Opinion

Smith v. Secretary, Department of Corrections (Duval County)

Court: District Court, M.D. Florida
Filed: Nov 14, 2022
Cited by: 0 cases
Authority: More cited than 19.9%

“A judgment of acquittal should only be granted when the jury cannot reasonably view the evidence in any manner favorable to the opposing party.”

How later courts described this case

“A judgment of acquittal should only be granted when the jury cannot reasonably view the evidence in any manner favorable to the opposing party.”
in case involving two victims, vacating both convictions for aggravated assault with a firearm on double jeopardy grounds because those offenses were subsumed within the defendant’s conviction of burglary with an assault or battery with a firearm
in case involving three victims, vacating only one of the aggravated assault convictions as being subsumed within the defendant’s conviction of burglary with an assault while armed
approving trial court’s reasoning that “even if appellant had consent for the initial entry, such consent was withdrawn once he committed the act of battery.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

MICHAEL LEE SMITH,

Petitioner,

v. Case No. 3:20-cv-170-MMH-MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Michael Lee Smith, an inmate of the Florida penal system,

initiated this action on February 20, 2020,1 by filing a Petition for Writ of

Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).2 In the Petition,

Smith challenges a 2013 state court (Duval County, Florida) judgment of

conviction for armed burglary with assault and attempted armed robbery. He

raises seven claims. See Petition at 5-21. Respondents have submitted a

memorandum in opposition to the Petition. See Response (Doc. 6). They also

submitted exhibits. See Docs. 6-1; 6-2. Smith filed a brief in reply. See Reply

(Doc. 7). Smith’s Petition is ripe for review.

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

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

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

II. Relevant Procedural History

On July 12, 2013, in Duval County case number 2012-CF-003863, the

State of Florida charged Smith with armed burglary with assault or battery

(count one), three counts of attempted armed robbery (counts two, three, and

four), and possession of a firearm by a convicted felon (count five). Doc. 6-1 at

71-72. On July 19, 2013, at the conclusion of a trial, the jury found Smith guilty

on count one with specific findings that he was armed with explosives or a

dangerous weapon, he did not actually possess a firearm, and he committed an

assault during the burglary; guilty on count two with a finding that he carried

a deadly weapon (victim Robert Dodd); and guilty of aggravated assault

(victims Rebecca Dodd and Courtney Barnes), the lesser-included offense of

attempted armed robbery (counts three and four). Id. at 120-23, 973-74. Based

upon the jury’s finding that Smith did not possess a firearm, the court

dismissed count five. Id. at 976-77. On August 20, 2013, the court sentenced

Smith to a term of imprisonment of twenty years for count one, fifteen years

for count two, five years for count three, and five years for count four, to run

concurrently. Id. at 128-35, 290-91, 295.

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

arguing that the trial court violated his due process rights at sentencing when

it considered his prior bad acts that did not result in felony convictions (ground

one), and further that his convictions for both burglary with assault while

armed and aggravated assault constitute double jeopardy (ground two). Id. at

985-1006. The State filed an answer brief, id. at 1008, and Smith filed a reply

brief, id. at 1056. On January 20, 2015, the First District Court of Appeal (First

DCA), in a written opinion, affirmed Smith’s convictions and sentences as to

counts one and two, and reversed and remanded as to counts three and four,

stating in pertinent part:

Appellant broke into a trailer brandishing a BB

gun and demanded money from the three individuals

inside: Robert Dodd, Rebecca Dodd, and Courtney

Barnes. The victims did not have any money and

Appellant left without further incident. Appellant was

charged with “armed burglary with assault or battery”

(count I), three counts of attempted armed robbery

(counts II-IV), and possession of a firearm by a

convicted felon (count V). The jury found Appellant

guilty on count I, with specific findings that Appellant

was armed with explosives or a dangerous weapon

(but not a firearm) and that he committed an assault

during the burglary; guilty on count II (Mr. Dodd); and

guilty of the lesser included offense of aggravated

assault on counts III and IV (Ms. Dodd and Ms.

Barnes). Appellant was sentenced to concurrent prison

terms of 20 years on count I, 15 years on count II, and

5 years on counts III and IV.

Appellant argues in this direct appeal that his

aggravated assault convictions (counts III and IV)

violate the prohibition against double jeopardy

because those offenses are subsumed within his

conviction for armed burglary with an assault (count

I). We agree. See Green v. State, 120 So.3d 1276, 1278

(Fla. 1st DCA 2013) (“[B]ecause all of the elements of

the crime of aggravated assault with a firearm are

contained within the crime of burglary with an assault

while armed with a firearm, convictions for both the

burglary and the aggravated assault violate the

prohibition against double jeopardy.”); White v. State,

753 So.2d 668, 669 (Fla. 1st DCA 2000) (same).

Accordingly, we reverse and remand for the trial court

to vacate Appellant’s convictions for counts III and IV.

