# Cockrum v. Secretary Florida Department Of Corrections (Duval County)

> District Court, M.D. Florida · August 12, 2022

URL: https://www.frixlaw.com/law-library/cases/10110679

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 12, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DONMONIQUE COCKRUM,

Petitioner,

v. Case No. 3:19-cv-786-TJC-JBT

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,

Respondents.
________________________________

ORDER
I. Status
Petitioner, an inmate of the Florida penal system, is proceeding on a pro
se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1). He
challenges a state court (Duval County, Florida) judgment of conviction for
attempted second degree murder. He is serving a thirty-year prison sentence.
Respondents filed a Response (Doc. 10) with exhibits (Docs. 10-1 to 10-3; “Resp.
Ex.”). Petitioner filed a Notice indicating he would not file a reply (Doc. 12). This
case is ripe for review.1

1 “In a habeas corpus proceeding, the burden is on the petitioner to establish the need
for an evidentiary hearing.” Jones v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318
(11th Cir. 2016) (citing 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
II. Governing Legal Principles
A. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner’s federal habeas corpus petition. See Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir.
2016). “‘The purpose of AEDPA is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice systems,
and not as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S.
34, 38 (2011)).
The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the petitioner’s claims on the merits. See
Marshall v. Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The
state court need not issue an opinion explaining its rationale in order for the
state court’s decision to qualify as an adjudication on the merits. See Harrington

v. Richter, 562 U.S. 86, 100 (2011). Where the state court’s adjudication on the
merits is unaccompanied by an explanation,

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) (citation omitted). “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.” Id. The Court finds that
“further factual development” is not necessary. Turner v. Crosby, 339 F.3d 1247, 1275
(11th Cir. 2003). Thus, an evidentiary hearing will not be conducted.
the federal court should “look through” the unexplained
decision to the last related state-court decision that
does provide a relevant rationale. It should then
presume that the unexplained decision adopted the
same reasoning. But the State may rebut the
presumption by showing that the unexplained
affirmance relied or most likely did rely on different
grounds than the lower state court’s decision, such as
alternative grounds for affirmance that were briefed or
argued to the state supreme court or obvious in the
record it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
When a state court has adjudicated a petitioner’s claims on the merits, a
federal court cannot grant habeas relief unless the state court’s adjudication of
the claim was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States,” or “was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding,” 28 U.S.C. § 2254(d)(1),
(2). A state court’s factual findings are “presumed to be correct” unless rebutted
“by clear and convincing evidence.” Id. § 2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that
state-court decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010) (internal
quotation marks omitted). “A state court’s
determination that a claim lacks merit precludes
federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court’s
decision.” Richter, 562 U.S. at 101 (internal quotation
marks omitted). “It bears repeating that even a strong
case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. [at 102] (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The
Supreme Court has repeatedly instructed lower federal
courts that an unreasonable application of law requires
more than mere error or even clear error. See, e.g.,
Mitchell v. Esparza, 540 U.S. 12, 18 (2003); Lockyer,
538 U.S. at 75 (“The gloss of clear error fails to give
proper deference to state courts by conflating error
(even clear error) with unreasonableness.”); Williams v.
Taylor, 529 U.S. 362, 410 (2000) (“[A]n unreasonable
application of federal law is different from an incorrect
application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal
citations modified).
B. Exhaustion and Procedural Default
There are prerequisites to federal habeas review. Before bringing a § 2254
habeas action in federal court, a petitioner must exhaust all state court
remedies that are available for challenging his state conviction. See 28 U.S.C.
§ 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]”
every issue raised in his federal petition to the state’s highest court, either on
direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351
(1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners
must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate
review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope
v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the
state collateral review process as well as the direct appeal process.”).

In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28
U.S.C. § 2254(b)(1), thereby giving the State the
“‘opportunity to pass upon and correct’ alleged
violations of its prisoners’ federal rights.” Duncan v.
Henry, 513 U.S. 364, 365 (1995) (per curiam) (quoting
Picard v. Connor, 404 U.S. 270, 275 (1971)). To provide
the State with the necessary “opportunity,” the
prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme
court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim.
Duncan, 513 U.S. at 365-66; O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal citations modified).
A state prisoner’s failure to properly exhaust available state remedies
results in a procedural default which raises a potential bar to federal habeas
review. The United States Supreme Court has explained the doctrine of
procedural default as follows:
Federal habeas courts reviewing the constitutionality
of a state prisoner’s conviction and sentence are guided
by rules designed to ensure that state-court judgments
are accorded the finality and respect necessary to
preserve the integrity of legal proceedings within our
system of federalism. These rules include the doctrine
of procedural default, under which a federal court will
not review the merits of claims, including
constitutional claims, that a state court declined to
hear because the prisoner failed to abide by a state
procedural rule. See, e.g., Coleman, 501 U.S. at 747-48;
Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977). A state
court’s invocation of a procedural rule to deny a
prisoner’s claims precludes federal review of the claims
if, among other requisites, the state procedural rule is
a nonfederal ground adequate to support the judgment
and the rule is firmly established and consistently
followed. See, e.g., Walker v. Martin, 131 S. Ct. 1120,
1127-28 (2011); Beard v. Kindler, 130 S. Ct. 612, 617-
18 (2009). The doctrine barring procedurally defaulted
claims from being heard is not without exceptions. A
prisoner may obtain federal review of a defaulted claim
by showing cause for the default and prejudice from a
violation of federal law. See Coleman, 501 U.S. at 750.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012) (internal citations modified). Thus,
procedural defaults may be excused under certain circumstances.
Notwithstanding that a claim has been procedurally defaulted, a federal court
may still consider the claim if a state habeas petitioner can show either (1) cause
for and actual prejudice from the default; or (2) a fundamental miscarriage of
justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). For a petitioner to
establish cause and prejudice,
the procedural default “must result from some objective
factor external to the defense that prevented [him] from
raising the claim and which cannot be fairly
attributable to his own conduct.” McCoy v. Newsome,
953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Murray
v. Carrier, 477 U.S. 478, 488 (1986). Under the
prejudice prong, [a petitioner] must show that “the
errors at trial actually and substantially disadvantaged
his defense so that he was denied fundamental
fairness.” Id. at 1261 (quoting Carrier, 477 U.S. at 494).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999) (internal citations
modified).

In the absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally defaulted claim if the
petitioner can establish that a fundamental miscarriage of justice, the
continued incarceration of one who is actually innocent, otherwise would result.

