Campbell v. Secretary, Department of Corrections (Lee County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

TYRONE CAMPBELL,

Petitioner,

v. Case No. 2:19-cv-334-JES-NPM

SECRETARY, FLORIDA DEPARTMENT

OF CORRECTIONS,

Respondent.

OPINION AND ORDER

This cause is before the Court on a 28 U.S.C. § 2254 petition

for habeas corpus relief filed by Petitioner Tyrone Campbell

(“Petitioner”). (Doc. 1). At the Court’s order (Doc. 15),

Respondent filed a Response. (Doc. 13). Despite having an

opportunity to do so, Petitioner did not file a reply.

Upon careful consideration of the pleadings and the state

court record, the Court concludes that none of Petitioner’s claims

entitle him to federal habeas corpus relief. Because the Court

was able to resolve the petition on the record, an evidentiary

hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465,

474 (2007).

I. Background and Procedural History

On June 17, 2011, a jury found Petitioner guilty of one count

of second degree murder. (Doc. 20-5 at 790–91). The trial court

sentenced Petitioner to life in prison with a mandatory minimum

term of 25 years. (Doc. 20-3 at 266–71). Florida’s Second

District Court of Appeal (“Second DCA”) affirmed the judgment and

conviction without comment. (Doc. 20-6 at 85).

Thereafter, Petitioner filed a motion and an amended motion

under Rule 3.850 of the Florida Rules of Criminal Procedure (“Rule

3.850 Motion”). (Doc. 20-7 at 4—62, 136–86). The postconviction

court entered an order granting an evidentiary hearing on three of

Petitioner’s grounds, and denying the remaining grounds. (Doc.

20-8 at 46–51.) The court held a hearing on March 27–28, 2017.

(Id. at 333–402). Petitioner, through Counsel, withdrew one

ground for relief at the evidentiary hearing (Id. at 335) and the

postconviction court denied the remaining grounds in a written

order. (Id. at 282–88). Florida’s Second DCA affirmed per curiam

without a written opinion. (Doc. 20-9 at 85).

Petitioner provided his federal habeas petition to prison

officials for mailing on May 13, 2019. (Doc. 1).1

II. Governing Legal Principles

A. The Antiterrorism Effective Death Penalty Act

(“AEDPA”)

Under the AEDPA, federal habeas relief may not be granted

with respect to a claim adjudicated on the merits in state court

unless the adjudication of the claim:

1 Under the “mailbox rule,” a pleading is considered filed

by an inmate on the date it was delivered to prison authorities

for mailing, which—absent contrary evidence—is the date it was

signed. Washington v. United States, 243 F.3d 1299, 1301 (11th

Cir. 2001). In this case, the petition was stamped as provided

to officials for mailing on May 13, 2019. (Doc. 1 at 1.)

(1) resulted in a decision that 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) resulted in a decision that 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). When reviewing a claim under §

2254(d), a federal court must presume that any “determination of

a factual issue made by a State court” is correct. Id. § 2254(e).

The petitioner bears “the burden of rebutting the presumption of

correctness by clear and convincing evidence.” Id. “Clearly

established federal law” consists of the governing legal

principles set forth in the decisions of the United States Supreme

Court at the time the state court issued its decision. White v.

Woodall, 572 U.S. 415, 420 (2014); Carey v. Musladin, 549 U.S. 70,

74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

A decision is “contrary to” clearly established federal law

if the state court either: (1) applied a rule that contradicts

the governing law set forth by Supreme Court case law; or (2)

reached a different result from the Supreme Court when faced with

materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144,

1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an “unreasonable application”

of the Supreme Court’s precedents if the state court correctly

identifies the governing legal principle, but applies it to the

facts of the petitioner’s case in an objectively unreasonable

manner, Brown v. Payton, 544 U.S. 133, 134 (2005), or “if the state

court either unreasonably extends a legal principle from [Supreme

Court] precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply.” Bottoson v. Moore, 234 F.3d 526, 531

(11th Cir. 2000) (quoting Williams, 529 U.S. at 406).

The section 2254(d) standard is both mandatory and difficult

to meet. To demonstrate entitlement to federal habeas relief, the

petitioner must show that the state court’s ruling was “so lacking

in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” White, 572 U.S. at 420 (quoting Harrington v.

Richter, 562 U.S. 86, 103 (2011)).

A state court’s summary rejection of a claim, even without

explanation, qualifies as an adjudication on the merits—warranting

deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.

2008). Generally, in the case of a silent affirmance, a federal

habeas court will “look through” the unreasoned opinion and presume

that the affirmance rests upon the specific reasons given by the

last court to provide a reasoned opinion. See Ylst v. Nunnemaker,

501 U.S. 797 (1991); Wilson v. Sellers, 138 S. Ct. 1188 (2018).

However, the presumption that the appellate court relied on the

same reasoning as the lower court can be rebutted “by evidence of,

for instance, an alternative ground that was argued [by the state]

or that is clear in the record” showing an alternative likely basis

for the silent affirmance. Sellers, 138 S. Ct. at 1196.

B. Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established

a two-part test for determining whether a convicted person is

entitled to relief on the ground that his counsel rendered

ineffective assistance. 466 U.S. 668, 687–88 (1984). A

petitioner must establish that counsel’s performance was deficient

and fell below an objective standard of reasonableness and that

the deficient performance prejudiced the defense. Id. This is a

“doubly deferential” standard of review that gives both the state

court and the petitioner’s attorney the benefit of the doubt.

Burt v. Titlow, 571 U.S. 12, 15 (2013) (citing Cullen v.

Pinholster, 131 S. Ct. 1388, 1403 (2011)).

The focus of inquiry under Strickland’s performance prong is

“reasonableness under prevailing professional norms.” Id. at 688.

In reviewing counsel’s performance, a court must adhere to a strong

presumption that “counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689 (citation

omitted). A court must “judge the reasonableness of counsel’s

challenged conduct on the facts of the particular case, viewed as

of the time of counsel’s conduct,” applying a highly deferential

level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470,

477 (2000) (quoting Strickland, 466 U.S. at 690). Proving

Strickland prejudice “requires showing that counsel’s errors were

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

whose result is reliable.” Strickland, 466 U.S. at 687.

C. Exhaustion

The AEDPA precludes federal courts, absent exceptional

circumstances, from granting habeas relief unless a petitioner has

exhausted all means of available relief under state law. 28 U.S.C.

