a petitioner abandons a claim when he receives an evidentiary hearing and fails to raise the claim in a brief on appeal
How later courts described this case
- a petitioner abandons a claim when he receives an evidentiary hearing and fails to raise the claim in a brief on appeal
- opining a petitioner bears the burden of establishing the need for an evidentiary hearing with more than speculative and inconcrete claims of need
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MICHAEL BOYINGTON,
Petitioner,
vs. Case No. 3:18-cv-810-BJD-MCR
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
I. INTRODUCTION
Through counsel, Petitioner Michael Boyington filed a Petition for Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Petition) (Doc. 1). Petitioner
challenges his state court (Suwannee County) conviction for attempted murder
in the second degree with a firearm and aggravated assault with a firearm.
He filed Exhibits (Doc. 3). Respondents filed an Answer to Petition for Writ
of Habeas Corpus (Response) (Doc. 14).1 Petitioner filed a notice that he did
1 Respondents filed an Appendix (Doc. 14). In this opinion, the Court references the page
numbers assigned by the electronic filing system.
not intend to file a reply (Doc. 16). See Order (Doc. 4). Respondents calculate
the Petition is timely. Response at 6-7.
II. EVIDENTIARY HEARING
“In a habeas corpus proceeding, the burden is on the petitioner to
establish the need for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of
Corr., 834 F.3d 1299, 1318 (11th Cir. 2016) (citations omitted), cert. denied,
137 S. Ct. 2245 (2017). To be entitled to an evidentiary hearing, the petitioner
must allege “facts that, if true, would entitle him to relief.” Martin v. United
States, 949 F.3d 662, 670 (11th Cir.) (quoting Aron v. United States, 291 F.3d
708, 715 (11th Cir. 2002)) (citation omitted), cert. denied, 141 S. Ct. 357 (2020).
See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011)
(opining a petitioner bears the burden of establishing the need for an
evidentiary hearing with more than speculative and inconcrete claims of need),
cert. denied, 565 U.S. 1120 (2012); Dickson v. Wainwright, 683 F.2d 348, 351
(11th Cir. 1982) (same).
If the allegations are contradicted by the record, patently frivolous, or
based upon unsupported generalizations, the court is not required to conduct
an evidentiary hearing. Martin, 949 F.3d at 670 (quotation and citation
omitted). In this case, the pertinent facts are fully developed in this record or
2
the record otherwise precludes habeas relief; 2 therefore, the Court can
"adequately assess [Petitioner's] claim[s] without further factual
development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert.
denied, 541 U.S. 1034 (2004). Petitioner has not met his burden as the record
refutes the asserted factual allegations or otherwise precludes habeas relief.
Therefore, the Court finds Petitioner is not entitled to an evidentiary hearing.
Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
III. HABEAS REVIEW
Petitioner raises six grounds for habeas relief. In a federal habeas
proceeding, a reviewing court asks whether the petitioner is detained “in
violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3). The Antiterrorism and Effective Death Penalty Act
(AEDPA) governs a state prisoner's federal petition for habeas corpus and
“restricts the power of federal courts to grant writs of habeas corpus based on
claims that were ‘adjudicated on the merits’ by a state court.” Shinn v. Kayer,
141 S. Ct. 517, 520 (2020) (per curiam). See 28 U.S.C. § 2254; Sealey v.
Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir. 2020) (citation
omitted) (acknowledging the deferential framework of AEDPA for evaluating
2 Petitioner was represented by counsel in the state-court post-conviction proceeding, and
the state court conducted an evidentiary hearing.
3
issues previously decided in state court), petition for cert. filed, (U.S. Nov. 6,
2020); Shoop v. Hill, 139 S. Ct. 504, 506 (2019) (per curiam) (recognizing
AEDPA imposes “important limitations on the power of federal courts to
overturn the judgments of state courts in criminal cases").
The Eleventh Circuit describes this framework:
[federal courts] are prohibited from granting a state
prisoner’s habeas corpus petition unless the relevant
state court decision on the merits of the petitioner’s
claim ‘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) ‘was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.’
James v. Warden, Holman Corr. Facility, 957 F.3d 1184, 1190 (11th Cir. 2020)
(quoting 28 U.S.C. § 2254(d)(1)-(2)), petition for cert. filed, (U.S. Nov. 18, 2020).
The high hurdle described above is not easily surmounted:
A decision is “contrary to” clearly established
federal law if the state court applied a rule that
contradicts governing Supreme Court precedent, or if
it reached a different conclusion than the Supreme
Court did in a case involving materially
indistinguishable facts. Williams v. Taylor, 529 U.S.
362, 412-13, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000).
A state court decision involves an “unreasonable
application” of clearly established federal law if the
court identifies the correct legal principle but applies
it unreasonably to the facts before it. Id. “The question
under AEDPA is not whether a federal court believes
the state court’s determination was incorrect but
4
whether that determination was unreasonable – a
substantially higher threshold.” Schriro v.
Landrigan, 550 U.S. 465, 127 S. Ct. 1933, 167 L.Ed.2d
836 (2007).
James, 957 F.3d at 1190-91. Indeed, if the state court applied clearly
established federal law to reasonably determined facts when determining a
claim on its merits, “a federal habeas court may not disturb the state court’s
decision unless its error lies ‘beyond any possibility for fairminded
disagreement.’” Kayer, 141 S. Ct. at 520 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)).
A state court's finding of fact, whether a state trial court or appellate
court, is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1).
“The state court’s factual determinations are presumed correct, absent clear
and convincing evidence to the contrary.” Sealey, 954 F.3d at 1354 (quoting
28 U.S.C. § 2254(e)(1)). This presumption of correctness, however, applies
only to findings of fact, not mixed determinations of law and fact. Brannan v.
GDCP Warden, 541 F. App'x 901, 903-904 (11th Cir. 2013) (per curiam)
(recognizing the distinction between a pure question of fact from a mixed
question of law and fact), cert. denied, 573 U.S. 906 (2014). Furthermore, the
second prong of § 2254(d), requires this Court to “accord the state trial court
[determination of the facts] substantial deference.” Dallas v. Warden, 964
5
F.3d 1285, 1302 (11th Cir. 2020) (quoting Brumfield v. Cain, 576 U.S. 305, 314
(2015)). As such, a federal district court may not supersede a state trial
court’s determination simply because reasonable minds may disagree about
the finding. Id. (quotation and citation omitted).
Finally, where there has been one reasoned state court judgment
rejecting a federal claim followed by an unexplained order upholding that
judgement, federal habeas courts employ a "look through" presumption: "the
federal court should 'look through' the unexplained decision to the last related
state-court decision that does provide a relevant rationale. It should then
presume that the unexplained decision adopted the same reasoning." Wilson
v. Sellers, 138 S. Ct. 1188, 1192 (2018) (Wilson).
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner raises several grounds claiming the ineffective assistance of trial
counsel. Claims of ineffective assistance of counsel are “governed by the familiar
two-part Strickland[v. Washington, 466 U.S. 668 (1984)] standard.” Knight v. Fla.