The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive
consideration on the merits of his procedurally
defaulted claim. “[I]n an extraordinary case, where a
constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal
habeas court may grant the writ even in the absence of
a showing of cause for the procedural default.” Carrier,
477 U.S. at 496. “This exception is exceedingly narrow
in scope,” however, and requires proof of actual
innocence, not just legal innocence. Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

Ward, 592 F.3d at 1157 (internal citations modified). “To meet this standard, a
petitioner must ‘show that it is more likely than not that no reasonable juror
would have convicted him’ of the underlying offense.” Johnson v. Alabama, 256
F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)). Additionally, “‘[t]o be credible,’ a claim of actual innocence must be
based on reliable evidence not presented at trial.” Calderon v. Thompson, 523
U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity of such
evidence, in most cases, allegations of actual innocence are ultimately
summarily rejected. Schlup, 513 U.S. at 324.

C. Ineffective Assistance of Counsel
“The Sixth Amendment guarantees criminal defendants effective
assistance of counsel. That right is denied when a defense 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); Strickland v. Washington,
466 U.S. 668, 687 (1984)). Courts employ a two-part test when reviewing
ineffective assistance of counsel claims. See Strickland, 466 U.S. at 687.

To establish deficient performance, a person
challenging a conviction must show that “counsel’s
representation fell below an objective standard of
reasonableness.” 466 U.S. at 688. A court considering
a claim of ineffective assistance must apply a “strong
presumption” that counsel’s representation was
within the “wide range” of reasonable professional
assistance. Id. at 689. The challenger’s burden is to
show “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. at 687.

With respect to prejudice, a challenger must
demonstrate “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694. It is not enough
“to show that the errors had some conceivable effect on
the outcome of the proceeding.” Id. at 693. Counsel’s
errors must be “so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. at
687.

Richter, 562 U.S. at 104 (internal citations modified).2
There is no “iron-clad rule requiring a court to tackle one prong of the
Strickland test before the other.” Ward, 592 F.3d at 1163. Both prongs of the
two-part Strickland test must be satisfied to show a Sixth Amendment
violation; thus, “a court need not address the performance prong if the
petitioner cannot meet the prejudice prong, and vice-versa.” Id. (citing Holladay
v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). “If it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.” Strickland, 466 U.S. at
697.
A state court’s adjudication of an ineffectiveness claim is afforded great

deference.
“[T]he standard for judging counsel’s representation is
a most deferential one.” Richter, 562 U.S. at 105. But
“[e]stablishing that a state court’s application of

2 This two-part Strickland standard also governs a claim of ineffective assistance of
appellate counsel. Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016).
“Appellate counsel has no duty to raise every non-frivolous issue and may reasonably
weed out weaker (albeit meritorious) arguments. Generally, only when ignored issues
are clearly stronger than those presented, will the presumption of effective assistance
of counsel be overcome.” Id. (internal quotations and citations omitted). To satisfy the
prejudice prong, a petitioner must show a reasonable probability that “but for the
deficient performance, the outcome of the appeal would have been different.” Black v.
United States, 373 F.3d 1140, 1142 (11th Cir. 2004); see also Philmore v. McNeil, 575
F.3d 1251, 1264-65 (11th Cir. 2009) (prejudice results only if “the neglected claim
would have a reasonable probability of success on appeal”).
Strickland was unreasonable under § 2254(d) is all the
more difficult. The standards created by Strickland
and § 2254(d) are both highly deferential, and when
the two apply in tandem, review is doubly so.” Id.
(citations and quotation marks omitted). “The
question is not whether a federal court believes the
state court’s determination under the Strickland
standard was incorrect but whether that
determination was unreasonable - a substantially
higher threshold.” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009) (quotation marks omitted). If there is
“any reasonable argument that counsel satisfied
Strickland’s deferential standard,” then a federal
court may not disturb a state-court decision denying
the claim. Richter, 562 U.S. at 105.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (internal
citations modified). In other words, “[i]n addition to the deference to counsel’s
performance mandated by Strickland, the AEDPA adds another layer of
deference--this one to a state court’s decision--when we are considering whether
to grant federal habeas relief from a state court’s decision.” Rutherford v.
Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such, “[s]urmounting
Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,
371 (2010).
III. Analysis
To place the issues in context, the Court provides a brief summary of the
pertinent trial testimony. The victim, Kelley Williams, testified that he grew up
with Petitioner, and Williams did not want to testify against Petitioner because
Petitioner was like a brother to him. Resp. Ex. B at 39, 72. Williams testified
that Petitioner and Sharmiya Middleton had a child together, but at the time
of the shooting (October 5, 2009), Williams was in a relationship with

Middleton. Id. at 41-42. Williams stated that on October 5, 2009, he was on the
porch of Middleton’s apartment with Middleton and Petitioner. See id. at 44-46.
Middleton and Petitioner began arguing over finances, and Petitioner started
choking Middleton. See id. at 46-47. Williams then put Petitioner in a headlock

and told Petitioner to let go of Middleton because Middleton was pregnant with
Williams’ baby. See id. at 47-49. Petitioner let go of Middleton and said, “we’re
going to finish this later,” and he left. Id. at 49.
Williams then went back to his house and about 30 minutes after the

confrontation with Petitioner, Williams was outside on the porch smoking a
marijuana cigarette when he saw three individuals riding bicycles toward his
house. Id. at 51-52, 54. Williams testified that one of the individuals on a bicycle
was Petitioner. Id. at 53. Williams stated that Petitioner “hopped off the

handlebars” of his bike, and another individual handed Petitioner a gun. Id. at
54. Williams stood up, and when Petitioner raised the gun toward Williams,
Williams ran inside the house. Id. at 54-55, 86. While going inside, Williams
“heard like three shots” and “glass falling.” Id. at 56. Williams stayed inside for

about ten seconds and when he exited his house, he saw Petitioner and the two
other individuals riding off. Id. 57-58. After the shooting, but before the police
arrived, Petitioner called Williams’ cell phone and asked Williams why he called
the police. Id. at 59. Williams told Petitioner that he did not call the police but
his mother did. Id. On cross-examination, Williams testified that he had gotten

up from the chair on the porch and entered the house before Petitioner began
shooting; thus, he did not actually see Petitioner pull the trigger. Id. at 84.
Quillian Addison, one of Williams’ neighbors, also testified. Id. at 93.
According to Addison, on October 5, 2009, he walked into his yard and saw three

black males who he did not recognize riding bicycles in circles on his dead-end
street. Id. at 95, 97. One of the individuals got off the bicycle, retrieved
something from one of the other individuals, and then walked to the edge of the
sidewalk and started shooting at Williams’ house. Id. at 95-96, 98. Addison

described the shooter as a short black male with a light skinned complexion. Id.
at 97-98. A few minutes after the shooting, Addison spoke to Williams, and
Williams identified the shooter as Petitioner. Id. at 99-100.
Officer Isaiah Fields with the Jacksonville Sheriff’s Office testified that

in response to a domestic violence report, he was dispatched to Middleton’s
apartment on October 5, 2009. Id. at 108-09. Officer Fields observed redness
around Middleton’s neck and a bite mark on her. Id. at 110. Based on the
information Middleton provided, Officer Fields attempted to make contact with

