Jones v. Secretary, Florida Department of Corrections (Duval County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

KEVIN JONES,

Petitioner,

v. Case No. 3:19-cv-904-TJC-PDB

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

second degree murder. He is serving life imprisonment. Respondents filed a

Response (Doc. 10) with exhibits (Docs. 10-1 to 10-44; “Resp. Ex.”). Petitioner

filed a Reply addressing Grounds One and Two (Doc. 11) with exhibits (Docs.

11-1 to 11-3). 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.

ne2016). “‘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 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 unnecessary. 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. 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).

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

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

A. Ground One

Petitioner argues that his trial counsel was ineffective for failing to obtain

a crime scene reconstruction expert to challenge the medical examiner’s

testimony relating to the victim’s injuries and to show the testimony was

inadmissible because it lacked a scientific basis. Doc. 1 at 5. In his Reply, he

argues that “trial counsel was ineffective for failing to consider and consult with

an expert forensic pathologist to review the state’s pathologist’s report to testify

consistently with the defense’s theory of self defense.” Doc. 11 at 7.2

Petitioner raised this claim in his postconviction proceedings pursuant to

Florida Rule of Criminal Procedure 3.850. The state court denied the claim:

Defendant first asserts counsel was ineffective

for failing to retain an expert and challenge the

testimony of State witness, Dr. Valerie Rao (“Dr. Rao”),

with knife mark and fingernail mark comparisons.

Defendant states counsel should have challenged Dr.

Rao’s ability to characterize and interpret the victim’s

injuries or should have shown the testimony was

inadmissible under the Frye[] or Daubert standard

because it lacked a scientific base.

As a licensed physician since 1981 and a medical

examiner for approximately twenty-five years, Dr. Rao

was qualified to testify in the way presented by the

2 During opening statements and closing arguments, Petitioner’s trial counsel, with

Petitioner’s express consent, conceded that Petitioner was guilty of manslaughter. See

Resp. Ex. J at 231, 241-43, 258-59; Resp. Ex. K at 628-43. The defense’s trial strategy

was to try to persuade the jury not to convict on first degree murder as charged. The

strategy was ultimately successful in that regard.

State under both the Frye or Daubert standard.

Moreover, the only testimony Dr. Rao gave which

would relate to knife mark or fingernail mark

comparisons was the following: there was a 2.2

centimeter-deep stab wound to the left side of the

victim’s chest from a single-edged weapon, that it was

clear the victim was strangled manually due to the

fingerprint markings on her neck, and that the

Defendant’s injuries to his face were not made by a

knife as he alleged, but rather from fingernails.

No knife was found in order to compare with the

wound. Thus, no knife mark comparison could truly be

made to the wound or Defendant’s facial injuries. More

importantly, Dr. Rao’s testimony was largely

consistent with Defendant’s own confessions of the

murder; specifically, that the victim was stabbed with

a small, folding knife in her left chest and that

Defendant held her throat from the passenger seat of

the car. Thus, the only inconsistency between Dr. Rao’s

conclusions and Defendant’s allegations is whether the

injuries to Defendant’s face were from a knife or

fingernails. There is no reasonable probability the

outcome of the proceeding would have been different if

Dr. Rao’s conclusions on that point were challenged.

This is particularly true in light of the testimony of

Defendant’s close family friend, Gregory Williams Jr.,

that on the night in question, Defendant had scratches

on his face and when Williams asked Defendant how he

got them, Defendant responded, “you know how these

girls is.” In light of the above, Defendant is not entitled

to relief on this Ground.

Resp. Ex. R at 200-01 (footnote and internal record citations omitted).

Petitioner appealed, and the First District Court of Appeal per curiam affirmed

the denial without issuing a written opinion. Resp. Ex. U. Petitioner filed a

motion for rehearing en banc, which was denied. Resp. Ex. V. The Mandate

issued on July 8, 2019. Resp. Ex. W.

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, this 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.

B. Ground Two

According to Petitioner, his trial counsel was ineffective for failing to

present evidence of the victim’s violent character. Doc. 1 at 6. Petitioner argues

that his “counsel failed to bring out and highlight the victim[’]s propensity for

violence . . . through legal authority expert witness or by a witness with personal

knowledge” of the victim’s character to “prove the victim was the aggressor.” Id.

