Cito v. Secretary, Department of Corrections (Pasco County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

VITO PAUL CITO, III

Petitioner,

v. Case No. 8:17-cv-2752-T-36TGW

SECRETARY, Department of Corrections,

Respondent.

/

O R D E R

This cause comes before the Court on Vito Paul Cito’s amended petition for the writ of

habeas corpus under 28 U.S.C. § 2254. (Doc. 8) Cito challenges his state convictions for

aggravated assault and discharging a firearm within 1000 feet of a person. Respondent concedes

the amended petition’s timeliness. Cito also moves for a “telephonic/video hearing.” (Doc. 54)

Upon consideration of the amended petition (Doc. 8), the response (Doc. 22), the reply (Doc. 38),

and the motion (Doc. 54), and in accordance with the Rules Governing Section 2254 Cases in the

United States District Courts, both the petition and the motion will be DENIED.

Facts1

Lance Tubbs and his mother went to Cito’s home where they got into an argument with

Cito over a disparaging remark Cito made about Tubbs’s mother. The argument started inside the

residence and continued out in the front yard. Cito and a friend got into Cito’s Jeep and sped away

from the scene. As Cito drove away Tubbs chased after the Jeep on foot. Cito pointed a gun out

1 This factual summary derives from Cito’s brief on direct appeal and the record. (Respondent’s Exhibits 4,

5, and 13)

of the Jeep’s window and fired multiple shots. Tubbs did not have a weapon and, according to

eyewitnesses, could not have chased down Cito in the Jeep given the speed Cito was traveling.

Cito was arrested and charged with aggravated assault and discharge of a firearm within

1000 feet of a person.2 Cito unsuccessfully asserted a self-defense theory at trial. A jury convicted

Cito of both charges and he was sentenced to twenty years imprisonment. The state appellate court

affirmed both Cito’s convictions and sentences and the denial of his state Rule 3.850 motion.

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this

proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied,

531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court

review of a state court adjudication, states in pertinent part:

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

person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless

the adjudication of the claim —

(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.

2 Cito was involved in two separate shooting incidents on the same day. An information charged Cito with

two counts of attempted first-degree murder and aggravated assault (counts 1–3) resulting from the first shooting and

aggravated assault and discharging a firearm within 1000 feet of a person as to victim Lance Tubbs (counts 4–5).

Counts 1–3 were severed from counts 4 and 5 and were tried separately. In his federal petition Cito challenges only

his convictions on counts 4 and 5.

In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this

deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a

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

of habeas corpus with respect to claims adjudicated on the merits in

state court. Under § 2254(d)(1), the writ may issue only if one of the

following two conditions is satisfied - - the state-court adjudication

resulted in a decision that (1) “was contrary to . . . clearly established

Federal Law, as determined by the Supreme Court of the United

States” or (2) “involved an unreasonable application of . . . clearly

established Federal law, as determined by the Supreme Court of the

United States.” Under the “contrary to” clause, a federal habeas

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

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

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

materially indistinguishable facts. Under the “unreasonable

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

state court identifies the correct governing legal principle from this

Court’s decisions but unreasonably applies that principle to the facts

of the prisoner’s case.

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

is objectively unreasonable, . . . an unreasonable application is different from an incorrect one.”

Bell v. Cone, 535 U.S. 685, 694 (2002). “As a condition for obtaining habeas corpus from a federal

court, a state prisoner must show that the state court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 526

U.S. 86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the

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

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

United States Supreme Court “as of the time of the relevant state-court decision.” Williams, 529

U.S. at 412.

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

federal habeas court’s role in reviewing state prisoner applications in order to prevent federal

habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible

under law.” Cone, 535 U.S. at 693. A federal court must afford due deference to a state court’s

decision. “AEDPA prevents defendants — and federal courts — from using federal habeas corpus

review as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559

U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult

to meet,’ . . . and ‘highly deferential standard for evaluating state-court rulings, which demands

that state-court decisions be given the benefit of the doubt’ . . . .”) (citations omitted).

The state appellate court affirmed the denial of Cito’s Rule 3.850 motions. (Respondent’s

Exhibits 20 and 31) The state appellate court’s affirmances warrant deference under Section

2254(d)(1) because “the summary nature of a state court’s decision does not lessen the deference

that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh’g and reh’g en banc denied,

278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also

Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court and the state

court has denied relief, it may be presumed that the state court adjudicated the claim on the merits

in the absence of any indication or state-law procedural principles to the contrary.”).