Petitioner. Id. at 111. Officer Fields was then dispatched to Williams’ house in
regard to the shooting, where he observed “that the house had been shot by a
small-caliber bullet . . . [that] went through the window and finally lodged into
an interior room’s wall.” Id. at 111-12, 113. After speaking with Williams,
Officer Fields confirmed that the domestic violence situation at Middleton’s

apartment was related to the shooting at Williams’ home. Id. at 114. Officer
Fields also testified that Williams identified Petitioner as the shooter. Id. at
114-15.
Detective Tracy Stapp testified that he searched the scene and found one

shell casing and located five bullet strikes in the home. Id. at 130, 134. He
testified that the strikes were around the window, and he was able to locate the
“corresponding holes along the back wall [of the house] opposite of the window.”
Id. at 136. He confirmed that the evidence showed someone shot at the house

multiple times. Id. at 138-39.
After the state rested its case, Petitioner testified on his own behalf. He
stated that on October 5, 2009, Middleton called him and invited him to her
apartment to see the children. Id. at 161. At some point, Middleton hit

Petitioner “out of the blue,” id. at 163, which caused Petitioner to drop his son,
id. at 164. Middleton continued to “throw[] the punches” and “[t]hat’s when
[Petitioner] had to grab her, and then [they] started tussling.” Id. At that point,
“some black dude who had long twists in his hair . . . stepped up” and hit

Petitioner with a gun. Id. Petitioner confirmed that he was friends with
Williams, but denied that Williams was present at Middleton’s apartment that
day. Id. at 165. Petitioner then left and went to his grandma’s house. Id. at 166.
Petitioner explicitly denied shooting at Williams’ home. Id. at 169.

A. Ground One

Petitioner argues that his appellate counsel was ineffective for failing to
raise on direct appeal the trial court’s error in denying Petitioner’s motion for
judgment of acquittal. Doc. 1 at 5. According to Petitioner, he is “actually
innocent of the charge of attempted second degree murder” and the evidence at
trial showed “at best, [he] is only guilty of shooting into an occupied dwelling.”
Id.
Petitioner raised this claim in his state court habeas petition alleging

ineffective assistance of appellate counsel. Resp. Ex. L. The First District Court
of Appeal per curiam denied the petition on the merits. Resp. Ex. M.
This Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. The record

supports the state court’s decision. Considering the evidence presented by the
state, the trial court properly denied Petitioner’s motion for judgment of
acquittal. Thus, appellate counsel cannot be deemed ineffective for failing to
raise that issue on direct appeal. See Diaz v. Sec’y for the Dep’t of Corr., 402

F.3d 1136, 1145 (11th Cir. 2005) (“[N]onmeritorious claims that are not raised
on appeal do not constitute ineffective assistance of counsel.”). As such, the
Court concludes that the state court’s adjudication of this claim was not
contrary to clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based on an

unreasonable determination of the facts in light of the evidence presented.
Accordingly, Petitioner is not entitled to federal habeas relief on this claim.3
B. Ground Two
Petitioner contends that his appellate counsel was ineffective for failing

to raise on direct appeal the issue of prosecutorial misconduct during the state’s
closing argument. Doc. 1 at 7. Petitioner claims that during the state’s closing
argument, the prosecutor improperly stated numerous times that the witness
(Addison) and victim (Williams) testified that Petitioner shot at Williams.

However, according to Petitioner, neither the witness nor the victim testified
that Petitioner shot at the victim but instead, they testified that he shot at the
victim’s home.

3 Insofar as Petitioner attempts to raise a freestanding actual innocence claim, he is
not entitled to any relief. Eleventh Circuit “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.” Raulerson v. Warden, 928 F.3d 987, 1004 (11th Cir. 2019) (internal
quotations and citation omitted); see also Cunningham v. Dist. Attorney’s Off. for
Escambia Cnty., 592 F.3d 1237, 1272 (11th Cir. 2010) (“[T]his Court’s own precedent
does not allow habeas relief on a freestanding innocence claim in non-capital cases”);
Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1356 (11th Cir. 2007) (“[O]ur precedent
forbids granting habeas relief based upon a claim of actual innocence, anyway, at least
in non-capital cases.”). Additionally, Petitioner’s “actual innocence” argument is
simply a disagreement with the jury’s verdict. But “[f]ederal courts are not forums in
which to relitigate state trials.” Herrera v. Collins, 506 U.S. 390, 401 (1993).
Petitioner raised this claim in his state court habeas petition alleging
ineffective assistance of appellate counsel. Resp. Ex. L. The First District Court

of Appeal per curiam denied the petition on the merits. Resp. Ex. M.
This Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. The record
supports the state court’s decision. During Williams’ testimony, both sides

focused on exactly where Williams was when the shots were being fired. During
his direct examination by the state, the following exchange occurred:
Q When he raised the firearm up at you, did
you stand there?

A No.

Q Okay. Where did you run to?

A In the house.

Q And as you were running in the house, did
you hear anything?

A Yes. I heard like three shots, and I heard
glass falling. Then I looked around and seen everyone
ducking. My mom was yelling like, What is going on,
what is going on?

Resp. Ex. B at 56. On cross-examination, Petitioner’s counsel inquired of
Williams:
Q Would you agree, however, that before any
shots were fired, you got up, went into the house, and
closed the door; am I right about that?
A Yes, sir.

Q And only after that shots were fired?

A Yes, sir.

Id. at 84. On re-direct, the prosecutor asked Williams, “And when the shots were
being fired, were they being fired as you were running through the door?” Id. at
86. Williams responded, “You might as well say.” Id. Additionally, Addison
testified that he did not know that Williams was out on the porch because he
was focused on the three individuals on the bicycles. Id. at 98.
During closing argument,4 the prosecutor stated: “Well, what did Mr.
Addison say? I saw some guy I don’t know hand what appeared to be a gun to a
short, light brown skinned black male, and then they started firing at Kelley
Williams.” Id. at 198. In summarizing Williams’ testimony during closing
argument, the prosecutor stated: “[Williams] told you, I don’t want to be here. I
have known that guy all of my life. I’m not happy to be here. He was like a

brother to me, but he shot up my mama’s house and he shot at me. I have to be
here.” Id. at 199.