§ 2254(b)(1). Exhaustion of state remedies requires that the

state prisoner “fairly presen[t] federal claims to the state courts

in order to give 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).

A petitioner can avoid the application of the exhaustion

rules by establishing objective cause for failing to properly raise

the claim in state court and actual prejudice from the alleged

constitutional violation. Spencer v. Sec’y, Dep’t of Corr., 609

F.3d 1170, 1179–80 (11th Cir. 2010). To show cause, a petitioner

“must demonstrate that some objective factor external to the

defense impeded the effort to raise the claim properly in state

court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To

show prejudice, a petitioner must demonstrate a reasonable

probability the outcome of the proceeding would have differed.

Crawford v. Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002).

A second exception, known as the “fundamental miscarriage of

justice,” only occurs in an extraordinary case, where a

“constitutional violation has probably resulted in the conviction

of one who is actually innocent[.]” Murray v. Carrier, 477 U.S.

478, 479–80 (1986).

III. Discussion

To provide context for the claims raised in this petition,

the relevant facts surrounding this case, taken from Petitioner’s

brief on direct appeal,2 are summarized as follows:

Debrena Walker was killed in her home in Ft.

Myers on February 21, 2008. According to the

medical examiner, she suffered four gunshot

wounds and blunt trauma . . . The medical

examiner believed that Ms. Walker was either

crouching or kneeling when shot in the back.

She was not sexually assaulted.

Mr. Campbell was Ms. Walker’s boyfriend for

about a year, and the father of one of her

children. He had lived at Ms. Walker’s home

for about eight months.

Two of Ms. Walker’s neighbors, both of whom

knew Mr. Campbell from the time he lived with

her, testified over objection about arguments

involving Mr. Campbell which occurred before

February 21. Jerrett Williams testified that

a few days prior to that date he saw Mr.

Campbell putting his clothes into a car. He

and Ms. Walker were yelling and screaming, and

Mr. Campbell threw a trash can []towards Ms.

Walker. Another time Ms. Walker ran to him

when Mr. Campbell chased her. Williams

testified that the two often argued, but he

never saw Mr. Campbell hit Ms. Walker. He

admitted he was on medication and his mind was

2

In its answer brief, the State accepted Petitioner’s

statement of facts. (Doc. 2-6 at 44).

“not as right” as three years ago when the

incidents occurred.

David Snyder testified that he saw them argue

on the Saturday before the shooting when Mr.

Campbell was loading clothes into a car. Mr.

Campbell wanted a necklace, and during the

argument said “I’ll kill you” to Ms. Walker.

He too testified that while they often argued,

he never saw Mr. Campbell hit Ms. Walker.

Ms. Walker’s next door neighbor, Michael

Brown, testified that he knew Mr. Campbell.

Mr. Campbell and Ms. Walker argued constantly.

Once Mr. Campbell mentioned that he thought

Ms. Walker was seeing someone else. Brown saw

Mr. Campbell looking in the window of Ms.

Walker’s home two days prior to the shooting

at 5:30 a.m. Brown was home on the afternoon

of February 21. He heard what he thought were

3-4 pops, like fireworks, at about 4:30 p.m.

Looking over at Ms. Walker’s residence, he saw

Mr. Campbell - and no one else - come out of

the front door, with a white towel in his hand.

Mr. Campbell got into a car that had two other

people in it.

A short while later when Courtney Walker, Ms.

Walker’s teenage daughter, came home from

school, Mr. Brown told her what he had seen.

Courtney went in the home, and came out

screaming. Mr. Brown then called 911. A

paramedic testified that Ms. Walker was dead

when he arrived.

Courtney testified her mother and Mr. Campbell

often argued, and that he would leave and come

back. She never saw him hit her mother. They

had argued the week prior, when her mother had

packed Mr. Campbell’s clothes. At about 7 :00

a.m. on February 21, Mr. Campbell was at the

house, sleeping on the couch, but Ms. Walker

was trying to get him to leave. Courtney went

to school at 8:00 a.m. When she came home that

afternoon, she discovered her mother’s body.

The police found two projectiles at the scene.

Ms. Walker had pieces of a burnt plastic bag

on her, and the police believed the firearm

was fired through the bag.

Mr. Campbell was located in a vacant house in

Ft. Myers on March 10, 2008. He had on a wig,

gave the police three fake names, and tried to

speak with a foreign accent.

(Doc 20-6 at 11–15)(internal citations to the record omitted and

slight alterations made for clarity).

Petitioner now raises eight grounds of ineffective assistance

of trial counsel, Edward J. Kelly (“Counsel”). These grounds are

exhausted to the extent they were raised in Petitioner’s Rule 3.850

Motion and considered by Florida’s Second DCA on direct appeal.3

The Second DCA’s summary rejection of the grounds raised in the

postconviction court—even without explanation—qualifies as an

adjudication on the merits, warranting deference. Therefore, to

the extent the claims were exhausted, this Court will “look

through” the Second DCA’s decision to the postconviction court’s

rationale for denying these claims. Sellers, 138 S. Ct. at 1196.

A. Ground One

Petitioner asserts that Counsel was ineffective for failing

to ask for a continuance or recess so that the defense could adjust

faulty video equipment and play a defense video for the jury’s

viewing. (Doc. 1 at 5). Specifically, Petitioner asserts that

3

In his habeas petition, Petitioner asserts that these are

the same issues as raised in his Rule 3.850 Motion. (Doc. 1 at

10, 16, 21, 27, 33, 37, 42–43, 48). However, it appears that

Petitioner did not properly exhaust Grounds Two or Seven. The

Court will individually address the exhaustion of these grounds.

“the defense had prepared a video reenactment of the crime scene

and the neighbor’s side view of the house next door, and the video

recording was poor quality.” (Id.) Petitioner notes that

State’s witness Michael Brown testified that he saw Petitioner

exit the victim’s home after hearing gunshots. He now argues that

the video, if played in full, would have demonstrated that Mr.

Brown had an obstructed view, and as a result, his identification

of Petitioner as the person who left the victim’s home was

unreliable. (Id. at 7).

Petitioner raised this ground in his Rule 3.850 Motion, and

the postconviction court denied it on both Strickland prongs

without an evidentiary hearing:

Defendant has not satisfied the first prong of

Strickland. Defendant has merely claimed that

the video did not play correctly in its

entirety and therefore, his counsel’s

performance was “deficient,” and his counsel’s

“deficient performance” prejudiced his case.