(capitalization omitted); see Doc. 11 at 9 (arguing trial counsel was ineffective

“for not presenting evidence of [the victim’s] violent history towards”

Petitioner).

Petitioner raised this claim in his Rule 3.850 proceeding. The state court

denied the claim:

Defendant next alleges counsel was ineffective

for failing to present evidence of the victim’s violent

character through specific instances of violence to show

that the victim was likely the aggressor and Defendant

had reasonable apprehension. Specifically, Defendant

states counsel should have elicited testimony the

victim was previously charged with Aggravated

Battery with a Deadly Weapon in which the victim

stabbed someone with a knife as well as testimony that

Defendant previously got an injunction for protection

against the victim in July 2010. Defendant states this

evidence was crucial to support Defendant’s assertions

that the victim tried to stab him twice, prompting

Defendant to protect himself.

It is clear from the record that counsel intended

to bring out evidence of the victim’s prior violence

through Defendant’s testimony. However, Defendant

made the decision not to testify in this case. Such

evidence would not be admissible through any other

witness as the evidence would only have been

admissible if it could be shown that Defendant was

aware of the victim’s history and if it tended to show

Defendant had reasonable apprehension of the victim.

See Smith v. State, 606 So. 2d 641, 643-43 (Fla. 1st

DCA 1992). Therefore, counsel cannot be found to be

ineffective in this regard.

Resp. Ex. R at 201-02 (internal record citations omitted). Petitioner appealed,

and the First DCA per curiam affirmed the state court’s denial of this claim

without issuing a written opinion.

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. After the state rested and the trial court

denied Petitioner’s motion for judgment of acquittal, the trial court inquired of

Petitioner whether he wanted to testify on his own behalf. See Resp. Ex. K at

588-89. Petitioner advised the trial court that he wished to testify. Id. at 589.

Petitioner’s trial counsel then advised the court that they intended to proffer

certain testimony, and the state intended on objecting based on its pretrial

motion in limine.3 Id. at 590-91. The trial court took a brief recess, and when

the proceeding resumed, Petitioner had changed his mind and decided not to

testify. Id. 591-93. Thus, no proffer was given.

Upon thorough review of the record, this 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.

C. Ground Three

Petitioner argues his trial counsel was ineffective for failing “to object to

the court not instructing the jury o[n] the lesser included offense of

manslaughter by culpable negligence by act.” Doc. 1 at 8 (capitalization

3 The state’s motion in limine sought to exclude testimony or evidence relating to an

incident where the victim stabbed someone and a temporary injunction Petitioner had

previously filed against the victim. See Resp. Ex. F at 952-53.

omitted). Petitioner raised this claim in his Rule 3.850 proceeding, and the state

court denied it:

Defendant asserts counsel acted deficiently by

failing to object to “erroneous” jury instruction of the

lesser included offense of manslaughter by act without

giving the manslaughter by culpable negligence act.

It is fundamental error to give an erroneous

manslaughter by act instruction, stating that the

defendant intended to cause the death of the victim,

while failing to give the manslaughter by culpable

negligence instruction. Haygood v. State, 109 So. 3d

735 (Fla. 2013). After the courts found the standard

instruction erroneously informed the jury that

manslaughter by act required the defendant to intend

to kill the victim, the standard instructions were

corrected to advise the jury that it simply must find

that Defendant “intentionally committed an act or acts

that caused the death of” the victim. Id. at 741; Fla. Std.

Jury Instr. (Crim) 7.7.

In the instant case, Defendant was given the

corrected version of the manslaughter by act

instruction. Thus, counsel was not ineffective for failing

to object to a correct instruction. See Schoenwetter v.

State, 46 So. 3d 535, 546 (Fla. 2010) (finding counsel

cannot be deemed ineffective for failing to make a

meritless objection). Therefore, Defendant is not

entitled to relief on this Ground. See Strickland, 466

U.S. at 697 (“[T]here is no reason for a court deciding

an ineffective assistance claim . . . to address both

components of the inquiry if the defendant makes an

insufficient showing on one.”).

Resp. Ex. R at 202-03 (internal record citations omitted). Petitioner appealed,

and the First DCA per curiam affirmed the state court’s denial of this claim

without issuing a written opinion.

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, this 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.

D. Ground Four

Petitioner claims that his trial counsel was ineffective for failing to

investigate and discover impeachment evidence. Doc. 1 at 9. Specifically, he

argues that Dr. Rao’s testimony “was not competent d[u]e to mixed reviews from

the state medical examiners commission,” and her “history is under extremely

high scrutiny and controversial.” Id. (capitalization omitted).

