# Thornton v. Secretary, Department of Corrections (Clay County)

> District Court, M.D. Florida · May 24, 2021

URL: https://www.frixlaw.com/law-library/cases/10107619

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 24, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10107619

## How later opinions describe it (automated extraction)

- holding a motion for judgment of acquittal should not be granted unless “there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law.”
- stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DARRELL LAMONT THORNTON,

Petitioner,

v. Case No. 3:18-cv-762-MMH-PDB

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,

Respondents.
________________________________

ORDER
I. Status
Petitioner Darrell Thornton, an inmate of the Florida penal system,
initiated this action on June 8, 2018,1 by filing a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1), with a memorandum of law
(Memorandum; Doc. 2). In the Petition, Thornton challenges a 2010 state court
(Clay County, Florida) judgment of conviction for attempted second-degree
murder, battery, robbery with a deadly weapon, carjacking, and second-degree
arson. Thornton raises eight grounds for relief. See Memorandum at 2-21.2
Respondents have submitted a memorandum in opposition to the Petition. See

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.
Answer to Petition for Writ of Habeas Corpus (Response; Doc. 19) with exhibits
(Resp. Ex.). Thornton declined to file a brief in reply. See Doc. 23. This case is

ripe for review.
II. Relevant Procedural History
On April 6, 2009, the State of Florida (State) charged Thornton by way
of Information with attempted first-degree murder with a weapon (count one),

kidnapping with a weapon (count two), armed robbery (count three), carjacking
(count four), and second-degree arson (count five). Resp. Ex. A at 7-8. Following
a trial,3 a jury convicted Thornton of attempted second-degree murder, a lesser
included offense of count one; battery, a lesser included offense of count two;

robbery with a deadly weapon; carjacking; and second-degree arson. Id. at 33-
35. The circuit court sentenced Thornton to a term of incarceration of fifteen
years in prison as to counts one and five, thirty years in prison as to counts
three and four, and one-year in jail as to count two. Id. at 180-87. The circuit

court ordered each count to run concurrently with the others. Id. at 187.
Thornton appealed his convictions and sentences to Florida’s First
District Court of Appeal (First DCA). Id. at 192. With the assistance of counsel,
Thornton argued in his initial brief that: (1) there was insufficient evidence to

establish that he used a deadly weapon, (2) the circuit court erred in failing to

3 Thornton was tried alongside his co-defendant in front of two separate juries. Resp.
Ex. B.
instruct the jury on the offense of grand theft of a motor vehicle, and (3) his
convictions for armed robbery and carjacking violated the Double Jeopardy

Clause. Resp. Ex. C. The State filed an answer brief. Resp. Ex. D. The First
DCA stayed the appeal pending the resolution of an issue before the Florida
Supreme Court. Resp. Ex. G. Following the resolution of that issue, the First
DCA lifted the stay and directed the State to show cause why Thornton’s

conviction for attempted second-degree murder should be not be reversed.
Resp. Ex. H. The State conceded Thornton’s conviction on that count should be
reversed and the case remanded. Resp. Ex. I. On September 10, 2014, the First
DCA reversed the conviction and sentence for attempted second-degree murder

and remanded the case for a new trial on that count. Resp. Ex. J. In all other
aspects, the First DCA affirmed Thornton’s convictions and sentences without
further explanation. Id. The Mandate issued on September 29, 2014. Resp. Ex.
K. On remand, the State entered a nolle prosequi as to the attempted second-

degree murder charge. Resp. Ex. L.
On June 11, 2015, Thornton filed a pro se motion for postconviction relief
pursuant to Florida Rule of Criminal Procedure 3.850, Resp. Ex. N, which he
later voluntarily dismissed on July 23, 2015, Resp. Exs. P; Q. On November 5,

2015, Thornton again filed a pro se motion for postconviction relief (Rule 3.850
Motion). Resp. Ex. R at 4-24. In the Rule 3.850 Motion, Thornton alleged that
his trial counsel was ineffective for failing to: (1) adequately argue a motion
for judgment of acquittal; (2) request a jury instruction on grand theft; (3)
adequately argue a motion for judgment of acquittal; (4) object to the

prosecutor’s closing arguments; and (5) object to an increased penalty without
the proper jury finding. Id. The circuit court denied the Rule 3.850 Motion. Id.
at 57-70. Thornton appealed; however, the First DCA initially dismissed the
appeal as untimely. Resp. Exs. W; X; Z. Thornton filed a petition for belated

appeal, Resp. Ex. BB, which the First DCA ultimately granted, Resp. Ex. EE.
On May 9, 2018, the First DCA per curiam affirmed the denial of relief on the
Rule 3.850 Motion, Resp. Ex. JJ, and on June 6, 2018, it issued the mandate,
Resp. Ex KK.

