Hubbard v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

JASON J. HUBBARD,

Petitioner,

v. Case No. 3:18-cv-696-MMH-JRK

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Jason Hubbard, an inmate of the Florida penal system,

initiated this action on May 29, 2018,1 by filing a Petition for Writ of Habeas

Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1). In the Petition, Hubbard

challenges a 2005 state court (Duval County, Florida) judgment of conviction

for armed robbery. Hubbard raises two grounds for relief. See Petition at 5-7,

16-18.2 Respondents have submitted a memorandum in opposition to the

Petition. See Answer in Response (Response; Doc. 20) with exhibits (Resp. Ex.).

Hubbard declined to file a brief in reply. This case is ripe for review.

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

2 For purposes of reference, the Court will cite the page number assigned

by the Court’s electronic docketing system.

II. Relevant Procedural History

On December 29, 2004, the State of Florida (State) charged Hubbard by

way of amended Information with armed robbery (count one) and grand theft

auto (count two). Resp. Ex. 1 at 23-24. Following a trial on count one only, a

jury found Hubbard guilty of robbery, with a specific finding that he caried a

deadly weapon during the commission of the robbery. Id. at 51. On October 12,

2005, the circuit court adjudicated Hubbard to be a habitual violent felony

offender (HVFO) and a prison releasee reoffender and sentenced him to a term

of incarceration of thirty-five years in prison. Id. at 77-82.

Hubbard appealed to Florida’s First District Court of Appeal (First

DCA). Id. at 84. In his initial brief, Hubbard argued that the circuit court erred

in failing to conduct an adequate inquiry regarding an alleged discovery

violation. Resp. Ex. 5. The State filed an answer brief, Resp. Ex. 6, and

Hubbard filed a reply brief, Resp. Ex. 7. On December 4, 2006, the First DCA

per curiam affirmed Hubbard’s conviction and sentence without a written

opinion. Resp. Ex. 8. Hubbard then filed a petition for writ of habeas corpus

with the First DCA alleging his appellate counsel was deficient for failing to

argue sufficiency of the evidence on direct appeal. Resp. Ex. 9. On February 4,

2009, the First DCA denied the petition on the merits. Id.

On August 6, 2007, Hubbard filed a pro se motion for postconviction

relief pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850

Motion). Resp. Ex. 10 at 1-33. In the Rule 3.850 Motion, he alleged his counsel

was deficient for failing to: (1) object during sentencing when the circuit court

imposed a sentence based on facts not in evidence; (2) preserve a sufficiency of

the evidence claim for appeal; (3) present exculpatory evidence; (4) present

additional exculpatory evidence; (5) file a motion to suppress a photo lineup;

(6) file a motion to suppress State witness Kimberly Davis; (7) present evidence

in support of his defense; (8) call an expert witness; (9) call a witness; (10)

properly investigate the case; (11) interview and call a witness, (12) preserve

an issue for appeal; and (13) object to the State presenting evidence he ran

from the scene. Id. On September 5, 2007, the circuit court appointed Michael

Bossen, Esq., as his attorney. Resp. Ex. 11 at 1-2. Hubbard later moved to

proceed pro se, id. at 3-4, which the circuit court permitted, id. at 5-6.3

On October 18, 2012, Hubbard filed an amended Rule 3.850 motion, in

which he alleged: (1) fundamental error; (2) counsel failed to adequately argue

a motion for judgment of acquittal; (3) counsel failed to present exculpatory

evidence; (4) counsel failed to object to Kimberly Davis’ in-court identification

of Hubbard; (5) counsel failed to investigate Davis; (6) counsel failed to

preserve an issue for appeal; (7) counsel failed to investigate a videotape; (8)

the cumulative effect of counsel’s errors prejudiced him; (9) counsel failed to

3 The record reflects that Hubbard switched back and forth between

counsel and proceeding pro se during the postconviction proceedings.

object to the verdict form; and (10) counsel failed to depose a witness. Resp. Ex.

12.