See Farrier v. State, 145 So.3d 199, 200 (Fla. 5th DCA

2014) (in case involving two victims, vacating both

convictions for aggravated assault with a firearm on

double jeopardy grounds because those offenses were

subsumed within the defendant’s conviction of

burglary with an assault or battery with a firearm);

but see Estremera v. State, 107 So.3d 511, 512 (Fla.

5th DCA 2013) (in case involving three victims,

vacating only one of the aggravated assault

convictions as being subsumed within the defendant’s

conviction of burglary with an assault while armed).

We affirm Appellant’s convictions and sentences in all

other respects.

Smith v. State, 154 So. 3d 523, 523-24 (Fla. 1st DCA 2015), disapproved,

Tambriz-Ramirez v. State, 248 So. 3d 1087 (Fla. 2018); Doc. 6-1 at 1067-69

(footnotes omitted). The First DCA issued the mandate on February 5, 2015.

Doc. 6-1 at 1070.3

On July 24, 2015, Smith filed a pro se motion for postconviction relief

pursuant to Florida Rule of Criminal Procedure 3.850. Id. at 1086-1103. In his

Rule 3.850 motion, Smith asserted that his trial counsel was ineffective

because he failed to: move for a judgment of acquittal when the prosecution

3 The circuit court vacated Smith’s convictions and sentences as to counts three

and four and directed the clerk to enter an amended judgment and sentence. Doc. 6-

1 at 1072-73. The Amended Judgment and Sentence was entered on December 8,

2015, nunc pro tunc to August 20, 2013. Id. at 1075-81.

failed to meet its burden of disproving the affirmative defense of consent to

enter the dwelling (ground one), id. at 1088; move for a judgment of acquittal

when the prosecution failed to establish the elements required for a burglary

conviction without the homeowner’s testimony (ground two), id. at 1090; object

when the prosecution failed to prove a licensed or invited entry (ground three),

id. at 1092; move for a judgment of acquittal based on insufficient evidence to

support the conviction for attempted armed robbery with a deadly weapon

(ground four), id. at 1094; call available witnesses whose testimony was

relevant to the defense (ground five), id. at 1096; and move for a mistrial at the

close of the trial when the prosecution misled the jury and “transcended the

bounds of relevancy” (ground six), id. at 1098. He also asserted that the

cumulative effect of counsel’s errors violated his Sixth and Fourteenth

Amendment rights. Id. at 1101.

In February 2018, the postconviction court directed the State to respond

to Smith’s claims, as renumbered by the court.4 Id. at 1118. The State

4 The court renumbered the claims as follows because “some of the grounds

address multiple issues.” Doc. 6-1 at 1118 n.2. Counsel was ineffective because he

failed to: argue in his motion for judgment of acquittal that the State failed to prove

lack of invitation (ground one); call available witnesses and present evidence,

specifically phone records, to support the defense of consent (ground two); argue in

his motion for judgment of acquittal that the State did not establish the three

elements required for a burglary conviction (ground three); object to a jury instruction

containing the “remaining in” language (ground four); argue in his motion for

judgment of acquittal that the State failed to prove intent (ground five); move for

judgment of acquittal as to count two (attempted armed robbery) because no evidence

was introduced that the BB gun was a deadly weapon (ground six); call available

responded, id. at 1120, and Smith filed a reply, Doc. 6-2 at 319. On August 22,

2018, the postconviction court denied Smith’s request for postconviction relief.

Docs. 6-1 at 1232; 6-2 at 1-16. On appeal, Smith filed a pro se brief, Doc. 6-2 at

329, and the State filed a notice that it did not intend to file an answer brief,

id. at 356. The First DCA affirmed the court’s denial of postconviction relief

per curiam on June 13, 2019, id. at 360; denied Smith’s motion for rehearing

on August 2, 2019, id. at 364; and issued the mandate on August 23, 2019, id.

at 362.

