Ingram v. Secretary, Department of Corrections

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDUART

TAMPA DIVISION

WALTER INGRAM,

Applicant,

v. CASE NO. 8:16-cv-2406-T-23AAS

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Ingram applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)

and challenges his conviction for first-degree premeditated murder, for which Ingram

is imprisoned for life. Numerous exhibits (“Respondent’s Exhibit ___”) support the

response. (Doc. 9) The respondent both admits the application’s timeliness (Doc. 9

at 14–15) and argues that some grounds are not fully exhausted and, as a

consequence, are procedurally defaulted. (Doc. 9 at 15–20)

I. BACKGROUND1

Ingram lived with Hope Frazier whom he considered his “god-sister.” Frazier

was dating a neighbor named Glenn Dilworth. The couple argued often and Ingram

tried to mediate. On October 1, 2009, Ingram saw Frazier and Dilworth arguing and

tried to separate them. Dilworth left but later returned and asked Ingram to come

1 This summary of the facts derives from Ingram’s brief on direct appeal. (Respondent’s

Exhibit D at 4–9)

outside to talk. When Ingram went outside, Dilworth pointed a gun at him and,

using a racial epithet, called to him. Ingram — upset — went back inside and told

others what happened. Ingram said that he was tired of Dilworth and intended to

kill him, but no one took Ingram seriously.

Dilworth again called to Ingram to come outside. Ingram tried to ignore

Dilworth, but eventually Ingram went outside with a knife and the cardboard tube

from an empty roll of paper towels. Ingram first hit Dilworth with the cardboard

tube. When Ingram thought Dilworth grabbed for his gun, Ingram stabbed him with

the knife, which killed him. Ingram retreated to his home and left.

Ingram was arrested and charged with first-degree murder. At his trial Ingram

testified that he stabbed Dilworth in self-defense. The jury found Ingram guilty as

charged, and the judge sentenced Ingram to the mandatory term of life

imprisonment.

II. COGNIZABILITY, EXHAUSTION, AND PROCEDURAL DEFAULT

The respondent argues that Ground One, Ground Two in part2, and Ground

Six are procedurally barred from federal review because either Ingram failed to fully

exhaust his available state court remedies or the state court dismissed the federal

claims as facially insufficient. An applicant must present each claim to a state court

before raising the claim in federal court. “[E]xhaustion of state remedies requires

that petitioners ‘fairly presen[t]’ federal claims to the state courts in order to give the

2 The respondent mislabels this ground as Ground Three. (Doc. 9 at 15)

State the ‘opportunity to pass upon and correct’ alleged violations of its prisoners’

federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor,

404 U.S. 270, 275 (1971)). Accord Rose v. Lundy, 455 U.S. 509, 518–19 (1982) (“A

rigorously enforced total exhaustion rule will encourage state prisoners to seek full

relief first from the state courts, thus giving those courts the first opportunity to

review all claims of constitutional error.”). “To provide the State with the necessary

‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state

court (including a state supreme court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27,

29 (2004) (citing Duncan, 513 U.S. at 365–66).

Ground One:

Ingram asserts that the trial court erred by denying his motion for mistrial

based on the prosecutor’s violation of a pretrial order. (Doc. 1 at 4) Ingram

presented this claim on direct appeal as an abuse of discretion under state law and

not as the violation of a federally protected right. (Respondent’s Exhibit D at

642–45) The failure to alert the state appellate court that the trial court allegedly

violated a federally protected right fails to satisfy the exhaustion requirement. As

Reese explains, 541 U.S. at 32, an applicant must alert the state court that he raises a

federal law claim and not just a state law claim:

A litigant wishing to raise a federal issue can easily indicate the

federal law basis for his claim in a state-court petition or brief,

for example, by citing in conjunction with the claim the federal

source of law on which he relies or a case deciding such a claim

on federal grounds, or by simply labeling the claim “federal.”

As a consequence, “[i]t is not enough that all the facts necessary to support

the federal claim were before the state courts, or that a somewhat similar state-law

claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982). Kelley v. Sec’y, Dep’t

Corrs., 377 F.3d 1317, 1345 (11th Cir. 2004) (“The exhaustion doctrine requires a

habeas applicant to do more than scatter some makeshift needles in the haystack of

the state court record.”) (citations omitted); Upshaw v. Singletary, 70 F.3d 576, 578

(11th Cir. 1995) (“[T]he applicant must have fairly apprised the highest court of his

state with the appropriate jurisdiction of the federal rights which allegedly were

violated.”). An applicant must present to the state court the same claim presented to

the federal court. Picard v. Connor, 404 U.S. at 275 (“[W]e have required a state

prisoner to present the state courts with the same claim he urges upon the federal

courts.”). “Mere similarity of claims is insufficient to exhaust.” Duncan,

513 U.S. at 366.

Moreover, even if he had “fairly presented” his claim to the state courts, the

claim fails to assert the violation of a federally protected right. Ingram asserts that

the trial court erred by denying the mistrial motion and does not contend that the

ruling violated due process or any other federal law. (Doc. 1 at 4) The ruling on the

mistrial motion was based on Florida’s mistrial standard and a federal habeas court

does not review a state law ruling by a state court. Estelle v. McGuire, 502 U.S. 62,

67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine

state-court determinations on state-law questions.”); Pulley v. Harris, 465 U.S. 37, 41

(1984) (“Under 28 U.S.C. § 2241, a writ of habeas corpus disturbing a state-court

judgment may issue only if it is found that a prisoner is in custody ‘in violation of the

Constitution or laws or treaties of the United States.’”). See also Dessaure v. State, 891

So. 2d 455, 464–65 (Fla. 2004) (“An order granting mistrial is required only when

the error upon which it rests is so prejudicial as to vitiate the entire trial, making a

mistrial necessary to ensure that the defendant receives a fair trial.”). The state

courts rejected the state law claim, and the rejection receives deference in a federal

court. (Respondent’s Exhibit B at 197–200, Exhibit C at 259–60, 436, and Exhibit D

at 670). Agan v. Vaughn, 119 F.3d 1538 (11th Cir. 1997) (“[S]tate courts are the final

arbiters of state law, and federal habeas courts should not second-guess them on such

matters.”).

Ground Two in Part and Ground Six:

The respondent argues that Ground Two in part and Ground Six are

procedurally defaulted because the state court dismissed the claims as facially

insufficient. (Doc. 9 at 18) A state court’s dismissal of a claim for facial

insufficiency is an adjudication on the merits owed deference under Section 2254(d)

and not, as the respondent contends, a dismissal on state procedural grounds.

Boyd v. Comm., Ala. Dep’t Corrs., 697 F.3d 1320, 1331 (11th Cir. 2012); Borden v. Allen,

646 F.3d 785, 812–15 (11th Cir. 2011).

* * * *

The failure to properly exhaust each available state court remedy causes a

procedural default of the unexhausted claim. O’Sullivan v. Boerckel, 526 U.S. 838, 847

(1999) (“Boerckel’s failure to present three of his federal habeas claims to the Illinois

Supreme Court in a timely fashion has resulted in a procedural default of those

claims.”); Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (“[W]hen it is

obvious that the unexhausted claims would be procedurally barred in state court due

to a state-law procedural default, we can forego the needless ‘judicial ping-pong’ and

just treat those claims now barred by state law as no basis for federal habeas relief.”).