On August 1, 2016, Thornton filed a pro se motion to correct illegal
sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) (Rule
3.800(a) Motion). Resp. Ex. LL at 5-8. The circuit court dismissed the Rule
3.800(a) Motion without prejudice. Id. at 11-12. Thornton appealed, and on

February 28, 2017, the First DCA per curiam affirmed the dismissal without a
written opinion. Resp. Ex. NN. The First DCA issued the Mandate on March
28, 2017. Resp. Ex. OO.
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 [Thornton’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,

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).
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).
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–

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

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

6 Wainwright v. Sykes, 433 U.S. 72 (1977).
7 Murray v. Carrier, 477 U.S. 478 (1986).
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
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
A. Ground One
As Ground One, Thornton alleges his counsel was ineffective for failing
to adequately argue a motion for judgment of acquittal. Memorandum at 2-4.
Specifically, he contends that his counsel should have argued that there was
insufficient evidence to qualify the BB gun or object used to stab the victim as

a deadly weapon. Id. According to Thornton, the victim, James Waters,
testified at trial that he got hit in the back of the head and when he turned to
see what hit him, he saw Thornton standing over him with what he thought
was a gun, but what was later determined to be a BB gun. Id. at 2-3. Waters
also testified that Thornton stabbed him several times, but he was unable to

identify the weapon Thornton used to stab him and police never recovered it.
Id. As the only evidence of the use of these weapons came from Waters and
Waters was unable to specifically identify which weapon caused his injuries,
Thornton contends that his counsel should have argued that there was

insufficient evidence to establish his use of a deadly weapon during the
commission of the robbery. Id. at 3-4.
Thornton raised a similar claim in his Rule 3.850 Motion. Resp. Ex. R at
6-8. The circuit court denied relief, explaining:

“In moving for judgment of acquittal, a defendant
admits (1) facts stated in evidence and (2) conclusions
favorable to the adverse party.” Cahours v. State, 147
So. 3d 574, 577 (Fla. 1st DCA 2014) (citing Lynch v.
State, 293 So. 2d 44, 45 (Fla. 1974)). Thus, a “judgment
of acquittal should only be granted when the jury
cannot reasonably view the evidence in any manner
favorable to the opposing party.” Criner v. State, 943
So. 2d 224, 225 (Fla. 1st DCA 2006) (citing Lynch, 293
So. 2d at 45).

To establish a prima facie case for Robbery With
a Deadly Weapon, the State must introduce evidence
that (1) Defendant, or a person he was principal with,
took money or other property from Waters or Waters’
custody, (2) force, violence, assault, or putting in fear
was used in the course of the taking, (3) the property
taken was of some value, (4) the taking was with the
intent to permanently or temporarily deprive Waters
of his right to the property or any benefit from it, and
(5) Defendant, or a person he was principle with, used
a deadly weapon in the course of committing the
robbery.” See Fla. Stat. § 812.13 (2009), Fla. Std. Jury
Instr. (Crim.) 15.1 (2009). The statute does not define
“deadly weapon.” However, the standard jury
instructions, which was given in this case, defines
“deadly weapon” as a weapon “used or threatened to
be used in a way likely to produce death or great bodily
harm.” Now, whether a weapon is a “deadly weapon”
is a factual question to be answered by the jury.” See
Dale v. State, 703 So. 2d 1045, 1047 (Fla. 1997).

Here, Waters was struck across the back of his
head with what Waters believed was a gun. Waters fell
to the floor, was “extreme [sic] dizzy,” and experienced
ringing in his ears. Defendant threatened Waters by
pointing the BB gun at Waters. The BB gun was
introduced as evidence for the jury’s consideration.

Further, Defendant and Co-defendant stabbed
Waters numerous times in his ear, head, throat, and
shoulder with an unidentified object. From those
injuries Waters received stitches in his ear, behind his
ear, on his lower jaw, and on his back. Additionally, at
the time of the trial, Waters testified that he still had
lingering injuries from the attacks, including scars,
pain in his ears, and numbing pain in his shoulders.

The Court finds there was competent,
substantial evidence to submit to the jury for its
consideration on whether the BB gun, unidentified
object, or both was a deadly weapon. Therefore, the
Court finds that Defendant fails to demonstrate that
counsel’s performance was deficient or that there was
a reasonable probability that the outcome of the
proceedings would have been different presuming
counsel’s performance was deficient. Therefore,
Defendant is not entitled to relief on Ground One.
Id. at 61-63 (record citations and footnote omitted). The First DCA per curiam
affirmed the denial of relief without issuing a written opinion. Resp. Exs. JJ;

KK.
To the extent that the First DCA decided the claim on the merits,8 the
Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Thus, Thornton is not entitled to
relief on the basis of this claim.
Nevertheless, even if the First DCA’s adjudication of the claim is not
entitled to deference, the claim in Ground One is without merit. In reviewing

a motion for judgment of acquittal, trial courts must determine “whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see

8 Throughout this order, in looking through the appellate court’s per curiam
affirmance to the circuit court’s “relevant rationale,” the Court presumes that the appellate
court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1194.
also Gudinas v. State, 693 So. 2d 953, 962 (Fla. 1997) (quoting Taylor v. State,
583 So. 2d 323, 328 (Fla. 1991) (holding a motion for judgment of acquittal

should not be granted unless “there is no view of the evidence which the jury
might take favorable to the opposite party that can be sustained under the
law.”). Pursuant to section 812.13(2)(a), Florida Statutes, if during the
commission of a robbery the offender “carried a firearm or other deadly

weapon,” then the robbery is a first-degree felony punishable by life. The
statute does not define deadly weapon, but the Florida Supreme Court has
stated that “‘[a] ‘deadly weapon’ has generally been defined to be one likely to
produce death or great bodily injury,’” and “‘[w]hether or not the weapon

involved is to be classed as ‘deadly’ is a factual question to be resolved by the
jury under appropriate instructions.’” Dale v. State, 703 So. 2d 1045, 1047 (Fla.
1997) (quoting Goswick v. State, 143 So. 2d 817, 820 (Fla. 1962)).
Regarding Thornton’s use of the BB gun, such a weapon can be a deadly

