Opinion

Graham v. Secretary, DOC (Lee County)

Court
District Court, M.D. Florida
Filed
Nov 25, 2020
Cited by
0 cases
Authority
More cited than 19.8%

“[A] state- court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”

How later courts described this case

  • “[A] state- court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JOHNNIE M. GRAHAM, JR.,

Petitioner,

v. Case No: 2:16-cv-808-FtM-29NPM

SECRETARY, DOC and FLORIDA

ATTORNEY GENERAL,

Respondents.

/

OPINION AND ORDER

Before the Court is Petitioner Johnnie M. Graham, Jr.’s

Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a

Person in State Custody (Doc. # 1). Graham challenges his 2000

conviction for Second Degree Murder, for which he received a life

sentence from the Twentieth Judicial Circuit Court, in and for Lee

County, Florida. The life sentence was later vacated, and Graham

was re-sentenced to 34.5 years imprisonment. Graham raises twelve

grounds. Grounds 1 through 10 allege ineffective assistance of

counsel at trial. Ground 11 alleges the trial court erred in its

instruction of the lesser included offense of manslaughter. And

Ground 12 alleges Graham was prejudiced by the admission of

evidence under a state evidentiary rule.

Respondent filed a Response (Doc. #24), and Graham filed a

Reply (Doc. #30). In his Reply, Graham concedes that Grounds 1 –

9 and 11 were not exhausted, and he concedes he is not entitled to

relief for Ground 12. Ground 10 is thus the only contested ground.

In an earlier order, the Court found the Petition to be timely

filed. (Doc. #19). Graham does not request an evidentiary

hearing, and the Court finds the facts are well-developed in the

record, so an evidentiary hearing is not warranted. Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); 28 U.S.C. § 2254(e)(2).

I. Procedural Background

On October 9, 1998, Graham was charged by criminal information

with the murder of his former girlfriend, Michelle Wright. (Doc.

#25-2 at 8). Graham pled not guilty through his trial attorney,

Mark W. Ahlbrand. (Doc. #25-2 at 10). Graham’s trial started on

June 19, 2000, and the jury found Graham guilty of Second Degree

Murder by unanimous verdict seven days later. (Doc. #25-2 at 45).

After a presentence investigation and a sentencing hearing, Judge

Thomas S. Reese sentenced Graham to imprisonment for a term of

natural life. (Doc. #25-2 at 100). Graham, through appointed

counsel, appealed his conviction, and Florida’s Second District

Court of Appeal (“2nd DCA”) affirmed per curiam without a written

opinion. (Doc. #25-4 at 62).

While his direct appeal was pending, Graham filed a pro se

motion to correct his sentence under Florida Rule of Criminal

Procedure 3.800. (Doc. #25-4 at 66). The State conceded that the

life sentence was erroneous and requested the sentence be corrected

to 417.2 months. (Doc. #25-4 at 74-75). But the trial court

denied the motion. (Doc. #25-4 at 91). Graham then filed a pro

se Petition for Habeas Corpus in the 2nd DCA, arguing his appellate

counsel’s failure to raise the sentencing issue deprived him of

his right to effective assistance of counsel. (Doc. #25-4 at

100). The 2nd DCA reversed Graham’s life sentence and remanded

to the trial court for resentencing. (Doc. #25-4 at 416-17). On

remand, the trial court sentenced Graham to 417 months and 6 days.

(Doc. #25-4 at 441). Graham appealed the new sentence, and the

2nd DCA affirmed. (Doc. #25-4 at 481).

On August 9, 2012, Graham constructively filed a Motion to

Correct Illegal Sentence. (Doc. #25-14 at 35). The court

summarily denied the motion, (Doc. #25-14 at 50), and the 2nd DCA

affirmed (Doc. #25-14 at 66).

