Wilder v. State Of Florida (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ISAAC WILDER,

Petitioner,

v. Case No. 3:19-cv-614-MMH-PDB

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Isaac Wilder, an inmate of the Florida penal system, initiated

this action on May 21, 2019,1 by filing a Petition for Writ of Habeas Corpus

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under 28 U.S.C. § 2254 (Petition; Doc. 1).2 In the Petition, Wilder challenges a

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2011 state court (Duval County, Florida) judgment of conviction for first degree

murder and attempted second degree murder. He raises eight claims. See

Petition at 4-24. Respondents have submitted a memorandum in opposition to

1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).

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

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

the Petition, see Answer in Response to Order to Show Cause (Response; Doc.

8) with exhibits, see Docs. 8-1 through 8-11. Wilder filed a brief in reply. See

Reply (Doc. 9). He also submitted exhibits. See Docs. 9-1 through 9-19. This

action is ripe for review.

II. Relevant Procedural History

On August 26, 2008, at the conclusion of a trial in Duval County case

number 16-2005-CF-016108-AXXX, the jury found Wilder guilty of first degree

murder (count one), attempted second degree murder with a firearm, a lesser-

included offense (count two), and petit theft, a lesser-included offense (count

three). See https://core.duvalclerk.com, Isaac Wilder v. State of Florida, case

no. 16-2005-CF-016108-AXXX (4th Fla. Cir. Ct.); Doc. 8-5 at 266-70, Verdicts.

On September 24, 2008, the court sentenced Wilder to life imprisonment for

count one, a term of imprisonment of thirty years with a thirty-year minimum

mandatory term for count two, and a sixty-day term of imprisonment for count

three. Doc. 8-7 at 16-23, Judgment. The court ordered that the sentences for

counts two and three run concurrently with the sentence for count one. Id.

Wilder, with the benefit of counsel, appealed his convictions for first

degree murder, attempted second degree murder, and petit theft on the

grounds that the trial court erred when it denied a motion to suppress evidence

of inculpatory statements he made in a custodial interrogation by law

enforcement, after he had invoked his right to counsel. On July 7, 2010, the

First District Court of Appeal (First DCA) reversed and remanded the case for

a new trial with directions that the court grant the motion to suppress. Wilder

v. State, 40 So. 3d 804 (Fla. 1st DCA 2010). The court issued the mandate on

August 23, 2010. See onlinedocketsdca.flcourts.org, Isaac Wilder v. State of

Florida, 1D08-5030 (Fla. 1st DCA).

On June 24, 2011, at the conclusion of a second trial, the jury found

Wilder guilty of first degree murder (count one) and attempted second degree

murder with a firearm, a lesser-included offense (count two). Doc. 8-2 at 2-5,

Verdicts. On August 5, 2011, the court sentenced Wilder to life imprisonment

for count one and a term of imprisonment of thirty years with a thirty-year

minimum mandatory term for count two, to run concurrently with the term for

count one. Id. at 71-77, Judgment.

On direct appeal, Wilder, with the benefit of counsel, filed an initial brief,

arguing that the trial court erred when it failed to instruct the jury on

attempted voluntary manslaughter, as a lesser-included offense of attempted

second degree murder. Doc. 8-7 at 50-73. The State filed an answer brief. Id.

at 75-94. The First DCA affirmed Wilder’s convictions and sentences on August

22, 2012, id. at 96, and issued the mandate on September 7, 2012, id. at 98.

On December 18, 2012, Wilder filed a pro se motion for postconviction

relief pursuant to Florida Rule of Criminal Procedure 3.850. Id. at 104. He filed

amended and supplemental Rule 3.850 motions on June 11, 2013, November

18, 2013, and May 14, 2015. Docs. 8-7 at 186; 8-8 at 48; 8-9 at 42. In the request

for postconviction relief, Wilder asserted that his trial counsel was ineffective

because he failed to: call Leroy Brown as an alibi witness at trial (ground one),

Doc. 8-8 at 51; call Anthony Conley as a defense witness at trial (ground two),

id. at 57; investigate and object to the testimony of State witness Demetrius

Wilder (ground three), id. at 63; object and move for a mistrial when the

prosecutor misrepresented evidence related to letters in violation of Giglio3

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(ground four), id. at 68; object and move for a mistrial when the prosecutor

bolstered the testimony of State witnesses and shifted the burden of proof from

the State to the defense in closing argument (ground six), id. at 77; and

adequately argue and move for a judgment of acquittal (ground twelve), id. at

88. He also asserts that the prosecutor: violated Giglio (ground five), id. at 71;

bolstered the testimony of State witnesses and shifted the burden of proof from

the State to the defense (ground seven), id. at 79; and bolstered the testimony

of Demetrius Wilder (ground eight), id. at 82. As grounds nine, ten and eleven,

he asserted that the cumulative errors at trial and those committed by the

prosecutor and defense counsel deprived him of his rights to a fair trial and

due process of law. Id. at 83-88. Additionally, Wilder filed motions related to

newly-discovered evidence of actual innocence. Docs. 8-7 at 147; 8-8 at 9, 94,

3 Giglio v. United States, 405 U.S. 150 (1972).

139; 8-9 at 24, 85, 104; https://core.duvalclerk.com, Wilder, case no. 16-2005-

CF-016108-AXXX. The state court denied his postconviction motions on

August 21, 2017. Docs. 8-9 at 167-70; 8-10 at 1-16. On January 25, 2019, the

First DCA affirmed the court’s denial of postconviction relief per curiam, Doc.

8-11 at 95, and it denied Wilder’s motion for rehearing on March 15, 2019, see

onlinedocketsdca.flcourts.org, Isaac Wilder v. State of Florida, 1D17-3962 (Fla.

1st DCA). On April 5, 2019, the court issued the mandate. Doc. 8-11 at 103.

III. One-Year Limitations Period

This action was timely filed within the one-year limitations period. See

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

In a habeas corpus proceeding, the burden is on the petitioner to

establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.

Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to

grant an evidentiary hearing, a federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations,

which, if true, would entitle the applicant to federal habeas relief.” Schriro v.

Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834

F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if the record refutes the

applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.

The pertinent facts of this case are fully developed in the record before the

Court. Because the Court can “adequately assess [Wilder’s] claim[s] without

further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.

2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs a state prisoner’s federal petition for habeas corpus. See Ledford v.

Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.

2016). “‘The purpose of AEDPA is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice systems,

and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.