weapon under Florida law, depending on the evidence presented at trial. Id.
Moreover, “when used as a bludgeon, a BB gun may qualify as a ‘deadly
weapon.’” K.C. v. State, 49 So. 3d 841, 843 (Fla. 4th DCA 2010) (citations
omitted). Here, although Waters did not see what Thornton struck him with,

he did testify that Thornton was only carrying the BB gun, which Waters
thought was a real gun at the time, and that the pain he felt did not feel like a
punch from a fist. Resp. Ex. B at 217-19, 294, 300-01. Additionally, Thornton
stated that the hit knocked him to the ground, made him dizzy, and affected
his memory. Id. On this record, there was competent, substantial evidence

supporting an inference that the BB gun was used as a bludgeon. See K.C., 49
So. 3d at 843. As such, this evidence, when taken in a light most favorable to
the State, created a reasonable inference that the BB gun could cause great
bodily injury.

Likewise, even though Waters could not identify the object used to stab
him, the evidence showed that Waters was stabbed six to seven times, which
caused profuse bleeding, required stitches, and still gave him pain at the time
of trial. Resp. Ex. B at 173, 183, 232-33, 244, 441. Notably, resolution of this

issue does not turn on whether or not the State specifically identified the
weapon used but, instead, turns on whether the object used could produce
death or great bodily injury. Here, there was sufficient evidence to allow a
reasonable juror to conclude that the object Thornton used to stab Waters was

capable of producing death or great bodily injury. See Price v. State, 932 So. 2d
1244, 1245 (Fla. 3rd DCA 2006) (affirming conviction for aggravated battery
with a deadly weapon and holding “that whether the instrument used to stab
the victim was a knife, a screwdriver, or an ice pick is inconsequential where

an eyewitness testified that Price used a sharp metallic object to stab the
victim repeatedly in the victim's hand and stomach causing the victim to
bleed.”); Smith v. State, 645 So. 2d 124, 126 (Fla. 1st DCA 1994) (“The state
may prove that a defendant carried, displayed, used, threatened, or attempted
to use a weapon during the commission of a felony by means of circumstantial

evidence.”). In light of the above, there is no reasonable probability the outcome
of the trial would have been different had counsel raised this argument in
support of the motion for judgment of acquittal. Accordingly, relief on the claim
in Ground One is due to be denied.

B. Ground Two
Next, Thornton argues that his counsel’s failure to request an instruction
for the necessary lesser-included offense of grand theft constituted deficient
performance. Memorandum at 4-6. He maintains that grand theft is a

“category one necessarily lesser-included offense” of carjacking and the circuit
court was obligated to read the instruction had counsel requested it. Id. at 5.
According to Thornton, counsel’s failure to request this instruction deprived
the jury of the chance to acquit him of the offense of carjacking. Id. at 6.

Thornton exhausted this claim in state court, raising it in his Rule 3.850
Motion. Resp. Ex. R at 9-11. In denying relief on this claim, the circuit court
stated:
“[A]s a matter of law, the possibility of a jury pardon
cannot form the basis for finding of prejudice under
Strickland.” Sanders v. State, 946 So. 2d 953, 960 (Fla.
2006). Therefore, “[a] claim alleging ineffective
assistance of counsel for failure to request an
instruction on a lesser-included offense may be
summarily denied.” Id.
Accordingly, the Court finds that Defendant
fails to demonstrate that there was a reasonable
probability that the outcome of the proceedings would
have been different presuming counsel’s performance
was deficient. Defendant is not entitled to relief on
Ground Two.

Id. at 63. The First DCA per curiam affirmed the denial of this claim without
a written opinion. Resp. Exs. JJ; KK.
To the extent that the First DCA decided the claim on the merits, the
Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Thus, Thornton is not entitled to
relief on the basis of this claim.
Nevertheless, even if the First DCA’s adjudication of the claim is not
entitled to deference, the claim in Ground Two is meritless. Underlying
Thornton’s claim of prejudice is the idea that the jury would have found him

guilty of grand theft had the instruction been included. However, the jury
specifically found that the state proved each element of carjacking beyond a
reasonable doubt; therefore, Thornton’s prejudice allegation relies solely on the
conceptual possibility of a jury pardon. The possibility of a jury pardon,
however, cannot establish prejudice under Strickland. See Strickland, 466 U.S.

at 694-95 (noting in determining whether prejudice exists, a court should
presume the “jury acted according to the law,” and “[a]n assessment of the
likelihood of a result more favorable to the defendant must exclude the
possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like. A

defendant has no entitlement to the luck of a lawless decisionmaker, even if a
lawless decision cannot be reviewed.”); Sanders, 946 So. 2d at 959-60 (holding
that although the failure to instruct the jury on a necessarily lesser included
offense can be per se reversible error on direct appeal, the mere possibility that

the jury might have exercised its “pardon power” “cannot form the basis for a
finding of prejudice” to support an ineffective assistance of counsel claim in a
postconviction motion). As Thornton cannot demonstrate prejudice, his claim
of ineffective assistance of counsel fails. See Ward, 592 F.3d at 1163.

