Collins v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JAMES L. COLLINS, JR.,

Petitioner,

v. Case No. 3:18-cv-164-J-34JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner James L. Collins, Jr., an inmate of the Florida penal system, initiated this

action on January 23, 2018,1 by filing a Petition for Writ of Habeas Corpus under 28

U.S.C. § 2254 (Petition; Doc. 1). In the Petition, Collins challenges a 2013 state court

(Duval County, Florida) judgment of conviction for grand theft. He raises four grounds for

relief. See Petition at 5-51.2 Respondents have submitted a memorandum in opposition

to the Petition. See Answer to Petition for Writ of Habeas Corpus (Response; Doc. 21).

They also submitted exhibits. See Resp. Exs. A-O, Docs. 21-1 through 21-10. Collins filed

a brief in reply. See Reply Brief (Doc. 22). He also submitted exhibits. See Docs. 22-1

and 22-2. This case is ripe for review.

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference, the Court will cite the page number assigned by the

Court’s electronic docketing system.

II. Relevant Procedural History

On April 24, 2013, the State of Florida charged Collins, by Information in case

number 16-2013-CF-003339-AXXX-MA, with grand theft. See Resp. Ex. B1 at 8. At the

conclusion of a trial on September 10, 2013, a jury found Collins guilty, as charged. See

Resp. Exs. B1 at 23, Verdict; B2 and B3, Transcripts of the Trial Proceedings (Tr.), at

252.3 The circuit court sentenced Collins to a term of imprisonment of ten years, as a

habitual felony offender (HFO), on September 25, 2013. See Resp. Ex. B1 at 46-52,

Judgment; 105-27, Transcript of the Sentencing Proceeding (Sentencing Tr.).

On appeal, Collins, with the benefit of counsel, filed an initial brief, arguing that the

trial court erred when it (1) denied his motions for judgment of acquittal because the State

did not present a prima facie case of the value of the merchandise, and (2) admitted

hearsay to prove the essential element of the value of the merchandise. See Resp. Ex.

B4. The State filed an answer brief, see Resp. Ex. B5, and Collins filed a reply brief, see

Resp. Ex. B6. On June 26, 2014, the appellate court affirmed Collins’ conviction and

sentence per curiam without issuing a written opinion, see Resp. Ex. B7, and the mandate

issued on July 14, 2014, see Resp. Ex. B8.

Collins challenged his HFO sentence in a variety of motions until the appellate

court ultimately barred him from filing pro se motions. First, he filed a pro se motion to

correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a) (Rule

3.800) on July 16, 2014. See Resp. Ex. C1 at 1-4. The court denied the Rule 3.800 motion

on January 21, 2015, see id. at 8-65, stating in pertinent part:

3 The Court will cite the page number in the upper-righthand corner of the

transcript.

In the instant Motion, Defendant avers his classification

and sentence as an HFO are illegal. Specifically, he takes

issue with the State’s use of a prior conviction from 1987

which was used to habitualize him. Defendant reasons that

because he was released from prison in 1992 in that case and

he was not convicted of another felony within five years of his

release from prison, the State could not have, and should not

have, used his 1987 conviction to classify him as an HFO.

Therefore, Defendant avers, his sentence as an HFO is illegal

and it exceeds the scoresheet guidelines sentence of twenty-

seven months of incarceration. Defendant also contends,

through citing several cases, that the State did not sufficiently

prove his two prior predicate felony convictions.

A defendant may be sentenced as an HFO if “[t]he

defendant has previously been convicted of any combination

of two or more felonies in this state or other qualified

offenses.” § 775.084(1)(a)1, Fla. Stat. (2012). Additionally, the

felony for which the defendant faces sentencing must have

been “committed ... [w]ithin 5 years of the date of the

conviction of the defendant’s last prior felony or other qualified

offense.” § 775.084(1)(a)2b, Fla. Stat. (2012). Thus, pursuant

to section 775.084, the State is only required to reference two

of a defendant’s prior felony convictions, one of which

occurred within five years of the instant felony offense. See id.

In the instant case, the State filed its Notice of Intent to

Classify Defendant as a Habitual Felony Offender on July 23,

2013.[4] (Ex. D.) In this Notice, the State relied upon

Defendant’s following two prior felony convictions: Robbery

on February 13, 1987, and Grand Theft on January 13, 2012.

(Ex. D.) During Defendant’s sentencing hearing, the State

submitted into evidence certified copies of Defendant’s

judgments and sentences for the aforementioned convictions:

Robbery in case number CR-86-5800 in Orange County,

Florida; and Grand Theft: Third Degree in case number 48-

11-CF-16055 in Orange County, Florida.[5] (Exs. E at 7-8, 10-

12, 15; F.) Both of these predicate convictions were for felony

offenses. See § 812.12(2)(c), Fla. Stat. (1992) (classifying

Robbery as a second-degree felony); § 812.014(2)(d), Fla.

Stat. (2011) (classifying Grand Theft as a third-degree felony).

4 See Resp. Ex. B1 at 12, Notice of Intent to Classify Defendant as a Habitual

Felony Offender.

5 See Sentencing Tr.; Resp. Ex. C1 at 46-64.

The record demonstrates Defendant committed the instant

crime on April 6, 2013,[6] approximately one year after his

felony conviction for Grand Theft on January 13, 2012, and

well within the five-year period mandated by section

775.084(1)(a)2b. (Exs. F, G.) Therefore, this Court finds the

State lawfully relied upon, and proved, two of Defendant’s

prior felony convictions in classifying him as an HFO. Because

Defendant’s sentence as an HFO is not illegal, his instant

allegations are without merit and the instant Motion is denied.

