Root v. Secretary, Department of Corrections

UMNIIDTEDDL ES TDAISTTERS IDCITS TORFI FCLTO CROIDUART

TAMPA DIVISION

BYRON ROOT

Applicant,

v. CASE NO. 8:13-cv-861-T-23AEP

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Byron Root applies for the writ of habeas corpus under 28 U.S.C. § 2254

(Doc. 1) and challenges the validity of his state conviction for second-degree

murder, for which conviction Root serves life imprisonment. Numerous exhibits

(“Respondent’s Exhibit __”) support the response. (Doc. 18) The respondent

admits the application’s timeliness. (Doc. 18 at 6)

Facts1

Norman Trace and Rogers Combs were having coffee on Trace’s back

porch when they heard a car pull up and stop near the woods behind Trace’s house.

Combs and Trace both heard a man and a woman arguing. Trace called 911. While

awaiting the police, Combs heard two “thumps” and some movement in the woods

followed by the slamming of a car door. A police officer entered the woods and

1 This factual summary derives form Root’s brief on direct appeal and the record.

(Respondent’s Exhibits 1 and 2)

encountered Root, who advised that the victim needed help. The officer put Root in

his patrol car and proceeded into the woods where he found the deceased victim face

down in the mud. Root admitted to the police that he had struck the victim in the

head with a jack handle and “choked her out.” Root was arrested and charged with

second-degree murder with a weapon. A jury convicted Root and he was sentenced

to life imprisonment.

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AAEDPA@)

governs Root’s application. 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 C

(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.

In Williams v. Taylor, 529 U.S. 362, 412S13 (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

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, 693 (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,

562 U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical

point is that relief is available under ' 2254(d)(1)’s unreasonable-application clause

if, and only if, it is so obvious that a clearly established rule applies to a given set of

facts that there could be no ‘fairminded disagreement’ on the question . . . .”) (citing

Richter); Woods v. Donald, 575 U.S. 312, 316 (2015) (“And an ‘unreasonable

application of’ those holdings must be objectively unreasonable, not merely wrong;

even clear error will not suffice.”) (quoting Woodall, 572 U.S. at 419). 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 v.

Taylor, 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.” Bell v. Cone, 535 U.S. at 694.

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). When the last state court to decide a federal

claim explains its decision in a reasoned opinion, a federal habeas court reviews

the specific reasons as stated in the opinion and defers to those reasons if they are

reasonable. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) (“[A] federal habeas court

simply reviews the specific reasons given by the state court and defers to those

reasons if they are reasonable.”). When the relevant state-court decision is not

accompanied with reasons for the decision, the federal court “should ‘look through’

the unexplained decision to the last related state-court decision that does provide a

relevant rationale [and] presume that the unexplained decision adopted the same

reasoning.” Wilson, 138 S. Ct. at 1192. “[T]he State may rebut the presumption by

showing that the unexplained affirmance relied or most likely did rely on different

grounds than the lower state court’s decision . . . .” Wilson, 138 S. Ct. at 1192.

In a per curiam decision without a written opinion the state appellate court

on direct appeal affirmed Root’s conviction and sentence. (Respondent’s

Exhibit 2) In another per curiam decision without a written opinion the state

appellate court affirmed the denial of Root’s subsequent Rule 3.850 motion for

post-conviction relief. (Respondent’s Exhibit 3C) The state appellate court’s per

curiam 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.”), and Bishop v. Warden, 726 F. 3d 1243,

1255S56 (11th Cir. 2013) (describing the difference between an “opinion” or

“analysis” and a “decision” or “ruling” and explaining that deference is accorded

the state court’s “decision” or “ruling” even absent an “opinion” or “analysis”).

As Pinholster, 563 U.S. at 181B82, explains, 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

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.

Root 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). The state court’s rejection of

Root’s post-conviction claims warrants deference in this case. (Respondent’s

Exhibits 3B and 3C)

Ineffective Assistance of Counsel

Root 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

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.

Root 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, Root 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 690B91. Root 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, 1220B21 (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)). The required extent of counsel’s

investigation was addressed in Hittson v. GDCP Warden, 759 F.3d 1210, 1267

(11th Cir. 2014), cert. denied sub nom., Hittson v. Chatman, 135 S. Ct. 2126 (2015):

[W]e have explained that “no absolute duty exists to

investigate particular facts or a certain line of defense.”

