Smith v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JAMELLE RASHARD SMITH,

Petitioner,

v. Case No. 8:18-cv-0049-KKM-SPF

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

______________________________/

ORDER

Jamelle Rashard Smith filed a timely, counseled petition under 28 U.S.C. § 2254,

challenging his state convictions based on the sufficiency of the evidence presented at

trial and alleged failures of both his trial and appellate counsel. (Doc. 1 & 4-1).

Respondent filed a response opposing the petition. (Doc. 10). Smith did not reply.

Upon consideration of the petition, memorandum, response, and appendix to the

response, the petition is denied. Furthermore, a certificate of appealability is not

warranted.

I. BACKGROUND

A. Procedural History

A jury convicted Smith of one count of attempted first-degree murder, (Doc. 12,

Ex. 1, p. 67), and the trial court sentenced him to twenty-five years in prison, (Id., pp.

95-100). The state appellate court affirmed per curiam the conviction and sentence.

(Doc. 12, Ex. 5). Smith sought postconviction relief under Florida Rule of Criminal

Procedure 3.850. (Doc. 12, Ex. 7). The state court summarily denied his motion. (Doc.

12, Ex. 8). The state appellate court affirmed per curiam the denial of postconviction

relief. (Doc. 12, Ex. 11). The state appellate court also denied Smith’s petition alleging

ineffective assistance of appellate counsel, filed under Florida Rule of Appellate

Procedure 9.141. (Doc. 12, Exs. 13, 14). Smith then timely filed this federal habeas

petition under § 2254 alleging ten individual grounds of relief, the first two based on

the sufficiency of the evidence presented at trial and the latter eight based on ineffective

assistance of counsel. (Doc. 1).

B. Factual Background1

In the early morning hours of March 23, 2014, a large number of people gathered

at a location known as “Man Spot” in Lake Wales, Florida. The crowd was socializing,

and alcohol was available. While there, Smith and Andrae Pittman got into a fight, and

Smith shot Pittman numerous times. The State asserted that Smith acted with a

premeditated intent to kill Pittman. Smith argued that he acted in self-defense.

1. The State’s Evidence at Trial

Pittman testified that he and Smith were acquainted; they were “chilling” with a

mutual friend about a week prior and there was “no bad blood” between them. (Doc.

12, Ex. 2, Vol. III, p. 295). Pittman conceded that years earlier, in 2008, they were

1 The factual background is based on the trial transcript and appellate briefs.

involved in an incident where Pittman hit Smith with a gun. (Id., p. 316). But Pittman

testified that what happened in 2008 was “over with.” (Id., p. 327).

Witnesses called by the State described Smith as agitated and angry the night of

the shooting. See, e.g., (Doc. 12, Ex. 2, Vol. II, pp. 160, 227–28). Smith was dating

Stephanie Gutierrez and spent time with her at Man Spot. (Id., p. 260). When Smith saw

Pittman talking to Gutierrez, he said something to Pittman and then “got into it with

Stephanie.” (Id., p. 227). Smith was described as upset with Stephanie and as having a

confrontation with “other girls” to whom Pittman was talking. (Id., p. 228). Pittman

even tried to diffuse a verbal altercation between Smith and Markisha Wilson. (Id., p.

229). Eventually, Pittman told Smith to calm down because no one wanted trouble and

to go home. (Id., p. 230). At one point, a witness recalled, Smith indicated he was going

to fight that night. (Id., p. 165).

Eventually, Pittman agreed to fight. Smith hit Pittman, and a fistfight began

between the two. (Id., pp. 165, 261-62; Vol. III, pp. 359, 388-89). They moved into a

street and between cars as they fought. (Id., pp. 247-48, 262; Vol. III, pp. 303-04, 347).

A crowd was watching them, but the fight remained solely between Smith and Pittman.

Witnesses agreed that Pittman was winning the fight. Pittman pulled Smith’s tank top,

causing Smith to spin around. (Id., Vol. II, pp. 277–78). Smith then pulled a firearm

from his pants. (Id., p. 234; Vol. III, p. 304). One witness testified that, before he pulled

the gun, Smith appeared mad because people saw him losing. (Id., Vol. II, p. 283). When

Pittman saw Smith reach for his pocket, Pittman began moving backwards away from

Smith. (Id., Vol. III, p. 304). At that time, Smith and Pittman had physically separated.

(Id., Vol. II, p. 282; Vol. III, p. 304).

Smith shot Pittman in the stomach. Pittman fell to the ground, incapacitated.

Smith shot Pittman a second time. (Id., Vol. III, p. 305). Pittman begged Smith not to

shoot him again. Smith continued shooting, firing a total of nine shots, seven of which

hit Pittman. (Id., Vol. II, p. 201; Vol. III. p. 308). Onlookers subdued Smith, who left

the scene. Smith called 911 a short time later and turned himself into police.

2. The Defense’s Evidence

Smith denied that he was upset or angry that night. Stephanie Gutierrez testified

that Smith was “happy” and acting “normal” before the fight. (Doc. 12, Ex. 2, Vol. IV,

pp. 476-77). Smith testified that he had “no beef” with Pittman following the 2008

incident, but opined that Pittman had a reputation for violence. (Id., p. 549). Smith also

testified that he believed most of the men present that night had some kind of weapon

and that he felt like he could not trust people.

Smith testified to the following version of events: He was shaking hands with

another person when Pittman suddenly punched him. He did not see Pittman that night

before Pittman hit him, and he tried to run away. A crowd was moving towards him

and Pittman was chasing him. He was down on one knee while Pittman was hitting him

in the head. Smith told Pittman to stop. He thought Pittman would kill him or severely

beat him. (Id., pp. 529–39).

Smith testified that Pittman was still beating him when Smith started shooting.