On August 13, 2013, Graham filed a Motion to Supplement/Add

Additional Grounds to the Original 3.850 Motion. (Doc. #25-5 at

36). Graham attached to the motion evidence that he

constructively filed a motion for postconviction relief on

September 13, 2004, by delivering it to prison officials for

mailing, though it was never filed with the court. (Doc. #25-5

at 42). The postconviction court allowed Graham to enlarge issues

raised in his original motion, disallowed any new claims because

Graham failed to raise them within Rule 3.850’s two-year time limit

for amendments, and ordered the State to respond. (Doc. #25-5 at

88-89). After substantial briefing, an evidentiary hearing, and

Graham’s voluntary dismissal of one ground, the postconviction

court denied the motion. (Doc. #25-11 at 478 et seq.). Graham

appealed—but limited his appeal to a single ground—and the 2nd DCA

affirmed per curiam without a written opinion. (Doc. #25-14).

II. Applicable Habeas Law

a. AEDPA

The Antiterrorism Effective Death Penalty Act (AEDPA) governs

a state prisoner’s petition for habeas corpus relief. 28 U.S.C.

§ 2254. Relief may only be granted on a claim adjudicated on the

merits in state court if the adjudication:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court

proceeding.

28 U.S.C. § 2254(d). This standard is both mandatory and difficult

to meet. White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state

court’s violation of state law is not enough to show that a

petitioner is in custody in violation of the “Constitution or laws

or treaties of the United States.” 28 U.S.C. § 2254(a); Wilson

v. Corcoran, 562 U.S. 1, 16 (2010).

“Clearly established federal law” consists of the governing

legal principles set forth in the decisions of the United States

Supreme Court when the state court issued its decision. White,

134 S. Ct. at 1702; Casey v. Musladin, 549 U.S. 70, 74 (2006)

(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Habeas

relief is appropriate only if the state court decision was

“contrary to, or an unreasonable application of,” that federal

law. 28 U.S.C. § 2254(d)(1). A decision is “contrary to”

clearly established federal law if the state court either: (1)

applied a rule that contradicts the governing law set forth by

Supreme Court case law; or (2) reached a different result from the

Supreme Court when faced with materially indistinguishable facts.

Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v.

Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an “unreasonable application”

of Supreme Court precedent it the state court correctly identifies

the governing legal principle, but applies it to the facts of the

petitioner’s case in an objectively unreasonable manner, Brown v.

Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526,

531 (11th Cir. 2000), or “if the state court either unreasonably

extends a legal principle from [Supreme Court] precedent to a new

context where it should not apply or unreasonably refuses to extend

that principle to a new context where it should apply.” Bottoson,

234 F.3d at 531 (quoting Williams, 529 U.S. at 406). “A state

court’s determination that a claim lacks merit precludes federal

habeas relief so long as fair-minded jurists could disagree on the

correctness of the state court’s decision.” Harrington v.

Richter, 562 U.S. 86, 101 (2011). “[T]his standard is difficult

to meet because it was meant to be.” Sexton v. Beaudreaux, 138

S. Ct. 2555, 2558 (2018).

Finally, when reviewing a claim under 28 U.S.C. § 2254(d), a

federal court must remember that any “determination of a factual

issue made by a State court shall be presumed to be correct[,]”

and the petitioner bears “the burden of rebutting the presumption

of correctness by clear and convincing evidence.” 28 U.S.C. §

2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A] state-

court factual determination is not unreasonable merely because the

federal habeas court would have reached a different conclusion in

the first instance.”).

b. Exhaustion and Procedural Default

AEDPA precludes federal courts, absent exceptional

circumstances, from granting habeas relief unless a petitioner has

exhausted all means of relief available under state law. Failure

to exhaust occurs “when a petitioner has not ‘fairly presented’

every issue raised in his federal petition to the state’s highest

court, either on direct appeal or on collateral review.” Pope v.

Sec’y for Dep’t. of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012)

(quoting Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010)).

The petitioner must apprise the state court of the federal

constitutional issue, not just the underlying facts of the claim

or a similar state law claim. Snowden v. Singletary, 135 F.3d

732, 735 (11th Cir. 1998).

