Early v. Inch (Bradford County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

STEPHEN LAMONT EARLY,

Petitioner,

v. Case No. 3:19-cv-735-MMH-JBT

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Stephen Early, an inmate of the Florida penal system,

initiated this action in the United States District Court Northern District of

Florida on June 10, 2019,1 by filing a Petition for Writ of Habeas Corpus under

28 U.S.C. § 2254 (Petition; Doc. 1). The Northern District transferred the

action to the Middle District on June 17, 2019. Doc. 3. In the Petition, Early

challenges a 2014 state court (Bradford County, Florida) judgment of

conviction for second-degree murder. Early asserts four grounds as his basis

for seeking relief. See Petition at 5-11.2 Respondents oppose the Petition. See

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

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

by the Court’s electronic docketing system.

Response to Federal Habeas Petition (Response; Doc. 11) with exhibits (Resp.

Ex.). Early filed a brief in reply. See Reply to State’s Response (Reply; Doc. 16).

This case is ripe for review.

II. Relevant Procedural History

On October 23, 2014, a jury convicted Early of second-degree murder,

with a special finding that Early committed the offense with a weapon. Resp.

Ex. 1. The trial court sentenced Early to a term of incarceration of twenty years

and six months in prison. Id. Early appealed his conviction and sentence to

Florida’s First District Court of Appeal (First DCA). Resp. Ex. 2. In his initial

brief, Early argued that the trial court erred when it: (1) denied his motion to

dismiss; (2) denied his motion for judgment of acquittal; (3) failed to instruct

the jury that Early could not be found guilty if the killing was justifiable or

excusable; and (4) failed to conduct a Nelson3 inquiry after Early made an

unequivocal request for a hearing. Resp. Ex. 3. The State filed an answer brief,

Resp. Ex. 4, and Early filed a reply brief, Resp. Ex. 5. On March 3, 2017, the

First DCA, in a written opinion, affirmed Early’s conviction and sentence.

Resp. Ex. 6. The First DCA issued the mandate on March 21, 2017. Resp. Ex.

7.

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

Early filed a pro se motion to modify his sentence under Florida Rule of

Criminal Procedure 3.800(c) on April 26, 2017. Resp. Ex. 8. On May 20, 2017,

the postconviction court denied relief. Id. The following month, on June 30,

2017, Early filed a pro se motion for postconviction relief under Florida Rule of

Criminal Procedure 3.850 (Rule 3.850 Motion). Resp. Ex. 9. In the Rule 3.850

Motion, Early alleged his counsel was ineffective for failing to: (1) properly

preserve a sufficiency of the evidence claim for appellate review; (2) move to

suppress his statements to police; and (3) request a “heat of passion” jury

instruction. Id. The postconviction court initially denied relief on grounds one

and three but ordered the State to respond to ground two. Resp. Ex. 10.

Thereafter, the postconviction court denied relief on ground two. Resp. Ex. 15.

On February 20, 2019, the First DCA per curiam affirmed the denial of relief

without a written opinion, Resp. Ex. 18, and issued the mandate on March 20,

2019, Resp. Ex. 19.

III. One-Year Limitations Period

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

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

be conducted.

V. Governing Legal Principles

A. Standard of Review

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

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

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

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

that federal habeas relief functions as a guard against extreme malfunctions

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

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

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

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

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

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

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

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

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

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

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

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be

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

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

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

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

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

relitigation of the claim unless the state court’s decision (1) “was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States;” or (2) “was based on

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

in the State court proceeding.” 28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98.

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

§ 2254 as follows:

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

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

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

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

“contrary to” clause and an “unreasonable application”

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

“if the state court arrives at a conclusion opposite to

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

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

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

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court's decisions but unreasonably applies

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

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

claims of state courts’ erroneous factual

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

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

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

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

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

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

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

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

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

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

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

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

determination is not unreasonable merely because the

federal habeas court would have reached a different

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

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

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

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

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

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

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

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

it was made”).

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

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

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

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

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

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

4 The Eleventh Circuit has described the interaction between §

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

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

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

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

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

U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

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

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

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

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

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

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

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

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

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

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

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

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

“‘“opportunity to pass upon and correct” alleged

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

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

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

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

provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

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

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

L.Ed.2d 1 (1999).

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

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

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

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

procedural default as follows:

Federal habeas courts reviewing the constitutionality

of a state prisoner’s conviction and sentence are guided

by rules designed to ensure that state-court judgments

are accorded the finality and respect necessary to

preserve the integrity of legal proceedings within our

system of federalism. These rules include the doctrine

of procedural default, under which a federal court will

not review the merits of claims, including

constitutional claims, that a state court declined to

hear because the prisoner failed to abide by a state

procedural rule. See, e.g., Coleman,[5] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[6] supra, at 84–85, 97 S.