As determined above, Ingram procedurally defaulted Ground One by not

“federalizing” the ground in state court; as a consequence, the ground is barred from

federal review absent a showing of “actual cause and prejudice” or “manifest

injustice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); Murray v. Carrier,

477 U.S. 478, 496 (1986). The basis for “cause” must ordinarily reside in something

external to the defense. Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995).

To show “prejudice,” the applicant must show “not merely that the errors at his trial

created the possibility of prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional dimensions.”

Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991) (italics original) (quoting United

States v. Frady, 456 U.S. 152, 170 (1982)).

To meet the fundamental miscarriage of justice exception, Ingram must show

constitutional error coupled with “new reliable evidence — whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence

— that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). This

exception is not available unless “petitioner shows, as a factual matter, that he did

not commit the crime of conviction.” Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)

(denying a certificate of probable cause).

Ingram establishes neither “cause and prejudice” nor a “fundamental

miscarriage of justice.” Therefore, Ground One is procedurally barred from federal

review and not entitled to a determination on the merits. Grounds Two and Six are

entitled to a review on the merits.

III. STANDARD OF REVIEW

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

governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210

(11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a

highly deferential standard for federal court review of a state court adjudication,

states in pertinent part:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not

be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim —

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

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.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains this deferential

standard:

federal habeas court to grant a state prisoner’s application for a

writ of habeas corpus with respect to claims adjudicated on the

merits in state court. Under § 2254(d)(1), the writ may issue

only if one of the following two conditions is satisfied — the

state court adjudication resulted in a decision that (1) “was

contrary to . . . clearly established Federal Law, as determined

by the Supreme Court of the United States” or (2) “involved an

unreasonable application of . . . clearly established Federal law,

as determined by the Supreme Court of the United States.”

Under the “contrary to” clause, a federal habeas court may

grant the writ if the state court arrives at a conclusion opposite

to that reached by this Court on a question of law or if the state

court decides a case differently than this Court has on a set of

materially indistinguishable facts. Under the “unreasonable

application” clause, a federal habeas court may grant the writ if

the state court identifies the correct governing legal principle

from this Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable, . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition for

obtaining habeas corpus from a federal court, a state prisoner must show that the

state court’s ruling on the claim being presented in federal court was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 103 (2011). White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical

point is that relief is available under § 2254(d)(1)’s unreasonable-application clause if,

and only if, it is so obvious that a clearly established rule applies to a given set of

facts that there could be no ‘fairminded disagreement’ on the question . . . .”) (citing

Richter, 562 U.S. at 102–03); Woods v. Donald, 575 U.S. 312, 316 (2015) (“And an

‘unreasonable application of ’ those holdings must be objectively unreasonable, not

merely wrong; even clear error will not suffice.”) (citing Woodall, 572 U.S. at 419).

Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective

reasonableness, not the correctness per se, of the state court decision that we are to

decide.”). The phrase “clearly established Federal law” encompasses only the

holdings of the United States Supreme Court “as of the time of the relevant

state-court decision.” Williams v. Taylor, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “The [AEDPA]

modified a federal habeas court’s role in reviewing state prisoner applications in

order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are

given effect to the extent possible under law.” Bell v. Cone, 535 U.S. at 694.

A federal court must afford due deference to a state court’s decision. “AEDPA

prevents defendants — and federal courts — from using federal habeas corpus review

as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett,

559 U.S. 766, 779 (2010); Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a

‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating state-court

rulings, which demands that state-court decisions be given the benefit of the

doubt’ . . . .”) (citations omitted).

When the last state court to decide a federal claim explains the decision in a

reasoned opinion, a federal habeas court reviews the specific reasons stated in the

opinion and defers if the explanation is reasonable. Wilson v. Sellers, 138 S. Ct. 1188,

1192 (2018) (“[A] federal habeas court simply reviews the specific reasons given by

the state court and defers to those reasons if they are reasonable.”). When the

relevant state-court decision is not accompanied with reasons for the decision, the

federal court “should ‘look through’ the unexplained decision to the last related state-

court decision that does provide a relevant rationale [and] presume that the

unexplained decision adopted the same reasoning.” Wilson, 138 S. Ct. at 1192. The

State may contest “the presumption by showing that the unexplained affirmance

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

decision . . . .” Wilson, 138 S. Ct. at 1192.

In a per curiam decision without a written opinion the state appellate court on

direct appeal affirmed Ingram’s conviction and sentence. (Respondent’s Exhibit D

at 670) Similarly, in other per curiam decisions without a written opinion the state

appellate court both affirmed the denial of Ingram’s Rule 3.850 motion for

post-conviction relief and denied his petition under Rule 9.141(d), Florida Rules

of Appellate Procedure, alleging ineffective assistance of appellate counsel.

(Respondent’s Exhibit F at 786 and Exhibit G at 227) A state appellate court’s

per curiam decision warrants deference under Section 2254(d)(1) because “the

summary nature of a state court’s decision does not lessen the deference that it is

due.” Wright v. Moore, 278 F.3d 1245, 1254, reh’g and reh’g en banc denied, 278 F.3d

1245 (11th Cir. 2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003);

Richter, 562 U.S. at 100 (“When a federal claim has been presented to a state court

and the state court has denied relief, it may be presumed that the state court

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

procedural principles to the contrary.”); Bishop v. Warden, GDCP, 726 F.3d 1243,

1255–56 (11th Cir. 2013) (describing the difference between an “opinion” or

“analysis” and a “decision” or “ruling” and explaining that deference is accorded

the state court’s “decision” or “ruling” even absent an “opinion” or “analysis”).

As Pinholster explains, 563 U.S. at 181–82, review of the state court decision is

limited to the state court record:

We now hold that review under § 2254(d)(1) is limited to the

record that was before the state court that adjudicated the claim

on the merits. Section 2254(d)(1) refers, in the past tense, to a

state-court adjudication that “resulted in” a decision that was

contrary to, or “involved” an unreasonable application of,

established law. This backward-looking language requires an

examination of the state-court decision at the time it was made.

It follows that the record under review is limited to the record

in existence at that same time, i.e., the record before the state

court.

Ingram bears the burden of overcoming by clear and convincing evidence a

state court’s fact determination. “[A] determination of a factual issue made by a

State court shall be presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact

but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836

(11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court’s rejection of Ingram’s

post-conviction claims warrants deference in this federal action. (Respondent’s

Exhibits E-c and G at 227) Ingram’s federal application presents the same grounds

of ineffective assistance of counsel that he presented to the state courts.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Ingram claims ineffective assistance of counsel, a difficult claim to sustain.

“[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.” Waters v. Thomas,

46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384,

386 (11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998),

explains that Strickland v. Washington, 466 U.S. 668, 687 (1984), governs an

ineffective assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is

well settled and well documented. In Strickland v. Washington,

466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the

Supreme Court set forth a two-part test for analyzing ineffective

assistance of counsel claims. According to Strickland,

First, the defendant must show that counsel’s

performance was deficient. This requires showing

that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment. Second,

the defendant must show that the deficient

performance prejudiced the defense. This

requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

Strickland requires proof of both deficient performance and consequent

prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an

ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When

applying Strickland, we are free to dispose of ineffectiveness claims on either of its

two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual

ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct

on the facts of the particular case, viewed as of the time of counsel’s conduct.”