Review of the state court decision is limited to the record that was before the state court.

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

that was before the state court that adjudicated the claim on the

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

adjudication that “resulted in” a decision that was contrary to, or

“involved” an unreasonable application of, established law. This

backward-looking language requires an examination of the

state-court decision at the time it was made. It follows that the record

under review is limited to the record in existence at that same time,

i.e., the record before the state court.

Pinholster, 563 U.S. at 181–82. Cito bears the burden of overcoming by clear and convincing

evidence a state court factual determination. “[A] determination of a factual issue made by a State

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

presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). This

presumption of correctness applies to a finding of fact but not to a mixed determination of law and

fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001).

Standard for Ineffective Assistance of Counsel

Cito claims ineffective assistance of counsel, a difficult claim to sustain. “[T]he cases in

which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel

are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc)

(quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297,

1305 (11th Cir. 1998), explains that Strickland v. Washington, 466 U.S. 668 (1984), governs an

ineffective assistance of counsel claim:

The law regarding ineffective assistance of counsel claims is well

settled and well documented. In Strickland v. Washington, 466 U.S.

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

set forth a two-part test for analyzing ineffective assistance of

counsel claims. According to Strickland, first, the defendant must

show that counsel’s performance was deficient. This requires

showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable. Strickland, 466 U.S. at 687, 104

S. Ct. 2052.

Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466

U.S. at 697 (“There is no reason for a court deciding an ineffective assistance claim . . . to address

both components of the inquiry if the defendant makes an insufficient showing on one.”); Sims,

155 F.3d at 1305 (“When applying Strickland, we are free to dispose of ineffectiveness claims on

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

and made all significant decisions in the exercise of reasonable professional judgment.”

Strickland, 466 U.S. at 690. “[A] court deciding an actual ineffectiveness claim must judge the

reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of

the time of counsel’s conduct.” 466 U.S. at 690. Strickland requires that “in light of all the

circumstances, the identified acts or omissions were outside the wide range of professionally

competent assistance.” 466 U.S. at 690.

Cito must demonstrate that counsel’s alleged error prejudiced the defense because “[a]n

error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment

of a criminal proceeding if the error had no effect on the judgment.” 466 U.S. at 691. To meet

this burden, Cito must show “a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable probability is a probability

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

Strickland cautions that “strategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengeable; and strategic choices made after

less than complete investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” 466 U.S. at 690–91. Cito cannot meet his

burden merely by showing that the avenue chosen by counsel proved unsuccessful.

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

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

We ask only whether some reasonable lawyer at the trial could have

acted, in the circumstances, as defense counsel acted at trial . . . . We

are not interested in grading lawyers’ performances; we are

Interested in whether the adversarial process at trial, in fact, worked

adequately.

White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992). Accord Chandler v. United States,

218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers, in every case, could

have done something more or something different. So, omissions are inevitable . . . . [T]he issue

is not what is possible or ‘what is prudent or appropriate, but only what is constitutionally

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

Under 28 U.S.C. § 2254(d) Cito must prove that the state court’s decision was

“(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States or (2) . . . based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding.”

Sustaining a claim of ineffective assistance of counsel is very difficult because “[t]he standards

created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two apply in

tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 106. See also Pinholster, 563 U.S. at 202 (a

petitioner must overcome this “‘doubly deferential’ standard of Strickland and [the] AEDPA”),

Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir. 2011) (“Double deference is doubly

difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance

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

habeas proceeding.”), and Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012)

(“Because we must view Pooler’s ineffective counsel claim — which is governed by the deferential

Strickland test — through the lens of AEDPA deference, the resulting standard of review is ‘doubly

deferential.’”), cert. denied, 134 S. Ct. 191 (2013).

Ground One

Cito contends that his trial counsel rendered ineffective assistance by not objecting to an

erroneous jury instruction on the justifiable use of force. Cito argues that “[t]he jury was instructed

that the State had to prove the defense beyond a reasonable doubt.” (Doc. 8 at 6) Cito claims that

this alleged error deprived him of his constitutional rights to both a fair trial and the effective

assistance of counsel.