Petitioner raised this claim in his Rule 3.850 proceeding, and the state

court denied it:

Defendant maintains counsel was ineffective for

failing to investigate and discover impeachment

evidence regarding the medical examiner presented by

the State, Dr. Rao. Defendant states that the Mayor

requested a state investigation on Dr. Rao, Dr. Rao

received “mixed reviews” from the state medical

examiner commission, and that Dr. Rao has a “history

of controversy under heightened city scrutiny.”

Defendant also, however, contends that this

information was newly discovered evidence that could

not have been discovered with due diligence by himself

or counsel prior to trial. Defendant further claims that

Dr. Rao was not competent to testify as an expert in

this case. Defendant maintains that Dr. Rao’s

testimony is the only testimony that tended to show

premeditation and, thus, this evidence would have

likely produced a different result at trial.

Under rule 3.850(b)(1), a claim of newly

discovered evidence requires that the facts on, which

the claim is predicated were unknown to the movant or

the movant’s attorney and could not have been

ascertained by the exercise of due diligence. Fla. R.

Crim. P. 3.850(b)(1). To obtain a new trial based on

newly discovered evidence, a defendant must

demonstrate that:

(1) the evidence was not known by the trial

court, the party, or counsel at the time of trial,

and it must appear that the defendant or

defense counsel could not have known of it by

the use of diligence; and (2) the newly

discovered evidence is of such nature that it

would probably produce an acquittal on

retrial.

Hitchcock v. State, 991 So. 2d 337, 349 (Fla. 2008); see

also Huffman v. State, 909 So. 2d 922 (Fla. 2d DCA

2005) (concluding that newly discovered evidence must

also be admissible and it “must be of such a nature that

it would probably produce an acquittal on retrial.”).

First, this Court notes Defendant’s allegations

that this evidence could not be discovered with due

diligence at the time of trial and that counsel was

ineffective for failing to discover this evidence are

contradictory and such allegations are not permitted.

See Scott v. State, 46 So. 3d 529, 533 (Fla. 2009)

(holding that a defendant “cannot simultaneously

allege two competing theories”).

Secondly, even upon review of the merits of each

theory, this Court finds Defendant is not entitled to

relief. Such impeachment evidence cannot be said to be

of such a nature that would probably produce an

acquittal on retrial, nor is there a reasonable

probability the result of the proceeding would have

been different had counsel discovered and presented

this information. This Court finds such conclusion

particularly compelling where, as here, the medical

examiner’s testimony is largely consistent with

Defendant’s own version of events, which are in turn

corroborated by the physical evidence. Moreover, while

Defendant states Dr. Rao’s testimony was the only

evidence of premeditation, this Court notes that the

jury did not find premeditation sufficient to find

Defendant guilty of First Degree Murder and instead

found Defendant guilty of Second Degree Murder,

which required no premeditation. Accordingly,

Defendant is not entitled to relief on this Ground.

Resp. Ex. R at 203-05 (internal record citations omitted). Petitioner appealed,

and the First DCA per curiam affirmed the state court’s denial of this claim

without issuing a written opinion.

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, this 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.

E. Ground Five

Petitioner contends that trial counsel was ineffective for failing to call a

“crucial witness and excluding Petitioner’s proffer.” Doc. 1 at 11. He asserts that

he requested his counsel call Dennetta Wallace to corroborate Petitioner’s story.

Id.

Petitioner raised a similar claim in his Rule 3.850 proceeding. The state

court denied the claim:

Defendant contends counsel acted deficiently by

failing to call Dennetta Wallace (“Wallace”) and Kevin

Jones and by failing to object to the trial court

excluding Defendant’s proffer of the victim’s history of

violence. Defendant states that but for counsel’s alleged

errors, there is a reasonable probability the result of

the proceeding would have been different.

The trial court did not deny Defendant the

opportunity to proffer the victim’s history of violence.

Rather, counsel stated there would be a proffer when

Defendant was choosing to testify as Defendant was to

be the witness offering such evidence. However, before

the time came for Defendant to testify, he changed the

[sic] mind and decided against testifying. Counsel,

thus, did not fail to call Defendant as a witness, but

Defendant made the exclusive decision not to testify

after being fully advised. Moreover, as Defendant was

going to be the witness to testify as to the victim’s

history of violence, no proffer was necessary once

Defendant chose not to testify. Moreover, as stated in

Ground Two, Defendant was the only witness that

could have testified regarding the victim’s specific acts

of violence and his knowledge thereof. Counsel was,

therefore, not deficient in either regard.