Dep’t of Corr., 958 F.3d 1035, 1038 (11th Cir. 2020), petition for cert. filed, (U.S. Jan.
7, 2021). Petitioner must make the familiar two-pronged showing:
“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
6
deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L.Ed.2d 674 (1984). Because the petitioner
must make the required showing on both prongs of the
Strickland test, a court may conduct its inquiry in any
order and need not address both components of the test if
the petitioner's showing falls short on either one. Id. at 697,
104 S. Ct. 2052. In particular, where it is easier to avoid
assessing counsel's performance and resolve the
petitioner's claim on the ground that he has not made a
sufficient showing of prejudice, courts are encouraged to do
so. Id.
Lee v. GDCP Warden, No. 19-11466, 2021 WL 507897, at *9 (11th Cir. Feb. 11, 2021).
The Eleventh Circuit warns:
because “[t]he standards created by Strickland and §
2254(d) are both ‘highly deferential,’ . . . when the two
apply in tandem, review is ‘doubly’ so. Harrington [v.
Richter, 562 U.S. 86, 105 (2011)] (internal citations
and quotation omitted). Thus, under § 2254(d), “the
question is not whether counsel’s actions were
reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.
Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020) petition
for cert. filed, (U.S. Feb. 11, 2021).
V. GROUND ONE
In the first ground of the Petition, Petitioner claims his trial counsel was
ineffective for failure to seek immunity from prosecution under Florida’s Stand
Your Ground law. Petition at 14. Yes, Petitioner exhausted this ground by
presenting it in his Verified Amended Rule 3.850 motion in sub-claim 1B.
7
(Doc. 14-7 at 213-15).3 Petitioner argued his counsel should have raised the
issue pre-trial, bearing the burden of proving entitlement to the immunity by
only a preponderance of the evidence, relying on Hair v. State, 17 So. 3d 804,
850 (Fla. 1st DCA 2009) (per curiam). (Doc. 14-7 at 213-14). Petitioner
asserted his counsel’s failure to pursue this claim to immunity pre-trial was
patently unreasonable. Id. at 214.
Relying on the Strickland two-pronged standard, the trial court denied
the Rule 3.850 motion. (Doc. 14-8 at 96-97). On May 2, 2018, the 1st DCA
affirmed per curiam. (Doc. 14-10 at 163-64). The mandate issued on May 23,
2018. Id. at 166. As the trial court properly applied the two-pronged
Strickland standard of review, Petitioner cannot satisfy the “contrary to” test
of 28 U.S.C. § 2254(d)(1) as the state court rejected Petitioner’s claim based on
Strickland.
Of import, the trial court found Petitioner failed to satisfy the
performance prong of Strickland. In denying post-conviction relief, the court
noted that defense counsel was aware of the Stand Your Ground immunity
statute. (Doc. 14-8 at 100). The court also concluded that counsel not only
understood the law and its burdens, he made a sound strategic decision not to
3 Post-conviction counsel advised the trial court that the Defendant’s Verified Amended
Motion for Post-Conviction Relief would be the operative motion for the evidentiary hearing
(Doc. 14-8 at 95-96), and the court treated it as such. This Court will follow suit.
8
pursue the Stand Your Ground immunity claim pre-trial. Id. at 101. As
such, the court found Petitioner’s claim for relief without merit. Id.
The post-conviction state court evidentiary hearing demonstrates the
following. Petitioner’s trial counsel, Baya Harrison, is a very experienced
criminal defense lawyer and was considered to be experienced counsel at the
time of Petitioner’s trial. (Doc. 14-8 at 166-67). “When courts are examining
the performance of an experienced trial counsel, the presumption that his
conduct was reasonable is even stronger.” Hardwick v. Benton, 318 F. App’x
844, 846 n.2 (11th Cir. 2009) (per curiam) (quoting Chandler v. United States,
218 F.3d 1305, 1316 (11th Cir.2000)). Here, the trial court found Petitioner
failed to overcome the presumption of effective performance accorded to his
counsel.
Indeed, the record shows defense counsel understood the law. He knew
the burden of proving immunity “is by a preponderance of the evidence.” (Doc.
14-8 at 196). He also recognized that in order to obtain immunity, as a
practical matter, counsel would need to show that the defendant had the right
to use deadly force. Id. at 196-97. He also understood, as a logistical matter,
if the defendant lost the claim to immunity, it would have serious consequences
because the state was going to have the defendant’s testimony from the pre-
trial proceeding to use against the defendant at trial because defense counsel
9
would need to call the defendant at the pre-trial proceeding to prove up the
claim of immunity. Id. at 197-98.
Petitioner claims his counsel was ill-advised about the law and did not
understand that the state had to prove, by clear and convincing evidence, that
Petitioner was not entitled to immunity after Petitioner established a prima
facie claim of immunity. Petition at 18. Simply, that was not the case at the
time of Petitioner’s trial in 2008, as the law placed the burden on the defendant
to show entitlement to immunity by a preponderance of the evidence.
Peterson v. State, 983 So. 2d 27, 29 (Fla. 1st DCA 2008). It was not until June
9, 2017, that the law became effective placing the burden on the state to prove
by clear and convincing evidence “to overcome the immunity from criminal
prosecution[.]” Fla. Stat. § 776.032(4) (2017), enacted by Chapter 2017-72,
Laws of Florida. Since any immunity hearing for Petitioner’s trial would have
taken place long before the statute’s effective date, the provision would have
been inapplicable to Petitioner’s case. Love v. State, 286 So. 3d 177, 180 (Fla.
2019) (finding the statute applicable to immunity hearings taking place on or
after the effective date).
The trial court, in denying the Rule 3.850 motion, thoroughly explained
why it rejected this claim for post-conviction relief, stating the court had
reviewed and analyzed the claim and found trial counsel’s explanation for
10
making his decision not to raise the Stand Your Ground immunity claim prior
to trial “a sound strategic decision and therefore not ineffective assistance of
counsel.” (Doc. 14-8 at 101). Respondents argue that competent substantial
evidence supported counsel’s decision not to move to dismiss under Fla. Stat. §
776.032. Response at 28. This Court agrees. When counsel made a
strategic decision not to raise the Stand Your Ground immunity issue prior to
trial, he based it on the state of the law at the relevant time, and he knew and
understood the Stand Your Ground law and made a strategic decision not to
raise the matter pre-trial. See Edwards v. Marshall, No. 7:17-cv-00571-ACA-
JHE, 2019 WL 4408447, at *7 (N.D. Ala. Apr. 23, 2019) (not reported in F.
Supp.) (acknowledging the strategic decision of counsel not to raise Stand Your
Ground immunity prior to trial, and finding the state court’s conclusion that
counsel was not ineffective “was neither an unreasonable application of nor
contrary to Strickland”), report and recommendation adopted by 2019 WL
3229379 (N.D. Ala. July 18, 2019). A decision to not lodge a stand-your-
ground challenge pre-trial is “the kind of reasonable strategic decision that
cannot be attacked through a collateral claim of ineffectiveness.” Edwards v.
