# Kliem v. Secretary, Department of Corrections (Lee County)

> District Court, M.D. Florida · November 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10106266

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** November 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10106266

## How later opinions describe it (automated extraction)

- explaining that it is “beyond debate” that a state post-conviction court’s failure to conduct an evidentiary hearing on a post-conviction motion does not constitute a cognizable claim for habeas relief

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

STANLEY R. KLIEM,

Petitioner,

v. Case No: 2:17-cv-330-FtM-66MRM

SECRETARY, DEPARTMENT OF
CORRECTIONS and ATTORNEY
GENERAL, STATE OF FLORIDA,

Respondents.

ORDER
Stanley Kliem timely petitions the Court for a Writ of Habeas Corpus under
28 U.S.C. § 2254. (Doc. 1). Respondent filed a response (Doc. 9), and Petitioner
did not reply. For the reasons stated below, the petition for Writ of Habeas Corpus
(Doc. 1) is DENIED.
BACKGROUND
The State of Florida charged Petitioner by information with three counts:
(I) Second Degree Murder under Fla. Stat. §§ 782.04(2), 777.011; (II) Burglary of a
Dwelling under Fla. Stat. §§ 810.02, 777.011; and (III) Grand Theft under Fla. Stat.
§ 812.014. (Doc. 10-1, Ex. 1, Vol. 1 at 7-8). A jury convicted Petitioner of the
lesser included offense of manslaughter, burglary, and grand theft. (Id. at 60-61).
The trial court sentenced Petitioner to an aggregate of 30 years’ imprisonment as
follows: Fifteen (15) years’ imprisonment for manslaughter; fifteen years for
burglary of a dwelling, to run consecutive to the 15-year burglary sentence; and five
years for the grand theft count, to run concurrent to the sentences imposed for the
manslaughter and burglary. (Id. at 125).
On direct appeal to the Florida Second District Court of Appeal (“Second

DCA”), Petitioner’s appellate counsel raised two challenges as to Petitioner’s
convictions: (1) a challenge to the State’s utilization of a peremptory strike; and (2)
the trial court denying a motion for mistrial based on the State improperly phrasing
a question during its direct examination in violation of a ruling in limine. (Doc. 11-
6, Ex. 2 at 11–12). The Second DCA affirmed Petitioner’s convictions and
sentences per curiam. (Doc. 11-6, Ex. 4).

Petitioner then filed several post-conviction motions in the Florida State
courts. Petitioner filed his first petition for a writ of habeas corpus in the Second
DCA, raising four grounds of ineffective assistance of state appellate counsel, two of
which challenged the language of the manslaughter jury instruction charged to the
jury. (Doc. 11-6, Ex. 6). The Second DCA denied this petition per curiam. (Id.,
Ex. 7). Petitioner next moved under Florida Rule of Criminal Procedure 3.800(a) to
correct an illegal sentence, arguing his consecutive sentence for Count II (burglary

of a dwelling) arose from the same criminal event as Count I (manslaughter). (Id.,
Ex. 8). The post-conviction court summarily denied that motion. (Id., Ex. 10).
Petitioner appealed that denial; but, the Second DCA once again affirmed per
curiam. (Id., Ex. 11).
Petitioner then filed a motion for post-conviction relief pursuant to Florida
Rule of Criminal Procedure 3.850, alleging that his trial counsel was ineffective for
failing to file motions: (1) to suppress certain evidence; (2) for judgment of acquittal
as to the grand theft count; and (3) to disqualify the trial judge. (Doc. 11-6, Ex. 13).
The post-conviction court denied that petition. (Doc. 11-7, at Ex. 16). He filed a

second pro se petition for writ of habeas corpus, which the Second DCA dismissed as
untimely and successive. (Doc. 11-8, Ex. 21).
After exhausting all these avenues, Petitioner now turns to federal court and
Respondent cedes that his petition is timely. (See Doc. 9 at 6).
STANDARD OF REVIEW
Because Kliem filed his petition after the effective date of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214 (1996), the AEDPA governs his petition. Abdul-Kabir v. Quarterman,
550 U.S. 233, 246 (2007). Review under the AEDPA is greatly circumscribed and
highly deferential to the state courts. Alston v. Fla. Dep’t of Corrs., 610 F.3d 1318,
1325 (11th Cir. 2010) (citations omitted). The AEDPA modified a federal court’s
review of habeas corpus petitions “to ensure that state-court convictions are given
effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 692 (2002).