Defendant ignores the remaining cumulative

weight of the State’s evidence presented at

trial. Even if the jury saw the video from

beginning to end it is not probable the

“results of the proceeding would have been

different.” Strickland at 694. That is

because the video evidence did not negate the

fact that Mr. Brown testified he could view a

person exiting the victim’s front porch area.

Defendant’s claim that the jury may have

viewed the non-operating video as a ruse is

without merit. The jury clearly saw that the

video contained content and were aware that

the video presentation was problematic.

Ultimately, the defense team was able to get

their point before the jury--the view from Mr.

Brown’s home was not completely unobstructed.

The jury was able to balance this evidence

against that provided by the State and as the

verdict illustrates, the jury chose to find

the Defendant guilty. The Defendant’s claim

does not rise to the level [of] Strickland and

is based upon mere speculation. Jones v.

State, 845 So.2d 55, 65 (Fla. 2003), citing

Mararaj v. State, 778 So. 2d 944, 951 (Fla.

2000). His request for an evidentiary hearing

on Ground 1 will be denied.

(Doc. 20-8 at 43–44) (internal citations to the record omitted).

A review of the record supports the state court’s conclusions on

both the performance and prejudice prongs of Strickland.

At trial, witness Michael Brown, who lived next door to the

victim, testified that around the time of the shooting, he heard

“something that sounded like fireworks or something outside.”

(Doc. 20-5 at 23, 27–28) He looked out of his bedroom window and

“saw a car come around and stop a couple houses down, and then I

saw Mr. Campbell come out and get into the car and leave.” (Id.

at 23, 26–27). The man he saw was holding a white towel. (Id.

at 27). Mr. Brown testified that there were no obstructions

between his window and the pathway from the victim’s door. (Id.

at 28). Mr. Brown telephoned his fiancé to tell her he heard

something, and he went to his side yard to see if anyone else came

from the victim’s house. (Id. at 32–33). About ten minutes

later, he saw the victim’s daughter, Courtney, returning from

school. He told her what he had heard and observed and asked

whether she wanted him to walk to the door with her. (Id. at 33).

Courtney “laughed it off,” and entered the home alone, but ran out

“screaming and crying” less than a minute later. (Id. at 34).

Mr. Brown called the police. (Id. at 35). He identified

Petitioner as the person he saw leaving the victim’s home. (Id.

at 37).

Counsel attempted to lessen the impact of Mr. Brown’s

testimony by calling private investigator Edward Lopez as a

witness. (Doc. 20-5 at 490). Mr. Lopez took a video from (or

near) the window that Mr. Brown looked from when he witnessed

Petitioner leave the victim’s home. (Id. at 492–93). Counsel had

some difficulty getting the video to play. (Id. at 504). Because

it was close to 5:00 p.m., the trial court offered to let Counsel

play the video the following day. (Id. at 505). The next morning,

the defense began playing the video—with Mr. Lopez narrating—but

the video stopped playing at “the window with the view towards the

residence where the scene took place.” (Id. at 593). Counsel was

unable to restart the video, so he asked the Court to allow him to

question Mr. Lopez about his observations. (Id. at 597). Mr.

Lopez testified that the line of sight from Mr. Brown’s window

would not allow the viewer to see the front of anyone leaving the

victims home. Counsel questioned Mr. Lopez as follows:

Q. All right. And what else could you see

as far as angle of a person coming out of

the house next door, 1221 Pondella?

A. You could see anyone that came out, not

from the door, but you could see one step

off of the front porch.

Q. And can you describe the view a person

would have from Mr. Brown’s perspective

of a person walking out to Pondella

Circle?

A. You would see I guess the side of the

person going out towards Pondella.

Q. Okay. And then if that person took a

left on Pendella, what would you see from

Mr. Brown’s perspective?

A. You would see the back of that person.

(Doc. 20-5 at 600). On cross-examination, Mr. Lopez testified

that brush, which he observed in pictures on the Lee County

property appraiser websites since 2007, may have obscured the view

from Mr. Brown’s bedroom window. (Id. at 602). In closing,

Counsel argued that Mr. Brown’s identification was not reliable.

(Id. at 663–67). He noted that Mr. Brown had only a back view

of the person leaving the house, and only for a few seconds. (Id.

at 663–64). Counsel argued that Mr. Brown assumed that the person

leaving the house was Petitioner “because that’s who lives there,

and he’s walking quickly.” (Id. at 665). He pointed out that Mr.

Brown described the car the man entered, the occupants of the car,

and the color of the towel the man was holding, yet he could not

identify the colors of the shirt or pants he was wearing. (Id.

at 666).

Petitioner now argues that the full video presentation “would

have shown that the view of [Mr. Brown’s] side window was

obstructed, which made the witness being able to positively

identif[y] this Petitioner virtually impossible and so casting

reasonable doubt into the mind of the impaneled jury.” (Doc. 1

at 7). Petitioner merely speculates that the jury would have

rendered a not-guilty verdict had the entire video been played.

He did not actually provide the full video to the postconviction

court, nor does he do so here. “Strickland places the burden on

the defendant, not the State, to show a ‘reasonable probability’

that the result would have been different” had Counsel performed

as Petitioner now argues he should have. Wong v. Belmontes, 558

U.S. 15, 27 (2009) (quoting Strickland, 466 U.S. at 694). In

other words, it is Petitioner’s burden on habeas review to offer

the video that he believes exonerates him. Mere speculation that

favorable evidence may exist is insufficient to show either

deficient performance or prejudice. See Jones v. State, 845 S.

2d 55, 64 (Fla. 2003) (“Postconviction relief cannot be based on

speculative assertions”); Tejada v. Duggar, 941 F.2d 1551, 1559

(11th Cir. 1991) (vague, conclusory, or unsupported allegations

cannot support an ineffective assistance of counsel claim).

Moreover, Counsel was able to elicit the same information

from Mr. Lopez’s testimony that he now argues could have been shown

in the video—namely that the view from Mr. Brown’s window would

have shown only the back or side of the man leaving the home and

that brush partially obscured even that view. Counsel is not

ineffective for failing to present duplicative or redundant

evidence. See Van Poyck v. Florida Dep’t of Corr., 290 F.3d 1318,

1324 n.7 (11th Cir. 2002) (“A petitioner cannot establish

ineffective assistance by identifying additional evidence that

could have been presented when that evidence is merely

cumulative.”).