During the pendency of the Rule 3.850 proceedings, Smith filed a pro se

petition for writ of habeas corpus on April 14, 2016. Id. at 377. In the petition,

Smith asserted that appellate counsel was ineffective because she failed to

argue on direct appeal that trial counsel was ineffective because he did not

move for a judgment of acquittal when the prosecution failed to: disprove

consent to enter the dwelling with respect to the burglary charge (ground one),

id. at 381; prove the elements required for a burglary conviction (ground two),

id. at 383; and prove “a licensed or invited entry as required by the burglary

statute” when the information and jury instructions used “remaining in”

verbiage (ground three), id. at 385. He also asserted that appellate counsel

witnesses (Christopher Rue, Stacy Tyus, Lonnie King, and Ronald Cope) (ground

seven); and object and move for mistrial due to the admission of the 911 call

recordings (ground eight). As ground nine, Smith asserted that the cumulative effect

of counsel’s errors warranted relief.

failed to raise on direct appeal that trial counsel was ineffective because he

failed to move for a judgment of acquittal based on insufficient evidence to

support a conviction for attempted armed robbery with a deadly weapon

(ground four). Id. at 387. On May 11, 2016, the First DCA denied the petition

“on the merits,” id. at 522, and on June 17, 2016, denied Smith’s motion for

rehearing, id. at 524.

Also, during the pendency of the Rule 3.850 proceedings, Smith filed a

pro se motion to correct illegal sentence pursuant to Florida Rule of Criminal

Procedure 3.800(a) on October 23, 2017. Id. at 532. The court denied the Rule

3.800 motion on December 6, 2017. Id. at 538. On appeal, the First DCA

affirmed the court’s denial of the motion per curiam on May 2, 2018, id. at 543,

and issued the mandate on May 30, 2018, id. at 545.

On December 6, 2019, Smith filed a pro se motion for reduction or

modification of sentence pursuant to Rule 3.800(c). Id. at 548. The court denied

the Rule 3.800 motion as untimely on January 8, 2020. Id. at 566.

III. One-Year Limitations Period

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

28 U.S.C. § 2244(d).

IV. Evidentiary Hearing

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

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

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

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

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

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

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

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

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

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

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

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

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

2003), an evidentiary hearing will not be conducted.

V. Governing Legal Principles

A. Standard of Review

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

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

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

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

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

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

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

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

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

marks omitted)).

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

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

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

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

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

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

unaccompanied by an explanation, the United States Supreme Court has

instructed:

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

unexplained decision to the last related state-court

decision that does provide a relevant rationale. It

should then presume that the unexplained decision

adopted the same reasoning.

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

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

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

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

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

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

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

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

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

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

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

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

§ 2254 as follows:

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

claims of state courts’ erroneous legal conclusions. As

explained by the Supreme Court in Williams v. Taylor,

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

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

“contrary to” clause and an “unreasonable application”

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

“if the state court arrives at a conclusion opposite to

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

law or if the state court decides a case differently than

[the Supreme] Court has on a set of materially

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

(plurality opinion). The “unreasonable application”

clause allows for relief only “if the state court identifies

the correct governing legal principle from [the

Supreme] Court’s decisions but unreasonably applies

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

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

claims of state courts’ erroneous factual

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

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

the petitioner’s claim “was based on an unreasonable

determination of the facts in light of the evidence

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

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

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

which imposes a burden on the petitioner to rebut the

state court’s factual findings “by clear and convincing

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

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

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

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

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

determination is not unreasonable merely because the

federal habeas court would have reached a different

conclusion in the first instance.’” Titlow, 571 U.S. at --

-, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Ineffective Assistance of Trial Counsel

“The Sixth Amendment guarantees criminal defendants the effective

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

performance falls below an objective standard of reasonableness and thereby

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

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

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

To establish deficient performance, a person

challenging a conviction must show that “counsel’s

representation fell below an objective standard of

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

Ct. 2052. A court considering a claim of ineffective

assistance must apply a “strong presumption” that

counsel’s representation was within the “wide range”

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

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

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant

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

With respect to prejudice, a challenger must

demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

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

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

conceivable effect on the outcome of the proceeding.”

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

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

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

2052.

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

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

before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010). Since

both prongs of the two-part Strickland test must be satisfied to show a Sixth

Amendment violation, “a court need not address the performance prong if the

petitioner cannot meet the prejudice prong, and vice-versa.” Id. (citing

Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in

Strickland: “If it is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice, which we expect will often be so, that course

should be followed.” Strickland, 466 U.S. at 697.

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

deference.

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

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

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

application of Strickland was unreasonable under §

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

by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review

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

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

believes the state court’s determination under the

Strickland standard was incorrect but whether that

determination was unreasonable — a substantially

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

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

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

argument that counsel satisfied Strickland’s

deferential standard,” then a federal court may not

disturb a state-court decision denying the claim.

