Harris v. Jones (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

TYREE HARRIS,

Petitioner,

v. Case No. 3:18-cv-1393-TJC-PDB

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

attempted second degree murder. He is serving a 30-year term of imprisonment.

Respondents filed a Response (Doc. 8) with exhibits (Docs. 8-1 to 8-3; “Resp.

Ex.”). Petitioner filed a Reply (Doc. 11). 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

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

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

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

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).

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:

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

[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, 592 F.3d at 1163. 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

when the prosecutor referred to Petitioner as a “felon” during opening

statements.4 Petitioner raised this claim in his Florida Rule of Criminal

Procedure 3.850 motion. The state court denied the claim: “The Defendant

alleges that counsel failed to object when he was called a convicted felon in

opening statements by the State. This is directly rebutted by the trial transcript

which shows the state called his co-defendant a convicted felon, not the

Defendant.” Resp. Ex. J at 16. Petitioner appealed, and the First District Court

of Appeal per curiam affirmed the denial of Petitioner’s Rule 3.850 motion

without a written opinion. Resp. Ex. M.

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record and the applicable law, the Court concludes that the state

4 Petitioner appears to concede that this ground has no merit. See Doc. 11 at 1

(“Petitioner is only going to address three issues (issues two, three, and four) . . . and

will concede to the rest.”).

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. Regardless, this claim has no merit. The transcript

shows that the state did not refer to Petitioner as a felon during opening

statements. Thus, Petitioner is not entitled to federal habeas relief on Ground

One.

B. Ground Two

Petitioner argues that his trial counsel was ineffective for failing to

challenge the amended information, “which upgraded Petitioner’s charges from

aggravated battery with a deadly weapon to attempted first degree murder.”

Doc. 1 at 12 (capitalization omitted). Petitioner raised this claim in his Rule

3.850 motion, and the state court denied it:

[T]he Defendant argues counsel was ineffective for

failing to challenge the amended information. This

allegation fails as the Defendant has failed to show

what the challenge could have been, that the challenge

would have been successful or that the State would not

have merely filed another amended information. Thus,

the Defendant has failed to show that there is a

reasonably probability that had counsel acted as the

Defendant suggests he should have that the outcome

would have been any different.

Resp. Ex. J at 16. Petitioner appealed, and the First DCA per curiam affirmed

the denial of Petitioner’s Rule 3.850 motion without a written opinion. Resp.

Ex. M.

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

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. Even assuming the state court’s decision is not

entitled to deference, Petitioner has failed to show a reasonable probability that

the outcome would have been different had counsel challenged the amended

information in the manner Petitioner suggests. Thus, Petitioner is not entitled

to federal habeas relief on Ground Two.

C. Ground Three

Petitioner contends that trial counsel was ineffective for failing to

adequately investigate and prepare for trial with respect to a viable self-defense

strategy and for failing to “honor Petitioner’s desire to testify as to the same

defense.” Doc. 1 at 14 (capitalization omitted). Petitioner disagrees with his

counsel’s trial strategy and he claims that before trial, he requested counsel

canvass the neighborhood for additional witnesses to support Petitioner’s

theory of self-defense (that the victim had a knife). See id. at 14-15; see also

Doc. 11 at 5. He also advised counsel that Keona Richardson, one of the State’s

witnesses, took the knife from the victim’s hands after the shooting. See Doc. 1

at 15. According to Petitioner, after his counsel conducted depositions, “counsel

told [Petitioner] that based on the depositions made by him to state witness

that the state had no case and that he will be O.K.” Id. At trial, counsel allegedly

told Petitioner that “he ran out of time” to conduct further investigation and

“convince[d] Petitioner not to testify as to matter in question” because it would

contradict counsel’s strategy. Id.

In his Rule 3.850 motion, Petitioner argued that his counsel was

ineffective for failing to advise him of a self-defense strategy. Resp. Ex. J at 7-

8. The state court denied the claim:

The Defendant further alleges that his attorney failed

to advise him that self-defense was a defense to his

charge. The record rebuts this argument as even his

own motion states that all the witnesses testified

about an argument between him and the victim.

Further the jury was instructed on the use of

justifiable deadly force.

Resp. Ex. J at 16. Petitioner appealed, and the First District Court of Appeal

per curiam affirmed the denial of Petitioner’s Rule 3.850 motion without a

written opinion. Resp. Ex. M.

In his amended Rule 3.850 motion, Petitioner raised the same claim he

raises in his Petition. In ruling on the amended Rule 3.850 motion, the

postconviction court did not address the claim because it construed it to be the

same claim as raised in the original Rule 3.850 motion. Regardless, this Court

finds the claim has no merit.

