# Robinson v. Secretary, Department of Corrections, State of Florida (Duval County)

> District Court, M.D. Florida · April 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10109957

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** April 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

MARCUS ROBINSON,

Petitioner,

vs. Case No. 3:19-cv-1013-BJD-LLL

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,

Respondents.

ORDER
I. STATUS
Petitioner Marcus Robinson, represented by counsel, filed a Petition
Under 28 U.S.C. § 2254 by a Person in State Custody Pursuant to a State Court
Judgment (Petition) (Doc. 1). He raises three grounds claiming ineffective
assistance of counsel and challenges a 2008 state court (Duval County)
conviction for second-degree murder. Respondents filed a Response to
Petition for Writ of Habeas Corpus (Response) (Doc. 5) and Exhibits (Doc. 5).1

1 Respondents filed Exhibits (Doc. 5). The Court hereinafter refers to the Exhibits as “Ex.”
Where provided, the page numbers referenced in this opinion are the Bates stamp numbers.
Otherwise, the page number on the particular document will be referenced. The Court
references the docket and page numbers assigned by the electronic filing system for the
Petition and Response.
Petitioner filed a Reply to the Respondents’ Response (Doc. 6). See Order
(Doc. 4).

The Court concludes no evidentiary proceedings are required in this
Court. The pertinent facts are fully developed in the record, or the record
otherwise precludes habeas relief; therefore, the Court can adequately assess
the claim without any further factual development. Turner v. Crosby, 339

F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004).
II. HABEAS REVIEW
Federal courts are authorized to grant habeas relief to a state prisoner
“only on the ground that he is in custody in violation of the Constitution or

laws or treaties of the United States.” Lee v. GDCP Warden, 987 F.3d 1007,
1017 (11th Cir.) (quoting 28 U.S.C. § 2254), cert. denied, 142 S. Ct. 599 (2021).
For issues previously decided by a state court on the merits, this Court must
review the underlying state-court decision under the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). In doing so, a federal district
court must employ a very deferential framework. Sealey v. Warden, Ga.
Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir. 2020) (citation omitted)
(acknowledging the deferential framework of AEDPA for evaluating issues

previously decided in state court), cert. denied, 141 S. Ct. 2469 (2021); Shoop
v. Hill, 139 S. Ct. 504, 506 (2019) (per curiam) (recognizing AEDPA imposes

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“important limitations on the power of federal courts to overturn the
judgments of state courts in criminal cases").

Thus, “[u]nder AEDPA, a court cannot grant relief unless the state
court's decision on the merits was ‘contrary to, or involved an unreasonable
application of,’ Supreme Court precedent, or ‘was based on an unreasonable
determination of the facts in light of the evidence presented in the State court

proceeding.’” McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d 1357, 1364 (11th
Cir.) (citing 28 U.S.C. § 2254(d)(1)-(2)), cert. denied, 142 S. Ct. 441 (2021). The
Eleventh Circuit instructs:
A state court’s decision is “contrary to” clearly
established federal law if the state court either reaches
a conclusion opposite to the Supreme Court of the
United States on a question of law or reaches a
different outcome than the Supreme Court in a case
with “materially indistinguishable facts.” Williams
v. Taylor, 529 U.S. 362, 412-13, 120 S. Ct. 1495, 146
L.Ed.2d 389 (2000). “Under the ‘unreasonable
application’ clause, a federal habeas court may grant
the writ if the state court identifies the correct
governing legal principle” from Supreme Court
precedents “but unreasonably applies that principle to
the facts of the prisoner’s case.” Id. at 413, 120 S. Ct.
1495.

Lee, 987 F.3d at 1017-18. Therefore, habeas relief is limited to those occasions
where the state court’s determinations are unreasonable, that is, if no
fairminded jurist could agree with them. McKiver, 991 F.3d at 1364.

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This high hurdle is not easily surmounted. If the state court applied
clearly established federal law to reasonably determined facts when

determining a claim on its merits, “a federal habeas court may not disturb the
state court’s decision unless its error lies ‘beyond any possibility for fairminded
disagreement.’” Shinn v. Kayer, 141 S. Ct. 517, 520 (2020) (per curiam)
(quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). Also, a state court's

finding of fact, whether a state trial court or appellate court, is entitled to a
presumption of correctness under 28 U.S.C. § 2254(e)(1). “The state court’s
factual determinations are presumed correct, absent clear and convincing
evidence to the contrary.” Sealey, 954 F.3d at 1354 (quoting 28 U.S.C. §

2254(e)(1)). See Hayes v. Sec’y, Fla. Dep’t of Corr., 10 F.4th 1203, 1220 (11th
Cir. 2021) (Newsome, Circuit Judge, concurring) (recognizing the universal
requirement, applicable to all federal habeas proceedings of state prisoners,
set forth in 28 U.S.C. § 2254(e)(1)). This presumption of correctness, however,

applies only to findings of fact, not mixed determinations of law and fact.
Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046
(2001). Furthermore, the second prong of § 2254(d), requires this Court to
“accord the state trial court [determination of the facts] substantial deference.”

Dallas v. Warden, 964 F.3d 1285, 1302 (11th Cir. 2020) (quoting Brumfield v.
Cain, 576 U.S. 305, 314 (2015)), cert. denied, 142 S. Ct. 124 (2021). As such,

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a federal district court may not supersede a state court’s determination simply
because reasonable minds may disagree about the finding. Id. (quotation and

citation omitted).
Finally, where there has been one reasoned state court judgment
rejecting a federal claim followed by an unexplained order upholding that
judgment, federal habeas courts employ a "look through" presumption: "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." Wilson
v. Sellers, 138 S. Ct. 1188, 1192 (2018) (Wilson).