A.G., Ala., No. 19-13739-G, 2020 WL 1540405, at *3 (11th Cir. 2020) (citing
Ward v. Hall, 592 F.3d 1144, 1164 (11th Cir. 2010)).
11
The Court finds the state court’s determination is consistent with federal
precedent. The 1st DCA’s decision, although unexplained, is entitled to
AEDPA deference. Applying the look through presumption described in
Wilson, the state court’s ruling is based on a reasonable determination of the
facts and a reasonable application of the law. In short, the state court’s
adjudication of the claim is not contrary to or an unreasonable application of
Strickland and its progeny or based on an unreasonable determination of the
facts. Therefore, the state court’s decision is entitled to deference and ground
one is due to be denied.
VI. GROUNDS TWO AND FOUR
In his second ground, Petitioner claims he was deprived of a
fundamentally fair trial due to prosecutorial misconduct. Petition at 21.
Petitioner asserts the prosecutor violated the exclusionary rule when he
repeatedly, knowingly, deliberately, and successfully disobeyed previous court
holdings during the course of the trial. Id. at 24. In ground four of the
Petition, Petitioner raises a claim of ineffective assistance of counsel for failure
to move for a mistrial based upon various instances of prosecutorial
misconduct, pointing to Williams Rule evidence. 4 Petition at 26-27.
4 Williams v. State., 110 So. 2d 654 (Fla. 1959), cert. denied, 361 U.S. 847 (1959).
12
Petitioner contends that the prosecutors’ actions deprived him of a fair and
impartial trial in violation of his due process rights. Id. at 28.
The trial court record demonstrates, pre-trial, the state filed a Notice of
Intent to Offer Evidence of Other Crimes, Wrongs or Acts (Doc. 14-1 at 98-99).
The evidence concerned an incident which took place in Escambia County,
Florida, on September 7, 1997, which resulted in Petitioner being shot by a
police officer. Id. Although Petitioner was charged with aggravated assault
on a law enforcement officer with a firearm for pointing his gun at the officer,
the grand jury issued a no true bill. Id. at 101. Defense counsel filed a
Motion in Limine RE. Alleged Williams Rule Evidence and Request for
Evidentiary Hearing (Doc. 14-1 at 100-102). The trial court conducted a
Williams Rule hearing. Id. at 113. The hearing transcript is part of the
record. (Doc. 14-4 at 308-81). At a status conference on October 23, 2007,
defense counsel announced that the state decided not to proceed with Williams
Rule evidence. Id. at 390. The prosecutor confirmed that he would not
proceed with the Williams Rule evidence. Id. The trial court asked if no
ruling was needed on the evidentiary proceeding, and defense counsel
confirmed that was a correct assessment as the state had decided to proceed
without the Williams Rule evidence. Id. at 391.
13
Petitioner asserts that, at trial, during cross-examination, the prosecutor
improperly questioned Petitioner three times concerning the Escambia County
incident. The first question at issue is: “You just said you know how Mr.
Balint [the victim] feels getting shot. How do you know how he feels by
getting shot?” (Doc. 14-3 at 167). Defense counsel objected and argued to the
court that the state was trying to get in Williams Rule evidence by asking
Petitioner about the incident which took place in Pensacola, Florida. Id. at
167-68. The court said defense counsel did not open the door to Williams Rule
evidence and for the prosecutor to be cautious. Id. at 169-69. The prosecutor
tried to spin the matter, claiming he was addressing Petitioner’s truthfulness
about his prior record, and the court reminded the prosecutor that prior record
means conviction. Id. at 169. The prosecutor went back to this line of
questioning and asked how Petitioner knew how the victim felt, and once again
defense counsel objected and said the prosecutor was inviting error. Id. at
170-71. The court sustained the objection and told the prosecutor to move on,
reminding the prosecutor that the court had already ruled. Id. at 171. The
prosecutor asked to approach and again argued that the defense opened the
door. Id. The court said this had already been discussed, “and we’ve already
agreed we would not bring out, so once you start getting into a prior bad act by
cross-examination only on the fact he understands how the victim feels, that’s
14
reversible error and we don’t need to go there at this stage in the game, so the
objection is sustained. You need to move on.” Id. at 172.
Finally, the prosecutor inquired: “You’re claiming you’re a victim.
Who shot you?” Id. at 172. Defense counsel objected and the court sustained
the objection. Id.
In his Petition, Petitioner claims the prosecutor violated Petitioner’s due
process rights through this line of questioning. Petition at 27-88. Petitioner
further asserts that the prosecutor’s behavior warranted a mistrial, and
counsel’s failure to move for a mistrial constituted ineffective assistance of
counsel. Id. at 31.
The record shows Petitioner presented the claim of ineffective assistance
of counsel in sub-claim 1D of his post-conviction motion, and, after an
evidentiary hearing, the trial court denied relief. (Doc. 14-8 at 104-106). The
1st DCA affirmed. (Doc. 14-10 at 163).
At the evidentiary hearing, defense counsel explained why he filed a
motion in limine concerning the Williams Rule evidence. He testified:
I was advised by Mr. San Filipo [sic] (the prosecutor)
of two incidences that had occurred that would
constitute Williams Rule evidence. There was a
situation over in Pensacola where Mr. Boyington had
allegedly gotten drunk, been walking around his
neighborhood threatening people with a firearm. A
law enforcement officer came out to his house, the law
15
enforcement officer was in uniform, had his lights on,
taking all kinds of precautions. Mr. Boyington had
gone out the back door, when the officer knocked, came
around the side with his rifle, pointed it at the law
enforcement officer, whereupon the law enforcement
officer shot Mr. Boyington. Mr. San Filipo [sic] gave
me notice that he intended to introduce that evidence,
that specific evidence, as Williams Rule.
There was a second incident, Mr. Boyington
allegedly was in the neighborhood where this situation
occurred. He was intoxicated, he was harassing his
neighbors, threatening to kill them, threatening to kill
their animals, and getting generally this group upset.
Mr. San Filipo [sic] advised that he intended to
present that evidence. So I did the research, got the
facts together, filed motions in limine with regard to
those instances.
And to clarify what happened, we did have the
beginnings, as I recall, of a hearing, an evidentiary
hearing, and then Mr. San Filipo [sic] conceded that
this was not legitimate Williams Rule. And so there
was a gentleman [sic] understanding that the State
would not introduce the specific instances that I have
described.
(Doc. 14-8 at 170-71).
Thus, the two motions in limine were resolved in defense counsel’s favor.
Id. at 171. At the evidentiary hearing, Mr. Harrison testified he objected
every time the prosecutor tried to ask questions about Petitioner being shot or
the nature of the incidents. Id. at 186-87. Mr. Harrison attested the trial
court sustained his objections and Petitioner never answered the questions of
16
the prosecutor. Id. at 187. As such, Mr. Harrison concluded he did not have
any legal basis to move for a mistrial. Id. Finally, Mr. Harrison said he did
not want a mistrial. Id. He believed the trial was going as well as could be
expected. Id.