There is a strong presumption in favor of competence when evaluating

the performance prong of the Strickland ineffectiveness inquiry. See Anderson

v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 881, 904 (11th Cir. 2014). The inquiry is

“whether, in light of all the circumstances, the identified acts or omissions were

outside the wide range of professionally competent assistance.” Strickland, 466

U.S. at 690. “[H]indsight is discounted by pegging adequacy to ‘counsel’s

perspective at the time’ . . . and by giving a ‘heavy measure of deference to

counsel’s judgments.’” Rompilla v. Beard, 545 U.S. 374, 381 (2005). Thus,

Petitioner must establish that no competent attorney would have taken the

action that his counsel chose.

Notably, the test for ineffectiveness is neither whether counsel could have

done more nor whether the best criminal defense attorneys might have done

more; in retrospect, one may always identify shortcomings. Waters v. Thomas,

46 F.3d 1506, 1514 (11th Cir. 1995) (stating that “perfection is not the standard

of effective assistance”) (quotations omitted). Instead, the test is whether what

counsel did was within the wide range of reasonable professional assistance.

Ward, 592 F.3d at 1164 (quotations and citation omitted); Dingle v. Sec’y for

Dep’t of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007) (“The question is whether

some reasonable lawyer at the trial could have acted as defense counsel acted

in the trial at issue and not what ‘most good lawyers’ would have done.”)

(citation omitted).

A review of the trial transcript reflects that five eyewitnesses, including

the victim, testified that Petitioner and the victim were in an altercation, and

after it was over, Petitioner went into his apartment, came back out with an

assault rifle, and fired multiple shots,5 hitting the victim with the last shot. See

Resp. Ex. B at 42-46 (Robert White); 77-78, 80-83 (Keona Richardson); 102-05

(Kenisha Milton); 130-33 (Tiffany Whitted); 156-60 (Glenn Leftwich).

Additionally, although there was no testimony about the victim having a knife,

the jury was instructed on the use of justifiable deadly force. See Resp. Ex. C at

348 (“The attempted killing of a human being is justifiable and therefore lawful

if it’s necessarily done while resisting an attempt to murder or to commit a

felony upon the defendant or to commit a felony in any dwelling house in which

the defendant was at the time of the attempted killing.”).

Petitioner acknowledges that counsel took depositions, so at least some

investigation occurred prior to trial. In hindsight, Petitioner is simply

dissatisfied with his counsel’s trial strategy. But during trial, Petitioner advised

5 Mr. White testified that Petitioner fired three shots; Ms. Richardson testified that he

fired two or three shots; Ms. Milton testified that he fired more than one shot; Ms.

Whitted testified that he fired three shots; and Mr. Leftwich testified that he fired two

shots. Resp. Ex. B at 45, 83, 104, 131, 160.

the trial court that he understood his right to testify but had chosen not to take

the stand; he had enough time to speak with his counsel about his decision; he

was satisfied with his counsels’ representation; and counsel had done

everything Petitioner wanted them to do and they did not do anything that he

did not want them to do. See id. at 292-93. Considering the record and the

applicable law, the Court finds that Petitioner has shown neither deficient

performance nor resulting prejudice. Thus, he is not entitled to federal habeas

relief on Ground Three.

D. Ground Four

Petitioner asserts that his trial counsel was ineffective for failing to argue

in his motion for judgment of acquittal that Petitioner did not commit

attempted murder, which requires premeditation, and for failing to preserve

the issue of insufficiency of the evidence for appellate review. He argues that he

only intended to scare the victim, which was obvious because given the close

range between him and the victim, if Petitioner intended to kill the victim, he

would have shot him in the chest or head. See Doc. 1 at 19-20. According to

Petitioner, counsel’s ineffectiveness caused him to be convicted of attempted

second degree murder rather than aggravated battery with a deadly weapon.

Id. at 20.

Petitioner raised this claim in his amended Rule 3.850 motion. In denying

the claim, the postconviction court reasoned that Petitioner failed to show

counsel’s alleged ineffectiveness caused him prejudice. Resp. Ex. R at 62-63

(citing Strobridge v. State, 1 So. 3d 1240, 1242 (Fla. 4th DCA 2009), for the

proposition that “[f]ailure to preserve issues for appeal does not show the

necessary prejudice under Strickland”). Petitioner appealed, and the First DCA

per curiam affirmed the postconviction court’s denial of the amended Rule 3.850

motion. Resp. Ex. U.

This Court addresses this claim in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

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.