The trial judge orally instructed the jury on the justifiable use of force in pertinent part as

follows (Respondent’s Exhibit 4, trial transcript at 675–78) (emphasis added):

Justifiable use of deadly force. An issue in this case is whether the

defendant acted in self-defense. It is a defense to the offense with

which Vito Paul Cito is charged if the actions against Lance Tubbs

resulted from the justifiable use of deadly force.

That goes to both charges.

. . . .

If, in your consideration of the issue of self-defense, you have a

reasonable doubt on the question of whether the defendant was

justified in the use of deadly force, you should find the defendant

not guilty.

However, if from the evidence you are convinced the defendant was

not justified in the use of deadly force, you should find him guilty if

all the elements of the charge have been proved.

Instruction on attempt to commit crime. To prove the crime of an

attempt to commit burglary, the State must prove the following

two elements beyond a reasonable doubt:

The defendant[3] did some act toward committing the crime of

burglary that went beyond just thinking or talking about it. Two, he

would have committed the crime except that someone prevented

him from committing the crime of burglary or he failed.

It is not an attempt to commit burglary if the defendant abandoned

his attempt to commit the offense or otherwise prevented its

commission, under circumstances indicating a complete and

voluntary renunciation of his criminal purpose.

Burglary. To prove the crime of burglary, the State must prove the

following three elements beyond a reasonable doubt: One, the

3 In the written instructions provided to the jury on the individual elements of both attempt and burglary, the

word “defendant” is erroneously replaced with “[the victim] Lance Tubbs.” (Respondent’s Exhibit 5)

defendant entered a conveyance owned by or in the possession of a

victim.

Two, at the time of entering the conveyance, the defendant had the

intent to commit an offense in that conveyance.

Three, the defendant was not licensed or invited to enter the

conveyance.

In his first Rule 3.850 motion4 Cito contended that his “trial counsel was ineffective for

failing to object to the use of erroneous jury instructions that negated the Defendant’s only defense,

self-defense with justifiable use of force.” (Respondent’s Exhibit 18, first Rule 3.850 motion at 6)

Cito argued that “[t]he erroneous jury instruction combined with the prosecution’s final arguments

deprived the Defendant of his right to a fair trial and to present a defense” because the jury

instructions “required the State to prove ‘beyond a reasonable doubt’ that the Defendant committed

the crimes by Information and that the State prove ‘beyond a reasonable doubt’ that [the victim]

committed either burglary or attempted burglary in order for the Defendant to be justified in using

deadly force.” (Respondent’s Exhibit 18, first Rule 3.850 motion at 11)

The state post-conviction court construed Cito’s ground as challenging trial counsel’s

failure to object to the justifiable use of force instruction itself rather than failing to object to the

alleged error within the instruction. The state post-conviction court rejected this ground in Cito’s

first Rule 3.850 motion as follows (Respondent’s Exhibit 18, Order Denying Defendant’s Motion

for Postconviction Relief at 3–4) (court’s record citations omitted):

In his motion Defendant alleges that counsel was ineffective for

failing to object to the giving of a jury instruction for justifiable use

of deadly force. Defendant also alleges that the State’s comments

during closing argument that the victim posed no danger of death or

great bodily harm to the Defendant further undermined his claim of

self-defense. In conclusion the Defendant argues:

4 Cito presented this ground to the state post-conviction court again in his second Rule 3.850 motion.

(Respondent’s Exhibit 29, second Rule 3.850 motion at 20–22) The state post-conviction court dismissed the ground

as successive under a state procedural rule.

[T]he instructions submitted and read to the jury

required the State to prove “beyond a reasonable

doubt” that the defendant committed the crimes

charged by information and that the State prove

“beyond a reasonable doubt” that [the victim]

committed either burglary or attempted

burglary . . . in order for the defendant to be justified

in using deadly force. The State clearly told the jury

during final arguments that “[the victim] was not

trying to murder the defendant or attempt[ing] to

commit burglary upon [him].”

It appears from Defendant’s argument that he is mistaken as to who

has the burden of proof on the affirmative defense of self-defense.

Contrary to the Defendant’s assertion, it is not the State’s burden to

prove beyond a reasonable doubt that the victim in this case did

anything, let alone establish that the victim was attempting to

murder or burglarize the Defendant.