Finally, Counsel chose not to further delay the trial by

asking for a continuance and to instead elicit the same information

through Mr. Lopez’s testimony. (Doc. 20-5 at 596–97). This Court

must “be highly deferential to those choices . . . that are

arguably dictated by a reasonable trial strategy.” Devier v.

Zant, 3 F.3d 1445, 1450 (11th Cir. 1993). That Petitioner now

disagrees with Counsel’s decision does not overcome the strong

presumption that “counsel’s performance was reasonable and

adequate.” Atkins v. Singletary, 965 F. 2d 952, 958 (11th Cir.

1992).

Petitioner has demonstrated neither deficient performance nor

resulting prejudice from Counsel’s decision not to seek a

continuance to repair the video. The state court’s adjudication

of Ground One did not implicate either prong of section 2254(d),

and Petitioner is not entitled to federal habeas corpus relief on

Ground One.

B. Ground Two

Petitioner asserts that Counsel was ineffective for failing

to secure Malissa Estate, Shakitta Battle, Pearie Derville, and

Danna as alibi witnesses. (Doc. 1 at 11). He asserts that

postconviction counsel misadvised him to withdraw this ground at

the evidentiary hearing. (Id. at 14). He also argues that the

claim was exhausted in state court because it was “intermingled”

with claim three. (Id.)4

Postconviction counsel announced at the hearing on

Petitioner’s Rule 3.850 Motion that the defense was withdrawing

Ground Two “relating to alibi witnesses.” (Doc. 20-8 at 335–36).

Therefore, instead of developing this claim in state court as

required by 28 U.S.C. § 2254(b)(1)(A), Petitioner expressly

abandoned it. As a result, it is unexhausted and procedurally

defaulted. See Morris v. Kemp, 809 F.2d 1499, 1502–03 (11th Cir.

1987) (affirming district court’s dismissal of a claim raised in

a state habeas petition but waived at the evidentiary hearing on

the petition, stating that “Petitioner thus committed a procedural

default when he failed to assert his ineffective assistance claim

in his first [state] habeas proceeding, preferring to stand on his

claim of attorney-client privilege”); see also Wong Doo v. United

States, 265 U.S. 239, 241 (1924) (“The petitioner had full

opportunity to offer proof of it at the hearing on the first

petition, and, if he was intending to rely on that ground, good

faith required that he produce the proof then. To reserve the

proof for use in attempting to support a later petition, if the

4

In Ground Three, Petitioner alleges that Counsel was

constitutionally ineffective for advising him against testifying

at trial.

first failed, was to make an abusive use of the writ of habeas

corpus.”).

In the final order denying the Rule 3.850 Motion, the

postconviction court dismissed Ground Two with prejudice because

“[p]ostconviction counsel withdrew this ground at the evidentiary

hearing.” (Doc. 20-8 at 284). Nevertheless, Petitioner

challenged the denial on direct appeal. (Doc. 20-9 at 12–15).

The Second DCA issued a silent affirmance, and the Court presumes

that the appellate decision rests on the procedural default rather

than on the merits. See Bennett v. Fortner, 863 F.2d 804, 807

(llth Cir. 1989)(“[W]hen a procedural default is asserted on appeal

and the state appellate court has not clearly indicated that in

affirming it is reaching the merits, the state court’s opinion is

based on the procedural default.”).

The Court need not consider whether cause exists for failing

to exhaust this claim because even if exhausted, Petitioner is not

entitled to federal habeas relief. See 28 U.S.C. § 2254(b)(2)

(“An application for a writ of habeas corpus may be denied on the

merits, notwithstanding the failure of the applicant to exhaust

the remedies available in the courts of the State.”) This is

because Petitioner merely speculates that any of these witnesses

would have testified and would have testified favorably. He has

not offered sworn testimony from any of the alibi witnesses

detailing what they would have said. See Johnson v. Alabama, 256

F.3d 1156, 1187 (11th Cir. 2001) (“Johnson offers only speculation

that the missing witnesses would have been helpful. This kind of

speculation is ‘insufficient to carry the burden of a habeas corpus

petitioner.’”) (quoting Aldrich v. Wainwright, 777 F.2d 630, 636

(11th Cir. 1985)); see also United States v. Ashimi, 932 F.2d 643,

650 (7th Cir. 1991) (“[E]vidence about the testimony of a putative

witness must generally be presented in the form of actual testimony

or by the witness or on affidavit. A defendant cannot simply

state that the testimony would have been favorable; self-serving

speculation will not sustain an ineffective assistance claim.”).

Without such a showing, Petitioner cannot demonstrate Strickland

prejudice. See Jones v. State, 845 So. 2d 55, 64 (Fla. 2003)

(“Postconviction relief cannot be based on speculative

assertions.”); Tejada, 941 F.2d at 1559. Therefore, in addition

to being dismissed as unexhausted, Ground Two is denied on the

merits.

C. Ground Three

Petitioner asserts that Counsel was constitutionally

ineffective for advising him against testifying at trial. (Doc.

1 at 18). Specifically, he asserts that Counsel advised him not

to testify because the jury “would be told of Petitioner’s prior

convictions” if he did so. (Id. at 21–21). He asserts that his

testimony, combined with the testimony of the missing alibi

witnesses, would have resulted in a different outcome at trial.

(Id. at 21).

Petitioner raised this claim in his Rule 3.850 Motion, and

after an evidentiary hearing at which both Petitioner and Counsel

testified, the postconviction denied the claim in a written order.

(Doc. 28-8 at 284–86). The court summarized the testimony of both

Petitioner and Counsel and found that:

[T]he testimony of [Counsel] is more credible

than that of Defendant. The Court finds that

the advice given by [Counsel] was accurate,

and that [Counsel’s] performance was not

deficient. There is no prejudice as there is

no reasonable probability of a different

outcome because Defendant was correctly

advised and voluntarily chose not to testify

based on that correct advice. Defendant has

failed to meet his burden of establishing both

prongs of Strickland.

(Id. at 285–86). The state court’s conclusion that Counsel’s

testimony was more credible than Petitioner’s is a finding of fact,

entitled to deference in this Court. See Consalvo v. Sec’y, Dep’t

of Corr., 664 F.3d 842, 845 (11th Cir. 2011) (“We consider

questions about the credibility and demeanor of a witness to be

questions of fact.”); Marshall v. Lonberger, 459 U.S. 422, 434

(1983) (recognizing that federal habeas courts have “no license to

redetermine credibility of witnesses whose demeanor has been

observed by the state trial court, but not by them”).

