2254(e)(1). “The state court’s factual

determinations are presumed correct, absent clear and convincing

evidence to the contrary.” Sealey, 954 F.3d at 1354 (quoting 28

U.S.C. § 2254(e)(1)). This presumption of correctness, however,

applies only to findings of fact, not mixed determinations of law

and fact. Brannan v. GDCP Warden, 541 F. App'x 901, 903-904 (11th

Cir. 2013) (per curiam) (recognizing the distinction between a

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pure question of fact from a mixed question of law and fact), cert.

denied, 573 U.S. 906 (2014). Furthermore, the second prong of §

2254(d), requires this Court to “accord the state trial court

[determination of the facts] substantial deference.” Dallas v.

Warden, 964 F.3d 1285, 1302 (11th Cir. 2020) (quoting Brumfield v.

Cain, 576 U.S. 305, 314 (2015)). Thus, this Court may not

supersede a trial court’s determination simply because reasonable

minds may disagree about the finding. Id. (quotation and citation

omitted).

Finally, where there has been one reasoned state court

judgment rejecting a federal claim followed by an unexplained order

upholding that judgement, federal habeas courts employ a "look

through" presumption: "the federal court should 'look through' the

unexplained decision to the last related state-court decision that

does provide a relevant rationale. It should then presume that the

unexplained decision adopted the same reasoning." Wilson v.

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

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner’s claims of ineffective assistance of counsel “are

governed by the familiar two-part Strickland[v. Washington, 466

U.S. 668 (1984)] standard.” Knight v. Fla. Dep’t of Corr., 958

F.3d 1035, 1038 (11th Cir. 2020). In order for Petitioner to

prevail on a claim of ineffective assistance of trial counsel, he

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must satisfy the two-pronged Strickland test, requiring that he

show both deficient performance (counsel's representation fell

below an objective standard of reasonableness) and prejudice

(there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different). Id. (quotation and citation omitted). See

Brewster v. Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019)

(reviewing court may begin with either component).

VI. GROUND ONE

GROUND ONE: the ineffective assistance of

counsel for failure to adequately investigate

and/or present a defense and/or otherwise

subject the state’s case to meaningful

adversarial testing.

In a nutshell, Petitioner complains that “counsel made no

pre-trial motions to dismiss and/or suppress; failed to discuss

any possible trial tactics or strategies with Harris; made no

opening statements at trial; made no motions for judgment of

acquittal; and relied only on the State’s version of events.”

Petition at 5. Upon review of the state court record, Petitioner

exhausted this claim of ineffective assistance of counsel by

raising it in his Rule 3.850 motion. Ex. I-1 at 5-13. The trial

court, referencing the Strickland standard, Ex. I-1 at 60, noted

this ground “presents factual issues relating to trial counsel’s

strategy” and determined Petitioner was entitled to an evidentiary

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hearing. Id. at 61. The court conducted an evidentiary hearing.

Ex. I-2. At the conclusion of the hearing, the court, ore tenus,

announced its ruling that it was going to deny post-conviction

relief as to this claim. Id. at 64. Finding counsel provided “a

generous and excellent defense,” the court concluded that counsel

did not deviate from professional standards nor was he ineffective.

Id. Noting that “every inconsistency” was brought to the jury’s

attention, the court said counsel gave Petitioner “a great

defense.” Id.

The court explained there were no suppressible issues;

therefore, as there was not “a grantable motion of suppression[,]”

counsel did not have a good faith basis to go forward with a motion

to suppress. Id. at 64-65. The court further found it was

Petitioner’s decision not to testify,2 “[a]nd if the question is

2 This claim, although not raised in the Rule 3.850 motion, was

presented at the evidentiary hearing, vetted and addressed by the

trial court. The trial court found “a full colloquy as to whether

or not [Petitioner] was going to testify” took place. Ex. I-2 at

65. Upon a thorough review of the trial record, there is clear

and convincing evidence that such a colloquy did not take place.

After the trial on the counts for aggravated battery, aggravated

assault, and kidnapping, the trial court did address other counts

(possession of a firearm by a convicted felon, two counts of child

abuse, and failure to register as a sexual offender) and iterated

Petitioner’s rights, including the right to remain silent. (Ex.

B at 232-33, Ex. C at 20-21). There was, however, evidentiary

support for the trial court’s finding that it was Petitioner’s

ultimate decision not to testify at trial based on counsel’s sound

advice.