The facts in this case were that: (1) an altercation between the

Defendant and the victim; (2) that altercation ended with the victim

chasing after the Defendant as he drove off; (3) and the Defendant

firing shots at the victim as the Defendant drove away. The

Defendant’s entitlement to claim self-defense in this case was

repeatedly questioned by the State at trial. However, the trial judge

permitted the issue to go to the jury with an instruction that was

discussed at length during the charge conference. During the charge

conference counsel for the Defendant zealously advocated for the

inclusion of the self-defense instruction as well as the specific

language regarding the victim’s attempts to pursue and intent to do

the Defendant harm.

Based on the foregoing the Court finds that the Defendant has failed

to establish that trial counsel was ineffective. The Court further finds

that the record conclusively refutes the Defendant’s claim. Trial

counsel did his best and was successful in ensuring that the issue of

self-defense was presented to the jury.

In the response to the federal petition the Respondent “acknowledges that the jury

instructions defining burglary and attempt were incorrect because they were provided in the

context of a self-defense claim and therefore should not have stated that the State was required to

prove the elements of burglary and attempt beyond a reasonable doubt.” (Doc. 22 at 27) See

Murray v. State, 937 So. 2d 277, 279–82 (Fla. 4th DCA 2006) (holding that the trial court erred

by giving a self-defense instruction that stated that the elements of the felony allegedly committed

by the victim must be proved beyond a reasonable doubt); Adams v. State, 727 So. 2d 997, 999–

1000 (Fla. 2d DCA 1999) (concluding that the defendant’s trial counsel rendered ineffective

assistance by proposing a jury instruction on self-defense that erroneously stated that the felony

the victim allegedly committed must be proven beyond a reasonable doubt). The Respondent

further “acknowledges that the state [post-conviction] court misinterpreted Petitioner’s argument

regarding the self-defense jury instruction when considering Petitioner’s first Rule 3.850 motion.”

(Doc. 22 at 28)

To the extent that the state post-conviction court characterized and rejected Cito’s ground

as challenging counsel’s failure to object to the self-defense instruction, the court’s rejection of the

ground is neither contrary to, or an unreasonable application of, Strickland nor was the ruling based

on an unreasonable determination of the facts in light of the evidence presented to the state court.

28 U.S.C. § 2254(d)(1), (d)(2). To the extent that Cito properly presented to the state

post-conviction court — but that court failed to address — the aspect of Cito’s ground that his trial

counsel rendered ineffective assistance by not objecting to the burden of proof error within the

instruction on both the attempted burglary and burglary, that aspect of the claim is subject to de

novo review because “the present controversy falls outside of [Section] 2254(d)(1)’s requirement

that [the federal court] defer to state court decisions that are not contrary to, or an unreasonable

application of, clearly established federal law.” Davis v. Sec'y, Dep’t of Corr., 341 F.3d 1310,

1313 (11th Cir. 2003) (citation omitted). See also Cone v. Bell, 566 U.S. 449, 472 (2009)

(explaining that “[i]f the state court did not reach the merits of a petitioner’s claim based on some

ground that is not adequate to bar federal review, we must review the claim de novo.”); Williams

v. Ala., 791 F.3d 1267, 1273 (11th Cir. 2015) (noting that “[u]nder § 2254(d), AEDPA’s deferential

standard of review is limited to claims that have been ‘adjudicated on the merits’ in state court.”).

Assuming, arguendo, both that the instruction was erroneous and that Cito’s trial counsel

performed deficiently, Cito is not entitled to relief because he fails to show resulting prejudice as

Strickland requires. Section 776.012, Florida Statutes, provides in pertinent part that a person is

justified in using deadly force in self-defense when the person reasonably believes such force is

necessary to prevent imminent death or great bodily harm. Based on the evidence adduced at trial,

including the testimony of multiple eyewitnesses who testified that (1) Cito got into a vehicle and

was driving away from the victim at a high rate of speed when Cito fired the gun and (2) that the

victim neither possessed a weapon nor was in close physical proximity to Cito when Cito shot at

him (Respondent’s Exhibit 4 at 178, 185, 190, 199, 207, 223), even if counsel had objected to the

erroneous instruction, no reasonable probability exists that Cito would have succeeded on a

self-defense theory such that the outcome of the trial would have been different. Because Cito

fails to meet Strickland’s requirements, his ground of ineffective assistance of counsel warrants no

relief. Strickland, 466 U.S. at 691–92.