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

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

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

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

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

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

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

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

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

VI. Findings of Fact and Conclusions of Law

A. Grounds One and Two

As ground one, Smith asserts that counsel was ineffective because he

failed to move for a judgment of acquittal when the prosecution did not meet

its burden of disproving Smith’s affirmative defense of consent. Petition at 5-

6. He maintains that he “did not commit a burglary” because Robert Dodd gave

him permission to enter the home. Id. at 5. According to Smith, “the evidence

fails to rebut Smith’s claim that he had spoken to Dodd prior to entering and

that Dodd had given him permission.” Id. at 6. As ground two, he states that

counsel was ineffective because he failed to move for a judgment of acquittal

when the prosecution did not establish the three elements required for a

burglary conviction. Id. at 7-8.

Respondents argue that Smith did not properly exhaust a portion of

ground two in the state courts, and therefore the claim is procedurally barred.

Response at 32. Notably, although Smith filed a pro se brief on appeal, he was

not required to file an appellate brief because the postconviction court

summarily denied his Rule 3.850 motion without an evidentiary hearing. See

Florida Rule of Appellate Procedure 9.141(b)(2)(C)(i); see Atwater v. Crosby,

451 F.3d 799, 809-10 (11th Cir. 2006) (“Pursuant to state procedural rules,

abandonment of an issue results from submission of a brief without argument

thereon in an appeal of an order denying relief after an evidentiary hearing.”);

see also Cortes v. Gladish, 216 F. App’x. 897, 899-900 (11th Cir. 2007)

(recognizing that if the petitioner “received an evidentiary hearing, his failure

to address issues in his appellate brief would constitute a waiver”).5 As such,

5 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.”).

the Court finds that Smith sufficiently exhausted the ineffectiveness claims in

the state courts.

Smith raised the ineffectiveness claims in his Rule 3.850 motion. Doc. 6-

1 at 1088-91. The postconviction court denied the Rule 3.850 motion with

respect to the claims, stating in pertinent part:

Grounds One, Three, and Five are premised on

counsel’s alleged failure to sufficiently argue for

judgment of acquittal. In Ground One, Defendant

alleges counsel was ineffective for failing to argue that

the State failed to prove lack of invitation. In Grounds

Three and Five, Defendant alleges counsel was

ineffective for failing to argue that the State did not

establish the elements of burglary, i.e. ownership of

the structure, intent to commit an offense, and

unlawful entry or remaining in. Defendant avers that

had counsel so argued, he would have been acquitted

of Count One, Armed Burglary with Assault.

“The purpose of a motion for judgment of

acquittal is to challenge the legal sufficiency of the

evidence.” State v. Prehn, 566 So. 2d 1362, 1363 (Fla.

1st DCA 1990) (quoting Anderson v. State, 504 So. 2d

1270, 1271 (Fla. 1st DCA 1986)). In moving for a

judgment of acquittal, the defendant “admit[s] the

facts adduced in evidence and every conclusion

favorable to the [State] which is fairly and reasonably

inferable therefrom.” Spinkellink v. State, 313 So. 2d

666, 670 (Fla. 1975). When a motion for judgment of

acquittal is made, the trial court “must view the

evidence and all reasonable inferences in the light

most favorable to the state, the non-moving party.”

Werhan v. State, 673 So. 2d 550, 552 (Fla. 1st DCA

1996) (citing Behn v. State, 621 So. 2d 534, 535 (Fla.

1st DCA 1993)).

To establish the crime of Armed Burglary with

Assault, the State had to prove at trial that Defendant

unlawfully entered or remained in a structure, owned

by or in the possession of the victim, Robert “Bobby”

Dodd, with the intent to commit an offense therein,

and while in the course of the burglary, was armed

with a weapon or firearm and assaulted the victims,

Bobby Dodd, Courtney Barnes, and/or Rebecca Dodd.

Fla. Stat. § 810.02(1)(b), (2)(a)-(b) (2012). (Ex. F.)[6] In

these grounds, Defendant alleges counsel was

ineffective in arguing for judgment of acquittal with

regard to the elements of ownership, intent, and entry.

a. Ownership.

“Ownership” for purposes of proving a burglary

“means ‘any possession which is rightful as against the

burglar and is satisfied by proof of special or

temporary ownership, possession, or control.’” D.S.S.

v. State, 850 So. 2d 459, 461 (Fla. 2003) (quoting In re

M.E., 370 So. 2d 795, 797 (Fla. 1979)).

Here, the State presented sufficient evidence to

establish the ownership element. Throughout trial,

the structure where the subject incident occurred, a

trailer at 126 Pickettville Road, was referred to as Mr.

