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

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DEMETRIS S. ALLEN,

Petitioner,

v. Case No. 3:19-cv-320-TJC-JBT

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 Amended Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc.

4). He challenges a state court (Duval County, Florida) judgment of conviction

for two counts of attempted first degree murder and one count of shooting or

throwing a deadly missile into a dwelling. He is serving life imprisonment.

Respondents filed a Response (Doc. 10) with exhibits (Docs. 10-1 to 10-7, S-11;

“Resp. Ex.”). Petitioner filed a Notice indicating that he would not file a reply,

but would instead rely on his allegations and claims as stated in the Amended

Petition (Doc. 13). 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 (1995) (per curiam) (quoting

Picard v. Connor, 404 U.S. 270, 275 (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, 513 U.S. at 365-66; O’Sullivan v. Boerckel, 526

U.S. 838, 845 (1999).

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

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, 501 U.S. at 747-48;

Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977). 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, 131 S. Ct. 1120,

1127-28 (2011); Beard v. Kindler, 130 S. Ct. 612, 617-

18 (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.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012) (internal citations modified). 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 Murray

v. Carrier, 477 U.S. 478, 488 (1986). 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).

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

modified).

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. “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 (internal citations modified). “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. Grounds One, Two, Three, Four, Five, Seven, Eight, Nine, Ten,

Eleven, and Twelve

In these eleven grounds, Petitioner raises various ineffective assistance

of trial counsel claims. Specifically, he argues that counsel was ineffective for:

 Ground One: failing “to investigate and expose false information used

in the affidavit for arrest,” Doc. 4 at 16;

 Ground Two: failing “to investigate and challenge unconstitutionally

suggestive photo-lineup,” id. at 18;

 Ground Three: failing to “move to suppress all evidence obtained and

used” in violation of Miranda v. Arizona, 384 U.S. 436 (1966), Doc. 4

at 23;

 Ground Four: failing “to challenge outrageous misconduct on the part

of the State, to secure appellate review,” in that “the State was in

possession of[] and used impeachment evidence to expose potential

juror bias to strike jurors,” but did not provide that evidence to the

defense, id. at 26;

 Ground Five: failing “to ensure [Petitioner’s] right to [a] speedy trial”

was protected, id. at 26;

 Ground Seven: failing “to expose and challenge the prosecutor’s

selective and vindictive prosecution of Petitioner,” id. at 32;

 Ground Eight: “fail[ing] to challenge incorrect peremptory and cause

challenges and other outside influences, which resulted in [Petitioner]

not receiving the jury of his choice (nor the jury that should have been

lawfully impaneled),” id. at 33;

 Ground Nine: failing “to challenge the Prosecution’s solic[i]ting

testimony consistent with misrepresentations of material facts,” and

the fact that there was “no physical evidence pointing to the

Petitioner” to secure a conviction, id. at 38;

 Ground Ten: failing “to challenge the prosecutor’s failure to disclose

material impeachment evidence about the state’s informant

(witness),” in violation of Giglio v. United States, 405 U.S. 150 (1972),

id. at 40;

 Ground Eleven: failing to ensure that the defense was permitted to

speak last in closing arguments, id. at 41; and

 Ground Twelve: failing “to request a nullification instruction when the

court on numerous occasions misadvised the jurors on the laws to be

applied,” id. at 42.

Petitioner presented each of these claims in his amended Florida Rule of

Criminal Procedure 3.850 motion. See Resp. Ex. I at 73-100.1 The postconviction

court denied the claims as untimely:

The Court notes that “the time limitations for

commencing postconviction proceedings pursuant to

Florida Rule of Criminal Procedure 3.850 begin to run

with the finality of the judgment and sentence, which

is triggered when there has been a direct appeal by the

issuance of the appellate court’s mandate.” Pitzer v.

Bretey, 95 So. 3d 1005, 1006 (Fla. 2d DCA 2012). “A

trial court may properly deny an amended rule 3.850

motion as untimely when it raises new claims and is

filed outside of the two-year time period. The two-year

1 The claims raised in Petitioner’s Amended Petition filed in this case are identical to

the claims raised in his amended Rule 3.850 motion filed in state court.

time period, however, does not preclude the

enlargement of issues which were raised in a timely

filed motion for postconviction relief.” Lanier v. State,

826 So. 2d 460,461 (Fla. 1st DCA 2002) (internal

citations omitted).