The trial court denied post-conviction relief finding defense counsel was
not ineffective. Id. at 106. The court noted that defense counsel not only
objected but he was ultimately successful in keeping the evidence from the
jury. Id. The court also credited Mr. Harrison’s testimony, as a seasoned and
experienced criminal trial lawyer “who was privy to a great deal of relevant
facts unknown to the State,” that “a mistrial would not have been a
strategically sound decision given that the trial was proceeding so well.”5 Id.
Upon review, Petitioner cannot satisfy the “contrary to” test of 28 U.S.C.
§ 2254(d)(1) as the state court rejected this claim based on Strickland.
Further, Petitioner has not shown the state court unreasonably applied
Strickland or unreasonably determined the facts. Indeed, the state court was
objectively reasonable in its Strickland inquiry. Applying the look-through
presumption described in Wilson, deference is due to the 1st DCA’s decision
5 Defense counsel explained his strategic decision not to seek a mistrial. He said he knew
facts that were unknown to the prosecutor, evidence that had not been presented by the state.
In particular, defense counsel knew why Petitioner was sitting in his chair and drinking beer
with his rifle in his hand prior to the shooting of the victim. (Doc. 14-8 at 210).
17
affirming the decision of the trial court in denying post-conviction relief. As
such, ground four is denied.
Alternatively, under the circumstances presented, defense counsel would
not have prevailed on a motion for mistrial as evidenced by the decision of the
trial court in denying post-conviction relief. A defense attorney need not make
a meritless motion that would not have obtained relief. Brewster v. Hetzel,
913 F.3d 1042, 1056 (11th Cir. 2019). Failing to satisfy the performance prong
of Strickland, Petitioner cannot prevail on his claim of ineffective assistance of
counsel as a petitioner must satisfy both prongs of the two-part standard.
Therefore, the Petition is due to be denied.
In sub-claim 1E of the Rule 3.850 motion, Petitioner raised a claim of
ineffective assistance of counsel “where counsel failed to move for mistrial due
to the state’s prejudicial questions and comments.” (Doc. 14-7 at 218-19).
Petitioner claimed the prosecutor used improper questions to inflame the
passions of the jury and create sympathy for the victim. Id. For example,
the prosecutor asked if the victim looked like a dog and asked if Petitioner ever
inquired as to whether the victim lived or died and how Petitioner felt about
the victim having to pay a half million dollars on his injuries to his stomach.
Id. at 219. The prosecutor also asked about Petitioner shooting the victim,
18
who said “I’m unarmed, I have no sidearm,” while Petitioner responded, “I’m
going to shoot you anyway.” Id.
Petitioner argues the victim never said these statements, and these
phrases were uttered by the prosecutor to inflame the prejudices and passions
of the jury against Petitioner. Id. at 220. Finally, Petitioner referenced the
argument of the prosecutor stating Petitioner admitted that he stood by the
tree, lined up his rifle, and used the excuse to shoot somebody to shoot the
victim and then rack another shell. Id. Petitioner urged the trial court to
find these comments were highly speculative and prejudicial to Petitioner. Id.
In his Rule 3.580 motion, Petitioner submitted his counsel was
ineffective because he “failed entirely to object to any one of these statements”
and failed to move for a mistrial. Id. at 220-21. Petitioner also claimed there
was resulting prejudice, undermining the confidence in the outcome of the
trial. Id. at 221.
It is not entirely clear Petitioner is attempting to raise the ground
presented in sub-claim 1E in his current Petition. He makes no mention of
these alleged instances of misconduct in the Petition. Assuming arguendo
Petitioner is raising the content of sub-claim 1E in his Petition, the claim is
due to be denied.
19
The trial court addressed Petitioner’s claim of prosecutorial misconduct
after conducting an evidentiary hearing. (Doc. 14-8 at 106-108). Trial
counsel testified at the evidentiary hearing that he did not find these
statements warranted objections and requests for mistrial. Counsel
explained that he is rather conservative in interrupting closing argument and
it was part of the defense strategy to let the prosecutor alienate the jury with
his aggressive behavior that was “over the top.” Id. at 107. The trial court
recognized the experience of defense counsel and credited his testimony. Id.
at 108.
This Court is not in a position to reassess the credibility determination
of the state trial court. Indeed, this Court must defer to the state court’s
findings of fact, 28 U.S.C. § 2254(e)(1), including applying deference to the trial
court’s credibility determination that resolves conflicting testimony. Baldwin
v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998), cert. denied, 526 U.S. 1047
(1999). Petitioner has not rebutted this presumption of correctness by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1).
After hearing all of the testimony, the trial court made a credibility
determination, essentially finding Mr. Harrison’s testimony to be more
credible and persuasive. “Federal habeas courts have ‘no license to
redetermine credibility of witnesses whose demeanor has been observed by the
20
state trial court, but not by them.’” Consalvo v. Sec’y for Dep’t of Corr., 664
F.3d 842, 845 (11th Cir. 2011) (per curiam) (quoting Marshall v. Lonberger,
459 U.S. 422, 434 (1983)), cert. denied, 568 U.S. 849 (2012). Since the trial
court observed Mr. Harrison’s testimony and found it more credible, this Court
will not make a redetermination concerning his credibility.
Finally, Mr. Harrison explained that his conduct was part of his trial
strategy, and the reviewing court found this to be “sound trial strategy.” (Doc.
14-8 at 108). As such, the court found the claim meritless and denied relief.
Id. The 1st DCA affirmed (Doc. 14-10 at 163).
In denying post-conviction relief, the trial court properly applied the two-
pronged Strickland standard of review. Petitioner cannot satisfy the
“contrary to” test of 28 U.S.C. § 2254(d)(1) as the state court rejected this claim
based on Strickland. Further, Petitioner has not shown the state court
unreasonably applied Strickland or unreasonably determined the facts.
Indeed, upon review, the state court was objectively reasonable in its
Strickland inquiry. Furthermore, the 1st DCA affirmed the decision of the
trial court.
The Court finds the state court’s determination is consistent with federal
precedent. The 1st DCA’s decision, although unexplained, is entitled to
AEDPA deference. Applying the look through presumption described in
21
Wilson, the state court’s ruling is based on a reasonable determination of the
facts and a reasonable application of the law. In brief, the state court’s
adjudication of the claim is not contrary to or an unreasonable application of
Strickland and its progeny or based on an unreasonable determination of the
facts. This claim is due to be denied.
In their Response, Respondents assert sub-claim 1F is unexhausted and
procedurally defaulted.6 Response at 9-11. To the extent Petitioner is
attempting to raise the claim presented in sub-claim 1F of his Rule 3.850
motion in his federal Petition, the claim is unexhausted and procedurally
defaulted. The doctrine of procedural default requires the following:
Federal habeas courts reviewing the
constitutionality of a state prisoner's conviction and
sentence are guided by rules designed to ensure that
state court judgments are accorded the finality and
respect necessary to preserve the integrity of legal
proceedings within our system of federalism. These
rules include the doctrine of procedural default, under
which a federal court will not review the merits of
claims, including constitutional claims, that a state
court declined to hear because the prisoner failed to
abide by a state procedural rule. See, e.g., Coleman,[7]
6 Sub-claim 1F is a claim of ineffective assistance of counsel for failure to object to the state’s
misstatements of the record, the improper appeal to the jury’s passions, and the improper
expression of personal opinion as to the veracity of testimony and Petitioner’s guilt. (Doc.