4 In Petitioner’s state court petition alleging ineffective assistance of appellate counsel,
he quoted alleged improper statements by the prosecutor in his opening statement,
during witness examination, and during closing argument. See Resp. Ex. L at 3-6. In
the instant Petition, however, Petitioner only argues that the prosecutor made alleged
improper statements during closing argument. Doc. 1 at 7.
Initially, the Court notes that Petitioner’s trial counsel did not object to
the challenged statements during closing argument; thus, it is unclear if any

challenge was preserved for review on direct appeal. Regardless, “[t]o find
prosecutorial misconduct, a two-pronged test must be met: (1) the remarks must
be improper, and (2) the remarks must prejudicially affect the substantial
rights of the defendant.” Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170, 1182

(11th Cir. 2010) (quotation and citation omitted). “If the misconduct fails to
render the trial fundamentally unfair, habeas relief is not available.” Id.
Considering the trial record as a whole, this Court finds that the alleged
improper statements did not render Petitioner’s trial fundamentally unfair.

Therefore, appellate counsel was not deficient for failing to raise this issue on
direct appeal. The record reflects that the state court’s adjudication of this claim
was not contrary to clearly established federal law, did not involve an
unreasonable application of clearly established federal law, and was not based

on an unreasonable determination of the facts in light of the evidence presented.
Thus, Petitioner is not entitled to federal habeas relief on this claim.
C. Ground Three
Petitioner claims that his trial counsel was ineffective “by failing to (a)

object to improper jury instructions; (b) provide Petitioner with discovery; (c)
improper conv[ey]ance of plea offer of 10 years; (d) cumulatively ineffective;
[and] (e) misidentification of Petitioner.” Doc. 1 at 8. Petitioner does not
elaborate on his arguments but notes that he raised each of these claims in his
post-conviction motion filed pursuant to Florida Rule of Criminal Procedure

3.850. Thus, the Court assumes Petitioner intends to raise the same ineffective
assistance of counsel claims that he did in his Rule 3.850 proceeding and
addresses each claim in turn.
i. Jury Instructions

In his Rule 3.850 motion, Petitioner argued that his trial counsel was
ineffective for failing to object to the erroneous jury instructions read by the
trial judge. Resp. Ex. H at 4-7, 20-23. Specifically, Petitioner argued that the
trial judge improperly instructed the jury that the crime of shooting or throwing

a deadly missile is a lesser included offense of attempted second degree murder.
Id. at 5, 21. He further argued that “Judge Soud failed to instruct the jury on
any ‘necessary’ lesser-included offenses and only instructed on the questionable
‘permissive’ lesser-included offense of shooting or throwing deadly missiles.” Id.

at 22.5 According to Petitioner, this error precluded the jury from being “able to
exercise its inherent pardon power.” Id. at 23.
The postconviction court denied the claim:
Defendant alleges counsel was ineffective for
failing to object to a jury instruction for shooting or
throwing a deadly missile, which Defendant claims is

5 Notably, at the time of Petitioner’s trial, there were no category one lesser-included
offenses for attempted second degree murder. See Resp. Ex. H at 4, 21; see also Fla.
Std. Jury Instr. (Crim) 6.4 (4th ed. 2002).
not a lesser included offense of attempted second
degree murder. According to Defendant, the Court also
failed to read any of the necessarily lesser included
offenses. Defendant claims he was prejudiced, because
these alleged failures interfered with the jury’s
“pardon power.”

Two types of lesser included offenses exist under
Florida law: necessary (“Category One”) and
permissive (“Category Two”). Wright v. State, 983 So.
2d 6, 8 (Fla. 1st DCA 2007). A Category One offense is
an offense in which the statutory elements of the
lesser included offense are necessarily included within
those of the charged offense. Id. On the other hand, for
an offense to be considered a Category Two offense, the
indictment or information must allege all the
statutory elements of the subject lesser offense and the
evidence at trial must establish each of these
elements. Id. at 9. Pursuant to section 790.19, Florida
Statutes, a defendant is guilty of shooting or throwing
a deadly missile if he or she wantonly or maliciously
shoots or throws a deadly missile at, within, or into a
public or private building that is either occupied or
unoccupied.

The record reflects the information included all
of the elements of shooting or throwing a deadly
weapon. The record further reflects Defendant shot a
firearm into the home of the victim because he was
upset with the victim. Accordingly, both the charging
document and evidence presented at trial supported
an instruction for shooting or throwing a deadly
missile. Therefore, counsel properly requested this
offense as a lesser-included offense.

As to Defendant’s claim trial counsel failed to
request certain lesser-included offenses during
deliberation over the jury instructions, the Defendant
is relying on the possibility of the jury’s “pardon
power” to establish prejudice. However, the mere
possibility that the jury could have found the
Defendant guilty of a lesser included offense, had it
been included, is not sufficient to support a finding of
prejudice in an ineffective assistance of counsel claim.
See Sanders v. State, 946 So. 2d 953, 959-60 (Fla.
2006) (holding that, although the failure to instruct
the jury on a Category One offense can be per se
reversible error on direct appeal, the mere possibility
that jury might have exercised its pardon power
cannot support an ineffective assistance of counsel
claim in a postconviction motion). Accordingly,
Defendant has failed to demonstrate[] prejudice. For
the above stated reasons, Ground One is without
merit.

Resp. Ex. H at 156-57 (internal record citations omitted). Petitioner appealed
the denial of his Rule 3.850 motion, but when he failed to file an initial brief as
directed, the First DCA dismissed his appeal. Resp. Ex. K. Because Petitioner
did not fully exhaust this claim, the Court considers the claim on the merits.6
During the trial, the following discussion occurred outside the jury’s
presence:
THE COURT: . . . [F]irst let me ask do you wish
to have the lesser included of shooting, throwing deadly
missile even though my understanding is it is not
category 1 or 2?

6 Respondents assert that Petitioner exhausted his ineffective assistance of trial
counsel claims by presenting them in his Rule 3.850 proceeding. See Doc. 10 at 33.
Because Petitioner failed to 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, 526 U.S. at 845, he did not properly exhaust
these claims. Nevertheless, the Court will proceed to address the claims on the merits.
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.”).
[THE STATE]: It’s not, Your Honor.

THE COURT: Do you wish to have the lesser
included of shooting or throwing a deadly missile
added?

[DEFENSE COUNSEL]: Judge, I just spoke with
my client and [the state] about that. I’d like to wait
until all of the evidence has been presented.

Resp. Ex. B at 157. At the close of all the evidence, the following occurred:
THE COURT: . . . Mr. Blaisdell [(defense
counsel)], let me ask you what is your client’s
preference on the lesser included of shooting or
throwing a deadly missile?

[DEFENSE COUNSEL]: Judge, we would like
the version of the instruction that includes the lesser
included.

THE COURT: That includes?
Does the state have any objection to that
inclusion?

[THE STATE]: No, sir. I believe even if I did,
based on the facts presented before this Court, I think
the Court would probably provide it anyway, so, no, sir.