Procedural defaults generally arise in two ways:

(1) where the state court correctly applies a procedural

default principle of state law to arrive at the

conclusion that the petitioner’s federal claims are

barred; or (2) where the petitioner never raised the

claim in state court, and it is obvious that the state

court would hold it to be procedurally barred if it were

raised now.

Cortes v. Gladish, 216 F. App’x 897, 899 (11th Cir. 2007). A

federal habeas court may only consider a procedurally barred claim

if (1) petitioner shows “adequate cause and actual prejudice,” or

(2) if “the failure to consider the claim would result in a

fundamental miscarriage of justice.” Id. (citing Coleman v.

Thompson, 501 U.S. 722, 749-50 (1991)).

III. Analysis

a. Grounds 1-9

Respondent argues Petitioner’s first nine grounds are

procedurally barred because he voluntarily dismissed Ground 1

before the postconviction court considered it and he abandoned

Grounds 2-9 by failing to address them in his appeal. In reply,

Petitioner concedes that Grounds 1-9 are procedurally barred.

(Doc. #30 at 1-2). The Court agrees. In Florida, when a

petitioner receives an evidentiary hearing in a Rule 3.850

challenge, failure to address issues in an appellate brief

constitutes a waiver. Cortes, 216 F. App’x at 899. Graham’s

3.850 appeal presented one issue: “Whether the post conviction

court erred by denying Ground 10 in Appellant’s 3.850 motion on

the doctrine of laches.” (Doc. #25-14 at 5). Grounds 1-9 are

procedurally barred, and this Court cannot reach their merits.

b. Ground 10

Graham argues he was denied effective assistance of counsel

because his trial counsel, Mark Ahlbrand, did not call him to

testify. (Doc. #1 at 22). Graham claims he told Ahlbrand he

wanted to testify, even after being advised it would open the door

to a prior felony conviction. (Id.). But after preparing Graham

to testify and referencing Graham’s expected testimony in his

opening statement, Ahlbrand rested his case before calling Graham

to the stand. (Doc. #25-11 at 484).

After an evidentiary hearing, the postconviction court denied

Ground 10 on the merits and found that it was barred by laches.

(Doc. #25-11 at 483-93). When a state court rules in the

alternative, denying a petitioner’s claim on the merits and on an

independent state procedural ground, “the federal court should

apply the state procedural bar and decline to reach the merits of

the claim.” Waldrip v. Humphrey, 532 F. App’x 878, 883 (11th Cir.

2013) (quoting Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.

1994)). This court may not reconsider a “federal issue on federal

habeas as long as the state court explicitly invokes a state

procedural bar rule as a separate bases for decision.” Harris v.

Reed, 489 U.S. 255, 264 n.10 (1989).

The postconviction court explicitly invoked Florida’s laches

doctrine in finding Graham’s 3.850 motion procedurally barred:

16. Finally, the State has also raised the doctrine of

laches with respect to the entirety of Defendant's

postconviction motion. As discussed in prior orders and

briefly above, Defendant appears to have initially

attempted to file this postconviction motion in 2004.

However, the motion did not appear in the record until

2013, when he attempted to amend his postconviction

motion and attached a copy of the original motion to his

pleading.

17. Laches may bar a postconviction claim if the State

proves 1) that the defendant failed to exercise due

diligence in pursuing his motion and 2) that the State

was prejudiced by the resulting delay. See McCray v.

State, 699 So.2d 1366 (Fla. 1997); see also Xiques v.

Dugger, 571 So.2d 3 (Fla. 2d DCA 1990). Laches has been

applied to postconviction proceedings when "it is

obvious that the state has been manifestly prejudiced

and no reason for an extraordinary delay has been

provided." Id. at 1368. The State can be prejudiced as

time goes by because "records are destroyed, essential

evidence may become tainted or disappear, memories of

witnesses fade, and witnesses may die or be otherwise

unavailable." Id. "[T]he policy rationale for allowing

a laches defense is important - to acknowledge the

finality of convictions at some point which, in turn,

will foster confidence in the judicial system." Bartz v.