34, 38 (2011) (quotation marks omitted)). As such, federal habeas review of

final state court decisions is “‘greatly circumscribed’ and ‘highly deferential.’”

Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation

marks omitted)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the claim on the merits. See Marshall v. Sec’y,

Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue a written opinion explaining its rationale in order for the state court’s

decision to qualify as an adjudication on the merits. See Harrington v. Richter,

562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is

unaccompanied by an explanation, the United States Supreme Court has

instructed:

[T]he federal court should “look through” the

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be

rebutted by showing that the higher state court’s adjudication most likely

relied on different grounds than the lower state court’s reasoned decision, such

as persuasive alternative grounds that were briefed or argued to the higher

court or obvious in the record it reviewed. Id. at 1192, 1196.

If the claim was “adjudicated on the merits” in state court, § 2254(d) bars

relitigation of the claim unless the state court’s decision (1) “was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States;” or (2) “was based on

an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d); Richter, 562 U.S. at 97-98.

The Eleventh Circuit describes the limited scope of federal review pursuant to

§ 2254 as follows:

First, § 2254(d)(1) provides for federal review for

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),

§ 2254(d)(1) consists of two distinct clauses: a

“contrary to” clause and an “unreasonable application”

clause. The “contrary to” clause allows for relief only

“if the state court arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 413, 120 S. Ct. at 1523

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Id.

Second, § 2254(d)(2) provides for federal review for

claims of state courts’ erroneous factual

determinations. Section 2254(d)(2) allows federal

courts to grant relief only if the state court’s denial of

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. §

2254(d)(2). The Supreme Court has not yet defined §

2254(d)(2)’s “precise relationship” to § 2254(e)(1),

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.

Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.

Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192

L.Ed.2d 356 (2015). Whatever that “precise

relationship” may be, “‘a state-court factual

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’”[4] Titlow, 571 U.S. at

3F

4 The Eleventh Circuit has described the interaction between § 2254(d)(2) and

§ 2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3

(11th Cir. 2016).

---, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S.

290, 301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).

Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016); see Teasley v.

Warden, Macon State Prison, 978 F.3d 1349, 1356 n.1 (11th Cir. 2020). Also,

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

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

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

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

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

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

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

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

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

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

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

Richter, 562 U.S. at 102. A district court’s obligation is “to train its attention”

on the legal and factual basis for the state court’s ruling, not to “flyspeck the

state court order or grade it.” Meders v. Warden, Ga. Diagnostic Prison, 911

F.3d 1335, 1349 (11th Cir. 2019) (citing Wilson, 138 S. Ct. at 1191-92). Thus,

to the extent that a petitioner’s claims were adjudicated on the merits in the

state courts, they must be evaluated under 28 U.S.C. § 2254(d).

B. Exhaustion/Procedural Default

There are prerequisites to federal habeas review. Before bringing a §

2254 habeas action in federal court, a petitioner must exhaust all state court

remedies that are available for challenging his state conviction. See 28 U.S.C.

§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly

present[]” every issue raised in his federal petition to the state’s highest court,

either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346,

351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state

prisoners must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state

prisoner must exhaust available state remedies, 28

U.S.C. § 2254(b)(1), thereby giving the State the

“‘“opportunity to pass upon and correct” alleged

violations of its prisoners’ federal rights.’” Duncan v.

Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d

865 (1995) (per curiam) (quoting Picard v. Connor, 404

U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To

provide the State with the necessary “opportunity,”

the prisoner must “fairly present” his claim in each

appropriate state court (including a state supreme

court with powers of discretionary review), thereby

alerting that court to the federal nature of the claim.

Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan

v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144

L.Ed.2d 1 (1999).

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

A state prisoner’s failure to properly exhaust available state remedies

results in a procedural default which raises a potential bar to federal habeas

review. The United States Supreme Court has explained the doctrine of

procedural default as follows:

Federal habeas courts reviewing the

constitutionality of a state prisoner’s conviction and

sentence are guided by rules designed to ensure that

state-court judgments are accorded the finality and

respect necessary to preserve the integrity of legal

proceedings within our system of federalism. These

rules include the doctrine of procedural default, under

which a federal court will not review the merits of

claims, including constitutional claims, that a state

court declined to hear because the prisoner failed to

abide by a state procedural rule. See, e.g., Coleman,[5]

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supra, at 747-748, 111 S. Ct. 2546; Sykes,[6] supra, at

5F

84-85, 97 S. Ct. 2497. A state court’s invocation of a

procedural rule to deny a prisoner’s claims precludes

federal review of the claims if, among other requisites,

the state procedural rule is a nonfederal ground

adequate to support the judgment and the rule is

firmly established and consistently followed. See, e.g.,

Walker v. Martin, 562 U.S. 307, 316, 131 S. Ct. 1120,

1127-1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler,

558 U.S. 53, 60-61, 130 S. Ct. 612, 617-618, 175

L.Ed.2d 417 (2009). The doctrine barring procedurally

defaulted claims from being heard is not without

exceptions. A prisoner may obtain federal review of a

defaulted claim by showing cause for the default and

prejudice from a violation of federal law. See Coleman,

501 U.S., at 750, 111 S. Ct. 2546.

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

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

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be

excused under certain circumstances. Notwithstanding that a claim has been

procedurally defaulted, a federal court may still consider the claim if a state

habeas petitioner can show either (1) cause for and actual prejudice from the

default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d

1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause,

the procedural default “must result from some

objective factor external to the defense that prevented

[him] from raising the claim and which cannot be

fairly attributable to his own conduct.” McCoy v.

Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)

(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[7]

6F

Under the prejudice prong, [a petitioner] must show

that “the errors at trial actually and substantially

disadvantaged his defense so that he was denied

fundamental fairness.” Id. at 1261 (quoting Carrier,

477 U.S. at 494, 106 S. Ct. 2639).

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

In the absence of a showing of cause and prejudice, a petitioner may

receive consideration on the merits of a procedurally defaulted claim if the

petitioner can establish that a fundamental miscarriage of justice, the

continued incarceration of one who is actually innocent, otherwise would

result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice,

there remains yet another avenue for him to receive

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

consideration on the merits of his procedurally

defaulted claim. “[I]n an extraordinary case, where a

constitutional violation has probably resulted in the

conviction of one who is actually innocent, a federal

habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”

Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This

exception is exceedingly narrow in scope,” however,

and requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171

(11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that

it is more likely than not that no reasonable juror would have convicted him’

of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.