Accordingly, these principles apply to the petition here.
I. Deference to State Court Decisions
Federal courts may not grant relief on a claim that a state court has
adjudicated on the merits unless the state court’s adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); 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.” Id.
(internal quotations and citations omitted).
“[U]nless the state court clearly states that its decision was based solely on a
state procedural rule [the Court] will presume that the state court has rendered an
adjudication on the merits when the petitioner’s claim ‘is the same claim rejected’
by the court.” Childers v. Floyd, 642 F.3d 953, 969 (11th Cir. 2011) (quoting Early

v. Packer, 537 U.S. 3, 8 (2002)), vacated, 568 U.S. 1190 (2013), reinstated, 736 F.3d
1331 (11th Cir. 2013). As such, a state court’s summary rejection of a claim—even
without explanation—qualifies as an adjudication on the merits warranting a
federal court’s deference. Id. at 967-68; see also Ferguson v. Culliver, 527 F.3d
1144, 1146 (11th Cir. 2008).
“A legal principle is ‘clearly established’ within the meaning of [§ 2254] only

when it is embodied in a holding of [the United States Supreme] Court.” Thaler v.
Haynes, 559 U.S. 43, 47 (2010); see also Williams v. Taylor, 529 U.S. 362, 412
(2000) (“[T]he phrase ‘clearly established Federal law, as determined by [the
Supreme] Court’ refers to the holdings, as opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the relevant state-court decision.”). And a state
court unreasonably applies federal law “when it identifies the correct legal rule from
Supreme Court case law but unreasonably applies that rule to the facts of the
petitioner’s case or when it unreasonably extends, or unreasonably declines to
extend, a legal principle from Supreme Court case law to a new context.” Ponticelli
v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271, 1291 (11th Cir. 2012) (internal citations

and quotations omitted).
In determining whether the state court’s application of federal law was
unreasonable, the Court conducts a two-step analysis as set forth in Harrington v.
Richter, 562 U.S. 86 (2011). First, Ҥ 2254(d) requires a habeas court to determine
what arguments or theories supported, or could have supported, the state-court
decision”; and second, the Court must ask “whether it is possible fairminded [sic]

jurists could disagree that those arguments or theories are inconsistent with a prior
decision of” the Supreme Court. Harrington, 562 U.S. at 102 (citation omitted).
Finally, “a determination of a factual issue made by a State court shall be presumed
to be correct.” Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir. 2005) (citing 28
U.S.C. § 2254(e)).
With these principles in mind, the Court now turns to Petitioner’s arguments.
DISCUSSION

Petitioner raises two grounds in his petition. In his own words, they are:
GROUND ONE: “THE LOWER STATE TRIBUNAL
ERRED WHEN IT DENIED ISSUE “ONE” OF THE
PETITIONER’S RULE 3.850 MOTION WITHOUT
CONDUCTING AN EVIDENTIARY HEARING”;

GROUND TWO: Whether Appellate Counsel was
ineffective in failing to raise that the manslaughter-by-act
jury instruction did not include an essential element that
the act(s) that caused the victim’s death were
“intentionally” committed by the Defendant constituted
fundamental error, and thus, deprived Petitioner of his
right to an impartial and fair trial as guaranteed by the
Sixth Amendment to the United States Constitution.