III. INEFFECTIVE ASSISTANCE OF COUNSEL
Claims of ineffective assistance of counsel are “governed by the familiar
two-part Strickland standard.” Knight v. Fla. Dep’t of Corr., 958 F.3d 1035,
1038 (11th Cir. 2020), cert. denied, 141 S. Ct. 2471 (2021). Pursuant to this

standard, “a defendant must show that (1) his counsel's performance was
deficient and (2) the deficient performance prejudiced his defense. Strickland,
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). We
need not address both prongs if a petitioner makes an insufficient showing on

one prong. Id. at 697.

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To prevail, a petitioner must successfully show his counsel “made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment” as well as show “the deficient
performance prejudiced the defendant, depriving him of a ‘fair trial, a trial
whose result is reliable.’” Raheem v. GDCP Warden, 995 F.3d 895, 908 (11th
Cir. 2021) (quoting Strickland, 466 U.S. at 687), cert. denied, 142 S. Ct. 1234

(2022). Additionally,
because “[t]he standards created by Strickland and §
2254(d) are both ‘highly deferential,’ . . . when the two
apply in tandem, review is ‘doubly’ so. Harrington [v.
Richter, 562 U.S. 86, 105 (2011)] (internal citations
and quotation omitted). Thus, under § 2254(d), “the
question is not whether counsel’s actions were
reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland’s deferential standard.” Id.

Tuomi v. Sec’y, Fla. Dep’t of Corr., 980 F.3d 787, 795 (11th Cir. 2020), cert.
denied, 141 S. Ct. 1721 (2021).
With respect to an ineffective assistance challenge to the voluntariness
of a guilty or no contest plea, a petitioner must show there is a “reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The ineffective assistance of counsel may require a plea be set aside on the
ground that it was involuntary because voluntariness implicates not only

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threats and inducements but also ignorance and incomprehension. Finch v.
Vaughn, 67 F.3d 909, 914 (11th Cir. 1995) (citations omitted).

This Court must be mindful that in a post-conviction challenge to a guilty
plea, the representations of the defendant, his counsel, and the prosecutor at
the plea hearing, plus the findings of the judge, constitute “a formidable
barrier.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Indeed, a

defendant’s solemn declarations in open court carry a strong presumption of
verity. Thus, later contentions by a defendant contrary to the record may be
deemed wholly incredible based on the record.
IV. GROUND ONE

Ground One: Defense counsel rendered ineffective assistance of
counsel by failing to properly investigate and advise Petitioner
Robinson regarding a self-defense theory.

Petitioner exhausted ground one by raising it in his Second Amended
Motion for Postconviction Relief and on appeal to the First District Court of
Appeal (1st DCA). Ex. F at 28-42, 46-56; 76-83, 84-141; Ex. H; Ex. K; Ex. L;
Ex. O; Ex. R. The claim is due to be denied as the state court’s adjudication
of the claim is not contrary to or an unreasonable application of Strickland and
Hill or based on an unreasonable determination of the facts. As such,
Petitioner is not entitled to habeas relief on ground one.

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The record shows Petitioner was arrested, and by information, charged
with murder in the second degree. Ex. A at 1-5, 12. The court appointed the

public defender to represent Petitioner. Ex. A, docket, case no. 16-2007-CF-
019023. The record also demonstrates defense counsel scheduled and/or
participated in numerous depositions. Id. at 1-3.
On April 24, 2008, Petitioner was charged by Indictment with First-

Degree Murder. Ex. A at 25-26. Trial preparation continued. On July 28,
2008, the trial court discharged the public defender/regional conflict counsel,
and then Shawn A. Arnold, John P. Leombruno, and Vanessa Zamora, retained
counsel, appeared for Petitioner. Ex. A, docket, case no. 16-2007-CF-019023

at 5. The state filed a motion to compel body material samples, informing the
court that, during the course of the investigation, the police recovered a
cigarette butt from the scene near the body, and the DNA profile of the major
contributor to the DNA mixture was developed at 12 of 13 markers from a male

donor, and the police had recovered DNA from Petitioner’s abandoned soda
can, and developed a DNA profile at 13 markers, and ultimately, a comparison
revealed a match at the 12 markers developed from the cigarette butt. Id. at
43-44. The trial court granted the state’s motion. Id. at 45.

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Petitioner’s counsel filed a motion for authorization to incur costs of
depositions, and the court granted the motion. Id. at 46-48. Although a final

pretrial was scheduled for August 21, 2008, the court canceled the hearing as
there was a possible disposition. Ex. A, docket, case no. 16-2007-CF-019023
at 5-6.
On the charge of first-degree murder, Petitioner faced a life sentence

with a minimum mandatory of 25 years in prison. Ex. B at 14-15. He faced
the same maximum sentence on a second-degree murder charge. Id. On
August 14, 2008, Petitioner signed a Plea of Guilty and Negotiated Sentence
for the lesser included crime of murder in the second degree with a range of

sentence between or including 25 years and 45 years in prison with a 25-year
minimum mandatory sentence because he used a firearm. Ex. A at 49-52.
The plea form outlined that the judge would decide the sentence within the
agreed upon range, but Petitioner would have the opportunity to present

mitigating evidence and the state may present any aggravating evidence. Id.
at 49.
Regarding the plea document, Petitioner initialed each section of the
form. It reads, in pertinent part:

I hereby enter my plea of guilty to the lesser
included crime of murder in the second degree because

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I am guilty and because I feel it is in my best interest.
Before entering this plea of guilty, I was advised of the
nature of the charge against me, the statutory offenses
included within the charge, the range of allowable
punishments, the possible defenses to the charge,
circumstances in mitigation, and all other facts
essential to a broad understanding of the charge
against me.