Accordingly, relief on the claim raised in Ground Two is due to be denied.
C. Ground Three
Thornton contends that his counsel was deficient for failing to provide
“substantial arguments challenging the sufficiency of the evidence on the

second degree arson” charge in his motion for judgment of acquittal.
Memorandum at 6-9. Thornton maintains that the State failed to present “any
direct evidence that proved beyond a reasonable doubt petitioner willfully and
unlawfully damaged Waters’ vehicle by fire.” Id. at 8. Specifically, Thornton
asserts that “[n]o one testified Petitioner’s clothing or person had come in

contact with gasoline” or other “ignitable materials” at the time of his arrest
and “there were no eyewitnesses to testify observing petitioner commit arson.”
Id.
The record reflects Thornton raised a substantially similar claim in his

Rule 3.850 Motion. Resp. Ex. R at 12-14. The circuit court denied relief, finding:
Defendant argues counsel was ineffective for failing to
properly move for judgment of acquittal as to the
Second Degree Arson charge. To establish a prima
facie case for Second Degree Arson, the State must
introduce evidence that (1) Defendant, or a person he
was a principal with, caused to be damaged or
damaged a vehicle owned by Waters by fire, (2) the
damage was done willfully and unlawfully, (3) and the
vehicle was a structure. See Fla. Stat. § 806.01 (2009),
Fla. Std. Jury Instr. (Crim.) 12.2 (2009).

Here, Robert Jenkins (“Jenkins”), a detective for
the State Fire Marshal’s Office, testified that a burned
1988 Mitsubishi 3000 GT belonging to Waters was
discovered on March 19, 2009. He further testified that
it was believed that the origin of the fire was the rear
seat of the vehicle. Testimony was also introduced that
samples from the rear seat indicated that gasoline was
used to make the fire burn faster.

Additionally, Waters testified about the
discussion between Defendant and Co-defendant
about burning the vehicle and possibly Waters in order
to destroy the evidence. Further, Waters testified that
Defendant and Co-defendant discussed where they
should get gas. The State introduced as evidence a
receipt for the purchase of gas. Finally, Defendant and
Co-Defendant were apprehended walking down the
street about one quarter of a mile from the burning
car.

The Court finds there was competent,
substantial evidence of second degree arson to submit
to the jury for its consideration. Therefore, the Court
finds that Defendant fails to demonstrate that
counsel’s performance was deficient or that there was
a reasonable probability that the outcome of the
proceeding would have been different presuming
counsel’s performance was deficient. Defendant is not
entitled to relief on Ground Three.

Id. at 63-64 (record citations omitted). The First DCA per curiam affirmed the
denial of relief without a written opinion. Resp. Exs. JJ; KK.
To the extent that the First DCA decided the claim on the merits, the
Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Thus, Thornton is not entitled to
relief on the basis of this claim.
Even if the First DCA’s adjudication of the claim is not entitled to
deference, the claim in Ground Three is without merit. “A criminal defendant
is entitled to a judgment of acquittal if there is no direct evidence of guilt and
if the circumstantial evidence does not exclude every reasonable hypothesis of
innocence.” State v. Sims, 110 So. 3d 113, 115 (Fla. 1st DCA 2013) (citation

omitted). While there may not have been direct evidence showing Thornton
started the fire, the circumstantial evidence presented excludes any reasonable
hypothesis of innocence.
As the postconviction court noted, Waters testified that, while Thornton

drove Waters’ car with Waters tied up in the backseat, he overheard Thornton
and his co-defendant, Lisa Mullis, discuss burning the vehicle, and potentially
Waters in it, in order to destroy the evidence. Resp. Ex. B at 235-36. Waters
further testified that the vehicle came to a stop and Thornton exited

specifically looking for gasoline to light the vehicle on fire. Id. at 240. Waters
escaped prior to Thornton returning. Id. at 241-43. A detective with Florida’s
Fire Marshal’s Office testified that Waters’ vehicle had been burned in the
interior, specifically in the area where Waters was detained, the rear seat. Id.

at 370-71. Samples from the rear seat were analyzed and found to contain
gasoline. Id. at 372-73, 380. Law enforcement detained Thornton and Mullis
on the same day of the incident walking away from the scene, which was only
a quarter of a mile away. Id. at 395-400. Notably, the State also introduced

evidence that Thornton bought one-dollar of gas the night of the incident. Id.
at 384-86.
Based on this record, there was sufficient circumstantial evidence to
send the arson charge to the jury. Any motion for judgment of acquittal raising

the arguments Thornton advances here would have been meritless. Counsel
cannot be deficient for failing to raise a meritless argument. See Diaz v. Sec’y
for the Dep’t of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005) (holding counsel
cannot be ineffective for failing to raise a meritless argument); Bolender v.

Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994) (noting that “it is axiomatic
that the failure to raise nonmeritorious issues does not constitute ineffective
assistance.”). Likewise, as Thornton’s arguments lack merit, there is no
reasonable probability the outcome of the trial would have been different. As

Thornton has failed to establish deficient performance or prejudice, relief on
the claim in Ground Three is due to be denied.
D. Ground Four
In Ground Four, Thornton asserts that his counsel provided deficient

performance when she failed to object to the prosecutor’s improper and
prejudicial comments during closing arguments. Memorandum at 9-12.
According to Thornton, the State bolstered the testimony of Waters, id. at 9-
10, misrepresented the testimony of Detective Adam Graff concerning evidence

he gathered during his canvas of the scene, id. at 10-11, and impermissibly
attacked the defense’s theory and defense counsel, id. at 11-12.
Thornton raised a similar claim in state court. Resp. Ex. R at 15-17. In
denying relief on this claim, the circuit court explained:

Defendant argues counsel was ineffective for failing to
object to improper and prejudicial comments made by
the prosecutor during his closing arguments.