Chandler, 218 F.3d at 1317. “[C]ounsel has a duty to make

reasonable investigations or make a reasonable decision

that makes particular investigations unnecessary.” Strickland,

466 U.S. at 691, 104 S. Ct. at 2066 (emphasis added).

“[C]ounsel need not always investigate before pursuing or

nonexhaustive, preliminary investigation) is not required for

counsel reasonably to decline to investigate a line of defense

thoroughly.” Chandler, 218 F.3d at 1318. “In assessing the

reasonableness of an attorney’s investigation . . . a court must

consider not only the quantum of evidence already known to

counsel, but also whether the known evidence would lead a

reasonable attorney to investigate further.” Wiggins, 539 U.S.

at 527, 123 S. Ct. at 2538.

See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has no duty

to raise a frivolous claim).

Under 28 U.S.C. ' 2254(d) Root 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 A[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 (An

applicant must overcome this A>doubly deferential= standard of Strickland and [the]

AEDPA.@), Johnson v. Secy, Dept 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 C 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).

Because the state court correctly recognized that Strickland governs each

claim of ineffective assistance of counsel, Root cannot meet the “contrary to” test

in Section 2254(d)(1). Root instead must show that the state court unreasonably

applied Strickland or unreasonably determined the facts. In determining

“reasonableness,” a federal application for the writ of habeas corpus authorizes

determining only “whether the state habeas court was objectively reasonable in its

Strickland inquiry,” not an independent assessment of whether counsel’s actions were

reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001), cert. denied,

537 U.S. 870 (2002). The presumption of correctness and the highly deferential

standard of review requires that the analysis of each claim begin with the state court’s

analysis.

Ground One2

Root contends that his trial counsel rendered ineffective assistance by not

moving to suppress Root’s pre-Miranda statements to the police based on the officer’s

failure to give Root Miranda warnings. Citing Missouri v. Seibert, 542 U.S. 600 (2004),

Root argues that “[a]ny statements that were given before Mr. Root was advised of

his Miranda [r]ights were in violation of the right to remain silent” and are “fruits of

2 Root presents four grounds for relief in the federal application. He designates each

ground by the number assigned to the ground in his state Rule 3.850 motion for post-conviction

relief — grounds six, seven, eight, and ten. For ease of reference, this order designates the grounds as

“one, two, three, and four.” The respondent in the corrected response (Doc. 18) also numbers the

grounds as one through four.

the poisonous tree.” (Doc. 2 at 5–6) Root claims that he raised this ground in the

state court in his Rule 3.850 motion. The respondent argues that the ground is

unexhausted and procedurally defaulted because it is substantively different from the

ground presented to the state post-conviction court. (Doc. 18 at 9–10) In his Rule

3.850 motion Root argued that his trial counsel should have moved for suppression

because Root’s “emotional state of severe shock” caused the police to coerce Root

to give incriminating statements. (Respondent’s Exhibit 3A, Root’s March 2010

original Rule 3.850 motion at 9–10) Root asserts in the federal application that

counsel should have moved to suppress his statements because the police did not

advise Root of his Miranda rights. Acknowledging the distinction between the

factual bases for each of these grounds of ineffective assistance of counsel, Root

argues in his reply that he “is not now raising a new claim but rather he is

encompassing new theories of his original IAC claim.” (Doc. 10 at 10)

Although an applicant need not present in his federal habeas application “a

verbatim restatement of the claims brought in state court,” he may not present a

particular factual instance of ineffective assistance of counsel in a federal application

that he did not first present to the state court. McNair v. Campbell, 416 F.3d 1291,

1302 (11th Cir. 2005); Johnson v. Singletary, 162 F.3d 630, 634–35 (11th Cir. 1998).

If an applicant raised an ineffective assistance of counsel claim in state court, but

alleges different supporting facts in his federal application, he has failed to fairly

present the federal claim to the state court. See Weeks v. Jones, 26 F.3d 1030, 1044–46

(11th Cir. 1994) (rejecting an applicant’s argument that “the general claim of

ineffective assistance of counsel in state court preserves for federal review all

alleged instances of ineffectiveness, regardless of whether evidence of a particular

act was presented to the state court”). Root’s failure to present to the state court the

allegations raised in ground one of the federal application — ineffective assistance of

counsel for not moving to suppress his pre-Miranda statements based on Seibert —

renders the ground unexhausted.