14-7 at 221).
7 Coleman v. Thompson, 501 U.S. 722 (1991).
22
supra, at 747-748, 111 S. Ct. 2546; Sykes,[8] supra, at
84-85, 97 S. Ct. 2497. A state court's invocation of a
procedural rule to deny a prisoner's claims precludes
federal review of the claims if, among other requisites,
the state procedural rule is a nonfederal ground
adequate to support the judgment and the rule is
firmly established and consistently followed. See, e.g.,
Walker v. Martin, 562 U.S. ----, ----, 131 S. Ct. 1120,
1127-1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler,
558 U.S.----, ----, 130 S. Ct. 612, 617-618, 175 L.Ed.2d
417 (2009). The doctrine barring procedurally
defaulted claims from being heard is not without
exceptions. A prisoner may obtain federal review of a
defaulted claim by showing cause for the default and
prejudice from a violation of federal law. See Coleman,
501 U.S., at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012).
A petition for writ of habeas corpus should not be entertained unless the
petitioner has first exhausted his state court remedies. Castille v. Peoples,
489 U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S. 509 (1982). A procedural
default arises "when 'the petitioner fails to raise the [federal] claim in state
court and it is clear from state law that any future attempts at exhaustion
would be futile.'" Owen v. Sec'y, Dep't of Corr., 568 F.3d 894, 908 n.9 (11th
Cir. 2009) (quoting Zeigler v. Crosby, 345 F.3d 1300, 1304 (11th Cir. 2003)),
cert. denied, 558 U.S. 1151 (2010).
8 Wainwright v. Sykes, 433 U.S. 72 (1977).
23
There are, however, allowable exceptions to the procedural default
doctrine; "[a] prisoner may obtain federal review of a defaulted claim by
showing cause for the default and prejudice from a violation of federal law."
Martinez, 566 U.S. at 10 (citing Coleman, 501 U.S. at 750). To demonstrate
cause, a petitioner must show some objective factor external to the defense
impeded his effort to properly raise the claim in state court. Wright v.
Hopper, 169 F.3d 695, 703 (11th Cir.), cert. denied, 528 U.S. 934 (1999). If
cause is established, a petitioner must demonstrate prejudice. To
demonstrate prejudice, a petitioner must show "there is at least a reasonable
probability that the result of the proceeding would have been different had the
constitutional violation not occurred." Owen, 568 F.3d at 908.
Alternatively, a petitioner may obtain review of a procedurally barred
claim if he satisfies the actual innocence “gateway” established in Schlup v.
Delo, 513 U.S. 298 (1995). The gateway exception is meant to prevent a
constitutional error at trial from causing a miscarriage of justice and conviction
of the actually innocent. Kuenzel v. Comm’r, Ala. Dep’t of Corr., 690 F.3d
1311, 1314 (11th Cir. 2012) (per curiam) (quoting Schlup, 513 U.S. at 324), cert.
denied, 569 U.S. 1004 (2013).
As noted by the trial court, “[i]n the Defendant’s written closing
argument, the Defendant conceded that no relief was warranted regarding this
24
ground (sub-claim 1F) because trial counsel’s explanation appears ‘objectively
reasonable.[’]” (Doc. 14-8 at 126). The court concluded that no further
analysis was necessary due to this concession by Petitioner’s counsel. Id.
Based on Petitioner’s abandonment of the claim raised in sub-claim 1F of his
post-conviction motion, the claim is unexhausted and procedurally defaulted.
It is clear from state law that any future attempts at exhaustion of this ground
would be futile. As such, Petitioner has procedurally defaulted this ground
for relief. Upon review, he has failed to show cause and prejudice or that a
fundamental miscarriage of justice will result if the Court does not reach the
merits of this ground.
Finally, with regard to ground two of the Petition, the Court concludes
Petitioner was not deprived of a fair trial based on prosecutorial misconduct.
Although not a model of clarity, ground two of the Petition seems to be based
on the claim raised in sub-claim 1D of the post-conviction motion as, in that
ground for post-conviction relief, Petitioner claims the prosecutor violated the
exclusionary rule when he repeatedly, knowingly, deliberately, and
successfully disobeyed previous court holdings during the course of the trial.
Apparently, the previous court holdings referenced in this ground are the trial
court’s rulings on the motions in limine. As explained by trial counsel, both
motions in limine were resolved in Petitioner’s favor as the prosecutor agreed
25
that the evidence at issue was not legitimate Williams Rule evidence and
agreed to leave it out of the trial. When the prosecutor attempted to get this
excluded evidence before the jury, defense counsel repeatedly objected and the
trial court sustained the objections, keeping the evidence from the jury and
admonishing the prosecutor to tread carefully. As such, Petitioner was not
deprived of a fair trial.
Alternatively, to the extent the prosecutor’s comments were before the
jury, they were not so harmful or inflammatory as to require a new trial.
Petitioner is not entitled to habeas relief on ground two.
VII. GROUND THREE
In his third ground for relief, Petitioner raises a claim of ineffective
assistance of counsel for failure to inform Petitioner of a favorable plea offer of
eight years in prison. Petition at 25-26. Petitioner asserts the trial court’s
decision on this issue “was based on an unreasonable determination of the facts
in light of the evidence received at the post-conviction hearing[.]” Id. at 25
(capitalization omitted).
The record shows, at sentencing, Mr. Harrison addressed an error in the
Pre-Sentence Investigation (PSI). The PSI referenced a state’s offer of eight
years of probation. Mr. Harrison, in his attempt to correct the error in the
PSI said, “the best plea offer we got in the case was pretrial and it was for eight
26
years state prison.” (Doc. 14-3 at 286-87). The court said the PSI would be
corrected to reference prison but “[i]ts a nonaccepted offer to plea bargain the
case, so, it’s not relevant –” Id. Mr. Harrison responded, “[r]ight.”
Mr. Fagan, Petitioner’s other attorney at sentencing, asked that the
court not give Petitioner a lengthy sentence in a case where the state “offered
Mr. Boyington 8 years in Florida State Prison.” Id. at 312. The state
objected to this statement, and the court sustained the objection. Id.
At the evidentiary hearing on the post-conviction motion, Mr. Harrison
explained that the state never made an eight-year plea offer for prison time.
(Doc. 14-8 at 176). More specifically, Mr. Harrison referenced the August 3,
2007 correspondence in which the prosecutor said he would consider a plea
deal of ten-years in prison with jail credit, which would mean Petitioner should
be out in six or seven years. Id. at 178. Mr. Harrison said this was an
incorrect estimation on the prosecutor’s part because there is an 85 percent
law in Florida, so this was “an overstatement by Mr. San Filipo [sic].” Id.
Also, this was not a guaranteed offer because the prosecutor did not have the
victim’s permission to make the offer, so this was merely a proposal that had
not yet been accepted by the victim. Id. at 179. Thus, Mr. Harrison stated,
there was not a “naked, specific eight-year plea offer[.]” Id. Instead, the last
offer by the prosecutor was the ten-year offer, as reflected in the e-mail. Id.