1. Bolstering the Credibility of a Witness

Defendant alleges the prosecutor improperly
bolstered the credibility of Waters. Specifically,
Defendant refers to the following statements:

The other thing I think is significant about
that is no matter how embarrassing or
humiliating that must have been to have
to admit that, what do you know about
James Waters? He told the very first
responding deputy that that’s what the
relationship was. He disclosed it right off
the bat. Regardless of what anyone thinks
about it, it’s one of the first things he said
to make sure they knew. I got to tell you
this is how I know her. We have a sexual
relationship, an intimate relationship
where I pay her money for sex. Told them
right out of the gates, right off the bat, no
matter how humiliating that must have
been.

[. . . .]

They underestimated him. They
underestimated the character of James
Waters because right out of the gate when
he’s able to escape and get away he’s clean
upfront. This is what it was. This is how I
know it. I’m not going to lie about it. I’m
going to tell you what it was.
[. . . .]

They say we don’t have to tell you any
reason why he would make all this up.
Well, if someone if [sic] going to lie it’s
common sense that someone is going to lie
for a reason. What in the world kind of
reason could be behind James Waters
wanting to subject himself to this? What
in the world? Talk about something not
making sense.

. . . .

Here, when the statements are viewed in their
context, the prosecutor did not vouch for the credibility
of the witness. The prosecutor did not place the
prestige of the government behind the witness or state
information that was not presented to the jury
supported [sic] the witness’s testimony. The
prosecutor was simply encouraging the jurors to
evaluate Waters’ credibility based on the evidence
presented during trial.

Therefore, the Court finds that Defendant fails
to demonstrate that counsel’s performance was
deficient or that the outcome of the proceeding would
have been different had counsel objected to the
prosecutor’s statements. Defendant is not entitled to
relief on this issue.

2. Misrepresentation of Facts

Defendant alleges the prosecutor improperly
misrepresented certain facts during his closing
arguments. Specifically, Defendant refers to the
following statements:

He’s walking down by the road less than a
quarter mile from there keeping [sic] their
groceries, groceries bought with stolen
money with blood on it. . .

[. . . .]

When Detective Graff was doing the
canvas Ms. Bedell elicited from him what
it was that he found out and there was
someone that said someone had come up
to their house and that person had blood
on them and I sent them away, black male.
That’s not James Waters. That’s the guy
looking for a gas can. That’s the guy who
got out of the car in the Forman Circle
area and is walking up to a house. That’s
the testimony. That’s the evidence.
Darrell Thornton got out of the car and
walked up to the house and that black
male had blood on him and that person
told Graff I sent him away. I told him to
leave. It was him. It was him looking for a
gas can.

. . . .

Defendant Graff testified that, while canvassing
the neighborhood where Waters escaped, he spoke
with an individual at a home and the individual stated
that a black male, who appeared to be bleeding, came
to his door. The individual stated however that he told
the black male to leave.

Waters had already testified that after
Defendant and Co-defendant talked about burning the
vehicle and getting gas, Defendant “comes up with an
idea” and tells Co-defendant to pull into a driveway.
Co-defendant pulled the vehicle into the driveway and
Defendant left the vehicle. Defendant was gone for
some time. Further, Waters testified that when he
escaped he hid amongst the shrubbery but he did not
testify that he made any contact with any person at a
home.

The prosecutor’s statements were a combination
of evidence presented at trial and reasonable logical
inferences. Therefore, the Court finds that Defendant
has failed to demonstrate that counsel’s performance
was deficient. Moreover, based on all the evidence
presented at trial, Defendant fails to demonstrate that
the outcome of the proceedings would have been
different had counsel objected to the prosecutor’s
statements. Defendant is not entitled to relief on this
issue.

3. Attack Against Defendant’s Counsel and
Defense Theory

Defendant alleges the prosecutor improperly
attacked defense counsel and the defense’s theory.
Specifically, Defendant refers to the following
statements:

They leave out details but the reality is
this: They stand up here at this moment
and they create a crazy, outlandish
scenario of an attack somewhere else
while someone is defending themselves of
which there is zero, absolutely zero
evidence of. And what you have to do,
what they’re asking you to do is speculate
about that, imagine this other possibility,
force a doubt into your mind asking you to
speculate about those things . . .

. . . .

Arguably, the prosecutor’s statement that the
defense’s theory was “crazy” and “outlandish” was
improper. However, the Court finds that the
prosecutor’s statement was harmless giving [sic] the
evidence presented in this case: in particular,
Defendant’s confession to committing certain acts.

Therefore, the Court finds that Defendant has
failed to demonstrate that he failed to receive a fair
trial or that the outcome of the proceedings would have
been different had counsel objected to the prosecutor’s
statements. Defendant is not entitled to relief on this
issue.

4. Inflammatory and Other Improper
Statements

Defendant alleges the following prosecutor’s
statements are inflammatory:

He didn’t think it was yet over, so from
around 1:00 in the morning till around
2:55 a.m. when Deputy Taylor rolls up
that terror, that horror, whatever - -
however you describe what he went
through, that has to be followed by a day
of reckoning. It must be followed by a day
of reckoning. Hold Darrell Thornton
accountable. Hold him responsible for
what he did.