Before a federal court can grant habeas relief, an applicant 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, an applicant 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 upon 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 an applicant exhaust each available state court remedy

as a prerequisite to federal review is satisfied if the applicant “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). An

applicant 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 v. Reese, 541 U.S.

27, 32 (2004).

Root’s failure to present to the state court the ground of ineffective assistance

of counsel presented in ground one of the federal application deprived the state

court of a “full and fair opportunity to resolve any constitutional issues by invoking

one complete round of the State’s established appellate review process.” Boerckel,

526 U.S. at 845; see also Anderson v. Harless, 459 U.S. 4, 5 6 (1982) (“It is not enough

that all the facts necessary to support the federal claim were before the state courts

or that a somewhat similar state law claim was made.”); Preston, 785 F.3d at 460

(noting that “simply mentioning a phrase common to both state and federal law, like

‘sufficiency of the evidence,’ cannot constitute fairly presenting a federal claim to the

state courts”). Consequently, ground one is unexhausted. State procedural rules

preclude Root from returning to state court to present this ground in a second Rule

3.850 motion. Root’s failure to properly exhaust this ground in the state courts

results in a procedural default.

“If the [applicant] 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 established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To

establish cause for a procedural default, an applicant “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, an applicant 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 dimensions.”

United States v. Frady, 456 U.S. 152, 170 (1982). In other words, an applicant must

show at least a reasonable probability of a different outcome. Henderson, 353 F.3d

at 892.

Absent a showing of cause and prejudice, an applicant 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, an applicant 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.

Root fails to demonstrate cause and prejudice excusing the default of

ground one. Carrier, 477 U.S. at 495B96. 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 Root satisfies neither

exception to procedural default, ground one is procedurally barred from federal

review.

Alternatively, to the extent that Root seeks federal relief on the allegations of

ineffective assistance of counsel that he exhausted in the state court in ground six of

his Rule 3.850 motion — that counsel rendered ineffective assistance by not moving

to suppress Root’s pre-Miranda statements based on (1) Root’s extreme emotional

state and (2) alleged coercion by the police — Root cannot obtain relief. The state

post-conviction court denied this ground in Root’s Rule 3.850 motion (Respondent’s

Exhibit 3B, order denying in part and dismissing in part Root’s Rule 3.850 motion

at 13–14) (footnotes omitted):

[T]he Defendant alleges that his trial counsel was ineffective

for failing to suppress recorded statements on the basis that the

Defendant “was in an emotional state of severe shock” and was

misled by Deputy Foy to give false statements which led to his

conviction being obtained by use of a coerced confession.

In order to prevail on this claim, the Defendant must allege

facts sufficient to show that his counsel had a valid basis for

probability the motion would have been granted. In the instant

action, the Defendant has failed to establish a valid basis for

filing a motion to suppress his statements to law enforcement

and a review of the record reveals that, even if granted the

opportunity to amend this ground, he would be unable to

establish one. The mere fact that the Defendant was “very

emotional” does not equate to his statements being unknowing

and involuntary. Rather, the record conclusively refutes any

claim that the Defendant’s Miranda rights were not intelligently,

knowingly, and voluntarily waived. On cross-examination,

Deputy Foy even agreed that the Defendant was “anxious” to

tell him what happened.

In light of the foregoing, the court finds the Defendant has

failed to establish either that his counsel had a valid basis for

filing a motion to suppress on the basis of his “emotional state

of severe shock” or that there is a reasonable probability such a

motion would have been granted. Thus, the Defendant’s claims

under this ground are without merit. Furthermore, it is well

settled that “trial counsel cannot be deemed ineffective for

failing to argue a non-meritorious motion to suppress.”

Therefore, the Defendant has failed to establish a valid ground

for relief and this claim is denied.

The record shows that Root gave incriminating statements to Detective Foy

only after he received a Miranda warning. Deputy Foy testified on direct

examination at trial about Root’s statements (Respondent’s Exhibit 1D, trial

transcript at 315–17):

Q: And did you encounter someone later known to you as

Byron Root?

A: Yes, I did.

Q: How did you encounter him?

A: He was in the back of Deputy Kiernan’s car.

Q: Did you speak to him?

A: I did.

. . . .

Q: Did you read him what are commonly known as the

Miranda warnings?

A: I did.

Q: Could you read them in court the way you read them to Mr.

Root?

A: Yes, sir. Basically we are issued a card by the office of the

State Attorney —

. . . .