Resp. Ex. C1 at 8-10. On May 13, 2015, the court denied Collins’ request for rehearing,

see id. at 69-70, stating that the court did “not find any points of law or fact that were

overlooked in deciding [Collins’] Motion,” id. at 80. On appeal, Collins filed a pro se initial

brief, see Resp. Ex. C2, and the State filed a notice that it did not intend to file an answer

brief, see Resp. Ex. C3. On September 28, 2015, the appellate court affirmed Collins’

conviction and sentence per curiam without issuing a written opinion, see Resp. Ex. C4,

and denied his motion for rehearing on November 2, 2015, see Resp. Exs. C5; C6. The

mandate issued on November 18, 2015. See Resp. Ex. C7.

On or about November 9, 2015, Collins filed a pro se motion to correct illegal

sentence in the Florida Supreme Court. See Resp. Ex. C8. The court construed the

motion as a petition for writ of habeas corpus, and dismissed it on November 12, 2015.7

See Resp. Ex. C9.

6 See Resp. Ex. B1 at 8, Information.

7 The court cited Grate v. State, 750 So. 2d 625 (Fla. 1999) (holding that provisions

of the Florida Constitution governing the Florida Supreme Court’s jurisdiction to issue

extraordinary writs may not be used to seek review of an appellate court decision issued

without written opinion when the basis for review is an alleged conflict between that

decision and an opinion issued by either the Florida Supreme Court or another District

Court of Appeal).

Collins also challenged his HFO sentence by filing a pro se petition for writ of

habeas corpus on January 19, 2016, see Resp. Ex. D1 at 1-9, and an amended petition

on March 7, 2016, in the state circuit court, see id. at 10-20. As relief, he asked that the

court resentence him without using the 1987 robbery conviction. See id. at 18. The court

denied both petitions on September 15, 2016, see id. at 21-88, stating in pertinent part:

In the instant Motions, Defendant contends his

sentence as a habitual felony offender is illegal because the

State used a 1987 robbery conviction as a third conviction to

establish Defendant’s habitual felony offender status.

According to Defendant, because this conviction was not

within five years of Defendant committing the offense in the

case at bar, his 1987 robbery conviction cannot be used in the

habitualization process. Defendant also contends that robbery

is not a qualifying offense for purposes of applying the habitual

felony offender designation. Therefore, Defendant argues that

his conviction of robbery in 1987 taints his convictions on the

other counts in his 1987 case, thereby rendering any

conviction in his 1987 case inapplicable to the habitual felony

offender statute. Furthermore, Defendant claims his 1987

convictions are not subject to the habitual felony offender

statute because they occurred prior to enactment of the

statute, and that using it to enhance the sentence in the

instant case is a violation against the prohibition of double

jeopardy.

A petition for writ of habeas corpus cannot be used

to raise issues which could have been raised at trial and

on direct appeal. See Hargrave v. Wainwright, 388 So. 2d

1021, 1021 (Fla. 1980) (it is well settled that habeas corpus

may not be used as a vehicle to raise for the first time issues

that the petitioner could have raised during the formal trial and

on appeal). Likewise, a defendant cannot use a petition for

writ of habeas corpus to obtain the kind of collateral

postconviction relief which may have been available by filing

a motion in the sentencing court pursuant to the Florida Rules

of Criminal Procedure. See Baker v. State, 878 So. 2d 1236,

1245 (Fla. 2004) (the common law remedy of habeas corpus

is not available in Florida to obtain the kind of collateral

postconviction relief available by motion in the sentencing

court pursuant to rule 3.850). However, a court can treat an

incorrectly styled motion under an applicable rule of criminal

procedure if it is properly pled. Gill v. State, 829 So. 2d 299,

300 (Fla. 2nd DCA 2002) (“Where a movant files a properly

pleaded claim but incorrectly styles the postconviction motion

in which it was raised, the trial court must treat the claim as if

it had been filed in a properly styled motion.”). Accordingly, to

the extent any of Defendant’s claims are cognizable under

rule 3.800(a) or another applicable postconviction rule, the

Court will treat the motion as such. Id.

Rule 3.800(a) allows for the correction of an illegal

sentence. For a sentence to be illegal under rule 3.800(a), “the

sentence must impose a kind of punishment that no judge

under the entire body of sentencing statutes could possibly

inflict under any set of factual circumstances.” Blakley v.

State, 746 So. 2d 1182, 1187 (Fla. 4th DCA 1999). See also

Carter v. State, 786 So. 2d 1173, 1181 (Fla. 2001) (approving

the definition of illegal sentence outlined in Blakley). However,

“if it is possible under all the sentencing statutes – given a

specific set of facts – to impose a particular sentence, then

the sentence will not be illegal within rule 3.800(a) even

though the judge erred in imposing it.” Blakley, 746 So. 2d at

1182. The Court notes that “[a]lthough there is no ban on filing

successive 3.800(a) motions, collateral estoppel prohibits a

defendant from raising the same illegal sentencing claim

which has already been raised in a prior postconviction motion

and decided on the merits. Mills v. State, 23 So. 3d 186, 187

(Fla. 1st DCA 2009) (citing State v. McBride, 848 So. 2d 287,

290 (Fla. 2003)).

As an initial matter, the Court finds that the claims

raised in the instant Motions are substantially similar to

the claims raised in Defendant’s July 16, 2014 Motion,

which the Court denied on the merits and the First District

Court of Appeal affirmed on appeal. (Exs. E, F.)

Accordingly, Defendant’s Motions are prohibited

pursuant to the doctrine of collateral estoppel. Id.

Moreover, as explained in the Court’s January 21,

2015, the State provided proper evidence to demonstrate

Defendant qualified as a habitual felony offender. (Exs. E, G,

H, I, J.) To the extent Defendant argues his 1987 conviction

cannot be used because it predates enactment of the habitual

felony offender statutes, such a claim is meritless. See Grant

v. State, 770 So. 2d 655, 661-62 (Fla. 2000) (noting that “[a]

habitual offender sentence is not an additional penalty for an

earlier crime; rather, it is an increased penalty for the latest

crime, which is an aggravated offense because of the

repetition.”). Accordingly, Defendant’s sentences are not

illegal and he is not entitled to relief.