Id. at 185-86.
In closing argument, Petitioner’s counsel, while not conceding Petitioner’s
guilt, argued that the victim “got up, looked the shooter in the eye, and went
into the house, . . . and then shots were fired. So if we’re talking about this
lesser-included offense, even if you believe [the victim’s] testimony, I would
submit to you that attempted murder has not been proven here.” Id. at 220. He
continued, “[E]ven if you believe the state’s evidence, the correct verdict would
be the lesser included of firing a deadly missile into an occupied residence.” Id.

The trial court then instructed the jury as agreed to by the parties. After
reading the instructions on attempted second degree murder, the trial court
stated:
In considering the evidence, you should consider
the possibility that although the evidence may not
convince you that the defendant committed the main
crime of which he is accused, there may be evidence
that he committed other acts that would constitute a
lesser-included crime. Therefore, if you decide that the
main accusation has not been proven beyond a
reasonable doubt, you will need to decide if the
defendant is guilty of any lesser-included crime. The
lesser crime indicated in the definition of attempted
second-degree murder is shooting or throwing deadly
missiles.

Id. at 233.
The record reveals that Petitioner’s counsel’s strategy was to convince the
jury that Petitioner was not guilty, but if the jury believed the state’s evidence,
then at most, Petitioner was only guilty of “the lesser included” offense which
carried a lower penalty. Nevertheless, the jury instructions on attempted
second degree murder were proper and there was sufficient evidence to support
the conviction. Indeed, the jury’s verdict reflects their belief that the state
proved beyond a reasonable doubt that Petitioner was guilty of attempted
second degree murder. This Court presumes that the jury acted in accordance
with the law. See Strickland, 466 U.S. at 694. Consequently, the jury, following
the trial court’s instructions, would not have convicted Petitioner of any lesser

included offense, even if the judge had given such instructions. See Sanders v.
State, 946 So. 2d 953, 958 (Fla. 2006) (recognizing that in Florida, a jury may
convict a defendant of a lesser included offense “only if it decides that the main
accusation has not been proved beyond a reasonable doubt”); see also

Strickland, 466 U.S. at 694-95 (noting in determining whether prejudice exists,
a court should presume the “jury acted according to the law,” and “[a]n
assessment of the likelihood of a result more favorable to the defendant must
exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the

like. A defendant has no entitlement to the luck of a lawless decisionmaker,
even if a lawless decision cannot be reviewed.”); Magnotti v. Sec’y for Dep’t of
Corr., 222 F. App’x 934, 940 (11th Cir. 2007)7 (“[A]ssuming without deciding
that [the petitioner’s] counsel was deficient in failing to request jury

instructions on other lesser included offenses, that deficiency does not suggest
that there was a reasonable probability that the outcome would have been
different because the jury had sufficient evidence to find [the petitioner] guilty

7 The Court does not rely on unpublished opinions as binding precedent; however, they
may be cited in this Order when the Court finds them persuasive on a particular
point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022); see
generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not
considered binding precedent, but they may be cited as persuasive authority.”).
of the greater offense.”). Petitioner’s argument to the contrary is based on pure
speculation. Thus, even assuming counsel was deficient in the manner

Petitioner suggests, Petitioner has not shown prejudice. Therefore, he is not
entitled to federal habeas relief on this claim.8
ii. Discovery and Plea Offer
According to Petitioner, his trial counsel was ineffective for failing to

review and provide him with copies of the discovery. Resp. Ex. H at 92. In his
Rule 3.850 motion, Petitioner argued that trial counsel never discussed the
discovery with him or the strengths and weaknesses of his case. Id. at 93. He
claimed that had counsel done so, he would have accepted the state’s 10-year

plea deal. Id. at 93-94.
After conducting an evidentiary hearing on this issue, the postconviction
court denied this claim:
Defendant claims counsel was ineffective for
failing to provide and review discovery with him.
According to Defendant, this failure prevented him
from participating in the formulation of his own
defense. Furthermore, it inhibited him from
understanding how strong or weak the State’s case

8 To the extent Petitioner argues that the trial judge erred by referring to “shooting or
throwing a deadly missile” as a “lesser included offense” when it is not listed as a
category one or two lesser included, such argument is of no moment. First, Petitioner
did not exhaust this trial court error claim on direct appeal. Second, the trial judge
clearly recognized it was not listed as a category one or two lesser-included offense and
defense counsel, after consultation with Petitioner, requested the instruction be given.
The state did not object to the instruction, noting that the evidence presented during
the trial supported that instruction.
was against him, which, in turn, led him to reject a
favorable plea deal. Defendant claims that but for
counsel’s failure to give and review discovery, he
would have accepted the plea, the State would not
have withdrawn it, the Court would have accepted it,
and he would have received a reduced sentence.

In order to state a facially sufficient claim that
an alleged deficient performance by counsel led to the
defendant’s non-acceptance of a plea offer, the
Defendant must allege the following: “that (1) he or
she would have accepted the offer had counsel advised
the defendant correctly, (2) the prosecutor would not
have withdrawn the offer, (3) the court would have
accepted the offer, and (4) the conviction or sentence,
or both, under the offer’s terms would have been less
severe than under the judgment and sentence that in
fact were imposed.” Alcorn v. State, 121 So. 3d 419,422
(Fla. 2013).

At the evidentiary hearing held on December 8,
2017, Defendant and his trial counsel, Christopher
Blaisdell, Esq., testified. Defendant testified in
conformance with his pleadings that counsel never
discussed or reviewed discovery with him, but also
testified counsel discussed speedy trial, DNA evidence,
and an alibi with him. Notably, Defendant testified
Mr. Blaisdell only visited him three times in jail from
when he took over the case on August 3, 2010 until
trial on July 7, 2011, which is corroborated by
documents from the Jacksonville Sheriff Office (“JSO”)
concerning Defendant’s movements and trial counsel’s
notes. Furthermore, the docket reflects during the
time Mr. Blaisdell represented Defendant, they were
present together in court eighteen times, but it is
Defendant’s contention they had limited discussion
during those eighteen court dates because there was
no separate holding cell in which to privately discuss
the case. Defendant further testified he chose not to
accept the ten-year plea deal because he had not
reviewed discovery and the State had difficulty in
locating the victim and it was their hope the victim
would not be present for trial. According to Defendant,
he had no idea the victim had been found until he
appeared on the stand the day of trial.

