Opinion

Hughlon v. State of Florida (Duval County)

Court: District Court, M.D. Florida
Filed: Sep 23, 2021
Cited by: 0 cases
Authority: More cited than 19.8%

stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”

How later courts described this case

stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
holding counsel cannot be ineffective for failing to raise a meritless argument
noting that “it is axiomatic that the failure to raise nonmeritorious issues does not constitute ineffective assistance.”
holding that where strong evidence of guilt was present, petitioner could not demonstrate prejudice of two jurors observing him in shackles during trial

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

BERNARD HUGHLON,

Petitioner,

v. Case No. 3:18-cv-619-MMH-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Bernard Hughlon,1 an inmate of the Florida penal system,

initiated this action on May 4, 2018,2 by filing a Petition for Writ of Habeas

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

challenges a state court (Duval County) conviction for escape. Hughlon raises

1 The record reflects that Hughlon has several aliases, including Bernard

Richardson.

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

six grounds for relief. See Petition at 5-17.3 Respondents initially moved to

dismiss the Petition as untimely. See Doc. 13. The Court denied the motion to

dismiss and directed Respondents to file a response to the merits. See Doc. 30.

Thereafter, Respondents filed a response in opposition to the Petition. See

Response to Petition for Writ of Habeas Corpus (Response; Doc. 31).4 Hughlon

filed a reply. See Reply to State Response and is in Good Faith also in

Compliance with 2254 (Reply; Doc. 41). Also, before the Court is Hughlon’s

Motion to Compel (Doc. 42). The Petition and Motion to Compel are ripe for

review.

II. Relevant Procedural History

On May 18, 2009, the State of Florida (State) charged Hughlon by way

of amended information with two counts of sexual battery (counts one and

four), three counts of lewd or lascivious molestation (counts two, three, and

five), lewd or lascivious exhibition (count six), child abuse (count seven), and

escape (count eight). Resp. Ex. 3 at 36-37, 49-50. On September 21, 2010,

Hughlon proceeded to trial on count eight only and a jury found him guilty of

escape. Resp. Ex. 4 at 26. On December 3, 2010, the circuit court adjudicated

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

by the Court’s electronic docketing system.

4 Respondents represent that they are relying on the exhibits attached

to their motion to dismiss, which the Court will cite in this Order as “Resp.

Ex.”

Hughlon as a habitual felony offender (HFO) and sentenced him as to count

eight to a term of incarceration of thirty years in prison. Id. at 92-95.

Hughlon appealed his conviction and sentence as to count eight. Id. at

100. In his initial brief, Hughlon argued that the trial court: (1) refused to

conduct a timely Nelson5 hearing; (2) refused to instruct the jury on a lesser

included offense; and (3) held Hughlon in contempt without following the

proper procedure. Resp. Ex. 14. The State filed an answer brief. Resp. Ex. 15.

On June 26, 2012, Florida’s First District Court of Appeal (First DCA) affirmed

the conviction and sentence without a written opinion, Resp. Ex. 16, and issued

the mandate on July 12, 2012, Resp. Ex. 17.

Hughlon filed a pro se motion to correct an illegal sentence pursuant

to Florida Rule of Criminal Procedure 3.800(a) (3.800(a) Motion). Resp. Ex. 20

at 1-7. In the Rule 3.800(a) Motion, Hughlon argued his sentence exceeded the

statutory maximum, the trial court erred in setting aside his binding plea

agreement, and the trial court erroneously adjudicated him as an HFO. Id. The

postconviction court denied relief, id. at 9-15, and the First DCA affirmed,

Resp. Ex. 23.

Hughlon next collaterally attacked his conviction and sentence via a

motion for postconviction relief pursuant to Florida Rule of Criminal Procedure

5 Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

3.850 (Rule 3.850 Motion), in which he raised thirty grounds for relief. Resp.

Ex. 32 at 1-27. Following an order striking several grounds with leave to

amend, Hughlon filed a supplement to his motion. Id. at 33-43. The

postconviction court denied relief, id. at 58-87, and the First DCA affirmed the

denial of relief, Resp. Ex. 37.

III. One-Year Limitations Period

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

Doc. 30.

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 [Hughlon’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.’”[6] 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)).

6 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).

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

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

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

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

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

it was made”).

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

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

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

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

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

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

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

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

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

U.S.C. § 2254(d).