. . . .

During the course of this case I have been provided the
police reports and other discovery and have thoroughly
discussed them with my attorney. I know what the
evidence is against me.

Before entering this plea of guilty, my attorney and I
have fully discussed all aspects of this case on several
occasions at the jail and in the courtroom. My
attorney has answered all my questions and has fully
explained the charge against me. I am satisfied with
the services that my attorney has rendered in this case
in my behalf. He has not refused or failed to answer
any of my questions, and I do not have any other
questions that need to be answered before I enter this
plea of guilty. My attorney has investigated every
aspect of this case that I have asked him to, and I am
not aware of any investigation which has not been
done properly. I believe he has obtained everything I
wanted him to. I specifically waive any further
discovery.

Id. at 49-50 (emphasis added).
Significantly, Petitioner initialed the portion which states: “I have had
sufficient time to consider the charge against me, the possible defenses, the
advice of my attorney, the waiver of constitutional rights by entering my plea

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of guilty and to reflect upon the consequences of my plea.” Id. at 51 (emphasis
added). Finally, Petitioner and his counsel signed the form. Id. at 52.

At the inception of the plea proceeding, Mr. Arnold announced that
Petitioner was pleading guilty with the understanding he would be adjudicated
guilty and sentenced with the range of 25-year minimum mandatory up to 45
years in prison. Ex. B at 13. Counsel noted that Petitioner had initialed

every paragraph and signed the form. Id. Petitioner, under oath, affirmed
that he was not under the influence of alcohol or drugs, he could read, write,
and understand the English language, and he did not presently or in the past
suffer from a mental illness. Id. at 13-14. The court advised Petitioner that

he faced a life sentence with a minimum mandatory 25 years in prison, but due
to the plea agreement, the court would impose a sentence which would be no
less than 25 years but no greater than 45 years. Id. at 14-15. Petitioner
confirmed that he understood. Id. at 15.

Certainly of import, when the court asked if there was any DNA evidence
in the case, the state responded in the affirmative and said, “it’s incriminating
in nature.” Id. Petitioner stated he had read the plea form, understood it,
and signed it. Id. at 15-16. The court reiterated the rights Petitioner was

giving up by pleading guilty, and Petitioner acknowledged that he understood
that he was giving up those rights, he had had sufficient time to discuss the

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case with Mr. Arnold, Petitioner had told Mr. Arnold everything Petitioner
knew about the case, Mr. Arnold had answered all of Petitioner’s questions

about the case, Petitioner was satisfied with Mr. Arnold’s representation, and
confirmed that no one had threatened, coerced or intimidated Petitioner to
plead guilty and no one had promised Petitioner that he would receive a
sentence other than one that falls within the agreed upon range. Id. at 16-17.

The state provided a factual basis for the plea:
Your Honor, on or between July 20th, 2007, and
July 21st, 2007, this defendant in Duval County,
Florida, did unlawfully and by act imminently
dangerous to another and evincing a depraved mind
regardless of human life did kill Kendra Alicia Brooks,
a human being, by shooting Miss Brooks, a firearm
was used, and it was discharged in such a manner that
it did cause death. All of that is contrary to Florida
Statutes 782.04 and 775.087.

Id. at 18.
Upon inquiry, the defense did not take exception to the factual basis for
the plea. Id. The court found a factual basis for the plea. Id. Additionally
the court found Petitioner had entered his plea of guilty freely and voluntarily
with a full understanding of the plea agreement and his constitutional rights,
and waiver of those rights. Id.
Just as promised, at the sentencing proceeding, Petitioner was allowed
to put on mitigating evidence and called seven witnesses to testify on his

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behalf. The state was allowed to put on aggravating evidence. Also of note,
Petitioner took the stand and was sworn as a witness. Ex. B at 67. He

admitted he was in fact guilty of the offense of murder in the second degree.
Id. He explained that he did not feel he was guilty of murder in the first
degree. Id. at 68. When asked to tell the judge what happened that night,
Petitioner attested:

A Well, I know we were walking to get my
daughter some formula, some diapers.

Q Was that a planned trip?

A Yes, we [Petitioner and Kendra Brooks] were
planning to get some formula, some diapers.

Q Was it like you met early and said get together
at 10:00 o’clock?

A No, she called me on the phone, said Marcus the
baby need [sic] some formula because she didn’t have
any more wick. So I said, I’ll come get it.

Q When you said wick, she had run out of food
stamp [sic]?

A (Nods.)

Q If you could for the court reporter say yes or no
because she’s taking everything down.

A Yes, ma’am.

Q So at some point you go out and you go to
Walgreens to get things for Karma, is that correct?

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A Yes, sir.

Q And then at some point during the evening the
two of you end up having a disagreement, what was
that about?

A About she her taking Karma away, moving down
to Tampa with some family members.

Q Had you previously discussed with Kendra she
was going to give you custody of Karma?

A Yeah, we discussed it. I went to do the leg work
with the lady – I forgot.