Ground Two

Cito contends that his appellate counsel rendered ineffective assistance by not arguing on

direct appeal that the erroneous self-defense instruction amounted to fundamental error. Cito

presented this ground to the state appellate court in his state habeas petition, which petition the

court denied in a one-sentence order without explanation. (Respondent’s Exhibits 35 and 36)

The Strickland standard of review applies to a claim of ineffective assistance of appellate

counsel. Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991), cert. denied, 502 U.S. 1077 (1992).

To establish such a claim, Cito must show that his appellate counsel performed deficiently and that

the deficient performance resulted in prejudice. To demonstrate deficient performance, Cito must

show that appellate counsel’s failure to discover a non-frivolous issue and file a merits brief raising

the issue fell outside the range of professionally acceptable performance. Smith v. Robbins, 528

U.S. 259, 285–86 (2000). To demonstrate prejudice, Cito must show that a reasonable probability

exists that, but for appellate counsel’s unreasonable failure to raise this claim, he would have

prevailed on direct appeal. Robbins, 528 U.S. at 285–86.

The record shows that Cito’s trial counsel did not object at the trial to the erroneous

instruction, leaving the issue unpreserved for appellate review. Appellate counsel could not have

challenged the erroneous instruction on direct appeal absent preservation by trial counsel unless

the instruction amounts to “fundamental error.” See State v. Delva, 575 So. 2d 643, 644 (Fla.

1991) (“Instructions . . . are subject to the contemporaneous objection rule, and, absent an

objection at trial, can be raised on appeal only if fundamental error occurred.”); Zack v. State, 911

So. 2d 1190, 1204 (Fla. 2005) (“Appellate counsel has no obligation to raise an issue that was not

preserved for review and is not ineffective for failing to raise an unpreserved issue on appeal.”).

Fundamental error is “error that reaches down into the validity of the trial itself to the extent that

a verdict of guilty could not have been obtained without the assistance of the alleged error.”

Kilgore v. State, 688 So.2d 895, 898 (Fla. 1996) (alteration and quotation marks omitted).

Accordingly, unless the unpreserved jury instruction error that appellate counsel failed to raise is

fundamental error, the state appellate court would not have granted relief even if counsel had raised

the issue on appeal. See Rutherford v. Moore, 774 So. 2d 637, 646 (Fla. 2000) (“Because this issue

was not preserved for review, if it had been raised on appeal, it would have warranted reversal

only if it constituted fundamental error . . . .”). The Florida Supreme Court has explained that the

“doctrine of fundamental error should be applied only in rare cases where a jurisdictional error

appears or where the interests of justice present a compelling demand for its application.” Smith

v. State, 521 So. 2d 106, 108 (Fla. 1988).

The state appellate court rejected this ground on ineffective assistance of appellate counsel

without explanation. The Respondent correctly argues that “[t]his Court must presume that the

state appellate court found that the erroneous jury instructions were not fundamentally erroneous.”

(Doc. 22 at 36) Pinkney v. Sec’y, Dep’t of Corr., 876 F.3d 1290, 1299 (11th Cir. 2017), explains:

[T]he fundamental error question is an issue of state law, and state

law is what the state courts say it is. See Agan, 119 F.3d at 1549;

Alvord, 725 F.2d at 1291. As the Supreme Court and this Court have

repeatedly acknowledged, it is not a federal court’s role to examine

the propriety of a state court’s determination of state law. See Estelle

v. McGuire, 502 U.S. 62, 67–68, 112 S. Ct. 475, 480, 116 L. Ed. 2d

385 (1991) (“[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions.”);

Wainwright v. Goode, 464 U.S. 78, 84, 104 S. Ct. 378, 382, 78

L.Ed.2d 187 (1983) (stating that the views of state appellate courts

with respect to state law “are binding on the federal courts”); see

also Bates v. Sec’y, Fla. Dep’t of Corr., 768 F.3d 1278, 1303 (11th

Cir. 2014) (“[T]he Florida Supreme Court’s interpretation of state

law . . . is binding on federal courts.”).