Dodd’s house. Three witnesses, including Defendant,

provided testimony that Mr. Dodd lived at the said

address on August 6, 2012, the date of the incident.

(Ex. G at 258-60, 296-97, 309, 316, 394.)[7] Rebecca

Dodd testified that she had lived there with Mr. Dodd,

her brother, at some point, but not at the time of the

incident. (Ex. G at 259.) Courtney Barnes testified she

and her daughter were living in the trailer with Mr.

Dodd when the incident occurred. (Ex. G at 316.)

Viewing this testimony in a light most favorable to the

State, the evidence at trial established Mr. Dodd was

6 Doc. 6-2 at 42, Fifth Amended Information.

7 Doc. 6-2 at 44, Transcript of the Trial Proceedings.

in possession of the trailer at 126 Pickettville Road for

some period of time prior to, and on, August 6, 2012.

b. Intent.

“The law is clear that a trial court should rarely,

if ever, grant a motion for judgment of acquittal on the

issue of intent.” Washington v. State, 737 So. 2d 1208,

1215 (Fla. 1st DCA 1999) (citation omitted). Whether

one had intent is generally a question given to a jury,

as reasonable persons may differ in determining

intent when taking the surrounding circumstances

into consideration. Id. at 1216; see Booker v. State, 397

So. 2d 910, 915 (Fla. 1981).

At trial, Ms. Barnes testified Defendant entered

the trailer late in the evening without knocking and

carried a gun. (Ex. G at 318-20.) She stated Defendant

pointed the gun at Mr. Dodd, demanded drugs and

money, and requested everyone to empty their

pockets. (Ex. G at 323-26.) Defendant provided

contradicting testimony regarding why he brought a

weapon with him to Mr. Dodd’s house. On direct

examination, Defendant testified he went to Mr.

Dodd’s house to collect money he was owed and

brought a BB gun for protection and fear. (Ex. G at

394-95, 397.) Later, on cross-examination, Defendant

admitted he initially told an investigating detective

that he went to Mr. Dodd’s house to fight, to “beat him

down” over the pills and money. (Ex. G. at 402.) Thus,

there was sufficient evidence to present the issue of

Defendant’s intent to commit an offense to the jury.

c. Entry or remaining in and invitation.

Pertinent to the facts of this case, a “burglary” is

committed when an individual enters a dwelling with

the intent to commit an offense therein, unless the

individual is licensed or invited to enter or remain. §

810.02(1)(b). “Notwithstanding a licensed or invited

entry, remaining in a dwelling . . . [a]fter permission

to remain therein has been withdrawn . . .” also

constitutes a burglary. § 810.02(1)(b)2.b. Pursuant to

section 810.015(3), Florida Statutes (2012), consent is

an affirmative defense to the crime of burglary. A

defendant has the initial burden of establishing the

existence of such a defense, but thereafter the burden

shifts to the state to disprove the defense beyond a

reasonable doubt. Dubois v. State, 43 Fla. L. Weekly

D943b (Fla. 1st DCA Apr. 25, 2018) (citation omitted).

“[L]ack of consent may be proven by circumstantial

evidence.” § 810.015(3); see Sparre v. State, 164 So. 3d

1183, 1200-01 (Fla. 2015) (reasoning defendant’s

invitation into victim’s residence was effectively

rescinded when defendant began stabbing victim);

Sharpe v. State, 941 So. 2d 1190, 1191 (Fla. 4th DCA

2006) (approving trial court’s reasoning that “even if

appellant had consent for the initial entry, such

consent was withdrawn once he committed the act of

battery.”).

Through Defendant’s admission, it is clear he

entered Mr. Dodd’s trailer on the evening of August 6,

2012. (Ex. G at 397.) However, Defendant presented

no evidence beside his own testimony that Mr. Dodd

had invited him to enter. (Ex. G at 394.) Assuming this

testimony is sufficient to meet Defendant’s burden to

establish a consent defense, the State produced

sufficient evidence to disprove this defense beyond a

reasonable doubt, i.e. any consent was implicitly

withdrawn after Defendant displayed his weapon and

overtly withdrawn when Rebecca Dodd told him to “get

[] out.” (Ex. G at 280.) The State also elicited testimony

from Defendant that he did not think he continued to

be a welcome guest in Mr. Dodd’s house after he

pointed his gun at Mr. Dodd. (Ex. G at 416.) Thus,

taken in the light most favorable to the State,

sufficient evidence was presented that Defendant

remained in the trailer unlawfully as any consent to

remain had been withdrawn.

d. Conclusion.

