Williams v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

GEORGE WILLIAMS, IV,

Petitioner,

v. Case No. 3:18-cv-1228-TJC-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner, an inmate of the Florida penal system, is proceeding on a pro

se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1). He

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

degree murder and burglary armed with explosives or a dangerous weapon. Id.

at 1. He is serving life imprisonment. Id. Respondents filed a Response (Doc.

12) with exhibits (Docs. 12-1 to 12-12; “Resp. Ex.”). Petitioner filed a Reply (Doc.

14). This case is ripe for review.

II. Governing Legal Principles

A. Standard of Review

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

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

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

2016). “‘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)).

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

decision, if any, that adjudicated the petitioner’s claims 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 an 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 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. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on different

grounds than the lower state court’s decision, such as

alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the

record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a

federal court cannot grant habeas relief unless the state court’s adjudication of

the claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” or “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)(1),

(2). A state court’s factual findings are “presumed to be correct” unless rebutted

“by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that

state-court decisions be given the benefit of the doubt.”

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

quotation marks omitted). “A state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s

decision.” Richter, 562 U.S. at 101 (internal quotation

marks omitted). “It bears repeating that even a strong

case for relief does not mean the state court’s contrary

conclusion was unreasonable.” Id. [at 102] (citing

Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The

Supreme Court has repeatedly instructed lower federal

courts that an unreasonable application of law requires

more than mere error or even clear error. See, e.g.,

Mitchell v. Esparza, 540 U.S. 12, 18 (2003); Lockyer,

538 U.S. at 75 (“The gloss of clear error fails to give

proper deference to state courts by conflating error

(even clear error) with unreasonableness.”); Williams v.

Taylor, 529 U.S. 362, 410 (2000) (“[A]n unreasonable

application of federal law is different from an incorrect

application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal

citations modified).

B. Exhaustion and Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254

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

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

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

every issue raised in his federal petition to the state’s highest court, either on

direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351

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

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

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

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope

v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the

state collateral review process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

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

“‘opportunity to pass upon and correct’ alleged

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

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

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

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

provide the State with the necessary “opportunity,” the

prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

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

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

L.Ed.2d 1 (1999).

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

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

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

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

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[1] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[2] supra, at 84–85, 97 S. Ct.

2497. A state court’s invocation of a procedural rule to

deny a prisoner’s claims precludes federal review of the

claims if, among other requisites, the state procedural

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

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

rule is a nonfederal ground adequate to support the

judgment and the rule is firmly established and

consistently followed. See, e.g., Walker v. Martin, 562

U.S. --, --, 131 S. Ct. 1120, 1127–1128, 179 L.Ed.2d 62

(2011); Beard v. Kindler, 558 U.S. --, --, 130 S. Ct. 612,

617–618, 175 L.Ed.2d 417 (2009). The doctrine barring

procedurally defaulted claims from being heard is not

without exceptions. A prisoner may obtain federal

review of a defaulted claim by showing cause for the

default and prejudice from a violation of federal law.

See Coleman, 501 U.S., at 750, 111 S. Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

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

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

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

1144, 1157 (11th Cir. 2010). For a petitioner to establish cause and prejudice,

the procedural default “must result from some objective

factor external to the defense that prevented [him] from

raising the claim and which cannot be fairly

attributable to his own conduct.” McCoy v. Newsome,

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

477 U.S. at 488, 106 S. Ct. 2639).[3] Under the prejudice

prong, [a petitioner] must show that “the errors at trial

actually and substantially disadvantaged his defense

so that he was denied fundamental fairness.” Id. at

1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).

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

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

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

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

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:

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

remains yet another avenue for him to receive

consideration on the merits of his procedurally

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

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.” Carrier,

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

exceedingly narrow in scope,” however, and requires

proof of actual innocence, not just legal innocence.

Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001).

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

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

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

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

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

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

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

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

U.S. at 324.

C. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective

assistance of counsel. That right is denied when a defense counsel’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); Strickland v. Washington,

466 U.S. 668, 687 (1984)). Courts employ a two-part test when reviewing

ineffective assistance of counsel claims. See Strickland, 466 U.S. at 687.

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” 466 U.S. at 688. 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. 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.

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. It is not enough

“to show that the errors had some conceivable effect on

the outcome of the proceeding.” Id. at 693. 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.

Richter, 562 U.S. at 104 (internal citations modified).