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that his attorney advised him not to, with six, seven felonies, …,

“that advice was good advice[.]” Id. at 65. The court found the

decision not to give an opening statement was a strategic one, and

“a good strategy in a case like this” where counsel did not want

to be locked-in. Id. Further, the court found, based on a review

of the record, the state satisfied “every single element[;]”

therefore, the trial court could not have granted a motion for

judgment of acquittal, and it would have been a pointless and

meritless motion had counsel presented one. Id. at 65-66.

Finally, the court found there was adequate cross-examination of

the victim. Id. at 66. Concluding there was no deficiency in the

level of professional services provided by counsel, the court found

Petitioner was not prejudiced “in any way.” Id.

In its written order, the court reiterated its findings and

found defense counsel’s testimony “to be reliable and credible.”

Ex. I-1 at 128. Since the state court made this credibility

determination after conducting an evidentiary hearing and

observing counsel’s testimony, which “is the province and function

of the state courts,” this Court will not re-address the state

court’s determination as this Court has no license to do so.

Knight, 958 F.3d at 1044 (citing Consalvo v. Sec’y for Dep’t of

Corr., 664 F.3d 842, 845 (11th Cir. 2011)). Indeed, this Court

must defer to the state court’s findings of fact, 28 U.S.C. § 2254

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(e)(1), including applying deference to the trial court’s

credibility determination that resolves conflicting testimony.

Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998), cert.

denied, 526 U.S. 1047 (1999).

Of note, the trial court also found defense counsel “has

extensive experience as a public defender.”3 Ex. I-1 at 128. It

is quite significant that Petitioner had the benefit of experienced

counsel: “when courts are examining the performance of an

experienced trial counsel, the presumption that his conduct was

reasonable is even stronger.” Cummings v. Sec’y for Dep’t of

Corr., 588 F.3d 1331, 1364 (11th Cir. 2009) (quoting Chandler v.

United States, 218 F.3d 1305, 1316 (11th Cir. 2000)), cert. denied,

562 U.S. 872 (2010). Here, defense counsel said his trial strategy

was to attack the credibility of the victim. Ex. I-2 at 53. The

trial court recognized this was counsel’s strategy, found counsel

ably performed, and found neither deficient performance nor

prejudice. Ex. I-1 at 129.

As the state court reasonably determined the facts and

reasonably applied federal law to those facts in rejecting the

3 The record shows the trial court appointed the Office of Criminal

Conflict and Civil Regional Counsel for the Fifth District. Ex.

A. Thereafter, Brett C. Kocijan, Assistant Regional Conflict

Counsel, represented Petitioner.

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claim of ineffective assistance of counsel,4 Petitioner is not

entitled to habeas relief. The Fifth District Court of Appeal

(5th DCA) per curiam affirmed the decision of the trial court.

Ex. M. The state court’s ruling denying relief is entitled to

AEDPA deference as its decision is not inconsistent with United

States Supreme Court precedent, and the adjudication of this claim

is not contrary to or an unreasonable application of United States

Supreme Court law or based on an unreasonable determination of the

facts. Petitioner is not entitled to relief on his claim of

ineffective assistance of counsel raised in ground one of the

Petition.

4 There is one exception: the trial court’s finding of fact that

it performed a colloquy prior to Petitioner electing not to take

the stand. The record demonstrates that particular finding is in

error as the colloquy did not take place. However, the trial

court’s mistaken belief and finding that the colloquy took place

is not dispositive. At the evidentiary hearing, Petitioner

testified he had a criminal record and his counsel advised him not

to testify. Ex. I-2 at 12, 26. Mr. Kocijan testified he advised

against Petitioner testifying because of Petitioner’s criminal

history, although he told Petitioner to prepare to take the stand.

Id. at 52. Mr. Kocijan testified he gave Petitioner his opinion

and Petitioner decided not to take the stand. Id. at 52-53.

Importantly, the trial court found counsel’s advice, advising

Petitioner not to take the stand, with six to seven felonies, was

great advice in a “he said she said case.” Id. at 65. Mr. Kocijan

also testified that he did not think it was in Petitioner’s best

interest to go to trial, id. at 53, but this expressed opinion did

not deter Petitioner from making the decision to go to trial. The

court found more credible counsel’s testimony that Petitioner

decided not to take the stand based on counsel’s “competent advice

. . . due to Defendant’s six or seven felony convictions.” Ex.