Hubbard again amended his motion, filing a Second Amended Rule 3.850

Motion. Resp. Ex. 13. He raised claims of insufficient evidence and

fundamental error, as well as claims alleging his counsel was deficient for

failing to: (1) object to the circuit court sentencing Hubbard for his conviction

for robbery with a weapon; (2) file an adequate motion for judgment of

acquittal; (3) present exculpatory evidence; (4) file a motion to suppress; (5)

object to a witness’ in-court identification of him; (6) properly prepare for trial;

(7) preserve an issue for appeal; (8) object to evidence of his flight; (9) object to

prosecutorial misconduct; (10) conduct an adequate pre-trial investigation; (11)

object to the verdict form; and (12) investigate or depose a witness. Resp. Ex.

13 at 1-62. Hubbard also raised a claim of cumulative error. Id. at 56. On

December 5, 2013, Hubbard amended his claim that counsel was deficient for

failing to object to the circuit court sentencing Hubbard for robbery with a

weapon. Resp. Ex. 14.

On March 21, 2018, Hubbard, with the assistance of counsel, filed an

Unopposed Motion to Vacate, Set Aside, Modify and/or Reduce Sentence

Imposed (Motion to Vacate). Resp. Ex. 15. In the Motion to Vacate, Hubbard

asserted that he substantially assisted the State in obtaining a conviction of

an unrelated defendant and that the State was amendable to granting the

Motion to Vacate. Id. On January 24, 2018, Hubbard voluntarily moved to

withdraw his postconviction motions, which the circuit court granted. Resp.

Ex. 17. The circuit court also granted the Motion to Vacate and resentenced

Hubbard to a term of incarceration of twenty years in prison. Resp. Ex. 16.

Hubbard did not appeal. On April 13, 2018, Hubbard filed a motion to reduce

or modify his new twenty-year term of incarceration, Resp. Ex. 18, which the

circuit court denied on May 10, 2018, Resp. Ex. 18.

III. One-Year Limitations Period

This proceeding was timely filed within the one-year limitations period.

See 28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016), cert. denied, 137 S. Ct. 2245 (2017). “It

follows that if the record refutes the applicant’s factual allegations or otherwise

precludes habeas relief, a district court is not required to hold an evidentiary

hearing.” Schriro, 550 U.S. at 474. The pertinent facts of this case are fully

developed in the record before the Court. Because the Court can “adequately

assess [Hubbard’s] claim[s] without further factual development,” Turner v.

Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not

be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal petition for habeas corpus. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016), cert. denied, 137 S. Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure

that federal habeas relief functions as a guard against extreme malfunctions

in the state criminal justice systems, and not as a means of error correction.’”

Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011) (quotation marks

omitted)). As such, federal habeas review of final state court decisions is

“‘greatly circumscribed’ and ‘highly deferential.’” Id. (quoting Hill v.

Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation marks omitted)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,

Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue a written opinion explaining its rationale in order for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he 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). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision, such

as persuasive alternative grounds that were briefed or argued to the higher

court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars

relitigation of the claim unless the state court’s decision (1) “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.” 28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

“if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court's decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’”[4] Titlow, 571 U.S. at

---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S.

290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert. denied, 137 S.

Ct. 2298 (2017). Also, deferential review under § 2254(d) generally is limited

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

merits. See Cullen v. Pinholster, 563 U.S. 170, 182 (2011) (stating the language

in § 2254(d)(1) “requires an examination of the state-court decision at the time

it was made”).

Thus, “AEDPA erects a formidable barrier to federal habeas relief for

prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,

134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a

state court blundered in a manner so ‘well understood and comprehended in

existing law’ and ‘was so lacking in justification’ that ‘there is no possibility

fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,

562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.

Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were

adjudicated on the merits in the state courts, they must be evaluated under 28

U.S.C. § 2254(d).

4 The Eleventh Circuit has described the interaction between §

2254(d)(2) and § 2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821

F.3d 1270, 1286 n.3 (11th Cir. 2016), cert. denied, 137 S. Ct. 1103 (2017).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a §

2254 habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly

present[]” every issue raised in his federal petition to the state’s highest court,

either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘“opportunity to pass upon and correct” alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

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,[5] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[6] 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.