The postconviction court’s finding that Counsel’s advice was

correct is also entitled to deference. See Strickland, 466 U.S.

at 689 (recognizing that counsel’s strategic choices are

“virtually unchallengeable”). At the evidentiary hearing, Counsel

testified that he did not think it would have benefitted Petitioner

to testify because “[h]e had prior felony convictions, and . . .

he had given a detailed statement to the police concerning this

event.” (Doc. 20-8 at 372–73). He denied telling Petitioner that

the jury would hear about the facts of his prior convictions.

(Id. at 373). He testified that he “absolutely” told Petitioner

that the decision to testify was “ultimately” his (Petitioner’s)

decision and that Petitioner never told him that he had changed

his mind and wanted to testify. (Id. at 374–75). Counsel stated

that, had Petitioner told him he wanted to testify, “[h]e would

have testified.” (Id. at 375).

At bottom, Counsel made a tactical decision to advise

Petitioner against testifying at trial, and Petitioner chose to

take that advice. The state courts’ rejection of Ground Three was

neither contrary to Strickland nor based on an unreasonable

determination of the facts, and Petitioner is not entitled to

federal habeas corpus relief on Ground Three.

D. Ground Four

Petitioner asserts that Counsel was ineffective for failing

to convey a plea offer proposed by the State. (Doc. 1 at 22). He

also paradoxically asserts that he rejected the State’s plea offer

of thirty years’ incarceration because Counsel did not advise him

that he faced of maximum sentence of life without the possibility

of parole if he proceeded to trial. (Id.)

Petitioner raised this claim in his Rule 3850 Motion, and the

postconviction court again found Petitioner’s testimony to be less

credible than Counsel’s. (Doc. 20-8 at 287–88.) The state court

summarized the testimony and denied the claim as follows:

Defendant argued that trial counsel was

ineffective for failing to convey a plea offer

and failing to advise him as to the maximum

sentence. Defendant testified that a 30 year

plea offer was conveyed by prior counsel, and

he wanted to take that offer. He told

[Counsel] about that offer and wanting to

accept it, and [Counsel] said he would look

into it.

Defendant believed he was forced to go to

trial, because [Counsel] said the offer was

not on the table. Defendant stated he did not

know what happened to the offer, because the

case was assigned to a different judge, and he

was not given a chance to entertain it.

On cross examination, Defendant testified that

he would have accepted the plea for the sake

of his family even though he maintained his

innocence. [Counsel] did not tell him about

the plea offer conveyed to him by prior

counsel. Defendant stated he was confused

because the case went through different

judges, different prosecutors, and five or six

defense attorneys. Defendant testified that

he believed the maximum sentence was 25 years

from the scoresheet. He knew the offense was

punishable by life, but the scoresheet said 25

years, so he thought the punishable by life

sentence applied if he went to trial and was

convicted.

[Counsel] testified that he never saw a plea

offer noted in the file. Defendant never

mentioned a plea offer to him, or said a plea

offer had been made by the prior prosecutor.

The prosecutor never gave him a plea offer.

He stated that he knew the case was going to

trial due to the fact that there was no plea

offer, the minimum mandatory sentences, and

the facts of the case. [Counsel] testified

that he told Defendant he would probably

receive a life sentence due to the facts of

the case, and it was unlikely he would receive

a term of years. He stated he asked the

prosecutors, and there was no plea offer. He

did not recall if the trial court asked if a

plea offer had been made. He did not recall

talking to prior counsel about a plea offer,

but stated his impression was there was not a

plea offer.

The record reflects that the trial court

inquired about the existence of a plea offer

on October 19, 2010, June 13, 2011, and June

14, 2011, and was told there was no plea offer.

Relevant portions of those transcripts are

attached. The record supports [Counsel’s]

testimony that there was no plea offer

extended while he was appointed. Further, the

fact that Defendant did not ask about an

alleged prior plea offer on any of these

occasions undermines Defendant’s credibility.

If, as Defendant testified, he was confused by

the change in dockets and attorneys, and he

believed a plea offer had been made that he

wished to accept, he should have spoken up to

ask about it when it was stated there was no

offer on each of those three occasions.

Further, if there was a prior plea offer,

Defendant admitted it had been conveyed by

prior counsel. The Court notes that Defendant

testified that he did not have sufficient time

to “entertain” the alleged offer prior to the

change to another docket. There would be no

prejudice to Defendant by [Counsel] not also

conveying that plea offer, since the new

prosecutor did not choose to renew or adopt

that alleged offer and there was no offer made

while Mr. Kelly was appointed. If a prior plea

offer did exist, Defendant has not met the

second prong of Alcorn v. State, 121 So.3d 419

(Fla. 2013), that the prosecutor would not

have withdrawn the offer.

To the extent Defendant argued [Counsel]

misadvised him about the maximum sentence,

[Counsel] testified that he told Defendant he

would probably receive a life sentence and

that a term of years was unlikely. Since the

maximum sentence was life in prison, this was

accurate advice. Given Defendant’s criminal

history, his testimony that he believed the

maximum sentence was 25 years despite knowing

the offense was punishable by life is not

credible.

The Court finds [Counsel’s] testimony more

credible than that of Defendant. The Court

finds that [Counsel’s] performance was not

deficient, and he did not fail to convey a

plea offer or misadvise Defendant regarding

the maximum sentence. Defendant has failed to

meet his burden of establishing both prongs of

Strickland.

(Id.). The record supports the postconviction court’s rejection

of this claim.

First, although Petitioner now argues that Counsel never told

him of a plea offer, Petitioner testified that he informed Counsel

of the plea, and Counsel said he “would look into it.” (Doc. 20-8

at 339). Petitioner was also unclear as to whether the plea offer

came from Counsel or from prior defense counsel, but he noted he

did not have enough time to think about it before the State took

the offer off the table. (Id. at 343). When pressed by the State

about the inconsistencies between the statements made in his motion

and his evidentiary hearing testimony, the following exchange

occurred:

Q. Isn’t it true, Mr. Campbell, that in your

motion for postconviction relief your

ground three claim is actually that

[Counsel] failed to even tell you about

a 30-year plea offer?