2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be

credible,’ a claim of actual innocence must be based on reliable evidence not

presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting

Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,

allegations of actual innocence are ultimately summarily rejected. Schlup, 513

U.S. at 324.

C. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

assistance of counsel. That right is denied when a defense attorney’s

performance falls below an objective standard of reasonableness and thereby

prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per

curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

of reasonable professional assistance. Id., at 689, 104

S. Ct. 2052. The challenger’s burden is to show “that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome.” Id., at 694, 104 S. Ct. 2052.

It is not enough “to show that the errors had some

conceivable effect on the outcome of the proceeding.”

Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be

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

trial whose result is reliable.” Id., at 687, 104 S. Ct.

2052.

Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of

any iron-clad rule requiring a court to tackle one prong of the Strickland test

before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part

Strickland test must be satisfied to show a Sixth Amendment violation, “a

court need not address the performance prong if the petitioner cannot meet the

prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,

1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we

expect will often be so, that course should be followed.” Strickland, 466 U.S. at

697.

A state court’s adjudication of an ineffectiveness claim is accorded great

deference.

“[T]he standard for judging counsel’s representation is

a most deferential one.” Richter, 562 U.S. at ---, 131

S.Ct. at 788. But “[e]stablishing that a state court’s

application of Strickland was unreasonable under §

2254(d) is all the more difficult. The standards created

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

is doubly so.” Id. (citations and quotation marks

omitted). “The question is not whether a federal court

believes the state court’s determination under the

Strickland standard was incorrect but whether that

determination was unreasonable — a substantially

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

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

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

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

Richter, 562 U.S. at ---, 131 S. Ct. at 788.

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

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

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

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

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

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

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

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

VI. Findings of Fact and Conclusions of Law

A. Ground One

As ground one, Wilder asserts that he is “actually innocent” of the

murder of Laserrio Lang and the attempted murder of Keonna Diamond based

on newly discovered evidence (State witness Demetrius Wilder’s letter,

postmarked February 18, 2014), especially in light of the State’s evidence

presented at the 2011 trial. Petition at 4-9. He raised the claim in his motions

related to newly discovered evidence. Doc. 8-9 at 26-29, 34 (Demetrius Letter),

87-90, 106-09. The postconviction court denied his request for postconviction

relief with respect to the claim, stating in pertinent part:

In the Motions alleging newly discovered

evidence of actual innocence, Defendant raises the

following allegations: (1) newly discovered witness

Quinton Woods; (2) newly discovered witness Robert

Lockwood; and (3) recantation by Demetrius Wilder.

On June 13, 2017, the Court granted Defendant leave

to amend to attach notarized copies of the affidavits

from Demetrius, Quinton Woods, and Robert

Lockwood. Defendant filed a Response to the Court’s

Order on June 23, 2017. In his Response, Defendant

states the letter from Demetrius is not an affidavit, but

just a letter and should be treated as such. Defendant

did not address the affidavits of Quinton Woods or

Robert Lockwood.

Initially, the Court finds Defendant’s claim of

actual innocence is not cognizable in a postconviction

proceeding, as Florida does not recognize a

freestanding actual innocence claim. Tompkins v.

State, 994 So. 2d 1072, 1089 (Fla. 2008); see Elledge v.

State, 911 So. 2d 57, 78 (Fla. 2005). Under Florida law,

if new evidence surfaces after a direct appeal, a

defendant may bring a newly discovered evidence

claim. Tompkins, 994 So. 2d at 1089. As such, the

Court reviews Defendant’s claims under the

recognized claim of newly discovered evidence.

. . . .

As to the letter from Demetrius,[8] Rule 3.850(c)

7F

8 The relevant portion of Demetrius’s letter says:

I know you hate my guts, and there is nothing I can

do to make this right. The reason I haven’t wrote in so long

is because it hurts too bad when I think about what me,

Wink, and Malcolm did to you, but the case is over now. I

know there isn’t nothing I can do and I’m not going to lie to

you Ice dog. Even if I could do something I probably

wouldn’t because we are in too deep now and I came back

and told the truth about Malcolm killing La’Scerio they

would probably hit me with perjury and some other sh[]t

and I can[’]t risk catching time and having them crackas

take me from my kids. I have 3 of them now and I can’t

leave them out here alone. I know that may sound like a

slap in the face seeing as how because of me you’ve been

taken from your child[,] but I promise Isaac I truly love you.

So[,] the least I can do is give you an explanation. Me and

Malcolm didn’t intend to set you up, and although it look

like we framed you it wasn’t intentional. Malcolm was truly

scared, plus he didn’t mean to kill La’Scerio. He told me he

acted out of fear when he shot him and that chic, and I

know this ain’t gone [sic] make you feel better but you’re

stronger than Malcolm that’s why I did what I did because

Malcolm can’t do time Isaac and you know that! And I’m

not saying it[’]s easier on you, especially knowing you ain’t

done sh[]t. But I know you dog and you’ll find your way out

that sh[]t because you’re a thinker. I just don’t want

states, “the defendant shall attach an affidavit from

any person whose testimony is necessary to factually

support the defendant’s claim for relief. If the affidavit

is not attached to the motion, the defendant shall

provide an explanation why the required affidavit

could not be obtained.” Thus, despite the fact

Demetrius wrote a letter to Defendant, Defendant is

required to provide an affidavit to support his claim

that Demetrius is, in essence, recanting his trial

testimony. Because Defendant failed to properly

amend this claim in accordance with the Court’s

instructions, he is not entitled to relief. See Fla. R.

Crim. P. 3.850(f)(3); Spera v. State, 971 So. 2d 754, 761

(Fla. 2007) (“[W]hen a defendant’s initial rule 3.850

motion for postconviction relief is determined to be

legally insufficient for failure to meet either the rule[]

or other pleading requirements, the trial court abuses

its discretion when it fails to allow the defendant at

least one opportunity to amend the motion.”).

Even assuming arguendo the Court considered

the letter, the Court finds it would not entitle

Defendant to relief. Demetrius’s testimony at trial

essentially centered on the letters Defendant wrote to

him while Defendant was incarcerated; the letters

detailed the crimes with which Defendant was

charged. (Ex. G at 698-739.)[9] Demetrius testified

8F

that he was at the party, but left at about 12:30 a.m.

(Ex. G at 701.) He also testified that the next evening,

Defendant called him to come and pick him up and

when he did so, Defendant whispered to him that he

was on the run for murder. (Ex. G at 704.) Even if the

Court omitted Demetrius’s testimony, there was still

Malcolm to go to prison because he can’t do time but trust

me dog he regret killing that ni[]a and lying on you. So[,]

I’m writing to apologize on both of our behalfs [sic].