Defense counsel’s failure to move for judgment

of acquittal does not constitute ineffective assistance

of counsel where the evidence presented by the State

was sufficient, if believed by the jury, to establish the

elements of the charged crime. See Rogers v. State,

567 So. 2d 483, 484 (Fla. 1st DCA 1990). Counsel

cannot be deemed ineffective for failing to make a

meritless argument. Teffeteller v. Dugger, 734 So. 2d

1009, 1023 (Fla. 1999). Because there is no reasonable

probability that a judgment of acquittal would have

been granted if counsel had argued differently,

Defendant is not entitled to relief on Grounds One,

Three, or Five.

Doc. 6-2 at 2-6 (emphasis deleted; footnotes omitted). On Smith’s appeal, the

First DCA affirmed the postconviction court’s denial of relief, id. at 360, and

later denied Smith’s motion for rehearing, id. at 364.

To the extent that the appellate court decided Smith’s claims on the

merits,8 the Court will address the claims in accordance with the deferential

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

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

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

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

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

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

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

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

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

to relief on the basis of the ineffectiveness claims.

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

not entitled to deference, Smith’s ineffectiveness claims are still meritless.

There is a strong presumption in favor of an attorney’s competence when

evaluating the performance prong of the Strickland ineffectiveness inquiry.

See Anderson v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 881, 904 (11th Cir. 2014).

The inquiry is “whether, in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance.”

Strickland, 466 U.S. at 690. “[H]indsight is discounted by pegging adequacy to

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

deference to counsel’s judgments.’” Rompilla v. Beard, 545 U.S. 374, 381 (2005).

Thus, Smith must establish that no competent attorney would have taken the

action that his counsel chose.

Notably, the test for ineffectiveness is neither whether counsel could

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

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

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

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

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

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

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

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

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

done.”) (citation omitted).

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

counsel’s representation fell outside that range of reasonable professional

assistance. Notably, defense counsel moved for a judgment of acquittal at the

close of the State’s case, Doc. 6-1 at 677-688, and then later renewed the

motion, id. at 756-61. Counsel cannot be faulted for failure to make a meritless

argument. See Pinkney v. Sec’y, DOC, 876 F.3d 1290, 1297 (11th Cir. 2017)

(“[A]n attorney will not be held to have performed deficiently for failing to

perform a futile act, one that would not have gotten his client any relief.”).

Even assuming arguendo deficient performance by defense counsel, Smith has

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

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

counsel had acted as Smith asserts he should have. See Criner v. State, 943

So. 2d 224, 225 (Fla. 1st DCA 2006) (“A judgment of acquittal should only be

granted when the jury cannot reasonably view the evidence in any manner

favorable to the opposing party.”). His ineffectiveness claim is without merit

since he has shown neither deficient performance nor resulting prejudice.

Accordingly, Smith is not entitled to federal habeas relief on the ineffectiveness

claims raised in grounds one and two.

B. Ground Three

As ground three, Smith asserts that counsel was ineffective because he

failed to object and/or inform the court that the “remaining in” language in the

information and jury instructions was improper. Petition at 10. Respondents

argue that Smith did not properly exhaust this ineffectiveness claim in the

state courts, and therefore the claim is procedurally barred. Response at 39-

42. For the reasons stated in Section VI.A., the Court finds that Smith

sufficiently exhausted this ineffectiveness claim in the state courts. He raised

the ineffectiveness claim in his Rule 3.850 motion. Doc. 6-1 at 1092-93. The

postconviction court denied the Rule 3.850 motion with respect to the claim,

stating in pertinent part:

Defendant alleges counsel was ineffective for

failing to inform the trial court that the “remaining in”

language should have been removed from the

information and jury instructions because the State

did not prove an invited entry.

As an initial matter, it must be pointed out that

Defendant states an incorrect burden of proof. It is not

the State’s burden to prove a defendant had consent to

enter a property; rather, to prove a burglary, the State

has the burden to establish unlawful entry, i.e. entry

without invitation or license. As discussed above,

consent is an affirmative defense to burglary. §

810.015(3). A defendant has the initial burden of

establishing a consent defense, but thereafter the

burden shifts to the state to disprove the defense

beyond a reasonable doubt. Dubois, 43 Fla. L. Weekly

D943b (citation omitted).[9] In other words, to

establish a consent defense, a defendant must prove

he entered the structure with the invitation of one in

possession of the structure. If the defendant

establishes he had consent for the initial entry, then

the State must prove that the consent was

subsequently withdrawn. Id. Accordingly, any of

Defendant’s allegations based on the State’s failure to

prove licensed or invited entry are meritless.