27
Mr. Harrison testified he discussed this last ten-year offer with
Petitioner, and Mr. Harrison explained to Petitioner that jail time would come
off and Florida was under the 85 percent law so Petitioner could possibly earn
gain time. Id. at 180. Mr. Harrison attested that Petitioner was not
interested in a plea offer and turned down the state’s conditional plea offer of
ten years in prison. Id. at 180-182. Of import, at the evidentiary hearing,
the investigator, Mr. Wayne Nash, testified that although he did not
specifically discuss potential plea offers with Petitioner, during their
discussions, Petitioner was adamant that he did not commit a crime and was
disinterested in resolving the case through a plea. Id. at 213.
The trial court found Mr. Harrison’s testimony credible and his
explanation reasonable, concluding there was no “‘eight-year’ plea offer
extended by the state.” Id. at 100. Alternatively, the trial court, assuming
arguendo there had been an eight-year plea offer, credited the testimony of
trial counsel and Mr. Nash, that Petitioner “likely would not have accepted it”
because Petitioner was adamant that he did not commit a crime and expressed
his unwavering opinion that he was not willing to resolve the case by entering
a plea to a crime he did not commit. Id.
As stated previously, as the state court judge observed Mr. Harrison’s
and Mr. Nash’s testimony and found it more credible, this Court will not make
28
a redetermination concerning their credibility. The state court’s credibility
determinations are presumed to be correct, and the presumption has not been
rebutted by clear and convincing evidence.
Mr. Harrison’s explanation that the state’s last offer, a conditional offer
of ten years in prison rejected by Petitioner even though it was apparent that
he would have been eligible for jail time and possibly gain time, would have
resulted in Petitioner serving less than the full ten years in prison (perhaps
less than eight years, if reduced by jail time and possible gain time through
the 85 percent law) 9 if the conditional offer had been accepted by both the
victim and Petitioner. Defense counsel’s explanation certainly constituted a
reasonable explanation. Finally, the written documentation submitted to the
Court does not show a state’s plea offer of eight years in prison; it shows the
state’s conditional, “one last final offer” of ten years in prison followed by
probation. (Doc. 14-8 at 65).
The 1st DCA affirmed the decision of the trial court applying the
Strickland standard of review and denying Petitioner’s claim of ineffective
assistance of counsel. (Doc. 14-10 at 163). The Court finds the state court’s
determination is consistent with federal precedent. Although unexplained,
9 Petitioner received 595 days as credit for time incarcerated in jail (jail time). (Doc. 14-1
at 231).
29
the 1st DCA’s decision is entitled to AEDPA deference. Applying the look-
through presumption set forth in Wilson, the state court’s ruling is based on a
reasonable determination of the facts and a reasonable application of the law.
Ground three is due to be denied as the state court’s adjudication of the claim
is not contrary to or an unreasonable application of Strickland and its progeny
or based on an unreasonable determination of the facts. As such, the Court
finds Petitioner is not entitled to habeas relief on ground three.
VIII. GROUND FIVE
Respondents assert ground five is procedurally defaulted. Response at
12. This contention is based on Petitioner’s concession that he was not
entitled to relief on this ground; “[t]he Defendant concedes in his written
closing argument that no relief is warranted with regard to this independent
claim as it ‘appears now without evidentiary support.’” (Doc. 14-8 at 127).
Finding no analysis necessary under these circumstances, the trial court
denied relief on the claim Petitioner was denied his Sixth Amendment right to
counsel of choice where trial counsel failed to withdraw upon request. Id.
Furthermore, Petitioner abandoned this claim in his appeal of the denial of
post-conviction relief. (Doc. 14-10 at 97-98). Atwater v. Crosby, 451 F.3d
799, 810 (11th Cir. 2006) (a petitioner abandons a claim when he receives an
evidentiary hearing and fails to raise the claim in a brief on appeal), cert.
30
denied, 549 U.S. 1124 (2007); Baker v. Dep’t of Corr., Sec’y, 634 F. App’x 689,
692 (11th Cir. 2015) (per curiam) (same). Thus, Petitioner failed to give the
state courts one full opportunity to resolve the constitutional issue “by invoking
one complete round of the State’s established appellate review process.”
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Petitioner cannot show cause and prejudice sufficient to overcome this
procedural default. Furthermore, Petitioner has not shown that a
fundamental miscarriage of justice will result if the Court does not address
this ground. Therefore, ground five is due to be denied as unexhausted and
procedurally defaulted.
IX. GROUND SIX
In his sixth ground for relief, Petitioner claims, “the trial court
committed fundamental error by instructing the jury in a way that was
inconsistent with the statu[t]e at issue.” Petition at 35 (capitalization
omitted). Petitioner complains the instruction given improperly limited the
scope of Petitioner’s defense because it added the phrase “could be avoided only
through the use of that force.” Id. Petitioner asserts, standard jury
instruction 3.6(f) is at odds with Petitioner’s defense, improperly limiting the
scope of the defense. Id. Petitioner explains this contention: “[t]he
inherent contradictory reasonings supplied by Florida’s ‘Stand your Ground
31
Statu[t]e’ and the jury instructions used in this case deprived Boyington of
actual notice. The statu[t]e makes no mention that Boyington may use deadly
force only as an option of last resort, yet the jury instructions pronounce this
caveat.” Id. at 36. Petitioner asserts that reading jury instruction 3.6(f) in
the context of the overall charge negated Petitioner’s right to use deadly force
when deemed appropriate, not as a matter of last resort. Id.
As noted by Respondents, Response at 14, Petitioner raised a comparable
claim on direct appeal in “Issue V: whether the trial court committed
fundamental error by instructing the jury in a way that is inconsistent with
the ‘stand your ground’ statute[.]” (Doc. 14-4 at 403) (capitalization omitted).
Petitioner claimed the instruction “directly and adversely affected appellant’s
defense - that he acted in self-defense at his home[.]” (Doc. 14-5 at 55). He
referenced the Stand Your Ground statute, allowing one to meet force with
force, with no duty to retreat, id. at 56 (citing Fla. Stat. § 776.013(3) (2005),
arguing the apparently conflicting instructions given by the court served to
confuse the jury, particularly in light of the prosecutor’s questions and
argument. Id. at 57. Petitioner urged the 1st DCA to find the instructions
confusing, contradictory, and misleading, depriving Petitioner of a fair trial
and due process of law. Id. at 58.
32
The state, in its response brief, succinctly summarized Petitioner’s
contention: “Appellant contends that he is entitled to reversal because the jury
instruction on the justifiable use of deadly force was inconsistent with the
Stand Your Ground law.” Id. at 124. In contrast to Petitioner’s contentions,
the state argued the jury instructions were not confusing. Id. at 124, 127-28.
The state first noted that the Stand Your Ground instruction immediately
followed the justifiable use of force instruction. Id. at 127-28. As such, the
state argued, in this context, the language “the danger could be avoided only
th[r]ough the use of force” referred to the necessity of force instruction, not the
duty to retreat. Id. at 128.