Doc. 8-9 at 34.

9 Docs. 8-3 at 521-22; 8-4 at 1-35.

overwhelming evidence of Defendant’s guilt, as

detailed below.

Keonna Diamond (“Diamond”), the surviving

victim, testified that she and Laserio Lang (“Lang”),

the deceased victim, were in his car during the early

morning of October 14, 2005. (Ex. G at 238.) Lang

received some phone calls that night, and they drove

in a red Toyota Corolla. (Ex. G at 240-41.) They

stopped at an apartment and Lang went inside while

Diamond stayed in the car. (Ex. G at 242.) From there,

they drove to the Royal Cove apartments. (Ex. G at

242, 243.) Lang received more phone calls while they

were driving there, but Diamond did not know with

whom he spoke. (Ex. G at 243.) He received the last

call as they were pulling into the apartments. (Ex. G

at 243.) Lang waved at two African American males

and then got back in the car. (Ex. G at 245.) The taller

darker skinned man wore darker clothing and got in

behind Diamond on the passenger side; the lighter

skinned man got in behind Lang; he wore a Polo style

shirt with blue and yellow horizontal stripes. (Ex. G at

244, 245.) The man behind Lang said, “I know some

people who want what you got,” and then there was a

gun shot and Lang fell forward over the steering

wheel. (Ex. G at 287.) Immediately after there was a

second shot to her head; Diamond closed her eyes and

played dead. (Ex. G at 255.) While she was in the

hospital, Diamond talked to police, who showed her a

group of photographs. (Ex. G at 277.) On one of the

photographs, she wrote that it “looks like the light

skinned guy.” (Ex. G at 278.) Diamond testified she did

not mean she was “100% sure it was the man, but it

resembled him. (Ex. G at 280.)

Officer Mark Romano was part of the homicide

team that investigated the case. (Ex. G at 361.) Officer

Romano obtained phone records for Lang’s phone and

identified inbound calls to Lang’s phone at 4:32 a.m.

the day of the shooting. (Ex. G at 362-63.) The call

came from Walker’s phone. (Ex. G at 364.) Walker

admitted she had allowed Defendant to use her phone

and did not see any others use it. (Ex. G at 393, 474.)

Walker testified she attended a party at Malcolm’s

apartment, and that Defendant told her to say he had

left the party early with a white woman. (Ex. G at 369-

70, 400.) At one point, Walker left with Defendant and

“B”; she drove them to the Royal Cove apartments

believing they were going to purchase drugs. (Ex. G at

377.) Walker parked near the back of the complex

under a carport and Defendant got out of the car with

B. (Ex. G at 379.) Walker testified that B wore a black

tee shirt and Defendant wore a multicolored Polo style

of shirt. (Ex. G at 380.) She did not know how long they

were gone, but when they returned, Defendant was

wearing a tank top and carrying some clothing in his

hands. (Ex. G at 380-81, 382.) Moreover, Walker

stated they were sweaty and breathing heavily. (Ex. G

at 395.) All three individuals returned to the party at

the Lighthouse apartments, and Walker testified she

saw a phone she had not seen before. (Ex. G at 383,

394.) Walker testified Defendant said something about

having to get rid of the phone. (Ex. G at 396.)

Without objection, the testimony of Florida

Department of Law Enforcement DNA analyst James

Pollock (“Pollock”) was read to the jury. (Ex. G at 516.)

After explaining the process, Pollock said blood found

in the parking lot matched Lang’s profile. (Ex. G at

532.) He also examined samples from the rear driver-

side-door latch. (Ex. G at 535.) The rear driver-side-

door latch contained a mixture of two or more

individuals, but no major contributor determined. (Ex.

G at 537, 550.) The rear driver-side armrest contained

a complex mixture, and Pollock could not exclude Lang

or Defendant as possible contributors to the mixture.

(Ex. G at 547.) The rear passenger-side armrest

contained very little information, but excluded Lang

and Defendant as contributors to the major profile,

which was female. (Ex. G at 547.) The rear passenger-

side-door latch excluded both Lang and Defendant as

contributors. (Ex. G at 539.)

Malcolm testified that he lived at the Lighthouse

Apartments with his roommate Victor, and his

brother, Quintus, also lived in the same complex. (Ex.

G at 574.) Malcolm held a party on October 13-14,

2005, and he remembered his brothers, Demetrius,

Quintus, and Isaac being there, as well as Walker,

Johnson, and Edwards. (Ex. G at 574-75.) People left

the party at various times; Malcolm left as well and

did not recall at exactly what time that occurred, but

he recalled that he wore a white jersey with a red

number 32 on it, and he went to Huddle House and the

Gate gas station. (Ex. G at 576-77.) He went to get gas

and more alcohol, but was not able to buy beer because

it was after 2 a.m. (Ex. G at 577-78.) Malcolm testified

he drove his roommate’s car to the Gate station and

went inside the store. (Ex. G at 578.)

The State showed a video taken from the Gate

station surveillance system purporting to show

Malcolm present in the store from 4:36 to 4:40 a.m. on

October 14, 2005. (Ex. G at 579.) After he returned to

his apartment, Walker, Johnson, and Defendant

returned. (Ex. G at 582.) Malcolm testified that when

they talked about the murder, Isaac said, “I did that

shit.” (Ex. G at 590.) When Malcolm asked why,

Defendant did not give an answer. (Ex. G at 590.)

Edwards testified he attended the party at

Malcolm’s apartment. (Ex. G at 674.) His phone

records showed calls that he said were with Defendant

at 3:29, 3:37, 3:42, and 3:50 a.m. (Ex. G at 676.) He

testified Defendant brought up a twenty-dollar debt

and asked Edwards for his gun, saying, “I need to get

my heat.” (Ex. G at 677.) The gun was in a bag that he

had left at Edward’s home, which Edwards said he did

not realize contained a revolver until he got the bag

out to give Defendant. (Ex. G at 678.) Defendant

picked up the bag from Edwards and gave him twenty

dollars. (Ex. G at 678-79.) Edwards then returned to

Malcolm’s apartment. (Ex. G at 679.) While he was

there, Walker, Johnson, and Defendant came back.

(Ex. G at 679-70.) Defendant had called him at 4:40 to

say he was coming. (Ex. G at 680.) When he arrived,

Defendant showed him three bullet casings and said

that he might have two bodies. (Ex. G at 681.)