To the extent this ground could be construed as

alleging ineffective assistance of counsel for failure to

object to a defective information or jury instructions,

this claim is also without merit. Defendant claims the

“remaining in” language is “only applicable when

there is consensual entry and the remaining in was

done ‘surreptitiously.’” (Def.’s Mot. 7.)[10]

For a short time prior to the enactment of section

810.015, the “remaining in” language in section 810.02

was interpreted to apply “only in situations where the

remaining in was done surreptitiously.” Delgado v.

State, 776 So. 2d 233, 240 (Fla. 2000), superseded by

statute, Ch. 2001-58, § 1, Laws of Fla. However,

[s]hortly after the decision in Delgado, the Florida

Legislature enacted legislation abrogating that

decision, and clarifying that ‘for a burglary to occur, it

is not necessary for the licensed or invited person to

remain in the dwelling, structure or conveyance

surreptitiously.” Bradley v. State, 33 So. 3d 664, 681

(Fla. 2010) (footnote omitted).

As to the information filed against Defendant, it

sufficiently charged him with burglary as it followed

section 810.02, Florida Statutes (2012), clearly

charged each of the essential elements, and

9 Dubois v. State, 247 So. 3d 34 (Fla. 1st DCA 2018).

10 Doc. 6-1 at 1092.

sufficiently advised Defendant of the specific crime

with which he was charged. Price v. State, 995 So. 2d

401, 404 (Fla. 2008); see also Edwards v. State, 128 So.

3d 134, 136 (Fla. 1st DCA 2013) (citation omitted) (“An

information is fundamentally defective only where it

totally omits an essential element of the crime or is so

vague, indistinct or indefinite that the defendant is

misled or exposed to double jeopardy.”).

As to the jury instructions, the Court instructed

the jury as follows:

As to Count I, to prove the crime of Armed Burglary

with Assault, the State must first prove that a

Burglary was committed beyond a reasonable doubt.

“Burglary” is defined by the following three elements:

. . .

3. MICHAEL LEE SMITH was not invited to enter the

structure, or

If you find that the Defendant was invited or had

permission to enter [the] structure, that after entering

the structure, Defendant remained inside the

structure:

A. After permission to remain had been

withdrawn and with the intent to commit an offense

other than burglary inside the structure . . .

(Exs. G at 629-30, H.)[11]

Because it was disputed at trial whether

Defendant did or did not have consent for the initial

entry into Mr. Dodd’s trailer, it was proper to instruct

the jury on both uninvited entry and remaining in

after permission had been withdrawn. Any objection

made by counsel regarding the “remaining in”

11 Doc. 6-2 at 276-77, 281.

language in either the information or the jury

instructions would have been meritless. Counsel

cannot be deemed ineffective for failing to make a

meritless objection. Schoenwetter v. State, 46 So. 3d

535, 546 (Fla. 2010). Thus, Defendant is not entitled to

relief on Ground Four.

Doc. 6-2 at 8-10 (footnote omitted). The First DCA affirmed the postconviction

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

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

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

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

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

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

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

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

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

to relief on the basis of the ineffectiveness claim.

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

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

because the record supports the postconviction court’s conclusion. On this

record, Smith has failed to carry his burden of showing that his counsel’s

representation fell outside that range of reasonable professional assistance. As

the postconviction court recognized, counsel cannot be deemed ineffective for

failure to make a meritless argument. See Schoenwetter v. State, 46 So. 3d

535, 546 (Fla. 2010). Even assuming arguendo deficient performance by

defense counsel, Smith has not shown any resulting prejudice. He has not

shown that a reasonable probability exists that the outcome of the case would

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

ineffectiveness claim is without merit since he has shown neither deficient

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

federal habeas relief on the ineffectiveness claims raised in ground three.

C. Ground Four

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

failed to move for a judgment of acquittal when the evidence was insufficient

to support a conviction for attempted armed robbery with a deadly weapon

(count two). Petition at 12-13. He raised this ineffectiveness claim in his Rule

3.850 motion. Doc. 6-1 at 1094-95. The postconviction court denied the Rule

3.850 motion with respect to the claim, stating in pertinent part:

Defendant alleges counsel was ineffective for

failing to move for judgment of acquittal as to Count

Two, Attempted Armed Robbery, where no evidence

was introduced that the BB gun Defendant claims he

used was a “deadly weapon.”