466 U.S. at 690. Strickland requires that “in light of all the circumstances, the

identified acts or omissions were outside the wide range of professionally competent

assistance.” 466 U.S. at 690.

Ingram must demonstrate that counsel’s alleged error prejudiced the defense

because “[a]n error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” 466 U.S. at 691. To meet this burden, Ingram must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” 466 U.S. at 694.

Strickland cautions that “strategic choices made after thorough investigation

of law and facts relevant to plausible options are virtually unchallengeable; and

strategic choices made after less than complete investigation are reasonable precisely

to the extent that reasonable professional judgments support the limitations on

investigation.” 466 U.S. at 690–91. As White v. Singletary, 972 F.2d 1218, 1220–21

(11th Cir. 1992), explains, Ingram cannot meet his burden merely by showing that

the avenue chosen by counsel proved unsuccessful.

The test has nothing to do with what the best lawyers would

have done. Nor is the test even what most good lawyers would

trial could have acted, in the circumstances, as defense counsel

acted at trial . . . . We are not interested in grading lawyers’

performances; we are interested in whether the adversarial

process at trial, in fact, worked adequately.

Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state

the obvious: the trial lawyers, in every case, could have done something more

or something different. So, omissions are inevitable . . . . [T]he issue is not what

is possible or ‘what is prudent or appropriate, but only what is constitutionally

compelled.’”) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).

Additionally, Hittson v. GDCP Warden, 759 F.3d 1210, 1267 (11th Cir. 2014),

cert. denied sub nom., Hittson v. Chatman, 135 S. Ct. 2126 (2015), discusses the required

extent of counsel’s investigation:

[W]e have explained that “no absolute duty exists to investi-

gate particular facts or a certain line of defense.” Chandler,

218 F.3d at 1317. “[C]ounsel has a duty to make reasonable

investigations or make a reasonable decision that makes

particular investigations unnecessary.” Strickland, 466 U.S.

at 691, 104 S. Ct. at 2066 (emphasis added). “[C]ounsel need

not always investigate before pursuing or not pursuing a line

of defense. Investigation (even a nonexhaustive, preliminary

investigation) is not required for counsel reasonably to

decline to investigate a line of defense thoroughly.” Chandler,

218 F.3d at 1318. “In assessing the reasonableness of an

attorney’s investigation . . . a court must consider not only

the quantum of evidence already known to counsel, but also

whether the known evidence would lead a reasonable attorney

to investigate further.” Wiggins, 539 U.S. at 527, 123 S. Ct.

at 2538.

See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has no duty

to raise a frivolous claim).

Under Section 2254(d) Ingram must prove that the state court’s decision

“(1) [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.” Sustaining a claim of ineffective assistance

of counsel is very difficult because “[t]he standards created by Strickland and

§ 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is

‘doubly’ so.” Richter, 562 U.S. at 105; Pinholster, 563 U.S. at 202 (stating that an

applicant must overcome this “‘doubly deferential’ standard of Strickland and the

AEDPA”); Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019)

(“Given the double deference due, it is a ‘rare case in which an ineffective assistance

of counsel claim that was denied on the merits in state court is found to merit relief

in a federal habeas proceeding.’”) (quoting Johnson v. Sec’y, Dep’t of Corr., 643 F.3d

907, 911 (11th Cir. 2011)), cert. denied, 140 S. Ct. 2520 (2020); and Pooler v. Sec’y,

Dep’t of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s

ineffective counsel claim — which is governed by the deferential Strickland test —

through the lens of AEDPA deference, the resulting standard of review is “doubly

deferential.”), cert. denied, 571 U.S. 874 (2013).

In summarily denying Ingram’s motion for post-conviction relief, the state

court recognized that Strickland governs a claim of ineffective assistance of counsel.

(Respondent’s Exhibit E at 702–12) Because the state court rejected the grounds

based on Strickland, Ingram cannot meet the “contrary to” test in Section 2254(d)(1).

Ingram instead must show that the state court unreasonably applied Strickland or

unreasonably determined the facts. In determining “reasonableness,” a federal

application for the writ of habeas corpus authorizes determining only “whether the

state habeas court was objectively reasonable in its Strickland inquiry” and not

independently assessing whether counsel’s actions were reasonable. Putnam v. Head,

268 F.3d 1223, 1244, n.17 (11th Cir. 2001), cert. denied, 537 U.S. 870 (2002). The

presumption of correctness and the highly deferential standard of review requires

that the analysis of each ground begin with the state court’s analysis.

A. Grounds of IAC During Trial

Ground Two:

Ingram contends that trial counsel was ineffective for failing to impeach the

State’s witness Simone Perry both with prior inconsistent statements in her

deposition (“sub-claim A”) and for bias (“sub-claim B”). (Doc. 1 at 5–6)

Sub-claim A

The post-conviction court denied sub-claim A as follows (Respondent’s

Exhibit E-c at 703) (state court record citations omitted):

Defendant alleges counsel failed to impeach or properly

cross-examine witness Simone Perry based on prior

inconsistent statements. He argues that at trial, Ms. Perry

testified that she heard him say he was going to stab Glenn,

but during her deposition, she only stated that she heard him

“mutter something in the nature of a threat towards Glenn”

and “could not recall the exact words he used.” Defendant

acknowledges that two other witnesses — Henry Harris (the

victim’s friend) and Glenn Dilworth[, Jr.] (the victim’s son)

— also testified that he had made a prior threat toward the

victim. However, he contends they were “undeniably” and

“soundly” impeached and concludes their testimony could not

testimony, “no other reliable testimony existed to establish

premeditation whatsoever.”

This claim lacks merit. Impeachment merely means that a

witness has been confronted with an inconsistency or a bias,

which the jury may consider in evaluating his or her credibility.

The jury still hears the testimony and may find the witness to

be credible [despite] the impeachment. Regardless, Ms. Perry

previously asserted that Defendant had threatened the victim

while holding a butcher knife, which was not inconsistent with

her testimony at trial. There is no reasonable probability that

the outcome of the trial would have been different if counsel

had impeached her on her ability at trial to recall the exact

words Defendant used in that threat.

Because Perry testified (1) in deposition that she “saw [Ingram] holding a

kitchen knife” and “heard [him] mutter something in the nature of a threat towards

Glenn” (Respondent’s Exhibit E-a at 676) and (2) at trial that she saw Ingram grab a

kitchen knife and heard him say, “I’m going to stab Glenn” (Respondent’s Exhibit

E-c at 719–20), the state court did not unreasonably determine facts. Whether the

deposition testimony was a prior inconsistent statement and whether the prior

inconsistent statement was admissible for the truth of the matter asserted are issues of

state law, and a state court’s determination of state law receives deference in federal

courts. Fla. Stat. § 90.608(1); Pearce v. State, 880 So. 2d 561, 569 (Fla. 2004); Machin

v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985) (“The federal courts must defer

to a state court’s interpretation of its own rules of evidence and procedure.”).3

3 Cases cited by Ingram in his reply (Doc. 12 at 11) reversed because trial counsel either

failed to impeach with a prior statement that was inconsistent or failed to examine the only

eyewitness. United States v. Orr, 636 F.3d 944, 952–53 (8th Cir. 2011); Higgins v. Renico, 470 F.3d 624,

628, 630 (6th Cir. 2000); Silva v. Woodford, 279 F.3d 825, 852–53 (9th Cir. 2002) (concluding that

trial counsel’s failure to cross-examine an eyewitness about a medical condition that rendered him

highly receptive to suggestion was a reasonable strategic decision).