Thus, there was overwhelming evidence of

Defendant’s guilt at trial, aside from Demetrius’s

testimony. Further, Demetrius’s letter attached to the

instant Motions consists of hearsay statements

allegedly made by Malcolm, which are inadmissible.

Thus, even if the Court considered the letter,

Defendant would not be entitled to relief.

Doc. 8-10 at 8-12 (footnote omitted). The First DCA affirmed the postconviction

court’s denial of relief and denied his motion for rehearing.

To the extent that the appellate court decided Wilder’s claim on the

merits,10 the Court will address the claim in accordance with the deferential

9F

standard for federal court review of state court adjudications. After a review of

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

adjudication of the claim was not contrary to clearly established federal law,

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

and was not based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceedings. Thus, Wilder is not entitled

to relief on the basis of this claim.

10 Throughout this order, in looking through the appellate court’s per curiam

affirmance to the circuit court’s “relevant rationale,” the Court presumes that the

appellate court “adopted the same reasoning.” Wilson, 138 S. Ct. at 1192.

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

not entitled to deference, Wilder’s claim is without merit because the record

supports the postconviction court’s conclusion. The Eleventh Circuit has

stated:

To begin with, our precedent forecloses habeas relief

based on a prisoner’s assertion that he is actually

innocent of the crime of conviction “absent an

independent constitutional violation occurring in the

underlying state criminal proceeding.” See Brownlee

v. Haley, 306 F.3d 1043, 1065 (11th Cir. 2002) (citation

and internal quotation marks omitted); see also

Cunningham v. Dist. Att’y’s Office, 592 F.3d 1237,

1273 (11th Cir. 2010) (“[An] assertion of actual

innocence, by itself, is not enough.”); Jordan v. Sec’y,

Dep’t of Corr., 485 F.3d 1351, 1356 (11th Cir. 2007). As

we have explained, “[i]t is not our role to make an

independent determination of a petitioner’s guilt or

innocence based on evidence that has emerged since

the trial.” Brownlee, 306 F.3d at 1065. And the

Supreme Court has never held that a prisoner is

“entitled to habeas relief based on a freestanding claim

of actual innocence.” McQuiggin v. Perkins, 569 U.S.

383, 392, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013).

The prohibition on freestanding claims of actual

innocence in a habeas petition respects the nature of

our federal system: “Federal courts are not forums in

which to relitigate state trials.” Herrera v. Collins, 506

U.S. 390, 401, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)

(quoting Barefoot v. Estelle, 463 U.S. 880, 887, 103

S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). When reviewing

a habeas petition, we “sit to ensure that individuals

are not imprisoned in violation of the Constitution—

not to correct errors of fact.” Id. at 400, 113 S.Ct. 853.

And “[f]ew rulings would be more disruptive of our

federal system than to provide for federal habeas

review of freestanding claims of actual innocence.” Id.

at 401, 113 S.Ct. 853.

Raulerson v. Warden, 928 F.3d 987, 1004 (11th Cir. 2019). Accordingly, Wilder

is not entitled to federal habeas relief on his actual innocence claim in ground

one.

B. Grounds Two and Three

As ground two, Wilder asserts that counsel (Richard Randall Kuritz,

Florida Bar #972540) was ineffective because he failed to call Leroy Brown as

an alibi witness. Petition at 10-11. As ground three, he asserts that counsel

was ineffective because he failed to call Anthony Conley as a defense witness.11

10F

Id. at 12-13. Wilder describes the purported testimony, stating:

[Leroy Brown] would have testified he met the

Petitioner in the Royal Cove Apartments at 3:50 am,

40 minutes before [the] murder occurred, they left the

Royal Cove Apartments and met again in front of an

apartment complex called Lighthouse Bay at 4:00 am,

where he picked the Petitioner up and went to meet

several female[] acquaintances. They arrived there

between 4:10-4:15 am and he and the Petitioner

remained there until sometime[] close to six o’clock

am.

. . . .

Petitioner was accused of the murder of Lascerio Lang

and attempted murder of Keona Diamond that

11 According to the Florida Department of Corrections Offender Network, the

proper spelling of his surname is “Conley.” www.dc.state.fl.us/OffenderSearch.

occurred between the times of 4:32 to 4:38 [on] October

14, 2005.

. . . .

[Anthony Conley] would have testified that Bobby

Johnson (who was arrested as Petitioner’s co-

defendant) confessed to Anthony Con[]ley that he

(Bobby Johnson) and Malcolm Wilder committed the

murder of Lascerio Lang and attempted murder of

Keona Diamond, and that Malcolm Wilder and State

witness David Edwards were telling Bobby Johnson

what to say to frame Petitioner and everything would

be fine.

Id. at 11, 13. According to Wilder, Brown and Conley were available to testify

at trial, and counsel knew what their testimony would entail. Id. at 11-12.

He raised the claims in his Rule 3.850 motion (grounds one and two).

Docs. 8-8 at 51-62; 8-9 at 45-48, 130-33. The postconviction court ultimately

denied his request for postconviction relief with respect to the claims, stating

in pertinent part:

Defendant maintains counsel was ineffective for

failing to call an alibi witness, Brown, to testify during

trial. Defendant maintains Brown was on standby and

present outside the courtroom during the trial.

At the conclusion of Defendant’s case, the trial

court inquired of Defendant whether he wanted any

additional witnesses called and whether counsel failed

to do something Defendant asked him to do. (Ex. G at

811-12.) Defendant responded in the negative. (Ex. G

at 812.) Accordingly, Defendant cannot now go behind

his sworn testimony to claim counsel was ineffective

for failing to present this witness. Smith v. State, 21

So. 3d 72, 76 (Fla. 1st DCA 200) (holding “whether an

allegation is conclusively refuted by the record, [a

court] may rely on the sworn testimony the defendant

has given . . . .”); see also Thomas v. State, 838 So. 2d

535, 541 (Fla. 2003) (affirming denial of ineffective

assistance of counsel claim where trial court found

defendant agreed not to call witness and, thus, could

not claim ineffective assistance of counsel based on his

decision); Hall v. State, 10 So. 3d 170, 172 (Fla. 5th

DCA 2009). Defendant is not entitled to relief.

. . . .

Defendant maintains counsel was ineffective for

[failing to] call[] Con[ley] as a witness. Defendant

alleges Con[ley] would have testified that other

individuals confessed to him that they committed the

instant crimes.

