“[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