Ct. 2497. A state court’s invocation of a procedural

rule to deny a prisoner’s claims precludes federal

review of the claims if, among other requisites, the

state procedural rule is a nonfederal ground adequate

to support the judgment and the rule is firmly

established and consistently followed. See, e.g.,

Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–

1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558

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

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

U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417

(2009). The doctrine barring procedurally defaulted

claims from being heard is not without exceptions. A

prisoner may obtain federal review of a defaulted

claim by showing cause for the default and prejudice

from a violation of federal law. See Coleman, 501 U.S.,

at 750, 111 S. Ct. 2546.

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

be excused under certain circumstances. Notwithstanding that a claim has

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

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

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

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

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

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

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

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

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

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

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

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

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

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

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

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

there remains yet another avenue for him to receive

consideration on the merits of his procedurally

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

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

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

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

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

(11th Cir. 2001).

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

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

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

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

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

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

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

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

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

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

performance falls below an objective standard of reasonableness and thereby

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

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

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

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

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

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

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

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

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

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

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.

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

conceivable effect on the outcome of the proceeding.”

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

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

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

2052.

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

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

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

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

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

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

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

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

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

697.

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

deference.

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

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

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

application of Strickland was unreasonable under §

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

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

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

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

believes the state court’s determination under the

Strickland standard was incorrect but whether that

determination was unreasonable - a substantially

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

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

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

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

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

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

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

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

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

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

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

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

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

VI. Findings of Fact and Conclusions of Law

A. Ground One8

In Ground One, Early alleges that his trial counsel was deficient for

failing to move to suppress the statements he made to police. Petition at 5-6.

Early maintains that the Miranda warnings the interrogating officer gave were

deficient because the officer did not advise him that he could stop answering

questions at any time to talk to an attorney. Id. He also asserts that his waiver

of rights did not comply with Florida Rule of Criminal Procedure 3.111(d)

because only one witness attested to the waiver of his rights. Id. at 6.

8 Early divides Ground One of the Petition into three subgrounds, which

the Court will treat as separate grounds for relief in this Order.

Early raised a similar claim in state court as ground two of his Rule 3.850

Motion. Resp. Ex. 9 at 8-9. In denying relief, the postconviction court explained:

Ground II of Defendant’s motion for post-conviction

relief was a claim of ineffective assistance of counsel

for failing to challenge the Miranda predicate.

Defendant argues that the Miranda warnings he

received failed to inform him that he had the right to

counsel during questioning. Defendant received

Miranda warnings at the crime scene from a pre-

printed card and read a Miranda warning form at the

station. The Court ordered the State to produce the

warnings, so their sufficiency could be evaluated. The

State complied with the order to show cause and filed

the pre-printed Miranda warning card, with an

attestation that this card had been utilized by the

Starke Police Department since 2008. In addition, the

State filed the Miranda form signed by Defendant at

the police station, and affirms that the form was

provided to defense counsel during discovery in June

2013. Finding that both the pre-printed card and

Miranda form advise of the right to counsel prior to,

and during, questioning, Ground II is raised without

merit.

Resp. Ex. 15 (record citations omitted). The First DCA per curiam affirmed the

denial of relief without a written opinion. Resp. Ex. 18.

To the extent that the First DCA decided this claim on the merits,9 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

9 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.

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, Early is not entitled to relief

on the basis of this claim.

The record reflects that the Starke Police Department customarily used

a LexisNexis two-sided card that listed a suspect’s Miranda warnings. Resp.

Ex. 17. Among the warnings on the card was: “You have the right to consult

with an attorney and have an attorney present during questioning.” Id.

Notably, the State also provided the Miranda waiver form that Early signed.

Id. That form advised Early he had “the right to talk to a lawyer for advice

before being questioned and [he had] the right to have him with [Early] while

being questioned.” Id. It informed Early that if he wanted “to answer questions

now without a lawyer present, [he would] still have the right to stop answering

at any time” and talk to a lawyer. Id. As such, the record refutes this claim.

Regarding Rule 3.111(d), this rule applies to a defendant’s right to waive

counsel and by its own terms is inapplicable to Miranda warnings. Counsel

cannot be deficient for failing to raise a meritless argument. See Diaz v. Sec’y

for the Dep’t of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005) (holding counsel

cannot be ineffective for failing to raise a meritless argument); Bolender v.

Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994) (noting that “it is axiomatic

that the failure to raise nonmeritorious issues does not constitute ineffective

assistance.”). Accordingly, relief on the claim in Ground One is due to be

denied.

B. Ground Two

Early asserts that his trial counsel was ineffective for failing to preserve

a sufficiency of the evidence argument for appellate review via a motion for

judgment of acquittal. Petition at 6-8. According to Early, the State failed to

prove that he committed the murder with a “depraved mind,” an element of

second-degree murder. Id. He maintains that the facts show only that he acted

impulsively and not “with ill will, hatred, spite, or evil intent.” Id. at 7.

Early raised a similar claim in his Rule 3.850 Motion. Resp. Ex. 9 at 5-8.

The postconviction court denied relief, writing:

In order to grant a motion for judgment of acquittal,

the evidence presented at trial must be legally

insufficient to support the elements of the crime. See

Perez v. State, 187 So. 3d 1279, 1281 (Fla. 1st DCA

2016). Defendant has failed to satisfy the prejudice

prong of Strickland. Even if counsel had made a

motion for judgment of acquittal, it is unlikely that

Defendant would have prevailed. Perez, 187 So. 3d at

1281 (“If the evidence, when considered in the light

most favorable to the State, is capable of supporting a

guilty verdict, a motion for judgment of acquittal must

be denied.”).

Defendant claims that the State failed to

present any evidence of a depraved mind, required to

uphold a conviction for second-degree murder.

Defendant argues that his is a case of impulsive

overreaction, and the State’s evidence, at best,

supports a conviction for manslaughter. Second-

degree murder is the “unlawful killing of a human

being, when perpetrated by an act imminently

dangerous to another and evincing a depraved mind

regardless of human life, although without any

premeditated design to effect the death of any

particular individual.” § 782.04, Fla. Stat. (2012). “An

act is imminently dangerous to another and evinces a

‘depraved mind’ if it is an act or series of acts that: (1)

a person of ordinary judgment would know is

reasonably certain to kill or do serious bodily injury to

another; (2) is done from ill will, hatred, spite or an evil

intent; and (3) is of such a nature that the act itself

indicates an indifference to human life.” Dorsey v.

State, 74 So. 3d 521, 524 (Fla. 4th DCA 2011) (citing

Wiley v. State, 60 So. 3d 588, 591 (Fla. 4th DCA 2011)).

Although a jury may reject a defendant’s theory of self-

defense, an impulsive overreaction to an attack or

injury is insufficient to prove the depraved mind

element, which is required to sustain a conviction of

second-degree murder. See Dorsey, 74 So. 3d at 524;

Poole v. State, 30 So. 3d 696, 698-99 (Fla. 2d DCA

2010); McDaniel v. State, 620 So. 2d 1308 (Fla. 4th

DCA 1993).

What distinguishes Defendant’s case from the

impulsive overreaction cases is his multiple,

conflicting stories. In Poole, Dorsey, McDaniel, etc.,

there was no conflicting evidence, which required the

jury to believe the defendants’ version of events;

thereby, the use of deadly force “could only be

explained as an ‘impulsive overreaction’ to an attack.”

Leasure, 105 So. 3d at 17. In the instant case,

Defendant told several versions of the events, putting

his credibility at issue. Further, the State presented

evidence that conflicted with Defendant’s claim that

he was attacked or injured by the victim, and

presented a previous statement from Defendant that

he raised two knives before inflicting the fatal stab to

the chest. “This is not to say malice is . . . limited in

its meaning to hatred, ill will and malevolence; rather,

it denotes a wicked and corrupt disregard of the lives

and safety of others . . . a failure to appreciate social

duty.” Antoine v. State, 138 So. 3d 1064, 1073 (Fla. 4th

DCA 2014) (quoting Larsen v. State, 485 So. 2d 1372,

1374 (Fla. 1st DCA 1986)) (internal quotation

omitted). Thus, Ground I is raised without merit.

Resp. Ex. 15 (record citations omitted). The First DCA per curiam affirmed the

denial of relief without issuing a written opinion. Resp. Ex. 18.

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

Court addresses 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, Early is not entitled to relief

on the basis of this claim.

Early’s claim of prejudice revolves entirely around the failure to preserve

this issue for appeal. However, “there is no clearly established federal law by

the Supreme Court specifically addressing whether the federal court should

examine the prejudice on appeal rather than at trial in a case [where an issue

was raised but not properly preserved].” Carratelli v. Stepp, 382 F. App’x 829,

832 (11th Cir. 2010). Accordingly, the state court’s adjudication of this claim is

not contrary to or an unreasonable application of clearly established federal

law.