As stated in Ground (1), at the conclusion of

Defendant’s case, the trial court inquired of Defendant

whether he wanted any additional witnesses called,

and whether counsel failed to do something Defendant

asked him to do. (Ex. G at 811-12.) Defendant

responded in the negative. (Ex. G at 812.) Accordingly,

Defendant cannot now go behind his sworn testimony

to claim counsel was ineffective for failing to present

this witness. Smith, 21 So. 3d at 76. Furthermore, the

trial court previous[ly] denied counsel’s request to

present the testimony of Con[ley] during Defendant’s

2008 trial. (Ex. H at 1064-71.)[12] Based on the

11F

arguments presented during the 2008 trial, the trial

court would not have permitted Con[ley]’s testimony

in 2011, as the State again chose not to present Bobby

Johnson (“Johnson”) as a witness. (Exs. H at 1064; I.)

Defendant is not entitled to relief.

12 Doc. 8-11 at 31-38.

Docs. 8-9 at 170; 8-10 at 1. The First DCA affirmed the postconviction court’s

denial of relief and denied his motion for rehearing.

To the extent that the appellate court decided Wilder’s ineffectiveness

claims on the merits,13 the Court will address the claims in accordance with

12F

the deferential standard for federal court review of state court adjudications.

After a review of the record and the applicable law, the Court concludes that

the state court’s adjudication of the claims was not contrary to clearly

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

established federal law, and was not based on an unreasonable determination

of the facts in light of the evidence presented in the state court proceedings.

Thus, Wilder is not entitled to relief on the basis of these ineffectiveness claims.

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

not entitled to deference, Wilder’s ineffectiveness claims are without merit

because the record supports the postconviction court’s conclusion. There is a

strong presumption in favor of competence when evaluating the performance

prong of the Strickland ineffectiveness inquiry. See Anderson v. Sec’y, Fla.

Dep’t of Corr., 752 F.3d 881, 904 (11th Cir. 2014). The inquiry is “whether, in

light of all the circumstances, the identified acts or omissions were outside the

wide range of professionally competent assistance.” Strickland, 466 U.S. at

13 Wilson, 138 S. Ct. at 1192.

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

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

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

establish that no competent attorney would have taken the action that his

counsel chose.

Notably, the test for ineffectiveness is neither whether counsel could

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

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

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

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

whether what counsel did was within the wide range of reasonable professional

assistance. Ward, 592 F.3d at 1164 (quotations and citation omitted); Dingle v.

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

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

counsel acted in the trial at issue and not what ‘most good lawyers’ would have

done.”) (citation omitted).

The record reflects that Wilder filed counseled motions to transport

Leroy Brown (FDOC #J08489) and Anthony Conley (FDOC #J36586), who

were incarcerated in the Florida Department of Corrections, for the purpose of

testifying at the 2011 trial. Doc. 8-1 at 88, 92. In the motions, Wilder asserted

that their testimony was “required” during the trial. Id. The court granted the

motions. Id. at 90, 94. After the State rested its case, the court asked Wilder

whether he intended to testify, Doc. 8-4 at 67, and commented:

And you have an outstanding lawyer who is very

skilled at what he does, and I am sure he has spoken

with you at length about this matter, but I want to talk

to you myself just a moment.

Id. The defense recalled State witnesses Keonna Diamond (the victim of the

attempted murder) and Jacksonville Sheriff’s Office Detective Glen

Warkentien and called Sonya Jeffers (a private investigator Wilder had hired).

After the defense rested its case, the following colloquy ensued:

[DEFENSE COUNSEL]: Judge, I’ve spoken

with my client, and those are the only witnesses that

we have decided to call.

THE COURT: All right. Mr. Wilder, if you will

again please come forward, sir. I’m going to ask you to

again raise your right hand to be sworn, please.

(The defendant was sworn in by the clerk).

THE COURT: All right. And, Mr. Wilder, the

last time I spoke with you, of course, you had indicated

you chose not to testify; is that right?

THE DEFENDANT: Yes, sir.

. . . .

THE COURT: That’s all right. I wanted to ask

you specifically, of course, your lawyer called Detective

Warkentien, [Jeffers] the investigator that he had

employed and then also Ms. Diamond. Were there any

other witnesses that you asked your lawyer to call that

he refused to call?

THE DEFENDANT: I can’t -- he didn’t refuse to

call none of them, I’m just really like right now

wrestling with one issue myself with one witness

because --

THE COURT: And that’s fine, and I understand

that. And understanding that decisions have to be

made during the course of trial at every stage, and

that’s true in every trial, my question is, has your

lawyer failed to do something you have asked or, in

your opinion, instructed him to do?

THE DEFENDANT: Oh, no, sir. No, sir.

Id. at 114-15. A defendant’s “[s]olemn declarations in open court carry a strong

presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also

Kelley v. State, 109 So. 3d 811, 812-13 (Fla. 1st DCA 2013) (holding a court

may deny postconviction relief on claims that are refuted by sworn

representations the defendant made to the trial court).

On this record, Wilder has failed to carry his burden of showing that his

counsel’s representation fell outside that range of reasonable professional

assistance. Even assuming arguendo deficient performance by defense counsel,

Wilder has not shown any resulting prejudice. He has not shown that a

reasonable probability exists that the outcome of the case would have been

different if counsel had called Leroy Brown and/or Anthony Conley as defense

witnesses. His ineffectiveness claims are without merit since he has shown

neither deficient performance nor resulting prejudice. Accordingly, Wilder is

not entitled to federal habeas relief on his ineffectiveness claims in grounds

two and three.

C. Ground Four

As ground four, Wilder asserts that counsel was ineffective because he

failed to object to Demetrius’s “tainted” testimony at the 2011 trial. Petition at

14. According to Wilder, Demetrius’s 2011 trial testimony “changed

significantly” from his 2008 trial testimony because he heard other witnesses

testify when the trial judge permitted him back into the courtroom after his

testimony at the 2008 trial. Id. at 15. He raised the claim in his Rule 3.850

motion (ground three). Docs. 8-8 at 63-68; 8-9 at 48-51, 133-36. The

postconviction court ultimately denied his request for postconviction relief with

respect to the claim, stating in pertinent part:

Defendant maintains counsel was ineffective for

failing to object to the testimony of Demetrius, because

his testimony from 2008 substantially differed from

the testimony he gave in 2011. Specifically, Defendant

states Demetrius testified to more details about the

offenses than what he testified to during the 2008

trial. Defendant attributes this change in testimony to

Demetrius allegedly being present in the courtroom for

the duration of Defendant’s 2008 trial.