Smith testified that Pittman “kept coming at” him after the first shot. (Id., p. 558). Smith

testified that he did not intend to kill Pittman and that he shot Pittman because he was

in fear. Smith explained that once he started shooting, he “never stopped.” (Id., p. 535).

Gutierrez testified that she saw Smith on his back with the crowd over him when she

heard gunshots. (Id., p. 478).

II. Standards of Review of an Application Under Section 2254

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

this proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas

relief under the AEDPA can be granted only if a petitioner is in custody “in violation

of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section

2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on

the merits in state court unless the state court’s adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court

proceeding.

For purposes of § 2254(d)(1), a decision is “contrary to” clearly established

federal law “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.” Williams v. Taylor,

529 U.S. 362, 413 (2000). The phrase “clearly established Federal law” encompasses

only the holdings of the United States Supreme Court “as of the time of the relevant

state-court decision.” Id. at 412. A decision involves an “unreasonable application” of

clearly established federal law “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.

For purposes of § 2254(d)(2), a state court’s findings of fact are presumed

correct. See Rolling v. Crosby, 438 F.3d 1296, 1301 (11th Cir. 2006) (“The factual findings

of the state court, including the credibility findings, are presumed to be correct . . . .”).

A petitioner can rebut the presumption of correctness afforded to a state court’s factual

findings only by clear and convincing evidence. § 2254(e)(1).

The AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that

state-court convictions are given effect to the extent possible under law.” Bell v. Cone,

535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s

application of clearly established federal law is objectively unreasonable, and . . . an

unreasonable application is different from an incorrect one.” Id. at 694. As a result, to

obtain relief under the AEDPA, “a state prisoner must show that the state court’s ruling

on the claim being presented in federal court was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also

Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (stating that “[t]he state court’s application of

clearly established federal law must be objectively unreasonable” for a federal habeas

petitioner to prevail and that the state court’s “clear error” is insufficient).

When the last state court to decide a federal claim explains its decision in a

reasoned opinion, a federal habeas court reviews the specific reasons as stated in the

opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.

1188, 1192 (2018). When the relevant state-court decision is not accompanied with

reasons for the decision—such as a summary affirmance without discussion—the

federal court “should ‘look through’ the unexplained decision to the last related

state-court decision that does provide a relevant rationale [and] presume that the

unexplained decision adopted the same reasoning.” Id. The State may contest “the

presumption by showing that the unexplained affirmance relied or most likely did rely

on different grounds than the lower state court’s decision . . . .” Id.

In addition to satisfying the deferential standard of federal court review of a state

court adjudication, a federal habeas petitioner must exhaust his claims by raising them

in state court before presenting them in a federal petition. See 28 U.S.C. § 2254(b)(1)(A);

O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state

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

court in a habeas petition.”). A petitioner satisfies this exhaustion requirement if he

fairly presents the claim in each appropriate state court and alerts that court to the

federal nature of the claim. Baldwin v. Resse, 541 U.S. 27, 29 (2004).

The doctrine of procedural default provides that “[i]f the petitioner has failed to

exhaust state remedies that are no longer available, that failure is a procedural default

which will bar federal habeas relief, unless either the cause and prejudice or the

fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d

1135, 1138 (11th Cir. 2001). A petitioner shows cause for a procedural default when he

demonstrates “that some objective factor external to the defense impeded the effort to

raise the claim properly in the state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th

Cir. 1999). A petitioner demonstrates prejudice by showing that “there is at least a

reasonable probability that the result of the proceeding would have been different”

absent the constitutional violation. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir.

2003). “A ‘fundamental miscarriage of justice’ occurs in an extraordinary case, where a

constitutional violation has resulted in the conviction of someone who is actually

innocent.” Id.

III. ANALYSIS

A. Sufficiency of the Evidence (Grounds One and Two)

Smith challenges the sufficiency of the evidence presented to (1) rebut his prima

facie case of self-defense and (2) establish premeditation. (Doc. 1, pp. 16–17). Under

the Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307, 319 (1979), a court

reviewing a challenge to the sufficiency of the evidence must evaluate whether, after

viewing the evidence in the light most favorable to the prosecution, any rational juror

could have found proof of guilt beyond a reasonable doubt. The Jackson standard must

be applied “with explicit reference to the substantive elements of the criminal offense

as defined by state law.” Id. at 324 n.16. Under Jackson, the prosecution does not have

“an affirmative duty to rule out every hypothesis except that of guilt beyond a

reasonable doubt.” Id. at 326. If the record contains facts supporting conflicting

inferences, the jury is presumed to have resolved those conflicts in favor of the

prosecution and against the defendant. Id.

Consistent with the AEDPA, “a federal court may not overturn a state court

decision rejecting a sufficiency of the evidence challenge simply because the federal

court disagrees with the state court. The federal court instead may do so only if the state

court decision was ‘objectively unreasonable.’ ” Cavazos v. Smith, 565 U.S. 1, 2 (2011)

(quoting Renico v. Lett, 559 U.S. 766, 773 (2010)).

1. Ground One

Smith contends that the State presented insufficient evidence to overcome his

claim of self-defense and that the state court should have granted his motion for a

judgment of acquittal and motion to dismiss under the Florida Stand Your Ground

law.2 (Doc. 4-1, p. 22, 25); (Doc. 12, Ex. 2, Vol. IV, 568). Respondent asserts that

Smith’s claim is unexhausted because he never alerted the state court to the federal

dimension of the claim. (Doc. 10, p. 15). Near the beginning of his response,

2 Petitioner does not identify whether he challenges the state court’s decision as an

unreasonable application of clearly established federal law or an unreasonable determination

of facts. See 28 U.S.C. § 2254(d)(1)–(2). Regardless, his claims fail under either standard.