Because trial counsel was not ineffective for failing to impeach Perry with the prior

consistent statement, the state court did not unreasonably apply Strickland. Pinkney

v. Sec’y, Dep’t Corrs., 876 F.3d 1290, 1297 (11th Cir. 2017).

Sub-claim B

Ingram contends that trial counsel was ineffective for failing to impeach

Simone Perry for bias. (Doc. 1 at 5–6) The post-conviction court denied

sub-claim B as follows (Respondent’s Exhibit E-c at 703–04) (state court record

citations omitted):

Defendant also alleges in Ground One that counsel failed to

properly cross-examine Ms. Perry “regarding her animosity

against [him] that would have established her motive for giving

false or misleading testimony against [him].” This portion of

Ground One was stricken with leave to amend.

In the Supplemental Amendment, he adds that during

depositions, Ms. Perry admitted she had some animosity

toward him. He cites Exhibit A but no exhibits are attached to

either the Supplemental Amendment or the original Motion for

Post-conviction Relief.

This claim remains legally insufficient with regard to the nature

of Ms. Perry’s animosity and to establish that she had a motive

for giving false testimony against him. Thus, Defendant fails to

establish that the outcome of the trial would have been different

if counsel had cross-examined her on this issue.

Ingram identified deposition testimony in neither his initial post-conviction

motion (Respondent’s Exhibit-a at 677) nor his supplemental motion (Respondent’s

Exhibit E-b at 697–98) nor his motion for rehearing (Respondent’s Exhibit E-d

at 728–32) that demonstrated Perry’s bias. Ingram attached to his rehearing motion

a letter from trial counsel, labeled “Exhibit A,” informing him that “Simone Perry

(who admitted that she had some animosity towards you) testified that she came

out of the den room while watching a movie . . . .” (Respondent’s Exhibit E-d

at 731) (bold in the original) The state court did not unreasonably apply Strickland’s

prejudice component because Ingram failed to identify deposition testimony that trial

counsel could have used to impeach Perry for bias. Borden, 646 F.3d at 822; United

States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about the testimony

of a putative witness must generally be presented in the form of actual testimony

by the witness or on affidavit.”); Buckelew v. United States, 575 F.2d 515, 521

(5th Cir. 1978) (“[C]omplaints of uncalled witnesses are not favored, because the

presentation of testimonial evidence is a matter of trial strategy and because

allegations of what a witness would have testified are largely speculative.”).

Ground Three:

Ingram asserts that trial counsel was ineffective for failing both to explain to

him Florida’s “Stand Your Ground” law and to raise a defense based on that law.

(Doc. 1 at 6–7) The post-conviction court denied the claim as follows (Respondent’s

Exhibit E-c at 705–06) (italics in original):

Defendant alleges counsel failed to inform him of the

affirmative defense under the Stand-Your-Ground law. He

argues that if counsel had raised this defense, the jury would

have acquitted him, and in support, states the following: there

was no reliable testimony1 that he made prior threats against the

decedent; the victim had only a single stab wound, which was

“consistent with trying to get someone away in self-defense[;]

minutes before the stabbing, the decedent threatened him

and used a racial slur; investigators recovered a pistol at the

decedent’s residence; witnesses testified the victim had been

drinking; no witnesses observed the stabbing; witnesses testified

the victim was the aggressor; and conditions in the area “were

nearly pitch black (dark).” Defendant also argues he had a right

to arm himself with a knife and stand his ground with no duty

to retreat, which counsel should have argued.

1 He argues the only testimony the State proffered

was or could have been impeached.

This claim lacks merit for the reasons set forth in the ruling

on Ground Two. There was extensive testimony about the

altercations that took place during the evening between

Defendant and the decedent, as well as the fact that the

decedent had been drinking. There is no reasonable probability

that the jury would have returned with an acquittal if counsel

had presented additional arguments in support of the

Stand-Your-Ground law.

The post-conviction court denied the claim that counsel was ineffective for not

asserting a “Stand Your Ground” defense in relevant part as follows (Respondent’s

Exhibit E-c at 704–05):

Defendant alleges counsel failed to seek a pre-trial probable

cause hearing based on the Stand-Your-Ground law, which

would have required dismissal of the charge. He argues that

upon his arrest, he informed the authorities his actions were

the result of self-defense . . . . This claim lacks merit . . . .

[T]he testimony in this case indicates that Defendant armed

himself with a knife and left his house to fight the decedent in

the street at the end of the driveway. Thus, the record shows

that Defendant effectively “re-engaged” the victim in a new

altercation. In this situation, there is no reasonable probability

the Court would have granted Defendant self-defense immunity

from prosecution at a pre-trial hearing. Joseph v. State,

103 So. 3d 227, 230 (Fla. 4th DCA 2012); Rodriguez v. State,

127 So. 3d 705 (Fla. 4th DCA 2013) (“[W]hen the petitioner

reengaged the victim outside the business premises where

the initial confrontation took place, he lost his statutory

immunity[.]”). Therefore, Defendant cannot establish that he

was prejudiced by counsel’s failure to request such a hearing.

Testimony at trial — including Ingram’s own testimony — proved that

Ingram came home upset, said that Dilworth had just pointed a gun at him, and

went back outside and stabbed Dilworth. (Respondent’s Exhibit C at 528–39 and

Exhibit E-c at 716–18) While there is no duty to retreat under Florida’s “Stand Your

Ground” law, deadly force is lawful only to prevent “imminent death or great

bodily harm.” Fla. Stat. § 776.012(1) (2009). Because Ingram returned home

after Dilworth pointed a gun at him, any threat of death or great bodily harm

had subsided. The state court did not unreasonably apply Strickland’s prejudice

component. Pressley v. State, 395 So. 2d 1175, 1177 (Fla. 3d DCA 1981) (“[A] person

may not use violence upon his assailant, after the assailant is no longer a threat and

all danger is clearly past, and thereby claim to be acting in self-defense.”); Reaves

v. Sec’y, Fla. Dep’t Corrs., 717 F.3d 886, 904–05 (11th Cir. 2013) (concluding that,

because evidence at trial defeated the defense, the applicant failed to show prejudice

under Strickland for the claim that trial counsel was ineffective for not presenting an

intoxication defense).

Also, in closing argument trial counsel asserted self-defense based on Florida’s

“Stand Your Ground” law (Respondent’s Exhibit C at 571–594), the trial court

instructed the jury on that defense (Respondent’s Exhibit C at 604–08), and the jury

rejected that defense. (Respondent’s Exhibit A at 156–57) Consequently, Ingram

could not have shown that the outcome at trial would have changed if trial counsel

had acted differently. Ledford v. Warden, 818 F.3d 600, 645 (11th Cir. 2016) (“In

other words, because the jury was presented with and instructed on the very defense

that Ledford contends trial counsel neglected, there is little chance, let alone a

‘substantial’ chance, that the trial outcome would have been any different had trial

counsel more fervently supported a mens rea defense.”).