Resp. Ex. D1 at 22-24 (emphasis added). On appeal, Collins filed pro se initial and reply

briefs, see Resp. Exs. D2; D3; D5, and the State filed an answer brief, see Resp. Ex. D4.

On July 14, 2017, the appellate court affirmed Collins’ conviction and sentence per curiam

without issuing a written opinion, see Resp. Ex. D6, and the mandate issued on August

11, 2017, see Resp. Ex. D7.

Next, Collins filed a pro se motion for post-conviction relief pursuant to Florida Rule

of Criminal Procedure 3.850 (Rule 3.850) on February 23, 2016. See Resp. Ex. E at 1-

26. In his request for post-conviction relief, Collins asserted that counsel was ineffective

because she failed to object to the State’s introduction of a photograph into evidence.

See id. at 3. The circuit court denied the Rule 3.850 motion on September 19, 2016. See

id. at 27-98. On appeal, Collins filed a pro se amended initial brief, see Resp. Ex. E3, and

the State filed a notice that it did not intend to file an answer brief, see Resp. Ex. E4. The

appellate court affirmed the circuit court’s denial of Collins’ Rule 3.850 motion per curiam

without issuing a written opinion on July 12, 2017, and the mandate issued on August 9,

2017. See Resp. Ex. E6; see also http://onlinedocketsdca.flcourts.org, case no. 1D16-

4919.

Collins filed a pro se petition for writ of certiorari on May 4, 2016. See Resp. Ex.

F1. The appellate court dismissed the petition per curiam without issuing a written opinion

on January 9, 2017, see Resp. Ex. F2, and the mandate issued on February 6, 2017, see

Resp. Ex. F3. Collins also filed pro se motions to correct illegal sentence on October 7,

2016, see Resp. Ex. J1 at 1-7, April 11, 2017, see Resp. Ex. J2 at 1-6, and May 16, 2017,

see Resp. Ex. J1 at 25-41. The circuit court dismissed the October 7th and May 16th

motions and denied the April 11th motion on June 14, 2017, see Resp. Ex. J1 at 8-24,

stating in pertinent part:

The Defendant has filed a “Motion for Relief from Void

of [sic] Judgment,” pursuant to Florida Rule of Civil Procedure

1.540(b)(4) construed as a successive “Motion to Correct

Illegal Sentence,” filed pursuant to Florida Rule of Criminal

Procedure 3.800(a). The Defendant again attacks the legality

of his sentence listing the same allegation from his July 16,

2014 Motion to Correct. Therefore, this Motion is dismissed

as successive. See, Price v. State, 692 So. 2d 971, 971 (Fla.

2d DCA 1997) (noting that rule 3.800 “contains no proscription

against the filing of successive motions” but that “a defendant

is not entitled to successive review of a specific issue which

has already been decided against him”). State v. McBride,

848 So. 2d 287, 290-91 (Fla. 2003)[.] Further, Defendant’s

Motion is insufficient in that it fails to [attach] court records that

demonstrate on their face that he is entitled to relief.

The Defendant’s “Motion to Correct Illegal Sentence,”

filed pursuant to Florida Rule of Criminal Procedure 3.800(a)

and filed on April 11, 2017 alleges that the Defendant’s

sentence is illegal because the issue of whether he met the

criteria to be classified as a Habitual Offender was not

submitted to a jury. The Defendant’s Motion is insufficient in

that it fails to [attach] court records that demonstrate on their

face that he is entitled to relief. Further, pursuant to

775.084(4)(b), the Court, not the jury[,] must make this

determination. The Judgment in this case demonstrates that

the Court made this finding required by law.[8] (Exhibit C at

Page 6) Therefore, this claim is refuted by the record and the

Defendant is not entitled to relief.

The Defendant’s “Motion to Correct Illegal Sentence,”

filed pursuant to Florida Rule of Criminal Procedure 3.800(a)

and filed on May 19, 2017 alleges that his illegal sentence

violates double jeopardy. Double jeopardy challenges to

convictions are not cognizable under rule 3.800(a) for two

reasons. First, a traditional double jeopardy challenge attacks

both the conviction and, by default, the sentence, while rule

3.800(a) is limited to claims that a sentence itself is illegal,

8 See Resp. Ex. B1 at 51; see also Sentencing Tr.

without regard to the underlying conviction. See e.g.,

Plowman v. State, 586 So. 2d 454, 456 (Fla. 2d DCA 1991);

Henry v. State, 920 So. 2d 1204, 1205 (Fla. 4th DCA 2006);

Salazar v. State, 675 So. 2d 654, 655 (Fla. 3d DCA 1996);

State v. Spella, 567 So. 2d 1051, 1051 (Fla. 5th DCA 1990);

Ferenc v. State, 563 So. 2d 707, 707 (Fla. 1st DCA 1990).

Second, permitting defendants to attack their conviction and

sentence under rule 3.800(a) would subsume Florida Rule of

Criminal Procedure 3.850 into rule 3.800(a), thereby allowing

defendants to circumvent rule 3.850’s two-year time bar for

attacking their convictions and sentences. Cf. United States

v. Little, 392 F.3d 671, 678 (4th Cir. 2004) (finding that

expanding Federal Rule of Criminal Procedure 35(a), after

which rule 3.800(a) is modeled, would impermissibly infringe

upon other collateral review rules). Coughlin v. State, 932 So.

2d 1224, 1225-26 (Fla. 2d DCA 2006). Therefore[,] the Motion

is dismissed.

Resp. Ex. J1 at 8-10 (some emphasis deleted). On appeal, Collins filed initial and reply

briefs, see Resp. Exs. J3; J5, and the State filed a notice that it did not intend to file an

answer brief, see Resp. Ex. J4. The appellate court affirmed the circuit court’s order per

curiam without issuing a written opinion on January 11, 2018, see Resp. Ex. J6, and the

mandate issued on February 8, 2018, see Resp. Ex. J7.