Respondent concedes that all claims are exhausted “for federal habeas corpus

purposes.” (Id., p. 8). While a state may expressly waive exhaustion of as to any issue in

a federal habeas case, it is also within the district court’s discretion to accept any such

waiver.Vazquez v. Sec’y, Fla. Dep’t of Corr., 827 F.3d 964, 966–67 (11th Cir. 2016) (“Where

a state waives exhaustion, the district court may consider the procedural bar sua sponte

if ‘requiring the petitioner to return to state court to exhaust his claims serves an

important federal interest.’ ” (quoting Esslinger v. Davis, 44 F.3d 1515, 1524 (11th Cir.

1995))).

Because Smith never identified the federal nature of this self-defense claim to

either the state trial court or state appellate court, he failed to exhaust Ground One. At

trial, defense counsel made the following motion:

[A]t this time I’m moving for a judgment of acquittal on the grounds that

the State has not proved the necessary elements to prove attempted

premeditated murder and there definitely is not enough to go forward on

a first degree murder at this time. The State has not rebutted the

defendant’s testimony even in their case in chief. I’m also moving at this

time for the Court to grant a motion to dismiss under Florida Statute, the

stand your ground law, which I gave the court the case law.

(Doc. 12, Ex. 2, Vol. IV, p. 565). Defense counsel provided citations only to Florida

Statutes and Florida case law. (Id.). In ruling on the motions, the trial court

concluded “[t]here is sufficient conflict in the testimony that it is a classic case for

jury resolution. So I’ll deny the motion and let the jury decide the facts of the case.”

(Id., p. 568).

Smith’s appellate brief on direct appeal refers only to state law, and he

nowhere suggests that his challenge of the sufficiency of the evidence is federally

based. (Doc. 12, Ex. 3). Nothing in the record “put the state court on notice that

[Smith] intended to raise a federal claim.” Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d

449, 458–59 (11th Cir. 2015) (finding a sufficiency of the evidence claim not

exhausted where the petitioner did not cite Jackson or otherwise note the federal

standard was applicable).

The Court declines to accept Respondent’s exhaustion waiver for two

reasons. First, it appears that the waiver was inadvertent—although making a

passing reference to all grounds being exhausted, the Respondent vigorously argued

failure to exhaust Grounds One and Two later in its response. (Doc. 10, pg. 15–

20). Because the waiver is contradicted elsewhere and seems to have been a drafting

error, the Court finds that exhaustion has not been expressly waived because the

waiver does not “communicate[ ] to the court its intention not to pursue”

exhaustion as to these grounds. Vasquez, 827 F.3d at 967; see also McNair v. Campbell,

416 F.3d 1291, 1304 (11th Cir. 2005) (finding no express waiver where the state

failed to raise exhaustion). Second, to the extent the Respondent’s drafting error

can be construed as an express waiver, the Court exercises its direction to reject the

waiver because it would not serve a federal interest and would be contrary to the

AEDPA to rule on the underlying issue based on a record which shows no

opportunity for the state courts to adjudicate the federal question in the first

instance. See Esslinger, 44 F.3d at 1524–25; Thompson v. Wainwright, 714 F.3d 1495,

1503–04 (11th Cir. 1983) (“Exhaustion of state remedies is not a concept of subject

matter jurisdiction but rather of federalism and comity, intended to give the state

the initial opportunity to decide alleged violations of federal constitutional rights.”).

Notwithstanding the Court’s decision not to accept the exhaustion waiver, Smith

is not entitled to relief on the merits. When reviewing a case for sufficiency of the

evidence, a federal court must “look to state law for the substantive elements of the

criminal offense.” Preston, 785 F.3d at 464 (quoting Coleman v. Johnson, 566 U.S. 650, 656

(2012)). Under Florida law, if a defendant makes a prima facie showing of self-defense,

the State must prove beyond a reasonable doubt that the defendant did not act in self-

defense. Early v. State, 223 So. 3d 1023, 1025 (Fla. 1st DCA 2017). If the state does not

carry its burden, the trial court must grant a motion for judgment of acquittal for the

defendant but only if “the evidence is such that no view which the jury may lawfully

take of it favorable to the opposite party can be sustained under the law.” Id. at 1025–

26 (quoting Morgan v. State, 127 So. 3d 708, 717 (Fla. 5th DCA 2013)).

Smith fails to establish that the state court unreasonably rejected his claim. When

he moved for a judgment of acquittal and a motion to dismiss under Florida Statutes

based on the State’s failure to rebut his prima facie case of self defense, the state trial

court concluded that the evidence presented a sufficient conflict to warrant resolution

by the jury. (Doc. 12, Ex. 2, Vol. IV, p. 568). Under Florida law, “[a] person is justified

in using or threatening to use deadly force if he or she reasonably believes that using or

threatening to use such force is necessary to prevent imminent death or great bodily

harm to himself or herself or another or to prevent the imminent commission of a

forcible felony”. § 776.012(2), Fla. Stat. The state trial court correctly applied this

Florida law on self-defense when rejecting Smith’s motion for judgment of acquittal, as

evidenced in its jury instructions. (Doc. 12, Ex. 1, p. 57) (instructing on self-defense,

specifically on the legal standard under the governing statute—the subjective,

reasonable person standard—and the right of the defendant to stand his ground if he

was not engaged in unlawful activity and was attacked in a place he had a right to be).

Further, the record supports the state court’s ruling and the jury’s verdict. The

State presented evidence that Pittman began to back away from Smith once Smith

reached for his gun (Doc. 12, Ex. 2, Vol. III, p. 304); that Smith’s first shot knocked

Pittman to the ground (Id., Vol. II, p. 235; Vol. III, pp. 304-05); that Pittman was

incapacitated and begged Smith not to shoot again (Id., Vol. II, pp. 235, 264; Vol. III,

p. 305); and that Smith continued to shoot at Pittman (Id., Vol. II, pp. 236, 264; Vol.