There is no “iron-clad rule requiring a court to tackle one prong of the

Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir.

2010). Both prongs of the two-part Strickland test must be satisfied to show a

Sixth Amendment violation; thus, “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)). “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 afforded great

deference.

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

a most deferential one.” Richter, 562 U.S. at 105. 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 (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, 562 U.S. at 105.

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

citations modified). 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).

III. Analysis

A. Ground One

Petitioner argues that his trial counsel was ineffective for failing to object

after one of the jurors responded, “Yes, with grave reservations,” when the jury

was being polled about its verdict. Doc. 1 at 5. In his Reply, Petitioner

additionally argues that the trial court erred by not “investigating” or “inquiring

further” into the juror’s response. Doc. 14 at 1-3. Respondents contend that

Petitioner’s ineffective assistance of counsel claim is unexhausted and

otherwise without merit. Doc. 12 at 13-15.4

Petitioner raised the ineffectiveness claim in his Florida Rule of Criminal

Procedure 3.850 motion. The state court denied the claim:

4 Because Petitioner did not raise the trial court error claim until he filed the Reply,

which as discussed below is improper, Respondents did not address it.

At the end of the trial, when the jurors were

polled about whether they agreed with the verdict, the

twelfth juror stated, “yes, with grave reservations.”[5]

The Defendant alleges counsel was ineffective for

failing to ask the Court to inquire further to ascertain

whether the verdict was actually unanimous. Counsel

did raise the issue in a motion for new trial, but the

Court denied the motion, finding counsel’s failure to

make a contemporaneous objection required it to use a

fundamental error analysis. It concluded the error was

not fundamental.

A defendant is constitutionally entitled to a

unanimous verdict. Florida Rule of Criminal

Procedure 3.440 provides that unless disagreement is

expressed by one or more of the jurors, the verdict

shall be entered of record and the jurors discharged

from the cause, but no verdict may be rendered unless

all the trial jurors concur in it. Rule 3.450 provides

that if a juror dissents, the court must direct that the

jury be sent back for further consideration.

At issue here is whether the juror’s remark

about “reservations” constituted disagreement with or

dissent from the verdict. In Brutton v. State, 632 So.

2d 1080 (Fla. 4th DCA 1984), a juror said she agreed

with the verdict but then said, “In my heart I felt that

they were not guilty, but if with them-in reality they

are but-I don’t know how to explain it to you.” The

court erred in coercively questioning her when it

should have declared a mistrial. A juror in Jackson v.

State, 804 So. 2d 357 (Fla. 4th DCA 2001)[,] told the

court the guilty verdict was his, but added, he had

“changed his mind to agree with the rest of them.”

Because this juror indicated “without reservations

that the verdict was not his,” the court in that case

should have sent the jury back to deliberate further.

5 The trial transcript reflects that the juror stated: “It is, with grave reservations.”

Resp. Ex. 6 at 876.

In contrast, the juror in this case expressly told

the Court the verdict was his. He did not disavow it.

He did not assert or even hint he wanted to vote for

acquittal but went along only because the other jurors

had voted to convict or that he was pressured to agree

with them. Expressing a reservation is not the same

as expressing a disagreement or dissent. Counsel was

not ineffective for failing to object to lack of unanimous

verdict where each member of the jury told the Court

he or she had voted to convict.

Resp. Ex. 11 at 8-9 (internal citations omitted).

Petitioner did not appeal the postconviction court’s denial of his Rule

3.850 motion. Therefore, this claim is unexhausted and procedurally barred,

because Petitioner did not afford the state courts one full round of review prior

to filing the Petition. See Nieves v. Sec’y, Fla. Dep’t of Corr., 770 F. App’x 520,

521 (11th Cir. 2019) (noting that “[i]n Florida, exhaustion usually requires not

only the filing of a [Rule] 3.850 motion, but an appeal from its denial”); see, e.g.,

Hill v. Sec’y, Fla. Dep’t of Corr., No. 19-81215-CV-ALTMAN, 2020 WL 5217186,

at *4 (S.D. Fla. Aug. 6, 2020) report and recomm. adopted, 2020 WL 5216526

(S.D. Fla. Sept. 1, 2020). In an attempt to show cause to excuse his procedural

default, Petitioner argues that he “had an inadequate law clerk that misle[]d

[him] and said [he] didn’t have to file [an] appeal to [his] 3.850 and go to the

next level,” and that he is “not well versed on the law and had to depend on the

guidance of the law clerk.” Doc. 1 at 9. However, Petitioner’s “ignorance of the

law as a pro se litigant” and his reliance on mistaken advice from a prison law

clerk do not constitute cause to excuse the procedural default. See Francis v.