The 1st DCA affirmed per curiam. Id. at 153. Petitioner moved for
rehearing, relying on the decision in McWhorter v. State, 971 So. 2d 154 (Fla.
4th DCA 2007) (finding “necessity to avoid” language misleading to the jury as
the Stand Your Ground law allows a person to stand his ground and meet force
with force, with no duty to avoid or retreat from danger so long as the person
is not engaged in an unlawful activity and is located in a place where he has
the right to be), which concluded the jury instructions negated the appellant’s
sole affirmative defense of self-defense, warranting the reversal of the
conviction and a remand for a new trial. (Doc. 14-5 at 158-72). Comparing
the instructions given in McWhorter with those given in Petitioner’s case,
33
Petitioner argued there was no real difference between the instruction
“defendant cannot justify the use of force likely to cause great bodily harm
unless he used every reasonable means within his power consistent to his own
safety to avoid the danger before resorting to that force” and “the danger facing
the defendant need not have been actual; however could be avoided only
through the use of that force” as they both emphasize the need for the
defendant to avoid the danger. (Doc. 14-5 at 162-63). Petitioner also
referenced the decisions in Pollock v. State, 818 So. 2d 654 (Fla. 3d DCA 2002),
Quaggin v. State, 752 So. 2d 19, 26 (Fla. 5th DCA 2000) (per curiam), and
Harvey v. State, 448 So. 2d 578 (Fla. 5th DCA 1984), in support of his claim of
jury confusion based on the allegedly conflicting instructions conflated by the
prosecutor’s questions and argument. (Doc. 14-5 at 163-64). The 1st DCA
denied rehearing. Id. at 174.
The record shows the trial court charged the jury, in pertinent part:
A person is justified in using deadly force if he
reasonably believes that such force is necessary to
prevent imminent death or great bodily harm to
himself or another or the imminent commission of an
aggravated assault against himself or another.
However the use of deadly force is not justifiable if you
find that Michael Arthur Boyington initially provoked
the use of force against himself unless the force
asserted toward the defendant was so great that he
reasonably believed he was in imminent danger of
death or great bodily harm and had exhausted every
34
reasonable means to escape the danger other than
using deadly force on Arpad Balint and in good faith,
the defendant withdrew from physical contact with
Arpad Balint and clearly indicated to Arpad Balint
that he wanted to withdraw and stop the use of deadly
force, but Arpad Balint continued to resume the use of
force.
In deciding whether the defendant was justified
in the use of deadly force, you must judge him by the
circumstances by which he was surrounded at the time
the force was used. The danger facing the defendant
need not have been actual, however to justify the use
of deadly force, the appearance of danger must have
been so real that a reasonably cautious and prudent
person under the same circumstances would have
believed that the danger could be avoided only through
the use of that force. Based upon appearances, the
defendant must have actually believed that the danger
was real.
(Doc. 14-3 at 234-235) (Standard Jury Instruction 3.6(f)). See generally, 3.6(f)
Justifiable Use of Deadly Force (Doc. 14-1 at 182-84).
The court continued:
If the defendant was not engaged in unlawful
activity and was attacked in a place where he had a
right to be, he had no duty to retreat and had the right
to stand his ground and meet force with force,
including deadly force, if he reasonably believed that
it was necessary to do so to prevent death or great
bodily harm to himself or to prevent the commission of
a forcible felony.
(Doc. 14-3 at 235-36 (Stand Your Ground); (Doc. 14-1 at 184).
35
Upon review, the trial court discussed these instructions at the charge
conference and said they would be given. (Doc. 14-3 at 130-31). The
prosecutor and defense counsel agreed to these instructions. Id. at 131.
In closing argument, the prosecutor argued:
Now the defense is going to tell you or argue to
you that this was self-defense, that Mr. Boyington was
so afraid, so scared for his life that he thought he had
no other choice but to shoot Mr. Balint.
And the judge is going to tell you about
justifiable use of deadly force. And what I want you
to remember about this it that the appearance of
danger must have been so real that a reasonably
cautious and prudent person under the same
circumstances would have believed that the danger
could be avoided only through the use of that force and
based upon appearances, the defendant must have
actually believed that the danger was real.
The State’s going to ask you to use your common
sense here. Is a man holding a .44 magnum rifle
really going to be that afraid of a man holding a bush
axe? I mean let’s look at it here. A bush axe
compared to this .44 rifle. I mean is that reasonable
to believe that Mr. Boyington was so afraid and so
scared of Mr. Balint 104 feet away. Twice the
distance to the corner of this room, so scared that he
thought his only recourse was to shoot him. Is that
reasonable to believe?
The State would submit that it was not. There
was no reason for Mr. Boyington to shoot Mr. Balint
but that he had such disregard for Mr. Balint’s life.
36
Id. at 201-202. In conclusion, the prosecutor argued, “[t]his was not self-
defense. This was not justifiable use of deadly force[;] this was not excusable
use of force.” Id. at 206.
In his closing argument, Mr. Harrison countered the state’s argument by
explaining that in Florida, there is a Stand Your Ground law (“‘a person who
is on their own property, on their own property, doesn’t have to retreat. If
somebody is out there threatening the individual or making a person think
that he’s in danger, the property owner has no obligation to retreat. He does
not have to run into that house”). Id. at 220. Of import, right after closing
arguments, the court was going to instruct the jury on the Stand Your Ground
law.
The prosecutor in his final closing argument went back to his earlier
argument concerning the justifiable use of force, asserting “the appearance of
danger must have been so real that a reasonably cautious and prudent person
under the same circumstances would have believed that the danger could be
avoided only through the use of that force.” Id. at 224. The prosecutor said,
based upon appearances, Petitioner “must have actually believed that the
danger was real.” Id. The prosecutor urged the jury to conclude Petitioner’s
actions were not justifiable, excusable, or taken in self-defense. Id. at 225-26.
37
Respondents, in their Response at 47-48, rely on the holding in State v.
Floyd, 186 So. 3d 1013, 2019-20 (Fla. 2016), which refers to the 2010 law
concerning justifiable use of force:
In Florida, the laws concerning justifiable use of
force are mostly codified in Chapter 776 of the Florida
Statutes.2 Section 776.012, “Use of force in defense of
person,” discusses the use of force, both deadly and
non-deadly, in defense of person:
A person is justified in using force, except deadly force,
against another when and to the extent that the
person reasonably believes that such conduct is
necessary to defend himself or herself or another
against the other's imminent use of unlawful force.
However, a person is justified in the use of deadly force
and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is
necessary to prevent imminent death or great bodily
harm to himself or herself or another or to prevent the
imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to
s. 776.013.
§ 776.012, Fla. Stat. (2010) (emphasis supplied).
Next, section 776.013, “Home protection; use of
deadly force; presumption of fear of death or great
bodily harm,” contains what is commonly known as
the “Stand Your Ground” law:
A person who is not engaged in an unlawful activity
and who is attacked in any other place where he or she
has a right to be has no duty to retreat and has the
right to stand his or her ground and meet force with
38
force, including deadly force if he or she reasonably
believes it is necessary to do so to prevent death or
great bodily harm to himself or herself or another or to
prevent the commission of a forcible felony.