III, p. 305). A rational juror, viewing the evidence in the light most favorable to the

State, could find Smith did not reasonably believe that the use of deadly force was

necessary to prevent imminent death or great bodily injury to himself or another or to

prevent the commission of a forcible felony. Smith has not established that the state

court’s decision was contrary to, or involved an unreasonable application of, clearly

established federal law or was based on an unreasonable factual determination.

Accordingly, he is not entitled to habeas relief on Ground One.

2. Ground Two

Smith argues that the State presented insufficient evidence of premeditation,

violating his due process rights under Jackson. Smith contends that the State failed to

adduce sufficient evidence to show that he consciously intended to kill Pittman. (Doc.

4-1, pp. 25–27). According to Smith, he was “surrounded by a hostile crow[d], getting

beaten up when he took out a gun and fired several shots in rapid succession.” (Doc.

1, p. 17). He further contends that he made no statements showing an intention to kill

Pittman and did not “make any special arrangements to bring a weapon to use against

the victim.” (Id.).

Respondent again argues that Smith failed to exhaust this claim because he did

not present the federal nature of it to the state courts. (Doc. 10, p. 17). At the appellate

court, Smith raised his federal right to due process when he argued on appeal that the

state court erred in rejecting his motion for judgment of acquittal, which challenged the

sufficiency of the State’s evidence of premeditation. (Doc. 12, Ex. 3, p. 27). Specifically,

Smith argued that “[t]he due process clauses of the United States and Florida

constitutions require the State to prove a defendant guilty beyond a reasonable doubt.”

(Id.). Smith exhausted this claim in state court and this Court will review the claim on

the merits.

In Florida, to prove attempted first-degree murder, the State had to prove

beyond a reasonable doubt that defendant committed “(1) an act intending to cause

death that went beyond just thinking or talking about it; (2) a premeditated design to

kill; and (3) the commission of an act which would have resulted in the death of the

victim except that someone prevented the defendant from killing the victim or the

defendant failed to do so.” Holliday v. State, 781 So. 2d 496, 498 (Fla. 5th DCA 2001).

The Florida Supreme Court has further explained that “[p]remeditation is defined as ‘a

fully-formed conscious purpose to kill, which exists in the mind of the perpetrator for

a sufficient length of time to permit . . . reflection, and in pursuance of which an act of

killing ensues.’” Johnston v. State, 863 So. 2d 271, 285 (Fla. 2003). Premeditation may be

formed “a moment before the act but must exist for a sufficient length of time to permit

reflection as to the nature of the act to be committed and the probable result of that

act.” Coolen v. State, 696 So. 2d 738, 741 (Fla. 1997) (quoting Wilson v. State, 493 So. 2d

1019, 1021 (Fla. 1986)). Premeditation may be established by circumstantial evidence.

Woods v. State, 733 So. 2d 980, 985 (Fla. 1999). “Such evidence of premeditation includes

the nature of the weapon used, the presence or absence of adequate provocation,

previous difficulties between the parties, the manner in which the homicide was

committed, and the nature and manner of the wounds inflicted.” Id. (quotation

omitted).

The state trial court denied the motion for acquittal because it concluded “[t]here

is sufficient conflict in the testimony that it is a classic case for jury resolution.” (Doc.

12, Ex. 2, Vol. IV, p. 568). Smith fails to show that no rational juror viewing the

evidence in the light most favorable to the State could find proof of premeditation

beyond a reasonable doubt, much less that the trial court’s determination that on this

issue was unreasonable. See Jackson, 443 U.S. at 319. First, the state court correctly

applied the law when denying the motion for judgment of acquittal. (Doc. 12, Ex. 2,

Vol. IV, p. 568). Additionally, it correctly instructed as to the elements of the crime and

of what the State was required to prove regarding premeditation (and Smith takes no

issue with the jury instructions). (Doc. 12, Ex. 1, p. 51).

The record likewise supports the state trial court’s ruling. The State presented

evidence that Smith was agitated prior to the offense, and in particular, that he was

upset when Pittman talked to Stephanie Gutierrez. (Doc. 12, Ex. 2, Vol. II, p. 227).

State witnesses testified that Pittman told Smith to calm down, but that Smith initiated

physical contact with Pittman. (Id., Vol. II, pp. 165, 229, 266; Vol. III, pp. 300, 346, 359,

388-89). The State presented evidence that Pittman was backing away from Smith when

Smith reached for his gun. (Id., Vol. III, p. 304). The State’s evidence also showed that

Smith’s first shot incapacitated Pittman and caused him to fall to the ground, from

which position he pleaded with Smith not to shoot him again. (Id., Vol. II, pp. 235, 264;

Vol. III, p. 304-05). Yet Smith fired another six shots at Pittman. (Id., Vol. III, pp. 305,

308). Viewing this evidence in the light most favorable to the State, a rational juror

could find the evidence sufficient to prove beyond a reasonable doubt the “fully-formed

conscious purpose to kill” necessary to establish premeditation. See Johnston, 863 So. 2d

at 285.

Smith has not shown that the state court’s rejection of his claim was contrary to,

or involved an unreasonable application of, clearly established federal law or was based

on an unreasonable factual determination. He is not entitled to relief on Ground Two.