State, 740 So.2d 1243 (Fla. 3d DCA 1999).

18. Under Rule 3.850, Defendant needed to file his motion

within two years of his judgment and sentence becoming

final. The Second District Court of Appeal affirmed his

conviction and sentence and its mandate issued on

September 19, 2002. The mail log attached to Defendant's

2013 filing shows that he gave his motion to prison

officials for mailing on September 13, 2004, which was

within the two-year deadline. This motion was never

filed and the Clerk has no record of ever receiving the

original motion. Thereafter, Defendant did not follow up

on his motion until 2007 when he filed a notice of

inquiry. Attached to this order is a copy of the 2007

notice of inquiry, marked as exhibit I. Four years later,

in 2011, he filed a notice of inquiry for a "motion for

post conviction relief' which had been "pending in this

Court for a long time." Attached to this order is a copy

of the 2011 notice of inquiry, marked as exhibit J.

Finally, in 2013, he attempted to file an amendment to

his 3.850 motion, and he attached a copy of his original

motion to his amendment along with a copy of the jail

mail log. The Court struck the amendment for being

untimely but directed the State to respond to the 2004

motion.

19. The Court finds that Defendant did not exercise due

diligence in the pursuit of his postconviction motion.

The record is replete with other filings from Defendant

regarding his motion to correct sentence and appeals; it

is clear that he was familiar with the postconviction

process and knew the correct address to send his

pleadings in order to have them filed. At the hearing,

Defendant testified that his main focus after being

resentenced was his 3.850 motion, and yet, after being

resentenced in 2005, he only inquired on the status of

his motion twice and tried to add an additional claim

almost a decade later. According to Defendant's

testimony at the hearing, the clerk responded to his

2004 notice of inquiry by sending him forms regarding

indigency status, perhaps because there was no status

update to be given on a non-existent motion. Despite

this unresponsive answer, Defendant did not file another

notice of inquiry for four years. The 2011 notice of

inquiry asks for the status on a "motion for

postconviction relief," without specifically calling it

a 3.850 motion. Indeed, the clerk who responded to the

notice sent Defendant copies of documents relating to

his 3.800(a) motion from 2005. Although this would have

been yet another unsatisfactory answer to a notice of

inquiry about a 3.850 motion, Defendant waited another

two years to file an amendment to his 3.850 motion, at

which point the original motion was finally filed into

the record as an attachment. Defendant insisted at trial

that he was always worried about his 3.850 motion and

always pursuing it. However, this claim is simply not

consistent with the time that passed between Defendant's

inquiries on the status of his motion.

20. In order for laches to apply, the State must also

prove that it was prejudiced by the delay. It is easy to

conclude that prejudice exists here. This case presents

a textbook example of why Rule 3.850 motions must be

filed within a certain time limit: the key witness to

confirming or refuting most of Defendant's claims, his

trial attorney Mark Ahlbrand, passed away in 2013.

Without his testimony, the State had no evidence to

present as to why he did not call Defendant to trial,

despite agreeing that he would testify and actually

helping him prepare to testify. The State was unable to

argue that any of Defendant's other claims were the

result of trial strategy either. The Court was able to

analyze most of Defendant's sufficient claims after an

excessive investment of judicial resources, including a

painstaking review of the enormous record in this case,

but most claims could have been resolved with just a few

minutes of testimony from Mr. Ahlbrand. This is the exact

situation McCray warns of - where evidence and witnesses

are no longer available due to the long delay in pursing

the motion, leading to frustration of the proceedings.

The policy concerns expressed in Bartz, 740 So.2d 1243,

are upheld by the application of laches to motions such

as this.

21. The Court finds that Defendant did not exercise

requisite due diligence in prosecuting his 3.850

postconviction motion and that the State was prejudiced

by the delay that resulted. The doctrine of laches is

thus applicable to this case, and the Court denies the

motion on that basis, as an alternative to all other

rulings made on Defendant's claims in this order and the

Court's prior orders.