To the extent the claim could be construed as asserting prejudice at the

trial level, Early is still not entitled to relief. In Florida, second-degree murder

is defined as “[t]he unlawful killing of a human being, when perpetrated by

any act imminently dangerous to another and evincing a depraved mind

regardless of human life, although without any premeditated design to effect

the death of any particular individual.” § 782.04(2), Fla. Stat. To prove a

depraved mind, the State must produce evidence showing that a defendant

acted with “ill will, hatred, spite, or an evil intent.” Peoples v. State, 251 So. 3d

291, 302 (Fla. 1st DCA 2018).

The record reflects that Early stabbed the victim twice with a knife to

the left lateral chest wall. Resp. Ex. 6. Early gave several accounts of what

occurred, including that the victim stabbed himself, an unknown man stabbed

the victim, and that Early stabbed the victim in self-defense while the victim

punched him. Id. At trial, Early testified that he was in a romantic relationship

with the victim, and they had a history of disputes and Early was getting tired

of the relationship. Id. According to Early, he and the victim got in a dispute

before the incident. Id. Early’s trial testimony maintained that he was acting

in self-defense. Id. However, Early had no injuries. Resp. Ex. 15 at 10. Nor did

the victim have injuries on his fists or hands that would have been consistent

with the victim striking someone. Id. at 12. As the First DCA summarized in

its opinion affirming Early’s conviction and sentence, the evidence supported

a “plausible scenario . . . that [Early] brought the knife to the vehicle, got into

an argument with the victim, and stabbed the victim as he was preparing to

drive away.” Resp. Ex. 6.

This record shows that there was ill-will between Early and the victim.

A reasonable person would understand that stabbing another person would

lead to death or great bodily harm. Thus, Early’s act of stabbing the victim,

coupled with the evidence indicating animosity and ill-will generated from

their deteriorating relationship, support the depraved mind element of a

second-degree murder conviction. Therefore, there was sufficient evidence,

when taken in a light most favorable to the prosecution, to allow the jury to

determine that Early acted with a depraved mind. See Peoples, 251 So. 3d at

303 (noting that appellant’s use of a deadly weapon to stab the victim was an

act “which itself could be sufficient to infer the requisite intent” to support a

second-degree murder conviction). As such, Early cannot demonstrate

prejudice and relief on his claim in Ground Two is due to be denied.

C. Ground Three

Next, Early contends that his trial counsel failed to request a special

“heat of passion” jury instruction. Petition at 8-10. Early maintains that

evidence at trial supported this instruction. Id. He asserts that the evidence

showed he had a complicated relationship with the victim, he and the victim

had previous altercations, the incident was a sudden event, and the victim was

the aggressor. Id. According to Early, had this instruction been read, it would

have negated the “depraved mind” element of second-degree murder. Id.

In the Rule 3.850 Motion, Early raised a similar claim. Resp. Ex. 9 at 10-

13. The postconviction court denied relief, explaining:

In support of his third claim, Defendant argues that

counsel was ineffective for failing to request a heat of

passion jury instruction. “Heat of passion negating the

depraved mind element of second degree murder is a

valid defense in Florida.” Palmore v. State, 838 So. 2d

1222, 1223 (Fla. 1st DCA 2003) (“Although not

constituting excusable homicide, heat of passion under

this theory of defense would reduce second degree

murder to manslaughter if accepted by the jury.”).

“Heat of passion” has been defined as:

A killing in the ‘heat of passion’ occurs

when the state of mind of the slayer is

necessarily different from that when the

killing in [sic] done in self-defense. In the

heat of passion the slayer is oblivious to

his real or apparent situation. Whether he

believes or does not believe that he is in

danger is immaterial; it has no bearing

upon the question. He is intoxicated by his

passion, is impelled by a blind and

reasoning fury to redress his real or

imagined injury, and while in that

condition of frenzy and distraction fires

the fatal shot.

Disney v. State, 72 Fla. 492, 73 So. 598, 601 (1916);

See also Daley v. State, 957 So. 2d 17, 18 (Fla. 4th DCA

2007). The heat of passion instruction is only to be

given “if there is evidence that the defendant acted in

the heat of passion on legally adequate provocation.”

In re Standard Jury Instructions in Criminals Cases -

Report No. 2013-02, 137 So. 3d 995, 1011 (Fla. 2014)

(italics omitted). Defendant has failed to show legally

adequate provocation entitling him to the requested

jury instructions. See Daley v. State, 957 So. 2d at 18

(“Without more, there was no evidence to support the

theory, and counsel was not ineffective for failing to

request the instruction, particularly when the main

defense was that of self-defense”).