Collins filed a pro se petition for all writs jurisdiction in the Florida Supreme Court

on July 17, 2017. See Resp. Ex. L1. The court dismissed the petition on November 14,

2017, for lack of jurisdiction because Collins had “failed to cite an independent basis that

would allow the Court to exercise its all writs authority” and “no such basis [was] apparent

on the face of the petition.” Resp. Ex. L2. Next, Collins filed a pro se petition for writ of

prohibition in the state appellate court on July 19, 2017. See Resp. Ex. M1. In the petition,

he asserted that the state circuit court violated the double jeopardy clause of the United

States Constitution, the United States Supreme Court’s ruling in Apprendi v. New Jersey,

530 U.S. 466 (2000), and ex post facto law when it imposed an HFO sentence. See Resp.

Ex. M1. The appellate court denied the petition per curiam on the merits on August 24,

2017. See Resp. Ex. M2.

On February 13, 2018, the appellate court barred Collins from future pro se filings

concerning Duval County case number 16-2013-CF-003339-AXXX-MA, stating in

pertinent part:

Due to the Appellant’s apparent abuse of the legal process by

his repeated pro se filings attacking his conviction and

sentence, this court issued an order directing the Appellant to

show cause why he should not be prohibited from future pro

se filings. State v. Spencer, 751 So. 2d 47, 48 (Fla. 1999)

(requiring that courts “first provide notice and an opportunity

to respond before preventing [a] litigant from bringing further

attacks on his or her conviction and sentence.”). The appellant

has failed to respond.

As such, because the Appellant’s continued and repeated

attacks on his conviction and sentence have become an

abuse of the legal process, we hold that he is barred from

future pro se filings in this court concerning Duval

County case 16-2013-CF-3339. The Clerk is directed not to

accept any future filings concerning this case unless they are

filed by a member in good standing of The Florida Bar. The

Appellant is warned that any filings that violate the terms of

this order may result in a referral to the appropriate institution

for disciplinary procedures as provided in section 944.279,

Florida Statutes. See Fla. R. App. P. 9.410.

Resp. Ex. O (emphasis added).

III. One-Year Limitations Period

This proceeding was timely filed within the one-year limitations period. See 28

U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to establish the

need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d

1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary hearing, a

federal court must consider whether such a hearing could enable an applicant to prove

the petition’s factual allegations, which, if true, would entitle the applicant to federal

habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t

of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016). “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.” Schriro, 550 U.S. at 474. The pertinent facts of

this case are fully developed in the record before the Court. Because the Court can

“adequately assess [Collins’] claim[s] without further factual development,” Turner v.

Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be

conducted.

V. Governing Legal Principles

A. Standard of Review

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

state prisoner’s federal petition for habeas corpus. See Ledford v. Warden, Ga.

Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137

S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure that federal habeas relief

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

and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38

(2011) (quotation marks omitted)). As such, federal habeas review of final state court

decisions is “‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v. Humphrey,

662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

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

if any, that adjudicated the claim on the merits. See Marshall v. Sec’y, Fla. Dep’t of Corr.,

828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue a written opinion

explaining its rationale in order for the state court’s decision to qualify as an adjudication

on the merits. See Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s

adjudication on the merits is unaccompanied by an explanation, the United States

Supreme Court has instructed:

[T]he federal court should “look through” the unexplained

decision to the last related state-court decision that does

provide a relevant rationale. It should then presume that the

unexplained decision adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be rebutted by

showing that the higher state court’s adjudication most likely relied on different grounds

than the lower state court’s reasoned decision, such as persuasive alternative grounds

that were briefed or argued to the higher court or obvious in the record it reviewed. Id. at

1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars relitigation

of the claim unless 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.”

28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98. The Eleventh Circuit describes the limited

scope of federal review pursuant to § 2254 as follows:

First, § 2254(d)(1) provides for federal review for claims of

state courts’ erroneous legal conclusions. As explained by the

Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct.

1495, 146 L.Ed.2d 389 (2000), § 2254(d)(1) consists of two

distinct clauses: a “contrary to” clause and an “unreasonable

application” clause. The “contrary to” clause allows for relief

only “if the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law or if the

state court decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.” Id. at

413, 120 S. Ct. at 1523 (plurality opinion). The “unreasonable

application” clause allows for relief only “if the state court

identifies the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for claims of

state courts’ erroneous factual determinations. Section

2254(d)(2) allows federal courts to grant relief only if the state

court’s denial of the petitioner’s claim “was based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1), which

imposes a burden on the petitioner to rebut the state court’s

factual findings “by clear and convincing evidence.” See Burt

v. Titlow, 571 U.S. ---, ---, 134 S. Ct. 10, 15, 187 L.Ed.2d 348

(2013); accord Brumfield v. Cain, 576 U.S. ---, ---, 135 S. Ct.

2269, 2282, 192 L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual determination is

not unreasonable merely because the federal habeas court

would have reached a different conclusion in the first

instance.’” Titlow, 571 U.S. at ---, 134 S. Ct. at 15 (quoting

Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849, 175

L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S. Ct. 2298

(2017). Also, deferential review under § 2254(d) generally is limited to the record that was

before the state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an examination

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

Thus, “AEDPA erects a formidable barrier to federal habeas relief for prisoners

whose claims have been adjudicated in state court.” Burt v. Titlow, 134 S. Ct. 10, 16

(2013). “Federal courts may grant habeas relief only when a state court blundered in a

manner so ‘well understood and comprehended in existing law’ and ‘was so lacking in

justification’ that ‘there is no possibility fairminded jurists could disagree.’” Tharpe, 834

F.3d at 1338 (quoting Richter, 562 U.S. at 102-03). This standard is “meant to be” a

“difficult” one to meet. Richter, 562 U.S. at 102. A district court’s obligation is “to train its

attention” on the legal and factual basis for the state court’s ruling, not to “flyspeck the

state court order or grade it.” Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335,

1349 (11th Cir. 2019) (citing Wilson, 138 S. Ct. at 1191-92), cert. denied, 140 S. Ct. 394

(2019). Thus, to the extent that the petitioner’s claims were adjudicated on the merits in

the state courts, they must be evaluated under 28 U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

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

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

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

remedies, the petitioner must “fairly present[]” every issue raised in his federal petition to

the state’s highest court, either on direct appeal or on collateral review. Castille v.

Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust a claim,

“state prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established appellate

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28 U.S.C. §

2254(b)(1), thereby giving the State the “‘“opportunity to pass

upon and correct” alleged violations of its prisoners’ federal

rights.’” Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887,

130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard v.

Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438

(1971)). To provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each appropriate

state court (including a state supreme court with powers of

discretionary review), thereby alerting that court to the federal

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

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

1728, 144 L.Ed.2d 1 (1999).

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

A state prisoner’s failure to properly exhaust available state remedies results in a

procedural default which raises a potential bar to federal habeas review. The United

States Supreme Court has explained the doctrine of procedural default as follows:

Federal habeas courts reviewing the constitutionality of a

state prisoner’s conviction and sentence are guided by rules

designed to ensure that state-court judgments are accorded

the finality and respect necessary to preserve the integrity of

legal proceedings within our system of federalism. These

rules include the doctrine of procedural default, under which a

federal court will not review the merits of claims, including

constitutional claims, that a state court declined to hear

because the prisoner failed to abide by a state procedural rule.

See, e.g., Coleman,[9] supra, at 747-748, 111 S. Ct. 2546;

Sykes,[10] supra, at 84-85, 97 S. Ct. 2497. A state court’s

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

precludes federal review of the claims if, among other

requisites, the state procedural rule is a nonfederal ground

adequate to support the judgment and the rule is firmly

established and consistently followed. See, e.g., Walker v.

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

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

Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127-1128, 179

L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct.

612, 617-618, 175 L.Ed.2d 417 (2009). The doctrine barring

procedurally defaulted claims from being heard is not without

exceptions. A prisoner may obtain federal review of a

defaulted claim by showing cause for the default and

prejudice from a violation of federal law. See Coleman, 501

U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been procedurally

defaulted, a federal court may still consider the claim if a state habeas petitioner can show

either (1) cause for and actual prejudice from the default; or (2) a fundamental miscarriage

of justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). In order for a petitioner to

establish cause,

the procedural default “must result from some objective factor

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

claim and which cannot be fairly attributable to his own

conduct.” McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.

1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[11]

Under the prejudice prong, [a petitioner] must show that “the

errors at trial actually and substantially disadvantaged his

defense so that he was denied fundamental fairness.” Id. at

1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may receive

consideration on the merits of a procedurally defaulted claim if the petitioner can establish

that a fundamental miscarriage of justice, the continued incarceration of one who is

actually innocent, otherwise would result. The Eleventh Circuit has explained:

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

remains yet another avenue for him to receive consideration

on the merits of his procedurally defaulted claim. “[I]n an

extraordinary case, where a constitutional violation has

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

probably resulted in the conviction of one who is actually

innocent, a federal habeas court may grant the writ even in

the absence of a showing of cause for the procedural default.”

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

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

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

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

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

likely than not that no reasonable juror would have convicted him’ of the underlying

offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.

Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be credible,’ a claim of actual

innocence must be based on reliable evidence not presented at trial.” Calderon v.

Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity

of such evidence, in most cases, allegations of actual innocence are ultimately summarily

rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective assistance of

counsel. That right is denied when a defense attorney’s performance falls below an

objective standard of reasonableness and thereby prejudices the defense.” Yarborough

v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521

(2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person challenging a

conviction must show that “counsel’s representation fell below

an objective standard of reasonableness.” [Strickland,] 466

U.S. at 688, 104 S. Ct. 2052. A court considering a claim of

ineffective assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range” of

reasonable professional assistance. Id., at 689, 104 S. Ct.

2052. The challenger’s burden is to show “that counsel made

errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must demonstrate “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.” Id., at 694, 104 S. Ct.

2052. It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.” Id., at

693, 104 S. Ct. 2052. Counsel’s errors must be “so serious as

to deprive the defendant of a fair trial, a trial whose result is

reliable.” Id., at 687, 104 S. Ct. 2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of any iron-

clad rule requiring a court to tackle one prong of the Strickland test before the other.”

Ward, 592 F.3d at 1163. Since both prongs of the two-part Strickland test must be

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

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

Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,

which we expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is a most

deferential one.” Richter, - U.S. at -, 131 S. Ct. at 788. But

“[e]stablishing that a state court’s application of Strickland was

unreasonable under § 2254(d) is all the more difficult. The

standards created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is

doubly so.” Id. (citations and quotation marks omitted). “The

question is not whether a federal court believes the state

court’s determination under the Strickland standard was

incorrect but whether that determination was unreasonable -

a substantially higher threshold.” Knowles v. Mirzayance, 556

U.S. 111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel satisfied Strickland’s deferential

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

decision denying the claim. Richter, - U.S. at -, 131 S. Ct. at

788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v. Mirzayance,

556 U.S. 111, 123 (2009). In other words, “[i]n addition to the deference to counsel’s

performance mandated by Strickland, the AEDPA adds another layer of deference--this

one to a state court’s decision--when we are considering whether to grant federal habeas

relief from a state court’s decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir.

2004). As such, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

A. Grounds One, Two, and Four

As ground one, Collins asserts that the trial judge violated the code of judicial

conduct during the trial and sentencing proceedings. See Petition at 5-8. According to

Collins, the judge was biased and unethical, denied him a fair sentencing hearing, and

erred when he found that Collins qualified for an HFO sentence. See id. Additionally, he

maintains that counsel was ineffective when she failed to: notify him that the State was

seeking an HFO sentence, see id. at 7; object to the State’s use of the 1987 robbery

conviction to increase the punishment, see id. at 14, and challenge the HFO sentence on

double jeopardy grounds, see id. at 41. Respondents argue that Petitioner did not

properly exhaust the claims in the state courts, and therefore the claims are procedurally

barred. See Response at 10-14. The Court agrees that the claims have not been

exhausted, and are therefore procedurally barred since Petitioner failed to raise the

claims in a procedurally correct manner. Petitioner has not shown either cause excusing

the default or actual prejudice resulting from the bar.12 Moreover, he has failed to identify

any fact warranting the application of the fundamental miscarriage of justice exception.