Q At Legal Aid?

A At Legal Aid, but she said she will agree, she
never signed. So kind of back and forth then.

Q Did you now – obviously Kendra is not here
today, we’re not here to disparage her, but did you
have some concerns about her having custody of
Karma?

A Yes, sir.

Q Okay. Just leaving it at that, moving on. Did
she during that evening back out of that agreement
with you?

A Yes, sir.

Q Do you as part of your training at the Navy and
such did you keep a firearm with you?

A No, sir.

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Q Did you happen to have a firearm with you that
night?

A Yes, sir.

Q Was that because something to do with your
training at the Navy or trying to keep up
marksmanship?

A No, sir.

Q Why did you have it?

A Just Jacksonville and some times possibility of
getting robbed or anything.

Q Okay.

A More of protection.

Q Okay. Now what – what happened?

A She started talking about her taking Karma
away from me, not getting my daughter. And we
started arguing. And I saw the firearm and I
picked it up and I shot her.

Q Did you reflect on that thought?

A No, sir.

Q Did you have any – did you have any control over
what you were doing at that moment?

A No, sir. I was in a different state of mind.
I really don’t know what happened verbatim that day
but I know at the end after I shot her I was looking at
her and I was kind of confused. I took off and that’s
what happened that night.

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Q Now, many times you and I have talked, you
said repeatedly to me you can’t believe it’s gotten to
this point. Tell the judge what you mean by that.

A I can’t believe I made a mistake that’s this big.
I can’t believe I even did anything like that.
That’s way out of my character, but I guess I just
clicked, went in a depraved state of mind and
this is the outcome of it.

Id. at 68-71 (emphasis added).
In closing, Mr. Arnold told the court that Petitioner was standing before
the court, “confessing to what he did in this matter.” Id. at 107. Mr. Arnold
noted there was a disagreement between Petitioner and Ms. Brooks, and
unfortunately, there was a firearm available, and Petitioner chose to use it.
Id. 109. Counsel emphasized that Petitioner was not blaming anyone else,
but he also was not a cold-blooded murderer. Id. Mr. Arnold explained,
Petitioner “pled appropriately after many months and negotiation with prior
counsel and I became involved which we were able to convince the State to
allow him to plead to a Second Degree Murder because that’s in essence what
we believe that he was guilty of.” Id. The court adjudicated Petitioner guilty
and sentenced him within the terms of the plea agreement to 45 years in prison
with a minimum mandatory of 25 years. Id. at 112.

16
Thus, the record demonstrates, Petitioner stated in his plea form he was
entering his plea of guilty “because I am guilty and because I feel it is in my

best interest.” Ex. A at 49. He also agreed that he had been advised of the
possible defenses to the charge and had sufficient time to consider the possible
defenses. Upon review of the plea colloquy, he knew he was facing a sentence
of life with a minimum mandatory sentence of 25 years. Ex. B at 14-15. In

reaching its decision to accept the plea, the trial court accepted the factual
basis for the plea as set forth by the state, without exception from the defense.
Petitioner never objected to the statement of the factual basis for the plea. He
avoided facing a life sentence by pleading to a negotiated sentence between or

including 25 and 45 years in prison. He received the benefit of the bargain.
Moreover, the court’s sentence was within the terms of the agreement.
Notably, after adjudication, Petitioner did not move to withdraw his plea.
Petitioner faces the formidable barrier of his sworn testimony and

representation at the plea hearing, the written statements in the signed plea
form, and his sworn testimony at sentencing. His solemn declarations are not
taken lightly and carry a strong presumption of verity. Petitioner’s
contentions to the contrary are wholly incredible in view of the record. Also,

his attempt to go behind his previously sworn testimony is not well received.

17
The record demonstrates that Petitioner was represented by various
counsel who undertook depositions and prepared for trial. Also of note, there

was, as described by the state, incriminating DNA evidence. Based on Mr.
Arnold’s statement at sentencing, the plea negotiations extended over many
months with prior counsel and continued with Mr. Arnold.2 Mr. Arnold said
he spoke with Petitioner many times. Mr. Arnold was able to convince the

state to allow Petitioner to plead to second-degree murder, the crime the
defense believed he was guilty of under the circumstances.
Significantly, at sentencing Petitioner described the incident as an
argument, and then Petitioner seeing the gun, picking it up, and shooting the

victim, without reflecting on his actions. He said when he acted, he was in a
depraved state of mind. He never testified there was any sort of a physical
struggle or that the victim grabbed a gun and Petitioner grabbed the gun from
the victim in an attempt to disarm her and to protect himself. See Petition at

7.
Petitioner raised his claim of ineffective assistance of counsel in the first
ground of his Second Amended Rule 3.850 motion. In undertaking its review,
the circuit court identified the performance and prejudice prongs, and noted as

2 Notably, the record shows, during the pendency of the criminal case, Petitioner had several
attorneys who undertook an investigation of the crime, filed motions, and took depositions.

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this was a claim of ineffective assistance of counsel relating to a guilty plea,
Petitioner had to demonstrate a reasonable probability that, but for counsel’s

errors, Petitioner would not have pleaded guilty and would have instead
insisted on going to trial. Ex. F at 85. Thus, Petitioner cannot satisfy the
“contrary to” test of 28 U.S.C. § 2254(d)(1) as the state court rejected the claim
based on the parameters set forth in Strickland and Hill. Furthermore,

Petitioner has failed to show that the state court unreasonably applied
Strickland and Hill or unreasonably determined the facts. Indeed, the state
court was objectively reasonable in its inquiry and the 1st DCA affirmed the
circuit court’s decision.