Given the wide latitude prosecutors are given to
argue to the jury during closing argument, the Court
does not find that the prosecutor’s statements in this
case were inflammatory.

Defendant also alleges the prosecutor’s
statement, “I want to caution you about one thing: Do
not necessarily confuse a trial with necessarily
anything to do with innocence” was improper.
Defendant argues the statement was improper
because it “basically told the jury that [he] was guilty
and that the trial itself was a mere formality.
The Court disagrees. Viewed in context, the
prosecutor’s statement did not tell the jury that
Defendant was guilty and the trial was a mere
formality. In fact the next statement made by the
prosecutor was that “[a] trial is a constitutional right,
a right that every person has, a right as we talked
about in jury selection that if the state’s going to say
you’re guilty of A, B, C, D and E then the state has to
present evidence to back that up.” The State properly
placed the burden on itself that, through this trial, it
had to prove that Defendant was guilty.

Therefore, the Court finds that Defendant has
failed to demonstrate that counsel’s performance was
deficient or that the outcome of the proceedings would
have been different had counsel objected to the
prosecutor’s statements. Defendant is not entitled to
relief on this issue.

Id. at 64-69 (record citations omitted). The First DCA affirmed the circuit
court’s denial of relief without issuing a written opinion. Resp. Exs. JJ; KK.
To the extent that the First DCA decided the claim on the merits, the
Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Thus, Thornton is not entitled to
relief on the basis of this claim.
Nevertheless, even if the First DCA’s adjudication of the claim is not
entitled to deference, the claim in Ground Four is meritless. For purposes of

federal habeas review, “a prosecutor's improper comments will be held to
violate the Constitution only if they ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’” Parker v. Matthews,
567 U.S. 37, 45 (2012) (quoting Darden v. Wainwright, 477 U.S. 168, 181

(1986)). The alleged improper comments did not deny Thornton a fair trial. The
Court agrees with the state court’s analysis that these comments are not
improper as the they are reasonable inferences of the evidence presented at
trial. Moreover, a review of the trial transcripts shows that the State produced

substantial evidence of Thornton’s guilt. So much so that even if these
comments were considered improper, there is no reasonable probability the
outcome of the trial would have been different had they not been spoken.
Waters testified that he paid Mullis for sex over a two-year span. Resp.

Ex. B at 206-18. On the night of the incident, he entered into Mullis’ home with
the understanding that he would pay her for sex. Id. Upon entering her home,
Thornton hit Waters on the back of the head with what Waters thought was a
gun, causing Waters to fall to the ground. Id. at 217-18. Thornton and Mullis

covered their hands with latex gloves and taped Waters’ hands with duct tape.
Id. at 219-25. Thornton took Waters’ wallet and car keys by gunpoint and then
Thornton and Mullis commandeered Waters’ vehicle, forced Waters into the
back seat, and drove to a bank to use Waters’ ATM card to withdraw $300 in
cash. Id. at 219-31. Mullis and Thornton, still in control of Waters’ vehicle,

drove to a convenience store, at which Mullis bought some items. Id. at 232.
While Mullis was inside the store, Thornton stabbed Waters six to seven times
with an unidentified object, causing Waters to bleed profusely. Id. at 232-33.
Once Mullis returned to the vehicle, she and Thornton discussed burning the

vehicle and possibly Thornton in it in order to cover up their crimes, at which
point Mullis turned around and stabbed Waters with the same weapon
Thornton used. Id. at 235-38. Waters began to “play dead.” Id. at 238-40. With
Thornton unsure if Waters was dead, he directed Mullis to stop the vehicle so

he could obtain some gasoline. Id. While Thornton was away, Waters was able
to free his hands of the tape and escape the vehicle, after which he initially hid
in the woods until he saw them drive away in his vehicle. Id. at 241-43. Waters
then ran to the nearest open business, a Hardee’s restaurant. Id. Police arrived

and took Waters to a hospital. Id. at 244.
During the investigation, Waters identified Mullis out of a photo lineup
and did the same with Thornton, although Waters wrote on the picture that he
was only seventy percent sure Thornton was the assailant. Id. at 246-51, 357-

59. Police found Waters’ vehicle, partially burning from the inside out, which
was later determined to have been started with gasoline in the rear seat of the
vehicle. Id. at 369-73, 380. A canvas of the area surrounding the vehicle
uncovered apparent blood droplets around the scene and latex gloves that
appeared to have been rolled off the hand with what appeared to be a blood-

like substance on them. Id. at 420-21, 446-47. The gloves were later analyzed,
and it was determined that Mullis and Waters’ DNA were on the gloves. Id. at
592-501. Investigators also found pieces of duct-tape that had a blood-like
substance on them. Id. at 441-44. Police interviewed three people near the

scene, one said she heard yelling and a car drive off and another man said he
observed a black male, who appeared to be bleeding, come to his house but he
told the man to leave. Id. at 427. Notably, Waters testified the only place he
went to after the incident was the Hardee’s. Id. at 243. Approximately a

quarter of a mile from the burning car, police located Thornton and Mullis
walking along the side of the road. Id. at 394-400. An officer testified that
Thornton seemed shocked and extremely nervous when they stopped him. Id.
at 394-400. Police obtained receipts and other information from two local gas

stations, showing that Thornton and Mullis bought beer (Colt and Natural Ice),
cigars and cigarettes, and $1.00 worth of gas. Id. at 384-86, 421-26. Of import,
a partially burnt Natural Ice beer can was found in the vehicle. Id. at 449-50.
Once transported to the station, police interviewed Thornton and Mullis.