B. 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

Hughlon argues that his counsel was ineffective for failing to object and

move to strike an unnamed juror. Petition at 5-6. According to Hughlon, the

juror saw Hughlon in his prison garb with shackles while Hughlon was being

transported to the courtroom. Id. Hughlon avers that this tainted the juror and

potentially the other jurors. Id. Additionally, Hughlon asserts that he saw the

same juror have a discussion with the prosecutor assigned to his case during

which he observed “positive body language/laughter.” Id. at 5. Although

Hughlon admits he does not know the content of the conversation, he contends

that the conversation shows that “the jury members bonded with, and favored

the State Attorney.” Id. at 6.

Hughlon raised a similar claim in state court as ground two of his Rule

3.850 Motion. Resp. Ex. 32 at 6-7. In denying relief on this claim, the

postconviction court explained:

At the post-trial hearing held October 6, 2010,

Defendant told the trial court why he wanted to file a

pro se arrest of judgment: “The reason why I filed that

motion right there was because, when I was being

escorted by the officers to here, to get ready for trial,

the juror was sitting out there in the hallway . . . And

I don’t feel like that was a fair trial.” He claimed that

he had related this allegation to his attorney. The

Court questioned defense counsel as follows:

THE COURT: Now, . . . did [Defendant]

say anything to you about seeing someone

talking to one of the jurors . . . ?

[DEFENSE COUNSEL]: He said that one

of the jurors saw him, when he was being

escorted . . . in his handcuffs. I didn’t see

how that would prejudice the jury. I’ve had

trial with handcuffs and shackles, and

they have been found not guilty. So, I don’t

see anything prejudicial about that.

The Court found that counsel was not ineffective

in failing to seek a remedy due to a juror allegedly

seeing Defendant in restraints.

The above exchange shows that the Court has

already addressed the claim in Ground Two during the

October 6, 2010 hearing and found it to be without

merit. Defendant raised this issue on direct appeal,

and the First District implicitly found it to be without

merit. Issues that could have been, should have been,

or were raised on direct appeal may not be raised in a

motion for postconviction relief. Zeigler v. State, 452

So. 2d 537 (Fla. 1984). Proceedings under Rule 3.850

are not to be used a second appeal. Medina v. State,

573 So. 2d 293 (Fla. 1990). The Court therefore finds

that the claim in Ground Two is procedurally barred.

Id. at 62-63 (record citations omitted). Without writing a written opinion, the

First DCA affirmed the denial of relief. Resp. Ex. 37.

To the extent that the First DCA decided the claim on the merits,7 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, Hughlon is not entitled to relief

on the basis of this claim.

Given the facts of this case, there is no reasonable probability a single

juror’s brief viewing of Hughlon handcuffed outside of the courtroom or the

prosecutor’s alleged conversation with a juror changed the outcome of the trial.

The record reflects that the State presented two witnesses, Detectives Futch

and Henson. Futch testified that he arrested Hughlon on unrelated charges

and was walking him from the police station to the jail to be processed. Resp.

Ex. 6 at 29-39. Inside the sally port of the jail, Futch was filling out paperwork

when, out of the corner of his eye, he observed Hughlon run out of the sally

port in the direction of the employee parking lot. Id. at 38-40. Futch yelled out

7 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.

to the other officers in the sally port to stop Hughlon, and Detective Henson

and Futch gave chase. Id. at 40-41, 53-57. After a chase over a 100-yard span,

Henson deployed his taser and apprehended Hughlon, who was then taken

back into custody without further issue. Id. at 40-41, 57-61. In light of the

unrebutted testimony, identity was not an issue at trial. As such, the State

presented substantial evidence of Hughlon’s guilty. Accordingly, Hughlon has

failed to demonstrate prejudice. See Clark v. Comm’r, Alabama Dep’t of Corr.,

988 F.3d 1326, 1333 (11th Cir. 2021) (holding that where strong evidence of

guilt was present, petitioner could not demonstrate prejudice of two jurors

observing him in shackles during trial); see also Barber v. Dunn, No. 5:16-CV-

00473-RDP, 2019 WL 1098486, at *53 (N.D. Ala. Mar. 8, 2019) (holding a

juror’s brief exposure to a shackled defendant outside of the courtroom did not

establish a violation under the Fifth or Fourteenth Amendment). Hughlon is

not entitled to relief on the claim in Ground One.