Even assuming Petitioner’s claims are not procedurally barred, Petitioner is not

entitled to relief. To the extent Collins asserts that the trial court erred when it permitted

the State to seek an HFO sentence and use his 1987 robbery conviction as a qualifying

offense to increase his sentence under Florida Statutes section 775.084 (HFO statute),

the claims present issues purely of state law not cognizable on federal habeas review.

The purpose of a federal habeas proceeding is to review the lawfulness of Collins’ custody

to determine whether that custody is in violation of the Constitution or laws or treaties of

the United States. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (holding errors of

state law are not cognizable in federal habeas review); 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.”); Coleman v. Thompson, 501 U.S. 722 (1991).

Thus, insofar as Collins’ claims in ground one allege the trial court erred under Florida

law when it sentenced him as an HFO, such claims provide no basis for federal habeas

relief. See Estelle, 502 U.S. at 67-68.

12 “To overcome the default, a prisoner must also demonstrate that the underlying

ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the

prisoner must demonstrate that the claim has some merit.” Martinez, 132 S. Ct. at 1318.

As discussed in the alternative merits analysis that follows, these ineffectiveness claims

lack any merit. Therefore, Collins has not shown that he can satisfy an exception to the

bar.

As to Collins’ ineffectiveness claims, there is a strong presumption in favor of

competence when evaluating the performance prong of the Strickland ineffectiveness

inquiry. See Anderson v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 881, 904 (11th Cir. 2014).

The inquiry is “whether, in light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance.” Strickland, 466 U.S.

at 690. “[H]indsight is discounted by pegging adequacy to ‘counsel’s perspective at the

time’ . . . and by giving a ‘heavy measure of deference to counsel’s judgments.’” Rompilla

v. Beard, 545 U.S. 374, 381 (2005). Thus, Collins must establish that no competent

attorney would have taken the action that his counsel chose.

Notably, the test for ineffectiveness is neither whether counsel could have done

more nor whether the best criminal defense attorneys might have done more; in

retrospect, one may always identify shortcomings. Waters v. Thomas, 46 F.3d 1506, 1514

(11th Cir. 1995) (stating that “perfection is not the standard of effective assistance”)

(quotations omitted). Instead, the test is whether what counsel did was within the wide

range of reasonable professional assistance. Ward, 592 F.3d at 1164 (quotations and

citation omitted); Dingle v. Sec’y for Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007)

(“The question is whether some reasonable lawyer at the trial could have acted as

defense counsel acted in the trial at issue and not what ‘most good lawyers’ would have

done.”) (citation omitted).

On this record, Collins has failed to carry his burden of showing that his counsel’s

representation fell outside that range of reasonably professional assistance. Even

assuming arguendo deficient performance by defense counsel, Collins has not shown

any resulting prejudice. He has not shown that a reasonable probability exists that the

outcome of the case would have been different if counsel had acted as Collins claims she

should have. His ineffectiveness claim is without merit since he has shown neither

deficient performance nor resulting prejudice. Accordingly, Collins is not entitled to federal

habeas relief on his ineffectiveness claims.

Next, as grounds two and four, Collins asserts that the state circuit court erred

when it imposed an HFO sentence. See Petition at 9, 28. According to Collins, the court’s

use of his 1987 robbery conviction as a qualifying offense to increase his sentence

violates the double jeopardy clause of the United States Constitution and Apprendi, 530

U.S. 466. See Petition at 9-18, 28-50. He also maintains that the court erred when it used

his 1987 conviction to increase his sentence because the 1987 conviction predates the

enactment of the HFO statute. See id. at 9. Collins raised these claims in his petition for

writ of prohibition, see Resp. Ex. M1, and the state appellate court denied the petition per

curiam on the merits, see Resp. Ex. M2.13

Accordingly, the Court will address the claims in accordance with the deferential

standard for federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication of these

claims was not contrary to clearly established federal law, did not involve an unreasonable

application of clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented in the state court proceedings.

Thus, Collins is not entitled to relief on the basis of these claims.

13 See Response at 42.

Nevertheless, even if the appellate court’s adjudication of these claims is not

entitled to deference, grounds two and four are still without merit. Florida Statutes section

775.084(1)(a) provides that the state circuit court may sentence a defendant to “an

extended term of imprisonment” as an HFO if the court finds that:

1. The defendant has previously been convicted of any

combination of two or more felonies in this state or other

qualified offenses.

2. The felony for which the defendant is to be sentenced was

committed:

a. While the defendant was serving a prison sentence

or other sentence, or court-ordered or lawfully imposed

supervision that is imposed as a result of a prior conviction for

a felony or other qualified offense; or

b. Within 5 years of the date of the conviction of the

defendant’s last prior felony or other qualified offense, or

within 5 years of the defendant’s release from a prison

sentence, probation, community control, control release,

conditional release, parole or court-ordered or lawfully

imposed supervision or other sentence that is imposed as a

result of a prior conviction for a felony or other qualified

offense, whichever is later.

Fla. Stat. § 775.084(1)(a) (2012).

A brief chronology relating to the circuit court’s imposition of the HFO sentence

follows. The State filed its Notice of Intent to Classify Defendant as a Habitual Felony

Offender on July 23, 2013. See Resp. Ex. B at 12; Sentencing Tr. at 4, 6. In the Notice,

the State asserted that it would seek an enhanced penalty (a term of imprisonment of ten

years) against Collins for the grand theft charge in case number 16-2013-CF-003339-

AXXX-MA pursuant to the HFO statute. See Resp. Ex. B at 12. The State relied on Collins’

two prior felony convictions (robbery conviction on February 13, 1987, and grand theft

conviction on January 13, 2012) to meet the statutory criteria for designation as an HFO.