Upon review of Demetrius’s 2008 and 2011

testimony, the Court finds an objection to Demetrius’s

testimony would have been meritless. Demetrius’s

testimony did not substantially change due to the fact

he was present in the courtroom during the 2008 trial.

Instead, it differed because the State asked him to

read all three letters in their entirety during the 2011

trial (Exs. G at 698-739; H at 869-84; J.)[14] Notably,

13F

the State admitted all three of Defendant’s letters as

exhibits during the first trial; however, Demetrius

only read specific portions for the jury. (Exs. H at 869-

84; K.) Thus, his testimony did not substantially

change in content; he merely read the letters in full.

As such, counsel cannot be deemed ineffective for

failing to object to Demetrius’s testimony because his

testimony substantially changed, as the objection

would have been meritless. Schoenwetter v. State, 46

So. 3d 535, 546 (Fla. 2010) (concluding counsel cannot

be deemed ineffective for failing to make a meritless

objection). Accordingly, Defendant is not entitled to

relief.

Doc. 8-10 at 1-2. The First DCA affirmed the postconviction court’s denial of

relief and denied his motion for rehearing.

To the extent that the appellate court decided Wilder’s ineffectiveness

claim on the merits, the Court will address the claim in accordance with the

deferential standard for federal court review of state court adjudications. After

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

state court’s adjudication of the claim was not contrary to clearly established

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

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

in light of the evidence presented in the state court proceedings. Thus, Wilder

is not entitled to relief on the basis of this ineffectiveness claim.

14 Docs. 8-10 at 137-73; 8-11 at 7-22.

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

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

because the record supports the postconviction court’s conclusion. Counsel

cannot be deficient for failing to raise a meritless argument. See Diaz v. Sec’y

for the Dep’t of Corr., 402 F.3d 1136, 1142 (11th 2005). As such, Wilder has

failed to carry his burden of showing that his counsel’s representation fell

outside that range of reasonably professional assistance. Even assuming

arguendo deficient performance by defense counsel, Wilder has not shown any

resulting prejudice. He has not shown that a reasonable probability exists that

the outcome of the case would have been different if counsel had acted as

Wilder claims he should have. His ineffectiveness claim is without merit since

he has shown neither deficient performance nor resulting prejudice.

Accordingly, Wilder is not entitled to federal habeas relief on his

ineffectiveness claim in ground four.

D. Ground Five

As ground five, Wilder asserts that counsel was ineffective because he

failed to file a notice of alibi defense. Petition at 16. According to Wilder, due

to counsel’s failure to file a notice, the trial court could not instruct the jurors

on an alibi defense, which prohibited them from considering Wilder’s alibi “as

a mitigating factor.” Id. at 17. He maintains that Leroy Brown was an available

alibi witness whom counsel failed to call.15 Id. at 16-17. Respondents argue

14F

that Wilder did not exhaust this ineffectiveness claim in the state courts, and

thus, the claim is procedurally barred. See Response at 42-45. The Court

agrees that the claim has not been exhausted, and is therefore procedurally

barred since Wilder failed to raise the claim in a procedurally correct manner.

Wilder has not shown either cause excusing the default or actual prejudice

resulting from the bar.16 Moreover, he has failed to identify any fact

15F

warranting the application of the fundamental miscarriage of justice

exception.

Even assuming Wilder’s ineffectiveness claim is not procedurally barred,

Wilder is not entitled to relief. Counsel did not request an alibi jury instruction

because he did not pursue an alibi defense.17 Given the State’s exceedingly

16F

strong evidence against Wilder, counsel may have decided that a trial strategy

of calling Brown, a convicted felon, as an alibi witness was not the best defense

15 See Section B (Ground Two discussion).

16 “To overcome the default, a prisoner must also demonstrate that the

underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is

to say that the prisoner must demonstrate that the claim has some merit.” Martinez,

132 S. Ct. at 1309. As discussed in the alternative merits analysis that follows, this

ineffectiveness claim lacks any merit. Therefore, Wilder has not shown that he can

satisfy an exception to the bar.

17 On August 11, 2008, counsel (Refik W. Eler) filed a notice of alibi, stating

that Wilder asserted he was with Leroy Brown and/or “Jewel” at the time of the

crimes. See Docs. 8-11 at 173; 8-4 at 15, 18; 8-11 at 49, 52 (Wilder’s letter to Demetrius

describing “Jewel”).

strategy. Moreover, as previously discussed, upon the trial court’s inquiry,

Wilder acknowledged that counsel neither refused to call any witnesses that

Wilder wanted nor failed to perform as Wilder instructed. See Doc. 8-4 at 115.

On this record, Wilder has failed to carry his burden of showing that his

counsel’s representation fell outside that range of reasonably professional

assistance. Even assuming arguendo deficient performance by defense counsel,

Wilder has not shown any resulting prejudice. He has not shown that a

reasonable probability exists that the outcome of the case would have been

different if counsel had acted as Wilder asserts he should have. His

ineffectiveness claim is without merit since he has shown neither deficient

performance nor resulting prejudice. Accordingly, Wilder is not entitled to

federal habeas relief on his ineffectiveness claim in ground five.

E. Ground Six

As ground six, Wilder asserts that counsel was ineffective because he

failed to impeach State witness David Edwards’ 2011 trial testimony

(regarding telephone calls made between Michelle Walker’s phone to Edwards’

phone during the early morning hours on the day of the shooting) with

Edwards’ 2008 trial testimony. Petition at 18-19; Reply at 12-13. Wilder

submitted excerpts of Edwards’ 2011 trial testimony, Doc. 9-11 at 2-4, and his

2008 trial testimony, id. at 7-9. Wilder maintains that the State sought to

establish that he had Michelle Walker’s phone when the crimes were

committed, and if counsel had impeached Edwards’ testimony, “there is a high

probability that there would have been a difference in the trial outcome.” Reply

at 13. Respondents argue that Wilder did not exhaust this ineffectiveness claim

in the state courts, and thus, the claim is procedurally barred. See Response at

49-50. The record reflects that Respondents are correct. Wilder did not exhaust

this claim, and it is therefore procedurally barred since Wilder failed to raise

the claim in a procedurally correct manner. Wilder has not shown either cause

excusing the default or actual prejudice resulting from the bar.18 Moreover, he

17F

has failed to identify any fact warranting the application of the fundamental

miscarriage of justice exception.