Defendant further asserts counsel should have

called Wallace to testify that Defendant called her after

the accident and to recall the details of that

conversation to corroborate Defendant’s testimony.

Defendant contends Wallace would testify that

Defendant stated the victim was still alive when the car

crashed into the pole. Defendant further asserts

Wallace would have testified that she offered to call the

police but told Defendant to calm down and leave.

Defendant suggests this testimony would have shown

Defendant did not leave to avoid police. Such testimony

from Wallace would have been inadmissible, self-

serving hearsay. Moreover, such testimony would have

conflicted with Defendant’s statements to the police

during his interview. Specifically, Defendant told the

police that he could not call for help as he did not have

a phone since the victim threw his cell phone out the

car window and her phone was locked. Thus, testimony

from Wallace that Defendant was able to make a phone

call immediately after the crash would have conflicted

with his prior statements, rather than corroborate his

story. Thus, this Court finds counsel did not act

deficiently in failing to call Wallace. Additionally, this

Court finds there is no reasonable probability the result

of the proceeding would have been different even had

Wallace’s purported testimony been presented.

Defendant is, therefore, not entitled to relief on this

Ground.

Resp. Ex. R at 205-06 (internal record citations omitted). Petitioner appealed,

and the First DCA per curiam affirmed the state court’s denial of this claim

without issuing a written opinion.

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, this 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.

F. Ground Six

Petitioner alleges the trial court “abused its discretion in denying [his]

claim of illegal sentence, life sentence exceed[s] the statutory maximum for first

degree felony.” Doc. 1 at 12. Respondents argue that this issue is not cognizable

on federal habeas review because it presents an issue of state law. See Doc. 10

at 40-42. This Court agrees.

“In the area of state sentencing guidelines in particular, [the Eleventh

Circuit] consistently ha[s] held that federal courts cannot review a state’s

alleged failure to adhere to its own sentencing procedures. This limitation on

federal habeas review is of equal force when a petition, which actually involves

state law issues, is couched in terms of equal protection and due process.”

Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (quotations and citations

omitted). Because this claim is purely an issue of state law, it is not cognizable

on federal habeas review. As such, it is due to be denied.

Even assuming this claim is cognizable in a federal habeas petition, this

Court would defer to the state court’s ruling. Indeed, Petitioner raised this claim

in his Rule 3.850 proceeding, and the state court denied it:

Defendant suggests the trial court erred in

imposing an enhancement on his first degree felony

punishable by life without a jury finding to allow

enhancement.

To the extent Defendant raises this ground as

trial court error, it is not cognizable. Grimsley v. Jones,

215 So. 3d 353, 354 (Fla. 2016) (“[A]llegations of trial

court error are not cognizable by motion under rule

3.850.”) (citations omitted). However, claims of illegal

sentences may be brought at any time through a Rule

3.850 motion. Fla. R. Crim. P. 3.850(a). Examining this

ground as a claim of illegal sentence, this Court finds

the Ground to be without merit. Second Degree Murder

is a first degree felony punishable by life. §§ 782.04(2),

775.082, Fla. Stat. (2010). Unlike Defendant’s

assertions, no enhancement is necessary to permit a

life sentence for such an offense. Accordingly, this

Court finds Defendant[’s] sentence to be legal and finds

Defendant is not entitled to relief on this Ground.

Resp. Ex. R at 206-07. Petitioner appealed, and the First DCA per curiam

affirmed the state court’s denial of this claim without issuing a written opinion.

Upon thorough review of the record, this 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.

G. Ground “Eight”4

Petitioner claims that his trial counsel was ineffective by allowing or not

objecting to the redacted videotaped interview that was played for the jury. Doc.

1 at 14. He asserts that he told his counsel to object to the redacted version

being played because it “definitely helped the state[’]s case.” Id. (capitalization

omitted).

Petitioner raised this claim in his Rule 3.850 proceeding. The state court

denied the claim:

Defendant alleges counsel was ineffective for

failing to object to the admission of Defendant’s

videotaped custodial interview during with [sic] the

police office[r] repeatedly expressed his personal

opinion about Defendant’s guilt.