See id. The State delivered by hand a copy of the Notice to Collins and his attorney on

July 23, 2013. See id. At the sentencing hearing, the State introduced certified copies of

Collins’ prior convictions as exhibits one and two. See Sentencing Tr. at 8. The State

described Collins as “a career thief,” and explained that the State filed the HFO notice

due to his extensive record. Id. at 18. Based upon testimony presented by the State,14 as

well as exhibits received into evidence, the court stated that Collins “is a[] habitual

offender as defined by Chapter 775 of the Florida Statutes,” and notified the parties that

it would proceed with the sentencing hearing under that law. Id. at 12. Defense counsel

asked the court “to consider not habitualizing” Collins since “he’s not a danger to the

community, and the nature of the charge being grand theft.” Id. at 14. Additionally, the

State argued that Collins had eleven prior felony convictions and had just been released

from prison when he committed the instant offense on April 6, 2013. See id. at 15, 17-18.

After argument, the court stated in pertinent part:

Mr. Collins, come stand beside your lawyer just a

moment. And as you make your way before the Court, I want

to say for purposes of the record, Ms. Stresing referenced her

representation of the defendant during the course of trial,

addressing a number of matters as best as possible, including

going through a procedure, and in all candor with you, it’s not

an easy thing to do, to ask a lawyer to go through a lengthy

receipt, but I think she did so very appropriately in an effort to

present the best possible legal defense for you, attacking the

value of the merchandise endeavored to be taken. And the

reason for that is very simple, you are caught dead to rights

on that video, it zooms in on your face at one point, you have

an elementary ruse of trying on shoes, you’re cramming

clothes and Gator caps and all this stuff into a suitcase, you

then go down to the toy section and the duffel bag you’re filling

is so full you can’t zip it, and you’re having to smash the bread

you’re trying to steal to try and close the bag. Perhaps it’s the

only line of defense she had on your behalf, but your lawyer

14 A fingerprint technician testified. See Sentencing Tr. at 8-12.

did everything possible to help you, and she’s a good lawyer.

The facts of this case and your guilt is self-evident.

You’re a[] habitual offender, you were just released

from prison for a grand theft. There is really no – there’s only

one possible outcome.

You’re adjudicated guilty of the crime of which you’ve

been convicted. I believe that was done at the time the verdict

was received. And as a[] habitual offender, it is the sentence

of this Court that you remain in the custody of the Duval

County sheriff, and by him delivered into the custody of the

Department of Corrections of the State of Florida, to be

confined within the Florida State Prison system for a term of

ten years.

Id. at 20-21. Thus, the record reflects that the State lawfully relied upon, and proved, two

of Collins’ prior felony convictions to classify him as an HFO.

Next, the Court turns to Collins’ Apprendi claim (that the judicial factfinding required

by the HFO statute violates his right to a trial by jury). “Other than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proven beyond a reasonable doubt.” Apprendi,

530 U.S. at 490 (emphasis added). Florida’s HFO designation is based entirely on the

existence of prior convictions. See Fla. Stat. § 775.084(1)(a); see also Dinkens v. State,

976 So. 2d 660, 662 (Fla. 1st DCA 2008) (holding “the habitual felony offender statute is

based solely on prior convictions and therefore does not require a jury determination

pursuant to Apprendi”). Accordingly, as Apprendi specifically exempts prior convictions

from its holding, Collins’ claim is without merit. Apprendi, 530 U.S. at 490; Lyons v. State,

292 So. 3d 906 (Fla. 1st DCA 2020) (per curiam) (citing Dinkens, 976 So. 2d at 662

(stating that the arguments that the findings in support of an HFO designation must be

made by a jury have been repeatedly rejected by Florida courts)).

Additionally, Collins’ claims that the HFO statutory provisions violate the

constitutional prohibitions against double jeopardy and ex post facto are without merit.

See Grant v. State, 770 So. 2d 655, 661-62 (Fla. 2000) (stating that “[a] habitual offender

sentence is not an additional penalty for an earlier crime; rather, it is an increased penalty

for the latest crime, which is an aggravated offense because of the repetition”); Raulerson

v. State, 609 So. 2d 1301 (Fla. 1992); Lyons, 292 So. 3d 906 (citing Tillman v. State, 609

So. 2d 1295, 1298 (Fla. 1992) (rejecting the argument that an HFO sentence violates the

constitutional protection against double jeopardy, and noting that an HFO sentence does

not create a new substantive offense, but merely prescribes a longer sentence for the

subsequent offenses which triggers the operation of the HFO statute)). As such, Collins

is not entitled to federal habeas relief as to grounds one, two and four.

B. Ground Three

As ground three, Collins asserts that the trial court erred when it denied his motions

for judgment of acquittal because the State failed to present a prima facie case as to the

value of the merchandise in his cart. See Petition at 19-22. Additionally, he maintains that

the trial court erred when it admitted an itemized receipt of the merchandise. See id. at

23. According to Collins, the trial court should not have permitted the State to prove the

grand theft charge with the itemized receipt because it was inadmissible hearsay. See id.

He states that neither Samantha Bray nor Xylon Stevenson (asset protection associates

who testified at trial) had personal knowledge of the value of the goods listed on the

receipt. See id. at 23-26. Collins, with the benefit of counsel, argued these issues on direct

appeal, see Resp. Exs. B4; B6; the State filed an Answer Brief, see Resp. Ex. B5; and,

the appellate court affirmed Collins’ conviction and sentence per curiam without a written

opinion as to these issues, see Resp. Ex. B7. Thus, to the extent Collins is raising, in

ground three, the same claims he presented on direct appeal, the claims are sufficiently

exhausted.

In its appellate brief, the State addressed the claims on the merits, see Resp. Ex.