B. Ineffective Assistance of Counsel (Grounds Three, Four, Five, Six,

Seven, Eight, Nine, and Ten)3

Smith brings six claims that his trial counsel was ineffective under the Sixth

Amendment (Grounds Three, Four, Five, Six, Seven, and Eight), a claim that the

cumulative error of his trial counsel entitles him to relief (Ground Nine), and one claim

that his appellate counsel was ineffective (Ground Ten). Under the well-known, two-

part standard articulated in Strickland v. Washington, 466 U.S. 668 (1984), to succeed, he

must show both deficient performance by his counsel and prejudice resulting from

those errors. Id. at 687. Because Smith fails to demonstrate that the state court’s

determination was contrary to, or involved an unreasonable application of, Strickland,

he is not entitled to relief on any of these grounds.

The first part of Strickland “requires showing that counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. The lynchpin of this analysis is whether counsel’s conduct “was

reasonable considering all the circumstances.” Id. at 688. A petitioner establishes

3 Smith seeks an evidentiary hearing on Grounds Three, Five, Six, and Seven. An evidentiary

hearing is not warranted. See Schriro, 550 U.S. at 474 (“[I]f the record refutes the applicant’s

factual allegations or otherwise precludes habeas relief, a district court is not required to hold

an evidentiary hearing.”).

deficient performance if, “the identified acts or omissions [of counsel] were outside the

wide range of professionally competent assistance.” Id. at 690. A court “must judge the

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

viewed as of the time of counsel’s conduct.” Id. “[C]ounsel is strongly presumed to have

rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.” Id.

The second part requires showing that the deficient performance prejudiced the

defense. Id. at 687. “An error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had no effect

on the judgment.” Id. at 691. To demonstrate prejudice, a petitioner 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.

“The question [on federal habeas review of an ineffective assistance claim] ‘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 (2009) (quoting

Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Consequently, federal petitioners rarely

prevail on claims of ineffective assistance of counsel because “[t]he standards created

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

tandem, review is doubly so.” Richter, 562 U.S. at 105 (quotation and citations omitted).

1. Ground Three

Smith asserts that trial counsel rendered ineffective assistance not filing a pretrial

motion to dismiss the attempted murder charge under Florida’s Stand Your Ground

law, which entitles applicants to immunity from prosecution if they satisfy its

requirements. See § 776.032(1), Fla. Stat. (providing that a person who uses force as

permitted by Florida law “is immune from criminal prosecution”); (Doc. 1, p. 17–18).

Smith claims that he would have been granted immunity from prosecution had counsel

filed the motion. (Id.). Alternatively, he contends that the motion would have assisted

him in “furthering his defense.” (Id.).

The state court denied Smith’s claim because it found a Stand Your Ground

motion would not have been successful based on the facts: “Several of the witnesses at

trial, Kawana Robinson, Jacquelyn Jennings, Sandralson Holmes, Phillip Odom, Willie

Peterson, all testified that [Smith] threw the first punch and shot the victim while

standing over him.” (Doc. 12, Ex. 8, pp. 1). The state court also stated that trial

testimony indicated “that the victim was moving away from [Smith] when the firearm

was brandished” and that they had been engaged only in a fist fight before that time.

(Id.) Given those facts, the state postconviction court concluded that Smith could not

demonstrate deficiency or prejudice. (Id. at 2).

Smith does not show that the state court unreasonably applied Strickland. The

underlying question of the validity of a motion to dismiss under Florida’s Stand Your

Ground law is a matter of state law. This Court must defer to the state court’s

determination that a motion to dismiss would not have succeeded. See Bradshaw v. Richey,

546 U.S. 74, 76 (2005) (“[The United States Supreme Court has] repeatedly held that a

state court’s interpretation of state law . . . binds a federal court sitting in habeas

corpus.”); Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017) (“[A]lthough ‘the

issue of ineffective assistance—even when based on the failure of counsel to raise a

state law claim—is one of constitutional dimension,’ [a federal court] ‘must defer to the

state’s construction of its own law’ when the validity of the claim that . . . counsel failed

to raise turns on state law.” (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th

Cir. 1984))); Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1354–55 (11th Cir. 2005) (“The

Florida Supreme Court already has told us how the issues would have been resolved

under Florida state law had [petitioner’s counsel] done what [petitioner] argues he

should have done . . . . It is a ‘fundamental principle that state courts are the final arbiters

of state law, and federal habeas courts should not second-guess them on such

matters.’ ” (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997))). Therefore,

Smith can succeed on this issue only if he can establish that, assuming the futility of the

motion as determined by the state court, it was nonetheless an unreasonable application

of Strickland to conclude he failed to establish ineffective assistance of counsel.

Obviously not.

Nor can Smith show that the state court unreasonably determined the facts in

denying this ground. Smith contends that the state court made an erroneous factual

finding that witnesses testified that Smith “began” shooting while he was standing over

Pittman. Smith also notes that witness Kawana Robinson testified that Smith and

Pittman were “contacting each other” when Smith began shooting. (Doc. 12, Ex. 2,

Vol. II, p. 234). Therefore, Smith contends that the state court made an unreasonable

factual finding in stating that witnesses, including Robinson, testified Pittman was

moving away from Smith when Smith started shooting. Despite these apparent

discrepancies (different witnesses testified to various accounts of the event), Smith did

not show by clear and convincing evidence that the state court’s denial of his claim was

“based on” an unreasonable determination of the facts, as he must under § 2254(d)(2).

The state court considered numerous facts in ruling that a motion to dismiss would

have been denied. It is this ruling to which the Court must defer on federal habeas

review. Cf. Bishop v. Warden, GDCP, 726 F.3d 1243, 1255 (11th Cir. 2013) (describing

the difference between a judicial “opinion” that provides a court’s reasoning and a

judicial “decision” and explaining that deference is accorded to the state court’s

“decision” even absent an “opinion.”).