While this ground of ineffective assistance of appellate counsel is a federal question, Cito’s

challenge to the jury instruction under Florida law is a state law matter. See Will v. Sec’y for Dep’t

of Corr., 278 F. App’x 902, 908 (11th Cir. 2008) (“Although an ineffective assistance of counsel

claim is a federal constitutional claim, which we consider in light of the clearly established rules

of Strickland, when ‘the validity of the claim that [counsel] failed to assert is clearly a question of

state law, . . . we must defer to the state’s construction of its own law.’”) (citing Alvord v.

Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)). The state appellate court in rejecting Cito’s

ground of ineffective assistance of appellate counsel has answered the question of what would

have happened if appellate counsel had challenged the jury instruction on direct appeal — the court

would have found that the instruction did not constitute fundamental error and Cito’s convictions

would have been affirmed under state law.5 See Herring, 397 F.3d at 1354–55; Callahan, 427

F.3d at 932. Because the alleged error did not constitute fundamental error, appellate counsel was

not deficient for failing to raise it on direct appeal. Accordingly, Cito suffered no prejudice under

Strickland as a result of appellate counsel’s failure to challenge the instruction on direct appeal.

Because he fails to meet his burden of proving that the state appellate court either unreasonably

applied Strickland or unreasonably determined the facts in denying his claim of ineffective

assistance of appellate counsel, Cito is not entitled to federal habeas relief on ground two.

28 U.S.C. § 2254(d)(1), (d)(2).

Ground Three

Cito contends that “[t]he trial court judge, prosecutor, and trial counsel . . . rigged [his] jury

instructions to obtain [an] unlawful conviction in hopes to force [him] to plea to other charges in

which [he] was later acquitted.” (Doc. 8 at 10) The Respondent correctly argues that this ground

is procedurally barred because Cito did not raise the ground as a federal claim in the state court.

Cito asserts that he presented this ground to the state post-conviction court in his second

Rule 3.850 motion and in his appeal of the denial of that motion. (Doc. 8 at 11) The record shows

that, while Cito alleged in his second Rule 3.850 motion that his trial counsel rendered ineffective

assistance by not objecting to the erroneous instruction, he did not allege that the judge, the

prosecutor, and his trial counsel “rigged” the jury instructions as he now alleges in the federal

petition. (Respondent’s Exhibit 29, Rule 3.850 motion at 19–22) Although Cito is correct that he

did raise this allegation in his appellate brief challenging the denial of his second Rule 3.850

motion, he did not allege a violation of a federal constitutional right nor did he present the ground

5 Moreover, although the written instructions sent to the jury room with the jury contained the error, the

judge’s oral instructions read to the jury in open court correctly stated the instruction. (Respondent’s Exhibit 4, trial

transcript at 675–79 and Exhibit 5)

as an independent basis for relief. Rather, he made his “rigging” allegations in support of the

alleged erroneous denial of his claim of ineffective assistance of trial counsel. Accordingly, even

assuming, arguendo, that Cito’s federal petition presents either a federal due process claim or a

federal fair trial claim based on the alleged “rigging” by the trial judge, the prosecutor, and trial

counsel, such claim is unexhausted and procedurally barred from federal review.

Before a federal court can grant habeas relief, a petitioner must exhaust every available

state court remedy for challenging his conviction, either on direct appeal or in a state post-

conviction motion. 28 U.S.C. § 2254(b)(1)(A), (C). “[T]he state prisoner must give the state

courts an opportunity to act on his claims before he presents those claims to a federal court in a

habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also Henderson v.

Campbell, 353 F.3d 880, 891 (11th Cir. 2003) (“A state prisoner seeking federal habeas relief

cannot raise a federal constitutional claim in federal court unless he first properly raised the issue

in the state courts.”) (citations omitted). To exhaust a claim, a petitioner must present the state

court with both the particular legal basis for relief and the facts supporting the claim. See Snowden

v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (“Exhaustion of state remedies requires that the

state prisoner ‘fairly presen[t] federal claims to the state courts in order to give the State the

opportunity to pass on and correct alleged violations of its prisoners’ federal rights.’”) (quoting

Duncan v. Henry, 513 U.S. 364, 365 (1995)). The prohibition against raising an unexhausted claim

in federal court extends to both the broad legal theory of relief and the specific factual contention

that supports relief. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).