Even assuming the state court’s adjudication is not entitled to deference,

this claim has no merit. At the close of the state’s evidence, trial counsel moved

for a judgment of acquittal arguing that “the state ha[d] not met their burden

of proving the material elements.” Resp. Ex. C at 292. The trial court denied the

motion, finding that the state “established a prima faci[e] case.” Id. The

evidence presented at trial supports the jury’s verdict. Additionally, the jury

clearly did not find premeditation, as it convicted Petitioner of the lesser-

included charge of attempted second degree murder rather than of the charged

crime of attempted first degree murder. Petitioner has failed to show a

reasonable probability that the outcome would have been different had counsel

argued the motion for judgment of acquittal as Petitioner suggests. Ground

Four is due to be denied.

E. Ground Five

Petitioner contends that his trial counsel was ineffective for failing to

object to the improper bolstering of witnesses and the trial court erred by

allowing the state to introduce hearsay statements of three witnesses.6

Petitioner raised the ineffectiveness claim in his amended Rule 3.850 motion.

In denying the claim, the postconviction court reasoned that Petitioner failed to

show counsel’s alleged deficiency caused him prejudice. Resp. Ex. R at 62-63

(citing Strobridge, 1 So. 3d at 1242, for the proposition that “[f]ailure to preserve

issues for appeal does not show the necessary prejudice under Strickland”).

Petitioner appealed, and the First DCA per curiam affirmed the postconviction

court’s denial of the amended Rule 3.850 motion without a written opinion.

Resp. Ex. U.

On direct appeal, with help from appellate counsel, Petitioner argued,

inter alia, that the trial court erred by allowing the state to introduce the

6 Petitioner appears to concede that this ground has no merit. See Doc. 11 at 1

(“Petitioner is only going to address three issues (issues two, three, and four) . . . and

will concede to the rest.”).

hearsay statements of three witnesses made to Detective Swanson. Resp. Ex.

D. The state filed a response brief. Resp. Ex. E. The First DCA issued a written

opinion on the issue:

Appellant, Tyree Harris, raises two issues on

appeal from his conviction and sentence for attempted

second degree murder. He asserts the trial court erred

by admitting into evidence certain out-of-court

statements made by several prosecution witnesses,

and fundamentally erred under State v. Montgomery,

39 So. 3d 252 (Fla. 2010), by including the element of

intent in the jury instruction on the lesser included

crime of attempted voluntary manslaughter. We

affirm because we conclude the challenged statements

were admissible and the manslaughter instruction did

not violate Montgomery.

At trial, the state’s witnesses included the victim

and four eyewitnesses, one of whom is Appellant’s

father. All five testified that Appellant fought with the

victim, retrieved a firearm from his apartment, shot

the victim, and then fled the scene in his car. They

identified Appellant in court as the shooter, and all but

Appellant’s father testified that shortly after the

incident they identified Appellant from a photo lineup.

The investigator who responded to the shooting scene

also was a prosecution witness, and his testimony

included, inter alia, statements made to him at the

scene by three of the testifying eyewitnesses. The on-

scene statements the deputy relayed to the jury were

essentially identical to the testimony given by the

eyewitnesses. The trial court admitted the out-of-court

statements into evidence as prior consistent

statements under section 90.801(2)(b), Florida

Statutes. Under that provision, an out-of-court

statement is not hearsay if the declarant testifies at

trial, the statement is consistent with the declarant’s

testimony, and the statement is “offered to rebut an

express or implied charge . . . of improper influence,

motive, or recent fabrication.” § 90.801(2)(b), Fla. Stat.

(2009).

We agree the statements were not admissible as

prior consistent statements because they were not

offered for the purposes specified in the statute. But

we find the statements were admissible under section

90.801(2)(c) which provides that an out-of-court

statement is not hearsay if it is “[o]ne of identification

of a person made after perceiving the person” and the

declarant testifies and is subject to cross-examination.

§ 90.801(2)(c), Fla. Stat. (2009). See Puryear v. State,

810 So. 2d 901, 904 (Fla. 2002). The record thus

provides us a basis to affirm the trial court’s ruling.

See Dade County Sch. Bd. v. Radio Station WQBA, 731

So. 2d 638, 644 (Fla. 1999).

Resp. Ex. I; Harris v. State, 42 So. 3d 863, 864 (Fla. 1st DCA 2010).

This Court addresses these claims in accordance with the deferential

standard for federal court review of state court adjudications. Upon thorough

review of the record and the applicable law, the Court concludes that the state

court’s adjudications of these claims were not contrary to clearly established

federal law, did not involve an unreasonable application of clearly established

federal law, and were not based on an unreasonable determination of the facts

in light of the evidence presented. As such, Ground Five 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.7

DONE AND ORDERED at Jacksonville, Florida, this 14% day of

February, 2022.

@ Cimetbeg g. Corrig an

Ww. TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 2/11

Cc:

Tyree Harris, #J38617

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.

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