Lastly, Smith does not explain how filing a motion to dismiss would have aided

him in “furthering his defense.” The state court found that the motion would have

failed as a matter of Florida law, and as the state court’s order indicates, counsel is not

ineffective in forgoing a claim that lacks merit. See Bolender v. Singletary, 16 F.3d 1547,

1573 (11th Cir. 1994) (“[I]t is axiomatic that the failure to raise nonmeritorious issues

does not constitute ineffective assistance.”). Accordingly, Smith has not met his burden

of showing that the state court’s decision involved an unreasonable application of

Strickland or was based on an unreasonable factual determination. Smith is not entitled

to relief on Ground Three.

2. Ground Four

Smith contends that trial counsel rendered ineffective assistance by failing to ask

the jury panel about the media “coverage of the African American community in the

Ferguson, Missouri riots” that occurred prior to trial. (Doc. 1, p. 18). Smith argues that

“[i]t was imperative to question the venire regarding the portrayal of African American

communities’ propensity for riots and violence to ensure the media coverage would [sic]

affect the venire’s ability to distinguish the events at Ferguson from the charged events.”

(Id., pp. 18–19). The state court summarily denied Smith’s ineffective assistance claim

when he presented it in his Rule 3.850 motion, concluding that it should have been

raised on direct appeal, not postconviction attack. (Doc. 12, Ex. 8, p. 2).

Smith does not show that the state postconviction court unreasonably denied his

ineffective assistance claim. Smith merely speculates that members of the jury panel

may have been impacted by what he describes as the media’s “portrayal of African

American communities’ propensity for riots and violence.” (Doc. 1, p. 19). Smith’s

theory about Ferguson’s influence on his jury in Polk County, Florida, and how those

national events affected his jury’s ability to remain fair and impartial is entirely

speculative. This sort of conjecture is not a basis to conclude that counsel was

ineffective. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (stating that a

petitioner’s “unsupported allegations” that are “conclusory in nature and lacking factual

substantiation” cannot sustain an ineffective assistance claim). Accordingly, Smith

cannot show that the state court unreasonably applied Strickland or that its decision was

based on an unreasonable determination of the facts. Smith is not entitled to relief on

Ground Four.

3. Ground Five

Smith argues that counsel was ineffective in not objecting to improper

prosecutorial remarks. Smith claims that the prosecutor asked the jury to hold Smith

“accountable” and that amounted to an impermissible plea for the jury’s sympathy,

which in turn rendered his trial “fundamentally unfair.” (Doc. .4-1, p. 34). Smith

identifies one remark in opening statements in support of this ground:

And, that, ladies and gentlemen, is why you should find the defendant

guilty as charged and hold him accountable for shooting the unarmed Mr.

Andrae Pittman.

(Doc. 12, Ex. 2, Vol. II, p. 121).

Smith also identifies the following two statements in closing argument:

Mr. Pittman was removing himself from the scene even though he knew

he was about to get blasted by the defendant and that first shot took him

out and incapacitated him and the defendant just kept firing, kept firing,

kept firing until there were no more rounds in the clip and that’s why the

defendant needs to be held accountable for what he did for shooting the

unarmed Mr. Pittman.

. . .

Ladies and gentlemen, hold the defendant accountable for what he chose

to do that did not have to happen, was not legally justified.

(Doc. 12, Ex. 2, Vol. IV, p. 589; Vol. V, p. 608).

The state court denied Smith’s claim because the comments were not improper

and did not rise to the level of fundamental error. (Doc. 12, Ex. 8, p. 2). Specifically,

the state court noted that these arguments were not the type of “golden rule’”

arguments that parties are prohibited from making. (Id.).

To the extent the state court’s ruling depends on an application of state law

concerning the propriety of the remarks, this Court must defer to the state court’s

determination that the comments were not improper and did not constitute

fundamental error. See Pinkney, 876 F.3d at 1295, 1297–98. Regardless, Smith fails to

show that the state court’s denial was an unreasonable application of Strickland’s

deficiency prong. While a prosecutor must refrain from appealing to the jury’s “passion

or prejudice,” see United States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir. 1985), Smith

does not establish that the prosecutor’s comments were improper. The prosecutor’s

comments were made in the context of arguing that the jury should reject Smith’s self-

defense theory and the State had presented sufficient evidence to overcome that theory.

(Doc. 12, Ex. 2, Vol. II, p. 121; Vol IV, pp. 587-89; Vol. V, p. 608). A prosecutor may

argue what inferences the jury should make from the evidence. See Merck v. State, 975

So. 2d 1054, 1061 (Fla. 2007) (stating closing argument is an opportunity for attorneys

“to review the evidence and to explicate those inferences which may be reasonably

drawn from the evidence”). In addition, as the state court noted, the comments did not

ask the jury to think about being in Pittman’s position, and they therefore did not violate

the “golden rule.” See Mosley v. State, 46 So. 3d 510, 520 (Fla. 2009) (explaining that

improper golden rule arguments “are arguments that invite the jurors to place

themselves in the victim’s position during the crime and imagine the victim’s

suffering”).

Further, Smith fails to show that the state court unreasonably applied Strickland’s

prejudice prong. Even assuming that the trial court would have sustained an objection

to the comments and instructed the jury to disregard the prosecutor’s remarks about

holding Smith “accountable,” Smith does not establish a reasonable probability of a

different outcome in the light of the State’s evidence of guilt. He is not entitled to relief

on Ground Five.