B. Grounds Two and Three

As Ground Two, Hughlon contends that the trial court erred “by illegally

voiding a legal and binding contract/Defendant’s eighteen (18) month plea

agreement[.]” Petition at 7. Hughlon maintains that he entered into a

negotiated plea agreement that the trial court accepted that disposed of his

escape charge along with the remaining counts. Id. at 7-9. However, he asserts

that he was recalled into court shortly after entering the negotiated plea,

where a different defense attorney and prosecutor were present. Id. At this

hearing, the prosecutor presented a fifteen-year plea deal for the escape

charge, which Hughlon refused to sign because he believed he had already

entered into a binding plea agreement. Id. As a result of Hughlon’s decision to

decline the fifteen-year plea, he proceeded to trial, was found guilty, and

received a thirty-year sentence as an HFO. Id. Hughlon maintains the thirty-

year sentence was unlawful and constituted double jeopardy. Id. In Ground

Three, Hughlon argues his counsel was ineffective for failing to object to the

trial court’s failure to uphold the alleged original plea agreement and argue

that the sentence imposed amounted to a double jeopardy violation. Id. at 10-

11.

Hughlon raised similar claims in his Rule 3.850 Motion. Resp. Ex. 32 at

7-9. Regarding Hughlon’s double jeopardy claim, the postconviction court

wrote the following:

The Court has carefully reviewed the record in this

case and has determined that there was only one

pretrial hearing in August of 2008, which was held on

August 7. The transcript of that hearing shows that

the only mention of a plea offer that occurred during

the hearing was a comment made by defense counsel

at the beginning of the hearing: “Judge, [Defendant]

tendered a defense offer to the State, which was

rejected today.” The Court has also reviewed all of the

transcripts of the other pretrial hearings that are part

of the record in this case and has found no indication

that any plea agreement was ever reached, or even

seriously discussed. Because the record refutes the

factual allegations contained in Ground Four of

Defendant’s motion, the Court finds he is not entitled

to relief.

Id. at 64 (record citations omitted). As to Hughlon’s ineffective assistance of

counsel claim, the postconviction court ruled:

As explained in Ground Four supra, the transcript of

the August 7, 2008 pretrial hearing shows that the

only mention of a plea offer that occurred during the

hearing was a comment made by defense counsel at

the beginning of the hearing: “Judge, [Defendant]

tendered a defense offer to the State, which was

rejected today.” Because the record refutes the factual

allegations contained in Ground Six of Defendant’s

motion that a plea agreement had been reached, the

Court finds that defense counsel was not ineffective in

failing to make any objection related thereto.

Id. at 65 (record citations omitted). The First DCA affirmed the denial of relief

without issuing a written opinion. Resp. Ex. 37.

To the extent that the First DCA decided the claims on the merits, the

Court will address the claims 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 these claims 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, Hughlon is not entitled to relief

on the basis of these claims.

Under § 2254(e)(1), a state court’s factual determination is presumed

correct unless a petitioner provides clear and convincing evidence rebutting

the factual determination. Nothing in the record provided to the Court

supports Hughlon’s assertion that he resolved his escape charge via a

negotiated guilty plea. Hughlon filed with this Court a motion for clarification

requesting the Court to direct Respondents to produce a transcript from a pre-

trial proceeding held on August 7, 2008, during which he claims to have

entered into the plea deal in question. Doc. 16. In response, Respondents

represented that they could not find any record of an eighteen-month plea deal

or transcripts that reflect the entry of such. Doc. 19. Being as there was no

documents with which to supplement the record, on April 16, 2019, the Court

denied Hughlon’s motion, but afforded Hughlon additional time to procure and

produce these records on his own. Doc. 21. On August 13, 2021, Hughlon

provided supplemental records, which included: (1) a letter Hughlon wrote to

the court reporter requesting copies of the transcripts; (2) a response from the

court reporter indicating that those records were no longer kept because the

proceeding was over ten years old; (3) two docket printouts with reference to a

“disposition” on August 7, 2008; and (4) an unsigned and unverified “affidavit”

that Hughlon purports to be from his brother, who was in the courtroom on

August 7, 2008, and allegedly corroborates Hughlon’s version of events. Doc.

34.

The first docket sheet that Hughlon provides, Doc. 34 at 3, does not

include the case number or any other identifying information that would

connect that docket to Hughlon’s escape charge, Duval County Case Number

2008-CF-6058. Without more, the Court cannot determine the relevancy of this

record. Moreover, although the document states “DISPOSITION” on August 7,

2008, every date after it reflects pretrial activity, which shows the case was not

disposed of that day.

The second docket sheet, which does include reference to the correct

criminal case number, reflects the following entry on July 24, 2008:

“DISPOSITION 08/07/2008 09:00 - 3 330 E BAY ST (CIRCUIT).”8 Id. at 4.