I-1 at 129.

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VII. GROUND TWO

GROUND TWO: the ineffective assistance of

counsel for failure to argue and/or object to

the convictions and sentences for aggravated

assault and kidnapping as being in violation

of double jeopardy.

Petitioner exhausted this claim of ineffective assistance of

trial counsel in ground three of his postconviction motion. Ex.

I-1 at 16-19. After recognizing the Strickland two-pronged

standard of review, id. at 60, the trial court summarily rejected

this claim. Id. at 61-62. The court held:

In Wilkens the Fifth District Court of

Appeal held the Defendant’s rights against

double jeopardy were not violated by his

conviction on counts of kidnapping and

aggravated assault, which were separate

offenses, each requiring proof of an element

that the other did not. Wilkins v. State, 543

So. 2d 800 (Fla. 5th DCA 1989). Similarly,

in this cause, the kidnapping and aggravated

assault offenses each contain different

elements, and both offenses were established

by sufficient and separate proofs at trial.

Ex. I-1 at 62.

The record shows the trial court charged the jury:

To prove the crime of aggravated assault,

the State must prove the following four

elements beyond a reasonable doubt:

The first three elements define assault.

1. Mr. Harris intentionally and

unlawfully threatened either by word or act to

do violence to Miss Powell.

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2. At the time Mr. Harris appeared to

have the ability to carry out that threat.

3. The act of Mr. Harris created in the

mind of Miss Powell a well-founded fear that

the violence was about to take place.

4. The assault was made with a deadly

weapon.

Ex. B at 207. The court then defined “deadly weapon.” Id.

The court also instructed:

To prove the crime of kidnapping, the

State must prove the following three elements

beyond a reasonable doubt:

1. Mr. Harris forcibly or by threat

confined or imprisoned Miss Powell against her

will.

2. Mr. Harris had no lawful authority

to do so.

3. Mr. Harris acted with intent to

inflict bodily harm upon or to terrorize the

victim or another person.

Id. at 209.

The Double Jeopardy Clause “provides that no person shall ‘be

subject for the same offense to be twice put in jeopardy of life

or limb.’ U.S. Const., Amdt. 5.” United States v. Dixon, 509

U.S. 688, 695-96 (1993). The Clause protects against a second

prosecution for the same offense after acquittal, against a second

prosecution for the same offense after conviction, and it protects

against multiple punishments for the same offense. Garrett v.

13

United States, 471 U.S. 773, 777-78 (1985); Brown v. Ohio, 432

U.S. 161 (1977) (same).

Of import, in Wilkins, the 5th DCA found that “kidnapping and

aggravated assault are separate offenses, each requiring proof of

an element that the other does not.” Wilkins, 543 So. 2d at 801.

Upon review, Petitioner was not prosecuted for the same offense

after acquittal, or prosecuted for the same offense after

conviction, and he was not given multiple punishments for the same

offenses, as both offenses were established by sufficient and

separate proofs at trial. Therefore, there was no double jeopardy

violation.

The trial court properly utilized the Strickland two-pronged

standard when addressing the claim of ineffective assistance of

trial counsel. The court concluded counsel was not ineffective

for failing to make a non-meritorious objection or argument based

on double jeopardy grounds.5 Ex. I-1 at 61-62, 64. The 5th DCA

affirmed. Ex. M.

5 The state, in its Response to Defendant’s Motion for Post-

Conviction Relief, argued the holding in James v. State, 386 So.

2d 890 (Fla. 1st DCA 1980) (per curiam) is distinguishable, noting

the proof at trial was different from that in James (proof at trial

shows James confined the victim by threatening the victim with a

loaded shotgun, and aggravated assault constitutes a permissive

lesser-included offense of kidnapping with a firearm where the

information charging kidnapping contains all of the essential

elements of aggravated assault). Ex. I-1 at 47-48. In James, 386

So. 2d at 891, both charges rested on identical elements of proof

14

In conclusion, the trial court rejected Petitioner’s claim of

ineffective assistance of counsel for failure to argue and/or

object to the conviction and sentence for aggravated assault and

kidnapping on double jeopardy grounds. The record shows the 5th

DCA affirmed. Under Wilson, this Court assumes the 5th DCA adopted

the reasoning of the trial court. There has been no attempt to

rebut this presumption. After due consideration, the Court finds

that state court did not unreasonably apply clearly established

federal law, as determined by the United States Supreme Court.