4. Ground Six

Smith alleges that trial counsel was ineffective in not introducing photographs

showing the extent of injuries Smith “sustained to his face, head, and knees.” (Doc. 1,

p. 20). Smith asserts that the photographs would have provided the jury with “clear

proof that Smith reasonably feared for his life” when he used deadly force. (Id.). Smith

also asserts that the photographs would have refuted the prosecutor’s contention that

Smith was not seriously injured.4

4 Smith notes that the prosecutor indicated in his opening statement and closing argument that

Smith was not injured. The prosecutor remarked in his opening statement:

But you’re . . . going to see pictures of the defendant and you’re going to see his

face and you’re going to see his arms and he had no injuries. So this wasn’t a

type of fight where the defendant got brutalized or beaten or was in fear of

anything.

The state court denied Smith’s claim because the record indicated that pictures

of Smith’s face were shown at trial and did not show any injuries. (Doc. 12, Ex. 8, pp.

2–3). Further, Officer John Dellavalle also testified on cross-examination that Smith

suffered abrasions to his side and knee and that he documented those injuries. (Id., pp.

209–11). Officer Dellavalle acknowledged that the photographs of Smith’s side and a

close-up photograph of Smith’s knee were not introduced by the State. (Id., p. 210–11).

(Id.)

Smith has not established that the state court unreasonably applied Strickland in

ruling that counsel was not ineffective for not introducing additional photographs. As

the state court noted, evidence about the injuries was introduced at trial. Officer

Dellavalle testified about the injuries that he observed. Additionally, Smith testified

about his injuries on his head and face and contended that these injuries were depicted

in the photographs introduced into evidence. (Doc. 12, Ex. 2, Vol. IV, pp. 553–55).

Smith also testified that his knee and side were scraped. (Id., p. 555).

(Doc. 12, Ex. 2, Vol. II, p. 114).

In his closing argument, the prosecutor stated:

[A]s you see from the pictures, he doesn’t have any serious injuries or any visible

injuries.

. . .

But nobody was knocked out. Nobody was bleeding. Nobody had any broken

bones.

(Doc. 12, Ex. 2, Vol. IV, pp. 575, 577).

Further, while Smith claims that photographs would show the full extent of his

injuries, he does not provide the photographs or more specifically describe what the

photographs depict. Unsupported, vague allegations fail to establish ineffective

assistance. See Tejada, 941 F.2d at 1559. Therefore, Smith has not shown a reasonable

probability of a different outcome had counsel introduced additional photographs.

Therefore, he also fails to show that the state court’s decision involved an unreasonable

application of Strickland or was based on an unreasonable factual determination. He is

not entitled to relief on Ground Six.

5. Ground Seven

Smith alleges that trial counsel was ineffective in not presenting available medical

records that would have shown the extent of Pittman’s intoxication at the time of the

offense. Smith argues that this evidence would “support Smith’s reasonable fear for his

life, to show the victim’s judgment was impaired at the time of the incident, and to rebut

the credibility of State witnesses that testified the victim was not too intoxicated at the

time of the incident.” (Doc. 1, p. 21).

The state court denied Smith’s claim because (1) Smith also told that court that

trial counsel obtained the records in question; and (2) witnesses for the State testified

that the victim was attempting to be the peacekeeper and Smith threw the first punch

and acted as the aggressor. (Doc. 12, Ex. 8, p. 3). The state court thus concluded that

whether the victim was drinking would not alter the outcome of the proceeding. (Id.).

Smith is not entitled to relief because the state court’s conclusion was not

unreasonable. Pittman testified that he had two drinks at Man Spot and that he smoked

a joint earlier in the day. (Doc. 12, Ex. 2, Vol. III, pp. 301-02). Pittman testified that he

was not drunk and he did not feel like he was “high or out of it.” (Id., p. 302). Pittman

testified that he had his senses about him and could see and understand what was

happening. (Id.).5

The state court did not unreasonably conclude that Smith failed to show a

reasonable probability that the outcome of trial would have been different even if

counsel established that Pittman was more intoxicated than the State’s evidence

indicates.6 While Smith asserts that Pittman was “extremely intoxicated,” Smith does

not show how Pittman’s alleged level of intoxication made Pittman act in a manner that

would have justified Smith’s use of deadly force. As Smith does not show that the state

court’s decision involved an unreasonable application of Strickland or was based on an

unreasonable factual determination, he is not entitled to relief on Ground Seven.7

5 While Smith contends that “State witnesses” testified that Pittman was not too intoxicated,

he does not name the witnesses or cite to the portions of the trial transcript containing such

testimony.

6 Smith has not presented the medical records, nor has he described with specificity what

information concerning Pittman’s intoxication those records would reveal.

7 Smith asserts that the state court made an unreasonable factual finding that the State’s

evidence showed Smith drew his firearm while Pittman was on the ground. Having considered

the state court’s ruling in its entirety, Smith has failed to establish that the ruling was “based

on” an unreasonable determination of the facts in the light of the evidence presented in the

state court proceeding. See § 2254(d)(2).

6. Ground Eight

Smith contends that trial counsel was ineffective in not presenting a sufficient

motion for judgment of acquittal. Smith contends that “[i]nstead of pointing to conflicts

in the evidence, counsel needed to argue that no evidence supported a finding of

premeditation, including the rapid firing of several rounds.” (Doc. 1, p. 22). He claims

that the motion would have been granted had counsel raised this argument.

The state court denied Smith’s claim. As to the first motion for judgment of

acquittal, the state court concluded that the motion would not have been granted based

on Smith’s alternative argument. (Doc. 12, Ex. 8, p. 3). As to the second motion for

judgment of acquittal, the state court similarly conclude that the motion would not have

been granted and would not have changed the outcome of the proceedings. (Id.).

Smith does not show that the state court unreasonably denied his claim. First, to

the extent the state court concluded the motions for judgment of acquittal would have

been denied, this Court is obliged to defer because that is a question of state law.