Id. at 525-27, 562-78. Following their interview with Mullis, police drove with
her to a hotel where she and Thornton were staying. Id. at 531-32. At the hotel,
Mullis showed police where they had hidden the gun, which was actually a BB
gun designed to look like a real firearm, and Waters’ cellphone. Id. at 531-33,
543-44, 547-50, 634. Inside Thornton and Mullis’ hotel room, police found

cigars and Natural Ice beer cans. Id. at 550-52. During the interview with
Thornton, he confessed to planning to lure Waters to Mullis’ residence and
robbing and injuring Waters. Id. at 570-75.
Based on this extensive evidence of Thornton’s guilt, it cannot be said

that the prosecutor’s comments, even if for the sake of argument they were
improper, so tainted the trial as to prevent Thornton from getting a fair
proceeding. An eyewitness gave extensive testimony of Thornton’s involvement
and identified Thornton in court and out of court. The forensic evidence

substantiated Waters’ testimony and incriminated Thornton. Moreover,
Thornton confessed. In light of this record, there is no reasonable probability
the outcome of the trial would have been different had these comments never
been made. As Thornton has failed to establish either deficient performance or

prejudice, relief on the claim in Ground Four is due to be denied.
E. Ground Five
Thornton contends that his counsel was ineffective for failing to seek
interrogatories on the verdict form to allow the jury to choose whether the

deadly weapon was a BB gun, a knife, or both. Memorandum at 12-13.
Additionally, he asserts that his counsel should have objected to his conviction
for robbery with a deadly weapon on the grounds that the jury did not make
the proper finding. Id. According to Thornton, counsel should have requested
the interrogatory “because there was no clear distinction whether the jury’s

decision met the qualifications of a deadly weapon by statute.” Id. at 13.
Thornton maintains that the absence of the interrogatory “negated a critical
element that elevated the severity of punishment from fifteen to thirty years,”
and “precluded argument as to whether the BB gun or knife qualified as a

deadly weapon by fact and law.” Id.
In his Rule 3.850 Motion, Thornton raised a substantially similar claim.
Resp. Ex. R at 18-20. The circuit court denied relief on this claim, finding:
Defendant argues counsel was ineffective for failing to
object to an increased penalty without the proper jury
finding. Specifically, Defendant alleges there was no
specific finding made by the jury as to whether the BB
gun or the knife/unidentified object was the deadly
weapon. As such, without the finding, Defendant
surmises that he could only be sentenced to a second
degree felony of simple robbery.

The Court finds Defendant’s argument without
merit. First, the jury was given the opportunity to
convict Defendant of simply robbery and found that
the evidence proved beyond a reasonable doubt that
Defendant committed robbery with a deadly weapon.
Second, no specific jury finding was necessary to
convict Defendant. It was immaterial whether the jury
found the BB gun, the knife, or both as a deadly
weapon.

Therefore, the Court finds that Defendant has
failed to demonstrate that counsel’s performance was
deficient or that the outcome of the proceedings would
have been different. Defendant is not entitled to relief
on Ground Five.

Id. at 69 (record citations omitted). The First DCA affirmed the denial of relief
without a written opinion. Resp. Exs. JJ; KK.
To the extent that the First DCA decided the claim on the merits, the
Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Thus, Thornton is not entitled to
relief on the basis of this claim.

Even if the First DCA’s adjudication of the claim is not entitled to
deference, the claim in Ground Five is without merit. As discussed above, if
during the commission of a robbery the offender “carried a firearm or other
deadly weapon,” then the robbery is a first-degree felony punishable by life. §

812.13(2)(a), Fla. Stat. If the offender only carried a “weapon,” then the robbery
would be a first-degree felony punishable up to thirty years in prison. §
812.13(2)(b), Fla. Stat. If a defendant did not carry any weapon, then the
robbery would be a second-degree felony punishable up to fifteen years in
prison. § 812.13(2)(c), Fla. Stat. Thus, the key element enhancing the
punishment for robbery is whether there is a firearm or deadly weapon, a

weapon, or no weapon at all. See Mashburn v. State, 745 So. 2d 453, 454 (Fla.
5th DCA 1999) (“Whether the weapon is a ‘firearm or other deadly weapon’ or
simply a ‘weapon’ determines the level of the offense for scoring purposes.”).
Here, the State charged Thornton with robbery with a deadly weapon.

Resp. Ex. A at 7-8. The Verdict form included specific interrogatories asking
the jury to choose whether Thornton committed the robbery with a deadly
weapon, a weapon, or no weapon at all. Id. at 34. As such, the verdict properly
included interrogatories on each of the potential elements that could enhance

the penalty for Thornton’s robbery conviction. See Mashburn, 745 So. 2d at
454. Moreover, as explained in greater detail above, the State presented
sufficient evidence for a reasonable jury to conclude that either the BB gun or
the object used to stab Waters could be a deadly weapon. As either the BB gun

or unidentified knife-like weapon could have supported a finding that
Thornton carried a deadly weapon, asking the jury to specifically determine
which object they relied on in concluding Thornton carried a deadly weapon
would not have changed the outcome of the trial. Accordingly, Thornton has

failed to establish either deficient performance or prejudice. Therefore, the
claim for relief in Ground Five is due to be denied.
F. Ground Six
As Ground Six, Thornton argues that his counsel failed to challenge the

introduction through law enforcement witnesses Sara Taylor and Matthew
Edmonson of impermissible prior consistent statements Waters made.
Memorandum at 15-16. According to Thornton, introduction of Waters’ prior
statements impermissibly bolstered the credibility of Waters’ trial testimony.

