Hicks v. Secretary, Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

BERNARD CALVIN HICKS,

Petitioner,

v. Case No. 3:19-cv-879-MMH-LLL

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Bernard Hicks, an inmate of the Florida penal system,

initiated this action on July 26, 2019, by filing a Petition for Writ of Habeas

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

challenges a 2015 state court (Duval County, Florida) judgment of conviction

for aggravated battery and attempted armed robbery. He raises two grounds

for relief. See Petition at 4-12. Respondents submitted a memorandum in

opposition to the Petition. See Response (Doc. 6). They also submitted exhibits.

1 For purposes of reference to pleadings and exhibits, the Court will cite

the document page numbers assigned by the Court’s electronic docketing

system.

See Docs. 6-1 through 6-3. Hicks filed a brief in reply. See Reply (Doc. 7). This

action is ripe for review.

II. Relevant Procedural History

On April 17, 2014, the State of Florida charged Hicks with aggravated

battery (count one) and attempted armed robbery (count two). Doc. 6-1 at 52.

On November 4, 2015, at the conclusion of a trial, the jury found Hicks guilty

of both counts as charged with a special finding as to count two that Hicks

“carried a deadly weapon during the commission of the offense.” Id. at 105-06.

The trial court sentenced Hicks to concurrent sixteen-year terms of

imprisonment for both counts on December 11, 2015. Id. at 139-45.

On direct appeal, Hicks, through counsel, filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), Doc. 6-2 at 420-30, and a motion to

allow Hicks to file a pro se brief, id. at 432-33. The First District Court of

Appeal (First DCA) granted permission for Hicks to file a pro se brief. Id. at

435. Hicks did so and later filed an amended pro se brief, arguing that the trial

court erred by instructing the jury on a forcible felony exception to the

justifiable use of force (ground one) and omitting “including deadly force” from

the standard jury instructions on the justifiable use of non-deadly force

(ground two). Id. at 437-39, 443-46. The State did not file an answer brief. See

2

onlinedocketsdca.flcourts.org, Bernard C. Hicks v. State of Florida, 1D15-5691

(Fla. 1st DCA). The First DCA affirmed Hicks’s convictions and sentences on

June 9, 2016, id. at 455, and issued the mandate on July 6, 2016, id. at 457.

On July 12, 2016, Hicks filed a pro se motion for postconviction relief

under Florida Rule of Criminal Procedure 3.850. Doc. 6-2 at 462-81. In his Rule

3.850 Motion, Hicks alleged counsel was ineffective for failing to: (1) object to

the trial court instructing the jury on a forcible felony exception to the

justifiable use of force; (2) object to the trial court excluding a jury instruction

that the justifiable use of force constitutes a defense to attempted robbery; (3)

object to the trial court omitting “including deadly force” from the standard

jury instruction on the justifiable use of non-deadly force; (4) request a limiting

instruction on the jury’s use of prior felony convictions; (5) present photographs

of Hicks’s injuries to support a justifiable use of force defense; (6) object to the

prosecutor’s comments on facts not in evidence; and (7) object to a law

enforcement witness’s improper opinion testimony. Id. at 464-78. Hicks also

asserted that counsel’s cumulative errors denied him a fair trial. Id. at 478-79.

On December 19, 2017, the circuit court summarily denied relief on all

grounds. Doc. 6-3 at 5-14. The First DCA per curiam affirmed the denial of

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relief without a written opinion on January 25, 2019, id. at 185, and issued the

mandate on February 22, 2019, id. at 188.

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). “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 [Hicks’s] claim[s] without

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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). “‘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,

5

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:

6

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

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conclusion in the first instance.’”[2] 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). Also, deferential

review under § 2254(d) generally is limited to the record that was before the

state court that adjudicated the claim on the merits. See Cullen v. Pinholster,

563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an

examination of the state-court decision at the time it was made”).

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

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

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

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

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

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

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

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

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

U.S.C. § 2254(d).

2 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).

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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

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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,[3] supra, at 747–

748, 111 S. Ct. 2546; Sykes,[4] 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

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

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

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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).[5]

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

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

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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.

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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

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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

14

determination was unreasonable - a substantially

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

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

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

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

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

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

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

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

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

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

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

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

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

VI. Findings of Fact and Conclusions of Law

A. Ground One

Hicks alleges counsel was ineffective because he failed to present

photographs of bruises that Hicks sustained during an altercation with the

victim, Henry Scott. Petition at 4-7. Hicks asserts that the Public Defender’s

Office sent an investigator to the Duval County Jail to interview him on the

day after his arrest. Id. at 4. At that time, the investigator photographed

15

Hicks’s injuries, including a swollen lip and bruises on his wrist and shoulder.

Id. Hicks contends the photographs would have corroborated his self-defense

theory and strengthened his credibility as a witness. Id. at 6-7. According to

Hicks, if the jurors had seen the photographs, they would have believed his

self-defense theory and acquitted him of all charges. Id. at 7.