Mr. Blaisdell testified he did not have a specific
recollection of a general discussion with Defendant
about the facts of his case, but he did testify that it is
his general practice and procedure to discuss with his
defendants the facts of the case, discovery, relevant
law, and the maximum sentence. However, Mr.
Blaisdell did specifically remember discussing the
availability of the victim in this case with Defendant.
Indeed, Mr. Blaisdell’s attorney notes from the case
reflect discussions with Defendant concerning the
victim’s availability and speedy trial. Counsel further
testified[] it was the practice at the Public Defender’s
Office to not supply a physical copy of the discovery to
defendants unless it was absolutely necessary. The
Public Defender instituted this policy because it feared
portions of the discovery would go missing or be found
by other inmates who would then try to use the
discovery as a means to act as if they had inside
information or insight and try to create deals with the
prosecution as “informants.”

Mr. Blaisdell testified he informed Defendant
that the State had found the victim prior to trial, but
Defendant still insisted on proceeding to trial rather
than seek a continuance. Based on the State’s inability
to locate the victim, counsel and Defendant thought it
prudent to invoke Defendant’s speedy trial rights in
hopes the victim would not show up for trial. Mr.
Blaisdell testified he never told Defendant the victim
would not appear for trial, but that it was reasonable
to think he might not appear based on the State’s
inability to find the victim. According to Mr. Blaisdell,
on the day prior to trial, July 6, 2011, he visited
Defendant in jail, which is reflected in the JSO and
attorney note documents, during which counsel
testified he certainly would have discussed all facets of
the case with Defendant. In fact, Mr. Blaisdell stated
Defendant explained his version of events to counsel
and that they would have discussed the strength and
weakness of that version in conjunction with the
State’s evidence.

Regarding the ten-year plea offer, Mr. Blaisdell
testified he had no independent recollection of any
plea offer from the State in this case, let alone a ten-
year offer. Counsel noted nothing in his notes reflected
any plea offer from the State, and he testified it was
his habit and routine practice to memorialize in his
notes any and all plea negotiations. Likewise, no
transcript from any hearing date reflects a discussion
of any plea offer. Notably, Mr. Blaisdell testified the
prosecutor assigned to the case would not normally
proffer plea deals to defense counsels; instead, he
would state his openness to certain sentencing ranges
but put the burden on a defendant or defense counsel
to present a plea offer. However, counsel testified he
did not recall Defendant ever requesting a plea offer
be made to the State. Had Defendant requested an
offer be made, Mr. Blaisdell stated he would have
documented it, as per his general practice and routine.

According to Mr. Blaisdell, from the beginning of
their discussions, Defendant was as close to certain as
possible the victim would not show up for trial, which
meant there was no need for him to offer or accept any
plea. Defendant and the victim were friends, almost
like brothers, according to the victim’s testimony at
trial and Defendant’s statements to counsel pre-trial,
despite Defendant’s testimony at trial and at the
evidentiary hearing that they were not close. This
friendship is what fueled Defendant’s belief that if he
went to trial, the victim would not appear and it was
this mental calculus that led Defendant to decline
making a plea offer according to counsel.

Notably, at the evidentiary hearing, the State
introduced as its Exhibit Six a transcript from a
hearing held on July 5, 2011, which reflects Defendant
was present in open court with his attorney when a
discussion occurred concerning the State locating and
securing the victim’s presence for the trial. At that
hearing, Defendant also stated he had discussed the
victim’s availability and whether to move for a
continuance with his counsel. However, in his Motions
and at the evidentiary hearing, Defendant denied
knowing of the victim’s availability until the moment
the victim testified. The record refutes this contention
and demonstrates Defendant’s unreliability as a
witness.

Although Mr. Blaisdell’s memory of the case has
faded with time, his testimony of his habit and routine
“creates an inference which can be considered by the
trier of fact without corroborative evidence.” State v.
Avila, 43 So. 3d 936, 938 (Fla. 3d DCA 2010). Having
had an opportunity to view the demeanor of the
witnesses and compare it to the record as well as the
testimony and evidence presented at the hearing, the
Court finds Mr. Blaisdell’s testimony to be credible
and find[s] the inference of his general practice and
routine to be credible in the instant case. While the
Court does not condone the limited amount of
visitation Mr. Blaisdell had with his client, the Court
finds it does not rise to the level of deficiency
contemplated by Strickland for at least two reasons.

First, the decision not to supply hard copies of
discovery was reasonable given the policies of the
Public Defender and, although limited in the amount
of times they met, the Court is convinced Mr. Blaisdell
did discuss the discovery as well as the strengths and
weaknesses of the case as outlined in his testimony.
Second, the Court finds the State never offered
Defendant a ten-year plea deal, or any plea deal for
that matter. Therefore, as no plea deal existed,
Defendant’s claim of prejudice is without merit as the
entirety of his prejudice claim revolves around his
willingness to accept the plea had counsel properly
discussed the case with him prior to trial. For these
reasons, Defendant is not entitled to relief on Ground
Two.

Resp. Ex. H at 157-62. Petitioner appealed the denial of his Rule 3.850 motion,
but when he failed to file an initial brief as directed, the First DCA dismissed
his appeal. Resp. Ex. K. Because Petitioner did not fully exhaust this claim, the
Court considers the claim on the merits.
The state postconviction court credited the testimony of Petitioner’s trial
counsel and specifically found Petitioner was an unreliable witness. Absent
clear and convincing evidence to the contrary, the postconviction court’s factual
findings are entitled to a presumption of correctness. See Bishop, 726 F.3d at

1258 (citing 28 U.S.C. § 2254(e)(1)). Petitioner has not presented any evidence
to rebut this presumption, thus this Court has “no power on federal habeas
review to revisit the state court’s credibility determinations.” Id. at 1259.
The record supports the denial of this claim as Petitioner has failed to

show his counsel was deficient for not providing him hard copies of discovery.
Additionally, trial counsel testified that he would have reviewed with Petitioner
the discovery and the strengths and weaknesses of Petitioner’s case prior to
going to trial, and the postconviction court credited counsel’s testimony. Finally,

there is no indication that a plea offer was ever made. A thorough review of the
record shows this ineffectiveness claim has no merit and is due to be denied.
iii. Misidentification of Petitioner
In his Rule 3.850 proceeding, Petitioner argued that his trial counsel was

“ineffective for failing to adequately challenge and form a viable affirmative
defense to the misidentification of [Petitioner] by witness Quillian Addison and
the alleged victim Kelley Williams.” Resp. Ex. H at 33 (capitalization omitted).
The state postconviction court denied the claim:

Defendant alleges his counsel was ineffective for
failing to adequately challenge and form a viable
affirmative defense to the alleged misidentification of
Defendant as the suspect by Quillian Addison.
Defendant claims Mr. Addison told police he saw a
brown-skinned African-American male with
dreadlocks, but Defendant alleges he is a light-skinned
African-American who never wore dreadlocks.
Counsel, Defendant argues, should have impeached
Mr. Addison with this statement to police. Moreover,
Defendant contends counsel should have moved to
suppress Mr. Addison’s statements, because Mr.
Addison did not have sufficient information to identify
Defendant.