(Doc. #25-11 at 490-493). Petitioner appealed, and the

Second DCA affirmed per curiam without a written opinion.

(Doc. #25-14 at 31).

Because Florida courts found Ground 10 barred by an

independent state procedural principle, Graham must show

“adequate cause and actual prejudice” or that “the failure to

consider the claim would result in a fundamental miscarriage

of justice.” Cortes, supra.

According to Graham, the cause of the delay in his

postconviction claim was the postconviction court’s failure

to timely consider his properly filed 3.850 motion. (Doc.

30 at 3). Graham proved he delivered the 3.850 motion to

prison officials for mailing in 2004 (which was enough to

satisfy the AEDPA timeliness requirement), but the record

reflects the clerk did not receive and file the motion until

2013. (Doc. 25-13 at 349-52). The postconviction court did

not find laches because of a delay in filing the 3.850 motion.

Rather, it found laches because Graham did not exercise due

diligence after delivering the motion to prison officials for

mailing. Graham does not attempt to show cause for that lack

of diligence.

This case differs from Alexander v. Dugger, 841 F.2d 371

(11th Cir. 1988), in which the petitioner demonstrated cause

for his procedural default. Similar to Graham, Alexander

mailed a petition for rehearing of his 3.850 motion to the

court clerk, but the motion was never docketed, causing

Alexander to miss an appeal deadline. Alexander, 841 F.2d

at 374. But unlike Graham, Alexander diligently pursued his

claim by filing an appeal less than a year later. Id. And

Alexander gained no strategic advantage by the delay, whereas

during Graham’s delay, Ahlbrand — the only person who could

meaningfully contradict Graham’s testimony — died. The

distinction is important because, “[i]n this circuit, a

finding of cause must be based on a determination that a

miscarriage of justice was suffered and no strategic

advantage was gained by failing to comply with the procedural

rule.” See id. Graham did not show adequate cause for his

lack of diligence in pursuing his 3.850 motion.

Graham also fails to show he suffered actual prejudice.

To establish prejudice, Graham “must demonstrate that the

errors at trial actually and substantially disadvantaged his

defense so that he was denied fundamental fairness.” Sealey

v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1365 (11th

Cir. 2020). The postconviction court considered the merits

of Ground 10 and found that even without laches, the ground

would be denied. In its analysis, the court found that Graham

was not prejudiced by Alhbrand’s failure to present his

testimony considering the overwhelming evidence of Graham’s

guilt and the cumulative nature of Graham’s testimony vis-à-

vis his recorded statements that were played for jury:

17. It being established that defense counsel did

not call Defendant at trial despite his

uncontroverted testimony that he desired to

testify, the Court must consider whether Defendant

was prejudiced by his lack of an opportunity to

testify in his defense. The State argues in its

written closing argument that Defendant suffered no

prejudice because the evidence against Defendant

was overwhelming, including: 1) Defendant was seen

chasing after the victim's car the last time she

was seen alive, approximately one day before her

body was found, by two different witnesses, despite

his claim that he never saw her that day; 2)

Defendant had previously threatened to kill the

victim; 3) DNA from semen found in the body's vagina

matched Defendant; 4) due to how intact the sperm

cells were, the semen was deposited within

approximately 24-48 hours of the sample being

retrieved from the body; 5) the body had defensive

wounds on her hands and arms, and DNA from the

victim's fingernail scrapings matched Defendant; 6)

the other possible suspect, the man she dated and

slept with the night before she disappeared, was

excluded as a suspect by the DNA evidence from both

the semen and the fingernail scrapings; 7) because

of the amount of semen found in the body and the

lack of semen stains in the victim's underwear, she

did not stand up again in between having sex and

being murdered, as regular activity such as

standing, walking or showering causes semen to drip

out of the body after sex; and 8) the victim's keys

were found after her death inside the apartment she

shared with Defendant. Attached to this order are

copies of the transcript of the testimonies of

Angela Grimsley, Selina Lindo, Clifford Henderson,

Josephine Barron and Tonya Anderson, marked as

exhibit G. See also the previously attached

testimony of Tomaleta Short and the forensic expert

witnesses.