Ground Four:

Ingram asserts that trial counsel was ineffective for not lodging three

objections during trial testimony by the State’s witnesses Henry Harris and Glenn

Dilworth, Jr. (Doc. 1 at 7–8) The post-conviction court denied the sub-claims as

follows.

Harris Sub-claim (1)

The prosecutor asked Henry Harris, “[D]id he have a way

to get rid of a gun if he had a gun?[ ]” and Harris answered,

“[N]o, sir.” The Court finds no prejudice, because this

question and answer tends to establish that Defendant did

not have a gun.

(Respondent’s Exhibit E-c at 706) (state court record citations omitted)

Because the state court mistakenly understood the pronoun “he” to refer to

Ingram — instead of Dilworth, the victim — the state court incorrectly concluded

that the testimony tended to show that Ingram did not have a gun. (Respondent’s

Exhibit E-c at 718) Nevertheless, the trial court would have overruled an objection

because Harris testified both (1) that he observed Dilworth walk down the street and

back and (2) that, based on that observation, in Harris’s opinion Dilworth did not

have a way to get rid of a gun, even if Dilworth had one. Fla. Stat. §§ 90.601 and

90.701. (Respondent’s Exhibit E-c at 717–18) Either unobjectionable first-hand

evidence based on direct observation by Harris or, if understood differently,

admissible lay-opinion testimony, this was proper testimony. Trial counsel fittingly

did not object. Meders v. Warden, Ga. Diag. Prison, 911 F.3d 1335, 1354 (11th Cir.

2019); State v. Santiago, 928 So. 2d 480, 481–82 (Fla. 5th DCA 2006).

Harris Sub-claim (2)

The prosecutor asked Mr. Harris, “[D]id you tell anybody in

the house [that] Walter was saying this?” (referring to

Defendant making threats), and Mr. Harris answered, “I mean

everybody was standing in there heard him for themselves.”

Defendant argues this constituted “self-bolstering, self-serving

hearsay and testifying for non-testifying witnesses.” The Court

finds no prejudice, because the point of the witness’[s] answer

was merely that Defendant was speaking loudly; i.e., “[H]e

didn’t come in the house whispering.”

(Respondent’s Exhibit E-c at 706–07) (state court record citations omitted)

Whether the trial court would have overruled an objection is an issue of

state law, and a state court’s determination of state law receives deference in a

federal court. Machin, 758 F.2d at 1433. The trial court would have overruled

an objection because Harris both (1) testified that he observed other people standing

near Ingram when Ingram spoke and (2) opined based on his observation that

the bystanders heard Ingram’s statements. Fla. Stat. §§ 90.601 and 90.701.

(Respondent’s Exhibit E-c at 718–19) Because this also was proper lay opinion

testimony, the state court did not unreasonably apply Strickland’s prejudice

component. Meders, 911 F.3d at 1354.

Harris Sub-claim (3)

Regarding the date, the prosecutor asked, “[T]his was on the

first of the month?” Defendant argues this was a prejudicial

comment designed to infer that he used his Social Security

check to buy drugs. The prosecutor did go on to ask,

“[A]nd what happens for Pops on the first of the month?”

[B]ut counsel objected and the prosecutor stated he would

go no further. Defendant argues this violated the order

granting a defense Motion in Limine to preclude “speculative

testimony that [he] went to a drug house after stabbing

decedent.” However, the Court finds no prejudice, because

examination.

(Respondent’s Exhibit E-c at 707) (state court record citations omitted)

The trial court prohibited all testimony that Ingram visited a drug house after

the stabbing. (Respondent’s Exhibit B at 197–200) Because Harris did not testify at

trial that Ingram bought drugs after the stabbing, the state court did not unreasonably

determine that the record refuted the claim. (Respondent’s Exhibit E-c at 719)

Dilworth, Jr. Sub-claim (1)

The prosecutor elicited speculative testimony from the

victim’s son, Glenn Dilworth[, Jr.] (aged nine), that Defendant

wanted a ride to a drug house. The prosecutor asked,

“[A]nd why did your dad say he wouldn’t take Pops there?”

and Glenn[, Jr.] responded, “I think because of drugs or

something.” Defendant acknowledges that counsel moved

for a mistrial but argues counsel only argued the comments

affected Defendant’s credibility and were irrelevant. He

contends counsel should have argued that this question, too,

violated the order on the Motion in Limine. This Court finds

no prejudice, because the prosecutor followed up with the

question, “[D]id your dad say that?” and Glenn[, Jr.] admitted,

“[N]o.” When counsel moved for a mistrial, the prosecutor

agreed to ask no more. There is no reasonable probability that

the Court would have granted a mistrial or that the outcome of

the appeal would have been different if counsel had added an

objection regarding the violation of the Motion in Limine.

(Respondent’s Exhibit E-c at 707–08) (state court record citations omitted)

Dilworth, Jr. denied at trial that his father ever said that he would not give

Ingram a ride because of drugs. (Respondent’s Exhibit E-c at 720) The granting of a

mistrial motion is an issue of state law, and a state court’s determination of state law

receives deference in federal courts. Pinkney, 876 F.3d at 1295; Dessaure, 891 So. 2d

at 464–65. Because an expanded mistrial motion would not have succeeded, the

state court did not unreasonably apply Strickland. Pinkney, 876 F.3d at 1297.

Dilworth, Jr. Sub-claim (2)

The prosecutor asked Glenn[, Jr.] whether his dad had a

weapon or knife, and Glenn[, Jr.] responded, “[N]o, he didn’t

have anything in his hands or pockets.” Defendant argues

counsel failed to object “to what amounted to pure speculation,

since there was no way Glenn[, Jr.] could have known if his

father had a gun or knife concealed on his person.” This claim

lacks merit. Glenn[, Jr.] had previously admitted his father

“went inside to get something” before going over to Pops’[s]

house. Counsel had no basis to object to his answer regarding

what the decedent did or did not have in his hands or pockets;

at most, counsel could have challenged the answer during

cross-examination.

(Respondent’s Exhibit E-c at 708) (state court record citations omitted)

Dilworth, Jr. testified at trial that Dilworth came inside to get something

before going over to Ingram’s home. (Respondent’s Exhibit E-c at 720–21) The

efficacy of an objection to the testimony by Dilworth, Jr. based on speculation is an

issue of state law, and a state court’s determination of state law receives deference in

a federal court. Fla. Stat. § 90.604. Machin, 758 F.2d at 1433. Because the objection

would not have succeeded, the state court did not unreasonably apply Strickland.

Meders, 911 F.3d at 1354.

Dilworth, Jr. Sub-claim (3)

Counsel impeached Glenn on a prior inconsistent statement,

i.e., that he never heard the argument between his father

and Defendant because he was inside watching TV, and the

prosecutor then led the witness by asking, “[Were] there

two arguments?” and “was some inside and some outside?”

Defendant argues the prosecutor led the witness to “hang onto

the only testimony that established Defendant made a prior

had a right to clarify the witness’[s] answer.

(Respondent’s Exhibit E-c at 708) (state court record citations omitted)

The prosecutor clarified on re-direct examination what Dilworth’s son

heard during the argument. (Respondent’s Exhibit E-c at 722) Whether the

prosecutor had a right to clarify that testimony is an issue of state law, and a state

court’s determination of state law receives deference in a federal court. Fla. Stat.