Defendant also claims his counsel was
ineffective for not adequately challenging the
identification made by the victim, Kelley Williams.
First, Defendant states counsel failed to depose Mr.
Williams, which resulted in a lack of prior statements
to possibly impeach Mr. Williams. Second, Defendant
alleges counsel failed to go to the apartment complex
where the incident occurred to search for
eyewitnesses. Third, Defendant claims that at trial
counsel should have highlighted the fact that Mr.
Williams never saw Defendant actually fire the
weapon because Mr. Williams was running inside the
house.
Concerning Mr. Addison, the record reflects he
was not wearing his glasses at the time of the incident
and did not identify Defendant as the suspect because
of how quickly everything occurred. However, Mr.
Addison remembered the shooter was a short African-
American male with brown skin and a light
complexion. As Mr. Addison did not identify Defendant
as the shooter, there would have been no basis to file
a motion to suppress his identification of Defendant as
the shooter. Furthermore, Mr. Addison’s trial
testimony was consistent with his statement to police
regarding Defendant’s complexion. Counsel cannot be
deemed ineffective for failing to raise a meritless
argument. Hitchcock v. State, 991 So. 2d 337, 361 (Fla.
2008). Furthermore, based on Mr. Williams own
identification testimony, Defendant cannot
demonstrate prejudice.

To the extent Defendant argues counsel was
ineffective for failing to depose Mr. Williams to
uncover potential inconsistencies or go to the
apartment complex to search for eyewitnesses,
Defendant’s claims are entirely speculative.
Defendant relies on the possibility Mr. Williams may
have made inconsistent statements had he been
deposed, but there is no certainty Mr. Williams would
have made inconsistent statements about material
facts. Likewise, to the extent Defendant argues
counsel should have searched for my [sic]
eyewitnesses, it is speculative to think an eyewitness
would come forward that the police investigation
missed and that this unknown eyewitness would have
corroborated Defendant’s story. Postconviction relief
cannot be based on speculation or possibility. Maharaj
v. State, 778 So. 2d 944, 951 (Fla. 2000). Accordingly,
Defendant is not entitled to relief on this claim.

Regarding Defendant[’]s claims of
ineffectiveness as it relates to failing to highlight Mr.
Williams never seeing the actual shooting, the record
demonstrates no deficiency or prejudice. The record
specifically reflects during cross-examination, counsel
asked Mr. Williams whether he saw shots fired from
Defendant’s gun, with Mr. Williams responding he
never saw Defendant actually shoot. Counsel raised
this fact during his closing argument as well.
Accordingly, the record demonstrates counsel did
highlight this fact for the jury during cross-
examination and closing argument.

Moreover, Mr. Williams testified he was a friend
of Defendant, a fact Defendant conceded at trial also.
Mr. Williams further testified Defendant raised a gun
as if to shoot it, at which point Mr. Williams fled into
his home hearing three gun shots and glass shattering
around him. It is a reasonable inference from these
facts alone that Defendant, a man Mr. Williams was
intimately familiar with, fired the shots. However,
there was more evidence identifying Defendant as the
shooter in the form of an eyewitness, Mr. Addison, who
corroborated the shooting, although not Defendant’s
identity. Accordingly, highlighting the fact Mr.
Williams never actually saw Defendant shoot would
not and did not have a reasonable probability of
affecting the outcome of the trial. For the above stated
reasons, Defendant cannot demonstrate deficient
performance or prejudice and is not entitled to relief
on Ground Five.

Resp. Ex. H at 163-66 (internal record citations omitted). Petitioner appealed
the denial of his Rule 3.850 motion, but when he failed to file an initial brief as
directed, the First DCA dismissed his appeal. Resp. Ex. K. Because Petitioner
did not fully exhaust this claim, the Court considers the claim on the merits.
Upon review of the record, the Court finds that Petitioner has shown
neither deficient performance nor resulting prejudice. During his trial
testimony, Addison provided a physical description of the shooter, and advised
that Williams told him within minutes of the shooting that “Donmonique” was
the shooter. Addison did not specifically identify Petitioner to the police; as

such, there was nothing to suppress prior to trial. Additionally, Petitioner’s
claims that counsel was ineffective for failing to depose Williams or search for
other eyewitnesses are based wholly on speculation. Therefore, Petitioner is not
entitled to federal habeas relief on this ground.

iv. Cumulative Effect
In his Rule 3.850 proceeding, Petitioner argued that the cumulative
impact of his counsel’s deficiencies violated his Sixth Amendment right to the
effective assistance of counsel and caused him to reject the state’s 10-year plea

offer.
After conducting an evidentiary hearing on this ground, the state
postconviction court denied the claim:
Defendant contends the cumulative errors of his
counsel prejudiced him, while also arguing counsel
failed to inform him of the strengths and weaknesses
of his case and the maximum penalty he faced. The
latter failure allegedly prejudiced Defendant because
he rejected a favorable plea deal.

At the evidentiary hearing, Defendant testified
he had researched on his own that his maximum
exposure was fifteen years for a second degree felony,
but this turned out to be wrong as he was actually
subject to a maximum sentence of thirty years in
prison due to the 10-20-Life statu[t]e. According to
Defendant, he asked his attorney what his maximum
exposure would be, but counsel never answered his
question. Conversely, his attorney testified accurately
about the 10-20-Life statu[t]e and how it enhances a
second degree felony to a first degree felony and
requires the imposition of a minimum mandatory
sentence. He further testified he absolutely would
have discussed the implications of this law on
Defendant’s maximum sentence, as was his general
practice and procedure. As stated above in the Court’s
analysis of Ground Two, Mr. Blaisdell had no
recollection of a plea offer being made. Moreover, it
would have been his practice to document any plea
offer in his notes, and his notes, introduced at the
hearing, did not reflect any such offer.

Having had an opportunity to observe the
demeanor of the witnesses in conjunction with the
record evidence, the Court finds the testimony of Mr.
Blaisdell to be credible. The Court finds Mr. Blaisdell
correctly instructed Defendant on the maximum
exposure of his sentence as well as the strengths and
weaknesses of his case; therefore, Defendant has failed
to prove deficient performance. Furthermore, the
Court finds no plea was offered to Defendant.
Accordingly, as no plea offer existed, Defendant has
failed to prove prejudice.

To the extent Defendant alleges cumulative
error, where all individual claims are denied as
procedurally barred or without merit, the claim of
cumulative error is also without merit. Griffin v. State,
866 So.2d 1, 22 (Fla. 2003). All claims in the instant
Motions have been denied on the merits; therefore,
Defendant’s claim of cumulative error is likewise
without merit. Accordingly, Defendant is not entitled
to relief on Ground Three.