Q: I guess if you could just read the card.

A: Would you like me to read the entire Miranda warnings?

Q: The way you gave it to —

A: Okay. I give it somewhat differently than some officers do it.

I read each right individually and have those rights either

invoked or waived. The first right is you have the right to

remain silent. Do you understand that right[?] And then I gain

a response from the person that I’m giving them to.

Q: What did Mr. Root say to you?

A: He understood the right and waived it.

Q: What else did you say to him?

A: I said, right number two is anything you say can and will

be used against you in a court of law, do you understand that

right[?] And he understood it and waived it. You have the right

to talk to a lawyer and have him present with you while you

are being questioned. If you cannot afford to hire a lawyer, one

will be appointed to represent you before any questioning if

you wish, do you understand that right[?] He did, and waived

it. You can decide at any time to exercise these rights and

not answer any questions or make any statements, do you

understand that right[?] He understood it and waived it. Do

you understand each and every one of these rights as I’ve

explained them to you, yes or no, requiring a verbal response.

Having those rights in mind, do you wish to talk to me now,

yes or no. Mr. Root advised me he would talk to me.

he was sitting, or what was your positioning?

A: He was seated in the car. I advised Mr. Root that he was

under arrest and he was placed in handcuffs and put back into

the car, seated in the rear of Deputy Kiernan’s patrol vehicle.

Deputy Foy further testified on cross examination about Root’s understanding

of the Miranda warnings (Respondent’s Exhibit 1D, trial transcript at 341):

Q: Okay. Now, in terms of Mr. Root and the way he responded

to you, you’ve told us that you read him his Miranda warnings,

you told him he didn’t — paraphrasing, but you told him he

didn’t have to talk to you, that he had the right not to, in fact,

that he had a right to have an attorney consult with him before

he did this, but Mr. Root told you, [“]I understand, but I want

to tell you what happened.[”] Is that right?

A: I actually had to at one point — he interrupted my

advisement of Miranda and told me he understood his rights.

And I told him, time out, I have to finish these things, this is

the way we do this, let me finish, and then if you want to talk to

me, fine.

Q: So he was anxious to tell you what had happened[?]

A: Yes, sir, he was.

To obtain relief on an ineffective assistance of counsel claim for failing to file

a motion to suppress, Root must prove that (1) counsel’s representation fell below an

objective standard of reasonableness, (2) he has a meritorious Fourth Amendment

claim, and (3) a reasonable probability of a different verdict exists absent the

excludable evidence. Zakrzewski v. McDonough, 455 F.3d 1254, 1260 (11th Cir. 2006)

(citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)). As in his Rule 3.850

motion, Root does not demonstrate that a valid basis exists for suppression of his

statements to Deputy Foy. Because Root fails to establish a meritorious Fourth

Amendment claim, he cannot sustain his ground of ineffective assistance of counsel

for not filing a motion to suppress this evidence. See Zakrzewski, 455 F.3d at 1260.

Root fails to establish either that the state court unreasonably applied Strickland or

unreasonably determined the facts in rejecting this ground.3 28 U.S.C. § 2254(d)(1),

(d)(2).

Ground Two

Root contends that his trial counsel rendered ineffective assistance by not

properly investigating the victim’s actual injuries “compared to the statements and

depositions given in regards to the injuries.” (Doc. 1 at 7) Root argues that an

investigation would have corroborated the theory of defense that the victim was

attacking Root. He further argues that trial counsel could have shown through the

expert testimony of the medical examiner, Dr. Russell Vega, that Root and the

victim were facing each other when the victim was injured, which testimony

would have further supported the defense theory that the victim was the aggressor.

Root asserts also that trial counsel could have used a surveillance video from a

convenience store close to the crime scene to show that the victim had injuries before

her altercation with Root. Root claims that evidence of the victim’s pre-existing

injuries “would certainly create doubt in the minds of the jury.” (Doc. 1 at 9)

3 Root’s argument of entitlement to relief under Missouri v. Seibert, 542 U.S. 600 (2004),

likewise lacks merit. Seibert examines an interrogation procedure in which a police officer

consciously withholds the Miranda warning during a custodial interrogation until the interrogation

produces a confession, then issues the Miranda warning and again obtains the confession. 542 U.S.

at 604. Seibert holds that the second, post-Miranda confession is inadmissible because the police

deliberately delayed giving the Miranda warning in an attempt to elicit a confession. Root cannot

obtain relief under Seibert because he fails to establish that the police withheld the Miranda warning

before the initial interview.