Sec’y, Dep’t of Corr., No. 8:15-cv-2205-T-36AAS, 2018 WL 3093481, at *4 (M.D.

Fla. June 22, 2018) (citing Tower v. Phillips, 7 F.3d 206, 211 (11th Cir. 1993)

(“[I]gnorance of available post-conviction remedies cannot excuse a procedural

default”); McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992) (neither a

lack of legal education nor pro se status constituted cause for petitioner's

procedural default); Harmon v. Barton, 894 F.2d 1268, 1275-76 (11th Cir. 1990)

(a petitioner’s pro se status was insufficient to establish cause); Whiddon v.

Dugger, 894 F.2d 1266, 1267 (11th Cir. 1990) (misadvice from inmate law clerks

during collateral proceedings does not establish cause)). Thus, Petitioner has

failed to show cause to excuse his procedural default. He also has not alleged

facts justifying application of the fundamental miscarriage of justice exception

to the procedural bar.

Regardless, the claim is without merit. The juror affirmatively

acknowledged that the verdict was his, but that he had “grave reservations.”

He did not disavow the verdict, state that he disagreed with the verdict, or state

that he did not participate in the decision to reach that verdict. As the

postconviction court reasoned: “Expressing a reservation is not the same as

expressing a disagreement or dissent.” Cf. United States v. Jefferson, 258 F.3d

405, 411 (5th Cir. 2001) (“A juror may have reservations and still find the

evidence presented to be sufficient to meet the burden established by the

standard of beyond a reasonable doubt.”). Also, even assuming deficient

performance, Petitioner has not shown prejudice. Petitioner has failed to show

a reasonable probability that the outcome of the trial would have been different

had counsel objected. Petitioner is not entitled to federal habeas relief on this

claim.

Insofar as Petitioner raises a claim of trial court error for the first time in

his Reply, the claim is not properly raised. See Cooper v. Sec’y, Dep’t of Corr.,

No. 8:08-cv-5-T-27MAP, 2011 WL 795812, at *7 (M.D. Fla. Mar. 1, 2011) (“In

sum, Petitioner did not raise this claim in his petition, did not seek leave to

amend to add this claim, and is barred from raising it in his Reply, since

Respondent has not been afforded an opportunity to address it.”). Regardless,

this trial court error claim is also unexhausted, as Petitioner did not raise it on

direct appeal or in any postconviction proceeding. He has shown neither cause

nor prejudice to excuse the procedural bar, nor has he shown a fundamental

miscarriage of justice would result if the Court did not consider the claim on the

merits.

Accordingly, Ground One is due to be denied.

B. Ground Two

Petitioner claims that his trial counsel was ineffective for failing to object

after the trial court “gave [the jury] a deadline” to reach a verdict. Doc. 1 at 12.

He contends that “[a]t the end of the trial[,] the jurors w[ere] having [] difficulty

reaching a verdict.” Id. He argues that the trial court deviated from the

“standard instruction for [a] deadlock[ed] jury.” Id.

Petitioner acknowledges that he did not raise this claim “in any of [his]

motions,” because he “just discovered this ground while going through [his]

paperwork.” Id. In his Reply, he contends that this Court should overlook his

procedural default because the claim has merit and is substantial. Doc. 14 at 4.

Respondents argue that this claim is unexhausted and procedurally barred. The

Court agrees.

Petitioner’s reasoning for failing to raise the claim in state court—that he

just discovered it—is insufficient to excuse the procedural default. Petitioner

was present in the courtroom during the trial when the facts supporting this

claim occurred. He has shown neither cause nor prejudice to excuse the default.

And Petitioner has not shown a fundamental miscarriage of justice will result

if the claim is not adjudicated on the merits. Nor is this claim a “substantial”

one.

While the jury was deliberating, the following occurred outside of their

presence:

THE COURT: The defendant is present.

It’s now 9:40 and the jury’s still deliberating. So

I’m going to bring them out and give them two options,

to either stay for another 20 or 30 minutes and see if

they can reach a verdict or come back tomorrow

morning at five minutes till 10:00. And we’ll send them

out. We’ll send them back to the jury room to continue

their deliberations a few minutes before 10:00, and we

can do our morning calendar. Do both sides agree?