18. In addition to the above testimony and

evidence, Defendant's recorded statements to law

enforcement were played for the jury. In his first

statement, Defendant insisted that the last time he

saw the victim was the night before her

disappearance, which was contradicted at trial by

the testimony of Mr. Henderson and Ms. Lindo, who

saw him chase after her car the day of her

disappearance. During his first statement,

Defendant frequently changed details of his version

of the facts and could not give straight answers

about his whereabouts at specific times on the day

of the disappearance. Moreover, he seemed to be

aware that the victim was dead, even though the

victim's name had not yet been released in media

reports about the body being found. In Defendant's

second statement, given shortly after the first

statement and about one week after the victim's

death, he said that the last time he had sex with

the victim was "probably...a couple of days" before

she disappeared. Thereafter he mentioned taking a

shower with her the night before she disappeared,

but did not mention having sex at the time, nor did

he correct his earlier answer about the last time

they had sex. Defendant also repeated his claim

from the first interview that he was at his mother's

house at the time two witnesses saw him chase after

the victim's car at their apartment complex.

Finally, Defendant told the officers several times

in the two statements that he had his own key to

the apartment. Attached to this order are copies of

the transcripts of Defendant's two statements to

police, marked as exhibit H. The statements contain

the same facts Defendant claims he would have

testified to if he were allowed to testify at trial.

. . .

21. . . . Defendant's testimony would only have

rebutted certain portions of the State's evidence.

To determine prejudice, the probative value of this

testimony, and the potential effect it may have had

on the verdict, must be considered in light of the

evidence of guilt, especially in light of the fact

that similar rebuttal evidence was introduced at

trial through Defendant's recorded interviews with

law enforcement.

22. After reviewing the record in this case, the

Court finds that Defendant has not demonstrated a

reasonable likelihood that the outcome of his case

would have been different had his attorney called

him to testify. Even assuming that Defendant had

been called and provided the testimony proposed at

the evidentiary hearing, there would have been

ample unrebutted evidence indicating Defendant's

guilt. The forensic evidence in particular points

to Defendant being the only possible perpetrator.

The State's expert testified that the semen found

in the body's vagina had been deposited no more

than 48 hours before being retrieved by law

enforcement and that the victim did not get up in

between having sex and being strangled. The DNA

profile extracted from this semen matched Defendant

to the exclusion of all but approximately 1 in 17

million other African American men; the DNA

extracted from the fingernail scrapings was even

more conclusive, with an approximately 1 in 400

million chance of the DNA belonging to someone

other than Defendant. See the previously attached

testimony of expert witness Martin Tracey. When

considered together, the only conclusion that can

be drawn is that Defendant had sex with the victim

immediately before her death and is the person who

caused her death, preventing her from getting up

again after having sex. On top of this irrefutable

DNA evidence, testimony at trial established that

Defendant and the victim had an unstable

relationship, that Defendant had previously

threatened to kill her, and that Defendant was

running after her trying to get her attention the

last time she was seen alive - which Defendant

denied happening despite the testimony of two

witnesses. Finally, Defendant's proposed testimony

would have offered no explanation for how the

victim's keys were found inside a dresser in the

apartment she shared with Defendant, when other

witnesses had seen the keys in her possession

before she disappeared.

15.[sic] After considering the totality of the

circumstances, the Court finds that there is no

reasonable probability the outcome of trial would

have been different had Defendant been called to

testify at trial. Accordingly, he did not suffer

any prejudice and his attorney could not have been

ineffective for failing to call him. Ground ten of

Defendant's motion is denied.

(Doc. #25-11 at 485-90 (footnotes omitted)).

This Court agrees with the postconviction court. Given the

overwhelming evidence of Graham’s guilt, there is no reasonable

probability that his testimony would have changed the outcome of

his trial. It would have been cumulative with his recorded

statements, and it would have done nothing to rebut the forensic

evidence that identified Graham as the likely killer.