Resp. Ex. H at 162-63. Petitioner appealed the denial of his Rule 3.850 motion,
but when he failed to file an initial brief as directed, the First DCA dismissed
his appeal. Resp. Ex. K. Because Petitioner did not fully exhaust this claim, the
Court considers the claim on the merits

None of Petitioner’s individual claims warrant relief; thus, there is
nothing to accumulate. See Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132
(11th Cir. 2012). Counsel’s alleged errors, neither individually nor
cumulatively, deprived Petitioner of a fair trial or due process. Accordingly, this

claim is due to be denied.
D. Ground Four
Petitioner argues that the trial court erred in excluding evidence showing
the victim’s bias and trial counsel was ineffective for failing to impeach the

victim with his bias. Doc. 1 at 10. He notes that “[t]he facts to support these
arguments are stated in Petitioner’s initial brief on Direct Appeal and are
incorporated by reference hereto.” Id.
Immediately before the trial began, the state informed the trial court that

it had received an email the night before from Petitioner’s counsel with a two-
page attachment. See Resp. Ex. B at 6. The first page was a reasonable efforts
affidavit and the second page was one page of a court order. See Resp. Ex. A at
44-45.9 The documents were “addressing some type of investigation” that

occurred after the October 5, 2009 shooting, concerning allegations of sexual

9 The documents appear to be part of a child protective services investigation and court
order regarding the custody of Ms. Middleton’s children.
molestation and lewd and lascivious conduct by Williams against Petitioner’s
minor daughter. Resp. Ex. B at 6-7. The state argued that these documents were

inadmissible because they were irrelevant and prejudicial. Id. at 7. Petitioner’s
counsel agreed that the documents did not “appear to be relevant to anything”
at that point in time but insinuated that they may become relevant based on
how the testimony unfolds. Id. at 9. The trial court prohibited any reference to

the subject matter raised in the documents but instructed defense counsel to
approach at side bar if he believed that the door had been opened during the
trial. Id.
Petitioner, through appellate counsel, raised these issues on direct

appeal. See Resp. Ex. D. Petitioner summarized his arguments as follows:
The court committed fundamental error when it
excluded evidence that the main witness against the
Defendant, and the only witness who identified him as
the shooter, was involved in a case of alleged abuse,
including sexual abuse, in which the Defendant’s
child, and another child bearing the Defendant’s
name, were the victims. The court (and the parties)
incorrectly focused on the lack of connection between
the alleged child abuse and the alleged shooting for
which the Defendant was on trial. However, the
evidence properly related to the bias of the witness and
should have been allowed for impeachment purposes.

Furthermore, trial counsel was ineffective in
allowing the witness’s bias to go unchallenged. The
defense conceded that the evidence was not relevant to
the charges, but did not argue that it could be used to
impeach Mr. Williams, and made no effort to impeach
him at the time he testified. The result was that Mr.
Williams was able to paint a picture of a life-long
friendship making him reluctant to testify against the
Defendant. The jury might have heard that testimony
very differently if they knew that Mr. Williams not
only was romantically involved with the mother of Mr.
Cockrum’s child, but also was suspected of committing
child abuse that resulted in Mr. Cockrum’s child being
placed in foster care. His reluctance to come into court
might have been seen in a different light if the jury
knew that the only reason he was not being charged
with child abuse was that a Georgia agency could not
determine where the abuse took place.

Finally, Mr. Cockrum’s denial that he and Mr.
Williams were “like brothers” was portrayed as
evidence of his lack of credibility. The jury might have
seen this in a very different light, as well, if the jury
knew that, by the time Mr. Cockrum testified, he had
learned about the abuse allegations. Because Mr.
Williams was the only person who identified Mr.
Cockrum as the shooter, and because there was no
physical evidence linking Mr. Cockrum to the scene,
the entire case hinged on witness credibility. There
could have been no strategic reason to fail to impeach
Mr. Williams with evidence that he had other, strong
reasons not to want to come into court, and that his
relationship with Mr. Cockrum might not be as close
as he was portraying it to the jury.

Id. at 13-14.
The state filed an answer brief arguing that the trial court error claim
was not preserved or properly argued on appeal but alternatively addressed the
claim on the merits. See Resp. Ex. E at 8-14. Notably, the state argued that the
trial court properly excluded the “unrelated, post-arrest charges” because they
were not relevant. Id. at 14. The state also addressed Petitioner’s ineffective
assistance of counsel claim on the merits. See id. at 15-23.

Petitioner filed a counseled reply brief reiterating that the trial court
committed fundamental error by excluding compelling evidence of the victim’s
bias. See Resp. Ex. F. The First DCA per curiam affirmed Petitioner’s conviction
and sentence without issuing a written opinion. See Resp. Ex. G.

This Court addresses this claim in accordance with the deferential
standard for federal court review of state court adjudications. Upon thorough
review of the record, the Court concludes that the state court’s adjudication of
this claim was not contrary to clearly established federal law, did not involve

an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence
presented. The Court notes that “[a]s a general rule, a federal court in a habeas
corpus case will not review the trial court’s actions concerning the admissibility

of evidence,” because the state court “has wide discretion in determining
whether to admit evidence at trial[.]” Alderman v. Zant, 22 F.3d 1541, 1555
(11th Cir. 1994); see also Baxter v. Thomas, 45 F.3d 1501, 1509 (11th Cir. 1985)
(federal habeas corpus is not the proper vehicle to correct evidentiary rulings);

Boykins v. Wainwright, 737 F.2d 1539, 1543 (11th Cir. 1984) (federal courts are
not empowered to correct erroneous evidentiary rulings in state court unless
rulings deny petitioner fundamental constitutional protections). Thus,
Petitioner’s underlying challenge to the state’s court’s determination on the
admissibility of the subject evidence is not generally proper for this Court’s

consideration. As to Petitioner’s ineffectiveness claim, the Court finds that the
record supports the state court’s determination. Therefore, Petitioner is not
entitled to federal habeas relief on Ground Four.
Accordingly, it is

ORDERED:
1. The Petition (Doc. 1) is DENIED, and this case is DISMISSED
WITH PREJUDICE.
2. If Petitioner appeals, 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.10

10 The Court should issue a certificate of appealability only if the Petitioner makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make this substantial showing, Petitioner “must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration
of the record as a whole, the Court will deny a certificate of appealability.
3. The Clerk shall enter judgment dismissing this case with
prejudice, terminate any pending motions, and close the file.
DONE AND ORDERED at Jacksonville, Florida, this day of
August, 2022.

o> Cmothe I. Corrigan
Ww. TIMOTHY J. CORRIGAN
United States District Judge

JAX-3 8/2
C:
Donmonique Cockrum, #J45081
Counsel of Record

Al

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10110679. Public record. Not legal advice.