B5 at 9-23, and therefore, the appellate court may have affirmed Collins’ conviction based

on the State’s argument. If the appellate court addressed the merits, the state court’s

adjudication of these claims is entitled to deference under AEDPA. After a review of the

record and the applicable law, the Court concludes that the state court’s adjudication of

these claims was not contrary to clearly established federal law and did not involve an

unreasonable application of clearly established federal law. Nor was the state court’s

adjudication based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Accordingly, Collins is not entitled to relief on

the basis of these claims.

Even assuming that the state court’s adjudication of these claims is not entitled to

deference, Collins’ claims are nevertheless without merit. The claims present issues

purely of state law not cognizable on federal habeas review. As noted above, the purpose

of a federal habeas proceeding is to review the lawfulness of Collins’ custody to determine

whether that custody is in violation of the Constitution or laws or treaties of the United

States. See Swarthout, 562 U.S. at 219; Estelle, 502 U.S. at 67-68. Thus, insofar as

Collins’ claims in ground three allege that the evidence was insufficient to establish the

value of the merchandise and that the receipt was inadmissible under Florida law, such

claims provide no basis for federal habeas relief.

Nevertheless, assuming the claims present sufficiently exhausted issues of federal

constitutional dimension,15 Collins’ claims are still without merit because the State

presented ample evidence to support Collins’ conviction for grand theft. The Due Process

Clause of the Fourteenth Amendment requires the State to prove each element of the

offense charged beyond a reasonable doubt. Thompson v. Nagle, 118 F.3d 1442, 1448

(11th Cir. 1997) (citing Jackson v. Virginia, 443 U.S. 307, 314 (1979)). In reviewing the

sufficiency of evidence, “this court must presume that conflicting inferences to be drawn

from the evidence were resolved by the jury in favor of the State.” Thompson, 118 F.3d

at 1448 (citing Machin v. Wainwright, 758 F.2d 1431, 1435 (11th Cir. 1985)). Jackson v.

Virginia “provides the federal due process benchmark for evidentiary sufficiency in

criminal cases.” Williams v. Sec’y for Dep’t of Corr., 395 F. App’x 524, 525 (11th Cir. 2010)

(per curiam) (citing Green v. Nelson, 595 F.3d 1245, 1252-53 (11th Cir. 2010)). In

accordance with this authority, the relevant question is whether any rational jury, after

viewing the evidence in the light most favorable to the prosecution, could have found the

essential elements of the charged offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 319.

After viewing the evidence in the light most favorable to the prosecution, a rational

trier of fact could have found Collins guilty of theft and that the value of the property taken

was $300 or more, but less than $20,000. Thus, there was sufficient evidence to support

the conviction for grand theft under Florida Statutes section 812.014(2)(c),16 as charged

15 See Response at 30-31.

16 Florida Statutes section 812.014 provides that a “person commits theft if he or

she knowingly obtains or uses, or endeavors to obtain or to use, the property of another

with intent to, either temporarily or permanently” deprive “the other person of a right to the

in the Information. Competent evidence of the elements of the offense was introduced at

trial, and no due process violation occurred. The jury was entitled to believe the State

witnesses’ accounts of what happened on the day in question. See Tr. at 152-67

(Samantha Bray’s testimony); 168-93 (Xylon Stevenson’s testimony). Additionally, the

jury watched the surveillance videotape during the trial and saw photographs, and

therefore was entitled to make its own determination as to what was depicted on the

videotape and in the photographs. Given the record, the trial court did not err when it

admitted the itemized receipt into evidence, see id. at 176, and denied Collins’ motions

for judgment of acquittal, see id. at 204, 213.17 Therefore, Collins is not entitled to federal

habeas relief as to ground three.

property or a benefit from the property” or appropriate “the property to his or her own use

or to the use of any person not entitled to the use of the property.” Fla. Stat. §

812.014(1)(a),(b) (2012). The statute states it is “grand theft of the third degree and a

felony of the third degree” if the property stolen is valued at $300 or more, but less than

$20,000. Fla. Stat. § 812.014(2)(c)1-3; see Resp. Ex. B1 at 46, Judgment.

17 The circuit court denied Collins’ Rule 3.850 motion as to his ineffectiveness claim

relating to the admission of a photograph, stating in pertinent part:

[T]he State introduced extensive evidence of [Collins’] guilt.

Franqui v. State, 59 So. 3d 82, 98 (Fla. 2011). The Walmart

Asset Protection Officers observed [Collins] through

surveillance cameras placing multiple items in a suitcase and

duffel bag and watched him attempt to exit the store without

paying for the items. (Ex. D at 155-59, 163-64, 169-73.)

Notably, the State played this video footage for the jury. (Ex.

D at 156-59.) One of the Asset Protection Officers observed a

cashier scan the sixty-seven items recovered from [Collins] at

a cash register and later physical[ly] arranged the items for a

photograph. (Ex. D at 174-79, 180, 182.) Even if the

photograph was not introduced, Mr. Stevenson’s testimony of

his firsthand knowledge and the receipt would have been

sufficient to establish the items stolen and their worth.

Resp. Ex. E1 at 30.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Collins seeks issuance of a certificate of appealability, the undersigned opines

that a certificate of appealability is not warranted. The Court should issue a certificate of

appealability only if the petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial showing, Collins

“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)).

Where a district court has rejected a petitioner’s constitutional claims on the merits,

the petitioner must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484.

However, when the district court has rejected a claim on procedural grounds, the

petitioner must show that “jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED WITH

PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Petition and

dismissing this case with prejudice.

3. If Collins appeals the denial of the Petition, the Court denies a certificate of

appealability. Because the Court has determined that a certificate of appealability is not

warranted, the Clerk shall terminate from the pending motions report any motion to

proceed on appeal as a pauper that may be filed in this case. Such termination shall serve

as a denial of the motion.

4. The Clerk of the Court is directed to close this case and terminate any

pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 6th day of October, 2020.

United States District Judge

sc 10/6

James L. Collins, Jr., FDOC #855928

Counsel of Record

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