Even assuming Wilder’s ineffectiveness claim is not procedurally barred,

Wilder is not entitled to relief. Counsel extensively cross-examined Edwards

during the 2011 trial, Doc. 8-3 at 506-17, and asserted during closing argument

that Edwards lied on the stand, Doc. 8-4 at 173. Upon review of Edwards’ 2011

testimony (Doc. 8-3 at 495-518) and his 2008 testimony (Doc. 8-11 at 110-71),

Wilder has failed to carry his burden of showing that his counsel’s

representation fell outside that range of reasonably professional assistance.

Even assuming arguendo deficient performance by defense counsel, Wilder has

18 As discussed in the alternative merits analysis that follows, this

ineffectiveness claim lacks any merit. Therefore, Wilder has not shown that he can

satisfy an exception to the bar.

not shown any resulting prejudice. He has not shown that a reasonable

probability exists that the outcome of the case would have been different if

counsel had acted as Wilder claims he should have. His ineffectiveness claim

is without merit since he has shown neither deficient performance nor

resulting prejudice. Accordingly, Wilder is not entitled to federal habeas relief

on his ineffectiveness claim in ground six.

F. Ground Seven

As ground seven, Wilder asserts that counsel was ineffective because he

failed to impeach the identification testimony of Keonna Diamond and

Detective Glenn Warkentien. Petition at 20-22. Once again, Respondents

argue that Wilder did not exhaust this ineffectiveness claim, and thus, the

claim is procedurally barred. See Response at 54-55. And, the record reflects

that Respondents are, again, correct. As such, the claim is procedurally barred

since Wilder failed to raise the claim in a procedurally correct manner. Wilder

has not shown either cause excusing the default or actual prejudice resulting

from the bar.19 Moreover, he has failed to identify any fact warranting the

18F

application of the fundamental miscarriage of justice exception.

19 As with his other procedurally barred claims, the alternative merits analysis

that follows reflects that this ineffectiveness claim lacks any merit. Thus, Wilder has

not shown that he can satisfy an exception to the bar.

Even assuming Wilder’s ineffectiveness claim is not procedurally barred,

Wilder is not entitled to relief. The record establishes that counsel did cross-

examine both Diamond and Warkentien regarding their identification

testimony, and also commented on their testimony during closing argument.

Docs. 8-3 at 100-113, 489-93; 8-4 at 144-84. Wilder fails to suggest what counsel

should have done differently, or why his cross-examination was inadequate.

On this record, Wilder has failed to carry his burden of showing that his

counsel’s representation fell outside that range of reasonably professional

assistance. Even assuming arguendo deficient performance by defense counsel,

Wilder has not shown any resulting prejudice. He fails to present any evidence

suggesting that a reasonable probability exists that the outcome of the case

would have been different if counsel had performed as Wilder suggests. His

ineffectiveness claim is without merit since he has shown neither deficient

performance nor resulting prejudice. Accordingly, Wilder is not entitled to

federal habeas relief on his ineffectiveness claim in ground seven.

G. Ground Eight

As ground eight, Wilder asserts that the cumulative effect of his

counsel’s errors (as alleged in grounds two through seven) deprived him of a

fair trial. Petition at 23-24; Reply at 15. Wilder raised the cumulative error

claim in his Rule 3.850 motion (ground nine). Doc. 8-8 at 83. The postconviction

court ultimately denied the Rule 3.850 motion with respect to the claim, stating

in pertinent part:

Defendant maintains the cumulative impact of

counsel’s deficiencies deprived him of a fair trial. It is

well settled that a claim of cumulative error cannot

stand in cases where, following individual evaluation,

alleged errors are found to be without merit or

procedurally barred. Lukehart v. State, 70 So. 3d 503,

524 (Fla. 2011); see Suggs v. State, 923 So. 2d 419, 442

(Fla. 2005) (holding that when a defendant does not

successfully prove any of his individual claims and,

consequently, counsel’s performance is deemed

sufficient, a claim of cumulative error must fail);

Parker v. State, 904 So. 2d 370, 380 (Fla. 2005)

(“Because the alleged individual errors are without

merit, the contention of cumulative error is similarly

without merit.”). Here, Defendant has not

demonstrated that counsel was ineffective under

either prong of Strickland. Accordingly, Defendant is

not entitled to relief.

Doc. 8-10 at 5-6. The First DCA affirmed the postconviction court’s denial of

relief and denied Wilder’s motion for rehearing.

To the extent that the appellate court decided Wilder’s claim on the

merits, the Court will address the claim in accordance with the deferential

standard for federal court review of state court adjudications. After a review of

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

adjudication of the claim was not contrary to clearly established federal law,

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

and was not based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceedings. Thus, Wilder is not entitled

to relief on the basis of the cumulative error claim.

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

not entitled to deference, Wilder’s claim is without merit because the record

fully supports the postconviction court’s conclusion. Where all individual

claims are meritless, the claim of cumulative error is also without merit.

Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012); Lundberg

v. Sec’y, Fla. Dep’t of Corr., 808 F. App’x 725, 738 (11th Cir. 2020). As explained

in greater detail above, each of Wilder’s ineffectiveness claims is meritless.

Thus, his assertion of cumulative error is likewise without merit. Accordingly,

Wilder is not entitled to federal habeas relief on his claim in ground eight.

VII. Certificate of Appealability

Pursuant to 28 U.S.C. § 2253(c)(1)

If Wilder seeks issuance of a certificate of appealability, the undersigned

opines that a certificate of appealability is not warranted. The Court should

issue a certificate of appealability only if the petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make

this substantial showing, Wilder “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, 537 U.S.

at 335-36 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

Where a district court has rejected a petitioner’s constitutional claims on

the merits, the petitioner must demonstrate that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.

See Slack, 529 U.S. at 484. However, when the district court has rejected a

claim on procedural grounds, the petitioner must show that “jurists of reason

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

of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. Upon

consideration of the record as a whole, the Court will deny a certificate of

appealability.

Therefore, it is now

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED

WITH PREJUDICE.

2. The Clerk of the Court shall enter judgment denying the Petition

and dismissing this case with prejudice.

3. If Wilder appeals the denial of the Petition, the Court denies a

certificate of appealability. Because the Court has determined that a certificate

of appealability is not warranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed

in this case. Such termination shall serve as a denial of the motion.

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

any pending motions.

DONE AND ORDERED at Jacksonville, Florida, this 7th day of June,

2022.

MARCIA MORALES HOWARD

United States District Judge

Jax-1 6/7

C:

Isaac Wilder, FDOC #126521

Counsel of Record

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