In the instant case, Defendant’s judgment and

sentence became final upon the issuance of the

appellate court’s Mandate on April 17, 2012, giving

Defendant until on or about April 17, 2014, to timely

file a rule 3.850 motion. Although Defendant’s

September 26, 2012, Motion is timely filed, his April

27, 2017, Amended Motion is untimely filed well

beyond the expiration of the limitations period of rule

3.850. As such, any new claims raised in Defendant’s

Amended Motion warrant denial as untimely, and only

claims that actually amend or enlarge a timely raised

claim will be deemed timely. Lanier, 826 So. 2d 460.

After review of Defendant’s Amended Motion

and the twelve enumerated allegations raised therein,

the Court finds that only the allegations in ground six

may be deemed an enlargement of a timely-raised

claim, and the remainder of Defendant’s allegations in

his Amended Motion are new claims that are untimely

filed. Specifically, ground six of Defendant’s Amended

Motion amends the claim in ground one of his original,

timely-filed Motion. As such, the Court will address

ground six of Defendant’s Amended Motion for Post-

Conviction Relief, and grounds one, two, three,

four, five, seven, eight, nine, ten, eleven, and

twelve of Defendant’s Amended Motion are

denied as untimely.

Resp. Ex. I at 116-17 (emphasis in original). Petitioner appealed the denial of

his amended Rule 3.850 motion, and the First District Court of Appeal per

curiam affirmed the denial without a written opinion. See Resp. Ex. J.

The Court finds that the state court’s application of the procedural bar

based on untimeliness is an independent and adequate state law ground. Thus,

these claims are procedurally barred on federal habeas review. See Bailey v.

Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999) (“[W]here the state court correctly

applies a procedural default principle of state law to arrive at the conclusion

that the petitioner’s federal claims are barred, . . . the federal court [must]

respect the state court’s decision.”).

To overcome the procedural bar, Petitioner must show cause and

prejudice or a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750

(“In all cases in which a state prisoner has defaulted his federal claims in state

court pursuant to an independent and adequate state procedural rule, federal

habeas review of the claims is barred unless the prisoner can demonstrate cause

for the default and actual prejudice as a result of the alleged violation of federal

law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.”). Petitioner has failed to do so. Indeed, he

has failed to set forth any argument relating to the procedural bar of these

claims. Thus, he has failed to show either cause or prejudice or demonstrate

that a fundamental miscarriage of justice will result if the Court does not

consider the claims.2 Therefore, Grounds One, Two, Three, Four, Five, Seven,

Eight, Nine, Ten, Eleven, and Twelve are due to be denied.

B. Ground Six

Petitioner argues that his trial counsel was ineffective for failing to

investigate and call witnesses. See Doc. 4 at 27-32. He specifically lists three

witnesses (Gloria Allen, India Watson, Corey Norman) who he claims were

available to testify and would confirm that he was not at the scene of the

shooting. Id. at 29-30. Petitioner raised this claim as ground six in his amended

Rule 3.850 motion. See Resp. Ex. I at 84-89. The state postconviction court

summarized Petitioner’s allegations in detail, identified Strickland as the

controlling law on ineffective assistance of counsel claims, and denied the claim

as follows:

In the instant case, after extensive review of the

record, this Court finds that defense counsel went to

great lengths to let the record reflect that, although

Defendant had provided counsel with numerous

potential witnesses, investigation into those potential

witnesses led to a determination — agreed to by

Defendant on the record — that those witnesses would

not be beneficial and would not be called to testify.

2 In addition to arguing that Petitioner has failed to show cause or prejudice, or a

fundamental miscarriage of justice, Respondents also argue that Petitioner cannot

avail himself of the exception set forth in Martinez because his claims are not

substantial. See Doc. 10 at 24-25, 29-40, 43-46, 49-52, 55-58, 74-78, 81-87, 89-94, 96-

99, 102-03, 106-07. Although Petitioner was afforded an opportunity to reply to

Respondents’ arguments, Petitioner declined to do so. See Doc. 13. Thus, because

Petitioner has failed to argue that Martinez applies, the Court does not address

Respondents’ arguments in that regard.

Specifically, the record reflects that, prior to jury

selection, defense counsel informed the trial court as

follows:

DEF. COUNSEL: Your Honor, we’ve been

discussing, in talking with Mr. Demetris

Allen, I was given 15 witnesses. I’ve also

gotten an additional one. I’ve spoken to —

we’ve decided, and I’m going to make sure

that Mr. Allen understands, that we’re not

going to call those witnesses, but there’s

one in custody that my investigator’s

presently trying to speak with, and at this

time in talking with him I don’t know if

we’re calling him or not. I will find out

before-

THE COURT: I’ll just read the name along

with the others as a potential. What’s the

name?