Id. at 16.
Respondents contend this claim is unexhausted. Response at 65-79. In
the Memorandum, Thornton concedes he failed to exhaust this claim, but
contends the Court should address the merits under Martinez v. Ryan.

Memorandum at 14-15. 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).
Upon review, the Court finds that this is not a “substantial” claim. First,
any objection would have been meritless, because the circuit court ruled the
door had been opened to this testimony. During Taylor’s testimony, the

prosecutor objected to defense counsel asking questions about what Waters
told Taylor but the trial court overruled the objection. Resp. Ex. B at 185. Once
the defense asked questions related to what Waters had told Taylor, the State,
to provide context and completeness to the cherry-picked comments elicited on

cross-examination, entered into evidence everything Waters told Taylor. Id. at
194-97. The prosecutor did the same on redirect during Edmonson’s testimony.
Id. at 623-30. Any objection; therefore, would have been fruitless. Counsel
cannot be deemed deficient for failing to raise a meritless argument. See Diaz,
402 F.3d at 1142; Bolender, 16 F.3d at 1573.

Moreover, Thornton cannot demonstrate prejudice. As Thornton states
in the Memorandum, Waters testified to these same facts during trial.
Therefore, Taylor and Edmonson’s testimony concerning what Thornton told
them was merely cumulative to other evidence presented to the jury. The State,

as explained above, presented substantial evidence of Thornton’s guilt,
including Thornton’s confession. In light of the amount of incriminating
evidence against Thornton, there is no reasonable probability the outcome of
the trial would have been different had counsel objected to the introduction of

Waters’ prior statements. Accordingly, this claim is not a “substantial” one
such that Thornton should be excused for failing to exhaust. In light of the
above analysis, relief on the claim in Ground Six is due to be denied.
G. Ground Seven

According to Thornton, his counsel was deficient for failing to object to
the admission of the BB gun, tape, latex gloves, and photographs of possible
blood and shoe prints where the State failed to establish sufficient evidence
linking these items to Thornton’s commission of the charged offenses.

Memorandum at 17-19. Respondents argue, Response at 65-79, and Thornton
concedes, Memorandum at 14-15, that Thornton did not exhaust this claim in
state court. However, Thornton contends that his failure to exhaust should be
excused pursuant to Martinez. Memorandum at 14-15. As such, the Court
considers whether this claim is a “substantial” claim such that Martinez would

apply to excuse the default.
The record refutes Thornton’s allegations that the State failed to connect
the BB gun, tape, latex gloves, and photographs to his commission of the
offense. As explained above, Waters testified Thornton had a gun and Mullis

led police to the gun, which was actually a BB gun. This evidence shows a
connection between the BB gun and Thornton’s commission of the offenses.
Likewise, Waters testified that Thornton and Mullis wore latex gloves and
used tape to secure his hands. Finding used gloves and tape at the scene of the

crime corroborates Thornton’s testimony. Similarly, the picture of the boot
print and blood aligns with Waters’ testimony that Thornton stabbed him six
to seven times and Waters escaped from the vehicle. The boot print and blood
at the scene again corroborates Waters’ version of events. As each piece of

evidence was linked to Thornton via Waters’ testimony, any objection on the
grounds that these items were irrelevant would have been meritless. Counsel
is not deficient for failing to raise a meritless issue. See Diaz, 402 F.3d at 1142;
Bolender, 16 F.3d at 1573. Accordingly, this claim is not substantial, and

Thornton cannot rely on Martinez to excuse his failure to exhaust. Relief on
the claim in Ground Seven is due to be denied.
H. Ground Eight
Last, Thornton contends that his counsel rendered deficient performance

when she failed to object and move for a mistrial when the State introduced a
non-testifying co-defendant’s hearsay statements that led police to inculpatory
evidence against Thornton. Memorandum at 20-21. Thornton maintains that
the State elicited testimony from Detective Kenneth West that included

hearsay statements Mullis made to him during the investigation. Id. According
to Thornton, introduction of these statements violated his right to confront
witnesses where he was not allowed to cross-examine Mullis due to the fact she
invoked her right not to testify at their joint trial. Id. Thornton argues that

these statements “created the inference that there existed evidence the jury
was not privy to.” Id. at 21.
Respondents maintain this claim is unexhausted. Response at 65-79.
Thornton admits he did not raise this claim in state court but contends the

Court should address the merits of the claim under Martinez. Memorandum
at 14-15. This claim is not a substantial claim because Thornton cannot
demonstrate prejudice. Between Waters’ testimony and Thornton’s confession,
there is no reasonable probability the outcome of the trial would have been

different had West never testified. As Thornton cannot demonstrate prejudice,
his claim of ineffective assistance of counsel fails. Therefore, this claim is not
substantial and cannot be a basis for relief.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)

If Thornton 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, Thornton “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 Thornton 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 21st day of May,
2021.

United States District Judge

AT

Jax-8

C: Darrell Thornton #132646
Counsel of record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107619. Public record. Not legal advice.