Resp. Ex. 10 at 4-5. The First DCA affirmed the denial of relief. Resp. Ex. 18.

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

Court will address it 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, Early is not entitled to relief

on the basis of this claim.

“In order for the defense of heat of passion to be available there must be

‘adequate provocation . . . as might obscure the reason or dominate the volition

of an ordinary reasonable man.’” Paz v. State, 777 So. 2d 983, 984 (Fla. 3d DCA

2000) (quoting Rivers v. State, 75 Fla. 401, 78 So. 343, 345 (1918)). Mere

arguments are insufficient to establish adequate provocation. Reed v. State,

287 So. 3d 606, 609 (Fla. 4th DCA 2019). “‘Passion is the state of mind when it

is powerfully acted on and influenced by something external to itself. It is one

of the emotions of the mind known as anger, rage, sudden resentment, or

terror.’” Taylor v. State, 316 So. 3d 420, 427 (Fla. 1st DCA 2021) (quoting Febre

v. State, 30 So. 2d 367, 369 (Fla. 1947)).

The First DCA summarized Early’s trial testimony in its order affirming

his conviction and sentence:

[Early] and the victim were romantically involved, and

had a history of disputes that sometimes turned

physical but had previously involved only use of bare

hands, no weapons. He considered his partner

possessive and was tiring of the relationship. On the

night in question, the couple were living at a hotel, but

Appellant had been out of town visiting family and

friends, and the victim-apparently-did not like being

left behind.

When he returned to the hotel, Appellant called

the victim to let him know that he was outside.

Appellant went inside to use the bathroom, and the

victim walked outside and got into the driver’s seat of

the car. When Appellant came out, he got in the back

seat of the vehicle. Appellant said he wanted to go back

to his mother’s house, and the victim said he would

take him. When Appellant called his mother and told

her that he was coming home, the victim turned

around in the driver’s seat and began punching

Appellant repeatedly in the head. Appellant leaned

down to try to grab the door latch so he could get out

of the vehicle, and as he felt around, he found a knife

on the floor. According to Appellant, the victim’s

repeated blows prevented him from opening the door.

Appellant was afraid he was going to be seriously

injured. While the victim was still striking him,

Appellant “jabbed” the victim with the knife to stop the

attacks. Because the victim continued hitting him, he

“jabbed” the victim again with the knife; and after

that, the attacks ended. When he saw that the victim

was injured, Appellant called 911.

Resp. Ex. 6. Nothing from this testimony, or from Early’s previous statements

as outlined in the First DCA’s opinion, provide evidence that Early acted in the

heat of passion when he killed the victim. The fact they had a history of

arguments or had an argument that night does not support giving the

instruction. See Reed, 287 So. 3d at 609. Nothing in the record suggests that

there was adequate provocation that would have overtaken Early’s volition to

control his actions. Similarly, Early points to no evidence showing that he was

so overcome with anger, rage, or terror that he then killed the victim. See

Taylor, 316 So. 3d at 427. Also, the record contains no evidence that he lost

control or did not know what he was doing. As such, the evidence would not

have supported reading the instruction. Counsel cannot be deficient for failing

to raise a meritless argument. Therefore, relief on the claim in Ground Three

is due to be denied.

D. Ground Four

Last, Early argues that the cumulative impact of counsel’s deficient

performance led “to a true inconsistent jury verdict” and a manifest injustice.

Petition at 11. As Respondents note, Early failed to raise this issue in state

court. Early, recognizing his failure to exhaust, contends his failure to exhaust

should be excused under Martinez v. Ryan. Petition at 11. Whether or not

Early exhausted this claim, he is not entitled to relief. Where all individual

claims are meritless, the claim of cumulative error is also without merit.

Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). As

explained in greater detail above, each of Early’s claims are meritless. It

follows then, that his claim of cumulative error is likewise without merit.

Accordingly, the claim in Ground Four is due to be denied.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Early seeks issuance of a certificate of appealability, the undersigned

opines that a certificate of appealability is not warranted. The Court should

issue a certificate of appealability only if the petitioner makes “a substantial

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

this substantial showing, Early “must demonstrate that reasonable jurists

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

debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were

‘adequate to deserve encouragement to proceed further,’” Miller-El v. Cockrell,

537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4

(1983)).

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

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

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

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

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

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

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

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

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

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

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

WITH PREJUDICE.

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

and dismissing this case with prejudice.

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

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

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

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

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

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

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 27th day of

January, 2022.

United States District Judge

Jax-8

C: Stephen Lamont Early #G24401

Counsel of record

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