The trial court, in denying post-conviction relief, recognized that a guilty
plea does not waive a claim of ineffective assistance of counsel regarding
unknown defenses about which the defendant was not advised. Ex. F at 86.
However, the court also noted the strength and viability of the defense are

important factors that much be considered in assessing the probability that a
defendant would have actually risked trial on the basis of the particular
defense. Id. In its assessment, the trial court concluded that Petitioner had
failed to allege facts that would make a self-defense claim likely to succeed at

trial. Id. The court noted Petitioner left out significant details relevant to
claiming self-defense, including failure to explain why the disarmed victim

19
posed a threat to Petitioner and needed to be shot to prevent dire consequences.
Id.

The circuit court opined:
The Defendant now argues that the statements
he made at the sentencing hearing should not be used
to defeat his post-conviction claim because, at the time
he made those statements, he had not been advised
about the applicability of self-defense. This would
seem to imply that, had he known, he would have told
a different set of facts. He was under oath. He was
obligated to tell the truth. Whether he was aware of
the legal elements of self-defense, he could have told
the Court the victim got to the gun first and
threatened him, as he now claims. He did not. He
said, essentially, “I picked the gun up and I shot her
because I was angry.”
Id. at 88.
The court reasoned:
Where the Defendant’s motion fails to assert
specific facts supporting self-defense, where none of
the facts he told the Court under oath at sentencing
gave any hint of self-defense, and where he initially
lied to police about the shooting, the Court does not
find he has demonstrated he had a viable defense, a
defense he would have risked taking to trial had he
been advised about it. Counsel cannot be deemed
ineffective for failing to advise on what appears to be
an untenable defense.

Id.
In undertaking its review, the court found the following matters
significant. Petitioner originally denied being present at the scene and having

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any knowledge of the shooting and admitted to lying to the police. Id. at 87.
Therefore, he left himself open to being discredited, weakening any claim of

self-defense as he had failed to provide consistent versions of the events. Id.
Also of import, the circuit court referenced Petitioner’s sworn testimony given
at sentencing. Id. at 87-88. He testified he lied to the police, he knew he was
wrong, he was angry with the victim, it was a crime of passion and a mistake,

his gun was under the passenger seat, and he picked up the gun and he shot
the victim while she was outside of the car.3 Ex. B at 72-74. See Henry v.
State, 920 So. 2d 1245, 1246 (Fla. 5th DCA 2006) (a defendant is bound by the
statements he makes under oath and is not entitled to have a plea set aside by

relying on a claim that the plea was involuntary based on allegedly perjured
testimony). Here, any claim of self-defense would be untenable or so entirely
left open to being attacked and discredited that there was no objectively
reasonable probability that Petitioner would not have entered a plea had his

attorney undertook a self-defense investigation and advised Petitioner of such.
As noted by Respondents, Response at 32, a court is not obliged to upset
a plea based on post hoc assertions of an attorney’s deficiencies but rather
should look to contemporaneous evidence concerning the plea, which is what

3 Although given the opportunity to describe his version of the events, Petitioner never
attested that the victim picked up a gun, there was a struggle over the gun, he managed to
get the gun away from the victim, and then he shot the victim.

21
the circuit court did in this circumstance. Lee v. United States, 137 S. Ct.
1958, 1967 (2017). In assessing the plea colloquy, Petitioner’s statements on

the record during the colloquy, and the sentence obtained by the plea, the
circuit court found, “[u]nder a totality of the circumstances, the Defendant has
failed to demonstrate there was an objectively reasonable probability that he
would not have entered a plea had his attorney investigated a claim of self-

defense.” Ex. F at 89.
With regard to Petitioner’s assertion that private counsel wanted
additional money to investigate further and proceed to trial, forcing him to take
a plea, the court dismissed this excuse finding Petitioner qualified for a public

defender; therefore, Petitioner had the option to decline the plea offer and
proceed with appointed counsel. As such, the court rejected any contention
Petitioner was forced to enter a plea because his private counsel wanted
additional funds for going to trial. Id. The 1st DCA affirmed the decision of

the circuit court. Ex. L.
Petitioner complains he did not receive an evidentiary hearing in the
state courts. He asserts he is entitled to an evidentiary hearing. Petition at
10. Under these circumstances, Petitioner is not entitled to an evidentiary

hearing. See Harris v. Sec’y, Dep’t of Corr., No. 8:16-cv-3323-T-35AEP, 2020
WL 906183, at *12 (M.D. Fla. Feb. 25, 2020) (no need to hold a hearing or

22
appoint conflict-free counsel if claim conclusively refuted by record). In
rejecting Petitioner’s claim, the circuit court considered the totality of the

circumstances surrounding the plea while considering the written plea
agreement, the plea colloquy, Petitioner’s sworn testimony, and the sentence
imposed. Petitioner signed the plea form and gave sworn testimony accepting
the bargained for judgment and sentence. Apparently, in hindsight,

Petitioner now regrets his decision to plead guilty. Petitioner’s current
dissatisfaction with his bargained for sentence does not negate his sworn
testimony at the plea proceeding and at sentencing. Petitioner may not now
seek to go behind his sworn testimony. The record shows he received the

benefit of the bargain and is serving a sentence of 45 years, a sentence he was
advised he could receive upon entering his bargain and within the agreed upon
range. As such, Petitioner is not entitled to habeas relief on ground one of the
Petition.