Consequently, AEDPA deference is warranted. Thus, the Court

concludes that the state court’s adjudication of this claim is not

contrary to or an unreasonable application of federal law or based

on an unreasonable determination of the facts. Ground two is due

to be denied as Petitioner is not entitled to habeas relief based

on his claim of ineffective assistance of counsel raised in ground

two.

VIII. GROUND THREE

GROUND THREE: the ineffective assistance of

counsel for failure to move for judgment of

acquittal and/or for directed verdict based on

for conviction. See Ortiz-Medina v. State, 126 So. 3d 1183 (4th

DCA 2012) (per curiam) (proof for conviction required identical

elements of proof). In Petitioner’s case, the state courts found

otherwise, rejecting Petitioner’s argument that the proof was

identical for these two counts and denying Petitioner’s claim of

ineffective assistance of counsel for failure to raise a double

jeopardy claim.

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inadequate evidence to support the conviction

for kidnapping.

Petitioner exhausted this claim of ineffective assistance of

counsel by raising it in ground five of his Rule 3.850 motion.

Ex. I-1 at 27-31. The 5th DCA affirmed per curiam. Ex. M.

As noted previously, the trial court utilized the two-pronged

Strickland test when addressing Petitioner’s claims of ineffective

assistance of counsel. Of import, the trial court found the record

demonstrated that Petitioner’s actions “went well beyond ‘merely

restraining’ the victim in this case.” Ex. I-1 at 63. The court

recognized that the victim testified to a very long ordeal, which

continued through the night and ended the next day. Id. The

court found this was not a case appropriate for a motion for a

judgment of acquittal. Id. at 64.

The decision not to move for a judgment of acquittal and/or

a directed verdict was not so patently unreasonable that no

competent attorney would have made that decision. Furthermore,

the representation by defense counsel was not so filled with

serious errors that defense counsel was not functioning as counsel

guaranteed by the Sixth Amendment.

The Court is not convinced defense counsel’s performance fell

below an objective standard of reasonableness. Indeed, counsel’s

actions were well within the scope of permissible performance.

16

The standard is reasonable performance, not perfection. Brewster,

913 F.3d at 1056 (citation omitted). In addition, Petitioner has

failed to show resulting prejudice, the second prong of the

Strickland standard. There is no reasonable probability that the

outcome of the case would have been different if trial counsel had

taken the action suggested by Petitioner of moving for judgment of

acquittal and/or directed verdict on the kidnapping count.

The state court’s determination is consistent with federal

precedent. The Court concludes AEDPA deference is warranted.

Thus, the Court finds the state court’s adjudication of this claim

is not contrary to or an unreasonable application of Strickland or

based on an unreasonable determination of the facts. As such,

this claim is due to be denied.

IX. GROUND FOUR

GROUND FOUR: the trial court erred by failing

to grant Petitioner’s motion for mistrial

based upon cumulative error.

Petitioner exhausted this claim of trial court error by

raising it on direct appeal. Ex. D. The 5th DCA per curiam

affirmed. Ex. G. The mandate issued on March 7, 2014. Ex. H.

The record shows two instances during the trial in which trial

counsel objected and moved for mistrial based on statements made

by the victim, Lakisha Powell. When Ms. Powell was on the stand,

she testified that Petitioner said, “[y]ou’re going to have me

17

locked up, and this is a PBL. He kept saying PBL.”6 Ex. B at 48.

Defense counsel objected and moved for a mistrial. Id. at 48-49.

The trial court denied the motion for mistrial. Id. at 50. The

trial court admonished the witness not to mention anything about

Petitioner being in trouble before or having been convicted of any

crimes or having committed any crimes, unless the court gives Ms.

Powell permission to do so. Id.

Later in her testimony, Ms. Powell mentioned that Brandon,

her sister’s boyfriend, had been incarcerated with Petitioner.

Id. at 62. Again, defense counsel objected. Id. He renewed his

motion for mistrial, asserting this was substantially prejudicial

to the defendant. Id. The court denied the motion but offered

to give a curative instruction. Id. at 64. Defense counsel

rejected the offer of a curative instruction. Id. The court once

again admonished the witness to be careful and not speak of the

defendant being in trouble before. Id.