§ 776.013(3), Fla. Stat. (2010).
The Florida Supreme Court found these instructions “correctly guide the jury,”
Floyd, 186 So. 3d at 1022, “correctly stated the law” and were “not confusing,
misleading, or contradictory with regard to the duty to retreat where there is
a question of fact as to who was the initial aggressor.” Id. at 1023.
In Montgomery v. Sec’y, Dep’t of Corr., No. 3:18-cv-227-J-39PDB, 2020
WL 1820508, at *4 (M.D. Fla. Apr. 10, 2020), this Court, when addressing a
similar claim to that of Petitioner’s, noted the state’s response that the trial
court adequately instructed the jury on the stand your ground law while giving
the broader, standard instructions as well, properly instructing the jury that
Petitioner was relieved of the duty to retreat in particular circumstances.
This Court found:
The federal habeas corpus court will be bound by
the Florida court's interpretation of its own laws
unless that interpretation breaches a federal
constitutional mandate. McCoy v. Newsome, 953 F.2d
1252, 1264 (11th Cir. 1992) (per curiam), cert. denied,
504 U.S. 944, 112 S. Ct. 2283, 119 L.Ed.2d 208 (1992).
Since this ground presents an issue that is not
cognizable in this habeas proceeding, it cannot provide
a basis for federal habeas corpus relief. Furthermore,
there is no breach of a federal constitution mandate
39
and Petitioner is not entitled to federal habeas relief
on ground two.
Montgomery, 2020 WL 1820508, at *5–6. See Floyd v. Fla. Dep’t of Corr., No.
3:15cv361-MCR/CAS, 2017 WL 4229054, at *9 (N.D. Fla. July 7, 2017) (not
reported in F. Supp.) (finding jury instructions, including justifiable use of
deadly force and Stand Your Ground, accurately reflect Florida law and did not
shift the jury’s attention from the issues to be decided under the law and
counsel was not ineffective for failure to object to the giving of the instruction
in its entirety or to the organization of the instruction), report and
recommendation adopted by 2017 WL 4226141 (N.D. Fla. Sept. 22, 2017); see
also Abrams v. Jones, No. 17-CIV-80540-MARRA, 2018 WL 8808232, at *13
(S.D. Fla. July 13, 1018) (not reported in F. Supp.) (finding petitioner failed to
satisfy the Strickland standard as the errant comma in the instruction did not
constitute fundamental error as the defendant’s sole defense was the
justifiable use of deadly force and any objection would have been meritless).
Respondents also rely on Verne v. Jones, No. 3:15cv001-LC/CAS, 2017
WL 1190386, at *11 (N.D. Fla. Mar. 10, 2017) (not reported in F. Supp.), report
and recommendation adopted by 2017 WL 1196440 (N.D. Fla. Mar. 29, 2017),
for the proposition that the instructions correctly state the law, including the
right to stand your ground and meet force with force. Response at 48. In
40
Verne, the federal district court recognized the complexity of these
instructions, noting that for Stand Your Ground alone, the jury is required to
make four factual findings: (1) was the defendant not engaged in unlawful
activity; (2) was the defendant attacked; (3) was he somewhere he had a right
to be; and (4) did he reasonably believe it was necessary to use force. Id. In
Verne, like in Petitioner’s case, the trial court instructed the jury on the “initial
aggressor exception,” asking if the defendant initially provoked the use of force
against himself. Id. See (Doc. 14-1 at 183). If the jury finds the defendant
provoked the use of force against himself, there are other questions raised
which the jury must address: “whether he reasonably believed that the
provoked force threatened him with danger of death or great bodily harm; (2)
whether he reasonably believed that the threatened danger was imminent; and
(3) whether he exhausted every reasonable means to escape before using force
to defend himself against the provoked force.” Verne, 2017 WL 1190386, at
*11.
After reviewing the instructions given in Verne, the federal district court
found the instructions did not render the entire trial fundamentally unfair in
violation of the defendant’s due process rights. In reaching this conclusion,
the court explained: “[t]he jury was instructed that under certain
circumstances, Petitioner had no duty to retreat. It was the jury’s role to
41
determine if those circumstances were met. Petitioner has not shown that
any error in jury instruction ‘so infected the entire trial’ that his conviction is
a violation of due process.” Verne, 2017 WL 1190386, at *12.
The constitutional question before this Court is whether the challenged
instructions, viewed in the context of the entire charge to the jury and the trial
record, infected Petitioner’s trial such that his conviction violated due process
principles. Jamerson v. Sec’y for Dep’t of Corr., 410 F.3d 682, 688 (11th Cir.
2005). Notably, as there was no objection to the instructions at trial, the state
court’s review was limited to fundamental error.
This Court must ask whether the jury was precluded from considering
Petitioner’s defense of self-defense due to an erroneous instruction. In this
instance, there was no erroneous instruction. Like in Verne, the jury was
instructed that under given circumstances, Petitioner had no duty to retreat,
and although there is complexity to the instructions, it was the jury’s role to
apply those instructions and determine if those particular circumstances were
met.
To the extent there was any error in the jury instruction, it did not so
infect the entire trial to result in a violation of due process. There was not
error so critical that it rendered the entire proceeding fundamentally unfair.
As such, Petitioner is not entitled to habeas relief.
42
Alternatively, the 1st DCA’s decision denying Petitioner’s claim on direct
appeal is entitled to AEDPA deference. (Doc. 14-5 at 153). The 1st DCA’s
decision affirming the trial court is not contrary to, nor an unreasonable
application of controlling United States Supreme Court precedent. As
Petitioner has not demonstrated that the adjudication of the state court was
contrary to or an unreasonable application of any clearly established federal
law as determined by the United States Supreme court or an unreasonable
determination of the facts, Petitioner is not entitled to habeas relief on this
ground.
Accordingly, it is now
ORDERED AND ADJUDGED:
1. The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED.
2. This action is DISMISSED WITH PREJUDICE.
3. The Clerk shall enter judgment accordingly and close this case.
4. If Petitioner appeals the denial of his Petition for Writ of Habeas
Corpus (Doc. 1), the Court denies a certificate of appealability. 10
10 This Court should issue a certificate of appealability only if a petitioner makes "a
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make
this substantial showing, Petitioner "must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or wrong," Tennard v.
Dretke, 542 U.S. 274, 282 (2004) (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) (quoting Barefoot v. Estelle, 463 U.S. 880,
43
Because this Court has determined that a certificate of appealability is not
warranted, the Clerk shall terminate from the pending motions report any
motion to proceed on appeal as a pauper that may be filed in this case. Such
termination shall serve as a denial of the motion.
DONE AND ORDERED at Jacksonville, Florida, this 24th day of
February, 2021.
4 □ Doo
af J. DAVIS
United States District Judge
sa 2/22
C:
Counsel of Record
893 n.4 (1983)). Upon due consideration, this Court will deny a certificate of appealability.
44