A. Yeah. He failed to tell me about it,

because when I was talking to him about

it when he first got my case, my case

went from one panel to the next, and he

failed to disclose I mean, whatever they

had for me available he was just

coming to visit me or whatever making me

know that he was my counsel and, you

know, it was so much stuff to be done

with my case as far as depositions, may

case was like –

Q. Okay, Mr. Campbell, I don’t want to get

off track here. Didn’t you testify on

direct that you actually discussed a 30-

year plea offer with Mr. Campbell?

A. With Mr. Campbell?

Q. I mean – sorry. Isn’t it true you

discussed the 30-year plea offer with

your attorney, Mr. Kelly?

A. Yes, Ma’am

Q. Okay. So do you find that it was

misleading that as part of your ground

for postconviction relief you said that

your attorney failed to convey that offer

to you, that you weren’t even aware of

the offer?

A. Ma’am, I don’t find it misleading,

because I was confused. My case got --

went from one panel to the next, and when

I got Mr. Kelly as my attorney I was just

asking him, I want to take this deal. I

want to take, you know, and he ain’t

disclose -- I mean, whatever it was he

came to me and told me well, they ain’t

got that deal no more. So whatever it was

when he first -- when he first took my

case, you know, I was like behind. I was

--

Q. So is it your testimony, Mr. Campbell,

that in your original grounds for

postconviction relief you did not state

that you were uninformed of a 30-year

plea offer?

A. Well, I was uninformed what -- because I

don’t know -- I mean, I ain’t got the

State’s file. I ain’t got access to this

paperwork. I mean, my attorney, Mr.

Kelly, I was uninformed. I know one

lawyer was telling me one thing, and I

was uninformed there was an offer with

Mr. Kelly.

Q. Mr. Campbell, what were the terms of the

30-year offer?

A. I don’t know.

(Doc. 20-8 at 344–45). In contrast to Petitioner’s apparent

confusion as to whether Counsel had discussed a plea offer with

him, Counsel testified that “[t]here was no plea offer. To my

knowledge there was never a plea offer.” (Id. at 379).

The obvious inconsistencies between Petitioner’s Rule 3.850

motion and his evidentiary hearing testimony (and inconsistencies

in the testimony itself), support the state court’s credibility

determinations. Given that the state court reasonably concluded

that the State had not made a plea offer of thirty years or

otherwise, Counsel could not have been ineffective for failing to

convey the offer to Petitioner. Likewise, because there was no

plea offer, Petitioner cannot demonstrate Strickland prejudice

from Counsel’s alleged misadvise regarding Petitioner’s sentencing

exposure. Petitioner has not demonstrated entitlement to federal

habeas corpus relief on Ground Four. 28 U.S.C. § 2254(d).

E. Ground Five

Petitioner asserts that Counsel was ineffective for failing

to object to the “illegal twenty-five year minimum mandatory

sentence” he received for second degree murder with a firearm.

(Doc. 1 at 29). Petitioner appears to base this argument on the

fact that no firearm was entered into evidence at trial, and as a

result, there was insufficient evidence to show that he actually

possessed or discharged a firearm during the murder. (Id.)

Petitioner raised this claim in his Rule 3.850 Motion, and the

postconviction court rejected it on both Strickland prongs without

an evidentiary hearing:

The Court finds Defendant has not satisfied

either Strickland prong in this allegation

because his assertion his counsel was

ineffective is not accurate. “[A] defendant’s

use of a firearm during a crime can be

established even if the gun is not recovered

and introduced into evidence. Circumstantial

evidence can be sufficient to establish the

use of a firearm.” Mitchell v. State, 698

So.2d 555, 558 (Fla. 2d DCA 1997). Had counsel

objected to the mandatory minimum sentence

merely because the weapon was not recovered,

the Court would have overruled the objection

pursuant to Mitchell. This allegation is

legally insufficient because counsel cannot be

deemed ineffective for failing to prevail on

a meritless issue. Tefeteller v. Dugger, 734

So.2d 1009, 1020 (Fla. 1999).

(Doc. 20-8 at 45–46). A review of the record and applicable law

supports the state postconviction court’s conclusions.

For any relief to be afforded under Strickland, this Court

would first have to conclude that the postconviction court

misinterpreted state law when it determined that a defendant’s use

of a firearm during a crime can be established by circumstantial

evidence. However, it is a “fundamental principle that state

courts are the final arbiters of state law, and federal habeas

courts should not second-guess them on such matters.” Agan v.

Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997). Florida’s state

courts have already answered the question of what would have

happened had Counsel objected to the imposition of a minimum

mandatory sentence for possession of a firearm—the objection would

have been overruled. And in fact, the law is clear in Florida

that “a defendant’s use of a firearm during a crime can be

established even if the gun is not recovered and introduced into

evidence.” Mitchell v. State, 698 So. 2d 555, 558 (Fla. 1997);

Flowers v. State, 738 So.2d 412, 413 (Fla. 5th DCA 1999) (finding

sufficient evidence to conclude that defendant possessed a firearm

during a robbery, even absent introduction of the weapon into

evidence).

Moreover, Petitioner raises this claim as one of ineffective

assistance of counsel. Therefore, under Burt v. Titlow’s “doubly

deferential” standard of review, not only must Petitioner show

that the State was required to produce the firearm used to shoot

the victim, he must also show that no competent counsel could have

concluded otherwise. 571 U.S. at 15. Given the clarity of the

law on this issue and the fact that the victim was shot several

times, reasonable competent counsel could have declined to object

to Petitioner’s 25-year minimum mandatory sentence.

The state court did not unreasonably apply Strickland to his

case, and the rejection of Ground Five was not based on an

unreasonable determination of the facts in light of the evidence

presented in Petitioner’s state court proceeding. Petitioner is

not entitled to habeas relief on Ground Five. 28 U.S.C. § 2254(d).

F. Ground Six

Petitioner asserts that Counsel was ineffective for failing

to “properly” file a motion to introduce testimony of two potential

defense witnesses—Crawford and Richardson. (Doc. 1 at 34).5

Specifically, he argues that Counsel did not advise the state court

that the witnesses could not invoke their Fifth Amendment rights

against self-incrimination because they waived their rights when

5

These witnesses were the victim’s prior husband and

boyfriend. (Doc. 20-2 at 259). Both had children and turbulent

relationships with the victim. (Id.) Counsel moved to allow

these witnesses to testify that they had engaged in prior incidents

of domestic violence towards the victim. (Id. at 230). At a

pretrial hearing, Counsel complained to the trial court that

“[n]either one of these individuals were ever suspected or ever –

[the investigating police officer] didn’t know their background,

their criminal history. He didn’t know where they were as far as

an alibi. There was no investigation. There was absolutely no

other suspects once Mr. – someone told him that they saw Mr.