The requirement that a petitioner exhaust each available state court remedy as a prerequisite

to federal review is satisfied if the petitioner “fairly presents” his claim in each appropriate state

court and alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v.

Connor, 404 U.S. 270, 275–76 (1971). A petitioner may raise a federal claim in state court “by

citing in conjunction with the claim the federal source of law on which he relies or a case deciding

such claim on federal grounds, or by simply labeling the claim ‘federal.’” Baldwin, 541 U.S. at 32.

“If the petitioner has failed to exhaust state remedies that are no longer available, that

failure is a procedural default which will bar federal habeas relief, unless either the cause and

prejudice or the fundamental miscarriage of justice exception is applicable.” Smith v. Jones, 256

F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner “must

demonstrate that some objective factor external to the defense impeded the effort to raise the claim

properly in state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To show prejudice,

a petitioner must demonstrate not only that an error at the trial created the possibility of prejudice

but that the error worked to his actual and substantial disadvantage and infected the entire trial

with error of constitutional dimension. United States v. Frady, 456 U.S. 152 (1982). In other

words, a petitioner must show at least a reasonable probability of a different outcome. Henderson,

353 F.3d at 892.

Absent a showing of cause and prejudice, a petitioner may obtain federal habeas review of

a procedurally defaulted claim only if review is necessary to correct a fundamental miscarriage of

justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Murray v. Carrier, 477 U.S. 478, 495

96 (1986). A fundamental miscarriage of justice occurs if a constitutional violation has probably

resulted in the conviction of someone who is “actually innocent.” Schlup v. Delo, 513 U.S. 298,

327 (1995); Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet the “fundamental

miscarriage of justice” exception, Cito must show constitutional error coupled with “new reliable

evidence — whether . . . exculpatory scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324.

State procedural rules preclude Cito from returning to state court to present either a federal

due process claim or a federal fair trial claim in either a second direct appeal or an untimely

collateral motion for post-conviction relief, rendering the claim procedurally defaulted. Cito fails

to allege or show cause and prejudice for the default of a federal claim based on the allegedly

“illegal preparation” of the self-defense instruction. He cannot meet the “fundamental miscarriage

of justice” exception because he presents no “new reliable evidence” that he is actually innocent.

Schlup, 513 U.S. at 327. Because he satisfies neither exception to procedural default, a federal

claim based on the allegedly illegal actions by the judge, prosecutor, and trial counsel is

procedurally barred from federal review.

Alternatively, a review of the merits shows that Cito is not entitled to relief. He neither

presents evidence of “rigging” by either the judge, the prosecutor, or his trial counsel nor presents

evidence of a federal constitutional violation. Consequently, Cito fails to state a basis for federal

habeas relief.

Accordingly, Cito’s amended petition for the writ of habeas corpus (Doc. 8) is DENIED.

Cito’s motion “for telephonic/video hearing” (Doc. 54) is DENIED.6 The clerk is directed to enter

a judgment against Cito and CLOSE this case.

DENIAL OF BOTH A

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

IT IS FURTHER ORDERED that Cito is not entitled to a certificate of appealability. A

prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s

6 In his motion Cito moves for a hearing on his claim of ineffective assistance of counsel for not objecting to

the erroneous jury instruction. For the reasons stated in this order in the discussion of ground one, the claim lacks

merit and does not warrant a hearing. See Broadwater v. United States, 292 F.3d 1302, 1303 (11th Cir. 2003)

(concluding that no evidentiary hearing is warranted when “it plainly appears from the face of the motion and any

annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief”).

denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate

of appealability (‘COA’). Section 2253(c)(2) limits the issuing of a COA “only if the applicant

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

appealability, Cito must show that reasonable jurists would find debatable both (1) the merits of

the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2);

Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001).

Because he fails to show that reasonable jurists would debate either the merits of the claims or the

procedural issues, Cito is entitled to neither a certificate of appealability nor leave to appeal in

forma pauperis.

Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma pauperis

is DENIED. Cito must obtain permission from the circuit court to appeal in forma pauperis.

DONE and ORDERED in Tampa, Florida this 8th day of December 2020.

C} \O Rene AiJardia Mo TD pl ped □□

Charlene Edwards Honeywell

United States District Judge

Copies furnished to:

All parties of record including unrepresented parties, if any

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