However, the docket entries on August 7, 2008, do not reflect any notation

regarding a disposition and only reference the date of the next pretrial

conference. Id. Notably, Hughlon had another criminal case, Duval County

Case Number 2008-CF-1671,9 in which a proceeding was held on August 7,

2008, at 9:57 a.m. During that proceeding, defense counsel represented that

the prosecution had rejected a defense offer and the prosecutor stated that they

wanted to try Hughlon’s escape charge prior to going to trial on the charges in

8 Respondents also provided this same printout of the docket in their

exhibits. Resp. Ex. 3 at 8.

9 The State charged Hughlon with one count of failure to comply with

sexual offender requirements. Resp. Ex. 44 at 8.

Case Number 2008-CF-1671. Doc. 32 at 292-93. Again, this evidence shows

there was no resolution of the escape charge at that time.

As to the “affidavit,” this unsigned and unnotarized document is

insufficient and not credible. Hughlon has not provided clear and convincing

evidence that the postconviction court’s factual determination that he did not

enter a plea pursuant to an eighteen-month plea agreement is incorrect.

Therefore, the Court presumes the postconviction court’s factual determination

that Hughlon did not plead guilty is correct. As Hughlon did not enter a

negotiated guilty plea, his sentence does not violate Double Jeopardy.

Likewise, counsel cannot be ineffective for failing to raise a meritless

challenge. 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.”). Relief on the claims in Grounds Two and

Three are due to be denied.

C. Ground Four

Next, Hughlon asserts that the trial court erred when it failed to give a

jury instruction on the lesser-included offense of resisting arrest without

violence. Petition at 12-13. According to Hughlon, his counsel requested this

instruction, but the trial court denied the request. Id. Hughlon maintains that

the evidence supported the reading of this instruction and, therefore, he was

entitled to have it read to the jury. Id.

During the charge conference, defense counsel requested a jury

instruction for resisting arrest without violence. Resp. Ex. 6 at 74-79. The trial

court denied the request, explaining:

Okay. In this case I don’t find that the elements of the

resisting are set out in the charging document. So, I

don’t believe it would be appropriate to instruct them,

or give them resisting without violence as a lesser

included offense. So, I’m going to deny that request.

Id. at 78-79. Hughlon raised the trial court’s failure to give this instruction on

direct appeal. Resp. Ex. 14. The First DCA affirmed the conviction and

sentence. Resp. Ex. 16.

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, Hughlon is not entitled to relief

on the basis of this claim.

“[I]n non-capital cases . . . the ‘Due Process Clause does not require a

state court to instruct the jury on lesser included offenses.’” Harris v. Crosby,

151 F. App’x 736, 737 (11th Cir. 2005) (citing Perry v. Smith, 810 F.2d 1078,

1080 (11th Cir. 1987)). Accordingly, Hughlon is not entitled to federal habeas

relief on his claim that the trial court erred in failing to give a jury instruction

on resisting arrest without violence. See id. Moreover, under Florida law,

resisting an officer without violence is not a necessarily lesser included offense

of escape. See Applewhite v. State, 874 So. 2d 1276, 1278-79 (Fla. 5th DCA

2004). As such, to read an instruction on resisting an officer without violence,

the information must allege all the statutory elements of the lesser offense and

the evidence at trial must support a guilty verdict on the lesser offense. Id. at

1279. Here, as in Applewhite, the charging document did not allege every

element of resisting an officer without violence. Resp. Ex. 3 at 26. Accordingly,

the trial court did not err in refusing to read the instruction. Based on the

above analysis, the claim for relief in Ground Four is due to be denied.

D. Ground Five

Hughlon maintains that his trial counsel was deficient for failing to

object to improper comments during the State’s closing arguments. Petition at

14-15. According to Hughlon, on three occasions the prosecutor made

comments that the evidence did not support. Id. First, he contends that the

prosecutor accused defense counsel of arguing that there was no evidence to

support the case against Hughlon. Id. at 14. Second, the prosecutor incorrectly

“stated that the sally port area of the jailhouse was secured which conflicted

with Detective Futch’s testimony stating that the bay doors were opened all

the way.” Id. Third, the prosecutor stated there were no surveillance cameras,

despite testimony from law enforcement that security cameras were present at

the sally port and in the jailhouse. Id. Hughlon maintains these comments

misled the jury. Id.

In state court, Hughlon raised this claim as grounds fifteen, twenty, and

twenty-two of his Rule 3.850 Motion Resp. Ex. 32 at 15-16, 18-20. The

postconviction court denied relief, writing:

Detective Futch testified that during his deposition in

this case, he learned that there were cameras in the

sally port area. Detective Henson also testified that

there were cameras in the sally port area.