Hicks raised a similar claim in state court as ground five of his Rule

3.850 Motion. Doc. 6-2 at 473-75. In denying relief, the circuit court explained:

Defendant alleges counsel was ineffective for

failing to present evidence of the bruises Defendant

received during his altercation with the victim.

Specifically, Defendant contends that an investigator

for the Office of the Public Defender took photographs

of Defendant at the jail shortly after the incident.

Defendant states this evidence would have combated

the State’s arguments that a “poor old defenseless

man” was beaten by a bigger, unscathed Defendant as

well as supported his theory of self-defense.

At trial, the State presented a picture of

Defendant’s face to the jury, so that he could point out

any injuries he sustained, and Defendant said his lip

was swollen, but acknowledged he had no broken skin.

Defendant further testified that an investigator from

the Office of the Public Defender took pictures of him

after the incident and that his wrist and shoulder were

bruised. This Court finds that even if Defendant was

able to show a picture of a bruised wrist and shoulder,

there is no reasonable probability the result of the

proceeding would have been different. This is

particularly true in light of the victim’s injuries,

including knocked out teeth, swollen face, and stitches

16

to the victim’s ear. Moreover, this is true due to the

fact that the jury obviously did not believe Defendant’s

account of the night, and rather believed that

Defendant had attempted to rob the victim and, in the

process, injured him severely. Lastly, while the

pictures were not shown, Defendant did testify to

those injuries at trial. Defendant is, therefore, not

entitled to relief.

Doc. 6-3 at 10 (record citations omitted). The First DCA per curiam affirmed

the denial of relief without a written opinion. Id. at 185.

To the extent that the First DCA denied this claim on the merits,6 the

Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. After a review of the record

and the applicable law, the Court concludes that the state court’s adjudication

of this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not

based on an unreasonable determination of the facts in light of the evidence

presented in the state court proceedings. Therefore, Hicks is not entitled to

relief on the basis of this claim.

6 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.

17

Nevertheless, even if the appellate court’s adjudication of the claim is

not entitled to deference, Hicks’s ineffectiveness claim is without merit because

the record supports the postconviction court’s conclusion. Hicks has not

demonstrated counsel’s failure to submit the photographs as evidence

prejudiced the defense. Jacksonville Sheriff’s Office Detective Andrew Kipple

testified to photographing Hicks on the night of his arrest. Doc. 6-2 at 111-12,

121. The jury viewed a photograph of Hicks from the night of his arrest and

knew about the photographs of the bruises. Id. at 121. Detective Kipple also

testified that he did not observe any injuries on Hicks. Id. at 122.

During Hicks’s testimony, the State again presented the photograph and

asked Hicks to locate where the victim had hit him. Doc. 6-2 at 205-06. Hicks

testified the victim hit his bottom lip, and he pointed to swelling on his lip in

the photograph. Id. at 206. He further noted that the victim hit his shoulder.

Id. at 218. Hicks testified that an investigator from the Public Defender’s Office

photographed him on the day after his arrest. Id. The photographs showed

bruising on his wrist and shoulder. Id. Despite this testimony, the jury still

found Hicks did not act in self-defense. On this record, no reasonable

probability exists that photographs of bruises on Hicks’s wrist and shoulder

would have produced a different outcome at trial.

18

Moreover, photographs of Hicks’s bruises would not undermine the

victim’s testimony that Hicks attacked him. The victim testified to “tussling”

with Hicks. Doc. 6-2 at 45. On cross-examination, he admitted to striking and

holding onto Hicks so Hicks would not push him over the coffee table in the

living room. Id. at 68. Based on the victim’s version of events, the jury could

have concluded that even though Hicks sustained bruises during the incident,

he did not act in self-defense. A reasonable probability does not exist that the

introduction of photographs showing bruises on Hicks’s wrist and shoulder

would have resulted in the jury finding Hicks’s testimony more credible than

the victim’s testimony. As such, Hicks cannot demonstrate prejudice, and relief

on the claim in ground one is due to be denied. See Strickland, 466 U.S. at 697

(“[T]here is no reason for a court deciding an ineffective assistance claim . . . to

address both components of the inquiry if the defendant makes an insufficient

showing on one.”).

B. Ground Two

Hicks claims counsel was ineffective when he failed to object to improper

opinion testimony from a law enforcement witness, Officer M.L. Herrera.

Petition at 8-11. In his Reply, Hicks withdraws the claim in ground two “after

19

carefully researching the relevant case law. . . .” Reply at 1. Therefore, the

Court deems ground two to be withdrawn and will not address it.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Hicks 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, Hicks “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

20

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 Hicks 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.

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

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 18th day of

April, 2022.

MARCIA MORALES HOWARD

United States District Judge

Jax-9

C: Bernard Calvin Hicks #957557

Counsel of record

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