5 Coleman v. Thompson, 501 U.S. 722 (1991).

6 Wainwright v. Sykes, 433 U.S. 72 (1977).

Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may

be excused under certain circumstances. Notwithstanding that a claim has

been procedurally defaulted, a federal court may still consider the claim if a

state habeas petitioner can show either (1) cause for and actual prejudice from

the default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[7]

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier,

477 U.S. at 494, 106 S. Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice,

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

7 Murray v. Carrier, 477 U.S. 478 (1986).

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that

it is more likely than not that no reasonable juror would have convicted him’

of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per

curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “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.” Id., at 694, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

“so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet the

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, - U.S. at -, 131 S. Ct.

at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The question is not whether a federal court

believes the state court’s determination under the

Strickland standard was incorrect but whether that

determination was unreasonable - a substantially

higher threshold.” Knowles v. Mirzayance, 556 U.S.

111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (2009)

(quotation marks omitted). If there is “any reasonable

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

Richter, - U.S. at -, 131 S. Ct. at 788.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the

deference to counsel’s performance mandated by Strickland, the AEDPA adds

another layer of deference--this one to a state court’s decision--when we are

considering whether to grant federal habeas relief from a state court’s

decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,

“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.

Kentucky, 559 U.S. 356, 371 (2010).

VI. Findings of Fact and Conclusions of Law

Grounds One and Two

In Ground One, Hubbard alleges that his trial counsel provided deficient

performance when he failed to object to Hubbard being sentenced for a crime

not charged or proved at trial, and of which the jury never convicted him.

Petition at 5. According to Hubbard, the State charged him with robbery with

a firearm and the State only presented evidence that he carried a firearm. Id.

However, the verdict form included an interrogatory for not only carrying a

firearm, but for carrying a deadly weapon and a weapon. Id. Hubbard asserts

that the jury used its “pardon power” to find him guilty of “a lesser included

offense” of robbery while carrying a deadly weapon. Id. at 16. Hubbard

maintains that due to an erroneous jury instruction, the circuit court

determined that he “could not be sentenced to robbery with a deadly weapon

as a lesser included offense.” Id. To remedy this alleged error, the circuit court,

with defense counsel and the State’s consent, sentenced Hubbard to robbery

with a weapon. Id. Hubbard argues that his counsel should have objected and

argued that (1) robbery with a weapon was not charged in the information; (2)

the State presented no evidence to support a conviction for robbery with a

weapon; and (3) a firearm is not a weapon under § 790.001(13), Florida

Statutes. Id. at 17-18. As a result, Hubbard alleges he was convicted and

sentenced for a crime he did not commit. Id. Likewise, in Ground Two, Hubbard

asserts that his right to due process under the Fourteenth Amendment was

violated “when he was convicted for a crime wholly unsupported by evidence.”

Id. at 7. For the same reasons he asserts his counsel should have objected, he

contends that he is actually innocent of the crime for which he was convicted.

Id.

Respondents argue both claims are unexhausted. Response at 8-9, 14. As

to Ground One, Respondents contend that this claim is unexhausted because

Hubbard abandoned this claim in state court before either the circuit court or

the appellate court could rule on the merits. Id. at 8-9. Regarding Ground Two,

Respondents assert that Hubbard failed to raise it on direct appeal or in his

petition for writ of habeas corpus with the First DCA, and even if it could be

raised via a motion for postconviction relief, he abandoned it. Id. at 14. In the

Petition, Hubbard recognizes that these claims are unexhausted, but contends

that as to Ground One, his failure to exhaust should be excused pursuant to

Martinez v. Ryan. Id. at 5. Additionally, he argues that a fundamental

miscarriage of justice will occur if the Court does not address the merits of both

grounds for relief. Id. at 5, 7.

The Eleventh Circuit has explained the holding of Martinez as follows:

In Martinez, the U.S. Supreme Court enunciated a

narrow exception to the general rule that the lack of

an attorney or attorney error in state post-conviction

proceedings does not establish cause to excuse the

procedural default of a substantive claim. 566 U.S. at

8, 13-14, 132 S.Ct. at 1315, 1318. The Supreme Court,

however, set strict parameters on the application of

this exception. It applies only where (1) state law

requires a prisoner to raise ineffective-trial-counsel

claims during an initial collateral proceeding and

precludes those claims during direct appeal; (2) the

prisoner failed to properly raise ineffective-trial-

counsel claims during the initial collateral proceeding;

(3) the prisoner either did not have counsel or his

counsel was ineffective during those initial state

collateral proceedings; and (4) failing to excuse the

prisoner's procedural default would result in the loss

of a “substantial” ineffective-trial-counsel claim. Id. at

14, 132 S.Ct. at 1318; see also Arthur v. Thomas, 739

F.3d 611, 629 (11th Cir. 2014) (setting forth the

Martinez requirements).