DEF. COUNSEL: That’s a Mr. Newman.

Corey Newman, Your Honor.

THE COURT: Corey. I will just read that

name along with the others just in case.

DEF. COUNSEL: Thank you, Your Honor.

THE COURT: Okay. And you’re sure

about the others. There’s no — no other

names that I may-

DEF. COUNSEL: No. That’s the only one.

THE COURT: Okay.

(Ex. F, p. 7). Two days later, just before trial

commenced, defense counsel informed the trial court

about her investigation into Defendant’s potential

witnesses and the ultimate determination that these

witnesses would not be beneficial to Defendant and

would not be called to testify, and Defendant affirmed

this strategic determination on the record:

DEF. COUNSEL: The defense has

something to put on the record.

THE COURT: Okay.

DEF. COUNSEL: Mr. Allen and I had

discussions about certain defense

witnesses, people that he wanted to call,

people that he did not want to call.

Defense counsel was able to locate the

different places that Mr. Allen wanted us

to go, and the different witnesses, I believe

it was like 15, and then there were

another couple of witnesses. On Monday

during jury selection, my investigator

came in and provided me a file with

detailed information regarding those

witnesses. I discussed all of that with Mr.

Allen, and Mr. Allen agreed that the

individuals that he mentioned would not

be good defense witnesses, and agreed to

not call them during the defense case.

THE COURT: Okay. Mr. Allen, that’s all

correct.

DEFENDANT: (Defendant nods head.)

THE COURT: You’ve agreed that it would

not be good for you to call those witnesses?

DEFENDANT: Yes.

THE COURT: Okay. And Ms. Lance,

probably more importantly, you did locate

those people and either you or your

investigator spoke with them?

DEF. COUNSEL: Your Honor, we did not

locate all 15. We located a sizable amount,

and spoke with them. The conversation

that I had did not lead me to believe that

they were useful. The last two that I had,

closer to trial date, we were able to locate,

create a file on, get history of their

background, all of that information, and

after discussing that with my client, we

realized that they were not good defense

witnesses.

THE COURT: Okay. So, it’s your opinion

that none of those witnesses you talked to

would be good defense witnesses.

DEF. COUNSEL: Yes, Your Honor. And

just for the record, I went through, I

believe, about half the witnesses,

discussed with him the information that

they provide, conferred with him about

what the other witnesses might provide,

and based on that, if they were similar to

what we had already discussed, we made

a determination that it would not be

advisable to contact any of those

additional witnesses.

THE COURT: Because again, they would

not be helpful.

DEF. COUNSEL: Yes, Your Honor.

(Ex. G, pp. 20-22). After the State rested its case and

the trial court denied the defense’s motion for judgment

of acquittal, the record reflects that defense counsel

again conferred with Defendant and they then

maintained the strategic determination that no defense

witnesses would be called to testify:

THE COURT: Ms. Lance, do you have any

testimony, other than possibly Mr. Allen,

do you have any other witnesses or

evidence to present?

DEF. COUNSEL: Your Honor, may I ask

briefly?

THE COURT: Yes.

(Counsel conferring with client.)

DEF. COUNSEL: Your Honor, I have

spoken to Mr. Allen. For the reasons that

are already on the record, we are not

calling any witnesses.

(Ex. H, p. 217). As the record reflects that the decision

not to call witnesses was a strategic one, agreed to by

Defendant on the record and reasonable under the

circumstances, the record refutes Defendant’s claim,

and counsel cannot be deemed deficient as alleged. See

Kelley v. State, 109 So. 3d 811 (Fla. 1st DCA 2013);

Mclndoo v. State, 98 So. 3d 640 (Fla. 4th DCA 2012).

Although such a finding may end the Court’s

analysis of Defendant’s claim,[] the Court notes

additionally that a review of the record reflects that

Defendant also cannot demonstrate prejudice on his

claim. Specifically, even if the three named potential

witnesses had testified at trial to the information

Defendant alleges in his Motion they would have

testified to if called to do so, this Court does not find

there to be a reasonable probability that such

testimony would have affected the outcome of the trial.

In making this finding, the Court notes that the

testimony presented at trial included the following:

Leading up to the night of the shooting, there had been

a history of physical fights between two groups of

women, with Jade Little, Keyona Whitfield, and J’Nay

Brinson on one side, and Idreka Johnson, India

Watson, and a girl named Mercedes on the other. (Ex.