Applying the look through presumption described in Wilson, the state
court’s ruling is based on a reasonable application of the law. The state court’s
adjudication of the claim is not contrary to or an unreasonable application of
Strickland and Hill or based on an unreasonable determination of the facts.

The circuit court considered the totality of the circumstances surrounding the
plea, including whether a particular defense was likely to succeed, the plea

23
colloquy, and the difference between the sentence imposed by the court under
the plea and maximum possible sentence Petitioner faced at trial.

Of note, the record shows, after months of negotiations, the defense was
able to obtain an agreement from the state to let Petitioner plead to murder in
the second degree and to a sentence within an agreed upon range, capped at
45 years. The record shows the plea colloquy was thorough, with the court

explaining the parameters of the agreement and that the court would sentence
Petitioner within the stated range. Petitioner may be dissatisfied with his
sentence, as he received a sentence at the high-end of the agreed upon range,
but he avoided facing a life-sentence and received the benefit of the bargain,

pleading out to second-degree murder and obtaining a sentence in the accepted
range. Petitioner is not entitled to habeas relief on ground one.
V. GROUND TWO
Ground Two: Defense counsel rendered ineffective assistance of
counsel by failing to object and move to disqualify the sentencing
judge when the sentencing judge expressed the belief that the
appropriate sentence was death.

The focus of this claim is based on one statement made by the sentencing
judge. Petitioner contends the statement at issue demonstrated the
sentencing judge was predisposed to impose the harshest sentence possible as
the judge already believed the appropriate sentence for the crime was death.

24
However, read in context, it is quite apparent that the statement was not an
expression of the sentencing judge that he believed the appropriate sentence

for Petitioner was death. An explanation follows.
The state called Komesha Cason, the victim’s aunt to testify at
sentencing. Ex. B at 84-85. She testified, in pertinent part:
Your Honor, Marcus Robinson still gets to have
a relationship with his daughter Karma. Although
he brutally murdered her mother, he still gives
something her family does not have. We know his
family will ensure he has a relationship with her, but
what about us, Your Honor. He still gets to
experience life, how is this possible? How can you
take another human being’s life and still be able to
endure breath yourself?

Id. at 89-90.
In pronouncing the sentence, after mentioning Petitioner’s wonderful
family of hardworking productive citizens, the court noted the disappointment
the family must feel in Petitioner’s actions. Id. at 111. The court continued:
Miss Cason summed it up best, how can you
take another’s life and still continue to live?
Once upon a time in America you didn’t live.
And once upon [a time] in America very few people got
killed by the use of firearms. We’re not going to solve
that problem today. But maybe there’s somebody in
your community, maybe there’s some elected official
that you can talk to, and maybe we can make America
a better place to be one day.

Id. (emphasis added).

25
The record shows the court recognized Ms. Cason’s comments and
dismay at the loss of her niece, noted historical norms of punishment, and then

mentioned the uptick of the use of firearms to commit crimes in America that
may need to be addressed by the community or by elected officials, but said the
matter would not be resolved in the courtroom that day. Id. The court then
sentenced Petitioner based on his plea to second-degree murder. In this case,

the victim died, the death was admittedly caused by the criminal and unlawful
act of Petitioner as he said he “went in a depraved state of mind” after the
victim told him she was taking their child to Tampa, and Petitioner picked up
a firearm in anger and shot the victim. Ex. B at 71. See United States v.

Jones, 906 F.3d 1325, 1329 (11th Cir. 2018), cert. denied, 139 S. Ct. 1202 (2019)
(the only meaningful difference between first- and second-degree murder is
first-degree murder requires premeditation).
Applying the Strickland and Hill standards, the circuit court denied this

claim of ineffective assistance of trial counsel. Ex. F at 89-90. The court
noted that a motion to disqualify a judge has to be well-founded and contain
facts showing the judge prejudged the case or exhibited undue bias, prejudice,
or sympathy. Id. at 89. The circuit court found there was no prejudgment as

the judge did not make any comments about the appropriate sentence until
after he heard from Petitioner and all of the witnesses for the defense and the

26
state. Id. at 90. Additionally, the circuit court found, the sentencing judge’s
“reference to the death penalty was a passing remark about historical norms

of punishment, not a comment on what he believed the Defendant should
receive.” Id.
Viewing the sentencing court’s comments in context, the court reflected
on the state’s witnesses’ comment, the historical norms of punishment, and the

increase in crimes involving firearms in America. He further stated that the
court was not going to resolve the problem of the unlawful use of firearms in
America as that was a matter to be addressed by community actors or
government officials. The court did not evince undue bias, prejudice or

sympathy or indicate through its comments that the court had prejudged the
Petitioner or made up its mind prior to the sentencing proceeding.
Indeed, the sentencing transcript shows Petitioner testified as to the
events leading up to the death of the victim, Ex. B at 68-73, but the court asked

for more details, making additional inquiries concerning what happened prior
to the shooting and Petitioner’s state of mind immediately before the shooting.
Id. at 73-74. More specifically, the court inquired as to Petitioner’s location
during the crime, the nature of the conversation which took place between

Petitioner and the victim, Petitioner’s state of mind at the time of the offense,

27
the location of the gun, and the location of the victim when Petitioner shot the
victim.