(Doc. 1 at 15, 20) (footnote omitted, quotation marks in original). The Court will
discuss each claim in turn.
I. Ground One Fails to State a Cognizable Claim.
Although framed as an ineffective-assistance-of-counsel claim, the heart of
Ground One is Petitioner’s challenge to the post-conviction court’s failure to conduct
an evidentiary hearing on one of his ineffective assistance of counsel claims. He
asserts the following:
[T]he issue raised in [Petitioner’s] state post-conviction
motion, with regards to counsel’s failure to fully litigate his
fourth and fifth amendment claim through filing a legally
sufficient motion to suppress his post-arrest statements,
turned not on whether the motion—had it been filed—
would have succeeded, but rather, whether he was entitled
to an evidentiary hearing and proper inquiry into why
counsel failed to fully and properly litigate . . . an issue.

(Doc. 1 at 15) (emphasis added).
To leave no doubt that Petitioner is challenging the procedure utilized by the
post-conviction court, he further alleges that:
[T]he state postconviction court in this case, [sic]
unreasonably applied settled federal law in its adjudication
on the Petitioner’s postconviction motion without
conducting an evidentiary hearing on the claim when the
record did not conclusively refute the Petitioner’s claim.

(Doc. 1 at 18) (emphasis added). Thus, as Respondent correctly points out,
Petitioner “is actually challenging the state post-conviction court’s decision to deny
the Rule 3.850 motion without holding an evidentiary hearing.” (Doc. 9 at 11-12).
Ground One therefore fails because it is a challenge to a proceeding collateral
to Petitioner’s confinement and not a challenge to the confinement itself.
See Carroll v. Sec’y, Dep’t of Corr., 574 F.3d 1354, 1365 (11th Cir. 2009). The

Eleventh Circuit has repeatedly held that a prisoner’s challenge to the process
afforded him in a state post-conviction proceeding, like a state post-conviction
court’s failure to hold an evidentiary hearing on the prisoner’s post-conviction
motion, does not constitute a cognizable claim for habeas corpus relief. See id.
(citing Anderson v. Sec’y for Dept. of Corr., 462 F.3d 1319, 1330 (11th Cir. 2006))
(denying habeas petition “to the extent it rests on the state court’s failure to grant

an evidentiary hearing under Florida law”); see also Anderson, 462 F.3d at 1330
(explaining that it is “beyond debate” that a state post-conviction court’s failure to
conduct an evidentiary hearing on a post-conviction motion does not constitute a
cognizable claim for habeas relief); cf. Herron v. Sec’y, Dep’t of Corr., No. 8:11-cv-
1483-T-27TGW, 2014 WL 4540257, at *7 (M.D. Fla. Sept. 11, 2014) (collecting
cases).
Because Ground One of Petitioner’s habeas corpus petition does not challenge

Petitioner’s confinement and instead challenges the process the state court afforded
him in the collateral post-conviction proceedings, it does not warrant federal habeas
relief. Thus, Ground One fails as a matter of law.
II. Petitioner’s Claim of Ineffective Appellate Counsel Also Fails.
A. Petitioner’s Claim is Procedurally Barred.
In Ground Two, Petitioner alleges that his Florida state appellate counsel

was ineffective for failing to challenge the manslaughter jury instruction on appeal.
(See Doc. 1 at 20). Specifically, Petitioner argues:
Appellate Counsel was ineffective in failing to raise that
the manslaughter-by-act jury instruction did not include
an essential element that the act(s) that caused the victim’s
death were “intentionally” committed by the Defendant
constituted fundamental error and this deprived Petitioner
of his right to an impartial and fair trial as guaranteed by
the Sixth Amended to the United States Constitution.