The state post-conviction court denied this ground in Root’s Rule 3.850

motion (Respondent’s Exhibit 3B, order denying in part and dismissing in part

Root’s Rule 3.850 motion at 14–15) (footnotes omitted) (emphasis in original):

[T]he Defendant alleges that his trial counsel “was ineffective

for failing to properly investigate the blunt trauma to the head

of [the victim].” The Defendant maintains that he only struck

the victim twice on the front of her head and alleges that further

investigation by defense counsel would have revealed that the

other two blunt trauma injuries to the back of the victim’s head

were pre-existing injuries. The Defendant also alleges that this

information would somehow support his claim that the victim

initially attacked him.

This claim is . . . without merit. Notably, Dr. Vega testified that

the two injuries to the back of the victim’s skull were similar to

the two injuries noted on the front of her skull. All four oblong

injuries were consistent with the victim being struck with a

metal rod. Moreover, the Court finds it highly unlikely and

improbable that the victim was similarly injured twice on the

back of the head by someone other than the Defendant prior to

his interaction with her, and in a manner consistent with the

injuries that the Defendant admitted causing by striking the

victim twice on the front of the head with a jack handle.

Based on the foregoing, the Court’s confidence in the outcome

of the trial is not undermined by the Defendant’s claim that trial

counsel was ineffective for failing to further investigate the

victim’s head wounds. Consequently, the Court will deny relief

as to this claim.

Root fails to describe what evidence a further investigation would have

produced that would have supported his theory of defense. He presents no evidence

to support his speculative contention that trial counsel could have elicited from Dr.

Vega testimony that Root and the victim were facing each other when the victim’s

injuries occurred. Furthermore, given Dr. Vega’s testimony that the injuries to the

back of the victim’s head were visible only after her hair was shaved, Root fails

to show a reasonable probability that the outcome of the trial would have been

different if counsel had introduced the surveillance video from the convenience store.

Root fails to establish either that the state court unreasonably applied Strickland or

unreasonably determined the facts by rejecting this ground. 28 U.S.C. § 2254(d)(1),

(d)(2).

Ground Three

Root contends that his trial counsel rendered ineffective assistance by not

preparing a “meaningful” defense. Root argues that his trial counsel relied on

4 Dr. Vega testified on direct examination at trial (Respondent’s Exhibit 1E at 459–61):

Q: Doctor, did you examine the back of [the victim]’s head?

A: I did.

Q: What were those measures?

A: The hair was fairly thick in that area and to accurately examine

and then photo document the injuries the scalp had to be shaved in

the area of those injuries to be able to do that.

Q: Did she have long hair or short hair, thick hair?

A: Moderately long and fairly thick.

. . . .

Q: Now, the injuries you noted to the back of her skull, were those

similar or different from the type of injuries you noted from the front

of her skull[?]

A: They were similar.

. . . .

Q: In terms of causation for those two wounds, in other words the

wounds to the back of her skull, are those also consistent with being

struck with a metal rod?

A: Yes.

hearsay to support the defense and could not articulate a specific trial strategy to the

trial judge.

After permitting Root to amend this ground, the state post-conviction court

denied the ground as follows (Respondent’s Exhibit 3C, final order denying motion

for post-conviction relief at 3–4) (footnotes omitted) (emphasis in original):

In his present amendment the Defendant alleges that his trial

counsel was ineffective for failing to prepare a meaningful

defense. The Defendant further alleges that defense counsel

Franklin Roberts “failed to investigate and ascertain pertinent

testimony and evidence that was readily available . . . in the

form of investigative, arrest, autopsy reports, and depositions.”

The Defendant complains that defense counsel “failed to

impeach Dr. Vega with prior inconsistent statements” and

thereby “failed to uphold the self-defense theory.” . . . . In sum,

the Defendant complains that his trial counsel “failed to

develop a coherent theory of defense.”

Despite the opportunity to amend, the Defendant’s

claims . . . still fail to propose a viable, much less compelling,

defense that trial counsel could have presented to the jury in

this case. Notably, much of what the Defendant alleges in

support of [this ground] was already determined to have been

refuted by the record in this Court’s previous Order rendered

April 8, 2011. For example, under Ground Five of this Court’s

April 8, 2011, Order, the Court specifically found that Dr.