Campbell exit the home.” (Id. at 259–60). In a well-reasoned

order, the trial court denied Petitioner’s motion to introduce

Crawford’s or Richardson’s testimony. (Doc. 20-3 at 67–69).

they gave deposition testimony. (Id. at 35).

When Petitioner raised this claim in his Rule 3.850 Motion,

the postconviction court rejected it without holding an

evidentiary hearing. Noting that the issue had been “extensively

and thoroughly litigated at the trial court level,” the

postconviction court determined that “the trial court did not abuse

its discretion in declaring [that] Crawford and Richardson had a

Fifth Amendment right to refuse to testify at Defendant’s murder

trial.” (Doc. 20-8 at 46).

Ground Six suffers from the same defect as Ground Two.

Namely, Petitioner merely speculates that these witnesses would

have provided helpful information. He has not offered this Court

the sworn testimony of either witness implicating themselves in

the victim’s murder or providing any other favorable evidence. In

fact, a review of these witnesses’ pre-trial depositions shows

that both Crawford and Richardson provided damaging testimony

about Petitioner.6 Specifically, Crawford testified that the

victim told him that she and Petitioner argued too much and that

she was “tired” of him. (Doc. 20-8 at 53). Crawford’s daughter

told him that Petitioner had twisted the victim’s arm. (Id. at

53–54). She also told him that the victim wanted Petitioner out

6

Neither party was informed of his Fifth Amendment right

against self-incrimination at the pretrial deposition. (Doc. 20-

2 at 256). Both invoked the right at the pretrial hearing on this

matter. (Id. at 249, 253).

of her house. (Id. at 55). Crawford described an incident in

which the victim brought his (Crawford’s) crying children to his

house at 2:30 in the morning “trying to get away from that idiot.”

(Id. at 58). Richardson testified that he encountered Petitioner

in prison and asked him why he killed the victim. (Id. at 76).

While Petitioner never admitted or denied killing the victim to

Richardson, he said that he and the victim fought about “income

tax money,” and he just “snapped.” (Id.) Richardson’s son told

him that he did not like Petitioner because he argued with the

victim all the time. (Id. at 81–82). Richardson also said that

the victim had told him that Petitioner was “real jealous” and

that “they [were] always arguing and fighting.” (Id. at 82).

Ground Six is based on three layers of speculation.

Speculation that the trial court would have allowed the witnesses

to testify had Counsel argued as Petitioner now suggests,

speculation that these witnesses would have testified favorably,

and speculation that the jury would have found him not-guilty had

they done so. Petitioner has not carried his burden on federal

habeas review. See Aldrich v. Wainwright, 777 F.2d 630, 636 (11th

Cir. 1985) (“Speculation is insufficient to carry the burden of a

habeas corpus petitioner as to what evidence could have been

revealed by further investigation.”). Ground Six is denied. 28

U.S.C. s 2254(d).

G. Ground Seven

In Ground Seven, Petitioner argues that Counsel was

ineffective for “failing to object to the trial court judge[’s]

erroneous admission of collateral act evidence.” (Doc. 1 at 38).7

Petitioner raised a similar claim in his brief on direct appeal

where he argued that the trial court erred when “it allowed the

jury to hear evidence of unrelated, irrelevant collateral acts

allegedly committed by Mr. Campbell.” (Doc. 20-6 at 32). In the

same brief, Petitioner asserts that “this issue was raised and

litigated pretrial and is thus preserved.” (Id. at 33).

Petitioner described the pretrial history of this claim in the

appellate brief as follows:

The state did not file a notice of intent to

use collateral act evidence pursuant to

§90.404(2), Florida Statutes. The issue was

first raised when the defense filed a motion

to exclude such evidence. It was only after a

hearing and arguments on the issue that the

state finally filed a motion to admit the

evidence. Even then, the state argued this was

not collateral act evidence, so the

requirements of §90.404 did not apply. It

simply argued that the evidence was relevant,

and thus admissible. Yet the basis for its

argument was the claim that the evidence was

relevant on the issues of motive and intent.

Of course, those are classic collateral act

issues, and mentioned specifically in the

statute. So the state’s own argument shows

7

Petitioner does not describe the allegedly erroneously

admitted evidence in his habeas petition. However, in his brief

on direct appeal, he argued that the state court should not have

admitted evidence that he and the victim often argued, that he

once threw a trash can at the victim, and that he once chased the

victim to a neighbor’s home. (Doc. 20-6 at 35).

that it misunderstood the law relating to

collateral act evidence.

The trial court erroneously accepted the

state’s argument, and concluded that the

evidence was not Williams rule evidence.

(Doc. 20-6 at 33–34) (citations to the record omitted). After

hearing oral arguments (Id. at 82), the Second DCA affirmed without

a written opinion. (Id. at 85).

Respondent argues that Ground Seven is unexhausted and

procedurally defaulted because Petitioner did not raise it in state

court as an ineffective assistance claim. (Doc. 19 at 28).

Indeed, it appears that—despite his statement to the contrary in

his petition (Doc. 1 at 43)—Petitioner never raised this issue as

one of ineffective assistance of counsel in state court, and as a

result, the claim must be dismissed as unexhausted.

It is unnecessary for the Court to consider whether Petitioner

has shown cause for the default because the claim lacks merit. 28

U.S.C. § 2254(b)(2). In his own brief on direct appeal, Petitioner

states that Counsel moved to exclude the evidence. (Doc. 20-6 at

33). Accordingly, despite Petitioner’s argument otherwise,

Counsel raised the collateral evidence issue in state court.

Moreover, to find that Petitioner suffered prejudice, the Court

would first have to conclude that the state court misapplied state

law. As noted, state courts “are the final arbiters of state law,

and federal habeas courts should not second-guess them on such

matters.” Agan, 119 F.3d at 1549; Estelle v. McGuire, 502 U.S. 62,

67–68 (1991)(“[I]t is not the province of a federal habeas court

to reexamine state-court determinations on state-law questions.”)