Pinkney, 876 F.3d at 1295 (“[A]lthough ‘the issue of ineffective assistance—even when

based on the failure of counsel to raise a state law claim—is one of constitutional

dimension,’ [a federal court] ‘must defer to the state’s construction of its own law’ when

the validity of the claim that . . . counsel failed to raise turns on state law.” (quoting

Alvord, 725 F.2d at 1291)); see also Rightmire v. Fla., Sec’y Dep’t of Corr., No. 17–10947–D,

2017 WL 3923327, at *3 (11th Cir. 2017) (describing a motion for judgment of acquittal

as a matter of state law). Counsel cannot be deficient for failing to raise a nonmeritous

claim. See Bolender, 16 F.3d at 1573 (“[I]t is axiomatic that the failure to raise

nonmeritorious issues does not constitute ineffective assistance.”).

Further, to the extent Smith appears to contend that counsel should have argued

that evidence of multiple gunshots did not establish premeditation because he fired

them rapidly, the state court did not unreasonably reject Smith’s claim in the light of

evidence that the first shot was fired as Pittman backed away and that Smith continued

shooting after Pittman was on the ground. (Doc. 1, p. 21); see Arnold v. State, 892 So. 2d

1172, 1173 (Fla. 5th DCA 2005) (“[A] trial court should not grant a motion for

judgment of acquittal unless the evidence adduced is such that no view that the jury

may lawfully take of it favorable to the State can be sustained under the law.”).

Additionally, as addressed in Ground Two, the state court rejected Smith’s motion for

judgment of acquittal because the evidence presented conflicts that required the jury’s

resolution. Thus, Smith fails to show a reasonable probability of a different outcome

even if counsel had raised the arguments that Smith proposes. Smith has not shown

that the state court’s ruling involved an unreasonable application or was based on an

unreasonable determination of facts. He is not entitled to relief on Ground Eight.

7. Ground Nine

Smith asserts that he is entitled to relief based on the cumulative effect of

counsel’s alleged errors. (Doc. 1, p. 23). The state court denied his claim because it

had denied all other claims of ineffective assistance. (Doc. 12, Ex. 8, p. 3). Smith does

not show that the state court’s finding was contrary to, or involved an unreasonable

application of, clearly established federal law. See Morris v. Sec’y, Dep’t of Corr., 677 F.3d

1117, 1132 (11th Cir. 2012) (stating that when none of the individual claims of error

have merit, “we have nothing to accumulate”). Smith is not entitled to relief on

Ground Nine.

8. Ground Ten

Smith also argues that his appellate counsel was ineffective. The entirety of

Smith’s argument is that “[c]ounsel provided ineffective assistance of counsel by failing

to raise arguments on appeal. Smith should be afforded the opportunity to have the

appellate arguments considered.” (Doc. 1, p. 24).8 Rule 2(c)(1) of the Rules Governing

Section 2254 Cases in the United States District Courts requires a petitioner to “specify

all the grounds for relief available to the petitioner.” Rule 2(c)(2) further requires a

petitioner to “state the facts supporting each ground.” Smith does not specify the which

grounds of ineffective assistance of appellate counsel he intends to bring and does not

state any facts in support. In addition, Respondent fails to acknowledge or address the

argument raised in Ground Ten. Thus, this claim is not adequately briefed by either

party. However, Smith states that he raises the same claim he brought in his Rule 9.141

petition alleging ineffective assistance of appellate counsel. Accordingly, the Court will

review the merits of the claim presented to the state appellate court.

8 Smith’s memorandum in support of his petition also does not address the claim of ineffective

assistance of appellate counsel.

In his Rule 9.141 petition, Smith argued that appellate counsel was ineffective in

not arguing that the trial court erred in denying his motion for new trial with respect to

media coverage of events in Ferguson, Missouri. (Doc. 12, Ex. 13).9 The state appellate

court denied his petition without explanation. (Doc. 12, Ex. 14). The question

underlying Smith’s ineffective assistance claim is whether the trial court erred in denying

his motion for new trial. Florida Rule of Criminal Procedure 3.600 sets out the bases

for granting a new trial and the validity of a motion to dismiss filed under Rule 3.600 is

a question of Florida law. This Court must defer to the state appellate court’s application

of this underlying state law question and its determination that Smith would not have

succeeded on appeal had appellate counsel raised the question. See Pinkney, 876 F.3d at

1295; Herring, 397 F.3d at 1354–55.

Smith fails to show that the state court’s rejection of his claim involved an

unreasonable application of Strickland or was based on an unreasonable factual

determination. Accordingly, he is not entitled to relief on Ground Ten.

IV. CERTIFICATE OF APPEALABILITY

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

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

9 Counsel filed a motion for new trial, arguing in part that a new trial was warranted because

she did not question the prospective jurors about their opinions of the events in Ferguson.

(Doc. 12, Ex. 1, p. 69). The trial court denied the motion. It noted that the facts of Smith’s

case were distinguishable from the facts surrounding events in Ferguson and found that there

was no reason to question the jury on the topic. (Doc. 12, Ex. 1, p. 72).

or court of appeals must first issue a certificate of appealability (COA). Id. To obtain a

COA, a petitioner must show that “jurists of reason could disagree with the district

court’s resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.” MiMer-E/ v.

Cockrell, 537 U.S. 322, 326 (2003); 28 U.S.C. § 2253(c)(2). Smith has not made the

requisite showing. Because Smith is not entitled to a COA, he is also not entitled to

appeal in forma pauperis.

It is therefore ORDERED that Smith’s Petition for Writ of Habeas Corpus

(Doc. 1) is DENIED. The CLERK is directed to enter judgment against Smith and to

CLOSE this case.

ORDERED in Tampa, Florida, on March 31, 2021.

fethry Feimble Maylle

Kathryn Kiccball Mirella

United States District Judge

33