Vega’s trial testimony was not contradicted by either the

autopsy report or his prior deposition testimony. . . .

In light of the overwhelming evidence of the Defendant’s

guilt in this case, including but not limited to his own admission

that he “choked [the victim] out” and placed vegetation over

her body (indicating a guilty conscience inconsistent with a

self-defense theory), the Court’s confidence in the outcome

of this proceeding is not undermined in any way by the

Defendant’s amended allegations. Having failed to establish

prejudice, the Defendant’s claim . . . will be denied.

Root presents no evidence showing that his trial counsel either failed to

investigate the case or failed to develop a meaningful defense. Consequently,

because he demonstrates neither deficient performance nor resulting prejudice,

Root fails to satisfy Strickland’s requirements to support a claim of ineffective

assistance of counsel. Strickland, 466 U.S. at 691–92. The state post-conviction

court neither unreasonably applied Strickland nor unreasonably determined the facts

by rejecting this ground. 28 U.S.C. § 2254(d)(1), (d)(2).

Ground Four

Root contends that his trial counsel rendered ineffective assistance by not

objecting to certain of the prosecutor’s statements in closing argument. Specifically,

Root claims that “[t]he prosecutor told the jury to convict [Root] because (1) ‘The

case is clear and there is no greater example of second degree murder,’ . . . (2) ‘I can’t

imagine a better example of an indifference to human life than that,” . . . (3) “This is

the perfect example of murder in the first degree with a weapon,” . . . [and] (4) “Find

him guilty because he deserves it.’” (Doc. 10 at 16) Root further argues that trial

counsel rendered ineffective assistance by not objecting and moving for a mistrial

because “the prosecutor’s closing arguments shifted the burden onto the defense.”

(Doc. 1 at 12)

The state post-conviction court denied this ground in Root’s Rule 3.850

motion (Respondent’s Exhibit 3B, order denying in part and dismissing in part

Root’s Rule 3.850 motion at 17–18) (footnotes omitted):

[T]he Defendant alleges that his trial counsel was ineffective

for failing to object to the prosecutor’s numerous improper

arguments during closing argument. In support of this claim,

the Defendant alleges that the prosecutor “repeatedly gave his

personal opinion that Mr. Root was guilty,” and “the case was

murder.”

Wide latitude is afforded to counsel in closing arguments.

Counsel’s role in closing argument is to assist the jury in

analyzing the evidence. To that end, the prosecutor may

state his contentions as to the conclusions the jury should draw

from the evidence but may not express his personal opinion as

to the merits of the case or as to the credibility of the witnesses.

Although the Defendant is correct in pointing out that improper

argument by a prosecutor without objection is a proper

subject for a Rule 3.850 motion, the Defendant has failed to

demonstrate that any objection was called for in this case.

Most of the snippets of argument relied on by the Defendant

under this ground fall short of offending the prohibitions

against expressing personal opinion. Moreover, upon review

of the closing arguments in their entirety, the court finds that

the remaining complained of comment — “I can’t imagine a

better example of an indifference to human life than that. I

can’t.” — was not so pervasive as to undermine confidence in

the outcome of this case. Thus, the Defendant has not satisfied

the necessary Strickland prejudice prong. A defense counsel’s

failure to object to improper closing arguments by the State is

not ineffective without prejudice. This claim is, therefore,

denied.

Closing argument is designed to “assist the jury in analyzing, evaluating and

applying the evidence.” United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984).

While he may not go beyond the evidence presented to the jury, the prosecutor is

not limited to a bare recitation of the facts. The prosecutor may comment on the

evidence and express the conclusions he contends the jury should draw from the

evidence. United States v. Johns, 734 F.2d 657, 663 (11th Cir. 1984). In Florida, while

“wide latitude is permitted in arguing to a jury,” Breedlove v. State, 413 So. 2d 1, 8

(Fla. 1982), such latitude does not extend to permitting improper argument. Gore v.

State, 719 So. 2d 1197, 1200 (Fla. 1998).

To prove prosecutorial misconduct Root must show that the challenged

conduct was both improper and prejudiced his substantial rights. Sexton v.