As set forth above, “[t]he purpose of a motion for

judgment of acquittal is to challenge the legal

sufficiency of the evidence.” Prehn, 566 So. 2d at 1363

(citation omitted). “[C]ourts should not grant a motion

for judgment of acquittal unless the evidence is such

that no view which the jury may lawfully take of it

favorable to the opposite party can be sustained under

the law.” Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974).

Thus, conflicting evidence “does not justify a judgment

of acquittal because any conflicts in the evidence must

be viewed in a light most favorable to the state.”

Brown v. State, 243 So. 3d 1037, 1040 (Fla. 1st DCA

2018).

Here, conflicting evidence was presented at trial

regarding the type of gun Defendant brandished

during the robbery. Defendant introduced a BB gun he

claimed was the weapon he used. (Ex. G at 395.) He

testified the BB gun was not capable of actually firing

BBs because his son had broken it. (Ex. G at 396.)

Rebecca Dodd testified the gun Defendant brandished

“looked like a black handgun . . . kind of like the ones

the cops carry.” (Ex. G at 266.) Later, when shown the

BB gun, Ms. Dodd testified it looked similar in size and

color to the gun she observed Defendant pointing, but

she did not recall seeing any gray on it. (Ex. G at 444-

45.) She testified she was not sure the BB gun

introduced into evidence was the same gun used in the

robbery. (Ex. G at 445.) Courtney Barnes testified the

gun Defendant brandished “was a small handgun.

Could have been a 9 millimeter.” (Ex. G at 324.) When

shown the BB gun, Ms. Barnes did not recognize it and

stated she was “pretty sure . . . the gun he had was

completely black.” (Ex. G at 447.) She also testified the

gun used during the incident was not “messed up” like

the BB gun introduced at trial. (Ex. G at 447.) Thus,

in the light most favorable to the State, the evidence

tends to show the BB gun was not the same gun used

during the robbery.

Moreover, the issue of whether a BB or pellet

gun is a deadly weapon is a factual question to be

answered by the jury. Dale v. State, 703 So. 2d 1045,

1047 (Fla. 1997). In order to prove a BB gun is a deadly

weapon, the State must prove that it was “‘used or

threatened to be used in a way likely to produce death

or great bodily harm.’” Winbush v. State, 174 So. 3d

1088, 1089 (Fla. 1st DCA 2015) (citing Fla. Std. Jury

Instr. (Crim.) 15.2.). “A jury can conclude that a

weapon is . . . deadly if it is implied by the defendant’s

words or actions.” Gartner v. State, 118 So. 3d 273, 277

(Fla. 5th DCA 2013) (concluding victim’s testimony

that defendant showed her butt of gun during robbery

was sufficient evidence for issue of whether BB gun

was a deadly weapon to reach jury); see Swanson v.

State, 98 So. 3d 135 (Fla. 1st DCA 2012) (citing

Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997)

(evidence that defendant handled a BB gun, which

look like a .22 caliber semi-automatic pistol, as if it

was loaded and operable was sufficient to sustain

convictions for robbery and aggravated assault with a

deadly weapon even though BB gun was not loaded);

C.W. v. State, 205 So. 3d 843, 845 (Fla. 2d 2016

(explaining that whether BB gun was a deadly weapon

was a jury question when there was evidence that

defendant used gun in threatening manner even

though State presented no evidence that BB gun was

loaded and capable of causing great bodily harm).

At trial, the State presented two victims who

testified as to the threatening manner in which

Defendant used his gun. Rebecca Dodd stated that

Defendant pointed a gun at Mr. Dodd in close range

while demanding drugs and money. (Ex. G at 265-66.)

Courtney Barnes testified the gunman pointed a gun

at Mr. Dodd as soon as he came into the room, and

continued to point the gun while demanding drugs,

money, and for everyone to empty their pockets. (Ex.

G at 323-28.) Thus, Defendant’s threatening actions

and words implied that the gun he was brandishing

was deadly.

Accordingly, had counsel moved for judgment of

acquittal due to the lack of evidence that the BB gun

was a “deadly weapon,” the Court would not have

granted same because: (1) there was conflicting

evidence regarding whether the BB gun was even the

same gun used during the robbery; and (2) even if no

testimony had been presented at trial to contradict

Defendant’s evidence that the weapon he brandished

was a BB gun, the issue of whether the BB gun was a

deadly weapon was still a factual question to be

answered by the jury. Counsel cannot be deemed

ineffective for failing to make a meritless argument.

Teffeteller, 734 So. 2d at 1023. Defendant is not

entitled to relief on this ground.

Doc. 6-2 at 10-12. The First DCA affirmed the postconviction court’s denial of

relief and later denied Smith’s motion for rehearing.