The State entered portions of Defendant’s

videotaped interview during its case in chief. While the

defense discussed entering the entirety of the interview

under the rule of completeness, the State noted that the

remaining portions may violate the dictates of Jackson

4 Petitioner did not include a Ground “Seven” in his Petition. The Court provided him

with an opportunity to amend his Petition to include a ground seven if he intended to

do so. The Court advised Petitioner that if he did not file an amended petition, the

Court would presume the error was merely typographical and that he intended to raise

a total of eight claims. See Order (Doc. 2). Petitioner did not file an amended petition.

Thus, the Court refers to each Ground as numbered by the parties (which excludes a

ground seven).

v. State, 107 So. 3d 328 (Fla. 2012).[5] The defense,

however, never introduced the entire interrogation

and, thus, the only portions played for the jury were

those presented in the State’s case in chief. These

portions of the interview played for the jury were

devoid of any personal expressions of guilt by the

detectives. Therefore, defense counsel cannot be

deemed ineffective for failing to make such a meritless

objection. See Schoenwetter, 46 So. 3d at 546.

Defendant is, thus, not entitled to relief on this Ground.

Resp. Ex. R at 208 (internal record citations omitted). Petitioner appealed, and

the First DCA per curiam affirmed the state court’s denial of this claim without

issuing a written opinion.

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, this 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.

5 Jackson, 107 So.3d at 339-40 (recognizing that “[g]enerally, a witness’ opinion as to

the credibility, guilt, or innocence of the accused is inadmissible,” and “it is especially

troublesome when a jury is repeatedly exposed to an interrogating officer’s opinion

regarding the guilt or innocence of the accused”).

H. Ground Nine

Petitioner claims that “the trial court abused its discretion in denying

[his] motion for appointment of a forensic pathologist.” Doc. 1 at 15. Petitioner

raised this claim pretrial, and the trial court conducted a hearing on the motion

before denying it. See Resp. Ex. E at 707-10; Resp. Ex. H at 1321-46.6 In doing

so, the trial court reviewed in detail the parties’ arguments, the medical

examiner’s report, and Petitioner’s interview with the police after the murder.

See Resp. Ex. H at 1342-45.

With help from appellate counsel, Petitioner raised this claim on direct

appeal. See Resp. Ex. M. He argued that the appointment of a forensic

pathologist was necessary to challenge the cause of death and educate counsel

on forensic pathology, which would have allowed Petitioner to adequately

challenge the competency of the medical examiner’s testimony and effectively

cross-examine her. See id. He argued that with help from a forensic pathologist,

he would have been able to “flesh out a theory of self-defense in addition to his

theory of manslaughter.” Id. at 13.

The state filed an answer brief arguing that Petitioner failed to

demonstrate a particularized need for such an expert, he provided no evidence

that the autopsy results were erroneous or subject to interpretation, and he

6 At that time, Petitioner had chosen to proceed pro se. His stand-by counsel was

present at the hearing.

named no such expert who would testify that the sole cause of death was

stabbing. See Resp. Ex. N. The state further argued that Petitioner

acknowledged during his police interview that he both stabbed and strangled

the victim, but his theory was that he did so accidentally or out of self-defense.

See id. Thus, according to the state, Petitioner was responsible for the victim’s

death whether she died from the stab wound or the strangulation, and an

expert’s testimony that the victim died solely from the stab wound would not

assist in proving Petitioner’s defense theory. See id. The First DCA per curiam

affirmed Petitioner’s conviction and sentence without issuing a written opinion.

Resp. Ex. O.7

Assuming Petitioner has presented an exhausted federal claim, this

Court addresses this claim in accordance with the deferential standard for

federal court review of state court adjudications and finds that the record

supports the state court’s conclusion. Upon thorough review of the record, this

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.

7 According to the state court’s docket, Petitioner also raised this issue on August 8

and 12, 2014, which was after his direct appeal concluded. The state court denied the

claim on August 28, 2014.

Petitioner’s trial was not rendered fundamentally unfair by the denial of his

request for an expert to challenge the cause of death. Petitioner is not entitled

to federal habeas relief on this claim.

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.8

8 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 16% day of

August, 2022.

o> Cmothe I. Corrigan

Ww. TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 8/12

C:

Kevin Jones, #342734

Counsel of Record

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