§ 90.612(1); Machin, 758 F.2d at 1433. Because the objection would not have

succeeded, the state court did not unreasonably apply Strickland. Meders, 911 F.3d

at 1354.4

Ground Six:

Ingram asserts that trial counsel was ineffective for not calling Alexis Poole as

a witness at trial. (Doc. 1 at 10–11) The post-conviction court denied the claim as

follows (Respondent’s Exhibit E-c at 711):

Defendant alleges counsel failed to call Alexis Poole to testify

that she was on the computer at her house at the time of the

stabbing and none of the children told her that Defendant had

made any threats to the decedent. He argues this testimony

would have rebutted that of the State’s witnesses, who claimed

to have heard him threatening the decedent.

Ground Six was stricken with leave to amend. In the

Supplemental Amendment, he adds that “counsel also had

the testimony of Alexis Poole, who said she was present at the

house at the time of the stabbing[,] and[, on] the evening of the

stabbing, none of the children mentioned that [Defendant] had

4 In his reply (Doc. 12 at 15–16) Ingram erroneously relies on several non-controlling

cases. United States v. Williams, 358 F.3d 956, 961–64 (D.C. Cir. 2004) (reversing for admission of

inculpatory hearsay statements); Cauthern v. Colson, 736 F.3d 465, 476–77 (6th Cir. 2013) (reversing

for improper comments by the prosecutor in closing argument); Girts v. Yanai, 501 F.3d 743, 755–56

(6th Cir. 2007) (same); Washington v. Hofbauer, 228 F.3d 689, 699–701 (6th Cir. 2000) (same).

exhibits are attached to either the Supplemental Amendment or

the original Motion for Post-conviction Relief. He concludes

this would have established a motive for Ms. Perry’s false

testimony.

This claim remains legally insufficient with regard to the nature

of Ms. Poole’s testimony. Thus, Defendant fails to establish

that the outcome of the trial would have been different if

counsel had called her as a witness.

Ingram identified deposition testimony by Poole in neither his post-conviction

motion (Respondent’s Exhibit-a at 677) nor his supplemental motion (Respondent’s

Exhibit E-b at 697–98) nor his motion for rehearing. (Respondent’s Exhibit E-d

at 728–32) Ingram attached to his rehearing motion a letter from trial counsel,

labeled “Exhibit B,” informing him that: “I deposed Ms. Alexis Poole . . . . She

testified that none of the children told her (the evening you stabbed Glenn) that you

had made any threats to Glenn . . . .” (Respondent’s Exhibit E-d at 732) Because he

did not identify deposition testimony by Poole that trial counsel could have

presented at trial, Ingram failed to plead facts that would show prejudice.

Consequently, the state court did not unreasonably apply Strickland. Borden,

646 F.3d at 822; Ashimi, 932 F.2d at 650.

B. Ground of IAC During Closing

Ground Five:

Ingram asserts that trial counsel was ineffective for not objecting to five

comments by the prosecutor during closing argument. (Doc. 1 at 9–10) The

post-conviction court denied the claim as to each comment as follows.

C omment One

The prosecutor argued: “You don’t bring a knife to a gun fight.

You bring a knife to something else. You bring a knife to an

ambush.” Also: “[Y]ou conceal the knife.” And: “[Y]ou don’t

bring a knife to a gun fight because he knew it wasn’t going to

be a gun fight.” Defendant contends there was no testimony

that he concealed the knife or that there was an “ambush”

and further contends these comments constituted inferences

on premeditation and his state of mind, without foundation

or basis. However, the arguments were permissible and

constituted fair comments in support of the State’s theory that

Defendant did not act in self-defense but rather that he killed

the victim “after consciously deciding to do so.”

(Respondent’s Exhibit E-c at 709) (state court record citations omitted)

Whether the prosecutor’s comments were permissible is an issue of state law,

and a state court’s determination of state law receives deference in a federal court.

Ford v. Norris, 364 F.3d 916, 918–19 (8th Cir. 2004) (“In Mr. Ford’s case, the

Arkansas Supreme Court came to the conclusion that had Mr. Ford’s attorney

objected to the prosecutor’s statements, the objection, as a matter of Arkansas law,

would probably have been overruled . . . . [T]he Arkansas Supreme Court was

applying Arkansas law to the facts of Mr. Ford’s case. The Arkansas Supreme Court

is the final authority on the interpretation of Arkansas law.”). Even if no witness

testified that Ingram concealed a knife or ambushed Dilworth, the prosecutor drew a

reasonable inference from testimony that Ingram grabbed a knife and a cardboard

tube from the kitchen and returned outside to stab Dilworth. (Respondent’s Exhibit

E-c at 716–20) See Dessaure v. State, 891 So. 2d 455, 468 (Fla. 2004) (“Closing

argument presents an opportunity for both the State and the defendant to argue all

reasonable inferences that might be drawn from the evidence.”). Because trial

counsel was not ineffective and the outcome of trial would not have changed, the

state court did not unreasonably apply Strickland. Meders, 911 F.3d at 1354.

Comment Two

The prosecutor argued the decedent’s gun was hidden in [an

oven] mitt in his kitchen and discovered when “they’re moving

out of the house because of Glenn’s death and the kid’s going to

go somewhere . . . .” Defendant argues there was no testimony

the gun was found a lengthy amount of time later or that it was

while “the kid” was being moved out; his position is that this

was designed to play on the sympathy of the jury. There is

simply no basis for this claim, and no reasonable probability

that the comments influenced the verdict in any way.

(Respondent’s Exhibit E-c at 709) (state court record citations omitted)

At trial the parties stipulated that “when Glenn Dilworth’s family was moving

everything out of the house to vacate the house three days after Mr. Dilworth’s

death, the family found a handgun in an oven mitt hanging over the stove in

Mr. Dilworth’s kitchen . . . .” (Respondent’s Exhibit C at 444) Because the

prosecutor’s comment was a reasonable inference drawn from this stipulation,

the state court did not unreasonably apply Strickland.

Comment Three

The prosecutor argued “[I]f you go and arm yourself and come

back to the conflict, that’s not kosher” and “not only did he

arm himself and resume the conflict, he armed himself, hid the

knife in the tube to ambush.” Defendant argues this was an

intentional misstatement of fact designed to mislead the jury.

His position is that he did not return to the conflict but rather

the victim came to his residence, where he had a right to arm

and defend himself. However, the undisputed facts indicate the

final altercation took place at the end of his driveway, by the

street. Therefore, the prosecutor was entitled to argue that

Defendant left the safety of his house to resume the conflict

with the decedent outdoors.

(Respondent’s Exhibit E-c at 709–10) (state court record citations omitted)

A federal court defers to the state court’s conclusion, based on state law, that

the comment was proper. Ford, 364 F.3d at 918–19. Witnesses testified at trial that

Ingram went inside his home after Dilworth pointed a gun at him and emerged with

both a knife and a cardboard tube and stabbed Dilworth to death. (Respondent’s

Exhibit E-c at 716–21) Because the prosecutor’s comment was a reasonable

inference drawn from this testimony and an accurate statement of Florida’s self-

defense law, the state court did not unreasonably apply Strickland. Pressley, 395 So.

2d at 1177.