(Id.). But this argument also fails.
Petitioner cedes that he raised this same argument in his second successive
petition in state court. (Doc. 1 at 20 n.4). Respondent argues that Ground Two is
now procedurally barred because the Second DCA dismissed this argument as
untimely and successive under Florida Rule of Appellate Procedure 9.141(d)(5).
(Doc. 9 at 14). This Court agrees.
Where, as here, “a return to state court would be futile—because the
petitioner’s claims would clearly be barred by state procedural rules—a federal
court can forego the needless judicial ping-pong and treat unexhausted claims as
procedurally defaulted.” Hittson v. GDCP Warden, 759 F.3d 1210, 1260 n.56 (11th
Cir. 2014). Moreover, absent exceptions that do not apply to Petitioner’s claim,
“[f]ederal courts may not review a claim procedurally defaulted under state law if
the last state court to review the claim states clearly and expressly that its
judgment rests on a procedural bar, and the bar presents an independent and
adequate state ground for denying relief.” Hill v. Jones, 81 F.3d 1015, 1022 (11th
Cir. 1996) (citing Harris v. Reed, 489 U.S. 255, 260-61 (1989)).

Here, the Second DCA stated, in no uncertain terms, that it dismissed
Petitioner’s ineffective assistance of appellate counsel claim as “untimely and
successive” under Florida Rule of Appellate Procedure 9.141(d)(5). (Doc. 11-8, Ex.
21). Because Petitioner’s claim was untimely under that rule, any remand to state
court would be futile. And because Petitioner procedurally defaulted on his
ineffective-assistance claim, this Court may not review that Second DCA’s denial,

which clearly rests on an adequate and independent state ground. Therefore,
Petitioner’s argument here is procedurally barred.
B. The Manslaughter Jury Instruction Was Not Fundamental Error.
Even assuming, for the sake of argument, that Petitioner’s claim was not
procedurally barred, the Eleventh Circuit has rejected on the merits a substantially
similar argument before the Court. “To succeed on an ineffective assistance of
counsel claim, a defendant must establish (1) ‘that counsel’s performance was

deficient’ and (2) ‘that the deficient performance prejudiced the defense.’”
Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017) (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)). But “[u]nder Florida law, if a defendant,”
like Petitioner, “fails to object to a jury instruction at trial, the instruction may be
challenged on appeal only if it amounts to ‘fundamental error.’” Id. at 1296 (citing
State v. Delva, 575 So. 2d 643, 644 (Fla. 1991)). “That means unless the
unpreserved jury instruction error that appellate counsel failed to raise is
fundamental error, the Florida appellate courts would not have granted relief even
if counsel had raised it on appeal.” Id. at 1297. It follows that appellate counsel

“will not be held to have performed deficiently for failing to perform a futile act, one
that would not have gotten [Petitioner] any relief.” Id. Moreover, “a petitioner
cannot show prejudice from the failure of appellate counsel to raise an issue that
would not have been considered on appeal because it was not raised in the trial
court.” Id. Lastly, this Court must defer to the Second DCA on its determination
of whether the manslaughter jury instruction was fundamental error. See id. at

1297-99.
Here, Petitioner’s trial counsel did not object to the jury instruction at trial,
his appellate counsel did not challenge the manslaughter jury instruction in the
direct appeal, and, even more, the Second DCA squarely rejected this argument in
Petitioner’s first petition for writ of habeas corpus. Thus, as Respondent correctly
notes, the Second DCA effectively found that the jury instruction did not constitute
fundamental error. (See Doc. 11-8, Ex. 21). Indeed, the Court must afford the

Second DCA “the benefit of the doubt” that it would have afforded Petitioner relief
had the jury instruction, in fact, constituted fundamental error. Pinkney, 876 F.3d
at 1298. But the Second DCA did not so hold. Thus, Petitioner’s appellate counsel
could not have performed deficiently for failing to raise a futile argument.
Lastly, even if the Court were to reach the merits of Petitioner’s challenge to
the trial court’s manslaughter jury instruction, the outcome would be no different.
Petitioner argues that it was fundamental error to omit language concerning intent
from his jury instruction. (Doc. 1 at 22). Specifically, Petitioner asserts that
under Houston v. State, 87 So. 3d 1, 3 (Fla. 2d DCA 2011), a conviction for

manslaughter-by-act requires an intentional act that causes death. (Doc. 1 at 22
n.6). The logical conclusion, Petitioner contends, is that appellate counsel was
ineffective for failing to make this argument on appeal. But the Florida standard
jury instruction for manslaughter at the time of Petitioner’s trial lacked the
“intentional act” language:
To prove the crime of Manslaughter, the State must prove
the following two elements beyond a reasonable doubt:

1. Merrily Davis is dead; and

2. The Defendant’s acts or act caused the death of
Merrily Davis, or the death of Merrily Davis was
caused by the culpable negligence of the defendant.