The state courts have already answered the question of what

would have happened if Counsel had raised further objections to

the admission of the collateral evidence. The challenge would

have failed. Since Counsel would have been unsuccessful in

further objections to the evidence, Petitioner cannot show

Strickland prejudice. In addition to being subject to dismissal

as unexhausted. Ground Seven is denied on the merits.

H. Ground Eight

Petitioner asserts that Counsel was ineffective for failing

to properly file a motion to dismiss. (Doc. 1 at 44). To the

extent this is the same claim as raised as ground eight in

Petitioner’s Rule 3.850 Motion, he argues that Counsel should have

argued, on double jeopardy grounds, that the case against him

should have been dismissed after the initial jury panel was

dismissed following a disturbance in the courtroom.

The postconviction court described and dismissed the claim as

follows:

Defendant alleges ineffective assistance of

counsel in that counsel failed to file a

motion to dismiss the case to prevent a second

trial ‘on the merits.’ Defendant alleges he

did not consent to a dismissal of the initial

trial and double jeopardy should have

precluded a second trial “because Defendant

was tried again for a crime he was legally

acquitted on in the first trial.”

Defendant’s ineffective assistance of counsel

allegation is without merit. There is no

evidence in the record to support his

assertion that a jury was sworn to hear

evidence against him. The record reveals that

the voir dire process was almost complete in

the first attempt to seat a jury. A lunchtime

altercation caused the trial judge to sua

sponte dismiss that jury. The State and

defense counsel both concurred. However, the

jury was not sworn and heard no evidence

against the Defendant. Prejudice did not

attach to the Defendant’s case and the double

jeopardy issue is not applicable. See Corneiro

v. Solomon, 450 So. 2d 599 (3d DCA 1984);

Edwards v. State, 336 So. 2d 447 (3d DCA 1976).

(Doc. 20-8 at 49) (citations to the record omitted). Petitioner

does not point to errors in the state courts’ reasoning that would

entitle him to federal habeas corpus relief.

“The Double Jeopardy Clause of the Fifth Amendment protects

a defendant in a criminal proceeding against multiple punishments

or repeated prosecutions for the same offense.” United States v.

Dinitz, 424 U.S. 600, 606 (1976) (footnote omitted). The United

States Supreme Court has explained that “[i]n the case of a jury

trial, jeopardy attaches when a jury is empaneled and sworn.”

Serfass v. United States, 420 U.S. 377, 388 (1975); Crist v. Bretz,

437 U.S. 28, 35 (1978). When a criminal defendant requests and

is granted a mistrial, double jeopardy provisions do not apply,

absent prosecutorial or judicial misconduct which involves “bad

faith in order to goad the [defendant] into requesting a mistrial.”

Dinitz, 424 U.S. at 607–08.

In this case, a disruptive incident occurred in the courtroom

after the jury was empaneled, but not sworn. A portion of the

trial transcript describing the court’s reaction to the incident

is attached to the order denying Petitioner’s Rule 3.850 Motion.

The following exchange between Counsel, the State and the trial

court occurred:

COURT. Counsel, obviously, we have a jury

waiting outside, and under the

circumstances I’m inclined to

mistry this case and start another

time. Any comment?

COUNSEL. Your Honor, no comment. I’m sorry,

I just have to confer with my client

about that if I can.

COURT. If you want to confer. Does the state

have a comment about it?

STATE. No, Judge.

. . .

COUNSEL. Yes. The defendant would like a

mistrial.

COURT. I realize that -- and the courtroom

has been controlled now by the

deputies, but -- realize

that the jury was outside in the

hallway. However, this -- the

commotion that has been created, I

would be concerned that it could have

carried out into the hallway. I think

obviously everybody involved is a

little bit traumatized. I think, in

an abundance of caution, it would be

better to begin anew with a new jury

panel even though a lot of work was

done in this case.

(Doc. 20-8 at 118–19). It is clear from the remainder of the

transcript that the jury had not yet been sworn or heard evidence

when the disturbance occurred and the mistrial declared. In fact,

the jury panel was curious as to who had been chosen to serve as

jurors at trial. (Id. at 123). In addition, Petitioner requested

the mistrial, and there is no evidence of bad faith from the state

or court goading him into making the request.

Counsel had no grounds to move to dismiss the case on double

jeopardy grounds, and defense counsel’s performance is not

ineffective for failing to make a meritless motion. See Brownlee

v. Haley, 306 F.3d 1043, 1066 (11th Cir. 2002) (counsel was not

ineffective for failing to raise issues clearly lacking in merit).

Thus, the state court’s adjudication of this claim was neither

contrary to clearly established federal law nor based upon an

unreasonable determination of facts. 28 U.S.C. § 2254(d).

Petitioner is not entitled to federal habeas relief on Ground 8.

IV. Conclusion

Based on the foregoing, Petitioner is not entitled to relief

on the habeas claims presented here. No allegation not

specifically addressed has been found to warrant habeas relief.

Accordingly, it is ordered that:

1. Grounds Two and Seven of Tyrone Campbell’s 28 U.S.C. §

2254 petition are DISMISSED as unexhausted.

Alternatively, Grounds Two and Seven are DENIED. The

remaining claims are DENIED.

2. The Clerk is DIRECTED to enter judgment in favor of

Respondent and against Petitioner, deny any pending

motions as moot, terminate any deadlines, and close this

case.

Certificate of Appealability8

A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court’s denial of his petition.

28 U.S.C. § 2253(c)(1). Rather, a district court or circuit

justice or judge must first issue a certificate of appealability

(COA). “A [COA] may issue . . . only if the applicant has made 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,” 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, 336 (2003). When,

as here, the district court has rejected a claim on procedural

grounds, the petitioner must show that “jurists of reason would

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

denial of a constitutional right and that jurists of reason would

8 Under Rule 11(a) of the Rules Governing Section 2254 Cases

in the United States District Courts, the “district court must

issue or deny a certificate of appealability when it enters a final

order adverse to the applicant.”

find it debatable whether the district court was correct in its

procedural ruling.” Slack, 529 U.S. at 484.

Upon consideration of the record, the Court declines to issue

a COA. Because Petitioner is not entitled to a COA, he is not

entitled to appeal in forma pauperis.

DONE AND ORDERED in Fort Myers, Florida on May 3rd, 2022.

— Ap f

VHA) Z~ DH

JOHN E. STEELE

3q IOR UNITED STATES DISTRICT JUDGE

SA: FIMP-2

Copies furnished to:

Counsel of Record

Unrepresented Parties