It is important to note that the state asked the court to sentence
Petitioner to 45 years in prison with a 25-year minimum mandatory sentence,
arguing that Petitioner’s sentence had been mitigated by allowing him to plead
to a second-degree felony with an agreed upon range. Id. at 102-103. The

defense asked for the minimum sentence under the agreement, 25 years in
prison. Id. at 110. The court, after hearing from Petitioner and his witnesses
in mitigation, hearing from the state’s witnesses, and then hearing argument
by counsel, sentenced Petitioner at the top of the range. Id. at 112.

The circuit court denied post-conviction relief, finding Petitioner failed
to demonstrate a reasonable probability that a motion to disqualify would have
been granted and Petitioner had not satisfied the Strickland standards. Ex.
F at 90. Petitioner appealed the denial of post-conviction relief and the 1st

DCA affirmed per curiam. Ex. L.
In denying post-conviction relief, the circuit court properly applied the
two-pronged Strickland standard of review. Thus, Petitioner cannot satisfy
the “contrary to” test of 28 U.S.C. § 2254(d)(1) as the state court rejected the

claim based on Strickland. Further, Petitioner has not shown the state court
unreasonably applied Strickland or unreasonably determined the facts.

28
Indeed, upon review, the state court was objectively reasonable in its
Strickland inquiry and in denying this ground for post-conviction relief.

Petitioner has failed to show a reasonable probability exists that the outcome
of his case would have been different if his counsel had given the assistance
that Petitioner has alleged he should have provided. Indeed, without
satisfying the performance and prejudice prongs as set forth in Strickland,

Petitioner cannot prevail on his claim of ineffective assistance of counsel.
Furthermore, the 1st DCA affirmed. Ex. L.
The 1st DCA’s decision, although unexplained, is entitled to AEDPA
deference. Applying the look through presumption described in Wilson, the

state’s court’s ruling is based on a reasonable determination of the facts and a
reasonable application of the law. In sum, the Court finds the state court’s
adjudication of this claim is not contrary to or an unreasonable application of
Strickland and its progeny or based on an unreasonable determination of the

facts. As such, Petitioner is not entitled to habeas relief on ground two of the
Petition.
VI. GROUND THREE
Ground Three: Defense counsel rendered ineffective assistance of
counsel by referencing, during the sentencing hearing, a transcript of
Tacoma Frazier’s deposition because the transcript contained a very
damaging statement – i.e., Ms. Frazier’s claim that the Defendant
threatened to kill her.

29
In his Second Amended Rule 3.850 motion, Petitioner raised a similar, if
not identical claim. He claimed defense counsel was ineffective for submitting
the deposition transcript of Ms. Frazier during sentencing. Ex. F at 36-37.
Petitioner asserted, had this not been done, the result of the sentencing

hearing would have been different as the transcript contained a highly
prejudicial statement that Petitioner had threatened to kill Ms. Frazier, his
girlfriend. Id.
The record demonstrates Mr. Arnold did not submit the deposition at

sentencing. Ex. B at 104. Instead, he referenced the deposition of Ms.
Frazier, “which has already been made part of the court record.” Id. Mr.
Arnold noted the deposition was already in the record and the court already
had a chance to look at it. Id. at 105. Mr. Arnold told the court he merely

wanted to point out that portion where Ms. Frazier was asked if Petitioner had
a violent reputation, and she responded no. Id. Mr. Arnold also noted Ms.
Frazier described Petitioner as a generally sweet person, without causing
problems, and a good father to his child. Id. Thereafter, counsel referenced

a letter from Shirley Robinson, Petitioner’s mother, which was tendered to the
court and the court said it would read the whole letter and then attach it to the
presentence investigation report. Id. at 105-107.

30
Following defense’s counsel presentation, the state interjected a
comment regarding Ms. Frazier’s deposition. The state noted it was not

asking the court to read the deposition contained in the court’s file, but wanted
to point out that portion of Ms. Frazier testimony where she stated Petitioner
threatened to kill her or do her as he did the victim if Ms. Frazier ever testified
against him. Id. at 107. Thereafter, the court heard closing arguments.

The circuit court, when addressing Petitioner’s post-conviction claim,
apparently confused the letter with the deposition. Ex. F at 90-91. The court
was correct, however, in recognizing that Petitioner’s counsel did not submit
Ms. Frazier’s deposition at sentencing. Id. at 91. The court concluded, “[t]he

deposition itself was not introduced into evidence so it does not appear counsel
was the one who introduced any harmful statements.” Id.
Of import, the court found no prejudice as it was clear from the court’s
announcement on the record that its reasons for imposing a lengthy sentence

were due to the nature of the crime itself: “the victim had been the Defendant’s
girlfriend and was the mother of his child and to the fact that a firearm was
used against a vulnerable victim.” Id. Additionally, the reviewing court
found that the sentencing court mentioned that Petitioner had other choices in

his life. Id. The reviewing court noted that the sentencing court, in
pronouncement of sentence, made no mention of Ms. Frazier’s deposition

31
testimony but did remark about Petitioner’s wonderful family. Id. As such,
the court held Petitioner had not demonstrated there was a reasonable

probability that, had counsel not introduced Ms. Frazier’s testimony (referred
to as the letter), the sentencing court would have imposed a lesser sentence.
Id. The 1st DCA affirmed. Ex. L.
To the extent the circuit court presented sound reasoning, although

apparently confused about the content of the deposition and the letter, this
Court gives AEDPA deference. The circuit court was correct in its finding that
the deposition was not submitted by defense counsel at sentencing. That is
clearly the case. Also, based on the record, it appears that the deposition was

referenced as already being in the record, meaning the court already had an
opportunity to review it and take its contents into consideration. Thus, Mr.
Arnold was not introducing something new that the court had not previously
had an opportunity to review; therefore, the state’s reference to the negative

portions of the deposition did not introduce novel information to the court.
In short, although Mr. Arnold referenced favorable content contained in
the deposition and the state referred to negative content in the deposition, the
circuit court concluded, based on the sentencing court’s pronouncement of its

decision, it chose to impose a lengthy sentence within the agreed upon range

32
based on the nature of the crime itself, not on extraneous comments by Ms.
Frazier.