Lambrix v. Sec’y, Fla. Dep’t of Corr., 851 F.3d 1158, 1164 (11th Cir. 2017). A

claim is substantial if it “has some merit.” Martinez, 566 U.S. at 14. For

purposes of determining whether postconviction counsel was ineffective, a

petitioner “must show more than the mere fact they failed to raise potentially

meritorious claims; he must show that no competent counsel, in the exercise of

reasonable professional judgment, would have omitted those claims.” Hittson

v. GDCP Warden, 759 F.3d 1210, 1263 (11th Cir. 2014) (emphasis in original).

Based on the record available to the Court, Hubbard cannot establish his

postconviction counsel was deficient because Hubbard voluntarily agreed,

under oath, to withdraw his previously filed motions for postconviction relief.

Resp. Ex. 17. In exchange for withdrawing the motions, Hubbard’s original

sentence was vacated, and he was given a twenty-year sentence without being

adjudicated as an HVFO or prison releasee reoffender. Resp. Exs. 16; 17.

Hubbard knowingly raised the instant claims in his postconviction motions but

freely determined to abandon them in exchange for a new sentence.

Accordingly, Hubbard cannot establish that his postconviction counsel was

deficient for failing to raise this claim which counsel did in fact raise but

Hubbard voluntarily decided to abandon it. As Hubbard cannot establish

ineffective assistance of postconviction counsel, he cannot rely on Martinez to

excuse his failure to exhaust the claim in Ground One.

The Court next turns to Hubbard’s claim that he is actually innocent.

“‘To be credible,’ a claim of actual innocence must be based on reliable evidence

not presented at trial.” Calderon, 523 U.S. at 559 (quoting Schlup, 513 U.S. at

324). Hubbard has not brought forth any new evidence which was not

presented at trial. To the contrary, he bases his arguments on evidence that

was presented at trial. As such, he has failed to present a proper claim of actual

innocence. See id.; see also Moore v. Frazier, 605 F. App’x 863, 868 (11th Cir.

2015) (finding petitioner’s insufficiency of the evidence argument did not

constitute actual innocence for purposes of excusing his untimely federal

habeas petition). Accordingly, as Hubbard has failed to establish his actual

innocence, he cannot rely on this principle to excuse his failure to exhaust the

claims in Grounds One and Two.

The Court notes that simple robbery is a second-degree felony

punishable by up to fifteen years in prison. §§ 812.13(2)(c); 775.082(3)(d), Fla.

Stats. However, had the circuit court done as Hubbard contends in his motion

and sentenced him to simple battery, Hubbard still faced enhanced sentencing

pursuant to the HVFO statute. Under Florida’s HVFO statute, the second-

degree felony would have been punishable for a term of years not exceeding

thirty years, with a ten-year minimum mandatory. § 775.084(4)(b), Fla. Stat.

Accordingly, even if properly exhausted and assuming his claim had merit,

Hubbard would face the possibility of a stiffer sentence than the twenty-year

sentence he is currently serving. Hubbard had the opportunity to litigate this

issue in state court, but voluntarily declined to do so in return for a lighter

sentence, a sentence that could possibly be increased were he to succeed here.

Based on this record, the relief sought in the Petition is due to be denied as

Hubbard’s claims are unexhausted.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Hubbard seeks issuance of a certificate of appealability, the

undersigned opines that a certificate of appealability is not warranted. The

Court should issue a certificate of appealability only if the petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this substantial showing, Hubbard “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, 893 n.4 (1983)).

Where a district court has rejected a petitioner’s constitutional claims on

the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.

See Slack, 529 U.S. at 484. However, when the district court has rejected a

claim on procedural grounds, the petitioner must show that “jurists of reason

would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED

WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Petition

and dismissing this case with prejudice.

3. If Hubbard appeals the denial of the Petition, the Court denies a

certificate of appealability. Because the 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.

4. The Clerk of the Court is directed to close this case and terminate

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 25th day of May,

2021.

United States District Judge

Jax-8

C: Jason Hubbard #805285

Counsel of record

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