[DEFENSE COUNSEL]: Yes, Your Honor.

[THE STATE]: Yes, Your Honor.

Resp. Ex. 6 at 32-33. The Court then had the jury brought into the courtroom

and the following discussion occurred:

THE COURT: Y’all can just stand together, if

you’d like.

All right. All 12 members of the jury are back in

the courtroom now.

And it is getting late. I don’t want to keep us

here any later than a few minutes after 10:00 o’clock,

so I’m going to give y’all two options. If you would like

to stay for another 20 or 30 minutes at the most and

see if you can arrive upon verdicts, then that would be

fine. But if you feel like you’re not going to be able to

do that within the next 20 or 30 minutes, then we

could just go ahead and call it a night for tonight, and

what we’ll do is come back tomorrow morning at about

five minutes till 10:00. I’ll send you back into the

jurors’ room to begin your deliberations.

So do y’all want to go back in there [and] talk

about it?

JUROR: We’ll stay.

THE COURT: You’ll stay. Okay. So if you

haven’t - - I don’t want to rush you-all. I want you

to take as long as you need today, tomorrow and

any other time we have to use. But I will tell you,

if at 10:00 - - after 10:00, if you have not arrived upon

verdicts, then I’m going to call you out and send you

home, and we’re going to start back up tomorrow

morning at five minutes to 10:00 a.m.

Please step back. We’ll patiently wait until ten

after 10:00.

Id. at 33-34 (emphasis added). The jury resumed their deliberations at 9:42 p.m.

Id. at 34. The trial judge asked both sides whether they wanted to put anything

on the record before they recessed again, and both sides answered in the

negative. Id. at 34-35. Thus, the court went into recess. Id. at 35. Around 10:10

p.m., the jury returned its verdict. Id.

The trial court did not coerce, threaten, or pressure the jury into reaching

a verdict. Rather, given the late hour, the trial court gave the jury the option of

continuing for 20 to 30 minutes longer or coming back the next day. The trial

court specifically advised the jury that it was not rushing them to conclude their

deliberations, but simply did not want to keep them there much later. There

was no basis on which Petitioner’s counsel could object.

Petitioner argues that the jury “was having [] difficulty reaching a

verdict,” and the trial court did not give them a proper Allen6 charge. Doc. 1 at

12. The transcript refutes Petitioner’s assertion. Approximately one hour before

6 Allen v. United States, 164 U.S. 492 (1896). An Allen charge may be “given when it

appears that the jury is having difficulty reaching a verdict.” Blanding v. State, 298

So. 3d 712, 714 (Fla. 1st DCA 2020). “‘In giving an Allen charge, the trial court must

avoid: (1) coercive deadlines, (2) threats of marathon deliberations, (3) pressure for the

surrender of conscientiously held minority views, and (4) any implication of a false

duty to decide.’” Id. (quoting Gahley v. State, 567 So. 2d 456, 459 (Fla. 1st DCA 1990)).

the trial court gave the jury the option of continuing or going home for the

evening, the jury had submitted the following question to the trial court: “If we

decide armed burglary, can we also decide second-degree murder or only first

degree?” Resp. Ex. 6 at 31. This question does not imply the jury was deadlocked

or otherwise having difficulty reaching a verdict. Petitioner’s trial counsel was

not deficient for failing to object to the trial court’s options given to the jury, and

Petitioner has not shown resulting prejudice. And to the extent Petitioner

argues counsel was ineffective for failing to request an Allen charge be given,

he has shown neither ineffectiveness nor resulting prejudice.

Therefore, Ground Two is due to be denied.

Accordingly, it is

ORDERED:

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

WITH PREJUDICE.

2. The Clerk of Court shall enter judgment dismissing this case with

prejudice, terminate any pending motions, and close the file.

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

certificate of appealability. Because the Court has determined that a certificate

of appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.’

DONE AND ORDERED at Jacksonville, Florida, this 20% day of

January, 2022.

Ww. TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 1/11

C:

George Williams, IV, #J52586

Counsel of Record

7 The Court should issue a certificate of appealability only if the Petitioner makes “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

make this substantial showing, Petitioner “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong,’ Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)

(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration

of the record as a whole, the Court will deny a certificate of appealability.

19