Comment Four

The prosecutor argued Defendant was “fed up” with the victim

after breaking up arguments, “being in the middle,” cooking,

making coffee, feeding his kids, driving him around, and taking

him gambling. Defendant argues there was no testimony from

him that he was fed up and asserts that if anything, he enjoyed

helping his friend. However, this constituted fair comment

based on other testimony at trial.

(Respondent’s Exhibit E-c at 710) (state court record citations omitted)

Whether the comments were proper is based on state law, and a state court’s

determination of state law receives deference in a federal court. Ford, 364 F.3d

at 918–19. Ingram testified that he drove Dilworth’s children to school on rainy

mornings, brewed coffee for Dilworth, cooked dinner for Dilworth and his children,

and regularly drove Dilworth and his “god-sister” to the beach and to the casino.

(Respondent’s Exhibit C at 518, 532–33) Witnesses testified that Ingram grew tired

of mediating Dilworth’s fights with his “god-sister” and became angry.

(Respondent’s Exhibit E-c at 715–16, 718–19) Because the prosecutor’s comments

were reasonable inferences from this testimony, the state court did not unreasonably

apply Strickland.

Comment Five

The prosecutor argued Defendant wanted the decedent “to

take him somewhere” because Defendant just got paid that

day, but the decedent said, “I’m not going to risk my kid, I’m

not going to go there.” Defendant argues this violated the pre-

trial Motion in Limine precluding speculative testimony about

where he wanted to go, i.e., to a drug house or to buy drugs.

However, the prosecutor did not specifically mention a drug

house or the purchase of drugs.

(Respondent’s Exhibit E-c at 710) (state court record citations omitted)

The trial court prohibited all testimony that Ingram went to a drug house

after the stabbing. (Respondent’s Exhibit B at 197–200) Because the prosecutor’s

comment (1) explained only why Dilworth would not — before the stabbing —

drive Ingram where Ingram wanted to go and (2) did not mention a drug house or

the purchase of drugs, the prosecutor’s comment did not violate the pretrial ruling.

Consequently, the state court did not unreasonably apply Strickland. (Respondent’s

Exhibit B at 199–200)

* * * *

Further, the post-conviction court rejected the sub-claims for all comments as

follows (Respondent’s Exhibit E-c at 710–11):

Defendant concludes “the prosecutor’s primary witnesses to

establish an alleged prior threat were thoroughly impeached”

and argues the State could only establish its case of

premeditation by violating pretrial rulings, speculating, or

inferring on evidence and misstating the law [or] facts.”

Therefore, he concludes the foregoing comments cannot be

counsel had no basis to object to the comments in question.

Furthermore, there is no reasonable probability the outcome

of the trial or appeal would have been different if counsel had

done so.

An objection to the comments would have failed, the prosecutor’s comments

did not violate the pretrial ruling, and premeditation was proven by circumstantial

evidence. Franklin v. State, 209 So. 3d 1241, 1246 (Fla. 2016) (“Premeditation may

be inferred from circumstantial evidence such as the nature of the weapon used,

the presence or absence of adequate provocation, previous difficulties between the

parties, the manner in which the homicide was committed, and the nature and

manner of the wounds inflicted.” (citation and quotations omitted)). Consequently,

the state court did not unreasonably apply Strickland.

C. Ground of IAC Post-Trial

Ground Seven:

Ingram asserts that trial counsel was ineffective for not raising arguments in a

motion for new trial. (Doc. 1 at 11–13) The post-conviction court denied the claim

as follows (Respondent’s Exhibit E-c at 711–12):

Defendant alleges counsel failed to file a sufficient Motion for

New Trial based on the weight and sufficiency of the evidence.

He argues the Motion counsel filed “did raise several good

points” but failed to set forth facts that would have warranted

reversal. In support, he cites 14 “facts that would have required

a new trial.”

This claim lacks merit. A Motion for New Trial is directed

to the weight of the evidence, whereas a Motion for Judgment

of Acquittal tests the sufficiency. Regardless, the Motion for

New Trial filed by counsel was very detailed, and in light of the

testimony and evidence presented at trial, there is no reasonable

probability that a Motion raising the additional points

fact that the State’s witnesses were impeached did not render

their testimony non-existent or invalid, nor did it deprive their

testimony of all weight or negate the element of proof of

premeditation.

The state court record confirms that trial counsel filed a detailed motion

for new trial based on the weight of the evidence. (Respondent’s Exhibit E-c

at 725–26) Whether an expanded motion for new trial would have succeeded is

an issue of state law, and a state court’s determination of state law receives deference

in a federal court. Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) (“A federal

habeas court has no power to grant habeas corpus relief because it finds that the state

conviction is against the ‘weight’ of the evidence . . . .”). Because the state court

would not have granted the motion, the state court did not unreasonably apply

Strickland. Meders, 911 F.3d at 1354.

Also, the state court correctly concluded that the sufficiency of the evidence

claim was not cognizable in a motion for new trial. Compare Rule 3.380, Florida

Rules of Criminal Procedure (authorizing a judgment of acquittal if “the evidence is

insufficient to warrant a conviction”) with Rule 3.600(b)(2) (authorizing a new trial if

“the verdict is contrary to law or the weight of the evidence”). Even so, Ingram

asserted that trial counsel should have raised arguments that viewed the evidence in

the light most favorable to the defense. (Respondent’s Exhibit E-a at 689–91) The

trial court views the evidence in the light most favorable to the prosecution when

ruling on a motion for judgment of acquittal. Rogers v. State, 285 So. 3d 872, 891

(Fla. 2019).

Further, Ingram asserted that trial counsel should have argued that the State

did not rebut his reasonable hypothesis of innocence. (Respondent’s Exhibit E-a

at 689–91) Direct evidence at trial proved Ingram’s guilt. (Respondent’s Exhibit C

at 538) The case was not “wholly circumstantial,” and the circumstantial evidence

standard did not apply. Knight v. State, 186 So. 3d 1005, 1012 (Fla. 2016). Because

the state supreme court in Florida recently abandoned the circumstantial evidence

standard, Ingram could not demonstrate prejudice. Bush v. State, 295 So. 3d 179,

199 (Fla. 2020) (“Because this special standard is unwarranted, confusing, and out

of sync with both the jury instructions currently used in this state and the approach

to appellate review used by the vast majority of the courts in this country, we

discontinue its use.”); Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (“Unreliability

or unfairness does not result if the ineffectiveness of counsel does not deprive the

defendant of any substantive or procedural right to which the law entitles him.”).

D. Ground of IAC on Appeal

Ground Eight:

Ingram asserts that appellate counsel was ineffective for not arguing on

direct appeal that the self-defense jury instruction was incorrect (1) for conveying

that deadly force was justifiable “only” if Ingram reasonably believed that deadly

force was necessary to prevent imminent death or great bodily harm to himself

while resisting any attempt to commit aggravated assault (“sub-claim A”) and (2) for

reciting all of the elements for aggravated assault (“sub-claim B”). (Doc. 1 at 13–16)

Strickland applies to a claim of ineffective assistance of appellate counsel. Smith

v. Robbins, 528 U.S. 259, 285–86 (2000). As determined below, the state appellate

court did not unreasonably apply Strickland.