Even without cause and prejudice, a petitioner can overcome

a procedural default if it would result in a miscarriage of

justice, which occurs when “a constitutional violation has

probably resulted in the conviction of one who is actually

innocent[.]” Murray v. Carrier, 477 U.S. 478, 496 (1986). That

is not the case here. Graham has not made the required “colorable

showing of actual innocence[.]” Bailey v. Nagle, 172 F.3d 1299,

1306 (11th Cir. 1999).

For the foregoing reasons, Graham cannot circumvent his state

procedural default, and Ground 10 is dismissed.

c. Ground 11

Graham argues the trial court violated his 14th Amendment

rights by erroneously instructing the jury that manslaughter

required an intent to kill the victim, depriving him of an accurate

instruction for a lesser-included offense. (Doc. #1 at 24).

Respondent argues Ground 11 is procedurally barred, (Doc. #24 at

22), and Graham concedes the point (Doc. #30 at 8). Graham first

raised the issue in his Motion to Supplement/Add Additional Grounds

to Original Rule 3.850 Motion on August 13, 2013, well outside

Rule 3.850’s two-year statute of limitations. (Doc. #25-5 at 37).

And, like Grounds 1-9, Graham failed to argue the point on appeal.

See Section III.a., supra. Ground 11 is procedurally barred.

d. Ground 12

In his final ground, Graham argues the trial court’s admission

1

of Williams Rule evidence denied him a fair trial. (Doc. #1 at

26). The evidence is question is witness Tomaleta Short’s

testimony that Graham told the victim, “If I catch you fucking up,

I will fuck your ass up.” (Doc. #25-2 at 412). The trial court

allowed the testimony over Ahlbrand’s objection. (Id. at 407-08).

The parties disagree whether Graham exhausted Ground 12, but

Graham concedes he is not entitled to relief because “he fails to

1

The Florida Supreme Court enunciated the rule in Williams

v. State, 110 So. 2d 654, 659-60 (Fla. 1959): “Our view of the

proper rule simply is that relevant evidence will not be excluded

merely because it relates to similar facts which point to the

commission of a separate crime. The test of admissibility is

relevancy. The test of inadmissibility is a lack of relevancy.”

show that the state court’s ruling...was so lacking in

justification that there was an error well understood and

comprehended in existing law beyond any possibility for fair-

minded agreement[.]” (Doc. # 30 at 9); see Harrington v. Richter,

562 U.S. 86, 103 (2011). Graham further concedes that Short’s

testimony was admissible to show motive. (Doc. #30 at 9).

The Court agrees that Ground 12 fails. Federal habeas review

of state evidentiary rulings is narrow. “Only when evidentiary

errors ‘so infused the trial with unfairness as to deny due process

of law’ is habeas relief warranted.” Felker v. Turpin, 83 F.3d

1303, 1311 (11th Cir. 1996) (quoting Lisenba v. California, 314

U.S. 219, 228 (1941)). That is not the case here. Ground 12 is

dismissed.

IV. Certificate of Appealability

A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court's denial of his petition.

28 U.S.C. § 2253(c)(1). Rather, a district court must first issue

a certificate of appealability (COA). “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(c)(2). To make such

a showing, a petitioner must demonstrate that “reasonable jurists

would find the district court's assessment of the constitutional

claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282

(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or

that “the issues presented were adequate to deserve encouragement

to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 335-36

(2003) (citations omitted). Graham has not made the requisite

showing here and may not have a certificate of appealability on

any ground of his Petition.

Accordingly, it is now

ORDERED:

1. Johnnie M. Graham's Petition under 28 U.S.C. § 2254 for

Writ of Habeas Corpus by a Person in State Custody (Doc.

#1) is DISMISSED.

2. The Clerk shall enter judgment, terminate all deadlines

and motions, and close the case.

DONE AND ORDERED in Fort Myers, Florida this 25th day of

November 2020.

□ — Afr

: le hy ZC. AK Zo0b

ade E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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