The sentencing court, immediately before pronouncing sentence, said:
Mr. Robinson, there is absolutely no justification
in the world for killing somebody with a gun other
than self-defense. You killed a defenseless
person who was a mother of your child. You
should have married her and had a healthy life with
her like your mom and daddy did, but you didn’t choose
to do that.

So based on your plea of guilty I’ll adjudge you
to be guilty. Sentence you to serve 45 years Florida
State Prison with minimum mandatory of 25 years.

Ex. B at 111-12 (emphasis added).
Under these circumstances, the Court finds Petitioner’s counsel did not
perform deficiently and any alleged deficiency does not rise to the level of
presenting a reasonable probability that the outcome of the Petitioner’s
proceeding would have been different. Here, Petitioner has not shown a
reasonable probability exists that the outcome of the proceeding would have
been different if his lawyer had given the assistance that Petitioner has alleged
should have been provided, that is making no reference to Ms. Frazier’s
deposition during sentencing.
Thus, deference should be given to the state court’s decision. The court
applied the two-pronged Strickland standard; therefore, Petitioner cannot

33
satisfy the “contrary to” test of 28 U.S.C. § 2254(d)(1). Applying the look-
through presumption set forth in Wilson, the Court finds the state court’s

ruling is based on a reasonable determination of the facts and a reasonable
application of the law. In sum, the state court’s adjudication of this claim is
not contrary to or an unreasonable application of clearly established Federal
law or based on an unreasonable determination of the facts. As such, ground

three is due to be denied.
To the extent the state court’s decision is not entitled to AEDPA
deference, the Court finds Petitioner is not entitled to habeas relief. There is
no reasonable probability that, absent evidence of Petitioner’s threat to Ms.

Frazier, the sentencing court would have imposed a lesser sentence.
Petitioner had told the court there was an argument about the custody of the
child, he acted in anger - in a depraved state of mind, picked up a gun, and shot
the mother of his child. The court had just heard from the state’s numerous

witnesses concerning the impact on their lives due to the loss of the victim and
from the detective on the case concerning Petitioner’s denial of the crime and
his callous remarks to the detective.
To the extent Ms. Frazier, in her deposition, provided both negative and

positive comments about Petitioner which were brought to the sentencing
court’s attention, any negative impact was apparently offset by the positive

34
comments, resulting in the sentencing court’s stated reliance on the nature of
the crime itself in structuring its sentence. This Court is not convinced that

counsel’s decision to point out favorable testimony in Ms. Frazier’s deposition
amounted to ineffective assistance, even though the deponent did provide some
unfavorable testimony, referenced by the state. The weight of Ms. Frazier’s
testimony highlighted by counsel was favorable and supported the defense’s

contention that Petitioner’s isolated, violent act was an aberration, and he was
generally a sweet person and a good father.
As such, Petitioner has not satisfied the performance prong of
Strickland. Without a showing of specific errors of counsel undermining the

reliability of the proceeding, there is generally no basis for finding a Sixth
Amendment violation. Davis v. United States, Civil Action No. 14-00278-CG,
Criminal No. 11-00272-CG-N, 2015 WL 5162507, at *16 n.7 (S.D. Ala. Aug. 31,
2015) (not reported in F. Supp.) (citations omitted). See Stano v. Dugger, 921

F.2d 1125, 1153 (11th Cir.) (same), cert. denied, 502 U.S. 835 (1991). Here,
counsel performed within the bounds of reasonable competent counsel.
Assuming arguendo Petitioner has satisfied the performance prong of
Strickland, he has not demonstrated prejudice. It is evident that the sentence

was imposed based on the nature and circumstances of the second-degree
murder of Petitioner’s former girlfriend. In sentencing Petitioner, the judge

35
focused on Petitioner’s criminal conduct, including taking the life of a
defenseless person, the use of a firearm, and the vulnerability of the victim,

the mother of Petitioner’s child. Petitioner has not demonstrated that but for
counsel’s alleged error (referencing the deposition transcript during
sentencing), the outcome of the proceeding would have been different. As
such, Petitioner is not entitled to habeas relief on ground three.

Accordingly, it is now
ORDERED AND ADJUDGED:
1. The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED.
2. This action is DISMISSED WITH PREJUDICE.

3. The Clerk shall enter judgment accordingly and close this case.
4. If Petitioner appeals the denial of his Petition (Doc. 1), the Court
denies a certificate of appealability.4 Because this 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

4 This Court should issue a certificate of appealability only if a 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)). Upon due consideration, this Court will deny a certificate of appealability.

36
that may be filed in this case. Such termination shall serve as a denial of the
motion.
DONE AND ORDERED at Jacksonville, Florida, this 18th day of April,
2022.

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BRIAN. DAVIS
United States District Judge

sa 4/15
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Counsel of Record

37

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10109957. Public record. Not legal advice.