The prosecutor made the following statement

during his closing argument:

Defense counsel mentioned that you have

some video. Detective Futch testified that

he didn’t know that there was a video

inside the pretrial detention facility. But

most of this defendant’s action took place

outside. He ran outside. So, there would

have been no video in the area to collect

what he was doing outside.

. . . .

The Court finds that the prosecutor’s comments

in closing accurately reflected the testimony presented

at trial, and therefore there was no good faith basis

upon which defense counsel could have objected.

Therefore, even if counsel had objected to the

prosecutor’s closing argument, the objection would

have been overruled. Defense counsel cannot be

deemed ineffective for failing to make an objection that

has no merit. See Card v. Dugger, 911 F.2d 1494, 1520

(11th Cir. 1990). As such, the Court finds that

Defendant is unable to meet either the deficient

performance or the prejudice prong of the Strickland

test, [sic] and this claim is without merit.

Id. at 71 (record citations omitted).

Defense counsel made the following comments during

her closing argument:

[DEFENSE COUNSEL]: [T]here’s no

evidence presented to you, other than

Detective Futch and Detective Henson,

that says our client left the sally port that

day, went four lengths of this courtroom,

and fell down in some bushes.

* * *

[DEFENSE COUNSEL]: [T]here are no

bushes there. So, what bushes did he fall

into. If they took it so seriously, somebody

who escaped, they could have photograph

[sic] of these bushes, but today they are

not here. The reason why, [Defendant]

never fell into any bushes, because he

never escaped.

* * *

[DEFENSE COUNSEL]: Another thing

we can talk about is the lack of evidence.

And since we’re talking about this video,

there’s no video. There’s no video of

everything that took place that day in the

sally port area. . . . If somebody committed

an escape at the Jacksonville Sheriff’s,

right there in their facilities, they should

have the video. There’s nothing that shows

that our client ran, because he did not run.

* * *

[DEFENSE COUNSEL]: [T]hey know he

did not escape. And there’s been no

evidence that’s been presented to you

today, that even an EMT was called out,

nothing. Nothing that shows he was tased,

nobody testified that an EMT was called

out today, because [Defendant] did not

escape.

* * *

[DEFENSE COUNSEL]: [I]t didn’t

happen. There’s nothing that they can

show you that says [Defendant] escaped,

other than what those two people said to

you today. . . . We don’t have a video . . .

In response, the prosecutor made the following

argument during his rebuttal closing:

[PROSECUTOR]: Let’s talk about what

the defense is arguing. First, [defense

counsel] stated there was no evidence.

Now, the Judge will explain to you, . . .

testimony is evidence. Testimony that

comes from the stand is evidence for you

to consider. And what did you hear. You

heard from Detective Henson and

Detective Futch about this defendant’s

actions. Their testimony is evidence, and

the Judge will tell you to consider it as

such.

* * *

[PROSECUTOR]: And the Judge will tell

you, the evidence that you can consider is

testimony from . . . the witness chair.

* * *

[PROSECUTOR]: Defense counsel kept

saying there was no evidence, no evidence,

no evidence. Testimony is evidence.

. . . .

The Court finds that the prosecutor’s comments

were a fair rebuttal to defense counsel’s own closing

argument and were therefore proper. As such, any

objection to the prosecutor’s argument would have

been overruled. Because Defendant is unable to meet

either the deficient performance or the prejudice prong

of the Strickland test, he is not entitled to relief as to

Ground 20.

Id. at 73-74 (record citations omitted).

Detective Futch testified that after Defendant was

handcuffed, he was escorted to the pretrial detention

facility by himself and another detective. Once the lock

was activated at the door of the sally port, the other

detective left. Detective Futch testified that there were

two large aluminum rollup doors on either end of the

sally port to allow cars to drive through, and one of

them was open at the time. Defendant remained

handcuffed behind his back as he waited in line to be

processed into the jail.

During his initial closing the prosecutor stated,

“And you learned today that a sally port is a secure

area right before the individual are taken into the

pretrial detention facility.” “The defendant . . . was in

the sally port of this detention facility, clearly secure.

Secure by two metal doors on each side, that are raised

only when cars are going in or out of the facility.”

Defense counsel did not object to these statements.

. . . .

The Court finds that the prosecutor’s statements

did not misstate the evidence and were fair comments

on the testimony presented at trial. As such, if counsel

had objected to the comments, the objection would

have been overruled. Because Defendant is unable to

meet either the deficient performance or the prejudice

prong of the Strickland test, the Court finds he is not

entitled to relief as to this claim.

Id. at 75-76 (record citations omitted). Without issuing a written opinion, the