(Doc. 11-5, Ex. 1, Vol. 8 at 1535).
It was not until approximately five months after Petitioner’s trial, on October
13, 2011, that the Florida Supreme Court changed the manslaughter-by-act jury
instructions to read:
To prove the crime of Manslaughter, the State must prove
the following two elements beyond a reasonable doubt:

(1) (Victim) is dead.

2.a. (Defendant) intentionally committed an act or acts
that caused the death of (victim).

In Re Amendments to Standard Jury Instructions in Criminal Cases-Instructions
7.7, 75 So. 3d 210, 211 (Fla. 2011) (emphasis added).
The jury returned Petitioner’s verdict on April 5, 2011. (Doc. 10-1, Ex. 1,
Vol. 1 at 60-61). Petitioner’s confused argument regarding the intent element of
his jury instructions therefore fails because the intent language was not part of the

manslaughter jury instruction until more than five months after Petitioner’s
verdict.1 Petitioner’s appellate counsel, thus, could not have been ineffective for
failing to raise the issue because the standard jury instruction Petitioner complains
should have been charged to the jury did not even exist at the time of his conviction.
See, e.g., Mitchell v. Sec’y, Dept. of Corr., 5:17-cv-02-Oc-33PRL, 2019 WL 5802545,
at *5 (M.D. Fla. Nov. 7, 2019) (holding that “[p]etitioner’s argument regarding the

language in the manslaughter jury instructions is without merit, and therefore
appellate counsel was not deficient for failing to raise it”). As such, Petitioner has
failed to demonstrate that the state court’s rejection of his claim was contrary to, or
an unreasonable application of Strickland, or an unreasonable determination of
facts.
Accordingly, Petitioner cannot establish prejudice under Strickland and relief
is not available under Ground Two.

DENIAL OF CERITIFCATE OF APPEALABILITY
Petitioner must secure a Certificate of Appealability before appealing the
dismissal of his habeas corpus action. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P.

1 Even more, Houston, the Second DCA case cited by Petitioner as purported support
for his argument that the jury was not instructed correctly as to manslaughter,
involved attempted manslaughter and, in all events, was not decided until after his
trial. See Houston, 87 So. 3d at 1.
22(b)(1). The Court does not issue a certificate of appealability to Petitioner here.
A prisoner seeking to appeal a district court's final order denying his petition for
writ of habeas corpus has no absolute entitlement to appeal but must obtain a
certificate of appealability (“COA”). 28 U.S.C. § 2253(¢)(1); Harbison v. Bell, 556
U.S. 180, 184 (2009). “A [COA] may issue... only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(¢)(2).
To make such a showing, petitioner “must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004), or, that “the issues presented
were adequate to deserve encouragement to proceed further,” Miller-El v. Cockrell,
587 U.S. 322, 335-36 (2003) (citations omitted). Petitioner has not made the
requisite showing here. Finally, because Petitioner may not have a certificate of
appealability, he may not appeal in forma pauperis.
Accordingly, it is now ORDERED:
1. Petitioner Stanley Kliem’s Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254 is DENIED.
2. The Clerk of Court is DIRECTED to enter judgment accordingly,
terminate any pending motions, and to close the file.
ORDERED at Fort Myers, Florida, November 4, 2020.
Lh. A □

JOHN L. BADALAMENTI
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106266. Public record. Not legal advice.