Petitioner raised the claim of trial court error on direct

appeal, but it is not a claim of federal constitutional dimension.

See Response at 12-13. Thus, Respondents ask the Court to dismiss

the claim with prejudice. Id. at 13.

6 Punishable by life (PBL).

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In order to prevail, Petitioner must show he is detained “in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3). Only in cases of federal

constitutional error will a federal writ of habeas corpus be

available. Jones v. Goodwin, 982 F.2d 464, 471 (11th Cir. 1993).

As habeas relief does not lie for errors of state law, Petitioner

is not entitled to relief on ground four. There has been no breach

of a federal constitutional mandate; therefore, this Court is bound

by the Florida court’s interpretation of its own laws. McCoy v.

Newsome, 953 F.2d 1252, 1264 (11th Cir. 1992) (per curiam), cert.

denied, 504 U.S. 944 (1992).

Since ground four (the trial court erred in denying two

motions for mistrial) presents an issue that is not cognizable in

this habeas proceeding, there is no basis for federal habeas relief

and ground four is due to be denied. “Federal habeas relief is

available to correct only constitutional injury.” Gillett v.

Crews, No. 3:12cv445/LC/CJK, 2014 WL 3720955, at *6 (N.D. Fla.

July 28, 2014) (citing Swarthout v. Cooke, 562 U.S. 216, 219

(2011)) (other citations omitted). As such, ground four is due

to be denied.

X. GROUND FIVE

GROUND FIVE: the ineffective assistance of

counsel for denying Petitioner his right to

testify.

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Although Petitioner did not raise this claim in his Rule 3.850

motion, he did present the claim at the post-conviction evidentiary

hearing. The trial court vetted the claim and addressed it.

Petitioner appealed the denial of the motion but failed to address

this claim in the appeal and reply briefs. Since he received an

evidentiary hearing, he was required to brief the matter. Rule

9.141(b)(3)(C) (Grant or Denial of Motion after an Evidentiary

Hearing was Held on 1 or More Claims), Fla. R. App. P. Thus, his

claim was not sufficiently presented for review. Marshall v.

State, 854 So. 2d 1235, 1252 (Fla. 2003) (per curiam). Notably,

Rule 9.141(b)(2) (Summary Grant or Denial of All Claims Raised in

a Motion Without Evidentiary Hearing), Fla. R. App. P., requiring

no briefing, “applies only when the trial court holds no

evidentiary hearing at all.” Cuomo v. State, 257 So. 3d 584 (Fla.

1st DCA 2018) (footnote omitted).

Here, Petitioner failed to fairly present the issue to the

state’s highest court. Picard v. Connor, 404 U.S. 270, 275 (1971).

Therefore, Petitioner failed to invoke one complete round of the

state’s established appellate review process by failing to include

this ground in his appellate briefs before the 5th DCA after

receiving an evidentiary hearing in the state court. As such,

ground five is procedurally defaulted.

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Petitioner has failed to show cause and prejudice or that a

fundamental miscarriage of justice will result if the Court does

not reach the merits of ground five. Accordingly, the Court finds

ground five is procedurally barred in federal habeas.

Therefore, it is now

ORDERED AND ADJUDGED:

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

DENIED.

2. This action is DISMISSED WITH PREJUDICE.

3. The Clerk shall enter judgment accordingly and close

this case.

4. If Petitioner appeals the denial of his Petition for

Writ of Habeas Corpus (Doc. 1), the Court denies a certificate of

appealability. 7 Because this Court has determined that a

certificate of appealability is not warranted, the Clerk shall

7 This Court should issue a certificate of appealability only if a

petitioner makes "a substantial showing of the denial of a

constitutional right." 28 U.S.C. § 2253(c)(2). To make this

substantial showing, Petitioner "must demonstrate that reasonable

jurists would find the district court's assessment of the

constitutional claims debatable or wrong," Tennard v. Dretke, 542

U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)), or that "the issues presented were 'adequate to deserve

encouragement to proceed further,'" Miller-El v. Cockrell, 537

U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)). Upon due consideration, this Court will

deny a certificate of appealability.

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terminate from the pending motions report any motion to proceed on

appeal as a pauper that may be filed in this case. Such

termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida, this lst day of

October, 2020.

4 De

af J. DAVIS

United States District Judge

sa 9/25

Cc:

Major Harris, III

Counsel of Record

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