Sub-claim A

Because trial counsel objected to the use of the modifier “only” in the

self-defense instruction, appellate counsel was ineffective only if the issue would have

succeeded on direct appeal. (Respondent’s Exhibit C at 491–92) Diaz v. Sec’y, Dep’t

Corrs., 402 F.3d 1136, 1144–45 (11th Cir. 2005) (“Appellate counsel would not have

prevailed on this argument, and nonmeritorious claims that are not raised on appeal

do not constitute ineffective assistance of counsel.”); Brown v. United States, 720 F.3d

1316, 1335 (11th Cir. 2013) (“It is also crystal clear that there can be no showing of

actual prejudice from an appellate attorney’s failure to raise a meritless claim.”).

The trial court instructed the jury on self-defense as follows (Respondent’s

Exhibit G at 190–91) (bold added):

The use of deadly force is justifiable only if the defendant

reasonably believes that the force is necessary to prevent

imminent death or great bodily harm to himself while resisting

an attempt to commit aggravated assault with a firearm.

. . . .

A person is justified in using deadly force if he reasonably

believes that such force is necessary to prevent: Imminent death

or great bodily harm to himself or the imminent commission of

aggravated assault with a firearm against himself.

. . . .

If the defendant was not engaged in an unlawful activity and

was attacked in any place where he had a right to be, he had no

duty to retreat and had the right to stand his ground and meet

force with force, including deadly force, if he reasonably

believed it was necessary to do so to prevent death or great

aggravated assault witho ar firearm.

These instructions tracked Florida’s standard instruction for justifiable use of deadly

force. Fla. Std. Jury Instr. (Crim.) 3.6(f) (2011).

Ingram testified that he stabbed Dilworth because he thought that Dilworth

was reaching for a gun. (Respondent’s Exhibit G at 122–27, 130–31, 145) Trial

counsel argued the same in closing. (Respondent’s Exhibit G at 158–61, 164,

177–78) Because the defense claimed that Ingram was justified in using deadly force

only after Dilworth attempted to commit an aggravated assault with a firearm, the

state court could have reasonably concluded that the discrepancy between the two

jury instructions was harmless. Vila v. State, 74 So. 3d 1110, 1113 (Fla. 5th DCA

2011) (“It has long been held that the refusal to give a proper instruction that would

have not aided a party is harmless error.”).

Moreover, the first instruction corresponded to a defense based on

Florida’s justifiable homicide statute, Fla. Stat. § 782.02 (2009), and the second

corresponded to a defense based on Florida’s “Stand Your Ground” statutes. Fla.

Stat. §§ 776.012(1) and 776.013(3) (2009). The two instructions based on the

different statutes were not irreconcilable. Pileggi v. State, 232 So. 3d 415, 417 (Fla.

4th DCA 2017) (“We hold that the two statutes are not irreconcilable and, indeed,

compliment each other. Our holding is based on the well-established principle that it

is reasonable for a person subject to a felonious attack to believe deadly force is

necessary to stop oneself from being killed or prevent serious bodily injury.”).

Because the outcome on direct appeal would have remained the same even if

appellate counsel had raised the issue, the state appellate court did not unreasonably

apply Strickland. Owen v. Fla. Dep’t Corrs., 686 F.3d 1181, 1202 (11th Cir. 2012);

Boland v. Sec’y, Dep’t Corrs., 278 F. App’x 876, 879–80 (11th Cir. 2008).

Sub-claim B

Because trial counsel did not object to the recitation of the elements for

aggravated assault with a deadly weapon in the self-defense instruction, appellate

counsel could have been ineffective only if the instruction was fundamental error.

(Respondent’s Exhibit C at 469–78, 482–94, 617) Pinkney, 876 F.3d at 1296–97. By

denying the claim in an unelaborated decision, the state appellate court implicitly

concluded that the instruction was not fundamentally erroneous. Pinkney, 876 F.3d

at 1296–97. Fundamental error is an issue of state law, and a state court’s

determination of state law receives deference in a federal court. Pinkney, 876 F.3d

at 1297–99.

Even so, Florida’s standard self-defense instruction required the trial court to

recite the elements of aggravated assault, and the instruction supported Ingram’s

defense at trial. (Respondent’s Exhibit G at 122–27, 130–31, 145, 158–61, 164,

177–78) Fla. Std. Jury Instr. (Crim.) 3.6(f) (“Insert and define applicable felony that

defendant alleges victim attempted to commit.”). Because the instruction did not

improperly shift the burden of proof to the defense, the state appellate court did not

unreasonably apply Strickland. Woods v. State, 95 So. 3d 925, 927–28 (Fla. 5th DCA

2012) (holding that recitation of the elements of an applicable felony for the

justifiable use of deadly force instruction without the phrase “beyond a reasonable

doubt” was not fundamental error).

V. EVIDENTIARY HEARING

Ingram both asks the Court for an evidentiary hearing (Doc. 1 at 17) and

asserts under Section 2254(d)(2) that the state court unreasonably determined

facts. (Doc. 12 at 7–8) Ingram neither presents clear and convincing evidence to

rebut a particular finding by the state court nor shows that a particular finding was

unreasonable. 28 U.S.C. § 2254(d)(2), (e)(1). Ingram also does not proffer what he

would introduce at an evidentiary hearing. Consequently, he is not entitled to a

hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“It follows that if the record

refutes the applicant’s factual allegations or otherwise precludes habeas relief, a

district court is not required to hold an evidentiary hearing.”); Jones v. Sec’y,

Fla. Dep’t Corrs., 834 F.3d 1299, 1319 (11th Cir. 2016) (“[A] petitioner seeking an

evidentiary hearing must make a proffer to the district court of any evidence that he

would seek to introduce at a hearing.” (citations and quotations omitted)).

VI. CONCLUSION

Ingram fails to meet his burden to show that the state court’s decision was

either an unreasonable application of controlling Supreme Court precedent or an

unreasonable determination of fact. As Burt v. Titlow, 571 U.S. 12, 19–20 (2013),

states:

Recognizing the duty and ability of our state-court colleagues

to adjudicate claims of constitutional wrong, AEDPA erects a

formidable barrier to federal habeas relief for prisoners whose

claims have been adjudicated in state court. AEDPA requires

the claim being presented in federal court was so lacking

in justification that there was an error . . . beyond any

possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. [86, 103] (2011). “If this standard is difficult to meet”

— and it is — “that is because it was meant to be.” Id., at [102].

We will not lightly conclude that a State’s criminal justice

system has experienced the “extreme malfunctio[n]” for which

federal habeas relief is the remedy. Id., at [103] (internal

quotation marks omitted).

Ingram’s application for the writ of habeas corpus (Doc. 1) is DENIED. The

clerk must enter a judgment against Ingram and CLOSE this case.

DENIAL OF BOTH

A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Ingram is not entitled to a certificate of appealability (“COA”). A prisoner

seeking a writ of habeas corpus has no absolute entitlement to appeal a district

court’s denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court

must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.” To

merit a COA, Ingram must show that reasonable jurists would find debatable both

the merits of the underlying claims and the procedural issues he seeks to raise. See

28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan,

279 F.3d 926, 935 (11th Cir. 2001). Because he fails to show that reasonable jurists

would debate either the merits of the grounds or the procedural issues, Ingram is

entitled to neither a COA nor leave to appeal in forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma pauperis is

DENIED. Ingram must obtain permission from the circuit court to appeal in forma

pauperis.

ORDERED in Tampa, Florida, on September 30, 2020.

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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