G, pp. 52-55, 81-82, 98, 110-111). Jade Little, Keyona

Whitfield, and J’Nay Brinson were among eleven

people inside a house on the night of October 25, 2010,

and Idreka Johnson and India Watson were outside the

house “provoking” Keyona Whitfield and others to come

outside the house to fight, but that no one did. (Ex. G,

pp. 52-55, 81-85, 98-101, 110-111, 141-142, 151-154). A

man—identified as Defendant by five eyewitnesses—

approached and joined the women outside the house,

paced back and forth, then pulled out a gun and fired

at and into the house a number of times. (Ex. G, pp. 54-

62, 67-69, 81-91, 101-107, 110-117, 154-161, 193-200;

Ex. H, pp. 205-209, 212-214). Two of the eleven

individuals inside the house, including, Jade Little,

were shot. (Ex. G, pp. 47, 60-67, 103-104, 141-145).

Defendant alleges in his Motion that potential

witness Corey Norman would have testified that he

was with Defendant at a club all night until his aunt—

potential witness Gloria Allen—picked Defendant up,

which Defendant contends “would have provided an

accountability of the [Defendant’s] presence at the club

during the time of the shooting.” Defendant contends

that Corey Norman and Gloria Allen also would have

testified to their knowledge of the relationship between

Defendant and Jade Little “and her animosity towards”

him, which Defendant contends would have shown the

jury “reasons why Ms. Little made [sic] have wished to

misidentify [Defendant] and influence others

testimony.” Such testimony was necessary, as

“everyone else’s identification of ‘Boo’ as the shooter

was influenced by Jade Little in some form or fashion.”

Defendant alleges that potential witness India Watson

would have testified that she “was not present at the

scene of the shooting and had not spoken with

[Defendant] at all that day,” which Defendant contends

“would have cast doubt as to the certainty of the State’s

witnesses recollection of events if not totally exposed it

for the fabrication it was,” thereby creating reasonable

doubt as to Defendant’s guilt.

The Court notes that Defendant’s allegation is

premised on an underlying contention that every

witness who identified Defendant as the shooter was

influenced by Jade Little, whom he contends

misidentified Defendant based on her animosity

toward him.

This contention, however, is flawed, as not every

witness who identified Defendant could have been

influenced by Jade Little. Specifically, the four

witnesses who identified Defendant included Danielle

Brown—who testified she did not know Defendant

previously and had no connection to Jade Little, yet

identified Defendant by photo and in court as the man

pacing outside the house—and ldreka Johnson—who

arguably had a connection to Defendant and was at

odds with Jade Little, yet identified Defendant by

photo and in court as the shooter that night. (Ex. G,

52-55, 77-91, 98, 110-112, 151-161, 193-194; Ex. H, pp.

212-214). In light of such testimony, the Court finds

that additional testimony about Jade Little’s alleged

animosity toward Defendant would not have affected

the outcome of the trial. Additionally, in light of the

eyewitness testimony from multiple witnesses placing

both Defendant and India Watson at the scene, there

is not a reasonable probability that the alleged

testimony of Corey Norman and India Watson

allegedly stating otherwise would have affected the

outcome of the trial. (Ex. G, pp. 55-61, 67-69, 77-91,

98-103, 110-117, 151-161).

In summary, the Court finds that the record

reflects that the decision to not call witnesses was a

strategic one, reasonable under the circumstances,

which Defendant agreed to on the record, and as such,

the record conclusively refutes Defendant’s allegation

that counsel was deficient. Moreover, the Court notes

that Defendant cannot demonstrate prejudice as a

result of counsel’s alleged deficiency, as there is not a

reasonable probability the outcome of the trial would

have been affected had his potential witnesses

testified as alleged. As such, Defendant warrants

no relief on his allegations of ineffective

assistance of counsel for failure to investigate

and call witnesses, as alleged in ground six of his

Amended Motion for Post-Conviction Relief.

Resp. Ex. I at 124-30 (footnotes omitted; emphasis in original). Petitioner

appealed, and the First District Court of Appeal per curiam affirmed the denial

without a written opinion. See Resp. Ex. J.

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. Thus, Petitioner is not entitled to federal habeas

relief on Ground Six.

Accordingly, it is

ORDERED:

1. The Amended Petition (Doc. 4) 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 Amended 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 2274 day of

February, 2022.

Cirnotheg 9. Corrig an

TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 2/11

C:

Demetris S. Allen, #J44578

Counsel of Record

3 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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