Howard, 55 F.3d 1557, 1559 (11th Cir. 1995). “A defendant’s substantial rights are

prejudicially affected when a reasonable probability arises that, but for the remarks,

the outcome [of the trial] would be different.” United States v. Hunte, 559 F. App’x

825, 833 (11th Cir. 2014) (citing Johnson v. United States, 520 U.S. 461, 469–70

(1997)). “[I]t is not enough that the prosecutors’ remarks were undesirable or even

universally condemned.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). See also

Smith v. Phillips, 455 U.S. 209, 219 (1982) (“[T]he touchstone of due process analysis

in cases of alleged prosecutorial misconduct is the fairness of the trial, not the

culpability of the prosecutor.”). Darden, 477 U.S. at 181, teaches:

The relevant question is whether the prosecutors’ comments

“so infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly v. DeChristoforo,

416 U.S. 637, [643] . . . (1974). Moreover, the appropriate

standard of review in a petition for the writ of habeas corpus is

“the narrow one of due process, and not the broad exercise of

supervisory power.” Id., at 642 . . . .

Accord Tucker v. Kemp, 802 F.2d 1293, 1296 (11th Cir. 1986) (en banc) (“If a reviewing

court is confident that, absent the improper remarks, the jury’s decision would have

been no different, the proceeding cannot be said to have been fundamentally

unfair.”), cert. denied, 480 U.S. 911 (1987); United States v. Young, 470 U.S. 1, 11

(1985) (“[A] criminal conviction is not to be lightly overturned on the basis of a

prosecutor’s comments standing alone, for the statements or conduct must be viewed

in context; only by doing so can it be determined whether the prosecutor’s conduct

affected the fairness of the trial.”).

Taken in the context of the entire trial, the prosecutor’s comments, even if

improper, neither rendered the trial fundamentally unfair nor infected the trial with

such unfairness that the resulting conviction amounts to a denial of due process.

See Tucker v. Kemp, 802 F.2d at 1296. Root fails to show that, if counsel had

objected to the challenged remarks in the prosecutor’s closing argument, the jury

would have acquitted him. Consequently, Root fails to meet his burden of proving

that the state court unreasonably applied controlling Supreme Court precedent or

unreasonably determined the facts by rejecting this ground.5 28 U.S.C. § 2254(d)(1),

(d)(2).

Accordingly, Root’s application for the writ of habeas corpus (Doc. 1) is

DENIED. The clerk must enter a judgment against Root and close this case.

5 In his memorandum of law in support of each ground for relief Root states that “[e]ven if

the individual allegations (instances) of ineffective assistance of counsel, when considered

individually do not provide adequate prejudice or harm to require the sought relief, the synergy of

the allegations when considered cumulatively does clearly reach and exceed the requisite harm

demanding relief.” (Doc. 2 at 8, 10, 12, 15) To the extent that Root asserts a cumulative error claim

as an independent basis for relief, he cannot obtain relief.

“Without harmful errors, there can be no cumulative effect compelling reversal.”

United States v. Barshov, 733 F.2d 842, 852 (11th Cir. 1984), cert. denied, 469 U.S. 1158 (1985).

See also Conklin v. Schofield, 366 F.3d 1191, 1210 (11th Cir. 2004) (“[T]he court must consider

the cumulative effect of [the alleged errors] and determine whether, viewing the trial as a whole,

[petitioner] received a fair trial as is [his] due under our Constitution.”). Because each of Root’s

claims of ineffective assistance of counsel lacks merit, no cumulative prejudicial effect results. See

Spears v. Mullin, 343 F.3d 1215, 1251 (10th Cir. 2003) (“Because the sum of various zeroes remains

zero, the claimed prejudicial effect of [counsel’s] cumulative errors does not warrant habeas relief.”);

Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir.) (“The Supreme Court has not held that distinct

constitutional claims can be cumulated to grant habeas relief.”), amended on other grounds, 307 F.3d

459 (6th Cir. 2002), cert. denied, 538 U.S. 947 (2003).

DENIAL OF BOTH

A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Root is not entitled to a certificate of appealability (“COA”). A prisoner

seeking a writ of habeas corpus has no absolute entitlement to appeal a district

court’s denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court

must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

To merit a COA, Root must show that reasonable jurists would find debatable both

the merits of the underlying claims and 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, Root is entitled

to neither a COA nor leave to appeal in forma pauperis.

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

forma pauperis is DENIED. Root must obtain permission from the circuit court to

appeal in forma pauperis.

ORDERED in Tampa, Florida, on January 11, 2021.

Mia Wnrryelurs

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

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